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Comment by hn_throwaway_99 | Hacker News Reader

While I strongly disagree with the length of copyright protection, after reading this and reading more about the case, from a purely legal perspective, I just don't see how IA has any defense. They basically just seem to be saying "these are old records, so we should be able to copy them. Also, our work is mainly for academic researchers." My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet.

Would appreciate it if folks would abstain from responding with how the record companies are greedy bastards, or how the IA is doing great work, or how copyright protection has strayed from its original goals of encouraging innovative new works to become a victim of rent-seeking behavior, or that the law itself is unjust here. All of that I wholeheartedly agree with. I'm not a lawyer, and I'm just interested in trying to understand if they have any legal defense that isn't going to get laughed out of court.

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> My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet.

The fourth part of the fair use test rests on whether the use of the work impacts the commercial market for the work.

Given these works are often:

- Not offered in their original form

- Would likely have little residual commercial value if so offered

- And, the article states, are only accessed by one researcher per month

Indicates that the research, educational, and cultural value from this use likely far outweighs the impact to the commercial use of these works.

Just wanted to say I very much appreciate your thoughtful response. I wasn't aware of the details on the 4 tests of fair use, and your comment led me to some helpful searches. For anyone else who is interested: https://nwtc.libguides.com/c.php?g=43772&p=7188025

Couldn’t one argue that while there’s _minimal_ commercial viability of this work now, it’s still not zero? And that by making these available they could make it zero?

Zero and minimal are the same thing when it costs non-minimal resources to bring something to market and reach potential customers through advertising etc. When it costs you $15 to make a $10 sale you are not losing money to abandon the market.

The test doesn't require there to be no impact on the commercial viability of the work; rather, benefits exceeding the loss in commercial value of the work is one (important) factor arguing in favor of fair use.

If there is value to them, why are the copyright owners not offering a way to pay them?

Be interesting to know if Sony et al are selling these songs (as MP3s, rather than 78s, I'd assume) and if so how much they make. That would presumably be used to judge the actual commercial value. And this would only apply to the songs which are still in copyright - sadly not zero given they're all by definition at least 70 years old.

Note that the Supremes recently ruled that commercial use isn't necessarily a gate to fair use. I'm not thinking about the Warhol case. Maybe it was the Oracle/Java case?

Also, there are some odd fair use things, like the google books case, which may tilt the court in the archive's favor.

Here's a nice site that talks about fair use. https://fairuse.stanford.edu/overview/fair-use/cases/

I am completely on the IA's side here, and I hope they win the case. Down with copyright.

However, "on average, each recording in the collection is only accessed by one researcher per month" seems to me like a dishonest way to present the data. Surely surely there are one or a few recordings in the project that are vastly more popular than others. That's always how it goes. So "on average" completely obscures how popular the most popular ones might be.

I disagree. A median value might be really misleading (you could have very high usage for 49% of the collection, and nothing for the rest). But assuming average means "mean..."

You might have a few hotspots, but there's a very tight upper bound on how many downloads of each item. Further, it argues that the overall collection has a very high research and preservation value compared to the total number of downloads.

I don't agree. The size of the set is of paramount importance to that point. They can always bring the mean down by just adding more recordings to the set, to further obscure how popular the most popular recordings are. In a set of 10 billion, of course people aren't listening to most of them.

Quite clearly what the plaintiffs are afraid of is that there are a few very popular works in there that they could be making real money from. There's no way to know this from the mean alone.

They got 400 000 records in the collection, I don't think they're being dishonest here

That is far from the truth.

The companies have very successful legal departments. They go after the next lowest hanging fruit. They are just working, it's their job description to do this. This is why they will never stop, it never gets too absurd or overly unreasonable.

edit: Deleted fake example

This appears to be a hoax.

https://www.snopes.com/fact-check/metallica/

haha, that I was unable to tell the difference says a lot.

https://www.smbc-comics.com/comic/aaaah

Even if all the traffic were from 100 pieces, that's a few thousand downloads per month. Let's talk about those specific pieces, then, instead of trying to obliterate an archive.

Shouldn't the plaintiffs then single out that particular popular record, and not try to take down the entire catalogue? It goes both ways - if you ask for all you get data about all and that data shows one access/month.

The plaintiff doesn't want to open a loophole. Suppose that one of these records gets used in a major film soundtrack, and now everybody is downloading it. They will have a harder time asserting their ownership if they don't defend it now.

