Category: Lit/Pub

Internet Archive Defender Alleges the Second Circuit Doesn’t Know the Law

In a recent article for The Scholarly Kitchen, Todd A. Carpenter, Executive Director of the National Information Standards Organization (NISO), defends Internet Archive (in Hachette et al. v. Internet Archive) and the practice called Controlled Digital Lending (CDL). Proving that one need not be Lindsey Graham to engage in propaganda disguised as legal opinion, Carpenter predictably elides any mention of authors’ interest in this case and makes erroneous statements of law, but he goes a step further by alleging bias or incompetence at the court. First, he mischaracterizes the case thus:

Publishers were not simply seeking to end a short-term program, but are seeking to limit the ability of libraries to engage in new approaches to existing rights that libraries have as established in copyright law.

To describe IA’s so-called National Emergency Library as a “short-term program” is too cute by half, but more important is the rest of that sentence. A “new approach to existing rights”? That’s like saying the Jan. 6 rioters took a “new approach” to the rights of assembly and speech. Except in IA’s case, the “existing rights” don’t exist in the first place.

Rights have contours and limits. And in copyright law, the various exceptions carved out for libraries and archives described in Section 108 do not allow the practice described as CDL, which is why IA put all its eggs in the basket of a fair use defense. But Carpenter, clearly unaware as to how weak that defense is, alleges that the district court judge rushed to a myopic decision . . .

Judge Koeltl has a reputation for prompt judgements in these types of cases and the turnaround of the judgement shouldn’t be read as reinforcing the obviousness of the decision, as some have done.

Judge John G. Koeltl was nominated to the federal bench by President Clinton in 1994, and I am skeptical that Carpenter possesses any data to show that the judge’s turnaround time “in these types of cases” is unusually brief. More to the point, Carpenter clearly does not know enough copyright law to understand exactly why the quick decision at summary judgment was indeed obvious—namely that IA’s fair use defenses have already been argued and decided in this same circuit.

There are so many quotes from precedent cases in Judge Koeltl’s decision that his opinion could almost be described as boilerplate—i.e., settled law. CDL is not allowed by statute, so IA cobbled together a tenuous fair use theory, every aspect of which has been presented by other parties (e.g., ReDigi, TVEyes), which Carpenter presumes to suggest the courts cannot understand.

The Internet Archive is aggressively seeking to extend this argument and will push it up the Appeals Court ladder as far as they can to advance their aims. I am not certain, however, that the court system, as it is currently populated, will be receptive to the IA’s arguments.

First, let me predict that the appellate court will very quickly affirm the district court ruling because this is an easy case, and I will further predict that the Supreme Court will not grant cert because this is an easy case. Yes, there are, and have been, judges with personal views on copyright (e.g., Ginsburg generally pro; Breyer generally anti), but the only kind of judge who would find that IA’s Open Library is fair use is one with little or no experience in copyright law whatsoever.

Unfortunately for IA and Friends, the Second Circuit has the longest, and perhaps the richest, body of copyright case law of any circuit in the country. To allege judicial bias is fine (and I have plenty of bones to pick with plenty of judges), but the implication that the arguments presented in Hachette are too nuanced or visionary for the “current population” of judges is a smokescreen obscuring Carpenter’s inaccurate framing of the merits . . .

The judge twisted himself into argumentative pretzels to define IA’s work as commercial.

So simple, and yet that one sentence clearly expresses a deep well of ignorance about the “commerciality” question under the first factor analysis of the fair use test. Simply put, even a non-profit entity can still obtain “benefits” or “advantages” through its exploitation of the in-copyright works at issue, and this tilts away from fair use. For example, if a church uses unlicensed artwork to make tee shirts promoting itself or a message it endorses—even if it gives the shirts away—this use may be held “commercial” under factor one in a fair use analysis. The case law is pellucid on the various ways in which IA obtains “benefits” or “advantages,” and if Carpenter et al. see “twisting,” it is only because they are unfamiliar with the well-trod paths Judge Koeltl is following.

This ruling inherently narrows fair use and relegates library use to either the aggressively controlled digital subscription ecosystem, a very narrowly constrained use case set, or the domain of the purely physical. 

See my post on Critiquing Copyright in the Digital Age under Use of Utter Bullshit. When a party argues for the expansion of a doctrine—and here IA advocates broadening fair use to encompass its CDL theory—the court’s rejection of that expansion does not result in narrowing the doctrine but instead affirms the status quo.

Again, the Second Circuit has been here and done this. By its own description, it “pushed fair use to its limits” in the Google Books and Hathi Trust cases, which Judge Koeltl cites thus: “If HathiTrust and Google Books demarcated the boundaries of fair use, this case shows what conduct remains squarely beyond fair use.” That’s not narrowing. That’s saying the court (specifically, this court) has drawn the lines the defendant is attempting to cross. The unstated implication: if you want to change the law so dramatically, Congress is your only venue.

The publishers did not pursue the many libraries that have used much more limited applications of CDL to serve their constituents.

Here, Carpenter implies that IA is being picked on by the publishers because IA’s conduct is exemplary of what libraries are already doing. And it’s easy to generalize and refer vaguely to “more limited applications of CDL,” but the thing about law (fair use analysis in particular) is that it is fact intensive.

Which library is engaged in which specific activity that is directly analogous to IA’s infringing conduct? Because if any library is producing and distributing its own ebooks to people all over the world, that library is violating the law. If the library is instead engaged in some other practice clearly exempted by statute, then Carpenter et al. should stop conflating IA’s Open Library with ordinary library practices. If it’s something else, then Carpenter et al. should stop generalizing and be specific.

The contract-law focused world of copyright for digital content is much more heavily weighted to the benefit of publishers and to the greatest extent possible, publishers would prefer it remain there. It is to every consumer’s detriment that we continue to move ever more in this direction in all manner of our digital lives.

I have no idea WTAF any of that means and am willing to bet Carpenter doesn’t either. Because it sounds like sloganeering—chumming the waters for emotional responses that override basic reason. And the basics are not very complicated. Authors write books. If you like books, then you need to recognize that authors’ copyright rights play an essential role in incentivizing them to write and distribute books—through retail, through libraries, on paper, in digital formats, audio, etc.

Carpenter is wrong to the point of lying when he implies that this case is more nuanced than the courts understand. It isn’t. It’s a straightforward matter if one knows the case law which, conveniently for IA, most people do not. What complicates this story in the court of public opinion, therefore, is that IA is a presumptive good guy who happens to be doing a bad thing. Its Open Library undermines core copyright rights for authors in ways that go beyond the world of libraries—and beyond books for that matter.

This case is not about libraries or “our digital lives” or the many platitudes attached to the subject of technology and cultural works. It’s about denying any party the opportunity to strip individuals of the basic right to protect and derive income from their creative work. And if Carpenter et al. see a difference between trying to silence authors through censorious laws or silencing authors by disenfranchising them in the market, then they’re just drinking a different color Kool-Aid.

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

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