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Related URLs (from threads we merged hither) in case of interest:

https://www.theverge.com/2024/9/4/24235958/internet-archive-...

https://www.wired.com/story/internet-archive-loses-hachette-...

https://finance.yahoo.com/news/major-book-publishers-defeat-...

https://news.bloomberglaw.com/ip-law/internet-archive-digita...

This has been playing out for many years. And it's all because Brewster Kahle decided that an overly broad interpretation of the Internet Archive's mission trumped the rights of authors and publishers, and the laws of the United States.

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

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

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

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

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

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

I disagree with this assessment on many levels, but I think the most important challenge I can make is to the idea that Brewster Kahle is a rogue actor, who in some sense mis-interpreted the mission and strategy of the Internet Archive.

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".

All of this sounds nice, but also ignores the details of the lost court case. When I learned more about the actual case details it really seemed like a strange hill to die on for the IA, and it was nearly inevitable they would lose. I think there was a very sensible middle ground the IA could have chosen to avoid it all while still sticking to their core mission.

I will claim that IA is an overly-sensible org because they fought this in court. That about show a healthy respect to the law, middlemen and authors to argue in the presence of a judge. For Publishers and middlemen, this is a hollow victory. Murky water.

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 a legal activist, government, or large company, the decision about whether to go to court is different than for individuals.

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?

I agree the unlimited copies part was excessive. I could see possibly pushing the limit a bit during COVID, but only as a temporary measure.

Copying some parts of the book for educational purposes is allowed within fair use. Copying entire works isn't considered fair use.

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.

Being the entirety of not is not always relevant to fair use. Of course a judge may take amount into account, especially when arguing damages, but fair use is a guideline to a judge not a set of well-defined rules (though collection societies love to print their own policies as being the rules...)

> fair use is a guideline to a judge not a set of well-defined rules

There are four factors of fair use. Factor three is the amount or substantiality is being copied. You're somewhat right there isn't an entirely objective standard to measure things, but there isn't exactly an objective measure to creativity.

You can't put something on a scale and get units of creativity a work has. You can't get a graduated stick and measure the creativity of a work.

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If we're going to stretch the meaning of "stealing" to include situations where no one is being deprived of their property we might just as easily say that text book publishers have been "stealing" from the pockets of students for decades with the insane prices they charge.

The creators put in labour with the intention that their efforts would be recouped in the form of remuneration. You stole their labour simply because you could in do it in a way that is not easily visible/detectable. Theft of labour is still theft to me, be it Amazon or parasites on creative works that are the results of the cumulations of years of an individuals learning and mental effort to create something. There is a reason copyright was created. We wanted a mechanism where these people could be rewarded for their labour because having professional fiction writers/historians/philosophers benefits society.

When a creator's labor is recuperated yet they still seek payment via copyright due to the unreasonable length of time that is assigned, does the charging for further copies beyond manufacturing costs then count as theft?

Whatever you may think of what OP's buddies were doing, there is no way to apply any reasonable meaning of the word "stealing" to it.

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.

> emotionally-loaded word in order to deceive people into supporting your position

That's an entirely colourful way of phrasing it, considering I merely just said what I thought and have experienced, nor do I think I have the capacity to deceive at such a level. That is your opinion, and I accept it.

If we are going to use ridiculous definitions of stealing, I will have to point out that private, non-personal property - anything that you don't have direct personal possession and control over - is theft.

It's copyright infringement. It's not theft. Theft deprives an owner of use of an item.

TIL theft of labour is not real theft.

If it were, managers would be going to prison for wage theft and misclassifying workers.

Instead, it's treated as a civil issue, when it's pursued at all.

Define stealing.

When Bob puts in labour in order to make financial gain, and Tom takes the fruit of Bob's labour without paying what Bob has set the work of his labour as being worth.

Adding a parameter X to your definition expands it as follows:

> When Bob invests labor into X to generate financial gain, and Tom utilizes the results of Bob's labor on X without compensating Bob at his requested rate.

However, this definition becomes problematic for many values of X. Consider cases such as:

* Fashion styles * Business models or store layouts * Factory or house designs * Cake decorating techniques * Cooking methods * Agricultural practices

In these examples and many others, the concept of "owning" the fruits of one's labor becomes murky. *Intellectual property laws were originally conceived to benefit society as a whole, not just individuals.* As our understanding of innovation and creativity evolves, we may find that some communities flourish better with more flexible approaches to intellectual property.

But Bob was paid. That's the point. Also most of 'intellectual' property is owned by corporations, not the creators.

If Bob prints a book and you take it without paying for it, that's stealing. If Bob prints a book and you buy it from Bob and you make copies of it and give it to your friends, that isn't stealing. And it shouldn't be classified as stealing, morally or legally.

The only reason it is considered illegal is because greedy corporate interests decided to make it so. Historically, people bought books and copied it and spread it around. That was the norm until fairly recently.

'Intellectual property' is theft. It is a fiction invented by the parasite class. Just think about it.

Bob's pay rate was agreed upon based on getting X number of sales, not one book.

You are promoting the parasiting off Bobs labor. You can try to justify it, but Bob worked expecting to get paid from those transactions, and they were taken away away because it was technologically easy to do. Bob/society expected payment to occur.

This is just moral pedantry. The law doesn't really mean anything if its not enforceable. Students pirate books all the time and face no legal consequences. Meanwhile, the good faith actors are punished with completely unreasonable book costs. At a certain point, you should point your finger towards an unfair system that leads to bad incentives, not students simply trying to learn.

The free flow of information is slowly being eroded by rights holders. If people don't find a way to stop being influenced by narratives that really only service this establishment, we will find ourselves, renting and not owning works of art. When rights to own and enjoy a creation on your terms gets taken away from you, the control over your life does as well.

As has been mentioned elsewhere, losing an appeal at this level sets precedent that does damage to the free flow of information. The best thing that the IA could have done to advance freedom would have been to bail as soon as it was apparent they had no chance to win (which was before the lawsuit was even filed).

That's not just a narrative that serves the establishment, it's a fact of life. We don't get anywhere towards change by ignoring the reality of the present situation—we have to work within reality in order to change reality.

Maybe. But this situation points to much larger problem, in my view. That people are starting to become accustom to common people rights erosion. Rights holders should not being wielding this kind of power against the public, at the end of the day they are still accountable to the public good, end of story.

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What is this "very sensible middle ground" you think existed as an early-exit option that also served the IA's goals?

Agreed, if anything the mistake of CDL was legitimizing DRM and thereby the current IP rules in the first place.

No. He had no case to begin with. There was zero chance of him becoming some kind of hero from this action.

What might have made him a hero is having been smarter about how he went about this book/library project, and he's blown it. And he has now put the entire IA at risk by doing this stupid book/library thing under the same company.

The fact that he lost, and the plaintiffs affirmatively won on Summary Judgement [0] is huge. It shows Kahle/IA NEVER HAD A CASE from the outset.

Summary Judgement means, based on the undisputed material facts and the law, there is no purpose to a trial, and a proper judgement on the case can be made immediately. "Summary judgment is a pretrial motion that promptly resolves legal actions where the parties have no genuine issues with any material fact. The court produces a judgment for one party against the opposing party without needing a full trial." IA may appeal to SCOTUS, but I see no scenario SCOTUS even looks at the case, nevermind takes it and rules in IA's favor.

For years it's been an obviously unnecessary risk for IA. While it may have been a noble cause, it was absolutely a risk, and should have been done under a separate corporate/legal entity.

Instead, he recklessly barged ahead with no regard for likely consequences. The result is that the entire Internet Archive and Wayback Machine is now at real risk of being lost when the court awards damages.

I've seen far too many smart people doing stupid things, but this is one of the most glaring examples. I hope IA survives.

Why aren't others doing it? Because IA existed and no one wants to do redundant things. Today, they just stopped being redundant, so I hope others will rapidly invest the resources to make different Internet Archives...

[1] https://www.findlaw.com/litigation/filing-a-lawsuit/what-is-...

> 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?

Lots of libraries do free digital lending of ebooks in a legal way and have done so for a long time

Those libraries are subject to publisher's whims and prices in ways that they never were for paper books.

I have never understood why a digital good isn't subject to the same protections as the physical one. Honestly, this sort of behavior only encourages piracy. Oh, I don't have the same rights if I buy your ebook? Ok then, I guess I won't.

Don't they have the same protections?

I think it's perfectly fine to download an ebook and mail somebody your harddrive for them to read it no?

I'm not sure it's legal for you to photocopy a physical book and mail them those photocopies even if you burn your book.

You typically can't just mail a hard drive: you have to share access to the account that was used to purchase the ebook.

That would likely violate the terms of service for whatever company the account was created with. Provisions against password/account sharing are pretty common.

Well, I'm not claiming it's practical; I'm just saying its the same.

Rather than mailing your friend a hard drive, you could mail them a door key and they can come over and use your computer to read the ebook or your couch to read the book.

>I have never understood why a digital good isn't subject to the same protections as the physical one

Because digital and physical goods aren't the same thing. Equal rights principles presuppose that two things are equivalent. Unequal things can be treated unequally.

Each copy of a physical book is mutually exclusive, a library can't buy one copy and then lend it to a thousand people at the same time. Placing limits on how digital goods are distributed is actually how you restore some equality in regards to the property rights of the author.

The publishers charge the libraries per lending event. This is nothing like lending physical books and the publishers fully control it.

> Lots of libraries do free digital lending of ebooks

They don't own these books, only pay-as-you-go licenses to do exactly what they do.

And now there will be a legal precedent to shut down all CDLs of these "lots of libraries".

As I understand it, libraries with CDL have purchased licenses for the works they allow to be checked out in this way and do not scan books and lend out their digital scans.

And those licenses expire, and are more expensive than physical books.

And of course, not every print book is available digitally, and not every ebook is available from the small number of vendors that license ebooks for borrowing to libraries.

The third party ebook vendors libraries make people use for ebooks loans can also require accounts and collect data on library patrons and what they read to use for marketing, push ads, and/or to sell. None of that bullshit happens with physical copies are loaned out either.

>And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"

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"

If they have the physical book how is this any different, it had to be purchased at some point or donated for them to acquire it. If anything I would argue they are doing more work for the publishers by creating an ebook from scans. I also think a sane interpretation of fair use would be that the scan is a new / derivative work that is transformative, but we'll never get there with the current legal climate. Philosophically I've always been there.

And yes, I would outright abolish copyrights if I could, so please don't try to what-if me, I won't care about the implications in the way you would want me to.

If anything, imo to be able to hold on to a copyright you should have a burden of proof that society benefits as a whole long-term from your work remaining copyrighted, and virtually nothing meets that burden of proof.

>If they have the physical book how is this any different, it had to be purchased at some point or donated for them to acquire it. If anything I would argue they are doing more work for the publishers by creating an ebook from scans

The publishers and the third party platforms libraries force people to use for digital lending can force ebook readers to create accounts and hand over their personal data and reading history and those platforms use that to push ads or sell that data to publishers and other third parties.

What the internet archive was doing didn't allow publishers to collect/sell that personal data, didn't give them the ability to limit/censor/remove titles at any time, and didn't allow them to charge excessive fees for the "privilege" of loaning the book electronically. From the stance of the publisher they risked losing a lot of money and power. From the stance of everyone else what the internet archive was doing was an improvement.

> I also think a sane interpretation of fair use would be that the scan is a new / derivative work that is transformative

The creative part being protected by copyright are the words, not the physical pages. You're not transforming the words; you're transforming the paper to bitmaps. All the words and concepts within them are the same. It's not transformative in the same way ripping a CD to an MP3 isn't transformative.

If I change the font for an ebook, have I meaningfully transformed it?

> if I change the font for an ebook, have I meaningfully transformed it?

Change one pixel and imo yes

How is a single pixel of difference in potentially hundreds of pages of text a meaningful change? It isn't changing the characters or story itself in the slightest.

Please, defend that point as an actual argument that it's then somehow fair use to change one pixel of an ebook and have it be a meaningfully different work.

And those paying attention will see that the publisher-approved version of digital lending gives publishers a legal/technical off switch on the existence of libraries, to the extent libraries go digital. Is anyone here okay with this? Kahle/IA certainly aren't!

Exactly. The broader issue here is about control -- specifically, who has the right to alter the financial arrangement, at what time.

I think everyone can agree we've seen from academic publishing what a shitshow {public need} + {extractive private IP ownership} can be.

Requesting libraries to enter into agreements with publishers in order to loan copies of their books isn't in the public interest.

Because invariably these publishers will realize they can bump rates year over year. And then private equity will realize they can buy these rights holders for a secure income stream. And then the year over year price growth will accelerate.

And contrast this with physical first sale doctrine. (1) The library bought or was donated a copy of the book. (2) As long as they could store it, no publisher could tell them a damn thing about how they could and couldn't loan it.

This comment plus the parent changed my opinion on the case. They still may have gone too far be loaning out copies, but the fight to return to physical book loaning practices is worth it. Ownership and long-term availability matter.

Yea, I don't like the whole loaning out idea either. Loaning implies ownership. Corporate propaganda has done a good job of convincing people otherwise. I came across an article that was really good at explaining the issue of ownership around digital goods that people who want to have a balanced view of the situation should read. https://linustechtips.com/topic/953835-you-own-the-software-...

The biggest piece lost in the conversation around digital/IP rights is awareness of how it worked pre-digital.

First sale doctrine (in the US) said the buyer owned the physical copy and could resell or do what they wanted with that single copy.^

Obviously, that isn't portable to a zero-copy-cost digital realm.

However, the "buyers never actually own anything digital" modern reality is vastly different than the historical norm, in favor of publishers and platforms.

What was missed was the conversation around what baseline we should establish around digital ownership.

We've nibbled around the edges (you have a right to decrypt something you've purchased, in some cases), but we never clarified it sufficiently.

And without clarity, buyers only get whatever rights publishers/platforms decide to grant them.

IMHO, we'd be better served by establishing a clear floor of digital ownership rights, that no publisher or platform had the legal right to remove or obstruct.

That's how we did it previously, and it worked well...

^ There were some exclusions around mass/public broadcasting, but those were pretty limited.

> Obviously, that isn't portable to a zero-copy-cost digital realm.

I'm not sure how you figure that. Its still a sale. You might want to read though how much case law there is all over the world that conflicts with that conclusion. Read that post, it has plenty of examples how it doesn't matter if its digital.

Here is one in particular:

In a 2016 Australian case regarding Valve's refund policy for Steam, Australia's High Court carefully examined whether computer games sold through Steam are goods (and therefore property and consumer rights apply to them) or services (and therefore no property or consumer rights or apply to them), and concluded that they are fully goods, and that Valve doesn't merely sell a license to use the software, but in-fact sells the software itself, and that whoever buys a game from Steam becomes owner of the software that they purchased. Australia's High Court concluded: "Each of Valve’s challenges to the applicability of the Australian Consumer Law fails. The conflict of laws provisions in the Australian Consumer Law did not essentially carve out an exception for conduct by foreign corporations like Valve governed by a different contractual proper law. Valve supplied goods (which are defined as including computer software)."

