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.
For those of you who are just learning that name from this lawsuit, here's his wikipedia page:
https://en.wikipedia.org/wiki/Brewster_Kahle
Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws.
We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle.
So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism.
So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas.
If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done.
So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist.
That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done.
But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".
Say for instance, I buy a book. I make a scanned copy and lend out the original. The person who borrowed the book, makes a copy and sends it back. I do this for 1 million times. I wasn't distributing copies, no one was distributing copies.
This is what we did in Uni. The class would contribute some small amount to the purchase of an original book. Then the person who bought the original with the classes money, made a copy, passing the original along. Within the week, every student had borrowed that book. And everyone had a copy. Do you see the murky water?
For an actor like that, you want to take cases that you can win to court, to establish precedent step by step. You want to settle cases you might lose out of court to avoid establishing precedent to your disadvantage. In this way, you can slowly change the interpretation of the law.
Taking this to court is seen as a mistake because it was a predictable loss and established a harsh precedent.
Internet Archive had lent books on a 1 reader for 1 physical copy basis for a long time, and the publishers didn't want to take it to court because the judge would need to weigh the rights of a person purchasing a physical good against copyright. They might no like the decision. It suited them to leave it untested.
Internet Archive chose to lend unlimited copies and pursue the matter to its conclusion in court rather than settling out of court.
Assuming Internet Archive were well advised, knew they would lose, and still chose to create this situation and go to court, you have to wonder why.
Are they trying to create an unacceptable legal precedent so that they can get the law changed? Some other reason I am not seeing?
A teacher buys a book which is a collection of worksheets. The teacher photocopies some worksheets out of the book to use in a non-profit educational environment. This is entirely fair use.
A teacher buys a copy of a textbook, photocopies the entire textbook, and hands it out to the class, that is not fair use because it is the entirety of the work.
There is indeed plenty murky here, and it is mostly coming from you in an attempt to incorrectly use an emotionally-loaded word in order to deceive people into supporting your position.
It's copyright infringement. It's not theft. Theft deprives an owner of use of an item.
Lots of libraries do free digital lending of ebooks in a legal way and have done so for a long time
They don't own these books, only pay-as-you-go licenses to do exactly what they do.
No, it's a different situation. In contrast, the government public libraries legitimately purchased ebook licenses (aka "renting") from the publishers and then "loaned" out a limited # of simultaneous copies in a legal manner. The book publishers approved this arrangement.
The Internet Archive didn't do that. Instead, they "loaned" out digital scans of books they did not buy ebook licenses for and took it upon themselves to name it "Controlled Digital Lending". This method circumvents the book publishers which is the opposite of what government public libraries did.
EDIT reply to: >If they have the physical book how is this any different,
When I wrote, "different situation" , it's about the "legal difference" and not "philosophical difference".
- situation with govt public libraries: The book publishers did not sue the public libraries that legitimately purchase ebook licenses from them. The publishers receive payments from that arrangement so there's no lawsuit for "copyright violation".
- situation with Internet Archive: The book publishers sued IA for copyright violation by lending books it never purchased ebook licenses for. The circuit appeals court sided with the book publishers unanimously by a vote of 3-to-0.
Those 2 situations above are different legally such that whatever precedent that's set by IA losing the case doesn't affect govt libraries that have been purchasing legitimate ebook licenses. I was trying to clarify gp's incorrect statement which could spread misinformation: "And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"
I'm very confused by this statement and I don't understand if it comes from you not working in library and information science, your definition of an archives or your opinion on what an acquisition policy should be, but lots of national archives have and continue to archive the Web.
If IA had won, IA would be hailed as a cultural hero. They hit and they missed. Claiming Brewster Kahle is against "the people who work very hard to bring new books into being" is unfair. The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years, the copyright will probably be extended again.
The top comment on HN a week after their launch of the EL is critical [0], right at the moment when HN would be most expected to rally to their defense. By the time the lawsuit was actually starting to take shape most commenters had become very concerned for the fate of the IA [1]. This is on a forum that reliably champions freedom of information, but most of us knew even at the time that what they'd done was extremely unlikely to pass muster.
The IA was never going to be hailed as a cultural hero because they stood no chance, and they are too valuable for other, unrelated reasons to make themselves a martyr. This never should have happened under the same legal entity as the web archive.
Especially if a comment is thoughtfully written, contains multiple aspects and might just get upvotes for reasonably looking at both sides like in this thread. Being thoughtful, mindful, respecting and trying to not see something in black and white can get upvotes just for being like that. And that's just one tiny aspect of why top comment isn't necessarily the most popular argument. Timing (resulting in more views and possibly upvotes) and other facotrs all play a role (not sure how much this is mitigated by the ranking algorithm.
Ie: the voters themselves may not hold any personal opinion on the matter.
I personally have donated previously to IA but now it frankly disgusts me that the project's current management has for the last few years had its focus on fighting windmills in court instead of their core mission - preserving our digital history. Hard to think I would ever donate to them again unless there's a change in leadership after this fiasco.
Present a better battle. I can't think of one - just that, enlarged in other fields. The battle against ignorance is the only one battle. Hail to the battle.
https://blog.archive.org/2020/03/30/internet-archive-respond...
This seemed already at the time completely counter-productive and unnecessary step as it basically forced the publishers to react because it made IA's digital lending indistinguishable from casual e-book piracy.
They have now created a legal precedent that, in addition to finding the "National Emergency Library" illegal, makes the controlled lending they implemented previously illegal. Ever since the district court ruling they have been able to continue digital lending only by negotiating compensation terms with the publishers.
So, instead of expanding everyone's access to the digital archives, they have managed to indefinitely limit it by creating a restricting legal precedent. This was the inevitable outcome of "National Emergency Library" and they knew or should have known it.
casual e-book piracy doesn't include DRM.
They knew. I have an MLIS and took one copyright course and could tell immediately that what they were doing was illegal/wouldn't hold up in court. For them not to know would suggest that their staff is less informed than I am, which can't be true.
It may make logical sense to think of CDL as indistinguishable from physical book lending in libraries, but because it entailed making a copy, that was never legally the case.
You can defend against the default presumption by arguing fair use. The IA did try this but it was very clearly doomed to fail, because they are providing whole copies for normal use. It was so obvious it was a summary judgement. “Fair use” is not a general term about what we think should be allowed, it has a specific statutory definition and there is no serious debate over whether CDL can be twisted into it. It may be morally right but it’s clearly legally wrong.
It may be ridiculous that yes, if you scan in a book, send it to your friend, burn your physical copy and delete your copy of the scan, that you inarguably committed copyright infringement. But that’s the law.
The ruling clearly addresses this in the section about the application of fair use to the idea of the CDL (that is, where the lending is controlled in the way we’re idealizing) and it was deemed obviously illegal. The very act of making and distributing a copy is what is infringement, and as the ruling clearly lays out none of the pillars of fair use come close to applying as a defense. Crucially, it is not transformative (it’s the same book used in the same way) and the entire work is copied.
The law is bad and it sucks and we need to change it. It’s depressing to me that so many really smart people don’t have a good understanding of this, probably because most infringement usually goes unpunished. We don’t get to deem it okay simply because it logically makes sense that controlled digital lending is obviously equivalent to physical lending. Unfortunately the act of making the copy and then distributing it changes everything.
> "This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."
Let's not flip the situation upside down though: IA didn't limit anything, the publishers did. The publishers have the possibility to make this possible if they want, and they don't want to: the responsibility is entirely on them.
Anyone going all in on either side is not on the side of maximizing access, which legitimately depends on maximizing the production of things to access.
Anyone making a crusade of only one side, without collaborating with the other, will damage both.
The Internet Archive didn’t even get dragged into court for an interesting case, and their defiance was ideologically interesting but jurisprudentially uninteresting.
It just didn’t materially hurt anyone, and it made a lot of people happy.
I think it was great, and while, sure, the battle was probably lost from the beginning, I like it when people challenge existing conventions. I’ve never stopped donating.
It took a lot of money control from the publishers and third party vendors libraries force people to use for digital lending. Those vendors can force users to create accounts, collect reading history and personal data, push ads, and sell lender's data to publishers and others. It also let publishers restrict what titles were available, remotely censor content, or remove titles whenever they wanted.
The IA was creating their own scans which limited the control publishers had and cut out much of that data collection/ad pushing. It was a better deal for readers, but it was a worse deal for publishers and advertisers.
I didn’t suddenly stop buying books on amazon when I could get them from the IA, the people who used it were the ones that could afford those books from Amazon in the first place.
Of course, me ‘thinking’ something is no guarantee, but I don’t have the numbers to say one way or another.
People were banned from exiting their homes. Libraries were forcibly closed. Emergency lending of digital books is the most noble battle they could have chosen.
Your disgust is misplaced. Your disgust should be reserved for those who exploit and hurt others. Not for idealists who fight against impossible odds. Especially when the cause (challenging how copyright law works) is one you support.
I don't think so. IA is a valuable resource for the Wayback Machine and other endeavors which are far more seated in fair use or preservation. Choosing to sacrifice the rest of IA for a grandiose or idealized vision of how the world should work is a betrayal of those who donate to IA in hopes of funding the much more tangible goal. If he wanted to take the stance he took, he should have spun the library component out of IA and served it as a separate legal entity to take on that risk.
Maybe the community trust in IA has been misplaced. The mission on their website clearly says they want to serve "All Knowledge" but I'm not alone in thinking it would be best for them to narrow their scope to just internet-related things, and specifically, things that aren't served by other archive or library sources.
IA is currently used to host and distribute large quantities of software, games, and other media in a quasi-legal mindset that is truly not something that is easily justified. Is having every Xbox 360 ISO publicly available for download on IA really serving the same mission as archiving all of the random blogs people have written on the internet? Is serving in-copyright published books?
I think the problem is that IA has multiple missions that all compete, and broadly, people assumed that they would act in a way that wouldn't jeopardize the rest of the archive.
