Penguin Random House Demands Removal Of Maus From Digital Library Because The Book Is Popular Again

from the wow dept

We've said it over and over again, if libraries did not exist today, there is no way publishers would allow them to come into existence. We know this, in part, because of their attempts to stop libraries from lending ebooks, and to price ebooks at ridiculous markups to discourage libraries, and their outright claims that libraries are unfair competition. And we won't even touch on their lawsuit over digital libraries.

Anyway, in other book news, you may have heard recently about how a Tennessee school board banned Art Spiegelman's classic graphic novel about the Holocaust, Maus, from being taught in an eighth-grade English class. Some people called this a ban, while others said the book is still available, so it's not a "ban." To me, I think school boards are not the teachers, and the teachers should be able to come up with their own curriculum, as they know best what will educate their students. Also, Maus is a fantastic book, and the claim that it was banned because of "rough, objectionable language" and nudity is utter nonsense.

Either way, Maus is now back atop various best seller lists, as the controversy has driven sales. Spiegelman is giving fun interviews again where he says things like "well, who's the snowflake now?" And we see op-eds about how the best way get kids not to read books... is to assign it in English class.

But, also, we have publishers getting into the banning business themselves... by trying to capitalize on the sudden new interest in Maus.

Penguin Random House doesn't want this new interest in Maus to lead to... people taking it out of the library rather than buying a copy. They're now abusing copyright law to demand the book be removed from the Internet Archive's lending library, and they flat out admit that they're doing so for their own bottom line:

A few days ago, Penguin Random House, the publisher of Maus, Art Spiegelman's Pulitzer Prize-winning graphic novel about the Holocaust, demanded that the Internet Archive remove the book from our lending library. Why? Because, in their words, "consumer interest in 'Maus' has soared" as the result of a Tennessee school board's decision to ban teaching the book. By its own admission, to maximize profits, a Goliath of the publishing industry is forbidding our non-profit library from lending a banned book to our patrons: a real live digital book-burning.

This is just blatant greed laid bare. As the article notes, whatever problems US copyright law has, it has enshrined the concept of libraries, and the right to lend out books as a key element of the public interest. And the publishers -- such as giants like Penguin Random House -- would do anything possible to stamp that right out.

Filed Under: books, copyright, copyright abuse, ebooks, libraries, maus
Companies: internet archive, penguin random house

Internet Archive Would Like To Know What The Association Of American Publishers Is Hiding

from the it's-not-the-only-one dept

Last year when a bunch of the biggest publishing houses sued the Internet Archive, in the midst of a pandemic, over their digital library program, I was a bit surprised that the announcement about the lawsuit came not from any of the publishers themselves directly, but rather from the Association of American Publishers (AAP), which is officially not a party in the lawsuit. That alone felt a bit... sketchy.

And, now it may be an issue in the lawsuit itself. Last week, the Internet Archive asked the judge for a hearing because the AAP is attempting to withhold various responsive documents on the discovery requests that were made to the publishers themselves regarding their communications with the AAP, and a separate subpoena served on the AAP. And it appears the AAP really doesn't want that stuff to get into the hands of the Internet Archive's legal team.

This dispute concerns documents (i) responsive to the Internet Archive’s requests for production served on Plaintiffs and (ii) responsive to the Internet Archive’s subpoena served on the AAP. These withheld documents are critical to the Internet Archive’s fair use defense—specifically the fourth factor, market harm. The varying views of publishers regarding whether they objected to the Internet Archive’s activities, whether they regarded themselves as having been harmed by those activities, and whether that harm was of a large or of a small magnitude are key pieces of evidence as to whether Internet Archive’s nonprofit library lending causes any substantial market harm.

There's also a hint in the letter suggesting that the Internet Archive is suggesting that the only real "harm" caused by its Open Library was that it made it more difficult for the big publishers to collude (as they did with Apple regarding ebook prices) to jack up the prices on ebooks sold (but not really sold) to libraries.

