back to article Publishers land killer punch on Internet Archive in book copyright court battle

A federal judge rejected the Internet Archive's claim that it has a fair use right to lend out a digital copy of each printed book that it has purchased, raising the possibility of it facing huge damages for copyright infringement. A week ago, Judge John Koeltl from the Southern District of New York heard oral arguments in …

  1. Anonymous Coward
    Anonymous Coward

    "...because there's no way for the copyright owner to guarantee that you're not lending the same physical copy at the same time."

    Why is the copyright owner responsible for guaranteeing that you aren't lending both copies? That seems like a stretch.

    1. doublelayer Silver badge

      They're not responsible for ensuring you followed the law. The publishers are arguing here that, since it's hard to confirm that you're not breaking the law, therefore you shouldn't be allowed to do something that makes breaking the law possible. I don't think that particular argument is very strong. Sadly, neither was the Internet Archive's attempt to claim that copying a paper book into a digital file is a transformative activity covered under fair use, which normally involves much smaller uses like posting quotes in a review or making a parody. I'm not an expert in copyright law, and both sides are going to need one to have a chance of resolving this in the way they want. I'm hoping the IA can find a way to continue, or at least can escape large penalties, but they will probably need to drop some of their more expansive arguments to do that.

      1. John Robson Silver badge

        It could easily be transformative if they are lending to people who can't access originally printed works because of visual issues.

        But it doesn't sound as though that's their defence.

        1. doublelayer Silver badge

          "Transformative" in the case of fair use doesn't refer to the transformation the reproduction can make on society or the reader of the content, but what happened to the copyrighted work. It's meant to indicate the difference between copying the entire thing and quoting a section, starting with two pages then making up a new story for the rest of it and swapping some commas to make it not exactly the same. It's attempting to codify common sense into law, which never works as you'd want. In short, to argue fair use, you have to prove that you're making something different. Pointing out that your non-transformative use has a lot of benefits for people is not part of the law and a judge won't accept that as justifying a fair use defense.

          1. John Robson Silver badge

            In the sense that your reading would have it's own, new, additional, copyright - I can't even remember if that's transformative...

            Copyright law sucks, we need to do something better - we need copyright, but it's currently a mess.

            No I don't have a solution.

      2. runt row raggy

        this is a "with a computer" derivative argument.

        with a physical book, it's hard to confirm the owner isn't making old fashioned photocopies. so agreed, the argument is lame.

    2. Anonymous Coward
      Anonymous Coward

      Right, this judgment is a little twisted

      Pre-internet era rights have been broadly extended to the internet age, no in all cases, but it's not in "no cases" either. So the summary ruling that there is "no right" is a more than a little arm wavy because the judge explicitly ignored the process of determining if the pre-internet rights and entitlements still applied to digital goods. And the way the judgment is framed will impact how the ruling proceeds through appeals and if the Internet Archive will be granted a stay.

      You raise a good point about the bass ackwards logic of faulting the process because the owner can't guarantee a process they aren't legally entitled to control. Their rights end at being able to pursue legal action against anyone they think is violating their copyright, with the burden of evidence on them to show that there was an infraction, not of the defendant to prove their innocence.

      And on the point of the Internet Archive or any other group holding rare books that restrict access to the original copies(including university collections and museums), there is ample ability for them to show at trial that the books are locked up a warehouse, and there is not facility for the physical copy to ever be "checked out". Not that that should be the standard, as it is fair and reasonable for a librarian to sideline a copy of a book for digital checkout, or block online access to that copy if the book will be physically lent.

      So the plaintiffs here want, as always, the government to act as their free enforcer, so reverse the burden of proof, and to force non-profits and public libraries to pay repeatedly for access to materials they already own.

      These are issues the judge in question might not have been competent to decided, but they deserved to be heard at trial, not erased in an unjustified and unfounded summary judgement.

  2. VoiceOfTruth Silver badge

    Ah, the digital age

    Where buying something means you don't own it.