Their approach stands on applying the law as written: "This is mine and you can't have it, even if I don't really much care about it."

As I understand it: in USA law copyright, unlike a trademark, is not invalidated by failure to defend it. You are free to ignore unauthorised copying of, or usage, of your work until such time as you find it sufficiently objectionable.

"Statement from Brewster Kahle, digital librarian of the Internet Archive: “When people want to listen to music they go to Spotify. When people want to study sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.”"

From the article

I believe they are arguing that the intent behind the digitization is fair use, as you say, but what I find interesting is they seem to argue that there is no loss of profit from their work, which is a valid point to raise - if this is all hypothetical exceptions can and should be made to the law.

Even if they don't have a case, say the copyright law is very tight and clear and there's no way this can skirt around it - they still can bring it to court, fight it, and lose until they get it overturned by the Supreme Court and they get a special status or the copyright law is amended. This is standard - it's how the 19th amendement was passed I believe, I'll look for a link.

Edit: to clarify, there is no damage to the copyright holders because the medium holding their work is impossible to be used to listen to their work by anyone but experts, like the IA

Edit 1: Here's what I was remembering - it's not an amendment, but it's neat!

https://lithub.com/how-ruth-bader-ginsburg-and-gloria-steine...

I think there's both a legal defence (its for legitimate research) and a law-change-advocacy (we think copyright in these works is silly) component to what they're doing.

I don't think you are wrong about the risks to them in fighting the case with what looks to be such abundently clear IPR over the mechanical recording. But, I do think the wider fight about what "should" be the IPR here, is worth fighting.

That advocacy lies in the part of your comment which heads off the "RIAA is bad" fu.

Shellac 78s are old but equipment to play them is commercially available and they can be played on turntables that support 78 rpm with the right cartridge.

I misplaced the 78 belt for my Pro-ject turntable during a move a few years ago and in the mean time found a copy of New World Symphony that I’ve been wanting to listen to.

https://en.m.wikipedia.org/wiki/Shellac

Just learned shellac is resin produced by south asian bugs - used to do not only record but food glaze and varnishes.

Shellac can be made out of different things, and has been a common polish for wooden instruments for example, before we got chemical protections like nitrocellulose lacquer. For handmade instruments [shellac and french polishing](https://www.lmii.com/blog/2017/10/07/finishing-options-for-m...) is still often preferred due to being environment and human friendly (chemical lacks are often non-healthy for the human who works with them), relatively inexpensive (cook your oyster shell :)), and for being do-it-yourself solution which many luthiers prefer. Some people claims a guitar polished with shellac sounds better than one with a cellulose lack, but I am not sure if I agree that is a deciding factor for the sound, probably more of a psychological factor.

I have a collection of several dozen 78 rpm shellac records that I inherited from my father, who inherited them from his father. I have a turntable but it won't play 78s. Been wanting to check with my local university to see if they could digitize them and maybe take the originals as a donation.

I have also thought about looking for an old Victrola at an antique market and keeping them to play as a novelty, but it would really be just that.

If a local university doesn't take them, the IA will - they accept donations of physical materials and will digitize and index them: https://help.archive.org/help/how-do-i-make-a-physical-donat...

It's not a question of if it's physically possible. It's a question of what the customer is going to do. You can't play a 78 on your iPhone. You can play Spotify on your iPhone. So the customer is going to use Spotify.

Do you know what are current sales figures for 78s? If I release on 78 rpm, how much can I expect to sell?

probably not much, but here wouldn't the case be if you streamed content that was originally from RPM how many views would I get?

They are indeed making copies in the strictest sense, but the real problem is if the copyright holders don't enforce their copyrights in the strictest sense they can forfeit their copyright. For example, if I let the public use an image copyrighted by me long enough without strict guidelines and I try to take someone to court, the court can say yes well you let the horse out of the barn and now you are trying to put it back in after it's everywhere. The solution is always licensing, and licenses can be free. So IA and the copyright holders instead of playing hard lawyer ball can cooperate; the copyright holder can grant them a free license for works that would otherwise not be getting exposure of make them money which they can revoke at any time should they decide to try and make money off of a work again. They can also provide strict usage guidelines in that license for IA as well as IA's users so it's clear this is meant for a narrow use and using it outside those guidelines can result in legal/financial penalties. To me this is a win-win because it could open the door for companies like Spotify to subsequently license works that gain popularity from exposure for a fee.

