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...
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.
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".
Say for instance, I buy a book. I make a scanned copy and lend out the original. The person who borrowed the book, makes a copy and sends it back. I do this for 1 million times. I wasn't distributing copies, no one was distributing copies.
This is what we did in Uni. The class would contribute some small amount to the purchase of an original book. Then the person who bought the original with the classes money, made a copy, passing the original along. Within the week, every student had borrowed that book. And everyone had a copy. Do you see the murky water?
For an actor like that, you want to take cases that you can win to court, to establish precedent step by step. You want to settle cases you might lose out of court to avoid establishing precedent to your disadvantage. In this way, you can slowly change the interpretation of the law.
Taking this to court is seen as a mistake because it was a predictable loss and established a harsh precedent.
Internet Archive had lent books on a 1 reader for 1 physical copy basis for a long time, and the publishers didn't want to take it to court because the judge would need to weigh the rights of a person purchasing a physical good against copyright. They might no like the decision. It suited them to leave it untested.
Internet Archive chose to lend unlimited copies and pursue the matter to its conclusion in court rather than settling out of court.
Assuming Internet Archive were well advised, knew they would lose, and still chose to create this situation and go to court, you have to wonder why.
Are they trying to create an unacceptable legal precedent so that they can get the law changed? Some other reason I am not seeing?
A teacher buys a book which is a collection of worksheets. The teacher photocopies some worksheets out of the book to use in a non-profit educational environment. This is entirely fair use.
A teacher buys a copy of a textbook, photocopies the entire textbook, and hands it out to the class, that is not fair use because it is the entirety of the work.
There are four factors of fair use. Factor three is the amount or substantiality is being copied. You're somewhat right there isn't an entirely objective standard to measure things, but there isn't exactly an objective measure to creativity.
You can't put something on a scale and get units of creativity a work has. You can't get a graduated stick and measure the creativity of a work.
There is indeed plenty murky here, and it is mostly coming from you in an attempt to incorrectly use an emotionally-loaded word in order to deceive people into supporting your position.
That's an entirely colourful way of phrasing it, considering I merely just said what I thought and have experienced, nor do I think I have the capacity to deceive at such a level. That is your opinion, and I accept it.
It's copyright infringement. It's not theft. Theft deprives an owner of use of an item.
Instead, it's treated as a civil issue, when it's pursued at all.
> When Bob invests labor into X to generate financial gain, and Tom utilizes the results of Bob's labor on X without compensating Bob at his requested rate.
However, this definition becomes problematic for many values of X. Consider cases such as:
* Fashion styles * Business models or store layouts * Factory or house designs * Cake decorating techniques * Cooking methods * Agricultural practices
In these examples and many others, the concept of "owning" the fruits of one's labor becomes murky. *Intellectual property laws were originally conceived to benefit society as a whole, not just individuals.* As our understanding of innovation and creativity evolves, we may find that some communities flourish better with more flexible approaches to intellectual property.
If Bob prints a book and you take it without paying for it, that's stealing. If Bob prints a book and you buy it from Bob and you make copies of it and give it to your friends, that isn't stealing. And it shouldn't be classified as stealing, morally or legally.
The only reason it is considered illegal is because greedy corporate interests decided to make it so. Historically, people bought books and copied it and spread it around. That was the norm until fairly recently.
'Intellectual property' is theft. It is a fiction invented by the parasite class. Just think about it.
That's not just a narrative that serves the establishment, it's a fact of life. We don't get anywhere towards change by ignoring the reality of the present situation—we have to work within reality in order to change reality.
Lots of libraries do free digital lending of ebooks in a legal way and have done so for a long time
I think it's perfectly fine to download an ebook and mail somebody your harddrive for them to read it no?
I'm not sure it's legal for you to photocopy a physical book and mail them those photocopies even if you burn your book.
Rather than mailing your friend a hard drive, you could mail them a door key and they can come over and use your computer to read the ebook or your couch to read the book.
Because digital and physical goods aren't the same thing. Equal rights principles presuppose that two things are equivalent. Unequal things can be treated unequally.
Each copy of a physical book is mutually exclusive, a library can't buy one copy and then lend it to a thousand people at the same time. Placing limits on how digital goods are distributed is actually how you restore some equality in regards to the property rights of the author.
They don't own these books, only pay-as-you-go licenses to do exactly what they do.
And of course, not every print book is available digitally, and not every ebook is available from the small number of vendors that license ebooks for borrowing to libraries.
No, it's a different situation. In contrast, the government public libraries legitimately purchased ebook licenses (aka "renting") from the publishers and then "loaned" out a limited # of simultaneous copies in a legal manner. The book publishers approved this arrangement.
The Internet Archive didn't do that. Instead, they "loaned" out digital scans of books they did not buy ebook licenses for and took it upon themselves to name it "Controlled Digital Lending". This method circumvents the book publishers which is the opposite of what government public libraries did.
EDIT reply to: >If they have the physical book how is this any different,
When I wrote, "different situation" , it's about the "legal difference" and not "philosophical difference".
- situation with govt public libraries: The book publishers did not sue the public libraries that legitimately purchase ebook licenses from them. The publishers receive payments from that arrangement so there's no lawsuit for "copyright violation".
- situation with Internet Archive: The book publishers sued IA for copyright violation by lending books it never purchased ebook licenses for. The circuit appeals court sided with the book publishers unanimously by a vote of 3-to-0.
Those 2 situations above are different legally such that whatever precedent that's set by IA losing the case doesn't affect govt libraries that have been purchasing legitimate ebook licenses. I was trying to clarify gp's incorrect statement which could spread misinformation: "And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"
And yes, I would outright abolish copyrights if I could, so please don't try to what-if me, I won't care about the implications in the way you would want me to.
If anything, imo to be able to hold on to a copyright you should have a burden of proof that society benefits as a whole long-term from your work remaining copyrighted, and virtually nothing meets that burden of proof.
The publishers and the third party platforms libraries force people to use for digital lending can force ebook readers to create accounts and hand over their personal data and reading history and those platforms use that to push ads or sell that data to publishers and other third parties.
What the internet archive was doing didn't allow publishers to collect/sell that personal data, didn't give them the ability to limit/censor/remove titles at any time, and didn't allow them to charge excessive fees for the "privilege" of loaning the book electronically. From the stance of the publisher they risked losing a lot of money and power. From the stance of everyone else what the internet archive was doing was an improvement.
The creative part being protected by copyright are the words, not the physical pages. You're not transforming the words; you're transforming the paper to bitmaps. All the words and concepts within them are the same. It's not transformative in the same way ripping a CD to an MP3 isn't transformative.
If I change the font for an ebook, have I meaningfully transformed it?
I think everyone can agree we've seen from academic publishing what a shitshow {public need} + {extractive private IP ownership} can be.
Requesting libraries to enter into agreements with publishers in order to loan copies of their books isn't in the public interest.
Because invariably these publishers will realize they can bump rates year over year. And then private equity will realize they can buy these rights holders for a secure income stream. And then the year over year price growth will accelerate.
And contrast this with physical first sale doctrine. (1) The library bought or was donated a copy of the book. (2) As long as they could store it, no publisher could tell them a damn thing about how they could and couldn't loan it.
First sale doctrine (in the US) said the buyer owned the physical copy and could resell or do what they wanted with that single copy.^
Obviously, that isn't portable to a zero-copy-cost digital realm.
However, the "buyers never actually own anything digital" modern reality is vastly different than the historical norm, in favor of publishers and platforms.
What was missed was the conversation around what baseline we should establish around digital ownership.
We've nibbled around the edges (you have a right to decrypt something you've purchased, in some cases), but we never clarified it sufficiently.
And without clarity, buyers only get whatever rights publishers/platforms decide to grant them.
IMHO, we'd be better served by establishing a clear floor of digital ownership rights, that no publisher or platform had the legal right to remove or obstruct.
That's how we did it previously, and it worked well...
^ There were some exclusions around mass/public broadcasting, but those were pretty limited.
