Category: Intellectual Property

Internet Archive Uses Pandemic to Justify Looting

When I borrow a sentiment from Ayn Rand, you can bet I gave the matter some serious thought. But looting is the one word that comes to mind in response to last week’s move by the Internet Archive to launch what they call the National Emergency Library. Believing the coronavirus pandemic provides both a moral and legal foundation for its decision, IA suddenly made over one million published works, including contemporary books in print, available to “borrow” worldwide. And not even on a one-reader-at-a-time basis like a library. They just opened the floodgates. 

This “emergency library” is neither moral nor legal nor even necessary to meet a need suddenly created by the pandemic. Yet what is most galling about the IA in this regard is the pretense to public service and largesse against the backdrop of a real emergency. One cannot be “generous” with the labor and property of others, particularly those who are, themselves, vulnerable to the economic hardship caused by crisis. That is the true spirit of looting.  

Most authors are barely insulated from financial difficulty in the best of times. Many writers you might imagine as quite well off, some who even have august words like Pulitzer next their names, are among those who (as the economic reporters describe) could not lay hands on $500 in an emergency. And now we are all in the midst of an emergency. It is of course too soon to predict what long-term results will follow the ebb of Covid-19, but it is certain that millions of people are suddenly out of work right now. And among those so affected are creative workers, who generally earn average to below-average incomes under normal circumstances.

The mean income for authors from writing alone is $20,300, and the supplemental work that many of them do may presently be foreclosed, as it is for millions of people in multiple business sectors. If anything, it would seem that this moment of forced solitude and inertia is the perfect time to promote buying (or legally borrowing) a few books, rather than infringing the copyrights on about 1.4 million. 

In practical terms, the coronavirus has not reduced online access to cheap or free books, but it did prompt several major publishers to address educational needs by making digital books and other resources freely available to schools and individual students. Hence, IA’s claim that its “emergency library” was launched, in part, to make works available for students is a dubious one at best. Instead, the move reeks of opportunism—a stunt to promote the misguided anti-copyright agenda of IA’s founder, Brewster Kahle. Moreover, it reeks of cynicism in a moment when tens of thousands of creative workers are suddenly unemployed.

Musical artists cannot play live venues. Theaters are shuttered. Motion picture and TV production is at a near standstill. Book authors cannot travel, host promotional events, or lecture. Photographers cannot travel or do shoots that involve human subjects or crew. And many journalists who are still able to work are risking their lives to do so. At the same time, members of the creative community have responded to recession and fear in positive and useful ways—donating money, streaming or broadcasting free living-room concerts, making first-run movies available online, streaming theater performances, hosting online art classes for children, and the list goes on.  

By contrast, it is very hard to see Internet Archive’s “emergency library” as anything other than anti-copyright evangelism. In part, this view is supported by the fact that the library was launched on such shaky legal ground, that only the milieu of a major crisis could obscure the organization’s flagrant disregard for authors. In its response last week, the Authors Guild wrote the following:

“IA has made far-fetched claims that it is protected by fair use, but an appellate court case last year squarely decided the issue against them, as we advised them it would. There is simply no basis in the law for scanning and making copies of entire books available to the public. Now, IA has gone further and stripped away the one-user-at-a-time limitation so that any number of readers can access any of 1.4 million books at any time through a couple clicks….”

There are multiple exceptions and carveouts in copyright law for libraries and archives, and there are historic precedents for national emergencies. But those exceptions have limits and conditions designed to balance public service with the authors’ right to earn revenue for their work through legal distribution systems. Specifically, the statutory carveouts do not even apply to archives like IA, which is presumably why they assert that the pandemic somehow allows them to make these books available under the doctrine of fair use. 

This unfounded legal theory is exemplary of the archive’s ideological opposition to copyright. Kahle & Co. are of course entitled to advocate any view they want, but to camouflage their agenda in the fog of a pandemic is unconscionable. More particularly, the Internet Archive should not be surprised if, after this emergency has passed, they find themselves on the losing end of a lawsuit. If for no other reason, it may be necessary to affirm that their appeal to “emergency powers” under fair use in this case is legally untenable.  

As I wrote once before, the Internet Archive can be a wonderful service when used within the constraints of legality. Having just finished writing a book myself, I will admit that my bibliography has at least a half-dozen citations to IA’s digitized books from the very early twentieth or mid-nineteenth century (i.e. in the public domain). Providing access to materials that are otherwise hard to find without a lot of time and expense is the best and highest purpose of a digital archive. Such repositories can be invaluable to authors who, as mentioned, have limited resources to invest in their research. But if, while providing a useful service, the same archive seeks to degrade the already tenuous market for books still under copyright, then the whole value proposition becomes a vicious cycle of self-destruction. Not unlike looting during an emergency. 

