
Internet Archive responds to publishers’ lawsuit - edward
https://blog.archive.org/2020/07/29/internet-archive-responds-to-publishers-lawsuit/
======
jawns
I am an author, and several of my books were published by one of the
publishers who is a party to the suit.

Unlike these publishers, however, I support Controlled Digital Lending. I
think it's closely analogous to print lending in every way that matters. It
strikes the right balance between respecting the first-sale doctrine and
respecting authors' copyrights. It allows lending of creative works to proceed
into the 21st century under essentially the same terms that it existed prior
to the digital age.

To the extent that the publishers are arguing against the legality of CDL, I
disagree with them. I hope the courts recognize it is already legal, or even
better, I hope Congress explicitly declares it legal.

Yet I think it's worth emphasizing that the Internet Archive engaged in
uncontrolled digital lending through their national emergency program. By
being willing to lend out more copies than they owned, they were clearly
engaging in copyright infringement, and I found their justification for it
wholly unconvincing.

So, while I support IA insofar as it engages in Controlled Digital Lending, I
oppose IA's shift toward Uncontrolled Digital Lending, and their willingness
to do so, under flimsy justification, makes me concerned that they cannot be
trusted to handle even CDL responsibly.

~~~
bilkow
While IA has temporarily lifted the restriction on number of copies (but not
others like lending time), the complaint also goes against CDL in general,
making it very dangerous. See for e.g. paragraph 8 and 10.

"IA’s self-serving assertion and promotion of “Controlled Digital Lending” as
both an actual legal doctrine and a justification for its infringement
affronts the most basic realities of the law and the markets it propels. As a
matter of markets, IA’s one-to-one conflation of print and ebooks is
fundamentally flawed. Digital books are inherently different from physical
books. They can fly around the world in a second; they do not degrade over
time as physical books do; and they require devices to read them."

[https://publishers.org/wp-content/uploads/2020/06/Filed-
Comp...](https://publishers.org/wp-content/uploads/2020/06/Filed-
Complaint.pdf)

~~~
nitrogen
_they do not degrade over time as physical books do_

It's worth pointing out that libraries will rebind a physical book if it
starts falling apart. It's weird to argue that publishers' rights should last
the full term of copyright, but readers' rights only last until a book wears
out.

~~~
gamblor956
Why is that weird? Copyright law for centuries has provided that the copyright
owner's rights last the full term of the copyright. (The copyright owner may
be the publisher _or the author._ )

A reader's right to a physical copy only lasts as long as the physical copy.
If they want to extend the term of that right, they should take better care of
their physical copy.

~~~
nitrogen
Modern copyright law in most places allows the creation of a backup copy of
digital media to prevent loss due to wear.

~~~
gamblor956
That is actually not true in the US. The exceptions for making backup copies
are limited to software (17 U.S.C. § 117(a)), and to libraries (17 U.S.C. §
108).

~~~
drewbug
The market of effect of copies for personal use is insignificant and my
understanding is that they are generally exempt as fair use.

~~~
gamblor956
In the US at least, fair use does not include a right to make personal backup
copy. If you wish to extend your use of the item containing some IP, your
options are basically to just take better care of the physical item.

However, it's simply not worth it for a copyright owner to go after someone
making a backup copy for personal use since the statutory damages are only
$750 (per act of infringement), and don't include legal fees. (Contrast to the
infamous Napster/Limewire cases: each peer connection in P2P sharing
constitutes a separate act of infringement if you share to them, which is what
made it potentially lucrative for some law firms to attempt to shakedown users
of those programs.)

This is an intended effect of setting the statutory amount at $750: it's too
low to make it economical for copyright owners to go after isolated cases
without market effect, but at the same time quickly makes it very expensive
for infringers to commit multiple acts of infringement.

~~~
drewbug
I'm not saying Congress has passed a law explicitly making personal copies
legal, but it does appear courts (in the US) do consider market effect when
determining fair use.

This isn't exactly the same as personal use but it's pretty relevant:
[https://arstechnica.com/tech-policy/2015/10/appeals-court-
ru...](https://arstechnica.com/tech-policy/2015/10/appeals-court-rules-that-
google-book-scanning-is-fair-use/)

> "While Google makes an unauthorized digital copy of the entire book, it does
> not reveal that digital copy to the public," the opinion states.

