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.
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.
I disagree with this assessment on many levels, but I think the most important challenge I can make is to the idea that Brewster Kahle is a rogue actor, who in some sense mis-interpreted the mission and strategy of the Internet Archive.
For those of you who are just learning that name from this lawsuit, here's his wikipedia page:
Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws.
We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle.
So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism.
So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas.
If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done.
So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist.
That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done.
But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".
All of this sounds nice, but also ignores the details of the lost court case. When I learned more about the actual case details it really seemed like a strange hill to die on for the IA, and it was nearly inevitable they would lose. I think there was a very sensible middle ground the IA could have chosen to avoid it all while still sticking to their core mission.
No. He had no case to begin with. There was zero chance of him becoming some kind of hero from this action.
What might have made him a hero is having been smarter about how he went about this book/library project, and he's blown it. And he has now put the entire IA at risk by doing this stupid book/library thing under the same company.
The fact that he lost, and the plaintiffs affirmatively won on Summary Judgement [0] is huge. It shows Kahle/IA NEVER HAD A CASE from the outset.
Summary Judgement means, based on the undisputed material facts and the law, there is no purpose to a trial, and a proper judgement on the case can be made immediately. "Summary judgment is a pretrial motion that promptly resolves legal actions where the parties have no genuine issues with any material fact. The court produces a judgment for one party against the opposing party without needing a full trial." IA may appeal to SCOTUS, but I see no scenario SCOTUS even looks at the case, nevermind takes it and rules in IA's favor.
For years it's been an obviously unnecessary risk for IA. While it may have been a noble cause, it was absolutely a risk, and should have been done under a separate corporate/legal entity.
Instead, he recklessly barged ahead with no regard for likely consequences. The result is that the entire Internet Archive and Wayback Machine is now at real risk of being lost when the court awards damages.
I've seen far too many smart people doing stupid things, but this is one of the most glaring examples. I hope IA survives.
Why aren't others doing it? Because IA existed and no one wants to do redundant things. Today, they just stopped being redundant, so I hope others will rapidly invest the resources to make different Internet Archives...
> Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future?
Lots of libraries do free digital lending of ebooks in a legal way and have done so for a long time
> Why didn't other people, other national archives, other commercial concerns or non-profits join in this work?
I'm very confused by this statement and I don't understand if it comes from you not working in library and information science, your definition of an archives or your opinion on what an acquisition policy should be, but lots of national archives have and continue to archive the Web.
> 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 against "the people who work very hard to bring new books into being" is unfair. The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years, the copyright will probably be extended again.
I agree with you about copyright, but the fact is that the IA never had a chance and we knew it years ago.
The top comment on HN a week after their launch of the EL is critical [0], right at the moment when HN would be most expected to rally to their defense. By the time the lawsuit was actually starting to take shape most commenters had become very concerned for the fate of the IA [1]. This is on a forum that reliably champions freedom of information, but most of us knew even at the time that what they'd done was extremely unlikely to pass muster.
The IA was never going to be hailed as a cultural hero because they stood no chance, and they are too valuable for other, unrelated reasons to make themselves a martyr. This never should have happened under the same legal entity as the web archive.
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.
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.
Except that IA is a non profit with a specific set of goals. Not only that but by the very nature of said goals (amongst others, preservation and archival of knowledge), they have to be even more prudent and have stability as one of their most important goals imo. Like, every goal they have becomes completely impossible to achieve without a very stable, long term outlook. "Hitting and missing" is usually fine, but it's an attitude that is more reminiscent of wallstreetbets than a serious knowledge repository that aims to preserve everything they can for at least a few generations.
To push the wallstreetbets analogy further, a hedge fund that bets on something risky and loses big is fine. But you don't just "hit and miss" at a large scale when you are in charge of trillions in retirement/pension funds. It just should not be part of the thought process in the first place, it's the completely wrong mindset.
Not that there's no room for activism , but it should be delegated to someone else or by supporting another group or organization that could take the fight and have much less to lose.
> If IA had won, IA would be hailed as a cultural hero.
You need a little bit more wisdom to change extremely entrenched laws. Simply breaking them has close to zero probability of changing them. This was evident from the start.
IA already had some disputes with rights owners for some of the content they archived. They should have progressively resolved these disputes until some pattern emerged where either mass archival of old movies, TV shows, news videos, video games, and similar was broadly acceptable, or broadly not. IA could have won this. I think most publishers were unwilling to burn money on enforcing their copyrights with products they no longer exploit.
> If IA had won, IA would be hailed as a cultural hero
This is ends justifying the means logic. (More accurately, it is showboating.)
Let’s concede for the sake of argument what they wanted to do was unarguably good. It’s still an astronomical long shot. And one with real costs, financial and institutional.
IA incurred those costs, and in the process not only destroyed the library but set a harmful precedent. They threw out the good in pursuit of perfection.
This isn’t about swinging and missing. This was a project in direct contravention of the copyright laws and agreements they have within the very jurisdiction they operate. It’s like if they saw the ball coming, and in that moment decided baseball is dumb and they they would rather be playing soccer instead so they threw the metaphorical bat down, tried to kick the ball already pitched at them and somehow broke their neck in the process. That shouldn’t have been possible.
I wouldn't have hailed them as a hero. While copyright law in the US is insane, what they were doing is equally wrong. I don't want either extreme to prevail.
> The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years
Note that copyright lasting 50 years after the author's death was already in Berne Convention from 1886. Some (but not all) of these extensions in US were just adaptation of older weaker US copyright to international conventions.
I mean, many authors do care about their copyright. So if you disregard copyright en mass, then yeah, you are against the people writing the books who care about their copyright.
You could have made a fairer point if the IA only disregarded the copyright of authors who are dead or something like 10 years past publication.
You’re taking an extreme and ultimately wrong position.
