The mission of preserving human culture is far more important than respecting rent-seeking copyright holders. At the end of the day, The Internet Archive has good intentions and is morally in the right.
The time has come to consider changing the laws to allow for truly fair use, especially for physical items scanned to digital (e.g. books), old video games, and more.
It's about selecting for the common good over the extremely low-value proposition of helping rent-seekers preserve an infinite zero-effort stream of income.
TIA is one of the best things to emerge from tech, all thanks to the tireless and complete dedication of the founder: Brewster Kahle.
I don't know if they still do it, but pre-pandemic they offered tours of their HQ in San Francisco. It was really cool to meet the team and see their setup, and an amazing opportunity to meet Brewster and hear the conviction in his voice as he described his vision for The Internet Archive. It's a very special thing.. imagine if it didn't exist? I am feeling tears coming just considering such a possible reality.
But why do you say that? Kindle unlimited is a pretty similar to a library and many publishers support it and include their books. Yes, it costs something per month, but it's much less than the overhead costs for librarians, heat and a building. Many municipalities could actually save money by closing their libraries and giving everyone with an active library card a subscription to Kindle unlimited.
I'm not suggesting they do that. I like the old buildings. But it's important to note that copyright holders are coming up with many new and innovative ways to help readers get books and authors get paid.
there is a massive difference between a company selling a subscription service and the government using public money to provide free access to everyone with no strings attached
> Kindle unlimited is a pretty similar to a library and many publishers support it and include their books. Yes, it costs something per month, but it's much less than the overhead costs for librarians, heat and a building.
How much do you think you personally pay for libraries? 1 cent a year? Half a cent a year?
And it's not "many publishers support <a proprietary thing>", it's "libraries are obliged to have all books, and in many countries publishers are made by law to provide libraries with copies of their books".
> But it's important to note that copyright holders are coming up with many new and innovative ways to help readers get books and authors get paid.
This can be taken as being positive about piracy or negative about libraries. I think the real question is not which way I mean it but why does the average user see one as positive and the other as a negative, thus causing the conflict when the two are linked by this statement.
You are implying that two people reading the same physical book is piracy with your statement. With that kind of logic someone reading the same book twice that they only paid for once would be piracy if the author wished that they could have the book burnt after one read through.
The natural state of copyright is that it doesn't exist, it's only created because governments believe there is a benefit in enforcing it, be that benefit a greater production and distribution of works or more money in politicians pockets from lobbyists.
Implying that there is any legal copyright piracy is ridiculous as by it's definition the copyright does not extend to that area so there is no piracy. The closest you can come to the concept of legal piracy would be copyright privateering across legal jurisdictions.
Disclosures: I've written a book I'm currently trying to get published. Also, almost all of my professionally-written (as well as personal) code is open source. And I have used the Wayback Machine extensively.
To be honest, I'm having a hard time getting upset over this lawsuit. As best I can tell, IA isn't getting sued over having scanned the books. They're not even getting sued over lending them out. Instead, they're getting sued over lending out more digital copies than the number of physical copies they had purchased.
The books would be no less well preserved if IA had not decided to do this. Access would have gone down, temporarily. The pandemic would have sucked that one little bit more (though honestly, a drop in the bucket for what the people most impacted were already experiencing). And... that's it. It really has no long-term ramifications, aside from whatever legal precedent it sets (if any).
I really like being able to write open source code in my day job, and I appreciate information freedom. But I don't think those principles apply here. I really do think this is just a straightforward case of an organization overstepping their bounds and getting slapped down for it.
The thing is that (probably because they didn't want to force the issue), the publishers seem to have been OK with lending out digital copies so long as the archive had a corresponding physical copy. Which AFAIK is not clearly covered by first sale doctrine but there's an argument to be made.
OK, well enough.
But TIA then does something that clearly violates copyright. And the fig leaf that is "But COVID" really doesn't make a difference.
And, yes, copyright terms are too long etc. but I'd actually be willing to bet that most extra lending TIA did was for recent works.
Digital lending has no legal basis in either the controlled or uncontrolled format. In fact, the argumentation is suspiciously similar to the ReDigi case. Courts generally have upheld that first sale ends when copying begins, even if the end result is the moral equivalent of a sale rather than a copy[0]. And, indeed, the publishers were grumbling about controlled digital lending (CDL) before IA pulled the National Emergency Library (NEL) stunt.
