{"id":7633,"date":"2020-07-13T18:32:05","date_gmt":"2020-07-13T18:32:05","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=7633"},"modified":"2026-02-03T20:27:59","modified_gmt":"2026-02-03T20:27:59","slug":"copyright-office-questions-legality-of-internet-archives-national-emergency-library","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2020\/07\/13\/copyright-office-questions-legality-of-internet-archives-national-emergency-library\/","title":{"rendered":"[Archived Post] Copyright Office Questions Legality of Internet Archive\u2019s National Emergency Library"},"content":{"rendered":"

\"theOn March 24, the Internet Archive (Archive) unveiled<\/a> what it called the \u201cNational Emergency Library\u201d (NEL) in order to \u201caddress our unprecedented global and immediate need for access to reading and research materials.\u201d The announcement specified that Archive would suspend the waitlist for 1.4 million books in its unlicensed \u201clending library\u201d until at least June 30, thus allowing an unlimited number of people to download electronic copies of the same book at the same time. Archive had previously employed a controlled digital lending (CDL) model where the number of downloads was tied to the number of physical copies Archive or its partners possessed. With the waitlist suspended, Archive temporarily abandoned the CDL model that it had relied on since 2011.<\/p>\n

Archive\u2019s release of 1.4 million copyrighted works without a license certainly caught people\u2019s attention. The Authors Guild quickly condemned<\/a> the move, claiming that Archive \u201chas no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author.\u201d Maria Pallante, President and CEO of the Association of American Publishers, likewise denounced<\/a> Archive\u2019s announcement: \u201cWe are stunned by the Internet Archive\u2019s aggressive, unlawful, and opportunistic attack on the rights of authors and publishers in the midst of the novel coronavirus pandemic.\u201d Archive then responded<\/a> in a blog post explaining that it had suspended its waitlist due to the \u201ctremendous and historic outage\u201d in the nation\u2019s libraries caused by the pandemic and arguing that fair use is the \u201clegal doctrine underlying\u201d its CDL model \u201cduring normal times.\u201d<\/p>\n

A couple of weeks later, on April 16, Senator Tom Udall (D-NM) sent a letter<\/a> to Acting Register of Copyrights Maria Strong asking the Office \u201cto examine the National Emergency Library that has been organized by the Internet Archive which is operating without typical library licenses and is causing authors in New Mexico concern about the integrity of their copyrights.\u201d In particular, Sen. Udall asked the Office to \u201cinclude a legal analysis of the Internet Archive\u2019s National Emergency Library” under Section 107 and to \u201crecommend any corrective action that you deem necessary to comply with copyright law and protect authors.\u201d<\/p>\n

On May 15, Acting Register Strong submitted a detailed response<\/a> to Sen. Udall, noting that \u201cit is not the Office\u2019s general practice to provide legal advice about specific factual scenarios\u201d and that the \u201cOffice is particularly cautious about weighing in on circumstances or disputes between private parties.\u201d Nevertheless, the Office provided a general analysis of how copyright law applies to libraries and then looked at how that analysis applies to \u201cthe Internet Archive\u2019s recent activities.\u201d Notably, the Office ultimately concluded that it \u201cwould have been beneficial for the Internet Archive to engage with writers and publishers prior to launching the National Emergency Library to discuss the contemplated parameters for the project and determine their willingness to participate.\u201d<\/p>\n

On June 1, a couple of weeks after the Office submitted its response to Sen. Udall, four major publishers, including Hachette, HarperCollins, Penguin Random House, and Wiley, filed suit<\/a> against Archive for copyright infringement in the Southern District of New York. The complaint, which includes 127 works-in-suit<\/a>, alleges that Archive\u2019s CDL and NEL models infringe on their works, both directly and indirectly. This blog post does not address that dispute, though the publishers do raise many of the same issues in their complaint that the Office raised in its response to Sen. Udall. This blog post merely summarizes the Office\u2019s reasoning on the fair use analysis of Archive\u2019s National Emergency Library. It is worth noting that, even though Archive announced<\/a> on June 10 that it was shutting down its NEL, the legality of the NEL is still a live issue in the publishers\u2019 lawsuit.<\/p>\n

Fair Use Under Section 107<\/strong><\/p>\n

Looking at the first fair use factor under Section 107<\/a> generally, the Copyright Office notes that while the \u201cgoals of promoting scholarship and education are explicitly identified in the statute as favored purposes,\u201d it \u201cis generally understood that many uses of copyrighted works by schools and universities must be licensed.\u201d Citing Oracle v. Google<\/em> and Authors Guild v. HathiTrust<\/em>, the Office points out that \u201creproducing the text of physical books in digital format is not transformative unless the change in format results in new uses<\/em> for the work.\u201d Moreover, it explains that using educational materials for educational purposes \u201cwould not serve a different purpose than the original.\u201d<\/p>\n

