Senator Tillis Angry At The Internet Archive For Helping People Read During A Pandemic; Archive Explains Why That's Wrong

from the that's-not-how-any-of-this-works dept

A few weeks ago, we wrote about the misguided freakout by (mainly) publishers and some authors over the Internet Archive's decision to launch the National Emergency Library during the COVID-19 pandemic, to help all of us who are stuck at home be able to digitally access books that remain in locked libraries around the country. A key point I made in that post: most (not all, but most) of the criticisms applied to the NEL project could equally apply to regular libraries. And perhaps that's why hundreds of libraries have come out in support of the project, even as those attacking the project insist that it's not an attack on libraries.

Either way, it was only a matter of time before publishers got their lapdogs in Congress to start making noise, and first out of the gate was Senator Thom Tillis, who is already deep into his attempt to make copyright law worse, and who last week sent a letter to the Internet Archive's Brewster Kahle that reads very much like it was written by book publishers. First it gets high and mighty about how the pandemic has "shown the critical value of copyrighted works to the public interest" which is just a weird way to phrase things. The fact that something valuable is covered by copyright does not automatically mean that copyright is helpful or valuable for that situation. Then it gets to the point:

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.

A few days later, Kahle responded in a detailed and thorough letter to Tillis. It points out that the Internet Archive is well-established and recognized by the state of California as a library, and that it has already shown that it has a legal right to digitize books. And then goes on to explain that the point of the NEL is to help enable Tillis' own constituents to access to the books that their tax dollars paid for while they're locked up collecting dust inside libraries that are closed during the pandemic.

The National Emergency Library was developed to address a temporary and significant need in our communities — for the first time in our nation’s history, the entire physical library system is offline and unavailable. Your constituents have paid for millions of books they currently cannot access. According to National Public Library survey data from 2018-2019, North Carolina’s public libraries house more than fifteen million print book volumes in three-hundred twenty-three branches across the State. Because those branches are now closed and their books are unavailable, the massive public investment paid for by tax-paying citizens is unavailable to the very people who funded it. This also goes for public school libraries and academic libraries at community colleges, public colleges and universities as well. The National Emergency Library was envisioned to meet this challenge of providing digital access to print materials, helping teachers, students and communities gain access to books while their schools and libraries are closed.

It also highlights something else that many had missed: the NEL does not include any books published within the last five years -- which is pretty important, since the commercial value of a book usually exists in the first couple years after publishing. Indeed, a recent study highlighted how the vast, vast, vast majority of sales tends to come soon after a book is published and then sales decline rapidly. So the argument that the NEL is somehow taking away from author income is already somewhat questionable.

And, indeed, the Archive is currently seeing evidence that suggests the NEL is not actually impacting author earnings in any significant way:

In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.

The Internet Archive has also been highlighting case studies of teachers and students helped out by the NEL.

Kahle also explains to Tillis how he's wrong to say that copyright law does not allow this kind of lending. It's called fair use.

You raise the question of how this comports with copyright law. Fortunately, we do not need an “emergency copyright act” because the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances. As a result, libraries can and are meeting the needs of their patrons during this crisis in a variety of ways. 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.

The reference regarding the Authors Guild being wrong about fair use refers to its years-long fight to stop libraries from digitizing books, which resulted in a massive loss for the Guild's ridiculous interpretation of copyright and fair use.

In the end there are a bunch of important points here: even if Tillis is right that copyright is somehow proving its value in a pandemic (and he's not), that doesn't change the simple fact that this library is enabling people who cannot check out physical books from their locked community libraries to at least be able to access those books while remaining safe at home. The Internet Archive has legal scans of these books, and hundreds of libraries are supporting this effort. While it's true, as some authors and publishers highlight, that there are official ebooks for some books, many (especially older) books do not have them at all -- and those include lots of books that are commonly read in classrooms. And, as we pointed out last time, in cases where there are official ebooks, almost anyone would prefer to get those copies, because they are much easier to read and designed to be read on a reading device (specialized reading device, tablet, or phone) as compared to the NEL scans, which are straight scans of the book pages.

No matter what, it's a really bad look for Tillis to stomp around complaining that his constituents might actually be able to read books that are currently locked up in libraries. Remember that the entire intent of copyright law in the first place, and the subtitle of the US's very first copyright law, was that it be to enable learning. The Internet Archive is trying to help push forward that clear goal of copyright law... while Senator Tillis seems to want to stop it.

