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This has been playing out for many years. And it's all because Brewster Kahle decided that an overly broad interpretation of the Internet Archive's mission trum

This has been playing out for many years. And it's all because Brewster Kahle decided that an overly broad interpretation of the Internet Archive's mission trumped the rights of authors and publishers, and the laws of the United States. When IA was asked to stop CDL - many times - he continued. The National Writers Union tried to open a dialogue as early as 2010 but was ignored: The Internet Archive says it would rather talk with writers individually than talk to the NWU or other writers’ organizations. But requests by NWU members to talk to or meet with the Internet Archive have been ignored or rebuffed. https://nwu.org/nwu-denounces-cdl/ https://nwu.org/nwu-denounces-cdl/ When the requests to abandon CDL turned into demands, Kahle dug in his heels. When the inevitable lawsuits followed, and IA lost, he insisted that he was still in the right and plowed ahead with appeals. He also opened a new front in the court of public opinion. In his blog posts and interviews with U.S. media, Kahle portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians (see https://blog.archive.org/2023/12/15/brewster-kahle-appeal-statement/ https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st...). It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being. In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive.

dannyobrien 2y ago
I disagree with this assessment on many levels, but I think the most important challenge I can make is to the idea that Brewster Kahle is a rogue actor, who in some sense mis-interpreted the mission and strategy of the Internet Archive. For those of you who are just learning that name from this lawsuit, here's his wikipedia page: https://en.wikipedia.org/wiki/Brewster_Kahle https://en.wikipedia.org/wiki/Brewster_Kahle Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws. We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle. So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism. So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas. If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done. So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist. That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done. But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".
- sumeno 2y ago
  > Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? Lots of libraries do free digital lending of ebooks in a legal way and have done so for a long time
  - blendergeek 2y ago
    The publishers charge the libraries per lending event. This is nothing like lending physical books and the publishers fully control it.
  - pk-protect-ai 2y ago
    And now there will be a legal precedent to shut down all CDLs of these "lots of libraries".
    - jasode 2y ago
      >And now there will be a legal precedent to shut down all CDLs of these "lots of libraries" No, it's a different situation. In contrast, the government public libraries legitimately purchased ebook licenses (aka "renting") from the publishers and then "loaned" out a limited # of simultaneous copies in a legal manner. The book publishers approved this arrangement. The Internet Archive didn't do that. Instead, they "loaned" out digital scans of books they did not buy ebook licenses for and took it upon themselves to name it "Controlled Digital Lending". This method circumvents the book publishers which is the opposite of what government public libraries did. EDIT reply to: >If they have the physical book how is this any different, When I wrote, "different situation" , it's about the "legal difference" and not "philosophical difference". - situation with govt public libraries: The book publishers did not sue the public libraries that legitimately purchase ebook licenses from them. The publishers receive payments from that arrangement so there's no lawsuit for "copyright violation". - situation with Internet Archive: The book publishers sued IA for copyright violation by lending books it never purchased ebook licenses for. The circuit appeals court sided with the book publishers unanimously by a vote of 3-to-0. Those 2 situations above are different legally such that whatever precedent that's set by IA losing the case doesn't affect govt libraries that have been purchasing legitimate ebook licenses. I was trying to clarify gp's incorrect statement which could spread misinformation: "And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"
jrochkind1 2y ago
So, this case was not about CDL (Controlled Digital Lending). It was about DL with the "C" removed. Specifically the IA's previous CDL program only lent out one electronic copy at a time per physical copy held, and this case is about a program at beginning of pandemic where they suspended these limits. There could still be appeals in store for this case, but regardless of the outcome of this case, CDL could still be quite legal (and I think ought to be -- libraries ability to lend out books without publisher permission or license has been a huge gain for society, and I think must be able to continue in the electronic realm; and I think there are good legal arguments for it, on extension of first-sale doctrine to electronic realm and on fair use). It was not helpful for the case of CDL to have this pretty bad ("uncontrolled digital lending"?) case decided first though, I agree this was not a very strategic move.
- zerocrates 2y ago
  They lost here on both regular CDL and the National Emergency Library "uncontrolled" variant. The court's decision and conclusion is almost entirely about just regular CDL: "This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no." (emphasis added)
  - jrochkind1 2y ago
    Well, that is a disaster. I'll have to read more, I hadn't realized that.
    - zerocrates 2y ago
      Yeah the posture and discussion on that is basically "we don't even need to go into the NEL because CDL as a whole isn't fair use." There are some limiting principles... the lower decision only covered books that were "in print" in eBook form... but the rationale here is quite broad and would easily stretch beyond these specifics. (There's a small amount of analysis related to whether the digitization involved in CDL is "transformative" that rests on official publisher eBooks being available, but there's a strong overall impression that the decision would come out the same way for things not already available digitally.)
teruakohatu 2y ago
> In his many interviews with U.S. media, he portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians. It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being. If IA had won, IA would be hailed as a cultural hero. They hit and they missed. Claiming Brewster Kahle is against "the people who work very hard to bring new books into being" is unfair. The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years, the copyright will probably be extended again.
