Internet Archive appeals, says judge Koeltl "misapplied the fair use factors"
publishersweekly.com
publishersweekly.com
I strongly opposed the IA's uncontrolled digital lending at the start of the pandemic. I thought its "Emergency Library" was very clearly illegal and tactically very stupid.
On the other hand, I fully support the concept of controlled digital lending, about which the current appeal is concerned. As an author, I don't particularly care about whether a book that a library legally acquired is lent as a physical copy or a digital copy, as long as it is controlled the same way as physical copies are controlled (i.e. one person at a time can have the copy checked out). True, my publisher might consider the distinction important, because e-book licenses are a valuable revenue stream for them, but my interests are satisfied as long as the physical copy is legally acquired.
Yet although I support CDL conceptually, I think more needs to be done by Congress to codify the practice; going solely by existing case law, I can see why the judge ruled against IA.
In particular, the IA's argument that their CDL program was transformative, as fair-use law defines the term, is extremely shaky. What they're saying is that they employed a novel distribution method -- but that method doesn't actually transform the copyrighted work creatively; the words remain exactly the same. The term "transformative," when applied in a fair-use analysis, implies altering the material in some way, not just introducing a new transmission method.
I still don't get why people hate this so much.
The most important fair use factor is the effect on the market for the original work. Obviously if the "Emergency Library" was permanent it would have a major effect, because libraries could buy one copy of a book and lend it to everybody, instead of having to buy enough that everyone who wants to borrow one at once can have a separate copy. But it was never intended to be permanent, and as a consequence it wouldn't have materially affected the number of books that libraries buy.
As far as I know it hasn't even been established that the number of books they lent out was greater than the number locked away in closed libraries everywhere during COVID, and it seems intuitively likely that it wasn't (that's a lot of closed libraries). So the argument is that because it's an emergency and temporary, they can go on an approximation instead of having to do the exact accounting during the emergency situation.
Which doesn't seem that crazy.
It's like the difference between short selling (legal) and naked short selling (illegal). The reason the latter is illegal is because it involved acting as if you owned something that you didn't actually own.
If the IA wanted to treat other libraries' books as its own for the purpose of CDL, they should have (temporarily) acquired a right to do so by entering into an agreement with those libraries.
It's crazy to think that any one entity can unilaterally claim that it is the conduit for distribution of the titles of other libraries besides its own, shuttered or not.
My library is closed between 5pm and 10am every night, and twice a week during the day. Should the IA be able to temporarily claim my library's inventory as its own during those periods?
It was reasonable to expect that most of them didn't have the technical capacity to accomplish that in the available timeframe.
> It's like the difference between short selling (legal) and naked short selling (illegal). The reason the latter is illegal is because it involved acting as if you owned something that you didn't actually own.
The reason the latter is illegal is that the person you borrow the stock from is getting paid interest to compensate for the risk you become insolvent before you give it back, but the person you're selling it to isn't.
The author is at no risk of "losing principal" in any analogous way.
> If the IA wanted to treat other libraries' books as its own for the purpose of CDL, they should have (temporarily) acquired a right to do so by entering into an agreement with those libraries.
They were closed and possibly unable to be contacted (you call the phone number of a closed library and there is nobody there to answer it), and it was an unexpected event that was having immediate consequences whereas that kind of negotiating was likely to have taken longer than the duration of the emergency to complete.
So what? Just because the owner can't respond in a given timeframe does not give a you (or anyone) the right to appropriate other people's property. By your argument at the height of the Covid lockdowns I would be justified in taking your car & loaning it out to people because you weren't using it and didn't "have the technical capacity to accomplish it in the available timeframe."
The fact that it was a license that IA was assigning to themselves rather than a physical object makes no difference whatsoever.
Inter-library loans are common. It was reasonable to think that more than enough libraries would have agreed to provide the number of books they lent out if it was feasible to contact them.
> By your argument at the height of the Covid lockdowns I would be justified in taking your car & loaning it out to people because you weren't using it and didn't "have the technical capacity to accomplish it in the available timeframe."
That would have deprived the vehicles owner of the use of the vehicle, and created a risk that it could be damaged or worn out through use. You're using an analogy that hinges on the very thing that makes copyright different than personal property.
Also, doing things like that often is permissible, even with personal property, in an emergency.
However, to me (and the law), an emergency is "someone is going to die or be seriously injured, and imminent intervention is needed to prevent that."