    1. Snowy Silver badge

      Re: Ah, the digital age

      In a way you never did the contents of the book. You buy a copy of a book you own that copy of the book. If for example your dog eats it you do not get to have another copy for free, nor do you get to make a copy for a friend because your not reading yours.

      I assume all the books are out of print?

      If so the publisher damages are very close to if not zero, after all if your not selling something your not losing anything either. Publisher do not make any money on the second hand book market (but I'm sure they wish they could)

      What would be better if they did some very low cost licencing of the books. They would get good will and some income on out of print works.

      That or digitise them themselves and sell the books!

      1. Long John Silver

        Re: Ah, the digital age

        They are not all out of print. Neither are they all beyond claim on copyright.

        The Internet Archive seeks to operate like a present day lending library, one which holds paper and digital 'content'.

      2. VoiceOfTruth Silver badge

        Re: Ah, the digital age

        -> Publisher do not make any money on the second hand book market (but I'm sure they wish they could)

        That is what this is about. If I buy a book I can lend it to somebody else much like a pair of scissors. The publishers would love to charge a fee for that. We will own nothing, they will charge for everything.

        1. Joe W Silver badge

          Re: Ah, the digital age

          In many countries (Britain and Germany, from what I gathered in discussions) you need to have a license to lend out a book commercially. Note that comemrcially does not neccessarily mean you want to make big bucks from it. Library copies of books (and of other media, like movies or audio recordings) are paid for differently than copies for private use. No, not everybody is aware of that (nor is this strictly true in all places).

          If you just lend your copy of "War and Peace" to your niece that's no problem. If you rent it to others this is no longer allowed, as far as I understand it. So, yes, they want to charge you for the privilege of commercialising (again, you do not have to earn big money to fall under that category - they surely do have a monthly fee or somesuch?) their product. Go figure.[*]

          [*] not that I do not have my own opinion about publishing houses, and about authors' rights abuse they commit... in this case I seem - strangely enough - on their side.

          1. JimC

            Re: license to lend out a book commercially

            Yes indeed, and as an author I get a royalty from public library lending. Its not big bucks, but I haven't written a mass market book. The total over the last 5 years Its approaching 20% of the royalties I've received from print sales (which amazes and pleases me!) so its by no means insignificant. OTOH I bet I would get stuff all from the Internet archive if they were 'lending' my book out. There can be no objection to them offering the service for out of copyright works, but leeching on copyright works is out of order.

            1. Anonymous Coward
              Anonymous Coward

              Re: license to lend out a book commercially

              Then perhaps the answer is for them to incorporate a similar royalty structure for those books still in copyright?

      3. DuncanLarge Silver badge

        Re: Ah, the digital age

        > I assume all the books are out of print?


      4. Ideasource

        Re: Ah, the digital age

        I claim any information I ever encounter, and consider any that don't as victims of self-oppression

        1. F. Frederick Skitty Silver badge

          Re: Ah, the digital age

          I'm the words of the Virgin Mary, "come again"?

    2. ~chrisw

      Re: Ah, the digital age

      It's not so much that, it's the fact that old copyright law and doctrine has been transplanted into an age ill-equipped to handle its operation in parallel with new forms of use. (And if you thought the music industry was bad, check out the publishing industry...)

  3. Long John Silver

    "Killer punch"? - no, gasoline for self-immolation by copyright 'rentiers'

    The hegemony of 'intellectual property' (IP) rentier economics is coming to a close more rapidly than I anticipated.

    The Internet Archive has lost in a case brought before a US Federal judge. More likely than not, the judge interpreted the law diligently. Judiciary in higher courts may or may not agree with him. No matter, law, as in statute, is being superseded by law in other guises: take your pick from 'moral', 'realist', 'pragmatic', and 'jungle'.

    Law lacking power to enforce is nothing more than recommendation. Just possibly, the Archive shall be obliged to close down. Yet, that would be a terrible outcome for the rentiers. Widely, they would be perceived as having destroyed a noble effort to share knowledge/culture fairly. The Archive is not some tacky outfit trying to gull people into divulging credit card details. It is not the somewhat nobler type of site, offering bounty free of charge whilst regaling visitors with pictures of prostitutes available in their area (old-fashioned telephone booth advertising). The Archive comes across as a genuine 'not for profit' (aka charitable) rather than so many of its ilk which operate under that banner.

