For this reason I also think use of the "uncontrolled" term is unfair, disingenuous, and even does a disservice to the public at large. It further propagates the myth that loosening already-strict controls is the same as having no controls at all.

It 100% wasn’t. IA after the fact tried to justify their uncontrolled lending by saying they were lending out copies that were owned by the shut down libraries all over the country.

First, nobody gave them ownership of those copies.

Second, most libraries already have legal digital lending systems and so their digital stocks were going out too (which also negates IAs after the fact justification).

Let's say that for book X, IA held-in-reserve 2 copies. And at the peak of the "Emergency Library", they never loaned out more than 10 total copies.

I'm sure publishers would allege: "You created 8 net copies! Pay us!"

But then 500 physical libraries who are sympathetic to the IA show up, and say: "Amongst us, we had 1000 idle copies of X trapped on our shelves. We wish we could have done the same sort of 1-for-1 lending IA did, to help the nation in its hour of need, but we weren't set up for it, and couldn't throw it together with limited resources during mandatory-closure orders."

"So, as soon as we heard about IA's program, we endorsed it & recommended it to our physical patrons. As far as we're concerned, we delegated the right to loan our copies to IA, including retroactively."

"No net copies of X were created. Rather, if there had been no pandemic emergency forced closure of physical libraries, our copies of X would've been loaned out for a total of 40,000 library-patron-days. None of that happened, but IA's emergency lending managed to reclaim, according to their exact usage numbers, 5,277 of those days-of-use for students, scholars, and citizens. Less than 15% of the pandemic-destroyed-value."

"Now, publishers are trying to profit off the pandemic, by not only having collected their payments for all those idled books, but collecting a windfall of extra purchases, and/or damages, from a non-profit library that was just trying to offset massive pandemic losses in a technologically efficient way."

Then who are the 130 partner libraries they are talking about?

https://blog.archive.org/2020/07/22/libraries-have-been-brin...

Over 130 libraries endorsed lending books from our collections, and we used Controlled Digital Lending technology to do it in a controlled, respectful way. We lent books that we own—at the Internet Archive and also the other endorsing libraries. These books were purchased and we knew they were not circulating physically.

Also being endorsed by a library does not mean giving ownership of their physical copies.

That isn’t what happened - in your metaphor: IA started lending friends’ copies without asking.

IA only after the fact got endorsements from libraries and they certainly didn’t have agreements in place giving them any inventory.

That's relevant if the friends have grievances, but not so much the publishers.

You think it is okay to lend out other peoples property? You need a serious reality check if so.

What you're alleging they did is equivalent to someone going to their friend's house and taking something of theirs to lend to someone else without asking them. I agree that if that's an accurate assessment of what actually happened, it's a lot less defensible.

I have no idea what limitations, if any, are put on the lending of digital goods by law or by the specific terms of IA, or the terms the other libraries in question offer.

Sure, but at no point does the producer of a physical object that is being lent get a say-so in the agreement between my friend and me, or the contract between a lending business and me.

In the car rental metaphor, it'd be like Ford suing Hertz for lending me a Focus that Ford already sold to Hertz.

If I borrow a neighbours defibrillator, without asking, to save their child it would be insane for the manufacturer of the defibrillator to sue me for not buying my own defibrillator. While in theory the neighbour could object to me borrowing the defibrillator without permission, that does not appear to be what happened. Based on IA's statements it appears that libraries are saying after the fact that they were happy for their copies of books to be loaned by IA.

I would assume from their actions these publishers hoped to make a windfall on book sales when people were no longer able to access libraries and they saw IA's actions as attacking this potential profit. I can't think of any other reason why they would peruse their current course of action.

And then it turned out the friends were fine with it anyway.

https://help.archive.org/hc/en-us/articles/360016554912-Borr...

Most libraries' digital lending is completely separate from their physical lending or from the Internet Archive's scanned book program. Those digital lending systems have no relevance to this case.

IIUC libraries buy separate digital copies for digital lending. IA's justification is that they were providing a substitute for the physical copies which are now sitting unusable. It might be legally suspect but it's not an illogical position.

The publishers are saying that, regardless of the form of media, the IA engaged in uncontrolled digital lending, meaning that they lent out more digital copies of books than they actually owned, digitally or physically (or that were lent to them by their so-called partner libraries either digitally or physically). Because they did not actually own or possess the copies underlying these loans, they were required by copyright law (in the US and the EU) to either acquire more physical copies or to license more digital copies.

* lending in specified forms, which require illegal activity to make further copies, and

* lending for a specified time, which requires illegal activity to extend.

