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Internet Archive is in danger
(www.battleforlibraries.com)
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this post was submitted on 07 Jun 2024
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Privacy
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In this case, they absolutely did. They had a CDL in place specifically to comply with copyright law, and they willfully and intentionally disabled it.
The publishers also had arrangements with local libraries to expand their ebook selections. Most libraries have ebook and audiobook deals worked out with the publishers, and those were expanded during the lockdowns. Many of the partner libraries preferred those systems to the CDL because they served their citizens directly. A small town in Nebraska didn't have to worry about having a wait list of 3000 people ahead of the local citizen whose taxes had actually bought the license the Internet Archive wanted to borrow.
The Internet Archive held a press conference right before the ruling comparing the National Emergency Library to winter-library lands, but that's simply not accurate. The CDL they had in place before and after was inter-library loaning. The CDL was like setting up printing presses in the library and copying books for free and handing them out to anyone.
Under the existing CDL, they could have verified that partner libraries had stopped lending their phycical copies of the books and made more copies of the ebooks available for checkout instead of just making it unlimited and they'd have legally been fine, but they did not, and the publishers had every right to sue.
The publishes also waited until June to file suit: well-after most places had been re-opened for weeks.
IA does important work, but they absolutely broke the law here, and since they did it by intentionally removing the systems designed to ensure legitimate archival status and fair-use of copywritten works, they have pretty much zero defense. It wasn't a mistake or an oversight. And after reopening they kept doing it for weeks until they were sued and were able to magically restore the legal system the same day the lawsuit was filed.
You're using the publisher's arguments in your comment. If anybody's interested, here's the IA's counter-argument. It boils down to the fact publishers are challenging practices that used to be considered fair use... just because they can.
This decision has wide-reaching implications that will affect all libraries, not just the IA.
Ultimately we'll just have to see what the appeal decision will be.
In that counter argument they are essentially admitting that 99% of their content was distributed without the copyright holder's consent.
Was it fair use in the past to redistribute reprints/format-conversions of works without the copyright holders consent?
I agree that copyright law sucks.. but that's why it needs to change so it actually serves "the greater public good". The judiciary system is not the right place to advocate for that (they don't make the law, just interpret it), so I don't really think there's much hope in them winning this. Sadly.
Their counter-argument isn't a legal argument. They're saying they did it because they think the publishers aren't being fair.
And they're talking mostly about format-conversion, which isn't the problem here.
You can absolutely make format conversions to digital for archival purposes. What you cannot do is them make a bunch of copies and give them away for free simultaneous use. That is not fair use. That's 100% piracy.
The CDL was built specifically to ensure that only one digital copy was on loan for each owned copy of the material because the IA absolutely knew that was the law.