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This is why copyright strains to match its intention in a digital environment. It's all copies, out here: the number of transformations, duplications and mutati

This 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 ago
Do 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 ago
  I 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 ago
  CDL 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
- dannyobrien 2y ago
  That's a very separate matter -- I was mostly here talking here about the philosophical question of "it's copyright, so if there's a copy made, we can use that as a guide to whether this is legal or not." There's no risk to what you're describing, mostly because there are -- as others have pointed out -- clear statutory exemptions for these situations. I do disagree with your assessment of the legal strategy, but wouldn't want to get into that here. IANAL (and therefore learned NOTHING in law school), but I worked at EFF when IA was a client, and I do know enough to not want to accidentally breach professional ethics and/or privilege regarding a client. I feel that this is actually a challenge in discussions like this -- there's usually a whole bunch of stuff going on in the background (pro and con) that determines these strategies, but everyone involved who knows that background that can't really talk about it. But you know the same gang of lawyers as I do, so you can probably get their assessment more privately.
ranger_danger 2y ago
If you wanna get super technical: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001L0029 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL... This EU directive actually places caching in the same boat as "browsing" itself... does that mean if you can view a book online, it's not copying? >(33) "...this exception should include acts which enable browsing as well as acts of caching to take place"

tptacek 2y ago

Do 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 ago
I 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 ago
CDL 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
dannyobrien 2y ago
That's a very separate matter -- I was mostly here talking here about the philosophical question of "it's copyright, so if there's a copy made, we can use that as a guide to whether this is legal or not." There's no risk to what you're describing, mostly because there are -- as others have pointed out -- clear statutory exemptions for these situations. I do disagree with your assessment of the legal strategy, but wouldn't want to get into that here. IANAL (and therefore learned NOTHING in law school), but I worked at EFF when IA was a client, and I do know enough to not want to accidentally breach professional ethics and/or privilege regarding a client. I feel that this is actually a challenge in discussions like this -- there's usually a whole bunch of stuff going on in the background (pro and con) that determines these strategies, but everyone involved who knows that background that can't really talk about it. But you know the same gang of lawyers as I do, so you can probably get their assessment more privately.

ranger_danger 2y ago

If you wanna get super technical: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001L0029 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL... This EU directive actually places caching in the same boat as "browsing" itself... does that mean if you can view a book online, it's not copying? >(33) "...this exception should include acts which enable browsing as well as acts of caching to take place"