I know that it sucked that most public libraries were closed for several months.
But nobody needed a copy of my book "Experimenting With Babies: 50 Amazing Science Projects You Can Perform on Your Kid" to prevent imminent serious harm.
If reading my book could have prevented injury or starvation, sure. But there was no "literary emergency" here that required pirating copyrighted material as the only reasonable response.
Because it was such an own-goal. They were obviously going to get sued for it, and they were probably going to lose. Some people might not like that it, but it is the reality of the situation. How did they think it was going to end?
They didn't think they were going to lose. They're spending resources to appeal this right now, and it's not because they think it's completely hopeless.
There is also some strategy in the provocation, because in order to establish a precedent that the original version of controlled digital lending is allowed, they'd have to get sued and win, but they'd been doing it for a while and nobody sued them. They had to push the envelope enough to get into court and it seems weird to get mad at them for dancing near the line when doing that is inherently necessary to establish a precedent.
And your argument is essentially circular. They should lose because they'd probably lose? But why? Did any libraries stop buying books as a result, depriving publishers of revenue?
That's not what I said - I said they shouldn't have done what they did, because they will lose.
They can assemble multiple pieces of law (both actual law and prior case law) to create a new precedent (aka case law) but there's no prior case law or actual law that makes what IA did legal.
That's why IA should lose according to the law (y'know, the terms being talked about, your own morals and views don't matter in the eyes of it), even if I think in a just world, IA should just've gotten a slap on the wrist and a warning to not do it again.
They're arguing that it was fair use. Fair use is pretty clearly the law, it's 17 U.S. Code § 107.
But the law sets up a balancing test with a bunch of factors, which makes it open to interpretation and means you have to make the case for your preferred interpretation to the court.
Which you can only do after doing the thing and getting sued, because otherwise there is never a court opinion establishing the law one way or the other.
Maybe that's absurd -- maybe you should be able to find out if something is illegal or not before you do it -- but now you're arguing that the law is absurd, not that the absurd mechanism isn't actually the law.
If you want to blatantly break copyright law to make a point, and hope that you'll somehow get off by asking the judge nicely, do it in some isolated org please. Not with the wallet of a major modern museum
That aside, to my understanding the failure of IAs version of CDL was established during fact finding but I think if the IA hadn't so blatantly just decided to disable all lending restrictions, the courts would probably have been willing to chalk it up to typical organisatorial negligence and left it at that.
It's just a very stupid move on the whole and frankly actively dangerous when you consider the other main service that IA operates (the Wayback Machine). The only defense the IA really has is "we're so essential to the modern internet that we shouldn't be punished for breaking the law", which I don't think the courts are gonna look very highly at.
And mind you that I say this as someone very sympathetic to wanting a more lenient look at modern copyright. It doesn't change that the IA decided to poke a dragon and got burned. There's better ways to advocate for change than to expect the courts to not follow the law because you want them to put in a new exemption for you.
Why not?
If it was permanent then one library would buy one copy of each book and everyone would be able to borrow it forever, so no library would have to buy another copy of the same book.
If it's temporary then libraries will have had enough copies for the typical number of people who borrow them at any given time, even during the period when the emergency library was operating, and would continue to buy them because a book is a decades-long investment for a library and they would reasonably expect to continue to need the same number of new books going forward as they always did before.
Essentially the emergency library would cease to exist before it had a meaningful effect on the purchasing behavior of libraries. Being temporary makes all the difference in the world.
I think you can construct a thoughtful argument that IA's Emergency Library provided more of a service to the public than it cost publishers/authors, and that it was the right thing to do because of that. People are alone and depressed and need something to lift their spirits, kids aren't in school and need to learn, etc, etc. We all gave things up for the common good during COVID. The effects on publishers and authors weren't ideal, but no part of COVID was.
There's an orthogonal question of whether what they did was legal, and it's much harder to make a salient argument that it was.
> So the argument is that because it's an emergency and temporary, they can go on an approximation instead of having to do the exact accounting during the emergency situation.
This doesn't have any legal basis that I'm aware of. Individuals and organizations don't get to decide whether an emergency deserves loosening of laws. The intent is that Congress would do that (not that I think recent Congresses would be capable of reaching an agreement, but that's the intent). Congress would say "yep, this is an emergency and getting reading material to people is important, so we're loosening lending rules for X months".
The system is dysfunctional, but it's still not going to let IA decide how the rules apply to them.
