Last week we covered how the government successfully convinced Judge Colleen McMahon to order the plaintiffs in the DOGE/National Endowment for the Humanities (NEH) lawsuit to “claw back” the viral deposition videos they had posted to YouTube — videos showing DOGE operatives Justin Fox and Nate Cavanaugh stumbling through questions about how they used ChatGPT to decide which humanities grants to kill, and struggling mightily to define “DEI” despite it apparently being the entire basis for their work.
The government’s argument was that the videos had led to harassment and death threats against Fox and Cavanaugh — the same two who had no problem obliterating hundreds of millions in already approved grants with a simplistic ChatGPT prompt, but apparently couldn’t handle the public seeing them struggle to explain themselves under oath. The government argued the videos needed to come down. The judge initially agreed and ordered the plaintiffs to pull them. As we noted at the time, archivists had already uploaded copies to the Internet Archive and distributed them as torrents, because that’s how the internet works.
The ruling is worth reading in full, because McMahon manages to be critical of both sides while ultimately landing firmly against the government’s attempt to suppress the videos. She spends a good chunk of the opinion scolding the plaintiffs for what she clearly views as a procedural end-run — they sent the full deposition videos to chambers on a thumb drive without ever filing them on the docket or seeking permission to do so, which she sees as a transparent attempt to manufacture a “judicial documents” argument that would give the videos a presumption of public access.
McMahon doesn’t buy it:
When deciding a motion for summary judgment, the Court wants only those portions of a deposition on which a movant actually relies, and does not want to be burdened with irrelevant testimony merely because counsel chose to, or found it more convenient to, submit it. And because videos cannot be filed on the public docket without leave of court, there was no need for the rule to contain a specific reference to video transcriptions; the only way to get such materials on the docket (and so before the Court) was to make a motion, giving the Court the opportunity to decide whether the videos should be publicly docketed. This Plaintiffs did not do.
But if Plaintiffs wanted to know whether the Court’s rule applied to video-recorded depositions, they could easily have sought clarification – just as they could easily have filed a motion seeking leave to have the Clerk of Court accept the videos and place them on the public record. Again, they did not. At the hearing held on March 17, 2026, on Defendants’ present motion for a protective order, counsel for ACLS Plaintiffs, Daniel Jacobson, acknowledged the reason, stating “Frankly, your Honor, part of it was just the amount of time that it would have taken” to submit only the portions of the videos on which Plaintiffs intended to rely. Hr’g Tr., 15:6–7. In other words, “It would have been too much work.” That is not an acceptable excuse.
The Court is left with the firm impression that at least “part of” the reason counsel did not ask for clarification was because they wished to manufacture a “judicial documents” argument and did not wish to be told they could not do so. The Court declines to indulge that tactic.
Fair enough. But having knocked the plaintiffs for their procedural maneuver, the judge then turns to the actual question: has the government shown “good cause” under Rule 26(c) to justify a protective order keeping the videos off the internet? And the answer is a pretty resounding no. And that’s because public officials acting in their official capacities have significantly diminished privacy interests in their official conduct:
The Government’s motion fails for three independent reasons. First, the materials at issue concern the conduct of public officials acting in their official capacities, which substantially diminishes any cognizable privacy interest and weighs against restriction. Second, the Government has not made the particularized showing of a “clearly defined, specific and serious injury” required by Rule 26(c). Third, the Government has not demonstrated that the prospective relief it seeks would be effective in preventing the harms it identifies, particularly where those harms arise from the conduct of third-party actors beyond the control of the parties.
She cites Garrison v. Louisiana (the case that extended the “actual malice” standard from NY Times v. Sullivan) for the proposition that the public’s interest “necessarily includes anything which might touch on an official’s fitness for office,” and that “[f]ew personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation.” Given that these depositions are literally about how government officials decided to terminate hundreds of millions of dollars in grants, that framing fits.
The judge also directly calls out the government’s arguments about harassment and reputational harm, and essentially says: that’s the cost of being a public official whose official conduct is being scrutinized. Suck it up, DOGE bros.
Reputational injury, public criticism, and even harsh commentary are not unexpected consequences of disclosing information about public conduct. They are foreseeable incidents of public scrutiny concerning government action. Where, as here, the material sought to be shielded by a protective order is testimony about the actions of government officials acting in their official capacities, embarrassment and reputational harm arising from the public’s reaction to official conduct is not the sort of harm against which Rule 26(c) protects. Public officials “accept certain necessary consequences” of involvement in public affairs, including “closer public scrutiny than might otherwise be the case.”
As for the death threats and harassment — which McMahon explicitly says she takes seriously and calls “deeply troubling” and “highly inappropriate” — she notes that there are actual laws against threats and cyberstalking, and that Rule 26(c) protective orders aren’t a substitute for law enforcement doing its job:
There are laws against threats and harassment; the Government and its witnesses have every right to ask law enforcement to take action against those who engage in such conduct, by enforcing federal prohibitions on interstate threats and cyberstalking, see, e.g., 18 U.S.C. §§ 875(c), 2261A, as well as comparable state laws. Rule 26(c) is not a substitute for those remedies.
And then there’s the practical reality McMahon acknowledges directly: it’s too damn late. The videos have already spread everywhere. A protective order aimed solely at the plaintiffs would accomplish approximately nothing.
At bottom, the Government has not shown that the relief it seeks is capable of addressing the harm it identifies. The videos have already been widely disseminated across multiple platforms, including YouTube, X, TikTok, Instagram, and Reddit, where they have been shared, reposted, and viewed by at least hundreds of thousands of users, resulting in near-instantaneous and effectively permanent global distribution. This is a predictable consequence of dissemination in the modern digital environment, where content can be copied, redistributed, and indefinitely preserved beyond the control of any single actor. Given this reality, a protective order directed solely at Plaintiffs would not meaningfully limit further dissemination or mitigate the Government’s asserted harms.
Separately, the plaintiffs asked for attorney’s fees, and McMahon denied that too, noting that she wasn’t going to “reward Plaintiffs for bypassing its procedures” even though the government’s motion ultimately failed. So everyone gets a little bit scolded here. But the bottom line is clear: you don’t get to send unqualified DOGE kids to nuke hundreds of millions in grants using a ChatGPT prompt, and then ask a court to hide the video of them trying to explain themselves under oath.
Releasing full deposition videos is certainly not the norm, but given that these are government officials who were making massively consequential decisions with a chatbot and no discernible expertise, the world is much better off with this kind of transparency — even if Justin and Nate had to face some people on the internet making fun of them for it.
Much of last week I had been working on a different article than the one this became. The American Historical Association, the Modern Language Association, and the American Council of Learned Societies — all plaintiffs in a lawsuit against the National Endowment for the Humanities over DOGE’s mass grant cancellations — had uploaded the full video depositions of four government witnesses to YouTube. I had been watching through the many hours of those videos, planning to write specifically about what former DOGE operatives Justin Fox and Nate Cavanaugh actually said under oath about how they decided which grants to kill.
I had already written about what the legal filings revealed back in February, well before the NY Times published its own deep dive into the depositions last week. But the videos added something the transcripts couldn’t fully capture: the demeanor of two young guys with zero government experience who were handed the power to destroy hundreds of millions of dollars in already-approved humanities grants, and who were now forced to sit there, on camera, and attempt (weakly) to explain themselves. Before I could publish my piece, 404 Media’s Joseph Cox covered some of what was found in the depositions and illustrated it with these thumbnails of Fox straight from YouTube that certainly… tell a story.
And then, of course, the government got the videos taken down. Because these alpha disruptors who thought they were saving America by nuking grants for Holocaust documentaries and Black civil rights research turned out to be too fragile to withstand a little internet mockery for their dipshittery.
We’ll get to that part. But first, let’s talk about what made the depositions so devastating, and why the government was so desperate to hide them.
