Today, the Internet Archive, alongside a coalition of public interest organizations, library groups, and consumer advocates, supports Senator Ron Wyden’s call for the Federal Trade Commission (FTC) to protect consumers in the digital marketplace. In a letter to FTC Chair Andrew Ferguson, we urge the Commission to clarify what constitutes a true “sale” of digital goods. In an era where digital purchases can vanish without warning, true sales are exceedingly rare. The public deserves transparency and, ultimately, the same enduring ownership rights they expect when buying physical items—the rights to use, preserve, and transfer.
Real-world examples have shown how easy it is for these rights to be undermined in the digital marketplace: from Amazon’s deletion of Orwell’s classic 1984 from Kindles, to Microsoft’s closure of its ebook store, to Sony stripping purchased Discovery shows from users’ libraries. These incidents expose the gap between consumer expectations of a sale and corporate practices that fall far short of true ownership. When companies advertise a “sale,” but retain the power to revoke access, it is not just misleading—it erodes public trust, undermines libraries’ ability to preserve access to knowledge, and harms everyday people who believe they are purchasing something permanent.
Our message to the FTC is clear: if digital goods can be deleted, disabled, or restricted after purchase, they should not be marketed as “sales.” With strong federal guidance on what it means to truly own digital products, consumers, creators, libraries, and the public can enjoy a more trustworthy and transparent digital future.
Read the full letter urging the FTC to stand up for digital ownership rights here.
Yesterday, every major newspaper in the UK had the exact same headline, demanding the government “Make It Fair” by ensuring that the country’s copyright laws make it impossible, or at least very expensive, for AI models to be trained there.
This stunt is apparently a response to the UK’s open consultation on the topic of AI and Copyright that welcomed anyone with an interest in the subject to weigh in on the government’s proposed “plan to deliver a copyright and AI framework that rewards human creativity, incentivises innovation and provides the legal certainty required for long-term growth in both sectors.”
There are, of course, legitimate concerns surrounding AI development and its impact across all sectors of society. While this consultation is ostensibly focused on commercial players, libraries and archives—and the public they serve—would be affected by possible sweeping new copyright rules. These are mission-driven organizations that can help with giving citizens historical background to current issues and help counter propaganda campaigns, among other social benefits.
Without a change to its current law, universities and libraries in the UK might not be able to work with universities in other countries on many research projects. While we urge the UK government to retain some form of noncommercial exception for text and data mining (TDM), as we point out in our submission, the current version is burdensome—for example, requiring that any digitized versions of physical materials made for the purpose of one project be scanned again and again for any other projects. Non-commercial actors, many of which are government-funded, should be encouraged to work together and be efficient, not to have to digitize the same materials over and over.
Unfortunately, libraries and other cultural heritage institutions do not control the front pages of newspapers. Nevertheless, we hope the UK government will pay attention to what such noncommercial public interest organizations have to say about the future of our information ecosystem and the development of AI tools that work for everybody.
You can read the Internet Archive’s full comments here.
As we celebrate Fair Use/Fair Dealing Week, we are reminded of all the ways these flexible copyright exceptions enable libraries to preserve materials and meet the needs of the communities they serve. Indeed, fair use is essential to the functioning of libraries, and underlies many of the ordinary library practices that we all take for granted. In this blog post, we wanted to describe a few of the ways the fair use doctrine has helped us build our library.
Fair use in action: Web Archives and the Wayback Machine
The Internet Archive has been archiving the web since the mid-1990’s. Our web collection now includes more than 850 billion web pages, with hundreds of millions added each day. The Wayback Machine is a free service that lets people visit these archived websites. Users can type in a URL, select a date range, and then begin surfing on an archived version of the web.
Web archives are used for a variety of important purposes, many of which are themselves fair uses. News reporting and investigative journalism is one such use of the Wayback Machine. Indeed, thousands of news articles have relied upon historical versions of the web from the Wayback Machine. Just last week, 13 links to the Wayback Machine were used in a CNN story about an Ohio GOP Senate candidate’s previous statements that were critical of former President Trump. Our web archive also becomes an urgent backup for media sites that are shut down suddenly, whether by authoritarian governments or for other reasons, often becoming the only accessible source both for the authors of these stories and for the public. Another important purpose web archives can serve is as evidence in legal disputes. Attorneys use the Wayback Machine in their daily practice for evidentiary and research purposes. In 2023 alone, the Internet Archive attested to 450 affidavits in cases where Wayback Machine captures were used as evidence in court.
