Category: Lit/Pub

Internet Archive Will Lose Big In Suit With Publishers

There is one consistent flaw inherent to most anti-copyright agendas. Because so many contemporary theories and attitudes tilting against copyright are largely predicated on the introduction of digital technologies, a false dichotomy persists between access and authorship. Since the days of NAPSTER, authors have endured a litany of techsplaining on the (not quite true) theme that the cost of access (i.e. reproduction and distribution) is “near zero” in a digital market.

To this incomplete view of the market, authors in every medium have worked harder than should be necessary to remind people that the human investment in the creation of works has not been substantially altered, regardless of the many changes in the way works are consumed in the digital market. Book writing is a clear example of this principle. It takes the author the same amount of time, energy, talent, etc. to write the book, regardless of whether it will be read in the form of digital, clothbound, paperback, or audiobook copies. Yet, time and again, endeavors to weaken copyright, through litigation and PR tactics, continue to focus almost exclusively on access to works, as if authorship of existing works never happened and authorship of future works is assured.

And that brings us to one of the more dramatic stunts in the service of anti-copyright zealotry—the launching on March 24 of the so-called National Emergency Library by the Internet Archive. On the claim that the coronavirus shutdown created unmet “educational” needs, the NEL provided unlimited access, worldwide, to an estimated 1.3 million books.* Several news organizations, eager to report positive stories at the leading edge of the health crisis, applauded the IA for its apparent munificence. But this enthusiasm was soon tempered, as authors spoke up and reminded journalists and the public that IA had no right—either legal or moral—to make “gifts” of other people’s works.

I will admit that, prior to the NEL, I had not paid too much attention to the Internet Archive. I was aware that its founder Brewster Kahle is an outspoken copyright critic, but so are many real librarians, who I would describe as well-intentioned but misguided in their chronic support of various infringing, commercial ventures. As mentioned in the past, I have certainly used the Internet Archive to research works long out of copyright, and I wondered in this older post whether the archive’s usefulness truly needed the kind of anti-copyright rhetoric espoused by Kahle. But that was naïve. Because Kahle is a zealot.

When IA used the cover of a global crisis to provide unlimited access to over one-million books, it was not to fulfill an urgent need, least of all an educational one. Even if this had been a sincere goal, it would not have been possible for IA to assess any gaps in the nation’s educational demands as early as March 24—and this fact is only emphasized by the indiscriminate assortment of in-copyright books, like romance novels and thrillers, that IA made available. These are likely not part of any school’s curriculum. Meanwhile, legitimate publishers of widely-used educational books did respond to the pandemic by providing free and/or broader digital access for teachers and students.

The National Emergency Library was a PR statement—a stunt orchestrated by an anti-copyright ideologue seeking to advance an agenda. Given the unfounded legal theories upon which the NEL was announced, it is plausible that Kahle was fishing for a lawsuit, hoping either to turn those legal theories into caselaw precedents, or to use the PR narrative of victimhood upon losing.

If getting sued was the goal, this was accomplished on June 1st. Four of the major book publishers filed suit in the Southern District of New York alleging copyright infringement. Reading the complaint, I predict that IA will lose across the board (i.e. on all defenses). But, beyond that, assuming all the allegations are supported by evidence, the complaint provides a glimpse into just how insidious the IA venture really is–including ways in which it could pose a threat to legitimate libraries.

Under the copyright law, IA will most likely present a response based on statutory library carve-outs, and will reiterate its fair use “superpower” defense, based on the extraordinary circumstances of national quarantine. In the area of untested legal theory, IA will have the opportunity to present the concept it calls Controlled Digital Lending (CDL), a model that is not supported by law and not adopted by ordinary libraries.

Not Really A Library. Maybe A Business?

