Let's Not Let Covid-19 Kill Copyright

While COVID-19 has exacted a heavy toll on millions of people around the globe, it’s also inspired the generosity of millions more.  Bars, fashion designers, and even tech companies like Apple are stepping up to the plate to manufacture and donate hand sanitizer and personal protective equipment to doctors, nurses, and others in need.  The response of artists and entertainers is just as inspiring, with creative legend Andrew Lloyd Webber releasing free weekly Broadway shows on YouTube, and sports leagues like the NFL offering the public free, unlimited access to a treasure trove of decades of content.

Sometimes, though, sharing goes too far—particularly when the “generosity” is compelled is by a third party and thus isn’t so generous.  Case in point: the Internet Archive, an online “non-profit library of millions of free books, movies, software, music, websites, and more.”  Founded in 1996, the Internet Archive offers many valuable services.  Perhaps its marquee feature is the “Wayback Machine,” which allows users to search for prior, archived versions of websites.  It also has a more traditional “library” component.

Until recently, the Internet Archive’s library services operated much those of a physical library. It had a fixed inventory of titles—some with one copy, others with multiple copies.  A user could check out a title if there was a copy available for a fixed time period.  If no copies of the book were available, the user could sign up for a waiting list until a copy was returned and became available.

Under this system, a user had various means of obtaining a copy of a book.  She could borrow the book from the Internet Archive.  She could borrow the book from a local library or a friend.  Or she could purchase the book from a physical bookstore or an online bookstore such as Amazon.

Each of these means insured not only that the user could obtain a book, but also that the author—and other copyright holders—of the book were compensated for the copies of the book. 

Books and other works are costly to create.  Authors and artists rely on a system of copyrights to be compensated, at least partially, for the fruits of their labor.  Remove the copyright compensation, and authors and artists are deprived of much of the income, incentive, and ability necessary to create works.

Although a few authors and artists like Mr. Webber are wealthy, the reality is that most are not.  The label “starving” is often applied to authors and artists without the slightest hint of irony.  In 2020, the median yearly income for a full-time writer fell below the federal poverty line for a family of three.

Because of the COVID-19 pandemic, most libraries are now, at least temporarily, closed.   Readers are not, however, without books.  There are many lawful ways of obtaining books both by purchase and borrowing even when libraries are closed.  Indeed some libraries now offer access to a finite online catalog of audiobooks and e-books, similar to how a physical collection would function.

But the Internet Archive sees things differently.  It now claims it need not purchase additional copies of books to expand the inventory available to its users.   Instead, it simply makes additional, unlimited copies without permission—a clear violation of copyright law.

Not surprisingly, the Authors Guild and others have cried foul.  And intellectual property expert Steven Tepp has written extensively about the untenable copyright position of the Internet Archive.

The Internet Archive disputes the breach of law.  In a letter to Senator Tillis, Chairman of the Intellectual Property Subcommittee of the Senate Judiciary Committee, Brewster Kahle, founder of the Internet Archiveopines: “[T]he fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances.”

But neither the Fair Use Doctrine nor any other aspect of copyright law gives libraries the authority to copy other people’s works and give it away.  That’s not “flexibility”; it’s piracy, plain and simple.  If limitless copying was legal as asserted by the Internet Archive, libraries would be filled with pirated copies of books, rather than legitimate ones.

Authors and artists enrich our lives by creating works of art.  Stealing their works without compensation not only harms them, but also a society at large that will consequently enjoy fewer of their works.  That theft is particularly cruel at this moment, as economically depressed consumers are cutting back on non-essential purchases, including entertainment.

The COVID-19 pandemic threatens the health of practically everyone, but it need not threaten the legal foundations of society.  And it need not threaten the legal protections of “starving” artists and authors who depend at least partly on copyrights for income. 

Simply put, we cannot let COVID-19 kill copyright.