A judge ruled against Internet Archive, a free online digital library, on Friday in a lawsuit filed by four top publishers who claimed the company was in violation of copyright laws. The publishers, Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House filed the lawsuit against Internet Archive in 2020, claiming the company had illegally scanned and uploaded 127 of their books for readers to download for free, detracting from their sales and the authors’ royalties.

U.S. District Court Judge John G. Koeltl ruled in favor of the publishing houses in saying that Internet Archive was making “derivative” works by transforming printed books into e-books and distributing them.

[…]

Koeltl’s decision was in part based on the law that libraries are required to pay publishers for continued use of their digital book copies and are only permitted to lend these digital copies a specified number of times, called controlled digital lending, as agreed by the publisher [not the writer!] before paying to renew its license.

[…]

However, according to the court ruling, Hachette and Penguin provide one or two-year terms to libraries, in which the eBook can be rented an unlimited number of times before the library has to purchase a new license. HarperCollins allows the library to circulate a digital copy 26 times before the license has to be renewed, while Wiley has continued to experiment with several subscription models.

[…]

The judge ruled that because Internet Archive was purchasing the book only once before scanning it and lending each digital copy an unlimited number of times, it is an infringement of copyright and “concerns the way libraries lend eBooks.

[…]

Source: ‘A Blow for Libraries’: Internet Archive Loses Copyright Infringement Lawsuit

The decision was “a blow to all libraries and the communities we serve,” argued Chris Freeland, the director of Open Libraries at the Internet Archive. In a blog post he argued the decision “impacts libraries across the U.S. who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.
The Verge adds that the judge rejected “fair use” arguments which had previously protected a 2014 digital book preservation project by Google Books and HathiTrust:

Koetl wrote that any “alleged benefits” from the Internet Archive’s library “cannot outweigh the market harm to the publishers,” declaring that “there is nothing transformative about [Internet Archive’s] copying and unauthorized lending,” and that copying these books doesn’t provide “criticism, commentary, or information about them.” He notes that the Google Books use was found “transformative” because it created a searchable database instead of simply publishing copies of books on the internet.

Their lending model works like this. They purchase a paper copy of the book, scan it to digital format, and then lend out the digital copy to one person at a time. Their argument is that this is no different than lending out the paper copy that they legally own to one person at a time. It is not as cut and dry as you make it out to be.

Source: Internet Archive Loses in Court. Judge Rules They Can’t Scan and Lend eBooks

Last Monday was the day of the oral arguments in the Big Publishers’ lawsuit against libraries in the form of the Internet Archive. As we noted mid-week, publishers won’t quit until libraries are dead. And they got one step closer to that goal on Friday, when Judge John Koetl wasted no time in rejecting every single one of the Internet Archive’s arguments.

The fact that the ruling came out on the Friday after the Monday oral arguments suggests pretty strongly that Judge Koetl had his mind made up pretty quickly and was ready to kill a library with little delay. Of course, as we noted just last Wednesday, whoever lost at this stage was going to appeal, and the really important stuff was absolutely going to happen at the 2nd Circuit appeals court. It’s just that now the Internet Archives, and a bunch of important copyright concepts, are already starting to be knocked down a few levels.

I’ve heard from multiple people claiming that of course the Internet Archive was going to lose, because it was scanning books (!!) and lending them out and how could that be legal? But, the answer, as we explained multiple times, is that every piece of this copyright puzzle had already been deemed legal.

And the Internet Archive didn’t just jump into this without any thought. Two of the most well known legal scholars regarding copyright and libraries, David Hansen and Kyle Courtney, had written a white paper detailing exactly how and why the approach the Internet Archive took with Controlled Digital Lending easily fit within the existing contours and precedents of copyright law.

But, as we and others have discussed for ages, in the copyright world, there’s a long history of courts ignoring what the law actually says and just coming up with some way to say something is infringement if it feels wrong to them. And that’s what happened here.

A key part of the ruling, as in a large percentage of cases that are about fair use, is looking at whether or not the use of the copy is “transformative.” Judge Koetl is 100% positive it is not transformative.

