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Comment by bilkow | Hacker News Reader

While IA has temporarily lifted the restriction on number of copies (but not others like lending time), the complaint also goes against CDL in general, making it very dangerous. See for e.g. paragraph 8 and 10.

"IA’s self-serving assertion and promotion of “Controlled Digital Lending” as both an actual legal doctrine and a justification for its infringement affronts the most basic realities of the law and the markets it propels. As a matter of markets, IA’s one-to-one conflation of print and ebooks is fundamentally flawed. Digital books are inherently different from physical books. They can fly around the world in a second; they do not degrade over time as physical books do; and they require devices to read them."

https://publishers.org/wp-content/uploads/2020/06/Filed-Comp...

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they do not degrade over time as physical books do

It's worth pointing out that libraries will rebind a physical book if it starts falling apart. It's weird to argue that publishers' rights should last the full term of copyright, but readers' rights only last until a book wears out.

Why is that weird? Copyright law for centuries has provided that the copyright owner's rights last the full term of the copyright. (The copyright owner may be the publisher or the author.)

A reader's right to a physical copy only lasts as long as the physical copy. If they want to extend the term of that right, they should take better care of their physical copy.

Modern copyright law in most places allows the creation of a backup copy of digital media to prevent loss due to wear.

That is actually not true in the US. The exceptions for making backup copies are limited to software (17 U.S.C. § 117(a)), and to libraries (17 U.S.C. § 108).

The market of effect of copies for personal use is insignificant and my understanding is that they are generally exempt as fair use.

In the US at least, fair use does not include a right to make personal backup copy. If you wish to extend your use of the item containing some IP, your options are basically to just take better care of the physical item.

However, it's simply not worth it for a copyright owner to go after someone making a backup copy for personal use since the statutory damages are only $750 (per act of infringement), and don't include legal fees. (Contrast to the infamous Napster/Limewire cases: each peer connection in P2P sharing constitutes a separate act of infringement if you share to them, which is what made it potentially lucrative for some law firms to attempt to shakedown users of those programs.)

This is an intended effect of setting the statutory amount at $750: it's too low to make it economical for copyright owners to go after isolated cases without market effect, but at the same time quickly makes it very expensive for infringers to commit multiple acts of infringement.

I'm not saying Congress has passed a law explicitly making personal copies legal, but it does appear courts (in the US) do consider market effect when determining fair use.

This isn't exactly the same as personal use but it's pretty relevant: https://arstechnica.com/tech-policy/2015/10/appeals-court-ru...

> "While Google makes an unauthorized digital copy of the entire book, it does not reveal that digital copy to the public," the opinion states.

Also, Pamela Samuelson, a professor at University of California at Berkeley has stated: "Personal-use copying should be deemed to be fair, unless there is a demonstrable showing of harm to the market for the copyright at work"

>>In the US at least, fair use does not include a right to make personal backup copy.

While not "fair use" the library of congress which is empowered to make exemptions to DMCA has made such exemptions for Personal backup

Further the Copyright law only grants the Creator 5 Rights, these are around the public dissemination of the work, not the private use of the work. it is not a total control over the work like authoritarian copyright maximalists like yourself believe it to be

The Supreme Court has held in many contexts that non-distributed reproduction falls outside the control of copyright, so I can make as many PERSONAL copies of a work as I desire provided I never sell, gift, or distribute them in any way

I would love for you do show me in copyright law where it grants the right to control personal reproduction, as the copyright law is very clear about what rights it grants, it is all about distribution and performance

https://www.law.cornell.edu/uscode/text/17/106

In the US context- A) Copyright terms have increased 5 fold over the centuries. B) The Supreme has ruled, at least in many contexts, that creating a backup copy of a work is fair use. I believe generally this applies so long as the backups are not sold or distributed separately from the original.

So, at least in some context this is false- the reader's right is to the information contained within the physical copy, not just the physical copy itself.

depends on the 'copyright'. If it covers the book's info and the book physical.

