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Comment by tptacek | Hacker News Reader

Physical libraries lend actual physical objects. They don't copy anything. This is a copyright case.

What's wrong with lenging digital copies over the Internet? It is actually better because it allows people from remote areas to access the books, it allows lending books at night, so it makes using the library more convenient, saves user's time and library's money.

Also, copying is ok in some cases; for example, the court found that Google scanning books for Google Books did it legally; 17 US Code 108 and 109 provide some exemptions from copyright.

It's good to want things. The contours of the Google case are discussed in this decision: Google Books scanning is "fair use" because books aren't made available in their entirety, and the IA's library feature is (unless SCOTUS disagrees, which seems extraordinarily unlikely) emphatically not.

Google Books case establishes that scanning a copyrighted work is not always illegal; you cannot use that solely to prove the infringement.

Regarding "books made available for free": libraries allow to read books for free.

It was never anybody's claim that scanning a copyrighted work is always illegal. This is an easy, straightforward decision to read; I think you'd be better off just reading it.

The decision is that lending of digital books causes "market harm for the publishers". It outweighs anything else. So the court only cares about profits of publishers and not right of the buyers, including "first-sale doctrine" and right to lend a legally obtained book. The court sees the case as merely making illegal copies and doesn't want to make analogies with libraries lending out books. It is obvious.

You can apply most of those arguments to a library lending out (distributing) physical books without authorization and causing same harm to the publisher.

No, that is not at all what the decision says. There's a 4-factor test for "fair use". Market harm is just one of them. The court found IA failed all 4 tests. That's the ballgame: if your copying is (1) unauthorized and (2) not fair use, it's infringing. There's no "library exception".

> There's no "library exception".

The copying only exists on a technical level because digital stuff is weird. Only one copy is usable at a time.

So either IA is guilty of copying because of a technicality, or normal libraries are only allowed because of a technicality/exception. (Because normal libraries fail the transformation test, they fail the amount copied test, they fail the expressive nature test, and they fail the market impact test.)

I want to believe the former is correct. Either way I believe there should be a way for IA to access that same "this isn't considered copying" territory somehow.

Libraries are not allowed to do what IA did!

I'm talking about what libraries are allowed to do, the non-digital version of lending. It fails every fair use test, but they're allowed to do it.

The only difference is whether technically copying happens, because controlled digital lending has the same results as a system that involves no copying. It doesn't have the common definition of copying where two people can access two copies at the same time.

If IA came first, and libraries came second, would we refer to libraries as having a technicality/exception that lets them be legal?

Though I suspect that if libraries were invented right now they'd be declared illegal.

No fair use test applies to the lending of physical books, which do not create copies and are not governed by the Copyright Act.

They don't have to pass the test, but they still fail it.

Please look at what I'm actually saying instead of snapping off replies that don't address my point. (And yes I edited in another couple sentences but the part about libraries not copying was in the original version of both those posts.)

They can't "fail" it; the test simply doesn't apply to them. "Fair uses" governs the legitimate creation of unauthorized derived works. Lending a physical book does not create a derived work.

(You're fine editing; I edited too, just for clarity).

You can still apply the elements of the test to them, and they fail every element.

Let me try making my post a list of bullet points.

* Libraries are allowed because technically it's not copying, and otherwise would be very illegal. Agree or disagree?

* Controlled digital lending is only copying on a technical level, not in the traditional sense where more than one copy can be accessed simultaneously. Agree or disagree?

* If CDL could somehow remove that technicality and do pure digital transfers, it would be fine. Agree or disagree?

* A better version of copyright would ignore that technicality. Agree or disagree?

Copying has a specific definition under the law. Physical lending of books does not come close to meeting it. Applying any of the fair use tests to physical book lending thus does not make any sense. It's like applying the Central Hudson Test to my cooking of a grilled cheese sandwich: it's lawful, the government has minimal interest in regulating it, none of that matters because my sandwich isn't expressive.

If your whole point is that we could tear down all of copyright law and replace it with a system that allowed IA CDL, then, sure. We could do a lot of things. I'm not really here for that argument (because there just isn't enough to nerd out about in it, not because I have any problem with the exercise).

But as for the law as has existed in the United States for the last 50-odd years, I'm reminded of the words of a young Baltimore entrepreneur, who infamously said "you want it to be one way --- but it's the other way".

> If your whole point is that we could tear down all of copyright law and replace it

No, no, not at all.

