Comment by pcaharrier | Hacker News Reader

Comment by pcaharrier | Hacker News Reader

This struck me as significant (buried in the opinion's last footnote):

"IA makes a final argument that, even if its Open Libraries project did not qualify as a fair use, we should restrict the injunction to the Open Libraries project and allow IA to continue CDL for books that IA itself owns. In support of that argument, IA argues that the fourth factor analysis would be more favorable if CDL were limited to IA’s own books. In our view, the fair use analysis would not be substantially different if limited to IA’s CDL of the books it owns, and the fourth factor still would count against fair use. So we decline IA’s invitation to narrow the scope of our holding or of the district court’s injunction."

In other words, even if one purchases a print copy of the book, fair use would not allow them to lend a digital copy of the book to one person at a time. Why the court concludes that that "would not be substantially different" is unclear from just this footnote.

> Why the court concludes that that "would not be substantially different" is unclear from just this footnote.

It's because of two primary points made elsewhere in the ruling.

1. Copyright law tolerates lending by libraries in the case of print books because those books eventually wear out. Digital copies, on the other hand, arguably do not wear out. Therefore, the court does not think that what is tolerated for print books should be tolerated for digital books. It does not address the fact that print books can be lent out hundreds or maybe even thousands of times before needing to be replaced, whereas some publishers are treating e-books as "wearing out" after about 25 reads, at which point the library has to renew its license.

2. Publishers have established a very profitable licensing arrangement with libraries for e-books, and CDL undercuts it. One could argue that if CDL had been an accepted fair-use exception from the beginning of digital lending, such a market would have never taken off, in which case the "CDL undercuts the market" argument would not have had the same weight. But here we are, like it or not, in a time when most of the major publishers have established these licensing terms, and so the court observes that a market exists that can be undercut.

>Copyright law tolerates lending by libraries in the case of print books because those books eventually wear out.

I don't think this is entirely accurate when it comes to copyright law. The law extends back centuries and digital books only appeared within the last couple of decades. The ability to lend a book (by libraries or any owner) without committing copyright infringement is much more closely-related to the first sale doctrine (which has been around for at least a century in U.S. law in one form or another) than it is to a book's durability or lack thereof. Recall what the opinion says about the underlying rationale for copyright law: let the authors have a period of monopoly so they'll have an incentive to keep writing. If the first sale doctrine doesn't defeat that rationale in the case of print books then the same logic should apply to digital copies; it's the first sale that matters, not how many times the owner of an individual book can then lend that book to someone else. Granted, as in your second point, publishers can limit lending of digital books through license agreements or other digital rights management, but at that point you're in the realm of contract law, not just copyright.

It's absurd that the most consequential part of this entire ruling is treated as a literal footnote and given no more due consideration.

It's a footnote because it's the most inconsequential part of the ruling. The copyright infringement status of making thousands of unlicensed digital copies is not affected by whether you own a physical copy or not.

This ruling isn't about making thousands of digital copies. They're no longer able to offer even 1 digital copy.

The CDL is where they would buy N physical copies of a book, and then allow N active rentals of the digitally scanned version of that book with a waiting list for when people "return" them. Can't do that anymore.

The bytes were copied thousands of times. That means they made thousands of copies. It doesn't matter if the UX describes a concept of 'a digital copy' which requires that a new copy not be made until the old copy is deleted; copyright law does not say that this exempts you from the usual rule against making unlicensed copies. What you are thinking of, where you own 'a digital copy' of a book, is owning a license (as you have checked an 'I understand' box about a dozen times), not owning a copy. IA does not have permission to sublicense copies it legally owns (and didn't legally own the digital copies to start with, as their purposes weren't within the §108 carveout).

Reply on news.ycombinator.com