Last Tuesday we launched a National Emergency Library—1.4M digitized books available to users without a waitlist—in response to the rolling wave of school and library closures that remain in place to date. We’ve received dozens of messages of thanks from teachers and school librarians, who can now help their students access books while their schools, school libraries, and public libraries are closed.

We’ve been asked why we suspended waitlists. On March 17, the American Library Association Executive Board took the extraordinary step to recommend that the nation’s libraries close in response to the COVID-19 outbreak. In doing so, for the first time in history, the entirety of the nation’s print collection housed in libraries is now unavailable, locked away indefinitely behind closed doors.  

This is a tremendous and historic outage.  According to IMLS FY17 Public Libraries survey (the last fiscal year for which data is publicly available), in FY17 there were more than 716 million physical books in US public libraries.  Using the same data, which shows a 2-3% decline in collection holdings per year, we can estimate that public libraries have approximately 650 million books on their shelves in 2020.  Right now, today, there are 650 million books that tax-paying citizens have paid to access that are sitting on shelves in closed libraries, inaccessible to them. And that’s just in public libraries.

And so, to meet this unprecedented need at a scale never before seen, we suspended waitlists on our lending collection.  As we anticipated, critics including the Authors Guild and the Association of American Publishers have released statements (here and here) condemning the National Emergency Library and the Internet Archive.  Both statements contain falsehoods that are being spread widely online. To counter the misinformation, we are addressing the most egregious points here and have also updated our FAQs.

One of the statements suggests you’ve acquired your books illegally. Is that true?
No. The books in the National Emergency Library have been acquired through purchase or donation, just like a traditional library.  The Internet Archive preserves and digitizes the books it owns and makes those scans available for users to borrow online, normally one at a time.  That borrowing threshold has been suspended through June 30, 2020, or the end of the US national emergency.

Is the Internet Archive a library?
Yes.  The Internet Archive is a 501(c)(3) non-profit public charity and is recognized as a library by the government.

What is the legal basis for Internet Archive’s digital lending during normal times?
The concept and practice of controlled digital lending (CDL) has been around for about a decade. It is a lend-like-print system where the library loans out a digital version of a book it owns to one reader at a time, using the same technical protections that publishers use to prevent further redistribution. The legal doctrine underlying this system is fair use, as explained in the Position Statement on Controlled Digital Lending.

Does CDL violate federal law? What about appellate rulings?
No, and many copyright experts agree. CDL relies on a set of careful controls that are designed to mimic the traditional lending model of libraries. To quote from the White Paper on Controlled Digital Lending of Library Books:

“Our principal legal argument for controlled digital lending is that fair use— an “equitable rule of reason”—permits libraries to do online what they have always done with physical collections under the first sale doctrine: lend books. The first sale doctrine, codified in Section 109 of the Copyright Act, provides that anyone who legally acquires a copyrighted work from the copyright holder receives the right to sell, display, or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. This is how libraries loan books.  Additionally, fair use ultimately asks, “whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.” In this case we believe it would be. Controlled digital lending as we conceive it is premised on the idea that libraries can embrace their traditional lending role to the digital environment. The system we propose maintains the market balance long-recognized by the courts and Congress as between rightsholders and libraries, and makes it possible for libraries to fulfill their “vital function in society” by enabling the lending of books to benefit the general learning, research, and intellectual enrichment of readers by allowing them limited and controlled digital access to materials online.”

Some have argued that the ReDigi case that held that commercially reselling iTunes music files is not a fair use “precludes” CDL. This is not true, and others have argued that this case actually makes the fair use case for CDL stronger.

How is the National Emergency Library different from the Internet Archive’s normal digital lending?
Because libraries around the country and globe are closed due to the COVID-19 pandemic, Internet Archive has suspended our waitlists temporarily. This means that multiple readers can access a digital book simultaneously, yet still by borrowing the book, meaning that it is returned after 2 weeks and cannot be redistributed.  

Is the Internet Archive making these books available without restriction?
No. Readers who borrow a book from the National Emergency Library get it for only two weeks, and their access is disabled unless they check it out again. Internet Archive also uses the same technical protections that publishers use on their ebook offerings in order to prevent additional copies from being made or redistributed.