In the end, there's very little "there" there to the complaints about this project. It's difficult to see how it's harming author revenue in any real way, but it is clearly helping schools and students while the libraries and books they normally use are unavailable. And, there are strong arguments for why this is perfectly legal under copyright law -- and if the claim is that we should wait until that's absolutely proven in court, well, that kinda misses the whole point of helping out during a pandemic.

As professor Brian Frye recently wrote about all of this: "When you find yourself complaining about libraries, you might want to think twice about your priorities." And I'd say that counts double in the midst of a pandemic.

Filed Under: brewster kahle, copyright, covid-19, fair use, libraries, national emergency library, pandemic, thom tillis
Companies: authors guild, internet archive


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  • icon
    Samuel Abram (profile), 14 Apr 2020 @ 11:43am

    Tillis' actual constituency

    Senator Thom Tillis is only serving his constituents. And by "constituents", I mean "campaign contributors".

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 14 Apr 2020 @ 12:21pm

    You do realize you could have stopped the headline after the first six words, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Heather M, 14 Apr 2020 @ 12:21pm

    Libraries and copyright issues.

    I think I commented when the Archive first went live with the Pandemic library, as a librarian I applaud the Library, it gives people access to collections that are as you say, locked away. Not having access to our collections is just as upsetting to us. The library exists for the people, its not a shrine for books. Getting books to the people however we can should be the goal of any librarian and the Archive is doing that. They ought to be applauded instead of distracted from their work by some petty little man who apparently wouldn't know a book or common sense if he was struck by them.And honestly if I could I would like to test that out.

    reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 14 Apr 2020 @ 12:25pm

      Re: Libraries and copyright issues.

      We appreciate having librarians like you here, Heather! What's unfortunate is that Thom Tillis is no mere "petty little man"; he is a United States Senator representing North Carolina (actually his campaign contributors, but that's neither here nor there). In any event, I'm really happy that there are people like you here who recognize that copyright is–as is said in the US constitution–intended to "promote the progress of useful science and arts".

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Apr 2020 @ 12:40pm

      Re: Libraries and copyright issues.

      it gives people access to collections that are as you say, locked away.

      Unfortunately, my understanding is that they're still locked away in that they require people to install DRM on their computers. I imagine archive.org feels the law forces them into that, but there's a big problem with any law that forces people to support malware.

      reply to this | link to this | view in chronology ]

      • icon
        Samuel Abram (profile), 14 Apr 2020 @ 12:55pm

        Re: Re: Libraries and copyright issues.

        Then again, without the DRM, they're copying the books instead of borrowing them. While I agree with you that DRM for purchases is unnecessary, harmful, and unhelpful, for loans and rentals I see them as a necessary evil.

        reply to this | link to this | view in chronology ]

        • icon
          Cdaragorn (profile), 14 Apr 2020 @ 1:34pm

          Re: Re: Re: Libraries and copyright issues.

          There's nothing unfortunate there, you're just pretending there's a difference that doesn't actually exist.
          They're copying them either way. The DRM doesn't change that at all. It just attempts to force them to get rid of the copy they made at some date.
          Fair use does not require this. In fact it's explicitly contrary to what fair use, and thus Copyright law, allows and encourages. They are allowed to make a copy for the purposes they are doing it for in this case. Adding DRM to that is just showing a personal paranoia and unwillingness to accept the terms the law set down.

          It's beyond stupid and completely unnecessary.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 Apr 2020 @ 2:18pm

            Re: Re: Re: Re: Libraries and copyright issues.

            And after defending the lack of DRM...

            ...it's telling that Archive.org still has rudimentary DRM in place for this collection. The only thing it has changed is how many have the right to view the contents at the same time (from one to infinite). The colleciton still requires you to check out the book for a limited time, and prevents easy copying or duplicating of the work.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 14 Apr 2020 @ 7:48pm

              Re: Re: Re: Re: Re: Libraries and copyright issues.

              Yeah, and they're not the only library pushing DRM. Pretty much all of them do it. If everyone is misinterpreting the law in the same way, maybe it really is the law's fault.

              reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 18 Apr 2020 @ 9:08am

            Re: Re: Re: Re: Libraries and copyright issues.

            You're saying it would be legal for the Internet Archive to give an unlimited number of people permanent copies of books without permission from the copyright holder? That sounds like it would stretch fair use to the breaking point.

            reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 21 Apr 2020 @ 12:48am

          Re: Re: Re: Libraries and copyright issues.

