My thoughts in response to the lawsuit against the Internet Archive
blog.archive.org
blog.archive.org
If that's the main argument of IA, they'll have a tough time in court. It's reasonably well established that when it comes to intellectual property, you can refuse to sell it, and only grant a limited license. With some small carve outs like the First Sale doctrine.
They'll need a judge who is willing to legislate from the bench.
https://www.justice.gov/archives/jm/criminal-resource-manual...
When I buy a book, I buy the physical item but I only buy a license for its content. I own the book but I do not own the content. That also makes it difficult to make copies.
In the digital world world there are not longer physical artifacts, only content and making copies is trivial. In fact, 'buying' digital content involves making a digital copy, not transferring ownership of a single physical item.
My understanding is that these differences result in different areas of copyright law being exercised and that the First Sale Doctrine applies to physical items (and it requires ownership of the copy).
It doesn't seem like they're willing to do that, and while I agree with their viewpoint and the troubling future with licensing... it may be the hill they die on and I'm not sure it's worth the trade off in this specific case. IMO the Internet Archive is incredibly valuable to humanity.
I admire them for taking the stance, but worry about their future. Hopefully they're playing tough publicly and aren't as willing to die by the sword in private.
They are the Internet Archive, the archive of freely (in the past) available stuff that can't be found anywhere else, in most cases. This is much more fragile than old books which likely exists in thousands of copies anyway.
I do not admire their stance, and am unhappy that they are recklessly jeopardizing their unique thing to make a case where they have a very big chance to lose, without any circumstances forcing them to do so.
This is not how you serve as a warden of a valuable archive. (I know, I know, it's their right and their choice.)
First sentence of the Wikipedia article.
> The Internet Archive was an American digital library with the stated mission of "universal access to all knowledge."
There is a real and serious risk of having ALL published material eventually fall under "licensed use" instead of ownership.
We're rapidly tipping towards a society where you pay rent to license everything, and own nothing.
In the short term, I find this model abusive. In the long I think it guarantees we will have a competitive disadvantage against countries that don't enforce this style of licensing.
If you're talking about civil disobedience, that's a different matter, but one of the key things about effective civil disobedience is that large numbers of people have to break the law and accept the penalty in order to overwhelm the system and thus show that the law does not have popular support.
Besides that, how many other Internet Archives do you think will follow the one we've been discussing by also flagrantly violating both the letter and the spirit of copyright law?
Suppose the naysayers are right and they're going to go bankrupt. What happens in bankruptcy? They sell their assets for fair market value.
To a new non-profit that uses them for the same purpose.
All that requires is that they raise an amount of money similar to what they ordinarily have to raise to continue operating regardless. They do, after all, replace all of their computers with newer ones from time to time already.
Maybe.
The other thing that could happen is that their assets get valued by some 3rd party and the publishers own IA's assets as part of the settlement (who presumably destroy them).
At the end of the day I think this will be a battle over whether or not the Internet Archive can continue to exist... and it's incredibly important for them to live to fight another day.
That's not clear to me at all.
Here are IA's words:
"as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. ... During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist"[1]
That's pretty open and flagrant copyright violation, even if you believe that controlled digital lending is legal, which isn't clear. Piracy isn't a criminal offense - it's a tort. The way to halt and recover from the damages of a tort is to file suit.
___
1. https://blog.archive.org/2020/03/24/announcing-a-national-em...
If you get a speeding ticket on a road where you believe the speed limit is unreasonably low, do you "fight" with the cop at the side of the road, or with the transportation department in a meeting room at city hall?
They're doing the former, which just wastes everybody's time and money.
You need a critical mass to be "on the wrong side". That's how marijuana was legalized, for example. Someone has to be the seed crystal around which the critical mass can grow.
That said, sometimes bullies can be turned to buddies through understanding and changing your reactions (see Izzy Kalman) -- but not always. So no simple answers.
If the IA as a specific legal entity if going out of business from this, then what's next for the people and resources involved? As in, how can we archive the archive? Or how can the ideas spread in new ways?
I did not post this there, but as another idea beyond books, the IA could also expand its programs in other ways. For example, as an idea I submitted years ago to a Knight News Challenge on the future of libraries, public libraries could be used (via to-be-written browser plugins or proxies) to archive their local resident's public social media posts and public blog posts and comments on blogs. This archiving would happen as such comments were and submitted to social media services. The people making the posts would be granting permission to their local libraries to archive and republish the content. This could create a freely-accessible and archived public web as essentially a shadow of these social media services. The IA could coordinate that.
Despite its importance I don't think the Internet Archive is a common household name on the level of Wikipedia and I don't think any sort of boycott would have the legs (I would love to be wrong about this).
Though I think in this context by bully the OP probably meant something like boycott.
I bought every Cory Doctorow novel through his publisher Tor because he gives them away for free and I enjoyed them. Tor have been acting like bastards to libraries. I now boycott Tor, so I am not buying his books, and I suppose that means I'm bullying the author.
Note that many other libraries across the nation engage in exactly the same practice. Of course the legal problem is that digital goods are "licensed" instead of "owned" ...
I disagree with book publishers and general copyright law, but judges can understand the difference between physical books and digital ones. Physical books cannot be outright copied atom for atom in 5 milliseconds and distributed to millions in hours. The difficulty of any sort of copying makes it significantly economical to just buy a new one, or have one lended that had to be bought.
