Category Archives: Blog

Update: Librarian of Congress Grants 1201 Exemption to Enable Text Data Mining Research

Posted October 27, 2021
Photo by Michael Dziedzic on Unsplash

Today, Authors Alliance is thrilled to announce that the Librarian of Congress granted our request for a new exemption to section 1201 of the Digital Millennium Copyright Act (“DMCA”) that will enable text data mining research on e-books and films. Following our petition, testimony, and follow-up meeting with the Copyright Office to discuss the concerns of opponents of the exemption, the Register of Copyrights recommended granting our exemption and the Librarian of Congress agreed to grant it, albeit with some important limitations.


Section 1201 prohibits the circumvention of technical protection measures (“TPMs”) used by rightsholders to control access to their works. In other words, section 1201 prevents individuals from breaking digital locks on copyrighted works, even when they seek to make a fair use of those copyrighted works or engage in other non-infringing activities. But because section 1201’s prohibitions can interfere with fair and socially beneficial uses of copyrighted works, the DMCA also provides for a triennial rulemaking process to grant temporary exemptions to these prohibitions. Authors Alliance has participated in each 1201 rulemaking cycle since our founding, petitioning for exemptions and their renewals to help authors both enjoy their rights and see their creations reach wide audiences. In the latest rulemaking, we submitted a comment petitioning for a new exemption that would allow researchers to bypass TPMs on literary works distributed electronically and films for the purpose of conducting text and data mining (“TDM”) research, joined by the Library Copyright Alliance and the American Association of University Professors. Our petition was accompanied by 14 letters of support from researchers engaging in TDM research on e-books and films who found themselves hampered by 1201’s prohibitions.

TDM refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. But the prohibition on bypassing TPMs in section 1201 made TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law is intended to incentivize. Authors Alliance and the other exemption proponents consider TDM research to fall squarely within the ambit of fair use, though the petition’s opponents disagreed with this position.

The Exemption and its Limitations

The new exemption—which will go into effect tomorrow—allows researchers affiliated with academic institutions to circumvent TPMs for the purposes of conducting TDM research on e-books and films. In announcing her recommendation to grant the exemption, Register of Copyrights Shira Perlmutter stated the Copyright Office “recognizes the academic and societal benefits that could result from TDM research and concludes that properly tailored exemptions meet the statutory requirements for adoption.” Because existing alternatives to circumventing TDMs were not adequate to meet the researchers’ needs, the Copyright Office recognized the importance of the exemption for those researchers.

Register Perlmutter’s recommendation was also accompanied by a lengthy discussion of whether TDM research is fair use, resolving the disagreement between the proponents and opponents of the petition to some extent. She stated that TDM research, as described in our petition and with certain limitations, was likely to be a fair use, in large part because it is non-commercial and likely to be transformative. While Authors Alliance is thrilled that our proposed exemption has been granted, enabling socially beneficial TDM research on copyrighted works which was formerly prohibited under 1201, the aforementioned limitations may limit the usability of the exemption for some TDM researchers.

Security Measures

During the hearing and the post-hearing meeting, Authors Alliance participated in lengthy discussions about how the corpora of works should be secured. In the Librarian of Congress’s view, the most important limitation to this exception is a requirement that the academic institution “storing or hosting a corpus of copyrighted works . . . implement either security measures that have been agreed upon by copyright owners and institutions of higher education, or, in the absence of such measures, those measures that the institution uses to keep its own highly confidential information secure.” This seems to represent a compromise position between Authors Alliance’s argument that measures for securing these corpora, while important, should be flexible and tailored to the capabilities of the particular institution and opponents’ argument that the utmost security controls were needed to prevent unauthorized dissemination of the works in the corpora. Authors Alliance had pointed out that prescribing specific security controls, as the exemption’s opponents argued for, could render the exemption unusable for researchers at institutions that were not able to meet these high security standards. Instead, we suggested that the exemption require “reasonable security measures” to secure the corpora. By allowing academic institutions to secure corpora using their own security measures for storing highly confidential information, the recommendation did provide for some flexibility, while still indicating that very strong security controls were needed.

Access to Corpora for Verification Purposes

Register Perlmutter recommended that the researchers should be permitted to “view or listen to the contents of the copyrighted works in the corpus solely for the purpose of verification of the research findings, not for the works’ expressive purposes.” Authors Alliance agreed to this limitation in our post-hearing meeting, pointing out that the requirement that the copyrighted works be lawfully obtained meant that researchers would already have access to the copyrighted works for expressive purposes, and would not need access to the corpora to read or watch the works, but simply to verify their research findings.

Licenses and Ownership

In the recommendation, Register Perlmutter also recommended adding a limitation that “circumvention be permitted only on copies of the copyrighted works that were lawfully acquired and that the institution owns or for which it has a non-time-limited license,” and should not be permitted on works the institution had “rented or borrowed.” This limitation has the potential to complicate the usability of the exemption with regards to TDM research on e-books: because e-books are generally licensed rather than owned, whether the exemption will permit TDM research on a certain e-book will depend on the terms of the license for that e-book.

