New York federal judge shoots down online e-book lending (Internet Archive)

[Nevilledog]

https://www.courthousenews.com/new-york-federal-judge-shoots-down-online-e-book-lending/

NEW YORK — The online library known as the Internet Archive took a big hit on Friday when a federal judge in New York granted summary judgment to a group of publishers who said that its lending practices infringe on copyrights.

Judge John Koeltl of the Southern District of New York found that the Archive’s Open Libraries project, under which users could “borrow” purchased and scanned e-books — one user per book at a time — did not qualify as fair use.

“IA’s distribution of e-book copies of the works in suit without a license deprives the publishers of revenues to which they are entitled as the copyright holders,” Koeltl, a Clinton appointee, wrote in his 47-page ruling.

He noted that if the Archive’s practices became widespread, they could seriously threaten the potential market for copyrighted works.

The Internet Archive was founded in 1996 with the goal of documenting online history by archiving public web pages on its “Wayback Machine.” Established as a nonprofit with the stated objective of providing “universal access to all knowledge,” it has since extended its collections to include information that didn’t originate on the internet, including books, movies, software and audio files.

The Archive’s inclusion of books in its collection and practice of lending scanned copies to patrons gained it the less-than-friendly attention of Hachette Book Group, HarperCollins Publishers, Penguin Random House and Wiley, four of the largest book publishers in the U.S. The publishers sued the Archive in 2020, alleging that it had improperly scanned and distributed print copies of 127 of their books.

*snip*

[usonian]

1. Some more info. Updated.

Last edited Sat Mar 25, 2023, 03:50 AM - Edit history (1)

This applies only to books that the Internet Archive has purchased and scanned. They loan out one digital copy at a time.

The bulk of the Internet Archive consists of public domain and off-copyright works, as well as preserved copies of web pages scanned regularly.

The big potential downside is that if there is a giant fine or settlement, the rest of the archive, which is entirely public-domain, off-copyright works, could suffer badly from lack of funds.

There is a comment thread of some 333 posts as of right now at Hacker News.
More than you ever wanted to know (it does digress at times).
https://news.ycombinator.com/item?id=35297117

Update: The Verge
https://www.theverge.com/2023/3/24/23655804/internet-archive-hatchette-publisher-ebook-library-lawsuit

The Internet Archive says it will appeal. “Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve,” Chris Freeland, the director of Open Libraries at the Internet Archive, writes in a blog post. “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.”
...
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.

[lostnfound]

2. Time to donate to Internet Archive. It BOUGHT the book, loans ONE at a time

Damn corporations too big for their britches.

[Delphinus]

3. Agreed.

I've used them for various things when my own local library didn't have what I needed.

[Hermit-The-Prog]

4. Imagine an individual doing the same...

Corporations want royalties every time a book is loaned. That's the whole point of 'e-books' and other Digital Restrictions Management.

Next up, you owe Huge Corporation for thinking about their intellectual property.

[Hortensis]

6. Imagine YOU wrote a book and Archive was providing it free to the world.

Damn bills. Damn kids expecting college educations.

Damn dreams of being able to afford to write another.

[ret5hd]

7. If the book was purchased and loaned...

one at a time, what exactly would be your complaint?

[Happy Hoosier]

12. It's perfectly legal to lend a book you bought.

The question here, I think, is how the IA you s ensuring copies of the book are not retained at the end of the loan period.

[Hortensis]

19. Us, to friends and family, sure. But what IA's been doing is illegal.

And doing real harm: IA and others like it are lending popular, in-demand books "to one person at a time" to thousands of people, some of whom would have purchased them. And they're doing it with increasing thousands of books. It's become a serious threat to authors and publishers.

The federal court just affirmed that copyright law applies. When IA and company ventured out of providing what's available in the public domain to make privately owned property available to the world for free, they broke long-established law and caused harm to those who own the rights to what was illegally taken.

