Internet Archive responds to publishers’ lawsuit | Hacker News Reader

Internet Archive responds to publishers’ lawsuit

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356 pointsedward348 comments

I am an author, and several of my books were published by one of the publishers who is a party to the suit.

Unlike these publishers, however, I support Controlled Digital Lending. I think it's closely analogous to print lending in every way that matters. It strikes the right balance between respecting the first-sale doctrine and respecting authors' copyrights. It allows lending of creative works to proceed into the 21st century under essentially the same terms that it existed prior to the digital age.

To the extent that the publishers are arguing against the legality of CDL, I disagree with them. I hope the courts recognize it is already legal, or even better, I hope Congress explicitly declares it legal.

Yet I think it's worth emphasizing that the Internet Archive engaged in uncontrolled digital lending through their national emergency program. By being willing to lend out more copies than they owned, they were clearly engaging in copyright infringement, and I found their justification for it wholly unconvincing.

So, while I support IA insofar as it engages in Controlled Digital Lending, I oppose IA's shift toward Uncontrolled Digital Lending, and their willingness to do so, under flimsy justification, makes me concerned that they cannot be trusted to handle even CDL responsibly.

> the Internet Archive engaged in uncontrolled digital lending

I thought they partnered with library systems to only lend out 1:1 physical copies that weren't on publicly accessible shelves? If so, that definitely seems like it should be kosher.

But it's possible I am completely misinformed here.

Agreed that completely uncontrolled digital lending is literally just piracy. If advocates want that, they need to reform copyright law if for no other reason than so that publishers and authors know the rules of the game they're playing...

I think under normal circumstances there's some sort of 1:1 physical copy to loaned one.

But under the "emergency library" they loaned out as many books as were requested.

As I understand it, they said “there are probably copies out there unused, we are using those”, but had no agreement and only “partnered” later, after the announcement, as a post-hoc justification.

During COVID, the IA created an emergency lending program under which they would lend an unlimited number of copies of the books in their library rather than sticking to the 1:1 lending they normally allow. This resulted in a more or less immediate lawsuit from publishers claiming copyright infringement on the basis that the IA had no right to share those titles without restrictions.

There was some handwaving around all the physical books locked up in libraries that the IA took it upon themselves to virtually "borrow" but there were no actual partnerships AFAIK.

(And, honestly, why stop at libraries? There's actually very little special about libraries from a copyright law perspective. There's absolutely nothing to keep me from putting a set of bookshelves in front of my house and do an honor system book lending or take a book/leave a book thing.)

I'm also an author, though not represented by one of the parties. My personal reaction was that the "uncontrolled" digital lending was still very controlled. It was media-constrained (some patrons complained about this), time-controlled, and overall a far cry from the idea of just giving books away in what most would view as an "uncontrolled" fashion.

For this reason I also think use of the "uncontrolled" term is unfair, disingenuous, and even does a disservice to the public at large. It further propagates the myth that loosening already-strict controls is the same as having no controls at all.

The internet archive was expressly using "Controlled Digital Lending" [0], a term that they subscribed to that seems to clearly mean "no more copies lent out a time than the number of physical copies owned". They decided to abandon this limitation. The opposite of controlled is uncontrolled, so seems like a fair term to me.

[0] https://controlleddigitallending.org/

That an opposite term exists does not mean that abandonment or a shift away from the original term mandates a shift to the opposite. If my computer stops "running very fast," that doesn't mean that it is now "running very slow."

In this way, "uncontrolled" is not a fair term; rather it seems to be used for a specific, possibly unfair purpose by a specific side in this argument. The fact is, IA had specific, qualitatively-controlling controls on their lending, and anyone who checked out one of the books could see exactly what that meant. Nuances are important here.

In this case, "uncontrolled" digital lending is the appropriate term, because the IA admits that they removed those controls as part of the National "Emergency" Library program.

Also, why does it matter if 130 libraries said they were okay with the CDL program, since that's not at issue here?

Library CDL programs were still online and functioning the entire time. Only the physical facilities were closed.

They removed one type of control. “Uncontrolled” implies that there was no control whatsoever (no time limits, etc.).

There is a 14 day time limit, but you can renew when that's over, with no limitations based on who else has a copy of the book. So it doesn't seem like a very meaningful control, certainly not in the eye of the copyright holder.

> you can renew when that's over

You could now try, if the DRM allows it, and the Internet Archive only temporarily during the lockdowns, through the DRM, allowed more than one person to read the book. That is, you could have had it for 14 days, but now you just couldn't renew it anymore unless nobody reads it.

Controlled in the context relevant to this case relates to the number of copies, not the duration of each lending term. It doesn't matter how long the lending term is if you lend infinite simultaneous copies.

As far as I know, no one, much less the Internet Archive, is currently capable of lending infinite simultaneous copies.

The publishers concern is exactly that IA could do that, since the number of copies they were lending wasn't actually tied to anything they owned or were licensed to lend.

What would you consider to be the correct term to use? I've seen a lot of posters arguing with the term "uncontrolled," and I agree that IA was utilizing some type of control when lending out their books. However, "controlled digital lending" is a very specific form of digital lending that most (if not all) libraries use for lending their digital resources [1].

I guess the correct term to use would be something along the lines of "lending that doesn't follow the legal definition of controlled lending" or something along those lines, but that is a somewhat unwieldy phrase to use as a part of most posts.

[1]: https://controlleddigitallending.org/

Controlled does not mean every possible constraint.

Uncontrolled does not mean zero constraints whatsoever.

Especially when used in opposition to the precisely defined phrase Controlled Digital Lending, where controlled is a well defined set of constraints.

"Library CDL programs were still online and functioning the entire time. Only the physical facilities were closed."

As far as I know, most public libraries' electronic lending programs are using something similar to Rakuten OverDrive and are limited to books published in electronic editions and then leased by the library systems. Do you know of any libraries other than the Internet Archive that make scanned copies of physical books available?

If you find yourself in the position of needing a copy of Charles Ross' biography Edward IV (https://www.google.com/books/edition/_/m8Ojo6VI8KUC?hl=en), as far as I know you're pretty much limited to the Internet Archive (https://archive.org/details/edwardiv00ross) unless you have an open research library handy. But you'd best make it quick, because the publishers want those copies deleted.

They aren't using the word "controlled". They are using "controlled digital lending" which has a specific meaning that the Internet Archive subscribes to, which they summarize as:

> Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

So what they are doing definitely is not "controlled digital lending", by their own definition. At best, it's semi-controlled, but the real essence of the "control" is the number of copies, so "uncontrolled" seems fair.

This implies that their definition begins and ends with that paragraph. I would tend to go to them and ask them to verify that this limiting definition was exactly what they had in mind (as opposed to a simple blurb); that additional lending controls are in use by IA, including controls which are not explicitly written into that paragraph, is something that is easily validated online.

If they do agree with you that the paragraph you pasted is their end-to-end definition of "controlled," that means they haven't yet incorporated these other controls into their definition, and they definitely still can and should.

There's no singular time limit or definite requirement to define such things in this case, and IA have engaged lots of controls, from HTTPS and authentication on up to content-level media and time controls.

That's not just a blurb that someone typed accidentally. It's an official position statement that they signed onto and the definition is also reiterated in the accompanying white paper [0].

Sure, they can change their position. But A) I can't go off of what is potentially in some stranger's head and B) they would be redefining the term.

[0] https://controlleddigitallending.org/whitepaper

edit: I hear where you are coming from though. I agree it's got some "control", so you don't like the term "uncontrolled". But I think we probably agree that it isn't "controlled digital lending" even if it is "controlled" to some extent.

this is the kind of thread i expect on HACKER NEWS

> The opposite of controlled is uncontrolled, so seems like a fair term to me.

No longer strictly doing something does not imply it's opposite.

For example, the opposite of help is harm, and no longer helping something does not imply you are harming them, does it?

These terms are the extremes of a spectrum. Noting that you are no longer on one extreme of a spectrum does not immediately imply you are now at the other extreme.

Harming or helping someone is a spectrum with a neutral point. You can help someone. You can harm someone. You can help someone more or help someone less. Or you can neither help nor harm someone. Because there is that neutral point, when we say someone stopped helping, there is a state other than harming in which they can be, so harming is not implied (although it still may be the case).

Control of a variable—in this case the number of copies lent—is strictly binary. There is no neutral state in which the variable can be neither controlled nor uncontrolled.

> Control of a variable—in this case the number of copies lent—is strictly binary. There is no neutral state in which the variable can be neither controlled nor uncontrolled.

This is the crux of the point. Control over a variable is not what's in question. Control over many variables is, some of which were controlled and some weren't. In that respect, if you go from a controlled process where the variables in question are all controlled to one in which some of them are, it is not now "uncontrolled", it's partially controlled, it's also partially uncontrolled. There is less control, but it doesn't make sense to call it uncontrolled where there is still control over some variables retained, and we're still using the same context which applies to the same set of variables.

Yes, but in CDL the relevant variable is the number of copies lent. Changing, for instance, the duration of lending wouldn’t change whether you were practicing CDL if you continued to loan digital copies only on a 1:1 basis.

Arguing otherwise is a bit like saying discrete mathematics isn’t discrete because we can represent the number one by a line of arbitrary length. That’s strictly true but has nothing at all to do with the actual definition of discrete mathematics.

> Yes, but in CDL the relevant variable is the number of copies lent.

No, CDL very clearly outlines 6 different criteria by which it should work.[1] One of those criteria is:

limit the total number of copies in any format in circulation at any time to the number of physical copies the library lawfully owns (maintain an “owned to loaned” ratio);

It does not state 1:1, just that some ratio is maintained, and even if that one criteria were to be ignored, there are 5 other criteria just as important to the process, such as ensuring that each digital copy goes to a single person, and that the digital copy prevents additional copying, and that it's limited by time.

Whether they qualify for the moniker of CDL when not following one of those six criteria is debatable, but notably it's not what we're debating here, which is whether it's accurate to call what they did "uncontrolled" because it was called controlled previously (even if that's a name library marketing made up for this). Given all the other controls in place (likely every other criteria listed for CDL), I would say it definitely was not "uncontrolled".

1: https://controlleddigitallending.org/whitepaper

> No, CDL very clearly outlines 6 different criteria by which it should work.

You've not made any counter claim here. You've left me guessing which criteria you mean to include some type of control, so I'll go through them all.

ensure that original works are acquired lawfully; This isn't really about controlling anyone but themselves and is also part of what did not appear to happen in the NEL.

lend each digital version only to a single user at a time just as a physical copy would be loaned; This isn't meaningfully different than maintaining the ratio.

limit the time period for each lend to one that is analogous to physical lending; and In the absence of maintaining the ratio, the length of duration is meaningless, since the same person can just check out the book again.

use digital rights management to prevent wholesale copying and redistribution. Again, without maintaining the ratio, what control does this achieve?

>> limit the total number of copies in any format in circulation at any time to the number of physical copies the library lawfully owns (maintain an “owned to loaned” ratio); > It does not state 1:1, just that some ratio is maintained,

This is a difference without distinction. Sure, they could be loaned at a ratio less than 1, but they cannot, by definition, loan at a ratio greater than one.

> Whether they qualify for the moniker of CDL when not following one of those six criteria is debatable, but notably it's not what we're debating here, which is whether it's accurate to call what they did "uncontrolled" because it was called controlled previously

These are not separate debates. There's context behind the use of the term 'controlled'.

> In the absence of maintaining the ratio, the length of duration is meaningless, since the same person can just check out the book again.

That only makes sense if you assume the ratio is infinite if above zero. This matters in any case where the ratio is not infinite.

> Again, without maintaining the ratio, what control does this achieve?

Combined with limiting the time period the lending is allowed, which you conveniently left out, it's controls the scope entirely. Even if you allow unlimited copied, you can change that and if the copies are all limited to one week and are cannot be copied by users, in a week you can have effectively reduced number of items lent to zero if you want. Without these constraints you can't. They are integral to the whole idea of CDL.

> This is a difference without distinction. Sure, they could be loaned at a ratio less than 1, but they cannot, by definition, loan at a ratio greater than one.

Sure they can. Their justification for why they believe it's legal does not allow a ratio of above one, but almost all the other criteria still applies when it is above one, and specifically, what the IA did was lend at a ratio above one. Your other points about how stuff doesn't matter if the ratio is one are specifically avoiding this point.

My point is simple. CDL would not work from a legal perspective if there was not some way to limit the time in which the item was lent and prevent copying just as it would not work if there's not a physical copy backing the lending. To say it's uncontrolled because only one aspect of all those parts that make the whole makes no sense.

That's akin to having a dog restrained with a leash, harness and muzzle, and after the muzzle is removed, saying the god is unrestrained. The dog is restrained still, just less so than before. The IA lent books in a controlled manner (an account is required, there was DRM, there were limits on length), it was just less controlled than before, because they did not back each digital copy with a physical one.

That there were clearly some controls in place means that it's erroneous to call it uncontrolled.

Feel free to respond and refute as you see fit, I'll read and consider what you say, but I won't respond on this particular thread anymore. I think we've spend enough time on this that it's unlikely to tread fruitful new ground that will change either of our minds, and we could probably go back and forth on minutia for quite a while.

ignore trolls who insist on using tautologies to bend language to superficially make a point.

> It was media-constrained

It 100% wasn’t. IA after the fact tried to justify their uncontrolled lending by saying they were lending out copies that were owned by the shut down libraries all over the country.

First, nobody gave them ownership of those copies.

Second, most libraries already have legal digital lending systems and so their digital stocks were going out too (which also negates IAs after the fact justification).

By media-constrained I'm referring to the fact that, as far as I could tell, once you checked out one of these books, there was no way to grab a PDF and run. There was no way to grab an EPUB and bob's your uncle, you're in Kindle or iBooks and reading your text. This constitutes an easily validated, qualitative, experiential difference from what parties to the case are implying. If this isn't the case, let me know.

That's not what the publishes are implying at all. They could care less about the technicalities of whether the IA copies were ePubs or Mobis or whatever.

The publishers are saying that, regardless of the form of media, the IA engaged in uncontrolled digital lending, meaning that they lent out more digital copies of books than they actually owned, digitally or physically (or that were lent to them by their so-called partner libraries either digitally or physically). Because they did not actually own or possess the copies underlying these loans, they were required by copyright law (in the US and the EU) to either acquire more physical copies or to license more digital copies.

"Uncontrolled digital lending" seems a very strange term for

* lending in specified forms, which require illegal activity to make further copies, and

* lending for a specified time, which requires illegal activity to extend.

Welcome to NewSpeak, where "uncontrolled" means fairly tightly controlled.

Controlled Digital Lending is a well established term meaning one physical copy for each copy digitally lent. This lent more than the physical copies, so it was “not controlled digital lending”. There is little linguistic difference between “not controlled” which is awkward and “uncontrolled.”

Uncontrolled does not have to mean zero restraints. The word never meant that. Especially in a well defined context where controlled has precise meaning (and that meaning is not “every constraint”). Neither word need mean the absolute extreme.

This is not NewSpeak.

