When Even The Librarians Are Against SOPA…

from the damn-pirates,-all-of-them dept

Supporters of SOPA keep trying to pretend that the only people who could possibly be against the bill are those who profit from infringement. That’s crazy. The concern here has nothing to do with infringement, but how SOPA is ridiculously overbroad, and will create massive problems and liability for activities that most people consider perfectly reasonable and legal. I’d love to see how the defenders of SOPA try to tar and feather the American Library Association, the Association of Research Libraries and the Association of College & Research Libraries who have written a letter warning about SOPA, with particular concern on the new “felony streaming” parts of the bill — the ones that backers don’t fully understand themselves.

The libraries highlight two key concerns. The first is how Section 201(c) of SOPA appears to significantly change the definition of “willful” infringement. As you may know, under current Copyright law, if you’re found guilty of “willful” infringement, statutory damages can rise from a maximum of $30k (for not willful) all the way up to a maximum of $150k. Plaintiffs in copyright lawsuits often claim every infringement is willful, but there are actual standards. SOPA appears to change the standard for willfulness in a massive way — such that a lot more infringement would be deemed willful. In fact, it would go all the way to the level of saying nearly every infringement was willful (with the exception of “innocent” infringement, which is almost never allowed by courts).

This rule of construction creates a negative implication that a person is a willful infringer if the person did not have a good faith reasonable basis in law for believing that his conduct was lawful. Thus, if a court finds that the person’s belief was unreasonable, the court might consider him a willful infringer, even if the person in good faith believed his actions were legal. Under current law, however, this level of intent constitutes ordinary infringement, not willful infringement. In other words, the rule of construction could have the effect of collapsing the three levels of intent into two: willful infringement and innocent infringement. The willful infringement level would swallow the ordinary infringement level, thereby significantly broadening the range of activities subject to criminal sanctions.

Next up, the libraries point out that SOPA, unlike S.978 (the Senate’s streaming bill), takes away the requirement that infringement be for commercial purposes to be declared criminal. For libraries, that’s clearly a scary change. The libraries fear that under SOPA, they’re hugely liable and at risk of being dragged into court:

In this environment, the criminal prosecution of a library for copyright infringement is no longer beyond the realm of possibility. For this reason, we strongly oppose the amendments described above, which would increase the exposure of libraries to prosecution. The broadening of the definition of willful infringement could result in a criminal prosecution if an Assistant U.S. Attorney believes that a library?s assertion of fair use or one of the Copyright Act?s other privileges is unreasonable. This risk is compounded with streaming, which SOPA would subject to felony penalties even if conducted without purpose of commercial advantage or private financial gain.

Those damn “pirate” libraries, huh?

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Comments on “When Even The Librarians Are Against SOPA…”

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83 Comments
Anonymous Coward says:

Their concerns are somewhat well founded, but mostly they are sort of playing chicken little here.

First and foremost, a libraries actions are almost always in good faith. Their only real risks for them under 201(c) is if they specifically do something that is not in good faith, or is willful. Libraries are generally not subject of copyright lawsuits or legal action, and generally would fall into the “good faith” parts of the law.

As for the streaming and public performance issues, their position is interesting, but tends to ignore the simple reality that they need to license in order to stream the same movie to multiple students at the same time. They shouldn’t be shocked by this, by their own admission there are already lawsuits pending in this area without SOPA even being considered.

Finally, there is the question of financial liablity. Under the old system, their “ordinary infringement” would have run them at least $750 per infringement. Under the new system, that could drop to as little as $200. It would seem on the surface that while the upside risk has increased, that the significantly lower risk at the bottom would be a benefit to them. This is double true considering that it is unlikely that the courts would impose huge judgements against a non-profit library.

Overall, their concerns are well presented, but as long as the libraries continue to operate in good faith, they have no additional risks, and perhaps even the benefit of lowered potential judgements against them.

Anonymous Coward says:

Re: Re: Re:

Yes. It comes to the same thing – if they aren’t licensing the content they choose to stream, they are at risk. They don’t appear to like that the potential risk has risen to the point where they might actually have to consider their actions BEFORE they take them, rather than after the fact.

