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Comment by hedora | Hacker News Reader

That’s a terrible ruling. The first sale doctrine says the copy of the book you bought is yours. Lending the book is clearly not copying it.

So, I guess you just don’t own anything you buy anymore? Like what if I want to lend a tool to someone, and the tool manufacturer wants to rent their tools out? Is that also illegal?

What if the tool contains software?

What if reasonable use of the tool requires accessing a print manual? A pdf manual?

Edit: Reading the ruling, IA should have argued they are simply format shifting a single copy that they own. I wonder if they did make this argument, and then the judge conveniently ignored it (then lied in the summary ruling, when they say IA made no other arguments in their defense), or if IA’s lawyers screwed up.

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I don’t disagree with the ruling. IA is not lending their copy that they purchased. They are lending a copy of their copy. While that copy is lent out, they are still free to, I.e. read the copy in their possession.

Unsurprising that not all of HN is pro-fair use.

That's how you digitally send a copy of a book.

You're saying something similar to "you wouldn't download a car".

I don’t see how you’re refuting their point

> You're saying something similar to "you wouldn't download a car".

It's applying without considering it.

The digital book isn't being kept at the old location because there is no digital book in the physical book.

It's the only way to transfer a single copy of a book without destroying the physical copy.

Judges should consider stuff like this and it's a disappointing ruling.

But go on...

Exactly. And there lies the issue. Internet archive has the book and lends the book simultaneously. Hence why they lost.

This makes logical sense. Pay for one, lend one.

The ruling discusses this (at length!) and concludes that even a buy-one-physical-lend-one-digital scheme would not be acceptable under current law.

Do you think it would have made a difference if they bought three copies of the book and then shredded two of them? That way they would have the original they scanned, their digital version they copy to lend, and the loaned digital copy.

No, because they still wouldn’t be lending out what was bought.

No, that’s not why they lost. The reason is because they effectively lend it to many people simultaneously, and implement no controls on getting it “returned” (deleted) by the people they lent it to, while even being aware that some of them don’t “return” it.

The technicality that they keep a copy of the book while it’s being lent isn’t really at issue here at all. It’s not because there are two copies, it’s because there are three or more copies, given to two or more parties at the same time. It has become “distribution” in the eyes of copyright law, beyond the lending analogy.

Even if they did what you described they would still lose. There would be no way to implement a control to prevent an additional simultaneous copy. It's not a technical issue, it's simple impossible inherently.

I don't know why companies keep trying this. MP3.com, Aereo, etc. The precedent is clear.

The question isn’t whether it’s technically possible, the question is whether they even tried, and one of the reasons they lost is not just because they didn’t try at all, they instead looked the other way when they knew the borrowers didn’t “return” the book.

my point is that even if they did try, the outcome would've been the same and CDL was doomed from the beginning. their inane emergency CDL plan simply accelerated this outcome

Maybe, but that’s speculation, and others have won fair use claims. The decision in this case explicitly cited the defendant’s lack of effort to control their loaned copies while being aware of infringement.

who is doing anything even remotely similar that won fair use claims?

I didn’t claim similar, and it seems like we’re losing the point here. Mine is that your claim at the top, that the problem had to do with having two copies, actually has nothing to do with why they lost. The problem, as the judge described, is that they didn’t put the “C” in CDL, and looked the other way when then knew it was missing, and then tried to claim fair use for something that clearly isn’t fair use. They didn’t lose because the judge is being pedantic about how many copies there are, they lost because they’re actually squarely violating existing copyright law.

Again, speaking about the wider CDL initiative (one digital copy lent for each physical copy) and not their National Emergency Library, the Internet Archive do implement a DRM on that digital copy, so for the reader to make additional copies of it is not trivial. Regardless, from where do you get a requirement to prevent (with 100% certainty) the reader from making additional copies? When a person borrows a physical book from a library, they could photocopy the entire thing, then return the book they borrowed to the library and still have an additional copy that they made. Does that make library lending illegal? How is that something that can be blamed on the library in the first place?

