Publishers secure widespread support in copyright battle with Internet Archive
torrentfreak.com
torrentfreak.com
I'm a creator too and I benefit from the protection of intellectual property I create. But I also recognize that my freedom ends where others' begins and that the benefit of society overall must also be weighed, since I didn't just grow up and survive all on my own in the wilds but rather relied on all the other good people that happen to be around me...
IA has created a vast unauthorized online database of literary works that anyone in the world can access for free, which differs from the most flagrantly illegal pirate websites only by reason of its residing in a U.S. not-for-profit. ...
IA’s infringements have caused and will continue to cause significant harm to Amici’s members. Many members’ works are part of the “long tail” of older published works that earn much of their revenue from licensed electronic uses rather than sales of new copies. Because authors and many other creators today generally earn so little from their writing,3 they rely on income from the long tail, and even a seemingly minor reduction in such income will materially impact the authors, visual artists, photographers, and other creators who depend on the income for survival.
Further, creators and their publishers will find it more challenging, if not impossible, to bring older titles back into print, whether in physical or electronic form, if they must compete with free Open Library-generated ebooks from IA. Finally, such free Open Library-generated ebooks will also create a direct market substitute for authorized lending by libraries outside the U.S., which lending – unlike Open Library – generates royalties for creators under the public lending right recognized by most other developed countries.
Source: https://storage.courtlistener.com/recap/gov.uscourts.ca2.609...
Like many people on HN, I regularly use the wayback machine or other parts of the Internet Archive to track the history of websites or read out-of-copyright and public domain works. Sharing this information is important and should be continued.
I also believe in the concept of "Fair Use" for sharing and discussing excerpts of more current works.
But when it comes to outright republishing of in-copyright printed works, the rights of creators and publishers need to be recognized. Brewster Kahle decided that an overly broad interpretation of the Internet Archive's mission trumped these rights and the laws of the United States. Even when it was asked to repeatedly stop, he continued.
Far from this being a "crusade" against IA, it's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.
The collateral damage to the many noble aspects of the Internet Archive is bad. I truly hope it survives.
'Republishing' is a bad faith description here. What IA is doing is not 'republishing' but offering 'Controlled Digital Lending' with time limited lending for scanned versions of items they posses digital copies of.
This is happening in the context of the same publishers refusing to sell lend-able digitial versions of books to libraries at the same price as physical books.
Book lending is a concept what these publishers are actively working to eradicate and this lawsuit is an important part of that.
The IA does both. It's pretty easy to upload copyrighted works that aren't kept behind borrow-walls, and people do it all the time. The IA doesn't seem super motivated to change that.
It would indeed be unfortunate if the baby were thrown out with the bathwater, but come on: I typed "site:archive.org cranberries" on DuckDuckGo and was directed to a downloadable track-by-track rip of the Irish band's greatest hits album. That's tough to defend with a straight face.
Neither do most sites hosting user-submitted content.
IA responds to DMCA takedowns. What are they supposed to do if you haven't issued one to them?
Regarding legality, the media company battle re: DVD-CSS is quite different in quite a number of ways such that it doesn't simply apply here. That said, I'm not making a legal argument -- I am advocating for a system that makes sense to authors (whom we rely on to write the things that we value) and the greater good.
Just to rephrase for clarity: the way that pretty much every college student that I know downloads many, many books from the archive is via an undocumented route on the website that isn't needed for the site's published borrowing functionality to work.
If you look here: https://archive.org/details/lexicographyoedp0000unse you will see that downloading is not supported.
Yet if click "Borrow" and then you hit this URL while logged in: https://archive.org/services/loans/loan/?action=media_url&id...
You will download a ADE stub file that is trivially deDRM'd.
IA's "solution" to a previous issue with publishers was to remove this functionality from their site. They pulled the links in the UI but not the functionality... I don't think they operate in good faith.
