Sci-Hub's Creator Thinks Academic Publishers, Not Her Site, Are The Real Threat To Science, And Says: 'Any Law Against Knowledge Is Fundamentally Unjust'

from the put-up-or-shut-up dept

A year ago, Techdirt wrote about an important lawsuit in India, brought by the academic publishers Elsevier, Wiley, and the American Chemical Society against Sci-Hub and the similar Libgen. A couple of factors make this particular legal action different from previous attempts to shut down these sites. First, an Indian court ruled in 2016 that photocopying textbooks for educational purposes is fair use; the parallels with SciHub, which provides free access to copies of academic papers for students and researchers who might not otherwise be able to afford the high subscription fees, are clear. Secondly, the person behind Sci-Hub, Alexandra Elbakyan, is fighting, rather than ignoring, the case, as she has done on previous occasions.

One manifestation of her new pro-active approach is a tweet she posted recently. It included a screenshot of an email she wrote to Nature magazine, which had contacted her about a forthcoming article on the Indian court case. Following standard practice, the journalist writing the article, Holly Else, asked Elbakyan to comment on some of the accusations the academic publishers had made against Sci-Hub. Her responses are fascinating, not least because they provide Elbakyan's perspective on several important issues.

For example, according to the publishers' comments as transmitted by Else, "Pirate sites like Sci-Hub threaten the integrity of the scientific record, and the safety of university and personal data". In reply, Elbakyan points out Sci-Hub is unique, and the use of the phrase "Pirate sites like Sci-Hub" is a clever attempt to lump Sci-Hub in with quite different sites, thus prejudging the legality of its activities. Elbakyan says that it's academic publishers -- not Sci-Hub -- which threaten the progress of science:

open communication is [a] fundamental property of science and it makes scientific progress possible. Paywalled access prevents this and is a great threat to science. Also the great threat is also when the whole scientific knowledge became the private property of some corporation such as Elsevier, that has full control of it. That is the threat, not Sci-Hub.

Elbakyan points out that Sci-Hub doesn't threaten the "integrity of the scientific record", since she simply disseminates copies of the academic papers without changing them in any way. But perhaps the most interesting part of her reply concerns the accusation that Sci-Hub threatens the safety of university and personal data. Techdirt has written previously about claims that Elbakyan allegedly has links to Russian intelligence, and that Sci-Hub is some kind of security risk. According to Else, the publishers assert:

Pirate sites like Sci-Hub compromise the security of libraries and higher education institutions to gain unauthorized access to scientific databases and other proprietary intellectual property, and illegally harvest journal articles and e-books.

Sci-Hub uses stolen user credentials and phishing attack to extract copyrighted articles illegally

These are serious allegations, and ones that have been made several times in the past. Elbakyan's response is probably the first time that she has addressed them directly:

Do they have any actual case when Sci-Hub somehow compromised the security of any library or a person? Any person that complained about credentials that were 'stolen' from them? Or is it again, nothing more than empty accusations. Nobody is complaining about 'compromised security' except academic publishers.

In other words, it is time for Elbakyan's accusers to put up or shut up. She concludes by stating that "Any law against knowledge is fundamentally unjust", and hopes that "Nature will have enough honesty to publish my comments in full.

It didn't, of course.

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Filed Under: academic journals, academic research, alexandra elbakyan, copyright, education, holly else, india, publishers, security
Companies: nature, sci-hub

Publishers Want To Make Ebooks More Expensive And Harder To Lend For Libraries; Ron Wyden And Anna Eshoo Have Questions

from the end-of-ownership dept

Techdirt has noted in the past that if public libraries didn't exist, the copyright industry would never allow them to be created. Publishers can't go back in time to change history (fortunately). But the COVID pandemic, which largely stopped people borrowing physical books, presented publishers with a huge opportunity to make the lending of newly-popular ebooks by libraries as hard as possible.

A UK campaign to fight that development in the world of academic publishing, called #ebookSOS, spells out the problems. Ebooks are frequently unavailable to institutions to license as ebooks. When they are on offer, they can be ten or more times the cost of the same paper book. The #ebookSOS campaign has put together a spreadsheet listing dozens of named examples. One title cost £29.99 as a physical book, and £1,306.32 for a single-user ebook license. As if those prices weren't high enough, it's common for publishers to raise the cost with no warning, and to withdraw ebook licenses already purchased. One of the worst aspects is the following:

Publishers are increasingly offering titles via an etextbook model, via third party companies, licensing content for use by specific, very restricted, cohorts of students on an annual basis. Quotes for these are usually hundreds, or sometimes thousands, times more than a print title, and this must be paid each year for new cohorts of students to gain access. This is exclusionary, restricts interdisciplinary research, and is unsustainable.

Although #ebookSOS is a UK campaign, the problem is global, as publishers try to change the nature of ebook lending everywhere. Ron Wyden and Anna Eshoo have noticed that it's happening in the US, and seem unimpressed by the publishing industry's moves, as a letter to the CEO of Penguin Random House (pdf) makes clear:

Many libraries face financial and practical challenges in making e-books available to their patrons, which jeopardizes their ability to fulfill their mission. It is our understanding that these difficulties arise because e-books are typically offered under more expensive and limited licensing agreements, unlike print books that libraries can typically purchase, own, and lend on their own terms. These licensing agreements, with terms set by individual publishers, often include restrictions on lending, transfer, and reproduction, which may conflict with libraries' ability to loan books, as well as with copyright exceptions and limitations. Under these arrangements, libraries are forced to rent books through very restrictive agreements that look like leases.

