My wife is a librarian. The elephant in the room here is that patrons are shifting toward a preference for digital distribution. However, Fair Use has not caught up. So, libraries end up spending a large portion of their operating budget "leasing" ebooks from publishers at extraordinary markup over the print copies. These leases are only good for so many "check outs" -- often as few as 4-6 -- after which point, the lease must be renewed at a price that can be 2X or 3X the cost of the print book. It's downright predatory.
IA may have gone beyond pushing the envelope and well into stepping over the line on this one, but it is an important legal challenge. I don't think IA will or should win, but I do hope that their loss shifts the needle of public opinion a bit toward actual Fair Use.
I’m glad to see this near the top of this post. The reality of what’s been happening to libraries in the shift to the digital age keeps getting ignored by everyone. For those of us who grew up only being able to afford reading books by borrowing from libraries, I’ve been dismayed to see so little discussion around this. Like other commenters have said, libraries wouldn’t exist if they were to be proposed today and I think that points to a fundamental problem with legislation.
What a library is today is so different. I'm not sure I would leave my kids alone in one like my parents used to. There was always the homeless element, but now there's rampant drug use in and around, anti-social behaviour is ignored or tolerated and it's not really about the books (digital or paper) but the free internet to troll your social media. Libraries used to be accessible jewels of knowledge, now they're generic community spaces.
Unfortunately, I don't believe there are many such places. If one is living in their tent, car, or similar situation, there are very few places where one is even allowed to exist peacefully without spending a few dollars, let alone take care of one's hygiene.
Libraries are one of the precious few places where one is not charged on entry or otherwise expected to buy something. Even public parks are increasingly hostile to the homeless, but often no real alternatives are offered. And I think that's a shame.
My city started a program to train librarians to administer narcan and the city distributes narcan to libraries [0]. I can't imagine Chicago is has a larger homeless population than most other cities (as it's very affordable here).
This isn't generally true, I am in the Boston area and only the Main branch is anything like this, all the tens of other libraries are safe places where a kid would be fine for hours.
yup i remember using the sound proof booths they had for patrons at my library and not hearing the announcement that the library had closed got locked in and only noticed when they librarians started turning off the lights to leave.
An unfortunate consequence of internet piracy is that noncommercial activity has been pushed out of mainstream policy. The library was way more crucial when I couldn't just illegally pirate a book on the internet. In turn I was way more willing to fight for it.
> mainstream policy [is...] an unfortunate consequence of internet piracy
no, this is obscene degrees of victim-blaming here. the modern copyright regime predates the internet being a major commercial vector for anything by literally decades. the DAT tape wars were 80s, the VHS/Betamax time-shifting wars were 70s. taping off the radio was 60s.
obviously as the noose tightens, more and more activity becomes "criminal", so the "criminal activity" stats probably do go up over time, but that doesn't inherently reflect some change in social mores as much as the legal framework changing out from underneath it. and that was not initiated by anything to do with the internet - this really dates back to the "taping off the radio" days and the blowback from studios who didn't like that, and retrenched in the 80s and particularly the 90s.
For popularity VHS was the 80's I think: "JVC released the first VHS machines in Japan in late 1976, and in the United States in mid-1977." and took a few years to take off widely.
Interestingly enough, VHS was developed in secret at JVC: "However, despite the lack of funding, Takano and Shiraishi continued to work on the project in secret. By 1973, the two engineers had produced a functional prototype.". The development of blue LEDs has a better story. Does Japanese culture encourage secrative development?
> libraries wouldn’t exist if they were to be proposed today
And it would be more or less irrelevant that they didn't, because the massive amount of information made voluntarily available for free on the internet vastly outweighs the initial few centuries of libraries' existence by several orders of magnitude.
> I don't think IA will or should win, but I do hope that their loss shifts the needle of public opinion a bit toward actual Fair Use.
I find it extremely bizarre the people make posts like this, essentially conceding that controlled digital lending should be legal, but then claiming that they shouldn't win. Why shouldn't they win? They're doing something reasonable, meritorious and not at all clearly prohibited.
IA seems to be arguing that society needs a way to archive and access all printed works.
The library model is one that has a long history and is therefore helpful as a way to accomplish that mission. The “controlled” part of controlled digital lending is only there as a way to try to appease rights-holders (who would otherwise argue in court that there should be no lending, only licensing (or not) under their complete control).
The unfortunate thing that happened is they decided upon themselves to freely and openly distribute copyrighted works at scale which is clearly prohibited and confirmed by precedent. This is the point that they should lose. No library is allowed to reprint books in full and simply hand them out to people who ask.
> which is clearly prohibited and confirmed by precedent
The "precedent" (pro copyright enforcement) has had unintended consequences to prior precendence (freedom of press...the literal printing press). Ignoring the battlefield of the limits of free speech is not constructive. Talking about past legal cases is not going to help in rolling back the dystopian eventuality.
> No library is allowed to reprint books in full and simply hand them out to people who ask.
It's obvious that they should not be allowed to do this perpetually or under normal circumstances. Why should they not be allowed to do it temporarily in an emergency? What existing case specifically addresses this?
It's not what case specifically addresses how it should be handled in an emergency but rather that there is no exception in copyright law for emergencies like a pandemic. If there's not an exception allowing a library to make unlimited copies during an emergency, they can't do it. It can be argued that there should be one added to the law but it doesn't change the fact that the IA clearly violated copyright laws when they lifted their Controlled Digital Lending restrictions.
I believe the issue was that they weren't doing controlled digital lending. They allowed an unlimited number of people to check out an individual book digitally & then took donations for doing so. The original envision, where a book can be checked out digitally (and then is reserved until "returned", and mare available again), is way more defensible.
> They allowed an unlimited number of people to check out an individual book digitally
You're referring to the emergency library, which only operated during COVID. The claim in that case is that it should be allowed because it's temporary and can only operate during an emergent crisis, thereby limiting the impact on the market for the works.
> & then took donations for doing so
Why should that be relevant unless a donation is required to get a copy? It seems like a bad faith argument to try to ensure that no one offering a free service to the public can solicit donations to continue operating it.
> The original envision, where a book can be checked out digitally (and then is reserved until "returned", and mare available again), is way more defensible.
> The claim in that case is that it should be allowed because it's temporary and can only operate during an emergent crisis, thereby limiting the impact on the market for the works.
While personally I think that this is a powerful goal, how would that work in practice? Who determines what an emergency is? Once an emergency is declared, does everyone get the legal ability to seed torrents of copyright works? Or stream them directly to the public? If the copyright holders get upset about that then they will be motivated to downplay emergencies which puts them in opposition to the common good. What safeguards would need to be in place?
Who determines what is an emergency is the judge. If you guess wrong you lose, but some cases are clearer than others. If a global pandemic that shuts down the economy isn't an emergency then what is?
> If the copyright holders get upset about that then they will be motivated to downplay emergencies which puts them in opposition to the common good.
The entire premise is that it's temporary and therefore not likely to negatively impact them. But it's also obvious that media companies have a preexisting perverse incentive to over-hype any form of danger, so a countervailing force in the other direction would be a welcome balancing mechanism.
what did they do with the donation money? if they did something charitable with any extra profit i think it should be ok, because then all there is is good-intentioned activity.
It’s not normally the courts’ job to change the laws. People need to get Congress involved. I doubt very few people write to their representatives about fair use.
The entire question is whether any change to the law is necessary. The courts created fair use to begin with and it has been codified by Congress in the statute for decades. Congress doesn't need to change anything if this is already fair use, so why shouldn't it be?
What is codified as legally fair use is extremely limited, and the limited changes to account for digital copies has mostly favored publishers. The terms of fair use should be updated and broadened.
What is codified as legally fair use is extremely squishy. It's the kind of multi-factor balancing test that lets the courts do whatever they think is right.
The problem is that's also the sort of thing corporations abuse to set bad precedents, by constantly nibbling away at the edges with expensive lawyers, and filing suit against defendants with far fewer resources.
This is why "according to corporate PR, what the defendant did was bad and wrong" should always be viewed with heavy skepticism. They're always going to choose a case where they can try to paint the defendant as the villain. And yet, we know who are the ones twirling their mustache.
Fair use is a defense against infringement, but what we could really use is copyright reform to enable building the digital library of alexandria without it being burned down immediately by infringement claims.
For this to happen, libraries might need something like:
1) first sale doctrine for ebooks
2) explicitly legalizing the distribution (and non-infringing use) of digital copying and transcoding technology with substantial non-infringing uses, similarly to the analog domain (see: photocopiers, VCRs, etc.)