    Across the globe, exciting things are happening. Russian response to the USA sanctions diplomacy has placed Western IP in the crosshairs.

    The first link refers to former President Dmitry Medvedev's suggestion to allow Russians to download western entertainment content for free. Medvedev is the deputy chairman of the Russian Security Council, and thus continues to carry weight within the Russian Federation.

    The second link is confirmation by a Kremlin spokesman that Medvedev's proposal is backed.

    What better than to offer the Archive protection within Russia? Further, to legitimise Sci-Hub, Z-library, and so forth?

    I am seeking to persuade the Kremlin of the advantages to the economies of Russia, China, and the 'Global South' from eschewing the concept of IP as applied to copyright and patents. Gains will figure in monetary terms, despite short term disadvantage to the nations' current IP supposed 'owners'; more importantly, it will break the dam holding back knowledge (and its application) and culture (and derivation from it) from distribution to all. The knock-on will be beneficial in monetary terms (for those whose minds are affixed to that metric), but importantly it will kick-start another intellectual renaissance: perhaps we can conquer malaria and get to the stars sooner than we thought?

    The transition from rentier (monopoly) economics to a proper market-driven set of business models truly compatible with market-capitalism, I have sketched elsewhere.


    Released under the Creative Commons Attribution International Licence 4.0.

    1. ecofeco Silver badge

      Re: "Killer punch"? - no, gasoline for self-immolation by copyright 'rentiers'

      At one time, copyright was a civil matter and only enforceable per each nation's varying laws.

      Over time, the large corps put increasing pressure on foreign nations to conform their laws to the USA's. At the same time, they also pushed to criminalize copyright violations and, here's the kicker, lengthen the term of the copyright. All the while DECREASING the royalties to the actual author/artists.

      And here we are.

      However, the U.S. Constitution is rather vague about the length of time a copyright should last, saying only that it is "limited". Most rational people wold not consider 100 years, limited.

      The same thing has happened with patent rights as well.

      Rentier economics, indeed. Perhaps we can just eat more cake.

    2. doublelayer Silver badge

      Re: "Killer punch"? - no, gasoline for self-immolation by copyright 'rentiers'

      "What better than to offer the Archive protection within Russia?"

      Many things would be better than placing such a wonderful resource under the control of a dictatorship. I'm not particularly interested in watching Russia's censorship organizations loose on the IA.

      "The transition from rentier (monopoly) economics to a proper market-driven set of business models truly compatible with market-capitalism, I have sketched elsewhere."

      And when you have, I have objected to the unworkable dream you've sketched out. The dream where people continue to make stuff and give it away for free because a bunch of nice rich people pay for it out of the goodness of their hearts. If I can write any utopian idea and pretend it's a plan, it would be great, but it's usually better if we stick to the bounds of realism.

      "Law lacking power to enforce is nothing more than recommendation."

      This law has the power to enforce by massive fines with a government that has the ability to collect those fines. The Archive follows the laws; they're not about to go underground. I don't like the decision either, which is why I'm hoping that they can find a path out of the penalties.

      "Just possibly, the Archive shall be obliged to close down. Yet, that would be a terrible outcome for the rentiers. Widely, they would be perceived as having destroyed a noble effort to share knowledge/culture fairly."

      Maybe, but that wouldn't be a big blow to them. It would be a much bigger blow to me and a significantly larger one to the operators of the organization. The general public isn't going to stop buying books just because some publishers sued a site they haven't used. I get that you'd like this success to spell the death knell for copyright, but the facts don't work with that interpretation. I disagree with you that doing that would be a good thing, but regardless, this case will not get us closer to that world.

