@SenThomTillis: Fix the Internet Archive Price Gouging in COVID Consumer Protection Legislation

Senator Thom Tillis is hot on the trail of the Internet Archive’s “National Emergency Library” scam that we have been writing about for weeks.  Senator Tillis sent a Tillis-gram letter to Brewster Kahle in the Senator’s role as Chair of the Senate Judiciary Committee Subcommittee on Intellectual Property.  Fortunately, COVID related price gouging legislation has been introduced in Congress that could help Senator Tillis solve the problem he has identified so succinctly.

We go a little farther in Senator Tillis’s direction by identifying the Internet Archive’s scheme as taking advantage of a declared national disaster to get away with behavior outside the law to the detriment of others.  Responsible people are trying to preserve the vulnerable from the life threatening long-term consequences of shutting down the U.S. economy.  How to restart the economy is already becoming a critical role of the U.S. Government as much as supporting a host of small businesses and individual creators so they will still be there to restart in the first place. The Internet Archive is working against those laudable goals with the usual loophole seeking behavior that has become a hallmark of the life of Brewster Kahle, the founder of the Internet Archive.

We have a term for unscrupulous operators who leverage the misfortunes of others to fit their own needs: price gouging.  A second cousin to outright looting and war profiteers, price gouging legislation uses often criminal sanctions to protect the public from this reprehensible behavior.

Mr. Kahle is actively manipulating fair use into a distorted mess.  This “fair use as a superpower” theory springs from the intellectual loins of one Kyle Cortney of–where else–Harvard University.  The effect of Mr. Kahle’s willingness to believe in superpowers results in price gouging against authors.  It is exactly what the Internet Archive is up to and is exactly what price gouging laws are designed to prevent.  Internet Archive founder Brewster Kahle is engaging in verbatim copying for a simple reason–to use the current crisis to settle scores and accomplish commercial goals under the “superpower” of fair use.  Mr. Kahle has been using the Archive to undermine copyright since its inception and he’s using the current crisis to further undercut authors consistent with his long term goals.  It’s this aggression that makes “National Emergency Library” scam into simple score settling wrapped in faux sanctimony that makes the bad behavior ripe for a legislative solution.

Fortunately, Senator Tillis led the way again on these issues and introduced legislation (S. 3574) to protect Americans from price gouging during crises–that bill could address the Internet Archive’s loophole seeking behavior.  Plus Senator Klobuchar has introduced legislation (S. 3576) that authorize the FTC to investigate price gouging, and there are still two other timely bills for accomplishing Senator Tillis’s issues:  Rep. Cleaver’s Disaster and Emergency Pricing Abuse Prevention Act (H.R. 6457)  and Reps. Schakowsky, Pallone, Cicilline and Nadler introduced the COVID-19 Price Gouging Prevention Act.  

All this legislation could be used to address the Internet Archive’s bad behavior.

Surely with all these legislative vehicles, the Congress can craft protection for creators from predatory practices like the faux self-created privilege of the National Emergency Library and end its loophole seeking behavior once and for all.

As the University of Georgia Artist Rights Symposium panel on fair use noted just yesterday, it is not just books that are at issue–the Internet Archive is doing the same with music and movies as an equal opportunity looter.  At a time when ASCAP is missing distribution deadlines, the Harry Fox Agency is getting special relief to avoid sending paper NOIs, statements and tolling royalty payments, not to mention empowering the Copyright Office to delay the launch of the MLC under the new Section 710, we don’t need any more shocks to the system from the misguided ramblings of activist public and private college librarians who haven’t groked that Mr. Kahle has no clothes.