librarypunk - 087 - Hachette v. Internet Archive

Episode Date: March 30, 2023

We’re covering the Internet Archive lawsuit point by point and discuss the implications for libraries trying to do CDL.  Media Mentioned Decision: https://t.co/vskSf6gqSH  https://controlleddigitallending.org/2023/03/20/hachette-v-ia-liveblog/ What is CDL? https://controlleddigitallending.org/whitepaper/  The Publisher Playbook: A Brief History of the Publishing Industry’s Obstruction of the Library Mission: https://dash.harvard.edu/handle/1/37374618

I'm Justin. I'm a Skullcom librarian. My pronouns are he and him. I'm Citi. I work IT at a public library, and my pronouns are they then. And I'm Jay. I'm a music library director, and my pronouns are he, him. The Internet Archive is dead. They died. According to Twitter. Yeah, no, there is no more human knowledge anywhere. Nothing is preserved. You can't get anything. Tumblr is also having a meltdown. Yeah.

I didn't notice it on Tumblr. I haven't been on Tumblr. I've been reading. I'm looking at the R libraries, and actually the thing that's dominating, that is the Missouri Public Library stuff. Yeah. Yeah.

I was going to send that to y'all that to y'all what I figured y'all would see it. It's fucking bleak. Yeah, well, I saw all of the pending bills for this year's Texas legislature. But the thing is, these are all the pending bills, so it includes, like, the one they always file that's like Texas secedes from the union.

So I can't really pay attention to that just defiled bills. But a lot of them are like eliminate tenure at all universities. They had one that was basically like basically just SEPA filters. And I was like, we already have this. So I'm like that probably wouldn't even get out of committee. And it was written in such a way that like it included higher education, but then defined students in such a way that excluded college students. So yeah, these are all just like junk bills.

So I'm not going to pay attention to. until any of these things get out of committee. But yeah, apparently the Missouri Public Library has pulled 4.5 million from libraries, which actually doesn't seem like a lot, but Missouri is also a small state. And includes St. Louis. Did you all see the whole Salt Lake, and it's not Salt Lake City, I think it's just Utah, but pulled some sort of school library book banning bullshit, and so a parent turned around and was like, okay, well,

the Bible contains all of these things you don't want to. school library. So I say, I say we just pull that shit. Yeah. What's that the malicious compliance? Yeah. Yeah. I mean, I don't know how well that'll work because it just makes the library have to do work. Yeah. And it's Utah. So. Yeah, it's, I mean, it's not going to make any Republican go. Well, that's a that's a damn good point. That's interesting hypothesis. Yeah. Yeah, it's fine. It's cool to do it. I understand why people do it. I don't see anything popping out of me at the R libraries, so I don't think Reddit has any questions for us. It's mostly just news. People aren't really posted on here.

You guys got to get in R libraries and start fucking it up. Start some shit so we can have commentary on it. Yeah. There's a book cart that looks like Kirby. I like that. Just one thing about Internet Archive. Oh, Flatbed Scanner Wrecks for Special Collections. That's fun.

Become a librarian, kids. Super excited. You can handle so many flatbed. items. So Hatchet v. Internet Archive, the case has been working its way through the court system. People have been talking about it a lot, not just since the decision, but before. So you've all probably heard about it. We did an episode on it before, but I will just kind of go over controlled digital lending again, which is it is a process that uses a mixture of first sale doctrine and fair use. So that library,

can make a copy of a book, a full work, and maintain an own-to-loan ratio so that you can remove the physical book from circulation, and as long as you are doing a controlled lend where people can't download the book or can't otherwise duplicate it and only checks out to one person at a time, so you have to have authorized users. Then in theory, but between those two aspects of the Copyright Act, you would be able to do this. libraries have been doing this for a while. They've been doing something similar with course reserves, although that's not full works. But what happened was the Internet Archive did an emergency...

National Emergency Library. National Emergency Library, where they turned off the on-to-loan ratio for a couple months during 2020. On the spurious argument that this counted for all the public libraries that were closed, but again, they didn't do any of the math on it, which is going to be a recurring theme today. So that got them sued. And so we've been waiting these last few months or year, really, year or so, kind of making a PR battle against the publishers waiting for this first decision to come down and it didn't go good for them. However, this is just the first case and they'll definitely appeal it. So anything that we talk about is possible to change.

But I did want to go through it since I was going to read it for work anyway. And there's a possibility that I've been worried about that control digital lending will be affected in regular libraries. if IA loses, and if we're lucky, some of the worst parts of this judgment will get reversed and not stuck as precedent. Because there are a couple things that might apply to regular libraries, but they're also the trickiest parts that sometimes can go either way. So that's kind of the good news. And could I, I guess, like, preface this whole discussion by saying that, like, to reiterate,

like, ignoring any, like, legalities or anything, the concept of just removing digital scarcity is a good thing. This is a pro-piracy podcast, right? Like, this is, like, not us and starting defending copyright law or intellectual property as a concept or anything. Piracy is morally good always. But, yeah, so as we tear IA a new one,

I guess I don't want people to mistake that as us defending the publishers or even our copyright system, piracy's still good. And what they were doing was morally good. as well. Yeah. Yeah. It was just too risky.

And it was, if it hadn't implicated libraries, it would have been fine if the risk was localized themselves, but by entwining themselves the libraries in this way, that's what got on my nerves. And I will say that I've been a staunch defender of them until, like, yesterday. When I learned some shit. And now I'm, now I'm mad because I've been defending them this whole. fucking time knowing how risky it was because I thought what it was was so important. And it is.

But I'm pissed off at them now because they've just been sloppy and lying about it when they didn't have to. Anyway, we'll get into it. Yeah. I just had to like preface this whole discussion. It's what I said on Twitter, like, piracy is good. Control digital lending is good. IA. is not doing either of those things very well. Like, if you want to be a pirate library, you should stay under the radar.

are if you want to do CDL, you should not get yourself sued. What I said was internet archive is like that friend in your group that you know is going to get you kicked out of a bar. And you're like, like, you still like them, but you need them to shut up right now. And they need to be better at advocacy because it's like the reason why so many non-librarians are acting like fucking deep impact is happening is because of, like, I don't like those phrase regular library, but I can't think of a better word right now. regular libraries, we're shit at advocating for ourselves

and letting people know what we do and what we offer and stuff, whereas the internet archive is very good at it. They are very good at it. And so now they've made this connection in the general non-library in public mind that they are the entire infrastructure of human knowledge and without them we will all fall into like madness. Yeah.

