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EFF and heavyweight legal team will defend Internet Archive against publishers (torrentfreak.com)
600 points by toomuchtodo 10 days ago | hide | past | favorite | 263 comments





[I typed this up as a reply to a comment that has now been flagged. I think it's a conversation worth having, so I'm putting it at the top level instead.] I'd argue that "intellectual property" is fundamentally different from physical property, and can't really be "stolen" per se.

If I steal your car, I have a car and you don't have a car. If I "steal" your book, we both have the book. I'm better off, and you're no worse off. In an "ideal" society, the free sharing of knowledge would be not just allowed, but encouraged.

I imagine there's been measurable harm to our society's cultural and scientific advancement because copyright forces us to recreate others' work instead of building off of it.

But what does that world look like? Quite frankly, I'm not sure. Of course, we can't just abolish copyright with no replacement; it's certainly necessary to reward the creation of this work somehow.

One thing I've thought about is a sort of "crowdfunded patronage" model, where the creator of a work declares upfront how much money they want to make off of it, and releases it into the public domain once they've received that much money.

Another possibility is drastically reducing the term of copyright to 20 years or so. That'd still give 20 years to exploit the work—and I imagine most copyrighted works make most of their money in the first 20 years—while allowing others to reuse the work much more quickly.


You're channeling Thomas Jefferson, who himself channeled a Zoroastrian idea. Jefferson said: "... no one possesses the less because everyone possesses the whole of it. He who receives an idea from me receives [it] without lessening [me], as he who lights his [candle] at mine receives light without darkening me." [0]

The flaw in this concept is the free-rider problem:

1. Not all new IP can be created as a side project without funding.

Suppose that I have to come up with an investment of $X million to pay for the goods and services needed to develop something.

(Even assigning existing employees to do the work is an investment, because the money used to pay them presumably could be used for something else — i.e., investing in the new thing represents opportunity cost.)

Suppose also that the resulting IP is easily copied once the new product or service is out in the open.

Without some kind of legal monopoly under IP law, copiers — who aren't burdened by my development costs — can quickly run the market price down to marginal cost.

2. A marginal-cost market price means that I can't charge enough to be able to recoup my investment while still staying competitive.

That, in turn, means that I'm unlikely to be willing (or even able) to fund the investment needed to develop the IP.

3. That's why the U.S. Constitution, article I, section 8, clause 8, allows Congress to create IP rights for limited times.

[0] https://uh.edu/engines/epi792.htm


There are free-rider problems everywhere. From a "rights" perspective, the fact that you can see a free-rider problem and have an idea for some kind of law that you think would improve incentives doesn't justify using legal force to impose these changes on everyone else. But I'm not sure how many people there are these days for whom a "rights" argument carries weight.

For a more empirical approach, I think it's worth looking at "Against Intellectual Monopoly" [1], from 2008. "Chapter 8: Does Intellectual Monopoly Increase Innovation?" [2] may be of particular interest.

[1] http://www.dklevine.com/general/intellectual/againstfinal.ht...

[2] http://www.dklevine.com/papers/imbookfinal08.pdf


Very good stuff to read. I'm sure many like me came to the same conclusion on a [shall we say] more emotional level where a few good examples are enough to tip the scale. That book really demolish the monopoly rights from a functional perspective. An argument much more convincing for those who still think patents have merit.

Prince applauded Napster and said people could finally go back to making music for the sake of making music.

I personally don't consider any entertainment important enough to play a role in the design of society. As long as people are working themselves to death merely to sustain themselves they shouldn't be made to pay for your entertainment in any way.

That it also doesn't make any technical sense never truly occurred to me.


The fundamental issue with our copyright and patents laws are the length of validity. This in turn breeds more issues (with patents in particular) encouraging frivolous patents because there is such a long potential return on investment period.

I recommend we decrease patent durations of all varieties by about 50% (patents should never last longer than 10 years as they do now [0]). For copyrights, there is some merit to not allowing others to take over your work during the life of the author. But for anonymous works, works that have transferred ownership from the author, and for copyright terms after the death of the author, I would agree to a similar limit of 10 years of copyright.

[0] https://www.justia.com/intellectual-property/patents/duratio....


Small nitpick here. For drugs, novel drugs in particular, 20 years is actually the required amount of time for the pharma companies to actually turn a profit. The patent applications are submitted as soon as a viable drug is discovered. After this, it requires 10-15 years of animal testing, clinical trials, etc with costs amounting to 100s of millions to billions of dollars before it can be brought to market.

https://www.healthaffairs.org/doi/abs/10.1377/hlthaff.25.2.4...


> For copyrights, there is some merit to not allowing others to take over your work during the life of the author.

Care to expand on that?


If I'm understanding correctly, they are saying that people shouldn't be able to take over a copyrighted work during the lifetime of the original creator.

I would think this would make sense in some cases, like writing a story, and less sense in some others (software source code).


This assumes the creation of intellectual property is socially productive in itself. There's plenty of an actual property that doesn't need to exist, even if it costs a lot of money to develop. There's no reason the state couldn't efficiently allocate resources for the rest and give it immediately to the public domain.

The initial conclusion your parent presents is the exact ruling in Dowling v. United States.

>Interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

https://en.wikipedia.org/wiki/Dowling_v._United_States_(1985...

.....

I do think grouping all IP into a bucket muddies the conversation. Trademark infringement, where one assumes the name of another product, possibly selling a counterfeit is closer to theft. It involves defrauding the consumer, and displaces a legitimate sale with a copy.

Copying a product, and selling it or giving it away free is one type of problem, but assuming someone elses trademark to mislead is a different magnitude of problem.


seems like a basic problem with our economic system if there're useful things that need to be done but no one is able to do it without it costing them. or, if most ip isn't useful, then why do we need to incentivize it so much?

> But what does that world look like? Quite frankly, I'm not sure. Of course, we can't just abolish copyright with no replacement; it's certainly necessary to reward the creation of this work somehow.

Why can't we? Wouldn't even that state be better than the current one, where publishers outright steal (in true meaning of the world) revenue from YouTube content creators because there might be a sound that's similar to some song written 30+ years ago?

The current state is so one-sided and abusive that it's not obvious that no-copyright world is worse. Heck, down this same thread we have people calling people who put books on the internet for everyone to read "criminals". How messed up is that?


> where publishers outright steal (in true meaning of the world) revenue from YouTube content creators because there might be a sound that's similar to some song written 30+ years ago?

Conversely for every one of these there are easily 1000 YouTube videos that shamelessly steal IP outside the bounds of fair use and nobody does anything. If pewdiepie posts a 30 second meme clip from the latest avengers people think it’s funny but if Disney used 30 seconds of pewdiepie in a movie without permission the internet would go nuts and lawyers would be lining up. Should copyright treat them so differently?


Copyright _does_ treat them differently. It's why fair use exists. Is Disney entitled to fair use inside a paid/sold product, with no criticism or enhancement?

Memes aren’t inherently fair use

Most people support copyright because they think content creators should be rewarded for their work. Unfortunately, the copyright laws that we have do much more than that, and that's a problem.

I support minimalist copyright laws, where for a set period of time (shorter than current copyright) an author/creator is the only person who can profit from work. For instance, an author publishes a book, and for 10 years is the only person able to sell copies, sell the manuscript to a publisher, etc.

But after 10 years, that book is essentially public knowledge. It's been out there, maybe some people have memorised portions of it, it's been read in a library far more times than it's been purchased, etc. At that point, I see no societal benefit to maintaining copyright. My own moral framework does not require an author to be rewarded indefinitely for their creative work (imagine if a builder and their estate received royalties every time somebody entered a building they constructed for 70 years? Absurd.)

I also have a huge problem with creative "rights". Take Harry Potter as an example. Everybody knows about Harry Potter, anybody could tell you the story, some people could probably reproduce a very rough abridged version from memory. It is part of our culture, cannon, consciousness, whatever. It's popular.

Now, if I want to make a Harry Potter game, or write a play, or do a live dramatisation, etc, I owe JK royalties. That to me is not fair. She has been rewarded for her work many times over. The ideas and the characters are now in everybody's minds. We know them. If I want to adapt them or discuss them through a creative work, I should be free to do so.

I often use the example of Ancient Greece to explain this. Almost all the written stories and poems we have from that time are simply written versions of stories told aurally. The Illyiyd as we have it is just one version that somebody wrote down of possibly hundreds of spoken versions that existed at the time. The Greek plays were part of their culture and were freely shared. Anybody could build on them, change them, and referencing them in new works was an honor to the original creator (if they were even known). It is very sad that the West has now favored infinite profit (I.E. copyright that lasts a lifetime) over the spreading of ideas and the sharing of common cultural references freely.


> Of course, we can't just abolish copyright with no replacement; it's certainly necessary to reward the creation of this work somehow.

You say "of course", but let's examine that. Consider the free software movement. I work full time on D, and anyone can use D for any purpose they want to and don't owe me anything. Just like all the other open source software out there.

And yet, OSS is thriving and is often best-of-breed.


I am a big supporter of copyright reform. However, I think we do need some nuance when it comes to comparing OSS and multimedia/creative work.

On OSS, the only people working on it are people that a) volunteer to work on it b) people that are paid by a larger organisation to work on it (e.g. given x hours/week to work on OSS).

In film/TV, people do not volunteer to act, or edit footage, or operate cameras. Yes, there are indie films, and indie creators. They're all over YouTube. But big budget AAA effects cost money, and somebody has to pay for them. There has to be an incentive to create this content that is monetary.

Now, I am personally in favour of reeling back copyright to only protect the profiting off of work (i.e. only the original creator can sell copies of their work for a limited period of time), but anybody is free to reproduce without profit. And then after x period of time (10 years for instance), anybody is free to also sell it or use it in commercial works/adaptations.

I see no societal benefit to content creators being rewarded in perpetuity. You wrote a great book? Cool, you can profit from it for 10 years as a reward for your work. After that, you can make money doing speaking tours, or interviews, etc. Guaranteeing royalties for a book that I can go and borrow from a library, or for a film I can go watch at a friends place, for longer than around 10 years does not make any sense.


> But big budget AAA effects cost money, and somebody has to pay for them.

On the other hand, why does society need movies that cost $100 million to make? (Much of that being what the stars cost.)

> In film/TV, people do not volunteer to act, or edit footage, or operate cameras.

Programmers didn't do it much for free before OSS.

> Yes, there are indie films, and indie creators. They're all over YouTube.

Exactly.

> There has to be an incentive to create this content that is monetary.

Does there? Before OSS, people said the same thing about software.


>On the other hand, why does society need movies that cost $100 million to make? (Much of that being what the stars cost.)

I personally like some of these big budget movies.

This reminds me of when I was talking on reddit about OSS games and if it would work if everyone did OSS games. I countered to another comment that modern games require a lot of money because artists have to put in a lot of work to make the music and textures and images, coders have to put out a lot of lines of code, etc.

To which the reply was "I don't like these games anyway, I prefer text-based games without any of that."

That reply isn't wrong per-se, it just misses the target. Maybe you question why it's necessary or you simply don't enjoy them. But other people do and taking away something they enjoy needs to be weighed against why you're taking it away.


