6 ms·

Internet Archive appeals, says judge Koeltl "misapplied the fair use factors"

98 points by ilamont 3y ago

sumeno 3y ago
It's hard for me to imagine this being overturned on appeal. Even if I agree with IA morally their arguments here don't pass the legal smell test to me
- arthurcolle 3y ago
  How does their argument not make sense to you?
  - iAMkenough 3y ago
    Are other digital libraries engaged in the same behavior in question? If not, how are they providing similar services? If they're not providing similar services, this argument falls apart: "it will take away a library’s ability to lend books from its permanent collections to digital learners."
    - burnerthrow008 3y ago
      As I understand it, other digital libraries buy (license) n digital copies of a book and then never lend to more than n people at once. IA would permit an unlimited number of people to borrow at once.
      - cxr 3y ago
        That's not right. Under controlled digital lending, the Internet Archive only allows simultaneous loans up to the number of copies they actually own. The difference between the Internet Archive and other libraries is that the Internet Archive does this with or without the approval of the rightsholders, whereas most other libraries buy in to services from copyright collectives that have negotiated for digital lending from the rightsholders, not unlike performing rights organizations for music or studio catalogs on Netflix.
        didntcheck 3y ago
        Wasn't the whole point that they removed that restriction during the declared "emergency library" period, despite previously doing CDL properly? They were still loaning out DRM'd files, with a limit on the number that a given user could have on loan, but crucially no longer a limit on the number of simultaneous users on a single title. Breaking the whole point of CDL which is to mimic the "move semantics" of a physical item
        cxr 3y ago
        No. (That is a thing that happened. It's not relevant here—and definitely not "the whole point"—but it did happen.)
        iudqnolq 3y ago
        Unfortunately IA falsely inflated the number of copies they permitted themselves to loan out even before they declared the national emergency library. I think controlled digital lending would be beneficial to society so I'm frustrated IA sabotaged it by setting up such bad facts for the court to consider.
    - chrismeller 3y ago
      All the libraries I’m a user of (and there are a half dozen or so) have licensed all the content through Overdrive (Libby). I don’t know how Overdrive licenses it from publishers.
  - mandmandam 3y ago
    The most important piece of legal advice I ever received was "don't take legal advice from people down the pub". It's rock solid advice.
    - arp242 3y ago
      That doesn't mean legal matters can't be discussed. No one is asking for legal advice here.
      - mandmandam 3y ago
        Where did I tell anyone legal matters can't be discussed? I told people not to take anything randomers with dubious legal training have to say even remotely seriously. I stand by that completely. Do you have any idea how wrong people get legal issues? Even expensive lawyers and respected judges get them back-asswards on a frequent basis.
  - sumeno 3y ago
    Copyright gives the holders the right to determine how copies can be distributed. A digital copy of a work is obviously not transformative of the work. I can't rip my old DVDs and say the digital copy is transformative to get around copyright. A similar example, you can't make an audiobook of a book you own and then make that available to others even though that is obviously MORE transformative than what IA is arguing.
    - AnthonyMouse 3y ago
      > Copyright gives the holders the right to determine how copies can be distributed. Subject to fair use and the first sale doctrine. > A digital copy of a work is obviously not transformative of the work. I can't rip my old DVDs and say the digital copy is transformative to get around copyright. Ripping DVDs gets prosecuted under DMCA 1201 for circumventing copy protection, not because format shifting media you own can't be fair use. See Betamax case.
  - calamari4065 3y ago
    Because it's flatly wrong. By scanning and lending a book, they are reproducing a copyrighted work and transmitting it to someone else without authorization from the copyright holder. It's not up for interpretation, the law is very clear and explicit on this point. Their argument is logical and coherent, and it makes sense on its own, but that doesn't make it any less wrong.
    - SkeuomorphicBee 3y ago
      There is precedent that copying to another format for the original use is not copyright infringement. Like copying your old CDs to your phone to listen the go. So the IA should have a strong case that digital lending is such legit copying for the original use of lending.
      - Dalewyn 3y ago
        Obligatory IANAL. Copying as a matter of using the software or making archives of the software is legal.[1] There is also no practical way to police what happens and never leaves the inside of your home. Distribution of copied software on the other hand is very illegal, and is what most so-called "archivists" (including the Internet "Archive") run afoul. Internet Archive would be having no legal issues if they simply copied software they have a right to possess and then stored the copies in their own servers inaccessible to anyone but themselves, also known as archiving. And no, archives do not need to be publically accessible. [1]: https://www.law.cornell.edu/uscode/text/17/117 https://www.law.cornell.edu/uscode/text/17/117
