Author Archives: Authors Alliance

Announcing the “Text and Data Mining: Demonstrating Fair Use” Project

Posted December 22, 2022

We’re very pleased to announce a new project for 2023, “Text and Data Mining: Demonstrating Fair Use,” which is generously supported by the Mellon Foundation. The project will focus on lowering and overcoming legal barriers for researchers who seek to exercise their fair use rights, specifically within the context of text data mining (“TDM”) research under current regulatory exemptions.

Fair use is one of the primary legal doctrines that allow researchers to copy, transform, and analyze modern creative works—almost all of which are protected by copyright—for research, educational, and scholarly purposes. Unfortunately, in practice, not everyone is able to use this powerful right. Researchers today face the challenge that fair use is often overridden by a complex web of copyright-adjacent laws. One major culprit is Section 1201 of the Digital Millennium Copyright Act (“DMCA”), which imposes significant liability for users of copyrighted works who circumvent technical protection measures (e.g., content scramble for DVDs), unless those users comply with a series of specific exemptions to Section 1201. These exemptions are lengthy and complex, as is the process to petition for their adoption or renewal, which recurs every three years.

Text data mining is a prime example of work that demonstrates the power of fair use, as it allows researchers to discover and share new insights about how modern language and culture reflect on important issues ranging from our understanding of science to how we think about gender, race, and national identity. Authors Alliance has worked extensively on supporting TDM work in the past, including by successfully petitioning the Copyright Office for a DMCA exemption to allow researchers to break digital locks on films and literary works distributed electronically for TDM research purposes, and this project builds on those previous efforts.

The Text Data Mining: Demonstrating Fair Use project has two goals in 2023:

 1) To help a broader and more diverse group of researchers understand their fair use rights and their rights under the existing TDM exemption through one-on-one consultations, creating educational materials, and hosting workshops and other trainings; and

2) To collect and document examples of how researchers are using the current TDM exemption, with the aim of illustrating how the TDM exemption can be applied and highlighting its limitations so that policymakers can improve it in the future.

We’ll be working closely with TDM researchers across the United States, as well organizations such as the Association for Computers and the Humanities, and will be actively exploring opportunities to work with others. If you have an interest in this project, we would love to hear from you! 

About The Andrew W. Mellon Foundation

The Andrew W. Mellon Foundation is the nation’s largest supporter of the arts and humanities. Since 1969, the Foundation has been guided by its core belief that the humanities and arts are essential to human understanding. The Foundation believes that the arts and humanities are where we express our complex humanity, and that everyone deserves the beauty, transcendence, and freedom that can be found there. Through our grants, we seek to build just communities enriched by meaning and empowered by critical thinking, where ideas and imagination can thrive. Learn more at mellon.org.

Please Support Authors Alliance This Holiday Season!

Posted December 6, 2022

Dear Members and Allies, 

Since 2014, you have helped Authors Alliance fulfill our mission to advance the interests of authors who want to make the world a fairer and more just place, to spark new conversations, and to be read by wide audiences. But our continued existence is not guaranteed, and we need your help to continue to advocate for authors who write to be read. Each year, we launch a year-end fundraising campaign and this year, we need your support more than ever.

In 2022, we continued to speak out in favor of laws and policies that empower authors to reach wide audiences, with a new focus on and expansion of our advocacy work. We submitted amicus briefs in five separate federal lawsuits (our most ambitious amicus docket yet!), defending authors’ ability to exercise their fair use rights at home and abroad, create transformative derivative works, reach readers via controlled digital lending by libraries, and more. We helped authors speak out against publishers whose actions weren’t aligned with their interests, magnifying author voices in the face of a sudden loss of access to their works. We also continued to partner with allied organizations to urge Congress to reject maximalist copyright policies, weighed in on several Copyright Office rulemakings, and much more. 

We’re proud of our many accomplishments in 2022, and cannot wait for you to see what we have in store for 2023. You can expect a brand new guide to legal issues related to writing about real people, a wealth of advocacy work related to strengthening authors’ ability to engage in text data mining, and more amicus briefs to represent your interests in the courts.

Please consider making a tax-deductible donation today to help us carry on our work in 2023. Every contribution enables us to do our part to help you keep writing to be read!

Please support Authors Alliance today!

Book Talk: Data Cartels

Posted November 11, 2022

We’re excited to invite you to join us for another book talk, co-sponsored with Internet Archive, with author Sarah Lamdan about her book Data Cartels.

Join SPARC’s Heather Joseph for a chat with author Sarah Lamdan about the companies that control & monopolize our information.

