Yesterday, Authors Alliance submitted a comment to the Copyright Office in response to a Notice of Inquiry regarding developing regulations to govern the copyright small claims procedure under the newly enacted CASE Act. In the past, we have spoken out in favor of a sensible copyright small claims process, but cautioned that the CASE Act could invite abuse and pose a high likelihood of harm to authors as both claimants and respondents. Now, Authors Alliance welcomes the opportunity to provide our feedback to the Copyright Office so it can work to ensure that the Copyright Claims Board (“CCB”), which will hear copyright small claims, is an efficient, effective, and respected forum, and moreover that it serves the individual authors and creators it is intended to benefit. We summarize our input below, and invite you to read our full comment for more detail.
Notice Sending
One of the areas in which the Copyright Office requested input is the contents of the notices that will be sent to respondents when a claimant makes a claim against them before the CCB. The CASE Act mandates that these respondents be given an opportunity to opt-out of the proceedings and instead have the claim proceed in federal court, and requires the CCB or an entity acting on its behalf to send respondents two separate notices notifying the respondent of the claim against them. Regarding the contents of these notices, Authors Alliance advocated for clear, comprehensive, and informative notices which will convey to the recipients the nature of the CCB proceedings and the consequences of failing to opt out. We also requested that the CCB include information on these notices about why a respondent might want to opt in or opt out. If a respondent fails to opt out or appear before the CCB, they may be subject to a default judgment that is subject to limited review in federal court. It is our hope that if the Copyright Office implements our suggestions, notices will not be ignored, which could leave unwary respondents on the hook for damages.
Opt-Out
The Copyright Office also sought guidance on the opt-out procedure for respondents who want to opt out of the CCB proceedings. Authors Alliance strongly urged the Office to make opting out as simple as possible for respondents of different levels of technical and legal sophistication. We suggested the Office allow respondents to opt out using a variety of methods: email, online form, over the phone, or by standard mail. We also encouraged the Office to develop a publicly available list of entities that intend to opt out in order to make the forum more efficient for claimants, who can check this list to see if the party they are pursuing a claim against indicates an intent to affirmatively opt out before filing a claim. Finally, we provided feedback on a special opt-out provision for libraries and archives, advocating for a robust opt-out provision that would allow libraries and archives to avoid the cost of defending excessive claims and spend their precious resources elsewhere to further the public good.
Limiting Cases
The Copyright Office also asked for input on whether and how to limit the number of cases that a given party can bring before the CCB over a calendar year. While Authors Alliance did not propose a specific threshold (which would be difficult if not impossible to do without knowing the what the CCB’s caseload will look like), we did commend the Office for its attention to this matter, and suggested that it impose meaningful limits on the number of cases that can be brought by a given party, with the overall goal of deterring unscrupulous actors while keeping the forum open and accessible to those who most need it—individual creators and authors seeking to enforce or defend their rights. We also suggested that the CCB implement regulations to deter “repeat players” from bringing repeated and ill-founded claims.
Guidelines on Unsuitability for the Forum and Award of Statutory Damages
Authors Alliance also suggested that the Copyright Office develop sets of guidelines for the CCB to use when determining whether a particular claim is appropriate for the forum and guidelines for the award of statutory damages. The CASE Act requires that the CCB dismiss claims that are not suitable for CCB adjudication, but does not provide much in the way of guidance as to how to determine whether the CCB is a suitable forum for a given claim. We suggested that the Office set guidelines to help the CCB determine whether a case is suitable for the proceedings, encouraging the CCB to dismiss complicated, fact-specific claims, and hear only straightforward infringement claims. Complicated, fact-specific issues like fair use are not appropriate for this streamlined procedure, and guidelines to this effect would go a long way to making the forum efficient and accessible. Regarding statutory damages, we suggested that the Copyright Office issue guidelines for the CCB to use when deciding whether to award statutory damages. In general, damages awards be proportional to the actual harm from the alleged infringement, rather than the maximum allowable damages under the statute ($15,000 per work and no more than $30,000 overall), which is often grossly disproportionate to lost licensing revenue the claimant would have received if the alleged infringer had obtained a license to use the work. We also suggested that the CCB should be particularly mindful to avoid statutory damages in cases of noncommercial uses.
UPDATE: In March 2022, the U.S. Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, announcing it will hear the fair use case during next year’s term. Authors Alliance will continue to monitor this case and update our readers as it moves forward.
This year is shaping up to be a big one for copyright: a new batch of works entered the public domain, the 2020 year-end stimulus bill made several changes to copyright law, the Copyright Office is currently undergoing its triennial rulemaking process to grant exemptions to section 1201’s prohibition on breaking digital locks, and courts are considering ever more difficult issues related to fair use. Two recent cases that have been making waves in the copyright community are Google LLC v. Oracle America, Inc. and The Andy Warhol Foundation v. Goldsmith. Both cases discuss “transformativeness,” a key component of the fair use test, but reach different results: In the former, the Supreme Court ruled in favor of fair use, and in the latter, the Second Circuit Court ruled against fair use.