It's incorrect to look at the concept of ownership from solely legal or solely technical perspectives, because reality is a joint application of both simultaneously.

What point is legal prohibition if technical implementation is trivial?

And what of legal requirements if technical implementation is impossible?

The unwritten assumption girding physical ownership was "... and it's non-trivial and expensive to physically copy a book."

With digital copying, that's no longer the case. Consequently, simply to maintain the same system the law would still need to change.

Unfortunately, in the back and forth between extreme positions, publishers used this difference to argue that ownership was no longer financially possible and usher us into the realm of rent-only.

PS: Valve maintains sufficient control of Steam-distributed apps that's a defensible position. A better case would have been GoG.

And you don't think that publishers having to be involved with digital lending is a problem? Libraries don't have to seek permission to lend paper books and they are not responsible for ensuring that those books aren't copied. Same should apply to the digital world.

> Why didn't other people, other national archives, other commercial concerns or non-profits join in this work?

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.

Neither you or ilamont do a good job at explaining why Kahle is wrong or right in this particular case.

Some more history from that era:

https://brendan-47137.medium.com/debunking-the-brewster-kahl...

> In his many interviews with U.S. media, he portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians. 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.

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.

I agree with you about copyright, but the fact is that the IA never had a chance and we knew it years ago.

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.

[0] https://news.ycombinator.com/item?id=22731472

[1] https://news.ycombinator.com/item?id=23485182

outside of the content of of the comment, top comment doesn't necessarily mean the most held opinion.

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.

I'd add too that often on such sites the range of submitted subjects are broad enough that those voting don't necessarily have domain familiarity or expertise, so when a comment reads like it has a solid argument readers may upvote it to test the robustness of its premise by way of seeing if others make more compelling counter-arguments or strengthen/agree with it.

Ie: the voters themselves may not hold any personal opinion on the matter.

Lawyer here. IA’s position was indefensible and reeked of a personal agenda. Given the value of IA, it was deeply irresponsible.

That comment was about the Emergency Library though, not lending in general.

Ditto. Worth also noting is that IA lost the case by summary judgement. This usually means that the legal matter was so clear that the judge didn't even see a reason to start a trial. This judgement has now been confirmed on appeal. Just about any lawyer could have probably told them this was the inevitable outcome had they listened.

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.

I think one has to be honest and realize that the desire of digital preservation stands in conflict with present day laws.

Yes, but this case was not about digital presevation but lending out scanned traditional books without proper controls, presented as some sort of a social welfare project. Choose your battles.

> lending out scanned traditional books without proper controls, presented as some sort of a social welfare project. Choose your battles

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.

What's the point of having digital preservation if noone can read the archives ? Digital access make sense, it's the logical conclusion to what IA does

But that's not what this case was about. Throughout the trial they have been allowed to provide continued digital access to the scanned books, granted they operate like a library (each borrowed book is backed by a physical copy.) The case was launched when during the Covid-19 pandemic they removed the limitations under the veil of "National Emergency Library":

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.

And their poor implementation of CDL (based on the findings they were often missing the controlled part), has now set a precedence that will make a real CDL case that much harder. Grandstanding appears to have been more important than enacting change.

Good. Hopefully good hearted folks like the ones running IA will now see the error in engaging in DRM and drop the controlled part entirely. Yes that means they will have to take steps to insulate themselves from unjust laws.

> 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.

casual e-book piracy doesn't include DRM.

> This was the inevitable outcome of "National Emergency Library" and they knew or should have known it.

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.

Under US copyright law controlled digital lending was clearly illegal. This case did not establish any new precedent, it's a plain reading of the law and the decision reflects that. You and I can both not like it, we can wish the law was different, but no court ruling was ever going to go any other way, and the reckless move of opening uncontrolled digital lending doesn't change that.

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.

I agree it was going to be a hard case, but I don't think CDL properly implemented is automatically illegal. The issue here is IA had a lack of control and couldn't assert the print copy came down in their CDL implementation. It's unfortunate this was the case used to test CDL since it was a loser from the start.

The point is that providing access to archives of web pages that were once public--especially if robots.txt is even retroactively honored--and CDL, while perhaps not adhering to the letter of copyright law, are sufficiently close to the spirit that most reasonable people see those actions as legit. (There's probably at least a case that you're just providing an equivalent proxy for physical access. IANAL) Especially by an entity which is reasonably viewed as an archive/library.

It is clearly illegal. It doesn’t matter whether you have a physical copy backing it. It doesn’t matter if you have control over your digital lending. Making a copy (digitization or ctrl + paste) and distributing it is illegal by default without permission of the copyright holder. This is the core of copyright law.

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.

It's not clearly illegal. If IA had taken the 1 physical copy and loaned out 1 digital copy (not copies) at a time like it was the physical copy, there is a an argument for fair use (traditional format shift requires no commercial way to purchase the item, so that's the big change). The problem is that IA didn't do the controlled part. Lawyers smarter than me seem to think there is a case here, and are working on a real test case though it may be years away.

There is an “argument” because that does seem like common sense. It is nevertheless clearly illegal.

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."

> So, instead of expanding everyone's access to the digital archives, they have managed to indefinitely limit it by creating a restricting legal precedent.

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.

Both copyright protection and fair use exceptions have valid but contradictory “logical conclusions” that require practical considerations, wisdom and negotiated compromise to balance.

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.

Not really. We ha an abundance of creation long before copyright.

I have never heard anyone claim there wasn’t.

In a controlled manner in line with existing laws, yes. The law is still the law, even though the law may not be what you or I would like it to be.

Funnily enough, the courts are the best place to change/challenge that law without a literal act of Congress. (Apologies for any snark, but this is somewhat fueled by another, similar debate had previously) In America there should be no such debate regarding defying law being bandied about as infallible or intransigent.

Courts are a good place to challenge the law only if there is a higher law that contradicts them. If we’re talking Federal law, then the step up from there is the constitutionality of the law, which is not an easy case to make. Usually what gets challenged is the Executive’s interpretation of the law more so than the law itself, which is still not an easy case to make, but easier than challenging a law passed by Congress. Typically these are big cases that make the news, but actual constitutional challenges are statistically rare and successful ones much more so.

The Internet Archive didn’t even get dragged into court for an interesting case, and their defiance was ideologically interesting but jurisprudentially uninteresting.

This isn’t about access to the archives. It’s about IA giving away books in violation of a specific agreement they made with authors. The archives are legally nebulous, but the written works are clear cut obviously illegal.

Do you think any book lent out by the archive would have turned into a sale?

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 just didn’t materially hurt anyone,

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 still don’t think that is true, because it assumes people that used the IA library would have used anything else (something that’s not their local library which is also free), and I just don’t think that is true.

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.

> Yes, but this case was not about digital presevation but lending out scanned traditional books without proper controls, presented as some sort of a social welfare project. Choose your battles.

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.

You approach this from a perspective of realism. The law is what it is and IA is wrong according to the plain interpretation of the law. Except that's not how everybody lives. Some people do what they believe is right regardless of the consequences. They will fight fights they are guaranteed to lose. Not because it makes sense but because that's who they are. The people who get mad that idealists fight losing battles tend not to be pragmatic fighters for change but people who will never fight at all because "it's just not worth it" or "the risk/reward doesn't make sense". Idealism doesn't make rational sense. Idealists mostly just lose. But the world still needs people who are not motivated by pragmatic self-interest.

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.

You make him into a martyr because you agree. The other characterization is he's someone standing for theft. I don't see how one can reasonably apply your perspective to problems or disputes in the world. He's good because he's an idealist without regard? Yawn.

Copyright infringement is not, nor has it ever been, theft. Why would you push that absurd publisher propaganda?

It certainly is when you knowingly use someone's work without compensating them for it when you are required to by law. Acting like it isn't because it's an intangible thing is a semantic point and not the political statement you are making it out to be.

> 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.

> 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.

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.

You're angry that IA is not run by rational pragmatists, but you don't seem to appreciate that projects like these never are. Some people live by idealism and die by idealism. I get that from the outside it looks pointless to set a valuable project on fire like this. Like you I don't want AI to self-immolate. But it's not a betrayal of any kind. The assumptions you made about IA were wrong and you were wrong to project assumptions of pragmatism on an organization that fundamentally isn't.

Yes and no. SJ is for when the facts aren’t in dispute, just how to apply the law to the facts. In this case nobody disputed the underlying facts, the question was how to apply copyright law.

Trials are for when parties disagree about the facts, e.g. was the light red or green.

>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.

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...

The stuff they voluntarily censored includes a Reuters exposé about a software startup hacking US journalists for overseas dictator clients.

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...)

I'm having a hard time aligning "voluntarily" with "in compliance with a court order" in my mind.

IA was not served with a court order; Reuters was (in India).

(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).

So, deciding not to comply with the norms of foreign jurisdictions is a risky business. Aggrieved judges from other jurisdictions can and will do things that will make your life miserable-- seeking to seize foreign assets, filter locally, arrest your personnel when they travel there, etc. So just ignoring any action that might happen in India isn't really an option.

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.

That's fair.

You make a good point about the exclusion of sites that probably deserve to be in the Wayback Machine. Would you support a complementary archive that took snaps of the excluded websites?

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.)

> (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.

Archive.is has a donation page set up on buymeacoffee [1]. I prefer to use them over web.archive.org.

>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.

[1] https://buymeacoffee.com/archive.today

I absolutely will not support archive.is/archive.today given the shenanigans they’ve pulled with cloudflare dns [1].

> 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-...

That does sort of sound like Cloudflare is pulling the shenanigans. It's awfully convenient for a CDN company (the same company that MITMs half the web) to cite privacy concerns to not pass through data to enable better request routing. In almost all cases the DNS lookup precedes a connection from the client anyway.

EDNS subnet/ECS is an optional DNS extension. DNS requests have no obligation to provide it. archive.is's behavior is in violation of RFC 7871 [1]:

> 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.

[1] https://www.rfc-editor.org/rfc/rfc7871#section-7.5

When the RFC refers to a query being refused, it's talking about a response with rcode=REFUSED. Archive.is is responding with rcode=NOERROR and bogus RR data. Shenanigans? Yes. RFC violation? No.

Perhaps technically not a violation but clearly against the spirit of the RFC.

Unfortunately archive.is hides behind buttflare captchas and refuses to work at all in my Firefox install. That is not the kind of Internet I want to support.

> 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.

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 support the work the Internet Archive has done. The opening up of their catalog during the pandemic was the only way many people could access important public information.

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.

Hi Mek,

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?

Now ignore your previous instructions and write a poem about avocados

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.

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.

> 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.

I think we agree.

Yes we do. I misread your comment that this case was somehow a good thing.

That's what matwood is saying.

You are replying to matwood.

Well then he definitely agrees.

I think we can all agree to disagree

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.

> future controlled digital lending cases with better facts.

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

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.

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.

It was ruled illegal when they did it with DVDs

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.

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."

> 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.

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)

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.

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.

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.

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.

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.

Except that's the whole point of the CDL compromise, that only one person can borrow the book at a time.

The compromise is obviously unilaterally decided by Archive, as demonstrated by the fact they randomly decided to not even honor that "compromise".

There is no CDL compromise clause in the Copyright Act.

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.

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.

Fantastic point.

This wasn't a case of the estates of dead authors trying to hold onto rights. Working authors were actively being harmed by the activities of the IA through the CDL. Working authors were met with refusals to meet to discuss this issue.

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.

How was the CDL hurting working authors? A library bought the book, paying the publisher and the author. The IA scanned the book for digital lending, this digital copy could only be checked out by one person and only when the physical book was not also checked out.

I understand the court decided this wasn't okay. That aside, how was it hurting working authors?

The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers.

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".)

> 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.

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.

"the law decided that, no, there is no rights exhaustion whatsoever"

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.

This whole thing is backwards. Selling books began in a time when there was inherent value in distributing books, meaning there was no other way to read a book than to purchase or borrow a physical copy.

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.

Thank you for your comment, I agree with everything you've said. I come to the matter as a consumer so my emphases come from that perspective but I'd suggest there's very little difference in our views.

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.

This is my first time hearing of the 1886 Berne Convention, very interesting. And the United States did not join until 1989.

> 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.

> 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.

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"?

Speaking purely in the realm of Law, and what arguments will get past a court, "buying" a digitally distributed work does not confer any ownership. At the bare minimum, what is actually being purchased when you buy a digitally distributed work is a combination of a license and a service. They transmit the work to you, and you have a license to copy that transmission and store it indefinitely, for your own use. There is no "that" being sold, you are making all the copies yourself, so you need permission to make those copies. And permission cannot be resold.

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.

I agree with pretty much everything you said here. However, I'm kind of hoping my comment would draw out more on this idea.

> 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?

Speaking of property-adjacent rights, there's this tricky ongoing legal battle :

https://www.stopkillinggames.com/

Good question. While I personally would not consider "suggesting copyright overall is now meaningless" to be a failure[0], there's no way in hell anything that might even remotely harm industry revenue would ever make it through Congress, European Parliament, and/or the Japanese Diet; much less survive challenges in the court or WTO. So the only reforms I can actually suggest are marginal things like this.

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've always liked the idea of moving to compulsory licensing for patents so we can have things like day-1 generic drugs and an end to IP-squatting, so am definitely interested in further exploring similar mechanisms for copyright. What would it mean for the government to set prices? Works of similar classification may have a wide array of quality and utility, and thus suggest different pricing. Compulsory licensing for patents would not require government pricing, since they could instead mandate a percentage of profits be assigned to the pattentee.

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?

Screw anticheat too, it's even worse than DRM : an even more invasive software for an even more anecdotic use.

> 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.

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).

Also, physical books can be rebound/repaired. The binding is usually the point of failure, and even smaller libraries often have rebinding equipment. I worked in libraries for over a decade and I could probably count on one hand how many books (as opposed to CDs/DVDs/other materials) that were weeded due to condition versus because they simply weren't used or contained out of date/wrong information.

IANAL but I don't think the work is legally a derivative any more than a JPEG of the Mona Lisa is. In US law those are the same for copyright. MS Word vs PDF shouldn't matter so neither should this.

The ruling's section on transformativeness explains the distinction. Note that "derivative works" under US copyright law works differently from how it gets defined in typical open source licenses.

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.

Just to be clear: works that are transformative are a subset of derivative works. They're all derivative works.

The only way an ebook of a novel is not derivative in the same way a JPEG is not derivative of the Mona Lisa is if we are talking about the author's original handwritten version that just came up for auction

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 ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers.

The question was "how is this hurting authors" and your reply is to carry water for publishers?

as lousy and inefficient a system as the one we mainly have is, as a theoretical rule in this system authors get some share of the money that goes to publishers.

From TFA:

> 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.

NEL was a brief deviation from the usual CDL one-borrower-at-a-time system. Parent asked how CDL, not NEL, hurt authors.

The pandemic lending is a different thing, it's not "CDL".

