Publishers Sue Internet Archive over Fake “National Emergency Library”–Artist Rights Watch

[This post first appeared in Artist Rights Watch]

As anticipated, several publishers have sued the Internet Archive run by the anti-artist technologist Brewster Kahle (a copy of the complaint is here, filed June 1 in the Southern District of New York).  The lawsuit concerns the Internet Archive’s so-called “national emergency library” which in reality is another end run around the copyright law by a rich technocrat grasping for relevance in our view.

The complaint sums up the problem for Mr. Kahle’s latest anti-artist activism:

Defendant [Internet Archive or] IA is engaged in willful mass copyright infringement. Without any license or any payment to authors or publishers, IA scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites. With just a few clicks, any Internet-connected user can download complete digital copies of in-copyright books from Defendant.

The scale of IA’s scheme is astonishing: At its “Open Library,” located at http://www.openlibrary.org and http://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.

This is a very Googley case so expect to find the usual suspects showing up to defend the Lost Cause if they’re not too busy holding on to the elite’s other piggery, Section 230 of the Communications Decency Act.  ARW readers will remember that Spotify lawyer Christopher Sprigman and his mentor Lawrence Lessig were lead counsel on the losing side in Kahle v. Ashcroft (later v. Gonzales) which was Mr. Kahle’s unsuccessful challenge to the elimination of the renewal requirement under the 1992 Copyright Renewal Act in an attempt to revive that trap for the unwary. Professor Sprigman continued carrying Kahle’s water as a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated for the registration artifact (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”).

Although the docket for the publishers’ case against the Internet Archive doesn’t reflect a lawyer for the Internet Archive as yet, it would not be surprising to see these names crop up, not to leave out Daralyn Durie who has repeatedly led the charge against authors, artists, and all the other creators that Google chews up and spits out.  Ms. Durie and her colleague Joseph Gratz proudly screwed over authors in the Google Books case with this kind of Orwellian logic according to Business Week:

Google attorney Daralyn Durie told Judge Denny Chin in federal court in Manhattan that authors and photographers would be better off fending for themselves because their circumstances varied widely, especially since the copyright issue for authors involves the display of small snippets of text.

Judge Chin, however, wasn’t buying this line of reasoning–which could easily have been summarized as “If it please the Court, Google would like to get away with it.”  Because after all, “nothing says freedom like getting away with it” and we know that Google is all about Internet Freedom.  We’ve never been too sure what “Internet Freedom” means, but it apparently includes attacking creator organizations (including unions).  According to Business Week, “[t]he judge agreed that Google is ‘hoping that individual authors won’t come forward.'”

This is the kind of maneuvering we can expect (and don’t forget that Ms. Durie led the charge against the Beastie Boys on behalf of one Goldieblox in its 15 minutes).

The Internet Archive attracted the attention of Senator Thom Tillis who is currently conducting a series of hearings into the continued utility of the DMCA safe harbor for the richest companies in commercial history (aka the value gap).  Senator Tillis wrote this letter to Mr. Kahle saying:

I understand that your “Library” will last until June 30, 2020 or the end of the coronavirus emergency in the United States, whichever is later, and that during this time, the Internet Archive will make 1.4 million books it has scanned available to an unlimited number of users. 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.

As I am sure you are aware, many authors and publishers are struggling during this pandemic. Just this past Monday, the president of the Authors Guild noted in the New York Times that: “Authors have been hit hard by the pandemic …. It could be a career-destroying time for some authors, many of whom are struggling to make a living.” At some point when the global pandemic is behind us, I would be happy to discuss ways to promote access to books in a manner that respects copyright law and the property interests of American authors and publishers.

Mr. Kahle, of course, responded and could not resist a snipe at the Authors Guild referencing the absurd Google Books case (although note that Internet Archive is being sued by the publishers, not the Authors Guild, so they are apparently not the “leading critic”):

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.

 

And so, here we are.   Lessig, Sprigman, Samuelson and Durie all have some new raw meat to chew on as authors are on the menu again thanks to the Silicon Valley crowd.  It will be interesting to see who takes up Mr. Kahle’s cause this time.

For a deep dive into the issues, here’s a recent video from the Artist Rights Symposium II panel on the Internet Archive with the Anonymous Librarian, John Degen, David Lowery, Robert Levine, Jonathan Taplin, moderated by Terrica Carrington.  The Anonymous Librarian is a real librarian at a major education institution who remains anonymous due to feared retaliation from Google and the Google-backed librarian trade associations.

