Who archives the archivers? - The Internet Archive sued (for potentially $210 billion) by publishers due to questionable COVID decisions

[rcmaehl]

Sources:

NPR

Vice

Engadget

ArsTechnia (Quote source)

 

Summary:
The Internet Archives' decision to lend out unlimited copies of any book is blowing up in it's face with a lawsuit from five top publishers with damages of (up to) $150,000 per book for each of the 1.4 million books.

 

Quotes/Excerpts:

Quote

The nation's leading book publishers have sued the Internet Archive, the online library....maintaining the Internet Wayback Machine. The Internet Archive makes scanned copies of books, available to the public on a site called the Open Library. For almost a decade, the Open Library has offered users the ability to "borrow" scans of in-copyright books. Until recently, the service was..."controlled digital lending" that mimicked the constraints of a conventional library. The library would only "lend" as many digital copies of a book as it had physical copies. If all copies of a book were "checked out" by other patrons, you'd have to join a waiting list. As the coronavirus pandemic was gaining steam, the Internet Archive announced it was dispensing with this waiting-list system. Called the National Emergency Library, IA began allowing an unlimited number of people to check out the same book at the same time, even if IA only owned one physical copy. Before this change, publishers largely looked the other way. Some publishers' groups condemned the practice, but no one filed a lawsuit over it. The IA's emergency lending program was harder for publishers to ignore. 

In an email to Ars Technica, IA founder Brewster Kahle described the lawsuit as "disappointing." "Publishers suing libraries for lending books, in this case, protected digitized versions, and while schools and libraries are closed, is not in anyone's interest." The publishers' legal argument is straightforward: the Internet Archive is making and distributing copies of books without permission from copyright holders. It's harder to come up with compelling arguments that the Internet Archive's open-ended lending program is fair use. The Internet Archive will likely need to make a more novel argument, that the unique circumstances of a pandemic justifies allowing types of infringement that would be clearly illegal at other times. The Internet Archive is officially a non-profit, but the publishers' lawsuit portrays the group as effectively a commercial operation profiting from copyright infringement. It points out that IA has earned millions of dollars from contracts to scan books on behalf of partners such as other libraries. But Kahle's idealism, or foolishness, might cost him dearly. Copyright law allows statutory damages as high as $150,000 per work for willful infringement. And Grimmelmann tells Ars that if the publishers win the case, they'll have a strong case that the infringement was willful. The Internet Archive has scanned more than a million books that are still under copyright, so a loss could easily lead to billions of dollars in damages, far beyond the non-profit's ability to pay. So if the publishers win the lawsuit, they could force the Internet Archive out of business. That would be an incalculable loss given the group's work archiving other types of content, including the early Web.

 

My Thoughts:
I don't know what the Internet Archive was thinking, this is clearly copyright infringement. The safer thing to do would be to buy more books, instead they essentially made as many copies as they wanted. This could potentially be a major blow for not just the internet archive but for all digital libraries in general. I hope that the circumstances around the decision are considered, but only time will tell.

[Drama Lama]

I thought the internet archive has only books with no more copyright

[TetraSky]

Yeaaaah. Libraries operate on the model that one book can be rented by many people individually. Which is basically like if you bought something and loaned it to your friend. It's money out of the pocket of the publishers, but they probably assume that they few people who still visit the library wouldn't make much of a dent in their revenue.
 

But what if you allowed an unlimited number of people to "borrow" the same book and the same time... For free... That just wouldn't pass. IA fucked up. If it was just copyright free books, that would've been fine. But in-copyright books? Nah. It's piracy.

[wanderingfool2]

2 hours ago, huilun02 said:

America strikes again

This has nothing to do with America, it is a violation of copyright law pretty much anywhere and the actions of IA clearly put them in the wrong.  It is unfortunate that they made such an ill-advised policy...I can't believe that no one pointed out how this would open them up to lawsuits

 

I don't think this will have too much effect on the rest of the industry though, since there is a clear distinction between borrowing books that are owned and limiting them vs borrowing books and effectively copying them.

[givingtnt]

I agree that it was a stupid thing to do, but on the other hand.. it's not like the publishers have any real loss of income here..

 

Worse case is: people wait longer or borrow a different book.

 

It's free either way.

[poochyena]

49 minutes ago, givingtnt said:

Worse case is: people wait longer or borrow a different book.

