Comment by kemitchell | Hacker News Reader

Comment by kemitchell | Hacker News Reader

Parent Full thread

> 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"""..?

Reply on news.ycombinator.com