The Internet Archive has lost its appeal in a fight to lend out scanned ebooks without the approval of publishers. In a decision on Wednesday, the Second Circuit Court of Appeals ruled that permitting the Internet Archive’s digital library would “allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works.”
The decision is another blow to the nonprofit in the Hachette v. Internet Archive case. In 2020, four major publishers — Hachette, Penguin Random House, Wiley, and HarperCollins — sued the Internet Archive over claims its digital library constitutes “willful digital piracy on an industrial scale.”
↫ Emma Roth
If you’re a library and scan books and offer a lending service, you’re committing “willful digital piracy on an industrial scale”. If you scan the entire goddamn internet without any regard for licensing or copyright and regurgitate chunks of it on command, you’re a visionary, a revolutionary, a genius.
Make it make sense.
What about books that are no longer edited ?
Kochise
I don’t think copyright law has a provision for this. But in the real world if the author is gone and nobody is left publishing the book it is seems doubtful that anyone with standing would sue. But any right holders would be entitled to sue until until copyright expires.
https://www.copyright.gov/help/faq/faq-duration.html
Google won it’s case to scan books without permission, but they haven’t been playing as fast and loose with downstream dissemination. as internet archive have.
https://www.arl.org/blog/second-circuit-affirms-fair-use-in-google-books-case/
Honestly I think that’s been their downfall. They felt entitled to violate the 1:1 lending principal during covid for the public good. This may have been done with good intentions, but it crossed a fundamental legal line between lending and “publishing” new copies.
The court ruling today seems to backstep further though, beyond the 1:1 lending principal. Publishers want control over digital libraries and this case will grant them that. Just as netflix wasn’t allowed to stream the DVDs it had in it’s collection (even with respect to 1:1 lending), libraries going forward won’t be able to stream the books they have in their collection. This is a huge setback for electronic libraries. This may have immediate consequences for those that are internet archive partners, but also those who run their own ebook lending on the legal basis that it was fair may be vulnerable when facing this new case law.
This feels like a self-made problem. IA made an ideological decision to share things they knew they didn’t have rights to,in part to bring it to court. As if often the case, they assumed they would win the legal battle that followed. Sadly they haven’t and that means we now are in a worse position than before, as there is clear legal precident. Multiple electronic lending libraries will now have to change their practices as a result.
Also, publishers were willing to turn a blind eye to the 1:1 lending thing, most likely to avoid a potential outcome in court that would be unfavorable to them. As long as the Internet Archive was sticking to the “1 digital copy per physical book” doctrine, they were fine. But nope, they had to throw away the rulebook completely during COVID-19, for reasons only they understand. Idiots.
As a result, not only the 1:1 lending thing is going away, but donation money meant to keep the Internet Archive running (including the Wayback Machine) will be pissed away on settlements.
Did I say idiots? I did.
kurkosdr,
It is likely this could lead to 1:1 lending eventually become a rule. But it depends on them pushing the right narrative, and Supreme Court agreeing with that.
That being said, yes, I like Internet Archive, and I don’t want them to lose, but they have been pushing their luck a lot.
Hey, look Beavis! He said regurgitate…. Huh huh, huh huh, huh huh
People think that copyright protects intellectual value but it only protects profiting from it, especially in the USA. Preservation, education, critique, fair use in general is just a waiver to the core insanity. Henceforth, IP hoarders do not mind if everybody can learn everything about book “X”, they need guarantees that only they can sell the text of that book and rights to allow filming “X, the movie”, “the X series”, and production of “X on ice”. For them, gen-AI is only a way to acquire more IP faster & cheaper, so they are all for it.
I wonder now what would happen if IA would just use a LLM to re-write everything they’ve scanned and put the results in public domain (;
mbq,
Interesting question.
If a human did that, it would be fair game. People have been doing that forever, and the courts have upheld the notion that expressions are copyrighted, but not general ideas.
https://www.today.com/popculture/da-vinci-doesn-t-violate-author-s-copyright-wbna8841288
As I remember Dan Brown copied many ideas (and made gobs of money in the process), but it’s not copyright infringement. Some people might see this as unfair, but if ideas could be owned, then authors would have to acquire idea licenses and pay royalties even in their own works because the ideas they need are locked behind an IP minefield. There would be more expensive lawsuits and all the problems of the patent system would now apply to art, manuscripts, movies, etc. Thankfully, copyright law has leaned towards allowing new expressions even when they share ideas, which I think it the best approach.
AI complicates things because it’s does things that aren’t otherwise illegal when done by humans. The objection over AI is that it mechanizes and scales up the process to the point where the marginal cost to generate new expressions approaches zero. The result is that many humans are potentially going to become redundant in the future. We as a society need to determine how to handle this. I worry that this won’t be handled in favor of the middle class, because let’s face it, it usually isn’t.
