Internet Archive Loses in Court. Judge Rules They Can't Scan and Lend eBooks
source link: https://yro.slashdot.org/story/23/03/25/0112229/internet-archive-loses-in-court-judge-rules-they-cant-scan-and-lend-ebooks
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Internet Archive Loses in Court. Judge Rules They Can't Scan and Lend eBooks
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The Verge reports:
A federal judge has ruled against the Internet Archive in Hachette v. Internet Archive, a lawsuit brought against it by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library. Judge John G. Koeltl decided that the Internet Archive had done nothing more than create "derivative works," and so would have needed authorization from the books' copyright holders — the publishers — before lending them out through its National Emergency Library program.
The Internet Archive says it will appeal.
The decision was "a blow to all libraries and the communities we serve," argued Chris Freeland, the director of Open Libraries at the Internet Archive. In a blog post he argued the decision "impacts libraries across the U.S. who rely on controlled digital lending to connect their patrons with books online.
It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.
The Verge adds that the judge rejected "fair use" arguments which had previously protected a 2014 digital book preservation project by Google Books and HathiTrust:
Koetl wrote that any "alleged benefits" from the Internet Archive's library "cannot outweigh the market harm to the publishers," declaring that "there is nothing transformative about [Internet Archive's] copying and unauthorized lending," and that copying these books doesn't provide "criticism, commentary, or information about them." He notes that the Google Books use was found "transformative" because it created a searchable database instead of simply publishing copies of books on the internet.
Koetl also dismissed arguments that the Internet Archive might theoretically have helped publishers sell more copies of their books, saying there was no direct evidence, and that it was "irrelevant" that the Internet Archive had purchased its own copies of the books before making copies for its online audience. According to data obtained during the trial, the Internet Archive currently hosts around 70,000 e-book "borrows" a day.
Thanks to long-time Slashdot reader esme for sharing the news.
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He notes that the Google Books use was found "transformative" because it created a searchable database instead of simply publishing copies of books on the internet.
So all they have to do is make their collection searchable for it to be transformative use? Righto!
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He notes that the Google Books use was found "transformative" because it created a searchable database instead of simply publishing copies of books on the internet.
So all they have to do is make their collection searchable for it to be transformative use? Righto!
Or... they need the better / more expensive lawyers Google has.
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The clever thing to do would have been to implement search in the first place, then Google would have had a reason to come to their rescue.
It's not unclever to do it now, though.
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I submit that there are numerous questions which could be answered, and more than one of them are important.
What makes libraries special is that they lend freely information you would otherwise have to pay to see.
But where will you copy it to? And it won't help evade the law as long as they have a presence here, anyway.
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This kind of ruling is what you get when senile barely-literate octagenarians who can't even open up their own email get to make rulings about digital space. An expiring digital copy is no different from an existing physical copy required to be returned, save that the library has a better recourse (the forced expiry of the digital) rather than having to hunt down / impose fines on / possibly sue under civil statutes the person who failed to return, or possibly damaged, the original.
The publicly accessible
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The archive is already searchable, the problem is that the judge is a senile octagenarian digital retard.
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I don't recall Google Books ultimately winning, I believe they ended up having to come to an agreement with publishers for what little remains of the service. I'm not sure what the above refers to, but it certainly wasn't a lawsuit that ended up with Google Books being 100% legal and in the clear.
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No, they won. Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).
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Oh well that's positive. A rare positive.
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Books are dead! At the very least dead trees.
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That doesn't seem to be the ruling here at all. There's nothing wrong with ebooks. You just can't openly and blatantly violate the most basic principle of copyright, which appears to be what IA did based on what I've seen of this case. I don't know how they ever thought their lending model was legal or what chance they thought they had of winning in court. They seem to be relying on a "we did it with good intentions" argument, but that's not how most legal systems work, and for good reason.
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Their lending model works like this. They purchase a paper copy of the book, scan it to digital format, and then lend out the digital copy to one person at a time. Their argument is that this is no different than lending out the paper copy that they legally own to one person at a time. It is not as cut and dry as you make it out to be.
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It is that cut and dried, though. IA still has both the paper and original electronic copies in its possession. In contrast, a traditional library doesn't have the copy of the book it loans out. Making that electronic copy, and making another copy to loan out, are both controlled by copyright law.
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But does copyright itself recognize different types of media? That seems to be the licensing game publishers try to pull rather than a core tenet of copyright.
