Did they think they could draw a confrontation with the publishers and somehow come out victorious? Or that the publishers and their legal teams would voluntarily look the other way?
I still can't tell what their plan was. Or what point they were trying to make. Or how they expected to handle the legal challenge.
It's a shame that they tied this to the Internet Archive. I seriously doubt the people who donated to the IA wanted their funds to be used on this.
I myself borrowed an old book (which I already owned, but I wanted to compare differences among versions), turned a few pages, but then got distracted and didn't open it again (the virtual loan expired).
I think it's a shame that people are trying to crucify an exemplary organization for doing a charitable act (no good deed goes unpunished, and all that).
And, to be quite honest... Most of the books are at least 20 years old... So it's not like they were distributing best sellers that were actively being sold.
I think it's a situation where publishers "are being forced" to be litigious, because they have an obligation to their shareholders to always take the option that yields more money; the Internet Archive just happened to leave themselves open to being a target, so they _have_ to do it.
This reminds me a bit of Commander Chris Hadfield's cover of Space Oddity, and if I recall correctly, that David Bowie didn't own the rights to his own song and thus was unable to approve or deny an extension for Cmdr Hadfield's video on YouTube (and the controversy of the takedown).
This is not true, and I wish people would stop repeating it like gospel.
The actual standard, from In Re Walt Disney, is that business decisions aren’t reviewable unless “the exchange was so one-sided that no business person of ordinary, sound judgment could conclude that the corporation has received adequate consideration".
In, Shlensky v. Wrigley, the Chicago Cubs were sued for refusing to install lighting for nighttime games: their president believed baseball was best as “a daytime sport." This is absurdly nebulous (and kind of bizarre), but the Cubs nevertheless won. That decision was based on Davis v. Louisville Gas and Electric Co, which says “the directors are chosen to pass upon such questions and their judgment unless shown to be tainted with fraud is accepted as final. The judgment the directors of the corporation enjoys the benefit of a presumption that it was formed in good faith, and was designed to promote the best interests of the corporation they serve.”
While you can get sued for nearly anything, the legal standard is basically "Did you egregiously rip off the company so that you could make money?", not "Could you have squeezed ten cents more out of the public?"
the rule of wealth maximization for shareholders is
virtually impossible to enforce as a practical matter. The
rule is aspirational, except in odd cases. As long as
corporate directors and CEOs claim to be maximizing profits
for shareholders, they will be taken at their word, because
it is impossible to refute these corporate officials'
self-serving assertions about their motives.
— Jonathan Macey
Ford's response to the Dodge Brothers was:
My ambition is to employ still more men, to spread the
benefits of this industrial system to the greatest possible
number, to help them build up their lives and their homes.
Shlensky has a fairly similar fact pattern. The Cubs decision was supposedly driven by non-economic factors, namely beliefs about 'proper' baseball and possible effects on the neighborhood. However, they left open the door that these factors might themselves affect Cub's business prospects, a door that Ford slammed shut on himself. As a result, the Court found:
“Plaintiff in the instant case argues that the directors are
acting for reasons unrelated to the financial interest and
welfare of the Cubs. However, we are not satisfied that the
motives assigned to Philip K. Wrigley, and through him to the
other directors, are contrary to the best interests of the
corporation and the stockholders. For example, it appears to
us that the effect on the surrounding neighborhood might well
be considered by a director who was considering the patrons
who would or would not attend the games if the park were in a
poor neighborhood. Furthermore, the long run interest of the
corporation in its property value at Wrigley Field might
demand all efforts to keep the neighborhood from
deteriorating. By these thoughts we do not mean to say that
we have decided that the decision of the directors was a
correct one. That is beyond our jurisdiction and ability. We
are merely saying that the decision is one properly before
directors and the motives alleged in the amended complaint
showed no fraud, illegality or conflict of interest in their
making of that decision.”
It makes people scroll side to side to read the quote.
Please don't use code blocks for quotes.
And frankly, the fact that there's no other way to indicate a block quote is absurd.