This is your friendly reminder that, if libraries didn't predate copyright, they never would have existed because copyright owners would have argued it's a flagrant violation of copyright. Even given that libraries are clearly legal, copyright owners still try their utmost to make them illegal, because they're seen as lost purchases.
If I were only allowed to change one thing about copyright, what I would change is not the length of copyright terms, but the treatment of digital works. Kill this stupid pretend game that you don't buy anything digital, you merely lease it, and therefore the creator gets to jerk you around to their heart's content because contract law supersedes all. No, make a digital sale a sale, and then we get to have the First Sale Doctrine kick in. And hopefully we get to sit back and enjoy the schadenfreude as they repeatedly go to SCOTUS as the printer manufacturers do with some new harebrained attempt to work around First Sale Doctrine and SCOTUS goes "lol, nope, doesn't work."
But truly, fuck the ebook lending practices. It's downright predatory and it just makes me never want to actually buy an ebook (unless it's from one of the few publishers that goes all-in on DRM-free ebooks).
what's your timeline on libraries? i guess you're counting ancient, private collections. public libraries happened well after copyright was established and just had to go to court and make their case. first sale doctrine indeed saved the day.
the more interesting case for me is that xerox was allowed to exist, and libraries fought successfully to allow their patrons to use xerox machines within the library (1973 Williams & Wilkins Co. v United States). this freedom may not have been established had it been any other circumstance than a medical journal suing the medical doctors xerox'ing the papers for their own research. the public attitude was "bro, lives are on the line here, let the doctors make copies" and we got the four factors of fair use outlined in the 1976 Copyright Act
If you do not consider the ancient, famous libraries to be public, Wikipedia puts ~1600 as a first date of modern public libraries. While copyright has a first occurance date in the 1700s, in some locales much later.
Either way it seems public libraries were around at least a century before copyright, but by other measure, in some places, much longer.
> if libraries didn't predate copyright, they never would have existed because copyright owners would have argued it's a flagrant violation of copyright.
Before the advent of digital media, the meaning of copyright could be cleanly derived from the words it is compounded from.
Any publisher arguing that to lend a purchased item to another person infringes on their exclusive right to produce copies, would have been laughed right out of the courtroom.
Copyright is ownership of information, data. All information is bits. All bits are numbers in base 2. Therefore copyright is ownership of numbers.
You can even figure out how big the number is.
digits = ceil(bits * log10(2))
For example, a 20 kiB picture is just a number with 49,321 decimal digits.
All numbers already exist. All intellectual work is just number discovery. Drawing? Music production? Editing source code? Fancy ways to enter numbers into computers.
Ok, I’m following you now. But there are two limits you’ve put on yourself:
1. This is limited to digital representations of information (which let’s be up front about: is the overwhelming majority of information in 2024, but the point is it’s not all)
2. What is actually stored is not a number. Below the KB are bytes and below the bytes are bits, but below the bits are (typically) on/off states. 1 and 0 are just convenient ways to reason about bits. They are not the underlying truth.
> This is limited to digital representations of information
All information is bits and all bits are numbers. How the numbers are represented is just an implementation detail. One could print a book containing all 50 thousand digits of the numeric representation of the 20 KiB picture I mentioned. That number is the picture! It's just represented in a very inconvenient form.
It may be hard to believe but there exists software which does exactly this. Paperkey, for example, is designed to create printouts of OpenPGP secret keys so that they can be kept offline. It quite literally dumps out the bytes as rows of numbers and you print them out. Imagine reading hexadecimal characters from a paper and entering all 4096 bits into the computer one by one by hand via text editor. I've actually done it. Yes, it's as nightmarish as it sounds like. Yet it works.
The point of this argument is to show how utterly absurd copyright is. It logically reduces to numeric ownership and illegal numbers. It's quite literally illegal for you to write down a certain number on a paper and give the paper to someone else. I think that's just delusional.
It just can't be refuted. If the copyright monopolists try to argue that the number isn't the picture, they only hurt their own interests in the process. Such an argument automatically creates a channel where infringement of their copyrights may occur. It's illegal to copy the image directly but it's okay if I transform it into a number first and then copy it? That makes no sense whatsoever. They would never make such a self-defeating argument. Therefore they do believe that the image equals the number and that they have monopoly rights to the number.
> They are not the underlying truth.
I believe they are. All of information theory is bits. On/off states is just a digital mechanism humans created to store the information. If you group the bits, it becomes possible to encode larger and larger amounts of data. And any group of bits forms a number pretty much by definition.
Maybe it's time for libraries to focus on the physical aspect... and education, for example teaching people how to pirate digital copies without getting malware.
For ebooks, pirates can provide the public library service.
The economics of it seem quite different for rare books that might be checked out once a year versus popular books that are in constant demand.
It seems like for academic research, storing a large collection of unpopular books is what matters. Making best-sellers available to many local readers is a different function.
> My wife is a librarian. The elephant in the room here is that patrons are shifting toward a preference for digital distribution. However, Fair Use has not caught up. So, libraries end up spending a large portion of their operating budget "leasing" ebooks from publishers at extraordinary markup over the print copies. These leases are only good for so many "check outs" -- often as few as 4-6 -- after which point, the lease must be renewed at a price that can be 2X or 3X the cost of the print book. It's downright predatory.
> IA may have gone beyond pushing the envelope and well into stepping over the line on this one, but it is an important legal challenge. I don't think IA will or should win, but I do hope that their loss shifts the needle of public opinion a bit toward actual Fair Use.
Very unlikely that would happen and libraries would inevitably pay the ultimate price in the long run in a period where they're under attack and most at risk of extinction from all fronts (politicians, governments, publishers, copyright cartel, list goes on all hate libraries and this would be a huge win for those groups as a sign to cripple them even more).
Whatever happened to the idea of legal peer-to-peer lending? If I buy a book, it's my property to give away or resell. Why is it any different with an ebook?
Because you aren't buying an ebook, you are licensing a copy of it. The terms of the license you agreed to were that you will not distribute or re-assign ownership of the material you are licensing.
If you want that to change, you'll need to get congress to do something about it (lol).
We as a society very urgently need to ban the practice of "selling" licenses, but in the meantime we as individuals can and should practice civil disobedience.
DRM (if any) is one difference. Circumventing copyright controls can open you up to civil and criminal penalties.
Not all digital books are DRM protected. I recently listened to Cory Doctorow’s audiobook The Bezzel and at the end he tells you that you have the right to loan or sell your copy of the audiobook.
While I don't really agree with US copyright law, I think the issue is that it's relatively easy to make infinite copies of ebooks. It's basically impossible to guarantee that if I sell you my digital copy of The Colour of Magic that I don't have it anymore.
With a physical book, that's much easier; I simply don't have the book anymore. I could technically photocopy the entire myself and have the book as backup, but that's a pretty time-consuming process that most people aren't going to bother with.
The "solution" to this could be some kind of DRM, but of course that has its own can of horrible and problematic worms, not the least of which the fact that central signing servers suck.
I had an idea years ago of trying to have some kind of blockchain-based DRM but I never really figured out how to even get started with it so I never did anything with it. Still, I think it could be worth someone giving it a go.
> I think the issue is that it's relatively easy to make infinite copies of ebooks.
That's the case regardless of any DRM or even what the source material is. You can OCR a physical book or type the contents into your computer once from any source you can read with your eyes and then make infinite copies thereafter.
The thing that prevents this is that making unlimited permanent copies is copyright infringement, the same as it ever was. Making the unlimited copies is now cheaper than it was a century ago, but that has nothing to do with where or how the infringer gets the first copy.
Never mind breaking DRM, there are services that will OCR a book for around $15. For most books it would cost less to OCR than to buy a single physical copy, from which an infringer could make an unlimited number. Putting this out as some kind of significant distinction between physical and digital copies is just looking for an excuse for a money grab against the new technology.
Wait, no, you do not just get to claim OCR is as easy as "right click copy, right click paste".
Even if OCR weren't kind of crappy, which is absolutely is, you still have to physically take a scan or photo of every page, potentially assemble them, load it into the OCR software, then distribute it.
Yes, there are services that will OCR a book for some amount of money, but that's still more work than just copying a digital file. I would still need to package and ship the book, get out my credit card to pay, unpackage the book when it's shipped back.
It's categorically more effort, pretending otherwise is just outright dishonest.
None of that matters when the number of copies you can subsequently make is unlimited. The amortized cost of the one-time scan is entirely negligible.
This is the same reason DRM doesn't prevent everything from being on The Pirate Bay. It's not that breaking it is always trivial, it's that you only need one person to do it once. It doesn't matter if it costs one cent or a thousand dollars because neither of those is enough to be a deterrent.
