
Lawsuit over online book lending could bankrupt Internet Archive - nixass
https://arstechnica.com/tech-policy/2020/06/publishers-sue-internet-archive-over-massive-digital-lending-program/
======
RcouF1uZ4gsC
> In March, as the coronavirus pandemic was gaining steam, the Internet
> Archive announced it was dispensing with this waiting-list system. Under a
> program it called the National Emergency Library, IA began allowing an
> unlimited number of people to check out the same book at the same time—even
> if IA only owned one physical copy.

This was a complete overreach by IA and they are paying the price. If you lend
out digital versions all of which are backed by a physical copy, it is hard to
argue that the publisher is being harmed. However, if you loan out unlimited
digital versions of a single copy, that is much harder to justify, and that
provided the the opening the publishers needed for a lawsuit.

I love what the IA has done, but i think they unnecessarily stepped into a
minefield for not that much benefit. Even Google with all its resources has
not directly challenged the publishers.

~~~
PragmaticPulp
I still don't understand why they thought they would get away with it.

Did they think they could draw a confrontation with the publishers and somehow
come out victorious? Or that the publishers and their legal teams would
voluntarily look the other way?

I still can't tell what their plan was. Or what point they were trying to
make. Or how they expected to handle the legal challenge.

It's a shame that they tied this to the Internet Archive. I seriously doubt
the people who donated to the IA wanted their funds to be used on this.

~~~
rolandog
I think they were considering being charitable by taking into account people's
feelings and situations during a trans-national emergency.

I myself borrowed an old book (which I already owned, but I wanted to compare
differences among versions), turned a few pages, but then got distracted and
didn't open it again (the virtual loan expired).

I think it's a shame that people are trying to crucify an exemplary
organization for doing a charitable act (no good deed goes unpunished, and all
that).

And, to be quite honest... Most of the books are at least 20 years old... So
it's not like they were distributing best sellers that were actively being
sold.

I think it's a situation where publishers "are being forced" to be litigious,
because they have an obligation to their shareholders to always take the
option that yields more money; the Internet Archive just happened to leave
themselves open to being a target, so they _have_ to do it.

This reminds me a bit of Commander Chris Hadfield's cover of Space Oddity, and
if I recall correctly, that David Bowie didn't own the rights to his own song
and thus was unable to approve or deny an extension for Cmdr Hadfield's video
on YouTube (and the controversy of the takedown).

~~~
philipov
> _they have an obligation to their shareholders to always take the option
> that yields more money_

This is not true, and I wish people would stop repeating it like gospel.

~~~
TremendousJudge
They'll probably stop doing it when it stops seeming to be the case.

~~~
mattkrause
Since this comes up a lot, I did some digging.

The actual standard, from In Re Walt Disney, is that business decisions aren’t
reviewable unless “the exchange was so one-sided that no business person of
ordinary, sound judgment could conclude that the corporation has received
adequate consideration".

In, Shlensky v. Wrigley, the Chicago Cubs were sued for refusing to install
lighting for nighttime games: their president believed baseball was best as “a
daytime sport." This is absurdly nebulous (and kind of bizarre), but the Cubs
nevertheless won. That decision was based on Davis v. Louisville Gas and
Electric Co, which says “the directors are chosen to pass upon such questions
and their judgment unless shown to be tainted with fraud is accepted as final.
The judgment the directors of the corporation enjoys the benefit of a
presumption that it was formed in good faith, and was designed to promote the
best interests of the corporation they serve.”

While you _can_ get sued for nearly anything, the legal standard is basically
"Did you egregiously rip off the company so that you could make money?", not
"Could you have squeezed ten cents more out of the public?"

~~~
joshuak
When I've herd this concept invoked the source has generally been attributed
to Dodge v. Ford Motor Co.[1] That ruling seems to cut in either direction
depending on the analysis. But in the end the most compelling argument seems
to be lack of enforceability...

    
    
      the rule of wealth maximization for shareholders is
      virtually impossible to enforce as a practical matter. The
      rule is aspirational, except in odd cases. As long as
      corporate directors and CEOs claim to be maximizing profits
      for shareholders, they will be taken at their word, because
      it is impossible to refute these corporate officials'
      self-serving assertions about their motives.
    
      — Jonathan Macey
    

While the rule of wealth maximization for shareholders is not an enforceable
law, it is a standard of conduct for officers and directors of a company.