Turning to the NEL specifically, the Office takes issue with Archive\u2019s claim that \u201cthe vast majority\u201d of the books it makes available \u201cdo not have a commercially available ebook\u201d that would be publicly available given that libraries are closed. On the contrary, the Office states that \u201cArchive does not appear to have verified if any of the works in its collection were available to the public in digital formats prior to including those books in its collection or removing its waiting lists\u201d and that the NEL \u201cincludes many books for which ebooks are available commercially\u201d at local libraries. Thus, the argument that Archive was making available works that were otherwise unavailable \u201cdoes not apply to any books that were available in digital formats at the time of the copying.\u201d<\/p>\n

The Office notes that the NEL is available to the public for free such that Archive\u2019s use is noncommercial. However, it emphasizes that Archive\u2019s stated purpose of promoting scholarship and education \u201calone does not establish fair use.\u201d Indeed, the Office points out that \u201cat least some\u201d of the 1.4 million works, such as \u201cStephen King thrillers and joke books,\u201d are \u201clikely to be accessed for entertainment rather than educational purposes.\u201d Even for the educational books that are not available in digital formats, the Office explains that the noncommercial purpose must be weighed against \u201cthe non-transformative nature of the use.\u201d Given that educational works are \u201coriginally intended to educate,\u201d Archive\u2019s use of these works \u201cis not transformative.\u201d And given that Archive does not provide \u201csearch functionality,\u201d it does not fit within the \u201cdigitization cases\u201d that were \u201cdeemed transformative,” such as Google Books<\/em> and HathiTrust<\/em>.<\/p>\n

On the second factor, the Office cites Campbell v. Acuff-Rose<\/em> for the proposition that \u201csome works are closer to the core of intended copyright protection than others\u201d and Harper & Row v. Nation<\/em> for the point that the \u201claw generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.\u201d The Office also notes that there may be \u201cmore justification\u201d for reproducing previously published works that are \u201ccurrently unavailable in the marketplace.\u201d Nevertheless, it explains that the existence of organizations to provide copies of such works is relevant to this factor, and it mentions that the case law on a \u201cwork\u2019s print status under the second factor is mixed.\u201d<\/p>\n

Applying this to the NEL, the Office clarifies that the analysis of the second factor is necessarily \u201cfact-specific\u201d and that each work or category of works \u201cwould need to be evaluated independently.\u201d For example, \u201ccreative works\u201d would be analyzed differently than \u201cfactual or informational works.\u201d And while the unavailability of certain works might favor fair use \u201cin some circumstances,\u201d the Office notes that this does not appear to have been Archive\u2019s focus. Archive instead focused on whether the books were available in digital form, making no \u201cmention of the works\u2019 overall availability.\u201d<\/p>\n

The key to the third factor, the Office explains, is \u201cwhether the secondary use employs more of the copyrighted work than is necessary, and whether the copying was excessive in relation to any valid purposes asserted under the first factor.\u201d Moreover, while \u201ccopying an entire work often weighs against a finding of fair use,\u201d the factor \u201cwould not weigh against a finding of fair use\u201d if \u201cit were necessary to copy the entire copyrighted work to achieve the purpose of the secondary use.\u201d<\/p>\n

The Office notes that the CDL White Paper<\/a><\/em>, upon which Archive relies, \u201cargues that it is necessary to copy the entire book to achieve the purpose of providing digital access to the work, such that the copying is not excessive in relation to the library\u2019s purpose.\u201d The CDL White Paper<\/em> also argues that \u201cthe library prevents users from making additional copies of or further distributing the book and limits the duration for which a user can access a book.\u201d In response, the Office points out that the courts in Google Books<\/em> and HathiTrust<\/em> \u201cemphasized that the defendants had not made the full text of the copied works visible to the public\u201d and how the Office itself (see here<\/a>, here<\/a>, and here<\/a>) has \u201cconsistently expressed doubt that providing digital access to complete works can be considered a fair use.\u201d<\/p>\n

