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/.
[Some of you may have noticed that the U.S. Senate Committee on the Judiciary, Subcommittee on Intellectual Property is holding a hearing at the Senate on March 10 entitled “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?”. Sounds like the witnesses would be from outside the U.S., right? But the witness list is interesting because the only person not from the U.S. is Julia Reda, the former Pirate Party Member of the European Parliament. Although you wouldn’t know about the Pirate Party fact from Ms. Reda’s Truth in Testimony biography. We remember, of course, but it would be relevant for her to mention that affiliation given the topic. Oh, well. Recall that the Pirate Party frequently disclaimed any connection to the Pirate Bay. There’s no connection, like the Pirate Bay’s co-founder Peter Sunde was just coincidentally running for the EU Commission Presidency on the Pirate Party slate at the time of his arrest and imprisonment in Sweden. Also see one of the first posts on MusicTechPolicy, “But Do Their Eyes Glow: The Children of the Lessig God and the Viking Pirate Kings.”
Another witness at the March hearing is Professor Pamela Samuelson. We also remember Professor Samuelson’s 2013 testimony before the House Judiciary Committee regarding her Copyright Principles Project. If you’ve been following the scandal regarding the American Law Institute’s Restatement of Copyright like Senator Tillis has, that name and that project may sound familiar–Professor Samuelson essentially is attempting to codify the Copyright Principles Project through the back door of the ALI Restatement. This time with the assistance of Spotify’s lawyer Christopher Sprigman who recently launched a gratuitous savaging of David Lowery.
Back in 2013, I wrote a post on Music Tech Policy regarding an exchange between Samuelson and then-representative Ron DeSantis (now governor of Florida) regarding the issue of registration. Remember, the Copyright Principles Project and Christopher Sprigman (and therefore Lessig) all are enamored of copyright registration (but never seem to address the expense to the Copyright Office). I cynically believe that it is so that more people can get tripped up by failing to comply with the formalities such as we recently saw in the Woody Guthrie case which has a mind numbing reliance on flaws in the Luddite last-century formalities of the 1909 Copyright Act that was in effect for “This Land is Your Land.”
If you want to get the context of this reblog, you should read David Lowery’s post in Politico that came out a couple days before Samuelson’s 2013 testimony and featured prominently at the hearing.]
A question came up regarding copyright registration at the May 16, 2013 House IP Subcommittee hearing featuring Professor Pamela Samuelson. Professor Samuelson teaches at the University of California at Berkeley and also runs the Samuelson Glushko system of academic legal centers (the “Glushko” is Professor Samuelson’s husband, Dr. Robert Glushko, a Santa Clara Valley (aka “Silicon Valley”) tycoon and fellow academic). The network of the Samuelson-Glushko centers are located at schools such as Fordham, American University, Colorado University, University of Ottawa in Canada and of course the University of California at Berkeley.
I think it’s fair to say that the academics in these centers have an abiding interest in what can be called the “copyleft” side of the policy continuum. The Samuelson Glushko centers sustain many luminaries of the copyleft such as Michael Geist and Peter Jaszi who frequently purport to speak for the “public interest”. Somehow their interpretation of “the public interest” never seems to include the artist side–which is, after all, where copyright starts–and always seems to benefit the multinational technology companies such as Google. This may explain why we find Professor Samuelson on the board of the Electronic Frontier Foundation, an organization that is no friend of artists and that received long term funding from Google.
The reason that Professor Samuelson was testifying before the IP Subcommittee is that she formed a discussion group called the “Copyright Principles Project” or “CPP” around the time of the failed Shawn Bentley Orphan Works Act. As Representative Ron DeSantis (R-FL) determined by questioning Professor Samuelson at the 2013 hearing, the CPP was convened by Professor Samuelson with one principal qualification for membership: That each was a member of Professor Samuelson’s rather exclusive “social network,” i.e., an FOP (“Friend of Pam”).
In 2010, Professor Samuelson wrote up some of the CPPs collective ideas in a “white paper” of sorts called “Copyright Principles Project: Directions for Reform.” The white paper has a list of those “convened” and based on the testimony of attorney Baumgarten and other information, there was little broad consensus about many of the “principles” but everyone was very polite to each other (as one might expect given that no one whose livelihood was at stake seemed to be included in the FOP “social network”). The flaws of composition and conflict of interest in CPP is discussed elsewhere on MTP.
I mention the formation of the social network in relation to the (second) failed attempt to pass an “orphan works” law in the US for a reason. This post is limited to the “reformalization” of copyright advocated by the Copyright Principles Project and the inevitable interaction of that new registration requirement with the orphan works issue. It is well to remember actively that the word “registration” in the white paper has a special meaning, and not the meaning that we currently attach to a copyright registration, or even the meaning attached to copyright registration under the 1909 Copyright Act. Although the word “registration” is the same in the past and current law and the white paper, the meaning is quite different.
