> I'm disappointed with Internet Archive. They're opening themselves up to a huge lawsuit, and I'd hate to see their mission derailed because of it.

Not only that - if this goes to court, there's a really good chance that the concept of Controlled Digital Lending (i.e., libraries lending out scans backed one-to-one by physical books, which many libraries including Internet Archive have been doing for a long time before this) ends up in court too, and a judge says, what the Internet Archive did is illegal because the whole idea of Controlled Digital Lending was never legal in the first place.

I think it's foolish to trust that the courts (especially the courts today) are going to be sympathetic to fair use and to narrowing copyright.

There's a theory that IA leadership is intentionally trying to force a landmark court case:

https://twitter.com/rahaeli/status/1244257620548038656

That’s a pretty good angry Twitter rant. Here’s the (easier to read) link using threadreaderapp.com, my new found best friend!

https://threadreaderapp.com/thread/1244257620548038656.html?...

The premise that they would be trying to purposefully shove it into the court system to achieve a ruling one way or the other is interesting. That’s how you play hard in the paint!

wow. that website is a great invention

Fantastic product! Just found out about it, some nice folks pointed it out to me recently after complaining about how much I hate trying to read long Twitter threads :)

Hope it goes better than Eldred v. Ashcroft.

"Not only that - if this goes to court ..."

They gave authors the ability to opt out. From the FAQ:

"If I am an author and I do not want my book to be temporarily available during this crisis, how can I remove my book from the National Emergency Library? Authors who do not want their books in the National Emergency Library should send an email to [email protected] with “National Emergency Library Removal Request” as the subject line. Please include each URL of the book or books you would like to have removed. Please allow up to 72 hours for processing as we are a small team."

One could argue it should be an opt-in firstly. I find that difficult for creating the same service but just.

I'm not sure that opt-out makes a meaningful difference in whether it is likely to end up in court. I don't expect that Napster giving artists an opt-out form would have saved them, for instance.

"Give away" implies permanence (as does the reference to BitTorrent, though I realise that strictly speaking it doesn't necessarily entail illegality), but according to the post they're still limited to 2 weeks before they have to be checked out again, and they can't be distributed further. They've just removed the concurrency limitation so digital lending isn't backed 1-to-1 by a physical copy of the book. So yes, they're lending more than they physically have, but it's not permanent. To be clear, I'm not claiming it's legal, just pointing out it's not permanent. (I'm also not claiming you're saying it's permanent -- you do say "lend out" later on -- just clarifying in case anyone jumps to conclusions.)

They offer an opt-out process that suspends lending completely. If we're going to talk about the alleged illegality of a controlled process for sharing data, I'd like to start with ad-tracking, since that clearly affects a larger group of people and because its legality seems to rest on a similar premise (at least, to this layman).

> They offer an opt-out process that suspends lending completely.

That's not how copyright works in the US. Maybe it should be, but it's not. The owner of a copyright gets to say how it's used, they don't merely have a right to refuse to uses if they're aware of them.

There are certain exceptions, such as compulsory licensing (e.g., in the US you can get a license to cover a song at a fixed-by-law rate) and fair use, but those aren't opt-out mechanisms either - those are permissions that the copyright holder can't refuse.

Maybe it should, but the law doesn't work that way right now.

> If we're going to talk about the alleged illegality of a controlled process for sharing data, I'd like to start with ad-tracking, since that clearly affects a larger group of people and because its legality seems to rest on a similar premise (at least, to this layman).

Copyright doesn't protect data, it protects the creative expression of ideas. Data itself isn't copyrightable: https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R.... Therefore, nobody is infringing any copyright I have by tracking my behavior via ads.

Maybe it should (or maybe copyright shouldn't protect anything), but the law doesn't work that way right now.

>That's not how copyright works in the US. Maybe it should be, but it's not. The owner of a copyright gets to say how it's used, they don't merely have a right to refuse to uses if they're aware of them.

