Tag: piracy

Publishers’ Suit Against Internet Archive is Pro-Author, Not Anti-Library

“The raggedy state of my books that some readers and educators hand me to sign is the best compliment of all.” – Sandra Cisneros –

The matter of Hachette et al. v. Internet Archive should be short work for a court in the Second Circuit (or any circuit). The allegations about IA imply an operation that is barely distinguishable from other mass-piracy enterprises. which have sent their owners to jail. The motion for summary judgment (MSJ), filed by the publishers on July 7, is a catalog of statements of undisputed material facts (SUMF), a fraction of which should obliterate IA’s claims that it operates within the most elastic reading of the copyright law.

In a follow-up post, I’ll discuss the legal questions presented and why I believe more firmly now than I did two years ago that IA will lose on every point in this case. But for the moment, I’m calling bullshit on the big theme IA tries to sell in the court of public opinion—namely, its claim to be just another library “doing what libraries do” and that it is, therefore, a target of a voracious publishing industry and a proxy for the interests of all libraries.

Without getting into the weeds, IA’s conduct is highly distinct from ordinary libraries for three key reasons: 1) its founder Brewster Kahle has repeatedly stated his agenda to obviate copyright law and make “every book in the world” available online for free; 2) IA engages in a scanning-to-ebook scheme that circumvents ordinary library licensing under its own theory called Controlled Digital Lending (CDL); and 3) even if CDL were well founded in copyright law, IA does not adhere to its own invented restrictions set forth by the regime.

So the contention that IA functions like any other library is untrue, as the aforementioned catalog of material facts makes clear, and offensive, as author Sandra Cisneros makes clear in her declaration to the court, also filed on July 7. “Real libraries,” she writes, “do not do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.” Simple and to the point. But Cisneros’s testimony in this matter contains multitudes.

Many authors will recognize their own personal battles with both craft and purpose when they read Cisneros divulge, “About three years after The House on Mango Street was published, when I was 33 years old, I found myself unable to pay the rent and considered killing myself because it was so painful to feel like I was of no value to society, even though I knew I was a gifted writer.” That’s more than an economic statement. It is existential in every sense. And countless artists have been there in one way or another.

So, to the snarky bros of tech utopia, the self-righteous wonks at EFF, the privileged dilettantes of anti-copyright academia, Cory Doctorow, and most especially Brewster Kahle, you are all invited, with prejudice, to go fuck yourselves. Because what, one might ask, was Cisneros’s solution to transforming the growing popularity of her work into a measure of financial sustainability for herself? Naturally, it was copyright law.

“…my agent of the last thirty-five years, Susan Bergholz, approached me at this time and helped me to enforce my rights as an author,” writes Cisneros, stating that she initially asserted her rights among some smaller publishers but notably not with Penguin/Random House—a relationship she describes as integral to sustaining her as an author.

This lawsuit is not about a billion-dollar industry seeking to hinder the lawful conduct of a real library. It is about a multimillionaire ideologue hijacking the author’s livelihood for his own commercial gain, and because he believes he knows best how the world should work. We have enough ideologues robbing individuals of their agency these days. Why is a tech baron seeking to rob book authors of their rights any better?

“It was like I had gone to a pawn shop and seen my stolen possessions on sale,” Cisneros tells the court about visiting the IA  platform and seeing her work distributed for free and without license. She also notes that she has personally given away many copies of her books to readers who, like her own childhood family, cannot afford to buy books.

Cisneros’s testimony is compelling because IA’s defenses cannot breathe in law, but only in PR, where cute graphics and grabby headlines falsely portray it as a Robin Hood taking on industry. And lest we forget, her voice is not alone. When this litigation was triggered in 2020 by IA’s so-called National Emergency Library, citing the pandemic as an excuse to distribute 1.4 million unlicensed titles, authors Colson Whitehead, Alexander Chee, and others sharply criticized the move. “The Internet Archive’s ‘emergency’ copyrights grab endangers many already in terrible danger,” Chee tweeted at the time.

More authors should continue to call out IA for its conduct—if not for themselves, then for the next generation of writers. “The ability of copyright law to incentivize the creation of new works will be profoundly undermined if Internet Archive devalues books further by continuing its mission to put bootleg copies of every book it can acquire on the Website,” the publishers’ motion argues.

It is a simple rule of economics that you cannot eliminate fair trade in distribution without destroying the incentive to produce—except perhaps as an eccentric hobby. “Aided by its industrial scanning apparatus and book pipeline, IA can realistically achieve its goal of offering 80% of all books currently residing in libraries within the decade,” the publishers’ motion states. If that ambition were realized, one ironic result could be shuttering real libraries around the country because an operation like IA would render those institutions obsolete.

But the more devastating and certain effect would be to kill many prospective writing careers in their fragile beginnings, a period Cisneros describes as discovering her voice when she found the child narrator for The House on Mango Street. She says, “Best of all, writing in a younger voice allowed me to name that thing without a name—that shame of being poor, of being female, of being not quite good enough, and examine where it had come from and why, so I could exchange shame for celebration.”

