Hachette vs. Internet Archive: We're Still Fighting for Fair Use

48 pointsposted 17 hours ago
by MrVandemar
(libraryfutures.net)

59 Comments

iwishiknewlisp

15 hours ago

To some degree I think that with the increase in use of digital media there needs to better rights and methods for sharing like one can with physical media.

However, it's not fair use to copy material and redistribute it. Furthermore, the creator should be able to determine the format of the release of their work. If someone wants to alter their work, they must do so in a transformative manner and not pass it off as the creator's work.

Someone who makes a book with formatting specific to say a PDF, could be unfairly reviewed or judged by readers who borrowed distributed copies that are formatted to epub, for example.

travoc

14 hours ago

I read your comment in dark mode. Is that ok with you? I forgot to ask.

tptacek

13 hours ago

This is a real problem with discussions about copyright, because this is a great example of something that is a mic drop on a message board that will get you tossed out on your ear in a court of law.

Taek

12 hours ago

Only because of the presentation. I think the same argument could be made in a more professional way.

As a society we have to choose where to draw the line between the rights of the author and the rights of the consumer. Every right that we extend to authors is a burden on society, and we have to figure out the point at which returns for the collective are diminishing

exe34

14 hours ago

we need to stop looking at accessibility as something we add occasionally to a product when things are going well and we want to feel nice about ourselves.

the best way to do it is through things like this, where the content is available to you and you can choose how to consume it - dark mode, but maybe also reader mode, large fonts, wide screens, text search, etc - these should be considered the basic necessities, and then anything you want to do to make it look nice and feel creative is on top, as an option - even the default option if you really care about marketing over content.

Dylan16807

13 hours ago

> However, it's not fair use to copy material and redistribute it.

You mean permanent copies, right? Then the IA doesn't disagree. They just want to loan out one digital copy while the original is locked up, in an attempt to emulate not making copies as closely as possible in a digital world.

> Furthermore, the creator should be able to determine the format of the release of their work. If someone wants to alter their work, they must do so in a transformative manner and not pass it off as the creator's work.

> Someone who makes a book with formatting specific to say a PDF, could be unfairly reviewed or judged by readers who borrowed distributed copies that are formatted to epub, for example.

I can get behind forced marking in some circumstances, but shifting between digital and physical should fall under first sale doctrine and the author should not have control over it.

tptacek

13 hours ago

It does not help the situation here that IA went to war with publishers in the US courts with a system that did not in fact enforce that invariant, but rather declared unilaterally that the pandemic justified them taking a single copy of a book and lending it an arbitrary number of times --- something cited in the opinion of the court, IIRC!

AStonesThrow

18 minutes ago

They can't lend anything to me, because I am still wearing my mask!

Dylan16807

13 hours ago

It doesn't help. On the other hand the court doesn't seem to think the arbitrary lending makes a difference to copyright, does it? I was under the impression it's only mentioned as a knock against IA.

tptacek

13 hours ago

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.

AnthonyMouse

11 hours ago

> There's a saying among lawyers, "bad facts make bad law".

One of the problems here is that there is a flaw in the legal system where if the law is unclear, there is nowhere you can go to request a definitive clarification. If you want to find out if you're allowed to do something, you first have to do it and only then find out if somebody takes you to court over it so the court can rule on whether you were allowed to.

Worse, they did CDL for a long time before COVID and nobody took them to court. To get a definitive answer you not only have to do it, somebody has to sue you. And they're not going to do that if they expect you to win, because that would cost them money to pay for lawyers only to set a precedent they don't like.

So in order to create the possibility of a precedent saying it's allowed, you have to push the envelope enough that your opponents think there's a good enough chance that you'll lose to take the risk of bringing you to court. That's preposterous and unreasonable, but it's how the system works.

dragonwriter

12 hours ago

> Courts are going to render a verdict, usually, based on legal principles and with broad applicability.

Appellate courts might do that (though even the vast majority of appellate decisions are narrow and, even if technically precedential, lack broad applicability.) Trial courts, whose rulings aren't even binding precendent on the same court, much less any others, do not. Even applellate courts in cases where an issue is raised which seems to offer the possibility of a ruling with broad impact often don't.

> 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"

I would say that the precise bounds of fair use (which absolutely does allow, under current law, in some cases, making copies of other people's stuff and distributing it without permission) is exactly the opposite of a well-established feature of copyright law; fair use is an area where the statutory rules are fuzzy and the application of them to anything that isn't almost an identical fact pattern to one that there is a prior case providing binding precedent on is...murky, at best.

