Author Archives: Dave Hansen

Introducing the Authors Alliance’s First Zine: Can Authors Address AI Bias?

Posted May 31, 2024

This guest post was jointly authored by Mariah Johnson and Marcus Liou, student attorneys in Georgetown’s Intellectual Property and Information Policy (iPIP) Clinic.

Generative AI (GenAI) systems perpetuate biases, and authors can have a potent role in mitigating such biases.

But GenAI is generating controversy among authors. Can authors do anything to ensure that these systems promote progress rather than prevent it? Authors Alliance believes the answer is yes, and we worked with them to launch a new zine, Putting the AI in Fair Use: Authors’ Abilities to Promote Progress, that demonstrates how authors can share their works broadly to shape better AI systems. Drawing together Authors Alliance’s past blog posts and advocacy discussing GenAI, copyright law, and authors, this zine emphasizes how authors can help prevent AI bias and protect “the widest possible access to information of all kinds.” 

As former Copyright Register Barbara Ringer articulated, protecting that access requires striking a balance with “induc[cing] authors and artists to create and disseminate original works, and to reward them for their contributions to society.” The fair use doctrine is often invoked to do that work. Fair use is a multi-factor standard that allows limited use of copyrighted material—even without authors’ credit, consent, or compensation–that asks courts to examine:

(1) the purpose and character of the use, 

(2) the nature of the copyrighted work, 

(3) the amount or substantiality of the portion used, and 

(4) the effect of the use on the potential market for or value of the work. 

While courts have not decided whether using copyrighted works as training data for GenAI is fair use, past fair use decisions involving algorithms, such as Perfect 10, iParadigms, Google Books, and HathiTrust favored the consentless use of other people’s copyrighted works to create novel computational systems. In those cases, judges repeatedly found that algorithmic technologies aligned with the Constitutional justification for copyright law: promoting progress.

But some GenAI outputs prevent progress by projecting biases. GenAI outputs are biased in part because they use biased, low friction data (BLFD) as training data, like content scraped from the public internet. Examples of BLFD include Creative Commons (CC) licensed works, like Wikipedia, and works in the public domain. While Wikipedia is used as training data in most AI systems, its articles are overwhelmingly written by men–and that bias is reflected in shorter and fewer articles about women. And because the public domain cuts off in the mid-1920s, those works often reflect the harmful gender and racial biases of that time. However, if authors allow their copyrighted works to be used as GenAI training data, those authors can help mitigate some of the biases embedded in BLFD. 

Current biases in GenAI are disturbing. As we discuss in our zine, word2vec is a very popular toolkit used to help machine learning (ML) models recognize relationships between words–like women as homemakers and Black men with the word “assaulted.” Similarly, OpenAI’s GenAI chatbox ChatGPT, when asked to generate letters of recommendation, used “expert,” “reputable,” and “authentic” to describe men and  “beauty,” “stunning,” and “emotional” for women, discounting women’s competency and reinforcing harmful stereotypes about working women. An intersectional perspective can help authors see the compounding impact of these harms. What began as a legal framework to describe why discrimination law did not adequately address harms facing Black women, it is now used as a wider lens to consider how marginalization affects all people with multiple identities. Coined by Professor Kimberlé Crenshaw in the late 1980s, intersectionality uses critical theory like Critical Race Theory, feminism, and working-class studies together as “a lens . . . for seeing the way in which various forms of inequality often operate together and exacerbate each other.” Contemporary authors’ copyrighted works often reflect the richness of intersectional perspectives, and using those works as training data can help mitigate GenAI bias against marginalized people by introducing diverse narratives and inclusive language. Not always–even recent works reflect bias–but more often than might be possible currently.

Which brings us back to fair use. Some corporations may rely on the doctrine to include more works by or about marginalized people in an attempt to mitigate GenAI bias. Professor Mark Lemley and Bryan Casey have suggested “[t]he solution [to facial recognition bias] is to build bigger databases overall or to ‘oversample’ members of smaller groups” because “simply restricting access to more data is not a viable solution.” Similarly, Professor Matthew Sag notes that “[r]estricting the training data for LLMs to public domain and open license material would tend to encode the perspectives, interests, and biases of a distinctly unrepresentative set of authors.” However, many marginalized people may wish to be excluded from these databases rather than have their works or stories become grist for the mill. As Dr. Anna Lauren Hoffman warns, “[I]nclusion reinforces the structural sources of violence it supposedly addresses.”

Legally, if not ethically, fair use may moot the point. The doctrine is flexible, fact-dependent, and fraught. It’s also fairly predictable, which is why legal precedent and empirical work have led many legal scholars to believe that using copyrighted works as training data to debias AI will be fair use–even if that has some public harms. Back in 2017, Professor Ben Sobel concluded that “[i]f engineers made unauthorized use of copyrighted data for the sole purpose of debiasing an expressive program, . . . fair use would excuse it.” Professor Amanda Levendowski has explained why and how “[f]air use can, quite literally, promote creation of fairer AI systems.” More recently, Dr. Mehtab Khan and Dr. Alex Hanna  observed that “[a]ccessing copyright work may also be necessary for the purpose of auditing, testing, and mitigating bias in datasets . . . [and] it may be useful to rely on the flexibility of fair use, and support access for researchers and auditors.” 