Book Talk: Data Cartels with Sarah Lamdan & Heather Joseph
Co-sponsored by Internet Archive & Authors Alliance
Wednesday, November 30 @ 10am PT / 1pm ET
Register now for the virtual discussion.
Purchase Data Cartels from The Booksmith

In our digital world, data is power. Information hoarding businesses reign supreme, using intimidation, aggression, and force to maintain influence and control. Sarah Lamdan brings us into the unregulated underworld of these “data cartels”, demonstrating how the entities mining, commodifying, and selling our data and informational resources perpetuate social inequalities and threaten the democratic sharing of knowledge.

Sarah Lamdan is Professor of Law at the City University of New York School of Law. She also serves as a Senior Fellow for the Scholarly Publishing and Academic Resources Coalition, a Fellow at NYU School of Law’s Engelberg Center on Innovation Law and Policy.

Heather Joseph is a longtime advocate and strategist in the movement for open access to knowledge. She is the Executive Director of SPARC, an international alliance of libraries committed to creating a more open and equitable ecosystem for research and education. She leads SPARCs policy efforts, which have produced national laws and executive actions supporting the free and open sharing of research articles, data and textbooks, and has worked on international efforts to promote open access with organizations including the United Nations,, The World Bank, UNESCO, and the World Health Organization.

Book Talk: Data Cartels with Sarah Lamdan & Heather Joseph
Co-sponsored by Internet Archive & Authors Alliance
Wednesday, November 30 @ 10am PT / 1pm ET
Register now for the virtual discussion.

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

Posted November 4, 2022

Yesterday there was a pretty interesting class action lawsuit filed against Github and Microsoft. The suit is about Github’s Copilot service, which it advertises as “Your AI pair programmer.” As described by Github, Copilot is  “trained on billions of lines of code” and “turns natural language prompts into coding suggestions across dozens of languages.” The suit focuses on Github’s reuse of code deposited with it by programers, mostly under open source licenses, which Github has used to train the Copilot AI.  Those licenses generally allow reuse but commonly come with strings attached–such as requiring attribution and relicensing the new work under the same or similar terms. The class action asserts, among other things, that Github hasn’t followed those terms because it hasn’t attributed the source adequately and has removed copyright-relevant information. 

Sounds interesting, but you might  be wondering why we care about this lawsuit. For a few reasons: one, it raises some  important questions about the extent to which researchers can use AI to train and produce outputs based on datasets of copyrighted materials, even materials thought generally “safe” because they’re available under open licenses. As the suit highlights, materials that are openly licensed aren’t without any restrictions (most include attribution requirements), but when those materials are aggregated and used to craft new outputs, it can be seriously complicated to find the right way to attribute all the underlying creators. If this suit raises the barrier to using such materials, it could pose real problems for many existing research projects. It could also result in further narrowing of what datasets are likely to be used by AI researchers–  resulting an even smaller group of materials that include what law professor Amanda Levendowski refers to as “biased, low-friction data” (BLFD), which can lead to some pretty bad and biased results. How and when open license attribution requirements apply is important for anyone doing research with such materials in aggregate. 

Second, the suit at least indirectly implicates some of the same legal principles that authors working on text-data mining projects rely on. We’ve argued (successfully, before the U.S. Copyright Office) that such uses are generally not infringing–-particularly for research and educational purposes-–because fair use allows for it. Several others, such as Professors Michael Carroll and Matthew Sag, have made similar arguments. Of course, Github Copilot has some meaningful differences from text-data mining for academic research; e.g., it is producing textual outputs based on the underlying code for a commercial application. But the fair use issue in this case could have a direct impact on other applications.

Interestingly, the Github Copilot suit doesn’t actually allege copyright infringement, which is how fair use would most naturally be raised as a defense. Instead, the plaintiffs, as class representatives, make two claims that could implicate a fair use defense: 1) a contractual claim Github has violated the open source license covering the underlying code, which generally require attribution among other things; 2) a claim Github has violated Section 1202 of the Digital Millennium Copyright Act by removing copyright management information (“CMI”) (e.g., copyright notice, titles of the underlying works). 

The complaint attempts to avoid fair use issue, asserting that ”the Fair Use affirmative defense is only applicable to Section 501 copyright infringement. It is not a defense to violations of the DMCA, Breach of Contract, nor any other claim alleged herein.” The plaintiffs may well be trying to follow the playbook of another recent open source licensing case, Software Freedom Conservancy v. Vizio, which successfully convinced a federal court that its breach of contract claims, based on an alleged breach of the the GPLv2 license, should be considered separate and apart from a copyright fair use defense.

