[derefr]

I believe their stance on DRM is something like:

• We (archive.org) can choose to either take in these DRMed works, archive them, and publish them online for public consumption (with their DRM intact); or we can refuse the DRMed works at the door, and thus have them unavailable for public consumption, also leaving them unpreserved; or we can archive the DRMed works, but just not publish them (again leaving them unavailable to the public.) The one thing we can't do, legally, is to just ignore the wishes of the rightsholders and put up a DRM-less version of the content for public consumption. The rights-holders are still out there to sue us. So we have to pick one of the other three options.

• One day, the rights will expire or the rights holder will disappear, and the work will enter the public domain.

• If we had earlier rejected even archiving the work because of its DRM (from some principled moral stance, as you seem to be suggesting), then at the time the work enters the public domain, we won't have a copy, and would have to then acquire one. It might be impossible to acquire a copy to preserve at that point.

• So, it’s better to acquire a copy now, under license; and then just crack the work out of its DRM later once the work becomes abandonware. (As the Archive.org staff have proven happy to do and/or support, with e.g. 4am’s work on the Apple II software archive.)

• Plus, even if we did wait to acquire the work after its rights lapsed, we would likely have to crack it anyway. Rightsholders that go to the trouble to re-release their own works without DRM are pretty rare. Some rightsholders are so lazy that, in “anniversary” re-releases of their products, they use the community’s cracked copy! So it’s not like we’re making more work for ourselves by choosing to take in DRMed works and then crack them eventually. It’s just how it has to go, to ever archive these works at all. The likelihood of ever just "coming across" a non-DRMed version of the work at some point in the future is practically nil. (It would be like hoping that if you left an aged painting on the market long enough, it would just de-varnish and repair itself.)

• And, of course, we can start on the DRM-cracking process as soon as we get the work, and keep the de-DRMed version as the canonical version to do preservation work against, as long as that’s not the version we make visible to the public (until the work becomes abandonware.) Museums and libraries have many works in “private archives”, and those archives still hold value to the public: academics can usually access them for studies, for example, as this explicitly falls under Fair Use. But more importantly, the private preservation of works that can't be preserved in public, ensures that they're preserved at all.

I hope that makes it clear why either the first or the third options (give the public the DRMed version; or preserve the DRMed version but don't publish it) are better than the "refuse DRMed content at the door" approach. Which of those other two options you favor is up to you. Personally I'd rather the public have some access to this rights-bound content rather than none.

[org3432]

The problem is these work owners are using archive.org to play both sides of the argument, even worse consider the Tibetan Buddhist Resource Centern they digitized works they didn’t author, don’t own any rights to for the works that are 100s of years old, and then put them up on Archive.org under DRM. How is that in any way ethical to take someone’s work and do that?

https://archive.org/details/buddhist-digital-resource-center...

[derefr]

Are you sure they don't own the rights?

When you create a "derivative work" of a work under copyright, you're creating a new work that "samples" the original, and then asserting your own copyright to it—that's why you need a license from the rightsholder in the first place, to allow you to claim those IP rights on the derivative work.

In the case of a public-domain work, if you create a "derivative work" from it, you own the IP of that derivative work, 100%. The public-domain parts that you sampled aren't still public domain just because they're copied word-for-word into your work. (I mean, the original work itself is still PD, but the sample of it in your derivative work isn't. It's a "color of your bits" thing[1].) "Public Domain" isn't an infectious copyleft license. You can "fork" and "make proprietary" a PD work, and that's 100% allowed.

Now, I don't know enough about the Buddhist texts in question to say whether their presentation of them here qualifies as a "derivative work"—but usually even just translating a work makes it a derivative, so, if the TBRC were the ones that translated these texts to English? They own 'em.

(If you want a public version, do the same thing FOSS communities do when a FOSS project is forked into a proprietary product: walk back to the last open branch-point of the source, and make your own open fork. In this case: translate the texts yourself!)

[1] https://ansuz.sooke.bc.ca/entry/23

---

Also, there might be a more interesting consideration at play in this particular case: if a work is never published, then AFAIK, it never enters copyright; its copyright "clock" only begins when someone publishes it. So e.g. the diary of Anne Frank doesn't have a copyright year of 1945, but rather 1947—the year it was found and published. Until then, the work is a "manuscript", equivalent in IP rights status to a draft laying on a writer's desk destined for a publisher.

You can think of such a manuscript as a secret root node in a "derivative work" tree: the author creates work A [the manuscript], the publisher derives work B [the published book], the author assigns work-A derivative-work rights to the publisher, and then also [usually] relinquishes all rights to work A. Because of this, the copyright clock is relative to work B, not work A. If copyright stayed attached to manuscripts, you could run out the copyright [in a pre-Disney copyright regime] by just spending 30 years writing a book!

[0815test]

> Also, there might be a more interesting consideration at play in this particular case: if a work is never published, then AFAIK, it never enters copyright

This isn't really true in the U.S. AFAICT - unpublished works do enter the public domain, 120 years after creation. It is true elsewhere, e.g. in Europe, but the standard for publication is lower than you might expect; if one can argue that the work wasn't genuinely private to the author (e.g. copies were made, it was used for public performances, etc.) that's enough to consider it "published".

[org3432]

For the Buddhist texts, how could they own the rights to works written hundreds of years ago? They're simply digitizing the work, no translation. Here's an example: https://archive.org/details/bdrc-W1FPL194/page/n7

[derefr]

If the works, before their digitization, only existed in a private collection at a particular Buddhist temple, then their copyright clock wouldn't have kicked off. It would start the moment that the works entered the public sphere in some way. If that happened because of the digitization, then the digitization is under copyright. In this case, the original work is the "manuscript", and they're the "publisher."

[org3432]

Obviously at the time the texts were written, they were in circulation, but it predates modern copyright law. So maybe there's a loophole in the law they're exploiting, but regardless it's unethical, and Archive.org has the power to not accept works under those circumstances.

[benj111]

"the diary of Anne Frank"

A poor example, or interesting example depending on how you want to look at it.

https://www.theguardian.com/books/2016/jan/18/anne-franks-di...

[0815test]

> but we can’t legally archive it without DRM

They definitely can - they're an official archive. They can't have people looking at it online while the item is in copyright without putting some reasonable safeguards in, but that's not the same thing as not being allowed to archive it.

[derefr]

Right, sorry, let me edit that. (I made it clear in a later paragraph but that one does read funny.)