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

Major Publishers Sue The Internet Archive's Digital Library Program In The Midst Of A Pandemic

from the not-a-good-look-guys dept

For many years, we've said that if the public library were invented today, the book publishers would sue it out of existence. It appears that the big book publishers have decided to prove me right, as they have decided to sue the Internet Archive for lending ebooks without a license.

Over the last few months, we've discussed why publishers and authors were overreacting in their verbal attack on the Internet Archive's decision to launch a "National Emergency Library" to help out during a pandemic. While many publishers and authors declared this to be "piracy," that did not square with reality. The Internet Archive was relying on a variety of precedents regarding the legality of libraries scanning books and lending books, as well as around fair use, to argue that what it was doing was perfectly legal. Indeed, the deeper you looked at the issue, the more it looked like the publishers and authors were upset with the Internet Archive for being a library, since libraries don't need special licenses to lend out books.

In other words, this was yet another attack on property rights. Publishers and some authors were trying to argue that the Internet Archive needed extra licenses to lend out legally made scans of legally obtained books. And to respond to a few common criticisms of the NEL: they were doing this since so many libraries and schools around the world were shuttered due to the pandemic, meaning that millions of books were literally collecting dust on shelves, un-lendable. More importantly, the NEL was not targeting recent releases (all books in the NEL are over 5 years old, and the commercial life of nearly every book is much shorter than that). Finally, contrary to some claims, the books in the NEL are not "bit for bit copies" of high quality ebooks. They are relatively low quality scans. If a more legit version is available, nearly any reasonable person would go for that instead (indeed, I've personally purchased multiple books after first borrowing copies from the Open Library before deciding to get a permanent copy). Also, most of the books available in the NEL are simply not available at all in ebook format, meaning that they're not available at all during the pandemic for many people.

There was some chatter that publishers might choose not to sue the Internet Archive over this, because losing this fight would seriously challenge a bunch of other copyright claims that they rely on. But, come on. These guys are so obsessed with copyright, how could they not sue? So, earlier this week, all the big publisher teamed up to sue the Internet Archive, represented by former RIAA lawyer Matt Oppenheim, who has a long history of being on the bad side of nearly every big copyright case.

Here's the thing, though: the publishers didn't just decide to sue over the National Emergency Library: instead they're also suing over the entire "Controlled Digital Lending" process. That's the program that the Authors' Guild has been whining about, which is the underpinning of the NEL. The CDL/Open Library program involves letting libraries lend out digital books if they retain a physical copy of the book on the shelf (so maintaining a one-to-one relationship between books lent out and books that the libraries have in their possession). The NEL took away that limitation, with the argument that this was allowed due to their reading of fair use in the midst of a pandemic with so many books locked up.

While I support the NEL -- I can recognize that courts may not buy their fair use arguments. On the CDL/Open Library front, though, that's just blatantly attacking a very standard library procedure. There can be no argument of "lost revenue" from the CDL, unless you're attacking the very basis of libraries themselves. And that's what the lawsuit appears to do.

The scale of IA’s scheme is astonishing: At its “Open Library,” located at www.openlibrary.org and www.archive.org (together, the “Website”), IA currently distributes digital scanned copies of over 1.3 million books. And its stated goal is to do so for millions more, essentially distributing free digital copies of every book ever written. Despite the “Open Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.

Except the identical argument applies to public libraries lending physical copies as well. It does not "grossly exceed legitimate library services." It makes books it has in its possession available for borrowing. Just like a library. Yes, the books are digitized, but libraries also distribute exact copies of books in their entirety for reading purposes to the public for free. Including voluminous numbers of books that are currently commercially available.

That's a LIBRARY.

The lawsuit tries to pay lip service to libraries, and to argue that what IA is doing is somehow different than a library, but it doesn't hold up to much scrutiny. Instead, the lawsuit and the Publisher's Association's press release about this are filled with nonsense rhetoric about how crucial books are to society and how evil, evil piracy is. From the lawsuit:

Books have long been essential to our society. Fiction and non-fiction alike, they transport us to new worlds, broaden our horizons, provide us with perspective, reflect the evergrowing knowledge of humanity in every field, spark our imaginations and deepen our understanding of the world. Yet, books are not self-generating. They are the product of training and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of work.

That's right: and for tons of people they way they read those books is from a library. The Association of American Publishers, led by fired former Copyright Register Maria Pallante is spitting fire over this:

Despite the self-serving library branding of its operations, IA’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace. IA scans books from cover to cover, posts complete digital files to its website, and solicits users to access them for free by signing up for Internet Archive Accounts. The sheer scale of IA’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world. IA publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.

