ARL Public Policy Briefing
March 2024
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Katherine Klosek, Director, Information Policy and Federal Relations
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This month, ARL continued to advocate in opposition to the Pro Codes Act, which would extend copyright protection to elements of the law. The Library Copyright Alliance (LCA) joined a brief asking the US Court of Appeals for the Fourth Circuit to rehear Sony v. Cox, a copyright infringement case brought by Sony under the Digital Millennium Copyright Act (DMCA), but shortly after our filing, the court denied Cox’s petition for rehearing en banc. LCA continues to engage in the ninth triennial Section 1201 rulemaking, making the case for federal regulations to allow off-premises access to video games, software, and text-and-data mining corpora. Read on for a brief summary of the latest Copyright Public Modernization Committee (CPMC) meeting, with a link to view the meeting. Finally, please see a breakdown of some of ARL’s priorities in the FY 2024 federal spending bills.
The monthly Public Policy Briefing highlights developments in ARL’s public policy priorities, issues that are relevant to the research library community in the United States and Canada, and details on advocacy conducted by ARL and the Canadian Association of Research Libraries (CARL). Please encourage your colleagues to sign up for the Public Policy Briefing.
If you have questions or suggestions, please email me at kklosek@arl.org.
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Access to Government Information
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Copyright and Fair Use/Fair Dealing
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US Federal Funding for ARL Priorities in FY 2024
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Access to Government Information
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ARL Endorses Bill to Reform Preservation of Federal Records
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This month, US Congress introduced the Strengthening Oversight of Federal Records Act of 2024, which ARL endorsed. The bill includes a meaningful set of reforms to the Federal Records Act, such as codifying the National Archives and Records Administration (NARA) practice of making records retention schedules available to the public. While the bill requires federal agency heads to establish policies for employees to certify compliance with the bill’s requirements, and to communicate with the archivist of the United States of failure to do so, it is not prescriptive in terms of any disciplinary or corrective actions for federal employees.
The chair of the Senate Committee on Homeland Security & Governmental Affairs, Gary Peters (D-MI), is a lead sponsor of the bill.
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Copyright and Fair Use/Fair Dealing
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ARL Pushes Back on “Pro Codes Act,” Which Would Extend Copyright Protection to Elements of Law
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Last week, ARL sent a letter to the House Judiciary Committee expressing the substantive concerns that libraries, disability rights organizations, and civil society have with the Pro Codes Act; the letter also notes that the committee has not held a hearing on this bill. The letter preceded a scheduled markup of the bill, during which committee members usually consider amendments and determine whether to advance the bill for a vote. In this instance, the House Judiciary Committee adjourned before they got to the Pro Codes Act.
Under Pro Codes, standards development organizations (SDOs) would retain copyright protection in codes and standards that are incorporated by reference into law, as long as the codes are made “publicly accessible” online. But the bill’s definition of “publicly accessible” would entrench practices that often render the law inaccessible to the public, particularly for people with disabilities. Before the scheduled markup, ARL produced The Real Truth about the “Pro Codes” Act; among other points, ARL wrote that the Pro Codes Act is inconsistent with the premise that no one can own the law, as stated by Chief Justice Roberts in Georgia v. Public.Resource.Org. While a standards development organization has a copyright in the expression contained in a standard it drafts, that copyright can no longer be enforced once the standard becomes the law.
In 2019, the Library Copyright Alliance filed an amicus brief in support of Public.Resource.Org. ARL will continue our advocacy to preserve access to information, including elements of the law.
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Library Copyright Alliance Asks Court to Reconsider Its Finding on Contributory Infringement in Sony v. Cox
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The Library Copyright Alliance (LCA) joined an amicus brief asking the full US Court of Appeals for the Fourth Circuit to rehear Sony Music Entertainment et al. v. Cox Communication Inc. and CoxCom LLC, arguing that the three-judge panel’s holding would result in many law-abiding users losing internet access, which is essential to daily life.
