6 ms·

This wasn't a case of the estates of dead authors trying to hold onto rights. Working authors were actively being harmed by the activities of the IA through the

This wasn't a case of the estates of dead authors trying to hold onto rights. Working authors were actively being harmed by the activities of the IA through the CDL. Working authors were met with refusals to meet to discuss this issue. I don't think that characterization of Kahle is unfair at all. His position was unreasonable, determined to be illegal, and damaging to people who depend on copyright to license their work.

cmiles74 2y ago
How was the CDL hurting working authors? A library bought the book, paying the publisher and the author. The IA scanned the book for digital lending, this digital copy could only be checked out by one person and only when the physical book was not also checked out. I understand the court decided this wasn't okay. That aside, how was it hurting working authors?
- deleted 2y ago
  [deleted]
- colejohnson66 2y ago
  Maybe not the CDL, but the "national emergency library" that ignored the one-book-per-person limit definitely went too far.
  - cmiles74 2y ago
    This particular ruling deals with the CDL.
    - tptacek 2y ago
      It deals with both, right? Publishers sued over the NEL.
      - cmiles74 2y ago
        Copying text out of the PDF from my phone is not fun! The gist is that since the CDL isn't okay then they don't really need to deal with NEL as it's predicated on the legality of the CDL (pages 15-16). The NEL gets a couple of sentences, the bulk of the ruling is about the CDL
        tptacek 2y ago
        Wasn't NEL the basis of the original suit?
        Teknomancer 2y ago
        Yes! The U.S. Court of Appeals upheld the prior 2023 ruling against IA, the case stemming from the IA's National Emergency Library (NEL) initiative during the COVID-19 pandemic, which allowed users to access digitized books without the usual lending caps. This prompted the lawsuit from several major publishers, who argued that this violated copyright law. The appeals court rejected the IA's argument that its activities fell under the "fair use" doctrine, specifically noting that the IA digital library acted as a substitute for original books, depriving publishers and authors of revenue. While the court acknowledged that the Internet Archive's activities were non-commercial in nature, it still concluded that the wide availability of digitized books due to unregulated replication harmed the market for the original works. This decision has significant implications for the IA’s future operations, potentially limiting its ability to continue its broad digitization efforts without publisher consent. The ruling reinforces the legal rights of publishers and authors to control the reproduction and distribution of their works, even in digital formats. The Internet Archive has few remaining legal options, with the Supreme Court being one of its last possible avenues for appeal. Meanwhile, the organization faces additional lawsuits related to its music digitization efforts, those litigations are ongoing. The ruling today highlights a broader conflict between the rights of creators and the push for wider public access to information, with the court siding firmly with the former. The case sets a strong precedent for how copyright law is applied to digital libraries in the U.S. moving forward.
        boomboomsubban 2y ago
- Lx1oG-AWb6h_ZG0 2y ago
  From TFA: > However, the Internet Archive expanded its library project during the covid-19 pandemic. It launched the National Emergency Library, allowing an unlimited number of people to access the same copies of ebooks. That’s when the publishers banded together to file the lawsuit, targeting both online libraries. The digital copy could be checked out by many people at the same time.
  - s-video 2y ago
    NEL was a brief deviation from the usual CDL one-borrower-at-a-time system. Parent asked how CDL, not NEL, hurt authors.
  - cmiles74 2y ago
    The pandemic lending is a different thing, it's not "CDL".
- healsdata 2y ago
  Because other libraries have licensing agreements that benefit authors on a different basis than "you sold one book to one library". You may argue that that shouldn't be the paradigm, but one library unilaterally changing it denies the authors their say on the change, either through licensing or legislation.
  - codedokode 2y ago
    With physical books the library doesn't need to pay anything to lend it; with digital books it has to pay for every view. Why is it so? Shouldn't the buyers of digital books have the same rights, i.e. the right to re-sell or lend it? As for authors, nothing changes here: libraries lent their physical books without paying before.
    - riffraff 2y ago
      The difference between physical books and digital books is apparently wear https://news.ycombinator.com/item?id=41452031 https://news.ycombinator.com/item?id=41452031
      - iggldiggl 2y ago
        Although at least in the local library that I'm familiar with, wear is nowhere near as severe as what e-book lending licenses might suggest. From a quick search in the US those often seem restricted to two years or twenty-six lends. The former condition seems totally ridiculous (my library has tons of books older than two years) and even the latter seems questionable – from back when they used to stamp the return dates into the books [1], quite a few books had managed 26 lendings without falling apart yet. [1] My favourite library branch in my town is, while associated with the city library system, partly volunteer-run and was consequently the last to computerise its lending system, and therefore kept on using the classic system until I think somewhere around 2010 or so, whereas the rest of the city library had already switched in the 90s.
        RobotToaster 2y ago
- forrestthewoods 2y ago
