I disagree with this assessment on many levels, but I think the most important challenge I can make is to the idea that Brewster Kahle is a rogue actor, who in some sense mis-interpreted the mission and strategy of the Internet Archive.
For those of you who are just learning that name from this lawsuit, here's his wikipedia page:
Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws.
We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle.
So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism.
So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas.
If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done.
So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist.
That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done.
But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".
All of this sounds nice, but also ignores the details of the lost court case. When I learned more about the actual case details it really seemed like a strange hill to die on for the IA, and it was nearly inevitable they would lose. I think there was a very sensible middle ground the IA could have chosen to avoid it all while still sticking to their core mission.
I will claim that IA is an overly-sensible org because they fought this in court. That about show a healthy respect to the law, middlemen and authors to argue in the presence of a judge. For Publishers and middlemen, this is a hollow victory. Murky water.
Say for instance, I buy a book. I make a scanned copy and lend out the original. The person who borrowed the book, makes a copy and sends it back. I do this for 1 million times. I wasn't distributing copies, no one was distributing copies.
This is what we did in Uni. The class would contribute some small amount to the purchase of an original book. Then the person who bought the original with the classes money, made a copy, passing the original along. Within the week, every student had borrowed that book. And everyone had a copy. Do you see the murky water?
For a legal activist, government, or large company, the decision about whether to go to court is different than for individuals.
For an actor like that, you want to take cases that you can win to court, to establish precedent step by step. You want to settle cases you might lose out of court to avoid establishing precedent to your disadvantage. In this way, you can slowly change the interpretation of the law.
Taking this to court is seen as a mistake because it was a predictable loss and established a harsh precedent.
Internet Archive had lent books on a 1 reader for 1 physical copy basis for a long time, and the publishers didn't want to take it to court because the judge would need to weigh the rights of a person purchasing a physical good against copyright. They might no like the decision. It suited them to leave it untested.
Internet Archive chose to lend unlimited copies and pursue the matter to its conclusion in court rather than settling out of court.
Assuming Internet Archive were well advised, knew they would lose, and still chose to create this situation and go to court, you have to wonder why.
Are they trying to create an unacceptable legal precedent so that they can get the law changed? Some other reason I am not seeing?
Copying some parts of the book for educational purposes is allowed within fair use. Copying entire works isn't considered fair use.
A teacher buys a book which is a collection of worksheets. The teacher photocopies some worksheets out of the book to use in a non-profit educational environment. This is entirely fair use.
A teacher buys a copy of a textbook, photocopies the entire textbook, and hands it out to the class, that is not fair use because it is the entirety of the work.
Being the entirety of not is not always relevant to fair use. Of course a judge may take amount into account, especially when arguing damages, but fair use is a guideline to a judge not a set of well-defined rules (though collection societies love to print their own policies as being the rules...)
> fair use is a guideline to a judge not a set of well-defined rules
There are four factors of fair use. Factor three is the amount or substantiality is being copied. You're somewhat right there isn't an entirely objective standard to measure things, but there isn't exactly an objective measure to creativity.
You can't put something on a scale and get units of creativity a work has. You can't get a graduated stick and measure the creativity of a work.
If we're going to stretch the meaning of "stealing" to include situations where no one is being deprived of their property we might just as easily say that text book publishers have been "stealing" from the pockets of students for decades with the insane prices they charge.
The creators put in labour with the intention that their efforts would be recouped in the form of remuneration. You stole their labour simply because you could in do it in a way that is not easily visible/detectable. Theft of labour is still theft to me, be it Amazon or parasites on creative works that are the results of the cumulations of years of an individuals learning and mental effort to create something. There is a reason copyright was created. We wanted a mechanism where these people could be rewarded for their labour because having professional fiction writers/historians/philosophers benefits society.
When a creator's labor is recuperated yet they still seek payment via copyright due to the unreasonable length of time that is assigned, does the charging for further copies beyond manufacturing costs then count as theft?
Whatever you may think of what OP's buddies were doing, there is no way to apply any reasonable meaning of the word "stealing" to it.
There is indeed plenty murky here, and it is mostly coming from you in an attempt to incorrectly use an emotionally-loaded word in order to deceive people into supporting your position.
> emotionally-loaded word in order to deceive people into supporting your position
That's an entirely colourful way of phrasing it, considering I merely just said what I thought and have experienced, nor do I think I have the capacity to deceive at such a level. That is your opinion, and I accept it.
