A federal judge has ruled against the Internet Archive in Hachette v. Internet Archive, a lawsuit brought against it by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library.
Judge John G. Koeltl decided that the Internet Archive had done nothing more than create “derivative works,” and so would have needed authorization from the books’ copyright holders — the publishers — before lending them out through its National Emergency Library program.
As much as we all want the Internet Archive to be right – and morally, they are – copyright law, as outdated, dumb, and counterproductive as it is, was pretty clear in this case. Sadly.
I dislike the way society has been relying on totally arbitrary “fair use” rulings rather than fixing the law. The problem when the legislation doesn’t specifically spell things out is that the execution is inconsistent and sometimes even contradictory with other cases. Ideally we’re all supposed to be equal under the law, but in practice it’s often untrue. Who you are and who’s judging you matters a great deal, sometimes more than what legislators intended. And this gets exacerbated in unfair fair use cases.
Obviously the law needs to catch up to technology. IMHO one should be able to replicate a library online without additional licensing. However this has long been a no-no and this is exactly why netflix’s DVD catalog was so much more broad that it’s streaming catalog. The law permits them to rent out physical DVDs without a license, but it does not permit them to do the same thing via streaming platform, even if the end result is identical. Consequently content today has become highly fragmented & exclusive, which sucks for us consumers. Things didn’t have to be this way. These laws, that were initially created in the interest of public good, have become twisted and corrupted thanks to lobbying from mickey mouse and friends. And with them at the helm I don’t expect reprieval.
Alfman,
While I agree in general that our laws are not really up to date, in this specific instance the Internet Archive was stretching the boundaries a lot.
If I read correctly, they have scanned, and made available printed content, which I would generally agree with for a library (I think Google also did something along the lines).
But, again, if I read correctly, they were loaning out unlimited digital copies at the same time. If, instead they offered 1:1 digital copies for each physical item, I think they would have had a better case.
Anyway, we should make “medium shifting” legal (which is the core issue here, and it seems to be a bit gray atm), and have some rules for “abandoneware” (again related to IA). If the owners are not willing to make something available, or they can’t be found in the first place, there should be a limit to how long they can “hide” the content. (I guess there is also the issue of personal freedom. Say I wrote some code, but don’t want to share. Current copyright allows me to withhold it from the world for about 100 years. It should not be zero, but probably something in between).
sukru,
Page 6 of the ruling lists archive.org’s CDL program only allows 1:1 book lending.
Page 9 of the ruling describes archive.org’s National Emergency Library program starting in march through june of 2020, which increased the limit to 10 patrons being able to borrow an instance of a book.
I’m in agreement with you that the NEL program was abusive and very poorly conceived by internet archive. CDL was a common sense approach, but the courts arguments don’t even make this distinction at all, the judge explicitly objected to any ebook reproduction without a license, saying it’s not “fair use”. Unfortunately the judge did not give any leeway to the idea that ebooks can be loaned on a 1:1 basis.
The damned document viewer in the article won’t let me copy text (ironic right?), but see page 30 to see where the judge states that IA and partner libraries can only lend print copies. This goes onto page 31 and 32 to say that IA’s promise not to loan lawfully acquired print copies to simultaneous users in the future is irrelevant even if full enforcement could be guaranteed.
Frankly this leaves all libraries in legal jeopardy if they don’t have a license to distribute ebooks regardless of whether they’re legitimately backed with physical copies. It’s the same scenario that netflix found itself in. This fragmentation was bad for video consumers, and I think it will be bad for libraries and maybe schools as well. If a publisher wants to act like disney and withhold licenses to libraries so they won’t compete with it’s own online services, well this ruling gives publishers the power.
Different judges would have ruled differently, especially one who better understands the public interests at stake, but this is the judge we got and unless it’s overturned it could shape ebooks for decades to come.
Thanks for finding that information.
Yes, this is very unfortunate. Even if the judge had ruled against them, with a 1:1 lending scheme, they could have raised the case all the way up to the supreme court. And I am sure, they would have received significant support from other organizations.
Now, some other brave library will have to start over, and actually start from an unfavorable position.
*curse word*
That one really sucks. And is sad, I still had some hope.
Hmm, I think that when they crafted a world where I cannot even keep the digital bits that I buy, I lost all respect for them, and more importantly, I lost all desire to give publishers any more money.
https://www.flatpanelshd.com/news.php?subaction=showfull&id=1657022591
Kind of like if a local retail store smashed my windows and stole from me what I bought yesterday. Actually I do find it particularly hilarious that the industry’s solution to stop people from just downloading stuff for free, was to create a world where you cannot keep what you pay for… You can really tell a *whole* lot of thought was put into that one!