As already discussed in this post and elsewhere, the IA fails to meet the conditions of accredited libraries that would make its activities eligible for the statutory carve-outs for libraries and archives. With regard to fair use, there is nothing in case law to support the idea that a national emergency alters the fair use analysis, and it is hard to imagine the court will find the NEL to be anything other than an unlicensed substitute for existing legal sales and lending channels. Add to this analysis the ways in which the publishers describe IA as a multi-million-dollar commercial enterprise, and rather than expecting to prevail on fair use, IA could be seen as walking very close to the line of criminal copyright infringement.

The section of the complaint alleging that the not-for-profit Internet Archive looks highly commercial is more detailed than I can present here, but the summary states:

“IA has an interlocking web of contributions and commercial services that support its Website. In addition to receiving large-dollar donations, IA has made tens of millions of dollars from selling commercial services. One of the services it offers is industrial-scale book scanning and digitization, which has generated more than $25 million in revenue since 2011.”

For instance, when IA digitizes and distributes an in-copyright, contemporary book—the complaint shows Gladwell’s Blink as an exhibit—it is not only infringing two exclusive rights under §106, but it also displays a link to “Buy This Book,” which leads the reader to a “used” online bookstore called Better World Libraries operated by, you guessed it, Brewster Kahle. How this conduct is distinguishable from hosting an infringing work in order to generate ancillary revenue from ads or third-party sellers is not entirely clear. But suffice to say the more that infringing activity can be linked to a financial interest, the worse things look for the Internet Archive.

Controlled Digital Lending – A Legal Theory

The concept of Controlled Digital Lending (CDL) may sound to the average listener like a sensible proposal—it almost did to me—but it has at least three major flaws legally and one major flaw pragmatically. The idea is that a library may digitize any physical copy it owns and then loan a digital copy to as many readers at a time as it has physical copies in its collection.

The legal challenges to CDL are 1) that there is no statutory carve-out allowing libraries to do this; and 2) even if there were such a provision, auditing the physical collections supposedly backing the digital copies is a dubious prospect; and 3) when IA provides the commercial service of mass scanning “on behalf” of libraries, this auditing seems especially unlikely. It gets even more complicated with the IA supposedly housing containers full of books to back up its CDL model, but we’ll see where that leads.

As a practical matter, the way digital lending works now, with libraries licensing collections via third-party services like OverDrive, this is almost certainly more cost-effective than the clerical labor implied by a CDL model—if the intent were to remain in compliance. Hence, the CDL idea sounds logical in theory, but upon examination begins to look like an attempt to whittle away at copyright protections. Depending on what IA presents in its response, it may be very interesting to see what, if anything, the court says about CDL. Separately, one reason the authors and publishers issued such resounding condemnations of the National Emergency Library was the fact that even the restraints of CDL (e.g. one book-per-customer and wait lists) were removed in response to the pandemic.  

Authors, Publishers, and Real Libraries Already Collaborate

In his public response to the lawsuit, Kahle announced that the NEL will be closing earlier than planned and “returning to Controlled Digital Lending. He writes…

“We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic.  However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world. This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.”

I wonder. If Kahle truly believes he his defending “any library,” he should welcome the lawsuit, especially when he cannot possibly be surprised to have triggered it. Of course, the reality is that IA is an outlier. It does not operate like “any library,” and that makes all the legal difference in the world. At the same time, the claim to want to collaborate with authors and publishers to “build a digital system that works” rings rather hollow. Infringing authors’ works en masse (let alone using a crisis an excuse to do so) is not a foundation for a collaborative partnership; and frankly, nobody really needs Kahle’s input in this regard. Digital access, especially to the kind of contemporary books in suit in this case, is widely available to consumers via multiple portals. Meanwhile, what working authors do need is to stop spending so much time fighting piracy at home as well as abroad.  

*Originally reported as 1.4 million when stories broke. Publishers’ complaint states 1.3 million.

