Category: Lit/Pub

Brief in Defense of CDL Indicts Internet Archive and CDL

Among the amici who filed briefs in Hachette v. Internet Archive is former law professor and library director Michelle Wu, who, as the brief states, “…is recognized by many as the originator of the legal theory underlying controlled digital lending (“CDL”) ….” With her brief, Wu seeks to defend CDL as a doctrine and asks the court to limit its considerations to the facts related solely to IA’s conduct and to reject what she calls the publishers’ overbroad “attack” on CDL itself. She states:

CDL takes many forms. Many libraries around the United States offer works through CDL subject to their own individual platforms and practices. The arguments offered by Plaintiffs in support of their motion for summary judgment are a broad-based attack on all of them, shoehorning the very concept of CDL into a dispute about the Internet Archive’s individual implementation of it.

Before addressing the arguments presented in the brief, it is noteworthy that if Ms. Wu would have CDL inoculated against the conduct of Internet Archive, she and her colleagues have had ample time to distance themselves and the legal theory from IA’s founder and avowed anti-copyright crusader Brewster Kahle. Because one year after IA engaged in the infringing conduct that triggered the publishers’ litigation (March 2020), Wu was a key member in a Public Knowledge-hosted panel with Kahle (March 2021), entitled Burying Information – Big Tech & Access to Information.

Promoted in the wake of the January 6th insurrection as a remedy to misinformation, the panel blamed copyright law for contributing to the perils of widespread ignorance and conspiracy theories threatening democracy. Specifically, Wu et al. touted CDL as a necessary alternative to ebook library licensing on the grounds that this licensing is somehow keeping knowledge away from the very people who need it. Further, nobody on the panel disputed Kahle’s allegations that the publishers’ suit against IA was an attack on CDL and libraries in general.

So, in addition to the fact that it seems hypocritical for Wu to now ask the court to distinguish the underlying theory of CDL from the conduct and agenda of IA, it is no surprise that the arguments she presents echo the same general complaints against copyright rights articulated in that panel discussion. For instance, Wu reprises the theme that libraries are sentinels against the tide of rampant mis- and disinformation in the digital age—and repeats the claim that CDL is integral to that mission. “CDL is an essential pillar of countering misinformation by making library materials accessible, relevant, and competitive,” the brief states.

Even if that premise were not magical thinking (because lack of access is not the cause of the dangerously misinformed), Wu paints with too broad a brush in defense of her theory that CDL is inherently legal. Aside from the fact that there is no evidence that all the access to all the books in the world will disburse the fact-immune hoards from laying siege to reason,[1] Wu’s faith in the contrary belies a general prejudice against copyright law in lieu of articulating a concise argument for the narrow opinion she claims to want from the court.

Moreover, Wu may be blind to the fatal flaw in her central argument when she says that “many libraries” use CDL in different ways to achieve a variety of purposes. The problem with her list of general examples (e.g., CDL for preservation, serving readers with disabilities, etc.) is twofold. First, many of the examples stated or implied are activities exempted for libraries by statute. Second, the possibility that certain activities of several libraries may be allowed by fair use undermines the broad sweep of Wu’s defense by emphasizing that fair use is a fact-intensive, case-by-case consideration.

Finally, and perhaps most importantly, a fair use defense does not turn on a particular method of copying or making a work available. The CDL theory asserts that it is legal for a library to essentially make its own ebooks from the printed books in its collection, as long as it never loans more electronic copies than it owns physical copies that were legally obtained. Wu’s brief impliedly acknowledges that Internet Archive did not adhere to the “controlled” part of CDL, but in seeking to rescue “real CDL,” the brief is tellingly overstuffed with allegations that, even if true, are not applicable to a question of fair use.

For instance, Wu refers to budgetary constraints of libraries and the supposedly onerous cost of ebook licensing by publishers. But even if this allegation were valid for most libraries—and it does not appear to be—it would say nothing about whether a library’s version of CDL would fall under the fair use exception. On the contrary, Wu’s complaint about existing ebook licensing effectively acknowledges that CDL is a means of bypassing that licensing model and implies that this is justified by cost.

This argument is barely distinguishable from familiar rationalizations for large-scale piracy, which any court should find unpersuasive in general and should find meaningless as a fair use question. The amount of a licensing fee demanded for any work is immaterial to the question of whether a user who avoids paying the license is making a fair use. Wu’s attention to the cost of ebook licensing seems meant to distract from the reality that, even with the controls in force as prescribed by the CDL theory, the model displaces the authors’ right to license ebooks on their terms to libraries. And this market substitute consideration should ultimately doom a fair use defense on all four factors.

This consideration would be unaffected, even if ebook licenses were shown to be onerous because such a complaint, if valid, would properly sound in antitrust law or consumer protection or be argued before Congress seeking a new library-based exemption in the Copyright Act.[2] But because allegations of burdensome pricing models are not properly addressed by fair use, this suggests, again, that Wu and her colleagues defending CDL are admitting that the model is a market substitute and believe that it should be based on their own ideological reasoning

Several aspects of Internet Archive’s operation, including the activities at issue in this litigation, disqualify the entity from statutory exemptions accorded to libraries in Section 108 of the Copyright Act. Inasmuch as IA tries to stand in the shoes of real libraries, this is a PR message for social media but one without a foundation in law. And because IA is not a real library, a finding that its conduct is legal would only further embolden any commercial enterprise to engage in mass, unlicensed digitization and distribution of ebooks and other works.