Also, Pamela Samuelson, a professor at University of California at Berkeley
has stated: "Personal-use copying should be deemed to be fair, unless there is
a demonstrable showing of harm to the market for the copyright at work"

------
chadash
Does anyone have a _legal_ theory under which IA can potentially defend itself
here? I am no legal expert, but I just can't fathom an avenue where they win
this case. The merits of copyright law can be debated, but given that the law
exists, what legal framework can IA use to fight this, or is their losing the
case a forgone conclusion?

~~~
crazygringo
I haven't heard of anyone suggesting any legal strategy by which they can win.

I've really been scratching my head trying to figure out what their overall
strategy with this has been.

~~~
a1369209993
> I've really been scratching my head trying to figure out what their overall
> strategy with this has been.

They're doing what's right, with - it appears - insufficient concern for
pragmatism.

~~~
jjcon
> They're doing what's right

Stealing from artists and authors is right? Just because a company you admire
does something wrong doesn’t mean you need to resort to a fanboyish defense.

More than 90% of libraries already have digital lending programs that they
established legally following all the rules.

IA completely disregarded these processes not to mention publishers and
authors rights - they just opted to distribut pirated copies of works.

~~~
devenblake
Thoughts cannot be stolen, nor can words on a page, nor can bits and bytes.
For something to be stolen, the _single instance_ of that object must be
_transferred_ from one entity to another. In this scenario, the existing book
was _copied_ from one entity to another. You may _believe_ the Internet
Archive was committing an act of theft, but your notions of what theft is are
based on an obsolete idea of what property can be.

------
MattGaiser
The problem is that the Internet Archive demonstrated that controlled digital
lending can allow a library to become indistinguishable from Pirate Bay
overnight.

They blew up an uneasy peace and cannot exactly be trusted to adhere to the
practice without changing it as they decide.

~~~
wolco
The problem is information wants to be read and be free. Copyright is a wall
around information that has already been thought of and recorded.

Pirate Bay is exactly like a local libruary which is like a book store. The
only difference is physical books vs digital, if you have to give it back and
when and the cost.

Book stores will let you violate the publishers copyright as long as you don't
leave the store. Want to read that entire book, sit on a chair and read.

A libruary will let you read at the place or at home but you have to bring it
back in a week.

Piratebay lets you read it forever but it's a digital copy.

All scenerios you can read without paying.

~~~
Silhouette
_The problem is information wants to be read and be free._

It doesn't necessarily want to be written, though. That's the part people who
make this argument always seem to forget.

Whether it's through our existing copyright-supported frameworks or some other
mechanism, there needs to be enough in it for authors (and editors and cover
illustrators and printers and online distribution services and...) to be worth
producing the work in the first place.

~~~
sildur
There was a time before copyright existed, and we got pretty nice books from
it. And now that I’m thinking on it, considering how the internet of today
looks, with people creating content to earn money versus the internet of 20
years ago, with people creating content for the love of it, I think I would
like a future where books are written for passion instead of for money. Less
books, more quality.

~~~
gamblor956
Yes, and all of those works that you're thinking of were written either by
individuals from wealthy families (today we would call them trust fund
babies), royalty, clergyman, or artists funded by patrons from one of the
first 3 groups.

I disagree about the "less books, more quality" argument. Today, we have more
books, more quality. Sure, there are lots of bad books today, but the volume
of high-quality works today so far exceeds the volume of _any_ books (good or
bad) produced during the patronage era that it's like comparing a nuclear bomb
to a match.

~~~
a1369209993
> individuals from wealthy families (today we would call them trust fund
> babies), royalty, clergyman,

None of whom got their money from exorting readers of their books.

What you have there is a argument for basic income, not a argument for
copyright.

~~~
gamblor956
Crucially, other than the artists receiving patronage, none of them were paid
for writing their books at all.

History is filled with many authors who died young and penniless because they
could not survive on their writing during their lifetimes. And that's exactly
the system you're arguing for.

~~~
a1369209993
History is filled with many people, authors and otherwise, who died young and
penniless because they could not survive on the fraction of the value of their
work that was economically capturable by them personally.

> And [authors dying young and penniless]'s exactly the system you're arguing
> for.

Bullshit. Your system is the one that produces that (see also fanfiction
authors, who I'm sure aren't true Scotsmen to you). As I said:

> > What you have there is a argument for basic income, not a argument for
> copyright.