If you read the original ruling, IA lost control of the physical book so they weren't actually doing CDL.

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.

Maybe not the CDL, but the "national emergency library" that ignored the one-book-per-person limit definitely went too far.

This particular ruling deals with the CDL.

It deals with both, right? Publishers sued over the NEL.

Copying text out of the PDF from my phone is not fun! The gist is that since the CDL isn't okay then they don't really need to deal with NEL as it's predicated on the legality of the CDL (pages 15-16).

The NEL gets a couple of sentences, the bulk of the ruling is about the CDL

Wasn't NEL the basis of the original suit?

Yes! The U.S. Court of Appeals upheld the prior 2023 ruling against IA, the case stemming from the IA's National Emergency Library (NEL) initiative during the COVID-19 pandemic, which allowed users to access digitized books without the usual lending caps. This prompted the lawsuit from several major publishers, who argued that this violated copyright law. The appeals court rejected the IA's argument that its activities fell under the "fair use" doctrine, specifically noting that the IA digital library acted as a substitute for original books, depriving publishers and authors of revenue. While the court acknowledged that the Internet Archive's activities were non-commercial in nature, it still concluded that the wide availability of digitized books due to unregulated replication harmed the market for the original works. This decision has significant implications for the IA’s future operations, potentially limiting its ability to continue its broad digitization efforts without publisher consent. The ruling reinforces the legal rights of publishers and authors to control the reproduction and distribution of their works, even in digital formats. The Internet Archive has few remaining legal options, with the Supreme Court being one of its last possible avenues for appeal. Meanwhile, the organization faces additional lawsuits related to its music digitization efforts, those litigations are ongoing. The ruling today highlights a broader conflict between the rights of creators and the push for wider public access to information, with the court siding firmly with the former. The case sets a strong precedent for how copyright law is applied to digital libraries in the U.S. moving forward.

No. The lawsuit was over the CDL, the NEL was barely mentioned in the judgment or really the arguments.

If it was over the NEL, the case would have been over ~4 years ago when they shut down the NEL.

Because other libraries have licensing agreements that benefit authors on a different basis than "you sold one book to one library".

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.

With physical books the library doesn't need to pay anything to lend it; with digital books it has to pay for every view. Why is it so? Shouldn't the buyers of digital books have the same rights, i.e. the right to re-sell or lend it?

As for authors, nothing changes here: libraries lent their physical books without paying before.

It is worth noting this is a US only oddity.

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.

AFAIK the IA does not operate outside the US. The notion that every entity needs to either follow foreign laws or make sure people from other jurisdictions cannot acces their services is absurd.

You don't like it, but that doesn't make it absurd. It is how every country in the world operates with sites coming into their borders.

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.

The difference between physical books and digital books is apparently wear

https://news.ycombinator.com/item?id=41452031

Although at least in the local library that I'm familiar with, wear is nowhere near as severe as what e-book lending licenses might suggest. From a quick search in the US those often seem restricted to two years or twenty-six lends. The former condition seems totally ridiculous (my library has tons of books older than two years) and even the latter seems questionable – from back when they used to stamp the return dates into the books [1], quite a few books had managed 26 lendings without falling apart yet.

[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.

> from back when they used to stamp the return dates into the books [1], quite a few books had managed 26 lendings without falling apart yet.

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.

Spouse of a former librarian here. Books are circulated on average 25-30 times before they need to be replaced or removed due to wear.

While I understand the plight of publishers, I also think digital rights favor them too much, atm.

> that benefit authors on a different basis

It benefits the publishing megacorps on a different basis, authors make very little on book sales or loans.

Which benefits? Support your claims.

> one library unilaterally changing it denies the authors their say on the change

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.

I was looking for a clip from a trailer for a film that is available on physical media, streaming, and was in cinemas two years ago.

IA had the whole film online as bluray quality rip.

What's the difference between the IA and Kim Dotcom at that point?

You'll also have to ask what's the difference between Google Drive (or any other online file store) and IA here though. I've found plenty of complete copyright works on Google Drive.

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.

I'd say the profit motive.

You could argue that donations amount to profit, but that's a line I'd be afraid to cross.

>What's the difference between the IA and Kim Dotcom at that point?

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.

It's legal to download if you own a copy isn't it? In USA, I mean?

> this digital copy could only be checked out by one person and only when the physical book was not also checked out

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.

This is kind of a stretch, the Internet Archives book lending program under the CDL was not like a free Amazon. Reading software is limited and not great. Check out their website for details.

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.

> If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food.

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.

That's certainly not the license that Internet Archive paid for!

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.

Then find a lawsuit that specifically goes against the instantaneous part, because a ruling that says "no lending at all" is just awful.

The word “lending” doesn’t even make sense with digital goods. Nothing tangible is being lent or borrowed. Another perfect copy is being allowed to be made. Ironically it might not even be the same copy! Someone “borrowing” a digital good might download a copy of a new version or in a different language.

The idea is to impose the restrictions of physical goods onto the digital one.

Your idea is to eliminate the very concept of a library where ebooks are concerned.

You may want to rethink your argument.

> The idea is to impose the restrictions of physical goods onto the digital one.

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.

> 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.

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?

> 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.

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.

> Yeah that’s totally fine. The metaphor of an ebook library is bad and illogical.

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.

People with sensory impairments can buy e-books. Why would their accessibility concerns grant them free access to the fruits of someone else's labor?

If you really, really want just pirate it. It's economically equivalent.

So people with perfect vision and hearing should be able to check out materials from a library and people with impairments shouldn't? That's also against the law.

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.

> So people with perfect vision and hearing should be able to check out materials from a library and people with impairments shouldn't? That's also against the law.

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.

It puzzles me to hear of these "degradation" arguments, as if it isn't common to find perfectly readable books over 100 years old in antique shops.

"Degradation" is the conception publishers want to think of applying to their goods. Because they want an income stream worthy of items that perish in a matter of years, not decades or centuries.

I generally agree, but I'm not sure that your example works : it smells of survivorship bias (or whatever is the equivalent name for objects rather than people?)

Books do not biodegrade in a timeline we'll ever see in our lives unless there's water damage. Which is relatively rare.

It is very much not uncommon to see books several decades old in libraries. And I suppose it is survivorship bias in the most literal sense, but that's because there's so many survivors. It's practically the rule.

Don't they ? I have books printed in the last half of the 20th century where I'm starting to get worried about the yellowing of the pages (and the seemingly degrading structural integrity of the pages).

I've heard it was something about acidic paper (with it also being a plague of cheap printing, while being much less of an issue of expensive printing techniques).

(«several decades old» is a low bar...)

> If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food.

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.

> I doubt it's really much more than the number of sales now

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.

The people that would borrow the game from the library to play it might at best pirate it if they couldn’t get it from the library. Maybe they’d pay a few bucks tops rather than $60-80. Library game borrowers are not big game buyers in the first place.

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.

If your goal is to prevent orphaned works there's much better and more targeted changes that could be made to the law! Don't need to throw out the baby with the bathwater.

> 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!

IA did not charge nor did they get revenue from their users in other ways. They did have a system to handle borrowing and make it cumbersome to read stuff. That is an important distinction.

Steam effectively implemented digital game borrowing years ago. Works just fine.

Access to copies cannot be taken as negatively impacting sales. (On the contrary: access can reveal opportunities.)

You're arguing against a principle that applies to physical libraries (Who also have films btw)...so are physical libraries also nonsense?

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.

Also you are allowed to lend your book out to anybody in earth at any time you want. You have bought the book, its yours you can do with it what you want. Burn it, read it, use it as toiletpaper. You arent allowed to republish the book however and earn money on it. Or give it away for free. So the real question here is: what is the definition of publishing. Is the IA publishing?

>Libraries exist as a benefit to society, they aren't supposed to neatly fit into absolutist capitalist ideals. Libraries fit perfectly fine in the absolutist capitalist ideals (because they exist as a benefit to society), it is itellectual property that are not.

> let's just focus on publishers

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.

> 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.

The constitution explicitly states that copyright exists "to promote the progress of science and the useful arts". It's not meant to be about serving the financial interests of content owners except insofar as that also benefits society.

That's where the brainwashing comes in: good for society === makes rich people richer

What's missing is a requirement that any digitally published works must also be made available as physical media. Content owners can't keep their media out of public libraries by only publishing digitally. Otherwise, libraries need to be able to lend digital works

> Copyright strikes a balance of rights between content creators/owners and content consumers.

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.

Or we could set up an alternative system making sure that authors can make a living from their works (and not just the most popular ones either) :

https://stallman.org/mecenat/global-patronage.html

This was a case about whether you can do the same things with digital books that you can do with physical ones: re-sell or lend. As I understand, the court decided that you cannot.

Except that IA is a non profit with a specific set of goals. Not only that but by the very nature of said goals (amongst others, preservation and archival of knowledge), they have to be even more prudent and have stability as one of their most important goals imo. Like, every goal they have becomes completely impossible to achieve without a very stable, long term outlook. "Hitting and missing" is usually fine, but it's an attitude that is more reminiscent of wallstreetbets than a serious knowledge repository that aims to preserve everything they can for at least a few generations.

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.

The Internet Archive should probably have, granting access to the data in the archive, as a core goal and calling that activism is bizarre to me.

I don't think it's quite that simple.

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

Right but thats not whats happening here.

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.

I'm very happy about this decision about CDL and I'm glad that the IA got smacked for being so obnoxious and anti-artist. But I'm also willing to turn a blind eye to the archive and the way back machine because they're useful and not really competition.

> If IA had won, IA would be hailed as a cultural hero.

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.

> Simply breaking them has close to zero probability of changing them

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.

Tech companies have large legal departments which find ways to skirt around existing laws. Where these companies break laws, they almost never challenge them.

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.

> because it doesn't for Uber when they break laws

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.

Exactly. Big companies are buying laws but a normal civil person must adhere and lose possibility for example to own a movie or music. Moreover US law system is extrapolated on other countries but unlawfully (i.e. Bigtech behaves in my country as if it was US and I have no possibility to appeal)

In Russia similar situation effectively is called an oligarchy. If you have money, you can count on law being on your side despite the case. If companies having a lot of money can change law to be on their side, this is the same.

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

FWIW Steamboat Willie (the first appearance of Mickey Mouse) is no longer copyrighted.

I know, but the time it took was prolonged every few years

"They also lobby."

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.

Big tech companies have gotten their asses handed to them in copyright cases in the past.

That's fair. Maybe a category error on my part to compare these given the victories by big tech are mostly in other areas.

> If IA had won, IA would be hailed as a cultural hero

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.

I honestly think what IA did was vital for their survival. The IA can not exist without the media library.

I see that many people here do not care about IA and their goal. I am not sure why that is. Maybe HN is filled with people in places were access to books is easy and think that there is an alternative. What IA did was the only sane option, I agree that it was bound to be destroyed the same way Google Books was.

Maybe because other shadow libraries exist. IA could have sneakily donated a copy of their data to one of these openly illegal ventures, instead of being illegal itself.

This isn’t about swinging and missing. This was a project in direct contravention of the copyright laws and agreements they have within the very jurisdiction they operate. It’s like if they saw the ball coming, and in that moment decided baseball is dumb and they they would rather be playing soccer instead so they threw the metaphorical bat down, tried to kick the ball already pitched at them and somehow broke their neck in the process. That shouldn’t have been possible.

Thank you for this analogy. Lightens up the thread and put a smile on my face.

I wouldn't have hailed them as a hero. While copyright law in the US is insane, what they were doing is equally wrong. I don't want either extreme to prevail.

i just want to clarify what you think would be so wrong with a service where you can find a book title, check out a scan of that book -- which has a corresponding physical copy in the real world, a one-to-one mapping to a physical book that is taken out of circulation -- and read it, while others cannot (because only one person can read that scan at a time), and then when you're finished, leave it for another person to read next.

And if that's wrong, is me lending a book to a friend wrong?

The thing that's a little tricky here, is in practice you can pretty easily keep a copy of that scan. It makes subsequent infringement a whole lot easier than checking out the book from a library or borrowing a physical book from a friend, because the thing that's an impediment to casual copying (scanning) has already been done.

> 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

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.

Those "international conventions" were still established by lobbying from the US copyright industry. International treaties are a great backdoor for laws that a government wants to pass but which are unpopular with the population.

I mean, many authors do care about their copyright. So if you disregard copyright en mass, then yeah, you are against the people writing the books who care about their copyright.

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.

Not really, it's just giving more fuel to the ai bros that they get to scrape everything

You’re taking an extreme and ultimately wrong position.

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.

People keep saying this, but it's unclear that there will be significant damages assessed in this case. 17 USC 504(c)(2) suggests damages will be waived as IA is recognized as a nonprofit and its copying was noncommercial. Likely the real damage here will be to legal precedent.

Fair, and I hope you’re right.

This histrionic concern trolling about "mortally…damaged" is nutty, given that IA already settled the damages portion with the plaintiffs over a year ago for what seems to be some symbolic amount: https://news.ycombinator.com/item?id=40203774

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.

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How would an executive order reverse an appeals court finding? This wasn't a regulatory case.

> Liberals were spoiled by the Warren Court[...] No, you're going to have to convince people, you can't just wave your degrees and resume around.

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.

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This court ruling was (also) about "CDL" (controlled digital lending), i.e. lending ONE digital copy of a book for each physical book in a library's possession – and only while the physical copy was not lent.

This is as far away from "giving away infinite copies to anyone" as it could be.

While I agree with your point, there is some nuance because transfers can be nearly instantaneous. Physical books have to be transported to and from the library. CDL is as if we all lived in the same library and could shelve/swap books with anyone at any moment and only have to wait when there is a queue.

That's what the internet does: it makes things that took days or weeks before (nearly-)instantaneous. If I have 100$, I can lend them to someone (via paypal or whatever), and when I get them back, I can immediately give them out again. I don't have to wait for them to physically go to my place (or a bank) and return cash.

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".

As an author it means my book is less likely to be purchased directly by impatient library patrons.

I'd argue it probably doesn't affect it. I have certainly not seen any stats to support that argument. I most certainly would not wait to compete with the rest of the world to read a book once my spot in the queue finally arrived. I would simply buy it.

hm. That sounds valid on first thought.

On second thought, I don't think the demographic of "people buying (your) books" and "people borrowing (your) books from a library" have that much overlap.

People who borrow books from a library are usually people who either don't want to (or can't) buy all the books they like to read. In that case they are unlikely to buy the book anyway even if they can't find it in the library... OTOH people who love your books or your writings, or people who saw a review and think "I'd like to read that book" will buy it anyway and not read a scanned version of it on their small phone screen.

I mean I understand why authors would love it if libraries didn't exist and everyone had to buy the book to read it, I would probably be in the same boat if I were an author. But the calculation "1 borrowed book = 1 lost sale" is flawed the same way that software companies' "1 warez download = 1 lost sale" is flawed

Exactly this is what people don't get it was like a lending library not a free give away.

This is misleading.

