Category: Culture

If the Campaign Targeting eBooks is Reasonable, Why Lie About Copyright Law?

With the court’s unequivocal decision in Hachette et al. v. Internet Archive, and the continued failure of ebook legislation in various states, it is time for policymakers and librarians to understand the reason why this two-pronged campaign against copyright rights in ebooks is losing—because the academics, organizations, and lobbyists behind the effort are lying. Yes, that’s a big accusation to make about anyone, let alone professors at Harvard, Berkeley, Georgetown, etc., but what does one call disinformation in the service of an agenda?  Alternative facts?

In a recent example of the kind of dissembling scholarship being used in this campaign, Professor Michelle Wu, whose early work was seminal to the theory called Controlled Digital Lending (CDL), wrote an editorial for The Nation criticizing the court’s March 24 decision in Hachette. The CDL theory was the foundation of IA’s fair use defense, which the court rejected on all points, just four days after oral arguments. But rather than address the case law or merits in the decision, Wu claims the court simply does not understand the nature of American copyright law itself …

While Judge John G. Koeltl’s opinion addressed many issues, all his reasoning was based on one assumption: that copyright primarily is about authors’ and publishers’ right to profit. Despite the pervasiveness of this belief, the history of copyright tells us something different. What persuaded early state and federal government actors to establish copyright was authors’ reluctance to release their books publicly without the ability to stop the then-rampant piracy by publishers. The lack of copyright, then, was seen as a barrier to information reaching the public, and lawmakers enacted copyright to remove that barrier. This societal purpose is reflected in the wording of the Copyright Clause of the Constitution, which makes the spread of knowledge its goal, with copyright merely being a means to achieve that end.

That is a C- answer on a copyright history test. Wu’s implication that copyright was adopted at America’s founding period without regard for the author’s pecuniary interest, and for the sole purpose of spreading information is as thoroughly belied by the historic record as IA’s fair use defense was emphatically rejected by the court. At the very least, the two considerations were given equal weight, as described by Professor Jane Ginsburg in her paper A Tale of Two Copyrights.

To be sure, the American framers saw patent and copyright law as generally beneficial to the new nation, and men like Joel Barlow (inaptly cited by Wu) wrote encomiums on the subject, noting authors’ fears of unscrupulous publishers as one rationale for legal protection. But the conviction that the author was naturally entitled to the fruits of his labor was alive in copyright history—in England, Europe, and America—by the time the Constitutional Convention dipped the first nib in an inkwell.

Subsequent to the doctrinal kerfuffle in England known as the “Battle of Booksellers,” which culminated in 1774,[1] American copyright history, from Noah Webster to the suffragettes to the congressional record and international agreements, is abundantly concerned with the author’s personal and financial interests in the work. In fact, the majority of those state copyright laws to which Wu alludes, prioritized the author’s natural rights as the rationale for legislation, and an early draft by Madison of language that would become the IP Clause provides for copyright as a stand-alone declaration without preamble. I could go on.

If Professor Wu can support her unilateral “spread of information” rationale with more than opinion, she is welcome to do so. Of course, it was necessary to preface her editorial with a false origin story of American copyright—and slag Judge Koeltl in the process—because Wu then asserts that copyright doctrine and practice shifted from what it never was to an unprecedented focus on certain technological changes and to encroach upon consumers’ interests:

Copyright owners did not interfere with the end user. This was the case despite many user activities—such as making mix tapes, converting LPs to MP3s, writing fan fiction, and playing pop music at a piano recital—all technically potential infringements of copyright. Making a mix tape violates the reproduction right (also the distribution right if the tape is given to another person), converting an LP to an MP3 violates the right to make derivative works, and the playing of music at a recital violates the public performance right. The public, Congress, and the courts all ignored these behaviors as normal incidental uses or as instances of “fair use”—the allowance for which was not inconsistent with an author’s rights.

Not quite. First, there is no such thing as a generalized agreement about myriad conduct falling under the fair use exception. More importantly, there is a world of difference between individual, potential infringements, like mix tapes, and the kind of enterprise-scale infringement committed by the Internet Archive. Making over a million books available via the internet has very different implications than the little white infringements committed by individuals, but Wu is intentionally tossing it all into one big stew pot to promote a concept of copyright that does not jibe with fact or law.

Next, Wu alludes to several cases in which rightsholders litigated against technological innovations (e.g., Sony Betamax), and she characterizes these as attempts to improperly extend the copyright owner’s profit interest (profit being a dirty word) at the expense of the consumer’s right to access. I’ll spare readers an examination of each case in context to Hachette and skip to the bottom line:  all those defendants had their day in court, and so did Internet Archive. And it lost on every point. Thus, rather than even mention the legal considerations in Hachette, Wu pivots to the false, general allegation that the court is fundamentally confused about the purpose of copyright. Finally, she claims …

Copyright protects a work—not a format—yet the justification used to stop CDL appears to be that the copyright owner has the right to profit repeatedly from the sale of the same content in a specific format to the same buyer, even if the buyer only ever needs one copy and already owns one copy.

It is almost a deft enough sleight of hand that a reader might miss the trick when Wu pockets the reproduction right, characterizing the manufacture of unlicensed ebooks—literal copying—as format shifting. The reproduction of books is the foundational activity in copyright law, and I am inclined to believe that Wu and her fellow CDL advocates at other fancy law schools know this. So why are they pushing revisionist history to promote a legal theory that may be DOA as of March 24?