Welcome to NewSpeak, where "uncontrolled" means fairly tightly controlled.

Uncontrolled does not have to mean zero restraints. The word never meant that. Especially in a well defined context where controlled has precise meaning (and that meaning is not “every constraint”). Neither word need mean the absolute extreme.

This is not NewSpeak.

[0] https://controlleddigitallending.org/

In this way, "uncontrolled" is not a fair term; rather it seems to be used for a specific, possibly unfair purpose by a specific side in this argument. The fact is, IA had specific, qualitatively-controlling controls on their lending, and anyone who checked out one of the books could see exactly what that meant. Nuances are important here.

> Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

So what they are doing definitely is not "controlled digital lending", by their own definition. At best, it's semi-controlled, but the real essence of the "control" is the number of copies, so "uncontrolled" seems fair.

If they do agree with you that the paragraph you pasted is their end-to-end definition of "controlled," that means they haven't yet incorporated these other controls into their definition, and they definitely still can and should.

There's no singular time limit or definite requirement to define such things in this case, and IA have engaged lots of controls, from HTTPS and authentication on up to content-level media and time controls.

Sure, they can change their position. But A) I can't go off of what is potentially in some stranger's head and B) they would be redefining the term.

[0] https://controlleddigitallending.org/whitepaper

edit: I hear where you are coming from though. I agree it's got some "control", so you don't like the term "uncontrolled". But I think we probably agree that it isn't "controlled digital lending" even if it is "controlled" to some extent.

Also, why does it matter if 130 libraries said they were okay with the CDL program, since that's not at issue here?

Library CDL programs were still online and functioning the entire time. Only the physical facilities were closed.

As far as I know, most public libraries' electronic lending programs are using something similar to Rakuten OverDrive and are limited to books published in electronic editions and then leased by the library systems. Do you know of any libraries other than the Internet Archive that make scanned copies of physical books available?

If you find yourself in the position of needing a copy of Charles Ross' biography Edward IV (https://www.google.com/books/edition/_/m8Ojo6VI8KUC?hl=en), as far as I know you're pretty much limited to the Internet Archive (https://archive.org/details/edwardiv00ross) unless you have an open research library handy. But you'd best make it quick, because the publishers want those copies deleted.

You could now try, if the DRM allows it, and the Internet Archive only temporarily during the lockdowns, through the DRM, allowed more than one person to read the book. That is, you could have had it for 14 days, but now you just couldn't renew it anymore unless nobody reads it.

I guess the correct term to use would be something along the lines of "lending that doesn't follow the legal definition of controlled lending" or something along those lines, but that is a somewhat unwieldy phrase to use as a part of most posts.

[1]: https://controlleddigitallending.org/

Uncontrolled does not mean zero constraints whatsoever.

Especially when used in opposition to the precisely defined phrase Controlled Digital Lending, where controlled is a well defined set of constraints.

No longer strictly doing something does not imply it's opposite.

For example, the opposite of help is harm, and no longer helping something does not imply you are harming them, does it?

These terms are the extremes of a spectrum. Noting that you are no longer on one extreme of a spectrum does not immediately imply you are now at the other extreme.

Control of a variable—in this case the number of copies lent—is strictly binary. There is no neutral state in which the variable can be neither controlled nor uncontrolled.

This is the crux of the point. Control over a variable is not what's in question. Control over many variables is, some of which were controlled and some weren't. In that respect, if you go from a controlled process where the variables in question are all controlled to one in which some of them are, it is not now "uncontrolled", it's partially controlled, it's also partially uncontrolled. There is less control, but it doesn't make sense to call it uncontrolled where there is still control over some variables retained, and we're still using the same context which applies to the same set of variables.

Arguing otherwise is a bit like saying discrete mathematics isn’t discrete because we can represent the number one by a line of arbitrary length. That’s strictly true but has nothing at all to do with the actual definition of discrete mathematics.

No, CDL very clearly outlines 6 different criteria by which it should work.[1] One of those criteria is:

limit the total number of copies in any format in circulation at any time to the number of physical copies the library lawfully owns (maintain an “owned to loaned” ratio);

It does not state 1:1, just that some ratio is maintained, and even if that one criteria were to be ignored, there are 5 other criteria just as important to the process, such as ensuring that each digital copy goes to a single person, and that the digital copy prevents additional copying, and that it's limited by time.

Whether they qualify for the moniker of CDL when not following one of those six criteria is debatable, but notably it's not what we're debating here, which is whether it's accurate to call what they did "uncontrolled" because it was called controlled previously (even if that's a name library marketing made up for this). Given all the other controls in place (likely every other criteria listed for CDL), I would say it definitely was not "uncontrolled".

