Appeals court seems lost on how Internet Archive harms publishers
arstechnica.com
arstechnica.com
At the same time, I can't help but be saddened by the defenses that the Internet Archive is using, which all seem to lean heavily on the idea of artificially limiting digital information in order to simulate the limitations of physical books. It's so frustrating that we've created an essentially post-scarcity system, where goods can be infinitely shared at almost zero cost without ever running into supply issues, and yet, we are forced to fit this world into the straightjacket of scarcity and property rights, instead of using it to benefit and empower everyone.
Especially since it's just fundamentally absurd; it's extremely difficult to actually make digital information, especially on the internet, actually function like a scarce rivalrous good that you can have property rights to. That's why piracy is such an issue, and fighting piracy will simply require more and more surveillance and corporate control of our computers and our communications until there's nothing left at all of the decentralized, post-scarcity, free-as-in-freedom potential of computers and the internet, because as long as an ounce of freedom remains, then information will slip through the fingers of corporations and the state-like sand, information wants to be free, dammit, and the more we try to deny it, the worse things get. This is no slippery slope argument either. I think the logic for why this progression would happen, the forcing function that will ensure this is pretty clear: if your goal is to eliminate piracy then any freedom on the internet and on someone's computer is a threat to that goal because information is infinitely copyable and redistributable and so the pursuit of that goal will inherently and necessarily always tend toward the complete elimination of software freedom in the long run.
Though more likely they each individually download the entire internet archive and then seek to burn it to the ground to stop others following, in short sighted chase the current quarterly return fashion.
This seems like the opposite of the intent of copyright? How could the intent of granting an artificial monopoly to one party on disseminating information be to provide equal access to knowledge?
There are a few people who might write a book and give it away for free, but if you want professional artists you need to ensure that they can make money by selling copies. In other words, someone like the Internet Archive won't start giving it away for free.
In any case, calling it a "monopoly" is a bit unfair. It's like saying the rape laws give a woman a "monopoly" on her body. No one is stopped from creating their own art, just from plagiarizing others.
The notion was that instead of having authors jealously and exclusively guarding their works, they can copyright them and get a period of guaranteed income. After that period lapses, the works enter the public domain which enriches the general public.
That reduces the risk of important works being lost.
Without the copyrights, you could imagine private libraries popping up and works only accessible via strict security.
I don't really have to imagine it. That seems exactly like every company that has an internal wiki or something similar.
Noted on the original point though. That just seems like such a foreign problem from todays environment with how readily people share information. I think it is more due to ease than the right to an artificial monopoly that people share so much information now though.
Totally agree. It solved a very different problem than what we have today and even runs counter to the original intent because of how much the terms have been expanded.
Now, we have things like scientific publishers who jealously lock up papers behind expensive paywalls and use copyright as a kludge to keep those papers from ever seeing the general public. What's worse, because everything is digital it's entirely feasible that these papers will all be lost to time if one of these companies goes out of business.
It really is high time we revisit what copyrights are doing vs what they were intended to do. I'm not opposed to keeping them around, but at very least we should change the time they apply to something far more reasonable. Heck, even when copyright is applicable should be bound to whether or not the work has been submitted to a national archiving service. Not submitted to the archiving service, no copyright applies.
> The Congress shall have Power…
> 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; …
Copyright is a means to an end. The end must be to promote the progress of science and useful arts for Congress to have the power to create such monopolies.
I would imagine harm is needed to get damages. Are they asking for damages?
I'd love to see the publishers take some kind of responsibility for making books available to underserved communities, but as I understand it the law is kind of weak of making people be responsible.
It’s a sad state.
1958 Stanislaw Ulam wrote (in reference to a conversation with John von Neumann)
Maybe LLMs will eventually make the profession of writing obsolete. We'd make books too cheap to meter.
It is very straightforward that making and distributing copies is infringement without specific permission to do so or some specific legal carveout. Characterizing making many copies as sort of the same thing as having one copy which you move around may be how you treat it morally, but it certainly isn't how the law works.
I think the misunderstanding is whether or not IA is making many copies or not. My impression is that they are not.
Regarding the removal of books, if they were licensed to the IA in a way that allows for 'digital lending', and the IA then violates that license agreement, then the IA no longer has the license and cannot anymore do 'digital lending'. And if they weren't licensed to the IA in such a way, then they're making and distributing copies without a license to do so, which is copyright infringement.
For the rest, we're having different conversations. I'm not concerned with the law as much as I'm concerned about what's good for society in this case.
This is why there was so much discussion around how this affects the ebook market: that's part of the fair use analysis, and often the most important part.
I've generally been of the opinion that CDL doesn't stand much of a chance of flying as fair use, but there's a non-ridiculous argument for it.
The period of uncontrolled lending during the pandemic is another matter that's less defensible, but the point of this case for the publishers is to kill "normal" CDL.
This is a good read, but section II is most relevant here: https://dash.harvard.edu/bitstream/handle/1/37374618/The%20P...
It makes sense when you think about it, otherwise courts would be flooded with lawsuits "because I don't like it".
There are requirements to show harm for other purposes like standing to sue in the first place, but that's not really a relevant issue here. Damages would of course be another, but copyright law has statutory damages that probably easily eclipse any actual harm here, and at any rate the parties already made a (confidential) agreement on damages after Internet Archive lost in the district court.