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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

#61

Post by ghaff »

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?

I'm not sure I see the problem with one-to-one digital lending modulo the possibility of the reader potentially making copies for essentially free. However, there's a ton of legal precedent for lending out purchased physical copies of things. Certainly there's no precedent for the unlimited lending that triggered the current legal woes. Previously a lot of what the IA didn't really have a legal foundation but mostly slid under the radar because it generally seemed reasonable.

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

#62

Post by hiatus »

thebrid wrote: post #58
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 d…

> In the Internet Archive case, they're distributing whole, unmodified copies of copyrighted works which will of course compete with those original works.

Libraries would be illegal if conceived of today. If this weren't digital it would be a violation of first sale doctrine.

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

#63

Post by jzb »

jrockway wrote: post #40

Someone has to push the limits to see where they actually are. Now we know.

We knew. This was a dumb move on IA's part. I support the organization wholeheartedly, but it was a dumb and risky move. (They may be morally correct, but there was little if any doubt that they'd overstepped the legal bounds.)

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

#64

Post by haswell »

thebrid wrote: post #58
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 d…

To me, the point isn’t that what the IA was doing was fair use, but that what LLMs are doing arguably is not.

> In the AI use case, they're typically aiming not to output any significant part of the training data

What they’ve aimed to do and what they’ve done are two different things. Models absolutely have produced output that closely mirrors data they were trained on.

> not competing in the market with the original work

This seems like a stretch, if only because I already see how much LLMs have changed my own behavior.

These models exist because of that data, and directly compete by making it unnecessary to seek out the original information to begin with.

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

#65

Post by [deleted] »

thebrid wrote: post #58
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 d…

[deleted]

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

#66

Post by jrochkind1 »

ilamont wrote: post #52

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 rat…

So, this case was not about CDL (Controlled Digital Lending). It was about DL with the "C" removed. Specifically the IA's previous CDL program only lent out one electronic copy at a time per physical copy held, and this case is about a program at beginning of pandemic where they suspended these limits.

There could still be appeals in store for this case, but regardless of the outcome of this case, CDL could still be quite legal (and I think ought to be -- libraries ability to lend out books without publisher permission or license has been a huge gain for society, and I think must be able to continue in the electronic realm; and I think there are good legal arguments for it, on extension of first-sale doctrine to electronic realm and on fair use).

It was not helpful for the case of CDL to have this pretty bad ("uncontrolled digital lending"?) case decided first though, I agree this was not a very strategic move.

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

#67

Post by Ekaros »

Whole thing should be obvious if you tried something else too. Like say DVD movies, rip them on free service and then only stream 1 copy at time... Surely that should be allowed as well?

Why not music too, go out buy cds or vinyls, rip single one and now however many bulk copies you have you can stream at one time?

Software gets bit more messy as it needs to be installed, but why not share saas seats, just somehow enforce single concurrent user...

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

#68

Post by beardyw »

hiatus wrote: post #62
thebrid wrote: post #58

Earlier quoted context omitted.

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 d…

> In the Internet Archive case, they're distributing whole, unmodified copies of copyrighted works which will of course compete with those original works. Libraries would be illegal if conceived of today. If this weren't digital it would be a violation of first sale doctrine.

> Libraries would be illegal if conceived of today.

Just shows how far forward we have progressed. Maybe book burnings next to prevent resale?

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

#70

Post by wahern »

airhangerf15 wrote: post #16

Honestly the dumbest possible move by Internet Archive. IA has gotten more and more ideological as well, and it's been censoring content it doesn't like. I'm not sure if they're in the Wikipedia/Mozilla boat of screwed up political spending, but if they are, this decision should at least temper that down. I'm sure they'll be able to raise the money needed to pay off this lawsuit. It's true the Archive has a lot of am…

> I'm sure they'll be able to raise the money needed to pay off this lawsuit.

1) The relevant statute actually remits statutory damages for libraries.[1] Though this exception went untested because...

2) The parties negotiated a damages settlement between themselves before the trial court heard evidence and arguments on damages, but they agreed to let the summary judgment appeal go forth to establish firmer precedent.

[1] It's a qualified exception, but the IA was in a much better position in this regard than on the merits. And undoubtedly this limitation on damages figured into their original decision to test the waters.

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