Temporary National Emergency Library to close 2 weeks early
blog.archive.org
blog.archive.org
Did this come as a surprise? Did Internet Archive not expect publishers to sue?
The Archive launched the emergency library during a global pandemic. Lots of people, myself included, said that this was a risky move because they would obviously get sued and it would put not only the Archive but the existing idea of Controlled Digital Lending - which hasn't been clearly established as legal in caselaw - at risk.
They're trying to imply that the publishers are somehow bad people for suing in a pandemic, and sure, the publishers may very well be bad people in general, but IA launched this effort on the grounds that, more or less, the law doesn't matter any more in a pandemic.
> However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world.
That's precisely why we said they shouldn't have done this.
Controlled Digital Lending matches the existing operations of a physical library - there is one paid physical copy per loaned title. Publishers and authors alike like physical libraries because when more people check out books from libraries, more copies get purchased. It stands to reason that they shouldn't mind digital libraries that follow the same principle.
Internet Archive said, the same legal analysis that makes Controlled Digital Lending permissible also makes uncontrolled lending permissible when we decide the world needs it. We can give people unlimited electronic copies of books for one physical copy. The more people who read our books, the fewer purchases happen.
That challenges the very idea of what a library is in the digital world - it breaks the balance that has historically governed how physical libraries work. If I go to my local library and the librarian says "Actually don't bother checking this out, I'll just photocopy the whole book for you and you can keep it," I'm not sure I'd call that a library. It's a useful service for me, of course, at least provided I figure out some way to make sure that the people who write the books I want to read keep getting paid, but it's now something entirely different from a library.
I don't think they like libraries per se, they've just made peace with the first sale doctrine.
On the upside, libraries are a stable source of demand for new books.
On the downside, libraries' collection are generally used more intensely than private collections - each book in a library displaces more than one private sale.
> It stands to reason that they shouldn't mind digital libraries that follow the same principle.
Maybe. I don't think the first sale doctrine really covers Controlled Digital Lending, so I guess we'll see how things pan out in court.
There's no way to prove this. You can't just look at someone borrowing a book from a library and say they would have bought it had the library not been there, They might just have never read the book.
Publishers would prefer to instead license ebooks and pretend first sale doesn't apply at all for digital books. I understand why that irritates a lot of people.
The Internet Archive, on the flip side, is pretending that copyright infringement doesn't apply during a pandemic and that the first sale doctrine is much more expansive than it actually is.
My hope is that both sides will come to accept CDL as a compromise system. It hurts publishers and authors no more than print lending does, and it's on much more solid legal ground than the IA's uncontrolled lending.
But, more importantly, the characterization of libraries as something that actually hurts publishers and writers, as implied by writing that CDL would hurt publishers "no more" than ordinary lending, is something I feel compelled to oppose.
Libraries, and lending of some form has been part of society since likely even before anything we would call a book were first written.
While it is true that some of the first libraries were not exactly public, and that you probably wouldn't be allowed to carry the book home from most, but this doesn't take away from the fact that libraries as part of society owes nothing to publishers. If anything, it's the other way around.
If the absurd idea that seems prevalent in digital publishing that one book would only be allowed one reader had been around when the first books were written, it's fairly likely almost no books would have been written.
While publishers might feel lending is inconvenient, if they continue trying to get rid of lending, they are no wiser than a runner in a headwind wishing for the air to go away.
I'm not saying authors shouldn't get paid, but I am saying that pinning any loss of income on libraries is devaluing libraries and lendings role in history - and society - immensely.
Sure.
But the basic idea of law is that the contract between us now and us in the future is relatively fixed. Otherwise, there is no difference between a system of written law and judges deciding cases at their whims.
> But, more importantly, the characterization of libraries as something that actually hurts publishers and writers, as implied by writing that CDL would hurt publishers "no more" than ordinary lending, is something I feel compelled to oppose.