What about those who say we’re stealing from authors & publishers?
Libraries buy books or get them from donations and lend them out. This has been true and legal for centuries. The idea that this is stealing fundamentally misunderstands the role of libraries in the information ecosystem. As Professor Ariel Katz, in his paper Copyright, Exhaustion, and the Role of Libraries in the Ecosystem of Knowledgeexplains: 

“Historically, libraries predate copyright, and the institutional role of libraries and institutions of higher learning in the “promotion of science” and the “encouragement of learning” was acknowledged before legislators decided to grant authors exclusive rights in their writings. The historical precedence of libraries and the legal recognition of their public function cannot determine every contemporary copyright question, but this historical fact is not devoid of legal consequence… As long as the copyright ecosystem has a public purpose, then some of the functions that libraries perform are not only fundamental but also indispensable for attaining this purpose. Therefore, the legal rules … that allow libraries to perform these functions remain, and will continue to be, as integral to the copyright system as the copyright itself.” 

Do libraries have to ask authors or publishers to digitize their books?
No. Digitizing books to make accessible copies available to the visually impaired is explicitly allowed under 17 USC 121 in the US and around the world under the Marrakesh Treaty. Further, US courts have held that it is fair use for libraries to digitize books for various additional purposes. 

Have authors opted out?
Yes, we’ve had authors opt out.  We anticipated that would happen as well; in fact, we launched with clear instructions on how to opt out because we understand that authors and creators have been impacted by the same global pandemic that has shuttered libraries and left students without access to print books.  Our takedowns are completed quickly and the submitter is notified via email. 

Doesn’t my local library already provide access to all of these books?
No. The Internet Archive has focused our collecting on books published between the 1920s and early 2000s, the vast majority of which don’t have a commercially available ebook.  Our collection priorities have focused on the broad range of library books to support education and scholarship and have not focused on the latest best sellers that would be featured in a bookstore.

Further, there are approximately 650 million books in public libraries that are locked away and inaccessible during closures related to COVID-19.  Many of these are print books that don’t have an ebook equivalent except for the version we’ve scanned. For those books, the only way for a patron to access them while their library is closed is through our scanned copy.

I’ve looked at the books and they’re just images of the pages. I get better ebooks from my public library.
Yes, you do.  The Internet Archive takes a picture of each page of its books, and then makes those page images available in an online book reader and encrypted PDFs.  We also make encrypted EPUBs available, but they are based on uncorrected OCR, which has errors. The experience is inferior to what you’ve become accustomed to with Kindle devices.  We are making an accessible facsimile of the printed book available to users, not a high quality EPUB like you would find with a modern ebook.

What will happen after June 30 or the end of the US national emergency?
Waitlists will be suspended through June 30, 2020, or the end of the US national emergency, whichever is later.  After that, the waitlists will be reimplemented thus limiting the number of borrowable copies to those physical books owned and not being lent. 

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When Hitler ordered the destruction of Warsaw in 1944, the army tried to set the national library – the Biblioteka Narodawa – on fire, but the flames smoldered.¹ It turns out that the collected memory of a civilization is surprisingly dense and hard to burn, so a special engineering team was brought in to cut chimneys in the roof and holes in the walls so the fire could get more air. Problem solved. Museums, libraries and archives are simple places, but once the flames take hold they burn like hell.

Or sometimes they freeze: the icy cold of ignorance and neglect can be as deadly as the hot end of a torch. The last and only specimen of the fruit bat Pteropus allenorum sat preserved in a jar on a museum shelf for 153 years before it was finally studied and identified as a new species – but by then it was extinct.² The Bachman’s warbler, “famous for its unusually thrilling song,” was hurtled into extinction in 1939 when bird watchers found and proudly shot the last two of them.³ A quarter of Americans don’t believe in climate change;⁴ almost half don’t believe in evolution;⁵ a third don’t know their next-door neighbors,⁶ and while the rest of the world clamors for greater access to knowledge and literacy the UK has closed hundreds of community libraries. “Libraries that stayed open during the Blitz will be closed by budgets,” wrote Caitlin Moran, “A trillion small doors closing.”⁷ Lost opportunity kills like smoke and flame, but it’s harder to see.

Fire and frost – ignorance of science, neglect of our physical environment, and failure to cultivate human potential – we can’t afford them anymore: there is too much at stake.