I'm not sure how you figure that. Its still a sale. You might want to read though how much case law there is all over the world that conflicts with that conclusion. Read that post, it has plenty of examples how it doesn't matter if its digital.
Here is one in particular:
In a 2016 Australian case regarding Valve's refund policy for Steam, Australia's High Court carefully examined whether computer games sold through Steam are goods (and therefore property and consumer rights apply to them) or services (and therefore no property or consumer rights or apply to them), and concluded that they are fully goods, and that Valve doesn't merely sell a license to use the software, but in-fact sells the software itself, and that whoever buys a game from Steam becomes owner of the software that they purchased. Australia's High Court concluded: "Each of Valve’s challenges to the applicability of the Australian Consumer Law fails. The conflict of laws provisions in the Australian Consumer Law did not essentially carve out an exception for conduct by foreign corporations like Valve governed by a different contractual proper law. Valve supplied goods (which are defined as including computer software)."
What point is legal prohibition if technical implementation is trivial?
And what of legal requirements if technical implementation is impossible?
The unwritten assumption girding physical ownership was "... and it's non-trivial and expensive to physically copy a book."
With digital copying, that's no longer the case. Consequently, simply to maintain the same system the law would still need to change.
Unfortunately, in the back and forth between extreme positions, publishers used this difference to argue that ownership was no longer financially possible and usher us into the realm of rent-only.
PS: Valve maintains sufficient control of Steam-distributed apps that's a defensible position. A better case would have been GoG.
What might have made him a hero is having been smarter about how he went about this book/library project, and he's blown it. And he has now put the entire IA at risk by doing this stupid book/library thing under the same company.
The fact that he lost, and the plaintiffs affirmatively won on Summary Judgement [0] is huge. It shows Kahle/IA NEVER HAD A CASE from the outset.
Summary Judgement means, based on the undisputed material facts and the law, there is no purpose to a trial, and a proper judgement on the case can be made immediately. "Summary judgment is a pretrial motion that promptly resolves legal actions where the parties have no genuine issues with any material fact. The court produces a judgment for one party against the opposing party without needing a full trial." IA may appeal to SCOTUS, but I see no scenario SCOTUS even looks at the case, nevermind takes it and rules in IA's favor.
For years it's been an obviously unnecessary risk for IA. While it may have been a noble cause, it was absolutely a risk, and should have been done under a separate corporate/legal entity.
Instead, he recklessly barged ahead with no regard for likely consequences. The result is that the entire Internet Archive and Wayback Machine is now at real risk of being lost when the court awards damages.
I've seen far too many smart people doing stupid things, but this is one of the most glaring examples. I hope IA survives.
Why aren't others doing it? Because IA existed and no one wants to do redundant things. Today, they just stopped being redundant, so I hope others will rapidly invest the resources to make different Internet Archives...
[1] https://www.findlaw.com/litigation/filing-a-lawsuit/what-is-...
I'm very confused by this statement and I don't understand if it comes from you not working in library and information science, your definition of an archives or your opinion on what an acquisition policy should be, but lots of national archives have and continue to archive the Web.
https://brendan-47137.medium.com/debunking-the-brewster-kahl...
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.
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.
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.
Ie: the voters themselves may not hold any personal opinion on the matter.
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.
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.
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.
casual e-book piracy doesn't include DRM.
They knew. I have an MLIS and took one copyright course and could tell immediately that what they were doing was illegal/wouldn't hold up in court. For them not to know would suggest that their staff is less informed than I am, which can't be true.
It may make logical sense to think of CDL as indistinguishable from physical book lending in libraries, but because it entailed making a copy, that was never legally the case.
You can defend against the default presumption by arguing fair use. The IA did try this but it was very clearly doomed to fail, because they are providing whole copies for normal use. It was so obvious it was a summary judgement. “Fair use” is not a general term about what we think should be allowed, it has a specific statutory definition and there is no serious debate over whether CDL can be twisted into it. It may be morally right but it’s clearly legally wrong.
It may be ridiculous that yes, if you scan in a book, send it to your friend, burn your physical copy and delete your copy of the scan, that you inarguably committed copyright infringement. But that’s the law.
The ruling clearly addresses this in the section about the application of fair use to the idea of the CDL (that is, where the lending is controlled in the way we’re idealizing) and it was deemed obviously illegal. The very act of making and distributing a copy is what is infringement, and as the ruling clearly lays out none of the pillars of fair use come close to applying as a defense. Crucially, it is not transformative (it’s the same book used in the same way) and the entire work is copied.
The law is bad and it sucks and we need to change it. It’s depressing to me that so many really smart people don’t have a good understanding of this, probably because most infringement usually goes unpunished. We don’t get to deem it okay simply because it logically makes sense that controlled digital lending is obviously equivalent to physical lending. Unfortunately the act of making the copy and then distributing it changes everything.
> "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."
Let's not flip the situation upside down though: IA didn't limit anything, the publishers did. The publishers have the possibility to make this possible if they want, and they don't want to: the responsibility is entirely on them.
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.
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.
It took a lot of money control from the publishers and third party vendors libraries force people to use for digital lending. Those vendors can force users to create accounts, collect reading history and personal data, push ads, and sell lender's data to publishers and others. It also let publishers restrict what titles were available, remotely censor content, or remove titles whenever they wanted.
The IA was creating their own scans which limited the control publishers had and cut out much of that data collection/ad pushing. It was a better deal for readers, but it was a worse deal for publishers and advertisers.
I didn’t suddenly stop buying books on amazon when I could get them from the IA, the people who used it were the ones that could afford those books from Amazon in the first place.
Of course, me ‘thinking’ something is no guarantee, but I don’t have the numbers to say one way or another.
People were banned from exiting their homes. Libraries were forcibly closed. Emergency lending of digital books is the most noble battle they could have chosen.
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.
Hard agree, and this is how I've felt since they started this whole boondoggle.
> 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.
I'm a librarian/archivist and my very first career goal back in the 90s was to work for the IA - digital preservation is why I went into the field. They've essentially torched my opinion of them by doing this, and I was one of their biggest supporters/proponents. Even my most charitable readings of their actions lead me to think that either their egos got in the way (because oh goodness did they ever get accolades within the profession and librarianship/archivism has a severe problem with not thought out armchair activism) or they're just idiots when it comes to tactics and strategy. Either of which suggest to me that they are thoroughly unsuited to run an archive of any importance.
Trials are for when parties disagree about the facts, e.g. was the light red or green.
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...
https://web.archive.org/web/20240000000000*/https://www.reut... ("This URL has been excluded from the Wayback Machine.")
https://archive.is/B1T2P#selection-2151.0-2155.234 ("A Reuters Special Report | How an Indian startup hacked the world")
https://www.politico.com/news/magazine/2024/01/19/india-judg... ("How a Judge in India Prevented Americans From Seeing a Blockbuster Report")
IA cannot be trusted to be an archive of record for news stories; they memory-hole them freely and liberally. (What a total mess the internet has become, pontificating generally, that we can't rely on even tier-1 newswires from not getting scrubbed from history. No one has the power to walk into dead-tree libraries and physically tear up archived newspaper articles they want to hide. But in the internet world, that's becoming an easy and commonplace thing censors do, and get away with. The internet was supposed to be the opposite of this. People who erase the past, and especially the self-styled Internet Archive, have abandoned the core values the internet was meant to idealize...)
(It would still be voluntary even if IA had been ordered to do something in India, because as is the topic of the thread, IA is a US-based nonprofit under the jurisdiction of US courts).
Of course, letting the most restrictive jurisdictions set the global norm isn't great, either.
Anyways, I fully understand how one would make the choice to not piss off India. From your source:
> "We were faced with the decision of either keeping the article available and risking having legal action taken against us, and incurring a costly defense in an unfamiliar venue..."
That's under duress and coercion, and doesn't meet my definition of "voluntarily", even if one could still fight.
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.)
Even if it didn't, preserving places like KF is necessary to prevent future scholars from having a really warped idea of what the Internet was like in the 2020s. I find KF extremely off putting (I lurked there long enough to form my own opinion), but I'm not sure how a person is supposed to research how to prevent unhealthy communities from forming without examples of said communities.
