At last, the epically funny internet sensation It's Decorative Gourd Season, Motherfuckers is now a visual tour-de-force, teeming with a cornucopia of perfectly paired photos and seasonal enchantments to make it really fucking sing.
The Geocities-esque internet of Hypnospace Outlaw is silly fun until you see the tragedy beneath the surface, so it’s fitting that the game produced one of the all-time-great Christmas heartbreak songs. Last year its washed-up rocker, The Chowder Man, gave us the present of Christmas Pain In Christmas Town – a straight banger with a delightful music video. I wept, and vowed to listen every Christmastime. I guess I’m not asking you if it’s too early in the Christmas season to cry to this song as much as I’m telling you I already have.
In 2013, No Man’s Sky released a trailer that showed some big beefy sandworms. But, when the game released in 2016, there was not a sandworm in sight. Hello Games decided the glory of the sandworms was too much for us mere mortals. But today, it all changes. The sandworms cometh in No Man’s Sky’s massive 3.0 Origins update, which also adds billions of planets, loads of flora and fauna, weather systems and so, so much more.
A few weeks ago, we wrote about the misguided freakout by (mainly) publishers and some authors over the Internet Archive's decision to launch the National Emergency Library during the COVID-19 pandemic, to help all of us who are stuck at home be able to digitally access books that remain in locked libraries around the country. A key point I made in that post: most (not all, but most) of the criticisms applied to the NEL project could equally apply to regular libraries. And perhaps that's why hundreds of libraries have come out in support of the project, even as those attacking the project insist that it's not an attack on libraries.
Either way, it was only a matter of time before publishers got their lapdogs in Congress to start making noise, and first out of the gate was Senator Thom Tillis, who is already deep into his attempt to make copyright law worse, and who last week sent a letter to the Internet Archive's Brewster Kahle that reads very much like it was written by book publishers. First it gets high and mighty about how the pandemic has "shown the critical value of copyrighted works to the public interest" which is just a weird way to phrase things. The fact that something valuable is covered by copyright does not automatically mean that copyright is helpful or valuable for that situation. Then it gets to the point:
I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.
A few days later, Kahle responded in a detailed and thorough letter to Tillis. It points out that the Internet Archive is well-established and recognized by the state of California as a library, and that it has already shown that it has a legal right to digitize books. And then goes on to explain that the point of the NEL is to help enable Tillis' own constituents to access to the books that their tax dollars paid for while they're locked up collecting dust inside libraries that are closed during the pandemic.
The National Emergency Library was developed to address a temporary and significant need in
our communities — for the first time in our nation’s history, the entire physical library system is
offline and unavailable. Your constituents have paid for millions of books they currently cannot
access. According to National Public Library survey data from 2018-2019, North Carolina’s
public libraries house more than fifteen million print book volumes in three-hundred twenty-three
branches across the State. Because those branches are now closed and their books are
unavailable, the massive public investment paid for by tax-paying citizens is unavailable to the
very people who funded it. This also goes for public school libraries and academic libraries at
community colleges, public colleges and universities as well. The National Emergency Library
was envisioned to meet this challenge of providing digital access to print materials, helping
teachers, students and communities gain access to books while their schools and libraries are
It also highlights something else that many had missed: the NEL does not include any books published within the last five years -- which is pretty important, since the commercial value of a book usually exists in the first couple years after publishing. Indeed, a recent study highlighted how the vast, vast, vast majority of sales tends to come soon after a book is published and then sales decline rapidly. So the argument that the NEL is somehow taking away from author income is already somewhat questionable.
And, indeed, the Archive is currently seeing evidence that suggests the NEL is not actually impacting author earnings in any significant way:
In an early analysis of the use we are seeing what we expected: 90% of the books borrowed
were published more than ten years ago, two-thirds were published during the twentieth
century. The number of books being checked out and read is comparable to that of a town of
about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30
minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out
book for fact checking or research, but we suspect a large number of people are browsing the
book in a way similar to browsing library shelves.
Kahle also explains to Tillis how he's wrong to say that copyright law does not allow this kind of lending. It's called fair use.
You raise the question of how this comports with copyright law. Fortunately, we do not need an
“emergency copyright act” because the fair use doctrine, codified in the Copyright Act, provides
flexibility to libraries and others to adjust to changing circumstances. As a result, libraries can
and are meeting the needs of their patrons during this crisis in a variety of ways. The Authors
Guild, the leading critic of the National Emergency Library, has been incorrect in their
assessment of the scope and flexibility of the fair use doctrine in the past and this is another
instance where we respectfully disagree.