  > this digital copy could only be checked out by one person and only when the physical book was not also checked out Even if that were the case I don’t think it’s acceptable. Physical used goods have limitations on transfer rate. If you want a used book you have to go to the store. Or have it shipped across the country. I adamantly oppose a global digital pool with instantaneous transfers. In that world you never need to sell more than peak concurrent users. If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food. The same argument applies to “used” digital movies and games. It’s nonsense.
  - Amezarak 2y ago
    > If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food. We have an enormous surplus of content creators and most of the content is not very good. I don't see why we need to structure our economic system such that people must be able to making a living churning out mediocre scifi/romance/mystery novels. If they can, great, but I don't think that's the goal we should be aiming for with copyright. There would still be plenty of novels turned out every year even if copyright did not exist. > In that world you never need to sell more than peak concurrent users. That sounds good to me, and I doubt it's really much more than the number of sales now. Many/most people would still buy their own copy anyway, just as they do today when a new book comes out. Copyright law as structured today is destroying more art than saving it; the number of out-of-print but copyrighted works that are vanishing from human knowledge is astronomical.
    - forrestthewoods 2y ago
      > I doubt it's really much more than the number of sales now Yikes. I can not possibly disrespectfully disagree more with everything you said. Baldur's Gate 3 has sold about 15 million copies. It's peak concurrent user count on Steam is 875,343. A difference of about 20x that will continue to grow as BG3 will sell meaningful copies over the next 10 years. Limiting sales to peak CCU is categorically insane. And deeply illogical. And yes I am talking about a video game because the copyright laws for books and games are the same. I would expect the CCU/sales ratio for most successful books to be even larger than that of games which have a much more hyped launch day.
- mumblemumble 2y ago
  The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers. It also discusses that there is a very good reason why digital libraries don't typically get to have perpetual rights to a work at the retail (or used) price for a print book. Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. The ruling points out that publishers originally sold ebooks to libraries at the same pricing as print books, but abandoned the practice because they discovered that it was not financially sustainable. And that's ultimately where the harm comes in. The IA is trying to create a loophole that subverts the income stream of all the people who work on a book by offering derivative works - which are never fair use; fair use is for transformative works - without paying the market's customary price for acquiring rights to create and distribute derivative works. (As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers".)
  - wbl 2y ago
    IANAL but I don't think the work is legally a derivative any more than a JPEG of the Mona Lisa is. In US law those are the same for copyright. MS Word vs PDF shouldn't matter so neither should this.
    - mumblemumble 2y ago
      The ruling's section on transformativeness explains the distinction. Note that "derivative works" under US copyright law works differently from how it gets defined in typical open source licenses. My understanding is that, for the purposes of determining fair use, a derivative work is substantially the same thing but in a different format. Transformative work must involve significant additional creative contribution "Changing the medium of a work is a derivative use rather than a transformative one." They cite previous case law that holds repackaging a print book as an e-book as a "paradigmatic example of a derivative work." The law also offers some paradigmatic examples of transformative work, such as criticism, commentary and scholarship. Based on all of that, I would guess that, for the purposes of copyright law, a JPEG of a painting is absolutely a derivative work and not a transformative one.
- matwood 2y ago
  If you read the original ruling, IA lost control of the physical book so they weren't actually doing CDL. This is why this case was so frustrating. In order to challenge long standing thought, you need to build an airtight case. Lapses like the above and then steering users to buying used copies from BWB shows IA was not ready for a case.
- rodgerd 2y ago
  I was looking for a clip from a trailer for a film that is available on physical media, streaming, and was in cinemas two years ago. IA had the whole film online as bluray quality rip. What's the difference between the IA and Kim Dotcom at that point?
  - 71bw 2y ago
    >What's the difference between the IA and Kim Dotcom at that point? None. They have, for a long time now, become a good place for outright piracy - both for downloaders and uploaders. It's nice to have such easy access to perfect DVDrips of GTA: SA v1.0 US, but... definitely NOT legal.
    - pbhjpbhj 2y ago
      It's legal to download if you own a copy isn't it? In USA, I mean?
  - klez 2y ago
    I'd say the profit motive. You could argue that donations amount to profit, but that's a line I'd be afraid to cross.
  - pbhjpbhj 2y ago
    You'll also have to ask what's the difference between Google Drive (or any other online file store) and IA here though. I've found plenty of complete copyright works on Google Drive. Do IA respond to removal requests? Did IA staff upload that film? For that, Google Books took works still in copyright and made copies for commercial purposes, they somehow were allowed. The difference with Kim Dotcom is possibly that he sold (!) more movies through his activities.
codedokode 2y ago
This was a case about whether you can do the same things with digital books that you can do with physical ones: re-sell or lend. As I understand, the court decided that you cannot.

