Tag: Brewster Kahle

Why is the press so bumfuzzled about copyright issues?

During a recent scan of the Authors Guild discussion boards, where I look for copyright related comments, I noticed a couple of authors mentioning how dismayed they were to hear the NPR show 1A host a one-sided conversation about the Internet Archive being sued by several major publishers. The program, which aired on December 7, hosted Internet Archive founder Brewster Kahle, along with Melanie Huggins of the American Library Association and John Bracken of the Digital Public Library of America.

The segments of the show extolling the virtues of libraries and discussing their digital futures were valid conversations worth having, but my friends at AG were right to take issue with the producers at 1A in regard to the conflict between Internet Archive and the publishers over copyright infringement. WAMU had provided a forum for advocates of policy positions directly opposed to authors’ interests and did so without inviting any authors to participate. Instead, as the press often does it seems, 1A amplified the too-simple narrative about King John publishers and Robin Hood librarians, as if the writers of the books necessary to both institutions do not have anything to say on the matter.

If 1A and others don’t want to host a serious conversation about the legal doctrines implied by the theory called “Controlled Digital Lending,” or they don’t want to discuss the library associations’ hopes to amend §109 of the Copyright Act, fine. If they don’t want to invite counsel for the Association of American Publishers to debate these nuanced legal matters, so be it. But before providing yet another platform for those who promote the “evil publisher” narrative, perhaps some consideration for the relationship between publishers and writers is warranted.

I don’t know. Maybe Macy’s will never talk to Gimbels. Because it seems to me that public radio shows feature in-depth interviews with authors all the time. Clearly, somebody in the ambit of NPR understands that before publishers or libraries can make books available, writers have to write them. And writing books is what we call work. And using anyone’s work without license is what we call exploitation, which is precisely what writers feel when Brewster Kahle (who is a multi-millionaire, by the way) and the executives at library associations presume to make books available in ways that contravene licensing regimes governed by copyright law.

It is very disappointing when journalists in a position to shape public perception on background issues like copyright law are apparently so star struck by Kahle’s utopian shtick that they ignore the individuals whose lives would be affected by the ideas he and his friends are promoting. I wonder if the producers were even aware that Kahle lied at the top of the program about the publishers’ lawsuit, when he flatly stated, “They’re accusing the Internet Archive of lending books,” and then further insinuated that the lawsuit came out of the blue at the start of the pandemic.

Commenting as a lifelong liberal, I can say that was Kahle throwing red meat to a presumably liberal audience, no less bloviating bullshit than anything that ever flowed from the maw of Jim Jordan. Because in this case, Kahle omitted the crucial detail that what triggered the lawsuit was his decision to release 1.4 million books without license or restriction, describe the move as a “National Emergency Library” (NEL), and claim that it was Internet Archive’s response to an urgent need during the early days of the COVID shutdown. (See post here for discussion.)

But Kahle is not so naïve and innocent as he presented himself on the broadcast. The NEL was a stunt—one worthy of Barnum—that seized upon the emergency atmosphere of the first wave in the pandemic to advance a broader anti-copyright agenda. And he had to know it would force the publishers to sue. Like any activist, Kahle wants to control the narrative, which is an understandable tactic but should be seen as a tactic, and one that had nothing to do with responding to a public need, let alone showing any respect for authors.

Unfortunately, the producers at 1A, like much of the press, seem to remain blissfully unaware that the copyright agenda promoted by Kahle and the library associations is not narrow but would, if achieved, affect professionals across most if not all areas of copyrighted works. So, in this regard, perhaps they might take a glance at their own web page, read ©WAMU at the bottom, and ask themselves what that means in the broader conversation they are not quite having.

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.

Does the Internet Archive Need the Copyright Rhetoric to Be Useful?

Photo by fotoduki

Recently, a tweet caught my eye on the #copyright thread—something about the late Congressman Sonny Bono and a new collection at the Internet Archive, which is the vast digital library founded by technologist and entrepreneur Brewster Kahle.  The tweet linked to a blog post by Kahle announcing that a collection of copyrighted works published between 1923 and 1941 had been “liberated” and is now available on what the Archive has named The Sonny Bono Memorial Collection.

The eponym is not an honor of course. It’s a posthumous snipe at Bono, who is credited (or blamed, depending on one’s point of view) for the Copyright Term Extension Act (CTEA) of 1998, which added 20 years to copyright protection, resulting in the current term of life of the author plus 70 years.  Kahle’s post is bulked out with a lot of standard rhetoric condemning the duration of copyright, repeating the misleading narrative that Mickey Mouse was a major reason for the CTEA, and imply rather obtusely that the original 14-year, single-renewal term of 1790 ought to still be the law of the land (because of course the world functions much as it did in the late 18th century).  All that noise aside, however, the new collection with the sarcastic name is made possible by what Kahle calls, “a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold.”

Let me interject to say that the Internet Archive is impressively handy.  I’ve already found a number of intriguing sources for a research project I’m just beginning; so, what follows is not an indictment of this or any other library, whether physical or digital.  I love libraries. But the reason for highlighting Kahle’s derisive tone is that it seems that there’s a lot of unnecessary conflict being sown between contemporary librarians and copyright law. And the crux of Kahle’s own announcement about this new archive underscores just how unnecessary the conflict is. To begin, Section 108(h) of the Copyright Act is not quite so arcane as he implies.