I do enjoy (some) of them.

But I often find a lower budget movie more enjoyable as the tend to concentrate more on having a better plot and wittier dialog.

In any case, if LOTR is what I have to give up in order to get an explosion of creativity by removing most copyright barriers, it's a fair trade.


I don't think it's an entirely fair trade.

> Programmers didn't do it much for free before OSS.

Yes they did. Most people started their programming careers by doing it for free at home. The 70s and 80s was full of people working on coding projects and sharing it with friends. This is what the OSS movement was born out of.

The reason people don't make high quality films as much for free, is because the equipment and much more expensive. And it also requires a coolocated team. It's just a very different ball game, and I don't think you can compare them.


Yeah, there were hobbyists doing it. They weren't writing professional quality software, though.

> why does society need movies that cost $100 million to make?

Why don't they need them? Who decides what is worthy?

The best answer is - the market. Ignore these movies and they might as well not exist for you.


My point is there's a heavy cost to society in the form of extensive copyright protections. Are the relatively few blockbuster movies worth compromising everything else? For example, myself and my buddies cannot create a new Star Trek episode, or a mashup of existing ST footage. I cannot create music that samples other tunes. Etc.

What is the high cost to society? If you want to mashup media that you have not created, you are essentially consuming that medium, or leveraging its fan-base despite not funding its growth. This applies to both large blockbusters, and small indie projects, that expect compensation.

The market you speak about is itself artificial, created by the copyright regime that we have, and its specific rules. Who decides the rules?

> I imagine there's been measurable harm to our society's cultural and scientific advancement because copyright forces us to recreate others' work instead of building off of it.

Part of that harm is in creating monopolistic entities like Youtube because only big players can take on big media. If Youtube didn't have contentID they'd be sued into the ground by the publishers.

> But what does that world look like? Quite frankly, I'm not sure. Of course, we can't just abolish copyright with no replacement; it's certainly necessary to reward the creation of this work somehow.

This is, in many ways, a world in which we already live due to the proliferation of piracy. There's still plenty of monetization opportunities:

- Art commissions

- Patreon

- Ad-sponsored serial content

- Subscription models

- Live shows


Those monetization options pay less than you think they do for the vast majority of creators.

The US copyright regime has been responsible for an amazing exponential growth in IP creation because creators are financially incentivized to create.


> Those monetization options pay less than you think they do for the vast majority of creators.

Traditional publishing has the same issue to a far greater extent, due to the inherent barriers to entry in that model. Something like Kickstarter or Patreon is actually far more equitable. (Bearing in mind that this sort of content provision is very much a superstar sector, with a handful of unicorns and lots and lots of also-rans, so "more equitable" is still quite relative!)


They pay less in a world where people are used to "buying" works rather than funding them. It's unreasonable to think that people would just stop spending their money if copyright was abolished.

I think the dilemma is more important than how we do the copyright laws right now. Sharing is always better as a model, it demands less restrictions for one, less oversight. I don't have a number how much the world population have grown since the laws were inacted, but it's at least in the 10 fold? What works on a "small" number of people might not scale. We as programmers know that. So what gives if everyone wants to be a millionare, which in a sense promotes that ignoring values/others around is a good idea if you yourself get a good life. In an ironic twist the most shared idea is the one that anyone could be rich, and that it is a good thing to be much richer than those around you.

So, what is a good life? I don't see living in a mansion or castle as a good way of life if measured that way. I rather see it how many people I can help along during my stay here, that's my measurement. Of course I absolutely hate copyright and the notion of IP.

Maybe the laws and lengths are good for the life views that people have right now. But maybe there's other incentives than the Right to the work, maybe good work could be measured in an other sense and rewarded more directly in your community. Globalisation when done badly is so bad for us since the ones in that bubble optimize for their own profit instead of the greater good (which is the best scenario in long sight).

Maybe I'm weird, but I am soo tired of the idea that we should only focus on ourselves all the time. Get good ideas out that will solve big problem, reward those that produce those ideas and those that want to do the miles. Less of the, look I changed color of this thing and now I got a patent on it and I will sue you. Reward ideas that makes sharing easier. We as a planet just don't have the time if we want to make it as a whole.


One thing I've thought about is a sort of "crowdfunded patronage" model, where the creator of a work declares upfront how much money they want to make off of it, and releases it into the public domain once they've received that much money.

That's a ransom model. It's one of several [existing mechanisms] for funding free/libre/open (FLO) works… none of which appreciably move the needle on making a living off them.

I've spent a lot of time talking about Snowdrift.coop on HN recently so I'll skip the pitch this time and just link our [wiki], which has a suggested reading order front-and-center; I'm happy to join in follow-up discussion.

[existing mechanisms]: https://wiki.snowdrift.coop/about/existing-mechanisms#fn2

[wiki]: https://wiki.snowdrift.coop/


There's a real cost to government and society enforcing the copyright monopoly for the copyright owner. So why not have the copyright holder pay for upholding copyright?

Imagine differential pricing for enforcing copyright on a work depending on parameters:

- grow with every passing year - change with the level of protection required

  - zero for public domain and free (BSD/GPL/permissive CC style licensing)

  - symbolical amounts for CC no derivatives or non-commercial licensing

  - fixed amount plus percentage of revenue for other, more traditional licensing

The copyright owner pays the costs of enforcing copyright already...

Everybody obviously pays for copyright enforcement already through general taxation. Look at orphan works for a prime example of how this is less than ideal.

But that doesn't allow someone to violate the copyright, due to the potential risk, like a troll jumping out from below a bridge. It'd be better if there was a way to easily check if a copyright was being actively paid and maintained.

A simple approach is to apply the "intellectual property" analogy consistently - and that means taxing it like we tax real estate.

You could have a short grace period - say, a couple of years - with no tax at all, to accommodate individuals and startups exploring a market etc. After that require explicit registration for continued protection, or else the work automatically falls into public domain. And anything on the registry is taxed.

Furthermore, said tax could be made progressive, to discourage copyright hoarding, and impose a natural term limit. More valuable works would have longer-lasting copyrights with such an arrangement, but there'd always be some point past which it's simply no longer profitable. No abandonware, either - if the tax isn't paid, it becomes PD.


> I'm better off, and you're no worse off. In an "ideal" society, the free sharing of knowledge would be not just allowed, but encouraged.

I agree that theft of digital goods is not equivalent to physical goods but abolition of copyright does not follow from that fact nor does it follow that theft of intellectual property is not possible.

I also agree this is an important conversation to have. The whole idea around copyright is to encourage the creation of intellectual property. If there is a fundamentally better way to do it that idea should flourish but I have yet to hear a realistic alternative.

> I imagine there's been measurable harm to our society's cultural and scientific advancement because copyright forces us to recreate others' work instead of building off of it.

I would argue that the damage from having no copyright protections would be unquestionably worse than the trade offs they bring. People would of course still create, but so many works would simply not exist if there was no way to protect intellectual property.

Certainly there are minutiae of copyright that have gone too far in protections but that doesn’t mean the system itself should be done away with. The modern world created this system knowing full well there were trade offs.


I think if you talked to most authors they would have strong feelings that there need to be some legal means to ensure they are compensated for their work, and that someone else doesn't straight-up copy their novel, and then publish it and make a bundle.

I do totally agree that copyright is messed up, big-time.

To be honest I'm not sure that "free" sharing of knowledge really exists. Even in scientific communities I imagine certain knowledge is held back until, say, it's ready to be published so the scientists can get first credit. And so on.


Isn't that only getting halfway there? No one could "make a bundle" from copying my work if everything could be copied freely (including me, without some other way to get paid). I agree that authors (and musicians, and artists, etc.) would like to be paid for their work, though currently it seems like publishing companies manage to channel most of that money into their own pockets instead (and the costs of 'publishing' and 'distributing' a digital work are certainly a lot lower than a physical copy, yet somehow their prices are often the same).

Not quite sure what you mean, but imho the key statement in what you said is this:

> I agree that authors (and musicians, and artists, etc.) would like to be paid for their work

: )


"The whole idea around copyright is to encourage the creation of intellectual property. If there is a fundamentally better way to do it that idea should flourish but I have yet to hear a realistic alternative."

How about a basic income so the artists stop starving?


I am made worse off if you steal a copy of my book though. Suppose I sell the book for X dollars and the probability that any person without my book will buy it is Y. People who don't have my book have a value to me, specifically, YX dollars.

When you steal my book, you directly cost me YX dollars, which is probably an infinitesimal amount, but if everyone was allowed to freely copy the book, then it would be approximately 100% of the money to be made by writing a book.

Of course there are complications, like, you might buy it after pirating it, or, you weren't going to buy it anyway, or maybe you'll recommend it to a friend, but I think those considerations should be evaluated by the people with skin in the game - i.e the people who will make or lose money if they get it wrong.


You're assuming that Y is evenly distributed amongst all people, which is absolutely not the case. For example, I did most of my game pirating back in high school, when I didn't have a job (nor a car to get to a job and I lived out in the sticks) and had nothing but an allowance from my parents of ~$20 every month.

So the maximum amount I could theoretically spend on games per year? $120. The retail value of all of the different games I pirated annually? Well over $1,000, probably several thousand. So the probability of me paying for any significant portion of the games I pirated was effectively 0


I'm not assuming that at all. My model is extremely simplified so it would fit into a comment, but it doesn't need to be that simple for the general idea to hold.

Suppose you pirated a thousand games and would've legitimately purchased one. Your piracy then represents a theft of one game. Since there's no way to tell which one game you would've bought, we could simplify it to say that stole one one thousandth of a game from each publisher (assuming they were all unique publishers).

In reality, I think it's really hard to know what you would've done without access to piracy. It's almost certainly not "buy all the games" but it's also probably not "buy zero games".

I also pirated a lot of things when I was in college - partly because it was cheaper, and I was very cheap, and partly because it was easier than actually getting some things. One thing I try to do is separate my own personal bias (it can't be bad because I did it) from what seems like the clear harm and moral reasoning I laid out above. You're taking from the publishers, even if only small values, and if everyone did what you did, publishing couldn't exist as a business.

I think it makes sense that poor people would steal more frequently. They need to. It also makes sense that younger people would steal more frequently - they are less mature, think less about others, and less about the consequences. Given that, it doesn't surprise me that you and I both pirated more while younger. That said, even though it makes sense, that doesn't mean it's right.


That's a lot of supposing.

Suppose instead if piracy wasn't an option the poster just played free games instead, or did something else with their time.

> but it's also probably not "buy zero games".

In this scenario, the poster may very well not have a credit card (because what's the point if you have no income, also a minor), so it might very we be the case he was physically unable to purchase these games online, especially in the era before online "gift cards" were a thing.


"the maximum amount I could theoretically spend on games per year? $120"

For someone who complains about the quantity of my supposing, it's strange that you are supposing counterfactuals explicitly rejected by the OP.


Max theoretically i can spend (sum of all my income after basic needs met) != max i will spend on video games. In fact, it would be insane to assume that i would spend 100% of my disposible income on one thing.

