Digital Lending and Copyright Controversies: Navigating the Future of Libraries with LibraryPunk

Can copyright laws coexist with digital lending in libraries? Join us as librarians Jay and Justin offer their expert insights into the controversies surrounding the Internet Archive and its bold approach to controlled digital lending. The episode unravels the chilling effects of legal challenges on library innovation and casts a critical eye on the self-presentation of Brewster Kahle, the Internet Archive's founder, as a hero battling publishing giants. We engage with the complexities of copyright in the digital age and the intricate balance between market harm and increased accessibility.

The episode further examines the daunting challenges libraries face with eBook licensing and the financial strain of maintaining digital collections. We explore how expensive fees and vendor restrictions limit access to digital content, especially for educational institutions. Our conversation brings to light the broader implications for digital preservation amid technological evolution, and how copyright laws influence these efforts. From the selective nature of digital archiving to the existential threat of data decay, this discussion provides a comprehensive look at the hurdles in safeguarding digital heritage.

Authors Corey Doctorow and Chuck Tingle join us to share their perspectives on the impact of copyright on creators and the pressing issues of book bans and digital accessibility. We delve into the financial and administrative challenges libraries encounter, like the loss of internal expertise due to outsourcing. The episode closes with a call for international cooperation to preserve open access and the universality of science, with personal experiences underscoring the precarious nature of digital content ownership. Tune in for an enlightening exploration of the future of libraries and digital content in a complex, ever-evolving landscape.

Musis by Bitterlake, Used with Permission, all rights to Bitterlake

Transcript

C. Derick Varn: 0:48

Hello, I'm here with Jay and Justin of the Library Punks and they will be talking to me about the fiasco and shenanigans that has been the Internet Archive and its effects on, well, media altogether as a whole, but also libraries and other things. I'm going to let Jay and Justin introduce themselves in a second, but I've been listening to their show for a little while because, in addition to being a left media person myself, I am a high school teacher and deal with library bullshit constantly, so it's like the bane of my existence. I live in Utah. You can see how that goes for me.

Library Punk 1: 1:29

Yeah, I used to live in Utah too, yeah how that goes for me.

C. Derick Varn: 1:36

Yeah, I used to live in Utah too, yeah, so introduce yourselves and talk a little bit about how you got into the controversies of the archive of the internet Go ahead Jay.

Library Punk 1: 1:45

Okay, so my name is Jay, I use he him pronouns and I am a cataloging librarian in Boston.

Library Punk 2: 1:51

He him pronouns, and I am a cataloging librarian in Boston. I'm Justin. I'm a scholarly communications librarian. I use he they pronouns Scholarly communications deals with publishing, open science, open data, open access, and so that's one of the ways that Internet Archive came into my life is it's more or less directly related to the work I do. So I've talked to several people who are like department heads at Internet Archive as a course of just like doing my work, come into contact with them every once in a while simply because they do a lot of cutting edge stuff because they do a lot of cutting-edge stuff, and I've done a lot of professional development around copyright, including with one of the major figures in the Defense for the Internet Archive, kyle Courtney.

Library Punk 1: 2:47

He does a lot of education for librarians around fair use and copyright, so I've taken several workshops and classes with him.

C. Derick Varn: 2:57

So one of the things that I have gathered from listening to your podcast, prior discussions, the internet archive and whatever I can find about these court cases it seems like this is a scenario where even the good guys aren't actually doing that good of things. Um, yeah, whoever the good guys are. Um so yeah, let's get to the specific case. How bad has this case around the internet archive, library and archival materials, and why start there?

Library Punk 1: 3:32

not much not a whole lot yet um the internet archive is catastrophizing on purpose, that's true, it's, the internet archive's not going to go away.

Library Punk 2: 3:45

Um, my concern has always been that this will impact other libraries who want to do controlled digital lending, and we'll look at this case and say, well, that's too much of a risk for us to take on now, so we're not going to even invest in people like me who want to do controlled digital lending where we aren't already doing it. I have to go to my supervisor and say I want to do this and they say, well, didn't that lawsuit just happen? And it doesn't. Kyle Courtney, who Jay just mentioned, has a great write-up. I'll send you the link to it so people can read it has a great write-up saying look, this only affects the second circuit, this only affects new books that have licensing options. So you could make your controlled digital lending focused around books that aren't going to get ebook versions, and that would not touch on what this case did.

Library Punk 2: 4:41

But this case was kind of so aggressive in saying controlled digital lending is not a thing. It's kind of hard to imagine that another circuit court wouldn't say the exact same thing. Kind of hard to imagine that another circuit court wouldn't say the exact same thing. So again, right now, it hasn't shut down anyone's controlled digital lending. But as always, I've been worried that in the practical, actual, day-to-day things, people are very risk averse and if I go to my supervisor and say I want to do this, he's going to say, well, didn't that lawsuit happen? And that's another. That's why I personally was very annoyed about this lawsuit, because it affects my ability to do my job.

C. Derick Varn: 5:30

So why is the Internet Archive catastrophizing and why do you think so many people have been given to repeating their version of the story?

Library Punk 1: 5:41

We don't have very kind things to say about Brewster Kahle and it's him mainly kind of going on an ego trip and we're the last bastion of libraries being able to do this and, like, I think, through the internet archives messaging, like I feel, like everyone I see on twitter thinks that the internet archive in general is going to go away, um, because of the way that the internet archive is talking about this case, um, and so I think it's just like get people on their side, but also it's just Brewster Kahle and his ego. Brewster Kahle is the founder of the Internet Archive.

Library Punk 2: 6:25

Yeah, and I think other department heads, like the head of the Open Library, who's Chris Freeland, also have that tendency to talk up. You know, we're David, we're taking on Goliath, the publishers are coming after us.

Library Punk 2: 6:43

This is totally unfair, when really it was a situation they got themselves into by doing a highly publicized and really we're coming to the rescue of of the emergency lending library that they did national emergency library, which was kind of what got all the attention and got them enough attention to get sued, which is kind of not what you want to do and got them enough attention to get sued, which is kind of not what you want to do.

