Copyright law does not permit the reproduction and distribution of unlimited physical or digital copies of a copyrighted work without the relevant copyright holder’s authorization. While this may sound obvious with regard to physical copies of copyrighted works, there has been significant litigation over digital works over the years. Of course, brick-and-mortar libraries permit only one user to check out a particular physical book at a time. Because of copyright laws, under what is called controlled digital lending, online libraries limit the number of users who can check out a digital copy of a book (or e-book), and when that limit is reached, the requester is placed on a wait list until one of the digital copies is “returned” by the user. In practice, the loan simply just expires and the digital copy is then freed up for the next person on the wait list.
The Internet Archive is a 501(c)(3) nonprofit public charity operating in the United States, and maintains a library of both public domain books, i.e., books no longer subject to copyright law (about 2.5 million as of this writing) and copyrighted books (about 1.4 million as of this writing). Previously, only a limited number of copies of the digital copyrighted e-books were available, and then the requesting user was placed on a waiting list until one of the available digital books was checked in. This is similar to how public libraries have handled digital loans.
Last week, however, the Internet Archive, without obtaining authorization from the copyright holders of the works still subject to copyright law, unilaterally created a “National Emergency Library” to permit unlimited copies of the approximately 1.4 million copyrighted e-books in the Internet Archive. Anyone around the world with an email address may access unlimited digital copies of copyrighted e-books from the library, for an unlimited period of time (provided the e-book is renewed) throughout the duration of the time the National Emergency Library is available.
The stated goal of this step was to respond to the current COVID-19 pandemic that has resulted in widespread library and school closures, making access to books difficult during this time. This National Emergency Library is intended to be available until the later of June 30, 2020 or the end of the national emergency. While the Internet Archive- has reported support for this action by individuals, libraries, and some universities, the Internet Archive has also recognized that this action may not be met with approval from all rights holders. Accordingly, those who do not want their books in the National Emergency Library should send an email to info@archive.org with “National Emergency Library Removal Request” as the subject line, and include each URL of the book or books they wish to be removed. The Internet Archive indicates it may take 72 hours to process such requests. The Internet Archive reports that some rights holders have indeed opted out and that removal of the opt-outs from the National Emergency Library are then confirmed via email. Conversely, the Internet Archive is also requesting that anyone who wishes to contribute their copyrighted works to the National Emergency Library also contact info@archive.org.
The Internet Archive encourages those who can purchase a book to support their local bookstore, or purchase them on Amazon or Better World Books.
Responses by the rights holders to this unprecedented action are still unfolding, and the issues can be complicated. For more information, please contact Linda Zirkelbach, chair of Venable’s Publishing Law Practice, at lzirkelbach@venable.com or 202-344-4410.