Internet Archive: Digital Lending Is Fair Use, Not Copyright Infringement 50
Ernesto Van der Sar reports via TorrentFreak: Internet Archive has filed its opening brief in its appeal of a court ruling which found its digital lending program copyright-infringing. The Archive believes the decision should be reversed on the grounds that its lending activities amount to fair use. Founder Brewster Kahle believes the legal battle is vital for the future of all libraries in the United States and around the world. [ "This lawsuit is about more than the Internet Archive; it is about the role of all libraries in our digital age," says IA founder Brewster Kahle. "This lawsuit is an attack on a well-established practice used by hundreds of libraries to provide public access to their collections. The disastrous lower court decision in this case holds implications far beyond our organization, shaping the future of all libraries in the United States and unfortunately, around the world."]
Whether IA has a fair use defense depends on how the four relevant factors are weighed. According to the lower court, these favor the publishers but the library vehemently disagrees. On the contrary, it believes that its service promotes the creation and sharing of knowledge, which is a core purpose of copyright. "This Court should reverse and hold that IA's controlled digital lending is fair use. This practice, like traditional library lending, furthers copyright's goal of promoting public availability of knowledge without harming authors or publishers," the brief reads. A fair use analysis has to weigh the interests of both sides. The lower court did so, but IA argues that it reached the wrong conclusions, failing to properly account for the "tremendous public benefits" controlled digital lending offers.
One of the key fair use factors at stake is whether IA's lending program affects (i.e., threatens) the traditional ebook lending market. IA uses expert witnesses to argue that there's no financial harm and further argues that its service is substantially different from the ebook licensing market. IA offers access to digital copies of books, which is similar to licensed libraries. However, the non-profit organization argues that its lending program is not a substitute as it offers a fundamentally different service. "For example, libraries cannot use ebook licenses to build permanent collections. But they can use licensing to easily change the selection of ebooks they offer to adapt to changing interests," IA writes.
The licensing models make these libraries more flexible. However, they have to rely on the books offered by commercial aggregators and can't add these digital copies to their archives. "Controlled digital lending, by contrast, allows libraries to lend only books from their own permanent collections. They can preserve and lend older editions, maintaining an accurate historical record of books as they were printed. "They can also provide access that does not depend on what Publishers choose to make available. But libraries must own a copy of each book they lend, so they cannot easily swap one book for another when interest or trends change," IA adds. A copy of the Internet Archive's opening brief, filed at the Second Circuit Court of Appeals, is available here (pdf)
Whether IA has a fair use defense depends on how the four relevant factors are weighed. According to the lower court, these favor the publishers but the library vehemently disagrees. On the contrary, it believes that its service promotes the creation and sharing of knowledge, which is a core purpose of copyright. "This Court should reverse and hold that IA's controlled digital lending is fair use. This practice, like traditional library lending, furthers copyright's goal of promoting public availability of knowledge without harming authors or publishers," the brief reads. A fair use analysis has to weigh the interests of both sides. The lower court did so, but IA argues that it reached the wrong conclusions, failing to properly account for the "tremendous public benefits" controlled digital lending offers.
One of the key fair use factors at stake is whether IA's lending program affects (i.e., threatens) the traditional ebook lending market. IA uses expert witnesses to argue that there's no financial harm and further argues that its service is substantially different from the ebook licensing market. IA offers access to digital copies of books, which is similar to licensed libraries. However, the non-profit organization argues that its lending program is not a substitute as it offers a fundamentally different service. "For example, libraries cannot use ebook licenses to build permanent collections. But they can use licensing to easily change the selection of ebooks they offer to adapt to changing interests," IA writes.
The licensing models make these libraries more flexible. However, they have to rely on the books offered by commercial aggregators and can't add these digital copies to their archives. "Controlled digital lending, by contrast, allows libraries to lend only books from their own permanent collections. They can preserve and lend older editions, maintaining an accurate historical record of books as they were printed. "They can also provide access that does not depend on what Publishers choose to make available. But libraries must own a copy of each book they lend, so they cannot easily swap one book for another when interest or trends change," IA adds. A copy of the Internet Archive's opening brief, filed at the Second Circuit Court of Appeals, is available here (pdf)
Remains to be seen (Score:3, Insightful)
Re:Remains to be seen (Score:4, Insightful)
It was a pretty good argument back when they only loaned out books to one person at a time for each copy they owned.
