6 ms·

Appeals court seems lost on how Internet Archive harms publishers

77 points by lando2319 2y ago

jfengel 2y ago
Do they have to show harm? If the goal is just to shut down the digital lending I'd have thought that was a fairly straightforward consequence of the copyright. I would imagine harm is needed to get damages. Are they asking for damages? I'd love to see the publishers take some kind of responsibility for making books available to underserved communities, but as I understand it the law is kind of weak of making people be responsible.
- naasking 2y ago
  The article makes it sound like digital lending is one at a time, so it falls squarely under how libraries are authorized to work. Thus, it's not at all straightforward that digital lending violates copyright law.
  - realusername 2y ago
    If libraries weren't older than the copyright system, they would be banned as well nowadays with the extreme laws in place.
    - ProjectArcturis 2y ago
      The very idea of a library would be mocked as a ridiculous utopian fantasy.
    - _factor 2y ago
      Very accurate. We now have this magic technology that can duplicate books we had no problem lending for free when we were physically constrained. Now that we’ve advanced, we still use archaic constructs to artificially limit information. It’s a sad state.
      - jfengel 2y ago
        We have a magic technology that duplicates books, but we don't yet have one that writes books. At least not ones worth reading. Maybe LLMs will eventually make the profession of writing obsolete. We'd make books too cheap to meter.
      - mistrial9 2y ago
        "One conversation centered on the ever accelerating progress of technology and changes in the mode of human life, which gives the appearance of approaching some essential singularity in the history of the race beyond which human affairs, as we know them, could not continue" 1958 Stanislaw Ulam wrote (in reference to a conversation with John von Neumann)
  - pie_flavor 2y ago
    'One at a time' is not how 'libraries are authorized to work'. There are specific additional permissions granted to libraries[0]. They have nothing to do with making and distributing arbitrarily many copies of a work, regardless of whether the previous recipient claims to have deleted it before the next person receives it - libraries are permitted to make one copy, or in some cases three - and the suit is primarily about the period where IA enforced no such restriction in the first place. It is very straightforward that making and distributing copies is infringement without specific permission to do so or some specific legal carveout. Characterizing making many copies as sort of the same thing as having one copy which you move around may be how you treat it morally, but it certainly isn't how the law works. [0]: https://www.copyright.gov/title17/92chap1.html#108 https://www.copyright.gov/title17/92chap1.html#108
    - rpdillon 2y ago
      Kind of weird to remove a bunch of books from a library that has controlled digital lending as punishment for a period of time where they removed those controls. If there was damage during the time they removed the controls, then that's worth talking about. But they effectively work like any other library today (they buy a copy, digitize it, and then lend out the digital copy one at a time just like the physical work), so I don't see how removing books really helps anybody. I think the misunderstanding is whether or not IA is making many copies or not. My impression is that they are not.
      - pie_flavor 2y ago
        I do not know how you would end up with that impression, because for each person who downloads a copy, the IA has made a copy. Regarding the removal of books, if they were licensed to the IA in a way that allows for 'digital lending', and the IA then violates that license agreement, then the IA no longer has the license and cannot anymore do 'digital lending'. And if they weren't licensed to the IA in such a way, then they're making and distributing copies without a license to do so, which is copyright infringement.
        rpdillon 2y ago
- tomxor 2y ago
  It could also be argued dead tree libraries harm publishers... But that doesn't mean it's a good idea to ban libraries, corporate interests should not beat societal interests when they are not aligned.
  - greggyb 2y ago
    Not just "could be", indeed it has been argued. This is a good read, but section II is most relevant here: https://dash.harvard.edu/bitstream/handle/1/37374618/The%20Publisher%20Playbook%20Pre-Print%203.14.23.pdf?sequence=1 https://dash.harvard.edu/bitstream/handle/1/37374618/The%20P...
- petronio 2y ago
  IIRC you have to show harm to take anything to court. I recall cases on federal regulation that failed to move forward because a state AG failed to prove harm. It makes sense when you think about it, otherwise courts would be flooded with lawsuits "because I don't like it".
- zerocrates 2y ago
  Internet Archive is claiming their lending program is fair use, and deciding whether something is fair use involves showing the effect (or lack thereof) of the use on the market for the work. A use that doesn't hurt sales is much more likely to be held as fair use. There are requirements to show harm for other purposes like standing to sue in the first place, but that's not really a relevant issue here. Damages would of course be another, but copyright law has statutory damages that probably easily eclipse any actual harm here, and at any rate the parties already made a (confidential) agreement on damages after Internet Archive lost in the district court.
Zambyte 2y ago
