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?
A physical library does not involve making a copy, but lending out an existing physical copy. One book, one reader. "Controlled Digital Lending" literally involves making and transmitting a copy to another physical medium electronically. Brewster has endangered the good work done by people at the archive for a case he was never going to win and which was of dubious value. If he wants to be the next Anna's Archive then he should drop all pretense and go do that... but leave the archive to do what the archive is meant to do.
1) Making a copy is not always illegal; for example, scanning books for Google Books by Google is considered legal.
2) Digital books are DRM-protected so you cannot lend them or re-sell like you can with physical books. So making a digital copy of a physical book can be considered merely a method to workaround these restrictions.
3) Publishers want to use new technology (electronic books) to remove rights that consumers had with physical books, to be specific: a right to re-sell the book, a right to lend the book, a right to make archival copies etc.
Making a copy is not always illegal when it is considered fair use or fair dealing. Part of the analysis for determining the same involves the quantity of material copied. They copied entire books. Your other points are entirely irrelevant. They knew what they were doing was wrong, and they jeopardized the archive by doing it. If you want to change the law, change the law. If you want to break the law, break it yourself... don't drag the archive down with you to do it.
> If you want to break the law, break it yourself... don't drag the archive down with you to do it.
It takes a court decision to know if the law was broken or not. You apparently forget that the Wayback Machine itself breaks copyright laws and went to court over this many times. Most cases were settled by removal of infringing content but it doesn't undo the fact that infringements did actually happen.
The IA exists in the first place because Brewster Kahle isn't afraid to test what's possible and go to court if necessary.
You can take it or leave it. Or you can build your own archive... oh wait, you can't because it breaks the copyright law which is unacceptable for you.
> It takes a court decision to know if the law was broken or not.
It takes only a working mind to know that, and the court's decision was obvious to most before it was rendered. This could have been foreseen (and was).
> You apparently forget that the Wayback Machine itself breaks copyright laws and went to court over this many times.
...and they had good reason to do so then as there were fair use arguments to be made in favor of what they'd done. That was not the case here, and they were warned repeatedly and chose to ignore that advice.
> The IA exists in the first place because Brewster Kahle isn't afraid to test what's possible and go to court if necessary.
There's a difference between being unafraid and being foolish. Guess which one this was.
> You can take it or leave it. Or you can build your own archive... oh wait, you can't because it breaks the copyright law which is unacceptable for you.
Ah yes, except for that whole fair use thing and explicit carve-outs for the actually legal work they do, which I've been commending throughout this entire thread. Please take your blackwhite thinking elsewhere. It's not productive.
Wayback Machine is NOT fair use, you just invented that out of thin air. They produce full copies of copyrighted content, store them and make them available for the general public. They have been sued repeatedly over the content they host and the content in question was removed. There were no explicit carve-outs that I'm aware of.
Now the same thing happens with the CDL: they're sued over the content they host, they try to defend their rights, they lose and now will have to remove the content. Somehow you're upset and knew from the start they would fail.
> Please take your blackwhite thinking elsewhere. It's not productive.
This is amusing because your position of "don't break the law, change the it first, then do what you want" IS what's unproductive. Laws don't change when no one breaks them, it's works the other way round.
All these "carve-outs' and "fair use thing" you value so much appeared because it was demonstrated on practice they are necessary. People fought for their rights, people challenged the laws, people demonstratively broke the laws and laws changed as the result. There's no other way.
> 1) Making a copy is not always illegal; for example, scanning books for Google Books by Google is considered legal.
I believe I remember this was tried at one point too. The significant difference here is that Google has seemingly unlimited money to throw towards lobbying and court cases
> The Second Circuit agreed with the district court’s ruling that Google’s digitization and subsequent use of the copyrighted works was fair use. In concluding that Google’s use was transformative, the circuit court found that “Google’s making of a digital copy to provide a search function . . . augments public knowledge by making available information about [p]laintiffs’ books without providing the public with a substantial substitute for matter protected by the [p]laintiffs’ copyright interests in the original works or derivatives of them.”
> ...
