23 ms·

Internet Archive responds to publishers’ lawsuit

356 points by edward 6y ago

cosmodisk 6y ago
Many years ago,when I was a teenager with no money to buy all the nice magazines I wanted, I came with an idea. I thought how nice it'd be to buy up all the issues of all the magazines, upload online and then charge a small few to read them. Then I started thinking of the logistics of such thing, including how would the publishers react.I came to a conclusion that any attempt of this sort would be crushed by the publishers...
- treeman79 6y ago
  Manga community ran this way for many years. Issue would release in Japan. And an hours that would be perfectly re-drawn and translated into English. With a lot better quality than the official publishers will do months later. Now they’re officially free online quickly. You pay if you want older ones.
- 52-6F-62 6y ago
  I mean, if you were just stealing content from actively-running magazines then yeah. But if you pitched the idea to publishers with a cut-in then it may have sold. Archival efforts are a huge lift—especially from print to digital. But current issues have operated that way on several platforms over time. Ultimately Apple bought up the last major effort in that space (Next Issue/Texture) and merged/turned it into Apple News+. There are others, like Pressreader, though: https://www.pressreader.com https://www.pressreader.com (edit: changed to plain url) One of the magazines I work for took it upon themselves to render an archive of their print and digital issues dating back to the early 1900s. I think they plan to charge a fee at some point to access them, but they are currently available for free: https://archive.macleans.ca/issues https://archive.macleans.ca/issues ("Browse All Issues" to see the range of decades available) It was a very large undertaking—so based on the knowledge of that experience [in which I was not involved], there is probably a business in building a collective, or at least brand-specific, archive for magazines. I'm sure some businesses exist in that space already—but something more user-friendly and centralized access would probably have its base.
MattGaiser 6y ago
The problem is that the Internet Archive demonstrated that controlled digital lending can allow a library to become indistinguishable from Pirate Bay overnight. They blew up an uneasy peace and cannot exactly be trusted to adhere to the practice without changing it as they decide.
- ggrrhh_ta 6y ago
  In my opinion, they showed that it didn't become Pirate Bay, but rather reasonably and responsibly took over, during a period of emergency, on the duty of their physical counterparts (closed to the public). It rather strengthened its mission.
  - MattGaiser 6y ago
    Had they taken partner library inventory from confirmed closed libraries and allowed that number of books to be lent, then sure. Instead they allowed unlimited borrowing. They fundamentally broke the "controlled" part.
    - xhkkffbf 6y ago
      Exactly. It's almost insulting to everyone to call it "controlled". It's like _1984_'s newspeak.
    - acqq 6y ago
      AFAIK the borrowing was still limited in time and with the DRM protection. Whoever "took" the book at that time lost the access to it long ago already, thanks to the DRM protection remaining and working. Edit: answering "I'm not sure I'd call what they're doing "DRM". Read the court case: explicitly Adobe DRM technology for encrypted e-book formats is mentioned, implemented in different e-book readers and used in this case.
      - kevindong 6y ago
        If there's no limits on how many copies they would hand out and no limit on how often you can check out the same book, then for practical purposes it's not time limited.
arthurofbabylon 6y ago
We all know how powerful capitalism is, but our culture still doesn't grasp its bounds. I think this is most true with knowledge systems: journalism, library-lending, education. I'm not sure what the best system structure is for these areas, but I'm confident that in these cases, profit-seeking feedback mechanisms don't align with society's goals. The goals (in my opinion) should be heightened knowledge integrity, increased accessibility, resilient persistence, and ease of applicability. So – with these goals in mind, what is the right system structure for library lending in the digital age? For journalism? For education? I'm sincerely unsure and super curious.
- syshum 6y ago
  Capitalism is not the issue here. Copyright Regulations are market shifting regulations that means normal market feedbacks do not exist given we as a society through our laws grant a monopoly to the creator in ways not seen in other markets This artificial scarcity is what causes the appearance that "capitalism fails" for knowledge systems when in reality it government regulations that are the source of the failure. The continued extension of copyright over the years has increased this failure and created a huge whole in public domain. Copyright law is now an enemy of knowledge expatiation which is contrary to its stated goal
  - Jasper_ 6y ago
    How do you propose to adjust capitalism's core reliance on scarcity and supply and demand (supply of a digital good is infinite!) I have never seen any serious proposals, hence we're trying to uphold capitalistic structures by enforcing artificial scarcity, to build a marketplace where capitalism's assumptions hold. I don't think you can tear down copyright and artificial scarcity without tearing down capitalism.
    - syshum 6y ago
      I dont think you can eliminate the artificial scarcity, but I do support returning to the Orginal Copyright terms of the US 14 Years to the content creator, and 1 extension that has to be applied for by the creator personally (not a business, not an estate) For Corporations the copyright term is 14 years, for an individual creator it would be at most 28 years. none of this 100 years+ copyright monopoly we see today under current law
HugThem 6y ago
