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Comment by Xelynega | Hacker News Reader

They're not in court for the emergency library. They're in court for the 1-1 CDL lending they did.

I'm tired of seeing this "well IA shouldn't have done the emergency library" line. Do you honestly believe the only reason publishers went after IA is the emergency library? I think this would have happened eventually, so pointing to the emergency library does nothing but tell everyone that you were right all along.

They operate in a country where precedent is set in a court of law, how did you expect CDL to "get off the ground" if not challenged in a court of law?

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> Do you honestly believe the only reason publishers went after IA is the emergency library?

I mean, they did so right after IA did it, specifically citing IA doing it as why. Maybe they would have come after it eventually anyway but the Emergency Library specifically marked IA as an organisation that couldn't be trusted; even if they would have come after CDL, IA didn't have to hand them a slam-dunk case.

In all their comms about this IA is desperate to reframe it as nothing to do with Emergency Library, probably because they know how it undermines their case completely.

Edit: EA -> Emergency Library

What is the EA?

Flubbed their emergency lending library acronym in my head into -> EA. Edited to clarify.

E-A Books... It's on the Page!

DLC:

  Table of Contents     |  $10.99  |  Buy Now!
  Authors Note          |  $15.99  |  Buy Now!
  Ability to Bookmark   |  $20.99  |  Buy Now!
  Gold Book Cover Skin  |  $5.99   |  Buy Now!
  Neon Book Cover Skin  |  $3.99   |  Buy Now!
  Camo Book Cover Skin  |  $3.99   |  Buy Now!
  Red Book Cover Skin   |  $3.99   |  Buy Now!

What, no battle pass?!

Thanks for the chuckle!

Too used to dunking on Effective Altruists?

"I'm tired of seeing this "well IA shouldn't have done the emergency library" line."

I appreciate that.

However, as a long-time, regular, sustaining financial benefactor of IA, I was annoyed that they strayed into this set of activities in the first place and then dismayed when they pushed the envelope on it during C19 quarantines.

I, and others, predicted this trouble and even if there is not direct causation why do they have to tickle this dragon in the first place ?

I mean, their mission statement is "universal access to all knowledge". They had to push these boundaries because it's their purpose. The boundaries themselves are dumb and arbitrary (see e.g. https://www.npr.org/2022/11/09/1135639385/libraries-publishe...). Maybe the publishers are deserving of more criticism than the Archive here?

Just because something is in your organization's mission statement does not require you to make imprudent and likely suicidal decisions in pursuit of it. That is not a means to accomplish your cause but rather a means to harm it.

But in our time it seems like there is no such thing as a prudent leader of any organization who understands just how high you can fly without pulling an Icarus and flying into the sun. Even those who know better fear the fanatics enough that they cannot tell them no since those who recommend moving with caution are branded as enemies of the cause and marginalized by the fanatics. And then people wonder why everything seems to end in disaster. The Internet Archive is far from the only institution to make this particular category of error.

I mean if I poke an angry drunk and he beats the tar out of me, the angry drunk certainly deserves criticism but all of my friends will be "WTF why did you go and poke him?"

Publishers acting as angry dunks, checks out.

I mean, in a way poking an angry drunk makes more sense given that the angry drunk might get arrested for battery.

In my estimation, there is zero chance that any positive change that IA might want out of the publishing company will come from the emergency lending program, and there's a non-zero chance that the IA will get shutdown because of it.

Sounds like it's time for a team of burly armed men to subdue the angry drunk by force.

Have the risky stuff done by another legal entity perhaps?

Creating proxy entities to protect oneself is only available to people who hold a lot of capital.

The IA easily could have done it.

Perhaps they're attempting to relate to the world that everyone has to live in, rather than the reality of capital.

In the same boat. Haven't stopped donating as a result, which is a sentiment I've seen repeated elsewhere. It was still upsetting to see the organization I support put so much of why I donate to them at risk for something with so little upside.

> why do they have to tickle this dragon in the first place

I find that doing worthwhile things and tickling the dragon go hand in hand most of the time.

The “emergency library” was a gift on a silver platter for the publishers. It was a reckless and stupid action that made the worst case scenario that the publishers wouldn’t have been taken seriously about a reality.

Obviously the 1-1 lending was an issue to the publishers, but higher risk from a litigation perspective.

And it is strictly speaking not a thing that IA should be doing in the first place. They should have set up a completely different legal entity for this and kept them visibly separated on all fronts, especially online.

They really should have tried to work with the publishers to introduce maybe a reduced rate rental interface if a work wasn't available from their "digital library" as a loaned book. More work, but if they have loan mechanics worked out, then rental is just a payment above that.

Or, if Amazon had/has a rental system in place, just affiliate link through to amazon when unavailable for rent/purchase there... that could fund IA without the minefield at all

They were only sued after they launched the Emergency Library. Also, Koeltl's current ruling applies in particular to lending without the waitlist restriction is legal. CDL in general isn't yet ruled on. IA's actions with the NEL not only prompted the lawsuit in the first place but have almost certainly poisoned the well with regards to the final ruling on CDL.

>They were only sued after they launched the Emergency Library

There is plenty of evidence they were planning this far before the Emergency Library. Like the 2019 press push, https://www.publishersweekly.com/pw/by-topic/industry-news/l...

> Also, Koeltl's current ruling applies in particular to lending without the waitlist restriction is legal. CDL in general isn't yet ruled on

Completely untrue. The entire judgment is about the CDL with the NEL only being mentioned as also being illegal as the CDL already was

Koeltl's current ruling applies in particular to lending without the waitlist restriction is legal. CDL in general isn't yet ruled on.

That’s not the case. The decision is clearly written, and clearly about CDL.

https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...