There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit.7 IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them. See 17 U.S.C. § 107. IA’s ebooks do not “add[] something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.” Campbell, 510 U.S. at 579. IA simply scans the Works in Suit to become ebooks and lends them to users of its Website for free. But a copyright holder holds the “exclusive[] right” to prepare, display, and distribute “derivative works based upon the copyrighted work.”

But… there’s a lot more to “transformative” use than simply adding something new or altering the meaning. In many cases, fair use is found in cases where you’re copying the exact same content, but for a different purpose, and the Internet Archive’s usage here seems pretty clearly transformative in that it’s changing the way the book can be consumed to make it easier for libraries to lend it out and patrons to read it. That is, the “transformation” is in the way the book can be lent, not the content of the book.

I know many people find this strange (and the judge did here as well) saying things like “but it’s the whole work.” Or “the use is the same because it’s still just reading the book.” But the Supreme Court already said, quite clearly, that such situations can be fair use, such as in the Sony v. Universal case that decided VCRs were legal, and that time shifting TV shows was clear fair use. In that ruling, they even cite Congress noting that “making a copy of a copyright work for… convenience” can be considered fair use.

Unfortunately, Judge Koetl effectively chops away a huge part of the Sony ruling in insisting that this is somehow different.

But Sony is plainly inapposite. IA is not comparable to the parties in Sony — either to Sony, the alleged contributory copyright infringer, or to the home viewers who used the Betamax machine for the noncommercial, nonprofit activity of watching television programs at home. Unlike Sony, which only sold the machines, IA scans a massive number of copies of books and makes them available to patrons rather than purchasing ebook licenses from the Publishers. IA is also unlike the home viewers in Sony, who engaged in the “noncommercial, nonprofit activity” of viewing at a more convenient time television programs that they had the right to view for free at the time they were originally broadcast. 464 U.S. at 449. The home viewers were not accused of making their television programs available to the general public. Although IA has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse.

But note what the Judge did here. Rather than rely on the text of what the Supreme Court actually said in Sony, he insists that he won’t apply the rules of Sony because the parties are different. But if the basic concepts and actions are covered by the Sony ruling, it seems silly to ignore them here as the judge did.

And the differences highlighted by the court here have no bearing on the actual issues and the specifics of fair use and the law. I mean, first of all, the fact that Koetl claims that the Internet Archive is not engaged in “noncommercial, nonprofit activity” is just weird. The Internet Archive is absolutely engaged in noncommerical, nonprofit activity.

The other distinctions are meaningless as well. No, IA is not building devices for people to buy, but in many ways IA’s position here should be seen as stronger than Sony’s because Sony actually was a commercial operation, and IA is literally acting as a library, increasing the convenience for its patrons, and doing so in a manner that is identical to lending out physical books. Sony created a machine, Betamax, that copied TV shows and allowed those who bought those machines to watch the show at a more convenient time. IA created a machine that copies books, and allows library patrons to access those books in a more convenient way.

Also, the Betamax (and VCR) were just as “available to the general public” as the Internet Archive is. The idea that they are substantially different is just… weird. And strikes me as pretty clearly wrong.

There’s another precedential oddity in the ruling. It relies pretty heavily on the somewhat terrible fair use ruling in the 2nd Circuit in the Warhol Foundation v. Goldsmith case. That case was so terrible that we (at the Copia Institute) weighed in with the Supreme Court to let them know how problematic it was, and the Supreme Court is still sitting on a decision in that case.

Which means the Supreme Court is soon to rule on it, and that could very much change or obliterate the case that Judge Koetl leans on heavily for his ruling.

Here, Judge Koetl repeatedly goes back to the Warhol well to make various arguments, especially around the question of the fourth fair use factor: the effect on the market. To me, this clearly weighs towards fair use, because it’s no different than a regular library. Libraries are allowed to buy (or receive donated) books and lend them out. That’s all the Open Library does here. So to argue there’s a negative impact on the market, the publishers rely on the fact that they’ve been able to twist and bend copyright law so much that they’ve created a new, extortionate market in ebook “licenses,” and then play all sorts of games to force people to buy the books rather than check them out of the library.

