Are you suggesting that the law reflects an entrenched, emotional celebration of an antique, traditional notion of a library, and not something rational and consistent about lending, copyright and the economics of writing? Apostasy! I want this conversation to only be strictly about what the case law says, so that I may tell you about it “again” and again!
No, the problem is that the preceding analysis is a category error, in that it assumes the law has a purpose of minimizing the circulation of an individual book. It does not, which is why traditional libraries weren't threatened by it.
And the next step is to deprecate and stop publishing physical prints at all, which is already mostly the case with other kinds of media. Then you won't just have less rights with digital things but less rights period.
I don’t know, it doesn’t take a genius or a law degree to understand that maintaining a one to one ratio of physical copies to digitally lent books is the same shit as a regular library but more convenient. It stands to reason that the law shouldn’t preclude technological advances that make libraries more convenient. The reason traditional libraries aren’t threatened by the law is cultural. There are states that ban books my dude, it’s all cultural.
I wonder why judges are anti-library. Although I can understand why they are generally anti-technology: the law school people have a lot of beefs, and beefs with the compsci people rank highly. And before you start telling me all the reasons why “beefs” aren’t a central part of the character of judges and therefore law in this country, you should maybe read more about guys like Clarence Thomas and Samuel Alito.
It’s apparent to me that the law has jumbled a bunch of archaic concepts of what “copying” means in order to transfigure the argument into a technically obscured realm.
A library allows one person to read one book at a time. A digital library doing the same while using technology to make lending more efficient accomplishes the exact same goal.
We’re using precedent to override common sense and prevent digital libraries from effectively existing under the guise of protection.
Is that really suprising considering the general copyright climate? Do you link libraries would be allowed to exist if they were conceived of today?
I'd say probably not - but then "AI" seems to not be facing the same rules as regular people so perhaps if libraries could find a way to become "big" fast enough they could have a chance.
Maybe a case with a better fact pattern (for instance: lending only books without competing publisher epubs) might have had a better chance, but I think people are getting themselves tied up in knots about IA's intent, which is just one factor in a fair-use analysis. The law cares deeply about copies, not about circulation or access.
Further: it seems weird to blame judges for applying what is in fact very straightforward law. Seems like your problem is with Congress!
Fair use is not "very straightforward law", and is deliberately a fuzzy line; I do in fact think CDL should have passed a fair-use analysis. Separately I also think the law should improve.
It seems like you're making a "what happened" argument in response to a "what should have happened" argument. It's possible to make an argument in favor of this being fair use, and it's possible to make an argument against fair use. The (subjective) decision here was the latter; it doesn't preclude the possibility of the former. I'm not arguing that it was a stretch to say "no"; I'm arguing that it also wasn't a stretch to say "yes".
In terms of the fair use argument that could have been made, the Internet Archive's CDL obviously failed "nature of" and "amount and substantiality of", but I think it did not inherently fail "purpose and character" or "effect of the use", despite the decision saying it did.
In terms of concrete legal changes that could and should happen: "right of first sale" should be updated for digital, and include both "right to do format-shifting" (e.g. scanning physical to digital) and "right to lend copies digitally" (just like first-sale already explicitly allows physically).
I don't think you can reasonably make a "the law is not as simple as you say it is" argument and shore it up with a "the law should be different" argument.
The 4 fair-use test questions:
* How transformative the derived work is
* How much of the work is copied
* The expressive nature of the work
* The impact the derivation has on the market for the original
The Internet Archive:
* Copied works and made them directly available, deliberately avoiding transformation of any sort other than their accessibility.
* Copied them in their entirety.
* Exclusively copied books, the expressive work most legible to copyright law since the time of the framers.
* Made them available as a substitute for publisher-provided ebooks.
Any of these factors is enough to tank a fair use case. IA presented just about the worst possible fact pattern for all of them. This was an easy, straightforward decision to read. I didn't notice any point at which the 2nd Circuit had to stretch to reach the conclusion they did.
I wasn't shoring one up with the other; I was making both arguments separately.
The four-factor test does not require that all factors pass. It's possible for a use to completely fail some of the factors but still qualify as fair use on the basis of the other factors.
No argument that CDL failed "amount and substantiality of"; they copied entire books. (This is, of course, exactly what they do with everything else, and that's not been a problem before.)
IA's "nature of" argument could have been reasonable for the subset of works that constituted nonfiction/educational material (there is a long history of the copying of those such work for educational use); that wouldn't have sufficed for other works, but it was a reasonable point for the subset of works it applied to.
For "purpose and character", the use was not hugely transformative, but it was turned into a different and more accessible form.
As for "effect of the use", I would argue that CDL was not in practice a substitute for most uses of a book or ebook. A book that you borrow, and have to return, can sometimes substitute for owning your own copy, but not always; in practice, the users of libraries and the users of bookstores overlap but I would venture that the majority of people who borrow a book from the library would not typically have bought the same book if the library didn't exist.
Suppose one built an automated apparatus that remotely opened a physical book and held individual pages up to a webcam for transmission to you on a video call. That's technically making a copy in the course of its operation, but you're still effectively reading the original physical book, with some assistance. (The Supreme Court ruling against Aereo would sadly probably be cited to shoot down such a model. That was a sad ruling as well; the opposite ruling would have enabled an incredible variety of uses and possibilities.) The 1:1 CDL mechanism seems effectively equivalent to that.
>Made them available as a substitute for publisher-provided ebooks.
Is this true? A substitute is like for like. The IA lending provided them as a lend on the proviso that a physically purchased book is available and unused.
Its like saying that a Bookstore is competing with a Library. However the Library can only satisfy a small amount of Bookstore demand, and does so as a public good. They arent the same and the lending is downstream of a sale.
I guess you could make the argument that ebooks also have crippling anti consumer licenses so both are similar. But that just leads back to "The law should be different"
Publisher ebooks don't have to satisfy any tests. The publishers own the copyright on the work. They can generally be as anti-consumerist as they like. That's the law.
