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Comment by EarlKing | Hacker News Reader

A physical library does not involve making a copy, but lending out an existing physical copy. One book, one reader. "Controlled Digital Lending" literally involves making and transmitting a copy to another physical medium electronically. Brewster has endangered the good work done by people at the archive for a case he was never going to win and which was of dubious value. If he wants to be the next Anna's Archive then he should drop all pretense and go do that... but leave the archive to do what the archive is meant to do.

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1) Making a copy is not always illegal; for example, scanning books for Google Books by Google is considered legal.

2) Digital books are DRM-protected so you cannot lend them or re-sell like you can with physical books. So making a digital copy of a physical book can be considered merely a method to workaround these restrictions.

3) Publishers want to use new technology (electronic books) to remove rights that consumers had with physical books, to be specific: a right to re-sell the book, a right to lend the book, a right to make archival copies etc.

> 1) Making a copy is not always illegal; for example, scanning books for Google Books by Google is considered legal.

I believe I remember this was tried at one point too. The significant difference here is that Google has seemingly unlimited money to throw towards lobbying and court cases

Google books shows length limited excerpts. That's a huge difference.

Authors Guild v. Google - https://en.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google,.... and https://www.copyright.gov/fair-use/summaries/authorsguild-go...

> The Second Circuit agreed with the district court’s ruling that Google’s digitization and subsequent use of the copyrighted works was fair use. In concluding that Google’s use was transformative, the circuit court found that “Google’s making of a digital copy to provide a search function . . . augments public knowledge by making available information about [p]laintiffs’ books without providing the public with a substantial substitute for matter protected by the [p]laintiffs’ copyright interests in the original works or derivatives of them.”

> ...

> Regarding the Google Books project’s potential to impact the market for or value of the copyrighted works, the circuit court held that—despite the search function’s potential to cause “some loss of sales”—the brevity of the snippet search results and the “cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view” make it unlikely that Google’s use could “provide a significant substitute for the purchase of the author’s book.”

Making a copy is not always illegal when it is considered fair use or fair dealing. Part of the analysis for determining the same involves the quantity of material copied. They copied entire books. Your other points are entirely irrelevant. They knew what they were doing was wrong, and they jeopardized the archive by doing it. If you want to change the law, change the law. If you want to break the law, break it yourself... don't drag the archive down with you to do it.

> If you want to break the law, break it yourself... don't drag the archive down with you to do it.

It takes a court decision to know if the law was broken or not. You apparently forget that the Wayback Machine itself breaks copyright laws and went to court over this many times. Most cases were settled by removal of infringing content but it doesn't undo the fact that infringements did actually happen.

The IA exists in the first place because Brewster Kahle isn't afraid to test what's possible and go to court if necessary.

You can take it or leave it. Or you can build your own archive... oh wait, you can't because it breaks the copyright law which is unacceptable for you.

> It takes a court decision to know if the law was broken or not.

It takes only a working mind to know that, and the court's decision was obvious to most before it was rendered. This could have been foreseen (and was).

> You apparently forget that the Wayback Machine itself breaks copyright laws and went to court over this many times.

...and they had good reason to do so then as there were fair use arguments to be made in favor of what they'd done. That was not the case here, and they were warned repeatedly and chose to ignore that advice.

> The IA exists in the first place because Brewster Kahle isn't afraid to test what's possible and go to court if necessary.

There's a difference between being unafraid and being foolish. Guess which one this was.

> You can take it or leave it. Or you can build your own archive... oh wait, you can't because it breaks the copyright law which is unacceptable for you.

Ah yes, except for that whole fair use thing and explicit carve-outs for the actually legal work they do, which I've been commending throughout this entire thread. Please take your blackwhite thinking elsewhere. It's not productive.

Wayback Machine is NOT fair use, you just invented that out of thin air. They produce full copies of copyrighted content, store them and make them available for the general public. They have been sued repeatedly over the content they host and the content in question was removed. There were no explicit carve-outs that I'm aware of.

Now the same thing happens with the CDL: they're sued over the content they host, they try to defend their rights, they lose and now will have to remove the content. Somehow you're upset and knew from the start they would fail.

> Please take your blackwhite thinking elsewhere. It's not productive.

This is amusing because your position of "don't break the law, change the it first, then do what you want" IS what's unproductive. Laws don't change when no one breaks them, it's works the other way round.

All these "carve-outs' and "fair use thing" you value so much appeared because it was demonstrated on practice they are necessary. People fought for their rights, people challenged the laws, people demonstratively broke the laws and laws changed as the result. There's no other way.