Hard agree, and this is how I've felt since they started this whole boondoggle.
> Maybe the community trust in IA has been misplaced. The mission on their website clearly says they want to serve "All Knowledge" but I'm not alone in thinking it would be best for them to narrow their scope to just internet-related things, and specifically, things that aren't served by other archive or library sources.
I'm a librarian/archivist and my very first career goal back in the 90s was to work for the IA - digital preservation is why I went into the field. They've essentially torched my opinion of them by doing this, and I was one of their biggest supporters/proponents. Even my most charitable readings of their actions lead me to think that either their egos got in the way (because oh goodness did they ever get accolades within the profession and librarianship/archivism has a severe problem with not thought out armchair activism) or they're just idiots when it comes to tactics and strategy. Either of which suggest to me that they are thoroughly unsuited to run an archive of any importance.
Trials are for when parties disagree about the facts, e.g. was the light red or green.
I've never donated to them and figured it was the right choice after they started excluding websites from the WayBackMachine - the most vocal case being kiwifarms [1], where they supposedly did so after intervention of a family member of some higher-up [allegedly].
EDIT - as I remembered, the list of excluded site is a LOT larger [2], with a lot of them simply being removed on request. On one hand I understand their choice in this matter, on another - you can willingly be excluded and potentially hide archival stuff of importance...
[1] https://www.theverge.com/2022/9/7/23341051/kiwi-farms-intern... [2] https://wiki.archiveteam.org/index.php?title=List_of_website...
https://web.archive.org/web/20240000000000*/https://www.reut... ("This URL has been excluded from the Wayback Machine.")
https://archive.is/B1T2P#selection-2151.0-2155.234 ("A Reuters Special Report | How an Indian startup hacked the world")
https://www.politico.com/news/magazine/2024/01/19/india-judg... ("How a Judge in India Prevented Americans From Seeing a Blockbuster Report")
IA cannot be trusted to be an archive of record for news stories; they memory-hole them freely and liberally. (What a total mess the internet has become, pontificating generally, that we can't rely on even tier-1 newswires from not getting scrubbed from history. No one has the power to walk into dead-tree libraries and physically tear up archived newspaper articles they want to hide. But in the internet world, that's becoming an easy and commonplace thing censors do, and get away with. The internet was supposed to be the opposite of this. People who erase the past, and especially the self-styled Internet Archive, have abandoned the core values the internet was meant to idealize...)
(It would still be voluntary even if IA had been ordered to do something in India, because as is the topic of the thread, IA is a US-based nonprofit under the jurisdiction of US courts).
Of course, letting the most restrictive jurisdictions set the global norm isn't great, either.
Anyways, I fully understand how one would make the choice to not piss off India. From your source:
> "We were faced with the decision of either keeping the article available and risking having legal action taken against us, and incurring a costly defense in an unfamiliar venue..."
That's under duress and coercion, and doesn't meet my definition of "voluntarily", even if one could still fight.
Does anyone know of one or want to set one up?
(To be clear, it's not that I'm a big fan of Kiwifarms or anything, but Byuu's tragic story is enough for me to think that the site has significant cultural and historical value, regardless of its ethical orientation.)
Even if it didn't, preserving places like KF is necessary to prevent future scholars from having a really warped idea of what the Internet was like in the 2020s. I find KF extremely off putting (I lurked there long enough to form my own opinion), but I'm not sure how a person is supposed to research how to prevent unhealthy communities from forming without examples of said communities.
I also find it darkly hilarious/sus in light of the fact that one of the primary points of the social justice movement is how we've whitewashed/erased our history. (e.g. how Americans' history education has minimized the perspective of Native Americans or omitted uncomfortable facts about racial discrimination). Are they against historical revisionism or do they just think they'd pick better things to 'erase'? I feel the same way about censoring books that use the n-word: knowing that was at one point acceptable really hammers home how acceptable open racism was for most of American history. Censoring/omitting places like KF from archives (when those archives claim to be representative/neutral) is going to give the impression that there was far more consensus on the 2010s/2020s Internet than there actually was. It's misleading.
>Would you support a complementary archive that took snaps of the excluded websites?
Now that I have looked at it, I likely will. I never was one to donate my money to anybody (especially with no income...), but now being employed I believe it's only fair to give them a little bit here and there for them to keep afloat.
>To be clear, it's not that I'm a big fan of Kiwifarms or anything
Neither am I. I just believe that an archive shouldn't be biased - and should keep all stuff up as long as it isn't strictly illegal, eg. CSAM or piracy. This is a blurry line though - I myself would like to be able to check out a hypothetical neo-Nazi group's website after they are all arrested for doing X to check what its contents looked like - but I am definitely in a minority here. So, essentially... >the site has significant cultural and historical value, regardless of its ethical orientation. Significant can be discussed, but I see it as a very subjective measure.
> Archive.is’s authoritative DNS servers return bad results to 1.1.1.1 when we query them. I’ve proposed we just fix it on our end but our team, quite rightly, said that too would violate the integrity of DNS and the privacy and security promises we made to our users when we launched the service.
> The archive.is owner has explained that he returns bad results to us because we don’t pass along the EDNS subnet information. This information leaks information about a requester’s IP and, in turn, sacrifices the privacy of users.
[1] https://community.cloudflare.com/t/archive-today-is-failing-...
> Note again that a query MUST NOT be refused solely because it provides 0 address bits.
The shenanigans are absolutely on archive.is's side here.
Hi, Mek here (speaking as myself). Disclosure that I run OpenLibrary.org at the Internet Archive. I'm sad to hear you're disappointed with how things are going. I share your frustration.
I wanted to join in and +1 one of your comments: the importance of preserving our digital history. Preservation is a core mission of the Internet Archive and central to the tagline, "Universal Access to All Knowledge".
At the end of the day, the reason to preserve cultural heritage is so that it can be made accessible: Eventually. In ways that serve people with special accessibility needs who are otherwise left behind. In formats and environments capable of playing back materials that no longer have available runtimes. With affordances that make these materials useful and relevant to modern audiences.
An important reflection is that a key role of archives and libraries is to preserve cultural heritage by building inclusive, diverse collections, which span topics and times. For decades, libraries pursued this goal by purchasing physical books and, over time, growing and preserving collections of materials that serve their patrons. Not just bestsellers. Weird, obscure, rare research materials about rollercoasters, genealogy, banned books, stories from lost voices, government records.
The shift of publishing to digital [especially how it's done] fundamentally affects how [of if] material may be archived or accessed. It's not enough to assert the importance of preserving culture. One must actively advocate for a future where media can be archived. As Danny suggests (https://news.ycombinator.com/item?id=41454990), this is something the Internet Archive has been acting on since its inception.
What we're seeing today is a shift to digital, designed and led by publishers who are engineering a landscape with new rules where libraries can't own digitally accessible books. Libraries are being offered no choice, no path forward, but to lease (over and over) prohibitively expensive, fixed pool of books, that disappear after the lease period is up. This means libraries have ostensibly lost their ability (first sale doctrine rights) to own, grow, and preserve a collection of books over time... A fundamental ecosystem change that threatens the very function of preservation that you and I so strongly value. Preservation necessitates the ability to preserve. Preservation is a fight for the future and I believe a preservable future where libraries are allowed to own digitally accessible collections of books is a future worth fighting for.
That doesn't mean we should only be looking into the future. Looking at today, the only permanent collections libraries do / can own and preserve are physical. So what other question is there besides: how can libraries make the materials they rightfully own, preserve, and are permitted to lend accessible to a digital society? How may libraries make the digital jump to help millions of physical books enter public discourse, which takes place ostensibly online?
In my opinion, this is the discussion we're having. The Internet Archive continues to preserve millions of documents of all sorts: websites, radio, tv, books, scholarly articles, microfilm, software, etc. A very small team of staff are doing the best job possible to make sure that, not only does our cultural heritage get archived, but that in the future, archives and libraries have the right to exist, be useful, and that there are materials archives are permitted to preserve; that important research resources are made accessible to the public -- especially those who have traditionally been left behind. Someone needs to fight for the future that lets us continue preserving the past.
I'm personally very open to your suggestions on how the Open Library can improve and appreciate you taking the time to share your thoughts.
I love computers, and so many aspects of the digital age. But one of my biggest concerns with this era is the impermanence of information. We have seen people trying to use this impermanence to rewrite the perception of history. This is not new (Tulsa Race Massacre), but the new systems break quicker than paper and cutting people off by expiring a license or DRM key is a lot easier than physically seizing every copy of a written work.
The transition to digital threatens to completely remove our ability to archive our culture as a public good, and puts that power solely in the hands of moneyed interests. So much human effort has been put into establishing and maintaining systems for free distribution of information. We are watching it being stripped away and selectively leased back to us, and once that process is complete, it will be much more difficult to get back to where we are now.
I am not a legal expert, and I have no special insight into how the legal process has gone or could have gone.
I personally want to thank the Internet Archive for fighting to preserve our rights. I appreciate The Internet Archive standing up and taking on this fight, and if there was a better way to do it then someone should have done it.
Fights for public rights over private interest will always be uphill battles full of road blocks, and take sustained effort. I am going to donate $100 towards The Archive's continued legal battles (both defensive and offensive).
Internet Archive Forever! I hope to catch you at one of the archive events.
Why did IA pursue this case? You all lost in summary judgement, did your attorneys not tell you that you all had a terrible case and were likely to lose?
You have damaged your credibility and reputation as well as created negative precedent.
All in all, this seems like a massive blunder and I was hoping you could share what strategy you all are pursuing?
Not really. This put a huge chilling effect on real attempts at CDL, which IA was not.
Was anyone else doing anything? Or standing ready to do anything?
The payoff for winning would have been massive, but if the IA shuts down because of this, so will the cost for losing.
IA isn't going to shut down over this, I don't think. I don't think they'll pay any damages at all, since there's a statute that suggests damages be remitted for nonprofits.