This is similar to a 'digital' copy and a 'CD' copy. I'm just saying, the current 'movie/film' money corps will push for 1 side of this argument.

You have to admit, they've got a point: Digital books are inherently different from physical books. So maybe copyright should never have been applied to digital books at all.

Now if the courts decide that applying copyright, which is as old as the printing press, to digital media, which are neither printed nor pressed, makes no sense, and they declare all forms of Digital Restrictions Management to be illegal, and it all happens because of this lawsuit, specifically because of this slip of the tongue, which only happened because the Internet Archive intentionally overstepped some legal boundaries at an opportune time, I'd say: Well played, Internet Archive.

Not going to happen, though. Courts don't rule against established companies, ever.

I agree with the majority of your comment, but

> copyright, which is as old as the printing press

The idea of copyright was not fabricated until about 200 years after the the printing press was invented, and then it was a tool for censorship. https://en.wikipedia.org/wiki/Copyright#Background

Point taken; bureaucracies were even slower back then. But...

> it was a tool for censorship

When did that change? Did it ever?

No, copyright is censorship, so it can't have changed. Censorship isn't always bad, though. Copyright is censorship in the same way that making it illegal for someone else to say they are you (identity theft) is censorship. Copyright is a bit more abstract though, so is easier to abuse.

> Censorship isn't always bad, though.

Yes, it is. Censorship is obscene, no matter how well-intentioned the perpetrators.

> Copyright is censorship in the same way that making it illegal for someone else to say they are you (identity theft) is censorship.

It isn't illegal for someone else to say that they are you—per se. Actors do that sort of thing all the time. It only becomes illegal if they do so deceptively with the intent of achieving some sort of financial or personal gain, i.e. to commit fraud. The illegal part is the attempt to obtain goods or services under false pretenses.

Copyright is completely different. It penalizes the unauthorized distribution of factual information—even if these facts are just the arrangement of words in a work of fiction, or a series of numbers describing a certain sound wave. There is no deception involved in copyright infringement, no goods or services obtained under false pretenses, just the communication of information through channels which certain parties would prefer to suppress.

Gosh, I'm pretty much as anti-copyright/pro-freedom of information as anyone you would ever meet.

However, I think there has to be a reasonable way to implement copyright so that artists can get paid for their creations in a reliable way.

A third party shouldn't be able to host/index a bunch of someone else's IP, sell ads, and make bank at the expense of writers, musicians, etc.

On the other hand, Michael Jackson is dead. Why is his music still copyrighted? The material has earned zillions of dollars already. The ownership of those rights by corporate randos is ridiculous. Copyright holders have, in my lifetime, behaved in a ridiculous way--even abusively towards original artists via DMCA take downs. But the notion of copyright is still important.

All that said, platforms that pay artists pennies while making billions on the activity they attract are probably a bigger threat to art these day. That also needs to be dealt with.

> Gosh, I'm pretty much as anti-copyright/pro-freedom of information as anyone you would ever meet.

Clearly you've never actually met anyone who was anti-copyright / pro-freedom of information. To begin with, they're not going to be looking for "a reasonable way to implement copyright" or saying things like "the notion of copyright is still important". Kind of goes against the whole anti-copyright mentality.

> A third party shouldn't be able to host/index a bunch of someone else's IP, sell ads, and make bank at the expense of writers, musicians, etc.

There is no "at the expense of…". The third party is performing hosting and indexing services and getting paid for that work. They benefit, the users of the site benefit, no one else loses anything. In the absence of copyright anyone else could do the same, so it's naturally going to be a low-margin business.

If we want artists to get paid in a reliable way, without wrecking the rest of society in the process, we need to look beyond copyright, to patronage, crowdfunding, sponsorship, open collaboration, and other models. The presence of copyright doesn't guarantee that artists get paid. It does ensure that we're actively crippling our technology, erecting barriers between people, undermining the art itself by making it all about money, encouraging contempt for the law (not entirely a bad thing IMHO when the law is unjust), and creating a parasitic copyright industry which leeches off of both the public in general and artists in particular, in the end serving no one but itself.