At Authors Alliance, we care about fair use because it helps authors meet their goals of seeing their works shared broadly, facilitating the use of copyrighted works in some circumstances for certain specific purposes such as research, commentary, and teaching. Fair use also allows authors to use existing materials to strengthen their own research, commentary, and scholarship. We offer short summaries and takeaways from these cases here to keep you apprised of the goings on in copyright and offer some guidance on how these decisions might impact fair use cases more directly related to authors of literary works in the future.
Earlier this month, the Supreme Court issued its long-awaited decision in Google v. Oracle, a case that has been percolating in the lower courts for years, which concerned the question of whether Google’s unauthorized use of computer code to which Oracle held the copyright constituted fair use. In the case, Google was appealing a ruling by the U.S. Court of Appeals for the Federal Circuit, which had held that Google’s use of APIs (also referred to as “declaring code”) was not fair use, despite a jury reaching the opposite conclusion. Google appealed to the Supreme Court on the question of whether APIs were protected by copyright at all and, if so, whether Google’s use of the code was fair.
In a decision by Justice Breyer, the Court skirted the question of whether APIs were copyrightable, but overturned the Federal Circuit’s finding of infringement, holding that Google’s use of the APIs was fair use. To come to this determination, the Court considered the four factors involved in fair use determinations. It found that declaring code was functional in nature: unlike the more creative “implementing code” involved in designing Android (and written by Google), the Court viewed the declaring code as equivalent to “building blocks.”
The Court also found that Google’s use was transformative in purpose and character because it used Oracle’s declaring code, as well as its own computer code, to create a new platform offering “a new collection of tasks operating in a distinct and different computing environment.” The Court stated that this was sufficiently transformative to overcome the commercial nature of Google’s endeavor—the creation of the massively popular Android operating system. The Court further found that Google used a small quantity of Oracle’s code relative to the total code it used to create Android, overcoming arguments that the 11,500 lines of Oracle’s code that Google used was quite a substantial amount. Finally, the Court considered whether Google’s Android usurped a market Oracle could have otherwise profited from, and decided that Oracle was not well-positioned to develop a mobile platform at the time and that Google had not usurped its market.
For authors who care about the widespread dissemination of their works and contributing to the commons of knowledge, Google’s fair use victory may seem a hopeful sign. But there is reason to believe that the holding will be of limited applicability in the future: It is not clear that it even applies to all software copyright issues. The decision—and importance of details such as the number of lines of code that were actually copied—shows how fact-sensitive fair use is. And the Court’s vision of transformativeness in the context of computer code is not an easy fit for other contexts, creating uncertainty as to whether and how the case will affect authors and creators in the future.
In late March, the Second Circuit Court of Appeals issued its opinion in The Andy Warhol Foundation v. Goldsmith, a case concerning a series of screenprinted images created by artist Andy Warhol depicting the late musical artist (formerly known as) Prince, reproduced in court documents and referred to as the Prince series. The first image of Prince that Warhol created was commissioned by Vanity Fair, and was based on a photograph taken by plaintiff Lynn Goldsmith, a renowned celebrity photographer. All of this was authorized pursuant to agreements between Goldsmith and Vanity Fair and between Warhol and Vanity Fair. The Warhol image that appeared in Vanity Fair included credit lines for both Warhol— the artist—and Goldsmith—the photographer of the work upon which Warhol’s was based. But Warhol did not stop there— he created fourteen additional works in the same style, comprising the Prince series that was the subject of the litigation.
In the case, Goldsmith sued the Warhol Foundation for infringement in the New York district court, alleging that the Prince series infringed on her copyright in the photograph of Prince. The district court found for the Warhol Foundation on fair use grounds, focusing on the transformative nature of Warhol’s silkscreen prints, which it believed “transformed Prince from a vulnerable, uncomfortable person,” as he was presented in Goldsmith’s photograph, “to an iconic, larger-than-life figure[.]” Warhol’s works also changed the image of Prince from a black and white, three-dimensional representation to two dimensional, colorful representations. Goldsmith appealed the ruling to the Second Circuit, which overturned the district court’s finding of fair use.
The Second Circuit disagreed with the district court that Warhol’s images were transformative. In its view, the district court improperly took on “the role of art critic,” making an artistic determination that Warhol’s works were transformative, rather than comparing the elements of the images and their purposes and characters. Under this approach, the Second Circuit concluded that the work retained “essential elements” of Goldsmith’s photograph, and was functionally the same work with a new aesthetic.