As we covered in February, the actual “process” by which Fox and Cavanaugh decided to terminate nearly every active NEH grant from the Biden administration was, to put it charitably, not a process at all. Fox fed short grant descriptions into ChatGPT with a prompt that read:
“Does the following relate at all to DEI? Respond factually in less than 120 characters. Begin with ‘Yes’ or ‘No’ followed by a brief explanation. Do not use ‘this initiative’ or ‘this description’ in your response.”
That was it. A chatbot verdict in fewer characters than a tweet. As Cox reported after watching all six-plus hours of Fox’s deposition, nobody told Fox to use an LLM for this. He did it on his own. He called it an “intermediary step” — a fancy way of saying he asked the magic answer box to justify what he’d already decided to do.
The depositions revealed the ChatGPT prompt raising flags that would be comedic if the grants hadn’t actually been terminated. As the NY Times reported:
A documentary about Jewish women’s slave labor during the Holocaust? The focus on gender risked “contributing to D.E.I. by amplifying marginalized voices.”
Even an effort to catalog and digitize the papers of Thomas Gage, a British general in the American Revolution, was guilty of “promoting inclusivity and diversity in historical research.”
The Thomas Gage one is really something. The British general who oversaw the colonial crackdown that helped trigger the American Revolution is apparently too “diverse” for Trump’s “America First” humanities agenda. George Washington’s papers got spared, but the papers of the guy Washington fought against? DEI.
A sizable portion of the deposition was spent trying to get Fox to define DEI. He couldn’t. Or wouldn’t. He repeatedly deferred to the text of Trump’s executive order on DEI, while also admitting he couldn’t recall what it actually said.
How do you interpret DEI?
Fox: [sighs and then a very long pause] There was the EO explicitly laid out the details. I don’t remember it off the top of my head.
It’s okay. I’m asking for your understanding of it.
Fox: Yeah, my understanding was exactly what was written in the EO.
Okay, so can you…
Fox: I don’t remember what was in the EO.
So right now do you have an understanding of what DEI is?
Fox: Yeah.
Okay, so what’s your understanding as you sit here today in this deposition?
Fox: Um, well, it it was exactly what was written in the EO. And so anytime that we would look at a grant through the lens of complying with an executive order, we would just refer back to the EO and assess if this grant had relation to it.
Okay. But I guess I’m stepping back from your uh methodology strictly in terminating the grants. Do you have an understanding as you sit here today of what DEI means?
Fox: Yeah.
Okay. So what’s your understanding of what it means?
Fox: Well, I [scoffs] it is it is is exactly what was written in the EO. And I don’t have the EO in front of me, but that was we would always reference back to the EO and make sure that this grant was in compliance with the EO.
I understand that. Okay, but I’m not asking necessarily about what was in the EO. I’m asking very specifically about your present understanding of what… of DEI? Do you have a present understanding of DEI?
Fox: Yeah!
Okay. Can you explain what that present understanding is?
Fox: Um well, it It’s just easier for me to be referencing back to the EO.
Are you refusing to answer the question?
Fox: I’m not refusing to answer the question. I just feel that referencing back to the verbatim executive order was the best way for us to capture all of the DEI language. And so, I think giving a a high-level overview of what I could relay as DEI is not going to do justice what was written in the EO.
And that’s okay. We can look at the EO as well.
Fox: Great.
I’m asking you for I mean this is a deposition. I’m asking you questions. You’re under oath to answer them. So what what is your understanding of what DEI means?
Fox: Well, I I think I would say again that I I would go back to the EO to make sure I’m capturing enough. I don’t I don’t feel comfortable saying a high level overview because it is such a big bucket and there’s just a lot of pieces of the puzzle.
What’s a part of the bucket?
Fox: Um gender fluidity um sort of promoting um like promoting subsets of LGBTQ+ that um might um alienate another part of the community. Um. Again, it was just easier for us to reference back into the EO.
Okay, so …
Fox: And I don’t want to give you a broad overview because it’s at the end of the day it it is capturing… it is all encompassing in the EO. It’s how we it’s how we did our methodology.
Right. Do you always refer to EOs to gain an understanding of words used in your typical daily vernacular?
Fox: What do you mean?
You you say that you have an understanding what DEI means and when I ask you you say you need to reference the EO. Do you need to reference EOs to define every word you use in your everyday life?
Fox: No.
Okay. So, what’s stopping you from defining DEI to your understanding as you sit here today? On January 28th, 2026.
Fox: It wouldn’t be capturing enough of how big the topic is. DEI is a very broad structure. I’m giving giving my limited recall of what’s included is just not…
But his understanding leaked through anyway when specific grants came up.
Take the grant for a documentary about the 1873 Colfax massacre, where dozens of Black men were murdered by former Confederates and Klan members. ChatGPT flagged it as DEI. Fox agreed. Here’s how he explained it during the deposition. The lawyer reads aloud ChatGPT’s output and questions Fox about it:
“The documentary tells the story of the Colfax Massacre, the single greatest incident of anti-black violence during Reconstruction. And it’s historical and leg NAACP for black civil rights, Louisiana, the South, and in the nation as a whole.” Did I read that correctly?
Fox: Yes. Okay.
And then in column B right next to that, it says, “Yes, the documentary explores a historical event that significantly impacted black civil rights, making it relevant to the topic of DEI.” Did I read that correctly?
Fox: Yes.
Is it fair to say that what I just read is the ChatGPT output of the prompts in the first column?
Fox: Yes.
Okay. Do you agree with ChatGPT’s assessment here that a documentary is DEI if it explores historical events that significantly impacted black civil rights?
Fox:Yes.
Okay. Why would that be DEI?
Fox: It’s focused on a singular race. It is not for the benefit… It is not for the benefit of humankind. It is focused on a specific group of or a specific race here being black.
Why would learning about anti-black violence not be to the benefit of humankind.
Fox: That’s not what I’m saying.
Okay, then what are you saying?
Fox: I’m saying it relates to diversity, equity, and inclusion.
You said it’s not to the benefit of humankind. Right?
Fox: Is that what I said?
[Laughs] Yeah.
Then there was the documentary about Jewish women’s slave labor during the Holocaust:
The grant description of column row 252 says, “Production of My Underground Mother, a feature-length documentary that explores the untold story of Jewish women’s slave labor during the Holocaust through a daughter’s search for her late mother’s past, a collective camp diary in which she wrote and interviews with dozens of women survivors who reveal the gender-based violence they suffered and hit from their own families.” Did I read that correctly?
Fox: Yes.
Okay. And then in that row or column, you say “Yes DEI.” Did you write the rationale in that column?
Fox: Could you scroll over, Jacob?
Again, the rationale says, “The documentary addresses gender-based violence and overlooked histories contributing to DEI by amplifying marginalized voices.”
Fox: Yes.
Why is a documentary about Holocaust survivors DEI?
Fox: It’s the… gender-based… story… that’s inherently discriminatory to focus on this specific group.
It’s inherently discriminatory to focus on what specific group?
Fox: The gender-based so females… during the Holocaust.
And you believe that that’s inherently discriminatory?
Fox: I’m just saying that’s what it’s focused on.
Sure.
Fox: And this is related to the DEI.
Right. But you just use the term inherently discriminatory. What did you mean by that?
Fox: It’s focusing on DEI principles, gender being one of them.
So a documentary that’s about women would be DEI. Is that fair to say?
Fox: No.
Okay. So, tell me why what I just said isn’t DEI, but what you just said is DEI.
Fox: It’s a Jewish specifically focused on Jewish cultures and amplifying the marginalized voices of the females in that culture. It’s inherently related to DEI for those reasons.
Because it’s about Jewish culture?
Fox: Plus marginalized female voices during the Holocaust gender-based violence.
Okay. Is this… when we focus on a minority, is that your understanding that, you know, the Jewish people fall into the category of a minority?
Fox: Certainly a culture that could be described as minorities.
Okay. So, how did you go about determining what was a minority and what wasn’t a minority for the for the purpose of identifying DEI in grants?
