This has been playing out for many years. And it's all because Brewster Kahle decided that an overly broad interpretation of the Internet Archive's mission trumped the rights of authors and publishers, and the laws of the United States.
When IA was asked to stop CDL - many times - he continued. The National Writers Union tried to open a dialogue as early as 2010 but was ignored:
The Internet Archive says it would rather talk with writers individually than talk to the NWU or other writers’ organizations. But requests by NWU members to talk to or meet with the Internet Archive have been ignored or rebuffed.
When the requests to abandon CDL turned into demands, Kahle dug in his heels. When the inevitable lawsuits followed, and IA lost, he insisted that he was still in the right and plowed ahead with appeals.
He also opened a new front in the court of public opinion. In his blog posts and interviews with U.S. media, Kahle portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians (see https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st...). It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.
In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive.
I disagree with this assessment on many levels, but I think the most important challenge I can make is to the idea that Brewster Kahle is a rogue actor, who in some sense mis-interpreted the mission and strategy of the Internet Archive.
For those of you who are just learning that name from this lawsuit, here's his wikipedia page:
Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws.
We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle.
So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism.
So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas.
If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done.
So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist.
That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done.
But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".
> In his many interviews with U.S. media, he portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians. It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.
If IA had won, IA would be hailed as a cultural hero. They hit and they missed. Claiming Brewster Kahle is against "the people who work very hard to bring new books into being" is unfair. The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years, the copyright will probably be extended again.
This is why I stopped donating to IA, and I will not donate until they get new leadership.
I'm a very big supporter of a lot of what IA does, but I feel if I donate, my money is just going to fund more and more legal defenses because Brewster Kahle is being stubborn, and I'm afraid it's going to lead to the entire Archive being shut down.
I've mentioned this before, but there are lots of cases where IA will let you download full video games for the switch that are still being actively sold [1]. The same applies to a lot of movies and TV shows, available via torrents no less.
Before someone gives me a lecture about data harboring laws and fair use, I know that it is technically on the copyright holder to issue takedown requests for infringing material, but even still, I think they'd be smart to be a bit proactive about this. If I know that the Internet Archive is an easy place to get pirated material, then I'm quite confident that their staff does as well. If there's even one employee email that implies that they know about pirated content but didn't bother taking it down, then I think that's grounds for a lawsuit (though I'm not a lawyer).
Much as I respect him for founding IA, I think that Kahle needs to be replaced as a leader.
[1] I'm not going to link it here because I'm not sure HN's policy on potentially legally dubious material, but it is not hard to find.
So, this case was not about CDL (Controlled Digital Lending). It was about DL with the "C" removed. Specifically the IA's previous CDL program only lent out one electronic copy at a time per physical copy held, and this case is about a program at beginning of pandemic where they suspended these limits.
There could still be appeals in store for this case, but regardless of the outcome of this case, CDL could still be quite legal (and I think ought to be -- libraries ability to lend out books without publisher permission or license has been a huge gain for society, and I think must be able to continue in the electronic realm; and I think there are good legal arguments for it, on extension of first-sale doctrine to electronic realm and on fair use).
It was not helpful for the case of CDL to have this pretty bad ("uncontrolled digital lending"?) case decided first though, I agree this was not a very strategic move.
I wish people would stop saying they were doing CDL. CDL means being able to lend out a digital copy of a physical book in place of the physical book. The findings in the case showed that IA had lost complete control of the physical book so at that point they were simply breaking copyright. Add in that they steered people to their own used book store, and this case never had a chance.
A lot of people say this about Brewster Kahle but nobody else started the Internet Archive. Even on its own people could have fought it on copyright violation grounds.
The reality is that everyone thinks “I would have sold bitcoin at $70k if I bought it for $100” but anyone who would have sold would have sold at $1k. The only guys who actually ride it from $100 to $70k are the true believer types. And you’re not going to convince them that $70k is the top.
It’s the same way. He was always going to push the limit. That’s how we got IA.
Nah, I’m running an ArchiveTeam warrior. I’m team Brewster. Let’s go!
CDL is how physical libraries work: They buy a book and then lend it out multiple times to multiple people, on a one-in one-out basis, who then do not have to buy the book themselves. They even repair books to avoid purchasing new ones again. Do you think physical libraries harm the people who bring books into being?
Well what he did had some value. It showed me that somebody else in that position can share my beliefs about how the system should function.
"[IA] have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society" - to what extent has this had any effect on those services on WayBack machine? Does it not still collect and load a webpage today just as it did in 2015?
The downside loss was low here, the upside was worth it, even if the approach was unlikely to every work. It could lead to change in 100 years. That's important.
I'm not sure one should be so certain on this. I don't intend to suggestion it is an intentional action, but I do find that libraries are inherently at odds with how most of copyright otherwise works. There is a tension in this relationship and one that is likely pushing towards libraries becoming illegal for new forms of media. A common sentiment I've seen, expressed for different reasons by different people, is that if libraries didn't already exist, they would be illegal to create.
