Archive.org Seeks Summary Judgment in Lawsuit Filed by Publishing Companies

- lending is limited to the original bought copies (a library cannot create more copies of a book for further lending)

- digital lending requires sending the data to another device creating a copy

- digital lending has near-zero marginal cost (specially at scale)

- digital borrowing has near-zero marginal cost (no library membership, single click borrowing for some minutes or some hours with single click return)

IMHO I think Archive is legally in the right and it is only due to the previous circumstances, Archive.org collaborating with _a lot_ of libraries, and the tension between the older/traditional socialist/communal lending practice vs newer/contemporary private property laws that allows this conflict to emerge.

Now, as far as I understand, it happened that no book was likely borrowed more times than the number of physical copies held by archive.org + the libraries they had partenere with. But the process they normally had in place to prevent this was explicitly decided to be ignored during the pandemic.

If lending had exceeded the number of available purchased/physical copies, then it wouldn't be "working around", it would be "violating" copyright law. I agree with you that copyright law is horribly broken as-is, but I think it's irresponsible of the Internet Archive to play so fast and loose with it. A monetary judgment against them could be devastating to their effort to preserve history.

Whereas if the Internet Archive suspected what they were being accused of wasn't legal, summary judgement wouldn't be appropriate, and they might want to go to trial to try to prove their case that they aren't actually doing what they're being accused of?

Actual educators probably hate this shit almost as much as students do. Unauthorized learning should be not a punishable offense. I assume the professors who insist on the newest editions of textbooks are either getting kickbacks (certainly true when they wrote the book) or they were forced to by the school's policy and someone higher up is getting paid by publishers.

I don't think I ever was assigned to answer questions from a published textbook for credit at university. If we had such question-based assignments, the questions were written by the lecturer to fit the course material.

We were recommended to get certain books, but they were never required to complete the course.

When a library buys a physical book, they can loan that copy out to patrons. They own the physical book.

For over ten years now, libraries have taken a single physical book, scanned it and removed the book from circulation, and lent out a single ebook. This has been a common practice founded on an interpretation of fair use laws, which allow format shifting (recording a vhs to DVD, for example) and lending, and also copyright laws which explicitly mention the legality of digitizing books for accessibility reasons, to serve the visually impaired.

This "one physical book in storage equals one ebook" lending is the "controlled digital lending" the archive does, and is the issue at stake in this suit. Publishers argue that libraries should not be allowed to lend any ebook except those which they set a specific lending limit to- charging the library a fee every X number of checkouts or every X number of months.

This is obviously not how lending physical books works- the library can buy a hardcover and loan it out to patrons, repairing the spine and binding over and over, eventually moving it to a special collection for viewing on site when it's hundreds of years old and can't be handled.

As a seperate, and legally shaker issue, the internet archive created the "national emergency library" during the pandemic. The logic here was that nearly every library in the country was closed, there were within those libraries physical copies of these books that weren't being lent out, and so the same concept as controlled digital lending could apply. This move by the archive was signed onto and supported by thousands of libraries around the country, who agreed that their uncirculated physical copies could stand in for the extra copies checked out of the archives emergency library.

It's important to note the archive does not loan any book published in the last five years, period. This is a self imposed limitation that your neighborhood library does not work under, but it means that the "lost sales" publishers allege were not of new books. Nobody ever got screwed out of bestseller status because too many library patrons read their book, and that goes doubly so in this case.

All that said, the issue isn't whether the internet archive messed up with it's national emergency library. It's whether the whole concept of loaning a book is limited to printed copies, and thus ebooks must be repurchased by libraries ad nauseum-- or if libraries can keep a physical copy in a storage room and loan out a digital copy one at a time, exactly as they do now.

Bottom line, our libraries (and especially their ebook collections) will be much poorer if this decision goes to publishers.

The publishers would rather rent them a digital copy for a lot of money, that is either time-limited or has a cap on the total number of times it can be checked out before the Archive would have to pay again.

At any rate, "changing the rules" can't be a blanket get-of-liability-free card, can it? I mean, if you walk into a convenience store, grab a Coke, and walk out without paying for it, you can't claim "I'm not disregarding payment, I'm changing the rules, rules in which money plays a role." Money plays a role, in the sense that you are expected to pay for the Coke and if you do not, it's theft.

It's uncomfortable to grapple with this, but the publishers were largely looking the other way with respect to the IA's lending library up when they were following the principle of "we've scanned X copies and thus can lend out X copies". Technically, that may still be considered copyright violation, in that the publishers didn't give permission for the copies to be used that way. But they let it slide until the IA decided that the closures of libraries during the pandemic constituted a rationale for "we've scanned at least one copy and thus can lend out as many as we want." SamReidHughes and I don't always see eye-to-eye on many things (hi, Sam), but legally speaking, he's absolutely correct, even if you'd prefer "flagrant copyright violation" rather than "piracy."

I can't believe that the IA did this without knowing full well it was inviting a legal challenge. The original CDL concept at least seems plausible to me, and in any case, I think the terms publishers offer libraries for digital copies are frequently bonkers (e.g., pay $X for a maximum of Y lending times, then be forced to buy a new digital copy). But either the IA deliberately violated copyright with the intent of trying to change the legal standing here -- which necessitates this trial happening -- or they deliberately violated copyright because they are, not to put too fine a point on it, blooming idiots. I would like to think the former, but I'm not sure they have very solid ground to stand on.

I think it's worth considering not just the number of works, but also the number of copiers.

In the days when copying meant printing presses, the physical act of making copies was overwhelmingly a commercial activity performed by a relative handful of businesses. Making a copy of a substantial work was not something the average person had a serious opportunity to do even once in their entire life, so copyright law only meaningfully restricted a small number of entities. By the mid-1980s, with the proliferation of human-scale media technologies like the photocopier, VCR, camcorder, tape deck, and floppy drive, the number of meaningfully regulated entities began an explosive growth that has not stopped since. Copyright law has been amended with hacks like the AHRA and DMCA, but has never come close to a true reckoning with the modern reality of a copy being just a click away for countless millions of people, never mind cultural phenomena like meme generators, mashups, and fanfic that tend to functionally treat authorship less as a matter of negotiable consideration and more as a matter of tribal history.