Hacker News Reader

Comment by boomboomsubban | Hacker News Reader

Huh, seeing their full argument written out makes the temporary CDL policy make a lot more sense.

They were already contracting with other libraries to increase the amount of out-of-circulation copies they could lend, and with 90,000 libraries closed they assumed removing any restrictions would still keep them well under the amount of out-of-circulation copies available.

And they were likely right, if "The Lion, The Witch, and The Wardrobe" only had 888 lends at most a few books would reach anywhere near the total out-of-circulation copies. It makes the publishers argument look less like "we were robbed" and more like "we should have made even more cash off the pandemic."

View on HN

CDL being “Controlled Digital Lending”

Thank you

Compare to Aereo which was leasing subscribers a dedicated antenna and DVR to distribute OTA television.

And famously lost in the Supreme Court: https://en.wikipedia.org/wiki/American_Broadcasting_Cos.,_In....

Except libraries have special carve-outs for copyright, while the communications act requires broadcaster consent for "multichannel video programming distributors."

Ultimately the lesson of Aereo is that it is incredibly difficult to predict court rulings when in anything close to a gray area. Aereo had a viable case after the Fox v. Cablevision precedent, but ultimately lost.

So they let people borrow as many books as they wanted which obviously violates copyright law but accidentally this didn't surpass the number of available books and this makes the whole thing legal? Bold strategy.

Since when does letting people borrow books from a library violate copyright law?

I could go up to my local library with a dump truck and load it up with books if I wanted to, I'm not making copies, so I'm not violating copyright, period. Copyright protects the publisher's ability to proliferate the stock of books, not to police the use of existing stock.

There is an anachronism were the following circumstances collide:

- 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.

The GP was referring to the fact that Archive.org let, in principle, an unlimited number of people borrow the same book. A library has a limited number of copies of a book, so if a million people come in and want to borrow it, only X will get to. Archive.org would have served a million copies of that book according to the emergency policy.

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.

> Archive.org would have served a million copies of that book according to the emergency policy.

Does it matter what they might have done under different circumstances?

Even if they weren't checking the limits, if they got lucky and never exceeded the number of copies they had licenses to share, then how did they infringe anyone's copyright?

> if they got lucky and never exceeded the number of copies they had licenses to share

where is this stated

> 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 partnered with

>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.

This is not their argument. They previously had libraries offer copies of books, but during the time of crisis they decided to act quickly to repace the 650 million books now out-of-circulation. Only around a hundred libraries signed on on support.

I can understand the argument as for why the IA shouldn't have done this, but agree with the IA that in these unique circumstances it should be fair use. Either way, the lawsuit is about ending the entire CDL policy, not the short term change.

Its a factor of 1:1 or 1:many scaling.

Except it isn't. Every time a book was digitally lent, it became inaccessible to anyone else. A digital lend is the same as a physical lend. They didn't copy any books.

There is no grounds for a civil lawsuit if no damage was actually done. Furthermore, the parties bringing suit have to be the ones who were damaged.

I suppose it also makes it harder for the publishers because they now have to the homework of proving which titles would have hypothetical been over subscribed of the gazillions of books lent by archive.org and of those proof which specific publisher was damaged.

The borrowing feature is an amazing way of working around utterly broken copyright law, which is in its current form more or less a tax and brake on scientific and cultural progress.

From the internet archive I can now search through and read 60-year-old self-published technical manuals, obscure Hungarian journal papers, historical archival material only kept in one French museum, soviet math and physics textbooks, etc. which is difficult or expensive to find physical copies of, and not being published and distributed anymore.

Even better, people can use those links as sources in their own work (e.g. in Wikipedia articles) and anyone else interested can follow-up with original sources instead of just taking things on faith because the references are too much bother to track down.

All of this material from the past ~century is otherwise locked away by copyright law even though nobody was making any money from it.

> The borrowing feature is an amazing way of working around utterly broken copyright law

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.

> but I think it's irresponsible of the Internet Archive to play so fast and loose with it

I don’t think that they did. But for the sake of discussion, I also don’t think it’s irresponsible. If copyright law is horribly broken (I agree), the most likely remedy is in court. You can’t get to that remedy with a case which has a reasonable chance of success if you don’t take that chance.

So you're saying that challenging copyright law by breaking it is worth the (IMO fairly probable) possibility of being hit with a fine that could destroy IA's ability to continue their primary mission of preserving digital and physical history?

I really just cannot agree with that. IA shouldn't be broadly challenging copyright law; at most they should be challenging laws that interfere with their primary mission.

> I think it's irresponsible of the Internet Archive to play so fast and loose with it.