If we are going to use ridiculous definitions of stealing, I will have to point out that private, non-personal property - anything that you don't have direct personal possession and control over - is theft.
It's copyright infringement. It's not theft. Theft deprives an owner of use of an item.
When Bob puts in labour in order to make financial gain, and Tom takes the fruit of Bob's labour without paying what Bob has set the work of his labour as being worth.
Adding a parameter X to your definition expands it as follows:
> When Bob invests labor into X to generate financial gain, and Tom utilizes the results of Bob's labor on X without compensating Bob at his requested rate.
However, this definition becomes problematic for many values of X. Consider cases such as:
* Fashion styles
* Business models or store layouts
* Factory or house designs
* Cake decorating techniques
* Cooking methods
* Agricultural practices
In these examples and many others, the concept of "owning" the fruits of one's labor becomes murky. *Intellectual property laws were originally conceived to benefit society as a whole, not just individuals.* As our understanding of innovation and creativity evolves, we may find that some communities flourish better with more flexible approaches to intellectual property.
But Bob was paid. That's the point. Also most of 'intellectual' property is owned by corporations, not the creators.
If Bob prints a book and you take it without paying for it, that's stealing. If Bob prints a book and you buy it from Bob and you make copies of it and give it to your friends, that isn't stealing. And it shouldn't be classified as stealing, morally or legally.
The only reason it is considered illegal is because greedy corporate interests decided to make it so. Historically, people bought books and copied it and spread it around. That was the norm until fairly recently.
'Intellectual property' is theft. It is a fiction invented by the parasite class. Just think about it.
Bob's pay rate was agreed upon based on getting X number of sales, not one book.
You are promoting the parasiting off Bobs labor. You can try to justify it, but Bob worked expecting to get paid from those transactions, and they were taken away away because it was technologically easy to do. Bob/society expected payment to occur.
This is just moral pedantry. The law doesn't really mean anything if its not enforceable. Students pirate books all the time and face no legal consequences. Meanwhile, the good faith actors are punished with completely unreasonable book costs. At a certain point, you should point your finger towards an unfair system that leads to bad incentives, not students simply trying to learn.
The free flow of information is slowly being eroded by rights holders. If people don't find a way to stop being influenced by narratives that really only service this establishment, we will find ourselves, renting and not owning works of art. When rights to own and enjoy a creation on your terms gets taken away from you, the control over your life does as well.
As has been mentioned elsewhere, losing an appeal at this level sets precedent that does damage to the free flow of information. The best thing that the IA could have done to advance freedom would have been to bail as soon as it was apparent they had no chance to win (which was before the lawsuit was even filed).
That's not just a narrative that serves the establishment, it's a fact of life. We don't get anywhere towards change by ignoring the reality of the present situation—we have to work within reality in order to change reality.
Maybe. But this situation points to much larger problem, in my view. That people are starting to become accustom to common people rights erosion. Rights holders should not being wielding this kind of power against the public, at the end of the day they are still accountable to the public good, end of story.
No. He had no case to begin with. There was zero chance of him becoming some kind of hero from this action.
What might have made him a hero is having been smarter about how he went about this book/library project, and he's blown it. And he has now put the entire IA at risk by doing this stupid book/library thing under the same company.
The fact that he lost, and the plaintiffs affirmatively won on Summary Judgement [0] is huge. It shows Kahle/IA NEVER HAD A CASE from the outset.
Summary Judgement means, based on the undisputed material facts and the law, there is no purpose to a trial, and a proper judgement on the case can be made immediately. "Summary judgment is a pretrial motion that promptly resolves legal actions where the parties have no genuine issues with any material fact. The court produces a judgment for one party against the opposing party without needing a full trial." IA may appeal to SCOTUS, but I see no scenario SCOTUS even looks at the case, nevermind takes it and rules in IA's favor.
For years it's been an obviously unnecessary risk for IA. While it may have been a noble cause, it was absolutely a risk, and should have been done under a separate corporate/legal entity.
Instead, he recklessly barged ahead with no regard for likely consequences. The result is that the entire Internet Archive and Wayback Machine is now at real risk of being lost when the court awards damages.
I've seen far too many smart people doing stupid things, but this is one of the most glaring examples. I hope IA survives.
Why aren't others doing it? Because IA existed and no one wants to do redundant things. Today, they just stopped being redundant, so I hope others will rapidly invest the resources to make different Internet Archives...
> Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future?
Lots of libraries do free digital lending of ebooks in a legal way and have done so for a long time
I have never understood why a digital good isn't subject to the same protections as the physical one. Honestly, this sort of behavior only encourages piracy. Oh, I don't have the same rights if I buy your ebook? Ok then, I guess I won't.
