Engelberg Center Live! is back! Today's event is a conversation with Internet Archive Founder Brewster Kahle. Engelberg Center Faculty Co-Director Jason Schultz discussed the nature of ownership in a digital world, and how this connects with ebooks shared by the Internet Archive. The event was held on September 20, 2022.
Announcer 0:04
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg center on innovation Law and Policy at NYU Law. Today's episode is a conversation with Internet Archive founder Brewster Kahle. It was recorded on September 20 2022. The first voice you will hear is that a Professor Jason Schultz.
Jason Schultz 0:27
Welcome and thank you for coming. My name is Professor Jason Schultz. I am part of the Engelberg Center, here at law school. So it's a technology Law and Policy clinic. And I'm excited today to have Brewster Calle, from the Internet Archive, the founder and you still chief librarian, or what's your what's your control library, to talk about questions of digital ownership in the digital economy. And, in particular, to think about some of the challenges that we face, when we think about how owning things, has given us a right, and given our institutions rights to decide what to do with them, how to share them, how to innovate with them, how to pass them on to our children, or other institutions. And then as things in digital space have gotten more complicated, not only have there been blurry lines around the technology, but also the law, and that the law is currently in a state of flux, trying to figure out how to balance this and how to work it out. Um, and so I wanted to start out, and apologies to those who see the recording later that you can participate, but maybe you can home with just a little quick sort of survey of thoughts on ownership, and in particular, on ownership related to intellectual property. Right. So I wrote this book, this is how I plugged the book, they use it as a prompt at talks and conversations held the end of ownership with Aaron personality, who's a professor at Michigan, about some of these issues. And when we publish this book, of course, you know, the traditional hardback, very satisfying the whole, right? That's one version of it. I love this because I have nothing to play this on anymore. But this is the CD of the audio book, which unopened as you can tell, right? Which is another version, right? And then finally, you have, you know, my phone here. And on my phone there is in various formats. The eBook of the book regret, right. So there are sort of three versions here. The traditional hardback the CD audiobook, and then the ebook which is inside here, in theory, at least in or connected to a copy of it somewhere, or what may be the license rights to be able to borrow it for a little while. Exactly, or something. Right. So I just wanted to take a quick, quick poll survey of the differences. And when people either you if you don't know this, that's fine, just guess, but um, for this version, how many people think that I can lend this to a friend of mine? Raise your hand if you think I have legal rights, I should say legal, right? Like there's no legal problem with me lending this tool. Okay. How many people think I can leave this to my children? In a will or something? Okay. Can I resell it? All right. Can I mark it up with a pencil with lots of notes and comments and scribbles and scratch it up? Okay. And then finally, can I burn it in violent disagreement with the author? Assuming I hate myself for having written it? Is there any legal problems, assuming I don't like vandalize something, whatever, but like a controlled fire in a trash can that I own on my property or something? So no problems. Right? All good. I have all the legal freedoms, I need to do all those things. Okay. All right, let's do this one. Can I lend this to a friend? Raise your hand if you think I can do it legally without legal problems? Okay. Can I leave it to my children? Right? Can I resell it? And maybe one or two people thinking about it? Okay. Can I mark it up with notes? Maybe if I was a software to do it and things like that, right, assuming, assuming some and we'll talk about assuming that this new technology connected to how I listened to it or how I consume it. Right. I mean, maybe we'll talk about the restrictions on that. And then can I burn it in violent disagreement with the office? Right? Yes, yes. Okay. So pretty much Yes. Still a little maybe questions around marking up in a few things, right. All right, ebook version that might be on my phone. I'm not going to subject it to the terms of service or restrictions. But just if any of you have any books, and you let's just let's just say through the Kindle store, like as an example of one version of this or the Apple books out or something like that something very generic Time. Can I lend it to a friend? Right? No. Okay, well, let me be specific. Can I lend it to a friend without lending them my phone? Okay, can I leave it to my children without leaving my phone to them?
Can they inherit the book somehow? Probably not. Can I resell the ebook copy, assuming and we'll talk about whether it's licensed or owned, but like so say, let's say I went onto Amazon and hit the buy now button to download it, or I hit the buy button on Apple books. Can I resell that copy? Well, we don't know that depends on the terms of service. But what's your intuition tell you? Probably not right. Okay, can I mark it up with notes in ways that are not enabled by the apps where I'm reading it? Like if they don't give me the reason for the ability to mark it up or highlight? Okay, right. So maybe, if I have other means of doing that, and then finally, without destroying my phone, can I burn it in violent disagreement with the author's premise? Maybe, right. Well, let me ask you so so it looks one way you might burn it. And violent disagreement? The author puts an e book on your phone? What?
Brewster Kahle 6:23
Flame over Twitter?
