This week, a federal judge issued this scheduling order, laying out the road map that may lead to a jury trial in the copyright lawsuit brought by four of the world’s largest publishers against the Internet Archive. Judge John G. Koeltl has ordered all parties to be ready for trial by November 12, 2021. He set a deadline of December 1, 2020, to notify the court if the parties are willing to enter settlement talks with a magistrate judge.
Attorneys for the Internet Archive have met with representatives for the publishers, but were unable to reach an agreement. “We had hoped to settle this needless lawsuit,” said Brewster Kahle, Internet Archive’s founder and Digital Librarian. “Right now the publishers are diverting attention and resources from where they should be focused: on helping students during this pandemic.”
The scheduling order lays out this timeline:
Discovery must be completed by September 20, 2021;
Dispositive motions must be submitted by October 8, 2021;
Pretrial orders/motions must be submitted by October 29, 2021;
Parties must be ready for trial on 48 hours notice by November 12, 2021.
In June, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC—with coordination by the Association of American Publishers—filed a lawsuit to stop the Internet Archive from digitizing and lending books to the public, demanding that the non-profit library destroy 1.5 million digital books.
Publishers Weekly Senior Writer Andrew Albanese has been covering the story from the beginning. In a July 31st Beyond the Book podcast for the Copyright Clearance Center, Albanese shared his candid opinions about the lawsuit. “If this was to be a blow out, open-and-shut case for the publishers, what do the publishers and authors get?” Albanese asked. “I’d say nothing.”
“Honestly, a win in court on this issue will not mean more sales for books for publishers. Nor will it protect any authors or publisher from the vagaries of the Internet,” the Publishers Weekly journalist continued. “Here we are in the streaming age, 13 years after the ebook market took off, and we’re having a copyright battle, a court battle over crappy PDFs of mostly out-of-print books? I just don’t think it’s a good look for the industry.”
In order to make the vast majority of 20th Century books accessible to digital learners, libraries such as the Internet Archive have been digitizing the physical books they own and lending them on a 1-to-1 “own to loan” basis—a legal framework called Controlled Digital Lending. Publishers refuse to sell ebooks to libraries, insisting on temporary licenses on restrictive terms. This business practice “threatens the purpose, values, and mission of libraries and archives in the United States,” explains Kyle K. Courtney, copyright advisor to Harvard University Libraries. “It undermines the ability of the public (taxpayers!) to access the materials purchased with their money for their use in public libraries and state institutions, and further, it is short sighted, and not in the best interest of library patrons or the public at large.”
“Libraries have always had the right to buy and lend books. It’s at the core of a library’s mission,” said Kahle. “The Internet Archive would like to purchase ebooks, but the publishers won’t sell them to us, or to any library. Instead they are suing us to stop all learners from accessing the millions of digitized books in our library.”
On July 22, 2020, Kyle K. Courtney, Copyright Advisor at Harvard University, spoke at a press conference about the copyright lawsuit against the Internet Archive brought by the publishers Hachette, HarperCollins, Wiley, and Penguin Random House.He holds a J.D. with distinction in Intellectual Property Law and a Master of Science in Library and Information Science (MSLIS) degree. Courtney is a published author and nationally recognized speaker on the topics of copyright, technology, libraries, and the law.These are his remarks:
Part of my work in scholarship is about the roles of copyright and the library landscape. I wrote the white paper on Controlled Digital Lending of library books with my coauthor David Hansen at Duke University Libraries. And it presents the legal rationale supporting the overview document called the Position Statement on Controlled Digital Lending, which has been endorsed by many national library organizations, regional library consortia, specific library systems, themselves, individual librarians, and legal experts. Ultimately, though, this is about how libraries can do what they’ve always done, right? Lend books. The paper looks at the underpinnings of the library’s historical mission through the lens of both fair use and first sale, true critical rights that I think any library uses in their programs, right? Both for lending and preservation. And I discuss how libraries can legally lend digital copies of their print collections using this technology.
But I’d like to point out that a CDL system is not a brand new concept, like Corynne stated: libraries loan books to the public. It’s what they do, for centuries. And libraries do not need permission or a license to loan those books that they have purchased or acquired. Copyright law covers those exact issues. But the difference here, I think, and some of the conflict is that the vendors and publishers have to ask permission, right? They must license. This is their business model. Historically, libraries are special creatures of copyright law; libraries have a legally authorized mandate, by the way, granted by Congress, to complete their mission to provide both access to materials. Congress actually placed all of these specialized copyright exemptions for libraries in the Copyright Act itself. So that’s kind of fun to look at library’s unique role in copyright law, they sit right in the middle, both housing the economic purpose of copyright: “we buy the books, we buy lots of books,” and the access purpose of copyright, which is, “we loan the books out to our users.”