[1]
[https://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Co](https://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Co).

~~~
mattkrause
Macey's whole article develops that idea a bit more (here:
[https://digitalcommons.law.yale.edu/fss_papers/1384/](https://digitalcommons.law.yale.edu/fss_papers/1384/)).

Ford's response to the Dodge Brothers was:

    
    
       My ambition is to employ still more men, to spread the  
       benefits of this industrial system to the greatest possible
       number, to help them build up their lives and their homes.
     

and Macey says this was precisely the right amount to torpedo his case. If he
had said less ("we're expanding"), he would have been fine. Had he said more
and provided even a shred of a business justification (goodwill, better work
from talented workers, expanding the customer base), he would have been fine.
As it was though, he put the court in a situation where they more or less had
to find that he couldn't openly do as he pleases with other people's money.

 _Shlensky_ has a fairly similar fact pattern. The Cubs decision was
supposedly driven by non-economic factors, namely beliefs about 'proper'
baseball and possible effects on the neighborhood. However, they left open the
door that these factors might themselves affect Cub's business prospects, a
door that Ford slammed shut on himself. As a result, the Court found:

    
    
      “Plaintiff in the instant case argues that the directors are
      acting for reasons unrelated to the financial interest and 
      welfare of the Cubs. However, we are not satisfied that the 
      motives assigned to Philip K. Wrigley, and through him to the
      other directors, are contrary to the best interests of the
      corporation and the stockholders. For example, it appears to
      us that the effect on the surrounding neighborhood might well
      be considered by a director who was considering the patrons 
      who would or would not attend the games if the park were in a
      poor neighborhood. Furthermore, the long run interest of the
      corporation in its property value at Wrigley Field might
      demand all efforts to keep the neighborhood from
      deteriorating. By these thoughts we do not mean to say that
      we have decided that the decision of the directors was a 
      correct one. That is beyond our jurisdiction and ability. We 
      are merely saying that the decision is one properly before
      directors and the motives alleged in the amended complaint 
      showed no fraud, illegality or conflict of interest in their
      making of that decision.” 
    

(from [https://casetext.com/case/shlensky-v-
wrigley](https://casetext.com/case/shlensky-v-wrigley))

~~~
DangitBobby
Just so you know, this is what a mobile user sees when someone uses code
blocks to format quotes on HN:
[https://i.imgur.com/EDI0Ist.png](https://i.imgur.com/EDI0Ist.png)

It makes people scroll side to side to read the quote.

Please don't use code blocks for quotes.

~~~
mattkrause
There's a link at the bottom to the text, if that's easier.

And frankly, the fact that there's no other way to indicate a block quote is
absurd.

~~~
DangitBobby
I agree, there should be one.

------
alexpetralia
> _However, the publishers may not be interested in forcing the Internet
> Archive out of business. Their goal is to get the Internet Archive to stop
> scanning their books. If they win the lawsuit, they might force the group to
> shut down its book scanning operation and promise to not start it up again,
> then allow it to continue its other, less controversial offerings._

Some context is useful. The IA, due to the coronavirus, is no longer lending
digital books via "controlled digital lending." Now, an "unlimited number of
people can check out the same book at the same time."

I can understand why the publishers would be upset. The IA need not go
bankrupt for this. They may simply capitulate and revert this new feature. I
am not convinced the publishers want to take the IA down; they merely want to
threaten that unlimited concurrent checkouts should not be permitted (and
perhaps, even more, that no books at all should be scanned).

~~~
zozbot234
> is no longer lending digital books via "controlled digital lending."

This is definitely inaccurate. Many elements of CDL are clearly still in
effect, such as the use of DRM to enforce the "check out" provision. It's a
real lending system. The only thing that's new is the "unlimited" claim wrt.
the number of copies that can be checked out at any given time - and we still
don't know how far that "unlimited" actually goes. We should wait for IA's
legal response on this.

~~~
vonquant
Is the extent of the 'unlimited' important? Lending a single book more than
they own is an impossibility if they are respecting IP - no different to a
physical library photocopying entire books so they can lend more.

------
StavrosK
That would be an immeasurable loss to humanity, the IA should be protected by
the government. I've contributed some very old cartoons I managed to find on
VHS rips and was very glad that the IA exists to safekeep them, many
30-somethings in my country have fond memories of these cartoons.

Terabytes upon terabytes of historical data would vanish if the IA were to go
bankrupt.

~~~
JumpCrisscross
> _the IA should be protected by the government_

Bankruptcy doesn't mean dissolution. If the IA goes bankrupt over this
National Emergency Library boondoggle, the servers will still be around. A new
organization could lift them out, clean them up and re-launch the service with
a more focussed mandate and better internal processes.

~~~
generationP
The question is what will happen with the archived data (wayback and user-
submitted material). Ideally someone will scrape them and a new similar entity
will spring up. Is there anything in law that would prevent that from
happening?

~~~
JumpCrisscross
> _what will happen with the archived data (wayback and user-submitted
> material)_

Presumably, they legally hold those data. As such, it could be purchased by a
new organization out of bankruptcy (assuming IA loses and goes into
liquidation versus restructuring).