I also find it darkly hilarious/sus in light of the fact that one of the primary points of the social justice movement is how we've whitewashed/erased our history. (e.g. how Americans' history education has minimized the perspective of Native Americans or omitted uncomfortable facts about racial discrimination). Are they against historical revisionism or do they just think they'd pick better things to 'erase'? I feel the same way about censoring books that use the n-word: knowing that was at one point acceptable really hammers home how acceptable open racism was for most of American history. Censoring/omitting places like KF from archives (when those archives claim to be representative/neutral) is going to give the impression that there was far more consensus on the 2010s/2020s Internet than there actually was. It's misleading.
>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.
> Archive.is’s authoritative DNS servers return bad results to 1.1.1.1 when we query them. I’ve proposed we just fix it on our end but our team, quite rightly, said that too would violate the integrity of DNS and the privacy and security promises we made to our users when we launched the service.
> The archive.is owner has explained that he returns bad results to us because we don’t pass along the EDNS subnet information. This information leaks information about a requester’s IP and, in turn, sacrifices the privacy of users.
[1] https://community.cloudflare.com/t/archive-today-is-failing-...
> Note again that a query MUST NOT be refused solely because it provides 0 address bits.
The shenanigans are absolutely on archive.is's side here.
Hi, Mek here (speaking as myself). Disclosure that I run OpenLibrary.org at the Internet Archive. I'm sad to hear you're disappointed with how things are going. I share your frustration.
I wanted to join in and +1 one of your comments: the importance of preserving our digital history. Preservation is a core mission of the Internet Archive and central to the tagline, "Universal Access to All Knowledge".
At the end of the day, the reason to preserve cultural heritage is so that it can be made accessible: Eventually. In ways that serve people with special accessibility needs who are otherwise left behind. In formats and environments capable of playing back materials that no longer have available runtimes. With affordances that make these materials useful and relevant to modern audiences.
An important reflection is that a key role of archives and libraries is to preserve cultural heritage by building inclusive, diverse collections, which span topics and times. For decades, libraries pursued this goal by purchasing physical books and, over time, growing and preserving collections of materials that serve their patrons. Not just bestsellers. Weird, obscure, rare research materials about rollercoasters, genealogy, banned books, stories from lost voices, government records.
The shift of publishing to digital [especially how it's done] fundamentally affects how [of if] material may be archived or accessed. It's not enough to assert the importance of preserving culture. One must actively advocate for a future where media can be archived. As Danny suggests (https://news.ycombinator.com/item?id=41454990), this is something the Internet Archive has been acting on since its inception.
What we're seeing today is a shift to digital, designed and led by publishers who are engineering a landscape with new rules where libraries can't own digitally accessible books. Libraries are being offered no choice, no path forward, but to lease (over and over) prohibitively expensive, fixed pool of books, that disappear after the lease period is up. This means libraries have ostensibly lost their ability (first sale doctrine rights) to own, grow, and preserve a collection of books over time... A fundamental ecosystem change that threatens the very function of preservation that you and I so strongly value. Preservation necessitates the ability to preserve. Preservation is a fight for the future and I believe a preservable future where libraries are allowed to own digitally accessible collections of books is a future worth fighting for.
That doesn't mean we should only be looking into the future. Looking at today, the only permanent collections libraries do / can own and preserve are physical. So what other question is there besides: how can libraries make the materials they rightfully own, preserve, and are permitted to lend accessible to a digital society? How may libraries make the digital jump to help millions of physical books enter public discourse, which takes place ostensibly online?
In my opinion, this is the discussion we're having. The Internet Archive continues to preserve millions of documents of all sorts: websites, radio, tv, books, scholarly articles, microfilm, software, etc. A very small team of staff are doing the best job possible to make sure that, not only does our cultural heritage get archived, but that in the future, archives and libraries have the right to exist, be useful, and that there are materials archives are permitted to preserve; that important research resources are made accessible to the public -- especially those who have traditionally been left behind. Someone needs to fight for the future that lets us continue preserving the past.
I'm personally very open to your suggestions on how the Open Library can improve and appreciate you taking the time to share your thoughts.
I love computers, and so many aspects of the digital age. But one of my biggest concerns with this era is the impermanence of information. We have seen people trying to use this impermanence to rewrite the perception of history. This is not new (Tulsa Race Massacre), but the new systems break quicker than paper and cutting people off by expiring a license or DRM key is a lot easier than physically seizing every copy of a written work.
The transition to digital threatens to completely remove our ability to archive our culture as a public good, and puts that power solely in the hands of moneyed interests. So much human effort has been put into establishing and maintaining systems for free distribution of information. We are watching it being stripped away and selectively leased back to us, and once that process is complete, it will be much more difficult to get back to where we are now.
I am not a legal expert, and I have no special insight into how the legal process has gone or could have gone.
I personally want to thank the Internet Archive for fighting to preserve our rights. I appreciate The Internet Archive standing up and taking on this fight, and if there was a better way to do it then someone should have done it.
Fights for public rights over private interest will always be uphill battles full of road blocks, and take sustained effort. I am going to donate $100 towards The Archive's continued legal battles (both defensive and offensive).
Internet Archive Forever! I hope to catch you at one of the archive events.
Why did IA pursue this case? You all lost in summary judgement, did your attorneys not tell you that you all had a terrible case and were likely to lose?
You have damaged your credibility and reputation as well as created negative precedent.
All in all, this seems like a massive blunder and I was hoping you could share what strategy you all are pursuing?
Not really. This put a huge chilling effect on real attempts at CDL, which IA was not.
Was anyone else doing anything? Or standing ready to do anything?
The payoff for winning would have been massive, but if the IA shuts down because of this, so will the cost for losing.
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."
For some reason this was acceptable in physical form for hundreds of years. CDL is just making it more convenient for our modern reality.
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)
There are special kinds of copies that specifically don't count under copyright law : basically anything "cached", be it in RAM, browser caches, or similar.
I 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.
I understand the court decided this wasn't okay. That aside, how was it hurting working authors?
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".)
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.
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.
The money followed the value.
The value of distribution is no longer there. We are trying to push yarn up a chimney.
I like living in a world where authors make a living by writing books, but if the inherent value isn't there then it's all fake, fake fake.
This is the same predicament we've been in for years with other forms of media, but those with big corp backing have managed to synthesize value through various forms of sabotage like DRM or linking their software to a remote server somehow. We've come to accept it because there's value in dodging all of the nonsense.
Consumers will always be the barometer for fairness; if they perceive value, they will pay for it. But all the controversy is about fairness for the authors and publishers. If authors can figure out some money-making scheme then great, but let's not concern ourselves with "fairness" for the author because that went out the window a long time ago. This is all just a big money grabbing game at this point. (And what they really mean is fairness for popular authors anyway.)
Maybe the future will look different. We need authors, we need editors, but do we need publishers? Probably not. Maybe a trend will form where groups or individuals commission a work from an author, taking the place of the publisher on a more ad hoc basis. Or maybe concepts like Patreon will evolve to better compensate authors. I don't know exactly what it will look like, but I do know that targeting groups like the Internet Archive is nothing more than a delay tactic.
You may be able to gauge this from my earlier post where I've advocated that creators should receive fair recompense for their work: https://news.ycombinator.com/item?id=41455357. (I've written on this topic many times over the years and I've always advocated creators should receive fair and reasonable dues.)
I agree with you about it all being backwards. Unfortunately, it's a fact that wasn't helped by opportunistic creators such as Hugo in the 1880s as I pointed out here: https://news.ycombinator.com/item?id=41456596. That said, times were different back then and despite my criticism of Hugo et al they had a valid case. Same can be said of Gilbert & Sullivan and the pirating of their operettas (see 'background'): https://en.m.wikipedia.org/wiki/The_Pirates_of_Penzance.
What happened in 1886 at Berne was overshoot albeit an understandable one. The trouble is that once in place international law is essentially entrenched forever, revising it is is nigh on impossible. Unfortunately—but understandably—rights holders aren't going to give ground without a struggle. This I reckon is the crux of the problem and it's primarily the publishers who refuse to give ground—not so much content creators.
