Tag Archives: copyright

Internet Archive Submits Comments on Copyright and Artificial Intelligence

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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.

Read our full comments here.

The Library of Congress plays a critical role in preservation and providing public access to cultural heritage materials

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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.


Law Professor Makes Digital Copyright Book Open for All

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After spending years researching the history of U.S. copyright law, Jessica Litman says she wants to make it easy for others to find her work.

Digital Copyright is available to read now.

The law professor’s book, Digital Copyright, first published in 2001 by Prometheus Books, is available free online (read now). After it went out of print in 2015, University of Michigan Press agreed to publish an open access edition of the book. Litman updated all the footnotes (some of which were broken links to web pages only available through preservation on Internet Archive) and made the updated book available under a CC-BY-ND license in 2017.

“I wanted the book to continue to be useful,” Litman said. “Free copies on the web make it easy to read.”

Geared for a general audience, the book chronicles how copyright laws were drafted, written, lobbied and enacted in Congress over time. Litman researched the legislative history of copyright law, including development of the 1976 Copyright Act, and spent two years in Washington, D.C., observing Congress leading up to the passage of the Digital Millennium Copyright Act in 1998.

“Copyright is very complicated. It can take years to agree on the text,” Litman said. “The laws that result from that process are predictable in disadvantaging the public interest because readers, listeners and viewers don’t sit at the bargaining table — or the people who create new technology because they don’t exist yet.”

Indeed, it’s in the interest of people crafting laws to erect entry barriers to anything new, Litman adds.

Reclaiming Rights

Initial response to her book was positive, said Litman, the John F. Nickoll Professor of Law at the University of Michigan. In 2006, she added an afterward with the release of a paperback edition of the book. As sales dwindled, the book went out of print. Still, Litman said there was demand and she wanted to make it broadly available to the public.

Taking advantage of the book contract’s termination clause, she wrote to the publisher to recapture rights to the book. Litman said she persuaded the University of Michigan Press to publish a revised online and print-on-demand edition with a new postscript under a Creative Commons CC-BY-ND license.

Many authors are not aware of this option and the nonprofit Authors Alliance, of which Litman was a founding member, helps provide resources to assist authors in the process of regaining their copyright. 

Typically, publishers require authors to sign contracts giving up their copyright so the company can publish, distribute and make a return on the investment of the book. One of the challenges over time, explains Dave Hansen, Executive Director of the Alliance, is that a publisher may stop printing a book when sales drop below a certain threshold. Yet, there may be potential readers that the author still wants to reach, if he or she could reclaim the copyright.

The Alliances offers free guides on Understanding Rights Reversion and Termination of Transfer.

Once the author has the rights back, there are low- or no-cost options to make it freely available. A copy can be donated to a collection at a library, such as the Internet Archive, for scanning and posting. Additionally, academic libraries are increasingly offering open access publishing services to reformat and post works online. 

The Promise of Open

Today, Digital Copyright is being downloaded hundreds of times every month. Free copies of the book had been available on the web from the mid-2000, in a variety of open access archives including  Michigan’s Deep Blue Repository. The book is also available for hard copy purchase from  online booksellers as a print-on-demand book through University of Michigan Press’s Maize Books series.

Litman is among a growing number of academics who advocate for more open sharing of their research. On the University of Michigan Senate task force, Litman helped revise the university’s copyright policy to give the institution the right to archive all faculty scholarly work as a condition of transferring the copyright in the work to the faculty member who creates it. She also worked with the law school library to help its law journals rewrite their standard form contracts to allow open access publication.  

Her advice to fellow authors: “Behave as if the law were more sensible than it is. Live in the world as you would like it to be, in hopes that the world will come around.”

Litman is an adviser for the American Law Institute’s Restatement of Copyright, a past trustee of the Copyright Society of the USA, a past chair of the Association of American Law Schools Section on Intellectual Property,  and past member of the Future of Music Coalition’s advisory council.

She will discuss her open access publishing experience and her take on copyright law with Brewster Kahle at a free online book talk April 20. Register here. 

