[HN Gopher] How to participate in Monday's oral arguments re: In...
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How to participate in Monday's oral arguments re: Internet Archive
Author : gigama
Score : 183 points
Date : 2023-03-18 08:46 UTC (14 hours ago)
(HTM) web link (blog.archive.org)
(TXT) w3m dump (blog.archive.org)
| SamoyedFurFluff wrote:
| Does anyone know what the legal basis was for uncontrolled online
| Lending was in the first place that caused this mess? I don't
| understand why IA is continuing to double down that this was
| legitimate behavior.
| ghaff wrote:
| There isn't even a legal basis for "controlled" online lending
| (or indeed much of what the IA does) But they've mostly always
| managed to keep things sufficiently non-provocative that it
| hasn't been a problem.
| boomboomsubban wrote:
| Their justification was that the lockdown removed far more
| copies of the books from public library circulation than were
| ever checked out from the IA library. Something their checkout
| records easily confirm is true.
|
| However this lawsuit isn't really about the lockdown period,
| it's about CDL as a whole.
| sp332 wrote:
| They joined up with a specific group of other libraries, so
| they're not just arguing in general that circulation was
| down, but that there were enough copies of books in the group
| to cover the online lending.
| boomboomsubban wrote:
| That is how their general CDL works, but for the pandemic
| they removed the restrictions because libraries they did
| not have a partnership with were closed.
|
| The brief says this, but it's sort of confusing as it's
| blended in with discussing their general policy.
| politician wrote:
| I wonder how much of the LLM training content came from IA.
| ronsor wrote:
| I wonder what an LLM trained on the entire Wayback Machine
| would be like
| AlbertCory wrote:
| Without taking a position on the legal arguments:
|
| "How to participate in Monday's oral arguments" is a deeply
| offensive thing to say. Once something reaches SCOTUS, it's
| strictly about matters of law. It's not a question of the merits
| or whether you like IA or not, and rooting is definitely
| inappropriate.
| eynsham wrote:
| > SCOTUS
|
| '...the Southern District of New York will hear...'
|
| > question of merits whether you like IA or not
|
| Whether the court 'likes IA or not' may be a relevant question
| in respect of public policy considerations.
|
| > rooting is definitely inappropriate
|
| First, participating (well IA really mean listening which is
| even weaker) does not amount to rooting. Second, there's
| nothing wrong with having a view on what the judgment should
| be, unless writing an article in a law journal disputing a
| judgment would be 'inappropriate'.
| AlbertCory wrote:
| Days until someone does an audience meter like this during a
| live SCOTUS debate: I give it 14.
|
| https://www.imediaethics.org/its-entertainment-not-polling/
|
| We have a rule of law, not a mobocracy.
| ClumsyPilot wrote:
| This is judicially illiterate:
|
| "Common law refers to laws that are based on the customs and
| principles of society, which are used in court case decisions
| in situations not covered by civil law statutes."
|
| Your post appears oblivious to the distinction between common
| law and civil law systems, to the role societal customs play
| when interpreting the law, and to the role SCOTUS plays in the
| judicial machine
| AlbertCory wrote:
| Your post appears oblivious to the distinction between a
| question of fact and a question of law. You, in fact, are
| judicially illiterate.
|
| I don't care how it's done in France. This is all about the
| US. An appellate court here deals only with questions of law.
| "Societal customs" may have created our system, but that's
| the system we have.
| ClumsyPilot wrote:
| I make no secret of the fact that I am judicially
| illiterate, and I can see that so are you.
|
| You can read any of the famous dissenting opiniona of a
| suppreme court justice, and see that they highly consider
| 'how will society be affected if we choose A vs B'. Thats
| is not a matter of law.
|
| Furthermore, there are constant argument about how much
| legislaring from the bench supreme court should be doing.
| And about the fact that lawmakers are sleeping on the job
| forces SC to do so.
|
| Lartly, supreme court unding their own decision on
| abortion, the law hasn't changed.
| sqs wrote:
| Why is it deeply offensive? "Participate" here just means to
| follow, kind of like a Steve Jobs keynote liveblog.
|
| "Rooting" for one side of a legal case is absolutely
| appropriate for a defendant (or plaintiff) in our adversarial
| legal system. A defendant with a weak legal case but a strong
| public policy argument /needs/ to rally public support for
| their cause, so that if/when the court rules against them, they
| can push for the law to change.
| AlbertCory wrote:
| "participate" will very shortly mean "pushing an up- or down-
| arrow for every judge's question, and every counsel's
| answer."