The Exemption Going Forward

It remains to be seen how the limitations in the exemption will affect researchers’ ability to make use of it. This being said, Authors Alliance views the recommendation as a huge victory for TDM researchers and authors who care about the broad dissemination of their work and contributing to the progress of knowledge. We will continue to update our readers and members as the exemption is implemented and received by the TDM researchers who need it.

Authors Alliance is deeply indebted to the clinical team at the Samuelson Law Technology & Public Policy Clinic at UC Berkeley for their tireless work on our behalf petitioning for this exemption. We applaud their efforts and the dedication of our co-petitioners in making this exemption a reality.

Happy 25th Anniversary to the Internet Archive!

Posted October 19, 2021
Photo by Stephanie McCabe on Unsplash

This month, the Internet Archive is celebrating its 25th anniversary. At Authors Alliance, we regularly partner with the Internet Archive on projects around preservation of digital works, controlled digital lending, and other issues in copyright policy. In today’s post, we will share some things we love about the Internet Archive and how the resources it provides can support authors and help them reach their writing goals.

Library Lending

The Internet Archive lends out e-books through its digital library. Many of these loans require readers to obtain a library card from the Internet Archive, but these library cards are free and available to all internet users. The Internet Archive’s digital lending program enables authors to reach readers who are not able to access physical libraries containing the books they are interested in reading. Several Authors Alliance members have expressed enthusiasm about seeing their books on the Internet Archive’s virtual shelves because it helps them reach wide audiences. 

But the Internet Archive’s digital lending program is also a boon to authorship itself: as part of the writing process, authors often need to access other works for research purposes, and the Internet Archive’s lending program can make this significantly easier. Particularly during the COVID-19 pandemic, when many libraries have reduced physical services, digital library services like those the Internet Archive provide can fill the gap. The Internet Archive’s library has facilitated research on genealogy, mythology, and historical texts that has been integral to creating new works of authorship.

Digital Preservation

The Internet Archive’s library also serves the important purpose of preserving books that might otherwise vanish into obscurity, helping authors’ legacies live on past the commercial lives of their books. For example, in July, a New York Times article dove into the search for an obscure dating advice book pseudonymously written by bestselling author, Dan Brown, which the reporter was unable to track down. The piece lamented that readers were unable to find the book since it was out of print, and errors in ISBN assignment complicated efforts to obtain used copies. Though the article did not mention it, it turns out that the Dan Brown book in question is available to borrow on the Internet Archive’s digital library. The short commercial life of most books mean that many books fall into obscurity once they are out of print, languishing unseen on library shelves or in personal collections. But the digitization work the Internet Archive has done ensures that out of print books and other cultural ephemera are preserved for future authors, historians, and cultural scholars.

Public Domain Works

Outside of its collection of modern e-books which patrons can borrow, the Internet Archive maintains a collection of thousands of public domain works that are free for users to read online or download. The public domain—the body of works of authorship which are not subject to copyright protection, often because copyright has expired—is an important resource for authors and readers alike. Once a work is in the public domain, authors are free to use it in whatever way they wish, such as creating adaptations, retellings, or musical or film versions. This being said, it is not always easy to acquire free and accessible copies of public domain works. Free e-book editions of public domain works can sometimes be found on e-book retailer platforms like Amazon, but this is not always the case, and these e-books might still be accompanied by technical protection measures and licensing terms that curtail the uses authors can make of these works. Many of the most well-known contemporary stories are in fact derivative works based on works in the public domain, and the Internet Archive’s trove of public domain works can make it easier for authors to produce this type of new creative work. 

Similarly, public domain texts are rich sources for text data mining (automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data). For now, text data mining researchers interested in studying literary works are mostly limited to public domain texts because of the technical protection measures placed on modern e-books (Authors Alliance and others have asked the Copyright Office to grant an exemption to DMCA § 1201 to allow for text and data mining on modern e-books, though the Office has not yet made its decision). This limitation on text data mining makes the free, accessible public domain works available on the Internet Archive all the more important for authors and text data mining researchers alike.

Obtaining Image Permissions For Your Book: An Author’s Perspective

Posted October 12, 2021

Since we first published this guest post by Authors Alliance member Lois Farfel Stark in August 2018, Authors Alliance has received numerous questions from authors on clearing third-party permissions—an understandably daunting part of the publishing process. Inspired in part by this post’s perennial popularity, we are pleased to announce the upcoming release of a brand new guide on the topic of clearing third-party permissions. Stay tuned for the guide later this month, and if you haven’t already, consider joining Authors Alliance to receive updates about these and other new resources. 


Front cover of The Telling ImageOver ten years ago—when I began writing my new book, The Telling Image: Shapes of Changing Times—I knew I wanted to create a book that focused on images. The central topic of the book is how humans make sense of the world by finding a shape, an image, to hold everything together.

The journey from that moment to now has been one of discovery mixed with learning. In order to gather the over 200+ images into the book, I had to teach myself about copyright law—a task that is not easy, even on paper. Your book’s journey may be different, and you may even find yourself needing to consult with a lawyer, depending on the situation.