In Ford v. Dodge, Ford was sitting on $60M, from which it had been paying dividends. These were stopped to reinvest the money in new factories. The Dodge brothers, who owned about 10% of Ford, sued because, per Ford's own comment, his decisions were driven by charitable interests rather than business judgement.
In Shlensky v. Wrigley, Shlensky was a stockholder who believed that the Cubs were leaving money on the table by not holding night games. He sued--and lost--because the Court found that to be a plausible business decision.
In Davis v. Louisville Gas Electric Co., Davis (or actually, his estate) held one type of share in the company, and opposed a reorganization plan that would have converted them to another, to his potential detriment.
In re Walt Disney was a derivative suit by shareholders over the hiring and firing of Michael Orvitz, and whether his (lucrative) compensation was in the company's interests.
The common theme is that the board of directors (and the CEO they appoint, etc) have wide latitude to run the company, even in ways that don't immediately benefit some (Davis) or even all (Shlensky) shareholders. They can certainly go too far (Ford) or fail to exercise much judgement at all (Caremark, where the director sold the company for a value plucked out of thin air), but as Mercantile Trading says "generally [...] courts will not upset the decisions of either directors or stockholders as to questions of policy and business management. An abundance of authority in other jurisdictions might be cited to the same effect"
Publishers have standing and as such they have to file the suit. They are only being forced into this because IA is breaking known law and did so knowing they were.
>The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War. The stated object of the act was the "encouragement of learning," and it achieved this by securing authors the "sole right and liberty of printing, reprinting, publishing and vending" the copies of their "maps, charts, and books" for a term of 14 years, with the right to renew for one additional 14-year term should the copyright holder still be alive.
Knowledge and culture is not anyone’s property. It is the collective work of all of humanity and ought to be treated as such.
Even setting aside the law, there is a question of ethics. If I give you a license key to my software, and you give it away to 10 of your friends, would you consider your act charitable?
Internet Archive is a nonprofit with a philosophical mission. I don't agree with them all the time, but I view that their responsibility is to act primarily in accordance with their values. Unfortunately, they ended up taking on powers that they may not be able to handle, but I believe that they are in the right and the publishers are in the wrong, which is a more important conversation to me than whether their decision was strategically prudent (probably it was not).
> Even setting aside the law, there is a question of ethics. If I give you a license key to my software, and you give it away to 10 of your friends, would you consider your act charitable?
All software that I have worked on outside of my job is free and open source, so I would. I believe that it should be mandated by law that all non-trivial software be free and open source. To qualify this, I wouldn't do this on an individual level without your consent if, say, you were a small creator and you depended upon licenses for your livelihood. But small creators are not the plantiffs in this case, nor the people who primarily benefit from strict intellectual property laws -- massive publishing companies are.
This is a specious ideology without a mechanism to reward creators. At the moment that mechanism is money, either through sales, or for a rare few patronage. Without reward, creation is limited to the otherwise idle, and the collected work of all humanity lessened.
Personally I advocate the right to buy at a reasonable cost (as reasoned by society). Once a reproducible work is released to the public, you can't refuse my payment for it.
Intellectual property benefits publishers, not creators.
As Abraham Lincoln said “ That is their argument, and this argument of the Judge is the same old serpent that says you work and I eat, you toil and I will enjoy the fruits of it. “
Whenever, you appropriate for yourself the fruits of other people’s toil, you are sowing seeds of tyranny.
They deserve to be paid (eg, by a University), but they do not deserve ownership in terms of exclusive rights to its use. Can you imagine how far back science would be held if any applications of Newton or Einstein’s work required royalties to their estate? Are suggesting that the fact that they aren’t is tyranny?
Nope. They may have standing, but they're responsible for their own actions.
> Seriously the fact that book is well read or old does not matter
It does, because it means the damages (lost potential sales) are low/nonexistent.
Myself, I buy a lot of old books - but from the thrift store. The only reason the thrift store sells them is because people dump their valueless books on them.
