Events from this point on are fortunately a lot clearer. The Internet Archive would begin to regularly release statistics and updates on the NEL[1]. Some of the highlights here include the IA reaching out to educational institutions in hopes of seeking a compromise[2] and cooperation between the IA and the National Library of Aruba when the island nation too was hit with the outbreak[3].

Reconciliations and apologies aside, not everything was sunshine and rainbows. Despite the statements from the Author’s Guild and the Association of American Publishers bringing attention to the flaws of the NEL, the only repercussion taken on the IA’s part so far, was making the opt-out form for authors more visible, and later silently excluding books published within the last 5 years.

Dissatisfied, the AAP would persuade Senator Thom Tillis, Chairman of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, to issue a warning to IA’s founder, Brewster Kahle[4]. The exchange between the two [5] would later receive attention from a number of outlets, including Publisher’s Weekly[6].

As readers might recall from part 2, a lot of the news surrounding the NEL was transmitted through authors across social media. These remarks from figures the public holds upon a pedestal, led to fans stepping into the defense of their favorite authors, sometimes turning to extremes.

IA would end up hiding individual endorses from their public statement, starting April 23[7]:

Update: April 23, 2020 We have received threats of violence and intimidation targeting endorsers. For the safety and security of information professionals in our community, we are making the list of endorsers private.  To date we have had more than 200 individuals endorse, continuing daily. You can support the suspension of waitlists via the form at https://forms.gle/gTc2dA4b4cWwGWfZ8.

Another victim was author Chuck Wendig, who became the target of brigaded harassment for his harsh critique of the NEL, eventually leading him to protect his Twitter account[8].

The following months were relatively quiet, as interest in the NEL wained, with not too many mentions outside of the IA’s blog and social media accounts. This was the case until June 1, when publishers who were still unsatisfied with the NEL decided to file a complaint[9].

Plaintiffs Hachette, HarperCollins, Penguin Random House, and Wiley (collectively, “Plaintiffs” or “Publishers”) bring this copyright infringement action against IA in connection with website operations it markets to the public as “Open Library” and/or “National Emergency Library.” Plaintiffs are four of the world’s preeminent publishing houses. Collectively, they publish some of the most successful and leading authors in the world, investing in a wide range of fiction and nonfiction books for the benefit of readers everywhere. All of the Plaintiffs are member companies of the Association of American Publishers, the mission of which is to be the voice of American publishing on matters of law and public policy.

Defendant IA is engaged in willful mass copyright infringement. 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 downloadcomplete digital copies of in-copyright books from Defendant.

Excerpt from the lawsuit filed against the IA[9]

IA, who had taken note of the case against them[10], announced that they would be shutting down the NEL prematurely[11].

Within a few days of the announcement that libraries, schools and colleges across the nation would be closing due to the COVID-19 global pandemic, we launched the temporary National Emergency Library to provide books to support emergency remote teaching, research activities, independent scholarship, and intellectual stimulation during the closures. 

We have heard hundreds of stories from librarians, authors, parents, teachers, and students about how the NEL has filled an important gap during this crisis. 

Internet Archive Founder Brewster Kahle

Activists who’ve seen a possible existential threat to the IA in this lawsuit are now banding together to ensure the survival of IA’s public domain collections[12]. These containing everything from snapshots of Google in the 90’s[13], to footage from political ad campaigns[14], to episodes of long forgotten TV shows such as Death Valley days[15].

No matter how events play out from here on out, I think there’s more than a few lessons for all of us archivists out there. But the most important of these was getting to see how much damage miscommunication can cause.

Making the books they made available, the way that they made them available, the IA was obliged to at least see if the idea was welcome. It should not have been by solely checking if there was a clear need, by also by consulting the relevant parties. It didn’t help that their statements and clarifications were often buried under discussion and speculation thereof.

Sometimes you only get a few words to say, so instead of complaining you ought to make the most out of them…

Let’s build a digital system that works.

Internet Archive Founder Brewster Kahle, as he bids a farewell to the NEL[11].