- tptacek 2y ago
  The further you take a federal case the more precedent you create. The infinitesimal odds IA seemed to have at winning this case have to be weighed against the precedent they have created that may bind on future controlled digital lending cases with better facts. What IA did here wasn't costless.
  - creer 2y ago
    > future controlled digital lending cases with better facts. Was anyone else doing anything? Or standing ready to do anything?
    - tptacek 2y ago
      I don't know, but anybody who wasn't doing anything and wasn't standing to do anything was more valuable to digital rights than the people who appealed this case to the 2nd Circuit, in that none of them actually damaged digital rights.
      - creer 2y ago
        I don't know. From the point of view of the appeal and mechanical precedent specifically, maybe, maybe not. At first read, the decision rationale seems somewhat measured and interesting - it doesn't just say "Declined". And meanwhile, IA kept the issue present and discussed and with some attempt at doing something different - even in the appeal.
msla 2y ago
CDL is how physical libraries work: They buy a book and then lend it out multiple times to multiple people, on a one-in one-out basis, who then do not have to buy the book themselves. They even repair books to avoid purchasing new ones again. Do you think physical libraries harm the people who bring books into being?
- tptacek 2y ago
  Physical libraries lend actual physical objects. They don't copy anything. This is a copyright case.
  - msla 2y ago
    The effect on authors is the same: A book is circulated multiple times after being bought once.
    - tptacek 2y ago
      That's not how the law works. Again: this is a copyright case.
      - doctorpangloss 2y ago
        “The only moral laws are my laws.”
        pessimizer 2y ago
        Who is this a quote from, and who is talking about "moral laws?"
      - JoshTriplett 2y ago
        I don't think people here are confused about how the law works. I think many people here feel the law shouldn't work that way. Stating it explicitly: while the NEL was dubious, CDL should have been 100% legal, and it's a massive disappointment to see it ruled against.
doctorpangloss 2y ago
[flagged]
- tptacek 2y ago
  He just created a really terrible 2nd Circuit precedent. He could have avoided that easily. How was this his job?
  - thaumasiotes 2y ago
    Not setting a terrible precedent is actually the judge's job.
    - tptacek 2y ago
      Not so much? The judge applied the law to the facts. I don't think this is an especially controversial case, legally.
      - thaumasiotes 2y ago
        If that's what you think, then the precedent is neither terrible nor interesting.
        tptacek 2y ago
        It's bad if you want people to be able to do 1:1 lending of digitized books. It's fine if you don't care. The point is that it didn't need to happen; there was no reason to appeal the case. It was a loser to begin with.
        thaumasiotes 2y ago
        > It's bad if you want people to be able to do 1:1 lending of digitized books. How? By your argument, this was already clearly illegal. What did the precedent change?
tombert 2y ago
This is why I stopped donating to IA, and I will not donate until they get new leadership. I'm a very big supporter of a lot of what IA does, but I feel if I donate, my money is just going to fund more and more legal defenses because Brewster Kahle is being stubborn, and I'm afraid it's going to lead to the entire Archive being shut down. I've mentioned this before, but there are lots of cases where IA will let you download full video games for the switch that are still being actively sold [1]. The same applies to a lot of movies and TV shows, available via torrents no less. Before someone gives me a lecture about data harboring laws and fair use, I know that it is technically on the copyright holder to issue takedown requests for infringing material, but even still, I think they'd be smart to be a bit proactive about this. If I know that the Internet Archive is an easy place to get pirated material, then I'm quite confident that their staff does as well. If there's even one employee email that implies that they know about pirated content but didn't bother taking it down, then I think that's grounds for a lawsuit (though I'm not a lawyer). Much as I respect him for founding IA, I think that Kahle needs to be replaced as a leader. [1] I'm not going to link it here because I'm not sure HN's policy on potentially legally dubious material, but it is not hard to find.
- jrflowers 2y ago
  > IA will let you download full video games for the switch that are still being actively sold [1] I am not seeing that anywhere. I see a file called “My Nintendo Switch games collection” and it is a big jpeg photo of a bookshelf. Is this what you mean?
  - opan 2y ago
    It's harder to find them than I expected, but one search with a result is "super mario wonder nsp". I had the advantage of knowing the format(s) Switch game dumps come in, though, so the average person might not find much.
    - jrflowers 2y ago
      I’m getting a “no results found” response from that search. Maybe it has already been taken down?
fngjdflmdflg 2y ago
You also forgot the national emergency library thing which only made his position more unworkable with current copyright law.
Sysreq2 2y ago
We’ve been here before: you can’t punish someone into being your consumer. Someone who wants your product at the price you offer it will ultimately pay for it. Short sighted business decisions ultimately hurt the industry more than accepting the need to change your business model.
codedokode 2y ago
I think you misunderstand the situation. If you haven't read the lawsuit [1] I suggest you look through it. Basically, there is an established practice for lending printed books: the library buys a book and lends it to patrons without permission from the copyright owner. However, publishers believe that digital books are different from physical books and established practice doesn't apply to them; they believe that lending should be made at publishers' terms, to be specific: - only "academic libraries" (chosen by publishers) may lend digital books - they may lend them only to the members, for example, only students of the university, not to random people - library must buy a special "library license", which might have arbitrary price and arbitrary terms - the license has a limited term: sometimes it is 1-2 years, sometimes it is 26 lendings, after which the library must purchase a new license - the library must use publishers-approved DRM which might not work on some devices To enforce these rules publishers use DRM that prevents