Jason Schultz 6:25
Right, exactly. So this is all just a little exercise, obviously, it's a provocation to say that something has changed here, right. And this is obviously just symbolic of many different changes that have happened in digital economy, digital culture, and in how we think about digital ownership that the answers for the book, and hardcopy were so simple and easy and intuitive. The CD was mostly the same, although there's some interesting questions around some of the issues and then ebook, it's a lot more complicated, right, lots of questions about license versus sale versus the technology versus a lot of things. Right. And that's essentially a little bit of what I wanted to talk about today leading into the conversation about libraries. With Mr. It's about how complicated this has become, and sort of what's at stake, like Why Why worry or care about any of this, right? So the three things I want to sort of lay out are just a quick thing about the history of why legally, and then about the three shifts that have sort of caused these questions in my mind in with Aaron, when we read the book to come up. So historically, there has always been in the last couple 100 years in most of this sort of, you know, capital, capitalist oriented neoliberal economies and political systems, a notion of intellectual property. And as those notions form, it gives certain rights in the intangible side is able to say, to ideas, stories, you know, brands, etc, right. And so the intellectual property owners have a right to those things. But when they made a tangible version of something like a book, so the intellectual property in this area, and I maintained, and then the publisher makes a physical book, when the book has been sold, or given away, or lent or, or sorry, when the ownership of the book has been transferred, or a copy of particular copy has been disposed of even given away. The way that the law is generally dealt with this is that it's okay, well, the intellectual property still remains with you. But for any particular copy that is sold or disposed of or given away, or transferred in terms of ownership, it's exhausted for that copy, that copy is now free of the intellectual property, and people can lend it, resell it, burn it, you know, mark it up, do what they want with it, right. And so they try to make this distinction between the kind of intellectual property that maintains with the IP owner and then particular copies that are made. And they said, Okay, well, but this is the reason for that is this is now a piece of personal property, right? I buy this book, it is now my property, I own it. Right. And therefore, I get the rights of ownership to do things similar to like a house or a car or, you know, any number of other things we own. And that this worked for several 100 years, generally, although there were marginal problem cases occasionally. That got resolved because there was mostly in log and you could tell what was a coffee? You could sort of tell I mean, there were some distinctions that were problematic. But they eventually got worked out in the sense that people said, Okay, right, I can see this, I can feel this. I kind of know what it is. And maybe in courts in particular, were like, Okay, we know the difference between the sort of concepts and ideas that are the intangible pieces and something physical here. Then there were three shifts that happened, particularly for the digital economy that challenged these notions. And the first was, and this was alluded to earlier, which was this notion of like, well, who owns a digital copy? Right. And so, most books, historically were always sold old adage, a point of sale, right? So you would pay money, you would take the coffee with you, and then you owned it, right? And there's this kind of clear circumstance of like, okay, money changed hands, I get this, it's a quid pro quo, right. But for a bunch of different reasons, which many of you may be familiar with. In the 1950s, especially, there is a real movement in computers and digital software towards licenses, right, or contracts that are sort of the terms of service type models that we have now the the user agreements, and they were mostly oriented towards the computer itself and the software in it, but eventually, for a bunch of different reasons, they also started to apply to the content, right? So you, when you click the Buy Now button on Amazon, or, you know, Apple books, it still comes with a license agreement that supposedly tries to tell you what you do or don't know, right. And the idea of this kind of simple transaction of buying something owning a digitally, has become much more complicated by a bunch of different legal terms and service and contracts and licenses and things like that. So sort of sorting all that out has become far more complicated than going to the front desk at a bookstore and paying $25 and taking this home with you, right. The second thing is that the question of a particular copyright, so the doctrine that governance is, which is often called, you know, copyright exhaustion, or the first sale doctrine is kind of a nickname for it
really says, Okay, well, the intellectual property, whatever it is, in this particular copy is exhausted. So as long as we can define what this is, then whatever this this thing that gets traveled sort of freely, in all the ways that we talked about earlier, but as we talked about, with the ebook, copy on my phone, defining where and how the copy exists, is, is challenging, right. And as technology becomes more complex, and to some degree more efficient, with the cloud, and with lots of multiple servers and lots of multiple devices, and sharing across devices, insurance costs, families that even gets more complicated. So where's the copy of my book in this phone is a really interesting question. Right? Not only technologically, but also in terms of our own mental models have, like, where I access it, where I see it, you know, it's like, once it shows up on my screen, is it really there? Or is it actually stored somewhere else, and it's just being kind of display in a certain way on a device that I own? Right. So as the notion of the copy has become more complicated by digital technology, and storage and transmission, it's harder for courts and policy makers, but also institutions, like libraries and archives and schools like NYU, to figure out exactly what it is you own. Right? How do you define it, in terms of what it is. And then the third is, in fact, copyright laws. So right, which is that the digital copyright questions have gotten incredibly complex and interesting. I mean, a lot of my students who work in the clinic are dealing with