Category Archives: News

US Copyright Office Defends Artists’ Rights to Terminate their Copyright Transfers

Posted November 11, 2022

UPDATE: You can find Authors Alliance’s comment on the Copyright Office’s proposed rulemaking here.

“Termination of Transfer,” is a legal tool that allows authors to recapture rights previously handed over to another party, even if their contract contains language to the contrary. It’s a really great idea. The policy rationale is that we need a way to recognize “the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited.” Thus, Congress in Sections 203 (for pre-1978 works) and 304 (for post-1978 works) implemented rules that allow authors to regain their rights by terminating transfers of them after a minimum of 35 years.

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 books over 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

A good recent example of this kind of complexity is buried in a recent regulatory filing from the U.S. Copyright Office titled “Termination Rights and the Music Modernization Act’s Blanket License.”

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.

Github Copilot Class Action Lawsuit (and why authors and researchers should pay attention)

Posted November 4, 2022

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.

Judge Blocks Penguin Random House/Simon & Schuster Merger

Posted November 2, 2022

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 past year. 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 for Public-Minded Authors Part I

Posted October 25, 2022

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.

Community Call : Writing About Real People Legal Guide

Writing about real people can raise a number of complicated legal issues for authors. Legal issues such as defamation and rights of publicity have a number of fact-specific rules, exceptions, and exceptions to exceptions that can be difficult to navigate without help. We’ve found that these issues can be an obstacle to creation for all types of authors, from bloggers to narrative nonfiction authors to historians, cultural anthropologists, and other scholarly authors.

As part of our highly used series of guides on legal issues for authors, Authors Alliance has set out to create a guide to writing about real people for nonfiction authors. We’ve got a good start and edited draft already, but would like your input as we refine the guide – what should we be highlighting? What’s trickiest, most salient, and for which types of nonfiction authors?

We invite Authors Alliance members, A2P2 partners, and others who are interested to join us for a community call on Monday, November 14, 2022, from 1-2pm Eastern/10-11am Pacific. The meeting will be held on Zoom, and you can register here.

We plan to share our plans for the guide, including scope and coverage, ideas for additional content (e.g., teaching resources), and publication plans. We’d like to hear from you:

What important issues have we not included in our plans for the guide that we should?
Which issues in the guide seem most salient or important for nonfiction authors?
What helpful examples do you have that we might include to help authors?
How can we format, structure, and disseminate the guide best to support authors who need this information?

Authors speak out: an update on the Wiley ebook situation

Last week we wrote about publisher John Wiley & Sons abruptly removing some 1,300 ebooks from library collections, and then (in the face of significant public outcry from librarians, authors, and instructors) temporarily restoring access for the academic year.

Authors Alliance has heard from a number of authors expressing their strong disapproval of Wiley’s actions. To help them express their concerns, we co-wrote a letter with #ebookSOS that authors of the Wiley books can sign on to, calling on Wiley to change their practices. The text of the letter can be read here. We’re still working on reaching out to all of the individual authors of these books (if you are inclined to help find contact info, you can contribute it here), but already we’re hearing back from authors with comments of their own. For example, authors wrote us to express their frustration over lack of respect for their interests in seeing their books put into the hands of readers:

“I find the removal of eBooks arbitrary and infringing on the rights of the authors and the prospective readers/users of these book.”

“I strongly agree with your approach concerning the e-books. Wiley is evidently the only beneficiary of this system, which works against the authors and readers.”

“I would like my book to be available to as many students as possible.”

Unsurprisingly, the question of royalties paid out to the authors of top-selling titles is a frequent topic of discontent, highlighting the mismatch between the high prices that Wiley charges for access and the funds that actually make their way to authors. For example, authors wrote us to say:

“Recently I wrote Wiley if I can get a yearly list of royalty payments corresponding to hard cover, e-book and, if appropriate, solution manual. Because for a book in the forefront of the technology, I received only $8 as the last royalty payment. The result was no answer. All these make me question if they calculate the royalty payments honestly. I was not intending to get rich when I decided to write this book, but the return of time and effort I put for writing such a book is not fair. I wonder whether the return for Wiley is also that low.”