Which is simply not true. Yeah. It's fucking sitting on my car hood staring at me. Through my window. You're next. I'm like reading a book that's got similar plot points. You might be about to be like seduced and murdered and cannibalized by a gay ghost based on this book that I'm reading. Sounds like a good way to go.

Have fun with that. I was listening to The Quarator's podcast. I love that podcast. We need to have them on. I know they won't do it because they only want to do it in person. Oh, yeah. But they were talking about something and their guest was like, Oh, yeah, that reminds me of this manga I read where a guy, like, moves into a haunted house and he keeps like, the ghost keeps trying to fuck him.

I'm like, that sounds funny. I want to read that. It was a hentai. The guy who just was describing a hentai. I don't know if he forgot that it was. I started reading it. And there's like one fourth of every chapter was just ghost sex scenes. Yeah.

This has got some, like, pretty hot. It's called Red X by David Demchuk. I like that kind of stuff. Actually, I'm not making it. No. It's really good so far. It takes place in Toronto for all our Canada listeners out there. I'm liking it a lot. Oh. Let's fucking do this, I guess. Yeah, there's a lot. I would do the whole thing. I made bullet points. They were very helpful bullet point. Thanks. Thank you, Justin. Yeah, I needed it just for my own sake, too, because reading a legal opinion is very annoying because there's a lot of foot, like, in-text citations, and there's a lot of footnotes, which are actually good because they're not end notes. So you can actually, some of the best.

stuff was actually in the footnotes. Thank you for taking that bullet for us. Oh, look at Arthur. He knows we're about to do something annoying, and so he's hugging me. So there were motions for summary judgment on both sides. The judge granted the publishers and denied the internet archives. According to some people I know, that's not a good thing to lose in this case. Also, basically, the internet archive lost on every factor of the form.

factor test. Some of those are more important than others that you never expected them to win on. But they did lose on all of them, which is not great. And surprising. Yeah. Yeah. I was reading the live blog with Kyle Courtney, who is the guest, you know, we had on for this earlier. And a couple of other people when I was reading through that, it sounded like it was just the AIs or mostly the AIs arguments, but it sounded like they actually had some four at least a couple of the factors behind them. So I'm curious as to what changed, like, during the course of the, it's not a trial, the hearing, whatever it was. Yeah. I was going to say, it also kind of sounded like the judge wasn't really, it wasn't really understanding what he was being asked to make a

judgment on. So there's that too. Yeah. I mean, again, this is all up to, it's all up to appeal. and even the judge didn't even address whether or not, like, internet archive counts as a nonprofit for statutory damages. He's basically just saying, like, you know, whenever you appeal this, we'll get to it later. So it really is like everyone knows that this is just the beginning of it. So I don't know what would have happened if they hadn't appealed if it would have then gone back to the judge to decide that part. I don't know how that works. There's a lot of, like, actual legal stuff in this that I tried to ask some people about before today.

But a lot of people are just keeping their heads down and not really speaking out about this because, you know, the Internet Archive should appeal it and hopefully we'll get a better judgment. So some lawyer types that I know are not going to talk about it. But this is just kind of a – I want to summarize what happened. Also, there is a program that the Internet Archive has that I wasn't super aware of how it worked and it actually factors into this suit pretty big. I also didn't know this and this is what made me mad. Yeah. So Internet Archive has an open library. program similar to the Hathie Trust E-T-A-S.

So with the Hathie Trust one, if you were closed down during COVID and you are a Hathy Trust member, they already have a copy of your catalog. So what you could do is say, hey, the library is going to be closed with no one accessing our collections from this day to this day or for the foreseeable future. And then Hathy Trust will open up if you have single sign on so that your users can authenticate in Hathie Trust, they can go in and get an e-book copy of however many copies you have. See, if you have three copies of like Tom Sawyer, they can get three copies checked out through Hathy Trust's system. In an archive, I've had a program like this, but what they did was

weird. They would do the same overlap analysis with the catalog, but what they would do is if you had, say, Tom Sawyer in your catalog, they would add another checkoutable version to the Internet Archives Open Library that anyone could check. out. So it didn't have to be like one of your users. And it didn't matter if you had like three versions of Tom Sawyer. They would just add one and they didn't check or confirm in any way that that version at that library was not circulating. So it could have been checked out twice, which would undermine the whole idea behind control digital lending that there's an own-to-loan ratio. It just also seemed very sloppy. And that's kind of like my major sticking point is that both doing

the National Emergency Library and running the Open Libraries program like this was way too sloppy, and it was exposing a lot of libraries who are partnered with them to risk. And the judge picked up on this. It said, here's a quote, IA concedes that it has no way of verifying whether partner libraries remove their physical copies from circulation after partnering with IA. IA admits it has never taken action against the partner library that did not suppress circulation properly. Yeah, again, morally, I'm fine with this. However, the fact that they have been dominating the control digital lending discussion to the point where people associate control digital lending kind of solely with what the internet archive is doing and like have been like really touting this owned alone owned alone just like a mantra they've been fucking repeating it for like a year owned alone and then they've been doing this they haven't been doing the thing that they were like this is rock solid legal it's fine owned alone it's what we've been doing this entire time And then they haven't been doing it.

And the thing was it's not that hard to do because all they had to do was say, you have to remove these from circulation, and we will check your catalog that shows that that copy isn't circulating because they already have access to the catalogs. That's all they had to do. Because what Hathy Trust does is they just send you an email and says, hey, is your library still closed? And you go, yes or no. And they say, okay, do you know what date it's going to open?

