Tag: Featured

Brief in Defense of CDL Indicts Internet Archive and CDL

Among the amici who filed briefs in Hachette v. Internet Archive is former law professor and library director Michelle Wu, who, as the brief states, “…is recognized by many as the originator of the legal theory underlying controlled digital lending (“CDL”) ….” With her brief, Wu seeks to defend CDL as a doctrine and asks the court to limit its considerations to the facts related solely to IA’s conduct and to reject what she calls the publishers’ overbroad “attack” on CDL itself. She states:

CDL takes many forms. Many libraries around the United States offer works through CDL subject to their own individual platforms and practices. The arguments offered by Plaintiffs in support of their motion for summary judgment are a broad-based attack on all of them, shoehorning the very concept of CDL into a dispute about the Internet Archive’s individual implementation of it.

Before addressing the arguments presented in the brief, it is noteworthy that if Ms. Wu would have CDL inoculated against the conduct of Internet Archive, she and her colleagues have had ample time to distance themselves and the legal theory from IA’s founder and avowed anti-copyright crusader Brewster Kahle. Because one year after IA engaged in the infringing conduct that triggered the publishers’ litigation (March 2020), Wu was a key member in a Public Knowledge-hosted panel with Kahle (March 2021), entitled Burying Information – Big Tech & Access to Information.

Promoted in the wake of the January 6th insurrection as a remedy to misinformation, the panel blamed copyright law for contributing to the perils of widespread ignorance and conspiracy theories threatening democracy. Specifically, Wu et al. touted CDL as a necessary alternative to ebook library licensing on the grounds that this licensing is somehow keeping knowledge away from the very people who need it. Further, nobody on the panel disputed Kahle’s allegations that the publishers’ suit against IA was an attack on CDL and libraries in general.

So, in addition to the fact that it seems hypocritical for Wu to now ask the court to distinguish the underlying theory of CDL from the conduct and agenda of IA, it is no surprise that the arguments she presents echo the same general complaints against copyright rights articulated in that panel discussion. For instance, Wu reprises the theme that libraries are sentinels against the tide of rampant mis- and disinformation in the digital age—and repeats the claim that CDL is integral to that mission. “CDL is an essential pillar of countering misinformation by making library materials accessible, relevant, and competitive,” the brief states.

Even if that premise were not magical thinking (because lack of access is not the cause of the dangerously misinformed), Wu paints with too broad a brush in defense of her theory that CDL is inherently legal. Aside from the fact that there is no evidence that all the access to all the books in the world will disburse the fact-immune hoards from laying siege to reason,[1] Wu’s faith in the contrary belies a general prejudice against copyright law in lieu of articulating a concise argument for the narrow opinion she claims to want from the court.

Moreover, Wu may be blind to the fatal flaw in her central argument when she says that “many libraries” use CDL in different ways to achieve a variety of purposes. The problem with her list of general examples (e.g., CDL for preservation, serving readers with disabilities, etc.) is twofold. First, many of the examples stated or implied are activities exempted for libraries by statute. Second, the possibility that certain activities of several libraries may be allowed by fair use undermines the broad sweep of Wu’s defense by emphasizing that fair use is a fact-intensive, case-by-case consideration.

Finally, and perhaps most importantly, a fair use defense does not turn on a particular method of copying or making a work available. The CDL theory asserts that it is legal for a library to essentially make its own ebooks from the printed books in its collection, as long as it never loans more electronic copies than it owns physical copies that were legally obtained. Wu’s brief impliedly acknowledges that Internet Archive did not adhere to the “controlled” part of CDL, but in seeking to rescue “real CDL,” the brief is tellingly overstuffed with allegations that, even if true, are not applicable to a question of fair use.

For instance, Wu refers to budgetary constraints of libraries and the supposedly onerous cost of ebook licensing by publishers. But even if this allegation were valid for most libraries—and it does not appear to be—it would say nothing about whether a library’s version of CDL would fall under the fair use exception. On the contrary, Wu’s complaint about existing ebook licensing effectively acknowledges that CDL is a means of bypassing that licensing model and implies that this is justified by cost.

This argument is barely distinguishable from familiar rationalizations for large-scale piracy, which any court should find unpersuasive in general and should find meaningless as a fair use question. The amount of a licensing fee demanded for any work is immaterial to the question of whether a user who avoids paying the license is making a fair use. Wu’s attention to the cost of ebook licensing seems meant to distract from the reality that, even with the controls in force as prescribed by the CDL theory, the model displaces the authors’ right to license ebooks on their terms to libraries. And this market substitute consideration should ultimately doom a fair use defense on all four factors.