C. Derick Varn: 7:20

So what was the ground of the lawsuit? I remember when I first read about this I was sort of shocked that they were surprised that they got sued. So I want to go into this legal detail a little bit because I was like how did you think you weren't going to get sued for that?

Library Punk 2: 7:31

But go ahead bit because I was like how did you think you weren't going to get sued for that? But go ahead. Well, there's always a certain amount of legal risk when you're doing something like controlled digital lending. So even if they hadn't made a big deal of the National Emergency Library, which was controlled digital lending, the way it works is you combine a couple sections of the Copyright Act and take physical books that you own, put them out of circulation, digitize them and then you only loan as many digital copies as physical copies you have. So those all go into a warehouse or a backroom. They don't circulate. And then you have controlled lending of only that many copies at a time. So they have to have like digital rights management on it, drm, so that they can't be copied. So they lend it out, they expire. So the same way that checking out works in general when you have limited copies and limited access.

Library Punk 2: 8:32

So what the National Emergency Library did was take off those limits of the loan-to-own ratio and that doesn't gel with the whole theory behind controlled digital lending, which was one of the reasons. I was annoyed that this whole case was about controlled digital lending when it was and wasn't. The publishers did challenge the very idea of controlled digital lending. When it was and wasn't, the publishers did challenge the very idea of controlled digital lending and said well, this is not written into the Copyright Act explicitly, so it doesn't exist. But that's also been true of a lot of things that libraries have done over the years, like interlibrary loan.

Library Punk 1: 9:07

I know one of the arguments for the National Emergency Library specifically was that because it was because so many libraries had closed, this was early in the pandemic.

Library Punk 1: 9:20

They argued that this was like a transformative or emergency like use because, like, like I remember they said like a lot of the use cases was like schools being like we need like 15 copies of catcher in the rye and our library is closed so we can't read catcher in the rye.

Library Punk 1: 9:40

And then our archive was like aha, here, you know, everyone can have catcher in the right now or whatever. Um, and so they were arguing that it was transformative because of the nature of the situation. Um, which is a stretch, um, like, I want to come out and say that like, I think the the concept of um, like the loan to own ratio for digital stuff, is bullshit, right, like we should not have digital scarcity, um, and that is something that publishers and copyright law enforce on us. So, like, in theory, I like what the internet archive did and I was defending them as they were doing it. Um, but then other stuff comes out about like they weren't, um, they were being kind of sloppy with how they were not even just doing the national emergency library, but the rest of their controlled digital lending on the open library.

Library Punk 2: 10:35

So the original lawsuit was in 2020, Hatchet, which I know it's not how it's pronounced, but I just like pronouncing it that way.

Library Punk 1: 10:43

Is it not pronounced Hatchet?

Library Punk 2: 10:45

I think it's Hachette Well, that's done. Harpercollins, john Wiley and Penguin. Random House Suited Internet Internet Archive claiming copyright infringement for 127 books for which there was an existing e-book market. So these are books that you can license an e-book. You can't buy an e-book because it's a digital copy. You never own anything that you buy in a digital version. You only ever license it. Which is kind of the root of the problem is there's no digital first sale doctrine. You can't own a thing. Um, so they argued it was basic copyright infringement and internet archive defended itself with section 107 saying this is fair use and it's fair use through the mechanism of controlled digital lending, which means that we've taken a couple of the rights that libraries have and in the way that like.

Library Punk 2: 11:36

I think the easiest way to explain it is the way VCRs were allowed to work, because it was time shifting. You could think of this as format shifting. The work isn't changed, it's not transformed. It's the exact same work. It's just no longer a print version. It's now a scanned print version. It's not even really a digital version. You can't even really highlight or modify the text you would if you had bought like an ebook, although with the state of ebook readers. These days, you can't really get much extra value out of that anyway, which maybe is what the publishers are a little worried about. But in theory, if you bought an ebook version, it's more accessible, the lines are cleaner, it's not a scan, so this is literally just format shifting from print to digital, and everything else kind of is supposed to stay the same. So that was the argument, and the argument relied on fair use, basically saying that since all these other public libraries and school libraries are closed, we are loaning on behalf of those copies that can't circulate.

C. Derick Varn: 12:44

So, yeah, I think people kind of finally gotten the feel that we don't own anything digital, that it's all basically a rent market on rights of a disaster even for capitalist ownership rights, because basically people think they own something and they don't, um, and we've seen this concept expand to things like the internet of things. Aka, now you have to have a subscription to drive your car, um, which is or even worse uh, sorry to jump in, but even worse like accessibility things.

Library Punk 2: 13:36

You remember all those stories of people who uh were completely blind, uh having uh visual implants. Well, that stuff runs on software and those people are. No, the company went out of business and those people no longer can see, even after having these very expensive prosthetics made. So it's, it's even worse than sort of just regular consumer goods but also medical goods, which is really scary.

Library Punk 1: 14:04

Yeah.

C. Derick Varn: 14:09

It's interesting that archaic laws and Bush and book publishing actually were the Vanguard here. Um, cause, usually if those of you who follow anything about publishing copyrights usually it's like the rear guard of everything we're still governed by, like world war two level laws, um, but it's not in this case. Um. So I get why people would want to be sympathetic to the internet archive on this, like I also when I first heard about it's like, oh, of course I side with them. But there is some stuff about how they were justifying their original scans. Who owned the copies? How are they making money off that? That stuff got a lot more questionable. We haven't gone into that very much. But but where are the original scans? Who owns them and who got paid for the scanning?

Library Punk 2: 14:59

So the scans are hosted on the Internet Archive servers and they do the digitizing. So they have their own scanners. They have their own warehouses of books, so they usually get them through donation or purchase and then those stay in a warehouse and they don't circulate and they only circulate through the open library yeah, their, their argument is that they're trying to sort of do the digital first sale like, oh well, we, oh, we bought the book or the book was donated to us by, usually libraries.