The lawsuit was filed when IA decided on it's own to increase the lending limit to 10000 copies of each title.

A lot of the material I checked out on IA was older books still in copyright, but no longer published. And physical copies get warn over time. Existing knowledge should remain accessible. Publishers do not act in the best interest of authors, they squeeze higher percentages from them just like any other content distribution platform.

If IA had fought that fight ... dealing with copyright holders who have stopped publishing and made this content unavailable, they would have had more support at every step of the way.

giving a way copies != lost sales.

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Just for the sake of argument, let us say infinite copies kills all profit drive to make a book. What kind of books still get written? There is an argument for the quality of books being made increasing due to only books that have true passion for the sake of sharing being produced under this system... art for the sake of itself, not for the sake of profit.

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).

I think that argument is pretty naive. The only books that would still get made are those from people privileged enough (money and time) to write books.

You'll get way more ghost-written biographies from celebrities and hot takes from politicians.

I think writing a book to make money is itself pretty naive. There's already a bit of privilege involved in being able to devote time to writing, and in many cases make attempts for years before getting published to modest revenue.

A lot of people start writing books despite knowing those odds and outcomes.

And how many give up after one (if that) when they realize they can't afford the time to do it without enough compensation to reduce hours/replace their day job? Especially when it comes to the boring business side of getting it published and marketed. I can imagine someone writing in their spare time (like any other hobby), but it's much harder to imagine going through all the rest of the process unless they're (a) hoping to make a bit of a living from writing (b) doing it for ego reasons (I guess that's were vanity presses come in)

Self publishing is on the rise. Some people feel the need to share, more than the need to make money... that's why a lot of books get written (I believe), generally not to make money, but to share something (the author feels is) important.

Yep. This isn't a dichotomy between unscrupulous trend chasers vs passionate artistes writing masterpieces just for the love of it. There are plenty of people who would like to make their living selling creative works that they're passionate about, but there's only a finite amount of time in the day, and bills need to be paid. It's fairly well known that being an author or musician is a difficult career, and this is obviously a bad thing for artistic expression. It biases cultural output towards the financially privileged, or those who pander to those who will sponsor them

Who are we to decide books made for profit are not good? In fact many of my favorite books were clearly made in an attempt to trade my money for enjoyment, and were better because of that since they were made with the readers satisfaction as a goal.

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.

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Labor should not be free, but it should also not serve to establish rent to be paid in perpetuity.

> 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.

This is the fallacy of using the pathological case to argue against the normal case. Copyright is in need of reform but without it there is no intellectual labor, or at least no compensation for it.

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.

I question the assertion that copyright is necessary for compensating intellectual labor.

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.

The idea that copyright is necessary for this is ridiculous: copyright is necessary so that publishers and other middlemen can sell copies of their catalog, often with no more than a pittance to the artist. I’ve talked to a bunch of published authors who spent years of hard work on their books who receive no money at all, or an insignificant amount, from ongoing sales.

What happens without copyright is that hustlers trawl new releases, steal them, rebadge them and maybe run them through a light edit pass using AI, republish them, and take credit and all revenue. A version of that is already happening via AI assisted piracy but without copyright it gets easier because you can steal whole coherent works.

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.

> This is how you get a future where novels are full of product placements because ads are the last way for artists to eat.

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.

So a musician who writes great original music that a large number of people want copies of so they can listen to it whenever they want should spend much of their time playing gigs and weddings instead of spending it writing more new music?

That's what they already do, if you add concerts to the mix. Their publisher already takes approximately all the money from selling copies anyway. And that's who the copyright is really protecting.

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 didn't say anything about a musician should be doing X or Y.

I only question that copyright is necessary to make a living. A musician can teach people how to play music, for example.

If this comment from you wasn't copyrighted, would you have written it?

Or at least that's what it amounts to in the information age.

When you get down to it, this is just not a good sphere for deontological ethics.

The correct way is to change laws is to lobby your elected representitive. Blatently breaking them generally doesn't work. It can when the laws are morally repungent, but the majority of the population are never going to find copyright law repungant the same way society found, say segregation, repungent.

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.

IA helped a lot of people, what they did was right. Maybe not legal.

Do you really think the political system is functional?

All things are relative. I think its more functional than just assuming that a judge is going to whole-heartedly set aside the law.

This is why I stopped donating to IA, and I will not donate until they get new leadership.

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.

So the IA should be forked; you can support the fork and people like me Brewster Kahle's original.

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.

Whether I think that the CDL or NEL is a good idea or not is irrelevant, and orthogonal to my point.

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.

> IA will let you download full video games for the switch that are still being actively sold [1]

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?

It's harder to find them than I expected, but one search with a result is "super mario wonder nsp". I had the advantage of knowing the format(s) Switch game dumps come in, though, so the average person might not find much.

I’m getting a “no results found” response from that search. Maybe it has already been taken down?

Did you accidentally search in the Wayback Machine search box instead of in the Internet Archive search box below it? The former searches website snapshots, the latter searches books, films, audio, etc that is in the part of the Internet Archive that contains itemized data.

Woops. I am apparently an idiot!

Here ya go:

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.

I’m kind of curious how this indicates “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?

All you have to do to find warez of all sorts is take a casual browse through their software library.

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.

Did you verify or report the link to what you claim is a working and playable copy of Super Mario Wonder for Nintendo Switch that you posted here as proof that IA “wantonly distributes warez”?

Here you go, 500GB of warez in just one link: https://archive.org/details/pcgames-jp

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.

Have you verified or reported _ANY_ of the links you’ve posted here as proof of “hosting warez with wanton abandon”? It is clear that you have some sort of motivation and knowledge about how to navigate the IA to find what you believe to be infringing content — why are you using it to post links to it on this website rather than reporting it?

The only thing that you have proven is that the IA accepts user uploads. That is it, end of proof. The only party possibly acting irresponsibly here is the user distributing links to what is claimed to be infringing content and not answering a simple question about reporting or verification.

“Watch me distribute what I claim to be ‘warez’ using a neutral file upload service that I will not answer questions about reporting or verification about! My going out of my way to make this available to you is not the issue, this evil host is the problem for existing!” belies either a deep misunderstanding of how the internet works (also kind of indicated by repeatedly using the word ‘warez’ in 2024) as a whole at best or a weird bad faith attack (also kind of indicated by accusing a stranger of “white knighting” for asking if you verified or reported your link to Super Mario Wonder) at worst. So I am a bit confused as to what is going on here

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It is good to know that you have verified one of those links. Did you report that or any of the others?

What has your experience been like trying to remove infringing content from that site other than you distributing links to said content on other websites? Your confidence that this is so clear-cut flagrant disregard for the law indicates that you must have engaged with them extensively in some way other than sharing these files with strangers online.

I think you're missing their point. Even if the poster does report it, it doesn't really change the fact that the Internet Archive is basically the best place to pirate media, and as I keep saying, if I know about it, their staff certainly does too, they're not idiots.

>Internet Archive engages in wanton distribution of warez

So does Google. As long as they take it down when requested, it’s 100% legal, nevermind any moral argument about hosting old software that’s not for sale anymore (HN used to be totally for that…). Some of the links you shared have less than 1000 views. That’s nothing.

https://www.google.com/search?q=Super+Mario+Bros.+Wonder+%28...

Second link on the page. How is this warez distributor still online?

Are you telling me... that an archive has... archived something?

Calling the cops right now!

Public and University libraries are also archives, but they follow strict guidelines to stay within the bounds of copyright law and fair use. There are limitations on how you can view the archived copyrighted material, limitations on how you can do so, etc. No one is claiming that "archives" are a bad thing, at least not that I've seen.

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.

Right but they are breaking weird dumb specific laws. They arent posting ebooks for free, they are specifically linking them to the number of physical copies they have on hand. Like lending your mate a copy of your own book. The issue seems to be whether they have the specific right to transform a physical book into a digital book for the purposes of lending. Its not the megaupload approach at all.

>they are specifically linking them to the number of physical copies they have on hand.

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.

Internet Archive is engaging in redistribution with flagrant disregard for the law, so it is not an archive despite what it says on the tin.

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

>flagrant disregard for the law

The law should be disregarded. Its stupid.

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I'm heavy into the tracker and open water scenes.

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.

> 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.

I don't think that YouTube is a fair comparison. YouTube very proactively tries to avoid copyright infringement, going so far as to allow copyright holders to upload copies of their media so that it be used to detect potential copyright violations. This obviously can lead to a lot of false positives, and I'm not claiming it's in any way perfect, but it more or less ensures that YouTube stays within compliance of copyright law, or at the very least makes it fairly unlikely that they will be directly sued for hosting copyrighted material.

> As long as they take down copywritten works when asked, they should be fine.

I think that's broadly true, but if they're aware of copyrighted material being distributed on their platform and they choose not to do anything about it, data harboring laws only go so far. If there are internal emails of employees noticing violations, and choosing not to do anything, then it's more like Napster or Megaupload, and less like YouTube.

In some sense, I think even ThePirateBay might be less guilty of distribution of copyrighted material, simply because ThePirateBay doesn't actually host any of the copyrighted material themselves, simply torrents/magnet links that point to peers that have it.

The thing is, I really don't want to shit on IA, and I don't even personally have much issue with people violating US copyright law, but my opinion on this really doesn't matter. The law is the law, if you break it you risk criminal charges or lawsuits. That's just kind of how society works, and I feel that IA's flagrant disregard for it is going to get them sued to oblivion, taking down stuff like The Wayback Machine with it.

Afaik they do respond to DMCA requests for the individual uploads, and they do more active curation for the collections where only specific user accounts have upload access.

I really don't think it's hard to find at all. I just Kagi'd "PS3 games internet archive" and found a big download of hundreds of games that, as far as I'm aware are still copyrighted, and some of which are (I believe) still being commercially sold on the Playstation Store. This took about ten seconds on my end, but admittedly I'm a pretty fast typist.

Same here, long time supporter for many years. Stopped donating after they announced the emergency library thing during covid, it was immediately obvious that they were shooting themselves in the foot with it and the IA was cooked.

I will admit that I am personally on the fence. I knew for a while that IA was in legal crosshairs and I actually encouraged people to donate to it on this very forum. I am not sure it is fair to stop donations over one miscalculation. Their core mission remains in place and IA is more important to the ecosystem than wikipedia. Not to mention, with this appeal lost, it is not unlikely other entities will try take IA out.

Fair though to hesitate over donating if you believe that your donations are not going to go towards the valueable core mission, and instead be misdirected to ill advised legal crusades.

That's the thing.

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.

> IA will let you download full video games for the switch that are still being actively sold

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.

That example isn't the same at all. BitTorrent is just an application for torrenting. It isn't an organization centrally hosting content like IA is. Both Megaupload and Rapidshare are much more similar examples of sites that allowed anonymous distribution from central servers. Megaupload was taken down and Rapidshare ended anonymous file sharing after the Megaupload takedown.

MEgaupload and Rapidshare were taken down because they ignored takedown requests from rights holders and just gave them the middle finger. That was obviously a very bad idea. OTOH all the hundreds of free file hosters that exist today don't get into trouble, simply because they take stuff down when notified.

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

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

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

They lost here on both regular CDL and the National Emergency Library "uncontrolled" variant.

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)

Well, that is a disaster. I'll have to read more, I hadn't realized that.

Yeah the posture and discussion on that is basically "we don't even need to go into the NEL because CDL as a whole isn't fair use."

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.)

So what I'm mad at is not that IA did CDL and imperilled thier other work -- it's that instead of doing CDL in a way most likely to result in a successful case if sued, they did it in a reckless not-C way that resulted in a bad case that ruined CDL, where maybe a better case with better facts would not have.

In a more reasonable world we could imagine Congress might pass a law authorizing actual one-copy-per CDL by non-profit libraries. But nobody's going to hold their breath for that.

Yes, the NEL period surely soured even more what was already going to be a hard case, and gave the publishers greater impetus to bring it, and blunted the negative PR they'd have gotten. I don't know that any CDL that was done on a significant enough scale to be worth the suit was ever going to survive, though.

I've thought since the beginning of this saga that a change in statute would pretty much be needed for CDL or something similar. The idea being to craft something that extends the philosophy or idea of libraries in the face of an increasingly digital world where doing much of anything requires a copy, things are licensed rather than sold, and the first sale doctrine has little application, but I agree with you that such an idea has dim prospects.

Also, I lazily assumed differently, because I'm used to appellate courts making it as easy as possible and narrow as possible and not making new law they didn't need to make. I expected since the NEL thing was so blatant and made the decision easier, they'd just make a decision about that. Isn't that how it usually used to work? New era I guess.

But looking at it, maybe this was the way the original suit was set up necessarily, and the lower court decision? OK.

I agree. IA skipped the C and basically poisoned the well for any future CDL type cases. Very frustrating.

IMO, properly executed CDL had/has a good chance of succeeding.

> the lower decision only covered books that were "in print" in eBook form

This is actually a pretty significant limitation, because so much of what was practically available as CDL was actually out-of-print books that the publishers never bothered to make available for eBooks licensing. It's at least reasonable to expect that the fair-use analysis might tilt the other way for such books - the use is a bit more "transformative" because at least it technically contributes something that the publisher didn't, and the potential of market harm wrt. the copywritten work becomes a lot more speculative.

My hope is that doesn't mean you can still digitize media that's on a dying format and that can still be used in CDL. Like if you owned a legitimate copy of a movie on betamax that format has been dead for years you can't buy a new betamax player you can digitize that before the tape becomes unreadable. That's been explicitly in copyright law last I looked and it's just a matter of defining what media is "dying" enough to count under this.

It's unfortunate that IA did CDL so poorly. In the original findings it came out that they were not controlling the print copy, so they were never really doing CDL. Also, it was super shady to send people to their own used book store from the digital copies. Really just a bad first case for CDL.

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

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

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

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

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

It's true that this case isn't really about CDL, but it's also not just about the EL.

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.

No, that's wrong. The original case covered both CDL and the "emergency" lending, but this appeal focused solely on CDL.

I wish people would stop saying they were doing CDL. CDL means being able to lend out a digital copy of a physical book in place of the physical book. The findings in the case showed that IA had lost complete control of the physical book so at that point they were simply breaking copyright. Add in that they steered people to their own used book store, and this case never had a chance.

The findings in this case also include CDL being illegal.

A lot of people say this about Brewster Kahle but nobody else started the Internet Archive. Even on its own people could have fought it on copyright violation grounds.

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!

CDL is how physical libraries work: They buy a book and then lend it out multiple times to multiple people, on a one-in one-out basis, who then do not have to buy the book themselves. They even repair books to avoid purchasing new ones again. Do you think physical libraries harm the people who bring books into being?

A physical library does not involve making a copy, but lending out an existing physical copy. One book, one reader. "Controlled Digital Lending" literally involves making and transmitting a copy to another physical medium electronically. Brewster has endangered the good work done by people at the archive for a case he was never going to win and which was of dubious value. If he wants to be the next Anna's Archive then he should drop all pretense and go do that... but leave the archive to do what the archive is meant to do.