In general breaking digital DRM is trivial. Or only mildly challenging as in the end you can get projector and camera... With text OCR and some automated editing should be good enough. And LLMs might make it even simpler.
The right to copy is what copyright deals with. You never had the right to buy a book, copy it, and give away or resell the copy.
edit: the "right" we have to copy them from device to device I think is just granted by the official interpretation of current law by Library of Congress lawyers. It would be entirely consistent to say that when I sell you an ebook, you get to download it to one machine once, and that copying it to a different machine is a violation.
I don't think so? I was saying that the library buys a paper book, scans it, and destroys the original, leaving them with a digital copy. I think (seriously, IANAL) that conversion process is legal because you start with 1 copy and end with 1 copy. The thing the Internet Archive is in trouble for is taking 1 copy and giving it to multiple people at once (effectively, start with 1 copy, end with >1 copy) which is probably a legal problem.
It's hard to make headway in copyright law trying to reason like a regular human being.
Copyright is an artificial constraint on something that is otherwise constrained only by cost of raw inputs and machine labor (even back in the days of setting the lead by hand)... And in that sense, not very constrained at all. The whole thing is an artifice that tries to encourage creation of novel work by couching monopoly on ideas in property law.
This leaves you with a quantum beast that mostly runs on "vibes." To your example: no, illegal, because you made a copy, right there, when you format-shifted. Or yes, because you preserved the total number of instances. Or no, because you moved a tangible format that is easy to preserve singularity on to a hard-to-audit, easy-to-copy format, thus greatly increasing the risk of copyright fiolation. Or yes, because you actually recorded the fact of the position of the ink on the paper in your original copy, and you can't copyright facts ("this is a historical record of what my book looked like"). Or...
Copyright is a ball of string and chewing gum held together by a few explicit laws and many, many centuries of precedent. It's very hard to predict what the end result of a lawsuit in novel territory will be, because it really does come down to "Which faction do the judges think should have more power today?"
I hope a greater and greater percentage of the population comes to understand this.
Currently the people putting in the bigger volume of “work” are the “we want the money” faction. Those who claim they own every concept that they touch. Because they will get more money if they win they treat it as both a war and a job.
Some legal-decision makers put in a smaller but more personally costly amount of work to fight against them in that war.
And a few in the general public put in work to try to change public opinion so that either the war can end peacefully (the “we own everything we touch” faction dwindles and get phased out) or we can get enough people to join the legal fights so that we can win the war.
Every time we become complacent they gain ground. Every time we make a stand they try to erode it from all sides. It is the active and vigilant effort despite them that makes forward progress possible.
This was about the "National Emergency Library" which ran for a while in 2020. After the publishers came after them, they returned to only having 1:1 lending.
From other comments here noting that digital copies are often both more expensive and allow only for a limited number of total lends to happen before invalid (4-6 being noted), it sounds like even getting a physical copy, converting to digital and securing or destroying the physical copy to allow a single digital copy to be checked out at a time would be useful for libraries. Just having a digital copy with the same lending characteristics as a physical one sounds like a win over that.
That is exactly what the lawsuit against the IA seeks to establish as illegal.
Almost everybody this thread mistakenly believes that the lawsuit is strictly about the unlimited lending that has long since been suspended - it is not.
The lawsuit was provoked by the unlimited lending, but takes a two-pronged approach - it attacks both unlimited and 1-to-1 lending.
As far as I can tell, the book publishers are merely seeking to have 17 U.S. Code § 108, subsection (g) enforced.
The law[1] makes it clear public libraries are permitted to make one digital copy and distribute it (lend it) once at a time on separate occasions. Subsection (g) outlines that distributing that one copy multiple times simultaneously forfeits the protections granted by this law.
§ 108 doesn't apply here, in either direction. See footnote 6 of the lower court decision, where the court notes that the Internet Archive doesn't rely on § 108, but instead on § 107 covering fair use, and also notes that § 108 doesn't restrict fair use by libraries: https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...
The reason IA doesn't rely on § 108 is "When a user requests a copy
of an entire work or a substantial part thereof, the library or archives must first make a reasonable effort to determine whether a copy can be obtained at a fair price. If it can, then no copy is allowed to be made." https://www.copyright.gov/policy/section108/discussion-docum...
What you're describing, "public libraries are permitted to make one digital copy and distribute it (lend it) once at a time on separate occasions," is what controlled digital lending refers to, and it would be cool if it was overtly authorized by statute, but it isn't -- the original CDL whitepaper ( https://controlleddigitallending.org/whitepaper/ ) relied on fair use instead. The trial court found that it fails that test, so unless IA wins on appeal, it doesn't exist.
this law is out of date and silly. one of the primary purposes of making digital copies is to have infinite copies, and everyone knows that.
[Request to delete that law submitted]
I think this is a lot less clear than just a yes or no. Imagine you have a library where you can't touch the books so you have to look at them through glass and turn the pages with some type of robotic arm. That probably wouldn't be an issue. What if you replace the glass with a computer monitor? So you are sitting in a room next to the book you are viewing. Then what if you extend the wire and sit in the building next door? What if you replace the wire with the internet? At what point did you start infringing on the copyright?
Imagine a video rental service where you can go in, and they will play whatever movie you want on a DVD player in the back room. How long can that wire be between the DVD player and the person watching before it starts being copyright infringement?
Aereo was significantly different, because there was no copyrighted material being rented. They were renting out servers, and the servers made per-user recordings. Aereo got super screwed over too, because the supreme court said they were 'basically' a cable company, and then they weren't able to get cable company style mandatory licensing either.
> Imagine a video rental service where you can go in, and they will play whatever movie you want on a DVD player in the back room. How long can that wire be between the DVD player and the person watching before it starts being copyright infringement?
I imagine it would be when you put a Y on the wire so that two people can watch from two different monitors.
nope, aereo didn't have a Y in the wire, still found to be infringing.
of course this gets to the core of the problem: rights on paper are one thing, but they are easily taken away by a plaintiff with money. if you don't have the money to defend the right, you don't have the right (and in fact stand a good chance of getting the right taken away for everyone else too).
Sounds like they had bad lawyers (or bad judges). Shouldn't be simultaneously possible to be a cable company and not.
But as IA isn't to my knowledge doing controlled digital lending with broadcast television, is there any plausible argument they would be found to be a cable company?
I’m not sure what you’re asking - they lost because the “we just host personal antennas for subscribers, it’s 1:1 between antennas and subscribers with no Y therefore it’s not rebroadcasting” was found to not be a viable argument, yes, that’s exactly what I’m saying.
Like this is a weird “that’s not true, weren’t they actually…” that recites all the same reasons I just said they were found to be infringing?
Do you want my interpretation of the law, or what I think it should be?
Let me put it this way: You should very much be able to rent a DVD from across the world and control it by wire, and the only limit we need to prevent abuse is how often that DVD can change hands, since micro-renting could cause legitimate problems.
Libraries are able to loan under the first sale doctrine, that is to say that the copyright holder exhausts their right to control the distribution of a copy after the first sale. However, they retain a monopoly on the production of copies.
The issue here is whether this counts as the production of copies and/or whether that production is fair use.
For example, CDs are digital. To play a CD that you own, the player is going to create a copy of the song in memory in order to decode it into an analog signal that can be played on speakers. Then it's going to discard that temporary copy, leaving the CD as the only permanent one. It seems pretty obvious that either that sort of temporary copy doesn't count or that it should be fair use.
But then how is it any different if the temporary copy is on your tablet instead of your CD player?
yes, but apparently the law hasn't been updated to allow for that, and legal people get confused by it. what is it that triggers the process of reviewing and revising/removing an outdated law when an entity breaks it? it's obvious that there could be thousands of laws that were made, that are now out of date because of advances in technology or scientific understanding. so isn't there some regular procedure for, when someone sues someone, allowing for the opportunity to consider if the particular violated law is still applicable? maybe if it hasn't been applied in a while and/or was made a long time ago?
Agreements of what? I could have sworn the first sale doctrine means that I own the book, as there are for sure no EULAs that I agree to when purchasing nor opening to page 1 of a book. Copyright, for sure, but not an agreement that could be violated
I would also take issue with the "absolutely" of your assertion about OCR. For some things, yes, for crazy fonted works, no, but the devil's in the details
I believe the idea was that a publisher could have a contract with libraries in order to rent them digital copies that imposes terms against other ways of getting digital copies. (Whether that should be or is legal is a separate question that I'm not going to answer; as ever IANAL.)