There is considerable difference between "uncontrolled" and the status of digital books lent by the "national emergency library". For one thing, all of those copies have expired and are unusable to either the person who checked them out or anyone else without illegal actions by those people. To argue that these digital copies are, or were, "uncontrolled" is ridiculous and quite inverts the meaning of "uncontrolled".

Ironic to me that it is completely possible to make pdf copies of a physically borrowed book, and at least in academia making physical copies of chapters of books was extremely common and one of the primary uses of photo copy machines.

I think "media-constrained" means you could only read the books through the Internet Archive web reader, or an encrypted version only readable in Adobe Digital Editions. You couldn't just download a plain PDF or EPUB to read anywhere and share with friends.

https://help.archive.org/hc/en-us/articles/360016554912-Borr...

First, nobody gave them ownership of those copies.

Then who are the 130 partner libraries they are talking about?

https://blog.archive.org/2020/07/22/libraries-have-been-brin...

Over 130 libraries endorsed lending books from our collections, and we used Controlled Digital Lending technology to do it in a controlled, respectful way. 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.

All of that happened after the fact. They didn’t try to work with libraries until after they got sued.

Also being endorsed by a library does not mean giving ownership of their physical copies.

Do you have to have ownership to lend out an item? If my friend owns a book and lends it to me, can I not lend it out to someone else during the period I'm expected to have it? I would expect what matters is who has control over the book at that specific time (in addition to any constraints put on the lending at the time it happened).

> If my friend owns a book and lends it to me, can I not lend it out to someone else during the period I'm expected to have it?

That isn’t what happened - in your metaphor: IA started lending friends’ copies without asking.

IA only after the fact got endorsements from libraries and they certainly didn’t have agreements in place giving them any inventory.

That could have been what happened. Their example didn't say they got their friend's permission prior to lending whatever was being lent to them. Even if it's after the fact, as long as they don't lend out too many copies they won't exceed what supporting institutions already have.

>Their example didn't say they got their friend's permission prior to lending whatever was being lent to them.

You think it is okay to lend out other peoples property? You need a serious reality check if so.

I think people are missing the distinction between what you are saying happened and the theoretical situation I was noting. I said lend out something someone lent to you, you are saying they didn't actually get lent anything, they lent out something they weren't yet lent.

What you're alleging they did is equivalent to someone going to their friend's house and taking something of theirs to lend to someone else without asking them. I agree that if that's an accurate assessment of what actually happened, it's a lot less defensible.

Interestingly, if you consider any physical thing, in none of those scenarios does the manufacturer of the thing that was lent or not lent—with or without permission—have any say-so with regard to the lending of that thing.

That's because we confer and infer specific rights in different situations there. Selling something confers ownership, and lending something confers right to use, possibly limited by stipulations at that time. Re-lending something may or may not be allowed depending on what the original lending agreement was. In the metaphor, limiting in this way is like your friend saying "here, but don't let anyone else use it, I trust you, not them" when it's lent. For businesses doing some sort of lending it's generally more complex and a contract (like what you sign when renting a car), and may or may not cover usage by other people.

I have no idea what limitations, if any, are put on the lending of digital goods by law or by the specific terms of IA, or the terms the other libraries in question offer.

> In the metaphor, limiting in this way is like your friend saying "here, but don't let anyone else use it, I trust you, not them" when it's lent. For businesses doing some sort of lending it's generally more complex and a contract (like what you sign when renting a car), and may or may not cover usage by other people.

Sure, but at no point does the producer of a physical object that is being lent get a say-so in the agreement between my friend and me, or the contract between a lending business and me.

In the car rental metaphor, it'd be like Ford suing Hertz for lending me a Focus that Ford already sold to Hertz.

It's not OK morally to lend something someone lent you without their permission, but I don't think it's copyright infringement either.

If the people you borrowed from say its OK after the fact then yes it is OK.

If I borrow a neighbours defibrillator, without asking, to save their child it would be insane for the manufacturer of the defibrillator to sue me for not buying my own defibrillator. While in theory the neighbour could object to me borrowing the defibrillator without permission, that does not appear to be what happened. Based on IA's statements it appears that libraries are saying after the fact that they were happy for their copies of books to be loaned by IA.

I would assume from their actions these publishers hoped to make a windfall on book sales when people were no longer able to access libraries and they saw IA's actions as attacking this potential profit. I can't think of any other reason why they would peruse their current course of action.

> IA started lending friends’ copies without asking.

That's relevant if the friends have grievances, but not so much the publishers.

> IA started lending friends’ copies without asking

And then it turned out the friends were fine with it anyway.

Regardless of the answer, that's not what happened.

"Second, most libraries already have legal digital lending systems and so their digital stocks were going out too (which also negates IAs after the fact justification)."

Most libraries' digital lending is completely separate from their physical lending or from the Internet Archive's scanned book program. Those digital lending systems have no relevance to this case.

> Second, most libraries already have legal digital lending systems and so their digital stocks were going out too (which also negates IAs after the fact justification).

IIUC libraries buy separate digital copies for digital lending. IA's justification is that they were providing a substitute for the physical copies which are now sitting unusable. It might be legally suspect but it's not an illogical position.

Okay that makes more sense. This is an important detail.

'After the fact' may be of only limited legal importance in assessing the relative values being weighed in the case.

Let's say that for book X, IA held-in-reserve 2 copies. And at the peak of the "Emergency Library", they never loaned out more than 10 total copies.

I'm sure publishers would allege: "You created 8 net copies! Pay us!"

But then 500 physical libraries who are sympathetic to the IA show up, and say: "Amongst us, we had 1000 idle copies of X trapped on our shelves. We wish we could have done the same sort of 1-for-1 lending IA did, to help the nation in its hour of need, but we weren't set up for it, and couldn't throw it together with limited resources during mandatory-closure orders."

"So, as soon as we heard about IA's program, we endorsed it & recommended it to our physical patrons. As far as we're concerned, we delegated the right to loan our copies to IA, including retroactively."

"No net copies of X were created. Rather, if there had been no pandemic emergency forced closure of physical libraries, our copies of X would've been loaned out for a total of 40,000 library-patron-days. None of that happened, but IA's emergency lending managed to reclaim, according to their exact usage numbers, 5,277 of those days-of-use for students, scholars, and citizens. Less than 15% of the pandemic-destroyed-value."

"Now, publishers are trying to profit off the pandemic, by not only having collected their payments for all those idled books, but collecting a windfall of extra purchases, and/or damages, from a non-profit library that was just trying to offset massive pandemic losses in a technologically efficient way."

It's the battle for subjectivity.

Again, You’re ignoring the fact that >90% of libraries already have controlled digital lending programs. Libraries went through the effort to get there legally. IA ignored the processes and rules and just distributed essentially pirated copies.

I'm aware of very few libraries that do CDL. What's your source for saying over 90% are doing it?

which is great if you want a book published post 2000, but horrible for the rest of the catalog

Citation needed, and specifically that so many libraries are capable of doing "controlled digital lending" of their idle hardcopy books.

Yeah I was going to make a similar point - many libraries use services such as Hoopla and Overdrive for digital lending. Hoopla has been a god send for me during quarantine.

While IA has temporarily lifted the restriction on number of copies (but not others like lending time), the complaint also goes against CDL in general, making it very dangerous. See for e.g. paragraph 8 and 10.

"IA’s self-serving assertion and promotion of “Controlled Digital Lending” as both an actual legal doctrine and a justification for its infringement affronts the most basic realities of the law and the markets it propels. As a matter of markets, IA’s one-to-one conflation of print and ebooks is fundamentally flawed. Digital books are inherently different from physical books. They can fly around the world in a second; they do not degrade over time as physical books do; and they require devices to read them."

https://publishers.org/wp-content/uploads/2020/06/Filed-Comp...

they do not degrade over time as physical books do

It's worth pointing out that libraries will rebind a physical book if it starts falling apart. It's weird to argue that publishers' rights should last the full term of copyright, but readers' rights only last until a book wears out.

Why is that weird? Copyright law for centuries has provided that the copyright owner's rights last the full term of the copyright. (The copyright owner may be the publisher or the author.)

A reader's right to a physical copy only lasts as long as the physical copy. If they want to extend the term of that right, they should take better care of their physical copy.

Modern copyright law in most places allows the creation of a backup copy of digital media to prevent loss due to wear.

That is actually not true in the US. The exceptions for making backup copies are limited to software (17 U.S.C. § 117(a)), and to libraries (17 U.S.C. § 108).

The market of effect of copies for personal use is insignificant and my understanding is that they are generally exempt as fair use.

In the US at least, fair use does not include a right to make personal backup copy. If you wish to extend your use of the item containing some IP, your options are basically to just take better care of the physical item.

However, it's simply not worth it for a copyright owner to go after someone making a backup copy for personal use since the statutory damages are only $750 (per act of infringement), and don't include legal fees. (Contrast to the infamous Napster/Limewire cases: each peer connection in P2P sharing constitutes a separate act of infringement if you share to them, which is what made it potentially lucrative for some law firms to attempt to shakedown users of those programs.)

This is an intended effect of setting the statutory amount at $750: it's too low to make it economical for copyright owners to go after isolated cases without market effect, but at the same time quickly makes it very expensive for infringers to commit multiple acts of infringement.

I'm not saying Congress has passed a law explicitly making personal copies legal, but it does appear courts (in the US) do consider market effect when determining fair use.

This isn't exactly the same as personal use but it's pretty relevant: https://arstechnica.com/tech-policy/2015/10/appeals-court-ru...

> "While Google makes an unauthorized digital copy of the entire book, it does not reveal that digital copy to the public," the opinion states.

Also, Pamela Samuelson, a professor at University of California at Berkeley has stated: "Personal-use copying should be deemed to be fair, unless there is a demonstrable showing of harm to the market for the copyright at work"

>>In the US at least, fair use does not include a right to make personal backup copy.

While not "fair use" the library of congress which is empowered to make exemptions to DMCA has made such exemptions for Personal backup

Further the Copyright law only grants the Creator 5 Rights, these are around the public dissemination of the work, not the private use of the work. it is not a total control over the work like authoritarian copyright maximalists like yourself believe it to be

The Supreme Court has held in many contexts that non-distributed reproduction falls outside the control of copyright, so I can make as many PERSONAL copies of a work as I desire provided I never sell, gift, or distribute them in any way

I would love for you do show me in copyright law where it grants the right to control personal reproduction, as the copyright law is very clear about what rights it grants, it is all about distribution and performance

https://www.law.cornell.edu/uscode/text/17/106

In the US context- A) Copyright terms have increased 5 fold over the centuries. B) The Supreme has ruled, at least in many contexts, that creating a backup copy of a work is fair use. I believe generally this applies so long as the backups are not sold or distributed separately from the original.

So, at least in some context this is false- the reader's right is to the information contained within the physical copy, not just the physical copy itself.

depends on the 'copyright'. If it covers the book's info and the book physical.

This is similar to a 'digital' copy and a 'CD' copy. I'm just saying, the current 'movie/film' money corps will push for 1 side of this argument.

Yes, although I have my gripes with IA, I fully support the CDL model, and I think there is strong legal justification for it.

The inherent differences the publishers list -- the speed at which ebooks can be lent, the fact that they don't physically degrade, and that they must be read on a device -- are real, but they don't strike me as relevant to the actual legal principle that governs library lending. The first-sale doctrine holds that if you purchase a creative work, you can lend or resell it, and doing so does not violate an author's copyright. Even if there are real differences in how ebooks and physical books are transferred, maintained, and read, I don't see why those differences are material to the first-sale doctrine's granting owners of creative works the right to lend them.

That's not how the first sale doctrine works, nor is it how it has ever worked.

In a nutshell: the first sale doctrine merely means that if someone comes into legitimate possession of a physical good containing IP, they are free to sell or otherwise exploit the physical good without requiring a license for the IP contained therein.

Crucially, the first sale doctrine does not extend to exploiting the IP itself, so if the IP is separated from the physical good (such as by recording or scanning a copy), the first sale doctrine no longer applies.

The first sale doctrine does not apply at all to library lending programs. Libraries providing digital lending pursuant to explicit licenses provided by publishers for digital lending.

You have to admit, they've got a point: Digital books are inherently different from physical books. So maybe copyright should never have been applied to digital books at all.

Now if the courts decide that applying copyright, which is as old as the printing press, to digital media, which are neither printed nor pressed, makes no sense, and they declare all forms of Digital Restrictions Management to be illegal, and it all happens because of this lawsuit, specifically because of this slip of the tongue, which only happened because the Internet Archive intentionally overstepped some legal boundaries at an opportune time, I'd say: Well played, Internet Archive.

Not going to happen, though. Courts don't rule against established companies, ever.

I agree with the majority of your comment, but

> copyright, which is as old as the printing press

The idea of copyright was not fabricated until about 200 years after the the printing press was invented, and then it was a tool for censorship. https://en.wikipedia.org/wiki/Copyright#Background

Point taken; bureaucracies were even slower back then. But...

> it was a tool for censorship

When did that change? Did it ever?

No, copyright is censorship, so it can't have changed. Censorship isn't always bad, though. Copyright is censorship in the same way that making it illegal for someone else to say they are you (identity theft) is censorship. Copyright is a bit more abstract though, so is easier to abuse.

> Censorship isn't always bad, though.

Yes, it is. Censorship is obscene, no matter how well-intentioned the perpetrators.

> Copyright is censorship in the same way that making it illegal for someone else to say they are you (identity theft) is censorship.

It isn't illegal for someone else to say that they are you—per se. Actors do that sort of thing all the time. It only becomes illegal if they do so deceptively with the intent of achieving some sort of financial or personal gain, i.e. to commit fraud. The illegal part is the attempt to obtain goods or services under false pretenses.

Copyright is completely different. It penalizes the unauthorized distribution of factual information—even if these facts are just the arrangement of words in a work of fiction, or a series of numbers describing a certain sound wave. There is no deception involved in copyright infringement, no goods or services obtained under false pretenses, just the communication of information through channels which certain parties would prefer to suppress.

Gosh, I'm pretty much as anti-copyright/pro-freedom of information as anyone you would ever meet.

However, I think there has to be a reasonable way to implement copyright so that artists can get paid for their creations in a reliable way.

A third party shouldn't be able to host/index a bunch of someone else's IP, sell ads, and make bank at the expense of writers, musicians, etc.

On the other hand, Michael Jackson is dead. Why is his music still copyrighted? The material has earned zillions of dollars already. The ownership of those rights by corporate randos is ridiculous. Copyright holders have, in my lifetime, behaved in a ridiculous way--even abusively towards original artists via DMCA take downs. But the notion of copyright is still important.

All that said, platforms that pay artists pennies while making billions on the activity they attract are probably a bigger threat to art these day. That also needs to be dealt with.

> Gosh, I'm pretty much as anti-copyright/pro-freedom of information as anyone you would ever meet.

Clearly you've never actually met anyone who was anti-copyright / pro-freedom of information. To begin with, they're not going to be looking for "a reasonable way to implement copyright" or saying things like "the notion of copyright is still important". Kind of goes against the whole anti-copyright mentality.

> A third party shouldn't be able to host/index a bunch of someone else's IP, sell ads, and make bank at the expense of writers, musicians, etc.