~~~
generationP
Yeah, but could they give it away?

~~~
toomuchtodo
Prior to a court judgement, yes. After? Uncharted territory.

------
Taek
We are in the middle of a national emergency and the IA made an aggressive an
panicked move to try and improve people's lives at a time when frankly people
really needed help.

I would like to live in a society where temporary actions made in the name of
compassion during an emergency can be overlooked.

The IA probably overstepped, but given the circumstances I hope that any court
decision amounts to little more than requiring the IA to roll back their
unlimited policy. No damages awarded. We should encourage people to help each
other in times of crisis, any judgement granting damages sets a very bitter
tone for future crisis management.

~~~
fredrb
> I would like to live in a society where temporary actions made in the name
> of compassion during an emergency can be overlooked.

This could be read as:

> the end justifies the means

"Compassion" can be stretched to mean anything as long it's good to someone. I
think IA's cause is a very noble one. I can stand behind that. However, noble
causes don't give you legal exemption.

------
QuadrupleA
Love the IA and I am a donor, but kinda agree they stepped over the line here,
maybe got a little overexcited when the pandemic hit. Hopefully they can be
humble, admit the mistake, clamp down on the book piracy part and get things
legal again so it doesn't put the rest of their great stuff in jeopardy.

------
smcphile
> In March, as the coronavirus pandemic was gaining steam, the Internet
> Archive announced it was dispensing with this waiting-list system. Under a
> program it called the National Emergency Library, IA began allowing an
> unlimited number of people to check out the same book at the same time—even
> if IA only owned one physical copy.

I don't understand why the IA people thought this change would go
unchallenged. Seems like a pretty suicidal move to me, although I wish them
luck.

------
rkwasny
We need to put Internet Archive on IPFS or something similar, finding a single
location for 50PB+ archive is going to be difficult but one can easily find
50000 people with 1TB of free space and a stable server+internet connection.

~~~
generationP
Is there a way to cut the archive down to a manageable yet relevant subset
based on one's interests? Say, "I have 500GB free space and I care about
mathematics, what do I take from the archive"? Because 50000TB is too much for
crowdsourcing, particularly if it's supposed to be crowd-served rather than
just crowd-hoarded. I would guess a high percentage of that is video, which
perhaps should never have been part of the archive to begin with due to its
signal-to-noise rate.

~~~
dannyw
In 30 years with our 2^largenumber drives, we’d be regretting we didn’t add
chive more video.

~~~
boogies
But will we have "2^largenumber drives"? Aren't SSDs already beginning to have
problems with bit flipping?

~~~
boogies
Addendum: QLC is one way some SSDs are made slightly denser¹ that comes with a
cost: decreased reliability and extended sustained write performance (the
amount of data you can write quickly in one go is limited, and decreases as
the drive fills up). [https://www.howtogeek.com/428869/ssds-are-getting-
denser-and...](https://www.howtogeek.com/428869/ssds-are-getting-denser-and-
slower-thanks-to-qlc-flash/)

[1]: 25% denser than TLC

------
erikw
This is so frustrating to hear. A lot of comments mention the IA
"overreaching" with this. While I agree from a legal perspective, I don't
agree morally. The IP lobby overreached when they got life of author + 70
years / 120 years corporate copyright monopolies passed into law. Is there any
individual who argues that 120 years of monopoly is reasonable?

The worst part for me is the lack of agency I feel. I see something so
vehement being enforced globally, and it makes me feel like I'm being ruled by
some enemy mafia, not a representative democracy. Similar to the war on drugs
in the US, I see this as actively sabotaging society for the benefit of a few.

~~~
smcphile
> The IP lobby overreached when they got life of author + 70 years / 120 years
> corporate copyright monopolies passed into law.

I agree, but I don’t see why that automatically makes the recent modifications
(that brought on the lawsuit) by IA morally right.

Even if some works should already be in the public domain and are not yet, the
IA modification was also taking money away from relatively recent works.

------
patrickhogan1
The argument that is made in this article on behalf of IA that millions of
books are locked up in libraries during the pandemic won’t hold. Almost all
libraries during the pandemic have dramatically increased access to digital
lending. Library usage has increased with many books fully checked out at
libraries. Meaning these locked up copies are in use.

IA rocks, yet this new program hurts authors. Not just publishers.

