Trust, Unity, and Ebooks

by Sarah Lamdan and Jennie Rose Halperin

Hachette v Internet Archive is a lawsuit that was filed in the summer of 2020 against the Internet Archive by a group of four big publishers after the Archive created the National Emergency Library (NEL) to support readers during the early months of the pandemic. The Archive closed the NEL in response to the lawsuit but the publishers refused to stand down, even though most of the NEL books were already in the public domain. In March 2023, the District Court ruled against the Archive, forcing it to delete a large number of ebooks from its online library. The Internet Archive is in the process of appealing that decision; the U.S. Court of Appeals in New York heard oral arguments on June 28. 

Jennie Rose Halperin and Sarah Lamdan got together to talk over recent developments in this landmark digital copyright case.  

Jennie Rose Halperin: At the start of the pandemic, I was the outreach librarian at Harvard Law School. In mid March, the library closed with no warning, ostensibly for a few weeks. We had to scramble to ensure that student access to course reserves materials was not interrupted. Many of these materials were only available in print, or subject to very expensive digital licenses. A number of my colleagues were hauling themselves to Cambridge every day to scan and upload hundreds of books to a server, all tracked by a massive Google spreadsheet. In those first uncertain weeks, these people felt like they were risking their lives in order to get to work. Eighty-five percent of American libraries were closed. There were robust conversations on Twitter about whether or not librarians were essential workers and #ProtectLibraryWorkers became a rallying cry for the field. There was a document going around called “Vendor Love in the Time of COVID-19.” Which feels naive now. Almost all of these resources were locked down for paying subscribers within a few months of the compilation of that list. 

The National Emergency Library was around for barely two months; it opened in March and closed in June. It had always been planned as a temporary collection, and the overreaction by publishers—who claimed that loaning PDF scans of mostly out of print books was providing unlawful access, and somehow taking food out of authors’ mouths—was disingenuous and in bad faith. And that bad faith continues. A few months ago, publishers’ trade lobbyists came after eighteen librarians who’d spent over two years creating a technical standard for digital lending. With all that’s going on with intellectual freedom in this country, which should concern all book people, this is what they’re spending their time fighting us on?

Sarah Lamdan: When it comes to copyright and ebooks, there seems to be a lack of trust and unity between publishers and digital media providers. In an ideal world, the entities that provide digital information access would be able to build a workable digital copyright system that allows easy, affordable access to information while also ensuring that publishers and the creators they represent get paid. Court skirmishes like Hachette v. Internet Archive make it even harder for publishers and librarians to work together. The lawsuit pits the information providers against each other, even though they technically want, or should want, the same thing: people to see, read, and hear the creations they make available.

My main concern with this case isn’t with who was right or wrong in this weird, global-pandemic world of book access. It’s how the case could impact libraries. It would be a mistake to let the Internet Archive’s decisions affect how libraries have been implementing fair use rules for decades. Libraries depend on the protections of fair use to carry out their work, and have consistently acted in good faith, working with publishers to provide digital resources to their patrons for decades. It would be a shame to upend this partnership over something one organization decided to do during an unprecedented international disaster.