Personally I am conflicted over the role AI should serve. History has not bode well for those who compete against automation and mechanization. Even if we wanted to pass laws to this effect, I’m convinced it would work and I think it would leave us less competitive in the long run. Part of me wants to advocate for a new way of life, not based so heavily on work. This way AI and automation are good, we just need to distribute their benefits! With technology providing for our basic needs, paradise could be at our fingertips. However I know this is a wishful fiction and that in reality AI could end up further fracturing society into haves and have-nots.
Edit: I’m ^not^ convinced it would work and I think it would leave us less competitive in the long run.
Yes, this ruling makes (legal) sense. At least, more or less, as I understand things. The Internet Archive was not acting the same fashion normal libraries do.
Background: https://guides.library.oregonstate.edu/copyright/libraries
In the US at least, Doctrine of First Sale overrides rights of the copyright holder/publisher. You own a physical book, you can do what you like. Resell it, loan it, duplicate (a limited number of times) it for your own use, and so on. For libraries in specific, there are rules about how many copies can be made, and when, why, and how copies can be provided to the public when the work in question is not available (at all or for a ‘reasonable price’ which I don’t currently have the specifics on).
What the Internet Archive actually did was get a copy of a work, scan it, and make it available for loan with a checkout system. What they did not do was take into account that the rules for ebooks are not quite the same as for paper. Apparently they did not seek permission from copyright holders to distribute electronic copies … and they did not restrict themselves to checkouts equaling the number of physical copies on-hand. This restriction had been part of their initial planning, but was greatly relaxed if not entirely removed at some point. Apparently there’s a much better chance they’d have been able get this through the courts if they’d stuck with that restriction.
(If anyone sees where I’ve gotten something wrong, please provide links to info, thanks!)
Enturbulated,
IA had temporarily removed lending restrictions during covid. Instead of 1:1, they used something like 10 loans to one physical book, which they had no legal right to do. I think it was a serious lack of judgement for IA, the repercussions of which may have set the dominoes falling. That was so stupid. But my understanding is that they stopped it and have been operating under one loan per book again since then. Reporting seems to suggest this is the case as well.
https://arstechnica.com/tech-policy/2024/09/internet-archives-e-book-lending-is-not-fair-use-appeals-court-rules/
I agree with the internet archive on this point. It’s not as though they were scanning the books and then uploading them to file distribution networks for everyone to download and keep. Their ebook loan program worked like the physical library does, but online. They were only loaning out books that the library paid for, one load per purchased book. It’s worth nothing that library rights are specifically codified into copyright law. They still have to purchase their copies but libraries don’t need to get permission or pay royalties.
https://guides.library.oregonstate.edu/copyright/libraries
So the fight here is over whether library rights should be extend online or if publishers have the right to require licenses for online sharing. With this court ruling, it seems like the publishers made a big win for themselves. To the extent that physical books are becoming obsolete and ebooks are the future, this ruling may be very draconian for libraries. Assuming the worst, publishers keep getting their way in court and congress doesn’t step to modernize library protections by law, it seems quite possible that congressionally authorized public libraries may become obsolete with the replacement being publisher authorized rental services akin to netflix, disney+, etc for books.
I wouldn’t be surprised if future ebooks rentals are eventually paid for by ads like everything else. This case could be pivotal to such a future.by permitting publishers to establish terms and royalties for online readers.
“Enjoying your copy of One Fish Two Fish Red Fish Blue Fish? Afterwards how about a McDonalds burger to make your day!”
I’m not in advertising, but you get the idea, haha.
I threw this into chatgpt…oh my god what a hellscape.
I don’t think libraries in the United states can make copies, or at least in practice they never do. They do enter into contracts with publishers to allow for digital copies to be rented out, and they pay per copy available to rent. Source ( my librarian friends who deal with this).
Fun bonus library fact: My local library has possible the largest collection recorded harp music in the world. Why, you ask? Because the librarian in charge of purchasing music that could be lent out, was given only one directive Do not purchase top 40 “popular music”. And she loved the harp, so Harp music we have. I’ve also been exposed to an extreme amount of educational VHS Tapes, that scar my psyche to this day. You think things on the internet are strange? You have no idea of the insane things that are on those tapes…
Apparently, you missed the lawsuit from the New York Times against OpenAI because ChatGPT returned complete verbatim copies of New York Times articles.
And this is how it makes sense: If the chunks regurgitated verbatim are small, it falls under fair use, if they aren’t, it’s copyright infringement.
Also, this biased reporting on LLMs is verging on Thom using this website as his personal soapbox to vent about LLMs leaving him without a job. It just reeks of self-interest that concerns nobody else.
“Also, this biased reporting on LLMs is verging on Thom using this website as his personal soapbox to vent about LLMs leaving him without a job. It just reeks of self-interest that concerns nobody else.”