> Regarding the Google Books project’s potential to impact the market for or value of the copyrighted works, the circuit court held that—despite the search function’s potential to cause “some loss of sales”—the brevity of the snippet search results and the “cumbersome, disjointed, and incomplete nature of the aggregation of snippets made available through snippet view” make it unlikely that Google’s use could “provide a significant substitute for the purchase of the author’s book.”
The law specifically gives libraries a carveout to make one copy in some cases or three copies in others, for purposes like this. It does not give them the ability to send these copies to library customers over the internet.
Digitally accessible and searchable on site, not on line... unless you're saying the Library of Congress makes *in copyright* works available on line to all comers?
What is the difference between lending a book in the library building and over the Internet from the library website? Lending over Internet is better because it saves the user from transportation cost, allows to read books at night etc.
They broke the law. This isn't that hard to understand. If you don't like the law then either work to change it, create substitute works, or break the law in a way that doesn't involve dragging down the archive with you.
Again, for clarification: this is the archive which contains copies of all those other web pages?
Should they have waited to start this archive, which is important enough for you to worry about its future existence, until the law on the right to make copies of websites was settled law? Bearing in mind that there are ongoing lawsuits and discussion on this topic right now, over fifty years since the emergence of the digital networks that rely on making copies to disseminate information.
Do you think that there was an open-and-shut case for an online archive in 1996?
So we should just ignore what was the intention with that law, and stick to the written rules even when it’s stupid in some new environments. Great idea!
When you watch anything on Netflix, the movie is copied a few dozens of times at least, and even you make a few copies during watching it, but I don’t think that it’s legal to make a copy, I’m quite sure that it’s stated in their ToS. So the whole internet infrastructure, and computer manufacturer, and every user should be sued with this logic.
No, it isn't. They're issuing a copy to the reader for the duration of their checkout. Your argument might hold some weight if they scanned a book, destroyed the book, and then deleted the book from their own servers every time it was lent out... but that's not how CDL works. What they're doing is unambiguously copying.
They aren't lending the physical book and the digital book simultaneously; there's only ever one "book" lent. To my mind this is materially different from sites like Anna's Archive.
The law is the law, and the court doesn't care about your opinion. They broke the law.
Seriously, I don't understand the reluctance of some to admit this. It's almost like the rule of law just doesn't exist for you as long as it's a cause you care about. Even more puzzling is the idea that you should just wantonly break the law in a way that drags down good institutions with you as if your own personal battle with bad law is more important than anything else. It really isn't, and I wish some of you would accept that fact rather than trying to one-up each other on the internet. It's not helping anybody.
It does when the physical library is loaning an ebook -- it works on exactly the same principal as CDL -- library owns ebook, library loans out to one user the ebook -- that's why there is often a wait list when trying to check out ebooks from a real physical library. In fact, even the same DRM system is used to prevent the user from keeping the ebook after the loan is up -- Adobe's Digital Editions.
The libraries lent physical books without any contracts. What publishers want is to make so that the rules and rights regrading physical books do not apply to digital books; what IA wants is to allow libraries treat and lend digital books the same way as physical, without permission from the publisher.
The contracts with libraries you mention require a library to buy a license for every ebook, and renew the license periodically; the publisher may set arbitrary price and terms.
So what the publisher wants is to strip users of digital books part of their rights.
You never had rights to freely copy digital books. You're not being 'stripped' of them when a judge says 'the law applies as written'. If you want these brand new rights, call your Congressman.
Does this case's effect on CDL mean that a library could still buy a huge stack of ultra-cheap eBook readers, load each one up with their one copy of a given book, and then lend out the physical readers?
Presumably not, because the same copies would be created. This wasn't a case that hinged on DRM or content protection. IA was making copies, lots of copies, and that's an action governed by copyright law; it's right there in the name.
All that aside: if you have 1:1 physical books anyways, what is the reader accomplishing here? Just loan out the book.
Maybe he was trying to torpedo CDL from ever being viable again? It seems a pretty despicable practice that attempts to shoehorn artificial scarcity to digital media, and I hate the fact the our libraries waste their monies propping up archaic monopolies, so maybe this is a win after all.
But judges and/or legislators might not have fully arrived in the internet age yet?
I would also see a difference whether the activity is for profit (Google earning money with news scraped from Newspapers) and non-profit (IA and physical libraries).