This consideration would be unaffected, even if ebook licenses were shown to be onerous because such a complaint, if valid, would properly sound in antitrust law or consumer protection or be argued before Congress seeking a new library-based exemption in the Copyright Act.[2] But because allegations of burdensome pricing models are not properly addressed by fair use, this suggests, again, that Wu and her colleagues defending CDL are admitting that the model is a market substitute and believe that it should be based on their own ideological reasoning

Several aspects of Internet Archive’s operation, including the activities at issue in this litigation, disqualify the entity from statutory exemptions accorded to libraries in Section 108 of the Copyright Act. Inasmuch as IA tries to stand in the shoes of real libraries, this is a PR message for social media but one without a foundation in law. And because IA is not a real library, a finding that its conduct is legal would only further embolden any commercial enterprise to engage in mass, unlicensed digitization and distribution of ebooks and other works.

By contrast, Wu’s insinuation of difficulties for legit libraries engaged in “many forms” of CDL are either unfounded or, perhaps, they inadvertently implicate some of those libraries in infringing conduct. Either way, facts pertaining to the operation of some number of unnamed libraries are not before the court in this case, and only a detailed accounting of those facts, library-by-library could have any legal bearing on those activities. As such, we must conclude that Wu and her colleagues simply want the courts to find that CDL is automatically fair use, and this would be doctrinally absurd. Because the courts are well aware that no conduct is automatically fair use. Not even for libraries.

[1] As noted in my post about that panel, the entire Western canon is more widely and freely available than at any time in history.

[2] In fact, the state ebook licensing laws for libraries have largely been premised on consumer protection and still failed, thus far, as unconstitutional state compulsory licenses.

Photo by: nito

Climate Disaster: A Rough Decade

This month is the tenth anniversary of The Illusion of More. Specifically, I believe the site launched on August 12, but I did not know what, if anything, I wanted to say to mark the occasion other than to thank readers for following and supporting the blog for a decade. And I am very grateful for that. But in light of the editorial focus of this blog and the state of the world, ouch. It’s been a rough ten years.

I asked in the intro to the first podcast in 2012 (an interview with journalist Christopher Dickey) whether digital technology was making things “suck faster,” whether the illusion of more access, engagement, and information would simply make otherwise reasonable people more rapidly and more virulently misinformed. For one contemporary answer to that question, read Francesca Tripodi’s recent article in Wired describing how Google’s changes to its “neutral” search engine can prioritize false information and reinforce a psychological vulnerability she calls the “IKEA effect,” (i.e., taking pride in something one has assembled). Tripodi writes:

Conspiracy theorists and propagandists are drawing on the same strategy, providing a tangible, do-it-yourself quality to the information they provide. Independently conducting a search on a given topic makes audiences feel like they are engaging in an act of self-discovery when they are actually participating in a scavenger-hunt engineered by those spreading the lies.

Or for a lighthearted version of the same principle, Craig Ferguson says in his Netflix special, “Tweet it, retweet it, retweet it again—fuckin’ true.”

As explained and reiterated in many posts on this blog, what began as a response to the lies and flood-the-zone tactics deployed in the anti-SOPA campaign of 2011/12 quickly encompassed a much broader concern about the major internet platforms (Big Tech) as a dangerous force that just might swallow democracy itself. This was not a popular view in 2012. Both official policy and public sentiment were predicated on a blind faith that more speech without restraint (i.e., direct democracy) had to be a good thing. That fallacy was central to rejecting the anti-piracy legislation just over a decade ago, and it persists today in, for instance, the Internet Archive’s rationales for its brand of book piracy.

Big Tech and its network of mostly left-leaning organizations said that harmful speech—from personal harassment to raving conspiracy—would be mitigated and safely marginalized by a fresh, invigorated dialogue enlightened by open access to information. Standing in the way of that utopian vision, they insisted, was “the government” in cahoots with corporate “gatekeepers” like the press, publishers, and Hollywood—all wielding the cudgel of copyright law to control what we are allowed to learn or experience. Meanwhile, the words of the prophets were written on the social media walls.

To suggest that, we seemed to be entering an age when information would be indistinguishable from bullshit, was to earn the title “luddite.” Even now, despite the overwhelming and terrifying events that have occurred in last ten years—all of it based on free access to deep wells of bullshit—the tech-utopians still believe in the illusion of more as surely as climate-change deniers refuse to see the science in the global havoc unfolding daily.