But... far be it from me to expect any dialogue where to be anything but creator hostile. To my mind that is very much short term thinking. We need to make sure creators are paid for their work because we want them to keep creating -- and for others to also create. Just because things are legal doesn/t make them right and/or for the greater good.
Again, if you're allowing someone to view something, there is always a way to copy it. DRM and the legal frameworks around it (which we both seem to agree that IA has applied here) are the best available deterrent to copying.
The only way to be sure something will never be copied against your will is to never distribute it to anyone.
You are the one that is asserting that 1. All DRM is inherently bypassable, which is simply not at all true. and 2. That anyone pushing for improvement is against lending, which is not true. This is what YOU are saying, not me. I am simply saying that if the IA wants to keep going (and I would like them to) they might close an unused http route. That is LITERALLY all I am asserting. Good lord, why even bother?
The idea of CDL is indeed novel and possibly worth pursuing through the courts. However, it is an argument fraught with financial peril for the IA because of the statutory penalty structure of US Copyright law.
I would have agreed if not for HN. IA is basically used as a paywall workaround here; that’s transparent republishing.
I think CDL can work and win legally. Unfortunately, IA's blatant disregard for copyright has poisoned the well for likely a long time to come.
1. https://en.wikipedia.org/wiki/UMG_Recordings,_Inc._v._MP3.co....
2. https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
3. https://www.amazon.com/How-Fix-Copyright-William-Patry/dp/01...
This is a district court case (i.e. one that doesn't set precedent) where the record companies liked the result, which also effectively bankrupted the defendant. One of the media companies then bought the defendant, causing the case to not be appealed.
It's not obvious they would have lost on appeal. The district court largely ignored the Sony Betamax case and what MP3.com was doing was effectively operating tape recorder with a longer wire on it.
So does a Betamax device though?
The problem is that U.S. copyright law is twisted to reward corporations over authors and artists. Copyright extending automatically to almost everything, and lasting life of the author+70 years, is absolutely ridiculous.
All of these copyrights floating around everywhere, lasting lifetimes and accumulating at an unimaginable rate serve primarily to interfere with the free exchange of information and the development of our culture. The vast majority of copyrighted works - easily 99.999% - will go unenforced by the original authors, turning into rights landmines. The lion’s share of those that are enforced are enforced by copyright trolls against innocent creators.
This system is horrible and often does the opposite of what was intended: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Like that's ever going to happen. :(
As opposed to an ordinary library, which... wait.
> Further, creators and their publishers will find it more challenging, if not impossible, to bring older titles back into print, whether in physical or electronic form, if they must compete with free Open Library-generated ebooks from IA.
But why does that matter? It's neither providing an incentive to create new works nor making older works available that wouldn't have been, since IA doing so is literally the thing they're complaining about.
> generates royalties for creators under the public lending right recognized by most other developed countries.
This is basically an argument that it can't be fair use in the US if it isn't in some other country, because otherwise people in the other country could get it from the US. That seems like a stretch.
Especially since it falls to the opposite problem: If we're considering laws in other countries then there will be at least one where there is nothing illegal about what IA is doing. At which point someone is going to do it, and what does it matter to anyone which country they're operating from when the internet is accessible everywhere?
I was not aware of the dividend on every loan in other countries. If you can provide a reference to where and how much, that'd be quite interesting.
Ireland has it in place under the provisions of our Public Lending Remuneration Scheme, which is currently capped at €200,000 per annum, paid at a rate of 4.39 cents per title borrowed in 2020. Payments to individual authors are capped at €1,000 with a minimum sum of €2. Authors receive an average payment of just under €32 per year for having their books borrowed from public libraries in Ireland.
Under the PLR scheme in the UK authors can receive a maximum annual payment of £6,600.
I wonder how that compares with the fees US libraries are being for digital lending rights to publishers…
This is the same as controlled digital lending.
> and eventually have to replace them (due to wear and tear or e-licensing conditions)
Physical books frequently last longer than copyright terms and it's not obvious why authors should be entitled to double dip just because someone spilled their coffee, i.e. it should be equally reasonable for a library to print their own physical replacement copy of a damaged book that they already own, because they already own it.