Library Punk 1: 15:31

Um, libraries donate a lot of these, um, and so they're like, we own this book, we have it, so we can make this scan and provide this access. Um, like that's sort of the argument. And, like in the united states, this is different in canada and the uk, like authors don't make anything off of circulation in a library. They make money theoretically, like when the library buys the book through publishers or royalties or whatever, and ebook licenses are a nightmare, um, especially for public libraries. Um, but as far as the actual circulation, like authors don't make money off of that in the United States, in the UK and in Canada they do. But the argument that authors were losing money off of this was also kind of factually incorrect as well.

Library Punk 2: 16:24

Yeah, the case, particularly what it came down to, is because they were doing controlled digital lending with books that you could buy as an ebook. This was replacing that ebook market. So unfortunately, in a case like this, when you're the defendant, uh, the burden of proof falls on you to prove that you did no, uh, market harm. And that's impossible for you to prove because all of the market data lies with the people suing you and there's no discovery for that, so there's no way you can find out if their sales were actually impacted.

Library Punk 2: 17:04

So part of the possible upsides from this case not an upside, but the way you could continue doing controlled digital lending is focus on books that are not available commercially as eBooks and that probably never will be so rare books, local books, books that, while still in copyright because that's if it's in the public domain it's no longer a problem. So this is all about books and copyright. But if you have, like local books say, a book was published in the 70s and it's about local history, that book's not getting a reprint most likely. And every library has local collections like every academic library at least, is going to have local collections full of books like that which are stuck in copyright for another 50, 60, 70 years and we can't do anything with them except hold on to the physical versions. That's a little ridiculous. Why can't we do?

C. Derick Varn: 18:05

controlled digital lending with those unique materials. There's a lot of that. I think people underestimate the amount of material that is not available on ebook. That is also still not in the public domain.

Library Punk 1: 18:18

There's a ton Do we want to talk about it. Oh, sorry, I was just gonna say there's also like a very large class of ebooks that, although they are available to consumers, they are not available to libraries, because a library just can't go on Amazon and buy a Kindle ebook, for example. We have to do it through certain vendors or publishers, like there's specific licenses that go along with them, and so all of the great self-published romance novels and stuff that are on Kindle Unlimited, libraries can't have any of those because libraries can't have access to kindle unlimited, for example. The inner archive and control digital digital lending shouldn't like start like that wouldn't be a place to infringe upon without getting you know caught, but like that's also like an area that libraries can't um access as well. Like not every-book even is available to libraries.

Library Punk 2: 19:15

Yeah, and that's another problem, because we can't even get a physical version.

Library Punk 1: 19:20

Yeah.

C. Derick Varn: 19:24

Oh yeah, yeah, there's a lot of these books that are also only e-books, correct? I wasn't even thinking about that.

C. Derick Varn: 19:30

I know, for people who don't know, the onerousness of licensing e-books for libraries books, correct, I wasn't thinking about that. I I know, for people who don't know the owner, the onerousness of licensing ebooks for libraries and public uh, schools and whatnot is a lot worse than people realize, and a lot. It actually dramatically increases the the cost of books. So, for example, um, if you thought we had a textbook problem before when we were using physical textbooks for those of us in public schools, we basically don't have textbooks anymore and have trouble licensing them because they're ungodly expensive per student, per year.

Library Punk 1: 20:06

Do y'all spend like a car every year for them Like that's an academic library, it's like sometimes it's a car or more worth of money yeah yeah well, I mean, just like often it's like 15 a year a license per student, so only one student can have it.

C. Derick Varn: 20:22

So we're gonna have to buy like I don't know a thousand of them, and they're more expensive just for the yearly rent than buying a physical copy of the book. Um, and so for a lot of people who thought we were going to be able to get out of textbook problems by, by digital learning laws, we've actually learned we've learned about the copyright law that actually no, we don't just not get out of textbook problems actually have more problems financing it than we did before. Textbook problems actually have more problems financing it than we did before, and in that sense, I think people have. Like I got asked recently like why don't kids read novels anymore? And I was literally like it's hard for us to get the rights to actually use them. It's not a physical copy and we're not buying new physical copies because a lot of people got on tech bandwagons. However, we don't have the money to license them either, so we kind of if it's not in the public domain, you know, so you're going to get a lot of Shakespeare and great Gatsby, cause that's where we can go, and yeah, and I mean I think this has a knock on effect.

C. Derick Varn: 21:27

To bring it back to the, the internet archive, though why do you think so many people have mistaken this with the whole memory hole problem of the Internet? I mean, we know that there's a memory hole problem. The Internet Archive doesn't get everything, neither does the Wayback Machine, etc. But this seems to have tripped on anxieties which people legitimately have, for which this case speaks not at all to Like. What do you think is?

Library Punk 1: 21:55

going on there. The internet archive said it like I've seen tweets of theirs like they're they're not being um, they're like they're catastrophizing. That's one of the reasons. But also, people don't realize all of the different functions of the internet archive, like a lot of people don't realize they have the book lending thing they just think about like the way back machine. Right, because, hi, arthur, um. A lot of times when I see people like being like oh, we're gonna lose all of these backed up websites, like and that's all they know about the internet archive as like the archive of the internet, um, so I I think people just not realizing all of the different things that the internet archive does um is part of what's causing this yeah, and when you talk about memory hole, I I think there's another aspect where, where, because of the way that platforms live and die, people experience digital death multiple times.

Library Punk 2: 22:59

They lose everything with an account. So you know, oh, I lost all my memories in MySpace. Oh, I lost all my memories on Facebook. I lost all my memories on my Twitter account when I got banned, or I lost all my videos I made on YouTube, and so there is a large amount of anxiety out there about like realizing for the first time that who's preserving this? And the answer is kind of no one.

Library Punk 2: 23:26

Some people are, and some stuff gets preserved, but not all of it. And people start to think like how does information get into an archive? How do, how do I get remembered? You know, I've seen a lot of people have these, these existential crises on Twitter, for example, when they're like well, what happens when Twitter dies? Where does all this stuff go, all this, you know reporting that happened, or all of this. So there's a lot of existential anxiety about digital preservation. That, I think, hits people at different times when there's a lot of instability, and I think the fear of losing the Internet Archive is one of those moments of instability where it triggers that reaction in people.