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Yes, copyright law has a number of aspects that address different media. Under US federal law [copyright.gov], anyone must have permission from the copyright owner "to reproduce the copyrighted work in copies or phonorecords", unless one of the statutory or regulatory exemptions apply. Some of the exemptions are very specific about the format of the copyrighted work (audio, audiovisual, sculptural, and so forth). One of [copyright.gov] the exemptions specifically allows people to copy computer programs into the computer memory for the p
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Unless 'a normal library' loses its copy of the e-book if the borrower's device dies, then the library does indeed end up with two copies of the e-book: 1 on their server, and the 2nd on the users device.
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Yes, but those libraries have different licenses for e-books. Libraries do not automatically have e-book-like licenses for books that they buy in paper format, which is why Internet Archive lost here. US copyright law is very specific [copyright.gov] on what libraries can and cannot automatically do with books (absent an e-book license from the copyright owner).
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That's a misrepresentation of the law, IMO. The "e-book" thing is a red herring. Nothing in the law says that a copy of a book must be in paper form, and scanning of a work and presenting it as an image does not create a new work in any meaningful sense, so no derivative work was created in doing so. The only restrictions on digital distribution in that section are in parts (b) and (c), which apply only if the library is creating three copies per physical copy of the work, rather than one.
The grey area,
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Sorry, that should be 121(a) Limitations on exclusive rights: Reproduction for blind or other people with disabilities.
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That's arguably true, and by that interpretation, they could only legally loan out the number of copies that they own in physical form minus one. In the grand scheme of things, though, that sort of off-by-one error is noise compared with not limiting the quantity at all.
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Except it is cut and dry. Copyright law doesn't say you can only lend out as many copies as you have. It says you can't make copies without permission, or without falling within an applicable exception in the law, and it says that you can't lend copies unless they were lawfully made or again, you have permission.
That's how it keeps you from lending out more copies than you have -- you can't make more and can't lend any you made yourself, or you got permission (probably in exchange for a substantial licensing fee).
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Are the authors of the books still alive? If not it needs to be public domain including written music.
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So if an author and their family spend several years living in poverty while writing a masterpiece that would have brought them a well-earned reward, and the author is then unlucky enough to fall under a bus the day after publication, you think all the expected economic benefit of writing and publishing that book should immediately disappear for the author's estate? That doesn't seem fair. The idea of publishing books within a copyright-based legal framework is that if a book is successful then you can enjoy the economic rewards. That's the incentive that makes it worth investing the time and taking the risk of creating the work in the first place. If you take away that reward at the worst possible time if an author is unlucky but others who have sacrificed to help the book get created are still with us then you're not living up to your side of the bargain.
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So if an author and their family spend several years living in poverty while writing a masterpiece that would have brought them a well-earned reward, and the author is then unlucky enough to fall under a bus the day after publication, you think all the expected economic benefit of writing and publishing that book should immediately disappear for the author's estate?
Immediately? No.
After a certain time? Yes.
And it should be a much shorter time than the time established in Mickey Mouse protection act.
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He's obviously referring to "author's life plus 75 years".
Seven years was the original deal. Read Sam Clemens's take on it.
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So if an author and their family spend several years living in poverty
That would be a failure of society for allowing such. People should not have to go into "poverty" just to pursue an interest. Children should not go hungry, people should not be evicted from their homes, and families should not live on the streets for the simple fact that a person wishes to pursue their interest. The society that you are putting forth as the one which we should derive a lesson from is a barbaric society that simply should not, and fortunately for the United States, does not exist. The world we live in is able to extract great wealth and advancement unlike any other age of man ever to have existed, that we have not completely stamped out poverty is not because people wish to chase after their dreams, it is because there exists a subset of mankind that wishes to own everything and leave nothing else for their fellow man. These publishers enshrine this mentality that impoverishes humanity, allows darkness and despair for those who wish to dream to endure, and continues the very ideal that one must go into complete destitution in order to somehow succeed. You sir, have bought hook, line, and sinker the bullshit these companies have fed you and like a good mongrel have regurgitated it on command.
The idea of publishing books within a copyright-based legal framework is that if a book is successful then you can enjoy the economic rewards
But this is hardly the case. Why do we have fifteenth edition of calculus books? Why do we have anti-consumer bullshit like online codes to unlock more information from the book that can only be used once online? Why do we have publishing companies that place great legal burden on book resalers? This is because the publishers take and authors must write. The J. K. Rowling's of the world are such because they are rare. We don't regularly talk about these mega million authors because it's not a regular thing. Publishers pay pittance to the authors that write the books. Whatever economic reward you think there is, it is a lie sold to you. They point out look at this J. K. Rowling, look at this George R.R. Martin, and tell you that "YOU TOO COULD BE THIS PERSON!!" Only that is not the case, 99% chance you will be someone who writes a book and sees "economic reward" similar to a junior data analysis at a investment bank. And then only for a few years, then you will have your publisher indicate to you that they need a new version of your book or they need new material. Otherwise they'll toss you onto the reduced royalties that will pay you roughly the wage of most grocery store managers. Again, your statement here is based in fiction that these companies have sold to you.