And we say, we're aiming for this date. So we'll be closed at least until then. But then they still keep checking up, like, hey, are you still? closed. Harry's still closed. So they manage their liability that way. And this is, this program is similar to Hathy Trust's ETAAS. And I don't want that to go away because if we have like a hurricane or the campus floods, we can turn that on like that. And it can be back on. Yeah. It's really nice. Yeah. Yeah. It's fucking slick. It's great. So if Hathy Trust gets nervous and this goes away, that's like a tangible impact on my fucking job. And like you wouldn't even necessarily be like,

And again, like, I don't know if this is legally exactly how it works. But like, couldn't you just take a copy and stick it in reference so people can't like can't check it out, but can still reference it within the library? And then just that could be your copy. That's part of the open library. Yeah. When I worked at UNH, we pulled them from circulation. Even once we reopened the library building and stuff, we just pulled those copies from

circulation because of like, I think like the stacks were only open like a certain amount of time or something. I don't know. Like there was some reason where we could actually pull those from circulation and still have the Hottie Trust stuff, like, turned on. We eventually did turn it off, but there was like a way that like we were open for a little bit and also had that on. Like there was an overlap. And I think it had to do with like we pulled stuff. Yeah. And that makes sense. But like, I guess I'm just kind of curious as to what, would not circulating how that's defined. Yeah. But that's probably an in-the-weeds question at this point.

Well, that's because that's one of the things that we would like to use CDL for is special collection stuff that never circulates, right? So you could basically look through everything in special collections and turn on CDL for that. But then would that mean no one could access the physical copy in special collections? Well, maybe, but then who would ever, how could you ever tell? Because you would have to cross-reference that with what time was the e-book checked out and what time was someone viewing? the book in their reading room. So that would be like a little like wiggle area I think you could probably have that a normal library would never get sued over, but Internet Archive and Hathie Trust are like one single target. And they're not libraries. And Hottie Trust has already been sued

once. Yeah. So they don't, publishers are more likely to sue them. Yeah. Yeah. They don't want to sue a library, but suing Internet Archive, that's politically kind of viable. So, yeah, maybe. But I don't, I don't, I don't, I don't. know. That's how I would probably run it if I did it at my university. There's one thing that I'm not clear on, and I haven't gotten any further on, but the Internet Archive didn't argue anything for controlled digital lending under Section 108, which strikes me as weird, but I realized Section 108 isn't mentioned in the white paper either. And so that's the part that says, like, if you are a library, you have the right to make a copy of a book, no more than one

per copy. So if you have like three copies at Tom Sawyer, you can make three backups and bind them, and you can circulate them as long as you're a public collection. So for me, that's like, why wasn't that part of the justification of CDL? I don't know. So I'll have to ask Kyla at some point, because I didn't get a chance before. But so all of this, Section 108 is completely just like not in the picture. And it also means Internet Archive has sort of alighted the question of whether or not it's a library, because you have to especially be a library for that. Although Internet archive is a special library in California. So I think legally if that came up, they would be able to be like, no, we're a library. We're recognized by a state of California. Right. Like, they definitely count. Yeah, I'm not like interested in that argument, really. Yeah. I made a joke about it that libraries are vibes. So the question is whether IA passes the vibe check. Right now, I don't think they pass the vibe check. Exactly. The vibes are kind of rotten. The vibes are kind of sloppy. Yeah, yeah, yeah.

They got they, they sloppy vibes, sloppy-toppy vibes. I've been using CoStar a lot recently because I don't know. I just been having fun getting my daily like horoscope. Yeah, it's kind of fun. Yeah, it used to be a lot meaner. I'm kind of sad that it's more normal because it used to be like, it's like all the eye now. Yeah, it used to be like, don't don't talk back to anybody today.

You just get yourself in trouble. Like that kind of stuff. It's like true. It was funnier. Yeah. Yeah. But yeah, I want to add internet archive on CoStar. and see what their reading is.

What do you think their big three is? Oh, God, I'm not an astrology faggot. Like, I'm really not. Yeah, I don't even... They are not a tourist because a tourist would never be this fucking sloppy. They're also not a Capricorn because we Capricorns are too serious business for this fucking nonsense. Do they're Gemini's. I was just about saying somebody's going to accuse them of being a Gemini, in which case my wife will come for you because, like, they hate that Gemini stereotype.

I don't know. So we'll look up when the IA was founded and throw it in the co-star. I want another big three. Yeah. I might actually just do this after. The astrology queers who listen to us, I'm sure there's a few of you out there. Do do a chart for the IA. Report back.

Yeah. Where's their mercury? Email us. We'll read it out on the pod. Yeah. library punk pod at gmail.com. So the main issue in this case is the four-factor test for fair use. And you'll learn about this in any kind of overview of copyright, any kind of copyright presentation.

But I'll go over it real quick. The character of the use, that's the first factor. Is it transformative or not? So are you using the work in a new way? To the nature of the work being copied, fiction is more protected than nonfiction. Doesn't matter here. They used both fiction and nonfiction. So, you know, they probably were always, that was always more or less neutral.

Amount used, less is better. So full works were used. This came up when comparing to Google Books and Hathy Trust cases. And then the effect on the market, this one's always tricky because you never actually seemed to have to do a market analysis. This was the one I expected they would win on. And with that they didn't, I was a little concerned, but I talked to some people and there's basically a chicken and egg problem here.

Like this one is also vibes based? Yeah, this one really depends on the judge you get, I think. Is copyright just vibes? Yeah, I mean, the law is just vibes. We're getting like Likhanian in here. We're like in like the symbolic realm right now. So publishers didn't critique Internet Archives use of the text for data mining. More or less, that would be considered a transformative use.

The Hathie Trust case, for example, is transformative because it was scanning the full works to make an index, but it wasn't providing full access reading. And that's basically the same thing for Google Books is it only provides context snippets, but it doesn't provide the full book. The Court of Appeals in the Google Books case, caution that providing the digitized form would be a strong case for copyright infringement, but they didn't say that it would definitely be. So there is some room in the precedent. The Hathi Trust's second holding that print disabled users getting works in formats that they can use is fair use. But the judge in this case said this only applies to print disabled people. So there was no threat against that. It's pretty well established.

So there's no threat there. It notes that plagiarism detectors are transformative, which I was like, uh, whatever. But again, it's the same thing. It takes the full work. It's not providing the full work. And it transforms it the same way by creating an index that it uses to check plagiarism. So that's interesting precedent. I wonder how long it's going to hold up against all of these commercial AIs, though.

Yeah. But that's the precedent as it stands now. Did you see the tweet, the Copyright Office tweeted about they're doing a thing about AI and copyright like soon or something? Saw it. I didn't read it. I meant to do that. Yeah.