 

 

Attention BrewBros: @SenThomTillis Asks Nicely That Internet Archive Stop the “National Emergency Library” Sham — Music Technology Policy

MTP readers will no doubt have been following the absurd “National Emergency Library” scam that anti-artist activist Brewster Kahle is pushing to the great satisfaction of the BrewBros.  BrewBros based the “National Emergency Library” on a “superpower” interpretation of fair use (no, that’s really what they said) that is yet another example of a very Googlely  weaponization of fair use.

The BrewBros have caught the attention of Senator Thom Tillis, chair of the U.S. Senate Judiciary Committee Subcommittee on Intellectual Property, who sent this letter into the heart of darkness today, which should finally provoke the Google lobbyists to come out into the daylight (looking at you, Matt):

Mr. Brewster Kahle
Founder and Digital Librarian
Internet Archive
300 Funston A venue
San Francisco, CA 94118

Dear Mr. Kahle:

I write to you as Chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property, following the Internet Archive’s recent announcement of its National Emergency “Library” initiative amid the coronavirus pandemic. The Subcommittee has jurisdiction over our nation’s intellectual property laws, including copyright law. As you may know, in February my Subcommittee began a year-long review of the Digital Millennium Copyright Act with an eye toward reforming it for the twenty-first century.

I recognize the essential nature of books and publishing efforts during these challenging times. As schools, libraries, and bookstores have closed their physical locations across the nation, continued access to books is important to ensure that students and teachers have the materials they need for remote learning. It is also important that the general public has access to various types of books and written materials. I have been encouraged to see authors, publishers and other copyright owners ease these struggles of students, parents, educators, and the general public. Among other efforts, they are providing valuable content and online courses for free, providing flexible licenses for distance learning and enjoyment, and extending access to audiobooks and e­books. These voluntary efforts should be commended, not only because they are expanding access to copyrighted works, but also because they do not violate copyright law or harm creators. On the contrary, these times have shown the critical value of copyrighted works to the public interest.

As you can see, I deeply value access to copyrighted works, but that access must be provided within the bounds of the law-even during a national emergency. I understand that your “Library” will last until June 30, 2020 or the end of the coronavirus emergency in the United States, whichever is later, and that during this time, the Internet Archive will make 1.4 million books it has scanned available to an unlimited number of users. 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.

As I am sure you are aware, many authors and publishers are struggling during this pandemic. Just this past Monday, the president of the Authors Guild noted in the New York Times that: “Authors have been hit hard by the pandemic …. It could be a career-destroying time for some authors, many of whom are struggling to make a living.” At some point when the global pandemic is behind us, I would be happy to discuss ways to promote access to books in a manner that respects copyright law and the property interests of American authors and publishers.

Sincerely,

Thom Tillis
Chairman
Subcommittee on Intellectual Property

“Google & The World Brain” Airing Now on Al Jazeera America

This may be the single most important piece of work to date that explores the rights and concerns of creators in the digital age. The film details how Google has made plans to commercially monetize and monopolize all creative works for their own corporate profit.

FIND CHANNEL AND AIRTIME:
http://america.aljazeera.com/watch/2013/8/trailer-for-googleandtheworldbrain.html

MORE ABOUT THE FILM:
http://www.worldbrainthefilm.com/

The goal of accumulating all human knowledge in one repository has been a dream since ancient times. Only recently, however, has that dream become a reality. Quietly and behind closed doors, Google has been executing a project to scan and digitize every printed word on the planet. Working with the world’s most prestigious libraries, the webmasters are reinventing the limits of copyright in the name of free access to anyone, anywhere. What can possibly be wrong with this? As “Google and the World Brain reveals,” a whole lot.

Some argue that Google’s actions represent aggressive theft on an enormous scale, others see them as an attempt to monopolize our shared cultural heritage, and still others view the project as an attempt to flatten our minds by consolidating complex ideas into searchable “extra long tweets.”

At first slowly, and then with intensifying conviction, a diverse coalition mobilizes to stop the fulfillment of this ambitious dream. Incisive and riveting as it uncovers a high-stakes multinational heist, Ben Lewis’s film voices an important alternative to the technological utopianism of our time.