The letter asks for answers to nine detailed questions about any restrictions imposed on ebook use, the pricing of both physical and digital books, as well as information about any legal actions that have been taken in response to things like multiple checkouts of digital texts, interlibrary loans, controlled digital lending, and institutions making digital copies of physical books they own.

This is a hugely important battle, since it's clear the publishing world sees it as a unique chance to redefine what libraries can do with ebooks. It's part of the much larger, very troubling trend to turn everyone into renters, and to bring about the end of ownership.

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Filed Under: anna eshoo, ebooks, libraries, publishers, ron wyden

Music Publishers Sue Roblox In Full Frontal Assault On The DMCA

from the here's-a-big-one dept

A huge and potentially important copyright lawsuit was filed this week by basically all of the big music publishers against the immensely popular kids' gaming platform Roblox. Although the publishers trade association, the NMPA, put out a press release claiming the lawsuit, it doesn't appear that NMPA is actually a party. The lawsuit is, in many ways, yet another full frontal assault on the DMCA's safe harbors by the legacy music industry. There's a lot in this lawsuit and no single article is going to cover it all, but we'll hit on a few high points.

First, this may seem like a minor point, but I do wonder if it will become important: buried in the massive filing, the publishers mention that Roblox did not have a registered DMCA agent. That seems absolutely shocking, and potentially an astoundingly stupid oversight by Roblox. And there's at least some evidence that it's true. Looking now, Roblox does have a registration, but it looks like it was made on... June 9, the day the lawsuit was filed.

Wow. Now, that may seem embarrassing, but it might actually be more embarrassing for the Copyright Office and raise a significant and important legal question. Because it appears that Roblox did at one time have a DMCA agent registration but, as you may recall, back in 2016, the Copyright Office unilaterally decided to throw out all of those registrations and force everyone to renew (and then to renew again every three years through a convoluted and broken process).

There's an argument to be made that the Copyright Office can't actually do this. The law itself just says you need to provide the Copyright Office with the information, not that it needs to be renewed. The Copyright Office just made up that part. Perhaps we finally have a test case on our hands to see whether or not the Copyright Office fucked up in dumping everyone's registration.

Still, that's a minor point in the larger lawsuit. The publishers throw a lot of theories against the wall, hoping some will stick. It seems like most should be rejected under the DMCA's safe harbors, because it truly is user generated content, even if the lawsuit tries a variety of approaches to get around that. Part of the lawsuit argues contributory and vicarious copyright infringement, more or less pulling the "inducement" theory from the Grokster ruling, which basically says that if you as a company encourage your users to infringe, you could still be liable (this is, notably, nowhere in the actual law -- it's just what the Supreme Court decided).

But to get there, the lawyers for the music publishers seem to want to take a Roblox executive's comments completely out of context, in a somewhat astounding manner. The "proof" that Roblox is encouraging people to infringe is here:

Roblox is well aware that its platform is built and thrives on the availability of copyrighted music. As Jon Vlassopulos, Roblox’s global head of music, publicly stated just last year: “We want developers to have great music to build games. We want the music to be, not production music, but really great [commercial] music.” (Alteration in original). To that end, Roblox actively encourages its users to upload audio files containing copyrighted music and incorporate them into game content on the Roblox platform. Roblox advertises the importance of music in games and makes it easy for users to upload, share, and stream full-length songs.

But... if you read the article that they're using for that Vlassopulos quote, it's not directed at developers and users of their platform. It's targeted at musicians and the music industry. The whole point of the quote is to let musicians and the industry know that Roblox is open to licensing deals. It's pretty obnoxious to try to spin that as encouraging people to infringe when, in context, it sure looks like the exact opposite. I mean, literally the next sentence (which doesn't make it into the lawsuit) is about how they're "testing the waters" by making a deal with a small indie label to make all of its music available on Roblox.

So it seems to be Roblox saying the exact opposite of what the publishers are claiming. That's... kinda fucked up.

The lawsuit also tries to spin the impossible task of trying to moderate as proof that any failures in moderation are deliberate.

There is no question that Roblox has the right and ability to stop or limit the infringement on its platform. But Roblox refuses to do so, so that it can continue to reap huge profits from the availability of unlicensed music. While Roblox touts itself as a platform for “user-generated” content, in reality, it is Roblox—not users—that consciously selects what content appears on its platform. Roblox is highly selective about what content it publishes, employing over a thousand human moderators to extensively pre-screen and review each and every audio file uploaded. Roblox’s intimate review process includes review of every piece of copyrighted music, generally identified by title and artist—to ensure that it meets Roblox’s stringent and detailed content guidelines and community rules. This process ensures that Roblox plays an integral role in monitoring and regulating the online behavior of its young users.

Roblox thus unquestionably exercises substantial influence over its users and the content on its platform, ostensibly in the name of “safety.” Yet Roblox allows a prodigious level of infringing material through its gates, purposely turning a blind eye for the sake of profits. Rather than take responsibility, Roblox absurdly attempts to pass the obligation to its users—many of whom are young children—to represent to Roblox that they own the copyrights to the works they have uploaded.

Coincidentally, just last week we published our content moderation case study on Roblox, focused on how it tries to stop "adult" content on the platform. We noted that the company is very aggressive and hands-on with its moderation efforts but (importantly) it still makes mistakes, because every content moderation system at scale will make mistakes.

