Postcards from Theoryland

And now they're getting martyred for it.

And it's their own goddamn fault.

And we're still going to pay for it, as a society, either paying for their dumbfuck legal pirouette, with the loss of all the material that they claimed to be custodians of but instead endangered recklessly, or realistically, both.

I saw the 2020 Internet Archive post about their "Emergency Library" and my immediate response was, "But isn't that a huge violation of copyright? I hope they know what they're doing." Spoiler alert: I do not think they knew what they were doing. I think they fucked around and are now finding out.

The thing which makes me the most mad about this (up to and including the potential loss of everything in their archive) is the fact that this whole court case--this court case which is really and truly the Internet Archive's fault, not an overreach on the publishers' side--has made it so, so much harder to ever even potentially get legal sanction for actual controlled digital lending.

What the Internet Archive was doing Was. Not. Controlled Digital Lending (CDL). Actual CDL is when a library takes a book out of circulation, scans it, and then makes the scan available to one person at a time while the physical copy remains non-circulating. One copy of each book to one patron at one time--that's why it's called "controlled".

CDL is most often done for materials which don't have an ebook version.* For instance, the library I worked at in 2020 used CDL to make certain course reserve textbooks available to students remotely.

Librarians are and were aware that while they consider this a Fair Use exception to copyright, CDL occupies a legal gray area.** The case for fair use rests on the arguments that such use is not (or is very minimally) impeding the market because 1) the library is not loaning out more copies than they have already paid for (just doing it in a different medium) and 2) in most cases, there is no competing product from the publisher (the libraries aren't using CDL to replace available ebooks and therefore aren't causing market harm to the publisher). This use is also argued to be parallel to making digital copies of print books to allow visually impaired readers to access them,*** which is a legally established fair use case.

So libraries (some libraries) were cautiously forging ahead with CDL, hoping that if it was ever challenged, it would be found to be fair use, and that maybe it would make the digital lending/ebook landscape just a little bit less broken, and in the meantime knowing that we were making materials more accessible to our patrons.

And then along comes the Internet Archive with their "Emergency Library" where they just make every scanned book they have available to use with no restrictions. No limits to one user per physical book at a time. No considerations based on whether or not a publisher's ebook version is available. And they called that "Controlled Digital Lending".

And in doing so they have potentially harmed actual controlled digital lending for all libraries in the US.

Now every publisher who hears "controlled digital lending" is going to think of the Internet Archive's abuse of the term. Now there's legal precedent that a thing called "controlled digital lending" is a violation of copyright (even though the substance of what's meant is different). Now CDL is forever associated with actual, clear copyright violation.

And that makes me mad because this was all so preventable and is due entirely to the Internet Archive's choices.

*Partly for copyright reasons, but also because scanning a book is actually a lot of work, so buying an ebook is a lot easier. And even with how much libraries get charged for ebooks (if you weren't aware, it's often at least 3 times as much as the retail version, and we don't always even get to keep the license in perpetuity), scanning is so much work it can be more cost-effective to buy a publisher's ebook even leaving aside copyright issues.

**Almost all fair use is technically a legal gray area. Fair use is a defense against copyright infringement (that is, it is essentially permitted infringement), so any fair use case that hasn't been litigated is a sort of Schrodinger's fair use. We (general) act on the considered belief that the use is legally fair, but until and unless it's hashed out in court, no one can know for sure whether a certain use would be considered fair or illegal infringement.

I want to emphasize that. I agree with all the points you're making.

However, bad copyright law is not changed by purposefully breaking said bad copyright law and then offering an insustantial legal defense to it that boils down to: yeah, but the law sucks tho!

That's what the IA did.

The IA fucked over authors and libraries everywhere by poisoning the well of an actual fair use scenario, by calling blatant piracy by the same name. This has created legal precedent that attacks that fair use scenario because it has been defined as blatant piracy.

Look, I think piracy is mostly ethical under the capitalist hell scape we live in.

But the IA is not the folk hero they're pretending to be. They made a shortsighted, stupid decision that contradicts their stated purpose and endangered their core function.

They fucked up and all the lip service in the world won't change the fact that what they did was look at a clearcut law and said: but what if I don't want to?

There are actual, badass ways to challenge copyright law or to enshrine fair use scenarios. Do you know who is at the forefront of that?

Actual libraries.

You know, the ones the IA refused to work with and recklessly endangered over a stupid PR stun.

As someone who thinks the IA is deeply important and their mission crucial for the future of a free internet? Fuck the IA and everyone who looked at "let's just become a piracy site and see what happens!" This is what happens! You get sued out of existence! Just like all other piracy sites that aren't smart enough to hide!

Piracy is not risk free!

Did you know their stupidity almost got the entire organization reclassified as a commercial venture? Because that's what piracy websites are. The only good thing that came from the latest failed appeal is that at least the judge agreed they're not a for profit.

