This came up a bunch on the last thread we had about this. There's a saying among lawyers, "bad facts make bad law". Courts are going to render a verdict, usually, based on legal principles and with broad applicability. But they actual process they're going to use to make that decision is going to be heavily influenced by the facts of the case. So if you're making a run at a well-established feature of law --- say, "copyright law says you can't make copies of other people's stuff and distribute it without their permission" --- you want to go into that case with the absolute best facts you can possibly marshal. IA came to this case with a really bad fact pattern!

I think a lot of different people could have told them they were going to lose, and especially that they were going to lose the appeal after they lost in the lower court. But they have no accountability mechanism. It didn't cost them anything to push the case as far as they could go, despite that doing so meant that the predictable result of their case probably dooms CDL under any fact pattern anywhere in the country.

People are understandably grumpy.

From the Copyright Act:

> "Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed.

So the version of the work traveling through the air is not in itself a phonorecord protected by copyright law: fair use is not even relevant for it. (However, copyright law does protect the phonorecord in the CD from being performed publicly.)

Clearly no, and we have two opinions now from federal courts explaining why. Maybe they can appeal it to the Supreme Court and get a 3rd, taking this question off the table categorically for the next 30 years.

It's not as restrictive as you're reading it. This bit is fairly permissive:

> only as part of the lease, sale, or other transfer of all rights in the program.

It's basically saying that users are allowed to make personal copies of a digital work, but they aren't allowed to sell or loan out those copies separately from the original. For example, if you bought a game on floppy disk, you can make backup copies of the disk it came on, but you can't make "backups" for your friends to play while you keep the original, or sell your copy of the game while keeping a backup for yourself. This seems entirely reasonable to me.

Sorry I wasn't trying to argue that they're raising money specifically to line their own pockets. Maybe they want to branch out to other nonprofit internet causes, maybe they've become convinced they need a rainy day fund for the long term of their operation, maybe they're using this case as a lead-in to fubd lobbying and activism, etc. I'm just confident that, whatever the reason is, they know what they're doing to get there. They're not ignorant about the law of the one subject they've been dealing with for decades, and my argument is it's scummy to take your donating users hostage like a for-profit might regardless of why you do it, because nonprofits are given numerous legs up on the risk of competition specifically on the argument they wouldn't behave like this. You could probably even dig up some statements from IA over the years to this effect; they've certainly associated officially with peiple who said so all the time. If the field were even they would at least be taxed on whatever they're collecting money for like for-profits are, and that money could pay for the court process of batting down their inevitable bunk. Instead, you and I have to fund it when we have the selfish gall to do things like work for our wages or exchange those wages for food, plus now we have to fuel the other side too if we want to save our crowdsourced abandonware repository from this hostage situation come partisan dirty war.

I get directionally what you're saying, but on the specifics of always pursuing growth, that isn't true. Ironically, one of the people that I've heard argue most forcefully for the idea of steady-state non-profit is actually Brewster Kahle, though it wasn't about IA. I remember him arguing that a particular goal may require a institution of a certain size, and if you started bringing in more cash, it might make more sense to spin off another, independent organization.

(Now I must say, I've also seen that strategy pursued in practice among businesses, and let me tell you, it's a lot easier in the non-profit world!)

That is hopelessly cynical. Sometimes people actually are dedicated to the goals of the organization and not just personal gain.

It also doesn't make any sense in this context. Soliciting donations only to spend them on lawyers doesn't yield any net money for the organization.