We’re excited to invite you to join us for another book talk, co-sponsored with Internet Archive, with author Sarah Lamdan about her book Data Cartels.
Join SPARC’s Heather Joseph for a chat with author Sarah Lamdan about the companies that control & monopolize our information.
Book Talk: Data Cartels with Sarah Lamdan & Heather Joseph Co-sponsored by Internet Archive & Authors Alliance Wednesday, November 30 @ 10am PT / 1pm ET Register now for the virtual discussion. Purchase Data Cartels from The Booksmith
In our digital world, data is power. Information hoarding businesses reign supreme, using intimidation, aggression, and force to maintain influence and control. Sarah Lamdan brings us into the unregulated underworld of these “data cartels”, demonstrating how the entities mining, commodifying, and selling our data and informational resources perpetuate social inequalities and threaten the democratic sharing of knowledge.
Sarah Lamdan is Professor of Law at the City University of New York School of Law. She also serves as a Senior Fellow for the Scholarly Publishing and Academic Resources Coalition, a Fellow at NYU School of Law’s Engelberg Center on Innovation Law and Policy.
Heather Joseph is a longtime advocate and strategist in the movement for open access to knowledge. She is the Executive Director of SPARC, an international alliance of libraries committed to creating a more open and equitable ecosystem for research and education. She leads SPARCs policy efforts, which have produced national laws and executive actions supporting the free and open sharing of research articles, data and textbooks, and has worked on international efforts to promote open access with organizations including the United Nations,, The World Bank, UNESCO, and the World Health Organization.
Book Talk: Data Cartels with Sarah Lamdan & Heather Joseph Co-sponsored by Internet Archive & Authors Alliance Wednesday, November 30 @ 10am PT / 1pm ET Register now for the virtual discussion.
The problem with termination of transfer is that almost no one uses it. Professor Rebecca Giblin has written about this extensively–for example, in an article she co-authored last year demonstrating that in the eight years since works first became eligible for termination under Section 203, creators exercised their termination rights for very few works (e.g. only around 800 booksover that time period, a tiny fraction of those eligible).
The system is incredibly complex and confusing, with numerous exceptions and technical requirements, such that creators can’t reasonably navigate it without significant time, expense, and usually a team of lawyers. I won’t go into all the gory details, but this report by Public Knowledge provides a good overview, highlighting the ways that Termination of Transfer in practice fails creators. This is due to the law’s complexity and the ways publishers and other corporate rightsholders systematically weaponize that complexity to prevent creators from benefiting from termination of transfer. It can be hard for creators to know how to stand up for their rights, or even to know that their rights are at risk in the first place.
Exhibit 1: The Mechanical Licensing Collective’s Attempt to Erase the Termination Right for Songwriters
In it, the Copyright Office recounts an effort by music industry powers to essentially eliminate the termination right for songwriters who would be otherwise entitled to royalties for their songs when sold or streamed digitally. Thankfully, the Copyright Office is paying attention and has crafted a proposed rule to prevent such abuse.
A little bit of background: in the world of music licensing, songwriters often transfer their rights to music publishers. Among the ways that those publishers make money is by licensing the underlying musical composition (lyrics, music) for use in actual sound recordings. These are typically referred to as “mechanical licenses.” In 2018, Congress passed the Music Modernization Act (“MMA”), which established a new blanket licensing system for digital music providers (e.g. Spotify, YouTube Music, and Pandora) that want to stream or offer downloadable digital copies and need to obtain mechanical rights. The system is operated by something called the “Mechanical Licensing Collective,” a nonprofit designated by the Copyright Office pursuant to the MMA and run by a board of 13 directors (ten music publishing executives and three songwriters).
Given this new system of blanket licensing, the MLC had to decide how it would pay out royalties in situations where a songwriter terminated her transfer of rights to a music publisher. The way this works in other contexts–e.g. when ASCAP receives notice from a creator that a grant has been terminated–is that the licensing intermediary holds onto any royalties until it is clear (either by agreement of the parties, or court order) who owns the rights, and then pays out royalties to the appropriate party.
The MLC decided to take a different approach–it proposed a default rule that said that, even when a creator terminates rights, the appropriate payee would be whomever held rights in the work at the time when it happened to have been saved on a digital music provider’s server. This bizarre proposal is a bit easier to understand when you consider that it would also conveniently mean that the publishers would almost always be entitled to all future mechanical license royalties.The MLC, after finding that the Copyright Office and many creators objected to this brazen proposal, changed course (modestly) by adopting a different rule that did basically the same thing. Instead of establishing a process for holding funds until a dispute was resolved, the MLC adopted a rule that as long as a publisher had actively licensed the work and used it at least once before the termination date, the publisher would forever receive royalties from the MLC, and not the creator who terminated rights.
