On June 10, 2020, Internet Archive announced in a blog post that it’s going to end its “National Emergency Library” e-lending program on June 16, rather than its previously announced end date of June 30. Through the National Emergency Library program, Internet Archive made digital versions of millions of books still in copyright freely available online without permission and without restriction. It moved up the ending date in response to a copyright infringement lawsuit brought by four publishers, a lawsuit that the Authors Guild fully supports.
While the elimination of the National Emergency Library is a necessary and desirable development, Internet Archive still plans to continue e-lending books through its Open Library program relying on a theory called “controlled digital lending,” whereby it would be fair use for anyone who owns a print copy of a book, acquired from any source, to digitize the book, display it, and distribute full-text copies of the copyrighted material to the entire world without authorization. As we have previously described, the law does not support this theory. Unlike a real library, Internet Archive’s Open Library does not buy or license ebooks; it solicits donations of used books and scans them wholesale, then posts them on the Open Library website for anyone to read or download allegedly for a period of 15 days (though they make it quite easy to circumvent the 15-day limit). The practice robs authors of royalties they would be paid from a licensed use of their in-print books, as well as from deciding how and when their books should be digitized. It also usurps the market for bringing their out-of-print books back into commerce. Authors who have recovered the rights to their out-of-print books from the publishers may be deprived of the ability to self-publish—and profit from—their own digital versions if Internet Archive has already done so.
We hope that Internet Archive will decide to cease its Open Library operations entirely or to conduct them in a legal manner by obtaining authorization from publishers and authors. Meanwhile, we are closely monitoring the lawsuit and look forward to a court decision that puts an end to the use of controlled digital lending for books where the rightsholder can be located through a reasonably diligent search