In willfully ignoring the Copyright Act, IA conflates the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. IA not only conflates print books and eBooks, it ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and eBook lending.

Yeah, but that's kinda the point, isn't it? The publishers have been chipping away at "libraries" for years. Before ebooks, libraries could buy books and lend them out. They didn't need a special license. However, in recent years, publishers have rushed into the opportunity created by ebooks to change that, and to require licenses (crazy, expensive licenses) for ebooks. Just last fall we noted how publishing giant Macmillan (which, somewhat oddly, is the one big publishing house that is not a plaintiff) had gone to war with libraries, using its extreme ebook pricing and licensing terms to basically kill the market for ebook library lending.

It's that very new imbalance that the CDL/Open Library system was designed to fight back against. But, no, the publishers act as if they've always been able to block libraries from lending.

And, of course, filing this lawsuit in the midst of a pandemic (not to mention all the social unrest) in which libraries around the globe remain closed is just... crass.

For what it's worth, in looking down the list of works sued over, and doing a spot sampling, it looks like at least some (though not all) of the works being sued over are no longer available through the National Emergency Library. Since the NEL has always had a simple opt-out system, it does make you wonder why these publishers and authors didn't just make use of that. But also looking over that list, I see a bunch of books that I know are read in schools -- meaning that these publishing houses likely have just screwed over a bunch of teachers and students, many of whom already have physical copies of books, but find them inaccessible for the kids to read while we all still remain under lockdown.

So much for those books being "essential to our society."

But, of course, this is copyright, and the rule of the land tends to be that when big legacy copyright holders file lawsuits, they tend to win. I'd say there's a more than even chance that the Internet Archive loses. Not because it should, but because when big old industries scream copyright infringement, we've seen the courts buy it over and over again, even when the legal arguments are nonsensical. And, in this case, the Internet Archive's legal theories are certainly untested. There isn't real legal precedent to guide this. For its part, the Internet Archive has said that they hope this can be resolved quickly, however, there are very real concerns that this fight could bankrupt the entire Internet Archive.

I do wonder if the authors who spoke out against this really want to shut down such an important institution just so they can sell a couple more books.

Filed Under: controlled digital lending, copyright, covid-19, fair use, libraries, library, national emergency library
Companies: aap, hachette, harper collins, internet archive, john wiley, penguin random house

The Associated Press Has Some Explaining To Do About Its 'Tweeted Contract' To Reuse Viral Content

from the this-is-bullshit dept

Five years ago, we wrote a post detailing the crazy permission-asking media scrum that forms on Twitter when people post photographic or video documentation of something major happening. Under such tweets, you'll often see dozens of reporters asking for "permission" to use the images or videos in news reports. In many cases, fair use would likely cover the usage, but news organizations are understandably gun shy about copyright lawsuits from greedy lawyers who would be all too quick to sue them for merely embedding a tweet.

However, it appears that the Associated Press takes this to absolutely insane, and legally problematic, levels. And it appears that the AP would rather not talk about this.

You may have seen that, over the weekend, there was an explosion in downtown LA. Others in Los Angeles were able to see the fire and posted images and videos on Twitter. One of these was Brian Magno, who tweeted a 21 second video of the fire:

In response, the usual media scrum descended. Among them was an editor for the Associated Press, named RJ Rico. Rico didn't just ask for permission to use the video, like most other reporters, but with the request, he posted an image of what he called a "social media release form." I can't link you to the tweet because by Sunday evening Rico had protected his Twitter account (we'll come back to that later). Thankfully, I got a screenshot before all that happened:

The "Social Media Release Form" is truly a piece of work. Here's what it says:

Social Media Release Form

Please respond to this message with confirmation that you agree to the following:

The Associated Press and its subsidiaries and affiliates ("AP") shall have the world-wide, non-exclusive right to (and all consents necessary to) use, reproduce, prepare derivative works of, edit, translate, distribute, publicly perform, and publicly display the content throughout the world in perpetuity by any and all means now known or hereafter created in all media known or hereafter created, and AP shall further have the right to license these rights to others; and

That you are the copyright owner or the copyright owner's authorized agent and that you are full entitled to grant these rights in favor of AP and that there is no agreement or other restriction preventing this grant of rights. You agree to indemnify and hold harmless the AP and its licensees from and against any claims, losses, liability, damages, costs and expenses arising from any breach or alleged breach of these representations and warranties.