Anonymous Coward says:

Re: Re: Re:2 Re:

Considering the legal action that is out there now against this practice, it would be very hard for them to claim that continuing to stream the movies without permission would be done in “good faith”. While they may feel that fair use is permitted here, I don’t think the can ignore the pending lawsuits and legal actions.

It would be something that would certainly need some attention.

The risk here I think is the old “slippery slope”. Basically, if they can stream the movies specifically as part of course work, what happens if a student not taking the course wants to see it? If they stream it to him or her, do they cross the line from providing course work (which may be fair use) to infringing distribution (which would not be fair use)? Having the abilty to do both creates the risk that an illegal act may happen, so could they in “good faith” operate the streaming servers, knowing that they content they are providing could be used illegally?

Anonymous Coward says:

Re: Re: Re:4 Re:

The change in the law isn’t aimed particularly at the librarians. Their legal position doesn’t really change all that much, and if anything tends to look better from a financial standpoint.

I would be guessing at this point, but I am not particularly surprised to find that the ARL is very active with EFF on issues. It would seem almost that this letter would be something prompted more by EFF trying to get partners to complain, rather than because of any grand concerns. ARL does seem to spend a very long time navel gazing on the fair use issue, I will admit.

It’s almost like astroturfing. I wonder if there was an actually vote taken to approve this letter, or if it was just sent by the admin of the ARL as normal business?

MrWilson says:

Re: Re: Re:5 Re:

I’m tired of hearing who is and who isn’t supposedly being targeted by this law.

The people who will use this law to their own benefit won’t care what the writers intended. If the law doesn’t specifically exempt those people who the writers do not intend to be targeted by the law, then the law can be used against just anyone.

The DMCA wasn’t necessarily intended to be used to curb free speech (although some might debate this point), but it has been used for that purpose.

Karl (profile) says:

Re: Re: Re:5 Re:

The change in the law isn’t aimed particularly at the librarians.

Indeed, but they’ll still be effected, negatively, by the bill. As will everyone else. That’s why the bill is so dreadful.

Their legal position doesn’t really change all that much, and if anything tends to look better from a financial standpoint.

It will be far easier – almost trivial – to show “willful” infringement under the law, which will mean any infringement whatsoever could face up to a $150,000 damage award. I fail to see how this “tends to look better from a financial standpoint.”

Especially since they would have no more of a possibility to argue innocent infringement than they do now. “Ordinary infringement” doesn’t become “innocent infringement” under the bill; if they’re paying $750 now, they’ll pay up to $150,000, not $250. I really have zero idea how you got this notion. If anything, it would be much harder to prove innocent infringement: when ordinary infringement is considered “willful,” even innocent infringement will be seen as “ordinary.”

Carlos Ovalle says:

Re: Re: Re:5 Re:

The people at ARL, ACRL, and ALA have written a great deal on copyright and fair use issues. Your characterization of “navel gazing” is dismissive and inappropriate, as is your implication that this was in any way prompted by EFF. Copyright and fair use have been major concerns of libraries and librarians for a long, long time.

Franklin G Ryzzo (profile) says:

Re: Re: Re:3 Re:

Allow me to ask another question…

“Having the abilty to do both creates the risk that an illegal act may happen, so could they in “good faith” operate the streaming servers, knowing that they content they are providing could be used illegally?”

Where is the greater good served?

It seems to me that it is their duty to continue to provide the services that facilitate education regardless of the inevitable fact that they could be abused. They are still acting in “good faith” that the purpose of the streaming is for educational uses and they should be absolved of any and all liability that could arise from the actions a few bad actors. Being that they even have to consider this alternative is greatly troubling and yet another reason that proposed legislation is poorly drafted.

As we have seen with the DMCA, the intentions of those that drafted the legislation is rarely, if ever, carried over to those that would enforce it.

