The Internet Archive has lost its appeal in Hachette vs. Internet Archive
https://storage.courtlistener.com/recap/gov.uscourts.ca2.60988/gov.uscourts.ca2.60988.306.1.pdf- Related URLs (from threads we merged hither) in case of interest:
https://www.theverge.com/2024/9/4/24235958/internet-archive-...
https://www.wired.com/story/internet-archive-loses-hachette-...
https://finance.yahoo.com/news/major-book-publishers-defeat-...
https://news.bloomberglaw.com/ip-law/internet-archive-digita...
-- dang Reply - This has been playing out for many years. And it's all because Brewster Kahle decided that an overly broad interpretation of the Internet Archive's mission trumped the rights of authors and publishers, and the laws of the United States.
When IA was asked to stop CDL - many times - he continued. The National Writers Union tried to open a dialogue as early as 2010 but was ignored:
The Internet Archive says it would rather talk with writers individually than talk to the NWU or other writers’ organizations. But requests by NWU members to talk to or meet with the Internet Archive have been ignored or rebuffed.
https://nwu.org/nwu-denounces-cdl/
When the requests to abandon CDL turned into demands, Kahle dug in his heels. When the inevitable lawsuits followed, and IA lost, he insisted that he was still in the right and plowed ahead with appeals.
He also opened a new front in the court of public opinion. In his blog posts and interviews with U.S. media, Kahle portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians (see https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st...). It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.
In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive.
-- ilamont Reply - I disagree with this assessment on many levels, but I think the most important challenge I can make is to the idea that Brewster Kahle is a rogue actor, who in some sense mis-interpreted the mission and strategy of the Internet Archive.
For those of you who are just learning that name from this lawsuit, here's his wikipedia page:
https://en.wikipedia.org/wiki/Brewster_Kahle
Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws.
We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle.
So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism.
So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas.
If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done.
So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist.
That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done.
But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".
-- dannyobrien Reply - > In his many interviews with U.S. media, he portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians. It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.
If IA had won, IA would be hailed as a cultural hero. They hit and they missed. Claiming Brewster Kahle is against "the people who work very hard to bring new books into being" is unfair. The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years, the copyright will probably be extended again.
-- teruakohatu Reply - I agree with you about copyright, but the fact is that the IA never had a chance and we knew it years ago.
The top comment on HN a week after their launch of the EL is critical [0], right at the moment when HN would be most expected to rally to their defense. By the time the lawsuit was actually starting to take shape most commenters had become very concerned for the fate of the IA [1]. This is on a forum that reliably champions freedom of information, but most of us knew even at the time that what they'd done was extremely unlikely to pass muster.
The IA was never going to be hailed as a cultural hero because they stood no chance, and they are too valuable for other, unrelated reasons to make themselves a martyr. This never should have happened under the same legal entity as the web archive.
[0] https://news.ycombinator.com/item?id=22731472
[1] https://news.ycombinator.com/item?id=23485182
-- lolinder Reply - outside of the content of of the comment, top comment doesn't necessarily mean the most held opinion.
Especially if a comment is thoughtfully written, contains multiple aspects and might just get upvotes for reasonably looking at both sides like in this thread. Being thoughtful, mindful, respecting and trying to not see something in black and white can get upvotes just for being like that. And that's just one tiny aspect of why top comment isn't necessarily the most popular argument. Timing (resulting in more views and possibly upvotes) and other facotrs all play a role (not sure how much this is mitigated by the ranking algorithm.
-- alexhektor Reply - That comment was about the Emergency Library though, not lending in general.
-- ricardobeat Reply - Ditto. Worth also noting is that IA lost the case by summary judgement. This usually means that the legal matter was so clear that the judge didn't even see a reason to start a trial. This judgement has now been confirmed on appeal. Just about any lawyer could have probably told them this was the inevitable outcome had they listened.
I personally have donated previously to IA but now it frankly disgusts me that the project's current management has for the last few years had its focus on fighting windmills in court instead of their core mission - preserving our digital history. Hard to think I would ever donate to them again unless there's a change in leadership after this fiasco.
-- vesinisa Reply - I think one has to be honest and realize that the desire of digital preservation stands in conflict with present day laws.
-- the_mitsuhiko Reply - Yes, but this case was not about digital presevation but lending out scanned traditional books without proper controls, presented as some sort of a social welfare project. Choose your battles.
-- vesinisa Reply - Do you think any book lent out by the archive would have turned into a sale?
It just didn’t materially hurt anyone, and it made a lot of people happy.
I think it was great, and while, sure, the battle was probably lost from the beginning, I like it when people challenge existing conventions. I’ve never stopped donating.
-- Aeolun Reply - > lending out scanned traditional books without proper controls, presented as some sort of a social welfare project. Choose your battles
Present a better battle. I can't think of one - just that, enlarged in other fields. The battle against ignorance is the only one battle. Hail to the battle.
-- mdp2021 Reply - What's the point of having digital preservation if noone can read the archives ? Digital access make sense, it's the logical conclusion to what IA does
-- rakoo Reply - But that's not what this case was about. Throughout the trial they have been allowed to provide continued digital access to the scanned books, granted they operate like a library (each borrowed book is backed by a physical copy.) The case was launched when during the Covid-19 pandemic they removed the limitations under the veil of "National Emergency Library":
https://blog.archive.org/2020/03/30/internet-archive-respond...
This seemed already at the time completely counter-productive and unnecessary step as it basically forced the publishers to react because it made IA's digital lending indistinguishable from casual e-book piracy.
They have now created a legal precedent that, in addition to finding the "National Emergency Library" illegal, makes the controlled lending they implemented previously illegal. Ever since the district court ruling they have been able to continue digital lending only by negotiating compensation terms with the publishers.
So, instead of expanding everyone's access to the digital archives, they have managed to indefinitely limit it by creating a restricting legal precedent. This was the inevitable outcome of "National Emergency Library" and they knew or should have known it.
-- vesinisa Reply - Both copyright protection and fair use exceptions have valid but contradictory “logical conclusions” that require practical considerations, wisdom and negotiated compromise to balance.
Anyone going all in on either side is not on the side of maximizing access, which legitimately depends on maximizing the production of things to access.
Anyone making a crusade of only one side, without collaborating with the other, will damage both.
-- Nevermark Reply - In a controlled manner in line with existing laws, yes. The law is still the law, even though the law may not be what you or I would like it to be.
-- SllX Reply - This isn’t about access to the archives. It’s about IA giving away books in violation of a specific agreement they made with authors. The archives are legally nebulous, but the written works are clear cut obviously illegal.
-- dmonitor Reply - You approach this from a perspective of realism. The law is what it is and IA is wrong according to the plain interpretation of the law. Except that's not how everybody lives. Some people do what they believe is right regardless of the consequences. They will fight fights they are guaranteed to lose. Not because it makes sense but because that's who they are. The people who get mad that idealists fight losing battles tend not to be pragmatic fighters for change but people who will never fight at all because "it's just not worth it" or "the risk/reward doesn't make sense". Idealism doesn't make rational sense. Idealists mostly just lose. But the world still needs people who are not motivated by pragmatic self-interest.
Your disgust is misplaced. Your disgust should be reserved for those who exploit and hurt others. Not for idealists who fight against impossible odds. Especially when the cause (challenging how copyright law works) is one you support.
-- gizmo Reply - > Your disgust is misplaced. Your disgust should be reserved for those who exploit and hurt others. Not for idealists who fight against impossible odds. Especially when the cause (challenging how copyright law works) is one you support.
I don't think so. IA is a valuable resource for the Wayback Machine and other endeavors which are far more seated in fair use or preservation. Choosing to sacrifice the rest of IA for a grandiose or idealized vision of how the world should work is a betrayal of those who donate to IA in hopes of funding the much more tangible goal. If he wanted to take the stance he took, he should have spun the library component out of IA and served it as a separate legal entity to take on that risk.
Maybe the community trust in IA has been misplaced. The mission on their website clearly says they want to serve "All Knowledge" but I'm not alone in thinking it would be best for them to narrow their scope to just internet-related things, and specifically, things that aren't served by other archive or library sources.
IA is currently used to host and distribute large quantities of software, games, and other media in a quasi-legal mindset that is truly not something that is easily justified. Is having every Xbox 360 ISO publicly available for download on IA really serving the same mission as archiving all of the random blogs people have written on the internet? Is serving in-copyright published books?
I think the problem is that IA has multiple missions that all compete, and broadly, people assumed that they would act in a way that wouldn't jeopardize the rest of the archive.
-- Shank Reply - >I personally have donated previously to IA but now it frankly disgusts me that the project's current management has for the last few years had its focus on fighting windmills in court instead of their core mission - preserving our digital history.
I've never donated to them and figured it was the right choice after they started excluding websites from the WayBackMachine - the most vocal case being kiwifarms [1], where they supposedly did so after intervention of a family member of some higher-up [allegedly].
EDIT - as I remembered, the list of excluded site is a LOT larger [2], with a lot of them simply being removed on request. On one hand I understand their choice in this matter, on another - you can willingly be excluded and potentially hide archival stuff of importance...
[1] https://www.theverge.com/2022/9/7/23341051/kiwi-farms-intern...
[2] https://wiki.archiveteam.org/index.php?title=List_of_website...
-- 71bw Reply - You make a good point about the exclusion of sites that probably deserve to be in the Wayback Machine. Would you support a complementary archive that took snaps of the excluded websites?
Does anyone know of one or want to set one up?
(To be clear, it's not that I'm a big fan of Kiwifarms or anything, but Byuu's tragic story is enough for me to think that the site has significant cultural and historical value, regardless of its ethical orientation.)
-- Y_Y Reply - Archive.is has a donation page set up on buymeacoffee [1]. I prefer to use them over web.archive.org.
>Would you support a complementary archive that took snaps of the excluded websites?
Now that I have looked at it, I likely will. I never was one to donate my money to anybody (especially with no income...), but now being employed I believe it's only fair to give them a little bit here and there for them to keep afloat.
>To be clear, it's not that I'm a big fan of Kiwifarms or anything
Neither am I. I just believe that an archive shouldn't be biased - and should keep all stuff up as long as it isn't strictly illegal, eg. CSAM or piracy. This is a blurry line though - I myself would like to be able to check out a hypothetical neo-Nazi group's website after they are all arrested for doing X to check what its contents looked like - but I am definitely in a minority here. So, essentially...
>the site has significant cultural and historical value, regardless of its ethical orientation.
Significant can be discussed, but I see it as a very subjective measure.[1] https://buymeacoffee.com/archive.today
-- 71bw Reply - The further you take a federal case the more precedent you create. The infinitesimal odds IA seemed to have at winning this case have to be weighed against the precedent they have created that may bind on future controlled digital lending cases with better facts. What IA did here wasn't costless.
-- tptacek Reply - I don't think losing controlled digital lending is such a big loss. It was a clever workaround on shaky ground that only survived for the same reason that you stated - no one wants to create precedent. On principle, this was a shot worth taking. I can see a parallel with scihub, where they have actually brought about a cultural change in scientific publishing. Libraries aren't agreeing to closed publishing, ACM is going open access, etc.
-- bubblethink Reply - > The further you take a federal case the more precedent you create.
Not really. This put a huge chilling effect on real attempts at CDL, which IA was not.
-- matwood Reply - I think we agree.
-- tptacek Reply - > future controlled digital lending cases with better facts.
Was anyone else doing anything? Or standing ready to do anything?
-- creer Reply - I don't know, but anybody who wasn't doing anything and wasn't standing to do anything was more valuable to digital rights than the people who appealed this case to the 2nd Circuit, in that none of them actually damaged digital rights.
-- tptacek Reply - Sure, but that's judging in hindsight. Then again, everyone here was saying how dumb a move this was before the trial even started, so...
The payoff for winning would have been massive, but if the IA shuts down because of this, so will the cost for losing.
-- stavros Reply - 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."
-- tptacek Reply - > 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.
-- ricardobeat Reply - 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)
-- trustno2 Reply - 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.
-- mkesper Reply - I don't know. From the point of view of the appeal and mechanical precedent specifically, maybe, maybe not. At first read, the decision rationale seems somewhat measured and interesting - it doesn't just say "Declined". And meanwhile, IA kept the issue present and discussed and with some attempt at doing something different - even in the appeal.
-- creer Reply - Fantastic point.
-- polynomial Reply - Except that IA is a non profit with a specific set of goals. Not only that but by the very nature of said goals (amongst others, preservation and archival of knowledge), they have to be even more prudent and have stability as one of their most important goals imo. Like, every goal they have becomes completely impossible to achieve without a very stable, long term outlook. "Hitting and missing" is usually fine, but it's an attitude that is more reminiscent of wallstreetbets than a serious knowledge repository that aims to preserve everything they can for at least a few generations.
To push the wallstreetbets analogy further, a hedge fund that bets on something risky and loses big is fine. But you don't just "hit and miss" at a large scale when you are in charge of trillions in retirement/pension funds. It just should not be part of the thought process in the first place, it's the completely wrong mindset.
Not that there's no room for activism , but it should be delegated to someone else or by supporting another group or organization that could take the fight and have much less to lose.
-- mardifoufs Reply - The Internet Archive should probably have, granting access to the data in the archive, as a core goal and calling that activism is bizarre to me.
-- protocolture Reply - I don't think it's quite that simple.
I can't just scrape nytimes.com and re-host it on my own website legally - that's clear copyright infringement. Google news quoting article excerpts was legally controversial, as was their book search function, and their archive option.
I always assumed website owners were just sorta turning a blind eye to archive.org because (a) it's slow and (b) it doesn't get indexed in google
-- michaelt Reply - This wasn't a case of the estates of dead authors trying to hold onto rights. Working authors were actively being harmed by the activities of the IA through the CDL. Working authors were met with refusals to meet to discuss this issue.
I don't think that characterization of Kahle is unfair at all. His position was unreasonable, determined to be illegal, and damaging to people who depend on copyright to license their work.
-- doublescoop Reply - How was the CDL hurting working authors? A library bought the book, paying the publisher and the author. The IA scanned the book for digital lending, this digital copy could only be checked out by one person and only when the physical book was not also checked out.
I understand the court decided this wasn't okay. That aside, how was it hurting working authors?
-- cmiles74 Reply - The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers.
It also discusses that there is a very good reason why digital libraries don't typically get to have perpetual rights to a work at the retail (or used) price for a print book. Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. The ruling points out that publishers originally sold ebooks to libraries at the same pricing as print books, but abandoned the practice because they discovered that it was not financially sustainable.
And that's ultimately where the harm comes in. The IA is trying to create a loophole that subverts the income stream of all the people who work on a book by offering derivative works - which are never fair use; fair use is for transformative works - without paying the market's customary price for acquiring rights to create and distribute derivative works.
(As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers".)
-- mumblemumble Reply - > Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks.
As someone who understands the ruling and why IA lost completely, I still hate this argument, because it gets the history backwards. When first sale was put into (case)law, ebooks didn't exist. First sale doesn't exist because "oh, well, the book wears out eventually". It exists because you have an ownership interest in that copy of the book and copyright law has to respect your physical ownership of that property. Once you have sold a copy, your rights as a copyright owner are exhausted.
With digital distribution, the law decided that, no, there is no rights exhaustion whatsoever. And this is mainly because the technology was made after the law was horrifically unbalanced (or re-balanced) in favor of large publishers. CDL absolutely has no leg to stand on in the courts, but it is the sort of thing that would make sense as the legal basis for a new rights exhaustion regime that was properly legislated in Congress.
> As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers".
I've talked about the habit of copyright reformists / abolitionists ignoring the "creative working class" in the past. The headline artist on a work is most likely to be able to survive off non-royalty income because they have social capital that the creative working class does not. On the other hand, publishing firms don't give a shit about the creative working class either! A lot of media companies are run by people who think generative AI is going to let them eliminate entire classes of creative labor and replace it with ChatGPT prompts.
I'm not entirely sure referencing the opinions of headline artists helps either. In contrast to (but not negating) what you've said, I've heard authors complain endlessly about publishers, too. Things like, oh, we don't want to fund the third book in your trilogy, but we also aren't going to let you trip the rights reversion clause in your contract, so you just can't finish the story. Shit like that. Publishers' valuations are based at least in part on their total IP catalog, so a work they don't want to touch anymore is worth more to them dead than alive.
-- kmeisthax Reply - "the law decided that, no, there is no rights exhaustion whatsoever"
Ultimately, the law will either have to change to be fairer and recognize the buyer's investment or digital copying (piracy) will overwhelm it. It's not if but when (technology almost makes that axiomatic).
This will not happen immediately but as US influence in the world declines other fairer paradigms will emerge. As we've seen already, probably about one third of the planet's population pays little heed of copyright law, or it does so in name only—and that number will only increase with time (and as copying tech improves even further).
The US and Western countries have a choice, be fairer and less greedy or suffer the consequences.
-- hilbert42 Reply - IANAL but I don't think the work is legally a derivative any more than a JPEG of the Mona Lisa is. In US law those are the same for copyright. MS Word vs PDF shouldn't matter so neither should this.
-- wbl Reply - The ruling's section on transformativeness explains the distinction. Note that "derivative works" under US copyright law works differently from how it gets defined in typical open source licenses.
My understanding is that, for the purposes of determining fair use, a derivative work is substantially the same thing but in a different format. Transformative work must involve significant additional creative contribution "Changing the medium of a work is a derivative use rather than a transformative one." They cite previous case law that holds repackaging a print book as an e-book as a "paradigmatic example of a derivative work." The law also offers some paradigmatic examples of transformative work, such as criticism, commentary and scholarship.
Based on all of that, I would guess that, for the purposes of copyright law, a JPEG of a painting is absolutely a derivative work and not a transformative one.
-- mumblemumble Reply - Just to be clear: works that are transformative are a subset of derivative works. They're all derivative works.
-- tptacek Reply - The only way an ebook of a novel is not derivative in the same way a JPEG is not derivative of the Mona Lisa is if we are talking about the author's original handwritten version that just came up for auction
on edit: actually I also think that a JPEG of the Mona Lisa is derivative, but just noting that the value we ascribe to the Mona Lisa is something like the concept of Mana for art https://medium.com/luminasticity/art-as-a-tool-for-storing-m...
-- bryanrasmussen Reply - >The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers.
