Category: Intellectual Property

Allen v. Cooper Revisited Part I: State of Play

Ever since the case Allen v. Cooper first appeared on my radar, and especially after the Supreme Court handed down its decision in late March, I have been admittedly a wee bit obsessed with the subject of state sovereign immunity (a.k.a. Eleventh Amendment immunity). What is Eleventh Amendment immunity? In a nutshell, it means you cannot sue a state (including arms of the state, like universities) in federal civil cases. So, if you like tilting at windmills, and mucking about in the dusty attics of American law, as I do, perhaps you will indulge the series of posts I plan to write on this difficult—and what may ultimately prove unresolvable—constitutional challenge to the protection of intellectual property. 

As reported in the post I wrote following the decision in Allen v. Cooper, the majority and concurring opinions, written by Justices Kagan and Breyer respectively, came unusually close to expressing regret that precedent led the Court to the only decision available—affirming that states are free to infringe the copyrights of private citizens and entities with impunity.

Further, the Court all but nudged Congress to have another go at resolving the statutes written in 1990 to intentionally abrogate state immunity in intellectual property suits. “[A] tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice,” writes Justice Kagan for the majority. And in his concurrence, Justice Breyer observed, “Whether a future legislative effort along those lines will pass constitutional muster is anyone’s guess. But faced with the risk of unfairness to authors and inventors alike, perhaps Congress will venture into this great constitutional unknown.” Only Justice Thomas, in his concurring opinion, averred, on separation grounds, that the Court has no business urging Congress to do anything.

In response to the Allen decision, Senators Tillis and Leahy of the Judiciary Committee, on April 28th, sent letters to the U.S. Patent and Trademark Office and the U.S. Copyright Office, stating their concern “about the impact this may have on American creators and innovators.” The letters ask both agencies to “research this issue to determine whether there is sufficient basis for federal legislation abrogating State sovereign immunity….”

Beyond the fact that I personally support the rights of authors and am, therefore, opposed to creative works being freely pirated by state entities, I find the challenge of overcoming Eleventh Amendment immunity an intriguing subject on its own. Perhaps most especially right now, when overlapping, turbulent events in the United States have, in various ways, highlighted the federalist model of the nation.

The concept of state sovereignty, embodied in the Tenth Amendment, though traditionally viewed as a favorite principle of conservatives, has lately garnered considerable attention from a broader swath of the electorate. With a President who likes to claim he has “absolute authority” to do just about anything his thumbs can tweet, we have lately been served a steady diet of legal analyses on the theme of federal versus state law.

So, because the response to Allen reveals a rare moment of synergy, when both the Court and Congress seem to want to prohibit the States from freely infringing intellectual property, understanding why this result was not achieved by three modern laws offers a unique, if frustrating, glimpse into the complex underpinnings of our federal system.

How We Got Here

Article I section 8 of the Constitution lists the plenary powers of Congress, and among these, paragraph 8 (the IP clause) grants the power to enact patent and copyright laws. As articulated in Federalist 43 (Madison), it was anticipated that uniform, federal IP laws would best serve the interests of the new nation; and although there is little record of any controversy about that principle at the founding period, pre-emption of state copyright laws did not occur as a practical reality until the 1976 copyright act.

Meanwhile, an inherent tension was already present with the passage of the first copyright law of 1790 because the jurisdictions for litigation would eventually (i.e. beginning in 1819) be the federal courts. And one aspect of the Constitution that was very controversial at the founding period was the establishment of the federal court system in Article III. Anti-federalists and skeptics of the Plan of the Convention, already anxious about the uncharted boundaries between states’ rights and the new central government, were especially wary that the federal courts might swallow a state’s sovereignty to make and enforce its own laws.

With the Tenth Amendment in the Bill of Rights of 1791, state sovereignty was affirmed as a general principle. But four years later, the South Carolina estate of one Alexander Chisolm filed suit against the State of Georgia, seeking monies owed for materiel provided during the Revolution. When the Supreme Court, in a 4-1 decision, found for Chisolm, it was a big We told you so moment for the aforementioned skeptics of the federal court system. Consequently, the lone dissent in Chisolm v. Georgia, written by Justice James Iredell, served as the predicate for the Eleventh Amendment, passed in 1795. It says:

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

More about Justice Iredell—I think he’s an interesting cat—in a subsequent post. But for now, let’s just say that the Eleventh Amendment can be a troublesome little bug in the Constitution, and not only for IP law. If Congress can pass laws under Article I that are only justiciable in federal court, but states are immune from suit in federal court, a natural question any modern plaintiff might ask is whether contemporary justice is being confounded by antiquated precedent. And there’s an extent to which the answer to that appears to be, Yes, it is.