Unlike the Google case, the narrow reading of transformativeness in Warhol v. Goldsmith can more readily be applied in other contexts where other creative works could be broken down into their elements and compared. The Warhol court was not the only one in recent months to constrain the so-called “transformative use test,” and courts are increasingly moving away from considering transformativeness subjectively, and towards examining elements of the two works more objectively. Yet the Google decision took a broader approach to fair use, and one which, as a Supreme Court case, will be more influential to courts across the country. The variations in treatment of fair use in general, and transformativeness specifically, show how fair use is a context-specific determination. Creators who would like to learn more about how fair use applies to the common situations they face can turn to our fair use guide for nonfiction authors and the best practices guides specific to other communities of creators.
Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, is petitioning the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining research on literary works that are distributed electronically and motion pictures. Yesterday, Authors Alliance participated in public hearings hosted by the Copyright Office to consider the merits of the proposed exemption.
Text and data mining (“TDM”) refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use.
But TDM researchers are currently hindered by Section 1201 of the DMCA, which prohibits the circumvention of TPMs used by copyright owners to control access to their works. Section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize.
At yesterday’s hearing, the clinical team from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School representing Authors Alliance testified about the details of the exemption and its immense value for TDM researchers. The team explained how section 1201 prevents those researchers from creating the corpora of works they need to discover new insights from text and data mining, interfering with their ability to generate new copyrighted works that add to our cultural understanding and advance human knowledge.
Specifically, clinic students, Ziyad Alghamdi, Tait Anderson, and Erin Moore, and clinical supervisor, Professor Erik Stallman, shared how section 1201’s prohibitions chill new research and hinder the progress of knowledge in at least three ways: 1) forcing researchers to limit datasets in a way that makes their findings less illuminating than they would otherwise be, 2) causing researchers to artificially constrain research to public domain texts, and 3) leading researchers to abandon potential TDM projects altogether.
Opponents of the exemption testifying in the hearing—representing publishers, the software industry, and content licensing organizations— raised concerns about whether TDM was fair use under copyright law, whether the proposed security measures for the TDM corpora were sufficient to allay their security concerns, and whether alternatives like pre-assembled TDM corpora would be adequate for TDM researchers.
Regarding fair use, Erin Moore testified that relevant case law firmly establishes TDM as a fair use, and that the fact that the use could have been officially licensed by the copyright holder does not mean the use is not a fair one. Moore also emphasized the noncommercial and educational nature of the uses TDM researchers seek to make under this exemption, classic features of fair use. To address opponents’ security concerns, Tait Anderson explained that “reasonable security measures” as used in our petition was concrete enough to require researchers to take precautions to prevent against public dissemination and unauthorized sharing, while not being overly prescriptive in order to accommodate a wide range of TDM projects with different levels of sensitivity in the underlying data. On the topic of existing alternatives to the TDM corpora the TDM researchers seek to compile, Ziyad Alghamdi highlighted the limitations of commercial TDM databases like Hathitrust, which are both limited in the scope of works they contain and how TDM research can be conducted using these works. TDM researchers are seeking this exemption in part because these databases are costly, difficult to use, and incomplete for answering research questions about contemporary literary works and films.
Other topics discussed during the lively hearing included whether the proposed exemption should align with similar carve outs for TDM research in Europe and Japan, how sharing corpora with affiliated researchers for peer review purposes might work, and how and whether literary works and films should be analyzed differently for the purposes of the exemption. The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.
This is the second in a two post series on how libraries have responded to the COVID-19 pandemic, one year after the American Library Association recommended that libraries across the country close. Last week, we discussed the ways in which libraries have supported communities and readers through expansion of traditional services and new initiatives aimed at preservation.
On March 17, 2020, the American Library Association (“ALA”) recommended that public libraries across the country close in response to the challenges posed by the COVID-19 pandemic. That same day, publishing conglomerate Macmillan (one of the so-called “Big Five” publishers that dominate much of the trade book market) announced it would end a controversial embargo on sales of e-books to libraries, also stating its intention to temporarily lower prices on some library e-book licenses “to help expand libraries collections in these difficult times.”
One year later, many libraries remain shuttered or have scaled back their hours, services, and capabilities. Yet e-book lending has skyrocketed, as e-books can be checked out by patrons from the safety of their homes. Libraries have adapted to this increased demand in a variety of ways despite limited resources and budgets. By increasing digital offerings with a special emphasis on making e-book lending available to patrons, libraries have pivoted to serve the needs of a community forced by external circumstances to turn to the internet for information, culture, and human connection.
Library E-Book Lending in the “Before Time”
Prior to the start of the pandemic, a dispute between publishers and libraries on the subjects of e-book pricing and availability to patrons had been quietly simmering. Between 2018 and 2019, four of the Big Five publishers changed licensing terms and raised prices of e-books for libraries. And the bookselling giant Amazon, which has launched its own publishing operations under the name “Amazon Publishing,” has taken an even harsher approach to e-book library lending: it refuses to sell its titles to libraries altogether. In a statement to the Washington Post, a representative from Amazon Publishing stated that it was “not clear to us that current digital library lending models fairly balance the interests of authors and library patrons[.]”