Library Punk 1: 24:10

Right. Remember when theussian invasion of ukraine happened, there was a lot of librarians who got together um and like um got volunteers just from the internet to do a bunch of web scraping and archiving for ukrainian cultural heritage sites. But no such effort some effort, but not nearly to the extent, has happened, uh, for palestine, uh, for example. Like, this sort of memory hole thing is very selective all right.

Library Punk 2: 24:40

It plays on pre-existing anxieties and, um it, it hits people at different times. I think particularly you'll see it. I think I saw a lot of it in 2020, in particular, when you had a research like a I don't know it's the word resurgence groundswell of support, like popular support for Black Lives Matter, and then I saw quite a few Black people on Twitter have these moments where they go. How does this get preserved? How do our memories get made? How do we get into these archives and the fear of having to interact with that type of bureaucracy and like, oh, maybe we need to make community archives, maybe we need to be printing stuff out, maybe we need to start building libraries and syllabi and stuff to keep this somewhere, so someone will remember what happened and what we did and all the work we were putting into it. So it can. It can that anxiety triggers in different communities at different times. I'm sure there's a lot of Palestinian academics out there who are having that exact same crisis and going we've got to save everything we can.

Library Punk 1: 25:57

Yeah, there's just not been like the public outcry about it from like non-Palestinians like there was for like ukraine, for example yeah, I know, like libraries and archivists of palestine has been doing stuff and there's been folks doing things, but yeah and like the videos they get captured and put on twitter.

C. Derick Varn: 26:16

I know there are people out there archiving them just on their own yeah this brings me to something that uh will seem a little bit off our further field, but I do want to talk a little bit about, which is the ephemerality of digital media, not just the internet, digital media in general, because people seem to not understand data decay yeah um bit rot baby um, I, I mean, even in my own life I have been carrying around files that I thought were still valid, that I went to open up, that were like 20 years old because I've always used word docs or whatever I've been going.

C. Derick Varn: 26:56

Oh, this no longer opens, like I have a printed copy somewhere but like I haven't thought about it in 50 years. No, I'm not that old, but yeah, I mean it is. I see this a lot. I think we, I think it's hit people how much we lost from even relatively simple early digital technologies like floppy disks, early tape drives.

C. Derick Varn: 27:20

I think you know early tape drives, I think, nasa blueprints being lost, stuff like that. I think some people have thought the internet and the cloud was a way around that, but, as a person who's worked in digital publishing for 20 years, there's a whole lot of articles that I wrote that are available nowhere, or they might technically be on the internet internet, and maybe we should talk about this a little bit too but good luck fucking finding them, because the indexes have made it so hard to find some of this stuff. Um, I I have many times gone looking for things that I know exist somewhere, and I've tried to it through Google, but the Google algorithm has changed so significantly that I can no longer even figure out how to ask it, how to find this specific thing from five to 10 years ago. So I get why there's a lot of anxiety about this, because it actually is a real problem, but this actually isn't about that problem.

Library Punk 1: 28:24

Correct yeah.

C. Derick Varn: 28:27

How does copyright complicate that? The archival material, how does that interact? That's something I've actually been just thinking about right now and haven't thought a whole lot about. What does copyright limit us from doing and saving these kinds of archival materials?

Library Punk 1: 28:42

I mean.

Library Punk 1: 28:42

So I actually encourage everyone to go read United States Copyright Law because it's kind of fun and not that long and a lot of the articles of copyright law United States Copyright Law at least are actually about the various ways that you or institutions can actually get around copyright law.

Library Punk 1: 29:05

Right or not get around copyright law, but like sort of get around or not get around is not the right word, but like where you don't, the copyright isn't in play anymore. And section 108, yes, 108 of copyright law is all about libraries and other cultural institutions getting to do that, the various ways that libraries and archives and museums et cetera get to sort of break the copyright of a creator. And a lot of that has to do with preservation, has to do with preservation. So, for example, as soon as they stopped making VCRs, it became legal for libraries to make not just like preservation copies of VHS tapes on like DVDs for example, but to circulate those instead of the VHS tapes, because it is no longer kind of possible to buy or play those VHS tapes. And so those kinds of preservation copies are made all the time, especially in academic libraries, for example. Justin probably knows way more about this stuff than I do more about this, though, than I do.

Library Punk 2: 30:29

Yeah, I mean, the main interaction is that the maxim in preservation is lots of copies, keep stuff safe, and so the more copies you can make, the more chance of preservation there is. And, of course, copyright limits how we make copies. So there's a very direct way in which copyright stops preservation and that it stops copying. So, yes, there will be organizations like libraries who are allowed to copy, but it would be a lot better if the general public was just allowed to copy things and make their own archives and hoards as well, simply because we know that a lot of stuff gets preserved through piracy, because that's illicit copying, but the copies keep stuff safe. So it's kind of the same problem with digital publishing as well.

Library Punk 2: 31:11

There's always been this emphasis on the copy of record, for example, which is a mixture of.

Library Punk 2: 31:20

This is like the final prestige version, that's in the journal that it's published in, but and it's also the one where the metrics get pulled from in the digital age.

Library Punk 2: 31:31

But I think a lot of it goes back to like the print fetishization that exists in a lot of academic journals, but now, because there are so many preprint servers and institutional repositories, an academic article might have three or four copies somewhere, and so if there's a small open access journal that ends up publishing your paper, it might disappear from that open access journal. But hopefully there will be other copies on institutional repositories or preprint archives so that those aren't gone. And for example, as a policy at my university, if we find something that's published open access under a Creative Commons license, we'll just go ahead and put it in the repository even though it's already open access out there. Because what if something happens to the journal? So we just make preservation copies and we can circulate those because they're openly licensed. So the more things that are in open licenses, the more preservation copies you can make. So copyright just prohibits uh, copying and that's what that's a direct impact on, on preservation.

