The plaintiffs in this action, four book publishers, allege that the defendant, an organization whose professed mission is to provide universal access to all knowledge, infringed the plaintiffs’ copyrights in 127 books (the “Works in Suit”) by scanning print copies of the Works in Suit and lending the digital copies to users of the defendant’s website without the plaintiffs’ permission. The defendant contends that it is not liable for copyright infringement because it makes fair use of the Works in Suit.
…In the two years after the NEL, IA’s user base increased from 2.6 million to about 6 million…. As of 2022, IA hosts about 70,000 daily ebook “borrows.” …
…IA argues, however, that this infringement is excused by the doctrine of fair use.
...There is nothing transformative about IA’s copying and unauthorized lending ..
…IA argues that because most of the Works in Suit were published more than five years before IA copied them, IA has not interfered with the authors’ “right to control the first public appearance of [their] expression.”… Published works do not lose copyright protection after five years….
...It is true that copying an entire work is sometimes necessary to make a fair use of the work… In this case, however, IA copied the Works in Suit wholesale for no transformative purpose...
… In this case, there is a “thriving ebook licensing market for libraries” in which the Publishers earn a fee whenever a library obtains one of their licensed ebooks from an aggregator like OverDrive…. This market generates at least tens of millions of dollars a year for the Publishers….
....At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction. ...
Yeah, from that excerpt (I'm about to go to bed and not reading the full opinion just yet) Internet Archive had some really weak ground to claim fair use.
Yeah, from that excerpt (I'm about to go to bed and not reading the full opinion just yet) Internet Archive had some really weak ground to claim fair use.
Yeah, I love IA as an organization and I wholeheartedly support their core mission (digital archiving), but this ending to the lawsuit was inevitable. If Google had to start highly restricting...
Yeah, I love IA as an organization and I wholeheartedly support their core mission (digital archiving), but this ending to the lawsuit was inevitable. If Google had to start highly restricting public access to all the books they have scanned over the years, then there is no way in hell IA was going to succeed where they failed.
And TBH, I kinda feel like IA has gotten a bit too bold lately, and hope they start focusing more on the good they actually can do under the current copyright laws instead of wasting money futilely fighting against them. Keep archiving copyrighted books, movies/shows, games, etc, sure... but keep all that data mostly private. Because IMO losing lawsuit after lawsuit for distributing that copyrighted material to the public under the guise of "fair use" is not a good strategy.
Agreed. I am more frustrated at IA for putting themselves recklessly at risk like this given the current copyright/IP landscape. It seems counter to their mission.
Agreed. I am more frustrated at IA for putting themselves recklessly at risk like this given the current copyright/IP landscape. It seems counter to their mission.
I certainly wasn't expecting them to win, I generally expect the courts to side with copyright holders most of the time regardless of relative merit, but assuming I'm understanding the nuances...
I certainly wasn't expecting them to win, I generally expect the courts to side with copyright holders most of the time regardless of relative merit, but assuming I'm understanding the nuances correctly I can at least see where they were coming from: format shifting is fair use, library sharing is legal, so format shifting for the purpose of library lending doesn't strike me as such a huge departure.
Philosophically it does strike me as a level of hypocrisy from the publishers. If copyright covers the content of the work, then physical medium should be fungible. Their underlying purpose here is to protect OverDrive, a more expensive and more restrictive digital lending service, by tying the copyright protection to the medium of purchase - if they only license self-destructing digital copies, libraries are forced to pay for those copies repeatedly, and the libraries being allowed to convert their existing physical copies to digital would threaten this.
The relatively good news is that the case here was specifically around the lending part, so their archival mission is still protected:
[Internet Archive] also may use its scans of the Works in Suit, or other works in its collection, in a manner consistent with the uses deemed to be fair in Google Books and HathiTrust.
It is the most logical, yes. But copyright holders won that battle years ago, so they can legally double-dip. They've been trying to bring libraries to their knees anyhow. The modern copyright...
