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posted by martyb on Monday June 29 2020, @07:28PM   Printer-friendly
from the when-elephants-fight,-the-grass-gets-trampled dept.

EFF & Heavyweight Legal Team Will Defend Internet Archive's Digital Library Against Publishers

The EFF has revealed it is teaming up with law firm Durie Tangri to defend the Internet Archive against a lawsuit targeting its Open Library. According to court filings, the impending storm is shaping up to be a battle of the giants, with opposing attorneys having previously defended Google in book scanning cases and won a $1bn verdict for the RIAA against ISP Cox.

In March and faced with the chaos caused by the coronavirus pandemic, the Internet Archive (IA) launched its National Emergency Library (NEL). Built on its existing Open Library, the NEL provided users with unlimited borrowing of more than a million books, something which the IA hoped would help "displaced learners" restricted by quarantine measures.

After making a lot of noise in opposition to both the Open and Emergency libraries, publishers Hachette, HarperCollins, John Wiley and Penguin Random House filed a massive copyright infringement lawsuit against the Internet Archive.

[...] Last evening the EFF announced that it is joining forces with California-based law firm Durie Tangri to defend the Internet Archive against a lawsuit which they say is a threat to IA's Controlled Digital Lending (CDL) program. The CDL program allows people to check out scanned copies of books for which the IA and its partners can produce physically-owned copies. The publishers clearly have a major problem with the system but according to IA and EFF, the service is no different from that offered by other libraries. "EFF is proud to stand with the Archive and protect this important public service," says EFF Legal Director Corynne McSherry.

Previously: Internet Archive Suspends E-Book Lending "Waiting Lists" During U.S. National Emergency
Authors Fume as Online Library "Lends" Unlimited Free Books
University Libraries Offer Online "Lending" of Scanned In-Copyright Books
Publishers Sue the Internet Archive Over its Open Library, Declare it a Pirate Site
Internet Archive Ends "Emergency Library" Early to Appease Publishers

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  • (Score: 1, Insightful) by Anonymous Coward on Monday June 29 2020, @07:41PM (9 children)

    by Anonymous Coward on Monday June 29 2020, @07:41PM (#1014226)

    It's really hard to see how the IA is defensible here. Even the original program seemed legally questionable. Transforming a protected work from one medium to another is making a copy, lending a physical book is not. Unlimited lending doesn't seem to have any real distinction from just giving away a copy.

    So I just assumed that the IA will lose this and I think that will be the right ruling. The more important question is what impact this will have on the overall operation of the IA, which is an incredibly important and valuable resource for the entire internet.

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  • (Score: 2) by takyon on Monday June 29 2020, @07:59PM

    by takyon (881) <> on Monday June 29 2020, @07:59PM (#1014229) Journal

    It's really hard to see how the IA is defensible here.

    Might be worth skimming the motion to dismiss or other IA-filed documents as they come out. One of them should contain every conceivable argument in favor of the apparent infringement, if the lawyers are doing their jobs right.

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  • (Score: 3, Interesting) by Anonymous Coward on Monday June 29 2020, @09:00PM (6 children)

    by Anonymous Coward on Monday June 29 2020, @09:00PM (#1014244)

    It's really hard to see how the IA is defensible here.

    It's not that hard. The public has paid for x-number of books, stored in libraries and loaned out to the public. The government came along and locked away all those books for an unspecified period of time. The locking away wasn't unreasonable, given the pandemic, but thanks to the wonders of the internet, digital loaning could occur: the public could continue to enjoy the use of a resource they had paid for, with the Internet Archive acting as a digital proxy for the content. The Internet Archive made it clear that they were only granting short-term access to the books, loaning the digital content out only while the physical books remained inaccessible.

    Were the publishers at all interested in doing the right thing, they might have provided numbers of books that libraries were known to have purchased so that IA could set limits on the number of each title loaned. Even without true counts, they could have worked with IA to establish reasonable estimates and IA could have used those as loan limits.

    Instead, the publishers went straight to the nuclear option, suing IA for having the gall to grant the public access to resources that they had paid for.