I'm afraid IA is going to be demolished because of their move here. They shouldn't have done it under the banner of IA. If at all they should have done it under a rogue name and service over TOR.
Even if that was the case (which it isn't) then the IA would still lose this case.
Yes, that's not the technical definition of FS doctrine, but that doctrine was written before this technological context existed.
If I'm mistaken, I'd appreciate a link that explains their approach.
Here's the link to their FAQ:
https://help.archive.org/hc/en-us/articles/360042654251-Nati...
To quote:
Is this controlled digital lending?
No. It is close to controlled digital lending but is significantly different while waitlists are suspended. This library is being mobilized in response to a global pandemic and US national emergency. It shares aspects of controlled digital lending by controlling the physical book that was scanned and the redistribution of files through digital rights management software, but differs by having no waitlists for users borrowing books. Once the US national emergency is over and waitlists are back to their normal capacity, the service will return to full controlled digital lending.
Read this: http://blog.archive.org/national-emergency-library/
> The National Emergency Library launched on March 24, 2020, and closed on June 16, 2020.
> After June 16, books in the National Emergency Library are available to one borrower at a time using controlled digital lending.
This very strongly implies that between March 24 and June 16, they did not pracise controlled digital lending by lending each copy only once at a time.
Maybe pedantic but there is no "intellectual property" law in play here. Just plain old copyright law, under which they do fully own the books - as opposed to licensing them. What copyright law allows is everything that libraries do.
My opinion - One should be able to use a webcam to share a book with someone. That's not far from what IA is doing though it's also technically quite different.
On another note, I'm not a fan of using the pandemic to highlight IAs value even though I appreciate their efforts.
Regular copyright law says that if you _buy_ a book, digital or not, you can resell it. If you license a book, digital or not, you can't except as specified in the license.
IA's point is that digital books (which are many or most books nowadats) aren't sold; instead, they are licensed.
https://www.justice.gov/archives/jm/criminal-resource-manual...
> Further, the privileges created by the first sale principle do not "extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it." See 17 U.S.C. § 109(d).
Patents are explicitly covered there, too; from Art 1, §8:
"[the United States Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
https://controlleddigitallending.org/
https://controlleddigitallending.org/statement
The internet archive may have its faults, but its value to humanity is something that should be considered. It's sad it won't be. The only consideration will be how they cut into profit and on those grounds they will be penalized.
I realize this isn't the audience for this kind of comment, what with being a news site for a profit driven startup culture, but this profit driven culture we have is going to destroy so much before we even realize what we've lost.
Why are the rest of us entitled to your creation?
Over the years, because of this system, not just the original creators, but hundreds if not thousands of people have benefited, profited and bettered their lives because of music originally recorded in the 1950's and 60's by people, in many cases, long dead.
Under the north american system, the copyright owner would have made millions of dollars, and entire genres of music would.never have been created in their current form.
The value to humanity in that situation far outweighs the profit of the original creators.
Not the most convincing conjecture when the "loser" in your comparison is one of the biggest music genre-creating powerhouses in the world and its music is rife with sampling, and the "winner" in your comparison is mainly known for a single genre of music.
I think the argument is reasonable that we don't get any of it, at least not in the forms we have now, without Jamaican music. DJ Kool Herc was Jamaican.
on the other hand, it is definitely true that the American music industry with its strict copyright has not exactly been stagnant. but it is different.
What made they come out of poverty? Their creation? Or their distribution? Because how you make it seems, the ones that came out of proverty aren't the creative ones... just like the good old copyright owner in America.... It's the ones that found something good and were able to sell it better. The only difference is that the creative one didn't have a choice but to forgo their ownership... just like in America though, which happens under economic pressure instead of by law, but at least, they can at least refuse that.
> The value to humanity in that situation far outweighs the profit of the original creators.
It does though if the original creator couldn't make money out of his original creation... Your premise depends on the fact that without the original creator, the subsequent creation wouldn't be worth it... You want to scrap what's worth it... for something that can't even exist without it.
Yeah, with the original physical thing you created with your own two hands. Not with a copy of some text or image in a file.
If they posted their photo collection online for all to see, they can't expect people not to make a copy of some of the photos.
There isn’t an easy answer to this. On one side there are many cases where people give away powerful things for free, which has huge positive implications and on the other hand there I sympathize with the notion of wanting to reap benefits of their work.
The underlying problem may be that you only profit if you demand or enforce it?
It's like lighting a candle. If you create one, you do not have to share it with anybody. But once you do light somebody else's candle from your own, they are now free to light anybody else's without taking anything away from your candle. That's how ideas work.
The only reason IP law exists, is because people have decided that profit might be lost if people share your idea with others. We are artificially stifling the spreading of ideas from person to person, because of profit. This is a tragedy.
IP law exists so people share ideas, because they can do so while still being compensated. Otherwise they might keep them secret, not devote a lot of time and resources into developing them etc.
"You spent a billion dollars to develop a medication for this type of cancer. Now everybody can manufacture it and you're down a billion dollars. Thanks for your generosity!"
How often do you believe that will be said before people stop investing money into development?
There are explicit influences in things that are created, but there are many implicit influences too. That thing that was created, could it have been made without this society or culture? Could it have been made in a different culture? Didn't we all contribute a little bit to it?