 This suit is a little different though. For one, at least five of the eleven licenses at issue explicitly recognize the applicability of fair use; for example, the GNU General Public License version 3 provides that “This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.” It would seem more of a challenge to convince a court that a fair use defense doesn’t matter when almost half of the licenses explicitly say it does.  Likewise, while the text of Section 1202 doesn’t explicitly allow for a fair use defense, its restrictions are only applicable to the removal of CMI when it is done “without the authority of the copyright owner or the law.” The plaintiffs claim that fair use isn’t a defense to allegations of a Section 1202 violation, but thats far from clear, and it may be that removal of information pursuant to a valid fair use claim should qualify as removal with the “authority . . . of the law.” 

The lawsuit is a class action, so it faces some special hurdles that a typical suit would not. For example, the plaintiffs must demonstrate that they can adequately represent the interests of the class, which it has defined as: 

All persons or entities domiciled in the United States that, (1) owned an interest in at least one US copyright in any work; (2) offered that work under one of GitHub’s Suggested Licenses; and (3) stored Licensed Materials in any public GitHub repositories at any time between January 1, 2015 and the present (the “Class Period”).  


That could pose a challenge given that it seems likely that at least a portion–if not a sizable portion–of those who contributed code to Github under those open licenses may be more sympathetic to Github’s reuse than the claims of the plaintiffs. In Authors Guild v. Google, another class action suit involving mass copying to facilitate computer-aided search and outputs like snippet view in Google Books, similar intra-class conflicts posed a challenge to class certification (including objections we raised on behalf of academic authors). The Github Copilot suit also includes a number of other claims that mean it could be resolved without addressing the copyright and licensing issues noted above. For now, we’ll monitor the case and update you on outcomes relevant to authors.

Community Call : Writing About Real People Legal Guide

Photo by Brett Jordan on Unsplash

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

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

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

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

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

Authors speak out: an update on the Wiley ebook situation

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

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

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

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

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

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

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

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

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

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

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

Wiley Removes Over 1,300 Ebooks from Academic Library Collections 

Posted October 7, 2022
chair and empty bookshelf” by Mark Z. is licensed under CC BY-NC 2.0.

Last month, publisher John Wiley & Sons made headlines when it made the controversial decision to abruptly remove over 1,300 ebooks from academic library collections. It did so by removing these titles from ProQuest Academic Complete, a large collection of ebooks that many libraries subscribe to. Earlier this week, Wiley made headlines again when it announced it was temporarily restoring access in the face of public pressure. 

As has unfortunately been typical with other changes in how publishers work (or refuse to work) with libraries, authors of these books were left in the dark, with little say on the decision. We have heard from many authors who believe, as we do, that libraries play an extraordinarily important role in preserving and providing access to the materials we write, in all formats, and we believe they should be able to purchase access on reasonable terms so they can fulfill their missions.  We’re writing this post to highlight the Wiley situation and outline some ways that authors can make their voices heard. 

The Wiley Ebook Situation

Wiley’s move was particularly shocking since the removal of access coincided with the beginning of the academic term. Countless students who were relying on library access to textbooks they needed for their academic courses lost this access exactly when these texts were most needed. It is increasingly common for publishers of academic texts like these to refuse to sell electronic copies to libraries at all, which seems to be the tactic Wiley was pursuing here, leaving these students with no low cost alternative (and in fact, Wiley reportedly refuses to sell textbooks to libraries at all, in either digital or print format). This left instructors scrambling to find new texts to assign, redesign syllabi, and otherwise adopt their courses to a loss of access to the Wiley texts, at a moment when their attention should have been focused on teaching and welcoming students. 

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

Authors Alliance began working with #ebookSOS to raise awareness of this issue among authors whose works were removed from library collections in an effort to encourage Wiley to reverse its decision and provide assurances that it will not take measures like these in the future. The authors we’ve heard from want their books to be read, to serve learning, and to be used to share knowledge with the world. Some of these authors view Wiley’s decision as a betrayal, and indeed, it is hard to square with Wiley’s asserted commitment to “​​[e]nabling discovery by supporting access to knowledge and fueling the engines of research.”

