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this post was submitted on 04 Sep 2024
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Any digitized lending was always illegal.
The law was abundantly clear. You cannot distribute wholesale copies of someone else's work. Publishers didn't bother because the scale was small and they didn't want to take the PR hit for a scale that didn't matter.
The first sale doctrine, necessarily, can only possibly apply to a physical object. There is no such thing as a "single copy" of a digital object. Every time that "single copy" moves is a new copy. There is no legal framework in the US that even acknowledges the premise of a digital copy. It's always a license.
You need new laws to apply to the digital world. There is absolutely zero room for ambiguity that what the Internet archive did never in any way was protected. This ruling was a literal guarantee the minute the Internet Archive removed their (unambiguously not in any way legal) pretense of a "single copy". There isn't a court in the country that would even consider ruling any other way, because the law is well beyond clear. This ruling happened because the Internet Archive forced it to happen. If they had left open mass scale piracy to pirate sites they would have been fine.
If their lawyers advised them that there was even a possibility that this argument could work, they should be disbarred. They would be better off spending their money on lobbying for better laws than pursuing a case less likely than winning the power ball jackpot 5 draws in a row.
I think Title 17, Chapter 108 of the U.S. Code would beg to differ. Digitized lending was always allowed, especially for libraries and archives. The only ambiguous part was the number of copies allowed to be digitized of any individual work, (many of the books the Internet Archive digitized only had one copy digitized and lent at any given time) so most of what the Internet Archive engaged in was fully legal under this code, and only a fraction of the 500 million titles that are now illegal to lend would have been affected, even though all 500 million can now not be legally lent due to this ruling.
True, we can agree on that. We need new laws. Until that point, no change will happen if the boundaries are not pushed.
I guarantee you there hasn't been anywhere near the current level of momentum for the rights of libraries to lend digitized books any time prior to this court case. If the Internet Archive hadn't done it in the first place, we would be in the same situation we're in after this ruling.
Them doing so pushes the issue forward.
As I'll say again, this was not the premise under which the publishers won this case. They won the case under the premise that any digitized lending was not transformative, and thus not "fair use," even though it's legal under other statutes. The number of copies held no bearing on the ruling.
Literally every digital "loan" is multiple separate, unrecoverable copies. That law is not about digital lending and cannot be applied to digital lending.
All digital lending of copyrighted material without an explicit license to do so is copyright infringement, and it was always a guarantee that the ruling would happen.
The removal of the "single copy" lie isn't relevant to the legal status. It's relevant because it forced the hands of the publishers to take action. There was never any possibility of any ruling but the obvious blanket "you can't do that" that the law dictates, once IA forced them to take it to court.
That's provably incorrect.
"it is not an infringement of copyright for a library or archives [...] to reproduce no more than one copy or phonorecord of a work"
Title 17, USC 101 defines a copy as "...material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device..."
Digital replication falls under the legal definition of copying in the US Code, and is directly cited in the prior section of the code I reference in my last reply.
The Internet Archive's loans also utilize DRM, a standard kind of software used by every other library out there to restrict further replication of copies. This same technology is in use with libraries who have contracts with publishers to directly download and publish digital copies of non-printed ebooks, which would violate that contract by not using DRM. The Internet Archive, without any express contract from publishers, is still implementing the strongest measures of protection that the publishers themselves would require whether or not content was directly licensed from them instead of being scanned in from a physical copy.
Nothing forced them to do anything. These publishers voluntarily decided to file a lawsuit because of mounting pressure from libraries as a collective to stop charging insanely high prices on ebook rentals from publishers, which they saw as being undermined by the fact that the Internet Archive was able to still pay for the books in question, but lend them out in the same manner that physical books are already lent, just through a screen.
As I mentioned before, if the Internet Archive had never done this in the first place, public outcry would be practically nonexistent, and the Internet Archive wouldn't be lending out those books at all, just like they're not legally able to now. There is no difference to if they had or had not done this, other than the fact that it is now more visible in the public sphere, and has active legal challenges instead of being quietly subverted by regulation and practices publishers have continued to mount against all libraries to re-establish what it means to own a copyrighted work.
It is literally impossible to send a file over the internet with no more than one copy. Every additional "loan" is multiple additional copies. Even if we ignore that, you're very conveniently ignoring the "material objects" part of that definition, which again, completely and unconditionally disqualifies a loan over the internet.
DRM is entirely irrelevant. It has no bearing on anything.
They filed a lawsuit because IA flagrantly and egregiously violated their rights. They openly fucking dared them to. And now they don't get ignored on their limited copy illegal lending and can't get away with any copies.
I'm not, it's just that the wording of the definition could lead to you interpreting it as such. It does not mean what you think it means.