In general, libraries are able to loan out e-books because they acquire licenses to do so. Typically, a copy cannot be checked out by more than one patron at a time and only for a set number of times (with 26 and 52 checkouts being most common), and the licenses may also be limited duration, typically one to two years. Moreover, libraries pay up to five times more for e-books than consumers do. This custom reflects the fact that a library lends each e-book out multiple times, with multiple end readers rather than the single user who buys an e-book from Amazon or the iBook store. But libraries are typically charged the same price for physical books as are consumers, creating an imbalance in access across the two formats. This imbalance has become all the more salient during the pandemic due to the limitations on access to physical books and the budgetary constraints that are felt around the country.
By 2018, 90% of American libraries offered digital loans. As e-book library lending increased in popularity, publishers argued that the popularity of library e-book lending led to reduced profits. In 2019, Macmillan revealed that its revenue per library e-book read was down to “two dollars and dropping,” apparently “a small fraction” of what it makes on consumer purchases. Macmillan and other large publishers complained that the “frictionless” nature of e-book lending means that readers can acquire e-books with the same relative ease as purchasing those e-books. But there is reason to believe the fear that library e-book lending hurts e-book sales is ill-founded—in the first 10 months of 2020, when library e-book checkouts began to increase dramatically, the American Association of Publishers reported that e-book sales had increased by over 16% rather than dropping as more readers turned to library e-books.
Library E-Book Lending During the Pandemic
During the pandemic, library e-book lending increased manifold across the country. In April 2020, the Congressional Research Service reported that demand for e-books (both from libraries and readers who purchased e-books) had increased significantly, and that libraries and organizations were searching for lending models to address this increased demand. OverDrive, the nation’s leading e-book lending platform and maker of the “Libby” library lending app, saw checkouts increase by over 50% during the early months of the pandemic, and many individuallibrarysystems similarly saw large increases in e-book checkouts. New library partnerships with hoopla, another leading lending platform, have resulted in a 20% increase in membership for the platform. At the most basic level, this uptick in demand is not difficult to understand: without access to physical library spaces, e-book lending became for many patrons the best option to continue to access works at their local libraries.
To keep up with the increasing demand for e-book loans and better meet patrons where they are, libraries have adapted their programs and procedures to make e-book checkouts more accessible. Libraries began by investing in more e-book licenses and increasing spending on “digital resources.” As the pandemic progressed, libraries around the country began allowing patrons to apply for and obtain library cards online so that new patrons could access e-book offerings. Library systems have also increased investments in new e-book licensing models, such as the “concurrent use model,” which allow libraries to license a “bundle” of loans to meet high demand that do not expire. This model is particularly attractive for public school students, and it has been used to facilitate access to texts during remote learning. Another lending model that has increased in popularity during the pandemic is the deployment of “skip-the-line” or “lucky” copies of new and popular titles. This system allows patrons to choose to check out an e-book for a shorter checkout window, but to avoid long waitlists that can plague popular titles available for regular check out. And this summer, libraries worked to support patrons grappling with racial injustice following the killing of George Floyd and protests across the country by working with OverDrive to offer extended checkouts for books on anti-racism.
Publishers have also adapted their e-book license terms to be more library- and reader-friendly, recognizing the importance of library lending for the American public. By the end of March 2020, all of the Big Five publishers had announced relaxations of their e-book license terms, reducing prices on e-books for libraries by up to 50% and developing “cost per circulation” catalogues that allowed libraries to pay fees per e-book loan for certain titles rather than requiring an upfront payment for a license of limited duration. But these measures were largely intended to be temporary to help libraries struggling to meet their patrons’ needs during the pandemic, and where library e-book lending will go from here is uncertain.
An Uncertain Future for Library E-Book Lending
While progress has been made towards making knowledge and culture more accessible through relaxing barriers to entry for e-book library lending, it is unclear whether publishers and other intermediaries will return to the state of play prior to the pandemic.
Recognizing the need for fair and balanced license terms for library e-books, several states have introduced legislation mandating that publishers must offer libraries e-books that are available to retail consumers, and must do so on “reasonable terms.” And, in Maryland, such a bill was recently approved unanimously by the state legislature, and is currently awaiting final approval by the governor. Amazon Publishing, which until recently refused to budge on its ban on selling e-books to libraries, is reportedly in talks with the Digital Public Library of America to make Amazon Publishing titles available to libraries across the country through DPLA’s lending platform. ReadersFirst, a library organization that advocates for library users’ ability to use loaned e-books in the way they use print books, is optimistic that other publishers may follow suit and work to make their e-books more accessible to libraries and their patrons.
Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, is petitioning the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining research on literary works that are published electronically and motion pictures. This week, we responded to commenters who opposed the petition for this exemption.
Text and data mining (“TDM”) refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use.