The Wayback Machine also makes other parts of the web, such as Wikipedia, more useful and reliable. To date, the Internet Archive has been able to repair over 19 million broken links, URLs, that had returned a 404 (Page Not Found) error message, from 320 different Wikipedia language editions. There are many reasons, including bit rot and content drift, why links stop working. Restoring links ensures that Wikipedia remains an accurate and verifiable source of information for the public good. And we hope to build new tools and partnerships to help create a more dependable knowledge ecosystem as more and more content on the web is created by generative AI.
The Fair Use doctrine is broadly considered to be what makes web archiving possible. Without it, much of our knowledge and cultural heritage–huge amounts of which are now artifacts in digital form–would be at risk. In today’s chaotic information ecosystem, safeguarding this material in an open, accessible, and transparent way is vital for history and vital for democracy.
Fair use in action: Manuals collection
Whether you are an individual who has rendered an appliance useless because you lost the instructions, or a professional mechanic looking to fix an old vehicle, owners’ manuals are invaluable. As the right to repair movement has amply demonstrated, copyright should not stand as an obstacle to using machines you’ve bought and paid for. This is a place where fair use can shine.
Over the years, the Internet Archive has received manuals, instruction sheets and informational pamphlets of all kinds. The Manuals collection has well over a million items—or users to access 24/7 at no cost. This resource gives people the right to repair and extend the life of their products. Whether you are a rocket scientist needing to operate your space shuttle, a mechanic who needs to repair a vintage VW Bug, or a curious kid trying to fix up your mom’s old computer, having free online access to the technical documentation you need is essential. And in many cases, there would appear to be no other way to get access to this crucial information.
Some preserved manuals are a single printed page with poorly constructed diagrams. Others are multi-volume tomes that give exacting details on operation of a complex piece of machinery. These materials are more than instructions or a list of components. They reflect the priorities and approaches that companies and individuals take with products, as well as the artistic and visual efforts to make an item clear to the reader.
This collection is a cool example of how fair use provides a framework for the Internet Archive to share critical knowledge with consumers. At the same time, it provides a historical timeline of sorts for innovation and the development of technology.
From preserving our digital history to providing access to manuals of obsolete devices, fair use helps libraries like ours serve our community. And while there are no doubt a variety of commercial projects that properly rely on fair use, fair use is at heart about the public good. As we celebrate Fair Use week, we should remember the crucial role it plays, and ensure that we preserve and protect fair use for the good of future generations. For more on events and news on Fair Use/Fair Dealing Week, visit FairUseWeek.org.
Last week saw a massive outpouring of support for the Internet Archive and our legal positions from prominent library and nonprofit organizations, as well as hundreds of librarians and academics, who filed amicus (“friend of the court”) briefs in the Hachette v. Internet Archive Second Circuit appeal. Read on to learn why they believe our appeal should succeed.
American Library Association and Association of Research Libraries. This brief supports the Internet Archive’s position that our use of Controlled Digital Lending is a nonprofit educational use rather than a “commercial” one, and urges the Court to consider the broader impact its decision will have on a host of everyday library practices that rely on fair use. “Libraries rely on fair use at every step in a typical digital preservation workflow, from cataloging to access.” Read the full brief here.
Authors Alliance. This brief voices the strong support of authors for the Internet Archive and controlled digital lending. “Authors want and need libraries to purchase their books, but the copyright system has never required libraries to pay for those books again and again in order to provide readers with access in formats relevant to them in light of evolving technology.” Read the full brief here.
Center for Democracy & Technology, Library Freedom Project, and Public Knowledge. This brief focuses on the significant privacy issues at play in this case. “Readers should not have to choose to either forfeit their privacy or forgo digital access to information; nor should libraries be forced to impose this choice on readers. CDL provides an ecosystem where all people, including those with mobility limitations and print disabilities, can pursue knowledge in a privacy-protective manner.” Read the full brief here.