          "Then again, without the DRM, they're copying the books instead of borrowing them."

          They are doing that anyway. That's how a "download" works. Even just looking at a webpage means you copied the contents of said page to your computer - where your browser then displays that copy in a legible format.

          I wish people finally realized that everytime you partake of information, a copy is made.

          "...for loans and rentals I see them as a necessary evil."

          An unnecessary one, you mean. Physical items you can loan, borrow, shift from one place to another. Information in itself can not be moved. Making a copy in the new location is as good as it gets.

          DRM is outright malware meant to remove control over a computer or electronic device from the owner just to artificially create the illusion that information is a physical item.

          It's only necessary if you start by assuming that information in your possession means someone else now owns part of your property and memory.

          Lending and leasing mere data is as fundamentally nonsensical as trying to lend or lease tap water. You don't expect to get it back once it's been drunk.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Apr 2020 @ 12:39pm

    Republican senators gonna republican.

    reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 14 Apr 2020 @ 1:18pm

      Re:

      To be fair, I could easily see a Democratic senator not named Ron Wyden do exactly the same thing as Thom Tillis is doing here.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 21 Apr 2020 @ 1:15am

        Re: Re:

        "I could easily see a Democratic senator not named Ron Wyden do exactly the same thing as Thom Tillis is doing here."

        Historically democrats have been intimately embedded with the copyright cult far more than republicans so it's rather a bit odd that a republican even cares.

        I mean, sure, information control is on the republican bucket list, and copyright is part of that...but it's not high on that list compared to religion-inspired bigotry, making sure the non-whites stay in line, and getting the women back in the kitchen.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 May 2020 @ 10:01am

          Re: Re: Re:

          Not for nothing, Scary, but … do you understand the concept behind "Know Your Enemy"? If you don't understand your opponent's motives, strategy, goals, etc., you'll never beat him.

          If you truly think those things from ~60 years ago are on the Republican 'bucket list', you will continue to lose.

          Completely unironically, the fact that you and millions of others in the USA think that way is why President Trump won in 2016, and will again in 2020.

          (Maybe you were being hyperbolic to make a political point and aren't really as confused as you pretend to be … in which case, you're still making a tactical error that helps Trump's side more than it hurts 'em.)

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Apr 2020 @ 3:01pm

      Re:

      They hate us for our freedoms. It's high time we remembered what we're supposed to do to those who want to kill our great nation.

      reply to this | link to this | view in chronology ]

      • icon
        Cdaragorn (profile), 16 Apr 2020 @ 7:11am

        Re: Re:

        You're supposed to use the liberties you've been given and still very much have to vote them out of office. The drastic measures you're implying are not legitimate for where we are today.
        Much of the problem is not with the politicians but rather with so much of the populace no longer valuing these freedoms and choosing not to care what they're politicians are doing.
        You can't solve the problem by jumping to the nuclear option when there are far simpler explanations for the problems.

        reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 20 Apr 2020 @ 8:23am

          Re: Re: Re:

          Largely true, at least regarding local governments, governors, senators (like Tillis), and the POTUS, but not entirely the case where districting is a factor, such as federal or state House Representatives and some or all state senators, since gerrymandering has made it more difficult to get people of certain parties into certain positions. Still, even there, there are at least some solutions that don’t involve the nuclear option.

          reply to this | link to this | view in chronology ]

  • icon
    virusdetected (profile), 14 Apr 2020 @ 12:46pm

    Maybe Sen. Tillis' constituents don't know how to read...

    Or he doesn't want them to, because then they might understand that he doesn't represent the voters.

    "Lapdog in Congress" is redundant. Since Citizen's United, they've all (almost all) become lapdogs to one or more special interests.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 14 Apr 2020 @ 1:34pm

      Re: Maybe Sen. Tillis' constituents don't know how to read...

      FFS, spare me on the "everyone in Congress is the same" crap. There are good people in Congress and there are bad people in Congress.

      There are deep and serious problems with money in politics, and they go deeper than partisan divisions. But this tedious bullshit about how everyone in Congress is alike is both wrong and lazy.

      Maybe you're the one who should be reading up on your representation in Congress and their specific strengths and weaknesses. There is, after all, an election in November, and you've probably got a House seat and possibly a Senate seat to vote for. To say nothing of down-ballot offices.

      But actually familiarizing yourself with who's sitting and who's running and who's taking money from where is a lot more work than painting 535 people with the same broad brush.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 21 Apr 2020 @ 1:33am

        Re: Re: Maybe Sen. Tillis' constituents don't know how to read..