That would likely violate the terms of service for whatever company the account was created with. Provisions against password/account sharing are pretty common.
Well, I'm not claiming it's practical; I'm just saying its the same.
Rather than mailing your friend a hard drive, you could mail them a door key and they can come over and use your computer to read the ebook or your couch to read the book.
>I have never understood why a digital good isn't subject to the same protections as the physical one
Because digital and physical goods aren't the same thing. Equal rights principles presuppose that two things are equivalent. Unequal things can be treated unequally.
Each copy of a physical book is mutually exclusive, a library can't buy one copy and then lend it to a thousand people at the same time. Placing limits on how digital goods are distributed is actually how you restore some equality in regards to the property rights of the author.
As I understand it, libraries with CDL have purchased licenses for the works they allow to be checked out in this way and do not scan books and lend out their digital scans.
And those licenses expire, and are more expensive than physical books.
And of course, not every print book is available digitally, and not every ebook is available from the small number of vendors that license ebooks for borrowing to libraries.
The third party ebook vendors libraries make people use for ebooks loans can also require accounts and collect data on library patrons and what they read to use for marketing, push ads, and/or to sell. None of that bullshit happens with physical copies are loaned out either.
>And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"
No, it's a different situation. In contrast, the government public libraries legitimately purchased ebook licenses (aka "renting") from the publishers and then "loaned" out a limited # of simultaneous copies in a legal manner. The book publishers approved this arrangement.
The Internet Archive didn't do that. Instead, they "loaned" out digital scans of books they did not buy ebook licenses for and took it upon themselves to name it "Controlled Digital Lending". This method circumvents the book publishers which is the opposite of what government public libraries did.
EDIT reply to: >If they have the physical book how is this any different,
When I wrote, "different situation" , it's about the "legal difference" and not "philosophical difference".
- situation with govt public libraries: The book publishers did not sue the public libraries that legitimately purchase ebook licenses from them. The publishers receive payments from that arrangement so there's no lawsuit for "copyright violation".
- situation with Internet Archive: The book publishers sued IA for copyright violation by lending books it never purchased ebook licenses for. The circuit appeals court sided with the book publishers unanimously by a vote of 3-to-0.
Those 2 situations above are different legally such that whatever precedent that's set by IA losing the case doesn't affect govt libraries that have been purchasing legitimate ebook licenses. I was trying to clarify gp's incorrect statement which could spread misinformation: "And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"
If they have the physical book how is this any different, it had to be purchased at some point or donated for them to acquire it. If anything I would argue they are doing more work for the publishers by creating an ebook from scans. I also think a sane interpretation of fair use would be that the scan is a new / derivative work that is transformative, but we'll never get there with the current legal climate. Philosophically I've always been there.
And yes, I would outright abolish copyrights if I could, so please don't try to what-if me, I won't care about the implications in the way you would want me to.
If anything, imo to be able to hold on to a copyright you should have a burden of proof that society benefits as a whole long-term from your work remaining copyrighted, and virtually nothing meets that burden of proof.
>If they have the physical book how is this any different, it had to be purchased at some point or donated for them to acquire it. If anything I would argue they are doing more work for the publishers by creating an ebook from scans
The publishers and the third party platforms libraries force people to use for digital lending can force ebook readers to create accounts and hand over their personal data and reading history and those platforms use that to push ads or sell that data to publishers and other third parties.
What the internet archive was doing didn't allow publishers to collect/sell that personal data, didn't give them the ability to limit/censor/remove titles at any time, and didn't allow them to charge excessive fees for the "privilege" of loaning the book electronically. From the stance of the publisher they risked losing a lot of money and power. From the stance of everyone else what the internet archive was doing was an improvement.
> I also think a sane interpretation of fair use would be that the scan is a new / derivative work that is transformative
The creative part being protected by copyright are the words, not the physical pages. You're not transforming the words; you're transforming the paper to bitmaps. All the words and concepts within them are the same. It's not transformative in the same way ripping a CD to an MP3 isn't transformative.
If I change the font for an ebook, have I meaningfully transformed it?
How is a single pixel of difference in potentially hundreds of pages of text a meaningful change? It isn't changing the characters or story itself in the slightest.
Please, defend that point as an actual argument that it's then somehow fair use to change one pixel of an ebook and have it be a meaningfully different work.