> So the probability of me paying for any significant portion of the games I pirated was effectively 0

It was literally 1 in 10.

Which is a very long way from 0%.


Poster said in theory if he spent all his money he could pay for 10% of the games he pirated. It does not follow that he neccesarily would if piracy was not an option.

If i buy something for $0, and then later the cost goes up,it doesn't follow i would automatically buy it at an increased cost even if i can afford it.


I had other things to spend money on besides video games

This assumes that ideas can actually be stolen. If you release a creative work into the wild (i.e. publish it), then you have taken the risk that others will photocopy it, write it down word for word on a piece of paper, memorise it, be inspired by it and have a better more profitable idea, etc. Nobody can compel you to release work you've created, but once you release it then you've let it go.

Now, our society has decided that in order to give an incentive for people to buy books, we will make it illegal to copy books. That is arbitrary, and purely an economic decision.

If I go to a library that holds your book and memorise it, have I stolen it? What if everybody who ever wanted to buy your work decided they'd rather just read it once at a library? Is it stolen? Of course not.

When you purchase a book, you are rewarding the publisher for their time and materials in physically producing the book. The author already made their profit when the publisher bought the rights off them. If a publisher wishes to enter into a royalties agreement instead, they do so at their own risk. Society should not protect the royalty system, which I believe is unfair compared to the flat-rate payment anyway. For smaller authors, a publisher will usually work out how many copies they think they can sell, and give the author an amount proportional to that. They then bare the risk of selling less, and are exposed to the opportunity of selling more. The author has received their reward, and the publisher must do their best to sell them.


No, because potential sales are not sales. You never had the XY dollars to begin with.

This is what separates IP theft from physical property theft.


I never said they were sales. I explicitly differentiated them from sales. They are potential sales, valued at YX and potential sales are what you lose. A sale has a value of X dollars.

That's what makes it not theft. Theft deprives the person of the original. If I have two books and you take one I have one book. If you buy one of my books and give it out, I did not have any of the books I had stolen from me.

Theft does deprive the victim of something. As I've written above, piracy is theft as it deprives the victim of potential sales.

You can't deprive someone of something they may or may not have had. Copyright infringement is legally not defined as theft for this reason.

Where it gets really muddy is whether copyright infringement causes any harm at all. We've had interest groups claiming millions of dollars worth of potential sales lost and we've had studies showing that actually piracy may be a net benefit to creators due to increased market exposure.

All of this pontification can be put aside though. China does not enforce copyright or most other IP laws, and yet has a thriving entertainment, engineering, literary, etc. industry. So clearly IP protection is not critical for innovation or a healthy industry, as interest groups here would have us believe.


No it doesn't. You can't steal something that hasn't happened yet.

E wry game I've bootleggedI've eventually gone and bought When I had the dosh and the terms were right. You can't claim you "lost me as a potential sale." Otherwise, you'd have grounds for counting everyone who didn't buy your game or whatever IP as a loss.

Until it materializes, it isn't yours to account for. Just as I can't sue a chicken for the egg inlaid, it makes no sense to allow for the legal recognition of "potential sales lost".

Especially nowadays more than ever, where one isn't even largely acquiring the thing anymore, but signing a contract to host an entertainment experience on hardware they supposedly own,but which has been in reality co-opted at the manufacturing and design level by rights holders to put in place the means of extortion from society their perceived pound of flesh with no recourse.

In fact, I'd say if it's fine for you to keep track of and argue the harm of lost potential sales, I should have a matching valid claim in potential buys I was never able to make because industry colluded to ensure that proprietary anti-features in the form of DRM were included in all the hardware I haven't subsequently purchased.

Fair's only fair after all.

I don't know about you, but I'd prefer the law stick to matters of the actual rather than hypothetical.

And before you argue there is a difference between not making something for purchase (hardware platforms sans DRM mechanisms) and not realizing a sale because of privacy, I would advise you to consider the dual nature of transactions. Value is not created, merely exchanged via fungible means. Just as I'm cheated out of DRM free hardware by collisions with industry by rights holders, so too are rights holders plagued by those who find ways around things.

I'd rather live in a world where useful information could flow freely. I'm still willing to compensate for something that genuinely entertains, enlightens, or helps me. That magnanimity goes down the hole once it turns into extortion.

And make no mistake, it always does. I've yet to see a significantly cheaper ebook than a paperback. Instead, I see them treated as roughly equivalent despite the sharp loss of utility of a DRM'd artifact.

Until that madness resolves, and I stop running into people who feel entitled to hypothetical sales, I see no reason to take rightholders as arguing at all in good faith.


I regret joining this topic because I think it invites arguments that are only philosophical and people are generally unlikely to change their minds from what they already believe. For example, when I read your comment I already know I disagree with you, and have but to set my fingertips to the keyboard to let the disagreement flow. In the same way, I know you'll disagree with me, and it's hard for me to see how there is anything productive here.

Violating copyright takes potential sales. Those have value. For example, if you had a product worth X dollars, and people had a Y chance of buying it, you could sell the rights to your product based on that value.

Our society respects the concept of potential sales or potential value in many ways. If I lie and say that your restaurant is filled with rats, what am I costing you, if not potential sales? I could sell options contracts that have potential value. If I break the fingers of a master pianist or a surgeon I may be sued for a greater amount of damages than if I broke the fingers of any professional who doesn't need manual dexterity.

Potential value is the basis for lots of business and productive endeavors. It's why society respects intellectual property rights, to give creators a chance to earn something from their work, which, without the supporting legal framework, would be hard to monetize.

I went to Amazon and looked at a top 10 list. The first five books available in paperback and Kindle format are:

https://www.amazon.com/Best-Sellers-Books-Literature-Fiction...

https://www.amazon.com/Opium-Absinthe-Novel-Lydia-Kang-ebook..., 4.99, 10.99 https://www.amazon.com/Bone-Jar-Detective-Kirby-Book-ebook/d... https://www.amazon.com/Book-Woman-Troublesome-Creek-Novel-eb... https://www.amazon.com/Someone-Elses-Secret-Julia-Spiro-eboo... https://www.amazon.com/Where-Crawdads-Sing-Delia-Owens/dp/07...

Average Kindle price: 7.51

Average paperback price: 11.7

Kindle is, on average, 64% the cost of a paperback. Combine that with greater functionality and ease of use, and I think the Kindle format is a winner.


What everyone is saying is exactly the opposite of philosophical. This is an argument of semantics.

The existing supreme court rulings are crystal clear that they treat infringement as a different type of crime than theft, as they have different properties. No one is arguing with you about IF loss of sales can occur. They are telling you the legal definition of theft does not cover loss of potential. Hence the use of the word infringement. You are trying to redefine the word theft from its existing legal usage. Use a different word than theft.

Dowling v. United States (1985)

>interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

https://en.wikipedia.org/wiki/Dowling_v._United_States_(1985...

This isnt about what we believe. It's what the law says and how the courts have told us they choose to interpret it. It's (interpreting their interpretation) is not really a debate or an argument open to interpretation, as they were so clear there really arent multiple ways to read it. This isnt about any of us changing our minds with regard to what theft means, as its not an opinion.


Do you genuinely interpret what I wrote as a claim that internet piracy met the legal definition of theft?

I am telling you, that everyone else arguing against you is having an argument of semantics, that you are using the wrong words to make your point.

Steal and theft are the wrong words to describe a loss of potential sale.


Depriving someone of a potential sale is a weird definition of theft. Generalizing it seems like it would lead to problematic outcomes.

If a critic writes a negative book review, and people do not buy the book as a result, did the reviewer "steal" from the author?


If you own a taco stand and I open a pizza place next to you, I will deprive you of some potential sales. Clearly, that condition isn't sufficient to indicate theft.

Then you writing the book in the first place is theft as it deprives other authors of potential sales.

The only relevant question here is, "which benefits society more?"

The ip serves the author by paying his rent

The ip serves society by informing and empowering its members.


Did You Say “Intellectual Property”? It's a Seductive Mirage

https://www.gnu.org/philosophy/not-ipr.html


I'm aware of that article. My comment doesn't really pertain to trademarks, but I think my comment pertains equally well to copyright and patent laws. While it may be true that US law treats them differently, they are fundamentally the same thing—a mechanism to reward work that results in ideas, not tangible objects—and it often makes sense to discuss them at the same time, especially when we're broadly discussing how they should be handled as opposed to to the specifics of how US law handles them now.

> If I steal your car, I have a car and you don't have a car. If I "steal" your book, we both have the book. I'm better off, and you're no worse off. In an "ideal" society, the free sharing of knowledge would be not just allowed, but encouraged.

Up until now, the value of a book has been set by the author, and reinforced by scarcity. Entire large economic models and systems have been built by tying the two together. What is supply and demand, when supply is infinite?

Basically, the author puts in some amount of thought and labor writing a book, and they get rewarded by a purchase. Capitalism is heavily based on this: "Labor results in production, production is rewarded by consumers, because they need to part with some money to benefit for the end result". The last item is no longer true, which has ripple effects all the way up the chain.

No wonder people want to bring back the economic models and systems of capitalism they're familiar with, by enforcing scarcity -- thousands of years of societal and economic development might be upended by new technology.

Libraries have always been a thorn in the side of capitalism, but they've usually been constrained and limited enough that they aren't a real threat. With the ease of digital copying, the seams are starting to tear much faster now.

Some want to dismantle copyright but keep the rest of the capitalist system in place, untouched, which I don't really see as realistic. I think the two are much more closely linked than you might imagine. If we're going to be overhauling the whole thing, we need to have systems in place for the huge societal impact it will have.

You fill in the rest of the dots for what new systems one might prefer over capitalism, and charting the course for what comes next, that can support people. At the very least, capitalism might just be on its way out.


While I agree in principle that intellectual property is somehow fundamentally different from physical property, in the case of the "stolen" book, the creator is not worse off only if the "thief" wouldn't have purchased the book otherwise.

It's certainly true that the creator isn't out of pocket per person who reads the book, but that's not necessarily the same as "no worse off."


I think another analogy can be better.

Imagine I want to fly somewhere, plane is half empty, I am going there and sitting. Don’t have ticket. (Imagining no enforcement)

Should I? Eventually this plane will fly there, my effect on cost is ignorable, I will be better, airline will not be worse.


I think this is an interesting analogy (maybe even better would be bus fare for a city bus).

However marginal cost is not zero for the airline. Fuel costs money. There are limited seats on the plane. The marginal cost of copying a digital book is actually zero.

However, even if marginal cost was 0 (lets say a movie theatre that is empty), it does somehow still seem wrong if its physical in a way i can't easily distinguish from the digital case.

I suppose maybe the difference is, that if i own a piece of land, i should have the right to prevent trespassing so i can enjoy the land without being harrased. Being able to charge admission is an extension of that. But the intellectual case, someone reading my book doesnt prevent me from enjoying reading my book myself.


Problem is audience, if we had unlimited number audience, maybe marginal cost would be zero.

In current situation, cost of production (including labor), is shared with intended audience.

Imagine a edge case, I am writing a book to a very specific audience, lets say only 100 people would be interested.