The the name of this nonsense, the Internet Archive damaged itself, perhaps mortally and damaged the concepts it stands for. Archives should be run by boards of archivists and librarians, not reckless activists.
The correct way is to change laws is to lobby your elected representitive. Blatently breaking them generally doesn't work. It can when the laws are morally repungent, but the majority of the population are never going to find copyright law repungant the same way society found, say segregation, repungent.
Copyright law may suck. The IA's actions were an extremely silly way to fight it, really didn't help anybody, and it was obvious from the get go that it wouldn't.
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 download full video games for the switch that are still being actively sold [1]. The same applies to a lot of movies and TV shows, available via torrents no less.
Before someone gives me a lecture about data harboring laws and fair use, I know that it is technically on the copyright holder to issue takedown requests for infringing material, but even still, I think they'd be smart to be a bit proactive about this. If I know that the Internet Archive is an easy place to get pirated material, then I'm quite confident that their staff does as well. If there's even one employee email that implies that they know about pirated content but didn't bother taking it down, then I think that's grounds for a lawsuit (though I'm not a lawyer).
Much as I respect him for founding IA, I think that Kahle needs to be replaced as a leader.
[1] I'm not going to link it here because I'm not sure HN's policy on potentially legally dubious material, but it is not hard to find.
So the IA should be forked; you can support the fork and people like me Brewster Kahle's original.
People who frequent libraries think CDL at retail prices is just; others that it is an end-run around publisher's rights.
But libraries pay so much for their limited-lending copies! Why isn't there any support for regional or global libraries? Publishers are like a syndicate but there's no opposing union so they run ramshod over the proletariat. Are libraries not good things? Beacons of culture and so forth? The IA clearly can't afford to fund CDL at library rates, but can't it get funding! Why won't the government step in and decree a federal library? Depending on geography, you're local library is probably already funded at the state and federal level.
> IA will let you download full video games for the switch that are still being actively sold [1]
I am not seeing that anywhere. I see a file called “My Nintendo Switch games collection” and it is a big jpeg photo of a bookshelf. Is this what you mean?
Same here, long time supporter for many years. Stopped donating after they announced the emergency library thing during covid, it was immediately obvious that they were shooting themselves in the foot with it and the IA was cooked.
I will admit that I am personally on the fence. I knew for a while that IA was in legal crosshairs and I actually encouraged people to donate to it on this very forum. I am not sure it is fair to stop donations over one miscalculation. Their core mission remains in place and IA is more important to the ecosystem than wikipedia. Not to mention, with this appeal lost, it is not unlikely other entities will try take IA out.
> 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 notifies them.
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.
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-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."
"IA maintains that it delivers each Work “only to one already entitled to view [it]”―i.e., the one person who would be entitled to check out the physical copy of each Work. But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library. 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658 (“We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.”)."
It's true that this case isn't really about CDL, but it's also not just about the EL.
It's not about CDL because it's very specifically focused on Open Library's specific implementation, Open Library. Nobody is suing Hoopla or OverDrive. The courts are openly acknowledging that by explicitly spelling out why this ruling only applies to Open Library and not to other well-known CDLs.
And the Emergency Library was just the concrete pressure pipe that broke the camel's back. Publishers and author's unions had reportedly been trying to negotiate with IA about OL all along, and EL was just the move that prompted them to stop playing nice and take it to court. The rulings don't need to focus on EL, though, because a ruling against the aspects of OL that are under contention would automatically apply to EL as well.
I wish people would stop saying they were doing CDL. CDL means being able to lend out a digital copy of a physical book in place of the physical book. The findings in the case showed that IA had lost complete control of the physical book so at that point they were simply breaking copyright. Add in that they steered people to their own used book store, and this case never had a chance.
A lot of people say this about Brewster Kahle but nobody else started the Internet Archive. Even on its own people could have fought it on copyright violation grounds.
The reality is that everyone thinks “I would have sold bitcoin at $70k if I bought it for $100” but anyone who would have sold would have sold at $1k. The only guys who actually ride it from $100 to $70k are the true believer types. And you’re not going to convince them that $70k is the top.
It’s the same way. He was always going to push the limit. That’s how we got IA.
Nah, I’m running an ArchiveTeam warrior. I’m team Brewster. Let’s go!
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?
A physical library does not involve making a copy, but lending out an existing physical copy. One book, one reader. "Controlled Digital Lending" literally involves making and transmitting a copy to another physical medium electronically. Brewster has endangered the good work done by people at the archive for a case he was never going to win and which was of dubious value. If he wants to be the next Anna's Archive then he should drop all pretense and go do that... but leave the archive to do what the archive is meant to do.
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).
> Do you think physical libraries harm the people who bring books into being?
Yes, actually, I do. But the public benefits of libraries outweigh the harm it does to authors. But, the fact that I can buy a book once, and pass it between 50 friends to read feels unfair to the author who effectively makes no money off of the work.
Well what he did had some value. It showed me that somebody else in that position can share my beliefs about how the system should function.
"[IA] have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society" - to what extent has this had any effect on those services on WayBack machine? Does it not still collect and load a webpage today just as it did in 2015?
The downside loss was low here, the upside was worth it, even if the approach was unlikely to every work. It could lead to change in 100 years. That's important.
I'm not sure one should be so certain on this. I don't intend to suggestion it is an intentional action, but I do find that libraries are inherently at odds with how most of copyright otherwise works. There is a tension in this relationship and one that is likely pushing towards libraries becoming illegal for new forms of media. A common sentiment I've seen, expressed for different reasons by different people, is that if libraries didn't already exist, they would be illegal to create.
This is part of the larger role copyright plays in society, from being used as a legal hammer to handle AI issues (as in, when all you have is a hammer, everything looks like a nail) to newer digital media being sold in a way where one can't easily share what they own (if you even can call it owning at this point).
I think you misunderstand the situation. If you haven't read the lawsuit [1] I suggest you look through it.