Have they been sued over digital lending in general or because they lent out more digital copies then they owned physically? Either way, I think that there is no legal "digital lending". What makes people buy things is that they can not get them for free easily. Copyright is there to benefit the author. It puts a certain burdon on the consumer: They have to buy a copy. Or - if they want to breach the law - they have to find someone who illegally makes a copy for them. "Digital lending" would allow the 3rd party to legally make a copy to the consumer. Because bits are not lended. They are copied. That is not how copyright sets the balance between author and consumer. I would be surprised if the IA wins this.
- jawns 6y ago
  Hi, I'm an author, so I have a vested interest in copyright being respected. Are you familiar with the first-sale doctrine? https://en.wikipedia.org/wiki/First-sale_doctrine https://en.wikipedia.org/wiki/First-sale_doctrine It basically says that once a person buys a creative work, they can do whatever they want with it, including selling it or lending it. Controlled Digital Lending is a system that basically says, "Let's make the first-sale doctrine for digital books work the same as it does for physical books." So, a library purchases a digital copy of a work. Then it lends out that copy, and until that copy is returned, it does not lend out any other copies of the work (even though it is technically possible to do so). Note that while the library patron gets to borrow and read the work for free, the library has already paid for the work, so it is not as if this erodes copyright any more than it does for print books.
  - chadash 6y ago
    > So, a library purchases a digital copy of a work. Then it lends out that copy, and until that copy is returned, it does not lend out any other copies of the work (even though it is technically possible to do so). The issue is that IA decided to forgo the rule that they won't lend out copies of the book until it gets returned and instead decided to lend out as many copies as they wanted at a time.
    - jawns 6y ago
jawns 6y ago
I am an author, and several of my books were published by one of the publishers who is a party to the suit. Unlike these publishers, however, I support Controlled Digital Lending. I think it's closely analogous to print lending in every way that matters. It strikes the right balance between respecting the first-sale doctrine and respecting authors' copyrights. It allows lending of creative works to proceed into the 21st century under essentially the same terms that it existed prior to the digital age. To the extent that the publishers are arguing against the legality of CDL, I disagree with them. I hope the courts recognize it is already legal, or even better, I hope Congress explicitly declares it legal. Yet I think it's worth emphasizing that the Internet Archive engaged in uncontrolled digital lending through their national emergency program. By being willing to lend out more copies than they owned, they were clearly engaging in copyright infringement, and I found their justification for it wholly unconvincing. So, while I support IA insofar as it engages in Controlled Digital Lending, I oppose IA's shift toward Uncontrolled Digital Lending, and their willingness to do so, under flimsy justification, makes me concerned that they cannot be trusted to handle even CDL responsibly.
- throwawaygh 6y ago
  > the Internet Archive engaged in uncontrolled digital lending I thought they partnered with library systems to only lend out 1:1 physical copies that weren't on publicly accessible shelves? If so, that definitely seems like it should be kosher. But it's possible I am completely misinformed here. Agreed that completely uncontrolled digital lending is literally just piracy. If advocates want that, they need to reform copyright law if for no other reason than so that publishers and authors know the rules of the game they're playing...
  - preinheimer 6y ago
    I think under normal circumstances there's some sort of 1:1 physical copy to loaned one. But under the "emergency library" they loaned out as many books as were requested.
  - misnome 6y ago
    As I understand it, they said “there are probably copies out there unused, we are using those”, but had no agreement and only “partnered” later, after the announcement, as a post-hoc justification.
ilamont 6y ago
> These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons. This form of digital book burning is unprecedented and unfairly disadvantages people with print disabilities. Book burning? It is not a politically motivated campaign to destroy books, or a witch hunt to root out deviant social or religious teachings. It's a dispute over copyright law. I believe that Ray Bradbury, were he alive today, would have likely come out against this characterization. The Science Fiction and Fantasy Writers of America (SFWA), which Bradbury was long associated with, has been critical of the IA's actions from the beginning (https://www.sfwa.org/2020/04/08/infringement-alert-national-emergency-library/ https://www.sfwa.org/2020/04/08/infringement-alert-national-...). In addition, I thought the justification for expanding controlled digital lending was around COVID-19, not rights for people who have low vision. Was this issue a central part of the the IA's reasoning before the lawsuit?
- mgr86 6y ago
  > justification for expanding controlled digital lending was around COVID-19, not rights for people who have low vision. -- My memory tells me it was both. With libraries closed they were not able to provide adequate access to those with disabilities.
  - jjcon 6y ago
    Again nearly all library systems already have a digital lending system in place
    - DominikD 6y ago
      Having system in place (90% of libraries do) doesn't mean all or even most of the books they have physical copies of are available in digital form. The question isn't whether libraries can lend digital books but if they are able to lend the same ones IA did. Just because 90% of people are capable of running doesn't mean that they can run as fast as Usain Bolt.
    - mcguire 6y ago
colincooke 6y ago
