#hatchette v. internet archive

[carriesthewind]

I reread the IA's contemporaneous post justifying their "National Emergency Library", and one of the things that struck me is just how selfish it was.

(It was also full of falsehoods, ranging from exaggeration to outright lies, but that's another matter.)

While 2020 feels like it was several decades in the past, it was actually only a few years ago. And I remember March of 2020! I was there! And oh my god, is this post right in line with every other selfish, demanding asshole determined to make a global pandemic all about themselves!

First of all, there is the language of the post - it is a "tremendous and historic outage" that books are unavailable to patrons because libraries are closed for the pandemic. "Right now, today, there are 650 million books that tax-paying citizens have paid to access that are sitting on shelves in closed libraries, inaccessible to them."

Missing from this outrage is a recognition that, like. Librarians are people. They get sick, and die.

They did get sick, and died.

Libraries were closed not only to protect patrons and the public, but librarians too. Libraries were closed to protect people, human beings. Because generally speaking, even the most enthusiastic supporters of access to books and knowledge, prioritize lives over books.

The AI's post, however, reeks of an entitlement to things that *my* tax dollars paid for. Libraries and library collections aren't a public good. They're something *I* should be able to access anytime I want, damn the context or the consequences.

(Was it also a historic outrage when I had to wait several months to check out Nona the Ninth, because so many other people were checking it out?)

Second, as I said, I remember early 2020. And in spring and summer of 2020, there was more free content on the internet than before or since. So many people and so many institutions were bending over backwards to provide people with books and tv shows and music and podcasts and virtual tours and collections and just about anything that someone could figure out how to digitize. So many people were giving away books for free, or writing/recording new content to give away for free. I can't even remember how many times I heard or read someone telling their readers or listeners just to pay what they could, if they could. So many people and institutions were giving away so much, do so much, to provide access to knowledge and books and entertainment and information.

And in that moment, the IA decided to steal from people. When so many people, so many authors, were acting so selflessly, they decided that it wasn't good enough. And instead of giving away themselves, they decided to steal from authors and pat themselves on the back for "meet[ing] this unprecedented need," when they didn't even actually do anything themselves. Or maybe more accurately, the only thing they did was something irrelevant to the actual needs of the community, something they wanted to do anyway, something to try to use a pandemic as an excuse to advance their agenda.

Because third, there is zero concern for the population of patrons actually most impacted by the closure. The IA cares, to a fault, only about information being digitized.* But many people who use physical libraries, many of the people most impacted by their closure, are people who do not have access to the AI's so-called "open library." And people who could access digital books generally continued to have access to their library's e-book services, and to tons of other free content. The patrons who were actually in the most need are ignored as irrelevant.

*And I want to be clear - they care that information is digitized, not about digital access. "Access" means more than information being digitized and theoretically being able to be read.

It's so clear that IA didn't really care about the patrons of physical libraries. Instead, they saw a real problem, and instead of working toward any solutions, decided to use it as a prop to push their own agenda. (Again, while people were dying.)

It's just all so deeply selfish.

[welcometotheravenclawcommonroom]

INTERNET ARCHIVE IS IN DANGER

Many of you who are online more than I am have likely/almost certainly heard that in the case of Hatchett v. internet archive, a judge ruled against IA’s “motion for summary judgement” (which you can look at below). They ruled that their controlled digital lending program (CDL) was not fair use and a violation of copyright.

But here’s the thing. IA and their partner libraries only scan and lend those books for which they have physical copies, and they lend only the number of copies a book that they have at one time. They are no different from your average library in this respect. The difference? They don’t require a physical address to have an account (As far as I can remember, correct me if I’m wrong), so homeless people are able to check out books, music, and everything else that IA offers for free.

They offer deleted web pages via the Wayback machine, which are essential for journalists doing research into shady shit that may have been deleted from the regular internet.

AND they’re not limited by the geographical boundaries of local libraries. Everyone, everywhere, has access to the same materials, except for in cases where there are legal restrictions on internet (a VPN can help you there!)

There’s NOTHING illegal about what IA is doing. But if we lose them, we’ll lose SO MUCH knowledge. Greedy publishers with more money they can ever spend are trying to restrict free access to knowledge to make more money they don’t need (when they’ve already made money of IA buying physical copies of the books in the first place!).

IA is appealing, but if publishers win this case, what’s next? Will they come for project Gutenberg? In my opinion it’s likely, because a loss in this case will likely call into question precedents involving copyright laws and public domain.

Which brings me to my next point- THEY WILL COME FOR LIBRARIES!!! IA is essentially an online library, one that has been and should be protected under the law. I’m not a lawyer (disclaimer), but this seems pretty clear to me: If slimy lawyers working for slimy companies and in league with slimy judges win this one, they will have shattered the way the law views existing permissions under copyright law.

