
My thoughts in response to the lawsuit against the Internet Archive - edward
http://blog.archive.org/2020/07/22/libraries-have-been-bringing-older-books-to-digital-learners-four-publishers-sue-to-stop-it/
======
dmurray
> With this suit, the publishers are saying that in the digital world, we
> cannot buy books anymore, we can only license and on their terms; we can
> only preserve in ways for which they have granted explicit permission, and
> for only as long as they grant permission; and we cannot lend what we have
> paid for because we do not own it. This is not a rule of law, this is the
> rule by license. This does not make sense.

If that's the main argument of IA, they'll have a tough time in court. It's
reasonably well established that when it comes to intellectual property, you
_can_ refuse to sell it, and only grant a limited license. With some small
carve outs like the First Sale doctrine.

They'll need a judge who is willing to legislate from the bench.

~~~
grawprog
It makes me sad we live in a society where profit is the first and foremost
consideration for anything. Preserving history, human creativity, the progress
of society, the betterment of future generations all comes second to profit.
How many things will get or have been lost to time or just lost in general
because they didn't make or cut into profit?

The internet archive may have its faults, but its value to humanity is
something that should be considered. It's sad it won't be. The only
consideration will be how they cut into profit and on those grounds they will
be penalized.

I realize this isn't the audience for this kind of comment, what with being a
news site for a profit driven startup culture, but this profit driven culture
we have is going to destroy so much before we even realize what we've lost.

~~~
mulmen
I think that's an unfair take on the law. If you create something you decide
what happens with it. That seems reasonable to me.

Why are the rest of us entitled to your creation?

~~~
grawprog
There's a good modern day example we could look at. Reggae music. Jamaica
lacks (or did) copyright laws. Because of this, music was reused over and over
again. From the 1950's onwards, kids, poor people, anyone with technical
knowhow could build a soundsystem, cobbled together from spare parts, get some
records and play music. Eventually, many of those people went on to form
recording studios and such. Because there was no laws against it, music was
widely taken and reused amongst different studios, to the point where these
same songs are still being remade today. Because of this, many, many people
were lifted from poverty and were able to make careers from this, to the point
where reggae has become a global phenomenon, primarily outside north america,
where people are still taking these songs and making new versions of them.

Over the years, because of this system, not just the original creators, but
hundreds if not thousands of people have benefited, profited and bettered
their lives because of music originally recorded in the 1950's and 60's by
people, in many cases, long dead.

Under the north american system, the copyright owner would have made millions
of dollars, and entire genres of music would.never have been created in their
current form.

The value to humanity in that situation far outweighs the profit of the
original creators.

~~~
hombre_fatal
> Under the north american system, the copyright owner would have made
> millions of dollars, and entire genres of music would.never have been
> created in their current form.

Not the most convincing conjecture when the "loser" in your comparison is one
of the biggest music genre-creating powerhouses in the world and its music is
rife with sampling, and the "winner" in your comparison is mainly known for a
single genre of music.

~~~
currymj
many of those sampling heavy American music styles (hip-hop, much electronic
music) were very directly and strongly influenced by Jamaican dub which grew
out of reggae.

I think the argument is reasonable that we don't get any of it, at least not
in the forms we have now, without Jamaican music. DJ Kool Herc was Jamaican.

on the other hand, it is definitely true that the American music industry with
its strict copyright has not exactly been stagnant. but it is different.

------
threepio
I love Brewster Kahle.

He doesn't get nearly enough credit for being one of the VERY few tech
zillionaires who has dedicated his subsequent time and money to creating an
enduring and necessary public-spirited resource.

(And that part of his career all happened __after __he & Hillis created the
Connection Machine.)

He epitomizes the intellect and curiosity and good ethics that I associate
with old-school hackerdom.

I don't know if he can win this dispute. I hope so.

------
vuln
I have a monthly reoccurring donation in the amount of $10.

If you haven’t donated please do.

[https://archive.org/donate/](https://archive.org/donate/)

~~~
remram
I had a recurring donation _until_ they decided to take a step that was
obviously going to get them sued. I support IA's mission and products, but
won't throw money in legal proceedings they set themselves to lose; I feel
like this is better spent on EFF etc who are serious about it.

I object to modern intellectual property and publishing practices as much as
anyone, but what did they expect would happen when they dropped their entire
legal justification?

~~~
Apocryphon
The EFF is taking up the legal defense in this suit, so your donation would be
ending up at the same place anyway.

