Last week, the Internet Archive launched a “National Emergency Library” offering access to 1.4 million free books during the coronavirus pandemic. The library aims to serve people who can’t access a normal classroom or public library, and it’s open worldwide until June 30th or whenever the US ends its national emergency. But it’s raised questions about whether the Internet Archive’s trove of books is legal — and whether it hurts writers.

The Emergency Library is an expansion of the Open Libraries initiative, where the Internet Archive worked with libraries to scan their books. For nearly a decade, it’s let people “check out” books through a waiting list, making them available in the same quantities as their hard-copy counterparts. As the libraries see it, it’s the digital equivalent of checking out a physical book from your local library branch, and publishers haven’t generally tried to shut it down.

“They scan books illegally and put them online. It’s not a library.”

But the Emergency Library goes further, suspending the waitlists and making the books immediately accessible to everyone in response to the ongoing pandemic. “This is a response to the scores of inquiries from educators about the capacity of our lending system and the scale needed to meet classroom demands because of the closures,” writes Open Libraries director Chris Freeland.

The changes have drawn condemnation from some writers. The Authors Guild said on Friday that it’s “appalled” by the National Emergency Library, accusing the Internet Archive of “acting as a piracy site” that “tramples on authors’ rights by giving away their books to the world.”

A number of authors have joined the Guild in condemning the project, including Colson Whitehead and N.K. Jemisin. “They scan books illegally and put them online,” wrote Whitehead in response to a New Yorker article about the project. “It’s not a library.”

The Internet Archive also hosts public domain ebooks that are available without restrictions, but the Emergency Library specializes in books that are still under copyright, including many popular novels. Current top-viewed listings include André Aciman’s Call Me By Your Name, Margaret Atwood’s The Handmaid’s Tale, and J.K. Rowling’s Harry Potter and the Goblet of Fire. (Authors can contact the Internet Archive to request that their books be removed.)

“The idea that this is stealing fundamentally misunderstands the role of libraries in the information ecosystem.”

As Ars Technica details, the library raised big copyright questions even before the Emergency Library update. The normal Open Libraries project uses “controlled digital lending” or CDL, where a library scans a physical book and lets one person “check out” the copy at a time. Unlike the official ebook lending programs at many public libraries, it can offer obscure out-of-print books or “orphan works” with unclear ownership. “While readers and students are able to access latest bestsellers and popular titles through services like OverDrive and Hoopla, they don’t have access to the books that only exist in paper, sitting inaccessible on their library shelves,” writes Freeland. “That’s where our collection fits in.”

Some courts have ruled that libraries can fairly scan books, although the most high-profile cases have involved “transformative” use of the scanned books, not just reproduction of them online. That includes an Authors Guild lawsuit against Google Books, which lets people search for limited words and phrases, and another case against HathiTrust, which offered scanned book access to people with print disabilities. “The idea that this is stealing fundamentally misunderstands the role of libraries in the information ecosystem,” wrote Freeland in a response to critics yesterday.

Ebook printer go ‘brrr’

But the Emergency Library isn’t relying on CDL legal doctrine, according to a frequently asked questions page. “This library is being mobilized in response to a global pandemic and US national emergency,” reads the page. “We believe this is an extraordinary moment in time that requires assistance at a scale that we are able to provide.” Effectively, it sounds like the Internet Archive and libraries have built a uniquely massive repository of books, and in a moment of crisis, they’re prioritizing accessibility over nailing down a legal argument.

Ebook “lending” limits are an artificial barrier shaped by copyright law, and the pandemic has rendered lots of supposedly hard-and-fast limits suddenly flexible. Internet service providers, for example, can survive just fine without their long-cherished data caps. And after years of haggling over funds for vital services like healthcare and welfare, Congress approved a $2 trillion bailout in a matter of days. (How? By simply making the money printer go “brrr,” according to one popular meme.)

But this system affects individual authors who had little input on the decision, not governments or shareholders. Readers are flocking to popular recent titles that libraries do stock as official ebooks — which help writers get paid, although they also let publishers place draconian limits on lending. While there’s copy protection on the Emergency Library’s books, the unlimited checkout system still works a lot like ebook piracy — even if the goals and methods are different.

So the National Emergency Library raises a familiar set of tradeoffs. Some people (and libraries) can’t afford to buy ebooks, especially during the pandemic, and the Internet Archive is helping them access important resources. Some people might check out free copies of books they’d never buy, then become longtime fans of an author, creating a win-win situation for everyone. The Internet Archive encourages people to buy books if they can afford them. But anecdotally, authors complain that free online scans have damaged sales and sabotaged future publishing deals — and right now, the book world’s future looks particularly grim.