4 ms·

The effect on authors is the same: A book is circulated multiple times after being bought once.

by msla 2y ago

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.
  - tptacek 2y ago
    Maybe a case with a better fact pattern (for instance: lending only books without competing publisher epubs) might have had a better chance, but I think people are getting themselves tied up in knots about IA's intent, which is just one factor in a fair-use analysis. The law cares deeply about copies, not about circulation or access. Further: it seems weird to blame judges for applying what is in fact very straightforward law. Seems like your problem is with Congress!
    - JoshTriplett 2y ago
      Fair use is not "very straightforward law", and is deliberately a fuzzy line; I do in fact think CDL should have passed a fair-use analysis. Separately I also think the law should improve.
      - tptacek 2y ago
        In which part of this case were the judges required to stretch at all? The decision is conveniently broken down across the 4-part fair use test.
        JoshTriplett 2y ago
        It seems like you're making a "what happened" argument in response to a "what should have happened" argument. It's possible to make an argument in favor of this being fair use, and it's possible to make an argument against fair use. The (subjective) decision here was the latter; it doesn't preclude the possibility of the former. I'm not arguing that it was a stretch to say "no"; I'm arguing that it also wasn't a stretch to say "yes". In terms of the fair use argument that could have been made, the Internet Archive's CDL obviously failed "nature of" and "amount and substantiality of", but I think it did not inherently fail "purpose and character" or "effect of the use", despite the decision saying it did. In terms of concrete legal changes that could and should happen: "right of first sale" should be updated for digital, and include both "right to do format-shifting" (e.g. scanning physical to digital) and "right to lend copies digitally" (just like first-sale already explicitly allows physically).
        tptacek 2y ago
        I don't think you can reasonably make a "the law is not as simple as you say it is" argument and shore it up with a "the law should be different" argument. The 4 fair-use test questions: * How transformative the derived work is * How much of the work is copied * The expressive nature of the work * The impact the derivation has on the market for the original The Internet Archive: * Copied works and made them directly available, deliberately avoiding transformation of any sort other than their accessibility. * Copied them in their entirety. * Exclusively copied books, the expressive work most legible to copyright law since the time of the framers. * Made them available as a substitute for publisher-provided ebooks. Any of these factors is enough to tank a fair use case. IA presented just about the worst possible fact pattern for all of them. This was an easy, straightforward decision to read. I didn't notice any point at which the 2nd Circuit had to stretch to reach the conclusion they did.
  - Ensorceled 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. No, a LOT of people in these very threads are arguing that the CDL IS 100% legal and that the ruling is ... well, many things.
doctorpangloss 2y ago
Are you suggesting that the law reflects an entrenched, emotional celebration of an antique, traditional notion of a library, and not something rational and consistent about lending, copyright and the economics of writing? Apostasy! I want this conversation to only be strictly about what the case law says, so that I may tell you about it “again” and again!
- tptacek 2y ago
  No, the problem is that the preceding analysis is a category error, in that it assumes the law has a purpose of minimizing the circulation of an individual book. It does not, which is why traditional libraries weren't threatened by it.
  - doctorpangloss 2y ago
    I don’t know, it doesn’t take a genius or a law degree to understand that maintaining a one to one ratio of physical copies to digitally lent books is the same shit as a regular library but more convenient. It stands to reason that the law shouldn’t preclude technological advances that make libraries more convenient. The reason traditional libraries aren’t threatened by the law is cultural. There are states that ban books my dude, it’s all cultural. I wonder why judges are anti-library. Although I can understand why they are generally anti-technology: the law school people have a lot of beefs, and beefs with the compsci people rank highly. And before you start telling me all the reasons why “beefs” aren’t a central part of the character of judges and therefore law in this country, you should maybe read more about guys like Clarence Thomas and Samuel Alito.
    - tptacek 2y ago
      Judges aren't anti-library. People care a lot less about "compsci" culture than "compsci" people think they do. We simply aren't that important.
      - doctorpangloss 2y ago