So, while I do agree with your general point that people must have incentive to create and profit/control is one way to do that, my concern is that when things are locked up tight they die and our culture does not benefit from their creation. It would be easy to say that if they are forgotten then maybe they weren't of any use, but history of full of art and science that was not appreciated until much later.
Or conversely, a creation that is a clear product of the zeitgeist could be very influential but if no one can use it, then waiting decades for rights to clear will render it useless.
Imagine if cooking were invented today. Only one individual in the world would be allowed to make sausages without paying royalties.
I prefer a middle ground and the original intent (at least as much as is commonly told) around copyright, trade secrets, and patents seemed to be a relatively healthy take on that even if it now needs an update. Depending which path you choose there's a trade-off between how much the creator gets and how much society gets, with varying degrees of control, protection, and communal ownership. The creator gets to choose, but they have a limited set of choices agreed upon by society, rather than individual agreements for every item we buy.
I think this example might serve: https://news.ycombinator.com/item?id=22250260
Many people have a problem with equating "theft" to intellectual property since the concept doesn't map directly. If I make a dining table, I shouldn't have to hand it over to my country after a "limited" time (life of the creator plus 70 years now, isn't it?). But perhaps other people should be able to create similar looking tables after a while, to help advance any new techniques or artistic styles used. Ideas can be used while still belonging to the creator.
If I try to block that cultural evolution with a license of some kind, I think I'm doing a disservice to the culture that helped me create the table.
Anyway, does that still relate to the article? Probably not, I was replying more to the concept that everything is made in isolation so full control should be kept. As a society we already decided that doesn't always apply to IP which books are definitely part of. If we aren't careful in separating the concepts of products and ideas, then we get tractors we aren't allowed to fix.
In return they'll give you <10% of the profits of publishing the book. That seems like a terrible deal today.
On top of that we're also talking about books where the author is dead.
Why is anyone entitled to my creation isn't a valid question to ask of book publishers. They didn't create a thing.
But I would also draw your attention to the fashion industry. Before the 1980s logomania allowed for trademark law to be applied, there was basically zero IP protection on fashion... but it turns out it was a pretty robust industry anyway.
As a society we've gotten pretty hooked on IP law, but I'm pretty convinced we'd all be a lot better off with MUCH much less.
Assuming everything is created with profit as a motive is fairly disingenuous. Look at the open software community just for a start. How many person-hours of labour has been put into those alone without profit ever coming into play as a motive? How much profit over how many people has been generated because of that work? Take say linux for example. What is the sheer number of people that have profited off of linux and the insane amount of overall profit generated vs. Linus, the 'original' creator of the kernel? Just to take one very small example. I'm guessing at least to start, and I may be wrong, but Linus probably isn't struggling financially, meanwhile just how many people now make a living off of linux existing?
I imagine anyone would be hard pressed to actually calculate the amount of people that have profited off of linux being available freely, the actual amount of money made by literally everyone that's made money off it being created and distributed the way it has been, without profit being a sole motivator.
It's not the free, hobby stuff that's giving IA trouble. And if you look at what people are consuming the most (games, books, movies, tv shows), they obviously prefer the content made by people trying to make a living, not the free-time hobby projects. The biggest games on Twitch are League of Legends and Fortnite, not The Battle of Wesnoth.
Pointing out that people will make some content for fun doesn't really mean much because a world where we depend on hobby/passion projects is obviously not the optimum. I want someone to profit by making the exact content that I want.
One can say a lot about copyright law, but saying it 'balances' many considerations is a bit of a stretch, to put it mildly. Copyright law pays lip service to a number of non-commercial interests, like archiving (up to a point).
On the whole, it is strongly biased toward the interests of the big publishing industry that has managed, over the years, to greatly expand its scope and duration.
Just wait for it, it's almost time for another term extension, or else Steamboat Willy is going to become public domain in a few years.
This is broadly a myth.
Most extensions of copyright globally have been about unification of duration, which tends to settle at the longest as any international treaties about anything do. Ultimately Germany and France were the biggest drivers of this globally, far more than works out of the US.
Now that process and unification has broadly happened (at least for newer works) it's unlikely there will be any meaningful term extensions. It's not impossible that some works that receive lower protections might be equalised, or that there might be some mandatory collective schemes for works of completely unknown provenance, but even they seem unlikely.
The truth is that a term extension for Steamboat doesn't really do much for Disney for the political capital required to obtain it. They still have the trademark effectively in perpetuity, Steamboat itself as a work generates no revenue, and there's no real risk to Mickey as a character as Disney likes to portray him nowadays anyway as it's materially different.
Steamboat Willy is a massive red herring in terms of discussion of copyright policy.
In any case, profit is a specific limitation on what libraries and archives can do:
108(h)(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.
Throw in the constraints arising from social distancing strongly disfavoring physical purchasing, and it sounds to me like the industry is simply refusing to adapt to the times.
If people will not purchase your book at the price you set it at, I'd argue that it isn't a reasonable price. Further, if you invest large amounts of capital into technological infrastructure to thwart free dissemination of digital content, and people decide not to aid you by recouping your investment through purchases, I'd consider that the Invisible Hand at work.