And if they come for libraries? Well, the conservative US government already controls education, teaching us a white-washed view of history. The only way to truly learn a global perspective (and one that is written from the account of the oppressed and those lacking power) is to seek it out on one’s own. And systemic inequalities mean that many people could not afford to seek out that knowledge without libraries and free informational exchanges like IA. And 🏴‍☠️ can be hard, especially if you’re not as good with technology.

If oppressed and historically disenfranchised people are kept ignorant, then it is easier to keep them oppressed and to convince them to work against their own interests. College is financially unattainable for many, and free informational exchange is often the only way for people to expand their perspective. This threatens the powerful.

There are a plethora of other reasons that IA and libraries are good (safe and free entertainment, diachronic historical perspectives, a safe haven for the unhoused), but I think I’ve said enough and I have to get to my underpaid, un-unionized job (learn about collective action and unionization at your local library or on IA!!!)

If you can, donate! I’ll put links below for the donation page for IA, and the sources I used.

[bay-city-surfin]

The Internet Archive, one of the largest internet libraries and databases, is in danger. Judges have sided with publishers in the Hatchette v. Internet Archive case, and while they plan to appeal, its a huge blow for libraries everywhere. If this appeal doesn’t go through, it could mean the loss of potentially millions of digitized books and articles.

If you DM me (discord or here) to show you’ve donated ANY amount to the internet archive, even a cent, I’ll give you a free sketch of whatever you want (within reason of course).

To donate, go here.

For more information on Hachette v. Internet Archive, go here.

[gothicprep]

hatchette v internet archive is… concerning

[senadimell]

Hatchette vs. Internet Archive actual case links

So I decided I should probably hear the publishers out in Hatchette v. Internet Archive and ran into some info. I’ll be talking about US law, libraries, and companies throughout, so assume all reference to “libraries” is to US libraries, etc.

Publishers’ complaint: https://cdn.technadu.com/wp-content/uploads/2020/06/Hachette-Book-Group-Inc-v-Internet-Archive-complaint.pdf

IA amicus briefs: https://www.eff.org/cases/hachette-v-internet-archive

So I started reading the actual case and it got me hopping mad.

8. IA defends its willful mass infringement by asserting an invented theory called “Controlled Digital Lending” (“CDL”)—the rules of which have been concocted from whole cloth and continue to get worse.

guess what all theories are invented and all rules are concocted from whole cloth! hope that helps.

For example, at first, under this theory IA claimed to limit the number of scanned copies of a title available for free download at any one time to the number of print books of that title in its collection [...] Then, in the face of the COVID-19 pandemic, IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing with great fanfare that it would remove these already deficient limitations that were purportedly in place. Today, IA offers an enormous universe of scanned books to an unlimited number of individuals simultaneously in its “National Emergency Library.” IA’s blatant, willful infringement is all the more egregious for its timing, which comes at the very moment that many authors, publishers, and independent bookstores, not to mention libraries, are both struggling to survive amidst economic uncertainty and planning deliberatively for future, changing markets.

Gee, that’s a funny way of saying that a service that’s been running since 2006 (aka 14 years) temporarily launched an emergency program to lend books since physical libraries across the country were shut down and nobody could access the books. Just...how dare they bring up libraries here? How dare they? Like IA’s threatening libraries? I’m sympathetic to pandemic concerns about livelihood for authors, publishers, and especially bookstores, but they launched the program because libraries were shut.

[...] —though no provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies.

actually, guess what? check out this ruling on Google Books! Especially provision 2 of the Second Circuit’s reasoning.

https://en.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google,_Inc.#Second_Circuit_appeal

On April 11, 2014, the Authors Guild appealed the ruling to the U.S. Second Circuit.  It also began lobbying Congress to create a non-profit organization similar to ASCAP that would digitize and license books from participating authors to all libraries, schools, and other organizations choosing to pay a subscription fee.[56] Oral arguments were held on December 3, 2014, before Judges Pierre N. Leval, José A. Cabranes, Barrington Daniels Parker, Jr.[57]On October 16, 2015, the Second Circuit unanimously affirmed the judgment in Google's favor.[58]

The court's summary of its opinion is:

In sum, we conclude that:

1. Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use.

2. Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.[59] (emphasis added)

SCOTUS denied the plaintiffs’ appeal, so the Second Circuit’s ruling holds.

Now I’m not saying that the above ruling means that Open Archive’s activities are a well-traversed legal area, but that’s a far cry from “no colorable defense.” If Google is allowed to digitize books wholesale without prior authorization, and is allowed to supply the copies of books to libraries in a limited manner, aka basically what Open Library did for fourteen years, temporarily stopped in the face of library closure for just under three months, and then resumed for next two years until the present day, then that seems like a “colorable defense” to me. 

