Good story, bad headline. “The Internet Archive has lost its first fight to scan and lend e-books like a library,” proclaims The Verge. In fact, U.S. District Court Judge John Koeltl ruled Friday that if the Archive wants to lend e-books, it must do so like a library — by purchasing a license and thus compensating publishers and authors for their work.
The only surprise is that Koeltl acted just a few days after a hearing in his New York courtroom. Then again, maybe it shouldn’t be a surprise. When an argument is so wrong-headed as the one advanced by the Archive, there is no reason for justice not to be swift and certain. It was ludicrous for the folks at the Archive to believe they could simply scan books they own and lend them out. I mean, why didn’t the local public library think of that?
Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society — owning, preserving, and lending books.
This ruling is a blow for libraries, readers, and authors and we plan to appeal it.
Good grief. Certainly there’s a critique to be made of the restrictive manner in which publishers make e-books available to libraries. But simply ignoring the law is not a smart strategy for dealing with that. I just hope the Archive is able to survive this incredibly wrong-headed gamble.
Simply as a matter of copyright law, I’m afraid that the Internet Archive — one of the most valuable corners of the internet — is about to fall off a cliff, taking with it our access to countless old websites, newspapers and other content.
Let me explain. On Monday, a federal judge in Manhattan heard opening arguments in a lawsuit brought by four major book publishers who argue that the Internet Archive is violating copyright law by digitizing books in its possession and lending them for free. Blake Brittain reports for Reuters that the proceedings did not appear to go well for the Archive, with U.S. District Judge John Koeltl asking “pointed questions.”
“You avoid the question of whether the library has the right to reproduce the book that it otherwise has the right to possess, which is really at the heart of the case,” Koeltl reportedly told the Archive’s lawyer, Joe Gratz. “The publisher has a copyright right to control reproduction.” Yikes.
The Archive ramped up its lending during the COVID-19 pandemic and has not cut back even though life has more or less returned to normal. The Archive argues that it’s doing what any library does — it’s lending books that it owns, and it’s controlling how many people can borrow a book at any given time. In other words, it’s not simply making electronic versions of its books available for mass download. That may show some desire to act responsibly on the Archive’s part, but that doesn’t make it legal.
By contrast, a library typically buys one or more hard copies of a book and lends them out, or buys the right to lend e-books to its patrons. The operative word in both cases is “buys.” Money changes hands. Publishers and authors are compensated. Buying a hard copy of a book, digitizing it without any additional payment, and then lending it out is illegal, regardless of whether the lending is controlled or not. I find it kind of stunning that the Archive would put its entire free service at risk over such an obviously wrong stand.
“If this conduct is normalized, there would be no point to the Copyright Act,” Maria Pallante, chief executive of the Association of American Publishers, told (free link) Erin Mulvaney and Jeffrey A. Trachtenberg of The Wall Street Journal. Indeed, the Journal story notes that Google won its own legal battle over Google Books only by limiting what you can find to snippets of books, not the entire text.
I should point out that the Archive is not without some powerful friends of its own. The Electronic Frontier Foundation is providing legal assistance. In addition, Inside Higher Ed published a commentary written by a number of Archive supporters who argue that the Archive is a legitimate library, and that its “controlled digital lending” system, which limits lending to one user at a time, is covered by the fair use provision of copyright law.
“The argument that the Internet Archive isn’t a library is wrong,” according to the Inside Higher Ed essay. “If this argument is accepted, the results would jeopardize the future development of digital libraries nationwide.”
Oh, and by the way: Inside Higher Ed limits users to five free articles a month before you have to pay for a subscription — which, of course, it has every right to do.
I looked up my own books and found that two of the three, “Little People” (2003) and “The Wired City” (2013), are available for borrowing. I don’t mind. Whatever economic value they had has long since expired, and if someone would like to read them for free without using a traditional library, that’s fine. But I certainly would have objected during the first couple of years after they were published. Rodale paid me a decent advance for “Little People,” which funded the time off I took in order to research and write it. “The Wired City” was published by the University of Massachusetts Press, an academic publisher that survives from sales to libraries, both in hard copy and electronic form.
