Today the Supreme Court resolved a decade of copyright litigation by supporting interoperability and openness, ruling that reimplementing an API by copying its declarations is legal fair use, even (or perhaps especially) when you’re building a competitive service. This was a case of two massive companies – Oracle and Google – fighting over Java, Android, and billions of dollars. But it was also about the quintessential user’s right and one of crucial importance to libraries: fair use. And after last year’s Georgia v. Public.Resource.Org decision, it has become the latest in a long line of Supreme Court decisions broadly supportive of fair use.
In a 6-2 decision, the Supreme Court held that Google’s copying of many declarations associated with the Java SE API (including only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program with their own implementing code) was a fair use of that material as a matter of law. That means that this ruling applies to all APIs, not just the one at issue here.
“This decision is a win for the Open Web. In our digital world, businesses, nonprofits, libraries and individual developers use APIs everyday,” says Brewster Kahle, Internet Archive’s founder and Internet Hall of Famer. “We have seen copyright used as a tool to create enclosures and walled gardens. But the Court was clear: copyright cannot be used to harm the public interest.”
Importantly, the Court held that reimplementing the Java API was fair use even though Google copied the material intentionally. That fact actually supported a finding of fair use. That’s because Google’s purpose was “to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language.” Put another way, Google’s actions were in support of interoperability. And fair use protects it.
In contrast, Oracle sought to profit from the developers’ familiarity by locking them into its own environment and forcing Google to pay for a license–what the Court described as a “tax”–in order to access it. The Court held this kind of “tax”, in derogation of interoperability, did not further the goals of copyright. That was because, it explained, copyright seeks to incentivize the creation of new works. Incentivizing the creation of new works was deemed more important than allowing for the monopolization of aspects of the old. That was particularly true here, where Google copied these lines of code not because of their “creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment.” Enforcing copyright in these circumstances “risks causing creativity-related harms to the public,” frustrating the goals of copyright.
While many hoped that the Court would rule directly on the question of software copyrightability, which may have more squarely helped small projects take on goliaths, this ruling remains a very good thing. It is a win for interoperability, a win for fair use, and a win for the open principles that form the foundation of so much of the internet today.
“We have to wonder whether a system that took ten years and tens of million dollars worth of litigation to reach this outcome reflects a copyright system that is as fair as we need it to be,” says Brewster Kahle. “Today, thank goodness the fair use system was reaffirmed. This decision will have broad, positive benefits for openness, innovation and competition.”
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.
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 non–profits 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.”
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.
Today, we answered an inquiry from Senator Thom Tillis (R-NC) about our digital archiving and lending practices. Our response explains how important controlled digital lending is as a tool for schools and libraries as we all prepare for our digital fall semester. Communities around the country have urgent needs that are not being met by the ebook market. A generation of school children could be left behind if students do not have access to the learning materials they need, in the format they need. Controlled digital lending helps libraries to leverage the materials they have already purchased, within the library tradition and function, to meet the needs of learn-at-home students.
This year, the plans for K-12 and college campuses are changing by the day, but we know that most will have a fall semester take place at least partially online. And our communities need widespread and equitable access to instructional and research materials online.
The Supreme Court held today that copyright protection does not extend to the law – in this case, to the annotations in Georgia State’s annotated code. Justice Roberts explained that the animating principle behind this rule is that no one can own the law. “Every citizen is presumed to know the law,” and “it needs no argument to show . . . that all should have free access to its contents.”
This is a victory for our friends at Public.Resource.Org, the public domain, and the public at large. Free access to the law is core to the ability of our citizenry to fully participate in our democratic society. The Internet Archive has worked with Public Resource for 6 years to make the law fully searchable and downloadable to the public for free. We applaud this outcome and hope that more legal works will come to be available to the public in the coming days and weeks. We are glad this fight is over.
When I was about 20, I fell in love with the love of Vera and Roland, British youth that loved to chat and write about books, Oxford, and love. Roland would go to war. Vera would go to Oxford. They would meet a few times, kiss a few times, and get secretly engaged. He had leave at Christmas 1915. She waited by the phone. His sister called instead. Roland had been killed a few days earlier. Vera was never the same. She became a nurse, and she would write about Roland, her brother, and their two friends, along with her own experiences for the rest of her life. For a long time, she was the only woman recognized as writing about the Great War. I sought to find other women’s stories and compare them to the stories of men. And I did. But I also ran into copyright issues that drove me to law school, to study duration of copyright, and to wait. The wait took over 20 years, but the opening of the U.S. public domain will now be in its second year. Books from 1923 came into the public domain last year, and books from 1924 come into the public domain as of 2020.
Scholars, and especially biographers, have choices: get permission from the families of copyrighted works, rely on fair use, or use public domain works. When I started my dissertation, most of the works I was using as a World War scholar, looking at the war generation writing throughout the 20th century about their experiences (although I didn’t know it), were in the public domain. But before I filed my dissertation, the world had changed. In 1996, foreign works that had previously been in the public domain were suddenly restored by the Uruguay Round Agreements Act, including most of Vera Brittain’s works. In 1998, the Copyright Term Extension Act was passed, freezing the public domain for 20 years. I would be hooded in the Spring of 1998.