That’s the author Brewster and his swarm of elitist amici want to deny both income and the right to make her own choices about her work. As she writes in a latter chapter in Mango Street, “People who live on hills sleep so close to the stars they forget those of us who live too much on Earth.”

Note: Some quotes by Cisneros are transcribed from the introduction to the audiobook version of The House on Mango Street, and my punctuation may not match hers.

NOTE: Originally published that Neil Gaiman criticized the NEL, as reported by NPR. Gaiman later tweeted that the article misrepresented his views.

U.S. Court Orders Pirate Site Blocking. Internet Should Break Any Day Now.

And if it did, really at this point…?

As reported on TorrentFreak yesterday, the District Court for the Southern District of New York handed down three nearly identical rulings in copyright infringement complaints against three pirate streaming entities. Finding for the plaintiffs, who comprised several Israeli film and entertainment companies, there was nothing remarkable about the outcome of the decisions but for one feature. The pirate site owners, who did not defend themselves or appear in court, lost by default judgment, and the plaintiffs were awarded statutory damages to the maximum $150k per infringement for a total of over $23 million for all three suits.

But Andy Maxwell at TF is right that what is unique about these decisions is the district court’s order to all U.S. ISPs, which states the following:

IT IS FURTHER ORDERED that all ISPs (including without limitation those set forth in Exhibit B hereto) and any other ISPs providing services in the United States shall block access to the Website at any domain address known today (including but not limited to those set forth in Exhibit A hereto) or to be used in the future by the Defendants (“Newly-Detected Websites”) by any technological means available on the ISPs’ systems.

In other words, site blocking—a form of injunctive relief that has been applied in Europe, Canada, Australia, and other democratic countries (without breaking the internet), but which has historically not been so vigorously applied in the U.S. as this order demands. Stay tuned for wailing and gnashing of teeth from the internet industry and the usual network of “digital rights” groups proclaiming this decision a disaster in the battle for internet freedom and the speech right. And as Andy forecasts, we will likely hear renewed incantations of the acronym SOPA. “More than a decade after U.S. lawmakers scuttled the controversial SOPA legislation that would’ve required ISPs to block pirate sites, a US court has demonstrated that the ability to block sites has been available all along.” he writes in his intro.

And that’s not entirely without merit. One reasonable criticism of the SOPA/PIPA legislation was to ask whether it was somewhat redundant in light of the fact that injunctive relief of this nature was and is already available to the courts. Ordering an unnamed third party in a complaint to cease facilitating harmful conduct is not groundbreaking law, which is one reason why all the shouting about that legislation ten years ago was so ridiculous.

Still, stay tuned for the Knights Who Say SOPA to say SOPA once again in the hope of frightening people into believing that blocking access to a few criminal websites will lead to the death of the “open internet.” And this makes me think of a twist on another Monty Python routine, only in this case, the irony is a bit different. Because what has the “open internet” done for us other than conspiracy theory run amok, teenage suicide and depression, help turn America’s conservative party into a religious cult, allow rampant data leaks, aid an coup d’etat by a U.S. President, destroy the right of privacy, violent insurrection at the Capitol, novel ways to harass women, and battering the Fourteenth Amendment to a rhetorical pulp? Other than all that, what has the open internet done for us? Cue Michael Palin: “You can wish people Happy Birthday.”

I know. There are some other benefits, even on social platforms, and I use them myself. But the funny thing is that we can have those benefits without the lawless free-for-all bullshit promoted under the banner of “openness.” In the meantime, site blocking a few pirate sites? Bring it on.

Addressing Fair Use Rhetoric in Debate Over SMART Act

On March 18th, Senators Tillis and Leahy of the IP Subcommittee introduced the SMART Copyright Act. The major functions of the bill, as codified in a proposed new Section 514, would empower the Librarian of Congress to approve designated technical measures (DTM) for identifying infringing material via a triennial rulemaking process. For a detailed description of the proposed rules and remedies in the bill, see Copyright Alliance CEO Keith Kupferschmid’s post. In this post, I wanted to respond to one criticism of technical measures for copyright enforcement—namely that they cannot account for fair use—but first, a recap of the background.

The SMART Act is a legislative response to the fact that after almost 25 years, the OSPs have rarely held up their end of the bargain under the terms of the Digital Millennium Copyright Act (DMCA), ratified in 1998. The foundation for all of Section 512 was predicated on the argument by the service providers of that period that they needed a liability shield against civil litigation stemming from the inevitability that customers would post copyright infringing material to their platforms. Thus, the statute lays out the conditions under which a platform can maintain the “safe harbor” shield, and as many copyright owners know, the major OSPs since then have not always complied with these conditions in good faith.

For the past quarter century, the major platforms have consistently avoided compliance with the notice-and-takedown process by, for instance, erecting unnecessary roadblocks for copyright owners to submit requests. Or, as a Virginia federal court recently affirmed, COX Communications remains on the hook for a billion-dollar damage award due to its failure to comply with the DMCA condition requiring the removal of repeat infringers.