Just a side note/addendum, I worked with entertainment lawyers A LOT in the early days of the web on copyrighted images and while they start from a rigorous position what one simply has to do is find out what the guidelines are that alleviate any issues. For example, with an image or a video clip it often only requires explicit attribution (so every image at the bottom must carry the legal/copyright line, and likewise with a video clip) to satisfy the lawyers. They almost never tell you that, though. That's a tip for YouTubers who get copystruck for movie clips. Run the copyright/legal line at the bottom of every clip while they are on screen and you are covered 99% of the time. That's why when you watch the news and they show a clip you see the line at the bottom of the clip. They know what the legal requirements are.

Your two responses in this thread are awful: awfully confident while awfully misinformed. Even calling them misleading would be an understatement. You are spreading outright bad information here. Please stop.

My understanding is that trademarks require enforcement (i.e. why we can 'xerox' a page) but copyright is more vague and does not require immediate action?

All sound like great reasons to not license and flout the law.

As far as I can tell, in the United States you cannot lose your copyright, even if you don't defend it at all.

A cursory glance suggests that BYU asserts the opposite (see Myth #11) https://copyright.byu.edu/copyright-myths.

Suppose a copyright holder knows people are infringing their copyright and chooses to turn a blind eye to it - and then after many years of doing this, suddenly decides to assert its rights and sue the infringers (maybe the copyright has been acquired by a new owner who is desperate to make money from it, somehow, anyhow.) Is it possible that the defendants might raise estoppel as a defence? Or argue that the copyright holders failure to act on the infringement when it was widespread public knowledge constituted an implicit license?

I’m not saying those defences would actually work. Indeed, my non-lawyer gut-feel is they probably wouldn’t. But now I’m wondering if anyone has ever tried those arguments? And if nobody has ever tried them, I think there remains a chance they might succeed, even if that chance is small. And if they ever did succeed, that would effectively amount to “defend it or lose it”, although the owner technically would not have lost the copyright, just (some of) their ability to sue infringers.

> suggests that BYU asserts the opposite

The page you've linked says: "Copyright protection is effectively never lost, unless explicitly given away or the copyright has expired. However, if you do not actively defend your copyright, there may be broader unauthorized uses than you would like."

How on earth did you read that and come to the conclusion that BYU 'asserts (sic) the opposite' ?

Trademarks require enforcement (as others have noted), copyrights do not.

There is the doctrine of laches which might be applied in general to an excessive delay in asserting an equitable right, but there is no failure-of-defence loss of copyright under US or generally Berne Convention statutes globally. I've most frequently seen laches raised in the context of patent enforcement. <https://www.law.cornell.edu/wex/laches>

This is rampantly false and misleading information.

there is another issue here also which applies to video not music, but would probably end up coming up in the future.

If people want to watch a video (assuming they don't pirate) they use the video service that provides them that video.

If people want to use a clip from that video in some other production (fair use scenario applies here) they can't copy it from the video service because of DRM.

Copyright protections are important. Just how many of those artists would have created their works if they knew that decades after their death an average of one researcher of a month might access a digital copy of the work for free? It completely ruins the incentive structure! Might as well become a fry cook instead.

I don't know, if you tell me that 120 years from now, one researcher a month will be accessing it, I'll go write a song right now!

But the hedge fund that owns the record company that will own the rights to your song won’t earn any money! How can you live with that future moral tragedy after you die?

Thankfully we have record companies acting in good faith to recoup that gulp 400 million in potential lost revenue on behalf of those long-dead artists and their deserving kin.

Copyright is meant to serve the public. This is done by incentivizing artists and corporations but the goal is to promote creation so that the populace ultimately benefits. If this isn't assumed, then you assume government should not work for the people.

By doing something that's technically illegal but antithetical to the spirit of public good, IA is highlighting how perverted copyright law has become.

You want people to refrain from criticizing record companies greed but there's a clear argument that highlights this as the main motivation. Artists who own their own copyrighted works sometimes buy up old media of themselves and refuse to license it for fear of impacting the image they've created for themselves (or just because they're embarrassed). Very much different from this scenario, record companies are preventing use in a way that looks like extortion.

In my view, it's not that there isn't an argument to made that this is an illegal act, it's that there's a deeper question of whether it should be. Sometimes new laws are changed by breaking them.

This is a little meta but: it's great how you predicted a possible unproductive line of discussion that might result from your question and headed it off with a clarification. Props for communications skills.