~~~
mcguire
" _Almost all libraries during the pandemic have dramatically increased access
to digital lending. Library usage has increased with many books fully checked
out at libraries._ "

Do you have a source for that? My understanding was that digital lending and
physical lending came out of different pools (in fact most digital lending is
through something like Rakuten OverDrive); using a library's physical
inventory would likely violate it's digital license.

~~~
patrickhogan1
Source: [https://www.smartcitiesdive.com/news/public-library-
associat...](https://www.smartcitiesdive.com/news/public-library-association-
survey-coronavirus-resources/575978)

Hope this helps. The main point I was trying to raise raise was in response to
the article where an advocate of IA argued that IA was justified because books
are "locked up" during pandemic. Yet libraries are putting their licenses of
those works to use.

------
usr1106
I don't see any information about how many books were actually "borrowed".
Somehow I have the feeling it might be fewer than sitting in the shelves of
all the physical libraries.

Has this emergency library been popular? I read about it on HN, not anywhere
else. The world is not full of HN readers.

I'm considering writing to those publishers that I will stop buying books
published by them and borrow them from a (physical) library instead, copying
pages I want to keep. Be the letter of the law whatever it is, this was a
exceptional situation and it was not done for personal benefit.

~~~
Nemo_bis
It's in [https://blog.archive.org/2020/04/07/the-national-
emergency-l...](https://blog.archive.org/2020/04/07/the-national-emergency-
library-who-needs-it-who-reads-it-lessons-from-the-first-two-weeks/)

> Trying to compare a physical check-out of a book with a digital check-out is
> difficult. Assuming that the number of physical books borrowed from a
> library corresponds to digitally borrowed books that are read after the
> first day, then the Internet Archive currently lends about as many as a US
> library that serves a population of about 30,000.

Of course you won't find any real information in the publishers' complaint.
It's all rhetoric and no substance, except where they claim everything and its
opposite.

------
hysan
I hope this news isn't drowned out by the current protests. Unpopular
lawsuits, bills, etc. tend to appear and get a hard push during times when
media attention is focused on some other larger outrage.

The timing of this is extremely opportunistic and reinforces the idea that the
IA is in the _moral right_ (not necessarily the legal right). Imagine if this
was filed when the only news was about COVID-19 and working from home? What
type of outrage would it have manufactured by all of the working parents
stranded at home trying to fulfill the duties of being a teacher too? Of
course publishers wouldn't do that. It would be a PR death move.

------
enitihas
I don't understand how so many people here are commenting as if giving out
books for free was a good idea. Considering that a large part of HN makes fat
salaries writing software which is either sold for high price(MSFT types), or
mining user data and advertising (GOOG types). If their work was being
distributed for free (SQL server, Windows), software developers would make
much less money and would be up in arms here. Why should authors be deprived
of the value of their labour. If not, will you be happy if all software was
made free in "National Emergency Software Library", and you were being paid
peanuts? After all , people also need a good OS and Database apart from books.

~~~
smcphile
> I don't understand how so many people here are commenting as if giving out
> books for free was a good idea.

I'm not sure how many people are thinking that. Some must be, but not
necessarily many.

There's a difference between "giving" and "lending". The IA have never given
away copyrighted books.

I've used the IA's lending library in the past and the copyrighted ebooks were
protected by Adobe DRM. You were allowed to take out a few books for a few
weeks (like in a real library). You were required to return the books before a
given date. And if you didn't, the ADOBE software wouldn't let you read the
book anymore (because of the DRM).

According to the article, until recently, the IA would scan a book and would
lend out the created ebook only to a limited number of people at a time, based
on how many copies of the physical book that they had.

What changed recently is that they began lending out to a potentially
unlimited number of people at a time. But, you still didn't get to keep the
book for more than two or three weeks (I forget the exact number).

~~~
enitihas
I don't think anyone has any problem with the original lending scheme. That
was totally fair.

> What changed recently is that they began lending out to a potentially
> unlimited number of people at a time. But, you still didn't get to keep the
> book for more than two or three weeks (I forget the exact number).

