Category: Intellectual Property

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!

Why Internet Archive is in Legal Trouble and Deserves to Be

My last post about the case Hachette et al., v. Internet Archive was angry. Moved by the compelling testimony author Sandra Cisneros wrote to the court, I was and remain pissed off at those who justify what amounts to enterprise-scale book piracy by dressing it up in the rhetoric of progressive lingo and academic theory. Many amicus briefs, authored by familiar names in anti-copyright academia, have been filed in support of Internet Archive.  I could pore over every one of those documents, but the only reason to do so is my admittedly morbid and nerdy fascination with the way each author will try to argue that what IA is doing is already exempted by the Copyright Act. But I ain’t got that kinda time. And it ain’t necessary. Because it ain’t so.

The reason I opined in my last post that this case should be short work for the court is that IA’s arguments boil down to two defenses, both of which should be overwhelmed by the facts and relevant case law. Defense Number One is that the IA lending model called “Controlled Digital Lending” (CDL), a model of its own invention, falls within the exceptions already carved out for libraries by statute. And Defense Number Two is, of course, that the CDL model is fair use, beginning with the claim that it is “transformative” under factor one of the analysis.

CDL: It Ain’t on the Page

Regarding the first defense, the CDL theory may sound reasonable on the surface. A library buys or legally obtains a print copy of a book and scans it to make a digital copy (its own ebook). Then, in principle, the library loans the digital copy to one patron at a time and does not loan more digital copies than it has physical copies in its collection. Additionally, the CDL model asserts that the library should not loan physical and digital copies at the same time.

But IA’s difficulty in defending CDL is twofold. First, there is nothing in the copyright statute that allows the practice; and second, it appears that IA does not even adhere to the boundaries of CDL, if it were allowed. Remember that what triggered this lawsuit was IA’s “National Emergency Library,” when it released over one million titles without restriction, using the pandemic as a rationale for doing so.

IA and its amici will take circuitous paths through Sections 108 and 109 and try to stitch together a rationale for a lending regime that was never anticipated by these sections in the law. In the first part (§108), carve outs for libraries specifically exempt limited conduct like preservation, inter-library loan, certain research activities, etc. But nowhere do any of the exceptions even imply that a library may produce and distribute its own trade-pub ebooks for the sole purpose of bypassing the licensing models under which ebooks are currently loaned. Even more damning is the fact that Internet Archive is not a library under the terms of the statute and, the court may find that it does not even qualify for §108 exceptions, let alone that those exceptions encompass CDL.

As for Section 109, IA and its amici will try to argue that because the original, legal purchase of a physical copy extinguishes the rightsholder’s interest in that copy under the “first sale” doctrine, this somehow extinguishes the copyright rights prohibiting the reproduction and distribution of a digital book made from the same physical copy. This is fantasy. Pull a book off your shelf, scan it, and make it available to the public, and you will violate the reproduction right, the derivative works right, and the distribution right of the copyright owner. That IA is engaged in precisely this activity at scale is normally described as enterprise piracy, not library lending.

But even if CDL were permissible by law, the allegations in the publishers’ motion for summary judgment (MSJ) about IA’s operations suggest that the organization is not even complying with the “controlled” part of the regime. The publishers MSJ avers …

Ironically, the many thousands of hard copy books IA obtains from defunct colleges or libraries will likely end up in “archive facilities in Richmond, CA,” which consist of large shipping containers owned by IA. Once locked away, upon information and belief, IA will make no effort to make the print books available to be read, like books in actual library collections. Instead, the print copies primarily exist to rationalize, or provide the predicate for, IA’s argument that there is a one-to-one correlation between print copies legitimately owned and their illegitimate ebook scanned copies.

So, is there any “control” proving that containers filled with books serve as the foundation for IA’s proper accounting of its digital lending? Even more bizarre is that IA allegedly asserts that its “ownership” of print books includes books on the shelves of “partner libraries.” Again, from the MSJ…

With respect to the Website’s titles for which the corresponding print books are allegedly stored at partner libraries, it defies reason that the partner libraries will have the wherewithal to faithfully and consistently remove a book from circulation each time it is borrowed on the Website, and put it back on the shelf when the Website version is checked back in.

You see where that’s going, right? If IA “partners” with enough libraries, it would then justify mass distribution of the ebooks it makes and, apparently, without any control whatsoever. So, even if a court held that the CDL concept falls within the exceptions in the Copyright Act (and this is highly unlikely), these are just two of the facts presented in the publishers’ MSJ indicating that IA is not in compliance with its own theoretical practice. And, naturally, the implications do not stop with books. After Brewster Kahle’s “New Library of Alexandria” swallows the entire commercial market for ebooks, music, motion pictures, video games, etc. would quickly follow. So, assuming the argument that “CDL is legal” winds up skidding hard against the language and intent of the statutes, let’s talk fair use.

Stop Me if You’ve Heard This One

Internet Archive alleges that its conduct is fair use, which is amusing and should easily be denied based on more than one precedent in the same circuit. I say amusing because Internet Archive’s mission is a crusade predicated on the devout certainty that this part of its operation is permitted within the statutory exceptions for libraries. But just in case that argument fails, IA will plead fair use. I mean, yeah. It would be bad lawyering if they didn’t. But it’s still funny.

In the simplest analysis, IA’s conduct exceeds the boundaries established by the Second Circuit in Google Books and which was reaffirmed in ReDigi and TVEyes. The Google Books opinion begins with the statement, “This copyright dispute tests the boundaries of fair use.” And that was Judge Leval, who wrote the paper introducing the doctrine of “transformativeness” to the fair use analysis. There, the Google Books search engine, which necessitated digitizing millions of books, was held to be “transformative” under factor one of the analysis because it “added new utility” (i.e., a research tool the world did not have). But essential to that holding was the fact that Google Books does not make whole, in-copyright books available to the public. As the opinion states …

With respect to the first factor test, it favors a finding of fair use (unless the value of its transformative purpose is overcome by its providing text in a manner that offers a competing substitute for Plaintiffs’ books …

That “competing substitute” language is fatal to IA’s argument that it is “transformative” under the same “new utility” doctrine. In fact, because IA clearly provides a substitute for licensed ebooks, it cannot reasonably argue that it provides a new utility at all. It simply provides unlicensed digital books in lieu of licensed digital books. Indeed, enterprises more innovative than IA (e.g., TVEyes) have tried to argue “transformativeness” under the Google Books utility doctrine, and they have failed by the light of the same market substitute boundary.

When your only innovation is giving away for free that which the copyright owner intends to sell, there is nothing fair use offers as a defense. In the fair use analysis, there is always a strong interplay between factor one (purpose of the use) and factor four (potential market harm), but here the questions are almost identical because IA’s purpose is nothing more than market substitution.

So, Internet Archive will continue to make noise on Twitter and elsewhere. It will continue to portray itself the underdog, standing in the shoes of all librarians against the juggernaut of the publishing industry. And it will continue to elide or distort the authors’ interest in the narrative. But as a legal matter, for the reasons stated, I think IA should lose, and lose big. And that will be just fine for real libraries because real libraries do not engage in the conduct alleged in this case. And that will be the subject of a future post.

Photo source by: Janpietruszka