Tag: eBooks

NYS Assembly Led Down the Primrose Path on eBooks Again

NYS Assembly

In December 2021, New York Governor Hochul recognized that she must veto a bill that would have prescribed the manner in which publishers may provide eBooks to public libraries. It isn’t necessary to rehash the details of that legislation—I wrote several posts about eBook bills—but only to restate the reason for the veto:  the law was unconstitutional. Why? Because state laws proposing to dictate terms for making in-copyright works available, even for libraries, is preempted by federal law.

Nevertheless, Assemblyman Angelo Santabarbara has introduced a new bill (A10544) that, although its mechanisms are different from the 2021 bill, is still unconstitutional. In fact, the operative part of the bill which, for instance, prohibits digital rights management (DRM) technology, would have the effect that a library is free to make eBooks available in any manner it sees fit and without limits of any kind. This plainly violates the Copyright Act. Even if the purpose of the proposal were well-founded in service to the public—and it is not—the states are simply not permitted to pass their own laws governing the terms under which copyright owners may distribute works to the market.

In addition to Gov. Hochul’s clear-eyed veto in 2021, related eBook bills have been proposed, litigated, and shot down in several states, begging the question as to why lawmakers seem determined to die on this meaningless hill. As discuss in this post examining the mid-sized library system serving my region in New York, there is no evidence suggesting that the public is underserved or that the current licensing regimes are so onerous as to harm the operation of libraries. Frankly, even if licensing were onerous, these laws would still be unconstitutional, but the combination of federal preemption and pointlessness does make one wonder–but not really.

These eBook bills are all variations on the same thematic effort by the same lobbying groups seeking to push an anti-copyright agenda using the Trojan Horse of the public library. Copyright antagonists couldn’t prove DRM, governed under DMCA Section 1201, was unconstitutional, so they try chipping away at the principle through state legislatures, masked beneath the white hats of institutions we all love. And indeed, because I do love libraries, I continue to hope that they will stop running interference for organizations that have neither libraries’ nor readers’ nor certainly authors’ best interests at heart. If nothing else, continuing to introduce bills that run afoul of Article I Section 8 is a waste of everybody’s time.

Photo by: vasiliybudarin

No, the Maus Ban is Not an Excuse to Weaken Copyright

Naturally, I join the outrage directed at any school board that would presume to ban a book—let alone because they don’t want students to confront the traumas of history—but I am almost as offended by the self-proclaimed defenders of culture in the anti-copyright crowd. How dare the McMinn County Board of Education ban Maus? But at the same time, how dare anyone write this?

Really? The survival of culture depends on libraries owning ebooks?

Yes, the tweet was posted by the same Maria Bustillos who inspired my last post about the library associations’ anti-copyright agenda, and I certainly do not mean to pick on her alone. On the contrary, I wouldn’t bother with that tweet if its fallacies were not endemic among organizations with the power to lobby legislatures. It is a sentiment within a hubristic narrative which asserts that, if not for copyright getting in the way, digital repositories like libraries would keep culture burning like a flame amid the forces of darkness. More specifically, Bustillos et al ask us to believe that libraries owning, rather than licensing, ebooks would serve as a hedge against censorship. But how?

If the Tennessee school board, and other officials who behave likewise, are indeed riding a wave of illiteracy toward authoritarianism, it is certain that those forces will not leave the libraries intact either. Moreover, if that is where we are headed as a nation (and there days we all wonder), forget the ebooks and prepare for civil war. But if that dire outcome is not what we are talking about, and we are instead witnessing just another sad example in a long history of bumbling, mouth-breathing attempts to ban books, then we can temper the “protect culture” language because it looks like the “evil” commercial market has got this one.

I admit it has been satisfying to watch the sentiment in that tweet wither in the sunlight of Maus topping best-seller lists in response to the Tennessee school board ban. Whether this groundswell is borne of curiosity to read a banned book or a desire to raise a middle finger at the censors (doubtless it is both), the entire narrative is an endorsement, not an indictment, of Art Spiegelman’s copyright rights. After the assault on the Capitol, I wrote a post reaffirming a claim I had made in 2013 that “A great bulwark against tyranny would be a class of unusually wealthy poets.” In principle, the consumer response to the Maus ban is exactly what I had in mind.

Libraries are wonderful institutions, but enemies of culture have a habit of burning them down. Or in the case of America’s public libraries, they can simply defund them as easily as they remove books from school curricula. Ebook collections in libraries are not a bulwark against that kind of wanton destruction, but empowering authors and artists with certain property rights in their work and, yes, money remains a powerful mechanism for keeping the philistines at bay.