That's what I think too. Despite what the HN hivemind wants to think, this was a crystal clear act of piracy and the Internet Archive will suffer for it. I have no idea what they were thinking. They would need to demonstrate they had a strict license counting system in place where libraries put in what they had and the system counted how much it borrowed which clearly they didn't have , they just said "go ahead and borrow". Say, they borrowed out 10 copies of a work at a time, this would be allowed if they had 10 licenses of it and if they can't show they had it which I bet dollars to doughnuts they didn't then they will be forced to damages for each of those. I do not even know where the damages will stop. This will be a terrible massacre.

Dura lex, sed lex!

The judge will throw out the argument "there was in theory this many copies or even more at closed libraries" -- just because it is true, the law simply doesn't allow for this.

I only wish the best for IA but they completely botched this. I can't understand how, they have good lawyers.

Hell, https://controlleddigitallending.org/ only dares to say

> When CDL is appropriately tailored to reflect print book market conditions and controls are properly implemented, CDL may be permissible under existing copyright law.

It does not say "it is".

Ps. if you are downvoting for this, where am I wrong? Where is this allowed in the Berne Convention or US Code 17? What do you think applies here if not https://www.law.cornell.edu/uscode/text/17/108 ?

> Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work,

No more than one copy. Go ahead, show me the carve out for, I dunno, inaccessible works or something that overrides this. This is the law, your preferences -- which are the same as mine which loves the Internet Archive and doesn't much book publishers -- have zero relevance here. You downvote because you don't like what I say or think that I want harm for the IA and it's not true -- but they will suffer for this. How can you not see this?

>Go ahead, show me the carve out for, I dunno, inaccessible works or something that overrides this.

The IA's argument is that it's covered under section 107 as "fair use" as it's a nonprofit educational act with seemingly no negative effect on the value of the work.

You can disagree but you're tone is that you're absolutely right and anyone who doubts it is denying reality.

> They would need to demonstrate they had a strict license counting system in place where libraries put in what they had and the system counted how much it borrowed

They already do have such a system. If they "have" multiple copies of a book edition, then the "borrow" period is 14 days. If they have only one copy, then it's only one hour, so that the book remains more available to others.

This means that they are aware of how many "licences" they hold and reference count the accesses to each edition against that figure.

Whether they indeed bypassed that system for the NEL and provably allowed excessive accesses being their holdings, well, that's for the court to hear.

>Whether they indeed bypassed that system for the NEL and provably allowed excessive accesses being their holdings, well, that's for the court to hear

Pretty sure this summary judgment openly admits they did.

From the summary judgement request:

> The Internet Archive’s belief that the NEL’s loaned copies would be fewer than the number of existing non-circulating physical copies proved to be correct.

So the Internet Archive claim it didn't, though it's not providing complete and concrete proof that no title went over the limit. Then again, it's on the prosecution to demonstrate that they actually did.

Keep reading after that line. They're talking about the total number of out-of-circulation copies of a book in all closed US public libraries, not the ones they have the explicit right to use. And earlier they say the emergency library temporarily lifted the 1 to 1 ratio controls, which is openly admitting they did.

> Despite what the HN hivemind wants to think, this was a crystal clear act of piracy

I wasn't aware that the IA had any naval vessels.

It's not piracy if it's a naval vessel. If it's a sanctioned military action, it's "defending national interests".

If lending had exceeded the number of available purchased/physical copies, then it wouldn't be "working around", it would be "violating" copyright law

But wouldn't it be up to the claimant to show this actually happened? So far I have seen no credible evidence for this claim.

Archive.org directly states that it did not happen.

Where? I completely agree with IA's argument that the emergency library was legal, but even they say that it temporarily removed the 1-1 lending ratio on books.

They removed the software limitation, but say that the number of books lent never actually exceeded the number of books their partners had.

Where? The judgment says that the number of books loaned never exceeded the amount out of circulation due to the pandemic, but it does not say it never exceeded the 1-1 ratio.

I have a car which is capable of double the maximum speed limit on any road. Should I be fined for that potential, or should violations depend only my actual speed?

It's more like if you posted on Facebook that you were going to do 120mph in your car if ten people DMed you "do it", and you didn't get ten such replies. Then being pulled over, while still under the speed limit, for speeding on that basis.

> but accidentally this didn't surpass the number of available books

I suspect that the "accidentally" should be heavily qualified. Just because Internet Archive said they were going to let anyone freely borrow books (And it never was "as much as they wanted"; there were borrowing limits on each user, enforced by strong DRM) doesn't make that true in a literal sense. The whole thing was always under their control, and they would've had the stats telling them how much each book was being borrowed.

Reply on news.ycombinator.com