The Internet Archive has been taking some heat for their National Emergency Library initiative. I think the NEL is a very, very good thing, and I’d like to explain why.

First, you need to know what the National Emergency Library is. It’s just a change in access policy: For the duration of the COVID-19 crisis in the U.S., with millions of students forced to do their learning at home, the Internet Archive is removing the artificial scarcity of “lending limits” on the digital books they have copies of. That’s a lot of books — the Archive has one of the largest collections available online.

This temporary suspension of lending limits upsets the fiction that digital lending is like physical lending. In a physical library, when I borrow a book, that’s one less physical copy for the library to lend out, and when all the copies are lent out, then no new borrowers can get that book until someone returns a copy. While no such limitation needs to exist for digital books, copyright law in practice forces digital libraries to behave as if they were lending out physical copies anyway. They have to pretend that they have a certain number of copies, and when the “last” copy is lent out, then they can’t “lend” (i.e., make and send) a new copy until one of the existing copies is “returned”.

Returning a digital copy is, of course, a fundamentally meaningless notion, but what it boils down to is the reader running some piece of software that promises to the Internet Archive that the reader’s copy of the book is deleted on the reader’s device now. The Archive then marks that copy as “returned”.

Why a Suspension of Lending Limits Makes Sense Now.

Even if we were to believe the noblest and most public-spirited interpretation of copyright law — that a time-limited distribution monopoly motivates the creation of new works — we must still admit that it is a compromise designed for specific circumstances.

Those circumstances always included a functioning physical marketplace and distribution system. Libraries obtained and lent books within that context, and until now, in an academic context that meant physical access to the library by students and physical proximity of the students to each other: that is, the possibility of multiple students learning from the same source material — whether physical or digital — together in person.

(By the way, there are reasons to be skeptical about the premise that copyright was designed for public good rather than for private monopoly interests in the first place, but let’s grant the premise for the moment, in order to give the other side’s arguments their strongest hearing.)

Suddenly, because of a global pandemic, circumstances have drastically changed. The compromise should change with them.

For one thing, the notion that students, now “attending” class from home, would still have access to the same books they had access to before is obviously wrong. Many of the books in school libraries are not digitized. In some cases, even if the book is digitized somewhere, the particular school library or public library in question may not have access to that digital version, even if they have hundreds of physical copies in stock.

But focusing on individual access misses the larger point. What is happening here is an ecosystem transformation. The important questions are not about what an individual student has access to, but about the bigger picture: the ongoing and still-improvisational adaptation that students, families, and teachers are making together to this new situation in which scholastic interaction is suddenly bandwidth-limited in both literal and figurative senses.

When we’ve already deliberately transformed our normal personal and economic lives, when the entire educational system is radically redesigning itself as it figures out how to operate with physical distancing and all-digital resources, when people are even willing to take drastic steps like giving up freedom of physical movement, why on Earth would we assume that our previous policy of monopoly-limited access to books should — unlike virtually everything else — remain unchanged, as though nothing had happened?

With students forced to be far apart physically, we have to rethink the damage done (hitherto tolerated but lately suddenly increased) by artificially fragmenting the digital material they have access to. Before this crisis, they had the option of looking together at the same book in person, even if only one of them was the official borrower. Now that they can’t do that it becomes even more important to make shared experience possible across physical distance. If that means suspending some artificial limits on access, well, if not now, when? If this circumstance doesn’t make us reconsider the relative values of all sides of the already-shaky copyright compromise, then we would have lost sight of its alleged purpose entirely. Or, as I think more likely, we would reveal that its actual purposes have always been different from what its defenders claimed.

The Internet Archive has already started collecting the stories from teachers who are gratefully relying on the National Emergency Library. But my guess is the stories we hear so far are just the ones that are easiest to collect. The true value of the National Emergency Library can only be documented after students and teachers have had a chance to show what they can do when they finally have — at least for a time — unfettered access to a significant portion of the world’s accumulated texts.

To shut down this experiment now, when it is most needed, would be an immense failure of the imagination. It would be all the more short-sighted to fail in the name of preserving a monopoly system that is itself still experimental. After three hundred years of highly controversial results, in which pro-monopoly interests have steadily and successfully pushed for ever-longer copyright terms — including retroactive term extensions, which make no sense even given copyright’s own mythic self-explanation — and for ever-stronger powers of restriction, what could be the justification for refusing to try some experiments in the other direction for once?

Thank goodness the Internet Archive is willing to try. There will never be a more appropriate time than now. The objectors remind me of those who opposed FDR’s experimentation during the Great Depression of the 1930s. As he said then:

“The country needs and, unless I mistake its temper, the country demands bold, persistent experimentation. It is common sense to take a method and try it; if it fails, admit it frankly and try another. But above all, try something.”

So who’s objecting?

The Authors Guild, of which I am a member, has been one of the loudest objectors. I recently received an email from them asking me to sign an open letter addressed to the Internet Archive.

The open letter says exactly what you would expect it to. Institutionally, the Authors Guild has long been a copyright maximalist. Although the Guild does many fine things — advocating for freelancer benefits for authors, providing tools for authors to build their own web sites, helping authors negotiate with publishers, etc — it has consistently argued in favor of longer and tighter monopolies restricting the circulation of books, and was doing so long before the National Emergency Library came on the scene.

The argument that the National Emergency Library is hurting authors is pretty weak. The Guild’s claim might have more weight if they provided some evidence for it, which they do not. Amusingly, and no doubt unintentionally, their letter actually makes a case for the insufficiency of copyright-based royalties in sustaining authors, where it writes that during the COVID-19 crisis “…The freelance writing assignments and speaking engagements that many authors rely on to supplement their income are unavailable, and yet authors are not eligible for traditional unemployment.” (To its credit, the Guild is arguing to Congress to expand the Pandemic Unemployment Insurance for freelancers to include authors — but of course, this has nothing to do with the National Emergency Library nor with copyright law.)

The Internet Archive, meanwhile, has made some pretty powerful arguments on the other side. I can do no better than quote their own words:

…Last week we released a first look at some trends in use of the National Emergency Library. Corroborating what we are hearing from professors, our patrons are seeking older books: more than 90% of the books borrowed were published more than 10 years ago and two-thirds were published during the 20th century. Most patrons who borrow books from the National Emergency Library are reading them for less than 30 minutes, suggesting they are using the book for research as a reference check, or perhaps they are simply browsing as in a library or bookstore. In the few weeks since the National Emergency Library was established, much has been said in the Twittersphere about the very real needs of publishers and authors. Completely missing in the debate are the voices of the 1,576,021,818 students worldwide cut off from their books—books already purchased by their schools, public libraries and community colleges. For a few weeks, until this educational and public health crisis subsides, the National Emergency Library is trying to help fill this void.

Note also that the National Emergency Library makes it easy for any author request that their book be removed from the program, which the Authors Guild open letter somehow fails to mention.

The Internet Archive is conducting an important experiment responsibly. We should let them. If a crisis like this is not the time to try something new, then we would essentially be admitting that even in principle the copyright system should never be responsive to public need in changing circumstances. If that’s the position of the Authors Guild and other objectors, then they should say so frankly. It would still be the wrong position, but at least we’d be having the right discussion.

(Note: We’ve had some really interesting followup discussion about this piece with authors Edward Hasbrouck and Michael Capobianco, who are active with the National Writer’s Union. It’s taking place on Twitter — see the thread starting here.)