The question was "how is this hurting authors" and your reply is to carry water for publishers?
-- asadotzler Reply - as lousy and inefficient a system as the one we mainly have is, as a theoretical rule in this system authors get some share of the money that goes to publishers.
-- bryanrasmussen Reply - From TFA:
> However, the Internet Archive expanded its library project during the covid-19 pandemic. It launched the National Emergency Library, allowing an unlimited number of people to access the same copies of ebooks. That’s when the publishers banded together to file the lawsuit, targeting both online libraries.
The digital copy could be checked out by many people at the same time.
-- Lx1oG-AWb6h_ZG0 Reply - NEL was a brief deviation from the usual CDL one-borrower-at-a-time system. Parent asked how CDL, not NEL, hurt authors.
-- s-video Reply - The pandemic lending is a different thing, it's not "CDL".
-- cmiles74 Reply - Maybe not the CDL, but the "national emergency library" that ignored the one-book-per-person limit definitely went too far.
-- colejohnson66 Reply - This particular ruling deals with the CDL.
-- cmiles74 Reply - It deals with both, right? Publishers sued over the NEL.
-- tptacek Reply - Copying text out of the PDF from my phone is not fun! The gist is that since the CDL isn't okay then they don't really need to deal with NEL as it's predicated on the legality of the CDL (pages 15-16).
The NEL gets a couple of sentences, the bulk of the ruling is about the CDL
-- cmiles74 Reply - Wasn't NEL the basis of the original suit?
-- tptacek Reply - Yes! The U.S. Court of Appeals upheld the prior 2023 ruling against IA, the case stemming from the IA's National Emergency Library (NEL) initiative during the COVID-19 pandemic, which allowed users to access digitized books without the usual lending caps.
This prompted the lawsuit from several major publishers, who argued that this violated copyright law.
The appeals court rejected the IA's argument that its activities fell under the "fair use" doctrine, specifically noting that the IA digital library acted as a substitute for original books, depriving publishers and authors of revenue.
While the court acknowledged that the Internet Archive's activities were non-commercial in nature, it still concluded that the wide availability of digitized books due to unregulated replication harmed the market for the original works.
This decision has significant implications for the IA’s future operations, potentially limiting its ability to continue its broad digitization efforts without publisher consent.
The ruling reinforces the legal rights of publishers and authors to control the reproduction and distribution of their works, even in digital formats.
The Internet Archive has few remaining legal options, with the Supreme Court being one of its last possible avenues for appeal.
Meanwhile, the organization faces additional lawsuits related to its music digitization efforts, those litigations are ongoing.
The ruling today highlights a broader conflict between the rights of creators and the push for wider public access to information, with the court siding firmly with the former. The case sets a strong precedent for how copyright law is applied to digital libraries in the U.S. moving forward.
-- Teknomancer Reply - No. The lawsuit was over the CDL, the NEL was barely mentioned in the judgment or really the arguments.
If it was over the NEL, the case would have been over ~4 years ago when they shut down the NEL.
-- boomboomsubban Reply - If you read the original ruling, IA lost control of the physical book so they weren't actually doing CDL.
This is why this case was so frustrating. In order to challenge long standing thought, you need to build an airtight case. Lapses like the above and then steering users to buying used copies from BWB shows IA was not ready for a case.
-- matwood Reply - Because other libraries have licensing agreements that benefit authors on a different basis than "you sold one book to one library".
You may argue that that shouldn't be the paradigm, but one library unilaterally changing it denies the authors their say on the change, either through licensing or legislation.
-- healsdata Reply - With physical books the library doesn't need to pay anything to lend it; with digital books it has to pay for every view. Why is it so? Shouldn't the buyers of digital books have the same rights, i.e. the right to re-sell or lend it?
As for authors, nothing changes here: libraries lent their physical books without paying before.
-- codedokode Reply - The difference between physical books and digital books is apparently wear
https://news.ycombinator.com/item?id=41452031
-- riffraff Reply - It is worth noting this is a US only oddity.
In almost every other country in the world libraries do pay a royalty to lend books.
It's notable that the IA service was not geofiltered to the US only.
-- Mindwipe Reply - Which benefits? Support your claims.
-- asadotzler Reply - > one library unilaterally changing it denies the authors their say on the change
I mean, sure, but ~270 congressmen declaring it would also change it, and it would be viewed as legitimate. Quite probably against the same level of protest.
The amount of say the authors have doesn't actually seem to impact legitimacy much. That only seems to vary with the amount of power the person declaring the change has.
-- Kamq Reply
-- Reply- I was looking for a clip from a trailer for a film that is available on physical media, streaming, and was in cinemas two years ago.
IA had the whole film online as bluray quality rip.
What's the difference between the IA and Kim Dotcom at that point?
-- rodgerd Reply - You'll also have to ask what's the difference between Google Drive (or any other online file store) and IA here though. I've found plenty of complete copyright works on Google Drive.
Do IA respond to removal requests? Did IA staff upload that film?
For that, Google Books took works still in copyright and made copies for commercial purposes, they somehow were allowed.
The difference with Kim Dotcom is possibly that he sold (!) more movies through his activities.
-- pbhjpbhj Reply - I'd say the profit motive.
You could argue that donations amount to profit, but that's a line I'd be afraid to cross.
-- klez Reply - >What's the difference between the IA and Kim Dotcom at that point?
None. They have, for a long time now, become a good place for outright piracy - both for downloaders and uploaders. It's nice to have such easy access to perfect DVDrips of GTA: SA v1.0 US, but... definitely NOT legal.
-- 71bw Reply - It's legal to download if you own a copy isn't it? In USA, I mean?
-- pbhjpbhj Reply - > this digital copy could only be checked out by one person and only when the physical book was not also checked out
Even if that were the case I don’t think it’s acceptable.
Physical used goods have limitations on transfer rate. If you want a used book you have to go to the store. Or have it shipped across the country.
I adamantly oppose a global digital pool with instantaneous transfers. In that world you never need to sell more than peak concurrent users. If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food.
The same argument applies to “used” digital movies and games. It’s nonsense.
-- forrestthewoods Reply - This is kind of a stretch, the Internet Archives book lending program under the CDL was not like a free Amazon. Reading software is limited and not great. Check out their website for details.
https://help.archive.org/help/borrowing-from-the-lending-lib...
IMHO, people who could afford the book are unlikely to have the patience to work through this process. Indeed, downloading from a pirate site would offer a lot more flexibility for the reader.
-- cmiles74 Reply - > If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food.
That is precisely the agreement that existing libraries have with publishers now. The digital copy that they buy to lend out comes with restrictions on how many copies can be lent at a time, and also costs a lot more than just buying one copy of the book.
-- mixologic Reply - That's certainly not the license that Internet Archive paid for!
If we want media licenses to cost thousands of dollars so they can be loaned out digitally fine. That's something that can be fairly negotiated.
What I oppose is a regular off the shelf purchase being used for unlimited, instantaneous digital rentals. That's disastrously terrible idea.
-- forrestthewoods Reply - Then find a lawsuit that specifically goes against the instantaneous part, because a ruling that says "no lending at all" is just awful.
-- Dylan16807 Reply
-- Reply- The word “lending” doesn’t even make sense with digital goods. Nothing tangible is being lent or borrowed. Another perfect copy is being allowed to be made. Ironically it might not even be the same copy! Someone “borrowing” a digital good might download a copy of a new version or in a different language.
-- forrestthewoods Reply - The idea is to impose the restrictions of physical goods onto the digital one.
Your idea is to eliminate the very concept of a library where ebooks are concerned.
You may want to rethink your argument.
-- rockskon Reply - > The idea is to impose the restrictions of physical goods onto the digital one.
You know how some people think rent control is a good idea but then every economist explain how it’s actually bad? That’s how I feel about “impose the restrictions of physical goods onto digital”. It’s a terrible idea that has terrible ramification if you follow things to their logical conclusion.
> Your idea is to eliminate the very concept of a library where ebooks are concerned.
Yeah that’s totally fine. The metaphor of an ebook library is bad and illogical.
If you wanted to write digital-first copyright laws you wouldn’t invent a faux library. There’s better solutions out there.
-- forrestthewoods Reply - Access to copies cannot be taken as negatively impacting sales. (On the contrary: access can reveal opportunities.)
-- mdp2021 Reply
-- Reply- You're arguing against a principle that applies to physical libraries (Who also have films btw)...so are physical libraries also nonsense?
Libraries do not serve the interest of publishers (and let's just focus on publishers because if we're being real here, publishers are the ones who stand to lose money - "think of the authors" is just a distraction)... i digress, Libraries exist as a benefit to society, they aren't supposed to neatly fit into absolutist capitalist ideals.
-- tomxor Reply - Also you are allowed to lend your book out to anybody in earth at any time you want. You have bought the book, its yours you can do with it what you want. Burn it, read it, use it as toiletpaper. You arent allowed to republish the book however and earn money on it. Or give it away for free. So the real question here is: what is the definition of publishing. Is the IA publishing?
-- pineaux Reply - > let's just focus on publishers
No. I'm focusing on all media - books, tv, movies, games, etc. It's one set of copyright laws.
> so are physical libraries also nonsense?
Copyright strikes a balance of rights between content creators/owners and content consumers. Physical libraries with the limitations of physical transfer strike are a reasonable balance. A global digital pool with instantaneous and unlimited transfer of non-degradable goods does not strike a reasonable balance.
-- forrestthewoods Reply - > Physical libraries with the limitations of physical transfer strike are a reasonable balance. A global digital pool with instantaneous and unlimited transfer of non-degradable goods does not strike a reasonable balance.
That's a more interesting argument. I think it's valid, abstractly at least.
> Copyright strikes a balance of rights between content creators/owners and content consumers
Originally sought to, perhaps. However copyright has devolved into almost entirely serving the interests of the transferred owner who are overwhelmingly huge publishers.
It makes sense to me that a digital library poses an existential threat to the business model of those large publishers who have gradually moved away from obtaining or encouraging the creation of new original works (the original intention of copyright) to reselling and repackaging existing content over and over again. This is why things like DRM exist, not to prevent piracy, but one one many mechanisms serving this strategy by controlling how ordinary consumers can consume what they "bought", when, where, on what, for how long... so many types of restrictions all serving to extract the maximum economic return for each original piece of work they own - A library completely undermines that strategy, because it necessarily removes most of those mechanisms to function.
-- tomxor Reply - The constitution explicitly states that copyright exists "to promote the progress of science and the useful arts". It's not meant to be about serving the financial interests of content owners except insofar as that also benefits society.
-- thfuran Reply - That's where the brainwashing comes in: good for society === makes rich people richer
-- immibis Reply - What's missing is a requirement that any digitally published works must also be made available as physical media. Content owners can't keep their media out of public libraries by only publishing digitally. Otherwise, libraries need to be able to lend digital works
-- 8note Reply - > If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food.
We have an enormous surplus of content creators and most of the content is not very good. I don't see why we need to structure our economic system such that people must be able to making a living churning out mediocre scifi/romance/mystery novels. If they can, great, but I don't think that's the goal we should be aiming for with copyright. There would still be plenty of novels turned out every year even if copyright did not exist.
> In that world you never need to sell more than peak concurrent users.
That sounds good to me, and I doubt it's really much more than the number of sales now. Many/most people would still buy their own copy anyway, just as they do today when a new book comes out.
Copyright law as structured today is destroying more art than saving it; the number of out-of-print but copyrighted works that are vanishing from human knowledge is astronomical.
-- Amezarak Reply - > I doubt it's really much more than the number of sales now
Yikes. I can not possibly disrespectfully disagree more with everything you said.
Baldur's Gate 3 has sold about 15 million copies. It's peak concurrent user count on Steam is 875,343. A difference of about 20x that will continue to grow as BG3 will sell meaningful copies over the next 10 years.
Limiting sales to peak CCU is categorically insane. And deeply illogical.
And yes I am talking about a video game because the copyright laws for books and games are the same. I would expect the CCU/sales ratio for most successful books to be even larger than that of games which have a much more hyped launch day.
-- forrestthewoods Reply - The people that would borrow the game from the library to play it might at best pirate it if they couldn’t get it from the library. Maybe they’d pay a few bucks tops rather than $60-80. Library game borrowers are not big game buyers in the first place.
Games can and do already get around this anyway via software, if you want to argue the laws should work differently for them then I’m open to that, but I also don’t think games matter enough on a societal scale that we should tolerate current copyright laws in order to protect video game studios over the long tail of disappearing orphaned works.
-- Amezarak Reply - If your goal is to prevent orphaned works there's much better and more targeted changes that could be made to the law! Don't need to throw out the baby with the bathwater.
> Library game borrowers are not big game buyers in the first place.
That's because today there is effectively no such thing as digital game borrowing. If there were then there would be a platform that seamlessly grants and revokes licenses on application startup/shutdown.
People just want things cheaply. Why pay $60 for a game when AmezarakGamesStore lets you play for just $5? People used to buy used discs from GameStop for $55 instead of buying a new copy for $60. Consumers don't care. They justifiably just want to spend the minimum amount of money necessary!
-- forrestthewoods Reply - IA did not charge nor did they get revenue from their users in other ways. They did have a system to handle borrowing and make it cumbersome to read stuff. That is an important distinction.
-- pastage Reply - Steam effectively implemented digital game borrowing years ago. Works just fine.
-- rockskon Reply - This was a case about whether you can do the same things with digital books that you can do with physical ones: re-sell or lend. As I understand, the court decided that you cannot.
-- codedokode Reply - > If IA had won, IA would be hailed as a cultural hero.
You need a little bit more wisdom to change extremely entrenched laws. Simply breaking them has close to zero probability of changing them. This was evident from the start.
IA already had some disputes with rights owners for some of the content they archived. They should have progressively resolved these disputes until some pattern emerged where either mass archival of old movies, TV shows, news videos, video games, and similar was broadly acceptable, or broadly not. IA could have won this. I think most publishers were unwilling to burn money on enforcing their copyrights with products they no longer exploit.
Now the org may not exist to see that day.
-- caseyy Reply - > Simply breaking them has close to zero probability of changing them
Breaking laws and pushing to change them has been the modus operandi for some of tech’s biggest names.
It’d be interesting to see how this might have played out if the IA had the resources that Uber, Airbnb, Google, Facebook, etc have at their disposal.
It’s a sobering look at who actually has power to shape the legal landscape, and which direction it’s likely to be shaped in.
-- haswell Reply - Tech companies have large legal departments which find ways to skirt around existing laws. Where these companies break laws, they almost never challenge them.
When they are prosecuted for breaking laws, they draw attention to orthogonal issues in court proceedings and hearings, delay the process, and involve a lot of other legal strategies. When they are sued by competitors for infringing on other's interests by breaking laws, they counter-sue, often frivolously.
They also lobby.
Breaking laws and then arguing to change them when caught doesn't work and almost no one does it. The cost in money and time to get to higher courts, win (uncertain probability) and create a precedent with a legal department is 10x-1000x the cost of lobbying congress to pass a bill. The big tech corporate lawsuits that go to appeals are so expensive that one could probably straight up bribe influential politicians for less, should that be the path one wished to take. We know stories where people went to higher courts and won to create a precedent because these stories are heroic and rare.
If IA had the resources of Uber it wouldn't have worked out any differently, because it doesn't for Uber when they break laws. For example, around structuring employment as b2b contracting.
These companies have the resources to shape the legal landscape, but not by breaking laws and getting prosecuted for it. That would show very poor decision-making.
Maybe they can become martyrs and win the court of public opinion when their actions are seen as moral. But an org like IA can do much more good than just become a martyr, so this is a very poor decision.
-- caseyy Reply - > because it doesn't for Uber when they break laws
Every company I mentioned has broken laws, paid fines, and subsequently had laws changed in their favor.
I'm not saying it always works, but it works enough of the time that these companies accept it as a cost of doing business and have won. With that said, as pointed out in a different reply, copyright isn't one of the categories in which these companies are winning, so perhaps a questionable comparison by me in the original comment.
I agree this was a poor decision on IA's part, because they just don't have the horsepower to operate this way (not that I endorse this kind of behavior by businesses in the first place).
> These companies have the resources to shape the legal landscape, but not by breaking laws and getting prosecuted for it. That would show very poor decision-making.
Perhaps it's poor decision-making, but that's exactly what's been going on for years now. I suspect this is part of the reason numerous governments have been increasingly anti-tech in recent years.
-- haswell Reply - Exactly. Big companies are buying laws but a normal civil person must adhere and lose possibility for example to own a movie or music. Moreover US law system is extrapolated on other countries but unlawfully (i.e. Bigtech behaves in my country as if it was US and I have no possibility to appeal)
-- p0w3n3d Reply - In Russia similar situation effectively is called an oligarchy. If you have money, you can count on law being on your side despite the case. If companies having a lot of money can change law to be on their side, this is the same.
Becoming a martyr in US law system (precedential) does not make much sense in my honest opinion. Look at Disney Mickey Mouse casus - nothing will change in here
-- p0w3n3d Reply - FWIW Steamboat Willie (the first appearance of Mickey Mouse) is no longer copyrighted.
-- immibis Reply - This isn’t about swinging and missing. This was a project in direct contravention of the copyright laws and agreements they have within the very jurisdiction they operate. It’s like if they saw the ball coming, and in that moment decided baseball is dumb and they they would rather be playing soccer instead so they threw the metaphorical bat down, tried to kick the ball already pitched at them and somehow broke their neck in the process. That shouldn’t have been possible.
-- SllX Reply - > If IA had won, IA would be hailed as a cultural hero
This is ends justifying the means logic. (More accurately, it is showboating.)
Let’s concede for the sake of argument what they wanted to do was unarguably good. It’s still an astronomical long shot. And one with real costs, financial and institutional.
IA incurred those costs, and in the process not only destroyed the library but set a harmful precedent. They threw out the good in pursuit of perfection.
-- JumpCrisscross Reply - I honestly think what IA did was vital for their survival. The IA can not exist without the media library.
I see that many people here do not care about IA and their goal. I am not sure why that is. Maybe HN is filled with people in places were access to books is easy and think that there is an alternative. What IA did was the only sane option, I agree that it was bound to be destroyed the same way Google Books was.
-- pastage Reply - Maybe because other shadow libraries exist. IA could have sneakily donated a copy of their data to one of these openly illegal ventures, instead of being illegal itself.
