Protected Petabox in Internet Archive's data center (via Wikimedia Commons)

During the COVID-19 lockdown, one silver lining was the proliferation of open-access art and literature online. Despite layoffs and furloughs, newly unemployed workers could at least still engage with the latest gallery exhibitions and best-selling novels. This was especially helpful as public libraries bolstered e-book offerings despite long-term underfunding. 

Perhaps the most controversial example was the Internet Archive (IA), which expanded its Open Library to lend out e-books to anyone with internet access. The National Emergency Library carried millions of titles purchased and scanned by the Archive. Within weeks of its debut, high-profile authors and publishers were up in arms over its perceived infringement of federal copyright laws. The resulting lawsuit aims to limit IA’s access to copyrighted titles.

Much of the controversy has played out on social media, where authors labeled the Emergency Library as internet piracy threatening their well-being. Consequently, the Authors Guild and Association of American Publishers (AAP) condemned the Emergency Library as “an excuse to push copyright law further out to the edges.” The ensuing debate has been about preservation versus profit — should we rethink how art is distributed online, or do we trust that the plaintiff publishers — Hachette, HarperCollins, Wiley, and Penguin Random House — represent our best interests?

One aspect that might shed some light is the relationship between publishing and libraries. From librarians’ efforts to expand online lending to open access for the visually impaired, big publishers have lobbied government officials to prioritize intellectual property above all else. Even more recently, they required libraries to pay a premium above consumer prices for two-year licenses on e-books and lobbied Congress to kill any legislative opposition. 

The IA lawsuit, therefore, could be viewed as an attack on free and public art. On top of that, the AAP filed for summary judgment, which would effectively settle the case in their favor without a trial. Opponents of the lawsuit see this as a thinly veiled effort to consolidate power and replace ownership with licensing, making e-books a constant source of profit at libraries’ expense. As Professor Aram Sinnreich recently claimed, IA’s perceived overreach became an “opportunity to strike a much larger blow” against online lending. 

IA Policy Counsel Lila Bailey points to the titles under contestation, many of which are best sellers from high-net-worth authors, including Cecilia Ahern’s PS, I Love You (2003), Malcolm Gladwell’s Tipping Point (2000), and Sandra Cisneros’s The House on Mango Street (1983).

Rather than promoting a wider readership, Bailey claims, the AAP is reducing accessibility for everyday people.

“This lawsuit is not about authors or creators — it’s about billion-dollar corporate publishers controlling what we read, how we read, and who can read,” Bailey told Hyperallergic. “The publishers are willing to hollow out library collections for shareholder gain.”

The AAP, meanwhile, portrays IA founder Brewster Kahle as a Silicon Valley millionaire, alleging that big tech is overriding publishers’ authority. They contrast IA’s efforts with what they call “legitimate” lending practices on apps like Libby.

“Authors and other artists have the right to control their work,” AAP General Counsel Terrence Hart told Hyperallergic. “They also have a right to the fruits of their labor. [IA] has shown an utter and complete contempt for those basic rights. As the publishers’ suit and motion for summary judgment clearly show, these ongoing efforts to obliterate the basic rights of authors and other creative artists are well-funded, obviously unlawful, and clearly harmful.”

Yet, Bailey claims, the publishers’ own collecting of consumer data directly contributes to surveillance capitalism, all while evading accountability for notoriously low pay. For this reason, author Chuck Wendig, who vocally opposed IA in 2020, has since reversed his position.

“Like all libraries, we have a mission, not a business model,” Bailey said. “We don’t make money from lending books. We don’t charge for use of our library, sell user data, or advertise on our website.” 

Despite decades of internet piracy debates, online accessibility has increased the potential for less able and affluent demographics to engage with a wide range of films, albums, and books. At the same time, publishing houses and libraries ensure that marginalized authors can freely engage with art and become foremost in their field. Pitting one against the other further divides communities constantly threatened by the ascendant far right.

Perhaps the crux, then, lies in the current state of mainstream publishing. Penguin Random House, the world’s largest paperback publisher, is currently on trial for its merger with Simon & Schuster, with critics alleging it will reduce opportunities for up-and-coming authors. Rather than innovate, corporate consolidation may end up diminishing authors’ well-being. Curiously, redistributing the millions spent on lawsuits is never a proposed antidote.

Lobbying the federal government against a major repository for cultural histories — particularly at a time of book bans, vanishing film archives, and Amazon’s monopoly — sets a dangerous example for the rest of the art world, which is dominated by exploitative markets. The result of this lawsuit, therefore, could have huge implications for the future of preservation and accessibility.

Billie Anania is an editor, critic, and journalist in New York City whose work focuses on political economy in the cultural industries and the history of art in global liberation movements.