No matter how you feel about it, fair use is not the end of the story. It is ill-equipped to solve the troubling growth of AI-powered deepfakes. After being targeted by sexualized deepfakes, Rep. Ocasio-Cortez described “[d]eepfakes [as] absolutely a way of digitizing violent humiliation against other people.” Fair use will not solve the intersectional harms of AI-powered face surveillance either. Dr. Joy Buolamwini and Dr. Timnit Gebru evaluated leading gender classifiers used to train face surveillance technologies and discovered that they more accurately classified males over females and lighter-skinned over darker-skinned people. The researchers also discovered that the “classifiers performed worst on darker female subjects.” While legal scholars like Professors Shyamkrishna Balganesh, Margaret Chon, and Cathay Smith argue that copyright law can protect privacy interests, like the ones threatened by deepfakes or face surveillance, federal privacy laws are a more permanent, comprehensive way to address these problems.

But who has time to wait on courts and Congress? Right now, authors can take proactive steps to ensure that their works promote progress rather than prevent it. Check out the Authors Alliance’s guides to Contract Negotiations, Open Access, Rights Reversion, and Termination of Transfer to learn how–or explore our new zine, Putting the AI in Fair Use: Authors’ Abilities to Promote Progress.

You can find a PDF of the Zine here, as well as printer-ready copies here and here.

Book Talk: Attack from Within by Barbara McQuade

This event is canceled due to a scheduling issue. We will repost when it is rescheduled.

Join us for a VIRTUAL book talk with legal scholar BARBARA McQUADE on her New York Times bestseller, ATTACK FROM WITHIN, about disinformation’s impact on democracy. NYU professor and author CHARLTON McILWAIN will facilitate our discussion.


“A comprehensive guide to the dynamics of disinformation and a necessary call to the ethical commitment to truth that all democracies require.”

Timothy Snyder, author of the New York Times bestseller On Tyranny

American society is more polarized than ever before. We are strategically being pushed apart by disinformation—the deliberate spreading of lies disguised as truth—and it comes at us from all sides: opportunists on the far right, Russian misinformed social media influencers, among others. It’s endangering our democracy and causing havoc in our electoral system, schools, hospitals, workplaces, and in our Capitol. Advances in technology including rapid developments in artificial intelligence threaten to make the problems even worse by amplifying false claims and manufacturing credibility.

In Attack from Within, legal scholar and analyst Barbara McQuade, shows us how to identify the ways disinformation is seeping into all facets of our society and how we can fight against it. The book includes:

  • The authoritarian playbook: a brief history of disinformation from Mussolini and Hitler to Bolsonaro and Trump, chronicles the ways in which authoritarians have used disinformation to seize and retain power.
  • Disinformation tactics—like demonizing the other, seducing with nostalgia, silencing critics, muzzling the media, condemning the courts; stoking violence—and why they work.
  • An explanation of why America is particularly vulnerable to disinformation and how it exploits our First Amendment Freedoms, sparks threats and violence, and destabilizes social structures.
  • Real, accessible solutions for countering disinformation and maintaining the rule of law such as making domestic terrorism a federal crime, increasing media literacy in schools, criminalizing doxxing, and much more.

Disinformation is designed to evoke a strong emotional response to push us toward more extreme views, unable to find common ground with others. The false claims that led to the breathtaking attack on our Capitol in 2021 may have been only a dress rehearsal. Attack from Within shows us how to prevent it from happening again, thus preserving our country’s hard-won democracy.


BARBARA McQUADE is a professor at the University of Michigan Law School, where she teaches criminal law and national security law. She is also a legal analyst for NBC News and MSNBC. From 2010 to 2017, McQuade served as the U.S Attorney for the Eastern District of Michigan. She was appointed by President Barack Obama, and was the first woman to serve in her position. McQuade also served as vice chair of the Attorney General’s Advisory Committee and co-chaired its Terrorism and National Security Subcommittee.

Before her appointment as U.S. Attorney, McQuade served as an Assistant U.S. Attorney in Detroit for 12 years, including service as Deputy Chief of the National Security Unit. In that role, she prosecuted cases involving terrorism financing, foreign agents, threats, and export violations. McQuade serves on a number of non-profit boards, and served on the Biden-Harris Transition Team in 2020-2021. She has been recognized by The Detroit News with the Michiganian of the Year Award, the Detroit Free Press with the Neal Shine Award for Exemplary Regional Leadership, Crain’s Detroit Business as a Newsmaker of the Year and one of Detroit’s Most Influential Women, and the Detroit Branch NAACP and Arab American Civil Rights League with their Tribute to Justice Award. McQuade is a graduate of the University of Michigan and its law school. She and her husband live in Ann Arbor, Michigan, and have four children.s an assistant professor of English at Emory University with a courtesy appointment in quantitative theory and methods. He is the author of American Literature and the Long Downturn: Neoliberal Apocalypse (2020). His writing has appeared in the New York Times, the Washington Post, the Los Angeles Review of BooksThe RumpusDissent, and other publications.

Author of the recent book, Black Software: The Internet & Racial Justice, From the Afronet to Black Lives Matter, Dr. Charlton McIlwain is Vice Provost for Faculty Development, Pathways & Public Interest Technology at New York University, where he is also Professor of Media, Culture, and Communication at NYU Steinhardt. He works at the intersections of computing technology, race, inequality, and racial justice activism. He has served as an expert witness in landmark U.S. Federal Court cases on reverse redlining/racial targeting in mortgage lending and recently testified before the U.S. House Committee on Financial Services about the impacts of automation and artificial intelligence on the financial services sector. He is the author of the recent PolicyLink report Algorithmic Discrimination: A Framework and Approach to Auditing & Measuring the Impact of Race-Targeted Digital Advertising. He writes regularly for outlets such as The Guardian, Slate’s Future Tense, MIT Technology Review and other outlets about the intersection of race and technology. McIlwain is the founder of the Center for Critical Race & Digital Studies, and is Board President at Data & Society Research Institute. He leads NYU’s Alliance for Public Interest Technology, is NYU’s Designee to the Public Interest Technology University Network, and serves on the executive committee as co-chair of the ethics panel for the International Panel on the Information Environment.