In this situation I just want to change the definition of "copy" slightly.

(And to point out that slightly different definitions of terms would make libraries illegal. There's nothing special about the current definitions. In particular they're not the most straightforward definitions at all. Again, none of this is about radical change, just looking at where small tweaks would get us.)

There is no reasonable definition of "copy" that would make the lending of a physical book a copy. The word "copy" literally exists to differentiate other actions from that action.

> There is no reasonable definition of "copy" that would make the lending of a physical book a copy.

But it could count as distribution. Copyright covers that. Library style distribution could be just as illegal as CDL style copying, by barely changing anything.

The point is that yes, digital items get treated differently by the law because using them requires "technical" copying. Moving them requires copying, using them requires copying, lending them requires copying. The law as written means that digital works will give their buyer far fewer rights than identical physical copies of the same. And yes, that's precisely why the current law is bananas, because it turns digitization into an excuse to enclose the commons. But I have no confidence in the courts to stop it, because that's not what courts do.

> because that's not what courts do

Except when it is. Laws are not computer code and it's precisely the court's job to interpret how they apply. This can include overturning previous interpretations. For examples see the recent ruckus about supreme court decisions changing what people interpreted as fundamental and accepted rights.

It is however not much a stretch to say that someone reading a book and committing it to memory is making a copy not inherently different from the "copies" being made when viewing something over the Internet. Now if you go and lend/sell a book after reading it you still retain the copy in your mind. Yet somehow that is legally fine.

The effect on authors is the same: A book is circulated multiple times after being bought once.

That's not how the law works. Again: this is a copyright case.

“The only moral laws are my laws.”

Who is this a quote from, and who is talking about "moral laws?"

I don't think people here are confused about how the law works. I think many people here feel the law shouldn't work that way.

Stating it explicitly: while the NEL was dubious, CDL should have been 100% legal, and it's a massive disappointment to see it ruled against.

Maybe a case with a better fact pattern (for instance: lending only books without competing publisher epubs) might have had a better chance, but I think people are getting themselves tied up in knots about IA's intent, which is just one factor in a fair-use analysis. The law cares deeply about copies, not about circulation or access.

Further: it seems weird to blame judges for applying what is in fact very straightforward law. Seems like your problem is with Congress!

Fair use is not "very straightforward law", and is deliberately a fuzzy line; I do in fact think CDL should have passed a fair-use analysis. Separately I also think the law should improve.

In which part of this case were the judges required to stretch at all? The decision is conveniently broken down across the 4-part fair use test.

It seems like you're making a "what happened" argument in response to a "what should have happened" argument. It's possible to make an argument in favor of this being fair use, and it's possible to make an argument against fair use. The (subjective) decision here was the latter; it doesn't preclude the possibility of the former. I'm not arguing that it was a stretch to say "no"; I'm arguing that it also wasn't a stretch to say "yes".

In terms of the fair use argument that could have been made, the Internet Archive's CDL obviously failed "nature of" and "amount and substantiality of", but I think it did not inherently fail "purpose and character" or "effect of the use", despite the decision saying it did.

In terms of concrete legal changes that could and should happen: "right of first sale" should be updated for digital, and include both "right to do format-shifting" (e.g. scanning physical to digital) and "right to lend copies digitally" (just like first-sale already explicitly allows physically).

I don't think you can reasonably make a "the law is not as simple as you say it is" argument and shore it up with a "the law should be different" argument.

The 4 fair-use test questions:

* How transformative the derived work is

* How much of the work is copied

* The expressive nature of the work

* The impact the derivation has on the market for the original

The Internet Archive:

* Copied works and made them directly available, deliberately avoiding transformation of any sort other than their accessibility.

* Copied them in their entirety.

* Exclusively copied books, the expressive work most legible to copyright law since the time of the framers.

* Made them available as a substitute for publisher-provided ebooks.

Any of these factors is enough to tank a fair use case. IA presented just about the worst possible fact pattern for all of them. This was an easy, straightforward decision to read. I didn't notice any point at which the 2nd Circuit had to stretch to reach the conclusion they did.

>Made them available as a substitute for publisher-provided ebooks.

Is this true? A substitute is like for like. The IA lending provided them as a lend on the proviso that a physically purchased book is available and unused.

Its like saying that a Bookstore is competing with a Library. However the Library can only satisfy a small amount of Bookstore demand, and does so as a public good. They arent the same and the lending is downstream of a sale.