There is no "at the expense of…". The third party is performing hosting and indexing services and getting paid for that work. They benefit, the users of the site benefit, no one else loses anything. In the absence of copyright anyone else could do the same, so it's naturally going to be a low-margin business.

If we want artists to get paid in a reliable way, without wrecking the rest of society in the process, we need to look beyond copyright, to patronage, crowdfunding, sponsorship, open collaboration, and other models. The presence of copyright doesn't guarantee that artists get paid. It does ensure that we're actively crippling our technology, erecting barriers between people, undermining the art itself by making it all about money, encouraging contempt for the law (not entirely a bad thing IMHO when the law is unjust), and creating a parasitic copyright industry which leeches off of both the public in general and artists in particular, in the end serving no one but itself.

I am fully against the practices of illegitimate DMCA notices, suing torrenters, etc.

As I said, I also think terms of copyright should be deeply constrained and nontransferable upon death.

But like, megaupload? Why should such a business model be allowed to exist? 100% parasitic.

This is drastically different from what we know today.

Patronage? Who if not the people acquiring the material? Crowd funding? Won’t that be in competition with the pirated commodity? Sponsorship, like ads in the content?

I’d rather pay an artist for content for a reasonable price and duration, while shutting down excessive suits.

Get off your high horse. It’s a complicated issue. The whole web runs on sponsorship and ads and it sucks horribly. There are balanced approaches worth considering. Content has value.

You said:

>> Gosh, I'm pretty much as anti-copyright/pro-freedom of information as anyone you would ever meet.

You aren't even close. Stopping just short of copyright maximalism doesn't make you anti-copyright. It makes you slightly more reasonable, but you're still on the opposite side of this particular debate.

> But like, megaupload? Why should such a business model be allowed to exist? 100% parasitic.

What's so parasitic about a file hosting service? They get paid a premium right now because they're taking on a bunch of legal risk on behalf of their users. You can blame any surplus profits squarely on copyright law itself.

> Patronage? Who if not the people acquiring the material?

The patrons normally would be the ones acquiring the original copies, yes. At that point it would be up to them to decide what to do with those copies. Patrons would normally also receive credit for funding the production of the work. This model works well in situations where there is social capital (or simply a sense of self-worth) linked to being known as a "patron of the arts".

> Crowd funding? Won’t that be in competition with the pirated commodity?

You're thinking of pre-sales. Crowdfunding is more akin to patronage, just with a broader audience. Backers might get some perks, such as public credit or merchandise, but there is no guarantee of exclusivity. The resulting work may or may not be made available directly to the public, though the distributed nature of crowdfunding pretty much guarantees that at least one backer would "defect" and make their copy available shortly after the initial release.

> Sponsorship, like ads in the content?

Product placement is one form of sponsorship. It can be done well, or poorly. Quite a bit of quality content has been produced for free distribution through unobtrusive sponsorship arrangements. Sometimes content that people are interested in for its own sake also incidentally happens to benefit someone, so they're willing to pay for its production even without any direct promotion.

Information should be free to share and copy, but not at a profit if it infringes on the owner of the IP. That’s VERY short of maximalism. That is a radical reform.

Megaupload employees and owners uploaded pirated content, and profited hugely. Not small margins—they made millions.

I’m against YouTubes, Spotifys, and even megauploads screwing content creators. Tech doesn’t have the right to assume ownership of the world via content platforms.

All content production is struggling under the glut of technological wealth extraction via platforms. A good copyright implementation would help avoid this. It’s nothing like what we have, but the concept of copyright is not the same as the abusive system we know.

I feel like you are railing against copyright the way conservatives rail against socialism. Doing so mischaracterizes the sensible arguments that are classified as such.

The goal should be to promote diverse content creation by allowing creators (Not their platforms or corporate ownership) to be compensated, and to simultaneously allow for cultural exchange with concepts like free use and limited copyright durations, and by protecting/promoting library lending. Such things are possible, and I think optimal.

Every single sentence in your post is pro-copyright. I get it, you support a more limited form of copyright than we have right now. Just don't go around calling yourself "as anti-copyright … as anyone you would ever meet". Especially not to someone who is actually anti-copyright. I don't have to look around to find an obvious counter-example. It's me.

> Information should be free to share and copy, but not at a profit if it infringes on the owner of the IP.

That sounds like what the Open Source Definition would classify as discrimination based on field of endeavour. Terms like that are way more trouble than they're worth. If anyone can share and copy the content at cost, the only way to earn a profit is to provide some value-added service. Which means you're not profiting from the content, but rather from the service you've added on top. I'm not sure why you would have an issue with that.

> Megaupload employees and owners uploaded pirated content, and profited hugely. Not small margins—they made millions.

That's only because competition for hosting and indexing services was severely limited by copyright. I don't see the relevance to the scenario you're describing where there are no restrictions on (non-profit) sharing or copying. Their margins would be basically zero under those circumstances, or at least no more than any other hosting service. Any profit they did make would be due entirely to their own efforts.

Your re-characterizing of the publisher's claims is as disingenuous as the IA's, since that's not what they're claiming at all.

You left out the second half of that paragraph: "For these reasons, the Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books."

Normal public libraries can do digital lending (and have, for decades) because they get proper licenses from publishers or authors to do so.

The IA is claiming that they don't need a license for physical books they own under the first sale doctrine, which is blatantly false: the first sale doctrine means they can sell or lend the physical copy of the book they possess, not that they can distribute the underlying IP of the book without permission of its creator. And even to the extent that the IA claimed it was limited lending on a one-to-one basis, it abandoned those limits and simply lent out as many copies as people wanted.

Also from the publisher's lawsuit: "Separately, Section 109 of the Copyright Act is clear that, pursuant to the doctrine of first sale, the owner of a lawfully acquired print book may dispose only of her/his particular print copy."

In its response, the IA denies that section 109 [https://www.law.cornell.edu/uscode/text/17/109] in fact says precisely that. It lets you know that their argument isn't premised in any sort of legal grounding.

I don't think my post re-characterizes publisher's claims at all, the part you mention simply claim that they offer a way to license those books in another way and they're trying to separate ownership into physical and digital, denying any form of digital ownership (by licensing instead).

> Normal public libraries can do digital lending (and have, for decades) because they get proper licenses from publishers or authors to do so.

Normal libraries do not need any licenses to lend books they own at all, but they can get a digital-only license, which is not ownership

> The IA is claiming that they don't need a license for physical books they own under the first sale doctrine, which is blatantly false: the first sale doctrine means they can sell or lend the physical copy of the book they possess, not that they can distribute the underlying IP of the book without permission of its creator.

CDL is not distributing the underlying IP of the book at all, its lending a single copy of the book using DRM to prevent anyone from copying or reading after the lend time is over. Only a single person can read the legally owned copy of the book at any given time.

> And even to the extent that the IA claimed it was limited lending on a one-to-one basis, it abandoned those limits and simply lent out as many copies as people wanted.

Yes it did it for a limited time (which I believe was an obvious mistake), and that's not what I'm talking about. What I'm saying is that the complaint ALSO goes against CDL in general, not only against their IA's national emergency program, as its clear from the parts quoted by you and me.

Thank-you for your first few paragraphs. I am an avid reader and always try to buy new physical books to read to support my favorite authors.

The publishers are overreaching when they try to end reasonable online lending, and it is good to see what individual authors think.

For the last two paragraphs, I have to disagree with your conclusion and will try to justify my reasoning.

First, have there been any numbers released for how many excess digital copies were lent, for how many books? Does anyone still have access to those uncontrolled copies? Did any of those exceed the total physical copies in their partner libraries' inventories? If the true total loans is limited and never exceeded physical copies, then it's hard to see how this aggregation of potential inventory was any more harmful than controlled lending.

Second, publishers and rightsholding corporations have been fighting for their own interests for literal centuries. They cannot be relied upon to strike an appropriate balance of concerns on their own. First it was the authors they stole from. Publishers were the original pirates, and authors had to fight back. Now publishers are stealing from the public, and there is often nobody to fight back on behalf of the public. Corporate cooyright terms now exceed the lifetime of most people. Publishers fight to erode basic fair use. Media companies bully others to build automated extralefsl systems to harass independent producers and reviewers. The balance of power is far too much in the hands of publishers, and the IA and other libraries need support when they try to act as a counterbalance.

Finally, this was a very limited duration experent in a very unprecedented time. How can you not support an organization that reaches out to help the disadvantaged during a global pandemic and lockdown? There was no taking from authors. No sales were lost -- people like me will buy books no matter how easy they are to borrow. This was humanirarian work at its digital best.

I appreciate your thoughtful response and want to address a couple of points.

I am an author, but I am also an advocate for copyright reform. I would like to see copyright duration changed to something more sensible, such as its pre-1976 length (28 years + optional 28 year renewal). Yet as much as I support copyright reform, I also think it has to be done through legislation, not through the IA deciding the publishers have too much power and thumbing their nose at copyright law.

Regarding your assertion, "There was no taking from authors." One thing that I see widespread confusion about, even among educated people, is what gets taken away from authors when copyright is violated. Yes, loss of potential sales is one thing that affects authors when copyright is violated. But beyond that, what actually gets taken away is the right itself. Copyright gives authors the exclusive authority, for a limited time, to publish and reproduce their creative works. If the IA violates copyright, then even if it doesn't take away sales, it still takes away the right itself. It's important to recognize that the intellectual property right has value in itself, outside of how sales are affected.

I am all for humanitarian organizations helping people during a pandemic. But IA should do so by lending out things it owns and has a right to lend, rather than lending out things it doesn't own and doesn't have a right to lend.

>such as its pre-1976 length (28 years + optional 28 year renewal).

I'm definitely in favor of shorter lengths. Not so much renewal though as it tends to favor big publishers and media companies who are far less likely to forget to renew than some individual or small company is. (That's been one of the big pushbacks against a lot of orphan works proposals. In that case I don't really agree with the content creators but I do get the argument.)

I am also a creator (software, music, and video). I would also be fine with 28+28 terms, but might argue that software shouldn't get the +28.

Ideally all positive change would happen legislatively. Unfortunately that doesn't seem to be the reality we live in. I've argued in comments on other posts that some laws require visible lawbreaking before legislation changes. In that reality, it's hard to talk about working within the system of existing rules because the rules were placed by unmatchable lobbying. Since those on the other side of the debate lack the capital to overpower those who control the media (control the media and you control the message), some other way is required to get visibility and push for laws to change.

> But beyond that, what actually gets taken away is the right itself. Copyright gives authors the exclusive authority, for a limited time, to publish and reproduce their creative works.

That is a right authors have been granted only in order to encourage the creation of more works so any violation of that "right" should be judged on how it impacts that goal. It also is not really a right given to authors but rather rights taken away from everyone else.

I find it interesting that the programming community is willing to 'donate' billions of dollars worth of value as FLOSS every year, many of which are for tools used by authors also.

Yet even during a pandemic, when visiting a physical library can literally be life threatening, most mainstream authors, (there are exceptions, but few and far between), still hold onto their "intellectual property rights" with all they can.

Is there an industry that gives a similar/larger amount away for free in value? Serious question.

The only other thing I can think of is various volunteering doctors and the like, but I am specifically interested in terms of "intellectual property" value produced.

We have the luxury of having job security and very high salaries, artists and authors by large do not - if IP was abandoned and nobody could make money on software we would all be calling for lawsuits. Just because one medium is easier to pirate doesn’t mean it deserves to be pirated.

> Yet even during a pandemic, when visiting a physical library can literally be life threatening

Nearly all libraries already have digital lending programs that are legal and controlled... IA just distributed pirated copies.

> We have the luxury of having job security and very high salaries

I think this view is colored by SV salaries. There are many places where programmers are paid in line with other kinds of skilled labor.

> if IP was abandoned and nobody could make money on software we would all be calling for lawsuits

Doubt it. Quite a few companies already make money on integrating solutions, support and consultancy services.

A great amount of software already has very lax licenses.

But I am not calling for that. I am simply asking for a bit of compassion during an unprecedented situation.

> Just because one medium is easier to pirate

Are you saying books are easier to pirate than software? If so, I have news for you.

> Nearly all libraries already have digital lending programs that are legal and controlled

Quite a few don't or the process is super convoluted, proprietary, requires plugins, mobile apps, Windows only etc.

> IA just distributed pirated copies.

There were certain restrictions in place, like time restrictions, but I guess this shows there's no appeasing the copyright lobby so next time IA might as well place no restrictions on it whatsoever. The backslash is the same.

> I think this view is colored by SV salaries

I’ve never worked in SV

> Are you saying books are easier to pirate than software? If so, I have news for you.

Have you worked in software in the past decade? Everything is run as a service, either entirely online or backed by online services... good luck pirating that.

> Quite a few don't or the process is super convoluted, proprietary, requires plugins, mobile apps, Windows only etc.

As of 2015 90% of libraries had a digital lending program - you have no idea what you are talking about.

https://www.pewresearch.org/internet/2015/09/15/who-uses-lib...

> The backslash is the same

Except that again >90% of libraries do it legally without lawsuit because they follow the rules that respect artists and authors.

> I’ve never worked in SV

I am assuming you're from the U.S. Software salaries there are inflated practically everywhere compared to most of the rest of the world.

> As of 2015 90% of libraries had a digital lending program - you have no idea what you are talking about.

It's true that this was maybe 5 years back, (when I was still at uni), but while the option existed, it required some Windows/Mac only SW to decrypt the DRM and the reader itself was way worse in terms of features than literally any PDF reader.

As one form of "protection", you couldn't even highlight text. That is a major part for me to focus on the part I am currently reading and thus made the whole thing practically unusable for me.

I don't think you're quite aware just how awful most of this software is. It's one thing for it being "available" and quite another for it to be a "good experience".

> I don't think you're quite aware just how awful most of this software is.

Having used the software across three different states recently I have yet to see one that doesn’t let me pull library books right onto my kindle - don’t think I could ask for a better experience.

Well, you're lucky then.

When I used digital lending, forget Kindle. Forget any kind of "offline" for that matter. Use the proprietary reader app or be out of luck.

(This was in the UK a few years back.)

Most American libraries have agreements with Rakuten OverDrive (https://en.wikipedia.org/wiki/OverDrive,_Inc.) or something similar. OverDrive supports apps like Libby that let you borrow and read ebooks (and send them to your Kindle) that the library system has paid for licenses of. I have no information about the status of things like OverDrive, or Kindle support outside the US.

As for me, I rarely use Libby because most of the books I'm looking for do not have digital editions and even if they did no library would bother to pay for the license. (I miss having a research library handy.) In fact, I usually only use it for light audiobooks for road trips, but they usually have so long a waiting list as to make it useless.

I think if the IA had contacted authors and said, "Hey, would you be willing to make your book available for lending as part of our national emergency program?" the average author would have been willing to opt in. But IA did not do that. Instead, it decided for itself that the authors should waive their intellectual property rights.

I'll admit, there are some factors that make this complex.

For one, many authors have book deals with traditional publishers, who would also need to be a party to the agreement, and they have different interests than individual authors do.

For another, an opt-in program is currently infeasible, particularly for books that are older and out of print. That doesn't automatically mean, though, that an opt-out program is OK. Instead, it likely means that in the absence of a way to get authors' permission beforehand, there is no legal, ethical way to pull off what IA has tried to pull off.