Okay, so, first things first, you should basically never, ever, ever just "agree" to a contract that someone tweets at you as an image. But there are some really problematic elements of this "release form." First is the fact that it grants relicensing rights to the AP, so that they somehow can pass along this image to anyone they want without any restriction. From this, it certainly seems like the AP could then choose to sell the licensing to others and the original copyright holder couldn't do anything about that even if he didn't like it. This term probably isn't quite as bad as some people are making it out to be, and is more in line with typical website terms of service licensing grants, that just cover that the rights can be passed on to future entities (should the organization come under control of another entity, for example). It's still pretty broadly worded though, and anyone agreeing to it should be careful.

But the much bigger issue is the indemnity clause, which would mean that if there were some sort of legal dispute over the image, all of the costs would basically fall back on poor Brian Magno. And that includes if there were a legal dispute with one of those licensees down the road that he agreed to let the AP pass along the license to. The indemnification clauses are, tragically, common in many freelance contracts, and I've taken to simply crossing them out of any writing contract I've engaged in (and have not had anyone push back on that yet). Suffice it to say, no one should agree to these AP terms. If you want a thorough explanation of how these clauses could come back to bite you, this is a good thread:

A bunch of folks started calling this nonsense out, including lawyer Jay Wolman, who worried that people were agreeing to the "release form" without speaking to a lawyer or understanding what they were agreeing to. In response, Rico blocked him on Twitter, which is pretty fucked up. Indeed, a bunch of law twitter started pointing out how ridiculous this policy is, and Rico started blocking more of them:

In short, you never know if there might be a legal dispute down the road, and there are countless reasons why there might be, even if you don't care about the image at all. And, yet, if there is, you've just agreed to pay a giant company's legal fees. With a tweet. Think about that.

That's bad. And, then on Sunday (as already noted), Rico took his entire account private.

I'm kind of wondering what that even means for anyone who agreed to Rico's tweeted contract in the first place. Unless they took a screenshot of it, they can't even prove that they ever saw it or what they agreed to -- because it's now hidden away.

Wolman began investigating this entire practice, and has traced it back at least to 2015 (coincidentally, a month after my article about how this Twitter media scrum descends on such things):

It's possible it goes back even earlier, but as Wolman has investigated, another AP reporter blocked him and then went private.

This is a horrific practice by the Associated Press, and it really should (1) apologize, (2) revoke any of those agreements for anyone who did agree to them, and (3) no longer do that again.

Filed Under: embedding, fair use, indemnification, journalists, permission, rj rico, scrum, social media release, tweeted contracts, viral content
Companies: associated press

EU Joins In The Bullying Of South Africa For Daring To Adopt US-Style Fair Use Principles

from the copyright-maximalists-made-me-do-it dept

As part of its copyright reform, South Africa plans to bring in a fair use right. Despite the fact its proposal is closely modeled on fair use in American law, the copyright industry has persuaded the US government to threaten to kill an important free trade deal with South Africa if the latter dares to follow America's example. If you thought only US copyright companies were capable of this stunningly selfish behavior, think again. It seems that the European copyright industry has been having words with the EU, which has now sent a politely threatening letter to the South African government about its copyright reform (pdf). After the usual fake compliments, it gets down to business in the following passage:

we once again regret the foreseen introduction in the South African copyright regime of provisions relating to fair use in combination with an extensive list of broadly defined and non-compensated exceptions. This is bound to result in a significant degree of legal uncertainty with negative effects on the South African creative community at large as well as on foreign investments, including the European ones.

Invoking "uncertainty" is a standard ploy, already used back in 2011 when the UK was considering bringing in fair use. It is manifestly ridiculous, since the US provides a shining example of how fair use does not engender any terrible uncertainty. America also offers a rich set of legal and commercial experiences others can draw on when they implement a fair use right. Here, "uncertainty" is just a coded way of threatening to withdraw investment in South Africa. It's an empty threat, though, since US history shows that fair use encourages innovation, notably in the digital sector, for which investors have a huge appetite. The EU letter goes on to tip its hand about who is behind this whining:

The European right holders continue expressing their concerns to us in this regard as they have done during the consultation period. All creative sectors in the EU, film industry, music and publishing industry have pointed to the possibility of revisiting their investment plans in South Africa due to these concerns. Other sectors, such as those which are high- technology based, could also suffer as a result of legal uncertainty created by the new regime.