cmiles74 2y ago

How was the CDL hurting working authors? A library bought the book, paying the publisher and the author. The IA scanned the book for digital lending, this digital copy could only be checked out by one person and only when the physical book was not also checked out. I understand the court decided this wasn't okay. That aside, how was it hurting working authors?

deleted 2y ago
[deleted]
colejohnson66 2y ago
Maybe not the CDL, but the "national emergency library" that ignored the one-book-per-person limit definitely went too far.
- cmiles74 2y ago
  This particular ruling deals with the CDL.
  - tptacek 2y ago
    It deals with both, right? Publishers sued over the NEL.
    - cmiles74 2y ago
      Copying text out of the PDF from my phone is not fun! The gist is that since the CDL isn't okay then they don't really need to deal with NEL as it's predicated on the legality of the CDL (pages 15-16). The NEL gets a couple of sentences, the bulk of the ruling is about the CDL
      - tptacek 2y ago
        Wasn't NEL the basis of the original suit?
        Teknomancer 2y ago
        Yes! The U.S. Court of Appeals upheld the prior 2023 ruling against IA, the case stemming from the IA's National Emergency Library (NEL) initiative during the COVID-19 pandemic, which allowed users to access digitized books without the usual lending caps. This prompted the lawsuit from several major publishers, who argued that this violated copyright law. The appeals court rejected the IA's argument that its activities fell under the "fair use" doctrine, specifically noting that the IA digital library acted as a substitute for original books, depriving publishers and authors of revenue. While the court acknowledged that the Internet Archive's activities were non-commercial in nature, it still concluded that the wide availability of digitized books due to unregulated replication harmed the market for the original works. This decision has significant implications for the IA’s future operations, potentially limiting its ability to continue its broad digitization efforts without publisher consent. The ruling reinforces the legal rights of publishers and authors to control the reproduction and distribution of their works, even in digital formats. The Internet Archive has few remaining legal options, with the Supreme Court being one of its last possible avenues for appeal. Meanwhile, the organization faces additional lawsuits related to its music digitization efforts, those litigations are ongoing. The ruling today highlights a broader conflict between the rights of creators and the push for wider public access to information, with the court siding firmly with the former. The case sets a strong precedent for how copyright law is applied to digital libraries in the U.S. moving forward.
        boomboomsubban 2y ago
Lx1oG-AWb6h_ZG0 2y ago
From TFA: > However, the Internet Archive expanded its library project during the covid-19 pandemic. It launched the National Emergency Library, allowing an unlimited number of people to access the same copies of ebooks. That’s when the publishers banded together to file the lawsuit, targeting both online libraries. The digital copy could be checked out by many people at the same time.
- s-video 2y ago
  NEL was a brief deviation from the usual CDL one-borrower-at-a-time system. Parent asked how CDL, not NEL, hurt authors.
- cmiles74 2y ago
  The pandemic lending is a different thing, it's not "CDL".
healsdata 2y ago
Because other libraries have licensing agreements that benefit authors on a different basis than "you sold one book to one library". You may argue that that shouldn't be the paradigm, but one library unilaterally changing it denies the authors their say on the change, either through licensing or legislation.
- codedokode 2y ago
  With physical books the library doesn't need to pay anything to lend it; with digital books it has to pay for every view. Why is it so? Shouldn't the buyers of digital books have the same rights, i.e. the right to re-sell or lend it? As for authors, nothing changes here: libraries lent their physical books without paying before.
  - riffraff 2y ago
    The difference between physical books and digital books is apparently wear https://news.ycombinator.com/item?id=41452031 https://news.ycombinator.com/item?id=41452031
    - iggldiggl 2y ago
      Although at least in the local library that I'm familiar with, wear is nowhere near as severe as what e-book lending licenses might suggest. From a quick search in the US those often seem restricted to two years or twenty-six lends. The former condition seems totally ridiculous (my library has tons of books older than two years) and even the latter seems questionable – from back when they used to stamp the return dates into the books [1], quite a few books had managed 26 lendings without falling apart yet. [1] My favourite library branch in my town is, while associated with the city library system, partly volunteer-run and was consequently the last to computerise its lending system, and therefore kept on using the classic system until I think somewhere around 2010 or so, whereas the rest of the city library had already switched in the 90s.
      - RobotToaster 2y ago
forrestthewoods 2y ago
> this digital copy could only be checked out by one person and only when the physical book was not also checked out Even if that were the case I don’t think it’s acceptable. Physical used goods have limitations on transfer rate. If you want a used book you have to go to the store. Or have it shipped across the country. I adamantly oppose a global digital pool with instantaneous transfers. In that world you never need to sell more than peak concurrent users. If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food. The same argument applies to “used” digital movies and games. It’s nonsense.