anyone from buying a digital book and lending it to other person (which was possible with digital books). So, in publishers view new technology means new rules and new opportunities. The IA found a workaround: they bought physical books, scanned them and lent those digital copies instead of a physical book, provided that only one user can read the same book at the same time. They acted like a library but using remote access to a digital copy. The lender might read the book on IA's website enforcing the terms of use or download a DRM-protected PDF. The lawsuit is about whether IA actions are legal or not (i.e. if digital books may be lent like physical books). Given that in future there will be less and less physical books, if publishers win, it will mean that libraries will not be able to lend contemporary books at the same terms and costs they lent physical books. There are several complications: dubious partnerships by IA with libraries to increase the number of lent simultaneously copies; dubious decision to remove limits during COVID pandemic. However, there are facts that play in IA favour: there are precedents when making digital copies was considered legal (by Google Books), and there are a 17 US Code 108 [2] and 109 [3], which allows some exemptions from copyright for libraries and archives. [1] https://www.documentcloud.org/documents/23723923-hachette-v-internet-archive-ruling https://www.documentcloud.org/documents/23723923-hachette-v-... [2] https://www.law.cornell.edu/uscode/text/17/108 https://www.law.cornell.edu/uscode/text/17/108 [3] https://www.law.cornell.edu/uscode/text/17/109 https://www.law.cornell.edu/uscode/text/17/109
- pie_flavor 2y ago
naikrovek 2y ago
Not gonna define “CDL”? Ok, “Commercial Drivers License” it is.
- FridgeSeal 2y ago
  As far as I can tell (these are all new acronyms to me too), they stand for: CDL: Controlled Digital Lending NEL: National Emergency Lending.
kylebenzle 2y ago
If all information wants to and should be free than how can freeing information ever be wrong?
matwood 2y ago
I wish people would stop saying they were doing CDL. CDL means being able to lend out a digital copy of a physical book in place of the physical book. The findings in the case showed that IA had lost complete control of the physical book so at that point they were simply breaking copyright. Add in that they steered people to their own used book store, and this case never had a chance.
- HDThoreaun 2y ago
  The findings in this case also include CDL being illegal.
JumpCrisscross 2y ago
> hope the organization can survive Maybe it shouldn’t. There is value in asking if there is a better home for those projects.
- protocolture 2y ago
  Maybe a European country that gives much less shit?
  - 7bit 2y ago
    Europe is not a third world country, where nobody gives a shit. It has laws and regulations like the US. Educate yourself.
    - mdp2021 2y ago
      It can easily have much better laws.
      - account42 2y ago
        It can but when it comes to copyright, many EU countries are not better at all.
    - porksoda 2y ago
      I get it I do, but please can you try moderate your tone? First post I open, and I already am faced with this kind of feeling. Now my breakfast will be just that little bit more bitter. Be kind. I think it was that dang fellow who said it. Yip here it is: https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html In another life I'd be clever with you and say something to the effect that you should educate your own self, and read them. And then we would have our very own little reddit subthread here for our selves, and it would be my fault, and mine alone. > Be kind. Don't be snarky. Converse curiously; don't cross-examine. Edit out swipes. It's a lovely thought.
    - protocolture 2y ago
causality0 2y ago
Morally justified or not, it's really hard to feel bad for someone who stuck their dick in a bear trap when when we all stood there screaming "don't stick your dick in that bear trap" so loudly blood shot from our eye sockets. The Internet Archive doesn't deserve to go down like this, and regardless of his long history of fine efforts, it doesn't deserve to be run by that God damned idiot.
davexunit 2y ago
> trumped the rights of authors and publishers Oh no, won't someone think of the rights of the poor poor publishers :(((
tiahura 2y ago
It echos of the debacle at Mozilla. A critical nonprofit captured by an egomaniac ceo who hijacks the organization for grift or their personal crusade.
ekianjo 2y ago
> trumped the rights of authors and publishers, the ever expanding rights that nobody voted for and that are passed by and for lobbies?
protocolture 2y ago
Theres all that, but on the other hand, hes doing literally nothing wrong.
authorfly 2y ago
Well what he did had some value. It showed me that somebody else in that position can share my beliefs about how the system should function. "[IA] have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society" - to what extent has this had any effect on those services on WayBack machine? Does it not still collect and load a webpage today just as it did in 2015? The downside loss was low here, the upside was worth it, even if the approach was unlikely to every work. It could lead to change in 100 years. That's important.
Y_Y 2y ago
> It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being. Who's this asshole who hates books and authors and the law? Evidently, reasonable people differ in opinion on this topic. It's fine that you disagree with what Kahle has done, so do I, but I would have found your comment more persuasive and interesting if you didn't reduce your opposition to a caricature.
renewiltord 2y ago
A lot of people say this about Brewster Kahle but nobody else started the Internet Archive. Even on its own people could have fought it on copyright violation grounds. The reality is that everyone thinks “I would have sold bitcoin at $70k if I bought it for $100” but anyone who would have sold would have sold at $1k. The only guys who actually ride it from $100 to $70k are the true believer types. And you’re not going to convince them that $70k is the top. It’s the same way. He was always going to push the limit. That’s how we got IA. Nah, I’m running an ArchiveTeam warrior. I’m team Brewster. Let’s go!
istanbullu 2y ago
The Internet Archive should just relocate to a less authoritarian jurisdiction. It would solve the problem.
- account42 2y ago
  Which jurisdiction do you have in mind? Russia? China? There are few others that don't have similar copyright laws to the US or won't bend quickly to US demands.
SkyBelow 2y ago
