Appeals court seems lost on how Internet Archive harms publishers(arstechnica.com)
arstechnica.com
Appeals court seems lost on how Internet Archive harms publishers
https://arstechnica.com/tech-policy/2024/06/appeals-court-seems-lost-on-how-internet-archive-harms-publishers/
38 comments
The internet archive could do with one of these new AI companies funding it, since their entire business is built on there being information out there somewhere.
Though more likely they each individually download the entire internet archive and then seek to burn it to the ground to stop others following, in short sighted chase the current quarterly return fashion.
Though more likely they each individually download the entire internet archive and then seek to burn it to the ground to stop others following, in short sighted chase the current quarterly return fashion.
IA doesn't own their content, so you don't get any legal protection from paying for their content
> IA has argued that because copyright law is intended to provide equal access to knowledge, copyright law is better served by allowing IA's lending than by preventing it.
This seems like the opposite of the intent of copyright? How could the intent of granting an artificial monopoly to one party on disseminating information be to provide equal access to knowledge?
This seems like the opposite of the intent of copyright? How could the intent of granting an artificial monopoly to one party on disseminating information be to provide equal access to knowledge?
US Constitution, Article I, Section 8.
> The Congress shall have Power…
> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; …
Copyright is a means to an end. The end must be to promote the progress of science and useful arts for Congress to have the power to create such monopolies.
> The Congress shall have Power…
> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; …
Copyright is a means to an end. The end must be to promote the progress of science and useful arts for Congress to have the power to create such monopolies.
To me, it seems like someone got confused with patents, where you share your invention with the world, but claim a monopoly on using it.
Even the objective of patients was to disincentivize trade secrets by allowing limited-time monopoly and thereby making knowledge public without destroying the economic incentives.
The whole objective of copyright is to encourage dissemination of knowledge. The idea originally was that by allowing authors some exclusivity over their creations for some years, there would be economic incentives to produce various technical, cultural works. The artificial monopoly is a means to an end, not an end to itself.
This.
There are a few people who might write a book and give it away for free, but if you want professional artists you need to ensure that they can make money by selling copies. In other words, someone like the Internet Archive won't start giving it away for free.
In any case, calling it a "monopoly" is a bit unfair. It's like saying the rape laws give a woman a "monopoly" on her body. No one is stopped from creating their own art, just from plagiarizing others.
There are a few people who might write a book and give it away for free, but if you want professional artists you need to ensure that they can make money by selling copies. In other words, someone like the Internet Archive won't start giving it away for free.
In any case, calling it a "monopoly" is a bit unfair. It's like saying the rape laws give a woman a "monopoly" on her body. No one is stopped from creating their own art, just from plagiarizing others.
It was the original intent before copyright terms got expanded out to insanity. (Ditto for patents).
The notion was that instead of having authors jealously and exclusively guarding their works, they can copyright them and get a period of guaranteed income. After that period lapses, the works enter the public domain which enriches the general public.
That reduces the risk of important works being lost.
Without the copyrights, you could imagine private libraries popping up and works only accessible via strict security.
The notion was that instead of having authors jealously and exclusively guarding their works, they can copyright them and get a period of guaranteed income. After that period lapses, the works enter the public domain which enriches the general public.
That reduces the risk of important works being lost.
Without the copyrights, you could imagine private libraries popping up and works only accessible via strict security.
> Without the copyrights, you could imagine private libraries popping up and works only accessible via strict security.
I don't really have to imagine it. That seems exactly like every company that has an internal wiki or something similar.
Noted on the original point though. That just seems like such a foreign problem from todays environment with how readily people share information. I think it is more due to ease than the right to an artificial monopoly that people share so much information now though.
I don't really have to imagine it. That seems exactly like every company that has an internal wiki or something similar.
Noted on the original point though. That just seems like such a foreign problem from todays environment with how readily people share information. I think it is more due to ease than the right to an artificial monopoly that people share so much information now though.
> That just seems like such a foreign problem from todays environment with how readily people share information. I think it is more due to ease than the right to an artificial monopoly that people share so much information now though.
Totally agree. It solved a very different problem than what we have today and even runs counter to the original intent because of how much the terms have been expanded.
Now, we have things like scientific publishers who jealously lock up papers behind expensive paywalls and use copyright as a kludge to keep those papers from ever seeing the general public. What's worse, because everything is digital it's entirely feasible that these papers will all be lost to time if one of these companies goes out of business.
It really is high time we revisit what copyrights are doing vs what they were intended to do. I'm not opposed to keeping them around, but at very least we should change the time they apply to something far more reasonable. Heck, even when copyright is applicable should be bound to whether or not the work has been submitted to a national archiving service. Not submitted to the archiving service, no copyright applies.
Totally agree. It solved a very different problem than what we have today and even runs counter to the original intent because of how much the terms have been expanded.