“Wiley created a lot of problems in royalty payments. I had to write a letter of complaint to the CEO of Wiley in order to get my first royalty payment after approximately three years after the publication of the book. The payment department was uncooperative.”

As we note above, in response to mounting pressure, Wiley did recently announced it will reinstate the withdrawn books, but only until June 2023. After hearing from the authors we’ve reached out to, Authors Alliance and #ebookSOS agree that the problem is in no way solved and are continuing their efforts to raise awareness with authors.

For more information please contact us at ebooksoscampaign@gmail.com or at info@authorsalliance.org.

Note: this initiative is part of a wider joint project, to educate and empower authors, who rarely know how their work is managed post-publication, to hold publishers to account. If you want to help on this project please get in touch.

Authors Alliance Signs on to Amicus Brief in Hunley v. Instagram

Posted October 12, 2022

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.

The photographers have appealed to the Ninth Circuit Court of Appeals to challenge the validity of the server test for embedded content. It is worth noting that district courts in other circuits have disapproved of the Ninth Circuit’s Perfect 10 server test and found that embedding can constitute secondary infringement in some cases, and it is not applied in all jurisdictions. For this reason, some have speculated that the Ninth Circuit’s server test is ripe for revisiting.

The Brief

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.

Hunley-amicus-EFF-CCIA-ALA-et-al

Wiley Removes Over 1,300 Ebooks from Academic Library Collections

Posted October 7, 2022

“chair and empty bookshelf” by Mark Z. is licensed under CC BY-NC 2.0.

Last month, publisher John Wiley & Sons made headlines 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.

Unsurprisingly, the decision was widely condemned by librarians, civil society organizations, and university libraries. #ebookSOS, which has been working to highlight these kinds of challenges for several years, organized several efforts in protest.

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.

Biden’s Open Access to Research Policy and How it Affects Authors

Several weeks ago, the White House Office of Science and Technology Policy (OSTP) issued a memo titled Ensuring Free, Immediate, and Equitable Access to Federally Funded Research. The memo, which builds upon earlier policies including this 2013 Obama administration open access memo and this 2008 National Institutes of Health policy, directs all federal agencies with research and development spending to take steps to ensure that federally sponsored research in the form of scholarship and research data will be available free of charge from the day of publication.

The initial release of the Biden OSTP memo generated a rush of news speculating about its impact on scholarly publishing—how major publishers would react, how academic institutions would respond (and specifically whether it would result in a shift towards more “Gold Open Access” publishing in which authors pay publishers an article processing charge to publishing their article openly), and how many articles this change would affect. SPARC, a nonprofit dedicated to supporting open research, has a great summary of the policy and related news.

We recently caught up with Peter Suber, Senior Advisor on Open Access at Harvard University Library, to talk about the implications of the OSTP policy for authors. Peter is a founding member of Authors Alliance who has been deeply involved in advocating for open access for several decades.

Q: Give us a brief overview of the new OSTP policy – what is this and why is it important?

The key background is that back in 2013, the Obama White House OSTP issued a memo asking the 20 largest federal funding agencies to adopt OA policies. The memo applied to agencies spending over $100 million per year on extramural research funding. The new memo from the Biden White House extends and strengthens the Obama memo in three important ways:

It covers all federal funders, not just the largest ones. I’ve seen estimates that the new memo covers more than 400 agencies, but the OSTP has not yet released a precise number. Among other agencies, the new memo covers the National Endowment for the Humanities. So for the first time federal OA policies will cover the humanities and not just the sciences.
The Obama memo permitted embargoes of up to 12 months, and publishers routinely demanded maximum embargoes. The Biden memo eliminates embargoes and requires federally funded research to be open on the date of publication. Like the Gates Foundation —which I believe was the first funder to require unembargoed OA to the research it funded—the White House announced its no-embargo policy several years before it will take effect, giving publishers plenty of time to adapt.
The Obama memo covers data, not just articles. This is an important step to cover more research outputs and more of the practices that make up open science and open scholarship.