So just because Roblox is aggressive in its moderation, and even if it says it reviews everything, that doesn't mean that it "refuses" to stop infringement. It just means it doesn't catch it all. Indeed, the company has said in the past that it uses an automated third party monitoring tool to try to catch unauthorized songs (though, notably, this lawsuit is about the publishing rights, not the recording rights, so arguably a monitoring tool might catch some sound recordings while missing other songs that implicate songwriters/publishers -- but that's getting super deep in the weeds).

Indeed, the impossibility of catching everything -- while still encouraging websites to try -- is why we want things like Section 512 of the DMCA or Section 230 of the CDA. If you suddenly make websites liable for any mistakes they let through, then you create a huge problem. And claiming that their aggressive moderation implicates them even more only encourages sites to do less moderation in the long run.

But, the publishers don't care about that. Their end goal is clear: as in the EU, they want to force every website to have to buy a blanket license for music. They basically want to do away with the DMCA altogether, then just sit back and collect payments. They want to change the internet almost entirely from a tool for end users to a cash register for music publishers.

There are some other oddities in the lawsuit. It repeatedly tries to claim that Roblox is liable for direct infringement itself, but that theory seems like a stretch. Even the filings admit that the music is all uploaded by users:

Despite Roblox’s written policies, users regularly upload files containing copyrighted music. The act of “uploading” a file to Roblox involves the user making a copy of the file and distributing it to Roblox, where it is then hosted on Roblox’s servers.

To upload an audio file, a user simply opens the Roblox Studio and clicks on a tab marked “Audio,” which then prompts the user to choose a file on their local hard drive, in either .mp3 or .ogg format to be copied and distributed to Roblox’s servers.

It tries to build out the inducement theory by saying that because Roblox encourages developers to use music in their games, and this is the same as encouraging infringement, but that's nonsense. Nothing in what Roblox says encourages infringement. They're just saying that sound and music can enhance a game. Which is clearly true.

Roblox makes the process of uploading infringing music extremely easy for users. Roblox even published an article designed to encourage developers to add music to their games, which explains: “While building a game, it’s easy to overlook the importance of sounds and music.” (Emphasis added).4 That page gives users step-by-step instructions on how to copy and distribute their music files to the Roblox platform.

So what? That's not telling users to infringe. If anything, it's saying "find some music you're able to add to this legally." You'd think that publishers would be happy about that, as it opens up a new line of business where they could license their music, which is what the Roblox exec was talking about at the beginning. But leave it to the greedy publishers to not want to do the hard work here, and instead try to force a big company into a big payment.

Roblox has already put out a statement saying (not surprisingly) that it's "surprised and disappointed" by the lawsuit. It seems likely that it will mount an aggressive defense, and it could be yet another important case in seeing whether or not the legacy music industry is able to chip away at another important aspect of the DMCA, and to force all websites that host third party content to buy blanket licenses.

“As a platform powered by a community of creators, we are passionate about protecting intellectual property rights – from independent artists and songwriters, to music labels and publishers – and require all Roblox community members to abide by our Community Rules,” said the statement.

“We do not tolerate copyright infringement, which is why we use industry-leading, advanced filtering technology to detect and prohibit unauthorised recordings. We expeditiously respond to any valid Digital Millennium Copyright Act (DMCA) request by removing any infringing content and, in accordance with our stringent repeat infringer policy, taking action against anyone violating our rules.”

“We are surprised and disappointed by this lawsuit which represents a fundamental misunderstanding of how the Roblox platform operates, and will defend Roblox vigorously as we work to achieve a fair resolution,” continued Roblox’s statement.

Of course, this is par for the course for the legacy industry -- especially the publishers as lead by the NMPA's David Israelite. They wait for various internet services to get popular, and then rather than figuring out how that helps them, they sue. It's how they constantly kill the golden goose. They've done it with various internet music services, music games, and more. They're currently trying to do it with Twitch and now Roblox as well. They overvalue the music component, and choke off the long term business prospects for these platforms, many of which have music as an ancillary add-on.

It's silly, short-sighted, and anti-culture. In other words, it's the legacy music industry's usual playbook.

Filed Under: copyright, copyright office, dmca, dmca agent, inducement, publishers, registration, safe harbors
Companies: nmpa, roblox

City Of London Police Parrot Academic Publishers' Line That People Visiting Sci-Hub Should Be Afraid, Very Afraid

from the just-a-coincidence? dept

Techdirt has been following the saga of the City of London Police's special "Intellectual Property Crime Unit" (PIPCU) since it was formed back in 2013. It has not been an uplifting story. PIPCU seems to regard itself as Hollywood's private police force worldwide, trying to stop copyright infringement online, but without much understanding of how the Internet works, or even regard for the law, as a post back in 2014 detailed. PIPCU rather dropped off the radar, until last week, when its dire warnings about a new, deadly threat to the wondrous world of copyright were picked up by a number of gullible journalists. PIPCU's breathless press release reveals the shocking truth: innocent young minds are being encouraged to access knowledge, funded by the public, as widely as possible. Yes, PIPCU has discovered Sci-Hub:

Sci-Hub obtains the papers through a variety of malicious means, such as the use of phishing emails to trick university staff and students into divulging their login credentials. Sci Hub then use this to compromise the university's network and download the research papers.