Book Talk: Attack from Within by Barbara McQuade
Thursday, June 6 @ 10am PT / 1pm ET
Register now for the virtual event!

Books are Big AI’s Achilles Heel

Posted May 13, 2024

By Dave Hansen and Dan Cohen

Image of the Rijksmuseum by Michael D Beckwith. Image dedicated to the Public Domain.

Rapidly advancing artificial intelligence is remaking how we work and live, a revolution that will affect us all. While AI’s impact continues to expand, the operation and benefits of the technology are increasingly concentrated in a small number of gigantic corporations, including OpenAI, Google, Meta, Amazon, and Microsoft.

Challenging this emerging AI oligopoly seems daunting. The latest AI models now cost billions of dollars, beyond the budgets of startups and even elite research universities, which have often generated the new ideas and innovations that advance the state of the art.

But universities have a secret weapon that might level the AI playing field: their libraries. Computing power may be one important part of AI, but the other key ingredient is training data. Immense scale is essential for this data—but so is its quality.

Given their voracious appetite for text to feed their large language models, leading AI companies have taken all the words they can find, including from online forums, YouTube subtitles, and Google Docs. This is not exactly “the best that has been thought and said,” to use Matthew Arnold’s pointed phrase. In Big AI’s haphazard quest for quantity, quality has taken a back seat. The frequency of “hallucinations”—inaccuracies currently endemic to AI outputs—are cause for even greater concern.

The obvious way to rectify this lack of quality and tenuous relationship to the truth is by ingesting books. Since the advent of the printing press, authors have published well over 100 million books. These volumes, preserved for generations on the shelves of libraries, are perhaps the most sophisticated reflection of human thinking from the beginning of recorded history, holding within them some of our greatest (and worst) ideas. On average, they have exceptional editorial quality compared to other texts, capture a breadth and diversity of content, a vivid mix of styles, and use long-form narrative to communicate nuanced arguments and concepts.

The major AI vendors have sought to tap into this wellspring of human intelligence to power the artificial, although often through questionable methods. Some companies have turned to an infamous set of thousands of books, apparently retrieved from pirate websites without permission, called “Books3.” They have also sought licenses directly from publishers, using their massive budgets to buy what they cannot scavenge. Meta even considered purchasing one of the largest publishers in the world, Simon & Schuster.

As the bedrock of our shared culture, and as the possible foundation for better artificial intelligence, books are too important to flow through these compromised or expensive channels. What if there were a library-managed collection made available to a wide array of AI researchers, including at colleges and universities, nonprofit research institutions, and small companies as well as large ones?

Such vast collections of digitized books exist right now. Google, by pouring millions of dollars into its long-running book scanning project, has access to over 40 million books, a valuable asset they undoubtedly would like to keep exclusive. Fortunately, those digitized books are also held by Google’s partner libraries. Research libraries and other nonprofits have additional stockpiles of digitized books from their own scanning operations, derived from books in their own collections. Together, they represent a formidable aggregation of texts.

A library-led training data set of books would diversify and strengthen the development of AI. Digitized research libraries are more than large enough, and of substantially higher quality, to offer a compelling alternative to existing scattershot data sets. These institutions and initiatives have already worked through many of the most challenging copyright issues, at least for how fair use applies to nonprofit research uses such as computational analysis. Whether fair use also applies to commercial AI, or models built from iffy sources like Books3, remains to be seen.

Library-held digital texts come from lawfully acquired books—an investment of billions of dollars, it should be noted, just like those big data centers—and libraries are innately respectful of the interests of authors and rightsholders by accounting for concerns about consent, credit, and compensation. Furthermore, they have a public-interest disposition that can take into account the particular social and ethical challenges of AI development. A library consortium could distinguish between the different needs and responsibilities of academic researchers, small market entrants, and large commercial actors. 

If we don’t look to libraries to guide the training of AI on the profound content of books, we will see a reinforcement of the same oligopolies that rule today’s tech sector. Only the largest, most well-resourced companies will acquire these valuable texts, driving further concentration in the industry. Others will be prevented from creating imaginative new forms of AI based on the best that has been thought and said. As they have always done, by democratizing access libraries can support learning and research for all, ensuring that AI becomes the product of the many rather than the few.

Further reading on this topic: “Towards a Books Data Commons for AI Training,” by Paul Keller, Betsy Masiello, Derek Slater, and Alek Tarkowski.

This week, Authors Alliance celebrates its 10th anniversary with an event in San Francisco on May 17 (We still have space! Register for free here) titled “Authorship in an Age of Monopoly and Moral Panics,” where we will highlight obstacles and opportunities of new technology. This piece is part of a series leading up to the event.

Authors Alliance Submits Amicus Brief in Tiger King Fair Use Case

Posted May 6, 2024

By Dave Hansen

Have you ever used a photograph to illustrate a historical event in your writing? Or quoted, say from a letter, to point out some fact that the author conveyed in their writing? According to the 10th Circuit, these aren’t the kinds of uses that fair use supports. 