Now, as of 2019, the world is moving again. Works from 1923 were released into the public domain last year. That included Vera Brittain’s The Dark Tide (1923), published in England. And now, her second novel, Not without Honour (1924) comes into the public domain in 2020. The war generation books, generally published 1925-1932 will soon be flooding our public domain. And this matters tremendously.
While Internet Archive has many books that are available through their lending system—books that we have access to and read, and while Section 108(h) allows libraries to copy and disseminate non-commercially available books in the last twenty years of their term, this does not allow scholars the freedom to use the books without fear of threats, or use of more than a judge might think acceptable under fair use. This is particularly problematic for biographers, who tend to rely on some sources in ways that families may threaten with a lawsuit (think the Schloss case with the Joyce estate) or publishers that may feel uncomfortable relying on fair use.
In the last twenty years, fair use has developed into a robust tool. Maybe that was partly because the published public domain was frozen? And we’ve taken strides in Best Practices and other means to make fair use vibrant and usable. Much of the work that I was doing would clearly be covered under fair use today. The world is very different from when I was writing about Vera Brittain and her ghosts in the 1990s. I would probably not have gone to law school. But it is still important that works come into the public domain, and that’s the story we are here to tell.
And so, on the second anniversary of the opening of the public domain again, I am re-reading The Dark Tide and Not Without Honour, and looking forward to the books that should shortly come into the public domain in the future. I’m also very excited to sift through the Internet Archive collection for hidden gems – books written in 1923, 1924, and even anticipating the new additions in 2021 from 1925. Oh, the possibilities!
Here’s some of the works I’m particularly excited about, that are part of the war generation, Vera’s generation that I studied so long ago:
Agatha Christie’s The Man in the
Brown Suit (1924) and Poriot Investigates (1924) (she learned about
poisons while working as a nurse in the war, and her husband, Archie Christie
Winifred Holtby (Vera’s best
friend), The Crowded Street (1924),
A.A. Milne, When We Were Very
Young (1924) and we get the first appearance of Pooh in the poem “Teddy
Bear” (1924) (Milne was also in the Great War), and
The first novel of Ford Maddox
Ford’s Parade’s End series, titled Some Do Not, to name a few.
And it’s not just novels and poetry, its art. Käthe Kollwitz’s War series, 1923 also came into the public domain last year.
A Chasm: US versus the rest of the world
Because of our nutty U.S. system – for works first published before 1978, the term is 95 years from publication, many foreign works will be in the public domain for many years in the United States before they are out of copyright in their home country. Take, David Jones’ “The Garden Enclosed” (1924).
But the joy of the public domain in the U.S. is more than the great works; it is also the ephemera – the photographs in newspapers, postcards, films and so much more that have been locked up because they were restored as foreign works. All of these works are now coming into the public domain, and it is glorious. As of January 1, 2020, any work published anywhere in the world before 1925 is in the public domain in the United States.
One of the best features of the Internet Archive is that you can add a filter to any search of the publication year. So, as you search, check “1924”. It doesn’t matter whether the works were published here or in the US, whether they were renewed or had proper notice. They are now in the public domain in the U.S. for all to enjoy unfettered and without restriction.
So, I encourage you to go play on the Internet Archive site and around the world in search of new public domain treasures. Just remember, these works are in the public domain in the U.S. They may be (and likely are) still under copyright in other places around the world.
Elizabeth Townsend Gard holds a Ph.D in European History from UCLA, and is a Professor of Law at Tulane University, where she focuses on the intersection of law and culture, and in particular the role of law in creativity in copyright and trademark. Her work includes the invention of the Durationator, and the host of the popular research podcast, Just Wanna Quilt, exploring the art, craft and copyright of an industry. She is currently a Lepage Entrepreneur Faculty Fellow at the A.B. Freeman School of Business, and the Greenbaum Fellow at the Newcomb Institute, both at Tulane University. For more information on the Durationator and determining copyright can be found at www.durationator.com.
The Internet Archive is excited to announce that we will be celebrating Public Domain Day on January 30, 2020 in our nation’s capitol. We have an exciting line-up of local musicians and artists, as well as projects from around the country – Join Us! The event is free and open to the public.
On Tuesday, the Internet Archive joined Public Knowledge, the Wikimedia Foundation and the Samuelson Law, Technology and Public Policy Clinic from Berkeley Law to brief the Congressional Internet Caucus on efforts to combat misinformation online. Misinformation is a complex issue but one of the root causes is a lack of easy, reliable ways for Internet users to distinguish good information from bad, or authoritative sources from propaganda. The panel highlighted our recent work to weave books into Wikipedia articles, giving users the ability to dig deeper and fact check assertions in just one click.