1: https://controlleddigitallending.org/whitepaper

You've not made any counter claim here. You've left me guessing which criteria you mean to include some type of control, so I'll go through them all.

ensure that original works are acquired lawfully; This isn't really about controlling anyone but themselves and is also part of what did not appear to happen in the NEL.

lend each digital version only to a single user at a time just as a physical copy would be loaned; This isn't meaningfully different than maintaining the ratio.

limit the time period for each lend to one that is analogous to physical lending; and In the absence of maintaining the ratio, the length of duration is meaningless, since the same person can just check out the book again.

use digital rights management to prevent wholesale copying and redistribution. Again, without maintaining the ratio, what control does this achieve?

>> limit the total number of copies in any format in circulation at any time to the number of physical copies the library lawfully owns (maintain an “owned to loaned” ratio); > It does not state 1:1, just that some ratio is maintained,

This is a difference without distinction. Sure, they could be loaned at a ratio less than 1, but they cannot, by definition, loan at a ratio greater than one.

> Whether they qualify for the moniker of CDL when not following one of those six criteria is debatable, but notably it's not what we're debating here, which is whether it's accurate to call what they did "uncontrolled" because it was called controlled previously

These are not separate debates. There's context behind the use of the term 'controlled'.

That only makes sense if you assume the ratio is infinite if above zero. This matters in any case where the ratio is not infinite.

> Again, without maintaining the ratio, what control does this achieve?

Combined with limiting the time period the lending is allowed, which you conveniently left out, it's controls the scope entirely. Even if you allow unlimited copied, you can change that and if the copies are all limited to one week and are cannot be copied by users, in a week you can have effectively reduced number of items lent to zero if you want. Without these constraints you can't. They are integral to the whole idea of CDL.

> This is a difference without distinction. Sure, they could be loaned at a ratio less than 1, but they cannot, by definition, loan at a ratio greater than one.

Sure they can. Their justification for why they believe it's legal does not allow a ratio of above one, but almost all the other criteria still applies when it is above one, and specifically, what the IA did was lend at a ratio above one. Your other points about how stuff doesn't matter if the ratio is one are specifically avoiding this point.

My point is simple. CDL would not work from a legal perspective if there was not some way to limit the time in which the item was lent and prevent copying just as it would not work if there's not a physical copy backing the lending. To say it's uncontrolled because only one aspect of all those parts that make the whole makes no sense.

That's akin to having a dog restrained with a leash, harness and muzzle, and after the muzzle is removed, saying the god is unrestrained. The dog is restrained still, just less so than before. The IA lent books in a controlled manner (an account is required, there was DRM, there were limits on length), it was just less controlled than before, because they did not back each digital copy with a physical one.

That there were clearly some controls in place means that it's erroneous to call it uncontrolled.

Feel free to respond and refute as you see fit, I'll read and consider what you say, but I won't respond on this particular thread anymore. I think we've spend enough time on this that it's unlikely to tread fruitful new ground that will change either of our minds, and we could probably go back and forth on minutia for quite a while.

"IA’s self-serving assertion and promotion of “Controlled Digital Lending” as both an actual legal doctrine and a justification for its infringement affronts the most basic realities of the law and the markets it propels. As a matter of markets, IA’s one-to-one conflation of print and ebooks is fundamentally flawed. Digital books are inherently different from physical books. They can fly around the world in a second; they do not degrade over time as physical books do; and they require devices to read them."

https://publishers.org/wp-content/uploads/2020/06/Filed-Comp...

It's worth pointing out that libraries will rebind a physical book if it starts falling apart. It's weird to argue that publishers' rights should last the full term of copyright, but readers' rights only last until a book wears out.

This is similar to a 'digital' copy and a 'CD' copy. I'm just saying, the current 'movie/film' money corps will push for 1 side of this argument.

A reader's right to a physical copy only lasts as long as the physical copy. If they want to extend the term of that right, they should take better care of their physical copy.

So, at least in some context this is false- the reader's right is to the information contained within the physical copy, not just the physical copy itself.

However, it's simply not worth it for a copyright owner to go after someone making a backup copy for personal use since the statutory damages are only $750 (per act of infringement), and don't include legal fees. (Contrast to the infamous Napster/Limewire cases: each peer connection in P2P sharing constitutes a separate act of infringement if you share to them, which is what made it potentially lucrative for some law firms to attempt to shakedown users of those programs.)

This is an intended effect of setting the statutory amount at $750: it's too low to make it economical for copyright owners to go after isolated cases without market effect, but at the same time quickly makes it very expensive for infringers to commit multiple acts of infringement.

