Author Archives: Lila Bailey

Internet Archive Responds to UK Online Harms White Paper

The United Kingdom has proposed a broad new regulatory framework for dealing with harmful content online in its Online Harms White Paper. The Internet Archive is concerned that the new framework could have problematic unintended consequences for digital libraries.

Below is our full response:

Introduction

The Internet Archive, a US-based 501(c)(3) non-profit, is building a digital library of Internet sites and other cultural artifacts in digital form. Like a paper library, we provide free access to researchers, historians, scholars, people with print-disabilities, and the general public. Our mission is to provide Universal Access to All Knowledge.

We appreciate the opportunity to weigh in on the important question of how to manage harmful content online. We believe the web has been an amazing boon to society by democratizing access to knowledge and culture, but we recognize some harms are very real. We therefore urge the government to proceed carefully with regulation.

Our response deals with two aspects of the UK government’s plans for regulating online harms: (1) the online services considered within the scope of the regulatory framework and (2) a suggested approach to accountability and transparency.

Nonprofit Libraries Should Not Be Within the Scope of the Regulatory Framework

Section 4 of the Online Harms White Paper describes the scope of the regulatory framework as applying to “companies that provide services or tools that allow, enable or facilitate users to share or discover user-generated content” including “non-profit organisations.” This scope is overly broad and would sweep in non-profit digital libraries and archives.

Historically, libraries and archives have not been regulated under the same rules as for-profit media organizations. For good reason–libraries have a fundamentally different role in society from commercial media companies. Libraries seek to fulfill a range of vital public interest goals: ensuring widespread access to knowledge, promoting literacy and learning, ensuring equity of access, and stewarding their communities’ cultural and literary heritage. Increasingly, knowledge and cultural heritage is created and shared online. In response, libraries are also moving online. This fact should not subject them to the same rules and burdens as for-profit media and social media companies.

Although libraries are moving online, their fundamental role in society remains the same. Libraries have always supported the individual’s right to be informed, to receive accurate and truthful information, as well as to seek, receive and impart ideas of all kinds–including dangerous or unpopular ones. Libraries also support literacy and help individuals learn to assess the veracity of information in front of them. In our current digital information ecosystem, filled with deception and misinformation, libraries play an important role in empowering an informed citizenry. A vague “duty of care” standard could stifle libraries from achieving their vital public service mission. For these reasons, we believe libraries and archives should be clearly excepted from the regulatory framework set forth in the White Paper.

The UK Government Should Support Transparency and Accountability via the Creation of a Restricted Access Archive of Removed Content

While our mission is Universal Access to All Knowledge, we recognize that some kinds of information can be so dangerous as to warrant being restricted to a limited set of people.

Colloquially, libraries, archives, and museums use the term “giftschrank,” meaning “poison cabinet” to refer to an area where sensitive or potentially harmful materials are stored. This can take the form of a secret reading room that is off-limits to the general public and only those with special, scholarly permission are allowed access.

A “giftschrank” for collecting the materials that have been removed from company websites, either by reason of a legal removal request, or because the material violated the company’s own rules, could be another role for libraries to serve in the digital information ecosystem. While these materials may be harmful or dangerous to the general public, it remains vitally important for us as a society to nevertheless be able to study them. It is also important to have transparency into what kinds of materials are being removed, and what impact such removal may have on different communities. A giftschrank could help, and the Internet Archive is in a strong position to be a host institution for such an archive.

We therefore suggest that the government support the creation of a giftschrank of harmful materials removed from the internet. Some obstacles to building this include fear of potential liability for hosting the material. The government could help by limiting liability for good faith efforts. Another barrier is uncertainty around what materials should be included and who should have access. The government could help by convening a discussion with the appropriate stakeholders. Finally, funding would be necessary. The government could help either by directly providing the funds or by providing other financial incentives.