Sources:

[1]http://blog.archive.org/tag/nel/
[2]http://blog.archive.org/2020/04/27/forging-a-cooperative-path-forward-university-presses-national-emergency-library/
[3]http://blog.archive.org/2020/05/18/when-an-island-shuts-down-aruba-the-national-emergency-library/
[4]https://publishers.org/news/senate-intellectual-property-chairman-addresses-internet-archives-national-emergency-library/
[5]https://twitter.com/textfiles/status/1249519103632695302
[6]https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/83027-internet-archive-responds-to-senator-s-concern-over-national-emergency-library.html
[7]https://docs.google.com/document/u/1/d/e/2PACX-1vQeYK7dKWH7Qqw9wLVnmEo1ZktykuULBq15j7L2gPCXSL3zem4WZO4JFyj-dS9yVK6BTnu7T1UAluOl/pub
[8]https://twitter.com/ChuckWendig, retrieved June, 17.
[9]https://assets.documentcloud.org/documents/6935704/4388-1.pdf
[10]https://blog.archive.org/2020/06/01/four-commercial-publishers-filed-a-complaint-about-the-internet-archives-lending-of-digitized-books/
[11]https://blog.archive.org/2020/06/10/temporary-national-emergency-library-to-close-2-weeks-early-returning-to-traditional-controlled-digital-lending/
[12]https://www.vice.com/en_us/article/5dzg8n/archiving-the-internet-archive-sued-by-publishers
[13]https://web.archive.org/web/19991012140308/http://google.com/
[14]https://archive.org/details/political_ads
[15]https://archive.org/details/cbak_000003

When we last left off, disease had run rampant across the US. A national emergency was declared; schools, workplaces and any and all public buildings were closing down rapidly. The stage was set!

On March 24, in response to the ongoing crisis, the Internet Archive officially launched their National Emergency Library initiative[1] in hopes of supporting displaced learners.

As described in part 1, the IA had already been loaning books for almost a decade at this point, and hosting books in the public domain for even longer. The one difference the NEL initiative brought was a major change in how these loans were given.

Normally, under the IA’s Open Library [2] project, books are first digitized into e-books either through the IA’s own collections or partner libraries.

This library brings together all the books from Phillips Academy Andover and Marygrove College, and much of Trent University’s collections, along with over a million other books donated from other libraries to readers worldwide that are locked out of their libraries.

Open Library Director Chris Freeland[1]

These books then become available for the borrowing of a single user, for 14 days. At the end of 14 days, the online or downloadable version of the loaned e-book will stop functioning. Furthermore users are limited in how many books they can borrow at a time, to deter them from borrowing books trigger-happy.

This means that each and every loanable book could only be lended to a single person at a time, much like a physical library. If all copies of the same book run out, then no one else can borrow a copy of said book, until one of the already borrowed copies is returned. People who would like to reserve a book, could then join a waitlist, to have a priority in receiving the book once it has been returned.

What the NEL initiative changed in this formula, was to introduce a temporary suspension to waitlists. Throughout the duration of the NEL, users would be allowed to receive their books immediately without having to sit through the waitlist. Ergo, multiple people could now share the same copy of the same book, no longer hindered by the IA’s limited inventory.

Then what was the justification for such a dramatic change? Fair Use. Readers might recall a certain public statement we’d mentioned in part 1, namely the Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research[3]. Authored unanimously by copyright specialists and librarians from higher education institutions across the US and Canada, the address serves as a means to raise public awareness regarding how remote teaching can steer clear of violating copyright:

… One critical feature of copyright law is fair use, a flexible users’ right that allows the use of copyrighted works without permission. It accommodates a wide variety of circumstances, including new and rapidly evolving situations. In the words of one of our colleagues, April Hathcock, “fair use is made for just these kinds of contingencies.”

To analyze whether a particular use is fair, courts balance four factors.