On Thursday, Authors Alliance joined with EFF, the Association of Research Libraries, the American Library Association, and Public Knowlege in filing an amicus brief asking the 10th Circuit Court of Appeals to reconsider its recent fair use decision in Whyte Monkee v. Netflix. 

The case is about Netflix’s use of a funeral video recording in its documentary series Tiger King, a true crime documentary about Joseph Maldanado, aka Joe Exotic, an excentric zookeeper, media personality, exotic animal owner, and convicted felon. The recording at issue was created by Timothy Sepi/Whyte Monkee, as a memorial for Travis Maldonado, Joe Exotic’s late husband. Netflix used about 60 seconds of the funeral video in its show. Its purpose was, among other things, to “illustrate Mr. Exotic’s purported megalomania, even in the face of tragedy.” 

A three-judge panel of the 10th Circuit issued its opinion in late March, concluding that Netflix’s use was not “transformative” under the first fair use factor and therefore disfavored as a fair use. The panel relied heavily on the Supreme Court’s recent decision in Andy Warhol v. Goldsmith, taking that case to mean that uses that do not comment or criticize the artistic and creative aspects of the underlying work are generally disfavored. So, the court concluded: 

Defendants’ use of the Funeral Video is not transformative under the first fair use factor. Here, Defendants did not comment on or “target” Mr. Sepi’s work at all; instead, Defendants used the Funeral Video to comment on Joe Exotic. More specifically, Defendants used the Funeral Video to illustrate Mr. Exotic’s purported megalomania, even in the face of tragedy. By doing so, Defendants were providing a historical reference point in Mr. Exotic’s life and commenting on Mr. Exotic’s showmanship. However, Defendants’ use did not comment on Mr. Sepi’s video—i.e., its creative decisions or its intended meaning.

You can probably see the problem. Fair use has, for a very long time, supported a wide variety of other uses that incorporate existing works as historical reference points and illustrations. Although the Supreme Court talked a lot about criticism and comment in its Warhol opinion (which made sense, given that the use before it was a purported artistic commentary), I think very few people interpreted that decision to mean that only commentary and criticism are permissible transformative fair uses. But as our brief points out, the panel’s decision essentially converts the Supreme Court’s decision in Warhol from a nuanced reaffirmation of fair use precedent into a radical rewrite of the law that only supports those kinds of uses. 

Our brief argues that the 10th Circuit misread the Supreme Court’s opinion in Warhol, and that it ignored decades of fair use case law. We point to a few good examples – e.g., Time v. Bernard Geis (a 1968 case finding fair use of a recreation of the famous Zapruder film in a book titled “Six Seconds in Dallas,” analyzing President Kennedy’s assassination), New Era Publications v. Carol Publishing (a 1990 case supporting reuse of lengthy quotations of L Ron Hubbard in a book about him, to make a point about Hubbard’s “hypocrisy and pomposity”) and Bill Graham Archives v. Dorling Kindersley (a 2006 case finding fair use of Grateful Dead concert posters in a book using them as historical reference points). 

Our brief also highlights how communities of practice such as documentary filmmakers, journalists, and nonfiction writers have come to rely on fair use to support these types of uses–so much so that these practices are codified in best practices here, here, and even here Authors Alliance’s own Fair Use for Nonfiction Authors guide. 

Although it is rare for appellate courts to grant rehearing of already issued opinions, this opinion has drawn quite a lot of negative attention. In addition to our amicus brief, there were amicus briefs filed in support of rehearing from: 

Given the broad and negative reach of this decision, I hope the 10th Circuit will pay attention and grant the request. 

Book Talk – Unlocking the Digital Age: The Musician’s Guide to Research, Copyright & Publishing

Posted March 27, 2024

Join us for a book talk with ANDREA I. COPLAND & KATHLEEN DeLAURENTI about UNLOCKING THE DIGITAL AGE, a crucial resource for early career musicians navigating the complexities of the digital era.


“[Musicians,] Use this book as a tool to enhance your understanding, protect your creations, and confidently step into the world of digital music. Embrace the journey with the same fervor you bring to your music and let this guide be a catalyst in shaping a fulfilling and sustainable musical career.”

Based on coursework developed at the Peabody Conservatory, Unlocking the Digital Age: The Musician’s Guide to Research, Copyright, and Publishing by Andrea I. Copland and Kathleen DeLaurenti [READ NOW] serves as a crucial resource for early career musicians navigating the complexities of the digital era. This guide bridges the gap between creative practice and scholarly research, empowering musicians to confidently share and protect their work as they expand their performing lives beyond the concert stage as citizen artists. It offers a plain language resource that helps early career musicians see where creative practice and creative research intersect and how to traverse information systems to share their work. As professional musicians and researchers, the authors’ experiences on stage and in academia makes this guide an indispensable tool for musicians aiming to thrive in the digital landscape.

Copland and DeLaurenti will be in conversation with musician and educator, Kyoko Kitamura. Music librarian Matthew Vest will facilitate our discussion.

Unlocking the Digital Age: The Musician’s Guide to Research, Copyright, and Publishing is available to read & download.