Returning to the quote

Then, in the face of the COVID-19 pandemic, IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing with great fanfare that it would remove these already deficient limitations that were purportedly in place.

Huh, you know what that “cause” that publishers are so mad about is?

IA’s infringement is intentional and systematic: it produces mirror- image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available

I’ll call attention to the word “produces,” because what Hachette et al neatly sweep under the rug is the fact that it’s hard to digitize massive amounts of books, and also? Those books don’t just magically appear at their doorstep. They don’t just steal them. Someone had to buy them first, and then donate the book. They’ve been involved with digitizing archives from the beginning.

And who else do we know that buys a copy of a book and then makes it available to the reading public?

Publishers have long supported public libraries, recognizing the significant benefits to the public of ready access to books and other publications. This partnership turns upon a well-developed and longstanding library market, through which public libraries buy print books and license ebooks (or agree to terms of sale for ebooks) from publishers, usually via book wholesalers or library ebook aggregators. IA’s activities are nothing like those of public libraries, but rather the kind of quintessential infringement that the Copyright Act directly prohibits.

for someone who just loooves libraries, you are awful mad about the distribution of books to the public for free. Specifically, bought copies of books. Because you know where those “truckloads of books” come from? (”On the contrary, it is about IA’s purposeful collection of truckloads of in-copyright books to scan, reproduce, and then distribute digital bootleg versions online”)

Yeah, they come from libraries. And donors. And libraries also get books from donors! I donated five books to my local public library when moving house!

Moreover, while Defendant promotes its non-profit status, it is in fact a highly commercial enterprise with millions of dollars of annual revenues, including financial schemes that provide funding for IA’s infringing activities. By branding itself with the name “Open Library,” it thus badly misleads the public and boldly misappropriates the goodwill that libraries enjoy and have legitimately earned.

Oh, I could seethe. I am seething mad.

“oh no! how dare a ““non-profit”” that hosts close to 100 pentabytes of data recieve money? nonprofits means *~*free*~*!” 

How dare someone provide a service to the public without requiring a direct profit in return. How dare a non-profit fundraise? how dare a non-profit invest in “financial schemes” to provide a more reliable source of income to make up for all of the free services they provide?

Guess what! If you provide an expensive service, you’ve got to get the money pay for it even if you don’t charge the users!

Also, for any non-US people who might see this, “scheme” is not a neutral word in US English. We don’t talk about “government schemes” unless we mean “the government is villainously plotting to do Bad Corrupt Things Under The Table.” We would use “program” or “push” or “drive” to indicate “a neutral/positive thing that the government is starting up.” It is not a compliment.

And you know what else? Do you know what else the Open Library does for its print-disabled patrons? It makes those scanned library books accessible through DAISY talking digital book. The Open Library is also an accessibility project.

I’m not print disabled and haven’t done much research on library accessibility, so I’m uninformed and may miss some important points (feel free to chime in if you have more expertise than I), but most libraries that I’ve been to have much smaller accessible collections compared to their ordinary fare. Things like large print, braille, and physical audiobooks are historically much smaller collections than the regular print collections in public libraries. I imagine that public libraries may offer on-demand procurement of accessible books, but I haven’t used those services and my library does not have a readily-accessible page on library accessibility beyond large print, so I’m still unfamiliar with this.

(When it comes to big university libraries, mine had massive stacks that vastly outnumbered large print, braille, or physical audiobook offerings, but most of the books I wanted were available online and I’m assuming that digital books generally have more accessibility options).

When it comes to the ratio of accessible books to inaccessible books, the Open Library is far from perfect, with a ratio of 25 million available books to 3+ million accessible books, but 3 million books is still a sizeable collection, far, far more than you’d be able to easily access at ordinary local public libraries, and you can access it anywhere instantly instead of through mailing programs like those of libraries who participate in The National Library Service for the Blind and Print Disabled’s programs, like the Utah State Library for the Blind and Disabled.

Part of accessibility is removing disabled people’s barriers to equal participation. These include things like additional costs. Generally speaking, most corporations don’t have a vested interest in accessibility unless they specifically cater to a segment of the disabled market. Libraries aren’t perfect, but they do try because they’re subject to ADA. 

So yeah. I’m gonna stop reading the compaint for now because I’ve got a massive headache building, but from the beginning, it misrepresents the Internet Archive and the Open Library’s services, uses derogatory and inflammatory language throughout, slights a non-profit that provides expensive services for free for having a large operating budget, and pays lip service to libraries while trashing IA on a line of reasoning that showcases their true hostility to libraries’ core purpose. (and also ignores just how much IA has worked with organizations like the Library of Congress.)

So shame on you, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC. Shame on you.

.

.

.