Judge Koetl seems particularly worried about how much damage this could do this artificially inflated market:

It is equally clear that if IA’s conduct “becomes widespread, it will adversely affect the potential market for the” Works in Suit. Andy Warhol Found., 11 F.4th at 48. IA could expand the Open Libraries project far beyond the current contributing partners, allowing new partners to contribute many more concurrent copies of the Works in Suit to increase the loan count. New organizations like IA also could emerge to perform similar functions, further diverting potential readers and libraries from accessing authorized library ebooks from the Publishers. This plainly risks expanded future displacement of the Publishers’ potential revenues.

But go back and read that paragraph again, and replace the key words to read that if libraries become widespread, it will adversely affect the potential market for buying books in bookstores… because libraries would be “diverting potential readers” from purchasing physical books, which “plainly risks expanded future displacement of the Publishers’ potential revenues.”

Again, the argument here is effectively that libraries themselves shouldn’t be allowed. And that seems like a problem?

Koetl also falls into the ridiculous trap of saying that “you can’t compete with free” and that libraries will favor CDL-scanned books over licensed ones:

An accused infringer usurps an existing market “where the infringer’s target audience and the nature of the infringing content is the same as the original.” Cariou, 714 F.3d at 709; see also Andy Warhol Found., 11 F.4th at 50. That is the case here. For libraries that are entitled to partner with IA because they own print copies of books in IA’s collection, it is patently more desirable to offer IA’s bootleg ebooks than to pay for authorized ebook licenses. To state the obvious, “[i]t is difficult to compete with a product offered for free.” Sony BMG Music Ent. v. Tenenbaum, 672 F. Supp. 2d 217, 231 (D. Mass. 2009).

Except that’s literally wrong. The licensed ebooks have many features that the scanned ones don’t. And many people (myself included!) prefer to check out licensed ebooks from our local libraries rather than the CDL ones, because they’re more readable. My own library offers the ability to check out books from either one, and defaults to recommending the licensed ebooks, because they’re a better customer experience, which is how tons of products “compete with free” all the time.

I mean, not to be simplistic here, but the bottled water business in the US is an over $90 billion market for something most people can get for free (or effectively free) from the tap. That’s three times the size of the book publishing market. So, uh, maybe don’t say “it’s difficult to compete with free.” Other industries do it just fine. The publishers are just being lazy.

Besides, based on this interpretation of Warhol, basically anyone can destroy fair use by simply making up some new, crazy, ridiculously priced, highly restrictive license that covers the same space as the fair use alternative, and claim that the alternative destroys the “market” for this ridiculous license. That can’t be how fair use works.

Anyway, one hopes first that the Supreme Court rejects the terrible 2nd Circuit ruling in the Warhol Foundation case, and that this in turn forces Judge Koetl to reconsider his argument. But given the pretzel he twisted himself into to ignore the Betamax case, it seems likely he’d still find against libraries like the Internet Archive.

Given that, it’s going to be important that the 2nd Circuit get this one right. As the Internet Archive’s Brewster Kahle said in a statement on the ruling:

“Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.

This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”

What happens next is going to be critical to the future of copyright online. Already people have pointed out how some of the verbiage in this ruling could have wide reaching impact on questions about copyright in generative AI products or many other kinds of fair use cases.

One hopes that the panel on the 2nd Circuit doesn’t breezily dismiss these issues like Judge Koetl did.

Source: Publishers Get One Step Closer To Killing Libraries

This money grab by publishers is disgusting, for more information and articles I have referenced them here

[…]

Nike’s argument is that Max 1 is too similar to its longtime “Air Max” shoe line, including other “Max Force 1” products and other variations that include similar keywords. Verstappen had named his line of products after himself and his current racing number but encountered legal trouble soon after launch.

The Benelux Office for Intellectual Property—essentially The Netherlands’ trademark office—issued a report that Verstappen’s Max 1 brand carried a “likelihood of confusion” and posed a risk of consumers believing Max 1 products were associated with Nike.

Nike went as far as claiming that some designs in the Max 1 catalog were too similar to the apparel giant’s, while also alleging that the word MAX was prominently used and likened to Nike apparel. For these reasons, Verstappen was reportedly fined approximately $1,100 according to Express.