>Kahle portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians (see https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st...). It's not. I'm not sure one should be so certain on this. I don't intend to suggestion it is an intentional action, but I do find that libraries are inherently at odds with how most of copyright otherwise works. There is a tension in this relationship and one that is likely pushing towards libraries becoming illegal for new forms of media. A common sentiment I've seen, expressed for different reasons by different people, is that if libraries didn't already exist, they would be illegal to create. This is part of the larger role copyright plays in society, from being used as a legal hammer to handle AI issues (as in, when all you have is a hammer, everything looks like a nail) to newer digital media being sold in a way where one can't easily share what they own (if you even can call it owning at this point).
gigel82 2y ago
I also have a personal gripe with the Wayback Machine; there is absolutely no way to get something removed once they archive it (despite the data including accidentally leaked PII for example - which can cause actual harm to someone). Not only do they ignore robots.txt, they ignored all emails sent to info@archive.org from the actual domain in question which I owned, with a link to a URL on the domain asking them to remove it. I can understand wanting to preserve some large website's article that is of public interest but this is just malicious / dangerous. It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content.
- account42 2y ago
  > It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content. It took you two years and a lawyer to literally fill out a form? If anything, the IA removes too much content and should only do the minimum required by law (and fight it even there where possible).
  - gigel82 2y ago
    What form? There is no form. I just sent emails into the void per their request for more than a year: https://help.archive.org/help/how-do-i-request-to-remove-something-from-archive-org-2/ https://help.archive.org/help/how-do-i-request-to-remove-som... After nothing worked I had to draft an official legal letter, which also took several months to get acted on.
account42 2y ago
I agree CDL was a mistake. The IA should have never embraced DRM and shared as much without it as possible, silently archiving the rest for saner future generations that don't let so-called IP-owners restrict their free speech.
gojomo 2y ago
This is an absurdly strained & non-factual summary of the history. >one man's seemingly fanatical conviction against the law Reviewing the large number of amicus briefs on the Archive's side, from the get-go through appeals, refutes the idea this was a solitary crusade: https://blog.archive.org/2023/12/29/friend-of-the-court-briefs-filed-in-internet-archives-appeal/ https://blog.archive.org/2023/12/29/friend-of-the-court-brie... Those supporting IA's position range from the American Library Association (the world's oldest & largest library advocacy group), to individual libraries of all kinds, to expert IP law academics, to public-interest advocates like the Center for Democracy & Technology or Public Knowledge, to fellow open-culture organizations like Wikipedia, Creative Commons, & Project Gutenberg. Also: lots of book authors, including those with commercial success & titles inside the IA's lending program. The IA was in the leading position, sure – but taking the arrows for a very large group of like-minded organizations sharing a stance against copyright maximalism. Personalizing it as one man's radical crusade is odd. >asked to stop… tried to open a dialogue Saying no to the copyright maximalists, even through their claims of absolute control & threatened or actual lawsuits, has been essential in establishing the actual settled law around copyright. What sort of 'dialogue' can be had when the sides have incompatible views of the law: one believing in a permissionless right to do an exact something (supported by reasoning & precedent) and another asserting an absolute right to prohibit that exact same thing (supported by other reasoning & precedent)? Each side needs to enact their beliefs then resolve it in the courts. HathiTrust - a major consortium of university libraries – was the named defendent in an earlier lawsuit by some of the same copyrightholder interests with regard to Google Books scanning. (It's also an ally of the Internet Archive in this fight.) Should HathiTrust have rolled over when "asked to stop" scanning by rightsholders? Absolutely not: they won in court & on appeal. If Sony hadn't appealed the Betamax decision to the Supreme Court, VCRs & everything since that let people record their own copies of TV programs could've been "illegal". A mere 'dialogue' with TV broadcasters or moviemaker trade associations couldn't have done anything: the issues had to be ruled on by legal authorities. >In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive. I agree that the overheated rhetoric from both the plaintiffs (about giant but never-proven sdamages) and defendants (about how central these principles are to IA) may have created that impression in some coverage – but the idea this was ever existential for IA, in legal costs or potential damages, is pure paranoid fantasy. As a non-profit, the IA files detailed form 990s with the IRS showing income & expenses. I challenge you to find any hint of legal costs changing other operations in the years since the lawsuit was filed (2020) and appeals launched. I suspect, but have no inside info, that much of the costs were borne by other advocacy & legal organizations/donors that wanted to pursue a ruling on these particular essential issues. That is: this battle was fought with resources targeted for this program and these legal principles, not resources diverted from other programs. As part of private settlement with the plaintiffs in 2023 – not any court monetary judgment against it – the IA agreed to make some undisclosed payment but ALSO had permission from the plaintiffs for IA to continue to pursue appeals (like the one just ruled-upon) on the issues important to IA, at no risk of further damages. That's hardly the "scorched earth" plaintiff behavior implied by some hyped coverage imagining an IA bankruptcy, or other threats to its ability "to survive". This was always a dispute on some copyright principles; it will be a loss to the public if IA's vision of format-shifted digital lending is ultimately ruled illegal, but no impact to IA's other long-established programs. Finally: this may not be the final chapter & ruling on these issues. Sony had to appeal all the way to the Supreme Court before getting the Betamax ruling in 1984. Google had to appeal all the way to the Supreme Court before getting a ruling that API reimplementation could be fair use in 2021. I don't know if IA will judge it as worthwhile to appeal. But they might! And before those other historic final appeals, the preceding judgements seemed pretty definitive and bleak for the ultimate victors.
EVa5I7bHFq9mnYK 2y ago
What is CDL?