Of these four factors, the first and fourth are the most relevant:

The “heart of the fair use inquiry” lies in the first factor – the purpose and character of the use. Courts favor uses where the purpose is to benefit the public, even when that benefit is not “direct or tangible.”…

…The benefit to the public in providing remote coursework is obvious when it enables teaching to continue in the face of social distancing measures or quarantine, or when access to physical library materials is impossible. The public benefit of these measures is without a doubt of at least equal importance as in these cases.

In the light of this factor, IA has been able to claim that they are able to do precisely just that, providing access to library materials, via their own collections or those from partner libraries, despite these means otherwise being physically inaccessible.

The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” This factor “requires a balancing of the benefit the public will derive if the use is permitted” versus “the personal gain the copyright owner will receive if the use is denied.” While in normal circumstances there may be licensing markets for some items, the spontaneity of a move to remote teaching under emergency circumstances reduces the importance of this factor. Checking for and relying on licensed alternatives bolsters the case for fair use under the fourth factor, but lack of time to check for licenses should not be a barrier to meeting the needs of our communities.

And in light of this factor, IA chose to act early, when some publishers were still working to set up their own alternative distribution methods. That being said, within the NEL announcement they do acknowledge the situation of the rights-holders, and implore readers who have the means to purchase the books or e-books instead. Additionally, they do give authors whose books are not a part of the NEL collection to opt-in, and those who might feel a conflict of interest to opt-out.

We recognize that authors and publishers are going to be impacted by this global pandemic as well. We encourage all readers who are in a position to buy books to do so, ideally while also supporting your local bookstore. If they don’t have the book you need, then Amazon or Better World Books may have copies in print or digital formats. We hope that authors will support our effort to ensure temporary access to their work in this time of crisis. We are empowering authors to explicitly opt in and donate books to the National Emergency Library if we don’t have a copy. We are also making it easy for authors to contact us to take a book out of the library. Learn more in our FAQ.

Excerpt from the NEL announcement [1]

Whether these analyses were sound, to help build support for the NEL, IA also set up a public statement of their own[4], similar to the aforementioned Library Copyright Specialists statement, which they even cited as a “relevant document”. Said public statement has currently been endorsed by over 120 educational institutions and libraries including The MIT Press, Duke University Libraries and the National Library of Aruba.

The first to catch wind of the NEL were libraries, which is understandable seeing their close ties with the IA. The Library Journal[5] and the American Library Association[6] would tweet the news of the NEL from day 1.

From then on, libraries across the country, from New York[7] to Colorado[8] were more than ready to refer folks who couldn’t visit to the NEL.

It was only a matter of time before the National Emergency Library began to operate as a de facto International Emergency Library, as libraries from not only the US but from across the world offered it as an alternative to their readers during lockdown. These include libraries from Argentina[9], Spain[10] and Portugal[11], just to name a few.

These posts and shares by libraries across social media permitted the NEL to spread by word-of-mouth, it was only a matter of time before it caught the attention of the press. However, the power of word-of-mouth publicity would prove to be a double-edged sword, as each successive commentator abridged and omitted more and more details, turning everything into a messy game of telephone.

Jill Lepore of the New Yorker wrote a very positive story on the NEL[12]. Calling it a gift to readers everywhere, she compares it to an initiative during wartime:

… It reminds me a little, though, of the Council on Books in Wartime, a collection of libraries, booksellers, and publishers, founded in 1942. William Warder Norton, of W. W. Norton & Company, was chair of the council, which issued a statement declaring that “books are useful, necessary, and indispensable.” F.D.R. agreed, writing to Norton, “a war of ideas can no more be won without books than a naval war can be won without ships.” The council picked over a thousand volumes, from Virginia Woolf’s “The Years” to Raymond Chandler’s “The Big Sleep,” and sold the books, around six cents a copy, to the U.S. military, as Armed Services Editions, books for soldiers and sailors and Army nurses and anyone else in uniform. As Yoni Appelbaum wrote in The Atlantic a few years ago, the council effectively gave away more than a hundred and twenty million books—their very best titles—and created a nation of readers.

Colin Dwyer of NPR also wrote a story portraying the NEL in a positive light[13], as well as reminding readers that the IA’s non-loan collections of public domain books were, and would remain, accessible.

