Tag: Copyright Office

State Copyright Infringement Should Be About Justice

And it’s a shame that justice will not be the basis on which it is corrected. If it ever is.

Recently, the U.S. Copyright Office published its report on copyright infringement by states and state actors in response to the present circumstance whereby states are immunized against litigation for unlicensed use of protected works. As the Supreme Court held in the late 1990s, and affirmed in Allen v. Cooper (2020), Congress lacked the authority, under its Article I powers, when it explicitly abrogated Eleventh Amendment state sovereign immunity in federal suits against states for infringements of intellectual property.

I have written extensively on the background of sovereign immunity, and this post will provide a detailed account of where things stand and how they got that way. But the big bullet point of the moment is that the USCO was asked by Congress to report on the scope and nature of state infringements to discover whether a foundation exists for yet another run at legislative abrogation of state immunity for IP enforcement. The report was requested after the Supreme Court in Allen, even while acknowledging the injustice of the outcome, indicated that any new laws that set aside immunity would have to be based on evidence of widespread “intentional and reckless” infringement by state actors.

Intentional and reckless are evidentiary standards for which stakeholders representing state entities (e.g. university libraries) advocate a high bar that the alleged infringer must be proven to have knowingly made unauthorized use of a work. Conversely, entities like the National Press Photographers of America (NPPA) advocate the lower bar that the alleged infringer must act upon “something more than negligence.” Personally, I tend to think that unless one is somehow unaware that copyright law exists in the U.S., the default assumption should be that using a work without obtaining permission is most likely an infringement.

Too Much Focus on Volume and Frequency

Meanwhile, it seems that a significant injustice in this whole mess is the idea that Congress should be required to gather evidence of a large volume of state infringement presently occurring in order to meet what is called the “congruent and proportional” standard for abrogating Eleventh Amendment immunity in order to protect creators. The principle of the standard is sound enough. For a law to encroach upon a constitutional right, it must remedy a constitutional harm in a manner that is proportional to the injury being done to the first right. And in Allen, the Court held that when Congress abrogated immunity in 1990 for copyright infringement (with the CRCA), it failed to do so based on sufficient evidence of state infringements necessary to meet the “congruent and proportional” standard.

Consequently, it seems reasonable to worry that injustice may be perpetuated as a result of too much emphasis on the volume and frequency of measurable infringements because that is not how laws protecting individual rights are supposed to work. On the contrary, many laws of this nature are often meant to address minority interests in which individual rights may be infrequently yet substantially infringed—as is the case with laws mandating access to public facilities for persons with disabilities.[1] And in addition to the fact that a single copyright infringement by a state actor can do significant economic harm to an independent creator or small business (even causing self-inflicted harm to the state itself), the emphasis on quantity and frequency of infringements nationwide elides a principle beyond economics that has been woefully diminished in the whole state immunity narrative.

It is potentially regressive in many areas of national policy that the Supreme Court determined that Congress’s Article I powers do not extend to abrogating state immunity, even for the purpose of writing explicit and narrowly-tailored federal laws. And I would argue that state copyright infringement is a challenge that emphasized the nature of this dysfunction. Because of all the authorities granted to Congress in Article I, only the IP clause empowers it to pass laws with the express purpose of protecting a unique set of rights secured to individual citizens. And copyright is further distinguishable from its twin, patent law, because most of the works copyright protects are creative, personal expressions that are unavoidably intertwined with the authors’ speech rights.

So, when a state or state actor infringes copyrights, the implications are, of course, financial, but quite often much more than financial. They are acutely felt, unconstitutional violations of individual liberty. So, while I certainly hope that, for instance, Rick Allen prevails in his copyright takings claim in North Carolina, it is at the same time unfortunate that the sovereign immunity narrative is limited to treating copyright as strictly analogous to ordinary property because this view overlooks a fundamental injustice—one that is not ignored in the private sector.

Compelled Speech is an Inevitable Byproduct of Sovereign Immunity

To illustrate the point, imagine the following hypothetical that I wish we could call farfetched:  Imagine a TV commercial or promo video produced by a state-funded entity that uses music without license, written and performed by feminist icon Beyoncé, to endorse Texas’s draconian anti-abortion law. Not only would the state actor have committed prima facie copyright infringement, but any reasonable observer would consider this use of the artist’s music to be an even greater crime of compelled speech. When creative works like music are used via compulsory license at political rallies, compelled speech may occur in those instances; but in a case in which a state-funded entity or state-employed individual uses a work to convey a specific message to which the creator(s) may be profoundly opposed, the speech infringement argument is even stronger.

As I say, I wish this was an unrealistic hypothetical, but the current state of our politics indicates that it is not. And I concocted the Beyoncé scenario to draw attention to the kind of personal, and not merely financial, injury that nearly any creator experiences when her work is misused. One could easily reverse the narrative and imagine a Christian rock band’s music appropriated to endorse abortion rights, and the principles would be the same.