If a book is popular, then the library would buy more books so they can lend out more at a time. If you go to just about any library, you'd likely see multiple copies of popular books like harry potter or whatever.

[PlayStation 2]

Me when copyright holders cry about losing exactly 37 cents from the Internet Archive:

 

[BlueChinchillaEatingDorito]

2 minutes ago, poochyena said:

If a book is popular, then the library would buy more books so they can lend out more at a time. If you go to just about any library, you'd likely see multiple copies of popular books like harry potter or whatever.

Even then, libraries would stock at max maybe 10 copies? They're not going to buy as many as they can because they know once the hype dies down, those books are going to be collecting dust for the next few years. 

[poochyena]

8 minutes ago, BlueChinchillaEatingDorito said:

Even then, libraries would stock at max maybe 10 copies?

what do you mean "even then"? The point is they are losing out on income. They aren't always just buying one copy and thats it, like the person I quoted implied.

[dalekphalm]

1 hour ago, BlueChinchillaEatingDorito said:

Even then, libraries would stock at max maybe 10 copies? They're not going to buy as many as they can because they know once the hype dies down, those books are going to be collecting dust for the next few years. 

Highly depends on the library. The one I work at for a city of 140K people might stock more than 10 copies of a hotly anticipated book. 
 

Once the hype dies down, they sell off copies. 
 

Also for ebooks, a library pays for each copy. More copies means more cost. 
 

While I appreciate the sentiment of offering unlimited ebook borrowing during COVID, what they did was straight up, unquestionably illegal. 
 

Like, not even a debate. 
 

They should have worked with the publishers to work something out (granted the publishers probably wouldn’t play ball). 

[LAwLz]

This is exactly what I would expect from greedy publishers. They didn't even ask IA to stop from what I can tell. 

Their first response to someone trying to do a good deed is "let's sue them for billions of dollars!". 

 

It's pretty clear thst publishers in general are the scum of the earth. Hell, like the article says some of them didn't even like that IA were lending books they had legally bought. 

 

What IA did is illegal, but the reaction from publishers is clearly a horrible one as well. Fuck em. I hope IA gets out of this unharmed. They provide extremely valued services (way back machine among other things) and in general want to do good things for us (the general public). 

[Trik'Stari]

This sucks, as archival sites are being used to bypass paywalls at news sights as well as maintain an actual record of the shit politicians say, because the media is all to happy to delete some things and maintain others.

[dalekphalm]

41 minutes ago, LAwLz said:

This is exactly what I would expect from greedy publishers. They didn't even ask IA to stop from what I can tell. 

Their first response to someone trying to do a good deed is "let's sue them for billions of dollars!". 

 

It's pretty clear thst publishers in general are the scum of the earth. Hell, like the article says some of them didn't even like that IA were lending books they had legally bought. 

 

What IA did is illegal, but the reaction from publishers is clearly a horrible one as well. Fuck em. I hope IA gets out of this unharmed. They provide extremely valued services (way back machine among other things) and in general want to do good things for us (the general public). 

Even if this does go to court, there’s no way IA will pay anything even close to that high. 
 

Those are the maximum payouts, and given how it’s not selling or directly profiting from the extra copies will heavily mitigate any kind of settlement. 
 

I still wouldn’t disregard an out of court settlement in which the IA pays little to nothing in exchange for immediately stopping the extra copies, and the publishers get to save face. 
 

It’s also possible the publishers might come back and offer the licenses for free as a gesture and sign a contract giving the IA the copyright licenses they need. This is the least likely outcome but it’s still within reason a possibility. 
 

I think they will settle out of court and the IA will get a slap on the wrist. But that depends on whether the IA tries to come up with some legal justification. Nobody thinks they would have any chance of winning, but perhaps there’s a loophole, etc. 

[mr moose]

11 minutes ago, Trik'Stari said:

This sucks, as archival sites are being used to bypass paywalls at news sights as well as maintain an actual record of the shit politicians say, because the media is all to happy to delete some things and maintain others.

Rewriting history is one of the biggest problems we are going to face.  The internet makes it really easy to present a very one sided view of anything, I have already personally experienced it trying to get hold of several interview transcripts/video that used to be online but strangely isn't anymore.  

[Trik'Stari]

26 minutes ago, mr moose said:

Rewriting history is one of the biggest problems we are going to face.  The internet makes it really easy to present a very one sided view of anything, I have already personally experienced it trying to get hold of several interview transcripts/video that used to be online but strangely isn't anymore.  