> ... [bunch of text that does not actually oppose the previous statement]
I think most reasonable people can recognize that:
1. Libraries are a good and useful component of modern society
2. Their lending may economically hurt authors and publishers
Right, and no party has the ability to change that contract unilaterally, crisis or otherwise. You can renegotiate the contract, but the contract as it exists does exist.
Yes, there's an argument that people are in particular need of books now that physical libraries are closed. It's a reasonable argument and well worth suspending the normal rules for, somehow.
But there's also an argument that people are in particular need of being paid for their work now that everything is closed. Any modification by a reasonably-representative governing body would take this into account too and try to avoid actions that put authors in an even more financially precarious position than usual.
Neither side has the moral (or legal) right to make things go entirely the way they want them go to. Publishers don't get the right to say that the doctrine of first sale doesn't apply during a crisis because they need to make money, either.
(One thing we could have done is passed an emergency compulsory/statutory licensing regime for e-books, analogous to the statutory licenses for music, saying that the Archive can give people e-books if they arrange for the rightsholder to be paid a certain small but non-zero royalty for each copy. They could sell the books, they could run a fundraiser, they could work with local libraries who are presumably no longer buying new books quite as much, etc. There's no real mechanical reason that couldn't have been implemented quickly, but it does require some competence from the government. If the underlying problem here is that we don't expect the government to be competent, well... that is a problem, but I'm not sure that saying people can disregard the law at their discretion is the answer.)
I don't think you understood me correctly.
I'm not saying that I personally believe libraries hurt publishers and writers. I'm saying, "Here's how to rebut publisher's concerns about CDL."
Publishers have already made their peace with libraries with regard to the lending of physical books. The first-sale doctrine protects what libraries do. Publishers already know there's nothing they can do about that, even if some of them might think it hurts sales. And so the argument for CDL is that it mirrors physical lending and thus puts them in no worse position than if the digital books were physical books.
Again, to reiterate, I'm not saying that libraries are bad for publishers or authors. I'm saying that if you're trying to address publisher's concerns about CDL, then pointing out that it's no worse than physical lending is an effective way to argue your case.
Second, even if Controlled Digital Lending is permited what they did is so far beyond that. And they did it with widely avaialble commerical works making fair use arguments of access, academic use etc. non viable.
The internet archive has an important mission, and they may have put that in jeopardy in order to let people get free copies of books that anyone can get from their local library (maybe going on a wait list) or just buy outright for under $10.
And why should a digital library have to work in the same way as a physical library? Why should we be bound by analogising the way a physical library works to how a digital library could and can work?
A library, to me, is an accessible store of published works, with some level of curation. That's it. It doesn't have to include the idea of physical access limits, artificially imposed. Indeed, one of the benefits of digitisation is escaping the limits imposed by physicality and opening new ways of doing things.
In this case, copying a book has cost and reduces quality, are not related to the point of the analogy, even though they differ from digital copys.
Given your last paragraph, it seems that the you and the original comment disagree on what a library is.
In the end, like in your second paragraph, it doesn't really matter what we currently think a library is and what we want to make of it. And that's an important discussion.
But using an argument from analogy to say why something can't or shouldn't be done is yes, as you say, problematic, because it's 1) usually easy to pick apart the analogy but also because 2) it's intellectually dubious and lacking in rigour.
1. After some quick searching, I don't think CDL has been ongoing for anywhere close to "decades".
2. Some IP like trademark can be lost if it isn't defended. I do not believe that is true for copyright.
3. In general, this is not the way law works. If you steal from someone for years without being caught, you don't create a right to steal from that person over time because it's "been ongoing for anywhere close to 'decades'". The lone exception that I"m aware of is land ownership - adverse possession is a thing, but it only applies to real estate and it applies to a specific piece of real estate, not a pattern of activity.
Wait, what? Who said anything about stealing? Publishers might try to argue piracy but CDL doesn't seem to fit that either on account of the DRM.
Honestly I'm not at all clear what a cohesive argument against CDL would look like. Given the first sale doctrine it wouldn't even surprise me if some of the current ebook pricing practices were actually illegal.