And the worst part is that certain governments have pushed it so far that it is pretty much ubiquitous across the globe. Nobody is allowed to not make absurd copyright laws.
Some guy being able to exclusively make money off of work that his great grandfather authored 120 years ago is not useful to society. It does not progress the useful arts or sciences.
I'm against these stupid-long copyrights but because I believe all human endeavours are a result of human society. Fair remuneration but not forever.
Yeah, I'm answering my own question. If society can't access work, they can't use it fairly or otherwise.
The other factor is that people don't really behave according to copyright rules. People will habitually create copies of images all the time by uploading them to discord, imgur etc. Their intent is not to create copies, but to simply show it to somebody else, but because of some technical reason they can't easily do it without that.
Memes, specifically image macros, are likely suspect whether they fall under fair use. They can sometimes take the entirety of the work.
There are some other reasons like this as well that I can't recall right now.
It also has a history of lip service against publishers, while in reality acting entirely in their interests. That is the reason why they joined in, not any heartful concern for the little guy. They have consistently fought against higher royalty digital publishing. (https://www.techdirt.com/2015/07/30/authors-guilded-united-r... https://www.techdirt.com/company/authors-guild/)
Information available for free? How awful.
This really has started to make the Internet Archive one of the best places to pirate media. It's starting to have a comparable selection to ThePirateBay, but without any ads for "Hot Milfs In Your Area".
I love IA, but I think they really need to start cracking down on this stuff, because if they don't I think it's going to prompt even more lawsuits.
That said, when the Internet Archive is directly competing with both the Switch Store and ThePirateBay, then lawsuits from Nintendo are basically inevitable.
I agree with your broad point, because archival is important, despite what these big corporations think, but I think that the way that IA is doing stuff right now carries a very real risk of getting sued into oblivion.
I get that your question is asking more the "how do we protect ourselves from lost media being (intentionally) created if we're not allowed to break copyright?" and I don't think the uploading to IA itself of copyrighted media is even what the media companies have an issue with. If I rip a blu-ray and store it into a private data store (e.g. a non-public Google Drive or my personal NAS or something), I doubt that the entertainment and publishing companies would have much issue. I think the issue comes from the fact that the way that IA currently operates basically has no real difference between ThePirateBay, minus the ads. Any number of people can download any number of files at a time from IA, completely unrestricted, usually without DRM, and a lot of it is media that is still actively being sold.
It would be different if IA operated more-or-less like Abandonia, where they only allow public downloads of media that has no legal way to purchase it, because at that point it would be hard to argue that they're causing any damages. If they did that, I don't think anyone would bother suing them.
I'm hardly a moral paragon; I've torrented my fair share of movies and music in my day. I've also defended piracy as a way to fight against the huge number of streaming services [1]. It's not even that I necessarily have a "problem" with how IA operates, it's that I think that if they don't look like they're making a reasonable effort to fight pirated content, they're going to get sued over and over again. Whether or not they're in the moral "right" isn't really what's at issue.
[1] https://news.ycombinator.com/item?id=39692375
ETA:
I am aware that IA did do some amount of Controlled Digital Lending, but that's not what I am taking issue with. A lot of games/movies are just publicly available, unrestricted, for anyone to download.
I am for DRM because it could enable something like the IA to host and lend books without violating author's privledge. The IA's implementation is foolish and, I think, carries the intent to allow exploitation.
The thing that really concerns me is the fact that people are treating IA a general file sharing site. You can find complete sets of ROMs for basically any game system you can think of, TV shows and movies that can be downloaded completely uninhibited, completely DRM-free versions of books.
To some extent data harboring laws will protect them, but that's not a silver bullet; if they're not making an active effort to deal with copyright stuff I really think it's going to bite them, and that's a shame. The IA is an extremely valuable resource when used right.