Copia Institute. This brief raises the important First Amendment considerations embodied in fair use, arguing that the district court decision rejecting Internet Archive’s fair use defense put copyright law in conflict with the Constitution. “Copyright law should want to promote access to works, because it does nothing to promote progress if the law incentives the creation of works that no one can actually enjoy. In this case, enabling the books that were already lawfully readable to be read is what copyright law should instead be glad for the Internet Archive to do.” Read the full brief here.
Copyright Scholars. In this brief, 11 prominent copyright scholars argue forcefully for the Second Circuit to overturn the district court’s decision. “By eliminating the ability of libraries to use CDL as a means of ensuring long-term affordable digital access to their collections, publishers threaten the core functions of the library—acquiring, preserving, and sharing information. Avoiding those public harms urges a finding of fair use.” Read the full brief here.
eBook Study Group, Library Futures Project, EveryLibrary Institute, ReadersFirst, SPARC, ASERL, BLC, PALCI, Urban Libraries Unite and 218 individual librarians. This brief explains the history and development of CDL, how deeply embedded the practice is today, and urges the appellate Court not to disrupt this long-standing and widespread practice. “CDL has become a critical part of library practice in the United States because it provides a reasonable way to offer digital access to libraries’ legally acquired collections. Over 100 libraries across the United States rely on a CDL program to distribute their collections, particularly for out-of-print works, reserves, or for works that are less frequently circulated.” Read the full brief here.
HathiTrust. Digital Library consortium HathiTrust cautions the appellate court not to follow the district court’s ruling that IA’s use was “commercial” or harmed the publishers market, and warns against a broad ruling that could sweep in many other digital library practices. “[The district court’] ruling has been widely perceived by libraries as a threat to lending of digital copies in general, or even “part of a broader historical push to make libraries obsolete.” Neither the record in this case nor the applicable law supports such a result.” Read the full brief here.
Intellectual Property Law Professors. This brief focuses entirely on the district court’s deeply problematic ruling the the Internet Archive’s controlled digital lending program is “commercial.” “While there are many commercial fair uses, the Internet Archive’s digital lending program falls on the specially favored nonprofit, noncommercial side. The District Court therefore erred in interpreting “commercial” so broadly as to encompass the Internet Archive’s nonprofit lending.” Read the full brief here.
Kevin L. Smith and William M Cross. In this brief, two library and information scholars and historians with deep expertise regarding libraries and archives explain that “CDL is just one of numerous innovations in library services that have been developed and implemented through many decades and can be adapted to legal requirements. This case presents an opportunity for the Court to make clear that libraries, acting within the law, have the imperative to deploy technologies and build innovative services in furtherance of broad access to information.” Read the full brief here.
Law Library Directors, Professors and Academics. Over 50 law library directors, professors, librarians, and graduate students signed onto this brief arguing that the district court did not appropriately consider the public benefits of CDL. “Neither the public nor authors, both of whom are the intended beneficiaries of copyright, benefit from libraries spending public or community funds on the same content repeatedly instead of acquiring new content. The logical consequence is that the public has access to fewer authors and works, fewer authors get wide exposure, and fewer works are preserved for future generations.” Read the full brief here.
Wikipedia, Creative Commons, and Project Gutenberg. Three prominent open knowledge organizations filed this brief focusing on the damage the lower court ruling could do to all nonprofit uses of in-copyright material. “The district court’s decision contains factual and legal errors that, if endorsed by this Court, could threaten the ability of all nonprofits to make fair use of copyrighted material.” Read the full brief here.
The mouse that became Mickey will finally be free of his corporate captivity as the copyright term of the 1928 animated Disney film, Steamboat Willie, expires along with that of thousands of other cultural works on the first day of 2024.
The year 1928 brought us a host of still relevant, oft-revived and remixed culture, from H.P. Lovecraft’s classic horror story, “Call of Cthulhu” (originally published in Weird Tales; now currently a popular video game), to the Threepenny Opera, a critique of income inequality and the excesses of capitalism that is surprisingly on point for our current era.