That last sentence is revealing. If the digital sector had actually expressed its fears about "uncertainty", you can bet that the EU would have mentioned it as a serious issue. Since it is framed as "could also suffer as a result", we know that this is just the EU's hypothetical. It is an attempt to get around the awkward fact that high-tech companies love fair use in general, since it gives them far more scope to try out exciting new ideas. It's sad to see the EU slavishly doing the bidding of copyright's digital dinosaurs, and joining with the US in the unedifying spectacle of bullying a small nation trying to modernize its laws.

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

Filed Under: copyright, eu, fair use, innovation, south africa, uncertainty

Senator Tillis Angry At The Internet Archive For Helping People Read During A Pandemic; Archive Explains Why That's Wrong

from the that's-not-how-any-of-this-works dept

A few weeks ago, we wrote about the misguided freakout by (mainly) publishers and some authors over the Internet Archive's decision to launch the National Emergency Library during the COVID-19 pandemic, to help all of us who are stuck at home be able to digitally access books that remain in locked libraries around the country. A key point I made in that post: most (not all, but most) of the criticisms applied to the NEL project could equally apply to regular libraries. And perhaps that's why hundreds of libraries have come out in support of the project, even as those attacking the project insist that it's not an attack on libraries.

Either way, it was only a matter of time before publishers got their lapdogs in Congress to start making noise, and first out of the gate was Senator Thom Tillis, who is already deep into his attempt to make copyright law worse, and who last week sent a letter to the Internet Archive's Brewster Kahle that reads very much like it was written by book publishers. First it gets high and mighty about how the pandemic has "shown the critical value of copyrighted works to the public interest" which is just a weird way to phrase things. The fact that something valuable is covered by copyright does not automatically mean that copyright is helpful or valuable for that situation. Then it gets to the point:

I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.

A few days later, Kahle responded in a detailed and thorough letter to Tillis. It points out that the Internet Archive is well-established and recognized by the state of California as a library, and that it has already shown that it has a legal right to digitize books. And then goes on to explain that the point of the NEL is to help enable Tillis' own constituents to access to the books that their tax dollars paid for while they're locked up collecting dust inside libraries that are closed during the pandemic.

The National Emergency Library was developed to address a temporary and significant need in our communities — for the first time in our nation’s history, the entire physical library system is offline and unavailable. Your constituents have paid for millions of books they currently cannot access. According to National Public Library survey data from 2018-2019, North Carolina’s public libraries house more than fifteen million print book volumes in three-hundred twenty-three branches across the State. Because those branches are now closed and their books are unavailable, the massive public investment paid for by tax-paying citizens is unavailable to the very people who funded it. This also goes for public school libraries and academic libraries at community colleges, public colleges and universities as well. The National Emergency Library was envisioned to meet this challenge of providing digital access to print materials, helping teachers, students and communities gain access to books while their schools and libraries are closed.

It also highlights something else that many had missed: the NEL does not include any books published within the last five years -- which is pretty important, since the commercial value of a book usually exists in the first couple years after publishing. Indeed, a recent study highlighted how the vast, vast, vast majority of sales tends to come soon after a book is published and then sales decline rapidly. So the argument that the NEL is somehow taking away from author income is already somewhat questionable.

And, indeed, the Archive is currently seeing evidence that suggests the NEL is not actually impacting author earnings in any significant way:

In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.

The Internet Archive has also been highlighting case studies of teachers and students helped out by the NEL.

Kahle also explains to Tillis how he's wrong to say that copyright law does not allow this kind of lending. It's called fair use.

You raise the question of how this comports with copyright law. Fortunately, we do not need an “emergency copyright act” because the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances. As a result, libraries can and are meeting the needs of their patrons during this crisis in a variety of ways. The Authors Guild, the leading critic of the National Emergency Library, has been incorrect in their assessment of the scope and flexibility of the fair use doctrine in the past and this is another instance where we respectfully disagree.

The reference regarding the Authors Guild being wrong about fair use refers to its years-long fight to stop libraries from digitizing books, which resulted in a massive loss for the Guild's ridiculous interpretation of copyright and fair use.

In the end there are a bunch of important points here: even if Tillis is right that copyright is somehow proving its value in a pandemic (and he's not), that doesn't change the simple fact that this library is enabling people who cannot check out physical books from their locked community libraries to at least be able to access those books while remaining safe at home. The Internet Archive has legal scans of these books, and hundreds of libraries are supporting this effort. While it's true, as some authors and publishers highlight, that there are official ebooks for some books, many (especially older) books do not have them at all -- and those include lots of books that are commonly read in classrooms. And, as we pointed out last time, in cases where there are official ebooks, almost anyone would prefer to get those copies, because they are much easier to read and designed to be read on a reading device (specialized reading device, tablet, or phone) as compared to the NEL scans, which are straight scans of the book pages.