Not only is the historic lineage of sovereign immunity (i.e. English law dating back several centuries) anathema to democracy, but according to scholar John V. Orth, U.S. state immunity is a vague doctrine at best. He writes, “…the search for the original understanding on state sovereign immunity bears this much resemblance to the quest for the Holy Grail: there is enough to be found so that the faithful of whatever persuasion can find their heart’s desire. And … the object of the search may prove equally illusory.”

That quote was cited in the U.S. Copyright Office Report of 1988, presented to Congress by then Register Ralph Oman, examining the issue of state infringements and Eleventh Amendment immunity. At that time, five district courts had held that the copyright law did not anywhere clearly state that Congress expressly intended to abrogate state immunity from claims of copyright infringement.

Shortly after that USCO report was published, the Supreme Court, in the case Pennsylvania v. Union Gas, held that Congress, pursuant to its rights under the commerce clause in Article I, had the authority to abrogate state immunity. Based largely on the weight of that decision, Congress passed the Copyright Remedy Clarification Act (CRCA) of 1990, along with its sibling laws the Patent Reform Act (PRA) and the Trademark Remedy Clarification Act (TRCA). This trio of IP laws responded to the obstacles presented in those prior cases during the 1980s by expressing Congress’s clear intent to abrogate immunity in suits pertaining to its Article I powers under paragraph 8. But …

In 1996, in the case Seminole Tribe v. Florida, the majority opinion written by Justice Rehnquist overturned Union Gas, stating, “In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government.” In other words, Seminole Tribe held that Article I powers are not sufficient grounds for Congress to abrogate state immunity, which meant that the three IP clarification laws of 1990 now rested on shaky ground.

In Justice Stevens’s dissent in Seminole Tribe, he argued that in overturning Union Gas, the Court “…prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.” Then, in refuting the majority’s interpretation of Chisolm, he added, “For this Court to conclude that time-worn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.”

What About Due Process?

“States…have a ‘specific duty’ not to infringe that [which] ‘is assigned by law’ and upon which ‘individual rights depend.’ One might therefore expect that someone injured by a State’s violation of that duty could ‘resort to the laws of his country for a,’ remedy, especially where, as here, Congress has sought to provide one.”  – Justice Breyer, Allen v. Cooper, citing Marbury v. Madison.

Three years after Seminole, in a pair of decisions known as the Florida Prepaid cases, both the PRA and the TRCA failed, subject to the Union Gas precedent that Article I powers were no basis for Congress to abrogate State immunity. But, also in Florida Prepaid, the question was presented as to whether Congress has the right to abrogate immunity pursuant to its powers under Section 5 of the Fourteenth Amendment, which says that Congress may pass laws necessary to protect citizens’ rights under Section 1 of that amendment, including this right: “nor shall any state deprive any person of life, liberty, or property without due process of law.”

So, again, any reasonable person might ask, if an IP plaintiff can only pursue a complaint in federal court, and state immunity bars access to that court, then isn’t the claimant being denied due process? Well ….  Justice Rehnquist, in considering whether other avenues of due process, like tort or unfair competition, might be available state court remedies, referred to the unlikely prospect of shoehorning IP complaints into those other legal doctrines as “inconvenient” for a plaintiff to attempt.

Further, it had been observed by the Copyright Office and others that even if those state remedies were viable, the resulting caselaw would be a thicket of common law IP precedents, growing like legal kudzu atop the already complex hedgerows dividing the federal circuits. But this difficulty Rehnquist dismissed as an “Article I problem.” The same Article I he opined does not give Congress the power to abrogate state immunity. Anyone who’s ever read Joseph Heller’s Catch 22 may find this passage in Seminole agonizingly familiar. 

Concurrent with the Florida Prepaid decisions, the case Alden v. Maine put another nail in the coffin of Congress’s Article I right to abrogate immunity and, significantly, reiterated that state sovereign immunity was not created by the Eleventh Amendment, but was affirmed by it. That seemingly moot distinction is actually a matter of considerable debate, about which I refer you to the “Holy Grail” comment made by Mr. Orth.