-- immibis Reply - I wouldn't have hailed them as a hero. While copyright law in the US is insane, what they were doing is equally wrong. I don't want either extreme to prevail.
-- bigstrat2003 Reply - i just want to clarify what you think would be so wrong with a service where you can find a book title, check out a scan of that book -- which has a corresponding physical copy in the real world, a one-to-one mapping to a physical book that is taken out of circulation -- and read it, while others cannot (because only one person can read that scan at a time), and then when you're finished, leave it for another person to read next.
And if that's wrong, is me lending a book to a friend wrong?
-- dannyobrien Reply - > The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years
Note that copyright lasting 50 years after the author's death was already in Berne Convention from 1886. Some (but not all) of these extensions in US were just adaptation of older weaker US copyright to international conventions.
-- zajio1am Reply
-- Reply- [flagged]
-- pessimizer Reply - How would an executive order reverse an appeals court finding? This wasn't a regulatory case.
-- tptacek Reply - > Liberals were spoiled by the Warren Court[...] No, you're going to have to convince people, you can't just wave your degrees and resume around.
Maybe this was true in the 1950s and 60s, but a lot of things enshrined by judicial or executive fiat already have democratic support. ex: https://xkcd.com/1431/ Tearing them down is just an exercise in vetocracy.
I'm not entirely sure how this relates to copyright, though - an aspect of law whose main impact on the average person is YouTube or Facebook saying "no, you can't put 50 year old pop songs on your uploads". Here, the problem isn't a majority opposition that needs to be convinced, it's a majority that doesn't care, or doesn't know how to fight in favor of reform.
IA won't be gone because libraries have limitations on copyright damages. In fact, they already paid damages in a settlement with the publishers in the lawsuit. The only reason why there even is an appeal being talked about is because IA and the publishers both agreed to keep the case live through the appeals court.
-- kmeisthax Reply - [flagged]
-- xhkkffbf Reply - This court ruling was (also) about "CDL" (controlled digital lending), i.e. lending ONE digital copy of a book for each physical book in a library's possession – and only while the physical copy was not lent.
This is as far away from "giving away infinite copies to anyone" as it could be.
-- elaus Reply - While I agree with your point, there is some nuance because transfers can be nearly instantaneous. Physical books have to be transported to and from the library. CDL is as if we all lived in the same library and could shelve/swap books with anyone at any moment and only have to wait when there is a queue.
-- paulryanrogers Reply - That's what the internet does: it makes things that took days or weeks before (nearly-)instantaneous.
If I have 100$, I can lend them to someone (via paypal or whatever), and when I get them back, I can immediately give them out again. I don't have to wait for them to physically go to my place (or a bank) and return cash.If your whole defense hinges on "borrowing books has to have an inherent delay of X hours/days/weeks before they can be given out again", that's a very weak point in today's day and age. It's like saying "sending mails is bad because it is nearly instantaneous, and you don't have to wait for the postman to deliver your letter".
-- dark-star Reply - As an author it means my book is less likely to be purchased directly by impatient library patrons.
-- paulryanrogers Reply - I'd argue it probably doesn't affect it. I have certainly not seen any stats to support that argument. I most certainly would not wait to compete with the rest of the world to read a book once my spot in the queue finally arrived. I would simply buy it.
-- ktallett Reply - hm. That sounds valid on first thought.
On second thought, I don't think the demographic of "people buying (your) books" and "people borrowing (your) books from a library" have that much overlap.
People who borrow books from a library are usually people who either don't want to (or can't) buy all the books they like to read. In that case they are unlikely to buy the book anyway even if they can't find it in the library... OTOH people who love your books or your writings, or people who saw a review and think "I'd like to read that book" will buy it anyway and not read a scanned version of it on their small phone screen.
I mean I understand why authors would love it if libraries didn't exist and everyone had to buy the book to read it, I would probably be in the same boat if I were an author. But the calculation "1 borrowed book = 1 lost sale" is flawed the same way that software companies' "1 warez download = 1 lost sale" is flawed
-- dark-star Reply - Exactly this is what people don't get it was like a lending library not a free give away.
-- shams93 Reply - This is misleading.
The lawsuit was filed when IA decided on it's own to increase the lending limit to 10000 copies of each title.
-- dialup_sounds Reply - A lot of the material I checked out on IA was older books still in copyright, but no longer published. And physical copies get warn over time. Existing knowledge should remain accessible. Publishers do not act in the best interest of authors, they squeeze higher percentages from them just like any other content distribution platform.
-- stroupwaffle Reply - If IA had fought that fight ... dealing with copyright holders who have stopped publishing and made this content unavailable, they would have had more support at every step of the way.
-- Ensorceled Reply - Just for the sake of argument, let us say infinite copies kills all profit drive to make a book. What kind of books still get written? There is an argument for the quality of books being made increasing due to only books that have true passion for the sake of sharing being produced under this system... art for the sake of itself, not for the sake of profit.
If your only determining factor for writing a book is to make and profit off of 'valuable intangibles', then I get the ick, just personally for me.
I'm not arguing for more starving artists, I'm arguing art and capitalism don't mix (see AI for further validation of that position).
-- altruios Reply - I think that argument is pretty naive. The only books that would still get made are those from people privileged enough (money and time) to write books.
You'll get way more ghost-written biographies from celebrities and hot takes from politicians.
-- healsdata Reply - I think writing a book to make money is itself pretty naive. There's already a bit of privilege involved in being able to devote time to writing, and in many cases make attempts for years before getting published to modest revenue.
A lot of people start writing books despite knowing those odds and outcomes.
-- Cpoll Reply - And how many give up after one (if that) when they realize they can't afford the time to do it without enough compensation to reduce hours/replace their day job? Especially when it comes to the boring business side of getting it published and marketed. I can imagine someone writing in their spare time (like any other hobby), but it's much harder to imagine going through all the rest of the process unless they're (a) hoping to make a bit of a living from writing (b) doing it for ego reasons (I guess that's were vanity presses come in)
-- didntcheck Reply - Yep. This isn't a dichotomy between unscrupulous trend chasers vs passionate artistes writing masterpieces just for the love of it. There are plenty of people who would like to make their living selling creative works that they're passionate about, but there's only a finite amount of time in the day, and bills need to be paid. It's fairly well known that being an author or musician is a difficult career, and this is obviously a bad thing for artistic expression. It biases cultural output towards the financially privileged, or those who pander to those who will sponsor them
-- didntcheck Reply - Who are we to decide books made for profit are not good? In fact many of my favorite books were clearly made in an attempt to trade my money for enjoyment, and were better because of that since they were made with the readers satisfaction as a goal.
Plus there are plenty of people who do it for the art even if they get paid, but the payment makes themselves better off and allows them to continue their work.
Like capitalism allows many authors to be able to create their intended art and find an audience, with both artistry and the desire to make money. And it's not like writing a book is easy, so the money is also extra motivation.
-- daedrdev Reply - giving a way copies != lost sales.
-- gosub100 Reply - [flagged]
-- kaimac Reply - You’re taking an extreme and ultimately wrong position.
The the name of this nonsense, the Internet Archive damaged itself, perhaps mortally and damaged the concepts it stands for. Archives should be run by boards of archivists and librarians, not reckless activists.
-- Spooky23 Reply - People keep saying this, but it's unclear that there will be significant damages assessed in this case. 17 USC 504(c)(2) suggests damages will be waived as IA is recognized as a nonprofit and its copying was noncommercial. Likely the real damage here will be to legal precedent.
-- tptacek Reply - A cultural hero by ending book writing as a profession?
What IA was doing wouldn't have done that, but chipping away at authors' copyright takes us further down the road.
Mass indirect piracy via AI being used to flood the Kindle market with slop is bad enough.
I used to believe all the "information wants to be free" stuff until I realized it's another way of saying "labor should be free."
-- api Reply - Labor should not be free, but it should also not serve to establish rent to be paid in perpetuity.
> Mass indirect piracy via AI being used to flood the Kindle market with slop is bad enough.
That just amplified the problem that already existed before LLMs - human-written slop already flooded the Kindle market, and has been flooding paper book market too - and yes, "ending book writing as a profession" is likely the only way for good literature to be made again and be read.
-- TeMPOraL Reply - This is the fallacy of using the pathological case to argue against the normal case. Copyright is in need of reform but without it there is no intellectual labor, or at least no compensation for it.
In the Information Age where everything else is increasingly automated, this eventually converges with all labor being uncompensated since all labor is eventually intellectual in nature if we are sufficiently advanced.
-- api Reply - I question the assertion that copyright is necessary for compensating intellectual labor.
For example, there will always be a need and demand for technical documentation, engineering, legal writing, etc, all of which will and must exists without copyright. A lawyer's product is specific to his client, and bridge engineers' output are a correctly designed bridge.
You can extend it to musicians and artists. A musician get paid to play gigs at wedding, or artists being commissioned to create works for their patrons.
Copyright enables certain business models and change the quantity and quality of the work available, for ill or good but it isn't strictly necessary and may even be detrimental.
-- kiba Reply - So a musician who writes great original music that a large number of people want copies of so they can listen to it whenever they want should spend much of their time playing gigs and weddings instead of spending it writing more new music?
-- tzs Reply - That's what they already do, if you add concerts to the mix. Their publisher already takes approximately all the money from selling copies anyway. And that's who the copyright is really protecting.
Also: a musician who writes great original music should keep writing great original music, instead of forever charging rent on the music they already wrote.
-- TeMPOraL Reply - I didn't say anything about a musician should be doing X or Y.
I only question that copyright is necessary to make a living. A musician can teach people how to play music, for example.
-- kiba Reply - The idea that copyright is necessary for this is ridiculous: copyright is necessary so that publishers and other middlemen can sell copies of their catalog, often with no more than a pittance to the artist. I’ve talked to a bunch of published authors who spent years of hard work on their books who receive no money at all, or an insignificant amount, from ongoing sales.
-- fiddlerwoaroof Reply - What happens without copyright is that hustlers trawl new releases, steal them, rebadge them and maybe run them through a light edit pass using AI, republish them, and take credit and all revenue. A version of that is already happening via AI assisted piracy but without copyright it gets easier because you can steal whole coherent works.
That is until the bottom drops out of even that.
Writing is tough to make a living in because it’s over saturated with content. This makes it worse by taking price to zero. Instead of too many artists chasing too few dollars you have too many artists chasing zero dollars.
This is how you get a future where novels are full of product placements because ads are the last way for artists to eat. I imagine this is what novels would be like in the Idiocracy world, which I realized a while back is not a film covertly about eugenics. It thinks it is but it’s really about the dark side of the Information Age.
For God’s sake look at what happened to the open web where everything was free and copyright was ignored. That would happen to literature.
-- api Reply - > This is how you get a future where novels are full of product placements because ads are the last way for artists to eat.
That's a problem with ads. Advertising as it is today needs to be banned. It's a cancer that corrupts every medium of communications.
> Instead of too many artists chasing too few dollars you have too many artists chasing zero dollars.
Taking the advertising cancer out of consideration, the bottom will drop out of that, and you'll have much fewer writers, and much better writing.
The Information Age killed the business model based on selling copies of creative works. Copyright is a desperate attempt at saving those business models, by legally constraining digital data to behave like physical objects. This is just fighting against the nature of digital data as a medium. It ultimately cannot succeed, it's increasingly costly to maintain, and the side effects are only getting worse.
> For God’s sake look at what happened to the open web where everything was free and copyright was ignored. That would happen to literature.
Yes, it flourished and reached amazing quality levels and very good SNR - that is, until marketing people went on-line too, which is when it all went to shit.
-- TeMPOraL Reply - If this comment from you wasn't copyrighted, would you have written it?
-- immibis Reply - Or at least that's what it amounts to in the information age.
When you get down to it, this is just not a good sphere for deontological ethics.
-- mumblemumble Reply - The correct way is to change laws is to lobby your elected representitive. Blatently breaking them generally doesn't work. It can when the laws are morally repungent, but the majority of the population are never going to find copyright law repungant the same way society found, say segregation, repungent.
Copyright law may suck. The IA's actions were an extremely silly way to fight it, really didn't help anybody, and it was obvious from the get go that it wouldn't.
-- bawolff Reply - IA helped a lot of people, what they did was right. Maybe not legal.
-- pastage Reply - Do you really think the political system is functional?
-- immibis Reply - This is why I stopped donating to IA, and I will not donate until they get new leadership.
I'm a very big supporter of a lot of what IA does, but I feel if I donate, my money is just going to fund more and more legal defenses because Brewster Kahle is being stubborn, and I'm afraid it's going to lead to the entire Archive being shut down.
I've mentioned this before, but there are lots of cases where IA will let you download full video games for the switch that are still being actively sold [1]. The same applies to a lot of movies and TV shows, available via torrents no less.
Before someone gives me a lecture about data harboring laws and fair use, I know that it is technically on the copyright holder to issue takedown requests for infringing material, but even still, I think they'd be smart to be a bit proactive about this. If I know that the Internet Archive is an easy place to get pirated material, then I'm quite confident that their staff does as well. If there's even one employee email that implies that they know about pirated content but didn't bother taking it down, then I think that's grounds for a lawsuit (though I'm not a lawyer).
Much as I respect him for founding IA, I think that Kahle needs to be replaced as a leader.
[1] I'm not going to link it here because I'm not sure HN's policy on potentially legally dubious material, but it is not hard to find.
-- tombert Reply - So the IA should be forked; you can support the fork and people like me Brewster Kahle's original.
People who frequent libraries think CDL at retail prices is just; others that it is an end-run around publisher's rights.
But libraries pay so much for their limited-lending copies! Why isn't there any support for regional or global libraries? Publishers are like a syndicate but there's no opposing union so they run ramshod over the proletariat. Are libraries not good things? Beacons of culture and so forth? The IA clearly can't afford to fund CDL at library rates, but can't it get funding! Why won't the government step in and decree a federal library? Depending on geography, you're local library is probably already funded at the state and federal level.
-- orbisvicis Reply - Same here, long time supporter for many years. Stopped donating after they announced the emergency library thing during covid, it was immediately obvious that they were shooting themselves in the foot with it and the IA was cooked.
-- dandellion Reply - > IA will let you download full video games for the switch that are still being actively sold [1]
I am not seeing that anywhere. I see a file called “My Nintendo Switch games collection” and it is a big jpeg photo of a bookshelf. Is this what you mean?
-- jrflowers Reply - It's harder to find them than I expected, but one search with a result is "super mario wonder nsp". I had the advantage of knowing the format(s) Switch game dumps come in, though, so the average person might not find much.
-- opan Reply - I’m getting a “no results found” response from that search. Maybe it has already been taken down?
-- jrflowers Reply - Did you accidentally search in the Wayback Machine search box instead of in the Internet Archive search box below it? The former searches website snapshots, the latter searches books, films, audio, etc that is in the part of the Internet Archive that contains itemized data.
-- codetrotter Reply - Woops. I am apparently an idiot!
-- jrflowers Reply - Here ya go:
https://archive.org/details/super-mario-bros.-wonder-nspe-sh...
Note to dang and friends: Not condoning piracy or whatever, this is simply to prove a point that Internet Archive hosts and distributes warez with wanton abandon.
-- Dalewyn Reply - I’m kind of curious how this indicates “wanton abandon”
Have you downloaded and checked this file to make sure that it is a playable copy of Super Mario Wonder rather than some other file labeled as such? Have you reported it, and if so how long ago?
-- jrflowers Reply - All you have to do to find warez of all sorts is take a casual browse through their software library.
Most of it is actually supplied by ordinary users unrelated to Internet Archive with little to no oversight or curation. I have no idea how effective reporting is, but I would bet it's not meaningful given the prevailing prevalence of warez.
And yes, I've downloaded some of those warez and they have all worked.
I would advise not white knighting for Internet Archive and instead judge them for what they actually are.
I honestly think the software library is actually a far bigger liability risk than the book piracy scheme. Software developers and publishers are just as vindicative as book authors and publishers if you paint a big enough target on your stupid ass and there's a lot more dollars at play.
-- Dalewyn Reply
-- Reply- Did you verify or report the link to what you claim is a working and playable copy of Super Mario Wonder for Nintendo Switch that you posted here as proof that IA “wantonly distributes warez”?
-- jrflowers Reply - Here you go, 500GB of warez in just one link: https://archive.org/details/pcgames-jp
But wait, there's more!: https://archive.org/details/pcgames-jp-part2
And more!: https://archive.org/details/pcgames-jp-part3 and https://archive.org/details/pcgames-jp-part4
2TB of warez in just four links.
But that was way too easy, I just listed 2TB of mostly Japanese eroge. What about more mainstream stuff?
Presenting the PS1 release of Castlevania - Symphony of the Night, and in fact you can only play it on Internet Archive in the browser: https://archive.org/details/psx_sotn
And there's a lot more PS1 games where that came from: https://archive.org/details/psxgames
You can also enjoy a collection of Game Boy Advance games, nevermind that Nintendo is really draconian about ROMs right?: https://archive.org/details/gba_rpg_pack
But I've only linked to games so far, how about something proper adults would use? Here's Photoshop CS8 and it even comes with a keygen!: https://archive.org/details/photoshop-cs-8.
Actually, you know what? Just going through the latest uploads also proves my point: https://archive.org/search?query=mediatype:software&sort=-pu...
The moral of this digression is this: Internet Archive engages in wanton distribution of warez.
And once again a note to dang and friends: Not condoning piracy, these links are to prove a point.
-- Dalewyn Reply - Are you telling me... that an archive has... archived something?
Calling the cops right now!
-- protocolture Reply - Internet Archive is engaging in redistribution with flagrant disregard for the law, so it is not an archive despite what it says on the tin.
Note that preservation and redistribution are two very different things, there are very specific limitations to redistributing something you don't have explicit licensing or permissions for.
Further reading: https://www.law.cornell.edu/uscode/text/17/108
-- Dalewyn Reply - https://www.google.com/search?q=Super+Mario+Bros.+Wonder+%28...
Second link on the page. How is this warez distributor still online?
-- jquery Reply - I'm heavy into the tracker and open water scenes.
IA is most certainly holding some amount of content that is copyrighted and currently sold like they mentioned. It's just not easy to find.