Copyrights for image use are complex, and copyright duration can be extremely long. The U.S. Copyright Act defines an image as a “work of visual art” which includes painting, drawing, print, sculpture, and photographic images. Other copyrightable pictorial, graphic, and sculptural works noted in the Act include “. . . two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.”

Eventually, I included a variety of images in my book, from early blueprints of corporate boardrooms to charts and diagrams used by physicists. Many uses of images require permission from the copyright holder, unless the use falls under an exception to copyright law like fair use or when the work is in the public domain. Uses within the copyright owner’s exclusive rights include reproducing the image in print or online, creating derivative works (new works based on the original), distributing copies of the image (i.e., by publication), or displaying the image in public. Seems pretty straightforward, right? Not so much. Each image in this book ended up having its own acquisition story.

Continue reading

A Fond Farewell & New Leadership Announcement

Posted October 5, 2021

Dear Members and Allies,

After five years serving as Authors Alliance’s Executive Director, next week is my last week leading the Authors Alliance team. I am thrilled to share that Rachel Brooke, current staff attorney at Authors Alliance, will serve as the organization’s Interim Executive Director.

I couldn’t be more proud of the work Authors Alliance has done since its founding in 2014 to provide an organizational home for authors who write to be read. It has been a privilege to collaborate with the wide range of members, allies, and partners who are working tirelessly to ensure that authors who care about the widespread and long-term availability of their works have a seat at the table in policy debates. In doing so, we have elevated the voices of the community of authors that has otherwise largely been overlooked in national, international, and institutional policymaking, and created a more balanced discourse in the areas where we have intervened.

We have also dedicated ourselves to sharing accurate and approachable guidance to empower authors to make decisions that align with their writing goals. We have built a guide series that provides clarifying information and actionable strategies to help authors make and keep their works available, ensuring that uncertainty does not hamper the sharing of knowledge and creativity.

There are, of course, many opportunities ahead for Authors Alliance to continue to shape law, policy, and practice in ways that align with our members’ interests. I am thrilled that Rachel will lead the organization into this next stage. Rachel’s background as a media attorney and, prior to law school, as a literary agent, make her a superb fit for the role. Rachel’s fresh perspective, ideas, and energy are sure to bring exciting new opportunities for Authors Alliance advocacy and education in the months ahead.

My heartfelt thanks goes to the community of authors, members, advisors, board members, staff, and other allies who support the mission of Authors Alliance and make our work possible. It has been a privilege to work with you.

Brianna Schofield
Executive Director

Freedom of Information Act Litigation for Authors

Posted September 21, 2021
Photo by Brandon Mowinkel on Unsplash

The Freedom of Information Act (“FOIA”) is a federal statute that allows members of the public to request non-public documents from the federal government. Documents authored by the federal government are considered part of the public domain when it comes to copyright law, and FOIA is similarly premised on the idea that people have a right to know what their government is up to. In last week’s post, we introduced FOIA and explained how authors can benefit from this law. In today’s follow-up post, we will discuss FOIA litigation involving authors in order to offer takeaways for authors interested in using FOIA in the course of their research and writing.

When the government fails to meet its obligations under FOIA, requesters—including authors—can sue the government agency to which they made the request in order to enforce the statute. FOIA litigation, like all lawsuits, can be expensive and time consuming—several of the cases discussed in this post dragged on for years. Consequently, many individual requesters, including authors, lack the resources to pursue FOIA litigation. For this reason, the FOIA request and appeal processes explained in last week’s post are particularly valuable tools for authors gathering information for their upcoming projects. But FOIA litigation provides guidance for the government on the rules and procedures of FOIA, and author-requesters too can take lessons from these decisions to better inform their FOIA requests and expectations going forward. 

FOIA Formalities: McDonnell v. United States

In 1985, author Robert McDonnell sent a FOIA request to the FBI regarding a fire that broke out on the Morro Castle Luxury Liner in 1934, about which he and his co-author Frederick Rasmussen hoped to write a book. Strange circumstances surrounded the fire, which claimed more than 130 lives and may have been set by the ship’s radio operator. The FBI conducted an investigation, but many details about it were unknown. The FBI released approximately half of the more than 1,000 pages of responsive records in response to McDonnell’s request, which revealed some new information about the incident, but it withheld many other responsive documents. For three years, the authors negotiated with the agency, sent new requests, and obtained some, but not all, additional responsive documents. Then, in 1998, McDonnell and Rasmussen sued the government in an effort to obtain the withheld pages. 