    3. Chris Coles

      Re: "Killer punch"? - no, gasoline for self-immolation by copyright 'rentiers'

      Totally incorrect! The concept of a rentier economy describes where a sale is never fully enacted; the purchaser pays a price but never receives full value of a conventional purchase, instead receives a classic rental contract from the company providing the goods. All rentier contracts are NEVER any form of conventional sale; where the ownership of the product sold passes to the purchaser; with the particular aspect of book sales being, you purchase the physical book, but that the publisher and author retain the rights to the text; to prevent anyone from being able to sell the text onwards in multiple copies of the text; thus allowing anyone to act as secondary publishers of the text for their own purposes.

      As for saying the secondary publisher is a charity; forgets that all such pay their managers an income; and thus the charity managers profit, often greatly. To re-enforce that statement, in all the years I have been dealing with charities; I have never met an unpaid manager, or creator of a charity. yes the managers use the services of volunteers to help in the charity shop; but the people at the top always take an income; and charities always sell whatever for a cost to the purchaser . . . charities are there to obtain an income to pass on to particular local or national or even international needs, they are never cost free, must always derive an income from their activities.

  4. IGnatius T Foobar !


    I have some reservations about Internet Archive, even though I am a personal friend of Jason Scott.

    And this isn't really Jason's fault, but IA has a habit of easily rolling over and obeying any authority that wants something taken down. This happens if it's a copyright holder, or if it's someone of wealth and/or power who wants something "inconvenient" scrubbed from the record. is useful to preserve things that might otherwise fall into the bit bucket. To keep things from being "erased from history" use or instead.

    1. doublelayer Silver badge

      Re: History

      " is useful to preserve things that might otherwise fall into the bit bucket. To keep things from being "erased from history" use or instead."

      If you really want something archived, archive it on all of them. That way, if something happens to one of them, even something as basic as a database not syncing properly, there are backups. I don't know about how often the IA removes data, but they must face a lot of copyright claims and having seen some of the stuff that's uploaded there, some of those claims are entirely valid. I'm curious what examples you would provide that aren't legitimate copyright claims. Like it or not, even if it's being done to scrub something from the record, if it's the copyright holder who wants it scrubbed and they didn't use a license that explicitly waived that right, they have the right to have it taken down.

    2. General Purpose

      Re: History isn't open about who runs it, how it's funded, where it's based or the data's held, or anything much. It might be a one-man operation using spare capacity; that's rather how some described it back when it was being considered as an alternative to for Wikipedia references that would otherwise be dead links. If so, there are questions about whether it can continue to have enough capacity, what happens if the one guy is incapacitated or demotivated, and so on. Or it might really be a secret project of Bill Gates, the Russian government or [insert another wild theory] and the sometimes-named one man is the front. It might be beyond the reach of copyright lawyers, or it might not. It seems all we can really say is that it will "keep things from being erased from history" for exactly as long as it keeps things from being erased from history.

      Or maybe you know a bit more about it and have good reasons to be confident?

  5. Bebu Silver badge


    Public libraries already lend for two weeks, drm protected electronic books that can be returned early.

    What is different with IA? Is it that copyright owners separately licenses this specific use to libraries completely bypassing the analogous first use argument? I am not sure the first use principle exists in the British copyright derived legislation.

    For older titles I cannot see where the money is. I don't imagine Penguin makes a fortune from its paper sales of Capek's War with the Newts or Dorothy L Sayers' translation of Dante's Comedia Divina (perhaps a few quid from Peter Wimsey :) let alone from ebook sales.

    1. doublelayer Silver badge

      Re: Puzzled.

      Most library ebook systems use a different mechanism where the libraries purchase ebook licenses from the publishers. Those licenses have a variety of terms and probably vary a lot by publisher and country. For example, the license can limit how long or how many times the library can lend the book before needing to buy a new license, how many copies can be lent simultaneously, and when the license becomes available. I have heard, for instance, that publishers sometimes don't agree to sell any ebook lending licenses for new releases until the book has been on the market for a while. Therefore, anyone who wanted a copy when it was new would have to buy one. Meanwhile, a library lending out copies on paper could just go and buy some as soon as they hit the shelves.