I guess you could make the argument that ebooks also have crippling anti consumer licenses so both are similar. But that just leads back to "The law should be different"

Publisher ebooks don't have to satisfy any tests. The publishers own the copyright on the work. They can generally be as anti-consumerist as they like. That's the law.

I wasn't shoring one up with the other; I was making both arguments separately.

The four-factor test does not require that all factors pass. It's possible for a use to completely fail some of the factors but still qualify as fair use on the basis of the other factors.

No argument that CDL failed "amount and substantiality of"; they copied entire books. (This is, of course, exactly what they do with everything else, and that's not been a problem before.)

IA's "nature of" argument could have been reasonable for the subset of works that constituted nonfiction/educational material (there is a long history of the copying of those such work for educational use); that wouldn't have sufficed for other works, but it was a reasonable point for the subset of works it applied to.

For "purpose and character", the use was not hugely transformative, but it was turned into a different and more accessible form.

As for "effect of the use", I would argue that CDL was not in practice a substitute for most uses of a book or ebook. A book that you borrow, and have to return, can sometimes substitute for owning your own copy, but not always; in practice, the users of libraries and the users of bookstores overlap but I would venture that the majority of people who borrow a book from the library would not typically have bought the same book if the library didn't exist.

Suppose one built an automated apparatus that remotely opened a physical book and held individual pages up to a webcam for transmission to you on a video call. That's technically making a copy in the course of its operation, but you're still effectively reading the original physical book, with some assistance. (The Supreme Court ruling against Aereo would sadly probably be cited to shoot down such a model. That was a sad ruling as well; the opposite ruling would have enabled an incredible variety of uses and possibilities.) The 1:1 CDL mechanism seems effectively equivalent to that.

> I don't think people here are confused about how the law works. I think many people here feel the law shouldn't work that way.

No, a LOT of people in these very threads are arguing that the CDL IS 100% legal and that the ruling is ... well, many things.

Are you suggesting that the law reflects an entrenched, emotional celebration of an antique, traditional notion of a library, and not something rational and consistent about lending, copyright and the economics of writing? Apostasy! I want this conversation to only be strictly about what the case law says, so that I may tell you about it “again” and again!

No, the problem is that the preceding analysis is a category error, in that it assumes the law has a purpose of minimizing the circulation of an individual book. It does not, which is why traditional libraries weren't threatened by it.

I don’t know, it doesn’t take a genius or a law degree to understand that maintaining a one to one ratio of physical copies to digitally lent books is the same shit as a regular library but more convenient. It stands to reason that the law shouldn’t preclude technological advances that make libraries more convenient. The reason traditional libraries aren’t threatened by the law is cultural. There are states that ban books my dude, it’s all cultural.

I wonder why judges are anti-library. Although I can understand why they are generally anti-technology: the law school people have a lot of beefs, and beefs with the compsci people rank highly. And before you start telling me all the reasons why “beefs” aren’t a central part of the character of judges and therefore law in this country, you should maybe read more about guys like Clarence Thomas and Samuel Alito.

Judges aren't anti-library. People care a lot less about "compsci" culture than "compsci" people think they do. We simply aren't that important.

> Judges aren't anti-library.

Some are now!

What does this have to do with compsci culture? Do you think only technical minded people can be interested in access to digital content?

It’s apparent to me that the law has jumbled a bunch of archaic concepts of what “copying” means in order to transfigure the argument into a technically obscured realm.

A library allows one person to read one book at a time. A digital library doing the same while using technology to make lending more efficient accomplishes the exact same goal.

We’re using precedent to override common sense and prevent digital libraries from effectively existing under the guise of protection.

> I wonder why judges are anti-library.

Is that really suprising considering the general copyright climate? Do you link libraries would be allowed to exist if they were conceived of today?

I'd say probably not - but then "AI" seems to not be facing the same rules as regular people so perhaps if libraries could find a way to become "big" fast enough they could have a chance.

> in that it assumes the law has a purpose of minimizing the circulation of an individual book

That's exactly what it's about. Publishers lost the battle of banning libraries, but have won and keep winning everything about digital books.

The end effect is that people have fewer liberties when it comes to digital things. Authors don't gain much. All the profit goes to the publishers.

And the next step is to deprecate and stop publishing physical prints at all, which is already mostly the case with other kinds of media. Then you won't just have less rights with digital things but less rights period.

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