~~~
remram
I knew that! And I have no problem with it, since EFF are upfront about what
the money is for (and are probably better/more rational about the battles they
pick)

~~~
jachee
But... EFF _also_ picked this battle.

Honestly, you may be able to split it between them and ultimately do more good
than the sum of the halves.

~~~
remram
So they did! However I can expect that if the odds turn bad, they won't waste
money grasping at straws. If IA decides to pull another similar stunt, EFF
probably won't defend them there. More importantly, I am not enabling those
stunts with my support and my money, at least until this one is resolved.

Of course I do hope EFF gets them acquited somehow, but I don't like those
odds (and they probably didn't either and charged ahead regardless, which is
my problem).

I would love to "split the halves" like you said, and would if I had any
assurance that the half they get supports things like the WayBack machine.
However for all I know, they'll just use it to make the whole Netflix
catalogue available for free next month. I guess what I'm trying to say is
that their management lost my trust.

------
bmarquez
I'm confused by this article. As I remember Archive.org created a "National
Emergency Library" basically breaking the 1:1 ratio of physical to digital
books in Controlled Digital Lending, and allowing unrestricted use.

The lawsuits were brought on June 1st, while the NEL was active. Are these
lawsuits based on the CDL (which I personally support) or based on the NEL
(which could be considered piracy)?

~~~
pwinnski
According to this post, they did not break the 1:1 ratio of physical to
digital books, but expanded the pool of physical books to include those unlent
at libraries across the country. That is certainly a debatable point, though.

More to the point, the lawsuits are in effect and moving forward now, long
after the NEL has ceased operations. They are directed at the CDL now.

~~~
duxup
It seems strange to loan a digital copy of ... someone else's book.

As for the lawsuit going on after they stopped lending, well yeah the legal
matter wasn't settled, so it can go on.

~~~
jVinc
Why should it seem strange? If you own stock I can lend it and sell it
outright, and as long as I buy it back and provide it to you at the exit of
the deal everything fine.

If you own a book and I buy it but under a deal that defines you should keep
it locked up in a safe. I still own it and have the right to lend it out
digitally under CDL, yet it's physically with you. Why is it strange to forgo
that madness and just let me provide digital lending services on your behalf?
I mean just because it's my lending system doesn't mean I should need to own
everything that's being lend out. Amazon doesn't have to own everything they
sell.

~~~
WalterBright
Ironically, the same thing happens with banks under a fractional reserve
system. If the bank has $1000 in gold, they can lend out a virtual $9000 of
that gold.

------
patrickhogan1
I love the IA. But it is so clear the argument made is written by a lawyer
after the fact. Reading between the lines of the lawyer speak:

1\. The books were not locked up and out of the reach of students. Students
were able to take their books home. Yes class was over Zoom. Teaching from the
same books previously used in the physical classroom. College classes have
done this for decades using physical books for online courses.

2\. Public libraries throughout the country ramped up digital online access at
the start of COVID-19. Students were able to get online library access. It's
possible that some obscure books were non-digital (650 million books seems
like a stretch). But, obscure books are mostly unused in the classroom.
Schools usually assign students classics like "The Giver” which are digitized.

3\. The argument is made that IA has a right to lend the books digitally,
because it owns a copy of the books. Because any rational person can
understand the quantity of books IA digitized casts doubt on if they own a
copy. The argument shifts quickly to saying it had a right to digitize because
of its 130 “endorsing” libraries.

4\. Some of these 130 libraries did not "endorse" IA until after the lawsuit
was filed. By the point of the lawsuit the service had been active for some
time. Meaning the copyright infringement had already occurred.

5\. IA has lawyers on payroll to advise IA on their main product. Which is
archiving of copyrighted web content. Meaning that a lawyer likely advised IA
before the service started that a library "endorsing" support for a cause !==
to a licensing agreement allowing the endorsed cause to use the endorsing
libraries’ licensed content.

It should be noted that libraries pay for books. Libraries are a public good
and funded by methods such as government funding and donations. Yet they have
real expenses.