No matter what, it's a really bad look for Tillis to stomp around complaining that his constituents might actually be able to read books that are currently locked up in libraries. Remember that the entire intent of copyright law in the first place, and the subtitle of the US's very first copyright law, was that it be to enable learning. The Internet Archive is trying to help push forward that clear goal of copyright law... while Senator Tillis seems to want to stop it.

In the end, there's very little "there" there to the complaints about this project. It's difficult to see how it's harming author revenue in any real way, but it is clearly helping schools and students while the libraries and books they normally use are unavailable. And, there are strong arguments for why this is perfectly legal under copyright law -- and if the claim is that we should wait until that's absolutely proven in court, well, that kinda misses the whole point of helping out during a pandemic.

As professor Brian Frye recently wrote about all of this: "When you find yourself complaining about libraries, you might want to think twice about your priorities." And I'd say that counts double in the midst of a pandemic.

Filed Under: brewster kahle, copyright, covid-19, fair use, libraries, national emergency library, pandemic, thom tillis
Companies: authors guild, internet archive

Dr. Drew Pinsky Played Down COVID-19, Then Tries To DMCA Away The Evidence

from the copyright-as-censorship dept

Update: The full video is now back up and it's even worse than the original clip we posted. It's unclear if it went back up thanks to YouTube deciding it was fair use, or Pinsky removing the bogus takedown. Either way, watch it here:

Copyright system supporters keep insisting to me that copyright is never used for censorship, and yet over and over again we keep seeing examples that prove that wrong. The latest is Dr. Drew Pinsky, the somewhat infamous doctor and media personality, who has been one of the more vocal people in the media playing down the impact of the coronavirus. In a video that had gone viral on Twitter and YouTube, it showed many, many, many clips of Dr. Drew insisting that COVID-19 was similar to the flu, and that it wouldn't be that bad. Assuming it hasn't been taken down due to a bogus copyright claim, you can hopefully see it below:

As you can see, for well over a month, deep into March when it was blatantly obvious how serious COVID-19 was, he was playing down the threat. Beyond incorrectly comparing it to the flu (saying that it's "way less virulent than the flu" on February 4th -- by which time it was clearly way more virulent than the flu in China), he said the headlines should say "way less serious than influenza," he insisted that the lethality rate was probably around "0.02%" rather than the 2% being reported. On February 7th, he said your probability of "dying from coronavirus -- much higher being hit by an asteroid." He also mocked government officials for telling people to stay home, even at one point in March saying he was "angry" about a "press-induced panic." On March 16th, the same day that the Bay Area in California shut down, he insisted that if you're under 65 you have nothing to worry about, saying "it's just like the flu." This was not in the distant past. At one point, a caller to his show, again on March 16th, said that because it's called COVID-19 that means there were at least 18 others of them, and that's why no one should worry -- and Drew appeared to agree, making it appear he didn't even know that the 19 refers to the year not the number of coronaviruses, and even though there are other coronaviruses out there, this one was way more infectious and deadly, so it doesn't matter.

To give him a tiny bit of credit, on Saturday, Pinsky posted a series of choppy videos on Twitter in which he flat out said that he was wrong and he was sorry for his earlier statements, and said that he regretted his earlier statements. He also claimed that he signed up to help in California and NY if he was needed. But, even that apology seems weak in the face of what else he said in those videos... and, more importantly, his actions. In terms of what he said, he kept saying that he always said to listen to Dr. Fauci and to listen to your public health officials. Amazingly, at one point in his apology video, he insists that he thinks the real reason why New York got hit so bad is because of hallways and trains. Yet, in the video above, at one point he literally mocks NYC Mayor de Blasio for telling people to avoid crowded trains, saying: "de Blasio told them not to ride the trains! So they're not riding the trains! So I am! [guffaw] I mean, it's ridiculous."

Given that, it's a bit difficult to take him seriously when he claims that all along he always said to listen to your public officials, when just a few weeks ago he was mocking them. Indeed, as multiple people have pointed out, the issue here isn't so much that Pinsky was wrong -- in the early days, when there wasn't as much info, lots of people got things wrong about COVID-19 (though Pinsky kept it up way way after most others recognized how serious it was), but that he acted so totally sure about his opinions that this was nothing to worry about. It was the certainty with which he said what he said that was so much of the problem, including deep into it already being a pandemic with local officials warning people to stay home.