It makes me incredibly sad to see the Internet Archive continue to argue that a DRM system (which is what controlled digital lending is) is a liberatory technology whose usage should be expanded. Libraries should stop lighting money on fire buying expensive short-lived licenses from publishers, and start referring patrons to LibGen, Anna's Archive, Sci-Hub, etc.
That's not a legal argument; you're arguing that crime should be officially encouraged by libraries and the Internet Archive. That's essentially an argument that they should commit suicide in protest of the entire idea of copyright.
I'm not saying that speciously. If it's fine that they encourage the public to go to shadow libraries, there's no need for the public to go to shadow libraries; because they've then become de facto legal and the libraries might as well distribute the material directly (or aid with access and provide resources for the shadow libraries.) If it's not fine that they encourage the public to go to shadow libraries, when they do it they've called their own distribution of copyrighted materials into question by implying that they do the same thing as shadow libraries.
DRM is an overlay over copyright which gives copyright owners some security that they'll be able to hold on to most of the distribution of what they own. It's really a pretense, because you can have DRM without copyright. DRM is just a weak, autonomous enforcement layer being bolted on. That pretense is the only thing that's keeping IA online at this point. Otherwise, there would be no excuse to allow their distribution of copyrighted works at all.
If you want to fight copyright, fight it directly, don't gamble the IA for it. The giant multinational companies that own the vast majority of copyrights are begging you to stake the entire IA on such a sucker bet.
It's not a crime to inform patrons of the existence of shadow libraries.
> That pretense is the only thing that's keeping IA online at this point. Otherwise, there would be no excuse to allow their distribution of copyrighted works at all.
> If you want to fight copyright, fight it directly, don't gamble the IA for it.
I agree with you. There is no (legal) excuse for the National Emergency Library, digital lending DRM is just a pretense, and they shouldn't have gambled the Archive on it. The battle will be won by shadow libraries, who by their extra-legal nature are better equipped to fight copyright directly.
> It's not a crime to inform patrons of the existence of shadow libraries.
That is indeed a crime: "promotion and incentivisation of crime", one of the major ways of starting an organised crime in fact. Do you want IA to be declared a criminal organisation?
This is a huge stretch. If I go to my local library, I can take a book off the shelves, walk over to the photocopier, deposit some coins, and make a copy. Is that promotion and incentivization of (and profiteering from) copyright infringement? I can check out a copy of the Anarchist Cookbook, or any number of other books that detail and arguably glorify crime of various forms. Is that promotion and incentivization of crime?
Libraries are repositories of information, including "forbidden" information.
> It's really a pretense, because you can have DRM without copyright. DRM is just a weak, autonomous enforcement layer being bolted on. That pretense is the only thing that's keeping IA online at this point. Otherwise, there would be no excuse to allow their distribution of copyrighted works at all.
Well sure there is, because it also works the other way around. You can have copyright without DRM, and enforce it not via some weak and easily bypassed technological fig leaf but with the full force of the government. A patron who makes a permanent copy even though they've claimed and agreed to have destroyed their temporary one would be liable for copyright infringement. There is no reason the law couldn't still prohibit that while allowing temporary lending.
Copyright holders would have no more or less trouble enforcing this than they do any other infringing copying that happens in private, like when the user downloads the same book from a shadow library in a foreign country. The difference is that the local library has paid the copyright holder for an official copy, implying that they haven't done anything wrong, and neither have any patrons who don't illicitly retain a copy. Why should people doing nothing wrong have any liability?
Do you think the authors and editors should be compensated for their work? Charging for use seems to be a pretty straight forward way to reward the people who create good books.
No. Copyright gives the right to control how a work is reproduced. In the case of printed books, we've arrived on the first sale doctrine which still does a pretty good job of spreading costs over all users. It's not perfect, but wear and tear help spread out the costs.
Digital books are different. It's quite possible for there to be one "sale" in the first sale model. That doesn't do a very good job of sharing costs among the people who read the book. Nor does it do a good job of rewarding the people who produce good books that are in much demand.
I'm quite happy with all of the digital "renting" schemes that effectively "destroy" the digital work after I've consumed it. Why? Because I want to pay the least amount and that means spreading the costs as broadly as possible. That's just fairness.
Yes, it controls reproduction, but not all uses are a reproduction. The law also has zero concerns for "spreading costs" and it's why "fair use" and libraries can even exist in the first place.
Further, simply because you give out copies of your work for free, does not mean you suddenly lose copyright protection. Costs and copyright are two entirely separate issues, which is why open source licenses can exist. Your attempt to convolve these two facts leads to an incredibly messy interpretation.
Digital books are not different in any meaningful way. You have the right to sell a digital copy. Once sold, the user who purchased it, has a right to use that copy in any way the see fit. Including lending it to others, selling it second hand, or even reading it out loud as part of an event.
The article makes it perfectly clear, this is not driving costs down, so while you may be happy with that outcome, that's clearly not what's actually occurring. So I'm genuinely surprised you've gone to this much effort to advocate for something that demonstrably fails to produce the outcome you're after.
If the plumber wants to write such a contract and the customer wants to sign it, sure. In many big cities, there are toilets that are pay-per-use. So, in essence, the market has already embraced the idea you mock.
Digital distribution is already the norm, it's already superior to all other technologies. The elephant in the room is copyright. It's the cause of all the problems and limitations we presently encounter.
It makes no sense to even speak of "leasing" what's actually trivially copyable data. That's working within the conceptual framework of monopolists. There is no "cost", any costs associated with digital distribution can and will be so efficiently distributed among all users they might as well be zero. All the monopolists need to do is get out of our way.
The only solution to this problem is abolishing it all straight up. Just get rid of copyright. It's holding us all back.
The "National Emergency Library" was obviously a huge mistake, and I'm surprised that IA continues to defend it. The problem is, their online book lending is far from the most important part of the Internet Archive, and by continuing to fight for it, they risk losing everything, including the entire rest of the archive which seems to me to be far more important.
The Internet Archive has become the de-facto default location to upload anything rare, important, or valuable, and a terrifyingly large amount of history would suddenly blink from existence if it were brought down.
You are directing your ire at the wrong party. Hachette has nothing to gain from continuing to pursue this lawsuit, the only possible outcome (as you correctly state) is the world becomes a worse place. The behavior they object to has already stopped, and they've got a judgment to prevent it happening again. Hachette could drop enforcement of the judgment, both parties can dismiss the appeal, and no one loses anything.
Hachette's owners see an opportunity here to destroy a public good, and they are taking it. Hachette are the bad actors trying to destroy what you find valuable, not the IA.
> You are directing your ire at the wrong party. Hachette has nothing to gain from continuing to pursue this lawsuit, the only possible outcome (as you correctly state) is the world becomes a worse place.
Hachette obviously benefits from teaching would-be unlimited "lenders" a lesson. Even anti-DRM, "buy my books only if you can afford" authors were against this hare-brained lending scheme because the IA didn't even bother to buy a single copy of the books they were "lending".
The blame squarely falls at the IA's feet; being an idealist doesn't give you the rights to delve into illegal behavior, regardless of the righteousness of your cause or the depth of your conviction. If the world is better with an org in it, and it jeopardizes it's own ability to remain a going concern, it's clear to me who is culpable. "Too good to die" doesn't exist.
> The blame squarely falls at the IA's feet; being an idealist doesn't give you the rights to delve into illegal behavior
This way of thinking is the reason why we are losing so many great things. Laws are created by people to support a society we want to live in. When laws no longer sever the society, then the society must rise up and change them. Like with any bug, fixing it early is cheaper than fixing it later.
> it's clear to me who is culpable
"Look what you made me do. If you hadn't acted up I wouldn't have had to destroy you."
>> The blame squarely falls at the IA's feet; being an idealist doesn't give you the rights to delve into illegal behavior
> This way of thinking is the reason why we are losing so many great things. Laws are created by people to support a society we want to live in. When laws no longer sever the society, then the society must rise up and change them. Like with any bug, fixing it early is cheaper than fixing it later.
Let me put it bluntly: the IA went about pursuing that change in stupid and impulsive way, and their actions may very well accomplish nothing while causing us to lose more "great things."
"I'm going to pretend the laws I don't like don't exist in order to try to change them," is an activity for people with little other responsibility and little to lose.
In hindsight, if the IA wanted to try something like the "National Emergency Library," they should have set up an independent entity to take the fall and contain the damage if it didn't work out. And since they didn't do that, they should probably have tried really hard to settle and fight another day than go down in a blaze of glory.
You already live in one. Publishing house shareholders get most of the money, even for online books. If you pirated the book and donated to the author, they'd actually get more money.
> You already live in one. Publishing house shareholders get most of the money, even for online books.