Things Creators Can Learn From Seuss v. ComicMix

I listened yesterday morning to oral arguments presented (via video conference) on Monday before the Ninth Circuit Court of Appeals in the case Dr. Seuss Enterprises v. ComicMix LLC. As a quick recap, in 2016, Dr. Seuss Enterprises (DSE) filed a copyright claim against publisher ComicMix over a mash-up book called Oh, the Places You’ll Boldly Go!. The author/illustrator team who created the work used iconic illustrations from various titles in the Seuss portfolio, and combined the images with themes and characters from the Start Trek series. In 2019, a California District Court found that “Boldly” was fair use, applying first and fourth factor analyses that many creators found troubling. 

For deeper dives into the legal particulars, see my post from last August and/or posts here and here by Stephen Carlisle of NOVA Southeastern University. But suffice to say, I think most copyright watchers would agree that the appellate panel also found the District Court’s fair use analysis disconcerting and will at least remand, if it does not overturn the decision. Already quoted on social media by copyright advocates is this riposte by Judge M. Margaret McKeown:

“The district court seemed to take the position that if you take existing expression and then you interspersed it with new expression, you have a transformative work. That is a definition of transformative use that I haven’t seen before. It would seem to sting the notion of copyright protection, and almost everything would be a fair use.”

While it can be folly to read too much into judges’ comments at oral arguments, the panel did seem to express concern with three key points in this case:  1) that the lower court may have erred in finding “Boldly” a transformative work under the first fair use factor; 2) that the lower court applied the wrong analysis in considering the potential market harm to DSE under the fourth fair use factor; and 3) as a procedural matter intertwining the two factors, that even a correct finding of transformativeness does not shift the burden from the defendant to the plaintiff to disprove (or prove) potential market harm under the fourth factor. 

Now, I could break down what that all means, but would frankly rather wait until the court renders its decision, and, in the meantime, note that the complexity implied by these considerations leads to a different proposal I would make to most creators out there:  Don’t do this to yourselves. There are way better places you could go.

If you have talent and a desire to express something to the world—and you would rather spend your time creating works than fighting legal battles—the decisions made by “Boldly’s” authors in this instance provide a pretty good guide (Things 1-5, if you will) for avoiding legal complications, even if you want to parody classic material.  

Thing One – Learn What Parody Is

Thanks, in large part, to the volume of works used in funny YouTube videos and such, the word parody is too often invoked to describe every use of a work for the purpose of comic effect. This is an error, both as a literary and legal definition of parody. As discussed in more detail in this post in 2014, a true parody must comment on the original work being used. When ComicMix attorney Dan Booth was asked about this distinction on Monday, he averred that “Boldly” parodies the original work because Seuss’s character is “individualistic and narcissistic,” while Star Trek conveys themes of “teamwork” and “universalism.” 

While I am in no position to judge evidence I cannot fully review, that sounds like a very slippery (i.e. loose) grasp on any claim to parody. Merely using protected works in a new context does not favor a finding of fair use. If “Boldly” is indeed a parody, it should directly lampoon the values or ideas expressed in “Go” by mocking or critiquing Seuss’s original themes of individual empowerment through imagining possibilities. (And even then, we get into some murky waters with regard to copying visual works for the purpose of commenting on textual expression. But let’s not go there, boldly or otherwise, right now.)

I would further argue that the authors’ use of illustrations from multiple Seuss books militates against a finding that “Boldly” is directly commenting upon “Go.” In fact, one illustration from “Boldly,” shown on this ComicMix post from 2017, depicts two Spocks in the manner of Seuss’s The Zax, and the text actually reinforces a theme of individuality. So, maybe there is real parody in “Boldly” somewhere, but it doesn’t sound like there is.  

Thing Two – A Mashup is Not Automatically Fair Use

At oral argument, Booth described the mashup as an “innovative form that takes different sources and puts them in dialogue with one another.” Okay. But even if that were a universally applied description of the mashup aesthetic, it does nothing to place the form in any special category of consideration under a fair use analysis. 

As a general statement, one can assume that, for instance, two sources “in dialogue with one another” will create a third voice, and that this would be consistent with the purpose of fair use, but any given mashup will be subject to the same case-by-case analysis that will be applied to any other type of use. Moreover, because mashups generally involve works owned by more than one copyright owner, they can invite more than one legal complaint.

