#IA lawsuit

[themthouse]

The Internet Archive, Misinformation & the Problem of Digital Lending

I am in the embarrassing situation of having reblogged a post with misinformation. Specifically, the "Save the Internet Archive" post featuring the below image and its associated link to a website called "Battle for Libraries".

The post claims that the recent lawsuit the IA faced threatened all IA projects, including the Wayback Machine, which is not true. The link to a petition to "show support for the Internet Archive, libraries’ digital rights, and an open internet with uncensored access to knowledge" only has one citation, which is the internet archive's own blog.

After looking for more context, I found that even articles published from sources I trusted didn't seem to adequately cover the complexity of what is going on. Here's what I think someone who loves libraries but is hazy about copyright law and the digital lending world should know to understand what happened and why it matters. I am from the U.S., so the information below is specifically referring to laws protecting American public libraries. I am not a librarian, author or copyright lawyer. This is a guide to make it easier to follow the arguments of people more directly invested in this lawsuit, and the potential additional lawsuits to come.

Table of Contents:

First-Sale Doctrine & the Economics of E-books

Controlled Digital Lending (CDL)

The “National Emergency Library” & Hachette v. Internet Archive

Authors, Publishers & You

-- Authors: Ideology v. Practicality

-- Publishers: What Authors Are Paid

-- You: The Ethics of Piracy

First-Sale Doctrine & the Economics of E-Books

Libraries are digitizing. This is undisputed. As of 2019, 98% of public libraries provided Wi-Fi, 90% provided basic digital literacy programs, and most importantly for this conversation, 94% provided access to e-books and other digital materials. The problem is that for decades, the American public library system has operated on a bit of common law exhaustion applied to copyright known as first-sale doctrine, which states:

"An individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner."

With digital media, however, because there isn't a physical sale happening, first sale doctrine doesn't apply. This wasn't a huge problem back in the early 2010s when most libraries were starting to go digital because the price of a perpetual e-book license was only $14 -- about the price of single physical book. Starting in 2018, however, publishers started limiting how long a single e-book license would last. From Pew Charitable Trusts:

"Today, it is common for e-book licenses from major publishers to expire after two years or 26 borrows, and to cost between $60 and $80 per license, according to Michele Kimpton, the global senior director of the nonprofit library group LYRASIS... While consumers paid $12.99 for a digital version, the same book cost libraries roughly $52 for two years, and almost $520 for 20 years."

Publishers argue that because it's so easy to borrow a digital copy of a book from the library, offering libraries e-book licenses at the same price as individual consumers undermines an author's right to license and profit from the exclusive rights to their works. And they're not entirely wrong about e-book lending affecting e-book sales -- since 2014, e-book sales have decreased while digital library lending has only gone up. The problem, they say, is that e-book lending is simply too easy. Whereas before, e-book sales were competing with the less-convenient option of going to the library and checking out a physical copy, there is essentially no difference for the reader between buying or lending an e-book outside of its cost.

Which brings us to the librarians, authors and lawmakers of today, trying to find any solution they can to make digital media accessible, affordable and still profitable enough to make a livable income for the writers who create the books we read.

Further Reading:

1854. Copyright Infringement -- First Sale Doctrine

The surprising economics of digital lending

Librarians and Lawmakers Push for Greater Access to E-Books

Publishing and Library E-Lending: An Analysis of the Decade Before Covid-19

Controlled Digital Lending (CDL)

Controlled digital lending is a legal theory at the heart of the Internet Archive lawsuit that has been proposed as one solution to the economic issue with digital media lending. This quick fix is especially appealing to nonprofits like the IA that are not government, tax-funded programs. Where many other solutions, like a legally enforced max price on e-book licensure for public libraries, would not apply to the IA, CDL would essentially be manipulating copyright law itself as a way to avoid e-book licensure altogether and would apply to the IA as well as public libraries.

Essentially, proponents of CDL argue that through a combination of first-sale and fair use doctrine, it can be legal for libraries to digitize the physical copies of books they have legally paid for and loan those digital copies to one person at a time as if they were loaning the original physical copy.

It is worth noting that the first-sale doctrine protecting physical media lending at public libraries does not cover reproductions:

“The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.”

This is where fair use comes in, which allows some flexibility in copyright law for nonprofit educational and noncommercial uses. Because the IA and other online collections are nonprofit organizations, proponents of CDL argue that they are covered by fair use so long as their use of CDL follows very specific rules, such as:

A library must own a legal copy of the physical book, by purchase or gift.

The library must maintain an “owned to loaned” ratio, simultaneously lending no more copies than it legally owns.

The library must use technical measures to ensure that the digital file cannot be copied or redistributed.

While this model first earned its name in 2018, it has been practiced by a number of digital collections like The Internet Archive’s Open Library since as early as 2010. It is important to know that controlled digital lending has never been proven officially legal in court. It is a theoretical legal practice that has passed by mostly unchallenged until the Internet Archive lawsuit. This is partially due to the fact that before releasing their official CDL statement in 2018, the IA had been honoring Digital Millennium Copyright Act (DMCA) takedown requests of books in CDL circulation, which authors claim they are not always responding to or honoring anymore. The legality of CDL essentially depends on a judge's interpretation of current copyright law and whether they see the practice as an infringement, which would set a precedent for similar cases moving forward.

There are, however, U.S. court decisions that have rejected similar cases, like Capitol Records v. ReDigi, which argues that digital files (in this case, music files) cannot be resold without copyright holder’s permission on the grounds that digital files do not deteriorate in the same way that physical media does, implying that first sale doctrine doesn’t apply to digital media.

In 2019, the Authors Guild, a group of American authors who advocate for the rights of writers to earn a living wage and practice free speech, pointed out this court case in an article condemning CDL practices. They also argued that not only does CDL undermine e-book licensure (and therefore author profits off e-book sales), but it also would effectively shut down the e-book market for older books (the market for copyrighted books that were published before e-books became popular and are only being digitized and sold now). The National Writers Union has also released an “Appeal from the victims of Controlled Digital Lending (CDL),” that cites many of the same complaints.