> IA has argued that because copyright law is intended to provide equal access to knowledge, copyright law is better served by allowing IA's lending than by preventing it. This seems like the opposite of the intent of copyright? How could the intent of granting an artificial monopoly to one party on disseminating information be to provide equal access to knowledge?
- SAI_Peregrinus 2y ago
  US Constitution, Article I, Section 8. > The Congress shall have Power… > To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; … Copyright is a means to an end. The end must be to promote the progress of science and useful arts for Congress to have the power to create such monopolies.
- withinboredom 2y ago
  To me, it seems like someone got confused with patents, where you share your invention with the world, but claim a monopoly on using it.
  - alphabeta2024 2y ago
    Even the objective of patients was to disincentivize trade secrets by allowing limited-time monopoly and thereby making knowledge public without destroying the economic incentives.
- alphabeta2024 2y ago
  The whole objective of copyright is to encourage dissemination of knowledge. The idea originally was that by allowing authors some exclusivity over their creations for some years, there would be economic incentives to produce various technical, cultural works. The artificial monopoly is a means to an end, not an end to itself.
  - xhkkffbf 2y ago
    This. There are a few people who might write a book and give it away for free, but if you want professional artists you need to ensure that they can make money by selling copies. In other words, someone like the Internet Archive won't start giving it away for free. In any case, calling it a "monopoly" is a bit unfair. It's like saying the rape laws give a woman a "monopoly" on her body. No one is stopped from creating their own art, just from plagiarizing others.
underseacables 2y ago
I think IA is in the right here, and the court should rule in favor of expanding lending. Otherwise, it just pushes everyone over to Library Genesis. https://www.libgen.is/ https://www.libgen.is/
- pie_flavor 2y ago
  The court should rule in favor of what the law says, which is that making and distributing copies without the permission of the author is copyright infringement. If you think IA is morally in the right despite violating the law, the place for that to be fixed is in the legislature, not in the courts.
  - silentsanctuary 2y ago
    That would be the neatest solution in theory, but is somewhat hampered by the practical reality of how legislation is written and passed. Part of the reason https://en.wikipedia.org/wiki/Jury_nullification https://en.wikipedia.org/wiki/Jury_nullification is a thing.
    - pie_flavor 2y ago
      There is no causal connection at all between the two, insofar as the former even refers to anything specific.
- kvetching 2y ago
  I never saw IA on the same level as libgen, which is just straight piracy
2OEH8eoCRo0 2y ago
Interesting. IANAL but a fundamental part of lawsuits is demonstrating how you were harmed.
JonChesterfield 2y ago
The internet archive could do with one of these new AI companies funding it, since their entire business is built on there being information out there somewhere. Though more likely they each individually download the entire internet archive and then seek to burn it to the ground to stop others following, in short sighted chase the current quarterly return fashion.
- hiddencost 2y ago
  IA doesn't own their content, so you don't get any legal protection from paying for their content
deleted 2y ago
[deleted]
logicprog 2y ago
I really hope the judges rule in the Internet Archives favor. If they don't and those half a million books stay down and more publishers continue to come after the Internet Archive's library until it is completely gutted, that would be a total indictment of our awful, horrible culture. It would be like voluntarily burning the library of Alexandria. At the same time, I can't help but be saddened by the defenses that the Internet Archive is using, which all seem to lean heavily on the idea of artificially limiting digital information in order to simulate the limitations of physical books. It's so frustrating that we've created an essentially post-scarcity system, where goods can be infinitely shared at almost zero cost without ever running into supply issues, and yet, we are forced to fit this world into the straightjacket of scarcity and property rights, instead of using it to benefit and empower everyone. Especially since it's just fundamentally absurd; it's extremely difficult to actually make digital information, especially on the internet, actually function like a scarce rivalrous good that you can have property rights to. That's why piracy is such an issue, and fighting piracy will simply require more and more surveillance and corporate control of our computers and our communications until there's nothing left at all of the decentralized, post-scarcity, free-as-in-freedom potential of computers and the internet, because as long as an ounce of freedom remains, then information will slip through the fingers of corporations and the state-like sand, information wants to be free, dammit, and the more we try to deny it, the worse things get. This is no slippery slope argument either. I think the logic for why this progression would happen, the forcing function that will ensure this is pretty clear: if your goal is to eliminate piracy then any freedom on the internet and on someone's computer is a threat to that goal because information is infinitely copyable and redistributable and so the pursuit of that goal will inherently and necessarily always tend toward the complete elimination of software freedom in the long run.

