Internet Archive's National Emergency Library

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Internet Archive's National Emergency Library

Postby cmsellers » Sun Apr 26, 2020 2:17 am

So, I got an email from the woman who runs my writing group complaining that the Internet Archive had illegally digitized "thousands" of books (I suspect that that's off by an order of magnitude), and was now making them available for free under the guise of fair use. She also scoffed at the idea that the Archive will compensate authors, as it claims it will.

Naturally, I had to look this up. This WIRED article and this Smithsonian article give a pretty good overview of the controversy. I was going to link the library itself, but realized that if Internet Archive is engaging in copyright infringement (and it likely is), that could constitute contributory infringement on my part, because US copyright law is whack. I will, however, link to the FAQ, which provides the Internet Archive's take on this.

I will also take this opportunity to link y'all to Tom Scott's excellent mini-documentary: No copyright infringement intended. A link because I don't think y'all want to watch forty minutes of embedded video in one go. Scott goes over the way copyright works in the US legal system, and makes pretty clear that, from a legal perspective, the Internet Archive is 100% in the wrong here.

Legally speaking, it's not even close. The Internet Archive may have the right to digitize these books—that part isn't clear—but they do not have the right to make copies of those digital scans and share them with others without the permission of the copyright holder or someone (such as a publisher) who has sublicensing rights. US courts have sided with copyright holders in far less ambiguous cases than this one.

And no, this isn't fair use either. Like, if I were on a jury, I would bend over backwards to find fair use while plausible, but this isn't remotely fair use. The most important factor for fair use is the whether a work is transformative, which this clearly isn't. The other three factors are the amount used (Archive uses the whole works), market usurption (Archive focuses on out-of-print books but doesn't limit itself to those), and whether it's commercial or not (the only factor on the Archive's side here).

From a pragmatic perspective, the long-term best-case-scenario here is that the Internet Archive ends up paying out vast sums of money, and getting a license to use a small handful of the books it's digitized—mostly the ones that are already available through other sources anyways—going forward. But the worst-case scenario is that in five years' time, the Internet Archive won't exist because of this, and I'd say that this scenario is far more likely than the best-case scenario. Indeed, technically, even the Wayback Machine itself is a massive experiment in copyright infringement under current US law, which to my mind is more a problem with US copyright law than the Internet Archive, but it's not anything I can do about.

So this raises the final question: for whom is the Internet Archive's National Emergency Library desirable? Obviously, anyone who borrows books from it that there would have been a waitlist for under it's old (also blatantly-illegal) will benefit. Publishers and authors could stand to benefit in the long-term, and I'm skeptical that this is hurting them much in the short-term. The Internet Archive's ebooks require you to create an account and are subject to DRM, which means this is not a service I would ever use. I feel like advocates of DRM should therefore be over-the-moon that even the Internet Archive, advocates of openness, are using their technology. From my perspective, as someone who is strongly opposed to DRM, this is conversely a bad thing.

In short, I think that this is a decision which probably won't help nearly as many people as the Internet Archive thinks it will, won't hurt authors and publishers nearly as much as author's organizations and publishers fear, and will probably end up being a major self-inflicted wound in the cause of openness, since the most likely effects of this will be A. to expose more people to the idea that ebooks should be DRMed by default and B. to harm or even shutter the Internet Archive.
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Re: Internet Archive's National Emergency Library

Postby Pedgerow » Sun Apr 26, 2020 5:24 pm

Doesn't Google Books operate very similarly to this? They seem to have a huge number of textbooks and things that people refer to if they ever need to back up an argument. I've never understood how that was allowed. But if Google does it, and makes money off it, I suspect this will influence any legal decisions, because Google has the power to do that and they're not going to want to lose the user data and revenue they get from their own service.

In terms of my own opinions about where to draw the line, I still support offline things wherever possible and I believe that if you pay for something, you should actually get something tangible for your money. This seems to be controversial nowadays, but if you want a book, buy the book. If it is available as an ebook, great, but don't pay money for an ebook. They're horrible. Get a real book. It's wrong to scan in real books for people to view online for free, but if that book is out there already as a PDF, then it's mad to charge money for it. So hopefully, any book by a living author who does not consent to having their books read for free will be removed, but everything else will be left in place. Corporations have been making a mockery of copyright law for years anyway, getting the law changed so that old Disney cartoons don't become public domain, for example. So I'm very sorry if Stephen King's books wind up out there for free, but there are enough instances where corporations can go fuck themselves that I hope they lose this anyway.
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Re: Internet Archive's National Emergency Library

Postby cmsellers » Mon Apr 27, 2020 2:06 am

So, while I generally prefer physical books to ebooks, I wouldn't say ebooks are horrible, at least not DRM-free ebooks. Project Gutenberg's ebooks basically got me through my time abroad, where English-language, dead-tree versions of books I'd want to read are pretty much nonexistent. They are also useful if you read a lot while traveling and don't want to bring a suitcaseful of books. (But for me, what else am I going to bring on vacation?) And many people like them because they reduce the physical clutter in their space. I am so strongly opposed to DRM that I literally won't add free ebooks to my Amazon library if they have DRM, but I'm an outlier, and for many people, even DRM-ed ebooks are more convenient than physical books.

Also, I think you have your priorities backwards here. There are a lot of out-of-print works and even orphaned works (copyright holder unknown) that are simply hard to come by physically. Senator Ron Wyden proposed requiring people register their old, out-of-print works, with the registration cost reduced to a dollar, on the grounds that, if it's not worth a dollar and whatever time it takes you to register your works, then they belong in the public domain. Unsurprisingly, the copyright lobby killed this, nominally because it was an injustice to the copyright holders who didn't feel their works were worth a dollar, but really because that would lead to a flood of competition with the works of their members. So the Archive making these works available, even to one person at a time, I think is a laudable goal.

But copyright is supposed to allow authors to be compensated, and if you think the copyright in physical books should be protected, it is inconsistent to say that the copyright in ebooks should not. Honestly, the work that publishers to do lay out ebooks probably isn't worth a ton, per ebook, but the editing they did for the book as a whole is, and the work of the authors certainly is. I think we need to turn back the clock on copyright to 14 years with an optional 14 year renewal and keep it there, but I would certainly not argue that the mere fact that ebooks are a nonexclusive good means that they should not be eligible for copyright protection.

Indeed, one of my biggest issues with how the Archive has done this is that, instead of focusing exclusively on out-of-print books, there are plenty of in-print ebooks in their collection, and these include publishers who do it right. For example: Subterranean keeps their entire back catalogue in-print as DRM-free ebooks (now, I do wish they'd do larger print runs and/or second editions, because their physical books always sell out and usually end up reselling for ridiculous prices, but that's a different issue), usually available for $5 and never more than $8. This is exactly the sort of ebook we should be encouraging, but the Archive makes no distinction, nor indeed a distinction in terms of whether a book is still in print at all.
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