But, even worse, just as he was doing the right thing and mostly apologizing... he was trying to hide those earlier clips that made him look so, so, so bad. His organization began sending out DMCA notices. If you went to the original YouTube upload you got this:

That says: "This video is no longer available due to a copyright claim by Drew Pinsky Inc." Now, some might argue that it was just some clueless staffer working for Dr. Drew sending off bogus DMCAs, or maybe an automated bot... but nope. Drew himself started tweeting nonsense about copyright law at people. I originally linked to that tweet, but sometime on Sunday, after thousands of people -- including some of the most famous lawyers in the country -- explained to him why it was nonsense, he deleted it. But I kept a screenshot:

That says, amazingly:

Infringing copywrite laws is a crime. Hang onto your retweets. Or erase to be safe.

The wrongness-to-words ratio in that tweet is pretty fucking astounding. First of all, the layup: it's copyright, Drew, not copywrite. Make sure you know the name of the fucking law you're abusing to censor someone before tossing it out there. Second, no, infringing copyright is not a crime. Yes, there is such a thing as criminal copyright infringement, but this ain't it. Someone posting a video of you would be, at best, civil infringement. For it to be criminal, someone would have to be making copies for profit -- like running a bootleg DVD factory or something. Someone posting a 2 minute clip of your nonsense is not that.

Most important, however, this isn't even civil infringement, thanks to fair use. Putting up a 2 minute video showing a dozen or so clips of Drew making an ass of himself is not infringing. It's classic fair use -- especially given the topic at hand.

So it's really difficult to believe that Drew is really owning up to his mistakes when at the same time he says he's sorry, he's actively working to abuse the law to try to silence people from highlighting his previous comments. Also, someone should point him to Lenz v. Universal in which a court said that before sending a takedown, you need to take fair use into consideration. It certainly appears that Drew hasn't the foggiest idea how copyright law works, so it seems unlikely he considered fair use at all.

I certainly understand that he likely regrets his earlier comments. And I appreciate his willingness to admit that he was wrong. But to really take ownership of your previous errors, you shouldn't then be working doubletime to try to delete them from the internet and hide them from view. That's not taking ownership of your mistakes, that's trying to sweep them under the rug.

Filed Under: copyright, copyright as censorship, covid-19, drew pinsky, fair use, takedowns

World's Worst Copyright Trolling Lawyer, Richard Liebowitz, Files Lawsuit Against Ellen Barkin For Posting Photo Of Herself

from the giving-fair-use-the-finger dept

I'm still amazed that any photographer could think it's wise to hire notoriously bad copyright trolling lawyer Richard Liebowitz. Liebowitz, among many other problems, has been sanctioned for lying to the court, sanctioned for failing to comply with court orders, and even got into trouble for lying to a court about the death of his grandfather (in that one he actually had a friend of his father's write a letter to the court basically saying that the judge should excuse Richard's many lies, because he's just not that experienced). And even if you could look past all that, he's a dreadful copyright lawyer. Going back a few years we quoted a judge telling him "No reasonable lawyer with any familiarity with the law of copyright could have thought..." Just a few months ago, a court made it clear that Liebowitz's reputation comes with baggage:

This judge joins the chorus of those telling this attorney to clean up his act. The dockets of each of the cases assigned to me, wherein this attorney represents a plaintiff, are littered with deficiency notices. This is a harbinger for troubled litigation ahead.

Oh and that doesn't even get into how his awful copyright trolling has actually set some useful precedents against copyright trolling that may cost his clients quite a bit of money.

And yet, photographers still seem to hire Liebowitz, including freelance photographer Steven Hirsch, on whose behalf Liebowitz has filed a few lawsuits. The latest one is, in typical Liebowitz fashion, just really, really dumb. Hirsch, who frequently licenses his photographs to the NY Post, apparently annoyed actress Ellen Barkin as she was trying to get into Harvey Weinstein's NY rape trial, so she gave him the finger, which Hirsch captured and licensed to the NY Post's Page Six, which used it as a story to attack her as a "diva."

On January 23rd, Barkin tweeted a copy of that photo along with a single word: "Mood"

And that's what Hirsch, represented by Liebowitz, is suing over.