They started loaning out to multiple (many?) people for each copy with little regard to how many copies they owned during the pandemic.
Their claim that "This lawsuit is an attack on a well-established practice used by hundreds of libraries to provide public access to their collections." is disingenuous at best, and that assumes they don't actually know the difference between "loan out one copy per copy we own" and "loan out many copies for each copy we own," which would imply they're either profoundly stupid or delusional to the point they need keepers. More likely, they know what they're shoveling, but that's the best they could come up with.
They're trying to change the law (in ways only Congress can), while denying it's a change. I'd be far, far more sympathetic to their cause if they weren't lying about it.
Re:Remains to be seen (Score:4, Interesting)
It was a pretty good argument back when they only loaned out books to one person at a time for each copy they owned.
Yes. That should be upheld. We need a Sony vs. Betamax style ruling that Lending a DRM access-protected digital copy of a thing as a substitute to lending the physical medium is Equivalent and fair use so long as the DMCA is in force.
They started loaning out to multiple (many?) people for each copy with little regard to how many copies they owned during the pandemic
That part is more problematic... However, there was a pandemic, and the purpose of Copyright is not to secure authors a right towards extraordinary profits during national emergencies that shutdown other libraries. There's still a good argument that should be fair use to an extent, But the uncontrolled rental of wholesale copies with no effort to obtain a legal exclusive right of control over a matching number of copies gotta be infringement (If they were counting number of books in partner libraries closed down due to CovID with signed agreements to exclude those units from physical lending during the closure it would've been a different thing). The copyright act just doesn't address extraordinary circumstances where Infringement might be necessary for Free speech and providing the fundamental rights to education. The Internet Archive seemingly put themselves in a no-win situation and should probably just have to pay something to the publishers here.
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....The copyright act just doesn't address extraordinary circumstances where Infringement might be necessary for Free speech and providing the fundamental rights to education.
Education comes under the fair use provision of the copyright act. Whether a particular education use is or is not infringement depends on exactly how you use it and why (and ultimately on what the judge rules), but it's mentioned in the act.
There isn't any "infringement necessary for Free speech"; free speech doesn't include freedom to grab other peoples' speech.
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There isn't any "infringement necessary for Free speech"; free speech doesn't include freedom to grab other peoples' speech.
Actually.. that's wrong. Free speech does include the freedom to paste other peoples' speech. Otherwise you would have
created an artificial obstacle to free speech. If you read a thing: you have the natural right to repeat the thing.
Free Speech does in fact contradict all of Copyright law. It's just that the court has so far declined to entirely throw out All of copyright as u
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It's just that the court has so far declined to entirely throw out All of copyright as unconstitutional,
Article I, Section 8, Clause 8:
"[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
So, in the imaginary fairy land that exists only in your head, an explicit provision of the Constitution is unconstitutional?
Might find dope you're smoking there, chief.
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an explicit provision of the Constitution is unconstitutional?
No. The 1st Amendment was passed later, And, therefore, Makes a repeal of any contradictory provisions found in that original text. Congress cannot exercise any of the powers granted to them in conflict with the 1st Amendment, Because the 1st Amendment Removes powers from congress that the original constitution had granted.
Re: Remains to be seen (Score:2)
The part where IA claims their use is transformative, though? Utter garbage. "If I only copied it once, of course that would be bad, but because I sent a copy to every living human, it's transformative."
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However, there was a pandemic, and the purpose of Copyright is not to secure authors a right towards extraordinary profits during national emergencies that shutdown other libraries. There's still a good argument that should be fair use to an extent
Honestly no there really isn't such an argument. If congress wanted to put an extenuating circumstances component into the law they could have and would have. Its wrong to just decide there is one. Its wrong to create case law to that effect as well.
This is though why we have jury trials for civil cases. Jury nullifcation should be used as a featured component of the legal system. You should be able to ask for a jury in a case like this and if you wish to do so, go an argue the case in terms of 'yes we b
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"Nullification can also occur in civil trials,[12] but (unlike in criminal trials) if the jury renders a not liable verdict that is clearly at odds with the evidence, the judge can issue a judgment notwithstanding the verdict, or order a new trial."
https://en.wikipedia.org/wiki/... [wikipedia.org].
