We are in an unprecedented time. People are being told to stay home as much as possible. Some of us are lucky enough to have jobs that can be done remotely, schools are closed and kids are home, and healthcare, grocery, or other essential workers are looking for respite where they can safely find it. All of which means that, for now, for many of us, the Internet is not only our town square, but also our school, art gallery, museum, and library.
Users around the U.S.—from individual creators to libraries to educators to community organizers—are rising to the challenge this presents by going online to share information, music, books, and art. High-profile examples include LeVar Burton telling stories to children and adults alike and the cast of Hamilton reuniting via a YouTube show. Musicians of all levels of fame are performing through a wide range of services and apps. Teachers are taking on the tremendous task of educating online, rapidly finding, developing and sharing resources so that their students don’t have to lose their place while they shelter in place. In response to the temporary closure of libraries around the US and abroad, the Internet Archive has created a National Emergency Library (NEL) that gives members of the public digital access to 1.5 million books, without charge. Universities, private companies, and nonprofits are pledging to make their intellectual property available free of charge as needed to fight the COVID pandemic and minimize its impacts.
But with more and more people relying on the Internet to form and maintain community, more and more people are also finding themselves on the pointy end of a number of legal swords. Copyright, in particular, has become a potential threat. For example, celebrity doctor Dr. Drew tried to use bogus copyright claims to shut down a video compilation of his incorrect advice about the coronavirus. Burton said copyright worries had limited his reading choices. Others are getting caught in automated filtering machines, like the man who used Facebook Live to stream video of himself playing the violin, or the teacher trying to do a webcast for her Pre-K class while her husband was watching Wrestlemania in the background. The Author’s Guild and others are up in arms about the NEL, insisting it will destroy authors’ livelihoods.
Fair use has a posse at EFF. If you are the target of an unfair infringement allegation, contact email@example.com and we’ll see if the posse can help.
Those challenges are predictable, but it’s heartening to see so many rallying in favor of sharing our common culture. When LeVar Burton expressed concern about copyright liability, authors such as Neil Gaiman and our own Cory Doctorow stepped up to grant permission. The International Federation of Library Associations has drafted an open letter to the World Intellectual Property Organization calling on WIPO and its members to do their part to facilitate public interest uses of work, and for rightsholders to do the same, and more than 312 organizations have signed on in less than a week.
As for the NEL, the New Yorker called it a “gift to readers,” and more than 300 individuals and institutions have endorsed the project. The Internet Archive has put out a detailed response to its critics, explaining how the project works, why it is legally protected, and how authors can opt out if they wish. It’s important to emphasize that the NEL only lends books for two weeks, after which the copy automatically disappears off of the user’s device. Moreover, the NEL does not offer new releases, as the collection excludes titles published within the last five years, and authors or publishers can request that a title be removed. And as Jonathan Band notes, there is no mechanism for the Internet Archive, or any other library, to license emergency access to many of the books in the collection. Finally, while the Archive does not closely log reader habits—showing a laudable and necessary respect for reader privacy – the information the Archive can share suggests that the NEL is not significantly affecting ebook licensing. Most books are only “opened” for less than 30 minutes, which suggests readers are using the NEL to browse and/or they are not interested in the PDF copy the Archive lends, which is significantly less reader-friendly than what you might see on your Kindle. The Archive also notes that 90% of the books that are borrowed were published a decade or more ago.
Fair Use Has a Posse
Many of these disputes over sharing culture are being played out in the court of public opinion for now, but users should know that there are strong legal protections as well. For example, our friends at American University have put together an outstanding primer for teachers on copyright and online learning. As they explain, the fair use doctrine protects many online learning practices, including reading aloud. Library adviser Kyle Courtney also has a great explainer on libraries, fair use, and exigent circumstances.
In a nutshell, the fair use doctrine allows you to use a copyrighted work without permission in a variety of circumstances. It is how we safeguard creativity and free speech in a world where copyright gives exclusive control of some kinds of expression to the copyright holder. To decide where a use is fair, courts consider the second user’s purpose (Is it new and different from that of the original creator? Is it commercial or for-profit?); the nature of the original work (Was it factual or fictional? Published or unpublished?); how much of the original work was used (Was it more than necessary to accomplish the second user’s purpose?); and market harm (Would the second use harm a likely or actual licensing market for the original work?). A court will weigh these four factors in light of copyright’s fundamental purpose of fostering creativity and innovation, and, in many cases, the public interest. This last bit is particularly important now. COVID-19 has created, almost by definition, a new and powerful public interest purpose that must be considered in any fair use analysis.
People are doing things right now that they instinctively know are right, are helping people, are giving light, or are simply things they would be able to do in the physical world. In many cases, their instinct is correct, but they don’t know they have legal protections. And even when those people have rights and defenses, they may not know how to use them, or have the resources to do it. Fortunately, fair use has a posse at EFF. If you are the target of an unfair infringement allegation, contact firstname.lastname@example.org and we’ll see if the posse can help.