Basically, there is an established practice for lending printed books: the library buys a book and lends it to patrons without permission from the copyright owner.
However, publishers believe that digital books are different from physical books and established practice doesn't apply to them; they believe that lending should be made at publishers' terms, to be specific:
- only "academic libraries" (chosen by publishers) may lend digital books
- they may lend them only to the members, for example, only students of the university, not to random people
- library must buy a special "library license", which might have arbitrary price and arbitrary terms
- the license has a limited term: sometimes it is 1-2 years, sometimes it is 26 lendings, after which the library must purchase a new license
- the library must use publishers-approved DRM which might not work on some devices
To enforce these rules publishers use DRM that prevents anyone from buying a digital book and lending it to other person (which was possible with digital books). So, in publishers view new technology means new rules and new opportunities.
The IA found a workaround: they bought physical books, scanned them and lent those digital copies instead of a physical book, provided that only one user can read the same book at the same time. They acted like a library but using remote access to a digital copy. The lender might read the book on IA's website enforcing the terms of use or download a DRM-protected PDF.
The lawsuit is about whether IA actions are legal or not (i.e. if digital books may be lent like physical books). Given that in future there will be less and less physical books, if publishers win, it will mean that libraries will not be able to lend contemporary books at the same terms and costs they lent physical books.
There are several complications: dubious partnerships by IA with libraries to increase the number of lent simultaneously copies; dubious decision to remove limits during COVID pandemic. However, there are facts that play in IA favour: there are precedents when making digital copies was considered legal (by Google Books), and there are a 17 US Code 108 [2] and 109 [3], which allows some exemptions from copyright for libraries and archives.
What you describe as lending a digital copy, is making new copies. As a matter of engineering fact, the bytes were copied from one location to another; as a matter of black-letter law, that is making a copy in the sense that it is copyright infringement to do so without a license. That IA 'controlled' it to have only one outstanding copy at a time in hands other than theirs does not make it legal. The carveout saying libraries can make three copies does not cover them making hundreds.
If IA would like five dozen copies to be morally equivalent to one copy as long as they ask each person who received one to swear they deleted it before IA makes another, they can call their congressman and ask them to propose a copyright law amendment. They did not do this, and instead just knowingly violated the law repeatedly. Wailing about how libraries won't exist in the future is silly, because it just takes reforming the law to fix this, but IA seemed to be under the impression that as long as the rules would one day be amended, they could act as though they're already amended that way today.
> 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.
Who's this asshole who hates books and authors and the law?
Evidently, reasonable people differ in opinion on this topic. It's fine that you disagree with what Kahle has done, so do I, but I would have found your comment more persuasive and interesting if you didn't reduce your opposition to a caricature.
We’ve been here before: you can’t punish someone into being your consumer. Someone who wants your product at the price you offer it will ultimately pay for it. Short sighted business decisions ultimately hurt the industry more than accepting the need to change your business model.
I also have a personal gripe with the Wayback Machine; there is absolutely no way to get something removed once they archive it (despite the data including accidentally leaked PII for example - which can cause actual harm to someone).
Not only do they ignore robots.txt, they ignored all emails sent to info@archive.org from the actual domain in question which I owned, with a link to a URL on the domain asking them to remove it.
I can understand wanting to preserve some large website's article that is of public interest but this is just malicious / dangerous. It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content.
Morally justified or not, it's really hard to feel bad for someone who stuck their dick in a bear trap when when we all stood there screaming "don't stick your dick in that bear trap" so loudly blood shot from our eye sockets. The Internet Archive doesn't deserve to go down like this, and regardless of his long history of fine efforts, it doesn't deserve to be run by that God damned idiot.
I agree CDL was a mistake. The IA should have never embraced DRM and shared as much without it as possible, silently archiving the rest for saner future generations that don't let so-called IP-owners restrict their free speech.
Those supporting IA's position range from the American Library Association (the world's oldest & largest library advocacy group), to individual libraries of all kinds, to expert IP law academics, to public-interest advocates like the Center for Democracy & Technology or Public Knowledge, to fellow open-culture organizations like Wikipedia, Creative Commons, & Project Gutenberg. Also: lots of book authors, including those with commercial success & titles inside the IA's lending program.
The IA was in the leading position, sure – but taking the arrows for a very large group of like-minded organizations sharing a stance against copyright maximalism. Personalizing it as one man's radical crusade is odd.
>asked to stop… tried to open a dialogue
Saying no to the copyright maximalists, even through their claims of absolute control & threatened or actual lawsuits, has been essential in establishing the actual settled law around copyright.
What sort of 'dialogue' can be had when the sides have incompatible views of the law: one believing in a permissionless right to do an exact something (supported by reasoning & precedent) and another asserting an absolute right to prohibit that exact same thing (supported by other reasoning & precedent)? Each side needs to enact their beliefs then resolve it in the courts.
HathiTrust - a major consortium of university libraries – was the named defendent in an earlier lawsuit by some of the same copyrightholder interests with regard to Google Books scanning. (It's also an ally of the Internet Archive in this fight.) Should HathiTrust have rolled over when "asked to stop" scanning by rightsholders? Absolutely not: they won in court & on appeal.
If Sony hadn't appealed the Betamax decision to the Supreme Court, VCRs & everything since that let people record their own copies of TV programs could've been "illegal". A mere 'dialogue' with TV broadcasters or moviemaker trade associations couldn't have done anything: the issues had to be ruled on by legal authorities.
>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.
I agree that the overheated rhetoric from both the plaintiffs (about giant but never-proven sdamages) and defendants (about how central these principles are to IA) may have created that impression in some coverage – but the idea this was ever existential for IA, in legal costs or potential damages, is pure paranoid fantasy.
As a non-profit, the IA files detailed form 990s with the IRS showing income & expenses. I challenge you to find any hint of legal costs changing other operations in the years since the lawsuit was filed (2020) and appeals launched.
