Copyright Office opines on National Emergency Library. Critics opine on Copyright Office.

On April 16, Senator Udall (NM) wrote a letter asking the U.S. Copyright Office to provide Congress with guidance on the role of libraries and the potential need to expand (within the law) digital lending during national emergencies. More specifically, the senator asked the Office to comment on the National Emergency Library (NEL) launched by the Internet Archive (IA) on March 24, just as we all entered a period of self-quarantine. On May 15, the Copyright Office submitted its response.

For readers who might have missed the stir caused by the NEL, the IA, in response to a presumed emergency need for remote access to reading material, made approximately 1.4 million books available worldwide, and removed all restraints like wait lists for titles. The books distributed include an as-yet-unknown number of contemporary works that are still widely available through both digital sales and licensed borrowing regimes.

In addition to the fact that there is some question as to how many books at the Internet Archive are legally obtained,[1] the organization, based on its own legal theory, determined that the COVID-19 pandemic authorized the organization to “loan” books to an unlimited number borrowers, all at the same time. By contrast, my local library system, for example, offers licensed digital books through OverDrive, which lends books to library-card holding readers, one at a time. And there are waiting lists just like we have with physical copies.

Because IA used the pandemic as an opportunity to release what amounts to unlimited digital copies of perhaps tens of thousands of contemporary books, both authors’ rights organizations and individual authors were more than a little irritated by the presumptuousness of this sudden largesse with the distribution of other people’s property. Moreover, recognizing that IA founder Brewster Kahle is an anti-copyright activist (if being a millionaire with a misguided mission can be called activism) this cast a deservedly cynical light on the organization’s decision, which looks a lot like using the fog of a crisis to advance an agenda.

Further, it was noted by Authors Guild and others that most authors make very little money from book writing alone, and writers have been hit financially by the pandemic, just like millions of other workers. Unsurprisingly, copyright skeptics and digital-rights maximalists (yep, I’m going there) called the reaction against IA a moral panic, and some of the usual Twitterspats erupted. But the subject of this post is Sen. Udall’s request to the USCO for comment, and the subsequent response to acting Register Maria Strong’s reply to that request.

USCO Offers Balanced Analysis (but you do have to read it)

The letter is a good example of the Copyright Office doing exactly what it’s supposed to do (in this case advise Congress) without driving outside its lane. Most of the 22 pages are dedicated to summarizing the four relevant statutes (§107-§110) in the copyright law that contain broad and specific exceptions to copyright that are pertinent to libraries, and which may be informative to Congress with regard to exigent demands to expand digital lending.

Where the letter addresses the National Emergency Library, the Office is careful to avoid comments that definitively “rule” on the legality of IA’s conduct. For instance, at the end of its conclusion that fair use (§107) likely would not shield IA’s conduct in this instance, the letter reiterates the CO’s advisory role, stating, “…the Office offers this analysis as requested to aid your consideration based on facts as the Office currently understands them, but does not wish to get ahead of actions taken by private parties.”

In other words, if authors or publishers were to decide, at some point, to sue the IA for copyright infringement, it is not the role of the Copyright Office to pre-litigate those hypothetical cases. At the same time, while the analysis in the letter does point in the direction that IA’s conduct is very likely not legal, these comments are solely based on the extraordinary nature of the NEL itself, and not the result of some ideologically skewed perspective within the Office. In fact, the letter is so demonstrably balanced in its analysis that the only way for copyright critics to stridently object to its content is that they can rely on most people to not read it for themselves. And/or not to know much about copyright law.

Enter the Copyright Critics

ReCreate’s Joshua Lamel this week tweeted that he was “deeply disappointed” in the CO opinion, calling it “bad lawyering,” and pointing to a long blog post written by fellow skeptic Kyle K. Courtney. It’s funny that Lamel would use a term like “bad lawyering” while citing Courtney’s post, which is such a baroquely constructed straw man that, if it were a brief in a legal case, a judge would likely become impatient with its meandering panegyrics to the value of libraries, which is neither doubted by, nor relevant to, the questions asked of the Copyright Office. Courtney begins his post …

“Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural institutions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.”