I like free books and read a lot of them. But for those who haven't thought this through, we have to protect authors and their publishers because we and society can't do without them -- also because it's the right thing to do and we are who we are. When threats are too big for authors and their publishers to find a way to handle themselves, they've always turned to the judiciary and to the Democratic Party for help.

[Happy Hoosier]

20. That's what libraries do!

Are we going to make all lending libraries illegal? I think the question at issue here is if the IA is violating the law by scanning the books and if extra copies ate being produced in the lending process. The whole “friends and family” aspect is more less meaningless. Libraries buy books all the time and loan them to thousands of people that aren’t friends and family.

[Hortensis]

22. Good point. But somehow libraries have managed to

serve society without threatening to drive publishing houses out of business and kill the careers of authors -- especially those who haven't already become wealthy and read by millions (which is almost all of them).

Times change, and technological advances require adjustments to keep things working. No doubt there are many thoughtful articles about all aspects of these changes. Like the music industry, it's a huge deal to those who make their living by creating things people want but can easily be copied and obtained free.

[Happy Hoosier]

23. Publishers want to keep their slice.

Publishers are used to extracting profit from buyers and authors. You seem to assert that these practices are killing book sales, but that’s just not true. Book sales remain strong and continue to trend upward. There is just no collapse in book sales that would justify eliminating the lending library model.

It’s true that authors struggle to make money, but that’s because of parasitic publishers, and the fact that the majority of book sales are concentrated in a relatively few best sellers.

[Hortensis]

24. Evil business ideology? Fwiw, I don't believe in original sin.

Not for people. Not for business -- which is 100% people, many of whom are actually liberal.

I also do not believe "profit" equals immoral exploitation. I believe profit has enabled far more good than bad. As for "extracting profit," what a loaded, crap term to apply to discretionary spending, along with most other. As if all the Americans who chose to spend $13 TRILLION on fun Halloween stuff last fall were forced to.

In our society that's an extremist attitude shared by very few, and imo it's not a nice one. I dislike it very much, not just for what I believe is an extreme, damaging level of intolerance that's become pervasive among both extremes in this dysfunctional era but for what I see as slandering and demonization of the decent people who own or are instrumental in, who ARE, business. (Yes, it exists.)

And, please, no to strawman "misrepresentations" -- NO ONE called for "eliminating the lending library model." Not me, not the federal court, not the plaintiffs the court found for. And I'm presuming not the evil-profit-seeking authors who hope to someday have their own books in libraries.

[Happy Hoosier]

26. Where did I say I oppose profit?

I do not. So… speaking strawman arguments… pot, meet kettle. I do oppose exploitive models where “publishers” take a percentage of profits out of proportion to the value they add. In many cases, authors have to pay for editorial services out of their cut. And they even have to pay licensing fees for images, including cover art.

This is not an an “original sin,”. It’s what they are doing right now.

But I noticed you avoided the main point… you asserted that the IA model os harming the publishers and authors. I pointed out that book sales trends continue to increase. Profits remain healthy. I don’t see that the model even endangers the traditional publishing model.

Can you show where it does?

And if you aren’t calling for a change in the lending library model, what are you suggesting? After all, traditional lending libraries DO lend their copies of book to thousands of people they do not know personally. That seems to be a sticking point for you. Do you care to elaborate? What model do you suggest? FWIW, while I tend to buy physical books I want to keep, for books I simply want to read, I get them digitally… from the library.

[Hortensis]

27. :) It's genuinely shocking to me that even authors and book publishers

Last edited Sun Mar 26, 2023, 02:09 PM - Edit history (1)

are automatically categorized by some as profiteers wrongfully "extracting" profits from people who want to read the latest James Patterson novel.

Realty-touchdown: This is a losing passion. The liberal, very stable and sensible Democratic Party will never go that way. (Check graphs of our ideology over the past century -- essentially unchanged! Others go wacky, become corrupted, and fall to manipulation. Not us.)