This is the relevant part, and what has prompted the publisher lawsuit. Do you
think people should be allowed to take out any software they want for free for
2-3 weeks for a "National Software Emergency Library". If not, why books.

~~~
smcphile
> Do you think people should be allowed to take out any software they want for
> free for 2-3 weeks for a "National Software Emergency Library". If not, why
> books.

I'm not sure what the IA was thinking when they made that modification.
Perhaps they thought that during the pandemic such a change would be found
temporarily acceptable.

I agree with your point that programmers, software publishers, authors and
publishers should all be able to make money and get paid for their work. I'm
not sure though what are the best business models for making that happen.

What I've settled on myself, for the moment, is buying physical (paper) books,
buying ebooks without DRM, downloading old ebooks in the public domain for
free (or buying them cheaply from sites that do a good job on the markup) and
taking out books from my local library.

My wife buys Kindle ebooks (with DRM) from Amazon, because she requires a very
large font size, and the Amazon solution was the best that I found (biggest
selection of books of the type that my wife reads).

------
peter_d_sherman
"Those who don't know history are doomed to repeat it"

-Alternatively attributed (in one form or another) to Edmund Burke, George Santayana, and Sir Winston Churchill, and possibly your high school history teacher, as well!

Related:

[https://en.wikipedia.org/wiki/Censorship](https://en.wikipedia.org/wiki/Censorship)

[https://en.wikipedia.org/wiki/Memory_hole](https://en.wikipedia.org/wiki/Memory_hole)

[https://en.wikipedia.org/wiki/Fahrenheit_451](https://en.wikipedia.org/wiki/Fahrenheit_451)

[https://en.wikipedia.org/wiki/Chilling_effect](https://en.wikipedia.org/wiki/Chilling_effect)

[https://en.wikipedia.org/wiki/Category:Historical_negationis...](https://en.wikipedia.org/wiki/Category:Historical_negationism)

Also, if you're criticizing or downvoting this (which I am completely OK with,
BTW!), _you 're equally-and-oppositely criticizing and downvoting all of the
links above_.

I see myself only as a messenger... a simple "knowlege-mover"... I only move
knowledge from point A (the links above) to point B (Hacker News)...

That, and I see myself as simple, humble student of history...

OK, now that that's said, you may proceed to downvote and criticize to your
heart's content! <g>

In fact, I'd be glad if you did!:

[https://en.wikipedia.org/wiki/Streisand_effect](https://en.wikipedia.org/wiki/Streisand_effect)

The Internet Archive is worth at least 1,000 Googles -- because of the History
it provides... it's the closest thing to a record of our Civilization (through
the years that it was active) that we have at this point in time.

Destroy History, and you destroy Civilization itself...

~~~
ketzu
Disagreeing with you or your post is not disagreeing with the content of those
links. Neither is critizising you transitive.

Giving more context and explaining your points besides name-dropping would be
helpful. I get the impression, that your comment, disregarding complaints
about possible downvotes, could be reduced to:

"censorship"

------
sonofaplum
The IA is good, but the decision they made is very bad and has put their
entire operation at risk.

Their leadership clearly both cares about archiving the web and also for
advocating an expansionist view of content distribution (that in an emergency,
any private organization has the right to distribute whatever content they
want however they want to without regard for the right holders of the
content?).

That's fine for them to hold both views but both roles are now at risk. It's a
very sad and completely avoidable situation and I hope that the IA will course
correct and avoid disaster.

------
fxtentacle
A lot of the comments claim that publishers could collect $150k per work in
statutory damages. However, that usually only works if the book was registered
timely with the USCO. I don't know the rate among book authors, but most
photographers don't register, so they don't qualify.

If the IA was clever to only choose books without registration, then the
maximum they can be trialed for is the financial damages that publishers can
prove. Given that everyone is trying to save money nowadays, it's very hard to
convincingly argue that everyone would have bought the book if there had been
a waiting list for renting it.

I also see the possibility that the IA is just trolling publishers. Maybe they
did keep track of the numbers internally and never lent out to more people
than they had licenses available through their partners. In that case, the
publishers would incur large legal costs only to later be told by the court
that nothing illegal had happened.

EDIT: There's also the claim by the IA that the average user only looks at the
book for 30 minutes. That, in turn, would mean that what the publishers call
"borrowing" here is more akin to me browsing an in-person library without
actually checking out anything. So there's a good chance that 2-3 copies of
each book are enough to make it difficult to prove this illegal, meaning maybe
this is clever trolling after all.

[https://blog.archive.org/2020/04/07/the-national-
emergency-l...](https://blog.archive.org/2020/04/07/the-national-emergency-
library-who-needs-it-who-reads-it-lessons-from-the-first-two-weeks/)

~~~
Nemo_bis
The lawsuit is about 127 books which have a copyright registration, listed in
the attachment:
[https://archive.org/download/gov.uscourts.nysd.537900/gov.us...](https://archive.org/download/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.1.pdf)

The publishers have already proposed an alternative to statutory damages:

> Alternatively, ordering Internet Archive to render a full and complete
> accounting to Plaintiffs of Internet Archive’s profits, gains, advantages,
> or the value of business opportunities received from the foregoing acts of
> infringement of the Works and entering judgment for Plaintiffs against
> Internet Archive for all damages suffered by Plaintiffs and for any profits
> or gain by Internet Archive attributable to the infringements alleged above
> of Plaintiffs’ copyrights in amounts to be determined at trial;

[https://archive.org/download/gov.uscourts.nysd.537900/gov.us...](https://archive.org/download/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.0.pdf)

This would probably be a very long discovery process, like ACS and Elsevier
vs. ResearchGate:
[https://archive.org/details/gov.uscourts.mdd.433643](https://archive.org/details/gov.uscourts.mdd.433643)

~~~
fxtentacle
Agree, this can potentially take a long time and a lot of money to go to
court. That's why I am considering the possibility that the Internet Archive
is effectively trolling them by doing everything legally but talking about it
in a way that upsets publishers.

