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Veritas and Copyright: The Public Library in Peril

Published onSep 26, 2022
Veritas and Copyright: The Public Library in Peril
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“To every cow belongs her calf, therefore to every book belongs its copy.”
~ King Diarmait Mac Cerbhaill

“By their very nature, ideas cannot be property.”
~ Aaron Swartz

The antagonism between private property rights and the free dissemination of knowledge is nothing new. There are records from Ireland, as early as the 6th century, describing an actual battle that took place over what some historians consider the earliest example of copyright regulations:

[The Cathach or Psalter of Saint Columba] is traditionally ascribed to St Columba as the copy, made at night in haste by a miraculous light, of a Psalter lent to Columba by St Finnian. A dispute arose about the ownership of the copy and King Diarmait Mac Cerbhaill gave the judgement ‘To every cow belongs her calf, therefore to every book belongs its copy’. The arbitration failed and the Psalter of St Columba passed into the hands of the O'Donnells after the battle of Cul Dremhne in A.D. 561. (Royal Irish Academy)

The judgment over the copy of the Psalter made by St Columba, the failed arbitration by King Diarmait Mac Cerbhaill, and the Battle of Cúl Dreimhne are emblematic of the way in which we have dealt with “copies” ever since. We live in the world this battle created.

In March of 2021, Z Library, a “shadow library,” referred to as a “pirate library” by those who seek to criminalize their efforts to provide access to knowledge for readers around the world who cannot otherwise afford it, especially in the Global South, was temporarily suspended because Harvard Business Publishing, a subsidiary of Harvard University Press, issued what is called a DMCA (Digital Millennium Copyright Act) takedown order. This is not the first time, nor will it be the last, that Z Library has been “taken down.”  By law, such a takedown order allows any publisher anywhere to demand the removal of a book from the digital shelves, whether from online stores such as Amazon.com or from a shadow library, with a very sparse threshold of proof of copyright infringement. 

To invoke a DMCA takedown order is a powerful threat to those who typically cannot afford to mount a legal defense. Harvard’s takedown order was eventually reversed, but it is chilling to those of us concerned with social justice and equal access to scholarship, that a university press at one of the richest institutions of higher education in the world would issue such an order at all. They did so because, among the millions of books accessible at Z Library, there were a few copies of books published by Harvard University Press: a few, out of the 10,000 books and counting that Harvard University Press has published. Harvard University’s motto is “Veritas” and the mission of its press is “is to advance knowledge and present preeminent authors in established fields—as well as emerging, younger voices in new areas of inquiry—to a wide global readership.” To Harvard University and Harvard University Press, we say, you are not for truth when you enclose access to knowledge for learning and research communities across the world. You do not advance knowledge; you restrict it and set up toll bridges. Your readership is neither wide nor global; it is privileged and Anglo-European. You are the pirates, you are the pillagers, and you are the dragons hoarding the stolen gold. Your veritas is a lie.

The Digital Millennium Copyright Act is one of the most heinous laws ever passed by the US Congress, and it was the result of intense lobbying on the part of large commercial publishing conglomerates who did not want their obscenely high profits (in the case of academic publishing, mostly extracted from public funds) to be threatened at a moment in history when the internet opened up the very real hope of sharing knowledge with the world. The U.S. Copyright Office describes it this way:

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), which amended U.S. copyright law to address important parts of the relationship between copyright and the internet. The three main updates were (1) establishing protections for online service providers in certain situations if their users engage in copyright infringement, including by creating the notice-and-takedown system, which allows copyright owners to inform online service providers about infringing material so it can be taken down; (2) encouraging copyright owners to give greater access to their works in digital formats by providing them with legal protections against unauthorized access to their works (for example, hacking passwords or circumventing encryption); and (3) making it unlawful to provide false copyright management information (for example, names of authors and copyright owners, titles of works) or to remove or alter that type of information in certain circumstances.

Aaron Swartz, one of the leading lights in the fight for the freedom of information in the early days of the internet, and an ongoing inspiration for the mission of punctum books, understood the perils of DMCA takedown notices and wrote against them. He was presented with more than one, notably in 2013 from Oxford University Press, the largest and wealthiest university press in the world, for daring to make available online their book Global Catastrophes: A Very Short Introduction. Just one book. And it is about global catastrophe. No, wide world, and no, Global South, you cannot read a scholarly book about the catastrophes, such as climate change, ignited and exacerbated by the lifestyles and corporate interests of the wealthiest nations, which disproportionately threaten your homes and your lives while they are building underground bunkers and launching rockets into space for post-planetary exploitation and colonization because they know the earth is on the brink of extinction. 