That repeats an unsubstantiated claim about Sci-Hub that has frequently been made by academic publishers. And simply using somebody's login credentials does not constitute "compromising" the university's network, since at most it gives access to course details and academic papers: believe it or not, students are not generally given unrestricted access to university financial or personnel systems. The press release goes on:

Visitors to the site are very vulnerable to having their credentials stolen, which once obtained, are used by Sci-Hub to access further academic journals for free, and continue to pose a threat to intellectual property rights.

This is complete nonsense. It was obviously written by someone who has never accessed Sci-Hub, since there is no attempt anywhere to ask visitors for any information about anything. The site simply offers friction-free access to 85 million academic papers -- and not "70 million" papers as the press release claims, further proof the author never even looked at the site. Even more ridiculous is the following:

With more students now studying from home and having more online lectures, it is vital universities prevent students accessing the stolen information on the university network. This will not only prevent the universities from having their own credentials stolen, but also those of their students, and potentially the credentials of other members of the households, if connected to the same internet provider.

When students are studying from home, they won't be using the university network if they access Sci-Hub, but their own Internet connection. And again, even if they do visit, they won't have their credentials "stolen", because that's not how the site works. And the idea that members of the same household could also have their "credentials" stolen simply by virtue of being connected to the same Internet provider is so wrong you have to wonder whether the person writing it even knows how the modern (encrypted) Internet works.

But beyond the sheer wrongness of the claims being made here, there's another, more interesting aspect. Techdirt readers may recall a post from a few months back that analyzed how publishers in the form of the Scholarly Networks Security Initiative were trying to claim that using Sci-Hub was a terrible security risk -- rather as PIPCU is now doing, and employing much of the same groundless scare-mongering. It's almost as if PIPCU, always happy to toe Big Copyright's line, has uncritically taken a few talking points from the Scholarly Networks Security Initiative and repackaged in them in the current sensationalist press release. It would be great to know whether PIPCU and the Scholarly Networks Security Initiative have been talking about Sci-Hub recently. So I've submitted a Freedom of Information request to find out.

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Filed Under: academic papers, academic publishers, city of london police, copyright, fud, pipcu, publishers, scholarly networks security initiative
Companies: sci-hub

Elsevier Wants To Stop Indian Medics, Students And Academics Accessing Knowledge The Only Way Most Of Them Can Afford: Via Sci-Hub And Libgen

from the copyright-is-not-an-inevitable,-divine,-or-natural-right dept

Last month Techdirt wrote about some ridiculous scaremongering from Elsevier against Sci-Hub, which the publisher claimed was a "security risk". Sci-Hub, with its 85 million academic papers, is an example of what are sometimes termed "shadow libraries". For many people around the world, especially in developing countries, such shadow libraries are very often the only way medics, students and academics can access journals whose elevated Western-level subscription prices are simply unaffordable for them. That fact makes a new attack by Elsevier, Wiley and the American Chemical Society against Sci-Hub and the similar Libgen shadow library particularly troubling. The Indian title The Wire has the details:

the publishing giants are demanding that Sci-Hub and Libgen be completely blocked in India through a so-called dynamic injunction. The publishers claim that they own exclusive rights to the manuscripts they have published, and that Sci-Hub and Libgen are engaged in violating various exclusive rights conferred on them under copyright law by providing free access to their copyrighted contents.

Techdirt readers will note the outrageous claim there: that these publishers "own exclusive rights to the manuscripts they have published". That's only true in the sense that most publishers force academics to hand over the copyright as a condition of being published. The publishers don't pay for that copyright, and contribute almost nothing to the final published paper save a little editing and formatting: manuscript review is carried out for free by other academics. And yet the publishers are demanding that Sci-Hub and Libgen should be blocked in India on this basis. Moreover, they want a "dynamic injunction":

That is, once a defendant's website is categorised as a "rogue website", the plaintiff won't have to go back to the judges to have any new domains blocked for sharing the same materials, and can simply get the injunction order extended with a request to the court's deputy registrar.

The legal action by publishers against shadow libraries is part of a broader offensive around the world, but there's a reason why they may face extra challenges in India -- over and above the fact that Sci-Hub and Libgen contain huge quantities of material that can unambiguously be shared quite legally. As Techdirt reported back in 2013, a group of Western publishers sued Delhi University over photocopied versions of academic textbooks. For many students in India, this was the only way they could afford such educational materials. In 2016, the Indian court ruled that "copyright is not an inevitable, divine, or natural right", and that photocopying textbooks is fair use.

The parallels with the new suit against Sci-Hub and Libgen are clear. The latter are digital photocopy sites: they make available copies of educational material to students and researchers who could not otherwise afford access to this knowledge. The copies made by Sci-Hub and Libgen should be seen for what they are: fair use of material that was in any case largely created using public funds for the betterment of humanity, not to boost the bottom line of publishers with profit margins of 35-40%.

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Filed Under: academic publishing, academic research, access to knowledge, censorship, copyright, dynamic injunction, india, injunctions, publishers
Companies: american chemical society, elsevier, libgen, sci-hub, wiley

To Prevent Free, Frictionless Access To Human Knowledge, Publishers Want Librarians To Be Afraid, Very Afraid

from the because-security dept

After many years of fierce resistance to open access, academic publishers have largely embraced -- and extended -- the idea, ensuring that their 35-40% profit margins live on. In the light of this subversion of the original hopes for open access, people have come up with other ways to provide free and frictionless access to knowledge -- most of which is paid for by taxpayers around the world. One is preprints, which are increasingly used by researchers to disseminate their results widely, without needing to worry about payment or gatekeepers. The other is through sites that have taken it upon themselves to offer immediate access to large numbers of academic papers -- so-called "shadow libraries". The most famous of these sites is Sci-Hub, created by Alexandra Elbakyan. At the time of writing, Sci-Hub claims to hold 79 85 million papers.