This is part of the larger role copyright plays in society, from being used as a legal hammer to handle AI issues (as in, when all you have is a hammer, everything looks like a nail) to newer digital media being sold in a way where one can't easily share what they own (if you even can call it owning at this point).
I think you misunderstand the situation. If you haven't read the lawsuit [1] I suggest you look through it.
Basically, there is an established practice for lending printed books: the library buys a book and lends it to patrons without permission from the copyright owner.
However, publishers believe that digital books are different from physical books and established practice doesn't apply to them; they believe that lending should be made at publishers' terms, to be specific:
- only "academic libraries" (chosen by publishers) may lend digital books
- they may lend them only to the members, for example, only students of the university, not to random people
- library must buy a special "library license", which might have arbitrary price and arbitrary terms
- the license has a limited term: sometimes it is 1-2 years, sometimes it is 26 lendings, after which the library must purchase a new license
- the library must use publishers-approved DRM which might not work on some devices
To enforce these rules publishers use DRM that prevents anyone from buying a digital book and lending it to other person (which was possible with digital books). So, in publishers view new technology means new rules and new opportunities.
The IA found a workaround: they bought physical books, scanned them and lent those digital copies instead of a physical book, provided that only one user can read the same book at the same time. They acted like a library but using remote access to a digital copy. The lender might read the book on IA's website enforcing the terms of use or download a DRM-protected PDF.
The lawsuit is about whether IA actions are legal or not (i.e. if digital books may be lent like physical books). Given that in future there will be less and less physical books, if publishers win, it will mean that libraries will not be able to lend contemporary books at the same terms and costs they lent physical books.
There are several complications: dubious partnerships by IA with libraries to increase the number of lent simultaneously copies; dubious decision to remove limits during COVID pandemic. However, there are facts that play in IA favour: there are precedents when making digital copies was considered legal (by Google Books), and there are a 17 US Code 108 [2] and 109 [3], which allows some exemptions from copyright for libraries and archives.
> It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.
Who's this asshole who hates books and authors and the law?
Evidently, reasonable people differ in opinion on this topic. It's fine that you disagree with what Kahle has done, so do I, but I would have found your comment more persuasive and interesting if you didn't reduce your opposition to a caricature.
We’ve been here before: you can’t punish someone into being your consumer. Someone who wants your product at the price you offer it will ultimately pay for it. Short sighted business decisions ultimately hurt the industry more than accepting the need to change your business model.
I also have a personal gripe with the Wayback Machine; there is absolutely no way to get something removed once they archive it (despite the data including accidentally leaked PII for example - which can cause actual harm to someone).
Not only do they ignore robots.txt, they ignored all emails sent to [email protected] from the actual domain in question which I owned, with a link to a URL on the domain asking them to remove it.
I can understand wanting to preserve some large website's article that is of public interest but this is just malicious / dangerous. It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content.
Morally justified or not, it's really hard to feel bad for someone who stuck their dick in a bear trap when when we all stood there screaming "don't stick your dick in that bear trap" so loudly blood shot from our eye sockets. The Internet Archive doesn't deserve to go down like this, and regardless of his long history of fine efforts, it doesn't deserve to be run by that God damned idiot.
I agree CDL was a mistake. The IA should have never embraced DRM and shared as much without it as possible, silently archiving the rest for saner future generations that don't let so-called IP-owners restrict their free speech.
Those supporting IA's position range from the American Library Association (the world's oldest & largest library advocacy group), to individual libraries of all kinds, to expert IP law academics, to public-interest advocates like the Center for Democracy & Technology or Public Knowledge, to fellow open-culture organizations like Wikipedia, Creative Commons, & Project Gutenberg. Also: lots of book authors, including those with commercial success & titles inside the IA's lending program.
The IA was in the leading position, sure – but taking the arrows for a very large group of like-minded organizations sharing a stance against copyright maximalism. Personalizing it as one man's radical crusade is odd.
>asked to stop… tried to open a dialogue
Saying no to the copyright maximalists, even through their claims of absolute control & threatened or actual lawsuits, has been essential in establishing the actual settled law around copyright.
What sort of 'dialogue' can be had when the sides have incompatible views of the law: one believing in a permissionless right to do an exact something (supported by reasoning & precedent) and another asserting an absolute right to prohibit that exact same thing (supported by other reasoning & precedent)? Each side needs to enact their beliefs then resolve it in the courts.
HathiTrust - a major consortium of university libraries – was the named defendent in an earlier lawsuit by some of the same copyrightholder interests with regard to Google Books scanning. (It's also an ally of the Internet Archive in this fight.) Should HathiTrust have rolled over when "asked to stop" scanning by rightsholders? Absolutely not: they won in court & on appeal.
If Sony hadn't appealed the Betamax decision to the Supreme Court, VCRs & everything since that let people record their own copies of TV programs could've been "illegal". A mere 'dialogue' with TV broadcasters or moviemaker trade associations couldn't have done anything: the issues had to be ruled on by legal authorities.
>In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive.
I agree that the overheated rhetoric from both the plaintiffs (about giant but never-proven sdamages) and defendants (about how central these principles are to IA) may have created that impression in some coverage – but the idea this was ever existential for IA, in legal costs or potential damages, is pure paranoid fantasy.