      The Internet Archive is trying to lend out digital copies of the book without getting a license to do so first. The publishers are trying to argue that owning a paper book doesn't give them the right to do that. Unlike software, it's not as if the publishers put in a EULA before you could buy a book, so whether or not the right exists will depend on laws that were written well before this was conceived by publishers or libraries. The law doesn't say whether that's allowed or not, so both sides are resorting to legal arguments that are tangentially related to the case and hoping a judge will decide one sounds convincing. Maybe at some point a law will be passed to clarify what rights exist and what rights don't, but I wouldn't count on it being soon.

      1. call-me-mark

        Re: Puzzled.

        "it's not as if the publishers put in a EULA before you could buy a book"

        Almost every print book I own has this or something very similar in the preamble:

        "This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, resold, hired out, or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being placed on the subsequent purchaser."

        Seems awfully like an EULA to me.

    2. DuncanLarge Silver badge

      Re: Puzzled.

      > What is different with IA

      They were taking in-print published paper books, scanning them, and lending unlimited copies. Books that were in-rpint and for whatever reason never turned into an ebook too.

      Imagine if they were an independant bank and got hold of the hardware to mint coins and print notes, then just started churning them out to anyone who came by and wanted some.

      DRM based ebooks are limited in number, the library only has a set number they can loan till the time is up and it can be re-issued. A library works fine that way as it serves a very limited number of people, a town and the surrounding area. The IA however is serving the entire globe, thus cant get by on limiting loans to say 50 copies at a time as geting a copy would have lower chances as winning the lottery twice.

      So the said fuck it and let every human on the planet have a copy free.

      1. John Brown (no body) Silver badge

        Re: Puzzled.

        "and lending unlimited copies."

        Not true. It's been made clear in every article I've read on this subject, at least two here on El Reg including the parent article of this comment section, that IA are digitising books they own and then lending out one single digitised copy per book owned,

        1. doublelayer Silver badge

          Re: Puzzled.

          For the record, they mostly did that but did try lending out unlimited copies before. They thought it made sense in the early days of the pandemic in 2020, and it didn't take long for a lot of publishers to get even more angry than they are today.

          This might be one reason publishers aren't willing to settle the matter with the IA, although being publishers, they might have enough profit motive not to settle in any case. The publishers might think that doing something more obviously against copyright law might help their argument that the IA isn't working in good faith, and since the publishers can't point to a specific part of the law that makes the controlled one copy per physical book lending explicitly illegal, they might try using that argument instead.

        2. PRR Bronze badge

          Re: Puzzled.

          > It's been made clear in every article I've read on this subject, at least two here on El Reg including the parent article of this comment section, that IA are digitising books they own and then lending out one single digitised copy per book owned

          AND- many of these 'lend one copy' transactions on Innernet Archive are Time Limited. I found a rare book posted, 800 pages, could be 'borrowed' for TWO HOURS. Then renewed again and again, except it seems (not sure) that if there was another user in queue, they got their 2 hours before it came back to me. If more than one other borrower, I could be on-line reading and sleeping in short bursts for a week.

          In *this* case, 2 hours was plenty to find my one fact, screen-grab the graph, and 'return' it. (But if it had been more thrilling to me, I'd be looking to off-line the file, as I do with videos on porn sites.)

          Years ago I borrowed a digi-copy for a week, which is often reasonable.

          > Digitising rather than photocopying would be no different in my view.

          Yeahbutt. Photocopying at 10c/page tends to be self-limiting. Yes, 35 years ago I Xeroxed most of Tuinenga's SPICE for slightly less than the cover price. Bought a fist-full of $10 copy-cards.. the university library did so much user-copying that they could not manage the dimes, they had a debit card for the copiers. Which were conveniently out-of-sight from any librarian's desk so plausible denial.

          More recently I open-carried a laptop and a slim scanner in a bag into the library Annex where the back-issue journals are stored. Scanned in full sight of the attendant, who I knew to be a midlevel Librarian. My cost to scan about 90 pages out of IEEE was negligible. (Even more recently those papers are online at IEEE at about $2 a page, or $200/year buffet.)