International press also played their part, the Jakarta Post also ran a story on the NEL, via Agence France-Presse, garnering almost a thousand shares at the time of writing this article[14].

Press attention would really bolster the NEL’s popularity to new levels, however not everyone was happy about the attention the NEL was receiving. On March 27, the Author’s Guild of America[15] and the Association of American Publishers[16] both issued statements condemning the NEL as opportunism in times of crises.

IA is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign. 

The statement by the Author’s Guild is a mixed bag, it practically opens up with acknowledging the bad blood between themselves and the IA, indicating a previous conflict of interest which shakes the credibility of some of their claims. One particular example being an unsourced claim that the IA ships millions of books to China for illegal scanning.

A strong point made is the point on the unusual model the Internet Archive’s Open Library follows; the books are neither eBooks licensed to publishers, nor are they hardcover books, but rather something in between, thus there is no legal framework to fit them in. But by removing the one copy at a time rule, the system is now virtually duplicating these books, DRM or not, this is a way of reproducing the books and a potential violation of copyright.

A strong emphasis is made on the economic struggle that authors were facing at the time, a point which was excluded from the stories which ran in the New Yorker and NPR. Although, it is imperative to note that as stated above, the NEL announcement does encourage any readers who have the means to support authors by purchasing their books. Claims made regarding the IA’s apathy to the economic struggle of authors suggest that whoever authored this statement had in fact not fully read the IA’s own NEL announcement.

Pessimistically, the NEL is dubbed as a “solution without a problem”. A claim made is that there is no such need for access to free books as publishers were more than ready to provide rental or purchase eBook versions or deliveries, linking readers to a list of resources curated by the AAP[17]. The issue here is turning a blind eye to what the L in the NEL stands for, the NEL ultimately emerged as a response to public library shutdowns, a channel of access to free books. And the IA weren’t merely a random group who styled themselves as an alternative once libraries were shutdown, but an organization which worked closely with libraries to help bring accessibility to their collections.

It is the height of hypocrisy that the Internet Archive is choosing this moment – when lives, livelihoods and the economy are all in jeopardy – to make a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity that it supports.

AAP President, CEO Maria Pallante [16]

The AAP’s statement was a lot more brief. Readers are instead directed to their collection of “approved” solutions [17] and a page describing why the IA’s “Controlled Digital Lending” system is fundamentally and categorically flawed[18].

Looking through the AAP’s collection of items, one will notice that there is actually freely accessible material for students who might not have had to physically purchase these during a regular school year. However, these are often in fact geo-restricted. Cengage offers free access to their entire digital platform and all of its ebooks, but only higher education institutions in the US are eligible[19]. Pearson similarly offers free access to some of their material, with varying accessibility for the US, UK and Canada[20]. This means that in a lot of cases, international students will still be unable access these materials, or have to purchase them. This has made the NEL, which does not restrict access to educational material based on geographical region, the only solution for a very real problem overseas.

Following these statements, a lot of authors would take a stance against the NEL. It was only a matter of time before the positive coverage turned negative.

The most famous of these, was a story by Alexandra Alter of the New York Times, the first major publication to bring attention to the authors’ plight[21]. Many of them were displeased to see their books being uploaded without their permission, with no royalties attached. Attention was also brought to the Author’s Guild’s and AAP’s comments on the matter.

Colin Dwyer of NPR, ended up writing another story [22] where he apologized for neglecting the situation of the authors. A portion of the story is also dedicated to a lengthy response published by IA a few hours ago, as a rebuttal to misconceptions about the NEL[23]. Mention is also made of how a lot of “brick-and-mortar” libraries had already turned to lending licensed eBooks.

In the coming days the NEL and IA continued to receive backlash from the likes of Copyright Alliance[24] and the Science Fiction Writers of America[25].

At the height of its popularity, people were no longer hearing about the NEL from the news, but from their favorite authors… It’s important to note however that contrary to the portrayal in the media, not all authors were opposed to the idea of the NEL for the same reasons. In fact, some celebrities and authors have endorsed it!