The issues are many and they range across a vast field—from how much does a creator owe back to society from it having nurtured and educated him/her through to publishers being bloody-minded over protecting orphaned works, through to DRM, through to equity/arguments over access to information which has educational implications—thus ultimately it's of strategic importance at a national level (China's lax IP laws have helped it enormously, the US and Western nations ought to take note).
As I see it, content creators and consumers need to join forces to arrive at a mutually satisfactory agreement and I see little room for both Big Tech and existing authoritarian publishers in such an arrangement. (And I agree with you, 'consumers will always be the barometer for fairness; if they perceive value, they will pay for it'.)
I'd add that both parties ought to encourage and foster this symbiotic relationship ASAP, as at best both will benefit, at worst it'll be the least destructive option.
What I fear most is that copying tech will become so easy that any sense a human can experience will be able to be copied. Very soon one will be able to capture just about everything one sees, reads or does with great ease, copying by default will become the norm. This could easily become very destructive and not benefit anyone, creators, users and society will all be worse off.
Copyright, IP and patents are very complex matters that just can't be left to hip pocket arguments and or gut reactions over property rights and it's time the debate matured to reflect this. That won't be easy given that money is involved.
Like you I don't know how it will end up but it's clear that things could go horribly wrong if sense doesn't prevail. Let's hope it does.
> What I fear most is that copying tech will become so easy that any sense a human can experience will be able to be copied.
For many people and mediums this is already the case. What bothers me most is that this normalizes outlaw behavior. That is usually an indication that the law is wrong, but in the meantime it erodes our collective morals.
Right, copyright law needs to respect your ownership of that physical property. That bound collection of paper. That stamped piece of vinyl. That reel of magnetic tape. That plastic disc. The copyright protects the ideas and creative stuff on that medium, but not the actual medium itself. You don't actually own any of the ideas that medium contains, but you do own the actual medium.
But what property do you actually own when you "buy" a digitally distributed work? What is the "that" in this case? A collection of bits that are indistinguishable from every other copy of the file? Isn't that what is actually copyrighted, and not the "that"?
In the law, a "license" is just permission from a copyright holder to do something. There are no standard terms like there is with a "sale", because licenses are usually tied to a contract[0]. And contracts can have really arbitrary provisions[3]. For example, fair use says you don't need permission from a copyright holder in order to review a game. But if that game is only available digitally, the copyright owner solely dictates the terms upon which the game is sold, through contracts and licensing. And that contract could absolutely just say "you agree not to review the game in exchange for permission to copy the game to your hard drive and RAM[4]", in which case there is no fair use anymore. In fact, Oracle already did this[1].
The law has no counter to this because, for the vast majority of copyright case law history, nobody needed permission to purchase a physical copy of a creative work[5]. Physical media has very well established consumer rights that were codified back when copyright law wasn't nearly as blatant a power grab. Digital is very recent, and copyright law has gotten significantly stricter. It's often said that "the law needs to catch up to technology", but that usually gets said in the context of "I thought of this cool little excuse to not get permission[2] but the court won't agree". Where technology really outflanks the law is in inventing new ways to strip consumers of their rights, by turning things that didn't need permission into things that now do.
[0] US law only. In other countries licenses are treated as separate from contracts, but this is mainly something plaintiff lawyers have to remember when drafting complaints, since "doing something without permission" is copyright infringement but "getting permission, but not fulfilling your end of the bargain" is breach of contract here.
[1] https://en.wikipedia.org/wiki/David_DeWitt#DeWitt_Clause
[2] Which will never be granted, mind
[3] The only real restriction on contracts being that you can't literally sell yourself into chattel slavery. BTW, in unrelated news, never upload your brain into a computer if you happen to like the 13th Amendment.
[4] DON'T GET ME STARTED ON MAI SYSTEMS CORP VS PEAK COMPUTER INC
[5] Thomas Edison tried.
> Speaking purely in the realm of Law
Let's argue this from the basis of expanding the ideas of copyright to something newer and better for this digital age. As mentioned, these days we're really just buying licenses. How do we better define property rights with this new(ish) concept of ownership to help individuals continue to have useful rights while not just suggesting copyright overall is now meaningless and creators no longer have any protections? Do we codify some basic rights of ownership around what a license is, what it means, and how one transfers ownership of it?
Anyway.
First you need to legally define the kinds of licenses we care about. There's a bunch of very good reasons why permission can't be sold, so we want to make it clear that we're only talking about things that function like a sale. That is, one-time purchases of works that are downloaded to a device and whose license grants fall within normal use of that work. This is the sort of thing that needs to be drafted water-tight because the industry absolutely will search for excuses to not comply with the law.
Second, we need to define how a transfer can be done and who needs to honor it. This has per-work and per-service considerations, especially in games[1], which have anticheat and toxic player removal. There are times where a copyright owner has a legitimate interest in taking away the thing you bought because you are ruining the experience for everyone else. So we need carveouts for our carveouts, both of which need to be carefully drafted to not interfere with anticheat.
And this is only considering digital-to-digital first sale. That's easy to do because the systems already exist to revoke and delete your ownership over digital copies of works; you just aren't allowed to use them for first sale purposes. We're ultimately just dictating that certain kinds of DRM license files have a legal mechanism to transfer between owners.
Physical-to-digital schemes like the IA's Controlled Digital Lending pose an additional problem: there's nothing to physically enforce the destruction or disabling of the physical copy when you convert it to a digital one and lend it. The book doesn't refuse to open because someone has it open in Adobe Editions. Everything is done on the honor system and there's massive incentives to cheat CDL. The discovery on the IA lawsuit showed that they basically had never complied with their own legal theory. They had partner libraries who were counting copies of books as digitally loanable without actually taking them out of circulation, and when IA had discovered this on their own, they never did anything to take that library out of the system.
An actually legal CDL regime would need infrastructure to support itself. I'm talking legally qualified DRM banks that could lock up or burn books in exchange for DRM limited files that accurately represented the time in which the physical side of the book was inaccessible. That's... still extremely complicated. Actually, screw CDL. If we're talking about amending the law, there is a far easier way to go about fixing the problem with ebook lending: Book Communism!
Compulsory licensing is a scheme in which the government sets the price of a specific kind of copyright license. If you pay that amount of money to the copyright owner, you automatically have that permission, they can't say no. Naturally, copyright owners would liken this to theft, but they thought your dad's VCR was a home-invading rapist[2], so I don't consider their opinions on the subject to be meaningful. The idea is actually pretty straightforward: having a government-set license price makes licensing a lot more straightforward. Creative work owners can't make silly demands of users or withhold shit because their """strategy""" that quarter was to keep something off the market or sell exclusivity[3].
The specific imbalance that IA tried to fix with CDL is that libraries, being public services run by local governments, do not have negotiating leverage for favorable ebook lending terms with major publishers. "Just lend out physical books digitally" fixes the problem for libraries but the infrastructure needed to make this not unfair to authors or publishers is silly. Why can't we just have the federal government say, OK, we'll sell licenses in which any library can pay $X to the owner of a given book and then digitally lend it out Y times or for Z days? The Copyright Office or some administrative judge can determine fair values for X, Y, and Z.
[0] For one thing, if you are a small artist, you effectively do not have copyright protection because the enforcement costs for a single infringer greatly exceed your total revenues. Copyright is already a failed system.
[1] For example, if reselling whole accounts is legal, then I can buy hundreds of accounts, play the game I want to cheat in on each one, and switch accounts whenever I get banned.
If reselling individual licenses is legal, then after I get banned, I can resell the license - which continues to remain valid - and get my money back so I can repurchase the game on a new account with a fake identity.
[2] https://en.wikipedia.org/wiki/Jack_Valenti#Valenti_on_new_te...
[3] A related wrinkle in the CDL story is that publishers really, really hate libraries. Not because they let people read books for free - in fact, library circulation is actually really good advertising for sequels that won't hit libraries right away. The problem is that libraries are run by book fans, so they're going to recommend books they like, not what the publisher needs to sell that month.