Allen v. Cooper: Justly Decided If Not Exactly Just

Professional creators following the case Allen v. Cooper were no doubt disappointed by the Supreme Court’s March 23 decision—a unanimous holding that the States (and/or their agents) are generally free to infringe copyrights with impunity. But perhaps authors of works should not to be entirely discouraged on this matter, because it seems clear from the opinions written that the Justices would have preferred if the law had led them to the opposite conclusion. Moreover, a path for legislative reform remains open.   

A Quick Recap

See post here, or read more extensively on the website of plaintiff Rick Allen. The short version is that Allen’s company Nautilus Productions filmed and photographed excavation and research work performed on Blackbeard’s flagship Queen Anne’s Revenge, which was discovered off the North Carolina coast in 1996. Subsequently, the state made unlicensed uses of Allen’s copyrighted materials, primarily online, and when Allen sued for infringement, North Carolina invoked its sovereign immunity under the Eleventh Amendment, which bars citizens or entities from bringing federal suits against the states or its agents. 

In 1990, Congress passed two laws, the Patent Remedy Act and the Copyright Remedy Clarification Act, both designed to abrogate state sovereign immunity specifically for patent and copyright claims where states are alleged to be the infringing parties. In 2015, North Carolina passed “Blackbeard’s Law,” which specifically lays claim to photographic and AV works documenting shipwreck material a “public record.” So, why didn’t Congress’s CRCA protect Allen’s copyrights in this case? Well …

The IP Clause, the Eleventh and the Fourteenth Amendment walk up to the bar …

As we all know, Article I of the Constitution grants Congress the authority to establish copyright and patent laws; and one rationale for that clause, as Madison noted in Federalist 43, was the assumption that the new nation would be best served by uniform (i.e. federal) laws for intellectual property. (In copyright practice this uniformity was not fully adopted until 1978, and then there’s the whole sound recordings morass, but Madison’s seminal hopes were succinctly clear.) 

At the same time, the prospect of erecting a federal court system was a sensitive matter among anti-Federalists, who were hardly sold on the prospect of union among the States in the first place, let alone allowing their State governments to be potentially sued in the new federal courts by citizens of other States. Thus, in response to just such a case arising, the Eleventh Amendment was passed in 1795 to affirm the principle of “state sovereign immunity,” already extant at the founding period.

Without trying to cram a history of sovereign immunity into this post, suffice to say that States are not generally subject to litigation in federal court but for a handful of exceptions, and most of these exceptions derive from the Fourteenth Amendment of 1868. Relevant to Allen v. Cooper, Section 1 of the Fourteenth affirms civil liberties to all Americans, and Section 5 affirms Congress’s authority to pass such laws as may be necessary to enforce Section 1. Thus, sovereign immunity is abrogated where a State’s conduct or law runs afoul of constitutionally protected rights. 

So, it might seem reasonable to assume that the Article I power of Congress to write copyright and patent laws, which secure the intellectual property rights of all U.S. citizens, would naturally fall into the scope of protections affirmed in the Fourteenth Amendment. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law….” 

In fact, whether one views IP protections as grounded in natural rights or as purely utilitarian forms of property rights, the Fourteenth Amendment, combined with the Article I power, would seem to support Congress’s authority in 1990 to write the pair of laws that explicitly declared that sovereign immunity does not foreclose infringement claims brought by copyright and patent owners against the States. Alas, not so much.

A Very High Standard

Allen’s claim in this case rested on the premise that the 1990 CRCA abrogated the sovereign immunity of North Carolina; but unfortunately, the Supreme Court had already weighed this exact argument with respect to the CRCA’s sibling law, the Patent Reform Act. In the 1999 decision, in a case known as Florida Prepaid, the Court held that the Patent Reform Act did not abrogate sovereign immunity for two intertwined reasons. Article I powers alone are not sufficient grounds for Congress to circumvent sovereign immunity, and this can only be addressed by Section 5 of the Fourteenth Amendment where there is compelling evidence of a harm being intentionally caused by the State, and where no other remedies (i.e. due process) are available. 

In legal terms, the opinion states, “a Section 5 abrogation of sovereign immunity must be ‘congruent and proportional’ to the Fourteenth Amendment injury it seeks to remedy.” In practical terms that means if Congress wants to salvage the intent of the CRCA and/or the Patent Reform Act, they will need evidence, which proves that intentional infringement by State actors poses a significant threat to the interests and rights of authors and/or inventors. 

In reference to Florida Prepaid, the Kagan opinion reminds us, “Congress, we observed, ‘did not focus’ on intentional or reckless conduct; to the contrary, the legislative record suggested that ‘most state infringement was innocent or at worst negligent.’” Those data are not sufficient to circumvent the sovereign immunity. But that was then.

