Canadian academic, author and social activist Naomi Klein and Cory Doctorow are among more than 300 authors, academics and technologists who are challenging an ongoing lawsuit brought against the Internet Archive (IA) by a group of powerful publishers.
In an open letter issued last week, the authors defended the Internet Archive and the irreplaceable role of libraries, librarians, education and authors in society in the digital age.
“Libraries are a fundamental collective good,” reads the authors’ letter. “We, the undersigned authors, are disheartened by the recent attacks against libraries being made in our name by trade associations such as the Association of American Publishers and the Publishers Association: undermining the traditional rights of libraries to own and preserve books, intimidating libraries with lawsuits, and smearing librarians.”
The letter was coordinated and first published by Fight for the Future, a Boston, Massachusetts-based public interest group.
In their lawsuit, filed in June 2020, HarperCollins Publishers, Penguin Random House, Hachette Book Group, and John Wiley & Sons accused the Internet Archive of engaging in “mass copyright infringement” and “willful digital piracy on an industrial scale.” Calling themselves “four of the world’s preeminent publishing houses,” the publishers claimed:
Without any license or any payment to authors or publishers, IA scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites. With just a few clicks, any Internet-connected user can download complete digital copies of in-copyright books from Defendant.
The San Francisco-based Electronic Frontier Foundation (EFF), a leading nonprofit defending civil liberties in the digital world and Durie Tangri LLP are defending the Internet Archive against the lawsuit.
The authors’ letter calls for an end to “smear campaigns against librarians” and “lawsuits aimed at intimidating libraries and diminishing their role in society.”
“We fear a future where libraries are reduced to a sort of Netflix or Spotify for books, from which publishers demand exorbitant licensing fees in perpetuity while unaccountable vendors force the spread of disinformation and hate for profit,” reads the letter. “Publishers must balance profits for the most prominent authors and shareholders with the right of the public to free, unsurveilled access to knowledge and information—as well as the right of emerging authors to be collected, preserved, and discovered.”
The letter also urged “all publishers, distributors, and trade associations” to “enshrine the right of libraries to permanently own and preserve books, and to purchase these permanent copies on reasonable terms, regardless of format.”
The Internet Archive
Based in San Francisco, California, the Internet Archive is a 501(c)(3) “non-profit that was founded to build an Internet library” by Brewster Kahle, an MIT graduate, computer scientist and entrepreneur, in April 1996. Then Kahle, the Internet Archive’s current digital librarian, “dreamed of building a ‘Library of Everything’ for the digital age,” says a webpage dedicated to celebrating the Internet Archive’s 25th anniversary. “A library containing all the published works of humankind, free to the public, built to last the ages. He named this digital library the Internet Archive. Its mission: to provide everyone with “Universal Access to All Knowledge.’”
“As a young man, I wanted to help make a new medium that would be a step forward from Gutenberg’s invention hundreds of years before,” wrote Kahle in 2021, reflecting on the Internet Archive’s 25 years in existence. Kahle added:
By building a Library of Everything in the digital age, I thought the opportunity was not just to make it available to everybody in the world, but to make it better–smarter than paper. By using computers, we could make the Library not just searchable, but organizable; make it so that you could navigate your way through millions, and maybe eventually billions of web pages.
A July 28, 2020, preliminary statement filed by EFF and co-counsel Durie Tangri in response to the publishers’ lawsuit described the Internet Archive as “a nonprofit library that has had one guiding mission for almost 25 years: to provide universal access to all knowledge. It is a Library of Alexandria for the twenty-first century that, thanks to digital technologies and the Internet, excels in a way the Library of Alexandria never could. Through the Internet Archive, people who do not live in world capitals can access the same cultural and informational resources as those who do.”
The Internet Archive currently “makes more than 3.6 million books available for digital lending, and millions more public-domain books available for permanent download,” according to the nonprofit’s recent filing with a U.S. district court.
The article, “The Internet Archive has been fighting for 25 years to keep what’s on the web from disappearing – and you can help,” written by three librarians/archivists from the University of Dayton, Ohio, and published in The Conversation in August 2021, is instructive. According to the authors, Kayla Harris, a librarian/archivist, Christina Beis, a Director of Collections Strategies & Services and Associate Professor, and Stephanie Shreffler, a Collections Librarian/Archivist and Associate Professor, “portions of the internet are constantly disappearing” all the time. While librarians and archivists “strengthen collective memory by preserving materials that document the cultural heritage of society, including on the web,” you too can play an important role and help them “save the internet” as a citizen archivist.