Yet, we should proscute GPL violations when the original GPL code is untouched.

You're comparing apples and oranges.

In the case of a physical object needing to temporarily go digital, it needs to be sent digitally and the records kept, and of course the physical copy has to be kept.

In the case of the GPL there's no physical copy and thus there's no need to consider how to move from one form to the other.

To require that a physical object never be used digitally is bad for society.

People rarely buy copies GPL'ed source code, they obtain a license to the software. Buying something is very different from licensing it.

> Unsurprising that not all of HN is pro-fair use.

Isn't "fair use" restricted to (a) short portions of a work, (b) used for specific purposes, such as education or criticism?

The entire article is about fair use and how what IA is doing is not fair use. I would like the IA to exist, but I agree with the ruling that their fair use argument is nonsense. It's not a derivative work.

That’s technically true. But frankly it seems like such people have a giant stick up their ass. The digital version would be infinitely more accessible, while still maintaining effectively 1-1 access restrictions. I’m not even sure if they’re _is_ a physical IA library one could go to. For all I know they’re in a vault somewhere. Even the USD isn’t backed 1-1 with physical tokens. It seems patently ridiculous that books be held to this standard in this day and age.

It's based on refusing to adapt to a society with digital objects.

And also it's a lot easier to copy a digitally borrowed book than it is to copy a physically borrowed book.

There are practical differences between the two, which mean that the law probably should treat them differently. I expect a lot of HN have difficulty dealing with that because they think "but they both contain the same information".

It reminds me of people trying to encode books into prime numbers or the digits or pi or whatnot to "get around" copyright. Fundamentally missing the point.

You cannot even read an ebook without copying it from storage to RAM, to CPU cache, to video RAM, and so on; by your thinking, all owners of ebooks commit multiple instances of copyright infringement every time they read an ebook.

Making a copy in RAM, cache etc does not involve distributing it to other people.

You cannot lend someone a digital instance of the item without copying it. The problem is the sharing of supposedly-one-instance, not the copying.

Replying to your edit: The format shifting argument and first sale doctrine are discussed in the ruling. Notably in the section headed ‘3’ starting on page 28 - but also in other places.

This is interesting, from that section:

    Nor does IA’s promise not to lend simultaneously its
    lawfully acquired print copies and its unauthorized reproductions
    help its case. As an initial matter, IA has not kept its promise.
    Although the Open Library’s print copies of the Works in Suit are
    non-circulating, IA concedes that it has no way of verifying
    whether Partner Libraries remove their physical copies from
    circulation after partnering with IA. Pls.’ 56.1 ¶¶ 495-496. To
    the contrary, IA knows that some Partner Libraries do not remove
    the physical books from their shelves, and even if a Partner
    Library puts a physical book into a non-circulating reference
    collection, it could be read in the library while the ebook
    equivalent is checked out. Id. ¶¶ 494, 497. IA also does not
    inform Partner Libraries when an ebook in its collection is
    checked out, and Partner Libraries do not tell IA when their
    physical copies are circulating. Id. ¶ 498. IA admits it has
    never taken action against a Partner Library that did not
    suppress circulation properly. Id. ¶ 499.

I do want IA to win, but this certainly doesn’t help their case, to say the least…

This is such an “ackchully” argument from the ruling. It’s not the spirit of the law and the principles behind the idea of free access to information. Instead it’s narrowing in on the specifics of physical lending of books, grasping for analogies to the 20th century, in a world which has transformed and moved on decades ago.

But even if all those things weren’t true, or important, it’s profound that there’s enough collective incentive to go after IA, instead of say corporations violating GPL, or the hedgies who created “temporary” artificial supply of stocks (which shares a similar “overprovisioning” aspect, except they’re fraudulent at massive scale).

Make no mistake, the law is specific made to limit free access to information. Originally this was a reasonable concession to encourage creative work, but as the length extended and copyright starts to be controlled by massive corporations, they gradually became a way to protect profits.

