Category: Intellectual Property

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.

NFT – The Hottest Trend in Ripping Off Artists

By now, even people who don’t follow copyright and crypto stories may have read somewhere that a crypto group called Spice DAO purchased a rare copy of Frank Herbert’s Dune for €2.66 million and then announced its intent to make the work publicly available, produce an animated series, and promote derivative works. The group also floated the notion of minting each page into an NFT, burning the book while video-capturing themselves doing so, and then minting the book-burning video into an NFT. (Nice to have so much time on one’s hands.)

https://twitter.com/TheSpiceDAO/status/1482404318347153413

Since the initial tweet on January 15, Spice DAO has been smacked around the internet by even legal laymen reminding the group that the purchase of a copy of a work, even a rare and old copy, does not transfer any rights to do anything whatsoever with the underlying material. If these guys really spent that much money on the book expecting an ROI based on any their stated plans, they should quit while they’re behind. The lawsuits they have already implied would cost a more than they’ve spent so far.

Meanwhile, Spice DAO’s stated intent to mint NFTs out of material they do not have the right to reproduce brings me to the reason I am finally saying anything at all about this crypto trend that’s been making noise for almost two years. Although I have often been asked about NFT art and copyright, I have been reluctant to write a post about the topic, mostly because I wanted to avoid writing that obligatory paragraph describing what an NFT is while pretending that any explanation makes sense. Like the rest of you, I have read definitions of NFTs in various places—critical, analytical, and promotional—but find it impossible to believe that the virtual trading floors exchanging NFTs do not represent an irrational market, buying and selling smoke.

It’s a digital record of a transaction that lives on the blockchain …

… when someone buys an NFT, they’re not buying the actual digital artwork; they’re buying a link to it.

It’s a digital certificate for intellectual property and is stored on the blockchain.

And so on.

Seriously? Are we all pretending that any of that means anything? A parable about the Brooklyn Bridge comes to mind, but in that scenario, at least there’s an actual bridge the huckster does not own. But okay. Even if the NFT market is not just another free-for-all invented by tech bros to sell to the Court of the Naked Emperor, it is clearly the coolest new way to rip off artists. As Kevin Collier wrote on January 10 for NBC …

Last week, an unidentified user on OpenSea, the dominant marketplace for the burgeoning NFT art market, started putting tens of thousands of listings of [Aja Trier’s] work, often duplicates, up for sale. Thirty-seven of them sold before she was able to convince the platform to take them down.

Tell me how this was not inevitable. If literally anyone can mint and upload an NFT to a trading platform like OpenSea, of course thieves are going to grab artworks they “find” online and do exactly what Collier’s article describes. After more than twenty years of creative works being used without permission online and enriching the platforms on which they are being used, this black-market trade in NFT art finally sheds all pretension of respect for the artist’s right to control and monetize her own work as she sees fit. Collier adds …

Trier’s story has already become common in the burgeoning world of NFT art sales. RJ Palmer, a San Francisco artist who designs creatures and monsters both as commissioned digital works and for movies and video game companies, said issuing takedown requests to NFT platforms for his work became a daily routine before he eventually gave up.

Whack-a-mole 3.0? If making artists give up on their rights was not the intent of network effects, it sure as hell is a byproduct. Creators find it both daunting and depressing to discover dozens, or hundreds, of unlicensed uses of their works online, but to now find the works explicitly being sold without permission is a whole new level of predation. Collier’s story reports that OpenSea is valued at over $13 billion, which is its own kind of crazy, but it is astounding that these platforms are not responsible for validating the provenance of the NFTs being offered.

I say astounding but, of course, it’s not surprising. In fact, the most obvious absurdity that leaps out at the moment is this:  the NFT enthusiasts have been brosplaining to artists that this is a crypto-currency solution to their woes—a new method of validating ownership in their work, and one that might even replace copyright. But aside from the fact that copyright does a lot more than validate ownership, how can the NFT serve as a means of validating ownership if the market allows any jamoke with a computer to mint and trade NFTs made from art they don’t have rights to use in the first place?

Presumably, the Spice DAO group with the rare Dune copy is exactly as naïve as their public statements imply. If so, that story is mostly a laugh. The Herbert estate can adequately address infringements of the work, if they arise. But for the artists mentioned in the NBC story, and creators even less well-known, having their art appropriated and sold as NFTs without their permission isn’t the least bit funny. In fact, one might even call it a crime.

Photo by: justlight