[…]

Source: Nike Blocks F1 Champ Max Verstappen’s ‘Max 1’ Clothing Brand

1. What about Pepsi Max

2. What about the name Max being much much older than Nike (so prior use)

3. What about people going around using the word max as in eg ‘that’s the max speed’ or ‘that’s the max that will go in’?

3. What the actual fuck, copyright.

On Monday four of the largest book publishers asked a New York court to grant summary judgment in a copyright lawsuit seeking to shut down the Internet Archive’s online library and hold the non-profit organization liable for damages.

The lawsuit was filed back June 1, 2020, by the Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House. In the complaint [PDF], the publishers ask for an injunction that orders “all unlawful copies be destroyed” in the online archive.

The central question in the case, as summarized during oral arguments by Judge John Koeltl, is: does a library have the right to make a copy of a book that it otherwise owns and then lend the ebook it has made without a license from the publisher to patrons of the library?

Publishers object to the Internet Archive’s efforts to scan printed books and make digital copies available online to readers without buying a license from the publisher. The Internet Archive has filed its own motion for summary judgment to have the case dismissed.

The Internet Archive (IA) began its book scanning project back in 2006 and by 2011 started lending out digital copies. It did so, however, in a way that maintained the limitation imposed by physical book ownership.

This activity is fundamentally the same as traditional library lending and poses no new harm to authors or the publishing industry

Its Controlled Digital Lending (CDL) initiative allows only one person to check out the digital copy of each scanned physical book. The idea is that the purchased physical book is being lent in digital form but no extra copies are being lent. IA presently offers 1.3 million books to the public in digital form.

“This activity is fundamentally the same as traditional library lending and poses no new harm to authors or the publishing industry,” IA argued in answer [PDF] to the publisher’s complaint.

“Libraries have collectively paid publishers billions of dollars for the books in their print collections and are investing enormous resources in digitization in order to preserve those texts. CDL helps them take the next step by making sure the public can make full use of the books that libraries have bought.”

The publishers, however, want libraries to pay for ebooks in addition to the physical books they have purchased already. And they claim they have lost millions in revenue, though IA insists there’s no evidence of the presumptive losses.

“Brewster Kahle, Internet Archive’s founder and funder, is on a mission to make all knowledge free. And his goal is to circulate ebooks to billions of people by transforming all library collections from analog to digital,” said Elizabeth McNamara, attorney for the publishers, during Monday’s hearing.

“But IA does not want to pay authors or publishers to realize this grand scheme and they argue it can be excused from paying the customary fees because what they’re doing is in the public interest.”

Kahle in a statement denounced the publishers’ demands. “Here’s what’s at stake in this case: hundreds of libraries contributed millions of books to the Internet Archive for preservation in addition to those books we have purchased,” he said.

“Thousands of donors provided the funds to digitize them.

“The publishers are now demanding that those millions of digitized books, not only be made inaccessible, but be destroyed. This is horrendous. Let me say it again – the publishers are demanding that millions of digitized books be destroyed.

“And if they succeed in destroying our books or even making many of them inaccessible, there will be a chilling effect on the hundreds of other libraries that lend digitized books as we do.”

[…]

Source: Big Four publishers move to crush the Internet Archive • The Register

Back in September 2021 Techdirt covered an outrageous legal attack by Sony Music on Quad9, a free, recursive, anycast DNS platform. Quad9 is part of the Internet’s plumbing: it converts domain names to numerical IP addresses. It is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization. Sony Music says that Quad9 is implicated in alleged copyright infringement on the sites it resolves. That’s clearly ridiculous, but unfortunately the Regional Court of Hamburg agreed with Sony Music’s argument, and issued an interim injunction against Quad9. The German Society for Civil Rights (Gesellschaft für Freiheitsrechte e.V. or “GFF”) summarizes the court’s thinking:

In its interim injunction the Regional Court of Hamburg asserts a claim against Quad9 based on the principles of the German legal concept of “Stoererhaftung” (interferer liability), on the grounds that Quad9 makes a contribution to a copyright infringement that gives rise to liability, in that Quad9 resolves the domain name of website A into the associated IP address. The German interferer liability has been criticized for years because of its excessive application to Internet cases. German lawmakers explicitly abolished interferer liability for access providers with the 2017 amendment to the German Telemedia Act (TMG), primarily to protect WIFI operators from being held liable for costs as interferers.