  6. sabroni Silver badge

    re: judge decides digitizing printed titles and lending them out isn't fair use

    judge decides digitizing printed titles and lending them out one at a time like a physical copy isn't fair use


  7. tiggity Silver badge

    Unavailable books

    We have a few generally unavailable books*. They are niche, reasonably old (long out of print), small print run "academic" books & although out of US copyright based on main author(s), they contain some additional text and illustration content by uncredited people and so in a US copyright limbo (though that obviously that will end as there are rules to cover such scenarios) - which means cannot yet readily get a digital download from e.g. Google Books** or similar.

    So, for anyone interested they are hard to access, copies come up to buy rarely (and are expensive), it can take a long time to get them via inter library loan so need to know well in advance that you need access to a copy.

    Fortunately UK copyright law allows limited copying for educational purposes so partner was able to use snippets of these books in her lectures but only viable way for the (smaller cohort of keen) students to read the whole book was to briefly borrow her copies.

    *Not sure if they are still generally unavailable, partner retired from academic career a while ago so a chance they may finally be out of US copyright & digital downloads may be available.

    **Google Books is generally a good source for out of copyright book digital downloads (some of the few good things to say about Google are Books & Scholar), just hampered by using US copyright massively long time spans and always falling back to most restrictive US interpretation of when copyright ends in any cases where there is a bit of uncertainty.

    1. Anonymous Coward
      Anonymous Coward

      Re: Unavailable books

      > they contain some additional text and illustration content by uncredited people

      Would not worry too much about this, work on the assumption unnamed collaborators would have been paid by the publisher. Your main worry is determining when the author died and thus the start of the 70 year countdown and thus whether there is potentially a family or other entity with a claim…

      In collating the unpublished and published works of several generations of the family, we collated “brown envelopes” to show we have made reasonable efforts to determine if a publisher still exists (trading or subsumed into a bigger publishing house) and to track down named collaborators.

      Having done this we simply did a conservation grade scan of the relevant publications and published it on the web within a site that is clearly for historical and education purposes…

    2. wub

      Re: Unavailable books

      *We have a few generally unavailable books"

      This is another of the problems with existing copyright that is relevant to this situation, even if it has nothing to do with digitizing or copying. Publishers have no incentive to keep the contents of unpopular books available. As soon as a book ceases to sell briskly, no new prints runs are scheduled (and for a lot of books, I suspect the first run is the last). If you want to locate a copy of such a work for some reason, good luck. Perhaps it is available in a library somewhere, or on the used book market but there is no way to determine if this is true without searching "in all the usual places".

      The flip side of the situation is worse - let's say you find an out of print book from 50 years ago. For some reason it has become relevant (again), and you are considering making it available - in print or digitally, doesn't matter. Your problem: figure out who currently holds the copyright. The information in the printed book may not be current - the author almost certainly does not own the copyright, and the publisher may have sold the rights on to another entity. There is no central repository for declaring the identity of the copyright owner.

      And for works "of a certain age" copyright might or might not exist, depending on whether the owner renewed it during the periods when the duration of copyright was extended by law.

      We keep track of ownership of trade marks, which to someone who has no law or intellectual property background seems like a reasonable analogy - so why not copyright?

  8. Anonymous Coward
    Anonymous Coward

    Judge is a typical Fed bench moron..

    Having been involved as the primary witness for the plaintiff in a high profile copyright case (starving artist ripped off by high tech company..) many years ago the first thing I did when I read this totally stupid (legally) summary judgment was check the CV of the judge before he started Fed Judging. Yeup, a Wall St corp / securities lawyer with a sideline in DC Swamp Politics legal stuff. Zero relevant background i.p law. Plus the guy is pushing 80. He got his legal education during the 1960's. The classic doddery old fool of a judge.

    And just like the judge we were dealing with the extent of his legal knowledge of the relevant i.p law and case law is what was gleaned in a cursory reading of the legal equivalent of "I.P Law for Dummies". Except the Dummies type books always get both the general principles and the details correct. Shout out to the great guys at Nolo Press.