As a non-profit, the IA files detailed form 990s with the IRS showing income & expenses. I challenge you to find any hint of legal costs changing other operations in the years since the lawsuit was filed (2020) and appeals launched.
I suspect, but have no inside info, that much of the costs were borne by other advocacy & legal organizations/donors that wanted to pursue a ruling on these particular essential issues. That is: this battle was fought with resources targeted for this program and these legal principles, not resources diverted from other programs.
As part of private settlement with the plaintiffs in 2023 – not any court monetary judgment against it – the IA agreed to make some undisclosed payment but ALSO had permission from the plaintiffs for IA to continue to pursue appeals (like the one just ruled-upon) on the issues important to IA, at no risk of further damages.
That's hardly the "scorched earth" plaintiff behavior implied by some hyped coverage imagining an IA bankruptcy, or other threats to its ability "to survive".
This was always a dispute on some copyright principles; it will be a loss to the public if IA's vision of format-shifted digital lending is ultimately ruled illegal, but no impact to IA's other long-established programs.
Finally: this may not be the final chapter & ruling on these issues. Sony had to appeal all the way to the Supreme Court before getting the Betamax ruling in 1984. Google had to appeal all the way to the Supreme Court before getting a ruling that API reimplementation could be fair use in 2021. I don't know if IA will judge it as worthwhile to appeal. But they might! And before those other historic final appeals, the preceding judgements seemed pretty definitive and bleak for the ultimate victors.
It echos of the debacle at Mozilla. A critical nonprofit captured by an egomaniac ceo who hijacks the organization for grift or their personal crusade.
Very much not a surprise. I think the Internet Archive is providing an invaluable service to humanity in preserving works that would otherwise be lost to time. it is one of the crown jewels of the Internet, doing a job that nobody else is willing to do. But at the same time I know the courts side with publishers pretty much every time and copyright law being such as it is they're totally screwed. The only real question is how many trillions dollars will the judgment be. Preserving history is at odds with the profit motive, and lawmakers care a lot more about the latter than the former.
But, beyond this ruling, could Internet Archive just scan the books, store the data and release it to the public at a later time? I am just thinking about the preservation part in your comment.
This struck me as significant (buried in the opinion's last footnote):
"IA makes a final argument that, even if its Open Libraries project did not qualify as a fair use, we should restrict the injunction to the Open Libraries project and allow IA to continue CDL for books that IA itself owns. In support of that argument, IA argues that the fourth factor analysis would be more favorable if CDL were limited to IA’s own books. In our view, the fair use analysis would not be substantially different if limited to IA’s CDL of the books it owns, and the fourth factor still would count against fair use. So we decline IA’s invitation to narrow the scope of our holding or of the district court’s injunction."
In other words, even if one purchases a print copy of the book, fair use would not allow them to lend a digital copy of the book to one person at a time. Why the court concludes that that "would not be substantially different" is unclear from just this footnote.
I still cannot imagine how IA thought that giving unrestricted access to copyrighted books was a good idea. It seemed inevitable that someone would sue them over it.
Honestly, I think that IA's ambivalence towards the use of their website for outright piracy might lead to their collapse, and that's a shame. The Archive can be a really wonderful tool, though I'm not sure that its current management really knows what they're doing.
IA was trying to act like a library: they bought physical books and lent digital scans of them, ensuring that only one user can read one book at a time. So IA's position is that you can treat digital books like physical books, i.e. re-sell them or lend. The only difference is that they don't require you to come to library in person.
Publishers position is that digital books are different from physical; you have no right to re-sell or lend it without publisher's permission. This is what this case is about.
Am I to understand that it’s legal and okay for LLM providers to profit massively from training commercial models on copyrighted works, without the rights holders’ permission - but illegal, and unacceptable, for private individuals to access a digital library?
Things will get worse before they're get better, but ultimately the publishers will pay dearly for this.
First, the IA should move to a more favorable copyright jurisdiction to preserve the collection.
Second, there's no point fighting the copyright lobby, especially so in the US. We need to build an alternative access to knowledge that bypasses the copyright/ownership of knowledge paradigm.
If I can relate this to movies [1], it might be illuminating:
Watching a movie, you normally get a "home viewing" license. That does not give you the right to show it at your business (even if you don't charge money and only 10 people come).
There's also a Public Performance Rights (PPR) license, and I always had to get PPR's because Google lawyers would shut us down otherwise. PPR costs considerably more than a home viewing license.
When I negotiated PPR's, they always asked three questions:
1. How many in the audience?
2. Are you charging money?
3. Are you advertising this outside Google?
If I were a movie theater taking $15 a head from anyone who showed up, my PPR would cost a lot more.
It seems that what IA wants is to use home viewing rights as though they had PPR's.
"No, they don't!" you retort? You might be right, but asking AG to design a license for them would be a lot more friendly than saying, "Hey, this is fair to you, take it!"
Edit: one thing I forgot to add: lawyers always prefer to start with their own draft. We can hypothesize a conversation between IA and AG (which never actually happened):
[IA] Hey, can we use your books? Write us a new agreement.
