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.

NY Gov. Hochul Vetoes eBook Lending Bill

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Yesterday, New York State Governor Kathy Hochul vetoed A5837, the eBook lending bill, which is almost identical to bills in Rhode Island, Massachusetts, and Maryland. The Maryland law, set to take effect on the first of the new year, triggered litigation by the American Association of Publishers (AAP), primarily on the basis that these bills are unconstitutional, preempted by federal copyright law, and this was the rationale stated by Governor Hochul for her veto. But even if preemption were not an issue, I am glad to see that New York, the birthplace of America’s literary heritage, has rejected legislative tactics designed to weaken the rights of authors.

In addition to the fact that New York is and always has been central to American publishing, antebellum New York was the epicenter of the first domestic literary movement, which proclaimed a more democratic literature that would no longer feed off the traditions of Europe. Walt Whitman was among the first young authors who answered that call with his elegy Leaves of Grass, but who also joined the contemporary authors who advocated for better copyright law. The cultural dividend of those efforts is the diverse anthology of literary works we enjoy today, and, of course, New York retains its prominence in literature, art, and entertainment.

The eBook Bills Are a Solution Without a Problem

These eBook lending bills are allegedly written to meet an unfulfilled demand for library access to eBooks by compelling publishers to license to state libraries and mandating the terms of those arrangements. But aside from the consideration that this amounts to an illegal state compulsory license, if the governors were to visit their state libraries, audit expenditures on eBook licensing, and assess demand for these works, they would find it difficult to identify the problem these bills are supposed to alleviate. On the contrary, the legislative background of these bills comprises little more than generalizations echoing Silicon Valley’s naïve view that somehow access to creative works can exist without production of creative works.

While doing no good for readers, these bills would cause significant harm to the complex symbiosis between authors and publishers and even jeopardize the symbiosis between authors and libraries. Yet, for reasons difficult to fathom, the American Library Association (ALA) and other library lobbying organizations continue to advocate policies hostile to authors’ interests. Although public libraries are essential and beloved, they do not operate in a vacuum but rather as part of a copyright economy that begins with authors.

Copyright incentivizes authors to produce and distribute their work by granting the exclusive right to decide the terms on which that work is made available, including timing, geography, price, and format. Often, these decisions may be the difference between success and failure, and any state law that functions as a compulsory license strips the author of those prerogatives. In this case, the eBook lending bills propose to divest the author of those rights in the service of a much broader agenda looking far beyond the narrow claim to improve eBook lending.

Familiar Tactics

Although copyright is rarely a partisan matter, it is notable that these bills have been pursued in blue states where it is easier to promote the idea that this is about corporate versus public interest with the librarians advocating for the latter. But aside from the fact that authors’ interests are a public interest, if one looks behind the blue curtain, one discovers the names of individuals (e.g. Jonathan Band) and organizations (e.g. Fight for the Future) with significant funding ties to the tech industry, which ultimately stands the most to gain by using state legislatures to chip away at federally protected rights.

For instance, the library groups generally endorse the tech industry view that these state bills are preludes to statutory changes to federal law, like amending Section 109 to extend the first sale doctrine to digital copies. But the library associations fail to recognize that such a change in the law would not only empower commercial ventures to exploit authors but would also hasten the irrelevance of libraries in the digital age.

While I think it is generally good news when any state governor recognizes federal law for what it is, in this case, it is especially gratifying to see New York spared from looking rather dumb considering its role in the copyright ecosystem. I believe we are about to see in Maryland that the courts affirm that these eBook bills are unconstitutional and, therefore, doomed to the scrap heap. In the meantime, perhaps the many thousands of creative professionals who live and work in New York State should ask why our legislature actually passed such a disruptive, and ill-fated bill without a damn good reason in the first place.

Why is the press so bumfuzzled about copyright issues?