After Alden, a 2000 copyright case, in which author Denise Chavez’s work was infringed by the University of Houston, the Fifth Circuit dismissed on immunity grounds and officially doomed the CRCA to the same fate as the PRA and the TRCA.  In fact, after Chavez v. Arte Publico Press, many experts were surprised that the Supreme Court granted cert in Allen v. Cooper, assuming the questions to be presented were already answered and, for rightsholders, a dead issue. Allen presented a clause-by-clause argument, asserting that the IP clause is distinguishable from other Article I powers of Congress, and although that argument failed, I will discuss it a little further in another post in this series.  And that brings us to where things stand today.

Overcoming Eleventh Amendment Immunity

In 2003, in response to the 1990s defeats of the CRCA et al, Congress again took up the issue, seeking various rationales to abrogate immunity for IP claims against states. Among the arguments presented, one that should be especially irritating to creators, is the fact that a state may own intellectual property, and file suit for infringement, while it remains shielded from litigation, leaving it free to infringe. At that time, this injustice was seen as a possible avenue—to deny states the ability to litigate IP claims unless they waived their immunity accordingly. This was, and remains, a non-starter due to the strenuous objections of state Attorneys General.

Today, despite the Court’s apparent dismay with its conclusion in Allen, the so-called roadmap it drew Congress for abrogating immunity is actually a very narrow path through some pretty dense woods. Based solely on the Fourteenth Amendment, section 5 premise, the Court held that the only foundation for abrogating immunity will have to be based on a preponderance of evidence that there is a pattern of “intentional and reckless” infringement by state entities. This is no small feat. For one thing, nobody can say how much evidence of state infringement would constitute a pattern compelling enough for the Court to sustain abrogation. And the only way to find out is for Congress to pass new laws, and some party to litigate against a state all the way to the Supreme Court.

Further, the evidence needed to show a pattern of “intentional and reckless” infringement may not be available, particularly because the largest entities with the capabilities to obtain that data may not have it anymore. Chris Mohr, VP for Intellectual Property and General Counsel at Software & Information Industry Association, explains:

“We still get whistleblower reports of state entities that infringe, but we haven’t been tracking that information for 20 years because Allen reached the same end result as the Fifth Circuit did in 2000 [in Chavez].  As a result, it didn’t make sense to track and organize that information in the context of our enforcement program.  But that’s not to say this problem has gone away, and many of our members are concerned.  COVID caused an increase in the licensing of software and materials for distance learning, creating exposure for many of our members.  One of them is now in litigation against the state of Nebraska for copyright infringement.”

I will interject a comment here to say that the status quo seems wildly out of whack with fairness and the purpose of U.S. intellectual property law. It should not be the case that individual authors, exercising their constitutional rights as individuals, should have the burden of demonstrating that they are members of a protected class, merely because the alleged infringer happens to be a state.

On the contrary, a single state infringer, like a university or museum, can cause considerable harm to a single author by means of a single act of infringement. And copyright law is intended to remedy that one infringement for that one author. So not only might the scope and frequency of state infringements prove difficult to ascertain, it is truly unfortunate that it is necessary at all. The Eleventh Amendment leaves the individual author as a David, sans slingshot, facing a multitude of Goliaths.

So, this is an odd moment. The Supreme Court and Congress both seem to want the law to work differently than it does. But an amendment passed in 1795, the foundation of which is the subject of endless, circular debate, serves as a major obstacle to what most people would probably consider basic fairness for rightsholders, and beyond.

To date, almost the only successful abrogation of state immunity, pursuant to the Fourteenth Amendment, has been in the service of major civil rights disputes with states, like the Voting Rights Act (1965). Because that history is intertwined with racial disparity and the original predicate for the Fourteenth Amendment, my friend Steve Tepp is inclined to say that “So far, it seems that we can only abrogate sovereign immunity regarding any issue over which we fought a civil war.”  That’s setting the bar rather high I would say. But that’s how things stand.

What the Age of the “Hack” Teaches Us About Copyright Terms

(Originally published at Copyright Alliance as part its “Secret History of Copyright” series of blogs.)

