Scholars Back Internet Archive’s Defense of Digital Lending

“A collection of scholars and public interest organizations is backing the Internet Archive’s argument that its digital lending qualifies as fair use, comparable to traditional library lending.

Four major publishers, including Penguin Random House LLC and HarperCollins Publishers LLC, argued in a June 1 lawsuit that the Internet Archive’s practice of lending books it scanned into its 1.3 million book digital library to one reader at a time constituted blatant copyright infringement….”

Libraries Are Updating for Today’s Digital Needs. Congress Needs to Clear the Way. | Public Knowledge : Public Knowledge

“Many libraries have found a solution, at least when it comes to making physical books available digitally. This system is called Controlled Digital Lending (CDL). Libraries have a strong argument that fair use makes it possible to make an electronic copy of a book, and allow someone to “borrow” it, to the extent that such copying simply replicates what would have been possible with physical books under first sale. Under CDL, a digital copy of a physical book can only be read and used by one person at a time. While it is being “lent” electronically, a library engaged in CDL would take the physical book out of circulation, and only one person can “borrow” an electronic book at once. Since any of the copies made under this system necessarily cannot have an effect any different than normal lending could, libraries are on pretty solid ground that these acts of copying are fair uses.

But CDL only gets you so far. While it works with physical books, electronic materials often come with licensing and contract terms, as well as copy-prevention technology, that set highly specific conditions on how the library can lend it out. Certainly, some libraries buy special library editions of books and have various library-specific arrangements with publishers — but they don’t have to. With physical books, libraries are free to buy a book at any bookstore, or take books via donation, and lend them out freely as part of their collection. With electronic materials, libraries generally have to buy licenses for special, restricted library editions, that carry significant usage restrictions and might even expire over time or cause the files to “self-destruct” after a set number of loans.

It’s time for Congress to step in and clarify that libraries should be as free to buy and lend books today as they have been for centuries. We need legislation that ensures that libraries are free to buy ebooks and other electronic materials and lend them out, just as they can with physical media. A library should have the right to simply purchase an ebook at its mass market retail price, and then check it out to patrons one at a time. Licenses for library ebooks shouldn’t expire, and they shouldn’t carry restrictions that prevent libraries from carrying out their educational and archival missions. This legislation should also clarify that existing CDL programs for physical media are lawful, to avoid costly litigation over the fair use arguments….”

June 2020 Librarian Community Call – OpenCon

“To promote public health and slow the spread of COVID-19, thousands of universities and colleges closed campuses and libraries as they moved to remote teaching. Now, teaching, learning, and research continues almost exclusively online. With this shift came many questions about fair use, e-reserves, open licenses, scanning, digitization, and more! Many in the library community are working towards the best solution for students, faculty, staff, and patrons in this time of crisis. What can cultural institutions do to meet the needs of our communities? Join Kyle K. Courtney for a conversation about problems and solutions to some of the more interesting copyright law and policy complexities during the COVID-19 crisis.

This call brings together all librarians working with, or learning about, all things Open–and gives folks an opportunity to connect with each other to better their work and librarianship. …”

The Geek in Review Ep. 61 – Deep Dive on State Copyright Issues with Kyle Courtney and Ed Walters | 3 Geeks and a Law Blog

“The US Supreme Court heard oral arguments on Georgia v. Public.Resource.Org and we take a deep dive into the issues in this matter. Kyle Courtney, Copyright Advisor at Harvard University, and Ed Walters, CEO of Fastcase have strong opinions in this matter, and were both involved in submitting Amicus Briefs on behalf of Public.Resources.Org. Join us for this engaging and informative conversation as we look at what the arguments are from both sides, and how Justices’ questions may shape the outcome of this case.

For more information on this case, check out the oral argument transcript [PDF], or listen here, and a primer with supportive materials from Ed Waters’ on Medium.

 

We also catch up with Emily Feltren from the American Association of Law Libraries to hear what else has been going on in Washington, DC in regards to legal information (we skip the impeachment stuff.) Believe it or not, there are things actually getting done in DC despite all the obvious gridlock.”

FOIA: Film industry lobbies South Africa’s Parliament to suspend Copyright Amendment Bill | Knowledge Ecology International

“Through a Freedom of Information Act (FOIA) request, Knowledge Ecology International (KEI) has obtained 311 pages of correspondence between officials from the Office of the US Trade Representative (USTR) and employees of the Motion Picture Association (MPA), the Recording Industry Association of America (RIAA) and other entities including law firms on matters regarding South Africa and copyright policy. The FOIA request was filed by Claire Cassedy on October 29, 2019. The 311 page document is available here: https://drive.google.com/file/d/1wUYHzgwtYUaYiMLLeGfV7ucxk5Q1tpu0/view?usp=sharing

The correspondence dates from December 2018 to November 2019 and reveals an assiduous campaign mounted by the MPA and RIAA to thwart the passage of South Africa’s Copyright Amendment Bill in the South African Parliament and to prevents its signing by the President of South Africa, Cyril Ramaphosa. The MPA and RIIA, working in concert with the International Intellectual Property Alliance (IIPA) petitioned USTR to impose higher tariffs on South Africa (by revoking the Generalized System of Preferences) over concerns with, inter alia, the fair use provisions contained in South Africa’s Copyright Amendment Bill….”