~~~
gamblor956
_Bullshit. Your system is the one that produces that (see also fanfiction
authors, who I 'm sure aren't true Scotsmen to you). As I said:_

My system is the system that has enabled hundreds of thousands of artists and
other creators to survive _on their own_ without needing publishers or other
entities to sell their work for them and pay them a pittance.

Basic income is a separate discussion. It would mean that artists wouldn't
die, but it would also mean that corporations would get to exploit artists
worse than they ever have before.

You really need to think of the _consequences_ of your suggestions before you
suggest altering other people's livelihoods for your own momentary
convenience.

------
walterbell
If IA survives this lawsuit, donors who support _web archive_ preservation may
prefer not to have the largest web archive being placed at legal risk by
experimental _library_ policy.

For this reason, the web archive should be legally firewalled from any library
operations, i.e. Archive.org can be separated into two organizations with
separate fundraising.

------
robotbikes
I found their library to be very handy when my step-son forgot a book he
needed for a high-school English class at his Dads. We tried to navigate
Amazon to buy it but his account wasn't able to make purchase and then I found
it available on here and we could check out a copy of it and he got his school
work done. This was before they removed check out restrictions for the
pandemic. There are lots of students who don't have credit cards or whose
parents can't afford to buy ebooks or risk connecting their cards to their
kids accounts where it could result in unplanned purchases. I honestly don't
think authors will lose much money from people checking out books. Those who
can and do pay for ebooks are unlikely to quit purchasing them but there are a
lot of people without kindles & credit cards where something like this might
be their only way to access the book.

~~~
judge2020
Amazon has a thing called Amazon Household. Your solution would have been to
create a 'teen' login for them and buy the books they wanted on your adult
account, which they would then have access to via Kindle.

[https://www.amazon.com/gp/help/customer/display.html?nodeId=...](https://www.amazon.com/gp/help/customer/display.html?nodeId=GXULX24SE2RD7EXS)

> Adults can share digital content (eBooks, apps, and games) with children.

------
chx
> This is how Internet Archive’s lending library works, and has for more than
> nine years.

Wow. And why do you think noone sued for nine years?? Maybe because as long as
the IA behaved like that it was legal but they changed how they work because
of COVID and became a pirate site overnight. They basically said "we do not
know how many physical copies are languishing in closed libraries so we will
just pretend there are infinite copies". That is of course nonsense.

------
colincooke
This response confuses me a little bit. Although in their response the
Internet Archive refers to the lawsuit attempting to stop controlled digital
lending, I believe the lawsuit instead is looking at uncontrolled digital
lending (the Emergency Library from IA) [1].

If there hasn't been scope creep on this lawsuit I feel this is a disengenous
representation of the publishers argument. The publisher's argument was
specifically that the form of IA's CDL (basically uncontrolled digital
lending) is against copyright, an argument I personally agree with (in the
legal sense).

[1]
[https://news.ycombinator.com/item?id=23379775](https://news.ycombinator.com/item?id=23379775)

~~~
gamblor956
Generally when a party deliberately misrepresents an opponent's position like
this, it's because their own position is legally fucked and they're trying to
move the goalposts so that they have a chance. Alternatively, they've already
assessed their chances at zero and are trying to lay the groundwork for an
appeal.

Reading through their response (the actual filing, not their press release
about it), it appears that the IA has admitted to a number of claims [1] that
would constitute copyright infringement, so it appears they're hoping either
for a miracle or to take this to a higher court and try to get some sort of
ruling that would dramatically alter copyright law in their favor. Neither is
very likely to happen.