-- 0x1ch Reply - > IA is most certainly holding some amount of content that is copyrighted and currently sold like they mentioned. It's just not easy to find.
You could say the same of YouTube. As long as they take down copywritten works when asked, they should be fine.
-- jonny_eh Reply - Afaik they do respond to DMCA requests for the individual uploads, and they do more active curation for the collections where only specific user accounts have upload access.
-- N1ckFG Reply - I will admit that I am personally on the fence. I knew for a while that IA was in legal crosshairs and I actually encouraged people to donate to it on this very forum. I am not sure it is fair to stop donations over one miscalculation. Their core mission remains in place and IA is more important to the ecosystem than wikipedia. Not to mention, with this appeal lost, it is not unlikely other entities will try take IA out.
-- A4ET8a8uTh0 Reply - Fair though to hesitate over donating if you believe that your donations are not going to go towards the valueable core mission, and instead be misdirected to ill advised legal crusades.
-- mixologic Reply - > IA will let you download full video games for the switch that are still being actively sold
That's a weak argument that is the same as saying "BitTorrent is bad because you can download illegal stuff" or" file hosters should be banned because I found $illegal_thing on this one"
Yes, a free upload service will get abused. And yes, they are very quick to take these kinds of warez downloads offline when someone notifies them.
-- dark-star Reply - That example isn't the same at all. BitTorrent is just an application for torrenting. It isn't an organization centrally hosting content like IA is. Both Megaupload and Rapidshare are much more similar examples of sites that allowed anonymous distribution from central servers. Megaupload was taken down and Rapidshare ended anonymous file sharing after the Megaupload takedown.
-- TeaBrain Reply - So, this case was not about CDL (Controlled Digital Lending). It was about DL with the "C" removed. Specifically the IA's previous CDL program only lent out one electronic copy at a time per physical copy held, and this case is about a program at beginning of pandemic where they suspended these limits.
There could still be appeals in store for this case, but regardless of the outcome of this case, CDL could still be quite legal (and I think ought to be -- libraries ability to lend out books without publisher permission or license has been a huge gain for society, and I think must be able to continue in the electronic realm; and I think there are good legal arguments for it, on extension of first-sale doctrine to electronic realm and on fair use).
It was not helpful for the case of CDL to have this pretty bad ("uncontrolled digital lending"?) case decided first though, I agree this was not a very strategic move.
-- jrochkind1 Reply - They lost here on both regular CDL and the National Emergency Library "uncontrolled" variant.
The court's decision and conclusion is almost entirely about just regular CDL:
"This appeal presents the following question: is it “fair use” for a nonprofit
organization to scan copyright-protected print books in their entirety and
distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."(emphasis added)
-- zerocrates Reply - Well, that is a disaster. I'll have to read more, I hadn't realized that.
-- jrochkind1 Reply - Yeah the posture and discussion on that is basically "we don't even need to go into the NEL because CDL as a whole isn't fair use."
There are some limiting principles... the lower decision only covered books that were "in print" in eBook form... but the rationale here is quite broad and would easily stretch beyond these specifics. (There's a small amount of analysis related to whether the digitization involved in CDL is "transformative" that rests on official publisher eBooks being available, but there's a strong overall impression that the decision would come out the same way for things not already available digitally.)
-- zerocrates Reply - So what I'm mad at is not that IA did CDL and imperilled thier other work -- it's that instead of doing CDL in a way most likely to result in a successful case if sued, they did it in a reckless not-C way that resulted in a bad case that ruined CDL, where maybe a better case with better facts would not have.
In a more reasonable world we could imagine Congress might pass a law authorizing actual one-copy-per CDL by non-profit libraries. But nobody's going to hold their breath for that.
-- jrochkind1 Reply - Yes, the NEL period surely soured even more what was already going to be a hard case, and gave the publishers greater impetus to bring it, and blunted the negative PR they'd have gotten. I don't know that any CDL that was done on a significant enough scale to be worth the suit was ever going to survive, though.
I've thought since the beginning of this saga that a change in statute would pretty much be needed for CDL or something similar. The idea being to craft something that extends the philosophy or idea of libraries in the face of an increasingly digital world where doing much of anything requires a copy, things are licensed rather than sold, and the first sale doctrine has little application, but I agree with you that such an idea has dim prospects.
-- zerocrates Reply - Also, I lazily assumed differently, because I'm used to appellate courts making it as easy as possible and narrow as possible and not making new law they didn't need to make. I expected since the NEL thing was so blatant and made the decision easier, they'd just make a decision about that. Isn't that how it usually used to work? New era I guess.
But looking at it, maybe this was the way the original suit was set up necessarily, and the lower court decision? OK.
-- jrochkind1 Reply - I agree. IA skipped the C and basically poisoned the well for any future CDL type cases. Very frustrating.
IMO, properly executed CDL had/has a good chance of succeeding.
-- matwood Reply - > the lower decision only covered books that were "in print" in eBook form
This is actually a pretty significant limitation, because so much of what was practically available as CDL was actually out-of-print books that the publishers never bothered to make available for eBooks licensing. It's at least reasonable to expect that the fair-use analysis might tilt the other way for such books - the use is a bit more "transformative" because at least it technically contributes something that the publisher didn't, and the potential of market harm wrt. the copywritten work becomes a lot more speculative.
-- zozbot234 Reply - It's unfortunate that IA did CDL so poorly. In the original findings it came out that they were not controlling the print copy, so they were never really doing CDL. Also, it was super shady to send people to their own used book store from the digital copies. Really just a bad first case for CDL.
-- matwood Reply - If you read the decision (https://ww3.ca2.uscourts.gov/decisions/isysquery/797361df-8d...), it almost entirely focuses on CDL not being legal in general rather than bringing up IA's "National Emergency Library" program. One illustrative quote:
"IA maintains that it delivers each Work “only to one already entitled to view [it]”―i.e., the one person who would be entitled to check out the physical copy of each Work. But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library. 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658 (“We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.”)."
-- ndiddy Reply - Technically true, but people are naive to think the catalyst to file the lawsuit wasn't the NEL.
CDL had been going on for years in a bit of a cold war. Publishers had a lot to lose if they lost CDL and just lived with it. When NEL happened, they decided to use their nukes. They had a rock-solid case against NEL, so might as well use it and try to take out CDL at the same time.
If they lost CDL but won NEL, they would be back where we've started for years.
-- snapetom Reply
-- Reply- No, that's wrong. The original case covered both CDL and the "emergency" lending, but this appeal focused solely on CDL.
-- pavon Reply - I wish people would stop saying they were doing CDL. CDL means being able to lend out a digital copy of a physical book in place of the physical book. The findings in the case showed that IA had lost complete control of the physical book so at that point they were simply breaking copyright. Add in that they steered people to their own used book store, and this case never had a chance.
-- matwood Reply - Well what he did had some value. It showed me that somebody else in that position can share my beliefs about how the system should function.
"[IA] have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society" - to what extent has this had any effect on those services on WayBack machine? Does it not still collect and load a webpage today just as it did in 2015?
The downside loss was low here, the upside was worth it, even if the approach was unlikely to every work. It could lead to change in 100 years. That's important.
-- authorfly Reply - You also forgot the national emergency library thing which only made his position more unworkable with current copyright law.
-- fngjdflmdflg Reply - I think you misunderstand the situation. If you haven't read the lawsuit [1] I suggest you look through it.
Basically, there is an established practice for lending printed books: the library buys a book and lends it to patrons without permission from the copyright owner.
However, publishers believe that digital books are different from physical books and established practice doesn't apply to them; they believe that lending should be made at publishers' terms, to be specific:
- only "academic libraries" (chosen by publishers) may lend digital books
- they may lend them only to the members, for example, only students of the university, not to random people
- library must buy a special "library license", which might have arbitrary price and arbitrary terms
- the license has a limited term: sometimes it is 1-2 years, sometimes it is 26 lendings, after which the library must purchase a new license
- the library must use publishers-approved DRM which might not work on some devices
To enforce these rules publishers use DRM that prevents anyone from buying a digital book and lending it to other person (which was possible with digital books). So, in publishers view new technology means new rules and new opportunities.
The IA found a workaround: they bought physical books, scanned them and lent those digital copies instead of a physical book, provided that only one user can read the same book at the same time. They acted like a library but using remote access to a digital copy. The lender might read the book on IA's website enforcing the terms of use or download a DRM-protected PDF.
The lawsuit is about whether IA actions are legal or not (i.e. if digital books may be lent like physical books). Given that in future there will be less and less physical books, if publishers win, it will mean that libraries will not be able to lend contemporary books at the same terms and costs they lent physical books.
There are several complications: dubious partnerships by IA with libraries to increase the number of lent simultaneously copies; dubious decision to remove limits during COVID pandemic. However, there are facts that play in IA favour: there are precedents when making digital copies was considered legal (by Google Books), and there are a 17 US Code 108 [2] and 109 [3], which allows some exemptions from copyright for libraries and archives.
[1] https://www.documentcloud.org/documents/23723923-hachette-v-...
[2] https://www.law.cornell.edu/uscode/text/17/108
[3] https://www.law.cornell.edu/uscode/text/17/109
-- codedokode Reply - What you describe as lending a digital copy, is making new copies. As a matter of engineering fact, the bytes were copied from one location to another; as a matter of black-letter law, that is making a copy in the sense that it is copyright infringement to do so without a license. That IA 'controlled' it to have only one outstanding copy at a time in hands other than theirs does not make it legal. The carveout saying libraries can make three copies does not cover them making hundreds.
If IA would like five dozen copies to be morally equivalent to one copy as long as they ask each person who received one to swear they deleted it before IA makes another, they can call their congressman and ask them to propose a copyright law amendment. They did not do this, and instead just knowingly violated the law repeatedly. Wailing about how libraries won't exist in the future is silly, because it just takes reforming the law to fix this, but IA seemed to be under the impression that as long as the rules would one day be amended, they could act as though they're already amended that way today.
-- pie_flavor Reply - Let's say we have a device that allows to view book pages over Internet without persistently storing it in any tangible medium (like a memory card). I.e. without "fixing" it permanently where "fixing" is defined in 17 US Code 101. And we use it to view books from a remote server. In this case it seems like we are not making a "copy"; we simply let user watch book stored on our server. So this should be legal?
-- codedokode Reply - As in, is it somehow different when the copy that gets transmitted to the user's computer is encoded images of the pages instead of encoded text of the pages? No. You are using the word 'view' to describe receiving a copy. Again: It doesn't matter whether the UX presents it as a copy. The data factually is copied, and that's all that matters.
-- pie_flavor Reply - That hypothetical device does not exist, it's not relevant here.
-- SAI_Peregrinus Reply - It does exist, it's called FPV arm robot. Drive around the library, take books from shelves, open them, turn pages, read.
Would be curious to try this because the "ebooks don't wear" argument won't apply.
-- alexey-salmin Reply - A live camera feed and IA's page turner exists. Would live streaming the feed work?
-- TrinaryWorksToo Reply - if you wanna get into byte copying, from a legal view, isn't also copying from disk to memory a copy of the book then ?
-- _kidlike Reply - > It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.
Who's this asshole who hates books and authors and the law?
Evidently, reasonable people differ in opinion on this topic. It's fine that you disagree with what Kahle has done, so do I, but I would have found your comment more persuasive and interesting if you didn't reduce your opposition to a caricature.
-- Y_Y Reply - A lot of people say this about Brewster Kahle but nobody else started the Internet Archive. Even on its own people could have fought it on copyright violation grounds.
The reality is that everyone thinks “I would have sold bitcoin at $70k if I bought it for $100” but anyone who would have sold would have sold at $1k. The only guys who actually ride it from $100 to $70k are the true believer types. And you’re not going to convince them that $70k is the top.
It’s the same way. He was always going to push the limit. That’s how we got IA.
Nah, I’m running an ArchiveTeam warrior. I’m team Brewster. Let’s go!
-- renewiltord Reply - Theres all that, but on the other hand, hes doing literally nothing wrong.
-- protocolture Reply - We’ve been here before: you can’t punish someone into being your consumer. Someone who wants your product at the price you offer it will ultimately pay for it. Short sighted business decisions ultimately hurt the industry more than accepting the need to change your business model.
-- Sysreq2 Reply - CDL is how physical libraries work: They buy a book and then lend it out multiple times to multiple people, on a one-in one-out basis, who then do not have to buy the book themselves. They even repair books to avoid purchasing new ones again. Do you think physical libraries harm the people who bring books into being?
-- msla Reply - 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.
-- EarlKing Reply - 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.
-- codedokode Reply - 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.
-- EarlKing Reply - > 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.
-- alexey-salmin Reply - > 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.
-- EarlKing Reply - 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.
-- alexey-salmin Reply - > 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
-- pcthrowaway Reply - 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.”
-- shagie Reply - Google books shows length limited excerpts. That's a huge difference.
-- wbl Reply - Still, under the CDL it is only one book, one person. This is significantly different from a site like Anna's Archive.
-- cmiles74 Reply - 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.
-- EarlKing Reply - 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.
-- cmiles74 Reply - 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.
-- EarlKing Reply - Civil disobedience is breaking the law. Are you suggesting that Rosa Parks should have sat in the back of the bus?
-- kilolima Reply - 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.
-- LunaSea Reply - 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.
-- pie_flavor Reply - 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?
-- EarlKing Reply - 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.
-- codedokode Reply - 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.
-- EarlKing Reply - 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?
-- dannyobrien Reply - 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.
-- jhbadger Reply - 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...
-- jonny_eh Reply - 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.
-- codedokode Reply - 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.
-- pie_flavor Reply - 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.
-- kilolima Reply - 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?
-- Kerrick Reply - 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.
-- tptacek Reply - No, but I suspect the licensing on the ebooks already forbids transferring the physical reader the book is on to another person.
-- kmeisthax Reply - Physical libraries lend actual physical objects. They don't copy anything. This is a copyright case.
-- tptacek Reply - 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.
-- codedokode Reply - 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.
-- tptacek Reply - 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.
-- codedokode Reply - 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.
-- tptacek Reply - 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.
-- codedokode Reply - 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".
-- tptacek Reply - > 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.
-- Dylan16807 Reply - Libraries are not allowed to do what IA did!
-- tptacek Reply - 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.
-- Dylan16807 Reply - No fair use test applies to the lending of physical books, which do not create copies and are not governed by the Copyright Act.
-- tptacek Reply - 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.)
-- Dylan16807 Reply - 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).
-- tptacek Reply - 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?
-- Dylan16807 Reply - 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".
-- tptacek Reply - > 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.)
-- Dylan16807 Reply - 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.
-- tptacek Reply - > 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.
-- Dylan16807 Reply - 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.
-- ipatrol Reply - The effect on authors is the same: A book is circulated multiple times after being bought once.
-- msla Reply - 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!
-- doctorpangloss Reply - 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.
-- tptacek Reply - 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.
-- doctorpangloss Reply - 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.
-- tptacek Reply - > Judges aren't anti-library.
Some are now!
-- doctorpangloss Reply
-- Reply- That's not how the law works. Again: this is a copyright case.
-- tptacek Reply - 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.
-- JoshTriplett Reply - 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!
-- tptacek Reply - 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.
-- JoshTriplett Reply - 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.
-- tptacek Reply - 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).
-- JoshTriplett Reply - 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.
-- tptacek Reply - >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"
-- protocolture Reply - > 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.
-- Ensorceled Reply - But judges and/or legislators might not have fully arrived in the internet age yet?
I would also see a difference whether the activity is for profit (Google earning money with news scraped from Newspapers) and non-profit (IA and physical libraries).
-- usr1106 Reply
-- Reply- > Do you think physical libraries harm the people who bring books into being?
Yes, actually, I do. But the public benefits of libraries outweigh the harm it does to authors. But, the fact that I can buy a book once, and pass it between 50 friends to read feels unfair to the author who effectively makes no money off of the work.
-- IncreasePosts Reply - So, lending a book to a friend is wrong? Or just doing that when your have more then x friends?
I'm genuinely not sure what you're saying here.
-- andybak Reply - If I buy a hammer and then lend it to a friend, is that unfair to the hammer manufacturer?
-- aezart Reply - > hope the organization can survive
Maybe it shouldn’t. There is value in asking if there is a better home for those projects.
-- JumpCrisscross Reply - Morally justified or not, it's really hard to feel bad for someone who stuck their dick in a bear trap when when we all stood there screaming "don't stick your dick in that bear trap" so loudly blood shot from our eye sockets. The Internet Archive doesn't deserve to go down like this, and regardless of his long history of fine efforts, it doesn't deserve to be run by that God damned idiot.
-- causality0 Reply - Not gonna define “CDL”? Ok, “Commercial Drivers License” it is.
-- naikrovek Reply - As far as I can tell (these are all new acronyms to me too), they stand for:
CDL: Controlled Digital Lending
NEL: National Emergency Lending.
-- FridgeSeal Reply - > trumped the rights of authors and publishers
Oh no, won't someone think of the rights of the poor poor publishers :(((
-- davexunit Reply - > trumped the rights of authors and publishers,
the ever expanding rights that nobody voted for and that are passed by and for lobbies?
-- ekianjo Reply - It echos of the debacle at Mozilla. A critical nonprofit captured by an egomaniac ceo who hijacks the organization for grift or their personal crusade.
-- tiahura Reply - If all information wants to and should be free than how can freeing information ever be wrong?
-- kylebenzle Reply - [flagged]
-- doctorpangloss Reply - He just created a really terrible 2nd Circuit precedent. He could have avoided that easily. How was this his job?
-- tptacek Reply - Not setting a terrible precedent is actually the judge's job.
-- thaumasiotes Reply - Not so much? The judge applied the law to the facts. I don't think this is an especially controversial case, legally.
-- tptacek Reply - If that's what you think, then the precedent is neither terrible nor interesting.
-- thaumasiotes Reply - It's bad if you want people to be able to do 1:1 lending of digitized books. It's fine if you don't care. The point is that it didn't need to happen; there was no reason to appeal the case. It was a loser to begin with.
-- tptacek Reply - > It's bad if you want people to be able to do 1:1 lending of digitized books.
How? By your argument, this was already clearly illegal. What did the precedent change?
