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which made copyrighted books available for free during the COVID-19 pandemic. The publishers behind the lawsuit alleged that this entailed copyright infringemen

by causi 4y ago

which made copyrighted books available for free during the COVID-19 pandemic. The publishers behind the lawsuit alleged that this entailed copyright infringement. Along with everybody with two brain cells to rub together. We all screamed "Hey, you idiots are going to ruin everything if you act like the pandemic has magically nullified the concept of copyright" and they fucking did it anyway, and now exactly what we said would happen is happening. It's like you found a landmine in your front yard and your buddy said "That landmine shouldn't be there so I'm gonna go step on it" and you told him not to and then had to watch him throw himself onto it while declaring it would be morally wrong for it to blow his stupid ass up. Controlled digital lending had a chance of getting off the ground. The IA's Emergency Library's unlimited digital lending burned it to the ground and stomped on the ashes.

Xelynega 4y ago
They're not in court for the emergency library. They're in court for the 1-1 CDL lending they did. I'm tired of seeing this "well IA shouldn't have done the emergency library" line. Do you honestly believe the only reason publishers went after IA is the emergency library? I think this would have happened eventually, so pointing to the emergency library does nothing but tell everyone that you were right all along. They operate in a country where precedent is set in a court of law, how did you expect CDL to "get off the ground" if not challenged in a court of law?
- Mindwipe 4y ago
  > They're not in court for the emergency library. They are in court for the "emergency library". The emergency library is a key part of the case. It's just inevitable that the lawsuit would also hinge on if 1 - 1 CDL is legally permissible and the case will inevitably have to rule on that. And yes, timing wise, and from the letters the publishes sent to the IA, they are explicitly about the "emergency library".
  - thebooktocome 4y ago
    I read the opinion. The emergency library appears once, only insofar as CDL being found not fair use entails that emergency lending was also not fair use. It’s an entirely severable part of the decision. The publishers legally had a case against CDL without it.
  - jrmg 4y ago
    The emergency library is definitely not what the case is about. You can read the decision and it’s hardly mentioned. https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.nysd.53... It might be the case that it prompted publishers to file earlier, but I have a very hard time believing they’d have just let 1:1 digital-for-physical lending slide for ever if it hadn’t happened.
- misnome 4y ago
  > Do you honestly believe the only reason publishers went after IA is the emergency library? I mean, they did so right after IA did it, specifically citing IA doing it as why. Maybe they would have come after it eventually anyway but the Emergency Library specifically marked IA as an organisation that couldn't be trusted; even if they would have come after CDL, IA didn't have to hand them a slam-dunk case. In all their comms about this IA is desperate to reframe it as nothing to do with Emergency Library, probably because they know how it undermines their case completely. Edit: EA -> Emergency Library
  - birdyrooster 4y ago
    What is the EA?
    - misnome 4y ago
      Flubbed their emergency lending library acronym in my head into -> EA. Edited to clarify.
      - jahsome 4y ago
        E-A Books... It's on the Page!
        rPlayer6554 4y ago
        DLC: Table of Contents | $10.99 | Buy Now! Authors Note | $15.99 | Buy Now! Ability to Bookmark | $20.99 | Buy Now! Gold Book Cover Skin | $5.99 | Buy Now! Neon Book Cover Skin | $3.99 | Buy Now! Camo Book Cover Skin | $3.99 | Buy Now! Red Book Cover Skin | $3.99 | Buy Now!
        jahsome 4y ago
        What, no battle pass?!
        4y ago
- causi 4y ago
  They were only sued after they launched the Emergency Library. Also, Koeltl's current ruling applies in particular to lending without the waitlist restriction is legal. CDL in general isn't yet ruled on. IA's actions with the NEL not only prompted the lawsuit in the first place but have almost certainly poisoned the well with regards to the final ruling on CDL.
  - jrmg 4y ago
    Koeltl's current ruling applies in particular to lending without the waitlist restriction is legal. CDL in general isn't yet ruled on. That’s not the case. The decision is clearly written, and clearly about CDL. https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...
    - causi 4y ago
      Ok, that appears correct. Still, the NEL prompted the suits in the first place and, among other things, proved that when the IA says it cares about the legal rights of publishers and authors it is lying. That's tremendously influential. If CDL had more years to become a regular thing that a significant fraction of people use, it would've had a much better chance in court.
      - jrmg 4y ago
        Yeah, I agree with that. I’m not sure it would really have changed the opinion of the court though. Personally I’d much rather the money being spent on this was spent on a campaign to change copyright law to allow things like CDL rather than implausibly shoehorning what they want to do into the crevices of the current law. It’s an uphill battle, but one that I think might be more likely to succeed in the very long term.
      - matwood 4y ago
        > If CDL had more years to become a regular thing that a significant fraction of people use, it would've had a much better chance in court. Not as implemented by IA. They admit they had zero controls in place for the 'pool' libraries so they likely had books in circulation in both print and digital at the same time. The also had a side for-profit company selling used print books linked from the digital CDL. This case never had a chance.
- snapetom 4y ago