This isn't exactly the same as personal use but it's pretty relevant: https://arstechnica.com/tech-policy/2015/10/appeals-court-ru...

> "While Google makes an unauthorized digital copy of the entire book, it does not reveal that digital copy to the public," the opinion states.

Also, Pamela Samuelson, a professor at University of California at Berkeley has stated: "Personal-use copying should be deemed to be fair, unless there is a demonstrable showing of harm to the market for the copyright at work"

While not "fair use" the library of congress which is empowered to make exemptions to DMCA has made such exemptions for Personal backup

Further the Copyright law only grants the Creator 5 Rights, these are around the public dissemination of the work, not the private use of the work. it is not a total control over the work like authoritarian copyright maximalists like yourself believe it to be

The Supreme Court has held in many contexts that non-distributed reproduction falls outside the control of copyright, so I can make as many PERSONAL copies of a work as I desire provided I never sell, gift, or distribute them in any way

I would love for you do show me in copyright law where it grants the right to control personal reproduction, as the copyright law is very clear about what rights it grants, it is all about distribution and performance

https://www.law.cornell.edu/uscode/text/17/106

Now if the courts decide that applying copyright, which is as old as the printing press, to digital media, which are neither printed nor pressed, makes no sense, and they declare all forms of Digital Restrictions Management to be illegal, and it all happens because of this lawsuit, specifically because of this slip of the tongue, which only happened because the Internet Archive intentionally overstepped some legal boundaries at an opportune time, I'd say: Well played, Internet Archive.

Not going to happen, though. Courts don't rule against established companies, ever.

> copyright, which is as old as the printing press

The idea of copyright was not fabricated until about 200 years after the the printing press was invented, and then it was a tool for censorship. https://en.wikipedia.org/wiki/Copyright#Background

> it was a tool for censorship

When did that change? Did it ever?

Yes, it is. Censorship is obscene, no matter how well-intentioned the perpetrators.

> Copyright is censorship in the same way that making it illegal for someone else to say they are you (identity theft) is censorship.

It isn't illegal for someone else to say that they are you—per se. Actors do that sort of thing all the time. It only becomes illegal if they do so deceptively with the intent of achieving some sort of financial or personal gain, i.e. to commit fraud. The illegal part is the attempt to obtain goods or services under false pretenses.

Copyright is completely different. It penalizes the unauthorized distribution of factual information—even if these facts are just the arrangement of words in a work of fiction, or a series of numbers describing a certain sound wave. There is no deception involved in copyright infringement, no goods or services obtained under false pretenses, just the communication of information through channels which certain parties would prefer to suppress.

However, I think there has to be a reasonable way to implement copyright so that artists can get paid for their creations in a reliable way.

A third party shouldn't be able to host/index a bunch of someone else's IP, sell ads, and make bank at the expense of writers, musicians, etc.

On the other hand, Michael Jackson is dead. Why is his music still copyrighted? The material has earned zillions of dollars already. The ownership of those rights by corporate randos is ridiculous. Copyright holders have, in my lifetime, behaved in a ridiculous way--even abusively towards original artists via DMCA take downs. But the notion of copyright is still important.

All that said, platforms that pay artists pennies while making billions on the activity they attract are probably a bigger threat to art these day. That also needs to be dealt with.

Clearly you've never actually met anyone who was anti-copyright / pro-freedom of information. To begin with, they're not going to be looking for "a reasonable way to implement copyright" or saying things like "the notion of copyright is still important". Kind of goes against the whole anti-copyright mentality.

> A third party shouldn't be able to host/index a bunch of someone else's IP, sell ads, and make bank at the expense of writers, musicians, etc.

There is no "at the expense of…". The third party is performing hosting and indexing services and getting paid for that work. They benefit, the users of the site benefit, no one else loses anything. In the absence of copyright anyone else could do the same, so it's naturally going to be a low-margin business.

If we want artists to get paid in a reliable way, without wrecking the rest of society in the process, we need to look beyond copyright, to patronage, crowdfunding, sponsorship, open collaboration, and other models. The presence of copyright doesn't guarantee that artists get paid. It does ensure that we're actively crippling our technology, erecting barriers between people, undermining the art itself by making it all about money, encouraging contempt for the law (not entirely a bad thing IMHO when the law is unjust), and creating a parasitic copyright industry which leeches off of both the public in general and artists in particular, in the end serving no one but itself.

As I said, I also think terms of copyright should be deeply constrained and nontransferable upon death.

But like, megaupload? Why should such a business model be allowed to exist? 100% parasitic.