Actually, they kind of are forced into action here. Even if they were okay with the IA doing this (which I'm sure they're not) they still have to defend their copyrights, otherwise they could be declared abandoned and the works would then be in the public domain and could not be defended when someone they don't want to use their works then uses them
When they announced it, I wrote a friend at the IA and told him it was a big mistake. I tried to get them to change their mind. They had plenty of warning and thought their good works would insulate them.
They did bad things in regard to endangering their institution. There is nothing objectively, morally "bad" about the National Emergency Library though.
Authors don't "go out of business" if their words are copied without their permission. So the answer to your question will always be "no one". But they have rights to their words nonetheless.
I like the idea one of the Dreamwidth people threw up: it was probably intentionally aiming to bait a court case:
https://twitter.com/rahaeli/status/1244257620548038656
(Thanks to 'Apocryphon for posting it originally on HN: https://news.ycombinator.com/item?id=22734145 )
This doesn't necessarily seem out of line with something Brewster et al. would do, and it is the simplest explanation, so I tend to be on the side of it.
I wonder what they had thought their chance of winning was at GHG height of the panic, and what is it now.
I also wonder why would they risk their other, very valuable and unique work, knowing full well that the chance of turning bankrupt is definitely nonzero.
I'm not annoyed that my donation is being used for this. I trust them to do what they think is best. Although I do have my doubts.
I'm beginning to suspect this is why they tied their actions to the IA in the first place. It's a good excuse to get people to donate who otherwise wouldn't support this action.
This smells of a lack of risk management more than bad risk management.
Maybe they let their political goals eclipse their IA goals, and they thought that tying this lawsuit to the life or death of the IA would force IA fans to donate?
If they win (seems unlikely?) they expand fair use. If they are destroyed, then they become a poster child for the excesses of $150K statutory damages.
That's fair. But the consequences should have been obvious. Part of launching a test case is segregating the liability.
If IA wanted to launch a legal challenge, they should have segregated the risk from the main organization. Setting precedent with out-of-copyright and licensed works would have been one way. Allowing a third party to run the National Emergency Library would have been another.
Instead, it seems they thought of an idea and ran with it. For an organization aiming for longevity, that's poor process.
They already did allow out-of-copyright works to be downloaded as many times as anyone wants, without DRM. They're out of copyright. That's unambiguously legal and always has been. There, they've done what you wanted them to, they "segregated the risk from the main organization" (you'd have to have a pretty warped worldview to imagine it makes a difference, but nothing in your comment would have actually done that).
Allowing a third party to run the National Emergency Library would have been another.
I've read this line over and over again. Is this what you meant by it? "The organization that has all of the books and is registered as a library shouldn't have run the library that's legally grounded in them being legally-recognized as a library and having all of the books that they have."
If so, I completely disagree with you.
This makes way more sense than you're giving credit for. IA isn't run by a five year old.
As it is, the entire IA infrastructure could be torn apart overnight.
Wouldn't be legally recognized as a library, which was something the IA spent years clawing to be recognized as.
but has no access to the rest of the IA's assets
This would be incredibly stupid and would require a complete restructuring of how the IA works (despite the belief of seemingly many people in this thread, the IA is significantly more than the Wayback Machine).
Then, in the event of a lawsuit, the only thing the publishers could seize would be the actual books.
Which would still be bad and morally wrong, and is more likely to happen when it's its own, non-library entity.
As it is, the entire IA infrastructure could be torn apart overnight.
No, it couldn't. Not a bit more than it could be five months ago.
That's an important nuance that I and others missed.
> No, it couldn't.
Why not? The publishers win a judgement for a value that exceeds that of the IA's total assets, and all of the IA's infrastructure gets seized and auctioned off in the bankruptcy proceedings.
The data is backed up in many ways (including to some extent in a fully-distributed fashion, though I'm not in the know enough to give you an idea of how vast it is: https://dweb.archive.org/ ), and a non-profit can't be forced into bankruptcy in the way you're implying (which is another reason it's so important the IA is non-profit), so the physical assets are safe:
https://www.abi.org/member-resources/blog/a-non-profit-entit...
