The lawsuit the Internet Archive is facing is still pretty concerning for me, and I wanted to put together my thoughts on exactly why.
The lawsuit could have been a death blow
I won’t explain the background here, but you can get the basics from this Vox article. It also explains how people have been saying that this lawsuit threatens the very existence of the Archive, but that’s not exactly true.
However, it seems the only reason it’s not an existential threat to the Archive is because of restraint on behalf of the publishers. I’m not a lawyer, but from the article it seems that if the publishers wanted to, they could push for the full $150,000 in damages for all 1.4 million books. Or at least a few hundred or thousand books, which would be enough to get into the hundreds of millions of dollars in damages. Given that the Archive’s annual operating revenue is only $19 million, it looks like this lawsuit could have bankrupted it.
It’s hard to overstate how important the Internet Archive is
That’s pretty scary for me, because I care about the Internet Archive a lot. The amount of irreplaceable human history it contains is staggering. Its Wayback Machine is its most famous project, and deservedly so. 25% of all webpages are gone within 5 years. If you’ve ever tried to look up a news article from 10 years ago, chances are the site’s response was “Huh? Oh, did you want to look at today’s front page?”. And beyond the web, the Archive is digitizing huge troves of books, records, and all manner of media that are long lost and out of print. And it stores all sorts of special collections, like classic video games and software. As more and more of the world moves to the cloud, we’re facing the prospect of a digital dark age when those sites and servers inevitably go offline.
That’s why I am so thankful that the Archive exists, and that its leadership seems intent on preserving as much human culture as possible, for the long term. There are too many web preservation projects whose structure, funding, or leadership doesn’t give much confidence that they’ll be around for the long haul. WebCite already stopped archiving due to lack of funding, and who knows how long they’ll be able to pay to keep their servers up? But the Internet Archive seems like an organization with the singular focus and guidance to become an institution that preserves history for posterity. That’s why I’ve donated more to it than any other tech organization over the years. It’s why I’ve participated in their hackathons and archiving efforts.
The Archive is on track to become one of the most important repositories of human history. The British Museum contains our ancient history, the Library of Congress has the history of the print age, and the Internet Archive preserves the digital age.*
Please don’t gamble it all
But just because it exists now doesn’t mean that history is safe. It turns out the burning of the Library of Alexandria is a myth, but if something were to happen to the Archive, it would be a reality as terrible as the legend. I want this institution to be around for generations. And for that to happen, we can’t be taking risks like the National Emergency Library.
In all my reading I haven’t come across any legal precedent that makes this move defensible in court. And as far as regular copyright laws go, this seems to be pretty clear infringement. Before this, the Archive seemed to have found a pretty nice compromise where they only lent out a limited number of copies at a time, just like a regular library. No one sued, and it seems to me a pretty legally defensible position. This is more in line with the smart way the Archive usually handles copyright. It’s technically in a legal gray area, having copied tons of other people’s works. But at least in the case of the Wayback Machine they’ve been able to avoid lawsuits by responding to individual takedown requests with a simple “yes”. They bend like a willow in the wind: remove individual items in order to preserve the rest. Normally they’re good at walking the copyright line. Which is why I’m even more baffled by the Emergency Library.
Don’t get me wrong, I’m no fan of current copyright laws. I’m happy for someone to challenge them in novel ways, but please, leave that to others like the EFF. Even if the risk posed by this lawsuit is less than it seems, it’s still too much. If this institution is going to last generations, it can’t start rolling the dice like this every few years. Eventually those odds catch up and you’ll lose. We’ll all lose. An entire period of history. Gone.
* I don’t mean to suggest the British Museum and LoC contain the majority of the history from those respective ages (and I don’t mean to condone how they may have obtained their artifacts). In fact, the Internet Archive is distinguished from the other two in that it probably does contain the majority of the preserved items from its respective age.