Doesn't this apply to every mass-market creative endeavor - software engineering included? There a whole lot of machinery sitting between {code|book} author and the paying consumers, leveraging efficiency of scale and demanding a pound of flesh in return. Agents, editors, lawyers, proof readers, marketers, book cover artists, sales people, type-setters, and requisite admin support staff all of them necessary to publish and distribute books at scale. If you think authors don't need an entire industry behind them, try sifting through the self-published dreck on Amazon.
And it is pretty clear who would be first to exploit system where authors don't have copy rights. That is Amazon to start with followed by all other big companies who can effectively distribute the works.
The vast, VAST majority of money that an author makes is from their advance. It is exceedingly rare for a book to sell even enough to cover that advance, and even rarer for it to have sales strong enough that the author sees meaningful, life changing residuals.
>> I don't want to live in a society where authors don't get paid, so the laws are just fine.
> The vast, VAST majority of money that an author makes is from their advance. It is exceedingly rare for a book to sell even enough to cover that advance, and even rarer for it to have sales strong enough that the author sees meaningful, life changing residuals.
This is how author advances would work in a world without copyright: authors would self-publish their books, and there would be no advances. If the book proved to be popular and successful, all the major distribution platforms would "pirate" it and pay them nothing. No conceivable DRM would save the author's income, because the platforms can afford to pay people to manually key in the work.
And why should I even offer you an advance if I’m not going to make any money off your book. Heck, why should I invest any money in editing your book for that matter.
I’m not sure it’s exceedingly rare for an author to not make some beer money on top of single dollar advances but it’s not a full-time job for many authors. It mostly works to support the day job or as a hobby.
But many authors might as well self-publish today. I mostly have.
It’s a fair point. Most of what the IA does is probably technically copyright violation but I’d argue there’s a qualitative difference between making copies of public websites, software that publishers have abandoned, and other things in that vein—especially given they historically bent over backwards to stop sharing copyrighted material if someone got upset— and sharing digitized copyrighted books Willy-nilly given there was already precedent that you just can’t do that.
As I understand it, they're pretty good about taking your site out if you ask them to. That's not quite the letter of the law on copyright, and potentially leaves them open to lawsuits, but few web site publishers are really going to pursue them once they've taken the material down.
If they'd applied that same level to the books, they might have avoided this mess.
> Just to be clear, it is your position that the IA's Wayback Machine and abandonware archives should also not exist, right?
No, I fully support these missions. Both have defensible fair use protections and do not try to break new legal ground with flimsy justifications. I wish the IA were little more aggressive about not retroactively applying robots.txt rules on archived content.
It's hard to reconcile how overly careful they are with the Wayback Machine compared to the carelessness of unlimited lending. I am livid they risked their priceless archives for book piracy - that's not a great hill to die on.
Book piracy or not, IA seems to be the only source for many programming books from the 2000s. (Everyone’s go-to pirate library has a much less comprehensive collection of those.)
> It's hard to reconcile how overly careful they are with the Wayback Machine compared to the carelessness of unlimited lending
Indeed. It's maybe worth reflecting on the apparent conflict there. What info are you missing, that could explain the conflict? The IA folks aren't crazy, but they are opinionated and willing to take action where others might not, and the world was in a very crazy state at the time the decision was made. Consider some sympathy for the people leading the project you feel so passionately about.
But they could issue a mea culpa, and move on. Admit defeat, pay a token fine or settlement, and keep their donations to preserve the rest of their archive. Why don't they cut out the rot, to preserve the rest of the archives. I know they had a mission, or some goal, or whatever, but it failed - it failed a long time ago.
It can be right or wrong, i don't know. I want organizations to fight the battles that gain us new rights and freedoms. I know that they have a lot to lose here though, and they shouldn't risk it.
Concretely, I was a big individual donor to the IA until this lawsuit. I support their mission, I love their work, I help (technically and financially) other organizations like local museums and non-profits handle their archival work. This is something important to me, and I really want their archives to persist.
I stopped donating to the IA - and won't resume - until this lawsuit is resolved. I don't want to donate to the book publishers, and it looks that's going to be the outcome of their entire funds.
>It's hard to reconcile how overly careful they are with the Wayback Machine compared to the carelessness of unlimited lending.
Is it really? The cynical side of me wonders if it just might be intentional. What if this is a nonprofit analogue to VC monetization? Do you dislike an existing law? Create a similar but legal service you know other people will appreciate, use donations to undercut competitors and become the defacto monopoly, ride the network effect to a large crowd that basically relies on you, then rugpull by tying their narrow, legal use to your crusade for a different legal system by infecting their data with illegal material and declaring the whole thing must sink or swim together. Now your users have to pay you to fight your policy crusade or they lose their already legal resource they value much more, and you can use your legal half as a moral shield to get approval from anyone who only had the time to read the headline when the prosecution inevitably shows up at your door. All you need yo hold the almost-grift together is to lie by omission about who instigated it all.
Stupid laws that hurt society shouldn't be defended, and those that defend such laws simply because "it's the law" are not worthy of being taken seriously.
If the law were stupid, I'd expect a more robust argument about how it's stupid in the IA's appeal. They are not arguing that.
I have plenty of issues with copyright law as it's currently written and wholeheartedly support copyright reform. That's very different from any one party unilaterally suspending copyright "because of COVID"
Of course the laws are stupid. I dont care what IA said to defend themselves. They could have ineffective counsel. The entire concept of copyright in this historical moment is antithetical to a productive society. It is rent seeking, parasitic behavior. It is unsustainable and completely unenforcable in the digital age. The only mistake IA made is they were upfront about what they were doing. People pirate books all the time. It is trivially easy and there's virtually nothing publishers can do to stop it. And when it comes to law enforcement, the effort it would require to enforce the laws as they are written is obviously not worth it. If the laws are only enforced on good faith actors, what do you suppose that incentivizes? Reform is not possible; corporations control the legal system. The entire paradigm needs to be done away with.
> doesn't give you the rights to delve into illegal behavior
... Illegal as defined by the highly paid lobbyists of the trillion dollar copyright monopolies? It boggles my mind that such "laws" are even considered legitimate.
> "Too good to die" doesn't exist.
Tell that to Wikipedia and several other organizations which put a stop to stuff like SOPA/PIPA with a single day of blackout. I want to see them try to destroy Wikipedia over copyright nonsense.
Might want to read the comment I'm responding to:
"being an idealist doesn't give you the rights to delve into illegal behavior"
I find it obvious that there are situations when illegal behaviour is justified, perhaps even virtous or obligatory. I'd like to know why "being an idealist" is considered the only relevant factor.
As for copyright, I'm of the opinion that there exists no spirit world, and hence no spiritual labour, which means that immaterial rights lack foundation.
I mean 'The Right to Read' sets up a story environment where Copyright/IP is a form of tyranny. I view any form of overly broad copyright as a form of government enforced tyranny itself. This can be anywhere from terms that last lifetimes. The lack of counter enforcement against actors bring false claims. And allowing very generic/simple systems to be copyrighted thereby enacting massive rent seeking behavior across most of the population.
Authors have no trouble existing without copyright at all, let alone some weaker version of copyright.
Meanwhile, vanishingly few authors make a living at it, and not a lot more make beer money. It’s a pursuit that barely pays as it is, yet many books are written.
Patents and copyright are a government granted right to a limited term monopoly, which is unique in that it is a right that had to be explicitly granted, because it was not assumed to be an unenumerated right, and the authors of the US constitution were generally opposed to government granted monopolies.
It is also unique in that mere legislation could reduce the term of this right to an arbitrarily short duration. That's not how any other right works. Also unique is that other rights can't expire in your lifetime, and that the right is assignable.
Ownership of a work and monopoly are not the same thing. Monopoly implies control of an industry or a class of goods. Owning the rights to one book doesn't mean I own all books (which would be a monopoly on books), any more than owning a house gives me a monopoly on housing.
Copyright empowers Congress to make a law giving you a limited term monopoly on your words or other creations. Patents do a similar for an invention. Both expire. Until they expire you can buy and sell or rent (license) these rights, and you can bring a civil case to enforce them.
Neither are like, say, a monopoly on a commodity like milk, which can be illegal or against regulations. Search for "patent" and "monopoly" and you will find innumerable actual lawyers explaining the monopoly nature of patents better than I can.
Could you find a good example, as I don't know what I'm looking for. On "copyright" and "monopoly", presumably, not "patent". Patents could legitimately create a monopoly on a good, if there's no other way to make that good.
Copyright is a monopoly on material expressions of ideas, based on the firm belief that there is a spirit world and spiritual labour and the owning of spirit stuff. That's a lot of pretending.