That is incorrect. Libraries regularly scan and OCR books to make them digitally accessible and searchable.

I hope the likes of the Library of Congress are ready to shutdown their online services.

Digitally accessible and searchable on site, not on line... unless you're saying the Library of Congress makes *in copyright* works available on line to all comers?

What is the difference between lending a book in the library building and over the Internet from the library website? Lending over Internet is better because it saves the user from transportation cost, allows to read books at night etc.

THE DIFFERENCE IS THAT A COPY IS MADE.

They broke the law. This isn't that hard to understand. If you don't like the law then either work to change it, create substitute works, or break the law in a way that doesn't involve dragging down the archive with you.

Again, for clarification: this is the archive which contains copies of all those other web pages?

Should they have waited to start this archive, which is important enough for you to worry about its future existence, until the law on the right to make copies of websites was settled law? Bearing in mind that there are ongoing lawsuits and discussion on this topic right now, over fifty years since the emergence of the digital networks that rely on making copies to disseminate information.

Do you think that there was an open-and-shut case for an online archive in 1996?

So we should just ignore what was the intention with that law, and stick to the written rules even when it’s stupid in some new environments. Great idea!

When you watch anything on Netflix, the movie is copied a few dozens of times at least, and even you make a few copies during watching it, but I don’t think that it’s legal to make a copy, I’m quite sure that it’s stated in their ToS. So the whole internet infrastructure, and computer manufacturer, and every user should be sued with this logic.

The law specifically gives libraries a carveout to make one copy in some cases or three copies in others, for purposes like this. It does not give them the ability to send these copies to library customers over the internet.

That is exactly what libraries do though by giving access to fully scanned books on their website.

Still, under the CDL it is only one book, one person. This is significantly different from a site like Anna's Archive.

No, it isn't. They're issuing a copy to the reader for the duration of their checkout. Your argument might hold some weight if they scanned a book, destroyed the book, and then deleted the book from their own servers every time it was lent out... but that's not how CDL works. What they're doing is unambiguously copying.

They aren't lending the physical book and the digital book simultaneously; there's only ever one "book" lent. To my mind this is materially different from sites like Anna's Archive.

The law is the law, and the court doesn't care about your opinion. They broke the law.

Seriously, I don't understand the reluctance of some to admit this. It's almost like the rule of law just doesn't exist for you as long as it's a cause you care about. Even more puzzling is the idea that you should just wantonly break the law in a way that drags down good institutions with you as if your own personal battle with bad law is more important than anything else. It really isn't, and I wish some of you would accept that fact rather than trying to one-up each other on the internet. It's not helping anybody.

Civil disobedience is breaking the law. Are you suggesting that Rosa Parks should have sat in the back of the bus?

It does when the physical library is loaning an ebook -- it works on exactly the same principal as CDL -- library owns ebook, library loans out to one user the ebook -- that's why there is often a wait list when trying to check out ebooks from a real physical library. In fact, even the same DRM system is used to prevent the user from keeping the ebook after the loan is up -- Adobe's Digital Editions.

Libraries have different contracts with book publishers for eBooks. IA didn't have any contracts with any publisher.

See: https://www.npr.org/2022/11/09/1135639385/libraries-publishe...

The libraries lent physical books without any contracts. What publishers want is to make so that the rules and rights regrading physical books do not apply to digital books; what IA wants is to allow libraries treat and lend digital books the same way as physical, without permission from the publisher.

The contracts with libraries you mention require a library to buy a license for every ebook, and renew the license periodically; the publisher may set arbitrary price and terms.

So what the publisher wants is to strip users of digital books part of their rights.

You never had rights to freely copy digital books. You're not being 'stripped' of them when a judge says 'the law applies as written'. If you want these brand new rights, call your Congressman.

Does this case's effect on CDL mean that a library could still buy a huge stack of ultra-cheap eBook readers, load each one up with their one copy of a given book, and then lend out the physical readers?

Presumably not, because the same copies would be created. This wasn't a case that hinged on DRM or content protection. IA was making copies, lots of copies, and that's an action governed by copyright law; it's right there in the name.

All that aside: if you have 1:1 physical books anyways, what is the reader accomplishing here? Just loan out the book.

No, but I suspect the licensing on the ebooks already forbids transferring the physical reader the book is on to another person.

Maybe he was trying to torpedo CDL from ever being viable again? It seems a pretty despicable practice that attempts to shoehorn artificial scarcity to digital media, and I hate the fact the our libraries waste their monies propping up archaic monopolies, so maybe this is a win after all.

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