Further Reading:

U.S. Copyright Office Fair Use Index

Position Statement on Controlled Digital Lending by Libraries

FAQ on Controlled Digital Lending [Released by NYU Law’s Engelberg Center on Innovation Law & Policy]

Controlled Digital Lending Is Neither Controlled nor Legal

Appeal from the victims of Controlled Digital Lending (CDL)

FAQ on Controlled Digital Lending [Released by the National Writers Union]

 The "National Emergency Library" & Hachette v. Internet Archive

While the Internet Archive is known as the creator and host of the Wayback Machine and many other internet and digital media preservation projects, the IA collection in question in Hachette v. Internet Archive is their Open Library. The Open Library has been digitizing books since as early as 2005, and in early 2011, began to include and distribute copyrighted books through Controlled Digital Lending (CDL). In total, the IA includes 3.6 million copyrighted books and continues to scan over 4,000 books a day.

During the early days of the pandemic, from March 24, 2020, to June 16, 2020, specifically, the Internet Archive offered their National Emergency Library, which did away with the waitlist limitations on their pre-existing Open Library. Instead of following the strict rules laid out in the Position Statement on Controlled Digital Lending, which mandates an equal “owned to loaned” ratio, the IA allowed multiple readers to access the same digitized book at once. This, they said, was a direct emergency response to the worldwide pandemic that cut off people’s access to physical libraries.

In response, on June 1, 2020, Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House filed a lawsuit against the IA over copyright infringement. Out of their collective 33,000 copyrighted titles available on Open Library, the publishers’ lawsuit focused on 127 books specifically (known in the legal documentation as the “Works in Suit”). After two years of argument, on March 24, 2023, Judge John George Koeltl ruled in favor of the publishers.

The IA’s fair use defense was found to be insufficient as the scanning and distribution of books was not found to be transformative in any way, as opposed to other copyright lawsuits that ruled in favor of digitizing books for “utility-expanding” purposes, such as Authors Guild, Inc. v. HathiTrust. Furthermore, it was found that even prior to the National Emergency Library, the Open Library frequently failed to maintain the “owned to loaned” ratio by not sufficiently monitoring the circulation of books it borrows from partner libraries. Finally, despite being a nonprofit organization overall, the IA was found to profit off of the distribution of the copyrighted books, specifically through a Better World Books link that shares part of every sale made through that specific link with the IA.

It worth noting that this ruling specifies that “even full enforcement of a one-to-one owned-to-loaned ratio, however, would not excuse IA’s reproduction of the Works in Suit.” This may set precedent for future copyright cases that attempt to claim copyright exemption through the practice of controlled digital lending. It is unclear whether this ruling is limited to the National Emergency Library specifically, or if it will affect the Open Library and other collections that practice CDL moving forward.

Edit: I recommend seeing what @carriesthewind has to say about the most recent updates in the Internet Archive cases for a lawyers perspective of how these cases will effective the future of digital lending law in the U.S.

Further Reading:

Full History of Hachette Book Group, Inc. v. Internet Archive [Released by the Free Law Project]

Hachette v. Internet Archive ruling

Internet Archive Loses Lawsuit Over E-Book Copyright Infringement

The Fight Continues [Released by The Internet Archive]

Authors Guild Celebrates Resounding Win in Internet Archive Infringement Lawsuit [Released by The Authors Guild]

Relevant Court Cases:

Authors Guild, Inc. v. Google, Inc.

Authors Guild, Inc. v. HathiTrust

Capitol Records v. ReDigi

 Authors, Publishers & You

This is where I’m going to be a little more subjective, because each person’s interpretation of events as I have seen has depended largely on their characterization and experience with the parties involved. Regardless of my own ideology regarding accessibility of information, the court ruling seems to be completely in line with current copyright law and precedent. Ironically, it seems that if the Internet Archive had not abandoned the strict rules regarding controlled digital lending for the National Emergency Library, and if they had been more diligent with upholding those rules with partner library loans prior to the NEL, they may have had a better case for controlled digital lending in the future. As is, I agree with other commentators that say any appeal the IA makes after this point is more likely to damage future digital lending practices than it is to save the IA’s current collection of copyrighted works in the Open Library. Most importantly, it seems disingenuous, and even dangerously inaccurate, to say that this ruling hurts authors, as the IA claimed in their response.

The IA argues that because of the current digital lending and sales landscape, the only way authors can make their books accessible digitally is through unfair licensing models, and that online collections like the IA’s Open Library offer authors freedom to have their books read. But this argument doesn’t acknowledge that many authors haven’t consented to having their works shared in this way, and some have even asked directly for their work to be removed, without that request being honored.

The problem is that both sides of this argument about the IA lawsuit claim to speak for authors as a group when the truth isn’t that simple.

Authors: Ideology v. Practicality

Those approaching the case from an ideological point of view, including many of the authors who signed Fight for the Future’s Open Letter Defending Libraries’ Rights in a Digital Age, tend to either have a history of sharing their works freely prior to the lawsuit (ex: Hanif Abdurraqib, who had published a free audio version of his book Go Ahead in The Rain on Spotify before Spotify began charging for audiobooks separately from their music subscriptions) or have alternative incomes related to their writing that don’t stem directly from book sales (ex: Neil Gaiman, who famously works with multiple mediums and adaptations of his writing).

In these cases, the IA lawsuit is framed as an ideological battle over the IA’s intention when releasing the National Emergency Library.

Many other authors, including a large number of smaller names and writers early in their careers, take a much more practical approach to the lawsuit, focused on defending their ability to monetarily profit off their works. This is by no means a reflection of their own ideology surrounding who has the right to information and whether libraries are worth protecting. Instead, it is a response to the fact that these authors love writing, and they simply would not be able to afford to continue writing in a world where they do not have the power to stop digital collections from distributing their copyrighted work without their consent. These include the authors, illustrators and book makes working with the Author’s Guild to submit their amicus brief in  Hachette v. Internet Archive.