I spent lets say 100 usd. So basically cost for each reader will be 1 usd.

Or maybe you developing a SaaS app, would you be ok if I pay only my marginal cost?

Even the marginal cost of production/copying is zero, actual cost is not. (edit: removed second marginal)


> Even the marginal cost of production/copying is zero, actual marginal cost is not.

??? I'm confused. You seem to be redefining the term marginal cost to mean the opposite of what its normal definition is.


Sorry for confusion, second marginal was mistake, I meant even marginal cost is zero, actual cost is not.

My main point is even marginal cost is zero, there is another cost ignored (saas service example)

If you are ok with to pay 0 when marginal cost is 0, you should be ok to pay X when marginal cost is X. Then this justifies for you to pay marginal cost only.

So if we move to physical world, I can say I paid for one iPhone, but if marginal cost of iPhone is half price, so If I bought one, I can steal one.


weren’t there unintended consequences in the pharmaceutical industry for shorter patent windows? they would modify a drug ever so slightly, but enough to patent it again. I could imagine a similar consequence for shorter copyright windows.

If you steal my book, I don't get paid as much for the work I put into the book. So I am very clearly and obviously worse off.

I find it really, really strange that some people find this hard to understand.

And your "crowdfunded patronage" model is still copyright, it's just copyright with a different revenue model.


> And your "crowdfunded patronage" model is still copyright, it's just copyright with a different revenue model.

I was thinking it would go something like this:

I write a book. I decide that I want to make $100,000 from the book, so I put up a Kickstarter for that much. Once it hits the goal, I release the book into the public domain. Before then, I don't publish the book at all.

Unless your definition of "copyright" is much broader than mine, I don't think it's involved in that process.


Why am I willing to offer you money for a promise you wrote or will write a book? And why wouldn’t I just wait for others to pay for it?

It’s not comparable to physical items. For those, even if the promises aren’t kept, what is promised is generally clear. Usually the Kickstarter is just to bootstrap the production with the intention of future sales so there are incentives in place to make a quality product. And if I want the product I can either donate to the Kickstarter or pay for the product afterwards. In no case can I just get a free one.


> Why am I willing to offer you money for a promise you wrote or will write a book?

Generally, reputation is sufficient check to fraud in situations like this.

In a simple setup, you may trust the author because they've written many books in the past, and fraud is punishable by law. If the author is new or wants to provide extra assurances, they could release the first few chapters of the book, or in special cases have separate goals for each chapter. In an imaginable more commercialized system, a publishing company might pay the author and advance to write the book, and the handle ransoming the book.

As far as the free-rider problem goes, there is probably some issue with that in our current society, but voluntary financing of creative works could still be more economically efficient that the existing copyright regime.


I think it is incorrect to assume every free download would otherwise be converted to a sale.

I'd guess it's probably closer to every 100 free downloads, 1 sale is lost.


>If I "steal" your book, we both have the book. I'm better off, and you're no worse off.

That's only true if 0% of copyright infringers would've paid for the book (either directly or via checking it out from a library that pays publishers per-borrow). That may be true for some individuals, but there's no way that it's true in the aggregate. There are some cases where copyright infringement might help with the bottom line (like if someone torrents a band's CD which inspires them to attend expensive concerts), but I for books I think that effect is drastically overpowered by the # of people that just don't want to pay.


"If I steal your car, I have a car and you don't have a car. If I "steal" your book, we both have the book. I'm better off, and you're no worse off. In an "ideal" society, the free sharing of knowledge would be not just allowed, but encouraged."

you are so wrong in this mentality. the bottom line is, that someone took the time and energy to write and publish that book to make money, so that person should be paid. with your mentality, it can be argued the same as downloading a movie or a song or an application. now... aren't all those things illegal and a form of stealing??? so why is downloading a book any different?

i really think that alot of people just don't think things though before they open their mouth and this is one time where you should have thought through your answer instead of jumping on the "knowledge should be free" bandwagon.


> i really think that alot of people just don't think things though before they open their mouth and this is one time where you should have thought through your answer instead of jumping on the "knowledge should be free" bandwagon.

Respectfully, if the original poster didn't think things through, you should be able to come up with a counter argument that goes beyond just asserting s/he is wrong. Something that appeals to some sort of underlying principle.

For non-intellectual property most justifications rest on, there is only 1 car, we can't both have it. Seems like it is most fair it belongs to the entity who made it (or for things in nature first to find), who can then trade it to other people. This argument rests on the notion "we can't both exclusively use something" which doesn't apply to ideas. The foundation for why intellectual property makes sense (in a philosophical sense) is much less clear, is a much more modern invention, and most of the time seems much more akin to the gov giving a tax benefit than to a natural right.

>"it can be argued the same as downloading a movie or a song or an application."

I don't think anyone is disputing this. I certainly think movies, songs and programs should be treated the same as books.


> the bottom line is, that someone took the time and energy to write and publish that book to make money, so that person should be paid

I agree with you! As I said lower down in my comment:

> Of course, we can't just abolish copyright with no replacement; it's certainly necessary to reward the creation of this work somehow.

I absolutely believe that we need to pay the creators of [what we would currently call] copyrighted works somehow. I'm just not convinced that the best way to do that is with a "per-consumer" cost. I go on to discuss some alternatives that still reward creators, but reduce some of the harmful impacts of copyright. I'll readily admit that I haven't thought those ideas through that much, but that's a far cry from completely failing to consider that creators need to be paid, as you seem to be implying I did.


> someone took the time and energy to write and publish that book to make money, so that person should be paid

How much of what you pay for a book actually goes to the person who wrote it? How much of what you pay for music goes to the person who wrote it? How much of what you pay for a movie goes to the people who actually made the movie?

The answer in all of those cases is "not very much". And the reason that's the answer has nothing at all to do with people's unwillingness to pay creators for creating, and everything to do with a huge amount of money being skimmed off the top by companies who do not want to update their business models to the 21st century, and who are using copyright and patent law as an excuse to protect their outdated business structures.


>you are so wrong in this mentality. the bottom line is, that someone took the time and energy to write and publish that book to make money, so that person should be paid.

I took time and energy to write and "publish" this HN comment, and possibly provided utility for someone reading it. Where's my money?


> so that person should be paid

Almost all people agree that creators and publishers should be paid, though perhaps in different amounts than they are now. However, some people think that criminalizing sharing is not necessarily the best way for society to accomplish this.


Illegal does not equal immoral; copying does not equal stealing.

Piracy of songs, movies, and applications actually improves sales, according to a study that the European Union funded and then tried to keep from getting published:

https://gizmodo.com/the-eu-suppressed-a-300-page-study-that-...

The law shouldn't guarantee you a successful business model. If you believe in capitalism, this should be self-evident. If you believe in socialism, this should also be self-evident. "We're going to enforce with a military your right to a successful business model" is absolutely silly and bizarrely harmful.


> Piracy of songs, movies, and applications actually improves sales, according to a study that the European Union funded and then tried to keep from getting published:

I never understand this argument at all.

Piracy of X improves sales of X is only relevant if you're keeping the business model of selling X.

It's an argument for small amounts of piracy not substituting for market demand in a meaningful amount, and possibly spurring increased market demand.

It's not an argument for it not being stealing, or against having an IP legal framework at all. If you remove the ability to sell things, there will be no sales for it to spur.

Also, only the most extreme liberterian capitalists believe in capitalism without any commercial regulations whatsoever. Literally the bare minimum is property rights.


If you remove the ability to sell things, there will be no sales for it to spur.

Books were sold long before intellectual property laws existed. Your argument is fallacious.


"Piracy of songs, movies, and applications actually improves sales, according to a study that the European Union funded and then tried to keep from getting published"

doesn't mean anything. it's still illegal.


People are arguing for what should be, not what is. In that context it doesn't matter what happens to be illegal right now. Laws do change over time - and intellectual property is a relatively recent invention compared to normal property.

If something is beneficial for everyone involved, why should it be illegal?

[flagged]


Personal attacks are not allowed here. If you'd please review https://news.ycombinator.com/newsguidelines.html and stick to the rules, we'd appreciate it.

Everybody thinks like that. Illegal acts should cause harm, not benefit everyone.

What if I just borrow your car when you're sleeping? You lose nothing.

What if I break into your house and use your TV while you're at work? You lose nothing.

What if I set up a tent on your lawn and take it down whenever you want to play frisbee? You lose nothing.

What if I grab some girl's butt at a dance club? She loses nothing.

As you can see, requiring an act to explicitly deprive someone of property is a slippery slope. There are dozens of examples of "borrowing" that just aren't done in polite society because the owner doesn't want them to be done.

The same is even more true here. Piracy hurts the author's ability to sell books. Free copies just have that effect. Every normal human understands it. Only a few computer people like to pretend that their "borrowing" is somehow magic.

Piracy destroys artists.


> What if I set up a tent on your lawn and take it down whenever you want to play frisbee? You lose nothing.

Much of northern europe has a "freedom to roam" making this explicitly legal and acceptable (within certain limits).

Nobody is saying that all law should be based in property. There are plenty of laws that aren't based in property and that is ok. E.g., we don't say murder is wrong because it deprives someone of property.

> There are dozens of examples of "borrowing" that just aren't done in polite society because the owner doesn't want them to be done.

And there are many examples of "borrowing" that are considered acceptable in polite society regardless of the "owner's" opinion. There are more factors in play then what the originator of the idea thinks of the matter.

> Piracy hurts the author's ability to sell books. Free copies just have that effect. Every normal human understands it

So? Society is not under a general responsibility to make people money. You can say the same thing about many acceptable activities: Negative critical reviews hurt the author's ability to sell books. Negative reviews just have that effect. Every normal human understands it.


> Much of northern Europe has a "freedom to roam"

I think this usually applies to large parks, forests and beaches etc; not residential lawns

> there are many examples of "borrowing" that are considered acceptable

can you give examples? of acceptable borrowing without consent, or in direct opposition to consent.

> Society is not under a general responsibility to make people money

What are the general responsibilities of society?


> can you give examples? of acceptable borrowing without consent, or in direct opposition to consent.

Well since we're talking about intellectual property, quoting is an obvious example. Often in debates (esp. Political) people will "borrow" their opposition's words against their will with the intention of making them look stupid.

Most science involves working off other's ideas, without the ideas originator's consent (but attribution is required).

> What are the general responsibilities of society?

That's a heavy philosophical question, and answers will vary. Usually involves ensuring the administration of justice and having a monoply on violence. Sometimes providing basic neccesesities is included. People often do include enforcing physical property rights here (i have never heard of people including intellectual prop rights, although there probably are people who feel that way). In some communist states, the right for every person to have a job is assumed, which i suppose could be taken to mean a responsibility to make people money. In capitalistic socities there is no garuntee of business success; the fundamental principle being either you should make money on your own merit or go out of business. At most there is a responsibility to create a fair marketplace, but what that means varries a lot.


Hmm, but I'm only taking about specifically copyrighted work, or works where the author has explicitly expressed that the work is not publicly available.

Most debates I see, the comments raise are wrt public comments, but otherwise I'd assume participants in a debate implicitly assume fair-use on relevant publications they have released.