And further, classic works of literature such as Orlando by Virginia Woolfe, Well of Loneliness by Radclyffe Hall, and Black Magic by Paul Mourad; children’s literature like House on Pooh Corner by A. A. Milne, which introduced the character Tigger, and Millions of Cats by Wanda Gág; movies like Charlie Chaplin’s The Circus, and Buster Keaton’s The Cameraman; and music like Dorothy Field’s “I Can’t Give You Anything But Love, Baby” and Cole Porter’s “Let’s Do It, Let’s Fall in Love” will grow the rich set of materials that are freely available to all of us as part of the public domain.
Join us for a virtual celebration at 10am PT / 1pm ET on January 25, 2024, with an amazing lineup of academics, librarians, musicians, artists and advocates coming together to help illuminate the significance of this new class of works entering the public domain!
Of course our program wouldn’t be complete without a discussion of Generative AI, which to some has become a new kind of Eldritch God unleashed upon humanity—a Chtulhu of sorts—out to alter or control human reality. New AI technologies have raised all kinds of questions about human creativity, and the various monsters we must vanquish in order to preserve it. We’ll get into all that and more in our panel discussion of AI, Creativity and the Public Domain.
This event is co-hosted by Internet Archive, Creative Commons, Authors Alliance, Public Knowledge, Library Futures, SPARC and the Duke Center for the Study of the Public Domain.
On Monday the Internet Archive joined thousands of others in submitting comments to the US Copyright Office as part of its study on Copyright and Artificial Intelligence.
Our high level view is that copyright law has been adapting to disruptive technologies since its earliest days and our existing copyright law is adequate to meet the disruptions of today. In particular, copyright’s flexible fair use provision deals well with the fact-specific nature of new technologies, and has already addressed earlier innovations in machine learning and text-and-data mining. So while Generative AI presents a host of policy challenges that may prompt different kinds of legislative reform, we do not see that new copyright laws are needed to respond to Generative AI today.
Our comments are guided by three core principles.
First, regulation of Artificial Intelligence should be considered holistically–not solely through the isolated lens of copyright law. As explained in the Library Copyright Alliance Principles for Artificial Intelligence and Copyright, “AI has the potential to disrupt many professions, not just individual creators. The response to this disruption (e.g., support for worker retraining through institutions such as community colleges and public libraries) should be developed on an economy-wide basis, and copyright law should not be treated as a means for addressing these broader societal challenges.” Going down a typical copyright path of creating new rights and licensing markets could, for AI, serve to worsen social problems like inequality, surveillance and monopolistic behavior of Big Tech and Big Media.
Second, any new copyright regulation of AI should not negatively impact the public’s right and ability to access information, knowledge, and culture. A primary purpose of copyright is to expand access to knowledge. See Authors Guild v. Google, 804 F.3d 202, 212 (2d Cir. 2015) (“Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance . . . .”). Proposals to amend the Copyright Act to address AI should be evaluated by the impact such new regulations would have on the public’s access to information, knowledge, and culture. In cases where proposals would have the effect of reducing public access, they should be rejected or balanced out with appropriate exceptions and limitations.
Third, universities, libraries, and other publicly-oriented institutions must be able to continue to ensure the public’s access to high quality, verifiable sources of news, scientific research and other information essential to their participation in our democratic society. Strong libraries and educational institutions can help mitigate some of the challenges to our information ecosystem, including those posed by AI. Libraries should be empowered to provide access to educational resources of all sorts– including the powerful Generative AI tools now being developed.
This post is co-authored by Lila Bailey (Internet Archive) and Brandon Butler (Software Preservation Network)
Thomas Jefferson Building, Library of Congress, Washington, D.C. by Ron Cogswell. CC-BY 2.0.
The Internet Archive and the Software Preservation Network (SPN) support proposed revisions to the US Copyright Office electronic deposit rules as an important bulwark against vanishing culture.