Whatever their motives, the practical reality is that policymakers and libraries are having their time and resources wasted by a well-funded syndicate of ideologues and unscrupulous organizations[2] hawking bogus legal theories and doomed ebook legislation in the states. In follow-up posts, I’ll address the status of those ebook bills and discuss exactly what the CDL white paper of 2018 proposes and its implications for real libraries.

[1] In Donaldson v. Beckett (February 22, 1774).

[2] EFF, Fight for the Future, Library Futures, Authors Alliance.

Thaler Suit Against Copyright Office Asks for Analog Reading of Statute

Last February, the U.S. Copyright Office rejected the registration application filed by Stephen Thaler for a visual work entitled “A Recent Entrance to Paradise.” Thaler averred that the image was generated by an AI he designed called “Creativity Machine,” and on that basis, the Office affirmed the longstanding doctrine that copyright rights only attach to works of human authorship. In a series of cross motions, Thaler now argues that “non-humans have been authors under the statute for more than a hundred years.”

Broadly, Thaler asks the court for statutory interpretations based on proving a negative—namely that the Copyright Act does not explicitly state that an author must be human, or that an author cannot be non-human. His brief is peppered with examples in which the law does not expressly prohibit a non-human from having an “idea” or making creative “choices.” And he’s right. Nothing in the law makes such statements, but why would it? It is only very recently that law—and not just copyright law—must confront issues presented by sophisticated machines capable of performing functions ordinarily reserved for humans.

Prior to the present moment, it would have been absurd to affirmatively state that works of creativity or invention must be made by human beings. And it is frankly still absurd. Vehicular law does not explicitly state that the rules apply solely to human drivers (though we may have to address this one); marital law does not explicitly state that the parties must be human; and most relevant to this discussion, employment law does not explicitly state that non-discrimination and other rules of fairness apply only to human persons. Employment law is informative because Thaler’s primary claim of copyright in the visual work rests on the Work Made for Hire (WMFH) doctrine on the basis that “Creativity Machine” is the legal equivalent of an employee. But here, Thaler asks the court to read the law both strictly and metaphorically at the same time. Because nowhere in employment law are any rights vested in the analogous employee. For instance, the U.S. Equal Employment Opportunity Commission states:

Under the laws enforced by EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

Title VII does not emphatically state that those qualities must describe human persons, but if we look to the definition of “persons,” we find …

The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-­stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 [originally, bankruptcy], or receivers.

So, if we are following Thaler’s supposedly rigorous statutory interpretation, we can end the discussion by noting that there is no mention of computers, algorithms, machines, robots, etc. to support the argument that “Creativity Machine” is an employable “person” as an operation of law. Indeed, even the non-human entities in the definition above do not exist except as various means to organize the work or interests of human persons, and this is relevant to the copyright question presented.

While it is true that entities like corporations can own copyrights, the rights themselves do not exist until the moment of fixation of a human’s conception and the result of a human’s effort. Until then, there are no rights which may be transferred to the entity—either by independent or employment contract. Human authorship is not removed from the production of the work by the administrative formalities entailed with corporate ownership. On the contrary, human authorship must occur in order for the rights to exist at all.

This same principle applies to Thaler’s semantic game alleging that pseudonymous or anonymous works become works of non-human authorship merely because the term of protection is no longer based on the lifetime of the author. This makes no sense. Does Thaler argue that works made prior to the 1976 Act were not works of human authorship simply because they were protected under fixed terms unrelated to the life of the authors? He is conflating administrative rules (which are admittedly more complicated than necessary) with the doctrine of human authorship, which predates those rules by a few centuries.

Simply put, there is no concept of copyright law anywhere in western culture in which the utilitarian purpose of incentivizing authors to produce and disseminate works is not intertwined with the principle that the fruits of intellectual labor are the property of the author as a matter of natural right. The hyper-utilitarian view often overlooks the natural rights vested in the author, but the bundle of rights codified in Section 106 of the Copyright Act are as intangible and violable as any other civil right articulated by statute.  And such rights do not exist without humans.

Thaler and others are free to invoke philosophical debate as to whether an AI can have “ideas” or make creative “choices,” and it’s all fine chatter for a round of drinks, but even if it could be proven that the AI is “conscious enough” to make a choice to create and how to create, this is irrelevant as a matter of law. And we do not even need to confront AI per se. An elephant can make a painting, and a circus can own an elephant, but the circus cannot claim copyright in the painting as a WMFH because neither copyright rights nor an employment agreement exists between elephant and circus. And this is because no rights—copyright or otherwise—exist for the elephant that give her standing in court.

Personally, I believe the courts have gone too far in blurring the line between corporate and human personhood—e.g., vesting Hobby Lobby, Inc. with the right of religious exercise, but even in that controversial case, human persons, as owners of a closely held company, remain at the center of the finding. This is not so in Thaler’s claim of copyright in the visual work at issue. “Creativity Machine” is not a “person” by any statutory definition and cannot, therefore, have agreed to an employment contract in which it was understood that the employee would produce visual works under the WMFH doctrine. It is an absurdity on its face scratching at pencil shavings of statutory meaning, and Thaler’s appeal to history does him no favors.

I suspect the courts will find Thaler’s reading of the law to be untenable and will further advise that only Congress can change the Copyright Act. And if Congress were to do so in this context, I would hope that they affirmatively state that authorship must be human. If elephants don’t have such rights, why should robots?

Robot image by: sarah5

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