I am skeptical of government bodies having the agility to appropriately respond to market needs in a timely and equitable fashion, since they've done such a bad job with the rules in every other area. This is not to say that it can't or shouldn't be done, but definitely deserves careful consideration. What mechanisms do you imagine might keep such a system functioning healthily?
While physical books might indeed wear out, I think they wear out way slower than what current library e-book licenses might suggest (apparently two years or 26 lends seems to be popular in the US? – my library has tons of books older than two years, and back from when they used to stamp the return date in the back, quite a few books had hit 26 lends without falling apart yet).
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.
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...
The question was "how is this hurting authors" and your reply is to carry water for publishers?
> 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.
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.
The NEL gets a couple of sentences, the bulk of the ruling is about the CDL
If it was over the NEL, the case would have been over ~4 years ago when they shut down the NEL.
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.
As for authors, nothing changes here: libraries lent their physical books without paying before.
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.
The IA doesn't geofilter it's availability, and therefore it is subject to the laws of the country it does any substantive distribution to, same as every other website in the entire world.
[1] My favourite library branch in my town is, while associated with the city library system, partly volunteer-run and was consequently the last to computerise its lending system, and therefore kept on using the classic system until I think somewhere around 2010 or so, whereas the rest of the city library had already switched in the 90s.
I remember seeing books that had been lent easily over 100 times.
Not to mention a book can be rebound by a library if it's purchase price is high.
While I understand the plight of publishers, I also think digital rights favor them too much, atm.
It benefits the publishing megacorps on a different basis, authors make very little on book sales or loans.
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.
IA had the whole film online as bluray quality rip.
What's the difference between the IA and Kim Dotcom at that point?
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.
You could argue that donations amount to profit, but that's a line I'd be afraid to cross.
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.
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.
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.
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.
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.
Your idea is to eliminate the very concept of a library where ebooks are concerned.
You may want to rethink your argument.
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.
We're only talking about applying that to lending, which otherwise wouldn't exist, so I don't see the issue. And more importantly it's applying the rights you get with physical books. ...Come to think of it, what restrictions are being added that don't already exist in our current broken state of digital copyright?
Do you have a specific grievance with respect to imposing lending restrictions on ebooks to mimic their physical counterparts?
Your analogy alone is strained and doesn't serve this topic well.
> Yeah that’s totally fine.The metaphor of an ebook library is bad and illogical.
I contend that the information contained in the books and not the format they're stored in are what matters. People checkout books from libraries to read their contents, not to sniff the paper they're printed on.
> If you wanted to write digital-first copyright laws you wouldn’t invent a faux library. There’s better solutions out there.
Do tell of these better solutions that don't require waiting several decades for all the pre-Internet baby boomer octogenarian lawmakers and judges to die off from old age.
E-book lending is pretty much the only accessible option for people with sensory impairments. I think they're a larger portion of the population than writers, so why do writers' monetary interests overwrite accessibility concerns? Plenty of books aren't available in large print or audio versions; e-books are a great way for us to read those books. Big text is best text.
If you really, really want just pirate it. It's economically equivalent.
So you're against the existence of libraries at all? Since they provide free access to the fruits of someone else's labor? That is at least an honest position. I won't pretend to have any respect for it, but at least it's consistent.
People with impairments can also check materials out from the library. The existence of a library for some things does not mandate a library for all things.
> So you're against the existence of libraries at all?
I think that first sale doctrine strikes a great balance for physical goods. If you buy a hammer you can later sell that hammer. Or you can give it away. Or you can setup a little library where people can borrow it either for free or a small fee. Over time the hammer will degrade and some people might prefer a new hammer. The rate at which a hammer can exchange hands is severely limited by space and time. I live in Seattle and can not easily borrow a hammer from a friend in New York or London.
Digital goods are a different beast. Copies can be made instantly, perfectly, and effectively for free. There is no such thing as "borrowing" an e-book. There is only being allowed to make a perfect copy or not. Digital goods are not bound by space or time. A global library with infinite, instantaneous transfer of rights would limit sales to peak concurrent user count. This would obliterate economic incentives for producing new content which would be, imho, a catastrophic net loss for society.
Physical good and digital goods are extremely different. They can and should have different rules. Trying to force them under a single umbrella is sub-optimal for both.
If I were King my changes to copyright law would be related to duration. I'd shorten it from life+70 years to something like ~30 years with the ability to extend it an additional ~20 years with an increasing per-year fee. And possibly add some form of "use it or lose it" after just ~10 years. Or something along those lines. I am not King so I've not fully thought this through. However as someone who makes and sells proprietary entertainment software I have thought through the ramifications of global digital libraries with instant and infinite transferability.
"Degradation" is the conception publishers want to think of applying to their goods. Because they want an income stream worthy of items that perish in a matter of years, not decades or centuries.
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.
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.
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.
> 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!
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.
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.
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.
Not at all. Creators have no ihnerent rights that need to be balanced. Copyright is only granted with the argument that encouraging creation benefits society. That is the only argument for its existence.
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.
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
IA is physically holding a physical copy of the book, and then on a 1 at a time basis, allowing digital access to that physical book.
It would be like, purchasing a copy of the new york times, scanning it, and letting people online read it one at a time. Which would be perfectly legal except for the scanning and online. It paints the law as insane, not IA as flagrant copying.
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.
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.
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.
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.
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
Tragically, lopsided lobbying by Victor Hugo and cronies brought about the original 1886 Berne Convention. Back then outside of rarified publishing circles very few even knew what copyright was, and to the few who did it was of very little concern as copying anything was a mammoth technical undertaking—and when piracy did actually occur it was usually committed by one of their number—another publisher.
The net effect was there was no effective lobbying to counter the many excesses of Hugo's mob thus, unfortunately, they essentially all passed into international law. What we're witnessing now with the IA is another attempt to redress the imbalance only for it to fail yet again.
International law is nigh on impossible to change, combine that with the fact that publishers are guarding their windfall/golden nest egg like Fort Knox and thus we've ended up with this horribly unfair copyright mess.
Whilst I'd truly hate to see it perhaps if the Internet Archive were to succumb and go under it would be for the best. Maybe it will take a catastrophe of this magnitude to bust Publishing's stranglehold on the lobbying process.
We need a circuit-breaker to make politicians see reason and act in the best interests of the citizenry and perhaps the Internet Archive has to be the sacrificial lamb. That will only happen if the public is outraged enough to force politicians to act. That said, I'm pessimistic enough to believe the political climate is nowhere ripe enough for that to occur.
As mentioned elsewhere, the writing's on the wall for publishers, eventually balance will be restored.
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.
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.
And if that's wrong, is me lending a book to a friend wrong?
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.
You could have made a fairer point if the IA only disregarded the copyright of authors who are dead or something like 10 years past publication.
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.
This is as far away from "giving away infinite copies to anyone" as it could be.
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".
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
The lawsuit was filed when IA decided on it's own to increase the lending limit to 10000 copies of each title.
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).
You'll get way more ghost-written biographies from celebrities and hot takes from politicians.
A lot of people start writing books despite knowing those odds and outcomes.
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.
> 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.
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.
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.
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.
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.
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.
I only question that copyright is necessary to make a living. A musician can teach people how to play music, for example.
When you get down to it, this is just not a good sphere for deontological ethics.
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.
Perhaps diligent but conservative government archives should be run by your gray ideal of "boards of archivists and librarians".
But the Internet Archive was founded to be an activist organization, in deed and legal strategy. When you start, fund, or staff an archive, you can run it as risk-averse as you'd like.
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.
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.
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.
The fact that IA disregards copyright law and seems to have a "wait to be sued" mentality means that the donations end up feeling more like lobbying money and less like funding an actual Archive. I'd be totally fine with a CDL being codified into law, and I'd even be fine with IA's version of it, but it doesn't change the fact that Brewster is treating IA like an ideological mission now more than an Archive.
If you want to donate your money to it, that's obviously fine, but I think that it's important to be honest about it.
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?
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.
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?
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.
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.