But, of course, most creators are not Beyoncé. They are small, independent authors of works, and the more likely scenario is one in which, perhaps a photograph is used to endorse a message with which the photographer disagrees. Unless the photographer and photograph are quite well known, the compelled speech argument would be more difficult to make, though it would still be felt by the creator of the work. In fact, in the NPPA’s written comments of September 2 to the Copyright Office, the organization stated the following:

Simply put, with state sovereign immunity for copyright infringement, states are free to present and promote their messages by using copyrighted works against the wishes of the journalists and artists who created them. A state that opposes same-sex marriage, for example, could use the images taken by a wedding photographer to promote its position on “family values.” Each infringing use of imagery, if committed by a state actor, would amount to unconstitutional forced speech.

But in any similar circumstance other than a state infringement, the author is able to enforce her copyright rights to prevent a use of which she does not approve, whether for creative, cultural, financial, or political reasons. It is, in fact, not necessary for an owner of a work to provide a reason to take enforcement action against a clear case of infringement or to deny permission to use a work in a certain way.

As was widely discussed seven years ago, the Beastie Boys sued toy company GoldieBlox for using one of their songs for the simple reason that the band does not want its music used for advertisements of any kind.[2] And no further explanation is required. So, if a commercial entity can be prevented from using a protected work to engage in speech the author chooses to shun for any reason, it should be imperative that a state actor must be equally restricted from engaging in compelled speech, as this is an unequivocal violation of the First Amendment.

So, with regard to the congruent and proportional standard, copyright infringement should not be viewed solely in terms of financial harm or through the limiting metrics of volume and frequency. It should instead be understood that copyright is unique by conferring property-like ownership in the products of individual expression, which are simultaneously protected by another (and many feel the most sacred) constitutional right. Hence, any perceived injury to the Eleventh Amendment (historical debate on its meaning notwithstanding) should be substantially overwhelmed by the amount of constitutional heft embodied in the principles of copyright.

[1] The USCO report cites Tennessee v. Lane and the abrogation of immunity to enforce the Americans with Disabilities Act.

[2] At least it did not at the time. I have not checked to see if the Beasties have since changed their policy.

Rare Books Publisher Valancourt Versus The Deposit Requirement

On July 23, the District Court for the District of Columbia denied publisher Valancourt’s claims that the requirement to provide deposit copies of U.S. published works to the Library of Congress constitutes an unlawful taking under the Fifth Amendment and/or an infringement of speech under the First Amendment. Although many legal experts are likely to agree with the outcome, some may also find the reasoning a little tortured, while at the same time, rightsholders may be made aware of an obscure but significant hypocrisy in the Library’s authority to demand deposit copies. Namely, that in certain cases, the copyright owner receives no benefit in return for compliance.

There is nothing new, of course, about the general requirement that copyright owners submit deposit copies in order to participate in the copyright system. Or to put it more philosophically, the tradition of supplying deposit copies, dating back to England’s Statute of Anne (1710), is grounded in copyright’s modern purpose to incentivize the creation and dissemination of cultural works. In the United States, this principle was most expansively adopted in the 1870 revision to the copyright law, which consolidated the registration process at the Library of Congress with the clear purpose of growing that collection.

Today, the Library of Congress contains the largest collection of works in the world, thanks in no small part to its statutory authority to demand deposit copies of any work published in the United States. And in most cases, the deposit copy requirement is not terribly burdensome for authors or publishers, especially when submitting digital copies along with a registration application to the Copyright Office.

Nevertheless, §407 of the copyright law, which empowers the Library, via the Copyright Office, to demand copies, and even penalize scofflaws, contains an inherent conflict because the mandate is not explicitly a condition for the rightsholder to avail himself of full copyright protection. For this reason, Valancourt Books’s complaint against the Copyright Office, while perhaps strained on constitutional grounds, highlights an uncommon, but significant question of justice.

Background

The niche publisher Valancourt Books was founded by James Jenkins in 2015 and is today operated solely by Jenkins and his husband Ryan Cagle. Together they edit or oversee the production of books from old, rare, and hard-to-find manuscripts—some dating back to the 18th century—which are printed on-demand for customers, including educational institutions. Although many of the works they republish are long in the public domain, the companion material in the Valancourt editions, like scholarly introductions and footnotes, are subjects of copyright; and some of the books they print are still under copyright protection and are, therefore, used by permission of authors or their estates.

Valancourt does not register its books with the Copyright Office—or at least it did not register the 240 titles at issue in this litigation—but it does voluntarily place notices of copyright in the front material. The reason for the notices appears principally to let readers know that either the underlying manuscript and/or supporting elements in the book are protected by copyright. Particularly in a case in which Valancourt has obtained permission for limited, on-demand publication of an out-of-print book, they would reasonably not acquire a traditional publisher’s license but would need to notify readers that the author or her estate still owns the copyright.