This response confuses me a little bit. Although in their response the Internet Archive refers to the lawsuit attempting to stop controlled digital lending, I believe the lawsuit instead is looking at uncontrolled digital lending (the Emergency Library from IA) [1]. If there hasn't been scope creep on this lawsuit I feel this is a disengenous representation of the publishers argument. The publisher's argument was specifically that the form of IA's CDL (basically uncontrolled digital lending) is against copyright, an argument I personally agree with (in the legal sense). [1] https://news.ycombinator.com/item?id=23379775 https://news.ycombinator.com/item?id=23379775
- gamblor956 6y ago
  Generally when a party deliberately misrepresents an opponent's position like this, it's because their own position is legally fucked and they're trying to move the goalposts so that they have a chance. Alternatively, they've already assessed their chances at zero and are trying to lay the groundwork for an appeal. Reading through their response (the actual filing, not their press release about it), it appears that the IA has admitted to a number of claims [1] that would constitute copyright infringement, so it appears they're hoping either for a miracle or to take this to a higher court and try to get some sort of ruling that would dramatically alter copyright law in their favor. Neither is very likely to happen. [1] For example, they admit that their own founder and executive director stated that the IA didn't seek consent (i.e., a license) from IP owners prior to launching the uncontrolled lending program that is the National Emergency Library. With that admission alone, the judge could grant summary judgment for the publishers on at least a few claims prior to reaching the discovery stage.
  - anonymousab 6y ago
    > the IA has admitted to a number of claims [1] that would constitute copyright infringement, so it appears they're hoping either for a miracle or to take this to a higher court and try to get some sort of ruling that would dramatically alter copyright law in their favor. Neither is very likely to happen When they made the announcement I was very curious as to how they thought it would be legal or how they thought they would get away with it if it was not. I'm quite surprised that they simply didn't have any realistic plan for this outcome. It's a shame, because I think their core cause is a good one, and now they're likely facing a mortal blow for something transiently related.
chx 6y ago
> This is how Internet Archive’s lending library works, and has for more than nine years. Wow. And why do you think noone sued for nine years?? Maybe because as long as the IA behaved like that it was legal but they changed how they work because of COVID and became a pirate site overnight. They basically said "we do not know how many physical copies are languishing in closed libraries so we will just pretend there are infinite copies". That is of course nonsense.
robotbikes 6y ago
I found their library to be very handy when my step-son forgot a book he needed for a high-school English class at his Dads. We tried to navigate Amazon to buy it but his account wasn't able to make purchase and then I found it available on here and we could check out a copy of it and he got his school work done. This was before they removed check out restrictions for the pandemic. There are lots of students who don't have credit cards or whose parents can't afford to buy ebooks or risk connecting their cards to their kids accounts where it could result in unplanned purchases. I honestly don't think authors will lose much money from people checking out books. Those who can and do pay for ebooks are unlikely to quit purchasing them but there are a lot of people without kindles & credit cards where something like this might be their only way to access the book.
- judge2020 6y ago
  Amazon has a thing called Amazon Household. Your solution would have been to create a 'teen' login for them and buy the books they wanted on your adult account, which they would then have access to via Kindle. https://www.amazon.com/gp/help/customer/display.html?nodeId=GXULX24SE2RD7EXS https://www.amazon.com/gp/help/customer/display.html?nodeId=... > Adults can share digital content (eBooks, apps, and games) with children.
bdg 6y ago
Okay, so what? It will just land on a TOR node connected to IPFS.
- verytrivial 6y ago
  What fraction people in the world have ANY IDEA what that sentence means? And how does that square with the Internet Archive's mission?
chadash 6y ago
Does anyone have a legal theory under which IA can potentially defend itself here? I am no legal expert, but I just can't fathom an avenue where they win this case. The merits of copyright law can be debated, but given that the law exists, what legal framework can IA use to fight this, or is their losing the case a forgone conclusion?
- crazygringo 6y ago
  I haven't heard of anyone suggesting any legal strategy by which they can win. I've really been scratching my head trying to figure out what their overall strategy with this has been.
  - nickff 6y ago
    It looks like they're trying to shame the publishers, perhaps in the hopes that 'cancel culture' will benefit IA.
    - CM30 6y ago
      For better or worse, that probably is a more and more plausible strategy to deal with lawsuits and threats nowadays. If you can get enough people to vocally support you over the other side, paint the parties suing you as bullies going after the little guy, make it a giant media controversy that gets hundreds of newspaper articles and YouTube videos etc, then a large number of corporations will probably back down/drop the lawsuit. After all, reputation is king, and companies fear a PR disaster more than just about anything. Whether that'd actually work for the IA on the other hand... well that's a whole different story.
  - a1369209993 6y ago
    > I've really been scratching my head trying to figure out what their overall strategy with this has been. They're doing what's right, with - it appears - insufficient concern for pragmatism.
    - paulcole 6y ago
DominikD 6y ago
What IA did was counterproductive to the concept of CDL. I think most people agree on that. But what I find disheartening if that the majority voice is that what needs protecting more is not people's access to the information but publisher's ability to profit off of it. On the one hand this is a very HN response so I shouldn't be surprised. On the other I simply find it sad.
