The Literary Civil War of the Internet Archive

A lesson i learned early in life: never piss off a librarian. Apparently, the court’s judge, John G. Koetl, skipped over a formative traumatic experience, as his recent ruling against the Internet Archive, a beloved digital library nonprofit, has shaken the community of librarian archivists.

Some brief background: During the early days of Covid lockdowns, the Internet Archive launched a program called the National Emergency Library, or NEL. As library closures had taken millions and 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, in which the Internet Archive scans physical copies of library books and lets people view them digitally.

It was always meant to be temporary, but the NEL shut down early after some of the biggest publishers banded together to sue for copyright infringement. This week, Koetl sided with the publishers. He did not believe the Internet Archive’s argument that their digitization project fell under the Fair Use doctrine. Example line: “There is nothing transformative about IAs copying and unauthorized lending of the Works in Suit.” The Internet Archive intends to appeal.

In general, I support the work of the Internet Archive. (The Wayback Machine deserves all the credit 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 trial, some writers, such as Colson Whitehead, criticized the NEL for cutting author income. In addition, professional groups such as the US National Writers Union and the Authors Guild, among others, have hailed Koetl’s decision as a victory for creative types.

I wasn’t quite sure what to make of this whole fight. Of course, it seemed right to make it easier and cheaper for libraries to lend out ebooks. But taking money from writers clearly seemed bad. This fight, over the rather niche issue of ebook copyright, is running into larger, ongoing conversations about paying artists, what it means to own digital works, and the erosion of corporate prices.

I called a few people on both sides of the issue to find out more about their points of view – and ended up on the phone for hours, feeling before the whole world like a child listening to her beloved but divorcing parents bitterly complain to each other.

An 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 licenses. Some have a fixed term (for example, two years), while others have to be renewed based on the number of times they have been loaned (for example, every 26 times a book is borrowed). It can cost libraries exponentially more to keep an ebook in circulation than a hard copy. Understandably, many librarians find these terms exploitative. Academic librarian Caroline Ball, who lives in the UK, tells me she had a business book that would have cost £16,000 ($19,800) for a single year.

Ball sees the recent ruling as a disaster for library access as it sides with the publishers that control these onerous licensing deals. “It’s reprehensible,” she says.

Author and independent journalist Edward Hasbrouck, who volunteers with the National Writers Union, does not finds the statement objectionable. In fact, he is delighted. He says the judge made the right choice and that the San Francisco-based Internet Archive has a “typical Silicon Valley attitude of laws be damned.” Hasbrouck thinks it’s offensive to blame the ruling on poor ebook licensing deals. “The Internet Archive tried to force their own de facto licensing terms — free of charge — on us,” he says. He feels especially bad for older writers with large back catalogs, saying they are often the most affected by losing ebook licensing deals.