them. A lot of the, you know, the lawyers and academics and librarians who are trying to figure out how digital libraries or digital librarianship functions are trying to figure out where the law is right now. And with many other issues, it's complicated. And so you see a lot of discussion and debate in policymaking circles, you see a lot of new laws trying to apply. And you see a lot of court cases. And we can we can talk about court cases as well, including ones that are ongoing involving the question of portfolios called controlled digital lending, or the you know, what does it look like to lend a book, a digital copy of a book, in the current world, for libraries, or even for people, right, I have a whole library of books on my shelf, and I have digital copies of them at some point in time and those out as well. And so these copies of questions are really, you know, the focus of kind of the law part of this, but I want to turn to Brewster now, and, and kind of tee up the conversation around what's at stake. And so when Erin and I wrote the book, we identified some some categories of things that we thought were at stake in this transition from physical analog books to digital, or just really physical analog, anything digital objects in the digital economy, one of which was preservation, right. So as long as I don't run this, and I take good care of it, this book might last a very long time, right? Even to the point where MIT Press, the publisher might go out of business, the book when you go out of print, maybe it gets banned in certain areas where you're banned books still happen, as we all know, and has been happening lately in a number of different places, especially around certain topics. And maybe it's unavailable for other reasons, but as long as I have a copy, I can make a copy available, and no one can stop me right. So this question of as we move to digital, if the publishers are other IP owners are still controlling things and they don't quite control the copies. Or maybe it's apple, maybe it's Amazon or maybe it's someone else and a platform level or device level controlling who has access, preservation content access, which I just mentioned is also the other question, right? So, for example, another question I get asked is, is there any country in the world where I can't put this book in theory, assuming that's not banned for content reasons, which would be amazing work. But if I could not put this book in my suitcase and go anywhere in the world and read it? And you know, in theory, the answer is, I can totally read this book anywhere in the world, as long as it's physically with me. But that's not true necessarily for digital books, right? For ebooks, right depends on to some degree, the provider of that book is monitoring where you're going, right? They could be surveilling you, they could be tracking where you're headed, and whether they believe that it is, in fact, lawfully available in the country. And they could try and restrict it. Like if any of you have subscriptions to Netflix, or other services, or Spotify, you might notice when you go to different jurisdictions and get different options, right, things like that. So there's access questions, is it available in all formats for people who might have various, you know, challenges around reading, like visual challenges, or cognitive challenges or other kinds of challenges, right, around abilities. That is something where, when a book is printed, and can be printed in certain formats, and then those formats are free to travel, they can travel, but it is very much in the digital realm and the other issue as to whether those formats are supported and available.
And then finally, there's a question of competition, right, which is, and this is something I really want to talk about, about the marketplace or complex, in particular, which is secondary markets. For you know, works that have intellectual property in them have existed ever since. Anything before intellectual property ever existed, right? used bookstores, eBay, flea markets, even museums and galleries rely on the idea that people who own works of art can loan them to the gallery, the museum, right? Go up and see if you go into museum from the collection of so and so. They don't necessarily have to and often don't even ask the artists permission. If somebody if I own a piece of artwork up on my wall or in my house or something in a museum wants to exhibit it, I am very much free to just give it without the artist permission and say, No, it's mine, I own it, you put it up, right. It's kind of things in the digital world, it gets more interesting and complicated and potentially problematic in terms of the ability to do that. So from a competition point of view, right? If there's secondary markets, like eBay, or, you know, Craigslist, or, you know, flea markets, or any kind of exchange, and resell markets, it does provide competition in the sense that publishers have to decide, are we going to allow? Are we going to continue to publish initiative, this book? Or is this book going to kind of float there are we going to do it all at the same time, maybe we offer a new special edition of the book kind of compete with older editions that might be floating around, all these decisions come into play if the publishers can control all the markets. In fact, all markets are essentially their markets to control. That's a very different dynamic. And this plays out in particular, around things such as device locking, right, so one of the other things I could ask is, What if I get a different operating system? What if I switch to Android? And I just switched my books over? What if I want to jailbreak my phone from Apple? And on my own ereader application? Can I read that book that I bought legitimately on that other ereader application? You know, Can I switch my music, from whatever service provided it to a different service, if I want to listen to it on a different app or something like that? On my own? Maybe I hungry? And so these kinds of questions have been have definitely been at the heart of questions of ownership, because if we really still own things, in a digital economy, we still should be able to do all the things that we did when they were analog. But it's not quite the same. So with that, I'm going to turn to Brewster and I want to ask you this fair about what are some of the challenges that you've seen in, you know, hoping to run an archive and a library around digital ownership? And what are some of the thinking that you've seen both within the archive, but in other libraries and other institutions and social institutions about how to start to think about addressing those challenges?