|
| Oral arguments are not a HN posting.
| stametseater wrote:
| It may be wrong, but it shouldn't "deeply offend" you.
| You're taking this way too personally.
| [deleted]
| photochemsyn wrote:
| Good background here:
|
| https://slate.com/technology/2022/09/internet-archive-nation...
|
| I have this suspicion that the college textbook publishers in
| particular want to block CDL.
| MagicMoonlight wrote:
| Why do companies always sue the goodies as if that's somehow
| going to save their failing business.
|
| Spoiler: children are morons now. The book industry is dead.
| Their parents can barely read so they sure as hell aren't going
| to teach their children to. Everything is iPads. Suing random
| people won't change that. Books will live on, but as a niche
| product rather than a major industry.
| mistrial9 wrote:
| so, no. fortunately the last five hundred years of printing is
| not subject to a binary declaration of ALIVE|DEAD.. I will
| agree it is a SPOILER to say it like that, like, go ahead SPOIL
| my day !
| jl6 wrote:
| As a strong supporter of the Internet Archive's primary mission,
| I am saddened to say that the prosecution appears to have a
| strong case here. Controlled Digital Lending is a controversial
| legal theory, not something that has any clear statutory basis.
| The IA must now hope for some creative judicial interpretation to
| save them.
|
| It's doubly frustrating because I think the publishers would have
| let the IA fly under the radar had they stuck to lending on a
| strictly one-digital-loan for one-physical-copy basis. The
| National Emergency Library was a serious lapse of judgement - a
| moment of madness amongst a backdrop of widespread Covid madness.
| They poked the hornet's nest. IMHO they should have immediately
| apologised, leant into it being an honest mistake during a unique
| historical event, and come to some minor financial settlement.
| Instead, they and the EFF are doubling down and risk being
| flattened with a severe bill for compensation.
|
| I absolutely would support legislation to properly recognize CDL
| as a lawful function of libraries. Instead, all our hopes are
| pinned on the judicial branch doing the job of the legislative
| branch.
|
| P.S. Donate to the IA here: https://archive.org/donate/
| dandellion wrote:
| I used to donate to them every year, but I stopped when they
| did this stunt because I was afraid any money I donated now
| would go to pay for lawyers in a lost cause that I don't
| believe in. It pains me deeply in my heart because I think the
| Wayback Machine is a great and noble cause, and I would like to
| keep donating to it, but I don't want to contribute to what I
| see as a pointless crusade against copyright at the same time.
| mistrial9 wrote:
| > is a controversial legal theory, not something that has any
| clear statutory basis
|
| let the court decide that, you are essentially pronouncing
| judgement. Maybe "internet" or "digital" has changed the
| situation?
|
| The post asked people to support IA
| kmeisthax wrote:
| Digital changed the situation, for the worse. In digital
| there is no first-sale rights, because bits cannot be sold,
| only licensed. This was decided a decade ago in _exactly the
| same court the IA is being sued in_ [0]. The only way they
| could decide in favor of IA would be to make a very narrow
| ruling (e.g. 'libraries are special' or 'the DRM makes it
| OK') or go full judicial activist in ways our extremely
| conservative SCOTUS would not tolerate.
|
| The reason why libraries are even allowed to exist in the
| first place is because physicality allows you to do things
| with books that are not "copying" them. _Everything_ you do
| to a digital file is covered by copyright. When you "move" a
| file from one computer to another, you actually copy and
| delete it. When you "read" a file, you copy it from one
| storage medium to another[1]. If we want digital first sale
| then we have to fatally wound the existing copyright system.
|
| I would absolutely _love_ for the IA to be able to roll back
| this madness even a little, of course. I don 't see that
| happening. They will put up a good fight, and the judge will
| roadkill them for the trouble.
|
| [0] https://en.wikipedia.org/wiki/Capitol_Records,_LLC_v._ReD
| igi....
|
| [1] https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_C
| omp....
|
| Yes, this is _that_ court case. The one that says "RAM is
| storage and loading programs into it is infringement".
| causality0 wrote:
| The IA is not a religion. We love them dearly but we're still
| going to call them out when they do something that's
| blatantly, provocatively illegal, and we're sure as shit not
| going to support them when they lie about what they did.
| Especially when everyone was there when they did it and were
| screaming "oh my God, please do not do this idiotic thing,
| they are going to smash you like a bug because this is
| obviously not even hypothetically legal."