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I thought Jury Nullification was "yes, I broke the law. But the law itself is wrong / unjust / should not cover these circumstances". So in JN, the LAW is found suspect, and struct down by the jury. You just happen to go free as a side-effect (the charges against you vanish) - you're not acquitted.
Am I wrong here?
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As much as I love the IA, they have been encouraging massive amounts of copyright infringement. Legally speaking, it's not looking good for them.
They encourage users to upload things like bootlegs of concerts, and have become a major download site for things like video game ROMs. Their "we are just preserving for posterity" argument is undermined by the fact that every upload goes live for anyone to download instantly. They don't even have the usual file sharing site defence - "it's for sharing with friends
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All correct, but either Neil Gaiman or Kurt Busiack pointed out wear and tear (and royalties), My books last forever because I read them once or twice and maybe loan them to a friend once or twice. Library books get handled a lot (library patrons and staff), shipped around the county/country, lost, stolen, etc. Ebook licensing takes this into account by having the license last for a fixed time, or number or renewals. If a pristine vault physical copy is allowed to substitute for an ebook license, then ther
Public Lending Right [Re:The few essential dif...] (Score:4, Informative)
Many countries (although not the US) have libraries pay royalties when people borrow books (In the UK, for example, this is the Public Lending Right [wikipedia.org]).
Re: Public Lending Right [Re:The few essential dif (Score:2)
Not really the same as a traditional library (Score:4)
A traditional library couldn't lend a book to someone unless it had first purchased (or been given) the book, and it couldn't lend it to a second person until the first person returned it.
With digital materials, every time you provide it to someone, you're literally making a copy and giving it to them, potentially forever. You can then make another copy and provide it to someone else, immediately, without any return.
Theoretically, the original author can lose the ability to sell their digital work, after selling just one copy.
I'm glad I'm not the judge that has to decide.
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You seem to be oversimplifying the eLending landscape somewhat: it's quite adversarial with eBook publishers having far more control in the system compared to the dead tree editions.
In a typical library that engages in eLending there's a full-on inventory management and tracking system in place (e.g.: OverDrive) monitoring which eBooks are loaned out, how many copies and to whom, and the loaned out eBooks are typically DRM encumbered to the particular borrower with individual time limits. The source eBooks
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I hate to say this, but that sounds like an argument in favor of the plaintiffs against Internet Archive.
If a "typical library" uses DRMed books, then the only way to avoid violating DMCA (both when people read the books, and when the library trafficks in software which lets people read the books) is to get authorization from the copyright owners. So those libraries must be using licensing, rather than relying on the exemptions codified in copyright law or things like Fair Use in common law.
So you're really
Re: Not really the same as a traditional library (Score:1)
Part of their argument is that they're not adding any additional copies of books into circulation. They do a format transfer, trying to ensure that still only one copy of each physical book is floating ar
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The ability of an author to collect payment has nothing to do with the cost of publication. The cost of reproducing is certainly a factor that slows down copyright infringement. But the real key is the first-sale doctrine. In both patent and copyright law, the author or inventor has the right to make money on the "first sale" of their work. Once it has been sold, the new owner has the complete freedom to resell that item, whether it's a book or a car. The creator loses all control after the first sale.
The r
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I could also not just get a library book from the US, living as I do outside the US.
Somehow Internet Archive think they can just copy everything to everyone no matter what it is, who owns it, or who they're giving it to, free, forever. I'm not sure there's any basis in law for that.
And that's before you even get away from books onto things like complete TV series, movies, complete MAME ROM sets, DOS games, etc. that are just sitting on archive.org and some have been there for years. What makes archive.org
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With digital materials, every time you provide it to someone, you're literally making a copy and giving it to them, potentially forever. You can then make another copy and provide it to someone else, immediately, without any return.
Xeroxing has been entirely possible for nearly a century. The thing stopping libraries from making and distributing copies hasn't been the technical infeasibility or the cost, it was the legality, specifically the lack of legality should they engage in such "lending" practices. That remains unchanged today.
The making of a copy is in no way problematic, provided it falls under Fair Use. Google Books copies and distributes snippets from every book they could get their hands on, and the courts correctly held t
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Xeroxing is possible, yes, but it leads to a sub-optimal copy that is quite undesirable, making this not a great option for those who want to circumvent copyright. In the case of digital media, the copies are 100% identical to the original, there is no degradation in quality, and no incentive to get the real thing. Further, the scale of Xeroxing is limited, it's not straightforward to make thousands of copies and distribute them. With digital copies, anyone with a free account on a file server can upload a
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Xeroxing is possible, yes, but it leads to a sub-optimal copy that is quite undesirable, making this not a great option for those who want to circumvent copyright. In the case of digital media, the copies are 100% identical to the original, there is no degradation in quality, and no incentive to get the real thing...