This is drastically different from what we know today.

Patronage? Who if not the people acquiring the material? Crowd funding? Won’t that be in competition with the pirated commodity? Sponsorship, like ads in the content?

I’d rather pay an artist for content for a reasonable price and duration, while shutting down excessive suits.

Get off your high horse. It’s a complicated issue. The whole web runs on sponsorship and ads and it sucks horribly. There are balanced approaches worth considering. Content has value.

>> Gosh, I'm pretty much as anti-copyright/pro-freedom of information as anyone you would ever meet.

You aren't even close. Stopping just short of copyright maximalism doesn't make you anti-copyright. It makes you slightly more reasonable, but you're still on the opposite side of this particular debate.

> But like, megaupload? Why should such a business model be allowed to exist? 100% parasitic.

What's so parasitic about a file hosting service? They get paid a premium right now because they're taking on a bunch of legal risk on behalf of their users. You can blame any surplus profits squarely on copyright law itself.

> Patronage? Who if not the people acquiring the material?

The patrons normally would be the ones acquiring the original copies, yes. At that point it would be up to them to decide what to do with those copies. Patrons would normally also receive credit for funding the production of the work. This model works well in situations where there is social capital (or simply a sense of self-worth) linked to being known as a "patron of the arts".

> Crowd funding? Won’t that be in competition with the pirated commodity?

You're thinking of pre-sales. Crowdfunding is more akin to patronage, just with a broader audience. Backers might get some perks, such as public credit or merchandise, but there is no guarantee of exclusivity. The resulting work may or may not be made available directly to the public, though the distributed nature of crowdfunding pretty much guarantees that at least one backer would "defect" and make their copy available shortly after the initial release.

> Sponsorship, like ads in the content?

Product placement is one form of sponsorship. It can be done well, or poorly. Quite a bit of quality content has been produced for free distribution through unobtrusive sponsorship arrangements. Sometimes content that people are interested in for its own sake also incidentally happens to benefit someone, so they're willing to pay for its production even without any direct promotion.

Megaupload employees and owners uploaded pirated content, and profited hugely. Not small margins—they made millions.

I’m against YouTubes, Spotifys, and even megauploads screwing content creators. Tech doesn’t have the right to assume ownership of the world via content platforms.

All content production is struggling under the glut of technological wealth extraction via platforms. A good copyright implementation would help avoid this. It’s nothing like what we have, but the concept of copyright is not the same as the abusive system we know.

I feel like you are railing against copyright the way conservatives rail against socialism. Doing so mischaracterizes the sensible arguments that are classified as such.

The goal should be to promote diverse content creation by allowing creators (Not their platforms or corporate ownership) to be compensated, and to simultaneously allow for cultural exchange with concepts like free use and limited copyright durations, and by protecting/promoting library lending. Such things are possible, and I think optimal.

> Information should be free to share and copy, but not at a profit if it infringes on the owner of the IP.

That sounds like what the Open Source Definition would classify as discrimination based on field of endeavour. Terms like that are way more trouble than they're worth. If anyone can share and copy the content at cost, the only way to earn a profit is to provide some value-added service. Which means you're not profiting from the content, but rather from the service you've added on top. I'm not sure why you would have an issue with that.

> Megaupload employees and owners uploaded pirated content, and profited hugely. Not small margins—they made millions.

That's only because competition for hosting and indexing services was severely limited by copyright. I don't see the relevance to the scenario you're describing where there are no restrictions on (non-profit) sharing or copying. Their margins would be basically zero under those circumstances, or at least no more than any other hosting service. Any profit they did make would be due entirely to their own efforts.

The inherent differences the publishers list -- the speed at which ebooks can be lent, the fact that they don't physically degrade, and that they must be read on a device -- are real, but they don't strike me as relevant to the actual legal principle that governs library lending. The first-sale doctrine holds that if you purchase a creative work, you can lend or resell it, and doing so does not violate an author's copyright. Even if there are real differences in how ebooks and physical books are transferred, maintained, and read, I don't see why those differences are material to the first-sale doctrine's granting owners of creative works the right to lend them.

In a nutshell: the first sale doctrine merely means that if someone comes into legitimate possession of a physical good containing IP, they are free to sell or otherwise exploit the physical good without requiring a license for the IP contained therein.

Crucially, the first sale doctrine does not extend to exploiting the IP itself, so if the IP is separated from the physical good (such as by recording or scanning a copy), the first sale doctrine no longer applies.

The first sale doctrine does not apply at all to library lending programs. Libraries providing digital lending pursuant to explicit licenses provided by publishers for digital lending.

