6 ms·

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

by sumeno 3y ago

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?

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

by 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?