What's wrong with lenging digital copies over the Internet? It is actually better because it allows people from remote areas to access the books, it allows lending books at night, so it makes using the library more convenient, saves user's time and library's money.
Also, copying is ok in some cases; for example, the court found that Google scanning books for Google Books did it legally; 17 US Code 108 and 109 provide some exemptions from copyright.
It's good to want things. The contours of the Google case are discussed in this decision: Google Books scanning is "fair use" because books aren't made available in their entirety, and the IA's library feature is (unless SCOTUS disagrees, which seems extraordinarily unlikely) emphatically not.
It was never anybody's claim that scanning a copyrighted work is always illegal. This is an easy, straightforward decision to read; I think you'd be better off just reading it.
The decision is that lending of digital books causes "market harm for the publishers". It outweighs anything else. So the court only cares about profits of publishers and not right of the buyers, including "first-sale doctrine" and right to lend a legally obtained book. The court sees the case as merely making illegal copies and doesn't want to make analogies with libraries lending out books. It is obvious.
You can apply most of those arguments to a library lending out (distributing) physical books without authorization and causing same harm to the publisher.
No, that is not at all what the decision says. There's a 4-factor test for "fair use". Market harm is just one of them. The court found IA failed all 4 tests. That's the ballgame: if your copying is (1) unauthorized and (2) not fair use, it's infringing. There's no "library exception".
The copying only exists on a technical level because digital stuff is weird. Only one copy is usable at a time.
So either IA is guilty of copying because of a technicality, or normal libraries are only allowed because of a technicality/exception. (Because normal libraries fail the transformation test, they fail the amount copied test, they fail the expressive nature test, and they fail the market impact test.)
I want to believe the former is correct. Either way I believe there should be a way for IA to access that same "this isn't considered copying" territory somehow.
I'm talking about what libraries are allowed to do, the non-digital version of lending. It fails every fair use test, but they're allowed to do it.
The only difference is whether technically copying happens, because controlled digital lending has the same results as a system that involves no copying. It doesn't have the common definition of copying where two people can access two copies at the same time.
If IA came first, and libraries came second, would we refer to libraries as having a technicality/exception that lets them be legal?
Though I suspect that if libraries were invented right now they'd be declared illegal.
They don't have to pass the test, but they still fail it.
Please look at what I'm actually saying instead of snapping off replies that don't address my point. (And yes I edited in another couple sentences but the part about libraries not copying was in the original version of both those posts.)
They can't "fail" it; the test simply doesn't apply to them. "Fair uses" governs the legitimate creation of unauthorized derived works. Lending a physical book does not create a derived work.
(You're fine editing; I edited too, just for clarity).
You can still apply the elements of the test to them, and they fail every element.
Let me try making my post a list of bullet points.
* Libraries are allowed because technically it's not copying, and otherwise would be very illegal. Agree or disagree?
* Controlled digital lending is only copying on a technical level, not in the traditional sense where more than one copy can be accessed simultaneously. Agree or disagree?
* If CDL could somehow remove that technicality and do pure digital transfers, it would be fine. Agree or disagree?
* A better version of copyright would ignore that technicality. Agree or disagree?
Copying has a specific definition under the law. Physical lending of books does not come close to meeting it. Applying any of the fair use tests to physical book lending thus does not make any sense. It's like applying the Central Hudson Test to my cooking of a grilled cheese sandwich: it's lawful, the government has minimal interest in regulating it, none of that matters because my sandwich isn't expressive.
If your whole point is that we could tear down all of copyright law and replace it with a system that allowed IA CDL, then, sure. We could do a lot of things. I'm not really here for that argument (because there just isn't enough to nerd out about in it, not because I have any problem with the exercise).
But as for the law as has existed in the United States for the last 50-odd years, I'm reminded of the words of a young Baltimore entrepreneur, who infamously said "you want it to be one way --- but it's the other way".
> If your whole point is that we could tear down all of copyright law and replace it
No, no, not at all.
In this situation I just want to change the definition of "copy" slightly.
(And to point out that slightly different definitions of terms would make libraries illegal. There's nothing special about the current definitions. In particular they're not the most straightforward definitions at all. Again, none of this is about radical change, just looking at where small tweaks would get us.)
There is no reasonable definition of "copy" that would make the lending of a physical book a copy. The word "copy" literally exists to differentiate other actions from that action.