And publishers’ communications regarding the source of that harm—for example, if the Internet Archive’s activities simply make it more difficult for publishers to agree among themselves on ebook prices, as they did in United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015)—will shed light on whether that harm is cognizable under the fourth factor. Further, the Internet Archive is entitled to explore whether Plaintiffs and other publishers conspired here as they did in the Apple case; if so, such anticompetitive conduct here may support an additional defense which could preclude infringement liability. See Saks Inc. v. Attachmate Corp., No. 14-civ-4902-CM, 2015 WL 1841136, at *12 (S.D.N.Y. Apr. 17, 2015) (“[H]istorically, the defense of copyright misuse has been successfully asserted most often in cases where anticompetitive effects were alleged.”). Finally, withheld documents are likely to be relevant to the Internet Archive’s laches defense. The requested documents will shed light onto why the AAP (and Plaintiffs), despite being aware for years of the Internet Archive’s digital lending library, waited until the summer of 2020 to sue.

The AAP is trying to argue that its communications with the publishers is protected by attorney-client privilege, which is made difficult by the fact that the AAP is not acting as the publishers' lawyers here, but rather as lobbyists.

Plaintiffs have not demonstrated beyond conclusory statements in their privilege logs that communications with the AAP were exchanged to solicit, receive, or give legal advice rather than to discuss business concerns and interests....

.... One of Plaintiffs’ justifications for withholding their communications with the AAP is that some AAP staff members are attorneys. But AAP employees who happen to be attorneys wear many hats. For example, the President and CEO of the AAP is also a lawyer, as is AAP’s Senior Vice President of Global Policy. While it is conceivable that these executives do legal work for the organization, the burden is on AAP to justify why particular documents are privileged, given these executives’ predominant business roles.

Also, generally speaking, if documents are attorney-client privileged, it means you don't share it with anyone who is not on the legal team. But, that's not what happened here:

Plaintiffs’ privilege logs also suggest that AAP employees who were not attorneys were copied on withheld documents, including communications staff—which suggests that the predominant purpose of the document may not have been to secure legal advice. United States v. IBM Corp., 66 F.R.D. 206, 213 (S.D.N.Y. 1974) (“no protection attaches to a document prepared for simultaneous review by legal and nonlegal personnel.”). Finally, several entries on Plaintiffs’ privilege logs reference communications either (i) solely between non-party third parties or (ii) between Plaintiffs and third parties (like authors and literary agents). Plaintiffs have not met their burden to show that privilege extends to any of these third parties.

There's some more in the letter, but it does seem pretty clear that the AAP desperately doesn't want the Internet Archive to know what it was talking about with the publishers regarding the plans around dealing with the Open Library.

Filed Under: collusion, copyright, ebooks, libraries, lobbying, open library, price fixing
Companies: aap, association of american pubblishers, internet archive

Freaking Out About Nazi Content On The Internet Archive Is Totally Missing The Point

from the moral-panics dept

The moral panics around anyone finding "bad" content online are getting out of control. The latest is a truly silly article in the San Francisco Chronicle whining about the fact that there is Nazi content available on the Internet Archive, written by the executive director of the Middle East Media Research Institute, Steven Stalinsky, who is quite perturbed that his own personal content moderation desires are not how the Internet Archive moderates.

For the past decade, Middle East Media Research Institute (MEMRI) research has been exposing the Internet Archive's enabling of Al-Qaeda, ISIS and other jihadi propaganda efforts and its function as a database for their distribution of materials, recruitment campaigns, incitement of violence, fundraising and even daily radio programs. We wrote that ISIS liked the platform because there was no way to flag objectionable content for review and removal — unlike on other platforms such as YouTube. Today, the Internet Archive enables neo-Nazis and white supremacists in the same ways, and its terms of use still deny responsibility for content uploaded to it.

Right, so let's stop right there. Yes, for over a decade, we've written about ongoing complaints among the pearl clutching crew that you could find terrorist content online, along with their demands that websites pull it down, leading to social media sites shutting down the accounts of human rights groups who were documenting war crimes committed by terrorist organizations.

There's a key point in this: just because this information is available does not mean it is only used for nefarious purposes. Indeed, it is often used for important and valuable purposes -- such as documenting crimes. Or creating historical archives that show truly horrific crimes and ignorant thinking. Deleting that and sweeping it under the rug is not a reasonable approach either. But this entire article by Stalinsky seems premised on the idea that every bit of evidence of Nazi-ism should disappear. That seems incredibly counterproductive.

A recent two-year study I co-authored reviews the massive amount of content being uploaded, downloaded and shared by these groups on the Internet Archive and how it is used for recruitment and radicalization. This includes historical Nazi content such as copies of Der Sturmer, the virulently antisemitic Nazi-era propaganda newspaper, and speeches and writings by Adolph Hitler, Nazi propaganda minister Joseph Goebbels and other Nazi figures.

