On March 24, the Internet Archive lost the copyright lawsuit that had been brought against it by four major publishers. The group—which comprised Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House—had sued early in the pandemic, shortly after the Internet Archive opened the National Emergency Library. The NEL was described as a crisis response to a world in which teachers and students were suddenly shut out of classrooms, librarians and researchers barred from the stacks, and the public unable to access large amounts of information. Containing more than 1.4 million books, the Internet Archive’s catalogue involved taking a single physical copy of a title, digitizing it, and making it available for mass download—without authorization by the publisher and author. Prior to the pandemic, many of these books had wait lists and download limits; the NEL was a temporary suspension of those limits. The Internet Archive claimed its move was protected under the doctrine of fair use, but the court didn’t buy it.
In the literary world, the NEL was divisive from the beginning. The New Yorker sung its praises: “The National Emergency Library Is a Gift to Readers Everywhere,” read one headline. NPR also ran an admiring piece about how the NEL “lends a hand,” a position they later tempered as the criticisms began to percolate. Authors and publishers decried it as a form of piracy. The Authors Guild issued a statement saying they were “appalled” by the Internet Archive’s decision, which “trample[d] on authors’ rights by giving away their books to the world.” The publishers sued, bringing the NEL to a premature close, and three years to the day, a judge ruled in their favour. The decision’s implications, however, extend beyond the case to touch the digital rights of all libraries—and, by extension, those of authors and readers. It has a bearing on which books (and which writers) libraries deem worthy of the expense to stock in digital formats and, ultimately, how much digital information will be freely accessible.
