Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Internet Archive Should (but won’t) Quit While It’s Behind

On Monday last week, oral arguments were presented in cross-motions for summary judgment in Hachette et al. v. Internet Archive, and by end-of-business Friday, the court delivered its opinion thoroughly rejecting IA’s fair use defense. Although many of us watching this case felt a little whiplash Friday evening, the speed with which the court responded can perhaps be explained by the substantial body of case law in the Second Circuit which devastates IA’s arguments. The bottom line …

IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction.

IA immediately declared it would “keep fighting for the traditional right of libraries to own, lend, & preserve books,” but the court is well aware that this PR message has nothing to do with the conduct at issue in this case. Instead, under an unfounded legal theory called “Controlled Digital Lending” (CDL), IA has been asserting an invented right to produce and distribute its own ebooks—alleging that for every physical copy of a book stored somewhere in the collection, it is allowed to loan a digital scan to one reader at a time of that title.

The court has been very clear that IA is wrong on the law, and that libraries are not permitted to engage in this practice. Further, the opinion hints that a more thorough examination of the facts would not bode well for IA’s position had this case gone to trial. For instance, IA has been increasing the lending numbers in its CDL model by “partnering” with libraries to include those physical books in the system. But Friday’s opinion notes:

As an initial matter, IA has not kept its promise. Although the Open Library’s print copies of the Works in Suit are non-circulating, IA concedes that it has no way of verifying whether Partner Libraries remove their physical copies from circulation after partnering with IA.

In other words, while the Friday opinion focused primarily on eviscerating IA’s claim that the CDL model is allowed under the fair use doctrine, it noted that even if the scheme were legal, the archive is not in compliance with its own purported obligations. IA should quit while it’s behind. But it won’t. Instead, it will keep litigating and losing because this case isn’t about winning in court—it’s about playing the victim and selling a false narrative to the public.

This Case is About People Who Write Books

When IA founder Brewster Kahle says they’re fighting for “all libraries,” people in the humanities—artists, journalists, real librarians, and even some authors—believe him because 1) he sounds like one of us; 2) IA provides other valuable and legal services; and 3) it’s always easy to vilify an industry. So, instead of me nerding out on the court’s unequivocal rejection of IA’s fair use defense, I will instead highlight a rote statement from the opinion because it is probably the most important one regarding public perception about this case:

“They [publishers] obtain from authors the exclusive rights to publish books in digital formats…”

Copyright rights are vested in authors, and authors negotiate the conditional transfer of those rights to publishers. One cannot infringe the rights of publishers without infringing the rights and interests of authors. Of course, IA wants the public to think abstractly about the revenues at Penguin Random House et al. because it wants people to ignore the authors and what would happen to flesh-and-blood people if its conduct were allowed to continue and/or if it were replicated by other entities.

To consider the potential market harm using rough numbers, if the five publishers in this suit generate approximately $250,000 million/year from ebook licensing, and 30,000 authors receive 25% of that revenue, that’s a little over $2,000/year per author—less than a month’s rent in many places. And that per-author number is generous by some margin. There are nearly 50,000 working authors in the U.S.,[1] and the average income from writing alone is $20,000/year according to the Authors Guild. So, when IA alleges it has a right to reproduce and distribute its own ebooks, this is not an abstraction for the individual author—it’s grocery money.

IA Wants You to Think Its Operation is Under Siege

Many IA supporters on social media comment as if this litigation is a threat to the entire enterprise, but it is only IA’s Open Library model that is the subject of this suit. Neither the Wayback Machine nor the archive’s collection of public domain material is at issue. Additionally, the public should recognize that IA knowingly provoked litigation with its so-called National Emergency Library, releasing over one million in-copyright titles at will during the pandemic, and it has chosen to attempt to change the law by breaking it. But why?

The first post I ever wrote about Internet Archive asked whether the organization needs Brewster Kahle’s anti-copyright rhetoric and agenda to operate the useful and legal services it provides. And of course, it doesn’t. But IA has exploited, and will continue to exploit, this self-inflicted, quixotic lawsuit as a platform to lie to the public that it is just “doing what libraries do” as part of a broader effort to undermine the value and purpose of copyright rights.

Unfortunately, in this era of swooning cults of personality, Brewster Kahle is perceived as a rebel fighting for a cause when, in fact, he’s just another multi-millionaire with a populist message who either doesn’t understand or doesn’t care about the harmful implications of his tech-utopian ideas. The alleged mission to provide “universal access to all knowledge” should be read in the same light as Zuckerberg insisting that Facebook will be good for democracy. Or to put it another way, if this were Google instead of IA (because it could be), would my friends and colleagues in the humanities still buy what they’re selling?