About our speakers

ANDREA I. COPLAND is an oboist, music historian, and librarian based in Baltimore, MD. Andrea has dual master’s of music degrees in oboe performance and music history from the Peabody Institute of the Johns Hopkins University and is currently Research Coordinator at the Répertoire International de la Presse Musicale (RIPM) database. She is also a teaching artist with the Baltimore Symphony Orchestra’s OrchKids program and writes a public musicology blog, Outward Sound, on substack.

KATHLEEN DeLAURENTI is the Director of the Arthur Friedheim Library at the Peabody Institute of The Johns Hopkins University where she also teaches Foundations of Music Research in the graduate program. Previously, she served as scholarly communication librarian at the College of William and Mary where she participated in establishing state-wide open educational resources (OER) initiatives. She is co-chair of the Music Library Association (MLA) Legislation Committee as well as a member of the Copyright Education sub-committee of the American Library Association (ALA) and is past winner of the ALA Robert Oakley Memorial Scholarship for copyright research. DeLaurenti is passionate about copyright education, especially for musicians. She is active in communities of practice working on music copyright education, sustainable economic models for artists and musicians, and policy for a balanced copyright system. DeLaurenti served as the inaugural Open Access Editor of MLA and continues to serve on the MLA Open Access Editorial Board. She holds an MLIS from the University of Washington and a BFA in vocal performance from Carnegie Mellon University.

KYOKO KITAMURA is a Brookyn-based vocal improviser, bandleader, composer and educator, currently co-leading the quartet Geometry (with cornetist Taylor Ho Bynum, guitarist Joe Morris and cellist Tomeka Reid) and the trio Siren Xypher (with violist Melanie Dyer and pianist Mara Rosenbloom). A long-time collaborator of legendary composer Anthony Braxton, Kitamura appears on many of his releases and is the creator of the acclaimed 2023 documentary Introduction to Syntactical Ghost Trance Music which DownBeat Magazine calls “an invaluable resource for Braxton-philes.” Active in interdisciplinary performances, Kitamura recently provided vocals for, and appeared in, artist Matthew Barney’s 2023 five-channel installation Secondary.

MATTHEW VEST is the Music Inquiry and Research Librarian at UCLA. His research interests include change leadership in higher education, digital projects and publishing for music and the humanities, and composers working at the margins of the second Viennese School. He has also worked in the music libraries at the University of Virginia, Davidson College, and Indiana University and is the Open Access Editor for the Music Library Association.

April 3 @ 10am PT / 1pm ET
Register now!

Hachette v. IA Amicus Briefs: Highlight on Privacy and Controlled Digital Lending

Posted January 16, 2024

Photo by Matthew Henry on Unsplash

Over the holidays you may have read about the amicus brief we submitted in the Hachette v. Internet Archive case about library controlled digital lending (CDL), which we’ve been tracking for quite some time. Our brief was one of 11 amicus briefs filed that explained to the court the broader implications of the case. Internet Archive itself has a short overview of the others already (representing 20 organizations and 298 individuals–mostly librarians and legal experts). 

I thought it would be worthwhile to highlight some of the important issues identified by these amici that did not receive much attention earlier in the lawsuit. This post is about the reader’s privacy issues raised by several amici in support of Internet Archive and CDL. Later this week we’ll have another post focused on briefs and arguments about why the district court inappropriately construed Internet Archive’s lending program as “commercial.” 

Privacy and CDL 

One aspect of library lending that’s really special is the privacy that readers are promised when they check out a book. Most states have special laws that require libraries to protect readers’ privacy, something that libraries enthusiastically embrace (e.g., see the ALA Library Bill of Rights) as a way to help foster free inquiry and learning among readers.  Unlike when you buy an ebook from Amazon–which keeps and tracks detailed reader information–dates, times, what page you spent time on, what you highlighted–libraries strive to minimize the data they keep on readers to protect their privacy. This protects readers from data breaches or other third party demands for that data. 

The brief from the Center for Democracy and Technology, Library Freedom Project, and Public Knowledge spends nearly 40 pages explaining why the court should consider reader privacy as part of its fair use calculus. Represented by Jennifer Urban and a team of students at the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley Law (disclosure: the clinic represents Authors Alliance on some matters, and we are big fans of their work), the brief masterfully explains the importance of this issue. From their brief, below is a summary of the argument (edited down for length): 

The conditions surrounding access to information are important. As the Supreme Court has repeatedly recognized, privacy is essential to meaningful access to information and freedom of inquiry. But in ruling against the Internet Archive, the district court did not consider one of CDL’s key advantages: it preserves libraries’ ability to safeguard reader privacy. When employing C

DL, libraries digitize their own physical materials and loan them on a digital-to-physical, one-to-one basis with controls to prevent redistribution or sharing. CDL provides extensive, interrelated benefits to libraries and patrons, such as increasing accessibility for people with disabilities or limited transportation, improving access to rare and fragile materials, facilitating interlibrary resource sharing—and protecting reader privacy. For decades, libraries have protected reader privacy, as it is fundamental to meaningful access to information. Libraries’ commitment is reflected in case law, state statutes, and longstanding library practices. CDL allows libraries to continue protecting reader privacy while providing access to information in an increasingly digital age. Indeed, libraries across the country, not just the Internet Archive, have deployed CDL to make intellectual materials more accessible. And while increasing accessibility, these CDL systems abide by libraries’ privacy protective standards. 