Or if you want to put that in the constitutional narrative: libraries are promoting the progress of science and the useful arts. Libraries have historically provided unfettered access and freedom to the books that they purchase for their communities. Now, because of that, there’s multiple versions of CDL-like systems that are currently used in libraries. But I think the origin of the real legal underpinning concept was first explored by Professor Michelle Wu at Georgetown University School of Law in an article that she wrote that I read many times, “Building a Collaborative Digital Collection.” Later, the Internet Archive formed up the Open Library Program, which Chris talked about, which was nine years ago. And other institutions are exploring this option right in their own individual libraries or part of consortia or within affinity groups.
It’s exciting to see, but at its core, Controlled Digital Lending is about replicating, through the Controlled Digital Lending Process, the legal and economically significant aspects of physical lending. And in other words, let’s put this simply: it continues to preserve the powers in the print. A library has these significant legal usage rights and they have great fiscal value in their collections. Some public library systems have spent millions upon millions of dollars to make their collections accessible to the community. And I believe the CDL structure preserves that value by enhancing access of these works to the public through technology. And as Chris pointed out, it’s the same technology that’s used by publishers to distribute in the commercial marketplace.
Again, this may be about the fear of technology, certainly, but technology should be used to enhance access to materials and do what libraries have always done: increasing access to knowledge by loaning the materials to the public. Just because we’re using technology does not mean that suddenly these acts are new. And in fact, libraries have special authority to provide both access longterm to information and preserve these materials for much longer than the business model of any particular corporation, company, or vendor.
And this is especially true with the 20th Century works that are in libraries, right? They have not been available in the digital world across the board. They call this “The 20th Century Black Hole.” Many 20th Century books are not available for purchase as new copies or in print or digital versions online. And I don’t know if your students are like mine or anyone else or patrons: if it’s not digital, it’s almost like it doesn’t exist. Libraries would like to provide digital access, but we can’t, because these are not available in a licensed format or in a digital format that’s available to loan, but we have them on our shelves.
So as many of our student patrons say, “We want access to these works,” and these could be long lost print works, by the way, that are really not lost; they’re on the shelves of our libraries, just trapped there, and in COVID maybe trapped there for a longer time than anticipated. So imagine the potentially enormous high social and scholarly value and relatively low risk if we make these works available to the public for reading, quoting, citing, adaption, using Wikipedia articles. So that’s kind of the exciting aspect of it. I’m not going to get into great detail, but our principle argument in this paper, which summarizes all these points, is that Controlled Digital Lending is a fair use, which is an equitable rule of reason, that permits libraries to do what they’ve always done. And under the First Sale Doctrine, loan those books to users. Thanks a lot for your time.
On July 22, 2020, Chris Freeland, Director of Open Libraries at the Internet Archive, spoke at a press conference about the copyright lawsuit brought by the publishers Hachette, HarperCollins, Wiley, and Penguin Random House against our non-profit digital library.These are his remarks:
I’m Chris Freeland, I’m a librarian at the Internet Archive and I’m the Director of the Open Libraries Program at the Internet Archive. I’ve been at the Internet Archive for more than two and a half years. Before joining the Archive, I was an associate university librarian at Washington University in St. Louis, and then before that I was the Technical Director of a project called the Biodiversity Heritage Library. And so for more than 15 years, I’ve worked in partnership with the Internet Archive to digitize books and make them as widely available as possible through technology and through copyright.
In that same amount of time, that’s when the Internet Archive was partnering with those one thousand libraries that Brewster just mentioned to digitize nearly four million books. So most of those books, when we were partnering with libraries, most of those books were in the public domain, and that means that those were easily published online. They didn’t need restrictions for use. They didn’t need any kind of controls. But at the Internet Archive, we think that everyone deserves to learn. So our goal is to build a research library with more than four million modern books that we can make available to users all over the world.
Now you may be asking why four million? Four million books is the size of a large metropolitan public library. It’s about the same size as a Chicago Public Library or a San Francisco Public Library. And we think that everyone, regardless of where they live, should have equal and equitable access to a comprehensive library. And so to date, we’ve digitized nearly 1.5 million books on the way towards that four million book goal.
So the way that we lend books to our patrons is through Controlled Digital Lending. So Controlled Digital Lending is a legal practice that makes works accessible that are still in copyright. We started working with Controlled Digital Lending with the Boston Public Library, on a pilot that we called at that time “digitize and lend” those books that were in copyright. Now, nine years later, hundreds of other libraries of all sizes in the US and Canada are also participating in Controlled Digital Lending and they’ve embraced the model.
So here’s the way the Controlled Digital Lending works. We only loan as many copies as we and our library partners own, and those checkouts have time limits and the files are protected by the same digital rights management software that publishers use. It’s not a free-for-all. It’s controlled, that’s the “control” in Controlled Digital Lending. So Controlled Digital Lending helps us make information available, which is incredibly important from my perspective as a librarian. It’s a necessary way to increase equity in our education system, and it’s part of the mission of libraries.