The effect on authors is the same: A book is circulated multiple times after being bought once.

by 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.
- tptacek 2y ago
  Maybe a case with a better fact pattern (for instance: lending only books without competing publisher epubs) might have had a better chance, but I think people are getting themselves tied up in knots about IA's intent, which is just one factor in a fair-use analysis. The law cares deeply about copies, not about circulation or access. Further: it seems weird to blame judges for applying what is in fact very straightforward law. Seems like your problem is with Congress!
  - JoshTriplett 2y ago
    Fair use is not "very straightforward law", and is deliberately a fuzzy line; I do in fact think CDL should have passed a fair-use analysis. Separately I also think the law should improve.
    - tptacek 2y ago
      In which part of this case were the judges required to stretch at all? The decision is conveniently broken down across the 4-part fair use test.
      - JoshTriplett 2y ago
        It seems like you're making a "what happened" argument in response to a "what should have happened" argument. It's possible to make an argument in favor of this being fair use, and it's possible to make an argument against fair use. The (subjective) decision here was the latter; it doesn't preclude the possibility of the former. I'm not arguing that it was a stretch to say "no"; I'm arguing that it also wasn't a stretch to say "yes". In terms of the fair use argument that could have been made, the Internet Archive's CDL obviously failed "nature of" and "amount and substantiality of", but I think it did not inherently fail "purpose and character" or "effect of the use", despite the decision saying it did. In terms of concrete legal changes that could and should happen: "right of first sale" should be updated for digital, and include both "right to do format-shifting" (e.g. scanning physical to digital) and "right to lend copies digitally" (just like first-sale already explicitly allows physically).
        tptacek 2y ago
        I don't think you can reasonably make a "the law is not as simple as you say it is" argument and shore it up with a "the law should be different" argument. The 4 fair-use test questions: * How transformative the derived work is * How much of the work is copied * The expressive nature of the work * The impact the derivation has on the market for the original The Internet Archive: * Copied works and made them directly available, deliberately avoiding transformation of any sort other than their accessibility. * Copied them in their entirety. * Exclusively copied books, the expressive work most legible to copyright law since the time of the framers. * Made them available as a substitute for publisher-provided ebooks. Any of these factors is enough to tank a fair use case. IA presented just about the worst possible fact pattern for all of them. This was an easy, straightforward decision to read. I didn't notice any point at which the 2nd Circuit had to stretch to reach the conclusion they did.
- Ensorceled 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. No, a LOT of people in these very threads are arguing that the CDL IS 100% legal and that the ruling is ... well, many things.

doctorpangloss 2y ago

Are you suggesting that the law reflects an entrenched, emotional celebration of an antique, traditional notion of a library, and not something rational and consistent about lending, copyright and the economics of writing? Apostasy! I want this conversation to only be strictly about what the case law says, so that I may tell you about it “again” and again!

tptacek 2y ago
No, the problem is that the preceding analysis is a category error, in that it assumes the law has a purpose of minimizing the circulation of an individual book. It does not, which is why traditional libraries weren't threatened by it.
- doctorpangloss 2y ago
  I don’t know, it doesn’t take a genius or a law degree to understand that maintaining a one to one ratio of physical copies to digitally lent books is the same shit as a regular library but more convenient. It stands to reason that the law shouldn’t preclude technological advances that make libraries more convenient. The reason traditional libraries aren’t threatened by the law is cultural. There are states that ban books my dude, it’s all cultural. I wonder why judges are anti-library. Although I can understand why they are generally anti-technology: the law school people have a lot of beefs, and beefs with the compsci people rank highly. And before you start telling me all the reasons why “beefs” aren’t a central part of the character of judges and therefore law in this country, you should maybe read more about guys like Clarence Thomas and Samuel Alito.
  - tptacek 2y ago
    Judges aren't anti-library. People care a lot less about "compsci" culture than "compsci" people think they do. We simply aren't that important.
    - doctorpangloss 2y ago