In 2018, Valancourt began receiving letters from Copyright Acquisitions Division (CAD) of the Copyright Office demanding deposit copies (the “two copies of best editions” as articulated by statute) of all 341 titles in its catalog. Requiring a print-on-demand niche publisher to supply 682 books at its own expense is a substantial burden, which the Copyright Office has discretion to limit upon a request for “special relief.” However, it was only after Valancourt challenged the demand through legal counsel that the USCO eventually reduced the number of titles to 240 and amended the deposit format it would accept to electronic copies.

Valancourt averred that even the demand for electronic copies was too burdensome for a small operation to access and, in some cases, update older files into compatible deposit formats. Whether this claim is reasonable—files dating back to 2015 should generally work today—Valancourt elected to go big by filing a lawsuit against the Copyright Office and the DOJ, alleging that the deposit demand itself, as codified in §407 of the copyright act, is unconstitutional.

The First Amendment Claim

With regard to Valancourt’s First Amendment claim, the publisher is probably out on a legal limb when it argues that “because only those publishers that receive a demand letter from the Copyright Office can be fined for noncompliance, and because the letters are not sent out at random, the deposit requirement is also a content-based restriction in practice.”

Here, the court finds that there is nothing in the record to indicate that the discretionary practices of the CAD makes content-based decisions as to which publishers it contacts to demand compliance with the deposit requirement. As such, nothing about the nature of Valancourt’s claim appears to implicate an infringement of the speech right. Nevertheless, Valancourt is probably justified in feeling somewhat picked on due to the fact that the LOC/USCO rarely make deposit demands relative to the volume of works produced in the U.S.

The Fifth Amendment Claim

Under the Fifth Amendment, the state may not take private property without due process, which most commonly applies to real property and compensation for the taking of same. But here the court leans on Ninth Circuit precedent in response to another deposit demand case, reiterating, “[t]here is no question but that the materials are private property and that deposit with the Library is for public use,” but “Congress can reasonably place conditions on the grant of a statutory benefit.”

That may sound reasonable on its face because we are accustomed to complying with certain conditions when accessing various services provided by a state or federal agency. But copyright is a funny animal in this regard, and especially tricky in Valancourt’s unusual circumstance. The first problem is that copyright is not a conditional “statutory benefit,” but rather a statutory bundle of rights that attach automatically to any subject matter work fixed in the U.S. after January 1, 1978. The next problem is that although copyright notices are not required by law or administrative function of the Copyright Office, Valancourt’s placement of notices was the factor on which the court’s opinion turned in rejecting the takings claim. Here, it agreed with defendants that the notices constitute “receiving the benefits of copyright,” which obligates plaintiffs to comply with the deposit copy condition. But what benefits does Valancourt receive?

The big condition with which most creators are familiar is registration, which is not mandatory, but is a prerequisite to filing a claim of infringement in federal court. And, of course, submitting deposit copies is a condition of registration, which is reasonable enough as a bargain, but here’s the rub …

Section 407 of the copyright act, which gives the Copyright Office the authority to demand copies (and solely for the benefit of the Library) has nothing to do with the registration formality, which avails the owner of the full opportunity to enforce a copyright in federal court. Simply put, the Library has the authority to demand copies of works published in the U.S. (or levy fines for failure to do so), regardless of the rightsholder’s choice to avail himself of the benefits of registration. And while this disconnect may rarely be a conflict, and may not ultimately be found to rise to the standard of an unconstitutional taking, the Valancourt example reveals that it isn’t exactly equitable either.

Especially in this circumstance, in which this niche, on-demand publisher is responsibly providing rare books that comprise a mix of public domain and copyrighted materials, it is not unreasonable for Valancourt to feel it is trapped between a rock and a hard place. Its modest operation unquestionably supports copyright’s purpose to promote the progress of science, arts, and culture, which is the foundational principle on which the Library is authorized to demand copies in the first place.

A Case Worth Watching

Whether Valancourt’s complaint that providing the electronic copies is too burdensome is a question of fact that may yet be determined, and the publisher seems likely to appeal for a few reasons. For one thing, although the district court responded generally that the government may make services and privileges conditional within constitutional bounds, it did not directly address the underlying evidence that Valancourt arguably receives no benefit for compliance with the deposit demand. And there are certainly legal minds who may be inclined to call this a taking.

Further, if the publisher can show that even the electronic deposit burden is greater than de minimis (i.e. that it would be profoundly detrimental to the business), this may bolster a taking allegation and also animate an argument that, in this case, enforcement of §407 undermines the purpose of copyright. Simply put, if Valancourt can show that it cannot operate—and by extension other small publishers to which it alludes in its filings—that would clearly defeat the purpose to promote.

Photo by: jannoon028

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.