Philosophically it does strike me as a level of hypocrisy from the publishers. If copyright covers the content of the work, then physical medium should be fungible
It is the most logical, yes. But copyright holders won that battle years ago, so they can legally double-dip. They've been trying to bring libraries to their knees anyhow. The modern copyright juggernaughts never liked the fact that physical copies could be lended out without them getting a cut. They welcome the death of DVD and Bluray
The 'pay per rental' model for library ebooks is unsustainable. I think there is going to need to be legal action to enforce reasonable constraints on the publishers. Ebooks need to be treated the same as physical books: with the license fully transferable.
In that vein, a government-run NFT is actually a half-decent concept, if what was being stored was a list of transferable copyright licenses, ala my ebook, movie, and music purchases, and it would at least bring existing first-sale back.
Philosophically I think we need to switch to a model that funds creation, on condition of free distribution. But copyright holders, especially distributors, are generally opposed to that, given how it'd strip them of control. I personally think this would be a net good, as the whole justification of copyright was to facilitate creation of creative works. We've learned that people are happy to create if they have the time, regardless of compensation.
It might kill multi-million-dollar blockbusters, but it'll probably bring back local music scenes and expand market for indie films. A net win in my book.
There was a weird NFT trend where an artist would destroy their art and sell an NFT of it to somehow pretend that the art was "transformed" into the NFT and... uh, no, that's not how it works,...
There was a weird NFT trend where an artist would destroy their art and sell an NFT of it to somehow pretend that the art was "transformed" into the NFT and... uh, no, that's not how it works, it's just a trick.
Similarly I don't see it working here.
But I can see why they tried. Copyright law is not natural, it's a messy compromise between publishers (and artists) and everyone else. The Internet is built on pushing the limits on copyright. Computers make lots of incidental copies of digital data while distributing it. Also, search engines copy web pages while indexing them. Google and Bing make their own copies of the Internet when they crawl. (Google used to have a link to their cached copy in their search results.)
It's pretty well established now that these copies don't count as a copyright violation when they're not shared with others. In the early days of the Internet, it was a legal grey area. The pragmatic solution was that if you don't want search engines to make a copy, put up a robots.txt file, and the courts pretty much went along with it. Perhaps because it's consent-based, though it's opt-out rather than opt-in?
This is how the Internet Archive works too; if someone wants their content taken down, they take it down. Also, it helps that nobody uses the Internet Archive if there's a better alternative, because it's somewhat hard to use.
Similarly, YouTube is built on blatant copyright violation that eventually evolved into a messy compromise where publishers consent to allowing people to upload copies most of the time, in return for being paid something. Every day, I am glad this succeeded.
So it seems like the goal in these situations is to push the limits and get the copyright holders to go along with it, somehow. But for the compromise to work, the publishers need to see some benefit. One benefit is helping with marketing (as a search engine does) and another is if there's a way of paying them off. But the Internet Archive doesn't help people find books to buy, and they don't have the revenue stream to pay them off, either.
The long-established messy compromise for libraries is that publishers publish books physically, libraries buy them, and they loan them out. Just like always. If you don't want to go to a library then you can buy a book online.
I think a big part of my frustration is that the publishers talk a big game about fairness, and reasonable compromise, and give-and-take when they're in court, and they are genuinely subject to...
I think a big part of my frustration is that the publishers talk a big game about fairness, and reasonable compromise, and give-and-take when they're in court, and they are genuinely subject to pretty pervasive infringement, but as soon as their legal position is secure it becomes "Digital lending? Sure, that'll be $50 per copy, and it comes with more restrictions than the $10 paperback. Also it self-destructs in two years and you have to pay all over again. Because fuck you, that's why.". Between that and the fact that copyright was pushed from a couple of decades to a couple of lifetimes, I find it hard to give them the benefit of the doubt.
