Internet Archive sued by big publishers

[SteveEisenberg]

Originally Posted by Tex2002ans

Also see Techdirt's fantastic article on the topic:

Major Publishers Sue The Internet Archive's Digital Library Program In The Midst Of A Pandemic

I agree it is a good article.

Re why Macmillan and S&S didn’t join, I wonder if it’s because the evidence of financial harm is thin enough that opinions, among their internal business analysts, vary.

One thing I would be worried about if I was a publisher — what happens if OpenLibrary starts using higher quality OCR so their eBooks are no longer such a big mess (as the lawsuit acknowledges is true now).

I think the plaintiffs might be wise to settle for OpenLibrary going back to one loan per copy and signing a pledge to never increase their scan quality.

[ZodWallop]

Originally Posted by fjtorres

I said what I heard. That he wasn't particularly good and never had anything published without major fixingm
Clancy was a car salesman. Maybe he was the one got the "co-writer" to fix it. But remember it's not just the big outfits that "fix" books. Small specialty pubs do it too.

I mean, I guess. I know ghostwriters are a thing. There's V.C. Andrews like I mentioned. And for a while there was the Tom Clancy's house name of David Michaels.

But the thing is, Andrew Neiderman is the ghostwriter for V.C. Andrews and David Michaels was Ray Benson and then Grant Blackwood. Ghostwriter's names get out.

So how could it still be a secret for two of the biggest writers of the 20th century? And why would they publish some books with co-authors credited and some without?

If you have any sort of reporting that's better than 'people are saying' I'll read it. Otherwise I'll stick with Occam's Razor.

[pwalker8]

Originally Posted by SteveEisenberg

Yes, although the publishers want a jury trial - check page 52:

https://assets.documentcloud.org/doc...704/4388-1.pdf

I wonder if there’s some deep significance to wanting a jury. Is that normal for a case like this?

I was actually talking about the Google case, though in general what a jury thinks applies only to the case they hear.

My guess is that the plan is to appeal to the emotions of the jury since they don't have much of a legal case.

[murraypaul]

Originally Posted by pwalker8

My guess is that the plan is to appeal to the emotions of the jury since they don't have much of a legal case.

The publishers?
They have a slam-dunk legal case.
Whatever your thoughts about the morality of what IA are doing, it is very obviously illegal.

[DNSB]

Originally Posted by murraypaul

The publishers?
They have a slam-dunk legal case.
Whatever your thoughts about the morality of what IA are doing, it is very obviously illegal.

Legality or illegality doesn't matter. This is a civil case not a criminal case. In copyright infringement cases in the USA, there are three categories of damages,

Actual damages for which the publishers are going to have to supply the dollar amount of their losses due to the copyright infringement.

Infringer's profits where the publishers are going to have to establish the amounts of IA's profits due the the infringement and prove they exceed the amount of actual damages.

And now we have the joker.

Statutory damages which can go as low as $200 for cases where the copyright infringement has been held to be innocent to $30.000. At the discretion of the court where the judge holds the damages to willful, the damages may be increased to $150,000. OTOH, the same section states "The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies".

And that, folks, is something the courts are going to have to decide.

[murraypaul]

Originally Posted by DNSB

Legality or illegality doesn't matter. This is a civil case not a criminal case. In copyright infringement cases in the USA, there are three categories of damages

I don't think the main issue for the publishers is damages, it is getting the operation shut down.

[pwalker8]

Originally Posted by murraypaul

The publishers?
They have a slam-dunk legal case.
Whatever your thoughts about the morality of what IA are doing, it is very obviously illegal.

Actually, I was thinking the IA wanting a jury trial. I guess if the publishers want a jury trial it's because they are afraid it will end up in front of Judge Cote

[MarjaE]

Originally Posted by murraypaul

I don't think the main issue for the publishers is damages, it is getting the operation shut down.

I don't see how a civil suit would accomplish that. It would be hard to show losses, and probably involve a fight over how they count losses. There are no profits. It's an open question whether they'd face statutory damages.

