Hachette vs. Internet Archive: We're Still Fighting for Fair Use
libraryfutures.net
libraryfutures.net
However, it's not fair use to copy material and redistribute it. Furthermore, the creator should be able to determine the format of the release of their work. If someone wants to alter their work, they must do so in a transformative manner and not pass it off as the creator's work.
Someone who makes a book with formatting specific to say a PDF, could be unfairly reviewed or judged by readers who borrowed distributed copies that are formatted to epub, for example.
the best way to do it is through things like this, where the content is available to you and you can choose how to consume it - dark mode, but maybe also reader mode, large fonts, wide screens, text search, etc - these should be considered the basic necessities, and then anything you want to do to make it look nice and feel creative is on top, as an option - even the default option if you really care about marketing over content.
As a society we have to choose where to draw the line between the rights of the author and the rights of the consumer. Every right that we extend to authors is a burden on society, and we have to figure out the point at which returns for the collective are diminishing
All of that is irrelevant. I own those copies and am free to share them as a please. That the copy I own is digital versus physical should not change that.
You mean permanent copies, right? Then the IA doesn't disagree. They just want to loan out one digital copy while the original is locked up, in an attempt to emulate not making copies as closely as possible in a digital world.
> Furthermore, the creator should be able to determine the format of the release of their work. If someone wants to alter their work, they must do so in a transformative manner and not pass it off as the creator's work.
> Someone who makes a book with formatting specific to say a PDF, could be unfairly reviewed or judged by readers who borrowed distributed copies that are formatted to epub, for example.
I can get behind forced marking in some circumstances, but shifting between digital and physical should fall under first sale doctrine and the author should not have control over it.
Lots of temporary copies are already considered fair use. Every time you play a disc you make temporary copies, and nobody complains.
And if playing a CD can just use copyright and no "government DRM", then so can lending an ebook.
Please don't do this. I'm not talking about what the law is, I'm talking about what it can be. You are not responding to my argument.
It has been partially updated but not enough.
> So I think it matters a great deal what it actually says now.
I never implied otherwise.
A suggestion for change is by definition based on the current version.
I'm particular the "clearly no" does not work. The "clear" thing was not what I was contesting.
And I want to state here that I don't want to relitigate anything in the original discussion. I'm only replying because you seem to misunderstand what this post: https://news.ycombinator.com/item?id=41607486 meant in the first place and I'm willing to explain in other wording what it meant.
Early in this conversation I made a comment that shifted the topic slightly, but was also a reply to the argument in the parent comment. tptacek's reply to me was not a reply to the argument in my comment. It was arguing past me. Or I could say it was strawmanning me, but that makes it sound too intentional.
I think that situation is pretty simple. It also seems pretty simple that you misunderstood my comment #41607486.
What's your actual criticism, other than the incorrect idea that I accused tptacek of being off-topic, and other than vague petty snipes?
So I'm not missing anything. You had exactly one criticism, and I explained over and over that it's not what I meant. You can't change what I meant no matter what you say; that criticism is flat-out invalid. And you have no replacement criticisms, despite implying you had some.
Cool, that means I'm clear of all accusations!
> "Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed.
So the version of the work traveling through the air is not in itself a phonorecord protected by copyright law: fair use is not even relevant for it. (However, copyright law does protect the phonorecord in the CD from being performed publicly.)
And RAM is considered "fixed" by every interpretation I've ever seen.
I think a lot of different people could have told them they were going to lose, and especially that they were going to lose the appeal after they lost in the lower court. But they have no accountability mechanism. It didn't cost them anything to push the case as far as they could go, despite that doing so meant that the predictable result of their case probably dooms CDL under any fact pattern anywhere in the country.
People are understandably grumpy.
Appellate courts might do that (though even the vast majority of appellate decisions are narrow and, even if technically precedential, lack broad applicability.) Trial courts, whose rulings aren't even binding precendent on the same court, much less any others, do not. Even applellate courts in cases where an issue is raised which seems to offer the possibility of a ruling with broad impact often don't.
> So if you're making a run at a well-established feature of law --- say, "copyright law says you can't make copies of other people's stuff and distribute it without their permission"
I would say that the precise bounds of fair use (which absolutely does allow, under current law, in some cases, making copies of other people's stuff and distributing it without permission) is exactly the opposite of a well-established feature of copyright law; fair use is an area where the statutory rules are fuzzy and the application of them to anything that isn't almost an identical fact pattern to one that there is a prior case providing binding precedent on is...murky, at best.
One of the problems here is that there is a flaw in the legal system where if the law is unclear, there is nowhere you can go to request a definitive clarification. If you want to find out if you're allowed to do something, you first have to do it and only then find out if somebody takes you to court over it so the court can rule on whether you were allowed to.
Worse, they did CDL for a long time before COVID and nobody took them to court. To get a definitive answer you not only have to do it, somebody has to sue you. And they're not going to do that if they expect you to win, because that would cost them money to pay for lawyers only to set a precedent they don't like.
So in order to create the possibility of a precedent saying it's allowed, you have to push the envelope enough that your opponents think there's a good enough chance that you'll lose to take the risk of bringing you to court. That's preposterous and unreasonable, but it's how the system works.
On the contrary, fair use often involves copying materials and redistributing them.
The Internet Archive has lost its appeal in Hachette vs. Internet Archive
Do they not understand what copyright means? They are not allowed to make a _copy_ of a book without permission. Traditional libraries and bookstores do not do that... it is a very important distinction that they either seem completely oblivious to, or are intentionally playing dumb. Or they're somehow trying to get the actual definition of a "copy" changed.