77 points by lando2319 2y ago

Do they have to show harm? If the goal is just to shut down the digital lending I'd have thought that was a fairly straightforward consequence of the copyright. I would imagine harm is needed to get damages. Are they asking for damages? I'd love to see the publishers take some kind of responsibility for making books available to underserved communities, but as I understand it the law is kind of weak of making people be responsible.

naasking 2y ago
The article makes it sound like digital lending is one at a time, so it falls squarely under how libraries are authorized to work. Thus, it's not at all straightforward that digital lending violates copyright law.
- realusername 2y ago
  If libraries weren't older than the copyright system, they would be banned as well nowadays with the extreme laws in place.
  - ProjectArcturis 2y ago
    The very idea of a library would be mocked as a ridiculous utopian fantasy.
  - _factor 2y ago
    Very accurate. We now have this magic technology that can duplicate books we had no problem lending for free when we were physically constrained. Now that we’ve advanced, we still use archaic constructs to artificially limit information. It’s a sad state.
    - jfengel 2y ago
      We have a magic technology that duplicates books, but we don't yet have one that writes books. At least not ones worth reading. Maybe LLMs will eventually make the profession of writing obsolete. We'd make books too cheap to meter.
    - mistrial9 2y ago
      "One conversation centered on the ever accelerating progress of technology and changes in the mode of human life, which gives the appearance of approaching some essential singularity in the history of the race beyond which human affairs, as we know them, could not continue" 1958 Stanislaw Ulam wrote (in reference to a conversation with John von Neumann)
- pie_flavor 2y ago
  'One at a time' is not how 'libraries are authorized to work'. There are specific additional permissions granted to libraries[0]. They have nothing to do with making and distributing arbitrarily many copies of a work, regardless of whether the previous recipient claims to have deleted it before the next person receives it - libraries are permitted to make one copy, or in some cases three - and the suit is primarily about the period where IA enforced no such restriction in the first place. It is very straightforward that making and distributing copies is infringement without specific permission to do so or some specific legal carveout. Characterizing making many copies as sort of the same thing as having one copy which you move around may be how you treat it morally, but it certainly isn't how the law works. [0]: https://www.copyright.gov/title17/92chap1.html#108 https://www.copyright.gov/title17/92chap1.html#108
  - rpdillon 2y ago
    Kind of weird to remove a bunch of books from a library that has controlled digital lending as punishment for a period of time where they removed those controls. If there was damage during the time they removed the controls, then that's worth talking about. But they effectively work like any other library today (they buy a copy, digitize it, and then lend out the digital copy one at a time just like the physical work), so I don't see how removing books really helps anybody. I think the misunderstanding is whether or not IA is making many copies or not. My impression is that they are not.
    - pie_flavor 2y ago
      I do not know how you would end up with that impression, because for each person who downloads a copy, the IA has made a copy. Regarding the removal of books, if they were licensed to the IA in a way that allows for 'digital lending', and the IA then violates that license agreement, then the IA no longer has the license and cannot anymore do 'digital lending'. And if they weren't licensed to the IA in such a way, then they're making and distributing copies without a license to do so, which is copyright infringement.
      - rpdillon 2y ago
tomxor 2y ago
It could also be argued dead tree libraries harm publishers... But that doesn't mean it's a good idea to ban libraries, corporate interests should not beat societal interests when they are not aligned.
- greggyb 2y ago
  Not just "could be", indeed it has been argued. This is a good read, but section II is most relevant here: https://dash.harvard.edu/bitstream/handle/1/37374618/The%20Publisher%20Playbook%20Pre-Print%203.14.23.pdf?sequence=1 https://dash.harvard.edu/bitstream/handle/1/37374618/The%20P...
petronio 2y ago
IIRC you have to show harm to take anything to court. I recall cases on federal regulation that failed to move forward because a state AG failed to prove harm. It makes sense when you think about it, otherwise courts would be flooded with lawsuits "because I don't like it".
zerocrates 2y ago
Internet Archive is claiming their lending program is fair use, and deciding whether something is fair use involves showing the effect (or lack thereof) of the use on the market for the work. A use that doesn't hurt sales is much more likely to be held as fair use. There are requirements to show harm for other purposes like standing to sue in the first place, but that's not really a relevant issue here. Damages would of course be another, but copyright law has statutory damages that probably easily eclipse any actual harm here, and at any rate the parties already made a (confidential) agreement on damages after Internet Archive lost in the district court.