In addition to digitizing, we’re also helping libraries and institutions preserve their collections and to keep them safe and accessible. So let me give you a little example, a story from last year. Marygrove College closed last year, and a central concern for the school’s president, Dr. Elizabeth Burns, and for the Board of Trustees is what do we do with the library? Those 70,000 volumes that are in that library that were in the school that was closing. So after hearing about the Internet Archive’s Controlled Digital Lending program, the college decided to donate the entire library to us for digitization and for preservation, so that the legacy of the college would live on. And so that those books would be available for future scholars.
So in closing my little portion here, I want to leave you with an impact story of why Controlled Digital Lending matters. So we’ve received hundreds of testimonials and published two blog posts that are full of statements from users who have used our lending library while their own libraries and their schools were closed. And one such statement really helped underscore that impact of CDL. And it comes to us from Benjamin Saracco, who is a librarian at a medical center in New Jersey. And Benjamin wrote to us, and to let us know that he was able to find basic life support manuals that were needed by the frontline workers at the medical center where he worked. He needed those and he had to use our library because his physical collection was closed due to COVID-19. It may sound impossible to think, but it’s true. Lives were saved because of Controlled Digital Lending. That is impactful.
Lila Bailey, Esq.—Policy Counsel for the Internet Archive
This week, Public Knowledge, the public interest policy group, announced the winners of its 17th annual IP3 Awards. IP3 awards honor those who have made significant contributions in the three areas of “IP”—intellectual property, information policy, and internet protocol. On September 24, the 2020 Intellectual Property award will be presented to Lila Bailey, Policy Counsel at the Internet Archive.
“She has been a tremendous advocate and leader behind the scenes on behalf of libraries and archives, ensuring both can serve the public in the digital era,” said Chris Lewis, President and CEO of Public Knowledge. “Working at the intersection between copyright and information access, Lila has been instrumental in promoting equitable access to contemporary research through Controlled Digital Lending — the library lending practice currently under threat because of a legal challenge from large commercial publishers.”
“My whole career has been leading up to this moment,” Bailey mused, speaking about her role defending the Internet Archive against the publishers’ copyright lawsuit. “This is what I went to law school to do: to fight for the democratization of knowledge.”
Lila Bailey, center, with lawyers and librarians Michelle Wu, Lisa Weaver, Jim Michalko, Michael Blackwell and Tom Blake in 2019, during visits to Capitol Hill where they helped explain Controlled Digital Lending to key legislators.
As a law school student at Berkeley Law, Bailey was a student attorney at the Samuelson Law, Technology & Public Policy Clinic, where she laid the legal groundwork for the Internet Archive’s Television News Archive.
In private practice at Perkins Cole, Bailey won the Pro Bono Leadership award for her tireless work defending the Internet Archive’s Wayback Machine against a legal challenge.
Bailey later went on to work for Creative Commons, helping to ensure that everyone everywhere has access to high quality, open educational resources. She served as a fellow at the Electronic Freedom Foundation, and later returned to Berkeley Law as a Teaching Fellow to help train the next generation of public interest technology lawyers.
“Now that our lives are largely online, copyright law, which is supposed to promote creativity and learning, sometimes creates barriers to these daily activities. The work I am doing is to try to clear some of those barriers away so we can realize that utopian vision of universal access to knowledge.”
–Lila Bailey
Since joining the Internet Archive as Policy Counsel in 2017, Bailey has focused on building a community of practice around Controlled Digital Lending (CDL). Although the library practice has existed for more than a decade, Bailey has been working with Michelle Wu, Kyle K. Courtney, David Hansen, Mary Minow and other legal scholars to help libraries navigate the complex legal framework that allows libraries to bring their traditional lending function online. Today, with hundreds of endorsers, Controlled Digital Lending defines a legal pathway for libraries to digitize the books they already own and lend them online in a secure way.
“As a copyright lawyer, I find her to be an incredibly inspiring colleague, a natural leader, and great person,” said Harvard Copyright Advisor, Kyle Courtney, who works with Bailey on the CDL Task Force. “I know that her work creates a multiplier effect that can inspire others, like myself, to advocate for greater access to culture and enhance a library’s role in the modern world.”
So what drives this intellectual property warrior forward? “Access to knowledge matters to everyone. It’s the great equalizer. That is what the internet has given us—this vision of everyone having equal ability to learn and also to teach, to read and also to speak,” she explained. “Now that our lives are largely online, copyright law, which is supposed to promote creativity and learning, sometimes creates barriers to these daily activities. The work I am doing is to try to clear some of those barriers away so we can realize that utopian vision of universal access to knowledge.”
