Tag Archives: copyright

Internet Archive Expresses Concerns Over Sweeping Copyright Reform Proposal

You may have heard that, in the waning days of 2020, controversial new copyright provisions were slipped into the end-of-year, must-pass COVID relief bill. Many commenters were troubled by this departure from the ordinary legislative process. Unfortunately, there are more controversial copyright revisions waiting in the wings.

Recently, Senator Thom Tillis released draft legislation which would substantially change the copyright landscape for the worse. It’s called the “Digital Copyright Act,” and our friends at the Electronic Frontier Foundation have described it as disastrous. The proposed Digital Copyright Act would change the rules that govern the Internet in a lot of ways, including requiring automated content filtering that would reduce access to knowledge. While the proposal nods towards making the rules better for Internet users, the draft legislation is still far better for Big Content and Big Tech than it is for libraries, non-profits and regular people.

Even small changes to copyright rules can have substantial consequences for the internet information ecosystem. That is why it is so important that sweeping proposals like this one not be passed in the dead of night, but instead be subject to rigorous study and open comment by everyone. We have drafted a short comment on this proposal which you can review here.

Internet Archive Responds to Proposal for Major Copyright Reform

This week, the Internet Archive submitted a letter in response to a set of questions posed by Senator Thom Tillis (R-NC) regarding potential reforms to the Digital Millennium Copyright Act (DMCA), the law that provides a safe harbor against copyright liability for Internet services who abide by notice and takedown obligations. The Senator’s questions indicate that he is interested in potentially broad changes to not only the DMCA, but to copyright law more generally. His letter states “[r]ather than tinker around the edges of existing provisions, I believe Congress should reform copyright law’s framework to better encourage the creation of copyrightable works and to protect users and consumers making lawful uses of copyrighted goods and software-enabled products, respectively.” The emphasis on ensuring that the law protects users and consumers is welcome, as concern for Internet users was almost entirely absent from the US Copyright Office report on the DMCA that was issued this past summer.

In our response, we express our concern that drastic changes to the notice and takedown provisions of the DMCA:

Could have disproportionately negative impacts on public service nonprofits such as the Internet Archive and our patrons. The Internet Archive is first and foremost a library. We use technology and the Internet to deliver valuable services and collections to the public. The Internet Archive’s goal of being a steward of knowledge is facilitated by the safe harbors, which shield us from liability for the occasional user who uploads infringing content, while allowing the vast majority of legal content to remain accessible.

Therefore, we provide these responses as an online service provider that hosts so-called “user generated content” and as a library with a mission to preserve and provide public access to cultural materials. In our view, while the DMCA system is not perfect, it generally works well and serves its intended purpose. As such, any substantial changes should be discouraged, including the controversial and untested “notice and stay down” system discussed in the Copyright Office report.


You can read our full letter here.

We wish to express our appreciation to the law students at the New York University Technology Law & Policy Clinic for their deft assistance researching and drafting these public comments. It is our pleasure to partner with the next generation of legal scholars who will help shape the future of copyright law.

As always, we invite our patrons and the community of rightsholders who share their digital works with the Internet Archive to express your comments and suggestions.


Judge Sets Tentative Trial Date for November 2021

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.”

Knocking Down the Barriers to Knowledge: Lila Bailey wins IP3 Award

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.”

On September 24, IP3 Awards will also be presented to Matthew Rantanen (Canadian Cree), Director of Technology for the Southern California Tribal Chairmen’s Association and Director for the Tribal Digital Village Network InitiativeGeoffrey C. Blackwell (Chickasaw, Choctaw, Omaha, Muscogee Creek), Chief Strategy Officer and General Counsel for AMERIND, for their work establishing AMERIND Critical Infrastructure, focused on closing the digital divide in Indian Country. Also being honored is Stop Hate for Profit, a campaign that organized a mass boycott of Facebook advertising.

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.

Two major library groups join chorus of support for controlled digital lending

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. 

The Association of Research Libraries (ARL) and the Scholarly Publishing and Academic Resources Coalition (SPARC) joined hundreds of individual libraries and supporters in signing a public position statement in support of controlled digital 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.

ARL concurred, “CDL is a practice rooted in the fair use right of the US Copyright Act and recent judicial interpretations of that right. During the COVID-19 pandemic in particular, many academic and research libraries have relied on CDL to ensure academic and research continuity at a time when many physical collections have been inaccessible.”

The Internet Archive’s Open Libraries program is powered by controlled digital lending and we welcome the support of other libraries. As libraries are closed across the globe because of COVID-19, millions of digitized books are still available for free to be borrowed by learn-at-home students and readers.