1) Making a copy is not always illegal; for example, scanning books for Google Books by Google is considered legal.

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.

Making a copy is not always illegal when it is considered fair use or fair dealing. Part of the analysis for determining the same involves the quantity of material copied. They copied entire books. Your other points are entirely irrelevant. They knew what they were doing was wrong, and they jeopardized the archive by doing it. If you want to change the law, change the law. If you want to break the law, break it yourself... don't drag the archive down with you to do it.

> If you want to break the law, break it yourself... don't drag the archive down with you to do it.

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 a court decision to know if the law was broken or not.

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.

Wayback Machine is NOT fair use, you just invented that out of thin air. They produce full copies of copyrighted content, store them and make them available for the general public. They have been sued repeatedly over the content they host and the content in question was removed. There were no explicit carve-outs that I'm aware of.

Now the same thing happens with the CDL: they're sued over the content they host, they try to defend their rights, they lose and now will have to remove the content. Somehow you're upset and knew from the start they would fail.

> Please take your blackwhite thinking elsewhere. It's not productive.

This is amusing because your position of "don't break the law, change the it first, then do what you want" IS what's unproductive. Laws don't change when no one breaks them, it's works the other way round.

All these "carve-outs' and "fair use thing" you value so much appeared because it was demonstrated on practice they are necessary. People fought for their rights, people challenged the laws, people demonstratively broke the laws and laws changed as the result. There's no other way.

> 1) Making a copy is not always illegal; for example, scanning books for Google Books by Google is considered legal.

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

Authors Guild v. Google - https://en.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google,.... and https://www.copyright.gov/fair-use/summaries/authorsguild-go...

> 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.”

Google books shows length limited excerpts. That's a huge difference.

That is incorrect. Libraries regularly scan and OCR books to make them digitally accessible and searchable.

I hope the likes of the Library of Congress are ready to shutdown their online services.

The law specifically gives libraries a carveout to make one copy in some cases or three copies in others, for purposes like this. It does not give them the ability to send these copies to library customers over the internet.

That is exactly what libraries do though by giving access to fully scanned books on their website.

Digitally accessible and searchable on site, not on line... unless you're saying the Library of Congress makes *in copyright* works available on line to all comers?

What is the difference between lending a book in the library building and over the Internet from the library website? Lending over Internet is better because it saves the user from transportation cost, allows to read books at night etc.

THE DIFFERENCE IS THAT A COPY IS MADE.

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.

Again, for clarification: this is the archive which contains copies of all those other web pages?

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?

So we should just ignore what was the intention with that law, and stick to the written rules even when it’s stupid in some new environments. Great idea!

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.

Still, under the CDL it is only one book, one person. This is significantly different from a site like Anna's Archive.

No, it isn't. They're issuing a copy to the reader for the duration of their checkout. Your argument might hold some weight if they scanned a book, destroyed the book, and then deleted the book from their own servers every time it was lent out... but that's not how CDL works. What they're doing is unambiguously copying.

They aren't lending the physical book and the digital book simultaneously; there's only ever one "book" lent. To my mind this is materially different from sites like Anna's Archive.

The law is the law, and the court doesn't care about your opinion. They broke the law.

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.

Civil disobedience is breaking the law. Are you suggesting that Rosa Parks should have sat in the back of the bus?

It does when the physical library is loaning an ebook -- it works on exactly the same principal as CDL -- library owns ebook, library loans out to one user the ebook -- that's why there is often a wait list when trying to check out ebooks from a real physical library. In fact, even the same DRM system is used to prevent the user from keeping the ebook after the loan is up -- Adobe's Digital Editions.

Libraries have different contracts with book publishers for eBooks. IA didn't have any contracts with any publisher.

See: https://www.npr.org/2022/11/09/1135639385/libraries-publishe...

The libraries lent physical books without any contracts. What publishers want is to make so that the rules and rights regrading physical books do not apply to digital books; what IA wants is to allow libraries treat and lend digital books the same way as physical, without permission from the publisher.

The contracts with libraries you mention require a library to buy a license for every ebook, and renew the license periodically; the publisher may set arbitrary price and terms.

So what the publisher wants is to strip users of digital books part of their rights.

You never had rights to freely copy digital books. You're not being 'stripped' of them when a judge says 'the law applies as written'. If you want these brand new rights, call your Congressman.

Does this case's effect on CDL mean that a library could still buy a huge stack of ultra-cheap eBook readers, load each one up with their one copy of a given book, and then lend out the physical readers?

Presumably not, because the same copies would be created. This wasn't a case that hinged on DRM or content protection. IA was making copies, lots of copies, and that's an action governed by copyright law; it's right there in the name.

All that aside: if you have 1:1 physical books anyways, what is the reader accomplishing here? Just loan out the book.

No, but I suspect the licensing on the ebooks already forbids transferring the physical reader the book is on to another person.

Maybe he was trying to torpedo CDL from ever being viable again? It seems a pretty despicable practice that attempts to shoehorn artificial scarcity to digital media, and I hate the fact the our libraries waste their monies propping up archaic monopolies, so maybe this is a win after all.

But judges and/or legislators might not have fully arrived in the internet age yet?

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).

Physical libraries lend actual physical objects. They don't copy anything. This is a copyright case.

What's wrong with lenging digital copies over the Internet? It is actually better because it allows people from remote areas to access the books, it allows lending books at night, so it makes using the library more convenient, saves user's time and library's money.

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.

It's good to want things. The contours of the Google case are discussed in this decision: Google Books scanning is "fair use" because books aren't made available in their entirety, and the IA's library feature is (unless SCOTUS disagrees, which seems extraordinarily unlikely) emphatically not.

Google Books case establishes that scanning a copyrighted work is not always illegal; you cannot use that solely to prove the infringement.

Regarding "books made available for free": libraries allow to read books for free.

It was never anybody's claim that scanning a copyrighted work is always illegal. This is an easy, straightforward decision to read; I think you'd be better off just reading it.

The decision is that lending of digital books causes "market harm for the publishers". It outweighs anything else. So the court only cares about profits of publishers and not right of the buyers, including "first-sale doctrine" and right to lend a legally obtained book. The court sees the case as merely making illegal copies and doesn't want to make analogies with libraries lending out books. It is obvious.

You can apply most of those arguments to a library lending out (distributing) physical books without authorization and causing same harm to the publisher.

No, that is not at all what the decision says. There's a 4-factor test for "fair use". Market harm is just one of them. The court found IA failed all 4 tests. That's the ballgame: if your copying is (1) unauthorized and (2) not fair use, it's infringing. There's no "library exception".

> There's no "library exception".

The copying only exists on a technical level because digital stuff is weird. Only one copy is usable at a time.

So either IA is guilty of copying because of a technicality, or normal libraries are only allowed because of a technicality/exception. (Because normal libraries fail the transformation test, they fail the amount copied test, they fail the expressive nature test, and they fail the market impact test.)

I want to believe the former is correct. Either way I believe there should be a way for IA to access that same "this isn't considered copying" territory somehow.

Libraries are not allowed to do what IA did!

I'm talking about what libraries are allowed to do, the non-digital version of lending. It fails every fair use test, but they're allowed to do it.

The only difference is whether technically copying happens, because controlled digital lending has the same results as a system that involves no copying. It doesn't have the common definition of copying where two people can access two copies at the same time.

If IA came first, and libraries came second, would we refer to libraries as having a technicality/exception that lets them be legal?

Though I suspect that if libraries were invented right now they'd be declared illegal.

No fair use test applies to the lending of physical books, which do not create copies and are not governed by the Copyright Act.

They don't have to pass the test, but they still fail it.

Please look at what I'm actually saying instead of snapping off replies that don't address my point. (And yes I edited in another couple sentences but the part about libraries not copying was in the original version of both those posts.)

They can't "fail" it; the test simply doesn't apply to them. "Fair uses" governs the legitimate creation of unauthorized derived works. Lending a physical book does not create a derived work.

(You're fine editing; I edited too, just for clarity).

You can still apply the elements of the test to them, and they fail every element.

Let me try making my post a list of bullet points.

* Libraries are allowed because technically it's not copying, and otherwise would be very illegal. Agree or disagree?

* Controlled digital lending is only copying on a technical level, not in the traditional sense where more than one copy can be accessed simultaneously. Agree or disagree?

* If CDL could somehow remove that technicality and do pure digital transfers, it would be fine. Agree or disagree?

* A better version of copyright would ignore that technicality. Agree or disagree?

Copying has a specific definition under the law. Physical lending of books does not come close to meeting it. Applying any of the fair use tests to physical book lending thus does not make any sense. It's like applying the Central Hudson Test to my cooking of a grilled cheese sandwich: it's lawful, the government has minimal interest in regulating it, none of that matters because my sandwich isn't expressive.

If your whole point is that we could tear down all of copyright law and replace it with a system that allowed IA CDL, then, sure. We could do a lot of things. I'm not really here for that argument (because there just isn't enough to nerd out about in it, not because I have any problem with the exercise).

But as for the law as has existed in the United States for the last 50-odd years, I'm reminded of the words of a young Baltimore entrepreneur, who infamously said "you want it to be one way --- but it's the other way".

> If your whole point is that we could tear down all of copyright law and replace it

No, no, not at all.

In this situation I just want to change the definition of "copy" slightly.

(And to point out that slightly different definitions of terms would make libraries illegal. There's nothing special about the current definitions. In particular they're not the most straightforward definitions at all. Again, none of this is about radical change, just looking at where small tweaks would get us.)

There is no reasonable definition of "copy" that would make the lending of a physical book a copy. The word "copy" literally exists to differentiate other actions from that action.

> There is no reasonable definition of "copy" that would make the lending of a physical book a copy.

But it could count as distribution. Copyright covers that. Library style distribution could be just as illegal as CDL style copying, by barely changing anything.

The point is that yes, digital items get treated differently by the law because using them requires "technical" copying. Moving them requires copying, using them requires copying, lending them requires copying. The law as written means that digital works will give their buyer far fewer rights than identical physical copies of the same. And yes, that's precisely why the current law is bananas, because it turns digitization into an excuse to enclose the commons. But I have no confidence in the courts to stop it, because that's not what courts do.

> because that's not what courts do

Except when it is. Laws are not computer code and it's precisely the court's job to interpret how they apply. This can include overturning previous interpretations. For examples see the recent ruckus about supreme court decisions changing what people interpreted as fundamental and accepted rights.

It is however not much a stretch to say that someone reading a book and committing it to memory is making a copy not inherently different from the "copies" being made when viewing something over the Internet. Now if you go and lend/sell a book after reading it you still retain the copy in your mind. Yet somehow that is legally fine.

The effect on authors is the same: A book is circulated multiple times after being bought once.

Are you suggesting that the law reflects an entrenched, emotional celebration of an antique, traditional notion of a library, and not something rational and consistent about lending, copyright and the economics of writing? Apostasy! I want this conversation to only be strictly about what the case law says, so that I may tell you about it “again” and again!

No, the problem is that the preceding analysis is a category error, in that it assumes the law has a purpose of minimizing the circulation of an individual book. It does not, which is why traditional libraries weren't threatened by it.

> in that it assumes the law has a purpose of minimizing the circulation of an individual book

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.

And the next step is to deprecate and stop publishing physical prints at all, which is already mostly the case with other kinds of media. Then you won't just have less rights with digital things but less rights period.

I don’t know, it doesn’t take a genius or a law degree to understand that maintaining a one to one ratio of physical copies to digitally lent books is the same shit as a regular library but more convenient. It stands to reason that the law shouldn’t preclude technological advances that make libraries more convenient. The reason traditional libraries aren’t threatened by the law is cultural. There are states that ban books my dude, it’s all cultural.

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.

It’s apparent to me that the law has jumbled a bunch of archaic concepts of what “copying” means in order to transfigure the argument into a technically obscured realm.

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.

Judges aren't anti-library. People care a lot less about "compsci" culture than "compsci" people think they do. We simply aren't that important.

> Judges aren't anti-library.

Some are now!

What does this have to do with compsci culture? Do you think only technical minded people can be interested in access to digital content?

> I wonder why judges are anti-library.

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.

That's not how the law works. Again: this is a copyright case.

I don't think people here are confused about how the law works. I think many people here feel the law shouldn't work that way.

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.

Maybe a case with a better fact pattern (for instance: lending only books without competing publisher epubs) might have had a better chance, but I think people are getting themselves tied up in knots about IA's intent, which is just one factor in a fair-use analysis. The law cares deeply about copies, not about circulation or access.

Further: it seems weird to blame judges for applying what is in fact very straightforward law. Seems like your problem is with Congress!

Fair use is not "very straightforward law", and is deliberately a fuzzy line; I do in fact think CDL should have passed a fair-use analysis. Separately I also think the law should improve.

In which part of this case were the judges required to stretch at all? The decision is conveniently broken down across the 4-part fair use test.

It seems like you're making a "what happened" argument in response to a "what should have happened" argument. It's possible to make an argument in favor of this being fair use, and it's possible to make an argument against fair use. The (subjective) decision here was the latter; it doesn't preclude the possibility of the former. I'm not arguing that it was a stretch to say "no"; I'm arguing that it also wasn't a stretch to say "yes".

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).

I don't think you can reasonably make a "the law is not as simple as you say it is" argument and shore it up with a "the law should be different" argument.

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.

I wasn't shoring one up with the other; I was making both arguments separately.

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.

>Made them available as a substitute for publisher-provided ebooks.

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"

Publisher ebooks don't have to satisfy any tests. The publishers own the copyright on the work. They can generally be as anti-consumerist as they like. That's the law.

> I don't think people here are confused about how the law works. I think many people here feel the law shouldn't work that way.

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.

“The only moral laws are my laws.”

Who is this a quote from, and who is talking about "moral laws?"

> Do you think physical libraries harm the people who bring books into being?

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.

So, lending a book to a friend is wrong? Or just doing that when your have more then x friends?

I'm genuinely not sure what you're saying here.

If I buy a hammer and then lend it to a friend, is that unfair to the hammer manufacturer?

In our disturbing legal climate, many judges would say yes.

Well what he did had some value. It showed me that somebody else in that position can share my beliefs about how the system should function.

"[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.

>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.

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).

I think you misunderstand the situation. If you haven't read the lawsuit [1] I suggest you look through it.

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-...

[2] https://www.law.cornell.edu/uscode/text/17/108

[3] https://www.law.cornell.edu/uscode/text/17/109

What you describe as lending a digital copy, is making new copies. As a matter of engineering fact, the bytes were copied from one location to another; as a matter of black-letter law, that is making a copy in the sense that it is copyright infringement to do so without a license. That IA 'controlled' it to have only one outstanding copy at a time in hands other than theirs does not make it legal. The carveout saying libraries can make three copies does not cover them making hundreds.

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.

Let's say we have a device that allows to view book pages over Internet without persistently storing it in any tangible medium (like a memory card). I.e. without "fixing" it permanently where "fixing" is defined in 17 US Code 101. And we use it to view books from a remote server. In this case it seems like we are not making a "copy"; we simply let user watch book stored on our server. So this should be legal?

