In today’s post, as a part of our series of open access success stories that spotlight noteworthy openly accessible books and their authors, we’re featuring Peter Kaufman of MIT Open Learning. Kaufman made his new book, The New Enlightenment and the Fight to Free Knowledge, available for free under a CC-BY license upon its publication by Seven Stories Press. In the book, Kaufman discusses “the powerful forces that have purposely crippled our efforts to share knowledge widely and freely.” By releasing his work under an open access license, Kaufman has pushed back on these forces while also ensuring that his work reaches a wide audience. You can find the open access edition of the book here.
Authors Alliance: Can you tell us why you opted to make The New Enlightenment and the Fight to Free Knowledge openly available?
Peter Kaufman: My book is about the forces that have constrained our access to knowledge in the modern world, some of the angels that have fought to increase that access, and some of the monsters that continue their efforts to suppress it. The book was made available from the very date of publication as a downloadable free edition – and under a CC-BY license, to boot, which allows for the broadest use and reuse possible. My publisher, Dan Simon of Seven Stories Press, is a progressive deeply committed to releasing “works of the radical imagination,” as he puts it – and to media experimentation of the kind we all support.
AuAll: Did your audience or the subject matter of your book influence your decision to publish openly?
PK: Yes, beyond the history in the book – it opens in the 16th century – and the contemporary debates that I cover from the 20th century on, I’m addressing progressives who benefit from encouragement and example, and those on the fence about the many advantages – social, cultural, economic – of open access. I have been a long-time OER advocate and work at MIT Open Learning – the pearly gates for open access in higher education.
AuAll: What results have you seen from publishing your book openly?
PK: Because of the subject matter but also because of the license, the book launched with public online discussions at law schools, book stores, libraries, universities, and other organizations at the cutting edge of the freedom-to-know, including the Internet Archive and Creative Commons. A program with Wikipedia is forthcoming. I believe that the progress resulted in numerous social media impressions that otherwise we would not have seen – and postings by advocates in media reform, copyright reform, and free software.
AuAll: Could you share some lessons learned or other suggestions for authors?
PK: Do it. My book makes the point that in the end – in the long term, as John Maynard Keynes used to say – we all wind up in the public domain. Accelerate that process. Gain new readers. Get the right kind of attention. Find like-minded advocates. Contribute knowledge freely to the world a little faster than you otherwise would have.
Earlier this month, Authors Alliance released a brand new guide—the Authors Alliance guide to Third-Party Permissions and How to Clear Them. In today’s post, we will share some of our favorite tips and tricks from our guide on how authors might approach the permissions process and troubleshoot when they encounter difficulties. If you’d like to learn more, check out our new guide, available under a CC-BY license for you to download and share.
Start early, but not too early. Because getting permission from rightsholders to use third-party materials in your work can take some time, it is prudent to start early, as the process can take anywhere from days to months. But clearing permissions too early in your writing process can pose its own risks: in some cases, third-party materials end up being edited out of a book during the publisher’s editing process, and if authors have already cleared and paid for these permissions, they have assumed financial burdens that turned out to be unnecessary. For this reason, it is prudent to coordinate with publishers to ensure authors understand their permissions timeline.
You have allies. Authors tasked with clearing permissions may find the process daunting, as it is intimately related to the legal aspects of publishing, but often the responsibility of the author, who may understandably lack the legal sophistication of publishers. But it is important to keep in mind that publishers share an author’s goal of seeing their work published and successful. While a publisher may not be able to undertake the permissions process on an author’s behalf, they may be able to provide suggestions, form permission letters and logs, and other helpful information if you find yourself stuck. Similarly, academic scholarly communications offices and authors groups like Authors Alliance exist to support scholars and authors, and can sometimes provide general guidance or field questions.
Don’t be afraid to negotiate. Like a publication contract, a permissions agreement is a legally binding contract that can be enforced in court if it is breached. This means that the terms of the permission agreement are quite important, and it is prudent for authors to take care to understand these terms in order to avoid exposing themselves to liability. It also means that like publication contracts, permissions agreements can be negotiated. Authors should feel empowered to negotiate with rightsholders on fees and other terms, and in fact, authors who come to the table prepared to explain their position may be more likely to convince a rightsholder to compromise.
Remember fair use. As we discuss in our guide, the doctrine of fair use permits authors to use third-party materials in their own work without permission in some circumstances. For authors who think they may be able to rely on fair use, our permissions guide provides an overview of how an author might think through these issues. Authors who want to learn more about fair use can also check out our guide to Fair Use for Nonfiction Authors for a more in depth discussion of the doctrine.
Consider creative workarounds. When an author is not able to obtain the permission they need to make use of a particular third-party work, they may have other options that can still enable them to reach their goals for their works. Publicly licensed works, works that are in the public domain, and original commissioned works can serve as adequate substitutes in some cases.