Announced today, Phillips Academy has received the Hero Award from the Internet Archive for its leadership in adopting controlled digital lending for school libraries. The Hero Award is presented annually to an organization that exhibits leadership in making its holdings available to digital learners all over the world, and when Phillips Academy was renovating its Oliver Wendell Holmes Library, librarian Michael Barker wanted to update more than the physical space. This was also an opportunity to bring the private preparatory high school up to speed digitally – and in the process, share its vast book collection with others.
Barker, Director of Academy Research, Information and Library Services, has embraced Controlled Digital Lending (CDL), where a library digitizes a book it owns and lends out one secured digital version to one user at a time. In this case, the Andover, Massachusetts school owns 80,000 books.
“With the closure of so many high school libraries, this allows us to share the collection we’ve built up over 100 years with all other high schools,” Barker said. “I can’t think of any better way the library could contribute its private resources for a public purpose.”
Phillips, which has roughly 1,100 students in grades 9-12, has been active in the Digital Public Library of America. It has already digitized about 4,000 of its titles published prior to 1923.
With all the books already boxed up for the renovation, the school’s decision to expand its CDL project was clear: “There would never be a better time than now,” Barker said. This summer it shipped most of the remaining volumes to be digitized by Internet Archive at its scanning facility in the Philippines.
Sharing the cost of scanning and shipping with Internet Archive was critical to the digitization process happening, said Barker. The books are expected back early in 2020 and will be placed back on library shelves over spring break.
Rather than most books being on display, the renovated Phillips library includes more open space for collaboration. It was last updated in 1987 and was not wired for a world that included the Internet. Renovations began in early 2018 and the newly updated facility opened to students this fall.
Originally designed like a “book fortress,” Barker said the center of the library now has room for students to study together while some books are on shelves around the periphery. Most books are now in the attic and basement where they can be called up to lending.
“One local benefit of CDL is that students don’t necessarily need to call the book from the attic. With a digital version there is no delay in getting the book,” Barker said.
As Barker awaits the return of the book collection from the Philippines, he is tracking the shipment (which went on two separate ships and was insured). In the meantime, Phillips is preparing to share the news of its vast collection becoming open to students everywhere. Barker is excited to offer the school’s resources openly and said it’s particularly timely as school library budgets are being cut, making it hard for libraries to fulfill their mission.
“The truth of the matter is that some schools don’t have libraries anymore,” Barker said. “If other schools like us got involved in CDL in the same way and shared their copies, many public schools would not have to worry about their students having access to collections in the same way they might be doing now. I encourage others to explore it and jump in. It seems like it can only get stronger the more libraries that join.”
NOTE: Come meet Mike Barker and learn more about Phillips Academy when he speaks at Internet Archive’s World Night Market, Wednesday 10/23 from 5-10 PM. Tickets available here.
The nation’s K-12 school libraries are hurting. Although the student population is rising in many districts, the number of librarians and media specialists dropped by nearly 20 percent from 2000 to 2015. Budgets are being reduced and some schools are no longer able to afford their school librarians, or are simply closing their libraries altogether. The cuts are particularly deep in underserved communities.
Controlled Digital Lending (CDL), the digital equivalent of traditional library lending, holds the promise of broadening access to knowledge for public school libraries, according to Lisa Petrides, PhD, founder of the non-profit Institute for the Study of Knowledge Management in Education. ISKME’s focus is to provide research, tools, and training to help democratize access to education through the practice of continuous learning and collaboration. Research has shown that well-resourced libraries matter, she noted.
“When students don’t have access to school libraries, it impacts learning outcomes. It’s a dire situation in many districts across the country,” said Petrides. “Libraries and the librarians that serve them are intricately connected to pedagogy and curriculum, and are necessary to reinforce the basic tenets of learning, including problem-solving, curiosity, and exposure to new ways of thinking. The school library has been and continues to be a critical link for teaching and learning in our K-12 schools.”
In partnership with Internet Archive, Petrides has amassed a team of librarian partners to create the Universal School Library, a collection of digitized books that can serve as a lending library for those without access to a physical school library. A small grant is funding teams of school librarians working to curate 15,000 book titles. It’s a labor-intensive process selecting fiction and non-fiction titles for the core collection, while ensuring diverse viewpoints and voices are represented and included. A beta version of the Universal School Library is now online at https://archive.org/details/uslprototype, and using CDL, the project team will work with states, districts, and schools to fill in where there are gaps. When the Universal School Library is officially launched in 2020, it will encompass all genres and reading levels, and across cultural, college, and career literacy.
“This has the potential to make a high-quality curated collection available for any student,” Petrides said. “It really is a democratization issue. CDL can be transformative for equal access to education in this country.”
NOTE: Come meet Lisa Petrides and learn more about the Universal School Library when she speaks at Internet Archive’s World Night Market, Wednesday 10/23 from 5-10 PM. Tickets available here.