The Copyright Office is trying to redefine libraries, but libraries don’t want it - Who is it for?

[bananas]

https://blog.archive.org/2016/07/27/the-copyright-office-is-trying-to-redefine-libraries-but-libraries-dont-want-it-who-is-it-for/

The Copyright Office is trying to redefine libraries, but libraries don’t want it — Who is it for?
Posted on July 27, 2016 by Lila Bailey

The Library Copyright Alliance (which represents the American Library Association and the Association of Research Libraries) has said it does not want changes, the Society of American Archivists has said it does not want changes. The Internet Archive does not want changes, DPLA does not want changes… So why is the Copyright Office holding “hush hush” meetings to “answer their last questions” before going to Congress with a proposed rewrite of the section of Copyright law that pertains to libraries?

This recent move, which has its genesis in an outdated set of proposals from 2008, is just another in series of out of touch ideas coming from the Copyright Office. We’ve seen them propose “notice and staydown” filtering of the Internet and disastrous “extended collective licensing” for digitization projects. These and other proposals have lead some to start asking whose Copyright Office this is, anyway. Now the Copyright Office wants to completely overhaul Section 108 of the Copyright Act, the “library exceptions,” in ways that could break the Wayback Machine and repeal fair use for libraries.

We are extremely concerned that Congress could take the Copyright Office’s proposal seriously, and believe that libraries are actually calling for these changes. That’s why we flew to Washington, D.C. to deliver the message to the Copyright Office in person: now is not the time for changes to Section 108. Libraries and technology have been evolving quickly. Good things are beginning to happen as a result. Drafting a law now could make something that is working well more complicated, and could calcify processes that would otherwise continue to evolve to make digitization efforts and web archiving work even better for libraries and content owners alike.

In fact, just proposing this new legislation will likely have the effect of hitting the pause button on libraries. It will lead to uncertainty for the libraries that have already begun to modernize by digitizing their analog collections and learning how to collect and preserve born-digital materials. It could lead libraries who have been considering such projects to “wait and see.”

Perhaps that’s the point. Because the Copyright Office’s proposal doesn’t seem to help libraries, or the public they serve, at all.

[ms liberty]

1. Kick and rec. n/t

[Ford_Prefect]

2. It seems to be the personal project of the current Register of Copyrights Maria Pallante.

in 2013 Maria Pallante presented a paper on updating the copyright law to reflect 21st century needs, conditions, and technology. I suspect it was will the best intentions since she has quite a long history with the copyright office.

However there also seems to be a great deal of push back against the proposed changes by many Library professionals, authors and others with concerns about fair use, digital applications and the "dimming of the light" effect of some of the proposed restrictions and definitions included in the proposed revisions to the act.

Among other concerns expressed was that the Copyright Office is acting in a way that seems contrary to good practices and governance by holding closed door meetings on the content of the update when open meetings with concerned parties and participants should be the order of the day. This action has raised questions about who the Copyright Office deems to be appropriate parties to meet with and hear. Other concerns were that the proposed changes mandate an inappropriate degree of censorship and monitoring be applied regarding fair use of content. There are implications that the much decried PIPA and SOPA may have taken root in the proposals put forth in changes to regulatory practices and definitions.

I get the impression that the very least this update will do is expand the definition and application of copyright to a much broader range of use that may threaten and tend to silence fair use. It is possible more specific and contentious conditions may result as the devil is most certainly in the details of such a fundamental document.

The articles below go into further detail and support the comments cited in the OP commentary:

https://cyberlaw.stanford.edu/blog/2016/07/whose-copyright-office-0

http://blog.archive.org/2016/06/02/copyright-offices-proposed-notice-and-staydown-system-would-force-the-internet-archive-and-other-platforms-to-censor-the-web/

http://blog.archive.org/2015/10/08/our-comments-on-copyright-office-recommendations-for-mass-digitization-no-extended-collective-licenses-please-2/

http://www.districtdispatch.org/2012/01/ala-applauds-internet-blackout-in-opposition-to-pipa-sopa/

[Igel]

7. It's been bubbling for a while.

There was a report from 2008 that looked at revisions to this section of the law: http://www.section108.gov/docs/Sec108StudyGroupReport.pdf

For example, one problem is that "publish" means making copies available, but "copies" are physical objects. Makes a hash out of the copyright law. Fair use was one thing when you had to get a physical copy. But now I can subscribe to a journal for a year's access, take screen shots, and archive and share them--and as I back up routinely, make a copy each week for years to come.

Library and archive presuppose a certain kind of organization, and not all libraries and archives meet the current regulatory definitions. And some things aren't defined at all because the only reasonable definition when the reg or law was passed isn't necessarily the most common definition now.

Some of what's being proposed is restrictive and not what the "public" (defined as a few NGOs or library organizations) might like. Some is permissive, and not what publishers and creators might like. That's how copyright works--it tries to find a balance, and that balance isn't always "what's possible" but what can be litigated.