The publishers’ complaint
In their June 2020 complaint, the publishers took issue with the fact that the Internet Archive “currently distributes digital scanned copies of over 1.3 million books,” and that the non-profit’s “stated goal is to do so for millions more, essentially distributing free digital copies of every book ever written.”
The publishers initiated their suit against the Internet Archive’s “National Emergency Library” initiative, launched in March 2020 in response to the global COVID-19 pandemic’s unprecedented disruptions to the educational system in the U.S. and around the world. The Internet Archive announced the suspension of its waitlists for the 1.4 million books in its lending library by creating the “National Emergency Library”.
“To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later,” wrote the Internet Archive in a blog post. The post added:
During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe.
According to the blog post, the National Emergency Library was “a response to the scores of inquiries from educators about the capacity of our lending system and the scale needed to meet classroom demands because of the closures” and the Library Archive’s realization that “our lending library wasn’t going to scale to meet the needs of a global community of displaced learners. To make a real difference for the nation and the world, we would have to take a bigger step.”
Kahle, the Internet Archive’s founder, was quoted in the blog post as saying:
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.
More than 100 prominent education institutions, libraries and archives, including George Washington University, California Academy of Sciences Library, Chief Officers of State Library Agencies, City University of New York Libraries, MIT, Penn State University Press, The MIT Press, Brooklyn Public Library, Wikimedia Italia, Robert Schalkenbach Foundation and the Boston Public Library, signed a statement supporting the Internet Archive’s National Emergency Library initiative. The statement reads:
I support the Internet Archive and its mission to provide “Universal Access to All Knowledge”. During this time of school and library closure at global scale, and a US national emergency, I support the Internet Archive’s use of Fair Use to eliminate waitlists for the books it lends to users through the latter of June 30, 2020, or the end of the US national emergency. The Internet Archive will use existing digital rights management controls to restrict the unlawful redistribution of these books.
These actions will support emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries are closed.
The Internet Archive made the list of individual endorsers private after receiving reports of “threats of violence and intimidation targeting endorsers,” according to an April 23, 2020, update to the statement.
The lawsuit forced the Internet Archive to close the National Emergency Library on June 16, 2020. Still, the publishers pursued their lawsuit.
The publishers suit ultimately seeks to nuke the Archive’s Controlled Digital Lending (CDL)” program, described by IA as “the library practice whereby a library owns a book, digitizes it, and loans either the physical book or the digital copy to one user at a time”. The Archive’s “Open Libraries” project empowers libraries to lend digital books to their patrons using the CDL program. As per the IA, libraries that are part of the Open Libraries project “can identify the overlap in their physical holdings with our digital holdings and provide free digital books to patrons where there are matches. Additionally, libraries can add their holdings into Open Libraries to increase lending counts.”
The publishers have a different take on the Internet Archive’s Open Libraries project.
“Despite the ‘Open Library’ moniker, IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale,” states their June 2020 complaint. “Consistent with the deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.”
More than 80 leading public, academic, and special libraries across the U.S. and Canada, including MIT Libraries, Denver Public Library, Washington Research Library Consortium, Princeton Theological Seminary Library, the Philadelphia Museum of Art, University of Alberta Wiedrick Collection, Georgetown University Law Library, and Boston Public Library, use the Internet Archive’s Open Libraries project.
“This lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world,” wrote Kahle in a blog post. “This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.”
Naomi Klein is an award-winning Canadian author, journalist, essayist, filmmaker, prize-winning social activist, and academic. She was named the inaugural Gloria Steinem endowed chair of media, culture and feminist studies at Rutgers University in 2018. She joined the University of British Columbia as Professor of Climate Justice and co-director of the Centre for Climate Justice in September 2021.
Klein is the author of numerous international bestselling books, including No Logo (1999), The Shock Doctrine (2007), and This Changes Everything: Capitalism vs. the Climate (2014), a winner of the Hilary Weston Writers’ Trust Prize for Nonfiction.
Klein was awarded the 2016 Sydney Peace Prize “for exposing the structural causes and responsibility for the climate crisis, for inspiring us to stand up locally, nationally and internationally to demand a new agenda for sharing the planet that respects human rights and equality, and for reminding us of the power of authentic democracy to achieve transformative change and justice.” She joined prominent previous winners of the $50,000 prize, such as the late South African anti-apartheid icon Archbishop Desmond Tutu, Professor Noam Chomsky, and Arundhati Roy, author of The God of Small Things.