Again: the real damage is a 2nd Cir. precedent that 1:1 CDL fails the fair use test. That's going to hurt other people. This happens often enough that there's a saying about it: "bad facts make bad law."
For some reason this was acceptable in physical form for hundreds of years. CDL is just making it more convenient for our modern reality.
Libraries don't make copies. They lend you the actual books.
Copyright is literally right to copy. Scanning the book and doing something with, such as lending it forward, is copying.
(The covid thing strengthens the case of the book guys - the CDL suddenly let anyone get anything because Archive decided to change the rules unilaterally)
There are special kinds of copies that specifically don't count under copyright law : basically anything "cached", be it in RAM, browser caches, or similar.
I don't think that characterization of Kahle is unfair at all. His position was unreasonable, determined to be illegal, and damaging to people who depend on copyright to license their work.
I understand the court decided this wasn't okay. That aside, how was it hurting working authors?
It also discusses that there is a very good reason why digital libraries don't typically get to have perpetual rights to a work at the retail (or used) price for a print book. Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. The ruling points out that publishers originally sold ebooks to libraries at the same pricing as print books, but abandoned the practice because they discovered that it was not financially sustainable.
And that's ultimately where the harm comes in. The IA is trying to create a loophole that subverts the income stream of all the people who work on a book by offering derivative works - which are never fair use; fair use is for transformative works - without paying the market's customary price for acquiring rights to create and distribute derivative works.
(As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers".)
As someone who understands the ruling and why IA lost completely, I still hate this argument, because it gets the history backwards. When first sale was put into (case)law, ebooks didn't exist. First sale doesn't exist because "oh, well, the book wears out eventually". It exists because you have an ownership interest in that copy of the book and copyright law has to respect your physical ownership of that property. Once you have sold a copy, your rights as a copyright owner are exhausted.
With digital distribution, the law decided that, no, there is no rights exhaustion whatsoever. And this is mainly because the technology was made after the law was horrifically unbalanced (or re-balanced) in favor of large publishers. CDL absolutely has no leg to stand on in the courts, but it is the sort of thing that would make sense as the legal basis for a new rights exhaustion regime that was properly legislated in Congress.
> As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers".
I've talked about the habit of copyright reformists / abolitionists ignoring the "creative working class" in the past. The headline artist on a work is most likely to be able to survive off non-royalty income because they have social capital that the creative working class does not. On the other hand, publishing firms don't give a shit about the creative working class either! A lot of media companies are run by people who think generative AI is going to let them eliminate entire classes of creative labor and replace it with ChatGPT prompts.
I'm not entirely sure referencing the opinions of headline artists helps either. In contrast to (but not negating) what you've said, I've heard authors complain endlessly about publishers, too. Things like, oh, we don't want to fund the third book in your trilogy, but we also aren't going to let you trip the rights reversion clause in your contract, so you just can't finish the story. Shit like that. Publishers' valuations are based at least in part on their total IP catalog, so a work they don't want to touch anymore is worth more to them dead than alive.
Ultimately, the law will either have to change to be fairer and recognize the buyer's investment or digital copying (piracy) will overwhelm it. It's not if but when (technology almost makes that axiomatic).
This will not happen immediately but as US influence in the world declines other fairer paradigms will emerge. As we've seen already, probably about one third of the planet's population pays little heed of copyright law, or it does so in name only—and that number will only increase with time (and as copying tech improves even further).
The US and Western countries have a choice, be fairer and less greedy or suffer the consequences.
The money followed the value.
The value of distribution is no longer there. We are trying to push yarn up a chimney.
I like living in a world where authors make a living by writing books, but if the inherent value isn't there then it's all fake, fake fake.
This is the same predicament we've been in for years with other forms of media, but those with big corp backing have managed to synthesize value through various forms of sabotage like DRM or linking their software to a remote server somehow. We've come to accept it because there's value in dodging all of the nonsense.
Consumers will always be the barometer for fairness; if they perceive value, they will pay for it. But all the controversy is about fairness for the authors and publishers. If authors can figure out some money-making scheme then great, but let's not concern ourselves with "fairness" for the author because that went out the window a long time ago. This is all just a big money grabbing game at this point. (And what they really mean is fairness for popular authors anyway.)
Maybe the future will look different. We need authors, we need editors, but do we need publishers? Probably not. Maybe a trend will form where groups or individuals commission a work from an author, taking the place of the publisher on a more ad hoc basis. Or maybe concepts like Patreon will evolve to better compensate authors. I don't know exactly what it will look like, but I do know that targeting groups like the Internet Archive is nothing more than a delay tactic.
You may be able to gauge this from my earlier post where I've advocated that creators should receive fair recompense for their work: https://news.ycombinator.com/item?id=41455357. (I've written on this topic many times over the years and I've always advocated creators should receive fair and reasonable dues.)
I agree with you about it all being backwards. Unfortunately, it's a fact that wasn't helped by opportunistic creators such as Hugo in the 1880s as I pointed out here: https://news.ycombinator.com/item?id=41456596. That said, times were different back then and despite my criticism of Hugo et al they had a valid case. Same can be said of Gilbert & Sullivan and the pirating of their operettas (see 'background'): https://en.m.wikipedia.org/wiki/The_Pirates_of_Penzance.
What happened in 1886 at Berne was overshoot albeit an understandable one. The trouble is that once in place international law is essentially entrenched forever, revising it is is nigh on impossible. Unfortunately—but understandably—rights holders aren't going to give ground without a struggle. This I reckon is the crux of the problem and it's primarily the publishers who refuse to give ground—not so much content creators.
The issues are many and they range across a vast field—from how much does a creator owe back to society from it having nurtured and educated him/her through to publishers being bloody-minded over protecting orphaned works, through to DRM, through to equity/arguments over access to information which has educational implications—thus ultimately it's of strategic importance at a national level (China's lax IP laws have helped it enormously, the US and Western nations ought to take note).
As I see it, content creators and consumers need to join forces to arrive at a mutually satisfactory agreement and I see little room for both Big Tech and existing authoritarian publishers in such an arrangement. (And I agree with you, 'consumers will always be the barometer for fairness; if they perceive value, they will pay for it'.)
I'd add that both parties ought to encourage and foster this symbiotic relationship ASAP, as at best both will benefit, at worst it'll be the least destructive option.
What I fear most is that copying tech will become so easy that any sense a human can experience will be able to be copied. Very soon one will be able to capture just about everything one sees, reads or does with great ease, copying by default will become the norm. This could easily become very destructive and not benefit anyone, creators, users and society will all be worse off.
Copyright, IP and patents are very complex matters that just can't be left to hip pocket arguments and or gut reactions over property rights and it's time the debate matured to reflect this. That won't be easy given that money is involved.
Like you I don't know how it will end up but it's clear that things could go horribly wrong if sense doesn't prevail. Let's hope it does.
> What I fear most is that copying tech will become so easy that any sense a human can experience will be able to be copied.
For many people and mediums this is already the case. What bothers me most is that this normalizes outlaw behavior. That is usually an indication that the law is wrong, but in the meantime it erodes our collective morals.
Right, copyright law needs to respect your ownership of that physical property. That bound collection of paper. That stamped piece of vinyl. That reel of magnetic tape. That plastic disc. The copyright protects the ideas and creative stuff on that medium, but not the actual medium itself. You don't actually own any of the ideas that medium contains, but you do own the actual medium.
But what property do you actually own when you "buy" a digitally distributed work? What is the "that" in this case? A collection of bits that are indistinguishable from every other copy of the file? Isn't that what is actually copyrighted, and not the "that"?
In the law, a "license" is just permission from a copyright holder to do something. There are no standard terms like there is with a "sale", because licenses are usually tied to a contract[0]. And contracts can have really arbitrary provisions[3]. For example, fair use says you don't need permission from a copyright holder in order to review a game. But if that game is only available digitally, the copyright owner solely dictates the terms upon which the game is sold, through contracts and licensing. And that contract could absolutely just say "you agree not to review the game in exchange for permission to copy the game to your hard drive and RAM[4]", in which case there is no fair use anymore. In fact, Oracle already did this[1].
The law has no counter to this because, for the vast majority of copyright case law history, nobody needed permission to purchase a physical copy of a creative work[5]. Physical media has very well established consumer rights that were codified back when copyright law wasn't nearly as blatant a power grab. Digital is very recent, and copyright law has gotten significantly stricter. It's often said that "the law needs to catch up to technology", but that usually gets said in the context of "I thought of this cool little excuse to not get permission[2] but the court won't agree". Where technology really outflanks the law is in inventing new ways to strip consumers of their rights, by turning things that didn't need permission into things that now do.
[0] US law only. In other countries licenses are treated as separate from contracts, but this is mainly something plaintiff lawyers have to remember when drafting complaints, since "doing something without permission" is copyright infringement but "getting permission, but not fulfilling your end of the bargain" is breach of contract here.
[1] https://en.wikipedia.org/wiki/David_DeWitt#DeWitt_Clause
[2] Which will never be granted, mind
[3] The only real restriction on contracts being that you can't literally sell yourself into chattel slavery. BTW, in unrelated news, never upload your brain into a computer if you happen to like the 13th Amendment.
[4] DON'T GET ME STARTED ON MAI SYSTEMS CORP VS PEAK COMPUTER INC
[5] Thomas Edison tried.
> Speaking purely in the realm of Law
Let's argue this from the basis of expanding the ideas of copyright to something newer and better for this digital age. As mentioned, these days we're really just buying licenses. How do we better define property rights with this new(ish) concept of ownership to help individuals continue to have useful rights while not just suggesting copyright overall is now meaningless and creators no longer have any protections? Do we codify some basic rights of ownership around what a license is, what it means, and how one transfers ownership of it?
Anyway.