The MLCs legal rationale for its default rules was based on an incredibly generous (to publishers) reading of one of the exceptions to the termination right: the “derivative work” exception, which states that “a derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination.” The MLC’s position was that this exception applied to any of the sound recordings used by digital music providers that incorporate music from songwriters, despite the statutory language in the MMA and elsewhere indicating that funds for mechanical rights under the statutory blanket license should be paid out to whomever the copyright holder is at the time of the actual use.
Thankfully, and unlike the MLC, the Copyright Office decided it would read the law for what it says. It concluded, reasonably, that the correct rule should be that whoever actually owns the rights should receive payment at the time the work is used. We plan to submit a comment supporting the Copyright Office’s proposed rule. You can do so too, here.
Making Termination Easier
We strongly believe that it should be easier for creators to exercise their termination rights, without having to jump through complex hoops and without having to battle with moneyed industry interests that seek to exploit and expand exceptions to the rule. We’ve created a number of resources to help authors terminate their transfers and regain their rights. These include a set of Frequently Asked Questions, a tool (created with Creative Commons) to guide authors through the process, and guidance and templates for how to effectuate a termination request. If you have questions or ideas on how we can help make the process easier, including advocating for changes in the law to make the system better, we want to hear from you! You can find us at info@authorsalliance.org or online on Twitter at @auths_alliance.
Yesterday there was a pretty interesting class action lawsuit filed against Github and Microsoft. The suit is about Github’s Copilot service, which it advertises as “Your AI pair programmer.” As described by Github, Copilot is “trained on billions of lines of code” and “turns natural language prompts into coding suggestions across dozens of languages.” The suit focuses on Github’s reuse of code deposited with it by programers, mostly under open source licenses, which Github has used to train the Copilot AI. Those licenses generally allow reuse but commonly come with strings attached–such as requiring attribution and relicensing the new work under the same or similar terms. The class action asserts, among other things, that Github hasn’t followed those terms because it hasn’t attributed the source adequately and has removed copyright-relevant information.
Sounds interesting, but you might be wondering why we care about this lawsuit. For a few reasons: one, it raises some important questions about the extent to which researchers can use AI to train and produce outputs based on datasets of copyrighted materials, even materials thought generally “safe” because they’re available under open licenses. As the suit highlights, materials that are openly licensed aren’t without any restrictions (most include attribution requirements), but when those materials are aggregated and used to craft new outputs, it can be seriously complicated to find the right way to attribute all the underlying creators. If this suit raises the barrier to using such materials, it could pose real problems for many existing research projects. It could also result in further narrowing of what datasets are likely to be used by AI researchers– resulting an even smaller group of materials that include what law professor Amanda Levendowski refers to as “biased, low-friction data” (BLFD), which can lead to some pretty bad and biased results. How and when open license attribution requirements apply is important for anyone doing research with such materials in aggregate.
Second, the suit at least indirectly implicates some of the same legal principles that authors working on text-data mining projects rely on. We’ve argued (successfully, before the U.S. Copyright Office) that such uses are generally not infringing–-particularly for research and educational purposes-–because fair use allows for it. Several others, such as Professors Michael Carroll and Matthew Sag, have made similar arguments. Of course, Github Copilot has some meaningful differences from text-data mining for academic research; e.g., it is producing textual outputs based on the underlying code for a commercial application. But the fair use issue in this case could have a direct impact on other applications.
Interestingly, the Github Copilot suit doesn’t actually allege copyright infringement, which is how fair use would most naturally be raised as a defense. Instead, the plaintiffs, as class representatives, make two claims that could implicate a fair use defense: 1) a contractual claim Github has violated the open source license covering the underlying code, which generally require attribution among other things; 2) a claim Github has violated Section 1202 of the Digital Millennium Copyright Act by removing copyright management information (“CMI”) (e.g., copyright notice, titles of the underlying works).
The complaint attempts to avoid fair use issue, asserting that ”the Fair Use affirmative defense is only applicable to Section 501 copyright infringement. It is not a defense to violations of the DMCA, Breach of Contract, nor any other claim alleged herein.” The plaintiffs may well be trying to follow the playbook of another recent open source licensing case, Software Freedom Conservancy v. Vizio, which successfully convinced a federal court that its breach of contract claims, based on an alleged breach of the the GPLv2 license, should be considered separate and apart from a copyright fair use defense.
