Ideas

The National Emergency Library and Its Discontents

How did a plan to "aid those that are forced to learn at home” with e-books manage to lose the moral high ground?
Collage of book covers and portrait of Colson Whitehead
Photo-Illustration: Sam Whitney; Getty Images

Storyline Online has always been a beautiful idea—short videos of brilliant actors reading children’s picture books, enhanced by modest visual and sound effects. In the age of pandemic, with families confined morning, noon, and night, it is a godsend. One video, of Someone Loves You, Mr. Hatch as brought to life by Hector Elizondo, particularly resonated in our house in these times. I’m no Elizondo, I thought, but why not add the story to our bedtime reading repertory?

Normally I would head to the branch library to get a copy. Not now, of course. And Mr. Hatch, which was first published in 1991, isn’t available as an ebook, either, cutting off another possibility within the library system. So I turned to the Internet Archive. I was working on a piece about the nonprofit’s decision to open its collection of 1.4 million scanned print books without restrictions during this crisis, and a quick search revealed that “Mr. Hatch” was available. That night I downloaded the PDF for my almost 6-year-old daughter, who is learning to read by herself.

Here was just the sort of thing the Internet Archive’s founder, Brewster Kahle, might have had in mind when he declared the opening of a “national emergency library.” The Archive, he’d promised, was “coming to aid those that are forced to learn at home.”

Not everyone would be so grateful. Colson Whitehead, for one, observed on Twitter that the Archive isn’t really a library at all. “They scan books illegally and put them online,” he wrote, and pointed to a digital copy of his autobiographical novel Sag Harbor that was “not one bought by a library they ‘have an arrangement with.’ It’s a scan of a not-for-sale advance copy for book reviewers.” Indeed, you can see the cover of Sag Harbor at the Archive, which contains a note from Whitehead to that effect.

Other well-known writers echoed Whitehead’s point—as did the Authors’ Guild, which declared that the Archive “has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author.”

Storyline Online, at least, has a relationship with publishers. According to its website, the special rights that it obtains “do NOT extend to any other organizations. You do not have the right to create your own videos from the books we use unless you negotiate your own permissions with the rights holders of those books.” The Internet Archive, on the other hand, does not negotiate with publishers at all.

Digital-focused information “liberators” such as Kahle have been at odds with artists and publishers for decades. In the late 1990s, Napster tantalized us with the prospect of a universal digital musical library at our fingertips—no permission sought or granted. Then the service was shuttered after losing a legal challenge to its way of operating. More recently, there has been litigation in federal courts touching on an issue raised by the Archive’s actions: whether an owner of a digital copy of a creative work can resell it without permission, the way one sells used books or records. In a victory for copyright owners, a federal appeals court ruled in 2018 that transmitting the file via the internet was tantamount to copying it, rather than shipping it, and thus infringed copyright.

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The arguments here are both legalistic and thorny, balancing the interests of those who produce creative works against the interests of the public, who might benefit from greater access to those works. Impose too many copyright-based restrictions and you stifle the cultural and political conversation. Impose too few and you hinder the creation of the works that are the basis of that conversation.

In recent years, corporations have successfully lobbied Congress to vastly extend the terms of copyright, to the end of preventing icons like Mickey Mouse or Batman from ever slipping into the public domain. (The year 2024, when Mickey is set to leave Disney’s control, beckons nevertheless.) That context often seemed to give the digital liberators the higher moral ground; they were encouraging new creative efforts as opposed to greedily protecting assets.

Then the tide began to turn. As tech upstarts grew into behemoths, the word digital came to represent a different set of corporations protecting their assets. YouTube started looking less like a repository for fresh creative works and more like another cable TV system.

The Internet Archive is based in San Francisco, but it is certainly no behemoth. Rather, it’s a throwback to the start of the millennium, when it was still easy to believe that digital tools could make the world a better place. Think of the miracle that is the Archive’s Wayback Machine, which stores copies of web pages so that we can still view work that has disappeared, either because the sites are defunct or because someone has made edits.