Professor Samuelson described it to the committee as “rethinking registration in a way that will take advantage of the opportunities of the new information technology environment.” We’ll come back to this–for now, realize that it is the intention of the CPP to use the “new information technology environment” to give effect to this new registration requirement. That is, to burden creators, not to help locate creators. The witnesses were asked what had changed since their 2010 paper, and they all mentioned cloud computing and the proliferation of devices. None of them mentioned The Death of Privacy. The Death of Privacy should make it easier than ever to track down a creator to ask their permission to use their works.
This was never discussed.
When combined with the orphan works recommendation advocated by the CPP, the concept of registration as described in the white paper seems designed to create a new class of works available for mass exploitation: works that are not registered, even without regard to whether the author could otherwise be found. These unregistered works may or may not be true “orphans” in the sense that the author or owner cannot be found after looking in the right place; rather, the work is simply not registered for some reason known only to the creator.
This approach changes the default from the “get a license” requirement on the user, to a new “chase a license” burden on the creator.
There was a 6th witness at the hearing–one that was not actually present, but whose presence was felt by all concerned. David Lowery had published an op-ed at Politico.com in the days prior to the hearing and it seemed that many of the Members of the IP Subcommittee had read it carefully. Then Ranking Member Mel Watt even entered the Lowery post into the committee’s record. David critiqued the CPP white paper and specifically called out this registration proposal.
When Representative DeSantis asked Professor Samuelson a direct question regarding registration based on the Lowery piece in Politico, I regret to say that the transcript reflects that she answered a different question, leaving many with the impression that David got it wrong (emphasis mine):
There was this article, I think it was in Politico, and it was a musician, he basically said that if some of what you were advocating was adopted that an individual could post a photo online, like a family photo that wasn’t registered [as defined in the white paper] and you could have a user just take that and use it for their commercial gain. Do you agree, is that true?
No I don’t believe that’s true at all.
Because one of the things we made very clear was that to the extent that someone is commercializing something that someone posts online that’s actually an activity that copyright law would apply to. I think that’s very clear from our report, especially the discussion about commercial harm.
Note that Professor Samuelson did not answer the question that was asked. Representative DeSantis, referring to the Lowery op-ed, correctly asked if a family photo was not registered as advocated by the CPP could that photo be exploited commercially by a “user”. (A “user” could include Google.)
Professor Samuelson’s response did not address the “registration issue” at all, merely that the commercial use of a family photo would be subject to the copyright law. Which, of course, would always be true. Or at least one would hope so.
David Lowery’s point was that if he failed to register a family photo under the registration regime contemplated by the CPP, his rights to stop even a commercial exploitation would be reduced under that regime. As it is burdensome to register family photos (if that would even be permitted under the CPP regime), it is more likely that such works would be exploited. (This relates to the CPP concepts of “commercial value” and the “commercially dead” as we will see.)
As I think can be demonstrated and that you will see in later installments of this post, David Lowery got it right.
I wish I could say that there was some special insight that Mr. Lowery brought to the issue, but frankly this registration “gotcha” that’s in the white paper has been around for quite some time, certainly since the 2008 attempt to orphan works. It’s kind of old news, so it’s surprising that the CPP is making another attempt to push it over the wall.
It was criticized in 2008 and has been criticized by a variety of creators on at least two continents (e.g., Stop43 in the UK). It was extensively criticized by Brad Holland of the Illustrators Partnership in his excellent article, “Trojan Horse: Orphan Works and the War on Authors“, serialized on David Lowery’s blog last year. It was criticized at the Small Business Administration’s Roundtable on Orphan Works in 2008. It has been criticized in the current orphan works inquiry at the U.S. Copyright Office.
And it will be criticized in this post although I claim to bring no special insight, either. The problems with reformalization are obvious and the result is easily anticipated–it is a system seemingly designed to create orphans, not to prevent them. And create them on a grand scale in the millions of works.
We have to assume that it was this harsh reality that Representative DeSantis wanted the IP Subcommittee to discuss with the disinfectant of sunlight.
[Welcome Senator Tillis to shining sunlight on the astroturf “Restatement of Copyright”, which in our view is a epitoma suprema of Silicon Valley shillery. The letter that Senator Tillis refers to is the December 3 letter his colleagues and he sent to the American Law Institute asking some questions about the proposed Restatement (which isn’t all that proposed anymore as the drafting is moving along briskly). I gather from Senator Tillis’s op ed that he hasn’t gotten a reply yet. Which must mean that the mumbletank in the Silicon Valley policy laundry hasn’t quite figured out how to reply. But here’s the question that no one seems to have asked yet: Who is paying for the Restatement of Copyright? I don’t mean which non-profit accountability blocker wrote the check, I mean who is the ultimate donor who is the source of donor directed funds?]
With millions of jobs and over a trillion dollars at stake, as lawmakers, we must ensure copyright laws continue to protect the livelihoods of our nation’s creators.
It is for this reason that we have sent a letter questioning the effort by a well-established legal organization to “restate” and reinterpret our copyright laws for the nation’s judicial system. Last time we checked, Article I of the Constitution specifically grants Congress the authority to make laws to allow for individuals in the creative industries to be fairly compensated – not law professors.
You might also be interested in these MTP posts from 2018:
And from 2013 about the Copyright Principles Project, the precursor of the Restatement of Copyright: