Category: Law & Policy

No, the Maus Ban is Not an Excuse to Weaken Copyright

Naturally, I join the outrage directed at any school board that would presume to ban a book—let alone because they don’t want students to confront the traumas of history—but I am almost as offended by the self-proclaimed defenders of culture in the anti-copyright crowd. How dare the McMinn County Board of Education ban Maus? But at the same time, how dare anyone write this?

Really? The survival of culture depends on libraries owning ebooks?

Yes, the tweet was posted by the same Maria Bustillos who inspired my last post about the library associations’ anti-copyright agenda, and I certainly do not mean to pick on her alone. On the contrary, I wouldn’t bother with that tweet if its fallacies were not endemic among organizations with the power to lobby legislatures. It is a sentiment within a hubristic narrative which asserts that, if not for copyright getting in the way, digital repositories like libraries would keep culture burning like a flame amid the forces of darkness. More specifically, Bustillos et al ask us to believe that libraries owning, rather than licensing, ebooks would serve as a hedge against censorship. But how?

If the Tennessee school board, and other officials who behave likewise, are indeed riding a wave of illiteracy toward authoritarianism, it is certain that those forces will not leave the libraries intact either. Moreover, if that is where we are headed as a nation (and there days we all wonder), forget the ebooks and prepare for civil war. But if that dire outcome is not what we are talking about, and we are instead witnessing just another sad example in a long history of bumbling, mouth-breathing attempts to ban books, then we can temper the “protect culture” language because it looks like the “evil” commercial market has got this one.

I admit it has been satisfying to watch the sentiment in that tweet wither in the sunlight of Maus topping best-seller lists in response to the Tennessee school board ban. Whether this groundswell is borne of curiosity to read a banned book or a desire to raise a middle finger at the censors (doubtless it is both), the entire narrative is an endorsement, not an indictment, of Art Spiegelman’s copyright rights. After the assault on the Capitol, I wrote a post reaffirming a claim I had made in 2013 that “A great bulwark against tyranny would be a class of unusually wealthy poets.” In principle, the consumer response to the Maus ban is exactly what I had in mind.

Libraries are wonderful institutions, but enemies of culture have a habit of burning them down. Or in the case of America’s public libraries, they can simply defund them as easily as they remove books from school curricula. Ebook collections in libraries are not a bulwark against that kind of wanton destruction, but empowering authors and artists with certain property rights in their work and, yes, money remains a powerful mechanism for keeping the philistines at bay.

What Kind of Writer Indeed?

In a recent post entitled What Kind of Writer Accuses Libraries of Stealing?, Maria Bustillos stakes out a wide swath of moral high ground in defense of Controlled Digital Lending (CDL). CDL is a theory that libraries are allowed, within the boundaries of U.S. copyright law, to scan physical copies of legally obtained books and then loan the digital copies to one reader at a time, controlled by technical measures to prevent theft or unlicensed distribution.

Conceived by legal scholar and librarian Michelle Wu (and advocated by library associations and anti-copyright ideologues alike), CDL looks reasonable on the surface but is actually more complicated than Bustillos et al either recognize or are willing to admit. Nothing wrong with having an opinion, of course, but to pretend that the ebook market is not distinctive and then call anyone who points to the complexities “greedy and unethical” is just foot-stomping.[1]

In that spirit, Bustillos’s post is a response to a Twitter squabble that began with some pushback by Neil Turkewitz to her tweet praising the Internet Archive and defending CDL. Turkewitz tagged authors John Degen and T. J. Stiles along with the Authors Guild, which Bustillos refers to as summoning “a brigade,” and after describing her interactions with Stiles and the AG, she writes …

As a lifelong fan and beneficiary of libraries, as well as a working writer, I find the suggestion that libraries are trying to steal from writers very very offensive. I see no evidence for it. CDL doesn’t “devalue the labor of working authors” in the slightest. It protects and helps us, by codifying simple rules for preserving our work, and making it legally available to the public to try out through libraries.

Based on that paragraph, I would assume that Bustillos is unaware of, rather than intentionally obfuscating the much broader copyright narrative in which CDL is a small fragment. Certainly, she reveals more attitude than understanding when she writes that the Authors Guild litigation against Hathi Trust (2013) is “at heart” the same issue in the lawsuit filed by the publishers against Internet Archive (2020). Because the cases are not comparable.