But TDM researchers are currently hindered by Section 1201 of the DMCA, which prohibits the circumvention of TPMs used by copyright owners to control access to their works. Section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize. What’s more, Section 1201’s prohibitions force some TDM scholars to focus on works first published before 1926, which are in the public domain. Because authorship was far less diverse then than it is today, focusing TDM on pre-1926 texts privileges white male voices rather than being representative of authors contributing to the commons of knowledge today. For these reasons, our petition and supporting comments ask the Librarian of Congress to grant a new exemption to Section 1201’s anti-circumvention prohibitions that would allow researchers to bypass TPMs on e-books and films for the purpose of conducting TDM research.
Last month, four comments were submitted in opposition to our proposed new exemption, raising concerns about the scope of activities and works that would be covered by the exemption, the intended beneficiaries of the exemption, and security measures for databases of decrypted copies of copyrighted works.
This week, we responded to these comments, explaining that the concerns about the scope of activities and works covered could be addressed by clarifying the bounds of the exemption. We explained the exemption was intended to cover using text and data mining techniques for the purposes of scholarly research and teaching only. With regards to the scope of the works covered, we specified that “literary works,” as used in our petition, would exclude computer programs. Both of these clarifications were made with an aim towards allaying commenters’ concerns about the exemption’s breadth.
We also clarified that the intended beneficiaries of the exemption were “researcher[s] affiliated with a nonprofit library, archive, museum, or institution of higher education[,]” explaining that the exemption’s proponents were not commercial actors, nor were the other intended beneficiaries. Finally, we addressed commenters’ security concerns by explaining that the exemption will require researchers to take “reasonable security measures” to ensure that there is no unauthorized access, noting that the requirement of institutional affiliation will facilitate such security measures.
Next month, we anticipate participating in public hearings hosted by the Copyright Office to consider the merits of the proposed exemptions. We look forward to continuing to work with opposition commenters to address their concerns and with the Copyright Office as it evaluates our petition for this new exemption to facilitate TDM research.
The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.
Authors Alliance, together with Professor Ariel Katz, has requested leave to intervene in Access Copyright v. York University, currently on appeal before the Supreme Court of Canada.
The case involves a claim by Access Copyright, a Canadian copyright collective, which seeks to have York University comply with an interim tariff approved by the Copyright Board of Canada for works in its collection. In response, York University brought a counterclaim seeking a declaration that its guidelines for copying materials for education purposes constituted “fair dealing” under the Copyright Act of Canada. The case raises the question of whether copyright collectives can force users to license content from them, even if the users prefer to comply with their copyright obligations in other ways.
As our motion for leave to intervene explains, Authors Alliance’s interest in the case stems from our members’ desire to see their works reach the largest possible audience and have the greatest possible impact and use, especially by users at educational institutions like York University. Overbroad restrictions on the use of scholarly works frustrate these objectives. In particular, the enforcement of tariffs against educational institutions that choose to comply with their copyright obligations without obtaining a license from a copyright collective would affect Authors Alliance’s members. Mandatory tariffs for academic institutions do not help all authors and may, in fact, harm many of them by making it more difficult for their works to reach readers. In addition, if copyright collectives can impose themselves and their business model on readers as a matter of law, this could imperil the development of alternative business models that would be more amenable to the interests of many of Authors Alliance’s members.
The issue that the appeal raises regarding fair dealing will also affect many of Authors Alliance’s academic author members, including Professor Katz, who are primarily motivated to produce scholarly work in an effort to share and advance knowledge. Academic authorial goals of sharing knowledge and insights, as well as of enhancing their reputations, will be affected by the Supreme Court of Canada’s decision on fair dealing.
If we are granted leave intervene in this appeal, we anticipate participating in written and oral arguments in May. We will keep our readers updated on our intervention and the case.
Authors Alliance is grateful to attorneys Sana Halwani, Paul-Erik Veel, and Jacqueline Chan of Lenczner Slaght for pro bono assistance with this intervention.
The DCA proposes many amendments to key provisions of copyright law. The bill would replace the current “notice-and-takedown” system with a “notice-and-staydown” system whereby, once a copyright holder notifies a service provider that they believe a particular use is infringing, the service provider must remove all subsequent infringing uses unless the user notifies it that the use is licensed or otherwise authorized by law (such as being a fair use). The draft bill would also limit liability for users who use orphan works after a diligent but unsuccessful search for the copyright holder, establish the Copyright Office as a division of the Department of Commerce, and make changes to the Copyright Office’s triennial rule-making process for creating exemptions to the DMCA’s prohibition on bypassing technical protection measures, among other changes.
Our comment responded to the sections of the draft bill that would have the most impact on how our members create, use, and share copyrighted works.
Limitations on Liability Relating to Material Online
Authors Alliance opposes proposed changes in the draft bill that would shift the notice-and-takedown system under section 512 to a notice-and-staydown system. Whether a particular use is infringing depends on context and facts that the relevant online service provider (“OSP”) is unlikely to have. The notice-and-staydown procedure does not account for these fact-sensitive determinations, and a notice-and-staydown requirement would harm authors relying on fair use, a license, or another lawful reason for sharing a work on the platform.