Those who really want to stop business abuses should forget socialist fantasies (like the Confederacy, a long-ago Lost Cause) and concentrate on supporting the Democratic Party's passion for REGULATION of business. It's proven to work great when done well, and Democrats are committed to regulation because it's also proven to be absolutely necessary. Note that regulation can and many times has set limits on profits.

Regulation. Keeping our vast wealth but redistributing it. THAT's how we win.

[Happy Hoosier]

28. You are misreading me.

I won’t speculate as to your motivations.

NEVER did I say I object to the authors making a profit. In fact, a main point of my argument is that publishers are taking a bite out of authors by charging them for publishing services in ADDITION to taking their own cut. I’m not speaking out of my ass here. My wife and s a published author. She’s had to deal with these very issues. And again, you completely dodge the issue that you originally brought up… your assertion that this model can destroy the publishing industry. Do you acknowledge that were mistaken there? The publishing industry is not in danger of going broke.

And I am not a socialist and it takes a tragically mistaken reading of my argument to think I am. My objection is to middle industries extracting a large share of the profit while offering very little in terms of value added.

And I ask again… if you are not suggesting a change to the lending library model, what is it you are suggesting? You seem keen to avoid that question as well.

[Hortensis]

29. Whatever. In this case,

* No one ever had a right to read the books under discussion without paying or taking them out from a library with a mutually beneficial business relationship with the publishers and distributers. So no right was taken away.

* No one has to have the more recently published, popular books affected. So no victimization.

* Profit isn't an issue in this case. It's about OWNERSHIP.

This case is actually pretty basic. Public libraries have mutually agreed and mutually beneficial business arrangements with publishers. IA never did; it was not just never mutually beneficial but became harmful to the point that it had to be stopped.

Fwiw, using "profit" as a dog whistle to replace thought with negative emotions would work for MAGAs also. Grievance and victimization syndromes are very deeply inculcated among them. They know the big business they "got off the backs of" by deregulating has been abusing them, and they're always primed to be enraged on demand. Different ideology doesn't matter -- just say "profit" (in the tone used for grievance dog whistles), point them at a company, and they'd attack.

[The Magistrate]

5. The Flaw In This Reasoning, Ma'am

Is the assumption people always would be willing to pay for the thing they get for free. I have, for various reasons, read on-line things I can assure the publisher I would not part with a dime to obtain. And that is even without going into things which are out of print yet still in copyright, that can only be purchased on a second hand market which does not and cannot net the copyright holder anything.

[Ms. Toad]

8. That's reasoning related to marketing,

not copyright law. The court decision was based in copyright law.

Legally, the decision is correct. The owner of the copyright has the right to control reproduction of the work, in this case both the scanning of the book and the creation of the copy which each subsequent lender receives. In creating those copies, they infringed the copyrights of the owners.

Those rights are completely unrelated to marketing assumptions - they are purely a right to control when, or if, an individuals work of authorship can be reproduced. Not every author/copyright owner is interested in making a buck. Some just don't want, for example, their songs to be used to promote Trump.

[The Magistrate]

9. It Is a Crabbed And Curious Definition, Ma'am

On Archive, the only things I have seen that can be saved to a reader's machine are things which are out of copyright. So there is no meaningful sense in which a copy is made when someone takes loan of a book from Archive. They will be able to read it for an hour (renewable), or for two weeks in some instances.

I fail to see how the 'one copy lent at a time for a set time' practice differs from loan of a physical book for a set time. Scanning a book to be able to transmit it is not a duplication for sale, if copies of the scan are not sold. It is not duplication for distribution if no copy is left in anyone's hands. An author who claimed to desire that no one who hadn't purchased a work should be allowed to read it would have to object to any copies being sold to a lending library as well. The fact that one form of making books more accessible is traditional and another is novel does not indicate they are different in kind.