[AG] OK, that'll take a few months for a first draft. Then we'll negotiate.
On one hand: the court opinion. On the other, a breaking news tweet from Publisher's Weekly with hundreds of tedious low effort takes ready to melt precious brain cells. Please read the opinion.
> This appeal presents the following question: Is it “fair use” for a
nonprofit organization to scan copyright-protected print books in their
entirety, and distribute those digital copies online, in full, for free, subject to
a one-to-one owned-to-loaned ratio between its print copies and the digital
copies it makes available at any given time, all without authorization from
the copyright-holding publishers or authors? Applying the relevant
provisions of the Copyright Act as well as binding Supreme Court and
Second Circuit precedent, we conclude the answer is no.
When the conclusion is so obviously incorrect, we should examine the underlying precedent that leads us to such an erroneous conclusion. This precedent should give us pause. They're restricting a NONPROFITs to distribute legally purchased print media in a way that the publishers don't want.
And this seems to be the justification:
> In addition to selling traditional print books, Publishers collectively invest
millions of dollars in developing new formats and markets suited for the digital
age, including the eBook market.
> Here, by contrast, IA’s Free Digital Library offers few efficiencies beyond
those already offered by Publishers’ own eBooks. IA argues that its use is more
efficient because it “replace[s] the burdens of physical transportation with the
benefits of digital technology,” but this ignores the fact that IA’s digital books
compete directly with Publishers’ eBooks―works derivative of the original print
books.
This is an assault on free-use, libraries, and collective sharing of knowledge. If I buy a physical book, I can give it to anyone I want because the laws of yore did not see societal benefit to prohibiting this. I'm quite certain that these companies would prohibit the practice, if they could. The law is the only thing protecting the commons.
The argument here is essentially, "these companies are spending millions to distribute their IP digitally, so we should shield them from Open standards that would negatively impact their profits". "Your work isn't transformative, because we've already done a similar transformation". They're wielding a proprietary implementation as a hammer to crush open knowledge. The internet should be a tool to facilitate knowledge-sharing for the betterment of our entire species, not a weapon to stifle knowledge for the sake of corporate profits.
I hope this doesn't bankrupt the Internet Archive (either the legal fees or the case - I don't recall what they're asking for). It would be bad if the Wayback Machine, the biggest internet archivist around, went under, and also all the books, software, et cetera that the Archive hosts. I wonder if there's any way to archive all of the Wayback Machine (82.3 petabytes), or, better yet, all of the Internet Archive (which is, by my count, around 120 petabytes?) Who would have the capability/interest in doing so, ideally without charge?
1. The court rejected IA's fair use defense, finding that its digital lending practices merely substitute for and do not transform the original copyrighted works.
2. IA's activities are likely to cause significant market harm to publishers' e-book and digital licensing businesses, which outweighs any public benefits of expanded access.
3. Allowing widespread unauthorized digital copying and distribution, even by a nonprofit, would undermine the fundamental purpose of copyright law to incentivize creative expression.
4. The ruling highlights the tension between expanding public access to knowledge and preserving authors' and publishers' exclusive rights over their works, which copyright law is meant to balance.
5. The decision sets an important precedent limiting the ability of digital libraries and archives to widely distribute copyrighted works online without permission, even if the intent is to increase public access.
How do AI startups get away with copyright violations? To train AI model they need to download copyrighted works (images, videos, music) into their AI cloud, thus creating a "copy" under US Copyright law. Isn't this outright illegal?
There are even datasets, collections of URLs like "common crawl". You cannot legally download them and use without breaking the law.
They cannot get away with "fair use" because they are harming creators income by making generative AI using their works.
But as there are big money I guess the government will make some exception for them.
>Four major book publishers again thwarted the online repository’s defense that its one-to-one lending practices mirrored those of traditional libraries
How does it not? I don't get it... why are physical libraries in the clear if it's still a 1:1 borrow?
This is why I stockpile manuals and other guide books, and pirate as much as possible. The publishers don't really care about anything other than cash, even on media they haven't published or updated in decades. I will gladly buy self published and, small run media new, but everything else is used/second-hand. The abuse only stops when you set boundaries.
This article doesn't mention controlled digital lending at all, what the entire lawsuit was about, and instead spends a significant chunk of the article on the national emergency library, a program that got like a one sentence mention in the judgment.
At this point, the Internet Archive should consider simply moving to another jurisdiction. Decisions like this are a shame, because they hinder a proper way to deal with piracy.
Physical libraries compete with book sales too, but of course libraries are lawful. Why should digital libraries be treated differently? Because there are ways to circumvent DRM on Internet Archive books? Well, there are ways to bypass DRM on sold ebooks, too.
Perhaps IA’s greatest mistake was to allow unrestricted lending during the pandemic. If it had kept its original mission, maybe things would not have ended up like this.
[+] [-] dang|1 year ago|reply
https://www.theverge.com/2024/9/4/24235958/internet-archive-...
https://www.wired.com/story/internet-archive-loses-hachette-...
https://finance.yahoo.com/news/major-book-publishers-defeat-...
https://news.bloomberglaw.com/ip-law/internet-archive-digita...