In the lawsuit, a magistrate judge held—and an appeals court subsequently affirmed—that two separate failures to meet FOIA’s formalities and procedural requirements meant that not all aspects of the requests could be litigated. First, the appeals court held that Rasmussen was not a proper party in the case, because his name was not present on any of the requests. FOIA mandates that only the individual(s) making the requests can file a lawsuit to enforce FOIA. While the court acknowledged that McDonnell and Rasmussen were co-authors, it found that this did not excuse Rasmussen’s failure to comply with the requirement. Second, the court found that, with regards to one of the later requests, McDonnell failed to “exhaust his administrative remedies,” by failing to appeal the FBI’s denial of the request before filing a lawsuit. FOIA requires requesters to file an appeal following a rejection before filing suit, and McDonnell’s failure to do so in this case effectively made the relevant request not reviewable by a court. This oversight further demonstrates that the FOIA formalities must be complied with strictly, and moreover shows the potential unfortunate consequences of failing to do so.

Disclosures Behind the Scenes: Stein v. United States Department of Justice

In 2012, Alan Stein, an author and activist from Alaska, sent several FOIA requests to the Department of Commerce. Stein’s request concerned an investigation of a legislative aide who admitted to falsifying fishing records in his previous position as a fishing vessel operator and was subsequently incarcerated after resigning from his legislative aide position. The Department of Commerce failed to provide a “final determination” within 20 business days as required by FOIA, and indeed did not do so for years in some cases. After Stein’s attorney filed a complaint in 2015, the Department of Commerce quickly began “working in good faith” with Stein to release “thousands of pages of documents.” Stein was satisfied with the result but lamented that he had to spent four years waiting for documents that were apparently not exempt under FOIA. 

Stein’s case demonstrates that, in some cases, filing a complaint can spur an agency to produce records it has failed to produce in response to requests and appeals. Filing a complaint can lead an agency to begin working with a requester “behind the scenes” where it otherwise may not have done so. While this made things easier for Stein, who did not have to wait for the outcome of court proceedings to get the records he needed, it also demonstrates the unequal footing this practice can place requesters in. Authors who lack the resources to obtain legal counsel to actually file the lawsuit may be left with little or no recourse when an agency refuses to comply with its FOIA obligations. While Stein’s quick behind the scenes resolution meant his legal fees were not as high as he might have anticipated, there was no guarantee of a speedy outcome. 

Commerciality and Authorship: Campbell v. United States Department of Justice

In 1988, author James Campbell was working on a biography of renowned author and civil rights leader, James Baldwin. As part of Campbell’s research, he sent a FOIA request to the FBI for any information it held on Baldwin. A year later, Campbell filed suit in an effort to expedite the request, which FOIA allows for when there is an urgency to inform the public about government activity, among other limited circumstances. While a court declined to order the FBI to expedite the request, the FBI did eventually turn over more than 1,000 pages on Baldwin to Campbell. In 1991, Campbell published his biography, which was well-received (a second edition was published in 2021), and was based in part off the FBI records he had finally obtained.

Yet the litigation would continue for another decade, as Campbell tried to obtain more records on Baldwin and sought to recover some of the copying fees the FBI had charged him during the course of their response to the request. While agencies are permitted to charge requesters fees for copying and time incurred searching for the responsive records, a “fee waiver” provision exists in the statute which seeks to ease this burden for certain requesters. When considering a fee waiver request, which Campbell had made, agencies are asked to consider whether disclosure is in the public interest and would contribute to an understanding of government activity, or whether the request was primarily in the requester’s “commercial interest.” The FBI argued that Campbell certainly stood to benefit commercially from the request, holding up his commercially-available published book as evidence. The court found that this position was inconsistent with the spirit of the fee waiver provision, which is intended to help scholars whose research contributes to the public’s understanding of government activity. It added that it would make little sense to require these scholars to forego compensation for their work in order to take advantage of the fee waiver provision, and that the “quasi-commercial nature” of Campbell’s endeavor should not weigh against his ability to obtain a fee waiver. 

This case demonstrates the strong protections for works of authorship about matters of public concern, a principle underlying many judicial doctrines. While such protection is far from absolute, it supports liberal applications of the fee waiver provision, underscoring the importance of writing about matters of public concern for the courts and federal agencies.

The Freedom of Information Act and Authorship

Posted September 14, 2021
Photo by Brandon Mowinkel on Unsplash

The Freedom of Information Act (“FOIA”) is a federal statute that allows members of the public to request non-public documents from the federal government. Documents authored by the federal government are considered part of the public domain when it comes to copyright law, and FOIA is similarly premised on the idea that people have a right to know what their government is up to. FOIA requests are a key part of the investigative process for many journalists, but FOIA can be an incredibly useful research tool for many types of authors, as it enables access to new, primary sources of information about federal government activity. 

In today’s blog post, we will introduce FOIA and explain how authors can benefit from this law. Next week, we will discuss FOIA litigation involving authors in order to offer takeaways for authors interested in using FOIA in the course of their research and writing.

What is FOIA?

The Freedom of Information Act was enacted into law in 1967. Under the Act, anyone can request documents produced and/or held by a federal government agency—such as the IRS, State Department, NASA, or ICE—which is obligated to turn over any documents it possesses that fall within the scope of the request. FOIA has enabled requesters to obtain investigative files compiled by the FBI, e-mails between certain government officials, and data collected by federal agencies, for example.