Miscellaneous things I didn’t fit into the post proper:

If you want to read more about copyright and accessibility, here are two sources:

https://library.osu.edu/site/copyright/2015/08/28/copyright-and-accessibility/

https://web.archive.org/web/20170625075714/https://www.loc.gov/nls/reference/guides/copyright.html

https://www.ala.org/asgcla/resources/libraryservices (this is just general accessibility)

https://americanlibrariesmagazine.org/blogs/the-scoop/ada-inclusion-in-libraries/ (more on libraries and accessibility, cw for brief mentions of historical discrimination practices)

Accusations about withholding discovery (IA complained twice that Publishers weren’t providing documents, then Publishers accused IA of the same thing and said they were “stonewalling” discovery to “run down the clock.”)

https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/87971-in-new-filing-publishers-accuse-internet-archive-of-stonewalling-discovery-in-scanning-lawsuit.html

https://www.publishersweekly.com/binary-data/ARTICLE_ATTACHMENT/file/000/004/4824-1.pdf

An EFF (the same people defending IA in the lawsuit) post about the Google books ruling:

https://www.eff.org/el/deeplinks/2015/10/big-win-fair-use-google-books-lawsuit

[carriesthewind]

"But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library." Hachette Book Group, Inc. v. Internet Archive, No. 23-1260, at 31 (2nd Cir. Sept. 4, 2024).

[carriesthewind]

Ok I'm not done complaining about this.

The IA's tweets about how "Publishers removed '1984' [and Fahrenheit 451] from our library"! really underscore how to me, their messaging has been more about self-serving performative manipulation than anything else.

They are deliberately comparing the enforcement of existing copyright law against them, individually and specifically, to the wholesale destruction and suppression of knowledge.

The metaphor really doesn't work in this case*, but that doesn't matter. The idea is not to convey a truth, but a feeling of oppression and injustice.

I just checked. I can check out both of those books, by ebook, from my local library. As in, they are available to check out right now.

And that's not true for everyone, I want to acknowledge! There are real access issues, even for popular books like those. And there are absolutely a number of people who only had access to certain in-copyright books because of IA. ...but also, again, because of how IA works, 1) those are also people who already had the ability to access the internet and all the content therewithin (including other resources designed specifically by librarians to get people access books that may be banned where they live), and 2) they still have access to so many other books through IA (and other resources).**

*And just to make it clear - I'm not saying that there aren't a lot of good arguments and examples about how aspects of the current copyright regime are dystopian. But in this context, these specific books are not the metaphors you are looking for.

**They are currently retweeting a bunch of folks from India, and it feels...a bit weird to me, in context. I know literally nothing about access to books and media in India. (I suspect, given the number of people, it is a topic with a great many facets and issues.) But there's something that feels...off to me, about how much they are focusing on the fact that this removed "more than 1,300 banned and challenged books"***, all of which, as far as I can tell, are either English-language books or books that were already published in English. It makes me question to what extent anyone involved in leadership in the IA knows about access needs in India either.

***Worth noting: they are counting each individual copy of a book - so in getting to their numbers, they count Lady Chatterley's Lover, for example, as 38 books removed.****

****Also you can still borrow all of these books from IA if you need access because of print-reading disability. They aren't actually removed and if you were relying on their print-reading accessibility program, you can still use it.

[carriesthewind]

A small bit of good news with the IA's appeal: the second circuit did disagree with the district court's holding that the IA's was engaged in commercial activity (which was a Very Bad finding). This wasn't a "reversal," as the appeals court came to the same decision as the district court in respect to both the holding and the relevant factor (the purpose and character of use), and it is dicta (i.e., not binding precedent). But the appeals court conclusively found that the IA's use of the books it copied was non-commercial, which is much better than the district court's finding that partnering with booksellers (putting a link to buy from a bookseller and getting a small cut of proceeds from clickthroughs), soliciting donations, and potential secondary reputational benefits made their use commercial. (And a relief - one of the things I was worried about with the appeal was the risk of the appeals court affirming the district court's finding.)

(Also since I haven't linked it yet: you can read the opinion for yourself here. The discussion about commerciality is p. 33-39.)

[carriesthewind]

One of the really frustrating things about the IA's actions is how unnecessary it all was, and yet the people uncritically defending them don't seem to be able to acknowledge that. One consistent trend I keep seeing with most of the people who are defending the IA's actions with their "Open Library" is that they describe how valuable the "Open Library" was/is to them. But then the things they describe are things that are almost always either a) well within the bounds of existing copyright law (e.g. out-of-copyright materials, legally owned or reproduced material (e.g. open licenses), or materials they are accessing as someone with a print disability) or b) within a much more careful and restricted use of CDL (e.g. out of print materials). Because that is a super-valuable resource that they provide! (And will hopefully still be able to provide!) They didn't need to lend out copies of popular, in-copyright materials with existing e-books! It's just! Arg!