The argument is simple. Copyright allows the copyright holder to enjoin anyone else from making a copy of a work - including a digital copy. Essentially all software works by making copies of data that is uses.
The first sale doctrine doesn't apply (IMO) because it sets limitations on the rights of a copyright holder to a particular copy of a work after it has been sold. Each "loan" of an ebook is a fresh copy.
If you look at the Controlled Digital Lending website[1], they pin most of the legal legitimacy on fair use, not first sale doctrine, which I think is probably much more solid legal footing.
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That being said, it seems like the ultimate end run around otherwise well established law surrounding books. As you noted essentially all software works in this way. Throwing out all established laws and end user rights "because digital" hardly seems reasonable to me.
How does such a line of argument square with the fact that even making personal use of a digital item inevitably involves multiple copy operations on a local device in the best case? Even moving it between two partitions on the same device involves copying it. (I suppose I should just be grateful that the digital overlords saw fit to grant me permission to move things between logical volumes. /s)
Most digital goods are "sold" as a copyright license.
The EU has already done this since the ECJ ruling in 2012, and the US is behind the curve.
Controlled Digital Lending is impossible because if someone can read a page of text on their computer, then they can also scan the whole book automatically. Thus readers can lend a book for a second, and keep a copy of it forever under their control. Once they have a copy, they can share it privately with other people at no cost.
Pretending that Controlled Digital Lending is possible is tyrannical because it requires that people not be able to run arbitrary software on their computers, and that they cannot communicate privately between them. As long as general computing devices are available and that private communication is possible, Controlled Digital Lending is a physical impossibility.
> Thus readers can lend a book for a second, and keep a copy of it forever under their control Unless you were referring to this; in this case, how is this _Controlled_ Digital Lending?
Nevertheless, controled purchase would be out of the question in your case, too, would it? Or is that controled inasmuch digital lending can be persued?
The NEL lendings still expire after 2 weeks using the same DRM as before, it’s not the same as downloading a free copy for life.
There’s a lot of different views about the purpose of life or lack thereof, but for all except a few beliefs, having access to past writings is very important.
Humanity is only at the very beginning of its existence. The success or failure of projects like the Internet Archive will drastically change our future.
If you think the loss of the Internet Archive won’t significantly current day activities, you’re wrong. Besides the fact that the IA holds the only easily accessible copies of many websites from the 90s and early 2000s, there is the “my legacy” factor.
Do you think people would have commissioned statues of themselves if they knew they were going to be vandalized and torn down in a protest 100 years later?
Even though we may try to stop our egos affecting our decisions, they still play a huge role. Mathematicians don’t just write papers to further the field, they also do it to gain notoriety and leave a legacy.
I know that if I write a blog post, it will be unavailable from its original source within 20 years. But that’s OK! The Internet Archive will store a copy and someone many generations from now will be able to read my humble writings. Oh... but the IA was shut down because its leadership decided to be philanthropic during a period of human history that lacked freedom of information. I’m going for a walk instead.
Perhaps the “my legacy” effect has only a marginal influence on how many authors decide to put pen to paper, but it’s still something. It’s hard to measure, so if it’s plausible that it could be significant, we should act appropriately.
Philanthropic by massively infringing on copyright. Giving away something you own and have a right to give away is one thing. But critics of the emergency library allege that because the IA doesn't own the copyright to these books, they don't get to make and lend unlimited copies. Under the first sale doctrine, they can only lend out as many copies as they own.
TBH, even that is not established as a point of law (if the lending is digital copies of physical books) but it seems a reasonable position and publishers/authors weren't pushing on it.
I only need to buy one copy of sheet music (and maybe not even that, if I'm a quick learner) for a thousand people to enjoy my performance of it, but merely having the copy does not entitle me to perform it for those thousand people. The first-sale doctrine does allow me to resell the sheet music itself, for someone else to rehearse from or study, but that's it.
I understand the innate desire of people to have a "better to ask forgiveness than permission" view of saving old web content (because we all enjoy finding out the thing we thought we lost forever by not backing up ourselves was in fact recoverable), but either copyright law exists or it doesn't. If you want a secure future, make archivers opt-in via a meta tag on pages to indicate the content is under a permissible share-alike license.