That's the incentive that makes it worth investing the time and taking the risk of creating the work in the first place.
Clearly you have never written a book. There are tens of millions of books written every year. No person thinks they're winning the lotto and being the next Stephenie Meyer. This is like asking anyone who programs why they just don't write an app and retire on the profit they gain. It's a absolutely naive statement you have made here.
If you take away that reward at the worst possible time if an author is unlucky but others who have sacrificed to help the book get created are still with us then you're not living up to your side of the bargain
Clearly you've not seen legal disputes between estates and publishers. That bargain is only as good as the family can produce lawyers, if they were impoverish to begin with, that publisher is absolutely going to run them over. What are they going to do? Sue? They need money to hire a lawyer that will put up a good enough defense against their team of lawyers.
Your comment is woefully uninformed of the realities in this world and full of corporate boot licking platitudes. There's no part of what you have
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Yes. That is exactly what should happen.
I had cancer and had my leg amputated as a result. That isn't fair either. Life sucks. Get over it.
Yes, that is absolutely true, and that is why copyright was created. BUT, copyright should immediately disappear upon death. If you are dead then you no longer have any need for the economic benefits of copyright.
What about your family? Copyright was created to benefits authors. It was not created to be a welfare system. If I die tomorrow should my employer
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That's not an issue the court cares about in this case, and also that's a stupid system. Copyright term length should not be based on life of the author in any respect; a term of years, preferably short but with some additional terms if requested timely, is better. It's more predictable for everyone to arrange their affairs around, it's almost always just as good for authors and publishers, it's definitely better for the public, and it worked great for centuries so it's got that in its favor too.
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I heard an NPR bit that the publishers even want to go after regular libraries and increase their fees.
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Of course publishers act like psychopathic corporations and want to sacrifice all social good for profit.
It's the Court's job to tell them to go to hell.
Sorry, the Law can support any side of an argument it's so complex - a judge needs to judge.
Corruption, of course, is usually effective.
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Napster started music piracy on the internet, and what finally stopped music piracy for the most part was Streaming. Giving people a fair and convenient way to pay to use the content. Take that away, and people aren't simply going to submit to whatever wishful price-gouging that these companies have in mind, they are just going to find ways to get that content for free and pay those companies nothing instead.
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Engadget [engadget.com] has more details. Of particular importance:
Before March 2020, the Internet Archive’s Open Library program operated under what’s known as a controlled digital lending [wikipedia.org] system, meaning there was often a waitlist to borrow a book from its collection..
However, when the pandemic hit, The Internet Archive decided to launch the “National Emergency Library” during the early days of the pandemic where it lifted the restrictions of controlled digital lending. IOW, they no longer only lent according to the number of physical volumes they had.
If this angle is correct, it's hardly surprising that the publishers reacted.
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Yup. At that point they're a publisher. But the slap down appears to be they can't lend them out in electronic form at all, even on a per-copy basis, and maybe they'll win that on appeal so long as the physical copies stay locked away.
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The reality is that they were probably never acting within the confines of the law. If they want to lend out their physical copies, they have a way of doing so. Those copies could be mailed. It's likely, however, that the controlled digital lending program might not have ever ended up in litigation as it's not clear that enough could be claimed in damages. However, the "emergency lending" program had no legal leg to stand on and I have no idea why they even wasted time going to court.
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After 5 years, any book that is not available in the market (not including "second-hand" market), aka "the publisher won't allow you to obtain a legal copy", will be available on a National Print-On-Demand System, which will pay royalties to CREATORS directly.
This requires all publishers to send a copy of all published works in PDF using a compatible page size with the print-on-demand system.
There, fixed: you publishers shit on users, then, users get power.
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"Of course all of the books we have are currently on the market", the hypothetical lawyer argued.
"And where is that?" The author replied, skeptically.
"In our book store of course, it's located and open to the public 5 days a week, between the hours of 11am and 3pm, we have copies of it available for purchase at all times and on display"
"You mean the book store that's located around back in the lumber yard, through the unmarked door, behind the sign saying 'Beware the Leopard?'"
"Yes absolutely, that
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Yeah, that's about what I expected would happen.
There's no doubt whatsoever that this is a prima facie infringement -- copies are being made and distributed.