I am fully against the practices of illegitimate DMCA notices, suing torrenters, etc.

As I said, I also think terms of copyright should be deeply constrained and nontransferable upon death.

But like, megaupload? Why should such a business model be allowed to exist? 100% parasitic.

This is drastically different from what we know today.

Patronage? Who if not the people acquiring the material? Crowd funding? Won’t that be in competition with the pirated commodity? Sponsorship, like ads in the content?

I’d rather pay an artist for content for a reasonable price and duration, while shutting down excessive suits.

Get off your high horse. It’s a complicated issue. The whole web runs on sponsorship and ads and it sucks horribly. There are balanced approaches worth considering. Content has value.

You said:

>> Gosh, I'm pretty much as anti-copyright/pro-freedom of information as anyone you would ever meet.

You aren't even close. Stopping just short of copyright maximalism doesn't make you anti-copyright. It makes you slightly more reasonable, but you're still on the opposite side of this particular debate.

> But like, megaupload? Why should such a business model be allowed to exist? 100% parasitic.

What's so parasitic about a file hosting service? They get paid a premium right now because they're taking on a bunch of legal risk on behalf of their users. You can blame any surplus profits squarely on copyright law itself.

> Patronage? Who if not the people acquiring the material?

The patrons normally would be the ones acquiring the original copies, yes. At that point it would be up to them to decide what to do with those copies. Patrons would normally also receive credit for funding the production of the work. This model works well in situations where there is social capital (or simply a sense of self-worth) linked to being known as a "patron of the arts".

> Crowd funding? Won’t that be in competition with the pirated commodity?

You're thinking of pre-sales. Crowdfunding is more akin to patronage, just with a broader audience. Backers might get some perks, such as public credit or merchandise, but there is no guarantee of exclusivity. The resulting work may or may not be made available directly to the public, though the distributed nature of crowdfunding pretty much guarantees that at least one backer would "defect" and make their copy available shortly after the initial release.

> Sponsorship, like ads in the content?

Product placement is one form of sponsorship. It can be done well, or poorly. Quite a bit of quality content has been produced for free distribution through unobtrusive sponsorship arrangements. Sometimes content that people are interested in for its own sake also incidentally happens to benefit someone, so they're willing to pay for its production even without any direct promotion.

Information should be free to share and copy, but not at a profit if it infringes on the owner of the IP. That’s VERY short of maximalism. That is a radical reform.

Megaupload employees and owners uploaded pirated content, and profited hugely. Not small margins—they made millions.

I’m against YouTubes, Spotifys, and even megauploads screwing content creators. Tech doesn’t have the right to assume ownership of the world via content platforms.

All content production is struggling under the glut of technological wealth extraction via platforms. A good copyright implementation would help avoid this. It’s nothing like what we have, but the concept of copyright is not the same as the abusive system we know.

I feel like you are railing against copyright the way conservatives rail against socialism. Doing so mischaracterizes the sensible arguments that are classified as such.

The goal should be to promote diverse content creation by allowing creators (Not their platforms or corporate ownership) to be compensated, and to simultaneously allow for cultural exchange with concepts like free use and limited copyright durations, and by protecting/promoting library lending. Such things are possible, and I think optimal.

Every single sentence in your post is pro-copyright. I get it, you support a more limited form of copyright than we have right now. Just don't go around calling yourself "as anti-copyright … as anyone you would ever meet". Especially not to someone who is actually anti-copyright. I don't have to look around to find an obvious counter-example. It's me.

> Information should be free to share and copy, but not at a profit if it infringes on the owner of the IP.

That sounds like what the Open Source Definition would classify as discrimination based on field of endeavour. Terms like that are way more trouble than they're worth. If anyone can share and copy the content at cost, the only way to earn a profit is to provide some value-added service. Which means you're not profiting from the content, but rather from the service you've added on top. I'm not sure why you would have an issue with that.