Places like archive.org don't always have the "public interest" at heart, they have their own interest at heart and that might overlap to a great extent with the public, to a great extent with just a portion of the public, or only overlap to a small extent with most of the public. In some cases the copyright law's been gamed by the "public" and in some ways what's probably fair for all concern will require a bit of money on the part of libraries and archives to make happen.

[bucolic_frolic]

3. Evolution

Libraries here in PA have grown to be part of the community over
the last 10 years. The Great Recession brought demand for services,
computer access, knowledge just when budgets were under stress.
Public and community libraries are more visible than ever, hosting
movie nights for kids, workshops, computer tech support, as well as
a wider variety of books from across the political spectrum (which was
not always the case).

It's good to see libraries focus on kids. Without reading and knowledge,
society doesn't have much in the intellectual bank.

[Nitram]

5. My sister is a librarian in Lancaster.

Glad to hear that libraries in PA are thriving because people need their services now more than ever. They've done a remarkable job adapting to changes and the digital revolution without abandoning their primary function: making books available to the people.

[Fast Walker 52]

4. I'm confused... in the first part it says the libraries don't want this then further down

it says libraries are calling for the changes.

anyway, it's not even clear what the function of these changes is.

[Ford_Prefect]

6. Some of those changes effectively embody controversial features of the COICA, PIPA, and SOFA acts.

They redefine what the range of fair use copyright confers, and who must enforce it, and on whom it may be enforced.

The articles I read said that most Librarians DO NOT want the changes proposed and have objected to them in quite public ways.

example: https://cyberlaw.stanford.edu/blog/2016/07/whose-copyright-office-0

This month, the Office has become involved in an FCC rulemaking proceeding that proposes to open up the cable set-top box market to competition from non-cable equipment providers. (For some background on the rulemaking, see here and—less wonky—here.) The position the Office appears to be taking on the copyright implications of the FCC’s proposal aligns with that of the cable and motion picture industries, which flatly oppose the proposal. In connection with the rulemaking, I joined the EFF and some academic colleagues—Peter Jaszi, Pam Samuelson, Betsy Rosenblatt, and Rebecca Tushnet—in submitting comments to the FCC explaining that no parade of copyright horribles (viz. unchecked piracy) will flow from “unlocking the box.” We pointed out in our comments that the FCC’s proposal is fully attentive to the content protection issues that could arise from opening up cable programming streams to non-cable equipment manufacturers. The cable box, in other words, is not a copyright Pandora’s box; it can be opened carefully, in a way that both protects copyright holders and enables overdue innovation in the way that cable subscribers access content for which they’ve paid.

Out of concern that the Copyright Office is developing a position in the FCC proceeding that is at odds with the Supreme Court’s clear guidance in Sony v. Universal concerning the limited scope of the copyright monopoly, my academic colleagues and I submitted a letter today to the Librarian of Congress, who has oversight of the Copyright Office. In our letter, we expressed our view that “nterpretations of copyright law that operate to expand copyright entitlements into copyright-adjacent fields of commerce run counter to Supreme Court precedent and the copyright system’s goal of increasing public access to knowledge and information.” We hope that the FCC and members of Congress who have taken an interest in the current rulemaking will see that the copyright issues being raised are either not properly within the scope of copyright or, to the extent that they are, have been adequately addressed in the FCC’s proposal. Sony makes it clear that copyright holders do not get to control the manufacture or distribution of video equipment with substantial non-infringing uses. The threat of piracy should be taken seriously, but it cannot vitiate Sony’s important copyright-limiting principle.

By statute, the Copyright Office has authority to “advise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters.” The Office thus plays a legitimate and important role in shaping copyright policy. To properly fulfill that role, Office staff must take into account the public’s interest in both the protection of copyrighted works and the development of affordable new technologies for accessing and disseminating those works. Copyright is not just for the benefit of copyright holders, and neither is the Copyright Office

.

example: http://blog.archive.org/2016/06/02/copyright-offices-proposed-notice-and-staydown-system-would-force-the-internet-archive-and-other-platforms-to-censor-the-web/

In May, the US Copyright Office came to San Francisco to hear from various stakeholders about how well Section 512 of the Digital Millennium Copyright Act or DMCA is working. The Internet Archive appeared at these hearings to talk about the perspective of nonprofit libraries. The DMCA is the part of copyright law that provides for a “notice and takedown” process for copyrighted works on the Internet. Platforms who host content can get legal immunity if they take down materials when they get a complaint from the copyright owner.

This is an incredibly powerful tool for content owners–there is no other area of law that allows content to be removed from the web with a mere accusation of guilt. Victims of harassment, defamation, invasions of privacy, or any other legal claim, have to go to court to have anything taken down.

Unfortunately, this tool can be, and has been abused. We see this every day at the Internet Archive when we get overbroad DMCA takedown notices, claiming material that is in the public domain, is fair use, or is critical of the content owner. More often than not, these bad notices are just mistakes, but sometimes notices are sent intentionally to silence speech. Since this tool can be so easily abused, it is one that should be approached with extreme caution.

