The Copyright Office is poised to issue a total rewrite of Section 108 of the Copyright Act, which protects library and archives’ copying for preservation and research. Libraries and archives have said they do not want this, but the Office seems to be determined to do it. So, a group of Deans and Directors of Virginia university libraries has sent a letter to House Judiciary Chairman Bob Goodlatte (R-VA) to ensure he realizes the controversy and context that surrounds the Office’s proposed changes. If you are a concerned library or librarian, consider writing your representative, especially if they sit on the Judiciary Committee.

John Unsworth, the Dean and Director of the University of Virginia Library (my new boss — welcome, John! — at my new workplace — wahoowa!), joined with his colleagues at William & Mary, Virginia Tech, George Mason, and VCU, to send an important letter to House Judiciary Chairman Bob Goodlatte [the morning of August 16, 2016]. Some basic background on this letter is available at the UVA Library News blog. Below is a little more context on the Copyright Office, Section 108, and copyright reform generally. These are my personal opinions, of course; I’m speaking here only for myself.

The Copyright Office

The Copyright Office is a complicated place. Some very smart and dedicated professionals work there, and the work they do to develop and maintain an authoritative record of copyright ownership is increasingly crucial (not to mention underfunded, under-resourced, underappreciated, etc.). The Third Compendium of Copyright Office Practices is a cornucopia of useful information about copyrightability that more lawyers should consult before, say, suing over a photo taken by a monkey.

But as a political entity (advising Congress and various other government entities on matters of copyright law and policy), and in its few regulatory duties (primarily the triennial DMCA rulemakings) the Office seems to have an alarmingly consistent bias in favor of copyright holders. Given a choice, the Office tends to impose roadblocks to access rather than limit the prerogatives of the content industries.

Register of Copyrights Maria Pallante summarized her attitude toward copyright limitations and exceptions in a frank interview with the American Bar Association’s Landslide magazine (which lives behind a paywall somewhere, but is ably summarized by Mike Masnick here):

“It is my strong view that exceptions and limitations are just that – they are important but they must be applied narrowly so as not to harm the proprietary rights of the songwriter, book author, or artist. Copyright is for the author first, and for the nation second.”

Section 108 “Reform”

Since virtually everything libraries do, from lending to preservation, relies on one or more of these limitations and exceptions, you can imagine how libraries felt when they learned that the Office was moving forward with a total rewrite of Section 108 of the Copyright Act, a provision that permits a host of core library functions, from inter-library loan to preservation.

You don’t have to imagine, actually: there was a prompt expression of concern from the Library Copyright Alliance, which speaks for thousands of libraries and librarians, and another from the Society of American Archivists, the leading professional association of archivists in this country. Other important voices, including Kevin Smith, Dean of Libraries at the University of Kansas, and Lila Bailey, counsel for the Internet Archive, have joined in expressing confusion that the Office is determined to “update” a law that libraries and archives (the named beneficiaries of the provision!) say is working fairly well.

Many libraries also accepted the Office’s invitation to meet one-on-one and express our misgivings directly to staff working on the rewrite this summer. I had a meeting with the Office in early July, and I know of more than a dozen other library representatives who traveled to DC or had conference calls with the Office to express concern.

Although these meetings were grounded in diverse local experiences, I believe we all shared stories that revealed an overarching truth: Section 108 is working, especially in combination with fair use. Many of us also pointed out that the evidentiary basis for revision in the Office’s Notice of Inquiry is stale and flimsy:

• an inconclusive “study group” process that has since been repudiated by libraries
• remarks made at a one day symposium at Columbia Law School (where, for example, the question “To What Extent Should Libraries be Permitted to Engage in Mass Digitization of Published Works, and for What Purposes?” was discussed for 1.5 hours by two librarians, a lawyer for publishers, and the Exec. Director of the Authors Guild—I live-tweeted it (with drawings!) when I worked at ARL), and
• a closed-door, informal “reconvening” of some members of that same old study group.

Please, we told them, don’t go through with this revision based on such flimsy evidence. The risk and trouble of preventing anything awful from happening far outweigh the possible benefits of the few modest updates on offer. The impression among all of us who had these meetings, unfortunately, is that there was nothing we could say that would prevent the Office from moving forward.

The Copyright Office folks I met with said they had scheduled approximately 40 meetings on this issue, and of course not all of those meetings were with libraries. We will never know what our rightsholder friends said, however. The Office has committed only to releasing a list of attendees at these closed-door meetings, not a summary (much less a detailed report) of the substance.