dannyobrien 2y ago

I disagree with this assessment on many levels, but I think the most important challenge I can make is to the idea that Brewster Kahle is a rogue actor, who in some sense mis-interpreted the mission and strategy of the Internet Archive. For those of you who are just learning that name from this lawsuit, here's his wikipedia page: https://en.wikipedia.org/wiki/Brewster_Kahle https://en.wikipedia.org/wiki/Brewster_Kahle Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws. We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle. So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism. So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas. If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done. So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist. That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done. But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".

sumeno 2y ago
> Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? Lots of libraries do free digital lending of ebooks in a legal way and have done so for a long time
- blendergeek 2y ago
  The publishers charge the libraries per lending event. This is nothing like lending physical books and the publishers fully control it.
- pk-protect-ai 2y ago
  And now there will be a legal precedent to shut down all CDLs of these "lots of libraries".
  - jasode 2y ago
    >And now there will be a legal precedent to shut down all CDLs of these "lots of libraries" No, it's a different situation. In contrast, the government public libraries legitimately purchased ebook licenses (aka "renting") from the publishers and then "loaned" out a limited # of simultaneous copies in a legal manner. The book publishers approved this arrangement. The Internet Archive didn't do that. Instead, they "loaned" out digital scans of books they did not buy ebook licenses for and took it upon themselves to name it "Controlled Digital Lending". This method circumvents the book publishers which is the opposite of what government public libraries did. EDIT reply to: >If they have the physical book how is this any different, When I wrote, "different situation" , it's about the "legal difference" and not "philosophical difference". - situation with govt public libraries: The book publishers did not sue the public libraries that legitimately purchase ebook licenses from them. The publishers receive payments from that arrangement so there's no lawsuit for "copyright violation". - situation with Internet Archive: The book publishers sued IA for copyright violation by lending books it never purchased ebook licenses for. The circuit appeals court sided with the book publishers unanimously by a vote of 3-to-0. Those 2 situations above are different legally such that whatever precedent that's set by IA losing the case doesn't affect govt libraries that have been purchasing legitimate ebook licenses. I was trying to clarify gp's incorrect statement which could spread misinformation: "And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"

jrochkind1 2y ago

So, this case was not about CDL (Controlled Digital Lending). It was about DL with the "C" removed. Specifically the IA's previous CDL program only lent out one electronic copy at a time per physical copy held, and this case is about a program at beginning of pandemic where they suspended these limits. There could still be appeals in store for this case, but regardless of the outcome of this case, CDL could still be quite legal (and I think ought to be -- libraries ability to lend out books without publisher permission or license has been a huge gain for society, and I think must be able to continue in the electronic realm; and I think there are good legal arguments for it, on extension of first-sale doctrine to electronic realm and on fair use). It was not helpful for the case of CDL to have this pretty bad ("uncontrolled digital lending"?) case decided first though, I agree this was not a very strategic move.

zerocrates 2y ago
They lost here on both regular CDL and the National Emergency Library "uncontrolled" variant. The court's decision and conclusion is almost entirely about just regular CDL: "This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no." (emphasis added)
- jrochkind1 2y ago
  Well, that is a disaster. I'll have to read more, I hadn't realized that.
  - zerocrates 2y ago
    Yeah the posture and discussion on that is basically "we don't even need to go into the NEL because CDL as a whole isn't fair use." There are some limiting principles... the lower decision only covered books that were "in print" in eBook form... but the rationale here is quite broad and would easily stretch beyond these specifics. (There's a small amount of analysis related to whether the digitization involved in CDL is "transformative" that rests on official publisher eBooks being available, but there's a strong overall impression that the decision would come out the same way for things not already available digitally.)

teruakohatu 2y ago

> In his many interviews with U.S. media, he portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians. It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being. If IA had won, IA would be hailed as a cultural hero. They hit and they missed. Claiming Brewster Kahle is against "the people who work very hard to bring new books into being" is unfair. The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years, the copyright will probably be extended again.

tptacek 2y ago
The further you take a federal case the more precedent you create. The infinitesimal odds IA seemed to have at winning this case have to be weighed against the precedent they have created that may bind on future controlled digital lending cases with better facts. What IA did here wasn't costless.
- creer 2y ago
  > future controlled digital lending cases with better facts. Was anyone else doing anything? Or standing ready to do anything?
  - tptacek 2y ago
    I don't know, but anybody who wasn't doing anything and wasn't standing to do anything was more valuable to digital rights than the people who appealed this case to the 2nd Circuit, in that none of them actually damaged digital rights.
    - creer 2y ago
      I don't know. From the point of view of the appeal and mechanical precedent specifically, maybe, maybe not. At first read, the decision rationale seems somewhat measured and interesting - it doesn't just say "Declined". And meanwhile, IA kept the issue present and discussed and with some attempt at doing something different - even in the appeal.