First you need to legally define the kinds of licenses we care about. There's a bunch of very good reasons why permission can't be sold, so we want to make it clear that we're only talking about things that function like a sale. That is, one-time purchases of works that are downloaded to a device and whose license grants fall within normal use of that work. This is the sort of thing that needs to be drafted water-tight because the industry absolutely will search for excuses to not comply with the law.
Second, we need to define how a transfer can be done and who needs to honor it. This has per-work and per-service considerations, especially in games[1], which have anticheat and toxic player removal. There are times where a copyright owner has a legitimate interest in taking away the thing you bought because you are ruining the experience for everyone else. So we need carveouts for our carveouts, both of which need to be carefully drafted to not interfere with anticheat.
And this is only considering digital-to-digital first sale. That's easy to do because the systems already exist to revoke and delete your ownership over digital copies of works; you just aren't allowed to use them for first sale purposes. We're ultimately just dictating that certain kinds of DRM license files have a legal mechanism to transfer between owners.
Physical-to-digital schemes like the IA's Controlled Digital Lending pose an additional problem: there's nothing to physically enforce the destruction or disabling of the physical copy when you convert it to a digital one and lend it. The book doesn't refuse to open because someone has it open in Adobe Editions. Everything is done on the honor system and there's massive incentives to cheat CDL. The discovery on the IA lawsuit showed that they basically had never complied with their own legal theory. They had partner libraries who were counting copies of books as digitally loanable without actually taking them out of circulation, and when IA had discovered this on their own, they never did anything to take that library out of the system.
An actually legal CDL regime would need infrastructure to support itself. I'm talking legally qualified DRM banks that could lock up or burn books in exchange for DRM limited files that accurately represented the time in which the physical side of the book was inaccessible. That's... still extremely complicated. Actually, screw CDL. If we're talking about amending the law, there is a far easier way to go about fixing the problem with ebook lending: Book Communism!
Compulsory licensing is a scheme in which the government sets the price of a specific kind of copyright license. If you pay that amount of money to the copyright owner, you automatically have that permission, they can't say no. Naturally, copyright owners would liken this to theft, but they thought your dad's VCR was a home-invading rapist[2], so I don't consider their opinions on the subject to be meaningful. The idea is actually pretty straightforward: having a government-set license price makes licensing a lot more straightforward. Creative work owners can't make silly demands of users or withhold shit because their """strategy""" that quarter was to keep something off the market or sell exclusivity[3].
The specific imbalance that IA tried to fix with CDL is that libraries, being public services run by local governments, do not have negotiating leverage for favorable ebook lending terms with major publishers. "Just lend out physical books digitally" fixes the problem for libraries but the infrastructure needed to make this not unfair to authors or publishers is silly. Why can't we just have the federal government say, OK, we'll sell licenses in which any library can pay $X to the owner of a given book and then digitally lend it out Y times or for Z days? The Copyright Office or some administrative judge can determine fair values for X, Y, and Z.
[0] For one thing, if you are a small artist, you effectively do not have copyright protection because the enforcement costs for a single infringer greatly exceed your total revenues. Copyright is already a failed system.
[1] For example, if reselling whole accounts is legal, then I can buy hundreds of accounts, play the game I want to cheat in on each one, and switch accounts whenever I get banned.
If reselling individual licenses is legal, then after I get banned, I can resell the license - which continues to remain valid - and get my money back so I can repurchase the game on a new account with a fake identity.
[2] https://en.wikipedia.org/wiki/Jack_Valenti#Valenti_on_new_te...
[3] A related wrinkle in the CDL story is that publishers really, really hate libraries. Not because they let people read books for free - in fact, library circulation is actually really good advertising for sequels that won't hit libraries right away. The problem is that libraries are run by book fans, so they're going to recommend books they like, not what the publisher needs to sell that month.
I am skeptical of government bodies having the agility to appropriately respond to market needs in a timely and equitable fashion, since they've done such a bad job with the rules in every other area. This is not to say that it can't or shouldn't be done, but definitely deserves careful consideration. What mechanisms do you imagine might keep such a system functioning healthily?
While physical books might indeed wear out, I think they wear out way slower than what current library e-book licenses might suggest (apparently two years or 26 lends seems to be popular in the US? – my library has tons of books older than two years, and back from when they used to stamp the return date in the back, quite a few books had hit 26 lends without falling apart yet).
My understanding is that, for the purposes of determining fair use, a derivative work is substantially the same thing but in a different format. Transformative work must involve significant additional creative contribution "Changing the medium of a work is a derivative use rather than a transformative one." They cite previous case law that holds repackaging a print book as an e-book as a "paradigmatic example of a derivative work." The law also offers some paradigmatic examples of transformative work, such as criticism, commentary and scholarship.
Based on all of that, I would guess that, for the purposes of copyright law, a JPEG of a painting is absolutely a derivative work and not a transformative one.
on edit: actually I also think that a JPEG of the Mona Lisa is derivative, but just noting that the value we ascribe to the Mona Lisa is something like the concept of Mana for art https://medium.com/luminasticity/art-as-a-tool-for-storing-m...
The question was "how is this hurting authors" and your reply is to carry water for publishers?
> However, the Internet Archive expanded its library project during the covid-19 pandemic. It launched the National Emergency Library, allowing an unlimited number of people to access the same copies of ebooks. That’s when the publishers banded together to file the lawsuit, targeting both online libraries.
The digital copy could be checked out by many people at the same time.
This is why this case was so frustrating. In order to challenge long standing thought, you need to build an airtight case. Lapses like the above and then steering users to buying used copies from BWB shows IA was not ready for a case.
The NEL gets a couple of sentences, the bulk of the ruling is about the CDL
If it was over the NEL, the case would have been over ~4 years ago when they shut down the NEL.
You may argue that that shouldn't be the paradigm, but one library unilaterally changing it denies the authors their say on the change, either through licensing or legislation.
As for authors, nothing changes here: libraries lent their physical books without paying before.
In almost every other country in the world libraries do pay a royalty to lend books.
It's notable that the IA service was not geofiltered to the US only.
The IA doesn't geofilter it's availability, and therefore it is subject to the laws of the country it does any substantive distribution to, same as every other website in the entire world.
[1] My favourite library branch in my town is, while associated with the city library system, partly volunteer-run and was consequently the last to computerise its lending system, and therefore kept on using the classic system until I think somewhere around 2010 or so, whereas the rest of the city library had already switched in the 90s.
I remember seeing books that had been lent easily over 100 times.
Not to mention a book can be rebound by a library if it's purchase price is high.
While I understand the plight of publishers, I also think digital rights favor them too much, atm.
It benefits the publishing megacorps on a different basis, authors make very little on book sales or loans.
I mean, sure, but ~270 congressmen declaring it would also change it, and it would be viewed as legitimate. Quite probably against the same level of protest.
The amount of say the authors have doesn't actually seem to impact legitimacy much. That only seems to vary with the amount of power the person declaring the change has.
IA had the whole film online as bluray quality rip.
What's the difference between the IA and Kim Dotcom at that point?
Do IA respond to removal requests? Did IA staff upload that film?
For that, Google Books took works still in copyright and made copies for commercial purposes, they somehow were allowed.
The difference with Kim Dotcom is possibly that he sold (!) more movies through his activities.
You could argue that donations amount to profit, but that's a line I'd be afraid to cross.
None. They have, for a long time now, become a good place for outright piracy - both for downloaders and uploaders. It's nice to have such easy access to perfect DVDrips of GTA: SA v1.0 US, but... definitely NOT legal.
Even if that were the case I don’t think it’s acceptable.
Physical used goods have limitations on transfer rate. If you want a used book you have to go to the store. Or have it shipped across the country.
I adamantly oppose a global digital pool with instantaneous transfers. In that world you never need to sell more than peak concurrent users. If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food.
The same argument applies to “used” digital movies and games. It’s nonsense.
https://help.archive.org/help/borrowing-from-the-lending-lib...
IMHO, people who could afford the book are unlikely to have the patience to work through this process. Indeed, downloading from a pirate site would offer a lot more flexibility for the reader.
That is precisely the agreement that existing libraries have with publishers now. The digital copy that they buy to lend out comes with restrictions on how many copies can be lent at a time, and also costs a lot more than just buying one copy of the book.
If we want media licenses to cost thousands of dollars so they can be loaned out digitally fine. That's something that can be fairly negotiated.
What I oppose is a regular off the shelf purchase being used for unlimited, instantaneous digital rentals. That's disastrously terrible idea.
Your idea is to eliminate the very concept of a library where ebooks are concerned.
You may want to rethink your argument.
You know how some people think rent control is a good idea but then every economist explain how it’s actually bad? That’s how I feel about “impose the restrictions of physical goods onto digital”. It’s a terrible idea that has terrible ramification if you follow things to their logical conclusion.
> Your idea is to eliminate the very concept of a library where ebooks are concerned.
Yeah that’s totally fine. The metaphor of an ebook library is bad and illogical.
If you wanted to write digital-first copyright laws you wouldn’t invent a faux library. There’s better solutions out there.
We're only talking about applying that to lending, which otherwise wouldn't exist, so I don't see the issue. And more importantly it's applying the rights you get with physical books. ...Come to think of it, what restrictions are being added that don't already exist in our current broken state of digital copyright?
Do you have a specific grievance with respect to imposing lending restrictions on ebooks to mimic their physical counterparts?
Your analogy alone is strained and doesn't serve this topic well.
> Yeah that’s totally fine.The metaphor of an ebook library is bad and illogical.
I contend that the information contained in the books and not the format they're stored in are what matters. People checkout books from libraries to read their contents, not to sniff the paper they're printed on.
> If you wanted to write digital-first copyright laws you wouldn’t invent a faux library. There’s better solutions out there.
Do tell of these better solutions that don't require waiting several decades for all the pre-Internet baby boomer octogenarian lawmakers and judges to die off from old age.