The Archive’s pitch, from the start, was to reinvent the library for the digital age. Physical books—including not-for-sale advance copies of titles such as Sag Harbor—arrive as donations, and then are scanned and made available for “checkout” one at a time. They have a due date too. This is “controlled digital lending,” a legally contested framework based on the idea that owning a book entails the right to loan it out.

Controlled digital lending takes advantage of some of the magical qualities of digitized books (the potential for their near-immediate delivery via the internet, for example) while swearing off others (the ease with which they can be copied and shared indiscriminately). Until, that is, the pandemic arrived. Having declared itself an emergency library, the Archive dropped the restrictions on how many copies of a book could be checked out at once or for how long. Any borrowed volume is now due June 30, or when the national emergency has ended, whichever comes later.

The thinking was clear: Traditional libraries have shut down, and emergencies don’t wait for copyright clearance. In announcing the change, Kahle couldn’t hide his pride at the groundwork his organization had laid—a strategic book reserve that he was releasing to the public. “This was our dream for the original internet coming to life,” he wrote, “the library at everyone’s fingertips.”

In a follow-up post on April 7, Kahle was more measured about the new library rules, almost apologetic. “We moved in ‘internet time’ and the speed and swiftness of our solution surprised some and caught others off guard,” he wrote, saying that the Archive would add staff members to help authors remove their books from the emergency library, as Whitehead has done. Of course, whether authors have to opt in or opt out is a central issue, and one that can’t be smoothed over with more staff members. If the Archive can’t, by default, treat its scan of your book as its own copy to loan, its collection will dwindle to almost nothing—a tiny assortment of works by authors who deliberately choose to distribute their work without compensation, out of a selfless desire to educate the world during a crisis.

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The fact that so many prominent authors have lashed out against this idea speaks to the precarious times we live in. The pandemic not only threatens the economy, but also shows the dangers of the gig economy promoted by Silicon Valley and others. The business model of many tech companies—whether it's Amazon, Facebook, Instacart, or Uber—is to control the digital means of assigning work and demand a cut from each transaction. We’ve seen what that means in practice: If your work for a ride-sharing service suddenly dries up, you won’t necessarily have an easy time qualifying for unemployment benefits.

The Archive’s abrupt decision to change the rules for downloading a book played into writers’ anxieties about these trends, said Suzanne Nossel, the chief executive of PEN America. "Writers have been hard hit by this crisis in a whole variety of ways—many of them are in the gig economy, earning money from teaching engagements, speaking engagements, other kinds of jobs in sectors that have been very hard hit by Covid," she added. "Books have been postponed, there are no book events, bookstores are closed all over the country. In the middle of that, for the Internet Archive to come along and say ‘Hey, we’re making all of this available for free as a public good, just completely overlooks how it is that these works came to be in the first place."

One could forgive Kahle and the Archive for feeling whipsawed by the sharp condemnations. The first reactions in the media were full of praise and gratitude. When reporting the news for The New Yorker, Jill Lepore, the Harvard professor and acclaimed author, approached the issues from the perspective of someone thirsty for knowledge: “The National Emergency Library Is a Gift to Readers Everywhere.” She encouraged those who could afford to buy books to do so, but focused on the pleasure of perusing the virtual stacks and finding hundreds of books on, say, moose; more broadly, her piece described access to books as being vital for maintaining our humanity throughout this crisis.

That expanded access might even help the publishers in the long run, Lepore suggested. During the World War II, she noted, publishers made the radical decision to sell books to the Army for six cents each in the form of cheap paperbacks instead of more expensive volumes, threatening their own business model. The move turned out to be brilliant for the culture and for publishing, in that it grew a reading audience that would be primed to spend on books when peace arrived.

It might not play out that way today, though. Seventy-five years ago, publishers were actually investing in their business, expanding a niche activity to a wide audience by producing more books. Now they’re vying against a different distribution system that is entrenched in our society and only getting stronger. As writers are pointing out loudly, that new distribution system has a very poor track record when it comes to compensating the people who keep it going.

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