The lack of legal foundation for CDL is not entirely an accident, however. First sale and similar copyright exhaustion doctrines are hard-fought and won rights of the reader. But these rights rely on the fact that no actual copying is taken place. When you interact with any copyrighted work using a computer, there is an almost gratuitous amount of copying going on. If you so much as cough on the work, you are breaching copyright. Publishers know this, and they have been very successful ramming "licensed and not sold" language through the court system.
The funny thing is, while pirates have been stereotyped as waving their hands in the air and shouting "technology" to opt out of the law, publishers have been way more successful at doing the same, even though they fought tooth and nail against digital distribution.
[0] In the ReDigi case the "digital resale" software was even specifically engineered to erase parts of the file as they were sent to the new owner so that the number of duplicate bits floating around would be negligible at any particular time.
The history of software licensing is sort of interesting. I had occasion to dive into it a year or so ago for a book and it seems to have been institutionalized with the IBM/360 because 1.) IBM was feeling pressure to sell software independent of hardware for antitrust reasons and 2.) All of the existing IP protection mechanisms seemed pretty iffy at the time.
Software is one of the key aspects of the history of copyright maximalism, too. If you strictly applied the utility rule, software would only be patentable, not copyrightable. However, CONTU made a big mistake and convinced Congress to grant software copyright, which created a whole bunch of unanswered legal questions that are only now getting resolution through judicial legislation[0].
A decade and change later when Intel started asking for hardware copyright[1], Congress actually realized their mistake and created a sui generis right for integrated circuit designs ("maskwork rights"). We never complain about maskwork cases because they are incredibly limited, have a 10 year lifespan, and basically only cover direct copying. Software would have been no different had Congress not made the mistake of handing the full enchilada of copyright monopoly protection - including all those pesky questions about derivative works - to software companies.
[0] e.g. is linking infringement? can you copyright interfaces?
[1] Fun fact: before this, it was entirely legal to X-ray chips and reproduce them. In fact, the NES famously shipped with a bootleg 6502 that only had decimal mode missing because that was the only thing MOS could patent.
The thing the publishers fear is that there is one and only one sale of the book to someone who then turns around and makes infinite digital copies to anyone who wants to read it.
This just doesn't work, even if there's a rich person who is willing to pay quite a bit for the first copy. The rest of the people get excluded from the decision making and the rich person is the only one who decides which books are worthy of being rewarded.
>And... that's it. It really has no long-term ramifications, aside from whatever legal precedent it sets (if any).
No that's not it.
The amount of books some people can afford is zero. Lawsuits like this are making the general population dumber, more ignorant, poorer, it accomplish nothing besides increasing inequalities and making society worse for everyone. Libraries can be good if you're into very mainstream topics, and you're fine with brushing the surface of the subjects you're interested in or if learning outdated stuff is ok to you, and of course you still need to live somewhere where libraries are decently funded and where book banning isn't a thing. All books should be accessible freely, to anyone, at anytime, anywhere.
> The mission of preserving human culture is far more important than respecting rent-seeking copyright holders
That genuinely may be so, but "this law i broke shouldn't exist" is not an advisable legal defense.
Also, what you call "rent seeking" others would call "return on investment". I do think there is a grey area here, "fair use" being one example, but i think summarily discounting distributors and publishers wholesale doesn't help your stance.
"This law I broke shouldn't exist" is the basis of civil disobedience and is how many of the freedoms we enjoy were won and the oppressive laws of recent history were struck down.
It may or may not succeed in courts, because our "justice" system is anything but. Even if it doesn't succeed in court, it's still a worthwhile stance and it may succeed in other ways. Especially if enough people who recognize where justice actually lies stand up to support those taking the risk to point it out.
The line between "rent seeking" and "return on investment" lies at the spot past which those who produced a work have been fairly compensated for their time and effort, past that, it's rent seeking. If you want a good metric, break the return down to an hourly wage for each participant in producing the work. Does it seem obscene? That's because it is.
Rent is the basis for all forms of savings through investment. It allows people to work hard for a time and then take some time off. Yes, some will be rent seeking while drinking rum at the beach bar, but so will the sick people and the retired people. Rent makes it possible for society to offer disability insurance and retirement savings.
And Usury was well known to the ancients as one way to destroy a society.
Rent is not the basis of savings through investment, yield is; of which rent is one kind. Renting a movie at blockbuster made sense in the 90s as plastic shells of magstripe were a scarce good. Today, literally millions of devices could stream their entire lib for free via ad supported streaming apps.
We live in different times. Holding on to artificial constraints for old-times business model nostalgia will look so quaint in a few decades.
Those “ad supported streaming apps” are still reliant on copyright.
Without it, why would anyone choose to view the movie with ads when they can just download it and watch it with no ads?