I think the best case, and what I'm hoping for, is that the judge recognizes that IA was trying to do something good for the public and that they get a "don't do that again" slap on the wrist. Give them a fine, force them to work with publishers on some kind of auditing system for the lending, and let them get back to their work. It's important work, even if they occasionally overstep their bounds.
I have a lot of sympathy for the IA, but they got quite sloppy.
Codifying CDL is never going to happen because it's a loophole big enough to drive a The-Pirate-Bay-branded truck through. It would be easier to abolish copyright. With first sale on physical goods, it's obvious where the first sale rights end and infringement of copyright begins. With digital, literally everything is an infringing act of copying[0], so any rule of how many copies can be made (e.g. "one to one") needs full-supply-chain enforcement. It'd be very easy to cheat the CDL system without even generating any evidence that cheating had happened.
For example, in the IA case, even when IA was enforcing their own CDL rules, the libraries they had partnered with weren't as careful. There were several libraries that were caught not taking the physical backing copies of loaned e-books out of circulation, none of whom were actually removed from the CDL program. I mean, the physical book doesn't stop existing when you loan out the e-book, you just have it on faith that we pretend it's been shoved inside the wires until that e-book copy expires.
What we actually need to fix libraries' ebook programs is collective bargaining and compulsory licensing programs. We already have this for radio: there's a part of the copyright office that decides how many fractions of a penny to charge a radio station every time they play a song, and as a result, radio stations can play whatever[1]. The current way ebook lending happens with libraries is through Overdrive, a private corporation that acts as a platform for trading DRM license files around, but because it's private, it all happens with consent of the publishers. Libraries have been turned into a glorified "Netflix of books" because the publishers can play games with what parts of their collection are available for rental.
Instead, what we could do[2] is the radio thing. In lieu of a formal licensing agreement with a handful of consenting publishers, you have a collection society or government office that sets the e-book rental rates and handles payment. Libraries that want to rent out e-books can do so using whatever technology works[3], even with scans of orphan works if necessary, not just one particular e-book vendor's app that only works with officially delivered files.
And while I'm suggesting copyright reform ideas that might never happen, we should also ban copyright assignment.
[0] Or at least the Ninth Circuit says so, and they've never been wrong about anything, right?
[1] Though in practice, they only play like five songs, but that's Clear Channel's fault - the record labels don't get to say no here.
[2] with the consent of Congress, yada yada
[3] In practice this would almost certainly have to mandate DRM to turn the rental copies off at the end of the rental period, which is , but that's at least something that can be enforced by a third party.
The inability to generate evidence is not any kind of distinction. Anybody can go to the library, borrow a physical book, take it home and scan it into their computer. They can print out a physical copy and put it on their bookshelf. They can upload the scan to an offshore piracy website via Tor and nobody has any way to know who they are.
People pay for books because they want authors to keep writing books, not because nobody has figured out how to anonymously distribute content over the internet.
> What we actually need to fix libraries' ebook programs is collective bargaining and compulsory licensing programs. We already have this for radio: there's a part of the copyright office that decides how many fractions of a penny to charge a radio station every time they play a song, and as a result, radio stations can play whatever
The record labels used this to essentially destroy internet radio by making the compulsory fees uneconomically high so they could turn Spotify et al into the "Netflix of music" because the fees bankrupt most anyone who doesn't enter into a separate agreement with the labels. And then independent music services can't play small unsigned artists because it's uneconomical to negotiate with them individually and also uneconomical to pay the compulsory licensing fees if you don't. And large radio stations have to cut deals with them that cause the thing where "iHeartRadio" (formerly known as Clear Channel) only plays the five songs the labels want them to (essentially payola, but now you're bankrupt if you don't take the deal).
The thing IA was doing seems better.
If they'd been more tactful and discreet, they might have gotten away with it. There are plenty of other copyrighted works freely available on the IA, and most don't attract enough attention to provoke legal action. The sheer scale and brazenness of this move is what's got them in trouble.
IA did wrong, and they know it. They should at least have the good grace to acknowledge it instead of wasting a ton of resources on a legal battle they have no hope of winning.
I fear this will be the beginning of a long and drawn out death of the IA, which would be a huge shame.
That would really be the best outcome that reflects good spirits.
This, of course, won't happen. Brewster Kahle doesn't believe in copyright, and is clearly willing to burn everything to the ground in the hopes of scoring some win against it. And everyone else knows that isn't going to happen.