So what if "The Right to Read" communicates such a message? If the Internet Archive gets a notice to shut down, I doubt anyone involved will suddenly start reading Stallman, then walk away as if they no longer had a company to shutter. The only people who matter in relation to the future of the Internet Archive are the ones who will be enforcing the law and I doubt most of them have read or will ever care to read "The Right to Read".
Everything you allege here is misinformed as to the current state of the lawsuit and stakes.
You demonize Hachette et al (4 major publishers) as seeking to destroy a public good. In fact, they've already settled with the IA, as of last August 2023, in a manner that caps costs to IA at a survivable level and sets clear mutually-acceptable rules for future activity.
You imply IA would dismiss the appeal if the plaintiffs "could drop enforcement of the judgement". In fact, there were never any assessed damages, the parties have already reached a mutually-acceptable settlement per above, and despite that – in fact, as part of the settlement! – the IA has retained the right to appeal regarding the fair-use principles that are important to them.
>On August 11, 2023, the parties reached a negotiated judgment. The agreement prescribes a permanent injunction against the Internet Archive preventing it from distributing the plaintiffs' books, except those for which no e-book is currently available,[3] as well as an undisclosed payment to the plaintiffs.[25][26] The agreement also preserves the right for the Internet Archive to appeal the previous ruling.[25][26]
>Because this case was limited to our book lending program, the injunction does not significantly impact our other library services. The Internet Archive may still digitize books for preservation purposes, and may still provide access to our digital collections in a number of ways, including through interlibrary loan and by making accessible formats available to people with qualified print disabilities. We may continue to display “short portions” of books as is consistent with fair use—for example, Wikipedia references (as shown in the image above). The injunction does not affect lending of out-of-print books. And of course, the Internet Archive will still make millions of public domain texts available to the public without restriction.
Hhhhuh. Thanks a lot for this info, this isn't anywhere near as bad as all the commentary around the lawsuit I've seen lead me to believe. I'm now confused by the apocalyptic tone of the article, I read it as being an existential threat to the IA ("last-ditch effort to save itself," "things aren't looking good for the Internet's archivist," "A extremely noble, and valuable, endeavor. Which makes the likelihood of this legal defeat all the more unfortunate."). I still don't think Hachette has much to gain here, but you're absolutely right that I was way off the mark.
> I'm now confused by the apocalyptic tone of the article
Be not confused. Lunduke's blog is a sensationalist tech tabloid. Every article is like that -- elevating mundane disagreements in open source projects to huge proportions, without doing nearly enough research to be called journalism.
This ruling is, in fact, fairly unprecedented in how it allows the IA to appeal even after a settlement. It's also very permissive in allowing uploads of books with no e-book on sale.
Yeah, this is largely my position, with an added dose of understanding (2020 was a weird year; many mistakes were made by many people). But Hachette & Co. are the ones acting with intent to harm now so I think they deserve the ire now.
We reasoned. We begged. We screamed at IA not to do what they did, that this would be the inevitable outcome. This is like someone left a bear trap on my front lawn and because I should have the right to do whatever I want on my property I refuse to listen to the crowd of people telling me not to stick my dick in the bear trap. The controlled digital lending was already completely illegal but the IA was making headway on making it a culturally accepted practice. Then they burned it to the ground. The loss of the IA would be one of if not the greatest Internet-tragedy in history, but the fools in charge of it don't deserve anyone's sympathy.
>Hachette has nothing to gain from continuing to pursue this lawsuit
They do: Legal precedent.
IA made themselves into an easy, prominent target by doing something everyone else agreed to not do via Gentlemens' Agreements(tm) and precedents set by lesser transgressions, so now they're reaping what they sowed.
The book publishers stand to gain legal precedent that doing what IA did can and will result in legal consequences severe enough to ruin you.
> The Internet Archive has become the de-facto default location to upload anything rare, important, or valuable, and a terrifyingly large amount of history would suddenly blink from existence if it were brought down.
Here's the related discussion: Stop using the Internet Archive as the sole host for preservation projects | 87 points by yours truly | 27 days ago | 27 comments https://news.ycombinator.com/item?id=39908676
> a terrifyingly large amount of history would suddenly blink from existence
One response to that is the "The Offline Internet Archive" [0], which includes software to crawl Internet Archive collections and store them to a local server [1].
So apparently a 20 TB HDD can be purchased at around $250, plus perhaps $30 per hdd slot with a computer (I just recall a number of this range from calculating years ago how much it costs to have storage at home), making it 2 million dollars—without any redundancy, so maybe twice that.
On the other hand you can already have 24 20TB HDDs for maybe $7000 (with required other hardware), and that's almost 0.5 petabytes. I imagine it would be able to archive all things a single person cares about. Now only if there was a way to interconnect these smaller storage pods to each other..
For the redundancy at this scale, perhaps tape storage is interesting. Though the prices for high density tape seem to not be low enough to be public, and IBM scam their customers by advertising storage capacity before compression.
I always thought the physical IA locations like the one in San Francisco should offer a kind of "internet cafe" setup so you can plug into an ethernet port and get gigabit+ downloads without going over the internet at all.
To be somewhat diplomatic, how much good does your data hoarding actually benefit anyone but you and maybe some friends? Maybe it will help some leak into the world but the contents of your hard drive are pretty ephemeral.
Counter examples exist: the NASA moon landing tapes were lost, but a copy was found in a horde in Australia. Dr Who episodes, lost by the BBC, have been collected from fans' recordings, etc.
There's some difficulty in connecting those who want the info with those who have it, but if the search gets enough publicity, it can work. This seems like a problem that could be solved with software.
Oh for sure. I don't think of my digital hoarding as anything I'd endeavor to share publicly. I didn't mean to phrase my question in the sense of so I could share what I hoard with others. It was sort of two separate thoughts that yeah, came out sounding like they were attached together.
While I agree that the book lending is only a small portion of the value provided by the IA, it makes sense that they're making a stand here. Losing this battle would establish precedent that format-shifting legally aquired copies of media is not protected under fair use, which would be disastrous to preservation efforts of all kinds going forward.
This has nothing to do with format shifting at all. The IA's normal book-lending service works that way, but the "emergency library" allowed more copies of a book to be "borrowed" than they actually physically owned.
This is straight-up piracy, and there's a 0% chance of it being legally justified.
This might kill the Internet Archive as a legal entity in the US if the outcome is particularly unfavorable, but LibGen, Scihub, Z-Library, Anna's Archive etc aren't going away.
> This is straight-up piracy, and there's a 0% chance of it being legally justified.
Agree to disagree. Copyright has worn out its welcome when it is locking up culture for life + 70 years at a time [1] [2]. The Internet Archive could archive and maintain these works in cold storage (both physical and digital), only to make them public again 100-200 years from now, but that would not be keeping with "Universal Access to All Knowledge." Disk and bandwidth is cheap, and the planet is big.
>Copyright has worn out its welcome when it is locking up culture for life + 70 years at a time [1] [2].
This isn't a "disagreement" with the GP. Piracy is a legal concept, and they were speaking in legal terms. Whether or not copyright has "worn out its welcome", it continues to be a legal reality in the US.
Except the IA did not establish the NEL as an act of civil disobedience or call for changes to the unjust existing copyright laws when they did it. They instead told themselves and their patrons that there was a "national emergency" exception to copyright law, when no such exception existed. Should one have existed? Of course. But it did not at the time. The IA continued to assert that the NEL was legal within existing copyright law, not that it was a principled act of civil disobedience against an unjust law. They were trying to Jedi mind trick a "national emergency" exception to existing copyright law into existence.
If you want to challenge an unjust law in a democracy, you can work within the system to change it, or you can engage in civil disobedience, publicly accept the consequences, and put your freedom on the line as a way to bring popular attention to the unjust law. That is the mechanism of civil disobedience against unjust laws. The whole point is that you must risk something in order to go around the system and challenge an unjust law. Everyone in America has at least one law they consider to be unjust, including some laws that I'm sure you believe are very just and would be very upset if others started to violate them in the name of justice.
Birmingham banned Martin Luther King, Jr. from participating in public protests and a Circuit court judge signed off on it. When MLK said he would protest anyway, the whole point of the civil disobedience was that MLK would be arrested for it. He was right that the public was outraged at the enforcement of this unjust legal order and called for change. What the IA did was like if MLK put on a mask to go protest, and when the police tried to arrest him, he said that he wasn't MLK.
