from the permission-culture dept
There are a variety of opinions concerning the Internet Archive’s National Emergency Library in response to the pandemic. I’ve made it clear in multiple posts why I believe the freakout from some publishers and authors is misguided, and that the details of the program are very different than those crying about it have led you to believe. If you don’t trust my analysis and want to whine about how I’m biased, I’d at least suggest reading a fairly balanced review of the issues by the Congressional Research Service.
However, Kyle Courtney, the Copyright Advisor for Harvard University, has a truly masterful post highlighting not just why the NEL makes sense, but just how problematic it is that many — including the US Copyright Office — seem to want to move to a world of permission and licensing for culture that has never required such things in the past.
Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.
What’s really set Courtney off is that the Copyright Office has come out, in response to the NEL, to suggest that the solution to any such concerns raised by books being locked up by the pandemic must be more licensing:
The ultimate example of this licensing culture gone wild is captured in a recent U.S. Copyright Office letter. Note that this letter is not a legally binding document. It is the opinion of an office under the control of the Library of Congress, that is tasked among other missions, with advising Congress when they ask copyright questions, as in this case.
Senator Tom Udall asked the Copyright Office to give its legal analysis of the NEL and similar library efforts, and it did so… badly.
The Office responded with a letter revealing their recommendation was not going to be the guidance document to ?help libraries, authors, and online outlets,? but, ultimately, called for more licensing. It also continued a common misunderstanding of an important case, Capitol Records, LLC v. ReDigi Inc., 910 F. 3d 649 (2d Cir 2018).
We’ve written about the Redigi case a few times, but as Courtney details, the anti-internet, pro-extreme copyright folks have embraced it to mean much more than it actually means (we’ll get back that shortly). Courtney points out that the Copyright Office seems to view everything through a single lens: “licensing” (i.e., permission). So while the letter applauds more licensing, that’s really just a celebration of greater permission when none is necessary. And through that lens the Copyright Office seems to think that the NEL isn’t really necessary because publishers have been choosing to make some of their books more widely available (via still restrictive licensing). But, as Courtney explains, libraries aren’t supposed to need permission:
Here?s the problem though: these vendors and publishers are not libraries. The law does not treat them the same. Vendors must must ask permission, they must license, this is their business model. Libraries are special creatures of copyright. Libraries have a legally authorized mandate granted by Congress to complete their mission to provide access to materials. They put many of these in copyright exemptions for libraries in the Copyright Act itself.
The Copyright Office missed this critical difference completely when it said digital, temporary, or emergency libraries should ?seek permission from authors or publishers prior? to the use. I think think this is flat-out wrong. And I have heard this in multiple settings over the last few months: somehow it has crept into our dialog that libraries should have always sought a license to lend books, even digital books, exactly like the vendors and publishers who sought permission first. Again, this is fundamentally wrong.
Let me make this clear: Libraries do not need a license to loan books. What libraries do (give access to their acquired collections of acquired books) is not illegal. And libraries generally do not need to license or contract before sharing these legally acquired works, digital or not. Additionally, libraries, and their users, can make (and do make) many uses of these works under the law including interlibrary loan, reserves, preservation, fair use, and more!
And, yes, Congress has already made it clear that libraries hold a special place with regard to copyright:
Libraries can make these uses of their legal acquired books without permission because the copyright system, via Section 109 first sale, maintains the market balance long recognized by the courts and Congress as between rightsholders and libraries. Libraries sit right in the middle of the economic purpose of copyright (we buy the books!) and the access purpose of copyright (we loan the books!) ? or in the Constitutional narrative, ?to Promote the Progress of Science and the Useful Arts? libraries provide unfettered access and freedom to the books they purchase.
When a library legally acquires a book via a sale, it has the right, under the first sale doctrine, to continue to loan that work unimpeded by any further permission or additional fees to the copyright holder. No license is needed. A digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a ?market harm,? it is one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The authors have been paid (as have the publishers) in that first transaction.
Congress, when it legislated the copyright exceptions, made it possible for libraries to fulfill their ?vital function in society? by enabling the lending of books to benefit the general learning, research, and intellectual enrichment of readers by allowing access to these materials. And arguably, now that we are in the 21st century, why should we not use technology to allow this loaning to continue online? Let libraries use technology (the same used by the publishers, for example) to INCREASE access to these works, especially during a pandemic.
Courtney then goes on to point out that the whole “license everything” concept fundamentally eviscerates the concept of ownership of private property. Once we’ve bought something, we should be able to do what we want with it, and the push here to now force libraries to get licenses for books they already own is a direct attack on property rights:
Licenses continue to eviscerate ownership rights for patrons, libraries, and the general public under very restrictive terms. And, these licenses are absolutely not the equivalent of a purchase. These vendors may use the word ?buy it now? or ?purchase? or ?for sale? but, when you read the fine print ? it is absolutely the opposite….
When a library or patron agrees to these licenses, at best they are merely renting or leasing temporary access to these works.
Even worse, because a library has special exceptions to copyright as built into law, when we move into a copyright world, libraries are effectively giving up those rights:
Or, in some licenses, the terms are so limited that libraries or their patrons are restricted from the very uses, exceptions, or exemptions made legal in the Copyright Act. I pulled an example of one of the more common licensing clauses:
?Except as explicitly authorized in this License, you agree not to archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, or use content and information contained on or obtained from the Work….? and ?articles, chapters, and other materials made available via this License may not be used for the purpose of interlibrary loan…?
This license takes away nearly all the copyright exceptions for libraries, and many exceptions for the public as well. Licenses do often restrict use beyond what copyright law might otherwise allow. And the licenses do not have consistent language relating to library uses, so they are all different, and all full of boilerplate limiting terms. What other rights are these licenses interfering with?
And after digging into the variety of ways in which copyright law is structured, Courtney makes it clear that libraries have a clear first sale right to lend out books they have in their possession:
Additionally, under Section 109, first sale, a library can place a book on reserve and let it be accessed or checked out as many times as it can. Each patron uses and returns the book ? and there is no license, no additional payment, and the library or user does not have to seek any further permission from the copyright holder. Some books have been read hundreds of thousands of times on reserves! The author and publisher were compensated for that first purchase, and from there, the access and loaning can continue unfettered.
As for the ReDigi case regarding digital first sale, Courtney points out that the Copyright Office is blatantly misreading it to make it say a lot more than it really does, specifically with regard to how it impacts libraries and their first sale rights:
Here is the main difference: these ReDigi resales the court examined were exact, bit-for-bit replicas of the original sold in direct competition with ?new? mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the working market experiencing harm.
However, again, a library is not a commercial for-profit company. The books they own, via first sale, are not licensed mp3s. There is clearly a distinguishable analysis here.
For digitized copies of legally acquired print books under the first sale doctrine, the substitutionary effect is
far less clear. With most 20th-century books, the vast majority of books in a library?s collection, the market has almost been exclusively print-based. And, for those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.
Secondarily, the ReDigi court raises a significant question as to whether using digitized copies of legally acquired books may be ?transformative? in nature ? a modern fair use test adopted by the U.S. Supreme Court. In the decision, examining the first factor of fair use, Judge Level, who established the concept of transformative fair use in a law review article, explained that a use can be transformative when it ?utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.? This sounds awfully close to correct analysis for modern libraries loaning digital copies of books.
There’s a lot more in Courtney’s analysis, but it is very thorough, and a fairly complete debunking of the Copyright Office’s (and others’) push that the answer to libraries being shuttered due to the pandemic is merely “more licensing.”