msla 2y ago

CDL is how physical libraries work: They buy a book and then lend it out multiple times to multiple people, on a one-in one-out basis, who then do not have to buy the book themselves. They even repair books to avoid purchasing new ones again. Do you think physical libraries harm the people who bring books into being?

tptacek 2y ago
Physical libraries lend actual physical objects. They don't copy anything. This is a copyright case.
- msla 2y ago
  The effect on authors is the same: A book is circulated multiple times after being bought once.
  - tptacek 2y ago
    That's not how the law works. Again: this is a copyright case.
    - doctorpangloss 2y ago
      “The only moral laws are my laws.”
      - pessimizer 2y ago
        Who is this a quote from, and who is talking about "moral laws?"
    - JoshTriplett 2y ago
      I don't think people here are confused about how the law works. I think many people here feel the law shouldn't work that way. Stating it explicitly: while the NEL was dubious, CDL should have been 100% legal, and it's a massive disappointment to see it ruled against.

doctorpangloss 2y ago

[flagged]

tptacek 2y ago
He just created a really terrible 2nd Circuit precedent. He could have avoided that easily. How was this his job?
- thaumasiotes 2y ago
  Not setting a terrible precedent is actually the judge's job.
  - tptacek 2y ago
    Not so much? The judge applied the law to the facts. I don't think this is an especially controversial case, legally.
    - thaumasiotes 2y ago
      If that's what you think, then the precedent is neither terrible nor interesting.
      - tptacek 2y ago
        It's bad if you want people to be able to do 1:1 lending of digitized books. It's fine if you don't care. The point is that it didn't need to happen; there was no reason to appeal the case. It was a loser to begin with.
        thaumasiotes 2y ago
        > It's bad if you want people to be able to do 1:1 lending of digitized books. How? By your argument, this was already clearly illegal. What did the precedent change?

tombert 2y ago

This is why I stopped donating to IA, and I will not donate until they get new leadership. I'm a very big supporter of a lot of what IA does, but I feel if I donate, my money is just going to fund more and more legal defenses because Brewster Kahle is being stubborn, and I'm afraid it's going to lead to the entire Archive being shut down. I've mentioned this before, but there are lots of cases where IA will let you download full video games for the switch that are still being actively sold [1]. The same applies to a lot of movies and TV shows, available via torrents no less. Before someone gives me a lecture about data harboring laws and fair use, I know that it is technically on the copyright holder to issue takedown requests for infringing material, but even still, I think they'd be smart to be a bit proactive about this. If I know that the Internet Archive is an easy place to get pirated material, then I'm quite confident that their staff does as well. If there's even one employee email that implies that they know about pirated content but didn't bother taking it down, then I think that's grounds for a lawsuit (though I'm not a lawyer). Much as I respect him for founding IA, I think that Kahle needs to be replaced as a leader. [1] I'm not going to link it here because I'm not sure HN's policy on potentially legally dubious material, but it is not hard to find.

jrflowers 2y ago
> IA will let you download full video games for the switch that are still being actively sold [1] I am not seeing that anywhere. I see a file called “My Nintendo Switch games collection” and it is a big jpeg photo of a bookshelf. Is this what you mean?
- opan 2y ago
  It's harder to find them than I expected, but one search with a result is "super mario wonder nsp". I had the advantage of knowing the format(s) Switch game dumps come in, though, so the average person might not find much.
  - jrflowers 2y ago
    I’m getting a “no results found” response from that search. Maybe it has already been taken down?

fngjdflmdflg 2y ago

You also forgot the national emergency library thing which only made his position more unworkable with current copyright law.

Sysreq2 2y ago

We’ve been here before: you can’t punish someone into being your consumer. Someone who wants your product at the price you offer it will ultimately pay for it. Short sighted business decisions ultimately hurt the industry more than accepting the need to change your business model.

codedokode 2y ago

I think you misunderstand the situation. If you haven't read the lawsuit [1] I suggest you look through it. Basically, there is an established practice for lending printed books: the library buys a book and lends it to patrons without permission from the copyright owner. However, publishers believe that digital books are different from physical books and established practice doesn't apply to them; they believe that lending should be made at publishers' terms, to be specific: - only "academic libraries" (chosen by publishers) may lend digital books - they may lend them only to the members, for example, only students of the university, not to random people - library must buy a special "library license", which might have arbitrary price and arbitrary terms - the license has a limited term: sometimes it is 1-2 years, sometimes it is 26 lendings, after which the library must purchase a new license - the library must use publishers-approved DRM which might not work on some devices To enforce these rules publishers use DRM that prevents anyone from buying a digital book and lending it to other person (which was possible with digital books). So, in publishers view new technology means new rules and new opportunities. The IA found a workaround: they bought physical books, scanned them and lent those digital copies instead of a physical book, provided that only one user can read the same book at the same time. They acted like a library but using remote access to a digital copy. The lender might read the book on IA's website enforcing the terms of use or download a DRM-protected PDF. The lawsuit is about whether IA actions are legal or not (i.e. if digital books may be lent like physical books). Given that in future there will be less and less physical books, if publishers win, it will mean that libraries will not be able to lend contemporary books at the same terms and costs they lent physical books. There are several complications: dubious partnerships by IA with libraries to increase the number of lent simultaneously copies; dubious decision to remove limits during COVID pandemic. However, there are facts that play in IA favour: there are precedents when making digital copies was considered legal (by Google Books), and there are a 17 US Code 108 [2] and 109 [3], which allows some exemptions from copyright for libraries and archives. [1] https://www.documentcloud.org/documents/23723923-hachette-v-internet-archive-ruling https://www.documentcloud.org/documents/23723923-hachette-v-... [2] https://www.law.cornell.edu/uscode/text/17/108 https://www.law.cornell.edu/uscode/text/17/108 [3] https://www.law.cornell.edu/uscode/text/17/109 https://www.law.cornell.edu/uscode/text/17/109