But my point is that you're comparing the programming community's voluntary "donation" of open-source software to an involuntary "donation" on the part of authors. When you take something that belongs to me without asking me, then even if I would have been willing to donate it had I been asked, you've still stolen something from me.

uncontrolled digital lending

The copies were still DRM'd and still expired after two weeks.

> I am an author, and several of my books were published by one of the publishers who is a party to the suit

What is your estimate of the actual monetary damage that you suffered from the IA's action?

I'm going to give you a slightly long-winded answer, but I think it's important to spell it out, because there is a lot of confusion about how the IA's scheme affects authors.

When an author writes a book, the laws grants them copyright, which means that for a specified period of time, they get the exclusive right to make copies (or authorize copies be made) of that work. Because they own the copyright, they are able to benefit from the sale of those books.

So when we talk about damages from copyright infringement, it's important to recognize that apart from whatever effect that infringement has on sales, the copyright itself is being stolen from the author, and that right has value. Granted, it is much harder to calculate monetary damages on the theft of a right than it is to calculate monetary damages related to lost sales, but that doesn't mean the right is worthless.

I found this section of the U.S. Code that prescribes statutory damages as a remedy in lieu of actual damages, presumably in recognition of the fact that copyright itself has value apart from lost sales: https://www.law.cornell.edu/uscode/text/17/504

All that said, I am fairly confident that I did not lose any measurable sales because IA chose to put my 2014 book in its national emergency library. But it infringed on my copyright nonetheless.

> So when we talk about damages from copyright infringement, it's important to recognize that apart from whatever effect that infringement has on sales, the copyright itself is being stolen from the author, and that right has value.

The author is only allowed to violate everyone elses right to freely share information in order to encourage the creation of more works. Has the NEL in any way reduced the creation of new works?

I am going to give you a long winded answer, because this is important to spell out as well. Copyright is dead and the various efforts to keep the idea alive and relevant are nothing more than the desperate attempts of certain industries to avoid finding a new business model when faced with new technology.

Copyright only worked because for most of its history copying at scale required specialized industrial equipment, and one could expect that anyone who could make an investment in that equipment could afford to pay the teams of lawyers needed to work out copyrights. There was never an expectation that an individual would have to consider copyrights when using their personal tools in their own home. Deciding whether or not an action infringes on a copyright ultimately requires a lawsuit of some kind, which is what IA is now involved in. Individual authors were not the intended beneficiaries either, and for the most part authors receive only a small fraction of the money publishers make on their work (or in the case of scientific publishing, nothing whatsoever).

The reality is that today's technology allows individuals to copy on a global scale from the privacy of their homes, using tools that are almost universally available. Copying is a normal part of the use of a computer. The majority of people do not spend a millisecond considering the copyright implications of sending a copy of something they were reading to someone else. It is beyond unreasonable to expect that ordinary people, who do not work for some copyright industry, are going to consult with lawyers every time they use their computer for something common and normal.

IA is an organization with lawyers available to advise on copyrights, and with the ability to fight a copyright case in court. On some level IA could be expected to work within copyrights, and in fact IA has done so by, among other things, imposing artificial limits on how many copies they will make available at a time, and forcing their users to use a copy-restriction system (DRM). You can complain all you want about copyrights but IA went out of their way to try to work within the system.

So-called "lost sales" are a red herring. There is no way of knowing whether or not a person would have paid for something if they had not received it for free. It also makes no difference how much money an author might have made if the world were different: we live in a world with the Internet and with computers in everyone's homes, and that means people are going to copy and they will do so without paying attention to copyrights. The sooner society as a whole accepts that fact the sooner we can stop wasting our resources on obsolete ideas and start building a new system that works well with the technology we have.

> I am fairly confident that I did not lose any measurable sales because IA chose to put my 2014 book in its national emergency library. But it infringed on my copyright nonetheless.

Irrespective of whether it is infringing (presumably the courts will sort it out), how would you measure the harm that you have suffered or will suffer due to the IA's action, and what do you think would be an appropriate remedy or compensation for you, based on that harm?

I get that it is in your interest to get paid as much as possible for your work. It makes sense for you to want this.

It is in my interest to not pay to read, watch or listen to anything.

Important people talked a lot about these opposing interests. In the end google books was killed, we were not allowed to read stuff written by dead people and we got to pay for this highly obnoxious global copyright gestapo who for example managed to equate the BitTorrent protocol with theft.

The readers got.... uhhh.... well.... to pay for it?

The deal we got is about as lame as to abolish copyright?

There is of course the collective interest as well. You nor me aren't all that important are we? Should we both be interested in well-red people or not? Do we benefit from others knowing stuff? Or is it perhaps harmful? Thanks to modern administration and other automations fewer people can do more work. There really are a lot of job openings but they all require a ton of reading.

I think we [some how] have to migrate to a subscription or patreon like system where you would get paid to write by the chapter. The quality would no doubt suffer but the model where civilization [maybe perhaps] owes you money doesn't work.

Maybe we can agree on how much you should be paid after you are dead? Or wait! We could agree that in the after life no one should enjoy the privilege to use ownership of your works to prevent reading of it.

Does anyone have a legal theory under which IA can potentially defend itself here? I am no legal expert, but I just can't fathom an avenue where they win this case. The merits of copyright law can be debated, but given that the law exists, what legal framework can IA use to fight this, or is their losing the case a forgone conclusion?

I haven't heard of anyone suggesting any legal strategy by which they can win.

I've really been scratching my head trying to figure out what their overall strategy with this has been.

It looks like they're trying to shame the publishers, perhaps in the hopes that 'cancel culture' will benefit IA.

For better or worse, that probably is a more and more plausible strategy to deal with lawsuits and threats nowadays. If you can get enough people to vocally support you over the other side, paint the parties suing you as bullies going after the little guy, make it a giant media controversy that gets hundreds of newspaper articles and YouTube videos etc, then a large number of corporations will probably back down/drop the lawsuit.

After all, reputation is king, and companies fear a PR disaster more than just about anything.

Whether that'd actually work for the IA on the other hand... well that's a whole different story.

> I've really been scratching my head trying to figure out what their overall strategy with this has been.

They're doing what's right, with - it appears - insufficient concern for pragmatism.

Totally disagree that they’re doing what’s right here. They did what they wanted to and thought they’d be able to get away with it. They still might, who knows.

> They're doing what's right

Stealing from artists and authors is right? Just because a company you admire does something wrong doesn’t mean you need to resort to a fanboyish defense.

More than 90% of libraries already have digital lending programs that they established legally following all the rules.

IA completely disregarded these processes not to mention publishers and authors rights - they just opted to distribut pirated copies of works.

Thoughts cannot be stolen, nor can words on a page, nor can bits and bytes. For something to be stolen, the single instance of that object must be transferred from one entity to another. In this scenario, the existing book was copied from one entity to another. You may believe the Internet Archive was committing an act of theft, but your notions of what theft is are based on an obsolete idea of what property can be.

From the beginning this has looked like IA threatening to self-destruct by forcing a showdown they can't win. I can't tell if they are courting another party to bail them out or if this just fits someone's blaze-of-glory narrative.

I think they've got a tough legal case. I think they will lose the battle, but I hope win the war. Maybe they can somehow get a win in the court of public opinion.

Since they are probably going to lose anyway, I hope they go down swinging and start the conversation to abolish all copyright and patent laws. I for one am tired of all these obtuse groups who think their minuscule contributions to our common intellectual library, which are mostly regurgitated ideas from the past thousands of years, entitle them to some monopoly profits and control over others.

Personally I think the 13th Amendment should be their argument. But I think that's a losing strategy, at least for the next 20-50 years until popular opinion wakes up. But if you're going to lose anyway...

The 13th Amendment would not come into play here, unless you can somehow prove fictional characters are sentient, or whole-brain emulation becomes a thing and people's brain scans start getting copyright ownership attached to them. Those would make for a great SCP but aren't valid legal arguments today.

There will never be widespread support for copyright abolishment, for two reasons:

1. The vast majority of people are apathetic to the issue when it doesn't affect them. There's more public support for abolishing all private property than there is for abolishing or even limiting copyright. Hell, even the Soviets had copyright laws, albeit weak ones. 2. The court of public opinion has a known bias in favor of individual creator-owners. It is very easy to denounce large publishing conglomerates suing individuals for every infringement, but it's harder to denounce, say, a beloved indie creator going after cheaply-made knockoff merch on AliExpress.

>I for one am tired of all these obtuse groups who think their minuscule contributions to our common intellectual library, which are mostly regurgitated ideas from the past thousands of years, entitle them to some monopoly profits and control over others.

This sentiment is toxic. Making the author out to be the bad guy is a losing opinion (see factor 2). Any copyright reform that attempts to justify itself with "authors are regurgitating ideas" is doomed to failure. The people are not going to go for "authors shouldn't own their work", and arguing that is going to make it harder to argue for more limited reforms.

> The 13th Amendment would not come into play here,

Yes it would be a huge stretch, but I look at copyright/patent law as unjust restrictions on the freedom of one person by another.

> There's more public support for abolishing all private property than there is for abolishing or even limiting copyright.

I think this is a really good point. I would say 99/100 of the general population has zero opinion on copyright/patent law, so present day it would fall far low on the list of priorities.

> The vast majority of people are apathetic to the issue when it doesn't affect them.

You are very much right that people are apathetic to it. But if people weren't affected by it I wouldn't care. I care because I think people are greatly affected by it, though that isn't widely reported. For example, millions of people are strongly affect by the opioid crisis, and if you trace that back to the root cause, what do you find: patent law (Oxycontin was being heavily prescribed over cheap generics like ibuprofen because of an incentive stream due to monopoly profits from patent laws). If you look at healthcare, or the cost of education, or tech consolidation, or the current news industry, all of these problem categories in the USA have a common thread where the industries depend upon copyright/patent laws, with resulting harmful incentives. It's like when you have a software system where you've got the underlying data model wrong. Users will constantly point out the loads of specific easily observable problems but the real root cause and solution is to fix the underlying data model.

Why isn't it widely reported on? Well, I could be completely wrong and these laws are a good thing for everyone. Or maybe because the media doesn't amplify the voices who have been researching and promoting this because as the saying goes "It is difficult to get a man to understand something when his salary depends upon his not understanding it."

> This sentiment is toxic.

I'm not too sure. I think you could be right, and I think my negative exasperated tone above could be counter productive. But I also think it might help to be direct with creators about the true value of contributions relative to what they are building upon. The success (and humility) in the OSS world is perhaps the way of the future. Successful OSS developers have appropriate humility that they are building mostly on the works of others and give their work away under public domain (ie. sqlite) or permissive licenses like MIT. Very few developers want to use libraries where the authors insist on control. That zeitgeist hasn't yet moved to other creative industries yet though, that I'm aware of.

I also think one might win some minds when you make the case that when a janitor cleans a room, she then doesn't get to charge a fee to everyone who enters that room for the next 120 years.

Spot on points though. I am not too confident in the odds of success.

The problem is that the Internet Archive demonstrated that controlled digital lending can allow a library to become indistinguishable from Pirate Bay overnight.

They blew up an uneasy peace and cannot exactly be trusted to adhere to the practice without changing it as they decide.

In my opinion, they showed that it didn't become Pirate Bay, but rather reasonably and responsibly took over, during a period of emergency, on the duty of their physical counterparts (closed to the public). It rather strengthened its mission.

But we're a library so it's okay if we make unlimited copies and destroy a business model in the process.

In the US, there's no right to a business model. That's ridiculous. What's happened is certain bad actors have deliberately taken advantage of a weakness in the social contract to enrich themselves & lock down the ownership of our own culture. At best, we're dealing with moral turpitude, at worst with genuine sociopaths.

Without some kind of business model, no writer would be insane enough to write or publish a book because their audience would just read it for free.

This is mistaken. Writers write. It's their calling. Plenty of writers have been "insane enough" to write and publish without a business model for as long as written language has existed.

No, what's mistaken is not noticing that the world has changed. Websites exist, youtube exists, there are a myriad of ways a writer might "write" or create which does not involve book form. Books remain viable because there's a business model to support them, but take that away and people capable of writing could and would go to modern competing products that didn't exist in the past.

> Books remain viable because there's a business model to support them

If you mean "viable" business-wise, that's a tautology. If you mean "viable" as in "writers feel compelled to write books", that's simply false. Writers write. Many writers like writing books, and would do so even if it didn't put a single cent in their pockets.

Writing books can be turned into a business, but it's not inherently a business.

Also, a book is not its physical form. An electronic book is no less of a book than a paper book.

> Many writers like writing books, and would do so even if it didn't put a single cent in their pockets.

Unless you are independently rich, you need an income to survive.

That's not the only option. Some writers get by without being rich. Others have other jobs, and write because it's their passion.

The falsehood here is "no writer will be insane enough to write without a business model".

Sure some cushy jobs makes it possible to write on the side. It is no accident that historically a lot of authors and scientists were clergymen.

But you need an income to be able to write.

"Cushy jobs" is overstating it. People find the means to write with poor jobs too.

Yes, you need to be able to have a means of living in order to write. Selling your books is one such way, but not the only one. Lots of writers would still write without a business model.

That was my only point, really. It's false that one would have to be "insane" in order to write. We can argue about ifs and buts all day long, but that bit which I was replying to was hyperbolic and false.

Can you mention some examples of novels by working-class authors from before the introduction of copyright and commercial publishing?

I can do one better: I can mention a hugely popular and commercially successful writer -- whom you know of, at least by name-- who used to live from paycheck to paycheck, really struggling when he started (before succeeding enormously, of course) and who wrote in the introduction to one of his books:

"Painting. Sculpture. Composing. Singing. Acting. The playing of a musical instrument. Writing. Enough books have been written on these seven subjects alone to sink a fleet of luxury liners. And the only thing we seem to be able to agree upon about them is this: that those who practise these arts honestly would continue to practise them even if they were not paid for their efforts; even if their efforts were criticized or even reviled; even on pain of imprisonment or death."

He struck gold, of course, but note the sentiment he expressed. By his own admission, had he never been paid for it, he would have kept writing anyway, because that's what he does. And when he was starting he had other jobs -- and a family to support -- and really struggled with money, but kept going anyway.

All the greatest writers, painters, composers, sculptors etc. dedicated themselves full time to their art. You just can't reach a comparable level of mastery by dabbling in your spare time.

First, this is a secondary discussion. Mastery? That wasn't the argument. The argument was about whether writing books can exist separate from monetary compensation.

Second, as has been mentioned to you in another comment, mastery is not directly related to having been paid for your art. There are acknowledged poets whose work was published posthumously. They didn't live off it.

(The quote was by Stephen King, by the way. Regardless of what you think about his literary skill, the man sure can speak about writing).

If you don't care about quality then I guess you are right.

I never said I didn't care about quality, just that the discussion you entered was about whether books would exist without payment and whether only the "insane" would still write. You seem to want to take the argument on a tangent, but please read again the post which sparked this thread. What the original comment asserted was patently false.

"'But you're Philip Glass! What are you doing here?' It was obvious that I was installing his dishwasher and I told him I would soon be finished."

https://www.theguardian.com/education/2001/nov/24/arts.highe...

