Category: Digital Culture

Publishers’ Suit Against Internet Archive is Pro-Author, Not Anti-Library

“The raggedy state of my books that some readers and educators hand me to sign is the best compliment of all.” – Sandra Cisneros –

The matter of Hachette et al. v. Internet Archive should be short work for a court in the Second Circuit (or any circuit). The allegations about IA imply an operation that is barely distinguishable from other mass-piracy enterprises. which have sent their owners to jail. The motion for summary judgment (MSJ), filed by the publishers on July 7, is a catalog of statements of undisputed material facts (SUMF), a fraction of which should obliterate IA’s claims that it operates within the most elastic reading of the copyright law.

In a follow-up post, I’ll discuss the legal questions presented and why I believe more firmly now than I did two years ago that IA will lose on every point in this case. But for the moment, I’m calling bullshit on the big theme IA tries to sell in the court of public opinion—namely, its claim to be just another library “doing what libraries do” and that it is, therefore, a target of a voracious publishing industry and a proxy for the interests of all libraries.

Without getting into the weeds, IA’s conduct is highly distinct from ordinary libraries for three key reasons: 1) its founder Brewster Kahle has repeatedly stated his agenda to obviate copyright law and make “every book in the world” available online for free; 2) IA engages in a scanning-to-ebook scheme that circumvents ordinary library licensing under its own theory called Controlled Digital Lending (CDL); and 3) even if CDL were well founded in copyright law, IA does not adhere to its own invented restrictions set forth by the regime.

So the contention that IA functions like any other library is untrue, as the aforementioned catalog of material facts makes clear, and offensive, as author Sandra Cisneros makes clear in her declaration to the court, also filed on July 7. “Real libraries,” she writes, “do not do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.” Simple and to the point. But Cisneros’s testimony in this matter contains multitudes.

Many authors will recognize their own personal battles with both craft and purpose when they read Cisneros divulge, “About three years after The House on Mango Street was published, when I was 33 years old, I found myself unable to pay the rent and considered killing myself because it was so painful to feel like I was of no value to society, even though I knew I was a gifted writer.” That’s more than an economic statement. It is existential in every sense. And countless artists have been there in one way or another.

So, to the snarky bros of tech utopia, the self-righteous wonks at EFF, the privileged dilettantes of anti-copyright academia, Cory Doctorow, and most especially Brewster Kahle, you are all invited, with prejudice, to go fuck yourselves. Because what, one might ask, was Cisneros’s solution to transforming the growing popularity of her work into a measure of financial sustainability for herself? Naturally, it was copyright law.

“…my agent of the last thirty-five years, Susan Bergholz, approached me at this time and helped me to enforce my rights as an author,” writes Cisneros, stating that she initially asserted her rights among some smaller publishers but notably not with Penguin/Random House—a relationship she describes as integral to sustaining her as an author.

This lawsuit is not about a billion-dollar industry seeking to hinder the lawful conduct of a real library. It is about a multimillionaire ideologue hijacking the author’s livelihood for his own commercial gain, and because he believes he knows best how the world should work. We have enough ideologues robbing individuals of their agency these days. Why is a tech baron seeking to rob book authors of their rights any better?

“It was like I had gone to a pawn shop and seen my stolen possessions on sale,” Cisneros tells the court about visiting the IA  platform and seeing her work distributed for free and without license. She also notes that she has personally given away many copies of her books to readers who, like her own childhood family, cannot afford to buy books.

Cisneros’s testimony is compelling because IA’s defenses cannot breathe in law, but only in PR, where cute graphics and grabby headlines falsely portray it as a Robin Hood taking on industry. And lest we forget, her voice is not alone. When this litigation was triggered in 2020 by IA’s so-called National Emergency Library, citing the pandemic as an excuse to distribute 1.4 million unlicensed titles, authors Colson Whitehead, Alexander Chee, and others sharply criticized the move. “The Internet Archive’s ‘emergency’ copyrights grab endangers many already in terrible danger,” Chee tweeted at the time.

