Tag: Internet Archive

Guest post: Attention BrewBros: Internet Archive Announces Closing of National Emergency Library

By Chris Castle

The eponymous Mr. Kahle announced with the usual huge heaping rasher of sanctimonious twaddle straight from the mollycoddle mumbletank that the so-called “National Emergency Library” was closing early.  Not because Brewster Kahle did anything wrong, not because he got a Tillis-gram, no no no.  It’s because there are other resources for the “Internet bound.”

Internet bound.  You read that right.  Yet the crepuscular “National Emergency Library” is fading into the sunset according to an Internet Archive blog post.  Personally, I’ll believe it when I see it.

Today we are announcing the National Emergency Library will close on June 16th, rather than June 30th, returning to traditional controlled digital lending. We have learned that the vast majority of people use digitized books on the Internet Archive for a very short time. Even with the closure of the NEL, we will be able to serve most patrons through controlled digital lending, in part because of the good work of the non-profit HathiTrust Digital Library. HathiTrust’s new Emergency Temporary Access Service features a short-term access model that we plan to follow.

We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic.

Yes, those heartless “commercial publishers”.  You see, the saintly Mr. Kahle is not motivated by money (having already enriched himself with his snout in the Silicon Valley cash tank).  Those commercial publishers were enforcing their rights.  And during a pandemic, no less.  Any self-reflection there?  Not a bit.  No thought that Mr. Kahle himself was taking advantage of a pandemic to engage in price gouging, which is just white-collar looting.  As someone who grew up with both hurricanes and earthquakes, I have zero sympathy for the dude.

But this is the usual running for the exits that these people all try to hide behind.  You sue them for bad behavior and they think that if they just stop doing the bad thing once they were caught and called out, you should welcome them back to humanity.

Not really.

As the IA blog post takes note:

[T]his lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books,   challenging the very idea of what a library is in the digital world. [Not really…just Mr. Kahle’s provocation.  And…cue violins…] This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.

Not bloody likely.  When did Noah build the Ark?  Before the rain, get it?  You take precautions before you are forced to by circumstances.

If you get down on your knees and beg to be sued, don’t be surprised if you are.  And when you are, at least have the courage to own up to the begging.  But wait…I thought that there was all that stuff about fair use was his superpower? What happened to that?

 

by Trichordist

Brewster Kahle Gets Another Tillis-Gram For Internet Archive’s National Emergency Ripoff, this Time with Added Songs and No Mechanicals — Music Technology Policy

June 10, 2020

Mr. Brewster Kahle
Founder and Digital Librarian
Internet Archive
300 Funston Avenue
San Francisco, CA 94118 Dear Mr. Kahle:

I write to you again as Chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property. In my April 8, 2020 letter, I expressed my concern that the Internet

Archive’s announcement of a National Emergency ” Library” filled with 1.4 million books that had been digitized and made available to the public without restrictions and without the permission of copyright owners appeared to be a blatant infringement of thousands – if not more-of copyrights.1   Indeed, the U.S. Copyright Office analyzed  publicly available facts and concluded that though some works included in the National Emergency “Library” might be permitted under fair use, many would not be. The Copyright Office went on to say that “while the Internet Archive’s goal of making research and educational materials publicly available may be laudable, so is respect for copyright.”2

I write now after learning that the Internet Archive is engaged in other initiatives that involve the unauthorized digitization and dissemination of copyright-protected creative works- in this case sound recordings .

According to a May 15, 2020 article in the Seattle Times, the Internet Archive has purchased Bop StreetRecords full collection of 500,000 sound recordings with the “inten[t] to digitize the recordings and put them online, where they can be streamed for free.”3 It is not clear from the article, or others, if you intend to digitize all of the sound recordings acquired  from Bop Street. But it is clear that these sound recordings were very  recently  for sale in a commercial  record shop and likely contain many sound recordings that retain significant commercial value. This raises serious alarms about copyright infringement.

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

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

I recognize the value in preserving culture and ensuring that it is accessible by future generations, such as the Library of Congress’s Recorded Sound Collection and National Recording Registry projects. But I am concerned that the Internet Archive thinks that it-not Congress-gets to determine the scope of copyright law.  With its sound recording projects, the Internet Archive does not even pretend that a national emergency like the Covid-19 pandemic creates a special need for these sound recordings to be freely streamed or downloaded.  Rather, the Internet Archive seems to be daring copyright owners to sue to enforce their rights, or else effectively forfeit them-something many copyright owners, particularly individuals and smaller enterprises, cannot afford to do.

Our copyright system is designed with important limitations and exceptions that ensure that the public can make appropriate uses of copyrighted works even when the copyright owner seeks to prevent such uses-but those are the exception, and free use for those who disagree with the concept of exclusive rights is notone of them. Accordingly, I once again invite you to share with me the legal support, in copyright law or elsewhere, for reproducing and distributing copyrighted works that are owned by others. In particular, how do the Internet Archive’s sound recording digitization and streaming projects-in particular the Great 78 Project-fit within case law interpreting the fair use doctrine and within the relevant provisions of section 108 and the MMA?

Please respond by July 10 , 2020. If you have any quest ions, please do not hesitate to contact me.

Sincerely,

Thom Tillis
Chairman
Subcommittee  on Intellectual Property

 

1 Since then , I understand  that  major  American  book publishers-  Hachette  Book Group,  HarperCollins  Publishers, John Wiley & Sons and  Penguin  Random  House  –  filed  a  lawsuit  alleging  copyright  infringement  and  seeking  to enjoin uses of their copyrighted books in the  National  Emergency  Library  or  the  Internet  Archive’s  “Open  Library,” which had offered the same catalog of books but  with  some  limitations , such as checkout  waitlists.  See  Hatchette Book Grp. v. Internet Archive, No. I :20- cv- 041 60 (S. D.N .Y . filed June I , 2020).

2   Letter from  Maria Strong, Acting  Register  of Copyrights,  U.S. Copyright  Office , to Sen. Tom  Udall , at 21  (May 15, 2020).

3 Paul de Barros , A Happy Ending for Seattle’s Bop Street Records: A Nonprofit Buys Up the Entire Collection, SEATTLE TIMES (May 15, 2020) , https://www .seattletimes.com /entertainment/music/a-happy-ending-for-seattles­ bop-street-records-a- nonprofit-buys- up -the-entire-collection/.

via Brewster Kahle Gets Another Tillis-Gram For Internet Archive’s National Emergency Ripoff, this Time with Added Songs and No Mechanicals — Music Technology Policy

by thetrichordist

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.

 

 

by thetrichordist

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

by thetrichordist