Hathi Trust created a searchable database and made certain works accessible to persons with disabilities but did not make whole works under copyright available to the general public. By contrast, IA is being sued because it arbitrarily distributed over a million in-copyright books without license or even the controls called for in CDL. The irony here is that if Bustillos, or anyone else, wants to assert that CDL is narrow and reasonable, IA is the last organization to cite as an ally because it did not even respect the boundaries of CDL—and because IA founder Brewster Kahle’s anti-copyright vision is expansive. But Bustillos reveals that perhaps her sights look beyond CDL as well when she writes …

The trend started with software—you used to be able to own Photoshop and Office, but now you have to rent them—and has spread to movies, music and other media. The perpetual annuity model, needless to say, is very popular with Wall Street. Available evidence suggests that the endgame here, too, is eventually to go over entirely to a books-for-rent model.

Here again, Bustillos expresses more attitude than cogent argument that has much, if anything, do with CDL. It’s true that we now license, for instance, Microsoft Office month-to-month instead of purchasing the software, but price-wise, it’s about the same or less than it used to be, and overall convenience and security is generally better than the days when we had to buy upgrades delivered in boxes full of disks.

More to the point, ebooks are not comparable to software vis-a-vis upgrades, etc., but that’s why I highlighted the paragraph—because Bustillos is making a loose comparison for emotional impact rather than presenting a serious case for her position on CDL. Moreover, she endorses, perhaps inadvertently, an enthusiasm for CDL which is not limited to the mechanisms in that proposal but is intertwined with a broader criticism of licensing regimes throughout the digital market.

Speaking of apples and oranges, Bustillos inscrutably contrasts Neil Gaiman’s 2011 observations that piracy led to discovery and sales of his books against comments by Degen and Stiles about CDL in 2022. She cites Gaiman to make the point that lending books, especially by libraries, should not be seen as lost sales. This is generally true but is also a misdirection away from the crux of the debate over the mechanisms proposed by CDL—to say nothing of the broader anti-copyright strategy of which CDL is one prong. Further, it shows poor taste to cherrypick an unrelated comment made by a multimillionaire author (because he has greatly benefitted from the copyright system) in order to disparage authors of more modest income, who are intimately engaged with the copyright narrative nearly every day.

Perhaps Bustillos is unaware of the broader agenda being pushed by the scholars, ideologues, and lobbyists with whom she is breaking bread in her post. Even if CDL were a modest and simple proposal on its own, it almost doesn’t matter at this point because the library associations are engaged in a multi-level campaign against core principles of copyright law, and which would affect more than ebooks.

As discussed recently, the library associations have lobbied for legislation in six states proposing compulsory licenses for ebooks in a manner that is so clearly preempted by federal law that New York’s governor already vetoed its bill on that basis alone. So, why are these groups spending millions to pass legislation that is doomed to fail on constitutional grounds? Probably because failing in the states is a well-known path to lobby Congress to change the federal law.

So, as long as we’re fighting over the moral high ground, let’s consider the cost to state taxpayers to pass and defend ill-fated legislation and then compare that to the cost of ebook licensing from which the taxpayer is allegedly being rescued. Quick math:  400 titles x $32 per title/year x 25 library systems = $320,000/year per state. [2] What will Maryland spend to lose the lawsuit it now faces with the publishers over enforcement of its ebook bill?

I’m not saying I know exactly how the numbers shake out, but the library associations et al don’t present their economic complaint in economic terms in the first place. Like Bustillos, they generally vilify publishers, ignore the complexity of a system that includes many kinds of authors, and pretty much make a hash of copyright law in the process. The one thing Bustillos said with which I do agree is that Twitter fights are generally useless, but then I don’t know why she said that as a prelude to writing a long Twitter rant expressing more dudgeon than knowledge regarding these issues.

[1] Read Section 108 of the Copyright Act sometime, and if you don’t fall asleep, you will notice the strict and narrow conditions under which libraries are allowed to make or distribute copies of certain types of works.

[2] For reference, NYS has 23 library systems.

Would You Fall for the Anti-SOPA Campaign Today?

“The more desperate one is to get attention, rather than to accurately communicate what one believes a problem is, the more one ventures into the realm of sensationalist propaganda.”

That observation was not written about anyone promoting the Stop the Steal narrative that led to the insurrection on January 6, 2020. No, that’s Chris Ruen, in his book Freeloading (2012), describing Fight for the Future co-founder Holmes Wilson trying to come up with a line to rally support among Redditors for American Censorship Day in November 2011 to protest the anti-piracy bills SOPA/PIPA. According to Wilson’s own description, as quoted by Ruen, he eventually grabbed readers’ attention with this lulu: “The MPAA will soon have the power to block American’s [sic] access to any website unless we fight back, hard!”

