On March 24, 2020, the Internet Archive announced that it would create a National Emergency Library offering no-waitlist borrowing of all of the books in its collection. In effect, this allowed unlimited, if temporary, downloads of copyrighted works. The National Emergency Library was presented as a response to the current national and global public health crisis; however, nothing in either the Copyright Act, 17 U.S.C. § 108 or the aspirational documents of ControlledDigitalLending.org provides a legal basis for a library to lend out more copies of a work at one time than it actually owns. Nor does the case law support an “emergency exception” to copyright law.
The only possible legal justification for no-waitlist lending is fair use under 17 U.S.C. § 107. This Article discusses the statutory and case law governing online libraries, with special attention to two related cases on fair use and online libraries: Authors Guild, Inc. v. HathiTrust and Authors Guild, Inc. v. Google, Inc. Ultimately neither the case law nor the language of the statute itself supports the National Emergency Library’s no-waitlist policy, and this Article concludes that no-waitlist e-book lending is, at least in the case of copyrighted works otherwise readily available and whose authors have not granted permission for the copying, in violation of the Copyright Act.