By contrast, Wu’s insinuation of difficulties for legit libraries engaged in “many forms” of CDL are either unfounded or, perhaps, they inadvertently implicate some of those libraries in infringing conduct. Either way, facts pertaining to the operation of some number of unnamed libraries are not before the court in this case, and only a detailed accounting of those facts, library-by-library could have any legal bearing on those activities. As such, we must conclude that Wu and her colleagues simply want the courts to find that CDL is automatically fair use, and this would be doctrinally absurd. Because the courts are well aware that no conduct is automatically fair use. Not even for libraries.

[1] As noted in my post about that panel, the entire Western canon is more widely and freely available than at any time in history.

[2] In fact, the state ebook licensing laws for libraries have largely been premised on consumer protection and still failed, thus far, as unconstitutional state compulsory licenses.

Photo by: nito

Book Bans Should Remind Library Groups that Authors’ Rights Matter

If I believed in Hell and a “special place” reserved for certain villains, I would say that one of those suites in the stygian underworld is the destiny of all book burners. And lately, it seems that room is getting overcrowded. According to a recent story in The Guardian, “the ALA has been tracking bans for two decades and reported that 2021 was the worst year for attempted censorship yet, with 1,597 books challenged,” writes Maeve Higgins.

Higgins reports that certain conservative groups in the U.S. are targeting libraries through a variety of political mechanisms with the purpose of banning books that include or address LGBTQ+ rights, race, sexuality, and the usual catalog of verboten lit among the mouth-breathers. Meanwhile, the Neo Nazis and Proud Boys are simply showing up at library events with the purpose of intimidating staff and visitors.

Book bans are nothing new, of course, but if librarians are sentinels defying those forces, I would remind the leadership of the American Library Association (ALA) et al. that the authors are not only on the same side but are often directly in the crosshairs of censors. And what protects the author best is the market. When copies of Maus sold out after a Tennessee school board banned the book, the response was more than satisfying—it was important. Because that’s how the market protects the voice of Art Spiegelman and the voice of the next author who writes the next book some idiot wants to destroy.

I mention this because when it comes to copyright law, it’s almost as if the ALA and other library associations forget that behind that book about race or gender or the Holocaust—or whatever topic frightens the snowflakes on the far right—is an author. Maybe the author is gay or Black or trans or Jewish, or some combination of these and other experiences that are as worthy of expression through storytelling as any other. But the author’s financial reward for her labor is precarious at best.

The median income made from writing alone is $20,300 per year, and those who say that this is due to capitalism and the greed of publishers have no idea what they’re talking about. Even with its myriad imperfections, only a free market can produce the kind of diversity in literature and cultural works we enjoy in the U.S., and foundational to that market is the bundle of authorial rights protected by copyright law. It should be obvious that library organizations are the author’s natural ally on these matters, just as they stand shoulder-to-shoulder to oppose censorship. But sadly, the connection seems to elude the ALA and many of its cohorts.

To be clear, I do not believe that individual librarians tend to forget the authors. In fact, I am certain this is not the case. The individual librarian is often the author’s best friend and strongest advocate. But your local librarian is also not the person who decides which policies the ALA et al. pursue, and in the area of copyright law, these groups have wasted extraordinary time, energy, and money on efforts to weaken copyright rights in ways that would not only harm authors, but which would obviate the need for most libraries before long.

To be absolutely blunt about it, the library associations have been duped on copyright issues. Not because they are fools, but because they mean well. Their best intentions have been used against them by parties whose motives—whether ideological, financial, or both—demand opposition to the copyright rights of authors. For instance, the ALA has recently expended vast resources pursuing state legislation to undermine ebook licensing models, despite the fact that these bills are unconstitutional on their face and, when we look at the numbers, appear unnecessary to the purpose of serving library communities.

The library associations have also backed commercial ventures seeking to distort the fair use and first sale doctrines in copyright law, revealing a shortsightedness that is hard to fathom—both because it turns allies into antagonists, and because some of those commercial ventures would swallow the role of many libraries. Equally naïve is the tacit endorsement library groups have given to the Internet Archive’s invented theory of “Controlled Digital Lending,” which would aggravate the economic precarity of authors and would be hazardous to libraries everywhere.

If IA’s founder Brewster Kahle achieved his stated ambition to build a free repository for “every work ever created,” what do the library associations imagine happens next? While the number of professional writers would be decimated, libraries across the country would be shuttered as obsolete relics. After all, if one segment of a community will vote to defund the local library for hosting Drag Queen Story Time, and the readers in that same community can get everything from a central database on the web, who will pay to keep a library’s doors open and why?

