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The Internet Archive has lost its appeal in Hachette vs. Internet Archive

https://storage.courtlistener.com/recap/gov.uscourts.ca2.60988/gov.uscourts.ca2.60988.306.1.pdf
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This has been playing out for many years. And it's all because Brewster Kahle decided that an overly broad interpretation of the Internet Archive's mission trumped the rights of authors and publishers, and the laws of the United States.

When IA was asked to stop CDL - many times - he continued. The National Writers Union tried to open a dialogue as early as 2010 but was ignored:

The Internet Archive says it would rather talk with writers individually than talk to the NWU or other writers’ organizations. But requests by NWU members to talk to or meet with the Internet Archive have been ignored or rebuffed.

https://nwu.org/nwu-denounces-cdl/

When the requests to abandon CDL turned into demands, Kahle dug in his heels. When the inevitable lawsuits followed, and IA lost, he insisted that he was still in the right and plowed ahead with appeals.

He also opened a new front in the court of public opinion. In his blog posts and interviews with U.S. media, Kahle portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians (see https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st...). It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.

In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive.

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So, this case was not about CDL (Controlled Digital Lending). It was about DL with the "C" removed. Specifically the IA's previous CDL program only lent out one electronic copy at a time per physical copy held, and this case is about a program at beginning of pandemic where they suspended these limits.

There could still be appeals in store for this case, but regardless of the outcome of this case, CDL could still be quite legal (and I think ought to be -- libraries ability to lend out books without publisher permission or license has been a huge gain for society, and I think must be able to continue in the electronic realm; and I think there are good legal arguments for it, on extension of first-sale doctrine to electronic realm and on fair use).

It was not helpful for the case of CDL to have this pretty bad ("uncontrolled digital lending"?) case decided first though, I agree this was not a very strategic move.

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If you read the decision (https://ww3.ca2.uscourts.gov/decisions/isysquery/797361df-8d...), it almost entirely focuses on CDL not being legal in general rather than bringing up IA's "National Emergency Library" program. One illustrative quote:

"IA maintains that it delivers each Work “only to one already entitled to view [it]”―i.e., the one person who would be entitled to check out the physical copy of each Work. But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library. 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658 (“We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.”)."

Technically true, but people are naive to think the catalyst to file the lawsuit wasn't the NEL.

CDL had been going on for years in a bit of a cold war. Publishers had a lot to lose if they lost CDL and just lived with it. When NEL happened, they decided to use their nukes. They had a rock-solid case against NEL, so might as well use it and try to take out CDL at the same time.

If they lost CDL but won NEL, they would be back where we've started for years.

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It echos of the debacle at Mozilla. A critical nonprofit captured by an egomaniac ceo who hijacks the organization for grift or their personal crusade.
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This struck me as significant (buried in the opinion's last footnote):

"IA makes a final argument that, even if its Open Libraries project did not qualify as a fair use, we should restrict the injunction to the Open Libraries project and allow IA to continue CDL for books that IA itself owns. In support of that argument, IA argues that the fourth factor analysis would be more favorable if CDL were limited to IA’s own books. In our view, the fair use analysis would not be substantially different if limited to IA’s CDL of the books it owns, and the fourth factor still would count against fair use. So we decline IA’s invitation to narrow the scope of our holding or of the district court’s injunction."

In other words, even if one purchases a print copy of the book, fair use would not allow them to lend a digital copy of the book to one person at a time. Why the court concludes that that "would not be substantially different" is unclear from just this footnote.

> Why the court concludes that that "would not be substantially different" is unclear from just this footnote.

It's because of two primary points made elsewhere in the ruling.

1. Copyright law tolerates lending by libraries in the case of print books because those books eventually wear out. Digital copies, on the other hand, arguably do not wear out. Therefore, the court does not think that what is tolerated for print books should be tolerated for digital books. It does not address the fact that print books can be lent out hundreds or maybe even thousands of times before needing to be replaced, whereas some publishers are treating e-books as "wearing out" after about 25 reads, at which point the library has to renew its license.

2. Publishers have established a very profitable licensing arrangement with libraries for e-books, and CDL undercuts it. One could argue that if CDL had been an accepted fair-use exception from the beginning of digital lending, such a market would have never taken off, in which case the "CDL undercuts the market" argument would not have had the same weight. But here we are, like it or not, in a time when most of the major publishers have established these licensing terms, and so the court observes that a market exists that can be undercut.

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It's absurd that the most consequential part of this entire ruling is treated as a literal footnote and given no more due consideration.
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