This suit is a little different though. For one, at least five of the eleven licenses at issue explicitly recognize the applicability of fair use; for example, the GNU General Public License version 3 provides that “This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.” It would seem more of a challenge to convince a court that a fair use defense doesn’t matter when almost half of the licenses explicitly say it does. Likewise, while the text of Section 1202 doesn’t explicitly allow for a fair use defense, its restrictions are only applicable to the removal of CMI when it is done “without the authority of the copyright owner or the law.” The plaintiffs claim that fair use isn’t a defense to allegations of a Section 1202 violation, but thats far from clear, and it may be that removal of information pursuant to a valid fair use claim should qualify as removal with the “authority . . . of the law.”
The lawsuit is a class action, so it faces some special hurdles that a typical suit would not. For example, the plaintiffs must demonstrate that they can adequately represent the interests of the class, which it has defined as:
All persons or entities domiciled in the United States that, (1) owned an interest in at least one US copyright in any work; (2) offered that work under one of GitHub’s Suggested Licenses; and (3) stored Licensed Materials in any public GitHub repositories at any time between January 1, 2015 and the present (the “Class Period”).
That could pose a challenge given that it seems likely that at least a portion–if not a sizable portion–of those who contributed code to Github under those open licenses may be more sympathetic to Github’s reuse than the claims of the plaintiffs. In Authors Guild v. Google, another class action suit involving mass copying to facilitate computer-aided search and outputs like snippet view in Google Books, similar intra-class conflicts posed a challenge to class certification (including objections we raised on behalf of academic authors). The Github Copilot suit also includes a number of other claims that mean it could be resolved without addressing the copyright and licensing issues noted above. For now, we’ll monitor the case and update you on outcomes relevant to authors.
On Monday, Judge Florence Pan issued an order enjoining (or blocking) the proposed merger of Penguin Random House and Simon & Schuster following a weeks-long trial in the D.C. Circuit. Authors Alliance has been monitoring the case and covering it on this blog for the pastyear. While Judge Pan’s full opinion is not yet public—it is currently sealed while each party determines what information it would like to be redacted as confidential—but her decision to block the proposed merger strikes a blow for efforts to consolidate major trade publishers and signals judicial concern about too little competition in the publishing industry.
Judge Pan (who was appointed to the D.C. Circuit Court of Appeals to replace then-judge Kentanji Brown Jackson in September, but has continued to preside over this district court case), issued a short order announcing the decision. Judge Pan found that the Department of Justice had “shown that ‘the effect of [the proposed merger] may be substantially to lessen competition’ in the market for the U.S. publishing rights to anticipated top-selling books.” She concluded that the merger could not move forward under U.S. antitrust law, which seeks to protect market competition and ensure that no one firm wields too much power.
The DOJ applauded the decision, with Assistant Attorney General Jonathan Kanter stating that the decision “protects vital competition for books and is a victory for authors, readers, and the free exchange of ideas,” and that the merger would have “reduced competition [and] decreased author income.” Penguin Random House, on the other hand, has already signaled that it is considering appealing the decision, and initially indicated it would be filing an “expedited appeal” before walking back this position in later comments. Jonathan Karp, president and CEO of Simon & Schuster, released a statement to the firm’s employees indicating Penguin Random House’s plans to appeal and stating that Simon & Schuster would be reviewing the decision and conferring with Penguin Random House to determine “next steps.”
The parties have until November 4th to propose redactions to her opinion, which Judge Pan will then decide on, before the court releases it to the public. There is no set timeline for the full decision being released, but the short timeline for the parties to request redactions could signal that the process will not take long.
One interesting aspect of the case is that the government focused on the market for “anticipated bestsellers” in its filings and argument, as well as the effect that lessened competition would have on authors, not the general public. Judge Pan adopted this position in her order, apparently accepting the argument as valid. Typically, antitrust focuses on harm to consumers, and indeed, Penguin Random House argued staunchly that the lack of a tangible harm to consumers meant the proposed merger did not pose an antitrust problem.
But were the merger to go forward, with fewer firms bidding on books expected to be commercially successful, the authors of those books could receive lower advances or less favorable contract terms due to the lessened competition. While the government chose to focus on a narrow segment of the book market (a move which faced criticism by some), the point that publishing house consolidation can hurt authors’ interests by giving them fewer choices is an important one.
Authors Alliance cares deeply about ensuring that our publishing ecosystem is diverse and vibrant, and the merger could have had deleterious effects on this diversity. At the same time, the focus on the anticipated bestseller market demonstrates one pitfall of the publishing industry: authors of commercial bestsellers tend to be centered as the authors whose interests are most important or worthy of attention, but these represent a vanishingly small percentage of working authors. Many of Authors Alliance’s members are authors who do not publish with trade publishers like Penguin Random House and S&S, and these authors have different motivations and priorities than authors of anticipated bestsellers. It is important that the government consider a variety of different types of authors as they work to shape author-friendly laws and policies, and we look forward to engaging with policy makers to help raise awareness of this important issue.