[carriesthewind]

Oh boy, I've got some people real mad because I suggested that taking the fruit of other people's labor without paying or asking permission is selfish.

[carriesthewind]

Reading through some of the Appendix for the MfSJ in Hachette and my god, does it really emphasizes how knowingly sloppy and reckless the IA was. These are all statements of material fact by the publishers that the IA agreed were undisputed:

"Internet Archive does not always comply with its [own claimed] five year limitation. For example, two of the Works in Suit, All the Presidents’ Women and The Man Who Solved the Market, were published in 2019 and republished on the IA’s Website that same year." A-6066

"Mr. Kahle stated in a July 2019 blog post that Internet Archive 'has worked with 500 libraries over the last 15 years to digitize 3.5M books. But based on copyright concerns the selection has often been restricted to [public domain] books.'" A-6080

"Internet Archive’s former Director of Finance, Jacques Cressaty, also testified that, by 2016, 'our library partners ran out of books that were out of copyright, so pre-1923, and they’re reluctant to give us books that were in copyright.'" A-6080

"Mr. Freeland testified that Internet Archive 'was aware … that some partner libraries did not suppress circulation when they agreed to bec[o]me a partner library and put their books into controlled digital lending.'" A-6127

"Mr. Freeland testified that Internet Archive is also aware that even if a library puts a physical book into a non-circulating reference collection, it could be read in the library while the ebook equivalent is checked out." A-6127

Bonus: More cataloger nightmare fuel:

"The Internet Archive has stated that “Open Library’s book catalog has millions of books and thousands of data errors. Sometimes author names are misspelled, book covers are missing, or works and authors are duplicated or conflated.” A-6130

[carriesthewind]

Publish exploit authors ten fold.

Sorry, I don't accept numerical arguments unless they come with a source and explanation of how those numbers were achieved.

To the extent this is an argument that the existing publishing industry exploits authors, I agree.

To the extent that it is an argument that the existing publishing industry exploits authors more than the IA's open library did, I think it will vary for individual authors. Some authors who were supremely fucked over by publishing contracts were not/did not feel exploited by the IA. Others were very much in the opposite situation. However, overall, IA's model was much worse for authors because it involved stealing their work wholesale.

To the extent this is an argument that the existing publishing industry as a systemic institution exploits authors more than any systemic harm done by IA to authors, I will be honest: this is a question that would require different systemic harms in a way I don't feel capable of. But I don't think I need to. These aren't harms that are in opposition to each other: they compound each other. IA had the opportunity to try to push copyright law in a positive direction to help both the public and authors. They instead choose a course of action that inevitably lead to creating case law that may well harm such efforts by others. They did so over the direct objection and alarm of many authors, and have chosen to frame their action and its inevitable consequences in a way that villainizes and causes harassment of authors. IA absolutely exploited and hurt authors. And their actions did nothing to hurt the existing publishing industry - if anything, it helped it.

To the extent this is a command, alas, I do not have the ability to publish the work of exploited authors.

[carriesthewind]

(from https://thenewstack.io/internet-archives-brewster-kahle-on-ai-for-digital-libraries/)

Sigh.

Did anyone reporting on this case bother to actually read the filings?

[carriesthewind]

Hi, @incomt65 ! I'm a lawyer, which means it's my job to be able to back up everything I'm saying with provable facts!

So let's take a look at a few of the claims that you made in your response in an attempt to "prevent the spread of misinformation."

First, you begin your response by obfuscating the difference between "public library" and "library." For those unaware, there are many different kinds of libraries, and the term can be used in all sorts of contexts. Here is a bunch of definitions assembled by the American Library Association, with more specific definitions of a few different kinds of libraries, including public libraries. As you have "a master's degree in library & information science," I believe you must know the difference, and it is hard to believe that your obfuscation is not deliberate.

(putting the rest of below a cut because this post is already too long)

Second, you claim that the IA is "recognized as a library." Now, this is a claim that I see all the time. Since you didn't bother to provide a source, I can't call you a liar, since you may have just meant, "news articles uncritically report that it is is recognized as a library," which I guess is a kind of recognition by those news writers.

But we're in the business of preventing the spread of misinformation, so let's be a bit more specific and look for a source, shall we?

Let's turn first to your argument that it's "engaged in the work of libraries." You cite the "work of libraries" as: "preserving and providing access* to information."

I'm going to be honest, this is one of the broadest definitions of a library I have ever read. And I don't think even IA's proponents agree with you: here is an article some of them wrote last year arguing that the IA's "open library" is a library. However, even in that article, despite picking a definition themselves, they fail to provide evidence that it even meets the complete definition of a library that they themselves proffer. Most notably, one of the listed characteristics of a library in that article is that it "offer[s] targeted services and programs." They do not offer any evidence that comes even close to meeting that prong of the definition.

