Sometime last year, I was chatting about digital first sale and e-lending with a highly respected copyright lawyer, someone who is deeply knowledgeable about those issues. We were talking about the library community’s longstanding attempts to get a lending right for digital files in law. We noted that those folks have apparently given up on the idea of getting such a right through legislation and are instead talking about the idea of pressing a fair use argument through litigation. This would require a long, expensive battle, potentially all the way to the Supreme Court. I expressed skepticism that anyone would have both the deep pockets and institutional motivation to pursue this strategy. The lawyer replied that there is one person who could and might do it: Brewster Kahle.

Brewster Kahle is, of course, the founder of the Internet Archive, and a pioneer in search engine technology. I am a big fan of the Internet Archive. It is indispensable to me in my work. It is a tribute to the ingenuity of engineers who have figured out how to build something like this on a system that was emphatically not designed to support it; it’s one of a very few technologies that I consider darn close to magic. I donate (modestly) to it every year. So it’s unfortunate that the Archive’s latest move, to loosen copyright law by establishing a “National Emergency Library” during the COVID-19 crisis, appears to be backfiring.

The Internet Archive operates the Open Library, a service that e-lends PDFs and EPUBs of 1.4 million books, all in copyright, many written by authors who are still alive, and many still in print. It uses Adobe DRM technology, so that users need to use Adobe Digital Editions or another compatible e-reader app (e.g., Bluefire Reader). Each e-loan lasts two weeks, after which the e-book can’t be read.

Until now, the Archive has used this technology to support a model called Controlled Digital Lending (CDL), in which only one person at a time can “borrow” a title, meaning that the model fits what library technologist Eric Hellman has called “Pretend It’s Print.” The difference between CDL and what commercial e-lending platforms like OverDrive do isn’t really technological but legal. OverDrive uses similar technology to the Internet Archive’s CDL model, but it does so under licenses from copyright owners.  The public and school libraries that use OverDrive pay license fees per title that are often higher than the books’ retail prices. The Internet Archive owns a print copy of each book it e-lends using CDL; it claims that its ownership of the print book gives it a fair use right to make it available under CDL without having to seek the copyright owner’s permission or pay it any license fees.

Opinions diverge widely as to whether CDL is legal, and the issue has not specifically been tested in courts. But the National Emergency Library is not CDL. For the National Emergency Library, the Archive has eliminated the one-person-at-a-time rule and made it possible for any number of people to e-borrow a title at the same time. You still e-borrow a title for two weeks, you’re the only one who can open it during that time, but then you can just e-borrow it again after the two weeks elapse. So, it’s not quite the same as sharing DRM-free files, but the practical differences are minimal.

The Archive has said that it will continue to make e-books available this way until the U.S. national emergency is lifted or June 30, whichever is later. The ostensible purpose is to make materials freely available to students who are stuck at home and attending school online while brick-and-mortar libraries are closed. While the National Emergency Library could help students as they transition abruptly to distance learning this semester, it also provides free access to over a million in-copyright titles to anyone in the world with an Internet connection who wants them.

There’s no doubt that the Internet Archive is making a calculated, opportunistic move here to expand the boundaries of copyright law. It is using tactics that are well known to tech-industry public policy types. The trouble is that these tactics seem to have passed their sell-by date.

Tech industry policy folks have learned over the past couple of decades that influencing tech policy requires swaying public opinion, that it’s no longer sufficient just to use lobbying tactics to sway legislators. The tactic of finding a sympathetic segment of the public (here, school and college students) and using them as poster children, claiming that your initiative benefits them and therefore should be allowable, is also well-trodden territory.

The problem for the Internet Archive is that the publishing industry has its own harmed class: authors, who lose royalties over these tactics, and are also losing income in the COVID-19 pandemic just like millions of other people. And authors are gaining their own sympathy in public opinion.

The Internet Archive’s objective is either to draw a lawsuit from the publishing industry or to obtain the industry’s tacit approval of its “emergency” model if they don’t file one. It is betting that the industry will be cowed into the latter by the threat of bad optics. But the optics aren’t looking as bad as they were 10-20 years ago. The Association of American Publishers, the Authors Guild, and the National Writers Union have written scathing statements condemning the Archive for this tactic. The AAP calls it “a cynical play”; the AG calls it “an excuse to push copyright law further out to the edges” and has sent Kahle an open letter. Neither has filed any lawsuit for copyright infringement … yet.