| busterarm wrote:
| I was sad to see the EFF jump off a cliff trying to keep
| the Register of Copyrights unaccountable to the public and
| I was sadder to see IA jump off a cliff with this
| boneheaded move.
|
| Some actions are just catastrophically stupid, even when
| viewed from orbit.
| causality0 wrote:
| What I want to know is who was behind it. "You can't
| drive to the library therefore copyright is suspended" is
| a feat of such mindbending idiocy it had to be driven by
| a single powerful individual or a small group. I want to
| know who, because now there's somebody in the IA
| management that nobody should ever trust again, and until
| that info comes out the entire organization is suspect.
| Can you depend on them when they might decide to play
| legal Russian roulette at any moment?
| stametseater wrote:
| > _What I want to know is who was behind it. "You can't
| drive to the library therefore copyright is suspended" is
| a feat of such mindbending idiocy it had to be driven by
| a single powerful individual or a small group._
|
| Don't underestimate echo chambers. In this case there
| were at least two echo chambers at play. The first being
| IA team itself, generally all being on the same
| wavelength as transgressive mavericks accustomed to
| pushing the bounds of copyright law. The second was much
| broader, mainstream society itself panicking about Covid,
| creating a zeitgeist of flaunting the rules to _do
| something_ about Covid.
|
| I would be surprised if any part of the IA org pushed
| back on this idea.
| ghaff wrote:
| Very little of what the IA does is strictly kosher under
| current law more or less anywhere in the world. They've mostly
| gotten away with it because, for example, they've mirrored
| websites that the owners put out in public and generally
| respect even retroactive requests to take them down. And, as
| you say, lending out 1 digital for 1 physical is reasonable
| enough that it's easy enough to believe publishers would
| overlook.
|
| (And, yes, they're a library/archive but that basically means
| nada in the digital world.)
| lightedman wrote:
| "Controlled Digital Lending is a controversial legal theory"
|
| DiVX might like a word with you.
| tssva wrote:
| > I am saddened to say that the prosecution appears to have a
| strong case here.
|
| This is a civil case so plaintiff not prosecution. This comment
| made me double check that there wasn't an associated criminal
| case I was unaware of.
| ta20230318 wrote:
| While you are correct on the tactical level, with this I do not
| agree:
|
| > The National Emergency Library was a serious lapse of
| judgement - a moment of madness amongst a backdrop of
| widespread Covid madness.
|
| NO! It was a moment of sanity prompted by an exceptional
| situation in an absolutely insane world, a world that pretends
| to value property yet undermines property using IP. It is IP
| that is the real madness. It is IP that is used to suck every
| drop of life out of culture the same way Exxon sucks oil out of
| the ground. And it is IP that is used to bind people when other
| measures are not effective.
|
| I get that the thought that the world is absolutely insane and
| absurd may not be a popular idea in the startup space which
| relies on a blind optimism, but IP is simply part of the cancer
| afflicting this world.
|
| You are correct that it was a tactical mistake that endangered
| the rest of the project but the values that prompted that
| decision are some of the values that should guide us in
| building a better world if we want to stand any chance of
| avoiding a Black Mirror like dystopia on the path towards which
| the world is very much on.
| orbisvicis wrote:
| I strongly agree. My taste in classical music in my formative
| years calcified around the 1940s mainly because I couldn't
| easily obtain sheet music any more modern. I think it's crazy
| that I lack appreciation, taste, and exposure to nearly a
| century of music (with some exceptions) simply because of
| copyright law.
| shrimp_emoji wrote:
| But sadly, going to argue about it in a room with a mandatory
| dress code from the 19th century is not going to overturn
| pre-digital norms.
| xhkkffbf wrote:
| I am also a strong supporter of them, but I wrote them
| immediately and said that this plan of theirs was both very
| illegal and insulting to artists, writers and creators
| throughout the world.
|
| The only reason we have professional or semi-professional
| artists and writers is because they're able to sell copies one
| way or another. The EFF and the IA would like to believe the
| writers and publishers are outrageously wealthy and able to
| sustain the kind of bleeding and pseudo-piracy they endorse.
| The reality is that most are barely getting by. It's sad to
| watch the richy riches of Silicon Valley steal from the artists
| and writers.
| reedciccio wrote:
| I think you have the story backwards: the artists starve not
| because the IA shared books in a planetary emergency. It's
| because publishers don't remunerate the creators fairly but
| turn cash to the executives and shareholders instead.
| Doctorow and the EFF have multiple explanations of why this
| happens and it has nothing to do with Napster-like tech.
