Free Internet Calling Archives

Brewster Kahle at the Internet Archive offices in San Francisco, 2010. (Beatrice Murch / CC BY 2.0)

When Covid-19 struck, hundreds of millions of students were suddenly stranded at home without access to teachers or libraries. UNESCO reported that in April, 90 percent of the world’s enrolled students had been adversely affected by the pandemic. In response, the Internet Archive’s Open Library announced the National Emergency Library, a temporary program suspending limits on the number of patrons who could borrow its digital books simultaneously. The Open Library lends at no charge about 4 million digital books, 2.5 million of which are in the public domain, and 1.4 million of which may be under copyright and subject to lending restrictions. (This is roughly equivalent to a medium-sized city library; the New York Public Library, by comparison, holds 21.9 million books and printed materials and 1.78 million e-books, according to 2016 figures from the American Library Association.) But the National Emergency Library wound up creating an emergency of its own—for the future of libraries.

Brewster Kahle, the Internet Archive’s founder and digital librarian, wrote in March that the National Emergency Library would ensure “that students will have access to assigned readings and library materials…for the remainder of the US academic calendar.” He acknowledged that authors and publishers would also be harmed by the pandemic, urged those in a position to buy books to do so, and offered authors a form for removing their own books from the program, if they chose.

More than 100 libraries, archives, and other institutions signed on to a statement of support for the program, including MIT, Penn State, Emory University, the Boston Public Library, Middlebury College, Amherst College, George Washington University, the Claremont Colleges Library, and the Greater Western Library Alliance. Writing in The New Yorker, Harvard history professor and author Jill Lepore joined many media observers in praising the National Emergency Library as “a gift to readers everywhere.”

A number of other authors, however, took to Twitter to complain.

a public good

“Guys. Not helpful,” tweeted novelist Neil Gaiman.

“They scan books illegally and put them online. It’s not a library,” novelist Colson Whitehead tweeted in March. (I wrote last week to ask Whitehead what laws he thought were being broken, or whether he’d since altered his views on this matter, and he declined to comment.)

On June 1, Whitehead’s publisher, Penguin Random House, together with fellow megapublishers Hachette, HarperCollins, and Wiley, filed a lawsuit against the Internet Archive alleging “mass copyright infringement.” The Internet Archive closed the National Emergency Library on June 16, citing the lawsuit and calling for the publishers to stand down. But the plaintiffs are continuing to press their claims, and are now seeking to close the whole Open Library permanently.

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The trial is set for next year in federal court, with initial disclosures for discovery scheduled to take place next week. The publishers’ “prayer for relief” seeks to destroy the Open Library’s existing books, and to soak the Internet Archive for a lot of money; in their response, the Archive is looking to have its opponents’ claims denied in full, its legal costs paid, and “such other and further relief as the Court deems just and equitable.” But what’s really at stake in this lawsuit is the idea of ownership itself—what it means not only for a library but for anyone to own a book.

The Internet Archive is far more than the Open Library; it’s a nonprofit institution that has become a cornerstone of archival activity throughout the world. Brewster Kahle is an Internet pioneer who was writing about the importance of preserving the digital commons in 1996. He built the Wayback Machine, without which an incalculable amount of the early Web would have been lost for good. The Internet Archive has performed pioneering work in developing public search tools for its own vast collections, such as the television news archive, which researchers and journalists like me use on an almost daily basis in order to contextualize and interpret political reporting. These resources are unique and irreplaceable.

The Internet Archive is a tech partner to hundreds of libraries, including the Library of Congress, for whom it develops techniques for the stewardship of digital content. It helps them build their own Web-based collections with tools such as Archive-It, which is currently used by more than 600 organizations including universities, museums, and government agencies, as well as libraries, to create their own searchable public archives. The Internet Archive repairs broken links on Wikipedia—by the million. It has collected thousands of early computer games, and developed online emulators so they can be played on modern computers. It hosts collections of live music performances, 78s and cylinder recordings, radio shows, films and video. I am leaving a lot out about its groundbreaking work in making scholarly materials more accessible, its projects to expand books to the print-disabled—too many undertakings and achievements to count.