However, an agency may withhold or redact documents if they fall into one of nine delineated “exemptions” to FOIA. Broadly speaking, the exemptions protect national security interests, the integrity of ongoing law enforcement investigations, inter-agency deliberations, confidential commercial information supplied to the government by private entities, the privacy of individuals and law enforcement officials, and information that is exempt from disclosure under another federal statute. FOIA only applies to the executive branch of the federal government, meaning that it does not apply to the courts or Congress, nor does it apply to state governments. However, every state has its own public records law which allows requesters to obtain state government records under similar procedures. The procedure for filing a FOIA request varies by federal agency, but most can now be submitted online, via an online form on an agency’s website or via email. If you are interested in filing a FOIA request with a federal government agency, the federal FOIA website can direct you towards the right web form or point of contact.

Once a request has been made, the relevant government agency is required to issue a response within 20 business days, otherwise the request can be considered to be “constructively denied,” that is, denied based on the agency’s lack of response. The agency’s response, if one is provided, can grant the request in full, grant it in part and deny it in part, or deny the request in full. Then, the requester has an opportunity to appeal the agency’s response by sending another communication explaining why the request should not have been denied, in what is known as an administrative appeal. If the requester is not satisfied with the agency’s response to the appeal, they may file a lawsuit against the government agency to which the request was sent to enforce FOIA and try to compel the agency to produce the requested documents.

FOIA for Authors

Under FOIA, any person or entity (like a university or commercial business) can make a request, regardless of citizenship or the motivation for sending the request. Yet the FOIA statute does contain some protections for certain types of requesters, including journalists and authors.

First, FOIA provides for “expedited processing,” whereby an agency must respond in 10 business days, rather than 20, in some circumstances. One such circumstance of relevance to authors is when the requester is a “person primarily engaged in disseminating information” and there is an “urgency to inform the public concerning actual or alleged Federal Government activity.” This provision has typically been applied to journalists, but authors have requested expedited processing under the provision as well.

Second, FOIA allows for a “fee waiver” that excuses certain requesters from having to pay fees for copying and staff time employed performing a search for the records requested (though requesters may have to pay for copying costs incurred in excess of $100). Members of the news media are entitled to a fee waiver under the statute, as are “educational [and] noncommercial scientific institutions, whose purpose is scholarly or scientific research.” Authors affiliated with academic institutions are often granted such a fee waiver. To receive a fee waiver, an author must actually request one in their request, so it can be a good idea to ask for one if you think you might fall into either category. As a practical matter, it never hurts to ask!

One potential downside of FOIA as a research tool for authors is that the timing of an agency’s response can be somewhat unpredictable. While FOIA mandates that an agency must issue a final response within 20 business days, in practice, FOIA requests often languish for much longer than this, and in some cases, patience will eventually yield results. Yet writing projects often have their own timelines and deadlines, making it difficult to plan around the outcome of FOIA requests.

On the other hand, advancements in technology have in many ways made FOIA more accessible to authors and other requesters of government documents. In 1996, the Electronic Freedom of Information Act Amendments of 1996 were enacted into law. These amendments require agencies to make their “reading room” records available online, and encourage agencies to send records electronically wherever possible, among other electronic record-friendly provisions. Today, most responsive records are sent to requesters electronically, though there are exceptions. The E-FOIA amendments encourage agencies to send records in a more accessible, digital format. They have also had the effect of decreasing the delays and costs associated with copying and mailing physical documents, making FOIA more usable to authors and the general public.

Copyright Office Report: Copyright and State Sovereign Immunity

Posted September 7, 2021
Photo by Markus Winkler on Unsplash

Last week, the Copyright Office released a report on Copyright and State Sovereign Immunity, concluding its year-long study on the topic. Sovereign immunity is a doctrine that makes states and state entities immune from lawsuits under federal law in some cases. Congress sought to eliminate sovereign immunity in the copyright context in a 1990 federal law, which was overturned by a 2019 Supreme Court decision. In response, Senators Leahy and Tillis asked the Copyright Office to conduct a study to determine whether copyright infringement by state entities is an ongoing problem warranting a new legislative remedy. The report is a culmination of that effort.


State sovereign immunity immunizes states and state entities—like state government agencies, public hospitals, and state universities—from lawsuits under federal law without their consent, with roots in the Eleventh Amendment to the U.S. Constitution. But state sovereign immunity is not absolute, and can be modified or eliminated in some contexts. In 1990, Congress passed the Copyright Remedy Clarification Act (“CRCA”), which sought to eliminate state sovereign immunity with regards to copyright claims, known as abrogation, under the authority of the Intellectual Property Clause of the Constitution.