The only thing that you have proven is that the IA accepts user uploads. That is it, end of proof. The only party possibly acting irresponsibly here is the user distributing links to what is claimed to be infringing content and not answering a simple question about reporting or verification.
“Watch me distribute what I claim to be ‘warez’ using a neutral file upload service that I will not answer questions about reporting or verification about! My going out of my way to make this available to you is not the issue, this evil host is the problem for existing!” belies either a deep misunderstanding of how the internet works (also kind of indicated by repeatedly using the word ‘warez’ in 2024) as a whole at best or a weird bad faith attack (also kind of indicated by accusing a stranger of “white knighting” for asking if you verified or reported your link to Super Mario Wonder) at worst. So I am a bit confused as to what is going on here
What has your experience been like trying to remove infringing content from that site other than you distributing links to said content on other websites? Your confidence that this is so clear-cut flagrant disregard for the law indicates that you must have engaged with them extensively in some way other than sharing these files with strangers online.
So does Google. As long as they take it down when requested, it’s 100% legal, nevermind any moral argument about hosting old software that’s not for sale anymore (HN used to be totally for that…). Some of the links you shared have less than 1000 views. That’s nothing.
Second link on the page. How is this warez distributor still online?
Calling the cops right now!
What I'm complaining about with IA specifically is that they're basically taking the MegaUpload approach of pretending that flagrant disregard for copyright law is totally fine, and then hiding behind vague data harboring laws and shouting "We're an archive so it's fine!!!!". Depending on how far you want to go, you can say that ThePirateBay or LimeTorrents is also an archive, but most people don't dispute that those sites are piracy.
If IA broke copyright law only in regards to something like AbandonWare, I wouldn't really be complaining, because that is something that should be archived and if it's truly abandonware then you're not even eating into potential profits, but that's not what's happening. Even the act of archiving copyrighted material that's still for sale is fine, but they should be operating within the bounds of the typical library archiving standards, which I don't think that they're doing.
As I said, if I'm aware of how easy it is to get pirated material on IA, then I'm quite confident that their staff is too.
This lawsuit came about in very large part because Internet Archive stopped linking to physical copies on hand during covid. That was the straw that broke the camel's back.
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
The law should be disregarded. Its stupid.
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.
> As long as they take down copywritten works when asked, they should be fine.
I think that's broadly true, but if they're aware of copyrighted material being distributed on their platform and they choose not to do anything about it, data harboring laws only go so far. If there are internal emails of employees noticing violations, and choosing not to do anything, then it's more like Napster or Megaupload, and less like YouTube.
In some sense, I think even ThePirateBay might be less guilty of distribution of copyrighted material, simply because ThePirateBay doesn't actually host any of the copyrighted material themselves, simply torrents/magnet links that point to peers that have it.
The thing is, I really don't want to shit on IA, and I don't even personally have much issue with people violating US copyright law, but my opinion on this really doesn't matter. The law is the law, if you break it you risk criminal charges or lawsuits. That's just kind of how society works, and I feel that IA's flagrant disregard for it is going to get them sued to oblivion, taking down stuff like The Wayback Machine with it.
Extreme hyperbolic example, and to be clear I am not actually accusing anyone of anything, but imagine that there were evidence that Brewster was using IA donations to fund a meth addiction. I don't think anyone would blame me for stopping donations to that because my intent was for the money to go to archiving, not drugs.
I don't think Brewster does meth, and even if he does I don't think that he's spending IA money to do it, but I do think he's spending IA money in pursuit of a lot of lawsuits that are a result of flagrant disregard for copyright law, at which point it feels more like I'm funding a lobbyist group, not an archive.
To be clear, I really dislike US copyright law, and I'm not even really opposed to people breaking it, but my opinion of of the law is somewhat irrelevant. The fact is that flagrant disregard for it at the level of IA means that lawsuits are going to happen. I don't really want to spend money on that, though obviously it's fine if other people want to.
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.
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.
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)
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.)
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.
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.
But looking at it, maybe this was the way the original suit was set up necessarily, and the lower court decision? OK.
IMO, properly executed CDL had/has a good chance of succeeding.
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.
"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.”)."
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.
It's not about CDL because it's very specifically focused on Open Library's specific implementation, Open Library. Nobody is suing Hoopla or OverDrive. The courts are openly acknowledging that by explicitly spelling out why this ruling only applies to Open Library and not to other well-known CDLs.
And the Emergency Library was just the concrete pressure pipe that broke the camel's back. Publishers and author's unions had reportedly been trying to negotiate with IA about OL all along, and EL was just the move that prompted them to stop playing nice and take it to court. The rulings don't need to focus on EL, though, because a ruling against the aspects of OL that are under contention would automatically apply to EL as well.
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!
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.
It takes a court decision to know if the law was broken or not. You apparently forget that the Wayback Machine itself breaks copyright laws and went to court over this many times. Most cases were settled by removal of infringing content but it doesn't undo the fact that infringements did actually happen.
The IA exists in the first place because Brewster Kahle isn't afraid to test what's possible and go to court if necessary.
You can take it or leave it. Or you can build your own archive... oh wait, you can't because it breaks the copyright law which is unacceptable for you.
It takes 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.
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.
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
> 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.”
I hope the likes of the Library of Congress are ready to shutdown their online services.
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.
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?
When you watch anything on Netflix, the movie is copied a few dozens of times at least, and even you make a few copies during watching it, but I don’t think that it’s legal to make a copy, I’m quite sure that it’s stated in their ToS. So the whole internet infrastructure, and computer manufacturer, and every user should be sued with this logic.
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.
See: https://www.npr.org/2022/11/09/1135639385/libraries-publishe...
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.
All that aside: if you have 1:1 physical books anyways, what is the reader accomplishing here? Just loan out the book.
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).
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.
Regarding "books made available for free": libraries allow to read books for free.
You can apply most of those arguments to a library lending out (distributing) physical books without authorization and causing same harm to the publisher.
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.
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.
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.)
(You're fine editing; I edited too, just for clarity).
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?
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".
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.)
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.
Except when it is. Laws are not computer code and it's precisely the court's job to interpret how they apply. This can include overturning previous interpretations. For examples see the recent ruckus about supreme court decisions changing what people interpreted as fundamental and accepted rights.
That's exactly what it's about. Publishers lost the battle of banning libraries, but have won and keep winning everything about digital books.
The end effect is that people have fewer liberties when it comes to digital things. Authors don't gain much. All the profit goes to the publishers.
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.
A library allows one person to read one book at a time. A digital library doing the same while using technology to make lending more efficient accomplishes the exact same goal.
We’re using precedent to override common sense and prevent digital libraries from effectively existing under the guise of protection.
Is that really suprising considering the general copyright climate? Do you link libraries would be allowed to exist if they were conceived of today?
I'd say probably not - but then "AI" seems to not be facing the same rules as regular people so perhaps if libraries could find a way to become "big" fast enough they could have a chance.
Some are now!
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.
Further: it seems weird to blame judges for applying what is in fact very straightforward law. Seems like your problem is with Congress!
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).
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.
The four-factor test does not require that all factors pass. It's possible for a use to completely fail some of the factors but still qualify as fair use on the basis of the other factors.
No argument that CDL failed "amount and substantiality of"; they copied entire books. (This is, of course, exactly what they do with everything else, and that's not been a problem before.)
IA's "nature of" argument could have been reasonable for the subset of works that constituted nonfiction/educational material (there is a long history of the copying of those such work for educational use); that wouldn't have sufficed for other works, but it was a reasonable point for the subset of works it applied to.
For "purpose and character", the use was not hugely transformative, but it was turned into a different and more accessible form.
As for "effect of the use", I would argue that CDL was not in practice a substitute for most uses of a book or ebook. A book that you borrow, and have to return, can sometimes substitute for owning your own copy, but not always; in practice, the users of libraries and the users of bookstores overlap but I would venture that the majority of people who borrow a book from the library would not typically have bought the same book if the library didn't exist.