- Causality1 6y ago
  Would it be nice if we did away with book scarcity and paid all authors exclusively through Patreon? Sure, that'd be great, but we can't force authors into that scheme against their will. Peoples' access to that information was and is not in danger. If you can't afford a book you can take the tiny legal risk of pirating it yourself. Lending books is cute and handy but the important part of the IA is, well, the archive of the internet. People are upset because they put the archive in existential danger by pulling an incredibly stupid bit of legal activism. It's like protesting the illegality of raw milk by feeding it to your immunocompromised child.
  - nybble41 6y ago
    > Sure, that'd be great, but we can't force authors into that scheme against their will. We certainly can't force authors to continue publishing, but we wouldn't be forcing them into anything by revoking some or all of the privilege referred to as copyright. That would simply be a long-overdue recognition that we no longer consider this experiment in social engineering to be in the best interest of society.
    - nickff 6y ago
      Getting rid of copyright for content may lead to extensive DRM for books; I'm not sure whether you're in favor or against, but HN seems to hate DRM.
      - nybble41 6y ago
        I certainly don't care for DRM, but I recognize publishers' right to use it—so long as it isn't backed up by force of law. We can't force anyone to make content available in any particular format, after all. However, most of the effectiveness of DRM (such as it is, which isn't much) comes from the fact that you can't legally talk about how to circumvent it or distribute tools for doing so. Obviously that needs to go; it's an even more blatant violation of freedom of speech than copyright itself. From a purely technical perspective DRM on books is particularly futile. If the page is visible to a human reader then it can be imaged (perhaps with an external camera) and OCR'd at least as easily as scanning a physical book. DRM for audio files is in a similar position—not quite lossless, but very close. With video there is a bit of quality loss from the capture and re-encoding process, but nothing too serious. It's a bit more effective with interactive content such as games but still far from unassailable.
stochastastic 6y ago
While I understand why authors may not like the IA’s emergency program, I find the language to describe it confusing. A number of comments here use the term “uncontrolled digital lending”, and it took me a bit of reading to discover that the files still had DRM and would “expire“ after a set time. The phrase paints a picture of the IA sending unprotected PDFs to anyone and everyone. I think it is confusing at best. Authors, I don’t think the confusion does you any favors. I was more sympathetic to your concerns before I read your comments.
- deleted 6y ago
  [deleted]
- jjcon 6y ago
  They distributed an unlimited number of copies - not backed by anything physical. That being the case, there is effectively no time limit on how long you can borrow something (you can just re-check it out). That is just straight up piracy. They lent copies they did not own. They tried to justify it by saying libraries were closed but they ignored the fact that more than 90% of libraries already have digital lending programs that went through the due processes and are legal.
  - deleted 6y ago
    [deleted]
  - trewnews 6y ago
    > They distributed an unlimited number of copies - not backed by anything physical. So like money?
    - jjcon 6y ago
      The supply of money is definitely not unlimited... if it is I’d like a few million dollars please.
  - detaro 6y ago
    The effective time limit is the end of the time-limited program.
mcguire 6y ago
"The publishers’ lawsuit does not stop at seeking to end the practice of Controlled Digital Lending. These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons." If nothing else, that should prevent anyone from supporting the publishers.
6510 6y ago
If books were invented today how would publishing work?
ggm 6y ago
I get a bit of a Zhou Enlai "it is to early to say" vibe on this (btw he was actually responding to a different question probably and not the 'what do you think about the french revolution' question but anyway) The sense of it for me is that the fight is really important and I'm glad they are having the fight, sad-but-glad. But, I suspect they are going to be celebrated for a victory MANY YEARS YET TO COME and in the meantime take heinous pain on this one, and functionally lose the battle and the war maybe. Sometimes, the ones who lose the war have history on their side. Germany won in 1871. The reparations they screwed out of france cause massive economic pain when they ran through the economy, and at root laid the seeds of WWI. Did Germany really "win" ? Publishers have the shitty IPR laws on their side. They will probably win. But in destroying the Internet Archive, (god forbid) they will cause us, consumers to visit the "you don't really miss what you've got 'till its gone" and question the whole deal over Kindle IPR, the book to rent, the disappearing books, the books never uplifted, the geo-locked books...
walterbell 6y ago
If IA survives this lawsuit, donors who support web archive preservation may prefer not to have the largest web archive being placed at legal risk by experimental library policy. For this reason, the web archive should be legally firewalled from any library operations, i.e. Archive.org can be separated into two organizations with separate fundraising.
toss1 6y ago
While digital lending is a great idea and has many justifications, the legal risks are clear. What is most troublesome is that no one at IA took appropriate action and implemented a corporate separation so that the digital lending enterprise was legally & financially firewalled from The Internet Archive's core mission. (That is exactly what the corporate structures are for.) Thus, the entire IA mission is now at risk due to this high-risk activity without protection. I hope they can get it sorted If they don't, who will back up the Internet Archive?