Privacy may not seem like an important issue for authors who write to be read: after all, our members are often motivated by a desire to share their creations broadly. But writing in the digital world increasingly presents us with new considerations in the realm of personal and digital privacy. This post surveys an important privacy-related issue for authors: the right to speak or write anonymously, and will be the first in a new series on privacy considerations for public-minded authors.
Why Publish Anonymously?
The tradition of authors publishing anonymously, or under a pseudonym, stretches back centuries. Authors choose to publish works of authorship under pseudonyms or anonymously for a variety of reasons. Authors affiliated with academic institutions may prefer to publish their work under a different name in order to keep their academic and authorial identities separate. Some authors publish under both their real names and pseudonyms to explore new styles or genres of writing. Authors writing about controversial topics may also choose to use pseudonyms or publish anonymously in order to maintain personal privacy while contributing to our understanding of such topics. Pseudonyms also allow authors to write works jointly under a single name.
Historical Pseudonyms
Notable pseudonyms from the past show the breadth of motivations authors might have for pursuing this path, as well as the advantages of using pseudonyms. For example, in the mid-1800s, the Brontë sisters (Anne, Charlotte, and Emily) began publishing under the names Acton, Currer, and Ellis Bell to conceal the fact that they were women. After being rejected from multiple literary publications due to gender biases of the time, writing under male pen names gave the Brontës a path forward to share their creations with the world. Jane Eyre and Wuthering Heights have had a deep and profound impact on our literary tradition, and the Brontës’ ability to publish pseudonymously is what made this possible.
The 19th century writer Mary Ann Evans (better known by her pen name, George Eliot), on the other hand, elected to use a male pen name in order to disassociate herself from preconceived notions about female authors. She was also motivated by a desire to keep her previous work as a translator, critic, and editor—which did bear her real name—separate from her identity as a fiction author. Other authors from the past, such as C.S. Lewis and the famed contemporary Italian novelist Elena Ferrante, have used pen names in order to maintain their personal privacy and avoid public scrutiny while still engaging with the literary world.
Pseudonyms can also allow multiple authors to work together under a single author name, to better appeal to readers or to accommodate publishing conventions. The idea for the Nancy Drew books, for example, originated with Edward Stratemeyer, who also created the Hardy Boys series. Stratemeyer generated ideas for childrens’ novels and then hired ghostwriters to execute his vision. The series’ “author,” Carolyn Keene, never existed. Instead, her name stands in for the slew of ghostwriters who wrote the novels over time. By using a single author name for these books, Stratemeyer (and later, his estate) was able to create a sense of continuity and build reputational capital for the fictional Keene, captivating multiple generations of young readers.
Anonymous Works
Rather than use a pseudonym, some authors choose to publish their works anonymously, so that no author at all is listed on or associated with the work. Like using a pseudonym, publishing anonymously divorces the author’s real identity from the work. But unlike using a pseudonym, an anonymous work conspicuously lacks an author at all. Throughout history, politically or socially controversial works have been published anonymously. Mary Shelley’s Frankenstein was originally published anonymously, and some have speculated that this was due in part to her fear of losing custody of her children were she to be associated with the monstrous tale. More recently, Go Ask Alice, a book about a 15-year old girl’s descent into drug addiction, was published anonymously. The work presented itself as a diary, and the anonymous author led to debate about the work’s veracity. While the book is now considered to be fictional, the anonymous authorship created an implication that the work was somehow a “real” diary, which colored the reading experience for contemporaneous audiences.
Pseudonyms, Anonymity and Copyright
The U.S. Copyright system accommodates authors’ rights to publish pseudonymously in a number of different ways, underscoring the importance of this right as a matter of public policy. First, and most importantly, the Copyright Act provides an avenue for an author to register their work under a pseudonym (longtime readers may recall that copyright registration is not necessary in order for a work to be protected by copyright, but can provide significant benefits in many circumstances). An author can use both their pseudonym and their legal name on their copyright registration, or their pseudonym only. If an author does use their legal name on their copyright registration for a pseudonymously published work, it is important to understand from a privacy perspective that the author’s legal name will become a part of the public record, as copyright registrations are publicly available. If an author registers their copyright under a pseudonym and does not use their legal name in the registration, their legal name will not be made public.