Library Punk 1: 32:44

Yeah, and Justin mentioned privacy as like to how a lot of especially, like you know, a lot of movies I love that have come out recently don't get digital releases or don't get physical releases. They are just digital, like this great horror movie, the Empty man, only available online. You cannot buy a physical copy of the Empty man. As much as I would buy 10 of them, right, and I think libraries because we are institutions that can sort of make these kinds of copies preservation-wise, that other people can't without it being illegal, right are going to have to get more comfortable with interacting with piracy. Um, because a lot of these, uh digital only copies are behind paywalls that libraries also don't have access to, right? Um, and so how else do you get that, besides like finding a torrent of it somewhere? Um, like, there's a story I tell all the time.

Library Punk 1: 33:43

I was actually at a utah library association conference, uh, back a couple back in the day, and a uh, an academic library talked about how, um, this one, you know course, requested like this one movie or something, and the movie was you could not buy a physical copy of it.

Library Punk 1: 34:03

It was like they could not find any to buy anywhere and they also couldn't find any online copies legally. However, they were able to find a digital pirated copy of it, and so what that library did is they went this is the only copy we can find of this, and so we are going to get this. We are going to do a piracy, right, we are going to do something illegal and get the pirated copy and put it on a very secure server, so it's just so that it's one preserved, but also it's available to this only the students in this class, right, and I love that story, and I feel like more libraries public, academic, whatever are going to have to get more comfortable interacting with the sort of like system of piracy online just in order to get some of these copies, in order to do preservation and access.

C. Derick Varn: 35:05

Well, yeah, I think that's's gonna be really important, as we've seen streaming material that has no physical, uh media overlay just disappear for tax write-off purposes. Yep, um, and it feels it feels like, you know, dealing with film in the 30s, when they would just randomly catch on fire. Yeah, that's what it feels like. It's like this is going to be a time period where we're like, well, we have like maybe one-fifth of all that was available between 2015 and whenever we figure out how to handle this, because so much of it was just behind payrolls and lost and we don't even necessarily know when it was released. Payrolls and lost, and we don't even necessarily know when it was released.

C. Derick Varn: 35:56

I find that fascinating. As a person who arguably one of the most famous articles I've ever published is only available in pirated versions where the rights were actually not clearly established, I can tell you that I tend to not care when this happens and I've gotten to archiving on my own stuff, because as a podcaster, I've had podcasts go down or even YouTube channels get bought and stuff just gets suppressed and lost and the whole buying. It's like who actually owns YouTube channels is an interesting and somewhat unsettled legal dispute in a lot of ways. I mean, youtube obviously owns it, but, like, who owns the content on it can actually be interestingly debatable, as I discovered two years ago. So I do find all these things quite fascinating.

C. Derick Varn: 36:51

But I also find it interesting in the sense that we're often dealing with international copyright law. As I have unfortunately been beholden to British copyright and libel laws before, and, having never stepped foot once in the country Ibo laws before and having never stepped foot once in the country and that is a interesting place to be right now it does seem like we do not. We're not living in a time where states seem like they're going to get on board with each other, either to like, settle these accords or differences in law. Does that complicate anything in your work and how again we can tie this back to the internet archive? Um, has the internet archive issue been different, handled differently in other countries?

Library Punk 2: 37:37

well, copyright is more or less unified by, like therne Convention. It's kind of standardized everywhere. Canada was just forced, in fact, to extend their copyright law because they were a holdout. Their copyright was Life of the Author plus 50 years. Everyone else was doing plus 70 years. These things get usually hammered out during trade deals. So during negotiations of a trade deal, they were, within the last couple of years, forced to fall into line. So copyright is pretty internationally solid.

Library Punk 2: 38:20

The main differences tend to be how much is a country going to enforce it on its own nationals if it's an international thing. So, for example, uh, like, uh. I was just reading this book from like 2009 and there was this, this massive piracy ring of like the entire production line of electronics in china, and basically what had happened was these Japanese companies would do all the legal work with a factory in China which was actually operating as a front. They would have all of the licensing, all of the schematics, all of the legal agreements, and then they would take that, and then that factory, which was a front, would then license it to all of these other factories who thought they were dealing with the legitimate original party, and so it created this massive amount of independent. So basically it was like a whole pirate shadow company with the same name branding everything, but none of that stuff was from the original person and china, the. The question was is china going to uh go after a merchant who believes they were acting in good faith, because it was a very convincing duplicate?

Library Punk 2: 39:37

no, probably not so they're like that difference matters, but the law in itself is pretty standardized.

C. Derick Varn: 39:50

Where I got caught up was disagreements between states on who owns what. That was a fun time Again.

Library Punk 1: 40:03

that actually was an issue of nationals versus non-nationals, but um, and I remember one of the internet archives arguments um, was that like because they are in the united states? Um, they are in california, I, I believe, um, that, like anybody who is a citizen and pays taxes in the united states, because the internet archives the library, like it's sort of like how, in order to get a library card at your public library, like, yes, it's free, but you're paying for it with your your taxes, right, and so that that was another. One of their arguments was sort of like, well, we aren't, like it's limited to, like, the citizens of the United States or something which I don't think is true, but I remember they did make that argument at one point. They were trying to do the like citizen thing.

Library Punk 2: 41:00

Yeah, things, which is that's the thing that's constantly brought up in open scholarship, which is okay because the taxpayer argument is there too. You know, most academic writing is done by public employees, so why should citizens not be able to access it? So then if they come to this big agreement, like, okay, the citizens will have access, but it will be IP restricted, and so that's geofencing and that's, you know, a whole other problem in terms of equity, the universality of science, the actual you know the actual principles of open scholarship. You know, principles don't usually get you very far in these kinds of arguments, but it's like this was the whole point was to make science more open. Uh, and you know, people get so caught up in the technicalities of like what is what is doable within the system that they forget that they had an original goal they were going after, and that's kind of one of the most frustrating things about it.