[Quoth]

Originally Posted by MarjaE

I don't see how a civil suit would accomplish that.

It easily can, at least anywhere in the EU. Unless US law is broken, it's true there too. "Facilitating copyright violation" carries bigger penalties most places than actual copies.
Also there is a misconception about Civil vs Criminal law.
Criminal: Usually the maximum and sometimes minimum tariffs are set in law, the Jury or Judge can't easily undercut or exceed any jail term or fine. The victim may get nothing. The State or agents of the State decide if a prosecution is to be brought.
Civil: The victim(s) have to bring a case. The judge and/or jury decide the penalty, which need not be limited to proven damages, but potential damages. There is no minimum or maximum. If the case is judged to be technically a violation, but regarded as malicious or whatever a damages of 1c could be assigned with the supposed "victim" having to pay costs of both parties. OTH, if the transgressor is shown to be wilful and setting out to ultimately destroy the victim (I'm thinking not just copyright), then the transgressor could have to pay both parties costs and have all assets and enabling "equipment" seized.

In a case like this they don't have to prove historic losses.
See cable TV piracy. Usually there is a Criminal law, Theft of Service. In Ireland that might be a maximum of €5000 and 6 months jail. However the providers (Liberty Global, Sky etc and the rights holders supplying them such as Disney, F1, Premiership, Fox, Nat Geo etc) usually persuade the DPP NOT to bring a Criminal case. They sue. Civil law.
1) Private individual: They pay monthly rental, back dated to when they moved in or last had a contract. Usually that's settled before Court.
2) Pub or similar public venue. They pay about 20x as much per set box. They haggle in court and agree a compromise.
3) Someone selling cable set-boxes, card sharing or other systems to enable pubs or individuals to commit piracy (copyright violation). A judge, or often a jury sets the penalty. A small one man outfit is typically "fined" €100,000, pays all parties costs and has all electronics gear seized. Bigger pirate operators can have all assets seized. Unlike a criminal case, the "victims" get the fine.

So IA is in category 3. That's why the publishers want a jury trial. You'd think Satellite or Cable PAY TV theft of service is fairly victimless. Indeed, for an individual, the "fine" is pretty much what they might have paid. They get off lightly. The commercial outfit enabling the Piracy gets hit as hard as possible, because they are attacking the existence of the platform. Pay TV operators in Italy actually went out of business due to piracy. It's a story for another day as to who funded it.

So the publishers will concentrate on how that the author chooses to sell their work or mysteriously live on air (dole?) and offer it free, not IA. How IA are destroying the livelihood of living authors and dissuading people from becoming authors. Issues of the Publishers own predatory actions, or letting material go out of print, or actual damages won't come into it. And they shouldn't.
I know authors and most are absolutely appalled. "Whataboutism" by IA isn't going to curry favour with the Jury. IA nor anyone other than the author can't decide to make stuff free that isn't free, even if the damages are low.

[murraypaul]

Originally Posted by MarjaE

I don't see how a civil suit would accomplish that.

It is exactly what they are seeking.
Lawsuits aren't just about money.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs Hachette, HarperCollins, Penguin Random House, and Wiley, respectfully request judgment against Defendant Internet Archive as follows:

A. Declaring that the practices of Internet Archive in connection with “Open
Library” constitute willful copyright infringement;

B. Issuing a preliminary and permanent injunction enjoining Internet Archive, and its agents, servants, employees, attorneys, successors and assigns, and all persons, firms and corporations acting in active concert or participation with it, from directly or indirectly reproducing, distributing, publicly displaying, creating derivative works, otherwise infringing, or causing, enabling, facilitating, encouraging, or inducing the reproduction, distribution, public display, creation of derivative works, or other infringement of, any of the respective copyrights owned or exclusively controlled, in whole or in part, by Plaintiffs, whether now in existence or hereinafter created, and ordering that all unlawful copies be destroyed;
[...]