Civilization requires wise and engaged citizens, and for hundreds if not thousands of years we have built and sustained museums, libraries and archives in our communities to advance this goal for our own survival – to stimulate knowledge creation and creativity; foster learning and independent thinking; support civic engagement and dialogue; encourage emotional intelligence and well-being; and to deepen our knowledge of the past and clarify our plans for the future. We need museums, libraries and archives to accomplish these tasks on a massive scale – we can’t possibly have too much success in them – but taken as a whole, our institutions, operating in their traditional ways, are a remarkably blunt instrument for spreading the enlightenment. For every person who walks through museum doors there are billions who can’t or won’t; for every item cataloged and available to library and archive patrons, millions are absent or withheld; collections that have been in the public domain for centuries are enclosed by paywalls and unnecessary restrictions; and the expertise and passion of the public lies dormant and invisible.⁸ Why?

The issue, it turns out, is not a conflict of values but of habits: old ideas about scope and scale – who has a voice, who does the work, and who gets to benefit – die hard. Like most organizations, museums, libraries and archives forged their dreams in the twentieth century when success was equated with impressive buildings full of experts, big collections and visitors through the doors. That was reality, there was no Internet yet, and one could hardly imagine any other type of measures of excellence. And the concept of a commons seems perverse and strange in that context: in the world of the bricks-and-mortar, what self-respecting museum would share its privilege and authority with the crowd, and who but barbarians would accept it? What responsible institution would relinquish control of its data and invite billions of people to collaborate, or free collections from copyright and abandon hope of squeezing profits from licensing and fees?

But even back in 1853, people like Joseph Henry, the first chief administrator of the Smithsonian Institution (now the world’s largest museum and research complex, based in Washington, DC), saw that museums, libraries and archives could accomplish great deeds in society – not by only looking inward at their own experts and collections, but by looking outward, to the imagination and energy of citizens. “The worth and importance of the Institution is not to be estimated by what it accumulates within the walls of its building,” wrote Henry, in the Smithsonian’s first annual report, “but by what it sends forth to the world.”⁹

It is a beautiful sentiment: we just lacked the means to fully realize it until now. .

The New York Public Library recently put 20,000 high-resolution public domain maps online. “What’s this all mean?” asks Matt Knutzen of the library’s map division, “It means you can have the maps, all of them if you want, for free, in high resolution. We’ve scanned them to enable their use in the broadest possible ways by the largest number of people.”¹⁰

Amsterdam’s Rijksmuseum owns some of the most priceless masterpieces in Western art, but rather than hoard them, they give them to the world. The Rijksmuseum has over 150,000 high-resolution public domain reproductions of works of art on its website, and the museum encourages and celebrates re-use of these resources through its innovative Rijksstudio project and API.¹¹“We’re a public institution,” said Taco Dibbits, the Rijksmuseum’s director of collections, “and so the art and objects we have are, in a way, everyone’s property.”¹²

Eighty-eight institutions from sixteen countries have contributed 1.3 million images to The Flickr Commons, an ongoing project to increase access to, and interaction with, public photography collections around the world. All images in the Flickr Commons are presented with “no known copyright restrictions” and are free to use for any purpose, by anyone.¹³

Europeana, a European Commission initiative to increase access to cultural resources,¹⁴ provides a single point of access to over 3.9 million public domain and CCØ public domain books, artworks, and other museum, library, and archive items from almost 400 collecting institutions.¹⁵ “Entrusted with the preservation of our shared knowledge and culture, not-for-profit memory organizations should take upon themselves a special role in the effective labeling and preserving of Public Domain works,” reads Europeana’s Public Domain Charter. “As part of this role they need to ensure that works in the Public Domain are accessible to all of society, by making them available as widely as possible.”

And the Wikimedia Commons, “a database of 22,022,531 freely usable media files to which anyone can contribute,” is perhaps the best, most used, and most productive cultural commons in the world, despite the fact – or perhaps because of the fact – that it is run not by institutions, bound by tradition, but by volunteers, inspired and empowered to take action and create value through their own efforts.¹⁶ The Wikimedia Commons provides images and other media resources for Wikipedia’s 35 million articles, and while a growing number of those resources are contributed by museums, libraries and archives, many more are contributed by individual citizens – commoners and activists – who scour the Web for relevant images and reference materials, scan pages from books, organize and execute collaborative projects, and even upload photographs from their own visits to museum and cultural sites to help improve the quality and breadth of Wikipedia articles.

Because of its foundation of free and open resources and its network of volunteers, the Wikimedia Commons operates at a magnificent, global scale – transcending professional, institutional, and national boundaries to serve over 500 million Wikipedia readers a month in 280 languages. Even the world’s greatest museums, libraries and archives cannot hope to match that reach and impact – especially if they cling to the methods and measures of the past.