The Future of Canadian Copyright Looks Bright

Canada updated its copyright laws in 2012, with the mandate that the new provisions be reviewed in 5 years. Over the past 2 years the Canadian government has been studying the impacts of the law (the comments we submitted last December can be found here) and recently issued a very reasonable set of recommendations for modest improvements to the law.

Canadian scholar Michael Geist summarized the report better than we ever could here. His summary of the key takeaways are:

  • expansion of fair dealing by making the current list of fair dealing purposes illustrative rather than exhaustive (the “such as” approach)
  • rejection of new limits on educational fair dealing with further study in three years
  • retention of existing Internet safe harbour rules
  • rejection of the FairPlay site blocking proposal with insistence that any blocking include court oversight
  • expansion of the anti-circumvention rules by permitting circumvention of digital locks for purposes that are lawful (ie. permit circumvention to exercise fair dealing rights)
  • extend the term of copyright only if ratifying the USCMA and include a registration requirement for the additional 20 years implement
  • a new informational analysis exception
  • further study of statutory damages for all copyright collectives along with greater transparency
  • adoption of an open licence rather than the abolition of crown copyright

We are very pleased to see Canada moving towards more flexibility in their fair dealing regime, open licenses for government works, and registration requirements for longer terms and away from draconian site blocking and filtering proposals. We hope these reasonable recommendations will be followed by the Canadian Parliament.

The #SaveYourInternet Fight to Protest Article 13 in the EU

The final vote on the Copyright Directive in the European Parliament is expected between the 26 and 28 March. As we explained previously, one particular provision, known as Article 13, would lead to upload filters being required on most Internet services. The proposed law has only gotten worse over the months of debate, and many in the EU and across the globe are concerned that this will lead to censorship even of legal content. The #SaveYourInternet fight has one last chance to prevent this law from taking effect. If you are an EU citizen, the most effective thing you can do is to call your MEP and ask them to vote against Article 13. Real world peaceful protests are also planned throughout Europe. Go to savetheinternet.info/demos to find out where your nearest demonstration is. Those of us outside the EU can support this effort on social media using the #SaveYourInternet hashtag.

Working to Keep Positive Copyright Provisions in Canada

We have said previously that Canada is doing a relatively good job of achieving the appropriate balance in its laws between user rights and the rights of authors and publishers.

The Internet Archive joined the Internet Archive Canada today in filing a brief to the Canadian Standing Committee on Industry, Science and Trade (INDU) under that county’s statutory review of its copyright laws.

Our message to INDU is mostly: “don’t back pedal”. We do suggest that if Canada decides to extend its copyright term by 20 years pursuant to the USMCA, that they add a balancing provision allowing libraries to make those older works available to the public.

Our brief here.

Join us for A Grand Re-Opening of the Public Domain

Check out the photos from the event!

Screen shot from Cecil B. DeMille’s 1923 silent classic, “The Ten Commandments.” On January 1, 2019, this film and tens of thousands of other works will enter the public domain.

It’s time to celebrate!  For the first time in decades, new creative works such as Cecil B. DeMille’s 1923 silent film, “The Ten Commandments,” Kahlil Gibran’s classic “The Prophet,” and Virginia Woolf’s third novel, “Jacob’s Room,” will enter the public domain on the first day of 2019. Please join us for a Grand Re-opening of the Public Domain, featuring a keynote address by Creative Commons’ founder, Lawrence Lessig, on January 25, 2019.  Co-hosted by the Internet Archive and Creative Commons, this celebration will feature legal thought leaders, lightning talks, demos, and the chance to play with these new public domain works. The event will take place at the Internet Archive in San Francisco.

RSVP now before the tickets run out

Kahlil Gibran’s “The Prophet” will enter the public domain on January 1st!

The public domain is our shared cultural heritage, a near limitless trove of creativity that’s been reused, remixed, and reimagined over centuries to create new works of art and science. The public domain forms the building blocks of culture because these works are not restricted by copyright law. Generally, works come into the public domain when their copyright term expires. But U.S. copyright law has greatly expanded over time, so that now many works don’t enter the public domain for a hundred years or more. Ever since the 1998 Copyright Term Extension Act, no new works have entered the public domain (well, none due to copyright expiration). But for the first time this January, tens of thousands of books, films, visual art, sheet music, and plays published in 1923 will be free of intellectual property restrictions, and anyone can use them for any purpose at all.