Previous IP3 Award winners include Bailey’s mentors Professor Pam Samuelson and Internet Archive founder, Brewster Kahle; along with many of her heroes including professors Peter Jaszi, Lateef Mtima, and Rebecca Tushnet. Be sure to attend the award ceremony on September 24, 6-8 PM ET, by registering here.
“That’s how I think of it now: listening as intimacy. My shoulders dropped. The muscles in my neck and face relaxed. I breathed more deeply.”
—Donald Antrim, “How Music Can Bring Relief During These Anxious Times,” The New Yorker
Santa Cruz-based steel lap guitarist, Bill Walker, performing some “essential music,” in a virtual concert from home.
Every Monday at 9:55 a.m., the concerts begin. Lap steel guitarists. Feminist indie folk bands. Improvisational cellists. For the Internet Archive staff, spread across many continents, these ten-minute concerts that begin and end our work week create an aural bubble where listening together feels intimate, uplifting. For us this music has somehow become, yes, essential. For the artists, zooming in from makeshift home stages, the chance to perform live for our staff of 100+ creates a connection with an audience that has been severed during the pandemic. “It was so nourishing to be supported, not only emotionally, but also financially at a time when musicians are being hit incredibly hard,” said singer-songwriter, Annie Hart. “It made my art feel valued and appreciated and helped me continue to make more.”
The idea to create this impromptu concert series originated with Alexis Rossi, who heads the Internet Archive’s Collections team. Five minutes before our Monday morning and Friday lunch staff zoom meetings, Alexis and Web Archiving Program Manager, Peggy Lee, act as virtual stage managers, getting performers dialed in, audio levels tweaked. The Internet Archive pays performers a small fee and staffers “tip” the artists through paypal or Venmo. “”I have several friends who are full time performers, and shelter in place completely destroyed their ability to work and make a living,” explains Rossi. “So I jumped at the chance to help book acts because I knew that even a little bit of income would help.”
Jess Sah Bi performs original music in in French, Gouro, and English.
“The music series has been a way we bring people into our house, the place where we come together as a community, and have this shared experience together. I love those ten minutes.”
—Peggy Lee, Co-producer, Essential Music
What started as a fun idea has solidified into ESSENTIAL MUSIC: Concerts From Home, a program that we believe could be replicated anywhere, offering organizations many intangible benefits. “The Internet Archive’s live performances have been such a bright spot in my week,” says engineer, Jason Buckner. “They bring such a positive energy to our meetings and you can see it in the faces of everyone watching on Zoom.” Just ten minutes of music seems to have a magical effect on staff: inspiration. “Seeing other creatives excel at what they do helps bind me closer to my work,” agrees Isa Herico Velasco, Internet Archive engineer. “It affirms what we are actually stewarding: the preservation and celebration of humanity.”
Here are some of the Essential Music concerts, recorded and shared by permission of the artists:
Ainsley Wagoner / Silverware (6/16/20)
Ainsley Wagoner creates ethereal music as the artist, Silverware. Ainsley is also a product designer who co-created the super cool OAM project — an experiment in mixing sound, colours, and geometries on the web. “Performing is one of my favorite parts about being a musician,” says Wagoner. “Even though I have recorded music online, nothing beats playing a song live. For now, I don’t have an in-person performance outlet, so it felt really good to do that virtually with the Internet Archive.”
Alex Spoto (6/22/20)
Alex is a multi-instrumentalist who has performed and recorded with Last Good Tooth, Benjamin Booker, and many others. He is a longtime contributor for Aquarium Drunkard and the co-author of Fowre 2: Gone Country, a book of interviews with contemporary Country musicians. He got his start playing classical violin, then ‘old-time’ folk music, and then improvised “free” music. He is currently musically obsessed with cajun fiddling, old cumbia, the jazzier side of Merle Haggard, the polyrhythmic foundation of Saharan folk music, the sly and sensitive folkways of Michael Hurley, and the Internet Archive’s 78 project!
Vickie Vertiz (6/26/20)
The oldest child of an immigrant Mexican family, Vickie Vértiz was born and raised in Bell Gardens, a city in southeast Los Angeles County. Her writing is featured in the New York Times magazine, the San Francisco Chronicle, Huizache, Nepantla, the Los Angeles Review of Books, KCET Departures, and the anthologies: Open the Door (from McSweeney’s and the Poetry Foundation), and The Coiled Serpent (from Tia Chucha Press), among many others.
Vértiz’s first full collection of poetry, Palm Frond with Its Throat Cut, published in the Camino del Sol Series by The University of Arizona Press won a 2018 PEN America literary prize. Vickie is a proud member of Colectivo Miresa, a feminist cooperative speaker’s bureau, her first poetry collection, Swallows, is available from Finishing Line Press. She teaches at the University of California, Santa Barbara.