Thing Three – Apply an Inverse Rule When Creating Parody

One of the errors I find most troubling in this case, even to hear it presented, is the implication that ComicMix needed to create imitations of Seuss’s visual works in order to convey the parodic nature of “Boldly” (assuming parody is even present). This argument is anathema to what I would describe as an inverse proportion rule that says:  The more widely recognized the original work, the less the parodist needs to copy in order to express a commentary about the work.

Seuss’s illustrations are so iconic and so universally recognized that one need not copy every tittle and jot with the precision of a Talmudic scribe in order to lampoon the work—if indeed parody is the real goal. On the contrary, a true parodist would seek to mock an artist’s visual language by selecting certain characteristics to overstate or understate, rather than create a work that so slavishly mimics the original that an ordinary observer would fail to perceive that any visual parody exists at all.

This is one of the weakest aspects of ComicMix’s appeal to parody in my view—that an average consumer, seeing “Boldly” on a store shelf, might easily think that DSE had produced the mashup. Never mind the trademark implications, but a sendup of Dr. Seuss should be almost immediately recognizable as not Seuss and yet Seuss-like enough to know that a joke is being conveyed. We see examples of effective parody through limited copying all the time. Hence the general fair use guideline, to take only as much of the work as necessary is, in fact, easier to apply when parodying the most recognizable works.

Thing Four – Be More Creative

Let’s be honest. A great deal of the time, making substantial use of existing works—especially works as famous as the Geisel oeuvre—is motivated by marketing more than a burning need to express something new. Again, I won’t judge “Boldly” as a work without being able to read the whole thing—and its creators are experienced professionals—but Seuss is such an obvious source for this kind of appropriation that it is difficult to see such uses as more than gimmicks, seeking to profit off the notoriety of the original. 

My oldest kid and I used to riff on the idea of famous Nazis reading Seuss-like works to children, including the book Oh, Zee Places You Vill Invade (and let’s not get started on the Sneetches with the stars.) But if we had developed that inside joke into a book a la “Boldly,” would it imply transformativeness under a fair use analysis? 

The target of the mockery isn’t Seuss, it’s Nazis. Seuss is merely an obvious context in which to place Nazis for satirical effect, but that would not make this hypothetical use a fair use. More specifically, if we did produce such a book, would we need to slavishly copy Seuss’s illustrations to make the joke work? Nope. Readers would get it through the use of illustrations that evoke Seussness without copying Seuss. 

Thing 5 – Work Around Copyright

Finally, if the goal is to produce new creative works—rather than spend years in copyright disputes—it is worth remembering the many, many stories in which creators start out intending to use existing works and then, by navigating around copyrights, discover new and better ideas that would not have occurred otherwise. Happens all the time. 

I wrote about this process in 2013, and that post was later cited in a paper by scholar Joseph Fishman called Working Around Copyright, in which he describes, in legal-scholar terms, what millions of creators already know: that overcoming obstacles to initial creative instincts tends to produce better results. And when that first instinct is to copy protected works, there’s a good chance that the still-untapped idea is probably much better.  

Internet Archive Uses Pandemic to Justify Looting

When I borrow a sentiment from Ayn Rand, you can bet I gave the matter some serious thought. But looting is the one word that comes to mind in response to last week’s move by the Internet Archive to launch what they call the National Emergency Library. Believing the coronavirus pandemic provides both a moral and legal foundation for its decision, IA suddenly made over one million published works, including contemporary books in print, available to “borrow” worldwide. And not even on a one-reader-at-a-time basis like a library. They just opened the floodgates. 

This “emergency library” is neither moral nor legal nor even necessary to meet a need suddenly created by the pandemic. Yet what is most galling about the IA in this regard is the pretense to public service and largesse against the backdrop of a real emergency. One cannot be “generous” with the labor and property of others, particularly those who are, themselves, vulnerable to the economic hardship caused by crisis. That is the true spirit of looting.  

