Category: Intellectual Property

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.

A Sound First Amendment Decision with an Odd Fair Use Kicker

A couple of weeks ago, in my post about ghost guns and trademark infringement, I argued that the EFF is wrong to defend the anonymity of the parties who flaunted their alleged infringements on Twitter. In that case, the individuals had manufactured DIY guns (ghost guns) in collaboration with the materials and tools provided by Defcad, Inc.; they had affixed their weapons with both word and design marks owned by the gun-control advocacy group Everytown For Gun Safety; and they had posted images of their products on social media along with deprecating comments about Everytown.

Because there appears to be a triable issue of trademark infringement in which the Doe defendants are plausibly implicated, I disagree with EFF’s view that the anonymous individuals used the marks for the sole purpose of protected speech. Consequently, pursuant to Everytown’s claim of infringement, its interest in discovering the identities of those individuals is reasonable in that light.

I further argued in that post that considering anonymity as coextensive to the speech right should be weighed on a case-by-case basis, and in that example, it is absurd to allege that anonymity is necessary for the general expression of anti-gun-control views in this country. There, the plaintiff has reason to argue that anonymity is merely a strategy by Doe defendants to avoid liability rather than a means of protecting their First Amendment rights.

A Poor Use of Copyright Law

By contrast, a colleague brought a new matter to my attention recently in which a wealthy claimant of questionable nature sought to use copyright law and the provisions of DMCA Section 512(h) to expose an anonymous critic—and apparently for no purpose other than to expose and intimidate the critic. No doubt, somebody will cite this story as an example of a powerful figure “weaponizing copyright” to stifle the speech of a defenseless individual, and that’s one reason I’m writing about it. Because let’s be clear:  copyright advocates don’t appreciate copyright law being used for purposes other than to protect creative expression and promote the progress of same.

This case involves an anonymous blogger who devotes his/her energy to mocking or criticizing the uber wealthy and politically powerful, including Jeff Bezos, Elon Musk, Nancy Pelosi, et al. I have neither an opinion about, nor interest in, the content of the blogs or tweets, as there is no question that anyone, whether anonymous or not, is free to criticize anyone else, especially public figures. But apparently, this party got the attention of billionaire Brian Sheth …

In a series of six tweets accompanied by photos, an anonymous Twitter user who goes by @CallMeMoneyBags criticized Brian Sheth, a private-equity billionaire. Within a few weeks of the postings, a mysterious entity called Bayside Advisory LLC registered copyrights in the photos, petitioned Twitter to take them down, and served a subpoena on Twitter for information identifying the person behind the @CallMeMoneyBags account.

That summary is at the top of the California District Court opinion denying Bayside Advisory’s subpoena to compel Twitter to unmask MoneyBags. Bayside had made the request under DMCA Section 512(h), which allows a copyright owner to compel an OSP to disclose the identity of an alleged infringer without first filing a claim against a Doe defendant and later pursuing the party’s identity in discovery.

The rationale of the statute, when all parties are acting in good faith, is that a copyright owner with a sincere intent to protect his rights, should want to identify an alleged infringer before deciding how or whether to remedy the matter. This knowledge can benefit both rightsholder and alleged infringer. But the presumption should be the contemplation of a meritorious claim of copyright infringement and not merely an intent to expose the anonymous speaker for other purposes. That should be the only reasonable basis for enforcing the subpoena to unmask a Doe defendant under Section 512.

Here, the available facts imply a narrative in which Bayside, a party with potentially limitless resources, is misusing copyright law for the sole purpose of exposing and censoring a critic. The entity LLC appears to have been formed exclusively for the purpose of hastily acquiring the rights to the six photos at issue and then registering the works with the Copyright Office after the alleged infringement of the images by MoneyBags.[1]

Although 512(h) allows a subpoena without first filing a claim of infringement, the court clarifies that the statute expressly states that the provision is subject to Federal Rule 45 and that, “A recipient of a DMCA subpoena may therefore move to quash on the basis that the subpoena would require disclosure of material protected by the First Amendment.”

Views will vary as to whether the First Amendment encompasses a right to speak anonymously. The EFF and similar organizations seem to think it always applies; others may say it never applies. As stated in that ghost gun post, I believe it depends on whether anonymity is reasonably necessary to protect the speech at issue and whether the speech itself may not be protected, which it is not if it amounts to copyright infringement.

In this instance, the resources and legal maneuvers the claimant appears willing and able to exploit merely to silence personal criticism makes a strong case for a nexus between the speaker and his/her anonymity. This is further emphasized by the court’s reasonable inference that Sheth is hiding his own identity behind the LLC, the website for which just happens to be a one-pager with no clear purpose.

If the Court were assured that Bayside had no connection to Brian Sheth, a limited disclosure subject to a protective order could perhaps be appropriate. But the circumstances of this subpoena are suspicious. As far as the Court can tell, Bayside was not formed until the month that the tweets about Sheth were posted on Twitter.  

