The suit brought by the American Association of Publishers in SDNY against the Internet Archive shows a level of dishonesty and callousness that is wholly out of step with copyright law, the special place and protections of libraries under that law, and the plight of library users during our current pandemic. Why?
The Internet Archive is a public library, registered under the State of California. It is also a 501(c)(3) non-for-profit. Their whole organization literally has no commercial interest.
We may quibble with aspects of the rollout of the NEL, but no neutral, objective, or reasonable person would fairly conclude that the Internet Archive hasn’t acted wholly for the common good, the greater good of society, and the US constitutional good of the advancement of scientific progress.
The AAP suit attempts to drive a wedge between this library and all other libraries. Don’t let them do it.
Its advocates will attempt to mislead with misinformation, fear and absurd theatrics to scare libraries from doing anything. Don’t let them scare you.
Publishers Association CEO Stephen Lotinga went so far as to claim that the Internet Archive is not a library. Don’t believe him.
The Authors Guild president is equating the Internet Archive’s operations with that of looters. This kind of dog whistle is as dishonest and hysterical as it is offensive.
The biggest lie in the lawsuit, though, is the conflation of the Open Library and the National Emergency Library.
The former, the Open Library, is a Controlled Digital Lending platform and workflow with a solid legal basis affirmed in a position paper, one fully endorsed by dozens of legal experts and libraries (including the California State University Libraries where I work), and dozens more Library leaders around the world.
The latter, the National Emergency Library, is an emergency measure and usage of the Open Library. It is temporary, announced from its inception to end on June 30, 2020. Again, hundreds of library leaders have signed and endorsed a statement of support for the NEL.
Even now, the Internet Archive’s emergency measure is in nuce an exercise of our collective First Sale rights as Libraries, since we are still physically unable to lend books to the public that we have legally purchased.
As an academic researcher and author myself, right now I still can’t get access to most of the print books I need for my research that would ordinarily be readily available to me as a library user. This is even the case for me as a library employee and faculty member!
The temporary open licenses provided by publishers during this pandemic have not come close to filling that enormous gap in access brought about by COVID-19. The Internet Archive is a godsend for researchers and the furtherance of scientific progress at this time, because it at least is helping to fill a small part of that gap.
This is the time for library leaders to take the right side and just cause, not merely be spectators watching the legal drama unfold in the news while publisher monopolies attempt to defame and decimate the Internet Archive.
For Universities and Libraries who have not yet done so, formalize and announce your partnership with the Internet Archive’s Open Library. Stand with them as amici. If you have lawyers who can help, get them involved in the legal fight. The majority of your faculty, students, and user public are on your side. Justice is on your side. The law is on your side.
But Academic and Public Library Directors and Deans should now go one step farther and utilize our power of collective action and collective bargaining.
Boycott all future book purchases and license agreements from the plaintiffs—Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House—until the suit is dropped.
When big publisher monopolies attack one library, they attack all libraries. When they try to censor First Sale rights-based access to books from one library, they are censoring and intimidating all libraries.
This is the time for total solidarity among libraries to stand up together for our rights and the good of the public.
Update: Ashley Farley from the Gates Foundation has Tweeted her support and provided suggested hashtags.
The previous call to solidarity was made back on May 6th and provides additional perspective and reasons why OL/CDL is legally solid and why the NEL is a practical necessity.