The Rightsholder Agenda for Section 108 Revision

We can certainly make some educated guesses about what publishers, movie studios, and others might want from a rewrite of Section 108. In its ill-fated lawsuit against the HathiTrust and several member libraries, the Authors Guild argued that Section 108 should describe the outer limit of library activities in the areas it treats. Libraries cannot, the Guild argued (citing a report from 1983 by—surprise!—the Copyright Office), rely on their fair use rights to do things that 108 does not permit. Since Section 108 permits creation of just three copies for preservation, and only in certain limited circumstances, HathiTrust should not be allowed to create additional copies for preservation, or to use them in ways 108 does not anticipate.

Thankfully, Judge Harold Baer in the Southern District of New York and the panel on the Second Circuit Court of Appeals know how to read a statute, and they understood the plain text of Section 108(f)(4) of the Copyright Act:

“Nothing in this Section…in any way affects the right of fair use….”

Hence the courts barely dignified the Guild’s arguments with more than a footnote citing the statute.

But rightsholder groups like the Association of American Publishers and the Motion Picture Association of America argued in amicus briefs that HathiTrust should not be allowed to preserve, facilitate new modes of research, or provide equitable access to the print-disabled using digitized books, because unspecified “market-based solutions” to these core library functions might develop some day if courts reject fair use and shut down library projects. The publishers even argued that libraries’ fair use rights were preempted by the fact that the Copyright Office was considering revising Section 108.

(The lawyer who made that argument for AAP, by the way, is Mary Rasenberger, a former Senior Advisor for Public Policy at… the Copyright Office, where, among other things, she facilitated the failed “study group” report that the Office proposes to use as an input for its current revision. Now Rasenberger is Executive Director of the Authors Guild, and she characterizes her career thus: “I’ve focused most of my career on authors’ rights.”)

At that meeting at Columbia Law School, rightsholder representatives suggested repeatedly that fair use had gotten out of control, and that libraries needed a revised Section 108 that would give them a clear boundary for safe and responsible behavior.

So, we know that rightsholder groups think fair use should be limited by Section 108 (and in particular, by a new Section 108 to be written by the Copyright Office with substantial input from rightsholders). We know they believe their right to develop hypothetical future market solutions should trump libraries’ pressing mission to preserve, facilitate research, and provide equitable access to knowledge. We also know that the Register of Copyrights thinks these groups are the “first” beneficiaries of copyright, and that their “proprietary rights” must not be “harmed” by limitations and exceptions. Put it all together and you don’t need a powerful imagination to envision how badly things could go if the Copyright Office works with rightsholder groups to rewrite the laws that protect libraries and archives.

108 Reform in Congress

Since it seems that the Copyright Office cannot be deterred from issuing its rewrite of Section 108, libraries’ and archives’ best recourse now is to weigh in with Congress and let them know our concerns. The House Judiciary Committee, under the leadership of Chairman Goodlatte, has been examining copyright law systematically for the last couple of years in anticipation of some kind of legislative change. Chairman Goodlatte announced recently that he and his staff are looking for areas where change is appropriate, and are hoping to release proposals in the coming months. The Copyright Office is looking to release its draft revision of Section 108 in time to feed into the Chairman’s process.

Copyright reform, for good or ill, is governed by the “iron law of consensus”: nothing gets done without “buy-in” from all key constituencies. Indeed, Chairman Goodlatte said that consensus is what he’s looking for as he tries to decide which parts of the law to revise. Libraries and archives are a key constituency, here, if ever there was one. So, we must let our representatives know that we are not bought in.

The Virginia Libraries Letter

It was toward that end that Dean Unsworth of the UVA Library joined with his colleagues at GMU, William & Mary, Virginia Tech, and VCU to send a letter to House Judiciary Committee Chairman Bob Goodlatte (R-VA), expressing grave concerns about revising Section 108. The letter explains that the statute is basically working for our libraries, despite its age, and highlights some of the cool things that Virginia libraries are doing under current law.

Among those things is the preservation and rendering digitally accessible a trove of news footage documenting life in Roanoke from the 1950s into the 1970s. Current Roanoke residents (who are, coincidentally, constituents in Chairman Goodlatte’s district) might enjoy perusing the WSLS archive to see how life changed in Roanoke, VA, over the course of those years, from civil rights to soap box derby races.

They should hurry over to the WSLS archive site now, though; if the Copyright Office and Congress start revising Section 108, that footage and many other vital documents of Virginia history could end up locked in a dark archive.

Editor’s note – this posting is republished with the permission of the author, via his tumblr posting – August 16, 2016.