Zambyte 2y ago

> IA has argued that because copyright law is intended to provide equal access to knowledge, copyright law is better served by allowing IA's lending than by preventing it. This seems like the opposite of the intent of copyright? How could the intent of granting an artificial monopoly to one party on disseminating information be to provide equal access to knowledge?

SAI_Peregrinus 2y ago
US Constitution, Article I, Section 8. > The Congress shall have Power… > To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; … Copyright is a means to an end. The end must be to promote the progress of science and useful arts for Congress to have the power to create such monopolies.
withinboredom 2y ago
To me, it seems like someone got confused with patents, where you share your invention with the world, but claim a monopoly on using it.
- alphabeta2024 2y ago
  Even the objective of patients was to disincentivize trade secrets by allowing limited-time monopoly and thereby making knowledge public without destroying the economic incentives.
alphabeta2024 2y ago
The whole objective of copyright is to encourage dissemination of knowledge. The idea originally was that by allowing authors some exclusivity over their creations for some years, there would be economic incentives to produce various technical, cultural works. The artificial monopoly is a means to an end, not an end to itself.
- xhkkffbf 2y ago
  This. There are a few people who might write a book and give it away for free, but if you want professional artists you need to ensure that they can make money by selling copies. In other words, someone like the Internet Archive won't start giving it away for free. In any case, calling it a "monopoly" is a bit unfair. It's like saying the rape laws give a woman a "monopoly" on her body. No one is stopped from creating their own art, just from plagiarizing others.

underseacables 2y ago

I think IA is in the right here, and the court should rule in favor of expanding lending. Otherwise, it just pushes everyone over to Library Genesis. https://www.libgen.is/ https://www.libgen.is/

pie_flavor 2y ago
The court should rule in favor of what the law says, which is that making and distributing copies without the permission of the author is copyright infringement. If you think IA is morally in the right despite violating the law, the place for that to be fixed is in the legislature, not in the courts.
- silentsanctuary 2y ago
  That would be the neatest solution in theory, but is somewhat hampered by the practical reality of how legislation is written and passed. Part of the reason https://en.wikipedia.org/wiki/Jury_nullification https://en.wikipedia.org/wiki/Jury_nullification is a thing.
  - pie_flavor 2y ago
    There is no causal connection at all between the two, insofar as the former even refers to anything specific.
kvetching 2y ago
I never saw IA on the same level as libgen, which is just straight piracy

2OEH8eoCRo0 2y ago

Interesting. IANAL but a fundamental part of lawsuits is demonstrating how you were harmed.

JonChesterfield 2y ago

The internet archive could do with one of these new AI companies funding it, since their entire business is built on there being information out there somewhere. Though more likely they each individually download the entire internet archive and then seek to burn it to the ground to stop others following, in short sighted chase the current quarterly return fashion.

hiddencost 2y ago
IA doesn't own their content, so you don't get any legal protection from paying for their content

deleted 2y ago

[deleted]

logicprog 2y ago

I really hope the judges rule in the Internet Archives favor. If they don't and those half a million books stay down and more publishers continue to come after the Internet Archive's library until it is completely gutted, that would be a total indictment of our awful, horrible culture. It would be like voluntarily burning the library of Alexandria. At the same time, I can't help but be saddened by the defenses that the Internet Archive is using, which all seem to lean heavily on the idea of artificially limiting digital information in order to simulate the limitations of physical books. It's so frustrating that we've created an essentially post-scarcity system, where goods can be infinitely shared at almost zero cost without ever running into supply issues, and yet, we are forced to fit this world into the straightjacket of scarcity and property rights, instead of using it to benefit and empower everyone. Especially since it's just fundamentally absurd; it's extremely difficult to actually make digital information, especially on the internet, actually function like a scarce rivalrous good that you can have property rights to. That's why piracy is such an issue, and fighting piracy will simply require more and more surveillance and corporate control of our computers and our communications until there's nothing left at all of the decentralized, post-scarcity, free-as-in-freedom potential of computers and the internet, because as long as an ounce of freedom remains, then information will slip through the fingers of corporations and the state-like sand, information wants to be free, dammit, and the more we try to deny it, the worse things get. This is no slippery slope argument either. I think the logic for why this progression would happen, the forcing function that will ensure this is pretty clear: if your goal is to eliminate piracy then any freedom on the internet and on someone's computer is a threat to that goal because information is infinitely copyable and redistributable and so the pursuit of that goal will inherently and necessarily always tend toward the complete elimination of software freedom in the long run.