Anonymous Coward says:

Re: Re: Re:4 Re:

The great good could be served by creating a system with tighter restrictions. Perhaps, as an example, the system will only allow the video to be streamed to students actually registered in the class, and only for a given period, example. That would limit the playback to what has been considered by some as fair use, which negating the chance of infringing uses.

“As we have seen with the DMCA, the intentions of those that drafted the legislation is rarely, if ever, carried over to those that would enforce it.”

Yup, DMCA wasn’t written with the intention of allowing websites to accept user submissions and to use safe harbor provisions to escape liablity on a wide scale. DMCA safe harbor created Youtube, because without it, Youtube would have died under the normal copyright laws.

Intentions and enforcement rarely match, because judges have to interpret the laws as well as the DoJ and other authorities.

Jay (profile) says:

Re: Re: Re:5 Re:

The great good could be served by creating a system with tighter restrictions.

Which serves nothing but allowing gatekeepers where there need not be gatekeepers.

Perhaps, as an example, the system will only allow the video to be streamed to students actually registered in the class, and only for a given period, example.

Congratulations, you’ve just said that Khan Academy is obsolete by allowing people to learn without being in a college course.

That would limit the playback to what has been considered by some as fair use, which negating the chance of infringing uses.

The better answer is more exceptions allows more freedoms, which allows more innovations.

DMCA safe harbor created Youtube, because without it, Youtube would have died under the normal copyright laws.

Thereby showing how erroneous Youtube, Twitter, Soundcloud, and other user submitted sites would not be around because of copyright laws.

Intentions and enforcement rarely match, because judges have to interpret the laws as well as the DoJ and other authorities.

Wrong. The DoJ isn’t there to interpret the laws, merely execute. And they’re stretching laws to make up new ones in being the copyright cops.

Anonymous Coward says:

Re: Re: Re:6 Re:

Jay, tighter restrictions doesn’t mean “adding gatekeepers”. Sorry,but that is just a scare tactic, and baloney.

“Congratulations, you’ve just said that Khan Academy is obsolete by allowing people to learn without being in a college course.”

Are you daft? I didn’t say anything like that. I was speaking of the specific case of a school library streaming a movie to students as part of a course. If the fair use comes only for actual students of the class, having the system setup to limit access to only students registered for that class in that school would be perhaps a proper way to retain the fair use.

Khan Academy has the rights to their videos and can choose what they want to do with them. They would only be in trouble if they choose to stream movies to just anyone without permission. Nice way to try to ignore the point there buddy, but you fail!

“The better answer is more exceptions allows more freedoms, which allows more innovations.”

Put down the koolaid. Talk about mumbled bullshit. In the narrow case of school libraries, which is what we are talking about, and preservation of “fair use” for their students, keeping control over who can and cannot see a streaming movie as part of their course work is the best option.

There is no question of “innovation” here. Once again, thanks for either missing the point or trying hard to hijack the discussion. You failed at both.

“Thereby showing how erroneous Youtube, Twitter, Soundcloud, and other user submitted sites would not be around because of copyright laws.”

Not true. Twitter? Huh? 140 characters, have a nice day? Where is the copyright issue here? Youtube? It possibly wouldn’t exist because it would not have gotten the initial boost of having all that copyright material on it, so it might never have “gone viral”.

There is no question that user submitted sites would be different. It wouldn’t say that they don’t exist, but clearly the free for all mentality would be gone.

“Wrong. The DoJ isn’t there to interpret the laws, merely execute. And they’re stretching laws to make up new ones in being the copyright cops.”

Wrong again. The DoJ, when a law is going to go into effect, publishes in the Gazette details of the law, and the implications of the law, as well as the areas they will look at for enforcement, or their expections of what is likely to be acceptable and what it not. If the DoJ interprets a law to say “this is legal”, they are unlikely to take action against someone doing it, even if later it is proven to be illegal. Interpretation is always there, like it or not.

You know, it’s the real world versus the fantasy land that gets chatted about here.

So nice try, but you seem to have failed up and down the line.

Jay (profile) says:

Re: Re: Re:7 Re:

Jay, tighter restrictions doesn’t mean “adding gatekeepers”.