Cory Doctorow is a journalist, activist, science fiction writer and author of books such as Attack Surface and Radicalized. He and Rebecca Giblin, a professor at Melbourne Law School, director of the Intellectual Property Research Institute of Australia, and co-signer of the authors’ letter, co-authored the new book, “Chokepoint Capitalism: How Big Tech and Big Content Captured Creative Labor Markets and How We’ll Win Them Back.”
Other authors, academics, technologists and social activists who signed the authors’ letter include Neil Gaiman, Douglas Rushkoff, Baratunde Thurston, Chuck Wendig, Lilly Wachowski, Daniel Ellsberg, Harsha Walia, Stephen D. Crocker, Alyssa Milano, Ayesha Muzaffar, and Medea Benjamin.
“Libraries are the guardians and the bulwark of cultural diversity and inclusion, particularly for those who don’t have the means to access culture by other pathways,” said author-signatory Marianne Díaz Hernández. “They are the place where people, particularly children, can access books and other materials about the topics that concern them, embarrass them, or that they don’t feel that they can talk with anyone else. The status of libraries as a place free of censorship and surveillance, to seek knowledge we need and stories that reflect us, is one of the keystones of a free, open, and democratic society, and every inch that we lose in this battle contributes to the disintegration of civic space.”
In March 2020, Chuck Wendig criticized the Internet Archive’s temporary National Emergency Library. He has since joined other authors defending the nonprofit.
“I am not involved in the publisher lawsuit against the Internet Archive,” wrote Wendig in July. “I do have books published by three of those publishers, but I have never consulted with them on this, they are not taking orders from me, they have (as corporate entities) very little regard for me and do not listen to me at all. And I know they don’t because if they did, my fellow authors would be paid better, I would be paid better, people who work inside publishing would be paid better, and the publishers would provide better rates to libraries when it came to e-book licensing/lending fees. Turns out, they don’t heed my requests. I am a fan of libraries and librarians. They do wonders for this world. I used to work for the public library here in Bucks County for a number of years.”
Lia Holland, Fight for the Future’s campaigns and communications director of digital rights, said:
For far too long, authors have been caught in an impossible bind: the publishers and trade associations they rely on for their livelihoods are acting against the interests of literally everyone but the most wealthy authors. Major publishers are reaping historic profits from underpaying, underpromoting, and undersupporting most authors, then double-dipping on their own abusive practices by standing up struggling authors as the reason publishers need even more power and control. Until now, authors have often been silent in their role as human shields to defend terrible behavior from industry titans and their armies of lawyers and lobbyists. This has to end, and authors taking back their voices for the sake of the libraries that have always championed authors, access, and diversity is the first step.
Folks at Fight for the Future think the Internet Archive is “a fantastic and essential institution.” So do I.
“The suit’s scope reaches to the core of the right to own digital books,” stated Fight for the Future in its statement announcing the authors’ protest letter. “If publishers prevail, they will effectively terminate the rights of all libraries across the US to own, preserve, and loan digital books by “blocking” a practice called controlled digital lending—locking in licensing models with grave implications for readers’ safety.”
Fair use and the case for dismissal
In September, the Internet Archive asked the U.S. District Court for the Southern District of New York to end the publishers’ lawsuit.
The publishers’ motion for summary judgment “is thick with accusation and rhetoric, but thin on actual evidence,” states the Internet Archive’s filing. “That may be because the Internet Archive’s CDL program seeks to do something major publishers can’t imagine: Without seeking payment or profit, improve the value of physical books for libraries and their patrons and, in the process, help ensure that libraries can continue to serve their mission in the 21st century.”
The filing also argues that the publishers “offer no evidence that either the Internet Archive or its digital lending program is a revenue-generating exercise. The Internet Archive is a not-for-profit organization that lends books, for free, to patrons, for a limited time, at its own expense. Those expenses include equipment, personnel, and, especially, acquisition and storage costs for the physical books that are being lent digitally; the Internet Archive has spent millions of dollars on its digital lending program.”
The Internet Archive’s filing states that “the Internet Archive does not apologize for temporarily filling a desperate public need for books when libraries and schools shut their doors” due to the coronavirus, through its National Emergency Library, which “was also fair use”. Contrary to the publishers’ assertions, “the NEL does not undermine the fair use analysis; if anything, it strengthens it,” states the filing.