For-profit publishers like HarperCollins or Hachette don’t perform the kind of work required to preserve a cultural posterity. Publishers are not archivists. They obey the dictates of the market. They keep books in print based on market considerations, not cultural ones. Archiving is not in the purview or even the interests of big publishers, who indeed have an incentive to encourage the continuing need to buy.

But in a healthy society, the need for authors and artists to be compensated fairly is balanced against the need to preserve a rich and robust public commons for the benefit of the culture as a whole. Publishers are stewards of the right of authors to make a fair living; librarians are stewards of cultural posterity. Brewster Kahle, and the Internet Archive, are librarians, and the Internet Archive is a new kind of library.

I first spoke with Kahle in 2013, when he became one of just a handful of people in the United States permitted to discuss his receipt of a National Security Letter from the NSA. Hundreds of thousands of these letters were sent out, but only the three that had been successfully challenged in court, and thus rescinded, could be discussed in public without risking imprisonment. The NSA had demanded that the Internet Archive divulge personal information about a library patron, and the only way to refuse to comply (without being jailed) was to sue the government, so that’s what Kahle decided to do. The Internet Archive won that lawsuit, with the help of the Electronic Frontier Foundation and the ACLU.

“I’m a librarian!” he told me, back then. “Libraries have had a long history of dealing with authoritarian organizations demanding reader records—just, who’s read what—and this has led to people being rounded up and killed.”

Now Kahle finds himself on the other side of a lawsuit. The key issue in this one is the as-yet-untested legal theory of Controlled Digital Lending (CDL), which the Internet Archive and partner libraries have been working out over the last few years, in order to deal fairly with the new question of lending digitized books within the parameters of existing copyright law. CDL was designed to mirror the age-old library practice of (1) buying or otherwise acquiring a physical book, and (2) loaning it out to one patron at a time.

Like a traditional library, the Internet Archive buys or accepts donations of physical books. The archive scans its physical books, making one digital copy available for each physical book it owns. The digitized copies are then loaned out for a limited period, like a traditional library loan. The physical books from which the scans were made are stored and do not circulate, a practice known as “own-to-loan.”

Harvard copyright scholar and lawyer Kyle Courtney has explained this reasoning very clearly. “Libraries do not need permission or a license to loan those books that they have purchased or acquired,” he said at a recent conference. “Copyright law covers those exact issues.… Congress actually placed all of these specialized copyright exemptions for libraries in the Copyright Act itself.”

The for-profit publishers in the lawsuit, however, do not care for this idea. What they allege in the complaint is this: “Without any license or any payment to authors or publishers, IA [the Internet Archive] scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites.”

What this ominous description fails to acknowledge is that all libraries that lend e-books “distribute verbatim digital copies of the books in whole via public-facing websites.” Yet the publishers claim later in the same document that they have no beef with regular libraries. They love libraries, they say (“Publishers have long supported public libraries, recognizing the significant benefits to the public of ready access to books and other publications”), and are “in partnership” with them: “This partnership turns upon a well-developed and longstanding library market, through which public libraries buy print books and license ebooks (or agree to terms of sale for ebooks) from publishers.”

The real issue emerges here: The words “license ebooks” are the most important ones in the whole lawsuit.

Publishers approve of libraries paying for e-book licenses because they’re temporary, just like your right to watch a movie on Netflix is temporary and can evaporate at any moment. In the same way, publishers would like to see libraries obliged to license, not to own, books—that is, continue to pay for the same book again and again. That’s what this lawsuit is really about. It’s impossible to avoid the conclusion that publishers took advantage of the pandemic to achieve what they had not been able to achieve previously: to turn the library system into a “reading as a service” operation from which they can squeeze profits forever.

Their argument also hinges on the notion that it’s illegal to scan a book that you own. Note that this is what’s being claimed in the complaint: that the books are “illegally scanned,” as Whitehead tweeted back in March. It’s not just the distribution of “pirated” copies they’re trying to prevent. It’s doing as you wish with your own property.