Astronaut Michael Collins[26], John Hopkins SAIS professor Thomas Rid[27] and, science fiction author Cory Doctorow[28] have commended the initiative for making the inaccessible, accessible.

Doctorow himself once coined a law, Doctorow’s First Law, which states: “Any time someone puts a lock on something that belongs to you, and won’t give you a key, they’re not doing it for your benefit”. [29] The metaphor here is a caution about DRMs, Doctorow strongly believes that any form of distribution where the author has no say, is against them. He willingly consents to the idea of having his books featured in the NEL, and his key in this case seems to be the opt-out form IA provides[30]. Yet other authors haven’t felt as “free”.

Authors such as Neil Gaiman[31] and Paige Christie[32] who have been willing to give permission for reading or recording of their books during the COVID-19 crisis, took offense to inclusion by default.

Some authors never even noticed the opt-out option, in particular, a tweet by Alexander Chee[33] went viral:

Authors such as Alisha Grouso [34] equated the initiative to piracy, as authors found themselves unable to receive royalties they were entitled to. Lauren Hough [35] suggested getting rid of non-public domain books altogether, Meg Waite Clayton [36] suggested they could circumvent all of this by just paying the license fee like any other eBook distributor.

For better or worse, these comments only attracted even more attention to the NEL and IA, which peaked in its search interest for the last 5 years.

(If you cannot see the above image, click here)

On March 31, the already shaky IA servers experienced a major outage due to the surge in user traffic!

This single moment of silence, spoke a lot about the entire NEL controversy. The NEL had brought the IA more attention than they’d received in years. A lot of the misconceptions or misunderstandings of the initiative were, simply put, due in large part to the word-of-mouth spread bringing in audiences who knew nothing about IA prior to the NEL. And on the IA’s part, they were clearly not prepared for this much attention. A lot more steps could have been taken to patronize writers instead of alienating them.

It was what it was. And so, after repairs the NEL would continue to operate for the next few months…

Stay tuned for the final part, where we’ll talk about the aftershocks of the NEL’s turbulent launch and the path which eventually led to its premature closure!

Sources:
[1]http://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/
[2]http://blog.archive.org/2010/06/28/digital-lending-library/
[3]https://docs.google.com/document/d/10baTITJbFRh7D6dHVVvfgiGP2zqaMvm0EHHZYf2cBRk/preview#, retrieved June 15, 2020.
[4]https://docs.google.com/document/u/1/d/e/2PACX-1vQeYK7dKWH7Qqw9wLVnmEo1ZktykuULBq15j7L2gPCXSL3zem4WZO4JFyj-dS9yVK6BTnu7T1UAluOl/pub, retrieved June 15, 2020.
[5]https://twitter.com/LibraryJournal/status/1242444354389716992
[6]https://twitter.com/ALALibrary/status/1242515783697281025
[7]https://twitter.com/UAlbanyLibs/status/1243613765557350400
[8]https://www.instagram.com/p/B-NgQKSFUhJ/?igshid=3e65cbkik6qc
[9]https://www.instagram.com/p/B-o9wfRnoor/?igshid=1bnspey7lffzr
[10]https://www.instagram.com/p/B-Y781NIX09/?igshid=1kmqck01cfgc1
[11]https://www.instagram.com/p/B-ZXEVUhmD9/?igshid=2avmaz58v296
[12]https://www.newyorker.com/books/page-turner/the-national-emergency-library-is-a-gift-to-readers-everywhere
[13]https://www.npr.org/sections/coronavirus-live-updates/2020/03/26/821925073/national-emergency-library-lends-a-hand-and-lots-of-books-during-pandemic
[14]https://www.thejakartapost.com/life/2020/03/28/national-emergency-library-releases-over-14-million-digital-books-for-free.html
[15]https://www.authorsguild.org/industry-advocacy/internet-archives-uncontrolled-digital-lending/
[16]https://publishers.org/news/comment-from-aap-president-and-ceo-maria-pallante-on-the-internet-archives-national-emergency-library/
[17]https://publishers.org/aap-news/covid-19-response/
[18]https://publishers.org/news/statement-on-flawed-theory-of-controlled-digital-lending/
[19]https://www.cengage.com/covid-19-support/
[20]https://www.pearson.com/news-and-research/announcements/2020/03/pearson-uses-global-reach-to-provide-learning-tools–expertise-f.html
[21]https://www.nytimes.com/2020/03/30/books/internet-archive-emergency-library.html
[22]https://www.npr.org/2020/03/30/823797545/authors-publishers-condemn-the-national-emergency-library-as-piracy
[23]http://blog.archive.org/2020/03/30/internet-archive-responds-why-we-released-the-national-emergency-library/
[24]https://copyrightalliance.org/ca_post/the-emergence-of-copyright-looting/
[25]https://www.sfwa.org/2020/04/08/infringement-alert-national-emergency-library/
[26]https://www.instagram.com/p/B-muOKMj5Py/?igshid=1kbx2j6y1k5gj
[27]https://twitter.com/RidT/status/1242803919258091523
[28]https://twitter.com/doctorow/status/1242515471510851585
[29]https://www.publishersweekly.com/pw/by-topic/columns-and-blogs/cory-doctorow/article/44012-doctorow-s-first-law.html
[30]https://twitter.com/doctorow/status/1242515473507315712
[31]https://twitter.com/neilhimself/status/1244087854063468544
[32]https://twitter.com/PaigeLChristie/status/1245360152833908745
[33]https://twitter.com/alexanderchee/status/1243584733369503746
[34]https://twitter.com/AlishaGrauso/status/1245030068105048064
[35]https://twitter.com/laurenthehough/status/1244837118431481856
[36]https://twitter.com/internetarchive/status/1244792891186106369