Dylan16807

13 hours ago

Didn't they rope in enough libraries so they didn't actually overshoot on almost any book? The way they did that after the fact was cheeky but I don't think it's that bad of a fact pattern. Instead I think it was similarly doomed either way, and the real issue is that a lawsuit was triggered at all.

mminer237

13 hours ago

The law has no concept of a "temporary copy". How is the Internet Archive supposed to enforce that? Government DRM?

Dylan16807

13 hours ago

The law was written a long time ago and it needs some clarifications and updates.

Lots of temporary copies are already considered fair use. Every time you play a disc you make temporary copies, and nobody complains.

And if playing a CD can just use copyright and no "government DRM", then so can lending an ebook.

LegionMammal978

13 hours ago

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.)

Dylan16807

13 hours ago

I'm not talking about the sounds, I'm talking about the perfect digital copies in the RAM chips of the player.

And RAM is considered "fixed" by every interpretation I've ever seen.

LegionMammal978

12 hours ago

Do CD players tend to keep any more than a few seconds' worth in memory? If not, you could easily argue that any given segment is too short to contain copyrightable expression. But fair use is a very particular concept about the ultimate purpose of producing a copy, which I don't think would apply to any scenario along these lines.

Dylan16807

12 hours ago

Some CD players buffer a full minute or longer, and also samples have been considered copyright infringement even when they're a second long.

LegionMammal978

12 hours ago

Clearly, it would be infringement if you buffered a minute of audio from CD into a player, then sold that player to someone else (without unpowering it) while keeping the CD for yourself. So I guess you might be right, and it could be fair use that allows it in the typical case (assuming it is allowed).

tptacek

13 hours ago

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.

Dylan16807

13 hours ago

> Clearly no

Please don't do this. I'm not talking about what the law is, I'm talking about what it can be. You are not responding to my argument.

user

2 hours ago

[deleted]

hollerith

2 hours ago

Your argument is naive and a little absurd.

Phiwise_

7 hours ago

Your comment was in response to an argument about what the law is. This entire thread is about a court case, which deal with what the law is. You're in no position to accuse others of not responding on-topic.

tptacek

13 hours ago

The law we're talking about does not in fact date back to player pianos or s's that look like f's; it's been continuously refined all the way into the 21st century. So I think it matters a great deal what it actually says now.

Dylan16807

13 hours ago

> The law we're talking about does not in fact date back to player pianos or s's that look like f's; it's been continuously refined all the way into the 21st century.

It has been partially updated but not enough.

> So I think it matters a great deal what it actually says now.

I never implied otherwise.

A suggestion for change is by definition based on the current version.

dragonwriter

13 hours ago

> However, it's not fair use to copy material and redistribute it.

On the contrary, fair use often involves copying materials and redistributing them.

_aavaa_

14 hours ago

Someone who borrows my poorly stored record collection may get the wrong impression about an artist. Or the book they borrow may be missing packages, making the story not make sense.

All of that is irrelevant. I own those copies and am free to share them as a please. That the copy I own is digital versus physical should not change that.

ranger_danger

15 hours ago

> Similar to a photocopy or resale of a book, the publisher and author were paid when their work was purchased or acquired. What do the big publishers want to come after next – used bookstores?

Do they not understand what copyright means? They are not allowed to make a _copy_ of a book without permission. Traditional libraries and bookstores do not do that... it is a very important distinction that they either seem completely oblivious to, or are intentionally playing dumb. Or they're somehow trying to get the actual definition of a "copy" changed.

Don't get me wrong, I'm all for IA and don't have anything against them... but in this case the court upholds that digital copies are still copies, and thus this is still copyright infringement.

dannyobrien

13 hours ago

This is why copyright strains to match its intention in a digital environment. It's all copies, out here: the number of transformations, duplications and mutations of this sentence to make it from my keyboard to your screen is well-nigh uncountable. So we end up with intuition-bending exceptions and judgements, some attempting to protect the spirit of the law, some enforcing some broad conception of intellectual property or duplication.

You can think about copyright that way, but as well as making the equivalent of lending a book online immoral and illegal, it also throws up all kinds of other strangeness. Why do we exempt caching? Should we pay extra for our backups? Should Zoom be paying for the posters on my wall, or my videoconferencee colleagues? And how many times?