The cartoons featuring Felix the Cat, 1923, is among the tens of thousands of works that will be full accessible starting 2019.

Join the creative, legal, library, and advocacy communities plus an amazing lineup of people who will highlight the significance of this new class of public domain works. Presenters include Larry Lessig, political activist and Harvard Law professor; Corynne McSherry, legal director of the Electronic Frontier Foundation; Cory Doctorow, science fiction author and co-editor of Boing Boing; Pam Samuelson, copyright scholar; and Jamie Boyle, the man who literally wrote the book on the public domain, and many others.

Continue the celebration at the world premiere of DJ Spooky’s “Quantopia” at the Yerba Buena Center in SF on January 25.

In the evening, the celebration continues as we transition to Yerba Buena Center for the Arts for the world premiere of Paul D. Miller, aka DJ Spooky’s Quantopia: The Evolution of the Internet, a live concert synthesizing data and art, both original and public domain materials, in tribute to the depth and high stakes of free speech and creative expression involved in our daily use of media. Attendees of our Grand Re-Opening of the Public Domain event will receive an Internet Archive code for a 20% discount for tickets to Quantopia.

If you’d like to  support the work we do at the Internet Archive, including making these 1923 works available to you for free on January 1,

please donate here.

Schedule of Events:

10am: Doors & Registration

10-11:45am: Interactive public domain demos and project stations with organizations including Creative Commons, Internet Archive, Wikipedia, Authors Alliance, Electronic Frontier Foundation, California Digital Library, Center for the Study of the Public Domain, LightHouse for the Blind and Visually Impaired, the Cleveland Art Museum, and many more!

11:45-1pm: Lunch on your own in the Richmond District

1pm-6pm: Program of keynote speakers, lightning talks and panels highlighting the value and importance of the public domain

6pm-7:30pm: Reception

Speakers/Panelists Include:

  • Lawrence Lessig – Harvard Law Professor
  • Cory Doctorow – Author & Co-editor, Boing-Boing
  • Pam Samuelson – Berkeley Law Professor
  • Paul Soulellis – Artist & Rhode Island School of Design Professor
  • Jamie Boyle – Duke Law Professor & Founder, Center for the Study of the Public Domain
  • Brewster Kahle – Founder & Digital Librarian, Internet Archive
  • Corynne McSherry – Legal Director, Electronic Frontier Foundation
  • Ryan Merkley – CEO, Creative Commons
  • Jennifer Urban – Berkeley Law Professor
  • Joseph C. Gratz – Partner, Durie Tangri
  • Jane Park – Director of Product and Research, Creative Commons
  • Cheyenne Hohman – Director, Free Music Archive
  • Ben Vershbow – Director, Community Programs, Wikimedia
  • Jennifer Jenkins – Director, Center for the Study of the Public Domain
  • Rick Prelinger – Founder, Prelinger Archives
  • Amy Mason – LightHouse for the Blind and Visually Impaired
  • Paul Keller – Communia Association
  • Michael Wolfe – Duke Lecturing Fellow, Center for the Study of the Public Domain
  • Daniel Schacht – Co-chair of the Intellectual Property Practice Group, Donahue Fitzgerald LLP

Library Coalition Letter on Music Copyright Bills

On Monday, the Internet Archive joined a coalition of the library and archives community, including the Society of American Archivists, The Archive of Contemporary Music, the Music Library Association, and the Association for Recorded Sound Collections among others, in sending a letter to Senate leadership addressing two pieces of legislation, each seeking to improve the confusing world of music copyright law. We’ve blogged about each of these bills here before, one is known as the CLASSICS Act and the other as the ACCESS to Recordings Act.