This particular suit is about money, and mostly speculative money, money someone thinks they might get for the firm, but cannot really be sure is there, which is my point. There is no question here about use of the material for some purpose the author disapproves of, it is simply made available for people to read. The publisher imagines everyone who borrows on Archive would have bought the physical book, or an e-book. That is nonesense.

There is a growing sense among business-people that they are entitled to some degree of profit. It has appeared in trade agreements proposing that if a new regulation increases the costs of doing business, that should be sanctioned. Among the grounds on which suit has been brought before an anti-abortion freak seated on the Federal bench in Texas is that use of the medication to terminate a pregnancy deprives the doctors suing of income they might have had if the pregnancy was continued. This suit is just one more example. The company is no more 'entitled' to the price of a book lent on Archive electronically that it is to the price of a physical book lent by a municipal library. A judge who says so is an ass.

[onenote]

10. You're adding words to the Copyright Act

The exclusive rights granted to copyright owners include the right to reproduce the work (or authorize the reproduction of the work). It is not limited to "duplication for distribution" or "distribution for sale."

Reproduction for one's own benefit might qualify as fair use, but as the court case correctly concludes, the reproductions made here were not for the sole benefit of the owner of the work. The well-established "first sale" doctrine would be meaningless if it was expanded to encompass unauthorized reproductions.

[The Magistrate]

13. The Statute Predates The Modern Mechanism, That Is All

You might as well argue freedom of the press does not apply to a broadcast journalist, as obviously a transmitting tower is not a printing press. I have identified the legitimate concerns addressed by copyright law, which amount to no one but the copyright holder should profit from the work, and that the copyright holder should control use of the work in other ways.

If someone borrows a book on Archive, that book is unavailable to anyone else for the duration. More than one copy of some titles is hosted on the site, so it may be possible, if someone has the item sought, to find another copy that is available. If a book I want is carried, but not on the shelves of the downtown library, I must wait till it is returned. The library shelves often hold several copies of a title. There is no difference save in the form the language of the work is made available to a reader: as a physical object, or as a file viewed on a screen. If the physical object must be returned after a period of time, and if the file ceases to be available for view on the screen after a certain period, there is no meaningful distinction between the former and the latter.

I have no idea by what means a file goes from a scan on Archive to an open page of Capt. Billy's Whizz-Bang on my screen. If the electronic process involved requires some duplication of a file for transmission, this is simply not a meaningful objection, and it is not a meaningful objection even if it can be argued that the precise letter of the statute bars it.

I would note also that most old books I've seen on Archive are marked as library discards --- in other words, are copies of books purchased, used up, and tossed in the trash. They are just carrying on in a different library....

[Ms. Toad]

11. Scanning a book IS a making a copy of the book, under copyright law.

You have the original book, and you have an electronic version (the copy). That is absolutely settled law - whether you believe it makes sense or not. When you allow someone else to download a copy to read offline, you are making another copy of it. The copy in the Archive is not transferred to someone else, in the way a physical book is. It still exists in the Archive - AND - a copy exists on the borrower's computer. The fact that it will be destroyed in an hour or two weeks is irrelevant. Copyright protects the copyright owner's right to control when, and under what circumstances, and by whom a copy can be made.

When a library chooses to make electronic books available, it enters into a license which allows it to make those additional copies available - generally to sequential readers, although under some licensing schemes on a per check-out basis so the library does not have to license lots of copies it will not ultimately use. Typically the library also purchases physical copies. (BUT - it cannot just scan the books and send them out electronically, even if it restricts the book to being used by only one person at a time.) The licenses for those books are fairly pricey; the Archive is stealing

Under copyright law, it makes not a whit of difference whether the end users would ultimately purchase a copy or not. If you don't have the copyright owner's permission to make a copy of the book, you aren't allowed to do it.