This historical material is interspersed with neo-Nazi content, including tens of thousands of pages with titles such as "Adolf Hitler: The Ultimate Red Pill," "666 Adolf Hitler Quotes" and "Joseph Goebbels, Master of Propaganda, Heil Hitler," and videos and writings by convicted Holocaust deniers.

And the answer to this content is... to set it all on fire? Like that won't come back to bite you?

Extremist works are available on the platform for download — and for radicalization — including seminal white supremacist books, training manuals for carrying out attacks, recruitment videos and several manifestos of white supremacist mass shooters.

And it's also available for activists, journalists, researchers and more to study it and figure out how to counter it.

Yes, these are serious issues and I can understand the concerns about how this information could be misused (though, despite an attention grabbing headline about how the website is a "favorite" for "neo-Nazis", the actual article supplies little to no evidence to support that claim). But simply hiding the information doesn't make it go away--nor does it deal with any of the underlying reasons such information might be appealing to some ignorant people. It is brushing a serious issue under the rug, and doing so in a way that can have seriously bad consequences -- as we've seen with social media sites deleting evidence of war crimes.

Everyone seems to think that content moderation is easy -- just do what I would do -- without ever thinking through the actual trade-offs and challenges of having to actually make these decisions. The article here seems to be written in incredibly bad faith, assuming that removing these historical documents is the only possible and acceptable solution, without bothering to grapple with the serious difficulties and trade-offs involved in making such decisions. Are there ways that the Internet Archive could better handle this content? Probably! Will being scolded as a "favorite" of "neo-Nazis" help make that work better? That seems unlikely.

Filed Under: archive, content moderation, library, nazi content, steven stalinsky, terrorist content, user generated content
Companies: internet archive

Filecoin Foundation Donates $10 Million Worth Of Filecoin To Internet Archive

from the huge-news dept

Some really fantastic news if you believe in (1) the wonderful work the Internet Archive does and (2) the future of a more decentralized internet (and, for what it's worth, you should believe in both of those things). The Filecoin Foundation has donated 50,000 FIL to the Internet Archive. This is approximately $10 million worth of Filecoin, which represents the largest single donation to the organization. Obviously, by the amount alone, this is a big deal and hugely important for an Internet Archive that is currently facing an existential legal attack by publishers who hate the very idea of libraries.

But it's doubly interesting, because Filecoin is a key component that many are hoping will empower a new more distributed web. And it appears that the Internet Archive is looking to take advantage of this aspect as well (as it should):

“Holy Crow! This is a big deal,” said Brewster Kahle, the Internet Archive’s founder. “And what are we going to do with it? We’re going to invest it in making the Internet Archive more decentralized, so that our digital history is available from thousands of computers, not just a few. The idea is to make a robust and private Internet that has a history that will persist over decades and maybe centuries.”

This is amazing news and exciting for both the future of the Internet Archive and a more distributed internet, not under the control of any single big internet giant.

Filed Under: distributed web, filecoin, library, support
Companies: filecoin foundation, internet archive

Amazon's Refusal To Let Libraries Lend Ebooks Shows Why Controlled Digital Lending Is So Important

from the libraries-need-books dept

The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won't allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing -- especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won't let libraries lend those ebooks out:

When authors sign up with a publisher, it decides how to distribute their work. With other big publishers, selling e-books and audiobooks to libraries is part of the mix — that’s why you’re able to digitally check out bestsellers like Barack Obama’s “A Promised Land.” Amazon is the only big publisher that flat-out blocks library digital collections. Search your local library’s website, and you won’t find recent e-books by Amazon authors Kaling, Dean Koontz or Dr. Ruth Westheimer. Nor will you find downloadable audiobooks for Trevor Noah’s “Born a Crime,” Andy Weir’s “The Martian” and Michael Pollan’s “Caffeine.”

I've seen a lot of people responding to this article with anger towards Amazon, which is understandable. I do hope Amazon changes this policy. But there's a much bigger culprit here: our broken copyright laws. In the physical world, this kind of thing isn't a problem. If a library wants to lend out a book, it doesn't need the publisher's permission. It can just buy a copy and start lending it out. Fowler's correct that a publisher does get to decide how it wants to distribute a work, but with physical books, there's the important first sale doctrine, which lets anyone who buys a book go on and resell it. And that meant that in the past, libraries have never needed "permission" to lend out a book. They just needed to buy it.