This runs deeper than the question of digital format. NYU law professor Jason Schultz, co-author of The End of Ownership, explained it in an e-mail: “The key here is that our law and cultures have always distinguished between owning something and temporarily purchasing access to something. Most people know the difference between owning a home and renting one, or owning a tuxedo or renting one. We also know this with most media, for example the difference between buying a copy of a film on DVD and going to see it in the theater.”

The Internet is 31 years old, and in those three short decades the virtual world we’ve come to depend on has slowly eroded the idea of private ownership—literally, your right to call your belongings your own. Things you used to buy just once, such as your own private copies of software like Photoshop or Word, your privately owned vinyl discs and CDs, or movies on VHS—have increasingly begun to come through dispensing services you pay for every month, from vendors like Adobe, Netflix, Hulu, and Spotify. And you’ll never stop paying.

That rentier mentality is now reaching into the world of books. As Schultz elaborated: “For each physical book that a library owns, it can lend it out to whomever it chooses for as long as it wants and the copyright owner has no say in how such lending happens. But here, because digital technology is involved, the publishers are asserting that they can control how/when/where/why libraries lend out digital copies.… In other words, they want to change the rules in their favor and take away one of the most cherished and valuable contributions that libraries make to society—allowing members of the public to read for free from the library’s collection.”

The oldest surviving library in England was founded in 1653 through the bequest of Humphrey Chetham, a Manchester textile merchant and banker, “for the use of schollars and others well affected to learning, the books to remain as a public library for ever.” Chetham’s Library has been in continuous operation as a free public library for more than 350 years. The first keeper was charged with opening “from 8 till 11 in the morning, and from one till four in the afternoon,” and “to require nothing of any man that cometh into the library.”

We’ve come a long way since then—for good or ill—but the Internet isn’t as inherently democratic as Silicon Valley would like us to believe. Technology at the end of the 20th century advanced too quickly to prevent all kinds of unwanted consequences and threats to laws and long-held principles, like a boom town built with no zoning, ramshackle and rowdy, by people more intent on finding gold than on creating a worthwhile community in which to live.

It’s not easy getting anyone at the Internet Archive to discuss these matters in the middle of litigation, but I did manage to speak with Brewster Kahle for a few moments.

“Libraries buy, preserve, and lend,” he said. “That’s been the model forever. [Libraries] actually supply about 20 percent of the revenue to the publishing industry. But if they cannot buy, preserve, and lend—if all they become is a redistributor, a Netflix for books—my God, we have a society that can get really out of control. Because if a publisher maintains control over every reading event, who’s allowed to read it, when are they allowed to read it, if they’re allowed to read it, and be able to prevent anybody, or particular regions, from being able to see something, we are in George Orwell world.

“What libraries do, is they buy, preserve, and lend. What this lawsuit is about—they’re saying the libraries cannot buy, they cannot preserve, and they cannot lend.”

Libraries have operated on those principles for thousands of years, collecting, preserving, and sharing knowledge not for profit but as a public good—requiring nothing. For many centuries, young people of limited means have been the explicitly intended beneficiaries and users of libraries. Some of those young people grew up to write books themselves. It would be a tragedy if the profit motive were to succeed at last in putting an end to that.

The Internet Archive (also known as IA or Archive.org), home to the giant vault of internet and public domain history known as the Wayback Machine, is currently facing a crisis — one largely defined by misinformation. A group of publishing companies filed a scathing copyright lawsuit earlier this month over the IA’s controversial attempt to open an “Emergency Library” during the coronavirus pandemic. Ever since, confusion about the scope of the lawsuit and its potential impact on the IA as a whole has stoked fears of a crackdown on the IA’s many projects, including its gargantuan archive of the historical internet.

But much of that fear seems to be exaggerated. And while the lawsuit is a big deal for advocates of an open internet, it’s probably not the existential threat to the IA that you may have heard it is.

The Internet Archive is a preservation project — but some publishers think it’s piracy

The Internet Archive is a nonprofit internet archival organization. Founded in 1996, it digitally preserves more than 1.4 million books and historical documents, as well as cached versions of websites captured over a long period of time. Its most famous project is the Wayback Machine, a digital collection of roughly 390 billion pages dating back to 1996. It’s the deepest archive of internet history in existence. Among the IA’s other projects is the Open Library, a virtual library that allows users to freely borrow digital copies of books that are uploaded and archived through the project — both books in the public domain and books under copyright.