[1] For example, they admit that their own founder and executive director
stated that the IA didn't seek consent (i.e., a license) from IP owners prior
to launching the uncontrolled lending program that is the National Emergency
Library. With that admission alone, the judge could grant summary judgment for
the publishers on at least a few claims prior to reaching the discovery stage.

~~~
anonymousab
> the IA has admitted to a number of claims [1] that would constitute
> copyright infringement, so it appears they're hoping either for a miracle or
> to take this to a higher court and try to get some sort of ruling that would
> dramatically alter copyright law in their favor. Neither is very likely to
> happen

When they made the announcement I was very curious as to how they thought it
would be legal or how they thought they would get away with it if it was not.

I'm quite surprised that they simply didn't have any realistic plan for this
outcome.

It's a shame, because I think their core cause is a good one, and now they're
likely facing a mortal blow for something transiently related.

------
stochastastic
While I understand why authors may not like the IA’s emergency program, I find
the language to describe it confusing. A number of comments here use the term
“uncontrolled digital lending”, and it took me a bit of reading to discover
that the files still had DRM and would “expire“ after a set time. The phrase
paints a picture of the IA sending unprotected PDFs to anyone and everyone. I
think it is confusing at best.

Authors, I don’t think the confusion does you any favors. I was more
sympathetic to your concerns before I read your comments.

~~~
jjcon
They distributed an unlimited number of copies - not backed by anything
physical. That being the case, there is effectively no time limit on how long
you can borrow something (you can just re-check it out).

That is just straight up piracy. They lent copies they did not own.

They tried to justify it by saying libraries were closed but they ignored the
fact that more than 90% of libraries already have digital lending programs
that went through the due processes and are legal.

~~~
trewnews
> They distributed an unlimited number of copies - not backed by anything
> physical.

So like money?

~~~
jjcon
The supply of money is definitely not unlimited... if it is I’d like a few
million dollars please.

------
ilamont
> These publishers call for the destruction of the 1.5 million digital books
> that Internet Archive makes available to our patrons. This form of digital
> book burning is unprecedented and unfairly disadvantages people with print
> disabilities.

Book burning? It is not a politically motivated campaign to destroy books, or
a witch hunt to root out deviant social or religious teachings. It's a dispute
over copyright law. I believe that Ray Bradbury, were he alive today, would
have likely come out against this characterization. The Science Fiction and
Fantasy Writers of America (SFWA), which Bradbury was long associated with,
has been critical of the IA's actions from the beginning
([https://www.sfwa.org/2020/04/08/infringement-alert-
national-...](https://www.sfwa.org/2020/04/08/infringement-alert-national-
emergency-library/)).

In addition, I thought the justification for expanding controlled digital
lending was around COVID-19, not rights for people who have low vision. Was
this issue a central part of the the IA's reasoning before the lawsuit?

~~~
burkaman
> It is not a politically motivated campaign to destroy books

You don't consider a legal dispute over copyright to be political?

~~~
NoSorryCannot
It's political but it's not capital-P political.

Politics is a sufficiently broad idea that virtually all the machinery of
society would qualify, but what's being spoken about here is the kind of
politics that has to do with propaganda and information control. And indeed,
this is not that.

There are many different usages of the word. The one in legal theory that, for
example, is used by courts to exclude cases of a "political" nature is of
course different from the one used in academia or else all cases would be
forbidden!

~~~
burkaman
I think copyright is about information control.

I'm not trying to be pedantic, I just don't think there's much difference
between "Politics" and politics, and filing a lawsuit is a clearly political
act. Politicians write laws so that they can be used in court. Even more
straightforward-seeming court cases, like murder trials, are political in that
the government can't apply every law to every person all the time, so it has
to make political decisions about what laws and what people to focus on.

In this case, a large organization is asking the court to interpret a law that
effects a huge portion of American society and determines when and how
information can be spread. In the US, the court's interpretation of a law is
as important if not more important than the legislative process that created
the law.

~~~
NoSorryCannot
I really can't see a resemblance here with the kind of nefarious machinations
with an agenda that are being referenced.

Copyright doesn't really control or distort the flow of media or ideas in a
way that favors any particular politics.

------
mcguire
" _The publishers’ lawsuit does not stop at seeking to end the practice of
Controlled Digital Lending. These publishers call for the destruction of the
1.5 million digital books that Internet Archive makes available to our
patrons._ "

If nothing else, that should prevent anyone from supporting the publishers.

------
DominikD
What IA did was counterproductive to the concept of CDL. I think most people
agree on that. But what I find disheartening if that the majority voice is
that what needs protecting more is not people's access to the information but
publisher's ability to profit off of it. On the one hand this is a very HN
response so I shouldn't be surprised. On the other I simply find it sad.

~~~
Causality1
Would it be nice if we did away with book scarcity and paid all authors
exclusively through Patreon? Sure, that'd be great, but we can't force authors
into that scheme against their will.

Peoples' access to that information was and is not in danger. If you can't
afford a book you can take the tiny legal risk of pirating it yourself.
Lending books is cute and handy but the important part of the IA is, well, the
archive of the internet. People are upset because they put the archive in
existential danger by pulling an incredibly stupid bit of legal activism. It's
like protesting the illegality of raw milk by feeding it to your
immunocompromised child.