The AAP maintains a growing list of initiatives to license publishers’ materials for distance learning, often for free, that have started very quickly in the wake of the crisis. One of these free licensing programs is being organized by the Copyright Clearance Center, which has signed up about 200 publishers at this time of writing. It’s not clear how the body of materials available under these licenses overlaps with the material in the National Emergency Library, or indeed with the actual educational needs of students affected by the pandemic.

There’s plenty of evidence that the Archive’s tactic is a calculated one. First is its insistence on “opt-out” takedown notices from authors to remove titles from the Emergency Library rather than asking permission first. The AG has advised its members to send takedown notices. Yet the director of the University of North Carolina Press said that he told the Archive that he would have given them permission to distribute his titles if he had asked them first; but they weren’t interested in asking permission and merely insisted on receiving takedown notices for each title.

Further evidence is the Archive’s own reticence on the legality of the move compared to its long history of pro-fair-use activism. Although the Archive has expounded at length on its legal position regarding CDL, it refers to CDL as something it does “during normal times” and says nothing about the legality of removing the one-user-at-a-time restrictions. In contrast, the Internet Archive has filed amicus briefs on behalf of defendants in several high-profile digital copyright lawsuits, including Capitol Records v. Jammie Thomas-Rasset (music file sharing), Fox News v. TVEyes and UMG v. Veoh (platform liability), and Capitol Records v. ReDigi (resale of digital music files).

I have seen zero substantive arguments that the Emergency Library isn’t engaging in copyright infringement, even from the usual copyright experts on that side of such arguments. (Even Jonathan Band, the library community’s longtime copyright advocate, studiously shied away from this argument in the blog post he wrote about the situation.) The Archive claims “public support” for the Emergency Library in the form of a list of supporters who are overwhelmingly librarians, not the general public.

And other digital archives are launching activities in response to COVID-19 that throw the Emergency Library into sharp relief. The Library of Congress announced expanded online access to its collection of open-access titles, i.e., works for which authors gave permission for open access, such as through Creative Commons licenses. And the HathiTrust Digital Library–no stranger to copyright controversies–just announced an emergency plan that is far more limited than the Internet Archive’s: it is now using a CDL (one-copy-one-user) model and restricting it to only those member libraries in the U.S. that have experienced “unexpected or involuntary, temporary disruption to normal operations, requiring it to be closed to the public” and stating that it will evaluate libraries’ requests to get access on a case by case basis. In other words, HathiTrust’s emergency model is more restrictive than the Internet Archive Open Library’s non-emergency model.

The Internet Archive scored a couple of early positive mentions in the press. One was a piece in the New Yorker by Jill Lepore, which demonstrated that while Lepore may be a great historian and an engaging writer, she isn’t much of a journalist: her only source on the legality of the Emergency Library was her Harvard colleague Kyle Courtney, who is involved with the Internet Archive and is a coauthor of a 2018 paper outlining the purported legal basis for CDL that the Archive cites.

But that was last week; the tide has been turning since. The backlash from authors–not just big-name authors but many independents–has been mounting. Another bit of early positive publicity was a piece on NPR, which the author subsequently recanted. The Verge, usually a mouthpiece for the tech industry, published a piece earlier this week asking “is it lending or piracy?“.  Timothy B. Lee of Ars Technica, a longtime copyleft sympathizer, wrote a thoughtful and balanced piece that sources the esteemed and historically big-copyright-skeptic legal academic James Grimmelmann of Cornell. Another thoughtful and skeptical piece by Karin Wulf of William and Mary University appeared in the Society for Scholarly Publishing’s respected blog The Scholarly Kitchen.

The key difference between the press coverage of the Emergency Library and press treatment of similar incidents 10-20 years ago is the consistent use of the word “author,” as opposed to “publishers,” “publishing industry,” “media industry,” “Big Media,” etc. The equation of Copyright = Big Exploitative Media Companies served the tech industry well during the Napster era and beyond, but perhaps not so much anymore. If the optics don’t deter authors and their allies, then the Internet Archive may end up paying dearly for its tactics; and given all the great things that the Archive does, that would be a shame.