These authors claim that controlled digital lending practices cause significant harm to their incomes in the following ways:

CDL undermines e-book licensing and sales markets, as most consumers would choose a free e-book over paying for their own copy.

CDL devalues copyright, meaning authors have less bargaining power in future contract negotiations.

CDL undermines authors ability to republish, whether as a reprint or e-book, out of print books once their publisher has ceased production. This includes self-publishing after the rights to their work have been returned to them.

CDL removes the income from public lending rights (PLR) that authors receive from libraries outside of the U.S. which operate on different lending and copyright standards.

The amicus brief provides first-person anecdotes from authors, including Bruce Coville of The Unicorn Chronicles, about how the rights to backlisted books, or books without an immediately obvious market, make up a huge portion of their annual salary. Jacqueline Diamond cites reissues of out-of-print novels as what kept her afloat during her breast cancer treatment.

It is worth noting that according to the Author’s Guild, some authors who originally signed Fight for the Future’s open letter defending the Internet Archive have even retracted their support after learning more about the specific lawsuit, including Daniel Handler, who writes under the pseudonym Lemony Snicket. The confusion stems from the use of the term “library” by both the Internet Archive and Fight for the Future. While authors overwhelmingly support public libraries, online collections like the Internet Archive don’t always fit the same role or abide by the same regulations as tax-funded public libraries. Sandra Cisneros, author of The House on Mango Street, has written the following:

“To this day, I am angry that Internet Archive tells the world that it is a library and that, by bootlegging my books, it is simply doing what libraries have always done. Real libraries do not do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.”

Further Reading:

Amicus Brief [Submitted by the Author’s Guild]

Fight for the Future’s Open Letter Defending Libraries’ Rights in a Digital Age

Joint Statement in Response to Fight for the Future’s Letter Falsely Claiming that the Lawsuit Against Internet Archive’s Open Library Harms Public Libraries [Published by the Author’s Guild]

Copyright: American Publishers File for Summary Judgment Against the Internet Archive

 Publishers: What Authors Are Paid

Some of the commentators I’ve seen are disgruntled specifically with the publishers suing the Internet Archive, and I will say that many of these complaints are valid. The four publishing companies behind the lawsuits (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House) are not known for the stellar treatment of their authors and employees. With the HarperCollins Publishers strike ending only a month before the IA lawsuit ruling, many readers are poised to support any entity at odds with one or more of the “Big Five” publishers. In this particular case, however, the power wielded by these publishing companies was used in defense of author’s rights to their works, for which The Authors Guild and other similar creator groups have expressed gratitude.

When it comes to finding solutions to the digital lending problem in general, it is important to understand what and how authors are paid for digital copies of their work. Jane Friedman has created the graphic below displaying the industry standards for the Big Five publishers. You can read more about agency and wholesome models here.

As you can see, authors and publishers alike benefit from e-book library licensure when compared to individual e-book sales, especially when you consider the time limits on library licensures. But advocates of this licensure model argue that the high prices for e-book licensure are designed to make up for the lost sales in e-books. While library goers buy more books than book buyers who don’t visit the library, the copies they buy typically vary by format. For example, a reader may borrow an audiobook from the library, decide they like it, and purchase a physical copy for their collection. While readers may buy a physical copy of a book after reading a physical library copy, they are unlikely to buy a digital copy after readying a digital library copy, making e-book lending a replacement for e-book buying in ways that physical lending doesn’t fully replace physical book purchases.

What ISN’T accounted for in this graphic is self-publication and what is known as a right of reversion. Depending on the wording of their contract, an author can request their publication rights be returned to them if the work in question is out of print and no longer being published. The publisher can then either return the work to “in print” status or return the rights to the author, who can then self-publish the work. In these cases, the 5-15% profit they would have made off their traditionally published book becomes a 35-70% profit as a self-published book. This is why authors are particularly frustrated with the IA’s argument that it is perfectly legal and ethical to release digital copies of books that are no longer in print. Those out-of-print works are where many authors earn their most reliable, long-term income, and they provide the largest opportunity for the authors to take control of their own works again and make fairer wages through self-publication.

The most obvious answer to this is that if authors are being the ones hit hardest by library and digital lending, then it is the publishers that need to treat their authors with better contracts. The fact that some authors are only earning 5% of profits on hardcover copies of their books (whether those are being sold to libraries or individuals) is eye opening. Alas, like the “we shouldn’t have to tip waiters” argument, this is much easier said than done.

Further Reading:

What Is the Agency Model for E-books? Your Burning Questions Answered

What Do Authors Earn from Digital Lending at Libraries?

You: The Ethics of Piracy

There are number of contributing factors to Tumblr’s enthusiasm for pirating. We are heavily invested in the media we consume, and it is easy to interpret (sometimes accurately) copyright as a weapon used by publishers and distant descendants of long-dead authors to restrict creativity and representation in adaptations of beloved texts. There are also legitimate barriers that keep us from legally obtaining media, whether that is the physical or digital inaccessibility of our local libraries and library websites, financial concerns, or censorship on an institutional or familial level. In fact, studies have found that 41% of book pirates also buy books, implying that a lot of illegal piracy is an attempt at format shifting (ripping CDs onto your computer to access them as MP3 files, for example, or downloading a digital copy of a book you already own in order to use the search feature).

The interesting thing is that copyright law in the U.S. has a specific loophole to allow for legal format shifting for accessibility purposes. This is due to the Chafee Amendment (17 U.S.C. § 121), passed in 1996, which focused on making published print material more available to people with disabilities that interfere with their ability to read print books, such as blindness, severe dyslexia and any physical disability that makes holding and manipulating a print book prohibitively difficult. In practice, this means nonprofits and government agencies in the U.S. are allowed to create and distribute braille, audio and digital versions of copyrighted books to eligible people without waiting for permission from the copyright holder. While this originally only applied to “nondramatic literary works,” updates to the regulations have been made as recently as 2021 to include printed work of any genre and to expand the ways “print-disabled” readers can be certified. Programs like Bookshare, Learning Ally, and the National Library Service for the Blind and Print-Disabled no longer require certification from a medical doctor to create an account. The Internet Archive also uses the Chafee Amendment to break their Controlled Digital Lending regulations for users with print disabilities. While applications of the Chafee Amendment are still heavily regulated, it is worth noting that even U.S. copyright law acknowledges the ways copyright contributes to making information inaccessible to a large amount of people.

