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posted by chromas on Saturday August 01 2020, @05:08PM   Printer-friendly
from the don't-look-at-the-elephant-in-the-room^W-library dept.

Internet Archive Tells Court its Digital Library is Protected Under Fair Use

The Internet Archive has filed its answer and affirmative defenses in response to a copyright infringement lawsuit filed by a group of publishers. Among other things, IA believes that its work is protected under the doctrine of fair use and the safe harbor provisions of the DMCA.

[...] The statement spends time explaining the process of CDL – Controlled Digital Lending – noting that the Internet Archive provides a digital alternative to traditional libraries carrying physical books. As such, it "poses no new harm to authors or the publishing industry."

[...] "The Internet Archive has made careful efforts to ensure its uses are lawful. The Internet Archive's CDL program is sheltered by the fair use doctrine, buttressed by traditional library protections. Specifically, the project serves the public interest in preservation, access and research—all classic fair use purposes," IA's answer reads.

"As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource."

Internet Archive's Answer and Affirmative Defenses (PDF).

Previously: Internet Archive Suspends E-Book Lending "Waiting Lists" During U.S. National Emergency
Authors Fume as Online Library "Lends" Unlimited Free Books
Publishers Sue the Internet Archive Over its Open Library, Declare it a Pirate Site
Internet Archive Ends "Emergency Library" Early to Appease Publishers
EFF and California Law Firm Durie Tangri Defending Internet Archive from Publisher Lawsuit


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  • (Score: 1, Interesting) by Anonymous Coward on Saturday August 01 2020, @05:31PM (18 children)

    by Anonymous Coward on Saturday August 01 2020, @05:31PM (#1029901)

    "As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource.”

    From what I know the IA originally bought a book and scanned it, and made one copy of the scan available at a time. I've used the service and, just like a normal library, sometimes there is a waiting list before a book becomes available. Then I get to read it in a browser page, which requires a constant 'net connection (I know because a crappy connection caused the web page to lock on occasion). No obvious way to bust the copy protection or snag a local copy for later use.

    As I read this, during the pandemic and library closure, the IA makes the assumption that they can lend out multiple digital copies of a book, because there is a paper copy in some other library. In this case, can they point to a copy of the book in some library (shuttered) for every book they've loaned digitally?

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  • (Score: 0) by Anonymous Coward on Saturday August 01 2020, @05:39PM (3 children)

    by Anonymous Coward on Saturday August 01 2020, @05:39PM (#1029904)

    RIAA, MPAA, and book Publishers all seem to come from the same mafia family.

    • (Score: 5, Interesting) by bzipitidoo on Saturday August 01 2020, @06:00PM (2 children)

      by bzipitidoo (4388) on Saturday August 01 2020, @06:00PM (#1029911) Journal

      Yes, the MAFIAA. They have run a decades long propaganda and terrorist campaign to persuade and bully the public into accepting an incorrect simplification, that being that "proppity is proppity", trying to erase the distinction between the material and the immaterial.

      They are of course raging hypocrites, only too happy to use the advantages of immateriality when it benefits them to do so, while continuing to try to deny us all the fruits of our technological advances. That's the real crime, that if not for the MAFIAA, libraries could be way more digital now, and help bring to the public the incalculable value of greater access to knowledge. The school textbook market is a huge, huge racket, not only driven by sheer greed, but also warped by political messaging. All kinds of groups are constantly trying to insert their biased narratives into material that will be presented to the young as factual.

      • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @09:17AM (1 child)

        by Anonymous Coward on Sunday August 02 2020, @09:17AM (#1030206)

        What I've been pissed off over is I own property too, but I have to pay property tax on mine.

        I have to pay right at 2% of my property value, each year, for the right to say "get off my lawn".

        • (Score: 0) by Anonymous Coward on Monday August 03 2020, @12:05AM

          by Anonymous Coward on Monday August 03 2020, @12:05AM (#1030491)

          > I have to pay right at 2% of my property value, each year,

          If you want to make money with your property you have to make it useful to someone else (ie, rent/lease it, use it to grow food, etc).

          I happen to have written some books and hold IP (copyright), but I don't make anything unless I work out how to sell them...and any income is taxed.

  • (Score: 3, Interesting) by Runaway1956 on Saturday August 01 2020, @05:47PM (3 children)

    by Runaway1956 (2926) Subscriber Badge on Saturday August 01 2020, @05:47PM (#1029907) Homepage Journal

    In this case, can they point to a copy of the book in some library (shuttered) for every book they've loaned digitally?

    It sounds to me like they crossed their T's and dotted their i's before they started. I expect that there are probably enough copies in public libraries around the country, to cover their arses. They would need to point to some case, where there are 12,000 copies of a book in libraries around the country, and some individual wanted the 12,001 copy, which was unavailable, so he had to wait a day. Did they keep records that are that finely detailed? If so, they probably win the case.

    However, if they DID keep records that finely detailed, we have another problem entirely. The alphabet soup in Washington now has a new database which they can subpoena for "evidence".

    --
    Your private safe room in the back of your mind? Trump pooped in it.
    • (Score: 3, Informative) by hendrikboom on Saturday August 01 2020, @06:37PM (2 children)

      by hendrikboom (1125) Subscriber Badge on Saturday August 01 2020, @06:37PM (#1029924) Homepage Journal

      However, if they DID keep records that finely detailed, we have another problem entirely. The alphabet soup in Washington now has a new database which they can subpoena for "evidence".

      With DRM on the copy being read by the archive client, there's no need to know who the client is, because the archive can take it back at any time by breaking the connexion. So there doesn't need to be any record of who the book was made available to -- just when it was made available and for how long. In fact, even this isn't necessary for the lending procedure, but could be used for an audit trail.