But lest anyone think that conspiratorial delusions are exclusively the opiate of the Trump cult, I would ask readers to remember the climate changes in our politics that were taking place before the Tiki Torch parade began. When the Ed Snowden story broke, and my friends on the left went nuts about those revelations, I wrote a post recommending calm, in which I opined, “While oversight is an essential, and believe it or not still extant, component of the American system, a universal and unwavering distrust in ‘the government’ is tantamount to distrust in one another, and this is the cancer that grows into a malignant threat to civil liberty.”

And here we are, witnessing real threats to the constitutional order of the United States, as the Former Republican Party (FRP) is consumed by a cult of personality, surfing waves of bullshit about the most basic mechanisms of government and law enforcement. On the other side, we share memes lampooning the “law and order” party for shrugging off credible threats to attack the FBI, the Attorney General, and a federal judge, but perhaps we choose to forget that this same conspiratorial rhetoric, comparing the American justice system to the KGB et al., was more universal before the election of 2016.

Like watching glaciers melt and rivers evaporate, it is easy to think that the erosion of trust in core institutions is beyond repair–that it is really just a question of who is doing the distrusting. And to believe that social platforms are not an underlying cause of this harm is as willfully ignorant as believing that easy access to firearms is not the key ingredient in mass shootings.

Social media offers some nice features, but on balance, it has made everything suck faster. It is a hallucinogen that produces twin chimeras named Information and Engagement, who gnaw on Common Sense and Humility until Narcissism and Arrogance prevail. Take for instance, this little collage made from responses to photographer Jeff Sedlik’s copyright lawsuit against tattoo artist Kat Von D:

I draw your attention to both the ignorance and the style in this hatecloud—not because it is rare, but because it is common to the point of predictable. This is how we talk now about almost everything. Those comments were made by ordinary individuals, probably decent people most of the time, but who would be unlikely to admit that they know less than nothing about the law or about Sedlik and his motives. And all that rancor directed at one individual, empowered by the technology designed to “connect people,” is just a response to a little copyright case. So, can we really be surprised that, by means of the same tech exploiting the same psychological frailties, tens of millions of people are easily duped into believing that an election was stolen, or that the U.S. Justice Department is indistinguishable from the Stasi?

In 2012, in that same intro to the first podcast, I quoted Mark Twain who said, “It’s not what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” A keen observer of human nature, Twain foretold the Big Tech Lie that is still flooding the zone with millions of other lies, which, like too much carbon in the atmosphere, may yet make the world uninhabitable.

Photo by: ole999

Doc Filmmakers Brief in AWF v. Goldsmith is Misguided

In both Andy Warhol Foundation v. Lynn Goldsmith (SCOTUS) and Hachette et al v. Internet Archive (SDNY), the amicus briefs are piling up fast. Not that I have any intention of writing about every argument presented in either case, but rummaging through the briefs in Warhol, one filed by a group of documentary filmmakers on behalf of AWF caught my attention. I support documentary filmmakers as much as any other type of creator, but the arguments presented to find fair use for AWF are inappropriate and ill-advised.

As a general critique, the filmmakers’ brief is too dramatic (and frankly dishonest), claiming that if SCOTUS affirms the Second Circuit’s finding against fair use for Warhol, the decision “could devastate the documentary film genre.” This hyperbole reveals the central flaw in the brief which implies that doc filmmakers have enjoyed a degree of certainty in fair use prior to the current ruling in Warhol and, therefore, argues that upholding the ruling will further disrupt that certainty. This is untrue.

If the filmmakers would have the Court believe that documentarians have thus far relied on the fair use rationale as applied by the district court in this case, history does not support this claim. On the contrary, if the Court were to agree with AWF’s reasoning as presented, it would create a novel presumption of certainty by broadening fair use to encompass almost any use that adds “something” to the world. Such a holding may seem attractive to many users of protected works, but it is incorrect to argue that this reasoning is consistent with fair use doctrine to date, and it is folly for any class of creator to be so eager to weaken their own copyright rights.

Doc Films Do Not Depend on the Question Presented

The filmmakers’ brief relies heavily on an accurate but incomplete portrait of the doc filmmaker as a paradigm among fair users. It is true that a documentary may fulfill several, or all, of the exemplary fair use purposes enumerated in the preamble of Section 107 of the Copyright Act. A film might be simultaneously commentary, criticism, education, and news reporting, which is why documentaries enjoy what the brief describes as a “favored” status in a fair use consideration.

