Last week, in response to the COVID-19 pandemic, the Internet Archive launched the National Emergency Library, a digital collection of 1.4 million books that can be accessed by unlimited users for free.  However, despite the decidedly noble mission, some authors and their advocates are bemoaning the potential negative consequences such a project may have on struggling authors who rely on copyright protection.  We, like many in the art world, will be paying attention to how this tension plays out, because copyright issues—regardless of genre—often have important implications for all art mediums.
 
History of Copyright Litigation Over Digital Books
 
Digital books are not new technology, and they have spawned legal disputes for years.  A few years ago, we covered the litigation against Google Books (see here and here) commenced by the Authors’ Guild, a professional organization of writers advocating for the rights of authors to, among other things, receive fair compensation for their work.  The Guild challenged a massive initiative by Google to scan, digitize, index, and make publicly available short “snippets” of millions of books.  The case resulted in a loss for the authors; the Second Circuit upheld a decision by the Southern District of New York that Google’s project constituted “fair use,” a long-recognized defense to copyright infringement.
  
The National Emergency Library
 
The Internet Archive describes itself as a non-profit digital library. It spearheads many different initiatives for making digital resources available to the public, including the Wayback Machine, which maintains archived versions of web pages.  Since about 2005, the Internet Archive has been digitizing and providing access to many books through Open Library, an online platform that allows users to electronically “check out” a book when it is not in use by another user.  This concept is called “Controlled Digital Lending,” a practice that many libraries have adopted on the theory that it is fair use “to scan or obtain scans of physical books that they own and loan those books through e-lending technologies, provided they apply certain restrictions akin to physical library loans,” such as restrictions on the loan period and on the number of people who can access the file at one time.  But authors’ groups have long expressed concerns that Open Library, which also allows users to upload their own personal scans of books to the archive, and which (unlike most physical libraries) does not obtain licenses from publishers for the e-books they lend (instead relying on donated or purchased books or copies it acquires through collaborations with physical libraries), is not participating in controlled digital lending in the way it was originally conceived, and is violating copyright laws.
 
Now, in response to a global pandemic that has resulted in many people being homebound, the Internet Archive has gone a step further, suspending waitlists in order to “put books in the hands of people who need them, supporting emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries are closed.”  It calls this initiative the National Emergency Library.  What this means, in practice, is that an unlimited number of users can check out a single book simultaneously.  
 
Now, the Authors’ Guild is reprising many of its argument from the Google Books litigation, urging that this type of project will “push copyright law further out to the edges, and in doing so, harm authors, many of whom are already struggling.”  In response, the Internet Archive has defended itself, emphasizing that it believes its actions constitute fair use, and noting that this extended access is intended to be temporary, and that authors may opt out.
 
Potential for the Expansion of “Fair Use” During a National Emergency?
 
While this new development has not yet resulted in litigation, it will likely fuel the ongoing debate about the weight and interpretation of the statutory factors that are considered when applying the “fair use” doctrine. 
 
In addition to the Google Books litigation, we cover fair use disputes fairly regularly on this blog (see here for some examples). This is because fair use is an important defense to copyright infringement, and in the visual arts space, it is a key principle that allows artists to experiment with and build on the works of others—to a point.  Fair use is a foundation for art ranging from collage art to appropriation art to parody, but it is also a nuanced and difficult legal concept for artists, lawyers, and judges to apply.
 
The Fair Use doctrine, codified at 17 U.S.C. § 107 (see here), provides that fair use of a copyrighted work is not an infringement on that copyright, and enumerates four non-exclusive factors that should be considered by courts in determining whether something constitutes fair use.  The first factor contemplates “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”  While courts generally weigh all of the factors in determining whether a project constitutes fair use, there does seem to be an emphasis on certain public benefits in this analysis.  For instance, in the Google Books District Court decision, Judge Chin explains in connection with the first factor that “even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes,” which weighs in favor of finding fair use.  Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282, 292 (S.D.N.Y. 2013).  The Court goes on to discuss the numerous public benefits provided by the Google Books project—creating novel research tools and abilities, facilitating global access to knowledge, and preserving forgotten materials.  And the Second Circuit thereafter emphasized that “the ultimate, primary intended beneficiary [of copyright] is the public.”  Authors Guild v. Google, Inc., 804 F.3d 202, 212 (2d Cir. 2015).  
 
In other words, the fair use analysis takes into account the public interest.  So in a time where the public is facing unprecedented barriers to access—most physical locations of libraries and educational institutions are closed—and with many of these systems moving online, it will be interesting to see whether any additional weight will be assigned to the public benefit analysis in determining whether new solutions to these problems constitute fair use of copyrighted material.  And of course, we and the rest of the visual arts community will continue to watch for any emerging litigation that might add to the ongoing conversation about fair use.