As in, is it somehow different when the copy that gets transmitted to the user's computer is encoded images of the pages instead of encoded text of the pages? No. You are using the word 'view' to describe receiving a copy. Again: It doesn't matter whether the UX presents it as a copy. The data factually is copied, and that's all that matters.

The copy is something that "fixes" the work permanently. The device I am describing is not "fixing" anything in a tangible medium.

Replace Internet with a video cable, and the device with a CRT TV. No copy is produced in this case.

This is true. If the copy is only "transitory", it does not count.

That hypothetical device does not exist, it's not relevant here.

A live camera feed and IA's page turner exists. Would live streaming the feed work?

No, that's making a copy. Several copies, really, and distributing at least one of them.

How about I use a mirror and a lens and fancy fiber optics to do the same thing with no computer involved?

It does exist, it's called FPV arm robot. Drive around the library, take books from shelves, open them, turn pages, read.

Would be curious to try this because the "ebooks don't wear" argument won't apply.

There was a company that allowed customers to rent DVD players, robotically inserted disks into them and transmitted their video output over the internet.

This was ruled illegal.

The letter of the law isn't the real law; the real law is that you must pay money to large media corporations or else. We now have two instances.

That doesn't solve the fact that the robot can't do the reading for the user. It takes a picture (makes a copy of the page), then sends a copy of that data to some remote user (distributes an infringing copy).

if you wanna get into byte copying, from a legal view, isn't also copying from disk to memory a copy of the book then ?

The law says that copy is something that is "fixed" on a tangible medium. DRAM might not fall under that definition.

It does if the copy is "more than transitory". Software in RAM is a full copy and remains there as long as the program runs, so that can be an unlicensed copy per MAI v Peak (but if you had a license to the original, there's an explicit legal carveout for RAM copies). It would depend on how far the data is buffered and how long it is cached.

Yes, and that's why running an executable can technically be copyright infringement. This came up in some anticheat lawsuits.

Which is an absurd position. It's not far removed from sayng that reading something and committing it to memory is an act of copying.

> 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.

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.

> trumped the rights of authors and publishers,

the ever expanding rights that nobody voted for and that are passed by and for lobbies?

We’ve been here before: you can’t punish someone into being your consumer. Someone who wants your product at the price you offer it will ultimately pay for it. Short sighted business decisions ultimately hurt the industry more than accepting the need to change your business model.

I also have a personal gripe with the Wayback Machine; there is absolutely no way to get something removed once they archive it (despite the data including accidentally leaked PII for example - which can cause actual harm to someone).

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 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).

What form? There is no form.

I just sent emails into the void per their request for more than a year: https://help.archive.org/help/how-do-i-request-to-remove-som...

After nothing worked I had to draft an official legal letter, which also took several months to get acted on.

Not gonna define “CDL”? Ok, “Commercial Drivers License” it is.

As far as I can tell (these are all new acronyms to me too), they stand for:

CDL: Controlled Digital Lending

NEL: National Emergency Lending.

Morally justified or not, it's really hard to feel bad for someone who stuck their dick in a bear trap when when we all stood there screaming "don't stick your dick in that bear trap" so loudly blood shot from our eye sockets. The Internet Archive doesn't deserve to go down like this, and regardless of his long history of fine efforts, it doesn't deserve to be run by that God damned idiot.

You also forgot the national emergency library thing which only made his position more unworkable with current copyright law.

I agree CDL was a mistake. The IA should have never embraced DRM and shared as much without it as possible, silently archiving the rest for saner future generations that don't let so-called IP-owners restrict their free speech.

If all information wants to and should be free than how can freeing information ever be wrong?

This is an absurdly strained & non-factual summary of the history.

>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.

> hope the organization can survive

Maybe it shouldn’t. There is value in asking if there is a better home for those projects.

Maybe a European country that gives much less shit?

EU in general is not better when it comes to copyright law. Some countries (e.g. Germany) are decidedly more pro-copyright holder than the US.

Europe is not a third world country, where nobody gives a shit. It has laws and regulations like the US. Educate yourself.

I get it I do, but please can you try moderate your tone? First post I open, and I already am faced with this kind of feeling. Now my breakfast will be just that little bit more bitter.

Be kind. I think it was that dang fellow who said it. Yip here it is: https://news.ycombinator.com/newsguidelines.html

In another life I'd be clever with you and say something to the effect that you should educate your own self, and read them. And then we would have our very own little reddit subthread here for our selves, and it would be my fault, and mine alone.

> Be kind. Don't be snarky. Converse curiously; don't cross-examine. Edit out swipes.

It's a lovely thought.

It can easily have much better laws.

It can but when it comes to copyright, many EU countries are not better at all.

Right but they arent giving a shit about preserving disneys profit margin.

The Internet Archive should just relocate to a less authoritarian jurisdiction. It would solve the problem.

Which jurisdiction do you have in mind? Russia? China? There are few others that don't have similar copyright laws to the US or won't bend quickly to US demands.

Theres all that, but on the other hand, hes doing literally nothing wrong.

What is CDL?

It echos of the debacle at Mozilla. A critical nonprofit captured by an egomaniac ceo who hijacks the organization for grift or their personal crusade.

> trumped the rights of authors and publishers

Oh no, won't someone think of the rights of the poor poor publishers :(((

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He just created a really terrible 2nd Circuit precedent. He could have avoided that easily. How was this his job?

Not setting a terrible precedent is actually the judge's job.

Not so much? The judge applied the law to the facts. I don't think this is an especially controversial case, legally.

If that's what you think, then the precedent is neither terrible nor interesting.

It's bad if you want people to be able to do 1:1 lending of digitized books. It's fine if you don't care. The point is that it didn't need to happen; there was no reason to appeal the case. It was a loser to begin with.

> It's bad if you want people to be able to do 1:1 lending of digitized books.

How? By your argument, this was already clearly illegal. What did the precedent change?

The court could instead have heard a case exclusively about books that were under copyright but not available digital in any form, or one in which a library had some existing licensing arrangement that covered the usage imperfectly, which would have made both the transformation and commercial impact fair use tests more complicated. Instead, IA chose to bring this deeply unsympathetic fact pattern to the 2nd Circuit. Now, in that circuit, if some entity did have that more sympathetic fact pattern, it doesn't matter: the finding here was categorical.

I feel like this is not a very complicated point I'm making, but I'm happy to keep expanding on it.

> The court could instead have heard a case exclusively about books that were under copyright but not available digital in any form, or one in which a library had some existing licensing arrangement that covered the usage imperfectly, which would have made both the transformation and commercial impact fair use tests more complicated. Instead, IA chose to bring this deeply unsympathetic fact pattern to the 2nd Circuit. Now, in that circuit, if some entity did have that more sympathetic fact pattern, it doesn't matter: the finding here was categorical.

How do you see this as different from the claim that the judge(s) did a bad job?

If you think this ruling is just an obvious application of the law to the facts, then you'd get the same result in a different case.

Or, if you think the ruling is contingent on whether a judge approves of the conduct independently of the law, then the court is the party that screwed this up. In particular, the example you highlight, "the finding here was categorical", is completely at the judges' discretion.

(Or are you saying that this ruling is clearly correct, but you wish that the judges would have gotten confused?)

Neither. Search for "bad cases make bad law", and find a meaty post (you'll have hundreds to choose from). This is literally a textbook case of it. We are at the point where we're litigating whether that maxim means anything. I can't do better than every lawyer who has ever written about it.

Very much not a surprise. I think the Internet Archive is providing an invaluable service to humanity in preserving works that would otherwise be lost to time. it is one of the crown jewels of the Internet, doing a job that nobody else is willing to do. But at the same time I know the courts side with publishers pretty much every time and copyright law being such as it is they're totally screwed. The only real question is how many trillions dollars will the judgment be. Preserving history is at odds with the profit motive, and lawmakers care a lot more about the latter than the former.

Fully agree. With link rot being a huge problem, IA provides an invaluable frame of reference.

But, beyond this ruling, could Internet Archive just scan the books, store the data and release it to the public at a later time? I am just thinking about the preservation part in your comment.

"A later time" being the after the year 2100 for most of these works. I am not exaggerating. If the author is still alive today their works won't enter the public domain until after you are dead.

One can argue that the Internet Archive would be effectively useless if they strictly followed copyright law.

We've also got to think about the actual value of preserving all of these works in a completely indiscriminate manner. Curation is important. Even assuming, for the sake of argument, that we could keep everything forever, actually doing so would ultimately harm the value of the archive, due to Sturgeon's Law. The truth is that the vast majority of cultural output is of only ephemeral value. It's relevant to a place and a time, but not necessarily great enough to also be interesting to people from a different place and a future time.

And I've only got a little bit of time in this life; I'd much rather read a trashy romance novel that was written this year and meant to entertain me than the trashy romance with politics that make me cringe that my mom was reading 50 years ago.

This is why, for example, the Library of Congress doesn't just keep a copy of everything. It's not just a space constraints or storage costs issue; it's a signal-to-noise ratio issue. As Mark Crislip is fond of saying, when you mix apple pie and cow pie it doesn't make the cow pie better, it just makes the apple pie worse.

In the space it takes to store one movie, you can store ten thousand books.

For any published book, the answer of whether it's worth preserving that text is a very solid yes. There's not that much of it, no benefit to filtering.

And do you think future historians won't be very interested in those politics?

Text that seems a bit more significant imo, alongside the fears of AIs turning into Ouroboruses.

>The truth is that the vast majority of cultural output is of only ephemeral value. It's relevant to a place and a time, but not necessarily great enough to also be interesting to people from a different place and a future time.

On a long enough timescale, the value starts increasing again. C.f. graffiti from Pompeii, Akkadian bookkeping tablets, etc.

In the meantime, the copyright duration could be shortened.

Or, from another POV, cultural artifacts we dig out from earth millennia after they were buried still preserve something valuable. An entity like IA should think past one lifetime.

>In the meantime, the copyright duration could be shortened.

There's a better chance of you winning every lottery on Earth twice in a row than copyright terms being shortened in this century.

you don't know nearly as much about future human history as you claim to

in the last century, birth control became first legal and then almost universal, automobiles became common, britain quit india, colonialism ended in most of the world, totalitarianism was invented, an antisemitic dictator conquered a continent and wiped out many of the world's biggest jewish communities, nuclear weapons were invented, the new york times published an editorial claiming rockets wouldn't work in space, men walked on the moon, communism enveloped a third of the planet, rock stars were invented, the majority of the human population moved to cities, global warming was discovered, the ozone hole was discovered and then solved, most of europe was unified under a single government, computers were invented, turing was bullied to death by the uk government for being gay, gay marriage became legal, women got the vote in most countries, liberal democracy enveloped half the planet, alcohol was legalized in the us, most other recreational drugs were prohibited in most countries, and some other things happened too

the next century will probably be less predictable than the last one

The last 300 years have seen copyright laws being ratcheted up and up and up. I think it's a fairly safe bet to say that trend will continue for the next 75 years, even if it's not inevitable.

it does seem more likely than not, but that's many orders of magnitude away from the statement you made

I only separated the logic based on your point about preservation. I completely agree that copyright rules are often abused and modified 'a piacere.' The topic of preservation resonated with me because I do amateur research in genealogy, and, for example, if you don’t interview great-grandparents or grandparents, much of that information could become irrecoverable later.

My overall point was "are works actually preserved if they are locked away and inaccessible?" A work that technically exists, but is inaccessible until after your death is effectively lost to you.

>The only real question is how many trillions dollars will the judgment be.

Calling it now. The number will be so big that they will take ownership of IA and privately "license" that data to openai and similar.

The data is already available, and IA never "owned" it. Aren't big LLMs already trained on this data?

I agree, it can take a while for the limits on something like this are found. I would love for all books to be available there but I see the concerns (overblown) of authors and publishers however, they’re in a tough industry and it’s getting tougher. I think IA should take the L and save us from AI being the only source of information in 10 years or so. Soon most people will choose instant coffee over roasting, grinding, and brewing their own from beans. Hopefully the judge(s) will take their value and uniqueness into account and give them a small judgement with a much bigger one waiting in the wings if they ignore the decision. Maybe they can move some place safer like Russia or China and serve from there.

> But at the same time I know the courts side with publishers pretty much every time and copyright law being such as it is they're totally screwed.

I mean... they did just scan a load of in-copyright books and then let anyone download them with no restrictions. What did they think was going to happen?

I think you have to be particularly extreme and naive to think that would have been ok, legally or morally.

Sharing information is always morally OK. It's copyright itself that is a severe infringement to our right of free speech without a good enough reason to justify that.

So how do you propose compensating authors for their work? Or should they all do it for free?

This struck me as significant (buried in the opinion's last footnote):

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

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

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

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

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

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

>Copyright law tolerates lending by libraries in the case of print books because those books eventually wear out.

I don't think this is entirely accurate when it comes to copyright law. The law extends back centuries and digital books only appeared within the last couple of decades. The ability to lend a book (by libraries or any owner) without committing copyright infringement is much more closely-related to the first sale doctrine (which has been around for at least a century in U.S. law in one form or another) than it is to a book's durability or lack thereof. Recall what the opinion says about the underlying rationale for copyright law: let the authors have a period of monopoly so they'll have an incentive to keep writing. If the first sale doctrine doesn't defeat that rationale in the case of print books then the same logic should apply to digital copies; it's the first sale that matters, not how many times the owner of an individual book can then lend that book to someone else. Granted, as in your second point, publishers can limit lending of digital books through license agreements or other digital rights management, but at that point you're in the realm of contract law, not just copyright.

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

It's a footnote because it's the most inconsequential part of the ruling. The copyright infringement status of making thousands of unlicensed digital copies is not affected by whether you own a physical copy or not.

This ruling isn't about making thousands of digital copies. They're no longer able to offer even 1 digital copy.

The CDL is where they would buy N physical copies of a book, and then allow N active rentals of the digitally scanned version of that book with a waiting list for when people "return" them. Can't do that anymore.

The bytes were copied thousands of times. That means they made thousands of copies. It doesn't matter if the UX describes a concept of 'a digital copy' which requires that a new copy not be made until the old copy is deleted; copyright law does not say that this exempts you from the usual rule against making unlicensed copies. What you are thinking of, where you own 'a digital copy' of a book, is owning a license (as you have checked an 'I understand' box about a dozen times), not owning a copy. IA does not have permission to sublicense copies it legally owns (and didn't legally own the digital copies to start with, as their purposes weren't within the §108 carveout).

I still cannot imagine how IA thought that giving unrestricted access to copyrighted books was a good idea. It seemed inevitable that someone would sue them over it.

Honestly, I think that IA's ambivalence towards the use of their website for outright piracy might lead to their collapse, and that's a shame. The Archive can be a really wonderful tool, though I'm not sure that its current management really knows what they're doing.

