Internet Archive ends “emergency library” early to appease publishers

The Internet Archive has ended its National Emergency Library programs two weeks earlier than originally scheduled, the organization announced in a Wednesday blog post.

“We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic,” the group wrote. The online library called on publishers to “call off their costly assault.”

But that doesn’t seem very likely. The Internet Archive isn’t ending its online book lending program altogether. Instead, the group is returning to a “controlled digital lending” (CDL) model that it had followed for almost a decade prior to March. Under that model, the group allows only one patron to digitally “check out” a book for each physical copy the library has in stock. If more people want to read a book than are physically available, patrons are added to a waiting list until someone checks the book back in.

In March, the Internet Archive temporarily dispensed with that limit, allowing an unlimited number of people to read the same book. The online library argued that this move was necessary—and legally justified—because the pandemic was denying the public access to millions of books that are locked in closed libraries.

Experts have told Ars that the CDL concept has a better chance of winning approval from the courts than the “emergency library” idea with unlimited downloads. But the legality of CDL is far from clear. Some libraries have been practicing it for several years without legal problems. But publishers and authors’ rights groups have never conceded its legality, and the issue hasn’t been tested in court.

If the publishers dropped their lawsuit now, they would be tacitly conceding the legality of CDL and potentially endangering the revenues they currently earn from licensing e-books to libraries for digital checkout. Also, the Internet Archive’s decision to stop its emergency lending now is unlikely to protect it from liability for lending it has done over the last three months.

A win for the publishers could easily bankrupt the Internet Archive. Copyright law allows statutory damages for willful infringement to go as high as $150,000 per work, and the Internet Archive has scanned 1.4 million works and offered them for online download. So the Internet Archive could easily face damages in the billions of dollars if it loses the lawsuit. That’s far beyond the group’s ability to pay.

That would be a significant concern because the Internet Archive holds a wide range of less controversial content in addition to scanned books. The Internet Archive is probably best known for its Internet Wayback machine, an archive of the Web dating back to the 1990s. A win for the publishers could jeopardize the continued operation of these other archival activities.