Unfortunately, courts seem to take a dim view of the first sale doctrine when it comes to digital goods.

However, a few years back, some very smart librarians and copyright professors and experts got together and created a system called Controlled Digital Lending (CDL), which aimed to (1) rectify this massive gap in public access to knowledge while (2) remaining on the correct side of copyright law. In its most basic form, CDL, involves libraries buying physical copies of books (as they did in the past), scanning those books (which has already been ruled to be fair use for libraries) and then lending out that digital copy only if they had the matching physical copy on the shelf. As the libraries and copyright experts correctly note, it's difficult to argue that this is any different than lending out the copy of the book that they bought.

But, of course, publishers have always hated libraries' ability to lend out books in the first place -- and have been itching to use the power of copyright to block that. Already, they charge libraries insanely high prices for ebooks to lend, and put ridiculous limits on how those books can be lent.

So, no surprise, last year, in the middle of a once-in-a-century pandemic, the publishers sued the Internet Archive, arguing that its Open Library project, which runs based on the CDL principles, violated copyright law. And, incredibly, a ton of people have cheered on this nonsense lawsuit -- even those who hate Amazon.

Yet, if you really want to stop Amazon from being able to block libraries from lending out ebooks, there's a simple answer: fix copyright law. Make it clear that Controlled Digital Lending is legal. Or, go even further and say that the First Sale Doctrine also applies to digital goods, as it absolutely should.

Filed Under: controlled digital lending, copyright, digital first sale, ebooks, first sale, knowledge, libraries
Companies: amazon, internet archive

Open Access Faces Many Problems; Here's One That The Indispensable Internet Archive Is Helping To Solve

from the now-would-be-a-good-time-to-make-a-donation dept

As Techdirt has reported many times, open access is a self-evidently great idea, but one that is still beset with many problems. That's not least because academic publishers are keen to remain in control of any transition to open access, and aim to maintain their extremely high profit margins whatever the publishing model. But there's one problem for open access that ironically derives from its greatest strength -- the fact that anyone can access journals at any time, for free. Because material is always available, librarians have tended not to worry about making some kind of backup. That's not the case for traditional journals, where there is potentially a big problem if a subscription is cancelled. The end of a subscription often means that readers lose their existing access to journals. To address this, librarians have come up with a variety of ways to ensure "post-cancellation access", explained well in a 2007 post on a blog about digital preservation, written by David Rosenthal. A recent article on the Internet Archive site provides some interesting statistics on the scale of the problem of creating permanent copies of open access titles:

Of the 14.8 million known open access articles published since 1996, the Internet Archive has archived, identified, and made available through the Wayback Machine 9.1 million of them... In the jargon of Open Access, we are counting only "gold" and "hybrid" articles which we expect to be available directly from the publisher, as opposed to preprints, such as in arxiv.org or institutional repositories. Another 3.2 million are believed to be preserved by one or more contracted preservation organizations, based on records kept by Keepers Registry... These copies are not intended to be accessible to anybody unless the publisher becomes inaccessible, in which case they are "triggered" and become accessible.

This leaves at least 2.4 million Open Access articles at risk of vanishing from the web... While many of these are still on publisher's websites, these have proven difficult to archive.

That's a pretty serious problem, and one which the Internet Archive is taking steps to address, for example by trawling through the petabytes of Web content that it has built up since 1996. There's an editable catalog with an open API that aims to provide "Perpetual Access to Millions of Open Research Publications From Around The World". Internet Archive has also created a full-text search index to over 25 million research articles and other scholarly documents.

Although few people are aware of this project, it is vital work. There is little point publishing open access titles, theoretically available to all, if their holdings simply disappear at some point in the future. The Internet Archive's copies will ensure that doesn't happen. They are yet another indication of the invaluable and unique role the site plays in the online world. Without it, we would already have lost so much of the amazing material that was once online, but which has since vanished except for the copies held by the Wayback Machine. Another good reason to support this incredible, free resource financially, and to help defend it from incredibly selfish attacks by publishers.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: culture, open access, research
Companies: internet archive

Internet Archive Responds To Publishers Lawsuit: Libraries Lend Books, That's What We Do

from the we're-a-freakin'-library dept

Last month, we wrote about the big publishers suing the Internet Archive over its Controlled Digital Lending (CDL) program, as well as its National Emergency Library (NEL). As we've explained over and over again, the Internet Archive is doing exactly what libraries have always done: lending books. The CDL program was structured to mimic exactly how a traditional library works, with a 1-to-1 relationship between physical books owned by the library and digital copies that can be lent out.