Even academics with access to publications through their institutional subscriptions often prefer to use Sci-Hub, because it is so much simpler and quicker. In this respect, Sci-Hub stands as a constant reproach to academic publishers, emphasizing that their products aren't very good in terms of serving libraries, which are paying expensive subscriptions for access. Not surprisingly, then, Sci-Hub has become Enemy No. 1 for academic publishers in general, and the leading company Elsevier in particular. The German site Netzpolitik has spotted the latest approach being taken by publishers to tackle this inconvenient and hugely successful rival, and other shadow libraries. At its heart lies the Scholarly Networks Security Initiative (SNSI), which was founded by Elsevier and other large publishers earlier this year. Netzpolitik explains that the idea is to track and analyze every access to libraries, because "security":

Elsevier is campaigning for libraries to be upgraded with security technology. In a SNSI webinar entitled "Cybersecurity Landscape -- Protecting the Scholarly Infrastructure", hosted by two high-ranking Elsevier managers, one speaker recommended that publishers develop their own proxy or a proxy plug-in for libraries to access more (usage) data ("develop or subsidize a low cost proxy or a plug-in to existing proxies").

With the help of an "analysis engine", not only could the location of access be better narrowed down, but biometric data (e.g. typing speed) or conspicuous usage patterns (e.g. a pharmacy student suddenly interested in astrophysics) could also be recorded. Any doubts that this software could also be used -- if not primarily -- against shadow libraries were dispelled by the next speaker. An ex-FBI analyst and IT security consultant spoke about the security risks associated with the use of Sci-Hub.

Since academic publishers can't compete against Sci-Hub on ease of use or convenience, they are trying the old "security risk" angle -- also used by traditional software companies against open source in the early days. Yes, they say, Sci-Hub/open source may seem free and better, but think of the terrible security risks… An FAQ on the main SNSI site provides an "explanation" of why Sci-Hub is supposedly a security risk:

Sci-Hub may fall into the category of state-sponsored actors. It hosts stolen research papers which have been harvested from publisher platforms often using stolen user credentials. According to the Washington Post, the US Justice Department is currently investigating the founder of Sci-Hub, Alexandra Elbakayan, for links between her and Russian Intelligence. If there is substance to this investigation, then using Sci-Hub to access research papers could have much wider ramifications than just getting access to content that sits behind a paywall.

As Techdirt pointed out when that Washington Post article came out, there is no evidence of any connections between Elbakyan and Russian Intelligence. Indeed, it's hard not to see the investigation as simply the result of whining academic publishers making the same baseless accusation, and demanding that something be "done". An article in Research Information provides more details about what those "wider ramifications than just getting access to content that sits behind a paywall" might be:

In the specific case of Sci-Hub, academic content (journal articles and books) is illegally harvested using a variety of methods, such as abusing legitimate log in credentials to access the secure computer networks of major universities and by hijacking "proxy" credentials of legitimate users that facilitate off campus remote access to university computer systems and databases. These actions result in a front door being opened up into universities' networks through which Sci-Hub, and potentially others, can gain access to other valuable institutional databases such as personnel and medical records, patent information, and grant details.

But that's not how things work in this context. The credentials of legitimate users that Sci-Hub draws on -- often gladly "lent" by academics who believe papers should be made widely available -- are purely to access articles held on the system. They do not provide access to "other valuable institutional databases" -- and certainly not sensitive information such as "personnel and medical records" -- unless they are designed by complete idiots. That is pure scaremongering, while this further claim is just ridiculous:

Such activities threaten the scholarly communications ecosystem and the integrity of the academic record. Sci-Hub has no incentive to ensure the accuracy of the research articles being accessed, no incentive to ensure research meets ethical standards, and no incentive to retract or correct if issues arise.

Sci-Hub simply provides free, frictionless access for everyone to existing articles from academic publishers. The articles are still as accurate and ethical as they were when they first appeared. To accuse Sci-Hub of "threatening" the scholarly communications ecosystem by providing universal access is absurd. It's also revealing of the traditional publishers' attitude to the uncontrolled dissemination of publicly-funded human knowledge, which is what they really fear and are attacking with the new SNSI campaign.

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Filed Under: academic research, libraries, open access, publishers, security
Companies: elsevier, sci-hub

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

Publisher Decries Damn Libraries Entertaining The Masses Stuck At Home For Free

from the oh-come-on dept

For years and years we've pointed out that, if they were invented today, copyright maximalist authors and publishers would absolutely scream about libraries and probably sue them out of existence. Some insisted that we were exaggerating, but now we've seen nearly all of the big publishers sue the Internet Archive over its digital library that acts just like a regular library.

But, perhaps the most frustrating part in all of this, is that whenever these copyright maximalist authors and publishers are confronted about this, they twist themselves into knots to say "well, I actually love libraries, but..." before beginning a bunch of arguments that show they do not, in fact, like libraries. Sometimes, however rarely, a maximalist just comes out and admits the facts: they fucking hate libraries.