We were very concerned to hear that the Copyright Office is strongly considering recommending changing the DMCA to mandate a “Notice and Staydown” regime. This is the language that the Copyright Office uses to talk about censoring the web. The idea is that once a platform gets a notice regarding a specific copyrighted work, like a specific picture, song, book, or film, that platform would then be responsible for making sure that the work never appears on the platform ever again. Other users would have to be prevented, using filtering technology, from ever posting that specific content ever again. It would have to “Stay Down.”

and in addition:

This idea is dangerous in a number of ways:

No Due Process. Notice and Staydown would remove all of the user protections built in to the DMCA. Currently, the statute allows users who believe material they have posted was taken down in error to file a counter-notification. If the copyright holder does not choose to bring a lawsuit, then the content can be reposted. The law also prohibits the sending of false notices, and allows users who have been falsely accused to being a claim against their accuser. These protections for the user would simply go away if platforms were forced to proactively filter content.

Requires Platforms to Monitor User Activity. The current statute protects user privacy by explicitly stating that platforms have no duty to monitor user activity for copyright infringement. Notice and Staydown would change this–requiring platforms to be constantly looking over users’ shoulders.

Promotes Censorship. Notice and Staydown has a serious First Amendment problem. The government mandating the use of technology to affirmatively take speech offline before it’s even posted, without any form of review, potentially violates free speech laws.

It Just Won’t Work In Most Cases. Piracy on the web is a real problem for creators. However, filtering at the platform level is just very unlikely to stop the worst of the piracy problem. Filtering doesn’t work for links. It doesn’t work well for certain types of content, like photographs, which are easily altered to avoid the filter. And so far, no computer algorithm has been developed that can determine whether a particular upload is fair use. Notice and Staydown would force many cases of legitimate fair use off the web. Further, intermediaries are not the right party to be implementing this technology. They don’t have all the facts about the works, such as whether they have been licensed. Most platforms are not in a good position to be making legal judgements, and they are motivated to avoid the potential for high statutory damages. All this means that platforms are likely to filter out legitimate uses of content.

Lacks Transparency. These technical filters would act as a black box that the public would have no ability to review or appeal. It would be very difficult to know how much legitimate activity was being censored.

Costly and Burdensome. Developing an accurate filter that will work for each and every platform on the web will be an extremely costly endeavor. YouTube spent $60 million developing its Content ID system, which only works for audio and video content. It is very expensive to do this well. Nonprofits, libraries, and educational institutions who act as internet service providers would be forced to spend a huge amount of their already scarce resources policing copyright.

Technology Changes Quickly, Law Changes Slowly. The DMCA requires registered DMCA agents to provide a fax number. In 1998, that made sense. Today it is silly. Technology changes far too quickly for law to keep up. Governments should not be in the business of mandating the use of technology to solve a specific policy problem.

example: http://blog.archive.org/2015/10/08/our-comments-on-copyright-office-recommendations-for-mass-digitization-no-extended-collective-licenses-please-2/

The regulatory idea is to set up an “Extended Collective License” system which would establish collective management organizations to monetize and control masses of unclaimed orphan works, along with claimed literary and photographic works. Unlike collective licensing societies such as ASCAP and BMI that artists opt in to, this regulatory regime would apply to works that have no one claiming them–which turns out to be a large percentage of our cultural heritage. These societies would be tasked with collecting licensing fees from nonprofit libraries and website owners. A problem is, most of the owners are nowhere to be found, and so there will be no one to distribute the collected fees to. Many nonprofit sites wishing to make potentially culturally important materials available have no revenue stream to pay these taxes and would be forced to take materials down. Works that scholars, researchers and the general public may find valuable would go dark, to the benefit of no one at all. This regulatory regime would ultimately become a system for controlling what is in libraries and on websites via taxation, with much of the proceeds going to fund private collecting societies.

For years now, libraries, web communities, and individuals have been posting older works online, and for some commercially viable works, there is a small industry that sends take-down notices. It turns out that a vanishingly small fraction of these older materials are ever objected to. While this system is not perfect, it has allowed for many older cultural materials to join the the valuable and growing resource that is the web.

Although it is encouraging that the Copyright Office is trying to help bring our analog cultural heritage into the 21st Century, this proposal seems detrimental to that goal.

Hopefully the above remarks make clearer the kind of problems that will arise from the proposed changes. As I think I understand it there are more and possibly more onerous changes included in the proposal. It amounts to writing a law which confers control of certain classes of speech to a secret committee which no one can see, and from which there is no appeal nor even an explanation of sanction required.

The danger of it is that Congress may assume this report is a request by Librarians and other archivists to enable this degree of oversight, control and sanction. This could not be further from the truth as they have voiced serious concerns against the proposal as noted above.

The recording, movie and technology industries could not get their wants and desires passed in the COICA, PIPA, and SOFA acts. There is every appearance that they have steered this document to contain what they could not get by other means.

[Fast Walker 52]

8. Hmmm, thanks

complicated, but I see what you are saying

[Ford_Prefect]

9. Complicated indeed and obscure by design to keep us in the dark about the dimensions of its reach.