Jess Sylvester / Marinero (6/29/20)
Jess Sylvester is a Bay Area chicanx songwriter/composer, also known as Marinero. Marinero is known for his dreamy, cholo-fi signature style of taking samples of 60s latin music and adding spacey pop flavors. His newest album, Trópico de Cáncer, is rooted in bossa nova and Tropicália sounds. Watch his profile in Content Magazine.
Sylvester says: “I was actually touched by the introduction given to me right before playing a song for their team. It was a shock to hear the level of research they had done referencing my life and past projects, and in retrospect made sense considering it was the Internet Archive just living up to their name.” Thank you for listening to my music and making me feel heard and supported.”
Ivan Forde (7/6/20)
Ivan Forde is a Guyanese-born, Harlem artist. Forde (b. 1990) works across sound performance, printmaking, digital animation and installation. Using a wide variety of photo-based and print-making processes (and more recently music and performance), Ivan Forde retells stories from epic poetry casting himself as every character. His non-linear versions of these time-worn tales open the possibility of new archetypes and alternative endings. By crafting his own unique mythology and inserting himself in historical narratives, he connects the personal to the universal and offers a transformative view of prevailing narratives in the broader culture.
Zachary James Watkins (7/10/20)
Zachary James Watkins is an Oakland-based sound artist. He was one-half of the defunct duo Black Spirituals and is now part of the current duo Watkins/Peacock. Zachary has received commissions from Cornish, The Microscores Project, The Beam Foundation, Somnubutone, the sfSoundGroup and the Seattle Chamber Players. He has shared bills with Earth, the Sun Ra Arkestra, and designed the sound and composed music for the plays “I Have Loved Strangers.” His 2006 composition Suite for String Quartet was awarded the Paul Merritt Henry Prize for Composition and has subsequently been performed at the Labs 25th Anniversary Celebration, the Labor Sonor Series at Kule in Berlin Germany and in Seattle Wa, as part of the 2nd Annual Town Hall New Music Marathon. Zachary has been an artist in residence at the Espy Foundation, Djerassi and the Headlands Center for The Arts.
Bill Walker (7/13/20)
A gifted composer and instrumentalist, Bill Walker’s music has been described as cinematic, adventurous, and innovative. His solo performances create a rich tapestry of layered sounds, blending electric and acoustic guitars, lap steel guitars, and percussive guit-boxing with state of the art live looping techniques and sound design.
This Santa Cruz, CA-based musician was featured in Guitar Player Magazine for his collaboration with Erdem Helvacioglu on the critically acclaimed CD, “Fields and Fences”. To hear more tune in to his YouTube channel.
Jennifer Cheng (7/17/20)
Jennifer S. Cheng’s work includes poetry, lyric essay, and image-text forms exploring immigrant home-building, shadow poetics, and the feminine monstrous. She is the author of MOON: LETTERS, MAPS, POEMS, selected by Bhanu Kapil for the Tarpaulin Sky Award, and HOUSE A, selected by Claudia Rankine for the Omnidawn Poetry Prize. She is a 2019 NEA Literature Fellow and graduated from Brown University, the University of Iowa, and San Francisco State University.
Jess Sah Bi (7/17/20)
Jess Sah Bi, with his musical partner, Peter One, is one of the most popular musical acts in West Africa, performing to stadium-sized audiences at home in the Ivory Coast and throughout Benin, Burkina Faso, and Togo. Their album, Our Garden Needs Its Flowers, originally thrust them into stardom in the late ’80s. The album was inspired both by classic American country and folk music and the traditions of Ivorian village songs, but it focused thematically on the political turmoil of the region. Songs are sung in French, Gouro, and English.
Theresa Wong (7/24/20)
Theresa Wong is a Berkeley-based composer, cellist and vocalist active at the intersection of music, experimentation, improvisation and the synergy of multiple disciplines. Bridging sound, movement, theater and visual art, her primary interest lies in finding the potential for transformation for both the artist and receiver alike. Her works include The Unlearning (Tzadik), 21 songs for violin, cello and 2 voices inspired by Goya’s Disasters of War etchings, O Sleep, an improvised opera for an 8 piece ensemble exploring the conundrum of sleep and dream life. In 2018, Theresa founded fo’c’sle, a record label dedicated to adventurous music from the Bay Area and beyond. Theresa has shared her work internationally at venues including Fondation Cartier in Paris, Yerba Buena Center for the Arts in San Francisco, Cafe Oto in London, Festival de Arte y Ópera Contemporánea in Morelia, Mexico and The Stone and Roulette in New York City.
After her performance, the artist wrote, ““I could sense the spirit reaching out beyond glass and pixels, sparking back to life that basic need of connecting with others.”