I believe science works the same, the derived work isn't without consent, because the consent is implicit. So far as discoveries are copyrightable, they do require consent, and if they aren't they are usually kept secret, as trade secrets.

In the case of IP - it's pretty explicit (from the author) that consent is not granted without compensation.


How do we back up the Internet Archive? If they lose this case then it will be like losing The Great Library of Alexandria.

This is our culture. This is our heritage!

Edited to add: when I say “back up”, I mean preserve the data and the archival mission (minus the legal quagmires).

The technical challenges can be solved, and we should do this before it’s too late. It seems there was a previous effort, but it has lost momentum: https://www.archiveteam.org/index.php?title=INTERNETARCHIVE....


This is how you backup the Internet Archive: https://www.archiveteam.org/index.php?title=INTERNETARCHIVE....

“IA.BAK has been broken and unmaintained since about December 2016. The above status page is not accurate as of December 2019.”


A conversation about this is the stickied thread, in fact.

There are many other digital archives, and that is how the "single point of failure" problem you envisage is solved.

The Internet Archive is AFAIK the biggest, and the first - the important thing is for others to continue its good work (many have done this for years) - and not for us to rely too much on it or any other single archiving initiative.


It's possible that over the long term it could be backed up via torrents. However, in the short term the only way to save the archive is for IA to sell it. I hope they swallow their pride and do so.

Torrents are a distribution mechanism, not storage. Many IA items already have torrent links available (with a fallback to a "web seed" since they are mostly not seeded).

Roughly 44 million items are available via torrent (I maintain a catalog of IA items independent of IA, with each item's torrent file). Wayback data is not (to my knowledge). This is important, as IA then can act as a global metadata catalog for the items, with the underlying content being served up through an uncoordinated fleet of seeders. I think many might agree that the time has arrived for this data to live on globally distributed storage nodes.

It would be helpful if IA published Wayback data files over torrents, alongside cryptographic signatures of the files (for attestation and provenance purposes, as Wayback data has been used in legal proceedings and you would want that trust in the data maintained regardless of where the bits were retrieved from for hydrating the WARC client side).


I kind of hate to think that someone would want to buy it and attempt to turn a profit.

This is abuse of copyright.

IA did bad, and should not be rewarded for this behavior.


And (modern) copyright is abuse of a legal system.

I don't like copyright either; I think that it is bad and it (and patents, too) should be abolished. However, there are some other opinions (for example, I have seen the suggestion that you have copyright limited to only a few years, that after the first year you have to pay a fee, and other changes to improve it), but I would be OK to just abolish copyright entirely. I don't want to copyright my own writings either, and would rather be public domain, so that is what I do.

For anybody interested in the IA's claimed ethical and legal justifications, they summarise and link to them at the following page:

http://blog.archive.org/2020/03/30/internet-archive-responds...


Wow, that still seems rather weak and reckless.

First they describe what Controlled Digital Lending is - one physical copy == one lend. They cite legal experts that agree. That's fine, no one's disagreeing there.

Then they go on with this:

"Additionally, fair use ultimately asks, 'whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.' In this case we believe it would be. Controlled digital lending as we conceive it is..."

So basically they went off and created the National Emergency Library based on their own interpretation of Fair Use. You better be ready for a huge fight if you're going to that. I don't know how they couldn't have expected this.


> Yes, we’ve had authors opt out. We anticipated that would happen as well; in fact, we launched with clear instructions on how to opt out because we understand that authors and creators have been impacted by the same global pandemic that has shuttered libraries and left students without access to print books. Our takedowns are completed quickly and the submitter is notified via email.

It's nice that they have an easy opt-out system. But this is kind of like spammers who have easy opt-out... better than nothing, but I shouldn't be getting spammed in the first place.

It's worse than that. They're violating copyrights, i.e., stealing, and then saying "if you don't want us to steal from you, we have an opt out form you can fill out."

EDIT: People are downvoting this because I equated violating copyrights to stealing, which is odd because US law explicitly defines copyright infringement as stealing property. That's not debatable; it's a simple fact. (A fact that apparently bothers some people, but being bothered by reality is not a basis for disagreement.)


Violating copyright and stealing are fundamentally different things. If I steal your tv, you no longer have a TV. If I pirate a book, all existing copies of the book still exist.

If you price a book above what I'm willing to pay for it, I'm never going to buy it. Ever. If my willingness to pay is "$0", then you can't even argue that the creator has lost revenue if I pirate it. I was never going to buy it - it's too expensive at any price.

You can make the argument that capitalism should exclude me from ever being allowed to read it, because my willingness to pay is below the seller's willingness to sell. Fair enough.

However, it's pretty tough to calculate actual economic damages here - I was never going to buy the book, at any price. And I haven't deprived anyone else of the ability to buy the book. You might say to me: "But you are clearly in the target market - you wanted the book enough to pirate and read it." I disagree - by definition, the target market must consist of people who want the product enough to pay for it.


Your philosophical musings are not uninteresting, but they are irrelevant to the fact that violating copyright is defined as stealing property under US law.

https://www.law.cornell.edu/uscode/text/18/part-I/chapter-11...


My understanding is that in Dowling v. United States, the Supreme Court specifically ruled that the very section of US code to which you link does not mean that copyright infringement is theft:

> Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

https://en.m.wikipedia.org/wiki/Dowling_v._United_States_(19...


Wow, I mean, what a counterintuitive coincidence.

Trafficking in copyrighted works constitutes theft, but a private equity firm buying a company with debt, transferring the debt onto the company's balance sheet, allowing it to go into bankruptcy because of enormous debt load, and paying themselves huge bonuses along the way is not theft.

If it weren't for the fact that the U.S. federal code as it exists in June of 2020 is the definitive source of ethical and moral definitions, I would think that maybe something _untoward_ might be going on.


Seems coherent to me: you are not taking ownership of something without a contractual basis. It would I think constitute 'misuse of corporate assets' though.

> Your philosophical musings are not uninteresting, but they are irrelevant to the fact that violating copyright is defined as stealing property under US law.

Your philosophical musings are not uninteresting, but they are irrelevant to the fact that freeing slaves legitimately bought is defined as stealing property under US law.


That's not cute. It's incredibly appalling to compare the institution of slavery to people who pirate books simply because they want the benefits of authors' work without compensating those authors.

I'm not making that comparison. I'm not even saying that I disagree with your view on copyright. I'm just setting up this correspondence to show that the argumentation that you use is not valid.

Fine, but there is nothing at all invalid about my argument, because all I argued is that infringing copyrights is defined as stealing property under US law. That's not even an argument; it's simply a statement of fact. Unless you're talking about my statement that musings about how it shouldn't be considered stealing are irrelevant to the fact that it is, which is also not an argument, just a statement of fact. (Those musings are misguided as well as irrelevant, but I didn't advance any argument about them being misguided.)

Your rhetoric tricks are a bit tiring. The question is not settled by saying that something is illegal. Of course book sharing is illegal under the current law, that's the whole point. The law in question is stupid. People who respect the concept of law and the importance of laws are outraged by this, and want to use the legal system to change this stupid law. Repeating that "book sharing is illegal" as you do leads nowhere.

> People who respect the concept of law and the importance of laws are outraged by this, and want to use the legal system to change this stupid law. Some people. Other "people who respect the concept of law and the importance of laws" are outraged by the Internet Archive's infringement of copyright for no justifiable purpose and want to use the legal system to make sure copyright laws are followed. I don't know what you mean by rhetoric tricks. I've done nothing but explain the current status of copyright law. You're the one who resorted to some trick (which I still don't understand) comparing copyright to slavery. I agree this is tiresome, though.

Why should the federal government be taken as the authority on the definition in terms in a non-legal context (most of the conversation here is about an ethical argument)?

Topic is a legal battle. I would think the onus is on people wanting to use words that have both legal and non-legal meanings in their non-legal way to specify it.

The post I responded to explicitly acknowledged it wasn't a legal argument. At least using the phrase "philosophical musings" seems that way to me.

Unless you want to make the argument that a philosophical argument and a legal argument are equivalent (which I would actually be quite interested in seeing).


I think that the argument which you present works well for personal use: the book $0 monetary value to you and you don't intend to redistribute it.

However, there are people who copy without authorization and make money from it. (For instance, Google: they collect money for YouTube Premium subscriptions, in exchange for which they let people watch all sorts of illegally reproduced material without commercial interruptions.)

Now suppose the copyright holder wants $1000 for the book. Nobody is willing to pay. You make copies available for $15. A few people are found who pay you. Are you not stealing that revenue from the copyright holder? Oh, but that copyright holder didn't want the money; or else they could have sold for $15 per copy themselves. You're just getting money that they copyright holder left on the table ...


My argument is really only about calculating economic damages from piracy, and how it is difficult without information about a pirate's willingess to pay. Even for personal use, if my willingness to pay is $50, but the price is $1000, and I pirate, that's a legitimate claim that piracy caused economic harm to the author. But, importantly, not $1000 of economic harm - just $50. I've deprived the author of the opportunity to price discriminate by putting the book on sale at some point in the future, or bulk discounting, or gathering data about the readership (to e.g. build an email list).

In the case you describe, there is a demonstrated willingness to pay $15, so you have enough information to calculate damages.


Suppose you are the copyright holder of a book, and are asking $1000. For years, there are no takers; you have no revenue. I come along and would like to read your book, but at most I'm willing to pay $10. I get a little idea: I advertise that I have this book for sale for $10 a copy, and start taking orders. I collect 99 paid orders. At that point, I have $990 of other people's money. I add $10 of my own to make $1000 and buy the book from you. Without your permission, I make 99 copies, and fill the orders.

Am I a pirate? Or a businessman who provided liquidity at a rationally determined market price, and enabled you to finally sell a copy and at least get a $1000?

Also, what amount did I demonstrate a willingness to pay? Certainly not $1000, right? It looks as if my willingness to pay was limited to the $10 of my own that I pitched in.

If I were to be sued, how should the damages be determined?

According to your "demonstrated willingness" concept for calculating damages, all 100 pirates demonstrated a willingness to pay $10, so the damages were $1000. But that's exactly what you got already. Everyone demonstrated willingness to pay $10, forked it over, and it was passed on to you.

So you see, this willingness to pay concept works very well with nonzero amounts too, in such a way that even pirates who charge money can come out smelling like roses.


The seller of the book has more money than they would have without the pirate.

You can argue about morality and the appropriateness of this behavior, and I'd probably agree with you on most points. The world you describe probably isn't the world I would prefer to live in, all things considered. But it's tricky argue that the bookseller is _economically_ worse off than they would have been without the pirate - as you just showed.


There is ain interesting flaw in: If you price a book above what I'm willing to pay for it, I'm never going to buy it.

Even if this is correct, you might have bought another book that was cheaper.

Case in point: Photoshop. It was pirated by everyone at home. But organizations could not pirate, so when they buy a photo editing package, it will be photoshop, as that what the employees know. If piracy at home was not an option, you'd see much more different photo packages at different price points in the market.


By spending the time to acquire and consume a copy of the content you have proven that your willingness to pay is above "$0".