BTW, thank you for the link to the attachment. Some books, like RE0000172597
The Magician's Nephew will likely be too old for statutory damages. Others,
like TX0005757057 The Five Dysfunctions of a Team: a Leadership Fable were not
registered timely and will likely be blocked from statutory damages due to
that. But TX0008865827 The Man Who Solved the Market for example is registered
timely, so that one would qualify for statutory damages, if they can prove
that this book was willfully infringed.

But the last one - i.e. the only one in my 3 examples that could get statutory
damages - looks like it was uploaded by a contributor and the preview page was
only viewed a mere 621 times... So that could be a DMCA safe harbor defense,
that IA simply didn't notice before that this unpopular contributor-uploaded
book wasn't legal.

[https://archive.org/details/manwhosolvedmark0000zuck/](https://archive.org/details/manwhosolvedmark0000zuck/)

BTW, it looks like the IA has now disabled the group pages for suing
publishers, which might gently nudge viewers towards other books, potentially
driving sales away to their competition.

~~~
Nemo_bis
622 times is on the high end! The average is less than 50 and the median I'd
guess less than 10. But that scan was uploaded by the Internet Archive itself,
only the physical book was donated by a prominent Internet Archive employee. I
wonder if the publishers selected it out of spite for him, or even to keep the
door open to including him personally in the suit (that would be nasty).

Why do you say C. S. Lewis is too old for statutory damages? Do you think the
Internet Archive can claim it looked like it could be in the "last 20 years"
phase
(<[https://archive.org/details/last20>](https://archive.org/details/last20>))?
I don't know... The publishers will probably claim the Internet Archive should
know better, but at the same time they claim it doesn't understand a thing
about copyright:

> IA erroneously decided that they were public domain works based on
> elementary misunderstandings of copyright law.

As for harming sales of books by making those publishers less visible, it will
be interesting to see, but it's hard to make predictions. Just to be sure,
publishers in their complaint write that IA's lending both _increases_ and
_decreases_ sales at the same time:

> the traffic that IA drives to Better World Books [by having copies of the
> books] results in more book sales

but:

> IA competes directly with Publishers’ works in all formats (including,
> without limitation, print and digital) and market segments (including,
> without limitation, commercial, library, and school).

Indeed the complaint is mostly focused on purely hypothetical damages based on
speculative predictions like:

> Consumers begin to view works as cheap and become increasingly
> unappreciative of what it takes to produce them and unwilling to pay fair
> value for them.

The problem with all these arguments is that they would apply to libraries
lending physical books as well, if they were not established yet. Kyle
Courtney makes this point: [https://kylecourtney.com/2020/05/18/libraries-do-
not-need-pe...](https://kylecourtney.com/2020/05/18/libraries-do-not-need-
permission-fair-use-first-sale-and-the-fallacy-of-permission-culture/)

------
RodgerTheGreat
What can users do to help the Internet Archive in its time of need?

~~~
xtracto
Donate please!

~~~
squarefoot
Done. Some quid that I could have spent in a book by Hachette, HarperCollins,
Wiley or Penguin Random House went instead to the Internet Archive, and I'll
be doing the same every time I plan to buy a book by the above publishers,
which I have just put in my do-not-buy-from list.

Clarification: not that their reasons were unsound, they're perfectly
understandable, but going straight with a lawsuit without other attempts to
solve the problem equals to bullying, and I'm not supporting it with my
wallet.

~~~
neaden
They did first try asking the IA to stop unlimited lending, so they did not go
straight to a lawsuit.

------
nmstoker
Concerning as they seem to have been foolhardy.

I'm a donor and am now torn between donating more so they can get through it
or cutting donations as it's all going to get passed to the publishers (given
what appears their legitimate concern with IA's behaviour on this)

What's the best approach?

~~~
Nemo_bis
Donate as usual: the money doesn't stay on the Internet Archive's bank account
for long, it won't go to publishers. You can donate more later if the Internet
Archive asks for donations specifically for the lawsuit, and at any rate after
the lawsuit to accelerate operations (whether they win or lose).

------
naringas
in a society with digital technology the publishers are basically rent
seekers. aggregators will end up replacing them.

a business model for aggregators other than advertisement is needed.