On July 22, 2020, Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, spoke at a press conference about the copyright lawsuit against the Internet Archive brought by the publishers Hachette, HarperCollins, Wiley, and Penguin Random House.These are her remarks:
Good afternoon. Very happy to be here with you today. The Authors Alliance has several thousand members around the world and we have endorsed the controlled digital lending as a fair use and I think that this is a lawsuit I hoped would never happen. Because controlled digital lending has been going on for such a long time, it’s really tragic that at this time of pandemic that the publishers would try to basically cut off even access to a digital public library like the Internet Archive is running.
I don’t know about your library, but my libraries in California are closed. I can’t get any books out of even the University of California Berkeley Library at this point, the whole campus is closed, and so while I haven’t been using the Open Library for my research purposes because they don’t have the books in it that I need, I do think that that it’s just a heartless, tragic thing that this lawsuit is really trying to stop a very positive thing that Internet Archive has been doing.
I’m one of the legal scholars who has endorsed the controlled digital lending statement. I think that even under some second circuit opinions, one can say that the Open Library has actually a utility-enhancing transformative use. It’s certainly nonprofit, it’s educational, and it promotes literacy and many, many positive things. I think that the idea that lending a book is illegal is just wrong.
I would actually like to point out that in Germany, where copyright laws are generally stronger than in the United States, that the Darmstadt Technical University was able to succeed in its non-infringement claim for digitizing a book, and here’s the important point: just because the publisher wanted to license an ebook to that library, the Court of Justice of the European Union said it’s not an infringement for the library to actually digitize one of its own books and make that book available to the public. So if that’s true in Germany, I think it should be true in the US as well.
About the speaker:
Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley. She is recognized as a pioneer in digital copyright law, intellectual property, cyberlaw and information policy. Since 1996, she has held a joint appointment at Berkeley Law School and UC Berkeley’s School of Information. Samuelson is a director of the internationally-renowned Berkeley Center for Law & Technology. She is co-founder and chair of the board of Authors Alliance, a nonprofit organization that promotes the public interest in access to knowledge. She also serves on the board of directors of the Electronic Frontier Foundation, as well as on the advisory boards for the Electronic Privacy Information Center , the Center for Democracy & Technology, Public Knowledge, and the Berkeley Center for New Media.
Put simply, the campaign asks Congress to clarify libraries’ right to buy and lend books today as they have done for centuries.
Today, amidst a skyrocketing demand for digital books, many books are not available on digital shelves at any price because there are no commercially available digital versions of older titles. This gap limits how libraries can serve their patrons.
“Many libraries are currently closed, and sadly it looks like they may be for months to come,” said John Bergmayer, Legal Director of Public Knowledge. “We need to make sure that libraries can continue serving their communities, not just during the pandemic, but after, as tightened budgets put the squeeze on library services and limit the scope of their collections.”
Filling the Gap with Controlled Digital Lending
Libraries have begun making and lending out digital versions of physical works in their collections based on current legal protections—a practice called Controlled Digital Lending, or CDL. As Public Knowledge’s Let Libraries Fight Back campaign explains:
CDL is a powerful tool to bridge the gap between print and electronic resources. Under CDL, a digital copy of a physical book can only be read and used by one person at a time. Only one person can “borrow” an electronic book at once, and while it is being lent electronically, the library takes the physical book out of circulation.
CDL allows libraries to reach their patrons even when those patrons can’t make it to the physical library — a problem that’s been more prevalent than ever during the pandemic. Without programs like this, library patrons are prevented from accessing a world of content and information — and low-income, rural, and other marginalized communities are hit the hardest.
However, Public Knowledge acknowledges that the challenge extends beyond print materials. “Controlled Digital Lending makes it so that a library’s existing print collection is more useful, and can be accessed remotely,” explained Bergmayer. “But we also need to make sure that libraries can acquire digital-native books and other media under the same terms they have always operated under.”
This week, two major library organizations affirmed their commitment to the longstanding and widespread library practice of digitizing physical books they own and lending out secured digital versions. The practice, controlled digital lending (CDL), is the digital equivalent of traditional library lending.
ARL and SPARC collectively represent over 300 academic and research libraries in the U.S. and Canada. ARL advocates on behalf of research libraries and home institutions on many issues and its members include government institutions, including the National Library of Medicine and the National Archives, as well as the continent’s largest land grant institutions and Ivy League colleges. SPARC focuses on enabling the open sharing of research outputs and educational materials, arguing that such access democratizes access to information knowledge and increases the return on investment in research and education.
Announcing their support, SPARC said, “CDL plays an important role in many libraries, and has been particularly critical to many academic and research libraries as they work to support students, faculty, and researchers through this pandemic.” SPARC also issued a call to action to others in the library community to add their support.