Most authors are barely insulated from financial difficulty in the best of times. Many writers you might imagine as quite well off, some who even have august words like Pulitzer next their names, are among those who (as the economic reporters describe) could not lay hands on $500 in an emergency. And now we are all in the midst of an emergency. It is of course too soon to predict what long-term results will follow the ebb of Covid-19, but it is certain that millions of people are suddenly out of work right now. And among those so affected are creative workers, who generally earn average to below-average incomes under normal circumstances.

The mean income for authors from writing alone is $20,300, and the supplemental work that many of them do may presently be foreclosed, as it is for millions of people in multiple business sectors. If anything, it would seem that this moment of forced solitude and inertia is the perfect time to promote buying (or legally borrowing) a few books, rather than infringing the copyrights on about 1.4 million. 

In practical terms, the coronavirus has not reduced online access to cheap or free books, but it did prompt several major publishers to address educational needs by making digital books and other resources freely available to schools and individual students. Hence, IA’s claim that its “emergency library” was launched, in part, to make works available for students is a dubious one at best. Instead, the move reeks of opportunism—a stunt to promote the misguided anti-copyright agenda of IA’s founder, Brewster Kahle. Moreover, it reeks of cynicism in a moment when tens of thousands of creative workers are suddenly unemployed.

Musical artists cannot play live venues. Theaters are shuttered. Motion picture and TV production is at a near standstill. Book authors cannot travel, host promotional events, or lecture. Photographers cannot travel or do shoots that involve human subjects or crew. And many journalists who are still able to work are risking their lives to do so. At the same time, members of the creative community have responded to recession and fear in positive and useful ways—donating money, streaming or broadcasting free living-room concerts, making first-run movies available online, streaming theater performances, hosting online art classes for children, and the list goes on.  

By contrast, it is very hard to see Internet Archive’s “emergency library” as anything other than anti-copyright evangelism. In part, this view is supported by the fact that the library was launched on such shaky legal ground, that only the milieu of a major crisis could obscure the organization’s flagrant disregard for authors. In its response last week, the Authors Guild wrote the following:

“IA has made far-fetched claims that it is protected by fair use, but an appellate court case last year squarely decided the issue against them, as we advised them it would. There is simply no basis in the law for scanning and making copies of entire books available to the public. Now, IA has gone further and stripped away the one-user-at-a-time limitation so that any number of readers can access any of 1.4 million books at any time through a couple clicks….”

There are multiple exceptions and carveouts in copyright law for libraries and archives, and there are historic precedents for national emergencies. But those exceptions have limits and conditions designed to balance public service with the authors’ right to earn revenue for their work through legal distribution systems. Specifically, the statutory carveouts do not even apply to archives like IA, which is presumably why they assert that the pandemic somehow allows them to make these books available under the doctrine of fair use. 

This unfounded legal theory is exemplary of the archive’s ideological opposition to copyright. Kahle & Co. are of course entitled to advocate any view they want, but to camouflage their agenda in the fog of a pandemic is unconscionable. More particularly, the Internet Archive should not be surprised if, after this emergency has passed, they find themselves on the losing end of a lawsuit. If for no other reason, it may be necessary to affirm that their appeal to “emergency powers” under fair use in this case is legally untenable.  

As I wrote once before, the Internet Archive can be a wonderful service when used within the constraints of legality. Having just finished writing a book myself, I will admit that my bibliography has at least a half-dozen citations to IA’s digitized books from the very early twentieth or mid-nineteenth century (i.e. in the public domain). Providing access to materials that are otherwise hard to find without a lot of time and expense is the best and highest purpose of a digital archive. Such repositories can be invaluable to authors who, as mentioned, have limited resources to invest in their research. But if, while providing a useful service, the same archive seeks to degrade the already tenuous market for books still under copyright, then the whole value proposition becomes a vicious cycle of self-destruction. Not unlike looting during an emergency.