Why the Internet Archive’s copyright battle is likely to come to a very bad end

The Library of Alexandria via Wikimedia Commons.

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.

How a former top news executive helped cover up the Reagan campaign’s misdeeds

Tom Johnson, the former top executive at the Los Angeles Times and CNN, knew about Barnes’ allegations, believed them — and never said a word. Photo (cc) 2016 by the LBJ Library.

Please see this follow-up item.

If you were part of media and political circles in the early 1990s, then you were certainly aware of sensational accusations by Gary Sick, a top national security official in the Carter administration, that Ronald Reagan’s campaign had sabotaged efforts to bring the Iranian hostage crisis to a close during the waning weeks of the 1980 presidential campaign.

Jimmy Carter suffered a landslide re-election defeat at Reagan’s hands — an outcome that might have been different if he’d been able to celebrate the return of the 52 American hostages. Indeed, it was the prospect of such an “October surprise,” Sick argued, that led Reagan operatives to intervene with the Iranians and promise them weapons from Israel if they would agree not to release the hostages until Reagan was in office.

Sick’s charges could not be proven. But, on Saturday, The New York Times published a startling account (free link) about Ben Barnes, a former aide to the late Texas Gov. John Connally, who says that he and Connally were directly involved in working to delay the release of the hostages. Connally, a Democrat-turned-Republican who had served as treasury secretary under Richard Nixon, had run unsuccessfully for president himself in 1980 and was hoping for a plum appointment from Reagan. The Times’ Peter Baker writes of Barnes:

Mr. Connally, he said, took him to one Middle Eastern capital after another that summer, meeting with a host of regional leaders to deliver a blunt message to be passed to Iran: Don’t release the hostages before the election. Mr. Reagan will win and give you a better deal.

Why now? Barnes is 84; Carter, who’s 98, has entered hospice care. In Barnes’ telling, he was suffering from pangs of conscience. “History needs to know that this happened,” Barnes told Baker. “I think it’s so significant and I guess knowing that the end is near for President Carter put it on my mind more and more and more. I just feel like we’ve got to get it down some way.”

Now, my apologies for leading with the background, which is something I always tell my students not to do. Buried deep within Baker’s story is a massive media scandal. Get a load of this:

Mr. Barnes identified four living people he said he had confided in over the years: Mark K. Updegrove, president of the L.B.J. Foundation; Tom Johnson, a former aide to Lyndon Johnson (no relation) who later became publisher of the Los Angeles Times and president of CNN; Larry Temple, a former aide to Mr. Connally and Lyndon Johnson; and H.W. Brands, a University of Texas historian.

All four of them confirmed in recent days that Mr. Barnes shared the story with them years ago. “As far as I know, Ben never has lied to me,” Tom Johnson said, a sentiment the others echoed. Mr. Brands included three paragraphs about Mr. Barnes’s recollections in a 2015 biography of Mr. Reagan, but the account generated little public notice at the time.

Yes — Tom Johnson, a former publisher of the Los Angeles Times and president of CNN, has known about Barnes’ story for years, believes it and sat on it. This is an unconscionable act on Johnson’s part. Barnes’ story can’t be entirely verified, but it tracks with what we already know and is the closest thing we’ve had to proof that the Reagan campaign deliberately prolonged the hostages’ agony for political gain. I mean, this is really shocking stuff.

It also fits with a pattern of Republican candidates for president interfering in American foreign policy and cutting deals with our adversaries in order to gain political advantage.

During the 1968 campaign, Nixon’s henchmen secretly threw a wrench into U.S. peace talks aimed at ending the Vietnam War and also took a half-million-dollar bribe from the right-wing junta then running Greece. As we all know, Donald Trump was happy to benefit from a Russian influence campaign in 2016, and Trump campaign manager Paul Manafort had ties to Russian intelligence. Trump’s 2020 campaign featured his threat to withhold weapons from Ukraine unless officials there announced they were investigating Hunter Biden — an act that led to Trump’s first impeachment.

