Tag: National Emergency Library

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.

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.