The publishing industry is less a disseminate anymore, but more an IP speculator. I file them with patent trolls at this point.
1. Being one of the first lintel democracies implemented, it got some things wrong. The electoral collage and that there’s a local optima in a two party system are the first two problems that come to mind and were avoided by many western democracies.
2. The US is really large - both in population and economy. The large population makes it hard to get enough consensus to make fundamental structural improvements (constitutional amendments), and it reduces the influence of an individual vote for any national office. The large economy means that a special interest can reap large economic rewards by steering policy in their favor, so they try really hard.
> electoral collage
I'd disagree that the US got this wrong; it made a lot of sense historically. These days it arguably introduces some unnecessary inefficiency into the process but I don't think that really matters in practice. The primary objection seems to be that it doesn't reflect the popular vote, but that's entirely by design and arguably the right thing to do.
> two party system
I agree with this but want to clarify that it's specifically first past the post due to winner takes all voting that causes this. It badly needs to be fixed but why would party politicians directly vote against their own career interests like that?
Separately, political parties themselves were argued against when the country was founded but sadly they were allowed. I'd note that most (all?) western countries also got this part wrong (IMO).
> The large population makes it hard to get enough consensus to make fundamental structural improvements
This is intentional. AFAIU, the US political system was specifically designed to be resistant to change in order to avoid the failures of previous republics.
> reduces the influence of an individual vote for any national office
Things were hypothetically (AFAIU) supposed to be done at the state level (think EU) but the interstate commerce clause ended up doing wonders for that.
But something being a compromise doesn't mean that it was sensible - only that it was the best they could do. Furthermore, that particular compromise was hammered out by a very different group of states, and in the context of a very different distribution of powers between the federal and the state governments. Today, we have a much more powerful federal government, we have no slavers to appease, and we have so many small states that, taken together, they can amend the Constitution (via convention) while representing less than 1/4 of the country's population. In this situation, EC becomes a tyranny of the minority, and the majority is not going to tolerate that forever.
You said it yourself. Smaller states can amend the constitution while representing a minority of the population. (I didn't do the math on that but it sounds about right.) So why would they ever agree to directly proportional representation? It's not in their best interests!
Even today, proportional representation is bound to dissatisfy the less populous states whose interests would end up dwarfed by the majority of the population. Meanwhile the more populous states would hardly take well to a fixed number of votes per state. Applying one method to the house and the other to the senate makes perfect sense since bills have to pass both. The problem is that it's not clear how to apply such an arrangement to an election (the obvious schemes would be far too cumbersome). The electoral college seems like a reasonable compromise to me.
(Of course the house is no longer adjusted IIRC, so it's not really proportional representation either. Arguably the states should wield far more power and the feds far less - that would shift attention much closer to home for the majority of issues.)
The Founders warned about this, by the way. This particular bit from the Federalist Papers (#22) was explaining why keeping the Articles of Confederation as they were was no longer tenable. But it's equally applicable to the Senate and EC as they exist today.
"Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration."
As a matter of principle government should be as local as possible so as to minimize such concerns. Even without bringing population size into it, it doesn't seem reasonable to be subject to the whims of others across such vast distances. Too much is done at the federal level; states such as California, Texas, and Alaska are already far too large from a governance perspective.
> The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration.
This is the one line of argument that I do buy, but I think it will always be a fairly subjective balancing act at the federal level.
Honestly I strongly suspect that eliminating the interstate commerce clause and outright banning simple plurality voting schemes in political contexts at all levels would resolve most of the currently perceived political dysfunctions.
That it was appropriated to justify the massive expansion of federal power is another matter, but, well... given how absurd Wickard was, I'm pretty sure that if it weren't the Commerce Clause, it would have been something else.
As for majority voting, all alternatives are strictly worse. The problem, rather, is that there's no meaningful democracy at federal or even state level, because there's no meaningful representation at that scale - the "representatives" are anything but. I'm not sure there's such a thing at any scale, actually - for all the purported benefits of representative democracy wrt preventing mob rule, history has plenty of counter-examples, including US here and now (it's a minority mob rule, which is even worse).
I'd rather have direct democracy, but only so long as it's truly deliberative (i.e. not just people voting on a list of yes/no questions put in front of them, like referendums - think more along the lines of, say, how the Constitutional Convention worked). And scaling that requires some form of council democracy, with enough levels that meaningful deliberation remains possible on every one of them, all the way to the top.
By comparison, California has ~40 million people and would be the 9th largest economy in the world if it was an independent country. Ohio has around 11 million people, and the Greater New York City area has ~20 million people.
Aside from structural / legal differences in the US, there are just massive differences in scaling and wealth in the US vs. those countries. They don't have these problems because they just don't have that kind of money and population base.
Isn't that the exact thing they'd be referring to?
As a non-profit library the plaintiffs effectively have to show that the Internet Archive acted in bad faith[1] in order to receive statutory damages. § 504 (c)(2) says,
> The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords
Without full statutory damages I doubt IA would have to pay much of anything--at least, not so much that they become insolvent, unless the judge is mean-spirited--as it's unlikely the plaintiffs could show even a hint of significant economic loss. In fact, the inability to show economic loss in this case is likely to be critical to IA's Fair Use argument. In any event, I suspect it's this mandatory remittitur clause that gave the IA the courage to do what they did.
