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It's not the Internet Archive's job to be the first one to try to resolve fair use questions like this, and attempting to do so put the organization's orginal core mission at risk.

They should have let someone else take the risk, and continued archiving the internet. That is all that most of their supporters expected of them, for good reason. Their attempt to pivot toward being a generic, universal library was bad scope creep and should have been stopped when it started.

Seems to me like the Internet Archive can determine for itself what it's job is, and they've determined that this is in fact part of their core mission.

Your perception that their purpose is solely to archive the Internet is at odds with their actual demonstrated activities for many years (the home page says: "Internet Archive is a non-profit library of millions of free books, movies, software, music, websites, and more"), as well as their public mission statement: "Our mission is to provide Universal Access to All Knowledge."

I've talked to the founder of the IA who told me he doesn't believe the lawsuit puts the IA at risk of having to shut down.

> Seems to me like the Internet Archive can determine for itself what it's job is

And commenters on HN can point out that they've made a huge, and obvious, mistake that risks their entire mission.

They can, but that doesn't mean they are right. Controlled Digital Lending is not an "obvious" mistake, and contrary to what people on HN keep saying, the emergency library program is not what this case is about. It also does it seem to be the situation that their entire mission is at risk.

I think people are getting confused by the name - it's an archive _on_ the Internet, not just an archive _of_ the Internet.

Ah, I see, there seems to be a misunderstanding of what the Archive is about. They have been doing a lot more than just "archiving the internet" for a long time. Their blog posts from 2013 (https://blog.archive.org/2013/) for example include writeups about magazines they had digitized, tv news they had recorded, and music. Montana State Library was uploading to the Archive in 2010 (https://blog.archive.org/2010/12/30/how-montana-state-librar...) in addition to the Archive's own digitization efforts (https://blog.archive.org/2010/12/10/internet-archive-needs-y...). Book digitization goes back to at least 2005 (https://blog.archive.org/2005/11/08/bookscanning-launch-and-...).

According to Wikipedia, you'd have to go back to 1999 to find an Internet Archive that was solely the Wayback Machine.

I'd bet that most people who care about this issue are primarily worried about losing the Wayback Machine. If that goes away, a lot of internet history will be lost forever. All those copyrighted works that IA was lending out won't disappear in the same fashion -- they will still be available from other sources.

IMO the Wayback Machine has always been the primary product, and most valuable part, of the Internet Archive. If IA wanted to do other things they should have done them via a separate legal entity to protect the Wayback Machine.

You'd be betting wrong. Even a casual skim of the Archive's blog will show that the Wayback Machine isn't their primary focus, and hasn't been for ~20 years. It may be their most important aspect to you, but the Archive is comprised of a large network of people working together to make all kinds of information available on the internet that wouldn't otherwise be accessible. To those people, those repositories are far, far more valuable than the Wayback Machine (and I promise they care a lot about this issue -- possibly more than HN does, given the timbre this topic has received here).

There is nowhere else that you can browse for example a Byte Magazine from 1984 (https://archive.org/details/byte-magazine-1984-12/). This is what the Archive is about, from their perspective -- along with music, video (including broadcast video), and a whole lot of other projects: https://archive.org/projects/

What I'm saying is that the things the people who work at Internet Archive care about may not be the same as what end users care about. I think the end users care mainly about the Wayback Machine.

The Wayback Machine accounts for about half of archive.org's pageviews.

You think most other people mainly care about the thing you mainly care about. Happens all the time.

it looks like the wayback machine accounts for more than half of archive.org's page views [1], making that poster's hypothesis correct

[1] https://analytics1.archive.org/stats/pageviews.php

They're an archive on the internet, not an archive of the internet. I disagree with your gradualist approach, because while you complain about scope creep private capital subjects itself to no such restraints. The IA is an institution, not a tool.

> Whether it's legally permissible to copy a printed material and distribute that copy as though it were the printed material was/is unresolved.

That's what IA wants to believe. But it's just not the case that legal points aren't "resolved" or "tested" unless exactly the same situation shows up in court and gets ruled on. The law works in large part by analogy. Strong enough analogies can be predicted.

Here's from the trial court's summary judgment opinion against IA:

> Even full enforcement of a one-to-one owned-to-loaned ratio, however, would not excuse IA's reproduction of the Works in Suit.

Then there's the citation so many saw coming to a case called ReDigi, about a system for reselling authorized digital music downloads by ensuring there was only ever one digital copy. They lost, too.