The Internet Archive is a godsend. Just recently I used it to look up the original version of a New York Times editorial that prompted Sarah Palin’s unsuccessful libel suit. The Archive has also digitized nearly every print edition of The Boston Phoenix through an arrangement with Northeastern University, which holds the copyright thanks to the generosity of Stephen Mindich, the late publisher. Along with Wikipedia, the Archive is one of the last uncorrupted places on the internet.
Ideally I’d like to see the Archive work out an arrangement with the book publishers that might limit but not shut down its book-lending program. My fear, though, is that this is headed for a very bad end.
Despite a ruling by the state’s highest court that the Southborough select board violated a woman’s free speech rights by shutting her down after she referred to a member as a “Hitler,” local governmental bodies can still enforce rules of decorum — as long as it’s done in a content-neutral manner.
The ACLU of Massachusetts has sent a letter to the Massachusetts Municipal Lawyers Association and the Massachusetts Association of School Committees offering guidance on how to proceed following the Supreme Judicial Court’s Barron v. Kolenda decision, which found that a local bylaw requiring “civility” violated both the state constitution and the First Amendment.
“Wehope to worktogetherto maintainpeaceable and orderly meetingsandtopreserveconstitutionally protected input by the public,” according to letter, signed by state ACLU executive director Carol Rose and senior and managing attorney Ruth A. Bourquin. The letter adds: “We understand that there is much to digest in the Court’s opinion and that some public bodies fear the decision will lead to disorderly public meetings. This fear is not warranted.”
The heart of the letter are 10 specific guidelines that local officials can follow in keeping unruly members of the public from getting out of hand. Some of them were outlined by the SJC itself — time limits for public comment and for individual speakers as well as rules that forbid speakers from interrupting each other. Some go beyond that. For instance, the letter says that rules preventing anyone from speaking unless recognized by the chair are lawful, as are limits to topics that are within the jurisdiction of the public body. Needless to say, anyone who threatens violence can be ordered to leave.
As someone who used to spend a considerable amount of time reporting on such meetings back, I think the ACLU’s guidelines contain a lot of common sense, and I hope local officials will take them to heart. Probably nothing could have prevented Louise Barron from calling Southborough select board member a “Hitler.” She was, after all, protesting what she regarded as the board’s violations of the state’s open meeting law, which is a legitimate topic. But if the board had rules in place stating that she couldn’t speak until recognized and was limited to five minutes, the damage would have been contained.
None of this should minimize how vile Barron’s comments were. Her behavior that night was loathsome. Frankly, even though the SJC made the correct decision, Barron should have apologized rather than filing a lawsuit to defend her own disgusting behavior.
The John Adams Courthouse, home to the Supreme Judicial Court. Photo (cc) 2008 by Swampyank.
The grotesque incivility of the age has caught up with local government. The state’s Supreme Judicial Court ruled last week that a bylaw in the town of Southborough that requires members of the public to act with “civility” when addressing officials was a violation of the Massachusetts Constitution as well as the First Amendment.
It’s hard to disagree. In fact, three years ago I gave a New England Muzzle Award to the president of the town council in Exeter, Rhode Island, for sponsoring a rule requiring “decorum” from people who appear at public meetings. As I wrote for GBH News, “It should be possible to exercise some control over a public meeting without an ordinance that tramples on the First Amendment.”
I haven’t changed my mind, and I think the SJC did the right thing in ruling against Southborough officials. But wow. The unanimous decision, Barron v. Kolenda, was written by Justice Scott Kafker. Adam Gaffin, who covered the case for Universal Hub, reports:
At issue was a 2018 meeting of the town Select Board when the chairman cut short the regular public-comment period after a local gadfly, upset about both a potential tax increase and a state determination that the board had earlier and repeatedly violated the state Open Meeting Law, called the chairman “a Hitler” twice (to which he replied she was “disgusting”). He cited the town’s “civility” bylaw, which requires statements to be “respectful and courteous, free of rude, personal, or slanderous remarks” and which bars shouting and “inappropriate language.”
