3 ms·

A lot of the comments claim that publishers could collect $150k per work in statutory damages. However, that usually only works if the book was registered timel

A lot of the comments claim that publishers could collect $150k per work in statutory damages. However, that usually only works if the book was registered timely with the USCO. I don't know the rate among book authors, but most photographers don't register, so they don't qualify. If the IA was clever to only choose books without registration, then the maximum they can be trialed for is the financial damages that publishers can prove. Given that everyone is trying to save money nowadays, it's very hard to convincingly argue that everyone would have bought the book if there had been a waiting list for renting it. I also see the possibility that the IA is just trolling publishers. Maybe they did keep track of the numbers internally and never lent out to more people than they had licenses available through their partners. In that case, the publishers would incur large legal costs only to later be told by the court that nothing illegal had happened. EDIT: There's also the claim by the IA that the average user only looks at the book for 30 minutes. That, in turn, would mean that what the publishers call "borrowing" here is more akin to me browsing an in-person library without actually checking out anything. So there's a good chance that 2-3 copies of each book are enough to make it difficult to prove this illegal, meaning maybe this is clever trolling after all. https://blog.archive.org/2020/04/07/the-national-emergency-library-who-needs-it-who-reads-it-lessons-from-the-first-two-weeks/ https://blog.archive.org/2020/04/07/the-national-emergency-l...

Nemo_bis 6y ago
The lawsuit is about 127 books which have a copyright registration, listed in the attachment: https://archive.org/download/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.1.pdf https://archive.org/download/gov.uscourts.nysd.537900/gov.us... The publishers have already proposed an alternative to statutory damages: > Alternatively, ordering Internet Archive to render a full and complete accounting to Plaintiffs of Internet Archive’s profits, gains, advantages, or the value of business opportunities received from the foregoing acts of infringement of the Works and entering judgment for Plaintiffs against Internet Archive for all damages suffered by Plaintiffs and for any profits or gain by Internet Archive attributable to the infringements alleged above of Plaintiffs’ copyrights in amounts to be determined at trial; https://archive.org/download/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.0.pdf https://archive.org/download/gov.uscourts.nysd.537900/gov.us... This would probably be a very long discovery process, like ACS and Elsevier vs. ResearchGate: https://archive.org/details/gov.uscourts.mdd.433643 https://archive.org/details/gov.uscourts.mdd.433643
- fxtentacle 6y ago
  Agree, this can potentially take a long time and a lot of money to go to court. That's why I am considering the possibility that the Internet Archive is effectively trolling them by doing everything legally but talking about it in a way that upsets publishers. BTW, thank you for the link to the attachment. Some books, like RE0000172597 The Magician's Nephew will likely be too old for statutory damages. Others, like TX0005757057 The Five Dysfunctions of a Team: a Leadership Fable were not registered timely and will likely be blocked from statutory damages due to that. But TX0008865827 The Man Who Solved the Market for example is registered timely, so that one would qualify for statutory damages, if they can prove that this book was willfully infringed. But the last one - i.e. the only one in my 3 examples that could get statutory damages - looks like it was uploaded by a contributor and the preview page was only viewed a mere 621 times... So that could be a DMCA safe harbor defense, that IA simply didn't notice before that this unpopular contributor-uploaded book wasn't legal. https://archive.org/details/manwhosolvedmark0000zuck/ https://archive.org/details/manwhosolvedmark0000zuck/ BTW, it looks like the IA has now disabled the group pages for suing publishers, which might gently nudge viewers towards other books, potentially driving sales away to their competition.
  - Nemo_bis 6y ago
    622 times is on the high end! The average is less than 50 and the median I'd guess less than 10. But that scan was uploaded by the Internet Archive itself, only the physical book was donated by a prominent Internet Archive employee. I wonder if the publishers selected it out of spite for him, or even to keep the door open to including him personally in the suit (that would be nasty). Why do you say C. S. Lewis is too old for statutory damages? Do you think the Internet Archive can claim it looked like it could be in the "last 20 years" phase (<https://archive.org/details/last20> https://archive.org/details/last20>)? I don't know... The publishers will probably claim the Internet Archive should know better, but at the same time they claim it doesn't understand a thing about copyright: > IA erroneously decided that they were public domain works based on elementary misunderstandings of copyright law. As for harming sales of books by making those publishers less visible, it will be interesting to see, but it's hard to make predictions. Just to be sure, publishers in their complaint write that IA's lending both increases and decreases sales at the same time: > the traffic that IA drives to Better World Books [by having copies of the books] results in more book sales but: > IA competes directly with Publishers’ works in all formats (including, without limitation, print and digital) and market segments (including, without limitation, commercial, library, and school). Indeed the complaint is mostly focused on purely hypothetical damages based on speculative predictions like: > Consumers begin to view works as cheap and become increasingly unappreciative of what it takes to produce them and unwilling to pay fair value for them. The problem with all these arguments is that they would apply to libraries lending physical books as well, if they were not established yet. Kyle Courtney makes this point: https://kylecourtney.com/2020/05/18/libraries-do-not-need-permission-fair-use-first-sale-and-the-fallacy-of-permission-culture/ https://kylecourtney.com/2020/05/18/libraries-do-not-need-pe...

