“Over the past month, we have seen considerable outrage and excitement over the Internet Archive’s National Emergency Library, an online source of 1.4 million books that are free to borrow with no waiting list.
Chairman of the Senate Intellectual Property Subcommittee Thom Tillis (R-NC) sent a letter to Brewster Khale, founder of the Internet Archive (IA), expressing his concern that the National Emergency Library (NEL) is acting outside the boundaries of copyright law, noting that he is unaware “of any measure…that permits a user of copyrighted works to unilaterally create an emergency copyright act.”
Given the legal, economic, and societal implications of the NEL, it’s worth taking the time to address some of the criticisms of this project. In general, while the NEL’s legal status is unclear (even more so than the open library that came before it), it is a necessary balance against the closure of brick-and-mortar libraries around the country, with uncertain costs to artists and clear public health benefits….
The strongest case against the NEL is that by providing books for free, it deprives rights holders (a group that includes publishers, not just authors) revenue they expected. This has been melodramatically equated with looting after a hurricane, but that just isn’t the case. The nonrivalrous nature of ideal objects makes it such that the consumption by one doesn’t prevent another from doing the same. This is a false equivalence, plain and simple, and those who use this analogy do not deserve the moral high ground they seek.
The category error in the treatment of ideal objects as property, however, does not invalidate the need for copyrights and patents. The potential for free-riding to deter investment in the production of creative works is real (though overstated), and requires some form of government intervention to address.
At the same time, not every act of infringement equates to a loss to the rights holder (who is in many cases not the author). If the goal of NEL’s critics is to protect the ability of artists to earn a livelihood, it is a noble one, but also does not require an unqualified condemnation of NEL….”