The hottest book in the U.S. right now is almost impossible to get—and unusually so. It’s out of print, costs $1,849.99 on Amazon, and is “not even close to being a good book,” as the New York Times said in its review. But like with most books, you might now be able to get your hands on it at a digital library.
Mark Judge’s book Wasted: Tales of a GenX Drunk came under the spotlight as Christine Blasey Ford accused Supreme Court nominee Brett Kavanaugh of sexually assaulting her in high school and said that Judge was also present. According to Ford, both Kavanaugh and Judge were “extremely inebriated” during the attack, and Judge’s book has been cited as evidence that Judge and Kavanaugh were heavy drinkers in high school. The memoir details Judge’s experience and recovery with alcohol as a teenager.
But on Wednesday, the Internet Achieve, a nonprofit digital library, made Judge’s book available as a scanned digital copy. Initially, the book was uploaded without restrictions, so anyone could read it at any time. This version was “uploaded by someone from the community,” said Mark Graham, the director of the Internet Archive’s Wayback Machine, in an email. It has since been replaced by a copy owned by the Boston Public Library and can only be loaned like a traditional book. (As of Thursday evening, you’d be 256th on the waitlist). On Thursday, two more copies of the book were uploaded without any restrictions by a member. Could the Internet Archive be violating U.S. copyright law, either by lending a digital copy owned by the Boston Public Library or by serving as a platform for members to upload content? In both cases, the answer is likely a no.
Under controlled digital lending, a library can lend a print book to a website like the Internet Archive as long as the site treats it like it’s a physical copy. In other words, the library will only lend out the exact number of books it owns. Controlled digital lending tries to ensure that digital books do not get copied and redistributed by readers.
For controlled digital lending to work in the first place, a library needs to make a digital copy of the print work, but making a scanned copy of a physical book generally infringes upon copyright laws. However, Judge’s book likely falls under fair use, says Annemarie Bridy, professor of law at the University of Idaho. For one, Judge’s book is out of print, so the Internet Archive is not making revenue or taking revenue away from the author or publisher. Wasted is also a memoir, and copyright is stronger in creative works of fiction. And there is a strong public interest in the book, since Judge is a significant part of a newsworthy conversation.
“It’s not a slam dunk that it’s fair use,” says Bridy. “But the controlled digital lending model is careful enough about what they are doing to have a pretty good case that this book [falls under] fair use.”
In the case where a member uploads a digital copy of a book, as happened with the two copies on Thursday, the member is responsible, not the Internet Archive. Keeping the content up would be a violation of copyright law, but until a rights holder asks for something to be removed, the site has no associated liability. “If this user uploaded [the book], it’s not the Internet Archive’s problem until they get the takedown notice or the red flag,” said James Grimmelmann, a law professor at Cornell Tech and Cornell Law School. “They are not responsible for the ones they haven’t found because they don’t know it’s there.”
Of course, the Internet Archive has a stronger case because it’s trying to uphold a public mission as a digital library, including promoting literacy and access to knowledge. “Copyright laws privilege libraries,” said Bridy. “Internet Archive is just trying to do something that’s consistent with its mission, but in a way that tries to respect copyright.”