(Legally, since in this hypothetical, copyright doesn’t exist.)
Or are you just arguing for ad-supported viewing of content? Which is what currently exists for an enormous body of material. See, for example, YouTube.
There are two ways to change the laws in America, through legislatures and with the courts.
The courts are the most efficient way to repeal something you don’t like. There are hundreds of legislators, you need teams of lobbyists to influence them, and there’s no guarantee that they will take up your issue in their agenda. Furthermore, if you want to change one thing, everything gets thrown on the table as being liable to change. You may win in one area but lose in a lot of others, and sometimes you will lose in non-obvious ways.
The judges don’t want to rock the boat as much as politicians do. If they make a decision that makes precedent, it will be very focused and very specific. But, if you want to take an issue up in the courts, you need to sue, or be sued. Courts are not hypothetical in the way that legislatures are.
I think fair use is a perfectly valid legal defense. Grey area is one way to put it, another way to put it is a legal area lacking precedent. If it were not for fair use, copyright law would violate your right to free speech. Fair use let’s you use copyrighted material for criticism, parody, and education. Covid created a situation where people’s access to works was restricted, with the only reason being legal limitations (copyright law). IA sought to educate people irrespective of the limitation. I don’t know how IAs legal team is planning to defend their client, but fair use would provide a defense. This case could end up with a precedent that says that under exceptional circumstances, the scope of what activities are covered under fair is expanded.
Using your same logic, I will single-handedly decide that all software companies (and the developers working there) have received enough compensation for their efforts, and demand all their services and code be made available for free. As long as you got one paycheck from those months of work, now I want it for free.
It's interesting to consider that there are books, still in copyright, that were published before any digital computers, let alone software companies, existed.
It puts the extreme absurdity of modern copyright law in context. 20 years is extreme. The modern "standard" is the entire life of the author + 70 years on top. This is indefensible.
I agree and not going to argue that here. But that’s the way the rules are right now, and publishers have the full weight of the law to enforce their rights as that’s what the current state of things allows.
Not knowing anything about you, I’m going to assume you mean code that you created and chose to release as OSS. That’s your choice, and publishers have the same right to release their works under different terms (through agreements with the authors they have signed, etc). You don’t have any say over what other creators choose to do with their works, and if they choose terms you don’t like, you can’t just ignore them.
Without strong copyright laws, the choice you make is just as enforceable as the choice they make.
> I’m going to assume you mean code that you created and chose to release as OSS.
It doesn't matter how the output is licensed; I'm paid for the process of creating that output, not for the perpetual profiting over that finite output. That's the point you're missing.
Every company is different, but the vast majority are moving to a subscription model where users are charged monthly to use the same code over and over. For licensed (non-subscription) software, code can live through many major revisions where the customer pays over and over for the same code to renew their license.
If you think it would be nice to get paid per run, then you should have gone into mainframe programming, because that is (more or less) how it works (licensing fee based on how many units the code could process, which would go up if you upgraded the CPU). Moving away from that was one of the innovations of UNIX and PC style licensing.
Just remember that there are thousands of authors who are only paid because the publishing company is able to charge for books. The same goes for software firms that also depend upon copyright. So if you're a programmer, ask your boss if he or she would be willing to put all of your work into the public domain.
I'd be completely sympathetic if the commercial entities were willing to work with (or had tried) and strike a reasonable compromise with TIA. Instead, they've chosen to go for blood and sue a valuable, well-intentioned organization who tried to help folks have access to information during the pandemic.
Maybe not "this law I broke shouldn't exist" on its own, but "this law I broke shouldn't exist according to the constitution of our country" or "this law I broke shouldn't exist because it conflicts with this other guaranteed legal protection" is a perfectly ordinary defense. It's one of the core functions of a functioning judicial system.
Maybe if the industry hadn't bribed the government over and over to extend copyright again and again we might not call it rent seeking. 12 years of copyright is almost reasonable. But current copyright durations are pure rent seeking.
This wasn't about preserving archives, or distributing old works that should have been in the public domain by now, or even "lending" out digital copies backed by physical copies they owned. This was about distributing unlimited digital copies of current works (some published just the year before). Legally and morally I cannot see this as any different or better than blatant copyright piracy.
The Internet Archive does a lot of good things, most clearly legal, others gray areas that I think should be legal. This stunt was different.
Not truly "unlimited digital copies" – just extra time-limited checkouts, as a temporary expansion of the prior 1:1 lending, and only while most of the country's libraries were closed. Those limits & circumstances are relevant to the motivation for the act, and the available legal defenses.