Especially with regard to works protected by copyright, digital technologies have changed the landscape considerably since 1990—even since 1999. Consequently, State actors (e.g. State universities) have both new means and new motives to infringe more frequently and more harmfully than the pre-digital age. Seemingly aware of these contemporary realities, the Supreme Court’s discussion of Allen v. Cooper connotes discontent with its unavoidable conclusion.

The Court Rules Justly But Hints Justice Is Not Served

The majority opinion written by Justice Kagan, and joined by Roberts, Alito, Gorsuch, Sotomayor, and Kavanaugh, with Thomas, Breyer, and Ginsburg concurring, was bound by precedent, namely Florida Prepaid. Allen’s appeal to the CRCA could not hope to overcome the principle of stare decisis, let alone in a matter that sets so high and precise a bar for setting aside states’ rights. Nevertheless, the opinions of the Justices not only present a roadmap that Congress might follow to seal the sovereign immunity loophole for copyright (and patent) owners, it practically calls upon Congress to do so. The Kagan opinion asks…

“All this raises the question:  When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. And the Fourteenth Amendment bars the States from “depriv[ing]’ a person of property ‘without due process of law.’ … So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause.” (citations omitted)

Then, in a passage that all but elbows the IP Subcommittee in the ribs …

“Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know these rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

This less than subtle overture to the legislature was one of two points of moderate dissent by Justice Thomas, whose concurring opinion admonished the Court to refrain from advising Congress on the authorship of future legislation. But writing almost the opposite view, the concurring opinion by Justice Breyer, and joined by Justice Ginsburg, laments the unavoidable conclusion necessitated by law, if not by principle. “That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss,” the Breyer opinion declares. 

Amiss indeed. From the moment Madison and Pinckney drafted the IP Clause, it cannot have been imagined, let alone desired, that the individual States would be left free to appropriate intellectual property from individual citizens. After all, it was a State legislature, in the Massachusetts copyright law of 1786, that declared, “As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is produced by the labour of his mind.”  

Google v. Oracle Part V: The Where Would You Be Without Us Defense

Not everyone agrees that copyright law has a natural-rights soul, but neither critics nor proponents dispute that copyright’s heart is to provide incentive for authors. Specifically in Google v. Oracle, the headlines most likely to seep into general awareness will boast one of two competing predictions regarding this incentive principle.  Defenders of Google insist that if Oracle wins this case, the legal precedent will stifle an entire software industry that needs to copy code (as they did), while defenders of Oracle assert that a Google win could undermine the financial incentive to create. 

Although predicting holistic market dynamics is admittedly a bit of a crapshoot, it seems far more reasonable to conclude that the core elements of Google’s arguments would cause significant cardiovascular harm to the incentive heart of copyright.  And it would do so by insidiously promoting the company’s own monopolistic conduct as a social benefit.  For example, I would draw readers’ attention to the PR message encoded in the following quote from Google’s brief to SCOTUS, filed on January 6th …

“Early mobile phones were much less useful, in part because many manufacturers used their own proprietary ‘operating systems’—i.e., software that controls the phone—for which few useful applications were created. Google responded by creating Android, an ‘open source’ operating system that worked with almost any smartphone.”

Notice how that sounds like mobile was going nowhere until Google magnanimously “responded” to market demand?  It’s meant to sound that way.  Because it reinforces the general proposition that Google’s innovation is synonymous with innovation itself; and as a legal tactic, it is there to tee up Google’s fair use defense (addressed in my last post) that Android developers made a “transformative” use when they copied Oracle’s Java SE code without license. 

Google appropriated the Java computer code for exactly the same purpose for which other mobile developers had licensed the software from Oracle. So not only does this fact undermine Google’s fair use argument, it also suggests that mobile was in fact not going nowhere in 2005.  On the contrary, mobile was racing down the highway faster than Google could fully assemble its own vehicle, leading Google to conclude that it needed Java to catch up. I think we all remember that it was Apple that revolutionized the idea of what a cellphone could be, with inspiration from even earlier innovators like Blackberry, Palm, and Nokia.

Which Outcome Poses a Threat to Incentive?

Copyright skeptics have intermittently taken pot shots at the incentive premise with the refrain that “artists will still create without copyright.”  And while I will not reiterate the many flaws in that particular bullet point, let us jump to the undeniable conclusion that major software developers will do no such thing.  Neither Sun nor Oracle nor Google nor Apple nor any other company is going to invest thousands of costly hours into developing software without projecting a return on the investment, which must be predicated, at least in part, on the IP in the software itself.