More authors should continue to call out IA for its conduct—if not for themselves, then for the next generation of writers. “The ability of copyright law to incentivize the creation of new works will be profoundly undermined if Internet Archive devalues books further by continuing its mission to put bootleg copies of every book it can acquire on the Website,” the publishers’ motion argues.

It is a simple rule of economics that you cannot eliminate fair trade in distribution without destroying the incentive to produce—except perhaps as an eccentric hobby. “Aided by its industrial scanning apparatus and book pipeline, IA can realistically achieve its goal of offering 80% of all books currently residing in libraries within the decade,” the publishers’ motion states. If that ambition were realized, one ironic result could be shuttering real libraries around the country because an operation like IA would render those institutions obsolete.

But the more devastating and certain effect would be to kill many prospective writing careers in their fragile beginnings, a period Cisneros describes as discovering her voice when she found the child narrator for The House on Mango Street. She says, “Best of all, writing in a younger voice allowed me to name that thing without a name—that shame of being poor, of being female, of being not quite good enough, and examine where it had come from and why, so I could exchange shame for celebration.”

That’s the author Brewster and his swarm of elitist amici want to deny both income and the right to make her own choices about her work. As she writes in a latter chapter in Mango Street, “People who live on hills sleep so close to the stars they forget those of us who live too much on Earth.”

Note: Some quotes by Cisneros are transcribed from the introduction to the audiobook version of The House on Mango Street, and my punctuation may not match hers.

NOTE: Originally published that Neil Gaiman criticized the NEL, as reported by NPR. Gaiman later tweeted that the article misrepresented his views.

Privacy in an Age Without Any

I join millions of Americans—the vast majority in fact—in feeling both dismay and anxiety at the near certainty that Roe v. Wade will be overturned. Abortion is not a subject for the editorial scope of this blog, but because the issue historically intersects the right of privacy—and because enforcement of the most draconian laws now on the books in several states implies substantial invasions of privacy—it is worth asking what happens next in a society that has largely sacrificed privacy to its technological toys?

In 1992, Ruth Bader Ginsburg, as part of the Madison Lecture series, discussed the assailable weaknesses in Roe, including her view that it was decided on the wrong question—the implied right of privacy rather than an affirmative right of non-discrimination. She further argued that Roe was so overbroad an opinion that it stymied judicial and political progress at the time, trending toward mitigating or ending sex-based discrimination. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” Ginsburg wrote before contrasting Roe with contemporaneous decisions that she believed supported a more solid, if narrower, holding.

Although I personally agree with Justice Ginsburg that privacy was not the ideal foundation on which to base a woman’s right to seek an abortion, Roe’s unstable purchase on the privacy right comes in a moment when, for all practical purposes, privacy does not exist.* Regardless of the constitutional questions raised by Ginsburg et al., both the tenor and the letter of the state laws being written, or discussed, reek of religious fundamentalism and medieval encroachments into the most personal matters of people’s lives. And we must acknowledge the implications of enforcing those laws in the age of the cellphone and the social media profile.

What started with reconnecting with old friends via Facebook bloomed into so much personal data—even information shared unintentionally—that algorithms can not only predict outcomes, they can be used to effect outcomes. There is no need to reiterate the many world events thus far shaped by the manipulation of Facebook data alone. But suffice to say that if some well-financed interest wants to know the intimate details of a complete stranger’s sex life—or the same about a whole community (e.g., all the women at a particular college)—we have already shared more than enough information for an algorithm to produce fairly accurate results.

I don’t think it is farfetched to say that we are past the point when a state actor or political action group can theoretically purchase data which can then be used to predict when a woman intends to end a pregnancy, let alone know whether she already has. Add this to the kind of vigilantism being codified into state laws, and the harm beyond the abortion right itself flows into every vein of our civil liberties.

If Texas or Missouri, for instance, seeks to proscribe access to pharmaceutical abortion and/or travel out of state for a procedure, does this imply that women will need to abandon their right to maintain social media profiles or that they’ll need to use burner phones like drug dealers just so they can make their own medical decisions? The interpretive capacity of AI has already proven to be highly effective and dangerous. No woman needs to announce over Twitter that she’s on her way to the clinic. On the contrary, Google’s promise to “know you better than you know yourself” is only partly a PR statement because the boast correctly describes how powerful data interpretation at scale can be.

