Tag: Internet Archive

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.

Internet Archive Uses Pandemic to Justify Looting

When I borrow a sentiment from Ayn Rand, you can bet I gave the matter some serious thought. But looting is the one word that comes to mind in response to last week’s move by the Internet Archive to launch what they call the National Emergency Library. Believing the coronavirus pandemic provides both a moral and legal foundation for its decision, IA suddenly made over one million published works, including contemporary books in print, available to “borrow” worldwide. And not even on a one-reader-at-a-time basis like a library. They just opened the floodgates. 

This “emergency library” is neither moral nor legal nor even necessary to meet a need suddenly created by the pandemic. Yet what is most galling about the IA in this regard is the pretense to public service and largesse against the backdrop of a real emergency. One cannot be “generous” with the labor and property of others, particularly those who are, themselves, vulnerable to the economic hardship caused by crisis. That is the true spirit of looting.  

Most authors are barely insulated from financial difficulty in the best of times. Many writers you might imagine as quite well off, some who even have august words like Pulitzer next their names, are among those who (as the economic reporters describe) could not lay hands on $500 in an emergency. And now we are all in the midst of an emergency. It is of course too soon to predict what long-term results will follow the ebb of Covid-19, but it is certain that millions of people are suddenly out of work right now. And among those so affected are creative workers, who generally earn average to below-average incomes under normal circumstances.

The mean income for authors from writing alone is $20,300, and the supplemental work that many of them do may presently be foreclosed, as it is for millions of people in multiple business sectors. If anything, it would seem that this moment of forced solitude and inertia is the perfect time to promote buying (or legally borrowing) a few books, rather than infringing the copyrights on about 1.4 million. 

In practical terms, the coronavirus has not reduced online access to cheap or free books, but it did prompt several major publishers to address educational needs by making digital books and other resources freely available to schools and individual students. Hence, IA’s claim that its “emergency library” was launched, in part, to make works available for students is a dubious one at best. Instead, the move reeks of opportunism—a stunt to promote the misguided anti-copyright agenda of IA’s founder, Brewster Kahle. Moreover, it reeks of cynicism in a moment when tens of thousands of creative workers are suddenly unemployed.

Musical artists cannot play live venues. Theaters are shuttered. Motion picture and TV production is at a near standstill. Book authors cannot travel, host promotional events, or lecture. Photographers cannot travel or do shoots that involve human subjects or crew. And many journalists who are still able to work are risking their lives to do so. At the same time, members of the creative community have responded to recession and fear in positive and useful ways—donating money, streaming or broadcasting free living-room concerts, making first-run movies available online, streaming theater performances, hosting online art classes for children, and the list goes on.  

By contrast, it is very hard to see Internet Archive’s “emergency library” as anything other than anti-copyright evangelism. In part, this view is supported by the fact that the library was launched on such shaky legal ground, that only the milieu of a major crisis could obscure the organization’s flagrant disregard for authors. In its response last week, the Authors Guild wrote the following:

“IA has made far-fetched claims that it is protected by fair use, but an appellate court case last year squarely decided the issue against them, as we advised them it would. There is simply no basis in the law for scanning and making copies of entire books available to the public. Now, IA has gone further and stripped away the one-user-at-a-time limitation so that any number of readers can access any of 1.4 million books at any time through a couple clicks….”

There are multiple exceptions and carveouts in copyright law for libraries and archives, and there are historic precedents for national emergencies. But those exceptions have limits and conditions designed to balance public service with the authors’ right to earn revenue for their work through legal distribution systems. Specifically, the statutory carveouts do not even apply to archives like IA, which is presumably why they assert that the pandemic somehow allows them to make these books available under the doctrine of fair use. 

This unfounded legal theory is exemplary of the archive’s ideological opposition to copyright. Kahle & Co. are of course entitled to advocate any view they want, but to camouflage their agenda in the fog of a pandemic is unconscionable. More particularly, the Internet Archive should not be surprised if, after this emergency has passed, they find themselves on the losing end of a lawsuit. If for no other reason, it may be necessary to affirm that their appeal to “emergency powers” under fair use in this case is legally untenable.  

As I wrote once before, the Internet Archive can be a wonderful service when used within the constraints of legality. Having just finished writing a book myself, I will admit that my bibliography has at least a half-dozen citations to IA’s digitized books from the very early twentieth or mid-nineteenth century (i.e. in the public domain). Providing access to materials that are otherwise hard to find without a lot of time and expense is the best and highest purpose of a digital archive. Such repositories can be invaluable to authors who, as mentioned, have limited resources to invest in their research. But if, while providing a useful service, the same archive seeks to degrade the already tenuous market for books still under copyright, then the whole value proposition becomes a vicious cycle of self-destruction. Not unlike looting during an emergency. 

Are You Having a Public Domain Party This Year?

Should auld creative works be forgot,
And never brought to mind?

There may be any number of reasons to feel anxious about the coming year, but at least we can take comfort in the fact that the song “Yes! We Have No Bananas” will be entering the public domain.  Sure, this may seem like clinging to a bit of floating timber immediately after a shipwreck in the middle of the Pacific Ocean, but one must hold onto hope where one can and start paddling.

I wish I could remember the right comedian to credit, but whoever it was, he made a joke that resonates this particular New Year’s Eve in context to the “big” copyright news of the day.  He said, “We should legalize pot just so all the stoners will shut up about it.” In sympathy with this comic’s weariness at repetitive zeal for small matters, I too am excited about tomorrow’s milestone in copyright history when, for the first time, works protected under the terms of the Copyright Term Extension Act (CTEA) of 1998 will enter the public domain.*  

To be sure, I am not excited the way the folks are at the Internet Archive, who will be co-hosting an event called The Grand Reopening of the Public Domain, where attendees can join special guests like Lawrence Lessig and Cory Doctorow to raise a glass and toast the arrival of works published in 1923 as though they have been missing for years. No. I’m excited about this particular copyright threshold because it just might be the day when the ebullient crusaders of the public domain will finally shut up about it. I mean I know they won’t, but one can dream. It is the New Year after all.