Maybe that could be, yeah. We'll have to do something. Follow up reading. Yeah. Yeah, people are definitely interested in AI and copyright. So it's a new webpage about their. AI initiative. Yeah.

Internet Archive argues that it is expanding utility by allowing distribution over the internet in a way that does not harm the commercial interests of the copyright holder. That's basically the long and short of the entire legal argument is by digitizing it and delivering over the internet, that's transformative use because brick and mortar libraries close. They have operating hours. There is distance issues. And it relies very heavily on the Sony Corp of America versus Universal C.

Studios, which is also the Betamax case, which allowed for time shifting so you could record the prices right, and then watch it again later. And that was not copyright infringing because it is a transformative use, a non-commercial, nonprofit transformative use to do something for the utility of the work, which is to change what time you viewed it, which actually made me think the judge was being a little conservative here because that to me doesn't sound too far from making an argument about distance shifting or time shifting, say like if the library is closed after 9 p.m. If it was just, and again, because the internet archive is doing this kind of openly, if it was just your local library will give you access to ebooks when it's closed and it's

controlled digital lending. Yeah. I don't see how that's not a utility enhancement because the building is closed. So like, why not overnight or on weekends when they're not open? If you have like a small rural library, why not do it that way? So he didn't forestall it, but the judge was also pretty unimaginative. I remember somewhere in the case, I probably have it written down, but he said, like, there is no precedent on this. I'm like, well, yeah, because it's a new thing. He was basically saying, like, no one's done it before.

And I was like, well, not everything is precedent. Like, you do have to make a decision about whether or not this new thing is okay or not. Yeah. Well, and they discussed that a lot in the live blog, too, as they just kept pointing out, like he seemed really hung up on whether or not there was a precedent for us, like a one-to-one precedent for it. It's like, well, no, that isn't. It's not, it doesn't exist, which is why this is in court to begin with. Which makes me think that like this judge was being so conservative and wondering all this, because maybe he's just not familiar enough with like how libraries

operate or copyright law in this kind of situation or how digital realms affect copyright law with libraries and stuff. Like, it sounds like maybe this is him coping a bit. That was my kind of impression, especially having, like, I read the notes and went through it and then read the live blog. And it definitely sounded like he was getting hung up on the, well, libraries can buy a license, especially for the fourth factor. Libraries can buy a license.

So therefore it's, you know, and it's like, that's not, that's not what we're talking about like in this. It was, it seemed. that he could, yeah, wasn't quite understanding. Yeah, to the Internet Archives credit, a lot of the books that are in their like Books to Borrow program are mostly books that are like out of print or older. Like they're not really the ones that you'll necessarily see in like overdrive or even in like academic packages, like they're older ones usually.

Like this isn't like the James Patterson latest novel. No. No, it's really like out-of-print stuff or just stuff that's not as common. Yeah, and he brings that up and he dismisses it, but he doesn't do it like, he just says, well, you know, just because it's a little older, doesn't mean it's out of copyright. So it kind of just like, you know, says, well, it's in copyright that doesn't allow copying if it's over five years old or whatever. Yeah.

But the judge argues Sony doesn't apply in this case because Sony only sold Betamaxes and not the content, which is weird because Internet Archive isn't selling the content either. it's providing it for free, and then brings up the e-book licenses in this section that Internet Archive could buy, implying that this is impacting the market. So he alludes to the market impact a few times before he actually gets to the fourth factor. Martin Paul Eve pointed out that this was a weird take on the Betamax case. There's also a case called TVIs, which was a database to search transcripts of TV that was commercially unavailable.

TVIs lost that case because it infringed too much on the market value of content. And again, this is implying the existence of ebook licenses. It means Internet Archive is impacting the market. But again, as I was reading this whole case, like, it sounds like TBIs should have been transformative. Yeah. But they lost in that case. Just from that little bit, it doesn't sound like it was, like, very much different from the Betamax case. Yeah.

Or from, like, Hathy Trust. But Hathy Trust might not have happened yet. So maybe if TVIs was relitigated, it would be transformative now with Hathie Trust. Judge rejects all transformative potentials of distance shifting or time shifting. He doesn't use those terms. I use it. But that's just how I'm putting it in my head is like, no, this could be transformative if we get the right judge. Yeah.

A use does not become transformative by making an invaluable contribution to the progress of science and cultivation of the arts. And that's a quote from the Hathie Trust case. I guess. I find that weird. But it's it's a little pedantic because it's saying transformative means you have to use the book in a different way. Like, you have to turn it into a database and use it that way. Like, you can't just, like, it can't just be a good thing for the public good. It has to meet this transformative rule, which is weird because, like, all these rules are, like, judicial constructs anyway.

So, like, you probably could ignore them if you wanted to. I'm listening to the 5-4 podcast, which is about really bad Supreme Court cases. So their whole thing is their legal realists. And they're like, yeah, it's all made up. The Supreme Court just judges however they want. like Scalia really hates, like, weed. So like any case involving weed, he suddenly, like, forgets all of his other principles.

And it's just like, no, this person needs to go this, like, super mega jail. I was skimming an article by Cory Doctor earlier today about the Supreme Court and how, especially during the Civil War, like, Lincoln just straight up ignored a bunch of their rulings when it came to slavery. And eventually the Supreme Court was just like, okay, yeah, like, basically caved to public pressure about it. So, like, yeah, it's, they're just words. They're words that will get you in legal trouble, but, you know, they are still just constructs.

Yeah. Bunny cam. I ran out of stuff the drink. Talking a lot. Yeah, I'll need to get up in a second to get water. Stay lubed. It's all that's sucking and fucking on the bird trail, Justin. First, the kiss, then the come.

The internet archive is not an edge. educational nonprofit users. This is the weird one for me. This is so weird. Yeah, that's the one that got me too. Like, how are you defining profit here? And are you being consistent with it? Because, like...

They're getting into, like, social capital. Yeah, and, like, reputation and stuff. Yeah. Marxists when it's convenient or not. Marxist when it'll fuck us over. Yeah. I mean, this is really weird. He cites a lot of precedent to these weird cases of, like, churches doing copyright infringement.

The crux of the nonprofit, of the profit-nprofit distinction is whether or not the sole motive of the use is monetary gain, but whether the user stands to profit from the exploitation of the copyrighted material. So I don't know where if this is just like his take on these cases or if this is already existing precedent, but it's very weird. It's not stated in the law. No, and like the distinction between a non-referencing. nonprofit company is that it doesn't have shareholders. Yeah. Right.