The statute was created as a specific carve-out for libraries, reflecting a compromise to attain passage of the term extension in 1998.  The exception allows a library to copy and make a work available during the last 20 years of its term of copyright protection, if copies of the work are not commercially available at a reasonable price. There are more conditions to the statute, but the underlying rationale is common-sensical enough. If these “Last 20” works are no longer available in the market—and high-priced, rare copies don’t count—then libraries are allowed to fulfill their mission by making the works available for the purposes of research and scholarship.  Meanwhile, the existence of the 108(h) exception, including proposals to amend it, actually rejects the attitude that Kahle and others sometimes adopt which ultimately pits authors against libraries.

New Scholarship on Section 108(h)

The challenges for a library wishing to apply 108(h) include research capabilities to learn the copyright status of works, and vagueness in the statute that can make proper analysis difficult. Enter Professor Elizabeth Townsend Gard, a copyright and history scholar at Tulane University. In collaboration with colleagues and students, she produced a 103-page paper, released this month, entitled Creating a Last Twenty (L20) Collection:  Implementing Section 108(h) in Libraries, Archives and Museums.

Gard’s paper offers two major contributions:  1) a comprehensive methodology for qualifying organizations to make effective use of the 108 exception in order to build what she calls “Last 20 Collections”; and 2) suggestions for possible revision of the statute in order to address what she sees as unnecessary gaps that leave organizations in limbo with regard to qualification and implementation. The heart of the paper is dedicated to methodology, in which she describes a taxonomic approach to identifying works, combining standard library cataloging systems with copyright data to yield the information required to know if a work is eligible for the 108(h) exception.  Given the amount of complexity involved, and the fact that I am neither a librarian nor an attorney, I cannot fairly comment on the system.

With regard to the statute, the US Copyright Office published its Model Statutory Language for revision of Section 108 in September of this year.  Gard commends some of the proposed changes and critiques others, making several recommendations that sound reasonable. For instance, she advocates better clarification of the extent to which the “used” market honestly represents “availability” of a particular work in fulfilling the purpose of 108(h). Some of her proposals may find critics at the USCO or among various stakeholders; but suffice to say, her work reads like a sensible foundation for compromise, which can be a rare find in contemporary discussions about copyright.

Making Section 108(h) Work is Not an Anti-Copyright Statement

Gard’s work represents a counterpoint, in my view, to many positions adopted by the ALA and related organizations, which have spent considerable energy aligning their interests with for-profit, technology companies in the hope of expanding—through litigation—the fair use exception and/or the first sale principle.  This approach seems both ideologically and pragmatically flawed, especially where the for-profit ventures clearly try to strain the underlying legal principles involved.

Libraries, archives, and museums, which exist for the primary purpose of advancing scholarship, deserve special consideration that is not accorded (and neither should it be) to for-profit ventures—or necessarily all non-profit ventures.  While the internet does create unprecedented opportunities for providing access to works that can lead to new areas of scholarship and new forms of creative expression, it also creates unprecedented incentive (i.e. crazy-big money) for various parties to try to blur the line between public-serving and private-interest ventures. Legitimate institutions of scholarship that ally themselves with this kind of vagueness are, in my view, working at cross-purposes with efforts like those of Professor Gard, whose proposals seek clearer guidelines for the types of institutions that deserve exceptions like Section 108(h).

To put this in context, there is nothing that necessarily bars a public-serving and privately-held platform like the Internet Archive (or Wikipedia) from becoming a monetized business venture, either independently or by selling all or some portion of its enterprise to a larger entity like Google.  Or if the Internet Archive were to earn revenue by selling its user data, this should run afoul of Section 108’s prohibition against using a “Last 20” collection to attain “indirect commercial advantage” for the archivist. I’m not saying the Internet Archive will do this, but if we keep in mind that indirect commercial advantage is the mechanism by which giant internet businesses make content “freely” available to the public, this awareness should inform any new statutory contours for an exception like 108(h).

Referring back to Brewster Kahle’s post, he quotes Carrie Russell, Director of ALA’s Program of Public Access to Information thus: “I’ve always said that the silver lining of the unfortunate Eldred v. Ashcroft decision was the response from people to do something, to actively begin to limit the power of the copyright monopoly through action that promoted open access and CC licensing.”  Eldred is the Supreme Court decision upholding the constitutionality of the CETA, and Russell’s statement here is frankly incomprehensible in a blog alluding to Gard’s efforts to make an existing, statutory limit on copyright work better.

Kahle himself seems unclear about the difference between the nuance in Gard’s work and his own desire to evangelize the bad-manners approach to copyright typically employed by Silicon Valley corporations. He writes, “Now it is the chance for libraries and citizens who have been reticent to scan works beyond 1923, to push forward to 1941, and the Internet Archive will host them.” That makes it sound as though Gard’s work just opened the flood-gates and that anyone should feel free to upload anything to the Internet Archive as if it were YouTube. Does this mean the Internet Archive will then do the 108 analysis before hosting, or that they’ll just duck behind the safe harbor of the DMCA?   Either you’re an entity that responsibly qualifies for the 108 exception, or you’re an ideologue eager to stick it to rights holders.  You can’t be both.

Professor Gard’s work strongly highlights the fact that carve-outs for libraries already exist in the copyright law; and where these statutes may not function as intended, they can be amended through good-faith collaboration with the USCO, stakeholders, and Congress.  To achieve this collaboration, however, the librarians and archivists would do well to tone down some of the rhetoric implying that the interests of preservation and research are incompatible with the interests of authors. It is plainly absurd for librarians and authors to be at odds, even in the digital age.