C. Derick Varn: 42:12

So how much should we be worried about the, the internet, becoming more and more nationally limited? This has been on my mind a lot, completely separately. I wasn't thinking about it for a question today, but we've seen bills that have tried in the United States that have tried to do that. I can tell you that, as a person who's lived in several continents that who's lived in several continents that internet access is radically sometimes very different between those continents, but it is still. Mostly. I could get to things I needed to if I knew how to do it, usually legally, so not always, but usually. How much is that changing, though, and should we be worried about it as a real threat, as opposed to this made-up threat that seems to be above the Internet?

Library Punk 1: 43:07

I mean, I think it's already happening and sex workers have been warning us about this, because it's starting with FOSTA, sesta and also whatever the child protection thing about SEPA. Yeah, got to keep kids safe online, and so we have to make sure all the porn websites get age verification, which requires ID verification, right, which, like, yeah, sex workers have been warning us about this for years, and it is a extremely conservative, anti-sex, anti-sex worker, um homophobic, transphobic, um sort of um goal and system, and yet it's be also being championed um legally by a lot of Democrats because the thing of the children, right, and I don't think it actually passed this time, but this is something that, like, I mean, you're in Utah like you know and I know at one point they were going to try in Utah where iPhones had to have specific age restriction stuff on them or else they couldn't be sold in Utah or used in Utah, where iPhones had to have specific age restriction stuff on them or else they couldn't be sold in Utah or used in Utah or something.

C. Derick Varn: 44:28

They also tried to. They did pass, but it seems like they have thrown out in court an age restriction on any use of social media beyond what the consumer agreement was. There's a limit to which tech lords you can piss off as a state like Utah beyond what the consumer agreement was, but that you know there's a limit to which tech Lords you can piss off as a state like Utah and the court's not. And and honestly, it was one of those situations where I'm like I don't know that I like either side of this lawsuit, but nonetheless. But yes, I live in Utah, I have a different internet which is not that hard to get around, but still it's it's it's it's kind of obnoxious and it's also not well enforced.

C. Derick Varn: 45:11

This is one of the ironies of all this is, the enforcement is basically by lawsuit on the companies. So there are some sketchy ass websites that just ignore it and they're probably way more extreme, but for whatever reason, utah can't find them or they can't figure out who owns them. They're dragging them to court, et cetera, et cetera. So it I don't know if they're going to try to put that on the distributors, but again, utah going up against, I don't know, california business industry, they'll lose, but I do see that this is already happening and it seems to be getting more and more severe. Another example is the entirety of Brazil just lost access to X. As much as I don't love x and I would love to take the side of the brazilian courts against elon musk it seems like a dangerous precedent to set um yeah so yeah there's I also want to mention.

Library Punk 2: 46:18

Sipa is an older bill for a child online. The new one is COSA.

Library Punk 1: 46:23

Kids Online Safety Act.

Library Punk 2: 46:25

And that one is much, much worse than SEPA. Sepa is like if you are a school or a library, you have to have these filters on. You don't have to have them on all the computers, but usually they do. Cosa is much more like the large websites. Internet applications, search engines, including social network sites, have to use algorithms that prioritize information furnished to the user based on user-specific data. I think you know, like I'm in Texas, for example, like I can't access Pornhub unless I go through a VPN, simply because they want to put in this ID verification system that you know you have to plug your ID into some sort of digital verification system, which most you know websites aren't able to comply with anyway, or they probably would have to pay money to integrate that service into their website so that it's into their operating costs. So there's, you know, I think you can be put on like a piracy watch list in, like the EU, for example, so that way they can just keep stealing, you know, domains from pirate websites. They just keep them on a list and whenever they see something like, they just get uh, seized by the government.

Library Punk 2: 48:05

So yeah, I think we are seeing, I mean it's, it's definitely a real I I don't know how much this is going to be on like national lines. I think it might definitely be along trade lines. Eu definitely will act as one um, united states and canada and and Mexico will probably act as one um, because a lot of these will go through trade deals, I think. But yeah, it's interesting in the United States because we have all these state governments which are going to do their own. You know, um, they have their own capacity to limit how the internet functions within their borders and I mean, that's a recipe for all kinds of problems. But I think the idea of an open internet is kind of one that governments aren't interested in anymore. They never really were.

Library Punk 2: 48:55

But I think, you know, the libertarianism of the tech sector is going away and it's moving. It's moving rightward, um, which is the typical libert, you know libertarian trajectory? Uh, it's. It's that old uh, uh YouTube playlist of like two years ago, I'm a libertarian. Uh, what about the JQ? I am a fascist, like two weeks ago. Like that whole, uh, progression of people, whole progression of people down that rabbit hole. So it's not surprising that we see people like Elon Musk and whatever jumping up and down on stage at a Trump show or whatever. It's not surprising.

Library Punk 2: 49:38

Yeah, from a political economic standpoint go ahead yeah from a political, economic standpoint go ahead.

Library Punk 2: 49:43

No, I think we should be planning ahead of how we're going to maintain lines of communication internationally and how we're going to because, legislatively, I don't know how well we're going to fight back, because in the United States, both parties are pretty on board with this. So it's going to have to be popular actions of how are we going to get around these things, how are we going to plan for them and and subvert them, um, in our personal and our professional lives well what I was going to say.

C. Derick Varn: 50:14

Political, economically, it makes sense to me that we see these tech giants doing this because they've got they've had their free internet. Now they want to commodify it. And they've had their free internet, now they want to commodify it. And they've had their government handouts that got them able to establish monopoly power in almost all cases, um, and now they don't need them anymore. So it's, it's uh, you know, it makes total sense to me that, even if it wasn't cynical why they would start moving from libertarian or even maybe so a democrat, uh, democrat, uh, adjacent to whatever the fuck they are now, um, and mostly that's going to be right wing. Even the liberal ones are more right wing than they used to be, and think about jeff bezos and what he's done to the Washington Post. But I also think that you're right. There's not like, for example, the bipartisan consistence on TikTok has been sort of astounding to me, because I'm like, yeah, I mean, look, I think TikTok's annoying and probably bad for your kids, kids. But like, uh, the censorship gambit that you're doing here is clearly just us media, uh, organ protectionism, um, and a kind of what one is going to have a lot of backfiring tied into it as well.