I'm not sure how Youtube et al.'s situation is different in these regards. In both cases, the takedown process is covered under the DMCA, no?

>Copyright doesn't protect data, it protects the creative expression of ideas. Data itself isn't copyrightable: https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R.... Therefore, nobody is infringing any copyright I have by tracking my behavior via ads.

As an artist, I'd hold that much of my expression is tied up in my data. Likewise, my data is part of the creative expression that I use to market my works. For example, the websites that I choose to visit are part of my subcultural identity and intentionally signal to others that identity, an expression of my personal creativity; the works that I post are dissected and sold as data to market to me. This is an integral aspect of the interaction model of so-called Web 2.0 platforms.

...I'm sure this hasn't been argued before, but should we decide to open the can of worms of whether or not libraries should "be"...

Ultimately, these issues seem to be unexamined, to some extent. I wonder if there's some hesitation to invite a floodgate-opening should a decision go sideways.

> I'm not sure how Youtube et al.'s situation is different in these regards. In both cases, the takedown process is covered under the DMCA, no?

The DMCA (specifically OCILLA / section 512) is about the liability of YouTube as an intermediary who hosts other people's videos. If I decide to post a YouTube video where I do a dramatic reading of the Windows source code, I am still breaking the law - the DMCA merely protects YouTube from liability from making copies of my video and therefore making copies of the Windows source code. In return, the DMCA gives Microsoft an easier-than-usual process to ask YouTube to take my content down. They can still sue me, if they want; they'd have to go to court instead of just sending a letter, so they'd probably decide that it's enough to just get YouTube to remove the video and not bother suing. But they could.

Notably, you can't use the DMCA safe harbor provisions to give yourself safe harbor. I cannot, on my personal blog which I host, post a DMCA contact address and avoid liability for posting copyrighted content. (Probably I'd trick some copyright-scanning bots and get away with it in practice provided I took down anything they complained about promptly, but it's legally meaningless.)

Understood. Since you're knowledgeable: this goes back to some other portion of copyright law, yes? Are copyright holders required to sue in order to force the alleged infringer to cease infringement? In the process of the suit, when might an alleged infringer be forced to take down the material in question? And under what circumstances would they claim damages versus a simple takedown (if, for example, the work in question is out of print)?

Also, I'm curious to know your reaction to the second part of my reply.

I think the mechanics of how to actually take down content is getting pretty far past my knowledge but I suspect this falls in the general category of "people still have the free will to break the law" and isn't about copyright law particularly. The takedown process is specific to the DMCA's concept of online service providers - YouTube keeps its safe harbor as long as it promptly responds to takedown notices (and counternotices). But if you want some content off my personal blog, there isn't a specific "takedown" procedure - you just tell me that every time someone downloads it, I'm making yet another illegal copy, so it's probably a good idea for me to get rid of the page. If I refuse, I think your legal process is roughly the same as if I were defaming you or whatever on my blog.

https://www.law.cornell.edu/uscode/text/17/504 has some details on damages (but also note https://www.law.cornell.edu/uscode/text/17/412 , that you need to register copyright to get the option of statutory damages). I think (but I am a bit unsure about this) that if I posted some copyrighted content on a blog without permission, I'd be liable for the $750 in damages if the copyright holder had registered it and found it worthwhile to go to court to get it.

I’m not fluent enough in legalese, apparently. Is that $750-30k per infringer or $750-30k per copy? For a website, that’s a huge difference as every visitor initiates a new copying event. (As opposed to something like a printing press where you can strike off 10k copies in a single go).

Law exists to serve people, not the other way round. And I am a big proponent of authors' and creators' rights to get paid. There are times when it is appropriate to break the law.

> but the law doesn't work that way right now.

Are you certain you know how the law works right now?

Authors think they're better than musicians it seems.. .

Actually as an author I am very sympathetic to what happened to musicians and I desperately hope it doesn't happen to us too.

It literally will, you don't think GANs and natural language processing will improve in 30 years to the point of autogenerating stories?