Accessibility is not the only argument when discussing the morality of pirating. For some people, appreciation for piracy and shadow libraries comes from a background in archival work and an awareness how much of our historical archives today wouldn’t exist without pirated copies of media being made decades or even a century ago. But we have to be more careful about the way we talk about piracy. Though piracy is often talked about as a victimless crime, this is not always the case, and each one of us has a responsibility to critically think about our place in the media market and determine our own standards for when piracy is ethical. In some cases, such as the recent conversation surrounding the Harry Potter game, some people may even decide that pirating is a more ethical alternative to purchasing. Here are a few questions to consider when deciding whether or not to pirate a piece of media:

What other alternatives have you seen for legally purchasing, renting or borrowing a copy of this media?

Is the alternative to pirating this media purchasing it or not reading/referencing it at all?

Who does this particular piracy affect? Whether or not you think the creator(s) deserve to have their work pirated, you need to acknowledge there is someone who would otherwise be paid for their work.

If a significant portion of consumers pirated this work, what would the consequences be for future projects? Would you be willing to claim partial responsibility for that outcome?

I’m not making any moral statements about pirating as a whole, just noting that the way we discuss the consequences of pirating has a genuine effect on the media landscape. If you got this far,  thank you so much for reading! It is genuine work to try and understand the complexity behind every day decisions, especially when the topic at hand is as complicated as the modern digital lending crisis.

Further Reading:

Panorama Project Releases Immersive Media & Books 2020 Research Report by Noorda and Berens

The Chafee Amendment: Improving Access To Information

National Center on Accessible Educational Materials

National Library Service for the Blind and Print Disabled

Books For People With Print Disabilites: The Internet Archive

Bookshare

Learning Ally

[urlocalqueer]

actually im in a mood today. why are some of y'all so against the internet archive? like, what is the moral bullshit you're on to say the internet archive shouldn't exist?

it's just incredible to me that i just read "well we wouldn't let them get away with selling heroin would we?" HELLO?? why are we comparing digital and physical archival work to selling heroin. where did you get that comparison. is it because you know that "you wouldn't steal a car" wouldn't work? idk just the fact that i read that sentence with my own eyes is. crazy.

[autistic-parker]

the state of copyright law in this country makes me want to smash my head open

[what-eats-owls]

This info was of some surprise to folks on Bluesky, so I'm going to repeat it here in light of the sheer number of "the Internet Archive was an uncomplicated good apart from this one weird move" posts I've seen...

Are we all aware that IA has been gradually pushing the dogma that generative AI is a net public good, and has been feeding books, music, and video into AI?

This article is about how IA is actively using AI in their archives. It's an interview with Brewster Kahle, founder and Board Chair of IA. Choice quote:

This is the blog post about the comments they submitted to the US copyright office arguing against any new copyright regulations for AI. Some more choice quotes:

You can guess how I feel about framing the writers and artists whose work BUILT generative AI as "workers" who just need to be "retrained."

Last year they hosted a zoom panel called "Generative AI Meets Open Culture: Opportunities, Challenges & Ethical Considerations." Multiple visuals were AI-generated art, the panelists were asked to avoid discussing copyright. It's an hourlong panel and I couldn't find a transcript, so I skipped around to see if anyone addressed the elephant in the room. I found at ~32 minutes, a vague gesture at acknowledging it wasn't great if you tried to replicate an artist's style, but fine if you just wanted generic art.

(If anyone finds a more concrete statement in there, and/or a transcript, I'd love to know! The tenor I got was overall "look at how cool these tools are and let's talk about how they're a public good.")

At the end of January 2024, they hosted "Public Domain Day," including a panel on incorporating Generative AI in art. They invited two artists who utilize Generative AI, and a publisher whose books go immediately into the public domain. More quotes from their own writeup:

This was an event in celebration of public domain, but as far as I can tell, they've more or less avoided even acknowledging that creators are actively being harmed by Gen AI. Again, if anyone can find a clearer statement, please share it.

Another wrinkle in this is that Kahle, on behalf of the Internet Archive, sued the US Government in 2004, challenging the law that automatically granted and renewed copyright to a creator. Previously, copyright was opt-in only, had to be regularly renewed by the holder, and cost money to do so. The case went all the way to the Supreme Court in 2007, but was dismissed. (Scroll down to Docket 07-189, Kahle v Mukasey, for court filings.)

To be clear, this is the law that means you automatically own your own work. It's not a shock that Kahle's suit failed. But if Kahle had won, artists who didn't pay to secure and maintain copyright over their work would be SOL right now in the lawsuits against generative AI image and text scrapers.

So yeah. My tiny violin for IA continues to shrink.

[carriesthewind]

The IA's "Open Library" is Not a Library, Yesterday's Lower Court Decision does Not "Hurt Authors," and the Planned Appeal Is (Almost Certainly) NOT a Good Way to Try to Change Bad Law (In Fact, It's More Likely to Make Bad Law Worse)

Ok, so a day later, I'm still mad about this. If anything, I'm even madder. I'm going to write this as a response to the Internet Archive's "The Fight Continues" blogpost, but before we begin, let's get some facts straight:

Copyright law in the United States, especially the law around digital lending, currently sucks. It's really really bad, and anyone with a stake in the game - except the big publishers and e-book services that profit from it - hate it.

That said, copyright law exists as a thing. As I said in a previous post, you *can* try to change it through court cases, but there are certain things you cannot change. And there are certain things you can try to change, but it will be an uphill battle to change them in a positive direction. And notably, as bad as digital lending law is in the U.S., it still could always get worse! And one general rule of impact litigation: if you are trying to change the law, you want to make sure you have the best possible facts. Because the worse your facts are, the worse your case is likely to go.

