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Comment by tptacek | Hacker News Reader

Yes, it is. But back to the point I made originally: this case had an infinitesimal chance of success. You can come up with a worse fact pattern for fair use, but you have to work at it. Whole copies of books, the form of copyrighted work most legible to the law, that are currently for sale in ebook form by their publishers? That was simply never going to be determined to be "fair use".

IA isn't going to shut down over this, I don't think. I don't think they'll pay any damages at all, since there's a statute that suggests damages be remitted for nonprofits.

Again: the real damage is a 2nd Cir. precedent that 1:1 CDL fails the fair use test. That's going to hurt other people. This happens often enough that there's a saying about it: "bad facts make bad law."

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> Whole copies of books, the form of copyrighted work most legible to the law, that are currently for sale in ebook form by their publishers

For some reason this was acceptable in physical form for hundreds of years. CDL is just making it more convenient for our modern reality.

No it's not.

Libraries don't make copies. They lend you the actual books.

Copyright is literally right to copy. Scanning the book and doing something with, such as lending it forward, is copying.

(The covid thing strengthens the case of the book guys - the CDL suddenly let anyone get anything because Archive decided to change the rules unilaterally)

The problem is that the act of sharing something digitally is implicitly assumed to be making a copy wheres lending someone a book you have already read and internalized is not. Copyright laws should have been adjusted to preserve the same freedoms for digital use as you had before rather than being even more of a bad deal for society.

It's not "assumed" to be making a copy. It clearly is making a copy. Nerds like us want there to be a special kind of copy that doesn't "count" under copyright law, to facilitate things like CDL. But there isn't, and the courts are the wrong place to look for it. Go get a new Copyright Act passed.

Since this is hn, I'm going to be pedantic and somewhat offtopic. :)

There are special kinds of copies that specifically don't count under copyright law : basically anything "cached", be it in RAM, browser caches, or similar.

I’m sure you’re aware that in our digital world, there is no difference between “transmitting the book” and “copying the book”. Yes, you can argue the law needs to change first but that’s not how changes happen. Laws are bent by society, not the other way around.

I'm not sure I follow what you've written here but it seems like you might be the 10th person on the thread to claim that "transmitting" a book is different under the law from "copying" it, which: no, the court is not confused about which copies are taking place and whether the resulting fixture of copyrighted work in some media comes with rights to distribute that content.

Except that's the whole point of the CDL compromise, that only one person can borrow the book at a time.

The compromise is obviously unilaterally decided by Archive, as demonstrated by the fact they randomly decided to not even honor that "compromise".

There is no CDL compromise clause in the Copyright Act.

With physical copies only one reader can read it at any time. With digital copies in principle everyone can read it even in 100 years from now going back to one original copy.

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