What the owner of the copyrights is entitled to is a matter for the courts to decide, but as long as the copyright has been registered with the copyright office the owner is entitled to the statutorily mandated damages even without proving they have lost a penny.

You may not like the law, or may not think it makes any sense. But it is the law. (I practiced IP law, including copyright law, for 13 years.)

[The Magistrate]

14. And This Would Be the Nut, Ma'am

This statement is nonesense:

"The fact that it will be destroyed in an hour or two weeks is irrelevant."

It is, as someone once said, arrant pedantry up with which I shall not put. It is using the letter of law against its spirit. I understand I am arguing against how judges currently read the law. I am not required to agree. I do not consider the Archive people to be thieves. If there is a good deal of money being made off the site, that might strike me as a reasonable charge, and if demonstrated could alter my view.

[Ms. Toad]

15. Copyright law has nothing to say about possesion of the copy

or the duration of the possession of the copy.

It is about giving the author the exclusive right to copy their work, or to determine who and under what circumstances such copying can be done. That is the spirit of the law - preserving the right to permit (or prohibit) anyone else form copying the owner's work of authorship. That spirit comes directly from the constitution.

Article I Section 8 | Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

It is not something thing created by conservative judges.

Archive usurped the copyright owner's exclusive rights regarding reproduction when it copied the work multiple times without the consent of the copyright owner. That violates not only the letter of the law, but the spirit of the law, and the constitution

Whether, and how much, harm came from doing so is first - a matter of statute. Because the amount of harm is hard to establish because - as you pointed out - not every infringing copy would have been a sale, Congress has established statutory damages to which authors are entitled without having to prove any harm at all. And second, a matter of evidence.

But it is the act of copying which violates both the spirit and letter of the law. How long a copy exists, how many copies were made, etc. go to damages.

[The Magistrate]

16. Which Is Ridiculous, Ma'am

I am sorry, but it is.

I am not arguing against something I imagine created by conservative judges, or liberal ones for that matter. The statute is in this instance wrongheaded, no actual damage is done anyone. Just as there can be no right without a remedy for its violation, there cannot rightfully be a remedy without a wrong to put right. If something is defined by law as a wrong, which does not entail material loss, or mental suffering of the sort produced by death or physical injury or infamous insult, then it is wrongly defined, and goes beyond any proper reach of the law. There are any number of things which are quite legal and thoroughly wrong, just as there are things law forbids that are right and proper.

[Ms. Toad]

17. The owners of the copyright are entitled to control the reproduction of their works.

That right is in place to encourage authors, artists, and others whose work can be easily reproduced, to continue to make such works by giving them the means to earn a living form their work.

An average short novel takes around 400 hours to write. At $15/hour that's around $6000. $15/hour is pretty minimal for a self-employed person. The $6000 does not include any production costs.

Absent the exclusive right to control reproduction, once it is sold to a single person that buyer can just scan it, make electronic copies and give them away to anyone who wants to read it, and the author gets nothing more. In order be able to afford the time it takes to write a novel the author would need to charge **at least** $6000 to that first buyer simply to earn a pittance of a living.

The exclusive right to control reproduciton allows the author to spread the cost of writing it over lots of buyers, because they - alone - can create (or authorize others) to make additional copies, each of which has the potential to generate income for the author for a portion of the cost of creating it. That right to control is what allows the author to sell each copy at an affordable price.

That's the spirit of the law - it is to ensure that creative individuals continue to create - by guaranteeing the ability for them to profit from each copy of their work so that they can sell single copies at a low enough price that they aren't priced out of the market.

Archive usurped for itself the right to decide how many copies exist, and the right of the owner of the copyright to make a profit from anyone who wanted a copy of the work. Not everyone would want to buy a copy, but anyone who needs access to it would need to buy it (directly paying the copyright owner), borrow it physically from the library (which in turn has paid the copyright owner), borrow it electronically from the library (which in turn has paid the copyright owner). Archive is within its rights to purchase a physical copy and pass it around - or to sell that physical copy to someone else under the first sale doctrine. What it cannot do is make additional copies of it. If it wants to make an electronic copy, it needs the permission of the copyright owner who can decide to grant it without charge, deny it, or charge a fee for an electronic license (as is common with libraries).