I suspect, but have no inside info, that much of the costs were borne by other advocacy & legal organizations/donors that wanted to pursue a ruling on these particular essential issues. That is: this battle was fought with resources targeted for this program and these legal principles, not resources diverted from other programs.
As part of private settlement with the plaintiffs in 2023 – not any court monetary judgment against it – the IA agreed to make some undisclosed payment but ALSO had permission from the plaintiffs for IA to continue to pursue appeals (like the one just ruled-upon) on the issues important to IA, at no risk of further damages.
That's hardly the "scorched earth" plaintiff behavior implied by some hyped coverage imagining an IA bankruptcy, or other threats to its ability "to survive".
This was always a dispute on some copyright principles; it will be a loss to the public if IA's vision of format-shifted digital lending is ultimately ruled illegal, but no impact to IA's other long-established programs.
Finally: this may not be the final chapter & ruling on these issues. Sony had to appeal all the way to the Supreme Court before getting the Betamax ruling in 1984. Google had to appeal all the way to the Supreme Court before getting a ruling that API reimplementation could be fair use in 2021. I don't know if IA will judge it as worthwhile to appeal. But they might! And before those other historic final appeals, the preceding judgements seemed pretty definitive and bleak for the ultimate victors.
Which jurisdiction do you have in mind? Russia? China? There are few others that don't have similar copyright laws to the US or won't bend quickly to US demands.
It echos of the debacle at Mozilla. A critical nonprofit captured by an egomaniac ceo who hijacks the organization for grift or their personal crusade.
Very much not a surprise. I think the Internet Archive is providing an invaluable service to humanity in preserving works that would otherwise be lost to time. it is one of the crown jewels of the Internet, doing a job that nobody else is willing to do. But at the same time I know the courts side with publishers pretty much every time and copyright law being such as it is they're totally screwed. The only real question is how many trillions dollars will the judgment be. Preserving history is at odds with the profit motive, and lawmakers care a lot more about the latter than the former.
But, beyond this ruling, could Internet Archive just scan the books, store the data and release it to the public at a later time? I am just thinking about the preservation part in your comment.
"A later time" being the after the year 2100 for most of these works. I am not exaggerating. If the author is still alive today their works won't enter the public domain until after you are dead.
One can argue that the Internet Archive would be effectively useless if they strictly followed copyright law.
I agree, it can take a while for the limits on something like this are found. I would love for all books to be available there but I see the concerns (overblown) of authors and publishers however, they’re in a tough industry and it’s getting tougher. I think IA should take the L and save us from AI being the only source of information in 10 years or so. Soon most people will choose instant coffee over roasting, grinding, and brewing their own from beans. Hopefully the judge(s) will take their value and uniqueness into account and give them a small judgement with a much bigger one waiting in the wings if they ignore the decision. Maybe they can move some place safer like Russia or China and serve from there.
> But at the same time I know the courts side with publishers pretty much every time and copyright law being such as it is they're totally screwed.
I mean... they did just scan a load of in-copyright books and then let anyone download them with no restrictions. What did they think was going to happen?
I think you have to be particularly extreme and naive to think that would have been ok, legally or morally.
Sharing information is always morally OK. It's copyright itself that is a severe infringement to our right of free speech without a good enough reason to justify that.
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 books. In our view, the fair use analysis would not be substantially different if limited to IA’s CDL of the books it owns, and the fourth factor still would count against fair use. So we decline IA’s invitation to narrow the scope of our holding or of the district court’s injunction."
In other words, even if one purchases a print copy of the book, fair use would not allow them to lend a digital copy of the book to one person at a time. Why the court concludes that that "would not be substantially different" is unclear from just this footnote.
> Why the court concludes that that "would not be substantially different" is unclear from just this footnote.
It's because of two primary points made elsewhere in the ruling.
1. Copyright law tolerates lending by libraries in the case of print books because those books eventually wear out. Digital copies, on the other hand, arguably do not wear out. Therefore, the court does not think that what is tolerated for print books should be tolerated for digital books. It does not address the fact that print books can be lent out hundreds or maybe even thousands of times before needing to be replaced, whereas some publishers are treating e-books as "wearing out" after about 25 reads, at which point the library has to renew its license.
2. Publishers have established a very profitable licensing arrangement with libraries for e-books, and CDL undercuts it. One could argue that if CDL had been an accepted fair-use exception from the beginning of digital lending, such a market would have never taken off, in which case the "CDL undercuts the market" argument would not have had the same weight. But here we are, like it or not, in a time when most of the major publishers have established these licensing terms, and so the court observes that a market exists that can be undercut.
>Copyright law tolerates lending by libraries in the case of print books because those books eventually wear out.
I don't think this is entirely accurate when it comes to copyright law. The law extends back centuries and digital books only appeared within the last couple of decades. The ability to lend a book (by libraries or any owner) without committing copyright infringement is much more closely-related to the first sale doctrine (which has been around for at least a century in U.S. law in one form or another) than it is to a book's durability or lack thereof. Recall what the opinion says about the underlying rationale for copyright law: let the authors have a period of monopoly so they'll have an incentive to keep writing. If the first sale doctrine doesn't defeat that rationale in the case of print books then the same logic should apply to digital copies; it's the first sale that matters, not how many times the owner of an individual book can then lend that book to someone else. Granted, as in your second point, publishers can limit lending of digital books through license agreements or other digital rights management, but at that point you're in the realm of contract law, not just copyright.
It's a footnote because it's the most inconsequential part of the ruling. The copyright infringement status of making thousands of unlicensed digital copies is not affected by whether you own a physical copy or not.
I still cannot imagine how IA thought that giving unrestricted access to copyrighted books was a good idea. It seemed inevitable that someone would sue them over it.
