June 10, 2020
Mr. Brewster Kahle
Founder and Digital Librarian
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.
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/.
If you’ve ever seen the classic musical The Music Man, you will remember the stereotypical character of “Marian the Librarian” who was romanced by the grifter Harold Hill. When it comes to the Internet Archive, we’re way past Marian but we have a whole new character in the role of grifter.
Brewster Kahle is not likely a name you recognize. But he is definitely well-known to the digital elites–which we know because his picture shows up in the 2000 version of the Billionaire’s Dinner rubbing elbows with the cognoscenti including fellow diners Nicholas Negroponte of MIT and MIT patron Jeffrey Epstein. Somewhere along the line Mr. Kahle seems to have gotten very rich or perhaps richer still. And he also founded Alexa and the Internet Archive which is our focus in this post because of the Archive’s announced “National Emergency Library.” We’ll come to that effort presently, but first let’s consider Mr. Kahle’s history in the copyright context.
A Man With A Mission Meets A Dandy on the White Horse
Mr. Kahle was and is a man with a mission in the mold of his fellow pirate utopian and EFF founder, John Perry Barlow. Less flamboyant to be sure, but cut from the same anti-copyright cloth Mr. Kahle has attracted literally the same crew of Lost Cause dead enders. These dots will be very familiar. It’s all very Googlely and Mr. Kahle has shown himself to be as close to Google’s mission as one is to two. Whether revolutionary leader or useful idiot, Mr. Kahle has proven his value to Google again and again over some two decades.
Copyright students may remember Mr. Kahle from 2006 as the plaintiff in Kahle v. Gonzales, one of the cases where Lessig did a brilliant job of making the predictably losing argument as an extension of yet another losing argument from Lessig’s cherished Eldred case. (Has Lessig ever won anything that Google didn’t pay for?)
Mr. Kahle challenged the Copyright Renewal Act of 1992 that eliminated once and for all the renewal requirement from the U.S. 1909 Copyright Act that was held over in the 1976 Copyright Act for certain registrations. (Lessig was joined as co-counsel in the Kahle case by his protege Professor Christopher Sprigman; Sprigman is a leading anti-artist zealot. He currently represents Spotify in the Nashville cases and is leading the American Law Institute’s embarrassing and scandalous “Restatement of Copyright” trojan horse campaign that has been thoroughly discredited.)
Kahle, Lessig and Sprigman essentially argued then and now for a renewal requirement to make copyright renewals an opt-in system rather than an opt-out system. That meant that authors would have to take an affirmative act to renew their copyrights after an initial term. As Lessig writes back in 2003, “The revival of a registration requirement would move content into a public domain quickly….There are many who have written brilliantly about what is right in this context….But the hard problem is how to make the right real. That is what this movement needs now.”
You get the idea. The Lost Cause is born. And Kahle was apparently only too happy to finance “the movement” with a younger Lessig imagining himself on a white horse leading the mob. Younger but just as much the tiresomely self-righteous Google fan boy and thin-skinned ideological dandy. Because the Lost Cause was “right”. Beware men on white horses waiving the privilege of “what is right” backed by the superpower billionaire boys club.
It must be said that a creator’s failure to comply with Mr. Kahle’s new formalities of registration and renewal (unique to America, by the way) would allow the Big Tech superpower benefactors of Lessig, Sprigman and Kahle. Like superpower privilege that induced a mass taking by the National Emergency Library, Big Tech superpowers could exploit those unrenewed copyrights without a license or payment to the authors, also known as the public domain, public knowledge, or any of the other shibboleths that mask the very traps for the unwary that Congress wanted to prevent in the 1992 legislation. (In another proof of the Lost Cause, Kahle’s lawyer Professor Sprigman was later a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated for the very registration requirement that they resoundingly lost in the Kahle case (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”.)
For those reading along at home, procedurally the odd and rather desperate signpost of the Kahle case was that Lessig largely based Kahle on Eldred which he lost in the Supreme Court. When Kahle got to the 9th Circuit, this oddity was not lost on the judges who held–in possibly the least suspenseful ruling of the decade–that “[Lessig, Sprigman and Kahle] make essentially the same argument [in Kahle], in different form, that the Supreme Court rejected in Eldred. It fails here as well.”
So Kahle got into trouble at 9th Circuit. As Harold Hill might warble, that’s trouble with a T that rhymes with P and that stands for “phool.”
Kahle’s Lost Cause and the National Emergency Library’s Fair Use Superpower Privilege
Yet despite continued losses, re-imposing a copyright registration requirement has become the Lost Cause of the anti-artist crowd. Not only has Lessig pushed this hustle, but its proponents include Pamela Samuelson and Christopher Sprigman, so we can only assume that the controversial “Restatement of Copyright” promoted by Samuelson and written by Sprigman will no doubt devote some ink to this topic. Indeed, we saw Samuelson raise registration in her most recent testimony in a bizarre hearing before the Senate IP Subcommittee.
And we also see a version of it in the Internet Archive’s absurdly transparent lawlessness masquerading as fair use with its “National Emergency Library” which takes post-disaster profiteering to a whole new level.
In a nutshell, the Internet Archive is seizing upon the COVID19 global crisis to make digital copies of books of dubious provenance available for free. They managed to get a bunch of libraries to sign a letter saying how groovy the Internet Archive is for graciously aiding the world–if this sounds familiar, it is very reminiscent of the Google Books messaging as the “digital library of Alexandria” and other drivel. (See the timeless Google and the Myth of Universal Knowledge: A view from Europe by Jean-Noël Jeanneney, then president of France’s Bibliothèque Nationale.)
