The Internet Archive has lost its appeal in Hachette vs. Internet Archive • Hacker News Board

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

#271

Post by codedokode » Wed, Sep 04, 2024, 11:45 PM UTC

Ensorceled wrote: post #218

Atreiden wrote: post #11

> 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-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or author…

> When the conclusion is so obviously incorrect, we should examine the underlying precedent that leads us to such an erroneous conclusion. This precedent should give us pause. They're restricting a NONPROFITs to distribute legally purchased print media in a way that the publishers don't want. This is nonsense. They are not distributing "legally purchased print media", they are VERY literally distributing digital copi…

This is because you cannot buy and then lend an e-book. You can do it with a physical book but you cannot with a digital book due to DRM. IA was trying to work around this and failed. As a result, buyers of digital books cannot enjoy the same rights the buyers of physical books have; it means people have less rights now.

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

#272

Post by AlbertCory » Wed, Sep 04, 2024, 11:46 PM UTC

If I can relate this to movies [1], it might be illuminating:

Watching a movie, you normally get a "home viewing" license. That does not give you the right to show it at your business (even if you don't charge money and only 10 people come).

There's also a Public Performance Rights (PPR) license, and I always had to get PPR's because Google lawyers would shut us down otherwise. PPR costs considerably more than a home viewing license.

When I negotiated PPR's, they always asked three questions:

1. How many in the audience?

2. Are you charging money?

3. Are you advertising this outside Google?

If I were a movie theater taking $15 a head from anyone who showed up, my PPR would cost a lot more.

It seems that what IA wants is to use home viewing rights as though they had PPR's.

"No, they don't!" you retort? You might be right, but asking AG to design a license for them would be a lot more friendly than saying, "Hey, this is fair to you, take it!"

Edit: one thing I forgot to add: lawyers always prefer to start with their own draft. We can hypothesize a conversation between IA and AG (which never actually happened):

[IA] Hey, can we use your books? Write us a new agreement.

[AG] OK, that'll take a few months for a first draft. Then we'll negotiate.

[IA] OMG, we don't have all that time.

[AG] Okey-dokey, we'll see you in court.

[1] https://albertcory50.substack.com/p/culture-at-google-part-o...

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

#273

Post by dpedu » Wed, Sep 04, 2024, 11:46 PM UTC

Aachen wrote: post #187

dpedu wrote: post #157

Earlier quoted context omitted.

I couldn't think of anything off the top of my head either, but a google search found this: https://www.theverge.com/2022/9/7/23341051/kiwi-farms-intern... Edit: HN discussion: https://news.ycombinator.com/item?id=32743325

> citing an “immediate threat to human life” due to threats and potential criminal actions from Kiwi Farms users [...] Kiwi Farms is known for collecting and publicizing personal details about targets it holds in contempt, many of whom are transgender women Sounds sensible. I also wouldn't want to host such content tbh, similar to CSAM or pirated movies or so, hosting this material sounds somewhere between being a di…

An odd position to take seeing that the same article mentions the IA refusing to take down "terrorist content." "Terrorist content" is certainly worse than piracy or people being dicks online and obviously presents an greater threat to life.

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

#274

Post by tptacek » Wed, Sep 04, 2024, 11:46 PM UTC

creer wrote: post #270

tptacek wrote: post #80

Earlier quoted context omitted.

The further you take a federal case the more precedent you create. The infinitesimal odds IA seemed to have at winning this case have to be weighed against the precedent they have created that may bind on future controlled digital lending cases with better facts. What IA did here wasn't costless.

> future controlled digital lending cases with better facts. Was anyone else doing anything? Or standing ready to do anything?

I don't know, but anybody who wasn't doing anything and wasn't standing to do anything was more valuable to digital rights than the people who appealed this case to the 2nd Circuit, in that none of them actually damaged digital rights.

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

#275

Post by codedokode » Wed, Sep 04, 2024, 11:47 PM UTC

tptacek wrote: post #249

codedokode wrote: post #246

Earlier quoted context omitted.

What's wrong with lenging digital copies over the Internet? It is actually better because it allows people from remote areas to access the books, it allows lending books at night, so it makes using the library more convenient, saves user's time and library's money. Also, copying is ok in some cases; for example, the court found that Google scanning books for Google Books did it legally; 17 US Code 108 and 109 provide…

It's good to want things. The contours of the Google case are discussed in this decision: Google Books scanning is "fair use" because books aren't made available in their entirety, and the IA's library feature is (unless SCOTUS disagrees, which seems extraordinarily unlikely) emphatically not.

Google Books case establishes that scanning a copyrighted work is not always illegal; you cannot use that solely to prove the infringement.

Regarding "books made available for free": libraries allow to read books for free.

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

#276

Post by mumblemumble » Wed, Sep 04, 2024, 11:47 PM UTC

cmiles74 wrote: post #148

doublescoop wrote: post #104

Earlier quoted context omitted.