Although both bills seek to remedy the situation for older sound recordings from before 1972, which are not protected by federal copyright law but rather only by a patchwork of state laws, the CLASSICS Act goes about doing so in a one-sided manner that would give away valuable rights to big record labels and leave libraries and the public out. Although attempts are apparently being made in closed-door negotiations to even out the balance, the Internet Archive and the rest of the coalition believe that the CLASSICS Act is beyond fixing, as articulated in detail on our letter, and should be rejected by Congress.

The ACCESS to Recordings Act, on the other hand, would harmonize older sound recordings with every other type of work protected under copyright law, granting rights to performers and the full set of exceptions and limitations, including a robust public domain, allowing researchers, historians and music fans alike to access our cultural heritage. The coalition therefore supports the ACCESS Act as the correct and more sensible path forward on bringing pre-1972 sound recordings under federal copyright protection.

If you care about this issue, the best thing you can do now is pick up the phone and call your own Senators to let them know you oppose the CLASSICS Act and support the ACCESS to Recordings Act. You can also go to EFF’s website to take action opposing CLASSICS and you can go the Public Knowledge’s website to support ACCESS.

Proposed EU Copyright Measure Threatens the Internet

The European Union is set to vote on a copyright proposal that will require platforms hosting user-generated content to automatically scan and filter anything that their users upload (see the EU Commission’s proposed Article 13 of the Copyright Directive) on June 20th or 21st.

We urge the European Parliament to reject this proposal. We encourage Internet users to go to https://saveyourinternet.eu to take action.

The main purpose of Article 13 is to limit music and videos on streaming platforms, based on a theory of a “value gap” between the profits that platforms make on uploaded works, verses those the copyright holders of those works receive. However, the proposal extends far beyond music, requiring platforms to monitor every type of copyrighted work–text, images, audio, video, and even code. Article 13 would have an impact on just about everything that happens online, threatening freedom of expression, privacy, and the free flow of knowledge on the Internet.

We have discussed our concerns with the idea of automated content filters when the idea came up in US copyright conversations in the past. This law is troubling in the same ways. Requiring platforms to monitor content contradicts existing rules that create a shared responsibility between platforms and rightsholders for removal of illegal content. In doing so, the law creates incentives to remove legitimate content; it creates a a troubling “take down first, ask questions later/never” attitude to online content.

Filters are not good at understanding context, and therefore legitimate speech such as commentary, parody, or satire may be removed without any human judgment involved. Legitimate expression may be chilled in the form of overly cautious self-policing as a result. Article 13 also has no penalties for false or misleading claims, leaving the system wide open for abuse.

Further, although Article 13 is intended to prevent uploads that infringe copyright, the same technology could be required for filtering of content for compliance with other EU laws, which would compound the dangers that this measure poses for freedom of expression and privacy online. And, policymakers in other countries, including the United States, may come to view mandating content filters as an acceptable way to regulate the Internet if the EU does it first.

We urge you to take action.

[More from EFF, Public Knowledge, and Wikipedia].

The ACCESS to Recordings Act is the Right Way to Fix Music Copyright

Senator Wyden (D-OR) has introduced a common sense bill to fix a bad mistake made by Congress in the 1970s as an alternative to the bad bill Congress is currently considering. The Accessibility for Curators, Creators, Educators, Scholars, and Society (ACCESS) to Recordings Act would extend full federal copyright to sound recordings created before 1972–works that currently only have state law protection.

ACCESS is good for legacy musicians and good for libraries. This bill would help give legal certainty to library activities such as our Great 78 Project that seeks to preserve and give access to the millions of songs recorded on 78rpm discs from approximately 1900-1950. Many of these important cultural works are not commercially viable, and therefore could be lost forever without library intervention. ACCESS supports libraries’ ability to ensure the continued availability of our sound recording heritage.

