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Comment by jfengel | Hacker News Reader

Do they have to show harm? If the goal is just to shut down the digital lending I'd have thought that was a fairly straightforward consequence of the copyright.

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.

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The article makes it sound like digital lending is one at a time, so it falls squarely under how libraries are authorized to work. Thus, it's not at all straightforward that digital lending violates copyright law.

If libraries weren't older than the copyright system, they would be banned as well nowadays with the extreme laws in place.

The very idea of a library would be mocked as a ridiculous utopian fantasy.

Very accurate. We now have this magic technology that can duplicate books we had no problem lending for free when we were physically constrained. Now that we’ve advanced, we still use archaic constructs to artificially limit information.

It’s a sad state.

"One conversation centered on the ever accelerating progress of technology and changes in the mode of human life, which gives the appearance of approaching some essential singularity in the history of the race beyond which human affairs, as we know them, could not continue"

1958 Stanislaw Ulam wrote (in reference to a conversation with John von Neumann)

We have a magic technology that duplicates books, but we don't yet have one that writes books. At least not ones worth reading.

Maybe LLMs will eventually make the profession of writing obsolete. We'd make books too cheap to meter.

'One at a time' is not how 'libraries are authorized to work'. There are specific additional permissions granted to libraries[0]. They have nothing to do with making and distributing arbitrarily many copies of a work, regardless of whether the previous recipient claims to have deleted it before the next person receives it - libraries are permitted to make one copy, or in some cases three - and the suit is primarily about the period where IA enforced no such restriction in the first place.

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.

[0]: https://www.copyright.gov/title17/92chap1.html#108

Kind of weird to remove a bunch of books from a library that has controlled digital lending as punishment for a period of time where they removed those controls. If there was damage during the time they removed the controls, then that's worth talking about. But they effectively work like any other library today (they buy a copy, digitize it, and then lend out the digital copy one at a time just like the physical work), so I don't see how removing books really helps anybody.

I think the misunderstanding is whether or not IA is making many copies or not. My impression is that they are not.

I do not know how you would end up with that impression, because for each person who downloads a copy, the IA has made a copy.

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.

We're using different defintions of copy, and that's not an interesting discussion.

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.

The argument (or at least the main argument) IA is making is that CDL is fair use, so they're analogizing it to the "one at a time" nature inherent to lending of physical books. Of course actual physical lending doesn't involve making a copy and is more of a "first sale doctrine" type situation, so this is just an analogy.

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.

It could also be argued dead tree libraries harm publishers... But that doesn't mean it's a good idea to ban libraries, corporate interests should not beat societal interests when they are not aligned.

Not just "could be", indeed it has been argued.

This is a good read, but section II is most relevant here: https://dash.harvard.edu/bitstream/handle/1/37374618/The%20P...

IIRC you have to show harm to take anything to court. I recall cases on federal regulation that failed to move forward because a state AG failed to prove harm.

It makes sense when you think about it, otherwise courts would be flooded with lawsuits "because I don't like it".

Internet Archive is claiming their lending program is fair use, and deciding whether something is fair use involves showing the effect (or lack thereof) of the use on the market for the work. A use that doesn't hurt sales is much more likely to be held as fair use.

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.

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