Internet Archive responds: Why we released the National Emergency Library

Summary from Wikipedia: https://en.wikipedia.org/wiki/Controlled_digital_lending

> Opponents of CDL argue that CDL is not like lending, which does not require copying, and dispute the claim that only one copy at a time is available for reading. Opponents say that CDL involves first making an unauthorized digital copy of a printed edition of a work, and then making an additional unauthorized digital copy for each "borrower". Opponents also argue that unencrypted digital copies are distributed for viewing in a Web browser, and that these copies can be retained, viewed, or printed from the browser cache even after the e-book is marked as "returned" and is available for "lending" to other readers.

This is based on the vague notion of "creative work" in copyright.

Before the digital age, there was only a close 1:1 relationship between the ephemeral/conceptual creative work and physical copies of that work. Authors - and more specifically publishers - held exclusive control over the latter since the act of copying and distribution was prohibitively expensive.

The game changer in digital technology is that it democratized creating and distributing copies. Not just that, digital technology has blurred the definition of a "physical carrier" as a creative work can be represented as set of constituent bitstreams on a disk but also as pixels or audio on a screen/speakers. The creative work itself is re-generated/re-constructed through digital devices each time it is consumed.

Copyright still applies, the ephemeral conceptual work as was original intended by the author is still protected. But it's become very difficult to apply that protection to equally ephemeral representations in the digital realm.

The hard problem then is that copyright doesn't make a distinction between "physical copy", "digital copy" and the ephemeral "creative work" as an abstract idea or concept which was originally conceived by the author.

This leaves an huge void for interpretations. And so, both the Internet Archive as well as the Authors Guild can make sound legal arguments.

You'll find the "copyright is broken" cry on both sides of the aisle. But I don't think that rings entirely true either. There are enough provisions for publishers and authors to authorize or take down published copies online. The Internet Archive in particular even openly allows for that through their digital front office. The bigger question remains how the digital era shapes publishing and lending business models.

Who says there's been a 'near total global failure to deal' with this pandemic? We're dealing with it right now, and countries around the world are taking drastic steps and decisive action. Perhaps we weren't as prepared as we should've been and I think that case can readily be made, but to think that because you can't explain our lack of preparation, it must mean that this virus and the resulting fallout were 'deserved' or 'necessary' seems pretty cold-hearted in light of all the people affected by this who already were struggling from paycheck to paycheck, just trying to get by and possibly improve their standing in life.

The same people will be in charge on the other side. They will admit no responsibility for making our societies this fragile in the first place and blame all ills on unforeseen externalities. Rinse and repeat.

Snark aside, how is this any different than going to your local library and feeding quarters to the photocopier? Scale?

Not only that - if this goes to court, there's a really good chance that the concept of Controlled Digital Lending (i.e., libraries lending out scans backed one-to-one by physical books, which many libraries including Internet Archive have been doing for a long time before this) ends up in court too, and a judge says, what the Internet Archive did is illegal because the whole idea of Controlled Digital Lending was never legal in the first place.

I think it's foolish to trust that the courts (especially the courts today) are going to be sympathetic to fair use and to narrowing copyright.

Yes, you're right. Let's do this.

This is more or less what governments are supposed to do in the time of trouble like these: make sure that people who lost the means of supporting themselves at no fault of their own don't starve and are not left in the streets en masse. If that implies giving them free food and free shelter, then it should be done. If your government leaves people to die of hunger in the streets instead - you have a really shitty government, please get a new one.

Heck, even the most right-wing governments, like the US one, are distributing free money (which converts into free food) right now.

Seriously, if you think that letting people read an out-of-print book or two for free while quarantined is somehow bad or immoral, I think you should recalibrate your world views.

I might sound radical here, so feedback is welcome. But this reads to me like anti-free-market: Invent a product, sell product with protections to limit theft of the idea, market evolves and the product and derivatives stop being profitable, no active market for product but protections continue... There's a logic break in the logistics there.

Maybe some protections allow them to transform the original product for a current market, but if that does nothing about the market for the original product, unauthorized distribution is immaterial to the holder. They can't lose revenue on a product they weren't exercising due diligence to earn revenue on at that time.

They will claim that they are lending out copies of books locked up in other libraries. And there are librarians from said libraries willing to testify that they have agreed to allow this. They have ceased tracking inventory because getting a detailed inventory under current conditions is challenging. But they believe that the number of copies that they have available exceeds the number that will get lent.

If challenged, they will have the number of book X lent out on file. As long as they can find more libraries willing to say "We authorize them to lend the copy we can't lend physically because of quarantine" than they lent copies, this argument has a shot.

I wonder if the wheels are already coming off. Otherwise it seems a bit excessive for IA to suddenly bet the whole house on this.

I used to be fairly blasé about pirating software, justifying it with the belief that the prices were just too high. I came to believe that was really a pretty weak justification. I went through a somewhat similar change of belief later when it came to video; it's easy to talk yourself into the belief that copying TV shows and movies for free is somehow a strike against big corporations, but unless you're up for entirely reinventing the way our economy works, at the end of the day somebody really does have to pay for those shows and movies to be created, and pirating them is essentially declaring "I want to enjoy this work, I just want somebody else to pay for me doing so."