  The lawsuit was filed three months after NEL was launched. Controlled Digital Lending has been around for years and is used by public libraries. Publishers didn’t like it CDL, but they lived with it. There absolutely is a correlation between NEL and the lawsuit. It’s a small part of the lawsuit, but it’s clear it pushed them to go to war against IA.
  - thebooktocome 4y ago
    > Publishers didn’t like it CDL, but they lived with it. Publishers spent millions of dollars developing digital lending platforms with fewer features and worse ROI than CDL, and then bullied libraries into adopting them. This is a reasonable summary of their pre-IA activities: https://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?article=1444&context=lib_articles https://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?arti... > There absolutely is a correlation between NEL and the lawsuit. As many comments point out in this thread, legally the trial and the judicial decision had little to do with the NEL. Therefore, in the counterfactual where the NEL had not been part of the dispute, the publishers would have still won their case.
    - snapetom 4y ago
      > As many comments point out in this thread, legally the trial and the judicial decision had little to do with the NEL. That's not in dispute. > Therefore, in the counterfactual where the NEL had not been part of the dispute, the publishers would have still won their case That fact that they brought the case does have a lot to do with NEL. Timeline-wise, it's clear NEL triggered the case. The HN crowd breeds a binary "yes/no" mentality, but real world businesses decisions, especially legal ones, take many things into account.
- Spooky23 4y ago
  The “emergency library” was a gift on a silver platter for the publishers. It was a reckless and stupid action that made the worst case scenario that the publishers wouldn’t have been taken seriously about a reality. Obviously the 1-1 lending was an issue to the publishers, but higher risk from a litigation perspective.
  - jacquesm 4y ago
    And it is strictly speaking not a thing that IA should be doing in the first place. They should have set up a completely different legal entity for this and kept them visibly separated on all fronts, especially online.
  - tracker1 4y ago
    They really should have tried to work with the publishers to introduce maybe a reduced rate rental interface if a work wasn't available from their "digital library" as a loaned book. More work, but if they have loan mechanics worked out, then rental is just a payment above that. Or, if Amazon had/has a rental system in place, just affiliate link through to amazon when unavailable for rent/purchase there... that could fund IA without the minefield at all
- rdiddly 4y ago
  Siblings of this comment piling on to point out the timing: yes, yes. I don't suppose proximate or triggering causes can coexist alongside ultimate or long-term causes by any chance? Like hey did the last straw break your camel's back or was it all the previous straws? Couldn't possibly be both, so let's argue about it.
  - Xelynega 4y ago
    The "straw that broke the camels back" analogy is perfect and I should have included. It's my stance that while yes the NEL was the final straw that prompted the case, that straw would have been something eventually. What's the point of arguing over what caused the final straw, their mission statement(free access to knowledge) is incompatible with the publishers(limit access to knowledge for profit). This was going to happen eventually, the only bad thing about the IAs decision to create the NEL is how much it's dominating these discussions instead of the actual issues.
- rsync 4y ago
  "I'm tired of seeing this "well IA shouldn't have done the emergency library" line." I appreciate that. However, as a long-time, regular, sustaining financial benefactor of IA, I was annoyed that they strayed into this set of activities in the first place and then dismayed when they pushed the envelope on it during C19 quarantines. I, and others, predicted this trouble and even if there is not direct causation why do they have to tickle this dragon in the first place ?
  - thaumaturgy 4y ago
    I mean, their mission statement is "universal access to all knowledge". They had to push these boundaries because it's their purpose. The boundaries themselves are dumb and arbitrary (see e.g. https://www.npr.org/2022/11/09/1135639385/libraries-publishers-ebooks-e-books-macmillan-protest-amazon-bezos https://www.npr.org/2022/11/09/1135639385/libraries-publishe...). Maybe the publishers are deserving of more criticism than the Archive here?
    - MattGaiser 4y ago
      Have the risky stuff done by another legal entity perhaps?
      - jtode 4y ago
        Creating proxy entities to protect oneself is only available to people who hold a lot of capital.
        dmonitor 4y ago
        The IA easily could have done it.
        jtode 4y ago
        Perhaps they're attempting to relate to the world that everyone has to live in, rather than the reality of capital.
- kodah 4y ago
  Frankly, this isn't out of character for the IA. They want to be treated as a global system of record, but then started hostile initiatives like ignoring robots.txt. They've somewhat rectified this now, but their blog post about brazenly doing this is still up. It's good insight to how they think about themselves. They want protection but none of the regulation that will come with it. The proof of their character has been in the pudding the whole time.
  - tracker1 4y ago
    I don't mind their desire to slurp up all the things... my bigger/biggest issue is probably the reproduction/distribution by making what they slurp generally available (when they bypass said robots.txt as an example). For expired works, or works that are no longer published, I'm pretty morally flexible here and lean towards making it available.
  - gkbrk 4y ago
    > hostile initiatives like ignoring robots.txt Why would an organization with the goal of being a digital "library" care about robots.txt? Would you expect public and private libraries to discard arbitrary books of a publisher from their collection because the author put a file called libraries.txt on their website?
