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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

#311

Post by codedokode »

tptacek wrote: post #286
codedokode wrote: post #275

Earlier quoted context omitted.

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.

It was never anybody's claim that scanning a copyrighted work is always illegal. This is an easy, straightforward decision to read; I think you'd be better off just reading it.

The decision is that lending of digital books causes "market harm for the publishers". It outweighs anything else. So the court only cares about profits of publishers and not right of the buyers, including "first-sale doctrine" and right to lend a legally obtained book. The court sees the case as merely making illegal copies and doesn't want to make analogies with libraries lending out books. It is obvious.

You can apply most of those arguments to a library lending out (distributing) physical books without authorization and causing same harm to the publisher.

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

#312

Post by matwood »

jrochkind1 wrote: post #135
zerocrates wrote: post #106

Earlier quoted context omitted.

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…

So what I'm mad at is not that IA did CDL and imperilled thier other work -- it's that instead of doing CDL in a way most likely to result in a successful case if sued, they did it in a reckless not-C way that resulted in a bad case that ruined CDL, where maybe a better case with better facts would not have. In a more reasonable world we could imagine Congress might pass a law authorizing actual one-copy-per CDL by n…

I agree. IA skipped the C and basically poisoned the well for any future CDL type cases. Very frustrating.

IMO, properly executed CDL had/has a good chance of succeeding.

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

#313

Post by hiatus »

tptacek wrote: post #77
hiatus wrote: post #62

Earlier quoted context omitted.

> 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.

How? Libraries lend out actual physical objects. They're not xeroxing the books and handing them out.

The actual opinion rules on the concept of controlled digital lending more broadly. From page two:

> "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 authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."

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

#314

Post by joe5150 »

pcaharrier wrote: post #27

This struck me as significant (buried in the opinion's last footnote): "IA makes a final argument that, even if its Open Libraries project did not qualify as a fair use, we should restrict the injunction to the Open Libraries project and allow IA to continue CDL for books that IA itself owns. In support of that argument, IA argues that the fourth factor analysis would be more favorable if CDL were limited to IA’s own…

It's absurd that the most consequential part of this entire ruling is treated as a literal footnote and given no more due consideration.

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

#316

Post by mumblemumble »

wbl wrote: post #297
mumblemumble wrote: post #276

Earlier quoted context omitted.

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.…

IANAL but I don't think the work is legally a derivative any more than a JPEG of the Mona Lisa is. In US law those are the same for copyright. MS Word vs PDF shouldn't matter so neither should this.

The ruling's section on transformativeness explains the distinction. Note that "derivative works" under US copyright law works differently from how it gets defined in typical open source licenses.

My understanding is that, for the purposes of determining fair use, a derivative work is substantially the same thing but in a different format. Transformative work must involve significant additional creative contribution "Changing the medium of a work is a derivative use rather than a transformative one." They cite previous case law that holds repackaging a print book as an e-book as a "paradigmatic example of a derivative work." The law also offers some paradigmatic examples of transformative work, such as criticism, commentary and scholarship.

Based on all of that, I would guess that, for the purposes of copyright law, a JPEG of a painting is absolutely a derivative work and not a transformative one.

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

#317

Post by tptacek »

codedokode wrote: post #311
tptacek wrote: post #286

Earlier quoted context omitted.

It was never anybody's claim that scanning a copyrighted work is always illegal. This is an easy, straightforward decision to read; I think you'd be better off just reading it.

The decision is that lending of digital books causes "market harm for the publishers". It outweighs anything else. So the court only cares about profits of publishers and not right of the buyers, including "first-sale doctrine" and right to lend a legally obtained book. The court sees the case as merely making illegal copies and doesn't want to make analogies with libraries lending out books. It is obvious. You can a…

No, that is not at all what the decision says. There's a 4-factor test for "fair use". Market harm is just one of them. The court found IA failed all 4 tests. That's the ballgame: if your copying is (1) unauthorized and (2) not fair use, it's infringing. There's no "library exception".

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

#318

Post by [deleted] »

codedokode wrote: post #307
tptacek wrote: post #292

Earlier quoted context omitted.

I'm sorry to have to disagree with you here but in fact every page of a book you show inside of a web browser is under the law a copy of that page of the original book.

When you look at a book you make a copy on your retina (if you want to reduce to absurd).

[deleted]

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

#319

Post by leotravis10 »

pcaharrier wrote: post #25
Yawrehto wrote: post #15

I hope this doesn't bankrupt the Internet Archive (either the legal fees or the case - I don't recall what they're asking for). It would be bad if the Wayback Machine, the biggest internet archivist around, went under, and also all the books, software, et cetera that the Archive hosts. I wonder if there's any way to archive all of the Wayback Machine (82.3 petabytes), or, better yet, all of the Internet Archive (whic…

Shutting down IA altogether seems unlikely at this point (even if legal fees are substantial). They've written before about what the decision means (this appellate court affirmed what the district court did last year) and it doesn't touch things like the Wayback Machine: https://blog.archive.org/2023/08/17/what-the-hachette-v-inte...

Keep a close eye on the inevitable lawsuits that they're going to be up against. Obviously the music publishers are currently trying to kill the Great 78 Project and I expect other industries to pounce. (Especially the gaming and media industries). I can't see the Internet Archive exist in 2-5 years and we need to prepare for the worst case scenario. https://old.reddit.com/r/DataHoarder/comments/1bswhdj/if_the...

Discussion: https://news.ycombinator.com/item?id=39908676

Projects such as Anna's Archive are going to be much more critical than ever.

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

#320

Post by tptacek »

mumblemumble wrote: post #316
wbl wrote: post #297

Earlier quoted context omitted.

IANAL but I don't think the work is legally a derivative any more than a JPEG of the Mona Lisa is. In US law those are the same for copyright. MS Word vs PDF shouldn't matter so neither should this.

The ruling's section on transformativeness explains the distinction. Note that "derivative works" under US copyright law works differently from how it gets defined in typical open source licenses. My understanding is that, for the purposes of determining fair use, a derivative work is substantially the same thing but in a different format. Transformative work must involve significant additional creative contribution…

Just to be clear: works that are transformative are a subset of derivative works. They're all derivative works.
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