So it uses profit to mean profit, like capital, dead presidents, not reputation. It brings up affiliate ads with Better World Books. So like if you click a link to buy something through Better World Books, Internet Archive will get a little money. Nonprofit doesn't mean you don't make money. Right. So that they get donations, which I said, guess that means every educational fair use context should also consider that universities bring in money via tuition. and donors? And churches get donations.

Are those for-profit? Non-profit doesn't mean you don't get money. Yeah. You have to have money to keep the lights on. Well, and even going even further, it's like if churches make money, I mean, the Mormon Church takes 10% of every member's income if they can get it. Like that is a backbone of the Mormon church, right? And they don't pay taxes on it because it's a donation.

So even going further, it's like, if that is how you define profit, then churches wouldn't be non-profit. So churches should be paying taxes, which freaks every Republican out. And then also like even like state public universities. Like basically all of higher education suddenly turns into for-profit education. Libraries take donations. Like your brick and mortar libraries have a foundation. And then nothing is funded by the state and then everything is private. Yeah, that's such a weird...

This is the part that scares me. Yeah. EBH, this is the part right here. This is... Like, all the other stuff is also worrying about CDL, but it's this right here in a case this big that freaks me out. Yeah, I think this part might just get ignored on appeal because it wasn't... It didn't seem to be necessary for the judge to even bring this up of whether or not it's an educational nonprofit user. I mean, it's doing it in the fair use analysis.

to say that as an organization, it's a nonprofit, and then that it isn't because their pages are monetized. And I was like, so would Wikipedia's. So this next section is where the judge gets into section 109, which is the first sale doctrine, and says it doesn't cover this case, and it cites re-digy case, which was decided not that long ago. And also, I think, wrongly. But the, okay, is quote. But Internet Archive points to no case authorizing the first recipient of a book to reproduce the entire book without permission, as IA did in the works and suit. So this is where the judge says, well, it hasn't happened before, and it can't point to a case where this happened before, so I can't make a decision.

So this is like textbook judicial conservatism, like, I'm not going to legislate from the bench. I'm not going to make a decision. This needs to go back to Congress. Like, basically what the judge is saying is Congress needs to create this CDL right. Which is true. Yeah. And actually, after I wrote.

wrote the notes for this, I went and read Kyle Courtney's history of publishers and libraries. And I actually learned quite a bit because he talks about how we got like fair use written into the law, how we got first sale doctrine put into the law, how we got, like, those things weren't in the law before. And I think even first sale wasn't in the law until very recently. I think the copyright act from 76 only went out to section 108. I think 109 was added later. where first sale was actually codified. So there's a possibility of just getting a little bit tacked on that says libraries can do control digital lending and that would be the next section in the Copyright Act. And it might not be politically too hard to do.

Right. Like I will say like Kyle and library futures have been very smart and that like while they've been like talking about this case and all that they've been talking about just like more broadly a library's right to like own its. shit and control digital ending as part of that and also like thinking about our relationships with vendors and publishers as part of that and we can have that discussion without centering the internet archive and i feel like that's been very smart tactically to start having these conversations without always talking about the internet archive as part of it with like kind of taking away that centering of cdl equals internet archive right yeah and so the judge points to the re-digy case in which first sale doctrine, which is section 109, does not

include a right to reproduction, because that's a different section. And then he says directly, any broader scope of the first sale doctrine should be sought from Congress, not the courts. So he's just textbook judicial conservatism. Yeah. Even if the own-to-loan ratio was properly maintained, judge argues re-digy is instructive in this case, quote, the measures re-digy took to avoid increasing the total numbers of copies in existence did not rebut or nullify the fact that reidgis program unquestionably created new copies. It was not considered transformative. There was no combination of fair use and first sale in this case. That's true, although the differences, control digital lending would be done by libraries, which do have some copying powers.

Right. Like, 108 gives us extra juice. Yeah. Yeah. That's the one that says we can make an extra copy. Yeah. Right. Like other people don't get to have, yeah. It's so weird that they just, 108 would have been so helpful in this. Yeah, there must have been a reason. It's really confusing. Because the first and third factors were in favor of the plaintiffs. The judge then cites precedent that it follows that the fourth factor market impact is also in favor of the plaintiffs.

This was lazy. So lazy. He's saying he didn't have to do the fourth analysis because there were other cases where they didn't. So he's already been foreshadowing that ebook market exists, points to IA presentations to library saying they won't have to re-perseeing. they won't have to repurchase books in the licensed market multiple times, which kind of shows market dysfunction, but the judge doesn't seem to think that matters. Points to the Andy Warhol Foundation case a lot in this section. I'm saying that a rights holder bears only some burden of identifying relevant markets. It assumes that scans and e-books are the same.

E-books can have extra features. Which is transformative. Could be, yep. Well, I mean, e-books, I would assume, e-books you buy from the publisher, they can have bells and whistles. You made a scan. I think that makes it transformative because you are moving the way to use a book. Okay. Yeah. I see what you mean. Well, ultimately the question under the fourth factor is whether the infringing use poses cognizable harm, which means imagined harm, not demonstrated. Which like, I'm sure those publishers can imagine all sorts of harm because they're really good at it.

So much harm. Because they do it to their fucking authors every day. Yeah, like authors, if you are listening, and your publishers have convinced you that this is like destroying your livelihood and stuff. I promise you there are way sexier boots you could be licking in a kinky gayway than the ones that you are doing now. I promise. And that's what I said. I kind of avoided actually reading anything off of Tumblr about this case just because, you know, it tends to be very alarmist and the sky is falling. And I knew we were going to be talking about it. So I didn't want to.

I didn't want to taint my view, I guess, before we talked about it. And a lot of what I saw was basically authors being like, well, basically it's okay that AI is failed, like lost this case because they were basically stealing from authors, which is incorrect. Which I would necessarily say it's incorrect. I would say it's more of a matter of perspective. But in the end, the person who's really getting screwed over, or the person who's really screwing over everybody is the publishers, because, as pointed out in this case multiple times, the publishers made bank all throughout the pandemic while this library was open. They actually had more profits during 2020 than before. So if authors are like, well, they were, you know, AI was stealing from us during 2020,

well, then, but your publishers were making a fuck ton of money, then the publishers weren't giving you your due for the money that they were making. It just seems classic, like, I wouldn't say boot looking. There's a word for this that I cannot think of. It's basically when, like, you pit two people against each other who are, like, basically. Who actually have the common enemy. Who actually have the common enemy. So that the common enemy can get away with something.