        AnthonyMouse 3y ago
        > Distribution of copied software on the other hand is very illegal, and is what most so-called "archivists" (including the Internet "Archive") run afoul. Clearly libraries distribute copies of copyrighted works all the time -- it's kind of their whole purpose. Lending books. Now suppose the library owns some VHS tapes and makes one DVD out of each tape, then lends out the DVDs to patrons instead of the tapes because the patrons have DVD players but not tape players. That seems like a reasonable thing for them to do. What can you cite that says that isn't fair use?
jawns 3y ago
Full disclosure: I am an author, and some of my books have been lent by the IA. I strongly opposed the IA's uncontrolled digital lending at the start of the pandemic. I thought its "Emergency Library" was very clearly illegal and tactically very stupid. On the other hand, I fully support the concept of controlled digital lending, about which the current appeal is concerned. As an author, I don't particularly care about whether a book that a library legally acquired is lent as a physical copy or a digital copy, as long as it is controlled the same way as physical copies are controlled (i.e. one person at a time can have the copy checked out). True, my publisher might consider the distinction important, because e-book licenses are a valuable revenue stream for them, but my interests are satisfied as long as the physical copy is legally acquired. Yet although I support CDL conceptually, I think more needs to be done by Congress to codify the practice; going solely by existing case law, I can see why the judge ruled against IA. In particular, the IA's argument that their CDL program was transformative, as fair-use law defines the term, is extremely shaky. What they're saying is that they employed a novel distribution method -- but that method doesn't actually transform the copyrighted work creatively; the words remain exactly the same. The term "transformative," when applied in a fair-use analysis, implies altering the material in some way, not just introducing a new transmission method.
- AnthonyMouse 3y ago
  > I thought its "Emergency Library" was very clearly illegal and tactically very stupid. I still don't get why people hate this so much. The most important fair use factor is the effect on the market for the original work. Obviously if the "Emergency Library" was permanent it would have a major effect, because libraries could buy one copy of a book and lend it to everybody, instead of having to buy enough that everyone who wants to borrow one at once can have a separate copy. But it was never intended to be permanent, and as a consequence it wouldn't have materially affected the number of books that libraries buy. As far as I know it hasn't even been established that the number of books they lent out was greater than the number locked away in closed libraries everywhere during COVID, and it seems intuitively likely that it wasn't (that's a lot of closed libraries). So the argument is that because it's an emergency and temporary, they can go on an approximation instead of having to do the exact accounting during the emergency situation. Which doesn't seem that crazy.
RcouF1uZ4gsC 3y ago
IA probably destroyed any legal basis of being a good faith actor with regards to copyright during their “Emergency Library” shenanigan. And the courts take a very dim view of filing appeals based on PR ideals rather than basis in case law. I don’t see this going well for IA.
calamari4065 3y ago
Man, I love the IA, but they really stepped over the line this time. Handing out unlimited copies of in-copyright media is clearly wrong and illegal. It's literally piracy. There is no way to argue that it's fair use. If they'd been more tactful and discreet, they might have gotten away with it. There are plenty of other copyrighted works freely available on the IA, and most don't attract enough attention to provoke legal action. The sheer scale and brazenness of this move is what's got them in trouble. IA did wrong, and they know it. They should at least have the good grace to acknowledge it instead of wasting a ton of resources on a legal battle they have no hope of winning. I fear this will be the beginning of a long and drawn out death of the IA, which would be a huge shame.
- 15457345234 3y ago
  What we really need to happen here is for them to lose the case (to avoid setting an absurd precedent) but for zero damages to be awarded due to the exigent circumstances of the pandemic. That would really be the best outcome that reflects good spirits.
  - AnthonyMouse 3y ago
    What you're implying is that they should win the case on the grounds that it was an emergency, setting the reasonable precedent that you can't do the emergency thing all the time.
  - ocdtrekkie 3y ago
    The only way a settlement happens that doesn't destroy the IA is for the IA to throw itself at the mercy of the publishers, and ask them how it can change to remain existing with the publishers' support as a public good. This, of course, won't happen. Brewster Kahle doesn't believe in copyright, and is clearly willing to burn everything to the ground in the hopes of scoring some win against it. And everyone else knows that isn't going to happen. The only way for the IA to survive is Kahle to leave it.
    - 15457345234 3y ago