The only way for the IA to survive is Kahle to leave it.
It's very annoying.
It would be practically corporate malfeasance for the publishers not to sue considering how blatant the abuse was.
I've witnessed this with a member of my own extended family, a married business owner with a child, who became so fearful that we as an extended family had to assign them what was basically a rotating watch, because without someone to reassure them that things were okay they were becoming unhinged and would try and euthanise their pets because they were so convinced we were all going to die.
I do not know why some people became so susceptible to this while others just 'kept calm and carried on' but having witnessed it with my own eyes and heard reliable testimony from others I'm very reluctant to assign blame to an individual.
It's possible that this guy really did think that doomsday was coming and that it was his duty to make sure that everyone could read freely in their last days on the planet.
It was a very odd time and a lot of people are still not able to convincingly explain their actions during that time.
So for that reason, I find it hard to judge.
I don’t know how Overdrive licenses it from publishers.
A digital copy of a work is obviously not transformative of the work. I can't rip my old DVDs and say the digital copy is transformative to get around copyright.
A similar example, you can't make an audiobook of a book you own and then make that available to others even though that is obviously MORE transformative than what IA is arguing.
Subject to fair use and the first sale doctrine.
> A digital copy of a work is obviously not transformative of the work. I can't rip my old DVDs and say the digital copy is transformative to get around copyright.
Ripping DVDs gets prosecuted under DMCA 1201 for circumventing copy protection, not because format shifting media you own can't be fair use. See Betamax case.
By scanning and lending a book, they are reproducing a copyrighted work and transmitting it to someone else without authorization from the copyright holder.
It's not up for interpretation, the law is very clear and explicit on this point.
Their argument is logical and coherent, and it makes sense on its own, but that doesn't make it any less wrong.
Creating a copy and passing it out to anyone who asks is piracy.
Again, the law is pretty explicit and clear about this.
Copying as a matter of using the software or making archives of the software is legal.[1] There is also no practical way to police what happens and never leaves the inside of your home.
Distribution of copied software on the other hand is very illegal, and is what most so-called "archivists" (including the Internet "Archive") run afoul.
Internet Archive would be having no legal issues if they simply copied software they have a right to possess and then stored the copies in their own servers inaccessible to anyone but themselves, also known as archiving.
And no, archives do not need to be publically accessible.
Clearly libraries distribute copies of copyrighted works all the time -- it's kind of their whole purpose. Lending books.
Now suppose the library owns some VHS tapes and makes one DVD out of each tape, then lends out the DVDs to patrons instead of the tapes because the patrons have DVD players but not tape players. That seems like a reasonable thing for them to do. What can you cite that says that isn't fair use?
> Reproducing a VHS to DVD without the prior permission of the rights-holder is an infringement of copyright. This kind of reproduction is not exempt because it is not "fair use" and it does not qualify as a lawful reproduction. However, in a situation where the VHS tape is lost, stolen or deteriorating or is in an obsolete format (a 3/4" tape is obsolete because the equipment is no longer being sold, but a VHS tape is not obsolete) and is not available in the DVD format in the market for a reasonable cost, the library can make a reproduction. But if the reproduction is in a digital format (DVD is digital), then that copy cannot leave the library premises.
An answer in which they cite no statutes or cases for the notion that converting VHS to DVD isn't fair use.
There is a difference between "we're recommending that you not do something that might cause you to have to establish a precedent in court" and "here's the citation to the court case where this was decided." It's only the second one that tells you the answer instead of some risk-averse institution's opinion.
Copying something in its entirety is not Fair Use. One of the requirements of Fair Use is that you copy as little as required for your purpose.
For example, copying a line or two from a book for use in a book review or citation is Fair Use. Copying entire paragraphs or even the entire book is not Fair Use.
>How much of someone else's work can I use without getting permission?
>Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See, Fair Use Index, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.
Again: no; that's not what this appeal or the article is about. What Publisher's Weekly is reporting on here is their controlled digital lending program and the court's decision that found that was illegal—not the "National Emergency Library".
It's rock solid advice.
I told people not to take anything randomers with dubious legal training have to say even remotely seriously. I stand by that completely.
Do you have any idea how wrong people get legal issues? Even expensive lawyers and respected judges get them back-asswards on a frequent basis.
And the courts take a very dim view of filing appeals based on PR ideals rather than basis in case law.
I don’t see this going well for IA.