The latest example of this is Kenneth Whyte, a small publisher of Sutherland House Books in Canada, who seemed to think now was the time to take to the pages of The Globe & Mail to whine about libraries competing with book stores that sell books. Of all the things to be bothered with right now. Even the setup of this column is just ridiculous, arguing that libraries -- with their public taxpayer funded support -- are unfair competitors to booksellers:

Public libraries, too, were affected by the lockdown, with various systems across North America furloughing staff. But libraries operate largely with public funding, which has been disrupted far less than commercial revenues their competitors rely upon. As a result, libraries are likely to gain still more market share at the expense of booksellers in the months and years ahead.

It may seem strange to think of booksellers and libraries as competitors. Most booksellers I know don’t. Ask them to name their competition and they’ll point to Amazon and Indigo, not the public library. There’s a logic to that: They’re booksellers, and libraries don’t sell books.

That, however, is a fatally narrow lens through which to view the book marketplace. Booksellers are in competition with libraries whether they want to admit it or not. Just ask the libraries.

As someone who frequents the library (and was thrilled when our local library finally introduced curbside pickup after months of pandemic closure) but also owns way too many books (and literally has been talking about renovating a large closet in a bedroom to turn it into more bookshelves), it's silly to argue that the two compete. I end up buying books all the time that I first found at the library. And libraries serve a public service for people who cannot or would not ever buy those books, but for whom having access to those books might be incredibly useful.

This is why we have libraries. But to Whyte, it's all very unfair. He seems particularly upset that some libraries have advertised the fact that you can borrow books for free as a cheeky way to get people to pay more attention to their local library:

Last November, the Toronto Public Library (TPL) ran this advertisement: “Black Friday Special: 100% Off All Books! Print! Digital! Audio!”

“Don’t miss the deals,” it said, “every day at the TPL.”

It was clever. It was hilarious. Except, perhaps, to people who make a living selling books.

The thing is, libraries have always lent books for free, and the fact that they "compete" with booksellers has never changed the fact that people buy a ton of books. Whyte then goes on to use a calculator set up by the American Library Association to show how much value libraries create each year, and basically uses that to argue that the value of libraries is effectively losses to booksellers. This kind of "we copyright holders must capture all the value" zero sum thinking is ridiculous at the best of times, but is particularly pernicious here. The nature of value creation is that it's not a zero sum game. Borrowing books from libraries helps to educate people, enables them to do things that, in turn, may help the world in lots of other ways. Some of that may lead to more books sold. Some of that may lead to just society being a better place.

It goes on and on like this for a while, with consistently dubious math about just how much libraries are supposedly stealing from those poor, poor publishers. Of course, towards the end, he includes one of those lame "we love libraries" claims after many paragraphs complaining about libraries:

Writers are loath to draw a line between the fact that they’re poor and the fact that four out of five of their patrons get their books at no charge. Most of us grew up in libraries. We love libraries. Our first library card was as important to us as our first driver’s licence. We do our research in libraries and meet our audiences in libraries. We think libraries are important civic institutions. It is difficult to conceive of them as problematic, so we ignore inconvenient facts to shield libraries from embarrassment.

But then he immediately doubles down on the ridiculous claim that libraries are the problem. Oh sure, he admits, there may be other factors (all of which are dubious, by the way) but the real issue: free books at libraries!

Of course, libraries are not the only reason author incomes are low. There are more authors and more books than ever. Especially in the fiction world, a flood of low-priced, self-published digital offerings has hurt prices for some established, traditionally published authors. Looser copyright laws have hurt sales to educational markets. But these factors pale in comparison to the simple fact that four out of five books are read at no charge.

As for the claim that libraries lead people to buy books -- he doesn't care:

Librarians defend their activities by claiming that they introduce readers to new authors and that surveys show people who borrow books sometimes also buy books. That is all true, but it doesn’t alter the fact that four out of five books are read at no charge.

Even if this is true (and it's not), that doesn't mean those 4 other books would have been purchased absent the existence of libraries. So he's willing to grant that... but only just a little bit -- saying that even if 25% of books represented "lost sales" that would be too much.

Librarians claim that a borrowed book is not a lost sale. That would be easier to accept if they weren’t claiming a one-to-one relationship between borrowings and savings in their advertisements. But say only one in four borrowings replaces a sale. Gaining that sale would be sufficient to double the income of our starving authors.

On what does he base that 25% number? No idea. But it's almost certainly not accurate.

Then he hits back at the idea that people improve their lot in life by having access to a library. Why? Because popular entertainment (gasp!) is available at the library. And apparently that's bad.

The dirty secret of public libraries is that their stock-in-trade is neither education nor edification. It’s entertainment. The top three reasons people patronize libraries, according to a massive Booknet survey, are to “relax,” for “enjoyment” and “for entertainment.” That is why the TPL system has 90 copies of Fifty Shades of Grey and six copies of Stendhal’s The Red and the Black.

These entertainment readers are not a benighted underclass for whom Tom Clancy is a stepping stone to literacy and employment. They are people who can afford books: disproportionately middle-class, upper middle-class and well-educated.

Pushing bestsellers in competition with book retailers, to the detriment of publishers and authors, has become an addiction for librarians who, again, rely on steady or growing patronage statistics to justify their funding requests.

It has to stop.

No. It doesn't. Because that's why libraries exist. There are all sorts of reasons why people go to the libraries -- some people get recent books. Plenty of people get other works that they otherwise would never have access to. My own kids now like reading because every week we'd try out new books from the library to find what kinds of books they like -- including (gasp!) some "entertainment" books. Should we have had to waste money on lots of books they'd never read until we found the ones they liked?