Yesterday's district court ruling DID NOT CHANGE ANY SUBSTANTIVE COPYRIGHT LAW IN THE U.S. I cannot emphasize that enough. Regardless of whatever you think of the ruling, it was applying already existing law to the facts.

This is because the Internet Archive's "Open Library" absolutely violates existing copyright law. It just does! They broke the law, they had plenty of notice they were breaking the law and harming authors (more on that below) and just think the law shouldn't apply because they don't like it.

The Internet Archive's "Open Library" is not a library. Some big ways it differs:

While it pretends to have a one-to-one owned-to-loaned ratio, as the opinion granting the publisher's motion for summary judgement notes, IA concedes that it allows "partner libraries" to add books to its collection and then doesn't check (and has no way of checking) if the book is out of circulation at the "partner library" at the same time it's being "checked out" of the Open Library. In other words, it's like if you took a book, scanned the pages, and then gave the scans to your friend who then loaned the scans out to other people but totally promised they were only lending the scans to one person at a time so it's basically like there is still just one copy! And meanwhile you still own, are reading, and lending out the physical copy of the book. Except instead of one book, they were doing this on a massive scale. NO, THAT'S JUST THEFT.*

Speaking of which, the "Open Library" didn't keep that promise! Their "Emergency Library" just let everyone borrow as many copies at a time as they could! Again, THAT'S JUST THEFT.

Like I'm sorry if you don't like the idea of copyright at all: right now, we live in a capitalist system where authors need to be paid for their work in order to, like, not die. If you take their work, scan it into your computer, and give it away for free to anyone and everyone, THAT'S JUST THEFT.

Also, most authors love libraries! Libraries allow more people to access their books while not substantially impacting their revenue and not impacting their rights! AUTHORS - not just publishers, authors - DO NOT LIKE AI'S "OPEN LIBRARY." Why haven't authors sued to stop this before, why is this the publishers suing? From the above letter: "Even simple copyright lawsuits must be brought in federal court, and often cost hundreds of thousands of dollars. A challenge to the Internet Archive could easily cost millions." Publishers have deep pockets that authors and authors' groups don't. Also, authors who object to AI stealing their work are frequently subject to harassment.

If IA won this case, the new law that would be made is this: it would be legal to steal an author's works.

*I'm using "theft" and "steal" instead of "piracy" throughout this write-up to make it clear what this is. "Pirating books" is just stealing them.

So to sum up the facts above: copyright law in the U.S. sucks, but it exists. Attempting to change it for the better through the court system would be very difficult. Even then, changing the law for the better would likely require a case with good facts. Unfortunately, the law could also change for the worse. Yesterday's ruling did not change any law. The facts in this case are very bad, because the IA absolutely violated copyright law. That is in part because the IA's "Open Library" is not a library; they just steal books. Many (if not most) authors and author's groups don't like that IA is stealing from them. If IA won this case, that victory would mean that anyone was allowed to steal an author's works.

*deep breath*

Ok, let's turn to the IA's statement, "The Fight Continues":

"Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve."

The Internet Archive is not a library.

No it's not. It is a blow to the Internet Archive, specifically, because you broke the law and it ruled you broke the law. As stated above, it does not change anything with regard to copyright, including digital copyright, law in the U.S., and therefore does not impact libraries or the communities they serve. If you appeal this ruling, as you have stated you intend to, and the law does change for the worse (which is always a risk of appeal, and a risk that gets worse when you have bad facts), THEN libraries might be affected.

"This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online."

I mean yes, in the sense that "controlled digital lending" isn't normal e-book lending. It's the thing you made up where you steal books and illegally redistribute them.

This genuinely sucks for libraries and communities that don't have other ways of accessing digital books because the current copyright scheme sucks so bad! Real libraries are doing things to try to help, and not just steal from authors! More on that below!

"It hurts authors by saying that unfair licensing models are the only way their books can be read online."

OH GO FUCK YOURSELVES

Ok this line, this line right here? That is honestly why I wrote this whole thing.

How DARE you cloak your theft in the real struggles authors face with unfair licensing models. How DARE you pretend you are on the side of authors when you are stealing their works, and they have made it quite clear that they would like you to stop, please. And how DARE you frame it in this "for exposure" bullcrap that ignores the real struggles that authors have to eat, to get healthcare, to get any sort of fair pay and wages for their work, and instead pretend that all authors should care about is whether or not their books can be read online.

And bluntly? If you - not IA, YOU, tumblr user reading this - if you shared this bullcrap statement and told people to donate money to the IA because of this? If you told people they should steal more books in response (because it's the publishers fault, ignore the real authors who are actually harmed)? How DARE you. How DARE you pretend to be on the side of authors and writers.

"And it holds back access to information in the digital age, harming all readers, everywhere."

Except for those readers who are also authors, and need to eat.

And readers who want to read books that will never get written if authors can't write (because they need to eat).

And also, no it doesn't, because it doesn't change the law. It just applies the law that already exists to you. Because you are not above the law.

"But it’s not over—we will keep fighting for the traditional right of libraries to own, lend, and preserve books."

You are not a library.

You were not (and are not) fighting for "the traditional right of libraries." Plenty of other organizations are fighting against bad copyright law in the U.S. This court case, however, was literally just about you stealing books.

Like I cannot emphasize enough that you were just stealing and you got caught.

"We will be appealing the judgment and encourage everyone to come together as a community to support libraries against this attack by corporate publishers."

You aren't a library.

Fuck you for borrowing the (justified) hatred of corporate publishers to paper over your bad actions.

Does "coming together as a community to support libraries against this attack" mean giving you money, as suggested by the calls to action at the bottom of this page? Because you aren't a library.

"We will continue our work as a library."

You aren't a library.

"This case does not challenge many of the services we provide with digitized books including interlibrary loan, citation linking, access for the print-disabled, text and data mining, purchasing ebooks, and ongoing donation and preservation of books."