You left out the second half of that paragraph: "For these reasons, the Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books."

Normal public libraries can do digital lending (and have, for decades) because they get proper licenses from publishers or authors to do so.

The IA is claiming that they don't need a license for physical books they own under the first sale doctrine, which is blatantly false: the first sale doctrine means they can sell or lend the physical copy of the book they possess, not that they can distribute the underlying IP of the book without permission of its creator. And even to the extent that the IA claimed it was limited lending on a one-to-one basis, it abandoned those limits and simply lent out as many copies as people wanted.

Also from the publisher's lawsuit: "Separately, Section 109 of the Copyright Act is clear that, pursuant to the doctrine of first sale, the owner of a lawfully acquired print book may dispose only of her/his particular print copy."

In its response, the IA denies that section 109 [https://www.law.cornell.edu/uscode/text/17/109] in fact says precisely that. It lets you know that their argument isn't premised in any sort of legal grounding.

> Normal public libraries can do digital lending (and have, for decades) because they get proper licenses from publishers or authors to do so.

Normal libraries do not need any licenses to lend books they own at all, but they can get a digital-only license, which is not ownership

> The IA is claiming that they don't need a license for physical books they own under the first sale doctrine, which is blatantly false: the first sale doctrine means they can sell or lend the physical copy of the book they possess, not that they can distribute the underlying IP of the book without permission of its creator.

CDL is not distributing the underlying IP of the book at all, its lending a single copy of the book using DRM to prevent anyone from copying or reading after the lend time is over. Only a single person can read the legally owned copy of the book at any given time.

> And even to the extent that the IA claimed it was limited lending on a one-to-one basis, it abandoned those limits and simply lent out as many copies as people wanted.

Yes it did it for a limited time (which I believe was an obvious mistake), and that's not what I'm talking about. What I'm saying is that the complaint ALSO goes against CDL in general, not only against their IA's national emergency program, as its clear from the parts quoted by you and me.

The publishers are overreaching when they try to end reasonable online lending, and it is good to see what individual authors think.

For the last two paragraphs, I have to disagree with your conclusion and will try to justify my reasoning.

First, have there been any numbers released for how many excess digital copies were lent, for how many books? Does anyone still have access to those uncontrolled copies? Did any of those exceed the total physical copies in their partner libraries' inventories? If the true total loans is limited and never exceeded physical copies, then it's hard to see how this aggregation of potential inventory was any more harmful than controlled lending.

Second, publishers and rightsholding corporations have been fighting for their own interests for literal centuries. They cannot be relied upon to strike an appropriate balance of concerns on their own. First it was the authors they stole from. Publishers were the original pirates, and authors had to fight back. Now publishers are stealing from the public, and there is often nobody to fight back on behalf of the public. Corporate cooyright terms now exceed the lifetime of most people. Publishers fight to erode basic fair use. Media companies bully others to build automated extralefsl systems to harass independent producers and reviewers. The balance of power is far too much in the hands of publishers, and the IA and other libraries need support when they try to act as a counterbalance.

Finally, this was a very limited duration experent in a very unprecedented time. How can you not support an organization that reaches out to help the disadvantaged during a global pandemic and lockdown? There was no taking from authors. No sales were lost -- people like me will buy books no matter how easy they are to borrow. This was humanirarian work at its digital best.

I am an author, but I am also an advocate for copyright reform. I would like to see copyright duration changed to something more sensible, such as its pre-1976 length (28 years + optional 28 year renewal). Yet as much as I support copyright reform, I also think it has to be done through legislation, not through the IA deciding the publishers have too much power and thumbing their nose at copyright law.

Regarding your assertion, "There was no taking from authors." One thing that I see widespread confusion about, even among educated people, is what gets taken away from authors when copyright is violated. Yes, loss of potential sales is one thing that affects authors when copyright is violated. But beyond that, what actually gets taken away is the right itself. Copyright gives authors the exclusive authority, for a limited time, to publish and reproduce their creative works. If the IA violates copyright, then even if it doesn't take away sales, it still takes away the right itself. It's important to recognize that the intellectual property right has value in itself, outside of how sales are affected.

I am all for humanitarian organizations helping people during a pandemic. But IA should do so by lending out things it owns and has a right to lend, rather than lending out things it doesn't own and doesn't have a right to lend.

Ideally all positive change would happen legislatively. Unfortunately that doesn't seem to be the reality we live in. I've argued in comments on other posts that some laws require visible lawbreaking before legislation changes. In that reality, it's hard to talk about working within the system of existing rules because the rules were placed by unmatchable lobbying. Since those on the other side of the debate lack the capital to overpower those who control the media (control the media and you control the message), some other way is required to get visibility and push for laws to change.