The SJC ruled that the select board had engaged in “viewpoint discrimination” on the grounds that favorable comments about the board would not have similarly been shot down. The court said that the wording of the bylaw goes well beyond the state constitution, which says only that the right of free speech must be exercised in “an orderly and peaceful manner.”
I could go on, but Adam’s got the story well covered, including lengthy excerpts from the SJC’s ruling. Jennifer Smith has a bit more at CommonWealth Magazine about what actually went down at the select board meeting. According to Smith, the resident in question, Louise Barron, accused town officials of “spending like drunken sailors” and held a sign; on one side was written “Stop Spending,” and the other proclaimed “Stop Breaking Open Meeting Law.” Smith continues:
Board member Daniel L. Kolenda interrupted, saying she [Barron] was starting to “slander” the town officials. He announced the public comment period would close and the board would go into recess, at which point an outraged Barron said, “Look, you need to stop being a Hitler.”
Kolenda ordered the hearing ended and cameras turned off, the SJC said. He began shouting at Barron that she was “disgusting” and he would have her “escorted out” of the meeting if she did not leave. She left and later brought suit, appealing to the high court after a lower court dismissed her claims.
The select board may control public participation to some extent, the SJC notes, by adopting “time, place, and manner restrictions” concerning the length of the public comment session, time limits for each speaker, and rules against disrupting other speakers. Because such TPM restrictions, as they are called, are viewpoint-neutral, they do not raise any constitutional issues. The Southborough ordinance, though, went well beyond that. Justice Kafker’s decision ends with this:
At a public comment session in a meeting of the board, a resident of the town thus clearly has the right to accurately complain about violations of law committed by town officials and object to other town actions, including its spending practices, and to express her views vehemently, critically, and personally to the government officials involved…. When a government official responds to a resident’s exercise of those rights by accusing her of slandering the board, screaming at her, and threatening her physical removal, it should be clear to him that his conduct is unlawful.
As I said, the SJC clearly got it right. Carol Rose, executive director of the ACLU of Massachusetts, said in a statement: “This is a major victory for free speech and participatory democracy.” But when I was regularly covering city council, select board and school committee meetings back in the 1980s, it would have been unthinkable for a member of the public to refer to a public official as “Hitler” — and, yes, there were obnoxious, uninformed members of the public back then, too. But there was also a certain level of propriety that everyone adhered to. It would have been inconceivable for anyone to invoke Hitler.
We are in a different world, now. The SJC ruling harks back to an earlier age, invoking both John Adams, for whom its gathering place is named, and Samuel Adams. Barron v. Kolenda is unlikely to be the last word on how members of the public may or may not behave in governmental forums, either in Massachusetts or elsewhere.
I want to question the prevailing wisdom about the so-called Florida blogger bill, which would require independent paid bloggers to register with the state if they write about top elected officials, including Gov. Ron DeSantis. The proposal has been described as an outrage against the First Amendment, with Noah Lanard of Mother Jones going so far as to say that the bill was inspired by Hungary’s right-wing authoritarian prime minister, Viktor Orbán.
But what if there’s something else going on here? I was struck by this article in the Tampa Bay Times in which the sponsor of the measure, Republican state Sen. Jason Brodeur, compared bloggers to “lobbyists.” The bill would require bloggers to disclose who paid them for posts about elected officials and how much they received. Failure to comply could result in fines of $25 for every day they’re late, up to $2,500.
Brodeur would exempt bloggers for news organizations, and that may help explain his intent. Kirby Wilson, who interviewed Brodeur for the Times via text message, wrote that when he asked if the bill could cover journalists who write for digital-only outlets, Brodeur replied: “If they’re paid to advocate a position on behalf of a special interest, yes.”
It seems to me that what’s going on here is that Brodeur wants to require bloggers to disclose where they’re getting their money from if they’re being paid by political campaigns and other politically oriented organizations. This is not remarkable. By law, political campaigns and lobbyists must disclose their spending. A few years ago the Federal Trade Commission was threatening to go after food bloggers who were accepting freebies to write nice things without any disclosure.
Of note is that Jacob Ogles of the website Florida Politics forthrightly portrays Brodeur as targeting “pay-to-play blog posts” and quotes Brodeur as saying: “Paid bloggers are lobbyists who write instead of talk. They both are professional electioneers. If lobbyists have to register and report, why shouldn’t paid bloggers?”