How will publishers react to this new policy? Of course they have the right to refuse to publish federally funded research. When the NIH policy was new in 2008, we didn’t know whether any publishers would refuse. Because many publishers lobbied bitterly against it and we thought some might do just that. But it turns out that none refused. It’s hard to prove a negative, but the Open Access Directory keeps a crowd-sourced list of publisher policies on NIH-funded authors, and has so far turned up no publishers who refuse to publish NIH-funded authors just because they are covered by a mandatory OA policy.

Of course one reason is that the NIH is so large. It’s by far the world’s largest funder of non-classified research. Any publishers who refuse to publish NIH-funded authors would abandon a huge vein of high-quality research to their rivals. But when federal OA policy covers smaller agencies as well, some publishers might well refuse to publish, say, NEH-funded research, because they don’t receive many submissions from NEH-funded authors. This is something to watch.

Q: The Biden memo does not address ownership of rights or licensing for either scholarship or data. How do you think agencies will address rights issues in their implementation?

Good point. Neither the Obama nor the Bidem memo explicitly requires open licenses. But both require that agency policies permit “reuse”, which will require open licenses in practice. Unfortunately the Obama White House approved agency policies that did not live up to this requirement. We can hope the Biden White House will do better on that point. Of course Plan S requires a CC-BY license and the Biden memo conspicuously stops short of that. As a result, we can expect lots of lobbying, either at the agency level or the OSTP level — for and against explicit open licensing requirements, and for and against specific licenses like CC-BY.

Q: Some people have written about how open access policies and Plan S Rights Retention Strategy in particular undermine authors rights. E.g., this post on Scholarly Kitchen. Our point of view is that those policies address a negotiating imbalance that has traditionally favored publishers, and allows academic authors –who on the whole prefer broad reach and access to their work– to switch the “default” to open for their articles even when their publishers wish otherwise. Do you have a response to that argument that OA policies for funded research undermine authors rights?

I’ve never seen a good argument that rights retention policies harm authors or limit their rights. On the contrary, these policies help authors and enlarge their rights. I’ve made this case in response to criticisms of the rights-retention OA policies at Harvard, and I’ve enumerated the benefits of rights-retention policies for authors. (For background on the Harvard rights-retention policies, I can recommend a handout I wrote for a talk last year.)

One criticism is that rights-retention OA policies will reduce author choice by causing some publishers to refuse to publish covered authors. But in practice there is no evidence that this actually happens. I’m not aware of a single instance of this happening In the 14 years that Harvard has had its rights-retention policies. The same goes for the more than 80 Harvard-style policies now in effect in North America, Europe, Africa, Asia, and Australasia.

In fairness, Harvard-style policies give authors the right to waive the open license. By default the university has non-exclusive rights, but authors can waive that license if they wish, and publishers can demand that authors get the waiver. But that too is rare. In our case, very few publishers – just two or three – systematically make that demand, and I haven’t heard that it’s common anywhere else. Our waiver rate is below 5%. Even with waiver options, these policies definitely shift the default to open.

Under the Plan S rights retention strategy, authors add a paragraph to their submission letter saying that any accepted manuscript arising from the submission is already under a CC-BY license. Publishers have the right to desk-reject those articles upon submission. But we don’t know whether any will actually do so. Plan S has a tool to track journal compliance with the Plan S terms, and it will alert authors to steer clear of those publishers.

Q: There has been speculation that the Biden memo will accelerate the rate at which publishers adopt a “article processing charge” Gold OA model that will require all authors (or their funders or universities) to pay for their articles to be published. What do you think?

First we should note that the White House guidelines are 100% repository-based or “green”. They require deposit in OA repositories, not publication in OA journals. As far as I can tell, publishing in an OA journal would not even count toward compliance, since those authors would still have to deposit their texts and data in suitable repositories.