356 points by edward 6y ago

Many years ago,when I was a teenager with no money to buy all the nice magazines I wanted, I came with an idea. I thought how nice it'd be to buy up all the issues of all the magazines, upload online and then charge a small few to read them. Then I started thinking of the logistics of such thing, including how would the publishers react.I came to a conclusion that any attempt of this sort would be crushed by the publishers...

treeman79 6y ago
Manga community ran this way for many years. Issue would release in Japan. And an hours that would be perfectly re-drawn and translated into English. With a lot better quality than the official publishers will do months later. Now they’re officially free online quickly. You pay if you want older ones.
52-6F-62 6y ago
I mean, if you were just stealing content from actively-running magazines then yeah. But if you pitched the idea to publishers with a cut-in then it may have sold. Archival efforts are a huge lift—especially from print to digital. But current issues have operated that way on several platforms over time. Ultimately Apple bought up the last major effort in that space (Next Issue/Texture) and merged/turned it into Apple News+. There are others, like Pressreader, though: https://www.pressreader.com https://www.pressreader.com (edit: changed to plain url) One of the magazines I work for took it upon themselves to render an archive of their print and digital issues dating back to the early 1900s. I think they plan to charge a fee at some point to access them, but they are currently available for free: https://archive.macleans.ca/issues https://archive.macleans.ca/issues ("Browse All Issues" to see the range of decades available) It was a very large undertaking—so based on the knowledge of that experience [in which I was not involved], there is probably a business in building a collective, or at least brand-specific, archive for magazines. I'm sure some businesses exist in that space already—but something more user-friendly and centralized access would probably have its base.

MattGaiser 6y ago

The problem is that the Internet Archive demonstrated that controlled digital lending can allow a library to become indistinguishable from Pirate Bay overnight. They blew up an uneasy peace and cannot exactly be trusted to adhere to the practice without changing it as they decide.

ggrrhh_ta 6y ago
In my opinion, they showed that it didn't become Pirate Bay, but rather reasonably and responsibly took over, during a period of emergency, on the duty of their physical counterparts (closed to the public). It rather strengthened its mission.
- MattGaiser 6y ago
  Had they taken partner library inventory from confirmed closed libraries and allowed that number of books to be lent, then sure. Instead they allowed unlimited borrowing. They fundamentally broke the "controlled" part.
  - xhkkffbf 6y ago
    Exactly. It's almost insulting to everyone to call it "controlled". It's like _1984_'s newspeak.
  - acqq 6y ago
    AFAIK the borrowing was still limited in time and with the DRM protection. Whoever "took" the book at that time lost the access to it long ago already, thanks to the DRM protection remaining and working. Edit: answering "I'm not sure I'd call what they're doing "DRM". Read the court case: explicitly Adobe DRM technology for encrypted e-book formats is mentioned, implemented in different e-book readers and used in this case.
    - kevindong 6y ago
      If there's no limits on how many copies they would hand out and no limit on how often you can check out the same book, then for practical purposes it's not time limited.

arthurofbabylon 6y ago

We all know how powerful capitalism is, but our culture still doesn't grasp its bounds. I think this is most true with knowledge systems: journalism, library-lending, education. I'm not sure what the best system structure is for these areas, but I'm confident that in these cases, profit-seeking feedback mechanisms don't align with society's goals. The goals (in my opinion) should be heightened knowledge integrity, increased accessibility, resilient persistence, and ease of applicability. So – with these goals in mind, what is the right system structure for library lending in the digital age? For journalism? For education? I'm sincerely unsure and super curious.

syshum 6y ago
Capitalism is not the issue here. Copyright Regulations are market shifting regulations that means normal market feedbacks do not exist given we as a society through our laws grant a monopoly to the creator in ways not seen in other markets This artificial scarcity is what causes the appearance that "capitalism fails" for knowledge systems when in reality it government regulations that are the source of the failure. The continued extension of copyright over the years has increased this failure and created a huge whole in public domain. Copyright law is now an enemy of knowledge expatiation which is contrary to its stated goal
- Jasper_ 6y ago
  How do you propose to adjust capitalism's core reliance on scarcity and supply and demand (supply of a digital good is infinite!) I have never seen any serious proposals, hence we're trying to uphold capitalistic structures by enforcing artificial scarcity, to build a marketplace where capitalism's assumptions hold. I don't think you can tear down copyright and artificial scarcity without tearing down capitalism.
  - syshum 6y ago
    I dont think you can eliminate the artificial scarcity, but I do support returning to the Orginal Copyright terms of the US 14 Years to the content creator, and 1 extension that has to be applied for by the creator personally (not a business, not an estate) For Corporations the copyright term is 14 years, for an individual creator it would be at most 28 years. none of this 100 years+ copyright monopoly we see today under current law