Fox: Inherently focused on any ethnicity, culture, gender, no matter the sort of race or gender or or religion or… yeah.
So a documentary about anti-Black violence during Reconstruction is “not for the benefit of humankind.” A documentary about Jewish women’s slave labor during the Holocaust is “inherently DEI” because it’s focused on “gender” or “religion.” But remember, the keyword list Fox built to scan grants included terms like “LGBTQ,” “homosexual,” “tribal,” “BIPOC,” “native,” and “immigrants.” Notably absent: “white,” “Caucasian,” or “heterosexual.” When pressed on this, Fox offered the defense that he “very well could have” included those terms but just… didn’t.
Now, about Nate Cavanaugh. If you haven’t heard of Cavanaugh, he’s the college dropout who co-founded an IP licensing startup, partnered with Fox on the DOGE work at NEH, and was subsequently appointed — I am not making this up — president of the U.S. Institute of Peace and acting director of the Interagency Council on Homelessness, among other roles. When asked about DEI in his own deposition, Cavanaugh provided what might be the most inadvertently self-aware definition imaginable. While obnoxiously chewing gum during the deposition, the following exchange took place:
What is DEI referring to here?
Cavanaugh: It stands for diversity, equity and inclusion.
And what is your opinion of diversity, equity, inclusion.
Cavanaugh: My personal opinion?
Well, let’s start with what does it mean to you?
Cavanaugh: It means diversity, equity, inclusion.
Well, that’s the label, but what does what do those words mean?
Cavanaugh: It means uh it means making decisions on a basis of something other than merit.
Irony alert: Nate Cavanaugh — a college dropout with no government experience, no background in the humanities, and no apparent understanding of the grants he was terminating — defined DEI as “decisions on the basis of something other than merit.” He said this while sitting in a deposition about his time holding multiple senior government positions for which he had no qualifications whatsoever. The lack of self-awareness is genuinely staggering.
And what did all of this actually accomplish? By Cavanaugh’s own admission, the deficit didn’t go down. Fox was asked about this too. From 404 Media:
When the attorney then asks if Fox would be surprised to hear if the overall deficit did not go down after DOGE’s actions, Fox says no. In his own deposition, Cavanaugh acknowledged the deficit did not go down.
“I have to believe that the dollars that were saved went to mission critical, non-wasteful spending, and so, again, in the broad macro: an unfortunate circumstance for an individual, but this is an effort for the administration,” Fox says. “In my opinion, what is certainly not wasteful is food stamps, healthcare, Medicare, Medicaid funding,” Fox says. Later he adds when discussing a specific cut grant: “those dollars could be getting put to something like food stamps or Medicaid for grandma in a rural county.”
There is no evidence these funds were directed in that way. The Trump administration has kicked millions of people off of food stamps. It has, just as an example, given ICE tens of billions of more dollars, though.
Sure, kiddo. It was all for grandma’s food stamps. (Though given Fox’s ideological priors, one suspects that food stamps themselves would end up on the ‘wasteful spending’ list soon enough.)
The NY Times piece also revealed some remarkable details about how the process played out internally. Acting NEH Chairman Michael McDonald, who had been at the agency for over two decades and could recall fewer than a half-dozen grant revocations in that entire time — all for failure to complete promised work — went along with the mass cancellation of nearly every active Biden-era grant. When DOGE’s process wasn’t moving fast enough, Fox emailed McDonald:
We’re getting pressure from the top on this and we’d prefer that you remain on our side but let us know if you’re no longer interested.
McDonald expressed some reservations, calling many of the grants slated for termination “harmless when it comes to promoting DEI.” But he rolled over:
“But you have also told us that in addition to canceling projects because they may promote DEI ideology, the DOGE Team also wishes to cancel funding to assist deficit reduction. Either way, as you’ve made clear, it’s your decision on whether to discontinue funding any of the projects on this list.”
Out of all grants approved during the Biden administration, only 42 were kept. The rest — 1,477 grants — were terminated. No appeals were allowed. Termination letters bore McDonald’s signature but were sent from an unofficial email address the DOGE employees created. McDonald himself admitted he didn’t draft the letters and couldn’t tell you how many grants were cut. And when pressed on whether the grants concerning the Colfax Massacre and the Holocaust were actually DEI, McDonald — who, unlike Fox and Cavanaugh, actually has a doctorate in literature — said he didn’t agree they were. But he signed off on their termination anyway.
Oh, and McDonald apparently didn’t even know Fox and Cavanaugh had used ChatGPT to make the determinations.
So that’s the substance. Two unqualified guys, a chatbot, a keyword list built on culture war grievances, and the destruction of a century-old institution’s grant portfolio in about two weeks. We covered the mechanics in February. The depositions just put it all on video, in their own words, in all its arrogant, ignorant glory.
And then the government decided it couldn’t handle the public seeing it.
After the plaintiff organizations uploaded the deposition videos to YouTube and shared materials with the press, the government filed an urgent letter asking the court to order the videos removed “from the internet” — yes, they actually used that phrasing — and to restrict the plaintiffs from further publicizing discovery materials. Their argument was that the videos “could subject the witnesses and their family members to undue harassment and reputational harm.”
A few days later, the government came back even more agitated, reporting that Fox had received death threats and that the videos had circulated widely, with “well over 100,000 X posts circulating and/or discussing video clips” of the depositions. The filing cited media coverage from People, HuffPost, 404 Media, and The Advocate.
“Unfortunately, that risk has now materialized—at least one witness has been subjected to significant harassment, including death threats. Accordingly, we respectfully request that the Court enter the requested order as soon as possible to minimize the risk of additional harm to the witnesses and their families.”
Death threats are genuinely bad and nobody should send them. Full stop. That said, let’s explore the breathtaking asymmetry for a moment.
Fox and Cavanaugh subjected more than 1,400 grant recipients to termination with no warning, no due process, no appeal, and effectively forged the director’s signature on the letters. They didn’t give an ounce of thought to the livelihoods they were destroying — the researchers mid-project, the documentary filmmakers, the archivists, the teachers, the organizations that had planned years of work around these grants. When asked if he felt any remorse, Fox said:
Sorry for those impacted, but there is a bigger problem, and that’s ultimately—the more important piece is reducing the government spend.
But now that people are being mean to them on the internet? Now, suddenly, the government needs an emergency protective order and the videos must be scrubbed from existence.
Judge Colleen McMahon did initially order the plaintiffs to “immediately take any and all possible steps to claw back the videos,” pending further briefing. The plaintiffs responded with an emergency motion pointing out a fairly important detail: the government never designated the deposition videos as confidential under the existing protective order. They had the opportunity to do so and didn’t. From the plaintiffs’ filing:
Defendants never designated the video depositions in question as Confidential under the Protective Order, and Defendants have never alleged in their correspondence with ACLS Plaintiffs that ACLS Plaintiffs violated the protective order presently in place.
In other words, the government had a mechanism to keep the videos under wraps. They chose not to use it. And now they want the court to do retroactively what they failed to do at the time.
The judge’s response to the emergency motion was delightfully terse:
DENIED.
See you Tuesday.
And then there’s the part where the government’s own filing accidentally makes the case for why these videos are important. In arguing that the plaintiffs were acting improperly, the government noted that the MLA’s website had links to the deposition videos alongside a link soliciting donations to its advocacy initiative:
Directly below these materials is a link soliciting monetary donations to the MLA’s advocacy initiative “Paving the Way.” To the extent the MLA or other ACLS Plaintiffs are publicizing these documents as part of their fundraising efforts, that is improper.
Which is an interesting argument to make when the entire lawsuit exists because DOGE used ChatGPT to destroy a hundred million dollars in humanities funding.
Now, finally, about those videos the government wanted removed “from the internet.” As anyone who has spent more than fifteen minutes studying the history of online content suppression could have predicted, the attempt to get the videos taken down had precisely the opposite of its intended effect. The videos were backed up almost immediately to the Internet Archive, distributed as a torrent, and spread across social media. As 404 Media reported:
The news shows the difficulty in trying to remove material from the internet, especially that which has a high public interest and has already been viewed likely millions of times. It’s also an example of the “Streisand Effect,” a phenomenon where trying to suppress information often results in the information spreading further.
