Tag: Internet Archive

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.

Librarian Panel Advocates Naïve Changes to Copyright Law

In April 1787, as James Madison was limbering up his philosophical muscles ahead of the Constitutional Convention, Thomas Jefferson shipped him several crates from Paris filled with books comprising what one might call the Enlightenment in a Box. I mention this footnote of American history only to observe that every book Madison received—indeed every book that ever influenced an American Framer—is in the public domain, and, thanks to the digital age, more widely and affordably available than at any point in the history of Western civilization. Additionally, millions of works produced between 1789 and the Copyright Act of 1909 are likewise in the public domain and, if these have survived in some form, they are also likely available in various digital archives. And the list goes on.

Yet despite this extraordinary age of access—an era some would reasonably compare to the proliferation of the press—ignorance is in no short supply in the democratic world. Indeed, a highly creative form of ignorance—the conspiracy theory—seems to be galloping without rest along the “information superhighway,” and it remains to be seen whether Hell follows with its multitude of riders. All of which is to affirm what should be obvious even to a casual observer:  that more access to information is not the antidote to misinformation.

Nevertheless, on March 24, Public Knowledge hosted an online event that was ostensibly aimed at combatting both misinformation and injustice. And not at all surprising, the substance of the panel discussion alleged that the bugbear preventing the misinformed from becoming the informed is copyright law. Not so subtly titled Burying Information – Big Tech & Access to Information, one promotional tweet about the event read:

This powerhouse panel will discuss fighting #misinformation w/information through tools like #CDL, & how technologist (sic) can create inclusive, empowering tools to provide access to information for disadvantaged & marginalized communities.

The powerhouse included Brewster Kahle, founder of the Internet Archive; Michelle Wu, author of a concept called Controlled Digital Lending (CDL), Heather Joseph, Executive Director at SPARC;[1] and moderator Amanda Levandowski, professor at Georgetown Law Center.

The discussion led off with brief remarks by Senator Ron Wyden, who expressed his love for libraries, his belief that more good information is the cure for disinformation, and his view that copyright needs to change in order to provide equitable access for all Americans to the aforementioned good information. It was probably not a coincidence that the event was held on the one-year anniversary of the Internet Archive launching what it called the National Emergency Library (NEL), for which it is now being sued by four major publishers.

Controlled Digital Lending

CDL, the central topic of the conversation, is a legal theory (emphasis on theory) asserting that libraries should be allowed to scan the physical books they own and then loan digital copies, one consumer at a time, per each physical copy they have in their collections. So, if a library has four physical copies of a book, it can loan up to four at a time in any combination (e.g. four digital or one digital and three physical, and so on).

The two main rationales presented for CDL are, first, that digitizing a physical collection preserves the collection and makes it accessible in an emergency—Wu conceived the idea when the library where she worked was flooded—and second, at least according to the panel, the cost of licensing eBooks from publishers is too high and, therefore, makes poor use of libraries’ limited resources. The “publishers won’t sell eBooks, but will only license them,” the panel unanimously complains, and further asserted that the unreasonably high cost of licensing results in a reduction of diversity in material and limited access for the most vulnerable members of society.

If the preservation argument for digitizing a collection sounds reasonable, it is. And that’s why Section 108 of the copyright law already provides a carveout for libraries to digitize books for preservation purposes. So, if libraries are not doing this, it isn’t because the law prohibits it. Relatedly, digitizing books costs money, and to my knowledge, there is one major enterprise in the business of digitizing books for libraries. It’s called the Internet Archive. Just sayin’.

As for the argument that CDL is a necessary workaround to the publishers’ “extortionate” eBook licensing regimes, this complaint rings a little hollow, and I would love to see hard data to support that claim. I access a mid-size library system that loans eBooks and filmed entertainment though third-party licensing vendors, and the system itself does not appear to be failing or suffering more than the usual ups and downs experienced by libraries.

But more telling perhaps is that the overall tone of the panel conveyed a resentment toward licensing eBooks at any price. Indeed, the group was unanimous in describing the codification of CDL into law as a “first step” toward more substantial, and ongoing, amendment to copyright. Or if Brewster Kahle had his way, the abrogation of copyright altogether. He is an anti-copyright ideologue, who alleged during the event that the lawsuit publishers filed against the Internet Archive was an effort to kill the concept of CDL in the proverbial cradle, but he left out the fact that what triggered the litigation was IA’s decision to make 1.3 million books available without controls of any kind.

More importantly, as Michelle Wu proclaimed, encoding CDL into law should be considered a step toward amending §109 of the copyright act to encompass “digital first sale,” which happens to be a market-devastating proposal for a lot more than books (see posts here and here). Suffice to say that encompassing “digital first sale” into the copyright law—a proposal which has been rejected by Congress and the USCO after about twenty years of advocacy, by the way—would thrash the market for authors of creative works, who have already seen revenues dry up due to multiple effects of digital technologies and industry practices.

More Information is Not the Antidote to Misinformation

I too love libraries. I agree with Heather Joseph’s comment that everyone who appreciates what these institutions do has a love my librarian story. But I got the sense from some of the rhetoric in the discussion that librarians may be feeling a bit ignored (i.e. less relevant) in the digital age; and if that is correct, the focus on copyright and the major book publishers is a misguided response. Some statistics indicate that reading among Americans has been trending downward for years.[2] One source tells us that Millennials read more than any other generation, but both they and the Boomers substantially prefer print books to eBooks.[3] So, what does that tell us about the urgent need for CDL? I don’t know either, but the point is that it is not sufficient to allude to a “problem” without evidence when seeking a legislative “fix.”