While some struggled with the concept of the NEL since it was basically just the CDL, but without the 1-to-1 relationship (and thus, without wait lists), it seemed reasonably defensible: nearly all public libraries at the time had shut down entirely due to the COVID-19 pandemic, and the NEL was helping people who otherwise would never have had access to the books that were sitting inside libraries, collecting dust on the inaccessible shelves. Indeed, plenty of teachers and schools thanked the Internet Archive for making it possible for students to still read books that were stuck inside locked up classrooms. But, again, this lawsuit wasn't just about the NEL at all, but about the whole CDL program. The publishers have been whining about the CDL for a while, but hadn't sued until now.

Of course, the reality is that the big publishers see digital ebooks as an opportunity to craft a new business model. With traditional books, libraries buy the books, just like anyone else, and then lend them out. But thanks to a strained interpretation of copyright law, when it came to ebooks, the publishers jacked up the price for libraries to insane levels and kept putting more and more conditions on them. For example, Macmillan, for a while, was charging $60 per book -- with a limit of 52 lends or two years of lending, whichever came first. And then you'd have to renew.

Basically, publishers were abusing copyright law to try to jam down an awful and awfully expensive model on libraries -- exposing how much publishers really hate libraries, while pretending otherwise.

Anyway, the Internet Archive has filed its response to the lawsuit, which does the typical thing of effectively denying all of the claims in the lawsuit (though I will admit that I chuckled to see them even "deny" the claim that the Archive's headquarters are in an "exclusive" part of San Francisco (FWIW, I'd probably describe the area more as "not easily accessible by public transit," but that doesn't quite make it exclusive -- or at least not any more exclusive than most of the rest of SF)).

The Internet Archive admits that its headquarters are located in San Francisco, but denies that the corner of Funston and Clement Streets is an “exclusive area.”

The key part, of course, will be the defenses, and as expected the Internet Archive throws everything in starting with fair use, failure to state a claim, first sale, DMCA safe harbor, and statute of limitations and laches. The key ones are going to be fair use and the first sale issue. And the response lays out the basics of how this defense is going to be argued:

The Internet Archive does what libraries have always done: buy, collect, preserve, and share our common culture. In furtherance of that mission, the Internet Archive has received grant funding from the National Endowment for the Humanities, the National Science Foundation, and the federal government’s Institute of Museum and Library Services, among many other sources. Many libraries and archives, including the Library of Congress, Boston Public Library, University of Illinois at Urbana-Champaign, and smaller community libraries like the Allen County Public Library trust the Internet Archive to digitize books and other materials in their collections in order to preserve physical texts and to facilitate public access. The Internet Archive is part of a network of libraries around the world—each of which is using digital technologies to meet the many challenges of serving patrons with diverse needs and differing abilities and to ensure that the growing storehouse of human creativity is not lost because no one has the capacity to preserve it.

Like Plaintiffs, the Internet Archive believes that “[b]ooks are a cornerstone of our culture and system of democratic self-government” and “play a critical role in education.” Accordingly, democratizing access to information, and facilitating access to books in particular, has been a core part of the Internet Archive’s mission for decades. But, for many people, distance, time, cost, or disability pose daunting and sometimes insurmountable barriers to accessing physical books. Digitizing and offering books online for borrowing unlocks them for communities with limited or no access, creating a lifeline to trusted information. Readers in the Internet age need a comprehensive library that meets them where they are—an online space that welcomes everyone to use its resources, while respecting readers’ privacy and dignity.

[....]

The Internet Archive has made careful efforts to ensure its uses are lawful. The Internet Archive’s CDL program is sheltered by the fair use doctrine, buttressed by traditional library protections. Specifically, the project serves the public interest in preservation, access and research—all classic fair use purposes. Every book in the collection has already been published and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is what it means to check a book out from a library. As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource.

During the early days of the COVID-19 crisis, in response to urgent pleas from teachers and librarians whose students and patrons had been ordered to stay at home, the Internet Archive decided to temporarily permit lending that could have exceeded the one-to-one owned-to-loaned ratio. With millions of print books locked away, digital lending was the only practical way to get books to those who needed them. The Internet Archive called this program the “National Emergency Library” and planned to discontinue it once the need had passed. Twelve weeks later, other options had emerged to fill the gap, and the Internet Archive was able to return to the traditional CDL approach.

Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that libraries own.

In a blog post about this, Internet Archive Founder Brewster Kahle notes that beyond trying to kill the CDL, the lawsuit also looks to force the Archive to destroy the digital books it's scanned for so many libraries, and to preserve that history.

These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons. This form of digital book burning is unprecedented and unfairly disadvantages people with print disabilities. For the blind, ebooks are a lifeline, yet less than one in ten exists in accessible formats. Since 2010, Internet Archive has made our lending library available to the blind and print disabled community, in addition to sighted users. If the publishers are successful with their lawsuit, more than a million of those books would be deleted from the Internet’s digital shelves forever.

I call on the executives at Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the pressing challenges to access to knowledge during this pandemic. Please drop this needless lawsuit.

It really is quite incredible that these publishers are looking to effectively do a digital book burning in the midst of a pandemic.

Filed Under: books, controlled digital lending, copyright, fair use, library, national emergency library, publishers
Companies: internet archive

Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive

from the speak-up dept

I've seen a lot of people -- including those who are supporting the publishers' legal attack on the Internet Archive -- insist that they "support libraries," but that the Internet Archive's Open Library and National Emergency Library are "not libraries." First off, they're wrong. But, more importantly, it's good to see actual librarians now coming out in support of the Internet Archive as well. The Association of Research Libraries has put out a statement asking publishers to drop this counter productive lawsuit, especially since the Internet Archive has shut down the National Emergency Library.

The Association of Research Libraries (ARL) urges an end to the lawsuit against the Internet Archive filed early this month by four major publishers in the United States District Court Southern District of New York, especially now that the National Emergency Library (NEL) has closed two weeks earlier than originally planned.

As the ARL points out, the Internet Archive has been an astounding "force for good" for the dissemination of knowledge and culture -- and that includes introducing people to more books.

For nearly 25 years, the Internet Archive (IA) has been a force for good by capturing the world’s knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more. Over the past four weeks, IA’s Open Library has circulated more than 400,000 digital books without any user cost—including out-of-copyright works, university press titles, and recent works of academic interest—using controlled digital lending (CDL). CDL is a practice whereby libraries lend temporary digital copies of print books they own in a one-to-one ratio of “loaned to owned,” and where the print copy is removed from circulation while the digital copy is in use. CDL is a practice rooted in the fair use right of the US Copyright Act and recent judicial interpretations of that right. During the COVID-19 pandemic, many academic and research libraries have relied on CDL (including IA’s Open Library) to ensure academic and research continuity at a time when many physical collections have been inaccessible.

As ARL and our partner library associations acknowledge, many publishers (including some involved in the lawsuit) are contributing to academic continuity by opening more content during this crisis. As universities and libraries work to ensure scholars and students have the information they need, ARL looks forward to working with publishers to ensure open and equitable access to information. Continuing the litigation against IA for the purpose of recovering statutory damages and shuttering the Open Library would interfere with this shared mutual objective.

It would be nice if the publishers recognized this, but as we've said over and over again, these publishers would sue any library if libraries didn't already exist. The fact that the Open Library looks just marginally different from a traditional library, means they're unlikely to let go of this stupid, counterproductive lawsuit.

Filed Under: cdl, controlled digital lending, copyright, fair use, libraries, nel, pandemic
Companies: association of research libraries, internet archive

Senator Thom Tillis Seems Really Pissed Off That The Internet Archive Bought A Record Store To Make Rare Recordings Accessible

from the what-kind-of-monster...? dept

Senator Thom Tillis (or perhaps some staffer in his office who is desperate for a job as a legacy copyright industry lobbyist in his next job) really seems to have it in for the Internet Archive. Beyond trying to rewrite copyright law to make it favor the legacy players even more than it already does, and beyond telling copyright experts that they shouldn't even dare think of commenting on the state of copyright law today, Tillis really seems to have an infatuation with the Internet Archive wanting to help people by providing them information. I don't know what the library ever did to Tillis as a child, but as a Senator he sure seems to hate the very concept. He sent one very confused, misinformed, and angry letter to the Internet Archive over its National Emergency Library, and now he's sent another one after news broke that the Archive had purchased the distressed, but famed, Bop Street Records in Seattle.