[Alanon]

I'm not sure that most digital libraries actually honour the "one copy" rule, except, until recently, Open Library? At least, none of the digital services I used seemed to. Is there some regulation that makes this a separate legal issue? Are real libraries expected to scour craigslist in search of out-of-print editions, when multiple digital copies are clearly easier to manage, cheaper to produce and maintain, and better suited for their mission and purpose? Or is IA simply not considered a "proper" library, and therefore needs to follow different rules? Would it help if they registered under a different jurisdiction? (On a side note, wasn't Open Library a separate project until comparatively recently, when they merged their accounts with IA?)

Another thing I'm not clear on - what exactly constitutes copyright-infringing distribution? In this instance, the books are either available for perusal online only or in an encrypted form, always for a limited time. The borrower can't be said to ever actually own a private copy of the book - he can't sell it, he can't give it away, he can't send it to anyone else but himself - he merely uses it for a while.

I understand the analogy with stealing TV signals, but I don't think the similarities are strong enough. TV is by nature ephemeral, always in production, and consistent views are in direct proportion with making money, and that's tied in with continuing certain programmes - you're not replaying the news ten times. (Even there an argument could be made that since advertising persists in stolen TV signals, it ultimately brings profits to the channels even in cases of piracy, due to an increase in total number of eyes on the screen). I'd say the current issue is more akin to re-transmitting 10-year-old programming for free rather than a direct theft of today's news in an attempt to make money off it?

I can also think of some examples of untouchable services - YouTube has videos of millions, if not billions of songs that are completely free to stream an infinite number of times - many of them have no ads and produce no discernible income for any party. Certainly, if you contravene YouTube's mechanics and extract the crappy mp3 file from that incredibly ugly, Comic Sans infested lyrics vid, you are doing so illegally. But are we to understand that YouTube is "distributing" user-uploaded music videos in a piratic way? If what IA is doing is so problematic, what YouTube is doing is infinitely more so? What if someone uploaded a free video of them reading someone else's book aloud? What would be the status of that?

A couple of situations vis-a-vis copyright where I can imagine a clear need for agreements to be reached between IA and the publishers are: 1. In cases when a book is still in print and producing revenue, IA's offering it even in a reduced volume, could, theoretically, prevent people from buying said book, and 2. When the author/publisher intends to publish a new edition after a hiatus, similar circumstances would apply. The problem is, people who would "preview" books in such a way already have means at their disposal - they have physical libraries, book clubs, dollar stores and the like. It's not illegal to borrow a book from a friend, read it, and return it to him, thus getting the product of someone's labour for free.

Outside these caveats, I can't see how the publishers/authors are damaged here? If a copy of a book was legally purchased by a library or private person in, say, 1990, the publishers shouldn't have expectations of royalties, profits or claim lost revenue from an edition that's been out-of-print? Whether that copy was given to thousands of people thirty, twenty, or even five years after they stopped manufacturing it, shouldn't make a difference, should it? After all, a book goes out of print when a publisher decides it's no longer worth their effort to print, market and sell it. Even if thousands of people went and bought an out-of-print edition from second-hand book-stores, it wouldn't make a lick of difference for the author or the publisher, they wouldn't even know about it.

Even if none of these nuances mattered, isn't there a case to be made for the different types of usage here? It takes resources to scan and host these books, resources that IA does not make a profit from, that all clearly serve an educational purpose and are in the public interest, globally? Given that it's managed and distributed on a temporary basis, in a non-commercial setting, I see a clear value here that the publishers aren't willing to provide. Their profit margins aren't exactly going to tank because someone in Pakistan was able to read a book from 20 years ago, particularly given that they most likely don't even cater or export to that market.

[Ghitulescu]

Besides justice, there is yet another factor to be put into balance - the power of the owner.
AFAIK, nothing happened when Microsoft has been proven it used software protected only by the equivalent of CCA for software. Again, I doubt the government would have proven the same diligence in raiding the MS offices for proofs as they do at suspects' homes at the incite of big companies (like Napster cases).

[murraypaul]

Originally Posted by Alanon

I'm not sure that most digital libraries actually honour the "one copy" rule, except, until recently, Open Library? At least, none of the digital services I used seemed to.