Suppose one built an automated apparatus that remotely opened a physical book and held individual pages up to a webcam for transmission to you on a video call. That's technically making a copy in the course of its operation, but you're still effectively reading the original physical book, with some assistance. (The Supreme Court ruling against Aereo would sadly probably be cited to shoot down such a model. That was a sad ruling as well; the opposite ruling would have enabled an incredible variety of uses and possibilities.) The 1:1 CDL mechanism seems effectively equivalent to that.
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"
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.
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.
I'm genuinely not sure what you're saying here.
"[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.
I'm not sure one should be so certain on this. I don't intend to suggestion it is an intentional action, but I do find that libraries are inherently at odds with how most of copyright otherwise works. There is a tension in this relationship and one that is likely pushing towards libraries becoming illegal for new forms of media. A common sentiment I've seen, expressed for different reasons by different people, is that if libraries didn't already exist, they would be illegal to create.
This is part of the larger role copyright plays in society, from being used as a legal hammer to handle AI issues (as in, when all you have is a hammer, everything looks like a nail) to newer digital media being sold in a way where one can't easily share what they own (if you even can call it owning at this point).
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-...
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.
Replace Internet with a video cable, and the device with a CRT TV. No copy is produced in this case.
Would be curious to try this because the "ebooks don't wear" argument won't apply.
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.
the ever expanding rights that nobody voted for and that are passed by and for lobbies?
CDL: Controlled Digital Lending
NEL: National Emergency Lending.
Not only do they ignore robots.txt, they ignored all emails sent to info@archive.org from the actual domain in question which I owned, with a link to a URL on the domain asking them to remove it.
I can understand wanting to preserve some large website's article that is of public interest but this is just malicious / dangerous. It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content.
It took you two years and a lawyer to literally fill out a form?
If anything, the IA removes too much content and should only do the minimum required by law (and fight it even there where possible).
I just sent emails into the void per their request for more than a year: https://help.archive.org/help/how-do-i-request-to-remove-som...
After nothing worked I had to draft an official legal letter, which also took several months to get acted on.
>one man's seemingly fanatical conviction against the law
Reviewing the large number of amicus briefs on the Archive's side, from the get-go through appeals, refutes the idea this was a solitary crusade: https://blog.archive.org/2023/12/29/friend-of-the-court-brie...
Those supporting IA's position range from the American Library Association (the world's oldest & largest library advocacy group), to individual libraries of all kinds, to expert IP law academics, to public-interest advocates like the Center for Democracy & Technology or Public Knowledge, to fellow open-culture organizations like Wikipedia, Creative Commons, & Project Gutenberg. Also: lots of book authors, including those with commercial success & titles inside the IA's lending program.
The IA was in the leading position, sure – but taking the arrows for a very large group of like-minded organizations sharing a stance against copyright maximalism. Personalizing it as one man's radical crusade is odd.
>asked to stop… tried to open a dialogue
Saying no to the copyright maximalists, even through their claims of absolute control & threatened or actual lawsuits, has been essential in establishing the actual settled law around copyright.
What sort of 'dialogue' can be had when the sides have incompatible views of the law: one believing in a permissionless right to do an exact something (supported by reasoning & precedent) and another asserting an absolute right to prohibit that exact same thing (supported by other reasoning & precedent)? Each side needs to enact their beliefs then resolve it in the courts.
HathiTrust - a major consortium of university libraries – was the named defendent in an earlier lawsuit by some of the same copyrightholder interests with regard to Google Books scanning. (It's also an ally of the Internet Archive in this fight.) Should HathiTrust have rolled over when "asked to stop" scanning by rightsholders? Absolutely not: they won in court & on appeal.
If Sony hadn't appealed the Betamax decision to the Supreme Court, VCRs & everything since that let people record their own copies of TV programs could've been "illegal". A mere 'dialogue' with TV broadcasters or moviemaker trade associations couldn't have done anything: the issues had to be ruled on by legal authorities.
>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.
I agree that the overheated rhetoric from both the plaintiffs (about giant but never-proven sdamages) and defendants (about how central these principles are to IA) may have created that impression in some coverage – but the idea this was ever existential for IA, in legal costs or potential damages, is pure paranoid fantasy.
As a non-profit, the IA files detailed form 990s with the IRS showing income & expenses. I challenge you to find any hint of legal costs changing other operations in the years since the lawsuit was filed (2020) and appeals launched.
I suspect, but have no inside info, that much of the costs were borne by other advocacy & legal organizations/donors that wanted to pursue a ruling on these particular essential issues. That is: this battle was fought with resources targeted for this program and these legal principles, not resources diverted from other programs.
As part of private settlement with the plaintiffs in 2023 – not any court monetary judgment against it – the IA agreed to make some undisclosed payment but ALSO had permission from the plaintiffs for IA to continue to pursue appeals (like the one just ruled-upon) on the issues important to IA, at no risk of further damages.
That's hardly the "scorched earth" plaintiff behavior implied by some hyped coverage imagining an IA bankruptcy, or other threats to its ability "to survive".
This was always a dispute on some copyright principles; it will be a loss to the public if IA's vision of format-shifted digital lending is ultimately ruled illegal, but no impact to IA's other long-established programs.
Finally: this may not be the final chapter & ruling on these issues. Sony had to appeal all the way to the Supreme Court before getting the Betamax ruling in 1984. Google had to appeal all the way to the Supreme Court before getting a ruling that API reimplementation could be fair use in 2021. I don't know if IA will judge it as worthwhile to appeal. But they might! And before those other historic final appeals, the preceding judgements seemed pretty definitive and bleak for the ultimate victors.
Maybe it shouldn’t. There is value in asking if there is a better home for those projects.
Be kind. I think it was that dang fellow who said it. Yip here it is: https://news.ycombinator.com/newsguidelines.html
In another life I'd be clever with you and say something to the effect that you should educate your own self, and read them. And then we would have our very own little reddit subthread here for our selves, and it would be my fault, and mine alone.
> Be kind. Don't be snarky. Converse curiously; don't cross-examine. Edit out swipes.
It's a lovely thought.
Oh no, won't someone think of the rights of the poor poor publishers :(((
How? By your argument, this was already clearly illegal. What did the precedent change?
I feel like this is not a very complicated point I'm making, but I'm happy to keep expanding on it.
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?)
One can argue that the Internet Archive would be effectively useless if they strictly followed copyright law.
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.
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?
On a long enough timescale, the value starts increasing again. C.f. graffiti from Pompeii, Akkadian bookkeping tablets, etc.
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.
There's a better chance of you winning every lottery on Earth twice in a row than copyright terms being shortened in this century.
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
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.
I mean... they did just scan a load of in-copyright books and then let anyone download them with no restrictions. What did they think was going to happen?
I think you have to be particularly extreme and naive to think that would have been ok, legally or morally.
"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.
It's because of two primary points made elsewhere in the ruling.
1. Copyright law tolerates lending by libraries in the case of print books because those books eventually wear out. Digital copies, on the other hand, arguably do not wear out. Therefore, the court does not think that what is tolerated for print books should be tolerated for digital books. It does not address the fact that print books can be lent out hundreds or maybe even thousands of times before needing to be replaced, whereas some publishers are treating e-books as "wearing out" after about 25 reads, at which point the library has to renew its license.
2. Publishers have established a very profitable licensing arrangement with libraries for e-books, and CDL undercuts it. One could argue that if CDL had been an accepted fair-use exception from the beginning of digital lending, such a market would have never taken off, in which case the "CDL undercuts the market" argument would not have had the same weight. But here we are, like it or not, in a time when most of the major publishers have established these licensing terms, and so the court observes that a market exists that can be undercut.
I don't think this is entirely accurate when it comes to copyright law. The law extends back centuries and digital books only appeared within the last couple of decades. The ability to lend a book (by libraries or any owner) without committing copyright infringement is much more closely-related to the first sale doctrine (which has been around for at least a century in U.S. law in one form or another) than it is to a book's durability or lack thereof. Recall what the opinion says about the underlying rationale for copyright law: let the authors have a period of monopoly so they'll have an incentive to keep writing. If the first sale doctrine doesn't defeat that rationale in the case of print books then the same logic should apply to digital copies; it's the first sale that matters, not how many times the owner of an individual book can then lend that book to someone else. Granted, as in your second point, publishers can limit lending of digital books through license agreements or other digital rights management, but at that point you're in the realm of contract law, not just copyright.