| kmeisthax wrote:
| Yeah. Strictly speaking, the reason why the music industry
| shat their pants over Napster was because someone found out
| a more economically efficient way to scam artists. They'd
| been fighting for decades to ensure that _they_ would be
| the one ripping off artists, and then charging the public
| as if the artists were actually making a decent living.
|
| Every time I see an artist worry about online piracy, I
| roll my eyes. It's not _not_ a threat, but it is a rather
| weak one unless you 're a best-selling author or musician.
| You're far more likely to either get ripped off by a "for
| exposure" bro[0] or music label, _or_ just have your work
| languish in obscurity.
|
| There's actually a bunch of authors that signed a letter of
| support for the Internet Archive in this suit, specifically
| because libraries are very, _very_ good at getting mid-list
| authors into readers ' hands. They value the author's work
| at the expense of the publisher's ownership, which is why
| publishers hate them. An author that gets a bunch of
| library exposure can sell people on another book tomorrow,
| but the publisher is out on "lost sales" today.
|
| [0] I expect this to be replaced with GPT/SD enabled
| hustles eventually
| toomuchtodo wrote:
| You're blaming the Internet Archive ( _an online library_ )
| for the sins of publishers and the broad devaluation of
| digital content due to the Internet? For example, Spotify
| pays pennies per stream because that is what the content is
| worth when there is so much available. Piracy didn't kill
| copyright value capture by artists, the Internet did (just as
| LLMs will devalue intellectual work). This is scarcity
| inertia having an existential crisis with technology enabled
| abundance.
|
| This started during Napster times, and is why bands derive
| most of their income from touring and merch.
|
| Please reconsider your position based on the evidence. We
| need to figure out a way to compensate creatives, but the
| Internet Archive providing access to content in a controlled
| manner is not of material impact to the economic situation.
| Z-library and LibGen make content available with no controls
| already.
| misnome wrote:
| > against our library and the longstanding library practice of
| controlled digital lending
|
| Isn't this... deliberately misleading? As I understand it there
| wasn't really a problem until they decided to embark on
| "Uncontrolled" digital lending.
| boomboomsubban wrote:
| No, it is not misleading. Almost all of the lawsuit is about
| controlled digital lending, with the COVID relaxing being an
| example of the things people could do while managing a CDL
| system. And the publishers were already objecting to CDL before
| COVID.
|
| The end goal for the publishers is definitely the removal of
| CDL, not punishing the IA for the pandemic actions.
| sp332 wrote:
| They're arguing that the IA's library isn't even a library.
| duxup wrote:
| I agree.
|
| I don't understand why they took this risk. The internet
| archive is a great resource, why did they pick this digital
| lending hill to die / risk all that on?
|
| It seems irresponsible.
| ghaff wrote:
| The IA has basically existed because they did stuff that, for
| the most part, publishers/companies didn't care about or even
| secretly appreciated. Storing old web pages, magazines,
| millions of bits of other ephemera that would otherwise only
| have existed on musty library shelves if at all. And they
| would even take something down if some owner wanted some bit
| of history to disappear.
|
| The idea that because COVID, in a world with the Internet
| along with also massive quantities of public domain works on
| Gutenberg and elsewhere, the IA just _had_ to triple down on
| digital lending just makes no sense.
| stametseater wrote:
| They're not in trouble for sharing books that were
| available in the public domain.
| stametseater wrote:
| > _I don't understand why they took this risk._
|
| They, and many other people around the world, got it into
| their minds that Covid had suspended all normal rules and
| left them free to do whatever they thought to be a reasonable
| response to the circumstance, which in this case was _" the
| normal libraries are closed so we'll give out free access to
| all our books."_
| duxup wrote:
| It's so strange as my library has ebooks. The libraries
| were still available in pretty much the same way.
| stametseater wrote:
| My library has ebooks too, but the collection is abysmal
| compared to Archive.org. Archive.org digitized a ton of
| books that you'll be very hard pressed to find ebooks of
| for sale let alone in public libraries (except Library
| Genesis, Z-Lib, etc.)
|
| Archive.org's error wasn't in believing that their act
| would be useful. The error was in their belief that laws
| were effectively suspended "because Covid".
| monetus wrote:
| Does your library restrict the number of copies they
| "loan" out? I have waited for 6 months to check out an
| audiobook, and sometimes a few months for other less
| popular ebooks where they only have 1 license.
| misnome wrote:
| Lying about it comes across badly. As though they think their
| best chance of success is to pretend it's about something
| else. I support the IA mission generally but this came across
| as exceedingly dumb when they did it.
