Re:Authors, Publishers Condemn the 'National Emergency Libra...
by lwf on Tuesday March 31, 2020 @02:02AM
(#22735248)
Their online emulators are explicitly authorised via a DMCA exception granted by the Library of Congress, c.f. https://archive.org/about/dmca.php
> Following deliberation, the Copyright Office ruled in late October 2003 that four exemptions should be added to the anti-circumvention clause of the DMCA, to be valid until the next Copyright Office rulemaking in 2006, including two that are related to the Internet Archive's original comments: >
> Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. > Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.
Re:Authors, Publishers Condemn the 'National Emergency Libra...
by comex on Tuesday March 31, 2020 @04:25AM
(#22735809)
The DMCA exemption process is specifically for the DMCA's anticircumvention clause, basically a ban on circumventing DRM. Actual copyright infringement is a separate offense (and in fact largely orthogonal), and the exemptions don't apply to it.
- Their e-book library during normal times, with the one-borrower-at-a-time restriction (the one whose temporary removal is at issue here). Even with that restriction, "it seems like a stretch" from a legal perspective. [1]
- Their online emulators for old computer software and games. Copyright lasts for around a century, so those are all still copyrighted unless explicitly released by their authors. Some of them are orphan works, which might make a difference under EU law [2], but not under US law, and some of them aren't even that.
If someone sues the Internet Archive over the National Emergency Library, there's a good chance they could get a ruling that lending e-books without permission from the copyright holder is illegal regardless of restrictions, effectively forcing them to shut down the library completely.
The emulators probably wouldn't be directly affected by a lawsuit over the library, since there are different issues and different copyright holders involved, so I'm less concerned about them. Still, I fear that a lawsuit could lead to increased scrutiny and criticism of the Internet Archive in general, which could possibly lead to someone else suing over the emulators.
[1] https://arstechnica.com/tech-policy/2020/03/internet-archive...
[2] https://en.wikipedia.org/wiki/Orphan_Works_Directive