But, Kenneth Whyte, thanks for making the truth clear: copyright maximalists have always hated libraries. It's just rare to get one to outright admit it like Mr. Whyte has here.

Whyte concludes with suggestions on how to "fix" the "problem" he concocted himself. He thinks that people should have to pay a subscription fee to borrow books from the library. He also thinks that libraries should pay a lot more for books. Or maybe libraries should just give authors money. He suggests if none of those are okay, then publishers should stop offering their books to libraries (apparently unaware that fair use rights mean they can just go buy the books elsewhere). Of course, this is why we've been concerned that publishers have already been trying to jack up the prices on ebook lending for libraries, while limiting how many ebook licenses they can purchase.

The whole article is quite incredible, but at least it's a copyright maximalist admitting to what many are thinking: they hate libraries and would sue them out of existence if they weren't grandfathered into our broken copyright system.

Filed Under: books, competition, copyright, free, kenneth whyte, libraries, publishers
Companies: sutherland house books

Happy Birthday, Statute of Anne

from the bitter-reminders dept

Early in my legal career I had the opportunity to attend a conference in London organized to celebrate the launch of the Copyright History project. The goal of this project was to translate, annotate, analyze, and even just simply make available the original primary source documents that underpin our modern notions of copyright. It is an important enterprise because all too often we forget just how these historical documents actually do underpin it. History is often like playing a giant game of "telephone," where meaning changes over time, and in the case of many of these documents our understanding of what they were telling us has also changed over time -- and often become distorted. Having access to these original primary source documents means that we can recalibrate our understanding of what these policies actually were intended to do in order to ensure that our modern notions of copyright echo them properly.

At its launch the project included primary source documents from five jurisdictions -- Britain, Germany, France, Italy, and the US (with others added later) -- and the collection now includes documents from 1450 through 1900. For the conference, some of those original documents were brought in by an archivist and displayed under glass for us to examine. One of them was the original parchment copy of Statute of Anne, which attendees of the conference -- including me -- had the privilege of getting to see up close with our own eyes.

The Statute of Anne, whose anniversary of coming into force on April 10, 1710 we celebrate today, is one of the founding pillars of modern US and UK copyright law. At the time of its passage it reflected an enormous change in attitude about how the copy right should be handled. Before it came along English law (which is not to be confused with Scottish law, whose own system already bore more features of what we would recognize as modern copyright law) granted a monopoly in the copy right to a handful of printers that had the king's permission to publish. (It was fitting, in fact, that the Copyright History conference itself took place in a hall of the Stationers’ Company, one of the most powerful companies of the 17th century that then had near-exclusive license to print.) This use of a royal printing license to create a monopoly in publishing limited to just these few printers gave the government the ability to also limit what ideas could be published, which necessarily limited discourse.

However, the political pressure for democratic reform eventually caught up with this system, and by 1695 it finally gave way for good. And that set the stage for the Statute of Anne to be enacted in 1710, which changed the approach to copyright entirely. While the Licensing Act of 1662 was “[a]n act for preventing the frequent abuses in printing seditious treasonable and unlicensed books and pamphlets,” the Statute of Anne was purposefully “[a]n act for the encouragement of learning.” Whereas the former was about government control over ideas, the latter was about spreading them. Instead of using royal printing licenses to administer the copy right as a means of controlling discourse, by its very design the Statute of Anne was meant to stimulate it.

And it did. Right away newspapers proliferated, public houses exploded with popularity (as they had during earlier periods when licensing statutes had lapsed), and democratic ideals flourished as tight government control over ideas yielded. But while the structure of modern copyright law today looks much as it did following the Statute of Anne, its limiting effects on discourse now seem more similar to the period that preceded it.

There were a few other key differences between the Statute of Anne and the licensing statutes before it, beyond just their stated policy goals, which bore on the former's ability to stimulate discourse. For instance, the Statute of Anne fundamentally shifted the role of the author. Before the Statute, authors were largely relegated to subordinate figures, barely mentioned in association with the work. Instead full authority for the work was usurped by the printer, who, as an agent licensed to act on behalf of the government, had the sole discretion to deem it acceptable to be published. With the Statute of Anne, however, authors became central to the whole system. They retained full authority for the work and as such retained the rights to control its publication.

These rights were of limited duration, however, and the Statute of Anne further enhanced public discourse by creating a public domain. In fact, the only reason the Statute of Anne gave authors any limited rights was simply to address the problem of market failure. The fear was that no ideas would be contributed to public discourse at all if it were economically impossible for authors to contribute them. With the goal of the Statute being to get those ideas out there, these limited author monopolies were intended as a means for achieving that end.

Unfortunately, however, while in the early 18th century the focus on protecting and enhancing the rights of authors was intended to facilitate the growth of public discourse around those ideas, today that same focus on authors' rights does the exact opposite. With so much emphasis now being put on the rights of the author as owner of the work to control it, at the expense of the public benefit the system is supposed to impart, it has had the effect of choking off what discourse these works might spawn. Through needlessly lengthy monopolies and overly-expansive interpretations of the reach of these rights, history seems to be repeating itself, returning us to the discourse-choking limitations of the licensing era and forsaking the promise of the Statute of Anne to promote its spread.