However, there is a trade off for authors who register copyrights under a pseudonym. The duration of copyright protection is different for pseudonymously authored works: rather than being the life of the author plus 70 years, the copyright term for pseudonymous works is 95 years from the date of creation. This is because, without a real person’s identity to associate with the copyright, it is impossible to measure the life of the author. Additionally, a pseudonym itself cannot be copyrighted, as names and short phrases are outside the scope of copyright protection (though in some instances, words or marks identifying the author could be protected in other ways, such as by trademark law). This means that it is possible for multiple authors to use the same pseudonym, which can create confusion for readers and be a detriment to those authors’ ability to reach them.
Authors are also empowered by the copyright system to register copyrights anonymously. As with pseudonymous works, anonymous works are subject to copyright protection for 95 years from the date of creation, since the life of the author cannot be ascertained without an author being named. Even if a work is registered anonymously, its author can sue to enforce the copyright (though they will likely lose their anonymity in the process). Anonymous works pose challenges for secondary users, however, because it leaves creators who may want to use the anonymous works in their own works without a point of contact.
Authors Alliance is pleased to announce that we have joined with several civil society and library organizations (EFF, CCIA, ALA, ARL, OTW and ACRL) on an amicus brief submitted to the Ninth Circuit Court of Appeals in Hunley v. Instagram, a case about whether individuals and organizations that merely link to content can be liable for secondary copyright infringement, a judicial doctrine which places liability on a party that knowingly contributes to or facilitates copyright infringement, but does not itself directly infringe a copyright. More specifically, the case asks whether Instagram can be secondarily liable for copyright infringement when users use its “embedding” feature, whereby websites and platforms can employ code to display an Instagram post within their own content.
The Case
The case arose when a group of photographers, who had captured images related to the death of George Floyd and the 2016 election, became upset that their images were being used in a variety of media outlets without permission. The outlets had used Instagram’s embedding tool to link and post the images rather than copying the images directly. The photographers then sued Instagram in the Northern District of California, on the theory that by offering the “embedding” feature, it was facilitating copyright infringement of others and therefore liable.
The district court dismissed the photographers’ claim because it did not pass muster under an inquiry known as the “server test,” established in the seminal Ninth Circuit case, Perfect 10 v. Amazon. The server test is premised on the idea that a website or platform does not violate the copyright holder’s exclusive right to display their work when a copy of the work is not stored on that website or platform’s servers. In short, the inquiry asks whether the work was stored on a website’s server, in which case the website could be liable for infringement, or whether that website merely links elsewhere without storing a copy of the work, in which case it cannot. When media outlets in this case embedded Instagram posts into their content, they did so using code that embeds and displays the post, but the posts were not actually stored on the outlets’ servers. Therefore, the district court found that Instagram was not liable for secondary infringement under the server test.
Our amicus brief asks the Ninth Circuit to affirm the district court’s dismissal of the photographers’ complaint and the continued viability of the server test. It argues that the Perfect 10 server test should not be discarded, as it has paved the way for an internet that depends on the use of hyperlinks to connect information and present it efficiently. The brief explains how linking works, why linking is important, and the negative consequences for a wide variety of internet users—including authors—that could occur if the court narrows or rejects the server test.
First, our brief explains how embedding and linking work: when an article or website links to other content, it accomplishes this by using computer code to incorporate another’s content into the work and/or direct users to it. Our brief argues that linking, and particularly the act of inline linking (providing links within the text of a website or blog post itself, as we have done throughout this post) is fundamental to the internet as we know it. Online advertising, message boards, and social media platforms depend on the ability to connect sources of information and direct users elsewhere online.
Second, our brief argues that abandoning or narrowing the Perfect 10 server test could introduce liability for inline linking. Like embedding social media posts, inline linking to other content incorporates materials created by others indirectly without the secondary user actually hosting that content on a server. In this way, inline linking allows internet users to efficiently verify information or learn more about a given topic in just a click. Inline linking is in this way analogous to embedding, meaning that a decision in favor of secondary liability in this case could threaten the legality of inline linking, potentially disrupting the very fabric of the internet as we know it.
Like the general internet-using public, authors also depend on their ability to link to other sources in their online writings to cite to other sources and engage with other works of authorship. In fact, this is why we decided to weigh in on this case: a decision that introduces liability for inline linking could drastically alter how authors can cite to other sources of information and how they can conduct research in a digital environment. Authors rely on inline linking to save space and preserve the readability of their works while citing sources and engaging with other works. Authors also depend on online linking to perform research, as it can quickly and easily direct them to new sources of information. As more and more works are born digital, an author’s ability to link to other content to enrich their scholarship has become more important than ever. It is crucial that this ability is protected in order for the internet to continue to be an engine of learning and the advancement of knowledge.
So far, the parties have submitted their opening briefs in this case, and several other amicus briefs have been filed. Oral argument has not yet been scheduled. Authors Alliance will keep our readers informed about updates in this case as it moves forward.