98 points by ilamont 3y ago

It's hard for me to imagine this being overturned on appeal. Even if I agree with IA morally their arguments here don't pass the legal smell test to me

arthurcolle 3y ago
How does their argument not make sense to you?
- iAMkenough 3y ago
  Are other digital libraries engaged in the same behavior in question? If not, how are they providing similar services? If they're not providing similar services, this argument falls apart: "it will take away a library’s ability to lend books from its permanent collections to digital learners."
  - burnerthrow008 3y ago
    As I understand it, other digital libraries buy (license) n digital copies of a book and then never lend to more than n people at once. IA would permit an unlimited number of people to borrow at once.
    - cxr 3y ago
      That's not right. Under controlled digital lending, the Internet Archive only allows simultaneous loans up to the number of copies they actually own. The difference between the Internet Archive and other libraries is that the Internet Archive does this with or without the approval of the rightsholders, whereas most other libraries buy in to services from copyright collectives that have negotiated for digital lending from the rightsholders, not unlike performing rights organizations for music or studio catalogs on Netflix.
      - didntcheck 3y ago
        Wasn't the whole point that they removed that restriction during the declared "emergency library" period, despite previously doing CDL properly? They were still loaning out DRM'd files, with a limit on the number that a given user could have on loan, but crucially no longer a limit on the number of simultaneous users on a single title. Breaking the whole point of CDL which is to mimic the "move semantics" of a physical item
        cxr 3y ago
        No. (That is a thing that happened. It's not relevant here—and definitely not "the whole point"—but it did happen.)
      - iudqnolq 3y ago
        Unfortunately IA falsely inflated the number of copies they permitted themselves to loan out even before they declared the national emergency library. I think controlled digital lending would be beneficial to society so I'm frustrated IA sabotaged it by setting up such bad facts for the court to consider.
  - chrismeller 3y ago
    All the libraries I’m a user of (and there are a half dozen or so) have licensed all the content through Overdrive (Libby). I don’t know how Overdrive licenses it from publishers.
- mandmandam 3y ago
  The most important piece of legal advice I ever received was "don't take legal advice from people down the pub". It's rock solid advice.
  - arp242 3y ago
    That doesn't mean legal matters can't be discussed. No one is asking for legal advice here.
    - mandmandam 3y ago
      Where did I tell anyone legal matters can't be discussed? I told people not to take anything randomers with dubious legal training have to say even remotely seriously. I stand by that completely. Do you have any idea how wrong people get legal issues? Even expensive lawyers and respected judges get them back-asswards on a frequent basis.
- sumeno 3y ago
  Copyright gives the holders the right to determine how copies can be distributed. A digital copy of a work is obviously not transformative of the work. I can't rip my old DVDs and say the digital copy is transformative to get around copyright. A similar example, you can't make an audiobook of a book you own and then make that available to others even though that is obviously MORE transformative than what IA is arguing.
  - AnthonyMouse 3y ago
    > Copyright gives the holders the right to determine how copies can be distributed. Subject to fair use and the first sale doctrine. > A digital copy of a work is obviously not transformative of the work. I can't rip my old DVDs and say the digital copy is transformative to get around copyright. Ripping DVDs gets prosecuted under DMCA 1201 for circumventing copy protection, not because format shifting media you own can't be fair use. See Betamax case.
- calamari4065 3y ago
  Because it's flatly wrong. By scanning and lending a book, they are reproducing a copyrighted work and transmitting it to someone else without authorization from the copyright holder. It's not up for interpretation, the law is very clear and explicit on this point. Their argument is logical and coherent, and it makes sense on its own, but that doesn't make it any less wrong.
  - SkeuomorphicBee 3y ago
    There is precedent that copying to another format for the original use is not copyright infringement. Like copying your old CDs to your phone to listen the go. So the IA should have a strong case that digital lending is such legit copying for the original use of lending.
    - Dalewyn 3y ago
      Obligatory IANAL. Copying as a matter of using the software or making archives of the software is legal.[1] There is also no practical way to police what happens and never leaves the inside of your home. Distribution of copied software on the other hand is very illegal, and is what most so-called "archivists" (including the Internet "Archive") run afoul. Internet Archive would be having no legal issues if they simply copied software they have a right to possess and then stored the copies in their own servers inaccessible to anyone but themselves, also known as archiving. And no, archives do not need to be publically accessible. [1]: https://www.law.cornell.edu/uscode/text/17/117 https://www.law.cornell.edu/uscode/text/17/117
      - AnthonyMouse 3y ago
        > Distribution of copied software on the other hand is very illegal, and is what most so-called "archivists" (including the Internet "Archive") run afoul. Clearly libraries distribute copies of copyrighted works all the time -- it's kind of their whole purpose. Lending books. Now suppose the library owns some VHS tapes and makes one DVD out of each tape, then lends out the DVDs to patrons instead of the tapes because the patrons have DVD players but not tape players. That seems like a reasonable thing for them to do. What can you cite that says that isn't fair use?

