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Preliminary Court Setback for Libraries and Digital Lending
The Internet Archive has published a post about their ongoing fight in the lower courts over Controlled Digital Lending (CDL), specifically from the case Hachette v Internet Archive. This potentially affects all libraries with digital resources and the Internet Archive will appeal the court's decision.
Today's lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve. This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.
But it’s not over—we will keep fighting for the traditional right of libraries to own, lend, and preserve books. We will be appealing the judgment and encourage everyone to come together as a community to support libraries against this attack by corporate publishers.
The Electronic Frontier Foundaion (EFF) pointed out that libraries have already paid publishers billions of dollars for their print collections which are being digitized at great expense as means of preserving these slowly decaying artifacts. CDL helps make full use of the books that the public have already bought and paid for in their libraries. Gizmodo had a piece a few days ago, giving a heads up about this setback: Internet Archive Faces Uphill Battle in Lawsuit Over Its Free Digital Library.
Hachette and several other publishers are fighting the Internet Archive in court to stop the practice of CDL. Basically, CDL is a model where artificial restrictions are imposed to create artificial scarcity of digital resources in emulation of the old model based on physical artifacts. This attack on basic library service is just the latest in decades of such attacks. Glyn Moody provides some context about other, long-term general attempts to remove libraries from the picture.
The Internet Archive Has Lost its First Fight to Scan and Lend E-books Like a Library
The Internet Archive has lost its first fight to scan and lend e-books like a library:
A federal judge has ruled against the Internet Archive in Hachette v. Internet Archive,a lawsuit brought against it by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library.
Judge John G. Koeltl decided that the Internet Archive had done nothing more than create "derivative works," and so would have needed authorization from the books' copyright holders — the publishers — before lending them out through its National Emergency Library program.
[...] In his ruling, Judge Koetl considered whether the Internet Archive was operating under the principle of Fair Use, which previously protected a digital book preservation project by Google Books and HathiTrust in 2014, among other users. Fair Use considers whether using a copyrighted work is good for the public, how much it'll impact the copyright holder, how much of the work has been copied, and whether the use has "transformed" a copyrighted thing into something new, among other things.
But Koetl wrote that any "alleged benefits" from the Internet Archive's library "cannot outweigh the market harm to the publishers," declares that "there is nothing transformative about [Internet Archive's] copying and unauthorized lending," and that copying these books doesn't provide "criticism, commentary, or information about them." He notes that the Google Books use was found "transformative" because it created a searchable database instead of simply publishing copies of books on the internet.
[...] The Internet Archive says it will continue acting as a library in other ways, despite the decision. "This case does not challenge many of the services we provide with digitized books including interlibrary loan, citation linking, access for the print-disabled, text and data mining, purchasing ebooks, and ongoing donation and preservation of books," writes Freeland.
"The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent," Maria A. Pallante, president and CEO of the Association of American Publishers, said in a statement. "In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful eBook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests."
Hatchette job
Internet Archive Violated Publisher Copyrights by Lending Ebooks, Court Rules
The nonprofit said it would appeal the decision:
A federal judge has ruled against the Internet Archive in its high-profile case against a group of four US publishers led by Hachette Book Group. Per Reuters, Judge John G. Koeltl declared on Friday the nonprofit had infringed on the group's copyrights by lending out digitally scanned copies of their books.
The lawsuit originated from the Internet Archive's decision to launch the "National Emergency Library" during the early days of the pandemic. The program saw the organization offer more than 1.4 million free ebooks, including copyrighted works, in response to libraries worldwide closing their doors due to coronavirus lockdown measures.
[...] Going into this week's trial, the Internet Archive argued the initiative was protected by the principle of Fair Use, which allows the unlicensed use of copyrighted works under some circumstances. As The Verge notes, HathiTrust, an offshoot of the Google Books Search project, successfully used a similar argument in 2014 to fend off a legal challenge from The Authors Guild. However, Judge Koeltl rejected the Internet Archive's stance, declaring "there is nothing transformative" about lending unauthorized copies of books. "Although [the Internet Archive] has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse," he wrote. Maria Pallante, the president and CEO of the Association of American Publishers, said the ruling "underscored the importance of authors, publishers, and creative markets in a global society."
