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The Internet Archive has lost its appeal in Hachette vs. Internet Archive

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Re: The Internet Archive has lost its appeal in Hachette vs. Internet Archive

#51

Post by boomboomsubban »

tombert wrote: post #42
boomboomsubban wrote: post #41

Earlier quoted context omitted.

It wasn't, the book publishers were clearly preparing the lawsuit for years before the NEL. The logic doesn't even make sense, if their objection was to the NEL they would have sued over that and the lawsuit would have been over four years ago.

> It wasn't, the book publishers were clearly preparing the lawsuit for years before the NEL. Even if that were true, they could have still been waiting for something like NEL to start the process, if nothing else to get the narrative on their side. I don't know, I don't work for a book company.

I'll agree that the NEL was a PR boon for this case, it's turned most of the discourse on this topic into people saying the IA deserved it for something unrelated to the case.

That's a different claim than "book publishers would have tolerated CDL without it."

Re: The Internet Archive has lost its appeal in Hachette vs. Internet Archive

#52

Post by ilamont »

This has been playing out for many years. And it's all because Brewster Kahle decided that an overly broad interpretation of the Internet Archive's mission trumped the rights of authors and publishers, and the laws of the United States.

When IA was asked to stop CDL - many times - he continued. The National Writers Union tried to open a dialogue as early as 2010 but was ignored:

The Internet Archive says it would rather talk with writers individually than talk to the NWU or other writers’ organizations. But requests by NWU members to talk to or meet with the Internet Archive have been ignored or rebuffed.

https://nwu.org/nwu-denounces-cdl/

When the requests to abandon CDL turned into demands, Kahle dug in his heels. When the inevitable lawsuits followed, and IA lost, he insisted that he was still in the right and plowed ahead with appeals.

He also opened a new front in the court of public opinion. In his blog posts and interviews with U.S. media, Kahle portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians (see https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st...). It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.

In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive.

Re: The Internet Archive has lost its appeal in Hachette vs. Internet Archive

#54

Post by bunderbunder »

raytopia wrote: post #34

Crazy that this is not fair use but ai is.

Something like this would never have fallen under fair use in the first place, I don't think. It doesn't really mesh very well with any of the factors US law lists as considerations when deciding whether or not use is fair.

If this falls under anything it falls under the first sale doctrine.

I generally side with publishers and artists on the generative AI debate, but I'll at least concede that they have some grounds for a fair use argument based on the transformative (legal jargon meaning, not buzzword meaning) nature of the work they're doing.

(IANAL, just guesing, etc etc.)

Re: The Internet Archive has lost its appeal in Hachette vs. Internet Archive

#56

Post by Aloisius »

ranger_danger wrote: post #47
indigovole wrote: post #36

Earlier quoted context omitted.

It is ultimately judgment calls by human beings that make the determinations. However, I don't see how you can read this opinion and think that the judges are just making their minds up on the spot. Every single decision point in this opinion goes back to prior cases and either explains why they apply or distinguishes this case from them to explain why they don't. - It's not like Campbell/Rose-Acuff (2 Live Crew v Ro…

>In sum, IA has not met its "burden of proving that the secondary use does not compete in the relevant market" How does this same thing not apply to physical libraries then? Even if the scope were limited to books IA itself owns (which they still denied anyways), why should one-to-one digital lending be any different than physical in-person library book lending?

Physical book lending doesn't involve making copies at all, so copyright law doesn't apply.

That said, some libraries do lend scans of materials and libraries copying materials on microfilm has been done for ages. Interlibrary loans are done frequently with copies. Hell, the Library of Congress does it.

Re: The Internet Archive has lost its appeal in Hachette vs. Internet Archive

#57

Post by TZubiri »

realityfactchex wrote: post #12
warmcompress wrote: post #7

https://storage.courtlistener.com/recap/gov.uscourts.ca2.609... On one hand: the court opinion. On the other, a breaking news tweet from Publisher's Weekly with hundreds of tedious low effort takes ready to melt precious brain cells. Please read the opinion.

Reading and understanding the opinion is the way for this one, for a simple reason as I understand it. The judges get to basically make up an opinion about the matter, which could be anything. And they can support basically any opinion using whatever they want, and it can be made to sound ok. The whole point is that the judges are forming a judgement. It's, like, their opinion on the matter. The judges don't have to…

[flagged]

Re: The Internet Archive has lost its appeal in Hachette vs. Internet Archive

#58

Post by thebrid »

raytopia wrote: post #34

Crazy that this is not fair use but ai is.

As much as I love the Internet Archive, is it really that crazy? The four factors used for determining fair use are:

  * the purpose and character of the use
  * the nature of the copyrighted work;
  * the amount and substantiality of the portion used in relation to the copyrighted work as a whole
  * the effect of the use upon the potential market for or value of the copyrighted work.
In the Internet Archive case, they're distributing whole, unmodified copies of copyrighted works which will of course compete with those original works.

In the AI use case, they're typically aiming not to output any significant part of the training data. So they could well argue that the use is transformative, reproducing only minimal parts of the original work and not competing in the market with the original work.

Re: The Internet Archive has lost its appeal in Hachette vs. Internet Archive

#59

Post by jandrese »

vidarh wrote: post #49
quartesixte wrote: post #44

Really wish one of the billionaires would fund a publishing house that worked off a very different model than the Copyright Protection Scheme that the current majors used. Something that would allow authors to capture upsides, publishers to recoup, and information to spread freely. Patronage? Large Advances + Subscriptions? Something besides what we have now. Writing a 200 - 300 page book takes fair bit of effort and…

The majority of authors who write novels hardly earn money as it is. I've written two novels, and they've sold more than average, and yet it can't cover my takeaway budget. That's fine, it's a hobby. But the point is only a vanishingly small minority write for money. Of course we want to keep some of those who do, but I don't know what a good solution would be. Not least because there's a vast chasm in terms of effor…

It's not about making money for the author, it's about making money for the publishing company. Nobody in government cares about the authors.

Re: The Internet Archive has lost its appeal in Hachette vs. Internet Archive

#60

Post by pcaharrier »

ranger_danger wrote: post #47
indigovole wrote: post #36

Earlier quoted context omitted.

It is ultimately judgment calls by human beings that make the determinations. However, I don't see how you can read this opinion and think that the judges are just making their minds up on the spot. Every single decision point in this opinion goes back to prior cases and either explains why they apply or distinguishes this case from them to explain why they don't. - It's not like Campbell/Rose-Acuff (2 Live Crew v Ro…

>In sum, IA has not met its "burden of proving that the secondary use does not compete in the relevant market" How does this same thing not apply to physical libraries then? Even if the scope were limited to books IA itself owns (which they still denied anyways), why should one-to-one digital lending be any different than physical in-person library book lending?

Because (at least under current law) that's not quite the same as what libraries are doing as explained here: https://news.ycombinator.com/item?id=41448376
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