Commercial digital lending options, by contrast, fail to protect reader privacy; instead, they threaten it. These options include commercial aggregators—for-profit companies that “aggregate” digital content from publishers and license access to these collections to libraries and their patrons—and commercial e-book platforms, which provide services for reading digital content via e-reading devices, mobile applications (“apps”), or browsers. In sharp contrast to libraries, these commercial actors track readers in intimate detail. Typical surveillance includes what readers browse, what they read, and how they interact with specific content—even details like pages accessed or words highlighted. The fruits of this surveillance may then be shared with or sold to third parties. Beyond profiting from an economy of reader surveillance, these commercial actors leave readers vulnerable to data breaches by collecting and retaining vast amounts of sensitive reader data. Ultimately, surveilling and tracking readers risks chilling their desire to seek information and engage in the intellectual inquiry that is essential to American democracy. 

Readers should not have to choose to either forfeit their privacy or forgo digital access to information; nor should libraries be forced to impose this choice on readers. CDL provides an ecosystem where all people, including those with mobility limitations and print disabilities, can pursue knowledge in a privacy-protective manner. . . . 

An outcome in this case that prevents libraries from relying on fair use to develop and deploy CDL systems would harm readers’ privacy and chill access to information. But an outcome that preserves CDL options will preserve reader privacy and access to information. The district court should have more carefully considered the socially beneficial purposes of library-led CDL, which include protecting patrons’ ability to access digital materials privately, and the harm to copyright’s public benefit of disallowing libraries from using CDL. Accordingly, the district court’s decision should be reversed.

The court below considered CDL copies and licensed ebook copies as essentially equivalent and concluded that the CDL copies IA provided acted as substitutes for licensed copies. Authors Alliance’s amicus brief points out some of the ways that CDL copies actually quite different significantly from licensed copies. It seems to me that this additional point about protection of reader privacy–and the protection of free inquiry that comes with it–is exactly the kind of distinguishing public benefit that the lower court should have considered but did not. 

You can read the full brief from the Center for Democracy and Technology, Library Freedom Project, and Public Knowledge here. 

Authors Alliance Amicus Briefs: Defending Free Expression from Trademark, Social Media, and Copyright Law Challenges

Posted December 8, 2023
Photo by Claire Anderson on Unsplash

The cases that threaten authors’ rights aren’t always obvious. You might have noticed in the last year that we’ve filed amicus briefs in some unusual ones—for example, a trademark lawsuit about squishy dog toys, or a case about YouTube recommendation algorithms. It’s often true that cases like these raise legal questions that extend well beyond their facts, and decisions in these cases can have unintended consequences for authors. As part of our mission of speaking up on behalf of authors for the public interest, we file amicus briefs in these cases to help courts craft better, more informed decisions that account for the interests of authors. 

In the last few weeks Authors Alliance has joined with several other organizations to file amicus briefs in three cases like these: 

Hermès v. Rothschild: Free Expression and Trademarks

The first is an amicus brief we joined in Hermès International v. Rothschild. Our brief is in support of Mason Rothschild, a digital artist who was sued by Hermès, creator of the famous “Birkin bag,” for allegedly infringing Hermès’s trademark. Rothschild created a series of NFT’s mimicking the bag that he called “metaBirkins,”which, he argues, comments on the brand, consumerism, luxury goods and so on. Rothschild lost at the court below and the case is currently before the Second Circuit Court of Appeals. 

Our amicus brief—drafted by the Harvard Cyberlaw Clinic and joined by Authors Alliance, MSCHF, CTHDRL, Alfred Steiner, and Jack Butcher—argues that such uses are protected by the test announced in Rogers v. Grimaldi, a threshold test designed to protect First Amendment interests in the trademark context, allowing courts to quickly resolve trademark litigation when trademarks are used in expressive works unless there is “no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the [second work] explicitly misleads as to the source or the content of the work.” Our brief argues that Rogers remains good law after the United States Supreme Court’s recent decision in Jack Daniel’s Props. v. VIP Products and that a creator’s intent to sell their work (in this case selling NFTs) is not relevant when balancing trademark owners’ and creators’ rights. The amici we joined with represent artists, creators, and organizations that are concerned that a ruling in favor of Hermès will stifle creators’ ability to comment on popular brands and companies. 

Warner Chappell v. Nealy: Copyright damages 

This is a case before the U.S. Supreme court raising questions about how far back courts can look when calculating monetary damages in copyright infringement lawsuits. The dispute in this case arose between Nealy, owner of an independent record label that released a number of albums in the 1980s, and Warner Chappell, who Nealy claims engaged in unauthorized reproduction and distribution of his works for years. Nealy claims he didn’t learn of the violation until 2016. He filed suit in 2018 and sought monetary damages for uses going back to 2008. Warner Chappell argues that the Copyright Act’s statute of limitations bars Nealy from recovering for damages going that far back. 

The legal question in this case is whether under the Copyright Act’s “discovery accrual” statute of limitations rule, a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit. Lower courts have held that for actually filing a lawsuit, the statute of limitations clock starts to run based on when a plaintiff discovers the alleged infringement. This case raises a related question of how far back courts should look when assessing damages—just three years from the date of filing the suit, or an indeterminate period of time as long as it was within three years of the plaintiff discovering the harm? 

We joined  an amicus brief with EFF, the American Library, and the Association of Research Libraries in support of Warner Chappell. EFF did most of the heavy lifting for this brief (thank you!), making the case that a damages regime that extends indeterminately into the past will stifle creativity and encourage copyright trolls. A three-year lookback period is enough. 