Now, let’s be clear: Brodeur is no friend of the press. He recently filed a bill that would weaken libel protections for news organizations. And the blogger bill is apparently something of a mess, with Wilson observing that the actual language contains nothing that would protect independent bloggers who aren’t lobbying on behalf of a special interest. Brodeur hasn’t even been able to find a sponsor in the Florida House.
But there may be less here than meets the eye. After all, there’s a considerable distance between requiring lobbyists who blog to disclose their political activities and the repressive tactics of Viktor Orbán’s Hungary.
The reason that Sarah Palin lost her libel suit against The New York Times was that the Times’ extraordinarily sloppy editorial page editor, James Bennet, was extraordinarily sloppy. (In an unrelated matter, Bennet left the paper after it was revealed that he hadn’t even bothered to read an op-ed piece by Sen. Tom Cotton suggesting that violent protesters be gunned down in the streets.)
Under the Supreme Court’s 1964 Times v. Sullivan standard, a public figure such as Palin can’t win a libel suit unless she can show that false, defamatory information about her was published with “actual malice” — that is, it was published in the full knowledge that it was false, or that the publication strongly suspected it was false.
That’s what makes the latest revelations in Dominion Voting Systems’ libel suit against Fox News so mind-boggling. As The New York Times reports, internal communications show that Fox stars such as Tucker Carlson, Sean Hannity and Laura Ingraham were fully aware that Donald Trump was lying about his claims that the 2020 election had been stolen. Yet they boosted those lies anyway, whose voting machines were a principal target of Trump and his allies. Dominion claims that Fox damaged its reputation and harmed its business.
As the Times story notes, Fox doubled down on the Trump camp’s claims after initially accepting his defeat — a move that resulted in many of its viewers shifting to even farther-right cable outlets like Newsmax and One America News. Fox wanted those viewers back, damn it. In a particularly revealing passage, we learn that Carlson wanted a Fox News journalist fired for tweeting the truth because it might harm Fox’s ratings:
On Nov. 12, in a text chain with Ms. Ingraham and Mr. Hannity, Mr. Carlson pointed to a tweet in which a Fox reporter, Jacqui Heinrich, fact-checked a tweet from Mr. Trump referring to Fox broadcasts and said there was no evidence of voter fraud from Dominion.
“Please get her fired,” Mr. Carlson said. He added: “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.” Ms. Heinrich had deleted her tweet by the next morning.
Ironically, right-wing figures such as Trump, Florida Gov. Ron DeSantis and Supreme Court Justices Clarence Thomas and Neil Gorsuch have all suggested that it might be time to get rid of the actual malice standard, which erects a nearly impossible barrier for public officials and public figures who want to sue media companies.
Under ordinary circumstances, Fox would be a prime beneficiary of that standard. Trouble is, the new revelations show that even Times v. Sullivan may prove insufficient to protect Fox from Dominion’s lawsuit. As Bill Grueskin of the Columbia Journalism School put it on Twitter:
It’s almost impossibly difficult in this country for a public figure to win a defamation suit.
One of the only ways to do that is to show that the defendant exhibited “a reckless disregard for the truth.”
Fox has come as close to doing that as any media company I’ve ever seen. https://t.co/rZ3dS7hOax
Gov. Maura Healey. Photo (cc) 2013 by ZGreenblatt.
Andrew Quemere, a journalist who doggedly follows open-government issues in Massachusetts at his newsletter, The Mass Dump, reports that newly minted Gov. Maura Healey may prove to be not quite the champion of Beacon Hill transparency that she claimed she would be.
No one should be too surprised — she is, after all, a two-time winner of the New England Muzzle Awards, a feature I wrote for 25 years for GBH News and, before that, The Boston Phoenix that tracked outrages against free speech. I’ll get to that. But first, the latest. Quemere’s item begins:
Massachusetts Governor Maura Healey’s administration said Monday that it will not release records from past administrations. The decision means that a vast amount of vital information about state government — including former Governor Charlie Baker’s response to the COVID-19 pandemic, the repeated safety problems at the Massachusetts Bay Transportation Authority, and the sprawling overtime-fraud scandal at the State Police — will remain secret.