    • (Score: 3, Insightful) by TheReaperD on Monday June 29 2020, @10:34PM (1 child)

      by TheReaperD (5556) on Monday June 29 2020, @10:34PM (#1014283)

      Trying to force people to pay for the same thing 2, 3 or 4 times is now standard operating procedure by the copyright cartels (aka publishers, in this instance, but applies to the industry as a whole). They decided that you paying once for an item is no longer sufficient. It won't be long until they start demanding a full repeal of the first sale doctrine [USA law backed by many court cases that once you pay for something, it's yours and the publisher no longer has rights to it] instead of just the limitations put on it by the DCMA [Digital Millennium Copyright Act] and demand that you start paying per-item subscription fees to all content, including content you already own.

      Ad eundum quo nemo ante iit
      • (Score: 2) by DannyB on Tuesday June 30 2020, @04:59PM

        by DannyB (5839) Subscriber Badge on Tuesday June 30 2020, @04:59PM (#1014573) Journal

        demand that you start paying . . . including content you already own.

        Including content that you yourself created. Or that is a nature recording.

        To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
    • (Score: 1) by beernutz on Monday June 29 2020, @10:44PM (3 children)

      by beernutz (4365) on Monday June 29 2020, @10:44PM (#1014286)

      I think the counter-point that will be made has to do with regular libraries still offering online lending even while they were closed. While I wholeheartedly support the IA, and the incredibly important work they do, I really fear they will get stomped on this one. 8(

      • (Score: 3, Insightful) by takyon on Monday June 29 2020, @11:05PM (1 child)

        by takyon (881) <> on Monday June 29 2020, @11:05PM (#1014293) Journal

        Even if there is a strong legal basis for what AC says, and I doubt there is, the decision is up to a number of judges of varying quality and opinions.

        On the plus side, if IA isn't dealt a death blow, they might end up weakening copyright instead.

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        • (Score: 1) by fustakrakich on Tuesday June 30 2020, @12:50AM

          by fustakrakich (6150) on Tuesday June 30 2020, @12:50AM (#1014324) Journal

          I hope there are many widely scattered mirrors to make it more robust

          La politica e i criminali sono la stessa cosa..
      • (Score: 2) by Runaway1956 on Monday June 29 2020, @11:38PM

        by Runaway1956 (2926) Subscriber Badge on Monday June 29 2020, @11:38PM (#1014306) Journal

        This is a political issue, as much, or more than, it is a legal issue. You can find the right judge to rule in favor of IA, you can find the right judge to rule against IA, at each and every step of the legal process. But, politics? I think IA is counting on support from EFF and others - and I think they are counting on some kind of grass roots thing happening.

        With politics, you may very well lose the legal battle, but win the cultural war in the process.

        It's anybody's guess at this point.

  • (Score: 2) by bzipitidoo on Monday June 29 2020, @10:51PM

    by bzipitidoo (4388) on Monday June 29 2020, @10:51PM (#1014288) Journal

    The indefensible is the publisher's preferred business model that is founded upon a scarcity that is wholly artificial. If the pandemic does nothing else good, it will at the least have exposed just how easy it is to forego the scarcity: do nothing. That's far easier than trying to enforce it, which requires all kinds of awkward and just plain odd and exhausting work to monitor, track, count, and process requests for access, as well as the impossible job of enforcement upon the unwilling.

    And the reasons for desiring the scarcity are very bad. If it was possible to force scarcity of knowledge upon people, and totally control their education, it would be possible to found upon that a tyranny so evil that the Dark Ages would look enlightened by comparison.

    You doubt the IA is within the law? It is far likelier that the publishers are overreaching. Again. They've done it so many times now, advanced ridiculously extreme interpretations of copyright, that there is little reason to show their notions respect, as you are apparently doing. They may be old and established, but that doesn't automatically make them venerable. To the contrary, it makes them highly suspect.

    The world has changed. Copying now belongs to the masses. Yet publishers refuse to accept this new reality, instead feeling they're such grievous victims, of piracy (itself a very intentionally pejorative use), and one thing we've seen is that those who imagine themselves as horribly wronged are often the worst bullies, vandals, and criminals, thinking their imagined sufferings somehow justify their own excesses. They're still in the first stages of grief: denial and anger.

    In short, publishers are Kopyright Karens.