And before long, which entity is really going to own and control that universal repository of everything? Google? Amazon? Meta? If you think localized book bans are bad, imagine Meta and its invisible star chamber influencing books the way they currently moderate comments on Facebook. I would think most librarians are wise enough students of history and current events to see where weakening authors’ rights can lead, which brings us to the question of who convinced these associations to pursue copyright boondoggles and make unnatural adversaries of authors?

Ivory tower academics and lobbyists who receive substantial funding from the tech industry are at the forefront of all efforts to weaken authors’ rights, including initiatives alleged to be in the interest of libraries. Just review the names of the amici who filed for the defendant in Hachette et al v. Internet Archive, and it will not take long to see the intersection of Big Tech money and advocacy of IA’s false claim to be a surrogate for “all libraries.” Such proximity to Silicon Valley should be a bright yellow flag for the ALA, but like the frog carrying the scorpion, they remain willfully blind to the true nature of that industry and its utopian promises.

Librarians on the front lines in the contemporary assault on literature should keep in mind that there is more than one way to prevent a book from being read; and censorship, infuriating as it is, has often been defeated by the market. A far more effective means to silence a multitude of writers would be to ensure that their books are never written in the first place, and one way to achieve that end is to weaken the copyright rights of authors and further limit their power to change the world.

Internet Archive the Racket

I think we’ve figured out by now that you can fundraise by lying to people about a threat, right? You can tell them an election was stolen. Or that the internet is under attack. Or that movie stars are harvesting babies to make adrenochrome. Or you can tell them stuff like this . . .

Damn. That’s some chutzpah. If Internet Archive were honest about this litigation and sending out fundraising emails, I’d leave this part of the story alone. But read that message and tell me it doesn’t sound eerily familiar. Because IA’s claim that it’s “defending access to knowledge” is like Donald Trump saying he’s “defending our Constitution.” The email even uses the word radical to describe the publishers’ suit in order to obfuscate the fact that it was IA’s random and illegal (one might say radical) conduct that triggered this litigation in the first place.

Of course, Brewster Kahle’s crusade does not have the grave implications of an attempted coup d’etat, but the comparison I’m making is fair because the tactics are the same: lie about some principle or operation being under threat and ask suckers for money to support the defense. Because the irrefutable fact is that if IA loses this suit (and I believe it will), the outcome will have zero effect on the “right of libraries to lend books.” This is just common sense.

Even if you do not have time to dig into the details of this case, you can ask yourself why the publishers filed suit in 2020 against IA and not against any actual library system? Or you could ask the most obvious question: Has ordinary library lending always violated copyright law, and the publishers just suddenly decided to start litigating? Obviously not.

The modicum of truth underlying that slick email is this: Internet Archive decided to violate copyright law and provoke a litigation that, if successful, could allow all libraries to engage in unlicensed ebook production and distribution. And while there are indeed library associations that would endorse this agenda, that is not the same thing as a fight to preserve the status quo in library lending as the email so stridently declares.

Your local library system is not engaged in the conduct at issue in this lawsuit. Here’s just a sample list of allegations that distinguish Internet Archive:

  • Internet Archive operates an industrial-scale scanning service which has generated over $25 million since 2011. It provides this “service” to libraries but retains digital copies for itself and makes many of the digital copies available at its own discretion. Your library does not do this.
  • Internet Archive allegedly keeps thousands of physical books in a warehouse in shipping containers as part of the “collection” it then loans in digital form under a theory of its own invention called “Controlled Digital Lending” (CDL). Your library does not do this.
  • Citing the COVD-19 shutdowns as an excuse, IA made available approximately 1.4 million titles without controls of any kind in March 2020. Your library did not do this.
  • Internet Archive makes unrestricted access to digital books available that it deems to be in the public domain but which are, in fact, still in-copyright titles. Your library does not do this.
  • Internet Archive seeks to displace licensed ebook lending models like OverDrive. Your library does not do this.
  • Internet Archive is not a library despite its claim to “accreditation” based on federal funding it has received in the past. Said funding does not make IA a library as defined in the Copyright Act. Your library is a library.
  • Internet Archive does not appear to follow its own made-up rules. So, even if those made-up rules were legal exceptions (and they are so not), it would be violating those exceptions anyway. Your library does not behave like this.
  • Internet Archive’s founder Brewster Kahle, using a shell corporation, purchased Better World Books, which “sells used books” and then feeds IA’s Open Library with in-copyright books it then claims it is allowed to loan under the theory of CDL. Your librarian does not do anything of the sort.

Naturally, these allegations and others are all matters worthy of more in-depth discussion. But my point in summarizing a few examples is that there is no merit whatsoever to a fundraising email suggesting that the publishers suddenly or randomly decided to go after ordinary library lending.

Tell you what, though. Rather than send millionaire Brewster Kahle your money, send me $5.00 today. I can use it more than he can, and unlike that guy, I make every effort to support what I write with facts. Plus, as a bonus, if you send five bucks right now, I can almost totally guarantee you will not be abducted by aliens!

Send David $5.00

Don’t be abducted by aliens! Send $5.00 today!