By Nick Miller
Melbourne-based actor Ben McKenzie wasn’t looking to take sides in one of the internet’s more fraught debates over censorship and freedom. But when he discovered his labour of love audio drama had been pirated and uploaded to the Internet Archive, he reckoned it was “excuse my French, f---ed”.
The case of the Internet Archive – literally a legal case, currently chugging along in a New York district court – is usually presented as a legacy Goliath vs online David story. In 2019 four big publishing houses, Hachette, HarperCollins, Wiley and Penguin Random House, sued the archive, claiming it was violating their copyrights and cost them millions in lost sales by lending out their books.
For two decades the non-profit archive has been archiving websites for posterity (the ever-useful Wayback Machine is part of the project). In 2006 it added ebook lending to that mission, working with global partners to digitise books under copyright or not.
“Should we stop libraries from owning and lending books? No,” said Brewster Kahle, the Internet Archive’s founder and digital librarian. “We need libraries to be independent and strong, now more than ever, in a time of misinformation and challenges to democracy. That’s why we are defending the rights of libraries to serve our patrons where they are, online.”
Earlier this month the archive applied for an order to summarily dismiss the court case. The Electronic Freedom Foundation (EFF), supporting the archive in the action, said publishers were seeking to “control how libraries may lend the books they own”.
“They should not succeed,” said EFF legal director Corynne McSherry. “The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world.”
But publishers say the archive has more than 3 million unauthorised in-copyright ebooks, including more than 33,000 of their commercially available titles, and does not pay the rights holders their dues. The Australian Society of Authors says it considers the archive a facilitator of copyright infringement, and advises Australian authors and illustrators to contact it to ask for their books to be removed.
And it’s not just ebooks. McKenzie and colleague Petra Elliot created an audio sci-fi comedy called Night Terrace, whose (so far) two seasons became a bit of a cult hit.
The income from online sales has been a small but useful lifeline during some very lean pandemic years, and a time-limited licence to BBC radio helped pay the actors a bit more and invest in a third season, launch date to be confirmed.
But, while looking through the archive recently, McKenzie discovered his shows had been pirated (apparently from the BBC Sounds online app) and uploaded. The site ticker indicated they had been accessed more than 3000 times: if just a 10th of those people had paid for the experience, McKenzie could have paid all five creators about a month’s minimum-wage income and covered their online hosting costs for a year.
“They’re just freely available,” he says. “And I have had to spend unpaid hours today finding it and working out how to ask for it to be removed.”
He points out that, though the archive calls itself a library, Australian libraries are part of the Public Lending Rights scheme, which pays authors an annual sum to compensate for lost royalties when physical or digital books are held in libraries.
“I love that, because I like to know that when I borrow a library book, the author does get paid something,” McKenzie says. But the archive doesn’t count towards this scheme.
The archive does have a process to alert it to piracy, but it’s labyrinthian.
“You have to search through the help section to find a reference that tells you to look at their copyright policy, and then when you read through that, at the bottom it says, ‘You have to send us a letter,’ ” says McKenzie.
He did this, and a few days ago (after The Age had also sent a series of unanswered questions to the archive), the pirated content was taken down. Though he had to request it twice: they rejected his first request because he didn’t use the precise wording in the site’s copyright policy.
“There’s a huge amount of value in a lot of the stuff [the archive] does,” says McKenzie. “But when it’s copyrighted material that wasn’t in the public domain, their attitude towards it tends to be pretty cavalier.”
Night Terrace can be (legally) purchased at nightterrace.com/buy
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