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Comment by jjcon | Hacker News Reader

> 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).

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'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.

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.

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...

"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.

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.

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.

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