Internet Archives & the Emergency Library: How to Love Books & Hate Authors Without Really Trying
By Neil Turkewitz
In what seems like forever ago (but was actually March 24), Brewster Kahle and the Internet Archive announced a “National Emergency Library to Provide Digitized Books to Students and the Public.”
Under the terms of this Emergency Library, the Internet Archive announced that it would suspend its customary, and already controversial, conditions for what it calls “controlled digital lending” to expand the reach of its library. For anyone unfamiliar with the Archive, please bear in mind that its library consists of digitally scanned copies of books made without the permission of the authors of said books. While that is quite useful and salutary with respect to out-of-copyright materials, it is of course quite a different matter for the Archive to take it upon itself to determine the conditions of voluntarism for already struggling authors, and indeed the Archive and the literary community were already at odds with respect to the pre-emergency operations of the the Archive.
But Kahle and the Internet Archive, sensing an opportunity for enhanced leverage in a moment of crisis, decided to double down on their model — assuming that authors would be reluctant to object to unauthorized distribution — deemed “lending” by the Archive, much like Napster called its activities “sharing.” Kahle proudly proclaimed “The library system, because of our national emergency, is coming to aid those that are forced to learn at home…This was our dream for the original Internet coming to life: the Library at everyone’s fingertips.”
This is quite revelatory — fully exposing the opportunism at the heart of the roll-out of the “emergency library.” In case anyone had any doubts, his words confirm that this was not a response to an emergency, but the fulfillment of a life-long ambition to free information from the constraints of copyright. The achievement of “our dream of the original internet.” And of course, the use of the ambiguous and indeterminate “our dream” intentionally obscures the identity of the dreamer. It is designed to reflect a universality that doesn’t exist, and certainly doesn’t include authors and other cultural workers producing the “information” to which universal access is “the dream.” Even this is too generous an interpretation of the announcement, for not only does Kahle proffer that information should be free (in the sense of available to all), but that it should be free (in the sense of without cost). He does this in part by sleight of hand by referring to “the library at everyone’s fingertips” rather than “information at everyone’s fingertips.”
Libraries are not, you may observe, the only way that information is made available to the public. Indeed, most creators don’t spend their lives devoted to a craft in order to keep their productions to themselves. Copyright, while it may protect unpublished works, is principally a modality for sustaining creators as they make their works available to the public. Providing public access is the very backbone of the copyright system. And while it should be unnecessary at this stage, I must also observe that copyright doesn’t inhibit the free (in all respects) distribution of “information,” and only addresses the original expression of ideas, immediately divesting the author of any proprietary interest in any ideas or information contained in her work.
As part of their original announcement, the Internet Archive touted that: “Public support for this emergency measure has come from over 100 individuals, libraries and universities across the world, including the Massachusetts Institute of Technology (MIT).” They simultaneously observe that: “We hope that authors will support our effort to ensure temporary access to their work in this time of crisis. We are empowering authors to explicitly opt in and donate books to the National Emergency Library if we don’t have a copy. We are also making it easy for authors to contact us to take a book out of the library.” Okay, so let’s explore that for a second. Prior to launching this project, the Internet Archive reached out and got the support of a large number of institutions and individuals who are not authors, yet magically failed to reach out to the community of workers most directly affected by the Archive’s generosity in sharing its collection of unauthorized copies? Instead, they express their “hope” that authors will support it, and provide a mechanism for opting-out? That’s not only not how the law works, but it is irredeemably dishonest, presumptuous and wholly ignores the reality of the existence of most authors.
As the Authors Guild noted in their immediate response to the announcement of the Emergency Library: “With mean writing incomes of only $20,300 a year prior to the crisis, authors, like others, are now struggling all the more — from cancelled book tours and loss of freelance work, income supplementing jobs, and speaking engagements…The Internet Archive is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign…Acting as a piracy site — of which there already are too many — the Internet Archive tramples on authors’ rights by giving away their books to the world.”
There has been a fair amount of public discussion concerning the legality of the Archive’s Emergency Library — the extent to which it is, or is not, consistent with Section 108 of the Copyright Law, or with the provisions of fair use. While to me it is quite apparent that the Internet Archive is violating the law, I think it is more important to examine this in terms of morality rather than legal technicalities. I actually don’t care whether it violates the copyright law — I care that it denies authors the means to survive from their craft and intentionally erodes the basis of their sustenance. Like other self-perceived digital activists before him (and hopefully fewer after), Kahle elevates access over creation, assuming that cultural artifacts worth accessing will continue to be produced even in the absence of economic incentives to sustain cultural workers. In this way, and again not in any innovative sense, he denigrates the difficulty and complexity of original authorship. In his world, we would have universal access…but to what? By taking authors out of the equation, Kahle tries to pretend this is about books. But books, while they may have spines, do not possess hearts. They don’t need to eat. They don’t have families to feed, and bills to pay. And giving things away that weren’t yours to begin with isn’t an act of generosity — no matter how many technicalities one asserts in defense thereof.
And that, to me, is the issue that deserves our attention. Kahle, like too many others before him, asserts a technicality to defend a use that bypasses the creator. Similar to others who have argued that they weren’t the ones hosting the content, or that their servers were located in another jurisdiction, or that content was stored at the direction of the user, or that a series of communications to individual members of the public was somehow not a communication to the public. Looking to elude a discussion of morality through some technical aspect of the law. But the law, while it tells us what we can or cannot do, does not shed light on what we should do.
The irony presented by the Internet Archive’s announcement of the Emergency Library is that it’s not at all clear to me that the great majority of publishers and authors wouldn’t have granted permission had they been asked. I can assure you that authors and publishers love books — and want to promote reading (which requires access to books) as much as the folks over at the Internet Archive. That they are well aware of the emergency conditions and the role that books and other cultural materials can and do play in society. Indeed, the actions of the Internet Archive ignore the outpouring of support from the academic and literary community, some of which are detailed in this post from the Association of American Publishers (AAP), and this from Copyright Clearance Center (CCC).
Sadly, we will never know how authors and publishers would have responded to overtures from the Internet Archive since Kahle decided to take that decision out of their hands, and instead chose the standard Silicon Valley approach of asking for forgiveness instead of permission. Because our humanity and the demands of progress and innovation apparently require us to forego individual decision-making. After all, free will is just a technicality, right?