-- thaumasiotes Reply - The court could instead have heard a case exclusively about books that were under copyright but not available digital in any form, or one in which a library had some existing licensing arrangement that covered the usage imperfectly, which would have made both the transformation and commercial impact fair use tests more complicated. Instead, IA chose to bring this deeply unsympathetic fact pattern to the 2nd Circuit. Now, in that circuit, if some entity did have that more sympathetic fact pattern, it doesn't matter: the finding here was categorical.
I feel like this is not a very complicated point I'm making, but I'm happy to keep expanding on it.
-- tptacek Reply - > The court could instead have heard a case exclusively about books that were under copyright but not available digital in any form, or one in which a library had some existing licensing arrangement that covered the usage imperfectly, which would have made both the transformation and commercial impact fair use tests more complicated. Instead, IA chose to bring this deeply unsympathetic fact pattern to the 2nd Circuit. Now, in that circuit, if some entity did have that more sympathetic fact pattern, it doesn't matter: the finding here was categorical.
How do you see this as different from the claim that the judge(s) did a bad job?
If you think this ruling is just an obvious application of the law to the facts, then you'd get the same result in a different case.
Or, if you think the ruling is contingent on whether a judge approves of the conduct independently of the law, then the court is the party that screwed this up. In particular, the example you highlight, "the finding here was categorical", is completely at the judges' discretion.
(Or are you saying that this ruling is clearly correct, but you wish that the judges would have gotten confused?)
-- thaumasiotes Reply - The Internet Archive should just relocate to a less authoritarian jurisdiction. It would solve the problem.
-- istanbullu Reply - Am I to understand that it’s legal and okay for LLM providers to profit massively from training commercial models on copyrighted works, without the rights holders’ permission - but illegal, and unacceptable, for private individuals to access a digital library?
-- el_jay Reply - Yes, quite straightforwardly. Works may be copyrighted, but all the ideas and stylistic choices which comprise that work generally may not.
That the implications of this idea have the “wrong” winners and losers is a separate matter.
-- AbrahamParangi Reply - Regulators were convinced LLM/AI will increase GDP infinity, while you getting a single book for free creates a hole in VAT budget of 2$.
-- agilob Reply - Very much not a surprise. I think the Internet Archive is providing an invaluable service to humanity in preserving works that would otherwise be lost to time. it is one of the crown jewels of the Internet, doing a job that nobody else is willing to do. But at the same time I know the courts side with publishers pretty much every time and copyright law being such as it is they're totally screwed. The only real question is how many trillions dollars will the judgment be. Preserving history is at odds with the profit motive, and lawmakers care a lot more about the latter than the former.
-- jandrese Reply - Fully agree. With link rot being a huge problem, IA provides an invaluable frame of reference.
-- ricardo81 Reply - >The only real question is how many trillions dollars will the judgment be.
Calling it now. The number will be so big that they will take ownership of IA and privately "license" that data to openai and similar.
-- mhuffman Reply - The data is already available, and IA never "owned" it. Aren't big LLMs already trained on this data?
-- Y_Y Reply - But, beyond this ruling, could Internet Archive just scan the books, store the data and release it to the public at a later time? I am just thinking about the preservation part in your comment.
-- wslh Reply - "A later time" being the after the year 2100 for most of these works. I am not exaggerating. If the author is still alive today their works won't enter the public domain until after you are dead.
One can argue that the Internet Archive would be effectively useless if they strictly followed copyright law.
-- jandrese Reply - I only separated the logic based on your point about preservation. I completely agree that copyright rules are often abused and modified 'a piacere.' The topic of preservation resonated with me because I do amateur research in genealogy, and, for example, if you don’t interview great-grandparents or grandparents, much of that information could become irrecoverable later.
-- wslh Reply - My overall point was "are works actually preserved if they are locked away and inaccessible?" A work that technically exists, but is inaccessible until after your death is effectively lost to you.
-- jandrese Reply - We've also got to think about the actual value of preserving all of these works in a completely indiscriminate manner. Curation is important. Even assuming, for the sake of argument, that we could keep everything forever, actually doing so would ultimately harm the value of the archive, due to Sturgeon's Law. The truth is that the vast majority of cultural output is of only ephemeral value. It's relevant to a place and a time, but not necessarily great enough to also be interesting to people from a different place and a future time.
And I've only got a little bit of time in this life; I'd much rather read a trashy romance novel that was written this year and meant to entertain me than the trashy romance with politics that make me cringe that my mom was reading 50 years ago.
This is why, for example, the Library of Congress doesn't just keep a copy of everything. It's not just a space constraints or storage costs issue; it's a signal-to-noise ratio issue. As Mark Crislip is fond of saying, when you mix apple pie and cow pie it doesn't make the cow pie better, it just makes the apple pie worse.
-- mumblemumble Reply - In the space it takes to store one movie, you can store ten thousand books.
For any published book, the answer of whether it's worth preserving that text is a very solid yes. There's not that much of it, no benefit to filtering.
And do you think future historians won't be very interested in those politics?
-- Dylan16807 Reply - Text that seems a bit more significant imo, alongside the fears of AIs turning into Ouroboruses.
-- monetus Reply - In the meantime, the copyright duration could be shortened.
Or, from another POV, cultural artifacts we dig out from earth millennia after they were buried still preserve something valuable. An entity like IA should think past one lifetime.
-- nine_k Reply - >In the meantime, the copyright duration could be shortened.
There's a better chance of you winning every lottery on Earth twice in a row than copyright terms being shortened in this century.
-- M2Ys4U Reply - you don't know nearly as much about future human history as you claim to
in the last century, birth control became first legal and then almost universal, automobiles became common, britain quit india, colonialism ended in most of the world, totalitarianism was invented, an antisemitic dictator conquered a continent and wiped out many of the world's biggest jewish communities, nuclear weapons were invented, the new york times published an editorial claiming rockets wouldn't work in space, men walked on the moon, communism enveloped a third of the planet, rock stars were invented, the majority of the human population moved to cities, global warming was discovered, the ozone hole was discovered and then solved, most of europe was unified under a single government, computers were invented, turing was bullied to death by the uk government for being gay, gay marriage became legal, women got the vote in most countries, liberal democracy enveloped half the planet, alcohol was legalized in the us, most other recreational drugs were prohibited in most countries, and some other things happened too
the next century will probably be less predictable than the last one
-- kragen Reply - The last 300 years have seen copyright laws being ratcheted up and up and up. I think it's a fairly safe bet to say that trend will continue for the next 75 years, even if it's not inevitable.
-- M2Ys4U Reply - it does seem more likely than not, but that's many orders of magnitude away from the statement you made
-- kragen Reply - Things will get worse before they're get better, but ultimately the publishers will pay dearly for this.
First, the IA should move to a more favorable copyright jurisdiction to preserve the collection.
Second, there's no point fighting the copyright lobby, especially so in the US. We need to build an alternative access to knowledge that bypasses the copyright/ownership of knowledge paradigm.
-- hilbert42 Reply - How about we feed an "AI" with it, like MS does with licensed code? Then we can host that AI and let people use that, without having it output where some text is from, just like MS does for code.
-- zelphirkalt Reply - Right. Then there's the issue of compiled code which is the elephant in the room, as ultimately AI will be able to decompile code with ease. If it cannot, say through encryption, then AI will be able to emulate it.
If I can think this then I'd reckon I'm not alone, the thought must be high on the agenda for MS and like.
The implications are enormous.
-- hilbert42 Reply - It's time to move from tokenisation to training on full range of byte as input then
-- loa_in_ Reply - Right. Just let OpenAI do it. Then it’s allowed. And internally, let the “model” be a 7zip compression algo. Just call it an “LLM”. Courts won’t know the difference. Haha
-- leobg Reply - "Courts won’t know the difference."
Whether or not I'd suggest that if AI makes reverse-engineering easy (and I see no reason why it won't) then users will use it on an individual basis. Detecting the
myriads of breaches would be a nightmare for any law/courts system. Ultimately, the paradigm will have to change.
-- hilbert42 Reply - We could also abolish copyrights for software in general and for everyone, including the tech giants.
-- zelphirkalt Reply - We could, but is that the best alternative?
Despite everything I've said here until now I'm not against creators receiving fair recompense for their efforts. What I'm against is the enormous inequity in copyright law which seriously disadvantages consumers. I believe it is not in the best economic or strategic interests of the nation for such inequity to exist—in fact, I reckon it's very damaging.
Solving the copyright problem won't be easy because it has its roots in a much bigger issue—that of social inequity and inequality.
-- hilbert42 Reply - I'm starting to think this is the case, but the US is a country that enforces its version of copyright with gunboats. Not an easy task to simply find another jurisdiction.
-- ipatrol Reply - "US …copyright with gunboats."
Right, that's why it will get worse. Unfortunately, we're still only in skirmish territory. And it's a battle we have to win.
-- hilbert42 Reply - I think about time for a third opium war. China is manipulating currency through trade restrictions, and the West wants to sell them poison, maybe it's time to sail a carrier group up the Pearl River!
-- Y_Y Reply - The battle that needs to be won is with greedy publishers who don't respect either creators or content consumers.
The copyright/patents issue with China is only part of a much bigger political issue. Gunboat diplomacy isn't the solution, history has shown it's made things worse—China hasn't forgotten the Opium Wars.
-- hilbert42 Reply - > the IA should move to a more favorable copyright jurisdiction
Ask the team at The Pirate Bay or Kim Dotcom how that worked out for them.
The US WILL pursue it's copyright laws to any country on earth.
-- grecy Reply - It's hardly been successful with China (but I'm not advocating it as a solution).
-- hilbert42 Reply - It will to the extent that it is able.
Like for instance, Australia's project Gutenberg tends to get things a few years before the US version because of local legal differences.
-- protocolture Reply - That difference is due to the grandfathering of the old 50-year rule for existing works when the Howard Government brought in the 70-year rule.
-- hilbert42 Reply - > Things will get worse before they're get better, but ultimately the publishers will pay dearly for this.
You seem to imply that IA simply ignoring copyright and essentially becoming a pirating book service is a good thing?
Things HAVE gotten better by them losing their case.
IA has a lot of very important services, but this was just straight up illegal and harmful to authors.
-- iLoveOncall Reply - Key findings and implications:
1. The court rejected IA's fair use defense, finding that its digital lending practices merely substitute for and do not transform the original copyrighted works.
2. IA's activities are likely to cause significant market harm to publishers' e-book and digital licensing businesses, which outweighs any public benefits of expanded access.
3. Allowing widespread unauthorized digital copying and distribution, even by a nonprofit, would undermine the fundamental purpose of copyright law to incentivize creative expression.
4. The ruling highlights the tension between expanding public access to knowledge and preserving authors' and publishers' exclusive rights over their works, which copyright law is meant to balance.
5. The decision sets an important precedent limiting the ability of digital libraries and archives to widely distribute copyrighted works online without permission, even if the intent is to increase public access.
-Kagi Sum
-- jamesholden Reply - This struck me as significant (buried in the opinion's last footnote):
"IA makes a final argument that, even if its Open Libraries project did not qualify as a fair use, we should restrict the injunction to the Open Libraries project and allow IA to continue CDL for books that IA itself owns. In support of that argument, IA argues that the fourth factor analysis would be more favorable if CDL were limited to IA’s own books. In our view, the fair use analysis would not be substantially different if limited to IA’s CDL of the books it owns, and the fourth factor still would count against fair use. So we decline IA’s invitation to narrow the scope of our holding or of the district court’s injunction."
In other words, even if one purchases a print copy of the book, fair use would not allow them to lend a digital copy of the book to one person at a time. Why the court concludes that that "would not be substantially different" is unclear from just this footnote.
-- pcaharrier Reply - It's absurd that the most consequential part of this entire ruling is treated as a literal footnote and given no more due consideration.
-- joe5150 Reply - It's a footnote because it's the most inconsequential part of the ruling. The copyright infringement status of making thousands of unlicensed digital copies is not affected by whether you own a physical copy or not.
-- pie_flavor Reply - This ruling isn't about making thousands of digital copies. They're no longer able to offer even 1 digital copy.
The CDL is where they would buy N physical copies of a book, and then allow N active rentals of the digitally scanned version of that book with a waiting list for when people "return" them. Can't do that anymore.
-- squeaky-clean Reply - The bytes were copied thousands of times. That means they made thousands of copies. It doesn't matter if the UX describes a concept of 'a digital copy' which requires that a new copy not be made until the old copy is deleted; copyright law does not say that this exempts you from the usual rule against making unlicensed copies. What you are thinking of, where you own 'a digital copy' of a book, is owning a license (as you have checked an 'I understand' box about a dozen times), not owning a copy. IA does not have permission to sublicense copies it legally owns (and didn't legally own the digital copies to start with, as their purposes weren't within the §108 carveout).
-- pie_flavor Reply - I still cannot imagine how IA thought that giving unrestricted access to copyrighted books was a good idea. It seemed inevitable that someone would sue them over it.
Honestly, I think that IA's ambivalence towards the use of their website for outright piracy might lead to their collapse, and that's a shame. The Archive can be a really wonderful tool, though I'm not sure that its current management really knows what they're doing.
-- tombert Reply - IA was trying to act like a library: they bought physical books and lent digital scans of them, ensuring that only one user can read one book at a time. So IA's position is that you can treat digital books like physical books, i.e. re-sell them or lend. The only difference is that they don't require you to come to library in person.
Publishers position is that digital books are different from physical; you have no right to re-sell or lend it without publisher's permission. This is what this case is about.
-- codedokode Reply - Nobody complained when IA was lending to one user at a time.
The lawsuits started when they removed that restriction during covid.
-- tredre3 Reply - Techincally the publisheres were already complaining before but they knew that the stakes were really unclear (there is a possibility that they lose and set a precedent against their wishes), but IA realy opened a gaping hole with the emergency lending program.
-- zinekeller Reply
-- Reply- If I can relate this to movies [1], it might be illuminating:
Watching a movie, you normally get a "home viewing" license. That does not give you the right to show it at your business (even if you don't charge money and only 10 people come).
There's also a Public Performance Rights (PPR) license, and I always had to get PPR's because Google lawyers would shut us down otherwise. PPR costs considerably more than a home viewing license.
When I negotiated PPR's, they always asked three questions:
1. How many in the audience?
2. Are you charging money?
3. Are you advertising this outside Google?
If I were a movie theater taking $15 a head from anyone who showed up, my PPR would cost a lot more.
It seems that what IA wants is to use home viewing rights as though they had PPR's.
"No, they don't!" you retort? You might be right, but asking AG to design a license for them would be a lot more friendly than saying, "Hey, this is fair to you, take it!"
Edit: one thing I forgot to add: lawyers always prefer to start with their own draft. We can hypothesize a conversation between IA and AG (which never actually happened):
[IA] Hey, can we use your books? Write us a new agreement.
[AG] OK, that'll take a few months for a first draft. Then we'll negotiate.
[IA] OMG, we don't have all that time.
[AG] Okey-dokey, we'll see you in court.
[1] https://albertcory50.substack.com/p/culture-at-google-part-o...
-- AlbertCory Reply - there is no such thing as a 'home viewing license'; you don't know the basics of us copyright law, despite having negotiated public performance rights licenses. you need a license from the copyright holder (or a fair use defense) when, and only when, you are doing one of the things reserved to the copyright holder under 17 usc §106 https://www.law.cornell.edu/uscode/text/17/106. specifically, 17 usc §106(4) is public performance. 17 usc §106(3) is distribution to the public, which is what the ia was doing
no sort of viewing, home or otherwise, is restricted in any way by the copyright law. you will not find the phrase 'home viewing license' in any us case law about copyright. ('residential viewing license' does occur in cases about 47 usc §605, which is not a copyright law.) you just made it up without having any idea what you're talking about. you should not mislead people about your expertise in that way; it is a bad thing to do
-- kragen Reply - The good part about it was that caused you to comment as well and the information you provided was very enlightening.
-- gavindean90 Reply - thanks :-)
-- kragen Reply - That’s an unnecessarily pedantic comment. The US copyright act gives the copyright owner exclusive rights regarding public performance and it also defines where public starts. Sure, there is no license for home viewing but that’s not really changing anything about the point that OP was making.
-- the_mitsuhiko Reply - it does, because they were adducing a cause of action that doesn't exist in either statute or caselaw. nor was it asserted by the plaintiffs, because that would have gotten their case summarily dismissed. moreover, to believe that it existed, you would have to have a comprehensively incorrect understanding of the legislative and political history of us copyright law. anyone who wants to understand any of the arguments or decisions in the case needs to understand what cause of action is actually being asserted and what the possible alternatives were. reading misleading comments about imaginary legal theories the author just made up makes that more difficult
-- kragen Reply - > Supposedly an employee once filed a ticket saying “please put a pony in my office.” (He didn’t get one, in case you’re wondering, although one hears conflicting stories on this.)
benley did get a pony for a day though had to provide his own fodder. There's a photo of him and Vint Cerf with the pony floating around.
-- bhickey Reply
-- Reply- Internet Archive response blog post: https://blog.archive.org/2024/09/04/internet-archive-respond...
-- ChrisArchitect Reply - They should go for the route of letting people view webcam streams that look at physical book pages. Just need a camera per page or two.
-- Glyptodon Reply - Sounds like a similar concept to Aereo (https://en.wikipedia.org/wiki/Aereo)
> Aereo leased each user an individual antenna and DVR situated in a remote warehouse that they could access over the Internet, allowing subscribers to view live broadcast television and to record the broadcasts for later viewing.
-- gdw2 Reply - For anyone who doesn't know, though, SCOTUS ruled against Aereo, who subsequently closed-up shop, filed for Chapter 11, and eventually were sold to DirectTV.
You can't "clever" around the intent of the law (or around a well-funded lobby). An O'Connor v. Oakhurst Dairy[0] are the exception, not the rule.
(Aside: This is nothing at all like O'Connor v. Oakhurst Dairy-- I just can't resist the urge to cite it. It's too fun.)
[0] https://www.fedbar.org/wp-content/uploads/2018/10/Commentary...
-- EvanAnderson Reply - The trouble is that this all builds from case law established before people could use magic vision portals to exploit efficiencies of scale and centralization.
That's not even addressing the magic of infinite copying-- lets suppose we all agree publishers deserve secondary markets be restricted to physical copies. Then the digital age gives us literal magic portals but the benefits are withheld from society because... they want their money. There were laws protecting that money before so the intent of the law is to protect the money in the new age too. For shame.
