Friends-
Thought this new blog post
(http://blog.archive.org/2020/03/30/internet-archive-responds-why-we-released-the-national-emergency-library/)
regarding the would be of interest. Seems to answer a lot of questions I’ve
been seeing on library email, Facebook, and Twitter.
All the best,
Marcia
Internet Archive responds: Why we released the National Emergency Library
Posted on March 30,
2020<http://blog.archive.org/2020/03/30/internet-archive-responds-why-we-released-the-national-emergency-library/>
by chrisfreeland<http://blog.archive.org/author/chrisfreeland/>
Last Tuesday we launched a National Emergency
Library<http://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/>—1.4M
digitized books available to users without a waitlist—in response to the
rolling wave of school and library closures that remain in place to date. We’ve
received dozens of messages of thanks from teachers and school librarians, who
can now help their students access books while their schools, school libraries,
and public libraries are closed.
We’ve been asked why we suspended waitlists. On March 17, the American Library
Association Executive Board took the extraordinary step to recommend that the
nation’s libraries
close<http://www.ala.org/news/press-releases/2020/03/ala-executive-board-recommends-closing-libraries-public>
in response to the COVID-19 outbreak. In doing so, for the first time in
history, the entirety of the nation’s print collection housed in libraries is
now unavailable, locked away indefinitely behind closed doors.
This is a tremendous and historic outage. According to IMLS FY17 Public
Libraries
survey<https://www.imls.gov/research-evaluation/data-collection/public-libraries-survey>
(the last fiscal year for which data is publicly available), in FY17 there
were more than 716 million physical books in US public libraries. Using the
same data, which shows a 2-3% decline in collection holdings per year, we can
estimate that public libraries have approximately 650 million books on their
shelves in 2020. Right now, today, there are 650 million books that tax-paying
citizens have paid to access that are sitting on shelves in closed libraries,
inaccessible to them. And that’s just in public libraries.
And so, to meet this unprecedented need at a scale never before seen, we
suspended waitlists on our lending collection. As we anticipated, critics
including the Authors Guild and the Association of American Publishers have
released statements
(here<https://www.authorsguild.org/industry-advocacy/internet-archives-uncontrolled-digital-lending/>
and
here<https://publishers.org/news/comment-from-aap-president-and-ceo-maria-pallante-on-the-internet-archives-national-emergency-library/>)
condemning the National Emergency Library and the Internet Archive. Both
statements contain falsehoods that are being spread widely online. To counter
the misinformation, we are addressing the most egregious points here and have
also updated our
FAQs<https://drive.google.com/open?id=1QjErbouWG7pUlzcxPcRk4YEtbYs8ItlVTgLa1DfGh68>.
One of the statements suggests you’ve acquired your books illegally. Is that
true?
No. The books in the National Emergency Library have been acquired through
purchase or donation, just like a traditional library. The Internet Archive
preserves and digitizes the books it owns and makes those scans available for
users to borrow online, normally one at a time. That borrowing threshold has
been suspended through June 30, 2020, or the end of the US national emergency.
Is the Internet Archive a library?
Yes. The Internet Archive is a 501(c)(3) non-profit public charity and is
recognized as a library by the government.
What is the legal basis for Internet Archive’s digital lending during normal
times?
The concept and practice of controlled digital
lending<https://controlleddigitallending.org/> (CDL) has been around for about
a decade. It is a lend-like-print system where the library loans out a digital
version of a book it owns to one reader at a time, using the same technical
protections that publishers use to prevent further redistribution. The legal
doctrine underlying this system is fair use, as explained in the Position
Statement<https://controlleddigitallending.org/statement> on Controlled Digital
Lending.
Does CDL violate federal law? What about appellate rulings?
No, and many copyright experts
agree<https://controlleddigitallending.org/signatories>. CDL relies on a set of
careful controls that are designed to mimic the traditional lending model of
libraries. To quote from the White Paper on Controlled Digital Lending of
Library Books<https://controlleddigitallending.org/whitepaper>:
“Our principal legal argument for controlled digital lending is that fair use—
an “equitable rule of reason”—permits libraries to do online what they have
always done with physical collections under the first sale doctrine: lend
books. The first sale doctrine, codified in Section 109 of the Copyright Act,
provides that anyone who legally acquires a copyrighted work from the copyright
holder receives the right to sell, display, or otherwise dispose of that
particular copy, notwithstanding the interests of the copyright owner. This is
how libraries loan books. Additionally, fair use ultimately asks, “whether the
copyright law’s goal of promoting the Progress of Science and useful Arts would
be better served by allowing the use than by preventing it.” In this case we
believe it would be. Controlled digital lending as we conceive it is premised
on the idea that libraries can embrace their traditional lending role to the
digital environment. The system we propose maintains the market balance
long-recognized by the courts and Congress as between rightsholders and
libraries, and makes it possible for libraries to fulfill their “vital function
in society” by enabling the lending of books to benefit the general learning,
research, and intellectual enrichment of readers by allowing them limited and
controlled digital access to materials online.”