And those paying attention will see that the publisher-approved version of digital lending gives publishers a legal/technical off switch on the existence of libraries, to the extent libraries go digital. Is anyone here okay with this? Kahle/IA certainly aren't!
Exactly. The broader issue here is about control -- specifically, who has the right to alter the financial arrangement, at what time.
I think everyone can agree we've seen from academic publishing what a shitshow {public need} + {extractive private IP ownership} can be.
Requesting libraries to enter into agreements with publishers in order to loan copies of their books isn't in the public interest.
Because invariably these publishers will realize they can bump rates year over year. And then private equity will realize they can buy these rights holders for a secure income stream. And then the year over year price growth will accelerate.
And contrast this with physical first sale doctrine. (1) The library bought or was donated a copy of the book. (2) As long as they could store it, no publisher could tell them a damn thing about how they could and couldn't loan it.
This comment plus the parent changed my opinion on the case. They still may have gone too far be loaning out copies, but the fight to return to physical book loaning practices is worth it. Ownership and long-term availability matter.
Yea, I don't like the whole loaning out idea either. Loaning implies ownership. Corporate propaganda has done a good job of convincing people otherwise. I came across an article that was really good at explaining the issue of ownership around digital goods that people who want to have a balanced view of the situation should read. https://linustechtips.com/topic/953835-you-own-the-software-...
The biggest piece lost in the conversation around digital/IP rights is awareness of how it worked pre-digital.
First sale doctrine (in the US) said the buyer owned the physical copy and could resell or do what they wanted with that single copy.^
Obviously, that isn't portable to a zero-copy-cost digital realm.
However, the "buyers never actually own anything digital" modern reality is vastly different than the historical norm, in favor of publishers and platforms.
What was missed was the conversation around what baseline we should establish around digital ownership.
We've nibbled around the edges (you have a right to decrypt something you've purchased, in some cases), but we never clarified it sufficiently.
And without clarity, buyers only get whatever rights publishers/platforms decide to grant them.
IMHO, we'd be better served by establishing a clear floor of digital ownership rights, that no publisher or platform had the legal right to remove or obstruct.
That's how we did it previously, and it worked well...
^ There were some exclusions around mass/public broadcasting, but those were pretty limited.
> Obviously, that isn't portable to a zero-copy-cost digital realm.
I'm not sure how you figure that. Its still a sale. You might want to read though how much case law there is all over the world that conflicts with that conclusion. Read that post, it has plenty of examples how it doesn't matter if its digital.
Here is one in particular:
In a 2016 Australian case regarding Valve's refund policy for Steam, Australia's High Court carefully examined whether computer games sold through Steam are goods (and therefore property and consumer rights apply to them) or services (and therefore no property or consumer rights or apply to them), and concluded that they are fully goods, and that Valve doesn't merely sell a license to use the software, but in-fact sells the software itself, and that whoever buys a game from Steam becomes owner of the software that they purchased. Australia's High Court concluded: "Each of Valve’s challenges to the applicability of the Australian Consumer Law fails. The conflict of laws provisions in the Australian Consumer Law did not essentially carve out an exception for conduct by foreign corporations like Valve governed by a different contractual proper law. Valve supplied goods (which are defined as including computer software)."
It's incorrect to look at the concept of ownership from solely legal or solely technical perspectives, because reality is a joint application of both simultaneously.
What point is legal prohibition if technical implementation is trivial?
And what of legal requirements if technical implementation is impossible?
The unwritten assumption girding physical ownership was "... and it's non-trivial and expensive to physically copy a book."
With digital copying, that's no longer the case. Consequently, simply to maintain the same system the law would still need to change.
Unfortunately, in the back and forth between extreme positions, publishers used this difference to argue that ownership was no longer financially possible and usher us into the realm of rent-only.
PS: Valve maintains sufficient control of Steam-distributed apps that's a defensible position. A better case would have been GoG.
And you don't think that publishers having to be involved with digital lending is a problem? Libraries don't have to seek permission to lend paper books and they are not responsible for ensuring that those books aren't copied. Same should apply to the digital world.
> Why didn't other people, other national archives, other commercial concerns or non-profits join in this work?
I'm very confused by this statement and I don't understand if it comes from you not working in library and information science, your definition of an archives or your opinion on what an acquisition policy should be, but lots of national archives have and continue to archive the Web.
For those of you who are just learning that name from this lawsuit, here's his wikipedia page:
https://en.wikipedia.org/wiki/Brewster_Kahle
Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws.
We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle.
So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism.
So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas.
If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done.
So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist.
That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done.
But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".