I'd love for the Internet Archive to prevail here, but honestly it was quite boneheaded to do this legal experiment under the same corporate umbrella as their archival work. At this point they should proceed with a damage mitigation strategy of selling off their servers and storage to a second entity at fair market value (maybe "Archive Cloud"), and renting continued access. This way even if the IA organization is bankrupted, the archive itself will still remain intact - the archived data isn't under IA copyright and thus wouldn't be part of the bankruptcy estate.
> it was quite boneheaded to do this legal experiment under the same corporate umbrella as their archival work.
I disagree. This is a wickedly good idea, and a very good hill to fight on. It is not a "legal experiment" but a major battle against evil people. Everybody loves the Internet Archive, it is our sacred castle. If a decisive battle is to be won against the publishing parasites, it may be likely this one, and we have to be all on the same side! After Aaron Swartz, the book parasites have never been so potentially hated by everybody. We must go all-in.
The error is on the side of the book parasites for having decided to fight against an institution that is so loved by mankind. They cannot but lose the battle (socially), regardless of what the short-time legal outcome is.
Dude: I'm an author. The books I write pay for the food that feeds my family. Are you saying I'm evil for asking to be paid for my work?
I can tell you that if the IA/EFF prevail, professional authors will disappear and the only people who will get to be artists will be those with trust funds and rich spouses. Is that what you want the world to become?
Do you really think artists are evil for wanting to be paid?
> Are you saying I'm evil for asking to be paid for my work?
No. I love and appreciate the work of authors, and I spend more than 1000 EUR per year in books. I systematically buy technical books that the author offers for free on their website. For the authors of the free software that I depend on, I try to donate if it is possible.
To answer your question very clearly: you are not evil by asking to be paid for your work. That is a very reasonable thing to do! Can you please point me to your books? I will likely buy them (if they are tangentially interesting to me).
All of that will not change the fact that sharing books is not stealing, and that using the verb "stealing" for the act of sharing is a callous manipulation of the language, even if it is sanctioned by law.
What is the point of putting the Archive at risk though? The same battle could have been fought by a new entity that only digitally lent books, without putting the archives at risk. You seem to be implying that putting more at risk will make them fight harder, which seems ridiculous. What I see is them needlessly choosing this as a hill to die on.
Putting the glorious Archive "at risk" is equivalent to charging the enemy all together behind our king. Sure, a risky move, but undoubtedly very encouraging. The battle is not only legal, but mostly social and PR. A new entity, independent from the Archive, would receive few popular support, and if the book parasites killed it nobody would be really bothered. Yet, if they try to kill the Archive, that's a huge mess on their part that nobody can forget nor forgive.
I recall from the comments here and in Ars Technica that there was a significant debate whether IA could do that or whether this will be considered bankruptcy fraud or whether the publishers could still claw back the servers despite the separation.
There's another last ditch option though - IIRC, IA has copies in US, Canada, Netherlands and Egypt. Let's say that some government where an IA server is hosted is convinced to nationalize the server. They have legal authority - there's much legal latitude for acting in the name of national security, and there's an obvious case to be made here: if we consider disinformation to be a security threat than a server hosting reliable and trusted internal history is an obvious asset (e.g. [0]).
Such an act would easily override any legal attempts by the publishers, and can be pushed for even after a conviction and bankruptcy and without involving the IA foundation at all.
The danger is that post-nationalization the information would not be considered reliable - this can be ameliorated if the servers are immediately rerendered to a private party, but it's enough of a downside to make this a last option to push for. That said, I suggest keeping this option in mind.
Well that's why I said "fair market value". It shouldn't be considered bankruptcy fraud if they were fairly compensated for the servers, as the monetary proceeds would still be in the estate. But perhaps that is the debate.
Nationalization seems heavyweight and unlikely, but maybe it could happen. The integrity problem could be solved with hashes, but it would take some work to define them to be useful.
BTW since they distributed copies of the Archive across jurisdictions, why the heck didn't they do the same with legal entities? Redundant copies aren't much of a protection if the organization can be coerced into modifying data, as western governments have been all too tempted to start doing.
Well, the IA servers won't be offered for sale because IA decided to buy new servers, and similarly the buyer is in all likelihood really interested in the data.
Selling the data while claiming they 'merely' sell the servers is probably not fraud, but I don't think a judge is likely to look well on it. I can see the publishers arguing the data has monetary value and demanding restitution. Another thing is that IA relies on their designation as a library to avoid copyright legal issues, and the buyer will probably need the same designation (or at least to exist outside of EU/US). Still, with good will and good lawyers all this might be doable.
Nationalization is heavyweight and unlikely. If needed, someone will have to push for this behind the scenes. This is a big mess though, we may need every option we can get.
Why didn't IA think of separate legal entities in advance? Judging by the fact they got themselves into this, I suspect the foundation is not very well run...
I don't know. There was that point right after society became aware of COVID that everyone was imagining pulling together for the common good, before the political machine grabbed the crisis and performed the all-too-American response of corporate bailouts coupled with tough luck for everyone else. I can only imagine they got caught up in that feeling, and thought everyone being stuck at home would be a good time to demonstrate the regressiveness of copyright. Unfortunately copyright infringement doesn't have equitable punishments like actual property crime but rather is playing with fire. If they had thought ahead, they could have pulled a similar stunt but with definite inventories of books sitting on the shelves of closed libraries. Alas.