“Students of the nineteenth-century drama come sooner or later to the realization that the most important dramatist of the period was Shakespeare.”  – Marvin Felheim, The Theater of Augustin Daly (1956) –

Most people are probably familiar with the word hack as a pejorative for a bad writer, or as a neutral colloquialism for a cab driver, but few may be aware that both connotations derive from the same source. Hackney, according to Merriam-Webster, is a 13th century term for a horse “suitable only for ordinary riding or driving.” Consequently horse-drawn hansom cabs were manned by hackney drivers, and the word hack for cabbie persisted beyond the invention of the automobile.

Meanwhile a hack writer was largely (if not exclusively) a phenomenon of the burgeoning American theater industry, especially in postwar New York. The Civil War transformed the city into an industrial powerhouse, and this spawned a new and growing middle-class, which meant that more Americans were suddenly at their leisure to attend theater performances. But finding a supply of new dramatic material was another matter. “There are no American works on American stages,” complained one critic of the period.

Due principally to the absence of international copyright agreements—a condition that lasted roughly sixty years from first debates on the matter to first adoption in 1891—a large volume of American theater production was based upon hastily adapted or translated literary and dramatic works from Europe. And the writers paid to do all that frenzied scribbling were called hacks.

What the copyright watcher may find interesting, though, is that this era for the American theater—a market largely predicated on a copyright free-for-all—resembled a world that contemporary public domain advocates seem to project as ideal for creativity. It was not. Least of all by contemporary standards.  

Most advocates for the primacy of the public domain espouse a general hypothesis that the duration of copyright protection fails to “promote progress” by draining the common well from which all authors must drink. This assertion endures, despite considerable evidence that contemporary authors (pandemics notwithstanding) have been producing new works much faster and more abundantly than the market can consume them.

Taking a very literal view of the author’s need to “build upon” precedent works, critics of copyright terms allege, almost as a moral imperative, that works must fall into the public domain more rapidly than they do. And this thesis is usually supported by hypothetical predictions that may best be described as the Who knows what might be done? school of copyright theory. But rather than gaze bewilderingly through a fog of possible futures, we can instead focus lucidly on the microcosm of mid-late nineteenth American theater, when the market conditions looked very much like the public domain paradigm that contemporary term critics believe should be restored.

Early Broadway was certainly an exciting market, if not a literarily sophisticated one. Centered around 14th Street in Manhattan, theater managers were constantly swapping out their playbills in a time when a month was long run for a show.  Audiences were more often drawn to see their favorite stars, or by on-stage spectacles like city fires and storm-tossed ships, than they were by playwriting itself.

It would not be accurate to say that all writers of the period lacked talent, or that some fine, original works did not emerge between the cracks. But even one of the best dramatists of the era, Dion Boucicault, complained that he could be paid more for a hack adaptation of an unlicensed “safe bet” than he could for a new and original play. This phenomenon mirrored the stifling effect that the lack of international copyright agreements had on early American publishing inasmuch as the theater industry likewise feasted, for a while, on a steady diet of transatlantic poaching rather than invest in new material.

The absence of international copyright agreements, between roughly 1865 and 1881, was undistinguishable from having a very large volume of works in the public domain—a condition that many of today’s copyright critics advocate rather strenuously. Yet for all the market activity theater managers derived from all that rampant appropriation, many of the dramatic works themselves were, in every sense, hackneyed retreads of works in the commons. Not surprisingly, hack work produced a lot of disposable plays, while the market forces of the time stymied development of more inventive playwriting.

Appropriation in nineteenth century theater was so constant that many authors (e.g. Dickens) found various workarounds to earn at least some revenue from play adaptations that they could not prevent or control. Meanwhile many dramatists were themselves such incorrigible pirates, that there were limits as to how much they could accuse one another of infringement. Not that litigation did not occur among playwrights—some landmark cases happened during this period—but the point is that nearly all dramatists of that era were very liberally drinking from a common well, just as contemporary public domain advocates would have them do.

But by the turn of the century, contemporaneous with the adoption of international copyright agreements, dramatic works authors turned their attention inward, rather than outward, for source material. Henrik Ibsen, usually credited as the father of modern drama, revealed how theater can explore the labyrinths of human psychology, that a play can be about the subtle dynamics of a family within the four walls of an ordinary home. Naturalism changed everything, including audience expectations, as the demand for subtlety in both subject matter and performance crossed into the 20th century.