jawns 3y ago

Full disclosure: I am an author, and some of my books have been lent by the IA. I strongly opposed the IA's uncontrolled digital lending at the start of the pandemic. I thought its "Emergency Library" was very clearly illegal and tactically very stupid. On the other hand, I fully support the concept of controlled digital lending, about which the current appeal is concerned. As an author, I don't particularly care about whether a book that a library legally acquired is lent as a physical copy or a digital copy, as long as it is controlled the same way as physical copies are controlled (i.e. one person at a time can have the copy checked out). True, my publisher might consider the distinction important, because e-book licenses are a valuable revenue stream for them, but my interests are satisfied as long as the physical copy is legally acquired. Yet although I support CDL conceptually, I think more needs to be done by Congress to codify the practice; going solely by existing case law, I can see why the judge ruled against IA. In particular, the IA's argument that their CDL program was transformative, as fair-use law defines the term, is extremely shaky. What they're saying is that they employed a novel distribution method -- but that method doesn't actually transform the copyrighted work creatively; the words remain exactly the same. The term "transformative," when applied in a fair-use analysis, implies altering the material in some way, not just introducing a new transmission method.

AnthonyMouse 3y ago
> I thought its "Emergency Library" was very clearly illegal and tactically very stupid. I still don't get why people hate this so much. The most important fair use factor is the effect on the market for the original work. Obviously if the "Emergency Library" was permanent it would have a major effect, because libraries could buy one copy of a book and lend it to everybody, instead of having to buy enough that everyone who wants to borrow one at once can have a separate copy. But it was never intended to be permanent, and as a consequence it wouldn't have materially affected the number of books that libraries buy. As far as I know it hasn't even been established that the number of books they lent out was greater than the number locked away in closed libraries everywhere during COVID, and it seems intuitively likely that it wasn't (that's a lot of closed libraries). So the argument is that because it's an emergency and temporary, they can go on an approximation instead of having to do the exact accounting during the emergency situation. Which doesn't seem that crazy.

RcouF1uZ4gsC 3y ago

IA probably destroyed any legal basis of being a good faith actor with regards to copyright during their “Emergency Library” shenanigan. And the courts take a very dim view of filing appeals based on PR ideals rather than basis in case law. I don’t see this going well for IA.

calamari4065 3y ago

Man, I love the IA, but they really stepped over the line this time. Handing out unlimited copies of in-copyright media is clearly wrong and illegal. It's literally piracy. There is no way to argue that it's fair use. If they'd been more tactful and discreet, they might have gotten away with it. There are plenty of other copyrighted works freely available on the IA, and most don't attract enough attention to provoke legal action. The sheer scale and brazenness of this move is what's got them in trouble. IA did wrong, and they know it. They should at least have the good grace to acknowledge it instead of wasting a ton of resources on a legal battle they have no hope of winning. I fear this will be the beginning of a long and drawn out death of the IA, which would be a huge shame.

15457345234 3y ago
What we really need to happen here is for them to lose the case (to avoid setting an absurd precedent) but for zero damages to be awarded due to the exigent circumstances of the pandemic. That would really be the best outcome that reflects good spirits.
- AnthonyMouse 3y ago
  What you're implying is that they should win the case on the grounds that it was an emergency, setting the reasonable precedent that you can't do the emergency thing all the time.
- ocdtrekkie 3y ago
  The only way a settlement happens that doesn't destroy the IA is for the IA to throw itself at the mercy of the publishers, and ask them how it can change to remain existing with the publishers' support as a public good. This, of course, won't happen. Brewster Kahle doesn't believe in copyright, and is clearly willing to burn everything to the ground in the hopes of scoring some win against it. And everyone else knows that isn't going to happen. The only way for the IA to survive is Kahle to leave it.
  - 15457345234 3y ago