During a recent scan of the Authors Guild discussion boards, where I look for copyright related comments, I noticed a couple of authors mentioning how dismayed they were to hear the NPR show 1A host a one-sided conversation about the Internet Archive being sued by several major publishers. The program, which aired on December 7, hosted Internet Archive founder Brewster Kahle, along with Melanie Huggins of the American Library Association and John Bracken of the Digital Public Library of America.

The segments of the show extolling the virtues of libraries and discussing their digital futures were valid conversations worth having, but my friends at AG were right to take issue with the producers at 1A in regard to the conflict between Internet Archive and the publishers over copyright infringement. WAMU had provided a forum for advocates of policy positions directly opposed to authors’ interests and did so without inviting any authors to participate. Instead, as the press often does it seems, 1A amplified the too-simple narrative about King John publishers and Robin Hood librarians, as if the writers of the books necessary to both institutions do not have anything to say on the matter.

If 1A and others don’t want to host a serious conversation about the legal doctrines implied by the theory called “Controlled Digital Lending,” or they don’t want to discuss the library associations’ hopes to amend §109 of the Copyright Act, fine. If they don’t want to invite counsel for the Association of American Publishers to debate these nuanced legal matters, so be it. But before providing yet another platform for those who promote the “evil publisher” narrative, perhaps some consideration for the relationship between publishers and writers is warranted.

I don’t know. Maybe Macy’s will never talk to Gimbels. Because it seems to me that public radio shows feature in-depth interviews with authors all the time. Clearly, somebody in the ambit of NPR understands that before publishers or libraries can make books available, writers have to write them. And writing books is what we call work. And using anyone’s work without license is what we call exploitation, which is precisely what writers feel when Brewster Kahle (who is a multi-millionaire, by the way) and the executives at library associations presume to make books available in ways that contravene licensing regimes governed by copyright law.

It is very disappointing when journalists in a position to shape public perception on background issues like copyright law are apparently so star struck by Kahle’s utopian shtick that they ignore the individuals whose lives would be affected by the ideas he and his friends are promoting. I wonder if the producers were even aware that Kahle lied at the top of the program about the publishers’ lawsuit, when he flatly stated, “They’re accusing the Internet Archive of lending books,” and then further insinuated that the lawsuit came out of the blue at the start of the pandemic.

Commenting as a lifelong liberal, I can say that was Kahle throwing red meat to a presumably liberal audience, no less bloviating bullshit than anything that ever flowed from the maw of Jim Jordan. Because in this case, Kahle omitted the crucial detail that what triggered the lawsuit was his decision to release 1.4 million books without license or restriction, describe the move as a “National Emergency Library” (NEL), and claim that it was Internet Archive’s response to an urgent need during the early days of the COVID shutdown. (See post here for discussion.)

But Kahle is not so naïve and innocent as he presented himself on the broadcast. The NEL was a stunt—one worthy of Barnum—that seized upon the emergency atmosphere of the first wave in the pandemic to advance a broader anti-copyright agenda. And he had to know it would force the publishers to sue. Like any activist, Kahle wants to control the narrative, which is an understandable tactic but should be seen as a tactic, and one that had nothing to do with responding to a public need, let alone showing any respect for authors.

Unfortunately, the producers at 1A, like much of the press, seem to remain blissfully unaware that the copyright agenda promoted by Kahle and the library associations is not narrow but would, if achieved, affect professionals across most if not all areas of copyrighted works. So, in this regard, perhaps they might take a glance at their own web page, read ©WAMU at the bottom, and ask themselves what that means in the broader conversation they are not quite having.

Ciao Internet Association. It’s been weird.

IA has made great progress on its mission to foster innovation, promote economic growth, and empower people through a free and open internet. As this chapter closes, member companies remain committed to advancing public policy in support of this mission and will continue to work with stakeholders in other capacities. – Board of Directors Statement on IA’s Future –

Thus spake the Internet Association upon announcing that it will cease operations at the end of this year; and anyone engaged in advocating the rights of creative professionals (i.e. copyrights) shall be forgiven their moment of schadenfreude. While it would be inaccurate to say that this lobbying organization was formed by the major internet platforms in response to the anti-piracy bills SOPA/PIPA, it was certainly no coincidence that IA formed concurrently with Silicon Valley’s extraordinary efforts to kill that legislation, which Congress abandoned in January of 2012.

