David Leonard is the President of Boston Public Library.  He and his library have endorsed the Internet Archive’s creation of a so-called “National Emergency Library.”  The Library will make available copies of 1.4 million books without permission or compensation to the authors. Forget the nonsense about “eliminating waitlists” that’s a not very clever way of trying to hide the fact they want to make unlimited copies of authors’ works with no permission or royalties.

My take on this is it’s an opportunist attempt by anti-copyright ideologues backed by Silicon Valley firms to exploit the COVID-19 crisis.  It honestly makes me sick to my stomach that Americans would treat their fellow countrymen this way in a crisis.  However, I am not surprised.  The Internet Archive has long been Google’s lapdog. Shameless corporate shills, no one should be surprised to discover they are disgusting opportunists. Brewster Kahle the founder of the Internet Archive is just another Silicon Calley scammer, posing as a selfless warrior for the public good. Meanwhile, he is sitting on over 100 million dollars in his related Kahle-Austin Foundation. Who gave him that much money? What on earth did he do to make himself that rich? I mean aside from policy washing for Silicon Valley billionaires.

However I was frankly surprised to see Boston Public Library President David Leonard sign on to support this dubious endeavor.  I’ve had a couple email conversations with him, and although I don’t agree with many of his copyright positions, I found him intelligent and willing to engage in a polite manner.  He doesn’t seem like the kind of person that would get involved in this sort of sketchy policy washing by Silicon Valley elite.  Nor does he seem like the type of person to exploit a crisis the way the Brewster Kahle might.  Perhaps I’m missing something here. Therefore I have chosen to direct my questions about the “Emergency National Library” to Mr. Leonard as he has been reliable and helpful in the past.

Questions for David Leonard President of Boston Public Library

Q1. How is this fair use? It seems to fail on all four elements.  The entire work is copied. HIghly unique fictional works copied. It competes directly with/is identical to commercially licensed royalty generating services.  Technically Internet Archive is a non-profit but in 2017 it took in 17 million in grants and donations. Board members receive six-figure salaries. The closely related Kahle Austin Foundation is sitting on $109 million dollars. Hardly a neighborhood branch library or storefront church. 

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Q2. If you believe that distributing these authors’ books without permission and compensation is “fair use” why doesn’t the Boston Public Library directly digitally distribute these books instead of relying on the Internet Archive?  Is this a sign that the Boston Public Libary finds the fair use claim dubious and wants to avoid litigation?

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Q3. The statement makes the argument that the “National Emergency Library” is fair use because this is a national emergency. The statement proposes a time limit on how long this permissionless royalty-free lending will go on further emphasizing this is “temporary” fair use.  Under US copyright law or jurisprudence, how does something become fair use in an emergency when it is not normally fair use? 

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Q.4 If this is legitimate fair use why are authors allowed to opt-out?  Again why shouldn’t we read this as an admission this is a dubious and opportunistic endeavor likely to end in litigation?

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Q.4 If most poor students are unlikely to have high-speed internet access at home how does this help them? Doesn’t this disproportionately benefit wealthier families?

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Q.5 Are you personally still receiving a salary from Boston Public Library during this crisis? It seems to me most people who signed the letter are probably still receiving their salary. Why should authors that on average make $20k a year be forced to carry the entire financial burden of the National Emergency Library? To show good faith would you agree to forgo say 1/2 your salary till this crisis is over?

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Q.6 Fair use is a North American only legal concept.  With a few exceptions, it is not an available defense in the rest of the world. We tested the National Emergency Library in a number of jurisdictions. It appears to be available globally. How is the library legal in say Germany, Japan, Sweden or France?  By endorsing, publicizing and linking to it aren’t you breaking the law in many of these countries?

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Q.7 Have you or any of the cosigners considered you are advocating the violation of a number of our obligations under intellectual property and trade treaties?  Ultimately the US taxpayer or US businesses would end up paying the penalties (See penalties applied to the US for Fairness in Music Licensing Act). How is that fair?

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Q.8 The 2008 Higher Education Opportunity Act puts strict obligations on institutions that receive federal financial aid to actively discourage copyright infringement.  Now it seems we have dozens of university libraries seemingly encouraging copyright infringement.  Do you think this is wise? Some jackass like me could file a complaint with the Department of Education that they would be obliged to investigate.  Thoughts?

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Q.9 How committed to this cause are you? Will, you use city resources to defend Internet Archive in the event of legal action by authors?  For instance by filing amici curiae? If so how will Boston or Massachuesettes taxpayers benefit? 

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Q.10  Will BPL receive stimulus funds from the federal government? If so will you be devoting any of these funds to help poor students without access to books? Can you detail these efforts? Show authors you are just as committed to spending your funds as you are to giving away their work? 

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Q.11  Professor Devlin Hartline at GMU Law commented on twitter that Internet Archive is “literally committing criminal copyright infringement under Section 506(a)(1)(B).”  He tweeted that at the DOJ. Hartline is not a bomb-thrower like me.  He’s normally pretty reserved.  Does this give you pause? Does this make you rethink your endorsement? 

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Q.12 It’s obvious that this campaign and document were professionally organized. Can you tell us who led this effort? Who came up with the idea? 

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We hope to hear from you soon.  We will publish your reply completely unedited.  Thanks for indulging us.