Something that really clicked when I was reading your post is that back in the physical media days, copying was pretty much always synonymous with duplicating - the only reason to copy would be to actually have and make use of more instances of the thing than you started with. Maybe reframing the modern law around the distinction between usage and duplication would be a cleaner way to approach it, rather than trying to bend it all into the historical definition of copying?
That price does sound high. Now that the pandemic is over, I wonder if libraries will cut back on e-books and go back to circulating more physical books? It seems like the most viable alternative...
That price does sound high. Now that the pandemic is over, I wonder if libraries will cut back on e-books and go back to circulating more physical books? It seems like the most viable alternative when publishers are charging too much.
But I wonder what the total cost of ownership for libraries is for circulating physical books, including shelf space and stuff like that?
Just got a fundraising email from IA, and I can't help but feel it's a pretty disingenuous spin on the ruling. :(
Just got a fundraising email from IA, and I can't help but feel it's a pretty disingenuous spin on the ruling. :(
The Fight Continues
Here at the Internet Archive, we’re deeply grateful for our community—the partners, patrons, and donors who help us thrive. Your support has proven especially valuable during a lawsuit brought by four major publishers that has aimed to put a stop to our library lending.
A lower court decision released on Friday ruled in favor of the publishers. This is a blow to all libraries and the communities we serve—but the fight is far from over.
We will appeal this judgment, continuing to defend the rights of libraries to serve their patrons, and the rights of readers to access books. We will also continue our work as a library. This case does not challenge many of the services we provide with digitized books, including interlibrary loan, access for the print-disabled, and ongoing donation and preservation of books.
Libraries are a pillar of democracy. They have an age-old role in providing access to knowledge for marginalized communities and preserving knowledge for future generations. As we push forward with our vital work, we hope that you’ll continue to stand with us.
We are powered by donations from individuals like you. If you find our services useful, please consider contributing to help us in our mission to build the web we deserve.
Excerpts from the judge's ruling:
Yeah, from that excerpt (I'm about to go to bed and not reading the full opinion just yet) Internet Archive had some really weak ground to claim fair use.
Yeah, I love IA as an organization and I wholeheartedly support their core mission (digital archiving), but this ending to the lawsuit was inevitable. If Google had to start highly restricting public access to all the books they have scanned over the years, then there is no way in hell IA was going to succeed where they failed.
And TBH, I kinda feel like IA has gotten a bit too bold lately, and hope they start focusing more on the good they actually can do under the current copyright laws instead of wasting money futilely fighting against them. Keep archiving copyrighted books, movies/shows, games, etc, sure... but keep all that data mostly private. Because IMO losing lawsuit after lawsuit for distributing that copyrighted material to the public under the guise of "fair use" is not a good strategy.
For a counter point: https://www.techdirt.com/2023/03/27/publishers-get-one-step-closer-to-killing-libraries/
Agreed. I am more frustrated at IA for putting themselves recklessly at risk like this given the current copyright/IP landscape. It seems counter to their mission.
I certainly wasn't expecting them to win, I generally expect the courts to side with copyright holders most of the time regardless of relative merit, but assuming I'm understanding the nuances correctly I can at least see where they were coming from: format shifting is fair use, library sharing is legal, so format shifting for the purpose of library lending doesn't strike me as such a huge departure.
Philosophically it does strike me as a level of hypocrisy from the publishers. If copyright covers the content of the work, then physical medium should be fungible. Their underlying purpose here is to protect OverDrive, a more expensive and more restrictive digital lending service, by tying the copyright protection to the medium of purchase - if they only license self-destructing digital copies, libraries are forced to pay for those copies repeatedly, and the libraries being allowed to convert their existing physical copies to digital would threaten this.