C. Derick Varn: 51:37

Um, but it is interesting how much the nature of the internet has changed and I wanted to ask you you know we talked about this in my national lines, we talked about this in my state lines. State lines are getting weird. It's just very hard to know what you can access. Utah's Internet versus Texas's Internet versus New York's Internet versus California's Internet is going to be quite interesting if things continue the way they're going. If things continue the way they're going. It's also interesting in that some of these states also aren't big enough to really enforce these laws. So it's going to be interesting how they get held up in courts, and a lot of them haven't really been tested yet.

C. Derick Varn: 52:19

But given the current court system, I wouldn't be putting a whole lot of faith that it's going to go super progressively by the time they have to reconcile different, different courts rulings with the supreme court. I'll just put it that way. Um, but the internet archive question is interesting to me because it is a story where, uh, I want to be on this side of this group, but they've done it so sloppily that I can't be and it actually might have. It is both. It has less repercussions than people are pretending that it has, but might have. Could it have long-term repercussions, though, and just minor shifts to case law? What do you, what do you guys see about that?

Library Punk 1: 53:02

That's probably what's gonna happen. It's just gonna like libraries already don't own our digital materials, our electronic like our electronic resources. We already don't own them. Um, and I think one thing this case gets tied to a lot is, um, the library futures futures like group, where they are doing a lot around like lobbying for, for example, state like contract laws or whatever around how publishers sell eBooks to libraries. Right, it's like it's a lot of the same group of people and so that gets tied to this case a lot, because that was sort of what the point of what the Internet Archive was doing was like kind of getting to own something digitally and do stuff with it as opposed to licensing it. Because that was another argument Like well, you didn't license that properly, right, like that was.

Library Punk 1: 54:00

You know, therefore, the author is not getting money or whatever. That was one of the big things was like how did the internet archive get these materials? They didn't license them. They didn't license them. That's the refrain. So I yeah, I think this might sort of like. I like to say that libraries are a lot of liberal bootlickers who are obsessed with being good and following rules and doing a good job, and also, we don't have money, so we there might be material incentive to being a liberal bootlicker because you don't have money.

Library Punk 1: 54:34

Right, right, like we can't afford to put a lot of these systems into place. Or to, more more accurately, those who have power in libraries, so directors, deans or universities or whomstever. Um, those people, they might have the money but they don't want to put it towards labor. They don't want to have to hire people who come with benefits and health and you know all this stuff. They would rather outsource that to a third party like all of these, like ebook licensors or whatever overdrive hoopla, whatever and just have them deal with it. So, instead of us having mass digitization and servers and all of that, we make somebody else do that and then we don't pay our workers, right? I think that it's just more going to reinforce this sort of pattern of libraries don't get to own the things that we loan out electronically and that will, and then probably it will be legally harder to get out of that cycle will, and then probably it will be legally harder to get out of that cycle that brings up an interesting thing about labor.

C. Derick Varn: 55:51

And all this because you know I'm a marxist podcast. I talk a lot about labor, but I have often wondered why, in many of these cases, I'm high enough in a school system that will remain unnamed so I can keep my job, that I know how much we parcel out now to third-party things and how expensive it is. It is more than just hiring people, even with benefits costs, and you can no longer say it's a one-time expense. And it has baffled me why administrators, even at the secondary and primary level, are heading in that direction, but they clearly are the way it is. Is it labor control? Is it? I mean, admittedly, in my field there is a profound lack of staff anyway, but what do you think's leading to that calculation? Because sometimes it isn't even monetarily rational, so there must be some other rationality undergirding it.

Library Punk 2: 57:02

It's interesting. Something that was mentioned on Trash Future recently was the de-skilling of the government, because they no longer have people who are public employees who know how to run a train system, and so, because no one even knows how it works, it seems like magic to them, and so they externalize it and they privatize it more, even though it makes no sense to do so. And I think to an extent we could apply that analysis to universities, who have spent so much time outsourcing certain things that you know how could we hire someone to do this? Because no one on staff knows how it works and because you haven't developed your staff right. We've been trying to make staff more precarious. We've been trying to get rid of the high wage.

Library Punk 2: 57:54

It's the Boeing problem. We got rid of all of these really expensive workers who we could hire other people at a third the cost and make more money, because labor is almost always the biggest expense, whether it's public sector, private sector. So, yeah, I think part of it is the destruction of internal expertise is part of it. I think the other part is budget fights. It's for some reason it's just easier to say we'll spend $50,000 a year on this product instead of hiring one other person to help run this, and I don't know why that is, but I think it's just that staff are seen as more of a liability than a product, and I think that's. I think that's a budget bureaucracy problem, but I think that I think the loss of expertise is an interesting angle to keep in mind.

Library Punk 1: 58:47

I will also say the Internet Archive is one of these third parties that we outsource stuff to, cannot digitize their own things, can send their stuff off to the internet archive to have them digitize it for them, as well as to host those scans in perpetuity on the internet archive servers so that those libraries don't have to have not just the staff but also the equipment to do digitization, as well as the server space and the web space to host good quality scans of digital and of of books and stuff and, like you know, music libraries often won't send their stuff to the internet archive because the scans just aren't good enough quality, um. But, like, a lot of libraries send their stuff off to the internet archive just for digitization, um, even if it's not hosted publicly, um. So, like, the internet archive is one of these third parties that libraries send stuff off to because we won't develop our own in-house systems for, you know, not having the money, or they refuse to give us the money or the space or the tools, that kind of thing.

Library Punk 2: 59:57

Yeah, and it's interesting particularly with, like, the issue of scanners. You would think libraries would figure out some kind of system to just loan each other these machines, because a lot of it comes down to no one wants to put the capital investment in a big scanner, so it really makes me wonder why? Why aren't we just collectively purchasing these things and loaning them out? Purchasing these things and loaning them out, you know, especially if you were like a community college consortium where you know no one is going to buy this stuff on their own. Community colleges, by the way, are always coming up with the best ideas for stuff and people don't give them any credit because they have to work with a lot less and they come up with. They work closer together than even my own university system does. Uh, the universities in my system don't talk to each other that much, but community colleges they'll just, you know, make these huge consortiums and share information. So, uh, if you want to know solutions, like some sensible solutions to stuff, usually look there.