I agree. Everything politicians say or do should be recorded as a matter of fact. Including personal communications. Although I haven't quite figured that out for candidates who aren't in office yet.

 

"But Trik, that's a violation of the right to privacy!"

 

Their job is a voluntary one. They should have to give up some rights to attain the power they wield. If they don't like it, they're more than welcome to not run for office and just be a normal productive member of society.

[poochyena]

1 hour ago, LAwLz said:

greedy publishers

Its not greedy to want to be paid for your work.

[poochyena]

29 minutes ago, mr moose said:

Rewriting history is one of the biggest problems we are going to face.  The internet makes it really easy to present a very one sided view of anything, I have already personally experienced it trying to get hold of several interview transcripts/video that used to be online but strangely isn't anymore.  

The internet makes that extremely difficult to do since its so easy to copy and store things. its MUCH easier to destroy physical content than digital content.

[mr moose]

1 minute ago, poochyena said:

The internet makes that extremely difficult to do since its so easy to copy and store things. its MUCH easier to destroy physical content than digital content.

Only if you have a dedicated team of people down loading and storing the pertinent data.  For 99% of the population, trying to get the information to read first hand is very difficult.  We become reliant on consumer advocacy and lobby groups with the ability to go searching in depth and use FOI to get the information required  But then it gets dismissed because it was presented by group X.  

 

There is a reason facebook, reddit,  twiiter etc all become echo chambers and the wider internet is not that much different.  Even places like scientific American have sullied their reputation with obviously biased articles (either out of fear of SJW backlash and loss of revenue or because of something more insidious).

 

 

 

 

[Bombastinator]

This may be a “mercy of the plaintif” on this one.  A given publisher will have to deal with the flak of potentially destroying the internet archive.  My understanding of the law is poor even for a layman though.  I’ve seen articles here turn out to be missing critical pieces though so I’m withholding judgement.  It’s interesting to note that it is happening.

[Warin]

I know a couple of authors that spent a fair bit of time getting IA to stop "loaning" their copyrighted works.  This isn't just "greedy publishers", it is also ordinary folks who are pretty pissed that someone is giving their work away for free.

[poochyena]

3 hours ago, mr moose said:

Only if you have a dedicated team of people down loading and storing the pertinent data.  For 99% of the population, trying to get the information to read first hand is very difficult.  We become reliant on consumer advocacy and lobby groups with the ability to go searching in depth and use FOI to get the information required  But then it gets dismissed because it was presented by group X.  

 

There is a reason facebook, reddit,  twiiter etc all become echo chambers and the wider internet is not that much different.  Even places like scientific American have sullied their reputation with obviously biased articles (either out of fear of SJW backlash and loss of revenue or because of something more insidious).

nowhere in all those words do you describe how its harder to destroy physical content than digital content.

[Bombastinator]

9 minutes ago, poochyena said:

nowhere in all those words do you describe how its harder to destroy physical content than digital content.

It’s almost not.  If you rip the front and back cover off a book it’s officially destroyed.  There’s also a thing about pouring some ink into it but that hasn’t been bothered with in a long time.

[mr moose]

1 minute ago, poochyena said:

nowhere in all those words do you describe how its harder to destroy physical content than digital content.

You don't have to destroy anything physically to make it harder to find whilst flooding the internet with an alternative thus obfuscating history.  You don't even have to hide stuff from basement nerds, you just have to make it less visible to the general population.

 

Example:  the McDonald's v liebeck case:  if you search for all the information on that case nearly all the information you will get are the articles the lawyers want you to see.  They have flooded the internet with their side of the story and only their evidence, if you want to know what actually happened in that case, then you either need to know where to look to get the actual court documents or you are reliant on "adam ruins everything" or "today I found out" for your information.  I don't know if you have every tried to get hold of court documents or not, it really isn't that easy for the average person to find them and understand them.  They are full of legalese that often has important ramifications also often words have a different definition in legal terms than they do in average parlance.  ergo if you don't have a lawyer willing to interpret it for you you are at a significant disadvantage as to gaining useful information.  Thus bringing us back to the original statement, it is really easy to rewrite history on the internet. 

 

You don't need to destroy data 100% in order to re write history, you just need to change the amount out there and make it convincing for the bleeding heart mums on the internet.

