Internet Archive Kicks Off Its Appeal Over Publishers Attempt To Kill The Site
from the protect-our-libraries dept
Back in March we were greatly dismayed by the the ruling in Hachette v. the Internet Archive over the legality of “controlled digital lending” and the Archive’s “Open Library.” It seemed clear that Judge John Koeltl did not understand some of the fundamentals of fair use (it also appeared that he went into their oral arguments with his decision made up, as he issued a 47-page ruling the very same week — which almost never happens). Koeltl’s analysis left a lot to be desired, as it really seemed to go against an awful lot of fair use precedent.
Judge Koeltl issued his injunction this summer which was, perhaps surprisingly, not as far reaching as the publishers wanted (they wanted the entire Open Library project effectively shut down, and the judge said only books that had ebooks available would have to be taken out of the Open Library).
As expected, the Internet Archive has now officially filed for its appeal in the case, and it has helpfully uploaded its notice of appeal to the Archive itself. This is going to be a big deal and worth following. The 2nd Circuit has a history of being friendly towards fair use arguments, but not overly so. That means it has made some key rulings in favor of fair use, but it also has made some pretty bad rulings against fair use over the years. So… who knows how this will go.
However, it will be an incredibly important case for the future of not just the Archive itself, but the future of libraries as well.
Filed Under: 2nd circuit, controlled digital lending, copyright, fair use, libraries, open library
Companies: hachette, internet archive
Comments on “Internet Archive Kicks Off Its Appeal Over Publishers Attempt To Kill The Site”
To kill the site sure got me worried that publishers were coming for Techdirt
Is there any way to turn the tables on these publishers and …. remove them from existence instead?
Re:
Sure, in principle. We just have to all agree to stop dealing with them—authors, readers, and libraries. But remember that many authors are still associated with the Author’s Guild, who act against the public; and readers still give money to the publishers hand over fist.
Same as with the film and music businesses. No matter how badly they act, almost nobody is willing to cut ties. Many still buy into their story that it’s “stealing” to copy media without giving them money. Courts and lawmakers included.
Re:
If every author and academic started their own blog or participated in online communities, it would certainly shift the balance of power to the authors and academics.
Recklessness from the IA
I support the IA, and I think it’s one of the world’s best websites, but IMO the Controlled Digital Lending program was extremely reckless. It was extremely risky and something they never should have even considered.
Did they somehow think they could change copyright law? Did they think no one was going to sue them? Good intentions can only get you so far, and the judiciary sure as hell doesn’t care if their rulings end up destroying decades of culture.
Re:
How dare libraries be libraries?
Re: Re:
Pushing DRM is hardly a traditional activity of libraries.
Re:
I am in agreement. I’m very disappointed they thought they could pull one over because of benevolence. We all despise copyright law and its mafias, but there’s no way you can away crossing the corporate overlords. They have enough resources to destroy anyone. After what Viacom pulled on Google, what is a puny nonprofit going to do? I still wish them the best and hope the stars align.
Re: Re:
But, also, that they’re acting against the readers as well as the publishers, because they’re trying to normalize DRM as an excuse to say what they’re doing is okay. A half-assed compromise that’s nobody’s enthusiastic to support. Even if the Archive wins, that’s gonna be shitty for the public. They should’ve gone full LibGen, or not done this at all.
I suggest
That the ARCHIVE go Full public..
Get the info/news/data OUT in the wild, and get TV and internet Stations to Tell people whats happening.
GEt the libraries to pass this around.
Get it out to the point that you CAN NOT, NOT have heard.
Re:
What? You know they’re associated with the MPA(A), the original copyright maximalists, right? There’s no way they’ll promote the Archive, particularly given that the Archive’s been recording all American over-the-air TV for years. We’re lucky there’s not already a lawsuit about that. Probably because they don’t make it easy to access.
As for the libraries, they’ve been letting the publishers push them around with regard to DRM and digital “lending”, without much effort to create public resistance. Maybe a few small systems are still on our side…
Libraries aren't dead yet... but not for lack of trying or desire
Judge Koeltl issued his injunction this summer which was, perhaps surprisingly, not as far reaching as the publishers wanted (they wanted the entire Open Library project effectively shut down, and the judge said only books that had ebooks available would have to be taken out of the Open Library).
Just your daily reminder that if the concept of libraries weren’t already long entrenched into society modern day publishers would never let them exist.
Speaking of wishful thinking
I am much more worried about the music publishers’ suit, where IA is much more reckless than they were with CDL. In the CDL suit, they at least had a theory about why it was legal. With the 78’s, their argument appears to be that the 100 year term on recordings is stupid, which it is, but that’s not going to impress a judge. There is a process to show that a recording is abandoned which IA hasn’t even tried to use (it’s tedious but not all that hard) and that’s just going to annoy a judge.
The book publishers could have asked for damages but didn’t, because they have business reasons not to damage IA. But the music industry has always hated the Internet and they’re not going to be as nice when (not if) they win.
They have a fair-use theory: this is transformative use with negligible effect on any still-existing market.
The Archive brings in probably tens of thousands of items per day. The “78 collection” is expected to eventually have more than 250,000 items. There is no practical way for them to fill out 250,000 applications for abandonment, let alone do any legal research for that many.
Anyway, look at the history of the Archive. They’re known for archiving early web sites. Many of the authors were adolescents, and could live past the year 2080. Had the Archive taken an especially strict view of copyright, the Wayback Machine couldn’t have been launched till about 2150. And without the Wayback Machine, few people would have been aware of the Archive, so how would they have raised the money for tens of thousands of hard drives? Or the access to get past the paywalls and CAPTCHA-walls that are everywhere these days?
Saying that people should strictly follow the rules around copyright is pretty close to saying that we throw away all our cultural artifacts. Do you think many records, VHS tapes, CDs, or web sites will remain in like-new state till their copyrights expire? Even the original Star Wars, which was wildly popular (and copyrighted till 2072 I think), is proving extremely difficult to preserve; see the work of Harmy and Project 4K77.