We’ve written about the Streisand Effect many, many times over the years here at Techdirt, and the pattern is always the same: someone sees something embarrassing about themselves online, panics, tries to make it go away, and in doing so ensures that orders of magnitude more people see it than ever would have otherwise. The government’s frantic filings, complete with citations to specific media articles and X post counts, served as a helpful reading list for anyone who hadn’t yet seen the videos.
The judge’s order, notably, only directed the plaintiffs to take down the videos. It said nothing about the Internet Archive, the torrent, the clips on X, the embeds in news articles, or the countless other copies that had already proliferated. And, really, given that none of the other sources are parties to the case, and the associated First Amendment concerns, it’s difficult to see those videos going away any time soon.
The government wanted the videos removed “from the internet.” They have now been seeded to the internet in a format specifically designed to be impossible to remove.
This is what happens when you try to suppress something the public has already decided it wants to see.
And that gets to the broader absurdity here. Fox and Cavanaugh walked into a federal agency they knew nothing about, used a chatbot to condemn more than a thousand grants they never read, created spreadsheets labeled “Craziest Grants” and “Other Bad Grants,” planned to highlight them on DOGE’s X account for culture war clout, sent termination letters with someone else’s signature from a private email server, and explicitly told the agency head that no appeals would be allowed.
When asked under oath to justify what they did, Fox couldn’t define DEI, couldn’t explain why documenting anti-Black violence isn’t “for the benefit of humankind,” and could only offer that the money they saved was probably going to food stamps for grandma — which it very much was not. Cavanaugh couldn’t define DEI either, acknowledged the deficit didn’t go down, and gave a definition of DEI that perfectly described his own role in the federal government.
These are the people who DOGE sent to reshape the government. And now that government is asking a federal judge for an emergency protective order because the internet is being kinda mean about it. Poor poor snowflake DOGE boys.
As the ACLS president put it, “DOGE employees’ use of ChatGPT to identify ‘wasteful’ grants is perhaps the biggest advertisement for the need for humanities education, which builds skills in critical thinking.”
She’s right. Though I’d argue watching these depositions is — unlike Fox’s ridiculously bigoted definition of Black history — very much for the benefit of humankind.
Federal grants that had been approved after a full application and review process were terminated by some random inexperienced DOGE bros based on whether ChatGPT could explain—in under 120 characters—that they were “related to DEI.”
That’s what the newly released proposed amended complaint from the Authors Guild against the US government reveals about how DOGE actually decided which National Endowment for the Humanities grants to kill.
There were plenty of early reports that the DOGE bros Elon Musk brought into government—operating on the hubristically ignorant belief that they understood how things worked better than actual government employees—were using AI tools to figure out what to cut. Now we have the receipts.
Cavanaugh was appointed president of the U.S. Institute of Peace after DOGE took over, though that position is affected by this week’s court ruling. Shortly after being named the acting director of theInteragency Council on Homelessness— one of the agencies Trump’s budget proposal calls for eliminating — Cavanaugh placed its entire staff on administrative leave.
Cavanaugh first emerged atGSAin February, where he met with many technical staffers and software engineers and interviewed them about their jobs, according to four GSA employees who spoke on condition of anonymity because they feared retaliation.
Since then, he’s also been detailed to multiple other agencies, according to court filings, including the U.S. African Development Foundation (USADF), the Inter-American Foundation (IAF), the Institute of Museum and Library Services, the National Endowment for the Humanities (NEH) and theMinority Business Development Agency.
Cavanaugh’s partner in much of the small agency outreach is Justin Fox, who most recently worked as an associate at Nexus Capital Management, according to his LinkedIn profile.
As far as I can tell, Cavanaugh is a college dropout who founded a startup to do IP licensing management, that has gone through some trouble. We’ve mentioned Cavanaugh here before, for the time when he was head of the US Institute for Peace, and Elon and DOGE falsely labeled a guy who had worked for USIP a member of the Taliban, causing the actual Taliban to kidnap the guy’s family. Fox, as noted, was a low rung employee at some random private equity firm. Neither should have any of the jobs listed above, and don’t seem to know shit about anything relevant to a government role.
Anyway, as the Authors Guild figured out in discovery, when these two inexperienced and ignorant DOGE bros were assigned to cut grants in the National Endowment for the Humanities, apparently Fox just started feeding grant titles to ChatGPT asking (in effect) “is this DEI?” From the complaint:
To flag grants for their DEI involvement, Fox entered the following command into ChatGPT: “Does the following relate at all to DEI? Respond factually in less than 120 characters. Begin with ‘Yes.’ or ‘No.’ followed by a brief explanation. Do not use ‘this initiative’ or ‘this description’ in your response.” He then inserted short descriptions of each grant. Fox did nothing to understand ChatGPT’s interpretation of “DEI” as used in the command or to ensure that ChatGPT’s interpretation of “DEI” matched his own.
Cool.
Then, actual staff at the NEH, including experts who might have been able to explain to these two interlopers what the grants actually did and why they were worth supporting, were blocked from challenging the termination of these grants.
Grants identified this way were slated for termination—with only a handful of exceptions, staff at NEH, including the Acting Chair, were not permitted to remove them from the termination list.
It seems to me that two ignorant DOGE bros cancelling humanities grants based solely on “yo is this DEI?” ChatGPT prompts, kinda shows the need for actual diversity, equity, and inclusion in how things like the National Endowment for the Humanities should work. Instead, you have two rando dweebs who don’t understand shit asking the answer machine to justify cancelling grants that sound too woke.
It really feels like these two chucklefucks should be asked to justify their jobs way more than any of these grant recipients should have to justify their work. But, nope, the bros just got to cancelling.
See if you notice a pattern.
For instance, Fox searched each grant’s description for the use of key words that appeared in a “Detection List” that he created. Those key words included terms such as “LGBTQ,” “homosexual,” “tribal,” “immigrants,” “gay,” “BIPOC (Black, Indigenous, People of Color),” “native,” and so on. Terms like “white,” “Caucasian,” and “heterosexual” did not appear in the Detection List.
Fox also organized certain grants into a spreadsheet with lists that he labeled “Craziest Grants” and “Other Bad Grants.” Among the grants on those lists were those Fox described as relating to “experiences of LGBTQ military service,” “oral histories of LatinX in the mid-west,” “social and cultural context of tribal linguistics,” and a “book on the ‘first gay black science fiction writer in history.’”
Fox also used the Artificial Intelligence (“AI”) tool ChatGPT to search grant descriptions that purportedly related to DEI, but Fox did not direct the AI tool that it should not identify grants solely on the basis of race, ethnicity, gender, sexuality, or similar characteristic. The AI searches broadly captured all grants that referred to individuals based on precisely those characteristics. For example, the AI searches flagged a grant described as concerning “the Colfax massacre, the single greatest incidence of anti-Black violence during Reconstruction,” another concerning “the untold story of Jewish women’s slave labor during the Holocaust,” another that funded a film examining how the game of baseball was “instrumental in healing wounds caused by World War I and the 1980s economic standoff between the US and Japan,” another charting “the rise and reforms of the Native Americans boarding school systems in the U.S. between 1819 and 1934,” and another about “the Women Airforce Service Pilots (WASP), the first female pilots to fly for the U.S. military during WWII” and the “Black female pilots who . . . were denied entry into the WASP because of their race.”
So, yeah. This kid basically fed any grant that might upset a white Christian nationalist into ChatGPT, saying “justify me cancelling this shit for being woke” and then he and his college dropout “IP licensing” buddy cancelled them all.
Cavanaugh worked closely with Fox in selecting which grants to terminate using this selection criteria.
Fox and Cavanaugh sorted grants in lists labeled “to cancel” or “to keep.”