(Those may be a little throwaway example, but I wrote a little bit more about the practical economic connection between copying and copyright back in 2008, here: https://www.oblomovka.com/wp/2008/08/07/copyright-fraud-and-... )

tptacek

13 hours ago

Do you want to make backups unlawful? Or to require Zoom to police licensing for poster on walls? Because the strat IA is using here seems like a great way to get that to happen. Doing literally nothing --- or at least stopping when they lost in the district court and not appealing --- would have been strictly better for the rights of Internet users than what they actually did, which more or less torpedoed CDL everywhere in the country. Bad facts make bad law! They teach this in law school!

dannyobrien

11 hours ago

That's a very separate matter -- I was mostly here talking here about the philosophical question of "it's copyright, so if there's a copy made, we can use that as a guide to whether this is legal or not." There's no risk to what you're describing, mostly because there are -- as others have pointed out -- clear statutory exemptions for these situations.

I do disagree with your assessment of the legal strategy, but wouldn't want to get into that here. IANAL (and therefore learned NOTHING in law school), but I worked at EFF when IA was a client, and I do know enough to not want to accidentally breach professional ethics and/or privilege regarding a client.

I feel that this is actually a challenge in discussions like this -- there's usually a whole bunch of stuff going on in the background (pro and con) that determines these strategies, but everyone involved who knows that background that can't really talk about it. But you know the same gang of lawyers as I do, so you can probably get their assessment more privately.

kmeisthax

12 hours ago

CDL was already torpedoed before IA started doing it; there's a very similar scheme for digital resale called ReDigi which was sued to oblivion. In fact, it's why the publishers sued in the Second Circuit.

Zoom doesn't have to care about posters on walls for several reasons[0] and computer backups are already authorized by law. There isn't really any potential for any worse precedent than what already existed before IA took a crack at it. The converse to "bad facts make bad law" is that courts are really hesitant to establish precedent that is broader than it needs to be[1]. And the precedent here is very much limited to the practice of loaning out e-books without a license, which was already pretty likely to be a "no" from the courts.

The only real risk is to IA themselves, but they apparently are protected by other parts of the law that limit damages on libraries. So they just wasted the court's time.

[0] DMCA 1201, and more importantly, the fact that such a use would be de minimus

[1] Except for the current political hackjobs in SCOTUS who need a good court-packing

ranger_danger

13 hours ago

I don't see how. The lawsuit was brought by specific book companies whose copyrights were infringed, the outcome of this case does not determine what the definition of a copy or "backup" is outside the context of borrowing books. And in the zoom scenario, it does not shift the legal burden for copyright policing to anyone else (it's always the rights holder)...

greyface-

15 hours ago

They're trying to engage in impact litigation to enshrine the "DRM ebook ~= physical book" equivalency into case law. Committing fully to that equivalency looks a lot like playing dumb, particularly to an observer that thinks it's a false equivalency.

Personally, I want less DRM in the world, not more.

ranger_danger

15 hours ago

I don't think this case is actually related to DRM... they are making digital photocopies of existing physical books and then lending those out, regardless of whether any DRM is applied by IA themselves.

If you're talking about DRM ebooks purchased legally under license and then copying those, I think that's a separate issue that would have to be addressed later in another lawsuit.

idle_zealot

15 hours ago

You're going to have to be more rigorous when defining "copy" in the digital age. The process of moving or reading any digital media necessitates copying in a way that physical media does not. Rights holders deal with this by employing DRM (taking control of your computer to make sure you're not making copies the wrong way). So what? Because the format people prefer to consume media on has changed we suddenly lose the right to resell or lend media we purchase? We decided that was fair before, why should development of new technology reduce the scope of consumer rights?

ranger_danger

14 hours ago

I think the definition being used in this court case is any method that allows someone to see and read an equivalent (or substantially similar) representation of the original book in digital form.

Dalewyn

15 hours ago

For your perusal and reference, a rigorous legal definition of copying as it applies to the digital age: https://www.law.cornell.edu/uscode/text/17/117

idle_zealot

15 hours ago

> Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

I don't speak lawyer, but if I'm interpreting this right then this is the part where they say "actually yeah you can't sell or lend your copy to someone else unless explicitly authorized by the rights holder" i.e. we magically lost consumer rights by virtue of media being digital.

duskwuff

13 hours ago

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.

idle_zealot

10 hours ago

It's reasonable until you consider digital media that you didn't buy on physical media. Without that physical copy you get no resale rights.

smogcutter

14 hours ago

> Similar to a photocopy or resale of a book

I mean, right there is the attempted rhetorical trick that gives the game away. A photocopy is completely unlike resale of a used book, and is only considered “fair use” under specific, practical circumstances.

