An Open Letter from a Copyright Nerd to About 300 Authors

Dear Authors (“the undersigned”):

It’s not your fault. You mean well. But you are simply wrong to have signed that letter—the one written and orchestrated by Fight for the Future (FFTF), which misrepresents the case Hachette et al., v Internet Archive as an attack on libraries. If I were not a copyright nerd, and I were told that this lawsuit seeks to undermine “traditional library rights,” I probably would have signed that letter, if asked. But the parties calling this a case about library survival are exploiting your good nature and the likelihood that you do not know much about this case. In fact, Authors Guild, in its response this morning states:

“In speaking with authors who signed this letter because they support public libraries, as we do we [sic], they feel misled about the purpose of this letter. For instance, Daniel Handler (Lemony Snicket) disavows the letter and supports the lawsuit.”

The reason I advocate copyright rights is simple enough. I love the arts and firmly believe that a democracy without empowered authors and artists is doomed to become something other than a democracy. As I have been a copyright advocate (and nerd) for just over a decade, I don’t think it would be arrogance at this point to say that I am one of a handful of non-attorney experts on the subject. Not only does my experience encompass a solid knowledge of statutory law, case law, and the history of core doctrines, but it includes many encounters with the tactics of those organizations and individuals who want to strip authors of their copyright rights while disguising that agenda in the rhetoric of democracy, liberty, and defense of the underdog. Internet Archive and Fight for the Future are two organizations baptized in that ideology, and its leaders and comms teams do not scruple to employ tactics indistinguishable from other bullies and liars.

For instance, are you “the undersigned” aware that FFTF engaged in author-shaming on social media? They tagged writers and asked them baseless, rhetorical questions about “helping to sue IA” and whether they really want to keep their books away from “families who can’t afford them.” Surely, you are all keen enough observers of human nature to know that merely tagging authors with such false implications is enough to foster threats—at least one author has received death threats—against some of them. I fail to see how such tactics by FFTF are any more ethical than the kind of ratfucking employed by Trump’s cult to intimidate poll workers, et al. But this is a travesty of the digital age—it is just so damn easy to lie about basic facts in an effort to win an argument in the court of public opinion that one is likely to lose in a court of law.

We have all watched as allegations about “stolen elections” and other staggering bullshit move frictionless at lightspeed through the Twitterverse. But we also breathe a little sigh of relief to see that at least in court, facts must be presented and weighed. And there is a reason why the facts presented in the case against Internet Archive have no resemblance to the allegations made in that letter you signed.

Although Internet Archive has provided us with some wonderful services—I have used its legal archive for research many times—the factual basis for the publishers’ lawsuit is that IA also operates a book scanning and distribution enterprise in a manner that is not allowed by copyright law and which looks nothing like the operation of your library or mine. The specific conduct that predicated the suit was IA’s so-called “National Emergency Library” in March 2020. Citing COVID shutdowns as an excuse, Internet Archive digitally distributed approximately 1.4 million in-copyright books without restriction of any kind—let alone any logic to the titles released, given its stated intent to “help students.”

So, in the simplest terms, no. This is not what libraries do. Real libraries operate within the boundaries of copyright law, which includes several statutory carve-outs written exclusively for those institutions. By contrast, IA asserts theories that are a) unfounded in law; and 2) have been described by Kahle and others as a prelude to changing copyright law in ways that would weaken authors’ rights–and even harm libraries. They have stated, for example, that they see this fight with the publishers as a step toward amending Section 109 of the Copyright Act (first sale doctrine), which is so shortsighted that it would actually dilute the value of real libraries over time. Those of us familiar with Kahle’s agenda recognized the “National Emergency Library” as a stunt—one which may have been intended to provoke the lawsuit now at hand.

It is Mr. Kahle’s consistently stated assertion that copyright rights are little more than a barrier standing between you and your readers. He and his ideological siblings at FFTF, EFF, et al. sincerely and consistently argue that your legal authority to negotiate terms for your labor and talent stands in the way of the public’s access to information and culture. And in the most basic terms, the implications of IA’s conduct—if the publishers were to let it go, or if the court allowed it—would be to substantially undermine the foundation of the only labor right you have as an author. If you believe Mr. Kahle is correct—that the world would work better without those rights—then your signature belongs on that letter. But speaking as a copyright nerd, I assure you that history rejects this view.

During most of the nineteenth century, American publishers hardly invested in American authors for one simple reason:  because the absence of international copyright treaties meant that it was cheaper to reproduce unlicensed copies of European books than it was to publish, and therefore pay, an American author. This is why Walt Whitman advocated for the formal recognition of international copyrights throughout his career, barely living long enough to see the first such American law pass in 1891. Ideologues like Mr. Kahle and his friends talk about a future in which all creative works are unfettered by copyright, but what they don’t mention (or perhaps don’t know) is that we’ve been there, done that. And it sucked.

Another observation I hope I can offer without conceit or offense is that after ten years, I would say that not even the most rights-sensitive authors tend to know a great deal about the particulars of copyright law. And why would you? It’s tedious arcana for attorneys and agents. But this is also why it is dismaying to see names like Neil Gaiman among “the undersigned” while his books and characters are so prominently adapted into motion picture projects and merchandise worth millions.

Because I want to ask whether you are aware, Neil, that the only reason you must be consulted or compensated for those adaptations in the U.S. is Section 106(2) of the Copyright Act? Or that this “right to prepare derivative works” has its origins in a 1907 lawsuit involving the first film adaptation of Ben Hur? Or that the authors’ right to be paid a higher percentage on sales of ebooks than physical books is predicated on this same part of the statute?

So, what I’m saying is that copyright is complicated; you “the undersigned” all benefit from it; authors less prominent than you really depend on it; and you just endorsed the people whose stated agenda is to trash it in ways you probably don’t understand. This is so not about libraries.

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