That same year, Aaron Swartz was prosecuted by Eric Holder, then Attorney General under Barack Obama, for downloading “too many” articles from JSTOR’s database at MIT University, even though he had official library login credentials at both Harvard and MIT. He never intended to profit from the materials he downloaded; he wanted to release them to the world and to make a point about the proprietary enclosure of knowledge. In January 2011, he was arrested by a Cambridge police detective who also called in an agent of the U.S. Secret Service. Personnel at MIT called in the police. A federal grand jury charged Aaron Swartz in July 2011 with four felony counts: one count of wire fraud and three counts of violating the Computer Fraud and Abuse Act. A later indictment by a second grand jury in September 2012 charged Swartz with 13 felony counts: two counts of wire fraud and 11 counts of violating the Computer Fraud and Abuse Act. He was offered a plea deal that would have given him six months in jail, but he refused it, even though he was threatened with 35, and then 50, and then 35 years in prison and over one million dollars in fines. The indictments and threat of prison demoralized Swartz, whose convictions would not allow him to plead guilty. In January of 2013, he hanged himself with a belt in his Brooklyn apartment. 

Two days after Swartz’s death, MIT announced they would conduct an investigation into whether or not the university was responsible for Swartz’s legal woes. The conclusion of their 182-page report was that they bore no responsibility (even though their staff called in the police) and had remained “neutral” throughout. According to this same report, “MIT never issued a public statement about Aaron Swartz's prosecution or advocated publicly on his behalf.” Further, “during the two years between Swartz's arrest and his death, only two professors suggested to members of the MIT administration that the Institute should advocate on his behalf.” Where were MIT Library and MIT Press in all of this? They should have spoken up, and because they did not, they violated their own missions to serve public knowledge and to defend academic freedom. MIT’s supposed neutrality and the silence of MIT Library and MIT Press evoke the “innocent bystander” argument. As Thomas Merton once asserted, “A witness of a crime, who just stands by and makes a mental note of the fact that he is an innocent bystander, tends by that very fact to become an accomplice.” Swartz’s family was outraged by MIT’s conclusion, as they should have been. 

Three years later, in 2016, two self-described “radical” and “leftist” publishers, Verso Books and The New Press, co-published a selection of Swartz’s writings titled The Boy Who Could Change the World, and asserted “all rights reserved” to themselves. Yet all of Swartz’s writings from his hard drive are available free online by his own legal directive and wishes. In Verso’s case they even asserted the “moral rights of the author,” which is obscene given Swartz’s own beliefs and politics. In addition, on the day of publication they issued a blog post titled “Psst! Downloading Isn’t Stealing [for today].” Readers could download the book for one day only; afterwards, Verso could come after you. The ebook, Verso explained, was watermarked (with readers’ email addresses) and if readers uploaded it to a file-sharing site, that would be illegal. (Luckily for us, this watermarking protocol didn’t stop shadow librarians from making the ebook available online.) Verso’s blog post concluded with one of Swartz’s writings titled “Downloading Isn’t Stealing.” Were they tripping? Was the director of marketing and promotion asleep at his desk? Apparently “the boy” couldn’t change the world. Even worse, The New Press issued a DMCA takedown notice to CreateSpace (then Amazon’s self-publishing platform) against a rival, more ample edition of Swartz’s writings Raw Thought: Raw Nerve: Inside the Mind of Aaron Swartz, which Discovery Publishing provided as an open, online edition. The takedown order succeeded (Amazon claims it will not involve itself in copyright disputes) and the director of the press, Adriano Lucchese, was devastated, as were we. Thankfully, the Internet Archive has preserved Discovery’s edition of Swartz’s writings (see above), and has also made available Swartz’s writings from his hard drive. Given the absolute clarity of Swartz’s legal directive for his writings to remain open into perpetuity after his death and his lifelong commitment to open access, the lies and betrayals of Verso Books and The New Press are shocking. If their editions are not piracy and theft, what is? And yet scholars continue to patronize them and send them their work because of the “status” they believe these presses confer upon their scholarship. Scholars must divest from these presses.

Such attempts to restrict access to knowledge are on the rise. Everywhere you look, university presses and large commercial publishing conglomerates, now self-described as “data analytics providers,” are issuing takedown orders and suing shadow libraries for infringing their copyrights and harming their ability to make profits when, in fact, their revenue has not been threatened one iota. Not only are shadow libraries being sued; so are precarious and vulnerable shadow librarians, such as Aaaarg’s Sean Dockray. Thankfully, many of them live in countries whose copyright laws are less restrictive or whose extradition laws protect them. But copyright laws are inherently undemocratic and immoral; they protect the profits of publishers, not the rights, moral or otherwise, of uncompensated authors who have (sometimes unknowingly), like Esau, signed over the legal rights to their work in exchange for the mess of pottage. And it is no longer only shadow libraries that are the target of litigation.

Most recently, commercial publishers Hatchette, HarperCollins, Wiley, and Penguin Random House have started a lawsuit against the Electronic Frontier Foundation and the digital public library they manage, the Internet Archive. Much more than a digital library, the Internet Archive is also an essential tool and an invaluable archive for those interested in the history of the internet. The lawsuit is especially egregious because the Internet Archive’s Controlled Digital 

Lending (CDL) rules follow all of the legal protocols of a brick and mortar library. The Internet Archive allows readers

to check out digital copies of books for two weeks or less, and only permits patrons to check out as many copies as the Archive and its partner libraries physically own. That means that if the Archive and its partner libraries have only one copy of a book, then only one patron can borrow it at a time, just like any other library. (Electronic Frontier Foundation). 