*I will also note that, like every other angry reaction I've received, nowhere in your response to you address the issue of access that I raised in my post. This isn't relevant to my point in this response, but it's really really telling to me that a librarian who believes in "the value of information access for everyone" doesn't think the question of what access actually means is worth addressing.

But let's turn back to your claim, that the IA is "recognized as a library." Where does this come from?

Well, if we go all the way back in the IA blog's archives, we find this post: "Internet Archive officially a library". This post links to a local paper which states, "In May, California officially recognized the Internet Archive, established in 1996, as a library." The article claims this designation means "the online archive eligible to apply for several federal grant programs that are administered by the state of California." But it notes that Brewster Kahle says it means that the "digital library is on equal footing with a print material archive." But what does it actually mean?

Well, if we do some more digging, it looks like the State Librarian (of Schools and Libraries Division of USAC) recognized it as a library for the purposes of allowing it to apply for federal grant programs administered by the state under an exception for "other special library"**...an exception which it seems may no longer exist. It was still listed on the California State's Library Website as a grantee in 2017 (along with some other cool archiving projects that while valuable, are not libraries), but is not currently listed.

**Caveat that this is an unverified comment from an old blog, but the information provided matches the controlling guidelines from 2007.

So yeah. That is, as far as I can tell, the IA's whole basis for the argument that they have any formal recognition as a library. That in 2007, a single state allowed it to apply for a grant.

Of course, @incomt65, you didn't actually include any evidence for your claim, so I may be missing something. If you would like to include your basis for your assertion, I'm happy to review. I wouldn't want to spread misinformation.

Third: you claim that for all the materials in the IA's "Emergency Library, "They own these books legally, because they either purchased them or received them through donations, the same methods any library employs to build a collection."

This is factually untrue, according to the IA themselves. (Whoops. Maybe you should have actually checked this before posting misinformation online.) While some of the books were purchased or received through donations, others were scanned from the partner libraries' collections. From Hachette, a more detailed description of how this worked: "In 2018, IA launched the “Open Libraries Project,” allowing libraries to “contribute” their noncirculating print books to the number of concurrent checkouts available on IA’s website. Participating libraries send a catalog of their noncirculating books to IA, which then runs an “overlap analysis.” App’x 6095. If the library’s catalog includes a book for which IA already has a digital copy, IA increases the number of available concurrent checkouts by one. Participating libraries may, in turn, integrate links to IA’s digital books in their own catalogs." Hachette Book Group, Inc. v. Internet Archive, No. 23-1260, at 11 (2nd Cir. Sept. 4, 2024) (footnote omitted) ***

***I will be citing from Hachette repeatedly here, because the facts in the decision are all taken from undisputed statements of facts by the parties, i.e., these are all facts that both the publishers and IA agreed were true before a court of law.

Furthermore, you claim that the IA did not "illegally obtain any of the resources in the National Emergency Library." Again, hi, lawyer here. Whether or not something is "illegal" is a factual, not a moral, question. You might think is should be ok to scan a book you own and then lend that scan out to other people. You may think that the scan should be considered the same as the physical book, so if you bought the book legally, you also obtained the scan legally. But regardless of your opinions of what should be, the court very clearly found that the IA's scanning and then lending of those books was, in fact, illegal.

That's one of the things about courts: they get to decide what is and isn't illegal. You may not like what they describe, but factually describing what the law is is not a misstatement. Declaring that something wasn't actually illegal because you think it was morally fine, however, is.

Fourth, you state, "Prior to COVID-19, IA was engaged in loaning these digital books using the same approach that almost every library uses: by allowing users to borrow them with artificial restrictions imposed."

This is...kind of correct, if only because you have phrased it very carefully. See, the reason that libraries impose artificial restrictions is because those restrictions are imposed by the licenses under which they own the digital books. See Hachette, No. 23-1260, at 8-9. The IA did not have a license to digitize or lend digital copies of the books that they were lending. See id. at 14. So not a misstatement, but kind of misleading, don't you think?

This is made more misleading by your statement, "But the process the IA had in place for loaning digital books prior to the pandemic was exactly the process any "normal" library follows." Again, this isn't really true. The IA was engaged in a form of "Controlled Digital Lending," which there are entire position statements about and a white paper on because it is different from the normal digital book lending process. And I say "a form of CDL" because different libraries are approaching it in different ways. For example, Virginia's Academic Library Consortium only allows CDL if the library itself owns the physical book. University of Illinois at Urbana-Champaign Library, however, only used CDL if the material was not already available as an e-book.