For the last eight weeks, our 78s Dating Team has been combing through the history of musical recordings. Among our 78s collection of 188,000 sides sat a backlog of 40,000 discs in need of more data. Our team of book scanners, locked out of their libraries, got to work, pouring through guides to find a review or publication date. Often, discographies revealed nothing. That’s when our team turned to web sleuthing. What we discovered is that behind each disc lies a story—sometimes hidden, mostly forgotten with the passage of time, often magical.
Released in 1966, just two years after the original version written by Van Morrison was released by Them, this version of Gloria is a cover completely in Spanish. The long list of covers of this song throughout history, including versions by Patti Smith and The Doors, rarely includes this version. Gloria provides strong evidence that rock and roll music had gone global by the mid-1960s.
Giter Bruder nicht gechapt is a Yiddish theatre song from 1907. According to the translation, this song is about how to deal with sexual harassment, as told by cis-female, cross-dressing Yiddish Vaudeville star, Pepi Litman (1874-1930).
The chorus, roughly translated:
Good brother, don’t grab, grabbing is no good.
If you grab I’ll hit you back, I’ll beat you bloody.
Oy, you’ll get beaten up, your head will fall off.
Then you’ll know, young man: if you grab, you’ll get burnt.
Pepi was known for performing in men’s clothing on stage and is often considered a proto-Drag King. Really cool to find such an early example of drag performance, from a Jewish vaudeville performer popular more than 100 years ago!
Sister Rosetta Tharpe is often considered the “Godmother” of Rock and Roll guitar and singing. Rock and Roll pioneers, Little Richard, Chuck Berry, Elvis Presley, Carl Perkins and Jerry Lee Lewis credit Sister Rosetta for inspiring their musical styles. But Sister Rosetta has only recently been recognized for her contribution to the genre—inducted into the Rock and Roll Hall of Fame just two years ago.
“The Gospel of the Blues – Sister Rosetta Tharpe” by Brett Jordan is licensed under CC BY 2.0
A guitar prodigy in her church community, Sister Rosetta became a household name in gospel music at a young age and ruffled feathers when she transitioned to more secular music. At a time when it was difficult to be a Black, female, electric guitar player, Sister Rosetta broke every conceivable boundary on her road to success. On an early tour across the United States she had a kitchen and beds installed in what may have been the first music tour bus. Why? Many venues would not allow her to have a meal in their establishment because she was Black. Just like her powerful voice, Sister Rosetta was a force of nature that could not be stopped.
You may know Pandit Ravi Shankar as the sitar virtuoso who taught George Harrison of The Beatles how to play the sitar. While dating the 78s, we stumbled upon this fantastic record featuring Shankar’s absolute mastery of the sitar. Pressed in Pakistan and recorded in India, this 78 recording is a rare gem.
Known as “The Last of the Red Hot Mamas,” Sophie Tucker was an amazing vaudeville/Jazz/Jewish singer who was hugely popular in the 1910s-1930s. She toured internationally and often played to Jewish crowds, singing in Yiddish. Her Yiddish records were banned during Hitler’s era for evoking Jewish culture. Tucker had a lengthy career in show business even after the vaudeville era died out, performing up until just weeks before her death in 1966 at the age of 80. This is a 1951 re-recording of a song from her heyday, originally recorded in 1927.
This is probably the wildest song I have found in the 78s collection! So wild in fact that it was banned from all major radio networks as “immoral and wicked.” What radio censors didn’t understand was that Ingle was poking fun at smokers, drinkers and philanderers. Thanks to their ban, his single became a big hit. Red Ingle is one of the more prolific novelty and comedy performers of the late 1940s and early 1950s, having started with Spike Jones and His City Slickers. Enjoy this lovingly restored version!
This record comes from a complete set of Balinese gamelan music from 1928. Gamelan is a type of percussion ensemble traditional to the Javanese, Sundanese, and Balinese cultures. Described as music for temple festivals and death rituals, the set is the first and only commercially released Balinese music prior to World War II. We were able to find the descriptions captured by the ethnomusicologist who recorded this set and even found films made of the performances in the early 1930s!
One phenomenon that the 78s Dating Team discovered was the “Laughing Record.” Throughout the collection we kept coming across records with seemingly little content aside from people laughing hysterically (or manically depending on your impression). As we discovered more and more versions of these slightly creepy recordings, we looked more deeply into their origins. It turns out that The Okeh Laughing Record is one of the most enduring novelty records ever recorded! The Library of Congress researched its origins and traced it to a recording made by an opera singer in Germany in 1920. Nobody knows why the original performers were laughing, but that is the beauty of these recordings—laughter is a universal language. The Library of Congress estimates that more than one million pressings of this record were sold. To learn more about this mysterious, maniacal genre, read the Library of Congress essay here.
Everyone knows the famous Elvis Presley tune Hound Dog that skyrocketed to fame in 1956, but they may not have heard of this version sung by “Scat Man” Crothers. That’s because Crothers is a sound-alike singer for the Tops budget record label! Tops was one of many record labels that made its profits by recording knockoff covers of hit songs with sound-alike singers, for sale at a discounted price. Tops would even squeeze four songs onto each record—a big bang for your buck (or rather, 39 cents, the price tag on a Tops record in the 50s)!