The relatively good news is that the case here was specifically around the lending part, so their archival mission is still protected:
It is the most logical, yes. But copyright holders won that battle years ago, so they can legally double-dip. They've been trying to bring libraries to their knees anyhow. The modern copyright juggernaughts never liked the fact that physical copies could be lended out without them getting a cut. They welcome the death of DVD and Bluray
The 'pay per rental' model for library ebooks is unsustainable. I think there is going to need to be legal action to enforce reasonable constraints on the publishers. Ebooks need to be treated the same as physical books: with the license fully transferable.
In that vein, a government-run NFT is actually a half-decent concept, if what was being stored was a list of transferable copyright licenses, ala my ebook, movie, and music purchases, and it would at least bring existing first-sale back.
Philosophically I think we need to switch to a model that funds creation, on condition of free distribution. But copyright holders, especially distributors, are generally opposed to that, given how it'd strip them of control. I personally think this would be a net good, as the whole justification of copyright was to facilitate creation of creative works. We've learned that people are happy to create if they have the time, regardless of compensation.
It might kill multi-million-dollar blockbusters, but it'll probably bring back local music scenes and expand market for indie films. A net win in my book.
There was a weird NFT trend where an artist would destroy their art and sell an NFT of it to somehow pretend that the art was "transformed" into the NFT and... uh, no, that's not how it works, it's just a trick.
Similarly I don't see it working here.
But I can see why they tried. Copyright law is not natural, it's a messy compromise between publishers (and artists) and everyone else. The Internet is built on pushing the limits on copyright. Computers make lots of incidental copies of digital data while distributing it. Also, search engines copy web pages while indexing them. Google and Bing make their own copies of the Internet when they crawl. (Google used to have a link to their cached copy in their search results.)
It's pretty well established now that these copies don't count as a copyright violation when they're not shared with others. In the early days of the Internet, it was a legal grey area. The pragmatic solution was that if you don't want search engines to make a copy, put up a robots.txt file, and the courts pretty much went along with it. Perhaps because it's consent-based, though it's opt-out rather than opt-in?
This is how the Internet Archive works too; if someone wants their content taken down, they take it down. Also, it helps that nobody uses the Internet Archive if there's a better alternative, because it's somewhat hard to use.
Similarly, YouTube is built on blatant copyright violation that eventually evolved into a messy compromise where publishers consent to allowing people to upload copies most of the time, in return for being paid something. Every day, I am glad this succeeded.
So it seems like the goal in these situations is to push the limits and get the copyright holders to go along with it, somehow. But for the compromise to work, the publishers need to see some benefit. One benefit is helping with marketing (as a search engine does) and another is if there's a way of paying them off. But the Internet Archive doesn't help people find books to buy, and they don't have the revenue stream to pay them off, either.
The long-established messy compromise for libraries is that publishers publish books physically, libraries buy them, and they loan them out. Just like always. If you don't want to go to a library then you can buy a book online.
I think a big part of my frustration is that the publishers talk a big game about fairness, and reasonable compromise, and give-and-take when they're in court, and they are genuinely subject to pretty pervasive infringement, but as soon as their legal position is secure it becomes "Digital lending? Sure, that'll be $50 per copy, and it comes with more restrictions than the $10 paperback. Also it self-destructs in two years and you have to pay all over again. Because fuck you, that's why.". Between that and the fact that copyright was pushed from a couple of decades to a couple of lifetimes, I find it hard to give them the benefit of the doubt.
Something that really clicked when I was reading your post is that back in the physical media days, copying was pretty much always synonymous with duplicating - the only reason to copy would be to actually have and make use of more instances of the thing than you started with. Maybe reframing the modern law around the distinction between usage and duplication would be a cleaner way to approach it, rather than trying to bend it all into the historical definition of copying?
That price does sound high. Now that the pandemic is over, I wonder if libraries will cut back on e-books and go back to circulating more physical books? It seems like the most viable alternative when publishers are charging too much.
But I wonder what the total cost of ownership for libraries is for circulating physical books, including shelf space and stuff like that?
Just got a fundraising email from IA, and I can't help but feel it's a pretty disingenuous spin on the ruling. :(