Library Punk 1: 1:00:59

But yeah, um, the the investment in in machines as well as a problem, and so, yeah, it's more than just the labor yeah, like in my previous job, I was a solo librarian and so I had to do all of the like library and day-to-day stuff, as well as all about the administrative stuff around like budgeting and dealing. And you know, I was just I was at a music library and we just had like a basic sort of big book scanner so that people could make copies of scores and stuff when they needed to um and the uh just to have that scanner continue to work, um, even though it was really old and at a warranty, we had to pay like I think it was something like I don't know twenty five hundred dollars every single month. Um, just so that scanner worked. Like we couldn't just like not have a subscription to it, like we that it was like a a continuing cost just to have, like the software attached to the scanner work.

Library Punk 1: 1:02:06

Um, so like, yeah, the, the companies that make the uh the tools as well, are kind of getting in on the like the rentier uh economy. Uh, well, even if you want this big, nice scanner, you're gonna have to fork over, like you know, thirty thousand dollars a year for it yeah, the, uh, the servicing agreements or support agreements yeah, um, I mean I I'll become a vulgar marxist for a second and be like, of course.

C. Derick Varn: 1:02:39

They want to do that because it's um, because real commodities have to compete with each other in the market and that tends to drive profits down, whereas rents don't. They're naturally monopolies, you can't do a damn thing about them, they're enforced by the government and it's a guaranteed revenue stream. And I have noticed in the past decade more and more things are going through that model. I don't think it's ultimately sustainable. But I also have the same fear that you guys have about de-skilling. I've thought about de-skilling for three years During COVID. I realized how much expertise was in administration. Most people know about the administrative bloat at universities, but what they don't know is that's also all the way down. Increasingly large portions of the cost of educating even students in public school goes directly to administrative salaries and we're trying to cut everything else. And sometimes I think part of that is about the fact that it's not even about money rationality. It's about power rationality that large groups of interest within the labor force will tell you no occasionally and these, these subcontractors won't, but these subcontractors often aren't even complying with the law. This is this is a weird rampant Like. I know, for example, that most charter charter schools use financial subcontractors which do not comply with federal law. So when they get in trouble they almost always get shut down and it's actually kind of part of the problem of who they're having run their books, because they don't do it themselves, they don't feel like they have the expertise, um, and this is ubiquitous in our society and I think the stuff on the internet is making it more obvious how ubiquitous it is. But it's also super expensive to have an infinitely complex number of middlemen do everything for you Like with an infinite number of systems. One of the things that we see in our education is they're constantly getting contracts with these companies and then the contract will last two or three years. We'll make all kinds of stuff, lessons or whatever for students in these systems, and then they'll just go away, often without telling us what to do, and we're scrambling for it. And I suspect that that's actually a bigger problem than at libraries, cause at least we can kind of go old school if we have to, but some of these library systems really can't. They're not, they don't have physical copies of this media, they don't exist at all. It's a very interesting problem, interesting stuff.

C. Derick Varn: 1:05:38

I would tell people to listen to your show because I actually do think these copyright laws and library stuff. There's the obvious stuff like Utah, texas and Florida passing weird rules about what we can even have in the classroom in ways that have knock on effects that even the legislators don't see till we have to deal with it. My favorite one is letting infinite challenges go for us, pulling books and expecting that we won't just pull everything eventually. But there's a lot of other more subtle issues in in this issue, in this area, that we should care about, and we are. I think it's finally guiding people to look at the encrapification of the internet, like it's just a lot less useful than it was even five years ago.

C. Derick Varn: 1:06:31

But, um, and I think also people like with youtube, so many people dependent on platforms that they don't have any control over whatsoever, even though their livelihood is directly tied into it and they can theoretically just go away. As I say on a podcast, it's going to go on YouTube, but nonetheless, I think your coverage of libraries can get people to think about a lot of these problems that are not always so obvious to the average person, and I want to thank you for that. So is there anything else you guys want to plug?

Library Punk 2: 1:07:09

No, it's just. Librarypunkgay is our website. We're on all the podcast apps. We were just on Poddam America talking about this. On Poddam America talking about this, jay has another podcast called Tender Subject about cannibalism and media, and I go on there sometimes to talk about Christianity and origin myths and stuff. So yeah, am I forgetting anything? We have a Discord so you can go and stuff. So yeah, am I forgetting anything? We have a discord.

Library Punk 1: 1:07:47

So you can go and join. Yeah, and I would say, like some of our more relevant episodes, we've done a couple on the internet archive case, including with Kyle Courtney. He and I are our friends. I was like, hey, kyle, come on, talk about this for us. We've also done a couple or an episode or two about like the. He and I are friends, so I was like, hey, kyle, come on, talk about this for us.

Library Punk 1: 1:08:06

We've also done a couple or an episode or two about like the, the issue of like porn in libraries and book bands and like that kind of thing which might be relevant to folks, and a couple of the authors that we've had on to talk about it and have brought it up as well. So we've had Corey Doctorow on, especially talking about his book Chokepoint Capital Capitalism, which talks a lot about licensing and copyright and how this affects a creator specifically. We had Chuck Tingle on and we talked about book bans a little bit with him as well. Interesting perspective on the internet archive case because one of his early books is out of print and he's worried, for example, that if it's like on the internet archive, he won't be able to set the terms on which he republishes it if he ever wants to, for example.

C. Derick Varn: 1:08:53

Um so a lot the authors that we've had on have had really interesting uh perspectives on this issue as well okay, well, definitely check out the podcast and thank you so much for coming on and talking about a bunch of issues, including ones that I didn't prep you that I was going to ask you about, so no worries, uh, see you soon.