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tptacek | on: The Internet Archive has lost its appeal in Hachette vs. Internet Archive
The further you take a federal case the more precedent you create. The infinitesimal odds IA seemed to have at winning this case have to be weighed against the precedent they have created that may bind on future controlled digital lending cases with better facts. What IA did here wasn't costless.
bubblethink | parent | next
I don't think losing controlled digital lending is such a big loss. It was a clever workaround on shaky ground that only survived for the same reason that you stated - no one wants to create precedent. On principle, this was a shot worth taking. I can see a parallel with scihub, where they have actually brought about a cultural change in scientific publishing. Libraries aren't agreeing to closed publishing, ACM is going open access, etc.
matwood | parent | next
> The further you take a federal case the more precedent you create.

Not really. This put a huge chilling effect on real attempts at CDL, which IA was not.

tptacek | root | parent | next
I think we agree.
matwood | root | parent
Yes we do. I misread your comment that this case was somehow a good thing.
polynomial | root | parent
That's what matwood is saying.
pests | root | parent
You are replying to matwood.
tptacek | root | parent
Well then he definitely agrees.
wazdra | root | parent
I think we can all agree to disagree
account42 | parent | next
If the precedent is that caving into DRM demands doesn't save you from greedy publishers then it's a good precedent to set. This interested in preservation and access to information are better off putting their efforts into skirting unjust and societally harmful laws than trying to work within them.
creer | parent | next
> future controlled digital lending cases with better facts.

Was anyone else doing anything? Or standing ready to do anything?

tptacek | root | parent
I don't know, but anybody who wasn't doing anything and wasn't standing to do anything was more valuable to digital rights than the people who appealed this case to the 2nd Circuit, in that none of them actually damaged digital rights.
creer | root | parent | next
I don't know. From the point of view of the appeal and mechanical precedent specifically, maybe, maybe not. At first read, the decision rationale seems somewhat measured and interesting - it doesn't just say "Declined". And meanwhile, IA kept the issue present and discussed and with some attempt at doing something different - even in the appeal.
immibis | root | parent
It was ruled illegal when they did it with DVDs
stavros | root | parent | next
Sure, but that's judging in hindsight. Then again, everyone here was saying how dumb a move this was before the trial even started, so...

The payoff for winning would have been massive, but if the IA shuts down because of this, so will the cost for losing.

tptacek | root | parent
Yes, it is. But back to the point I made originally: this case had an infinitesimal chance of success. You can come up with a worse fact pattern for fair use, but you have to work at it. Whole copies of books, the form of copyrighted work most legible to the law, that are currently for sale in ebook form by their publishers? That was simply never going to be determined to be "fair use".

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."

ricardobeat | root | parent
> Whole copies of books, the form of copyrighted work most legible to the law, that are currently for sale in ebook form by their publishers

For some reason this was acceptable in physical form for hundreds of years. CDL is just making it more convenient for our modern reality.

trustno2 | root | parent | next
No it's not.

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)

account42 | root | parent | next
The problem is that the act of sharing something digitally is implicitly assumed to be making a copy wheres lending someone a book you have already read and internalized is not. Copyright laws should have been adjusted to preserve the same freedoms for digital use as you had before rather than being even more of a bad deal for society.
tptacek | root | parent
It's not "assumed" to be making a copy. It clearly is making a copy. Nerds like us want there to be a special kind of copy that doesn't "count" under copyright law, to facilitate things like CDL. But there isn't, and the courts are the wrong place to look for it. Go get a new Copyright Act passed.
BlueTemplar | root | parent
Since this is hn, I'm going to be pedantic and somewhat offtopic. :)

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.

| root | parent
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ricardobeat | root | parent | next
I’m sure you’re aware that in our digital world, there is no difference between “transmitting the book” and “copying the book”. Yes, you can argue the law needs to change first but that’s not how changes happen. Laws are bent by society, not the other way around.
tptacek | root | parent
I'm not sure I follow what you've written here but it seems like you might be the 10th person on the thread to claim that "transmitting" a book is different under the law from "copying" it, which: no, the court is not confused about which copies are taking place and whether the resulting fixture of copyrighted work in some media comes with rights to distribute that content.
Nullabillity | root | parent
Except that's the whole point of the CDL compromise, that only one person can borrow the book at a time.
trustno2 | root | parent | next
The compromise is obviously unilaterally decided by Archive, as demonstrated by the fact they randomly decided to not even honor that "compromise".
tptacek | root | parent
There is no CDL compromise clause in the Copyright Act.
mkesper | root | parent
With physical copies only one reader can read it at any time. With digital copies in principle everyone can read it even in 100 years from now going back to one original copy.
mindslight | root | parent
Aereo had much more favorable facts and yet was still decided in favor of copyright maximalism, so it's probably a moot point. Ultimately, the digital rights we have are the ones we take.