In late March the library world was excited to see the Internet Archive throw open its collection of scanned books to create the National Emergency Library (NEL), a response to the COVID-19 epidemic’s shuttering the nation’s brick-and-mortar libraries. The Archive holds more than 20 million digitized books; in ordinary times, 1.3 million of these books are available to be borrowed by one user at a time (a considered and legally vetted strategy known as controlled digital lending or CDL) through the Open Library project. For the NEL, however, the Archive decided to dispense with waiting lists and single-user strictures.

This was a boon for many, many book-starved, home-bound readers, including academics. Here at the Graduate Center, we were able to fill many patrons’ e-book search requests with material from the NEL.

When it instituted the NEL, the Archive stated that the initiative would be ongoing until June 30 or until the COVID crisis was over, whichever was later. Alas, though the national emergency is far from over, the National Emergency Library is coming to an early end. Facing a lawsuit from a collection of publishers, the Internet Archive will close the NEL today, June 16, and revert to its previous controlled digital lending.

The publishers’ lawsuit, however, is not limited to the National Emergency Library and has not, as of this moment, been withdrawn. The suit names not only the NEL but also the Open Library, the Internet Archive’s ongoing book lending project, taking aim at the practice of controlled digital lending itself—and that could spell trouble for a number of digital knowledge-sharing initiatives, including HathiTrust’s Emergency Temporary Access Service.

Controlled digital lending is a practice that has been developed to satisfy the four chief tenets defining fair use, making it (arguably) legal for organizations to lend digital copies of books.

Under CDL, a lending institution makes a digital version of a book that it owns in physical form, usually by scanning. It then lends that version instead of the physical book, not in addition to it. The term of the loan is limited, as with real-world library loans, and the digitized book is given technological restrictions on copying or further distribution. These strictures bring CDL into compliance with those four factors that help determine fair use, as follows:

1. the purpose and character of the use: The loan is made without commercial or financial benefit to the lender. It’s even better if the purpose is education or scholarship.
2. the nature of the copyrighted work: While there is no hard-and-fast rule, lending nonfiction is more likely to be considered fair use than, say, contemporary popular fiction.
3. the amount and sustainability of the portion used: Here CDL institutions can point to the fact that access to these books is for limited periods and to one user at a time.
4. the market effect: Much CDL is limited to books that are not published in an e-book form, which helps satisfy this requirement. A publisher or author can hardly claim that they’ve lost revenue when the original book was purchased at market value, and an e-version of the book is not available to be sold.

All this seems legally sound, but it hasn’t actually been tested in court. This lawsuit against the Internet Archive and the Open Library is a direct challenge to the concept of CDL. The National Emergency Library assumed a significant risk by not limiting lending to one user at a time; that was calculated, certainly, as necessary given the extraordinary circumstances. What the Internet Archive did was brave and has been lauded and supported by libraries and readers worldwide, but it did bring the attention of the corporate publishing industry to all the digital lending it doesn’t control, and that could end up being catastrophic.

The Internet Archive shut down the NEL in the hope that the publishers will drop their lawsuit. If that happens, everyone who benefits from CDL can breathe a sigh of relief. If not? Then there will be a battle for access to many materials that are otherwise unavailable, and everyone who believes in expanding the availability of information resources will have a job to do.

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