[+] [-] ilamont|1 year ago|reply
When IA was asked to stop CDL - many times - he continued. The National Writers Union tried to open a dialogue as early as 2010 but was ignored:
The Internet Archive says it would rather talk with writers individually than talk to the NWU or other writers’ organizations. But requests by NWU members to talk to or meet with the Internet Archive have been ignored or rebuffed.
https://nwu.org/nwu-denounces-cdl/
When the requests to abandon CDL turned into demands, Kahle dug in his heels. When the inevitable lawsuits followed, and IA lost, he insisted that he was still in the right and plowed ahead with appeals.
He also opened a new front in the court of public opinion. In his blog posts and interviews with U.S. media, Kahle portrays the court cases and legal judgements as a crusade against the Internet Archive and all librarians (see https://blog.archive.org/2023/12/15/brewster-kahle-appeal-st...). It's not. It's the logical outcome of one man's seemingly fanatical conviction against the law and the people who work very hard to bring new books into being.
In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive.
[+] [-] dannyobrien|1 year ago|reply
For those of you who are just learning that name from this lawsuit, here's his wikipedia page:
https://en.wikipedia.org/wiki/Brewster_Kahle
Kahle founded the Archive in the nineties, in the midst of the fairly determined attempts at that time to either delay or even re-engineer the early Internet to be more respectful of existing intellectual property and decency laws.
We inherit a searchable, saveable web, because of the work done then to establish the norm that the Internet itself should exist, and that open digital archives can exist, legally. Many many people worked on the first issue. But Kahle played a far far larger role in the second battle.
So these "noble aspects" of "real value to society", as you rightly describe them, came from fighting for them -- by rolling them into existence in the face of opposition and skepticism.
So I understand the concern that this court decision threatens the future of some forms of archiving, digital preservation and librarianship. But the existing norms and repositories this threatens exist because people established those norms and archiving projects before now, in living memory, even in the face of threats and lectures about precedent and worries about legal gray areas.
If you want to defend and protect "the many noble aspects of the archive", you have to remember that thirty years ago, those were imagined as impossible, impractical, and (whisper it) probably illegal. In both cases, it was Kahle's vision and approach that was -- apparently -- the only way it was going to get done.
So I profoundly disagree that this is somehow a wild chase out of the safe and respectable grounds of the Archive's core mission. The Archive's core mission got to be respectable because Kahle chased the wild idea, and established its right to exist.
That may sound like I'm overstating Kahle's role, and/or overstating the initially radical, now widely-respected nature of pretty much everything the Archive has done.
But if it's not the case -- why is there only one Internet Archive? Why didn't other people, other national archives, other commercial concerns or non-profits join in this work? Why did only Kahle do it, and why was it only Kahle coming up with CDL as an idea to prevent the death of first sale, of lending a book, of the idea of a free library in a digital future? There should be more ideas, more Internet Archives, of course, for safety's sake. But absolutely nothing about Kahle's mission to create a library of and on the Internet was ever "safe".
[+] [-] teruakohatu|1 year ago|reply
If IA had won, IA would be hailed as a cultural hero. They hit and they missed. Claiming Brewster Kahle is against "the people who work very hard to bring new books into being" is unfair. The copyright goalposts have moved so far past where they were originally, the people who work very hard can be dead for decades and their works still in copyright, and by the time they are dead for 70 years, the copyright will probably be extended again.
[+] [-] tombert|1 year ago|reply
I'm a very big supporter of a lot of what IA does, but I feel if I donate, my money is just going to fund more and more legal defenses because Brewster Kahle is being stubborn, and I'm afraid it's going to lead to the entire Archive being shut down.
I've mentioned this before, but there are lots of cases where IA will let you download full video games for the switch that are still being actively sold [1]. The same applies to a lot of movies and TV shows, available via torrents no less.
Before someone gives me a lecture about data harboring laws and fair use, I know that it is technically on the copyright holder to issue takedown requests for infringing material, but even still, I think they'd be smart to be a bit proactive about this. If I know that the Internet Archive is an easy place to get pirated material, then I'm quite confident that their staff does as well. If there's even one employee email that implies that they know about pirated content but didn't bother taking it down, then I think that's grounds for a lawsuit (though I'm not a lawyer).
Much as I respect him for founding IA, I think that Kahle needs to be replaced as a leader.
[1] I'm not going to link it here because I'm not sure HN's policy on potentially legally dubious material, but it is not hard to find.
[+] [-] jrochkind1|1 year ago|reply
There could still be appeals in store for this case, but regardless of the outcome of this case, CDL could still be quite legal (and I think ought to be -- libraries ability to lend out books without publisher permission or license has been a huge gain for society, and I think must be able to continue in the electronic realm; and I think there are good legal arguments for it, on extension of first-sale doctrine to electronic realm and on fair use).
It was not helpful for the case of CDL to have this pretty bad ("uncontrolled digital lending"?) case decided first though, I agree this was not a very strategic move.