You see, for a very long time, many copyright critics have been insisting—in academic papers, in blogs, in tweets, etc.—that the production of new creative works depends on a “rich public domain,” and, therefore, the 1998 term extension has been depleting the common creative wellspring like a badly managed natural resource. Of course, this is the talking point when the subject is copyright’s term of protection; when the subject is enforcement against mass, online infringement, the response from many of the same people is that we are “enjoying more creative works than ever before.” This cognitive dissonance is never acknowledged.

The belief that 2019 marks anything other than a symbolic milestone for copyright critics to share a group high-five is based on the parlor trick that it is always easy to make predictions which nobody can effectively disprove. I have little doubt that, in years to come, someone somewhere will do something interesting with works from 1923, 24, 25, and so on, as works published in these years fall into the public domain; but at the same time, I also predict that there will be little measurable difference in overall creative output as a direct result of this much-celebrated threshold in copyright history.

I recognize that this prediction begs the question as to how one measures “creative output,” and that it wants classifications like professional vs. amateur, niche vs. popular, indie vs. industrial, etc. But by any metrics we might use, my skepticism is grounded in four simple, observable facts: 

  1. works protected by copyright are not inaccessible for consumers or new creators;
  2. most creators “build upon” existing works in ways that do not implicate copyright infringement in the first place;
  3. creative works have been produced for centuries, so the entire public domain universe is already much larger than the universe of works under copyright;
  4. with regard to general access, online piracy has forced so many works into an effective “public domain,” that it is absurd to argue that the copyright expiration on works published in 1923 represents significant, new opportunities of any real consequence.

None of what I say is meant to diminish the value of the public domain or to advocate perpetual copyright. But I do want to temper the excitement of the moment, which seems to imply that new possibilities for enlightenment and creativity are about to be unshackled from the bonds of darkness, ignorance, and greed. According to Wikipedia, the 1923 retail price for Agatha Christie’s Murder on the Links was $1.75 ($25.70 in 2018); and today, the Kindle versions of Christie novels average between $2-3, while libraries still provide books for free. So, copyright is doing what exactly to general access to these works?

Also, I see that the first of Charlie Chaplin’s feature films, A Woman of Paris, will fall into the public domain tomorrow. This brings to mind the day a few years ago when my teenager went to some school event dressed as Chaplin’s Little Tramp, and all her peers asked who she was supposed to be.  Assuming my kids’ school is a fair representative of “average” in America, it would appear that Chaplin’s Tramp, once the most recognized character in the world, may be lost to oblivion among contemporary adolescents.  

Assuming this is true, it cannot be explained by copyright terms. After all, every one of Chaplin’s shorter films, including his six-reeler The Kid, is in the public domain.  And doubtless many of these films are online, uploaded to YouTube and elsewhere. So what accounts for this gap in cultural literacy among my kids’ contemporaries? Several factors, I’m sure, not least of which is that they are consuming very different forms of culture (e.g., YouTubers sharing personal experiences) that are as alien to me as Chaplin is to them.  

Whether we can judge our kids’ cultural experiences to be qualitatively better or worse than our own experiences at the same age, I’ll bet anything that copyright terms will be a non-factor in any comparative analysis one might attempt. What we can know for sure is that the next generation of adults has more on-demand access to more content—through both legal and illegal channels—than any generation in the history of people; and yet, it is not entirely clear that they “know more” than their parents and grandparents.

Relatedly, I saw a classic example over the holiday of a case for perpetual copyright (at least rhetorically) in the form of a TV film adaptation of Oscar Wilde’s The Canterville Ghost.  It was a production so devoid of several major themes, or humor, present in the original story that Wilde himself would be forgiven for haunting the producers, to say nothing of legally stopping the project from being made. So, works falling into the public domain do not exclusively result in uses of great value. Had the same producers been required, by license, to be more respectful of the original work in the teleplay, the market value would be roughly the same, but the end product would likely be better.  

I acknowledge that everything I say here would still hold true if copyright terms were, say, twenty years shorter than they are today. I also believe that repositories like online archives are extraordinarily useful and understand why an archivist would want to make as many works available as soon as possible. But the general conclusion that “copyright terms are too long” is largely tautological, and individuals like Brewster Kahle of the Internet Archive are too eager to misrepresent copyright history and to attack the interests of living, working creators.    

The general message boils down to copyright terms are too long because they seem too long, even though nobody has yet demonstrated with any substantive data that the term of protection is having a negative effect on copyright’s original purpose to promote progress. Meanwhile, as explained many times, the CTEA was not some capricious, arbitrary term extension, but was effected in order to establish parity with trade partners in the EU and elsewhere so that American authors had the same benefits as their foreign counterparts.  

So, in response to all the hype about what will enter the public domain tomorrow, next year, and the years to follow, I believe this moment is a lot of ephemeral noise (i.e. an excuse for a party) that has scant relevance to the reasons why liberal democracies demand a rich, diverse anthology of informative and creative works in the first place. After all, one need only glance at the apparent success of toxic and fake content online to conclude that it takes much more than flooding the public domain with old works to foster enlightenment. And in that regard, the start of this post was unfair to the “stoners” because the arguments for legalizing marijuana actually had data behind them.

Wishing everyone—even the copyright critics out there—a happy and safe New Year. 

*  The CTEA established the current terms of copyright protection:  life-of-the-author, plus 70 years; or the shorter of 95 years from date of publication or 120 years from date of creation for works-made-for-hire. See statute.