The Internet Archive’s Literary Civil War

A lesson I learned early in life: never piss off a librarian. Apparently District Court Judge John G. Koetl skipped out on a formative traumatic-shushing experience, because his recent ruling against the Internet Archive, a beloved digital library nonprofit, has riled up the biblio-archivist community. 

Some brief background: During the early days of Covid lockdowns, the Internet Archive launched a program called the National Emergency Library, or NEL. Since library closures had ripped millions upon millions of books out of circulation, the Internet Archive wanted to help people stuck at home access information. The NEL was part of a larger project called the Open Libraries Initiative, where the Internet Archive scans physical copies of library books and lets people digitally check them out. 

It was always meant to be temporary, but the NEL shut down early after some of the largest publishing houses banded together to sue for copyright infringement. This week, Koetl sided with the publishers. He didn’t buy the Internet Archive’s argument that its digitization project fell under the Fair Use doctrine. Sample line: “There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit.” The Internet Archive plans to appeal. 

As a general rule, I support the Internet Archive’s work. (The Wayback Machine deserves all the praise it gets, and then some.) As another general rule, though, I support writers’ efforts to protect their intellectual property and make money. Even prior to the lawsuit, some writers, like Colson Whitehead, criticized the NEL for cutting into authors’ incomes. Plus, professional groups like the US National Writers Union and the Authors Guild, among others, have applauded Koetl’s decision as a win for creative types. 

I wasn’t sure how to feel about this whole kerfuffle. Making it easier and less costly for libraries to lend out ebooks seemed obviously good. But taking money from writers seemed obviously bad. This fight, over the fairly niche issue of ebook copyrights, hits upon larger, ongoing conversations about paying artists, what it means to own digital works, and corporate price gouging. 

I called a few people on both sides of the issue to learn more about their positions—and ended up on the phone for hours, feeling for all the world like a kid listening to her beloved but divorcing parents bitterly complaining about each other. 

One important thing to understand about this conflict is that ebooks and physical books are not sold to libraries in the same way. Unlike physical books, ebooks are licensed out, so instead of owning them, libraries are essentially renting them. Each publisher has its own way of setting up licensing. Some are for fixed terms (say, two years) while others need to be renewed based on how many times they are lent out (say, every 26 times a book is borrowed). It can cost libraries exponentially more to keep an ebook in circulation versus a hard copy. Understandably, many librarians find these terms exploitative. Academic librarian Caroline Ball, who is based in the UK, tells me she had a business textbook that would’ve cost £16,000 ($19,800) for a single year. 

Ball sees the recent ruling as a disaster for library access, since it sides with the publishing companies controlling these onerous licensing agreements. “It’s reprehensible,” she says.

Author and independent journalist Edward Hasbrouck, who volunteers with the National Writers Union, does not find the ruling reprehensible. In fact, he’s elated. He says that the judge made the right call, and that the San Francisco–based Internet Archive has a “typical Silicon Valley attitude of laws-be-damned.” Hasbrouck finds it offensive to blame the ruling for bad ebook licensing arrangements. “The Internet Archive tried to force their own de facto licensing terms—free—onto us,” he says. He feels especially bad for older writers with big back catalogs, because he says they’re often the most impacted by losing ebook licensing deals.