[+] [-] matwood|1 year ago|reply
[+] [-] renewiltord|1 year ago|reply
The reality is that everyone thinks “I would have sold bitcoin at $70k if I bought it for $100” but anyone who would have sold would have sold at $1k. The only guys who actually ride it from $100 to $70k are the true believer types. And you’re not going to convince them that $70k is the top.
It’s the same way. He was always going to push the limit. That’s how we got IA.
Nah, I’m running an ArchiveTeam warrior. I’m team Brewster. Let’s go!
[+] [-] msla|1 year ago|reply
[+] [-] authorfly|1 year ago|reply
"[IA] have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society" - to what extent has this had any effect on those services on WayBack machine? Does it not still collect and load a webpage today just as it did in 2015?
The downside loss was low here, the upside was worth it, even if the approach was unlikely to every work. It could lead to change in 100 years. That's important.
[+] [-] SkyBelow|1 year ago|reply
I'm not sure one should be so certain on this. I don't intend to suggestion it is an intentional action, but I do find that libraries are inherently at odds with how most of copyright otherwise works. There is a tension in this relationship and one that is likely pushing towards libraries becoming illegal for new forms of media. A common sentiment I've seen, expressed for different reasons by different people, is that if libraries didn't already exist, they would be illegal to create.
This is part of the larger role copyright plays in society, from being used as a legal hammer to handle AI issues (as in, when all you have is a hammer, everything looks like a nail) to newer digital media being sold in a way where one can't easily share what they own (if you even can call it owning at this point).
[+] [-] codedokode|1 year ago|reply
Basically, there is an established practice for lending printed books: the library buys a book and lends it to patrons without permission from the copyright owner.
However, publishers believe that digital books are different from physical books and established practice doesn't apply to them; they believe that lending should be made at publishers' terms, to be specific:
- only "academic libraries" (chosen by publishers) may lend digital books
- they may lend them only to the members, for example, only students of the university, not to random people
- library must buy a special "library license", which might have arbitrary price and arbitrary terms
- the license has a limited term: sometimes it is 1-2 years, sometimes it is 26 lendings, after which the library must purchase a new license
- the library must use publishers-approved DRM which might not work on some devices
To enforce these rules publishers use DRM that prevents anyone from buying a digital book and lending it to other person (which was possible with digital books). So, in publishers view new technology means new rules and new opportunities.
The IA found a workaround: they bought physical books, scanned them and lent those digital copies instead of a physical book, provided that only one user can read the same book at the same time. They acted like a library but using remote access to a digital copy. The lender might read the book on IA's website enforcing the terms of use or download a DRM-protected PDF.
The lawsuit is about whether IA actions are legal or not (i.e. if digital books may be lent like physical books). Given that in future there will be less and less physical books, if publishers win, it will mean that libraries will not be able to lend contemporary books at the same terms and costs they lent physical books.
There are several complications: dubious partnerships by IA with libraries to increase the number of lent simultaneously copies; dubious decision to remove limits during COVID pandemic. However, there are facts that play in IA favour: there are precedents when making digital copies was considered legal (by Google Books), and there are a 17 US Code 108 [2] and 109 [3], which allows some exemptions from copyright for libraries and archives.
[1] https://www.documentcloud.org/documents/23723923-hachette-v-...
[2] https://www.law.cornell.edu/uscode/text/17/108
[3] https://www.law.cornell.edu/uscode/text/17/109
[+] [-] Y_Y|1 year ago|reply
Who's this asshole who hates books and authors and the law?
Evidently, reasonable people differ in opinion on this topic. It's fine that you disagree with what Kahle has done, so do I, but I would have found your comment more persuasive and interesting if you didn't reduce your opposition to a caricature.
[+] [-] ekianjo|1 year ago|reply
the ever expanding rights that nobody voted for and that are passed by and for lobbies?
[+] [-] Sysreq2|1 year ago|reply
[+] [-] gigel82|1 year ago|reply
Not only do they ignore robots.txt, they ignored all emails sent to [email protected] from the actual domain in question which I owned, with a link to a URL on the domain asking them to remove it.
I can understand wanting to preserve some large website's article that is of public interest but this is just malicious / dangerous. It took me 2 years and working with a lawyer friend to draft a DMCA request to finally have them remove the content.
[+] [-] naikrovek|1 year ago|reply
[+] [-] causality0|1 year ago|reply
[+] [-] fngjdflmdflg|1 year ago|reply
[+] [-] account42|1 year ago|reply
[+] [-] kylebenzle|1 year ago|reply
[+] [-] gojomo|1 year ago|reply
>one man's seemingly fanatical conviction against the law
Reviewing the large number of amicus briefs on the Archive's side, from the get-go through appeals, refutes the idea this was a solitary crusade: https://blog.archive.org/2023/12/29/friend-of-the-court-brie...
Those supporting IA's position range from the American Library Association (the world's oldest & largest library advocacy group), to individual libraries of all kinds, to expert IP law academics, to public-interest advocates like the Center for Democracy & Technology or Public Knowledge, to fellow open-culture organizations like Wikipedia, Creative Commons, & Project Gutenberg. Also: lots of book authors, including those with commercial success & titles inside the IA's lending program.
