#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?