Kahle & the Internet Archive Double Down on a Form of Voluntarism that Requires No Sacrifice on their Part
by Neil Turkewitz
A few weeks ago — weeks that seem like years, Brewster Kahle and the folks at the Internet Archive decided to take it upon themselves to fill what they saw as a void in the operation of public libraries as a result of COVID-19, and relaxed the rules of their already controversial “library” through which they distributed books without the permission of the authors or publishers thereof. Put aside for a moment the fact that in so doing, they were seeking to fulfill a long-held ambition to make information free to the world — an ambition recited in Kahle’s original post on the subject. As such, it wasn’t really a response to COVID-19, it was a response to the opportunity afforded by the pandemic and their calculated guess that it was an opportune moment in which affected authors would be unlikely to object. Of course, these calculations were wrong. A millionaire deciding to give away access to the books of struggling authors is never going to sit well with the author community, nor with public officials charged with ensuring that authors have the means to continue to survive from their craft so that our cultural output is not frozen in time.
The reaction to Kahle’s giveaway was swift and clear — including from Senator Tillis, the Chairman of the Subcommittee on Intellectual Property of the Senate Judiciary Committee, who expressed his concerns that the Internet Archive was “unilaterally” creating an “emergency copyright act,” and that the library may be “operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.”
Turns out, Kahle and the Internet Archive didn’t like being called out for their actions, and have now responded to Tillis in a letter that: (1) should be read by all in its entirety; and (2) reveals an astonishing dismissiveness about the impact on authors. Kahle essentially says: “We’re the good guys. Libraries and educators appreciate what we’ve done. And, according to lawyers that we pay, we believe there’s a strong case to be made that our permissionless use of copyright-protected books is technically covered by principles of fair use. And in our defense, we offer statistics that show that most people spend only 30 minutes on any book. You know…”patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.”
And after all, who could have a problem with fact-checking, research, or browsing? Indeed, none of these activities implicate copyright. But of course, this is intentionally misleading. What the Internet Archive is doing is distributing copies of copyright-protected works in their entirety. The Internet Archive wants you to think that this is akin to the fact pattern of Google Books involving excerpts when the reality is that it largely replicates the fact pattern considered in ReDigi in which the Court had little trouble discarding the platform’s fair use defense with respect to distribution of entire works.
As I wrote earlier, the thing that troubles me most about the Emergency Library is the underlying sense by Brewster Kahle and his colleagues that their perceived righteousness of purpose gives them moral authority to determine the conditions of other people’s lives. I don’t doubt that Kahle thinks he is doing something wonderful. Cool, we need more people trying to improve the world. He could have spent his money to license works and make them available to the public. He could have built an infrastructure that would allow authors to easily share their works with the public for free with appropriate safeguards. But that’s not what he did. He built and populated a distribution center which he conveniently calls a “library,” and gave away access to works for which he had no rights. Put aside questions of law — -it’s just wrong. He takes the people most impacted by decisions about distribution of their works out of the equation. This isn’t justice — it’s ideology masquerading as charity. And it stinks.
In his response to Senator Tillis, Kahle is at his most insulting and patronizing:
“We also understand that authors are being impacted by this global pandemic, and we have been engaging in a dialog with authors around the National Emergency Library. Some have expressed concern about recently published books or books that are being released this year. As noted above, such books are not part of the National Emergency Library. Moreover, when we launched the National Emergency Library we urged people in a position to buy books to do so. We were also clear that any author who did not want a book in the Library need only to send us an email and we have responded to them quickly. This is contrary to the process claimed by the Authors Guild, which asserts that authors must send us a formal DMCA notice.
We have also had authors contact us directly to have their book included in the National Emergency Library because they want their work to be part of this equitable approach to lending while libraries are closed…
We recognize that in our haste to respond to the urgent needs of teachers, students, and librarians, we did not do enough to engage with the broader information ecosystem, like authors, publishers and policymakers.”
In his telling, authors — the very people whose imagination found expression in books that excite, inform and educate are mere afterthoughts. As he calls them a part of the “broader ecosystem.” What Kahle refuses to acknowledge is that it is the Internet Archive that sits as part of the broader ecosystem. Authors aren’t part of the broader ecosystem. They are, in this paradigm, Mother Nature. The Creator. That which is necessary and foundational for everything else to happen. Or, in Kahle’s view, the minor actors who just need to be consulted after the fact. Is that justice?