It's not rabbit season. It's not duck season. It's Elmer season. Yeah. It's, I think the term for this, like, false consciousness, like, when you think the capitalism works in your favor. and you've convinced yourself that it does, and then that prevents you from seeing the commonality you have with other working class people. Yeah. So for this market impact thing, I reached out to a lawyer friend or a JD possessing friend.

I'm not going to mention them because I know they don't want to talk publicly about this, but I asked what's going, I thought for sure you had to demonstrate some kind of actual market harm from like the Georgia State University case or something. something. Right. And they said, okay, fair use jurisprudence has this chicken or egg problem. If it is fair use, that can wipe out a planned for market, so a potential market. But if planning to have a market in a space is all you need to do to show market harm, then there would never be fair use. So the courts slide in either direction, depending on how much sympathy they have for the claimed fair use. They both say, the Georgia State and Hathie both say at various times, just saying we want to sell rights to X is not enough to establish that people have to get permission to do X. So I think in the GSU case, that was the course packs, and they wanted to,

they were getting chapters and stuff and e-resources. They weren't actually course packs. They kept getting called course packs to poison the well, but these weren't for-profit course packs. These were library e-reserves. And the publisher in that case said, well, we might in the future licensed one chapter at a time. So that's a market harm. But in this case, there actually is an ebook market that already exists. So I can see why the judge is like that doesn't count, because in that case, it was do individual chapters get licensed. I think that's probably the distinction the judge is making. But again, hopefully, I mean, this is the one that I thought for sure Internet Archive would at least have a more sympathetic outcome, even if they didn't win ultimately.

but the fact that the judge just threw out all of their market aspects was really the most frustrating part of reading all this, was that there seemed to be no way that Internet Archive could demonstrate that it wasn't doing market harm. And they point that out in the live blog, too. Somebody says they're basically asking Internet Archive to prove a negative. Like, how do you prove that you didn't do something? And they also discuss how often it's not set in stone how, judges can put the burden of proof on each four factor, on each factor that like it's not actually stated like the plaintiff or the defendant is the one who has to like deliver the burden of proof

for this specific factor. There's just sort of the way that judges have interpreted it over time and that this, at least one of the people in the live vlog said that this was surprising that they put the proof on internet archive because traditionally it's more put on the person who would be losing the profit. So I think that that was a judge call and very well might, hopefully might change in the future. Yeah, that's one that I hope changes because if that gets, if that kind of follows to the appeal, then there's no way in an archive is winning. Yeah.

Because if they can't win on the fourth factor, then it'll be really hard to win on like the burst factor, I guess. So this is the part where statutory damages are not considered under like nonprofit law, whether they're a nonprofit educational user or not. It could have just been accepted, but it wasn't, so this was just deferred. Most people I talked to found this puzzling and not sure what it means. Google Books and Hathy Trust cases were not affected, so both of them are set as good precedent, so nothing got undone there. We already talked about the implications for Hathy Trust's emergency temporary access service.

That's probably the closest thing to the Open Library Partners. but as of right now, Hathy Trust hasn't said anything. They haven't sent me any emails, but they do have a series of meetings coming up soon where they're going to reach out to members about their strategic priorities going forward. So maybe they'll mention that they're going to keep doing it, but so far they haven't done anything.

Enemy of the pod, Maria Palante. I'm not familiar with who this is. Why isn't this point? Okay. Okay. She was head of the copyright office. She's my personal enemy. She misappropriated millions of dollars while she was the head of the copyright office. She's now the chief executive of, hang on what's the name?

I always get these publisher groups mixed up. Association of American Publishers. They're like the most annoying publisher group. Oh, boo. Yeah. Yeah. Fuck that. Ugh.

She said, told the Wall Street Journal that if Internet Archive's conduct is normalized, there would be no point. in the Copyright Act. So, you know, typical kind of stuff that Association of American publisher says. But yeah, that's more or less the results of this first case. There was other stuff in the decision

if you wanted to read it, but this is kind of the highlights. It's really all you need to know. And this does not affect the Wayback Machine, nor, like, universities that have used Internet Archive to scan their archives and, like, out of copyright special

collections and stuff that thing gets hosted, this does not affect that. The Library of Alexandria is not burning, guys. Calm down. Like I said, the sky is falling has been a lot of what I have the public reaction following this case in both directions. So, yeah, it's, I guess the reason I want to do this episode one is so that people can get like some accurate information because there's just a lot of misinformation, a lot of hyperbole. For instance, the text, article pointed to Section 108 when it was talking about this case, but actually Section 108 isn't used in this case at all, and it's not part of Internet Archives defense. So you might, I don't want, I don't want people to get the confused idea that Section 108 was

relevant here. The market effect stuff has also been overstated in terms of like, this is, this is going to affect how that libraries even can lend books of any kind because of that, no, first sale is in the law, it's section 109, it's fine, it's codified in the law. First sale is not going anywhere. This is about getting first sale into this transformative use with

controlled digital lending. And I don't even know if controlled digital lending is necessarily under attack here. It's them being sloppy about it. I mean, it definitely says that in this case, it's saying that you can't combine first sale

and transformative with a transformative use. It definitely says that this isn't allowable, it's because you're doing the whole work. Maybe if you're doing snippets like Google Books, but it definitely is saying you can't do controlled digital lending, but I don't think anyone is going to freak out about it because I think a lot of libraries doing control digital lending are not going to be targets for lawsuits.

So since this is not like a big case yet, and it's going up for appeal, no one's really going to stop doing. controlled digital lending, but this might stop people from starting a controlled digital lending program. And that's kind of one of the things I've always been worried about was if they got sued, this stops people from implementing these programs at regular libraries like mine. If I go to do this, someone's going to go, didn't they lose that case? And I'll have to say yes, but we won't get sued because no one cares about us. Yeah. So next week, I will report back because my library is

part of the Fenway Library Organization in Boston, and which has a controlled digital lending community of interest is the main reason I had my library join this organization, because it's something I'm interested in doing with sheet music, right?