pie_flavor 2y ago

naikrovek 2y ago

Not gonna define “CDL”? Ok, “Commercial Drivers License” it is.

FridgeSeal 2y ago
As far as I can tell (these are all new acronyms to me too), they stand for: CDL: Controlled Digital Lending NEL: National Emergency Lending.

kylebenzle 2y ago

If all information wants to and should be free than how can freeing information ever be wrong?

matwood 2y ago

I wish people would stop saying they were doing CDL. CDL means being able to lend out a digital copy of a physical book in place of the physical book. The findings in the case showed that IA had lost complete control of the physical book so at that point they were simply breaking copyright. Add in that they steered people to their own used book store, and this case never had a chance.

HDThoreaun 2y ago
The findings in this case also include CDL being illegal.

JumpCrisscross 2y ago

> hope the organization can survive Maybe it shouldn’t. There is value in asking if there is a better home for those projects.

protocolture 2y ago
Maybe a European country that gives much less shit?
- 7bit 2y ago
  Europe is not a third world country, where nobody gives a shit. It has laws and regulations like the US. Educate yourself.
  - mdp2021 2y ago
    It can easily have much better laws.
    - account42 2y ago
      It can but when it comes to copyright, many EU countries are not better at all.
  - porksoda 2y ago
    I get it I do, but please can you try moderate your tone? First post I open, and I already am faced with this kind of feeling. Now my breakfast will be just that little bit more bitter. Be kind. I think it was that dang fellow who said it. Yip here it is: https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html In another life I'd be clever with you and say something to the effect that you should educate your own self, and read them. And then we would have our very own little reddit subthread here for our selves, and it would be my fault, and mine alone. > Be kind. Don't be snarky. Converse curiously; don't cross-examine. Edit out swipes. It's a lovely thought.
  - protocolture 2y ago

causality0 2y ago

Morally justified or not, it's really hard to feel bad for someone who stuck their dick in a bear trap when when we all stood there screaming "don't stick your dick in that bear trap" so loudly blood shot from our eye sockets. The Internet Archive doesn't deserve to go down like this, and regardless of his long history of fine efforts, it doesn't deserve to be run by that God damned idiot.

davexunit 2y ago

> trumped the rights of authors and publishers Oh no, won't someone think of the rights of the poor poor publishers :(((

tiahura 2y ago

It echos of the debacle at Mozilla. A critical nonprofit captured by an egomaniac ceo who hijacks the organization for grift or their personal crusade.

ekianjo 2y ago

> trumped the rights of authors and publishers, the ever expanding rights that nobody voted for and that are passed by and for lobbies?

protocolture 2y ago

Theres all that, but on the other hand, hes doing literally nothing wrong.

authorfly 2y ago

Well what he did had some value. It showed me that somebody else in that position can share my beliefs about how the system should function. "[IA] have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society" - to what extent has this had any effect on those services on WayBack machine? Does it not still collect and load a webpage today just as it did in 2015? The downside loss was low here, the upside was worth it, even if the approach was unlikely to every work. It could lead to change in 100 years. That's important.

Y_Y 2y ago

> It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being. Who's this asshole who hates books and authors and the law? Evidently, reasonable people differ in opinion on this topic. It's fine that you disagree with what Kahle has done, so do I, but I would have found your comment more persuasive and interesting if you didn't reduce your opposition to a caricature.

renewiltord 2y ago

A lot of people say this about Brewster Kahle but nobody else started the Internet Archive. Even on its own people could have fought it on copyright violation grounds. The reality is that everyone thinks “I would have sold bitcoin at $70k if I bought it for $100” but anyone who would have sold would have sold at $1k. The only guys who actually ride it from $100 to $70k are the true believer types. And you’re not going to convince them that $70k is the top. It’s the same way. He was always going to push the limit. That’s how we got IA. Nah, I’m running an ArchiveTeam warrior. I’m team Brewster. Let’s go!

istanbullu 2y ago

The Internet Archive should just relocate to a less authoritarian jurisdiction. It would solve the problem.

account42 2y ago
Which jurisdiction do you have in mind? Russia? China? There are few others that don't have similar copyright laws to the US or won't bend quickly to US demands.