Nemo_bis 6y ago

The lawsuit is about 127 books which have a copyright registration, listed in the attachment: https://archive.org/download/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.1.pdf https://archive.org/download/gov.uscourts.nysd.537900/gov.us... The publishers have already proposed an alternative to statutory damages: > Alternatively, ordering Internet Archive to render a full and complete accounting to Plaintiffs of Internet Archive’s profits, gains, advantages, or the value of business opportunities received from the foregoing acts of infringement of the Works and entering judgment for Plaintiffs against Internet Archive for all damages suffered by Plaintiffs and for any profits or gain by Internet Archive attributable to the infringements alleged above of Plaintiffs’ copyrights in amounts to be determined at trial; https://archive.org/download/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.0.pdf https://archive.org/download/gov.uscourts.nysd.537900/gov.us... This would probably be a very long discovery process, like ACS and Elsevier vs. ResearchGate: https://archive.org/details/gov.uscourts.mdd.433643 https://archive.org/details/gov.uscourts.mdd.433643

fxtentacle 6y ago
Agree, this can potentially take a long time and a lot of money to go to court. That's why I am considering the possibility that the Internet Archive is effectively trolling them by doing everything legally but talking about it in a way that upsets publishers. BTW, thank you for the link to the attachment. Some books, like RE0000172597 The Magician's Nephew will likely be too old for statutory damages. Others, like TX0005757057 The Five Dysfunctions of a Team: a Leadership Fable were not registered timely and will likely be blocked from statutory damages due to that. But TX0008865827 The Man Who Solved the Market for example is registered timely, so that one would qualify for statutory damages, if they can prove that this book was willfully infringed. But the last one - i.e. the only one in my 3 examples that could get statutory damages - looks like it was uploaded by a contributor and the preview page was only viewed a mere 621 times... So that could be a DMCA safe harbor defense, that IA simply didn't notice before that this unpopular contributor-uploaded book wasn't legal. https://archive.org/details/manwhosolvedmark0000zuck/ https://archive.org/details/manwhosolvedmark0000zuck/ BTW, it looks like the IA has now disabled the group pages for suing publishers, which might gently nudge viewers towards other books, potentially driving sales away to their competition.
- Nemo_bis 6y ago
  622 times is on the high end! The average is less than 50 and the median I'd guess less than 10. But that scan was uploaded by the Internet Archive itself, only the physical book was donated by a prominent Internet Archive employee. I wonder if the publishers selected it out of spite for him, or even to keep the door open to including him personally in the suit (that would be nasty). Why do you say C. S. Lewis is too old for statutory damages? Do you think the Internet Archive can claim it looked like it could be in the "last 20 years" phase (<https://archive.org/details/last20> https://archive.org/details/last20>)? I don't know... The publishers will probably claim the Internet Archive should know better, but at the same time they claim it doesn't understand a thing about copyright: > IA erroneously decided that they were public domain works based on elementary misunderstandings of copyright law. As for harming sales of books by making those publishers less visible, it will be interesting to see, but it's hard to make predictions. Just to be sure, publishers in their complaint write that IA's lending both increases and decreases sales at the same time: > the traffic that IA drives to Better World Books [by having copies of the books] results in more book sales but: > IA competes directly with Publishers’ works in all formats (including, without limitation, print and digital) and market segments (including, without limitation, commercial, library, and school). Indeed the complaint is mostly focused on purely hypothetical damages based on speculative predictions like: > Consumers begin to view works as cheap and become increasingly unappreciative of what it takes to produce them and unwilling to pay fair value for them. The problem with all these arguments is that they would apply to libraries lending physical books as well, if they were not established yet. Kyle Courtney makes this point: https://kylecourtney.com/2020/05/18/libraries-do-not-need-permission-fair-use-first-sale-and-the-fallacy-of-permission-culture/ https://kylecourtney.com/2020/05/18/libraries-do-not-need-pe...