The validity of the CRCA was recently examined by the Supreme Court in Allen v. Cooper. The case concerned the state of North Carolina’s use of copyrighted images of a pirate ship found off the coast without permission from the photographer rights holder. The Court held that Congress lacked the authority to abrogate sovereign immunity under the Intellectual Property Clause, making the attempt to do so in the CRCA invalid. The Court also noted that Congress could have abrogated state sovereign immunity with regard to copyright claims under its 14th Amendment powers, but that the way it did so with the passage of the CRCA did not meet the requirements of its 14th Amendment powers. Under the 14th Amendment, Congress must enact legislative solutions that are “congruent and proportional” to the problems it seeks to address. The Court held that the record before Congress did not show the widespread, intentional infringement which would justify the total abrogation of sovereign immunity for copyright claims in the CRCA.

In response to the decision in Allen v. Cooper, Senators Leahy and Tillis asked the Copyright Office to investigate the topic of sovereign immunity for Copyright. In June 2020, the Copyright Office issued a notice of inquiry announcing a study to “evaluate the degree to which copyright owners are experiencing infringement by state entities” and the extent to which these infringements are “based on intentional or reckless conduct.” The Copyright Office also asked whether other remedies available to rights holders under state law were adequate to address the problem of infringement by state entities.

The Report

The Copyright Office’s new report is based on public comments, public roundtables, and its own legal research conducted during the course of its year-long study. In addition to reviewing the history of the study and relevant legal background, the report summarizes allegations of state infringement submitted in connection with the study, describes documentation provided by representatives of state entities regarding their policies for preventing and responding to allegations of infringement, and examines the extent to which copyright owners have other legal remedies against state entities if those state entities are immune to an infringement lawsuit. Finally, the Office sets out its recommendations for Congress in light of this study.

With respect to allegations of state infringement, the report reviews a total of 132 cases submitted by commenters which involve copyright infringement disputes brought against state entities, of which about 59% involve specific allegations of intentional infringement. The Office also summarized survey results from a survey distributed by Copyright Alliance, in which 115 of 657 respondents self-reported experiencing infringement by a state or state entity. The Office also summarized critiques of the survey, including its reliance on respondents’ subjective beliefs that infringement had occurred and the fact that it did not account for exceptions or defenses other than sovereign immunity that may have precluded liability. Indeed, a review of the raw survey data submitted by Copyright Alliance after the public roundtable reveals some misunderstandings about the scope of copyright and misplaced responses relating to previous court decisions in Authors Guild v. Google and Authors Guild v. HathiTrust, highlighting the unreliability of these self-reported allegations. Finally, the Office’s report discusses additional comments describing instances of alleged infringement by state entities relating to news content, music, computer programs, photographs and video, and books.

The report then turns to a discussion of state policies for preventing and responding to allegations of infringement, acknowledging that the record developed for the study indicates that many state universities and libraries have developed policies regarding the proper use of copyrighted material (though very little evidence was submitted regarding the policies of other state entities). First, commenters pointed to the Higher Education Opportunity Act (“HEOA”), which requires institutions receiving federal funding take certain measures to discourage copyright infringement. Commenters also highlighted institutional policies designed to prevent or respond to allegations of copyright infringement, educational efforts aimed at faculty, students, and other employees about copyright infringement, and cultural norms and expectations that reduce the likelihood of widespread intentional infringement by state educational institutions.

Copyright Office’s Recommendations

The Office concludes that, although the Office’s study surfaced a number of allegations of state infringement, it is far from certain that the record would be found sufficient to meet the constitutional test for abrogation. The Office acknowledges that few of the allegations that were surfaced in the study have been adjudicated on their merits. The Office further states that case law indicates that violations by states must be sufficiently numerous and serious to constitute a pattern of unconstitutional conduct, and that there is a material risk that a court could find even the “more robust record” of alleged infringement surfaced by this study insufficient to meet constitutional abrogation standards. That said, the Office indicated that, if Congress decides not to proceed with new abrogation legislation, the Office supports considerations of alternative approaches to abrogation to ensure that copyright owners have adequate relief if their copyrights are infringed by state entities.

* * *

Authors Alliance will monitor any Congressional action regarding the abrogation of sovereign immunity in the copyright context, or alternative approaches to potential infringement by state entities, and we will continue to update members and readers as new developments emerge.

Update: Fair Use in the Courts in 2021

Posted August 31, 2021
“Prince Mural” by red.wolf is licensed under CC BY-NC-SA 2.0

In April, we published a post on two major fair use decisions from this year: Google v. Oracle and The Andy Warhol Foundation v. Goldsmith. In the post, we expressed our uncertainty about how the decision in Google, which concerned a specific question related to software, would impact fair use analysis for literary and artistic works. Earlier this month, the Second Circuit answered this question, at least with regards to fair use jurisprudence in that circuit.

The Andy Warhol Foundation v. Goldsmith concerned the question of whether Warhol’s screen prints of Prince, based in part on a photograph taken by Goldsmith, constituted fair use. The court found that the works were not fair use, in large part because it believed that Warhol’s screen prints were not transformative, but instead, the same works as Goldsmith’s photograph, but with a new aesthetic. The court signaled that the screen prints were closer to derivative works based on the original photograph than fair uses of the photograph. In contrast, the Supreme Court in Google v. Oracle did find that Google’s use of Oracle’s APIs in its Android platform was a fair one, in part because the Court found the use to be highly transformative.  