    - kodah 4y ago
      If your public library found your journal laying on the floor would you expect them to put it on their shelf, even if you had a message inside the cover that said "not for reproduction"? Would they eschew blame if you'd shared this journal with friends? The answer is no. You wouldn't. Some people put things on the internet but don't want them slurped up by some mindless machine, and some people post both public content and content which they don't want handled by a machine. It's a fair ask that the IA respect long-trodden patterns of the web.
      - account42 4y ago
        The is no mindles machine, only computers automating work for humans. If you don't want things on the public web then noone is forcing you to put them there. Once you put things online accessible to anyone then things will get archived and shared. Deal with it.
- matwood 4y ago
  > Do you honestly believe the only reason publishers went after IA is the emergency library? Yes, it's even mentioned a few times in the judgement. Publishers didn't like the CDL, but were mostly ignoring it. The NEL forced their hand, even if the lawsuit was not about that directly. > They operate in a country where precedent is set in a court of law, how did you expect CDL to "get off the ground" if not challenged in a court of law? If the IA really set up the CDL to have a plausible challenge they would not have shot themselves in the foot with complete lack of implementation controls, and clearly setting up a profit motive. Everyone should be furious at the IA for poisoning the CDL well. I highly recommend reading the judgement, https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...
justin66 4y ago
[flagged]
legitimayzer 4y ago
> Controlled digital lending had a chance of getting off the ground. sure, it may have worked, but fuck me if that's what we get. controlled digital lending means we throw away[1] the great advantage brought by digital technology. controlled digital lending is a very stupid thing to do. I saw megaupload. it showed us all that we can all share it all; we just don't seem to want to, or rather, the American government pursued them into extinction. [1] looking at this even more closely, it's not that this 'digital advantage' is wasted, it is merely captured by authoritative powers who only understand markets, trade, and exclusive properties (exclusive due to being physical/material in nature unlike digital assets). e.g. Microsoft's billionaire business is made from capturing this digital boon as I called it.
- tracker1 4y ago
  Might be interesting to start a large "online library" that does physical books by mail. Similar to Netflix original dvd model, but for books. An annual membership fee of like $20/yr to help maintain storage infrastructure. Then ship those books to/from people in reusable boxes for bigger/unwieldy books or padded envelopes if that's sufficient for less expensive paperback. Small per-lend fee to cover the shipping cost, with a return window or followup fee per N days... days determined based on the size/pages in the book/volume. With efforts to work with various local libraries to handle some of the distribution closer to the people.
  - causi 4y ago
    I don't see how the shipping costs could ever be low enough for that to make sense. Even after my organization's massive UPS discounts, shipping a paperback one state over still costs $4.30. Would you rather spend five bucks to rent a used book or fifteen to buy a new one?
    - boomboomsubban 4y ago
      USPS offers media and library rates, which goes as low as $2.20 for any zone. That'd still be $4.40 round trip though.
thaumaturgy 4y ago
I keep seeing this really bad take repeated on this site in the absence of more nuanced, informed legal opinions. Whether CDL is legal under Fair Use or not was/is legally unresolved. Whether it's legally permissible to copy a printed material and distribute that copy as though it were the printed material was/is unresolved. Lots of organizations have been skating along under one interpretation of Fair Use as a workaround for the burdensome licensing fees and absurd lending limits that publishers expect libraries to pay. Libraries being, y'know, super well-funded by that VC honey and all. And it's not like publishers get less litigious over time. Whether the NEL prompted this or not is irrelevant; it was going to be tested, and IA are exactly the right organization to test it, and it wasn't going to become "more legal" if everyone just kept doing the same thing but more quietly. Now that it's being tested, the right thing to do is to figure out if CDL is something we as a society want to enable for our libraries or not.
- criddell 4y ago
  > Whether it's legally permissible to copy a printed material and distribute that copy as though it were the printed material was/is unresolved. A lot of IA supporters wish they would have gone about discovering this in a way that protected the actual internet archive. Maybe I don't understand the actual risks to the IA, but it feels like a reckless move.
  - thaumaturgy 4y ago
    This could be tricky. As I understand it (not a lawyer, etc.), whether an organization believes it is operating within the confines of the law can impact the outcome of a legal dispute. The important distinction here is that these are competing interpretations of Fair Use; there's no case law (as far as I'm aware) that settles this one way or the other. So, for the Archive to go, "well, let's set up a shell corporation and do this thing through some structure that might shield us from harm" would require that they believed they were doing something illegal. See for example para. 3 in https://www.newyorker.com/books/page-turner/the-national-emergency-library-is-a-gift-to-readers-everywhere https://www.newyorker.com/books/page-turner/the-national-eme...
RC_ITR 4y ago