HugThem 6y ago

Have they been sued over digital lending in general or because they lent out more digital copies then they owned physically? Either way, I think that there is no legal "digital lending". What makes people buy things is that they can not get them for free easily. Copyright is there to benefit the author. It puts a certain burdon on the consumer: They have to buy a copy. Or - if they want to breach the law - they have to find someone who illegally makes a copy for them. "Digital lending" would allow the 3rd party to legally make a copy to the consumer. Because bits are not lended. They are copied. That is not how copyright sets the balance between author and consumer. I would be surprised if the IA wins this.

jawns 6y ago
Hi, I'm an author, so I have a vested interest in copyright being respected. Are you familiar with the first-sale doctrine? https://en.wikipedia.org/wiki/First-sale_doctrine https://en.wikipedia.org/wiki/First-sale_doctrine It basically says that once a person buys a creative work, they can do whatever they want with it, including selling it or lending it. Controlled Digital Lending is a system that basically says, "Let's make the first-sale doctrine for digital books work the same as it does for physical books." So, a library purchases a digital copy of a work. Then it lends out that copy, and until that copy is returned, it does not lend out any other copies of the work (even though it is technically possible to do so). Note that while the library patron gets to borrow and read the work for free, the library has already paid for the work, so it is not as if this erodes copyright any more than it does for print books.
- chadash 6y ago
  > So, a library purchases a digital copy of a work. Then it lends out that copy, and until that copy is returned, it does not lend out any other copies of the work (even though it is technically possible to do so). The issue is that IA decided to forgo the rule that they won't lend out copies of the book until it gets returned and instead decided to lend out as many copies as they wanted at a time.
  - jawns 6y ago

jawns 6y ago

I am an author, and several of my books were published by one of the publishers who is a party to the suit. Unlike these publishers, however, I support Controlled Digital Lending. I think it's closely analogous to print lending in every way that matters. It strikes the right balance between respecting the first-sale doctrine and respecting authors' copyrights. It allows lending of creative works to proceed into the 21st century under essentially the same terms that it existed prior to the digital age. To the extent that the publishers are arguing against the legality of CDL, I disagree with them. I hope the courts recognize it is already legal, or even better, I hope Congress explicitly declares it legal. Yet I think it's worth emphasizing that the Internet Archive engaged in uncontrolled digital lending through their national emergency program. By being willing to lend out more copies than they owned, they were clearly engaging in copyright infringement, and I found their justification for it wholly unconvincing. So, while I support IA insofar as it engages in Controlled Digital Lending, I oppose IA's shift toward Uncontrolled Digital Lending, and their willingness to do so, under flimsy justification, makes me concerned that they cannot be trusted to handle even CDL responsibly.

throwawaygh 6y ago
> the Internet Archive engaged in uncontrolled digital lending I thought they partnered with library systems to only lend out 1:1 physical copies that weren't on publicly accessible shelves? If so, that definitely seems like it should be kosher. But it's possible I am completely misinformed here. Agreed that completely uncontrolled digital lending is literally just piracy. If advocates want that, they need to reform copyright law if for no other reason than so that publishers and authors know the rules of the game they're playing...
- preinheimer 6y ago
  I think under normal circumstances there's some sort of 1:1 physical copy to loaned one. But under the "emergency library" they loaned out as many books as were requested.
- misnome 6y ago
  As I understand it, they said “there are probably copies out there unused, we are using those”, but had no agreement and only “partnered” later, after the announcement, as a post-hoc justification.

ilamont 6y ago

> These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons. This form of digital book burning is unprecedented and unfairly disadvantages people with print disabilities. Book burning? It is not a politically motivated campaign to destroy books, or a witch hunt to root out deviant social or religious teachings. It's a dispute over copyright law. I believe that Ray Bradbury, were he alive today, would have likely come out against this characterization. The Science Fiction and Fantasy Writers of America (SFWA), which Bradbury was long associated with, has been critical of the IA's actions from the beginning (https://www.sfwa.org/2020/04/08/infringement-alert-national-emergency-library/ https://www.sfwa.org/2020/04/08/infringement-alert-national-...). In addition, I thought the justification for expanding controlled digital lending was around COVID-19, not rights for people who have low vision. Was this issue a central part of the the IA's reasoning before the lawsuit?

mgr86 6y ago
> justification for expanding controlled digital lending was around COVID-19, not rights for people who have low vision. -- My memory tells me it was both. With libraries closed they were not able to provide adequate access to those with disabilities.
- jjcon 6y ago
  Again nearly all library systems already have a digital lending system in place
  - DominikD 6y ago
    Having system in place (90% of libraries do) doesn't mean all or even most of the books they have physical copies of are available in digital form. The question isn't whether libraries can lend digital books but if they are able to lend the same ones IA did. Just because 90% of people are capable of running doesn't mean that they can run as fast as Usain Bolt.
  - mcguire 6y ago