> There is no reasonable definition of "copy" that would make the lending of a physical book a copy.
But it could count as distribution. Copyright covers that. Library style distribution could be just as illegal as CDL style copying, by barely changing anything.
The point is that yes, digital items get treated differently by the law because using them requires "technical" copying. Moving them requires copying, using them requires copying, lending them requires copying. The law as written means that digital works will give their buyer far fewer rights than identical physical copies of the same. And yes, that's precisely why the current law is bananas, because it turns digitization into an excuse to enclose the commons. But I have no confidence in the courts to stop it, because that's not what courts do.
Except when it is. Laws are not computer code and it's precisely the court's job to interpret how they apply. This can include overturning previous interpretations. For examples see the recent ruckus about supreme court decisions changing what people interpreted as fundamental and accepted rights.
It is however not much a stretch to say that someone reading a book and committing it to memory is making a copy not inherently different from the "copies" being made when viewing something over the Internet. Now if you go and lend/sell a book after reading it you still retain the copy in your mind. Yet somehow that is legally fine.
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!
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.
And the next step is to deprecate and stop publishing physical prints at all, which is already mostly the case with other kinds of media. Then you won't just have less rights with digital things but less rights period.
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.
It’s apparent to me that the law has jumbled a bunch of archaic concepts of what “copying” means in order to transfigure the argument into a technically obscured realm.
A library allows one person to read one book at a time. A digital library doing the same while using technology to make lending more efficient accomplishes the exact same goal.
We’re using precedent to override common sense and prevent digital libraries from effectively existing under the guise of protection.
Is that really suprising considering the general copyright climate? Do you link libraries would be allowed to exist if they were conceived of today?
I'd say probably not - but then "AI" seems to not be facing the same rules as regular people so perhaps if libraries could find a way to become "big" fast enough they could have a chance.
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!
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.
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).
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.
I wasn't shoring one up with the other; I was making both arguments separately.
The four-factor test does not require that all factors pass. It's possible for a use to completely fail some of the factors but still qualify as fair use on the basis of the other factors.
No argument that CDL failed "amount and substantiality of"; they copied entire books. (This is, of course, exactly what they do with everything else, and that's not been a problem before.)
IA's "nature of" argument could have been reasonable for the subset of works that constituted nonfiction/educational material (there is a long history of the copying of those such work for educational use); that wouldn't have sufficed for other works, but it was a reasonable point for the subset of works it applied to.
For "purpose and character", the use was not hugely transformative, but it was turned into a different and more accessible form.
As for "effect of the use", I would argue that CDL was not in practice a substitute for most uses of a book or ebook. A book that you borrow, and have to return, can sometimes substitute for owning your own copy, but not always; in practice, the users of libraries and the users of bookstores overlap but I would venture that the majority of people who borrow a book from the library would not typically have bought the same book if the library didn't exist.
Suppose one built an automated apparatus that remotely opened a physical book and held individual pages up to a webcam for transmission to you on a video call. That's technically making a copy in the course of its operation, but you're still effectively reading the original physical book, with some assistance. (The Supreme Court ruling against Aereo would sadly probably be cited to shoot down such a model. That was a sad ruling as well; the opposite ruling would have enabled an incredible variety of uses and possibilities.) The 1:1 CDL mechanism seems effectively equivalent to that.
>Made them available as a substitute for publisher-provided ebooks.
Is this true? A substitute is like for like. The IA lending provided them as a lend on the proviso that a physically purchased book is available and unused.
Its like saying that a Bookstore is competing with a Library. However the Library can only satisfy a small amount of Bookstore demand, and does so as a public good. They arent the same and the lending is downstream of a sale.
I guess you could make the argument that ebooks also have crippling anti consumer licenses so both are similar. But that just leads back to "The law should be different"
Publisher ebooks don't have to satisfy any tests. The publishers own the copyright on the work. They can generally be as anti-consumerist as they like. That's the law.
> Do you think physical libraries harm the people who bring books into being?
Yes, actually, I do. But the public benefits of libraries outweigh the harm it does to authors. But, the fact that I can buy a book once, and pass it between 50 friends to read feels unfair to the author who effectively makes no money off of the work.
