With the court’s unequivocal decision in Hachette et al. v. Internet Archive, and the continued failure of ebook legislation in various states, it is time for policymakers and librarians to understand the reason why this two-pronged campaign against copyright rights in ebooks is losing—because the academics, organizations, and lobbyists behind the effort are lying. Yes, that’s a big accusation to make about anyone, let alone professors at Harvard, Berkeley, Georgetown, etc., but what does one call disinformation in the service of an agenda? Alternative facts?
In a recent example of the kind of dissembling scholarship being used in this campaign, Professor Michelle Wu, whose early work was seminal to the theory called Controlled Digital Lending (CDL), wrote an editorial for The Nation criticizing the court’s March 24 decision in Hachette. The CDL theory was the foundation of IA’s fair use defense, which the court rejected on all points, just four days after oral arguments. But rather than address the case law or merits in the decision, Wu claims the court simply does not understand the nature of American copyright law itself …
While Judge John G. Koeltl’s opinion addressed many issues, all his reasoning was based on one assumption: that copyright primarily is about authors’ and publishers’ right to profit. Despite the pervasiveness of this belief, the history of copyright tells us something different. What persuaded early state and federal government actors to establish copyright was authors’ reluctance to release their books publicly without the ability to stop the then-rampant piracy by publishers. The lack of copyright, then, was seen as a barrier to information reaching the public, and lawmakers enacted copyright to remove that barrier. This societal purpose is reflected in the wording of the Copyright Clause of the Constitution, which makes the spread of knowledge its goal, with copyright merely being a means to achieve that end.
That is a C- answer on a copyright history test. Wu’s implication that copyright was adopted at America’s founding period without regard for the author’s pecuniary interest, and for the sole purpose of spreading information is as thoroughly belied by the historic record as IA’s fair use defense was emphatically rejected by the court. At the very least, the two considerations were given equal weight, as described by Professor Jane Ginsburg in her paper A Tale of Two Copyrights.
To be sure, the American framers saw patent and copyright law as generally beneficial to the new nation, and men like Joel Barlow (inaptly cited by Wu) wrote encomiums on the subject, noting authors’ fears of unscrupulous publishers as one rationale for legal protection. But the conviction that the author was naturally entitled to the fruits of his labor was alive in copyright history—in England, Europe, and America—by the time the Constitutional Convention dipped the first nib in an inkwell.
Subsequent to the doctrinal kerfuffle in England known as the “Battle of Booksellers,” which culminated in 1774, American copyright history, from Noah Webster to the suffragettes to the congressional record and international agreements, is abundantly concerned with the author’s personal and financial interests in the work. In fact, the majority of those state copyright laws to which Wu alludes, prioritized the author’s natural rights as the rationale for legislation, and an early draft by Madison of language that would become the IP Clause provides for copyright as a stand-alone declaration without preamble. I could go on.
If Professor Wu can support her unilateral “spread of information” rationale with more than opinion, she is welcome to do so. Of course, it was necessary to preface her editorial with a false origin story of American copyright—and slag Judge Koeltl in the process—because Wu then asserts that copyright doctrine and practice shifted from what it never was to an unprecedented focus on certain technological changes and to encroach upon consumers’ interests:
Copyright owners did not interfere with the end user. This was the case despite many user activities—such as making mix tapes, converting LPs to MP3s, writing fan fiction, and playing pop music at a piano recital—all technically potential infringements of copyright. Making a mix tape violates the reproduction right (also the distribution right if the tape is given to another person), converting an LP to an MP3 violates the right to make derivative works, and the playing of music at a recital violates the public performance right. The public, Congress, and the courts all ignored these behaviors as normal incidental uses or as instances of “fair use”—the allowance for which was not inconsistent with an author’s rights.
Not quite. First, there is no such thing as a generalized agreement about myriad conduct falling under the fair use exception. More importantly, there is a world of difference between individual, potential infringements, like mix tapes, and the kind of enterprise-scale infringement committed by the Internet Archive. Making over a million books available via the internet has very different implications than the little white infringements committed by individuals, but Wu is intentionally tossing it all into one big stew pot to promote a concept of copyright that does not jibe with fact or law.
Next, Wu alludes to several cases in which rightsholders litigated against technological innovations (e.g., Sony Betamax), and she characterizes these as attempts to improperly extend the copyright owner’s profit interest (profit being a dirty word) at the expense of the consumer’s right to access. I’ll spare readers an examination of each case in context to Hachette and skip to the bottom line: all those defendants had their day in court, and so did Internet Archive. And it lost on every point. Thus, rather than even mention the legal considerations in Hachette, Wu pivots to the false, general allegation that the court is fundamentally confused about the purpose of copyright. Finally, she claims …
Copyright protects a work—not a format—yet the justification used to stop CDL appears to be that the copyright owner has the right to profit repeatedly from the sale of the same content in a specific format to the same buyer, even if the buyer only ever needs one copy and already owns one copy.
It is almost a deft enough sleight of hand that a reader might miss the trick when Wu pockets the reproduction right, characterizing the manufacture of unlicensed ebooks—literal copying—as format shifting. The reproduction of books is the foundational activity in copyright law, and I am inclined to believe that Wu and her fellow CDL advocates at other fancy law schools know this. So why are they pushing revisionist history to promote a legal theory that may be DOA as of March 24?
Whatever their motives, the practical reality is that policymakers and libraries are having their time and resources wasted by a well-funded syndicate of ideologues and unscrupulous organizations hawking bogus legal theories and doomed ebook legislation in the states. In follow-up posts, I’ll address the status of those ebook bills and discuss exactly what the CDL white paper of 2018 proposes and its implications for real libraries.
 In Donaldson v. Beckett (February 22, 1774).
 EFF, Fight for the Future, Library Futures, Authors Alliance.