We’ve long argued that the copyright’s damages regime needs to be reformed for authors. With statutory damage awards of up to $150,000 per work infringed,  the specter of such crippling liability can chill even non-infringing and socially beneficial acts of authorship, dissemination, archiving, and curation. For authors, it takes little imagination to see how problematic it would be if opportunistic copyright litigants with flimsy claims could leverage a decades old acts—e.g., an image reproduced in a blog post or article or book pursuant to fair use—to extract large damage awards spanning many years. If the court were to allow damages to reach back indeterminately, we argue that copyright trolls would be emboldened, hampering creativity and harming creators while providing them little forward-looking benefit for protection of their own works. 

NetChoice v. Paxton and Moody v. NetChoice: First Amendment and Online Platform Regulation

This case has received a ton of attention, in part because it is so politically charged. The basis of the suit is a challenge brought by NetChoice and CCIA, two internet and technology industry groups, against  laws passed in Texas and Florida that attempt to regulate how large social media websites moderate speech on their platforms. Each of those laws are ostensibly designed to protect the speech of users by limiting how platforms can remove or otherwise moderate their posts and each were passed in response to accusations of political bias.

On their faces these laws sound appealing—authors along with many other users are frustrated with opaque decision making on platforms about why their posts may be taken down, demonetized, or deprioritized by platform algorithms. These are real problems, but in our view, the right solution is not government-dictated content moderation rules. Authors use a wide variety of online platforms and rely heavily on content moderation to ensure that their views are not drowned out by spam, lies, or trolls. 

For our amicus brief, we joined EFF along with the National Coalition Against Censorship, Woodhull Freedom Foundation, Fight for the Future, and the First Amendment Coalition. We argue as follows: The First Amendment right of social media publishers to curate and edit the user speech they publish, free from government mandates, results in a diverse array of forums for users, with unique editorial views and community norms. Although some internet users are understandably frustrated and perplexed by the process of “content moderation,” by which sites decide which users’ posts to publish, recommend, or amplify, it’s on the whole far best for internet users when the First Amendment protects the sites’ rights to make those curatorial decisions. This First Amendment right to be editorially diverse does not evaporate the moment a site reaches a certain state-determined level of popularity. But both Texas House Bill 20 (HB 20) and Florida Senate Bill 7072 (SB 7072) take those protections away and force popular sites to ignore their own rules and publish speech inconsistent with their editorial vision, distorting the marketplace of ideas.

Content moderation by online intermediaries is an already fraught process, and government interjection of itself into that process raises serious practical and First Amendment concerns. Inconsistent and opaque private content moderation is a problem for users. But it is one best addressed through self-regulation and regulation that doesn’t retaliate against the editorial process.

An Open Letter Regarding Copyright Reform on Behalf of South African Authors

Posted September 25, 2023
Photo by Jacques Nel on Unsplash

Today we are very pleased to share an open letter regarding copyright reform on behalf of South African authors. The letter is available here and is also available as a PDF (with names as of today) here.

The letter comes at a critical decision making moment for South Africa’s Copyright Amendment Bill which has been debated for years (read more here and here on our views). We believe it is important for lawmakers to hear from authors who support this bill, and in particular hear from us about why we view its fair use provisions and author remuneration provisions so positively.

We welcome other South African authors to add their names to the letter to express their support. You can do so by completing this form.


Assessing the U.S. Copyright Small Claims Court After One Year

Posted September 18, 2023

Authors Alliance members will recall the series of posts we’ve made about the United States’s new copyright small claims court. The below is a post by Dave Hansen and Authors Alliance member Katie Fortney, based on a forthcoming article we recently posted assessing how this court has fared in its first year of operations. This post was originally published on the Kluwer Copyright Blog.

In June 2023 the U.S. Copyright Office celebrated the one-year anniversary of operations of the Copyright Claims Board (“CCB”), a novel new small claims court housed within the agency with a budget request for $2.2 million in ongoing yearly costs. Though not entirely unique (e.g., the UK’s IP Enterprise court has been described as filling a similar role since 2012), the CCB has been closely watched and hotly debated (see here, here, and here).

The CCB was preceded by years of argument about the benefits and risks of such a small claims court.  Proponents argued that the CCB would offer rightsholders a low-cost, efficient alternative to litigation in federal courts (which can easily cost over $100,000 to litigate), allowing small creators to more effectively defend their rights. Opponents feared that the CCB would foster abuse, encouraging frivolous lawsuits while creating a trap for unwary defendants.

We set out to assess these arguments in light of data on the CCB’s first year of operation, which is explored in more detail in our article here, forthcoming in the Journal of the Copyright Society of the USA, and the data used for this article available here. The post summarizes from that article, which is itself based on an empirical review of the CCB’s first year of operations using data extracted from the CCB’s online filing system for the 487 claims filed with the court between June 2022 and June 2023.

How the CCB Works

To assess the work of the CCB, it’s first important to understand how the new court works. For claimants to successfully pursue a claim, they must first pass three hurdles:

  • their claim must be compliant, which means that it must include some key information regarding, e.g., ownership of a copyright, access to the work by the respondent in order to copy it, and substantial similarity between the allegedly infringing copy and the original;
  • their claim must also be properly served or delivered to the respondent, following the specific procedures that the Copyright Office has established;
  • the claimant must wait 60 days to see if the respondent decides to opt-out of the proceedings (in which case the claimant can refile in the more expensive, but more robust federal district court).

Once the opt-out window has passed, the proceeding becomes “active” and a scheduling order is issued. Then the parties can engage in discovery, have hearings and conferences, and eventually receive a final determination where the CCB may award damages.