It’s hard to seriously argue that you could lawfully photocopy books whole, then make a lending library out of the copies, or that such a thing has any similarity to reselling used books.

AnthonyMouse

11 hours ago

> It’s hard to seriously argue that you could lawfully photocopy books whole, then make a lending library out of the copies, or that such a thing has any similarity to reselling used books.

Suppose you have a rare book, so to keep the book from being damaged while allowing people to read it, you make one photocopy and then store the book in a vault and allow patrons to read the photocopy. That seems entirely reasonable, doesn't it?

tedunangst

13 hours ago

They understand perfectly. They're hoping you don't understand.

Dalewyn

15 hours ago

It is impossible to make the Internet Archive understand copyright when their entire business model relies on not understanding it.

Phiwise_

14 hours ago

Alternatively, could their business model be understanding it and naking the wrong choice anyway? They've been e-begging of this lengthy ordeal something fierce the whole time, and now that they've lost seem to have straightaway launched into setting the whole thing up again. Putting their archive materials in perpetual danger seems to generate perpetual sympathy after making themselves the far and away leader in their sector. Reminds of what a lot of other sites have been doing.

ranger_danger

14 hours ago

Interesting perspective. I suppose it's possible they could be doing this on purpose just to get more attention/money... but I don't know if they're really that smart.

If that were their real intentions, then I think people will call this no different than a typical for-profit tech corporation trying to artificially inflate their worth.

dannyobrien

13 hours ago

They're a non-profit. They don't have a business model.

tedunangst

13 hours ago

This is hopelessly naive. Nonprofits exist to collect more donations next year than last year.

dannyobrien

11 hours ago

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!)

AnthonyMouse

11 hours ago

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.

kmeisthax

12 hours ago

> Controlled Digital Lending replicates the print lending process digitally in a way that respects copyright by maintaining this ratio.

Maintaining an owned-to-loaned ratio does not respect copyright.

The core concept of copyright is very simple: only you have the right to make copies. It doesn't matter if you destroy a copy beforehand, making the new copy is still illegal. Copyright is about permission, not equivalence, and you can't resell or loan out permission.

Or at least that's what the Second Circuit said when ReDigi was trying to sell used MP3s.

The thing is, the true core concept of copyright law is "whatever enables America's cultural empire to be cutthroat ruthless assholes that can devour other countries' competing cultural empires[0]". Free speech backed[1] by government-granted monopolies on that speech is the path it took to build such an empire, which is why copyright law became what it is today. The US government, in a sense, is perfectly willing to see its own library system grow increasingly irrelevant to curry favor with its domestic cultural industry.

The fact that said cultural industry is perfectly willing to censor itself to get market access in China probably means we've given them way too much free reign. China does not respect copyright. It doesn't respect freedom of speech, human rights, multiculturalism, feminism[2], gay rights[3], antiracism, or anything else the American people value, or even what the cultural industries themselves pretend to value. Hell, it doesn't even respect socialism[4].

Anyway, we should consider compulsory licensing. It's closer to respecting copyright than Controlled Digital Lending's lip service. Just have the government set a price to be paid by libraries for loaning out e-books, and let them manage their own services and e-book files.

[0] This is why, for example, Japanese media companies tend to be more litigious towards US fans than Japanese ones. Any author or publisher outside the US is at constant risk of cultural gentrification, and has fought tooth and nail just to gain a beachhead into US culture.

[1] To be clear I am NOT one of those "copyright backstops 1A" people, but the judicial system is full of judges who think it does

[2] https://en.wikipedia.org/wiki/Feminism_in_China#Arrest_of_Fe...

[3] https://en.wikipedia.org/wiki/LGBTQ_rights_in_China#Censorsh...

[4] If labor unions are illegal, you're not socialist.

rahimnathwani

11 hours ago

  Just have the government set a price
Government price controls for books?

ijk

8 hours ago

We already do this for songs; anyone can pay the mechanical rate and record their own cover of a song.

It is an imperfect comparison, since a cover is its own recording, and ongoing royalties are involved, but the point is that there are some precedents for setting a price.