Some background: Baker and previous governors declared that the state’s public records law did not cover either them or their immediate staff. Indeed, the notoriously weak law also doesn’t cover the legislative branch (see this 2020 report by Northeastern journalism students) or the judiciary, meaning that the only governmental groups that have to comply are cities, towns, the state’s executive agencies and quasi-independent authorities. (And county government, to the extent that we have county government, which we pretty much don’t.)
Healey told GBH News in December that she would end the exemption for her office — but then reversed herself, explaining, essentially, that she would take it on a case-by-case basis. Moreover, the Healey administration refused to provide Quemere with records pertaining to police and law enforcement dating back to Baker’s time in office, saying that the new, more open policy she has adopted is not retroactive.
So: Healey’s new policy of openness does not cover previous administrations; and we’re not clear what the new policy really means.
As for the Muzzle Awards, the most pertinent is from 2018, when she was singled out for upholding rulings that public information should, in some cases, remain private. Healey’s secretive approach to the people’s business when she was the state attorney general was revealed by then-Boston Globe reporter Todd Wallack, now with WBUR Radio. As I wrote at the time:
Wallack’s most startling finding: Healey’s office had upheld a ruling by the Worcester district attorney that records pertaining to the 1951 murder of a state trooper should not be made public. Healey’s decision reversed a ruling by Secretary of State Bill Galvin’s office and denied a friend of the murder victim the opportunity to follow up some leads on his own. The friend has since died.
Wallack documented numerous other examples of Healey’s penchant for siding with the secret-keepers, including her decision to appeal an order that the state police provide the Globe with dates of birth for state troopers. That would have made it possible for the paper to examine the driving records of officers who had been involved in motor-vehicle accidents. Robert Ambrogi, a First Amendment lawyer and the director of the Massachusetts Newspaper Publishers Association, told Wallack: “I would expect more based on the promises she has made about open government.”
Her previous Muzzle was less germaine: I criticized her in 2015 for filing a formal defense of “a 1946 state law criminalizing political lies aimed at influencing an election.” Go ahead. You tell me what what’s a lie, what’s a mistake and what’s political hyperbole. I wrote:
As the libertarian Cato Institute was quoted as saying in an article by the State House News Service, it can be “incredibly difficult to assess the truth of a politician’s claims, especially in the chaos of an election campaign.” A number of advocacy groups and media organizations opposed Healey, including the ACLU of Massachusetts and the New England First Amendment Coalition.
We live in a time of intense political polarization, but there is an issue that unites Democrats and Republicans: the intense desire to conduct the public’s business out of public view. Let’s hope that Gov. Healey’s first steps aren’t a sign of things to come.
A Newburyport parents group denies it’s ever called for books to be banned, then immediately calls for the banning of books. From Jim Sullivan at The Daily News of Newburyport:
A spokesperson for Citizens For Responsible Education said in an email Monday that no member of the group has ever advocated for a book to be banned.
“We have made it crystal clear that sexually explicit books should not be made available on public school property or via the SORA app to minors. If a parent or child would like to purchase books such as ‘Gender Queer,’ ‘This Book is Gay,’ etc., with their own money, then so be it. There is zero educational value to these books and a waste of taxpayer dollars. In fact, giving a child instructions on how to hook up with an adult via a sex app is dangerous on its own merits,” the email reads.
I’m going to guess that no teenager lacks information on how to use a sex app.
The U.S. Supreme Court will rule on two cases involving Section 230. Photo (cc) 2006 by OZinOH.
Way back in 1996, when Section 230 was enacted into law, it was designed to protect all web publishers, most definitely including newspapers, from being sued over third-party content posted in their comment sections. It would be another eight years before Facebook was launched, and longer than that before algorithms would be used to boost certain types of content.
But that didn’t stop David McCabe of The New York Times — who, we are told, “has reported for five years on the policy debate over online speech” — from including this howler in a story about two cases regarding Section 230 that are being heard by the U.S. Supreme Court:
While newspapers and magazines can be sued over what they publish, Section 230 shields online platforms from lawsuits over most content posted by their users.