The reference regarding the Authors Guild being wrong about fair use refers to its years-long fight to stop libraries from digitizing books, which resulted in a massive loss for the Guild's ridiculous interpretation of copyright and fair use.
In the end there are a bunch of important points here: even if Tillis is right that copyright is somehow proving its value in a pandemic (and he's not), that doesn't change the simple fact that this library is enabling people who cannot check out physical books from their locked community libraries to at least be able to access those books while remaining safe at home. The Internet Archive has legal scans of these books, and hundreds of libraries are supporting this effort. While it's true, as some authors and publishers highlight, that there are official ebooks for some books, many (especially older) books do not have them at all -- and those include lots of books that are commonly read in classrooms. And, as we pointed out last time, in cases where there are official ebooks, almost anyone would prefer to get those copies, because they are much easier to read and designed to be read on a reading device (specialized reading device, tablet, or phone) as compared to the NEL scans, which are straight scans of the book pages.
No matter what, it's a really bad look for Tillis to stomp around complaining that his constituents might actually be able to read books that are currently locked up in libraries. Remember that the entire intent of copyright law in the first place, and the subtitle of the US's very first copyright law, was that it be to enable learning. The Internet Archive is trying to help push forward that clear goal of copyright law... while Senator Tillis seems to want to stop it.
In the end, there's very little "there" there to the complaints about this project. It's difficult to see how it's harming author revenue in any real way, but it is clearly helping schools and students while the libraries and books they normally use are unavailable. And, there are strong arguments for why this is perfectly legal under copyright law -- and if the claim is that we should wait until that's absolutely proven in court, well, that kinda misses the whole point of helping out during a pandemic.
As professor Brian Frye recently wrote about all of this: "When you find yourself complaining about libraries, you might want to think twice about your priorities." And I'd say that counts double in the midst of a pandemic.
Last Tuesday we launched a National Emergency Library—1.4M digitized books available to users without a waitlist—in response to the rolling wave of school and library closures that remain in place to date. We’ve received dozens of messages of thanks from teachers and school librarians, who can now help their students access books while their schools, school libraries, and public libraries are closed.
We’ve been asked why we suspended waitlists. On March 17, the American Library Association Executive Board took the extraordinary step to recommend that the nation’s libraries close in response to the COVID-19 outbreak. In doing so, for the first time in history, the entirety of the nation’s print collection housed in libraries is now unavailable, locked away indefinitely behind closed doors.
This is a tremendous and historic outage. According to IMLS FY17 Public Libraries survey (the last fiscal year for which data is publicly available), in FY17 there were more than 716 million physical books in US public libraries. Using the same data, which shows a 2-3% decline in collection holdings per year, we can estimate that public libraries have approximately 650 million books on their shelves in 2020. Right now, today, there are 650 million books that tax-paying citizens have paid to access that are sitting on shelves in closed libraries, inaccessible to them. And that’s just in public libraries.
And so, to meet this unprecedented need at a scale never before seen, we suspended waitlists on our lending collection. As we anticipated, critics including the Authors Guild and the Association of American Publishers have released statements (here and here) condemning the National Emergency Library and the Internet Archive. Both statements contain falsehoods that are being spread widely online. To counter the misinformation, we are addressing the most egregious points here and have also updated our FAQs.
One of the statements suggests you’ve acquired your books illegally. Is that true? No. The books in the National Emergency Library have been acquired through purchase or donation, just like a traditional library. The Internet Archive preserves and digitizes the books it owns and makes those scans available for users to borrow online, normally one at a time. That borrowing threshold has been suspended through June 30, 2020, or the end of the US national emergency.
Is the Internet Archive a library? Yes. The Internet Archive is a 501(c)(3) non-profit public charity and is recognized as a library by the government.
What is the legal basis for Internet Archive’s digital lending during normal times? The concept and practice of controlled digital lending (CDL) has been around for about a decade. It is a lend-like-print system where the library loans out a digital version of a book it owns to one reader at a time, using the same technical protections that publishers use to prevent further redistribution. The legal doctrine underlying this system is fair use, as explained in the Position Statement on Controlled Digital Lending.
“Our principal legal argument for controlled digital lending is that fair use— an “equitable rule of reason”—permits libraries to do online what they have always done with physical collections under the first sale doctrine: lend books. The first sale doctrine, codified in Section 109 of the Copyright Act, provides that anyone who legally acquires a copyrighted work from the copyright holder receives the right to sell, display, or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. This is how libraries loan books. Additionally, fair use ultimately asks, “whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.” In this case we believe it would be. Controlled digital lending as we conceive it is premised on the idea that libraries can embrace their traditional lending role to the digital environment. The system we propose maintains the market balance long-recognized by the courts and Congress as between rightsholders and libraries, and makes it possible for libraries to fulfill their “vital function in society” by enabling the lending of books to benefit the general learning, research, and intellectual enrichment of readers by allowing them limited and controlled digital access to materials online.”