Because we are tiny and small and don't have a lot of space and would love to put that stuff in storage and then to circulate digital shit, right? And I got an email saying that, like, we would be talking about this at, because there's a meeting next week, like a regular meeting of this community of interest, and that this, they're like, we're not sure what we're doing now because of this. So we're going to be talking about it.

So I will report back because they're, they're the ones that they have hosted the like, in like GitHub, the like weird like Google suite like script for doing control digital lending. And it have all sorts of resources about it. And I think we talked about it when we talked about it with Kyle Courtney, or Kyle Courtney, too. I think it definitely means something that they're suing the Internet Archive and not suing the partner libraries who weren't ensuring that they're not circulating copies that they have opened to the Internet Archives. So, yeah. Yeah.

Yeah. Basically, I think you're right, Justin. I think the libraries aren't going to get sued because that's really bad PR, but it will definitely affect whether or not new CDL programs get up and going. Yeah, and this is also where librarians' tendency to be like teachers' pets is going to be a problem because they'll just preemptively comply with these rules and be like, well, we can't do it. It's like, the only thing that's going to stop you is if you literally get sued. And like the odds of you getting sued are just really, really low unless you're a massive CDL program. We have to be kind of. We have to be after all we're taking risk, just this was too high of a risk, maybe.

I think you can probably keep doing CDL, but you will have to convince your legal person at your university or your city that the risk is acceptable because it's very, very low. And so in that case, I don't think it will affect libraries, but, I mean, technically we did lose on CDL. This judge found that CDL doesn't exist and it needs to be legislated. On the other hand, that also means, if we're lucky, we could just get legislation through that modifies the Copyright Act to have CDL in it. Right, because it needs to be updated to accommodate, like, more digital shit anyway. Yeah. So I think the case also brought up.

Oh, it's just to say, so best case scenario is that we could get this legislated input into the Copyright Act, you think? Yeah, because then it wouldn't be up to the courts and you wouldn't have any chance of it being undone. And I don't see how implementation could get fucked up because it would literally just be a small section that says, like, libraries have the right to create digital facsimiles and materials and loan them on a controlled basis, maintaining an own-to-loan ratio. Like, the Copyright Act sections are actually very terse. They're not, like, super long. They're just very plain language. Yeah. Yeah, like listeners, especially you library school students, if you have not read the Copyright Act,

please go do so. It's actually not that hard. And especially read section 108. That's all the library stuff. And then all the fair use stuff, it fits on a PowerPoint slide. Section 107 is real, real short. Read just, they're not that, like, you don't need to have a JD to have some like basic understanding of what the Copy Ray Act is saying, how it gets interpreted and like put into like practice and stuff. Like, yeah, that's why we have lawyers. But. it's very plain language for a lot of it. It's just sometimes when you want to be loosey-goosey and interpret things, you know. Yeah, it has a lot of gray areas when it comes to like the four-factor test. Right. The law itself is pretty easy to read. Yeah. The gray areas exist to protect you and prevent you from liability to give you sort of like a cover.

Right. But it also means it's very hard to give you like, well, I can't be sure that you wouldn't lose in court. But the thing is with copyright infringement, there's no copyright police. Like, someone has to sue you, right? Yeah. So if you're a low target, you can basically just do copyright infringement. Right. They have to notice you.

Yeah. If you're a university, you can be like, well, we were doing this good faith. And it's like, yeah, well, as long as you're doing CDL in good faith and doing it properly, honestly, you know, the odds be getting sued are pretty low. They maybe don't lie to the end, everyone about how good you are doing it and then say, and then actually haven't been doing it correctly this whole time. And it fucks everyone over. Maybe don't do that.

IA. Don't be like the IA kids. I was, I was defending you. I was so like, right or die being like, yes, this is a moral good and I'm defending this even though Bruce or Kales

would prick. Jay, you're reminding me of that meme, the Tyra Banks. We were all rooting for you. We were rooting for you. I am just Tyro Banks right now. Be quiet, Brewster. I believe it was in the decision, but maybe it wasn't.

They did bring up kind of the e-book licensing laws that have been around and have been struck down because, so these are, these are the laws that were going around in Maryland and New York, where if a vendor sells an e-book that they must provide or license under reasonable terms to libraries, this got to. struck down under like supremacy clause stuff like this is copyright you can't force anyone to provide a license

that's uh you can't you can't do compulsory licenses like congress has to do that so again that's more or less we have to focus on like national ebook library bills but honestly codifying CDL would just be a huge win because then you would have for sale

for ebooks it's like if we have to rely on this system it's better to get the thing in the system because it's actually way hard to get stuff taken out of that system. Yeah. It gets a pain in the ass. It would be the first real ownership of digital stuff

because computers are copying machines. So everything is copied. That's why everything's licensed. You don't, you know, whenever someone's like, oh, you bought an e-book, you know what I licensed it. But even though there were places like Jay was talking about the sheet music stuff, they want to sell you a digital copy. But in the end, if you make a ton of copies of it,

that's a copyright problem. You still don't really digitally own it. So giving libraries or anyone the right to make a digital facsimile of a physical thing would be a pretty big win for everyone. It would just also, I think it would be a big target for major publishers and stuff, but I think there's a really strong case that, like, look, we just need to update this section so that libraries can do something more interesting and useful in the 21st century. And I think it would also work the other way around because, like I said,

a lot of like independent composers are selling their scores only digitally and then so libraries who can't do CDL are having to

print and bind them but that's a very murky gray area like legal area right now as in like is that copyright infringement because you are making a copy and then circulating that copy even if you weren't circulating the digital one you've still made a copy right

And so like I feel like if CDL were codified, this legal right of like, we have this thing, we're going to make a facsimile of it and we are going to loan it owned alone, you know, make sure they're not out at the same time or whatever. They could work in the reverse as well. Like if you, if something is only sold digitally and you want a physical version of it, having the right to then produce that physical version. Like we do when like, you know, because like you can't fucking buy a VCR anymore that libraries can like take VHS to. tapes and digitize them and put them under a DVD, like, that kind of stuff. Like, I feel like it would also protect digital to physical as, as well, which is, like, again, I don't know how big of a thing this is in other disciplines right now, but a music librarianship, like, this is the thing right now is like all these digital scores and stuff.