Your link is about substantive consolidation, a process where the bankruptcy court combines multiple related legal entities into one. This can benefit the creditors of Entity A, since it may frustrate the debtor's attempt to shield assets by placing them in a related Entity B. Your link correctly notes that a nonprofit can't be forced into bankruptcy, and thus can't be forced into substantive consolidation. So if the IA used the two-entity strategy, then your link implies it would be quite effective--worst case, the publishers take all the assets of the library entity, and they have no way to touch the Wayback entity.
If both the Wayback Machine and the library are under the same entity, then that single entity still can't be forced into bankruptcy, because it's a nonprofit. But the creditor (i.e., the publishers with their hypothetical judgment) can still just collect against the single nonprofit entity, bankruptcy or no bankruptcy. If the judgment is for more than the entity's assets then the creditor gets everything.
The point of bankruptcy is to consolidate multiple creditors' claims into a single case, to be resolved more fairly, while destroying less value, etc. It seems like you might be thinking that no bankruptcy means no ability for the creditors to collect? But that's exactly backwards--bankruptcy is primarily a set of protections for the debtor (like the "automatic stay", which stops creditors from trying to collect outside the bankruptcy), with a few smaller benefits for the creditor (like that substantive consolidation) thrown in.
ETA: And I see that the IA describes itself as "recognized as a library by the government", but I'm not aware of any specific legal benefit from that. Regardless, if that's somehow important then they could leave the books in the library entity and split out the Wayback, instead of splitting out the library.
I mean... a little blame goes to the folks that made the massive over-reach beyond any plausible deniability or defense, right? Maybe most of the blame? All of the blame?
IA lofted the jolly roger and thought fear of bad press would protect them, and it's the publisher's fault for not saying, "never mind, you guys destroy the entire economic foundation of the publishing industry, no worries"?
I'm rarely in the anti-pirate camp, but defending IA in this context is pretty extreme.
Copyright isn’t an inalienable right. It was established for the public good, and up for renegotiation at any time. Now is one of those times.
No matter what you consider to be the morally correct outcome here, this seems to have been a very risky way to go about things.
This is a tired argument. Please prove authors experienced lost sales due to the emergency library IA offered.
>"I'm an author" or "Think of the publishers!" is no excuse for supporting unjust laws.
Authors want to get paid, this stops them from getting paid...
What is sad is most of the people that use that excuse do not believe copyright laws are draconian enough, they want STRONGER copyright laws for publishers, they want it to not only be civil but criminal, they want to put people in jail in a cage if you happen to share your favorite song with a friend.
In short, copyright maximalists are insane
You realize this undermines the ability of our society to produce the actual written works that we're arguing so damn valuable that we can't abide locking them behind a paywall?
So why is the current copyright system the exact correct system for getting people paid to write, where any stronger or weaker would be bad? I can think of at least a few other possible systems that would get people paid to write as well - maybe an entirely different set of people, so some things would get written that aren’t today and some things that would get written today aren’t under that system. How can we evidence that our current system works best?
Civil disobedience is a form of peaceful protest.
> You realize this undermines the ability of our society to produce the actual written works
Creators aren't going to stop. They'll find a way. The solution is to somehow get paid for the act of creating rather than the finished work. Patronage and crowdfunding could be the answer.
I blame the politicians that do nothing to change the rules of the game in the first place, and the people that elect them.
My guess is that this is exactly what they did and specifically, that they're cooperating with a number of currently-closed libraries so that they can still claim to have one book kept in storage for each book that's lent out, when accounting for those libraries' physical holdings. They just used the word "unlimited" as a convenient shortcut in describing their new policy, much like ISP's and their "unlimited but not really" data caps.
https://www.nytimes.com/2020/03/30/books/internet-archive-em...
> Public libraries get licenses from publishers for the e-books they lend, and publishers receive payments, according to the terms that are set. Internet Archive doesn’t get licenses from publishers but instead relies on donated or purchased books or copies it acquires through collaborations with physical libraries. The books are then scanned and made available for one borrower at a time, for 14 days. With that restriction removed, the archive is now operating more or less like a free digital book site.
I don't even get why IA did this, or why they threatened the project itself with this side project. Many people gave money to the project for the internet archiving, not some sort of robinhood book distribution system. Whoever did this should have created a completely separate side project instead of effectively bankrupting the meaningful, justifiable project in the process.