E-book lending is pretty much the only accessible option for people with sensory impairments. I think they're a larger portion of the population than writers, so why do writers' monetary interests overwrite accessibility concerns? Plenty of books aren't available in large print or audio versions; e-books are a great way for us to read those books. Big text is best text.
If you really, really want just pirate it. It's economically equivalent.
So you're against the existence of libraries at all? Since they provide free access to the fruits of someone else's labor? That is at least an honest position. I won't pretend to have any respect for it, but at least it's consistent.
People with impairments can also check materials out from the library. The existence of a library for some things does not mandate a library for all things.
> So you're against the existence of libraries at all?
I think that first sale doctrine strikes a great balance for physical goods. If you buy a hammer you can later sell that hammer. Or you can give it away. Or you can setup a little library where people can borrow it either for free or a small fee. Over time the hammer will degrade and some people might prefer a new hammer. The rate at which a hammer can exchange hands is severely limited by space and time. I live in Seattle and can not easily borrow a hammer from a friend in New York or London.
Digital goods are a different beast. Copies can be made instantly, perfectly, and effectively for free. There is no such thing as "borrowing" an e-book. There is only being allowed to make a perfect copy or not. Digital goods are not bound by space or time. A global library with infinite, instantaneous transfer of rights would limit sales to peak concurrent user count. This would obliterate economic incentives for producing new content which would be, imho, a catastrophic net loss for society.
Physical good and digital goods are extremely different. They can and should have different rules. Trying to force them under a single umbrella is sub-optimal for both.
If I were King my changes to copyright law would be related to duration. I'd shorten it from life+70 years to something like ~30 years with the ability to extend it an additional ~20 years with an increasing per-year fee. And possibly add some form of "use it or lose it" after just ~10 years. Or something along those lines. I am not King so I've not fully thought this through. However as someone who makes and sells proprietary entertainment software I have thought through the ramifications of global digital libraries with instant and infinite transferability.
We have an enormous surplus of content creators and most of the content is not very good. I don't see why we need to structure our economic system such that people must be able to making a living churning out mediocre scifi/romance/mystery novels. If they can, great, but I don't think that's the goal we should be aiming for with copyright. There would still be plenty of novels turned out every year even if copyright did not exist.
> In that world you never need to sell more than peak concurrent users.
That sounds good to me, and I doubt it's really much more than the number of sales now. Many/most people would still buy their own copy anyway, just as they do today when a new book comes out.
Copyright law as structured today is destroying more art than saving it; the number of out-of-print but copyrighted works that are vanishing from human knowledge is astronomical.
Yikes. I can not possibly disrespectfully disagree more with everything you said.
Baldur's Gate 3 has sold about 15 million copies. It's peak concurrent user count on Steam is 875,343. A difference of about 20x that will continue to grow as BG3 will sell meaningful copies over the next 10 years.
Limiting sales to peak CCU is categorically insane. And deeply illogical.
And yes I am talking about a video game because the copyright laws for books and games are the same. I would expect the CCU/sales ratio for most successful books to be even larger than that of games which have a much more hyped launch day.
Games can and do already get around this anyway via software, if you want to argue the laws should work differently for them then I’m open to that, but I also don’t think games matter enough on a societal scale that we should tolerate current copyright laws in order to protect video game studios over the long tail of disappearing orphaned works.
> Library game borrowers are not big game buyers in the first place.
That's because today there is effectively no such thing as digital game borrowing. If there were then there would be a platform that seamlessly grants and revokes licenses on application startup/shutdown.
People just want things cheaply. Why pay $60 for a game when AmezarakGamesStore lets you play for just $5? People used to buy used discs from GameStop for $55 instead of buying a new copy for $60. Consumers don't care. They justifiably just want to spend the minimum amount of money necessary!
Libraries do not serve the interest of publishers (and let's just focus on publishers because if we're being real here, publishers are the ones who stand to lose money - "think of the authors" is just a distraction)... i digress, Libraries exist as a benefit to society, they aren't supposed to neatly fit into absolutist capitalist ideals.
No. I'm focusing on all media - books, tv, movies, games, etc. It's one set of copyright laws.
> so are physical libraries also nonsense?
Copyright strikes a balance of rights between content creators/owners and content consumers. Physical libraries with the limitations of physical transfer strike are a reasonable balance. A global digital pool with instantaneous and unlimited transfer of non-degradable goods does not strike a reasonable balance.
That's a more interesting argument. I think it's valid, abstractly at least.
> Copyright strikes a balance of rights between content creators/owners and content consumers
Originally sought to, perhaps. However copyright has devolved into almost entirely serving the interests of the transferred owner who are overwhelmingly huge publishers.
It makes sense to me that a digital library poses an existential threat to the business model of those large publishers who have gradually moved away from obtaining or encouraging the creation of new original works (the original intention of copyright) to reselling and repackaging existing content over and over again. This is why things like DRM exist, not to prevent piracy, but one one many mechanisms serving this strategy by controlling how ordinary consumers can consume what they "bought", when, where, on what, for how long... so many types of restrictions all serving to extract the maximum economic return for each original piece of work they own - A library completely undermines that strategy, because it necessarily removes most of those mechanisms to function.
Not at all. Creators have no ihnerent rights that need to be balanced. Copyright is only granted with the argument that encouraging creation benefits society. That is the only argument for its existence.
To push the wallstreetbets analogy further, a hedge fund that bets on something risky and loses big is fine. But you don't just "hit and miss" at a large scale when you are in charge of trillions in retirement/pension funds. It just should not be part of the thought process in the first place, it's the completely wrong mindset.
Not that there's no room for activism , but it should be delegated to someone else or by supporting another group or organization that could take the fight and have much less to lose.
I can't just scrape nytimes.com and re-host it on my own website legally - that's clear copyright infringement. Google news quoting article excerpts was legally controversial, as was their book search function, and their archive option.
I always assumed website owners were just sorta turning a blind eye to archive.org because (a) it's slow and (b) it doesn't get indexed in google
IA is physically holding a physical copy of the book, and then on a 1 at a time basis, allowing digital access to that physical book.
It would be like, purchasing a copy of the new york times, scanning it, and letting people online read it one at a time. Which would be perfectly legal except for the scanning and online. It paints the law as insane, not IA as flagrant copying.
You need a little bit more wisdom to change extremely entrenched laws. Simply breaking them has close to zero probability of changing them. This was evident from the start.
IA already had some disputes with rights owners for some of the content they archived. They should have progressively resolved these disputes until some pattern emerged where either mass archival of old movies, TV shows, news videos, video games, and similar was broadly acceptable, or broadly not. IA could have won this. I think most publishers were unwilling to burn money on enforcing their copyrights with products they no longer exploit.
Now the org may not exist to see that day.
Breaking laws and pushing to change them has been the modus operandi for some of tech’s biggest names.
It’d be interesting to see how this might have played out if the IA had the resources that Uber, Airbnb, Google, Facebook, etc have at their disposal.
It’s a sobering look at who actually has power to shape the legal landscape, and which direction it’s likely to be shaped in.
When they are prosecuted for breaking laws, they draw attention to orthogonal issues in court proceedings and hearings, delay the process, and involve a lot of other legal strategies. When they are sued by competitors for infringing on other's interests by breaking laws, they counter-sue, often frivolously.
They also lobby.
Breaking laws and then arguing to change them when caught doesn't work and almost no one does it. The cost in money and time to get to higher courts, win (uncertain probability) and create a precedent with a legal department is 10x-1000x the cost of lobbying congress to pass a bill. The big tech corporate lawsuits that go to appeals are so expensive that one could probably straight up bribe influential politicians for less, should that be the path one wished to take. We know stories where people went to higher courts and won to create a precedent because these stories are heroic and rare.
If IA had the resources of Uber it wouldn't have worked out any differently, because it doesn't for Uber when they break laws. For example, around structuring employment as b2b contracting.
These companies have the resources to shape the legal landscape, but not by breaking laws and getting prosecuted for it. That would show very poor decision-making.
Maybe they can become martyrs and win the court of public opinion when their actions are seen as moral. But an org like IA can do much more good than just become a martyr, so this is a very poor decision.
Every company I mentioned has broken laws, paid fines, and subsequently had laws changed in their favor.
I'm not saying it always works, but it works enough of the time that these companies accept it as a cost of doing business and have won. With that said, as pointed out in a different reply, copyright isn't one of the categories in which these companies are winning, so perhaps a questionable comparison by me in the original comment.
I agree this was a poor decision on IA's part, because they just don't have the horsepower to operate this way (not that I endorse this kind of behavior by businesses in the first place).
> These companies have the resources to shape the legal landscape, but not by breaking laws and getting prosecuted for it. That would show very poor decision-making.
Perhaps it's poor decision-making, but that's exactly what's been going on for years now. I suspect this is part of the reason numerous governments have been increasingly anti-tech in recent years.
Becoming a martyr in US law system (precedential) does not make much sense in my honest opinion. Look at Disney Mickey Mouse casus - nothing will change in here
Tragically, lopsided lobbying by Victor Hugo and cronies brought about the original 1886 Berne Convention. Back then outside of rarified publishing circles very few even knew what copyright was, and to the few who did it was of very little concern as copying anything was a mammoth technical undertaking—and when piracy did actually occur it was usually committed by one of their number—another publisher.
The net effect was there was no effective lobbying to counter the many excesses of Hugo's mob thus, unfortunately, they essentially all passed into international law. What we're witnessing now with the IA is another attempt to redress the imbalance only for it to fail yet again.
International law is nigh on impossible to change, combine that with the fact that publishers are guarding their windfall/golden nest egg like Fort Knox and thus we've ended up with this horribly unfair copyright mess.
Whilst I'd truly hate to see it perhaps if the Internet Archive were to succumb and go under it would be for the best. Maybe it will take a catastrophe of this magnitude to bust Publishing's stranglehold on the lobbying process.