Not only that, but the logic of the whole thing was weak anyway and I'd argue it didn't achieve any of its goals. There are plenty of places to torrent books online. If people are desperate for a book and savvy enough to know about the Internet Archive, chances are they would have found an available copy online anyway. It's also not as though downloading an illegal copy from IA put the user at any less legal risk than downloading from elsewhere (other than giving publishers a bigger target to go after, which is exactly what happened). It's a shame, because IA felt like a true public good on the Internet, and now it looks like it's going away. Sigh.
phendrenad2 4y ago
That's a pretty good analogy, but not quite. This has been a hostage/terrorist situation from the beginning. The Internet Archive has been holding the Wayback Machine hostage, essentially saying "let us break copyright, or this critical piece of internet history goes down as well".
schroeding 4y ago
Totally agree with the first part. > Controlled digital lending had a chance of getting off the ground. The IA's Emergency Library's unlimited digital lending burned it to the ground and stomped on the ashes. One of the problems libraries face is that many publishers will not sell them "real" licenses, but only "quota licenses" that allow a total of n borrows and m concurrent borrows. Once the total number of borrows is exceeded, the license expires. n can be very low. This was not always the case. 10 years ago, most licenses were unrestricted licenses that allowed an unlimited number of total borrows, but only limited the number of m concurrent borrows at a time - just like it would be if the library bought m real books. The argument is that real books wear out - digital books don't. However, my local librarian vehemently disagrees with this statement, as many books survive more than 100 borrows, something the new e-book licenses will never manage. Additionally, those "quota" licenses are still way more expensive than an equal amount of m real, physical books. It's insanity. My local library could, by their own account, not survive if the number of digital lends permanently increased significantly (like it did in 2020). So if controlled digital lending had a chance for the mainstream, the publishers killed it many years ago, when many of them decided to just not sell libraries unrestricted licenses anymore, but only "quota" licenses. :/ (Disclaimer: Not the US, Europe)
- CobrastanJorji 4y ago
  This was not always the case because libraries weren't seen as a threat. Renting a digital book from a library was significantly harder than buying one from Amazon. The "Libby" app was a major motivator, at least in the US, because it made checking out digital books about as easy as just using the Kindle store. Usage went way up, and publishers panicked. Publishers aren't necessarily the villains here, except in the regular way all middle men are the villains. Authors want to make money, and they make money by selling books. If a library can digitally loan the book an unlimited number of times in parallel, it's a bad deal for the author. The "this book automatically explodes after 2 years or 10 rentals" system is a stupid compromise, but any solution is gonna be some sort of system to send money from libraries to companies based on how many people read the book.
  - EleanorKonik 4y ago
gjsman-1000 4y ago
I actually wondered initially, even if CDL was legal, how are they going to enforce the actual Controlled part? What's the standard for that? Is simply not having a download button sufficient? Do you need to prevent people from right-clicking and choose "Save Image"? Or do you need to run the book through a video stream encrypted with Widevine L3 so screenshots don't work? Or heck, why not Widevine L1 which requires hardware not found on Windows because L3 will always be exploitable?
- schroeding 4y ago
  Adobe Digital Editions DRM and watermarking appear to be popular. It's definitely breakable (e.g. with Calibre and DeDRM, this is even required if you use an obscure E-Reader which does not support it), but secure enough that the publishers are happy.
reisse 4y ago
> Controlled digital lending had a chance of getting off the ground. Fuck it. It should never get off the ground, really. We, as a society, don't need controlled lending for something that can be copied for free. What we need is a fair mechanism to keep authors whole while keeping digital copies available for all, free of charge. And the system slowly changes by itself, discovering multiple such mechanisms. Like, for example, making physical books collectibles; or paying for early access (not for the access per se).
- causi 4y ago
  Agreed. Patron-based funding if not necessarily Patreon is the best way of paying for the creation of intellectual works.
MilnerRoute 4y ago
My issue is with the headline: "If we lose the internet archive, we're screwed." But no one is saying we're in danger of losing the entire Internet Archive. They do many many things - most of which are not in any way affected by this lawsuit. The judge even specified that the Internet Archive can still scan and publish copies of books in the public domain.
- zargon 4y ago
  If the publishers seek statutory damages then yes, the entire archive is in critical danger.
  - MilnerRoute 4y ago
    I'll admit I didn't consider statutory damages. But the judge addresses that in his opinion. The Internet Archive argues that as a nonprofit, statutory damages shouldn't apply. Tbe judge says it's just the wrong phase of the trial for that argument altogether. You can say there's some potential there for a worst-case scenario - but even then, we don't "lose" the Internet Archive unless they also lose on that specific point, are fined heavy statutory damages, can't pay them off or raise the money, and then cease to exist. Sure that's a bad what-if scenario. But I think it's just too early to have it in headlines.
jahsome 4y ago
I appreciate your passion! Unsolicited advice: IME I've found being angry because I was right serves no one, least of all myself. I would recommend you soften your language. Harshness, even if warranted, turns people off, especially those who could learn most from what you have to say.
- deleted 4y ago
  [deleted]
modzu 4y ago
good sir, the pandemic magically nullified the idea of basic human rights.