Outlandish fears? I doubt it. Not based on the evidence so far. Increased harassment of women—including crossover from cyberspace to real space—is already a sad reality of life plus social media. And there is no reason to believe that the intersection of misogyny and anti-abortion zeal will not be amplified and extended through the use of these technologies.

Whether Ginsburg et al. are correct that Roe galvanized the anti-abortion movement into a force that otherwise may not have materialized, it cannot be denied that the fervor of that opposition today is willing to deploy any tools available in the pursuit of its crusade. In a time when we should be criminalizing abuse of these technologies to spy on, harass, or surveil our neighbors, the state laws upheld by overturning Roe all point us in the opposite direction.

* I do not mean to imply that this Court would uphold abortion rights under any claim, but merely illustrate a distinction from the privacy foundation.

Image by: kentoh

U.S. Court Orders Pirate Site Blocking. Internet Should Break Any Day Now.

And if it did, really at this point…?

As reported on TorrentFreak yesterday, the District Court for the Southern District of New York handed down three nearly identical rulings in copyright infringement complaints against three pirate streaming entities. Finding for the plaintiffs, who comprised several Israeli film and entertainment companies, there was nothing remarkable about the outcome of the decisions but for one feature. The pirate site owners, who did not defend themselves or appear in court, lost by default judgment, and the plaintiffs were awarded statutory damages to the maximum $150k per infringement for a total of over $23 million for all three suits.

But Andy Maxwell at TF is right that what is unique about these decisions is the district court’s order to all U.S. ISPs, which states the following:

IT IS FURTHER ORDERED that all ISPs (including without limitation those set forth in Exhibit B hereto) and any other ISPs providing services in the United States shall block access to the Website at any domain address known today (including but not limited to those set forth in Exhibit A hereto) or to be used in the future by the Defendants (“Newly-Detected Websites”) by any technological means available on the ISPs’ systems.

In other words, site blocking—a form of injunctive relief that has been applied in Europe, Canada, Australia, and other democratic countries (without breaking the internet), but which has historically not been so vigorously applied in the U.S. as this order demands. Stay tuned for wailing and gnashing of teeth from the internet industry and the usual network of “digital rights” groups proclaiming this decision a disaster in the battle for internet freedom and the speech right. And as Andy forecasts, we will likely hear renewed incantations of the acronym SOPA. “More than a decade after U.S. lawmakers scuttled the controversial SOPA legislation that would’ve required ISPs to block pirate sites, a US court has demonstrated that the ability to block sites has been available all along.” he writes in his intro.

And that’s not entirely without merit. One reasonable criticism of the SOPA/PIPA legislation was to ask whether it was somewhat redundant in light of the fact that injunctive relief of this nature was and is already available to the courts. Ordering an unnamed third party in a complaint to cease facilitating harmful conduct is not groundbreaking law, which is one reason why all the shouting about that legislation ten years ago was so ridiculous.

Still, stay tuned for the Knights Who Say SOPA to say SOPA once again in the hope of frightening people into believing that blocking access to a few criminal websites will lead to the death of the “open internet.” And this makes me think of a twist on another Monty Python routine, only in this case, the irony is a bit different. Because what has the “open internet” done for us other than conspiracy theory run amok, teenage suicide and depression, help turn America’s conservative party into a religious cult, allow rampant data leaks, aid an coup d’etat by a U.S. President, destroy the right of privacy, violent insurrection at the Capitol, novel ways to harass women, and battering the Fourteenth Amendment to a rhetorical pulp? Other than all that, what has the open internet done for us? Cue Michael Palin: “You can wish people Happy Birthday.”

I know. There are some other benefits, even on social platforms, and I use them myself. But the funny thing is that we can have those benefits without the lawless free-for-all bullshit promoted under the banner of “openness.” In the meantime, site blocking a few pirate sites? Bring it on.