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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

#101

Post by tombert »

boomboomsubban wrote: post #51
tombert wrote: post #42

Earlier quoted context omitted.

> 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."

Sure, fair enough, they were probably just waiting for the right time to pounce. The NEL was as good a time as any, but it was probably a matter of "when", not "if".

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

#102

Post by msla »

tptacek wrote: post #97
msla wrote: post #96

Earlier quoted context omitted.

CDL is how physical libraries work: They buy a book and then lend it out multiple times to multiple people, on a one-in one-out basis, who then do not have to buy the book themselves. They even repair books to avoid purchasing new ones again. Do you think physical libraries harm the people who bring books into being?

Physical libraries lend actual physical objects. They don't copy anything. This is a copyright case.

The effect on authors is the same: A book is circulated multiple times after being bought once.

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

#103

Post by tptacek »

msla wrote: post #102
tptacek wrote: post #97

Earlier quoted context omitted.

Physical libraries lend actual physical objects. They don't copy anything. This is a copyright case.

The effect on authors is the same: A book is circulated multiple times after being bought once.

That's not how the law works. Again: this is a copyright case.

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

#104

Post by doublescoop »

teruakohatu wrote: post #72
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…

> In his many interviews with U.S. media, he portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians. 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. If IA had won, IA would be hailed as a cultural hero. They hit and they missed. Claiming Brewster Kahle is…

This wasn't a case of the estates of dead authors trying to hold onto rights. Working authors were actively being harmed by the activities of the IA through the CDL. Working authors were met with refusals to meet to discuss this issue.

I don't think that characterization of Kahle is unfair at all. His position was unreasonable, determined to be illegal, and damaging to people who depend on copyright to license their work.

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

#105

Post by Kenji »

hexage1814 wrote: post #79
Devasta wrote: post #4

Awful news. Seems like this is the publishers planned approach going forward, nonstop lawsuits to henpeck the IA to death.

Why not going the sci hub route?

It would be nice to have an archive with the blessing of our overlords, but I guess true preservation of data can only happen in illegality.

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

#106

Post by zerocrates »

jrochkind1 wrote: post #83
zerocrates wrote: post #82

Earlier quoted context omitted.

They lost here on both regular CDL and the National Emergency Library "uncontrolled" variant. The court's decision and conclusion is almost entirely about just regular CDL: "This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-l…

Well, that is a disaster. I'll have to read more, I hadn't realized that.

Yeah the posture and discussion on that is basically "we don't even need to go into the NEL because CDL as a whole isn't fair use."

There are some limiting principles... the lower decision only covered books that were "in print" in eBook form... but the rationale here is quite broad and would easily stretch beyond these specifics. (There's a small amount of analysis related to whether the digitization involved in CDL is "transformative" that rests on official publisher eBooks being available, but there's a strong overall impression that the decision would come out the same way for things not already available digitally.)

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

#107

Post by [deleted] »

Aloisius wrote: post #56
ranger_danger wrote: post #47

Earlier quoted context omitted.

>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.

[deleted]

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

#108

Post by usr1106 »

msla wrote: post #96
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…

CDL is how physical libraries work: They buy a book and then lend it out multiple times to multiple people, on a one-in one-out basis, who then do not have to buy the book themselves. They even repair books to avoid purchasing new ones again. Do you think physical libraries harm the people who bring books into being?

But judges and/or legislators might not have fully arrived in the internet age yet?

I would also see a difference whether the activity is for profit (Google earning money with news scraped from Newspapers) and non-profit (IA and physical libraries).

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

#109

Post by indigovole »

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?

The physical object can be passed around without copyright coming into play. Copyright law has special provision for interlibrary loan, and archival copies.

There is nothing in the law that supports making a digital copy and and using technical safeguards to transfer it to exactly one person at a time - except licensing under the exclusive rights of the rightsholder.

Congress could write something into the law to support this kind of digital lending. However, Congress has been largely unable to accomplish anything interesting or innovative for a long time now, outside of a couple of flagship goals for one party or the other. Copyright law hasn't seen a substantial revision since the Act of '75, and ... a few ... things have happened since then. [DMCA added some new provisions for anti-circumvention and for safe harbor, but it didn't add new exemptions that most people care about, or modify the exclusive rights in any way.]

The entertainment/publishing industries have usually gotten what they want in past revisions, but by now the tech industry is pretty strongly on the opposite side. It would be interesting to see what kind of crazy-quilt changes got patched together in a significant revision.

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

#110

Post by doctorpangloss »

msla wrote: post #102
tptacek wrote: post #97

Earlier quoted context omitted.

Physical libraries lend actual physical objects. They don't copy anything. This is a copyright case.

The effect on authors is the same: A book is circulated multiple times after being bought once.

Are you suggesting that the law reflects an entrenched, emotional celebration of an antique, traditional notion of a library, and not something rational and consistent about lending, copyright and the economics of writing? Apostasy! I want this conversation to only be strictly about what the case law says, so that I may tell you about it “again” and again!
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