-- tpdly Reply - > Then the digital age gives us literal magic portals but the benefits are withheld from society because... they want their money.
I'm so jaded about this now that I just assume things won't change until most of the people born before computers were "mainstream" die. Even then it'll probably take another generation or two for the cultural indoctrination associated with "intellectual property" to die out.
And no change will happen if general purpose computers (and the freedom they offer) are effectively removed from daily life. It seems to be going that way via normalization of walled gardens in the name of "security" and the infuriating argument that the computers everybody carries around (smartphones) somehow aren't actually computers and shouldn't allow for end user freedom.
-- EvanAnderson Reply - https://storage.courtlistener.com/recap/gov.uscourts.ca2.609...
On one hand: the court opinion. On the other, a breaking news tweet from Publisher's Weekly with hundreds of tedious low effort takes ready to melt precious brain cells. Please read the opinion.
-- warmcompress Reply - Reading and understanding the opinion is the way for this one, for a simple reason as I understand it. The judges get to basically make up an opinion about the matter, which could be anything. And they can support basically any opinion using whatever they want, and it can be made to sound ok.
The whole point is that the judges are forming a judgement. It's, like, their opinion on the matter. The judges don't have to find out mathematically what the law says. They're making (case) law, by making an opinion, based on how they feel about it all, trying to be well-informed on the matter and its background, but really just putting down their feeling on it. Here's the most essential thing they wrote IMO:
From Page 2: """Is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."""
They justify it in a series of points. We can disagree with the points all we want, like whether or not it is transformative, or commercial, or all the other things. But at the end of the day, these judges said, nah, we're going to say that we don't think this is fair.
I mean, I can see their point. But this would have been a chance for them to see the point in what the IA was doing and to say, "oh, you know what, that is actually fair in our view". Only, they didn't, it looks like.
I guess the next step is to see if the Supreme Court is interested in weighing in on the topic.
-- realityfactchex Reply - It is ultimately judgment calls by human beings that make the determinations. However, I don't see how you can read this opinion and think that the judges are just making their minds up on the spot. Every single decision point in this opinion goes back to prior cases and either explains why they apply or distinguishes this case from them to explain why they don't.
- It's not like Campbell/Rose-Acuff (2 Live Crew v Roy Orbison, the "Pretty Woman" case) because IA's ebooks are not parodies of the original works. They _are_ the original works.
- It's not like Sony (the Betamax case in which whole-work copying was found fair because it enabled time-shifting), because there's no sufficiently different use that's not supported by the original copy. You read the book, you read the IA scanned copy.
Courts have judgment, but within parameters. The Copyright Act itself spells out four factors for evaluating whether a use is fair, and both courts found that it failed on every factor. The judge can't say, "well, but I still believe that the use should be fair anyway"; that would be an instant reversal and remand, with instructions amounting to "follow what the law says, dummy."
This was never really a close call based on prior cases. Transformative use has almost never been "exactly the same work used exactly the same way, but digital." Cases that have tried to make that argument have failed again and again. The "our enforcement ensures that only one person is using the copy at a time" has been tried before as well, and has consistently failed. Back in 2020, my heart sank when I saw IA's announcement that they were doing this, because I was certain that they would be sued for it, and that they would lose if they were. I can't stress enough how obvious these rulings have been if you expect the courts to do what they ordinarily do-- find similarly in similar cases.
The Supreme Court can discard all that precedent - they've certainly made a habit of that lately - and create new case law, along with an explanation of the way that they evaluate the factors to find that way. They may in fact do so; they've done that a couple of times in recent decades. However, they don't take many cases, and this case is so clearly in line with past cases that it's hard to see why they would take this one.
-- indigovole Reply - >In sum, IA has not met its "burden of proving that the secondary use does
not compete in the relevant market"How does this same thing not apply to physical libraries then? Even if the scope were limited to books IA itself owns (which they still denied anyways), why should one-to-one digital lending be any different than physical in-person library book lending?
-- ranger_danger Reply - The physical object can be passed around without copyright coming into play. Copyright law has special provision for interlibrary loan, and archival copies.
There is nothing in the law that supports making a digital copy and and using technical safeguards to transfer it to exactly one person at a time - except licensing under the exclusive rights of the rightsholder.
Congress could write something into the law to support this kind of digital lending. However, Congress has been largely unable to accomplish anything interesting or innovative for a long time now, outside of a couple of flagship goals for one party or the other. Copyright law hasn't seen a substantial revision since the Act of '75, and ... a few ... things have happened since then. [DMCA added some new provisions for anti-circumvention and for safe harbor, but it didn't add new exemptions that most people care about, or modify the exclusive rights in any way.]
The entertainment/publishing industries have usually gotten what they want in past revisions, but by now the tech industry is pretty strongly on the opposite side. It would be interesting to see what kind of crazy-quilt changes got patched together in a significant revision.
-- indigovole Reply - The rule that allows libraries to work is first-sale doctrine: once you bought a physical book you may re-sell or lend it without permission from copyright owner [1].
However you cannot do this with digital books because DRM doesn't allow that. So IA invented scanning physical books (that are legally bought and not circulated after this) as a countermeasure to allow lending digital books the same way as physical.
So do you side with the publishers who believe that "first-sale doctrine" should not apply to digital books?
Here is a quote from Article 109:
> Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
> (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title ... is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
This allows library to "dispose" the posession of the book as I understand. So why this should not be applied to digital copies?
[1] https://www.law.cornell.edu/uscode/text/17/109
-- codedokode Reply - I'm not sure what you meant by the quote talking about the right to display the copy - again, a material object - publicly. A used book store or record store is allowed to show the book or record for sale. It's not allowed to, say, play the record for a party - that's the performance right - or make a movie out of the book. It's allowed to display the physical object.
-- indigovole Reply - It's not totally clear to me that those are different. For example, if you have a painting or some other flat, static creative work, then public "display" and "performance" are the same. You don't need a positive law to say you can show people a DVD box. Additionally, some works are unique or at least not commodities like a Shrek DVD, in this case how can you let the buyer know what they're buying without letting them watch the DVD or open the book?
-- Y_Y Reply - There's the questions of whether first sale _should_ apply to digital works in the same way it does to physical works, and whether it _does_ apply to physical works under current law.
I'm teetering at the top of a very tall fence on the _should_ question.
Publishers have always been opposed to digital first sale for a very simple reason: fear that their prices will go to zero. Used physical books prices are pennies on the dollar for new book prices, on the basis of the condition/deterioration issue. The quality/condition issue doesn't exist for digital works. If Amazon could offer "used" digital copies of publisher e-books, the customer would be choosing between identical binaries at 10-1 price ratios _at best_. I really don't see any other way that this goes. Sure, capitalism isn't for the weak, yadda yadda, new models, but how's it going to work. Amazon's Kindle Unlimited is an alternate model, but Amazon already has enormous control over publisher fortunes. "Should the current publishers exist" is a really interesting question. I'm just not sure I want to find out by handing all compensated book publishing to Amazon.
So why am I on the fence? Well, I have paid for 2000+ ebooks. I wouldn't mind being able to transfer them to my children without limitation, or to friends. If there were a resale mechanism no more disruptive than used paper books, I would probably have sold some of them already. It's not that I don't appreciate the value or convenience of resale, but that I consider the side effects.
The second question is, "Does current law support digital first sale?" First off, I am not a lawyer, and I'm not giving legal advice. However, the words of the law are pretty damn clear, to be honest, that it does not. You found section 109, which is correct, but you're relying on the colloquial meaning of the word "copy." You need to look up the words "copy" and "phonorecord" in the definitions, section 101, so that you can see that in this law both words refer to _material objects_ in which a work is fixed.
A paper book is a material object. You can sell the book. The buyer owns the physical book - the stack of paper and binding - and can read it.
A CD or DVD is a material object. You can sell the flashy mirror thing. The buyer owns the flashy mirror thing and can listen to the album or play the movie.
An ebook is just not a material object. In most cases, they are not with a single physical object, but licensed as downloads according to fairly restrictive terms. If you have a physical object with a duly licensed ebook on it, you're probably allowed to sell that physical object (unless it's a Cybertruck, I guess.) However, the license on that download is still going to be what controls. Your Kindle has Kindle software tied to your Amazon account that allows you to read the books you've bought, and I'm really pretty certain you can't sell your Amazon account and all your individual access rights.
Various entrepreneurs have tried to convince courts that some variant of "one-copy-at-a-time" digital first sale tech fits under 109, and courts look for the material object and note that it is not there.
So, anyway, the law is not written so that ingenious digital technology that ensures that a digital copy is only possessed by one person at time can fall under first sale. It's written so that physical objects that contain or embody copyright-protected works can be sold.
-- indigovole Reply - Interesting note. Indeed, copy is defined as a material object where the work is "fixed". It looks like it was made intentionally to not let buyers re-sell electronic files.
But there is also a definition of "fixed":
> A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
And definition of "display":
> To “display” a work means to show a copy of it ...
So does it mean that if we have, let's say, a hard drive with legally obtained ebook (a copy fixed in a tangible medium), and somehow transmit the book (show it to somebody) over the Internet from it without "fixing" (permanently storing) then it doesn't fall under "making a copy" or "display" and is perfectly legal? And maybe we can stream music the same way?
I am not a lawyer of course just curious.
-- codedokode Reply - So would it be ok if I stored my ebook on a CD, or printed it? What of I was printing from an online source? I don't think a "material" distinction can be made here between the medium and the message.
-- Y_Y Reply - Ok I didn't think about the fact that a digital scan of a book is technically a copy. So I guess there isn't a good established law on how to handle that, you're right. I was wondering why in the ruling they were even referring to the scanned books as a copy and it just wasn't clicking in my head. Thanks
-- ranger_danger Reply - There is law - its in the carveout and printed above the copiers in a library that stems from https://www.law.cornell.edu/uscode/text/17/108
> The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee—
> is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
> engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
...
> (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
> (2) No reproduction, distribution, display, or performance is authorized under this subsection if—
> (A) the work is subject to normal commercial exploitation;
> (B) a copy or phonorecord of the work can be obtained at a reasonable price; or
> (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
---
I believe that the covering of scanned / copied materials by a library are fairly well covered, and that Internet Achieve stepped clearly beyond that definition.
-- shagie Reply - Physical book lending doesn't involve making copies at all, so copyright law doesn't apply.
That said, some libraries do lend scans of materials and libraries copying materials on microfilm has been done for ages. Interlibrary loans are done frequently with copies. Hell, the Library of Congress does it.
-- Aloisius Reply
-- Reply- I'm not sure I see the problem with one-to-one digital lending modulo the possibility of the reader potentially making copies for essentially free. However, there's a ton of legal precedent for lending out purchased physical copies of things. Certainly there's no precedent for the unlimited lending that triggered the current legal woes. Previously a lot of what the IA didn't really have a legal foundation but mostly slid under the radar because it generally seemed reasonable.
-- ghaff Reply - Because (at least under current law) that's not quite the same as what libraries are doing as explained here: https://news.ycombinator.com/item?id=41448376
-- pcaharrier Reply - I still don't see the difference with one-to-one lending vs physical libraries as long as the archive owns the books.
-- ranger_danger Reply
-- Reply- [flagged]
-- TZubiri Reply - I hope this doesn't bankrupt the Internet Archive (either the legal fees or the case - I don't recall what they're asking for). It would be bad if the Wayback Machine, the biggest internet archivist around, went under, and also all the books, software, et cetera that the Archive hosts. I wonder if there's any way to archive all of the Wayback Machine (82.3 petabytes), or, better yet, all of the Internet Archive (which is, by my count, around 120 petabytes?) Who would have the capability/interest in doing so, ideally without charge?
-- Yawrehto Reply - Shutting down IA altogether seems unlikely at this point (even if legal fees are substantial). They've written before about what the decision means (this appellate court affirmed what the district court did last year) and it doesn't touch things like the Wayback Machine: https://blog.archive.org/2023/08/17/what-the-hachette-v-inte...
-- pcaharrier Reply - Keep a close eye on the inevitable lawsuits that they're going to be up against. Obviously the music publishers are currently trying to kill the Great 78 Project and I expect other industries to pounce. (Especially the gaming and media industries). I can't see the Internet Archive exist in 2-5 years and we need to prepare for the worst case scenario.
https://old.reddit.com/r/DataHoarder/comments/1bswhdj/if_the...Discussion: https://news.ycombinator.com/item?id=39908676
Projects such as Anna's Archive are going to be much more critical than ever.
-- leotravis10 Reply - For wayback machine, are those compressed, deduplicated numbers?
A semi-popular domain can have millions of results on their CDX api, but with https/https duplicated and about 90% of results are error pages or pages with deliberate garbage / LFI attempts in them.
-- stepupmakeup Reply - Deduplication is not trivial. Each scrape is stored in a WARC archive, so you would have to unpack several large files, dedupe, and then pack them back up again. I believe they are at least compressed within each snapshot though.
-- smallerize Reply - > This appeal presents the following question: Is it “fair use” for a
nonprofit organization to scan copyright-protected print books in their
entirety, and distribute those digital copies online, in full, for free, subject to
a one-to-one owned-to-loaned ratio between its print copies and the digital
copies it makes available at any given time, all without authorization from
the copyright-holding publishers or authors? Applying the relevant
provisions of the Copyright Act as well as binding Supreme Court and
Second Circuit precedent, we conclude the answer is no.When the conclusion is so obviously incorrect, we should examine the underlying precedent that leads us to such an erroneous conclusion. This precedent should give us pause. They're restricting a NONPROFITs to distribute legally purchased print media in a way that the publishers don't want.
And this seems to be the justification:
> In addition to selling traditional print books, Publishers collectively invest
millions of dollars in developing new formats and markets suited for the digital
age, including the eBook market.> Here, by contrast, IA’s Free Digital Library offers few efficiencies beyond
those already offered by Publishers’ own eBooks. IA argues that its use is more
efficient because it “replace[s] the burdens of physical transportation with the
benefits of digital technology,” but this ignores the fact that IA’s digital books
compete directly with Publishers’ eBooks―works derivative of the original print
books.This is an assault on free-use, libraries, and collective sharing of knowledge. If I buy a physical book, I can give it to anyone I want because the laws of yore did not see societal benefit to prohibiting this. I'm quite certain that these companies would prohibit the practice, if they could. The law is the only thing protecting the commons.
The argument here is essentially, "these companies are spending millions to distribute their IP digitally, so we should shield them from Open standards that would negatively impact their profits". "Your work isn't transformative, because we've already done a similar transformation". They're wielding a proprietary implementation as a hammer to crush open knowledge. The internet should be a tool to facilitate knowledge-sharing for the betterment of our entire species, not a weapon to stifle knowledge for the sake of corporate profits.
-- Atreiden Reply - We should do a Rome thing, rework the legal code at this point, now that we have the internet. Copyright needs to be abolished or radically altered.
-- altruios Reply - > When the conclusion is so obviously incorrect, we should examine the underlying precedent that leads us to such an erroneous conclusion. This precedent should give us pause. They're restricting a NONPROFITs to distribute legally purchased print media in a way that the publishers don't want.
This is nonsense. They are not distributing "legally purchased print media", they are VERY literally distributing digital copies of the original legally purchased print media.
-- Ensorceled Reply - This is because you cannot buy and then lend an e-book. You can do it with a physical book but you cannot with a digital book due to DRM. IA was trying to work around this and failed. As a result, buyers of digital books cannot enjoy the same rights the buyers of physical books have; it means people have less rights now.
-- codedokode Reply - You do not get to break the law just because you are working around some sort of restriction. The law says what it says and the judge is correct that IA violated it.
-- pie_flavor Reply - c.f. https://ifixit.com/News/54317/section-1201-exemptions-for-20...
Different laws may be in conflict, and you have to resolve it one way or the other. For example if copyright law would prevent you from repairing your device (like you need to put a coprighted image of an Xbox logo on your hard disk for it to be recognised) then your repair right may trump the distribution rights of the copyright owner.
-- Y_Y Reply - How do AI startups get away with copyright violations? To train AI model they need to download copyrighted works (images, videos, music) into their AI cloud, thus creating a "copy" under US Copyright law. Isn't this outright illegal?
There are even datasets, collections of URLs like "common crawl". You cannot legally download them and use without breaking the law.
They cannot get away with "fair use" because they are harming creators income by making generative AI using their works.
But as there are big money I guess the government will make some exception for them.
-- codedokode Reply - This is still an open matter of law.
The core issue is the transformative test in fair use. Is the model sufficiently transformative?
The question of what, if any, impact OpenAI has on the copyright holder's income is yet to be demonstrated in court.
So far, the lawsuits launched by the authors haven't gotten very far. https://www.theguardian.com/books/2024/feb/14/two-openai-boo... https://casetext.com/case/tremblay-v-openai-inc-6
> However, the UCL claim does not lack factual allegations; it lacks a tenable legal theory. See Brown v. Van s Int'l Foods, Inc., No. 22-CV-00001-WHO, 2022 WL 1471454, at *6 (N.D. Cal. May 10, 2022) (“As the defect lies in the legal theory, not the factual allegations, the dismissal is without leave to amend.”). The Court dismisses the UCL claim without leave to amend as amendment would be futile.
> Tremblay v. OpenAI, Inc., 23-cv-03223-AMO, 5 (N.D. Cal. Jul. 30, 2024)
This is only partially dismissed - the unfair competition claim is still open and hasn't been ruled on and is still active and ongoing - https://www.courtlistener.com/docket/67538258/tremblay-v-ope...
-- shagie Reply - But when they download images, music or videos from Internet they are making non-transformative copy.
-- codedokode Reply - I would suggest you argue with the judge that downloading something is making a non-transformative copy of the material.
I believe that, however, is irrelevant to the transformative nature of the end product - the model itself.
I would also encourage you tread Perfect 10 v Google and the appeal ( https://arstechnica.com/tech-policy/2007/05/google-v-perfect... https://www.eff.org/cases/perfect-10-v-google https://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Amazon.com.... )
From Wikipedia:
> The Ninth Circuit did, however, overturn the district court's decision that Google's thumbnail images were unauthorized and infringing copies of Perfect 10's original images. Google's claimed that these images constituted fair use, and the circuit court agreed. This was because they were "highly transformative." The court did not define what size a thumbnail should be but the examples the court cited was only 3% of the size of the original images. Most other major sites use a size not longer than 150 pixels on the long side. Specifically, the court ruled that Google transformed the images from a use of entertainment and artistic expression to one of retrieving information, citing the precedent Kelly v. Arriba Soft Corporation. The court reached this conclusion despite the fact that Perfect 10 was attempting to market thumbnail images for cell phones, with the court quipping that the "potential harm to Perfect 10's market remains hypothetical."