The IA was in the leading position, sure – but taking the arrows for a very large group of like-minded organizations sharing a stance against copyright maximalism. Personalizing it as one man's radical crusade is odd.
>asked to stop… tried to open a dialogue
Saying no to the copyright maximalists, even through their claims of absolute control & threatened or actual lawsuits, has been essential in establishing the actual settled law around copyright.
What sort of 'dialogue' can be had when the sides have incompatible views of the law: one believing in a permissionless right to do an exact something (supported by reasoning & precedent) and another asserting an absolute right to prohibit that exact same thing (supported by other reasoning & precedent)? Each side needs to enact their beliefs then resolve it in the courts.
HathiTrust - a major consortium of university libraries – was the named defendent in an earlier lawsuit by some of the same copyrightholder interests with regard to Google Books scanning. (It's also an ally of the Internet Archive in this fight.) Should HathiTrust have rolled over when "asked to stop" scanning by rightsholders? Absolutely not: they won in court & on appeal.
If Sony hadn't appealed the Betamax decision to the Supreme Court, VCRs & everything since that let people record their own copies of TV programs could've been "illegal". A mere 'dialogue' with TV broadcasters or moviemaker trade associations couldn't have done anything: the issues had to be ruled on by legal authorities.
>In addition, there has been real collateral damage to the many noble aspects of the Internet Archive. Legal fees and judgements have diverted resources away from the Wayback Machine, the library of public domain works, and other IA programs that provide real value to society. I truly hope the organization can survive.
I agree that the overheated rhetoric from both the plaintiffs (about giant but never-proven sdamages) and defendants (about how central these principles are to IA) may have created that impression in some coverage – but the idea this was ever existential for IA, in legal costs or potential damages, is pure paranoid fantasy.
As a non-profit, the IA files detailed form 990s with the IRS showing income & expenses. I challenge you to find any hint of legal costs changing other operations in the years since the lawsuit was filed (2020) and appeals launched.
I suspect, but have no inside info, that much of the costs were borne by other advocacy & legal organizations/donors that wanted to pursue a ruling on these particular essential issues. That is: this battle was fought with resources targeted for this program and these legal principles, not resources diverted from other programs.
As part of private settlement with the plaintiffs in 2023 – not any court monetary judgment against it – the IA agreed to make some undisclosed payment but ALSO had permission from the plaintiffs for IA to continue to pursue appeals (like the one just ruled-upon) on the issues important to IA, at no risk of further damages.
That's hardly the "scorched earth" plaintiff behavior implied by some hyped coverage imagining an IA bankruptcy, or other threats to its ability "to survive".
This was always a dispute on some copyright principles; it will be a loss to the public if IA's vision of format-shifted digital lending is ultimately ruled illegal, but no impact to IA's other long-established programs.
Finally: this may not be the final chapter & ruling on these issues. Sony had to appeal all the way to the Supreme Court before getting the Betamax ruling in 1984. Google had to appeal all the way to the Supreme Court before getting a ruling that API reimplementation could be fair use in 2021. I don't know if IA will judge it as worthwhile to appeal. But they might! And before those other historic final appeals, the preceding judgements seemed pretty definitive and bleak for the ultimate victors.
[+] [-] JumpCrisscross|1 year ago|reply
Maybe it shouldn’t. There is value in asking if there is a better home for those projects.
[+] [-] istanbullu|1 year ago|reply
[+] [-] protocolture|1 year ago|reply
[+] [-] EVa5I7bHFq9mnYK|1 year ago|reply
[+] [-] tiahura|1 year ago|reply
[+] [-] davexunit|1 year ago|reply
Oh no, won't someone think of the rights of the poor poor publishers :(((
[+] [-] doctorpangloss|1 year ago|reply
[deleted]
[+] [-] jandrese|1 year ago|reply
[+] [-] ricardo81|1 year ago|reply
[+] [-] wslh|1 year ago|reply
[+] [-] pcaharrier|1 year ago|reply
"IA makes a final argument that, even if its Open Libraries project did not qualify as a fair use, we should restrict the injunction to the Open Libraries project and allow IA to continue CDL for books that IA itself owns. In support of that argument, IA argues that the fourth factor analysis would be more favorable if CDL were limited to IA’s own books. In our view, the fair use analysis would not be substantially different if limited to IA’s CDL of the books it owns, and the fourth factor still would count against fair use. So we decline IA’s invitation to narrow the scope of our holding or of the district court’s injunction."
In other words, even if one purchases a print copy of the book, fair use would not allow them to lend a digital copy of the book to one person at a time. Why the court concludes that that "would not be substantially different" is unclear from just this footnote.
[+] [-] tombert|1 year ago|reply
Honestly, I think that IA's ambivalence towards the use of their website for outright piracy might lead to their collapse, and that's a shame. The Archive can be a really wonderful tool, though I'm not sure that its current management really knows what they're doing.
[+] [-] codedokode|1 year ago|reply
Publishers position is that digital books are different from physical; you have no right to re-sell or lend it without publisher's permission. This is what this case is about.
[+] [-] el_jay|1 year ago|reply
[+] [-] hilbert42|1 year ago|reply
First, the IA should move to a more favorable copyright jurisdiction to preserve the collection.