For, just like the 17th Century printers, these authors’ copy rights get their teeth from government. They are government-granted monopolies with government-sanctioned reaches. With those rights, and with the government’s blessing, authors can limit ideas’ consumption and dampen their reach and influence long after any economic necessity would justify -- and just as the licensed printers once did. Back then the Stationers’ Company had powers of search and seizure and could prosecute competing printers; today, particularly as copyrights are so often aggregated in the hands of a few large corporate gatekeepers, modern infringement lawsuits look much the same.

So we find ourselves at the turn of the 21st century at the same crossroads we were at 300 years earlier, faced with a choice in how we use government power. Do we use it to enable public discourse, or to stifle it? For although our modern copyright systems trace their lineage back to the author-focused structure of the Statute of Anne, that basic structure alone does not determine which value is fostered. It’s how we implement it that matters to which ultimately survives.

Yet unfortunately, today, while the original document articulating that policy value to promote the spread of ideas has been carefully preserved, thanks to how we've enshrined the notion of copyright in our modern law, the historic change it was to herald has not.

Filed Under: authors, copyright, printers, publishers, statute of anne

Once More With Feeling: There Is No Legal Distinction Between A 'Platform' And A 'Publisher'

from the stop-pushing-this-nonsense dept

Alexis Madrigal, over at the Atlantic has a mostly interesting piece recounting the history of how the big internet companies started calling themselves platforms. The history is actually pretty fascinating:

There was a time when there were no “platforms” as we now know them. That time was, oh, about 2007. For decades, computing (video games included) had had this term “platform.” As the 2000s began, Tim O’Reilly and John Battelle proposed “the web as a platform,” primarily focusing on the ability of different services to connect to one another.

The venture capitalist Marc Andreessen, then the CEO of the also-ran social network Ning, blasted anyone who wanted to extend the definition. “A ‘platform’ is a system that can be programmed and therefore customized by outside developers,” he wrote. “The key term in the definition of platform is ‘programmed.’ If you can program it, then it’s a platform. If you can’t, then it’s not.” My colleague Ian Bogost, who co-created an MIT book series called Platform Studies, agreed, as did most people in the technical community. Platforms were about being able to run code in someone else’s system.

This was Facebook’s original definition of its product, Facebook Platform, which allowed outside developers to build widgets and games, and extend the core service. In the years before 2016, nearly all of Mark Zuckerberg’s public references to Facebook as a platform were technical, about connecting with developers.

Amusingly, this actually reminded me of articles I had written over a decade ago, talking up why Google and Facebook needed to become a new kind of internet platform -- which I meant in the same manner as Madrigal describes above and which most people talking about "platforms" meant in the mid-aughts. It meant a system on which others could develop new applications and services. I have to admit that I don't know quite how and when the world switched to calling general internet services "platforms" instead, and I'm just as guilty of doing so as others.

I have two quick thoughts on why this may have happened before I get back to Madrigal's piece. First, many of the discussions around these big internet companies didn't really have a good descriptive term. When talking about the law, things like Section 230 of the Communications Decency Act refer to them as "interactive computer services" which is awkward. And the DMCA refers to them as "service providers," which is quite confusing, because "internet service provider" has an existing (and somewhat different) meaning, as the company who provides you internet access. Ideally, those company should be called "internet access providers" (IAPs) rather than ISPs, but what's done is done. And, then of course, there's the equally awkward term "intermediary," which just confuses the hell out of most non-lawyers (and some lawyers). So "platform" came out in the wash as the most useful, least awkward option.

And if Madrigal's piece had just stuck with that interesting historical shift, and maybe dug into things like I did in the previous paragraph, that might be really compelling. Unfortunately, Madrigal goes a step or two further -- and one that goes right up to the line (though it doesn't totally cross it) of suggesting that there's some legal significance to calling oneself a platform. This is something we've seen too many reporters do of late, spreading a false impression that internet "platforms" somehow get magic protections that internet "publishers" don't get.

As we've explained there is literally no distinction here. Usually people are making this argument with regards to CDA 230's protections, but as we've discussed in great detail that law makes no distinction between a "platform" and a "publisher." Instead, it applies to all "interactive computer services" including any publisher, so long as they host 3rd party content. Madrigal's piece doesn't call out CDA 230 the way others have, but, unfortunately, his piece absolutely can be read in a misleading way to suggest that there is some magical legal distinction here that matters. Specifically this part:

This new rhetorical device wasn’t just for press releases, but also for ginning up business and creating a legal architecture.

Uh, what "legal architecture"? Again, CDA 230, the key law in this area, makes no special distinction for "platforms." There was no need for a "rhetorical device" to consider yourself protected (and there still isn't). Nothing in calling oneself a platform set up any legal architecture, no matter how many ignorant people on Twitter claim it is so. Unfortunately, someone who has already heard that false claim is likely to read Madrigal's piece as a confirmation of that incorrect bit of info.

So, let's be clear, once again and state that there is no special legal distinction for "platforms," and it makes no difference in the world if an internet company refers to itself as a platform, or a publisher (or, for that matter, an instigator, an enabler, a middleman, a gatekeeper, a forum, or anything). All that matters is do they meet the legal definition of an interactive computer service (which, if they're online, the answer is generally "yes"), and (to be protected under CDA 230) whether there's a legal question about whether or not they're to be held liable for third party content.

Some people may want the law changed. And they may think that "internet platforms" should require some specific rules and regulations -- including silly, unenforceable ideas like "being neutral," -- but that's got nothing to do with the law today, and any suggestion that it does is simply incorrect.

Filed Under: cda 230, intermediary, neutrality, platform, publishers, section 230
Companies: facebook, google