|
| Maybe they are right and this existential gamble will work
| and it'll clarify an area of ambiguity that means it was
| legal - I'd love to be wrong. But I'm not placing any bets on
| that.
| duxup wrote:
| > Lying about it comes across badly.
|
| I agree 100%.
|
| It makes me wonder about the leadership that they made this
| decision, are going through with this legal situation, and
| keep trying to push this story.
| nonbirithm wrote:
| I really hope this isn't the end of the Wayback Machine. The IA
| being a centralized entity with an agenda not everyone agrees
| with was a problem not explored enough until it was too late.
| robinsonb5 wrote:
| Indeed, the Wayback Machine is an invaluable resource, more and
| more so as older sites drop off the net.
|
| But hosting, for example, multiple complete MAME ROM sets (and
| the existence of turnkey - albeit non-commercial - products
| which download them automatically) is in a completely different
| category from the Wayback Machine - and it would be a shame if
| the former was endangered by the latter.
| Ekaros wrote:
| I think there is quite a bit difference between archiving
| stuff. And making it publicly available. The first one make
| lot of sense, even if technically the content does not follow
| copyright laws. But there is important cultural history with
| it that should be considered. But on other side, maybe access
| should be limited in someways.
| ghaff wrote:
| The problem is that an Internet Archive where you you have
| to show up at some building in the Bay Area during office
| hours to access the archive is quite a bit less valuable
| than the archive in its current form.
| Ekaros wrote:
| I'm not saying in person, but at least some type of
| vouching before sharing the material.
| ghaff wrote:
| The details don't really matter. Having to say present
| research credentials from some university, even if
| virtually, isn't a whole lot more inclusive.
| ClumsyPilot wrote:
| how would this painstaking work be performed by a decentralised
| entity? Human beings have agendas, I am not sure why you expect
| them to be machines or politically neutral. This is normally
| understood when one donates to a charity.
| datapolitical wrote:
| Someone would spin up a nonprofit and buy the assets and keep
| it going
| themitigating wrote:
| Would it be more difficult to get funding during harash
| economic times?
| Kye wrote:
| It's already a nonprofit. The shell game works for for-profit
| corporations. I don't think it'll work when the kind of
| companies that usually play that game are the ones after
| them.
| mistrial9 wrote:
| specific assets of a non-profit must be transferred to
| another non-profit, with some oversight about costs. It is
| possible and does happen.
| mdale wrote:
| The internet archive does facilitate mirrors under the
| LOCKSS (lots of copies keeps stuff safe) philosophy.
| samdcbu wrote:
| If it was shut down due to a civil injunction for copyright
| violation, I don't think the Internet Archive would be able
| to transfer the Wayback Machine's data to anyone else without
| defying that injunction and risk being held in contempt.
|
| Someone would need to immediately begin trying to mirror the
| entire Wayback Machine's archive, ideally hosting the mirror
| in Luxembourg or the Netherlands.
| password4321 wrote:
| Archive Team Archive Team, assemble!
| anarticle wrote:
| On one hand, we can keep acting like companies are good stewards
| of digital information or we can look at the reality that the
| industry (books, movies, media, etc) does a reliably bad job at
| keeping sources around.
|
| Now it is possible to keep media around longer as a primary
| source which seems extremely valuable given the technology that
| exists. Copyright laws are due for an overhaul, and maybe we'll
| see something that embraces the fact that we have a new Gutenberg
| press capable of spreading information.
|
| Anecdotally, I'm a bit tired of subscription services
| add/removing videos or books from their catalog. I have
| cancelled, since I don't want to pay to be gaslit that I saw
| something that "doesn't exist". I know, I'm not paying to have
| everything forever, I'm renting etc. However, whatever their
| licensing problem is, it is Not My Problem (tm), and so I voted
| with my wallet. I don't like when companies exploit object
| permanence in a way that makes me feel like I'm the crazy one.
|
| Lend like print is a good model, but that creates more DRM, which
| on the long haul has not panned out in the technology world as a
| good thing. There has to be a balance, but what of the long view?
| Publishers need less execs/admin, as publishing costs are
| dropping very deeply.
|
| I think Brewster Kahle and team are doing a great work, and I
| hope they win.
| sacnoradhq wrote:
| DRM, copyright, and the concept of lending online are impediments
| to access.
|
| And, indefinite rent-seeking is ridiculous.
|
| Let old data be archived and free.
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