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Internet Archive Digital Lending Isn't Fair Use, 2nd Cir. Says (bloomberglaw.com) 121

Internet Archive's "controlled digital lending" system and removal of controls during the pandemic don't qualify as fair use, the Second Circuit affirmed Wednesday. Bloomberg Law: Four major book publishers again thwarted the online repository's defense that its one-to-one lending practices mirrored those of traditional libraries, this time at the US Court of Appeals for the Second Circuit. Copying books in their entirety isn't transformative, and lending them for free competes with the publishers own book and ebook offerings, the unanimous panel said. Internet Archive said in a statement: We are disappointed in today's opinion about the Internet Archive's digital lending of books that are available electronically elsewhere. We are reviewing the court's opinion and will continue to defend the rights of libraries to own, lend, and preserve books. Further reading: Full-text of court opinion [PDF].
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Internet Archive Digital Lending Isn't Fair Use, 2nd Cir. Says

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  • Bullshit (Score:5, Insightful)

    by backslashdot ( 95548 ) on Wednesday September 04, 2024 @12:32PM (#64762152)

    The court is stupid. If these morons held the reins of power 250+ years ago, we'd have had no libraries. Libraries were essential to Western civilization. Not everyone can afford to purchase a book. If you really liked a book, you'd buy it. That system worked to reward authors sufficiently in the past, why not now?

    • by ulricr ( 2486278 )
      The decision, which you can read in detail at the link goes through ALL the detail of this vs borrowing books at the library. The court's decision is about whether the internet archive scanning and making digital copies of the physical books it has bought was fair use. They decided it was competing with the book publisher's own business of making and licensing digital copy of these books.
    • Re: (Score:2, Interesting)

      by XXongo ( 3986865 )

      The court said that the Internet Archive use of the work was not fair use according to the criteria for fair use written in the copyright act.. That seems to be legally accurate.

      Internet Archive's argument basically would have pretty much destroyed the existence of copyright. Maybe "information wants to be free," but authors want to be paid.

      • Re:Bullshit (Score:4, Informative)

        by taustin ( 171655 ) on Wednesday September 04, 2024 @01:02PM (#64762256) Homepage Journal

        No surprises on this ruling, and SCOTUS will very likely agree (and will likely get the chance to).

        For those who don't like it, the solution is to write your congresscritter. And campaign against them when they ignore you, which they likely will. And so on.

        If you can't replace them, then, well, welcome to democracy. You're in the minority.

        • Re: (Score:2, Interesting)

          by XXongo ( 3986865 )

          No surprises on this ruling, and SCOTUS will very likely agree

          Good.

          (and will likely get the chance to). For those who don't like it, the solution is to write your congresscritter.

          For those who don't think wrtiers should be paid, write your congresscritters and tell them. Or, better yet, don't.

      • Re:Bullshit (Score:4, Interesting)

        by Anonymous Coward on Wednesday September 04, 2024 @02:00PM (#64762420)
        The court said that the Internet Archive use of the work was not fair use according to the criteria for fair use written in the copyright act.

        Not technically correct. While 17 USC 107 says the court should consider "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes," the court has concluded that whether a work is "transformative" is a key consideration. That word is not present in the statutory section.

        I think it's the wrong lesson from Google Books. Yes, the inclusion of a searchable text database was transformative, and that transformative nature was crucial to the outcome, but it avoids the ancillary question from that case and the central one here: can I make an electronic copy of my legitimate print publication as long as I treat that electronic copy in a way indistiguishable from the original to the publisher? If we focus on that question, it'll lead to followups like whether the lender's avoided payment to third-party shippers matters to the market for the work, or whether by eliminating shipping time, you've allowed more people to read the existing copies and thereby reduced sales. Would we come to the same conclusion if IA limited their lending to include 4-day blackouts between a lending request and its return? Note that these are questions pertaining to the 4th market-effect factor rather than the 1st use factor and its purely judicial "transformative" prong of analysis.
      • by Bahbus ( 1180627 )

        Current copyright needs to be destroyed because its fucking awful and it doesn't actually favor authors in any way. It favors shitty publishers who don't do any real work and aren't necessary in the world.

        • by XXongo ( 3986865 )
          There are certainly aspects of current copyright law that don't work.

          But the original statement I was replying to, "the court is stupid," was uninformed, because the court interpreted copyright law according to the way it is written; it's not their place to say "we don't like that law".

      • authors want to be paid.

        They do. It's just they get paid for writing a book.

        Paid once. For the original manuscript.

        • authors want to be paid.

          They do. It's just they get paid for writing a book. Paid once. For the original manuscript.

          Since you don't even know that royalties exist, why the heck are you even commenting on a subject you're don't know anything about?