colincooke 6y ago

This response confuses me a little bit. Although in their response the Internet Archive refers to the lawsuit attempting to stop controlled digital lending, I believe the lawsuit instead is looking at uncontrolled digital lending (the Emergency Library from IA) [1]. If there hasn't been scope creep on this lawsuit I feel this is a disengenous representation of the publishers argument. The publisher's argument was specifically that the form of IA's CDL (basically uncontrolled digital lending) is against copyright, an argument I personally agree with (in the legal sense). [1] https://news.ycombinator.com/item?id=23379775 https://news.ycombinator.com/item?id=23379775

gamblor956 6y ago
Generally when a party deliberately misrepresents an opponent's position like this, it's because their own position is legally fucked and they're trying to move the goalposts so that they have a chance. Alternatively, they've already assessed their chances at zero and are trying to lay the groundwork for an appeal. Reading through their response (the actual filing, not their press release about it), it appears that the IA has admitted to a number of claims [1] that would constitute copyright infringement, so it appears they're hoping either for a miracle or to take this to a higher court and try to get some sort of ruling that would dramatically alter copyright law in their favor. Neither is very likely to happen. [1] For example, they admit that their own founder and executive director stated that the IA didn't seek consent (i.e., a license) from IP owners prior to launching the uncontrolled lending program that is the National Emergency Library. With that admission alone, the judge could grant summary judgment for the publishers on at least a few claims prior to reaching the discovery stage.
- anonymousab 6y ago
  > the IA has admitted to a number of claims [1] that would constitute copyright infringement, so it appears they're hoping either for a miracle or to take this to a higher court and try to get some sort of ruling that would dramatically alter copyright law in their favor. Neither is very likely to happen When they made the announcement I was very curious as to how they thought it would be legal or how they thought they would get away with it if it was not. I'm quite surprised that they simply didn't have any realistic plan for this outcome. It's a shame, because I think their core cause is a good one, and now they're likely facing a mortal blow for something transiently related.

chx 6y ago

> This is how Internet Archive’s lending library works, and has for more than nine years. Wow. And why do you think noone sued for nine years?? Maybe because as long as the IA behaved like that it was legal but they changed how they work because of COVID and became a pirate site overnight. They basically said "we do not know how many physical copies are languishing in closed libraries so we will just pretend there are infinite copies". That is of course nonsense.

robotbikes 6y ago

I found their library to be very handy when my step-son forgot a book he needed for a high-school English class at his Dads. We tried to navigate Amazon to buy it but his account wasn't able to make purchase and then I found it available on here and we could check out a copy of it and he got his school work done. This was before they removed check out restrictions for the pandemic. There are lots of students who don't have credit cards or whose parents can't afford to buy ebooks or risk connecting their cards to their kids accounts where it could result in unplanned purchases. I honestly don't think authors will lose much money from people checking out books. Those who can and do pay for ebooks are unlikely to quit purchasing them but there are a lot of people without kindles & credit cards where something like this might be their only way to access the book.

judge2020 6y ago
Amazon has a thing called Amazon Household. Your solution would have been to create a 'teen' login for them and buy the books they wanted on your adult account, which they would then have access to via Kindle. https://www.amazon.com/gp/help/customer/display.html?nodeId=GXULX24SE2RD7EXS https://www.amazon.com/gp/help/customer/display.html?nodeId=... > Adults can share digital content (eBooks, apps, and games) with children.

bdg 6y ago

Okay, so what? It will just land on a TOR node connected to IPFS.

verytrivial 6y ago
What fraction people in the world have ANY IDEA what that sentence means? And how does that square with the Internet Archive's mission?

chadash 6y ago

Does anyone have a legal theory under which IA can potentially defend itself here? I am no legal expert, but I just can't fathom an avenue where they win this case. The merits of copyright law can be debated, but given that the law exists, what legal framework can IA use to fight this, or is their losing the case a forgone conclusion?

crazygringo 6y ago
I haven't heard of anyone suggesting any legal strategy by which they can win. I've really been scratching my head trying to figure out what their overall strategy with this has been.
- nickff 6y ago
  It looks like they're trying to shame the publishers, perhaps in the hopes that 'cancel culture' will benefit IA.
  - CM30 6y ago
    For better or worse, that probably is a more and more plausible strategy to deal with lawsuits and threats nowadays. If you can get enough people to vocally support you over the other side, paint the parties suing you as bullies going after the little guy, make it a giant media controversy that gets hundreds of newspaper articles and YouTube videos etc, then a large number of corporations will probably back down/drop the lawsuit. After all, reputation is king, and companies fear a PR disaster more than just about anything. Whether that'd actually work for the IA on the other hand... well that's a whole different story.
- a1369209993 6y ago
  > I've really been scratching my head trying to figure out what their overall strategy with this has been. They're doing what's right, with - it appears - insufficient concern for pragmatism.
  - paulcole 6y ago

DominikD 6y ago

What IA did was counterproductive to the concept of CDL. I think most people agree on that. But what I find disheartening if that the majority voice is that what needs protecting more is not people's access to the information but publisher's ability to profit off of it. On the one hand this is a very HN response so I shouldn't be surprised. On the other I simply find it sad.

