[Dylan16807]

> However, it's not fair use to copy material and redistribute it.

You mean permanent copies, right? Then the IA doesn't disagree. They just want to loan out one digital copy while the original is locked up, in an attempt to emulate not making copies as closely as possible in a digital world.

> Furthermore, the creator should be able to determine the format of the release of their work. If someone wants to alter their work, they must do so in a transformative manner and not pass it off as the creator's work.

> Someone who makes a book with formatting specific to say a PDF, could be unfairly reviewed or judged by readers who borrowed distributed copies that are formatted to epub, for example.

I can get behind forced marking in some circumstances, but shifting between digital and physical should fall under first sale doctrine and the author should not have control over it.

[tptacek]

It does not help the situation here that IA went to war with publishers in the US courts with a system that did not in fact enforce that invariant, but rather declared unilaterally that the pandemic justified them taking a single copy of a book and lending it an arbitrary number of times --- something cited in the opinion of the court, IIRC!

[Dylan16807]

It doesn't help. On the other hand the court doesn't seem to think the arbitrary lending makes a difference to copyright, does it? I was under the impression it's only mentioned as a knock against IA.

[tptacek]

This came up a bunch on the last thread we had about this. There's a saying among lawyers, "bad facts make bad law". Courts are going to render a verdict, usually, based on legal principles and with broad applicability. But they actual process they're going to use to make that decision is going to be heavily influenced by the facts of the case. So if you're making a run at a well-established feature of law --- say, "copyright law says you can't make copies of other people's stuff and distribute it without their permission" --- you want to go into that case with the absolute best facts you can possibly marshal. IA came to this case with a really bad fact pattern!

I think a lot of different people could have told them they were going to lose, and especially that they were going to lose the appeal after they lost in the lower court. But they have no accountability mechanism. It didn't cost them anything to push the case as far as they could go, despite that doing so meant that the predictable result of their case probably dooms CDL under any fact pattern anywhere in the country.

People are understandably grumpy.

[AnthonyMouse]

> There's a saying among lawyers, "bad facts make bad law".

One of the problems here is that there is a flaw in the legal system where if the law is unclear, there is nowhere you can go to request a definitive clarification. If you want to find out if you're allowed to do something, you first have to do it and only then find out if somebody takes you to court over it so the court can rule on whether you were allowed to.

Worse, they did CDL for a long time before COVID and nobody took them to court. To get a definitive answer you not only have to do it, somebody has to sue you. And they're not going to do that if they expect you to win, because that would cost them money to pay for lawyers only to set a precedent they don't like.

So in order to create the possibility of a precedent saying it's allowed, you have to push the envelope enough that your opponents think there's a good enough chance that you'll lose to take the risk of bringing you to court. That's preposterous and unreasonable, but it's how the system works.

[dragonwriter]

> Courts are going to render a verdict, usually, based on legal principles and with broad applicability.

Appellate courts might do that (though even the vast majority of appellate decisions are narrow and, even if technically precedential, lack broad applicability.) Trial courts, whose rulings aren't even binding precendent on the same court, much less any others, do not. Even applellate courts in cases where an issue is raised which seems to offer the possibility of a ruling with broad impact often don't.

> So if you're making a run at a well-established feature of law --- say, "copyright law says you can't make copies of other people's stuff and distribute it without their permission"

I would say that the precise bounds of fair use (which absolutely does allow, under current law, in some cases, making copies of other people's stuff and distributing it without permission) is exactly the opposite of a well-established feature of copyright law; fair use is an area where the statutory rules are fuzzy and the application of them to anything that isn't almost an identical fact pattern to one that there is a prior case providing binding precedent on is...murky, at best.

[Dylan16807]

Didn't they rope in enough libraries so they didn't actually overshoot on almost any book? The way they did that after the fact was cheeky but I don't think it's that bad of a fact pattern. Instead I think it was similarly doomed either way, and the real issue is that a lawsuit was triggered at all.

[AStonesThrow]

They can't lend anything to me, because I am still wearing my mask!

[mminer237]

The law has no concept of a "temporary copy". How is the Internet Archive supposed to enforce that? Government DRM?

[Dylan16807]

The law was written a long time ago and it needs some clarifications and updates.

Lots of temporary copies are already considered fair use. Every time you play a disc you make temporary copies, and nobody complains.

And if playing a CD can just use copyright and no "government DRM", then so can lending an ebook.

[LegionMammal978]

From the Copyright Act:

> "Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed.

So the version of the work traveling through the air is not in itself a phonorecord protected by copyright law: fair use is not even relevant for it. (However, copyright law does protect the phonorecord in the CD from being performed publicly.)

[Dylan16807]

I'm not talking about the sounds, I'm talking about the perfect digital copies in the RAM chips of the player.

And RAM is considered "fixed" by every interpretation I've ever seen.

[LegionMammal978]

Do CD players tend to keep any more than a few seconds' worth in memory? If not, you could easily argue that any given segment is too short to contain copyrightable expression. But fair use is a very particular concept about the ultimate purpose of producing a copy, which I don't think would apply to any scenario along these lines.

[Dylan16807]

Some CD players buffer a full minute or longer, and also samples have been considered copyright infringement even when they're a second long.

[tptacek]

Clearly no, and we have two opinions now from federal courts explaining why. Maybe they can appeal it to the Supreme Court and get a 3rd, taking this question off the table categorically for the next 30 years.

[Dylan16807]

> Clearly no

Please don't do this. I'm not talking about what the law is, I'm talking about what it can be. You are not responding to my argument.

[Phiwise_]

Your comment was in response to an argument about what the law is. This entire thread is about a court case, which deal with what the law is. You're in no position to accuse others of not responding on-topic.

[Dylan16807]

I didn't accuse tptacek of being off-topic, I accused him of a non sequitur.

[tptacek]

The law we're talking about does not in fact date back to player pianos or s's that look like f's; it's been continuously refined all the way into the 21st century. So I think it matters a great deal what it actually says now.

[Dylan16807]

> The law we're talking about does not in fact date back to player pianos or s's that look like f's; it's been continuously refined all the way into the 21st century.

It has been partially updated but not enough.

> So I think it matters a great deal what it actually says now.

I never implied otherwise.

A suggestion for change is by definition based on the current version.

[hollerith]

Your argument is naive and a little absurd.