I'm also a little sad that this disclaimer is even needed. I think it says something about how the character of HN has changed in the last ten years--there's no longer an assumption that the people on the other end of the wire assume curiosity and good will. There's a lot more heat here these days.

Maybe because the average understanding of how our society is run, with things like morals, fairness and hope for the future, and the legal understanding of how our society is run has diverged.

And maybe people are getting sick and tired (and banned and flagged) of "good natured discourse" being entirely windowed by the latter.

It's arguably always been like that. The Internet's audience (on average) has simply grown up to an age where they start to care about that more.

>maybe people are getting sick and tired (and banned and flagged) of "good natured discourse" being entirely windowed by the latter.

I know it feels cathartic, but "record company bad" is neither discourse, nor particularly good natured. It's more reflective of how forums have shifted by twitter's popularity into being "microblogs". You don't really talk "to" people on Twitter, you throw out your tweet among a sea of tweets.

A shame, because I hate twitter precisely because of that.

dang does a pretty good job of not banning people who are avoiding breaking the HN guidelines, and most of flagged content is political stuff not appropriate for HN.

HN is not an activism platform.

Thanks for that. I tried, yet still there are comment responses that literally do the exact thing I think is so annoying: complain sarcastically that copyright is stupid because it obviously isn't incentivizing the original artists here. No shit, we know.

But whatever, those comments get pushed to the bottom, and I thought the top responses were really helpful (I didn't previously know about the details of the fair use tests).

For some additional context, the copyright laws in the US make a very specific exception for archival[1].

>(a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

>(2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Note that "computer program" here is in reference to any and all forms of digital data thereof. The digital copies made from the records concerned are "computer programs".

Sony, et al. allege that Internet Archive's public redistribution of their digital copies of the records do not fall under the archival exception.

If all Internet Archive does really is just archiving, none of the rightsholders would have standing to sue or otherwise get in their way.

[1]: https://www.law.cornell.edu/uscode/text/17/117

Obligatory IANAL.

> Sony, et al. allege that Internet Archive's public redistribution of their digital copies of the records do not fall under the archival exception.

Seems pretty obvious to me that, just with respect to the archival exception, that Sony et al is correct here. The issue is not with IA making backup copies of these works - the issue is with making copies and making them available for free over the Internet that is the issue at hand.

What should the M.O. of an archive be, then? Paid access? That would be an even worse offense! Zero access except for the person who created the archive? That makes no sense either. The archivist needs to vet potential accessors for certain motives? Only offer access to small samples?

>Paid access?

No, in that case you need permissions or licensing from the rightsholders to resell or otherwise profit en masse from their work.

>Zero access except for the person who created the archive?

This is, fundamentally, what archiving something means. It is legal for someone to rip a music CD that they own for archival purposes, but it is illegal to share the resulting archives.

>The archivist needs to vet potential accessors for certain motives?

One facet of fair use is whether the use is for academical, educational, or other non-profit purposes. So yes, the archivist needs to vet potential accessors for certain motives.

>Only offer access to small samples?

Another facet of fair use is that only the minimum portion required from a given work is used for a given purpose under fair use. For example, quoting certain passages and only those passages in a book to discuss them in a review or critique, etc.

> This is, fundamentally, what archiving something means.

I completely disagree, you can't separate archiving from the accessibility of the content, the whole point of why you are archiving something is to make sure it's not lost and future generations can still access it in the first place!

I highly suggest making liberal use of the flag feature.

Boring, flamey, predictable activist/political content has absolutely no place on HN.

Your prediction was on point, but we shouldn't have to head off these extremely repetitive and unproductive tangents every time - they should be flagged and downvoted into the ground so that they stop coming up in the first place.

I want 2010 HN back.

I think I've spent too much time on reddit, because in comparison all the comments here seem quite reasoned, calm, and insightful. And then there's YouTube, and comments on news sites... I guess it's all relative.

>I think it says something about how the character of HN has changed in the last ten years--there's no longer an assumption that the people on the other end of the wire assume curiosity and good will.

The internet as a whole has diverged from assuming good faith, between polarizing politics, the rapid increase of bots, and general shift of popular sentiment over the decade. And there's also a lot more people online, so it's much harder to moderate for that even if you wanted to.

It's an inevitability since this site's moderation hasn't scaled with its user base.

Right, there's a scale problem, among other things.