Tighter restrictions that are criminalizing technology equates to using a government mandate to install a middleman. The UFC did this in criminalizing Bryan McCarthy for linking as well as trying to fight Justin.tv for what users are streaming. That is “adding gatekeepers”.

I was speaking of the specific case of a school library streaming a movie to students as part of a course. If the fair use comes only for actual students of the class, having the system setup to limit access to only students registered for that class in that school would be perhaps a proper way to retain the fair use.

By not allowing outside knowledge or outside commentary, you’re arguing against supplemental knowledge. KA allows people to learn outside of a college course at their own pace. What you’re stating is that people should either learn inside a school course or outside without any emergent use of both techniques. Ironically, KA started for a specific set of students but others learned from stumbling on the bullcleo account. And you want to take away this option…

In the narrow case of school libraries, which is what we are talking about, and preservation of “fair use” for their students, keeping control over who can and cannot see a streaming movie as part of their course work is the best option.

Which makes no sense if the streamed movie is on Youtube for all to see. Funny, you keep talking about control. Yet, you don’t explain why there now needs to be control of a product. The point is either to allow people to see a product or not. Make up your mind. Oh, and since you’re sure to dismiss the exceptions to copyright: Fair use drives a large part of the US economy. But I’m sure you know that since you have so much faith in copyright. So you’ve failed at making your points.

Where is the copyright issue here?

Ever heard of linking? Twitter allows links so it’s at risk of having to change what it does.

It wouldn’t say that they don’t exist, but clearly the free for all mentality would be gone.

The only one that has that mentality seems to be you. Everyone uses it for their needs and purposes. All you continue to meme about is how it’s this pirate haven. No matter how much someone tells you and SHOWS you otherwise, here you go into another pirate rant for the abstract purpose of saying “but… But… Piracy”. It’s rather annoying.

Interpretation is always there, like it or not.

Try that paragraph again, but this time stop rambling. ICE went out of its way to criminalize the seizures and they wouldn’t be backtracking on so many fronts. You admit that they’re Disney’s cops and the fact remains their interpretations stretch the limits of what’s allowed under the law. Merely talking to one side of a civil suit, practicing prior restraint on websites, and showing the corruption in our system isn’t helping our economy grow.

nasch (profile) says:

Re: Re: Re:5 Re:

Yup, DMCA wasn’t written with the intention of allowing websites to accept user submissions and to use safe harbor provisions to escape liablity on a wide scale.

Wait, what? Of course it was. That is exactly the purpose of the safe harbors, if by “escape liability” you mean “avoid being held liable for someone else’s actions”.

weneedhelp (profile) says:

Re: Re: Re: Re:

Bob I think you spelled that backwards. The whole snowflake thing has been discussed long ago. And it could possibly be that he is 2 ppl posting from the same ip, say… they are paid shills working out of the same office, but I stand firm on my first assumption.

And that’s assuming that you assume an ip = a particular person… i assume. Got it? 🙂

out_of_the_blue says:

Librarians still use /books/! They even have "horse and buggy" books!

Who cares what those old relics have to say?

Boy, you’re really on a tear of late with SOPA — or rather, what you /conjecture/ will be its effects.

“… the criminal prosecution of a library for copyright infringement is no longer beyond the realm of possibility.” — HAS IT BEEN? Now, that’s news. Libraries that I know are persnickety to excess, even having posters up by copy machines on fair use and copyright. So I don’t think was ever NOT a concern.

I’ll bet that no library ever faces prosecution for infringement simply because they’ll stay well clear of obvious dangers.

More you rant about /possible/ dangers, more you’ll be ignored on /actual/ dangers. — But you do well at ignoring present dangers, as in the just previous piece: you’re not at all concerned about Google tracking anyone, just dismiss that as a concern for “tinfoil” types.

Anonymous Coward says:

Re: Librarians still use /books/! They even have "horse and buggy" books!

I’ll bet that no library ever faces prosecution for infringement simply because they’ll stay well clear of obvious dangers.