In essence, it's saying that if a material object is "fixed" (under copyright law, that tends to mean captured in a medium that allows it to be perceived, reproduced, or otherwise communicated) it is considered a copy. Copyright law generally considers things like written texts (i.e. transcribing a book onto other sheets of paper) to be copies, but it also includes things like recordings, which are very much nontangible. (although still stored on tangible hardware) Also, note the "either directly or with the aid of a machine or device" section of that description.
The fact you consider DRM to be irrelevant in a conversation about managing legal access to digitally distributed content shows a lot about your understanding of this topic, to say the least.
DRM is highly relevant. If it were not, then all libraries would already be illegally publishing copies under the agreements they sign with publishers when they distribute books through DRM-protected applications like Overdrive or Libby. Legal consequence also does not extend past the original publisher if the intent was clearly not to deliberately allow for further copying. (i.e. if the Internet Archive stated they lent books so users could copy them and later share them with friends, that would be a violation. Instead, they have loan terms, limits, and DRM)
If anything done by a user after the lending of any material, outside of reasonable safeguards (like DRM) was to be considered illegal, then any store would be liable if someone used a kitchen knife to kill someone, and any chemical distributor would be liable if someone in a lab mixed the wrong chemicals together and made an explosion. Liability has an end point, and DRM helps signify that by placing technical restrictions on redistribution of material, while also carrying heavy legal penalties for breaking it, which would not be present if it wasn't applied in the first place.
Publishers should not be able to sue libraries for lending their books, digital, physical, or otherwise. Especially when the publishers could not demonstrate any material harm.
You are actively defending multi-billion dollar publishing companies suing a library for lending content they legally acquired, using faulty interpretations of the law, and deference to lawsuits as a means of judging the morality of actions. You haven't made a single point that wasn't either verifiably untrue, or misinformed.
I would advise you to reevaluate your position.
DRM is relevant to the legal redistribution because that is part of the terms of their license agreement and for no other reason. Their entire lending practice of digital copies is legal because, and only because, they have contracts that specifically determine how they may do so.
It does not in any way alter the nature of blatant illegal copies. It does not make every loan not multiple distinct illegal copies.
I'm actively opposing people telling insane, completely unhinged lies that aren't even loosely connected to reality to validate a position that every single person with a shred of common sense knew was going to get laughed out of court the day they did it and did get laughed out of court. If you tried this case a million times, Internet Archive wouldn't have a chance in any of them.
Petition for changes to the law. Don't lie and pretend the law says what you want it to.
This is simply not true. If someone takes means to prevent illegal action, in a situation where they can choose to either do so, or not do so, taking those means shows they are attempting to prevent any negative legal outcomes.
The Internet Archive was explicitly, voluntarily enacting similar policy to libraries that directly license books from publishers, because they knew that it would show they were making an effort to lend responsibly. To me, it seems they carried on this set of ethics to when they opened up more copies than they originally had on hand, because that was during a time when library branches were becoming physically inaccessible, and physical resources were becoming increasingly hard to access, thus, responsible lending would include effectively making the inaccessible physical copies in other libraries accessible. That part might not be considered legal, but again, who cares? These publishers saw a substantial increase in profits during the time they were supposedly hurt by the Internet Archive, and continue to squeeze traditional libraries for every penny they can get under exploitative lending agreements. What the Internet Archive did was for the objective moral good of society.
If anything's illegal, it's compelling libraries to only license your content directly from you for a higher rate, while trying to discourage them from using the physical copies they can buy once like any other sane person.
I have not misrepresented the law by pretending it says something else. I have given you citations and quotes straight from the letter of the law, directly backing up my claims, while proving your blanket statements that all digitized lending was illegal as patently false.
Petitioning to change the law is not the only way to change it. For instance, I believe piracy from, say, streaming services, is ethical, if those same streaming services are jacking up rates, adding ads, and enshittifying their core product for the sake of making a quick buck. how else are you supposed to change things?
I'm sure you've seen the immense public backlash and legislative attempts to fix the rapidly enshittifying entertainment industry. They haven't worked.
Look, even regardless of all my arguments for how I believe the vast majority of what the Internet Archive did was legal, I don't care if it was. Because, in the end, If you own a book, you should be allowed to let other people read it. If people are losing access to literature, you should be able to make it available to as many people as possible. If companies are rapidly exploiting the public library system and looting it for everything it has, you should be able to offer an alternative.
These publishers do not deserve my, nor your sympathy.
Your arguments read like you believe a DRM-protected ebook file is a verbatim copy that can be freely distributed and used. I just want to clarify that it is not, not even on a technical level. The form of DRM that libraries use is not just a license you agree to. It is an ecryption that turns that ebook into a garbled mess for anyone but the person who borrowed the ebook, during a set timeframe. After that period expires it cannot be decrypted anymore and stays a garbled mess forever, irrevocably ceasing to be a copy.