I want the invite-only system of Lobsters, with the actually good moderation of HN. I think that would help with some of the issues, here and on other platforms.

I don't know. I've been here since 2016 and discussion is pretty great. No one bears ill will towards GP, people are only guilty of agreeing with him too aggressively.

I really hate copyright and have engaged in heated discussions about the matter here before but still refrained from replying to GP because I realized I too would like to know what legal arguments could be used to defend Internet Archive.

It's difficult to be curious about copyright. For many of us that matter is already settled and only strong opinions remain. This post still managed to make me curious though. It's great.

Federal statute says the following:

> In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

> 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

> 2. the nature of the copyrighted work;

> 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

> 4. the effect of the use upon the potential market for or value of the copyrighted work.

So, everything in the article is relevant to 1, 2, and 4. In fact, besides element 3, to me this usage strongly matches each of these criterion. Fair use is interpretable, though, so the outcome of the case if it goes to trial will be dependent on the judge.

Just to present a counterpoint, I can see a range of fair use exceptions that IA could argue, these largely align with the educational exceptions present in US copyright law.

What's working in their favour:

1. The intended use of the copyrighted work. The recordings are not pristine, culturally important, and have limited commercial consumption potential in their available form.

2. Nature of the copyrighted work, i.e. Is the use to further creative expression(yes) or consumption(no). IA's own access statistics and duration of the project can strengthen this point.

3. Potential market/value of the copyrighted work: This will play significantly in their favour as the records are dated, rarely sold and not pristine/remastered.

What isn't working in their favour:

1. Unvetted self-serve distribution over the Internet: However this case is an excellent opportunity to extend the face-to-face education exception to self-serve online educational resources. This would be a reasonable modernisation of the clause, and would still provide a clear boundary between the education and commercial use purposes.

I guess the main problem with the usual "they're a library" defense that IA usually gets to trot out is that their regular books usually are accessible under a lending system - that's to say, they manually digitize the books and don't let people read more copies than they have on file[0].

This system as I understand it doesn't apply to any of their non-book collections (not to mention it only applies to files that IA has uploaded themselves, the archive also accepts user submissions).

Fair Use is very unlikely to apply here I think. The fair use test looks in part at the question of how much of the copyrighted work is distributed (ie. A radio program promoting a song with a short jingle has a much more solid defense than others.) and "all of it" isn't a good defense. They could've put these recordings under their usual lending system, but they didn't and that probably makes them liable.[1]

For reference, I am not a lawyer, so if you think this is legal advice, go talk to an actual lawyer.

[0]: The ebook lawsuit they recently lost was because they disabled all lending restrictions for the pandemic, triggering the lawsuit. The lawsuit itself is ballooned with other crap because the usual nonsense from publishers is a thing, but the grounds for the lawsuit were unfortunately very solid.

[1]: That said, this lawsuit was probably triggered because the judge in the ebook case partially stripped IA of its library protections. The record companies probably are trying to arrange a similar removal of protections from IA, hence why this specific collection was targeted.

Their ebook move was good-hearted and tactically foolish. I wonder if library protections can be re-earned.

That is what struck me too after reading the article.

With the digital (and maybe Bigdata/ML) age, copyright protections need some revisions & broadened scope of "fair use". But digitizing and making media items available over internet face the arguments that piracy sites get accused of. IA is a respectable agency, and these media is from 50s & 60s. But the optics of it from legality remains the same unfortunately. I wouldn't also believe these having no commercial value. Among the collection, I found popular artists such as Louis Armstrong - who I still listen to over Spotify/Apple.

IA would probably cut some losses if they disable all streaming or only provide 30sec clips (as preview), while keeping the music archive more restricted. Not that I like this proposition, but if we are serious about preserving the legacy of 78rpm, some more consideration could be useful. Copyright laws in their current form is (unfortunately) unforgiving to IAs efforts in this context.

> My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet.

I worry that they're going to end up, as with Lessig, ending up in a case that creates terrible fucking case law that screws up copyright law even more than it already is. Like, if they win, it will be by making it impossible to enforce copyright for anyone who can't show substantial profit, zeroing copyright for anyone who isn't Oracle or Sony. Or they'll do such a shit job of defining what an archive or public interest or lending library looks like that they'll destroy the legal protections that libraries and archivists currently enjoy.

Legal considerations are not the only considerations. What the court says is not accepted by all as the final word.

And why should we need to confine our replies to a narrow and arbitrary framework of existing case law, when there is so much more at play?