But it would also mean that, like, if there was this digital to digital controlled digital lending, so you buy an ebook and then lend to out. how many you buy. You just have to keep the receipt to prove that you bought it. And then you can put like three, four charges and say like, hey, you know, we're going to buy, you know, five copies of this. And that can actually work out for publishers because they won't have to maintain these crazy site licenses. They can be like, okay, the book is $19. Again, you go, okay, I'm going to buy 100 copies. Yeah. That just works out so much better for everyone.

Yeah. But the market. It would actually make it. It would probably make the market better. Yeah. So that's all there's to it. I don't need to drag it out. So like getting like CDL and stuff codify, like if we have to operate within the system, getting CDL codified and like stuff like that, that's a good thing in copyright law. Like if we're going to have copyright law, let's not make IP law more restrictive, but let's codify like CDL because that helps everyone in this case, including the authors, right?

This helps everyone. But, you know, like I said at the beginning, what the Internet Archive is doing is morally good. It is morally correct to make information. Like, I don't like enforcing digital scarcity. There's no fucking reason to accept these fake laws we've all made up and agreed to follow, right? And so I guess the Internet Archive doing this and then getting like struck down is kind of has a lot of bad consequences. And so what I guess I'm asking and then wanting people to think about is like, okay, we so. support piracy. Piracy is a moral good and in fact is becoming a moral necessity for a lot of things. So how do we support that? Like obviously on the individual level, it's fine, but like at bigger institutional levels, like, and we don't want to just like have to rely on SciHub or like we don't want these things to be monopolized either. So I guess how and when do we stick our necks out for people doing this kind of stuff when this has happened to the internet archive? I guess that's my question. Yeah, like when do you support an organization doing something more, like, legally dubious? Yeah.

I mean, there is like, I mean, there are definitely groups like the pirate party in different places. They're not as big as they used to be, but they've been sort of like an open source, free culture, anti-corporate personhood kind of thing. Mm-hmm. I've seen a lot of universities more or less, not in the United States, but I have seen some in other countries say like, hey, Elsevier won't negotiate with us. just so you know, SciHub exists. And just doing that and being like, so that there is like tacit support for something that is definitely infringing. But, you know, someone at the university was like, yeah, you know, we'll tell people how to use SaHub if you're not going to give us this license. So, I mean, you can definitely do that.

And I think it's definitely a threat you can make in negotiations and should. It's that like, look, we don't know how if people are going to start using SyHub if you cut us off or something like that. So aside from that, like, I don't. don't know what libraries could have done for internet archive that they weren't already doing. Because I know, like, you've said that we should kind of, like, cut them off at this point. I think at this point, it's too late and we're stuck with them. But because, like, this case is now going to get appealed and there's going to be another ruling. So, like, there's no stopping that.

But I think libraries giving them more support just seems like a waste of time. The thing is the CDL implementers group hasn't met recently. And so I can't get a read on what everyone is thinking about the Internet Archive, kind of like being in all those meetings and talking for a really long time about how unfair it was that they were. That was when I first got annoyed with them was when they were in those meetings and talking for like 15 minutes every time. Like it's how sad it is that they're getting sued.

It's like, I don't care. I want to see how people are implementing CDL so I can do it at work. Yeah, I feel like, you know, there's nothing we can do now except wait for it to go to the next judge. So there's nothing libraries need to do. But definitely, I think the partner libraries should definitely tell in an archive, hey, stop speaking on our behalf. Yeah.

That's what I mean by, like, cut them off. It should kind of be like, stop talking for us. Yeah. And distinguish library CDL from what Internet Archive did with all the sloppiness. Be like, now we're doing it for our patrons, for our copies, on a small scale, decentralized across all these places. Where taxpayer money has paid for all of the stuff and only those. taxpayers or students are the ones accessing it instead of the world. However, you've got to make the point.

Yeah. Right. Yeah. That's why you mean by cutting them off at this point. Yeah. Well, and I wonder how much of, like, obviously, I'm not involved in any, like, CDL in any way. And this is all speculative on my part. But, like, I wonder how much the Internet Archive with the partner libraries, like, we're not like other vendors, you know, when it's like libraries really need to be on, like, making sure that the things that were, the vendor contracts that we're signing are actually aligned

with how we want to be and like our values and stuff. So, and we're just selling out with the ebook licenses and all of that. But yeah, we have. We need to stick up for ourselves more. Yeah, we need to stick up. And that includes, that includes the Internet Archive. Like, I don't know. That's just speculation on my part. Maybe AI over, or IA. over promised to its partners. shit. Yeah. You know, like... Get your mean librarians to do negotiations, not being nice.

Just because they're a nonprofit doesn't mean they won't screw you over, right? Yeah, I mean, they are a vendor for their web archiving materials. They're not a vendor for CDL stuff, but I'm not... I don't really think they will become one. It doesn't seem to be like something they're trying to do. No, I think X Libris and then reshare are going to be the big ones there, because X Libris is getting like a module for it. in, you know, Amma Primo, Leganto, whatevero.

Like, there's going to be a CDL module in that. And then I know the thing that the Fenway Library Organization is looking at is something called reshare and, like, attaching that onto folio so that it's part of an ILS or LMS or what the fuck we want to call it as well. And I think reshare is, can also be used for like resource sharing, but using that as well for CDL, I think, is some of its big plans. Yeah. At this point, XLiebers has like three things that might turn into their CDL project.

Yeah. They've got like different modules that do. They have an e-reserves thing. They have Leganto and they have like another thing they're working on. Yeah, Springshare also has an e-reserves thing. I've never looked into it because I never was at a university that cared about e-reserves. Yeah. I know they, I know it exists, though, at least.

Anyway. Okay. I'm going to try and get this out quick while it's still topical. I hope this is helpful to people and so that people stop being annoying on places on the internet I like to waste time on. Yeah. Don't make me unfollow you. Yeah. Well, Jay, that's kind of high, high hopes.

Yeah. You can be annoying in other ways. Just, and I know I was a little annoying about this too. And that's before I learned about the thing. I'm just going to put you. Yeah. Your face transposed over Tyro Banks. Be quiet, Brewster K.L.

Title the episode, That Be Quiet. My mom would yell at me like this because she loved me. That is so cap, Jack. Good night.