A global pandemic is a national emergency (I'm unsure how this cannot be argued considering the efforts both the US government and the Federal Reserve engaged in). The Internet Archive is at risk because of their actions, which can be argued to be in good faith during extraordinary times based on the events that occurred at that time [1]. You may not agree with regards to intent and the definition of good faith, but that is for the judicial process to resolve. If the Internet Archive legal entity is forced to dissolve, are legal participants on the other side of the civil suit prepared for the fallout from such an outcome (the "public outrage" you mention)?
I would argue the NEL is an example of fair use when the entire world is locked down [2] [3] [4], but I'm not the one who is defending the case. You're upset they are seeking a favorable interpretation of law through the judicial process. That isn't a Jedi mind trick, and to call it as such is silly ("The fair use right is a general exception that applies to all different kinds of uses with all types of works. In the U.S., fair use right/exception is based on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work.").
Power concedes nothing without a demand. Better to ask for forgiveness than permission.
> You're upset they are seeking a favorable interpretation of law through the judicial process.
I am not upset they are seeking a favorable interpretation of law through the judicial process. I am upset that they literally bet the entire organization on a questionable and novel legal theory, without acknowledging that they were putting the rest of their mission at such risk. You quoted some Wikipedia to me, but fair use is notoriously a minefield. You, me, the IA, and whoever edited that Wikipedia article all probably agree on how we think copyright law and fair use ought to be interpreted. But it seems like I am the only one of us who accepts that Big IP has a lot of influence over copyright law and that most judges don't think like us.
It would be one thing if the IA said, "We know we will be sued for this, and while we believe we will win this case and that the law is on our side, there is a very real possibility that we will not. If we lose, this may bankrupt our organization. However, we have a strong moral imperative to serve the people....." Or if they wanted to do a legal challenge to settle the law, they make one book from the most litigious publisher available for two people, record the entire thing, and send it to the publisher's lawyers. It goes to court
But they didn't. They responded to any criticism that this is risky in our current judicial system by saying that you can only believe it is risky because you don't share our views on what copyright ought to be.
> Better to ask for forgiveness than permission.
That is maybe decent advice for dealing with parents or a boss, but not with the legal system. There is no forgiveness in copyright law. You don't escape liability just because you thought you were acting in good faith.
> If the Internet Archive legal entity is forced to dissolve, are legal participants on the other side of the civil suit prepared for the fallout from such an outcome (the "public outrage" you mention)?
As much as I love the core of the IA's mission, there will be no public fallout from this if the IA has to dissolve to pay its debts. I wish there would be, but I seriously doubt this would break through in our current political climate. This is one of the reasons I was so upset, because the IA does not have the political capital to pull off a civil disobedience project. And they didn't even try! Where is Brewster calling on Congress or the President to get a digital library exception added to any one of those bills or executive orders that were being passed around the national emergency?
> When one has the means and opportunity, unjust laws should be challenged.
Sure, but do they? They're a nonprofit, and as such depend on donations. Their donors might or might not be aligned on these two relatively orthogonal issues.
I'm even sympathetic of their desire to challenge the quite absurd status quo of controlled digital lending, with bizarre skeuomorphisms such as simulating "books wearing out" after a couple of lending cycles, while at the same time being more restricted than physical books (even though I don't necessarily agree with their means of challenging it).
But even for me, I think the risk is too big, and I'd feel much more comfortable with a different (maybe related/affiliated, but ultimately separated as legal entities) non-profit organization for each concern.
To say nothing of the fully legal digital services (and physical checkouts with inter-library loans) that many public libraries in the US and I assume elsewhere offer.
That may be but it exists today for the most part. And librarians at research libraries were grumbling at licensing costs for digital a couple decades ago. Not they were happy with physical subscriptions either.
Seriously, I don't understand how people can defend copyright at this point. Maybe at the beginning it was implemented properly. Maybe in theory it's a great idea. But - surprise, surprise! - it's been broken by corporations. Life + 70 years? gtfo.
Because people like the results of copyright, IE access to large amounts of resources including books, music, movies, and software that would not exist if there were not protections to ensure that the creators received compensation for their works.
I reject your hypothesis that nothing would exist if copyright didn't exist.
I wonder how humanity managed for so long without it, if that were the case. Or did we just not produce art or culture until we established copyright as we know it today?
Without copyright we would probably make mostly low-cost/small-scale art, of the type that can be achieved by a single person, and probably would not make big expensive collaborative projects like $100m+ blockbuster movies which are hard to bring into existence without a strong profit motive.
Copyright has (for better or worse) co-evolved with the technical ability to create effectively infinite copies of works, so I don't think we have any empirical data to prove or disprove this.
Right, we have no evidence that copyright helps promote the creation and distribution of arts, culture, or technology, and yet we restrict peoples' freedom to proliferate culture and art in the defense of it.
For recent or popular work maybe that kind of works yeah, for everything else though... I challenge you to find legally even early 2000s less popular movies or books, let alone older work.
The current copyright system is pretty terrible at keeping track of older content and the few ones that still manage to make it through have questionable rights holders.
Yeah it's pretty easy. I just went to a list of movies from 2001 by box office, number 100 was actually a cult classic now so skip that and I see the Tailor of Panama which is a less popular movie, steaming on Amazon https://www.amazon.com/Tailor-Panama-Pierce-Brosnan/dp/B000X... and i can get a copy on DVD with interlibrary loan. The Shogun miniseries from the 1980s has some renewed interest since the new version and it's not streaming, but you can purchase a DVD on a bunch of places and once again, I can get it through my library.
Also worth mentioning that free licenses like Creative Commons, MIT, and FOSS licenses like GPL are also all copyright schemes, as unintuitive as that might seem.
The removal of all copyright also means the removal of licenses that mandate free sharing and access. Two-way street, in other words.
Those liscenses, the GPL in particular, use copyright to fight copyright. The alternative to copyright is not necessarily a total free-for-all, you could legislate a replacement that works like the (A)GPL or CC BY(-SA). Require attribution and share-alike without restricting usage or distribution.
GPL uses copyright to ensure that software that makes use of GPL licensed code will be free (libre).
Even in a world without copyright protections, the printer story ( https://www.gnu.org/philosophy/rms-nyu-2001-transcript.txt ) would still have occurred, but there would be no way to ensure that it won't happen again with GPL licensed code.
Without copyright, open source code could still be locked up behind paywalls and compiled binaries. It is copyright that ensures that the law is there to force people to release their code.
The hypothetical legislation to ensure the GPL or CC-BY-SA works is copyright.
You could replace the license with a "contract" in the terms and agreements section to achieve the same effect? Contract law would apply, so I have no idea.
That's true, but I actually disagree with the basic principle of copyright. I don't think that telling people they can't engage in certain creative acts encourages people to engage in creative acts.
I don't necessarily disagree with the basic principle of copyright. I just am unconvinced it's an attainable long-term goal. It seems to me that copyright in a capitalist society is bound to end up like this.
I don't believe in copyright at all, even in principle. The closest I can get is that it should be within the power of the state to grant temporary monopolies on things that it wants to encourage. But there is a basic conflict between freedom of expression and the fact that expressions can be copyrighted.
However, the idea that IA is going to defeat a copyright industry worth hundreds of billions of dollars is laughable. If you're going to fork between government choosing to end copyright and government choosing to end the IA, the IA is 100% dead.
Characterizing people who don't want the IA to risk all against copyright as copyright-supporters is not fair at all. It's like calling people Assadists who didn't want to invade Syria.
It may indeed kill the project and it's a tragic example of play stupid games win stupid prizes. There have been enough decades of lost lawsuits now that any thinking person ought to know better than to go sticking a fork in the outlet that is distributing copyrighted materials.
I think you've forgotten what 2020 was like. Libraries were closed. Schools were closed. Book stores were closed. Shipping was majorly slowed. Basically all public services were inaccessible to most people. Now imagine you're the kind of person who who founds and runs The Internet Archive for 25 years, not just another HN commenter bored at work. You're sitting in front of the button to help millions of people regain access to something the pandemic took away from them. Do you push the button, or do you cower away because some rich prick might sue you later?
I don't think the IA exists without the kind of person who pushes that button.
I don't actually care what 2020 was like because it isn't germane. No new legislation was passed meaningfully altering copyright law during that timeframe so this is absolutely a case of fuck around and find out, regardless of the optics.
Well, I expect that rigid respect for the law is why you didn't start the Internet Archive, and also why you weren't in a position to help millions of people during one of the biggest social upheavals in the last century :)
The law is the law. I don't have to respect it to grasp the concept of cause and effect. There wouldn't be much to talk about here if there wasn't a contingent whinging and ringing their hands as if any aspect of this situation was surprising or novel. Broadcast copyrighted material online without the benefits of significant opsec and you will get dragged in court, period. Hell it didn't take the recording industry 12 months to get a lock on Napster. Y'all need to quit playing like there's a victim here.