No. I have to assume that McCabe and maybe even his editors know better, and that this was their inept way of summarizing the issue for a general readership. But it perpetuates the harmful and wrong notion that this is only about Facebook, Twitter and other social media platforms. It’s not. Newspapers and magazines are liable for everything they publish except third-party online comments, which means that they are treated exactly the same as the giant platforms.
Though it is true that an early case testing Section 230 involved comments posted at AOL rather than on a news website, the principle that online publishers can’t be held liable for what third parties post on their platforms is as valuable to, oh, let’s say The New York Times as it is to Facebook.
That’s not to say 230 can’t be reformed and restricted; and, as I wrote recently, it probably should be. But it’s important that the public understand exactly what’s at stake.
Worcester City Hall and Common. Photo (cc) 2015 by Destination Worcester.
For years, the city of Worcester withheld public records about police misconduct that had been sought by the local daily newspaper, the Telegram & Gazette. It’s already cost the hapless taxpayers big-time: Nearly a year ago, an outraged judge ruled against the city and awarded the T&G $101,000 to cover about half the cost of the newspaper’s legal fees. She also assessed the city $5,000 in punitive damages.
That outrageous misconduct, overseen by former city manager Edward Augustus, was the subject of a 2022 New England Muzzle Award, published by GBH News.
Now a three-judge panel of the state Appeals Court is asking a logical question: If the T&G was in the right and the city was in the wrong, why shouldn’t the newspaper be compensated for all or most of its legal fees rather than just half? This week that panel overturned the lower-court ruling and ordered Superior Court Judge Janet Kenton-Walker to consider increasing the legal fees she awarded, according to a report by the T&G’s Brad Petrishen, who first began seeking the records in 2018.
Petrishen quoted Associate Justice John Englander as saying: “At 10,000 feet, what happened here is the newspaper wanted to write about something and it took them three years to get the documents they wanted to write about.”
The proceedings have been followed closely by Andrew Quemere, a journalist who writes a newsletter on public records called The Mass Dump. Quemere published a detailed account this week that includes some particularly entertaining quotes from an exchange Justice Englander had with the city’s lawyer, Wendy Quinn, at oral arguments in December:
“What did the plaintiffs request or push for that they were wrong about?” Englander asked.
Quinn paused for about six seconds before asking Englander to clarify his question.
“What the heck did you spend three years and hundreds of thousands of dollars fighting over if they should have gotten [the records]?” Englander asked. “If you had a defense, I’d like to understand what the defense was.”
As Quemere notes, Judge Kenton-Walker has consistently taken the position that the city not only erred and acted in bad faith, ordering that the city turn over the documents that the T&G had sought in June 2021 and then awarding $101,000 in legal fees in February 2022.
Even so, the newspaper appealed, seeking the full $217,000 it had paid — and, as the Appeals Court panel has now ruled, it may very well be entitled to that money. Jeffrey Pyle, a Boston-based First Amendment lawyer who represented the T&G, put it this way at the oral arguments: “To cut [the fees] by 54% sends a message to public records requesters: Don’t bother suing, you’re not going to be made whole even if you win and show that the other side acted in bad faith.”
To make matters worse for city officials, the Department of Justice last November announced that it had launched an investigation to determine whether the police department had used excessive force or engaged in discrimination on the basis of race or gender, although it is not clear whether DOJ was motivated by the T&G’s reporting.
I hope the T&G gets every last dime that it spent on this case. But I should add that the newspaper’s corporate chain owner, Gannett, deserves credit for pursuing this without any guarantee that it would ever be compensated. I criticize Gannett’s cost-cutting frequently in this space, but the company and its predecessor, GateHouse Media, have always been dedicated to fighting for open government, even if it means going to court. They could have told the T&G’s editors to forget about it, but they didn’t.
Finally, a disclosure: David Nordman, who was the T&G’s editor until this past summer, is now a colleague of mine at Northeastern. We work on opposite sides of the campus, literally and figuratively: he’s the executive editor of Northeastern Global News, part of the university’s communications operation, and I’m a faculty member at the School of Journalism.