~~~
nybble41
> Sure, that'd be great, but we can't force authors into that scheme against
> their will.

We certainly can't force authors to continue publishing, but we wouldn't be
forcing them into anything by revoking some or all of the _privilege_ referred
to as copyright. That would simply be a long-overdue recognition that we no
longer consider this experiment in social engineering to be in the best
interest of society.

~~~
nickff
Getting rid of copyright for content may lead to extensive DRM for books; I'm
not sure whether you're in favor or against, but HN seems to hate DRM.

~~~
nybble41
I certainly don't care for DRM, but I recognize publishers' right to use it—so
long as it isn't backed up by force of law. We can't force anyone to make
content available in any particular format, after all. However, most of the
effectiveness of DRM (such as it is, which isn't much) comes from the fact
that you can't legally talk about how to circumvent it or distribute tools for
doing so. Obviously _that_ needs to go; it's an even more blatant violation of
freedom of speech than copyright itself.

From a purely technical perspective DRM on books is particularly futile. If
the page is visible to a human reader then it can be imaged (perhaps with an
external camera) and OCR'd at least as easily as scanning a physical book. DRM
for audio files is in a similar position—not quite lossless, but very close.
With video there is a bit of quality loss from the capture and re-encoding
process, but nothing too serious. It's a bit more effective with interactive
content such as games but still far from unassailable.

------
HugThem
Have they been sued over digital lending in general or because they lent out
more digital copies then they owned physically?

Either way, I think that there is no legal "digital lending". What makes
people buy things is that they can not get them for free easily. Copyright is
there to benefit the author. It puts a certain burdon on the consumer: They
have to buy a copy. Or - if they want to breach the law - they have to find
someone who illegally makes a copy for them.

"Digital lending" would allow the 3rd party to legally make a copy to the
consumer. Because bits are not lended. They are copied. That is not how
copyright sets the balance between author and consumer.

I would be surprised if the IA wins this.

~~~
jawns
Hi, I'm an author, so I have a vested interest in copyright being respected.

Are you familiar with the first-sale doctrine?

[https://en.wikipedia.org/wiki/First-
sale_doctrine](https://en.wikipedia.org/wiki/First-sale_doctrine)

It basically says that once a person buys a creative work, they can do
whatever they want with it, including selling it or lending it.

Controlled Digital Lending is a system that basically says, "Let's make the
first-sale doctrine for digital books work the same as it does for physical
books."

So, a library purchases a digital copy of a work. Then it lends out that copy,
and until that copy is returned, it does not lend out any other copies of the
work (even though it is technically possible to do so).

Note that while the library patron gets to borrow and read the work for free,
the library has already paid for the work, so it is not as if this erodes
copyright any more than it does for print books.

~~~
chadash
> So, a library purchases a digital copy of a work. Then it lends out that
> copy, and until that copy is returned, it does not lend out any other copies
> of the work (even though it is technically possible to do so).

The issue is that IA decided to forgo the rule that they won't lend out copies
of the book until it gets returned and instead decided to lend out as many
copies as they wanted at a time.

~~~
jawns
Yes, I agree with you, and I think IA's uncontrolled digital lending was a
gross violation of copyright.

I was just explaining the Controlled Digital Lending system because the person
to whom I was responding was saying that all forms of digital lending were
problematic.

------
ggm
I get a bit of a Zhou Enlai "it is to early to say" vibe on this (btw he was
actually responding to a different question probably and not the 'what do you
think about the french revolution' question but anyway)

The sense of it for me is that the fight is really important and I'm glad they
are having the fight, sad-but-glad. But, I suspect they are going to be
celebrated for a victory MANY YEARS YET TO COME and in the meantime take
heinous pain on this one, and functionally lose the battle and the war maybe.

Sometimes, the ones who lose the war have history on their side. Germany won
in 1871. The reparations they screwed out of france cause massive economic
pain when they ran through the economy, and at root laid the seeds of WWI. Did
Germany really "win" ?

Publishers have the shitty IPR laws on their side. They will probably win. But
in destroying the Internet Archive, (god forbid) they will cause us, consumers
to visit the "you don't really miss what you've got 'till its gone" and
question the whole deal over Kindle IPR, the book to rent, the disappearing
books, the books never uplifted, the geo-locked books...

------
cosmodisk
Many years ago,when I was a teenager with no money to buy all the nice
magazines I wanted, I came with an idea. I thought how nice it'd be to buy up
all the issues of all the magazines, upload online and then charge a small few
to read them. Then I started thinking of the logistics of such thing,
including how would the publishers react.I came to a conclusion that any
attempt of this sort would be crushed by the publishers...