> Megaupload employees and owners uploaded pirated content, and profited hugely. Not small margins—they made millions.

That's only because competition for hosting and indexing services was severely limited by copyright. I don't see the relevance to the scenario you're describing where there are no restrictions on (non-profit) sharing or copying. Their margins would be basically zero under those circumstances, or at least no more than any other hosting service. Any profit they did make would be due entirely to their own efforts.

Yes, although I have my gripes with IA, I fully support the CDL model, and I think there is strong legal justification for it.

The inherent differences the publishers list -- the speed at which ebooks can be lent, the fact that they don't physically degrade, and that they must be read on a device -- are real, but they don't strike me as relevant to the actual legal principle that governs library lending. The first-sale doctrine holds that if you purchase a creative work, you can lend or resell it, and doing so does not violate an author's copyright. Even if there are real differences in how ebooks and physical books are transferred, maintained, and read, I don't see why those differences are material to the first-sale doctrine's granting owners of creative works the right to lend them.

That's not how the first sale doctrine works, nor is it how it has ever worked.

In a nutshell: the first sale doctrine merely means that if someone comes into legitimate possession of a physical good containing IP, they are free to sell or otherwise exploit the physical good without requiring a license for the IP contained therein.

Crucially, the first sale doctrine does not extend to exploiting the IP itself, so if the IP is separated from the physical good (such as by recording or scanning a copy), the first sale doctrine no longer applies.

The first sale doctrine does not apply at all to library lending programs. Libraries providing digital lending pursuant to explicit licenses provided by publishers for digital lending.

Your re-characterizing of the publisher's claims is as disingenuous as the IA's, since that's not what they're claiming at all.

You left out the second half of that paragraph: "For these reasons, the Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books."

Normal public libraries can do digital lending (and have, for decades) because they get proper licenses from publishers or authors to do so.

The IA is claiming that they don't need a license for physical books they own under the first sale doctrine, which is blatantly false: the first sale doctrine means they can sell or lend the physical copy of the book they possess, not that they can distribute the underlying IP of the book without permission of its creator. And even to the extent that the IA claimed it was limited lending on a one-to-one basis, it abandoned those limits and simply lent out as many copies as people wanted.

Also from the publisher's lawsuit: "Separately, Section 109 of the Copyright Act is clear that, pursuant to the doctrine of first sale, the owner of a lawfully acquired print book may dispose only of her/his particular print copy."

In its response, the IA denies that section 109 [https://www.law.cornell.edu/uscode/text/17/109] in fact says precisely that. It lets you know that their argument isn't premised in any sort of legal grounding.

I don't think my post re-characterizes publisher's claims at all, the part you mention simply claim that they offer a way to license those books in another way and they're trying to separate ownership into physical and digital, denying any form of digital ownership (by licensing instead).

> Normal public libraries can do digital lending (and have, for decades) because they get proper licenses from publishers or authors to do so.

Normal libraries do not need any licenses to lend books they own at all, but they can get a digital-only license, which is not ownership

> The IA is claiming that they don't need a license for physical books they own under the first sale doctrine, which is blatantly false: the first sale doctrine means they can sell or lend the physical copy of the book they possess, not that they can distribute the underlying IP of the book without permission of its creator.

CDL is not distributing the underlying IP of the book at all, its lending a single copy of the book using DRM to prevent anyone from copying or reading after the lend time is over. Only a single person can read the legally owned copy of the book at any given time.

> And even to the extent that the IA claimed it was limited lending on a one-to-one basis, it abandoned those limits and simply lent out as many copies as people wanted.

Yes it did it for a limited time (which I believe was an obvious mistake), and that's not what I'm talking about. What I'm saying is that the complaint ALSO goes against CDL in general, not only against their IA's national emergency program, as its clear from the parts quoted by you and me.

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