The Library of Congress (the “Library”) is the world’s most comprehensive record of human creativity and knowledge. Deposits of published works made by creators when they register for copyright protection make up the core of the Library’s national collection, ensuring the long term preservation and public access of our collective cultural heritage. For decades, the number of creative works published in electronic formats has grown exponentially, but the Copyright Office and the Library did not have the policy or technical infrastructure to collect and preserve materials in these formats. Presently, the US Copyright Office is modernizing its systems, rules, and processes to ensure it can fulfill its important role in the copyright system, including providing copies of deposited works for inclusion in the Library’s collections. In the latest rulemaking on electronic deposits, the copyright industry lobby raised concerns about the Office’s proposal to expand the Library’s access to electronically-deposited works; as we explain below, those concerns are unfounded.
Under 37 Code of Federal Regulations § 202.18, the Library may provide limited on-site access to groups of newspapers electronically submitted for registration, as well as electronic serials and books submitted for mandatory deposit. The Copyright Office has proposed expanding the categories of electronic deposits covered by the regulation with the same limitations on access as are currently in place. Specifically, the works may only be accessed under the supervision of Library staff through computer terminals in the Library’s reading rooms. These terminals are not connected to the Internet and the input/output connections (USB, etc.) are disabled. Libraries support expanding on-site access rules to new categories of deposits to ensure that over time, the public can continue to access works in the Library’s collection.
During a public comment period for this proposed rule, groups representing rightsholders surfaced concerns about infringement, and urged the Office to heighten security and protection of electronic deposit copies before instituting its proposed rule. As SPN observes in its reply comments, there is no serious basis for these concerns, as the security measures in place already render electronic materials less accessible and less susceptible to misuse than traditional print formats.
Rightsholder groups also suggest that licenses are necessary when the Copyright Office transfers deposits to the Library, and when the Library provides digital access to works. The Internet Archive notes that a licensing regime is not necessary to permit access to the Library’s collections, explaining that “the Copyright Act has always allowed libraries to preserve and provide access to works in their collection without permission or authorization from rightsholders.” Indeed, “Congress has never required the Library of Congress, or any other library, to pay licensing fees to preserve or lend items in their collections.”
Not only are these security concerns and licensing proposals meritless, they are a distraction from the Library of Congress’ critical role as collector and preserver of our cultural heritage to benefit the public interest. The Software Preservation Network explains that while books, music, software, and other works are increasingly produced digitally and only available through licenses, “the Library of Congress is the only library in the United States with a statutory right to acquire and own copies that may otherwise be available only subject to a license.” If the Library were to abandon its role as “a collector and preserver consigning itself instead to the role of licensee, it could lead to a digital dark age in our national Library.” If the Library were required to license works, SPN cautions, the record of cultural history in the Library’s collection could be subjected to the whims of the marketplace, which has no incentive to preserve cultural works.
For all the reasons above, libraries strongly support adoption of the proposed rule.
Nouns are NFT avatars generated by the Nouns protocol, all released into the public domain; all Nouns are equally rare because the project enforces “no explicit rules for attribute scarcity.”
Last week, Internet Archive filed comments in response to the United States Copyright Office’s Non-Fungible Token Study. The study was launched by the Copyright Office, in partnership with the Patent and Trademark Office, in response to a letter from Senators Patrick Leahy and Thom Tillis. In their letter, the senators described their “interest in the continued development and use of emerging technologies [which] includes considering how best to secure intellectual property rights for emerging technologies and how to assess what impact these technologies might have on intellectual property rights.” They “urge[d]” the Copyright Office to “consult with the private sector” in undertaking the study, “drawing from the technological, creative, and academic sectors.”
While the Senators did not expressly invite the Office to consult with libraries or the public interest community, the Office opened the study to comments from the public at large. This was a welcome development. As digital rights group Public Knowledge has documented, participation by civil society and other public-interest-minded actors in Copyright Office matters can play an important role in ensuring the public interest is taken into account. With that role in mind, we were pleased to submit our comments in response to this latest study.
As mentioned in our comments, Internet Archive has been in active engagement with the Decentralized Web community for many years now, including convening and stewarding the development of DWeb Principles, sponsoring DWeb Camp, and participating in a variety of other projects and events. We recognize that NFTs have sparked debate within the DWeb community. Nevertheless, as policymakers are beginning to look at regulating decentralized technologies, we felt it important to weigh in with our perspective.