Whats your point? Are you suggesting society would be better off is Philip Glass never had become a professional composer?

I mostly wanted to share that fun anecdote.

I don't think anyone suggested that. Society may be better off despite Glass never becoming a professional composer, though.

Maybe I misunderstand what you are saying, but Glass did become a (quite successful) professional composer and performer.

Sorry, occasionally my grasp of English is lacking.

I meant that, while Glass not becoming a professional composer would have been bad by itself, it may be a reasonable loss compared to the advantages.

The business model has existed for centuries at this point. People write books, books are sold. Even those who are simply writing for the sake of writing KNOW that there is the potential to have their book picked up by a publisher and sold, take that away, take the hope of actually being able to support yourself by writing and no... even the most obsessive of obsessive writers will likely give up, from starvation if nothing else.

I disagree. Plenty of people take up writing because it's in their blood. They write because writing is their passion and because they have something to tell. Maybe it's artistic, maybe it's political, maybe it's religious -- or a combination.

Getting paid by publishers for writing books is a powerful motivator, but not the only one. In a world without a way to sell books, writers would still write.

> Plenty of people take up writing because it's in their blood. They write because writing is their passion and because they have something to tell.

I can agree with that. We have stuff like fan fiction which people write and share for free. I guess 50 Shades of Grey is the preeminent example of writing as a passion and as a calling rather than a professional skill.

"Fanfiction" comes with a certain baggage and implications of quality. I don't agree that unless you're getting paid, your literary work is fanfiction or unprofessional.

There are authors whose main body of work was only published after their deaths and who are considered literary masters nonetheless, and not fanfiction writers.

All in all, I agree with a sibling comment: we must divorce the business of writing with the art of writing. They are related, of course, but the latter doesn't require the former. Once one understands this, one is less inclined to claim things such as "if writers don't get paid, books won't get written".

> I don't agree that unless you're getting paid, your literary work is fanfiction or unprofessional.

That is kind of the definition of professional though.

Writing, like any other skill, takes time and practice to master. If you can't dedicate yourself full time you will not reach your highest potential. And it requires some form of income to be able to dedicate yourself full time. Just like a professional pianist will be better than an amateur.

> Writing, like any other skill, takes time and practice to master. If you can't dedicate yourself full time you will not reach your highest potential.

The second sentence here doesn't really follow from the first. I mean, assuming that only time and practice are needed for mastery, then practicing less-than-full-time only makes it correspondingly longer to reach mastery - it doesn't make it impossible, like you claim.

In reality, time and practice are not the only factors, though. You have to account for talent, which not only sets the upper bound on the quality of your writing, but also influences the rate of improvement with practice. It's not exactly unheard of for a debutant's work to be "way better than the latest work of established master X", isn't it? Talent is hard to capture and define, but it's a real thing, especially in the arts, although it also plays a part in trades and crafts (that's where the "10x programmers" and similar concepts come from...)

Talent may be a multiplier but it is not a substitute for practice and learning and dedicated time. Mozart had an amazing talent which combined with intensive training from a young age and dedicated work made him create his masterpieces. If he had the same amount to talent but had to work full time as a cobbler to make ends meet, he would never have been able to produce the same oeuvre.

> take the hope of actually being able to support yourself by writing and no... even the most obsessive of obsessive writers will likely give up, from starvation if nothing else.

Millions of fanfiction writers would like to have a word with you... Not to mention all the authors of comments on this very site, some of which are, at least, good enough to be paid articles somewhere, or in cooperation with other commenters could be turned (as whole threads) into short books in their own right.

Put another way: the music industry could entirely vanish overnight, and people would still sing in the shower and when drinking with their buddies.

Some people tend to express themselves in some way, and they would do it regardless of literally anything. We've achieved high literacy rates, which gave a tool of expression that is writing to a correspondingly high number of people. It's not exactly surprising that we now have a flourishing environment of Web novels and all kinds of written content outside of the "market" and publishing industry as a whole.

But it's not something specific to our times. Plenty of writers in history did starve do death. One of "the three greatest" poets of my country did precisely that: he wasn't published, he wasn't even read much, and when he was, he was ridiculed for it. Yet he had been writing anyway; then, he died in extreme poverty, leaving just a lot of paper behind. It took some 40 years IIRC for someone to "rediscover" the stash of hand-written poems, and now his works are being taught in highschools.

In yet other words: no, not everything has to be related to money. Many things are, yes, but not all. Writing as a profession that published (and paid) authors do is all fine and good, but it's just one side of writing, not its definition.

Thanks for writing this! Now I'm really curious about who this poet was.

https://en.wikipedia.org/wiki/Cyprian_Norwid

> Norwid led a tragic and often poverty-stricken life (once he had to live in a cemetery crypt). He experienced increasing health problems, unrequited love, harsh critical reviews, and increasing social isolation.

...and yet his works are easily (IMO) the best among the three of them (the two others would be Mickiewicz and Słowacki).

cool, let's stop paying programmers then. You can write and maintain software for free. Because you'd do it without pay right? I mean, why are authors the ones who don't have to get paid?

I think you're arguing against a strawman. Nobody argued that writers (or programmers) shouldn't get paid; just that writing (and programming) also exist outside the realm of monetary compensation. People write (books and code) for many reasons: because they are passionate about it, for the recognition by their peers, because they want to enter a contest, because of vanity, and yes, because of money.

Getting paid is fine and dandy. What's false is that "without a business model", nobody would be "insane enough" to write books (or programs).

The conflation between doing a thing and getting paid for doing a thing -- or even worse, claiming that without monetary compensation said thing wouldn't exist -- is annoying and misleading.

I write and maintain a lot of open source software for free.

I do, too. I also write software for money, as a way to finance my living expenses. When I write software for free and distribute it freely for others to use, I do it on my own volition. The day someone else decides for me that the development work I do for a living should also be free, I will have a serious problem.

Neither the_af nor I are saying that all the writing should be done without the authors being paid for it. We asserted, twice!, that professional authors and publishing industry are OK. What we say is that the published authors who earn a living by writing are not the only source of writing. If all the publishers, the whole industry, would go bankrupt tomorrow, the Web novels would still get new chapters, new fanfics would still get written, new essays would still be put on blogs, new comment threads would still appear, and so on.

Being paid for writing is great. It's just that the paid writing is not all writing - some people write simply to be read, without needing or wanting to be paid for it.

Writing code is different, because it's a means of self-expression only in small part.

Let's! Arguably the software world would be much better. Nobody would write shit to spy on us or push ads everywhere if they weren't paid.

The best software is usually already the one written by volunteers.

> The best software is usually already the one written by volunteers.

You mean written by people who are not professional software developers? I highly doubt that. Can you provide some examples?

That's not what I meant. Obviously someone who really likes developing software is likely to make it their job if it's possible, hence the current non-professional developers are not representative of those in a world where there were no software development jobs.

I meant the best software is written without expectation of remuneration.

The Mac was developed by salaried employees, so was Unix and C and all the Xerox PARC stuff. The internet and the web was developed by people getting paid for it. Knuth is a professor, he didn't have to do his work after hours for free.

My impression was that most successful open source projects (Linux, Mozilla etc) are driven by paid contributors.

I'm sure you can find some examples, but depending on your opinion on what the "best software" is, I doubt most of it is developed by people working for free.

> Plenty of writers in history did starve to death.

And you are using this as an argument why authors don't need income? Surely they didn't write anything after they starved, so it seem lack of income did affect the output.

Writers are free to make their work public domain if they want. The question is for all the author who have not decided to do that, but prefer to get paid for their work.

> Plenty of writers have been "insane enough" to write and publish without a business model for as long as written language has existed.

Only in the case of independently wealthy authors, which historically typically means nobility. Most non-wealthy authors have been depending on patronage, which means some other wealthy person decide what you write.

> Only in the case of independently wealthy authors, which historically typically means nobility.

Not only that. Plenty of struggling people write because they like writing. Writing is a calling which some people happen to be able to turn into a business.

But do note the post I was replying to. I wasn't arguing about copyright. I was arguing about the hyperbole of "no writer would be insane enough [...]" which is simply untrue. And it's untrue by a lot, not by a little.

> Only in the case of independently wealthy authors, which historically typically means nobility. Most non-wealthy authors have been depending on patronage, which means some other wealthy person decide what you write.

You're mistaking publishing for writing. You need money to publish, because publishing is selling decorated paper. Or rather, you did need money to publish. Now you don't, but instead we throw up artificial barriers in order to preserve the status quo.

There may not be a right to a business model, but by the same token no one has a right to someone else's work for free. I submit that copyright has served society quite well. The pandemic hasn't been that onerous. Amazon has been shipping books. Powell's has stayed open. No one was denied access to materials.

> There may not be a right to a business model, but by the same token no one has a right to someone else's work for free

For entertainment, I agree. But only insomuch as entertainers need to eat too.

For science, I disagree. Science benefits society most when everyone, even the poor, have access to it.

> Science benefits society most when everyone, even the poor, have access to it.

Sure, but should scientists work for free?

> Sure, but should scientists work for free?

I think the premise of the question is flawed.

I think science should be free and scientists should be paid a liveable wage as any other person should be.

People can write stories all day long, even stories that will be read by nobody. Scientists can do science all day long even science that benefits nobody.

But writing stories all day long practices the art without worry about a paycheck. Scientists doing science practices the art without worry about a paycheck.

Both can be done with personal computers these days. Personal computers are extremely cheap to have and to maintain. There's nothing stopping it other than politics.

Can you name at least one scientist whose work is supported significantly by publishing royalties, from the publication of that actual work?

As far as I know publishing royalties is not a source of income for most scientist.

I might go so far as to say essentially none. Quite a few have published popular books, like Thinking Fast and Slow, but I seriously doubt the money from that funded further work (and it would be a crappy way to run a scientific career).

In USA the comment you wrote is your work, copyright granted to you.

I just read it for free!!!

That's because a license was granted to Hacker News to display their comment, per Hacker News' TOS. If you read a publication that person did not have publicly available or that they charged for, that'd be illegal. You have the ability to view the above comment, as HN permits people to view the comments that they have license to. Still, HN could decide to ban you from viewing their content, they have that right.

> no one has a right to someone else's work for free.

Sure they do, that's what libraries are for.

Your rights to a business model are encoded in laws and contracts you sign with others. Unless the law changes, then yeah there are certain rights around business models. It’s not a right to avoid innovation, but it’s a right to avoid lawbreaking and contract breaking.

Excellent! I have no contracts with any publishing house, and I doubt that IA does.

If IA agreed to a controlled-lending contract, it absolutely does.

They didn't. They were relying on the first sale doctrine.

You are ignoring the laws part of his comment.

I don't think that was there when I commented

But a consumer cannot just unilaterally demand that a business should use a different business model more to the liking of the consumer.

Lets say I hire a plumber to fix my sink. Afterwards I refuse to pay because I have decided plumbing work should be free and plumbers should instead make their income by selling branded merchandise. This would just be breach of contract.

The plumber is not a psychopath by insisting on getting paid according the originally agreed contract. Maybe the plumber don't want to make income by selling branded merchandise but just want to get paid for plumbing. That is not for me to decide. I am free to look for a different plumber who will work for free.

> But a consumer cannot just unilaterally demand that a business should use a different business model more to the liking of the consumer.

Yes, they can. It's weird that you think that people can't demand that any aspect of any business change (or end) because they don't like it. That's basically an argument against law and democracy.

Your example is about someone entering a contract, accepting the fruits of that contract, then refusing to hold up their end of that contract. Completely unrelated.

But isn't it exactly what IA did? They refused to hold up their end of the contract.

Retroactive copyright extension makes a mockery of any argument based on contract rights.

> What's happened is certain bad actors have deliberately taken advantage of a weakness in the social contract to enrich themselves & lock down the ownership of our own culture.

That's ridiculous. Copyright exists becauce in the past bad actors misused the liberty of culture to exploit poor creators by selling their work without paying them anything at all. In the grand picture copyright is good, because it enables cretors to live from their work, and let's them invest into bigger pieces of culture of higher quality.

What we need is to ensure a balance between the commercial interessts and societies interesst.

If you are saying that copyright is entirely obsolete now that authors can cheaply distribute their own contents via the internat without having to rely on publishers who might not pay them, then I agree.

No, I do not, and you are wrong. Internet does not solve the problem of Publishers ripping of creators. Instead modern technology intensifys the problem even more. This is happeng already today in the grey areas of copyright. Without copyright world would likely go full back down to the lowest levels of culture.

Partly playing devil's advocate here, there's no right to a business model but there's a copyright and the IA violated it when they broke their digital lending agreement. Calling other people's work "our own culture" is a misleading appeal to emotion.

Should we have a copyright system as it is today? Now that's a completely different question. And I don't think what they did helps at all in changing it for the better, at best they're just helping in testing and defining the limits of the current system.

But there are rights to control copying. Something which libraries were never intended to perform.

This is like saying a bank doesn’t have a right to exist if enough people come in and rob it.

You seem to be inferring a "because" where it isn't intended. In the U.S., you don't have a right to a business model. Also, there were some "bad actors" that exploited a business model. No cause/effect there.

Actually, yes. I don't see a problem with this.

Facebook destroyed Myspace's business model overnight.

There's no difference between this argument and an argument against libraries in general. The argument that libraries are a special case and that qualifying as a library should mean that you abide by a limitation that physical libraries have (owning a physical copy of a book and not loaning it to two different people at the same time) is better.

Had they taken partner library inventory from confirmed closed libraries and allowed that number of books to be lent, then sure.

Instead they allowed unlimited borrowing. They fundamentally broke the "controlled" part.

Exactly. It's almost insulting to everyone to call it "controlled". It's like _1984_'s newspeak.

AFAIK the borrowing was still limited in time and with the DRM protection.

Whoever "took" the book at that time lost the access to it long ago already, thanks to the DRM protection remaining and working.

Edit: answering "I'm not sure I'd call what they're doing "DRM". Read the court case: explicitly Adobe DRM technology for encrypted e-book formats is mentioned, implemented in different e-book readers and used in this case.

If there's no limits on how many copies they would hand out and no limit on how often you can check out the same book, then for practical purposes it's not time limited.

> no limit on how often you can check out the same book

There was always a fixed limit on how long the book remains checked out, and it must have already expired to all that checked it out at that time. The DRM protection remained active.

Edit: answering the post below:

> They had a limited number of licenses to produce works and they produced more than that.

It was at the times that all the physical libraries were closed, one can argue that the demand wasn't bigger than what the public libraries would have been able to handle, and even it had been bigger, it was only because of that exceptional emergency happening.

But I agree it would have been much clearer had they made some fixed limits corresponding to the estimated number of the books in the physical libraries.

This really doesn’t matter because the work was duplicated regardless of the fact that it was time limited. They had a limited number of licenses to produce works and they produced more than that. Doesn’t matter if it was for 5 days or 5 minutes.

If I own a DVD and distribute more than copy simultaneously even if it’s time limited and even if I keep the DRM I’ve still violated copyright.

Physical books do not come with licenses. Lending falls under first sale doctrine.

Right, but digital lending looks a lot more like software licenses where libraries buy "seats" that correspond the number of simultaneous borrowers. If you have more borrowers than seats you've violated copyright.