Exactly.
Disagree, it concerns us all. The law here was correctly applied by all honest legal commentators, but Thom is point out something bigger here ( I think). The law only protects those with money. If you get your copyright abused in any way and you want to file a lawsuit, you have to put down major $$$ and be able to prove that the monetary damages you’ve incurred will recoup the $$$ it takes to fight them. Its a very uneven playing field.
Bill Shooter of Bul Platinum Prime Supporter
The copyright law is from 1976 and it does not explicitly allow or deny ebook lending. The law explicitly allows libraries to lend books without permission and there’s no law requiring libraries to license ebooks from publishers, it just doesn’t exist. There’s just no mention of digitized books at all.
https://www.copyright.gov/policy/section108/
Given the ambiguity, the role of the court is to extrapolate the existing law as is to cover new technology. To this end it would be completely reasonable to assume that a library applying the 1976 copyright law to ebooks in good faith complies with both the spirit and the text of copyright law. The status quo was sound and I do think this would have been the end of it. Enter internet archive…in a disappointing move, they started deliberately lending out more books than they owned. This case may be karma for that. What’s unfortunate is that now it becomes case law harming other libraries and their patrons until congress amend copyright law.
I love the Internet Archive but really this is no surprise. Libraries are not allowed to photocopy books and lend those out either. And when it comes to eBooks, real libraries need agreement in advance and have to pay licensing fees. The Internet Archive was not acting as a library. Again, even with physical copies, if I started a business where I mailed you photocopies of books in the mail, I would end up with a copyright lawsuit against me pretty quickly. Netflix did not start their business shipping people duplicated DVDs. They cannot just create “free copies” even now. This is all completely settled law and I am not sure why we should be shocked by it.
The AI training issue is a different question. It is also not at all a given that these companies are allowed to do what you say or that there will not be consequences. The difference is, this is all new territory and not at all settled law. It will take some time.
Many people missing the point: I don’t think even the internet archive itself was under any illusions that current legislation allowed for their providing the lending in the manner that they did.
The big question this case raises, which also got plenty of advertisement now, is whether they *should* be allowed to.
Mote,
I agree this is what we need to talk about. There’s no question that publishers want to get set licensing terms and get royalties for electronic books, but why should they deserve it? When it comes to physical books libraries had a right to exist and serve the community without permission, without a license, without royalties. If publishers had their way, they would get royalties for every physical book loaned too, but up to now society has ruled that a library’s right to lend out books trumps a publisher’s right to issue library terms of service. Do we really want to abandon this for electronic books going forward?
We should reflect on the purpose of copyrights in the first place. The granting of copyrights wasn’t meant as an ends onto itself, but rather an incentive for new works to be created. Authors who wouldn’t otherwise publish anything count become incentivized. This makes sense to me, as a software developer copyrights are important to us too! But every time we extend copyrights, now 70 years after the author’s death, it becomes pretty obvious that the intention is not about incentivizing creation so much as lawmakers pandering to corporate interests. Do we really expect anyone to believe that Disney/Microsoft/Beyonce/etc wouldn’t be creating anything if copyright didn’t last so long? No, that’s ridiculous on it’s face. I feel we’re at another watershed moment with digital books, we’re about to make copyright stronger once again for what? Do copyright holders need more incentives to do what they were already doing anyway?
Assuming this case law sticks and we do abandon library lending rights for electronic books (ie lending without having to ask publishers for permission), it’s not hard to predict where things will be headed. For their part, publishers will push the adobe model: no more pay to own, forced subscriptions. Naturally publishers will set prices to be more profitable. Faced with ongoing fees & royalties, the new costs associated with loaning ebooks have to be paid for somehow: pass them onto patrons, resort to advertising, or absorb these new royalties in library budgets. For what it’s worth, our local library has not been able to pass new funding in budget votes and I think many would be in the same boat. We could shrug it off and say tough luck, but is it really progress for society or is it regressive?
Edit: sorry about the wall of text, had a lot to say about it, haha.
“without royalties”
Libraries pay royalties to authors if someone borrows their books.
Marshal Jim Raynor,
I guess things are different elsewhere, but that’s not the case in the US. A portion of sales obviously goes to the author as royalties, but once a library owns a book it doesn’t owe royalties to loan it out. Perhaps they’ll buy them again if they need to be replaced, but that’s for a new copy and not specifically to pay royalties.
https://wordsmitten.com/do-authors-make-money-from-libraries/
https://www.perspectivesonreading.com/editorial-what-every-author-and-agent-should-know-about-library-sales-of-their-titles/
Worrying…
Lennie,
+1
You’ve said what I feel with one word.
It has been on my list of worrying for many months, like Mozilla Firefox and the browser engine ‘market’ in general. Not to mention Google making their search intentionally worse.
The times they are changing…
neocapitalism really is on its last leg..