CCB By the Numbers

In the first year of the CCB 487 claims were filed. However, only 43 of these 487 claims–less than 9%–had been issued scheduling orders and made it to the active phase by June 15, 2023.

Meanwhile, 302 cases had been closed, most of them dismissed without prejudice (meaning the case did not reach the merits and the claimant could choose to file again). The remaining claims were either awaiting review by the CCB, or waiting for an action from the claimant like filing an amended claim or filing proof of service.

Though the CCB gives claimants multiple opportunities to amend their complaint to fix problems with it (even offering detailed and helpful suggestions on how to fix those problems), over 150 claims were dismissed because the claimant did not file a proper claim. Failure to state facts sufficient to support Access and Substantial Similarity were common problems, showing up about 110 times each in CCB orders to amend (sometimes in the same order to amend). In some cases, however, there was no way to fix the complaint. For example, 35 claims were trying to pursue cases against foreign respondents, over whom the CCB has no jurisdiction. And over 100 claims were copyright infringement claims where the claimant hadn’t filed for copyright registration of the work allegedly infringed (a prerequisite to filing).

Claimants also had problems with service: 60 claims were dismissed in the first year because claimants didn’t file documentation showing that they’d accomplished valid proof of service. Finally, opt-out (which some proponents of the CCB feared would undermine the court) is an important but much smaller pathway out of the CCB: it accounted for 35 dismissals.

Perhaps because copyright is technical and complicated, it may not be surprising to find that having a lawyer helps avoid dismissal:  90% of claims from represented claimants had been certified as compliant; for claims from self-represented claimants, only 46% were compliant. Unregistered claimants account for over 70% of claims filed, but only 40% of those that make it to the active phase.

Looking more closely at the claimants themselves, we do see that the CCB system is being used by aggressive and prolific copyright litigants, but we haven’t seen the volume of copyright-troll litigation seen in the past in federal district courts.This may be in part because the Copyright Office took these concerns seriously and created rules to discourage it, such as limiting the number of claims a plaintiff can file within one year. The number of repeat filers was low – only nine filers had more than five claims. Those include, however, 17 claims filed by Higbee and Associates (sometimes referred to as a “troll” though the label may not exactly fit), and 20 by David C. Deal (another known and aggressive serial copyright litigant). And the only case in which the CCB had issued an order was in favor of David Oppenheimer, who has separately filed more than 170 copyright suits in federal courts.

Because the process has been so slow, it’s difficult to evaluate how the CCB is working for respondents. Opponents of the CCB feared that its ability to make default determinations (issuing monetary awards when the respondent never shows up) could be a trap for the unwary. The CCB has issued only two such determinations so far (both in August 2023, for $3000 each), and only one final determination that wasn’t the result of a default, withdrawal, or settlement. So, it’s too early to tell how common defaults will be. However, they will continue to be an issue to watch: in the first year, respondents were as likely to end up on the path to default as they were to participate in a proceeding.

Our Takeaways and Conclusion

On the one hand, we haven’t seen rampant abuse of the system. To be sure, serial copyright litigants are actively using the CCB, but in numbers far fewer than previously seen even in federal district court. And damage awards have been modest.

However, it also seems that the CCB has not achieved its promised efficiency for small litigants–for most claimants the system seems to be too complicated and slow, with the CCB only issuing a final determination in a single case in its entire first year, and the vast majority of claims dismissed for failure to adequately comply with CCB rules. The CCB has already gone to great lengths to explain the process and to help claimants correct errors early in the process. It may be hard for the CCB to adjust its rules to lower barriers unless it is willing to sacrifice basic procedural safeguards for respondents (something we think it should not do). Despite the hope of advocates and legislators and the admirable efforts of those working at the CCB, the early results lead us to think that it may just be that complex copyright disputes are ill-suited for a self-service small claims tribunal.

Coalition Letter to Congress on Copyright and AI

Posted September 11, 2023

Photo by Chris Grafton on Unsplash

Earlier today Authors Alliance joined a broad coalition of public interest organizations, creators, academics, and others in a letter to members of Congress urging caution when considering proposals to revamp copyright law to address concerns about artificial intelligence. As we explained previously, we believe that copyright law currently has the appropriate tools needed to both protect creators and encourage innovation.  

As the letter states, the signatories share a common interest in ensuring that artificial intelligence meets its potential to enrich the American economy, empower creatives, accelerate the progress of science and useful arts, and expand humanity’s overall welfare. Many creators are already using AI to conduct innovative new research, address long-standing questions, and produce new creative works. Some, such as some of these artists, have used this technology for many years.

So our message is simple: existing copyright doctrine has evolved and adapted to accommodate many revolutionary technologies, and is well equipped to address the legitimate concerns of creators. Our courts are the proper forum to apply those doctrines to the myriad fact patterns that AI will present over the coming years and decades. 

You can read the full letter here. 

Current copyright law isn’t perfect, and we certainly believe creativity and innovation would benefit from some changes. However, we should be careful about reactionary, alarmist politics. It seldom makes for good law. Unfortunately, that’s what we’re seeing right now with AI, and we hope that Congress has the wisdom to see through it. 

We encourage our members to reach out to your own Congressional representative to express the need to tread carefully, and (if you are) to explain how you are using AI in your work.  We’d also be very happy to hear from you as we develop our own further policy communications to Congress and to agencies such as the U.S. Copyright Office.