The EFF is on the right side of the law the same way a lawyer for a criminal is. The lawyer (eff) is fulfilling a necessary function of the judicial system even when the party they are representing is in the wrong.

The EFF has a keen interest in this case because the publishers will be doubt use this case to push for copyright maximalist interpretations of the law, and letting those interpretations become case law unchallenged is bad for society.

Edit: At a glance the vid angel lawsuit you quote is about circumventing DRM, something that is not relevant to this case since the physical books they scan have no DRM.

That said, while not in this case (I think), copyright infringement is in many for profit contexts criminal under the laws of the United States.

By this definition, no lawyer can be on the wrong side - you know what is meant by the phrase ‘wrong side of the law’ stop it with the mental gymnastics.

Lawyers are on the wrong side of the law when they break it themselves (see, e.g., Avenatti), but not when they represent people on the wrong side of the law. The latter is necessary for the common law court system to work at all.

In America at least, the defendant is presumed innocent until proven guilty. So the assumption should be that the defendant is on the right side of the law. It's the prosecutor or complainant's job to prove the defendant is in fact on the wrong side of the law.

To call a defendant 'the criminal' (and saying the defendant is in the wrong) is putting the cart before the horse.

That is exactly what you are doing by picking a bone with the phrase wrong side of the law

There is a reason why falsley accusing someone of a crime is libel in and of itself and is actionable under the law regardless of damages, I don't think this quite reaches that standard, but it is damn close.

https://www.merriam-webster.com/dictionary/on%20the%20wrong%...

Exercising their first amendment rights to support an organization that broke the law is unequivocally legal, a healthy part of society, and not on the wrong side of the law.

The lawyer is still on the right side of the law after the plea

Is this true for civil cases? I presume no one is being charged with a crime here...

Yes. The publishers are saying 'the Internet Archive violated my rights and has caused monetary damages. They owe us for those damages.' It's up to the publishers to provide that the Internet Archive violated those rights.

Now civil trials and criminal trials have different standards for evidence and determining guilt. In criminal trials, the prosecution has to prove beyond a reasonable doubt that someone committed a criminal offense.

In civil cases, the complainant (plaintiff) just has to prove via a 'preponderance of the evidence' that their rights were violated. Meaning, it's more likely than not their rights were violated.

You're not arguing about whether the defendant is on the wrong side of the law.

The lawsuit is going after both NEL and CDL. The defense is trying to save CDL.

I don't think VidAngel is necessarily relevant here because VidAngel was making derivative works.

[1] If someone checked out a physical copy, did they reduce the number of digital copies that could be out until the physical copy was returned?

And also because they were circumventing DRM, which is what the Wikipedia article would have you believe the case was about (I haven't looked closer than that).

In the case of VidAngel yes - you would buy a copy from VidAngel, stream it, then return it for the same amount sans a dollar fee. Vidangel would often run out of copies of popular shows to stream and they would alert you when that was the case and not let you stream it.

Without this representation, the publishers could almost certainly bankrupt the IA, even if they are given the minimum infringement fine of $200/ea.

Make no mistake here, the IA _will_ lose this case and the publishers _will_ bankrupt the IA. There are few things that I can say are almost certainly a foregone conclusion, and the IA losing this case is one of them.

Digital lending and the National Emergency Library would never have appealed to me. It doesn't reduce sales of books, because those who can buy, will. I'd much rather support the author and have a physical artifact in my hands than an inconvenient digital scan. But for anyone not in that position, the NEL could be a lifesaver to ride out the pandemic.

IA made the right call morally and ethically. It's only the parasites of society who would tear them down for helping disadvantaged people out during an unprecedented planet-wide crisis, because their actions help the disadvantaged without harming the market potential of authors.

They do that and they will find themselves with a Napster/sci-hub problem.

If it weren't so destructive, the chronic inability of legacy industries to learn would be funny.

The Internet Archive needs to be reasonable, as they operate within US jurisdiction. Other projects need not (LibGen, SciHub, etc). If operating outside of the US (and other countries that are a party to the Berne Convention) is required due to publishers continuing to embrace overly restrictive copyright law, that is what will be done by those interested in this sort of work.

[1] https://en.wikipedia.org/wiki/Library_Genesis ("As of 28 July 2019, Library Genesis claims to have more than 2.4 million non-fiction books, 80 million science magazine articles, 2 million comics files, 2.2 million fiction books, and 0.4 million magazine issues.")

contrast with IA's OpenLibrary corpus (with Controlled Lending):

https://en.wikipedia.org/wiki/Open_Library ("In total, the Open Library offers over 1.4 million books for digital lending.")

That said, the best avenue would seem to be a PR campaign with a call for a boycott and public shaming of the publishers (Hachette, Penguin Random House, John Wiley & Sons, and HarperCollins) that are putting their profit ahead of public access to the books.

In fact, it seems pretty surprising that the publishers would risk such an hit to their reputation given that the Internet Archive probably doesn't have much money to give them as compensation anyway.

They do not care about the compensation. They are aware that they will probably see effectively no dollar bills here. However, the publishers are interested in shutting down a distribution method they see as unlawful/theft, and most importantly, they want to publicly destroy any company who engages in it to deter future offenders.