As someone who grew up with both hurricanes and earthquakes, I have a viscerally embedded disgust for those grifters who exploit human misery for their own private agenda, be it profiting in cash or distorting the fair use defense beyond recognition to confer a cash equivalent benefit. Both are equally loathsome forms of looting and under the circumstances may well be a form of price gouging. If proven, that’s a crime in most states. Indeed, if imposed by state authority, such as a state library, it may well be found to be an impermissible form of eminent domain, or a taking. There’s that word again.
The National Emergency Library: Leap of Faith or Superpower Privilege?
What makes a casual interest into a full-blown negationist Lost Cause ideology is the leap of faith that the dead ender’s ill conceived campaign was actually “right” all along. (A healthy rasher of narcissism is also a nice-to-have.) You know, defending consumer rights against the aggression of copyright maximalists. You see, it was only the privileged Bad People conspiring against them that gypped the Good People of the victory to which they were entitled. In fact, Mr. Kahle says as much in the Internet Archive blog announcing the “National Emergency Library”:
“The library system, because of our national emergency, is coming to aid those that are forced to learn at home, ” said Brewster Kahle, Digital Librarian of the Internet Archive. “This was our dream for the original Internet coming to life: the Library at everyone’s fingertips.”
And there it is, the Lost Cause defined. The indefinite “our”. Who exactly is “our” or “us”? The Good People. The Right People. The movement people. Whose superpowers you oppose at your peril you others. You authors. Because “our” national emergency justifies “our” fulfillment of “our dream.”
The Good People share that “dream” of “ours” as we are told in the Archive’s blog post cum press release:
“Ubiquitous access to open digital content has long been an important goal for MIT and MIT Libraries. Learning and research depend on it,” said Chris Bourg, Director of MIT Libraries.
Ah yes, MIT’s goal must be extra groovy, right? I’m sure Joi Ito (of Creative Commons fame among other rewards) thought so when he was taking Jeffrey Epstein’s money with MIT’s blessings.
The Googley Expansion of the Fair Use Superpower as Eminent Domain Taking
And of course the central rationale for why the Archive could rip off over a million books is…wait for it…fair use. But a very super duper version of fair use that you may not have encountered before. This is a super duper opinion shared by 300 or so librarians, many of whom appear to be employed by state-owned libraries. They signed a letter promoted by the Internet Archive that puts their taxpayer subsidized employment right on the line.
You have to take a step back and look at the National Emergency Library in the larger context of the continued distortion of fair use by Google and its cronies as we recently argued in an amicus brief supporting Oracle in Google v. Oracle, the long-running copyright case now pending before the Supreme Court that is straight out of Bleak House.
Unfortunately, like the DMCA, Section 230 and so many other grotesquely unfair benefits that Big Tech superpowers grasp for themselves, the only way to fight back in the chaos of the current pandemic is to literally fight back. Big Tech’s superpower billionaires are doing just fine as authors struggle even more than before the time of the virus. But these people are more than willing to capitalize on the current crisis to distort copyright exceptions like fair use, just like Google is forcing users of its Verily coronavirus test to open a Google account and give up their health data.
I for one find it very odd that 300 or so librarians could all agree in a matter of hours on a complex legal opinion regarding expanding the contours of fair use–unless that opinion were written for them by someone they already knew. Such as their lobbyist, for example. Maybe not, but it does seem it’s something that state Attorneys General should look into as it applies to their librarians. Assuming that signing up for the scheme is not simply aspirational and they are all actually participating in the cabal, these librarians are incurring liabilities for their employers and quite possibly the taxpayer. If state libraries are indemnifying the Internet Archive, that indemnity may well be impermissible under their respective state laws–and that’s something that ought to interest attorneys general, as would the converse failure to obtain indemnity.
On the other hand, one of the legal arguments used as encouragement to librarians to sign onto the legal opinion was offered by one Kyle Cortney (securely employed by Harvard University) based on the privilege of “superpowers.” Yes, that’s right:
[L]ibraries and archives have “superpowers” under the copyright law that allows us to supply our communities with access to materials for research, scholarship, and study….Before I get to the TEACH Act, Section 108, or any other superpower – first and foremost, we must talk about fair use. While this isn’t a library superpower – fair use is for everyone! – it certainly falls to the libraries and archives, in many circumstances, to be the champions of fair use on campus (and bust any fair use myths!)
See? “Our dream”, “our national emergency”, “our superpowers.” And “our” powers are so “super” that “we” will shove those superpowers where the sun doesn’t shine in the middle of the Harvard Yard. All based on a superpower of blatant distortions of fair use subsidized by the endowment of the richest university in the history of the world. But understand this, you will win this argument about the same time that Harvard refunds tuition in the time of the virus. Unless you are willing to go to the mattresses. And if you’re thinking these superpowers are on their knees begging to be sued, you very well may be correct.
That “superpower” privilege may be how they roll at Harvard, but what I’d like to know is how many state AGs have signed up for the superpower theory? Such as the Attorneys General of Illinois, Kansas, Michigan, Virginia, North Carolina, Ohio, Pennsylvania, California, Washington, New York, Indiana, Massachusetts, Florida, Minnesota, Texas, and Idaho.
Maybe the next sound they hear will be sad trombones, all 76 of them.