As that indicates, this is a case of a law that is a poor fit for modern technology. Just as the liability no longer applies to WIFI operators, who are simply providing Internet access, so the German law should also not catch DNS resolvers like Quad9. The GFF post notes that Quad9 has appealed to the Hamburg Higher Regional Court against the lower court’s decision. Unfortunately, another regional court has just handed down a similar ruling against the company, reported here by Heise Online (translation by DeepL):

the Leipzig Regional Court has sentenced the Zurich-based DNS service Quad9. On pain of an administrative fine of up to 250,000 euros or up to 2 years’ imprisonment, the small resolver operator was prohibited from translating two related domains into the corresponding IP addresses. Via these domains, users can find the tracks of a Sony music album offered via Shareplace.org.

The GFF has already announced that it will be appealing along with Quad9 to the Dresden Higher Regional Court against this new ruling. It says that the Leipzig Regional Court has made “a glaring error of judgment”, and explains:

If one follows this reasoning, the copyright liability of completely neutral infrastructure services like Quad9 would be even stricter than that of social networks, which fall under the infamous Article 17 of the EU Copyright Directive,” criticizes Felix Reda, head of the Control © project of the Society for Civil Rights. “The [EU] Digital Services Act makes it unequivocally clear that the liability rules for Internet access providers apply to DNS services. We are confident that this misinterpretation of European and German legal principles will be overturned by the Court of Appeals.”

Let’s hope so. If it isn’t, we can expect companies providing the Internet’s basic infrastructure in the EU to be bombarded with demands from the copyright industry and others for domains to be excluded from DNS resolution. The likely result is that perfectly legal sites and their holdings will be ghosted by DNS companies, which will prefer to err on the side of caution rather than risk becoming the next Quad9.

Source: Another German Court Says The DNS Service Quad9 Is Implicated In Any Copyright Infringement At The Domains It Resolves | Techdirt

There are some incredibly stupid judges and lawyers out there

Recently, Walled Culture mentioned the problem of orphan works. These are creations, typically books, that are still covered by copyright, but unavailable because the original publisher or distributor has gone out of business, or simply isn’t interested in keeping them in circulation. The problem is that without any obvious point of contact, it’s not possible to ask permission to re-publish or re-use it in some way.

It turns out that there is another serious issue, related to that of orphan works. It has been revealed by the New York Public Library, drawing on work carried out as a collaboration between the Internet Archive and the US Copyright Office. According to a report on the Vice Web site:

the New York Public Library (NYPL) has been reviewing the U.S. Copyright Office’s official registration and renewals records for creative works whose copyrights haven’t been renewed, and have thus been overlooked as part of the public domain.

The books in question were published between 1923 and 1964, before changes to U.S. copyright law removed the requirement for rights holders to renew their copyrights. According to Greg Cram, associate general counsel and director of information policy at NYPL, an initial overview of books published in that period shows that around 65 to 75 percent of rights holders opted not to renew their copyrights.

Since most people today will naturally assume that a book published between 1923 and 1964 is still in copyright, it is unlikely anyone has ever tried to re-publish or re-use material from this period. But this new research shows that the majority of these works are, in fact, already in the public domain, and therefore freely available for anyone to use as they wish.

That’s a good demonstration of how the dead hand of copyright stifles fresh creativity from today’s writers, artists, musicians and film-makers. They might have drawn on all these works as a stimulus for their own creativity, but held back because they have been brainwashed by the copyright industry into thinking that everything is in copyright for inordinate lengths of time. As a result, huge numbers of books that are freely available according to the law remain locked up with a kind of phantom copyright that exists only in people’s minds, infected as they are with copyright maximalist propaganda.

The other important lesson to be drawn from this work by the NYPL is that given the choice, the majority of authors didn’t bother renewing their copyrights, presumably because they didn’t feel they needed to. That makes today’s automatic imposition of exaggeratedly-long copyright terms not just unnecessary but also harmful in terms of the potential new works, based on public domain materials, that have been lost as a result of this continuing over-protection.

Source: When Given The Choice, Most Authors Reject Excessively Long Copyright Terms | Techdirt