Some have argued that the ReDigi
case<http://www.ca2.uscourts.gov/decisions/isysquery/68b0f5b0-9593-4dd2-b23e-2f782e6042c5/1/doc/16-2321_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/68b0f5b0-9593-4dd2-b23e-2f782e6042c5/1/hilite/>
that held that commercially reselling iTunes music files is not a fair use
“precludes” CDL. This is not true, and
others<https://firstmonday.org/ojs/index.php/fm/article/view/9644>
have<https://www.authorsalliance.org/2019/01/18/kevin-smith-on-lessons-from-the-redigi-decision/>
argued<https://blogs.harvard.edu/copyrightosc/2019/03/01/fair-use-week-2019-day-five-with-guest-expert-david-r-hansen-and-kyle-k-courtney/>
that this case actually makes the fair use case for CDL stronger.
How is the National Emergency Library different from the Internet Archive’s
normal digital lending?
Because libraries around the country and globe are closed due to the COVID-19
pandemic, Internet Archive has suspended our waitlists temporarily. This means
that multiple readers can access a digital book simultaneously, yet still by
borrowing the book, meaning that it is returned after 2 weeks and cannot be
redistributed.
Is the Internet Archive making these books available without restriction?
No. Readers who borrow a book from the National Emergency Library get it for
only two weeks, and their access is disabled unless they check it out again.
Internet Archive also uses the same technical protections that publishers use
on their ebook offerings in order to prevent additional copies from being made
or redistributed.
What about those who say we’re stealing from authors & publishers?
Libraries buy books or get them from donations and lend them out. This has been
true and legal for centuries. The idea that this is stealing fundamentally
misunderstands the role of libraries in the information ecosystem. As Professor
Ariel Katz, in his paper Copyright, Exhaustion, and the Role of Libraries in
the Ecosystem of
Knowledge<https://tspace.library.utoronto.ca/bitstream/1807/89456/1/Katz%20Copyright%2C%20Exhaustion.pdf>
explains:
“Historically, libraries predate copyright, and the institutional role of
libraries and institutions of higher learning in the “promotion of science” and
the “encouragement of learning” was acknowledged before legislators decided to
grant authors exclusive rights in their writings. The historical precedence of
libraries and the legal recognition of their public function cannot determine
every contemporary copyright question, but this historical fact is not devoid
of legal consequence… As long as the copyright ecosystem has a public purpose,
then some of the functions that libraries perform are not only fundamental but
also indispensable for attaining this purpose. Therefore, the legal rules …
that allow libraries to perform these functions remain, and will continue to
be, as integral to the copyright system as the copyright itself.”
Do libraries have to ask authors or publishers to digitize their books?
No. Digitizing books to make accessible copies available to the visually
impaired is explicitly allowed under 17 USC
121<https://www.law.cornell.edu/uscode/text/17/121> in the US and around the
world under the Marrakesh
Treaty<https://www.wipo.int/treaties/en/ip/marrakesh/summary_marrakesh.html>.
Further, US
courts<https://scholar.google.com/scholar_case?case=4571528653505160061&q=hathitrust&hl=en&as_sdt=2006>
have held that it is fair use for libraries to digitize books for various
additional purposes.
Have authors opted out?
Yes, we’ve had authors opt out. We anticipated that would happen as well; in
fact, we launched with clear instructions on how to opt
out<https://drive.google.com/open?id=1QjErbouWG7pUlzcxPcRk4YEtbYs8ItlVTgLa1DfGh68>
because we understand that authors and creators have been impacted by the same
global pandemic that has shuttered libraries and left students without access
to print books. Our takedowns are completed quickly and the submitter is
notified via email.
Doesn’t my local library already provide access to all of these books?
No. The Internet Archive has focused our collecting on books published between
the 1920s and early 2000s, the vast majority of which don’t have a commercially
available ebook. Our collection priorities have focused on the broad range of
library books to support education and scholarship and have not focused on the
latest best sellers that would be featured in a bookstore.
Further, there are approximately 650 million books in public libraries that are
locked away and inaccessible during closures related to COVID-19. Many of
these are print books that don’t have an ebook equivalent except for the
version we’ve scanned. For those books, the only way for a patron to access
them while their library is closed is through our scanned copy.
I’ve looked at the books and they’re just images of the pages. I get better
ebooks from my public library.
Yes, you do. The Internet Archive takes a picture of each page of its books,
and then makes those page images available in an online book reader and
encrypted PDFs. We also make encrypted EPUBs available, but they are based on
uncorrected OCR, which has errors. The experience is inferior to what you’ve
become accustomed to with Kindle devices. We are making an accessible
facsimile of the printed book available to users, not a high quality EPUB like
you would find with a modern ebook.
What will happen after June 30 or the end of the US national emergency?
Waitlists will be suspended through June 30, 2020, or the end of the US
national emergency, whichever is later. After that, the waitlists will be
reimplemented thus limiting the number of borrowable copies to those physical
books owned and not being lent.
About chrisfreeland
Chris Freeland is the Director of Open Libraries at Internet Archive.
---
Marcia A. Mardis
Professor and Associate Dean
Associate Director, Information Policy, Management and Use Institute
Research Faculty, Institute for Digital Information and Scientific
Communication (iDigInfo)
iSchool@Florida State University
mmardis@xxxxxxx<mailto:mmardis@xxxxxxx>