Last week, the Department of Justice announced that it was filing an antitrust lawsuit to block Penguin Random House, the largest major trade publisher in the country, from acquiring Simon & Schuster, itself one of the so-called “Big Five” publishers (formerly the Big Six, until another major acquisition of Penguin Books by Random House in 2013). And this is not the first time the publishing world has been shaken up by antitrust: in recent years, the government has also initiated major antitrust lawsuits against Apple and Amazon for how these companies price e-books they sell. In the wake of these developments, authors may be asking themselves how these antitrust cases affect the publishing ecosystem and why antitrust litigation in publishing is becoming a more common occurrence. In today’s post, we will survey the landscape of antitrust publishing litigation and explain how the proposed merger of Random House and Simon & Schuster, as well as the antitrust lawsuit intended to stop it, might affect authors.
Antitrust and Publishing
Broadly speaking, antitrust law aims to protect market competition, ensuring that no one company wields too much market power. Antitrust laws have existed in the U.S. since the late 19th century, and have the goal of protecting consumer interests by ensuring that there are “strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.” In the 21st century, the consolidation of publishing houses and book distributors over time into fewer and fewer companies with larger and larger market shares has begun to raise antitrust concerns. In this way, antitrust law seems a natural fit for publishing: over the past 50 years, publishers havesteadilymerged, resulting in a market dominated by only five major players.
Antitrust and E-Book Price Fixing
In recent years, the government has used antitrust law to mount challenges to various companies’ e-book pricing practices. The most prominent case was U.S. v. Apple, in which a judge found Apple had conspired with several large trade publishers to fix e-book pricing in its iBooks store, hampering retail price competition from other e-book sellers. These publishers were also implicated in the lawsuit, but elected to settle out of court. Ultimately, Apple was required to pay more than $140 million in consumer refunds in addition to other fees. More recently, a group of e-book purchasers brought a class action lawsuit against Amazon, alleging that by keeping its pricing for e-commerce lower than its competitors under a company policy, it engaged in anticompetitive behavior with regards to e-books and other products, harming purchasers of these products.
Antitrust and Authors’ Interests: United States v. Bertelsmann
The latest antitrust lawsuit in the publishing world, U.S. v. Bertelsmann (Bertelsmann is the German company that owns Penguin Random House), proceeds on a new theory of market competition. Rather than focusing on harm to consumers of books that might result from anticompetitive behavior, the Department of Justice emphasizes the harms to authors that would be likely to occur following the proposed merger. With just four major trade publishers to choose from, authors of trade books could be at a substantial disadvantage in negotiating for the best contract terms and highest advances. This is because rather than five competitors bidding for books, there would be just four, meaning less competition and less advantageous terms for authors who publish with the Big Five.
The government explains in its complaint that a Penguin Random House and Simon & Schuster merger would give that megapublisher revenues “twice that of their next closest competitor.” The new firm would wield tremendous market power, which could in turn disadvantage smaller publishing houses that lack the resources of the Big Five. Interestingly, the complaint does not discuss the fact that the 2013 merger of Penguin Books and Random House was already an unprecedented consolidation of power in the industry, as those publishers were the two largest trade publishers at the time. While this undoubtedly reduced competition between the publishers and likely harmed authors’ incomes in the same way as the new complaint alleges, no antitrust case was brought at the time. This change in the application of antitrust law to the publishing industry may be a consequence of a change in presidential administrations or the evolution of antitrust law generally.
Other authors groups have sounded the alarm about the proposed Penguin Random House and Simon & Schuster merger, emphasizing the harm that could occur to authors’ livelihoods if the merger goes through. By grounding its antitrust case in the interests of authors, the government has echoed these concerns and signaled that purchasers of books are not the only ones who matter when it comes to ensuring fairness in the book market.
Today, Authors Alliance is thrilled to announce the release of a brand new educational guide for authors: Third-Party Permissions and How to Clear Them, authored and edited by Authors Alliance staff. We were inspired to create this guide, the fifth in our series of author guides, by the myriad questions we receive from authors about the third-party permissions process. The difficulty for many authors is that publication contracts usually place the ultimate burden for clearing permissions and paying any associated fees on the author, but the legal issues involved can be difficult to wrap one’s head around, particularly when approaching the process for the first time. We created this guide in order to fill that gap, demystifying the legal and procedural aspects that can make permissions so challenging.
Our guide walks authors through the permissions process, beginning with an overview of copyright and publication contracts to help readers understand why permissions are required in the first place. Then, we explain circumstances in which permission is not required (like when the use of third-party materials is a fair use or the materials are in the public domain) to help authors determine whether to request permission in the first place. Next, we offer some tips on how to identify and locate a rightsholder and go over the process of actually securing the permission. Finally, we conclude with a discussion of potential options for authors who are unable to obtain permission after making a concerted effort to do so.
Our new guide covers both text and image permissions, and we note throughout where these two types of permissions work differently. We created the guide with the goal of making the permissions clearance process as clear and comprehensible as possible in order to demystify a part of the publication process that can be intimidating for first time and veteran authors alike.
Our guide is available today for free as a PDF under a CC-BY 4.0 license, and will be available to purchase as a print book later this year. We are indebted to the expert reviewers, publishers, and authors who helped us make this guide a reality and ensured it reflected the realities of third-party permissions in publishing as well as serving the needs of our diverse body of members. We are delighted to bring you this new resource, and hope it helps take some of the sting out of permissions so you can focus on what really matters: creating new works of authorship that can contribute to the commons of knowledge and help you reach your goals as an author.
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.
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.
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.
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.
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.
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.
Over 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.
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.
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 (“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.