Honestly, I think that IA's ambivalence towards the use of their website for outright piracy might lead to their collapse, and that's a shame. The Archive can be a really wonderful tool, though I'm not sure that its current management really knows what they're doing.
IA was trying to act like a library: they bought physical books and lent digital scans of them, ensuring that only one user can read one book at a time. So IA's position is that you can treat digital books like physical books, i.e. re-sell them or lend. The only difference is that they don't require you to come to library in person.
Publishers position is that digital books are different from physical; you have no right to re-sell or lend it without publisher's permission. This is what this case is about.
Am I to understand that it’s legal and okay for LLM providers to profit massively from training commercial models on copyrighted works, without the rights holders’ permission - but illegal, and unacceptable, for private individuals to access a digital library?
Copyright protects mainly against the distribution of works, not about consumption. It is not the access to the library the bit that is illegal here, it is illegal for that library to distribute works without the copyright holders permission. You might like it or not (I don't), but copyright laws are fairly straightforward.
Things will get worse before they're get better, but ultimately the publishers will pay dearly for this.
First, the IA should move to a more favorable copyright jurisdiction to preserve the collection.
Second, there's no point fighting the copyright lobby, especially so in the US. We need to build an alternative access to knowledge that bypasses the copyright/ownership of knowledge paradigm.
I'm starting to think this is the case, but the US is a country that enforces its version of copyright with gunboats. Not an easy task to simply find another jurisdiction.
How about we feed an "AI" with it, like MS does with licensed code? Then we can host that AI and let people use that, without having it output where some text is from, just like MS does for code.
Right. Just let OpenAI do it. Then it’s allowed. And internally, let the “model” be a 7zip compression algo. Just call it an “LLM”. Courts won’t know the difference. Haha
Right. Then there's the issue of compiled code which is the elephant in the room, as ultimately AI will be able to decompile code with ease. If it cannot, say through encryption, then AI will be able to emulate it.
If I can think this then I'd reckon I'm not alone, the thought must be high on the agenda for MS and like.
>We need to build an alternative access to knowledge that bypasses the copyright/ownership of knowledge paradigm.
That's what shadow libraries are doing, as are many other older & less prominent models of information distribution. These projects should be proliferated & promoted to challenge the dominant propaganda that people can only do things the U.S. government says they can.
> First, the IA should move to a more favorable copyright jurisdiction to preserve the collection.
Which jurisdiction do you have in mind? Russia? China? There are few others that don't have similar copyright laws to the US or won't bend quickly to US demands.
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.
there is no such thing as a 'home viewing license'; you don't know the basics of us copyright law, despite having negotiated public performance rights licenses. you need a license from the copyright holder (or a fair use defense) when, and only when, you are doing one of the things reserved to the copyright holder under 17 usc §106 https://www.law.cornell.edu/uscode/text/17/106. specifically, 17 usc §106(4) is public performance. 17 usc §106(3) is distribution to the public, which is what the ia was doing
no sort of viewing, home or otherwise, is restricted in any way by the copyright law. you will not find the phrase 'home viewing license' in any us case law about copyright. ('residential viewing license' does occur in cases about 47 usc §605, which is not a copyright law.) you just made it up without having any idea what you're talking about. you should not mislead people about your expertise in that way; it is a bad thing to do
That’s an unnecessarily pedantic comment. The US copyright act gives the copyright owner exclusive rights regarding public performance and it also defines where public starts. Sure, there is no license for home viewing but that’s not really changing anything about the point that OP was making.
You both put 'home viewing' in quotes. Clearly you both know that's not actually a thing so this part: "you don't know the basics of us copyright law" is uncalled for.
> Supposedly an employee once filed a ticket saying “please put a pony in my office.” (He didn’t get one, in case you’re wondering, although one hears conflicting stories on this.)
benley did get a pony for a day though had to provide his own fodder. There's a photo of him and Vint Cerf with the pony floating around.
Readit News
https://www.theverge.com/2024/9/4/24235958/internet-archive-...
https://www.wired.com/story/internet-archive-loses-hachette-...
https://finance.yahoo.com/news/major-book-publishers-defeat-...
https://news.bloomberglaw.com/ip-law/internet-archive-digita...
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.
For those of you who are just learning that name from this lawsuit, here's his wikipedia page:
https://en.wikipedia.org/wiki/Brewster_Kahle
Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws.
We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle.
So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism.
So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas.
If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done.
So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist.
That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done.
But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".
What might have made him a hero is having been smarter about how he went about this book/library project, and he's blown it. And he has now put the entire IA at risk by doing this stupid book/library thing under the same company.
The fact that he lost, and the plaintiffs affirmatively won on Summary Judgement [0] is huge. It shows Kahle/IA NEVER HAD A CASE from the outset.
Summary Judgement means, based on the undisputed material facts and the law, there is no purpose to a trial, and a proper judgement on the case can be made immediately. "Summary judgment is a pretrial motion that promptly resolves legal actions where the parties have no genuine issues with any material fact. The court produces a judgment for one party against the opposing party without needing a full trial." IA may appeal to SCOTUS, but I see no scenario SCOTUS even looks at the case, nevermind takes it and rules in IA's favor.
For years it's been an obviously unnecessary risk for IA. While it may have been a noble cause, it was absolutely a risk, and should have been done under a separate corporate/legal entity.
Instead, he recklessly barged ahead with no regard for likely consequences. The result is that the entire Internet Archive and Wayback Machine is now at real risk of being lost when the court awards damages.
I've seen far too many smart people doing stupid things, but this is one of the most glaring examples. I hope IA survives.
Why aren't others doing it? Because IA existed and no one wants to do redundant things. Today, they just stopped being redundant, so I hope others will rapidly invest the resources to make different Internet Archives...
[1] https://www.findlaw.com/litigation/filing-a-lawsuit/what-is-...