I’ll bet the real reason is that it’d be a PR nightmare to sue a community library. You might as well go after an elementary school for publicly reading books out loud to kids.

nasch (profile) says:

Re: Re: Librarians still use /books/! They even have "horse and buggy" books!

You might as well go after an elementary school for publicly reading books out loud to kids.

Well, they’ve gone after the Girl Scouts for singing songs around a campfire:

http://www.legalaffairs.org/issues/July-August-2003/feature_zittrain_julaug03.msp

(search for “girl scouts”)

Maybe they’ve learned their lesson from that one.

Anonymous Coward says:

Re: Re: Librarians still use /books/! They even have "horse and buggy" books!

Nice try, but fail.

What sort of “not so obvious” danger are you looking at? A library is a store house of books, magazines, etc. They lend them out. One customer per item. Where are the risks?

If they want to stream video, example, to multiple workstations, would they not require a license for each streamed instance? Remember, if they cannot legally photocopy books and lend them out, why should they be allowed to create multiple copies of the same movie, example?

There is little that a library does right now that is risky, and any push to use new technology or to change their mandate should always be looked at from a risk standpoint.

I don’t see any chilling effects here.

Anonymous Coward says:

Re: Re: Re: Librarians still use /books/! They even have "horse and buggy" books!

There is little that a library does right now that is risky

My city library’s A/V section plays background music from their CD collection.

Occasionally they host classes where I’ve seen experts show clips from old and new movies to demonstrate film making techniques.

They have story time where skits/puppet-shows derived from books are performed.

I don’t know. Maybe they get licenses for some of these things. Maybe they are playing it a bit risky by delving into the dark realm of fair use.

Anonymous Coward says:

Re: Re: Re: Librarians still use /books/! They even have "horse and buggy" books!

Then you’ve obviously never moved past the checkout a book part of a libraries goal.

I’m a library clerk who manages delivery of copied articles to professors at a university. We have an official policy that has no basis in law, simply because we cannot afford the fines were someone to take us to court. Two articles can be copied out of an issue of a journal per year by us. No exceptions. If someone else has already copied two articles out of the issue, then you’re shiat out of luck.
Under our policies, you can’t copy something out of that issue. If the journal is compiled yearly, you’re even more screwed. When there’s no issue, we go by the journal. Two articles copied per year per issue for an entire academic university. This is all to avoid going to court, and what we reasonably think is fair use. Expect the service to go away entirely should this pass.

Remember, these are articles that the library has spent north of a million dollars in subscriptions per year, just so we can have the dead tree version. I shudder to think what the costs of the electronic access is. The library is not a pirate.

Oh, and if we don’t have the article in our holdings and we ILL it out, same restrictions go. So if you need that article for your cancer research and somebody has already gotten to the limit? Be prepared to shell out the 35-60 bucks for a few pages.

So when you say there are no chilling effects? My experience says that you’re full of shit.

Makes me proud to even be associated with a library to see this.

Franklin G Ryzzo (profile) says:

Re: Re: Re:2 Librarians still use /books/! They even have "horse and buggy" books!

Thank you for the insight. It is a sad day indeed when a library must restrict the use of its materials for fear of a lawsuit. If your library is doing this now prior to the new legislation being passed, I can only imagine what steps they would take in the future, or what additional libraries would follow suit and hamper access and fair use.

Anonymous Coward says:

Re: Librarians still use /books/! They even have "horse and buggy" books!

Who cares what those old relics have to say?

With that you lost all respect that was left in this community towards you. You’ve downgraded yourself to some braindead troll.

Now, who cares what the MAFIAA [old relics] have to say? Amazing how things tend to be double-edged, little troll.

Anonymous Coward says:

Libraries should be very afraid, we know for a fact that the DMCA is abused already, we know that publishers don’t like libraries, we know labels and studios are not paragons of honesty and moral conduct.

If they can sue mothers, children, students or anything dead or alive without caring, libraries would be targets eventually and those a-holes cheering for the law will just change the song to “you see the law says we can and so we will”.