~~~
enitihas
Publishers are rent seekers and software companies are not? Microsoft selling
windows and office is ok but publishers making money is not?

~~~
martimarkov
Microsoft actually makes something in crude terms. Software companies create
value with the product they build. The IP is the product.

Publishers take someone’s work in crude terms. They might build a bit on top
of it (proofread, format, etc) and then put it on a medium for distribution.
Medium is technically the product here.

To me a better comparison would be a company writing the windows installation
to a CD and then selling = publisher.

I could be wrong so am very open to hear the reverse argument.

PS: recently a friend wanted to publish his own book and the publisher asked
for him to pay the entire printing cost and a lot of other fees plus taking a
% of sales. This is the closest I got to interact with the industry and was a
bit shocked and also understanding that they can’t find everyone but still...
came to be as a bit greedy

~~~
enitihas
> Microsoft actually makes something in crude terms. Software companies create
> value with the product they build. The IP is the product.

Software companies create and sell products out of the labour of software
developers. Publishing companies create and sell products out of the labour of
book authors. Both are tangible products. Windows is no better stream of bytes
than Harry Potter. The IP is the product for "Harry Potter" also.

Also, you are trying to convey as if authors have no harm in books being
distributed for free. They receive royalty from book sales. Giving their books
for free is like saying a FU to them. I doubt any software developer is going
to work for free, so why expect the same from authors.

~~~
Kye
They have to sell enough to cover the advance before they get royalties. Most
authors never get there. "Piracy" is not the reason.

------
zatel
I am an author and I support the IA in this decision.

------
david2020
Whilst I agree with their archival mission for the internet, I find it
abhorrent that THEY are charging people to access other people's books (and
not paying the copyright holder anything).

Take a look at the screenshots at page 25 of the complaint filed before the
court.

[https://regmedia.co.uk/2020/06/01/publishers-lawsuit-
interne...](https://regmedia.co.uk/2020/06/01/publishers-lawsuit-internet-
archive.pdf)

The Authors' Guild said that the Internet Archive said:

"has no rights whatsoever to these books, much less to give them away
indiscriminately without consent of the publisher or author."

and the Association of American Publishers (AAP) said:

"It is the height of hypocrisy that the Internet Archive is choosing this
moment - when lives, livelihoods and the economy are all in jeopardy - to make
a cynical play to undermine copyright, and all the scientific, creative, and
economic opportunity that it supports."

~~~
Narishma
Who is 'they'?

------
ineedasername
I really like what IA does, but I can't see a justification under copyright
law that would allow them to have unlimited checkouts of the same book. They'd
be well advised to drop the policy and hope the limited time they offered
this, and their status as a non-profit, is enough to get those who filed the
suits to drop them.

------
Qahlel
We still don't understand digital ownership and the copyright laws are lagging
far behind against the consumers.

Before Internet, once you created something, the only way for someone to steal
your "work" was to steal/copy an actual thing. In the digital age, everything
is just ones and zeros. Law makers are clueless to what awaits us.

~~~
tzs
That's arguably backwards. See Breyer's article "The Uneasy Case for
Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs"
[1], where he made the argument in 1970 that because copying was relatively
slow and expensive, and most works made most of the money in a limited window
after release, there really wasn't much need for long term copyright
protection. By the time copiers could make and distribute copies there
wouldn't be enough of the market left for them to get back their costs.

As copying technology becomes cheaper and faster the case for copyright gets
stronger, at least if we are going to stick with the approach we currently
use. That approach is based on the idea that a free market is an optimal way
to determine the allocation of resources and we should use it whenever we can.

The mathematical economists can actually prove that is true in markets for
goods that have certain properties. Copyright law (and patent law)
artificially imbue certain intellectual works with those properties.

There are, of course, other systems we could use. One approach would be to
treat these works as a public good. Have some tax funded government agency
give out grants to authors and film makers and so on to make new works, and
their output is public domain.

Some problems with that approach include determining the budget, and
determining what works get funded. It's hard to see either of those not
getting politicized out the wazoo.

Another possibility is similar, except you give out the grants after works are
created. An author creates something, releases it to the public domain, and
the agency determines how many people are actually reading/viewing/etc the
work. Then pay the creator based on that.

Another approach is similar, but without taxes. Creators can be funded by
charitable foundations, or by directly soliciting donations from the public.

[1]
[https://en.wikipedia.org/wiki/The_Uneasy_Case_for_Copyright](https://en.wikipedia.org/wiki/The_Uneasy_Case_for_Copyright)

~~~
ketzu
That's a really interesting topic. I wish there was more... realistic
discussion about those things.

I remember 10 years ago, when the pirate party was hyping up, there were a few
propositions of basically a tax based system: remove copyright, but add a 10€
entertainment tax. It felt unrealistic to me to replace a multi billion dollar
industry with 80million/year. Digital objects might have nearly zero
reproduction cost, but producing the art still costs money. Splitting the cost
of a single 320$mio movie on 8bil people, still costs everyone 4cents.