[1] https://www.statista.com/statistics/572476/number-writers-authors-usa/#:~:text=In%202021%2C%20there%20were%20over,prior%20years%20on%20the%20timeline

Thaler Suit Against Copyright Office Asks for Analog Reading of Statute

Last February, the U.S. Copyright Office rejected the registration application filed by Stephen Thaler for a visual work entitled “A Recent Entrance to Paradise.” Thaler averred that the image was generated by an AI he designed called “Creativity Machine,” and on that basis, the Office affirmed the longstanding doctrine that copyright rights only attach to works of human authorship. In a series of cross motions, Thaler now argues that “non-humans have been authors under the statute for more than a hundred years.”

Broadly, Thaler asks the court for statutory interpretations based on proving a negative—namely that the Copyright Act does not explicitly state that an author must be human, or that an author cannot be non-human. His brief is peppered with examples in which the law does not expressly prohibit a non-human from having an “idea” or making creative “choices.” And he’s right. Nothing in the law makes such statements, but why would it? It is only very recently that law—and not just copyright law—must confront issues presented by sophisticated machines capable of performing functions ordinarily reserved for humans.

Prior to the present moment, it would have been absurd to affirmatively state that works of creativity or invention must be made by human beings. And it is frankly still absurd. Vehicular law does not explicitly state that the rules apply solely to human drivers (though we may have to address this one); marital law does not explicitly state that the parties must be human; and most relevant to this discussion, employment law does not explicitly state that non-discrimination and other rules of fairness apply only to human persons. Employment law is informative because Thaler’s primary claim of copyright in the visual work rests on the Work Made for Hire (WMFH) doctrine on the basis that “Creativity Machine” is the legal equivalent of an employee. But here, Thaler asks the court to read the law both strictly and metaphorically at the same time. Because nowhere in employment law are any rights vested in the analogous employee. For instance, the U.S. Equal Employment Opportunity Commission states:

Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

Title VII does not emphatically state that those qualities must describe human persons, but if we look to the definition of “persons,” we find …

The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-­stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 [originally, bankruptcy], or receivers.

So, if we are following Thaler’s supposedly rigorous statutory interpretation, we can end the discussion by noting that there is no mention of computers, algorithms, machines, robots, etc. to support the argument that “Creativity Machine” is an employable “person” as an operation of law. Indeed, even the non-human entities in the definition above do not exist except as various means to organize the work or interests of human persons, and this is relevant to the copyright question presented.

While it is true that entities like corporations can own copyrights, the rights themselves do not exist until the moment of fixation of a human’s conception and the result of a human’s effort. Until then, there are no rights which may be transferred to the entity—either by independent or employment contract. Human authorship is not removed from the production of the work by the administrative formalities entailed with corporate ownership. On the contrary, human authorship must occur in order for the rights to exist at all.

This same principle applies to Thaler’s semantic game alleging that pseudonymous or anonymous works become works of non-human authorship merely because the term of protection is no longer based on the lifetime of the author. This makes no sense. Does Thaler argue that works made prior to the 1976 Act were not works of human authorship simply because they were protected under fixed terms unrelated to the life of the authors? He is conflating administrative rules (which are admittedly more complicated than necessary) with the doctrine of human authorship, which predates those rules by a few centuries.

Simply put, there is no concept of copyright law anywhere in western culture in which the utilitarian purpose of incentivizing authors to produce and disseminate works is not intertwined with the principle that the fruits of intellectual labor are the property of the author as a matter of natural right. The hyper-utilitarian view often overlooks the natural rights vested in the author, but the bundle of rights codified in Section 106 of the Copyright Act are as intangible and violable as any other civil right articulated by statute.  And such rights do not exist without humans.

Thaler and others are free to invoke philosophical debate as to whether an AI can have “ideas” or make creative “choices,” and it’s all fine chatter for a round of drinks, but even if it could be proven that the AI is “conscious enough” to make a choice to create and how to create, this is irrelevant as a matter of law. And we do not even need to confront AI per se. An elephant can make a painting, and a circus can own an elephant, but the circus cannot claim copyright in the painting as a WMFH because neither copyright rights nor an employment agreement exists between elephant and circus. And this is because no rights—copyright or otherwise—exist for the elephant that give her standing in court.

Personally, I believe the courts have gone too far in blurring the line between corporate and human personhood—e.g., vesting Hobby Lobby, Inc. with the right of religious exercise, but even in that controversial case, human persons, as owners of a closely held company, remain at the center of the finding. This is not so in Thaler’s claim of copyright in the visual work at issue. “Creativity Machine” is not a “person” by any statutory definition and cannot, therefore, have agreed to an employment contract in which it was understood that the employee would produce visual works under the WMFH doctrine. It is an absurdity on its face scratching at pencil shavings of statutory meaning, and Thaler’s appeal to history does him no favors.