I agree the IA's interpretation of the law is unlikely to succeed given modern courts' sentiments regarding copyright. But is their legal argument so bad as to constitute bad faith? During a global pandemic? Where armies of educators will come out in defense of IA for the social benefit they provided given the exigent circumstances--a near complete, if not wholly complete, inability to gainfully access not only hard copies but electronic copies of these resources as well?
In light of the situation, it might even be possible that a trial court either approves of IA's theory or remits almost all damages, and the appellate courts refuse review, electing not to fall into the IA's or the publishing industry's trap of leveraging the pandemic to shape copyright law. In fact, rejecting IA's defense but using remittitur to reduce damages to a token amount is probably what a risk-averse trial judge might do, hoping that both IA and the publishers will accept a detente.
[1] I'm being a little lazy. I don't know of any precedent that equivocates the statute's language to the term of art, bad faith. But it seems close enough for loose talk.
EDIT: I forgot the wrinkle in that remittitur clause that I belatedly caught the first time I considered it a few weeks ago: it specifically refers to reproduction, not distribution or infringement generally. I dunno what the caselaw looks like, but that's an amateur oversight on my part, which I've apparently made twice. I guess I'm just eager to defend the IA.
>> The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107
Specifically, the plaintiffs have to show that uncontrolled digital lending does not constitute fair use.
That doesn't seem very difficult to me.
Here’s a story about weak but reasonable grounds: Say I think it rained last night because I glanced out the window in the morning and saw the street was wet. You say it didn’t because you got up earlier than me, saw everything was dry, and you saw a street cleaner come through, making the street wet. Clearly you’re right but before I had this information, I had reasonable grounds for my belief.
Is this basically what they are suggesting here? They are supplying the copies, and it's up to the users whether or not they break the law from there?
> Is this basically what they are suggesting here? They are supplying the copies, and it's up to the users whether or not they break the law from there?
Copyright doesn't work like that - the party who makes the copy is the one who does the infringing.
If you want to use a traditional library analogy, what IA did was basically photocopy a bunch of books and put them on the shelf for patrons to check out.
Yes I know. It definitely makes sense in most cases. If I'm handing out books in a park then people should be able to assume they aren't breaking the law by taking a copy.
Maybe the law needs an update for this concept of a repository. Where they can keep a catalogue of everything regardless of copyright but the requester bears the clearly marked and advertised burden of satisfying the copyright rules once they ask.
I don't understand why this would be a good idea. Perhaps you could elaborate?
We already have libraries that operate just fine under the current set of rules. I think controlled digital lending is probably a good idea and something that should get more legal support, however.
That's pretty much what I was suggesting, mentioning copyright rules wrt fair use etc.
Does it make sense that a library has 3 digital copies of a book so that only 2 readers and a single teacher can check it out at once, with other teachers waiting for a spare copy for lesson preparation? Some update or codification based on the status of the borrower might be useful.
I think it makes sense for society to have unlimited copies available for teachers, journalists, etc as necessary to perform their roles. So this would mean some borrowers can borrow regardless of the stock on hand, while others have to wait in line.
The logical extension of this is we could have titles where the library has paid nothing or a nominal bulk fee, meaning regular users cannot check out copies but the above users could.
"Bad faith" has a specific legal meaning that does not apply here.
In order to obtain statutory damages, they need to show that IA did not have reasonable grounds to believe that unlimited digital lending is fair use.
> In addition to the general "innocent infringer" provision clause (2) deals with the special situation of teachers, librarians, archivists, and public broadcaster's, and the nonprofit institutions of which they are a part. Section 504(c)(2) provides that, where such a person or institution infringer copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant's good faith should rest on the plaintiff.
From page 163 of https://www.copyright.gov/history/law/clrev_94-1476.pdf
Also recited in a recent informational circular at page 22 of https://www.copyright.gov/circs/circ21.pdf
Note that the circular seems to assume the apparent clerical error, "institution infringer copyrighted material", was intended to be "... infringes copyrighted material...", which makes sense as a simple typo--'r' instead of 's'. If so, the potential limitation in the statutory language to reproduction claims only, instead of any infringement claim such as distribution, may have been accidental; or an oversight, the committee being fixated on the increasing use of photocopying and the implications for libraries and schools.
https://kylecourtney.com/2020/03/11/covid-19-copyright-libra...
> We lent books that we own—at the Internet Archive and also the other endorsing libraries. These books were purchased and we knew they were not circulating physically. They were all locked up. In total, 650 million books were locked up just in public libraries alone.
He doesn't get nearly enough credit for being one of the VERY few tech zillionaires who has dedicated his subsequent time and money to creating an enduring and necessary public-spirited resource.
(And that part of his career all happened after he & Hillis created the Connection Machine.)
He epitomizes the intellect and curiosity and good ethics that I associate with old-school hackerdom.
I don't know if he can win this dispute. I hope so.
If you haven’t donated please do.
I object to modern intellectual property and publishing practices as much as anyone, but what did they expect would happen when they dropped their entire legal justification?
Honestly, you may be able to split it between them and ultimately do more good than the sum of the halves.
Of course I do hope EFF gets them acquited somehow, but I don't like those odds (and they probably didn't either and charged ahead regardless, which is my problem).