That is why every citizen should not pay them a dime ever, find alternatives if you can, but if you can’t don’t be afraid to just take it and brag loudly about it, those people want to harm countries is time to harm them back with extreme prejudice.

Michael says:

Disgusting conduct

In pushing these draconian pieces of legislation through, the public is slowly but surely being incriminated simply by ownership of any product which contains “intellectual property.” It’s not good enough that corporations distribute products and make a profit in a competitive market, lest the need to maintain things like quality control, innovation and competitive advantages. No, they want to control where, when and how their products may be used at all times by all people. Moreover, they want the authority to regulate the internet, stifle competition and trample people’s rights. Put simply, a corporate-facist power grab.

Anonymous Coward says:

Re: Re:

Hey AC, can you point out where the ‘increased sales’ are going to come from in the SOPA act?

*crickets*

1. Cause competing businesses to go bankrupt (no payments and no mareketing = no business for most small businesses)
2. …. (leer lewdly at potential customers)
3. Profit from re-selling ‘customers’ the same product in a new format from your ‘propped up monopoly’…

Did I miss a step?

Michael says:

Re: Re: Re:

Dead-on post.

I can’t comment too much about the movie industry as I’m not an avid follower of what’s going on in that trash dump called Hollywood, but I can comment on the decline of the music industry. The reason why major label music sales are in a slump is simply because the new “music” flat-out sucks and hence less consumer interest. As well, there’s less shelf space available across the country, what with record stores closing and some stores’ shelf space shrinking to make room for products which actually sell. People with a good set of ears and functional mental faculties know how to differentiate between crud like Lady Gaga and quality like The Beatles. People want great songwriting, not an image masquerading as music. Too bad for the major labels that artists are much more privy to the ponzi scheme that is a major record contract. That’s a major reason why they’re lobbying so strongly as of late — they want to strangulate the internet so that they can monopolize its content.

Karl (profile) says:

Re: Re:

Hey Masnick. Can you point out where monetary damages are recoverable under the STOP Act?

*crickets*

Hey, A.C. Can you point out where Masnick ever said monetary damages are recoverable under SOPA?

*crickets*

What the library associations (not Mike) point out is that under the new bill, the standard for “willfullness” will expand to cover pretty much all infringement, instead of (as is currently law) concrete knowledge that their activity was infringing.

This would mean that every infringement, no matter how minor, will carry up to a $150,000 price tag. So, though damages are not directly addressed in the bill itself, the bill would make damage awards far worse than they are now.

And, of course, by redefining “willful” in this way, it opens the door to criminal prosecution for even minor infringements. Meaning that if anyone working at a library committed an infringement, and simply lacked a proactive belief that they were authorized to do so, they could go to jail, the library could have its assets seized, etc.

bemused (profile) says:

overview

Well, it’s true that some groups oppose this bill, even a few that don’t profit from P2P. You might tamper your glee with the knowledge that this bill is also supported by hundreds of other far more powerful groups, the Obama Admin. the Sec of State, all law enforcement agencies, all copyright advocacy groups, songwriters, musicians, I could go on for pages.
The bill will pass, (it already passed unanimously in the Senate Judiciary) because all of these points have been made in the halls of Congress for the past decade and they don’t hold up to scrutiny. The only time that arguments based purely on ideology hold sway in DC is if they are partisan. This bill is non partisan. You will lose on the lack of merits of your logic.

bemused says:

Re: Re: overview

Thanks for the spell check. It’s a heavy lift to explain to Congress why protecting a right enshrined in the Constitution is a bad idea, why protecting our #1 balance of trade export, intellectual property, doesn’t make sense, why infringing Russian web sites are to be held sacrosanct. The Lords of Silicon Valley have are giving it their best, unleashing an army of lobbyists and a tsunami of cash to defeat or gut this bill. They don’t want anyone to derail the party train. However, by their ridiculous railing about ‘breaking the Internet’ and hollow howling that the sky is falling every time anyone attempts to stop infringement, they have greatly reduced their credibility.

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