Tag: Michelle Wu

If the Campaign Targeting eBooks is Reasonable, Why Lie About Copyright Law?

With the court’s unequivocal decision in Hachette et al. v. Internet Archive, and the continued failure of ebook legislation in various states, it is time for policymakers and librarians to understand the reason why this two-pronged campaign against copyright rights in ebooks is losing—because the academics, organizations, and lobbyists behind the effort are lying. Yes, that’s a big accusation to make about anyone, let alone professors at Harvard, Berkeley, Georgetown, etc., but what does one call disinformation in the service of an agenda?  Alternative facts?

In a recent example of the kind of dissembling scholarship being used in this campaign, Professor Michelle Wu, whose early work was seminal to the theory called Controlled Digital Lending (CDL), wrote an editorial for The Nation criticizing the court’s March 24 decision in Hachette. The CDL theory was the foundation of IA’s fair use defense, which the court rejected on all points, just four days after oral arguments. But rather than address the case law or merits in the decision, Wu claims the court simply does not understand the nature of American copyright law itself …

While Judge John G. Koeltl’s opinion addressed many issues, all his reasoning was based on one assumption: that copyright primarily is about authors’ and publishers’ right to profit. Despite the pervasiveness of this belief, the history of copyright tells us something different. What persuaded early state and federal government actors to establish copyright was authors’ reluctance to release their books publicly without the ability to stop the then-rampant piracy by publishers. The lack of copyright, then, was seen as a barrier to information reaching the public, and lawmakers enacted copyright to remove that barrier. This societal purpose is reflected in the wording of the Copyright Clause of the Constitution, which makes the spread of knowledge its goal, with copyright merely being a means to achieve that end.

That is a C- answer on a copyright history test. Wu’s implication that copyright was adopted at America’s founding period without regard for the author’s pecuniary interest, and for the sole purpose of spreading information is as thoroughly belied by the historic record as IA’s fair use defense was emphatically rejected by the court. At the very least, the two considerations were given equal weight, as described by Professor Jane Ginsburg in her paper A Tale of Two Copyrights.

To be sure, the American framers saw patent and copyright law as generally beneficial to the new nation, and men like Joel Barlow (inaptly cited by Wu) wrote encomiums on the subject, noting authors’ fears of unscrupulous publishers as one rationale for legal protection. But the conviction that the author was naturally entitled to the fruits of his labor was alive in copyright history—in England, Europe, and America—by the time the Constitutional Convention dipped the first nib in an inkwell.

Subsequent to the doctrinal kerfuffle in England known as the “Battle of Booksellers,” which culminated in 1774,[1] American copyright history, from Noah Webster to the suffragettes to the congressional record and international agreements, is abundantly concerned with the author’s personal and financial interests in the work. In fact, the majority of those state copyright laws to which Wu alludes, prioritized the author’s natural rights as the rationale for legislation, and an early draft by Madison of language that would become the IP Clause provides for copyright as a stand-alone declaration without preamble. I could go on.

If Professor Wu can support her unilateral “spread of information” rationale with more than opinion, she is welcome to do so. Of course, it was necessary to preface her editorial with a false origin story of American copyright—and slag Judge Koeltl in the process—because Wu then asserts that copyright doctrine and practice shifted from what it never was to an unprecedented focus on certain technological changes and to encroach upon consumers’ interests:

Copyright owners did not interfere with the end user. This was the case despite many user activities—such as making mix tapes, converting LPs to MP3s, writing fan fiction, and playing pop music at a piano recital—all technically potential infringements of copyright. Making a mix tape violates the reproduction right (also the distribution right if the tape is given to another person), converting an LP to an MP3 violates the right to make derivative works, and the playing of music at a recital violates the public performance right. The public, Congress, and the courts all ignored these behaviors as normal incidental uses or as instances of “fair use”—the allowance for which was not inconsistent with an author’s rights.

Not quite. First, there is no such thing as a generalized agreement about myriad conduct falling under the fair use exception. More importantly, there is a world of difference between individual, potential infringements, like mix tapes, and the kind of enterprise-scale infringement committed by the Internet Archive. Making over a million books available via the internet has very different implications than the little white infringements committed by individuals, but Wu is intentionally tossing it all into one big stew pot to promote a concept of copyright that does not jibe with fact or law.

Next, Wu alludes to several cases in which rightsholders litigated against technological innovations (e.g., Sony Betamax), and she characterizes these as attempts to improperly extend the copyright owner’s profit interest (profit being a dirty word) at the expense of the consumer’s right to access. I’ll spare readers an examination of each case in context to Hachette and skip to the bottom line:  all those defendants had their day in court, and so did Internet Archive. And it lost on every point. Thus, rather than even mention the legal considerations in Hachette, Wu pivots to the false, general allegation that the court is fundamentally confused about the purpose of copyright. Finally, she claims …

Copyright protects a work—not a format—yet the justification used to stop CDL appears to be that the copyright owner has the right to profit repeatedly from the sale of the same content in a specific format to the same buyer, even if the buyer only ever needs one copy and already owns one copy.

It is almost a deft enough sleight of hand that a reader might miss the trick when Wu pockets the reproduction right, characterizing the manufacture of unlicensed ebooks—literal copying—as format shifting. The reproduction of books is the foundational activity in copyright law, and I am inclined to believe that Wu and her fellow CDL advocates at other fancy law schools know this. So why are they pushing revisionist history to promote a legal theory that may be DOA as of March 24?

Whatever their motives, the practical reality is that policymakers and libraries are having their time and resources wasted by a well-funded syndicate of ideologues and unscrupulous organizations[2] hawking bogus legal theories and doomed ebook legislation in the states. In follow-up posts, I’ll address the status of those ebook bills and discuss exactly what the CDL white paper of 2018 proposes and its implications for real libraries.

[1] In Donaldson v. Beckett (February 22, 1774).

[2] EFF, Fight for the Future, Library Futures, Authors Alliance.

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.

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