Yes, I think we are in agreement. If the law were respected, then the IA, the Wayback Machine, Abandonware Archive, and all of the benefits we get from them would not exist. It sounds like you think the law should be respected, so you think it's good for the IA to be destroyed by this lawsuit. Yes?
I think it's terrible that the Internet Archive is very likely destroyed, or at best, we have to donate a large sum of money to pay off Hachette.
But I think it was reckless to engage in uncontrolled ebook lending. Controlled lending (one copy lent for one copy on the shelf) is not a legal right (in the US), but it's got a much better chance of avoiding a lawsuit.
Uncontrolled lending was foolish. It was inviting a lawsuit, and it has far less chance of popular support than the intuitively more reasonable model of controlled lending.
I agree with the sentiment behind the NEL program: it's a lovely gesture. But to invite destruction of the Archive like that was a terrible mistake, in my view.
Clearly you aren't paying attention so allow me to reiterate:
Regardless of one's opinion on the IA or their mission, they objectively did a stupid when they decided to fuck around with copyright law. Publishers (and judges) have demonstrated repeatedly over the last two and a half decades that from a business perspective this is the equivalent of standing on railroad tracks giving an oncoming train the bird. 10/10 for balls, 2/10 for judgement.
The emergency library was the trigger for the lawsuit, but the lawsuit contends that even controlled digital lending is illegal.
There seems to be continued confusion on this basic issue of what is at stake in the lawsuit.
> The court fully rejected the Internet Archive’s argument that fair use protected its digital lending program. Notably, it did not limit its analysis to the National Emergency Library. Instead, the court rejected fair use as it applies to controlled digital lending in general. [0]
I think it's a serious mistake that they allowed unlimited borrowers at a time, because that shifts from fair-use format shifting to effectively making multiple copies of the format-shifted document.
That said, IANAL and I don't know what actual legal conclusions were arrived at from the trial or appeals.
I think it's a serious mistake that they used DRM at all. That positions them right along the publisher narrative which is exactly where they should not be.
I think they're intentionally tying it all together because they know that the "emergency library" was a heap of shit (you can't argue you can digitally lend the same document multiple times simultaneously, it makes no sense).
They're basically holding the Internet Archive hostage to try to force this thing through.
The lawsuit is not about the “National Emergency Library”.
It’s about, as the IA calls it, “Controlled Digital Lending” - which the IA was doing before and after the “emergency”, and is still doing now. The idea that, if they have a physical copy of a book, they can lend, one-for-one, a digital copy.
The “National Emergency Library” was basically uncontrolled - they were ‘lending’ digital copies of books they did not have physical copies of. But there are no lawsuits about that - presumably because they stopped and it would be bad publicity fore book companies to pursue them about it now. I do wonder if it’s what precipitated the book companies’ ire - but I also think a lawsuit about “Controlled Digital Lending” was coming sooner or later anyway.
No, the publishers' lawsuit also took issue with the "NEL".
It's just that the lower court's judgement didn't really focus much that issue, because they found the broader/simpler and more-foundational "can you loan a format-shifted ebook 1:1 from your physical book" issue against IA, which then makes an anti-NEL conclusion almost automatic.
So NEL-related arguments haven't yet been the focus of the rulings, despite being part of the original lawsuit.
Thus, also, IA's appeal is mostly about that foundational finding – though section II of the IA appeal brief says that if the appeal succeeds on "ordinary controlled digital lending", the NEL ruling should also be rejudged:
>Il. THIS COURT SHOULD REMAND FOR RECONSIDERATION OF THE NATIONAL EMERGENCY LIBRARY
Publishers do not deny that the district court’s NEL ruling depends entirely on its analysis of ordinary controlled digital lending. Resp.Br. 61-62. If the Court reverses the latter, then it should also reverse and remand the former. It need not address Publishers’ arguments about the justifications for NEL (Resp.Br. 62), which should be left for the district court in the first instance.
You’re right - I remembered the judgement, which, to heavily paraphrase, basically said “the NEL doesn’t matter if CDL is not allowed, so we only really need to consider that”.
That doesn't make sense. Of course it's a "single point of failure". I don't think anyone could have ever thought otherwise. A competing archive service would undoubtedly be great for humanity.
I think people don't really stop to consider - the Internet Archive could be gone tomorrow; either through legal action, malice, accident, mismanagement of the non-profit, etc. It's just considered "an Internet tool that exists".
I would argue that their attempt to even try this emergency library thing indicates that the people in charge are a bit too cavalier with what they have, for whatever (likely well-intentioned) reasons they may have.
And while individuals can mirror/datahoard the publicly facing parts of the IA, that's not all they have access too.
So, we need a distributed planet-size, multi-redundant, partly-encrypted, archive that can absorb and host the entirety of IA multiple times (for redundancy), INCLUDING the borrowing library.
"why build one when you can have two at twice the price"
they have a duplicate headquarters in Vancouver now, a similarly grand building to their SF headquarters. Years ago there was a collab with the library of Alexandria in Egypt to host an offsite backup but I don't think it panned out.
This would be the poster child for durable backups such as Microsoft Silica (if Microsoft dared to piss off those plaintiffs).
At 99 Petabytes, an offline copy would take about 2,000 LTO-9 tapes. I'm not familiar with other vendors, but a single IBM TS4500 tape library offers about 400 PB of near-line storage and I don't think IBM would be making the largest ones in existence.
Also, CERN could host multiple copies on unused blocks of their storage farm.
edit: just found a StorageTek (now Oracle) that can do "57.6 EB of uncompressed data". That's just surreal. HPE sells a much more modest unit that can store 2.5 EB.
This comment reminded me of famous quote: "When someone says "I want a programming language in which I need only say what I wish done," give him a lollipop."
Yes. If you have the pockets and logistics behind you, I'm sure Brewster would invite you for lunch to discuss. You'll need people for infra ops, people to coordinate hosting racks across the globe (preferably on every reasonable continent), and whatever the current cost is of a few exabytes of cost efficient storage hardware.
Yes, it's an alternative, not a copy. For example, it doesn't provide "emergency library" style borrowing, and maybe this missing feature is a pro, not a con.
On the other hand, it's doing something similarly dubious with paywalled news articles in that it bypasses many news sites' paywalls and supposedly injects its own ads next to the content.
There are even many comment threads detailing their strategy to avoid legal takedown requests by serving content via an "anti-CDN" (i.e. always serving content from abroad whenever possible, to make legal actions more difficult).
Any chance you're using Cloudflare DNS (directly or via e.g. iCloud Private Relay)? The people (person?) running archive have a somewhat complicated history with them.
Not using Cloudflare DNS, I use my own recursive resolver. And by "archive", I assume you mean archive.org; archive.is and archive.ph are different people.
My problem with the "rest of the archive" is that it's arguably 98% unchecked mass piracy that their own people seem to be ok with, in the form of "we're not copyright police, so just upload whatever you want and let companies deal with it later." which is exactly what Jason Scott has said.
Yes. If there is something you think you might personally want in the future and you can download it today you probably should. But it’s probably not terabytes.
The vast bulk of content is lost forever and given how much is created I’m not even sure that’s a bad thing. And if literally everything were magically siphoned up I’m also not sure that’s a good thing.
Of course it is piracy. This coloring of "bad" piracy with "good" things like libraries and preservation is an important step in dispelling the broadly pro-copyright culture we live in. It draws a clear picture of what copyright robs us of by presenting a case were violating it has a sense of moral righteousness.
> The problem is, their online book lending is far from the most important part of the Internet Archive,
I disagree. Archiving information for future researchers is valuable, but giving access to information to people right now is also very valuable. Most people's access to texts for research is very shallow, unless they are part of a research university. Google Books hosts many works that are out of copyright, but there is a century-long dead zone that is inaccessible.
I write a history of technology blog and the Internet Archive lending service has saved me thousands of dollars and many hours that it would have taken to track down the same research materials on eBay. Realistically, I just wouldn't have bothered, and the material I write would be of lower quality or not get written at all.
(That said I do agree that the emergency library was a strategic and legal mistake.)
Great, now you get access but then the year this free access is established is the year NEW information stops being created and/or the quality goes down hill (funny how making something free stops a lot of people from doing it for a living). Now everyone's content is 'lower quality or not get written at all' because the content that makes your's not 'lower quality' is no longer produced (most people/businesses don't work for free).
IA may have gone beyond pushing the envelope and well into stepping over the line on this one, but it is an important legal challenge. I don't think IA will or should win, but I do hope that their loss shifts the needle of public opinion a bit toward actual Fair Use.