No grant relating to DEI as broadly conceived of by Fox and Cavanaugh appeared on the “to keep” list. Grants that Fox and Cavanaugh considered “wasteful” and thus slated for termination could be moved to the “to keep” list by Defendant McDonald only if they related to “America 250” or the “Garden of Heroes” initiatives based on the views of Defendants McDonald, Fox, Cavanaugh, and NEH staff member, Adam Wolfson
The complaint notes that almost immediately Cavanaugh and Fox sent out mass emails to more than 1,400 grant recipients, from a private non-government email server, telling them their grants had been terminated.
Even though the emails stated that the grant terminations were “signed” by the acting director of NEH, Michael McDonald, he admitted he had nothing to do with them. It was all Fox, Cavanaugh… and ChatGPT based on a very stupid prompt.
McDonald appeared to acknowledge that he did not determine which grants to terminate nor did he draft the termination letters. First, he stated that he had explained NEH’s traditional termination process but that “as they said in the notification letter…they would not be adhering to traditional notification processes” and “they did not feel those should be applied in this instance.” Further, in response to a question about the rationale for grant terminations, he replied that the “rationale was simply because that’s the way DOGE had operated at other agencies and they applied the same methodology here.” McDonald also said that any statement about the number of grants terminated would be “conjecture” on his part, even though he purportedly signed each termination letter
DOGE bros gone wild.
So, just to recap, we have two random DOGE bros with basically no knowledge or experience in the humanities (and at least one of whom is a college dropout), who just went around terminating grants that had gone through a full grant application process by feeding in a list of culture war grievance terms, selecting out the grant titles based on the appearance of seemingly “woke” words, then asking ChatGPT “yo, tell me this is DEI” and then sending termination emails the next day from a private server and forging the director’s signature.
This is what “government efficiency” looks like in practice: two guys with zero relevant experience, a keyword list built on culture war grievances, and a chatbot confidently spitting out 120-character verdicts on federal grants that went through actual review processes. The experts who might have explained what these grants actually do? Locked out. The director whose signature appeared on termination letters? Couldn’t tell you which grants got cut or why.
The cruelty isn’t incidental. But neither is the incompetence. These are people who genuinely believe that being good at vibes-based pattern matching is the same as understanding how institutions work. And the wreckage they leave behind is the entirely predictable result.
A federal judge just ruled that computer-generated summaries of novels are “very likely infringing,” which would effectively outlaw many book reports. That seems like a problem.
This isn’t just about AI—it’s about fundamentally redefining what copyright protects. And once again, something that should be perfectly fine is being treated as an evil that must be punished, all because some new machine did it.
But, I guess elementary school kids can rejoice that they now have an excuse not to do a book report.
To be clear, I doubt publishers are going to head into elementary school classrooms to sue students, but you never know with the copyright maximalists.
Sag highlights how it could have a much more dangerous impact beyond getting kids out of their homework: making much of Wikipedia infringing.
A new ruling in Authors Guild v. OpenAI has major implications for copyright law, well beyond artificial intelligence. On October 27, 2025, Judge Sidney Stein of the Southern District of New York denied OpenAI’s motion to dismiss claims that ChatGPT outputs infringed the rights of authors such as George R.R. Martin and David Baldacci. The opinion suggests that short summaries of popular works of fiction are very likely infringing (unless fair use comes to the rescue).
This is a fundamental assault on the idea, expression, distinction as applied to works of fiction. It places thousands of Wikipedia entries in the copyright crosshairs and suggests that any kind of summary or analysis of a work of fiction is presumptively infringing.
Short summaries of copyright-covered works should not impact copyright in any way. Yes, as Sag points out, “fair use” can rescue in some cases, but the old saw remains that “fair use is just the right to hire a lawyer.” And when the process is the punishment, saying that fair use will save you in these cases is of little comfort. Getting a ruling on fair use will run you hundreds of thousands of dollars at least.
Copyright is supposed to stop the outright copying of the copyright-protected expression. A summary is not that. It should not implicate the copyright in any form, and it shouldn’t require fair use to come to the rescue.
Sag lays out the details of what happened in this case:
Judge Stein then went on to evaluate one of the more detailed chat-GPT generated summaries relating to A Game of Thrones, the 694 page novel by George R. R. Martin which eventually became the famous HBO series of the same name. Even though this was only a motion to dismiss, where the cards are stacked against the defendant, I was surprised by how easily the judge could conclude that:
“A more discerning observer could easily conclude that this detailed summary is substantially similar to Martin’s original work, including because the summary conveys the overall tone and feel of the original work by parroting the plot, characters, and themes of the original.”
The judge described the ChatGPT summaries as:
“most certainly attempts at abridgment or condensation of some of the central copyrightable elements of the original works such as setting, plot, and characters”
He saw them as:
“conceptually similar to—although admittedly less detailed than—the plot summaries in Twin Peaks and in Penguin Random House LLC v. Colting, where the district court found that works that summarized in detail the plot, characters, and themes of original works were substantially similar to the original works.” (emphasis added).
To say that the less than 580-word GPT summary of A Game of Thrones is “less detailed” than the 128-page Welcome to Twin Peaks Guide in the Twin Peaks case, or the various children’s books based on famous works of literature in the Colting case, is a bit of an understatement.
Yikes. I’m sorry, but if you think that a 580-word computer-generated summary of a massive book is infringing, then we’ve lost the plot when it comes to copyright law. If it were, then copyright itself would need to be radically changed to allow for basic forms of human speech. If I see a movie and tell my friend what it was about, that shouldn’t implicate copyright law, even if it summarizes “the plot, characters, and themes of the original work.”
Sag then ties this to what you can find for countless creative works on Wikipedia:
To see why the latest OpenAI ruling is so surprising, it helps to compare the ChatGPT summary of A Game of Thrones to the equivalentWikipedia plot summary. I read them both so you don’t have to.
The ChatGPT summary of a Game of Thrones is about 580 words long and captures the essential narrative arc of the novel. It covers all three major storylines: the political intrigue in King’s Landing culminating in Ned Stark’s execution (spoiler alert), Jon Snow’s journey with the Night’s Watch at the Wall, and Daenerys Targaryen’s transformation from fearful bride (more on this shortly) to dragon mother across the Narrow Sea. In this regard, it is very much like the 800 word Wikipedia plot summary. Each summary presents the central conflict between the Starks and Lannisters, the revelation of Cersei and Jaime’s incestuous relationship, and the key plot points that set the larger series in motion.
And, look, if you want to see the chilling effects on speech created by over expansive copyright law, well:
I could say more about their similarities, but I’m concerned that if I explored the summaries in any greater detail, the Authors Guild might think that I am also infringing George R. R. Martin’s copyright, so I’ll move on to the minor differences.
You can argue that Sag, an expert on copyright law, is kind of making a joke here, but it’s no actual joke. Just the fact that someone even needs to consider this shows how bonkers and problematic this ruling is.
As Sag makes clear, there are few people out there who would legitimately think that the Wikipedia summary should be deemed infringing, which is why this ruling is notable. It again highlights how lots of people, including the media, lawmakers, and now (apparently) judges, get so distracted by the “but this new machine is bad!” in looking at LLM technology that they seem to completely lose the plot.
And that’s dangerous for the future of speech in general. We shouldn’t be tossing out fundamental key concepts in speech (“you can summarize a work of art without fear”) just because some new kind of summarization tool exists.
It’s been eight years since the Authors Guild was thoroughly and totally embarrassed by losing its big lawsuit against Google over the Google Books scanning project. I guess they’re missing the feeling of embarrassment, as they’ve filed what is effectively the same damn suit against OpenAI over that company’s book scanning.
Now, I know, some folks are going to insist that this is somehow different, that AI makes things different, but if anything, I’d argue that the case against OpenAI is significantly weaker than the one against Google. In the case of Google, the company was actually showing snippets of the works. With OpenAI, its book scanning is only for the sake of training the AI. The AI systems are doing the equivalent of reading the books, but never displaying them, just learning from them.