Some have argued that the ReDigi case that held that commercially reselling iTunes music files is not a fair use “precludes” CDL. This is not true, and othershaveargued that this case actually makes the fair use case for CDL stronger.
How is the National Emergency Library different from the Internet Archive’s normal digital lending? Because libraries around the country and globe are closed due to the COVID-19 pandemic, Internet Archive has suspended our waitlists temporarily. This means that multiple readers can access a digital book simultaneously, yet still by borrowing the book, meaning that it is returned after 2 weeks and cannot be redistributed.
Is the Internet Archive making these books available without restriction? No. Readers who borrow a book from the National Emergency Library get it for only two weeks, and their access is disabled unless they check it out again. Internet Archive also uses the same technical protections that publishers use on their ebook offerings in order to prevent additional copies from being made or redistributed.
What about those who say we’re stealing from authors & publishers? Libraries buy books or get them from donations and lend them out. This has been true and legal for centuries. The idea that this is stealing fundamentally misunderstands the role of libraries in the information ecosystem. As Professor Ariel Katz, in his paper Copyright, Exhaustion, and the Role of Libraries in the Ecosystem of Knowledgeexplains:
“Historically, libraries predate copyright, and the institutional role of libraries and institutions of higher learning in the “promotion of science” and the “encouragement of learning” was acknowledged before legislators decided to grant authors exclusive rights in their writings. The historical precedence of libraries and the legal recognition of their public function cannot determine every contemporary copyright question, but this historical fact is not devoid of legal consequence… As long as the copyright ecosystem has a public purpose, then some of the functions that libraries perform are not only fundamental but also indispensable for attaining this purpose. Therefore, the legal rules … that allow libraries to perform these functions remain, and will continue to be, as integral to the copyright system as the copyright itself.”
Do libraries have to ask authors or publishers to digitize their books? No. Digitizing books to make accessible copies available to the visually impaired is explicitly allowed under 17 USC 121 in the US and around the world under the Marrakesh Treaty. Further, US courts have held that it is fair use for libraries to digitize books for various additional purposes.
Have authors opted out? Yes, we’ve had authors opt out. We anticipated that would happen as well; in fact, we launched with clear instructions on how to opt out because we understand that authors and creators have been impacted by the same global pandemic that has shuttered libraries and left students without access to print books. Our takedowns are completed quickly and the submitter is notified via email.
Doesn’t my local library already provide access to all of these books? No. The Internet Archive has focused our collecting on books published between the 1920s and early 2000s, the vast majority of which don’t have a commercially available ebook. Our collection priorities have focused on the broad range of library books to support education and scholarship and have not focused on the latest best sellers that would be featured in a bookstore.
Further, there are approximately 650 million books in public libraries that are locked away and inaccessible during closures related to COVID-19. Many of these are print books that don’t have an ebook equivalent except for the version we’ve scanned. For those books, the only way for a patron to access them while their library is closed is through our scanned copy.
I’ve looked at the books and they’re just images of the pages. I get better ebooks from my public library. Yes, you do. The Internet Archive takes a picture of each page of its books, and then makes those page images available in an online book reader and encrypted PDFs. We also make encrypted EPUBs available, but they are based on uncorrected OCR, which has errors. The experience is inferior to what you’ve become accustomed to with Kindle devices. We are making an accessible facsimile of the printed book available to users, not a high quality EPUB like you would find with a modern ebook.
What will happen after June 30 or the end of the US national emergency? Waitlists will be suspended through June 30, 2020, or the end of the US national emergency, whichever is later. After that, the waitlists will be reimplemented thus limiting the number of borrowable copies to those physical books owned and not being lent.
One of the contamination vectors that I think many people may be overlooking is shopping and safely dealing with groceries after bringing them home. In this video, the best I've seen to date, a Michigan doctor, Jeffrey VanWingen, goes through, step-by-step, how to process your groceries when you get them home to give you your best chance of not bringing COVID-19 into your house.
I like his analogy using glitter. Imagine that your groceries are covered in glitter. You need to get your groceries into the house and processed so that you end up with no glitter on your groceries, your kitchen, or on you. Disinfectant dissolves glitter (in this analogy).