After the Google decision was handed down, the Warhol Foundation requested a re-hearing in its case, asking the Second Circuit to consider whether the Google decision would change its fair use determination. The court then issued an amended decision, and for the most part affirmed its earlier ruling, reiterating that the screen prints did not constitute fair use. The court held that the ruling in Google v. Oracle did not have much bearing on determinations about fair use when it comes to literary and artistic works. The court also underscored the Supreme Court’s statement that copyright protection is weaker for functional works—like software—and stronger for literary or artistic works—like Warhol’s screen prints, further making the Google decision inapplicable to its case. 

Another small revision in the Warhol court’s amended decision was notable for its bearing on fair use: the original decision stated that derivative works were “specifically excluded” from being considered fair use as a categorical matter, but in the amended decision, the court stated that derivative works may fail to qualify as fair use, walking back its earlier statement. By leaving open the possibility that a derivative work might still be a fair use, the court reinforced the idea that fair use is a context and fact-specific determination, a principle that also animated the decision in the Google case.

For an in-depth discussion of Google v. Oracle and the original decision in The Warhol Foundation v. Goldsmith, see our earlier post.

Update: 1201 Exemption to Enable Text and Data Mining Research

Posted August 24, 2021
Abstract pattern of green oblong shapes on black background
Photo by Michael Dziedzic on Unsplash

Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, is petitioning the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining (“TDM”) research on literary works that are distributed electronically and motion pictures. Recently, we met with representatives from the U.S. Copyright Office to discuss the proposed exemption, focusing on the circumstances in which access to corpus content is necessary for verifying algorithmic findings and ways to address security concerns without undermining the goal of the exemption.

Access to Corpora for Verification

In response to suggestions from opponents that the exemption, if granted, should ban researchers from accessing text in their corpora, David Bamman, associate professor at the School of Information at UC Berkeley, shared circumstances in which a researcher would need to access text in a corpus to verify research findings. Drawing from his co-authored article The Transformation of Gender in English-Language Fiction, Dr. Bamman used two examples to demonstrate why access to the research corpus is necessary to verify anomalous research findings. First, Dr. Bamman executed code that produced all lines of text in Nathaniel Hawthorne’s The Scarlet Letter that include both female gendered pronouns and capitalized words to investigate an algorithm’s failure to identify any female characters in the novel. Second, Dr. Bamman executed code that produced all lines of text that included the word “legs” to investigate why this was one of the objects most associated with male characters in the research corpus.

As we have previously explained, while researchers do not need this exemption for the purpose of viewing the full text or images of the works that they or their institutions have already obtained lawfully, researchers must be able to verify their research methods and research results. The scale of many research projects would make verification of anomalous research findings without access to the research corpus prohibitively time-consuming. An outright ban on accessing text in the corpus would make many TDM projects impossible because researchers would not be able to interrogate the conclusions reached by the code they had developed. Moreover, the ability to view corpus text or images is consistent with the research environments of both HathiTrust Data Capsules and Google Book Search, and it is consistent with fair use precedent.

Security Measures

As a threshold matter, we shared our view that the approach of existing § 1201 exemptions that require reasonable security measures keyed to particular, identified risks is consistent with the decisions in Google Books and HathiTrust. In both cases, the Second Circuit identified security measures that were reasonable responses to actual risks. This is consistent with past Copyright Office recommendations that identify the risk to be guarded against, but do not prescribe the security controls to guard against it. To this aim, we suggested language to add to the exemption to more specifically define the harms that exemption users must guard against when implementing security controls—dissemination, downloading, and unauthorized access. We also explained that we not object to the inclusion of the requirement that researchers wishing to avail themselves of the exemption consult with their institution’s information technology office. Institutions of higher education are well positioned to provide this kind of advice, and it would ameliorate some of opponents’ concerns.

In addition, we discussed the various specific security controls and standards opponents advocated for in their post-hearing letters. We explained that while we continue to believe that the Copyright Office’s reasonableness approach is the right one, the intended exemption beneficiaries would still be able to avail themselves of the exemption if certain controls are imposed. These include encryption on the server, limiting access to the collection to those with a legitimate and authorized need, deletion of the collection upon conclusion of the applicable research need, and mechanisms to detect and prevent downloading of stored materials. Other security controls proposed by opponents, however, would render the exemption unusable, and we explained our concerns with these proposals to the Office.

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We look forward to working with the Copyright Office to address opponents’ concerns without undermining the purpose of the proposed exemption. The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students and faculty from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.

Library Lending, Author Incomes, and Controlled Digital Lending

Posted August 17, 2021
Photo by Clay Banks on Unsplash

In the debates around controlled digital lending (“CDL”), much has been said about whether and how CDL affects author incomes. Recently, the Internet Archive requested 10 years of sales data during the discovery phase of its ongoing lawsuit with several large publishers, seeking to support its argument that its digitization projects did not negatively impact book sales. As an authors’ group that represents the interests of authors who care deeply about their works reaching broad audiences, Authors Alliance is a unique voice in the conversation around the impact of different types of library lending on authors’ livelihoods. In today’s post, we will discuss the intersections between author income, traditional library lending, and CDL. 