The process is indistinguishable from how humans learn: they read books, and retain some details, and if asked to produce a summary of the work, or to create a work “in the style of” an author, they do so by taking what they’ve learned and producing an entirely new work. That’s all that OpenAI does as well. And unless we’re going to say that reading a book and producing a book report is infringing, then this case seems particularly pointless.
Now, this isn’t the first lawsuit by authors against OpenAI. We covered another one back in July, but rather than just a random list of authors and a desire to turn it into a class action, this new lawsuit is by the Authors Guild itself, and has a ton of big names, including John Grisham, Mary Bly, George Saunders, Scott Turow, Jonathan Franzen, and George R.R. Martin.
It’s not surprising that some of these authors are angry. Scott Turow (who had been a lawyer) used to run the Authors Guild, and was the architect of its failed attack on Google’s book scanning effort. He should have learned his lesson, but if we’ve learned anything over it’s the last decade it’s that Scott Turow’s hatred for the internet knows no bounds.
Some of the other authors you wish would be a bit more circumspect before going down this path.
Of course, with copyright law, the end result is always somewhat up in the air. Judges all too often fall under the sway of big names whining about their “lost money,” and are willing to ignore the text and limitations of copyright law for a chance to make the richest of the rich authors even wealthier.
But, this is a terrible lawsuit and should lose, and the Authors Guild should be embarrassed again. Everything about the complaint is dumb. The Authors Guild is somewhat famous for only looking out for the interests of its biggest name authors (and, bizarrely, publishers), and screwing over smaller authors. And you can see that in the complaint, which literally claims that without the authors suing here, OpenAI would have no product at all (which is just nonsense):
Unfairly, and perversely, without Plaintiffs’ copyrighted works on which to “train” their LLMs, Defendants would have no commercial product with which to damage—if not usurp—the market for these professional authors’ works. Defendants’ willful copying thus makes Plaintiffs’ works into engines of their own destruction.
No offense, but if OpenAI could “usurp” the market for these writers, then these writers suck and deserve to have their market usurped. Do these writers not actually believe they can write better stories than a computer?
How embarrassing for them to admit that. Also, as much as I’ve enjoyed some of their works in the past, this lawsuit tells me that these authors are cooked. They are admitting that they’re so uncreative a computer can outwrite them. Fair enough warning: no need to ever read any of their books any more.
Somewhat hilariously, the Authors Guild uses the fact that ChatGPT says that some of its training model may have come from in-copyright works as proof that they did:
ChatGPT itself admits as much. In response to a query submitted to it in January 2023, the chatbot responded: “It is possible that some of the books used to train me were under copyright. However, my training data was sourced from various publicly available sources on the internet, and it is likely that some of the books included in my training dataset were not authorized to be used. … If any copyrighted material was included in my training data, it would have been used without the knowledge or consent of the copyright holder.”
But… ChatGPT doesn’t actually know that. ChatGPT makes up its answers based on probabilistic scores, which is why it’s prone to “hallucinate” false things as true. While, it would only make sense that OpenAI was trained on such things because doing so would be fair use (given multiple court rulings regarding the computer scanning of copyright covered materials, including both search engines and book scanning), the fact that the Authors Guild thinks ChatGPT saying this is some sort of admission shows just how little (i.e., basically nothing) the Authors Guild and its lawyers understand any of this.
The lawsuit, bizarrely, highlights that some Authors Guild members are so bad at writing that they’d already lost jobs to ChatGPT:
An Authors Guild member who writes marketing and web content reported losing 75 percent of their work as a result of clients switching to AI.
Another content writer (unrelated to the Plaintiffs here) told the Washington Post that half of his annual income (generated by ten client contracts) was erased when the clients elected to use ChatGPT instead.
Why would you admit that? Incredibly, in the very next paragraph in the suit, the Authors Guild admits that AI-generated content is terrible. Right after admitting that its own members write worse. Incredible.
Recently, the owner of popular online publications such as Gizmodo, Deadspin, The Root, Jezebel and The Onion came under fire for publishing an error-riddled, AI-generated piece, leading the Writers Guild of America to demand “an immediate end of AI-generated articles” on the company’s properties.
The Authors Guild notes that it holds several copyrights itself, that it’s using in this lawsuit, including for Mignon Eberhart’s books, such as “The Patient in Room 18,” which was published in 1929 and will go into the public domain in less than a year and a half. Also there’s “While the Patient Slept.” That’s a book that was… published in 1930 and will go into the public domain in less than three years. Is the Authors Guild really claiming there’s some giant market for licensing books that are about to go into the public domain? Really?
And, again, like earlier suits, their big complaint is that these AI tools can do the same thing a 7th grade student can:
When prompted, ChatGPT generated an accurate summary of the final chapter of While the Patient Slept, one of the Authors Guild Infringed Works.
Generating a summary is not infringing, guys.
For another author, the complaint is that it generated a made up outline for the next book in a series of books, which is (again) often a task assigned in high school English classes (I remember having to draft an outline for a sequel to 1984, was I infringing too?)
Again, this complaint is pure hubris and greed from authors. The complaint cites a survey saying that authors believe they should be paid for having their works training AI systems, and who isn’t going to say they should get free money for doing nothing? That’s not how you determine if it’s actually infringing, though.
As mentioned above, copyright law is difficult to predict, because judges often go wacky, but this is a horrifically stupid lawsuit, following on some other similar lawsuits. The Authors Guild lost every bit of the Google Books scanning lawsuit, which was found to be transformative and fair use, and the same should be the case here as well.
On Friday, we wrote about hundreds of authors signing a letter calling out the big publishers’ attacks on libraries (in many, many different ways). The publishers pretend to represent the best interests of the authors, but history has shown over and over again that they do not. They represent themselves, and use the names of authors they exploit to claim the moral high ground they do not hold.
It’s no surprise, then, that the publishers absolutely fucking lost their shit after the letter came out. The Association of American Publishers put out a statement falsely claiming that the letter, put out by Fight for the Future (FftF), and signed by tons of authors from the super famous to the less well known, was actually “disinformation in the Internet Archive case.” And, look, if you’re at the point you’re blaming the Internet Archive for something another group actually did, you know you’ve lost, and you’re just lashing out.
Perhaps much more telling is that the Authors Guild actually put out an even more aggressive statement against Fight for the Future. Now, as best selling author Barry Eisler (who signed onto Fight for the Future’s letter) wrote write here on Techdirt years ago, it’s been clear for a while that the Authors Guild is not actually representing the best interests of authors. It has long been a front group for the publishers themselves.
The Authors Guild’s response to the FftF letter simply confirms this.
First, it claims that authors were misled into signing the letter by an earlier, different draft of the letter. This is simply false. The Authors Guild is making shit up because they just can’t believe that maybe authors actually support this.
They do name one author, Daniel Handler (aka Lemony Snicket), who had signed on, but removed his name before the letter was even published. But… I’m guessing the real reason that probably happened was that the publishers (who learned about the letter before it was published as proved by this email that was sent around prior to the release) FLIPPED OUT when they saw Handler’s name was on the letter. That’s because in their lawsuit against the Internet Archive’s open library project, they rely heavily on the claim that Lemony Snicket’s books are available there.
It seems reasonable to speculate that the publishers saw his name was on the letter, realized it undermined basically the crux of their case, and came down like a ton of bricks on him to pressure him into un-signing the letter. That story, at the very least, makes more sense than someone like Handler somehow being “tricked” into signing a letter that very clearly says what it says.
The Authors Guild’s other claims are equally sketchy.
The lawsuit against Open Library is completely unrelated to the traditional rights of libraries to own and preserve books. It is about Open Library’s attempt to stretch fair use to the breaking point – where any website that calls itself a library could scan books and make them publicly available – a practice engaged in by ebook pirates, not libraries.