Now, we have things like scientific publishers who jealously lock up papers behind expensive paywalls and use copyright as a kludge to keep those papers from ever seeing the general public. What's worse, because everything is digital it's entirely feasible that these papers will all be lost to time if one of these companies goes out of business.
It really is high time we revisit what copyrights are doing vs what they were intended to do. I'm not opposed to keeping them around, but at very least we should change the time they apply to something far more reasonable. Heck, even when copyright is applicable should be bound to whether or not the work has been submitted to a national archiving service. Not submitted to the archiving service, no copyright applies.
Because by providing a temporary monopoly, it allows one a better guarantee to recoup costs, making the investment worthwhile in the first place, thus incentivizing people to spend time and effort creating works in the first place. Then, once the work has been created and costs recouped, it reverts to the public domain where everyone can access it. At least that's how pro-copyright parties explain it, not sure that ever was actually historically accurate.
Do they have to show harm? If the goal is just to shut down the digital lending I'd have thought that was a fairly straightforward consequence of the copyright.
I would imagine harm is needed to get damages. Are they asking for damages?
I'd love to see the publishers take some kind of responsibility for making books available to underserved communities, but as I understand it the law is kind of weak of making people be responsible.
I would imagine harm is needed to get damages. Are they asking for damages?
I'd love to see the publishers take some kind of responsibility for making books available to underserved communities, but as I understand it the law is kind of weak of making people be responsible.
The article makes it sound like digital lending is one at a time, so it falls squarely under how libraries are authorized to work. Thus, it's not at all straightforward that digital lending violates copyright law.
'One at a time' is not how 'libraries are authorized to work'. There are specific additional permissions granted to libraries[0]. They have nothing to do with making and distributing arbitrarily many copies of a work, regardless of whether the previous recipient claims to have deleted it before the next person receives it - libraries are permitted to make one copy, or in some cases three - and the suit is primarily about the period where IA enforced no such restriction in the first place.
It is very straightforward that making and distributing copies is infringement without specific permission to do so or some specific legal carveout. Characterizing making many copies as sort of the same thing as having one copy which you move around may be how you treat it morally, but it certainly isn't how the law works.
[0]: https://www.copyright.gov/title17/92chap1.html#108
It is very straightforward that making and distributing copies is infringement without specific permission to do so or some specific legal carveout. Characterizing making many copies as sort of the same thing as having one copy which you move around may be how you treat it morally, but it certainly isn't how the law works.
[0]: https://www.copyright.gov/title17/92chap1.html#108
The argument (or at least the main argument) IA is making is that CDL is fair use, so they're analogizing it to the "one at a time" nature inherent to lending of physical books. Of course actual physical lending doesn't involve making a copy and is more of a "first sale doctrine" type situation, so this is just an analogy.
This is why there was so much discussion around how this affects the ebook market: that's part of the fair use analysis, and often the most important part.
I've generally been of the opinion that CDL doesn't stand much of a chance of flying as fair use, but there's a non-ridiculous argument for it.
The period of uncontrolled lending during the pandemic is another matter that's less defensible, but the point of this case for the publishers is to kill "normal" CDL.
This is why there was so much discussion around how this affects the ebook market: that's part of the fair use analysis, and often the most important part.
I've generally been of the opinion that CDL doesn't stand much of a chance of flying as fair use, but there's a non-ridiculous argument for it.
The period of uncontrolled lending during the pandemic is another matter that's less defensible, but the point of this case for the publishers is to kill "normal" CDL.
Kind of weird to remove a bunch of books from a library that has controlled digital lending as punishment for a period of time where they removed those controls. If there was damage during the time they removed the controls, then that's worth talking about. But they effectively work like any other library today (they buy a copy, digitize it, and then lend out the digital copy one at a time just like the physical work), so I don't see how removing books really helps anybody.
I think the misunderstanding is whether or not IA is making many copies or not. My impression is that they are not.
I think the misunderstanding is whether or not IA is making many copies or not. My impression is that they are not.
I do not know how you would end up with that impression, because for each person who downloads a copy, the IA has made a copy.
Regarding the removal of books, if they were licensed to the IA in a way that allows for 'digital lending', and the IA then violates that license agreement, then the IA no longer has the license and cannot anymore do 'digital lending'. And if they weren't licensed to the IA in such a way, then they're making and distributing copies without a license to do so, which is copyright infringement.
Regarding the removal of books, if they were licensed to the IA in a way that allows for 'digital lending', and the IA then violates that license agreement, then the IA no longer has the license and cannot anymore do 'digital lending'. And if they weren't licensed to the IA in such a way, then they're making and distributing copies without a license to do so, which is copyright infringement.
We're using different defintions of copy, and that's not an interesting discussion.