Meanwhile, anyone who says that reading materials overall are too expensive (and therefore copyright must change) is simply ignoring evidence. The cost of new book buying is roughly on par with the cost of new book buying in previous decades. And access to eBooks, used books, and borrowed books is clearly greater than the pre-digital age. I will also give credit to Internet Archive and its sister organizations for making older works in the public domain accessible. 

So, a mutual love of libraries is where my agreement with this panel ends—especially with regard to the underlying thesis that the disinformation crisis now rampaging through democratic societies like a (well, a pandemic) can be cured with greater access to reading material. No, it cannot. Speaking as a lifelong liberal elitist, that assumption is liberal elitist hogwash that has been soundly rejected by evidence, and which, ironically enough, belies a failure by this panel and its constituents to allow evidence to influence their own biases.

We must acknowledge that the plague of toxic misinformation in the United States (e.g. QAnon, antivax, stop-the-steal, etc.) almost exclusively infects the privileged. The folks who believe and spread some of the most Republic-shattering nonsense are generally upper middle-class white people with plenty of access and way too much time on their hands. Many even have college degrees, but a lot of them are the people I see in my community—like the contractor, who makes considerably more money than the average book author, but he neither spends that money on reading material nor spends his time seeking “good” information.

We should be careful about implying that there is a correlation between susceptibility to disinformation and economic precarity, or other imbalances of justice. And Senator Wyden should really think twice about whether he endorses that view without data to support it. Because I think the empirical evidence suggests that privilege plus internet are the two main ingredients for producing some dangerously ignorant people. After all, it was not cash-strapped families who had the time and money to travel to D.C. on a Wednesday to engage in a little insurrection tourism.

So, I hope the powerhouse panel does not literally believe that the folks who assaulted police officers with flag poles and bear spray (and more broadly those who endorse that conduct) would feel different if only they had better access to Aristotle and Voltaire. Because, as noted, they do have access. We all have greater access to the entire Western canon than we have had at any time in history. Yet, this access does not appear to be mitigating “the rise of authoritarianism,” as Sen. Wyden noted in his introduction. An adage about horses and water comes to mind.

The implication that one must be wealthy to afford access to books—or that the wealthy necessarily read—is a false generalization. It also happens to distract attention from the more pressing problem that the most economically disadvantaged households do not generally own the electronic devices needed to tap into the bounty of digital material the panel thinks should be more accessible.[4]

Yet, Kahle insists we must fulfill the “original” dream of the internet to foster a “new Library of Alexandria,” and he denounces copyright as the obstacle to achieving that end. It’s a bittersweet reference to say the least. In case he and the panel haven’t noticed, a cold civil war in America has already lit the library (metaphorically) on fire. Competing realities is the new reality. And that ain’t copyright’s fault.

The implication that copyright makes society ill-informed is not only contradicted by a litany of counterfactuals, but pursuing a legislative agenda based on this premise would only make the misinformation problem worse. For one thing, despite the disciplined use of the word information by this panel, and other adherents to their views, the copyright revisions they advocate would affect all works, a vast majority of which are not informative per se.[5]

Informative works, mainly nonfiction books, are written by a number of authors who do not make substantial returns on their enormous investments of labor and skill. For every Chernow who breaks through, there are hundreds of authors writing detailed histories that, despite their significance—some even win Pulitzer Prizes—do not easily compete with thrillers, tell-alls, or even literary fiction. Divest these historians and biographers of their copyrights, and they will not write these books at all. You don’t need to burn a library; you can simply starve the authors of the incentive to publish.

Moreover, the librarians’ agenda to change copyright law is myopic, even to the extent that it betrays their unique role in the publishing/consumer ecosystem. They consistently fail to recognize that changes in the copyright statute apply to all categories of works and would be exploited by commercial interests that would not only harm creators, but could also degrade the relevance of libraries. “Digital first sale,” for example, would have made the business venture ReDigi a lot of money, creating an ersatz secondary market that would damage the primary market for music, but that kind of model would also limit or obviate the need for libraries to loan works.

If “digital first sale” were the law, libraries could spend their resources digitizing all the books they want and not hope to compete with a commercial venture that conducts P2P transactions in “used” eBooks. In that paradigm, publishers are harmed, authors are harmed, and libraries may be starved of revenue and/or constituents who need their services. There are many reasons why “digital first sale” has been consistently shot down over the years.

So, as I have proposed before, where librarians see new difficulties fulfilling their mission in the contemporary market, they should endeavor to be specific, and also account for factors that have nothing to do with copyright law. Library carveouts already exist in the statutes, and if adjustments to these exceptions can be proposed to serve a clear purpose for libraries alone, then let those arguments be made.

But in the meantime, the librarians (love them though I do) should resist the sweeping declarations that the fate of democracy (i.e. information) rests in their hands. In the futile effort to make more books available for people who won’t read them, let us not deprive the market of new books for those who will. And if Senator Wyden and his cohort are genuinely concerned about misinformation tearing apart democratic institutions, they can find much better projects than stripping American authors of their rights.

[1]  Scholarly Publishing and Academic Resources Coalition

[2] “On average, Americans aged 20 to 34 spend a mere 0.11 hours reading daily, which amounts to less than seven minutes per day.” https://www.statista.com/topics/3928/reading-habits-in-the-us/

[3] https://ebookfriendly.com/comparing-reading-habits-five-generations-infographic/

[4] “Roughly three-in-ten adults with household incomes below $30,000 a year (29%) don’t own a smartphone. More than four-in-ten don’t have home broadband services (44%) or a traditional computer (46%). And a majority of lower-income Americans are not tablet owners.” Pew Research Center.

[5] The libraries’ own data reveals that circulation of nonfiction works is roughly 46% nationally, and of that 82% are cookbooks. Library Research Service.

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.