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.
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.
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.
The lawsuits started when they removed that restriction during covid.
That the implications of this idea have the “wrong” winners and losers is a separate matter.
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.
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.
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.
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.
Presumably, these items can now flood Western and other markets because they're out of patent and or the original manufacturer has gone bust, not so copyright/IP due to its long expiry date.
Like for instance, Australia's project Gutenberg tends to get things a few years before the US version because of local legal differences.
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.
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.
Yes, absolutely. Insiting on business models that depend on scarcity when that scarcity doesn't actually exist is absurd and the costs to society are astronomical.
> Despite everything I've said here until now I'm not against creators receiving fair recompense for their efforts.
No copyright doesn't mean no copensation, it just means that compensation cannot be enforced on a per-copy basis. Creative works, including for-profit creations, have existed long before copyright.
But let's also not pretend that creators receive fair compensation today.
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.
That's what shadow libraries are doing, as are many other older & less prominent models of information distribution. These projects should be proliferated & promoted to challenge the dominant propaganda that people can only do things the U.S. government says they can.
Which jurisdiction do you have in mind? Russia? China? There are few others that don't have similar copyright laws to the US or won't bend quickly to US demands.
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...
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
The Bikeshedding term is apropo. The post was about the need for a license that would allow for IA to operate (the "nuclear reactor"). Rather than tackle that, which I guess is too hard for you, you pick the bike shed ("the home viewing license"). And also act like an adolescent about it.
Grow up. When you rent a movie you don't get PPR's. That's the "nuclear reactor" in this example.
> You certainly are free to watch the movie yourself, but, beyond that, your rights are very limited by law. In particular, you do not have the right to show the movie to "the public." In most cases, doing that requires a separate "public performance" license from the copyright owner.
https://my.wlu.edu/general-counsel/answer-center/copyright-a....
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.
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.
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.
- 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.
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?
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.
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?
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.
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.
> 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.
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.
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.
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.
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.
Discussion: https://news.ycombinator.com/item?id=39908676
Projects such as Anna's Archive are going to be much more critical than ever.
I look forward to all the new AA mirrors + contributions that are going to come from disgruntled archivists.
And everybody in the libraries/archives space going on downloading sprees. Most of us have personal illegal libraries. We just don't share them.
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
The benefits to society stopped outweighing the costs a long time ago. There is no natural cost to making a digital copy of a work, or using an idea. Nothing in nature stops the spreading of good ideas. It is only by fiat that such things are restricted with the force of Government.
Clearly creators of works need to be encouraged in their efforts, they need to be paid. Far too many creators are not fairly paid, with a rent seeking entity utilizing the asymmetry of the market to abuse them. This needs to end.
The excess profits for those rent seekers are an unlegislated, and hidden tax upon the rest of us. This also needs to end.
The political use of copyright to control debate and limit free speech needs to end.
What's Legal isn't the same as what is Moral. It's time to re-balance the law to more fairly treat all involved.
Seems like this is the publishers planned approach going forward, nonstop lawsuits to henpeck the IA to death.
From five months ago, still relevant: https://old.reddit.com/r/DataHoarder/comments/1bswhdj/if_the...
Discussion: https://news.ycombinator.com/item?id=39908676
"[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...".
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.
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.
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...
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/
Generally speaking, when you request a site, barring a compelling reason to believe otherwise, the assumption must be that accessing the content is legal.
How does it not? I don't get it... why are physical libraries in the clear if it's still a 1:1 borrow?
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.
"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.
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
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.
> 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...
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.
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.
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
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.
<https://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._Straus>
The first US Public Library dates to 1848 (Boston).
<https://en.wikipedia.org/wiki/Boston_Public_Library>
The first public libraries ever dates to at least the 4th century BCE, with one known instance begun by Clearchus in Heraclea, on what is now the Black Sea coast of Turkey.
<https://research-bulletin.chs.harvard.edu/2017/09/11/clearch...>
More recently, and post-classical / Roman times, there is still the 1447 example of the Malatestiana Library.
<https://en.wikipedia.org/wiki/Malatestiana_Library>
Public libraries significantly pre-date the First Sale doctrine by several measures.
I wonder if the absence of such is why authors in Canada are entitled to royalties from public libraries?
Michael Geist might be a good source to look to for specifics of Canadian law, though AFAIU the Canadian royalties programme is defined under Public Lending Right:
<https://en-academic.com/dic.nsf/enwiki/154625>
<https://en.wikipedia.org/wiki/Public_Lending_Right>
Geist ... has apparently written on this: <https://www.michaelgeist.ca/tag/public-lending-right/>
* 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.
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.
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.
That's a different claim than "book publishers would have tolerated CDL without it."
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.
1) It's not "simply"
2) Moving to another jurisdiction makes things harder, not easier. You'd have to move all the servers and you'd lose almost all easy ways of receiving funds and donations. Ask websites on the brink of legality how much fun payment processing is (adult, piracy, IPTV providers,...).
Except international copyright treaties exist, which makes copyright enforcement effectively extraterritorial.
I’m not saying copyright is not enforced internationally; rather, IA’s perspective on copyright might be viewed more favorably in other countries.
> 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.
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...
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.
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.
Except the whole reason this case exists is that publishers think they have found a clever way around the first sale doctrine.
By my take, the only correct action any right-thinking person can do is civil disobedience and work to archive, anonymously and for the public, as much written works as possible. This is an absolute theft of the commons, and particularly heinous.
The Internet Archive must cost a fortune to run. There's no way they're going to get enough donation money if they only provide old website archives. Their "online library of everything" gambit was an attempt to boost their donations by attracting a wider audience.
They'll have to diminish the capabilities of the wayback machine in some way. I think they'll replace domain-based search with some kind of LLM-based conversational frontend, grabbing some funding from OpenAI or someone in the process.
It's too bad. I've been scraping the wayback machine ever since they did this stupid "pandemic library" and I noticed that they were allowing full movie and game rips with zero moderation. I'd like to have gotten a more complete archive, but what I have now is pretty good for my own uses. If you did the same, good job. If you didn't, well, I did warn you over and over ( https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que... )
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.
personally, if you disconnect the rest of IA from the "CDL" aspect and look at the lawsuit this way, it seems to me like another instance where from legislative perspective, owning a digital copy of media remains inferior to owning the physical one. the affordances of the digital technologies has been used as a way to exploit the laws' interpretation.
AI is shaping up to be the next frontier of this matter, but we don't have a large player (with community focus and not big tech money) that could be tested as a scapegoat just yet.
IA does plenty of other awesome things - this felt like a waste of time and money.
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
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).
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?
What size of storage would you need?
I think the legalist approach IA is taking was always doomed, but the enormous resources at their disposal allowed them to do a lot of collecting that other efforts have & will continue to benefit enormously from.
So digital library, lending books over Internet is much better than a physical library.
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.
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.
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.
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.
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".
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.
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.
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.
Edit: HN discussion: https://news.ycombinator.com/item?id=32743325
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
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.
> [...] 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
* 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.
So this is about stripping people from their rights regarding to books made with a new technology.
Not how our retina, the optic nerve, visual cognition or visual recall work.
But you don't lose your recollection of the book contents.
* 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 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.
> 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.
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.
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.
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.
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.
Libraries would be illegal if conceived of today. If this weren't digital it would be a violation of first sale doctrine.
> "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."
"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."
Just shows how far forward we have progressed. Maybe book burnings next to prevent resale?
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.)
Probably not all that legit, but arguably thats where we're headed anyway :/
Doing their duty?! The progress of civilization?!
Lol, no thank you. Bold of you to try and become the arbiter of all human knowledge in this dystopian future you envision.
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.
IA could have implemented a situation where book pages could be read with the same copy limits local libraries implement and then point to where the book is sold or point to users local library where book could be checked out....
Instead IA pursued a strategy that would fail...and for what to put the IA mission in harm's way
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...