I'm definitely in favor of shorter lengths. Not so much renewal though as it tends to favor big publishers and media companies who are far less likely to forget to renew than some individual or small company is. (That's been one of the big pushbacks against a lot of orphan works proposals. In that case I don't really agree with the content creators but I do get the argument.)

That is a right authors have been granted only in order to encourage the creation of more works so any violation of that "right" should be judged on how it impacts that goal. It also is not really a right given to authors but rather rights taken away from everyone else.

Yet even during a pandemic, when visiting a physical library can literally be life threatening, most mainstream authors, (there are exceptions, but few and far between), still hold onto their "intellectual property rights" with all they can.

Is there an industry that gives a similar/larger amount away for free in value? Serious question.

The only other thing I can think of is various volunteering doctors and the like, but I am specifically interested in terms of "intellectual property" value produced.

I'll admit, there are some factors that make this complex.

For one, many authors have book deals with traditional publishers, who would also need to be a party to the agreement, and they have different interests than individual authors do.

For another, an opt-in program is currently infeasible, particularly for books that are older and out of print. That doesn't automatically mean, though, that an opt-out program is OK. Instead, it likely means that in the absence of a way to get authors' permission beforehand, there is no legal, ethical way to pull off what IA has tried to pull off.

But my point is that you're comparing the programming community's voluntary "donation" of open-source software to an involuntary "donation" on the part of authors. When you take something that belongs to me without asking me, then even if I would have been willing to donate it had I been asked, you've still stolen something from me.

> Yet even during a pandemic, when visiting a physical library can literally be life threatening

Nearly all libraries already have digital lending programs that are legal and controlled... IA just distributed pirated copies.

I think this view is colored by SV salaries. There are many places where programmers are paid in line with other kinds of skilled labor.

> if IP was abandoned and nobody could make money on software we would all be calling for lawsuits

Doubt it. Quite a few companies already make money on integrating solutions, support and consultancy services.

A great amount of software already has very lax licenses.

But I am not calling for that. I am simply asking for a bit of compassion during an unprecedented situation.

> Just because one medium is easier to pirate

Are you saying books are easier to pirate than software? If so, I have news for you.

> Nearly all libraries already have digital lending programs that are legal and controlled

Quite a few don't or the process is super convoluted, proprietary, requires plugins, mobile apps, Windows only etc.

> IA just distributed pirated copies.

There were certain restrictions in place, like time restrictions, but I guess this shows there's no appeasing the copyright lobby so next time IA might as well place no restrictions on it whatsoever. The backslash is the same.

I’ve never worked in SV

> Are you saying books are easier to pirate than software? If so, I have news for you.

Have you worked in software in the past decade? Everything is run as a service, either entirely online or backed by online services... good luck pirating that.

> Quite a few don't or the process is super convoluted, proprietary, requires plugins, mobile apps, Windows only etc.

As of 2015 90% of libraries had a digital lending program - you have no idea what you are talking about.

https://www.pewresearch.org/internet/2015/09/15/who-uses-lib...

> The backslash is the same

Except that again >90% of libraries do it legally without lawsuit because they follow the rules that respect artists and authors.

I am assuming you're from the U.S. Software salaries there are inflated practically everywhere compared to most of the rest of the world.

> As of 2015 90% of libraries had a digital lending program - you have no idea what you are talking about.

It's true that this was maybe 5 years back, (when I was still at uni), but while the option existed, it required some Windows/Mac only SW to decrypt the DRM and the reader itself was way worse in terms of features than literally any PDF reader.

As one form of "protection", you couldn't even highlight text. That is a major part for me to focus on the part I am currently reading and thus made the whole thing practically unusable for me.

I don't think you're quite aware just how awful most of this software is. It's one thing for it being "available" and quite another for it to be a "good experience".

As for me, I rarely use Libby because most of the books I'm looking for do not have digital editions and even if they did no library would bother to pay for the license. (I miss having a research library handy.) In fact, I usually only use it for light audiobooks for road trips, but they usually have so long a waiting list as to make it useless.

Having used the software across three different states recently I have yet to see one that doesn’t let me pull library books right onto my kindle - don’t think I could ask for a better experience.

When I used digital lending, forget Kindle. Forget any kind of "offline" for that matter. Use the proprietary reader app or be out of luck.

(This was in the UK a few years back.)

It is in my interest to not pay to read, watch or listen to anything.