Moreover, a notice-and-staydown requirement will likely jeopardize the vibrant array of platforms for online speech that have been allowed to grow and thrive under the notice-and-takedown system. Authors Alliance supports copyright policies that lead to widespread dissemination of knowledge, from a diversity of viewpoints and using a diversity of platforms. Policies that privilege the most well-resourced OSPs work against these values.
The summary of the draft bill states that it makes reforms which would make it easier for content creators to see their content restored after being improperly removed in response to a “staydown” notice. While Authors Alliance supports making it easier for creators who have had their content removed to see their content restored sooner than under the current system, it is unclear how the language in the draft bill would enable content to be restored sooner than under the current system. Instead, statutory reform should incorporate changes that would allow for the immediate put back of targeted content in response to a valid counter-notice. We suggest that one of the most impactful ways that Congress could reduce the burden on authors who have their content improperly removed would be to amend section 512 to incentivize accurate notice sending and to make it more feasible for authors to recover for harms caused by inaccurate notices.
Limitation on Remedies in Cases Involving Orphan Works
Authors Alliance supports reforms that limit liability for good faith users who are unable to identify or locate the copyright owner of a work after a diligent search and decide to use the work in question. Our members care about the dissemination of knowledge and, more specifically, seeing their own works disseminated broadly, and the threat of liability for the use of orphans is contrary to these priorities. That said, we are concerned with language in the draft bill that would that users file a “notice of use” with the Copyright Office in order to take advantage of the limitation on liability. This procedural hurdle makes the limitation less accessible for individual authors and creators, who are less likely to be familiar with Copyright Office procedure than sophisticated commercial entities.
Copyright Office Relocation
Authors Alliance opposes language in the draft bill which would reclassify the Copyright Office—a division of the Library of Congress and part of the legislative branch of the federal government for over 150 years—as an executive agency with a politically appointed register housed within the Department of Commerce. This is contrary to our members’ interests for three distinct reasons. First, the relocation would politicize the Copyright Office, intended to be impartial and removed from partisanship. Second, the relocation would shift the focus of copyright policy towards commercial interests and away from creativity and individual authorship. Finally, relocation would disrupt the mutually beneficial relationship between the Library of Congress and the Copyright Office, which furthers our members’ interests in preservation of knowledge and broad dissemination of creative works.
Modernizing Circumvention Exemptions
First and foremost, the revisions and new provisions in the draft bill are only a partial remedy to the fundamental problem that section 1201 stifles speech, access, and onward creation—even where those activities are clearly non-infringing—and in doing so creates heavy burdens for authors. To update section 1201 in a way that would truly benefit authors, Congress should make clear in reforming legislation that there must be a nexus between the relevant circumvention and infringement for there to be a violation of section 1201 and a claim for copyright infringement. Failing this change, we offer support for several proposals that would streamline the triennial rulemaking process, provide suggestions for improving proposals intended to ensure that the intended beneficiaries of exemptions are actually able to utilize exemptions, and propose ways to improve the proposed permanent exemption for assistive technologies.
Authority to Reduce Fees for Individual Authors and Small Businesses
We support the language in the draft bill which would make it clear that the Copyright Office has the authority to implement tiered fees for individual authors and small businesses. The current fees for registration and recording documents with the Copyright Office can be a barrier for individual authors or other copyright owners whose works have low or unproven commercial value but are nonetheless culturally or historically valuable. Because of the benefits associated with registration and recordation and the deterrent effect when fees are too high, Authors Alliance believes that it is important that the Copyright Office have the flexibility to adopt a fee schedule that accommodates all authors, particularly individual authors.
We look forward to working with Senator Tillis and other members of Congress and they consider reforms to the Copyright Act. Senator Tillis has indicated that he will release a second discussion draft of the DCA in April, and we will keep our members and readers updated as the process unfolds.
At Authors Alliance, we speak out in favor of policies that make knowledge more discoverable and accessible for authors and the public. While our work is often within the realm of copyright, there are other, less obvious ways that the law helps make knowledge discoverable. In the United States, the custom of preserving presidential papers in so-called presidential libraries has led to the archiving of millions of valuable documents. Presidential libraries are veritable treasure troves, containing archives of presidents’ correspondence, documents, gifts, and more, and are by custom located in former presidents’ home states. Presidential papers can be excellent sources of research for authors, and, as we round the corner on Presidents’ Day, recent moves to make presidential papers more accessible to the public are worth celebrating.
History of Presidential Libraries
For the first 150 years of U.S. history, presidential papers and effects were considered to be the private property of the president, and remained so after he had left office. But in 1938, Franklin Delano Roosevelt proposed the concept of the presidential library after deciding he wanted to give his presidential papers to the public to create an archive of his time in office and beyond. The result was a privately constructed, publicly maintained institution where the public could freely or cheaply access records from FDR’s presidency and his time in the public eye before taking office. A similar path was followed to establish Herbert Hoover’s presidential library. To codify this practice, Congress established the presidential library arrangement through legislation in 1955. The first Presidential Libraries Act gave the Administrator of the General Services Administration the authority to accept presidential documents for preservation as well as receiving land, buildings, and equipment necessary to maintain and run the library. These arrangements allowed for the libraries to be substantially privately funded yet run by the government.