Publishers could say to federally-funded authors, “You can publish with us only if you pay an APC [article processing charge] for our gold option.” Authors could take them up on that or they could withdraw their submissions and look elsewhere. The new OSTP memo lets authors use some of their grant funds to pay “reasonable publication costs”. Some authors may be fooled and think that paying the fee is the only way to comply with the funder policy. But that would be untrue. As more and more authors realize that they can comply with the funder policy by depositing in a repository, at no charge, I predict that they will divide. Some will take the costless path to compliance and refuse to pay what I’ve called a prestige tax just to publish in a certain journal. Others will pay the prestige tax for a journal’s brand and reputation, if only because journal prestige still carries a lot of weight with academic authors. This obstacle to frictionless sharing is a cultural obstacle that new policies cannot directly dismantle. But we should remember that when publishers demand a publication fee and authors pay it, the authors are paying for the journal brand. They are not paying to comply with the funder policy, which they could do at no charge.

The Biden memo is equivocal about this possibility. On the one hand, it lets federal grantees use grant money to pay reasonable publication costs. On the other hand, it requires that agency policies “ensure equitable delivery” of federally funded research. The memo uses “equity” language in similar contexts half a dozen times. On one natural interpretation, this language rules out APC barriers to compliance, because APCs exclude some authors on economic grounds. This is another front on which there will be lots of lobbying as the agencies put their policies into writing. In fact, the lobbying has already begun.

Some publishers will undoubtedly demand fees or try to demand fees to publish federally-funded authors. But we already know that some will not. Science, for example, has already said that it will publish federally-funded authors without requiring them to buy its “gold” OA option. AAAS said that “it is already our policy that authors who publish with one of our journals can make the accepted version of their manuscript publicly available in institutional repositories immediately upon publication, without delay.” In a related editorial, Science explained that its authors may already deposit in the OA repositories of their choice “without delay or incurring additional fees.” It opposes a full shift toward “author pays” gold OA because it discriminates against many kinds of researchers, such as early-career researchers, researchers from smaller schools, and those in underfunded disciplines. It agrees that the APC model “can be inequitable for many scientists and institutions.” Some journals will follow Science, because it’s Science. Some will do so to avoid the equity barrier. And some will do so to signal that they will only evaluate submissions on their merits.

Q: As agencies go about developing their own plans for implementing this policy, will authors or others have an opportunity to give input, or will this be a closed-door process?

We don’t know yet. The White House didn’t solicit public comments for the 2022 memo, which angers some publishers. The Obama white house memo did solicit public comments, twice, and both times the comments overwhelmingly favored the policy.

It seems that agencies could still call for public comments before they finalize their policies. The actual development of the policies will be coordinated by three agencies: the OSTP, the Office of Management and Budget, and the National Science and Technology Council Subcommittee on Open Science. We don’t know what guidelines, if any, they will lay down for that coordination.

The background on coordination goes back to the Obama White House. When it told the large agencies that they must adopt OA policies, it allowed the policies to differ but asked agencies to work together to ensure that the policies aligned. In the end, I believe the policies differed too much. Universities really feel this because they have to comply with all of the policies, since they receive grants from each agency. Like the Obama memo, the Biden memo allows the policies to differ and calls for coordination. We can hope for less divergence than in the past.

Authors for Libraries

Posted September 29, 2022

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.

We’ve written quite a bit recently about the challenges libraries face today – from the lawsuit filed against the Internet Archive over controlled digital lending, to efforts to restrict libraries from preserving and lending ebooks. Just this week we saw one publisher, John Wiley & Sons, unilaterally yank 1,379 educational titles from library ebook collections (as far as we can tell, with no author input), refusing to sell electronic copies to libraries and forcing teachers and students to scramble for access just as the academic term begins.

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 libraries across the country practice CDL: it is far from a practice unique to the Internet Archive.