Earlier this week, Wiley relented. It announced that it had decided to temporarily reverse course, restoring access to the removed texts until June 2023, when they will once again be removed. Wiley apologized for the “disruption” the move caused to students, libraries, and instructors, admitting that it caught them off guard. But while this may ease the burden on instructors and students for now, librarians have resoundingly found the measure to be insufficient. Temporarily restoring access to these particular texts does not solve the fundamental problem that large publishers like Wiley can—and do—unilaterally and without warning remove books from digital library shelves, even if their motive is purely to increase their own profits. We’ve continued to hear from authors who have strong reservations both about Wiley’s decision and how it went about making it. If you are an author published by Wiley and have thoughts about its decision to remove access to these ebooks, we would love to hear from you:  Please write to us at info@authorsalliance.org

What Authors Can Do

Unfortunately, this is not the first time that a publisher has acted unilaterally to make its ebooks less accessible to the detriment of readers and authors. Trade publisher MacMillan at one point announced it would employ a two-week embargo before libraries could acquire newly published titles as ebooks. Similarly, rising ebook prices during the pandemic hurt many students who relied on these works to learn. Yet, as Wiley’s response to the outcry following its announcement shows, a concerted campaign to pressure these publishers can have results. For example, MacMillan ultimately abandoned its plans for an ebook embargo following a boycott of all its ebook titles by various library systems. 

Most authors have little say in how publishers distribute their works. Publishing contracts typically give publishers broad discretion to determine when, how, and on what terms authors’ books are sold. While it is understandable that authors will not be involved in every decision about distribution, authors have placed trust in publishers that they will make reasonable decisions. So, what can authors do? 

First, as the Wiley ebook situation has shown, authors’ voices do matter. If you have concerns about your book being available to libraries, speak out! One reason that Authors Alliance exists is to help amplify your voice and help publishers understand your views on how their legal and policy decisions affect your interests in making your books available to the world.  If you’re wondering about how we might help, please get in touch—we’d love to hear from you. Second, authors do have an opportunity to influence how their books are shared when negotiating their publishing contracts. There are no guarantees that a publisher will accept your proposed contract language (and we suspect most will be resistant). But given that several publishers have recently demonstrated their unwillingness to make reasonable distribution decisions, it seems to us equally reasonable to ask for contractual assurances that they will continue to sell your book to libraries on reasonable terms, in all formats. For some language to serve as a starting point, #ebooksos has shared their model contract language for authors, here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Authors for Libraries

Posted September 29, 2022
Photo by Patrick Fore on Unsplash

Last month in our newsletter to members (join here so you don’t miss future news!), we shared a call to sign on to an open letter, organized by Fight for the Future, on behalf of authors in support of libraries. We’re really pleased to announce that this letter is now posted online and open for more signatures here. We encourage you to read it and sign if you support its message.

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

From our perspective, libraries are critically important partners in making sure that authors’ works are read and preserved. As the letter explains, “Libraries are a fundamental collective good.” The letter’s signatories “are disheartened by the recent attacks against libraries being made in our name by trade associations such as the Association of American Publishers and the Publishers Association: undermining the traditional rights of libraries to own and preserve books, intimidating libraries with lawsuits, and smearing librarians.” 

Unfortunately, and predictably, the letter has received almost instant condemnation from the Authors Guild, the AAP (which, you might recall, has asserted that it has acted as legal counsel for the publishers who brought the Hachette v. Internet Archive lawsuit), and other related groups. They assert: 1) that authors don’t really understand what the Internet Archive controlled digital lending lawsuit is about, and if they did they wouldn’t support it,  and 2) that “real libraries” don’t engage in activities like the controlled digital lending that is the subject of the Internet Archive lawsuit. 

Neither argument holds weight. As part of our own efforts to support controlled digital lending in this case, Authors Alliance conducted a survey of our members and other authors. Responses showed that many authors do support CDL, and support it strongly. Additionally, many libraries across the country practice CDL: it is far from a practice unique to the Internet Archive.

The RAP Act: Protecting Creative Expression in Court 

Posted September 14, 2022
Rap on Trial: A Legal Guide for Attorneys

One of Authors Alliance’s long standing goals is to support authors’ freedom of expression. As we’ve recently highlighted, sometimes challenges to those rights come from unusual sources in the law. 

This week we caught up with Jack Lerner, Clinical Professor of Law and Director of the Intellectual Property, Arts, and Technology Clinic at UC Irvine Law. Jack is the co-author, with Professor Charis Kubrin, of Rap on Trial: A Legal Guide for Attorneys, a resource which aims to address an alarming trend of prosecutors and courts treating rap lyrics not as a creative and artistic endeavor, but as confessions of illegal behavior and evidence of knowledge, motive, or identity with respect to an alleged crime. As his co-author Charis Kubrin explains, “putting rap on trial has significant implications for how we define creative expression as well as for free speech and the right of all Americans to receive a fair trial.”