by causi 4y ago

Xelynega 4y ago

They're not in court for the emergency library. They're in court for the 1-1 CDL lending they did. I'm tired of seeing this "well IA shouldn't have done the emergency library" line. Do you honestly believe the only reason publishers went after IA is the emergency library? I think this would have happened eventually, so pointing to the emergency library does nothing but tell everyone that you were right all along. They operate in a country where precedent is set in a court of law, how did you expect CDL to "get off the ground" if not challenged in a court of law?

Mindwipe 4y ago
> They're not in court for the emergency library. They are in court for the "emergency library". The emergency library is a key part of the case. It's just inevitable that the lawsuit would also hinge on if 1 - 1 CDL is legally permissible and the case will inevitably have to rule on that. And yes, timing wise, and from the letters the publishes sent to the IA, they are explicitly about the "emergency library".
- thebooktocome 4y ago
  I read the opinion. The emergency library appears once, only insofar as CDL being found not fair use entails that emergency lending was also not fair use. It’s an entirely severable part of the decision. The publishers legally had a case against CDL without it.
- jrmg 4y ago
  The emergency library is definitely not what the case is about. You can read the decision and it’s hardly mentioned. https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.nysd.53... It might be the case that it prompted publishers to file earlier, but I have a very hard time believing they’d have just let 1:1 digital-for-physical lending slide for ever if it hadn’t happened.
misnome 4y ago
> Do you honestly believe the only reason publishers went after IA is the emergency library? I mean, they did so right after IA did it, specifically citing IA doing it as why. Maybe they would have come after it eventually anyway but the Emergency Library specifically marked IA as an organisation that couldn't be trusted; even if they would have come after CDL, IA didn't have to hand them a slam-dunk case. In all their comms about this IA is desperate to reframe it as nothing to do with Emergency Library, probably because they know how it undermines their case completely. Edit: EA -> Emergency Library
- birdyrooster 4y ago
  What is the EA?
  - misnome 4y ago
    Flubbed their emergency lending library acronym in my head into -> EA. Edited to clarify.
    - jahsome 4y ago
      E-A Books... It's on the Page!
      - rPlayer6554 4y ago
        DLC: Table of Contents | $10.99 | Buy Now! Authors Note | $15.99 | Buy Now! Ability to Bookmark | $20.99 | Buy Now! Gold Book Cover Skin | $5.99 | Buy Now! Neon Book Cover Skin | $3.99 | Buy Now! Camo Book Cover Skin | $3.99 | Buy Now! Red Book Cover Skin | $3.99 | Buy Now!
        jahsome 4y ago
        What, no battle pass?!
      - 4y ago
causi 4y ago
They were only sued after they launched the Emergency Library. Also, Koeltl's current ruling applies in particular to lending without the waitlist restriction is legal. CDL in general isn't yet ruled on. IA's actions with the NEL not only prompted the lawsuit in the first place but have almost certainly poisoned the well with regards to the final ruling on CDL.
- jrmg 4y ago
  Koeltl's current ruling applies in particular to lending without the waitlist restriction is legal. CDL in general isn't yet ruled on. That’s not the case. The decision is clearly written, and clearly about CDL. https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...
  - causi 4y ago
    Ok, that appears correct. Still, the NEL prompted the suits in the first place and, among other things, proved that when the IA says it cares about the legal rights of publishers and authors it is lying. That's tremendously influential. If CDL had more years to become a regular thing that a significant fraction of people use, it would've had a much better chance in court.
    - jrmg 4y ago
      Yeah, I agree with that. I’m not sure it would really have changed the opinion of the court though. Personally I’d much rather the money being spent on this was spent on a campaign to change copyright law to allow things like CDL rather than implausibly shoehorning what they want to do into the crevices of the current law. It’s an uphill battle, but one that I think might be more likely to succeed in the very long term.
    - matwood 4y ago
      > If CDL had more years to become a regular thing that a significant fraction of people use, it would've had a much better chance in court. Not as implemented by IA. They admit they had zero controls in place for the 'pool' libraries so they likely had books in circulation in both print and digital at the same time. The also had a side for-profit company selling used print books linked from the digital CDL. This case never had a chance.
snapetom 4y ago
The lawsuit was filed three months after NEL was launched. Controlled Digital Lending has been around for years and is used by public libraries. Publishers didn’t like it CDL, but they lived with it. There absolutely is a correlation between NEL and the lawsuit. It’s a small part of the lawsuit, but it’s clear it pushed them to go to war against IA.
- thebooktocome 4y ago
  > Publishers didn’t like it CDL, but they lived with it. Publishers spent millions of dollars developing digital lending platforms with fewer features and worse ROI than CDL, and then bullied libraries into adopting them. This is a reasonable summary of their pre-IA activities: https://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?article=1444&context=lib_articles https://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?arti... > There absolutely is a correlation between NEL and the lawsuit. As many comments point out in this thread, legally the trial and the judicial decision had little to do with the NEL. Therefore, in the counterfactual where the NEL had not been part of the dispute, the publishers would have still won their case.
  - snapetom 4y ago
    > As many comments point out in this thread, legally the trial and the judicial decision had little to do with the NEL. That's not in dispute. > Therefore, in the counterfactual where the NEL had not been part of the dispute, the publishers would have still won their case That fact that they brought the case does have a lot to do with NEL. Timeline-wise, it's clear NEL triggered the case. The HN crowd breeds a binary "yes/no" mentality, but real world businesses decisions, especially legal ones, take many things into account.