The case began when Sony sued broadband provider Cox for copyright infringement, alleging that Cox did not terminate the accounts of subscribers alleged by rightsholders to have downloaded or distributed copyrighted music files without permission from 2013 to 2014. A jury found Cox liable for willful contributory and vicarious infringement, and awarded $1 billion in statutory damages. On appeal, a three-judge panel of the Fourth Circuit reversed the vicarious liability verdict and vacated the $1 billion award. However, the court affirmed the jury’s finding that Cox was liable for willful contributory infringement. Cox filed a petition for the full Fourth Circuit to rehear the appeal.
In the amicus brief, the Library Copyright Alliance described what’s at stake for internet users if the court’s holdings concerning contributory infringement were to stand. The Digital Millennium Copyright Act (DMCA) provides safe harbor from liability for copyright infringement when internet service providers (ISPs) adhere to certain conditions, including adopting and reasonably implementing a policy to terminate repeat infringers in appropriate circumstances. ISPs are likely to respond to new and unpredictable liability introduced by the Fourth Circuit’s ruling by tightening their repeat-infringer policies and terminating more subscribers with less justification, in order to maintain their safe harbor under the DMCA. Terminating an ISP account potentially cuts off internet access for entire households. In libraries and schools, every student, faculty member, patron, and employee who shares the internet connection could lose access. Millions of people rely on libraries and universities for internet access. With little or no competition among broadband ISPs in many areas of the country, those users may have no other way to connect to education, healthcare, and work. Losing internet access is a severe and disproportionate consequence for most infringers who participate in noncommercial, small-scale copyright infringement.
Unfortunately, the court denied Cox’s petition for rehearing en banc. LCA will continue to track DMCA cases in the courts, and intervene where appropriate. We will also continue to advocate for laws and regulations that protect the flow of information online.
ARL and the American Library Association (ALA) are founding members of the Library Copyright Alliance. Amici in this case include Public Knowledge, the Electronic Frontier Foundation, and Library Futures. LCA joined a brief in support of Cox in an earlier stage of this case (2021).
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Library Copyright Alliance Continues to Advocate for Regulations to Allow Remote Access to Research Materials
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LCA continues to participate in the ninth triennial rulemaking under Section 1201 of the Digital Millennium Copyright Act (DMCA). This month, LCA joined reply comments refuting objections that rights holders and other groups raised to our petitions to expand offsite access to software, video games, and research corpora.
In an earlier stage of the DMCA rulemaking, Authors Alliance, American Association of University Professors (AAUP), and LCA petitioned the US Copyright Office to allow researchers to share research corpora for text-and-data mining. In February 2024, opponents raised unfounded objections to our petition, such as suggesting that the proposed expansion would not require compliance with security requirements. In this month’s reply comments, Authors Alliance, AAUP, and LCA reiterated that the requested modification would require researchers to comply with the same restrictions and conditions required under the current exemption; described how the proposed expansion is necessary for researchers to engage in socially valuable research; and explained that the Copyright Office’s fair use analysis of the current exception applies to the proposed expansion.
In response to arguments raised by opponents of the video game preservation petition, the Software Preservation Network (SPN) and LCA asserted that the restrictions we proposed are sufficient to ensure that users of preserved video games are non-infringing, and that the proposed exemption will not harm the market for re-released games.
Finally, LCA and SPN countered opposition to the petition to remove the single user restriction for offsite access to software by pointing out that the proposed exemption requires that uses of the works in question be for scholarship, teaching, research, and private study, which are favored purposes under fair use. And, we reiterated examples of adverse effects on favored uses that are likely within the next three years, absent an expanded exemption.
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Library of Congress Pilots Secure Onsite Access to Rights-Restricted Digital Content during Copyright Public Modernization Committee Meeting
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During the sixth meeting of the Copyright Public Modernization Committee (CPMC), the Library of Congress demonstrated Stacks, the Library’s system for secure onsite access to rights-restricted digital content in the library’s permanent collection, such as journals, e-books, and digitized titles from the library’s print collection.