- Amezarak 2y ago
  > If that were the case then each copy would need to sell for thousands of dollars for content creators to afford food. We have an enormous surplus of content creators and most of the content is not very good. I don't see why we need to structure our economic system such that people must be able to making a living churning out mediocre scifi/romance/mystery novels. If they can, great, but I don't think that's the goal we should be aiming for with copyright. There would still be plenty of novels turned out every year even if copyright did not exist. > In that world you never need to sell more than peak concurrent users. That sounds good to me, and I doubt it's really much more than the number of sales now. Many/most people would still buy their own copy anyway, just as they do today when a new book comes out. Copyright law as structured today is destroying more art than saving it; the number of out-of-print but copyrighted works that are vanishing from human knowledge is astronomical.
  - forrestthewoods 2y ago
    > I doubt it's really much more than the number of sales now Yikes. I can not possibly disrespectfully disagree more with everything you said. Baldur's Gate 3 has sold about 15 million copies. It's peak concurrent user count on Steam is 875,343. A difference of about 20x that will continue to grow as BG3 will sell meaningful copies over the next 10 years. Limiting sales to peak CCU is categorically insane. And deeply illogical. And yes I am talking about a video game because the copyright laws for books and games are the same. I would expect the CCU/sales ratio for most successful books to be even larger than that of games which have a much more hyped launch day.
mumblemumble 2y ago
The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers. It also discusses that there is a very good reason why digital libraries don't typically get to have perpetual rights to a work at the retail (or used) price for a print book. Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. The ruling points out that publishers originally sold ebooks to libraries at the same pricing as print books, but abandoned the practice because they discovered that it was not financially sustainable. And that's ultimately where the harm comes in. The IA is trying to create a loophole that subverts the income stream of all the people who work on a book by offering derivative works - which are never fair use; fair use is for transformative works - without paying the market's customary price for acquiring rights to create and distribute derivative works. (As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers".)
- wbl 2y ago
  IANAL but I don't think the work is legally a derivative any more than a JPEG of the Mona Lisa is. In US law those are the same for copyright. MS Word vs PDF shouldn't matter so neither should this.
  - mumblemumble 2y ago
    The ruling's section on transformativeness explains the distinction. Note that "derivative works" under US copyright law works differently from how it gets defined in typical open source licenses. My understanding is that, for the purposes of determining fair use, a derivative work is substantially the same thing but in a different format. Transformative work must involve significant additional creative contribution "Changing the medium of a work is a derivative use rather than a transformative one." They cite previous case law that holds repackaging a print book as an e-book as a "paradigmatic example of a derivative work." The law also offers some paradigmatic examples of transformative work, such as criticism, commentary and scholarship. Based on all of that, I would guess that, for the purposes of copyright law, a JPEG of a painting is absolutely a derivative work and not a transformative one.
matwood 2y ago
If you read the original ruling, IA lost control of the physical book so they weren't actually doing CDL. This is why this case was so frustrating. In order to challenge long standing thought, you need to build an airtight case. Lapses like the above and then steering users to buying used copies from BWB shows IA was not ready for a case.
rodgerd 2y ago
I was looking for a clip from a trailer for a film that is available on physical media, streaming, and was in cinemas two years ago. IA had the whole film online as bluray quality rip. What's the difference between the IA and Kim Dotcom at that point?
- 71bw 2y ago
  >What's the difference between the IA and Kim Dotcom at that point? None. They have, for a long time now, become a good place for outright piracy - both for downloaders and uploaders. It's nice to have such easy access to perfect DVDrips of GTA: SA v1.0 US, but... definitely NOT legal.
  - pbhjpbhj 2y ago
    It's legal to download if you own a copy isn't it? In USA, I mean?
- klez 2y ago
  I'd say the profit motive. You could argue that donations amount to profit, but that's a line I'd be afraid to cross.
- pbhjpbhj 2y ago
  You'll also have to ask what's the difference between Google Drive (or any other online file store) and IA here though. I've found plenty of complete copyright works on Google Drive. Do IA respond to removal requests? Did IA staff upload that film? For that, Google Books took works still in copyright and made copies for commercial purposes, they somehow were allowed. The difference with Kim Dotcom is possibly that he sold (!) more movies through his activities.

codedokode 2y ago

This was a case about whether you can do the same things with digital books that you can do with physical ones: re-sell or lend. As I understand, the court decided that you cannot.