Ok, that appears correct. Still, the NEL prompted the suits in the first place and, among other things, proved that when the IA says it cares about the legal rights of publishers and authors it is lying. That's tremendously influential. If CDL had more years to become a regular thing that a significant fraction of people use, it would've had a much better chance in court.

> If CDL had more years to become a regular thing that a significant fraction of people use, it would've had a much better chance in court.

Not as implemented by IA. They admit they had zero controls in place for the 'pool' libraries so they likely had books in circulation in both print and digital at the same time. The also had a side for-profit company selling used print books linked from the digital CDL. This case never had a chance.

Yeah, I agree with that. I’m not sure it would really have changed the opinion of the court though.

Personally I’d much rather the money being spent on this was spent on a campaign to change copyright law to allow things like CDL rather than implausibly shoehorning what they want to do into the crevices of the current law. It’s an uphill battle, but one that I think might be more likely to succeed in the very long term.

The lawsuit was filed three months after NEL was launched. Controlled Digital Lending has been around for years and is used by public libraries. Publishers didn’t like it CDL, but they lived with it.

There absolutely is a correlation between NEL and the lawsuit. It’s a small part of the lawsuit, but it’s clear it pushed them to go to war against IA.

> Publishers didn’t like it CDL, but they lived with it.

Publishers spent millions of dollars developing digital lending platforms with fewer features and worse ROI than CDL, and then bullied libraries into adopting them.

This is a reasonable summary of their pre-IA activities:

https://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?arti...

> There absolutely is a correlation between NEL and the lawsuit.

As many comments point out in this thread, legally the trial and the judicial decision had little to do with the NEL. Therefore, in the counterfactual where the NEL had not been part of the dispute, the publishers would have still won their case.

> As many comments point out in this thread, legally the trial and the judicial decision had little to do with the NEL.

That's not in dispute.

> Therefore, in the counterfactual where the NEL had not been part of the dispute, the publishers would have still won their case

That fact that they brought the case does have a lot to do with NEL. Timeline-wise, it's clear NEL triggered the case. The HN crowd breeds a binary "yes/no" mentality, but real world businesses decisions, especially legal ones, take many things into account.

> Do you honestly believe the only reason publishers went after IA is the emergency library?

Yes, it's even mentioned a few times in the judgement. Publishers didn't like the CDL, but were mostly ignoring it. The NEL forced their hand, even if the lawsuit was not about that directly.

> They operate in a country where precedent is set in a court of law, how did you expect CDL to "get off the ground" if not challenged in a court of law?

If the IA really set up the CDL to have a plausible challenge they would not have shot themselves in the foot with complete lack of implementation controls, and clearly setting up a profit motive. Everyone should be furious at the IA for poisoning the CDL well.

I highly recommend reading the judgement, https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...

Frankly, this isn't out of character for the IA. They want to be treated as a global system of record, but then started hostile initiatives like ignoring robots.txt. They've somewhat rectified this now, but their blog post about brazenly doing this is still up. It's good insight to how they think about themselves. They want protection but none of the regulation that will come with it. The proof of their character has been in the pudding the whole time.

I don't mind their desire to slurp up all the things... my bigger/biggest issue is probably the reproduction/distribution by making what they slurp generally available (when they bypass said robots.txt as an example).

For expired works, or works that are no longer published, I'm pretty morally flexible here and lean towards making it available.

> hostile initiatives like ignoring robots.txt

Why would an organization with the goal of being a digital "library" care about robots.txt?

Would you expect public and private libraries to discard arbitrary books of a publisher from their collection because the author put a file called libraries.txt on their website?

If your public library found your journal laying on the floor would you expect them to put it on their shelf, even if you had a message inside the cover that said "not for reproduction"? Would they eschew blame if you'd shared this journal with friends?

The answer is no. You wouldn't. Some people put things on the internet but don't want them slurped up by some mindless machine, and some people post both public content and content which they don't want handled by a machine. It's a fair ask that the IA respect long-trodden patterns of the web.

The is no mindles machine, only computers automating work for humans. If you don't want things on the public web then noone is forcing you to put them there. Once you put things online accessible to anyone then things will get archived and shared. Deal with it.

Ignoring robots.txt is the only way to be a "system of record". Otherwise you don't record what actual humans see.

Siblings of this comment piling on to point out the timing: yes, yes. I don't suppose proximate or triggering causes can coexist alongside ultimate or long-term causes by any chance? Like hey did the last straw break your camel's back or was it all the previous straws? Couldn't possibly be both, so let's argue about it.

The "straw that broke the camels back" analogy is perfect and I should have included.

It's my stance that while yes the NEL was the final straw that prompted the case, that straw would have been something eventually.

What's the point of arguing over what caused the final straw, their mission statement(free access to knowledge) is incompatible with the publishers(limit access to knowledge for profit). This was going to happen eventually, the only bad thing about the IAs decision to create the NEL is how much it's dominating these discussions instead of the actual issues.

> They're not in court for the emergency library.

They are in court for the "emergency library". The emergency library is a key part of the case. It's just inevitable that the lawsuit would also hinge on if 1 - 1 CDL is legally permissible and the case will inevitably have to rule on that.

And yes, timing wise, and from the letters the publishes sent to the IA, they are explicitly about the "emergency library".

The emergency library is definitely not what the case is about. You can read the decision and it’s hardly mentioned.

https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...

It might be the case that it prompted publishers to file earlier, but I have a very hard time believing they’d have just let 1:1 digital-for-physical lending slide for ever if it hadn’t happened.

I read the opinion. The emergency library appears once, only insofar as CDL being found not fair use entails that emergency lending was also not fair use.

It’s an entirely severable part of the decision. The publishers legally had a case against CDL without it.

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