Book Talk: Digital Copyright

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Join Internet Archive’s founder BREWSTER KAHLE for a virtual book talk with author & professor of law JESSICA LITMAN.

In Digital Copyright (read now), law professor Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of such laws on the exchange of information in a free society?

REGISTER NOW

Read Digital Copyright now.

PROFESSOR JESSICA LITMAN, the John F. Nickoll Professor of Law, is the author of Digital Copyright and the co-author, with Jane Ginsburg and Mary Lou Kevlin, of the casebook Trademarks and Unfair Competition Law: Cases and Materials.

BREWSTER KAHLE, founder and digital librarian of the Internet Archive, has been working to provide universal access to all knowledge for more than 25 years.

Book Talk: Digital Copyright
April 20, 2023 @ 10am PT / 1pm ET
Register now for the free, virtual discussion

As the US Public Domain Expands, 20-Year Pause for the Canadian Public Domain Begins

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Festivities are planned on January 19 to recognize Public Domain Day and embrace the possibilities of new works freely available from 1927.

In the United States, the recent declaration of the federal year of Open Science and the White House memo unlocking publicly funded research outputs has buoyed the open community and its outlook on knowledge sharing.

However, the celebration will be muted in Canada where librarians and educators are assessing the impact of a vast expansion of the copyright term. 

Canada’s copyright protection for artistic works was extended as 2022 came to a close from life of the author plus 50 years—to life of the author plus 70 years. The change was the result of international trade negotiations in the United States-Mexico-Canada Agreement (USMCA), requiring Canada to bring its terms closer to that of the U.S.

Once items are in the public domain, they can be republished or repurposed without seeking permission or paying a rights holder. This allows libraries, museums, and archives to use materials freely for research and historical purposes, as well as post online archives of the important documents and creative works.

The change in Canada means books, movies, plays, and songs that were previously scheduled to be free from copyright  will not be in the public domain until 2043.

“It’s a disappointment and a feeling of mourning,” said Andrea Mills, executive director of Internet Archive Canada, of the policy change that prompted the cancellation of Public Domain Day parties in the country. “It feels more like we should have a wake.”

(Others share similar concerns about the negative impact of the policy change. See Reconsidering the Copyright Bargain: by Adian Sheppard, director of the University of Alberta’s copyright office; A bizarre 20-year hiatus: Changes to copyright term in Canada by Jennifer Zerkee, Simon Fraser University library copyright specialist; and an article Interminable pause: Government must address harm caused by extension of copyright term by Mark Swartz, a scholarly publishing librarian an Queen’s University.)

Canadians used to feel good about the annual Public Domain Day, with its shorter copyright term than the U.S., said Michael Geist, Canada Research Chair in internet and e-commerce law at the University of Ottawa. Now, the country is beginning to consider the ramifications of the new terms, including disruptions to digitization projects and the increased cost of materials that will remain under copyright for educational institutions.

“Not having an enriched public domain for 20 years creates some real harms,” said Geist, who is also a member of the Internet Archive Canada board. “The vast majority of works that have no commercial value at the end of their life will be locked down for an additional 20 years.”

The change will limit access to little-known Canadian authors whose works are often out of print, Mills said. (See her blog post: A Missed Opportunity to Revive Obscure Canadian Literature – Internet Archive Canada)

The policy change was buried in a budget bill and there was no public announcement, leaving many Canadians unaware, Geist said.

The extended protection was agreed to as part of closed trade negotiations, said Peter Routhier, a copyright attorney who is on the Internet Archive’s policy team. That kind of negotiation does not follow the same sort of open process as a democratic legislature. In these kinds of settings, commercial interests are often prioritized, and there are very few ways for the public to engage, he said.

Mills said these recent changes by the government have an “overall chilling effect” on copyright policy.

Before the copyright terms were extended, the Canadian government did hold hearings to consider registration solutions and exceptions to works entering the public domain. In the end, those proposals were not adopted.

