Author Archives: Lila Bailey

The Internet Archive Supports Maryland’s Library eBook Fairness Law

Maryland’s modest Library eBook Fairness Law requires publishers that make digital products available to residents of Maryland to also make those same resources available to libraries on reasonable terms. Some publishers have not treated libraries reasonably in the past. Instead, they have arbitrarily raised prices, imposed draconian limits on how libraries can use digital materials, and in some cases, refused to license digital materials to libraries at all. Under these conditions, libraries have had difficulty providing access to essential resources and services for their communities at a time when they are most in need. This is the wrong that Maryland’s law seeks to right, and it is set to go into effect next month.

The Association of American Publishers (AAP) is a powerful Washington, D.C.-based lobbying group that has pushed for ever more power and market control for their billion-dollar publishing company members. In its lawsuit to block Maryland’s Library eBook Fairness Law, the AAP asserts that states are powerless to step in when its members abuse their market power in contractual relationships with libraries. This does not seem right in law or practice–states can and should defend their libraries from predatory practices.

The Internet Archive is defending a lawsuit against four of the world’s largest publishing companies–all members of the AAP–over the most fundamental service that libraries provide, lending books. It is beyond disheartening that the AAP has chosen to go on this attack on libraries during a global pandemic, when schools, teachers, and students are most in need of digital resources. We urge the court to stand with libraries and dismiss the AAP’s lawsuit against the State of Maryland.

The Internet Archive is a 501(c)(3) nonprofit library for the digital age, with a mission to support universal access to all knowledge. Libraries serve communities by providing necessary educational and career materials and other civic services. We appreciate states like Maryland that are working to update laws so that libraries can serve their essential societal function in the digital age.

Three Ways to Celebrate Public Domain Day in 2022

On January 20, 2022, the Internet Archive, Creative Commons and many other leaders from the Open world will honor the treasure trove of works published in 1926 that will enter the public domain next year. The public domain will grow richer with canonical works from authors like Hemingway, Faulkner and Dorothy Parker, silent film classics like Nanook of the North, and beloved children’s stories about Winnie-the Pooh and the Hundred Acre woods, becoming freely available to all.

Due to the recently enacted Music Modernization Act in the U.S., approximately 400,000 sound recordings from the pre-1923 era will join the public domain for the first time in our history. That’s why this year our theme is a Celebration of Sound.

Join us for a virtual party on January 20, 2022 at 1pm Pacific/4pm Eastern time with a keynote from Senator Ron Wyden, champion of the Music Modernization Act and a host of musical acts, dancers, historians, librarians, academics, activists and other leaders from the Open world! This event will explore the rich historical context of recorded sound from its earliest days, including early jazz and blues, classical, and spoken word recordings reflecting important political and social issues of the era.

Additional sponsoring organizations include: Library Futures, SPARC, Authors Alliance, the Biodiversity Heritage Library, Public Knowledge, ARSC, the Duke Center for the Study of the Public Domain, and the Music Library Association.

REGISTER FOR THE VIRTUAL EVENT HERE!

UPDATED JANUARY 10, 2022: We are pausing plans for in-person celebrations. Please celebrate with us online through the virtual event.

The Internet Archive will also host an in-person Dance Party on Thursday, January 20, 2022 at 6pm at 300 Funston Ave in San Francisco. There you can mingle with like-minded public-domain enthusiasts while sipping a Gin Rickey, a Hanky Panky or a Singapore Sling. Dine on shrimp cocktail, cucumber sandwiches or waldorf salad. There will be dance instructors to help you learn the 1920’s dance sensation – the Charleston. Period costumes encouraged. Let’s kick up our heels for the Public Domain!

You can register for the live, in-person event in San Francisco here.

The Internet Archive Canada will host an in-person event at their new HQ in Vancouver, BC, in the historic Permanent building at 330 West Pender Street on Saturday, January 22, 2022.

As well as celebrating The Public Domain, this evening of live music and 1920s inspired h’or d’oeuvres also acts as the official launch party of IAC’s new headquarters.

You can register for the live, in-person event in Vancouver here.