Actual libraries buy licenses for digital eBooks from the publishers, they do not scan their own copies.

Outside these caveats, I can't see how the publishers/authors are damaged here?

Open Library are distributing copies of some books that could be:
a) Bought in paper, earning revenue for the publisher
b) Bought digitally, earning revenue for the publisher
c) Loaded from a real library, earning revenue for the publisher.

What legitimate purpose is served by the Open Library hosting scans of Terry Pratchett Discworld novels, for example? They are easily available from other places.

[Tex2002ans]

Originally Posted by murraypaul

Actual libraries buy licenses for digital eBooks from the publishers, they do not scan their own copies.

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

Also see Techdirt article:

Libraries Have Never Needed Permission To Lend Books, And The Move To Change That Is A Big Problem

and an article by Kyle K. Courtney (Lawyer) that was heavily quoted in the above article:

Libraries Do Not Need Permission To Lend Books: Fair Use, First Sale, and the Fallacy of Licensing Culture

Side Note: I was also digging around a lot of the links, and ran across this talk given at the Boston Public Library in February 2019:

The Future of the Book and Digital Access

Broken down into these roughly equal parts:

• Boston Public Library
• Internet Archive (Brewster Kahle)
• MIT Press (Amy Brand, Director)
• Cambridge Public Library (Maria McCauley, Director of Libraries)
• Q&A

Throughout, they discussed importance of scanning/digitizing all forms of media (including books).

In Brewster Kahle's talk, plus the Q&A, lots of examples were brought up, but I thought this was the most interesting:

• Wikipedia citations
  
  • Making sure all those links are available at the click of a button, jumping you to the exact page that's cited.
    
  • ~10 million dead links have been corrected.
    
  • Archive.org covers ~30% of all books referenced at least twice (9% referenced at least once).
    

He also discussed stats about book lending/access/citations (similar to the "20th century black hole"). You see a peak around public domain works, then a huge trough throughout the entire 20th century, until you reach more modern times.

Also See: Internet Archive's latest blog posts for lots of interesting info. For example, this one was a few weeks ago:

Sizzle Then Fizzle: Buzzy Titles and Borrowing Digitized Books

A book with a very limited print-run was referenced in a court case, then mentioned in the New York Times,

[...] so there were very few copies in libraries. It was a “buzzy” title—everyone wanted a copy, including both political parties, the media, and Justice Kavanaugh’s supporters and detractors. Because of the limited supply and high demand, book sellers were offering used copies for thousands of dollars online. It was essentially impossible to locate a copy.

[...] Because there was only one physical copy of the book, only one person could checkout the digital copy and read it at a time, and with our standard 14 day circulation period, the digital book would circulate an estimated 30 times per year. Those who wanted to queue up to read the book could join a waitlist, just like at your public library. And they did. Within 24 hours of making the book available at archive.org, its waitlist had jumped to more than 400 people. In the nearly 18 months since, the waitlist topped out at more than 800 people, meaning that someone joining the list at its peak would be waiting more than 20 years for their turn to read.

But all of that changed when we launched the National Emergency Library which gave us an unexpected opportunity for an experiment. By suspending waitlists for our books, all of the users on the waitlist could check out the book without delay. [...]

It turned out most users did not want to check out the book when they were eventually offered the opportunity. Some did check out the book, but few. In the week after the launch of the NEL, 50 copies were on loan. Following our previously reported circulation patterns, 90% of those borrows go stagnant within the first hour (most much faster), meaning that users stop interacting with the book, so there were may be closer to five actual readers of the book. Today, the book is not checked out by any users. This blog post will again raise interest in the book, and so it will likely have more borrows over the next week (the number likely depends on the reach of this post) before it again returns to a lower, post-buzz circulation level.

[murraypaul]

Originally Posted by Tex2002ans

Yes they do get their own collections scanned

Most real libraries are not lending eBooks of in-copyright works created from their own scans, they are buying eBook licenses from the publishers.