Previously: Internet Archive Faces Uphill Battle in Lawsuit Over its Free Digital Library
Original Submission #1 Original Submission #2 Original Submission #3
(Score: 4, Insightful) by Mykl on Tuesday March 28 2023, @05:28AM (2 children)
I get that the publishers are jerks and that Copyright is a twisted perversion of its original intent. But there do have to be limits to how many instances of a copyrighted work can be 'lent' out at any given time in order to avoid a total collapse of the model. Why would anybody ever bother to buy a digital copy of a novel if there are unlimited versions of it available for free?
My understanding is that the Internet Archive weren't placing any limits on the number of copies that they lent out, effectively making them a (they thought) legal torrent site.
(Score: 3, Informative) by canopic jug on Tuesday March 28 2023, @08:03AM (1 child)
According to the many articles on the decision, the Internet Archive is lending at a 1:1 ratio. If they have one copy of the book, only one person can mark it as checked out and read it at a time. It has to be checked back in before another person can get at it. This is exactly as how it has gone for ages in brick and mortar libraries. I find the confusion, intentional or not, on the matter frustrating. We have rights, they are being eroded because the public does not understand ICT even a little. What matter if things are digital or physical?
Money is not free speech. Elections should not be auctions.
(Score: 5, Interesting) by tizan on Tuesday March 28 2023, @09:38PM
Indeed ...they are lending digital copies of what they get donated physically.
The whole noise is that publishing companies want libraries to license their digital version which they
extort libraries for.
What i understand IA did was they got books donated ...they made scans of it and lend the scan on the number of donated books they got...so no
free redistribution...but lending a digital copy of a physically donated book. the whole fight is who is allowed to scan a book and lend the digital version.
For a library
Lending a physical book ===legal
Lending a digital book (digitized by the publisher) after paying a licensing fee === legal
Scanning a physical book and lending the scan (1:1 on how many physical copies the library holds) === not legal
This is like lipton saying you cannot make iced-tea from tea leaves you bought from them...i.e you have to buy their bottled iced-tea or if you buy tea leaves you can make hot tea...but do not make iced-tea because they are in the business of making iced-tea.
(Score: 3, Interesting) by Anonymous Coward on Tuesday March 28 2023, @05:43AM (3 children)
https://www.reuters.com/legal/us-judge-rules-internet-archives-digital-book-lending-violates-copyrights-2023-03-25/ [reuters.com]
So it wasn't a "library style" case of IA lending one digital copy per copy IA owned. It was more like photocopying the book and lending out multiple copies.
Do you want corporations to be able to ignore copyrights and licenses including GPL etc and say their distribution of substantial copies without following the terms is under fair use?
(Score: 0) by Anonymous Coward on Tuesday March 28 2023, @01:39PM (1 child)
This timeline matches my experience using the IA Open Library -- with the switch to more than one copy of an e-book available simultaneously.
But there were other changes as well:
+ when I started using OL pre-pandemic I would check out a book for an extended period (week or two? Forgot exact length). Sometimes when someone else had the book I'd wait for some days before it became available, just like a normal library. If I was done before the end of my loan I'd be a nice guy and return it early in case anyone else was in line.
+ somewhere during the pandemic the loan term changed to one hour. Pretty hard to read a book in an hour, so there would be lots of renewals--but the renewals were always available for the titles I had on loan.
In both cases, it seems to me that the book scan is streamed. I have no local storage possible except local buffering of a few pages. Also, the book is presented as a bit image. OL must have an OCR version because they allow searching within the current book, but I don't see anyway to download the OCR version--so making a copy of a book would be tedious (or require automation of screen-snipping & page-turning software).
** Update, just looked at a book that I'd been reading a few weeks ago and didn't finish (left the browser tab open). The top of the OL screen now shows, "Renewable every hour, pending availability." -- I don't recall that from a few weeks ago. Perhaps this is a reaction to the court decision and they are back to only loaning out one e-book for each paper book they own?
(Score: 2) by tizan on Tuesday March 28 2023, @09:43PM
That was always the case form me. even during pandemic. The book streaming was available pending renewal.
(Score: 3, Interesting) by tizan on Tuesday March 28 2023, @09:49PM
Forget the en masse part which may have happened over a short time during the pandemic.
They are mixing everything but the real point they want to put in law is you cannot lend a digital copy of a physical book....you buy a physical book...you cannot scan it ..and lend the scan ...that is the point they want to win and they want to make sure libraries cannot use. Nobody is going to argue against distributing infinite copies.