Most libraries work with publishers to buy lending rights directly but IA is arguing that if I hold one physical copy of a work and promise not to "perform" (copyright jargon is odd) it while it's in my possession then I may transmit that work digitally to another person kinda bridging first sale and seats of digital lending licenses.

I guess we'll find out if the court buys it. Because under normal circumstances this is open and shut copyright violation.

I don't think the fact that physical libraries are closed is relevant, because they weren't loaning out physical books. They were loaning out ebooks, which many (most? All?) libraries had continued to do, totally unaffected by COVID-19

> one can argue that the demand wasn't bigger than what the public libraries would have been able to handle

By this logic, I can speculate that there is probably at least one copy of the Star Wars ep V DVD sitting in some library's bookshelf not being watched right now. So it's completely ok if I "lend" myself a copy and watch it without paying. Since the demand was probably not higher than what could have been satisfied with the number of phyiscal copies of the DVD present in the libraries of the world today. Or maybe it was, who knows man?

This is, to put it mildly, not how copyright works. Internet Archive will have to learn that the hard way now in court. Which sucks, because I really like IA. I wish they will refrain from pulling any more crap like this.

It's called disrupting the market, I don't see why not. Uber innovated, airbnb innovated and now non profit internet archive.

Uber and Airbnb are still in dubious legal territory themselves, especially when it comes to employment/renters rights.

This is ironic because Uber "innovated" by being a taxi service that didn't follow taxi laws and AirBnB "innovated" by being a hotel service that didn't follow hotel laws.

Sure enough, the Internet Archive chose to "innovate" libraries with the National Emergency Library, by simply not following copyright laws.

I mean, did not reasonably and responsibly took over anything. They decided that they don't care and can do what they want and acted surprised when rights owners objected.

Except for the fact that is not what they did at all, in no way. Copyright maximalists love to use that argument but it does not make it true.

The key point of their response was "physical copies of digitized books do not circulate" during the emergency the Public Libraries where close, thus legal physical copies where not circulating

IMO the publishers need to prove the Lending Library loaned more companies of each claimed work, than what was locked away in physical libraries that were closed. if they can do that (they cant) then they have a case, if not they should be tossed out of court

Could I loan out a book that a library isn't circulating... just because I believe it isn't circulating?

Obviously IA might have closer ties to libraries than I do, but it's not clear to me what exactly happened that allowed them to loan a ton more.

I love IA, but their explanation for what exactly happened regarding loaning library books that were not circulating seemed to me come about ... only after the lawsuit phase started.

Their initial announcement seemed to be that there was an emergency and they were loaning out books because libraries (and schools) were closed... but that's not the same thing as an orchestrated digital lending deal that suddenly allowed them to loan a lot more than they had in the past.

A lot of explanations from IA seem to have been either poorly communicated, or sort of dance around this idea that they were doing digital lending properly... but without actually saying what they were doing...

> The publishers need to prove the Lending Library loaned more [copies] of each claimed work than what was locked away in physical libraries that were closed.

The Internet Archive suddenly gets the right to distribute books owned by a public library simply because the public library is closed? Who struck up that deal?

The publishers need only show that the Lending Library loaned more copies of each claimed work than what the Internet Archive owned and had the right to lend. That is sufficient to establish they engaged in uncontrolled digital lending, which is indistinguishable from piracy for all practical purposes.

the publishers could just let it go.

Why are only libraries the only possible source? The readers could -- I know this will shock the ears around here-- pay for what they consume. Amazon remained open and so did many other bookstores like Powell's.

No one was denied books. They were only slightly inconvenienced by not getting them for free.

I did already pay for them via my tax dollars that were used by the Public Libraries to obtain them for me so I and my fellow tax payers could borrow them.

And those books are still sitting in the shelf. No one is taking them away.

Just because the library is closed doesn't mean you can run up the pirate flag. Piracy hurts artists.

Publishers often refer to copying they don't approve of as “piracy.” In this way, they imply that it is ethically equivalent to attacking ships on the high seas, kidnapping and murdering the people on them. Based on such propaganda, they have procured laws in most of the world to forbid copying in most (or sometimes all) circumstances. (They are still pressuring to make these prohibitions more complete.)

If you don't believe that copying not approved by the publisher is just like kidnapping and murder, you might prefer not to use the word “piracy” to describe it. Neutral terms such as “unauthorized copying” (or “prohibited copying” for the situation where it is illegal) are available for use instead. Some of us might even prefer to use a positive term such as “sharing information with your neighbor.”

A US judge, presiding over a trial for copyright infringement, recognized that “piracy” and “theft” are smear words.

I think there's a thought experiment here to demonstrate why the national emergency library was fine.

Imagine if, the day they closed their doors for the pandemic, all the libraries figured that access to knowledge is still essential and the best way to keep loaning books is digitally. So the libraries mailed all their books to IA on loan, or maybe they digitized them themselves and loaned copies one-for-one to IA. IA would then have more than enough copies to lend out, one at a time per physical book like normal, to everyone who's needed them.

The books exist, they're just behind closed doors now.

> The books exist, they're just behind closed doors now.

Every library I’ve used in the states (from rural Georgia to Seattle metro) already has a digital lending system.

Typical digital lending programs are artificially crippled by publishers. They require libraries to purchase expensive licenses that are worse than physical books, like being subject to embargoes or expiring after only 52 lends.[0] This is why every traditional library's digital catalog is a tiny fraction of their physical inventory.

The IA merely allowed people to borrow books that exist in physical form with the convenience that modern digital technology allows.

[0]https://www.eff.org/deeplinks/2019/11/publishers-should-be-m...

Crucially, AFAIK digital lending systems aren't based on the number of physical copies a library owns; they're separate licenses. Thus, in a scenario where a physical library is closed but digital lending is still available, a significant portion of the library's catalog is inaccessible. At least in this regard, IA's logic is sound: practically-speaking, the number of copies of a given book that they lent during the period in question almost certainly never exceeded the number of copies held by closed libraries in the US.

What you're missing is that libraries have always been a thorn in the side of big publishers, and capitalism in general. Long before IA, they pushed to strip the power that libraries have and kinds of things they can keep, lobbied to cut funding. This is why you can't just take a book out of any library, you need a library card you got in person, even for digital lending.

Publishers have been kinda OK with libraries because copies are physically separate and inconvenient, the copies get dirty, and it's a status symbol to own your own copy. If those restrictions went away (digital copies are convenient and fast, they never get dirty, and it's the exact same as ownership), they'd definitely lobby against it.

Exactly. If the publishers could, they would make libraries buy five copies for every one they lend out. People need to stop letting the publishers' PR teams convince them that they care about freedom or knowledge or anything other than increasing their profits.

> loaned copies one-for-one to IA. IA would then have more than enough copies to lend out

The problem is that they skipped that part and just assumed both that

1) libraries would transfer ownership to them. I could see them getting away with this. Inter-library lending is common.

2) the number of copies in partner libraries equalled the number of copies taken out. This is a massive assumption.

The problem is, did the books actually exist in the quantities being lent? IA has no proof that they do and had not transferred the rights for them even if they did.

Had they asked for libraries to upload their locked in inventory, sign away the rights to the inventoried books, and limited lending to that number, they could credibly call it controlled digital lending.

Instead they threw away the "controlled" aspect.

What quantities were actually lent?

>The problem is, did the books actually exist in the quantities being lent? IA has no proof that they do

IIUC that's not how this works, legally. The publishers have to prove damage; the defense isn't just automatically assumed to have injured the plaintiff. Even if IA has been proven to infringe, the judge can massively reduce awarded damages if they weren't actually hurt.

Not if they pre-registered their copyrights - and I'd be shocked if they didn't, as you can't even sue anyone without a valid registration. If the infringement happens after the registration then you don't have to calculate and prove damages. Instead, the judge or jury awards damages based on some chosen number from $750 to $30,000 times the number of infringements proven. Sometimes, they literally just pick a total damage award and divide out the number of infringements, like in the billion-dollar Cox lawsuit.

Furthermore, even if they didn't preregister, and they somehow cannot prove actual damages, it's still infringing conduct. They could, say, get a permanent injunction barring Internet Archive from operating their library program. This might actually be what they really want, moreso than money damages.

Unfortunately copyright has "statutory damages". Hence why Jammie Thomas-Rasset was hit with a court order to pay $222,000 to the RIAA (down from almost $2 million!) for sharing 24 songs on Kazaa, despite the plaintiff obviously having no chance of proving they actually lost sales from it.

https://en.wikipedia.org/wiki/Capitol_Records,_Inc._v._Thoma...

It would be interesting to look into that. Would be funny if it turned out they still had more physical copies of the most popular book than they had digital lendings - it'd kinda confirm that the right move was to throw out the limits, because the need was there now, and the counting would take months.

Did they publish stats how often their most popular books were borrowed?

> the counting would take months.

Don't libraries know the books they own? That seems unlikely, since they need to know that when they lend them out.

Each library does, but unless they already all use the same software and have someone who knows it well enough to export the data and they have the time to do it, I suspect it would take a long time to collate the data in a useful form. And that assumes the books are keyed by some kind of unique ID like an ISBN in all libraries, otherwise good luck collating the different spelling/typos of titles.

Just reaching out to all the libraries and getting them to submit the data would take a lot of time.

Exactly. I support what the IA does with web sites because they don't do it in a way that hurts the web sites. But this is a direct decision to turn into something that's indistinguishable from Pirate Bay. It's almost mocking to call this "controlled digital lending" because it's uncontrolled. There's no limit to the number of books being circulated.

As an author, this will be yet another reason not to write books. The only people who will be able to afford to write will be the independently wealthy and the hobbyists.

It's sad to watch the IA descend into such anti-artist hatred. Copyright is like a union for writers. To see them become a copyright denialist is so sad.

Or every book will require a sponsor/need to promote something.

That is what I really fear. Every book becomes a more subtle advertising piece.

Books music art all flourished just fine before copyright was invented.

That is debatable. We remember a few high-profile works that have stood the test of time, but how many Mozart symphonies or Mona Lisas has human society produced in its past, and how does that compare with the quality and quantity of new works produced today?

Yet the works everyone wants to actually consume aren't the weekendware creative-commons hobby projects, so it's clear to me that copyright (well, IP in general) is responsible for the most compelling content.

Nothing is stopping people from releasing their passion projects to the world without strings attached.

Like every website?

Well said, IA wants this to look like a conflict with ‘big publishing’ but it is so much more than that - they are outright attacking artists and authors everywhere.

Internet Archive doesn't have "anti-artist hatred", they think you should have first sale rights on digital versions of physical books. They have a legal argument for it, which I think is stupid, but it's a bit different from the 20,000 people on HN here arguing about how artists shouldn't own anything.

Speaking of which... copyright is not a union for writers. A union is a union for writers. Copyright creates an artificial market for their output, but it largely does not dictate how they are paid, only that they must authorize copying and distribution of the work. There are plenty of extremely exploitative publishing agreements out there that copyright law has zero qualms about.

The problem is information wants to be read and be free. Copyright is a wall around information that has already been thought of and recorded.

Pirate Bay is exactly like a local libruary which is like a book store. The only difference is physical books vs digital, if you have to give it back and when and the cost.

Book stores will let you violate the publishers copyright as long as you don't leave the store. Want to read that entire book, sit on a chair and read.

A libruary will let you read at the place or at home but you have to bring it back in a week.

Piratebay lets you read it forever but it's a digital copy.

All scenerios you can read without paying.

Well, reading a book doesn't violate copyright even if you do it inside a bookstore.

To the consumer, maybe Pirate Bay and a library and reading in a book store look the same, but behind the scenes they are very different. For a library or reading in a book store, the store has paid the publisher for the book you are reading. They can only let as many people read as copies they have purchased. In Pirate Bay’s case, someone pays for the book (but not necessarily) and then infinite people can read. Same thing to a consumer maybe, but very different to a publisher or to an author.

There’s a reason libraries will buy multiple copies of popular books.

> For … reading in a book store, the store has paid the publisher for the book you are reading.

That depends. Most of the time the store has the option of tearing off the cover and reporting it to the publisher as "destroyed unsold" for a refund. That applies no matter how many people may have read it while it was sitting on the shelf.

And why must the entire book be treated as a unit? I see no legal reason why a library could not cut off the binding and lend out chapters or individual pages from the book to patrons on demand, which would allow multiple patrons to read (different parts of) the same book simultaneously. You could easily have 20 or more people reading the same book without major conflicts if you can pass the pages around quickly enough.

The problem is information wants to be read and be free.

It doesn't necessarily want to be written, though. That's the part people who make this argument always seem to forget.

Whether it's through our existing copyright-supported frameworks or some other mechanism, there needs to be enough in it for authors (and editors and cover illustrators and printers and online distribution services and...) to be worth producing the work in the first place.

There was a time before copyright existed, and we got pretty nice books from it. And now that I’m thinking on it, considering how the internet of today looks, with people creating content to earn money versus the internet of 20 years ago, with people creating content for the love of it, I think I would like a future where books are written for passion instead of for money. Less books, more quality.

Yes, and all of those works that you're thinking of were written either by individuals from wealthy families (today we would call them trust fund babies), royalty, clergyman, or artists funded by patrons from one of the first 3 groups.

I disagree about the "less books, more quality" argument. Today, we have more books, more quality. Sure, there are lots of bad books today, but the volume of high-quality works today so far exceeds the volume of any books (good or bad) produced during the patronage era that it's like comparing a nuclear bomb to a match.

> individuals from wealthy families (today we would call them trust fund babies), royalty, clergyman,

None of whom got their money from exorting readers of their books.

What you have there is a argument for basic income, not a argument for copyright.

Crucially, other than the artists receiving patronage, none of them were paid for writing their books at all.

History is filled with many authors who died young and penniless because they could not survive on their writing during their lifetimes. And that's exactly the system you're arguing for.

History is filled with many people, authors and otherwise, who died young and penniless because they could not survive on the fraction of the value of their work that was economically capturable by them personally.

> And [authors dying young and penniless]'s exactly the system you're arguing for.

Bullshit. Your system is the one that produces that (see also fanfiction authors, who I'm sure aren't true Scotsmen to you). As I said:

> > What you have there is a argument for basic income, not a argument for copyright.

Bullshit. Your system is the one that produces that (see also fanfiction authors, who I'm sure aren't true Scotsmen to you). As I said:

My system is the system that has enabled hundreds of thousands of artists and other creators to survive on their own without needing publishers or other entities to sell their work for them and pay them a pittance.

Basic income is a separate discussion. It would mean that artists wouldn't die, but it would also mean that corporations would get to exploit artists worse than they ever have before.

You really need to think of the consequences of your suggestions before you suggest altering other people's livelihoods for your own momentary convenience.

There was a time before copyright existed, and we got pretty nice books from it.

Sure. But it was a long period of time, and the number of pretty nice books produced during that time was relatively low, and the number of people they reached was also relatively low.

I'm no fan of content farms and their clickbait ad-spam, but there is still plenty of content written for love around if you step away from sources like Facebook and Google. However, much of it isn't edited or illustrated to professional standards, or covering subjects comprehensively, or accompanied by exercises, or based on years of demanding research and fieldwork. Commercial support can provide these benefits in a way that most people writing purely for fun as a hobby can't or won't.

