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Comment by bawolff | Hacker News Reader

Wow, reading the article this seems like a clear cut case. Did IA really think they could win this?

Edit: reading other sources, it seems like the crux of the idea is they would only lend out books where they had the same number of physical copies. I can see the reasoning for that, but it seems hard for fair use to get you there.

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The original idea was to only lend out digital copies that are backed by a physical copy, so if challenged the Internet Archive could reasonably argue that they're protected under the same laws that physical libraries are, but when the pandemic kicked off IA launched an "emergency library" which waived the lending limits so any number of copies could be lent out regardless of how many physical copies they have.

My assumption is that publishers probably weren't happy about the original model but it was legally murky enough that they didn't pursue it for risk of losing and setting the wrong (from their perspective) precedent, but the emergency library made for an extremely easy case against IA.

The case dealt with the former. This article is the judge's ruling, the National Emergency Library is not mentioned.

The full ruling does mention it, albeit briefly:

> IA also argues that it made fair use of the Publishers’ copyrights during the National Emergency Library. The analysis above applies even more forcefully to the NEL, during which IA amplified its unauthorized lending of ebook versions of the Works in Suit by lifting the one-to-one owned-to-loaned ratio. IA’s defense of fair use with respect to the NEL therefore also fails.

My mistake, though that line emphasizes that the NEL is barely relevant to the decision.

Nonetheless, its still the sort of thing that can colour opinion. If you want to change things with a precedent, it is usually best to try and be a perfect angel in every other way possible.

If anything, their "first sale doctrine" route seems like a stronger argument than fair use here. When you purchase a copy of a work, you have the right to lend, sell, or share that copy without any additional payment or permission required to the creator. This is how libraries have operated for centuries.

I think what IA was doing, making sure they only lend out as many copies as they physically own, was clearly within the spirit of that doctrine. But in the digital era, lending anything over the web necessarily means making a copy of it somewhere along the way, which laws haven't adequately adapted to yet.

Exactly. I'm not a lawyer but I'm baffled they went the fair use route -- fair use has nothing to do with it.

The argument that this is no different from lending temporarily to a friend seems to be much more reasonable. Especially since no money is changing hands.

The judge disagreed with that too. Companies have tried and failed to set up a streaming service backed by physical copies and they were struck down so this really didn’t have any chance either.

I don’t understand the reasoning there though. Like, I can get on board with sayibg fair-use is silly, but lending a book that I own —either digitally or physically— should be protected.

The concept of "owning" a book digitally is already on shaky ground, since most large publishers only sell licenses for accessing ebooks. You're not actually purchasing a copy in perpetuity like a physical book. Naturally these licenses are entirely on the publishers' terms.

In practice this means publishers can revoke access licenses for all sorts of arbitrary reasons, alter the content of ebooks already purchased, or plenty of other shady practices, with little recourse available to the reader.

Plus it means they can force libraries to keep paying repeated, marked-up licensing fees for the privilege of lending out ebooks. Much better deal for the publishers than the physical library lending model!

I don't blame IA for trying to find a way to liberate library lending from that racket.

publishers only sell licenses for accessing ebooks

That right there is the true root of the problem.

> You're not actually purchasing a copy in perpetuity like a physical book.

I own the physical book. Why does the publisher have any further rights to tell me what I do with it?

You can sell or lend the physical copy you own. You can’t make a copy and then loan that. Copyright is the right to control making copies.

You could sell or lend virtual copy if the platforms supported that. You are allowed to make a copy for backup purposes, and no one will ever know if you use that or even lend it. But if you make business of it, then they will notice and sue you.

It’s a subtle distinction but when you lend a physical book no copy is made.

Thanks for pointing that out.

It makes me so sad -- it reminds me of Aereo, when the Supreme Court ruled against it in 2014 that it wasn't allowed to stream public broadcast TV over the internet, despite having a separate radio receiver for each viewer.

I can understand why Congress hasn't changed law to allow digital 1-for-1 reuse of previous physical/analog sources -- because there will be too much lobbying against it from corporations.

But it really seems like the Supreme Court had a chance to set new precedent in an area that hadn't been foreseen in law so really was undefined. And they chose corporations over consumers back in 2014, just like a federal judge did again now.

I can only imagine how much better if the Supreme Court had sided with consumers here. Congress could have overturned it through law, of course, but only in the face of massive voter dissatisfaction, and so I'm not sure they would have.

The first-sale doctrine was also covered in the ruling. According to the letter of the law (17 USC § 109) it specifically only covers the distribution of existing authorized physical copies; it doesn't grant you permission to make a copy and lend that to a friend.

> I think what IA was doing, making sure they only lend out as many copies as they physically own,

Part of this points out that they weren’t even doing that; there was no process to ensure that the “partnered” library wasn’t simultaneously lending out their copy.

The thing is IA wasn't lending the copy they purchased, they were lending a reproduction of the copy. The question here is if it was legal for them to make that copy which is where the fair use argument comes in. I wonder if they could buy ebooks and lend those instead of starting with a physical copy.

During the pandemic, libraries closed and weren't lending out physical books at all. Did the emergency policy lend more digital books than the number of physical books locked in libraries? We'll probably never know, but I think that was the logic.

The scanned books are not so much fun to read, it is definitely less ergonomic than a Kindle. I would expect those using the program likely needed it.

>Did the emergency policy lend more digital books than the number of physical books locked in libraries? We'll probably never know, but I think that was the logic.

The most checked out book, The Lion, The Witch, and The Wardrobe, had ~850 check outs. I think it's safe to assume they didn't come close to the amount of physical books locked in libraries.

Not that it's very important, the pandemic policy is barely mentioned in this ruling.

This is a justification that makes sense in theory, but the Internet Archive doesn't own those books and can't track them. If they had asked libraries to explicitly send parts of their collection to the IA for this, that might've held some weight.

That’s irrelevant to the defense, which would probably amount to ‘publishers didn’t suffer any material loss’.

Libraries negotiate ebook rates with publishers. I don’t see why there would be any correlation with physical copies.

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