Internet Archive's National Emergency Library: Public Service or Copyright Infringement?

In the wake of the COVID-19 pandemic, libraries all over the country have closed to help prevent spread of the disease. In response, the Internet Archive (“IA”) introduced a “National Emergency Library” containing electronic copies of over 1 million titles. Users can access and search the library, and “check out” books for 14 days. The borrowing process is known as “controlled digital lending,” and according to the IA, users no longer have access to the titles once their borrowing time expires, similar to checking a book back in at a physical library.

The National Emergency Library contains the same titles found in the already-existing “Open Library” created by IA in 2006. The primary difference between the two is that the IA has suspended waitlists to electronically borrow books from the National Emergency Library, meaning now multiple users can access the digital copies simultaneously, instead of the books being available to only one user at a time.

Since the introduction of the Open Library, some have argued that the IA’s particular type of controlled digital lending is an unauthorized use of a copyright-protected work that should require an express license from the copyright owner. The IA’s response has been to assert that the lending of books electronically qualifies as “fair use,” the doctrine that allows for certain uses of a copyrighted work to not be considered infringing. The issue whether digitizing books without an express license is a fair use has been addressed several times by multiple federal courts, including the Second and Eleventh Circuit Courts of Appeal. But there is no clear answer whether the IA’s latest multiple-user controlled digital lending practices – or indeed its prior practice lending to single-users – are protected as fair use.

Some are now asserting that the modified lending practices of the National Emergency Library improperly broadens a practice that already constituted copyright infringement. The outcome of this debate has broad implications for the future of copyright law in the new socially-distanced world.

What Copyright Owners Can Do:

Before the National Emergency Library was launched, the IA had in place a process for requesting removal of copyright-protected content from the Open Library: the copyright owner would submit a notice to IA that conformed with the IA’s copyright policy, and the IA would evaluate the request and take action under its own discretion. Now, the IA appears to have relaxed the formatting requirements and is asking that copyright owners who wish to opt out of its library should “send an email to info@archive.org with ‘National Emergency Library Removal Request’ as the subject line” and include the URL for the title(s) the owner would like removed.

It is unclear whether this new relaxed requirement applies only to the National Emergency Library. Copyright owners who wish to permanently remove their titles from the IA’s Open Library should follow the steps in IA’s copyright policy out of an abundance of caution.