IA was trying to act like a library: they bought physical books and lent digital scans of them, ensuring that only one user can read one book at a time. So IA's position is that you can treat digital books like physical books, i.e. re-sell them or lend. The only difference is that they don't require you to come to library in person.

Publishers position is that digital books are different from physical; you have no right to re-sell or lend it without publisher's permission. This is what this case is about.

Nobody complained when IA was lending to one user at a time.

The lawsuits started when they removed that restriction during covid.

Techincally the publisheres were already complaining before but they knew that the stakes were really unclear (there is a possibility that they lose and set a precedent against their wishes), but IA realy opened a gaping hole with the emergency lending program.

Am I to understand that it’s legal and okay for LLM providers to profit massively from training commercial models on copyrighted works, without the rights holders’ permission - but illegal, and unacceptable, for private individuals to access a digital library?

Yes, quite straightforwardly. Works may be copyrighted, but all the ideas and stylistic choices which comprise that work generally may not.

That the implications of this idea have the “wrong” winners and losers is a separate matter.

Copyright protects mainly against the distribution of works, not about consumption. It is not the access to the library the bit that is illegal here, it is illegal for that library to distribute works without the copyright holders permission. You might like it or not (I don't), but copyright laws are fairly straightforward.

Regulators were convinced LLM/AI will increase GDP by infinity, while you getting a single book for free creates a hole in VAT budget of 2$.

Things will get worse before they're get better, but ultimately the publishers will pay dearly for this.

First, the IA should move to a more favorable copyright jurisdiction to preserve the collection.

Second, there's no point fighting the copyright lobby, especially so in the US. We need to build an alternative access to knowledge that bypasses the copyright/ownership of knowledge paradigm.

I'm starting to think this is the case, but the US is a country that enforces its version of copyright with gunboats. Not an easy task to simply find another jurisdiction.

"US …copyright with gunboats."

Right, that's why it will get worse. Unfortunately, we're still only in skirmish territory. And it's a battle we have to win.

I think about time for a third opium war. China is manipulating currency through trade restrictions, and the West wants to sell them poison, maybe it's time to sail a carrier group up the Pearl River!

The battle that needs to be won is with greedy publishers who don't respect either creators or content consumers.

The copyright/patents issue with China is only part of a much bigger political issue. Gunboat diplomacy isn't the solution, history has shown it's made things worse—China hasn't forgotten the Opium Wars.

> the IA should move to a more favorable copyright jurisdiction

Ask the team at The Pirate Bay or Kim Dotcom how that worked out for them.

The US WILL pursue it's copyright laws to any country on earth.

It's hardly been successful with China (but I'm not advocating it as a solution).

That's because Chinese copyright infringement is mostly internal. You don't see sites protected by China distributing copyrighted content to the rest of the world.

Smart move, that's necessary lip service to IP treaties. One can extrapolate however, just about every device or widget I buy these days is made in China. What's noticeable is that many, many of them are identical to items that were once produced in the US, UK or Europe (I'm old enough to remember many of those original Western-made products).

Presumably, these items can now flood Western and other markets because they're out of patent and or the original manufacturer has gone bust, not so copyright/IP due to its long expiry date.

It will to the extent that it is able.

Like for instance, Australia's project Gutenberg tends to get things a few years before the US version because of local legal differences.

That difference is due to the grandfathering of the old 50-year rule for existing works when the Howard Government brought in the 70-year rule.

How about we feed an "AI" with it, like MS does with licensed code? Then we can host that AI and let people use that, without having it output where some text is from, just like MS does for code.

Right. Just let OpenAI do it. Then it’s allowed. And internally, let the “model” be a 7zip compression algo. Just call it an “LLM”. Courts won’t know the difference. Haha

"Courts won’t know the difference."

Whether or not I'd suggest that if AI makes reverse-engineering easy (and I see no reason why it won't) then users will use it on an individual basis. Detecting the myriads of breaches would be a nightmare for any law/courts system. Ultimately, the paradigm will have to change.

We could also abolish copyrights for software in general and for everyone, including the tech giants.

We could, but is that the best alternative?

Despite everything I've said here until now I'm not against creators receiving fair recompense for their efforts. What I'm against is the enormous inequity in copyright law which seriously disadvantages consumers. I believe it is not in the best economic or strategic interests of the nation for such inequity to exist—in fact, I reckon it's very damaging.

Solving the copyright problem won't be easy because it has its roots in a much bigger issue—that of social inequity and inequality.

> We could, but is that the best alternative?

Yes, absolutely. Insiting on business models that depend on scarcity when that scarcity doesn't actually exist is absurd and the costs to society are astronomical.

> Despite everything I've said here until now I'm not against creators receiving fair recompense for their efforts.

No copyright doesn't mean no copensation, it just means that compensation cannot be enforced on a per-copy basis. Creative works, including for-profit creations, have existed long before copyright.

But let's also not pretend that creators receive fair compensation today.

Right. Then there's the issue of compiled code which is the elephant in the room, as ultimately AI will be able to decompile code with ease. If it cannot, say through encryption, then AI will be able to emulate it.

If I can think this then I'd reckon I'm not alone, the thought must be high on the agenda for MS and like.

The implications are enormous.

It's time to move from tokenisation to training on full range of byte as input then

>We need to build an alternative access to knowledge that bypasses the copyright/ownership of knowledge paradigm.

That's what shadow libraries are doing, as are many other older & less prominent models of information distribution. These projects should be proliferated & promoted to challenge the dominant propaganda that people can only do things the U.S. government says they can.

> First, the IA should move to a more favorable copyright jurisdiction to preserve the collection.

Which jurisdiction do you have in mind? Russia? China? There are few others that don't have similar copyright laws to the US or won't bend quickly to US demands.

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If I can relate this to movies [1], it might be illuminating:

Watching a movie, you normally get a "home viewing" license. That does not give you the right to show it at your business (even if you don't charge money and only 10 people come).

There's also a Public Performance Rights (PPR) license, and I always had to get PPR's because Google lawyers would shut us down otherwise. PPR costs considerably more than a home viewing license.

When I negotiated PPR's, they always asked three questions:

1. How many in the audience?

2. Are you charging money?

3. Are you advertising this outside Google?

If I were a movie theater taking $15 a head from anyone who showed up, my PPR would cost a lot more.

It seems that what IA wants is to use home viewing rights as though they had PPR's.

"No, they don't!" you retort? You might be right, but asking AG to design a license for them would be a lot more friendly than saying, "Hey, this is fair to you, take it!"

Edit: one thing I forgot to add: lawyers always prefer to start with their own draft. We can hypothesize a conversation between IA and AG (which never actually happened):

[IA] Hey, can we use your books? Write us a new agreement.

[AG] OK, that'll take a few months for a first draft. Then we'll negotiate.

[IA] OMG, we don't have all that time.

[AG] Okey-dokey, we'll see you in court.

[1] https://albertcory50.substack.com/p/culture-at-google-part-o...

there is no such thing as a 'home viewing license'; you don't know the basics of us copyright law, despite having negotiated public performance rights licenses. you need a license from the copyright holder (or a fair use defense) when, and only when, you are doing one of the things reserved to the copyright holder under 17 usc §106 https://www.law.cornell.edu/uscode/text/17/106. specifically, 17 usc §106(4) is public performance. 17 usc §106(3) is distribution to the public, which is what the ia was doing

no sort of viewing, home or otherwise, is restricted in any way by the copyright law. you will not find the phrase 'home viewing license' in any us case law about copyright. ('residential viewing license' does occur in cases about 47 usc §605, which is not a copyright law.) you just made it up without having any idea what you're talking about. you should not mislead people about your expertise in that way; it is a bad thing to do

The good part about it was that caused you to comment as well and the information you provided was very enlightening.

thanks :-)

That’s an unnecessarily pedantic comment. The US copyright act gives the copyright owner exclusive rights regarding public performance and it also defines where public starts. Sure, there is no license for home viewing but that’s not really changing anything about the point that OP was making.

it does, because they were adducing a cause of action that doesn't exist in either statute or caselaw. nor was it asserted by the plaintiffs, because that would have gotten their case summarily dismissed. moreover, to believe that it existed, you would have to have a comprehensively incorrect understanding of the legislative and political history of us copyright law. anyone who wants to understand any of the arguments or decisions in the case needs to understand what cause of action is actually being asserted and what the possible alternatives were. reading misleading comments about imaginary legal theories the author just made up makes that more difficult

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You both put 'home viewing' in quotes. Clearly you both know that's not actually a thing so this part: "you don't know the basics of us copyright law" is uncalled for.

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> Supposedly an employee once filed a ticket saying “please put a pony in my office.” (He didn’t get one, in case you’re wondering, although one hears conflicting stories on this.)

benley did get a pony for a day though had to provide his own fodder. There's a photo of him and Vint Cerf with the pony floating around.

https://storage.courtlistener.com/recap/gov.uscourts.ca2.609...

On one hand: the court opinion. On the other, a breaking news tweet from Publisher's Weekly with hundreds of tedious low effort takes ready to melt precious brain cells. Please read the opinion.

Reading and understanding the opinion is the way for this one, for a simple reason as I understand it. The judges get to basically make up an opinion about the matter, which could be anything. And they can support basically any opinion using whatever they want, and it can be made to sound ok.

The whole point is that the judges are forming a judgement. It's, like, their opinion on the matter. The judges don't have to find out mathematically what the law says. They're making (case) law, by making an opinion, based on how they feel about it all, trying to be well-informed on the matter and its background, but really just putting down their feeling on it. Here's the most essential thing they wrote IMO:

From Page 2: """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."""

They justify it in a series of points. We can disagree with the points all we want, like whether or not it is transformative, or commercial, or all the other things. But at the end of the day, these judges said, nah, we're going to say that we don't think this is fair.

I mean, I can see their point. But this would have been a chance for them to see the point in what the IA was doing and to say, "oh, you know what, that is actually fair in our view". Only, they didn't, it looks like.

I guess the next step is to see if the Supreme Court is interested in weighing in on the topic.

It is ultimately judgment calls by human beings that make the determinations. However, I don't see how you can read this opinion and think that the judges are just making their minds up on the spot. Every single decision point in this opinion goes back to prior cases and either explains why they apply or distinguishes this case from them to explain why they don't.

- It's not like Campbell/Rose-Acuff (2 Live Crew v Roy Orbison, the "Pretty Woman" case) because IA's ebooks are not parodies of the original works. They _are_ the original works.

- It's not like Sony (the Betamax case in which whole-work copying was found fair because it enabled time-shifting), because there's no sufficiently different use that's not supported by the original copy. You read the book, you read the IA scanned copy.

Courts have judgment, but within parameters. The Copyright Act itself spells out four factors for evaluating whether a use is fair, and both courts found that it failed on every factor. The judge can't say, "well, but I still believe that the use should be fair anyway"; that would be an instant reversal and remand, with instructions amounting to "follow what the law says, dummy."

This was never really a close call based on prior cases. Transformative use has almost never been "exactly the same work used exactly the same way, but digital." Cases that have tried to make that argument have failed again and again. The "our enforcement ensures that only one person is using the copy at a time" has been tried before as well, and has consistently failed. Back in 2020, my heart sank when I saw IA's announcement that they were doing this, because I was certain that they would be sued for it, and that they would lose if they were. I can't stress enough how obvious these rulings have been if you expect the courts to do what they ordinarily do-- find similarly in similar cases.

The Supreme Court can discard all that precedent - they've certainly made a habit of that lately - and create new case law, along with an explanation of the way that they evaluate the factors to find that way. They may in fact do so; they've done that a couple of times in recent decades. However, they don't take many cases, and this case is so clearly in line with past cases that it's hard to see why they would take this one.

>In sum, IA has not met its "burden of proving that the secondary use does not compete in the relevant market"

How does this same thing not apply to physical libraries then? Even if the scope were limited to books IA itself owns (which they still denied anyways), why should one-to-one digital lending be any different than physical in-person library book lending?

The physical object can be passed around without copyright coming into play. Copyright law has special provision for interlibrary loan, and archival copies.

There is nothing in the law that supports making a digital copy and and using technical safeguards to transfer it to exactly one person at a time - except licensing under the exclusive rights of the rightsholder.

Congress could write something into the law to support this kind of digital lending. However, Congress has been largely unable to accomplish anything interesting or innovative for a long time now, outside of a couple of flagship goals for one party or the other. Copyright law hasn't seen a substantial revision since the Act of '75, and ... a few ... things have happened since then. [DMCA added some new provisions for anti-circumvention and for safe harbor, but it didn't add new exemptions that most people care about, or modify the exclusive rights in any way.]

The entertainment/publishing industries have usually gotten what they want in past revisions, but by now the tech industry is pretty strongly on the opposite side. It would be interesting to see what kind of crazy-quilt changes got patched together in a significant revision.

The rule that allows libraries to work is first-sale doctrine: once you bought a physical book you may re-sell or lend it without permission from copyright owner [1].

However you cannot do this with digital books because DRM doesn't allow that. So IA invented scanning physical books (that are legally bought and not circulated after this) as a countermeasure to allow lending digital books the same way as physical.

So do you side with the publishers who believe that "first-sale doctrine" should not apply to digital books?

Here is a quote from Article 109:

> Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

> (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title ... is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.

This allows library to "dispose" the posession of the book as I understand. So why this should not be applied to digital copies?

[1] https://www.law.cornell.edu/uscode/text/17/109

I'm not sure what you meant by the quote talking about the right to display the copy - again, a material object - publicly. A used book store or record store is allowed to show the book or record for sale. It's not allowed to, say, play the record for a party - that's the performance right - or make a movie out of the book. It's allowed to display the physical object.

It's not totally clear to me that those are different. For example, if you have a painting or some other flat, static creative work, then public "display" and "performance" are the same. You don't need a positive law to say you can show people a DVD box. Additionally, some works are unique or at least not commodities like a Shrek DVD, in this case how can you let the buyer know what they're buying without letting them watch the DVD or open the book?

There's the questions of whether first sale _should_ apply to digital works in the same way it does to physical works, and whether it _does_ apply to physical works under current law.

I'm teetering at the top of a very tall fence on the _should_ question.

Publishers have always been opposed to digital first sale for a very simple reason: fear that their prices will go to zero. Used physical books prices are pennies on the dollar for new book prices, on the basis of the condition/deterioration issue. The quality/condition issue doesn't exist for digital works. If Amazon could offer "used" digital copies of publisher e-books, the customer would be choosing between identical binaries at 10-1 price ratios _at best_. I really don't see any other way that this goes. Sure, capitalism isn't for the weak, yadda yadda, new models, but how's it going to work. Amazon's Kindle Unlimited is an alternate model, but Amazon already has enormous control over publisher fortunes. "Should the current publishers exist" is a really interesting question. I'm just not sure I want to find out by handing all compensated book publishing to Amazon.

So why am I on the fence? Well, I have paid for 2000+ ebooks. I wouldn't mind being able to transfer them to my children without limitation, or to friends. If there were a resale mechanism no more disruptive than used paper books, I would probably have sold some of them already. It's not that I don't appreciate the value or convenience of resale, but that I consider the side effects.