We used to think we knew what it meant to "own" a book. The entire concept is now murky.
You're not talking about this case. The Internet Archive's Open Library [wikipedia.org] makes their digital copies from print copies they own. These were not perfect digital reproductions, so that's a moot point. Ownership of the original copy was never in question; IA owned the originals outright, no licensing, DRM, or other questions making the topic "murky". I agree with what you're saying in the abstract, but those abstract thoughts have no basis in the facts of this particular case.
You're right that the shift to digit
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You are correct on the details of what the Internet Archive is doing. The reason it's not analogous to traditional "Xeroxing" is that the result of THAT process was a stack of loose-leaf paper, which no one wanted. They generally wanted a bound copy, and the binding process was not cheap, thus introducing drag into the duplication process. In the case of scanning to PDF, the PDF is the final result that people want. They don't want a bound copy. The quality of these PDF scans is quite good, it's certainly "
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It would seem fair that the publisher shoulders some of this burden, as they do publish digital versions of their "product" knowing that all you have said about digital distribution is true.
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Those publishers are relying on DRM and custom software to protect their IP. They don't let you have a PDF, like Internet Archive is doing.
Re: Not really the same as a traditional library (Score:1)
There are also unencrypted PDF files in the IA as part of other collections and user uploads, but that's separate from the Library part the court case is about.
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You are correct, I missed that note in the article:
with technical restrictions that prevent copying
That's literally all it says.
Given the DRM, what this sets up then is a clash between licensing terms, and copyright. Digital books are licensed, not sold. Those licenses don't generally allow lending, even though lending is allowed under copyright.
It will be interesting to see where this lawsuit lands.
ebooks vs paper books (Score:4, Interesting)
And counterintuitively, it may be better for the environment as well https://www.anthropocenemagazi... [anthropocenemagazine.org]
ditch ebooks people!
Difference (Score:3)
The difference is, normal libraries are not scanning in physical books and lending out an arbitary number of "ebook" versions.
When "real" libraries lend ebooks, they obtain the license to lend out a certain number of ebooks, it's like buying 3 physical copies of the books only you buy 3 licenses for the ebook.
Here however, the IA have been taking public versions of books (i.e not bought by a library) and scanning them, which in many cases are actually agains the terms laid out in the books copyright statement.
I have many books at home that clearly state that it is not permitted to store the book in electronic form and that the book can be lent, resold only if it remains in its original binding i.e you cant photocopy the entire book and staple it and give it away, not can you scan the entire book and email it etc. Copying or scanning only part of it technically wont land you introuble evne if you dont have a "fair use" excemption, i doubt any court will really see it as a problem.
The IA are scanning books, which would be fine for archival purposes, but they are then minting their own unofficial ebooks and lending those as if somehow they are granted the license to do so. Well they are not.
Stop doing it IA. Scan out of print books, release them as and when they enter the public domain. Work for copyright reform if you want to do it earlier. What the IA is doing is clearly illegal, no less illegal than me doing it with my home scanner and emailing a copy to 100 classmates.
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We know which courts will rule which way. (Score:1)
I hope court agrees, but they won't (Score:2)
Big IFs (Score:2)
IF they had paid for the titles in the first place.
IF they had their own DRM that limited access to one person at a time per purchased copy.
Neither of these seem to apply, so calling themselves a library in the first place is a little farfetched. Then claiming fair use as a library is really pushing the limits.
Given the modern pace of innovation, we really need to revisit the entire concept of copyright for science and engineering. The original 15 years is
Re: Big IFs (Score:1)
They <i>usually</i> also don't loan out more digital copies of a book than they have physical ones. But they loosened those restrictions during the pandemic's library closures, which was probably a bad idea and got them in hot water. The publishers were aware of their lending program be
Re: Big IFs (Score:1)
Harlan Ellison -- Pay the Writer (Score:2)
"I sell my soul but at the highest rates, the highest rates." God bless Harlan Ellison
https://www.youtube.com/watch?... [youtube.com]