National Emergency Library

» see archive.org as it lived, on the wayback machine

~ the last words ~

The Internet Archive had been lending scanned books since 2011 under a rule it called controlled digital lending. It owned a physical copy and it lent one digital copy at a time, with everybody else in a queue. On 24 March 2020, with American schools and public libraries shut, it took the queue off. Any number of people could now borrow the same scan simultaneously, across a collection of 1.4 million books, and the Archive gave the arrangement a name that sounded like it had come from a government agency.

The terms were published the same day. The suspension would run through 30 June 2020 or until the end of the US national emergency, whichever came later, and rights holders could ask for their titles to be pulled. Brewster Kahle, who founded the Archive, wrote that this was "our dream for the original Internet coming to life: the Library at everyone's fingertips." The Authors Guild called it piracy inside a week. The Association of American Publishers noted that only thirteen public libraries in the entire United States had ever cooperated with the Open Library program it was built on.

On 1 June, Hachette Book Group, HarperCollins, John Wiley and Penguin Random House filed suit in the Southern District of New York. Nine days later Kahle posted the closing notice, moving the end from 30 June forward to 16 June, and he gave the arithmetic without decoration: "We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic." The library had been open for twelve weeks.

~ the record ~

~ the twelve weeks ~

What people did with it was less dramatic than either side's filings. Kahle's own account was that the vast majority of readers kept a digitized book open for a very short time, which is what you do with an assigned chapter rather than with a novel you intend to keep. The collection skewed old, because the scanning had worked through library shelves rather than through bestseller lists, and the part of it anyone was fighting over was a thin slice at the recent end.

The emergency in the title was American, and the shelves behind it were American, but none of the lending was geographic. A reader in Ankara could open the same scan as a reader in Ohio, with the same absence of a queue in front of it. That was either the entire point of a digital library or the entire problem with one, depending on which filing you read.

~ the lawsuit that outlived it ~

Shutting the library down changed nothing about the case. Judge John G. Koeltl granted summary judgment to the publishers on 24 March 2023, three years to the day after the National Emergency Library opened, finding that scanning a book and lending the scan produced a derivative work rather than a transformative one and that fair use did not reach it. A Second Circuit panel affirmed in September 2024. In December 2024 the Archive said it was not taking the matter further.

The Archive puts the resulting removals at more than half a million books out of its lending library. Controlled digital lending as a practice did not end, but it now operates inside a federal appellate opinion instead of inside an argument librarians were having among themselves.

~ what it cost ~

Almost every page on this site exists because the Internet Archive kept a copy of something nobody else kept. The research here runs on the Wayback Machine, on the last capture of a homepage that stopped answering in 2008, and that habit is only available because one organization decided that making copies was worth the legal exposure. Twelve weeks in 2020 is where it found the edge of that.

The Archive is still here. The book case never touched the web crawl.

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