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Hachette vs. Internet Archive: We're Still Fighting for Fair Use
- ranger_danger 2y ago> Similar to a photocopy or resale of a book, the publisher and author were paid when their work was purchased or acquired. What do the big publishers want to come after next – used bookstores? Do they not understand what copyright means? They are not allowed to make a _copy_ of a book without permission. Traditional libraries and bookstores do not do that... it is a very important distinction that they either seem completely oblivious to, or are intentionally playing dumb. Or they're somehow trying to get the actual definition of a "copy" changed. Don't get me wrong, I'm all for IA and don't have anything against them... but in this case the court upholds that digital copies are still copies, and thus this is still copyright infringement.
- Dalewyn 2y agoIt is impossible to make the Internet Archive understand copyright when their entire business model relies on not understanding it.
- Phiwise_ 2y agoAlternatively, could their business model be understanding it and naking the wrong choice anyway? They've been e-begging of this lengthy ordeal something fierce the whole time, and now that they've lost seem to have straightaway launched into setting the whole thing up again. Putting their archive materials in perpetual danger seems to generate perpetual sympathy after making themselves the far and away leader in their sector. Reminds of what a lot of other sites have been doing.
- ranger_danger 2y agoInteresting perspective. I suppose it's possible they could be doing this on purpose just to get more attention/money... but I don't know if they're really that smart. If that were their real intentions, then I think people will call this no different than a typical for-profit tech corporation trying to artificially inflate their worth.
- Phiwise_ 2y agoSorry I wasn't trying to argue that they're raising money specifically to line their own pockets. Maybe they want to branch out to other nonprofit internet causes, maybe they've become convinced they need a rainy day fund for the long term of their operation, maybe they're using this case as a lead-in to fubd lobbying and activism, etc. I'm just confident that, whatever the reason is, they know what they're doing to get there. They're not ignorant about the law of the one subject they've been dealing with for decades, and my argument is it's scummy to take your donating users hostage like a for-profit might regardless of why you do it, because nonprofits are given numerous legs up on the risk of competition specifically on the argument they wouldn't behave like this. You could probably even dig up some statements from IA over the years to this effect; they've certainly associated officially with peiple who said so all the time. If the field were even they would at least be taxed on whatever they're collecting money for like for-profits are, and that money could pay for the court process of batting down their inevitable bunk. Instead, you and I have to fund it when we have the selfish gall to do things like work for our wages or exchange those wages for food, plus now we have to fuel the other side too if we want to save our crowdsourced abandonware repository from this hostage situation come partisan dirty war.
- dannyobrien 2y agoThey're a non-profit. They don't have a business model.
- tedunangst 2y agoThis is hopelessly naive. Nonprofits exist to collect more donations next year than last year.
- dannyobrien 2y agoI get directionally what you're saying, but on the specifics of always pursuing growth, that isn't true. Ironically, one of the people that I've heard argue most forcefully for the idea of steady-state non-profit is actually Brewster Kahle, though it wasn't about IA. I remember him arguing that a particular goal may require a institution of a certain size, and if you started bringing in more cash, it might make more sense to spin off another, independent organization. (Now I must say, I've also seen that strategy pursued in practice among businesses, and let me tell you, it's a lot easier in the non-profit world!)
- AnthonyMouse 2y agoThat is hopelessly cynical. Sometimes people actually are dedicated to the goals of the organization and not just personal gain. It also doesn't make any sense in this context. Soliciting donations only to spend them on lawyers doesn't yield any net money for the organization.
- idle_zealot 2y agoYou're going to have to be more rigorous when defining "copy" in the digital age. The process of moving or reading any digital media necessitates copying in a way that physical media does not. Rights holders deal with this by employing DRM (taking control of your computer to make sure you're not making copies the wrong way). So what? Because the format people prefer to consume media on has changed we suddenly lose the right to resell or lend media we purchase? We decided that was fair before, why should development of new technology reduce the scope of consumer rights?
- Dalewyn 2y agoFor your perusal and reference, a rigorous legal definition of copying as it applies to the digital age: https://www.law.cornell.edu/uscode/text/17/117 https://www.law.cornell.edu/uscode/text/17/117
- idle_zealot 2y ago> Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner. I don't speak lawyer, but if I'm interpreting this right then this is the part where they say "actually yeah you can't sell or lend your copy to someone else unless explicitly authorized by the rights holder" i.e. we magically lost consumer rights by virtue of media being digital.