These and many other examples paint a picture of a service platform industry that has fostered a culture of turning a blind eye to infringement and a reluctant, scattershot compliance with the statues they themselves lobbied to write. But specifically in regard to §512(i), which requires collaboration with copyright owners to develop standard technical measures (STMs) for identifying infringing material, Big Tech straight-up ghosted on the matter.

Remember that when the DMCA was being debated and drafted, it was the OSPs who presented their own technological capabilities as an implied promise that STMs could be developed to identify and remove infringing material. But not only did those service providers, and the bigger ones who followed, never engage with copyright owners to develop technical measures, they also funded a network of organizations (you know their names)[1] to promote the general theme that online copyright enforcement is fundamentally bad for society.

Kevin Madigan, VP, Policy and/ Copyright Counsel at Copyright Alliance, describes in a new post how The Network predictably repeats the same unfounded talking points no matter what proposal is on the table. And they have certainly dragged these orcs out of the mud once again in response to the SMART Act. But even as we examine the pros and cons of the bill itself, we should not lose sight of the fact that SMART is a legislative response to the OSPs’ refusal to comply with the conditions their own industry negotiated in the days of Web 1.0. So, maybe we can put the hyperbole in the drawer and sit down like adults? I wouldn’t hold my breath.

Technical Measures Can Never Account for Fair Use?

One gremlin The Network likes to call upon whenever technical measures are discussed for identifying infringing material is that an algorithm can never identify fair use. It is an oddly defeatist argument coming from representatives for an industry that makes bold promises about AI, and hardly allows the lack of perfection to stop them from experimenting with new products. But even if it is true that no algorithm could ever account for fair use, I’ll be blunt and say that neither can most of the platform users The Network claims to represent.

Let’s be real. The minority of professional creators who endeavor to be informed and engaged on copyright matters struggle with fair use; the experts who have worked in copyright law their entire careers struggle with fair use; and the courts struggle with fair use. Naturally, The Network exploits this uncertain landscape to imply that we could never hope for an algorithm to get fair use right. But this logical leap, which is meant to end discussion, also obscures the fact that the average social platform user doesn’t get fair use right either. That is if he even considers the question at all.

The term fair use is bandied about by The Network to promote the idea that it is the default status of most uses of protected works. It is a rhetorical strategy that, when paired with the message that copyright enforcement is inherently a form of censorship, promotes an ideological agenda seeking to elevate the fair use exception to the status of a civil right. But although it is true that the fair use doctrine evolved in U.S. law partly in support of the speech right, it remains an affirmative defense to a claim of copyright infringement. And the distinction matters.

Not only does The Network consistently ignore the literal First Amendment safeguards in the DMCA (which would not be disturbed by the SMART Act), but when they assert that no AI could ever account for fair use, I suspect they are alluding to a much larger constellation of presumed fair uses than actually exists. In other words, the argument against STMs, on the basis of fair use, almost certainly encompasses the effort to expand the volume and types of uses that copyright critics believe should be excepted under the doctrine.

I cannot prove this assumption and would not claim that, if true, it necessarily simplifies the technological challenge at hand. But it if we are going to take the matter seriously at all, it is important to know which definition of “fair use” is being applied—one grounded in case law, or one which the copyright critics would like to revise as they see fit?

As a practical matter, if the average user of a protected work on a social platform makes a fair use of that work, it is more likely the result of dumb luck than a well-informed and carefully considered decision. This is a common-sense assumption based on the low probability that the average user knows anything about the fair use doctrine. And if that is not correct, then perhaps the entire foundation for the liability shield codified in Section 512 should be reconsidered. Because the premise for this whole conversation was, and remains, that the average user of the internet does not know much of anything about copyright law.

Moreover, we forget that the presumed neutrality of the service provider is in contradiction with the idea that a fair use analysis should be a component of technical measures in the first place. The role of platform management was anticipated by the DMCA to be somewhat deaf and dumb in the process. Infringing material would be removed upon receipt of a valid notice, and if the uploader of the material believed the use to be a fair use, he could file a counter-notice to that effect. The human actors on the two sides of this equation were always anticipated to play active roles, and although The Network insists that the low rate of counter-notice filing is predicated on fear alone, it is also plausible that it is the result of many uses of works that are not defensibly fair uses.

What know for sure is that tens of millions of infringing uses occur every day and that only the large, corporate copyright owners have anything close to the resources necessary to mitigate the scope of piracy online. Large platforms like YouTube have deployed their own technical measures (e. g., Content ID and Copyright Match) insofar as they serve the platform’s bottom line. But these systems do little or nothing for independent and small business creators, and leaving this class of professionals in the digital dust was not the intent of the DMCA. Whether some version of the SMART Act can address the problem remains to be seen. But these rhetorical arguments against even trying are as tedious as they are hollow.

[1] In case you don’t, the Electronic Frontier Foundation, PublicKnowledge, Re:Create Coalition, Fight for the Future, Library Copyright Alliance, Authors Alliance, and a host of legal academics.

Image source by: idaakerblom