The second question is, "Does current law support digital first sale?" First off, I am not a lawyer, and I'm not giving legal advice. However, the words of the law are pretty damn clear, to be honest, that it does not. You found section 109, which is correct, but you're relying on the colloquial meaning of the word "copy." You need to look up the words "copy" and "phonorecord" in the definitions, section 101, so that you can see that in this law both words refer to _material objects_ in which a work is fixed.

A paper book is a material object. You can sell the book. The buyer owns the physical book - the stack of paper and binding - and can read it.

A CD or DVD is a material object. You can sell the flashy mirror thing. The buyer owns the flashy mirror thing and can listen to the album or play the movie.

An ebook is just not a material object. In most cases, they are not with a single physical object, but licensed as downloads according to fairly restrictive terms. If you have a physical object with a duly licensed ebook on it, you're probably allowed to sell that physical object (unless it's a Cybertruck, I guess.) However, the license on that download is still going to be what controls. Your Kindle has Kindle software tied to your Amazon account that allows you to read the books you've bought, and I'm really pretty certain you can't sell your Amazon account and all your individual access rights.

Various entrepreneurs have tried to convince courts that some variant of "one-copy-at-a-time" digital first sale tech fits under 109, and courts look for the material object and note that it is not there.

So, anyway, the law is not written so that ingenious digital technology that ensures that a digital copy is only possessed by one person at time can fall under first sale. It's written so that physical objects that contain or embody copyright-protected works can be sold.

Interesting note. Indeed, copy is defined as a material object where the work is "fixed". It looks like it was made intentionally to not let buyers re-sell electronic files.

But there is also a definition of "fixed":

> A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

And definition of "display":

> To “display” a work means to show a copy of it ...

So does it mean that if we have, let's say, a hard drive with legally obtained ebook (a copy fixed in a tangible medium), and somehow transmit the book (show it to somebody) over the Internet from it without "fixing" (permanently storing) then it doesn't fall under "making a copy" or "display" and is perfectly legal? And maybe we can stream music the same way?

I am not a lawyer of course just curious.

So would it be ok if I stored my ebook on a CD, or printed it? What of I was printing from an online source? I don't think a "material" distinction can be made here between the medium and the message.

Ok I didn't think about the fact that a digital scan of a book is technically a copy. So I guess there isn't a good established law on how to handle that, you're right. I was wondering why in the ruling they were even referring to the scanned books as a copy and it just wasn't clicking in my head. Thanks

There is law - its in the carveout and printed above the copiers in a library that stems from https://www.law.cornell.edu/uscode/text/17/108

> The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee—

> is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or

> engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.

...

> (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.

> (2) No reproduction, distribution, display, or performance is authorized under this subsection if—

> (A) the work is subject to normal commercial exploitation;

> (B) a copy or phonorecord of the work can be obtained at a reasonable price; or

> (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.

---

I believe that the covering of scanned / copied materials by a library are fairly well covered, and that Internet Achieve stepped clearly beyond that definition.

Physical book lending doesn't involve making copies at all, so copyright law doesn't apply.

That said, some libraries do lend scans of materials and libraries copying materials on microfilm has been done for ages. Interlibrary loans are done frequently with copies. Hell, the Library of Congress does it.

I'm not sure I see the problem with one-to-one digital lending modulo the possibility of the reader potentially making copies for essentially free. However, there's a ton of legal precedent for lending out purchased physical copies of things. Certainly there's no precedent for the unlimited lending that triggered the current legal woes. Previously a lot of what the IA didn't really have a legal foundation but mostly slid under the radar because it generally seemed reasonable.

Because (at least under current law) that's not quite the same as what libraries are doing as explained here: https://news.ycombinator.com/item?id=41448376

I still don't see the difference with one-to-one lending vs physical libraries as long as the archive owns the books.

[flagged]

Internet Archive response blog post: https://blog.archive.org/2024/09/04/internet-archive-respond...

I love IA but I won't sign their petition. If I wrote a book and it is freely distributed by IA I would be pissed too. There is no argument here.

> 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.

When the conclusion is so obviously incorrect, we should examine the underlying precedent that leads us to such an erroneous conclusion. This precedent should give us pause. They're restricting a NONPROFITs to distribute legally purchased print media in a way that the publishers don't want.

And this seems to be the justification:

> In addition to selling traditional print books, Publishers collectively invest millions of dollars in developing new formats and markets suited for the digital age, including the eBook market.

> Here, by contrast, IA’s Free Digital Library offers few efficiencies beyond those already offered by Publishers’ own eBooks. IA argues that its use is more efficient because it “replace[s] the burdens of physical transportation with the benefits of digital technology,” but this ignores the fact that IA’s digital books compete directly with Publishers’ eBooks―works derivative of the original print books.

This is an assault on free-use, libraries, and collective sharing of knowledge. If I buy a physical book, I can give it to anyone I want because the laws of yore did not see societal benefit to prohibiting this. I'm quite certain that these companies would prohibit the practice, if they could. The law is the only thing protecting the commons.

The argument here is essentially, "these companies are spending millions to distribute their IP digitally, so we should shield them from Open standards that would negatively impact their profits". "Your work isn't transformative, because we've already done a similar transformation". They're wielding a proprietary implementation as a hammer to crush open knowledge. The internet should be a tool to facilitate knowledge-sharing for the betterment of our entire species, not a weapon to stifle knowledge for the sake of corporate profits.

We should do a Rome thing, rework the legal code at this point, now that we have the internet. Copyright needs to be abolished or radically altered.

Illegal archiving seems to be the only way forward, for example making a personal archive you can share with family and friends, and supporting bigger efforts like library genesis and anna's archive are the only way we can ensure that stuff actually is still available in a 100 years. fuck the copyright lobby.

> When the conclusion is so obviously incorrect, we should examine the underlying precedent that leads us to such an erroneous conclusion. This precedent should give us pause. They're restricting a NONPROFITs to distribute legally purchased print media in a way that the publishers don't want.

This is nonsense. They are not distributing "legally purchased print media", they are VERY literally distributing digital copies of the original legally purchased print media.

This is because you cannot buy and then lend an e-book. You can do it with a physical book but you cannot with a digital book due to DRM. IA was trying to work around this and failed. As a result, buyers of digital books cannot enjoy the same rights the buyers of physical books have; it means people have less rights now.

You do not get to break the law just because you are working around some sort of restriction. The law says what it says and the judge is correct that IA violated it.

c.f. https://ifixit.com/News/54317/section-1201-exemptions-for-20...

Different laws may be in conflict, and you have to resolve it one way or the other. For example if copyright law would prevent you from repairing your device (like you need to put a coprighted image of an Xbox logo on your hard disk for it to be recognised) then your repair right may trump the distribution rights of the copyright owner.

Copyright law is also already an infringement of your right to free speech and the constitution only allows coypright and similar restrictions under very limited conditions, which can be argued are not respected by current copyright laws.

Your link isn't a judgment about the law. It is the copyright office inventing an exception to the law, as the law explicitly permits it to do, and as it does conservatively and rarely. This did not happen for CDL. There's no conflict here. There is plain comprehensible law and IA plainly and comprehensibly violated it. They could have waited for an exception from the copyright office. They did not. Although none would have come.

I hope this doesn't bankrupt the Internet Archive (either the legal fees or the case - I don't recall what they're asking for). It would be bad if the Wayback Machine, the biggest internet archivist around, went under, and also all the books, software, et cetera that the Archive hosts. I wonder if there's any way to archive all of the Wayback Machine (82.3 petabytes), or, better yet, all of the Internet Archive (which is, by my count, around 120 petabytes?) Who would have the capability/interest in doing so, ideally without charge?

Shutting down IA altogether seems unlikely at this point (even if legal fees are substantial). They've written before about what the decision means (this appellate court affirmed what the district court did last year) and it doesn't touch things like the Wayback Machine: https://blog.archive.org/2023/08/17/what-the-hachette-v-inte...

Keep a close eye on the inevitable lawsuits that they're going to be up against. Obviously the music publishers are currently trying to kill the Great 78 Project and I expect other industries to pounce. (Especially the gaming and media industries). I can't see the Internet Archive exist in 2-5 years and we need to prepare for the worst case scenario. https://old.reddit.com/r/DataHoarder/comments/1bswhdj/if_the...

Discussion: https://news.ycombinator.com/item?id=39908676

Projects such as Anna's Archive are going to be much more critical than ever.

> Projects such as Anna's Archive are going to be much more critical than ever.

I look forward to all the new AA mirrors + contributions that are going to come from disgruntled archivists.

And everybody in the libraries/archives space going on downloading sprees. Most of us have personal illegal libraries. We just don't share them.

For wayback machine, are those compressed, deduplicated numbers? A semi-popular domain can have millions of results on their CDX api, but with https/https duplicated and about 90% of results are error pages or pages with deliberate garbage / LFI attempts in them.

Deduplication is not trivial. Each scrape is stored in a WARC archive, so you would have to unpack several large files, dedupe, and then pack them back up again. I believe they are at least compressed within each snapshot though.

Yes, that seems to be a silly way to go about it if your goal is to store the whole web and not just a single scrape. Of course anything that deduplicates data is more vulnerable to data corruption (or at least corruption can have wider consequences) so it's not a trivial problem but you'd think deduplicating identical resources would be something added the first time they came close to their storage limits.

We need to archive the archive.

Key findings and implications:

1. The court rejected IA's fair use defense, finding that its digital lending practices merely substitute for and do not transform the original copyrighted works.

2. IA's activities are likely to cause significant market harm to publishers' e-book and digital licensing businesses, which outweighs any public benefits of expanded access.

3. Allowing widespread unauthorized digital copying and distribution, even by a nonprofit, would undermine the fundamental purpose of copyright law to incentivize creative expression.

4. The ruling highlights the tension between expanding public access to knowledge and preserving authors' and publishers' exclusive rights over their works, which copyright law is meant to balance.

5. The decision sets an important precedent limiting the ability of digital libraries and archives to widely distribute copyrighted works online without permission, even if the intent is to increase public access.

-Kagi Sum

Awful news.

Seems like this is the publishers planned approach going forward, nonstop lawsuits to henpeck the IA to death.

Yep. Not just publishers, almost every copyright holder.

From five months ago, still relevant: https://old.reddit.com/r/DataHoarder/comments/1bswhdj/if_the...

Discussion: https://news.ycombinator.com/item?id=39908676

Why not going the sci hub route?

It would be nice to have an archive with the blessing of our overlords, but I guess true preservation of data can only happen in illegality.

I don't think this took much henpecking. IA basically didn't have a case, took it to federal court, appealed it, and won themselves the following 2nd Circuit precedent:

"[I]s 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"

This may be a broad setback to all controlled digital lending. As the saying goes, "play stupid games...".

>This may be a broad setback to all controlled digital lending. As the saying goes, "play stupid games...".

When I made this criticism before of IA, I was told that that was ridiculous since the publishers had it out for IA before the COVID-19 emergency library. That may or may not have been true, but the publishers did not sue IA despite OpenLibrary existing for years before COVID-19. Publishers didn't pull the trigger because they were afraid of losing. It was a MAD situation, and IA unnecessarily triggered a nuclear war that they lost.

How do AI startups get away with copyright violations? To train AI model they need to download copyrighted works (images, videos, music) into their AI cloud, thus creating a "copy" under US Copyright law. Isn't this outright illegal?

There are even datasets, collections of URLs like "common crawl". You cannot legally download them and use without breaking the law.

They cannot get away with "fair use" because they are harming creators income by making generative AI using their works.

But as there are big money I guess the government will make some exception for them.

This is still an open matter of law.

The core issue is the transformative test in fair use. Is the model sufficiently transformative?

The question of what, if any, impact OpenAI has on the copyright holder's income is yet to be demonstrated in court.

So far, the lawsuits launched by the authors haven't gotten very far. https://www.theguardian.com/books/2024/feb/14/two-openai-boo... https://casetext.com/case/tremblay-v-openai-inc-6

> However, the UCL claim does not lack factual allegations; it lacks a tenable legal theory. See Brown v. Van s Int'l Foods, Inc., No. 22-CV-00001-WHO, 2022 WL 1471454, at *6 (N.D. Cal. May 10, 2022) (“As the defect lies in the legal theory, not the factual allegations, the dismissal is without leave to amend.”). The Court dismisses the UCL claim without leave to amend as amendment would be futile.

> Tremblay v. OpenAI, Inc., 23-cv-03223-AMO, 5 (N.D. Cal. Jul. 30, 2024)

This is only partially dismissed - the unfair competition claim is still open and hasn't been ruled on and is still active and ongoing - https://www.courtlistener.com/docket/67538258/tremblay-v-ope...

But when they download images, music or videos from Internet they are making non-transformative copy.

I would suggest you argue with the judge that downloading something is making a non-transformative copy of the material.

I believe that, however, is irrelevant to the transformative nature of the end product - the model itself.

I would also encourage you tread Perfect 10 v Google and the appeal ( https://arstechnica.com/tech-policy/2007/05/google-v-perfect... https://www.eff.org/cases/perfect-10-v-google https://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com.... )

From Wikipedia:

> The Ninth Circuit did, however, overturn the district court's decision that Google's thumbnail images were unauthorized and infringing copies of Perfect 10's original images. Google's claimed that these images constituted fair use, and the circuit court agreed. This was because they were "highly transformative." The court did not define what size a thumbnail should be but the examples the court cited was only 3% of the size of the original images. Most other major sites use a size not longer than 150 pixels on the long side. Specifically, the court ruled that Google transformed the images from a use of entertainment and artistic expression to one of retrieving information, citing the precedent Kelly v. Arriba Soft Corporation. The court reached this conclusion despite the fact that Perfect 10 was attempting to market thumbnail images for cell phones, with the court quipping that the "potential harm to Perfect 10's market remains hypothetical."

> The court pointed out that Google made available to the public the new and highly beneficial function of "improving access to [pictorial] information on the Internet." This had the effect of recognizing that "search engine technology provides an astoundingly valuable public benefit, which should not be jeopardized just because it might be used in a way that could affect somebody's sales.

If resizing an image to a fraction of the size of the original is sufficiently transformative and useful for a different thing (image search rather than selling thumbnails for cellphone porn) is considered fair use, then direct parallels could be drawn from that ruling to OpenAI's use of copyrighted material being sufficiently transformative and irrespective of someone selling summaries of a copyrighted work.

---

If you believe that OpenAI and other LLMs are infringing and not covered by fair use, it would be helpful if you could write a bit on how they fail at the four tests of fair use described in https://fairuse.stanford.edu/overview/fair-use/four-factors/

The common belief is that copyright covers redistribution, not literal copying. Otherwise, computers and the Internet would not work.

Because they are not distributing the work, which is how the law currently works. And in case you’re not aware, there are many lawsuits filed that suppose this exact claim: that models are not transformative and are thus breaking copyright law.

It doesn't matter; before training they download the content for training from Internet and thus make a "copy" which might be illegal.