Brewster Kahle 19:22
Thank you, and welcome. It's great. There's a small enough group, we should be able to interact. Let's let's let's do that. I run a nonprofit library, the Internet Archive, you probably know it at the Wayback Machine, right. But you may not know that we've got huge physical collections. We've got digitized collections. We have born digital materials of books, music video, and but in many ways, it's sort of part of the internet, which I think of as the original idea that I've signed on to was to build the Internet into the library. That's what we kind of saw over the internet, the web is like I give you the books, you can ask questions of your screen. That was what we promised, we haven't delivered. And it's becoming very complicated not because of technical issues, but because of wealth, basically very, very large monopolistic companies that are platforms rather than protocols. So what, how it's really tripping us up, is majorly, and it's, and it's tripping us up, and all of the other libraries, and I would say, educational institutions that are trying to grow into the digital age. So what do I mean by this, but what libraries do is they buy things, preserve them, and lend them. That's what we do. That's what we've always done. We've done that before. Copyright, we did that before print, we did that always. That's how libraries work. What this court case is about, is basically, we have four major publishers suing the Internet Archive, saying we're not allowed to buy in the digital world, we're not allowed to preserve except for in exactly the way that they want us to, which is not at all and we cannot lend. It's like, game over. Right? Where it's sort of like you're not allowed to. So in general, I, we buy what we can scan what we have to the idea of scanning a book, this book to make a crappy PDF out of it, rather than getting a nice ePub is done. But that's what we've had to do. So for decades, the Internet Archive has tried to buy ebooks, in the same sense that we would buy physical books from publishers, there are a few publishers that are doing that. A couple of them in the in the New York area that a press I think is around here. 1111. So there are a few, but the big boys, nope. And we even tried to go and make a book server system, we're going to make another run at that with Cory Doctorow and all because it's become such a problem. But a book server system is like a web system, that you'd have search engines, you'd have booksellers, you'd have libraries, and you'd have apps that would be able to go and borrow and buy ebooks would not is that kind of what you'd expect out of the world. And you'd be able to go and pay for it. Or you'd have restrictions on your lending and have to return it right to the library. But right now, that is that was not supported by the big publishers. And
as of now, so this lending thing of books, digitize books, we started in 2011, with the Boston Public Library, and we're now have at libraries that are working with us, lending their digitized books, digitized of non circulating books, digitize it and lend it one reader at a time. It's completely clunky. It's completely weird that we do this, but we're emulating what the publishers do with their imprint works. So we wrap it in the same DRM, whatever that they're comfortable with. And we lend it one reader at a time, as people are saying, Oh, it's like a library. It's like, yeah, just like a library. So that's what we've been doing. And in the beginning of the pandemic, they sued us. So this was going along fine for 10 years. Right. And a hottie trust joined in MIT libraries at Harvard Library. It's a major scale, widespread library practice. And I've learned a lot about how these lawsuits things work there. Wow, what a weird, weird part of how to evolve a system. Because I was involved in when I put the Wall Street Journal in the New York Times up in a previous company to try to get this open Internet to work. I did the first advertising system for CMP on the first advertising system on the web, so I've worked with people and getting them online, and how to get that whole thing to work. But the idea that the AAP went and sued us using their their publishing partners to to to foot the bill, I think is ridiculous. It's not the way to evolve an industry well, and it's a long standing widespread library practice. And it's fine. So what are they afraid of? And this is where I was really scratching my head is like, I really, really gonna go back to having multi Your multimillion dollar lawsuits over scanned crappy PDFs of old 20th century stuff. I mean, didn't we've finished that with the whole Google thing. And I think it's that they just don't want anything in the digital sphere that isn't under their control. It's on. And I really came out in the filing that they just, they didn't even ask, they demanded that their expert witnesses not touch the issue of whether there was any financial impact on their business based on the whole idea of control digital lending, not just what we're doing. But in general, they demanded that they not bring that up. So this is not about money. It's about control. And if you if you make a every reading event, be a permissioned event, something really changed and really problematic.
Jason Schultz 25:54
Yeah. So let me let me ask you that. Let me feel the law students a little bit more. So yeah. So the lawsuit that Bruce was talking about, came about, in part because the implemented idea of this controlled digital lending system, right, the controlled digital lending is this idea that you're not just scanning a book and making it available to anyone who wants it, right? What it is, is that, in theory, you've gone and bought physical copies of books, right. And so let's say you buy 10 copies of my book, right, you can scan and then lend out up to 10 copies, right, because you've got 10 physical copies. So it's trying to preserve to some degree, the classic for sale, exhaustion notion of like, buy a copy, and then you can lend that copy out. Now the copy is digital, not physical. And that's where the lawsuit has come in. And one of the things about the entire history of digital copyright to some degree, is that it's very difficult for copyright law to be reconciled with the number of things that computers have to do to make content available to us. So most computer systems have to make millions of copies of something in memory on servers. And every time you know, it gets transmitted to a different device that makes another copy and recovery, I suppose to restrict the number of copies you make. Right. So the lawsuit was really focused on this question. And full disclosure, you know, a number of intellectual property professors and I filed an amicus brief in support of the archives position on it, mostly around this exhaustion question, right, this for sale question, right? To say that, you know, if libraries have always lent books that they've owned, there's no reason to think that with digital, it should be any different. The problem is to identify how to make sure that the exception doesn't follow the rule, right? Like, how do you make sure that lending doesn't end up being a way that publishers stopped making any money, that author stopped making any money and the copyright owners get no return on their investment? Well, fundamentally, the first sale doctrine requires a first sale. Right? So much like throughout all history of publishing, publishers, were only ever entitled to sell their book once. And then the people who bought it could lend it out or resell it, and they wouldn't get ever paid ever again. Right? So controlled digital lending tries to implement that principle, right, which is that you can't