FOIA: Film industry lobbies South Africa’s Parliament to suspend Copyright Amendment Bill | Knowledge Ecology International

“Through a Freedom of Information Act (FOIA) request, Knowledge Ecology International (KEI) has obtained 311 pages of correspondence between officials from the Office of the US Trade Representative (USTR) and employees of the Motion Picture Association (MPA), the Recording Industry Association of America (RIAA) and other entities including law firms on matters regarding South Africa and copyright policy. The FOIA request was filed by Claire Cassedy on October 29, 2019. The 311 page document is available here: https://drive.google.com/file/d/1wUYHzgwtYUaYiMLLeGfV7ucxk5Q1tpu0/view?usp=sharing

The correspondence dates from December 2018 to November 2019 and reveals an assiduous campaign mounted by the MPA and RIAA to thwart the passage of South Africa’s Copyright Amendment Bill in the South African Parliament and to prevents its signing by the President of South Africa, Cyril Ramaphosa. The MPA and RIIA, working in concert with the International Intellectual Property Alliance (IIPA) petitioned USTR to impose higher tariffs on South Africa (by revoking the Generalized System of Preferences) over concerns with, inter alia, the fair use provisions contained in South Africa’s Copyright Amendment Bill….”

Who’s Afraid of the National Emergency Library? – The Captured Economy

“Over the past month, we have seen considerable outrage and excitement over the Internet Archive’s National Emergency Library, an online source of 1.4 million books that are free to borrow with no waiting list.

Chairman of the Senate Intellectual Property Subcommittee Thom Tillis (R-NC) sent a letter to Brewster Khale, founder of the Internet Archive (IA), expressing his concern that the National Emergency Library (NEL) is acting outside the boundaries of copyright law, noting that he is unaware “of any measure…that permits a user of copyrighted works to unilaterally create an emergency copyright act.”

Given the legal, economic, and societal implications of the NEL, it’s worth taking the time to address some of the criticisms of this project. In general, while the NEL’s legal status is unclear (even more so than the open library that came before it), it is a necessary balance against the closure of brick-and-mortar libraries around the country, with uncertain costs to artists and clear public health benefits….

The strongest case against the NEL is that by providing books for free, it deprives rights holders (a group that includes publishers, not just authors) revenue they expected. This has been melodramatically equated with looting after a hurricane, but that just isn’t the case. The nonrivalrous nature of ideal objects makes it such that the consumption by one doesn’t prevent another from doing the same. This is a false equivalence, plain and simple, and those who use this analogy do not deserve the moral high ground they seek.

The category error in the treatment of ideal objects as property, however, does not invalidate the need for copyrights and patents. The potential for free-riding to deter investment in the production of creative works is real (though overstated), and requires some form of government intervention to address.

At the same time, not every act of infringement equates to a loss to the rights holder (who is in many cases not the author). If the goal of NEL’s critics is to protect the ability of artists to earn a livelihood, it is a noble one, but also does not require an unqualified condemnation of NEL….”

 

When An Island Shuts Down: Aruba & the National Emergency Library – Internet Archive Blogs

“On March 15, the small island nation of Aruba, part of the Dutch Carribean, closed its borders to visitors. Cruise ships packed with tourists stopped coming. Casinos, libraries and schools shut their doors, as Aruba’s 110,000 residents locked down to halt the spread of COVID-19.

That’s when the Biblioteca Nacional Aruba (National Library of Aruba) swung into action. 

Librarians quickly gathered reading lists from students, parents and schools. With high school graduation exams just a month away, the required literature books would be crucial. Aruban students are tested on books in Dutch, English, Spanish and their native language of Papiamento. “Just before your literary final exams, you need to re-read the books,” explained Peter Scholing, who leads digitization efforts at the National Library of Aruba. “The libraries are closed. Your school libraries are closed. You can order from Amazon, but it takes weeks and weeks to arrive. If you are in an emergency, then you hope your books are online.”

Scholing was relieved to discover that most of the required literature in English and Spanish was available in the Internet Archive’s National Emergency Library. As library staff moved to work from home, they grabbed the tools to digitize the books in Papiamento that were missing. Many local authors were easy to track down and most gladly gave permission for free downloads or loaning their works. Scholing reports, “Some of them choose digital lending. But a lot of them  say, ‘Well it was a limited print run….I’ve sold all the copies of my books, now you can just make it available for download.’” …”

Open letter from Senator Tom Udall to the US Copyright Office

“Thank you for your work and leadership at the U.S. Copyright Office. I write to you in consideration of the COVID-19 pandemic’s recent effect on temporary library closures, and the subsequent availability of books and other media to the public, including materials used for distance learning of students facing extended school closures. I encourage your office to work with America’s libraries, within existing law, to maximize the availability of educational materials for the benefit of both students and the broader public, while respecting the copyrights of authors who rely on royalties for their livelihoods.