“Copyright reform for pre-1972 sound recordings must consider the interests of all stakeholders – not just those of the for-profit record labels,” said Senator Wyden. “The ACCESS to Recordings Act, by applying the same term limits and rights and obligations that apply to other copyrighted works, would help preserve our cultural heritage and open up older works to rediscovery by scholars, creators and the public. I have serious concerns about the lengthy terms in current U.S. copyright law that tip the balance toward limiting rather than promoting creativity and innovation, but until Congress is willing to reconsider it, we shouldn’t go beyond those protections and provide unprecedented federal copyright term for sound recordings.”

The Internet Archive joins Public Knowledge, the Library Copyright Alliance and the Association for Recorded Sound Collections in supporting this bill, and urging Congress to pass it.

The Music Modernization Act is Bad for the Preservation of Sound Recordings

There’s a bill working its way through Congress called the Music Modernization Act (the current bill is a mix of several bills, the portion we are concerned with was formerly called the CLASSICS Act) that has us very concerned about the fate of historical sound recordings. As currently drafted, this bill would vastly expand the rights of performers of pre-1972 sound recordings, without any provision for a public domain for these works or meaningful fair use and library exceptions. After a visit to Washington DC meeting with various Congressional staffers working on this issue, we do not believe that the CLASSICS portion of the bill will be fixed. We therefore oppose the CLASSICS portion of the Music Modernization Act.

We agree with EFF on this, and they have written on the subject as well.

By way of background, sound recordings made before 1972 are not currently protected by federal copyright law, and have state law protection until 2067. To fix some real unfairness for a small group of still-living performance artists mostly from the 1960’s, this bill would give federal “pseudo-copyright” protection for digital performances for works going back to 1923. The bill would leave the rest under state law creating an even more complex and confusing legal landscape for libraries wishing to preserve these historical recordings for future generations.

Copyright law is meant to be a careful balance between creators and the public. This bill is a give away to a small group of commercial interests that leaves libraries and the public they serve behind. We hope Congress will reject this portion of the MMA.

DRM for the Web is a Bad Idea

I asked our crawler folks what the impact of the EME proposal could be to us, and what they came back with seems well reasoned but strongly negative to our mission.

I have posted the analysis below for the public to consider.

-brewster

At your request we have assessed what the possible effects of the Encrypted Media Extensions (EME) as a W3C recommendation would be.

We believe it will be dangerous to the open web unless protections are put in place for those who engage in activities, such as archiving, that are threatened by the legal regime governing the standard.

One major issue is that people who bypass EME, even for legitimate reasons, have reason to fear retaliation under section 1201 of the US Digital Millennium Copyright Act, and laws like it around the world, such as Article 6 of the European Union Copyright Directive, which indiscriminately bar circumvention even for lawful purposes. Locking up standards-defined video streams with digital rights management (DRM) could put our archiving activities at serious risk. DRM, which imposes technological restrictions that control what users can do with digital media, is antithetical to the open web. Moreover, EME opens the possibility that DRM could spread to non-video content such as typography or images, which poses an even more existential threat. Web archiving and the Wayback Machine would suffer.

Archiving is not the only activity endangered by anti-circumvention laws and EME: from accessibility adaptation to security research to the kinds of legitimate innovative activities that you began your career with — inventing the first search engines — the normal course of the open, standards-defined internet is incompatible with the anti-circumvention regime that comes into play if the W3C publishes EME as a recommendation.

The Electronic Frontier Foundation has proposed a sensible and simple compromise: binding W3C members not to invoke anti-circumvention laws unless there is some other cause of action. This preserves the legitimate interests of rightsholders against those who trespass on their copyrights, trade secrets and contractual obligations, without turning the W3C standards process into a backdoor to creating new legal rights to prevent legitimate, vital activities.

Every organization involved in creating and preserving the open web is facing unprecedented challenges and pressures today. It is up to the guardians of the open web to meet those challenges with an unwavering commitment to our core principles: that the web must be free for anyone to write, to read, to connect to, to adapt, to archive and to preserve. As such, I recommend that we object to the publication of EME as a W3C specification without safeguarding these foundational principles of the open web.