~~~
52-6F-62
I mean, if you were just stealing content from actively-running magazines then
yeah.

But if you pitched the idea to publishers with a cut-in then it may have sold.

Archival efforts are a _huge_ lift—especially from print to digital. But
current issues have operated that way on several platforms over time.

Ultimately Apple bought up the last major effort in that space (Next
Issue/Texture) and merged/turned it into Apple News+.

There are others, like Pressreader, though:
[https://www.pressreader.com](https://www.pressreader.com) (edit: changed to
plain url)

One of the magazines I work for took it upon themselves to render an archive
of their print and digital issues dating back to the early 1900s. I think they
plan to charge a fee at some point to access them, but they are currently
available for free:

[https://archive.macleans.ca/issues](https://archive.macleans.ca/issues)
("Browse All Issues" to see the range of decades available)

It was a very large undertaking—so based on the knowledge of that experience
[in which I was not involved], there is probably a business in building a
collective, or at least brand-specific, archive for magazines. I'm sure some
businesses exist in that space already—but something more user-friendly and
centralized access would probably have its base.

------
toss1
While digital lending is a great idea and has many justifications, the legal
risks are clear.

What is most troublesome is that no one at IA took appropriate action and
implemented a corporate separation so that the digital lending enterprise was
legally & financially firewalled from The Internet Archive's core mission.
(That is exactly what the corporate structures are for.)

Thus, the entire IA mission is now at risk due to this high-risk activity
without protection.

I hope they can get it sorted

If they don't, who will back up the Internet Archive?

------
6510
If books were invented today how would publishing work?

------
bdg
Okay, so what? It will just land on a TOR node connected to IPFS.

~~~
verytrivial
What fraction people in the world have ANY IDEA what that sentence means? And
how does that square with the Internet Archive's mission?

------
arthurofbabylon
We all know how powerful capitalism is, but our culture still doesn't grasp
its bounds. I think this is most true with knowledge systems: journalism,
library-lending, education.

I'm not sure what the best system structure is for these areas, but I'm
confident that in these cases, profit-seeking feedback mechanisms don't align
with society's goals.

The goals (in my opinion) should be heightened knowledge integrity, increased
accessibility, resilient persistence, and ease of applicability. So – with
these goals in mind, what is the right system structure for library lending in
the digital age? For journalism? For education?

I'm sincerely unsure and super curious.

~~~
syshum
Capitalism is not the issue here. Copyright Regulations are market shifting
regulations that means normal market feedbacks do not exist given we as a
society through our laws grant a monopoly to the creator in ways not seen in
other markets

This artificial scarcity is what causes the appearance that "capitalism fails"
for knowledge systems when in reality it government regulations that are the
source of the failure.

The continued extension of copyright over the years has increased this failure
and created a huge whole in public domain.

Copyright law is now an enemy of knowledge expatiation which is contrary to
its stated goal

~~~
Jasper_
How do you propose to adjust capitalism's core reliance on scarcity and supply
and demand (supply of a digital good is infinite!)

I have never seen any serious proposals, hence we're trying to uphold
capitalistic structures by enforcing artificial scarcity, to build a
marketplace where capitalism's assumptions hold. I don't think you can tear
down copyright and artificial scarcity without tearing down capitalism.

~~~
syshum
I dont think you can eliminate the artificial scarcity, but I do support
returning to the Orginal Copyright terms of the US

14 Years to the content creator, and 1 extension that has to be applied for by
the creator personally (not a business, not an estate)

For Corporations the copyright term is 14 years, for an individual creator it
would be at most 28 years.

none of this 100 years+ copyright monopoly we see today under current law