 

Another example. There was an interview in Australia back in the early 2000's regarding the economics of wind power.   It was an absolutely shocking interview, the journalist (not that I would call him one) was using the interview to push a personal agenda and wasn't letting the guest answer any questions.  It was reprehensible.  The interview went to air and I saw it online.  Realizing how bad this was for a government funded journalist I tried to get a copy,  I have not been able to find a transcript or copy of that anywhere.  In order for me to do that I will have to file a FOI with the ABC (which can be refused making me need to take them to a lawyer or to a higher authority).  That is a lot of work for the average person who should just be able to google for it like all the other interviews they have online.

 

So yes, absolutely can the internet be used to re write history, in fact it is so easy it is already happening. 

 

 

 

 

 

 

[poochyena]

1 hour ago, mr moose said:

You don't have to destroy anything physically to make it harder to find whilst flooding the internet with an alternative thus obfuscating history.  You don't even have to hide stuff from basement nerds, you just have to make it less visible to the general population.

 

Example:  the McDonald's v liebeck case:  if you search for all the information on that case nearly all the information you will get are the articles the lawyers want you to see.  They have flooded the internet with their side of the story and only their evidence, if you want to know what actually happened in that case, then you either need to know where to look to get the actual court documents or you are reliant on "adam ruins everything" or "today I found out" for your information.  I don't know if you have every tried to get hold of court documents or not, it really isn't that easy for the average person to find them and understand them.  They are full of legalese that often has important ramifications also often words have a different definition in legal terms than they do in average parlance.  ergo if you don't have a lawyer willing to interpret it for you you are at a significant disadvantage as to gaining useful information.  Thus bringing us back to the original statement, it is really easy to rewrite history on the internet. 

 

You don't need to destroy data 100% in order to re write history, you just need to change the amount out there and make it convincing for the bleeding heart mums on the internet.

 

Another example. There was an interview in Australia back in the early 2000's regarding the economics of wind power.   It was an absolutely shocking interview, the journalist (not that I would call him one) was using the interview to push a personal agenda and wasn't letting the guest answer any questions.  It was reprehensible.  The interview went to air and I saw it online.  Realizing how bad this was for a government funded journalist I tried to get a copy,  I have not been able to find a transcript or copy of that anywhere.  In order for me to do that I will have to file a FOI with the ABC (which can be refused making me need to take them to a lawyer or to a higher authority).  That is a lot of work for the average person who should just be able to google for it like all the other interviews they have online.

 

So yes, absolutely can the internet be used to re write history, in fact it is so easy it is already happening.

...again, nowhere in all those words do you describe how its harder to destroy physical content than digital content. You are saying its just as difficult online as physically, right?

[LAwLz]

7 hours ago, poochyena said:

Its not greedy to want to be paid for your work.

I would still say this is greedy, because these publishers aren't out to get paid for their work.

They aren't suing IA in order to get fair compensation for their books. They are out to damage IA because they have disagreed with the idea of lending books, because they want to get paid even more and ban lending.

 

If the publishers only wanted to get paid for their work, they would request IA to stop lending books they don't have physical copies for, and then maybe request a fair and reasonable compensation for the number of books that has been borrowed without legal permission. Let's say 30 dollars for each individual book that were unlawfully borrowed. Instead they are going after 150,000 dollars for each book that could have been borrowed. I don't think the publishers are morally or ethically entitled to 150,000 dollars per book, nor do I think they are entitled to get paid for books that haven't even been borrowed.

 

That's why I called them greedy. Because they take advantage of this situation to try and hunt down the concept of lending books, they are taking advantage of the situation to hunt down money they aren't entitled too (such as money from books that nobody has even borrowed), and they are asking for a ridiculous compensation that is completely out of this world.

 

And all of this is happening because IA tried to do a good deed and cover up for the thousands of libraries all around the world which are currently shut down and non-functioning. Me borrowing a book from IA instead of my (currently shut down) local library doesn't actually change the amount of money the publisher would have received. Yet this is somehow frowned upon by publishers, probably because they hate the idea of book lending.

 

 

Asking for 30 dollars per book is "wanting to get paid for the work you have done".

Asking for 150,000 dollars per book, a lot of which haven't even been borrowed, when someone was trying to do a good deed in the middle of a global catastrophe, is greedy.