- duskwuff 2y agoIt's not as restrictive as you're reading it. This bit is fairly permissive: > only as part of the lease, sale, or other transfer of all rights in the program. It's basically saying that users are allowed to make personal copies of a digital work, but they aren't allowed to sell or loan out those copies separately from the original. For example, if you bought a game on floppy disk, you can make backup copies of the disk it came on, but you can't make "backups" for your friends to play while you keep the original, or sell your copy of the game while keeping a backup for yourself. This seems entirely reasonable to me.
- greyface- 2y agoThey're trying to engage in impact litigation to enshrine the "DRM ebook ~= physical book" equivalency into case law. Committing fully to that equivalency looks a lot like playing dumb, particularly to an observer that thinks it's a false equivalency. Personally, I want less DRM in the world, not more.
- ranger_danger 2y agoI don't think this case is actually related to DRM... they are making digital photocopies of existing physical books and then lending those out, regardless of whether any DRM is applied by IA themselves. If you're talking about DRM ebooks purchased legally under license and then copying those, I think that's a separate issue that would have to be addressed later in another lawsuit.
- smogcutter 2y ago> Similar to a photocopy or resale of a book I mean, right there is the attempted rhetorical trick that gives the game away. A photocopy is completely unlike resale of a used book, and is only considered “fair use” under specific, practical circumstances. It’s hard to seriously argue that you could lawfully photocopy books whole, then make a lending library out of the copies, or that such a thing has any similarity to reselling used books.
- AnthonyMouse 2y ago> It’s hard to seriously argue that you could lawfully photocopy books whole, then make a lending library out of the copies, or that such a thing has any similarity to reselling used books. Suppose you have a rare book, so to keep the book from being damaged while allowing people to read it, you make one photocopy and then store the book in a vault and allow patrons to read the photocopy. That seems entirely reasonable, doesn't it?
- tedunangst 2y agoThey understand perfectly. They're hoping you don't understand.
- dannyobrien 2y agoThis is why copyright strains to match its intention in a digital environment. It's all copies, out here: the number of transformations, duplications and mutations of this sentence to make it from my keyboard to your screen is well-nigh uncountable. So we end up with intuition-bending exceptions and judgements, some attempting to protect the spirit of the law, some enforcing some broad conception of intellectual property or duplication. You can think about copyright that way, but as well as making the equivalent of lending a book online immoral and illegal, it also throws up all kinds of other strangeness. Why do we exempt caching? Should we pay extra for our backups? Should Zoom be paying for the posters on my wall, or my videoconferencee colleagues? And how many times? (Those may be a little throwaway example, but I wrote a little bit more about the practical economic connection between copying and copyright back in 2008, here: https://www.oblomovka.com/wp/2008/08/07/copyright-fraud-and-window-taxes-no-not-that-windows/ https://www.oblomovka.com/wp/2008/08/07/copyright-fraud-and-... )
- tptacek 2y agoDo you want to make backups unlawful? Or to require Zoom to police licensing for poster on walls? Because the strat IA is using here seems like a great way to get that to happen. Doing literally nothing --- or at least stopping when they lost in the district court and not appealing --- would have been strictly better for the rights of Internet users than what they actually did, which more or less torpedoed CDL everywhere in the country. Bad facts make bad law! They teach this in law school!
- ranger_danger 2y agoI don't see how. The lawsuit was brought by specific book companies whose copyrights were infringed, the outcome of this case does not determine what the definition of a copy or "backup" is outside the context of borrowing books. And in the zoom scenario, it does not shift the legal burden for copyright policing to anyone else (it's always the rights holder)...
- kmeisthax 2y agoCDL was already torpedoed before IA started doing it; there's a very similar scheme for digital resale called ReDigi which was sued to oblivion. In fact, it's why the publishers sued in the Second Circuit. Zoom doesn't have to care about posters on walls for several reasons[0] and computer backups are already authorized by law. There isn't really any potential for any worse precedent than what already existed before IA took a crack at it. The converse to "bad facts make bad law" is that courts are really hesitant to establish precedent that is broader than it needs to be[1]. And the precedent here is very much limited to the practice of loaning out e-books without a license, which was already pretty likely to be a "no" from the courts. The only real risk is to IA themselves, but they apparently are protected by other parts of the law that limit damages on libraries. So they just wasted the court's time. [0] DMCA 1201, and more importantly, the fact that such a use would be de minimus [1] Except for the current political hackjobs in SCOTUS who need a good court-packing
- iwishiknewlisp 2y agoTo some degree I think that with the increase in use of digital media there needs to better rights and methods for sharing like one can with physical media. However, it's not fair use to copy material and redistribute it. Furthermore, the creator should be able to determine the format of the release of their work. If someone wants to alter their work, they must do so in a transformative manner and not pass it off as the creator's work. Someone who makes a book with formatting specific to say a PDF, could be unfairly reviewed or judged by readers who borrowed distributed copies that are formatted to epub, for example.