Suffice to say, the complaint reeks of shadiness and a deplorable use of one fragment of the Copyright Act for a purpose that appears to have nothing to do with copyright. Based on the limited facts available, I believe the court acted correctly in finding that the First Amendment considerations outweigh Bayside’s dubious intent in exposing MoneyBags’s identity.

But About That Fair Use Analysis!

Bayside alleged that “to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the court states. I’ll be honest and say that I have no idea what Bayside is driving at here, and perhaps it is naïve about the circuit in which it attempted this argument.

Nowhere does the fair use exception “wholly account” for the First Amendment interests of a defendant, but here, Plaintiff invites a court in the Ninth Circuit to embark on a fair use analysis, which it should have declined in this instance. The court had already established a rationale for denying the subpoena and did not need to conduct a fair use consideration as though this were a case at the summary judgment phase with sufficient evidence presented. Nevertheless …

In response to Bayside, the court noted that it is bound by circuit precedent in Lenz, it calls fair use “colloquially an affirmative defense,” and then it states, “To make a prima facie case of copyright infringement for the purposes of obtaining a subpoena, then, a party must make a prima facie case that the infringing use did not constitute fair use.” And then, to add insult to speculation the court committed that chronic error in fair use factor one, writing …

… the use is transformative. Considered on their own, the copyrighted photos may have aesthetic value. But MoneyBags was not using the photos for their artistry. Rather, by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters.

The court’s reasoning here is incorrect as a matter of law, especially without sufficient facts presented to consider the matter more fully. But based on that paragraph alone, the court errs when it opines that commentary about the subject(s) in a photograph is inherently “transformative” and, therefore, favors a finding of fair use. Such a generalized rule would excuse nearly any media company from licensing photographs simply because editors add captions and display images along with articles composed of text.

The court had not only found a basis to deny the subpoena, but it further stated that based on the record of plaintiff’s conduct that, “… even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.” That being the key finding, it makes even less sense that the court engaged in a half-blind fair use analysis and added yet another poor example of “transformativeness” to that circuit-splitting tapestry of opinions.

Independent copyright owners, who truly make a living from creative work, have a hard time protecting their rights as it is. Misuse of copyright law by wealthy and powerful individuals is both offensive and unhelpful in that it gives the anti-copyright ideologues and policy wonks grist for their mill. They cite these stories under general headlines like “copyright is broken,” and then the internet does its thing. At the same time, it is also unhelpful to the vast majority of creators when courts are tempted into fair use discussions that are speculative to the point of whimsy.

[1] The lack of timely registration is a barrier to litigation for most copyright owners because it precludes statutory damages and attorney’s fees, but if money is no object, and the intent is to censor rather than protect copyright rights, then timely registration is moot.

 

Maybe Don’t Talk About Your CCB Claim on Social Media

The copyright small-claim alternative, adjudicated by the Copyright Claims Board (CCB), was intentionally designed to accommodate pro se participants, meaning that both claimants and respondents can represent themselves without hiring attorneys. After all, the foundation of small claims court or alternative dispute resolution is to save money. And indeed, we are seeing some early pro se claimants file complaints with the CCB, which began accepting claims on June 16th.

It occurred to me while co-moderating a copyright page on Facebook because, of course, social media encourages a habit of saying or asking everything that comes to mind. But one aspect of legal training the copyright owner/claimants, or for that matter defendants, likely do not have is the discipline to keep mum about an active case. Or at least what should and should not be discussed publicly.

Asking questions or making statements about administrative procedures related to the CCB are safe topics to discuss in public, but parties to a case should remember that it is a legal proceeding with a discovery process. That means anything you say about the facts pertaining to the case itself—including intentions, timelines, beliefs, etc.—may be discoverable and may be entered into evidence by the opposing party. And announcing, griping, gloating, or just describing these matters on social media makes discovery very easy for the opposing party.

This is not to suggest that either claimants or respondents are going to lie or have much to hide of any relevance to a typical CCB case. But if you are a party on either side, it is just good practice to do what an attorney would tell you to do and simply not talk about the case publicly until it’s resolved.

Keeping this discipline could prove difficult for some. Both alleged infringers and anti-copyright ideologues are known to at least insult, if not harass, copyright owners looking to enforce their rights. “Greedy” may be the kindest thing someone calls you, but don’t take the bait, don’t feed the troll, and don’t talk about your case until it’s over. By the same token, if you’re the claimant and you’ve filed a CCB claim, it’s probably not a good idea to also engage in that odd form of digital-age justice generally called “shaming.”

The copyright antagonists want to see the CCB fail. As copyright owners and advocates, we want the small-claim alternative to work, and work in a serious and fair manner grounded in the merits of claims and defenses. As such, both for your own sake and the overall effectiveness of a brand-new system, if you are party to a claim, it’s a good idea to exercise some social media discipline and keep most of the conversation about your case to yourself.