Writing in The New Yorker, Jill Lepore, an author and professor of history at Harvard, called the National Emergency Library “a gift to readers everywhere.” Lepore wrote:
Lapore further explained how books have in recent history been collected, distributed and given away for free, creating nations of readers out soldiers and ordinary people.
Is this legal? All this falls under fair use, at least for the duration, is the thinking here. As the copyright lawyer Kyle Courtney has pointed out, libraries have copyright superpowers that they can use in an emergency like this one. Other collections should follow Kahle’s lead. Factiva, JSTOR: unlock the gates.
“The publishers appear to want to shut down not just the National Emergency Library, but all of the Internet Archive’s book-lending practices,” wrote Joanne Gray, Lecturer in Digital Cultures at The University of Sydney, University of Sydney, Australia, and Cheryl Foong, Senior Lecturer in Law, Curtin University, Australia, in The Conversation, in July. “The flexibility of fair use is one thing the Internet Archive has on its side, however. There is room for the court to assess the public benefit of the Internet Archive’s lending practices which, as the National Emergency Library exemplifies, are undeniably strong. Assessing whether the public interest arguments are strong enough to overcome the weight of the market harm may be key to deciding who wins this case.”
The authors’ open letter
Via Fight for the Future’s “Authors For Libraries” project, below is the full text of the authors’ joint letter challenging publishers’ lawsuit against the Internet Archive:
Libraries are a fundamental collective good. We, the undersigned authors, are disheartened by the recent attacks against libraries being made in our name by trade associations such as the Association of American Publishers and the Publishers Association: undermining the traditional rights of libraries to own and preserve books, intimidating libraries with lawsuits, and smearing librarians.
We urge all who are engaged in the work of getting books into the hands of readers to act in the interests of all authors, including the long-marginalized, midlist, and emerging authors whom librarians have championed for decades. We write to ask that all publishers, distributors, and trade associations:
Enshrine the right of libraries to permanently own and preserve books, and to purchase these permanent copies on reasonable terms, regardless of format. Many libraries would prefer to own and preserve digital editions, as they have always done with print books, but these days publishers rarely offer them the option. Instead, when libraries have access to ebooks at all, the prices libraries pay to rent ebooks are often likened to extortion.
Digital editions are more affordable to produce and often more accessible, but libraries are already relying on emergency funds and may only be able to license a small selection of mainstream works in the future. In turn, readers will have fewer opportunities to discover the more diverse potential bestsellers of tomorrow.
It is past time to determine a path forward that is fair to both libraries and authors—including a perpetual model for digital ownership based on the cost to maintain a print edition.
End lawsuits aimed at intimidating libraries and diminishing their role in society. The interests of libraries are the interests of the public, and of any author concerned with equity and longevity for themselves and their fellow writers. We are all on the same side. Yet a unanimously passed Maryland state law ensuring libraries pay “reasonable fees” for digital editions died after the AAP sued. And after a previous suit failed, several publishers are currently suing the Internet Archive Library in an attempt to prohibit all libraries from lending out scanned copies of books they own. While undermining libraries may financially benefit the wealthiest and most privileged authors and corporations in the short term, this behavior is utterly opposed to the interests of authors as a whole.
End smear campaigns against librarians. Recent comments likening library advocates to “mouthpieces” for Big Tech are as tasteless as they are inaccurate. Also concerning are the awards recently given to legislators who have advocated in favor of the dangerous surveillance of library patrons, and of laws that criminalize librarians. As a last bastion of truth, privacy, and access to diverse voices, libraries’ digital operations grow ever more essential to our society—and their work should be celebrated, not censured.
We fear a future where libraries are reduced to a sort of Netflix or Spotify for books, from which publishers demand exorbitant licensing fees in perpetuity while unaccountable vendors force the spread of disinformation and hate for profit. Publishers must balance profits for the most prominent authors and shareholders with the right of the public to free, unsurveilled access to knowledge and information—as well as the right of emerging authors to be collected, preserved, and discovered.
The full list of signatories is available at Fight for the Future’s “Authors For Libraries” project.
The Internet Archive has been fighting for 25 years to keep what’s on the web from disappearing – and you can help
Kayla Harris, Christina Beis and Stephanie Shreffler. The Conversation, August 2021
Publishers vs the Internet Archive: why the world’s biggest online library is in court over digital book lending
Joanne Gray and Cheryl Foong. The Conversation, July 2022