In particular, our comments encourage the Copyright Office to consider impacts on libraries—in particular the ways in which NFTs could help libraries develop long term, permanent digital collections. Our comments also encourage the Copyright Office to respect the choice of NFT artists who wish to release their underlying work under open licenses, as these build our common culture. You can read our full submission here.
We are excited to announce the release of our report, “Securing Digital Rights for Libraries: Towards an Affirmative Policy Agenda for a Better Internet,” and the culmination of a months-long process consulting with leading experts from libraries, civil society, and academia regarding libraries’ role in shaping the next iteration of the internet. The Internet Archive did this work in collaboration with the Movement for a Better Internet, so as to help model how this community can work together towards building an internet centered on public interest values.
You can download and read the free, openly-licensed report HERE.
The consultation focused on two core questions: How can libraries (1) sustain their traditional societal function and (2) build on their strengths to support a better information ecosystem in the 21st Century? Participants discussed a wide range of challenges, including consolidation in the publishing industry, mis/disinformation, and providing equitable access to information despite these obstacles. The conversation was anchored in libraries’ traditional support of public interest values—i.e. democracy, equity, diversity and inclusion, privacy, freedom of expression, and more.
The key takeaway from this consultation process is simple: The rights that libraries have always enjoyed offline must also be protected online. The report articulates a set of four digital rights for libraries, based on the core library functions of preserving and providing access to information, knowledge, and culture. Specifically, if libraries are to continue ensuring meaningful participation in society for everyone in the digital era, they must have the rights to:
Collect digital materials, including those made available only via streaming and other restricted means, through purchase on the open market or any other legal means, no matter the underlying file format;
Preserve those materials, and where necessary repair or reformat them, to ensure their long-term existence and availability;
Lend digital materials, at least in the same “one person at a time” manner as is traditional with physical materials;
Cooperate with other libraries, by sharing or transferring digital collections, so as to provide more equitable access for communities in remote and less well-funded areas.
The report is intended as a guide for meaningful policy discussions among librarians, public interest advocates, and lawmakers. We encourage you to read it and join us next Thursday, December 8th for a webinar discussion about the report with leaders from Internet Archive, Public Knowledge, Creative Commons, and the Association of Research Libraries. Come with your feedback, questions, and ideas for translating the conclusions of the report into actionable policy goals. We also encourage you to check out the Movement for a Better Internet, and join us there as we continue to work with different communities to build an internet that works better for everyone.
The moon belongs to everyone, so says the 1927 hit musical composition, “The Best Things In Life Are Free.” We agree! In January of 2023, a treasure trove of new cultural works will become as free as the moon and the stars, and we at Internet Archive, Creative Commons and many other leaders from the open world plan to throw a party to celebrate!
Next year, works published in 1927 will join the myriad creative building blocks of our shared culture heritage. The public domain will grow richer with books from authors like Sir Arthur Conan Doyle, Marcel Proust, and Virginia Woolf, silent film classics like the controversial The Jazz Singer with Al Jolson and Fritz Lang’s dystopian Metropolis, and snappy musical compositions like You Scream, I Scream, We All Scream For Ice Cream.
You can welcome new public domain works and party with us two ways:
Join us for a virtual party on January 19, 2023 at 1pm Pacific/4pm Eastern time where we will celebrate our theme, The Best Things In Life Are Free, with a host of entertainers, historians, librarians, academics, activists and other leaders from the open world, including additional sponsoring organizations Library Futures, SPARC, Authors Alliance, Public Knowledge, and the Duke Center for the Study of the Public Domain. REGISTER FOR THE VIRTUAL EVENT HERE!
The Internet Archive will also host an in-person Film Remix Contest Screening Party on January 20, 2023 at 6pm at 300 Funston Ave in San Francisco. We will celebrate 1927 as founding year of the Academy of Motion Picture Arts and Sciences, while watching this year’s Public Domain Day Remix Contest winning entries, eating popcorn and ice cream. Come dressed in your best golden age of Hollywood inspired costume and walk the red carpet with the Internet Archive as we celebrate the entry of “talkies” into the public domain. REGISTER FOR THE IN-PERSON PARTY IN SAN FRANCISCO HERE!