Because the quantum universe of human drama is, in fact, a bottomless well of source material, it is no accident that as copyrights grew stronger, neither playwrights nor audiences suffered from a dearth of appropriation. On the contrary, not only does O’Neill’s Long Day’s Journey into Night not need to take anything (in a copyright sense) from A Doll’s House, but no modern audience would want it to. By the time we get to Pinter’s minimalist masterpiece Betrayal, or anything by Beckett, we recognize that a finite universe of common themes is infinitely divisible into an endless range of expression through dramatic works.

The aesthetics that molded creative expression throughout the twentieth century reveal that originality is as limitless as copyright’s protections are nuanced. The skeptics who claim that contemporary authors suffer for want of more works in the public domain not only tend to misunderstand the creative process of individual authors, but they also fail to acknowledge that history has, at times, shown us what their ideal paradigm would look like. And there is a reason why we still refer to those authors who rely overmuch on using the works of others as hacks.

Image: Street types of New York City: Hansom driver standing in front of horse and cab. , ca. 1896. Photograph. https://www.loc.gov/item/2002699101/.

Internet Archive Will Lose Big In Suit With Publishers

There is one consistent flaw inherent to most anti-copyright agendas. Because so many contemporary theories and attitudes tilting against copyright are largely predicated on the introduction of digital technologies, a false dichotomy persists between access and authorship. Since the days of NAPSTER, authors have endured a litany of techsplaining on the (not quite true) theme that the cost of access (i.e. reproduction and distribution) is “near zero” in a digital market.

To this incomplete view of the market, authors in every medium have worked harder than should be necessary to remind people that the human investment in the creation of works has not been substantially altered, regardless of the many changes in the way works are consumed in the digital market. Book writing is a clear example of this principle. It takes the author the same amount of time, energy, talent, etc. to write the book, regardless of whether it will be read in the form of digital, clothbound, paperback, or audiobook copies. Yet, time and again, endeavors to weaken copyright, through litigation and PR tactics, continue to focus almost exclusively on access to works, as if authorship of existing works never happened and authorship of future works is assured.

And that brings us to one of the more dramatic stunts in the service of anti-copyright zealotry—the launching on March 24 of the so-called National Emergency Library by the Internet Archive. On the claim that the coronavirus shutdown created unmet “educational” needs, the NEL provided unlimited access, worldwide, to an estimated 1.3 million books.* Several news organizations, eager to report positive stories at the leading edge of the health crisis, applauded the IA for its apparent munificence. But this enthusiasm was soon tempered, as authors spoke up and reminded journalists and the public that IA had no right—either legal or moral—to make “gifts” of other people’s works.

I will admit that, prior to the NEL, I had not paid too much attention to the Internet Archive. I was aware that its founder Brewster Kahle is an outspoken copyright critic, but so are many real librarians, who I would describe as well-intentioned but misguided in their chronic support of various infringing, commercial ventures. As mentioned in the past, I have certainly used the Internet Archive to research works long out of copyright, and I wondered in this older post whether the archive’s usefulness truly needed the kind of anti-copyright rhetoric espoused by Kahle. But that was naïve. Because Kahle is a zealot.

When IA used the cover of a global crisis to provide unlimited access to over one-million books, it was not to fulfill an urgent need, least of all an educational one. Even if this had been a sincere goal, it would not have been possible for IA to assess any gaps in the nation’s educational demands as early as March 24—and this fact is only emphasized by the indiscriminate assortment of in-copyright books, like romance novels and thrillers, that IA made available. These are likely not part of any school’s curriculum. Meanwhile, legitimate publishers of widely-used educational books did respond to the pandemic by providing free and/or broader digital access for teachers and students.

The National Emergency Library was a PR statement—a stunt orchestrated by an anti-copyright ideologue seeking to advance an agenda. Given the unfounded legal theories upon which the NEL was announced, it is plausible that Kahle was fishing for a lawsuit, hoping either to turn those legal theories into caselaw precedents, or to use the PR narrative of victimhood upon losing.

If getting sued was the goal, this was accomplished on June 1st. Four of the major book publishers filed suit in the Southern District of New York alleging copyright infringement. Reading the complaint, I predict that IA will lose across the board (i.e. on all defenses). But, beyond that, assuming all the allegations are supported by evidence, the complaint provides a glimpse into just how insidious the IA venture really is–including ways in which it could pose a threat to legitimate libraries.