As my colleague Constance Grady recently explained, the Internet Archive owns physical copies of all the books it digitizes and claims the right to loan out the digital copies, as long as no more than one digital copy of a book is in circulation at a time. The IA’s right to do so has been endorsed by many librarians and legal experts. But many critics of this approach, especially those within the publishing industry, have long argued that the IA’s Open Library is piracy because it distributes books as image files rather than appropriately licensing the works and compensating authors. Additionally, politicians like North Carolina Sen. Thom Tillis, a Republican who chairs the Senate Judiciary Committee’s Subcommittee on Intellectual Property, have attacked the Internet Archive as a way to argue for more stringent copyright laws.

In March, the Internet Archive pushed its already dubious reading of the law even further by temporarily easing its lending restrictions amid the pandemic to allow multiple people to check out the same digital copy of a book at once. The IA dubbed this temporary change the “National Emergency Library.” The IA’s description of what this change meant wasn’t very clear, but in the very last line of a blog post announcing the Emergency Library, it clarified that after the “US national emergency” ended, “The waitlists will be reimplemented thus limiting the number of borrowable copies to those physical books owned.” In other words, while the Emergency Library was underway, IA would loan out more digital files than it actually owned.

By any stretch of the law, that rises to the level of copyright infringement, even though the illegal copies were being shared only temporarily. Whether you view that type of infringement as unethical is a different issue; as the Internet Archive argued, “The idea that this is stealing fundamentally misunderstands the role of libraries in the information ecosystem.”

Publishers predictably found this logic unconvincing. On June 1, Hachette, Penguin Random House, HarperCollins, and other publishers sued the IA, claiming that both the regular Open Library and the Emergency Library are forms of piracy. The IA responded by ending the Emergency Library project on June 16, days after the lawsuit was publicly announced, asking that “the publishers call off their costly assault.” It’s unclear whether the move will actually lead to the suit’s withdrawal. The publishers’ legal representatives referred Vox to the Association of American Publishers, which includes the plaintiffs in the lawsuit. When reached for comment, a representative for the Association shared the group’s statement concerning the suit, which calls the IA “brazen” and “self-serving” and notes that the lawsuit “reflects widespread anger among publishers, authors, and the entire creative community regarding IA’s actions and its response to objections.”

The lawsuit asks the court for two main things: damages for publishers’ copyrighted works, and both a preliminary and permanent injunction of the IA’s digitization and lending processes. That all sounds dire for the Internet Archive’s future. But there seems to be lots of confusion about what the lawsuit’s actual impact on the organization and its various projects will be— and it’s not as bad as previous media reports have indicated.

Rumors of the Internet Archive’s potential demise have been greatly exaggerated

When news of the lawsuit first broke, much of the reporting surrounding it was hyperbolic and alarmist. “A win for the publishers could easily bankrupt the Internet Archive,” reported Ars Technica. “The [suit] puts one of the internet’s largest repositories of knowledge in peril,” reported Vice, which also noted that supporters of the IA’s various preservation projectswere already rushing to try to create backups of the entire archive.

All of this would reasonably give the impression that the publishers’ lawsuit seeks to permanently halt the entire Internet Archive and all of its projects, even the ones that have nothing to do with its book-lending program. What’s more, most of the early reporting about the lawsuit incorrectly claimed that plaintiffs were seeking damages for millions of books in the IA’s giant vault. “If the court finds that Internet Archive ”willfully” infringed copyright,” tech site Decrypt claimed, “the library could be on the hook for up to $150,000 in damages—per each of the 1.4 million titles. (You do the math.)”

Such a sweeping injunction or financial devastation would destroy the IA, and with it the unique and vast records of the Wayback Machine. As a huge repository of internet history, digital record-keeping, and sociocultural trends, the Wayback Machine is essentially irreplaceable — which is why, as news of the lawsuit spread, many of the IA’s supporters were devastated and concerned about the lawsuit potentially destroying its work, especially the WaybackMachine.

But there’s a big problem with all of this — none of it is true.