Causality1 6y ago
Would it be nice if we did away with book scarcity and paid all authors exclusively through Patreon? Sure, that'd be great, but we can't force authors into that scheme against their will. Peoples' access to that information was and is not in danger. If you can't afford a book you can take the tiny legal risk of pirating it yourself. Lending books is cute and handy but the important part of the IA is, well, the archive of the internet. People are upset because they put the archive in existential danger by pulling an incredibly stupid bit of legal activism. It's like protesting the illegality of raw milk by feeding it to your immunocompromised child.
- nybble41 6y ago
  > Sure, that'd be great, but we can't force authors into that scheme against their will. We certainly can't force authors to continue publishing, but we wouldn't be forcing them into anything by revoking some or all of the privilege referred to as copyright. That would simply be a long-overdue recognition that we no longer consider this experiment in social engineering to be in the best interest of society.
  - nickff 6y ago
    Getting rid of copyright for content may lead to extensive DRM for books; I'm not sure whether you're in favor or against, but HN seems to hate DRM.
    - nybble41 6y ago
      I certainly don't care for DRM, but I recognize publishers' right to use it—so long as it isn't backed up by force of law. We can't force anyone to make content available in any particular format, after all. However, most of the effectiveness of DRM (such as it is, which isn't much) comes from the fact that you can't legally talk about how to circumvent it or distribute tools for doing so. Obviously that needs to go; it's an even more blatant violation of freedom of speech than copyright itself. From a purely technical perspective DRM on books is particularly futile. If the page is visible to a human reader then it can be imaged (perhaps with an external camera) and OCR'd at least as easily as scanning a physical book. DRM for audio files is in a similar position—not quite lossless, but very close. With video there is a bit of quality loss from the capture and re-encoding process, but nothing too serious. It's a bit more effective with interactive content such as games but still far from unassailable.

stochastastic 6y ago

While I understand why authors may not like the IA’s emergency program, I find the language to describe it confusing. A number of comments here use the term “uncontrolled digital lending”, and it took me a bit of reading to discover that the files still had DRM and would “expire“ after a set time. The phrase paints a picture of the IA sending unprotected PDFs to anyone and everyone. I think it is confusing at best. Authors, I don’t think the confusion does you any favors. I was more sympathetic to your concerns before I read your comments.

deleted 6y ago
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jjcon 6y ago
They distributed an unlimited number of copies - not backed by anything physical. That being the case, there is effectively no time limit on how long you can borrow something (you can just re-check it out). That is just straight up piracy. They lent copies they did not own. They tried to justify it by saying libraries were closed but they ignored the fact that more than 90% of libraries already have digital lending programs that went through the due processes and are legal.
- deleted 6y ago
  [deleted]
- trewnews 6y ago
  > They distributed an unlimited number of copies - not backed by anything physical. So like money?
  - jjcon 6y ago
    The supply of money is definitely not unlimited... if it is I’d like a few million dollars please.
- detaro 6y ago
  The effective time limit is the end of the time-limited program.

mcguire 6y ago

"The publishers’ lawsuit does not stop at seeking to end the practice of Controlled Digital Lending. These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons." If nothing else, that should prevent anyone from supporting the publishers.

6510 6y ago

If books were invented today how would publishing work?

ggm 6y ago

I get a bit of a Zhou Enlai "it is to early to say" vibe on this (btw he was actually responding to a different question probably and not the 'what do you think about the french revolution' question but anyway) The sense of it for me is that the fight is really important and I'm glad they are having the fight, sad-but-glad. But, I suspect they are going to be celebrated for a victory MANY YEARS YET TO COME and in the meantime take heinous pain on this one, and functionally lose the battle and the war maybe. Sometimes, the ones who lose the war have history on their side. Germany won in 1871. The reparations they screwed out of france cause massive economic pain when they ran through the economy, and at root laid the seeds of WWI. Did Germany really "win" ? Publishers have the shitty IPR laws on their side. They will probably win. But in destroying the Internet Archive, (god forbid) they will cause us, consumers to visit the "you don't really miss what you've got 'till its gone" and question the whole deal over Kindle IPR, the book to rent, the disappearing books, the books never uplifted, the geo-locked books...

walterbell 6y ago

If IA survives this lawsuit, donors who support web archive preservation may prefer not to have the largest web archive being placed at legal risk by experimental library policy. For this reason, the web archive should be legally firewalled from any library operations, i.e. Archive.org can be separated into two organizations with separate fundraising.

toss1 6y ago

While digital lending is a great idea and has many justifications, the legal risks are clear. What is most troublesome is that no one at IA took appropriate action and implemented a corporate separation so that the digital lending enterprise was legally & financially firewalled from The Internet Archive's core mission. (That is exactly what the corporate structures are for.) Thus, the entire IA mission is now at risk due to this high-risk activity without protection. I hope they can get it sorted If they don't, who will back up the Internet Archive?