Granted, perhaps not _much_ above 0. But still evidently above 0.

edit: Even if your "consumption" is merely acquiring and storing (or even acquiring and immediately discarding)


Sure. And the expected value of getting caught and paying fines, etc. etc. It's true, but I think the point stands.

> the target market must consist of people who want the product enough to pay for it.

That in fact doesn't work even in the case of actual stealing, otherwise we are forced to conclude that the target market for luxury cars includes teenage kids who hot-wire them and take them for joyrides.


Copyright infringement is not stealing.

That's a slogan I hear a lot. Unfortunately, the law disagrees. Copyright infringement is defined as a stolen property offense:

https://www.law.cornell.edu/uscode/text/18/part-I/chapter-11...


Well, the "law" is more than what's written in statute; you have to merge that with case law. My understanding is that in Dowling v. United States, the Supreme Court specifically ruled that copyright infringement is not theft (specifically in reference to the section of US code that you link to, no less):

> Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

https://en.m.wikipedia.org/wiki/Dowling_v._United_States_(19...


Fortunately, it is not an immutable fact.

Numerous authors have said this was not their experience.

More importantly, it is not an author's job to "opt out" of someone illegally pirating their work.


I can’t see a single legal justification put forward here or anywhere else. They talk extensively about CDL, but this lawsuit isn’t about CDL, it’s about un-CDL. Their moral justification is quite straightforward (though not without its own issues), but the legal system doesn’t exist to enforce a system of morals, it exists to enforce a system of laws.

I can’t imagine what their legal strategy could possibly be...


I recognize some of the names here. This will be a case to watch, which ever way it goes the constructions allowed here will percolate through the law for years to come. This case hinges on the exact wording of the law that authorizes the National Emergency Library. IIRC, it basically gives copyright impunity during a declared national emergency. As far as I am aware, the coronavirus declared national emergency is still in effect. IA loses by attrition, is my guess. Many rounds of "Preliminary" injunctions and orders will stop thier income streams, then they die.

What law does explicitly allow the NEL?

If I recall correctly, the Internet Archive decided unilaterally that they would do this due to many libraries being closed.

I (not in the US) do not remember any changes to the copyright act being passed to allow this.

Edit to add: They offered this globally and therefore disregarded any laws in countries which have already settled this issue. (Hint: to my knowledge not in a way that favors their interpretation)


> What law does explicitly allow the NEL?

> If I recall correctly, the Internet Archive decided unilaterally that they would do this due to many libraries being closed.

Exactly.

It's not even clear that "controlled digital lending" is in compliance with copyright law[1].

The NEL or "uncontrolled digital lending" is almost certainly not in compliance with the copyright statutes.

___

1. It's not specifically allowed, and there hasn't been any case law on it. To see arguments for controlled digital lending, go here: https://controlleddigitallending.org/whitepaper


There is no law permitting this - IA main legal argument it:

> Our principal legal argument for controlled digital lending is that fair use— an “equitable rule of reason”—permits libraries to do online what they have always done with physical collections under the first sale doctrine: lend books

http://blog.archive.org/2020/03/30/internet-archive-responds...

They are saying digital is equivalent to physical which is the same exact argument vidangel tried and lost a year or two ago


Which law specifically bans the NEL? The IA seems to be arguing copyright law doesn't because it's covered under fair use.

> This case hinges on the exact wording of the law that authorizes the National Emergency Library. IIRC, it basically gives copyright impunity during a declared national emergency.

There is no such law. What on earth are you talking about?


Isn't the income stream mostly donations, and is getting publicity from being targeted by unpopular entities a great way to get more donations?

It's well established at this point that IA took a big misstep here and is too important and singular an entity to run afoul of current laws.

To those who think IA is wrong not just tactically but morally on the basis of "violating the law", I'd like you to consider the following:

Unjust laws exist.

- Shall we be content to obey them?

- Shall we endeavor to amend them, and obey them until we have succeeded?

- Shall we transgress them at once?


You missed the step a lot of us believe this law is moral.

So this isn't about not following unmoral laws.

More so, on top of this, many people also think it's ok in some circumstance to break moral laws.

If someone steals food they need, then many people think that's ok. If someone breaks copyright when they wouldn't have normally payed for the product, then some people also think this is ok.

But I think this is none of the above.

This is a food bank openly stealing food from Walmart. Heck, if some anarchist group broke into Walmart and stole food, even that would have more support. But when they say what they are doing is ok and do it openly in front of police, that's when they lose me.


Right, but in this scenario Walmart is closed and the people want food.

Before we can answer those questions we have to decide whether copyright is unjust or not.

https://www.lesswrong.com/posts/yCWPkLi8wJvewPbEp/the-noncen...

The IP apologists have successfully lodged a massive noncentral fallacy of “unauthorized information copying = theft.” As anyone with a gram of brains can see, the force of direct arguments against piracy is much less about their consequences and instead focuses on just putting piracy in the category of theft. Categories though are but arbitrary social constructs used as a shortcut in thinking.


I'd love for the Internet Archive to prevail here, but honestly it was quite boneheaded to do this legal experiment under the same corporate umbrella as their archival work. At this point they should proceed with a damage mitigation strategy of selling off their servers and storage to a second entity at fair market value (maybe "Archive Cloud"), and renting continued access. This way even if the IA organization is bankrupted, the archive itself will still remain intact - the archived data isn't under IA copyright and thus wouldn't be part of the bankruptcy estate.

> it was quite boneheaded to do this legal experiment under the same corporate umbrella as their archival work.

I disagree. This is a wickedly good idea, and a very good hill to fight on. It is not a "legal experiment" but a major battle against evil people. Everybody loves the Internet Archive, it is our sacred castle. If a decisive battle is to be won against the publishing parasites, it may be likely this one, and we have to be all on the same side! After Aaron Swartz, the book parasites have never been so potentially hated by everybody. We must go all-in.

The error is on the side of the book parasites for having decided to fight against an institution that is so loved by mankind. They cannot but lose the battle (socially), regardless of what the short-time legal outcome is.


Dude: I'm an author. The books I write pay for the food that feeds my family. Are you saying I'm evil for asking to be paid for my work?

I can tell you that if the IA/EFF prevail, professional authors will disappear and the only people who will get to be artists will be those with trust funds and rich spouses. Is that what you want the world to become?

Do you really think artists are evil for wanting to be paid?


> Are you saying I'm evil for asking to be paid for my work?

No. I love and appreciate the work of authors, and I spend more than 1000 EUR per year in books. I systematically buy technical books that the author offers for free on their website. For the authors of the free software that I depend on, I try to donate if it is possible.

To answer your question very clearly: you are not evil by asking to be paid for your work. That is a very reasonable thing to do! Can you please point me to your books? I will likely buy them (if they are tangentially interesting to me).

All of that will not change the fact that sharing books is not stealing, and that using the verb "stealing" for the act of sharing is a callous manipulation of the language, even if it is sanctioned by law.


What is the point of putting the Archive at risk though? The same battle could have been fought by a new entity that only digitally lent books, without putting the archives at risk. You seem to be implying that putting more at risk will make them fight harder, which seems ridiculous. What I see is them needlessly choosing this as a hill to die on.

Putting the glorious Archive "at risk" is equivalent to charging the enemy all together behind our king. Sure, a risky move, but undoubtedly very encouraging. The battle is not only legal, but mostly social and PR. A new entity, independent from the Archive, would receive few popular support, and if the book parasites killed it nobody would be really bothered. Yet, if they try to kill the Archive, that's a huge mess on their part that nobody can forget nor forgive.

I recall from the comments here and in Ars Technica that there was a significant debate whether IA could do that or whether this will be considered bankruptcy fraud or whether the publishers could still claw back the servers despite the separation.

There's another last ditch option though - IIRC, IA has copies in US, Canada, Netherlands and Egypt. Let's say that some government where an IA server is hosted is convinced to nationalize the server. They have legal authority - there's much legal latitude for acting in the name of national security, and there's an obvious case to be made here: if we consider disinformation to be a security threat than a server hosting reliable and trusted internal history is an obvious asset (e.g. [0]).

Such an act would easily override any legal attempts by the publishers, and can be pushed for even after a conviction and bankruptcy and without involving the IA foundation at all.

The danger is that post-nationalization the information would not be considered reliable - this can be ameliorated if the servers are immediately rerendered to a private party, but it's enough of a downside to make this a last option to push for. That said, I suggest keeping this option in mind.

[0] https://theconversation.com/dominic-cummings-how-the-interne...


Well that's why I said "fair market value". It shouldn't be considered bankruptcy fraud if they were fairly compensated for the servers, as the monetary proceeds would still be in the estate. But perhaps that is the debate.

Nationalization seems heavyweight and unlikely, but maybe it could happen. The integrity problem could be solved with hashes, but it would take some work to define them to be useful.

BTW since they distributed copies of the Archive across jurisdictions, why the heck didn't they do the same with legal entities? Redundant copies aren't much of a protection if the organization can be coerced into modifying data, as western governments have been all too tempted to start doing.


Well, the IA servers won't be offered for sale because IA decided to buy new servers, and similarly the buyer is in all likelihood really interested in the data.

Selling the data while claiming they 'merely' sell the servers is probably not fraud, but I don't think a judge is likely to look well on it. I can see the publishers arguing the data has monetary value and demanding restitution. Another thing is that IA relies on their designation as a library to avoid copyright legal issues, and the buyer will probably need the same designation (or at least to exist outside of EU/US). Still, with good will and good lawyers all this might be doable.

Nationalization is heavyweight and unlikely. If needed, someone will have to push for this behind the scenes. This is a big mess though, we may need every option we can get.

Why didn't IA think of separate legal entities in advance? Judging by the fact they got themselves into this, I suspect the foundation is not very well run...


I still wonder what their plan was in anticipation of this confrontation.

Worst Case: Chirping (Not seeing this coming at all)

Naive Case: "Surely they will come to recognize our 'superior' 'moral' arguments and cease their evil ways"

Historically ignorant case: "The people will stand up and join us. We are invincible" (aka every rebel ever...most fail)


I don't know. There was that point right after society became aware of COVID that everyone was imagining pulling together for the common good, before the political machine grabbed the crisis and performed the all-too-American response of corporate bailouts coupled with tough luck for everyone else. I can only imagine they got caught up in that feeling, and thought everyone being stuck at home would be a good time to demonstrate the regressiveness of copyright. Unfortunately copyright infringement doesn't have equitable punishments like actual property crime but rather is playing with fire. If they had thought ahead, they could have pulled a similar stunt but with definite inventories of books sitting on the shelves of closed libraries. Alas.

Seems plausible and I can certainly see their good intentions coupled with a general dislike for monetary cultural gatekeeping

One trait of good leadership is the ability to weigh the consequences of actions of their organisation. They failed in that regard.


EFF - lawyers with good intentions, a bad legal case and bad facts.

vs.

Publishers - lawyers with good intentions, a good legal case and good facts.

IA = good. IA's library service = bad.