Remembering Sherwin Siy

Photo by Myleen Hollero

Last week the public interest Internet community lost one of its most passionate advocates, and I lost a friend. On July 7th, I learned that Sherwin Siy, Policy Counsel for the Wikimedia Foundation and my classmate at Berkeley Law School, had suddenly passed away at the age of 40.

Sherwin and I began our public interest tech careers together when we were students at the Samuelson Law, Technology & Public Policy Clinic. We were partners on a project helping the Internet Archive understand the legal landscape for archiving and making available television news. From that project and through the rest of my career, I learned so much from working with him, not just about substantive law and policy, but about collaboration and collegiality. He was thoughtful, patient, and kind. He was funny, and so very smart. He will be deeply missed.

You can find remembrances from other colleagues of his from EFF (here) and Public Knowledge (here).

Brewster Kahle named to the Library of Congress’ Copyright Public Modernization Committee

The Library of Congress announced that Brewster Kahle, Digital Librarian and founder of the Internet Archive, has been named to the Copyright Public Modernization Committee (CPMC), with a mission to help modernize the technology-related aspects of the U.S. Copyright Office. More specifically the CPMC will support “the development of the new Enterprise Copyright System (ECS), which includes the Office’s registration, recordation, public records, and licensing IT applications, and will be encouraged to help spread awareness of the Library’s development efforts more broadly.”

The thirteen member panel is composed of leaders from the library and university worlds along with representatives from trade organizations representing the recording and publishing industries, and corporate giants Amazon and Warner Media. Kahle, who holds a BS in Computer Science and Engineering from the Massachusetts Institute of Technology, brings decades of experience in digital library issues, and is an inaugural member of the Internet Hall of Fame.  “I am excited to collaborate to help modernize the  U.S. Copyright Office.  Let’s see how far we can get,” says Kahle.

The first meeting of the CPMC is on July 22, 2021 from 1-4 PM eastern time and is open to the public, by registration only. Register of Copyrights Shira Perlmutter and Library of Congress chief information officer Bud Barton will provide opening remarks, and Library subject-matter experts will provide an update on the development of ECS and other modernization efforts. Attendees will have an opportunity to hear directly from CPMC members and participate in a live Q&A. The meeting will be recorded and made available for viewing after the event.


International Federation of Library Associations (IFLA) backs Controlled Digital Lending

Last week, the International Federation of Library Associations (IFLA) voiced its strong support for the longstanding and widespread library practice of Controlled Digital Lending (CDL). In doing so, they join a host of libraries and library associations in asserting the right of libraries to own, digitize and lend materials online.

IFLA is the leading international body representing the interests of library and information services and their users. It is the global voice of the library and information profession. The COVID-19 pandemic has underlined the need to be able to provide digital access to library collections and CDL provides an effective, lawful tool for doing so. IFLA writes that CDL helps “to fulfill the mission of libraries to support research, education and cultural participation within the limits of existing copyright laws.”

IFLA’s Statement on Controlled Digital Lending, which was approved by IFLA’s Governing Board in May 2021, builds on the U.S.-oriented Position Statement on Controlled Digital Lending, which has been endorsed by 55 institutions and 120 individual copyright experts and librarians, bringing the discussion into the international context. IFLA’s Statement makes a powerful economic and legal case for supporting CDL in all countries around the world.

According to the Statement:

“Licensed eBooks have opened the door to a radical undermining of the traditional public interest functions and freedoms of libraries. These still exist for paper books, but with the advent of licensed eBooks, libraries are no longer free to decide when or what to purchase, with some publishers even refusing to sell to libraries. Controlled digital lending provides an alternative to a licensing approach, and so a means of redressing the balance.”

The Internet Archive’s Open Libraries program is powered by CDL and we welcome the continued and growing support of other libraries. As many libraries remain closed across the globe, millions of digitized books are still available for free to be borrowed by learn-at-home students and readers everywhere.

A Good Day for the Open Web

Photo by Claire Anderson on Unsplash

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.”

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.


Preparing for Our Digital Fall Semester

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.

Read our letter to Senator Tillis here.

The Law is Ruled to be a Public Resource

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.

Working the Public.Resource.org, the Internet Archive provides free access to laws from many states at https://archive.org/details/govlaw