As part of this effort, I also urge you to examine the National Emergency Library that has been organized by the Internet Archive which is operating without typical library licenses and is causing authors in New Mexico concern about the integrity of their copyrights. While the Internet Archive is one outlet, there may be others who are taking similar actions or plan to pursue them in the future, so I believe legal guidance from your office on this topic is in the public interest….”

Libraries Do Not Need Permission To Lend Books: Fair Use, First Sale, and the Fallacy of Licensing Culture | Kyle K. Courtney

“Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.

And, many of us have watched as librarians, educators, parents, and students have questioned (and battled) over to right to read books aloud online to schoolchildren or to stream movies or music for our new online “classroom” environment. We have also heard about resistance to emergency or temporary digital libraries to increase access to the materials needed for education and research during this pandemic….”

Playing Stickball in Canarsie? Better Learn Brooklyn Rules | NISO website

“The Internet Archive saw this in terms of a global need and moved to serve any population whose circumstances had deprived them of local access. At the same time, while content providers and libraries continued working to ensure that access to needed resources was available, the Internet Archive was drawing attention to the problem that, for some market segments, the model does not meet the need….

In a public health crisis, it’s easy to assume that existing practices will be set aside in favor of new societal conditions in order to meet an emerging need. For a more traditionally-understood information community, we understand that we’re operating within an imperfect, artificial construct with an intentionally limited view of technology and use. However, it is one that has been worked out in recent decades by publishers and librarians through adversarial as well as collaborative engagement….

Set aside for the moment worries about unanticipated legal precedents in copyright and the agony of renegotiating world treaties. One take-away from this global pandemic might be the humble recognition that there are existing needs in the marketplace that are not satisfactorily served by current access models….

Access models need to serve fundamental business requirements, of course, but surely there is room for improvement. The question is whether it is time to work out better possibilities, better models for satisfying information needs in a marketplace ready for new efficiencies and approaches. How might we innovate more successfully to ensure that critical information resources are made accessible to all?”

In Defense of the National Emergency Library: A Call to Library Solidarity and Partnership with the Internet Archive – Cal schol.com

“Public and university libraries have paid hundreds of millions, if not billions of dollars, to own, catalog, and preserve print books, only now to be rendered utterly incapable of providing access to them. That is a massive waste of public funds and decades of work by librarians.

Start with that Constitutional argument of public investment for the public good, and the protestations of for-profit publishers and the Authors Guild against the National Emergency Library fall flat and ring hollow.

Many national copyright experts and Library Deans have signed off on Controlled Digital Lending as legally sound and solid. Given the current and ongoing unavailability of print books from thousands of university and public libraries, it makes perfect sense why copyright experts such as Kyle Courtney at Harvard are very confident of the National Emergency Library as a legitimate application of Fair Use law….”

The Chilling Effect of Copyright Permissions on Academic Research: The Case of Communication Researchers | infojustice

Abstract:  Communications researchers in the U.S., who routinely analyze copyrighted material, both qualitatively and quantitatively, face challenges from strict copyright. The doctrine of fair use permits some unpermissioned use of copyrighted works. Survey research shows that researchers routinely need access to copyrighted material; that they are often unsure or confused, even unknowing, about fair use; and that this lack of knowledge and/or familiarity leads to both failure to execute and failure to initiate, or “imagination foregone.” Creating a best practices code has improved knowledge but more institutional change is needed for knowledge to inform action.

 

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

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

The LawBytes Podcast, Episode 47: Brewster Kahle, Chris Freeland and Kyle Courtney on the Internet Archive’s National Emergency Library – Michael Geist

“Communities around the world raced to respond to the coronavirus pandemic last month by shutting down as businesses, schools, and libraries were rendered unavailable seemingly in an instant. One of the effects of the shutdown was that hundreds of millions of books were immediately made inaccessible to students, teachers, and the wider community.  The Internet Archive responded with the National Emergency Library, a tweaked version of its Controlled Digital Lending program that brings scanned versions of millions of lawfully acquired books to readers under strict controls.

I’ve been a longstanding board member of Internet Archive Canada and was pleased to be joined on the podcast by Brewster Kahle (founder of Internet Archive), Chris Freeland (Director of Open Libraries at Internet Archive), and Kyle Courtney (lawyer, librarian and the copyright advisor at Harvard University) to talk about the Internet Archive, controlled digital lending, the National Emergency Library, and the copyright implications of recent developments….”