Second, there's no point fighting the copyright lobby, especially so in the US. We need to build an alternative access to knowledge that bypasses the copyright/ownership of knowledge paradigm.
[+] [-] AlbertCory|1 year ago|reply
Watching a movie, you normally get a "home viewing" license. That does not give you the right to show it at your business (even if you don't charge money and only 10 people come).
There's also a Public Performance Rights (PPR) license, and I always had to get PPR's because Google lawyers would shut us down otherwise. PPR costs considerably more than a home viewing license.
When I negotiated PPR's, they always asked three questions:
1. How many in the audience?
2. Are you charging money?
3. Are you advertising this outside Google?
If I were a movie theater taking $15 a head from anyone who showed up, my PPR would cost a lot more.
It seems that what IA wants is to use home viewing rights as though they had PPR's.
"No, they don't!" you retort? You might be right, but asking AG to design a license for them would be a lot more friendly than saying, "Hey, this is fair to you, take it!"
Edit: one thing I forgot to add: lawyers always prefer to start with their own draft. We can hypothesize a conversation between IA and AG (which never actually happened):
[IA] Hey, can we use your books? Write us a new agreement.
[AG] OK, that'll take a few months for a first draft. Then we'll negotiate.
[IA] OMG, we don't have all that time.
[AG] Okey-dokey, we'll see you in court.
[1] https://albertcory50.substack.com/p/culture-at-google-part-o...
[+] [-] warmcompress|1 year ago|reply
On one hand: the court opinion. On the other, a breaking news tweet from Publisher's Weekly with hundreds of tedious low effort takes ready to melt precious brain cells. Please read the opinion.
[+] [-] ChrisArchitect|1 year ago|reply
[+] [-] Atreiden|1 year ago|reply
When the conclusion is so obviously incorrect, we should examine the underlying precedent that leads us to such an erroneous conclusion. This precedent should give us pause. They're restricting a NONPROFITs to distribute legally purchased print media in a way that the publishers don't want.
And this seems to be the justification:
> In addition to selling traditional print books, Publishers collectively invest millions of dollars in developing new formats and markets suited for the digital age, including the eBook market.
> Here, by contrast, IA’s Free Digital Library offers few efficiencies beyond those already offered by Publishers’ own eBooks. IA argues that its use is more efficient because it “replace[s] the burdens of physical transportation with the benefits of digital technology,” but this ignores the fact that IA’s digital books compete directly with Publishers’ eBooks―works derivative of the original print books.
This is an assault on free-use, libraries, and collective sharing of knowledge. If I buy a physical book, I can give it to anyone I want because the laws of yore did not see societal benefit to prohibiting this. I'm quite certain that these companies would prohibit the practice, if they could. The law is the only thing protecting the commons.
The argument here is essentially, "these companies are spending millions to distribute their IP digitally, so we should shield them from Open standards that would negatively impact their profits". "Your work isn't transformative, because we've already done a similar transformation". They're wielding a proprietary implementation as a hammer to crush open knowledge. The internet should be a tool to facilitate knowledge-sharing for the betterment of our entire species, not a weapon to stifle knowledge for the sake of corporate profits.
[+] [-] Yawrehto|1 year ago|reply
[+] [-] jamesholden|1 year ago|reply
1. The court rejected IA's fair use defense, finding that its digital lending practices merely substitute for and do not transform the original copyrighted works.
2. IA's activities are likely to cause significant market harm to publishers' e-book and digital licensing businesses, which outweighs any public benefits of expanded access.
3. Allowing widespread unauthorized digital copying and distribution, even by a nonprofit, would undermine the fundamental purpose of copyright law to incentivize creative expression.
4. The ruling highlights the tension between expanding public access to knowledge and preserving authors' and publishers' exclusive rights over their works, which copyright law is meant to balance.
5. The decision sets an important precedent limiting the ability of digital libraries and archives to widely distribute copyrighted works online without permission, even if the intent is to increase public access.
-Kagi Sum
[+] [-] Devasta|1 year ago|reply
Seems like this is the publishers planned approach going forward, nonstop lawsuits to henpeck the IA to death.
[+] [-] codedokode|1 year ago|reply
There are even datasets, collections of URLs like "common crawl". You cannot legally download them and use without breaking the law.
They cannot get away with "fair use" because they are harming creators income by making generative AI using their works.
But as there are big money I guess the government will make some exception for them.
[+] [-] preciousoo|1 year ago|reply
[+] [-] ranger_danger|1 year ago|reply
How does it not? I don't get it... why are physical libraries in the clear if it's still a 1:1 borrow?
[+] [-] miah_|1 year ago|reply
[+] [-] boomboomsubban|1 year ago|reply
[+] [-] thimabi|1 year ago|reply
Physical libraries compete with book sales too, but of course libraries are lawful. Why should digital libraries be treated differently? Because there are ways to circumvent DRM on Internet Archive books? Well, there are ways to bypass DRM on sold ebooks, too.
Perhaps IA’s greatest mistake was to allow unrestricted lending during the pandemic. If it had kept its original mission, maybe things would not have ended up like this.