Internet Archive sued by big publishers

[fjtorres]

Originally Posted by Tex2002ans

Yes they do get their own collections scanned (see Side Note).

Irrelevant.
Scanning isn't at issue.
Distribution is the violation.

Since IA apologists keep referring to it: Look to google, they scanned a zillion books but distributed none. Nothing that tbey did reduced sales.

Libraries like Hathitrust aren't scanning just any random book from Barnes and Noble: they are scanning historically significant rare books for *academic* purposes and internal use to prevent degradation of the originals.

One more time: there are four tests for fair use. (see below).
One is whether there is market damage.
A second is the *purpose*.
Haithrust and other scanning universities are doing no market damage for their books because there is no market to damage.
And their purpose is academic study and preservation.
That has been found in court to be fair use.

https://news.cornell.edu/stories/201...copyright-suit

A federal district court has dismissed a copyright infringement suit brought by the Authors Guild that would have prevented the digitizing of books by university libraries and restricted use of many of the digitized works.

The Oct. 10 ruling will allow HathiTrust, a partnership of 69 research institutions, including Cornell, to continue to use a collection of some 10 million books in digital form. Cornell and several other universities will also be able to continue a partnership with Google to scan books from their collections. Cornell also expects to revive its investigation into making digitized books available to blind and print-disabled students.

In 2007 Cornell joined five libraries whose books are scanned for the Google Books Library Project, which now offers a searchable database of some 20 million volumes contributed by libraries and publishers. Public domain works can be read in full online; users may see only snippets of copyrighted works, with links to buy the book. Cornell had been digitizing small collections of specialized materials for 15 years, accumulating perhaps 15,000 volumes up to that point, according to Peter Hirtle, senior policy adviser in Cornell University Library.

IA books are available for purchase all over, right now and their avowed purpose is to help people *avoid* buying. Their own words argue for summary judgment.

These tests come from the US courts, precedents going back decades, not random self-proclaimed blog "experts".

Try *this* random internetblov piece, before accepting any random opinion that just happens to meet your preferences:

https://www.perceptualedge.com/blog/?p=2464

People sometimes claim expertise in one field based on experience in another. This is a fallacious and deceitful claim. I have extensive experience in visual design, but I cannot claim expertise in architecture. Any building that I designed would most certainly crumble around me. I’m a skilled teacher, but this does not qualify me as a psychotherapist. That hasn’t stopped me from occasionally giving advice to friends, but without charge, which probably matches its worth. Although these fields of endeavor overlap in some ways, expertise in one does not convey expertise in another. No concert violinist would claim the transfer of that virtuosity to the saxophone, but IT professionals sometimes make claims that are every bit as audacious.

Or to paraphrase the TV ADS, there's lots of folks out there who aren't doctors but play one on the internet. Doesn't make their word mean anything.

We're discussing a copyright lawsuit: how about citing an actual US Judge with a background in copyright? Or at least the Stanford Law School library:

https://fairuse.stanford.edu/overvie.../four-factors/

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.

The four factors judges consider are:

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

The IA is distribution the entirety of copyrighted books, without altering the content, for the purpose of helping people avoid the purchase of a commercial book.

That is four failures.
No valid defense.

[Barcey]

Originally Posted by Pajamaman

But the big five publishers can price fix ebooks via cartels. That's legal.

Yes, but they did it in a very gentile nature. In their view, they didn't "perform violence against" the antitrust laws, they quietly smothered them with bags of cash. 'Nothing to see here, carry on'.

[fjtorres]

Originally Posted by Barcey

Yes, but they did it in a very gentile nature. In their view, they didn't "perform violence against" the antitrust laws, they quietly smothered them with bags of cash. 'Nothing to see here, carry on'.

And it didn't work, anyway.
The conspiracy was clumsy, ill-considered, and ultimately futile and ended costing them and Apple close to a billion.

Afterwards, with Agency Part Deux they got what they wanted, legally, and all it's cost them is half their ebook market share. Still ill-considered and futile, but legal. Bezos appreciates their efforts to kill his competition.

[pwalker8]

Originally Posted by fjtorres

And it didn't work, anyway.
The conspiracy was clumsy, ill-considered, and ultimately futile and ended costing them and Apple close to a billion.

Afterwards, with Agency Part Deux they got what they wanted, legally, and all it's cost them is half their ebook market share. Still ill-considered and futile, but legal. Bezos appreciates their efforts to kill his competition.

Yes, yes, yes, got to keep pushing the narrative. We get it, Publishers bad, Bezos good. We don't talk about Amazon anti-Trust, that doesn't fit the narrative.

[fjtorres]

IA is shutting down their unlimited operation but they're keeping the "limited" distribution of unlicensed books.

https://the-digital-reader.com/2020/...o-weeks-early/

And they're still pretending they're a real library.

Given that the IA is boasting that they will continue pirating books through The Open Library, this is really a case of “too little, too late”. They’re not stopping the piracy, just dialing it down a couple notches.

That is a wholly inadequate response, and to add insult to injury, Kahle went on to misrepresent why this occurred:

We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic. However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world.

Yeah. Riiight.
As if an outbreak nullifies all copyright.

