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Comment by ranger_danger | Hacker News Reader

> Similar to a photocopy or resale of a book, the publisher and author were paid when their work was purchased or acquired. What do the big publishers want to come after next – used bookstores?

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.

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This is why copyright strains to match its intention in a digital environment. It's all copies, out here: the number of transformations, duplications and mutations of this sentence to make it from my keyboard to your screen is well-nigh uncountable. So we end up with intuition-bending exceptions and judgements, some attempting to protect the spirit of the law, some enforcing some broad conception of intellectual property or duplication.

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-... )

Do you want to make backups unlawful? Or to require Zoom to police licensing for poster on walls? Because the strat IA is using here seems like a great way to get that to happen. Doing literally nothing --- or at least stopping when they lost in the district court and not appealing --- would have been strictly better for the rights of Internet users than what they actually did, which more or less torpedoed CDL everywhere in the country. Bad facts make bad law! They teach this in law school!

I don't see how. The lawsuit was brought by specific book companies whose copyrights were infringed, the outcome of this case does not determine what the definition of a copy or "backup" is outside the context of borrowing books. And in the zoom scenario, it does not shift the legal burden for copyright policing to anyone else (it's always the rights holder)...

CDL was already torpedoed before IA started doing it; there's a very similar scheme for digital resale called ReDigi which was sued to oblivion. In fact, it's why the publishers sued in the Second Circuit.

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

That's a very separate matter -- I was mostly here talking here about the philosophical question of "it's copyright, so if there's a copy made, we can use that as a guide to whether this is legal or not." There's no risk to what you're describing, mostly because there are -- as others have pointed out -- clear statutory exemptions for these situations.

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.

If you wanna get super technical: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...

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"

They're trying to engage in impact litigation to enshrine the "DRM ebook ~= physical book" equivalency into case law. Committing fully to that equivalency looks a lot like playing dumb, particularly to an observer that thinks it's a false equivalency.

Personally, I want less DRM in the world, not more.

I don't think this case is actually related to DRM... they are making digital photocopies of existing physical books and then lending those out, regardless of whether any DRM is applied by IA themselves.

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.

You're going to have to be more rigorous when defining "copy" in the digital age. The process of moving or reading any digital media necessitates copying in a way that physical media does not. Rights holders deal with this by employing DRM (taking control of your computer to make sure you're not making copies the wrong way). So what? Because the format people prefer to consume media on has changed we suddenly lose the right to resell or lend media we purchase? We decided that was fair before, why should development of new technology reduce the scope of consumer rights?

For your perusal and reference, a rigorous legal definition of copying as it applies to the digital age: https://www.law.cornell.edu/uscode/text/17/117

> Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

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.

It's not as restrictive as you're reading it. This bit is fairly permissive:

> 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.

It's reasonable until you consider digital media that you didn't buy on physical media. Without that physical copy you get no resale rights.

I think the definition being used in this court case is any method that allows someone to see and read an equivalent (or substantially similar) representation of the original book in digital form.

> Similar to a photocopy or resale of a book

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.

> 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?

They understand perfectly. They're hoping you don't understand.

It is impossible to make the Internet Archive understand copyright when their entire business model relies on not understanding it.

Alternatively, could their business model be understanding it and naking the wrong choice anyway? They've been e-begging of this lengthy ordeal something fierce the whole time, and now that they've lost seem to have straightaway launched into setting the whole thing up again. Putting their archive materials in perpetual danger seems to generate perpetual sympathy after making themselves the far and away leader in their sector. Reminds of what a lot of other sites have been doing.

Interesting perspective. I suppose it's possible they could be doing this on purpose just to get more attention/money... but I don't know if they're really that smart.

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.

Sorry I wasn't trying to argue that they're raising money specifically to line their own pockets. Maybe they want to branch out to other nonprofit internet causes, maybe they've become convinced they need a rainy day fund for the long term of their operation, maybe they're using this case as a lead-in to fubd lobbying and activism, etc. I'm just confident that, whatever the reason is, they know what they're doing to get there. They're not ignorant about the law of the one subject they've been dealing with for decades, and my argument is it's scummy to take your donating users hostage like a for-profit might regardless of why you do it, because nonprofits are given numerous legs up on the risk of competition specifically on the argument they wouldn't behave like this. You could probably even dig up some statements from IA over the years to this effect; they've certainly associated officially with peiple who said so all the time. If the field were even they would at least be taxed on whatever they're collecting money for like for-profits are, and that money could pay for the court process of batting down their inevitable bunk. Instead, you and I have to fund it when we have the selfish gall to do things like work for our wages or exchange those wages for food, plus now we have to fuel the other side too if we want to save our crowdsourced abandonware repository from this hostage situation come partisan dirty war.

They're a non-profit. They don't have a business model.

This is hopelessly naive. Nonprofits exist to collect more donations next year than last year.

I get directionally what you're saying, but on the specifics of always pursuing growth, that isn't true. Ironically, one of the people that I've heard argue most forcefully for the idea of steady-state non-profit is actually Brewster Kahle, though it wasn't about IA. I remember him arguing that a particular goal may require a institution of a certain size, and if you started bringing in more cash, it might make more sense to spin off another, independent organization.

(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!)

That is hopelessly cynical. Sometimes people actually are dedicated to the goals of the organization and not just personal gain.

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.

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