Publishers Sue Internet Archive over Fake “National Emergency Library”

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 yesterday 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.

 

 

Pandemic: @Music_Canada COVID Study Sets the Gold Standard for Reopening Data-Driven Policy

MusicCanada commissioned an outstanding survey by Abacus Data using serious data-driven methodology to credibly measure the Canadian public’s experience with the COVID shut down of live music and expectation for reopening.  Instead of glorified “Who’s Hot”-level casual polls you see cropping up here and there, The Locked-Down Blues: Canadians, Live Music and the Pandemic sets the gold standard for the kind of data-driven serious national opinion study that policy makers can actually use to plan how to get out of this corner.

The study measures many different factors, including the more intangible questions of what trust level fans will require before they come back to live music.  Regardless of what distancing or contamination standards are imposed, none of that matters much if the fans don’t trust it enough to come out to hear live music in cities like Toronto and Austin.

For example, the study found this reaction:

DESPITE WANTING TO GO, CANADIANS, EVEN THOSE WHO LOVE LIVE MUSIC, SAY THEY WILL BE RELUCTANT TO GO BACK TO LIVE MUSIC EVENTS BEFORE A VACCINE FOR COVID IS FOUND.

Even if they are permitted to go to live music events, many Canadians, including those who love live music the most, will be reluctant to return for some time.

We asked respondents how soon they will feel comfortable enough doing several activities, once physical distancing restrictions are lifted. In almost all cases, fewer than 40% said they would feel comfortable in a few months or less. For most, the time horizon was much longer with many saying they may never feel comfortable again.

For example, 43% said it would take six months or more before they would feel comfortable going to a music festival or a concert in a large venue. Another quarter said they may never feel comfortable going to those types of events again.

I find it hard to believe that there’s going to be an appreciable geographical distinction between Canada and any other country on these issues.  But this study provides a gold standard for other studies in other countries, all of which should be done and done using a robust and defendable methodology.

So let’s be clear–this study is giving you the hard truth.  It is not some Chamber of Commerce hoorah or conclusion-driven clap trap.  It also tells us that the idea that you can just turn the lights back on and people will flock to the clubs may be looking at the wrong ball.  It has serious implications for the entire music industry across all genres.

But–it especially has serious implications for cities like Austin.  Given that the City of Austin commissioned the Austin Music Census in 2015, another robust data-driven study that produced  unwelcome dire conclusions,  it is astonishing that the blinking red light in the Census was completely ignored.  Not only were Austin musicians poorer than the City seemed to think they were, the entire local ecosystem was essentially dependent on live music.  For example, streaming was a negligible source of revenue for Austin musicians–think maybe someone would have wanted to look into that issue as a matter of industrial strategy?  And is there anything about the “Live Music Capitol of the World” that gives you a clue that maybe you might want to start thinking about why all the eggs were in that basket?  As Mark Twain said, if you’re going put all your eggs in one basket, watch that basket.  Or at least don’t ignore it.

Since the City did such a thorough job of ignoring the Census for so long, I wonder if they’re going to be able to figure out how to solve the current crisis.  Or if maybe somebody actually would like Austin to turn into just another college town with a Google campus, self-driving cars busily scraping rider data while stacked up on I-35 and Uber Eats Your Soul.

We can be grateful to Music Canada for commissioning this study and getting it out at the perfect time for policy makers to have some meaningful data driven reality conducted in a manner that could stand up to peer review.  And show the world the gold standard for how to develop policies that actually solve a problem because you better know what the problem is you want to solve.

Here’s the survey:

Click to access Music-Canada-National-Survey-Interview-Schedule_Release.pdf

Shining Tan: TikTok on the Clock: A Summary of CFIUS’s Investigation into ByteDance

As quarantine has put normal life on pause, TikTok, the short-video social platform from China, has exploded in popularity and influence in the United States and around the world. The app was downloaded over 2 billion times globally and 165 million times in the U.S. in Q1 of 2020.

However, TikTok’s Western continued presence depends on the ongoing Committee on Foreign Investment in the United States (CFIUS) review into ByteDance. The outcome of this review ByteDance will have a significant impact on lives of American consumers.

Read the post on Center for Strategic and International Studies

Pandemic: @NaomiAKlein on Google’s “Screen New Deal”, COVID as biometric data privilege feast