Fifth, you state, "(I will also note that many of the books in this collection, which spans books from the 1920s to early 2000s, are no longer protected by copyright and/or are no longer in print, and therefore it is not possible to pay a publisher to obtain them. Loans of these books in no way represent "lost sales" for publishers.)" This is correct! It is not a misstatement! However, as the lawsuit wasn't about that portion of the IA's collection (a point which you never clarified) it is utterly irrelevant to your post and appears intended only to represent the nature of the case. See Hachette, No. 23-1260, at 14-15 ("All 127 Works are available as authorized eBooks that may be purchased by consumers or licensed to libraries.")

Sixth, you state, "The only difference in the case of the National Emergency Library is that IA temporarily suspended one of the artificial restrictions--instead of one user at a time having access to the digital resource while others were placed on a waitlist, they allowed for multiple users to access the same resource." Again, this is, technically, true. It is not a misstatement. But my god, do you not understand the difference? The one-to-one owned-to-loaned ratio is the entire basis of CDL! It's the thing that supposed to make it not a violation of copyright! It's the thing that supposed to make it different than digital piracy! Yes, allowing multiple loans of the same item was the "only difference," but that difference was critical!

Seventh, you say, "They were not freely distributing these books for anyone to keep forever; they were still "checked out" and had to be returned, and could not be redistributed to other people." Again, this is true, and not a misstatement. But because you have framed your entire post as correcting things that my original post "misunderstands and misrepresents...about the case," you are very clearly implying that I claimed that the IA was "freely distributing these books for anyone to keep forever." Or that this claim was in any way a part of my argument. And I didn't say that, in this post or any others. You are claiming to fight misinformation while actively misrepresenting my statements and my arguments.

Eighth, you state, "So, no, IA didn't steal anything. There was no piracy involved here." Again, this is just a lie. I believe that you want it to be true, but these are ultimately questions of law, that were decided by a court. They did steal, and they were engaged in pirating material.

Ninth, you state, "They employed the same exact methods that are standard in libraries to provide access to digital content." Again, this isn't true. See above.

Tenth, you state, "Legal challenges that threaten their rights in this area are threats to all libraries, because we all rely on the same legal justifications and interpretations of what is permissable for us to do."

So this is actually true. But it really, really pisses me off. Because when I said the IA was selfish, it is for exactly this reason. Libraries were engaging in versions of CDL carefully trying to push the boundaries of copyright to increase access. The IA decided to blow it all up in pursuit of their own interests and agenda, not the interests of libraries or the public. Their entire approach to their "open library" was, legally speaking, stupid and reckless, and their "national emergency library" was obviously illegal to anyone with any passing knowledge of the law. The IA knew that "Legal challenges that threaten their rights in this area are threats to all libraries," and they had full reason to know that their "emergency library" would create the perfect opportunity for publishers to sue them in a case that they would have no chance of winning, and they decided to damn the risk to libraries, damn the risk to the public, and do it anyway. The IA’s actions were a reckless attempt to push their policy agenda in a way that obviously violated copyright law, to an extent that a lawsuit was all but inevitable, and ensured a major loss for proponents of “Controlled Digital Lending” in the courts.

And for what.

Because that's the thing that really gets me about your response. I can deal with the lies. I can deal with the insults.

But you decide to end your piece by saying that the IA's post wasn't critical of library closures, and you completely decline to address any of my points about what patrons really needed, and what access really means.

Because fuck you. You have "a master's degree in library & information science" and have "been working in the field for over 10 years." You should know how to read a text. An article does not need to say, "this is an outrage"**** to express that they think something is outrageous. It's plenty good enough to spend two paragraphs using the most incendiary language possible to talk about a temporary situation that librarians on the ground were doing everything they could to mitigate.

****And by the by, if you look at my original post, you will note that I did correctly quote the article's statement that the library closures were a "tremendous and historic outage." I then read the rest of what the article said and understood it was saying the closures were outrageous, and attempted to use some ~clever wordplay~ to covey my understanding of that meaning. You many note I did not put quotes around the term "historic outrage." To the extent that I may have confused anyone however, I do apologize.

And more than that - I only worked in a library for a few years, and I don't know how many times I heard people getting mad at the librarians for "wasting my tax dollars." If you've been "working in the field," you know exactly the attitude and criticism that was deliberately being invoked by the language of that article.

And about those librarians on the ground - they were in fact doing a lot to address the needs of their communities. Including, by the way, getting them access to those books that were "locked away indefinitely behind closed doors." For example, here is a response to the practice of "curbside pickup" of library books that was published four days before the article I linked.

And you say you care about "the value of information access for everyone." I do to. And like I said in my original post, "access" doesn't just means that a file is digitized online somewhere so someone can theoretically check it out. People need to have access to computers or phones, access to the internet, a safe space to sit and read. They need to be able to find the information they are looking for. If you've ever actually worked in a library, you know that a large part of the library's services are helping people find what they are looking for. Because just because a book exists in a collection, doesn't mean a patron can find it.