Let’s Stop “Fixing Copyright” for the Sake of our Digital Future

As 2021 winds down, and this blog approaches the mid-point of its tenth year, I ask the following question: Can certain folks stop trying to “fix copyright” in deference to the digital age now that the internet experiment has failed?

For over twenty years, the principal argument underlying the “copyright is broken” narrative has been that the legal framework limits the democratizing power of digital technology to improve the world through unfettered access to everything. That premise was always flawed, but it seems especially absurd today, against the backdrop of evidence that the worst consequences of the digital revolution thus far are attributable to blind faith in that utopian ideal. We can see clearly now that there is no “home of Mind,” as Barlow predicted. There is no global public square where a more enlightened civility transcends the anachronistic laws of “weary nations” through the power of information and an ethics requiring nothing more than the Golden Rule.

Like all utopian visions, tech-utopianism did not account for human nature and human folly—for instance, that emotion is stronger than evidence as a motive for action and that no amount of free access to information is going to alter that principle. It is barely controversial at this point to say that social media has been toxic for certain individuals and for whole democratic societies, specifically because of its power to commend ignorance and for that ignorance to form the nuclei of social subgroups who take harmful action.

Yet, despite the dismaying evidence that science and civility are in retreat in the U.S. and other democratic nations, various organizations and individuals still insist that more access to more content is the antidote and that it is copyright law which stands in the way of salvation. Efforts to weaken the copyright statute, as well as efforts to dilute the efficacy of the law as it is, continue unabated, even while standing in the sticky goo of the failed experiment, which subverted so many principles to that alleged virtue of “openness.”

As discussed in an earlier post, a group of academic librarians met in late March with Brewster Kahle of the Internet Archive and Senator Wyden, and with straight faces, they opined that copyright law needs to change in order to provide better eBook access as an antidote to the disinformation that results in conspiracy theory and violence like the insurrection of January 6. The lack of evidence-based thinking revealed in that conversation alone is an irony that should speak for itself. To imply that making eBook lending cheaper for libraries is any kind of solution to our disinformation problem is magical thinking indistinguishable from the conspiracy theories themselves. And that’s before we address the specific policy flaws in their proposals.

Related to that discussion are the library association-backed eBook licensing bills in New York, Maryland, and Rhode Island, which amount to state compulsory licenses (therefore, likely preempted by federal law); and again, the argument presented for these short-sighted provisions is that communities are “shut out of the marketplace of ideas.” This is rhetoric straight out of the tech-utopian bible—exaggerating the role of the library—valuable as it is—to rescue society from its current perils through more voluminous eBook lending. But as I have previously noted on this topic, the majority of people engaged in some of the most dangerous, idea-free conduct do not suffer from lack of access, and what they do suffer from, librarians surely cannot solve.

Meanwhile, the ALI Restatement of Copyright project presses onward, ignoring criticism from the some of the most respected minds in IP academia, and is another example of an effort to weaken copyright law to serve that chimeric, cultural progress enabled by digital technologies. The 2014 memo articulating the rationale for the Restatement project states, “…it falls to the federal courts to attempt to improve the fit between a mid-20th century copyright law and 21st century digital technologies.” Yes. It falls to the courts. Or to Congress to rewrite the law. But impatient with these core functions of the Republic, a small group of ideologues took it upon themselves to write an alternative copyright law. And in the service of what?

Many of these same ideologues and associated organizations inveighed against passing the CASE Act to provide a small-claim copyright remedy for independent creators. Ironically, this is an amendment to copyright law in response to the digital age—namely, a response to rampant infringement enabled by digital technologies. But the “fixers” of copyright do not support proposals for independent authors to enforce their rights. They will likely continue their opposition as the small claims board begins operating next year, and their attacks will surely reiterate those virtues of digital life which have yet to manifest.

Looking solely at the U.S., it is tough to make the case that the open floodgates on content have, on balance, had a salubrious effect on the quality of discourse. The level of rancor and vitriol, from Capitol Hill to Main Street, has already boiled over in some of the worst spectacles in our history, and it shows no sign of abating. If experiments in copyright “fixing” were a drug trial, and “information” the main ingredient used to fight virulent idiocy, we would have to conclude that the treatment has little or no mitigating effect on the disease. Yet the copyright “fixers” continue to insist that the problem is dosage—that all we need is more.

It is only in the last few years that the American public, Congress, and the press have generally soured on the tech-utopian vision. While complaints vary across the political spectrum about, for instance, the conduct of social media companies, it does seem clear that the policy of laissez-faire for all things internet is about to expire. And a major reason for this change in direction is a broad recognition that the original theory—leading to the experiment in letting everything flow and expecting the good to outweigh the bad—has proven to be deeply flawed. So, in light of the fact that the “fix copyright” agenda was largely founded on the presumed success of that experiment, maybe it’s time to put down the toolbox and take a pause.