But there is no foundation to argue that this status will be disturbed if the Court rejects AWF’s fair use theory, and the filmmakers’ brief does not present a compelling argument to the contrary. It merely alleges that such an outcome would be harmful, even though documentary filmmakers are in roughly in the same posture vis-à-vis fair use as they have been since 1978, if not earlier.

The filmmakers argue that if their work is subjected to the Second Circuit’s “side-by-side” search for transformativeness, this would expose many documentaries to unprecedented liability for infringement. But this claim is inapt as a matter of law and inconsistent with traditional doc film production in practice. As a legal matter, AWF v. Goldsmith is fundamentally (and frustratingly) about the conflict between transformation as fair use and transformation as protected derivative work, but this doctrinal tension is rarely present in a typical documentarian’s use of protected material, including most, if not all, of the examples cited in the brief.

Because documentaries tend to fulfill one or more of the paradigmatic purposes of fair use, they benefit from a legal pedigree that predates the “transformativeness” doctrine and much of the confusion it has spawned. Most fair uses of protected material in documentary films are relatively easy to identify without addressing the theoretical distinction between a transformative fair use and a derivative work. Consequently, the filmmakers’ concern that they will encounter new liability on the basis that works are often used in films “without alteration” is misplaced and a poor reading of classical fair use doctrine.

For instance, the filmmakers argue somewhat breathlessly that, “Relying on Warhol, at least one trial court has already held that brief uses of a photojournalist’s footage in documentary programming were not transformative as a matter of law because they were not altered and were thus “even less transformative than the use at issue in Andy Warhol.” (Emphasis added). But in fact, the opinion cited (Fioranelli v. CBS) reprises a litany of Second Circuit holdings dating back to 1997 and summarizes the court’s general view thus:

A common thread running through [Second Circuit visual art] cases is that, where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a “higher or different artistic use,” is insufficient to render a work transformative.

So, the holding in Fioranelli is not a direct result of Warhol, and the requirement to “comment on…” the original work is longstanding doctrine when considering factor one in a fair use analysis. Moreover, that lawsuit was triggered by multiple uses by sublicensees made in breach of the photojournalist’s original agreement with the network. This detail further weakens the filmmakers’ argument in Warhol because the defendant’s initial obligation to license in that case demonstrates that documentary films usually rely on a combination of licensed and fairly used materials. A finding for Goldsmith will not place an unprecedented burden on filmmakers to consider fair use for each work used in a project, and the filmmakers’ brief is instructive when it undermines its own argument, stating:

… many copyrighted excerpts in documentaries are clearly recognizable, and the new work often does not comment on or directly relate back to them. Rather, the borrowed works are generally presented in combination with other archival sources, original content, and commentary via narration or interviews. This is done to provide viewers with historical, cultural or social context, for the purpose—different from the originals’—of enhancing viewers’ comprehension of the films’ subject matter.

That description encompasses a spectrum of plausible fair uses under the same doctrine that rejects AWF’s theory. It may be that presenting a work “in combination” with other elements “to provide viewers with cultural or social context” meets the classical purpose of the fair use exception, particularly in a nonfiction work like a doc film. And maintaining this paradigm does not rely upon the question presented in this case, let alone a finding for Warhol.

Fair Use Remains a Case-by-Case Consideration

Fair use analyses are standard practice before the release of a documentary film. As the brief notes, producers typically obtain errors and omissions insurance, which may require a fair use assessment of the final film by an attorney. This analysis will not be made more difficult or uncertain by rejecting AWF’s fair use defense, and to the extent the filmmakers hope the Court may foster broader certainty by expanding fair use, I would caution them to be careful what they wish for. Under AWF’s theory, it would be substantially easier to infringe the copyright rights of the documentarian, too.

Documentary filmmakers are essential creators, but they do not require greater latitude in fair use considerations than the creators whose works they might use. If anything, the broad “favored” status enjoyed by documentary filmmakers obliges them to make a good-faith effort to understand which uses are reasonably fair use and which are not. There is ample guidance for the most common uses of works in nonfiction films, and where guidance is uncertain, licensing is available. In those instances where licensing may be unattainable, as alluded to in the brief, fair use is, as ever, a possible exemption but never a certainty.

Photo by: Gorodenkoff