This action arises out of Defendant’s unauthorized reproduction and public display of a copyrighted photograph of actress and producer Ellen Barkin flipping the bird during the Harvey Weinstein trial, owned and registered by Hirsch, a New York based professional photographer. Accordingly, Hirsch seeks monetary relief under the Copyright Act of the United States

Beyond just the straight infringement claim, Liebowitz also tries a 1202(b) claim, saying that because she didn't show Hirsch's name with the photograph, that she has "intentionally and knowingly removed copyright management information identifying Plaintiff as the photographer of the Photograph." This is just a bad idea. Courts -- including ones in the 2nd Circuit -- have said for there to be a 1202 violation, plaintiff's need to show that defendants knowingly removed the copyright information and that they did so to conceal infringement. The complaint alleges that Barkin did this, but come on. Posting a photo of yourself to social media hardly shows any evidence that she removed Hirsh's name to try to hide who took the photo.

As for the main claim, this seems like a pretty easy fair use case -- though there do remain a bunch of open questions regarding the ability of famous people to repost pictures of themselves taken by paparazzi on social media. But this was someone posting an image of themselves on social media and it's easy to see how the 4 factor fair use test weighs heavily in Barkin's favor -- including the fact that this would have no real impact on the economic value of Hirsh's original photograph.

Of course, the other thing I wonder about: while I think it's a bad law, New York (where this photo was taken, published, and where this lawsuit was filed) happens to have a a right of publicity law (which it calls a "right of privacy"), which says you can't use a photograph of "any living person without having first obtained the written consent of such person," if the use of the photograph is "for the purposes of trade." Is a photograph in a news article "for purpose of trade"? I would think not, but I do wonder if Liebowitz has opened up Hirsch, at the very least, to a counterclaim that he violated NY's right of privacy law.

Either way, Liebowitz's long track record of getting things wrong is well known to judges, and I can't image they'll look kindly on his latest barrage of lawsuits. Also, photographers: there are plenty of good copyright lawyers out there who can tell you whether or not you have a legitimate case. Just because you find one willing to sue over anything, doesn't mean that's a good idea. Perhaps at least consider Liebowitz's track record of judicial sanctions and benchslaps.

Filed Under: copyright, ellen barkin, fair use, richard liebowitz, steven hirsch

Court Manages To Get NBA2K Tattoo Copyright, Trademark Case Exactly Right

from the he-shoots-he-scores dept

Somehow, it's been nearly four years since a tattoo company, Solid Oak Sketches, decided to sue 2K Sports, the studio behind the renowned NBA 2K franchise, claiming that the game's faithful representation of several stars' tattoos was copyright infringement. The company claimed to own the copyright on the design of several players' tattoos, including most famously LeBron James, Kobe Bryant, and DeAndre Jordan. The claim in the suit was that 2K's faithful depiction of the players, whom had collectively licensed their likenesses via the NBAPA, somehow violated Solid Oak's IP rights.

Put another way, it could be said that by branding the player with Solid Oak's designs, the company seems to think it can control the players' ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.

Well, while 2K Sports failed to get the court to dismiss the case back in 2018, it has more recently won the case on summary judgement, with the court quite helpfully getting everything right and declaring the depiction of tattoos in video games in this manner to be Fair Use.

The defendants have sought to dismiss the plaintiff’s complaint because “Plaintiff cannot prove its claim because Defendants’ use of the Tattoos is de minimis and Plaintiff is this unable to prove the key substantial similarity element of its cause of action.” They state their use of the tattoos and images “was pursuant to implied authorization granted prior to Plaintiff’s acquisition of any rights in the Tattoos.”

The court has granted the summary judgment dismissing the infringement claim because “no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak.” Additionally, the tattoos “only appear on the players upon whom they are inked, which is just three out of over 400 players.” Therefore, the odds are against one of those Players with their tattoos being selected. Additionally, because Defendants had a license for the game, they had implied license for the tattoos as part of the players’ likeness and the Players allowed Defendants to use their likeness.

The full filing, embedded below, goes into far more detail. And, frankly, it's quite nice to see a court get this so right. It's clear the court in this case took care and time to go through the material brought by both parties and carefully weigh the claims against Fair Use. Given such careful examination, the conclusions were fairly obvious. In addition to the rationale above, the court notes that the tattoo artists in this case, despite claiming copyright infringement for the de minimis reproduction of tattoos in the game, couldn't even reproduce them themselves given the likeness rights of the players.