I suspect the courts will find Thaler’s reading of the law to be untenable and will further advise that only Congress can change the Copyright Act. And if Congress were to do so in this context, I would hope that they affirmatively state that authorship must be human. If elephants don’t have such rights, why should robots?

Robot image by: sarah5

Books are Not Floor Wax and Road Salt

One would think this is obvious, particularly to a librarian, but perhaps not to Douglas Lord, President of the Connecticut Library Association (CLA). In a letter addressed to the state assembly advocating passage of H.B. 6829, Connecticut’s version of similar bills proposed (and shot down) in other states to address alleged unfairness in eBook licensing to libraries, Lord writes:

It is very important to note that this legislation has nothing to do with copyright, it is a matter of contract law. In the same way that taxpayer funds are treated preferentially with all other state contracts – from floor wax to vehicles to road salt – the same should be true for electronic content. [Emphasis included]

Although the Connecticut bill does not require publishers to license to libraries in the state, it contains several provisions defining various publishers’ licensing models as “unfair trade practice,” which is tantamount to a state compulsory license, which means H.B. 6829 is preempted by the Copyright Act. So, it has something to do with copyright law. In fact, although I am sure Lord does not sincerely equate books to floor wax and road salt, his disregard for the unique cultural value of the former may explain his absurd allegation that copyright law is not implicated in a state bill about contracts. Every contract negotiated for the use of copyrightable works rests upon the author’s exclusive rights enumerated in Section 106 of Title 17. So, Lord’s declaration is either intentionally misleading or naively misguided.

Notably, Lord’s letter reiterates the ambiguous rationale that has been proffered by every advocate of these bills in every state so far—i.e., the difference between the retail price of an eBook purchase compared to the licensing models that publishers offer to libraries. He states, “Consumers pay, on average, $12.77 for eBooks from retailers like Amazon. The average cost for a public library for the exact same product is $45.75.” Indeed, if one does not look beyond those two numbers or gather any relevant community information, the price comparison looks outrageous, even extortionate.

But to address this issue, I did my best to examine the market in my own region served by the Mid-Hudson Library System and found that a) less than one-third of the MHLS community accesses the library system for books of any kind; and b) that the average eBook cost per read is ~$1.06. And apropos the big picture for the taxpayer, it is notable that maintaining a library’s collection—both physical and electronic—is usually a fraction of its operating costs. To quote my post looking at MHLS:

The data collected in the Institute of Museum and Public Services (IMLS) Public Library Survey reveals that libraries’ costs are increasing for personnel and general operating expenses while costs are trending downward for collection materials—especially the cost of ebooks and audiobooks. Noting that most libraries spend an average 10% of their annual budgets on their collections overall, an article in Wordsrated summarizing the IMLS Survey states, “The drop in price per item is due to library collections becoming increasingly digital. This is because the price per digital item has declined significantly. All while the average cost per book increased 10% since 2003.”

While $1.06 per read does not seem extortionate, I do not claim to know whether that price is “fair to the taxpayer” in New York or Connecticut or anywhere else. But that’s my point. No advocate of these eBook bills, to my knowledge, has attempted to demonstrate a critical need for this legislation based on cost/benefit numbers, which is odd when one is alleging unfair use of public funds. And I suspect that’s because these bills are not directed at solving a real problem but are instead the hobbyhorse of anti-copyright activists like Jonathan Band and Kyle Courtney. Consequently, it is no surprise that advocacy of these bills, including this letter from CLA, repeats the vague tautology that publishers are extortionate and usually ignores the interests of authors.

Here, Lord goes a step further and claims that “Authors get no added royalties or income from these sales.” Not true. Authors’ contracts include revenue from eBook licensing to libraries, and the author’s percentage of eBook revenue is usually higher than her cut from physical book sales. Plus, those percentages typically increase as sales go up, advances are covered, etc. So, I am not sure whence Lord’s assertion comes, but it is consistent with the logic behind this bill—that books are like other commodities, and the author’s pecuniary interests are not directly associated with her copyright rights.

As I’ve repeated in nearly every post on this topic, the libraries should be careful what they wish for when it comes to eBook licensing and, if they hope to remain relevant, should avoid putting too many eggs in the digital basket. The logic is not hard to follow. If 90% of the cost of keeping libraries open is not about the collection, and the digital collection grows too large, how long before taxpayers figure out that facilitating eBook loans can be done with a website and without those expensive buildings and librarians? After all, some taxpayers may think that a former library would be a handy place to stockpile floor wax and road salt.

Photo by: AndreyPopov