Lots of libraries do free digital lending of ebooks in a legal way and have done so for a long time
I'm very confused by this statement and I don't understand if it comes from you not working in library and information science, your definition of an archives or your opinion on what an acquisition policy should be, but lots of national archives have and continue to archive the Web.
https://brendan-47137.medium.com/debunking-the-brewster-kahl...
If IA had won, IA would be hailed as a cultural hero. They hit and they missed. Claiming Brewster Kahle is against "the people who work very hard to bring new books into being" is unfair. The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years, the copyright will probably be extended again.
The top comment on HN a week after their launch of the EL is critical [0], right at the moment when HN would be most expected to rally to their defense. By the time the lawsuit was actually starting to take shape most commenters had become very concerned for the fate of the IA [1]. This is on a forum that reliably champions freedom of information, but most of us knew even at the time that what they'd done was extremely unlikely to pass muster.
The IA was never going to be hailed as a cultural hero because they stood no chance, and they are too valuable for other, unrelated reasons to make themselves a martyr. This never should have happened under the same legal entity as the web archive.
[0] https://news.ycombinator.com/item?id=22731472
[1] https://news.ycombinator.com/item?id=23485182
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.
To push the wallstreetbets analogy further, a hedge fund that bets on something risky and loses big is fine. But you don't just "hit and miss" at a large scale when you are in charge of trillions in retirement/pension funds. It just should not be part of the thought process in the first place, it's the completely wrong mindset.
Not that there's no room for activism , but it should be delegated to someone else or by supporting another group or organization that could take the fight and have much less to lose.
You need a little bit more wisdom to change extremely entrenched laws. Simply breaking them has close to zero probability of changing them. This was evident from the start.
IA already had some disputes with rights owners for some of the content they archived. They should have progressively resolved these disputes until some pattern emerged where either mass archival of old movies, TV shows, news videos, video games, and similar was broadly acceptable, or broadly not. IA could have won this. I think most publishers were unwilling to burn money on enforcing their copyrights with products they no longer exploit.
Now the org may not exist to see that day.
This is ends justifying the means logic. (More accurately, it is showboating.)
Let’s concede for the sake of argument what they wanted to do was unarguably good. It’s still an astronomical long shot. And one with real costs, financial and institutional.
IA incurred those costs, and in the process not only destroyed the library but set a harmful precedent. They threw out the good in pursuit of perfection.
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Note that copyright lasting 50 years after the author's death was already in Berne Convention from 1886. Some (but not all) of these extensions in US were just adaptation of older weaker US copyright to international conventions.
You could have made a fairer point if the IA only disregarded the copyright of authors who are dead or something like 10 years past publication.
The the name of this nonsense, the Internet Archive damaged itself, perhaps mortally and damaged the concepts it stands for. Archives should be run by boards of archivists and librarians, not reckless activists.
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Copyright law may suck. The IA's actions were an extremely silly way to fight it, really didn't help anybody, and it was obvious from the get go that it wouldn't.
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 download full video games for the switch that are still being actively sold [1]. The same applies to a lot of movies and TV shows, available via torrents no less.
Before someone gives me a lecture about data harboring laws and fair use, I know that it is technically on the copyright holder to issue takedown requests for infringing material, but even still, I think they'd be smart to be a bit proactive about this. If I know that the Internet Archive is an easy place to get pirated material, then I'm quite confident that their staff does as well. If there's even one employee email that implies that they know about pirated content but didn't bother taking it down, then I think that's grounds for a lawsuit (though I'm not a lawyer).
Much as I respect him for founding IA, I think that Kahle needs to be replaced as a leader.
[1] I'm not going to link it here because I'm not sure HN's policy on potentially legally dubious material, but it is not hard to find.
People who frequent libraries think CDL at retail prices is just; others that it is an end-run around publisher's rights.
But libraries pay so much for their limited-lending copies! Why isn't there any support for regional or global libraries? Publishers are like a syndicate but there's no opposing union so they run ramshod over the proletariat. Are libraries not good things? Beacons of culture and so forth? The IA clearly can't afford to fund CDL at library rates, but can't it get funding! Why won't the government step in and decree a federal library? Depending on geography, you're local library is probably already funded at the state and federal level.
I am not seeing that anywhere. I see a file called “My Nintendo Switch games collection” and it is a big jpeg photo of a bookshelf. Is this what you mean?
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 notifies them.
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.
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-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."
(emphasis added)
"IA maintains that it delivers each Work “only to one already entitled to view [it]”―i.e., the one person who would be entitled to check out the physical copy of each Work. But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library. 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658 (“We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.”)."
It's not about CDL because it's very specifically focused on Open Library's specific implementation, Open Library. Nobody is suing Hoopla or OverDrive. The courts are openly acknowledging that by explicitly spelling out why this ruling only applies to Open Library and not to other well-known CDLs.
And the Emergency Library was just the concrete pressure pipe that broke the camel's back. Publishers and author's unions had reportedly been trying to negotiate with IA about OL all along, and EL was just the move that prompted them to stop playing nice and take it to court. The rulings don't need to focus on EL, though, because a ruling against the aspects of OL that are under contention would automatically apply to EL as well.
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The reality is that everyone thinks “I would have sold bitcoin at $70k if I bought it for $100” but anyone who would have sold would have sold at $1k. The only guys who actually ride it from $100 to $70k are the true believer types. And you’re not going to convince them that $70k is the top.
It’s the same way. He was always going to push the limit. That’s how we got IA.
Nah, I’m running an ArchiveTeam warrior. I’m team Brewster. Let’s go!
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).
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Yes, actually, I do. But the public benefits of libraries outweigh the harm it does to authors. But, the fact that I can buy a book once, and pass it between 50 friends to read feels unfair to the author who effectively makes no money off of the work.
"[IA] have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society" - to what extent has this had any effect on those services on WayBack machine? Does it not still collect and load a webpage today just as it did in 2015?
The downside loss was low here, the upside was worth it, even if the approach was unlikely to every work. It could lead to change in 100 years. That's important.