We need a circuit-breaker to make politicians see reason and act in the best interests of the citizenry and perhaps the Internet Archive has to be the sacrificial lamb. That will only happen if the public is outraged enough to force politicians to act. That said, I'm pessimistic enough to believe the political climate is nowhere ripe enough for that to occur.
As mentioned elsewhere, the writing's on the wall for publishers, eventually balance will be restored.
This is ends justifying the means logic. (More accurately, it is showboating.)
Let’s concede for the sake of argument what they wanted to do was unarguably good. It’s still an astronomical long shot. And one with real costs, financial and institutional.
IA incurred those costs, and in the process not only destroyed the library but set a harmful precedent. They threw out the good in pursuit of perfection.
And if that's wrong, is me lending a book to a friend wrong?
Note that copyright lasting 50 years after the author's death was already in Berne Convention from 1886. Some (but not all) of these extensions in US were just adaptation of older weaker US copyright to international conventions.
You could have made a fairer point if the IA only disregarded the copyright of authors who are dead or something like 10 years past publication.
The the name of this nonsense, the Internet Archive damaged itself, perhaps mortally and damaged the concepts it stands for. Archives should be run by boards of archivists and librarians, not reckless activists.
Perhaps diligent but conservative government archives should be run by your gray ideal of "boards of archivists and librarians".
But the Internet Archive was founded to be an activist organization, in deed and legal strategy. When you start, fund, or staff an archive, you can run it as risk-averse as you'd like.
Maybe this was true in the 1950s and 60s, but a lot of things enshrined by judicial or executive fiat already have democratic support. ex: https://xkcd.com/1431/ Tearing them down is just an exercise in vetocracy.
I'm not entirely sure how this relates to copyright, though - an aspect of law whose main impact on the average person is YouTube or Facebook saying "no, you can't put 50 year old pop songs on your uploads". Here, the problem isn't a majority opposition that needs to be convinced, it's a majority that doesn't care, or doesn't know how to fight in favor of reform.
IA won't be gone because libraries have limitations on copyright damages. In fact, they already paid damages in a settlement with the publishers in the lawsuit. The only reason why there even is an appeal being talked about is because IA and the publishers both agreed to keep the case live through the appeals court.
This is as far away from "giving away infinite copies to anyone" as it could be.
If your whole defense hinges on "borrowing books has to have an inherent delay of X hours/days/weeks before they can be given out again", that's a very weak point in today's day and age. It's like saying "sending mails is bad because it is nearly instantaneous, and you don't have to wait for the postman to deliver your letter".
The lawsuit was filed when IA decided on it's own to increase the lending limit to 10000 copies of each title.
If your only determining factor for writing a book is to make and profit off of 'valuable intangibles', then I get the ick, just personally for me.
I'm not arguing for more starving artists, I'm arguing art and capitalism don't mix (see AI for further validation of that position).
You'll get way more ghost-written biographies from celebrities and hot takes from politicians.
A lot of people start writing books despite knowing those odds and outcomes.
Plus there are plenty of people who do it for the art even if they get paid, but the payment makes themselves better off and allows them to continue their work.
Like capitalism allows many authors to be able to create their intended art and find an audience, with both artistry and the desire to make money. And it's not like writing a book is easy, so the money is also extra motivation.
> Mass indirect piracy via AI being used to flood the Kindle market with slop is bad enough.
That just amplified the problem that already existed before LLMs - human-written slop already flooded the Kindle market, and has been flooding paper book market too - and yes, "ending book writing as a profession" is likely the only way for good literature to be made again and be read.
In the Information Age where everything else is increasingly automated, this eventually converges with all labor being uncompensated since all labor is eventually intellectual in nature if we are sufficiently advanced.
For example, there will always be a need and demand for technical documentation, engineering, legal writing, etc, all of which will and must exists without copyright. A lawyer's product is specific to his client, and bridge engineers' output are a correctly designed bridge.
You can extend it to musicians and artists. A musician get paid to play gigs at wedding, or artists being commissioned to create works for their patrons.
Copyright enables certain business models and change the quantity and quality of the work available, for ill or good but it isn't strictly necessary and may even be detrimental.
That is until the bottom drops out of even that.
Writing is tough to make a living in because it’s over saturated with content. This makes it worse by taking price to zero. Instead of too many artists chasing too few dollars you have too many artists chasing zero dollars.
This is how you get a future where novels are full of product placements because ads are the last way for artists to eat. I imagine this is what novels would be like in the Idiocracy world, which I realized a while back is not a film covertly about eugenics. It thinks it is but it’s really about the dark side of the Information Age.
For God’s sake look at what happened to the open web where everything was free and copyright was ignored. That would happen to literature.
That's a problem with ads. Advertising as it is today needs to be banned. It's a cancer that corrupts every medium of communications.
> Instead of too many artists chasing too few dollars you have too many artists chasing zero dollars.
Taking the advertising cancer out of consideration, the bottom will drop out of that, and you'll have much fewer writers, and much better writing.
The Information Age killed the business model based on selling copies of creative works. Copyright is a desperate attempt at saving those business models, by legally constraining digital data to behave like physical objects. This is just fighting against the nature of digital data as a medium. It ultimately cannot succeed, it's increasingly costly to maintain, and the side effects are only getting worse.
> For God’s sake look at what happened to the open web where everything was free and copyright was ignored. That would happen to literature.
Yes, it flourished and reached amazing quality levels and very good SNR - that is, until marketing people went on-line too, which is when it all went to shit.
Also: a musician who writes great original music should keep writing great original music, instead of forever charging rent on the music they already wrote.
I only question that copyright is necessary to make a living. A musician can teach people how to play music, for example.
When you get down to it, this is just not a good sphere for deontological ethics.
Copyright law may suck. The IA's actions were an extremely silly way to fight it, really didn't help anybody, and it was obvious from the get go that it wouldn't.
I'm a very big supporter of a lot of what IA does, but I feel if I donate, my money is just going to fund more and more legal defenses because Brewster Kahle is being stubborn, and I'm afraid it's going to lead to the entire Archive being shut down.
I've mentioned this before, but there are lots of cases where IA will let you download full video games for the switch that are still being actively sold [1]. The same applies to a lot of movies and TV shows, available via torrents no less.
Before someone gives me a lecture about data harboring laws and fair use, I know that it is technically on the copyright holder to issue takedown requests for infringing material, but even still, I think they'd be smart to be a bit proactive about this. If I know that the Internet Archive is an easy place to get pirated material, then I'm quite confident that their staff does as well. If there's even one employee email that implies that they know about pirated content but didn't bother taking it down, then I think that's grounds for a lawsuit (though I'm not a lawyer).
Much as I respect him for founding IA, I think that Kahle needs to be replaced as a leader.
[1] I'm not going to link it here because I'm not sure HN's policy on potentially legally dubious material, but it is not hard to find.
People who frequent libraries think CDL at retail prices is just; others that it is an end-run around publisher's rights.
But libraries pay so much for their limited-lending copies! Why isn't there any support for regional or global libraries? Publishers are like a syndicate but there's no opposing union so they run ramshod over the proletariat. Are libraries not good things? Beacons of culture and so forth? The IA clearly can't afford to fund CDL at library rates, but can't it get funding! Why won't the government step in and decree a federal library? Depending on geography, you're local library is probably already funded at the state and federal level.
The fact that IA disregards copyright law and seems to have a "wait to be sued" mentality means that the donations end up feeling more like lobbying money and less like funding an actual Archive. I'd be totally fine with a CDL being codified into law, and I'd even be fine with IA's version of it, but it doesn't change the fact that Brewster is treating IA like an ideological mission now more than an Archive.
If you want to donate your money to it, that's obviously fine, but I think that it's important to be honest about it.
I am not seeing that anywhere. I see a file called “My Nintendo Switch games collection” and it is a big jpeg photo of a bookshelf. Is this what you mean?
https://archive.org/details/super-mario-bros.-wonder-nspe-sh...
Note to dang and friends: Not condoning piracy or whatever, this is simply to prove a point that Internet Archive hosts and distributes warez with wanton abandon.
Have you downloaded and checked this file to make sure that it is a playable copy of Super Mario Wonder rather than some other file labeled as such? Have you reported it, and if so how long ago?
Most of it is actually supplied by ordinary users unrelated to Internet Archive with little to no oversight or curation. I have no idea how effective reporting is, but I would bet it's not meaningful given the prevailing prevalence of warez.
And yes, I've downloaded some of those warez and they have all worked.
I would advise not white knighting for Internet Archive and instead judge them for what they actually are.
I honestly think the software library is actually a far bigger liability risk than the book piracy scheme. Software developers and publishers are just as vindicative as book authors and publishers if you paint a big enough target on your stupid ass and there's a lot more dollars at play.
But wait, there's more!: https://archive.org/details/pcgames-jp-part2
And more!: https://archive.org/details/pcgames-jp-part3 and https://archive.org/details/pcgames-jp-part4
2TB of warez in just four links.
But that was way too easy, I just listed 2TB of mostly Japanese eroge. What about more mainstream stuff?
Presenting the PS1 release of Castlevania - Symphony of the Night, and in fact you can only play it on Internet Archive in the browser: https://archive.org/details/psx_sotn
And there's a lot more PS1 games where that came from: https://archive.org/details/psxgames
You can also enjoy a collection of Game Boy Advance games, nevermind that Nintendo is really draconian about ROMs right?: https://archive.org/details/gba_rpg_pack
But I've only linked to games so far, how about something proper adults would use? Here's Photoshop CS8 and it even comes with a keygen!: https://archive.org/details/photoshop-cs-8.
Actually, you know what? Just going through the latest uploads also proves my point: https://archive.org/search?query=mediatype:software&sort=-pu...
The moral of this digression is this: Internet Archive engages in wanton distribution of warez.
And once again a note to dang and friends: Not condoning piracy, these links are to prove a point.
Second link on the page. How is this warez distributor still online?
Calling the cops right now!
