Yes, but this case was not about digital presevation but lending out scanned traditional books without proper controls, presented as some sort of a social welfare project. Choose your battles.

What's the point of having digital preservation if noone can read the archives ? Digital access make sense, it's the logical conclusion to what IA does

But that's not what this case was about. Throughout the trial they have been allowed to provide continued digital access to the scanned books, granted they operate like a library (each borrowed book is backed by a physical copy.) The case was launched when during the Covid-19 pandemic they removed the limitations under the veil of "National Emergency Library":

https://blog.archive.org/2020/03/30/internet-archive-respond...

This seemed already at the time completely counter-productive and unnecessary step as it basically forced the publishers to react because it made IA's digital lending indistinguishable from casual e-book piracy.

They have now created a legal precedent that, in addition to finding the "National Emergency Library" illegal, makes the controlled lending they implemented previously illegal. Ever since the district court ruling they have been able to continue digital lending only by negotiating compensation terms with the publishers.

So, instead of expanding everyone's access to the digital archives, they have managed to indefinitely limit it by creating a restricting legal precedent. This was the inevitable outcome of "National Emergency Library" and they knew or should have known it.

> This was the inevitable outcome of "National Emergency Library" and they knew or should have known it.

They knew. I have an MLIS and took one copyright course and could tell immediately that what they were doing was illegal/wouldn't hold up in court. For them not to know would suggest that their staff is less informed than I am, which can't be true.

Under US copyright law controlled digital lending was clearly illegal. This case did not establish any new precedent, it's a plain reading of the law and the decision reflects that. You and I can both not like it, we can wish the law was different, but no court ruling was ever going to go any other way, and the reckless move of opening uncontrolled digital lending doesn't change that.

It may make logical sense to think of CDL as indistinguishable from physical book lending in libraries, but because it entailed making a copy, that was never legally the case.

I agree it was going to be a hard case, but I don't think CDL properly implemented is automatically illegal. The issue here is IA had a lack of control and couldn't assert the print copy came down in their CDL implementation. It's unfortunate this was the case used to test CDL since it was a loser from the start.

The point is that providing access to archives of web pages that were once public--especially if robots.txt is even retroactively honored--and CDL, while perhaps not adhering to the letter of copyright law, are sufficiently close to the spirit that most reasonable people see those actions as legit. (There's probably at least a case that you're just providing an equivalent proxy for physical access. IANAL) Especially by an entity which is reasonably viewed as an archive/library.

It is clearly illegal. It doesn’t matter whether you have a physical copy backing it. It doesn’t matter if you have control over your digital lending. Making a copy (digitization or ctrl + paste) and distributing it is illegal by default without permission of the copyright holder. This is the core of copyright law.

You can defend against the default presumption by arguing fair use. The IA did try this but it was very clearly doomed to fail, because they are providing whole copies for normal use. It was so obvious it was a summary judgement. “Fair use” is not a general term about what we think should be allowed, it has a specific statutory definition and there is no serious debate over whether CDL can be twisted into it. It may be morally right but it’s clearly legally wrong.

It may be ridiculous that yes, if you scan in a book, send it to your friend, burn your physical copy and delete your copy of the scan, that you inarguably committed copyright infringement. But that’s the law.

It's not clearly illegal. If IA had taken the 1 physical copy and loaned out 1 digital copy (not copies) at a time like it was the physical copy, there is a an argument for fair use (traditional format shift requires no commercial way to purchase the item, so that's the big change). The problem is that IA didn't do the controlled part. Lawyers smarter than me seem to think there is a case here, and are working on a real test case though it may be years away.

There is an “argument” because that does seem like common sense. It is nevertheless clearly illegal.

The ruling clearly addresses this in the section about the application of fair use to the idea of the CDL (that is, where the lending is controlled in the way we’re idealizing) and it was deemed obviously illegal. The very act of making and distributing a copy is what is infringement, and as the ruling clearly lays out none of the pillars of fair use come close to applying as a defense. Crucially, it is not transformative (it’s the same book used in the same way) and the entire work is copied.