Barnes has filled in an important missing piece of history and cast serious doubts on the legitimacy of Reagan’s presidency. Reagan kicked off more than 40 years of right-wing economics that have left us with declining wages, widening income inequality and the toxic belief that private interests should come before the public good. It’s disheartening to receive confirmation that it never should have happened.

Mark Histed of the Democracy Policy Network talks about local news vouchers

Mark Histed

On the latest “What Works” podcast, Ellen Clegg and I talk with Mark Histed, a researcher at the Democracy Policy Network. DPN is a network of policy organizers who have a simple mission: sustaining democracy. That work takes place largely at the local level. Mark and others at DPN do research and provide deep-dive policy kits that help local citizens and legislators champion big ideas.

Mark leads the Local News Dollars effort and recently wrote a report on how states can establish a system where residents are issued vouchers they can use to subscribe or donate to the local journalism outlet of their choice.

In our Quick Takes, I discuss Ralph Nader — remember him? The consumer advocate-turned-presidential political spoiler got a lot of favorable attention late last month when it was learned that he would help launch a nonprofit newspaper in his hometown of Winsted, Connecticut. The paper, the Winsted Citizen, was the town’s first in a couple of years, although the daily Republican-American covers the area, too. But now people are wondering what exactly is going on — and if Nader is really going to come through with enough money for the Citizen to achieve liftoff.

Ellen tunes in to the new “Boston Strangler” movie on Hulu. In the movie, Keira Knightley portrays the late, great Loretta McLaughlin, who paired up with reporter Jean Cole at the Boston Record American to write a series of stories about the murders of women in Boston in the 1960s. Loretta moved on to The Boston Globe, where she did groundbreaking work on the AIDS crisis and became editorial page editor. She was a mentor to many, and an especially fierce advocate for the advancement of women in journalism.

You can listen to our latest podcast here and subscribe through your favorite podcast app.

The ACLU offers guidelines for how public officials can still maintain order

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.

“We hope to work together to maintain peaceable and orderly meetings and to preserve constitutionally 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.

You can read the ACLU’s full letter here.

Gannett seeks correction to Nieman Lab article

Last Friday I disputed Joshua Benton’s reporting in Nieman Lab on the extent of the decline in paid circulation at USA Today, owned by Gannett. Now Gannett has asked for a correction. I’m sure Gannett would take issue with my reporting as well; as I noted in an update, both Benton and I may have been led astray by the lack of transparency with which Gannett reports its numbers.

In fact, there’s a statement within Gannett’s request for a correction that is just pure gold regarding the circulation figures that it reports to the Alliance for Audited Media: “AAM data is used to help advertisers understand publisher reach in specific markets, not to infer readership or paid circulation.” Huh?

Surely it is news to many of us that terms such as “print readership,” “print and digital readership” and “circulation” ought to be defined by something other than their plain English meaning. In my earlier post, I concluded that it is impossible to know what Gannett’s publicly reported numbers mean. This only confirms it.

The SJC’s ruling on civility was correct, but it’s unlikely to be the last word

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.

Barney Frank, the unrepentant $2.4 million crypto bro

Give us a break, Barney. Meanwhile, I hope and expect The Boston Globe is going to dig deeply into what Frank was doing at Signature. From The New York Times:

Mr. Frank, who received more than $2.4 million in cash and stock from Signature during his seven-plus years on the board, left the job on Sunday as regulators dissolved the board. He said on Monday that the bank was the victim of overzealous regulators. “We were the ones who they shot to encourage others to stay away from crypto,” he said.

GBH News covers the revival of community journalism

Nice doubleheader on the revival of local news in Greater Boston from my friends at GBH News. Jeremy Siegel reports on three startups in the suburbs — the Burlington Buzz, the Framingham Source and the Marblehead Beacon — as well as Boston Black News, a radio outlet. (Jeremy interviewed me as well.)

Tori Bedford has a piece on the ownership transition at The Bay State Banner, which has been covering the Black community since 1965 and whose new executives have some ambitious expansion plans.