> The court pointed out that Google made available to the public the new and highly beneficial function of "improving access to [pictorial] information on the Internet." This had the effect of recognizing that "search engine technology provides an astoundingly valuable public benefit, which should not be jeopardized just because it might be used in a way that could affect somebody's sales.
If resizing an image to a fraction of the size of the original is sufficiently transformative and useful for a different thing (image search rather than selling thumbnails for cellphone porn) is considered fair use, then direct parallels could be drawn from that ruling to OpenAI's use of copyrighted material being sufficiently transformative and irrespective of someone selling summaries of a copyrighted work.
---
If you believe that OpenAI and other LLMs are infringing and not covered by fair use, it would be helpful if you could write a bit on how they fail at the four tests of fair use described in https://fairuse.stanford.edu/overview/fair-use/four-factors/
-- shagie Reply - The common belief is that copyright covers redistribution, not literal copying. Otherwise, computers and the Internet would not work.
-- CaptainFever Reply - Because they are not distributing the work, which is how the law currently works. And in case you’re not aware, there are many lawsuits filed that suppose this exact claim: that models are not transformative and are thus breaking copyright law.
-- tourmalinetaco Reply - It doesn't matter; before training they download the content for training from Internet and thus make a "copy" which might be illegal.
-- codedokode Reply - This would break all websites. You can't check a license before loading the page.
Generally speaking, when you request a site, barring a compelling reason to believe otherwise, the assumption must be that accessing the content is legal.
-- FeepingCreature Reply How do AI startups get away with copyright violations?
A machine that churns out media slop is a capitalist fever dream. Fat cats have dreamed about stripping individual creators of their creative power for millenia.
-- staplers Reply- If IA still loses after all avenues of appeals are exhauseted, will they be required to delete the archive or will they merely be required to take it offline?
Are private attempts to preserve human knowledge (e.g. IA keeps it offline from public access but continues to archive new works) legal in USA and other major jurisdictions?
-- loongloong Reply - Is there torrent of those books we can distribute?
-- kuon Reply - https://annas-archive.org/torrents#ia
-- jerheinze Reply - That the dumbest thing about this. All these books are available at Library Genesis or Anna's Archive. There was no reason for IA to distribute illegally when others where doing it with much less risk. Way to risk your main mission with no up side.
-- tokai Reply - I agree. Maybe they should split into separate judiciary entities?
-- kuon Reply - Awful news.
Seems like this is the publishers planned approach going forward, nonstop lawsuits to henpeck the IA to death.
-- Devasta Reply - Yep. Not just publishers, almost every copyright holder.
From five months ago, still relevant: https://old.reddit.com/r/DataHoarder/comments/1bswhdj/if_the...
Discussion: https://news.ycombinator.com/item?id=39908676
-- leotravis10 Reply
-- Reply- I don't think this took much henpecking. IA basically didn't have a case, took it to federal court, appealed it, and won themselves the following 2nd Circuit precedent:
"[I]s it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no"
This may be a broad setback to all controlled digital lending. As the saying goes, "play stupid games...".
-- tptacek Reply - >This may be a broad setback to all controlled digital lending. As the saying goes, "play stupid games...".
When I made this criticism before of IA, I was told that that was ridiculous since the publishers had it out for IA before the COVID-19 emergency library. That may or may not have been true, but the publishers did not sue IA despite OpenLibrary existing for years before COVID-19. Publishers didn't pull the trigger because they were afraid of losing. It was a MAD situation, and IA unnecessarily triggered a nuclear war that they lost.
-- TMWNN Reply - Donation link for the archive: https://archive.org/donate
-- preciousoo Reply
-- Reply- This article doesn't mention controlled digital lending at all, what the entire lawsuit was about, and instead spends a significant chunk of the article on the national emergency library, a program that got like a one sentence mention in the judgment.
-- boomboomsubban Reply - I think it was the catalyst for the whole lawsuit though. If they had done just CDL, then I think that the book companies would have just tolerated it.
-- tombert Reply - It wasn't, the book publishers were clearly preparing the lawsuit for years before the NEL.
The logic doesn't even make sense, if their objection was to the NEL they would have sued over that and the lawsuit would have been over four years ago.
-- boomboomsubban Reply - > It wasn't, the book publishers were clearly preparing the lawsuit for years before the NEL.
Even if that were true, they could have still been waiting for something like NEL to start the process, if nothing else to get the narrative on their side.
I don't know, I don't work for a book company.
-- tombert Reply - I'll agree that the NEL was a PR boon for this case, it's turned most of the discourse on this topic into people saying the IA deserved it for something unrelated to the case.
That's a different claim than "book publishers would have tolerated CDL without it."
-- boomboomsubban Reply - Sure, fair enough, they were probably just waiting for the right time to pounce. The NEL was as good a time as any, but it was probably a matter of "when", not "if".
-- tombert Reply - edit too late to actually edit, but this post was about the wired article before the merging.
-- boomboomsubban Reply - Someone has to push the limits to see where they actually are. Now we know.
-- jrockway Reply - We knew. This was a dumb move on IA's part. I support the organization wholeheartedly, but it was a dumb and risky move. (They may be morally correct, but there was little if any doubt that they'd overstepped the legal bounds.)
-- jzb Reply - That's an overly simplistic way to look at this. Depending on the fact pattern you bring to a case, you will get different limits, which then apply to everyone later on regardless of their own fact patterns. IA took just about the worst possible fact pattern all the way to the 2nd Circuit for no discernible reason.
-- tptacek Reply - Now we should fix those limits to be less broken.
-- JoshTriplett Reply - We already knew what those limits were. This accomplished nothing other than endangering the internet archive by committing mass acts of copyright infringement. Ultimately, if he wanted to push the limits and get the law changed through judicial activism, he should've done it in his personal capacity rather than as a policy of the internet archive.
-- EarlKing Reply - I wonder how this ruling could impact all those other proceedings concerning AI training data.
-- Onlyartist9 Reply - At this point, the Internet Archive should consider simply moving to another jurisdiction. Decisions like this are a shame, because they hinder a proper way to deal with piracy.
Physical libraries compete with book sales too, but of course libraries are lawful. Why should digital libraries be treated differently? Because there are ways to circumvent DRM on Internet Archive books? Well, there are ways to bypass DRM on sold ebooks, too.
Perhaps IA’s greatest mistake was to allow unrestricted lending during the pandemic. If it had kept its original mission, maybe things would not have ended up like this.
-- thimabi Reply - >At this point, the Internet Archive should consider simply moving to another jurisdiction.
Except international copyright treaties exist, which makes copyright enforcement effectively extraterritorial.
-- FMecha Reply - That truly depends on the jurisdiction. International treaties are not generally above a country’s constitution, and there are several countries where the right to education and to access literary works might take precedence over copyright.
I’m not saying copyright is not enforced internationally; rather, IA’s perspective on copyright might be viewed more favorably in other countries.
-- thimabi Reply - Digital libraries are treated differently because they transmit the book by copying it from one machine to another, physical libraries transmit the book by handing it to you without making any copies, and copyright law restricts copying. DRM doesn't have anything to do with this, the fact that you use the word 'library' to describe the former doesn't have anything to do with this, and the fact that IA didn't make a new copy unless the recipient of the old one had deleted it doesn't have anything to do with this: unlicensed copying outside of fair use is copyright infringement. The remedy for feeling that this is unfair is calling your congressman to change copyright law, not violating it on purpose and then complaining when you get sued.
-- pie_flavor Reply - What will this mean for other sites with similar programs? I know many libraries do similar "renting" of digital texts on their websites. I guess they will have to shut down these programs.
For instance, I know this is Canadian so different jurisdiction but here is an example of one: https://montreal.ca/en/services/digital-book-loans
-- radarsat1 Reply - In the US, libraries pay for special ebook licenses that let them do this through an arrangement with the publishers.
-- solardev Reply - Not at all.
They have contracts with publishers, they lend out only the licensed number of copies, and they pay a lot for the privilege.
IA lent out infinite copies simultaneously, pays nothing and actively denied to even talk to publishers (and authors).
-- Tomte Reply
-- Reply- Do any similar services exist outside of US jurisdiction?
-- Garvi Reply - I’ve purchased quite a few old books from online booksellers based on my browsing of them through IA so I hope, at least, there could be some way to still expose these old treasures to people so they could somehow acquire a printed copy of them.
-- Cheyana Reply
-- Reply- Can someone explain if this will also affect archival projects hosted on the Internet Archive?
-- the-mitr Reply - > permitting the digital library would "allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works.”
What a sad, neoliberal ideological ruling collectively holding us back.
Providing rental access does not directly deprive compensation. Loans provide access to information, which can have profound socio-economic benefits.
-- sentrysapper Reply - IA was not providing rental access. They were supposed to do that, but instead were just distributing copies of the books without any kind of rental system.
-- dmonitor Reply - My pet peeve is the usage of vague pejoratives like "neoliberal" without actually describing what it means. I know that the r/neoliberal subreddit, name selected ironically, is fairly pro-piracy.
-- CaptainFever Reply - >Four major book publishers again thwarted the online repository’s defense that its one-to-one lending practices mirrored those of traditional libraries
How does it not? I don't get it... why are physical libraries in the clear if it's still a 1:1 borrow?
-- ranger_danger Reply - Because when the rules for electronic delivery were being written in congress and later legislated in the courts the publishers make damn sure to close the "library loophole" and that pesky "doctrine of first sale". The public didn't really have a seat at the table so the laws were written with a heavy deference towards the interests of the publishers. There wasn't a partisan divide either, lawmakers came together to perfect harmony to allow publishers to bend the public over and take them without lube. If you are a congressman the last people you want to anger are the ones who own the newspapers and TV stations.
-- jandrese Reply - This is just a bunch of fnords. 'Electronic' is not a magic word that changes what copyright protects. Copies are copies and IA distributed unlicensed copies and your local library does not distribute unlicensed copies.
-- pie_flavor Reply - Or if they do they are probably such rare books or records that there is no new commercial copies available. There is preservation of old and rare books. And then there is "preservation" of still in print with large number available.
-- Ekaros Reply - Traditional libraries lend out the physical copies they bought. For ebooks, they have an agreement with publisher to lend out a certain number of copies.
Owners are allowed to make digital copies for personal and archival use. They aren't allowed to transfer copies. The rights of digital ebook are in the license and most prohibit transfers. The rights of physical book are attached to the book.
Nobody notices or cares when done on personal scale. But publishers care when Internet Archive did it on large scale.
-- ianburrell Reply - As far as I know, IA owns the physical books they scanned, so why shouldn't they be allowed to lend them out 1-to-1 digitally the same as a physical library?
-- majorchord Reply - The decision covers that point:
"IA maintains that it delivers each Work “only to one already entitled to view [it]”―i.e., the one person who would be entitled to check out the physical copy of each Work. But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library. 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658 (“We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.”)."
This is really an issue that has to be fixed legislatively rather than in the courts.
-- ndiddy Reply - In short, it sounds like the answer to the "why" question at the top of this thread (https://news.ycombinator.com/item?id=41447904) is: the scan is a derivative and copyright law lets you lend books, not derivative works thereof
Which seems like a nitpicky distinction to me when it's the same words on the same page and they're not shown to anyone else at the same time... but such is a judge's job as opposed to a legislator
-- Aachen Reply - No, because digital works aren't "sold", they're licensed. Even if the IA did the scanning themselves, the laws are written such that a scan isn't like a physical object. You can only own a revokeable license to view it and aren't allowed to do anything else. No transformative works. No transfer of the works. No fair use.
This is why local libraries are getting bled by their e-book subscriptions. They end up paying through the nose for people to check out e-books.
-- jandrese Reply - I thought the person you were responding too was saying that isn’t what physical libraries do.
Also, as far as I know that isn’t what physical libraries do. They buy licenses to share e-books. And don’t physically scan anything.
-- uxp100 Reply - I meant that digitally lending the books out that IA owns 1-to-1 in the same way a real library lends out physical books should legally be treated the same, regardless of any ebook-specific licensing.
-- majorchord Reply - There was a ruling in Europe (UFC against Valve [1]) citing that, as neither e-book nor video-game deteriorate with use, the customer doesn't have a right to sell it on the second hand market as it would affect the copyright holder interest :
> To entrench its position, the CJEU first mentioned that dematerialized digital copies, unlike books on a material medium, do not deteriorate with use and are perfect substitutes for new copies.
> Furthermore, the CJEU added to its reasoning that exchanging such copies requires neither additional effort nor additional cost. A parallel second-hand market would likely affect the interest of the copyright holder – contrary to the objective of the directive and the intention of the EU legislator.
1 : https://www.lexology.com/library/detail.aspx?g=77bb2501-995c...
-- choo-t Reply - Owning the physical book lets libraries lend out the physical books. Libraries can't lend out digital copies of physical books. They lend out digital copies that they have purchased.
Owning object is different that copyright. Copyright owner is only one that can license making copies. Owning a book gives no rights to make copies, with the exception of making personal copies.
-- ianburrell Reply - As I understand it, as soon as the IA makes the digital copy they want to lend (digitally or physically), they now have two copies of the book and have committed copyright infringement. As soon as they lend a copy, there are now three copies in existence (unless they delete their copy as part of the loan) which is another count of infringement.
-- criddell Reply - If they had a system where every page of the original was burned as it was scanned, and when you "checked out" a book it literally deleted the original on the server as it was sending it and the person returning the book also transferred the bytes back it would be quite a show.
I'm about 95% sure a scheme like that would still find them shut down. Remember the Aereo decision? They went through similar contortions, including building an antenna farm with thousands of tiny individual antennas, and were immediately killed off by the courts because it was seen as a legal hack. Such a scheme might threaten cable TV income if it were allowed to stand. Protecting incumbents from competition is a vital role of the courts.
-- jandrese Reply - > a scheme like that would still find them shut down.
Indeed. Someone else in this thread mentioned [1] as doing exactly that.
> Protecting incumbents from competition is a vital role of the courts.
What's even more confusing is that the judges involved aren't paid off or anything, they really believe themselves. Not sure what that means: Money buys charisma; the status quo is 'the best we got'; or some other bias-carrying platitude.
[1] 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658
-- tpdly Reply - See also Peter Sunde (of Pirate Bay notoriety) and his “Kopimashin”: https://www.engadget.com/2015-12-21-peter-sunde-kopimashin.h...
-- bentley Reply - It wouldn't matter if they scanned the books. As soon as it enters the digital realm the laws change. Doing it "on a computer" means the publisher owns the rights.
-- jandrese Reply
-- Reply- Can you imagine, if public libraries weren't already a thing, convincing some Americans to build one in 2024?
-- skyyler Reply - The First Sale doctrine long precedes public libraries.
-- TMWNN Reply - Well, physical lending and electronic lending are not directly comparable.
* It's challenging to copy physical items (you have to photocopy every page which few people do) and you can't do it verbatim (you can't make a 'clone' of the book, it will always be an inferior reproduction). It's more straightforward to remove DRM, and you then have a 1:1 unrestricted copy.
* Library books deteriorate with use and get lost, meaning there will always be the possibility for further revenue, particularly with popular items.
* Physical lending is not governed by software interlocks; software which may not be capable of being inspected or audited by the publisher.
-- YPPH Reply - Seems like most of this hinges of precedent. The courts have upheld that if you buy a book and loan out an audio recording of that book, it's not protected. Or something like that.
-- phendrenad2 Reply - Sad but also deserved. As much as I love Archive.org… what the hell were they thinking?
-- 9021007 Reply - > what the hell were they thinking
Doing their duty?! The progress of civilization?!
-- mdp2021 Reply - We're getting closer and closer to a situation where some jurisdiction eschews so-called "intellectual property" altogether, and then houses essentially of the data on the internet.
What will happen then? Will other states attempt some kind of embargo?
This whole thing feels so childish. The age of owning ideas is over, and all these silly political and legal battles are a waste of the best minds and energies of our time.
-- jMyles Reply - “If libraries were invented today they would be illegal”
-- fudged71 Reply - They should slap "AI" on it, and they'll get a free pass, like Microsoft
-- WhereIsTheTruth Reply - "Is it 'fair use' for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."
-- pcaharrier Reply - I don’t think it’s lost its appeal. A lot of people love using it
-- EGreg Reply - What a disgusting lawsuit. I struggle to beleive in the "lost profits" these publishers "suffer" from. Libraries, digital and physical alike are incredible and neccessary institutions that deserve our support.
-- puppycodes Reply - Really wish one of the billionaires would fund a publishing house that worked off a very different model than the Copyright Protection Scheme that the current majors used. Something that would allow authors to capture upsides, publishers to recoup, and information to spread freely.
Patronage? Large Advances + Subscriptions?
Something besides what we have now. Writing a 200 - 300 page book takes fair bit of effort and time that is not directly compensated, hence advances and the upside of royalties.
-- quartesixte Reply - The majority of authors who write novels hardly earn money as it is. I've written two novels, and they've sold more than average, and yet it can't cover my takeaway budget. That's fine, it's a hobby. But the point is only a vanishingly small minority write for money.
Of course we want to keep some of those who do, but I don't know what a good solution would be. Not least because there's a vast chasm in terms of effort: a novel of the same length can take days or years, and it's not at all a given the low effort one will be the worst one.
-- vidarh Reply - It's not about making money for the author, it's about making money for the publishing company. Nobody in government cares about the authors.
-- jandrese Reply - Even the publishers themselves loose money on most books they publish. Its something crazy like 65% of titles loose money, and 4% of books make 60% of the profits
They book industry is much similar to venture capital, where a bunch of bets are made on books that they hope they hit it big, and get the rest of their income from the long tail of previous books they hang onto.
https://www.elysian.press/p/no-one-buys-books
-- daedrdev Reply - So is it game over for IA?
-- AdmiralAsshat Reply - This only affects their book library. And they will probably only respond to takedown requests rather than take it down
-- TZubiri Reply
-- Reply- There is warez in the Internet Archive.