Spooky23 4y ago
The “emergency library” was a gift on a silver platter for the publishers. It was a reckless and stupid action that made the worst case scenario that the publishers wouldn’t have been taken seriously about a reality. Obviously the 1-1 lending was an issue to the publishers, but higher risk from a litigation perspective.
- jacquesm 4y ago
  And it is strictly speaking not a thing that IA should be doing in the first place. They should have set up a completely different legal entity for this and kept them visibly separated on all fronts, especially online.
- tracker1 4y ago
  They really should have tried to work with the publishers to introduce maybe a reduced rate rental interface if a work wasn't available from their "digital library" as a loaned book. More work, but if they have loan mechanics worked out, then rental is just a payment above that. Or, if Amazon had/has a rental system in place, just affiliate link through to amazon when unavailable for rent/purchase there... that could fund IA without the minefield at all
rdiddly 4y ago
Siblings of this comment piling on to point out the timing: yes, yes. I don't suppose proximate or triggering causes can coexist alongside ultimate or long-term causes by any chance? Like hey did the last straw break your camel's back or was it all the previous straws? Couldn't possibly be both, so let's argue about it.
- Xelynega 4y ago
  The "straw that broke the camels back" analogy is perfect and I should have included. It's my stance that while yes the NEL was the final straw that prompted the case, that straw would have been something eventually. What's the point of arguing over what caused the final straw, their mission statement(free access to knowledge) is incompatible with the publishers(limit access to knowledge for profit). This was going to happen eventually, the only bad thing about the IAs decision to create the NEL is how much it's dominating these discussions instead of the actual issues.
rsync 4y ago
"I'm tired of seeing this "well IA shouldn't have done the emergency library" line." I appreciate that. However, as a long-time, regular, sustaining financial benefactor of IA, I was annoyed that they strayed into this set of activities in the first place and then dismayed when they pushed the envelope on it during C19 quarantines. I, and others, predicted this trouble and even if there is not direct causation why do they have to tickle this dragon in the first place ?
- thaumaturgy 4y ago
  I mean, their mission statement is "universal access to all knowledge". They had to push these boundaries because it's their purpose. The boundaries themselves are dumb and arbitrary (see e.g. https://www.npr.org/2022/11/09/1135639385/libraries-publishers-ebooks-e-books-macmillan-protest-amazon-bezos https://www.npr.org/2022/11/09/1135639385/libraries-publishe...). Maybe the publishers are deserving of more criticism than the Archive here?
  - MattGaiser 4y ago
    Have the risky stuff done by another legal entity perhaps?
    - jtode 4y ago
      Creating proxy entities to protect oneself is only available to people who hold a lot of capital.
      - dmonitor 4y ago
        The IA easily could have done it.
        jtode 4y ago
        Perhaps they're attempting to relate to the world that everyone has to live in, rather than the reality of capital.
kodah 4y ago
Frankly, this isn't out of character for the IA. They want to be treated as a global system of record, but then started hostile initiatives like ignoring robots.txt. They've somewhat rectified this now, but their blog post about brazenly doing this is still up. It's good insight to how they think about themselves. They want protection but none of the regulation that will come with it. The proof of their character has been in the pudding the whole time.
- tracker1 4y ago
  I don't mind their desire to slurp up all the things... my bigger/biggest issue is probably the reproduction/distribution by making what they slurp generally available (when they bypass said robots.txt as an example). For expired works, or works that are no longer published, I'm pretty morally flexible here and lean towards making it available.
- gkbrk 4y ago
  > hostile initiatives like ignoring robots.txt Why would an organization with the goal of being a digital "library" care about robots.txt? Would you expect public and private libraries to discard arbitrary books of a publisher from their collection because the author put a file called libraries.txt on their website?
  - kodah 4y ago
    If your public library found your journal laying on the floor would you expect them to put it on their shelf, even if you had a message inside the cover that said "not for reproduction"? Would they eschew blame if you'd shared this journal with friends? The answer is no. You wouldn't. Some people put things on the internet but don't want them slurped up by some mindless machine, and some people post both public content and content which they don't want handled by a machine. It's a fair ask that the IA respect long-trodden patterns of the web.
    - account42 4y ago
      The is no mindles machine, only computers automating work for humans. If you don't want things on the public web then noone is forcing you to put them there. Once you put things online accessible to anyone then things will get archived and shared. Deal with it.
matwood 4y ago
> Do you honestly believe the only reason publishers went after IA is the emergency library? Yes, it's even mentioned a few times in the judgement. Publishers didn't like the CDL, but were mostly ignoring it. The NEL forced their hand, even if the lawsuit was not about that directly. > They operate in a country where precedent is set in a court of law, how did you expect CDL to "get off the ground" if not challenged in a court of law? If the IA really set up the CDL to have a plausible challenge they would not have shot themselves in the foot with complete lack of implementation controls, and clearly setting up a profit motive. Everyone should be furious at the IA for poisoning the CDL well. I highly recommend reading the judgement, https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...