The material loss is the profit from any sales either of physical copies - or of license fees from libraries if there is enough demand for "free" access to electronic copies - which were not made because Archive made a copy that it would have otherwise had to pay a library-type license fee to obtain. While it is true that not everyone who checks it out would purchase it, had Archive not usurped the rights of the copyright owner, some would have. And some libraries may not have purchased electronic licenses because those who might have borrowed the library copy borrowed it instead from Archive. That is the material loss.

The fact that the loss is hard to quantify, because it is hard to determine exactly how many sales or electronic license fees were lost, does not mean there was no loss.

[The Magistrate]

18. We Are Spinning Wheels, Ma'am

I can see no material difference between the function of a lending library circulating printed books and a lending library circulating them in electronic form. Provided that both libraries made the initial purchases of the copy lent out. The argument sales are lost by a book lent in electronic form applies equally to a book lent in physical form: if one costs the publisher sales, so does the other: if one is permissible the other ought to be. That electronic lending requires creation of ephemeral copies does not alter this.

The charge a law is wrongheaded is not rebutted by stating it is a law produced by the Congress of the United States. The Congress of the United States is none too bright, and in any matter touching commerce lobbyists lead it by the nose (or the wallet) to whatever will maximize the profit of whatever monied interest employs them.


"Fishing, for me, has always been an excuse for drinking beer early in the morning."

[Ms. Toad]

25. The difference is that lending libraries purchase an electronic license

They don't just copy a paper book. What Archive did was to skip the requirement to purchase a license step.

Licenses for electronic copies that can be lent out are generally more expensive than a single copy of a book, and come with requirements that the lending library use restrictive software to ensure additional unauthorized copies are not being made.

The spirit of the copyright law is to balance the societal of having plentiful access to the arts, literature, etc. against the the need to ensure that those who are doing the creating have the ability to sell their works at a price which is both affordable while still providing them reasonable compensation.

That balance gives them near complete control for a period of time to, effectively, set the price of that item by controlling how many copies exist, and in what form they exist. The price for electronic copies that are intended to be circulated through an entity like a library are generally set higher than for physical copies. That higher pricing is a balance between the potential of reduced sales (meaning the authors cost of creation must be shared by a smaller pool of buyers - and each copy must then cost more) and providing greater access to the book.

I think where you are getting hung up is that the publisher is standing in the shoes of the author, so it no longer feels to you like the person whose work is being ripped off is even in the picture. It is that person the spirit of the copyright law was intended to protect. But when the face of the litigation is the piblisher, it just feels like big business to you trying extract money for something that hurts no one. Buy even though it is more removed from the direct interactions between artist and public envisioned in the Constitution, it is only (in most instances) by making a deal with the devil that most authors that modern authors can survive. They get royalties from the publishers in exchange for producing, marketing, and selling their works - and - enforcing the copyrights on their behalf. If they don't enforce the copyrights, the little guy who wrote the book and is entitled to royalties loses out.

The relationship between publishers and authors stinks, and publishers have far more control than they should over which authors get their books before the public, and how much money they receive from each sale, so it is easy to hate publishers. But the solution isn't to strip the rights of the copyright owner - it is to find a way for authors to have a stronger bargaining position vis-a-vis publishers.


.

[msfiddlestix]

21. by this legal theory, Public Libraries would be operating illegally

And E-books sourced through my Library system as well as videos would all be illegal.

Hoopla, Kanapy, etc which offer films, books, television series all illegal enterprises?

Imagine, the miniature library installed along neighborhood front yards with books for people to borrow and share.

Thrift shops selling donated books they received for free. on and on.



jeeze.