do controlled digital lending with things that you didn't, that weren't subject to a first step, right. In other words, if something hadn't ever been sold, right, say it had been stolen, or something else, then you couldn't do CDR with it. But once it had been sold, at some point, originally, that copyright owner or the publisher, author, whoever got compensated for everything they were ever getting compensated for in that sense. But the other thing it does is the way that it's mostly designed, is it uses this Brewster said, the digital rights management technology or the kind of encryption technology that limits its book, its ability to be reproduced, but also its accessibility, right? So for example, if you were to check this book out from a library, you might, in theory, have two weeks to read it before it's due back or you have to renew it and things like that. And similarly, the Digital Rights Management Technology restricts reading to similar periods, and then your period expires, it's re encrypted, so you can't read it. And someone else then can check it out things like that. So TDL is this response of trying to say yes, we understand that multiple copies will get made, because computers are computers, right? Digital is digital, you just can't at least we haven't found a way around that yet. And I know that we want to write because that's a part of the efficiency of the whole system at this point. But can we impose appropriate reasonable restrictions that essentially provide the same reassurance that physical analog lending did
so that the publishers will get their first sale? And that people who want access to books from libraries can still get them digitally without a flooding the market essentially in ways that haven't traditionally happened in Now, what's interesting about this, and I want to come back to this question the market, right? Because one of the things that yeah, is interesting is that when the publisher, so they just filed their summary judgment motions, rather, lawyers and law professors and law students, right, which is that you put put all your evidence on both sides. So first of all, lawyers did it. The publishers lawyers did it. And you're trying to argue about telling you basically, both sides said that the judge, we know everything we need to know about the case, you don't need any new information. We don't need to also go to trial, you can basically look at all the information and decide what the law is. And the key issue legally in the case is Fair Use question, actually, because the question is whether the fair use doctrine, which is a whole separate thing, from the first sale doctrine, allows for digital lending in this context. It's a it's a limitation on copyrights, when it's in the social, it's good for society for a number of reasons. And in that question about markets, right? It's really interesting, because the truth is, the publisher is very uncomfortable with this is that, you know, every single time they have sold a book, they lose feature sales on that book being resold. Right? So if if I buy a book, and I resell it, I don't give the copyright owner a single cent, right? They don't they, you know, they would suffer a market loss. And they would argue, right, and then if the person I sold it to, it's a little Brewster, and he resells it, they lose that sale, too. And so on, and so on, and so on. And so on, ad infinitum, like for hundreds of years, there are hundreds or 1000s of sales, and you think about all the copies of all the books that have ever been resold or given away, or, you know, we're when I give it to my if I leave this to my son, right, that's a lost sale for them in the sense that if he couldn't get it, and he had to buy it, they would get more money. Right. So this is a real interesting question of what is lost, right? And what the first sale document exhaustion of said for 200 years. And in fact, the most recent US Supreme Court case on the court saying case, Justice Breyer wrote, that's just not something covered on Earth wherever promised, like the Constitution in the United States, and our copyright laws never promised them anything more than a first sale ever. And that's the deal. That's the bargain. You get this copyright, but you don't get anything more than the first time. So you better price our first one right, as best you can. Because that's, that's your one shot. And so what's interesting here is that a lot of the complaints, I think, is I read it, and this is part of why I think there is no evidence there is they're saying, well, we want it all back now. Now that it's digital, we want to recoup all those lost sales, right. And if you think about all the lens that libraries have meant, that made over hundreds of 1000s of years, right, every single book, if you were to tally up every single book that was ever led by a library, and then consider that a lost sale, you'd be in the trillions or beyond, right. And yet, that's what they're sort of claiming that they now have in the digital world, right to kind of recoup that they never got, right. And so there is a loss in a sense, but I think they're scared, I would say to be so bold as to say what it is because then it really shows that they're like, the law is never allowed them to get access to any of this as a financial matter.
Brewster Kahle 33:16
And we've seen something very different in the, in the use of these, we one of the cool things about like, let's try it, it's you don't have to land in the theoretical sort of, it's the same as a sale, but people are using the internet archives, digitize bookstore is there in and out in less than a minute or two, on average, it basically, almost all 90 days, we went from a 14 day lead to one hour lead. And that was just fine with everybody. In fact, they don't even use up the hour, in almost all circumstances. They're in and out. They're basically going and checking references. They're using it in a very different way than the oh, I'm going to do beach reading, at least for the internet archives, 3 million books, and these guys are going and saying oh my god, everything's on sale, you know, the last sale, it's just not true. It's just how libraries are used, is often very different. Then, sort of why people would maybe originally when it was new, so the Internet Archive doesn't even have the first five years of books in general. So we wait. Right and because we're a library and so that's how the we run that as a library so we can do research type things and also just sort of diminish any complaints that might might come in and it's worked for 10 years. Another weird thing about this is it's not copyright. They've they screwed around with copyright with with very expensive lobbyists for a long time and made it very long onerous that Allah Allah they're not even satisfied with that they're going to licenses which don't ever Eclipse All right, so we're now having rule of contract, not rule of law, you can't have an exemption from a copy of a contract, I understand it for the print disabled, unless it's in the contract that it's specifically allowed. So we're we've got a shift here a power play. And it's combined now with publishers that are basically aggregating into a very, very few organizations. And the combination of all of this, there's not, there's no competition. They're basically platforms. There, there are these lots of complaints now about the Twitter's and Facebook's in the light. But, well, we've got these enormous media conglomerates, one of the organizations that's suing the Internet Archive is owned by Rupert Murdoch. And this is a global media conglomerate. So it's really not your mom and pop policies. It's nothing like what we kind of think of it's a book tree.