justin66 4y ago

[flagged]

legitimayzer 4y ago

> Controlled digital lending had a chance of getting off the ground. sure, it may have worked, but fuck me if that's what we get. controlled digital lending means we throw away[1] the great advantage brought by digital technology. controlled digital lending is a very stupid thing to do. I saw megaupload. it showed us all that we can all share it all; we just don't seem to want to, or rather, the American government pursued them into extinction. [1] looking at this even more closely, it's not that this 'digital advantage' is wasted, it is merely captured by authoritative powers who only understand markets, trade, and exclusive properties (exclusive due to being physical/material in nature unlike digital assets). e.g. Microsoft's billionaire business is made from capturing this digital boon as I called it.

tracker1 4y ago
Might be interesting to start a large "online library" that does physical books by mail. Similar to Netflix original dvd model, but for books. An annual membership fee of like $20/yr to help maintain storage infrastructure. Then ship those books to/from people in reusable boxes for bigger/unwieldy books or padded envelopes if that's sufficient for less expensive paperback. Small per-lend fee to cover the shipping cost, with a return window or followup fee per N days... days determined based on the size/pages in the book/volume. With efforts to work with various local libraries to handle some of the distribution closer to the people.
- causi 4y ago
  I don't see how the shipping costs could ever be low enough for that to make sense. Even after my organization's massive UPS discounts, shipping a paperback one state over still costs $4.30. Would you rather spend five bucks to rent a used book or fifteen to buy a new one?
  - boomboomsubban 4y ago
    USPS offers media and library rates, which goes as low as $2.20 for any zone. That'd still be $4.40 round trip though.

thaumaturgy 4y ago

I keep seeing this really bad take repeated on this site in the absence of more nuanced, informed legal opinions. Whether CDL is legal under Fair Use or not was/is legally unresolved. Whether it's legally permissible to copy a printed material and distribute that copy as though it were the printed material was/is unresolved. Lots of organizations have been skating along under one interpretation of Fair Use as a workaround for the burdensome licensing fees and absurd lending limits that publishers expect libraries to pay. Libraries being, y'know, super well-funded by that VC honey and all. And it's not like publishers get less litigious over time. Whether the NEL prompted this or not is irrelevant; it was going to be tested, and IA are exactly the right organization to test it, and it wasn't going to become "more legal" if everyone just kept doing the same thing but more quietly. Now that it's being tested, the right thing to do is to figure out if CDL is something we as a society want to enable for our libraries or not.

criddell 4y ago
> Whether it's legally permissible to copy a printed material and distribute that copy as though it were the printed material was/is unresolved. A lot of IA supporters wish they would have gone about discovering this in a way that protected the actual internet archive. Maybe I don't understand the actual risks to the IA, but it feels like a reckless move.
- thaumaturgy 4y ago
  This could be tricky. As I understand it (not a lawyer, etc.), whether an organization believes it is operating within the confines of the law can impact the outcome of a legal dispute. The important distinction here is that these are competing interpretations of Fair Use; there's no case law (as far as I'm aware) that settles this one way or the other. So, for the Archive to go, "well, let's set up a shell corporation and do this thing through some structure that might shield us from harm" would require that they believed they were doing something illegal. See for example para. 3 in https://www.newyorker.com/books/page-turner/the-national-emergency-library-is-a-gift-to-readers-everywhere https://www.newyorker.com/books/page-turner/the-national-eme...