There's another case out there, Aereo, about a company offering a warehouse full of TV tuners subscribers could stream from on a one-to-one basis. For technical legal reasons, that involved different aspects of the copyright law. But the case didn't go well for Aereo, either. Or for any of its competitors pursuing essentially the same business model.

I listened in on the opening arguments. Judge Koeltl asked repeatedly for examples of prior cases analogous to the current one. ReDigi came up then, as did HathiTrust, but neither are exactly analogous to Controlled Digital Lending. The most similar case might be Author's Guild v. Google Inc., which was well covered by The Atlantic (https://www.theatlantic.com/technology/archive/2017/04/the-t...), but even that case presents some differences in terms of commercialization. Hachette et. al. are arguing that the Internet Archive is a commercial entity because lending books increases the Archive's popularity online (that is a nearly verbatim quote from the publishers' arguments).

There is a whitepaper on Controlled Digital Lending that should be required reading for anyone wading in to this discussion: https://controlleddigitallending.org/whitepaper/

> exactly analogous

This isn't a combo I think I've seen or read from other lawyers. Does it mean "identical"? Again, that's not what's required to make a point "settled"...or an outcome predictable.

The trial court opinion distinguishes Authors Guild, Google Books, Sony, and TV Eyes very explicitly in its opinion, starting on page 19. It's hindsight now, so worth fewer points, but I'm not the only one who thought distinctions based on "not giving out full copies" and "providing equipment" were coming.

The trial court did not say the Internet Archive isn't a nonprofit, a charity, or tax-exempt organization. The question under fair use analysis isn't whether the infringer is commercial or not, but whether the use is. It also comes up under other factors, such as effect on market.

The first and only mandatory piece of reading for discussing this case right now is the trial court opinion. Summary judgment was only possible procedurally because the two sides of the lawsuit agreed on the facts, only differing on how law applies to them.

Judgements are no longer binding as soon as the market has changed (radically), no?

Also, it seems like IA's purpose is different.

> Judgements are no longer binding as soon as the market has changed (radically), no?

No. That is not how law works in the United States.

If you'd like to learn more, try "Common Law" and "Stare Decisis" on Wikipedia.

"""or premised upon, certain factual scenarios, and not applied to the subsequent case because of the absence or material difference in the latter's facts"""..?

> Whether it's legally permissible to copy a printed material and distribute that copy as though it were the printed material was/is unresolved.

A lot of IA supporters wish they would have gone about discovering this in a way that protected the actual internet archive. Maybe I don't understand the actual risks to the IA, but it feels like a reckless move.

This could be tricky. As I understand it (not a lawyer, etc.), whether an organization believes it is operating within the confines of the law can impact the outcome of a legal dispute. The important distinction here is that these are competing interpretations of Fair Use; there's no case law (as far as I'm aware) that settles this one way or the other.

So, for the Archive to go, "well, let's set up a shell corporation and do this thing through some structure that might shield us from harm" would require that they believed they were doing something illegal. See for example para. 3 in https://www.newyorker.com/books/page-turner/the-national-eme...

I don't think anyone is suggesting the archive create a shell corporation. If archive leadership desperately wanted to get sued by publishers, they could have resigned from working at the archive and formed a different organization.

it was going to be tested, and IA are exactly the right organization to test it

CDL being legalized is dependent on the concept that it respects copyright and is only a digital version of rights and practices that already exist. The NEL proved that as far as the IA is concerned, CDL is nothing of the sort and is in actuality just a method of keeping rightsholders from suing them and what they'd really rather be doing is copying every work in existence and giving it away to everybody. They proved they don't want to be a library. They have destroyed their credibility. Other than the operator of Z-Library there is no worse entity to be litigating this.

Not wanting to be a library isn't illegal. The actions of IA don't have any bearing on the legality of CDL. You've made it clear that you don't like what they did with NEL and that's reasonable enough, I think extrapolation from there is unwarranted.

They shouldn't have any bearing. In the real world lawyers and judges are flawed human beings whose decisions are influenced by emotion and impression. If being hungry can drop a judge's parole granting rate from 65% to zero, an organization showing they'd really rather be totally flouting the law can certainly influence the outcome of a case.

then again maybe that wasn't what was happening with those poor undernourished judges - https://news.ycombinator.com/item?id=14701328

> Now that it's being tested, the right thing to do is to figure out if CDL is something we as a society want to enable for our libraries or not.

that's a nice idea, but it's hard to see how we as a society have a say.