          • Since you don't even know

            Yeah, I "don't even know", which I why I said what I said. Poor, dumb me.

            Is it just me, or does it look like this site is becoming increasingly filled with functional illiterates?

            • by XXongo ( 3986865 )

              Since you don't even know

              Yeah, I "don't even know", which I why I said what I said. Poor, dumb me.

              Correct on all counts. You don't even know, you said what you said, and you are dumb.

              DO you know how royalties work?

              • DO you know how royalties work?

                Yes.

                Now that we cleared this, go back and re-read what I wrote.

                • by XXongo ( 3986865 )

                  DO you know how royalties work?

                  Yes. Now that we cleared this, go back and re-read what I wrote.

                  OK. What you wrote was "It's just they [authors] get paid for writing a book. Paid once. For the original manuscript."

                  No. Authors do not get "paid once. For the original manuscript." They get paid royalties on sales of books.

                  This is the third time you've asserted you know how royalties work, without a single word in any of these posts suggesting that you do know how royalties work.

                  • No. Authors do not get "paid once. For the original manuscript." They get paid royalties on sales of books.

                    Okay, let me rewrite, in the form of a syllogism:

                    Major: Writing a book is a service a book writer provides once.

                    Minor: It is unjust for some to be paid only once for having once provided a service, while others are paid repeatedly, continuously, for having once provided a service.

                    Conclusion: Therefore, it is just that a book writer be paid once for their once-provided service of writing a book.

                    Corollary 1: It is unjust that copyright law grants writers the right, not afforded to, say, plumbers, to be paid r

    • by Shaitan ( 22585 )

      Yeah, on the other hand I've downloaded a dozen pdf's from these guys over time and never even had to create an account let alone return anything. Nothing has ever even suggested I should.

      • Re:Bullshit (Score:4, Insightful)

        by AmiMoJo ( 196126 ) on Thursday September 05, 2024 @07:25AM (#64764698) Homepage Journal

        The Internet Archive has an issue with books. If they scan them themselves the books go into the lending system with DRM, and you can't just download a PDF. But if someone scans a book and uploads it, anyone can download it, no account needed, no DRM.

        Same goes for music. If IA rip the disc, only samples are available. If someone uploads their own rip, anyone can download it.

        It's massive copyright infringement. They won't even go to the effort of adding a check box for uploaders that says "this item needs restrictions due to copyright".

    • Re:Bullshit (Score:4, Interesting)

      by kurkosdr ( 2378710 ) on Wednesday September 04, 2024 @04:04PM (#64762984)
      Because whatever "first-sale doctrine" rights you have, they only exist in the physical realm. There are numerous arguments as to why it's this way, from copyright lobbies having more political power now than they had in the past (and as a result your "first-sale doctrine" rights never got expanded into the digital realm), to the argument that having to physically transport the physical copies or having to go to a place to access them makes borrowing and lending more tedious (especially if it has to be done multiple times) and hence incentivizes purchases.

      But the clue of the story is the same: Whatever "first-sale doctrine" rights you have, they only exist in the physical realm.

      It's also the reason I am sad RedBox went down (which btw happened because of incompetence not related to the rental kiosks), because now the studios can dictate their terms to the streaming services without any competition from physical rentals.
  • by mysidia ( 191772 ) on Wednesday September 04, 2024 @12:35PM (#64762158)

    Internet Archive's "controlled digital lending" system and removal of controls during the pandemic don't qualify as fair use

    My major question is: Has the 2nd Circuit said anything about Fair use of Controlled Lending without removal of controls, Or is this a narrow decision ?

    I would say there is probably never any real question that they should Lose the argument that they can remove controls and claim Fair Use. For surely they should. They took it upon themselves to do something that was not possible with traditional lending - which was to create additional lendable units without procuring the physical copies for those. They NEEDED a legislative memory, and during the emergency was a time where they very well could have had a chance to get that remedy.

    The removal of controls without authorization by congress should have been 100% expected to fail as fair use from the beginning: the IA was obviously gravely in the wrong from the start. And they've been doing the public a huge disservice to fight this and get a possibly bad precedent set.

    • by backslashdot ( 95548 ) on Wednesday September 04, 2024 @12:52PM (#64762210)

      The ruling was clear that they were against it even with controls. Relevant quote:
      "This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no. We therefore AFFIRM."

    • Internet Archive's "controlled digital lending" system and removal of controls during the pandemic don't qualify as fair use

      My major question is: Has the 2nd Circuit said anything about Fair use of Controlled Lending without removal of controls, Or is this a narrow decision ?