We discovered this fantastic record from 1949 by someone named Shorty Muggins and immediately wondered about Shorty’s background. It turns out Got a Great Big Shovel is one of only four sides recorded by jazz performer and member of The Rat Pack, Sammy Davis Jr., under the pseudonym “Shorty Muggins.” He only recorded under this name for Capitol to separate his blues recordings from his other work. This record is a great early snapshot of a little known part of Sammy Davis Jr.’s prolific career.
EPILOGUE: To date, the 78 Dating Team has added 13,272 reviews to the 78 Collection, including recording dates and interesting historical information. You’ll find our 13,000 reviews, like hidden nuggets of gold, tucked away after the item description.
78 DATING TEAM: Alex Paananen, Annie Coates, Anthony Young, Cheryl Creed, Chris Moses, Joe Ondreicka, Mike Wankoff, LaDonna Hartmann, Lauretta Doellman, Mandy Weiler, Osamu Sueyoshi, Richard Greydanus, Tabby Garbutt (for a few days!), Taylor Kelsey, Zelda Lacoss, Tim Bigelow – manager!
ABOUT THE AUTHOR:Liz Rosenberg is an audio engineer and audio archivist based in Philadelphia, PA. She helped start the Great 78s Project as a transfer engineer and project lead and now leads the 78rpm Dating Blitz Project. Liz also enjoys operating audio, video, lighting and projection for live events in Philadelphia, as well as producing music in her home studio.
Long before the Covid-19 pandemic, before the righteous uprisings for racial justice swept across the world, the Venerable Tenzin Priyadarshi decided to open his new memoir with this quotation:
“It is no measure of health to be well adjusted to a profoundly sick society.”
–J. Krishnamurti
As a six year old, the young Tenzin began having visions of an unknown place and the face of a man draped in saffron robes. At ten, he left his boarding school in India to set off—Huck Finn-like—in search of an answer to those waking dreams. As the scion of a prominent Brahmin family, Venerable Tenzin could have remained “well adjusted” to the role Indian society had created for him. Instead he leaned in toward the unknown. He followed his instincts, which led him to a small Japanese Buddhist Temple near Vulture’s Peak, Buddha’s favorite retreat in Rajgir, India.
Thus begins the new memoir, “Running Toward Mystery: The Adventure of an Unconventional Life,” by the Venerable Tenzin Priyadarshi. On June 5, 2020, the Internet Archive invited this ordained Tibetan Buddhist monk to explore what his life lessons have to say about this tumultuous moment in history. The Venerable Tenzin selected June 5th because it is Saka Dawa, the day celebrating Buddha’s birth, enlightenment and passing—said to be especially auspicious for acts of kindness and compassion.
The event began with a moment of reflective silence, “in solidarity with all that is happening around us and affects us deeply,” Venerable Tenzin proclaimed. “Reflective silence hopefully generating a sense of compassion.” He was joined in conversation by former diplomat and human rights policy leader, Eileen Donahoe. “The hope is we can explore how inner spiritual transformation plays a role in the world,” she laid out. “And it’s potential to bring about understanding of our common nature and common destiny.”
Ven. Tenzin Priyadarshi is the first Buddhist chaplain at the Massachusetts Institute of Technology and CEO of the Dalai Lama Center for Ethics and Transformative Values
“Lack of empathy is a public health issue.”
–Venerable Tenzin Priyadarshi
An encounter with Mother Theresa challenged the Venerable Tenzin’s sense of certainty about his true path, teaching him to reevaluate constantly learning and unlearning. “One of the things we are recognizing today in a world full of false certainties and biases is that there is a lot of unlearning to be done,” he said. “Unlearning is important as a process before we can learn anything new.”
For the one hundred audience members, the question weighing most heavily on their hearts and minds centered on justice and social change. The author challenged the notion that banking, legal circles or law enforcement could “magically” change without deep unlearning and learning within those ranks. “I, as a Buddhist, am a big proponent of training,” the Venerable Tenzin explained. “Empathy training is as important as financial training. Compassion training is as important as learning about science, math and literature. Criticism of systems is not enough. We must respond with training mechanisms. Lack of empathy is a public health issue, and we must treat it as such.”
In this moment when millions are in the streets demanding change, this Buddhist monk acknowledged the profound tension between action and contemplation. “Introspection must be a precursor to action,” he proclaimed. “Deeper changes will actually come from this sense of awakening. When we truly recognize that there is no I without you. That there is no I without the other. That our sense of happiness is deeply intertwined, is deeply interconnected. As long as we ignore that lesson of life, everything else is window dressing.”