And while Hatchette et al. actively attempt to restrain digital access to thousands of books, many of which with long lapsed copyrights, they develop digital “book products” that can no longer even be owned by the libraries “acquiring” them. As a case in point, at the beginning of the Fall 2022 school term, Wiley Global, one of the plaintiffs in the Internet Archive suit, with no notice to university libraries, “disappeared” 1,372 ebook titles from libraries’ ebook holdings, ebooks that librarians maintain are essential for students to have. These are not scholarly monographs, but rather books specifically written for student learners. In addition, Wiley announced that libraries would no longer be able to purchase these ebooks at all because they want to sell them to individual readers, one by one. Due to budget constraints, libraries can only purchase a few physical copies which can be loaned to students, but that is obviously not going to work, logistically, for the many, many students who need these books. Given the staggering level of student debt throughout the world and the obscenely soaring cost of textbooks, this takes our breath away. We know most students won’t have the money to purchase these books, so what’s the strategy here?

Wiley’s aggressive act against libraries might be the beginning of commercial academic publishing conglomerates executing end runs around and eliminating libraries as knots that get in their way in their extraction of public funds. A few years ago, in 2019, we mused privately to ourselves that perhaps commercial academic publishing conglomerates were acquiring all of the content and infrastructure  – the journals and books (open and closed), the systems for discovery, dissemination, delivery and aggregation of content, for metadata management and data analytics, for cataloging and indexing and abstracting, for searching, hosting, and organizing datasets, and so on – because they were seeking to capture the entire system of exchange between themselves and research-learning communities, without the mediation of libraries. It felt like paranoia at the time to say this out loud. It no longer does. The end of the public university library is looming. Commercial publishers will broker deals with universities to facilitate “smooth” exchanges between content producers and their reading communities, and because libraries will no longer be seen as necessary and valuable intermediaries, there will be more money to give to these publishers directly, even more than they receive now, and the thoroughly neoliberal universities will be only too happy to do so as part of the furthering of the techno-managerial efficiencies they champion. University libraries may continue to exist but they will be pale imitations of what they are now, with the barest of infrastructure, collections, and staff. This is as much about the elimination of labor as it is about eliminating competition and converting public service institutions into corporate fiefdom-strongholds. In 2017 the richest 1% owned half of the world’s wealth and that number grows every year. Soon, there will be a complete capture of everything. We are nearing what is called the end of the line. 

These active attempts to restrict access to knowledge, either via lawsuits or by direct product control, do not only issue from large commercial publishing conglomerates. They now find an eager ally in right-wing and fascist organizations attacking public libraries by demanding the physical “takedown” of books on purely ideological grounds. According to a recent survey by PEN America, “1,648 unique titles,” many featuring LGBTQ+ themes or characters of color, have been affected by book bans since 2021. PEN’s public “Index of School Book Bans” makes for some depressing reading, showing the extent of the attack on the public distribution of knowledge, care, and affect.

The bottom line is that there are no principal distinctions between online and offline digital libraries, between shadow libraries and public community libraries and academic libraries, or between book bans stemming from commercial or ideological interests. Because commercial interests are ideological interests. And the ideology is that money or power – and ideally a combination of the two – has the right to control which books children read, which books are used for educating new generations, and which books we can consult for our scholarship. This ideology should be rejected, and as we are in solidarity with initiatives such as Freadom and Books Unbanned (more here) that fight right-wing and fascist groups who advocate for book bans, and who are doing so more and more successfully. We are also in solidarity with shadow libraries and their librarians against DMCA takedown notices and lawsuits. We urge academic libraries and library consortia around the world to join forces with the Irish Library Association who have been urging the Chair of the UK parliamentary Education Select Committee to initiate an investigation into the unfair sales, pricing, and licensing practices of academic ebook publishers. We urge university libraries to move away from so-called “transformative” agreements that keep capital firmly in the grip of robber baron publishers. We urge university libraries to do everything they can to reverse the wholesale proprietary capture of the infrastructures of knowledge production and dissemination, regardless of the “efficiency” of these systems, because not to do so is to become complicit , whether wittingly or unwittingly, with neoliberal capitalism and with the end of the public library. Because we need collective and government-sponsored action. Because all of this is part of a full-on attack on the public library and on global public knowledge.

Given these intensifications of corporate extraction and capture of public knowledge and the slow yet sure collapse of open library infrastructures, we want to heed the words of Marcell Mars, Manar Zarroug, and Tomislav Medak, who write in their essay, “Public Library”:

 A public library is:
— free access to books for every member of society
— library catalog
— librarian
With books ready to be shared, meticulously cataloged, everyone is a librarian.
When everyone is a librarian, the library is everywhere.

Punctum books stands with all public libraries and public librarians who perform civic service at its finest within local communities, schools, and universities. As queer scholar–publishers, we will use every tool at our disposal to support them. In these times, to support public librarianship, including shadow librarianship, is civil disobedience in action. And with them, we will be disobedient.

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