The Law and the Library

Gone by Christmas? Here’s the cunning plan, as outlined by National Librarian Rachel Esson in Point 10 of her Aide Memoire to the Minister of Internal Affairs on 26 July 2021:

“It is expected that the key milestones under the control of the National Library (finalising what will be transferred, packing the collection and loading it into a shipping container) will be complete by December 2021.”

Then it will be up to the vagaries of international shipping (which is currently in a state of flux) to determine when the 600,000 books in the National Library’s overseas published books collection make it to Manila to be digitised, and when (if?) they get to California to be stored – or  sold – as  the Internet Archive (IA) boss sees fit.

Book Guardians Aotearoa (BGA) sent an Official Information Act request to the Minister of Internal Affairs on 16 September 2021, asking for the exact date on which the contract with the Internet Archive to take the books was signed. Any date after 1 June 2020 (and we’re 99.9% certain that it was signed after this date) is relevant, because that is the day that the four of the world’s largest English language publishers filed suit in a US court against the Internet Archive’s Open Library, alleging extensive and damaging breaches of copyright.

Which means that a New Zealand government department has signed a contract with a foreign organisation which is facing serious accusations of illegal practice, which have yet to be be heard in court.  That would be bad if it were an innocent mistake, but since the pending court case has been public knowledge ever since it was filed over one year ago, and the court documents are accessible to anyone with a computer and an internet connection, it smacks of negligence, not error. Or possibly gross incompetence.

BGA has written to the Attorney General (David Parker) giving him the details of the court case and    expressing our concerns regarding the inadvisability of the New Zealand government sending any books to the Internet Archive until or unless the American court finds that its practice of digitising books still in copyright is legal and acceptable.

Now we find that the Internet Archive is doing all it can to delay that court case. An article in the Publishers Weekly – Publishers Blast Internet Archive’s ‘Extraordinary’ Demand for Sales Data – reported in August that the IA’s lawyers had told the court that it wanted all the sales data of all four publishers for the past decade. A reasonable request – or not? It will be up to Magistrate Judge Ona T. Wang of the US District Court to decide.

On August 12 the lawyer for the plaintiffs wrote to the judge saying: “This lawsuit involves IA’s industrial-scale copying and online distribution of Plaintiffs’ and others’ in-copyright books. IA operates an illegal ebook distribution service that threatens to destroy the legal library ebook market and otherwise harm consumer book sales if left unchecked. IA accumulates millions of hard copies of copyrighted books as cheaply as possible, scans them, and distributes digital scans of the entire book without a license to anyone in the world who signs up to IA’s website. IA argues that this is legal fair use under a manufactured theory called “controlled digital lending.”

The rest of the letter describes to the judge why the request is completely unreasonable. Not only would it be difficult and extremely expensive to fulfill, but even if achieved the results would be legally irrelevant. She therefore requests that it be denied.

While the plaintiffs await the judge’s decision, BGA will be sending a copy of the lawyer’s letter to the Attorney General, as further evidence that a New Zealand government agency should not be doing business with the IA.  We will repeat our request that he intervenes to prevent the export of the books. 

We will also let the plaintiff’s lawyer know about the contract that the National Library signed with the Internet Archive. We are pretty sure she will be as shocked by it as we are, and it certainly is further evidence for her statement to the judge, above, that “IA accumulates millions of hard copies of copyrighted books as cheaply as possible, scans them, and distributes digital scans of the entire book without a license to anyone in the world who signs up to IA’s website.”

BGA  has been informed that the New Zealand Society of Authors and the Publishers Association of New Zealand share this view of what the Internet Archive is doing. They are expressing their concerns about the National Library deal with their sister organisations overseas, which are also concerned about the damage the IA’s so-called ‘open library’ is doing to authors and publishers around the world.

Is it too much to hope that the scholars, writers and readers who value and use the irreplaceable research library that is the National Library’s overseas published collection won’t have the Internet Archive Grinch steal their Christmas? Here’s a hearty wish that common and legal sense will prevail, and the books will remain in the national library of New Zealand.