      The lower court decision went into this. They profess to digitally lend materials they own on a one-to-one basis. In practice they set up a scheme with "partner libraries" where they could lend copies the "partner libraries" owned without any coordination with the partner libraries lending systems. They and the partner libraries used this scheme as a means to bypass the licensing, payments, and simultaneous lending issues.

  • by Thud457 ( 234763 ) on Wednesday September 04, 2024 @12:56PM (#64762226) Homepage Journal
    oh, ok, I see how it is.

    It's perfectly fine for the POPO to automate surveillance and for greedy companies to hoover up personal information ad infinitum.

    But real live human people can't be allowed to freely copy information if there's even the slightest possibility that someone can monetize it.
    • Excellent point. And not only do firms like Meta screw every user by selling their data to brokers, but users are fine just fine with it. Because it insulates the users in safe little bubbles where everyone will like their stupid posts and family photos. Nobody really cares. It is a "like or not be liked" psychological manipulation operation, all of them are. Psychologists are complicit. No respect for these people
  • by Eunomion ( 8640039 ) on Wednesday September 04, 2024 @01:07PM (#64762272)
    Free heat and light "unfairly competes" with the poor oppressed trust-fund babies who have invested their hard-inherited money in businesses that generate these things with the hope of profit.

    Next on the agenda: Does rain unfairly compete with Nestle bottled water?
    • by kellin ( 28417 )

      Nestle's president is already on record (something I read a few years back) saying that water shouldn't be free..

      • Sunlight, rain, and air are woke Communist plots to sap and impurify the manly spirit of the pure white Christian. -Republican platform, probably
      • by zlives ( 2009072 )

        yes he is clearly paying for all the water he is bottling up and selling :)

  • Comment removed based on user account deletion
  • I see no reason why this ruling couldn't be applied directly to your local public library. What and obscene judgement they've made.

    • by Powercntrl ( 458442 ) on Wednesday September 04, 2024 @02:55PM (#64762676) Homepage

      I see no reason why this ruling couldn't be applied directly to your local public library. What and obscene judgement they've made.

      My local library is only realistically accessible by car and their selection absolutely sucks. That seems to be why the copyright lords allow the old school way of borrowing books to still exist. Borrowing books online just makes it too convenient for their liking.

    • by ledow ( 319597 )

      Newsflash - your local library can't just choose to scan all their books and put them on the Internet for literally anyone in the world to read for free either.

      • by Budenny ( 888916 )

        Not what the Archive (openlibrary.org) does. It has one paper copy, which it then digitizes and lends to only one person at a time. It uses exactly the same control method as Overdrive uses, (Adobe) so the same method as public libraries use for electronic lending. The usual lending period was two weeks, but a lot of titles are now one hour with renewal if not requested by another subscriber.

        What they did during the pandemic was stupid and wrong, they lent more copies at the same time than they had pap

        • by ledow ( 319597 )

          Literally what the Archive does - they don't have permission to "lend" it to anyone online, no number of users at a time. And libraries can't do that without permission.

          I'm gonna take a shot in the dark and say that Overdrive has publisher's permission to do so. Oh look: "Through the years, weâ(TM)ve established long-term, trusted relationships with publisher, library and school partners around the world."

          And while the Archive still hosts complete MAME ROM sets, plus all kinds of movies and TV shows

  • by gbnewby ( 74175 ) * on Wednesday September 04, 2024 @01:31PM (#64762338) Homepage

    “We conclude that both Publishers and the public will benefit if IA’s use is denied.” (huh? p. 59.)

    They don't seem to understand how little money most authors receive. Article 11 of the Constitution is about fostering the creative arts, not about profit. Increasing availability of written works will foster creativity in the people who read those works.

    • There is no article 11 of the US Constitution. Care to give it a read and try again?

      The copyright and patent clause (Article I, Section 8, Clause 8) isn't about fostering the creative arts either. It's about serving the public interest by promoting the progress of science and the useful arts, but not about promoting progress at all costs.

  • by WolfgangVL ( 3494585 ) on Wednesday September 04, 2024 @02:35PM (#64762580)

    The original deal was 14 years. 14 years 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.

    The first Act extended the copyright to December 31, 1965
    the second Act extended it to December 31, 1967;
    the third Act extended it to December 31, 1968;
    the fourth Act extended it to December 31, 1969;
    the fifth Act extended it to December 31, 1970;
    the sixth Act extended it to December 31, 1971;
    the seventh Act extended it to December 31, 1972;
    the eighth Act extended it to December 31, 1974;
    the ninth Act extended it to December 31, 1976,
    The Copyright Act of 1976 finally extended the copyright through the end of 1982 (75 years from the end of the year in which the copyright was originally secured).

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