The ancestor poster isn't saying you can't discuss those other things at all-- but they are offtopic for their interesting sub-question.

Because so many of those responses are just wholly uninteresting - they're just "basic" as the kids say (or used to say? I can't keep up anymore).

"Rich companies abuse copyright" - no shit.

"Copyright is unreasonably long" - no shit.

"It's absurd to think copyright needs to be that long to incentivize creation" - no shit.

Putting a sarcastic or "witty" spin on the above types of arguments still gets the same "no shit" response from me.

I have not read a single response of that form that I find interesting in the slightest, or adds new information, or makes an insightful point, and I wholeheartedly agree with the sentiment!

>And why should we need to confine our replies to a narrow and arbitrary framework of existing case law

Because the user wants responses from that narrow and arbituary framework. You are free to make or respond to another thread to look in another lens.

> Would appreciate it if folks would abstain from responding with how the record companies are greedy bastards,

How else would you interpret their behavior though? They are hundreds of thousands of dead artists on this archive and they specifically attack the ones which made money.

The conclusion can only be that those record companies are just after the money, I don't see any other possible one from this behavior.

>How else would you interpret their behavior though

their goal isn't the analyze the company's intents. It's to understand what legal arguments IA has.The cards are dealt and the goal here isn't to change copyright law at large. At least, not at this stage.

Considering the low volume of downloads and that it is primarily for academic research, I think there’s a strong argument for fair use. I’ve seen so many great recordings completely disappear because some record company decided they might like to re-release something between now and the end of time (they usually don’t).

IANAL but there’s probably some fair use defense given that some may find value in studying the material and it probably doesn’t otherwise have market value.

30 years years will be sufficient

I refuse to donate to them because I see their disregard for copyright as a liability.

Non-profits essentially have to be the ones to push the limits of laws like this, because it's not profitable, so for-profit entities aren't going to do it. But someone has to do it or you can never get a precedent saying that something good is actually allowed.

The problem is the RIAA knows this, because they have expensive lawyers, and they try to avoid proceeding with a suit unless they think their victim has made a mistake. So you have to get close enough to the line to at least make them think that, but then there is the risk that the judge thinks that too. Yet what alternative is there?

Although he actually had a profit motive, god bless Larry Flynt.

And this is why public companies are worse than private ones. A public company exists to make the shareholders money. A private company exists to do whatever the owners want. And then, once in a while, one of them wants to do something good.

But sadly most major companies are public anymore.

> be the ones to push the limits of laws like this

I can think of a much more prudent way to do that, namely, by legally segregating their non-contentious archiving (the wayback machine et al) from their legally contentious archiving such that legal threats to one entity cannot disrupt the other entity.

Which would make them less sympathetic and imply that they think they're doing something illegitimate.

Also, the wayback machine is not a non-contentious thing. They're making copies of everything on the internet and then distributing them to the public. It's all content that was freely available to begin with, but as far as I know that has never been tested in court.

> Which would make them less sympathetic

You think them saying 'we understand that the web archive is a valuable resource of data which isn't under legal attack, and to best serve the needs of the public we'll ring-fence that resource by spinning it off as a separate legal entity that won't be affected by any legal action that may be taken against us while we fight a (more) contentious battle' would result in less sympathy for them?

How so?

You're proposing that they separate their more sympathetic more traditional activities into a separate entity than their more contentious activities, so that the latter entity is engaged in only the more contentious activities. Is it not clear why that makes the latter entity less sympathetic and more likely to lose? Even the act of doing it would imply that they expect to lose.

> Is it not clear why that makes the latter entity less sympathetic and more likely to lose?

Yes, but that entity is clearly violating the law and is archiving material that is already (by definition) archived by somebody, just not publicly accessible. This strategy is about preserving the more valuable non-alternatively-archived data.

> Even the act of doing it would imply that they expect to lose.

They're clearly violating the law, they've lost already on a similar case, if they don't expect to lose they should fire their counsel.

> archiving material that is already (by definition) archived by somebody, just not publicly accessible.

How useful to the public is it to have it archived but not publicly accessible?

> They're clearly violating the law, they've lost already on a similar case

They're not clearly violating the law, they're doing something where the law isn't established (which is the point), and the other case is subject to appeal.

You have to host copyrighted work to make an archive, there's no other choice since the current copyright system swallowed the whole culture. The problem isn't them, it's the law.

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