As a retrospective today, and an anecdote for the future, we’ve thrown together a timeline of events so far:

A lot has happened these past few months, and there is very much certainly a whole lot more to be said. Which is why we’ll be doing an in-depth analysis of the situation in the coming days. Stay tuned!

Sources:

[1]https://www.youtube.com/watch?v=jggndUgvhrk
[2]https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200121-sitrep-1-2019-ncov.pdf?sfvrsn=20a99c10_4
[3]https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200211-sitrep-22-ncov.pdf?sfvrsn=fb6d49b1_2
[4]https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it
[5]https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020
[6]https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak
[7]https://docs.google.com/document/d/10baTITJbFRh7D6dHVVvfgiGP2zqaMvm0EHHZYf2cBRk/preview#
[8]http://www.ala.org/news/press-releases/2020/03/ala-executive-board-recommends-closing-libraries-public
[9]http://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/
[10]https://www.newyorker.com/books/page-turner/the-national-emergency-library-is-a-gift-to-readers-everywhere
[11]https://www.npr.org/sections/coronavirus-live-updates/2020/03/26/821925073/national-emergency-library-lends-a-hand-and-lots-of-books-during-pandemic
[12]https://publishers.org/news/comment-from-aap-president-and-ceo-maria-pallante-on-the-internet-archives-national-emergency-library/
[13]https://www.authorsguild.org/industry-advocacy/internet-archives-uncontrolled-digital-lending/
[14]https://www.nytimes.com/2020/03/30/books/internet-archive-emergency-library.html?ref=oembed
[15]https://www.npr.org/2020/03/30/823797545/authors-publishers-condemn-the-national-emergency-library-as-piracy
[16]http://blog.archive.org/2020/03/30/internet-archive-responds-why-we-released-the-national-emergency-library/
[17]https://twitter.com/internetarchive/status/1244792891186106369?s=20
[18]https://www.techdirt.com/articles/20200414/11273744299/senator-tillis-angry-internet-archive-helping-people-read-during-pandemic-archive-explains-why-thats-wrong.shtml
[19]https://assets.documentcloud.org/documents/6935704/4388-1.pdf
[20]https://blog.archive.org/2020/06/10/temporary-national-emergency-library-to-close-2-weeks-early-returning-to-traditional-controlled-digital-lending/