And people who could use the IA's "emergency library"? They already had that. The only "unprecedented need" their actions addressed were making already-existing digital books more easily available to people who already had the means to access massive amounts of freely available information and entertainment. There were real and lasting harms of libraries having to temporarily close. None of those harms stemmed from someone having to wait a few extra months to check out The House on Mango Street.

If you care about libraries, librarians, and books, and if you believe in the value of information access for everyone, you should be furious at the IA's actions, not defending them.

And in the future, please spread accurate information and fact check before you decide to reply to a post.

I reread the IA's contemporaneous post justifying their "National Emergency Library", and one of the things that struck me is just how selfish it was.

(It was also full of falsehoods, ranging from exaggeration to outright lies, but that's another matter.)

While 2020 feels like it was several decades in the past, it was actually only a few years ago. And I remember March of 2020! I was there! And oh my god, is this post right in line with every other selfish, demanding asshole determined to make a global pandemic all about themselves!

First of all, there is the language of the post - it is a "tremendous and historic outage" that books are unavailable to patrons because libraries are closed for the pandemic. "Right now, today, there are 650 million books that tax-paying citizens have paid to access that are sitting on shelves in closed libraries, inaccessible to them."

Missing from this outrage is a recognition that, like. Librarians are people. They get sick, and die.

They did get sick, and died.

Libraries were closed not only to protect patrons and the public, but librarians too. Libraries were closed to protect people, human beings. Because generally speaking, even the most enthusiastic supporters of access to books and knowledge, prioritize lives over books.

The AI's post, however, reeks of an entitlement to things that *my* tax dollars paid for. Libraries and library collections aren't a public good. They're something *I* should be able to access anytime I want, damn the context or the consequences.

(Was it also a historic outrage when I had to wait several months to check out Nona the Ninth, because so many other people were checking it out?)

Second, as I said, I remember early 2020. And in spring and summer of 2020, there was more free content on the internet than before or since. So many people and so many institutions were bending over backwards to provide people with books and tv shows and music and podcasts and virtual tours and collections and just about anything that someone could figure out how to digitize. So many people were giving away books for free, or writing/recording new content to give away for free. I can't even remember how many times I heard or read someone telling their readers or listeners just to pay what they could, if they could. So many people and institutions were giving away so much, do so much, to provide access to knowledge and books and entertainment and information.

And in that moment, the IA decided to steal from people. When so many people, so many authors, were acting so selflessly, they decided that it wasn't good enough. And instead of giving away themselves, they decided to steal from authors and pat themselves on the back for "meet[ing] this unprecedented need," when they didn't even actually do anything themselves. Or maybe more accurately, the only thing they did was something irrelevant to the actual needs of the community, something they wanted to do anyway, something to try to use a pandemic as an excuse to advance their agenda.

Because third, there is zero concern for the population of patrons actually most impacted by the closure. The IA cares, to a fault, only about information being digitized.* But many people who use physical libraries, many of the people most impacted by their closure, are people who do not have access to the AI's so-called "open library." And people who could access digital books generally continued to have access to their library's e-book services, and to tons of other free content. The patrons who were actually in the most need are ignored as irrelevant.

*And I want to be clear - they care that information is digitized, not about digital access. "Access" means more than information being digitized and theoretically being able to be read.

It's so clear that IA didn't really care about the patrons of physical libraries. Instead, they saw a real problem, and instead of working toward any solutions, decided to use it as a prop to push their own agenda. (Again, while people were dying.)

It's just all so deeply selfish.

[carriesthewind]

"Still, IA argues that the third factor weighs neutrally because 'copying the entire work is necessary for Controlled Digital Lending.' Appellant’s Br. at 43 (cleaned up). As IA itself recognizes, this argument hinges entirely on its assumption that its use of the Works is transformative.7 But IA does not scan the Works in their entirety to achieve a transformative secondary purpose; it scans the Works in their entirety to substitute IA’s digital books for Publishers’ print books and eBooks." Hachette, No. 23-1260, at 42-43.

"7. IA faults the district court for improperly 'collaps[ing] the first and third factors.”'Appellant’s Br. at 44. But IA itself acknowledges―on the same page of its brief―the interrelatedness of the first and third factors in this case. See id." Id. at 42.

And that is how a court uses a citation to call your argument not only wrong, but disingenuous.

"But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library." Hachette Book Group, Inc. v. Internet Archive, No. 23-1260, at 31 (2nd Cir. Sept. 4, 2024).

[librationpoint]

These idiots were told that they were taking a huge risk when they started this "totally not illegal copying" program, did it anyways, and now everything else the IA does is at risk because of it.

"But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library." Hachette Book Group, Inc. v. Internet Archive, No. 23-1260, at 31 (2nd Cir. Sept. 4, 2024).