The IA's "Open Library" is Not a Library, Yesterday's Lower Court Decision does Not "Hurt Authors," and the Planned Appeal Is (Almost Certainly) NOT a Good Way to Try to Change Bad Law (In Fact, It's More Likely to Make Bad Law Worse)
Ok, so a day later, I'm still mad about this. If anything, I'm even madder. I'm going to write this as a response to the Internet Archive's "The Fight Continues" blogpost, but before we begin, let's get some facts straight:
Copyright law in the United States, especially the law around digital lending, currently sucks. It's really really bad, and anyone with a stake in the game - except the big publishers and e-book services that profit from it - hate it.
That said, copyright law exists as a thing. As I said in a previous post, you *can* try to change it through court cases, but there are certain things you cannot change. And there are certain things you can try to change, but it will be an uphill battle to change them in a positive direction. And notably, as bad as digital lending law is in the U.S., it still could always get worse! And one general rule of impact litigation: if you are trying to change the law, you want to make sure you have the best possible facts. Because the worse your facts are, the worse your case is likely to go.
Yesterday's district court ruling DID NOT CHANGE ANY SUBSTANTIVE COPYRIGHT LAW IN THE U.S. I cannot emphasize that enough. Regardless of whatever you think of the ruling, it was applying already existing law to the facts.
This is because the Internet Archive's "Open Library" absolutely violates existing copyright law. It just does! They broke the law, they had plenty of notice they were breaking the law and harming authors (more on that below) and just think the law shouldn't apply because they don't like it.
The Internet Archive's "Open Library" is not a library. Some big ways it differs:
While it pretends to have a one-to-one owned-to-loaned ratio, as the opinion granting the publisher's motion for summary judgement notes, IA concedes that it allows "partner libraries" to add books to its collection and then doesn't check (and has no way of checking) if the book is out of circulation at the "partner library" at the same time it's being "checked out" of the Open Library. In other words, it's like if you took a book, scanned the pages, and then gave the scans to your friend who then loaned the scans out to other people but totally promised they were only lending the scans to one person at a time so it's basically like there is still just one copy! And meanwhile you still own, are reading, and lending out the physical copy of the book. Except instead of one book, they were doing this on a massive scale. NO, THAT'S JUST THEFT.*
Speaking of which, the "Open Library" didn't keep that promise! Their "Emergency Library" just let everyone borrow as many copies at a time as they could! Again, THAT'S JUST THEFT.
Like I'm sorry if you don't like the idea of copyright at all: right now, we live in a capitalist system where authors need to be paid for their work in order to, like, not die. If you take their work, scan it into your computer, and give it away for free to anyone and everyone, THAT'S JUST THEFT.
Also, most authors love libraries! Libraries allow more people to access their books while not substantially impacting their revenue and not impacting their rights! AUTHORS - not just publishers, authors - DO NOT LIKE AI'S "OPEN LIBRARY." Why haven't authors sued to stop this before, why is this the publishers suing? From the above letter: "Even simple copyright lawsuits must be brought in federal court, and often cost hundreds of thousands of dollars. A challenge to the Internet Archive could easily cost millions." Publishers have deep pockets that authors and authors' groups don't. Also, authors who object to AI stealing their work are frequently subject to harassment.
If IA won this case, the new law that would be made is this: it would be legal to steal an author's works.
*I'm using "theft" and "steal" instead of "piracy" throughout this write-up to make it clear what this is. "Pirating books" is just stealing them.
So to sum up the facts above: copyright law in the U.S. sucks, but it exists. Attempting to change it for the better through the court system would be very difficult. Even then, changing the law for the better would likely require a case with good facts. Unfortunately, the law could also change for the worse. Yesterday's ruling did not change any law. The facts in this case are very bad, because the IA absolutely violated copyright law. That is in part because the IA's "Open Library" is not a library; they just steal books. Many (if not most) authors and author's groups don't like that IA is stealing from them. If IA won this case, that victory would mean that anyone was allowed to steal an author's works.
*deep breath*
Ok, let's turn to the IA's statement, "The Fight Continues":
"Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve."
The Internet Archive is not a library.
No it's not. It is a blow to the Internet Archive, specifically, because you broke the law and it ruled you broke the law. As stated above, it does not change anything with regard to copyright, including digital copyright, law in the U.S., and therefore does not impact libraries or the communities they serve. If you appeal this ruling, as you have stated you intend to, and the law does change for the worse (which is always a risk of appeal, and a risk that gets worse when you have bad facts), THEN libraries might be affected.
"This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online."
I mean yes, in the sense that "controlled digital lending" isn't normal e-book lending. It's the thing you made up where you steal books and illegally redistribute them.
This genuinely sucks for libraries and communities that don't have other ways of accessing digital books because the current copyright scheme sucks so bad! Real libraries are doing things to try to help, and not just steal from authors! More on that below!
"It hurts authors by saying that unfair licensing models are the only way their books can be read online."