If the nation was founded today people would never build a single library and they would be deeded evil.
Requiring libraries to buy books is an evil practice. As a function of copyright you should have to donate a book for every 10 numbers sold. Libraries create readers who are necessary for writers/publishers.
If they want to change the laws, they could be agitating for a system such as Australia where authors get paid when their books are checked out from libraries. For many Australian authors, it is where the majority of their writing income comes from. Note that it is authors and not publishers receiving this money from the Australian Government. It wouldn't even cost that much, given how little people actually read on average.
Seeking to change a law by breaking it has worked before in American history, but only when the supreme court wants to change the law, and a carefully arranged test case is constructed to bring before them. Even then, test cases arranged by well-meaning groups have failed and instead strengthened the precedents they were expected to contribute to overturning.
Taking a copyright infringement case before one of the most textualist and conservative courts we have had in decades is not a good plan for people who want a right to whatever it is that the IA was doing read into the Constitution.
Laws are only as meaningful as we allow them to be. If our elected representatives no longer represent the will of the people, they must be removed to preserve the integrity of our society. Often they are not, which is unfortunate.
Just look at the body of unelected officials that, as a whole, are hell-bent at dismantling precedents in the name of constitutionalism, allowing for states to pass inane laws restricting rights under the guise of morals.
There is cancer in our society and it begins with our swill laws that are selectively enforced, are never revisited, and likely do not reflect the will of the people, and ends with legislative incumbents that do not represent modern progressive values.
I have a suspicion (shower-thought level, not held strongly) that "morality" is merely the set of rules that are beneficial for a culture. Laws are normally described like that; I would say the difference is that lawmakers are a subculture who make laws to encode what is beneficial for them, and therefore a nation's morality and laws only line up to the extent that the lawmakers represent the interests of the broader society.
I think what happened is the term "rent seeking" entered the zeitgeist, and a lot of people didn't bother to look it up but rather just tried to infer the meaning through context, and arrived at "somebody who rents things out" which can easily morph into "the software company that makes you have a subscription rather than just purchase it" or something like that.
People come by it honestly as for most people that's how they learn the words, and certainly the vast majority of human history language and meaning has been transmitted that way.
I think it applies perfectly. Just like with houses the creative works need to first be created - but the ones profiting in perpetuity by collecting rents are more often than not the original creators.
Then we should seek to change the law? I completely agree with your sentiments for the most part, but the legal footing of the IA has always been shaky in places.
I know I've taken advantage of getting software from the IA that is still commercially sold on places like gog.com, so while overall I regard the IA to be "morally in the right", there's little doubt to me personally there is a ton of content on there that shouldn't be.
I'm an author but I'm not rich. Therefore the only way I can afford to write books is because people pay the publishers who, in turn, then have money to pay me.
If you want to preserve human culture, you want to make it possible for the non-rich to help create it.
If you want to write books for free, go to it. But what the IA did was just plain wrong. Plenty of bookstores like Powells were operating remotely during the pandemic. Many libraries had curbside pick up. Amazon was still delivering. There was no reason to run up the pirate flag.
Is it the only way or the most convenient way? The problem here is that that convenince afforded to creators has a substantial cost for everyone, including other creators.
What about what libraries do in general. By buying some number of copies and then letting many people read those copies, it leads to fewer people buying books overall leading to less pay, meaning those who depend upon income from writing books to be less able to afford continuing to write books.
And any arguments along the lines that libraries actually lead to increased numbers of readers and thus overall increase book sales could also apply to this instance as well (I've even seen such arguments made about piracy in general, though I've never seen any conclusive research indicating if the argument is realistic or not).
> The mission of preserving human culture is far more important than respecting rent-seeking copyright holders
Based on what? Rights-holders are able to make a living because of copyright protections, it makes no sense that your rhetoric raises up these cultural works as vital for preservation but simultaneously dismisses the creators as unworthy of being paid.
The time has come to consider changing the laws to allow for truly fair use, especially for physical items scanned to digital (e.g. books), old video games, and more.
It's about selecting for the common good over the extremely low-value proposition of helping rent-seekers preserve an infinite zero-effort stream of income.
TIA is one of the best things to emerge from tech, all thanks to the tireless and complete dedication of the founder: Brewster Kahle.
I don't know if they still do it, but pre-pandemic they offered tours of their HQ in San Francisco. It was really cool to meet the team and see their setup, and an amazing opportunity to meet Brewster and hear the conviction in his voice as he described his vision for The Internet Archive. It's a very special thing.. imagine if it didn't exist? I am feeling tears coming just considering such a possible reality.