- travoc 2y agoI read your comment in dark mode. Is that ok with you? I forgot to ask.
- exe34 2y agowe need to stop looking at accessibility as something we add occasionally to a product when things are going well and we want to feel nice about ourselves. the best way to do it is through things like this, where the content is available to you and you can choose how to consume it - dark mode, but maybe also reader mode, large fonts, wide screens, text search, etc - these should be considered the basic necessities, and then anything you want to do to make it look nice and feel creative is on top, as an option - even the default option if you really care about marketing over content.
- tptacek 2y agoThis is a real problem with discussions about copyright, because this is a great example of something that is a mic drop on a message board that will get you tossed out on your ear in a court of law.
- Taek 2y agoOnly because of the presentation. I think the same argument could be made in a more professional way. As a society we have to choose where to draw the line between the rights of the author and the rights of the consumer. Every right that we extend to authors is a burden on society, and we have to figure out the point at which returns for the collective are diminishing
- ChrisArchitect 2y agoRelated Internet Archive blog response to the case: https://blog.archive.org/2024/09/04/internet-archive-responds-to-appellate-opinion/ https://blog.archive.org/2024/09/04/internet-archive-respond...
- ChrisArchitect 2y agoRelated discussion from earlier this month: The Internet Archive has lost its appeal in Hachette vs. Internet Archive https://news.ycombinator.com/item?id=41447758 https://news.ycombinator.com/item?id=41447758
- kmeisthax 2y ago> Controlled Digital Lending replicates the print lending process digitally in a way that respects copyright by maintaining this ratio. Maintaining an owned-to-loaned ratio does not respect copyright. The core concept of copyright is very simple: only you have the right to make copies. It doesn't matter if you destroy a copy beforehand, making the new copy is still illegal. Copyright is about permission, not equivalence, and you can't resell or loan out permission. Or at least that's what the Second Circuit said when ReDigi was trying to sell used MP3s. The thing is, the true core concept of copyright law is "whatever enables America's cultural empire to be cutthroat ruthless assholes that can devour other countries' competing cultural empires[0]". Free speech backed[1] by government-granted monopolies on that speech is the path it took to build such an empire, which is why copyright law became what it is today. The US government, in a sense, is perfectly willing to see its own library system grow increasingly irrelevant to curry favor with its domestic cultural industry. The fact that said cultural industry is perfectly willing to censor itself to get market access in China probably means we've given them way too much free reign. China does not respect copyright. It doesn't respect freedom of speech, human rights, multiculturalism, feminism[2], gay rights[3], antiracism, or anything else the American people value, or even what the cultural industries themselves pretend to value. Hell, it doesn't even respect socialism[4]. Anyway, we should consider compulsory licensing. It's closer to respecting copyright than Controlled Digital Lending's lip service. Just have the government set a price to be paid by libraries for loaning out e-books, and let them manage their own services and e-book files. [0] This is why, for example, Japanese media companies tend to be more litigious towards US fans than Japanese ones. Any author or publisher outside the US is at constant risk of cultural gentrification, and has fought tooth and nail just to gain a beachhead into US culture. [1] To be clear I am NOT one of those "copyright backstops 1A" people, but the judicial system is full of judges who think it does [2] https://en.wikipedia.org/wiki/Feminism_in_China#Arrest_of_Feminist_Five https://en.wikipedia.org/wiki/Feminism_in_China#Arrest_of_Fe... [3] https://en.wikipedia.org/wiki/LGBTQ_rights_in_China#Censorship_of_LGBT_activism_and_content https://en.wikipedia.org/wiki/LGBTQ_rights_in_China#Censorsh... [4] If labor unions are illegal, you're not socialist.
- rahimnathwani 2y agoJust have the government set a price Government price controls for books?