> and the number of people they reached was also relatively low.

And that is because lack of copyright?

To some extent, yes, because a lot of works were never distributed at all.

More content is being written than read. If a book manages a few thousand sold they could end up on the best seller list.

People still write at a loss in many cases

If a bookstore buys a book, they now have a book. What they do with it is mostly up to them. They have the right to "sell or otherwise dispose of" the work, according to the first sale doctrine / 17 U.S.C. 109. They do not have the right to copy it. The Pirate Bay involves one person sending a copy of a file to another person, but that doesn't mean the original copy was destroyed. That lack of destruction is really the foundation of BitTorrent in a way - files are shared among many people. Then, if one person has the file active, it can be downloaded again. So people who upload a new torrent on TPB are breaking the law in that they're copying something they aren't allowed to copy. People who download and then seed a torrent are illegally obtaining a copyrighted work. The fact they upload it also means they're illegally copying it, as the author has the sole right to copy it.

> The problem is information wants to be read and be free. Copyright is a wall around information that has already been thought of and recorded.

Copyright isn't a wall around information. Copyright doesn't prohibit anyone from taking the information in a book and presenting it in their own way. For example, you or anyone else can take a copyrighted book, extract the valuable information like mathematical equations and methods and data, write your own explanations of the information, make your own diagrams, write your own exercises for readers, and then publish it and sell it. Copyright won't stop you or anyone else from doing that, because copyright only protects expressions of ideas, not the ideas themselves.

> copyright only protects expressions of ideas, not the ideas themselves

Copyright absolutely does place a wall around certain kinds of information. The fact that a certain book consists of a particular arrangement of words is just as much information as the meaning behind the words.

Book stores do not violate copyright law when you read a book on their premises without paying for it. Copyright law specifically concerns who is allowed to make copies. Yes, TPB can serve the same purpose as a physical library, but the law doesn't care about the market role of the infringers (mostly). It cares about whether or not a copy was made. That's why it's legal when libraries and bookstores let you read something you didn't pay for, but not when websites do the same thing. Accessing a library does not create a copy, but accessing a website does.

Right. Then I’m glad I never stopped pirating content.

If IA survives this lawsuit, donors who support web archive preservation may prefer not to have the largest web archive being placed at legal risk by experimental library policy.

For this reason, the web archive should be legally firewalled from any library operations, i.e. Archive.org can be separated into two organizations with separate fundraising.

I found their library to be very handy when my step-son forgot a book he needed for a high-school English class at his Dads. We tried to navigate Amazon to buy it but his account wasn't able to make purchase and then I found it available on here and we could check out a copy of it and he got his school work done. This was before they removed check out restrictions for the pandemic. There are lots of students who don't have credit cards or whose parents can't afford to buy ebooks or risk connecting their cards to their kids accounts where it could result in unplanned purchases. I honestly don't think authors will lose much money from people checking out books. Those who can and do pay for ebooks are unlikely to quit purchasing them but there are a lot of people without kindles & credit cards where something like this might be their only way to access the book.

Amazon has a thing called Amazon Household. Your solution would have been to create a 'teen' login for them and buy the books they wanted on your adult account, which they would then have access to via Kindle.

https://www.amazon.com/gp/help/customer/display.html?nodeId=...

> Adults can share digital content (eBooks, apps, and games) with children.

> This is how Internet Archive’s lending library works, and has for more than nine years.

Wow. And why do you think noone sued for nine years?? Maybe because as long as the IA behaved like that it was legal but they changed how they work because of COVID and became a pirate site overnight. They basically said "we do not know how many physical copies are languishing in closed libraries so we will just pretend there are infinite copies". That is of course nonsense.

This response confuses me a little bit. Although in their response the Internet Archive refers to the lawsuit attempting to stop controlled digital lending, I believe the lawsuit instead is looking at uncontrolled digital lending (the Emergency Library from IA) [1].

If there hasn't been scope creep on this lawsuit I feel this is a disengenous representation of the publishers argument. The publisher's argument was specifically that the form of IA's CDL (basically uncontrolled digital lending) is against copyright, an argument I personally agree with (in the legal sense).

[1] https://news.ycombinator.com/item?id=23379775

Generally when a party deliberately misrepresents an opponent's position like this, it's because their own position is legally fucked and they're trying to move the goalposts so that they have a chance. Alternatively, they've already assessed their chances at zero and are trying to lay the groundwork for an appeal.

Reading through their response (the actual filing, not their press release about it), it appears that the IA has admitted to a number of claims [1] that would constitute copyright infringement, so it appears they're hoping either for a miracle or to take this to a higher court and try to get some sort of ruling that would dramatically alter copyright law in their favor. Neither is very likely to happen.

[1] For example, they admit that their own founder and executive director stated that the IA didn't seek consent (i.e., a license) from IP owners prior to launching the uncontrolled lending program that is the National Emergency Library. With that admission alone, the judge could grant summary judgment for the publishers on at least a few claims prior to reaching the discovery stage.

> the IA has admitted to a number of claims [1] that would constitute copyright infringement, so it appears they're hoping either for a miracle or to take this to a higher court and try to get some sort of ruling that would dramatically alter copyright law in their favor. Neither is very likely to happen

When they made the announcement I was very curious as to how they thought it would be legal or how they thought they would get away with it if it was not.

I'm quite surprised that they simply didn't have any realistic plan for this outcome.

It's a shame, because I think their core cause is a good one, and now they're likely facing a mortal blow for something transiently related.

There has been scope creep.

> 8. IA defends its willful mass infringement by asserting an invented theory called “Controlled Digital Lending” (“CDL”)—the rules of which have been concocted from whole cloth and continue to get worse. For example, at first, under this theory IA claimed to limit the number of scanned copies of a title available for free download at any one time to the number of print books of that title in its collection—though no provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies.

> 10. IA’s self-serving assertion and promotion of “Controlled Digital Lending” as both an actual legal doctrine and a justification for its infringement affronts the most basic realities of the law and the markets it propels. As a matter of markets, IA’s one-to-one conflation of print and ebooks is fundamentally flawed. Digital books are inherently different from physical books. They can fly around the world in a second; they do not degrade over time as physical books do; and they require devices to read them. For these reasons, the Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books. IA’s end-run around these differences and restrictions is aggressive and unlawful. In short, all of the reasons why IA has scanned print books to create digital files are the very same reasons why authors and publishers provide digital books under different terms than print books—as they are entitled to do under the Copyright Act.

https://publishers.org/wp-content/uploads/2020/06/Filed-Comp...

They're doing the techie thing of hilariously misrepresenting copyright law so badly that it seems morally indefensible to have one at all. Sort of like how sovereign citizen movements misrepresent traffic law and the tax code.

I cringe at "information wants to be free" type arguments about as much as I cringe at "The Internet is a series of tubes" type arguments these days...

While I understand why authors may not like the IA’s emergency program, I find the language to describe it confusing. A number of comments here use the term “uncontrolled digital lending”, and it took me a bit of reading to discover that the files still had DRM and would “expire“ after a set time. The phrase paints a picture of the IA sending unprotected PDFs to anyone and everyone. I think it is confusing at best.

Authors, I don’t think the confusion does you any favors. I was more sympathetic to your concerns before I read your comments.

They distributed an unlimited number of copies - not backed by anything physical. That being the case, there is effectively no time limit on how long you can borrow something (you can just re-check it out).

That is just straight up piracy. They lent copies they did not own.

They tried to justify it by saying libraries were closed but they ignored the fact that more than 90% of libraries already have digital lending programs that went through the due processes and are legal.

> They distributed an unlimited number of copies - not backed by anything physical.

So like money?

The supply of money is definitely not unlimited... if it is I’d like a few million dollars please.

The effective time limit is the end of the time-limited program.

> These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons. This form of digital book burning is unprecedented and unfairly disadvantages people with print disabilities.

Book burning? It is not a politically motivated campaign to destroy books, or a witch hunt to root out deviant social or religious teachings. It's a dispute over copyright law. I believe that Ray Bradbury, were he alive today, would have likely come out against this characterization. The Science Fiction and Fantasy Writers of America (SFWA), which Bradbury was long associated with, has been critical of the IA's actions from the beginning (https://www.sfwa.org/2020/04/08/infringement-alert-national-...).

In addition, I thought the justification for expanding controlled digital lending was around COVID-19, not rights for people who have low vision. Was this issue a central part of the the IA's reasoning before the lawsuit?

> justification for expanding controlled digital lending was around COVID-19, not rights for people who have low vision. --

My memory tells me it was both. With libraries closed they were not able to provide adequate access to those with disabilities.

Again nearly all library systems already have a digital lending system in place

Having system in place (90% of libraries do) doesn't mean all or even most of the books they have physical copies of are available in digital form. The question isn't whether libraries can lend digital books but if they are able to lend the same ones IA did. Just because 90% of people are capable of running doesn't mean that they can run as fast as Usain Bolt.

Here is a searchable collection of the books available to libraries from Rakuten Overdrive, the most popular digital lending system in the US (IIUC).

https://www.overdrive.com/explore

If you search for Charles Ross' Edward IV (https://archive.org/details/edwardiv00ross), you find:

https://www.overdrive.com/media/3099728/edward-iv

which lets you find if your library has a copy or to find a library that does. It's a trick. "There are no libraries with this title available that match your search criteria [my search criteria was 'all libraries']."

How about Sailors and Scholars: The centennial history of the U.S. Naval War College (https://archive.org/details/sailorsscholarsc00hatt)? It's not available from OverDrive. But then it's been donated to the IA and is freely available. But I'll bet the publishers want it deleted anyway.

Or Introduction to Information Retrieval? I would advise trying to borrow it as it's probably very out of date, but still kind of interesting. OverDrive lists it (https://www.overdrive.com/media/179471/introduction-to-infor...), but no libraries have it. Neither does the IA. Maybe I should scan and donate my copy.

Ray Bradbury died in 2012. I don't think you can freely make the association that because he supported the SFWA, he would have supported their stance on this.

>In addition, I thought the justification for expanding controlled digital lending was around COVID-19, not rights for people who have low vision. Was this issue a central part of the the IA's reasoning before the lawsuit?

They're grasping at straws and trying to see what protections they might to be able to slip under, since what they wrote in their announcement is a slam dunk case against them [0].

>And so, to meet this unprecedented need at a scale never before seen, we suspended waitlists on our lending collection.

[0] http://blog.archive.org/2020/03/30/internet-archive-responds...

> It is not a politically motivated campaign to destroy books

You don't consider a legal dispute over copyright to be political?

It's political but it's not capital-P political.

Politics is a sufficiently broad idea that virtually all the machinery of society would qualify, but what's being spoken about here is the kind of politics that has to do with propaganda and information control. And indeed, this is not that.

There are many different usages of the word. The one in legal theory that, for example, is used by courts to exclude cases of a "political" nature is of course different from the one used in academia or else all cases would be forbidden!

I think copyright is about information control.

I'm not trying to be pedantic, I just don't think there's much difference between "Politics" and politics, and filing a lawsuit is a clearly political act. Politicians write laws so that they can be used in court. Even more straightforward-seeming court cases, like murder trials, are political in that the government can't apply every law to every person all the time, so it has to make political decisions about what laws and what people to focus on.

In this case, a large organization is asking the court to interpret a law that effects a huge portion of American society and determines when and how information can be spread. In the US, the court's interpretation of a law is as important if not more important than the legislative process that created the law.

I really can't see a resemblance here with the kind of nefarious machinations with an agenda that are being referenced.

I think NoSorryCannot is making a distinction between object-level political motivations (ie, the books themselves are political and the burners wish to deny people access specifically to the viewpoints represented within) versus meta-level political motivations (the burners want to establish a precedent that they are entitled to burn books, but don't have any particular objection to the content of said books).

I don't see what Bradbury has to do with that. Yeah, he wrote a book that involved book burning (which he argued wasn't the main point anyway), but that doesn't make ghosts people have of him in their minds the final say on the subject.

> Was this issue a central part of the the IA's reasoning before the lawsuit?

Have we ever received a breakdown of how these decisions were made by IA? Was this a single person shooting from the hip? Or the product of a deliberative process?

> It is not a politically motivated campaign to destroy books, or a witch hunt to root out deviant social or religious teachings. It's a dispute over copyright law.

Copyright law was created as a means to root out “scandalous books and pamphlets”. https://en.wikipedia.org/wiki/Copyright#History https://en.wikipedia.org/wiki/Copyright#Conception

Are the origins relevant? I don't think copyright is typically used for those purposes today

Sometimes it is. Just look at how Disney uses copyright to keep its earliest animations under wraps (the ones modern viewers might find somewhat offensive).

The lawsuit seeks to force the Internet Archive to delete all the copies of scanned books, including the copies of books they physically own. This is in addition to preventing them from lending out scanned copies. How is that not book burning?

I do not personally have the problem, but I believe the accommodations necessary for many people with low vision to read a book are easier with an electronic copy of the book; i.e. zooming in on a PDF rather than using a book magnification station---effectively a book scanner without memory. And yes, this has been one of the goals of IA's book scanning program for quite a while.

> I believe that Ray Bradbury, were he alive today, would have likely come out against this characterization.

Bradbury was against ebooks so he would have been against the whole thing.

"The publishers’ lawsuit does not stop at seeking to end the practice of Controlled Digital Lending. These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons."

If nothing else, that should prevent anyone from supporting the publishers.

What IA did was counterproductive to the concept of CDL. I think most people agree on that. But what I find disheartening if that the majority voice is that what needs protecting more is not people's access to the information but publisher's ability to profit off of it. On the one hand this is a very HN response so I shouldn't be surprised. On the other I simply find it sad.

Would it be nice if we did away with book scarcity and paid all authors exclusively through Patreon? Sure, that'd be great, but we can't force authors into that scheme against their will.

Peoples' access to that information was and is not in danger. If you can't afford a book you can take the tiny legal risk of pirating it yourself. Lending books is cute and handy but the important part of the IA is, well, the archive of the internet. People are upset because they put the archive in existential danger by pulling an incredibly stupid bit of legal activism. It's like protesting the illegality of raw milk by feeding it to your immunocompromised child.

> Sure, that'd be great, but we can't force authors into that scheme against their will.

We certainly can't force authors to continue publishing, but we wouldn't be forcing them into anything by revoking some or all of the privilege referred to as copyright. That would simply be a long-overdue recognition that we no longer consider this experiment in social engineering to be in the best interest of society.

Getting rid of copyright for content may lead to extensive DRM for books; I'm not sure whether you're in favor or against, but HN seems to hate DRM.

I certainly don't care for DRM, but I recognize publishers' right to use it—so long as it isn't backed up by force of law. We can't force anyone to make content available in any particular format, after all. However, most of the effectiveness of DRM (such as it is, which isn't much) comes from the fact that you can't legally talk about how to circumvent it or distribute tools for doing so. Obviously that needs to go; it's an even more blatant violation of freedom of speech than copyright itself.