        "FFS, spare me on the "everyone in Congress is the same" crap. There are good people in Congress and there are bad people in Congress."

        Here's the problem. If you want to be in politics you need to play the game. The bad people enjoy doing it. The good people either do the exact same or stop being relevant.

        So where's the difference, when the "good" congressman/woman has to "compromise" away anything that would make things better just to stay in power for long enough to finally, after many years, accomplish something which will, in the end, make as little difference as changing the official stationery?

        In a direct democracy this would change the very minute the citizenry became invested in their national politics. In the US republic, with all the institutional dilution of voter power, it means the system won't change until a vast majority of the citizenry persistently drums the bad apples out of office - for long enough to ensure not only that the bad apples in congress and senate are all sacked, but until the various government institutions are no longer subject to regulatory capture.

        "But this tedious bullshit about how everyone in Congress is alike is both wrong and lazy."

        For all intents and purposes that is how it is though. Every now and then you get a firebrand like Bernie Sanders, but the primary requirement to get anything done in US politics is to know how to scratch someone's back.

        "But actually familiarizing yourself with who's sitting and who's running and who's taking money from where is a lot more work than painting 535 people with the same broad brush."

        You're not wrong. But it's also true that until about 90% of the US citizenry takes the time to do that investigative work and spend time in critical thought about who they want to represent them, all those 535 people might as well be painted with the same brush when looking at what they actually accomplish.

        In many european countries it would be close to unthinkable to have an election draw less than 80% of the voters with some places, like Sweden, taking that low a participation as a sign of critical damage to the democratic process.

        In the US a 60% participation is considered "high". That's, frankly speaking, un-fscking-believable. And makes the extremist stance of certain present and past administrations less surprising.

        reply to this | link to this | view in chronology ]

  • icon
    sparkydoc (profile), 14 Apr 2020 @ 1:01pm

    Libraries and copyright

    There are several authors whose books I buy that I discovered by reading one for free from the library. Had I not tried and enjoyed their work, I would never have taken a chance on a purchase.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Apr 2020 @ 1:41pm

    There are numerous authors whose books I've read without paying them a penny.

    Some of them were wearing shrouds without pockets, and couldn't hold the money they were being paid.

    Some of them were all right with that, because they wrote the books to promote ideals that were important to them.

    Some of them were represented in libraries. (Am I the only person who considers libraries an essential service. Why is it necessary to buy booze to drink alone, but not to check out books to read alone?)

    Some of them had sold copies to friends or family. (We share books, you see. It's a moral imperative in our culture.)

    And some of them ... well, I bought newly-printed copies of books; the publishers simply pocketed the money and gave out false income statements to the authors. (This is apparently standard practice in the entertainment industry.)

    Senators have no control over the first four cases. But senators who are genuinely interested in doing something for authors might want to look seriously at that last case.

    reply to this | link to this | view in chronology ]

    • icon
      urza9814 (profile), 14 Apr 2020 @ 5:34pm

      Re:

      "Why is it necessary to buy booze to drink alone, but not to check out books to read alone?"

      Because book withdrawal isn't going to kill anyone. Now is not the time to be putting people in the hospital for other reasons. The alcoholics can detox later.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 18 Apr 2020 @ 9:15am

        Re: Re:

        That takes a huge amount of alcohol though.

        If you [are an average size man and you] drink 13 [drinks] a day for a month then you have about a fifty-fifty chance of having major life threatening withdrawals.

        https://hams.cc/odds/

        reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 20 Apr 2020 @ 8:30am

          Re: Re: Re:

          Key part there is “average-sized man”. If you are on the smaller side and/or are female, those can reduce the minimum drinks needed to get to the fifty-fifty chance of having major, life-threatening withdrawals. And there are other factors involved that could further raise or lower the threshold.

          Though, it should be noted that for such people, the threshold for dying from drinking too much alcohol too quickly is also lowered, so they would be less likely to survive long enough to get to major withdrawal to begin with.

          reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 20 Apr 2020 @ 9:02am

            Re: Re: Re: Re:

            If you are on the smaller side and/or are female, those can reduce the minimum drinks needed to get to the fifty-fifty chance of having major, life-threatening withdrawals.

