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> As a non-profit library the plaintiffs effectively have to show that the Internet Archive acted in bad faith[1] in order to receive statutory damages. >> The

> As a non-profit library the plaintiffs effectively have to show that the Internet Archive acted in bad faith[1] in order to receive statutory damages. >> The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107 Specifically, the plaintiffs have to show that uncontrolled digital lending does not constitute fair use. That doesn't seem very difficult to me.

extra88 6y ago
IA clearly believed this was fair use and I’m sure can demonstrate reasonable grounds for that belief. Even if the plaintiff’s lawyers can make a stronger argument for it not being fair use (they probably can), that doesn’t negate the existence of IA’s grounds. Here’s a story about weak but reasonable grounds: Say I think it rained last night because I glanced out the window in the morning and saw the street was wet. You say it didn’t because you got up earlier than me, saw everything was dry, and you saw a street cleaner come through, making the street wet. Clearly you’re right but before I had this information, I had reasonable grounds for my belief.
- aspenmayer 6y ago
  This seems prone to a regression fallacy maybe? Of course it rained; I was up before either of them and saw it dry before they had woken. I don’t know if this regression has a name, but it seems familiar. https://en.wikipedia.org/wiki/Regression_fallacy https://en.wikipedia.org/wiki/Regression_fallacy
hnick 6y ago
If I'm an educator and I want to select parts of a work to present in class, usually I'd want to view the whole work and select the pieces from that. That's how it'd work when using a traditional library. Is this basically what they are suggesting here? They are supplying the copies, and it's up to the users whether or not they break the law from there?
- nordsieck 6y ago
  > If I'm an educator and I want to select parts of a work to present in class, usually I'd want to view the whole work and select the pieces from that. That's how it'd work when using a traditional library. > Is this basically what they are suggesting here? They are supplying the copies, and it's up to the users whether or not they break the law from there? Copyright doesn't work like that - the party who makes the copy is the one who does the infringing. If you want to use a traditional library analogy, what IA did was basically photocopy a bunch of books and put them on the shelf for patrons to check out.
  - zackees 6y ago
    If true, this is just downright evil. Shame on IA.
  - hnick 6y ago
    > Copyright doesn't work like that - the party who makes the copy is the one who does the infringing. Yes I know. It definitely makes sense in most cases. If I'm handing out books in a park then people should be able to assume they aren't breaking the law by taking a copy. Maybe the law needs an update for this concept of a repository. Where they can keep a catalogue of everything regardless of copyright but the requester bears the clearly marked and advertised burden of satisfying the copyright rules once they ask.
    - nordsieck 6y ago
      > Maybe the law needs an update for this concept of a repository. Where they can keep a catalogue of everything regardless of copyright but the requester bears the clearly marked and advertised burden of satisfying the copyright rules once they ask. I don't understand why this would be a good idea. Perhaps you could elaborate? We already have libraries that operate just fine under the current set of rules. I think controlled digital lending is probably a good idea and something that should get more legal support, however.
      - 6y ago
chongli 6y ago
No, the plaintiffs have to show that the IA acted in bad faith. They may be able to show that IA’s actions do not constitute fair use, but to obtain a statutory damage award they need to go much further since the law presumes librarians, teachers, and so on are acting in good faith when they carry out their duties.
- nordsieck 6y ago
  > No, the plaintiffs have to show that the IA acted in bad faith. "Bad faith" has a specific legal meaning that does not apply here. In order to obtain statutory damages, they need to show that IA did not have reasonable grounds to believe that unlimited digital lending is fair use.

extra88 6y ago

IA clearly believed this was fair use and I’m sure can demonstrate reasonable grounds for that belief. Even if the plaintiff’s lawyers can make a stronger argument for it not being fair use (they probably can), that doesn’t negate the existence of IA’s grounds. Here’s a story about weak but reasonable grounds: Say I think it rained last night because I glanced out the window in the morning and saw the street was wet. You say it didn’t because you got up earlier than me, saw everything was dry, and you saw a street cleaner come through, making the street wet. Clearly you’re right but before I had this information, I had reasonable grounds for my belief.

aspenmayer 6y ago
This seems prone to a regression fallacy maybe? Of course it rained; I was up before either of them and saw it dry before they had woken. I don’t know if this regression has a name, but it seems familiar. https://en.wikipedia.org/wiki/Regression_fallacy https://en.wikipedia.org/wiki/Regression_fallacy

hnick 6y ago

If I'm an educator and I want to select parts of a work to present in class, usually I'd want to view the whole work and select the pieces from that. That's how it'd work when using a traditional library. Is this basically what they are suggesting here? They are supplying the copies, and it's up to the users whether or not they break the law from there?

nordsieck 6y ago
> If I'm an educator and I want to select parts of a work to present in class, usually I'd want to view the whole work and select the pieces from that. That's how it'd work when using a traditional library. > Is this basically what they are suggesting here? They are supplying the copies, and it's up to the users whether or not they break the law from there? Copyright doesn't work like that - the party who makes the copy is the one who does the infringing. If you want to use a traditional library analogy, what IA did was basically photocopy a bunch of books and put them on the shelf for patrons to check out.
- zackees 6y ago
  If true, this is just downright evil. Shame on IA.
- hnick 6y ago
  > Copyright doesn't work like that - the party who makes the copy is the one who does the infringing. Yes I know. It definitely makes sense in most cases. If I'm handing out books in a park then people should be able to assume they aren't breaking the law by taking a copy. Maybe the law needs an update for this concept of a repository. Where they can keep a catalogue of everything regardless of copyright but the requester bears the clearly marked and advertised burden of satisfying the copyright rules once they ask.
  - nordsieck 6y ago
    > Maybe the law needs an update for this concept of a repository. Where they can keep a catalogue of everything regardless of copyright but the requester bears the clearly marked and advertised burden of satisfying the copyright rules once they ask. I don't understand why this would be a good idea. Perhaps you could elaborate? We already have libraries that operate just fine under the current set of rules. I think controlled digital lending is probably a good idea and something that should get more legal support, however.
    - 6y ago

chongli 6y ago

No, the plaintiffs have to show that the IA acted in bad faith. They may be able to show that IA’s actions do not constitute fair use, but to obtain a statutory damage award they need to go much further since the law presumes librarians, teachers, and so on are acting in good faith when they carry out their duties.

nordsieck 6y ago
> No, the plaintiffs have to show that the IA acted in bad faith. "Bad faith" has a specific legal meaning that does not apply here. In order to obtain statutory damages, they need to show that IA did not have reasonable grounds to believe that unlimited digital lending is fair use.