OH GO FUCK YOURSELVES
Ok this line, this line right here? That is honestly why I wrote this whole thing.
How DARE you cloak your theft in the real struggles authors face with unfair licensing models. How DARE you pretend you are on the side of authors when you are stealing their works, and they have made it quite clear that they would like you to stop, please. And how DARE you frame it in this "for exposure" bullcrap that ignores the real struggles that authors have to eat, to get healthcare, to get any sort of fair pay and wages for their work, and instead pretend that all authors should care about is whether or not their books can be read online.
And bluntly? If you - not IA, YOU, tumblr user reading this - if you shared this bullcrap statement and told people to donate money to the IA because of this? If you told people they should steal more books in response (because it's the publishers fault, ignore the real authors who are actually harmed)? How DARE you. How DARE you pretend to be on the side of authors and writers.
"And it holds back access to information in the digital age, harming all readers, everywhere."
Except for those readers who are also authors, and need to eat.
And readers who want to read books that will never get written if authors can't write (because they need to eat).
And also, no it doesn't, because it doesn't change the law. It just applies the law that already exists to you. Because you are not above the law.
"But it’s not over—we will keep fighting for the traditional right of libraries to own, lend, and preserve books."
You are not a library.
You were not (and are not) fighting for "the traditional right of libraries." Plenty of other organizations are fighting against bad copyright law in the U.S. This court case, however, was literally just about you stealing books.
Like I cannot emphasize enough that you were just stealing and you got caught.
"We will be appealing the judgment and encourage everyone to come together as a community to support libraries against this attack by corporate publishers."
You aren't a library.
Fuck you for borrowing the (justified) hatred of corporate publishers to paper over your bad actions.
Does "coming together as a community to support libraries against this attack" mean giving you money, as suggested by the calls to action at the bottom of this page? Because you aren't a library.
"We will continue our work as a library."
You aren't a library.
"This case does not challenge many of the services we provide with digitized books including interlibrary loan, citation linking, access for the print-disabled, text and data mining, purchasing ebooks, and ongoing donation and preservation of books."
First, and most important: these are all uncritically good and important things that the IA does! Despite the rest of this post, I am really really glad the IA exists, that it is doing these things, and I hope that it will continue to do this things!
You are correct that this case does not challenge those services! Because those services aren't just stealing books from authors, which is what you were doing, which is what this case is actually about!
I'm skipping the statement from Brewster Kahle because it's just more of the same. The statement then invites you to Take Action! by donating to IA and positing themselves as standing up for libraries! (They are not a library.)
But real libraries and librarians are actually fighting the good fight over lack of access to materials, especially digital materials and bad laws, and you can support them!
If you actually do want to "come together as a community to support libraries," and support digital access, may I suggest instead donating to The Brooklyn Public Library's Books Unbanned program?:
https://www.bklynlibrary.org/books-unbanned
While they aren't directly challenging bad copyright law, they are directly fighting back against laws that are much more actively and materially impact people's access to books, including providing free e-book and database access to everyone in the U.S. age 13-21. It's a great and important program, and your donations can really help!
Goddam it, I forgot to add:
Another reason why this sentence is so infuriating:
"It hurts authors by saying that unfair licensing models are the only way their books can be read online."
THIS IS A LIE
It is a lie that, whatever its intended purpose, spreads misinformation and fear.
This decision had NO EFFECT on other methods (e.g. non-theft methods) of non-traditional (or traditional non-exploitative!) digital publishing. If, for example, you choose to publish your work online for free or pay-what-you-want under a creative commons license? You are fine! This case has literally zero effect on you!
THANK YOU! god, i’ve been waiting to see a sensible take
the fact is, stealing copies of books hurts authors. y’all, most authors don’t even make enough money to quit their day jobs, let alone enough to support themselves full-time. if you are able to buy a book or check it out from a library (a real library) and you steal it instead, you are impacting the author’s current AND future prospects
know what happens when a publisher decides an author isn’t making them enough money? that author doesn’t get the chance to write a sequel to that book you loved, or to expand their body of work. enough people who have the ten or fifteen bucks to fork over and don’t bother? kill stories and careers
and it can be even more convoluted than that, i’m not naming names, but i know of an author who can’t write the sequel to one of their best works because an entirely unrelated book hasn’t sold enough copies! the publishing world is fucking wild in a bad way, and IA making it easier to steal books sure as shit isn’t helping
look, i’m lax about pirating in general. there are plenty of companies in plenty of forms of media who don’t deserve a damn cent of your money and will keep making movies/shows/video games anyway. it can also be the only way to get hold of something that’s no longer legally available! but don’t steal from authors who are as far from being household names as it gets. you love that first book that new author just wrote? buy a copy. you want the next entry in a series? buy the rest of if. buy these books or find them at the library (again, a real library) if you can, because your wallets have a vote in whether or not the next book gets to happen