Jason Schultz 35:58
It's interesting. Um, yeah. I was just going to turn to questions. Do you want to turn your mic on? Are you
Unknown Speaker 36:09
happy to try to turn my mic on? Is that is that doing anything? All right, great. Yeah, like a license is a license except when it's not a license, right? Because what really slays me around all of this, is that the publishers are insisting that they are licensing the books to retailers. But when they pay their authors, they pay the sales, which is a much lower royalty rate. So they, they they really love this thing, where they're like picking and choosing the part that works for them. But licensing revenue should be four to seven times higher than sales revenue on these books. Sorry, for an e book that's normally 25%. But licensing revenue might be 70%. So a little bit different for them for physical. And, and I think that there's a really a really interesting thing to pick out here. And I've talked to some people in the UK about like potentially running a test case around this because that author revenue has not been accounted for properly ever since we first started selling ebooks. Unfortunately, as soon as you start trying to do any kind of copyright advocacy or litigation, and it's on author side, where author's interest depart from rights holders interests, then all of the money for advocacy and litigation evaporates. And it's very difficult to actually run these cases.
Jason Schultz 37:25
Yeah, no, it's quite interesting. One of the things that it always reminds me of exactly is, so the sort of biggest earliest first sale exhaustion case in the United States is this case, Bob's Merrill versus stress where publisher, Macy's retailing department store was reselling a book called the castaway. And the publisher had put a stamp on front, which they claimed was a license that said, you can't resell this book for less than $1. And Macy's was selling it for less than $1. And they sued for copyright infringement. And the Court said that label doesn't matter. They call it a label, not a license. But it's essentially the idea of putting terms on a book that control it beyond what copyright allows. Right. And so this is the this is this question of, I think, which is really interesting is like, what are the terms that the publisher tries to impose downstream on retailers? And is that even compatible with the deals that the publishers have with the authors? And are they accountable to the authors for these attempts to control downstream markets? So that you think you're right, like, I think a lot of authors, and artists in general, are kicked out of those conversations.
Unknown Speaker 38:37
I should say, as well, I mean, the there's little point in actually litigating me. So making a real big deal about it, except insofar as we can get redress for for previous losses. But as soon as you put this, as an issue, the contracts immediately change. And they explained that this is what authors are gonna get, which is very, very little. And nobody's got any bargaining power to change it anyway, in the publishing industry, with these behemoth publishers that we all have to negotiate with. But yeah,
Jason Schultz 39:08
well, that to some degree is to Bruce's point, too, about the concentration in the publishing industry as well. Did you ever Yeah. You don't mind turning?
Unknown Speaker 39:17
I'm just going to ask, I'm curious if it ever enters these conversations or the litigation, that they're all of these like PDF drive, and all of these other websites where you can download any book you want for free illegally, like, I just looked at it, it took me 30 seconds to find Professor Schwartz's book. I'm like, so that, to me, sort of pushes on the point that like, the idea that there's monetary harm happening to the publishers from libraries is kind of silly to me, because the more difficult you make it for libraries to lend these, the more people are just going to turn to these
Jason Schultz 39:48
alternatives. Yeah, no, I mean, I think that's the other piece of these economic analyses, which I mean, all the economists and I mean, I'm not a fan of economists, but um, when they look at these questions, tons of what is the harm, right? The narrower you make the universe, the less realistic it is. Right? And so they'll narrow it down to simply the defendant and the plaintiffs when really you're right. Like there's a whole universe of possibilities out there for people to get access to, to content. And if they can't get it from one, they'll get it from another doesn't mean they're going to pay for it. Right, that sort of assumption that, you know, they will end up paying for it when they're already looking for free alternatives. And especially if they only come for one minute. I mean, that's the other interesting thing. Right, right.