Last month, publisher John Wiley & Sons madeheadlines when it made the controversial decision to abruptly remove over 1,300 ebooks from academic library collections. It did so by removing these titles from ProQuest Academic Complete, a large collection of ebooks that many libraries subscribe to. Earlier this week, Wiley made headlines again when it announced it was temporarily restoring access in the face of public pressure.
As has unfortunately been typical with other changes in how publishers work (or refuse to work) with libraries, authors of these books were left in the dark, with little say on the decision. We have heard from many authors who believe, as we do, that libraries play an extraordinarily important role in preserving and providing access to the materials we write, in all formats, and we believe they should be able to purchase access on reasonable terms so they can fulfill their missions. We’re writing this post to highlight the Wiley situation and outline some ways that authors can make their voices heard.
The Wiley Ebook Situation
Wiley’s move was particularly shocking since the removal of access coincided with the beginning of the academic term. Countless students who were relying on library access to textbooks they needed for their academic courses lost this access exactly when these texts were most needed. It is increasingly common for publishers of academic texts like these to refuse to sell electronic copies to libraries at all, which seems to be the tactic Wiley was pursuing here, leaving these students with no low cost alternative (and in fact, Wiley reportedly refuses to sell textbooks to libraries at all, in either digital or print format). This left instructors scrambling to find new texts to assign, redesign syllabi, and otherwise adopt their courses to a loss of access to the Wiley texts, at a moment when their attention should have been focused on teaching and welcoming students.
Authors Alliance began working with #ebookSOS to raise awareness of this issue among authors whose works were removed from library collections in an effort to encourage Wiley to reverse its decision and provide assurances that it will not take measures like these in the future. The authors we’ve heard from want their books to be read, to serve learning, and to be used to share knowledge with the world. Some of these authors view Wiley’s decision as a betrayal, and indeed, it is hard to square with Wiley’s asserted commitment to “[e]nabling discovery by supporting access to knowledge and fueling the engines of research.”
Earlier this week, Wiley relented. It announced that it had decided to temporarily reverse course, restoring access to the removed texts until June 2023, when they will once again be removed. Wiley apologized for the “disruption” the move caused to students, libraries, and instructors, admitting that it caught them off guard. But while this may ease the burden on instructors and students for now, librarians have resoundingly found the measure to be insufficient. Temporarily restoring access to these particular texts does not solve the fundamental problem that large publishers like Wiley can—and do—unilaterally and without warning remove books from digital library shelves, even if their motive is purely to increase their own profits. We’ve continued to hear from authors who have strong reservations both about Wiley’s decision and how it went about making it. If you are an author published by Wiley and have thoughts about its decision to remove access to these ebooks, we would love to hear from you: Please write to us at info@authorsalliance.org.
What Authors Can Do
Unfortunately, this is not the first time that a publisher has acted unilaterally to make its ebooks less accessible to the detriment of readers and authors. Trade publisher MacMillan at one point announced it would employ a two-week embargo before libraries could acquire newly published titles as ebooks. Similarly, rising ebook prices during the pandemic hurt many students who relied on these works to learn. Yet, as Wiley’s response to the outcry following its announcement shows, a concerted campaign to pressure these publishers can have results. For example, MacMillan ultimately abandoned its plans for an ebook embargo following a boycott of all its ebook titles by various library systems.
Most authors have little say in how publishers distribute their works. Publishing contracts typically give publishers broad discretion to determine when, how, and on what terms authors’ books are sold. While it is understandable that authors will not be involved in every decision about distribution, authors have placed trust in publishers that they will make reasonable decisions. So, what can authors do?
First, as the Wiley ebook situation has shown, authors’ voices do matter. If you have concerns about your book being available to libraries, speak out! One reason that Authors Alliance exists is to help amplify your voice and help publishers understand your views on how their legal and policy decisions affect your interests in making your books available to the world. If you’re wondering about how we might help, please get in touch—we’d love to hear from you. Second, authors do have an opportunity to influence how their books are shared when negotiating their publishing contracts. There are no guarantees that a publisher will accept your proposed contract language (and we suspect most will be resistant). But given that several publishers have recently demonstrated their unwillingness to make reasonable distribution decisions, it seems to us equally reasonable to ask for contractual assurances that they will continue to sell your book to libraries on reasonable terms, in all formats. For some language to serve as a starting point, #ebooksos has shared their model contract language for authors, here.
Last month in our newsletter to members (join here so you don’t miss future news!), we shared a call to sign on to an open letter, organized by Fight for the Future, on behalf of authors in support of libraries. We’re really pleased to announce that this letter is now posted online and open for more signatures here. We encourage you to read it and sign if you support its message.