Register of Copyrights Shira Perlmutter kicked off the meeting by highlighting the Copyright Office’s modernization efforts, and sharing that the office is looking at ways to work with library partners to research how AI can assist in transcribing metadata from digitized records. Next, the library’s chief information officer, Judith Conklin, described how Stacks makes digital materials accessible to members of Congress, library staff, and authorized researchers in a secure manner that replicates the way in which access is provided to physical materials.
During the demonstration, the library’s product owner described how Stacks helps advance a key goal of the library’s digital strategy, which is to “throw open the treasure chest,” or share the library’s digital collections as broadly as possible. Stacks is a new access system built to satisfy the goals of the digital strategy, and the requirement that previously unavailable rights-restricted digital collections be made available to onsite authorized users in a secure manner that protects the rights of copyright holders. As users view or stream files, Stacks prominently displays information on rights and access for each item.
You can watch a recording of the CPMC meeting on the library’s website. ARL member institutions are represented on the committee by Melissa Levine, University of Michigan Library, and Jim Neal, Columbia University.
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US Federal Funding for ARL Priorities in FY 2024
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This month, President Biden signed the remaining spending bills to fund the US government through fiscal year 2024, which began on October 1, 2023. Below are highlights of how ARL priorities are funded through the end of the fiscal year, which ends on September 30, 2024. If you have any questions, please reach out to me at kklosek@arl.org. For more on ARL’s appropriations advocacy, please see this month’s ARL Member Briefing, to be released later this week.
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Agricultural Research Service
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The US Department of Agriculture’s Agricultural Research Service, which houses the National Agricultural Library, will receive $1,845,227,000 an increase of $27 million over FY 2023.
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Institute of Museum and Library Services
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The Institute of Museum and Library Services (IMLS) is funded (pg. 222) at $295 million, which is unchanged from FY 2023. Of the total, $211 million is dedicated to programs under the Library Services and Technology Act, the only federal program exclusively for libraries.
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Congress allocated (pg. 27) $898 million for the Library of Congress—a $23 million increase in funding over FY 2023—with increases for the Copyright Office, National Library Service for the Blind and Print Disabled, and Congressional Research Service.
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National Library of Medicine
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Overall funding for the National Institutes of Health (NIH) is $48.6 billion, which is down 0.8 percent from FY 2023. This allocation includes $1.5 billion for the Advanced Research Projects Agency for Health (ARPA-H), which is level with FY 2023 funding. Funding for the National Library of Medicine is unchanged (pg. 91) from FY 2023 at $497.5 million.
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National Science Foundation
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The National Science Foundation (NSF) will be funded at $9.06 billion, a decrease of 5 percent from the FY 2023 enacted level. The Coalition for National Science Funding (CNSF), of which ARL is a member, stated their disappointment with this funding, and called on Congress to increase funding for NSF in future budget cycles.
To influence the next funding cycle, ARL joined letters by CNSF calling on appropriators in the House and Senate to appropriate at least $11.9 billion for NSF in FY 2025.
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Congress did not include the language blocking agencies from using federal funds to implement the August 2022 Nelson memo that we saw in the House proposal for FY 2024 funding; thanks to those of you who pushed back on this proposal! While the funding package included a requirement for the Office of Science and Technology Policy (OSTP) to conduct a financial analysis, which is tied to implementation of the memo, this language is not concerning, as OSTP is expected to produce the report as directed.
Open Access.—The agreement directs OSTP to produce an in-depth financial analysis of the August 25, 2022, Memorandum to Executive Departments and Agencies titled, “Ensuring Free, Immediate, and Equitable Access to Federally Funded Research” including the policy's anticipated impact on Federal research investments, research integrity, and the peer review process, as was previously directed in House Report 117-395, no later than 100 days after the enactment of this act. If OSTP fails to provide the Committees with the report within 100 days, then OSTP must pause implementation of the memorandum until the agency produces the report.
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Smithsonian Libraries and Archives
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Total federal appropriations (pg. 238) for the Smithsonian Institution is $1.1 billion. Funding for Smithsonian Libraries and Archives will hold steady at $16.8 million, the same as FY 2023 appropriations.
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