The work of the world’s cultural institutions is a matter of great consequence now, as wise and engaged citizens are our best hope to quench the flames of fear and hatred and thaw the bitter cold of ignorance and neglect. And with the fire and frost upon us we have only a few moments to take action: What should we ask our museum, library, and archive institutions to do? How should they act to scale and amplify their impact in society? The commons offers the way forward.

Notes

1 | Knuth, Rebecca, Burning Books and Leveling Libraries, Praeger, 2006; and as told to the author by the library director, October 2011.

2 | Discover Magazine, “‘New’ species gather dust on museum shelves for 21 years before being described,” November 19, 2012, http://blogs.discovermagazine.com/notrocket-science/2012/11/19/new-species-gather-dust-on-museum-shelves-for-21-years-before-being-described/#.U8upGoBdUx0. (Many thanks to Dr. Elycia Wallis of Museum Victoria for sharing this story.)

3 | Bryson, Bill, A Short History of Nearly Everything, Broadway Books, 2003, p. 476.

4 | Yale Project on Climate Change Communication, “Americans’ Global Warming Beliefs and Attitudes in April 2013,” at http://environment.yale.edu/climate-communication/article/ Climate-Beliefs-April-2013#sthash.SfADnW8K.dpuf.

5 | Gallup: “In U.S., 46 Percent Hold Creationist View of Human Origins,” June 1, 2012, at http://www.gallup.com/poll/155003/Hold-Creationist-View-Human-Origins.aspx.

6 | Pew Research Internet Project, “Neighbors Online,” June 9, 2010, at http://www.pewinternet.org/2010/06/09/neighbors-online.

7 | Caitlin Moran, “Libraries, Cathedrals of Our Souls”, November 11, 2012, at http://www. huffingtonpost.com/caitlin-moran/libraries-cathedrals-of-o_b_2103362.html?ncid=edlinkusaolp 00000003&utm_hp_ref=fb&src=sp&comm_ref=false.

8 | Sanderhoff, Merete, “Common Challenges, Common Solutions,” slide 26, September 20, 2012, http://www.slideshare.net/MereteSanderhoff/common-challenges-common-solutions- okfest-20092012.

9 | Annual Report of the Board of Regents of the Smithsonian Institution for the Year 1852, Washington, DC: US Government Printing Office, 1853, via http://siarchives.si.edu/history/ exhibits/henry/joseph-henrys-life#c1.

10 | Knutzen, Matt, “Open access maps at NYPL”, March 28, 2014 http://www.nypl.org/ blog/2014/03/28/open-access-maps.

11 | https://www.rijksmuseum.nl/en and http://www.rijksmuseum.nl/en/rijksstudio.

12 | “Masterworks for One and All,” New York Times, May 29, 2014, available at http://www. nytimes.com/2013/05/29/arts/design/museums-mull-public-use-of-online-art-images.html.

13 | https://www.flickr.com/commons. Thanks to James Morley and his Flickr Commons statistics tool (http://www.whatsthatpicture.com/flickr/commons-stats.php) for the image counts.

14 | http://europeana.eu, and FAQ, http://pro.europeana.eu/europeana-faq. Thanks to James Morley and Christoph Braun for help with record counts. Europeana Public Domain Charter, http://pro.europeana.eu/c/document_library/get_file?uuid=d542819d-d169-4240-9247- f96749113eaa&groupId=10602, 2010.

15 | CCØ (“CC Zero”) is a legal deed for dedicating a work to the public domain, which existing copyright law makes no provision for doing.

16 | http://commons.wikimedia.org/wiki/Main_Page. 32 million articles is as of June, 2014, http://stats.wikimedia.org/EN/TablesWikipediaZZ.htm. Wikipedia use statistics are from the Wikimedia Foundation 2013-2014 annual report: http://wikimediafoundation.org/wiki/ Annual_Report.

Michael Peter Edson (USA) is a strategist and thought leader at the forefront of digital transformation in the cultural sector. Michael is a Presidential Distinguished Fellow at the Council for Libraries and Information Resources (USA), he serves on the OpenGLAM advisory board for Open Knowledge, and he works at the Smithsonian Institution in Washington, D.C. The opinions in this essay are his own.

Original title:  Fire and Frost: The Virtues of Treating Museums, Libraries and Archives as Commons.

Patterns of Commoning, edited by Silke Helfrich and David Bollier, is being serialized in the P2P Foundation blog. Visit the Patterns of Commoning and Commons Strategies Group websites for more resources.

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