From a purely technical perspective DRM on books is particularly futile. If the page is visible to a human reader then it can be imaged (perhaps with an external camera) and OCR'd at least as easily as scanning a physical book. DRM for audio files is in a similar position—not quite lossless, but very close. With video there is a bit of quality loss from the capture and re-encoding process, but nothing too serious. It's a bit more effective with interactive content such as games but still far from unassailable.

If we revoke those copyright protections for the most part the only people that will be able to afford to ‘write’ or create art will be the independently wealthy. How many books would not be written? Protecting copyright means more is created and shared not less.

This is obviously false. People who are far from independently wealthy write and create art right now despite never having any realistic expectation of receiving a dime for it, regardless of copyright. Frankly, if your main reason for writing is the misguided hope that it will make you rich then you probably don't have anything worthwhile to say. Revoking copyright probably would reduce the volume of publications in this area; to which I say "good riddance". On the other hand, if you do have something to say, it's never been easier to get it published and distributed to a worldwide audience at practically zero cost.

Copyright is sowing conflict, crippling our technology, and impoverishing our public domain—our shared culture—all to maintain subsidies for something that never needed to be subsidized.

> People who are far from independently wealthy write and create art right now despite never having any realistic expectation of receiving a dime for it

So rich people and hobbyists - everything in between is gone.

> if your main reason for writing is the misguided hope that it will make you rich then you probably don't have anything worthwhile to say

I don’t think all creators are just hoping to get rich - how about make a living doing something they are passionate about?

Corollary: When youtube allowed creators to monetize content, did the quality of content on YouTube improve? Absolutely it did. So many educational channels only exist because they can make a living doing it. Pre-monetization it was just hobbyists.

Similarly copyright enables authors, artists (and youtubers for that matter) to make a living creating.

> Copyright is sowing conflict, crippling our technology, and impoverishing our public domain

Take that kind of crap to /r/im14andthisisdeep you clearly have no bearing in reality. There is a reason every country in the world recognizes and strives to upholds copyright.

Have they been sued over digital lending in general or because they lent out more digital copies then they owned physically?

Either way, I think that there is no legal "digital lending". What makes people buy things is that they can not get them for free easily. Copyright is there to benefit the author. It puts a certain burdon on the consumer: They have to buy a copy. Or - if they want to breach the law - they have to find someone who illegally makes a copy for them.

"Digital lending" would allow the 3rd party to legally make a copy to the consumer. Because bits are not lended. They are copied. That is not how copyright sets the balance between author and consumer.

I would be surprised if the IA wins this.

Hi, I'm an author, so I have a vested interest in copyright being respected.

Are you familiar with the first-sale doctrine?

https://en.wikipedia.org/wiki/First-sale_doctrine

It basically says that once a person buys a creative work, they can do whatever they want with it, including selling it or lending it.

Controlled Digital Lending is a system that basically says, "Let's make the first-sale doctrine for digital books work the same as it does for physical books."

So, a library purchases a digital copy of a work. Then it lends out that copy, and until that copy is returned, it does not lend out any other copies of the work (even though it is technically possible to do so).

Note that while the library patron gets to borrow and read the work for free, the library has already paid for the work, so it is not as if this erodes copyright any more than it does for print books.

> So, a library purchases a digital copy of a work. Then it lends out that copy, and until that copy is returned, it does not lend out any other copies of the work (even though it is technically possible to do so).

The issue is that IA decided to forgo the rule that they won't lend out copies of the book until it gets returned and instead decided to lend out as many copies as they wanted at a time.

Yes, I agree with you, and I think IA's uncontrolled digital lending was a gross violation of copyright.

I was just explaining the Controlled Digital Lending system because the person to whom I was responding was saying that all forms of digital lending were problematic.

This case isn't about the IA's Controlled Digital Lending program, which is a thing most US libraries already do, and in fact did long before the IA launched their own CDL library program.

This case is about the IA's National "Emergency Library" which was uncontrolled lending, which is not a thing covered by the first sale doctrine or any exemptions provided for by copyright law.

> … Controlled Digital Lending program, which is a thing most US libraries already do …

No, what most libraries do is buy separate (and more expensive, and more restricted) licenses for lendable digital copies of certain works–not everything in their archives is available digitally. The IA's pre-COVID CDL program represented a significant step forward in terms of treating 1:1 digital lending of scans of physical works as equivalent to physical lending.

> … National "Emergency Library" which was uncontrolled lending …

The controversy is primarily over the mostly controlled National Emergency Library, which wasn't quite as controlled as what they were doing before but still had DRM and limits on the duration of the lending. Some few works may have had more copies checked out at a time than the IA had physical copies in their inventory, yes. Consider this an example of time-shifting. The borrower doesn't get to keep the copy, they just get it a bit earlier without waiting in line. On the whole I'm certain the average number of copies per work would have been much less than one, even without considering physical copies languishing in other libraries that were inaccessible due to COVID.

This case, however, is objecting to both the NEL and the previous CDL program. The IA is obviously going to focus on the claims regarding CDL, where they have a stronger defense, while the publishers' propaganda is all about the NEL since that wins them more sympathy.

My point is that you cannot "lend" bits. Nor can you "return" them.

The meaning of "digital" is that the original never moves. Otherwise it would be "physical".

> Have they been sued over digital lending in general or because they lent out more digital copies then they owned physically?

The publishers are suing over both, though the lawsuit was rather obviously prompted by the latter (ie. The National Emergency Library).

Meanwhile, the IA is pretending (or implying) in its public statements that the lawsuit is only about CDL in general and eliding or minimizing the role the NEA had in poking the publishers hard enough that they pulled the trigger on this lawsuit.

It shouldn't be particularly surprising, given the adversarial nature of the court system, that the publishers, once they decided that the NEA gave them sufficient ammunition to prevail in court, would decide as a tactical matter to tar CDL in general with the same brush. I mean, why wouldn't they make their claims as broad and expansive as possible?

Nor is it surprising that the IA is desperately trying to walk their misstep back with oh-so-careful statements without actually acknowledging that the NEA was a bad move on their part.

What is surprising is that the IA so readily handed the publishers this pretext in the first place.

True. And the tragedy is had they actually tried to raise the money to buy all the books they needed, they probably could have kept waitlists to nearly zero and avoided this whole situation.

Many years ago,when I was a teenager with no money to buy all the nice magazines I wanted, I came with an idea. I thought how nice it'd be to buy up all the issues of all the magazines, upload online and then charge a small few to read them. Then I started thinking of the logistics of such thing, including how would the publishers react.I came to a conclusion that any attempt of this sort would be crushed by the publishers...

Manga community ran this way for many years. Issue would release in Japan. And an hours that would be perfectly re-drawn and translated into English.

With a lot better quality than the official publishers will do months later.

Now they’re officially free online quickly. You pay if you want older ones.

I mean, if you were just stealing content from actively-running magazines then yeah.

But if you pitched the idea to publishers with a cut-in then it may have sold.

Archival efforts are a huge lift—especially from print to digital. But current issues have operated that way on several platforms over time.

Ultimately Apple bought up the last major effort in that space (Next Issue/Texture) and merged/turned it into Apple News+.

There are others, like Pressreader, though: https://www.pressreader.com (edit: changed to plain url)

One of the magazines I work for took it upon themselves to render an archive of their print and digital issues dating back to the early 1900s. I think they plan to charge a fee at some point to access them, but they are currently available for free:

https://archive.macleans.ca/issues ("Browse All Issues" to see the range of decades available)

It was a very large undertaking—so based on the knowledge of that experience [in which I was not involved], there is probably a business in building a collective, or at least brand-specific, archive for magazines. I'm sure some businesses exist in that space already—but something more user-friendly and centralized access would probably have its base.

I get a bit of a Zhou Enlai "it is to early to say" vibe on this (btw he was actually responding to a different question probably and not the 'what do you think about the french revolution' question but anyway)

The sense of it for me is that the fight is really important and I'm glad they are having the fight, sad-but-glad. But, I suspect they are going to be celebrated for a victory MANY YEARS YET TO COME and in the meantime take heinous pain on this one, and functionally lose the battle and the war maybe.

Sometimes, the ones who lose the war have history on their side. Germany won in 1871. The reparations they screwed out of france cause massive economic pain when they ran through the economy, and at root laid the seeds of WWI. Did Germany really "win" ?

Publishers have the shitty IPR laws on their side. They will probably win. But in destroying the Internet Archive, (god forbid) they will cause us, consumers to visit the "you don't really miss what you've got 'till its gone" and question the whole deal over Kindle IPR, the book to rent, the disappearing books, the books never uplifted, the geo-locked books...

While digital lending is a great idea and has many justifications, the legal risks are clear.

What is most troublesome is that no one at IA took appropriate action and implemented a corporate separation so that the digital lending enterprise was legally & financially firewalled from The Internet Archive's core mission. (That is exactly what the corporate structures are for.)

Thus, the entire IA mission is now at risk due to this high-risk activity without protection.

I hope they can get it sorted

If they don't, who will back up the Internet Archive?

If books were invented today how would publishing work?

Okay, so what? It will just land on a TOR node connected to IPFS.

What fraction people in the world have ANY IDEA what that sentence means? And how does that square with the Internet Archive's mission?

We all know how powerful capitalism is, but our culture still doesn't grasp its bounds. I think this is most true with knowledge systems: journalism, library-lending, education.

I'm not sure what the best system structure is for these areas, but I'm confident that in these cases, profit-seeking feedback mechanisms don't align with society's goals.

The goals (in my opinion) should be heightened knowledge integrity, increased accessibility, resilient persistence, and ease of applicability. So – with these goals in mind, what is the right system structure for library lending in the digital age? For journalism? For education?

I'm sincerely unsure and super curious.

I think one issue is - what are society's goals?

Also, in think people need to realize we are in a time of transition. Power is really moving around much like after the printing press.

It takes awhile for people to learn new media literacy skills.

In the past seeing something published meant it had at least the agreement of a few people and they took the time to do it, now it means nothing. It's not a signal anymore.

Capitalism is not the issue here. Copyright Regulations are market shifting regulations that means normal market feedbacks do not exist given we as a society through our laws grant a monopoly to the creator in ways not seen in other markets

This artificial scarcity is what causes the appearance that "capitalism fails" for knowledge systems when in reality it government regulations that are the source of the failure.

The continued extension of copyright over the years has increased this failure and created a huge whole in public domain.

How do you propose to adjust capitalism's core reliance on scarcity and supply and demand (supply of a digital good is infinite!)

I have never seen any serious proposals, hence we're trying to uphold capitalistic structures by enforcing artificial scarcity, to build a marketplace where capitalism's assumptions hold. I don't think you can tear down copyright and artificial scarcity without tearing down capitalism.

I dont think you can eliminate the artificial scarcity, but I do support returning to the Orginal Copyright terms of the US

14 Years to the content creator, and 1 extension that has to be applied for by the creator personally (not a business, not an estate)

For Corporations the copyright term is 14 years, for an individual creator it would be at most 28 years.

none of this 100 years+ copyright monopoly we see today under current law

You have to match infinities with infinitesimals.

This is a pressure on our monetary system to enable efficient payments of ~$0.10. You could say that the ad industry's very existence and success is a statement and proof that our monetary system is too inefficient.

Google is filling a huge hole in the modern instantiation of money, which makes their success look inevitable.

> How do you propose to adjust capitalism's core reliance on scarcity and supply and demand (supply of a digital good is infinite!)

There is nothing wrong with capitalism when it comes to scarcity or supply and demand. It just doesn't apply to the supply of digital goods, or any other good which is superabundant (i.e. not inherently scarce).

Labor is scarce: the labor of writing new works, and the labor of distributing them. To the extent that there is demand for new works we will find some way to pay for the labor of creating them which doesn't involve undermining capitalism—along with people's natural property rights—in order to impose artificial scarcity. There are various existing, proven models to choose from which have resulted in quality productions in the past, including patronage, crowdfunding, sponsorship, donations, and open source. Each of these has its own strengths and weaknesses and the eventual solution will probably include all of them to some degree along with others we haven't thought of yet.

It only creates a monopoly for other's books. No one is stopping you from creating your own book and giving it away for free. It's kind of like the plagiarism rules from high school.

You really should consider the other part of the equation. Authors need to eat. They can only eat if publishers pay them. Publishers will only have money if readers pay for the books. No "monopoly" means no paid authors. Oh maybe some rich people will write as a hobby but not the ones who need a day job.

>>It only creates a monopoly for other's books.

That is far from "all it does", YouTube is a prime example of the suppression forces inherent in copy right law, and the amount of abuse that occurs chilling speech and public participation

>>You really should consider the other part of the equation. Authors need to eat.

No I really should not. That is not the goal nor desire of copyright law. profit is not the reason copyright was added as a constitutional power of the US Government nor should that be the metric for which we judge the effectiveness of copyright law

>. They can only eat if publishers pay them.

Again this is incorrect, and becomes more incorrect as time goes on. Through Copyright publishers act as gate keepers which prohibits new an innovative ways of funding creative works beyond the traditional copyright model

> No "monopoly" means no paid authors

There is nothing further form the truth than a statement that absence copyright all creative work would cease. OpenSource software, Open Documentation Projects, and the huge amount of Free Culture works fly in the face of that statement.

Further it is provable and self evidently false that publishers and traditional publishing models are the only or even best method to fund creative works in the 21st century

[1] https://questioncopyright.org/promise

[2] https://www.youtube.com/watch?v=mhBpI13dxkI

Youtube is in fact a great example of the flexibility of the copyright program. You have millions of hours of professionally-produced work, and millions more hours of people commenting, analyzing, critiquing, or otherwise engaged in the marketplace of ideas with respect to those works...all within the framework of the copyright system. That doesn't include the billions of hours of non-professional content uploaded to the site.

That is not the goal nor desire of copyright law. profit is not the reason copyright was added as a constitutional power

In fact, providing creators with profits is exactly the reason copyright law was enshrined in the Constitution: to incentivize creators to do their creating in the US. (The copyright and patent system merely formalized and codified an exclusive monopoly system for inventions originally developed in Europe during the Middle Ages.)

>>Youtube is in fact a great example of the flexibility of the copyright program.

I can not believe anyone can say with a strait face that YouTube is an example of copyright working

The number of people that get hit with false DMCA, people claiming copyright on NASA videos for example, or video clearly in the public domain, or not accounting for Fair use at all (which given your authoritarian copyright maximalist other comments I bet you support removing fair use completely from copyright ) points to a Broken System

DMCA is abhorrent law, as 95 year copyrights, no sane person would support them

It's not that our culture still doesn't grasp its bounds but that capital's bounds are in fact ungraspable -- in its infinite flexibility, any attempt to grasp and contain it will result in a new way for it to exploit and expand. It can wield regulations as weapons, eat revolutions, and yes, break any system for lending in the digital age.

Yes, perhaps our issue is exactly that: our society refuses to define the bounds.

Commerce is a subsystem of a larger system. Like in any system, each constituent part affects the whole - but at some point the feedback loops that serve one subsystem start to harm neighboring subsystems and even the system. Thus, for pragmatists: bounds.

When ads erode journalistic quality, when universities become tools of class division, then we can clearly see - if we’re looking - the bounds of capitalism and commerce-reliant feedback loops. The optimal structure is scarcely uniform.

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