How Do Authors Make Money from Library Sales?

When an author signs a publication contract for her work, she is agreeing to be compensated by her publisher pursuant to the terms in the contract. The two main ways authors are paid are through an “advance against royalties”—an upfront payment or payments made when the contract is signed, the manuscript is delivered, and/or when the book is published—and through royalty payments. Once any advance paid to the author has “earned out” such that author royalties from sales exceed the advance paid to the author, the publisher pays the author a percentage of each sale. When a consumer purchases a book, the author then will receive a percentage of the sale based on the royalty rate set in her publication contract. 

Like members of the public, libraries purchase books, and when they do so, authors are entitled to royalties on those sales. Importantly, libraries have purchased and lent books to patrons since time immemorial. In fact, in the mid-20th century, public libraries were the most reliable market for new books. But changes in the publishing ecosystem and widespread reductions in library budgets over time have led to a reversal of this pattern—in 2015, public libraries were responsible for just over 1% of book sales. 

Once a library owns a physical book, the library is permitted to lend it out as many times as it likes, based both on public policy and what is known as the “first sale doctrine.” First sale doctrine is based on a provision within U.S. copyright law that allows the owner of a physical copy of a copyrighted work, like a book or DVD, to sell, lend, or otherwise dispose of that copy however she wishes, provided that it does not infringe any of the copyright holder’s exclusive rights. For example, the owner of a copy of a book can lend it out to her friend, lend it out to another friend after the first friend has returned it, and then give it away to a third friend. On the other hand, the owner of a copy of a book cannot make multiple copies to share with her friends simultaneously without infringing on the copyright holder’s exclusive rights of reproduction and distribution. Because of public policy favoring libraries’ roles in the knowledge ecosystem and the first sale doctrine, libraries can lend out copies of books they have purchased as many times as they are able.  

How Does Traditional Library Lending Impact Author Income?

As discussed above, library lending results in author income when the libraries buy books in the first instance. But the effect of library lending on consumer book sales, has, perhaps surprisingly, not been the subject of extensive researchas of 2019, there had never been a major study on the impact of library lending on the publishing industry as a whole, but there has long been evidence that library patrons also purchase books, and may even do so more frequently than non-library patrons. In a 2020 survey, nearly a third of consumer respondents reported purchasing a book that they first found in a library, a number that was even higher for avid readers. 

Library advocates have long championed the ability of libraries to bring attention to authors and their works, which often results in increased income for those authors. Many libraries host author events in which an author’s books are available for sale to attendees, and these events often result in more demand for that author’s books at the library, leading the library itself to purchase more copies, resulting in more author income. Libraries are also known to increase discoverability of books, both through author events and by exposing patrons to new books and new authors in other ways. In the 2020 survey mentioned above, 30% of respondents reported that, when a book they wanted to read was unavailable at their local library, they purchased the book, either online or at a local bookstore. 

How Does Controlled Digital Lending Impact Author Income?

Controlled digital lending is a lending model many libraries across the country have implemented in recent years to increase access to works in their collections. CDL involves a library scanning a physical book it has purchased and is already in its collection, and then lending out this scanned copy in lieu of the physical book. Under the CDL model, libraries are not permitted to lend out more digital copies than they have physical copies at one time. This so-called “owned to loaned ratio” ensures that CDL stays within the bounds of what the first sale doctrine permits: each copy may be loaned out to only one patron at a time. Because libraries have already purchased the physical copies, authors have already received any royalty income they were entitled to from the sales. 

Similar to interlibrary loans, CDL makes works available to readers who cannot access the physical spaces where the books are held. In this way, CDL operates as an analogue to traditional print lending: rather than a library patron having to physically travel to a library to check out the book they want to read, they can receive a digital copy loan instead, which comes with the same controls as print lending—limited check out times and a maximum number of loans at one time based on the number of copies the library has purchased. CDL seeks to replicate digitally what is difficult to achieve with physical books: sending a book to a reader who is interested in reading it, wherever she may be located, within the confines of limited library budgets. Many have also argued that CDL also constitutes a fair use, further bolstering the legal basis for the practice. 

The role of CDL in the library ecosystem has taken on a new prominence during the COVID-19 pandemic, when libraries have reduced hours or shuttered physical spaces altogether. Over the past year and a half, CDL has served as one important way to bridge the gap and ensure readers can still access library books despite these limitations. And importantly, due to the requirement that a library purchase a print book in the first place and the limitations put in place to ensure that each loan is discrete and temporary, CDL does not hurt author incomes. In fact, due to libraries’ roles in increasing the discoverability of books, particularly when they are digitized, CDL may even result in more sales for authors whose books have been made available in this way.

Authors Alliance has long supported CDL as a way to help books reach readers. Many individual authors also support CDL, as it helps works reach readers who otherwise could not access them, bringing reputational benefits and the potential to increase book sales to consumers.