      • (Score: 0) by Anonymous Coward on Saturday August 01 2020, @09:46PM (1 child)

        by Anonymous Coward on Saturday August 01 2020, @09:46PM (#1030040)

        Came back to say something similar. Librarians are (as a group) among the strongest defenders of privacy rights. I doubt that IA keeps any user data longer than the current browsing session (but note that this is just my educated guess).

        • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @07:42AM

          by Anonymous Coward on Sunday August 02 2020, @07:42AM (#1030196)

          Makes sense because they have been targeted repeatedly, and often first, throughout history by the various oppressive groups.

  • (Score: 0) by Anonymous Coward on Saturday August 01 2020, @05:51PM (7 children)

    by Anonymous Coward on Saturday August 01 2020, @05:51PM (#1029908)

    who gives a fucking shit?

    • (Score: 2) by bzipitidoo on Saturday August 01 2020, @06:05PM (6 children)

      by bzipitidoo (4388) on Saturday August 01 2020, @06:05PM (#1029916) Journal

      Yes, yes, that's the heart of the matter. Shouldn't have to care that there is a physical copy to match each digital copy that is "loaned" out. It's ridiculous. It's the equivalent of some of those crazy laws from the early days of the automobile, like that you had to have someone walking ahead of your car and waving a red flag to alert people to be ready to calm their horses when the noisy and spooky machine passed. Of course that meant the automobile could not be driven faster than a person can walk, which was probably the real point of that law, making the automobile nigh useless by restricting its speed to a fraction of its capabilities.

      • (Score: 2) by hendrikboom on Saturday August 01 2020, @06:25PM (1 child)

        by hendrikboom (1125) Subscriber Badge on Saturday August 01 2020, @06:25PM (#1029918) Homepage Journal

        And in those days there were likely horses that needed calming and the cars might even have been noisy enough to spook them.

        In Westmount, near where I live now, they require someone to walk in front of the huge snowblowers that are used to clear winter snow from the streets. The purpose? To make sure there are no children playing in the snowbanks being cleared. A lesson learned form bitter, bloody experience.

        -- hendrik

        • (Score: 1, Funny) by Anonymous Coward on Saturday August 01 2020, @06:34PM

          by Anonymous Coward on Saturday August 01 2020, @06:34PM (#1029922)

          I always dispose of my bodies in snow drifts. I won't dump any in Westmount!

      • (Score: 2) by hendrikboom on Saturday August 01 2020, @06:31PM (1 child)

        by hendrikboom (1125) Subscriber Badge on Saturday August 01 2020, @06:31PM (#1029920) Homepage Journal

        There is a tradition of interlibrary loan, and there are enough libraries with computerized catalogs that a kind of virtual interlibrary loan could be set up. The archive would inquire with remote libraries whether their particular copy of a book had been lent out and if not, lend it out on their behalf. Whether any of this tech could be adapted and deployed fast enough to deal with the coronavirus emergency is, of course, another matter.

        -- hendrik

        • (Score: 1, Funny) by Anonymous Coward on Saturday August 01 2020, @06:35PM

          by Anonymous Coward on Saturday August 01 2020, @06:35PM (#1029923)

          If they find that they don't have enough copies, I've pirated enough books to make up the difference.

      • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @11:34PM (1 child)

        by Anonymous Coward on Sunday August 02 2020, @11:34PM (#1030484)

        I could just imagine the fun you could have had in those early days with a good loud Harley, upsetting stagecoaches full of fussy ladies.

        • (Score: 0) by Anonymous Coward on Monday August 03 2020, @12:09AM

          by Anonymous Coward on Monday August 03 2020, @12:09AM (#1030493)

          > ...fun you could have had in those early days with a good loud Harley,

          Unless your Harley has knobbies, it's probably just going to get stuck in the mud, and you might engage a horse owner to pull you out.
          Carriages and early buggy cars had tall wheels to stay above the mud.

  • (Score: 1, Troll) by wisnoskij on Saturday August 01 2020, @09:51PM (1 child)

    by wisnoskij (5149) <{jonathonwisnoski} {at} {gmail.com}> on Saturday August 01 2020, @09:51PM (#1030043)

    What should it matter? Who cares if some library in illinois or liberia owns a copy of a book it is legally able to lend out, but currently has not. The IA does not own this book. Are you/they implying that some sort of contract was reached where they share some form of co ownership? I do not know how the law views this, but it makes no sense to me, similarly to how theaters pay more than 12 bucks to shown the licence to show a movie to thousands, an internet monopoly can't just buy a handful fo books and then lend them out ot the world. We currently have the technology where anyone with decent funding could give everyone in the world access to every book, tv show, movie, and video game while using 1/1000 the number of copies as the world currently uses. Google could turn around and tomorrow just give everyone in the world access to every book for free. Every author in the world would just have to work for .1% of their previous wage, in most cases this would be well under minimum wage.

    That said, I have never encountered this on the IA, the site is full of pirated materials I have downloaded many books and video games off of it over the years and you do not have to give them back. My understanding is that AI is completely exempt, but everyone who downloads these copyrighted works are still pirates.

    • (Score: 0) by Anonymous Coward on Sunday August 02 2020, @12:39AM

      by Anonymous Coward on Sunday August 02 2020, @12:39AM (#1030100)

      From what I had heard about the whole thing, it's unlikely that they did any research at all into the legality of what they were doing before they started. Whether or not they should be allowed to make those works available for free during the pandemic, there appears to be no legal basis in doing so under the law as it is currently written.

      This is an extremely risky way to address the lawsuit as they could be on the hook for more money than exists in the entire world based upon how statutory damages work. If Jammie Thomas-Rasset had to pay out $222k for just 24 songs, imagine how much they'd have to pay for this amount. And in the Thomas-Rasset case they couldn't even prove that the files had ever been on her computer.