I’ll set aside my cynicism (for now) about the premise that tens of millions of Americans are being cut off from reading material—that, for instance, the Karens and the assault-rifle protestors, with their misspelled signs about their constitutional rights, are suffering for access to Proust. But Courtney’s big thesis is that “libraries do not need permission to lend books,” which is generally true, and also a misdirection in this context, setting the stage for the straw man critique of the CO letter. By focusing readers’ attention on libraries in general, Courtney both circumvents the narrow questions presented about the atypical character of the NEL and implies that the Copyright Office misapprehends the law vis-à-vis ordinary libraries by seeking to expand what he calls “licensing culture.”

[Expanded licensing] undermines the ability of the public (taxpayers!) to access the materials purchased with their money for their use in public libraries and state institutions, and further, it is short sighted, and not in the best interest of library patrons or the public at large.

There are more than a few of these emotional soliloquies in Courtney’s post—all designed to stoke the ire of his readers, most of them off topic, and some of them sacrificing comprehensibility for the sake of drama. For instance, when he calls the CO letter the “penultimate example of this licensing culture gone wild,” one is left to wonder what the ultimate example will be, or whether Courtney is aware that penultimate means “second to last,” which makes no sense whatsoever.

Not to digress into petty gotchas, though, the salient point is that the Copyright Office did not—indeed it would not—say anything in its letter to imply any abrogation of the carve-outs that libraries in general enjoy under the current statutes. Courtney’s post dissembles by failing to acknowledge that those statutory carve-outs are not without conditions, thereby obscuring the fact that it is precisely because the NEL fails to meet those conditions that it presents a major concern for authors. Nevertheless, the tone of the post is pregnant with comments like, “These expanded licenses are eroding away our ownership rights over purchased materials, and also eviscerating the critical copyright exceptions and rights that every user, not just libraries, have under copyright.”

That statement is doing double work. First it alludes to topics (i.e. purchased materials) that have nothing to do with ordinary libraries or the NEL, and then it also happens to be absolute bullshit. As a general rule, expanding licenses is how more works are delivered to more consumers via more channels. At the same time, never in the history of buying copies of works has our purchase of said copies transferred any of the authors’ rights to us as consumers. You can buy a copy of a novel and dispose of that copy as you like, but you never buy any of the author’s exclusive rights through the purchase of that copy, whether physical or digital. So, consumer rights are not being “eroded” by licensing; those alleged rights do not exist. And the same goes for libraries. (See post about the Buy button here.)

What seems clear is that Courtney objects to the idea that the author is empowered to grant permission at all. That’s what licensing is:  permission to use a work in particular manner, and sometimes that permission is even granted free of charge. Yet, Courtney scorns even the prospect of zero-cost licensing on principle. That’s a position he and others are free to take, but this whole narrative of an “expanding licensing culture” is kind of like a deep-state conspiracy theory for anti-copyright zealots—especially if the letter by the USCO to Sen. Udall is what passes for evidence of same.

With the accusations lobbed at the Copyright Office, Courtney is technically asking the agency to step outside its purview and write opinions that do not square with the law. For instance, the letter correctly states that the first sale doctrine (§109) does not apply to digital transmission and would, therefore, be unlikely to provide a legal basis for the IA to have launched the NEL. Although Courtney and others clearly believe that §109 should apply to digital transmission, at least for non-profit entities like libraries and archives, that is a much broader discussion beyond the question asked at this time by Sen. Udall. If a court were to rule somewhat differently in some future case (beyond the one in Capitol Records v. ReDigi), the Copyright Office would be obliged to acknowledge that ruling in some future discussion, but that is not the reality today.

Meanwhile, there is a lot to be said, both in terms of efficiency and cost, for libraries adopting digital licensing models, the way my regional library did, rather than wade into the messy implications of interpreting or amending §109 to encompass the digital transmission of scanned books. That opens up a huge can of worms—one that potentially threatens the digital sale market for authors—that pundits like Courtney either fail to consider, or do not care about. This comes under the heading that the antagonism that often erupts between authors and libraries is an absurdity, one that is largely manufactured by people like Brewster Kahle, Big Tech corporations, and academics with too much time on their hands. But that’s a topic for a future post.

See also former USCO counsel Steven Tepp’s analysis of the National Emergency Library here.

[1] For instance, if IA digitizes books it borrows from other libraries, this is not legal acquisition that entitles the lending of those books in any form.

“Library of Congress” Photo by author.

© 2020, David Newhoff. All rights reserved.

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