In a similar veine the limitations for artists to monetize their money and
rely on others: artist could market directly to consumers instead of having
advertisers! But that would mostly select for people that are good at
advertising themselves, what morphed to influencers.

~~~
zozbot234
A movie doesn't _have_ to cost $320M - by way of example, the Blender
Institute's freely available movies cost far less than that to make. Movie
making is a "multi-billion dollar industry" only because of the incredible
amount of sheer waste that's involved in that pursuit.

~~~
ketzu
While I believe there is quite a lot of waste, I still think that such a
change would have a huge impact on movie making and other things.

I don't know enough about the Blender movies and the cost involved, so I have
to adress it in a "strawman" like way by comparing it to open software: Having
volunteers working on it for free greatly reduces cost, but diminishes that
those often have jobs in the related industry, indirectly funding the project
and helping the peoples skills. Switching to free software for everyone
(forbidding advertisements and data collection for further income of course!)
on a small tax scheme would very likely have a devastating consequence medium
term for open source software as well.

But all of this is just speculation by me.

------
greyhair
It is a bummer, but they messed up.

Is it possible they were under financial duress anyway and were looking for
attention grabbing move to garner support?

I don't understand it, and I find it hard to believe that their legal counsel
green lighted it.

------
Cactus2018
Speaking of the Internet Archive, what happened to the "MTV VHS Recordings
1981 to 1989 [video]"[1]?

That link was HN front page[2] material less than a month ago, and the link
never worked for me.

[1] [https://archive.org/details/mtv-80s-vhs-full-recording-
colle...](https://archive.org/details/mtv-80s-vhs-full-recording-collection/)

[2]
[https://news.ycombinator.com/item?id=23071867](https://news.ycombinator.com/item?id=23071867)

~~~
yarrel
MTV decided they wanted to remain historically irrelevant and sent a takedown
notice.

~~~
mcguire
Anyone remember when MTV was "Music Television"?

Yah, me neither.

------
troughway
Is there a way to mirror IA?

~~~
doublerabbit
Yes-ish:
[https://www.archiveteam.org/index.php?title=Internet_Archive](https://www.archiveteam.org/index.php?title=Internet_Archive)

~~~
deegles
50 petabytes as of 2014, yikes.

~~~
FeepingCreature
50k people each donating 1TB in a loss-resistent schema could do it. Miiight?
be achievable?

~~~
toomuchtodo
Yeah, something like ArchiveTeam's Warrior virtual machine [1], but instead of
connecting to a JSON tracker to coordinate and download content for archival,
it connected to the Internet Archive's bittorrent trackers [2] and consumed
then seeded the least available items constrained by the disk space available
to the virtual machine. As more virtual machines are launched, item coverage
increases automatically.

This doesn't take into consideration data the Internet Archive isn't providing
as a torrent, such as the Wayback Machine archive or OpenLibrary. OpenLibrary
can be replaced by Library Genesis [3], but I am unaware of any replacement
for Wayback.

EDIT: I'd like to see a rack of Archive storage nodes in every museum or other
cultural center in the world, all contributing some space, power, and
connectivity to distribute digital cultural archives globally.

[1]
[https://www.archiveteam.org/index.php?title=ArchiveTeam_Warr...](https://www.archiveteam.org/index.php?title=ArchiveTeam_Warrior)

[2] [https://help.archive.org/hc/en-
us/articles/360004715251-Arch...](https://help.archive.org/hc/en-
us/articles/360004715251-Archive-BitTorrents)

[3]
[https://en.wikipedia.org/wiki/Library_Genesis](https://en.wikipedia.org/wiki/Library_Genesis)

------
acd
The dataloss would be over 18 petabytes. Why not stop lending? Could one claim
Force majeure? Ia is a library.

------
aiscapehumanity
They're just going to make everyone use libgen which won't end piracy.

------
surround
One thing that I haven’t seen mentioned is that IA allowed authors to remove
their books from the national emergency library. This doesn’t make publishers
happy because they can’t make the decision for their authors.

------
phendrenad2
Is there a backup on the IA? If this lawsuit takes down IA, will the wayback
machine content simply be lost forever?

------
shadowgovt
Where can people donate to their legal defense fund?

~~~
Nemo_bis
For now there's always
[https://archive.org/donate/](https://archive.org/donate/)

------
kingkawn
they’re just a few months ahead of themselves on the collapse of the legal
system

------
MintelIE
That’s OK. Archive has been deleting all kinds of content because it ruffles
their Bay Area feathers. It’s clear that projects like this aren’t ready for
the long haul and once you let activists become curators it’s all over.

~~~
ajayyy
They didn't delete it, they hid it. It still exists and will probably be made
public again when it becomes historically significant