    Copyright should be Make Available at Reasonable Cost or Lose It. Not Sue Everyone for the next 100/120 years or Lose It. Its case like this that totally justify piracy. Having used the IA's one hour loan for a few years its a great resource to read books and magazines that are completely unavailable any other way. Most of the books I have read using the loan are not even available on Abebooks. And the rest mostly at great cost. What interesting about the IA copies is that so many of them are stamped showing that they were thrown out by libraries. So cannot be accessed there.

    Copyright like patents is little more than big corp rent seeking by this stage. The original purpose long lost.

    1. IGotOut Silver badge

      Re: Judge is a typical Fed bench moron..

      So you're more qualified than a judge who has been trained, has been doing it for years and will have read up on the legislation?


      "Copyright should be Make Available at Reasonable Cost or Lose "

      That's EXACTLY what the publishers are asking for, a reasonable cost (and define "reasonable"). They haven't paid anything for the use of copyright.


      "What interesting about the IA copies is that so many of them are stamped showing that they were thrown out by libraries"

      So they got them for free and paid nothing for them? So you previous point is even more flawed. And libraries often throw out books and get this...BUY new ones.


      Copyright like patents is little more than big corp rent seeking by this stage. The original purpose long lost."

      So so you're fine with Google making billions of unlicensed material?

      1. Anonymous Coward
        Anonymous Coward

        Re: Judge is a typical Fed bench moron..more clueless drivel.

        Some quick questions.

        Just how much *DIRECT* experience do you have of US i.p law and the US legal system over the last four decades? This includes copyright law, patent law and related lawsuits.


        How many US lawsuits in both Federal and State Superior Courts have you been a primary witness for either the plaintiffs or the defendants? You know have to do depositions or write statements of fact? This includes expert witness statements .


        How many US courts cases do you have direct first hand knowledge of where the lower court judge made statements of law in judgements that were subsequently overturned in a higher court as being wrong? One case even went to the Supreme Court. In all cases the judge had no substantive legal knowledge in that particular area of law prior to being made judge.


        Your total ignorance of the subject is shown if you really think judges are somehow "experts" in law. They are mostly experts in court procedure. That's it. You really should hang with lawyers with a lot of litigation history. If you are lucky you get a judge that actually knows the area being litigated. With this particular judge for general corp and securities laws litigation he should be familiar with the area so unlikely to send the clerks off to dig through the law books and write statute and case law summaries for him. This is the South District NY Federal district so most of the cases brough before him should be within his basic legal expertise. But i.p law, forget it.

        Just because you dont have a clue what you are talking about and have absolutely no direct or relevant experience of the subject of how the US legal system works does not mean that some of us have not been directly involved in this area since I'd guess before you were born.

        So, got anymore pearls of wisdom?

    2. DuncanLarge Silver badge

      Re: Judge is a typical Fed bench moron..

      > Plus the guy is pushing 80

      So he knows a thing or two then.

      1. Anonymous Coward
        Anonymous Coward

        Re: Judge is a typical Fed bench moron..old is not best.

        Actually no. Not on this subject.

        Now corp law, trust law, torts etc older lawyers can be a goldmine of very useful information. Because not a lot really changes over the generations. But for any area of law that has been radically impacted by change in the wider world over the the last few decades older is very much worse. And what applies to lawyer also applies to judges. Because judges are just lawyers with very good political connections. Especially the Federal ones. Its a rare Federal judge whose decisions cannot be broadly prediction in political or ideologically contentious cases by which Administration raised him to the Federal judgeship.Its the first thing people who know how the game works do. In this case it was Clinton so as it NY you can be 100% certain it was someone Clinton's NY big business backers would not disapprove of.

        In many ways electing judges is a lot more honest. Almost all judges are purely political appointees. And if you think the situation is any better in the UK, well...

    3. wub

      Re: Judge is a typical Fed bench moron..

      I feel most of us are having trouble keeping a couple of ideas clear in our thinking here.