Jack’s work and that of several aligned groups has now resulted in three pieces of proposed legislation–one federal bill called the “Restoring Artistic Protection Act” (RAP Act), and two similar bills at the state level in New York and California–that would amend the rules of evidence to make it more difficult for prosecutors to introduce a defendant’s creative or artistic expression as evidence against a defendant in a criminal case. Authors Alliance supports these efforts. The California bill is now sitting on Governor Newsom’s desk, and we have written a letter to the Governor explaining why this legislation is important not just to rap artists, but to all authors and creators, and expressing our hope that it becomes law. Governor Newsom has until September 30th to sign or veto the bill. If he neither signs nor vetoes it, the bill will become law, going into effect in January 2023. 

These bills–while addressing discriminatory use of rap lyrics against defendants–are designed to apply broadly to protect many other creators, including authors, from having their creative expressions used against them in court. The RAP Act, for example, states that as a general matter, ”evidence of a defendant’s creative or artistic expression, whether  original or derivative, is not admissible against such defendant in a criminal case.” It allows for limited exceptions, such as when the lyrics make a specific reference to the alleged crime, but nonetheless provides strong protections for creative expression. The Act goes on to define “creative or artistic expression” broadly, as “the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements or symbols, including music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.’’

We recently had the opportunity to sit down with Jack and discuss with him the background, and future, of this legislation: 

Tell me about what motivated this effort? 

Jack: The issues motivating the RAP Act have been going on for a long time. While it’s almost unthinkable that someone would use the music of Johnny Cash (“I shot a man in Reno just to watch him die”) or Eric Clapton (who sang “I Shot the Sheriff,” covering Bob Marley) as evidence against them in a trial, rap lyrics have been used again and again against rappers. Conservatively, scholars have identified over 500 cases in which prosecutors have used rap lyrics as evidence against an artist in court.

The admission of rap lyrics can be extremely detrimental to defendants. Over 25 years of research has shown that the mere association with rap can create a strong negative bias in jurors, who will take the lyrics as more literal, more violent, and more threatening, as compared to lyrics from other genres. All you have to do is label it “rap.” 

Can you tell me about the origins of these bills? 

The work on this issue began almost a decade ago. Charis Kubrin, who co-authored the Rap on Trial Legal Guide, Charis Kubrin, has been writing about this issue since 2005, and has since conducted astonishing research demonstrating a massive risk of bias when rap lyrics are introduced. When she began to hear regularly from defense attorneys needing help with this issue, we conceived of developing the Guide. Over three years later, with the help of dozens of law students in the IP, Arts, and Tech Clinic at UCI Law, we published the Guide along with a Brief Bank and Case Compendium. 

What has been remarkable is that as we surfaced these issues, lawmakers in New York and California found out about them on their own and took action. And proponents from both the entertainment industry and the criminal justice movement have been working with them. The New York bill became the basis for the current federal bill, and the California bill is now on Governor Newsom’s desk for his signature. 

How do these bills actually work? 

These bills raise the bar for introducing rap lyrics as evidence. The federal bill, for example, would require a prosecutor to establish by “clear and convincing evidence” that the defendant intended the lyrics to have a literal meaning or that the expression refers to the “the specific facts of the crime alleged.”

The California bill is a little bit different. It says that the court should start with the presumption that creative expression is not probative, and requires that prosecutors have to overcome that presumption by showing that the lyrics in question meet a set of criteria for introduction as evidence, such as that they match the specific elements of the crime, or were written close in time to the alleged crime. Notably, the court is required to look at whether the introduction will introduce bias, and must look at all the research I mentioned on the issue of negative bias associated with rap. 

How do these bills affect other creators? 

These bills apply broadly, protecting artists, authors and all other types of creators. All the cases we’ve identified in our research have been focused on the uniquely negative use of rap lyrics against defendants–but you can see the importance of these protections for authors and other creators, especially in the current political climate. For example, with book censorship taking hold in a variety of places, it’s easy to imagine an aggressive prosecutor trying to use a controversial author’s fiction writing as evidence of criminal activity.  

What can authors do? 

The federal RAP Act has been co-sponsored by representatives Bowman (NY), Johnson (GA), Maloney (NY), and Jayapal (WA). If you support the bill, you should contact your representative expressing your support. 


If you are in California, AB 2799 is currently on Governor Newsom’s desk awaiting his signature to become law. You can contact his office to express your support and encourage him to sign the bill.