A variety of subsequent laws strengthened the Presidential Library system. Beginning with the Reagan administration, two important laws related to government transparency—the Freedom of Information Act and the Presidential Records Act—worked together to make presidential papers the property of the public and make the records available to anyone who requested access after the president has left office (with certain limited exceptions for national security and similar issues). Presidential papers are presumptively open to the public after the administration has left office, and bound hardcover volumes of unclassified presidential papers are even available for purchase from the government.
Today, the nation’s presidential libraries are operated by the National Archives and Records Administration’s Office of Presidential Libraries, in partnership with a variety of public and private institutions like universities and foundations. While the Presidential Records Act requires only that textual records from presidential administrations be made public, by custom presidents often donate works of art, gifts, and other artifacts to presidential libraries, as well as correspondence from their lives before taking office. For this reason, many presidential libraries contain or double as museums of that president’s life.
Early Presidential Papers
Efforts to preserve presidential papers from administrations pre-dating the Presidential Libraries Act have also bore fruit. For U.S. presidents from George Washington to Calvin Coolidge, innumerable presidential papers have been donated or sold to the Library of Congress, which is then responsible for their preservation. Separately, presidential museums and libraries for former presidents before Hoover exist across the country, though these are not organized pursuant to the Presidential Libraries Act or run by the federal government.
Because no law required these early presidential papers to be given to the government, some collections are housed in universities or museums, typically in those presidents’ home states: the historical papers of John Adams and John Quincy Adams are housed in the Massachusetts Historical Society, the historical papers of Millard Fillmore are held by the State University of New York at Oswego, the historical papers of James Buchanan are held by Penn State University, the historical papers of Rutherford B. Hayes are held by the Rutherford B. Hayes Presidential Library and Museum, and the historical papers of Warren G. Harding are held by the Ohio History Connection. The lack of a uniform procedure for presidential papers has unfortunately made some of these early documents less accessible or unavailable altogether—the majority of Zachary Taylor’s presidential papers were lost when his son’s home was destroyed during the Civil War, and Chester A. Arthur burned an unknown quantity of personal documents from his presidency the day before his death. The Presidential Records Act effectively prevents this loss of knowledge and culture from happening again by guaranteeing that presidential textual records are preserved and available to the public in the future.
Digitization and New Challenges
A next step in making presidential papers more accessible is digitizing the collections. It is not always feasible for researchers and authors to travel to presidential libraries to examine the papers in person, and the closure of most if not all of the presidential libraries due to the COVID-19 pandemic has only underscored the need for greater access to historical records. The Library of Congress finished a decades-long initiative to digitize the collections of the papers of early presidents held by the Library of Congress just last year, and the full collection is freely available online. With respect to the post-Coolidge government-sanctioned presidential libraries and the early presidents whose papers are housed elsewhere, efforts to digitize the collections have been mixed. But in recognition of the importance of making presidential papers freely available online, last year, the National Archives launched a presidential library “explorer” allowing the public to view and search through the digitized portions of the presidential library collections (though as of February 2021, only about 0.25% of the collection has been digitized).
While digitization efforts for presidential papers have been uneven, navigating the presidential library explorer and browsing through the collections of the Library of Congress reveal fascinating historical information for authors and curious Internet users alike. Browsing through the collections is not always straightforward, with records being disorganized even in digitized form and containing many dry and often poorly scanned letters and speeches. But when one digs a bit deeper, it is not hard to uncover records which reveal an intimate behind-the-scenes glimpse of these presidents’ times in office: a love letter from Woodrow Wilson to his wife, Ladybird Johnson’s favorite recipes to serve on the Johnsons’ Texas ranch, a letter from Disney to Richard Nixon asking him to appear on the the Mickey Mouse Club television show, and a photograph of Bill Clinton jogging in D.C. during the early days of his presidency, to name just a few.
Changes to the Presidential Library System
President Obama’s “presidential center” will be the first contemporary presidential library not established under the Presidential Libraries Act. The Obama Presidential Center, set to open in Chicago with construction to begin this year, will be entirely private, run by the Barack Obama Foundation, and will not house textual records from the Obama presidency at all. Instead, the Foundation, in partnership with the National Archives, will work to digitize the collection of textual presidential records that are the property of the public under the Presidential Records Act. The Obama Presidential Center will display “works of fine art, cultural artifacts, books, clothing, domestic furnishings, sporting equipment, and other materials that represent the era and accomplishments of the Obama Administration,” such as gifts from heads of state, rather than donating these to the public to be maintained by the National Archives, as presidents from Herbert Hoover to George W. Bush have done. The plan has been controversial, but financial changes to the arrangement between the National Archives and the private foundations that pay to build these libraries have made operating presidential libraries less financially viable for the private institutions. Regardless, the Obama presidential papers remain the property of the public, and his presidential center has framed the end product of digitization as “the first fully digital presidential library.”