Important people talked a lot about these opposing interests. In the end google books was killed, we were not allowed to read stuff written by dead people and we got to pay for this highly obnoxious global copyright gestapo who for example managed to equate the BitTorrent protocol with theft.

The readers got.... uhhh.... well.... to pay for it?

The deal we got is about as lame as to abolish copyright?

There is of course the collective interest as well. You nor me aren't all that important are we? Should we both be interested in well-red people or not? Do we benefit from others knowing stuff? Or is it perhaps harmful? Thanks to modern administration and other automations fewer people can do more work. There really are a lot of job openings but they all require a ton of reading.

I think we [some how] have to migrate to a subscription or patreon like system where you would get paid to write by the chapter. The quality would no doubt suffer but the model where civilization [maybe perhaps] owes you money doesn't work.

Maybe we can agree on how much you should be paid after you are dead? Or wait! We could agree that in the after life no one should enjoy the privilege to use ownership of your works to prevent reading of it.

I thought they partnered with library systems to only lend out 1:1 physical copies that weren't on publicly accessible shelves? If so, that definitely seems like it should be kosher.

But it's possible I am completely misinformed here.

Agreed that completely uncontrolled digital lending is literally just piracy. If advocates want that, they need to reform copyright law if for no other reason than so that publishers and authors know the rules of the game they're playing...

But under the "emergency library" they loaned out as many books as were requested.

(And, honestly, why stop at libraries? There's actually very little special about libraries from a copyright law perspective. There's absolutely nothing to keep me from putting a set of bookshelves in front of my house and do an honor system book lending or take a book/leave a book thing.)

The copies were still DRM'd and still expired after two weeks.

What is your estimate of the actual monetary damage that you suffered from the IA's action?

When an author writes a book, the laws grants them copyright, which means that for a specified period of time, they get the exclusive right to make copies (or authorize copies be made) of that work. Because they own the copyright, they are able to benefit from the sale of those books.

So when we talk about damages from copyright infringement, it's important to recognize that apart from whatever effect that infringement has on sales, the copyright itself is being stolen from the author, and that right has value. Granted, it is much harder to calculate monetary damages on the theft of a right than it is to calculate monetary damages related to lost sales, but that doesn't mean the right is worthless.

I found this section of the U.S. Code that prescribes statutory damages as a remedy in lieu of actual damages, presumably in recognition of the fact that copyright itself has value apart from lost sales: https://www.law.cornell.edu/uscode/text/17/504

All that said, I am fairly confident that I did not lose any measurable sales because IA chose to put my 2014 book in its national emergency library. But it infringed on my copyright nonetheless.

Irrespective of whether it is infringing (presumably the courts will sort it out), how would you measure the harm that you have suffered or will suffer due to the IA's action, and what do you think would be an appropriate remedy or compensation for you, based on that harm?

The author is only allowed to violate everyone elses right to freely share information in order to encourage the creation of more works. Has the NEL in any way reduced the creation of new works?

Copyright only worked because for most of its history copying at scale required specialized industrial equipment, and one could expect that anyone who could make an investment in that equipment could afford to pay the teams of lawyers needed to work out copyrights. There was never an expectation that an individual would have to consider copyrights when using their personal tools in their own home. Deciding whether or not an action infringes on a copyright ultimately requires a lawsuit of some kind, which is what IA is now involved in. Individual authors were not the intended beneficiaries either, and for the most part authors receive only a small fraction of the money publishers make on their work (or in the case of scientific publishing, nothing whatsoever).

The reality is that today's technology allows individuals to copy on a global scale from the privacy of their homes, using tools that are almost universally available. Copying is a normal part of the use of a computer. The majority of people do not spend a millisecond considering the copyright implications of sending a copy of something they were reading to someone else. It is beyond unreasonable to expect that ordinary people, who do not work for some copyright industry, are going to consult with lawyers every time they use their computer for something common and normal.

IA is an organization with lawyers available to advise on copyrights, and with the ability to fight a copyright case in court. On some level IA could be expected to work within copyrights, and in fact IA has done so by, among other things, imposing artificial limits on how many copies they will make available at a time, and forcing their users to use a copy-restriction system (DRM). You can complain all you want about copyrights but IA went out of their way to try to work within the system.

So-called "lost sales" are a red herring. There is no way of knowing whether or not a person would have paid for something if they had not received it for free. It also makes no difference how much money an author might have made if the world were different: we live in a world with the Internet and with computers in everyone's homes, and that means people are going to copy and they will do so without paying attention to copyrights. The sooner society as a whole accepts that fact the sooner we can stop wasting our resources on obsolete ideas and start building a new system that works well with the technology we have.