Brewster Kahle 40:35
Yeah, so Wikipedia use, it's the going to the footnote in Wikipedia and verifying it so that the Wikipedia article can stand. Because basically, the Wikipedia biases towards things you can click on and verify if you can't attend to basically take that away. So they're going towards things that are available, which are, you know, more and more paid for advocacy pieces on the internet, as we get more and more things behind paywalls. That's why we need libraries is to be able to be able to reference check things in the digital world. I had a very interesting conversation with a University Press. Rate leader, Director, she wanted to get me on the board again, of the University Press. I said no, because last time, he didn't do anything. So but I said, I've got a project for you that I have for is let's go and digitize your backfile and lend it one reader at a time. She said, Great, let's go, let's let's let's go about that. And then she call back said, oh, gosh, that would be really hard. And I said, you know, your books are available in library Genesis. And she said, really? I said, Do you know how many and I said, Give me a day. And so I went and found it was 3000 different titles. She didn't know she had 3000 titles, because it was all the different translations in relationship. Everything. She said, Oh, my God, the law, you know, the world has changed this, this lending thing. Sounds reasonable. Right? So we started working with this University Press. And there's a whole question of whether they wanted to go and ask permission. And so they said, Okay, let's ask permission. How hard could that be? Ah, all right, trying to find somebody. And all the people they ask, they didn't distinguish between, they just said yes, put it up. Right. They didn't the idea of lending is just such a weird, clunky idea that whenever they said yes, they would just want it completely available for downloadable PDFs. So they changed their their permission thing to just say completely available. So I said, Okay, let's do old ones you didn't get asked asked for as as controlled digital lending. And I it was interesting to see this University Press director having one foot in the university world remembering what they were there for. And then also in the publishing world, which has just become ideological and maximalist. And they she kind of sways back and forth in my perception. And, and so actually, the university presses are pretty much now universally against the Internet Archive where they were for it before, because we got a million dollars of funding from Arcadia to go and digitize all their backwards and make them into ePubs for them. And so there's a real think mind problem that's going on. It's kind of a lot of people, especially in university presses, went into the business wanting to actually do something good. And now they're in this sort of try to keep people from reading things at all costs, sort of business, and it's really not a healthy place to be. And the the lending thing, for 10 years was a perfectly kind of, okay, minimum of bringing access. So it's just, you know, one thing I can bring to this conversation, I think, is the reality of what's actually happened as we libraries have been doing this. Again, hundreds of libraries are doing this. And it's working. But sort of the idealogue component of the publishing industry is having too much of a day.
Jason Schultz 44:22
Yeah. Also, I'm curious how this works in relation to kind of the home taping fear of like, you know, 80s Fear of home taping with cassette tapes, and then kind of the same movements that are happening with MP threes and now in you know, streaming music, what kind of connections or differences you see, you know, because there's obviously been a ton of litigation relating to streaming music and in every country almost, I'm curious to see you know, what's, what's similar and kind of what's different between kind of music and books in the music
Brewster Kahle 44:59
space? You generally had to kind of download your mp3 to run it on your iPod or mp3 Player of the time. And what at least the control digital lending thing is really controlled. So I think the library Genesis might be the kind of that's the kind of Napster and the control digital lending is, is more like a really controlled world. So I think that we're kind of way past that. But the book guys just never joined the internet. They basically sort of set it out. And they kind of stayed in their little Kindle world, because Amazon was perfectly happy to go and box those guys into the slaughterhouse. Right. I mean, it's it's going and then just replacing them with more and more Amazon imprints. I mean, and I the idea of these tech companies, basically becoming media companies, when Amazon bought MGM. Right, so that's sort of conglomeration of the full stack control, I think we'll see more of as, as time goes on,
Jason Schultz 46:07
it went interesting, big. So simultaneously to this policy around CDL. There the is the antitrust lawsuit against the publishers, right and about pricing that's going on right now in DOJ. And the testimony has been amazing. I mean, we're really interested in what's going on in how like messed up the US publishing industry is some of the testimony that's coming out. I think, with the other day of the year, like 2% of the revenues go to Marketing of its super small number, and that most major publishing houses are still relying on authors themselves to do all the promotion, you would know anything about that, you know, the author's in the butt, and that there. So there's this real question and think about this today, I must think in some ways, like digital culture, and technology has caused an identity crisis for lots of people in lots of industries and lots of organizations, it just seems to be something that, you know, is part of how we're all trying to deal with it. But for the publishing industry, I think there's a identity crisis around what is the role like, what do they actually do in the value chain right there in the record, and in some ways, like the record industry in the movie industry went through this, and they're still going through this, but they got more comfortable with it, I think earlier on because of things like Napster and Grokster, and Victorian, whatever I'm where, and it resolved it to some degree. I mean, you know, it's not perfect, but I think you see things like Spotify and Amazon Prime streaming, and Netflix and Disney plus whatever, because they've gotten to a place where they least temporarily, there's some sort of equilibrium or stability to what they will. And they still know that millions of people are torrenting movies and music, but like they've got their thing, right. The publishers I think, are still in this like, really weird space of not having an identity that they're comfortable with in the digital economy. Right. And so I think these lawsuits are an attempt to grasp onto something, right? This is the identity we have, we can still control this stuff, we still know what's going on here. And without even including, from what I can tell any authors in the conversation, I mean, I guess the Authors Guild, but I always question whether that whether there are any authors or it is a guild, like sort of organization to me, but there's always a few authors, right, that are very prominent, but whether it represents authors more generally. And that's what we have organizations like the authors Alliance, that's, that's a different approach, right? More about access, but I mean, I think the commercial trade publishers really are uncertain of where they are in the value chain, and they're trying to define it. But, you know, a little bit of its talent acquisition, for sure, some of its design and production, but like a lot of the production and distribution are outsourced now. And then marketing. If it's not that, then the question is like, what is the role and so, you know, I what I worry about, and it may just be that where there is, in some of these other industries, you have these basically, organizations which are fully dedicated to simply collective rights management, right, like you have ASCAP BMI type models, right, where all they do is serve as an aggregator for collecting money, and then, you know, kind of enforcing selectively to sort of deter people from not paying, right. And I just wonder if we're headed there or not.
