So, the Internet Archive copyright lawsuit thing is more complicated than it appears. This is a good rundown of the legal questions involved, while this NPR piece describes the reaction to “National Emergency Library” that pushed things to the brink.
TL;DR, the IA provides crucial archiving services (including the Wayback Machine), but they’ve recently started a large-scale illegal lending model that put their other services at risk.This is really disappointing to me and I’m going to write a long, dry post about it.
Essentially, the Internet Archive has historically only allowed books to be “lent out” digitally to as many people as the IA has physical copies stored. So if they have 2 copies of Mary Sue’s new book, only 2 people can be reading their PDF scans at a time. This was enough for many publishers and authors to look the other way (although groups like the Science Fiction Writers of America has been decrying the practice for years, since in many cases they were “lending” books they didn’t have licensing for.)
Because, while this is
similarto the system used by libraries,
libraries
payfor each lending copy of their book (ensuring that the authors, artists, publicists, editors, etc are getting paid). the IA, from many accounts, did not pay for all of these books in the first place. but again, small-scale enough that nobody went after them for it.
Due to the pandemic, they removed the waiting list for these books, arguing it was in the national public interest to have access to knowledge. Great! I respect this ideology.
Except that rather than paying ~$0 for two digital copies w/o author permission, they’re now paying ~$0 for
unlimitedcopies w/o author permission. Writers who put years of labor into these books began kicking up a fuss (including Chuck Wendig, who’s receiving death threats because I guess he’s the most recognizable name involved?) and publishers sued.
So nobody’s goal is to get the Archive taken down entirely. Instead, the argument is that the damages claimed in the lawsuit could absolutely be large enough to cripple them. The IA ended the emergency lending program earlier than planned, so we’ll see if the suit goes through after all.
So, why is this complicated?
On the one hand, copyright law sucks right now and many are understandably infuriated at the idea of huge publishing companies suing a free library.
On the other hand, they
were not operating as a library,and creators were failing to be paid for their work. with the new lending model, Mary Sue Author (who, as an average author, receives wages below the poverty line) is worried that this change is actively preventing her from making a living. If she’s a new author, an impact to her numbers is enough to ensure that the publisher doesn’t buy her next book.
If Mary Sue is a marginalized author, she’s especially at risk of economic insecurity. If Mary Sue and authors like her cannot afford to write books, writing remains a domain of privilege.
(Also, there’s some legal argument that if Mary Sue fails to actively protect her copyright, she could lose it. I’m not an expert and won’t weigh in on this.)
But wait! (Common Counterarguments swirling on the Twitters):
“Writing should be a hobby anyway. If you care about making money for your art, you’re not a real artist.” Hopefully we are all familiar by now with how shit this argument is; we see it a lot around here flung at visual artists. Pay people for their work! Also, again: this is how you get a bunch of WASP authors and nobody else.
“It’s actually the publishers screwing the authors, so this is a punishment for the publishers.”Except it is…not. It is not. The people most likely to suffer would be the writers, not the publishers.
“Libraries are closed, so what are we supposed to do about it?”This one is tricky right now, but I’d first check to see if your library participates in an e-lending service (many do). check out OverDrive or Audible, which do pay authors. Project Gutenberg has free classics in the public domain. Amazon has its own problems, but Kindle Unlimited allows access to many,
manyfree books where the author is actually seeing payment.
“Okay, but why should the digital library of Alexandria go down because some authors are mad?”I honestly
reallywant to ask this question to whoever was making these lending decisions at the IA, because I also am very pissed about it. I don’t know why they thought publishers would ignore this very blatantly illegal thing (not even “grey area”–just under current copyright law, completely illegal). Regardless of whether copyright law currently sucks ass, it was a weird move! And now bad things are happening.
“
Fuck off, everybody mad about this writes YA and science fiction, not real literature. Who cares if those guys get paid?” Seriously. This is a very common rebuttal on Twitter right now. Burn Twitter.
“Honestly you’re right but I just want free shit.” is it weird that this is the response I most respect
In case you skimmed all that, my point isn’t “copyright law is good, actually.” It’s that the issue is more complex than donation drive posts have portrayed it as.
They only thing I would add to this very comprehensive account is that it’s not, actually, complicated.
IA were NEVER acting as a library. They were ALWAYS stealing. Libraries are awesome. NO ONE IS COMING AFTER LIBRARIES.
They weren’t acting as a library,
they were just stealing.
P.S. when I was dirt poor I never stole fucking books. Unlike Disney and behemoth visual production companies, publishing companies operate on tiny margins. Producing a book is a fuck of a lot of labour. On top of the author, who often spends literal years writing the book, you have the agent, the commissioning editor, proofreaders, copy editors, possibly structural and line editors, typesetters, cover artists, marketing bods AND MORE.
Most of these are highly skilled jobs that take years of training. When I was a freelance proofreader and copy editor, my standard rates were £27.50 and £33 an hour respectively.
Making books is EXPENSIVE. And readers have a low tolerance for paying for books, so there’s often not a lot of profit on any individual book. One book not selling well and covering that expense puts the author’s ability to publish future books in danger.
So you just DON’T FUCKING STEAL BOOKS.
When I was dirt poor, I read the many books that are now in the public domain. The Count of Monte Cristo is fucking fantastic - and I might never have read it had I not been too poor to read anything else.
It is EASY to continue to read without stealing from living authors.
Don’t be a dick.
So there are some pretty important factual errors in this post.
1. Libraries pay authors every time they lend books.
Not in the USA. They do in some other territories, but not directly; rather, governments create separate pots of money for authors that are administered by collecting societies to compensate them for library use.
But in the USA, libraries don’t - and never have, and almost certainly never, ever will - pay a lending right. This is 100% iron-clad fact and totally indisputable, and any argument that starts with an assertion to the contrary is either bad faith or wrong on the facts.
2. The Archive is not a library.
Of course the Archive is a library. “Library” is not the same as “public library.” There are thousands - probably tens of thousands - of private lending libraries, including those maintained by artists’ organizations. SFWA actually hosts an annual event in one of these libraries in NYC.
3. Digital lending is illegal.
This was comprehensively settled by the Hathi Trust decision.
Libraries are absolutely allowed to scan their holdings and lend them to to their patrons.
4. Libraries need licenses to lend books.
Again, this is 100% false as a matter of copyright law and practice.
Precisely ZERO of the books on the shelves of your local library were “licensed” to be lent. Libraries don’t require permission to lend books (and other materials) that they lawfully acquire. They never, ever have, and they almost certainly never will.
There are open questions about the legality of the National Emergency Library, though it’s important to note several facts about its holdings and usage:
*
Every book in the NEL is more than 5 years old. There are zero current releases.
*
The average NEL checkout is <30m - that is to say, people look up quotes or facts from these books, then check them back in - suggesting that the NEL is more like the refernece desk at your local library than its shelves.
*
The vast majority of the books in the NEL have NO ebook edition. You can’t check these books out on Overdrive. They are utterly unavailable for so long as libraries are closed.
*
The NEL’s ebooks are scanned pages, not OCR’ed text. They don’t readily substitute for Epubs or other “real” ebooks and are - and always will be - a distant second choice and reference of last resort for the people who use them.
Again, I’m here for a factual or legal or ethical argument about the NEL - but if we’re going to have that argument, let’s actually confine ourselves to the facts, not incorrect statements of law, or incorrect statements about the NEL’s holdings or usage.