      The main issue for a judge is to consider the law, and the legal merit of arguments put by both sides. That is the main matter for the court. If the actions of the defendant can be shown to be legally correct, they will prevail in a fair hearing. Of course, the problem is in interpreting the situation in context with the most relevant law. The devil is in the details. I have no doubt that a deep understanding of the specific facts in the case will be of value to a judge in reaching a just decision, but unfortunately it is not a requirement. And it may not be helpful in all cases, since the most relevant law may be just plain wrong.

      I suspect that in this situation, the law needs to be fixed. I hope this case does not destroy the Internet Archive - they do a lot of valuable and completely legal work.

  9. Anonymous Coward
    Anonymous Coward

    Libraries vs "digital lending services"

    A public library is generally a free lending service and as most public lending libraries tend to be operated by city councils and the like.

    A private company even a not for profit is a different matter. Obviously there is an issue with proving you are only "lending" one copy and that . I suppose some sort of NFT might go a long way to addressing that, but I'm not seeing anything like that being suggested. For that to be properly controlled it would need to be generated by the publisher.

    A private company that charges for lending is a different matter altogether. Not sure about US law, but in Britain I'm pretty sure that a lending library that charges to borrow books can't just do so with a retail copy of the book. They have to enter into a different arrangement with the publisher.

    1. The Basis of everything is...

      Re: Libraries vs "digital lending services"

      For UK: I've just grabbed two books at random (Second Variety and The Essential Calvin & Hobbes for those that need to know) and both have the following statement on the first few pages.

      "All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publishers.

      This book is sold subject to the condition that is shall not, by way of trade or otherwise, be lent, re-sold, hired out or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser."

      For USA: I'll have to check back on that - don't have any USA editions to hand although I don't recall seeing any such wording in theirs.

      Which I guess mean IA are bang out of order (that's a legal term apparently) if they tried this in the UK - maybe they'll get sued here too? And also if my kids rip the cover off a book it appears I can't then give the book away. Although if they rip the cover of any of my books I'll likely be wanting to give them away...

  10. Jason Bloomberg Silver badge


    I was reflecting on what law applies to me and a book I have purchased. As far as I can tell I have bought it and can do whatever I like with it; keep it, sell it, give it away, lend it, even burn it.

    What I believe I cannot do is make a photocopy of it, lend that to someone else, or keep that and lend the original book.

    Digitising rather than photocopying would be no different in my view. And seemingly the judge's.

  11. Claptrap314 Silver badge

    Didn't/doesn't Google do a LOT more than IA?

    And back when they were trumpeting "don't be evil"?

    There should have been ample precedent here, one way or the other, but none is mentioned. Something's rotten in Denmark, and it ain't the fish.

  12. Tron Silver badge

    Money always trumps public utility in the courts.

    It is transformative because they can lend a book, virtually, to someone in Afghanistan, who would never see that book otherwise. But as the USG handed the Afghans to the Taliban on a platter, I doubt their courts give a stuff about their access to books.

    It would be unworkable in the UK as we have public lending rights, so when a book is borrowed from a local library, the author gets around 30p from a central fund. Payments are capped at £1 (min) and £6,600 (max). Global virtual borrowing would up end the finances of that.

    Unfortunately, having bitten off way more than they can legally chew, the wayback machine, which is a history of the net in 800 billion web pages, could be wiped in the fallout from this, if corporate lawyers feast on their cash reserves in the traditional manner.

  13. Groo The Wanderer

    That doesn't sound good, but in life, wanting something very, very badly doesn't necessarily make it so - especially when the law is involved.

  14. Anonymous Coward
    Anonymous Coward

    Hoping for reversal

    I really hope this gets reversed on appeal. I've only just discovered this archive recently and it's a fantastic resource.

    I'm not a lawyer but I don't really see the issue given that the books are not effectively being reproduced, only one copy being loaned at a time (for an hour).

    I am reminded of the era when vinyl records came with inner sleeves saying, in huge print, "home taping is killing music". It wasn't. If anything it provided more sales as people, having heard a copy and liking it, would then buy their own copy. It was corporate giants who wanted to completely control the market, charge high prices, keep all the profits for themselves, and who, by their strategies were themselves the ones who nearly killed music. Made me seethe. And this sounds very similar.

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