On March 24, 2020, the Internet Archive announced that it would create a National Emergency Library offering no-waitlist borrowing of all of the books in its collection. In effect, this allowed unlimited, if temporary, downloads of copyrighted works. The National Emergency Library was presented as a response to the current national and global public health crisis; however, nothing in either the Copyright Act, 17 U.S.C. § 108 or the aspirational documents of ControlledDigitalLending.org provides a legal basis for a library to lend out more copies of a work at one time than it actually owns. Nor does the case law support an “emergency exception” to copyright law.
The only possible legal justification for no-waitlist lending is fair use under 17 U.S.C. § 107. This Article discusses the statutory and case law governing online libraries, with special attention to two related cases on fair use and online libraries: Authors Guild, Inc. v. HathiTrust and Authors Guild, Inc. v. Google, Inc. Ultimately neither the case law nor the language of the statute itself supports the National Emergency Library’s no-waitlist policy, and this Article concludes that no-waitlist e-book lending is, at least in the case of copyrighted works otherwise readily available and whose authors have not granted permission for the copying, in violation of the Copyright Act.
THE INTERNET ARCHIVE’S NATIONAL EMERGENCY LIBRARY: IS THERE AN EMERGENCY FAIR USE SUPERPOWER?,
Nw. J. Tech. & Intell. Prop.