Brian L. Frye, Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law in Lexington, Kentucky, discusses recent copyright issues with online library lending during the pandemic...
The coronavirus epidemic has upended every aspect of our lives. For weeks, people have been stuck at home, unable to go to their jobs, see their friends, run errands, or even go outside. Most businesses are closed or offer only very limited service. The same is true of public services, some of which are limited, and others are suspended.
Libraries are no exception. Like most other government services, public libraries are closed and can offer only very limited access via digital borrowing. And research libraries are inaccessible, except for their online collections.
In response, the Internet Archive created the National Emergency Library, an online library of books in its collection that people could “borrow” for limited periods of time. All of the books included were more than 5 years old, and copyright owners could opt out on demand. The idea was to ensure that people had at least some access to books that were otherwise unavailable.
The evidence shows that people used the online library the same way they use a physical library. Most people used the books for a few minutes, long enough to confirm a fact or check a citation. A few people used the books for longer, presumably in order to read them.
What a success! In a time of need, a charitable organization made information available to people who otherwise wouldn’t be able to get it, at no cost to anyone. Sometimes, charitable organizations really can solve social problems efficiently and effectively.
But wait. The copyright cops went apoplectic. On their telling, the Internet Archive is a “piracy” organization, and the NEL is “cheating” authors by “defrauding” them of book sales. Essentially, they complained that the NEL was “anti-author” because it enabled people to borrow books electronically, rather than buying them. Every borrowed book was a lost sale, at least in their imagination. And they further imagined that the profits from those supposed lost sales would otherwise have gone to authors.
And on Monday, June 1, a group of book publishers sued the Internet Archive for copyright infringement, alleging that the NEL was hurting authors – and more importantly, of course, hurting publishers – by allowing people stuck at home to read books without paying for them. The sanctimony of the complaint would be comical if it weren’t in deadly earnest. Among other things, it claims that “education” is “a primary mission and market” of publishers and that publishers “act as leading defenders of free speech, promoters of literary and scientific knowledge, and creators of the stories people thrive on.” Their generosity is overwhelming.
Of course, it is all nonsense on stilts. The overwhelming majority of books provided by the NEL no longer had any commercial value, and in any case, copyright owners could easily opt-out. Most authors and publishers were unaffected because they didn’t expect to make any more money from those books anyway. All the NEL really did was make books accessible to people who needed them, when other avenues were unavailable.
Why did the copyright cops really object to the NEL? On “principle.” And what was that principle? The deeply-held belief – no, the quasi-religious faith – that consumers shouldn’t have access to literary works unless they pay for it. The people complaining about the NEL didn’t point to actual lost sales. Hell, they couldn’t, there probably weren’t any. They objected to the very idea of a convenient virtual library.
Or rather, they objected to libraries, full stop. The copyright cops’ response to the NEL reflects profound hostility to the very concept of libraries. As Mike Masnick and others have observed, if libraries didn’t exist, copyright owners would scream bloody murder if anyone tried to create one.
Obviously, the copyright cops couldn’t come right out and object to libraries directly. After all, everyone loves libraries, especially the people who love and identify with authors. And the hoary “incentives” argument that copyright owners love so well is pretty hard to levy against libraries, given that they predate copyright itself, and don’t seem to have reduced anyone’s incentive to write.
But the arguments the copyright cops made against the NEL apply to every library. The entire purpose of a library is to enable people to use books without buying them. Of course, the copyright cops tried to wriggle out of the uncomfortable implications of their argument by insisting that the statutory exceptions protecting physical libraries don’t apply to virtual libraries. True, as far as it goes. But so what? And why not.
A peculiarity of the Copyright Act is that the sections granting exclusive rights to copyright owners are written generally, so they automatically apply to new media and new technologies. By contrast, the exceptions, including the library exceptions, are drafted specifically, so new media and new technologies require a new exception. But why?
At least, in theory, copyright policy balances the legitimate interests of copyright owners and consumers. The exceptions to the exclusive rights of copyright owners are part of that balancing. But in practice, when the exclusive rights of copyright owners expand into a new medium or technology, the exceptions don’t always come along with them. They should. If physical libraries can lend books without legal hassles, virtual libraries should be able to do the same. Especially when consumers really need them.
Ultimately, this entire episode exposes copyright owners for what they really are: literary landlords. By their own insistence, copyright is a form of property. They make money by selling or renting copies of their literary property to people who want to read it. And they want to extract every penny of rent they possibly can.
There is nothing wrong with being a landlord, and there is nothing wrong with collecting rent. But there is nothing particularly special or morally compelling about it, either. If copyright owners want to complain about the NEL, let them do it as landlords, and let us see their arguments as landlord arguments. After all, unlike real landlords, they aren’t even objecting to the loss of actual income on a property they are maintaining. Literary landlords object to the possibility they might not collect every possible rent on a literary property they created or purchased long ago. Maybe we should feel sorry for them? I will confess, my sympathy is limited.
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Brian L. Frye is Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law. His scholarship focuses on intellectual property and legal history, especially in relation to artists and arts organizations. He is also an artist, whose films have shown at many museums, including the Whitney Museum of American Art.
Suggested citation: Brian L. Frye, Libraries Are Not a Crime, JURIST – Academic Commentary, August 5, 2020, https://www.jurist.org/commentary/2020/08/brian-frye-libraries-not-a-crime/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org.
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.