SkyBelow 2y ago

>Kahle portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians (see https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st...). It's not. I'm not sure one should be so certain on this. I don't intend to suggestion it is an intentional action, but I do find that libraries are inherently at odds with how most of copyright otherwise works. There is a tension in this relationship and one that is likely pushing towards libraries becoming illegal for new forms of media. A common sentiment I've seen, expressed for different reasons by different people, is that if libraries didn't already exist, they would be illegal to create. This is part of the larger role copyright plays in society, from being used as a legal hammer to handle AI issues (as in, when all you have is a hammer, everything looks like a nail) to newer digital media being sold in a way where one can't easily share what they own (if you even can call it owning at this point).

gigel82 2y ago

I also have a personal gripe with the Wayback Machine; there is absolutely no way to get something removed once they archive it (despite the data including accidentally leaked PII for example - which can cause actual harm to someone). Not only do they ignore robots.txt, they ignored all emails sent to info@archive.org from the actual domain in question which I owned, with a link to a URL on the domain asking them to remove it. I can understand wanting to preserve some large website's article that is of public interest but this is just malicious / dangerous. It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content.

account42 2y ago
> It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content. It took you two years and a lawyer to literally fill out a form? If anything, the IA removes too much content and should only do the minimum required by law (and fight it even there where possible).
- gigel82 2y ago
  What form? There is no form. I just sent emails into the void per their request for more than a year: https://help.archive.org/help/how-do-i-request-to-remove-something-from-archive-org-2/ https://help.archive.org/help/how-do-i-request-to-remove-som... After nothing worked I had to draft an official legal letter, which also took several months to get acted on.

account42 2y ago

I agree CDL was a mistake. The IA should have never embraced DRM and shared as much without it as possible, silently archiving the rest for saner future generations that don't let so-called IP-owners restrict their free speech.

gojomo 2y ago

This is an absurdly strained & non-factual summary of the history. >one man's seemingly fanatical conviction against the law Reviewing the large number of amicus briefs on the Archive's side, from the get-go through appeals, refutes the idea this was a solitary crusade: https://blog.archive.org/2023/12/29/friend-of-the-court-briefs-filed-in-internet-archives-appeal/ https://blog.archive.org/2023/12/29/friend-of-the-court-brie... Those supporting IA's position range from the American Library Association (the world's oldest & largest library advocacy group), to individual libraries of all kinds, to expert IP law academics, to public-interest advocates like the Center for Democracy & Technology or Public Knowledge, to fellow open-culture organizations like Wikipedia, Creative Commons, & Project Gutenberg. Also: lots of book authors, including those with commercial success & titles inside the IA's lending program. The IA was in the leading position, sure – but taking the arrows for a very large group of like-minded organizations sharing a stance against copyright maximalism. Personalizing it as one man's radical crusade is odd. >asked to stop… tried to open a dialogue Saying no to the copyright maximalists, even through their claims of absolute control & threatened or actual lawsuits, has been essential in establishing the actual settled law around copyright. What sort of 'dialogue' can be had when the sides have incompatible views of the law: one believing in a permissionless right to do an exact something (supported by reasoning & precedent) and another asserting an absolute right to prohibit that exact same thing (supported by other reasoning & precedent)? Each side needs to enact their beliefs then resolve it in the courts. HathiTrust - a major consortium of university libraries – was the named defendent in an earlier lawsuit by some of the same copyrightholder interests with regard to Google Books scanning. (It's also an ally of the Internet Archive in this fight.) Should HathiTrust have rolled over when "asked to stop" scanning by rightsholders? Absolutely not: they won in court & on appeal. If Sony hadn't appealed the Betamax decision to the Supreme Court, VCRs & everything since that let people record their own copies of TV programs could've been "illegal". A mere 'dialogue' with TV broadcasters or moviemaker trade associations couldn't have done anything: the issues had to be ruled on by legal authorities. >In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive. I agree that the overheated rhetoric from both the plaintiffs (about giant but never-proven sdamages) and defendants (about how central these principles are to IA) may have created that impression in some coverage – but the idea this was ever existential for IA, in legal costs or potential damages, is pure paranoid fantasy. As a non-profit, the IA files detailed form 990s with the IRS showing income & expenses. I challenge you to find any hint of legal costs changing other operations in the years since the lawsuit was filed (2020) and appeals launched. I suspect, but have no inside info, that much of the costs were borne by other advocacy & legal organizations/donors that wanted to pursue a ruling on these particular essential issues. That is: this battle was fought with resources targeted for this program and these legal principles, not resources diverted from other programs. As part of private settlement with the plaintiffs in 2023 – not any court monetary judgment against it – the IA agreed to make some undisclosed payment but ALSO had permission from the plaintiffs for IA to continue to pursue appeals (like the one just ruled-upon) on the issues important to IA, at no risk of further damages. That's hardly the "scorched earth" plaintiff behavior implied by some hyped coverage imagining an IA bankruptcy, or other threats to its ability "to survive". This was always a dispute on some copyright principles; it will be a loss to the public if IA's vision of format-shifted digital lending is ultimately ruled illegal, but no impact to IA's other long-established programs. Finally: this may not be the final chapter & ruling on these issues. Sony had to appeal all the way to the Supreme Court before getting the Betamax ruling in 1984. Google had to appeal all the way to the Supreme Court before getting a ruling that API reimplementation could be fair use in 2021. I don't know if IA will judge it as worthwhile to appeal. But they might! And before those other historic final appeals, the preceding judgements seemed pretty definitive and bleak for the ultimate victors.

EVa5I7bHFq9mnYK 2y ago

What is CDL?