I'm not sure one should be so certain on this. I don't intend to suggestion it is an intentional action, but I do find that libraries are inherently at odds with how most of copyright otherwise works. There is a tension in this relationship and one that is likely pushing towards libraries becoming illegal for new forms of media. A common sentiment I've seen, expressed for different reasons by different people, is that if libraries didn't already exist, they would be illegal to create.
This is part of the larger role copyright plays in society, from being used as a legal hammer to handle AI issues (as in, when all you have is a hammer, everything looks like a nail) to newer digital media being sold in a way where one can't easily share what they own (if you even can call it owning at this point).
Basically, there is an established practice for lending printed books: the library buys a book and lends it to patrons without permission from the copyright owner.
However, publishers believe that digital books are different from physical books and established practice doesn't apply to them; they believe that lending should be made at publishers' terms, to be specific:
- only "academic libraries" (chosen by publishers) may lend digital books
- they may lend them only to the members, for example, only students of the university, not to random people
- library must buy a special "library license", which might have arbitrary price and arbitrary terms
- the license has a limited term: sometimes it is 1-2 years, sometimes it is 26 lendings, after which the library must purchase a new license
- the library must use publishers-approved DRM which might not work on some devices
To enforce these rules publishers use DRM that prevents anyone from buying a digital book and lending it to other person (which was possible with digital books). So, in publishers view new technology means new rules and new opportunities.
The IA found a workaround: they bought physical books, scanned them and lent those digital copies instead of a physical book, provided that only one user can read the same book at the same time. They acted like a library but using remote access to a digital copy. The lender might read the book on IA's website enforcing the terms of use or download a DRM-protected PDF.
The lawsuit is about whether IA actions are legal or not (i.e. if digital books may be lent like physical books). Given that in future there will be less and less physical books, if publishers win, it will mean that libraries will not be able to lend contemporary books at the same terms and costs they lent physical books.
There are several complications: dubious partnerships by IA with libraries to increase the number of lent simultaneously copies; dubious decision to remove limits during COVID pandemic. However, there are facts that play in IA favour: there are precedents when making digital copies was considered legal (by Google Books), and there are a 17 US Code 108 [2] and 109 [3], which allows some exemptions from copyright for libraries and archives.
[1] https://www.documentcloud.org/documents/23723923-hachette-v-...
[2] https://www.law.cornell.edu/uscode/text/17/108
[3] https://www.law.cornell.edu/uscode/text/17/109
If IA would like five dozen copies to be morally equivalent to one copy as long as they ask each person who received one to swear they deleted it before IA makes another, they can call their congressman and ask them to propose a copyright law amendment. They did not do this, and instead just knowingly violated the law repeatedly. Wailing about how libraries won't exist in the future is silly, because it just takes reforming the law to fix this, but IA seemed to be under the impression that as long as the rules would one day be amended, they could act as though they're already amended that way today.
Who's this asshole who hates books and authors and the law?
Evidently, reasonable people differ in opinion on this topic. It's fine that you disagree with what Kahle has done, so do I, but I would have found your comment more persuasive and interesting if you didn't reduce your opposition to a caricature.
the ever expanding rights that nobody voted for and that are passed by and for lobbies?
Not only do they ignore robots.txt, they ignored all emails sent to info@archive.org from the actual domain in question which I owned, with a link to a URL on the domain asking them to remove it.
I can understand wanting to preserve some large website's article that is of public interest but this is just malicious / dangerous. It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content.
It took you two years and a lawyer to literally fill out a form?
If anything, the IA removes too much content and should only do the minimum required by law (and fight it even there where possible).
CDL: Controlled Digital Lending
NEL: National Emergency Lending.
>one man's seemingly fanatical conviction against the law
Reviewing the large number of amicus briefs on the Archive's side, from the get-go through appeals, refutes the idea this was a solitary crusade: https://blog.archive.org/2023/12/29/friend-of-the-court-brie...
Those supporting IA's position range from the American Library Association (the world's oldest & largest library advocacy group), to individual libraries of all kinds, to expert IP law academics, to public-interest advocates like the Center for Democracy & Technology or Public Knowledge, to fellow open-culture organizations like Wikipedia, Creative Commons, & Project Gutenberg. Also: lots of book authors, including those with commercial success & titles inside the IA's lending program.
The IA was in the leading position, sure – but taking the arrows for a very large group of like-minded organizations sharing a stance against copyright maximalism. Personalizing it as one man's radical crusade is odd.
>asked to stop… tried to open a dialogue
Saying no to the copyright maximalists, even through their claims of absolute control & threatened or actual lawsuits, has been essential in establishing the actual settled law around copyright.
What sort of 'dialogue' can be had when the sides have incompatible views of the law: one believing in a permissionless right to do an exact something (supported by reasoning & precedent) and another asserting an absolute right to prohibit that exact same thing (supported by other reasoning & precedent)? Each side needs to enact their beliefs then resolve it in the courts.
HathiTrust - a major consortium of university libraries – was the named defendent in an earlier lawsuit by some of the same copyrightholder interests with regard to Google Books scanning. (It's also an ally of the Internet Archive in this fight.) Should HathiTrust have rolled over when "asked to stop" scanning by rightsholders? Absolutely not: they won in court & on appeal.
If Sony hadn't appealed the Betamax decision to the Supreme Court, VCRs & everything since that let people record their own copies of TV programs could've been "illegal". A mere 'dialogue' with TV broadcasters or moviemaker trade associations couldn't have done anything: the issues had to be ruled on by legal authorities.
>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.
I agree that the overheated rhetoric from both the plaintiffs (about giant but never-proven sdamages) and defendants (about how central these principles are to IA) may have created that impression in some coverage – but the idea this was ever existential for IA, in legal costs or potential damages, is pure paranoid fantasy.