This completely misrepresents what the Open Library does, and its direct parallel to any physical library, in that it buys a copy of a book and then can lend out that copy of the book. The courts have already established that scanning books is legal fair use — thanks to a series of cases the Authors Guild brought and lost (embarrassingly so) — and the Open Library then only allows a one-to-one lending of ebooks to actual books. It is functionally equivalent to any other library in any way.
And this is actually important, living at a time when these very same publishers are trying to use twisted interpretations of copyright law, to insist that they can limit how libraries buy and lend ebooks in ways that simply are not possible under the law with regular books.
Also, there’s this bit of nonsense:
The lawsuit is being brought only against IA’s Open Library; it will not impact in any way the Wayback Machine or any other services IA offers.
This is laughable. The lawsuit is asking for millions and millions of dollars from the Internet Archive. If it loses the case, there’s a very strong likelihood that the entire Internet Archive will need to shut down, because it will be unable to pay. Even if the Internet Archive could survive, the idea that this non-profit would be forced to fork over tens of millions of dollars wouldn’t have any impact on other parts of its offerings is laughable.
As expected, corporate publishing industry lobbyists have responded by attempting to undermine the demands of these authors by circulatingfalse and condescending talking points, a frequent tactic lobbyists use to divert attention from the principled actions of activists.
The statement from the Authors Guild specifically asserts, without evidence, that “multiple authors” who signed this letter feel they were “misled”. This assertion is false and we challenge these lobbyists to either provide evidence for their claim or retract it.
It’s repugnant for industry lobbying associations who claim to represent authors to dismiss the activism of author-signatories like Neil Gaiman, Chuck Wendig, Naomi Klein, Robert McNamee, Baratunde Thurston, Lawrence Lessig, Cory Doctorow, Annalee Newitz, and Douglas Rushkoff, or claim that these authors were somehow misled into signing a brief and clear letter issuing specific demands for the good of all libraries. Corporate publishing lobbyists are free to disagree with the views stated in our letter, but it’s unacceptable for them to make false claims about our organization or the authors who signed.
They also highlight how many authors who signed onto the letter talked about how proud they are that their books are available at the Internet Archive, which is not at all what you would expect if the Open Library was actually about “piracy.”
Author Elizabeth Kate Switaj said when signing: “My most recently published book is on the Internet Archive—and that delights me.” Dan Gillmor said: “Big Publishing would outlaw public libraries if it could—or at least make it impossible for libraries to buy and lend books as they have traditionally done, to enormous public benefit—and its campaign against the Internet Archive is a step toward that goal.” Sasha Costanza-Cook called publisher’s actions against the Internet Archive “absolutely shameful” and Laura Gibbs said “it’s the library I use most, and I am proud to see my books there.”
They, also, rightly push back on the totally nonsense claims that FftF is “not independent” and is somehow a front for the Internet Archive. I know people at both organizations, and this assertion is laughable. The two organizations agree on many things, but are absolutely and totally independent. This is nothing but a smear from the Authors Guild which can’t even fathom that most authors don’t like the publishers or the way the Authors Guild has become an organization that doesn’t look out for the best interests of all authors, but rather just a few of the biggest names.
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.
It’s been said many times over that if libraries did not currently exist, there’s no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall. Last week, the Internet Archive announced what it’s calling a National Emergency Library — a very useful and sensible offering, as we’ll explain below. However, publishers and their various organizations freaked out (leading some authors to freak out as well). The freak out is not intellectually honest or consistent, but we’ll get there.
As you may or may not know, for a while now, the Internet Archive and many other libraries have been using a system called Controlled Digital Lending, which was put together to enable digital checkouts of books for which there may not be any ebooks available. Basically, the Archive helped a bunch of libraries scan a ton of books, and the libraries lend them out just as if they were lending out regular books. They keep the physical copy on the shelf and will not lend out more copies of the digital book than the physical copies they hold — basically doing exactly what a library does. There are strong arguments for why this is clearly legal. Scanning a book you own is legal. Lending out books is legal.
Of course, when CDL was first announced, publishers (mainly) and The Authors Guild (which, contrary to its name, tends to be a front group for publishers, rather than authors) completely lost their shit and whined about how this was piracy. Remember, the Authors Guild has already tried suing libraries for scanning books and failed miserably. Challenging this effort at lending scans of books would also likely fail.
One important thing to note: the scans of books that are part of the CDL effort are not great. They are images of actual book pages, and not anything like ebooks that are designed to be read nicely on a Kindle or whatnot. No one would choose a CDL book over a regular ebook if given the choice, because the experience is not nearly as good.
The big news with the National Emergency Library is basically the removal of waitlists for checking out these books. They still have DRM and you still only can access the books for two weeks, but unlike with CDL where there was a 1 to 1 ratio of which books the Internet Archive had a physical copy of and those which it would lend out, the NEL removed that limitation and made it so that more people could access those books at once. The reasoning here is sound: in the midst of this pandemic, most physical libraries are closed, so most people literally cannot get physical books. They are sitting there unlendable. To help deal with that, the Internet Archive removed the waitlists on the books it had scanned. As the Archive explained, it focused heavily on making sure books with no ebook-availability (and educational books) were available:
The Internet Archive has focused our collecting on books published between the 1920s and early 2000s, the vast majority of which don?t have a commercially available ebook. Our collection priorities have focused on the broad range of library books to support education and scholarship and have not focused on the latest best sellers that would be featured in a bookstore.
Further, there are approximately 650 million books in public libraries that are locked away and inaccessible during closures related to COVID-19. Many of these are print books that don?t have an ebook equivalent except for the version we?ve scanned. For those books, the only way for a patron to access them while their library is closed is through our scanned copy.
But, of course, almost immediately after this was announced the very same groups that already insisted that CDL was “piracy” jumped on this to scream from the heavens about “piracy” in making these books available to people stuck at home. The Authors Guild flipped out:
IA has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author. We are shocked that the Internet Archive would use the Covid-19 epidemic as an excuse to push copyright law further out to the edges, and in doing so, harm authors, many of whom are already struggling.
This is false. The Internet Archive has every right to those books — all of which were purchased or donated. And the Authors Guild already failed in its lawsuit saying that the books couldn’t be scanned, so it’s just making stuff up now to get even angrier than it was before. There is no more “harm” to authors than there is during the days when libraries are open and people could (as per normal) borrow these books. Again, the real thing the Authors Guild hates here is libraries.
The Association of American Publishers (run by fired former Copyright Office boss Maria Pallante) also freaked out:
?It is the height of hypocrisy that the Internet Archive is choosing this moment ? when lives, livelihoods and the economy are all in jeopardy ? to make a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity that it supports.?
No, it’s the height of hypocrisy for publishers to attack a basic thing that libraries have done for centuries: lending out books that they own for limited periods of time to support the spread of knowledge — especially given how stingy publishers themselves have been in embracing ebooks and easier access to knowledge.
The argument is that students need e-books while they are staying home. But that?s an argument for spending public funds to purchase or license those resources for public use ? not putting the burden of providing educational materials for free on writers, illustrators, and photographers. Authors also need to eat and pay rent during this crisis.
Again, that argument makes no sense. Because that same argument applies to any library copy of a book.
For what it’s worth, the Internet Archive lets any author who is freaked out about this digital library lending out their books to opt-out of the system. And while I’m sure some authors will argue that opting out shouldn’t be on them, that’s again silly. The system works the way libraries work. Should authors also have to agree before a library can lend their book?
This is all a bunch of nonsense. As we’ve highlighted a few times in recent weeks, the pandemic has really highlighted just how insane copyright has become and how unmoored it is from its original intent of helping to further the spread of knowledge. Instead, it’s used as a giant paywall, to lock up that spread. I know that people have bought into the ever growing idea of permission culture, but take a step back and think about how totally messed up it is that people might possibly have access to the world’s knowledge, while being stuck in their homes during a pandemic… and to have people start yelling “but you don’t have permission to do that.” From an outsider’s perspective, not brought up in the myth of permission-culture, the whole concept would sound ridiculous.