The car analogy does not apply, primarily because cars are fungible. Books are not fungible, unless they are printings of the same book. Cultural ideas are not fungible.

I don't understand how people have such certainty about this.

You have a situation where there are libraries who have bought millions of books from authors/publishers. The authors have been paid. Then, there is a pandemic and the libraries are closed, so the public has lost access to all the books they've paid for.

Giving them back access to the books they've paid for is obviously wrong? They're definitely going to lose?

It would be one thing if they had lent out more books than existed in all of the closed libraries, but is there any evidence that this is the case? That seems quite implausible, considering the massive number of books that have been paid for in all of those libraries.

However, in retrospect, I suspect the case might hinge on someone actually compiling that data. Did they, at any point, lend more copies of any particular title than existed at the time within all the shuttered libraries combined?

It is a lifetime ago, but when I still went to the library in my country, about 27 years ago for the last time, there was already a system which had all books of all libaries at every library, where you could look up which copy of what book was in which library, how many of those author’s books all libraries had together etc. This was 27 years (and longer) ago; you are saying that, in 2020, I cannot press one button and get this info in all, at least, western countries?

That is pretty depressing if so.

Edit; come to think of it, it must be longer ago as I tried to copy (the UI and functionality without networking of) that system for my own books at home on my MSX; I stopped using that system when I got an Amiga more than 30 years ago.

That's a weak argument. Buses were parked but I couldn't just go and take one from the yard for a journey despite having 'paid' for it from public funds.

All copyrights expire and all works have fair use clauses. It's just a matter of when and what country is issuing the copyright.

You can give away free digital books. Project Gutenburg has been doing it for years. Even if the author's family doesn't like it. It's not stealing either. It's simply waiting for the copyright to expire.

In this case they are using borrowing like a libruary as a defensive with covid hardship thrown in to justify removing a limit on the amount of books they can lend.

Are they? We can armchair critique all we want, but I find it doubtful that an organization with so much litigation and advocacy experience under their belt would naively throw away a ton of money on a losing battle.

I can come up with all sorts of reasons why the EFF might step in.

1. The IA is valuable enough that even a small increase in its chances of survival is worth spending a lot of money on

2. They don't think they can win, but they think they can mitigate the IA's losses

3. They think they can win in the media

4. They want to steer the legal arguments of IA in such a way that "controlled digital lending" has the best chance of surviving the lawsuit

I won, but I was in Spain, not the US.

Sure.

But this is totally different. IA is the one doing both the copying and the distribution.

The Internet Archive's best bet is to settle and apologize very publicly.

One should never apologize for civil disobedience against unjust laws.

It's a sad situation really: that the best solution we must adhere to is denying free resources to the masses. Not really human.

The vast majority of the civilized world agrees it is good to protect ‘art’ (from code to books) to keep it sustainable. Just because it can be infinitely duplicated and shared ‘freely’ does not mean it is sustainable to do so. If there is no money in art, less art will be made and most agree that this is not desirable.

> Just because it can be infinitely duplicated and shared ‘freely’ does not mean it is sustainable to do so. If there is no money in art, less art will be made and most agree that this is not desirable.

I don't believe the evidence shows this (but is a topic for another thread, "why do people create?"). People who create to create will still do so (IMHO, based on the history of humans), even if it is what it is for many people: a hobby funded by other work, the state, or private patrons through means other than controlled access to content.

That said, please explain[] just how* an author "can still make a living" without some form of copy-protection. And please refrain from the "signing tours", "selling merch", "live readings" nonsense. Writers in particular (but the visual arts, too) simply don't, on the whole, have the skills, inclination or desire to engage in much of that. The entire reason for engaging with the conventional publishing industry is to relieve an author of the tedious burden of sourcing artwork, arranging print and distribution, marketing and sales, leaving them free to write more stories -- what they do best. Self-pub can work for some writers, but they're the ones willing to sacrifice precious writing-time time on all those peripheral activities.

Bear in mind that the overwhelming majority of writers are writing in snatched hours in the early mornings/evening, over and above a "day job" to pay the rent and put food on the table. There's not a lot of time left over in a day to also become an editor/marketer/project manager.

eta [*]: and I genuinely mean: Just HOW should public policy look in order to provide some form of artistic protection for creators? It's easy to sit around and say "copyright is broken" (and I'd largely agree!) It's less easy to say what it might/ought become.

See: the entire history of books before computers.

See: Doctorow's Little Brother, which was distributed freely and still sold so well it went on the NYT's best seller list.

eta []: and I genuinely mean: Just HOW should public policy look in order to provide some form of artistic protection for creators? It's easy to sit around and say "copyright is broken" (and I'd largely agree!) It's less easy to say what it might/ought become.

The law shouldn't guarantee you a business model under actual capitalism or better systems. "We're going to enforce with a military your right to a business model" is an inherently silly proposal. It makes more sense to guarantee everyone has enough to live off of, which is something the state is already capable of, and something the best capitalist and socialist economists are advocates of.

Beyond that, if you're looking for a less-radical proposal: shorten the copyright period. The NEL didn't have anything that was five years old or younger on it. Current copyright terms are insane and against the common good in every sense of the word.