That's how stupid they've been! They risked everything and nearly lost everything, pursuing an avenue that would never yield the change they say they wanted.

That's the other thing I have to emphasize. The kind of better copyright law they insist they are trying to being about? That's not possible through the judicial system. That's the kind of thing that takes lobbying the legislative on a local level all the way up to federal, one bloody step at the time! Again, look at libraries! Look at the work they have been trying to do, to fight against misinformation, censorship and copyright overreaching.

Libraries have been doing all the heavy lifting, and then the IA fucked up and nearly fucked them over in the process too.

Is the IA important? Yes! I hope they survive this. But this is their fault. They're not hapless victims of the evil corporations.

For those of you who don't know me, I recently had to leave my job for childcare reasons, but for the last 6 years I've been an academic librarian doing CDL on a large programmatic level with stuff on IA (no I won't say where).

I had the exact same reaction OP did when IA launched the National Emergency Library, and I knew this final judgement was coming as soon as the district court ruled in March 2023. In fact I remember telling my staff the next day "they officially girlbossed too close to the sun, but don't worry, I've been working on things to make sure none of you lose your jobs." Yep. That was a real conversation IA's choices made me have with my staff.

OP goes into fantastic detail about what CDL is, so I won't do more of that, but if anyone wants further reading, this white paper from 2018 is a great resource.

My firm belief on all of this is that things would have been very different if we had one of two different alternate realities.

Alternate Reality 1: Brewster Kahle had a little less "rich white guy with a savior complex" and a little more realism in his personality. Brewster founded IA and this is how he thinks he's gonna save the world. Look. I'm a librarian and I believe access to information is a human right. HOWEVER. I'm not about to use a global pandemic to break my own rules that to date had kept publishers from suing me. My guess is that he didn't care and actually welcomed the lawsuit because he thought he would win because he was on the side of righteousness. Given how IA's lawyer argued the case, this seems pretty plausible.

Alternate Reality 2: IA existed as brick-and-mortar or some other brick-and-mortar library was the defendant. The district court judge could not wrap his head around the idea that IA counted as a library because it didn't have a building you could go to to check out books. He also had a huge problem with the fact that their "defined userbase" was The World. An academic library's userbase is limited to students and faculty and maybe the local community if they're either a state school or feeling generous. Your local library's userbase is limited either to your town or your county depending on how the library system is set up. In other words, there are limits. The judge Did Not Like that IA was for everyone on the planet. I genuinely believe that a library with a closed ecosystem that focused entirely on books that didn't have e-versions would have survived this.

Now, when I got hired, my manager at the time sat me down and said that the ultimate goal of the institutions doing CDL was to bait a lawsuit because of the legal gray area borne of the fact copyright law has not kept pace with technology, and they asked if I was okay with that. I was (and still am) because I both like being on the cutting edge of things and feel that the legal theory has merit. During my time on the job, the only books we did were titles that were either out of print, or old enough that they had been superseded by enough new editions that they could be considered "a history of [topic]" rather than current knowledge. None of these books have or will ever have an ebook version.

Which brings me back to the National Emergency Library. Not only did IA remove lending limits to books currently in print, they did it for books that had a publisher-available e-version. How could you be so stupid, I shouted daily into the void since then. Did you think the lawyers a non-profit can afford can punch in the same weight class as the in-house counsel for Harper?? The fourth of four legal tests to support a claim of fair use is "does the use cause market harm".

IA's defense boiled down to "let's not talk about the NEL, that was an aberration of the concept put in place only because of covid lockdowns and let's assess CDL on its own". This opened the door for the publishers to argue that IA has already broken the rules once and can't be trusted not to do it again. The publishers also successfully argued that the Works In Suit did not pass the transformativeness fair use test.

(IA argued that the increased efficiency made the use transformative not derivative, which.... is weak sauce honestly.)

Basically yeah. IA fucked around and now we're all finding out. What happens next depends entirely on how bad the damages are. While the Wayback Machine had no part or relevance to this suit, the monetary damages could be bad enough that they can't afford to keep it running. AND, IA is basically facing the same lawsuit over music. They either need a way better lawyer for that suit or just give up.

I understand that people are trying to create safe spaces, but as the number of comments that I get on my fics dwindles with each passing year, knowing these spaces exist where my fics are being discussed, places that I am excluded from, makes me want to write fic LESS

I mean I guess who cares, right, because if I stop writing, there’s 10,000 other people that will continue…but if you participate in a fic “book club” server and you say nice things there about a fic you loved, maybe copy and paste that into a comment on AO3?

They don’t feel big. They don’t feel appreciated. They don’t feel motivated. And they might stop writing or shelve their fic, never knowing that people were loving it in private.

happy tdov my loves. don't let anyone else define your transness for you.