It is unknown whether President Trump will have a traditional presidential library, or even a private presidential center as Obama plans to build. The National Archives launched a placeholder website for President Trump’s presidential library or center, but has noted only that it will maintain his collected presidential papers (as required by the Presidential Records Act). And a recently-launched sophisticated parody website for the Trump presidential library, designed by a New York based architect who purchased the domain name the very week President Trump was elected, has garnered attention in the meantime.
Presidential Records and Authorship
The presidential papers are intended to be a source of information for historical researchers, and are invaluable source material for a variety of books, films, and other research projects. In proposing the first modern presidential library (prior to the passage of the Presidential Records Act), FDR said that he sought to take the advice of historians which advised him not to break up his collection of papers, but dedicate it in whole to the public, “because, so often in the past, Presidential papers and other public papers have been culled over during the lifetime of the owner, and the owner has thrown out a great deal of material which he personally did not consider of any importance which, however, from the point of view of future history, may have been of the utmost importance.” Presidential libraries “preserve the raw materials that constitute our nation’s history,” creating invaluable information for authors desiring a unique perspective American history, including matters of diplomacy and conflict.
Historian Robert Caro described his experience conducting research in the “forty thousand boxes” of documents in the Lyndon B. Johnson archives as interminable but incredibly illuminating. Caro was able to trace LBJ’s ascension from a junior member of the House of Representatives to a massive fundraiser and later a successful presidential candidate by paging through numerous memos, letters, and speeches, producing an acclaimed and groundbreaking biography of the former president.
Today, with the digitization of presidential archives, the possibilities for scholarship are tremendous. Authors desiring an intimate and unique portrait of former presidents who are willing to browse through stacks—both physical and virtual—would be wise to peruse presidential libraries and archives, which, as the Caro example above shows, can yield new insights decades or centuries later.
In December 2020, Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, filed a comment with the Copyright Office in support of a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining research on literary works that are published electronically and motion pictures. This week, commenters who oppose the petition for this exemption were given an opportunity to respond to our proposed exemption.
Text and data mining (TDM) refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use.
But TDM researchers are currently hindered by Section 1201 of the DMCA, which prohibits the circumvention of TPMs used by copyright owners to control access to their works. Section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize. What’s more, Section 1201’s prohibitions force some TDM scholars to focus on works first published before 1925, which are in the public domain. Because authorship was far less diverse in 1925 than it is today, focusing TDM on pre-1925 texts privileges white male voices rather than being representative of authors contributing to the commons of knowledge today. For these reasons, our petition and supporting comments ask the Librarian of Congress to grant a new exemption to Section 1201’s anti-circumvention prohibitions that would allow researchers to bypass TPMs on e-books and films for the purpose of conducting TDM research.
Our response comment is due on March 10, 2021, and we look forward to working with the commenters to address their concerns and with the Copyright Office as it evaluates our petition for this new exemption to facilitate TDM research. TDM researchers who have information they would like to share with us to support our response are invited to contact us today.
The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.
Authors Alliance is pleased to announce our partnership with Library Futures, a brand new organization which seeks to “empower libraries to fulfill their mission and provide non-discriminatory, open access to culture for the public good.” Last week, Library Futures officially launched with the stated goal of addressing the “deleterious impacts of an inequitable knowledge ecosystem.” The organization will engage in advocacy work, grant making, educational campaigns, and community building to effectuate its mission and work towards a technology-positive future for libraries.
We are excited to be a partner organization of Library Futures as it fights for equitable access to knowledge—an important issue for our members and authors writ large. Authors have an interest in a technology-forward future for libraries that ensures that readers, learners, and the general public can continue to discover and access their books in the digital age. We believe that the initiatives of Library Futures will help authors reach the audiences for which they write, advancing our own mission of supporting writers who write to be read.
Jennie Rose Halperin, the organization’s executive director, has said she is “honored to be leading this organization, which will take on major issues in libraries and help usher in a more inclusive digital future for teachers, learners, and researchers from every walk of life.” Library Futures board member Kyle Courtney has said he is hopeful that the organization can make real change on the issues of access and equity that are challenging libraries today: “Digital library books—when loaned correctly—can be a pivotal tool libraries use to preserve great works, provide patrons with access to books, and defend patron privacy. I hope the community will join us in standing up for the future of libraries.”
The Library Futures coalition, of which Authors Alliance is delighted to be a part, is a public interest alliance that “seeks to enable collective action while building power through an innovative advocacy organization.” Other coalition partners include the Internet Archive, Public Knowledge, Creative Commons, SPARC, and the Boston Public Library. We are excited to collaborate with Library Futures and our coalition partners to work towards a better, more equitable future for our libraries!