It’s been a few years since we last had to write about the Authors Guild — a group that ostensibly represents authors’ interests, but really acts more like a front group for publishers’ interests (often in opposition to the actual interests of authors). As you may recall, the Authors Guild spent tons of the money authors gave it for dues on suing libraries. Specifically it sued and lost against Hathitrust (a collection of libraries which were scanning books to make a searchable index), and then had the same result with Google and its book scanning project. In both cases, the courts deemed such scanning and indexing as fair use — a transformative use of the work.
Apparently, unable to comprehend that maybe it shouldn’t attack libraries, the Authors Guild is at it again, threatening the Internet Archive and other libraries for daring to start a carefully designed program to lend out copies of some of their scanned works. The system, called Controlled Digital Lending was put together by a bunch of libraries and the Internet Archive to lay out a system that they believe is clearly covered by fair use, by which digital scans of certain books could be made available on loan like any other library book. The whole setup of the Controlled Digital Lending system is carefully laid out and designed to mimic traditional library lending.
One of the most fundamental and socially beneficial functions of libraries is providing broad access to information by lending books and other materials to their communities. To lend materials more effectively, libraries can apply CDL to their collections in order to fulfill their missions. CDL techniques like those described in this Statement are designed to mirror traditional library practices permitted by copyright law.
Properly implemented, CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation. For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an ?owned to loaned? ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.
There’s a joke that’s made its way around copyright circles for years that if libraries didn’t already exist, there’s no way that copyright interests would allow them to exist today. Indeed, in the past we’ve seen various attacks on the institution of libraries from certain authors and publishers. And this latest attack is no different, other than cementing the fact that the Authors Guild really hates libraries:
The CDL fair use theory also relies entirely on a completely outdated and misconstrued conception of the contemporary book market, as explained in our recent blog on CDL?as though publishers were the only ones that had copyright interests that potentially could be harmed. Nowhere does the white paper mention the copyright interests of authors?who generally remain the copyright owners of their works, whether traditionally or independently published, and control most non-traditional book rights.
Authors lose potential income from every unauthorized loan made under the CDL theory. The digital reproductions and loans merely supplant the legitimate sale of ebooks, whether library editions that the library would otherwise license, or ebooks that the author or publisher would sell directly to consumers. And for those books not yet available in ebook format, CDL usurps that market before the author even has a chance.
Even if an author is not currently monetizing her book, it is still usually one of her most important assets. When authors? works go out of print, or copyright termination rights become ripe, authors are entitled to recover any rights licensed to a publisher, and many do. The author may then repurpose the work, update it, or simply reissue it with a new publisher; and, as has become increasingly common today, authors can easily self-publish their older works to bring them back to life. Hundreds, if not thousands, of our members have done so. Stories of older books becoming popular again because of a historical event, or a new film or TV show, for instance, are not uncommon. Authors should be able to profit from that, not libraries or platforms like Open Library.
Got that? Lending books — which the libraries have legally purchased — means that “authors lose potential income from every unauthorized loan made under the CDL theory.” Say what? Under the traditional library system, there is no authorization necessary. Libraries are free to lend out any books in their possession, which this system is designed to mimic exactly. The Authors Guild is flat out saying here that it believes any lending of library books is bad for authors which is crazy.
The Authors Guild (and the Society of Authors in the UK which has sent a similar letter) are threatening legal action over this. The Authors Guild suggests that the ReDigi rulings that said that a company can’t “resell” used MP3s is the controlling case on this issue. And while I think the Redigi case was incorrectly decided on a number of factors, it is difficult to see how that is the same as the Controlled Digital Lending situation — whereby we’re talking about restricted, temporary lending from libraries, of works where the library not only retains the matching physical copy, but also makes sure that if a digital copy is loaned out, the corresponding hard copies cannot be similarly loaned out simultaneously.
If this is another legal fight by the Authors Guild against libraries, it seems highly likely to lose — as was the case with the Hathitrust lawsuit, which cost the Authors Guild (really, its dues-paying members) big time. Though, it is amusing to see a publishing newsletter where I read about this (1) totally ignore the Hathitrust lawsuit, and (2) effectively pen a love letter to the Authors Guild including this sort of nonsense:
In the States, the Authors Guild has demonstrated more than once that it, too, has a formidable legal department in place, headed by the organization?s executive director Mary Rasenberger, a copyright attorney who has spent part of her career working with the US Copyright Office.
Publishing Perspectives readers will recall that the guild issued an effective and blistering response for Judge Hellerstein?s court at the Southern District of New York in the so-called ?CockyGate? case. In that instance, an author had tried to trademark a common word to prevent others using it in titles. The guild was the leading body operating for authors in the incident and achieving a resounding outcome, effectively putting to rest anybody?s hope of capturing a word in common parlance as their own.
It can be anticipated that, should the guild?s legal office become engaged?and such language in its commentary as ?We must stop this Controlled Digital Lending nonsense in its tracks? certainly makes it seem that the legal team is poised to move. It can be expected that Rasenberger will lead the effort.
I mean, sure: we wrote about the silly Cockygate story as well, but I fail to see what that has to do with questions regarding copyright, fair use and libraries. Instead, it seems that the Hathitrust case — which directly involved all of those issues — is more relevant. And yet, magically, that episode is completely absent from the “Publishing Perspectives” piece, which instead drones on and on about how amazing the Authors Guild and Authors Society are.
Perhaps this case will be different, but… so far it seems this effort may only be serving to upset authors. Take, for example, Aram Sinnreich, who has publicly told the Authors Guild to shove off in response to it pushing its member authors to sign a letter “against” Controlled Digital Lending:
But, really, in the grand scheme of things, if you want to know when you’ve gone off the rails entirely, “threatening to sue libraries for lending books they’ve legally obtained” is certainly a good indicator.
Last week, in writing about how this should be the last year (for forty straight years) that no old works have moved into the public domain in the US due to repeated copyright term extensions, I noted that there did not appear to be much appetite among the usual folks to push for term extension. Part of this is because the RIAAs and MPAAs of the world know that the fight they’d face this time would be significantly more difficult than when they pushed through the Sonny Bono Copyright Term Extension Act 20 plus years ago. Not only do they know it would be more difficult, they know that they’d lose. Unlike last time, this time the public is paying attention and can mobilize on the internet.
Indeed, we were surprised a few years back when then Copyright Office boss, Maria Pallante — who has long pushed for copyright maximalism in many different areas — suggested one tiny aspect of potential copyright reform could be to make the last twenty years (the life plus 50 to life plus 70 years) sort of optional. Even this very, very minor step back from the idea of automatic life plus 70 years (or more!) was fairly astounding for what it represented. Copyright interests have never been willing to budge — even an inch, and here was a tiny inch that they indicated they were willing to give up.
Tim Lee, over at Ars Technica, has now (incredibly) got three of the biggest copyright maximalist organizations on the record to say that they will not lobby for copyright term extension, and (even more incredibly) got the Authors Guild (the perpetually pushing for crazy new expansions of copyright law freaking Authors Guild!) to even say that they think maybe we should scale back to life plus 50 again:
The Author’s Guild, for example, “does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works,” a Guild spokeswoman told Ars in an email. “If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible.”
The RIAA and MPAA were slightly more muted, basically saying they “are not aware” of any efforts or proposals and it’s not something they’re pushing:
“We are not aware of any such efforts, and it’s not something we are pursuing,” an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms.
“While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue,” the MPAA told us.
Of course, those statements are kind of funny, because they both know damn well that the only way such proposals would even be a topic for discussion is if they were pushing for them. That won’t mean some nutty copyright holder won’t push for an extension, but the RIAA and MPAA’s recognition that they would lose (and lose spectacularly and embarrassingly) means that no such proposal is going to go anywhere.
Now, let’s see what it will take to get them on board with the Authors Guild plan to start to move copyright terms in the other direction.