First, and most important: these are all uncritically good and important things that the IA does! Despite the rest of this post, I am really really glad the IA exists, that it is doing these things, and I hope that it will continue to do this things!

You are correct that this case does not challenge those services! Because those services aren't just stealing books from authors, which is what you were doing, which is what this case is actually about!

I'm skipping the statement from Brewster Kahle because it's just more of the same. The statement then invites you to Take Action! by donating to IA and positing themselves as standing up for libraries! (They are not a library.)

But real libraries and librarians are actually fighting the good fight over lack of access to materials, especially digital materials and bad laws, and you can support them!

If you actually do want to "come together as a community to support libraries," and support digital access, may I suggest instead donating to The Brooklyn Public Library's Books Unbanned program?:

https://www.bklynlibrary.org/books-unbanned

While they aren't directly challenging bad copyright law, they are directly fighting back against laws that are much more actively and materially impact people's access to books, including providing free e-book and database access to everyone in the U.S. age 13-21. It's a great and important program, and your donations can really help!

[connorthevgfan78]

A Quick Word on the Internet Archive:

On October 9 2024, the Internet Archive suffered not only a massive DDOS attack that took several services (including the Wayback Machine) offline, but also a data breach that saw the emails, usernames, and passwords of nearly 31 million accounts leaked.

As of the last time I checked, the Internet Archive remains down, and the hacker group claiming responsibility has openly stated that they took down the Archive because it’s “owned by the US Government” (Spoiler Alert: it’s not, it’s an independent non-profit that happens to be based in the US):

I was very upset, to say the least, when I heard of the Archive getting taken offline, and appalled at the reason given as to why it was targeted. The fact that someone would want to, or in this case, go through with taking down such a rich and diverse center of information, as well as the Internet’s very own history book in the form of the Wayback Machine, is disturbing. Additionally, to have this come nearly months after the Archive lost a landmark copyright case against book publishers, and two months after record companies announced their own lawsuits against the Archive, makes this situation feel like a cup of salt being poured into an open wound.

The Internet Archive is such a vital source of information for everyone on the Internet, whether it be people wanting to revisit an old website from their childhood on the Wayback Machine, or looking for any other form of media from digitized VHS recordings to full books and magazines that are out of print. The Archive is a vital resource for all, and one that we must defend and support now more than ever.

At this moment, the Internet Archive remains down and the details of the breach have been imported to Have I Been Pwned (if you have an IA account, I highly encourage you to check your email address on HIBP to see if it was in the breach data). When it comes back online, I feel like we need to evaluate how we can help the Internet Archive going forward. Whether it be with downloading and storing Archive content on our own systems or supporting the Archive monetarily when able. One thing is clear: going forward, supporting the Internet Archive is going to need to be a community effort, like it has always been since the first files were uploaded to its oldest servers. We’ll all need to contribute in our own ways, so that content from the Internet Archive continues to be preserved and accessible, even in a catastrophic event like this one.

[thefugitivesaint]

If you've been a frequent, repeat visitor to this tumblr and you actually follow my "source" links, you'll know that many (if not most) of those links refer you back to the Internet Archive. I spend many hours combing through the archive for images I find interesting and aesthetically pleasing from artist's whose work I enjoy. I then transfer that labor, freely, into "content" for your viewing pleasure (or so I hope). If you were not aware of this, the book industry (which is basically controlled by 5 companies) brought a suit against the Internet Archive in 2020 that claimed that the Open Library program offered by the IA was financially damaging to the publishers themselves through "copyright infringement." During the COVID-19 lockdowns, the IA created the 'National Emergency Library' which removed lending restrictions on lent digital material allowing for expanded access to books at a time when public libraries were, in many cases, not operating (or operating at a very limited capacity). In response to the NEL, four book publishers sued the Internet Archive claiming that CDL (controlled digital lending) was not an example of fair use and that offering books without wait restrictions was a violation of their copyrights. The argument made by the publisher's was only partially aimed at the NEL, the ACTUAL target of their lawsuit was with the process of CDL itself. A lower court agreed and the Internet Archive appealed. The case was taken to the United States Court of Appeals for the Second Circuit only to have that court affirm the lower court rulings on a unanimous decision (with some seriously questionable reasoning involved).

What does this mean for the Internet Archive? What about public libraries in general? Read the piece and the links provided in the piece. I don't do in-depth analysis here. I just refer you (dear reader) to smarter people who are putting in the work. I really just dig pictures. Pretty pictures. *Homer Simpson drooling* Seriously though, if the topic interests you, follow the links and do yourself some learning.

[theoutcastrogue]

A copyright lawsuit filed by several major publishers puts the future of the Internet Archive's scan-and-lend library at risk. In a recent appeal, the non-profit organization argued that its solution is protected fair use and critical to preserving digital books. This position is shared by copyright scholars, the Authors Alliance, and other supporters now backing IA in court.

The Internet Archive (IA) is a non-profit organization that aims to preserve digital history for generations to come. The digital library is a staunch supporter of a free and open Internet and began meticulously archiving the web over a quarter century ago.

In addition to archiving the web, IA also operates a library that offers a broad collection of digital media, including books. Staying true to the centuries-old library concept, IA patrons can also borrow books that are scanned and digitized in-house.

Publishers vs. Internet Archive

The self-scanning service is different from the licensing deals other libraries enter into. Not all publishers are happy with IA’s approach which triggered a massive legal battle two years ago.

Publishers Hachette, HarperCollins, John Wiley, and Penguin Random House filed a lawsuit, equating IA’s controlled digital lending (CDL) operation to copyright infringement. Earlier this year a New York Federal court concluded that the library is indeed liable for copyright infringement.

The Court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit. However, IA is not letting this go without a fight and last week the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment.

Support from Authors Alliance

IA doesn’t stand alone in this legal battle. As the week progressed, several parties submitted amicus curiae briefs to the court supporting IA’s library. This includes the Authors Alliance.

The Authors Alliance represents thousands of members, including two Nobel Laureates, a Poet Laureate of the United States, and three MacArthur Fellows. All benefit from making their work available to a broad public.