But:

There are cases where you might want to give your money to a creator or publisher and you literally can't. Up until a few years ago, no amount of money would have been able to get you the whole series of WKRP in Cincinnati on DVD, especially with the original music, for instance. The soundtrack for The Last Unicorn was never released on CD anywhere but Germany, as far as I can tell, and it's become a rare, expensive collector's item. There are hundreds of TV shows like this, thousands of movies, thousands of records, thousands of novels, thousands of programs -- and I'm probably vastly underestimating each of those categories. Their analog releases, if they were ever made, are long out of print and they were never officially released digitally.

And, I'll admit, in those cases I'm perfectly okay with piracy. The rights holder either can't or won't release it, and you can't get it legally. One can argue in such a case you'd have a moral obligation to buy an official release if and when it's made, perhaps, but that may never happen.

If what

But that’s just not realistic, is it? There are schemes that approximate this, using price discrimination. Libraries are among them, allowing people to read works for free or nearly free by investing the time and/or inconvenience. The staggered release of expensive hard-bound and cheaper paperback editions serve the same purpose.

No, it makes no difference at all as far as I can tell, except in the probably irrelevant sense that my dislike of justifying my piracy might have some small influence upon others.

I made my initial comment mainly because I wished to explore the question of how much anti-copyright rhetoric is actually based on selfish ulterior motives rather than on principled ideology.

This raises an even more important point: what do citizens do when laws are enacted that do not have acceptance or are not considered as legitimate by a majority of citizens?

This is why enacting treaties such as the Berne Conventions (WIPO etc) are so damned dangerous. By their intrinsic nature, it's quite possible for small non-representative groups to have an international treaty enacted/agreed to by all 'member' states without all states even knowing the full ramifications of the said treaty are—they're forced to sign for some other 'quid pro quo' or special trade-off deal etc. Let's face it, this is how Victor Hugo and his cronies 'won' the copyright war (one must concede they played a masterful game and won outright).

As their champions know full well, once a treaty such as the Berne Convention is up and running then it is almost impossible to change it let alone have it abolished. Savvy operators such as Victor Hugo knew this from the very beginning before even entering the campaign (as that's how international politics works). This is especially the case when treaties are about matters that are not considered truly high stakes such as nuclear disarmament.

It depends on one's political stance how one views treaties that have little or no legitimacy among a majority of citizens. Some would argue that they are technically lawful and should be obeyed, others would say they're morally corrupt and thus should be disobeyed or ignored.

It's this dichotomy that's at the center of Copyright Law/Treaties today. The very fact that the 'Big Boys' consider this treaty little more than a nuisance—just noise in the grand scheme of things—is why disputes over Copyright won't end anytime soon.

The fact that such flaky and unrepresentative international treaties can exist says more about the unhealthy state of the laws in each member state. In recent decades we've all witnessed citizens' growing disrespect for institutions such as democracy and its democratic processes. It doesn't take much imagination to realize that all these problems are interrelated.

When systems of law break down or lose their legitimacy what does one do? Again, this depends on one's politics and worldview. At one end there's disorder and anarchy, at the other one becomes subservient to a corrupt state.

Take your choice. What I know is that I certainly don't want anarchy or revolution as many people die and in the long run they end up benefiting no one. Nor do I want to be subservient to law that's been 'legitimized' by corrupt non-repetitiveness processes.

The most important reason authors should be fine with libraries lending out "their" (the authors') books for free is that libraries lend out their (the library's) books for free.

You do, mostly. I believe it's just the USA where obligatory "tipping" is a thing. I learnt a bit about the history of tipping from Adam Ruins Everything S01E05 Adam Ruins Restaurants, highly recommended.

Excerpt about tipping, <4mins: https://www.youtube.com/watch?v=q_vivC7c_1k

(Yes, his style is a lil in-your-face, but the content is excellent, and often shows onscreen the title and author of papers referenced - how many shows do that?!)

This is what I'm unsure of. I feel like most people have used a library at some point in their lives, and most people don't seem to disagree with the concept of a library (at least, they never seem to think they did anything wrong when they visited the library as a four-year-old and read "Pat the Bunny" for free), so I am trying to determine if the qualms are with the particulars of TheArchive's implementation, or if people suddenly change their minds about things when they suddenly have a financial incentive to think otherwise.

From my perspective, the reading experience on TheArchive's lending experience is sufficiently degraded that I am unlikely to choose it over other options. I tried looking up Endymion by Dan Simmons to see if I could check it out and read on my Kobo. Firstly, I can't without a great deal of difficulty, due to the DRM. Secondly, what I check out is not the same designed-for-ebooks format I would get if I actually bought Endymion from the publisher. It's instead an EPUB/MOBI generated from OCR of their page scans, rife with formatting and typographical errors. Yuck. So my only other option is reading the raw image/PDF scans, in the browser. Which I really can't imagine doing for 12 hours unless I truly have no other options.

Which is to say, I don't think the "piracy" claim holds water, because the experience is so much worse than the regular purchase route that I'm not sufficiently dissuaded from buying the book if I can read it on TheArchive instead.