Imagine a city library. Library cards are limited to city residents. For
example, think of a city with 1M residents. That puts a cap on the license
costs they will pay for content. Imagine IA serving the world 7B or even just
the US 365M. Whoever sells content to the library that is co-sharing content
with IA would be charged such exorbitant prices either:

1) the library is unable to license content 2) the library shuts down. 3) the
library stops working with IA

IA can be a library. But they have to act like one. Pay for your content like
public libraries do.

~~~
thatcat
>Library cards are limited to city residents. For example, think of a city
with 1M residents. That puts a cap on the license cost.

So you're saying that the amount libraries pay for a book is proportional to
the number of residents in that city?

~~~
ghaff
He said "license cost." And, yes, I'm pretty sure how much libraries pay for
digital licenses is at least partly based on the size of the population that
they're serving. I doubt my small town library pays the same for licenses as
the Boston Public Library does.

~~~
BbzzbB
Don't they just pay a certain amount per "digital licence"/how many copies
they can lend? For instance, my library has an X amount of "copies" of ebooks
it can lend, I actually never use it because anything that interests me is
always "out of stock" and you have to reserve the next available slot.

------
8bitsrule
I'm glad to see the names of the publishers involved in the lawsuit -
"Hachette, HarperCollins, Wiley, and Penguin Random House" \- out on the open.
I will gladly avoid purchasing books by the companies that are threatening
this remarkable digital institution in a time when hundreds of physical
libraries are closed.

------
theferalrobot
> In total, 650 million books were locked up just in public libraries alone.
> Because of that, we felt we could, and should, and needed to make the
> digitized versions of those books available to students

Libraries also have movies and music... should they have put those out for
free too? I love wayback machine but I’m not sure I follow the logic on this
one. I’m no legal expert but that seems like pretty iffy reasoning.

~~~
joshuahaglund
Using controlled digital lending, yes. Why not? The libraries hold licenses to
lend this media in physical format but were temporarily shifting to lending
using controlled digital lending.

They didn't just give away unencrypted copies to be pirated. They did what
libraries do, lend media.

~~~
ApolloFortyNine
They lent unlimited copies. The limit is very very key to being covered under
CDL.

~~~
bscphil
The article itself appears to be claiming this is not true: every book they
lent was endorsed by a backing library, such that the physical book was
guaranteed to be sitting in the stacks, not lent to anyone, whenever the
digital copy of the book was in circulation.

~~~
542458
This justification appears to have happened after the fact - As far as I can
tell the endorsing library program postdates the National Emergency Library.
They’ve never mentioned the endorsing library program in connection with the
NEL until very recently that I can see.

Additionally, they explicitly waived all waitlists when they launched the
program, and spoke about is as if controlled lending had been temporarily
abandoned (whereas now they’re saying it was still CDL, just with a larger
source pool). As far as I can tell, this is all a post-hoc attempt to make the
whole affair more legal.

~~~
bscphil
That could very well be true, I'm simply pointing out that OP appears to be
stating as fact something that the article denies.

> Additionally, they explicitly waived all waitlists when they launched the
> program, and spoke about is as if controlled lending had been temporarily
> abandoned (whereas now they’re saying it was still CDL, just with a larger
> source pool). As far as I can tell, this is all a post-hoc attempt to make
> the whole affair more legal.

Well, obviously a post-hoc justification wouldn't make it legal. But on the
other hand, if what they did was legal all along, the fact that they
misleadingly described it at the outset in a way that made it sound illegal
presumably wouldn't make it illegal.

It's not 100% clear to me what the justification is supposed to be. The
article clearly seems to be implying that their lending was 1:1 with physical
copies. If that's false, then obviously making this statement is not going to
help their legal case, because the truth of it will be revealed in the course
of the lawsuit. If it's true, then what was novel about their approach as
discussed in the press release back in March? My best guess is that it has
something to do with the physical libraries all being closed - that this
enables more 1:1 lending because of the "650 million" books locked up, even if
not each individual book was scanned separately. If that's not what they're
claiming, I'm not sure what the point is.

------
gorbachev
"With this suit, the publishers are saying that in the digital world, we
cannot buy books anymore, we can only license and on their terms;"

And this is why I still prefer physical media. I own it and I can do whatever
the hell I please with it. Not so with almost every digital media platform
I've seen.

Well, other than platforms built on piracy.

~~~
twox2
>I own it and I can do whatever the hell I please with it.

Not really... IP law still applies. You can't photocopy the book and sell it
or give it out without consequence.

------
dreamcompiler
It has been stated many times that if today's copyright laws had been in
effect 200 years ago, US libraries would never have been allowed to exist.
This situation looks to me like a fresh attempt by the beneficiaries of
copyright law to destroy libraries in general; not just the IA.

Between this fiasco and paywalls around scientific literature, it's becoming
impossible for me to see publishers as anything other than cat-stroking Bond
villains.