--

Simply put, IA will lose this case* while publicly saying they "won" the case when a settlement is reached where IA keeps the service shutdown (as it is now) and avoids paying infringement fees (publishers are not trying to shutdown the IA)

(e.g. IA arguing its service is a public good, because libraries failed to provide access during COVID, when in reality public libraries dramatically increased online access during COVID)


To anyone interested in this matter, I recommend

Do Business without Intellectual Property - Stephan Kinsella http://www.stephankinsella.com/wp-content/uploads/publicatio..., a patent attorney who fights the very idea of IP.


In addition to thinking about ways to back up IA, we can also start backing up our own content and things we visit locally, so we don't become so reliant on centralized datasets:

https://archivebox.io

https://conifer.rhizome.org/


EFF is on the wrong side of both the law and common sense here and they will lose no matter how much they pay their legal team. Internet archive didn’t just steal from ‘publishers’ they are also stealing from authors big and small. You don’t get to give out free digital copies of books to people without permission and expect to get away with it.

This exact digital/physical equivalence idea has already been through the courts (for movies/television) and it failed miserably:

https://en.m.wikipedia.org/wiki/VidAngel

> In June 2019, a jury ordered VidAngel to pay over $62 million in damages for copyright violations.


Even if you broke the law you don't just role over and give the other side whatever they want. They're inevitable going to ask for more compensation than they are entitled to (why wouldn't they), and you need to push back to make the penalty fair. That's just how our legal system is set up to work.

The EFF is on the right side of the law the same way a lawyer for a criminal is. The lawyer (eff) is fulfilling a necessary function of the judicial system even when the party they are representing is in the wrong.

The EFF has a keen interest in this case because the publishers will be doubt use this case to push for copyright maximalist interpretations of the law, and letting those interpretations become case law unchallenged is bad for society.

Edit: At a glance the vid angel lawsuit you quote is about circumventing DRM, something that is not relevant to this case since the physical books they scan have no DRM.


Please stop equating owners of IA and EFF with criminals - copyright infringmenent is nowhere near equivalent to actual crimes that cause harm. It's a disgusting rhetoric that was paid for by rent seeking publishers.

I am merely making the analogy to such lawyers, not attempting to call them criminals. Sorry if I came off as doing otherwise.

That said, while not in this case (I think), copyright infringement is in many for profit contexts criminal under the laws of the United States.


> The EFF is on the right side of the law the same way a lawyer for a criminal is.

By this definition, no lawyer can be on the wrong side - you know what is meant by the phrase ‘wrong side of the law’ stop it with the mental gymnastics.


No, the criminal in the above is absolutely on the wrong side of the law. That's the assumption after all.

Lawyers are on the wrong side of the law when they break it themselves (see, e.g., Avenatti), but not when they represent people on the wrong side of the law. The latter is necessary for the common law court system to work at all.


> "No, the criminal in the above is absolutely on the wrong side of the law. That's the assumption after all."

In America at least, the defendant is presumed innocent until proven guilty. So the assumption should be that the defendant is on the right side of the law. It's the prosecutor or complainant's job to prove the defendant is in fact on the wrong side of the law.

To call a defendant 'the criminal' (and saying the defendant is in the wrong) is putting the cart before the horse.


You're nitpicking the language in a hypothetical here. Of course the court can't assume the defendant is guilty, but the purpose of the word criminal here is to say that in the hypothetical the defendant did actually commit the crime they are accused of.

> You're nitpicking the language in a hypothetical here.

That is exactly what you are doing by picking a bone with the phrase wrong side of the law


No, it isn't. By saying the EFF is on the wrong side of the law you are implying that they are acting badly, this is simply not the case and needs correcting.

There is a reason why falsley accusing someone of a crime is libel in and of itself and is actionable under the law regardless of damages, I don't think this quite reaches that standard, but it is damn close.


EFF IS on the wrong side of the law. Yes everyone deserves a defense but you yourself admitted IA was in the wrong and EFF is choosing to go to bat for them.

No. As explained above acting as legal council for someone who has broken the law does not make you yourself be "on the wrong side of the law".

And as I said - EFF isn’t acting as blind legal council - they are tying themselves to IA even saying they are proud to stand with them and pledging financial support for them. This is totally different from a public defender being elected for a citizen. I didn’t say it was illegal for EFF to do this or that they were breaking the law, I said they were on the wrong side of the law.

I'm beginning to think you actually just don't know what "the wrong side of the law" means. Here is the definition

https://www.merriam-webster.com/dictionary/on%20the%20wrong%...

Exercising their first amendment rights to support an organization that broke the law is unequivocally legal, a healthy part of society, and not on the wrong side of the law.


Fwiw I think everything you're saying makes perfect sense. Regardless of the plaintiff and defendant's cases, the lawyers are there to ensure the judicial system is fair to the best of their ability. IA might be wrong, but EFF and their legal team are there to make sure they are fairly represented.

Nice alt

Read their argument in the context of legal proceedings after the defendant pleads guilty

The lawyer is still on the right side of the law after the plea


A defense attorney defending a guilty criminal doesn’t typically pledge financial and moral support and state publically that they are proud to stand with them (not for, with). EFF is tying themselves to IA far beyond just acting purely as a legal representative.

Taking a political stance that the existing law is bad is not only not illegal, but it is one of the few things that is very explicitly legal. Doing so does not put you on the wrong side of the law. This includes when your political actions involve making statements in support of, defending and funding the legal defense of those who have broken the law.

> In America at least, the defendant is presumed innocent until proven guilty.

Is this true for civil cases? I presume no one is being charged with a crime here...


> Is this true for civil cases? I presume no one is being charged with a crime here...

Yes. The publishers are saying 'the Internet Archive violated my rights and has caused monetary damages. They owe us for those damages.' It's up to the publishers to provide that the Internet Archive violated those rights.

Now civil trials and criminal trials have different standards for evidence and determining guilt. In criminal trials, the prosecution has to prove beyond a reasonable doubt that someone committed a criminal offense.

In civil cases, the complainant (plaintiff) just has to prove via a 'preponderance of the evidence' that their rights were violated. Meaning, it's more likely than not their rights were violated.


By that definition no lawyer operating in good faith is.

You're not arguing about whether the defendant is on the wrong side of the law.


I may be misunderstanding this case, but the impression I get is that they are not defending the unlimited lending that IA did as part of their "National Emergency Library" (NEL). They are just defending the earlier "Controlled Digital Lending" (CDL) program where the number of copies lent out at any one time was limited to the number of physical copies in the physical libraries [1].

The lawsuit is going after both NEL and CDL. The defense is trying to save CDL.

I don't think VidAngel is necessarily relevant here because VidAngel was making derivative works.

[1] If someone checked out a physical copy, did they reduce the number of digital copies that could be out until the physical copy was returned?


> I don't think VidAngel is necessarily relevant here because VidAngel was making derivative works.

And also because they were circumventing DRM, which is what the Wikipedia article would have you believe the case was about (I haven't looked closer than that).


> If someone checked out a physical copy, did they reduce the number of digital copies that could be out until the physical copy was returned?

In the case of VidAngel yes - you would buy a copy from VidAngel, stream it, then return it for the same amount sans a dollar fee. Vidangel would often run out of copies of popular shows to stream and they would alert you when that was the case and not let you stream it.


That's the way I understand it as well. It may be worthwhile defending CDL (I don't know enough to have an informed opinion), but the NEL is indefensible, and it doesn't appear the EFF intends to defend it.

Agreed. However, I would expect the EFF to (possibly) be good negotiators. They might be able to make a settlement that keeps the IA's website open while satisfying the publishers - or at least making the lawsuit complicated enough that the publishers won't keep going.

Without this representation, the publishers could almost certainly bankrupt the IA, even if they are given the minimum infringement fine of $200/ea.


It is possible that this is one outcome that the EFF is hoping for by joining this particular bit of litigation, but I just do not see it working out that well. No one, outside of a small group of techies, knows about or cares about the EFF; having the EFF formally on the IA side is not going to move the needle much in terms of PR. On the other hand, having the EFF on the opposition may galvanize the publishers to not negotiate at all and go for a big win in court just for the sake of chalking up a win against the EFF (who is often supportive of causes and groups that are opposed to the publishers.)

Make no mistake here, the IA _will_ lose this case and the publishers _will_ bankrupt the IA. There are few things that I can say are almost certainly a foregone conclusion, and the IA losing this case is one of them.


In a just world the destruction of the Wayback machine should be a much bigger crime than some copyright violation. Sadly our world is not just, content conglomerates have bought themselves the most draconian laws possible to protect their profits above all other benefits to humanity. They must be stopped!

What prevents them from selling/giving the data of the wayback machine to another curator?

The wayback machine is an asset of the IA. The courts tend to take a dim view of obvious attempts to hide assets from judgements.

In this case, I don't think the "asset" has any monetary value though.

In a just world, the management team that decided to risk the future of the Wayback machine so that they could take advantage of a global pandemic to strike a blow against copyright would go to jail. They must be stopped and prevented from doing more damage to IA!

No good deed goes unpunished.

Why is knowledge artificially limited by all these paywalls and people holding literature and books hostage to their financial interest? What is better a world where a poor kid can read any book ever published or a world where you can only read the books that you can afford. Most technical books are expensive.

When I was a kid I depended on public libraries to learn about computers. I know college students who simply can't afford textbooks, so they pirate them. But that enabled me to find a career that lifted me out of the rural community I grew up in. Now I buy every book I read, on paper, and pay for expensive software.

Digital lending and the National Emergency Library would never have appealed to me. It doesn't reduce sales of books, because those who can buy, will. I'd much rather support the author and have a physical artifact in my hands than an inconvenient digital scan. But for anyone not in that position, the NEL could be a lifesaver to ride out the pandemic.

IA made the right call morally and ethically. It's only the parasites of society who would tear them down for helping disadvantaged people out during an unprecedented planet-wide crisis, because their actions help the disadvantaged without harming the market potential of authors.


> the publishers could almost certainly bankrupt the IA

They do that and they will find themselves with a Napster/sci-hub problem.

If it weren't so destructive, the chronic inability of legacy industries to learn would be funny.


To note, bankrupting IA doesn't make digital copies of these books go away. It'll just accelerate Library Genesis [1] while burning down a cultural archive.

The Internet Archive needs to be reasonable, as they operate within US jurisdiction. Other projects need not (LibGen, SciHub, etc). If operating outside of the US (and other countries that are a party to the Berne Convention) is required due to publishers continuing to embrace overly restrictive copyright law, that is what will be done by those interested in this sort of work.

[1] https://en.wikipedia.org/wiki/Library_Genesis ("As of 28 July 2019, Library Genesis claims to have more than 2.4 million non-fiction books, 80 million science magazine articles, 2 million comics files, 2.2 million fiction books, and 0.4 million magazine issues.")

contrast with IA's OpenLibrary corpus (with Controlled Lending):

https://en.wikipedia.org/wiki/Open_Library ("In total, the Open Library offers over 1.4 million books for digital lending.")


If the books were not being sold as digital copies, maybe they could invoke fair use due to the pandemic making other ways to access the books impossible.

