Like the Internet Archive feeling that "oh shit the entire society just shut down" in the days after Covid lockdowns started, and uncapping their digital lending because they were the only "library" you could still visit.
And then getting sued six ways from sunday over it, years later when the crisis mood had faded and the help-people-any-way-we-can vibes were thoroughly forgotten. Time to make sure no good deed goes unpunished!
WBUR just aired an interview today with Brewster Kahle. It would be a very sad day if the Internet Archive stopped resolving, or was stopped from benefiting the common good.
In any tricky situation the conditions under which you're judged are a
world apart from the conditions under which you operate. Just don't be
on the "losing" side.
The self-own that was the IA taking it upon themselves to decide that copyright would not be enforced upon them by big rightsholders “because COVID” is not a good deed.
It is foolishness masquerading as virtue. I used to be a donor, but no more, as this was an unforced error. The IA is in danger because the IA management was dumb.
I don’t believe in copyright, personally, and I’ve been an avid pirate of every type of media since I got on the internet at 9.6kbps, but to think that Big Content won’t sue whenever and however they can is simply naïve.
> The self-own that was the IA taking it upon themselves to decide that copyright would not be enforced upon them by big rightsholders “because COVID” is not a good deed.
The theory was that the courts would find it to be fair use. Which isn't a crazy theory at all because making exceptions for exceptional circumstances is exactly the sort of things courts do, and fair use is exactly the sort of thing that gives them the latitude to do it if they want to.
IA's issue is that they're librarians and look at things like librarians do. If people lose access to books, is that an emergency? It could sometimes be a matter of life and death -- people need some information or something bad will happen and now they don't have access to it -- but that's kind of abstract and it's not as visceral. People understand kicking down a door to prevent someone from electrocuting themselves better than they understand that the same thing can happen if people lose access to the information needed to prevent it. So to a librarian, of course that's an emergency.
And then the other side of that is, what are you balancing it against? Some temporary copies being made of books that libraries all over have already paid for and have in their collections, and only for the duration of the pandemic? That's not a ridiculous trade off, that's completely reasonable. The libraries bought the books and the patrons read them, same as it ever was. In a temporary emergency, how much does it matter that the accounting is completely perfect rather than the plausible approximation you get based on assuming that before they knew there would be a pandemic, libraries had purchased books in proportion to how much demand there would be for them? Has it even been proved that a single book was simultaneously lent out more times by IA than there were copies of it on the shelves in locked down libraries everywhere?
That's not a crazy argument. The problem is, it doesn't feel like an emergency anymore. Worse, there was a lot of overreach during COVID, and many people are now of the sense that much of the response was excessive. And then you get a conflation between "shutting down every library might have been an overreaction" and "given that libraries were forcibly shut down, lending books in a different way was temporarily justifiable" and the people making the second argument get painted with the negative sentiment derived from the first by Monday morning quarterbacks.
> theory was that the courts would find it to be fair use. Which isn't a crazy theory at all
If they'd been advancing a test case, they would have done what they did and then--when confronted by rightsholders--stopped while the courts deliberated. That asks the question while managing the downside. Instead, IA dialled its rhetoric to eleven, thereby turning what could have been a measured legal contest into a bet-the-farm Hail Mary.
> If they'd been advancing a test case, they would have done what they did and then--when confronted by rightsholders--stopped while the courts deliberated.
Consider what would happen if they did that.
First, this was happening during a pandemic. Emergency happening right now. If you stop doing it at this point, not only do you fail your patrons when they need you, you're undermining your own argument that this is actually an emergency that justifies doing this.
Second, if you stop, do they even sue you? If they don't, you don't even get your test case.
Third, if they do sue you, what does it matter if you were doing it for a month vs. a year? If they hit you with the absurd fictional damages numbers in some of the copyright statutes and you lose, bankrupt is bankrupt.
> Did the emergency argument ever hold legal water?
It's whatever the courts say it is. Fair use is very squishy. Nobody knows until there is a case.
> How many actual librarians did the IA consult in crafting its programme?
They are actual librarians.
> Injunction.
If you voluntarily stop they don't need to file for an injunction, they can just drop the case and then there is nothing for you to appeal.
> Damages.
What's the difference between a billion dollars and a trillion dollars when you don't have a billion dollars?
> Going straight from controlled digital lending to free for all was totally unnecessary when the first hadn't been tested.
They'd been doing controlled digital lending for a good while and nobody sued them. To get a test case somebody has to file a lawsuit. Maybe it shouldn't work that way but "courts don't issue advisory opinions" isn't something IA made up.
> IA was arrogant throughout the lawsuit, and it showed in their library partners often publicly rebuking them.
Issuing a statement that amounts to "please don't sue us" isn't really indicative of much other than that they know they'd need to budget for a bunch of lawyers if they want to get involved and they don't.
Yeah, it was a "we want to and think we can get away with it" type of thing. It's what they would love to be doing 24/7, COVID was just a convenient excuse.
(Publishers can be parasites, but if you're playing with the big boys you have to follow the rules)
And then getting sued six ways from sunday over it, years later when the crisis mood had faded and the help-people-any-way-we-can vibes were thoroughly forgotten. Time to make sure no good deed goes unpunished!
Yeah. This document makes a LOT of sense.