I would love to "split the halves" like you said, and would if I had any assurance that the half they get supports things like the WayBack machine. However for all I know, they'll just use it to make the whole Netflix catalogue available for free next month. I guess what I'm trying to say is that their management lost my trust.
Specifically what legal justification to you think they dropped that they followed previously?
Then, during the emergency, they waived all waitlists and limits, allowing an unlimited number of loans for a single owned copy. They no longer could claim that they were still engaged in CDL, so there was no legal justification to make all of those copies.
If so, their legal basis looks much much stronger.
Lending out one digital copy for each physical is what they usually do. During the Emergency, they removed those limits (euphemistically called "suspending the waitlists").
But once that is clear, definitely going to continue throwing money at IA (or whatever successor may form). They're an absolutely invaluable asset for all of humanity.
The lawsuits were brought on June 1st, while the NEL was active. Are these lawsuits based on the CDL (which I personally support) or based on the NEL (which could be considered piracy)?
More to the point, the lawsuits are in effect and moving forward now, long after the NEL has ceased operations. They are directed at the CDL now.
As for the lawsuit going on after they stopped lending, well yeah the legal matter wasn't settled, so it can go on.
Their best bet is probably to shame the publishers into dropping the suit, since they won't actually win if it comes down to it.
I assume that's what this is meant to do: shame the publishers.
If you own a book and I buy it but under a deal that defines you should keep it locked up in a safe. I still own it and have the right to lend it out digitally under CDL, yet it's physically with you. Why is it strange to forgo that madness and just let me provide digital lending services on your behalf? I mean just because it's my lending system doesn't mean I should need to own everything that's being lend out. Amazon doesn't have to own everything they sell.
The article seems somewhat fuzzy on that...
I think the debate will be if making a digital copy and locking the original book in a safe is equivalent, and if I were a judge, I would say "no", because to say otherwise significantly weakens copyright in so many other ways.
They are directed at the CDL as a target of opportunity. Their raison d'etre is for damages from the NEL period.
But it is still a pretty big shift in "how to count" that maybe would have gone over better if discussed first. But let's be realistic, the publishers would have done the same thing. They do it over and over again. A lawsuit seems like an unfortunate but probably only sane way to determine if this new counting method is legal enough to pass muster.
I think counting books in libraries you have formally partnered with that are literally locked behind closed doors is extremely reasonable, but I also think copyrights should last like 20-30 years tops so I doubt that I'm in the mainstream.
Seriously, I can't fathom why anyone would say that copyright should last longer than patents
If copyright is primarily an economic tool, intended to create market forces similar to other products and services in order to promote activity within the creative sector, then a much shorter copyright period is perfectly justifiable. The few works that still make significant money after several decades usually also made huge money in the decades before, so copyright would still provide a strong incentive to create and share such works.
One interesting thing about modern economic models supported by copyright is that they do make more of the long tail viable: a work aimed at a relatively small niche or with unusually high production costs can still be economic to produce if you can recoup the costs over a longer period, and with digital storage and distribution this becomes more practical. But even then, how many works would be viable after 40 or 50 or 100 years but not after 20 or 30?
Assuming you wanted to use the assumption that patents last as long as copyrights, I have a hard time imagining how a patent wouldn't be even easier to make money with given that a patent is far broader and inventions probably "remix" old inventions even more than cultural touchstones. Just imagine if "jet engines" or "wings" or "AC electrical grid" or "power transformer" were still under patent as broadly patented approaches to solving engineering problems.
Oof. Society might collapse, but I'm sure someone would make money hand over fist on the way down...
At least copyright allows fair use and remixing to an extent, no such luck with patents.
I don't mind disney having copyright on mickey mouse for 100 years. I do mind locking away a promising technology for 50.
AIUI in all previous communications about the NEL, they claimed they were doing the former, i.e. "effectively" removing all limits to legitimate lending, regardless of the previous 1:1 ratio. But there was plenty of speculation that the real mechanism behind the NEL was the latter, i.e. partnering with outside libraries to expand the physical holdings they could lend out via CDL.
I read this as not increasing the book pool, but saying, "We own Book A. Our endorsing libraries have a total of 9 copies of Book A." However, instead of now offering 10 copies of Book A (which would have adhered to 1:1), they offered unlimited loans, which certainly breaks 1:1.
I think the article implies that without explicitly saying it. Their own announcements and FAQs about the NEL certainly didn't say that.
Is this controlled digital lending?
No. It is close to controlled digital lending but is significantly different while waitlists are suspended. This library is being mobilized in response to a global pandemic and US national emergency. It shares aspects of controlled digital lending by controlling the physical book that was scanned and the redistribution of files through digital rights management software, but differs by having no waitlists for users borrowing books. Once the US national emergency is over and waitlists are back to their normal capacity, the service will return to full controlled digital lending.
1. The books were not locked up and out of the reach of students. Students were able to take their books home. Yes class was over Zoom. Teaching from the same books previously used in the physical classroom. College classes have done this for decades using physical books for online courses.
2. Public libraries throughout the country ramped up digital online access at the start of COVID-19. Students were able to get online library access. It's possible that some obscure books were non-digital (650 million books seems like a stretch). But, obscure books are mostly unused in the classroom. Schools usually assign students classics like "The Giver” which are digitized.