-- 29athrowaway Reply - CDL was incredibly stupid. DRM and legal trouble from pissed off publishers? That's the worst of both worlds. Pick one or the other, not both. It would have been better for Archive.org to ignore books and leave that domain to the pirates and legacy libraries; one defying the law and giving people books without DRM, and the other staying safely inside the law. With the combination of these two we have the best of both worlds, instead of the worst of both.
-- lupusreal Reply - What this court decision establishes is that you cannot treat the digital books the same way you can treat physical books. For example, you can re-sell or lend a physical book under "first-sale doctrine" but you cannot do the same with a digital book. So "they the people" have less rights now.
-- codedokode Reply - There was literally no upside to the CDL. Neither in theory from the start nor in the ultimate outcome.
-- lupusreal Reply - The upside that you can lend a book without visiting a library; if you live in a remote area you don't need to travel; if you like reading at night you can do it; if you are a foreigner or illegal migrant, you can lend a book too.
So digital library, lending books over Internet is much better than a physical library.
-- codedokode Reply - Honestly the dumbest possible move by Internet Archive. IA has gotten more and more ideological as well, and it's been censoring content it doesn't like. I'm not sure if they're in the Wikipedia/Mozilla boat of screwed up political spending, but if they are, this decision should at least temper that down.
I'm sure they'll be able to raise the money needed to pay off this lawsuit. It's true the Archive has a lot of amazing things not found elsewhere. Still, I've been hesitant to give them any money for years.
The replies in that thread are dumb too. I don't think people understand the legal complexities here, what a huge advantage it was for IA to even be able to lend out digital books in the way it was doing, and how dumb it was for them to think they could create new legal/copyright theory in the wake of the mass-hysteria of 2020.
It does show the two tiered system. Amazon, big tech and others massively got away with absorbing huge amounts of money in 2020. This non-profit tried to do equally shady things and it bit them in the ass. You clearly see where the system is tilted towards.
-- airhangerf15 Reply - You're writing this as if the National Emergency Library was something way out of left field but Controlled Digital Lending was settled law. It was not: CDL and NEL were both exactly the same amount of out-of-left-field fringe copyright theory. In fact, there was already legal rulings against a digital resale scheme called ReDigi. The law is actually fairly clear that first sale only applies to transferring physical property, you cannot resell or lend an electronic transmission.
People are allowed to be angry about settled law regardless.
I question your use of "ideological" and "censoring", especially with the invocation of Wikipedia and Mozilla. Sounds like you have some political hobby horses to ride. Let us keep in mind that Internet Archive's biggest risk is just running the Wayback Machine. Hosting a copy of every website on the Internet is an extreme legal risk that is mitigated solely by the fact that basically everyone who operates or develops websites has had to fish something out of the Internet Archive at some point. If IA has an ideology, it's "it's better to ask for forgiveness than permission".
-- kmeisthax Reply - What content censoring have they been doing, what could I search on to read more about it? When typing "internet archive censoring" into DDG, it just comes up with articles about this case that never even mention the word censoring
-- Aachen Reply - I couldn't think of anything off the top of my head either, but a google search found this: https://www.theverge.com/2022/9/7/23341051/kiwi-farms-intern...
Edit: HN discussion: https://news.ycombinator.com/item?id=32743325
-- dpedu Reply - > citing an “immediate threat to human life” due to threats and potential criminal actions from Kiwi Farms users [...] Kiwi Farms is known for collecting and publicizing personal details about targets it holds in contempt, many of whom are transgender women
Sounds sensible. I also wouldn't want to host such content tbh, similar to CSAM or pirated movies or so, hosting this material sounds somewhere between being a dick and a shortcut to getting the whole site taken down
I could see the point of keeping it around for research and law enforcement purposes but not the general public
I'm glad to hear this is not about censoring for a political agenda, that would have been a huge blow to how I value and trust the IA with what I've come to find a very useful function on the internet
-- Aachen Reply - An odd position to take seeing that the same article mentions the IA refusing to take down "terrorist content." "Terrorist content" is certainly worse than piracy or people being dicks online and obviously presents an greater threat to life.
-- dpedu Reply - > how dumb it was for them to think they could create new legal/copyright theory in the wake of the mass-hysteria of 2020.
I haven't followed the details of this case, but as a general notion, that sounds kinda reasonable to me?
Copyright law and enforcement is terribly broken in the USA, with a handful of giant publishers wielding massive, abusive power and the average American being harmed by losing their fair use rights and independent creators being bullied and abused by the giants behind the copyright cartel.
2020 upended society in many ways and created opportunities to fix various dysfunctional parts of society. It changed things as diverse as work-from-home norms to laws around takeaway alcohol from restaurants. The possibility to also improve copyright restrictions seems reasonable.
-- room4 Reply - "IA lifted its one-to-one owned-to-loaned ratio, allowing its digital books to be checked out by up to 10,000 users at a time, without regard to the corresponding number of physical books in storage or in partner libraries’ possession―a practice IA acknowledges was a 'deviat[ion] from controlled digital lending.'"
No argument from me that copyright and fair use is broken (and exclusively in ways that inure to the benefit of enormous publishing houses), but the "National Emergency Library" thing was never going to fly, even if they had found a judge willing to stretch existing copyright law at the edges.
-- pcaharrier Reply - They were getting away with something because it seemed kind of reasonable. They were effectively letting one person effectively remotely view a physical book they owned.
But NEL threw all that out the window. And COVID was a pretty translucent fig leaf. It's not like there is any shortage of public domain works "for the children" out there even if copyright terms should be shorter.
-- ghaff Reply - [flagged]
-- Filligree Reply - Copyright law is broken in the US, but that doesn't mean that Internet Archive was going to legally get away with what they were doing and escape legal trouble, even if it arguably wasn't morally wrong.
-- TeaBrain Reply - Not sure I follow. I can't think of any country where the CDL would've been clearly legal as is, to say nothing about its "emergency" version.
-- mardifoufs Reply - What are you referencing as not following? I'm not in discordance that CDL was likely illegal, simply in how they were making and sharing unauthorized electronic reproductions. At that point, it doesn't even matter how many people they allowed to borrow at one time. My comment on morality was in reference to how some people may argue that the internet archive was not in the moral wrong, but the law isn't based on any one moral code, so this doesn't really matter to the legal question.
-- TeaBrain Reply - Ah sorry, I was referring to the comment about US copyright laws. I assumed you were implying that the US system was uniquely bad/broken/worse but on re reading it, that's just me badly interpreting what you said. Sorry about that!
-- mardifoufs Reply - "appeal to morality" is how Internet Archive, Wikipedia, Mozilla, and Google etc. have lost their way in the first place.
-- fsckboy Reply - > I'm sure they'll be able to raise the money needed to pay off this lawsuit.
1) The relevant statute actually remits statutory damages for libraries.[1] Though this exception went untested because...
2) The parties negotiated a damages settlement between themselves before the trial court heard evidence and arguments on damages, but they agreed to let the summary judgment appeal go forth to establish firmer precedent.
[1] It's a qualified exception, but the IA was in a much better position in this regard than on the merits. And undoubtedly this limitation on damages figured into their original decision to test the waters.
-- wahern Reply - Does "remits" mean reduces here, along the lines of https://en.wikipedia.org/wiki/Remittitur? It was an unfamiliar term to me and I'm not sure I've found the right meaning.
-- penteract Reply - It means to refrain from exacting, which is one of the Merriam-Webster dictionary definitions. Here's the usage in context:
> [...] The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords
-- 17 U.S. Code § 504(c)(2) https://www.law.cornell.edu/uscode/text/17/504
-- wahern Reply - I think there actually does need to be some re-evaluation of some of the copyright/fair use issues raised by this case, but the NEL thing they did in 2020 was a totally unnecessary risk.
-- pcaharrier Reply - Crazy that this is not fair use but ai is.
-- raytopia Reply - IA's arguments that this was fair use seem exceptionally weak:
* Their "transformation" argument comes down to easing access, which has already been shot down in previous cases; unsurprising, since Napster could make the same argument.
* Their "nature of the work" argument came down to the fact that some of the books they scanned were nonfiction.
* They made a halfhearted attempt to claim that "amount and substantiality" weighed neutrally in this case, despite copying entire books wholesale and making them available in their entirety.
* They brought experts to make their "commercial impact" argument who limited their analysis to physical books(?!) despite the publishers coming to the case with competing ebooks.
It's wild to me they thought they could win this case. There's the law as people at IA and on message boards want it to be, and there's the law as it is. For people who want those two concepts to come closer together, this case seems like a major setback and an egregious strategic blunder.
-- tptacek Reply - If you buy a physical book, you have a right to lend it for free or re-sell it (first-sale doctrine). The publishers want to establish a precedent that you cannot do the same thing with digital books: the library must buy a special license and pay for every reading.
So this is about stripping people from their rights regarding to books made with a new technology.
-- codedokode Reply - It's not the same thing. When you give a book to someone else, you lose a physical object and they gain one. To "give" an ebook to someone, you have to copy it. We have a whole body of law about when it's OK to copy things.
-- tptacek Reply - IA allowed to read books throught the website so no copies are made. When lending a book through file download they used DRM to prevent reading after the lending term ends.
-- codedokode Reply - I'm sorry to have to disagree with you here but in fact every page of a book you show inside of a web browser is under the law a copy of that page of the original book.
-- tptacek Reply - When you look at a book you make a copy on your retina (if you want to reduce to absurd).
-- codedokode Reply - > When you look at a book you make a copy on your retina
Not how our retina, the optic nerve, visual cognition or visual recall work.
-- JumpCrisscross Reply - Please explain how you think retinas work. And they didn't say anything about visual recall.
-- Dylan16807 Reply - If you all want to nerd out about how eyeballs works that's cool, this is the place for that kind of thing, keep it chill, etc. But the law absolutely does not agree that looking at a painting equates to creating a copy of that painting; under the Copyright Act, the colloquial term "copy" means fixing a work into some physical media from which others can recall it.
-- tptacek Reply - So if you stream a movie from a hard drive over the Internet without "fixing" it anywhere, so that the viewer cannot "recall" it, but only watch, then you are not making a "copy" and not breaking the law?
-- codedokode Reply - There was a SCOTUS case remarkably like this, except for radio, and the answer is no, but the truth is it was complicated.
-- JumpCrisscross Reply - So what if the book is never scanned, but there's a video stream of a camera pointed at the book, and a robot turns its pages? If we make a video streaming jukebox for books, is it 'distributing copies'?
-- pxc Reply
-- Reply- As much as I love the Internet Archive, is it really that crazy? The four factors used for determining fair use are:
* the purpose and character of the use
* the nature of the copyrighted work;
* the amount and substantiality of the portion used in relation to the copyrighted work as a whole
* the effect of the use upon the potential market for or value of the copyrighted work.
In the Internet Archive case, they're distributing whole, unmodified copies of copyrighted works which will of course compete with those original works.In the AI use case, they're typically aiming not to output any significant part of the training data. So they could well argue that the use is transformative, reproducing only minimal parts of the original work and not competing in the market with the original work.
-- thebrid Reply - To me, the point isn’t that what the IA was doing was fair use, but that what LLMs are doing arguably is not.
> In the AI use case, they're typically aiming not to output any significant part of the training data
What they’ve aimed to do and what they’ve done are two different things. Models absolutely have produced output that closely mirrors data they were trained on.
> not competing in the market with the original work
This seems like a stretch, if only because I already see how much LLMs have changed my own behavior.
These models exist because of that data, and directly compete by making it unnecessary to seek out the original information to begin with.
-- haswell Reply - But look at your own argument. LLMs are not fair use because they might be prompted into regurgitating something substantially similar to the trained data.
And yet, the IA is 100% aiming to absolutely reproduce literally every part of the work in a 100% complete manner that replaces the original use of the work.
And you cannot bring yourself to admit that the IA is wrong. When you get to that point you have to admit to yourself that you're not making an argument your pushing a dogma.
-- halJordan Reply - I’m not arguing that the IA is right or wrong here.
The point more generally is that there’s an asymmetry in how people are thinking about these issues, and to highlight that asymmetry.
If it turns out after various lawsuits shake out that LLMs as they currently exist are actually entirely legal, there’s a case to be made that the criteria for establishing fair use is quite broken. In a world where the IA gets in legal trouble for interpreting existing rules too broadly, it seems entirely unjust that LLM companies would get off scott free for doing something arguably far worse from some perspectives.
-- haswell Reply - IA was lending a digital copies (only one user at a time may read the book), it was acting like a library lending out physical books, only IA did it over the Internet which is more convenient. IA is non-profit.
What publishers argue is that you cannot treat digital books like physical ones; i.e. you cannot re-sell or lend (like IA did) a digital book.
What LLM do is that they use copyrighted content for profit and do not lend anything.
-- codedokode Reply
-- Reply- > and not competing in the market with the original work
AI absolutely competes in the market with the original works it trains on, and with new works in those same markets. Proponents of unrestricted AI training loudly tout and celebrate that it does so.
Which would be fine, if everyone else had the same rights to completely ignore copyright. The asymmetry here seems critically broken.
-- JoshTriplett Reply - > In the Internet Archive case, they're distributing whole, unmodified copies of copyrighted works which will of course compete with those original works.
Libraries would be illegal if conceived of today. If this weren't digital it would be a violation of first sale doctrine.
-- hiatus Reply - How? Libraries lend out actual physical objects. They're not xeroxing the books and handing them out.
-- tptacek Reply - The actual opinion rules on the concept of controlled digital lending more broadly. From page two:
> "This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."
-- hiatus Reply - Exactly. And if a book is in high demand in a library, you'd either have to wait your turn or purchase one yourself to avoid the lending queue.
-- tcgv Reply - The IA's controlled digital lending setup worked the same way.
-- cool_dude85 Reply - No, the IA's CDL system required them to make multiple copies of books (one to digitize the book, and one for every reader of the book), which is not a legal problem a physical library runs into.
-- tptacek Reply - I agree, and apparently this distinction is legally relevant. However, it does not change my point that the CDL also has the property that:
"if a book is in high demand in a library, you'd either have to wait your turn or purchase one yourself to avoid the lending queue."
-- cool_dude85 Reply - Right. I'd like a system where that distinction matters but it seems plain how the courts will arrive at a conclusion that it doesn't, because the law is about the mechanism more than it is about the intent. Still, we were all holding on to a fig leaf of an argument that the intent would control here, and IA has burnt that leaf up, at least in NY, CT, and VT.
-- tptacek Reply - > Libraries would be illegal if conceived of today.
Just shows how far forward we have progressed. Maybe book burnings next to prevent resale?
-- beardyw Reply - I don't understand how AI companies can claim that they're not aiming to output the training data when the loss function is "how well can model memorize the dataset?".
-- aezart Reply
-- Reply- Something like this would never have fallen under fair use in the first place, I don't think. It doesn't really mesh very well with any of the factors US law lists as considerations when deciding whether or not use is fair.
If this falls under anything it falls under the first sale doctrine.
I generally side with publishers and artists on the generative AI debate, but I'll at least concede that they have some grounds for a fair use argument based on the transformative (legal jargon meaning, not buzzword meaning) nature of the work they're doing.
(IANAL, just guesing, etc etc.)
-- bunderbunder Reply - Did AI companies buy copyrighted works though?
-- codedokode Reply - Lending books to students doesn't make Red Line go up.
-- suprjami Reply - I wonder how legit it would be to have an AI scan over the copy, re-write it (as minimally as possible) in its own words, and then just distribute that.
Probably not all that legit, but arguably thats where we're headed anyway :/
-- AcerbicZero Reply - The challenge (afaik) is that "as minimally as possible" is very much a gray line, and that line can be make weaker depending on the volume of material.
-- jadbox Reply - Dare I say "Follow the money"?
-- pcaharrier Reply - Just make an LLM spit out a Metallic song, that will fix that.
-- mrweasel Reply - Metallica. Not even once since Napster. NOT EVEN ONCE.
-- wileydragonfly Reply - Indeed! Although in the AI training case it's much more surreptitious. Everyone trains on them, the only story that I'm aware of is the one about the OpenAI books1 and books2 datasets used to train GPT3.
-- woadwarrior01 Reply - The argument can be more easily made that AI is transformative compared to copying the content of eBooks.
-- TeeMassive Reply
-- Reply- Creating something transformative is worse than straight up copying it? How does this make any sense?
-- Minor49er Reply
-- Reply- Is AI fair use? I'm no legal expert, but my impression was that the legal precedent simply had not been set yet, but that when it is set it is likely against AI
-- bowsamic Reply
-- Reply- Url changed from https://twitter.com/PublishersWkly/status/183135757036549737..., which points to this.
-- dang Reply
-- Reply- America fuck yeah.
The rich suppress the poor again.
Knowledge behind paywalls.
-- lakomen Reply - Ill-expressed, but can be interpreted plausibly.
-- mdp2021 Reply - Yeah, you can’t just give away copyrighted books for free, lol.
-- symlinkk Reply - It is what we have been doing for the whole of history.
-- mdp2021 Reply - If you buy them first, they are yours to give away...
-- altruios Reply - Buckminster Fuller: “You never change something by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.”
This is why we need the World Wide Scroll. A decentralized, offline first, successor to the web. I already built the damn thing and it works. Just need some liquid methane for propulsion. Buy a folder, help us start a peaceful revolution. https://wws.scroll.pub/
-- breck Reply - > All updates are subject to approval by the World Wide Scroll reps.
Lol, no thank you. Bold of you to try and become the arbiter of all human knowledge in this dystopian future you envision.
-- Petersipoi Reply - Any better suggestions?
I put that in just as a suggestion for an enforcement mechanism in case people put trackers in their folders.
But if you look at the design of the WWS, it is radically anti-censorship. The only thing that would be moderated would be that single "root.scroll" file.
-- breck Reply - Whole thing should be obvious if you tried something else too. Like say DVD movies, rip them on free service and then only stream 1 copy at time... Surely that should be allowed as well?
Why not music too, go out buy cds or vinyls, rip single one and now however many bulk copies you have you can stream at one time?
Software gets bit more messy as it needs to be installed, but why not share saas seats, just somehow enforce single concurrent user...
-- Ekaros Reply - It is not clear if this user knows about mediatheques.
-- mdp2021 Reply