From our perspective, libraries are critically important partners in making sure that authors’ works are read and preserved. As the letter explains, “Libraries are a fundamental collective good.” The letter’s signatories “are disheartened by the recent attacks against libraries being made in our name by trade associations such as the Association of American Publishers and the Publishers Association: undermining the traditional rights of libraries to own and preserve books, intimidating libraries with lawsuits, and smearing librarians.”
Unfortunately, and predictably, the letter has received almost instant condemnation from the Authors Guild, the AAP (which, you might recall, has asserted that it has acted as legal counsel for the publishers who brought the Hachette v. Internet Archive lawsuit), and other related groups. They assert: 1) that authors don’t really understand what the Internet Archive controlled digital lending lawsuit is about, and if they did they wouldn’t support it, and 2) that “real libraries” don’t engage in activities like the controlled digital lending that is the subject of the Internet Archive lawsuit.
Neither argument holds weight. As part of our own efforts to support controlled digital lending in this case, Authors Alliance conducted a survey of our members and other authors. Responses showed that many authors do support CDL, and support it strongly. Additionally, many librariesacross the countrypractice CDL: it is far from a practice unique to the Internet Archive.
One of Authors Alliance’s long standing goals is to support authors’ freedom of expression. As we’ve recently highlighted, sometimes challenges to those rights come from unusual sources in the law.
Jack’s work and that of several aligned groups has now resulted in three pieces of proposed legislation–one federal bill called the “Restoring Artistic Protection Act” (RAP Act), and two similar bills at the state level in New York and California–that would amend the rules of evidence to make it more difficult for prosecutors to introduce a defendant’s creative or artistic expression as evidence against a defendant in a criminal case. Authors Alliance supports these efforts. The California bill is now sitting on Governor Newsom’s desk, and we have written a letter to the Governor explaining why this legislation is important not just to rap artists, but to all authors and creators, and expressing our hope that it becomes law. Governor Newsom has until September 30th to sign or veto the bill. If he neither signs nor vetoes it, the bill will become law, going into effect in January 2023.
These bills–while addressing discriminatory use of rap lyrics against defendants–are designed to apply broadly to protect many other creators, including authors, from having their creative expressions used against them in court. The RAP Act, for example, states that as a general matter, ”evidence of a defendant’s creative or artistic expression, whether original or derivative, is not admissible against such defendant in a criminal case.” It allows for limited exceptions, such as when the lyrics make a specific reference to the alleged crime, but nonetheless provides strong protections for creative expression. The Act goes on to define “creative or artistic expression” broadly, as “the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements or symbols, including music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.’’
We recently had the opportunity to sit down with Jack and discuss with him the background, and future, of this legislation:
Tell me about what motivated this effort?
Jack: The issues motivating the RAP Act have been going on for a long time. While it’s almost unthinkable that someone would use the music of Johnny Cash (“I shot a man in Reno just to watch him die”) or Eric Clapton (who sang “I Shot the Sheriff,” covering Bob Marley) as evidence against them in a trial, rap lyrics have been used again and again against rappers. Conservatively, scholars have identified over 500 cases in which prosecutors have used rap lyrics as evidence against an artist in court.
The admission of rap lyrics can be extremely detrimental to defendants. Over 25 years of research has shown that the mere association with rap can create a strong negative bias in jurors, who will take the lyrics as more literal, more violent, and more threatening, as compared to lyrics from other genres. All you have to do is label it “rap.”
Can you tell me about the origins of these bills?
The work on this issue began almost a decade ago. Charis Kubrin, who co-authored the Rap on Trial Legal Guide, Charis Kubrin, has been writing about this issue since 2005, and has since conducted astonishingresearch demonstrating a massive risk of bias when rap lyrics are introduced. When she began to hear regularly from defense attorneys needing help with this issue, we conceived of developing the Guide. Over three years later, with the help of dozens of law students in the IP, Arts, and Tech Clinic at UCI Law, we published the Guide along with a Brief Bank and Case Compendium.
What has been remarkable is that as we surfaced these issues, lawmakers in New York and California found out about them on their own and took action. And proponents from both the entertainment industry and the criminal justice movement have been working with them. The New York bill became the basis for the current federal bill, and the California bill is now on Governor Newsom’s desk for his signature.
How do these bills actually work?
These bills raise the bar for introducing rap lyrics as evidence. The federal bill, for example, would require a prosecutor to establish by “clear and convincing evidence” that the defendant intended the lyrics to have a literal meaning or that the expression refers to the “the specific facts of the crime alleged.”