            Yes, but not that much. An average sized woman still has to have 11 drinks a day for a month for that fifty-fifty chance. I don't have numbers by body weight, but even a small woman still has to drink pretty heavily to go through any significant withdrawal at all, let alone life threatening withdrawal.

            reply to this | link to this | view in chronology ]

            • icon
              bhull242 (profile), 20 Apr 2020 @ 10:23am

              Re: Re: Re: Re: Re:

              True. I forgot to mention that. Even a relatively thin female dwarf would have to drink fairly heavily for extended periods of time to reach a level of addiction where they’d go through significant withdrawal if they stop cold turkey, and such a woman would be particularly susceptible to death by alcohol poisoning anyways, making it rather unlikely that she would ever reach the severe withdrawal.

              And while I haven’t looked it up, I think I vaguely recall that the more immediate adverse effects of alcohol consumption (drunkenness, blackouts, passing out, blurred vision, altered perception, loss of balance/muscle control, death from alcohol poisoning, hangovers, etc.) scale more with factors like gender or body weight than severity of withdrawal.

              Still, I should have mentioned that. Thanks for pointing that out!

              reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 18 Apr 2020 @ 9:16am

        Re: Re:

        Oh and forgot to mention it has to be consecutive days. If you drink every other day, even heavily, apparently you will not go through withdrawal. I hope this represents a tiny number of people.

        reply to this | link to this | view in chronology ]

      • icon
        bhull242 (profile), 20 Apr 2020 @ 8:52am

        Re: Re:

        I don’t believe that’s quite the reason, partly for reasons outlined by nasch, partly because other drugs capable of causing life-threatening withdrawal aren’t also considered “essential”, and partly because there are other ways to mitigate withdrawal. Instead, I think it’s because of something unique about alcohol compared to other drugs.

        You see, as far as I can tell, caffeine and alcohol are the only drugs that one takes by drinking a beverage containing them that are also present in drinkable beverages naturally (rather than being there naturally). At least, they’re the only legal drugs that don’t require a prescription that can be taken that way. Every other drug (legal, controlled, or illegal) gets smoked, snorted, inhaled, stuck on the user’s skin, chewed and spit out, injected, or taken in the form of a pill or tablet that either gets dissolved in the mouth or a beverage that gets consumed or gets swallowed directly.

        Now, all foods and beverages—regardless of nutritional value (or lack thereof), benefits or detriments to human health, or ingredients—that haven’t been explicitly banned for reasons other than the pandemic by, say, the FDA or health inspectors or something are considered “essential goods” as far as the stay-at-home orders are concerned. There isn’t really an exception made for alcoholic beverages. Humans need to drink something to live, and as unhealthy as they can be, alcoholic beverages are technically capable of quenching one’s thirst. In that sense, it’s just like caffeinated beverages; whether or not the food or beverage happens to contain alcohol is immaterial to whether or not it is considered “essential”.

        It’s also like how candy, snacks, cookies, pastries, ice cream, sherbet, popsicles, and other clearly unhealthy foods are considered “essential”; they are foods, therefore they are essential and are exempt. There is no individual weighing of which specific foods or beverages are deemed “essential”; they all get lumped together for this purpose.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 20 Apr 2020 @ 9:05am

          Re: Re: Re:

          I think they're kept open because officials know if they shut down the liquor stores there will have to be 24/7 security to keep people from breaking in. Might as well just let people go there and try to maintain distancing.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Apr 2020 @ 2:59pm

    Eliminate politicians that try these things.
    Anytime it doesn't work, they try, try and try again. Slightly different wording, slipping it into some other 500 page budget omnibus, ramming it through when nobody's looking or while they have a full majority, or even splitting up the individual parts into more reasonable-looking individual bills that form combination trap laws.

    Anytime they're told "no" all it does is slightly slow them down, or force them to work their brains a little more. Whether healthcare or literacy, telling them "no" does nothing to repair irrevocable damage they cause with every one of even their smallest victories. Thom Tillis is an enemy of democracy, actively attacking the American people. He does not belong here.

    reply to this | link to this | view in chronology ]

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  • identicon
    Anonymous Coward, 15 Apr 2020 @ 6:36pm

    Ok boomer

    Syphilis needs to join an archive with as long as he’s been in.

    reply to this | link to this | view in chronology ]

  • identicon
    Naughty Autie, 16 Apr 2020 @ 12:01pm

    Now watching for Tillis getting his panties in a bunch when he realises that If I weren't paying attention to the rules, I could download illegal books here in the UK from Project Gutenberg.

    reply to this | link to this | view in chronology ]


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