Brewster Kahle 49:19
I don't know if we're going towards Netflix of books, right? I mean, these are Commedia conglomerates that have sort of the same MBAs at the top that are going saying, Well, if it worked in this media type, it'll work and that media type. And books are really quite different. It's how we think things through we want radical books, we want books by single authors, we want diverse, we want a broad range of books. We want books from the 20th century to be available. And that's really not if you're looking at your Netflix subscription and things blinking on and off of it. It's just not at all how that type of services evolving. And I so I think we really if we're we need to go and get 20th century materials online. And to people. Otherwise, we can see things at the democracy level come on glued. And we've it's not a sort of a oh, just you know who's getting paid. It's like, no, it's how our whole system works. And we basically taken the 20th century away from a generation. And they'll, they'll stop using it, they'll they'll just be interpreted through whatever it crap they can get on the net. And we, so we've been doing interlibrary loan off of our periodicals and our book collections. And the bump in terms of when we get the most requests are things from the 1990s. So that's sort of the bump. So libraries are used for this fairly different purpose than just the sort of milking the most that we can get out of the Netflix and let's turn it off at the end of the month. So we drive up some somewhere, you know. So that's we books are different. And unfortunately don't have, we have very few very large corporations trying to determine the future of books for all. And that is not a great place to be.
Jason Schultz 51:14
So we're coming up against the in the hour. So I'm gonna give Rebecca in the back. One last comment. And then there's anyone else? Raise your hand and then we'll wrap up.
Unknown Speaker 51:23
Yeah. So this segues into what Bruce was just saying, I think we're in a lending scare that is a little bit evocative of the Red Scare with communism. And I think that's the broader context of understanding it, how big tech is also really controlling this conversation. Amazon has been whispering in publishers years for a couple of years now that lending to libraries, licensing their books for lending to libraries is killing their business. Now, Amazon is the only one that has the data on ebook sales, which should Gods fiercely and won't tell anyone. So really difficult to figure that out. Libraries control that lending data, all in really siloed as well. So it's really difficult to get that, but publishers a genuinely terrified, because it is an extremely difficult market. But partly because it's just wildly irrational, partly because of things like bombers cost of these and so on. But I think that those deliberate efforts by Amazon to fanned the flames of fear against lending in that context is also spilling over into this one. And the lack of data and transparency just makes it really, really difficult to fight like you can't fight an enemy that you can't see. And Amazon is deliberately obscuring the reality here. And like there's a bunch of us like trying to do some work to get transparency around that. But this is, I think, a really important place for intervention, to be able to actually figure out what's going on. And to reassure publishers, like I understand why they're scared, right? If I was, okay, I did accidentally started publishing house last year. But if I had to rely on this, to make a living, I would be terrified as well. I think that's a really good place for us to be thinking about putting some additional resources. And thinking about bridging that fear gap.
Brewster Kahle 53:10
Why libraries are really interested in buying things, where it's a $12 billion a year industry, they're interested in buying things, they see what's going on, it's a very smart population that may not be very empowered, but it's a smart population. And if you're a publishing house would be up for selling ebooks, I think there are a lot of libraries that would be very interested in buying them, even if they can't quite figure out what to do right now with them, except go and support you. I think Canada also has a technical as a legal solution that I would like to propose. It's been reaffirmed twice in the Canadian Supreme Court. And they call it technical neutrality. Technical neutrality. I've never heard this term, but it's bouncing around in Canada, it's basically what you could do with the old technology you can do with the new technology, if you'd like take your LP, and make a cassette out of it. You can do you're allowed to do that. And you're allowed to have the same rights to what you can do with the cassette version that you had with your LP version, technical neutrality. I think that's a path out of this and is worth sort of championing in the same sense that we champion net neutrality. I think we've kind of been losing on that front. But, but let's win on this technical neutral neutrality front. I really appreciate your coming today. And the Internet Archive is very interested in working with students with clinics with folks we have very interesting issues that are coming around. And the archive was really thankful for the work of NYU, and others and it's just up at Harvard's Berkman Center. And so let's it can the Internet Archive be A transparent version that can give actual data of like how do people actually use these materials were much more open and community oriented than sort of the.com sector.
Jason Schultz 55:14
All right, well join me in thanking Brewster.
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