~~~
murphy1312
And thats why i like libgen..

havnt paid for a book in some time, cause most/all ebooks are overpriced af
imo.

And also how can i resell my ebooks? why would i pay the same price as a
physical copy then..

------
karlp
Considering they were only lending to one person at a time, it does seem like
the lawsuit is uncalled for.

~~~
martin__
Last I heard from this story, the lawsuit was because of unlimited lending:

[https://news.ycombinator.com/item?id=23391662](https://news.ycombinator.com/item?id=23391662)

~~~
criddell
I wonder what the truth is. In this article Kahle makes it sound like they are
lending one digital copy for every physical copy that is locked up in a
library somewhere and not circulating.

~~~
jandrese
From what I understand that was the original policy but when COVID hit they
announced that they were removing those restrictions. Commenters went “you’re
gonna get sued” and then archive.org was all surprised Pikachu face when their
mailbox filled up with lawsuits.

------
duxup
I thought Internet Archive started loaning books ebooks beyond their usual 1
ebook to 1 digital copy system?

The paragraph that addresses this isn't clear to me as it seems to indicate it
was 1:1 (although at the time everyone seemed to think it wasn't) and then
that paragraph seems to note all the books stuck in other libraries... did
they feel they were loaning out ebooks associated with all the libraries that
were closed too? Was there some sort of legal arrangement there?

This letter seems very non specific on a critical points....

------
Borlands
IA is one of the most valuable resources on the web, and has been for quite a
while. Hope they come out of this in a good way.

------
eldaisfish
Nothing makes me more angry than publishers who act like this. I regularly
deal with the academic publishing industry and feel the pain of professors and
students alike.

The usual suspects are involved here -

>I call on the executives at Hachette, HarperCollins, Wiley, and Penguin
Random House to come together with us to help solve the pressing challenges to
access to knowledge during this pandemic.

The publishing industry should take a cue from the gaming industry. Offer
games at a reasonable price, make delivery easy and you only stand to profit.
Services like Steam, GOG, Epic et al have massively reduced game piracy. If
books were being sold for a couple of dollars each online, we would not need
lawsuits like this.

~~~
wnevets
> Services like Steam, GOG, Epic et al have massively reduced game piracy.

This has absolutely been the case for me. I went from pirating everything to
having so many games that I've paid for but haven't played yet. I'm sure part
of it is being older with more disposable income and less free time but its
just so much easier to buy the game on steam.

~~~
an_opabinia
You'd never know the difference between reducing game piracy and making games
that cannot be pirated.

~~~
IggleSniggle
I don't know about others, but I almost exclusively play single-player local-
only games these days. I don't have time for multiplayer games.

------
nabakin
What about all the copyrighted books put up for free, unlimited downloads? For
example [1].

[1]:
[https://archive.org/details/01TheLightningThief](https://archive.org/details/01TheLightningThief)

~~~
britmob
Those are user-uploaded, so the appopriate copyright holder can DMCA them.

------
avemilia
> Controlled Digital Lending is a respectful and balanced way to bring our
> print collections to digital learners. A physical book, once digital, is
> available to only one reader at a time.

I never understood this "lending" practice. Can somebody explain? Sounds like
obscurantism to me. So, if there is only one digitally scanned copy of an old
book, only one person on planet Earth can borrow it? Because I remember a few
times when I clicked on some document in IA and it said I couldn't read it
"because it was borrowed".

~~~
rocqua
It is using the existing carve out for library book lending in the physical
world, and applying it to the digital world.

So if the book is old enough to not be covered by copyright, they can
distribute as many copies as the want. Otherwise, in order to use the library
carve-out, they need to limit it to the number of physical copies taken out of
circulation in actual libraries.

------
gigama
Glad to hear directly from Mr. Kahle on this topic and fully support IA's
mission to buy, preserve, and lend digital books and similar materials.

Seems Hachette, Harpercollins, Wiley, Penguin Random House have not fully
considered the mass boycott they are inviting by their petty, greedy lawsuit.