What I'm complaining about with IA specifically is that they're basically taking the MegaUpload approach of pretending that flagrant disregard for copyright law is totally fine, and then hiding behind vague data harboring laws and shouting "We're an archive so it's fine!!!!". Depending on how far you want to go, you can say that ThePirateBay or LimeTorrents is also an archive, but most people don't dispute that those sites are piracy.
If IA broke copyright law only in regards to something like AbandonWare, I wouldn't really be complaining, because that is something that should be archived and if it's truly abandonware then you're not even eating into potential profits, but that's not what's happening. Even the act of archiving copyrighted material that's still for sale is fine, but they should be operating within the bounds of the typical library archiving standards, which I don't think that they're doing.
As I said, if I'm aware of how easy it is to get pirated material on IA, then I'm quite confident that their staff is too.
This lawsuit came about in very large part because Internet Archive stopped linking to physical copies on hand during covid. That was the straw that broke the camel's back.
Note that preservation and redistribution are two very different things, there are very specific limitations to redistributing something you don't have explicit licensing or permissions for.
Further reading: https://www.law.cornell.edu/uscode/text/17/108
IA is most certainly holding some amount of content that is copyrighted and currently sold like they mentioned. It's just not easy to find.
You could say the same of YouTube. As long as they take down copywritten works when asked, they should be fine.
Extreme hyperbolic example, and to be clear I am not actually accusing anyone of anything, but imagine that there were evidence that Brewster was using IA donations to fund a meth addiction. I don't think anyone would blame me for stopping donations to that because my intent was for the money to go to archiving, not drugs.
I don't think Brewster does meth, and even if he does I don't think that he's spending IA money to do it, but I do think he's spending IA money in pursuit of a lot of lawsuits that are a result of flagrant disregard for copyright law, at which point it feels more like I'm funding a lobbyist group, not an archive.
To be clear, I really dislike US copyright law, and I'm not even really opposed to people breaking it, but my opinion of of the law is somewhat irrelevant. The fact is that flagrant disregard for it at the level of IA means that lawsuits are going to happen. I don't really want to spend money on that, though obviously it's fine if other people want to.
That's a weak argument that is the same as saying "BitTorrent is bad because you can download illegal stuff" or" file hosters should be banned because I found $illegal_thing on this one"
Yes, a free upload service will get abused. And yes, they are very quick to take these kinds of warez downloads offline when someone notifies them.
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.
The court's decision and conclusion is almost entirely about just regular CDL:
"This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."
(emphasis added)
There are some limiting principles... the lower decision only covered books that were "in print" in eBook form... but the rationale here is quite broad and would easily stretch beyond these specifics. (There's a small amount of analysis related to whether the digitization involved in CDL is "transformative" that rests on official publisher eBooks being available, but there's a strong overall impression that the decision would come out the same way for things not already available digitally.)
"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.”)."
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.
It's not about CDL because it's very specifically focused on Open Library's specific implementation, Open Library. Nobody is suing Hoopla or OverDrive. The courts are openly acknowledging that by explicitly spelling out why this ruling only applies to Open Library and not to other well-known CDLs.
And the Emergency Library was just the concrete pressure pipe that broke the camel's back. Publishers and author's unions had reportedly been trying to negotiate with IA about OL all along, and EL was just the move that prompted them to stop playing nice and take it to court. The rulings don't need to focus on EL, though, because a ruling against the aspects of OL that are under contention would automatically apply to EL as well.
The reality is that everyone thinks “I would have sold bitcoin at $70k if I bought it for $100” but anyone who would have sold would have sold at $1k. The only guys who actually ride it from $100 to $70k are the true believer types. And you’re not going to convince them that $70k is the top.
It’s the same way. He was always going to push the limit. That’s how we got IA.
Nah, I’m running an ArchiveTeam warrior. I’m team Brewster. Let’s go!
2) Digital books are DRM-protected so you cannot lend them or re-sell like you can with physical books. So making a digital copy of a physical book can be considered merely a method to workaround these restrictions.
3) Publishers want to use new technology (electronic books) to remove rights that consumers had with physical books, to be specific: a right to re-sell the book, a right to lend the book, a right to make archival copies etc.
It takes a court decision to know if the law was broken or not. You apparently forget that the Wayback Machine itself breaks copyright laws and went to court over this many times. Most cases were settled by removal of infringing content but it doesn't undo the fact that infringements did actually happen.
The IA exists in the first place because Brewster Kahle isn't afraid to test what's possible and go to court if necessary.
You can take it or leave it. Or you can build your own archive... oh wait, you can't because it breaks the copyright law which is unacceptable for you.
It takes only a working mind to know that, and the court's decision was obvious to most before it was rendered. This could have been foreseen (and was).
> You apparently forget that the Wayback Machine itself breaks copyright laws and went to court over this many times.
...and they had good reason to do so then as there were fair use arguments to be made in favor of what they'd done. That was not the case here, and they were warned repeatedly and chose to ignore that advice.
> The IA exists in the first place because Brewster Kahle isn't afraid to test what's possible and go to court if necessary.
There's a difference between being unafraid and being foolish. Guess which one this was.
> You can take it or leave it. Or you can build your own archive... oh wait, you can't because it breaks the copyright law which is unacceptable for you.
Ah yes, except for that whole fair use thing and explicit carve-outs for the actually legal work they do, which I've been commending throughout this entire thread. Please take your blackwhite thinking elsewhere. It's not productive.
I believe I remember this was tried at one point too. The significant difference here is that Google has seemingly unlimited money to throw towards lobbying and court cases
> The Second Circuit agreed with the district court’s ruling that Google’s digitization and subsequent use of the copyrighted works was fair use. In concluding that Google’s use was transformative, the circuit court found that “Google’s making of a digital copy to provide a search function . . . augments public knowledge by making available information about [p]laintiffs’ books without providing the public with a substantial substitute for matter protected by the [p]laintiffs’ copyright interests in the original works or derivatives of them.”
> ...
> Regarding the Google Books project’s potential to impact the market for or value of the copyrighted works, the circuit court held that—despite the search function’s potential to cause “some loss of sales”—the brevity of the snippet search results and the “cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view” make it unlikely that Google’s use could “provide a significant substitute for the purchase of the author’s book.”
I hope the likes of the Library of Congress are ready to shutdown their online services.
They broke the law. This isn't that hard to understand. If you don't like the law then either work to change it, create substitute works, or break the law in a way that doesn't involve dragging down the archive with you.
Should they have waited to start this archive, which is important enough for you to worry about its future existence, until the law on the right to make copies of websites was settled law? Bearing in mind that there are ongoing lawsuits and discussion on this topic right now, over fifty years since the emergence of the digital networks that rely on making copies to disseminate information.
Do you think that there was an open-and-shut case for an online archive in 1996?
When you watch anything on Netflix, the movie is copied a few dozens of times at least, and even you make a few copies during watching it, but I don’t think that it’s legal to make a copy, I’m quite sure that it’s stated in their ToS. So the whole internet infrastructure, and computer manufacturer, and every user should be sued with this logic.
Seriously, I don't understand the reluctance of some to admit this. It's almost like the rule of law just doesn't exist for you as long as it's a cause you care about. Even more puzzling is the idea that you should just wantonly break the law in a way that drags down good institutions with you as if your own personal battle with bad law is more important than anything else. It really isn't, and I wish some of you would accept that fact rather than trying to one-up each other on the internet. It's not helping anybody.
See: https://www.npr.org/2022/11/09/1135639385/libraries-publishe...
All that aside: if you have 1:1 physical books anyways, what is the reader accomplishing here? Just loan out the book.
I would also see a difference whether the activity is for profit (Google earning money with news scraped from Newspapers) and non-profit (IA and physical libraries).
Also, copying is ok in some cases; for example, the court found that Google scanning books for Google Books did it legally; 17 US Code 108 and 109 provide some exemptions from copyright.
Regarding "books made available for free": libraries allow to read books for free.
That's exactly what it's about. Publishers lost the battle of banning libraries, but have won and keep winning everything about digital books.
The end effect is that people have fewer liberties when it comes to digital things. Authors don't gain much. All the profit goes to the publishers.
I wonder why judges are anti-library. Although I can understand why they are generally anti-technology: the law school people have a lot of beefs, and beefs with the compsci people rank highly. And before you start telling me all the reasons why “beefs” aren’t a central part of the character of judges and therefore law in this country, you should maybe read more about guys like Clarence Thomas and Samuel Alito.
A library allows one person to read one book at a time. A digital library doing the same while using technology to make lending more efficient accomplishes the exact same goal.
We’re using precedent to override common sense and prevent digital libraries from effectively existing under the guise of protection.
Some are now!
Is that really suprising considering the general copyright climate? Do you link libraries would be allowed to exist if they were conceived of today?
I'd say probably not - but then "AI" seems to not be facing the same rules as regular people so perhaps if libraries could find a way to become "big" fast enough they could have a chance.
Stating it explicitly: while the NEL was dubious, CDL should have been 100% legal, and it's a massive disappointment to see it ruled against.
Further: it seems weird to blame judges for applying what is in fact very straightforward law. Seems like your problem is with Congress!
In terms of the fair use argument that could have been made, the Internet Archive's CDL obviously failed "nature of" and "amount and substantiality of", but I think it did not inherently fail "purpose and character" or "effect of the use", despite the decision saying it did.
In terms of concrete legal changes that could and should happen: "right of first sale" should be updated for digital, and include both "right to do format-shifting" (e.g. scanning physical to digital) and "right to lend copies digitally" (just like first-sale already explicitly allows physically).
The 4 fair-use test questions:
* How transformative the derived work is
* How much of the work is copied
* The expressive nature of the work
* The impact the derivation has on the market for the original
The Internet Archive:
* Copied works and made them directly available, deliberately avoiding transformation of any sort other than their accessibility.
* Copied them in their entirety.
* Exclusively copied books, the expressive work most legible to copyright law since the time of the framers.