There was zero truth in that statement. And although FFTF is terribly concerned about the power of social media today, for instance, Facebook’s role in fostering the events of January 6th …

…the organization is not likely to acknowledge that ten years ago, they and their friends in the “digital rights” world exploited the same manipulative tools and the same human flaws in what was arguably the first misinformation campaign to succeed at scale.

Hyperbole like Wilson’s headline naturally went viral and accreted even more outlandish claims as the Stop SOPA crusade gained momentum through the end of 2011 and culminated on January 18, 2012 with “Blackout Day.” The idea, hatched by Wikipedia founder Jimmy Wales, perhaps imagining himself as John Galt, was to get prominent websites to go dark on a single day and show us what a post-SOPA internet would allegedly look like. Wales also went on TV as the erudite and magnanimous representative of “the internet” and wove a crazy quilt of lies about SOPA/PIPA causing harm to free speech online.[1]

Behind the scenes, death and rape threats (a common feature in any digital-age campaign) were directed at female congressional staffers and other women in pro-copyright organizations, along with the predictable spate of DNS attacks against the websites of any organization that dared voice support for—or even just try to explain—the legislation. Relatedly, it is not a minor footnote that the Stop SOPA folks reached out to 4Chan, which Wilson described as “awesome,” to help push the censorship message.

Today, many readers know 4Chan as a site where misogyny, racism, and legit fascism intersect with bored adolescent boys and hackers espousing a broad spectrum of moral relativism. The output of this crucible has often been a prankster/hacktivist hybrid in which the motive for action may be nothing more than a laugh (aka for the lulz). 4Chan begat 8Chan, and 8Chan begat QAnon. And my point is not that the anti-SOPA organizers spawned Q but rather that it is significant that both January 18th and January 6th were, in part, fueled by tapping into this nebulous digital underworld.   

Above ground, Google, Mozilla, the Electronic Frontier Foundation, and other organizations with internet-industry resources, coordinated and directed a deluge of messages that jammed phone lines and clogged email servers on Capitol Hill, leading Congress to abandon the SOPA/PIPA legislation in a bipartisan group shrug, with staffers and Members mystified as to what exactly had just happened. In the days that followed, some Members even reported that upon returning to their districts, they discovered that constituents had not only not protested SOPA, but that they had never even heard of it.

January 18th is also something of a tenth anniversary for this blog, which first launched in August 2012 but really began with an editorial in The Hill in which I called support for in the anti-SOPA campaign Pavlovian and dysfunctional. At the time, I wrote that “I believe we are seeing the most extreme, most egotistical voices — from the Tea Party to Anonymous — aiming not for change, but to dismantle the system itself.”

Notice that says nothing about media piracy. Piracy was secondary. It was the mechanisms of the anti-SOPA campaign that scared the hell out of me. Worse than the specific lies about the legislation was the bigger lie being promoted by the “digital rights” groups, telling the world that Stop SOPA represented a new model for grassroots activism in which the people are finally empowered by real information and social platforms. In truth, these groups simply showed us how easy it is to rally thoughtless action with little more than some provocative bullshit on a web page.

Wilson posted that nonsense about the MPAA and site-blocking in November, and by January, a virtual mob that knew nothing about what it was protesting stopped Congress in its tracks. Fast-forward to the era of Trump, and a different breed of unscrupulous provocateur, including one calling himself Q, post even more outrageous lies online, and by January, a physical and violent mob tries to stop Congress in its tracks. If we believe there is an ethical chasm between Q and Wilson, it’s because we are overlooking the fact that this is the same disease causing different symptoms.

There is little difference between the fearmongering declarations, “Fight like hell, or you won’t have a country anymore,” and “Fight like hell, or you won’t have an internet anymore.” Convince people that someone is trying to rob them of their liberty—End piracy. Not liberty. was Google’s message in 2012—and you just might start a riot. And during this interval between the first anniversary of January 6th and the tenth anniversary of January 18th, I truly doubt that anyone intending to memorialize their role in the latter would ever acknowledge their insidious contribution to the former.

In a healthy democracy, the means are always more important than the ends, and the inversion of this principle—that it’s okay, even admirable, to lie like hell as long as you win—is the underlying pathology driving both decorum and integrity to the margins of our political discourse. The vector bearing the pathogen is social media, a force which was not so widely understood in 2012 as an addictive, dopamine-inducing activity that neutralizes reason while feeding emotion. That was the human frailty exploited by the professional anti-SOPA crowd ten years ago. And considering all the destruction that misinformation has done to the world since, I cannot imagine why anyone would want to celebrate that travesty of a milestone.

[1] For instance, the legal remedies in SOPA/PIPA have been applied in different ways both prior to and since the defeat of the bills without any effect on the speech right.