If IA’s lending operation is outlawed, the authors fear that their books would become less accessible, allowing the major publishers to increase their power and control. The Alliance argues that the federal court failed to take the position of authors into account, focusing heavily on the publishers instead. However, the interests of these groups are not always aligned.

“Many authors strongly oppose the actions of the publishers in bringing this suit because they support libraries and their ability to innovate. Authors rely on libraries to reach readers and many are proud to have their works preserved and made available through libraries in service of the public.

“Because these publishers have such concentrated market power […], authors that want to reach wide audiences rarely have the negotiating power to retain sufficient control from publishers to independently authorize public access like that at issue here,” the Alliance adds.

This critique from the authors is not new. Hundreds of writers came out in support of IA’s digital book library at an earlier stage of this lawsuit, urging the publishers to drop their case. [...]

Copyright Scholars Back IA

In a separate amicus brief, several prominent legal and copyright scholars, many of whom hold professor titles, raise similar arguments. They believe that IA’s lending system is not that different from the physical libraries that are an integral part of culture.

“Libraries have always been free under copyright law to lend materials they own as they see fit. This is a feature of copyright law, not a bug,” the brief reads.

What is new here, is that publishers now assert full control over how their digital books are treated. Instead of allowing libraries to own copies, they have to license them, which makes it impossible to add them to the permanent archive.

“The major publishers refuse to sell digital books to libraries, forcing them to settle for restrictive licenses of digital content rather than genuine ownership. Moreover, publishers insist they can prevent libraries from scanning their lawfully purchased physical books and lending the resulting digital copies.” [...]

[solradguy]

The judges have ruled in favor of the 4 publishing companies that sued the Internet Archive for lending out unlimited books in 2020 when covid started. The Internet Archive might not go down, but it would be worth it to backup any Guilty Gear stuff that's on there now just in case. For anyone that hasn't already.

The ruling was announced about an hour ago and the future of IA hasn't been decided yet.

[machine-saint]

it seems bad that I see vastly more talk about how authors who favored the IA lawsuit (especially Chuck Wendig) are awful people that need to burn in hell after the revolution etc etc whatever compared to people insulting, like... the publishing companies and the people in charge of them. e.g here

like, the publishers are the plaintiffs. for 99% of authors they wouldn't be able to pressure their publisher to stop the lawsuit if they wanted. it just feels like people are gravitating to the authors because they have more social media presence so you have a better chance that your target will show signs of damage and they often post cringe-y shit or have bad writing you can make fun of so you can go after that for dunk points.

it's a very shallow analysis.

[anomalocariscanadensis]

the only explanation i can think of for this is the lawsuit IA is facing from music companies, which was over a different program of digitizing 78s but could have extended to this as well. if so, copyright has within the past 24 hours actively destroyed reliable access to some of the most important art of the past 20 years

[ao3cassandraic]

I'm a little confused, what trouble did the Internet Archive get into exactly?

By this I mean, is it going down? Or is it just dealing with politics behind the scenes?

(I occasionally find the Internet Archive to be useful, so I hope it doesn't disappear)

Okay, so, it helps to have context here. First, IA.

IA has its fingers in several pies:

the Wayback Machine (and allied services such as Archive-It) for website preservation

software (including game) preservation

print digitization, which started (I think) as an add-on to software preservation (because manuals matter!) and expanded to pretty much whatever print IA could get its hands on

a lending system for the above digitized collection, known as the "Open Library"

lately, machine-learning tools intended to operate over its digitized-print collections (it's still building this out, I've seen some of the grant applications) -- nothing generative-AI-like yet that I know of, however

A lot of this work is only dubiously and uncertainly within the scope of US copyright. (N.b. IANAL, IANYL, I am certainly not Internet Archive's lawyer, TINLA.) IA takes refuge largely in audacity, and in the centrality of the Wayback Machine to web preservation generally. So they have been known to pull the "if we lose this legal case totally unrelated to web preservation and have to pay gonzo fines, Wayback is in peril!" ripcord.

Is this true? Hell if I know, I don't audit IA's books. I doubt it, though.

What they're in trouble for -- what an appeals court shot them all the way down for yesterday -- is what they did with their Open Library of digitized print books, many of them in-copyright, during COVID lockdown. And to understand all that, we have to untangle some things about US copyright. Ugh, somebody hand me a read-more link.

Why can libraries lend print books, vinyl, cassettes, CDs, and DVDs in the US? Because of a legal doctrine called "the first sale right," which goes like this: if you have a legally-produced physical object containing copyrighted material, you can do whatever the fuck you want with that physical object with zero copyright implications --other than reproduce/copy or perform it (which does have copyright implications, complex ones).

You can (yes) burn it. You can lend it to a friend, or an enemy, or a random stranger. You can give it away. You can throw it away. You can resell it. You can hang it on your wall or in your window. You can make an art installation with it. And the copyright owner cannot win a copyright-based lawsuit over any of this, even if they hate what you're doing! Even if it competes with them selling new copies (as the resale market absolutely does, and as some jerkfaced copyright owners -- usually corporations, not authors! -- love to complain that libraries do)!

Here's the thing, though, and it's an important thing so I'm gonna big-type it:

The right of first sale does not apply to anything digital ever.

Not ebooks (digitized or born-digital, doesn't matter). Not streaming anything. Not paywalled online news or research.

When libraries offer these to patrons, it's through contracts with publishers or aggregators. Long story short, a lot of these contracts are ridiculously restrictive (not to mention expensive) to the point of cartoonish evil, but it's what we have to work with.

The idea behind Controlled Digital Lending is "if libraries purchased a physical item legally, we should get to lend the item to one person at a time as we always have, and it shouldn't actually matter whether what we lend is the physical item or a digital version of it, as long as only one or the other is out to a patron at a given time."

Which is an untested legal theory! I can't tell you whether it's legal! Nobody can! The case law doesn't exist! Yeah yeah, there's relevant past cases in both directions having to do with accessibility or Google Books or whatever, but a specific precedential ruling on CDL is not a thing that presently exists.