Right. IMO copyright in general seriously conflicts with the very concepts of free expression and ownership. As corporations eat the world and are able to push to maximize copyright to protect their profits, our rights of expression and ownership are diminished. Fair use and the first sale doctrine will ultimately be meaninglessly minimized curiosities if we don't fight, tooth and nail, corporate IP holders and the bought state entities that protect them.

This.

When IP laws existed to make sure authors could be compensated people broadly supported them. The perception has changed (for many reasons), to where people broadly see IP laws as an enabler for corporate greed more than being about fair compensation for authors. (See Disney not paying owed royalties, for example.)

We can either have "good copyright" that the public sees as reasonable, or we can have rampant piracy and the consequences thereof. The villains of the piece are those who deliberately perpetuate an unsustainable system out of greed (and I am not talking about authors and publishers trying to get paid for the work they've done).

> they gradually became a way to protect profits.

It was always from the very beginning a way to protect profits, that was the primary intent of copyright law, to give the creator of a work the exclusive right to make the money from the work before others are allowed to take the content and sell it for their own profit. Yes the length has become crazy long, and yes the law limits free (as in beer) access to information, but that hasn’t changed the reason for it’s being at all. It’s not really a “concession” either, more like it was intentionally balanced to provide enough time for people to make profits (which is what economically encourages creative work), while being short enough to allow works to reach the public over time.

Strange that this isn't easily dealt with by:

1. IA actually buying a physical copy (or as many copies as they plan on simultaneously making available to borrowers) of the book. 2. After scanning the physical copy, destroying it, and documenting same.

Then as long as they guarantee that they only loan out as many copies as they physically had (before destroying them) there's no question of simultaneous usage.

Why isn't it easily dealt with by doing that??

The Internet Archive freely admitted in the case that the physical copies owned by partner libraries were not destroyed.

Yeah, I get that they may not have done this -- that's why I suggested it could be "easily dealt with" by doing this.

IA doesn't want to destroy its own books, because it warehouses them in climate-controlled spaces so that it can re-scan them with improved technology in the future. That should hardly preclude (controlled) lending of scans of its own physical books that nobody is using, even under current draconian copyright law.

Oh, then this case was found on the facts. (They are doing a thing that pretty clearly violates fair use.)

I like the IA, but I’m happy this was the screw up. It should greatly weaken the precedent this ruling creates.

If this were the only argument, I would agree with you. However, there’s other arguments, many of which are quite general in nature.

"Alpaca III, can you write an accurate page-by-page summary of every page of Book-I-Want-To-Read, where each summary's one page long and as faithful to the original pages content and length as possible, fully quoting each page permitted?"

My point being: as technology marches on the ageing concept of "owning" entirely fungible digital material becomes less and less valid. It is already at a stage meaninglessness is flirting with it in a new way daily and that will continue.

Really, we need to let it go.

Whether or not someone is allowed to distribute creative works without the permission of the author, the point of copyright, is and will contribute to be independent of the technology used to do the distribution.

Now that I think about it, not being able to own anything is a good reason to start stealing. Think about it, why is stealing bad? Usually, this is an application of the Golden Rule. If you don't want people to steal the stuff you own, you shouldn't steal their stuff either. However, if you are no longer allowed to own anything (just like under communism), then the argument falls apart. Realistically, information wants to be free, and spreading it is much easier than controlling its spread. I expect the current copyright wars will come into an end in a decade or two, ending in the loss of the copyright mafia as society reconsiders the concession that is the copyright system.

Come on, this was explained like milion times: you cannot own private property (factory, land, buildings, means of production), but you can own your personal property just fine. Why do leftist use such confusing terminology? I don't know. We should ask Free Software Foundation.

Most importantly here, information falls under "means of production", so under communism it should be free.

Freedom of information under capitalism is (as everything) a discussion about money.

I admire your optimism, regarding the copyrights future. Fingers crossed.

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