When the news originally broke that the Archive had purchased Bop Street, most portrayed it as great news. The owner, Dave Vorhees, had decided to shut down the shop a month earlier, and he wasn't sure if he'd be able to sell off the 500,000 recordings the store held. So people were excited that the Archive stepped in -- and did so not with plans to lock up and hide the collection, but to find the gems that could be made available and do so:

Kahle has a particular interest in obscure recordings, he said. “High school marching bands, soundtracks for foreign movies you’ve never heard of — those are just treasures.”

The diversity and quality of the Bop Street inventory, which includes more than 100 albums by jazz pianist Fats Waller as well as a healthy selection of classical music, rock, R&B, jazz, country and other musical genres, was exactly the kind of thing the Internet Archive is on the lookout for, Kahle said.

If you can't tell, Brewster Kahle has the mind of someone looking to preserve and share culture.

Thom Tillis, on the other hand, has the mind of someone who thinks that culture must be locked up:

According to a May 15, 2020 article in the Seattle Times, the Internet Archive has purchased Bop Street Records full collection of 500,000 sound recordings with the “inten[t] to digitize the recordings and put them online, where they can be streamed for free.” It is not clear from the article, or others, if you intend to digitize all of the sound recordings acquired from Bop Street. But it is clear that these sound recordings were very recently for sale in a commercial record shop and likely contain many sound recordings that retain significant commercial value. This raises serious alarms about copyright infringement.

As I understand, Bop Street Records, which the Wall Street Journal once deemed a top-five record shop in the country, focuses on collectible-quality vinyl records across a diverse range of musical genres. According to its website, there sound recordings includes “Rock, Soul/R&B, Jazz, Blues, Classical, Country, World and many other genres from the 1920’s to 1990’s.” The overwhelming majority-if not all-of these sound recordings are protected by U.S. copyright law, and thus may not be digitized and streamed or downloaded without authorization.

In a similar vein, I am aware of the Internet Archive’s “Great 78 Project,” which has already digitized-and continues to digitize daily-a vast trove of 78 rpm recordings, many of which are also commercially valuable recordings already in the marketplace, and has made those recordings available to the public for free through unlimited streaming and download. I understand that the Internet Archive is framing this and its other sound recording projects--which include both obscure gems for music fans and hits from the likes of Elvis Presley, Chuck Berry, and Johnny Cash-as preservation, but your current practices raise numerous potential issues of copyright infringement. The Bop Street collection is likely to add to that. Among other things, your sound recording projects do not appear to comply with the relevant provisions of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA), which deals only with pre-1972 sound recordings and would not allow for streaming or downloading. Moreover, there are additional copyrights, such as the musical composition and the album artwork, that are displayed on the Internet Archive website and would not be covered by an exception for preservation.

The inclusion of the Great 78 Project here just seems to be a gratuitous anti-culture attack by Tillis for no goddam reason other than he is against the preservation of cultural artifacts. The Great 78 Project has been out for a few years now, and it's a project that was put together not just by the Internet Archive, but in collaboration with the Archive of Contemporary Music and George Blood LP. The project is a recognition that tons of old 78rpm records are the only copies of that music ever recorded and my grandparents were the last generation to have easy access to a 78 rpm record player. The archival of those records falls into a murky space in copyright law because, thanks to insane copyright term extension. You can be pretty damn sure that anything on a 78rpm record, when it was recorded, was recorded with the clear understanding that by 2020, it would be in the public domain. The fact that some might not be isn't a condemnation of the Great 78 Project, but of Congress for destroying culture in this manner.

Now, someone who was actually, say, an elected official representing the public and who took an oath to protect and defend the Constitution, including the clause that pretty directly states that the purpose of copyright law is to "promote the progress," might look at that last paragraph and say, quite obviously, that if a jumble of messed up copyright laws are getting in the way of preserving music that no one can listen to, and of making it widely available -- or that merely posting album artwork is somehow against the law -- that maybe the law is pretty damn messed up, and that Congress -- or even the Senate Intellectual Subcommittee, of which Thom Tillis is the chair -- would want to fix those obviously broken laws.

But, nope. To Tillis it's an opportunity to attack a library that has stepped up to save a massive collection of rare items, and to give them a new life. To someone of Tillis' point of view -- that seems to merely be an unfiltered, unthinking conduit for some giant Hollywood interests -- this kind of public good must be stopped.

Filed Under: 78 rpms, archives, great 78s, libraries, old records, preserving culture, thom tillis
Companies: bop street records, internet archive