Under the copyright law, IA will most likely present a response based on statutory library carve-outs, and will reiterate its fair use “superpower” defense, based on the extraordinary circumstances of national quarantine. In the area of untested legal theory, IA will have the opportunity to present the concept it calls Controlled Digital Lending (CDL), a model that is not supported by law and not adopted by ordinary libraries.

Not Really A Library. Maybe A Business?

As already discussed in this post and elsewhere, the IA fails to meet the conditions of accredited libraries that would make its activities eligible for the statutory carve-outs for libraries and archives. With regard to fair use, there is nothing in case law to support the idea that a national emergency alters the fair use analysis, and it is hard to imagine the court will find the NEL to be anything other than an unlicensed substitute for existing legal sales and lending channels. Add to this analysis the ways in which the publishers describe IA as a multi-million-dollar commercial enterprise, and rather than expecting to prevail on fair use, IA could be seen as walking very close to the line of criminal copyright infringement.

The section of the complaint alleging that the not-for-profit Internet Archive looks highly commercial is more detailed than I can present here, but the summary states:

“IA has an interlocking web of contributions and commercial services that support its Website. In addition to receiving large-dollar donations, IA has made tens of millions of dollars from selling commercial services. One of the services it offers is industrial-scale book scanning and digitization, which has generated more than $25 million in revenue since 2011.”

For instance, when IA digitizes and distributes an in-copyright, contemporary book—the complaint shows Gladwell’s Blink as an exhibit—it is not only infringing two exclusive rights under §106, but it also displays a link to “Buy This Book,” which leads the reader to a “used” online bookstore called Better World Libraries operated by, you guessed it, Brewster Kahle. How this conduct is distinguishable from hosting an infringing work in order to generate ancillary revenue from ads or third-party sellers is not entirely clear. But suffice to say the more that infringing activity can be linked to a financial interest, the worse things look for the Internet Archive.

Controlled Digital Lending – A Legal Theory

The concept of Controlled Digital Lending (CDL) may sound to the average listener like a sensible proposal—it almost did to me—but it has at least three major flaws legally and one major flaw pragmatically. The idea is that a library may digitize any physical copy it owns and then loan a digital copy to as many readers at a time as it has physical copies in its collection.

The legal challenges to CDL are 1) that there is no statutory carve-out allowing libraries to do this; and 2) even if there were such a provision, auditing the physical collections supposedly backing the digital copies is a dubious prospect; and 3) when IA provides the commercial service of mass scanning “on behalf” of libraries, this auditing seems especially unlikely. It gets even more complicated with the IA supposedly housing containers full of books to back up its CDL model, but we’ll see where that leads.

As a practical matter, the way digital lending works now, with libraries licensing collections via third-party services like OverDrive, this is almost certainly more cost-effective than the clerical labor implied by a CDL model—if the intent were to remain in compliance. Hence, the CDL idea sounds logical in theory, but upon examination begins to look like an attempt to whittle away at copyright protections. Depending on what IA presents in its response, it may be very interesting to see what, if anything, the court says about CDL. Separately, one reason the authors and publishers issued such resounding condemnations of the National Emergency Library was the fact that even the restraints of CDL (e.g. one book-per-customer and wait lists) were removed in response to the pandemic.  

Authors, Publishers, and Real Libraries Already Collaborate

In his public response to the lawsuit, Kahle announced that the NEL will be closing earlier than planned and “returning to Controlled Digital Lending. He writes…

“We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic.  However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world. This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.”

I wonder. If Kahle truly believes he his defending “any library,” he should welcome the lawsuit, especially when he cannot possibly be surprised to have triggered it. Of course, the reality is that IA is an outlier. It does not operate like “any library,” and that makes all the legal difference in the world. At the same time, the claim to want to collaborate with authors and publishers to “build a digital system that works” rings rather hollow. Infringing authors’ works en masse (let alone using a crisis an excuse to do so) is not a foundation for a collaborative partnership; and frankly, nobody really needs Kahle’s input in this regard. Digital access, especially to the kind of contemporary books in suit in this case, is widely available to consumers via multiple portals. Meanwhile, what working authors do need is to stop spending so much time fighting piracy at home as well as abroad.  

*Originally reported as 1.4 million when stories broke. Publishers’ complaint states 1.3 million.