When looking at thousands of works, there is value in the overall collective rights for the authors, Geist said. But, he noted, there are also education costs to acquire works and loss of creativity to revise works in new ways when materials remain under copyright.

“It’s hard to be optimistic,” Geist said. “But it’s in the realm of possibility the government could consider some [copyright exceptions], particularly for groups like librarians, archives, and museums. “The government has not shown a lot of interest in this issue. If anything, it has sort of done its best to try to keep it below the radar screen. We’ll have to wait and see.”

To advance the public interest, librarians in Canada, the U.S., and elsewhere are pushing for reforms to licensing agreements to e-books. With the pause for new works entering the Canadian public domain, advocacy to make knowledge open by default is even more important. 

The events in Canada are a reminder that what is—and isn’t—in the public domain is ultimately a policy decision and vigilance is needed to ensure the public interest is elevated in policy conversations about copyright.

Tune in to learn more about Public Domain Day at an event hosted by the Internet Archive in collaboration with partner organizations on January 19 at 4 p.m. ET. Register here. This year’s event will celebrate the theme, “The Best Things in Life Are Free,” and feature a host of entertainers, historians, librarians, academics, activists, and others.

[Cross posted with SPARC]

GITCOIN Grants: Donate a Few Tokens, Defend a Public Treasure

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CALLING ALL COMMUNITY MEMBERS:

In just a few months, the lawsuit Hachette v. Internet Archive will be heard in court. In 2020, four of the world’s largest publishers sued our non-profit library to stop us from digitizing books and lending them for free to the public. The publishers and the corporations who own them, including News Corp and Bertelsmann, are demanding $20 million in damages and that we destroy 1.4 million digitized books. What’s really at stake? The right of all libraries to own, digitize and lend books of any kind. (Here’s what Harvard’s copyright advisor has to say about the consequences of our case.) Starting today, make a small donation through Gitcoin and have an enormous impact for the defense of Internet Archive, through Gitcoin’s quadratic funding.

Today, Gitcoin Grant Round 14 opens, supporting advocacy groups around the world. When you donate even $1 worth of crypto to the Internet Archive, it can result in $3-400+ from the matching pool. Quadratic funding rewards the number of community members who give, along with the amount. So many small donations can really have an enormous impact.

This is an example of the matching funds allotted in a previous Gitcoin Grant round.

HOW TO DONATE:

  1. First you’ll need to create or log in your Github account. 
  2. Use that account to authorize in to Gitcoin.  
  3. Choose one or both of our gitcoin grants here:
  1. You’ll need a crypto wallet like Metamask or Rainbow Wallet with some Ethereum or other tokens.
  2. Select how much you want to donate. (For example: .003 ETH = about $5.00 US)
  3. Do you want to also add some money to the matching pool? Be sure to set an amount in that field as well.
  4. Hit the “I’m Ready to Checkout” button.
  5. In the drop down menu, pick Standard Checkout, Polygon, or zkSync.
  6. Connect and log in to your crypto wallet to pay.
  7. BONUS: You can verify your identity by creating a Gitcoin Passport via Ceramic to maximize the matching funds (up to 150%).
  8. The more people who give, the greater the percentage of the matching pool we receive.
Checkout module for the Gitcoin Grant 14 Advocacy Round.

Thank you for taking these steps to unleash huge support for the Internet Archive, helping us pay the millions of dollars in legal fees we have already incurred. Your support helps ensure the Wayback Machine, Open Library, and all our games, concerts, books and films will be available to you for free for a very long time.

The Corruption of Copyright: New Scholarship in Libraries, Technology, and the Law

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UPDATED 11/18/21—Watch session recording now:

Join Library Futures, Internet Archive, and the Georgetown Intellectual Property and Information Policy (iPIP) Clinic for a panel on copyright, licensing, accessibility, and the law. We’ll be discussing new scholarship from legal experts Michelle Wu (retired Georgetown University Law Center) and Blake Reid (Clinical Professor at Colorado Law).