As a non-profit, the IA files detailed form 990s with the IRS showing income & expenses. I challenge you to find any hint of legal costs changing other operations in the years since the lawsuit was filed (2020) and appeals launched.
I suspect, but have no inside info, that much of the costs were borne by other advocacy & legal organizations/donors that wanted to pursue a ruling on these particular essential issues. That is: this battle was fought with resources targeted for this program and these legal principles, not resources diverted from other programs.
As part of private settlement with the plaintiffs in 2023 – not any court monetary judgment against it – the IA agreed to make some undisclosed payment but ALSO had permission from the plaintiffs for IA to continue to pursue appeals (like the one just ruled-upon) on the issues important to IA, at no risk of further damages.
That's hardly the "scorched earth" plaintiff behavior implied by some hyped coverage imagining an IA bankruptcy, or other threats to its ability "to survive".
This was always a dispute on some copyright principles; it will be a loss to the public if IA's vision of format-shifted digital lending is ultimately ruled illegal, but no impact to IA's other long-established programs.
Finally: this may not be the final chapter & ruling on these issues. Sony had to appeal all the way to the Supreme Court before getting the Betamax ruling in 1984. Google had to appeal all the way to the Supreme Court before getting a ruling that API reimplementation could be fair use in 2021. I don't know if IA will judge it as worthwhile to appeal. But they might! And before those other historic final appeals, the preceding judgements seemed pretty definitive and bleak for the ultimate victors.
Maybe it shouldn’t. There is value in asking if there is a better home for those projects.
Oh no, won't someone think of the rights of the poor poor publishers :(((
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One can argue that the Internet Archive would be effectively useless if they strictly followed copyright law.
Calling it now. The number will be so big that they will take ownership of IA and privately "license" that data to openai and similar.
I mean... they did just scan a load of in-copyright books and then let anyone download them with no restrictions. What did they think was going to happen?
I think you have to be particularly extreme and naive to think that would have been ok, legally or morally.
"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 books. In our view, the fair use analysis would not be substantially different if limited to IA’s CDL of the books it owns, and the fourth factor still would count against fair use. So we decline IA’s invitation to narrow the scope of our holding or of the district court’s injunction."
In other words, even if one purchases a print copy of the book, fair use would not allow them to lend a digital copy of the book to one person at a time. Why the court concludes that that "would not be substantially different" is unclear from just this footnote.
It's because of two primary points made elsewhere in the ruling.
1. Copyright law tolerates lending by libraries in the case of print books because those books eventually wear out. Digital copies, on the other hand, arguably do not wear out. Therefore, the court does not think that what is tolerated for print books should be tolerated for digital books. It does not address the fact that print books can be lent out hundreds or maybe even thousands of times before needing to be replaced, whereas some publishers are treating e-books as "wearing out" after about 25 reads, at which point the library has to renew its license.
2. Publishers have established a very profitable licensing arrangement with libraries for e-books, and CDL undercuts it. One could argue that if CDL had been an accepted fair-use exception from the beginning of digital lending, such a market would have never taken off, in which case the "CDL undercuts the market" argument would not have had the same weight. But here we are, like it or not, in a time when most of the major publishers have established these licensing terms, and so the court observes that a market exists that can be undercut.
I don't think this is entirely accurate when it comes to copyright law. The law extends back centuries and digital books only appeared within the last couple of decades. The ability to lend a book (by libraries or any owner) without committing copyright infringement is much more closely-related to the first sale doctrine (which has been around for at least a century in U.S. law in one form or another) than it is to a book's durability or lack thereof. Recall what the opinion says about the underlying rationale for copyright law: let the authors have a period of monopoly so they'll have an incentive to keep writing. If the first sale doctrine doesn't defeat that rationale in the case of print books then the same logic should apply to digital copies; it's the first sale that matters, not how many times the owner of an individual book can then lend that book to someone else. Granted, as in your second point, publishers can limit lending of digital books through license agreements or other digital rights management, but at that point you're in the realm of contract law, not just copyright.
Honestly, I think that IA's ambivalence towards the use of their website for outright piracy might lead to their collapse, and that's a shame. The Archive can be a really wonderful tool, though I'm not sure that its current management really knows what they're doing.
Publishers position is that digital books are different from physical; you have no right to re-sell or lend it without publisher's permission. This is what this case is about.
The lawsuits started when they removed that restriction during covid.
That the implications of this idea have the “wrong” winners and losers is a separate matter.
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First, the IA should move to a more favorable copyright jurisdiction to preserve the collection.
Second, there's no point fighting the copyright lobby, especially so in the US. We need to build an alternative access to knowledge that bypasses the copyright/ownership of knowledge paradigm.
Right, that's why it will get worse. Unfortunately, we're still only in skirmish territory. And it's a battle we have to win.
Ask the team at The Pirate Bay or Kim Dotcom how that worked out for them.
The US WILL pursue it's copyright laws to any country on earth.
Like for instance, Australia's project Gutenberg tends to get things a few years before the US version because of local legal differences.
If I can think this then I'd reckon I'm not alone, the thought must be high on the agenda for MS and like.
The implications are enormous.
That's what shadow libraries are doing, as are many other older & less prominent models of information distribution. These projects should be proliferated & promoted to challenge the dominant propaganda that people can only do things the U.S. government says they can.
Which jurisdiction do you have in mind? Russia? China? There are few others that don't have similar copyright laws to the US or won't bend quickly to US demands.
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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...
no sort of viewing, home or otherwise, is restricted in any way by the copyright law. you will not find the phrase 'home viewing license' in any us case law about copyright. ('residential viewing license' does occur in cases about 47 usc §605, which is not a copyright law.) you just made it up without having any idea what you're talking about. you should not mislead people about your expertise in that way; it is a bad thing to do
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benley did get a pony for a day though had to provide his own fodder. There's a photo of him and Vint Cerf with the pony floating around.
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