Solid Oak has neither licensed the Tattoo designs nor sold merchandise depicting the Tattoos. (Def. 56.1 ¶¶ 107-08.) Solid Oak’s owner, Matthew Siegler, testified that he would “need permission from the players . . . to not infringe on their right of publicity,” in order to move forward with a business selling “dry wick apparel” bearing the Players’ tattoos. (Cendali Decl., Ex. A at 389.) Solid Oak does not have a license to use the Players’ publicity or trademark rights. (Def 56.1 ¶ 102.) Solid Oak has not proffered any evidence indicating that it has a prospect of obtaining such rights.

And so ends one of the most annoying video game IP lawsuits of all time. The shame of it, really, is that it took the system four years to reach the only logical conclusion: someone getting a tattoo doesn't somehow destroy their ability to profit off of their own likeness.

Filed Under: basketball, copyright, deandre jordan, fair use, kobe bryant, lebron james, nba 2k, tattoos, video games
Companies: 2k sports, solid oak sketches

Copyright Is Broken: COVID-19 Pandemic Revealing Just How Messed Up Our Permission-Based Culture Is

from the let's-fix-it dept

Like large parts of the world right now, I'm stuck at home these days, and figuring out how to work and be a distance learning proctor to children. A week and a half into this forced educational experiment, my kid's kindergarten teacher decided to post a (private) video of her reading a children's book to the students. Why did it take so long before reading time arrived to distance learning? Copyright, of course. She needed to wait for permission from Random House, apparently, and that also meant that in posting the video to the distance learning platform the school is using, she noted in both text, and prior to reading, "with permission from Random House."

Now let's think about how silly this is. No one would ever expect that if you walked into a kindergarten classroom that a teacher would first need to (a) get permission to read aloud a book and (b) state before reading that he or she had "permission" from the copyright holder. This is permission culture gone mad. But it's the way things are, especially since copyright holders have spent the past two decades blaming platforms for hosting any "infringing" material. I doubt that the teacher in this case was directly concerned about her own liability (though, she might be), but it very likely had to do with the distance learning platform the school is using requiring her "properly license" anything uploaded. Indeed, when I tweeted about this, a copyright lawyer insisted that this was "better for everyone" to make sure that no one had liability. I question how it's better for teachers, students, or culture in general, however.

This is playing out all over the place, thanks to our forced isolation. LeVar Burton tweeted about the trouble he's had doing a live-streamed version of LeVar Burton Reads, because copyright is getting in the way. He's been searching through "short stories in the public domain" because the actual licensing issues are too fucked up:

While it is a bit heartening to see a lot of authors responding to him and offering up "free" licenses to their own books for him to read, just the fact that we're in this situation in the first place should demonstrate the fundamental broken nature of copyright law. A few people pointed me to certain "solutions" to this -- including a special Pandemic License and a more official Education Continuity License -- both of which have been designed to specifically deal with this situation. But both of those are still based on the fundamentally flawed idea that we should need licenses and permission to read aloud.

That's messed up.

This is what fair use is supposed to protect -- and I'm happy to see a bunch of top copyright scholars just release this excellent paper on "Reading Aloud" and fair use. The paper is exactly right that things done without extra licenses and permission in the classroom should be easily replicated online:

1. When teachers translate classroom practices of reading aloud to online student facing tools, such as distribution through a school website, learning management system, or live webcast, fair use enables most of the same practices online that take place in person.
2. In a temporary emergency involving extensive school closures, teachers and schools should feel even greater confidence in reading aloud through digital platforms, including platforms without access controls, if necessary to reliably reach students.
3. Fair use also provides strong legal authority for practices focused on ensuring equity of access for students with disabilities, English language learners, and other vulnerable student populations. Consistent with the principles of universal design, the ability to engage with materials read aloud should be enabled as widely as possible.

The paper is absolutely right. But it's meaningless if no one buys into it and no one has the confidence to stand up for their fair use rights -- and that includes the platform middlemen who are so freaked out about liability suits that they won't even bother with fair use.

When we get through this pandemic, we should remember this mess, and fix a bunch of problems with copyright law to make sure we don't need to do this again. We should make it 100% clear that classroom uses are fair use. This is currently in the law -- but frequently ignored. We should similarly take away monetary damages for such activities. The fear of a big expensive lawsuit is part of what's so damaging and chilling here. At best you should be able to get an injunction, requiring someone to stop the behavior. Finally, it should be explicitly stated that merely doing what you do in the classroom online cannot ever be infringing, and that anyone who files suit over such things should have to pay the legal fees of those educators and educational platforms they have sued.

Filed Under: copyright, culture, distance learning, fair use, licenses, reading aloud, teachers