3. The argument is made that IA has a right to lend the books digitally, because it owns a copy of the books. Because any rational person can understand the quantity of books IA digitized casts doubt on if they own a copy. The argument shifts quickly to saying it had a right to digitize because of its 130 “endorsing” libraries.
4. Some of these 130 libraries did not "endorse" IA until after the lawsuit was filed. By the point of the lawsuit the service had been active for some time. Meaning the copyright infringement had already occurred.
5. IA has lawyers on payroll to advise IA on their main product. Which is archiving of copyrighted web content. Meaning that a lawyer likely advised IA before the service started that a library "endorsing" support for a cause !== to a licensing agreement allowing the endorsed cause to use the endorsing libraries’ licensed content.
It should be noted that libraries pay for books. Libraries are a public good and funded by methods such as government funding and donations. Yet they have real expenses.
Imagine a city library. Library cards are limited to city residents. For example, think of a city with 1M residents. That puts a cap on the license costs they will pay for content. Imagine IA serving the world 7B or even just the US 365M. Whoever sells content to the library that is co-sharing content with IA would be charged such exorbitant prices either:
1) the library is unable to license content 2) the library shuts down. 3) the library stops working with IA
IA can be a library. But they have to act like one. Pay for your content like public libraries do.
So you're saying that the amount libraries pay for a book is proportional to the number of residents in that city?
Yeah, the "but think of the children" card played around this seems mostly disingenuous. They already had their textbooks which they took home. Anything in the public domain is on Gutenberg and elsewhere. And I'm even willing to bet that anything more recent that's likely being taught in school can be fairly trivially found online (or will be simply shared in some form) or, worst case, for the cost of media mail on Amazon.
And, if you actually need to do research in a library, it's not clear to me how much this helps.
So this might be a weird question: Do students in the US not normally take their textbooks home? The way you phrased it sounds like they are normally locked up in the school.
Libraries also have movies and music... should they have put those out for free too? I love wayback machine but I’m not sure I follow the logic on this one. I’m no legal expert but that seems like pretty iffy reasoning.
They didn't just give away unencrypted copies to be pirated. They did what libraries do, lend media.
They temporarily removed waitlists which did allow more people to borrow a title than they had licenses, as physical libraries closed and as schools tried to get online. It was an unprecedented time. They had the support of major libraries. They stopped early when they got sued.
The lawsuit should be dropped.
>It's for a limited period of time usually a couple weeks, in an app of some sort. That's what they did, that's CDL.
>They temporarily removed waitlists which did allow more people to borrow a title than they had licenses
That is not CDL, by definition (lending out more copies than they had licenses). Official source, March 30th: http://blog.archive.org/2020/03/30/internet-archive-responds...
Relevant quote: >And so, to meet this unprecedented need at a scale never before seen, we suspended waitlists on our lending collection.
Additionally, they explicitly waived all waitlists when they launched the program, and spoke about is as if controlled lending had been temporarily abandoned (whereas now they’re saying it was still CDL, just with a larger source pool). As far as I can tell, this is all a post-hoc attempt to make the whole affair more legal.
> Additionally, they explicitly waived all waitlists when they launched the program, and spoke about is as if controlled lending had been temporarily abandoned (whereas now they’re saying it was still CDL, just with a larger source pool). As far as I can tell, this is all a post-hoc attempt to make the whole affair more legal.
Well, obviously a post-hoc justification wouldn't make it legal. But on the other hand, if what they did was legal all along, the fact that they misleadingly described it at the outset in a way that made it sound illegal presumably wouldn't make it illegal.
It's not 100% clear to me what the justification is supposed to be. The article clearly seems to be implying that their lending was 1:1 with physical copies. If that's false, then obviously making this statement is not going to help their legal case, because the truth of it will be revealed in the course of the lawsuit. If it's true, then what was novel about their approach as discussed in the press release back in March? My best guess is that it has something to do with the physical libraries all being closed - that this enables more 1:1 lending because of the "650 million" books locked up, even if not each individual book was scanned separately. If that's not what they're claiming, I'm not sure what the point is.
http://blog.archive.org/2020/03/30/internet-archive-responds...
Relevant quote:
>And so, to meet this unprecedented need at a scale never before seen, we suspended waitlists on our lending collection.
The number of library copies of the work in circulation is net zero.
HN now: Digital lending should be treated the same as physical lending
Your local blockbuster had very different (In a legal sense) videos than your local Tesco - they cost more to buy.
This doesn’t apply to books.
This strikes me as an approximation. If, in digital lending, the licence can change-hands instantly and across any physical distance, then it's not analogous to physical lending. Two people might be able to 'time share' a single licence, in a way that wouldn't be possible with a physical book.
Also HN: overwhelming support for one of the world's largest privacy violators, the Internet Archive, which can never comply with GDPR or any other stringent privacy laws under any circumstances because they have no idea what's in their archive and they intentionally make it difficult to remove privacy violating content from it (which they hoovered up without permission and now you can't even stop them from doing it because they ignore robots.txt)
Yay for massive, epic scale privacy violations and being an abusive parasite that intentionally doesn't follow proper site directives!
Even if IA survives this debacle, they're going to get wiped out by privacy violation lawsuits in the coming decade. Their entire archive will have to be dumped, or combed line by line for privacy violating content (at extraordinary cost).
