It seems like a wonderful opportunity to talk about https://en.wikipedia.org/wiki/Digital_obsolescence and DRM's effect on society's cultural memory. Even the most long-lived individual or most successful of corporations has a finite lifespan, and we have no societal escrow for the digital media which becomes a part of our lexicons. IA seems to be taking that roll, regardless. It would be nice if we could work out a framework within which to make it official and sanctioned. Copyright is a social construct, not a law of nature, and at least in theory we could band together and change the terms. Unfortunately, artificial scarcity is behind a lot of business plans.

The Switches games are all available on the Switch's store. There is no good reason to pirate them. As usual, pirates make excuses for ripping off creators.

Oh, you mean like the online stores for the 3DS and WiiU?

I think the audience on HN is somewhat amenable to the idea that some amount of piracy/copyright-infringement is necessary for preservation. Pretty much everyone here hates DRM, and hates that you don’t own your media anymore.

That said, when the Internet Archive is directly competing with both the Switch Store and ThePirateBay, then lawsuits from Nintendo are basically inevitable.

I agree with your broad point, because archival is important, despite what these big corporations think, but I think that the way that IA is doing stuff right now carries a very real risk of getting sued into oblivion.

I guess my question is how does one back up media for preservation after the store has been taken down permanently? Does that not imply that preservation activities must commence while media is still available? I don't see any other way to do it.

As I said, I think that some amount of piracy is necessary, and even hosting copyrighted media on IA is reasonable enough, just like any other library. I think controlled digital lending, for example, would have been fine. This has worked quite well for the US public library system (at least in NYC). I have only ever borrowed physical books a handful of times, but I've checked out hundreds of digital books without any issue.

I get that your question is asking more the "how do we protect ourselves from lost media being (intentionally) created if we're not allowed to break copyright?" and I don't think the uploading to IA itself of copyrighted media is even what the media companies have an issue with. If I rip a blu-ray and store it into a private data store (e.g. a non-public Google Drive or my personal NAS or something), I doubt that the entertainment and publishing companies would have much issue. I think the issue comes from the fact that the way that IA currently operates basically has no real difference between ThePirateBay, minus the ads. Any number of people can download any number of files at a time from IA, completely unrestricted, usually without DRM, and a lot of it is media that is still actively being sold.

It would be different if IA operated more-or-less like Abandonia, where they only allow public downloads of media that has no legal way to purchase it, because at that point it would be hard to argue that they're causing any damages. If they did that, I don't think anyone would bother suing them.

I'm hardly a moral paragon; I've torrented my fair share of movies and music in my day. I've also defended piracy as a way to fight against the huge number of streaming services [1]. It's not even that I necessarily have a "problem" with how IA operates, it's that I think that if they don't look like they're making a reasonable effort to fight pirated content, they're going to get sued over and over again. Whether or not they're in the moral "right" isn't really what's at issue.

[1] https://news.ycombinator.com/item?id=39692375

ETA:

I am aware that IA did do some amount of Controlled Digital Lending, but that's not what I am taking issue with. A lot of games/movies are just publicly available, unrestricted, for anyone to download.

Specifically of issue in this case -- there is a wide-open hole in the IA's book hosting system that allows anyone to easily download an Adobe Digital Edition of any book in the archive -- ADE's DRM has been broken for a long time. It takes 2 minutes to go from IA to a full OCR'd PDF. The result is that there are a LOT of decrypted PDFs in the wild that carry the Internet Archive logo on the very first page.

I am for DRM because it could enable something like the IA to host and lend books without violating author's privledge. The IA's implementation is foolish and, I think, carries the intent to allow exploitation.

At least the Adobe Digital Edition is a nominal attempt at controlled lending. It's not a great attempt, but it's something.

The thing that really concerns me is the fact that people are treating IA a general file sharing site. You can find complete sets of ROMs for basically any game system you can think of, TV shows and movies that can be downloaded completely uninhibited, completely DRM-free versions of books.

To some extent data harboring laws will protect them, but that's not a silver bullet; if they're not making an active effort to deal with copyright stuff I really think it's going to bite them, and that's a shame. The IA is an extremely valuable resource when used right.

In this case, the IA has applied DRM, just as media companies do, and anyone breaking that DRM is the person liable for infringement, not the Internet Archive. Even breaking weak sauce DRM violates the terms of the DMCA, and media companies have fought to protect their use of such insufficient schemes. I see no reason that legal wrangling shouldn't also apply to the Internet Archive as well as it does members of the MPAA.