RC_ITR 4y ago

Not only that, but the logic of the whole thing was weak anyway and I'd argue it didn't achieve any of its goals. There are plenty of places to torrent books online. If people are desperate for a book and savvy enough to know about the Internet Archive, chances are they would have found an available copy online anyway. It's also not as though downloading an illegal copy from IA put the user at any less legal risk than downloading from elsewhere (other than giving publishers a bigger target to go after, which is exactly what happened). It's a shame, because IA felt like a true public good on the Internet, and now it looks like it's going away. Sigh.

phendrenad2 4y ago

That's a pretty good analogy, but not quite. This has been a hostage/terrorist situation from the beginning. The Internet Archive has been holding the Wayback Machine hostage, essentially saying "let us break copyright, or this critical piece of internet history goes down as well".

schroeding 4y ago

Totally agree with the first part. > Controlled digital lending had a chance of getting off the ground. The IA's Emergency Library's unlimited digital lending burned it to the ground and stomped on the ashes. One of the problems libraries face is that many publishers will not sell them "real" licenses, but only "quota licenses" that allow a total of n borrows and m concurrent borrows. Once the total number of borrows is exceeded, the license expires. n can be very low. This was not always the case. 10 years ago, most licenses were unrestricted licenses that allowed an unlimited number of total borrows, but only limited the number of m concurrent borrows at a time - just like it would be if the library bought m real books. The argument is that real books wear out - digital books don't. However, my local librarian vehemently disagrees with this statement, as many books survive more than 100 borrows, something the new e-book licenses will never manage. Additionally, those "quota" licenses are still way more expensive than an equal amount of m real, physical books. It's insanity. My local library could, by their own account, not survive if the number of digital lends permanently increased significantly (like it did in 2020). So if controlled digital lending had a chance for the mainstream, the publishers killed it many years ago, when many of them decided to just not sell libraries unrestricted licenses anymore, but only "quota" licenses. :/ (Disclaimer: Not the US, Europe)

CobrastanJorji 4y ago
This was not always the case because libraries weren't seen as a threat. Renting a digital book from a library was significantly harder than buying one from Amazon. The "Libby" app was a major motivator, at least in the US, because it made checking out digital books about as easy as just using the Kindle store. Usage went way up, and publishers panicked. Publishers aren't necessarily the villains here, except in the regular way all middle men are the villains. Authors want to make money, and they make money by selling books. If a library can digitally loan the book an unlimited number of times in parallel, it's a bad deal for the author. The "this book automatically explodes after 2 years or 10 rentals" system is a stupid compromise, but any solution is gonna be some sort of system to send money from libraries to companies based on how many people read the book.
- EleanorKonik 4y ago

gjsman-1000 4y ago

I actually wondered initially, even if CDL was legal, how are they going to enforce the actual Controlled part? What's the standard for that? Is simply not having a download button sufficient? Do you need to prevent people from right-clicking and choose "Save Image"? Or do you need to run the book through a video stream encrypted with Widevine L3 so screenshots don't work? Or heck, why not Widevine L1 which requires hardware not found on Windows because L3 will always be exploitable?

schroeding 4y ago
Adobe Digital Editions DRM and watermarking appear to be popular. It's definitely breakable (e.g. with Calibre and DeDRM, this is even required if you use an obscure E-Reader which does not support it), but secure enough that the publishers are happy.

reisse 4y ago

> Controlled digital lending had a chance of getting off the ground. Fuck it. It should never get off the ground, really. We, as a society, don't need controlled lending for something that can be copied for free. What we need is a fair mechanism to keep authors whole while keeping digital copies available for all, free of charge. And the system slowly changes by itself, discovering multiple such mechanisms. Like, for example, making physical books collectibles; or paying for early access (not for the access per se).

causi 4y ago
Agreed. Patron-based funding if not necessarily Patreon is the best way of paying for the creation of intellectual works.

MilnerRoute 4y ago

My issue is with the headline: "If we lose the internet archive, we're screwed." But no one is saying we're in danger of losing the entire Internet Archive. They do many many things - most of which are not in any way affected by this lawsuit. The judge even specified that the Internet Archive can still scan and publish copies of books in the public domain.

zargon 4y ago
If the publishers seek statutory damages then yes, the entire archive is in critical danger.
- MilnerRoute 4y ago
  I'll admit I didn't consider statutory damages. But the judge addresses that in his opinion. The Internet Archive argues that as a nonprofit, statutory damages shouldn't apply. Tbe judge says it's just the wrong phase of the trial for that argument altogether. You can say there's some potential there for a worst-case scenario - but even then, we don't "lose" the Internet Archive unless they also lose on that specific point, are fined heavy statutory damages, can't pay them off or raise the money, and then cease to exist. Sure that's a bad what-if scenario. But I think it's just too early to have it in headlines.

jahsome 4y ago

I appreciate your passion! Unsolicited advice: IME I've found being angry because I was right serves no one, least of all myself. I would recommend you soften your language. Harshness, even if warranted, turns people off, especially those who could learn most from what you have to say.

deleted 4y ago
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modzu 4y ago

good sir, the pandemic magically nullified the idea of basic human rights.