Don't get me wrong, I'm all for IA and don't have anything against them... but in this case the court upholds that digital copies are still copies, and thus this is still copyright infringement.
If that were their real intentions, then I think people will call this no different than a typical for-profit tech corporation trying to artificially inflate their worth.
(Now I must say, I've also seen that strategy pursued in practice among businesses, and let me tell you, it's a lot easier in the non-profit world!)
It also doesn't make any sense in this context. Soliciting donations only to spend them on lawyers doesn't yield any net money for the organization.
I don't speak lawyer, but if I'm interpreting this right then this is the part where they say "actually yeah you can't sell or lend your copy to someone else unless explicitly authorized by the rights holder" i.e. we magically lost consumer rights by virtue of media being digital.
> only as part of the lease, sale, or other transfer of all rights in the program.
It's basically saying that users are allowed to make personal copies of a digital work, but they aren't allowed to sell or loan out those copies separately from the original. For example, if you bought a game on floppy disk, you can make backup copies of the disk it came on, but you can't make "backups" for your friends to play while you keep the original, or sell your copy of the game while keeping a backup for yourself. This seems entirely reasonable to me.
Personally, I want less DRM in the world, not more.
If you're talking about DRM ebooks purchased legally under license and then copying those, I think that's a separate issue that would have to be addressed later in another lawsuit.
I mean, right there is the attempted rhetorical trick that gives the game away. A photocopy is completely unlike resale of a used book, and is only considered “fair use” under specific, practical circumstances.
It’s hard to seriously argue that you could lawfully photocopy books whole, then make a lending library out of the copies, or that such a thing has any similarity to reselling used books.
Suppose you have a rare book, so to keep the book from being damaged while allowing people to read it, you make one photocopy and then store the book in a vault and allow patrons to read the photocopy. That seems entirely reasonable, doesn't it?
You can think about copyright that way, but as well as making the equivalent of lending a book online immoral and illegal, it also throws up all kinds of other strangeness. Why do we exempt caching? Should we pay extra for our backups? Should Zoom be paying for the posters on my wall, or my videoconferencee colleagues? And how many times?
(Those may be a little throwaway example, but I wrote a little bit more about the practical economic connection between copying and copyright back in 2008, here: https://www.oblomovka.com/wp/2008/08/07/copyright-fraud-and-... )
Zoom doesn't have to care about posters on walls for several reasons[0] and computer backups are already authorized by law. There isn't really any potential for any worse precedent than what already existed before IA took a crack at it. The converse to "bad facts make bad law" is that courts are really hesitant to establish precedent that is broader than it needs to be[1]. And the precedent here is very much limited to the practice of loaning out e-books without a license, which was already pretty likely to be a "no" from the courts.
The only real risk is to IA themselves, but they apparently are protected by other parts of the law that limit damages on libraries. So they just wasted the court's time.
[0] DMCA 1201, and more importantly, the fact that such a use would be de minimus
[1] Except for the current political hackjobs in SCOTUS who need a good court-packing
I do disagree with your assessment of the legal strategy, but wouldn't want to get into that here. IANAL (and therefore learned NOTHING in law school), but I worked at EFF when IA was a client, and I do know enough to not want to accidentally breach professional ethics and/or privilege regarding a client.
I feel that this is actually a challenge in discussions like this -- there's usually a whole bunch of stuff going on in the background (pro and con) that determines these strategies, but everyone involved who knows that background that can't really talk about it. But you know the same gang of lawyers as I do, so you can probably get their assessment more privately.
This EU directive actually places caching in the same boat as "browsing" itself... does that mean if you can view a book online, it's not copying?
>(33) "...this exception should include acts which enable browsing as well as acts of caching to take place"
Maintaining an owned-to-loaned ratio does not respect copyright.
The core concept of copyright is very simple: only you have the right to make copies. It doesn't matter if you destroy a copy beforehand, making the new copy is still illegal. Copyright is about permission, not equivalence, and you can't resell or loan out permission.
Or at least that's what the Second Circuit said when ReDigi was trying to sell used MP3s.
The thing is, the true core concept of copyright law is "whatever enables America's cultural empire to be cutthroat ruthless assholes that can devour other countries' competing cultural empires[0]". Free speech backed[1] by government-granted monopolies on that speech is the path it took to build such an empire, which is why copyright law became what it is today. The US government, in a sense, is perfectly willing to see its own library system grow increasingly irrelevant to curry favor with its domestic cultural industry.
The fact that said cultural industry is perfectly willing to censor itself to get market access in China probably means we've given them way too much free reign. China does not respect copyright. It doesn't respect freedom of speech, human rights, multiculturalism, feminism[2], gay rights[3], antiracism, or anything else the American people value, or even what the cultural industries themselves pretend to value. Hell, it doesn't even respect socialism[4].
Anyway, we should consider compulsory licensing. It's closer to respecting copyright than Controlled Digital Lending's lip service. Just have the government set a price to be paid by libraries for loaning out e-books, and let them manage their own services and e-book files.
[0] This is why, for example, Japanese media companies tend to be more litigious towards US fans than Japanese ones. Any author or publisher outside the US is at constant risk of cultural gentrification, and has fought tooth and nail just to gain a beachhead into US culture.
[1] To be clear I am NOT one of those "copyright backstops 1A" people, but the judicial system is full of judges who think it does
[2] https://en.wikipedia.org/wiki/Feminism_in_China#Arrest_of_Fe...
[3] https://en.wikipedia.org/wiki/LGBTQ_rights_in_China#Censorsh...
[4] If labor unions are illegal, you're not socialist.
Just have the government set a price
It is an imperfect comparison, since a cover is its own recording, and ongoing royalties are involved, but the point is that there are some precedents for setting a price.