It was the holiday season of 2011 when nearly every Member of Congress and the Obama White House expected the anti-piracy bills would pass easily into law. Neither Google, nor any of the internet giants, had much of a lobbying presence on Capitol Hill, but they did have an unprecedented advantage as an industry insofar as they owned the platforms we were all using to “share information” and shape one another’s views. They controlled the algorithms that prioritized results in a search or a newsfeed, and they had the data to show how effective a dumb meme could be for animating political action.

I believed then, as I do now, that the Stop SOPA campaign was a primer in how to affordably and effectively unravel a democratic republic—a little lie that taught others how to tell much bigger lies. At the same time that organizations like the EFF were congratulating themselves and the public for the “grassroots” effort that stopped those bills, Silicon Valley companies were already having discussions about getting their act together in Washington.

In addition to Google growing its own presence in D.C. from a whisper to a roar, they joined with Facebook, eBay, Amazon, and others to form the Internet Association, which was announced in the media in July of 2012—just six months after the defeat of the anti-piracy bills. The unstated mission of IA, couched in vague terms like “innovation” and “openness,” was arguably to maintain the status quo and keep the pesky laws of the “real world” from infecting the self-governing idealism of cyberspace.

Now, in a very different climate in which we even see Facebook make a show of asking Congress for regulation, it is fair to say that the status quo the IA was formed to maintain is a lost cause. Further, according to Politico, the organization’s funding imploded on the weak link that the giants’ interests are unsurprisingly not wholly aligned with the smaller members. The article quotes Yelp senior vice president of public policy Luther Lowe, using a colloquial acronym for Google, Apple, Facebook, and Amazon and stating, “This org could’ve saved itself years ago by kicking out everyone with a market cap greater than $500b (i.e. GAFA). I made this suggestion to the leadership a few years ago, but it was shot down, so we quit.”

Pause for schadenfreude. Go ahead. You’ve earned it.

In 2019, Netflix left the Internet Association and joined the Motion Picture Association—the same organization that lobbied for the anti-piracy bills and which was therefore cast as the leviathan that would “destroy the internet” and “end free speech” for the sake of a few more dollars for its movies, and all because the studios were “clinging to the dead model of copyright in creative works.” The Netflix switch was hardly a surprise for a company that was, in fact, a movie studio, but the point is that the foundation of IP protection for creative works endures while the underlying rationales for killing anti-piracy legislation in 2012 have not aged well.

Netflix, like any film producer, entertains millions of viewers while vague Silicon Valley’s vague allusions to speech rights and connecting people stammer in hearings on Capitol Hill, and lawmakers confidently announce that the free ride for internet platforms is over. Whether that means revision to liability standards like Section 230 or meaningful antitrust enforcement, etc. remains to be seen—especially while bipartisanship on these issues remains entangled in the kind of disinformation that metastasized on social media, and which is still endorsed by a consequential faction of the GOP.

While I am highly skeptical that legislation alone will help us restore the conduct necessary to maintain a healthy democracy, I do believe that there are policy-based solutions to particular harms like social media addiction in teens, nonconsensual pornography and harassment, predatory antitrust conduct, and, yes, rampant copyright infringement.

Such matters can and should be addressed through legislative action, and in that regard, the end of the Internet Association after just under a decade of operation should affirm at least two truths:  first, that maintaining the laissez-faire approach to cyber policy was always folly; and second, that there is no “the internet” to defend against public policy. The internet is just a network of machines upon which every individual and every business, small and large, is mutually dependent. So, ciao, Internet Association. It’s been weird.