The question was whether there were any exceptions to copyright that this could fall within.
Fair use was always going to fail. Typically courts consider four factors from the fair use statute (17 USC 107) in determining whether a particular use was fair or not. These are 1) The purpose and character of the use, including whether it is for commercial purposes or nonprofit educational purposes; 2) The nature of the work; 3) The amount and substantiality of the portion used; and 4) the effect of the use on the potential market for or value of the work. It's not mathematical, and the factors may not have equal weight. It's very fact dependent. And the same use in different circumstances may change from being fair to unfair or vice versa. In practice, I would say that factor four tends to be key more often than not, but that doesn't mean it should always control.
Anyway, here the issue was going to be factors 1 and 4. Factors 2 and 3 are solidly against the Internet Archive -- the works included all kinds, such as fictional works (protected more than factual ones) and they were copied in full.
Factor 1 includes whether the use is transformative, that is whether the work is being added to or changed meaningfully into something else. This wasn't transformative; the books are still books. Changing their format from hardcopy to electronic doesn't add or change anything. The Court did get it wrong when it said that it was the preparation of a derivative work; it's not that either. It's just straight-up copying, just as if one took a photograph that slavishly reproduced an oil painting.
Things like Google Book Search were transformative in that a searchable book archive is not the same thing as the books in it. But the Archive wasn't making anything like that; they just wanted to lend books basically as usual. (And note that Google Books is careful not to effectively make scanned, copyrighted books readable in full without permission)
Factor 1 also includes the commercial / nonprofit angle. Commercial uses can be fair uses (many parodies are commercial, for example) but fair use is likelier for nonprofits. Here, the Archive was basically just trying to dodge paying licensing fees, and apparently used the free books as a draw to bring in members who might donate, etc. This was in the nature of a commercial use.
Factor 4 was always going to be bad; there is an existing market for ebooks and for ebooks sold or licensed to libraries, and this threatened to totally upend it. Usually good success on this factor comes from uses for which there is no market and not likely to be one (e.g. quoting sources in school papers, or recording videos off of the tv for delayed viewing (The famous Betamax case did not permit people to make their own libraries of permanent recordings), or spaceshifting music from CDs to mp3 players -- at a time when there wasn't much of an mp3 market.
Note also that the only issue is harm -- if a fair use happens to benefit the copyright holder, that's irrelevant.
As for the idea that a scheme (often suggested by online folks) whereby only one copy could be used at a time, making it just like lending of pre-made copies under the first sale doctrine, would help, it was well known from the ReDigi case 10 years ago that that is meaningless. The law prohibits making new copies and distributing unlawfully made copies. The number of copies floating around isn't relevant.
This was all immediately obvious on day one. I have never for the life of me understood why the Internet Archive wanted to take such a stupid risk, and I hope that it doesn't end up killing useful things like the Wayback Machine.
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With the original "controlled lending" program, Factor 4 might have somehow gone in their favor if IA could come up with an argument. But the minute they lent out more copies than they owned, they set themselves up for a loss and I have no idea why they would even bother to go to court.
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I don't think so. Even then the relatively low-priced hardcopies, and scans of them that can be used indefinitely, would displace recurring licensing fees. There is a market for e-book licensing to libraries, and this would negatively affect it.
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Fair use was moot. The relevant exception is 108. Limitations on exclusive rights: Reproduction by libraries and archives [copyright.gov].
Ignoring, for the moment, the question of whether they would legally be required to keep one extra physical copy in reserve beyond the number of copies they loaned out, to avoid having to rescan the book whenever the last digital copy was distributed, as long as they were distributing a single copy, even digitally, their use case fell squarely within the exemption in section 108(a), and
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Lets see
If you remove all authors, no more books get created, thats bad.
If you remove all readers, no more books will be read, thats bad.
if you remove all publishers, no more lawsuits, thats ba... well, hmm, let me think... i think something here is unneeded
Anyway i wish we would be able to pay Authors for their contribution fairly and not restrict who has access to it. Sadly the world still seems stuck on a system designed when copying was an expensive process -
The life of copyrights keeps getting extended and it is well beyond what is reasonable. I think something like the life of the creator, or 20 years from date of publication, whichever is longer, is quite reasonable as an absolute limit. With an exception. If the work is unpublished for 10 years, it loses its copyright protection. There's a lot of stuff that is still under copyright protection that you can not legally obtain because of the unreasonably long copyright length.
Those are just example time pe
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A 77yr old white judge who has absolutely zero clue what he is taking about. IA is in the right here and anyone who thinks otherwise can lick the inside of my asshole.
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