As libraries fight for access to e-books, a new copyright champion emerges

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A long running battle over copyright has flared up again, and Lila Bailey is at the center of it.

A personable 43-year-old with a masters in fine arts, Bailey is the chief lawyer for the Internet Archive, a non-profit facing a major lawsuit from big publishers over how it lends out e-books.

“This case will determine what libraries will be. We think the future of libraries hangs in the balance here,” says Bailey in a recent interview from her home in San Francisco.

The case involves the Internet Archive’s decision to create a temporary “National Emergency Library” at the height of the pandemic’s first wave—a service that expanded how many e-books clients could borrow simultaneously. The publishing industry sued, saying the non-profit was handing out digital books without permission.

The Internet Archive case has received national attention—a widely shared article in The Nation described it as “publishers taking the Internet to court”—and has drawn attention to the reality that, as library branches close over COVID concerns, patrons must often wait 10 weeks or more to borrow the digital version of a best-seller.

A debate as old as the Web

While some of the legal details are new, the underlying conflict is not: Since the late 1990s, the publishing and entertainment industry has clashed bitterly with Internet users and public interest advocates over how to distribute the fruits of the digital economy.

For Bailey, the debate is personal. Growing up in an artistic family of modest means on Long Island, she never encountered the Internet until arriving at Brown University in 1995. There, Bailey made friends with a circle of creative types thrilled by the culture and community they discovered on web, from the music-sharing bazaar Napster to blogging platform LiveJournal.

“The Internet seemed like this amazing new thing to distribute knowledge and information,” she recalls.

After college, Bailey landed in the midst of New York’s cultural elite with a job as an executive assistant to a creative director at magazine giant Conde Naste. But she soon became disillusioned, concluding the publishing industry prioritized money over artistic ideals.

Bailey’s next move took to her Berkeley Law School, a political and intellectual milieu more to her taste. She also acquired a mentor in the person of Pam Samuelson, an influential copyright professor who was among the first to argue the laws of the Internet should reflect the public interest—and not just create a series of economic padlocks for giant corporations.

Bailey worked at Samuelson’s eponymous tech law clinic as a student. And then, as a lawyer, she did stints at Creative Commons and the Electronic Frontier Foundation—two other Bay Area institutions that have been at the forefront of many legal battles around digital rights. She also practiced at two prominent tech law firms, Wilson Sonsini and Perkins Coie, working on landmark copyright cases involving YouTube videos and thumbnail images.

After setting up her own firm, Bailey joined the Internet Archive—one of her former clients—in 2017. She notes the non-profit serves as a vital online archive not just to the general public but to many lawyers who rely on its “Wayback Machine” for evidence in patent trials and many other cases.

“Digital book burning”

In its current fight with the publishers, Bailey says the Internet Archive is standing up for the right to act as a library, lending out scanned versions of the books it owns in a controlled fashion.

Needless to say, the publishers disagree, and are pressing forward with the lawsuit even though the Internet Archive shut down the “emergency” version of the library in June. The publishers claim the non-profit is a rogue operation and are also seeking an order that would force it to destroy 1.5 million of the more than 4 million works it lends (the rest are in the public domain)—a remedy that Internet Archive founder Brewster Kahle called a “form of digital book burning.”

The case is set for trial in 2021 and, if past copyright clashes are any indication, is likely to give rise to nasty invective on both sides—a situation Bailey decries.

“We’d love to be in talks with the publishers. We prefer conversation to litigation,” she says.

Bailey adds she is dismayed by the visceral tone of many copyright debates, and particularly by smears leveled at Samuelson, whose integrity she says is unimpeachable. Critics have implied, without evidence, that Samuelson is in the pocket of Google, but may also hold a special ire for her role leading the Authors Alliance, a group of writers who disavow the more hardline stance of the New York-based Authors Guild.

Fortune repeatedly invited John Mckay, a spokesperson for the American Association of Publishers to comment on Bailey’s work and the tone of copyright debates, but he declined to respond.

One reason for the often bitter nature of the copyright debates is that the Internet has hurt the bottom lines of book publishers and music labels, which has in turn left them with less money to pay creators. Bailey acknowledges this reality, but argues lawsuits like the one directed at the Internet Archive do little to fix it.

“An issue I am deeply sympathetic with is that many authors don’t have access to affordable healthcare during this pandemic. I just have serious doubts that aggressive copyright enforcement is the appropriate policy mechanism to solve [it],” she says. “I want authors to have healthcare, but let’s do that by fixing healthcare.”

Taking up the copyright torch

Bailey’s advocacy for the public interest in copyright law led Public Knowledge, a respected policy think tank, to award her its annual intellectual property award at the recent IP3 Awards—a gala that featured a who’s who of tech intellectuals, including author and law professor Tim Wu.

According to Meredith Rose, senior policy counsel at Public Knowledge, Bailey is among a new generation of leaders who are taking up the copyright torch from the likes of Kahle, and scholars like Sameulson and Lawrence Lessig. Rose says others in this new vanguard include the journalist Sarah Jeong, law professor Blake Reid and Kyle Wiens, who has led a successful “right to repair” campaign against Apple, John Deere and others to allow individuals to tinker with the software code in their devices.

According to Rose, Bailey has stood out in particular for her ability to explain the arcane aspects of copyright law, and advocate for those whom it affects.

“She can describe the real experience of librarians and borrowers who are often overlooked in the copyright debates. We hear a lot from Google and and publishers and authors, but not from schools navigating remote education, and trying to obtain course work,” says Rose.

Even as the publishers proceed with their lawsuit against Internet Archive, Bailey remains optimistic that the wrangling factions will find ways to work together. She points to the Music Modernization Act, a recent bipartisan law that updated how artists are compensated for music streaming, as an example of what is possible.

“At the end of the day, we all want great creative stuff to be out in the world, including great books and great art and movies. We can all agree on that, so it’s weird we can’t agree on a way to get there.”