Skip to main content

Literary Landlords in Plaguetime

Brian L. Frye

The coronavirus pandemic has affected our lives in countless ways. One of those unfortunate effects was the unavoidable closure of public libraries. Many people rely on public libraries for many different things including free access to books. When public libraries closed, many people lost access to books, especially new books.

In response, the Internet Archive created the National Emergency Library, a collection of PDF scans of books that people could access on the internet. Of course, the NEL isn't a perfect solution. In order to avoid copyright concerns, it only includes books published more than 5 years ago, because they are unlikely to have significant commercial value. Moreover, PDFs are both less convenient and less accessible than ebooks and physical books.

Still, something is better than nothing. You would think everyone would applaud this heroic effort by a charitable organization to provide access to information during a national emergency to underserved populations. You would be wrong.

When the Internet Archive announced the NEL, authors and publishers went apoplectic. Publishers immediately denounced it as willful copyright infringement. And many authors followed suit, whining that the Internet Archive was a "piracy organization" intent on depriving them of their rights. Oh, and their profits, of course.

Notably, there is no evidence that the NEL has impacted on anyone's profits. On the contrary, it seems that most patrons view the PDFs only briefly, much like patrons at any other public library.

Publishers and authors really object to the mere possibility that the NEL might decrease their profits on the margins, if someone decides to consult a book in the library for free, rather than buying it. Of course that's true of every library. But the NEL makes it more convenient, because you can do it from home, or anywhere.

In any case, on June 1, a group of publishers sued the Internet Archive for copyright infringement. What does it mean?

Since time immemorial, authors and publishers have insisted that copyright is a kind of property, entitled to protection and respect, just like any other kind of property. In the 19th century, authors like Balzac and Mark Twain argued that copyright is a natural right that should exist in perpetuity. And who could forget the Motion Picture Association of America's infamous 2004 anti-piracy PSA?

There are many good reasons to object to this property metaphor, not least that intangible works of authorship are non-rival, so the scarcity problem of physical property doesn't exist. But nevermind, for the sake of the argument, what does the property metaphor imply? Copyright owners are just landlords, like any other property owner who collects rent on their capital investment.

There's nothing wrong with being a landlord. We need people to invest in the creation and maintenance of property. But there's nothing morally special about it, either. So when copyright owners claim about copyright infringement violating their moral rights, maybe we should say, "Ok, landlord," and take it with a grain of salt?

Brian L. Frye

Brian L. Frye is Spears-Gilbert Professor of Law at the University of Kentucky College of Law, where he teaches classes on intellectual property, copyright, trademark, nonprofit organizations, and professional responsibility. His research focuses on issues affecting artists and arts organizations, as well as legal history.