It makes sense that they would do this if they were actively trying to lure the pro-copyright camp (Authors' Guild and publishers) into a difficult-to-defend and highly unpopular position. I agree that it seems a bit unrealistic, but surely the IA had to know that a lawsuit would be filed given their public claims wrt. the NEL.
That position being that the IA shouldn't do what the law says you aren't allowed to do? That doesn't seem very difficult to defend at all, and it's going to be unpopular with the kind of person who thinks copyright shouldn't exist but probably less so with the people who created those works if they aren't getting paid as they should be.
I'm a little wary of saying much here because copyright disputes often seem to end up having relevant details that were omitted from some reporting on them. But if the IA really is making and distributing an unlimited number of copies of a protected work, isn't that exactly the act that copyright was designed to prohibit?
But does it say that? Their status as an officially-recognized library means they're operating by different rules than most private citizens. Libraries are (sometimes) allowed to make copies of copyrighted works without asking anyone's permission. It's entirely possible that the limitations they imposed on digital lending prior to this event were merely a expression of courtesy—or excess caution—and not an actual legal obligation.
Libraries can make copies for preservation purposes, but that's not the same thing as making those copies generally available. The latter is not something that they're permitted to do outside of special circumstances. So I think your argument is going too far - there are clear reasons why the Open Library's lending works the way it does.
Section 108(a) allows the library to make a single copy of a work and distribute it to the public.
Section 108(b) allows up to three copies, for preservation or security or for deposit in another library (but not distributed directly to the public).
Section 108(c) allows up to three copies to replace deteriorating or obsolete media, but does not allow distribution outside the premises.
Section 108(d) applies only to excerpts.
Section 108(e) allows apparently unlimited copies to be made for "private study, scholarship, or research"—this is the default assumption, so the library would need to know that this was not the case to be in violation—provided that the work "cannot be obtained at a fair price". However, the copy must become the property of the user (i.e. not a loan).
Section 108(h) allows more widespread copying and distribution of abandonware within the last 20 years of their copyright period.
Ironically, section 108(e) would probably offer the best protection, but only if they were actually handing out permanent copies and not limited-time loans.
The IA is a 501(c)(3) organization but they're not a "library" in that filing (which may not even be a specific option).
Classification (NTEE) Human Service Organizations - Multipurpose (Human Services — Multipurpose and Other)
Nonprofit Tax Code Designation: 501(c)(3) Defined as: Organizations for any of the following purposes: religious, educational, charitable, scientific, literary, testing for public safety, fostering national or international amateur sports competition (as long as it doesn’t provide athletic facilities or equipment), or the prevention of cruelty to children or animals.
But, sure, they look like a library so they're free to call themselves one. But that doesn't actually confer a lot of special privileges.
The fact that you paid one entity for a service (which they are not providing,) does not entitle you to collect it from another entity.
I also know of a large number of libraries (e.g., NYPL) that suspended their requirement that people verify their address, so realistically, anyone anywhere could register an ebook-only library card and avail themselves.
Luckily absolutely nothing was stolen.
Just because someone wasn't deprived of the thing you now have doesn't mean they weren't deprived of something of value, and pretending otherwise is a juvenile see-no-evil defense.
The people downloading the books, music, movies, etc are getting something that they want, that normally costs money, for free.
Come up with a new word if it isn't theft. But it looks and acts like theft.
And luckily I did not say that anywhere.
It's no wonder copyright reform has completely stalled out over the last 20 years when all discussions devolve into the same repeated canards.
Publishers aren't really on authors' sides.
This was a complete overreach by IA and they are paying the price. If you lend out digital versions all of which are backed by a physical copy, it is hard to argue that the publisher is being harmed. However, if you loan out unlimited digital versions of a single copy, that is much harder to justify, and that provided the the opening the publishers needed for a lawsuit.
I love what the IA has done, but i think they unnecessarily stepped into a minefield for not that much benefit. Even Google with all its resources has not directly challenged the publishers.