And this is why I still prefer physical media. I own it and I can do whatever the hell I please with it. Not so with almost every digital media platform I've seen.
Well, other than platforms built on piracy.
Not really... IP law still applies. You can't photocopy the book and sell it or give it out without consequence.
Between this fiasco and paywalls around scientific literature, it's becoming impossible for me to see publishers as anything other than cat-stroking Bond villains.
havnt paid for a book in some time, cause most/all ebooks are overpriced af imo.
And also how can i resell my ebooks? why would i pay the same price as a physical copy then..
Not sure what the legal standing is loaning ebooks based on "well someone else isn't using their book".
(Yes, yes, they may have loaned more copies of a particular work than they had, but those loans have expired now.)
If 1000 users come on a shopping portal and buy things they are all buying one at a time, but 1000 transactions are still done.
Mr. Kahle is now claiming that they kept that up during the emergency period, but expanding the pool of physical books to include those being held my libraries around the country. That doesn't seem to quite line up with what I remember, which was the term "unlimited," but we'll see how that shakes out in court.
The paragraph that addresses this isn't clear to me as it seems to indicate it was 1:1 (although at the time everyone seemed to think it wasn't) and then that paragraph seems to note all the books stuck in other libraries... did they feel they were loaning out ebooks associated with all the libraries that were closed too? Was there some sort of legal arrangement there?
This letter seems very non specific on a critical points....
The usual suspects are involved here -
>I call on the executives at Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the pressing challenges to access to knowledge during this pandemic.
The publishing industry should take a cue from the gaming industry. Offer games at a reasonable price, make delivery easy and you only stand to profit. Services like Steam, GOG, Epic et al have massively reduced game piracy. If books were being sold for a couple of dollars each online, we would not need lawsuits like this.
This has absolutely been the case for me. I went from pirating everything to having so many games that I've paid for but haven't played yet. I'm sure part of it is being older with more disposable income and less free time but its just so much easier to buy the game on steam.
I never understood this "lending" practice. Can somebody explain? Sounds like obscurantism to me. So, if there is only one digitally scanned copy of an old book, only one person on planet Earth can borrow it? Because I remember a few times when I clicked on some document in IA and it said I couldn't read it "because it was borrowed".
Allowing an arbitrary number of simultaneous readers would take better advantage of the digital format, but is much more likely to attract a lawsuit.
So if the book is old enough to not be covered by copyright, they can distribute as many copies as the want. Otherwise, in order to use the library carve-out, they need to limit it to the number of physical copies taken out of circulation in actual libraries.
Seems Hachette, Harpercollins, Wiley, Penguin Random House have not fully considered the mass boycott they are inviting by their petty, greedy lawsuit.
Respect to whom? Not to authors! Most of the value of a book is in the first reading and if people can read it for free why buy it? And no, lending out unlimited copies is not what libraries do.
Yes, this is artificial scarcity. Tearing down the Berne Convention, however can not be done this way and also calling heaping additional stress on authors during COVID "respectful" is a slap in the face.
I have been pirating software 1985-2004, I have been a columnist in the 1990s and learned about the new copyright law from the Hungarian copyright collecting agency and explained it to the whole country. I have been on both side of this fence for an extremely long time and I can't imagine what the IA was thinking. Risking the Wayback Machine with this is :(
Their robot.txt BS does not work.
Maybe proposing an annual charity drive for "published" material to fill these new "shared resource" vacuums that you`ve uncovered will satisfy the hybrid-capitalism model that you desire.
Making teaching resources HC compatible (with permission windows or indefinitely) may make compromise-it-forward a movement that is uniquely yours.
Even though Nielsen and the music charts have not figured out how to accurately count digital figures, the tax deduction angle looks promising as part of a formal model.
As far as I am concerned, we should be preserving knowledge and making it accessible to the public, not locking up knowledge forever.
Look, do you want books to sit around uselessly not being read because everybody have to decide if they want to learn based on textbooks costing hundred of dollars?
If you believe people should be compensated for creating knowledge, then buy a copy. I certainly do.
That's semantics, you can just as easily frame that as "creating knowledge that will be added to the wealth of human knowledge".
The point is that IA's idea about unlimited parallel lending (that is, essentially, a free download portal) is a problem unless there's a different way to compensate the authors & publishers. I don't think they suggested a different way and are trying to make it about "knowledge itself", and not their unilateral abandonment of laws & contracts.
Who knows what hands the data will end up in after they're gone.
But in the last 20 years, pirates have abused digital copies of data and given digital copies a bad name.
Today the publishers are sore from that experience. And they fight like they always did before.
But they will use court cases against pirates to justify suit against IA. And that sucks.
Judges worldwide have sided with opposing sides on the issue. No consistency has been reached. It is clear that courts cannot interpret these issues with consistency.
So legislatives must CREATE rules for digital content and digitized content. And they are not the same. The latter is conversion of data into a less than digital format and this takes effort, the kind of effort like buying tires, creating molds for them, and distributing tires made from those molds.
Current copyright laws do not distinguish between digital and paper products. Paper products before year 2000 should be digitizable. After should need to be paid a fee. And lending should be clarified.
In Germany for example, libraries pay a few cents (~3-4) every time they lend out one of their books / films / etc. AFAIK this is also true for digital copies which are also limited to the number of licenses the library acquired.