That said, the best avenue would seem to be a PR campaign with a call for a boycott and public shaming of the publishers (Hachette, Penguin Random House, John Wiley & Sons, and HarperCollins) that are putting their profit ahead of public access to the books.

In fact, it seems pretty surprising that the publishers would risk such an hit to their reputation given that the Internet Archive probably doesn't have much money to give them as compensation anyway.


Publishers (for books, movies, and music) do not really have much shame when it comes to copyright enforcement. For one, they're natural monopolies, where a given content is solely owned by them, and you can't get it through any of their competitors. And especially in the case of books, very few people think about a book in terms of the publisher who published it, and very few people buy their books based on which publisher has the rights to it. So the value of public reputation for a book publisher is very low.

They do not care about the compensation. They are aware that they will probably see effectively no dollar bills here. However, the publishers are interested in shutting down a distribution method they see as unlawful/theft, and most importantly, they want to publicly destroy any company who engages in it to deter future offenders.


I agree completely on most items, except that copyright is not a natural monopoly. There isn't a high barrier of entry to printing a different book, nor is there a very limited supply of printing presses. Copyright is entirely a government-granted monopoly, intended to serve the public good by promoting good writing. In cases where it doesn't serve the public good, it is reasonable to reduce the strength of copyright.

That's fair. It'd be more correct to call it a government-granted monopoly, indeed. My point was mostly that for any given book, the publisher has no competition, so the reputation of the publisher doesn't matter too much to someone who needs to buy that book.

Exactly. Anti-copyright people love to claim the book author has a "monopoly." But it's only on their own book. Nothing stops someone else from writing a competing book. It's kind of like saying a car owner buys a "monopoly" by purchasing a car. Yeah, only the owner can drive a particular car, but that's not what the word means. Yet people persist with this phony gambit.

tilts head You start off by saying "exactly", but then go assuming that I said the opposite of what I said. To state it clearly, copyright is a monopoly. Patents are a monopoly. That these are government-granted monopolies enforced by law, rather than a natural monopoly caused by scarce resources, does not make them any less of a monopoly.

The car analogy does not apply, primarily because cars are fungible. Books are not fungible, unless they are printings of the same book. Cultural ideas are not fungible.


That seems quite a risky strategy as well, because it could backfire: if the court declares even just that controlled digital lending is legal, more companies and bigger companies may start offering it (e.g. Google that already has the scanned books), making things worse for the publishers.

I don't think Google is actually warehousing the physical books. They worked with a lot of libraries to scan their collections, but arguably couldn't legally offer CDL.

I think they have the capital to buy enough copies of all books in existence to allow effectively unlimited lending of not recently released books.

> EFF is on the wrong side of both the law and common sense here and they will lose no matter how much they pay their legal team.

I don't understand how people have such certainty about this.

You have a situation where there are libraries who have bought millions of books from authors/publishers. The authors have been paid. Then, there is a pandemic and the libraries are closed, so the public has lost access to all the books they've paid for.

Giving them back access to the books they've paid for is obviously wrong? They're definitely going to lose?

It would be one thing if they had lent out more books than existed in all of the closed libraries, but is there any evidence that this is the case? That seems quite implausible, considering the massive number of books that have been paid for in all of those libraries.


It would've been interesting if they'd tried to compile a list of all the books that existed at all the closed libraries, and then only lent up to the limits of that list (which would continue to expand as more data were added), but I don't think anyone would argue that was practical to do at the time. The whole country can be shuttered at a moment's notice, compiling data like that takes tremendous effort.

However, in retrospect, I suspect the case might hinge on someone actually compiling that data. Did they, at any point, lend more copies of any particular title than existed at the time within all the shuttered libraries combined?


> compiling data like that takes tremendous effort.

It is a lifetime ago, but when I still went to the library in my country, about 27 years ago for the last time, there was already a system which had all books of all libaries at every library, where you could look up which copy of what book was in which library, how many of those author’s books all libraries had together etc. This was 27 years (and longer) ago; you are saying that, in 2020, I cannot press one button and get this info in all, at least, western countries?

That is pretty depressing if so.

Edit; come to think of it, it must be longer ago as I tried to copy (the UI and functionality without networking of) that system for my own books at home on my MSX; I stopped using that system when I got an Amiga more than 30 years ago.


> Giving them back access to the books they've paid for is obviously wrong?

That's a weak argument. Buses were parked but I couldn't just go and take one from the yard for a journey despite having 'paid' for it from public funds.


Fair use applies to copyright and not buses.

Fair use is a term and redefining is a big hill to climb but a worthly one.

All copyrights expire and all works have fair use clauses. It's just a matter of when and what country is issuing the copyright.

You can give away free digital books. Project Gutenburg has been doing it for years. Even if the author's family doesn't like it. It's not stealing either. It's simply waiting for the copyright to expire.

In this case they are using borrowing like a libruary as a defensive with covid hardship thrown in to justify removing a limit on the amount of books they can lend.


"EFF is on the wrong side of both the law and common sense here"

Are they? We can armchair critique all we want, but I find it doubtful that an organization with so much litigation and advocacy experience under their belt would naively throw away a ton of money on a losing battle.


> I find it doubtful that an organization with so much litigation and advocacy experience under their belt would naively throw away a ton of money on a losing battle.

I can come up with all sorts of reasons why the EFF might step in.

1. The IA is valuable enough that even a small increase in its chances of survival is worth spending a lot of money on

2. They don't think they can win, but they think they can mitigate the IA's losses

3. They think they can win in the media

4. They want to steer the legal arguments of IA in such a way that "controlled digital lending" has the best chance of surviving the lawsuit


Even with losing cases, there is value in having a competent legal team. With luck, the entire Internal Archive will not be at stake.

Indeed. IA's defense is mostly about controlled digital lending, while the National Emergency Library was definitely uncontrolled digital lending, and really has no good precedent to base upon. I think it's unfortunate that this case is likely to blowback on CDL as a concept, even though the issue was uncontrolled lending.

The lawsuit is only asking for damages for 127 books, for a theoretical maximum of $19 million according to https://www.vox.com/platform/amp/2020/6/23/21293875/internet... And with books from the last 5 years excluded, and the opt-out, and the fact they were partnering with multiple other libraries and could probably include their copies, the damages the authors could show will probably be relatively small.

It isn’t always about winning. Most of the time it’s more about not losing too much money. EFF’s legal team will help IA mitigate the damage wherever possible so that IA will have a shot at continuing to exist.

I won a civil law case against the MAFIAA being the owner of a site where links to download movies and tv shows as user-generated content.

I won, but I was in Spain, not the US.


> I won a civil law case against the MAFIAA being the owner of a site where links to download movies and tv shows as user-generated content.

Sure.

But this is totally different. IA is the one doing both the copying and the distribution.


This sounds interesting. Can you provide more details?

If by common sense you mean ethically, then a lot of people would disagree. This is a worthy battle and future case law.

Remind me not to donate to EFF. This money and time would be better spent on fighting EARN IT.

The Internet Archive's best bet is to settle and apologize very publicly.


> The Internet Archive's best bet is to settle and apologize very publicly.

One should never apologize for civil disobedience against unjust laws.


Most people view copyright overall as a just law even if the details are argued about.

You don't know that about "most people". Most people will deliberately pirate content given the chance.

I personally would say it's the bad side of justice - there is no downside to giving away that which is unlimited. It's mostly greed, but greed has utilitarian roots also, because encouraging piracy will discourage innovation.

It's a sad situation really: that the best solution we must adhere to is denying free resources to the masses. Not really human.


Quit trolling/baiting this thread - this isn’t some big corporatist conspiracy - this is protecting creator livelihoods big and small.

The vast majority of the civilized world agrees it is good to protect ‘art’ (from code to books) to keep it sustainable. Just because it can be infinitely duplicated and shared ‘freely’ does not mean it is sustainable to do so. If there is no money in art, less art will be made and most agree that this is not desirable.


The "Mickey Mouse Protection Act" moved the goalposts so egregiously as to damage the legitimacy of the legal protections. Those who manipulate the laws must understand they are weakening the rule of law by their actions.

If IA was making a principled stand against some aspect of copyright (like making only works >50 years old free to the public) I could follow and would even be on board but as far as I understand it what they are doing/did wasn’t principled it was just piracy.

This is not trolling or baiting (nor even intended to be). This is advocating for efforts, very public and visible, against broken public policy. Authors can still make a living without draconian copyright policy (life of the author + 70 years?) and suing libraries (!!!) for making content available during a pandemic.

> Just because it can be infinitely duplicated and shared ‘freely’ does not mean it is sustainable to do so. If there is no money in art, less art will be made and most agree that this is not desirable.

I don't believe the evidence shows this (but is a topic for another thread, "why do people create?"). People who create to create will still do so (IMHO, based on the history of humans), even if it is what it is for many people: a hobby funded by other work, the state, or private patrons through means other than controlled access to content.


It is not authors doing the suing here. It is the big four publishers. All the demonising of authors over this has gotten out of hand and should just stop.

That said, please explain[] just how* an author "can still make a living" without some form of copy-protection. And please refrain from the "signing tours", "selling merch", "live readings" nonsense. Writers in particular (but the visual arts, too) simply don't, on the whole, have the skills, inclination or desire to engage in much of that. The entire reason for engaging with the conventional publishing industry is to relieve an author of the tedious burden of sourcing artwork, arranging print and distribution, marketing and sales, leaving them free to write more stories -- what they do best. Self-pub can work for some writers, but they're the ones willing to sacrifice precious writing-time time on all those peripheral activities.

Bear in mind that the overwhelming majority of writers are writing in snatched hours in the early mornings/evening, over and above a "day job" to pay the rent and put food on the table. There's not a lot of time left over in a day to also become an editor/marketer/project manager.

eta [*]: and I genuinely mean: Just HOW should public policy look in order to provide some form of artistic protection for creators? It's easy to sit around and say "copyright is broken" (and I'd largely agree!) It's less easy to say what it might/ought become.


That said, please explain[] just how an author "can still make a living" without some form of copy-protection.

See: the entire history of books before computers.

See: Doctorow's Little Brother, which was distributed freely and still sold so well it went on the NYT's best seller list.

eta []: and I genuinely mean: Just HOW should public policy look in order to provide some form of artistic protection for creators? It's easy to sit around and say "copyright is broken" (and I'd largely agree!) It's less easy to say what it might/ought become.

The law shouldn't guarantee you a business model under actual capitalism or better systems. "We're going to enforce with a military your right to a business model" is an inherently silly proposal. It makes more sense to guarantee everyone has enough to live off of, which is something the state is already capable of, and something the best capitalist and socialist economists are advocates of.

Beyond that, if you're looking for a less-radical proposal: shorten the copyright period. The NEL didn't have anything that was five years old or younger on it. Current copyright terms are insane and against the common good in every sense of the word.


There are many artists that make some money off of donations e.g. via Patreon, without enforcing any kind of copyright on their work. Authors don't really make all that much money unless they're very successful. I doubt that most of them do it for the money alone.

I don’t remember the outcome of the particular case mentioned in https://www.theregister.com/2005/12/06/eff_needs_to_die/ , but I know their track record isn’t as good as this article’s headline implies.

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