------
chx
> Over 130 libraries endorsed lending books from our collections, and we used
> Controlled Digital Lending technology to do it in a controlled, respectful
> way

Respect to whom? Not to authors! Most of the value of a book is in the first
reading and if people can read it for free why buy it? And no, lending out
_unlimited_ copies is _not_ what libraries do.

Yes, this is artificial scarcity. Tearing down the Berne Convention, however
can not be done this way and also calling heaping additional stress on authors
during COVID "respectful" is a slap in the face.

I have been pirating software 1985-2004, I have been a columnist in the 1990s
and learned about the new copyright law from the Hungarian copyright
collecting agency and explained it to the whole country. I have been on both
side of this fence for an _extremely_ long time and I can't imagine what the
IA was _thinking_. Risking the Wayback Machine with this is :(

------
walterbell
Should the web archive organisation be legally separated from the lending
library, to protect Internet history in the event of losing the lending
library lawsuit?

~~~
s1artibartfast
It would have been a great idea before this. if they survive, they 100% should

------
iJohnDoe
IA needs to make it much easier to have content removed from their archive. A
simple form and a simple verification step.

Their robot.txt BS does not work.

------
aSplash0fDerp
Foundations matter, so legally this is a raw emotion debate and only changes
the course of the IA (pivot while the forgiveness/permission quote still
applies).

Maybe proposing an annual charity drive for "published" material to fill these
new "shared resource" vacuums that you`ve uncovered will satisfy the hybrid-
capitalism model that you desire.

Making teaching resources HC compatible (with permission windows or
indefinitely) may make compromise-it-forward a movement that is uniquely
yours.

Even though Nielsen and the music charts have not figured out how to
accurately count digital figures, the tax deduction angle looks promising as
part of a formal model.

------
jjcon
Archive is clearly getting awfully nervous about the current lawsuits against
them - I’m not sure this is going to do them any good though.

~~~
kiba
Whataboutism what?

As far as I am concerned, we should be preserving knowledge and making it
accessible to the public, not locking up knowledge forever.

~~~
luckylion
Should anyone get compensated for creating the knowledge? If you "lend out"
unlimited copies for a single copy you own, that compensation gets pretty much
limited to a single copy and thew few copies that friends, family and fans
buy, doesn't it?

~~~
abbub
Within reason, sure? The idea that that compensation should exist in
perpetuity is nonsense, particularly when the people who most often are the
ones getting compensated aren't actually the one's responsible for the
'creation' in the first place. But let's be clear, people very seldom 'create'
knowledge, they extend existing knowledge. That's one of the main reasons why
the human race has gotten as far as we have. It's something Newton understood
very well, and but modern hubris seems to disregard.

~~~
luckylion
> But let's be clear, people very seldom 'create' knowledge, they extend
> existing knowledge.

That's semantics, you can just as easily frame that as "creating knowledge
that will be added to the wealth of human knowledge".

The point is that IA's idea about unlimited parallel lending (that is,
essentially, a free download portal) is a problem unless there's a different
way to compensate the authors & publishers. I don't think they suggested a
different way and are trying to make it about "knowledge itself", and not
their unilateral abandonment of laws & contracts.

------
blumomo
Internet Archive stores the history of the internet. There’s someone who’s
afraid of it, there’s someone who wants to erase history and write a new one.

------
throwaway-92831
If you want something removed from the Archive, now is the time to make your
request.

Who knows what hands the data will end up in after they're gone.

------
nashashmi
This article is very well written and very helpful. It presents the case for
digital lending quite well.

But in the last 20 years, pirates have abused digital copies of data and given
digital copies a bad name.

Today the publishers are sore from that experience. And they fight like they
always did before.

But they will use court cases against pirates to justify suit against IA. And
that sucks.

Judges worldwide have sided with opposing sides on the issue. No consistency
has been reached. It is clear that courts cannot interpret these issues with
consistency.

So legislatives must CREATE rules for digital content and digitized content.
And they are not the same. The latter is conversion of data into a less than
digital format and this takes effort, the kind of effort like buying tires,
creating molds for them, and distributing tires made from those molds.

Current copyright laws do not distinguish between digital and paper products.
Paper products before year 2000 should be digitizable. After should need to be
paid a fee. And lending should be clarified.

~~~
Vespasian
Well, some countries already created legislation to settle the issue (Public
Lending Right)

In Germany for example, libraries pay a few cents (~3-4) every time they lend
out one of their books / films / etc. AFAIK this is also true for digital
copies which are also limited to the number of licenses the library acquired.