What is true is that the lawsuit asks for a court injunction against the Internet Archive — but it only asks for a halt to the practice of copying books for loan in the Open Library itself, not the entire IA. And while the IA’s supporters might decry the demise of the library itself — after all, a permanent injunction against digitizing works under copyright would decimate the library, though public domain books would remain available — the lawsuit takes pains to clarify that the publishers aren’t trying to shut down the rest of the Internet Archive.

“Internet Archive provides a number of services not at issue in this action, including its Wayback Machineand digitization of public domain materials,” reads the suit’s complaint.

Then there’s the concern that the lawsuit asks for potentially debilitating financial damages from the archive. If it were true that the publishers claimed $150,000 for each of the millions of books digitized, that could certainly paralyze the entire nonprofit organization.

But in fact, the lawsuit seeks financial damages only for the sharing of 127 books under copyright, including titles like Gone Girl, A Dance with Dragons, and The Catcher in the Rye. If the court awards the plaintiffs the maximum amount provided under the law, the most the Internet Archive would have to pay would be $19 million — essentially equivalent to one year of operating revenue, according to IA tax documents. That’s a huge setback, but for the IA, a tech nonprofit that relies heavily on grants and public donations, it’s not the major death blow it might seem to be.

When asked about its funding reserves, Internet Archive founder Brewster Kahle told Vox that “beyond the monetary damages, the publishers are asking for the destruction of 1.4 million books, many of which do not exist in digital form anywhere else. That would be a real tragedy for people who depend on us for access to information.” He declined to comment further on the issue of funding.

The lawsuit might not destroy the IA, but it could hamper the aims of an “open internet”

All that said, a win for the plaintiffs in the lawsuit certainly isn’t ideal.

Much of the confusion and fear that this lawsuit could wipe out the Internet Archive reflects the fragile and ephemeral nature of internet culture, where entire websites can be wiped out overnight if their content isn’t backed up. In the Wayback Machine’s case, the organization provides access to a vital, 10-petabytecollection of internet history. Nothing else is archiving the internet but the Internet Archive itself. If something happens to it, it’s gone for good. And because of that anxiety, the conversation around the lawsuit has left the original copyright debate far behind — even though the lawsuit itself limits its focus to the IA’s Open Library only.

Speaking to Vox’s sister site The Verge, Kahle said the lawsuit was “disappointing” and argued that all of the books in the IA’s library have been uploaded legally:

As a library, the Internet Archive acquires books and lends them, as libraries have always done, Kahle told The Verge. This supports publishing and authors and readers. Publishers suing libraries for lending books — in this case, protected digitized versions, and while schools and libraries are closed — is not in anyone’s interest.

We hope this can be resolved quickly, he continued.

Kahle told Vox that the organization was “confident in our legal position.”

“When nonprofit libraries have been sued in the past for helping their patrons access their collections, courts have ruled that they were engaging in fair use, as in the HathiTrust case,” he said.

While plenty of confusion remains about whether the IA’s Open Library constitutes a legitimate library — and whether its noble purpose justifies some of its more piratical methods — most people agree that its aims are noble. Many of the initiative’s supporters see the IA as a vanguard of the “open internet.” That’s the broad philosophy of free and equal internet access that governs foundational parts of internet culture like open-source coding, Open Access scholarship, the Creative Commons, and the Internet Archive itself.

Kahle touched on this spirit of openness and cooperation, telling Vox, “We need collaboration between libraries, authors, booksellers, and publishers ... We hope for an amicable solution for libraries, authors, booksellers, and publishers because our information health depends on it.” He’s increasingly been joined in his archival efforts by prominent IA supporters. On Monday, the Association of Research Libraries issued a statement asking the publishers to drop the lawsuit.

“For nearly 25 years,” the Association’s statement reads, “the Internet Archive (IA) has been a force for good by capturing the world’s knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more.”

Because the Internet Archive is a well-established vanguard of open access, the lawsuit could potentially have a larger, chilling effect on internet archival and research practices — even if it fails, and even if that wasn’t the original intent. Let’s hope that the publishing industry can also recognize the Internet Archive as a force for good, before the lawsuit renders it a cautionary tale.

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