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My thoughts in response to the lawsuit against the Internet Archive

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Re: My thoughts in response to the lawsuit against the Internet Archive

#181

Post by chx »

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

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

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

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

Re: My thoughts in response to the lawsuit against the Internet Archive

#182

Post by extra88 »

nordsieck wrote: post #175
wahern wrote: post #168

Earlier quoted context omitted.

> If that's the main argument of IA, they'll have a tough time in court. As a non-profit library the plaintiffs effectively have to show that the Internet Archive acted in bad faith[1] in order to receive statutory damages. § 504 (c)(2) says, > The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair…

> As a non-profit library the plaintiffs effectively have to show that the Internet Archive acted in bad faith[1] in order to receive statutory damages. >> The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107 Specifically, the plaintiffs have to show that uncontrolled digita…

IA clearly believed this was fair use and I’m sure can demonstrate reasonable grounds for that belief. Even if the plaintiff’s lawyers can make a stronger argument for it not being fair use (they probably can), that doesn’t negate the existence of IA’s grounds.

Here’s a story about weak but reasonable grounds: Say I think it rained last night because I glanced out the window in the morning and saw the street was wet. You say it didn’t because you got up earlier than me, saw everything was dry, and you saw a street cleaner come through, making the street wet. Clearly you’re right but before I had this information, I had reasonable grounds for my belief.

Re: My thoughts in response to the lawsuit against the Internet Archive

#184

Post by salawat »

eindiran wrote: post #156
voxic11 wrote: post #148

Earlier quoted context omitted.

The law actually balances many considerations, profit is only one of them. Maybe educate yourself, archival copies are one of the many exemptions to copyright. https://www.copyright.gov/title17/92chap1.html#107

I assume you intended to link to 108 (Limitations on exclusive rights: Reproduction by libraries and archives) rather than 107 (Limitations on exclusive rights: Fair use): https://www.copyright.gov/title17/92chap1.html#108 In any case, profit is a specific limitation on what libraries and archives can do: 108(h)(2) -- No reproduction, distribution, display, or performance is authorized under this subsection if— (A) t…

I would say B is debatable in all cases considering you'd have to factor in the costs of ebook medium, and the fact that there is a real argument that agreeing to publisher's licensing/DRM scheme can be trivially argued to be an unreasonable price.

Throw in the constraints arising from social distancing strongly disfavoring physical purchasing, and it sounds to me like the industry is simply refusing to adapt to the times.

If people will not purchase your book at the price you set it at, I'd argue that it isn't a reasonable price. Further, if you invest large amounts of capital into technological infrastructure to thwart free dissemination of digital content, and people decide not to aid you by recouping your investment through purchases, I'd consider that the Invisible Hand at work.

The publishing industry is less a disseminate anymore, but more an IP speculator. I file them with patent trolls at this point.

Re: My thoughts in response to the lawsuit against the Internet Archive

#185

Post by dredmorbius »

jjcon wrote: post #86
loeg wrote: post #72

Earlier quoted context omitted.

Libraries lend movies, too. I'm not sure where that fits into your metaphor.

Libraries lend physical copies of movies just like they lend physical copies of books

E-lending is increasingly a thing, actually.

Re: My thoughts in response to the lawsuit against the Internet Archive

#186

Post by ApolloFortyNine »

joshuahaglund wrote: post #51
ApolloFortyNine wrote: post #21

Earlier quoted context omitted.

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

Have you ever borrowed a digital book? It's for a limited period of time usually a couple weeks, in an app of some sort. That's what they did, that's CDL. They temporarily removed waitlists which did allow more people to borrow a title than they had licenses, as physical libraries closed and as schools tried to get online. It was an unprecedented time. They had the support of major libraries. They stopped early when…

These two statements contradict:

>It's for a limited period of time usually a couple weeks, in an app of some sort. That's what they did, that's CDL.

>They temporarily removed waitlists which did allow more people to borrow a title than they had licenses

That is not CDL, by definition (lending out more copies than they had licenses). Official source, March 30th: http://blog.archive.org/2020/03/30/internet-archive-responds...

Relevant quote: >And so, to meet this unprecedented need at a scale never before seen, we suspended waitlists on our lending collection.

Re: My thoughts in response to the lawsuit against the Internet Archive

#187

Post by ApolloFortyNine »

bscphil wrote: post #101
ApolloFortyNine wrote: post #21

Earlier quoted context omitted.

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

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

Official source, March 30th:

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

Relevant quote:

>And so, to meet this unprecedented need at a scale never before seen, we suspended waitlists on our lending collection.

Re: My thoughts in response to the lawsuit against the Internet Archive

#188

Post by wahern »

wahern wrote: post #168
dmurray wrote: post #50

> With this suit, the publishers are saying that in the digital world, we cannot buy books anymore, we can only license and on their terms; we can only preserve in ways for which they have granted explicit permission, and for only as long as they grant permission; and we cannot lend what we have paid for because we do not own it. This is not a rule of law, this is the rule by license. This does not make sense. If tha…

> If that's the main argument of IA, they'll have a tough time in court. As a non-profit library the plaintiffs effectively have to show that the Internet Archive acted in bad faith[1] in order to receive statutory damages. § 504 (c)(2) says, > The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair…

FWIW, here's the excerpt from the 1976 House Committee report regarding 504(c)(2) remittitur for libraries:

> In addition to the general "innocent infringer" provision clause (2) deals with the special situation of teachers, librarians, archivists, and public broadcaster's, and the nonprofit institutions of which they are a part. Section 504(c)(2) provides that, where such a person or institution infringer copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant's good faith should rest on the plaintiff.

From page 163 of https://www.copyright.gov/history/law/clrev_94-1476.pdf

Also recited in a recent informational circular at page 22 of https://www.copyright.gov/circs/circ21.pdf

Note that the circular seems to assume the apparent clerical error, "institution infringer copyrighted material", was intended to be "... infringes copyrighted material...", which makes sense as a simple typo--'r' instead of 's'. If so, the potential limitation in the statutory language to reproduction claims only, instead of any infringement claim such as distribution, may have been accidental; or an oversight, the committee being fixated on the increasing use of photocopying and the implications for libraries and schools.

Re: My thoughts in response to the lawsuit against the Internet Archive

#189

Post by tptacek »

hnick wrote: post #153
mulmen wrote: post #129

Earlier quoted context omitted.

I think that's an unfair take on the law. If you create something you decide what happens with it. That seems reasonable to me. Why are the rest of us entitled to your creation?

No man is an island. There are explicit influences in things that are created, but there are many implicit influences too. That thing that was created, could it have been made without this society or culture? Could it have been made in a different culture? Didn't we all contribute a little bit to it? So, while I do agree with your general point that people must have incentive to create and profit/control is one way t…

As Rayiner often points out, this argument applies even more powerfully to real property, which was usually expropriated coercively from its original owners.

Re: My thoughts in response to the lawsuit against the Internet Archive

#190

Post by SyneRyder »

einpoklum wrote: post #137
mulmen wrote: post #129

Earlier quoted context omitted.

I think that's an unfair take on the law. If you create something you decide what happens with it. That seems reasonable to me. Why are the rest of us entitled to your creation?

> If you create something you decide what happens with it. That seems reasonable to me. Yeah, with the original physical thing you created with your own two hands. Not with a copy of some text or image in a file.

A lot of couples out there would very much disagree that everyone should have access to the image files they created for each other.
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