Quoting Harper & Row<\/em>, the Office notes that the fourth factor, which is \u201cundoubtedly the single most important element of fair use,\u201d turns on \u201cwhether widespread conduct similar to the conduct of the alleged infringer \u2018would adversely affect the potential<\/em> market for the copyrighted work.\u2019\u201d The Office explains that, under Google Books<\/em> and HathiTrust<\/em>, the third and fourth factors are linked: \u201cthe risk that the digitized version will serve as a market substitute for the original work increases as the amount of the work that is made accessible to the public increases.\u201d In both of those cases, the copying of entire works was permissible because it enabled transformative search functionality without serving as a market substitute by making the entire works available.<\/p>\n

Turning to the NEL, the Office acknowledges a \u201cdisagreement among stakeholders over whether the analysis of market harm under the fourth fair use factor should consider the Internet Archive\u2019s activities as roughly analogous to physical lending by libraries, or whether the markets for physical lending and ebook licensing to libraries are distinct.\u201d The Office points out that no court has embraced the former approach and that \u201cthe Second Circuit squarely rejected it\u201d in Capitol Records v. ReDigi<\/em>. Moreover, the Office cites its own report<\/a> noting that there are \u201csignificant differences\u201d between lending physical copies and digital ones. And it points out that the NEL \u201clacks the controls cited by the CDL White Paper<\/em> as necessary to mitigating market harm\u201d since it allows \u201can unlimited number of users to borrow any given title simultaneously.\u201d<\/p>\n

On the latter approach, which holds that the market for ebook licensing is distinct from that of physical lending, the Office states that there is already \u201can established market\u201d where \u201cpublishers and authors license their works to libraries for the purpose of digitally \u2018lending\u2019 them to patrons.\u201d The fourth factor analysis here \u201cmight focus on whether the creation and distribution of digital versions of these works would affect this market, and also how, if such conduct became widespread, it would affect this market.\u201d If digital versions of some works were not available in the marketplace, the Office concludes, \u201cthis factor might favor fair use for some, but not necessarily all, of the works contained in the National Emergency Library.\u201d<\/p>\n

The Office also examines how \u201cexigent circumstances\u201d related to the pandemic may factor into a fair use analysis. The Office notes that there \u201cis undoubtedly a strong public interest in ensuring continued access to educational materials in this unprecedented time, which could weigh in favor of fair use.\u201d However, while Archive\u2019s goal \u201cmay be laudable, so is respect for copyright.\u201d The Office states that it \u201cwould be imprudent to excuse widespread copying due to a national emergency without considering the possible repercussions on copyright law and copyright owners\u201d since there \u201cis also a strong public interest in ensuring that authors are able to financially survive the coronavirus crisis to be able to continue to produce creative works.\u201d And it concludes by noting that a \u201ccourt would almost certainly also take into account\u201d Archive\u2019s effect \u201con writers and publishers.\u201d<\/p>\n

Conclusion<\/strong><\/p>\n

The Copyright Office ultimately suggests that Archive may wish to \u201cexplore opportunities for collaboration with writers and publishers\u201d such as by \u201callowing them to opt into making digital versions of their works publicly available.\u201d While the Office never explicitly says that any particular work is being infringed, its analysis does indicate that, in its opinion, Archive cannot claim that it is engaging in fair use for all of the works made available with its National Emergency Library. Furthermore, the Office explains why other statutory limitations, such as the first sale doctrine under Section 109<\/a>, would not apply to Archive\u2019s activities. All in all, it seems clear that the Office is quite skeptical of the NEL\u2019s legality under the fair use doctrine. Though, it remains to be seen whether the Southern District of New York will agree with the Office\u2019s analysis.<\/p>\n","protected":false},"excerpt":{"rendered":"

On March 24, the Internet Archive (Archive) unveiled what it called the \u201cNational Emergency Library\u201d (NEL) in order to \u201caddress our unprecedented global and immediate need for access to reading and research materials.\u201d The announcement specified that Archive would suspend the waitlist for 1.4 million books in its unlicensed \u201clending library\u201d until at least June […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10],"tags":[178,179,180,246,543,561,626,654,721,919,995,1004,1189,1307,1308],"class_list":["post-7633","post","type-post","status-publish","format-standard","hentry","category-copyright","tag-authors-guild","tag-authors-guild-v-google","tag-authors-guild-v-hathitrust","tag-campbell-v-acuff-rose","tag-fair-use","tag-first-sale-doctrine","tag-google-books","tag-harper-row-v-nation","tag-internet-archive","tag-maria-strong","tag-national-emergency-library","tag-nel","tag-publishers","tag-section-107","tag-section-109"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7633","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=7633"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7633\/revisions"}],"predecessor-version":[{"id":15682,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7633\/revisions\/15682"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=7633"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=7633"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=7633"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}