No, not even now. Because what IA did with its Open Library during lockdown, and got slapped down for by the court, is not CDL as defined above. IA didn't hold to one-person-at-a-time-per-book. They tried to make a fair-use argument for what they actually did (that is, not for actual CDL), and the court was not having it.

The thing is, IA's stumblebummed legal fuckup means that actual CDL, as actual libraries (n.b. the IA is not an actual library or an actual archives, I will happily die on this hill, I loathe IA like poison and do not want to admit them to my profession, IA people have dissed me and my work TO MY ACTUAL PHYSICAL FACE and they only love libraries or librarians when trying to hide behind us) were trying to design and implement it, now faces additional legal hurdles. Any court looking at an actual CDL program has to take into account IA getting slapped down. And that's if we can even find a library or library consortium with deep enough pockets and hardcore enough legal representation to even defend such a case.

The thing also is, IA just issued Big Publishing a gilt-edged invitation to use this precedent to sue actual libraries, especially academic libraries, over other things we do. (I'm gonna pass over exactly what in silence because I do not want to give those fuckers ideas, but... there have been past lawsuits, look 'em up.) THANKS, BREWSTER. THANKS EVER SO. Asshole.

For a calmer take than mine, check out Library Futures, which to their credit has not given up all hope for CDL.

This IS the short version of all this nonsense, believe me. I used to teach a whole entire three-credit graduate-level course in the long version. (Which IA would doubtless diss to my face if they knew about it.)

[xenosagaepisodeone]

Forgive me if this seems like a "but I did eat breakfast" moment, but why is it that bad that people's grievance with the IA lawsuit was that they believe they didn't actually commit copyright infringement? Yeah, copyright laws suck shit, but they're The Rules we have to live with. Plus there are legitimate defences for how its operating within fair use, even with our current draconian laws, especially since IA is a nonprofit organization.

because far too many people let copyright be the arbitrator of what is right and wrong. even now a lot of them recognize the contradictions of how copyright law is applied ("why is IA being punished for X but Y Company isnt punished for Z") but aren't willing to contend with what copyright being arbitrarily enforced by whoever happens to have the most money actually means. like, you can feel frustrated with how IA handled certain parts of this debacle at the beginning and see value in fair use and such, but it's frustrating to me how the popular sentiment on the matter doesn't contain a whiff of "free information is good, actually", even if it has absolutely no impact on how the law plays out. the fact this is coming so close after all the posts of me humming and hawing about artists who see their work as "property" instead of "art" and how that impacts the ecosystem of art creation/sharing just makes it all another episode of "come on, guys"

[what-eats-owls]

a point about the IA situation that I cannot make on twitter without death threats

Like many authors, I have complicated feelings about the IA lawsuit. IA has a whole raft of incredibly invaluable services, that's not in dispute. The current eBook licensing structure is also clearly not sustainable. Neither was IA's National Emergency Library, which was unrestricted lending of unlicensed digital copies. There are some thoughtful posts about how their argument to authors, "you'll be paid in exposure," is not especially compelling.

But I'm not here to discuss that; I'm here to talk about the licensing. TL;DR I don't want my work being fed into an AI or put on the blockchain, and to enforce that, you need a license.

So, here's the thing. IA's argument for the NEL boils down to "if we possess a physical copy of the book we should be able to do what we want" and that's frankly unserious. (Compare: Crypto Bros who thought spending $3 million on a single copy of a Dune artbook meant they owned the copyright.) Their claim is that by scanning a physical copy of the book and compiling the scans into a digital edition, that is sufficiently transformative to be considered fair use.

What that gives them is something that functions almost identically to an eBook, without the limitations (or financial obligations) of an eBook license. And I'm sure some of you are thinking, "so what, you lose six cents, get over yourself," but this isn't actually about the money. It's about what they can do with the scans.

A license grants them the right to use the work in specific, limited ways. It also bars them from using it in ways that aren't prescribed.

For example, what if IA decides to expand their current blockchain projects and commit their scanned book collections to the blockchain "for preservation"? Or what if IA decides to let AI scrapers train on the scanned text? One of their archivists sees AI art as a "toy" and "fears [AI art] will be scorned by the industry's gatekeeping types."

Bluntly, an unlicensed, unrestricted collection seems to be what they're gunning for. (Wonky but informative thread from a lawyer with a focus on IP; this cuts to the pertinent part, but the whole thing's good reading.) The Authors Guild is in no way unbiased here, but in the fifth paragraph of this press release, they claim that they offered to help IA work out a licensing agreement back in 2017, and got stonewalled. (They also repeat this claim on Twitter here.)

At the end of the day, I don't want the IA to fold; I don't think anyone does. As a matter of fact, I'd be open to offering them an extremely cheap license for Controlled Digital Lending. (And revamping eBook library licensing while we're at it.) I think there's a lot of opportunity for everyone to win there. But IA needs to recognize that licenses exist for a reason, not just as a cash grab, and authors have the right to say how their work is used, just like any artist.

[chasm-connected]

really wish someone would put up an actual fact checking thing on the internet archive because i just see people yelling about it on whatever side and i dont understand any of the points because they contradict each other and i'd like a source before i believe one over the other

would like to know:

while people are saying it isn't a library, is the IA actually buying the books before putting them up, you know, like a library. i do not want to know other points right now about this like how many people borrowed them at once (already read that part). i want to know if the authors were paid for the copy that is uploaded. like a library.

this is more for myself but because i cannot recall if the original posts way back when explained it: if the internet archive loses the lawsuit, does the book part go down or does the entire internet archive go down with the archives of dead websites and historical archives of papers and articles and art and the old internet and everything? because like. because the latter is bad. you know that right. the latter is really bad and is much more serious than a copyright issue. like is there any post on that. can someone please clarify

like i would really like to see some actual info. can i please get a source. i am autistic and starting to lose patience. sorry. thank you.

[wagahai-da]

anyways the lawsuit was not ia's fault and every writer who claims to have been harmed by them is an idiot who thinks fellating publishers will protect them