That premise alone, without even addressing the more nuanced legal arguments in this case, suggests that a Google win would more likely have a deleterious effect on future software development. If the next start-up developer compares both the conduct and the legal arguments of the two giants in this fight, Google’s claim that it “needed” to appropriate code (which it did not need to do) in order to “revolutionize” mobile (which it did not actually achieve) should scare the hell out of that start-up developer. Because what happens when the start-up creates a breakthrough product for some other sector Google decides it wants to “revolutionize?”

One of the first questions an angel investor asks is how a new venture can protect itself against an industry giant “squashing them like a bug,” for the Shark Tank fans out there.  And one of the best answers the founders can offer is that they own strong intellectual property.  But if Google’s exceedingly broad rationale for outright copying is allowed to stand in this case, the precedent it will set is one in which the new venture no longer has that protection when it enters an arena full of 300lb gorillas. 

If IP becomes meaningless as an incentive, industry consolidation will be exacerbated until we are left with one or two corporate leviathans with tentacles in every aspect of our lives. One need only glance at the winner-take-all paradigm of the digital age, which already forecloses entry into various markets, in order to envision how a finding for Google in this case could have a further chilling effect on competitive innovation. 

By contrast, Oracle’s core argument that its code should have been licensed by Google is not only non-threatening to the start-up developer, it is almost certainly a model the start-up intends to use in the market. Copyright critics have a habit of pretending that licensing is tantamount to making works unavailable and/or a prelude to innovation-killing lawsuits.  But there are few products that belie this rhetoric quite so demonstrably as Java.

Java is a developer’s platform—many have called it one of the most revolutionary ever created—and its licensing regimes were designed to foster innovation, sharing, and building upon prior works. Innovation is literally mandated by the various tiers of Java licenses—from free to commercial—but which Google refused because it rejected the condition that Android would have to be interoperable with the rest of Java.  Google wanted a proprietary platform, but one that relied on a core element it did not develop. 

The fact that the unlicensed use of Oracle’s code was intrinsic to Android attaining market dominance will not, I suspect, be overlooked by future developers and their prospective investors.  So, it would seem counter-intuitive to accept the narrative that Google’s defenses in this case serve innovation writ large rather than its own exclusive and narrow interests.  And if that doesn’t suffice, one could always ask whether Sun/Oracle licensing Java between 1995 and 2005 stifled innovation in the software industry.  Just sayin’ I don’t think it did.

A Worn Out Refrain

Many creators and copyright owners in other media are all too familiar with Google’s attempts to disguise its business interests as a broad social benefit like “we rescued mobile.”  For instance, the emphasis on “open source” in that line from their brief is there to color the picture of Google’s liberality toward the market, as if giving the Android platform away were not essential to its market-dominating intentions—and as if the ease of use for app developers were not a direct result of the code it copied from Oracle. 

So, for all the noise Google makes about innovation and competition, Android is now the dominant mobile platform for three important reasons:  1) the company has nearly limitless capital to launch products quickly; 2) it used Oracle’s code in the platform to attract app developers and get to market fast; and 3) its massive advertising and data-mining revenue streams are best served by giving away its general market products for free. Google is very good at using free platforms to monetize other people’s work without license; but of course, its products are not really free, are they?

Android, like every other “free” tool in the Google portfolio comes at the cost of a semi-voluntary exchange for our personal information—up to and including tracking our movements, invading our privacy, and abusing our data, either by selling it to unscrupulous operators or by leveraging it to engage in anti-competitive practices.  So when Google asks the rhetorical question in regard to this litigation, Where would we be without Android?  The sensible response is: Wouldn’t it be nice to find out?  But of course Google’s largesse does not want competitors in mobile any more than it does in, say, social video platforms. 

Historically, Google’s rhetoric, promoting the message that “copyright stifles innovation,” functions as a smokescreen, which masks its own anti-competitive business practices—namely, that everyone else’s copyrights get in the way of their innovation.  The same scenario plays out again in Oracle. Google copied someone else’s IP for its own commercial benefit and now uses litigation to weaken the law it decided to circumvent—and it did so for profit, not principle. Google’s legal arguments deserve to be addressed on the merits, but we should remember who we’re talking about when considering the big-picture narrative in the press and blogosphere.

PR is of course not unique to Google.  All corporations weave such narratives. But just because GE brought “good things to life,” this does not mean we blindly accepted PCBs in the Hudson River, or assumed that some other company might not bring better things to life.  Similarly, Google cannot be allowed to rest its case on the false premise that nobody was innovating (or would have innovated) in the mobile market until they came along. That simply was not, is not, true. 

Thus, Google’s claim that it must prevail in Oracle in order to preserve a culture of appropriation that allegedly promotes development, fades in the light of empirical evidence.  Without even weighing the copyright law details, Google’s overall message does not hold up against the now well-established narrative that the company behaves like a classic monopolist in every line of business it enters.