[murraypaul]

It is a sensible response.
They were going to lose the lawsuit, as it stood.
Now they probably will, but it is no longer a slam dunk, especially if it is a jury trial.
They make be able to persuade people that "1 pBook = 1 eBook loan" is reasonable.
The publishers didn't sue until the recent changes, and part of that may have been that they were afraid they might lose.
We might see the suit dropped, or some sort of compromise reached.

[fjtorres]

Originally Posted by murraypaul

It is a sensible response.
They were going to lose the lawsuit, as it stood.
Now they probably will, but it is no longer a slam dunk, especially if it is a jury trial.
They make be able to persuade people that "1 pBook = 1 eBook loan" is reasonable.
The publishers didn't sue until the recent changes, and part of that may have been that they were afraid they might lose.
We might see the suit dropped, or some sort of compromise reached.

The billable hours to draft the lawsuit are sunk costs. Might as well let it ride, because "I stopped breaking the law" is rarely an acceptable defense. Any further legal fees can come out of the IA's hide.

Also, the violation is still "distributing unlicensed content, in whole".
The amount of content has nothing to do with innocence, only the punishment.
And owning a print copy of the content does not convey a distribution license.

If they think throttling back is going to save them they're really out of touch with reality.

[murraypaul]

Originally Posted by fjtorres

And owning a print copy of the content does not convey a distribution license.

I'm not disagreeing, but there is a non-zero chance that the ruling doesn't go the way we expect.

If they think throttling back is going to save them they're really out of touch with reality.

What might save them is the publishers thinking "But what if we lose?".
If the publishers could have got this outcome just by threatening a lawsuit, rather than actually filing one, I don't think they would be filing now.

[fjtorres]

Originally Posted by murraypaul

I'm not disagreeing, but there is a non-zero chance that the ruling doesn't go the way we expect.



What might save them is the publishers thinking "But what if we lose?".
If the publishers could have got this outcome just by threatening a lawsuit, rather than actually filing one, I don't think they would be filing now.

Sillier stuff has happened but they have gone to the mattresses on le$$ $ignificant issues.

[Geremia]

Originally Posted by fjtorres

They are [posting © books].

They always have.
Their National Emergency Library simply didn't use Controlled Digital Lending, but the books were still DRMed.

QuestionCopyright.org posted an article on "Why the Internet Archive’s National Emergency Library is a Good Idea."

[fjtorres]

Originally Posted by Geremia

They always have.
Their National Emergency Library simply didn't use Controlled Digital Lending, but the books were still DRMed.

QuestionCopyright.org posted an article on "Why the Internet Archive’s National Emergency Library is a Good Idea."

1- DRM'ed with what?
2- Who did they pay for the ebook lending licenses?

[MarjaE]

My understanding is that they have physical copies, and until the pandemic, they were loaning 1 digital copy for 1 physical copy.

I know there have been battles around format shifting-- e.g. for accessibility for blind readers. I don't know how these have turned out.

[fjtorres]

Originally Posted by MarjaE

My understanding is that they have physical copies, and until the pandemic, they were loaning 1 digital copy for 1 physical copy.

I know there have been battles around format shifting-- e.g. for accessibility for blind readers. I don't know how these have turned out.

Your understanding is correct.

But it has long been established in US courts that print books and ebooks are not the same product. The publishers themselves have to acquire the rights to each edition *separately*. Old contracts that don't explicitly name digital rights were found to not cover ebooks, only print.

With that principle in mind, owning a print edition conveys zero rights over digital editions.
(If publishers have to pay the copyright owner separately for the right to distribute digital edition, why wouldn't IA have to also pay separately? Paying for one print copy is not buying the right to distribute ebook copies.) It's obfuscation plain and simple, intended to wave off their law-breaking.

Books are no different from other forms of mecia and owning a VCR tape conveys no rights to distribute DVDs, BluRays, or digital copies. Look at Disk sales that do offer downloads and note they sell versions with and witbout and without is always cheaper. Legal digital isn't free.

They aren't the same product and scanning and ocr'ing a print book is not the same thing as converting a Wordstar file to Word or html. The latter is true format shifting, the former isn't. Rather it's the digital equivalent of making photocopies of a book and distributing those willy nilly, which would never pass legal muster. Neither will the IA lending scheme.

[Quoth]

PDFs from scans, even if OCR added, ARE simply digital photocopies. No real library scans or photocopies any physical book still in copyright to loan it. If they do eBooks at all, they licence an appropriate quantity. It need not be one. Fair use involves only photocopying or scanning a portion. I expect the Google case to be reopened once it's obvious to rights holders and publishers that Google over time is sharing copies of the entirety of everything they scan and monetising it via search without a cent in royalties.

Most serious photocopiers are now actually computer scanners and laser printers in a box with a computer. Purely analogue photocopiers, even the dry toner kind, are candidates for museums.

You can't buy a DVD and offer digital loans without a per loan royalty and/or a contract with the rights holder. Same with ebooks.
It's not remotely the same as buying a CD, DVD, ebook and changing the format for your own gadget, even in countries where that is technically illegal due to DRM circumvention, no individual would be sued for personal use. But websites or operators "sharing" digital copies by any means and any conversion have always been successfully prosecuted or sued. It's only the level of damages that's ever in contention.

[MarjaE]

Ah, so they are liable because the law is even more of an ass...

I haven't used their lending services, but similar services would help a lot of us who don't have local libraries, or can't use them due to disabilities.

P.S. Yes, I contacted the county library last January, I haven't heard back. I contacted the county disability services today.