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…

How was the CDL hurting working authors? A library bought the book, paying the publisher and the author. The IA scanned the book for digital lending, this digital copy could only be checked out by one person and only when the physical book was not also checked out. I understand the court decided this wasn't okay. That aside, how was it hurting working authors?

The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers.

It also discusses that there is a very good reason why digital libraries don't typically get to have perpetual rights to a work at the retail (or used) price for a print book. Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. The ruling points out that publishers originally sold ebooks to libraries at the same pricing as print books, but abandoned the practice because they discovered that it was not financially sustainable.

And that's ultimately where the harm comes in. The IA is trying to create a loophole that subverts the income stream of all the people who work on a book by offering derivative works - which are never fair use; fair use is for transformative works - without paying the market's customary price for acquiring rights to create and distribute derivative works.

(As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers".)

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

#277

Post by tptacek » Wed, Sep 04, 2024, 11:48 PM UTC

codedokode wrote: post #252

tptacek wrote: post #76

Earlier quoted context omitted.

IA's arguments that this was fair use seem exceptionally weak: * Their "transformation" argument comes down to easing access, which has already been shot down in previous cases; unsurprising, since Napster could make the same argument. * Their "nature of the work" argument came down to the fact that some of the books they scanned were nonfiction. * They made a halfhearted attempt to claim that "amount and substantial…

If you buy a physical book, you have a right to lend it for free or re-sell it (first-sale doctrine). The publishers want to establish a precedent that you cannot do the same thing with digital books: the library must buy a special license and pay for every reading. So this is about stripping people from their rights regarding to books made with a new technology.

It's not the same thing. When you give a book to someone else, you lose a physical object and they gain one. To "give" an ebook to someone, you have to copy it. We have a whole body of law about when it's OK to copy things.

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

#278

Post by EvanAnderson » Wed, Sep 04, 2024, 11:50 PM UTC

gdw2 wrote: post #168

Glyptodon wrote: post #158

They should go for the route of letting people view webcam streams that look at physical book pages. Just need a camera per page or two.

Sounds like a similar concept to Aereo ( https://en.wikipedia.org/wiki/Aereo ) > Aereo leased each user an individual antenna and DVR situated in a remote warehouse that they could access over the Internet, allowing subscribers to view live broadcast television and to record the broadcasts for later viewing.

For anyone who doesn't know, though, SCOTUS ruled against Aereo, who subsequently closed-up shop, filed for Chapter 11, and eventually were sold to DirectTV.

You can't "clever" around the intent of the law (or around a well-funded lobby). An O'Connor v. Oakhurst Dairy[0] are the exception, not the rule.

(Aside: This is nothing at all like O'Connor v. Oakhurst Dairy-- I just can't resist the urge to cite it. It's too fun.)

[0] https://www.fedbar.org/wp-content/uploads/2018/10/Commentary...

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

#279

Post by codedokode » Wed, Sep 04, 2024, 11:51 PM UTC

tptacek wrote: post #277

codedokode wrote: post #252

Earlier quoted context omitted.

If you buy a physical book, you have a right to lend it for free or re-sell it (first-sale doctrine). The publishers want to establish a precedent that you cannot do the same thing with digital books: the library must buy a special license and pay for every reading. So this is about stripping people from their rights regarding to books made with a new technology.

It's not the same thing. When you give a book to someone else, you lose a physical object and they gain one. To "give" an ebook to someone, you have to copy it. We have a whole body of law about when it's OK to copy things.

IA allowed to read books throught the website so no copies are made. When lending a book through file download they used DRM to prevent reading after the lending term ends.

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

#280

Post by TeaBrain » Wed, Sep 04, 2024, 11:51 PM UTC

dark-star wrote: post #207

tombert wrote: post #172

Earlier quoted context omitted.

This is why I stopped donating to IA, and I will not donate until they get new leadership. I'm a very big supporter of a lot of what IA does, but I feel if I donate, my money is just going to fund more and more legal defenses because Brewster Kahle is being stubborn, and I'm afraid it's going to lead to the entire Archive being shut down. I've mentioned this before, but there are lots of cases where IA will let you d…

> IA will let you download full video games for the switch that are still being actively sold That's a weak argument that is the same as saying "BitTorrent is bad because you can download illegal stuff" or" file hosters should be banned because I found $illegal_thing on this one" Yes, a free upload service will get abused. And yes, they are very quick to take these kinds of warez downloads offline when someone notifi…

That example isn't the same at all. BitTorrent is just an application for torrenting. It isn't an organization centrally hosting content like IA is. Both Megaupload and Rapidshare are much more similar examples of sites that allowed anonymous distribution from central servers. Megaupload was taken down and Rapidshare ended anonymous file sharing after the Megaupload takedown.