The California bill is a little bit different. It says that the court should start with the presumption that creative expression is not probative, and requires that prosecutors have to overcome that presumption by showing that the lyrics in question meet a set of criteria for introduction as evidence, such as that they match the specific elements of the crime, or were written close in time to the alleged crime. Notably, the court is required to look at whether the introduction will introduce bias, and must look at all the research I mentioned on the issue of negative bias associated with rap.
How do these bills affect other creators?
These bills apply broadly, protecting artists, authors and all other types of creators. All the cases we’ve identified in our research have been focused on the uniquely negative use of rap lyrics against defendants–but you can see the importance of these protections for authors and other creators, especially in the current political climate. For example, with book censorship taking hold in a variety of places, it’s easy to imagine an aggressive prosecutor trying to use a controversial author’s fiction writing as evidence of criminal activity.
What can authors do?
The federal RAP Act has been co-sponsored by representatives Bowman (NY), Johnson (GA), Maloney (NY), and Jayapal (WA). If you support the bill, you should contact your representative expressing your support.
If you are in California, AB 2799 is currently on Governor Newsom’s desk awaiting his signature to become law. You can contact his office to express your support and encourage him to sign the bill.
Today, Authors Alliance joined 20 public interest, civil society, and other like-minded organizations in signing on to a letter opposing the latest iteration of the Journalism Competition and Preservation Act (“JCPA”). The full text of the letter can be found here. Last year, Authors Alliance signed on to an earlier letter voicing opposition to the JCPA when it was initially proposed. A new version of the bill was recently released in the Senate, prompting the bill’s opponents to reiterate our concerns.
In brief, the JCPA would enable collective bargaining by news organizations with large online platforms by creating a “safe harbor” from antitrust law to allow media organizations to band together and negotiate with these platforms. This blog post will explain our concerns about the bill and provide an update on how the legislation has evolved in the months since it was first proposed.
Problems with the JCPA
Touted as bipartisan legislation intended to protect journalism from unfair encroachment by large tech companies, the legislation has received support from groups such as the Authors Guild and some news publications. But civil society organizations have drawn attention to serious problems with the legislation for those who care about robust fair use rights and access to knowledge.
The JCPA would force platforms to negotiate with news publications for “access” to their content to engage in basic activities such as linking to the news publication’s website. By creating what some have dubbed a “link tax,” the JCPA could lead organizations and individuals to link less to other sources out of fear of copyright liability, creating a chilling effect on online speech and making knowledge less accessible. The JCPA could also expand the scope of copyright by covering the aggregation of snippets or headlines from press publications—information that is in many cases not entitled to copyright protection. The JCPA may also work to entrench the largest press publishers while disadvantaging smaller publishers, who lack the sophistication or resources to participate in this collective bargaining.
Changes to Legislative Language
The latest revised bill represents the third round of revisions to the JCPA (Public Knowledge has published comprehensive discussions of the first and second rounds of revisions in recent months for readers interested in learning more). Unfortunately, the latest changes to the JCPA does little to address the concerns voiced by Authors Alliance and our co-signatories last year.
There is some evidence that the bill’s sponsors heard the concerns voiced by Authors Alliance and others, but the changes do not go nearly far enough towards ameliorating our concerns. For example, the latest version of the bill includes a provision stating that it does modify, expand, or alter the rights guaranteed under copyright. But the legislation could also cover activities that are considered to be fair uses (such as aggregating “snippets” from articles and linking), creating uncertainty as to how the fair use doctrine interacts with this proposed legislation.
The revised bill also includes an “employee cap” which would bar news organizations with over 1,500 employees from participating in the anticipated collective bargaining to help address concerns about entrenching the largest players. But this would exclude just three of the country’s largest news publications, making it ineffective at addressing monopoly concerns. As today’s letter points out, the legislation as currently envisioned could “cement and stimulate consolidation in the industry and create new barriers to entry for new and innovative models of truly independent, local journalism.” To make matters worse, the JCPA does nothing to ensure that arbitration that any gains to news organizations will actually go to the journalists actually writing the articles. The legislation establishes “collective bargaining” rights for publications, many of which do not allow their employees to collectively bargain. By prioritizing publications over the authors who make these publications possible, the bill does little to address the difficulties faced by journalists and other authors.
Finally, other changes in the legislation create new problems. New language in the bill would force platforms to carry content of digital journalism organizations that participate in collective negotiations, which could lead to platforms being required to aggregate content containing extreme views or misinformation. This raises serious free expression concerns.
Authors Alliance cares deeply about a vibrant and diverse publishing ecosystem where smaller publishers are not disadvantaged, and the legislation as envisioned would do just the opposite.