* Made them available as a substitute for publisher-provided ebooks.
Any of these factors is enough to tank a fair use case. IA presented just about the worst possible fact pattern for all of them. This was an easy, straightforward decision to read. I didn't notice any point at which the 2nd Circuit had to stretch to reach the conclusion they did.
The four-factor test does not require that all factors pass. It's possible for a use to completely fail some of the factors but still qualify as fair use on the basis of the other factors.
No argument that CDL failed "amount and substantiality of"; they copied entire books. (This is, of course, exactly what they do with everything else, and that's not been a problem before.)
IA's "nature of" argument could have been reasonable for the subset of works that constituted nonfiction/educational material (there is a long history of the copying of those such work for educational use); that wouldn't have sufficed for other works, but it was a reasonable point for the subset of works it applied to.
For "purpose and character", the use was not hugely transformative, but it was turned into a different and more accessible form.
As for "effect of the use", I would argue that CDL was not in practice a substitute for most uses of a book or ebook. A book that you borrow, and have to return, can sometimes substitute for owning your own copy, but not always; in practice, the users of libraries and the users of bookstores overlap but I would venture that the majority of people who borrow a book from the library would not typically have bought the same book if the library didn't exist.
Suppose one built an automated apparatus that remotely opened a physical book and held individual pages up to a webcam for transmission to you on a video call. That's technically making a copy in the course of its operation, but you're still effectively reading the original physical book, with some assistance. (The Supreme Court ruling against Aereo would sadly probably be cited to shoot down such a model. That was a sad ruling as well; the opposite ruling would have enabled an incredible variety of uses and possibilities.) The 1:1 CDL mechanism seems effectively equivalent to that.
Is this true? A substitute is like for like. The IA lending provided them as a lend on the proviso that a physically purchased book is available and unused.
Its like saying that a Bookstore is competing with a Library. However the Library can only satisfy a small amount of Bookstore demand, and does so as a public good. They arent the same and the lending is downstream of a sale.
I guess you could make the argument that ebooks also have crippling anti consumer licenses so both are similar. But that just leads back to "The law should be different"
No, a LOT of people in these very threads are arguing that the CDL IS 100% legal and that the ruling is ... well, many things.
Yes, actually, I do. But the public benefits of libraries outweigh the harm it does to authors. But, the fact that I can buy a book once, and pass it between 50 friends to read feels unfair to the author who effectively makes no money off of the work.
I'm genuinely not sure what you're saying here.
"[IA] have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society" - to what extent has this had any effect on those services on WayBack machine? Does it not still collect and load a webpage today just as it did in 2015?
The downside loss was low here, the upside was worth it, even if the approach was unlikely to every work. It could lead to change in 100 years. That's important.
I'm not sure one should be so certain on this. I don't intend to suggestion it is an intentional action, but I do find that libraries are inherently at odds with how most of copyright otherwise works. There is a tension in this relationship and one that is likely pushing towards libraries becoming illegal for new forms of media. A common sentiment I've seen, expressed for different reasons by different people, is that if libraries didn't already exist, they would be illegal to create.
This is part of the larger role copyright plays in society, from being used as a legal hammer to handle AI issues (as in, when all you have is a hammer, everything looks like a nail) to newer digital media being sold in a way where one can't easily share what they own (if you even can call it owning at this point).
Basically, there is an established practice for lending printed books: the library buys a book and lends it to patrons without permission from the copyright owner.
However, publishers believe that digital books are different from physical books and established practice doesn't apply to them; they believe that lending should be made at publishers' terms, to be specific:
- only "academic libraries" (chosen by publishers) may lend digital books
- they may lend them only to the members, for example, only students of the university, not to random people
- library must buy a special "library license", which might have arbitrary price and arbitrary terms
- the license has a limited term: sometimes it is 1-2 years, sometimes it is 26 lendings, after which the library must purchase a new license
- the library must use publishers-approved DRM which might not work on some devices
To enforce these rules publishers use DRM that prevents anyone from buying a digital book and lending it to other person (which was possible with digital books). So, in publishers view new technology means new rules and new opportunities.
The IA found a workaround: they bought physical books, scanned them and lent those digital copies instead of a physical book, provided that only one user can read the same book at the same time. They acted like a library but using remote access to a digital copy. The lender might read the book on IA's website enforcing the terms of use or download a DRM-protected PDF.
The lawsuit is about whether IA actions are legal or not (i.e. if digital books may be lent like physical books). Given that in future there will be less and less physical books, if publishers win, it will mean that libraries will not be able to lend contemporary books at the same terms and costs they lent physical books.
There are several complications: dubious partnerships by IA with libraries to increase the number of lent simultaneously copies; dubious decision to remove limits during COVID pandemic. However, there are facts that play in IA favour: there are precedents when making digital copies was considered legal (by Google Books), and there are a 17 US Code 108 [2] and 109 [3], which allows some exemptions from copyright for libraries and archives.
[1] https://www.documentcloud.org/documents/23723923-hachette-v-...
If IA would like five dozen copies to be morally equivalent to one copy as long as they ask each person who received one to swear they deleted it before IA makes another, they can call their congressman and ask them to propose a copyright law amendment. They did not do this, and instead just knowingly violated the law repeatedly. Wailing about how libraries won't exist in the future is silly, because it just takes reforming the law to fix this, but IA seemed to be under the impression that as long as the rules would one day be amended, they could act as though they're already amended that way today.
Replace Internet with a video cable, and the device with a CRT TV. No copy is produced in this case.
Would be curious to try this because the "ebooks don't wear" argument won't apply.
Who's this asshole who hates books and authors and the law?
Evidently, reasonable people differ in opinion on this topic. It's fine that you disagree with what Kahle has done, so do I, but I would have found your comment more persuasive and interesting if you didn't reduce your opposition to a caricature.
the ever expanding rights that nobody voted for and that are passed by and for lobbies?
Not only do they ignore robots.txt, they ignored all emails sent to info@archive.org from the actual domain in question which I owned, with a link to a URL on the domain asking them to remove it.
I can understand wanting to preserve some large website's article that is of public interest but this is just malicious / dangerous. It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content.
It took you two years and a lawyer to literally fill out a form?
If anything, the IA removes too much content and should only do the minimum required by law (and fight it even there where possible).
>one man's seemingly fanatical conviction against the law
Reviewing the large number of amicus briefs on the Archive's side, from the get-go through appeals, refutes the idea this was a solitary crusade: https://blog.archive.org/2023/12/29/friend-of-the-court-brie...
Those supporting IA's position range from the American Library Association (the world's oldest & largest library advocacy group), to individual libraries of all kinds, to expert IP law academics, to public-interest advocates like the Center for Democracy & Technology or Public Knowledge, to fellow open-culture organizations like Wikipedia, Creative Commons, & Project Gutenberg. Also: lots of book authors, including those with commercial success & titles inside the IA's lending program.
The IA was in the leading position, sure – but taking the arrows for a very large group of like-minded organizations sharing a stance against copyright maximalism. Personalizing it as one man's radical crusade is odd.
>asked to stop… tried to open a dialogue
Saying no to the copyright maximalists, even through their claims of absolute control & threatened or actual lawsuits, has been essential in establishing the actual settled law around copyright.
What sort of 'dialogue' can be had when the sides have incompatible views of the law: one believing in a permissionless right to do an exact something (supported by reasoning & precedent) and another asserting an absolute right to prohibit that exact same thing (supported by other reasoning & precedent)? Each side needs to enact their beliefs then resolve it in the courts.
HathiTrust - a major consortium of university libraries – was the named defendent in an earlier lawsuit by some of the same copyrightholder interests with regard to Google Books scanning. (It's also an ally of the Internet Archive in this fight.) Should HathiTrust have rolled over when "asked to stop" scanning by rightsholders? Absolutely not: they won in court & on appeal.
If Sony hadn't appealed the Betamax decision to the Supreme Court, VCRs & everything since that let people record their own copies of TV programs could've been "illegal". A mere 'dialogue' with TV broadcasters or moviemaker trade associations couldn't have done anything: the issues had to be ruled on by legal authorities.
>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.
I agree that the overheated rhetoric from both the plaintiffs (about giant but never-proven sdamages) and defendants (about how central these principles are to IA) may have created that impression in some coverage – but the idea this was ever existential for IA, in legal costs or potential damages, is pure paranoid fantasy.
As a non-profit, the IA files detailed form 990s with the IRS showing income & expenses. I challenge you to find any hint of legal costs changing other operations in the years since the lawsuit was filed (2020) and appeals launched.
I suspect, but have no inside info, that much of the costs were borne by other advocacy & legal organizations/donors that wanted to pursue a ruling on these particular essential issues. That is: this battle was fought with resources targeted for this program and these legal principles, not resources diverted from other programs.
As part of private settlement with the plaintiffs in 2023 – not any court monetary judgment against it – the IA agreed to make some undisclosed payment but ALSO had permission from the plaintiffs for IA to continue to pursue appeals (like the one just ruled-upon) on the issues important to IA, at no risk of further damages.
That's hardly the "scorched earth" plaintiff behavior implied by some hyped coverage imagining an IA bankruptcy, or other threats to its ability "to survive".
This was always a dispute on some copyright principles; it will be a loss to the public if IA's vision of format-shifted digital lending is ultimately ruled illegal, but no impact to IA's other long-established programs.
Finally: this may not be the final chapter & ruling on these issues. Sony had to appeal all the way to the Supreme Court before getting the Betamax ruling in 1984. Google had to appeal all the way to the Supreme Court before getting a ruling that API reimplementation could be fair use in 2021. I don't know if IA will judge it as worthwhile to appeal. But they might! And before those other historic final appeals, the preceding judgements seemed pretty definitive and bleak for the ultimate victors.
Maybe it shouldn’t. There is value in asking if there is a better home for those projects.
Oh no, won't someone think of the rights of the poor poor publishers :(((