The Corruption of Copyright: New Scholarship in Libraries, Technology, & the Law
Monday, November 15
12pm PT / 3pm ET

Wu’s “The Corruption of Copyright and Returning to its Original Purposes” (Legal Reference Services Quarterly) looks at how some industries have redirected the benefits of copyright towards themselves through licensing and other activities, which impacts author remuneration and upsets the balance of the public interest. This paper focuses on the book, music, and entertainment industries, examines how copyright has been used to suppress the uses it was intended to foster, and explores ongoing and proposed avenues for course correction: https://scholarship.law.georgetown.edu/facpub/2410/

Reid’s “Copyright and Disability” (forthcoming in California Law Review) discusses how recent progress toward copyright limitations and exceptions continues an ableist tradition in the development of U.S. copyright policy: centering the interests of copyright holders, rather than those of readers, viewers, listeners, users, and authors with disabilities. Using case studies, Reid explores copyright’s ableist tradition to discuss how it subordinates the actual interests of people with disability. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3381201

The panel will be moderated by Amanda Levendowski, Associate Professor of Law at Georgetown Law.

Internet Archive Expresses Concerns Over Sweeping Copyright Reform Proposal

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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

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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.”

You can read our full letter here.

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

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


Judge Sets Tentative Trial Date for November 2021

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This week, a federal judge issued this scheduling order, laying out the road map that may lead to a jury trial in the copyright lawsuit brought by four of the world’s largest publishers against the Internet Archive. Judge John G. Koeltl has ordered all parties to be ready for trial by November 12, 2021. He set a deadline of December 1, 2020, to notify the court if the parties are willing to enter settlement talks with a magistrate judge. 

Attorneys for the Internet Archive have met with representatives for the publishers, but were unable to reach an agreement. “We had hoped to settle this needless lawsuit,” said Brewster Kahle, Internet Archive’s founder and Digital Librarian. “Right now the publishers are diverting attention and resources from where they should be focused: on helping students during this pandemic.” 

The scheduling order lays out this timeline:

  • Discovery must be completed by September 20, 2021;
  • Dispositive motions must be submitted by October 8, 2021;
  • Pretrial orders/motions must be submitted by October 29, 2021;
  • Parties must be ready for trial on 48 hours notice by November 12, 2021.

In June, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC—with coordination by the Association of American Publishers—filed a lawsuit to stop the Internet Archive from digitizing and lending books to the public, demanding that the non-profit library destroy 1.5 million digital books. 

Publishers Weekly Senior Writer Andrew Albanese has been covering the story from the beginning. In a July 31st Beyond the Book podcast for the Copyright Clearance Center, Albanese shared his candid opinions about the lawsuit. “If this was to be a blow out, open-and-shut case for the publishers, what do the publishers and authors get?” Albanese asked. “I’d say nothing.”

“Honestly, a win in court on this issue will not mean more sales for books for publishers. Nor will it protect any authors or publisher from the vagaries of the Internet,” the Publishers Weekly journalist continued. “Here we are in the streaming age, 13 years after the ebook market took off, and we’re having a copyright battle, a court battle over crappy PDFs of mostly out-of-print books? I just don’t think it’s a good look for the industry.”

In order to make the vast majority of 20th Century books accessible to digital learners, libraries such as the Internet Archive have been digitizing the physical books they own and lending them on a 1-to-1 “own to loan” basis—a legal framework called Controlled Digital Lending. Publishers refuse to sell ebooks to libraries, insisting on temporary licenses on restrictive terms.  This business practice “threatens the purpose, values, and mission of libraries and archives in the United States,” explains Kyle K. Courtney, copyright advisor to Harvard University Libraries. “It undermines the ability of the public (taxpayers!) to access the materials purchased with their money for their use in public libraries and state institutions, and further, it is short sighted, and not in the best interest of library patrons or the public at large.” 

“Libraries have always had the right to buy and lend books. It’s at the core of a library’s mission,” said Kahle. “The Internet Archive would like to purchase ebooks, but the publishers won’t sell them to us, or to any library. Instead they are suing us to stop all learners from accessing the millions of digitized books in our library.”