The law is bad and it sucks and we need to change it. It’s depressing to me that so many really smart people don’t have a good understanding of this, probably because most infringement usually goes unpunished. We don’t get to deem it okay simply because it logically makes sense that controlled digital lending is obviously equivalent to physical lending. Unfortunately the act of making the copy and then distributing it changes everything.

And their poor implementation of CDL (based on the findings they were often missing the controlled part), has now set a precedence that will make a real CDL case that much harder. Grandstanding appears to have been more important than enacting change.

Good. Hopefully good hearted folks like the ones running IA will now see the error in engaging in DRM and drop the controlled part entirely. Yes that means they will have to take steps to insulate themselves from unjust laws.

> This seemed already at the time completely counter-productive and unnecessary step as it basically forced the publishers to react because it made IA's digital lending indistinguishable from casual e-book piracy.

casual e-book piracy doesn't include DRM.

> So, instead of expanding everyone's access to the digital archives, they have managed to indefinitely limit it by creating a restricting legal precedent.

Let's not flip the situation upside down though: IA didn't limit anything, the publishers did. The publishers have the possibility to make this possible if they want, and they don't want to: the responsibility is entirely on them.

Both copyright protection and fair use exceptions have valid but contradictory “logical conclusions” that require practical considerations, wisdom and negotiated compromise to balance.

Anyone going all in on either side is not on the side of maximizing access, which legitimately depends on maximizing the production of things to access.

Anyone making a crusade of only one side, without collaborating with the other, will damage both.

Not really. We ha an abundance of creation long before copyright.

I have never heard anyone claim there wasn’t.

In a controlled manner in line with existing laws, yes. The law is still the law, even though the law may not be what you or I would like it to be.

Funnily enough, the courts are the best place to change/challenge that law without a literal act of Congress. (Apologies for any snark, but this is somewhat fueled by another, similar debate had previously) In America there should be no such debate regarding defying law being bandied about as infallible or intransigent.

Courts are a good place to challenge the law only if there is a higher law that contradicts them. If we’re talking Federal law, then the step up from there is the constitutionality of the law, which is not an easy case to make. Usually what gets challenged is the Executive’s interpretation of the law more so than the law itself, which is still not an easy case to make, but easier than challenging a law passed by Congress. Typically these are big cases that make the news, but actual constitutional challenges are statistically rare and successful ones much more so.

The Internet Archive didn’t even get dragged into court for an interesting case, and their defiance was ideologically interesting but jurisprudentially uninteresting.

This isn’t about access to the archives. It’s about IA giving away books in violation of a specific agreement they made with authors. The archives are legally nebulous, but the written works are clear cut obviously illegal.

> lending out scanned traditional books without proper controls, presented as some sort of a social welfare project. Choose your battles

Present a better battle. I can't think of one - just that, enlarged in other fields. The battle against ignorance is the only one battle. Hail to the battle.

Do you think any book lent out by the archive would have turned into a sale?

It just didn’t materially hurt anyone, and it made a lot of people happy.

I think it was great, and while, sure, the battle was probably lost from the beginning, I like it when people challenge existing conventions. I’ve never stopped donating.

> It just didn’t materially hurt anyone,

It took a lot of money control from the publishers and third party vendors libraries force people to use for digital lending. Those vendors can force users to create accounts, collect reading history and personal data, push ads, and sell lender's data to publishers and others. It also let publishers restrict what titles were available, remotely censor content, or remove titles whenever they wanted.

The IA was creating their own scans which limited the control publishers had and cut out much of that data collection/ad pushing. It was a better deal for readers, but it was a worse deal for publishers and advertisers.

I still don’t think that is true, because it assumes people that used the IA library would have used anything else (something that’s not their local library which is also free), and I just don’t think that is true.

I didn’t suddenly stop buying books on amazon when I could get them from the IA, the people who used it were the ones that could afford those books from Amazon in the first place.

Of course, me ‘thinking’ something is no guarantee, but I don’t have the numbers to say one way or another.

> Yes, but this case was not about digital presevation but lending out scanned traditional books without proper controls, presented as some sort of a social welfare project. Choose your battles.

People were banned from exiting their homes. Libraries were forcibly closed. Emergency lending of digital books is the most noble battle they could have chosen.