They are initiating a save on behalf of the user(a "user agent"), and thus are not a robot, so they don't need to respect robots.txt.
You mean they don't need to respect copyright law? So it would seem.
If a user wants a legal copy, they can choose File -> Save Page As. The copying isn't the problem, the reproduction without ads or paywalls or respect to the owner's copyright is.
Consider:
1. Ebooks go through great length to make the information behave like a physical book.
2. Libraries have to buy as many licenses as they can plan to lend our concurrently
3. Licenses will even expire after a bit, because that's what real book do, they wear of.
So far so good (if your goal is to simulate real books). But now:
1. Wanna give your ebook to a friend? nada
2. Wanna lend your ebook to a friend? nada
3. Wanna use the book after companies decide to disable their license servers? nada
4. Imagine a few hundred years from now. We can still look at old books because they exist and their content is not controlled. That would not be possible.
Of course it is always possible to remove the DRM protection, but that is illegal.
We've been duped.
Edit: Layout.
I realize things like IPFS exist, but as far as I'm aware those require manual file pinning. I want to just donate storage and bandwidth to back the files up, not have to specify which ones to back up.
I'm betting someone could create an open source project to traverse the Merkel tree, choose random blocks, and pin them... It could be made smarter by also checking the number of peers per block and prioritize the least pinned blocks.
Edit: And a related discussion I found: https://www.reddit.com/r/ipfs/comments/b4he2m/idea_partialse...
In the end you need a decision layer to decide what to back up that decides what based on some standard of what's good for society.
But maybe you don't need to centralize the storage, I could imagine a distributed IA which mostly piggybacks on other people's storage.
There'd probably have to be some index (can IPNS be used for this?) to specify the root, and then you could specify you want to store XXX GB of random data from this root node.
https://old.reddit.com/r/DataHoarder/comments/h02jl4/lets_sa...
I know that Brewster Kahle is involved in both, and I imagine that the defence team will be staffed by EFF lawyers. I think both the Internet Archive and EFF are good causes, I just want to know which way will cause less paperwork for them to receive a donation.
If it's impossible to buy the book, why is NEL a problem for the publishers? Would they rather have that no one ever read the book again?
Publishers may or may not give a shit if you put forward a book in a fashion that does not impact them monetarily. They give a shit if you do. They definitely don't care what the ratio between the two is; they care that the latter is non-zero.
The IA treated this situation and decision like they’ve treated all their decisions. They archive data without permission. They share this archived data without permission. They have no official instructions on how to remove data from their archive. There are some flimsy instructions about robot rules, but it’s not clear if they work.
Not everyone agrees to have their old forum posts, yahoo posts and other info from the early days of the Internet still available in an archive that’s searchable by the government, employers, etc.
Large publishers are the worst. And the writers aiming to profit off off the fact people cannot go to a normal library can be dumped in the same bucket.
I’d like to see some numbers from a writer that actually lost income due to this, and maybe I’ll reconsider. As it is, I just see them screaming bloody murder over something that’s completely theoretical.
Nothing that needs to be accessed via a network and requires human interaction is really truly beyond the reach of nation states. Just because you're on an offshore platform in the North Sea [1] doesn't mean you're not exposed to having your network and supply lines cut off at a minimum.,
Maybe start with more funding to have copies in more countries.
This happens already in the US and other countries with various digital preservation initiatives that have legal mandates for their missions.
(...which, if this announcement is any indication, should probably be mirroring the IA if they haven't already done so. I believe they used to avoid that, under the assumption that the IA would always be accessible, but maybe not now.)
There is no reason for humanity's digital web of Alexandria to be burned for a dispute with book publishers who have no legal claim on the contents of the Wayback machine.
The many people who donated to Internet Archive were doing so primarily to preserve materials that were unavailable elsewhere, e.g. lost websites. They were not primarily donating money to enable lending of currently published books, which are widely available via multiple channels.