For the rest, we're having different conversations. I'm not concerned with the law as much as I'm concerned about what's good for society in this case.
For the rest, we're having different conversations. I'm not concerned with the law as much as I'm concerned about what's good for society in this case.
If libraries weren't older than the copyright system, they would be banned as well nowadays with the extreme laws in place.
Very accurate. We now have this magic technology that can duplicate books we had no problem lending for free when we were physically constrained. Now that we’ve advanced, we still use archaic constructs to artificially limit information.
It’s a sad state.
It’s a sad state.
"One conversation centered on the ever accelerating progress of technology and changes in the mode of human life, which gives the appearance of approaching some essential singularity in the history of the race beyond which human affairs, as we know them, could not continue"
1958 Stanislaw Ulam wrote (in reference to a conversation with John von Neumann)
1958 Stanislaw Ulam wrote (in reference to a conversation with John von Neumann)
We have a magic technology that duplicates books, but we don't yet have one that writes books. At least not ones worth reading.
Maybe LLMs will eventually make the profession of writing obsolete. We'd make books too cheap to meter.
Maybe LLMs will eventually make the profession of writing obsolete. We'd make books too cheap to meter.
The very idea of a library would be mocked as a ridiculous utopian fantasy.
It could also be argued dead tree libraries harm publishers... But that doesn't mean it's a good idea to ban libraries, corporate interests should not beat societal interests when they are not aligned.
Not just "could be", indeed it has been argued.
This is a good read, but section II is most relevant here: https://dash.harvard.edu/bitstream/handle/1/37374618/The%20P...
This is a good read, but section II is most relevant here: https://dash.harvard.edu/bitstream/handle/1/37374618/The%20P...
IIRC you have to show harm to take anything to court. I recall cases on federal regulation that failed to move forward because a state AG failed to prove harm.
It makes sense when you think about it, otherwise courts would be flooded with lawsuits "because I don't like it".
It makes sense when you think about it, otherwise courts would be flooded with lawsuits "because I don't like it".
Internet Archive is claiming their lending program is fair use, and deciding whether something is fair use involves showing the effect (or lack thereof) of the use on the market for the work. A use that doesn't hurt sales is much more likely to be held as fair use.
There are requirements to show harm for other purposes like standing to sue in the first place, but that's not really a relevant issue here. Damages would of course be another, but copyright law has statutory damages that probably easily eclipse any actual harm here, and at any rate the parties already made a (confidential) agreement on damages after Internet Archive lost in the district court.
There are requirements to show harm for other purposes like standing to sue in the first place, but that's not really a relevant issue here. Damages would of course be another, but copyright law has statutory damages that probably easily eclipse any actual harm here, and at any rate the parties already made a (confidential) agreement on damages after Internet Archive lost in the district court.
Interesting. IANAL but a fundamental part of lawsuits is demonstrating how you were harmed.
I think IA is in the right here, and the court should rule in favor of expanding lending. Otherwise, it just pushes everyone over to Library Genesis.
https://www.libgen.is/
https://www.libgen.is/
The court should rule in favor of what the law says, which is that making and distributing copies without the permission of the author is copyright infringement. If you think IA is morally in the right despite violating the law, the place for that to be fixed is in the legislature, not in the courts.
That would be the neatest solution in theory, but is somewhat hampered by the practical reality of how legislation is written and passed. Part of the reason https://en.wikipedia.org/wiki/Jury_nullification is a thing.
There is no causal connection at all between the two, insofar as the former even refers to anything specific.
I never saw IA on the same level as libgen, which is just straight piracy
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At the same time, I can't help but be saddened by the defenses that the Internet Archive is using, which all seem to lean heavily on the idea of artificially limiting digital information in order to simulate the limitations of physical books. It's so frustrating that we've created an essentially post-scarcity system, where goods can be infinitely shared at almost zero cost without ever running into supply issues, and yet, we are forced to fit this world into the straightjacket of scarcity and property rights, instead of using it to benefit and empower everyone.
Especially since it's just fundamentally absurd; it's extremely difficult to actually make digital information, especially on the internet, actually function like a scarce rivalrous good that you can have property rights to. That's why piracy is such an issue, and fighting piracy will simply require more and more surveillance and corporate control of our computers and our communications until there's nothing left at all of the decentralized, post-scarcity, free-as-in-freedom potential of computers and the internet, because as long as an ounce of freedom remains, then information will slip through the fingers of corporations and the state-like sand, information wants to be free, dammit, and the more we try to deny it, the worse things get. This is no slippery slope argument either. I think the logic for why this progression would happen, the forcing function that will ensure this is pretty clear: if your goal is to eliminate piracy then any freedom on the internet and on someone's computer is a threat to that goal because information is infinitely copyable and redistributable and so the pursuit of that goal will inherently and necessarily always tend toward the complete elimination of software freedom in the long run.