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Internet Archive sued by big publishers
#11  Pajamaman 06-04-2020, 08:33 PM
But the big five publishers can price fix ebooks via cartels. That's legal.
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#12  SteveEisenberg 06-04-2020, 10:42 PM
Quote tubemonkey
About time! They should've stuck with public domain. Now they risk losing it all . . .
The pre-COVID one owned book, one borrower, at one time, model seems to me the same as a paper book library, except that they honor takedown notices. I doubt they’ll lose anything except the ability to operate in their COVID mode.

Then, juries are unpredictable.
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#13  Quoth 06-05-2020, 04:13 AM
See also https://www.theregister.com/2020/06/01/publishers_sue_internet_archive/
and the comments.

I've never suspected IA of being Government backed. It does have one Mirror in Egypt and it's more likely to be backed by someone like Google, who cares about copyright on their own material but encourages piracy by their policies on Google Books/PlayStore and YouTube. Google should never have won the case about scanning and the way they use the scans breaks the intent of what they claimed.

US Court case over Google Scanning EVERYTHING and their concept of Orphan works:

Quote
The problem is that Google books is supposed to show only a partial preview as it might be copyright. The Fair Use argument that Google used. They do basic OCR of the entire book so as to use it for search. Google search is now poisoned with Google Books. Google Books ALSO includes 3rd party books being sold via the PlayStore.

Unlike Amazon, Kobo, Smashwords, Apple etc, Google decides to show the section from where the search hit was. In theory it's possible to download a complete book that's copyright via Google Books, because their algorithm is more designed to aid Google Search than comply with copyright fair use.

They can get commission from adverts and links selling the books and results in Search. That's why the great copyright rip-off of Google Books exists. They even had to block the bit where 3rd parties upload to Google Books to sell via the Playstore. Unlike real ebook sellers they were encouraging PDF as the default, allowing scans. Pirates cut the spine off and ADF (only sometimes with basic OCR for search).

The Court settlement shows how the USA favours big corporations over little people.
No, the Open Library has never operated the same as most Libraries outside of US. They pay royalties (paper or ebook or audio) based on number of loans. The Authors, not publishers get these.
Also real libraries buy real ebooks at library prices (which can be more or less than retail) and can licence for whatever number of simultaneous loans that they want.
The IA scans real books, been doing it over a decade. Unlike Gutenberg they don't care about copyright. They don't proof, only an automatic OCR to aid search or "fake" ebook versions. Just like Google. They don't acquire ebooks the same way as USA libraries. They are parasites.
Quote
The pre-COVID one owned book, one borrower, at one time, model seems to me the same as a paper book library, except that they honor takedown notices.
I'm not convinced that they have reliably honoured take down requests in the past.
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#14  pwalker8 06-05-2020, 05:32 AM
Quote fjtorres
Read again.
I'm not talking about creator's choosing Creative Commons or any of the OpenSource licenses. Those creators are exercising *their* right under the law. And I explicitly excluded them. They are part of tbe system the IA thinks they can obviate. They can charge whatever they want, including nothing. They created it, they own tbe copyright. *They* are entitled to do anything they want with it.

I'm talking about the online chatterers and "activists".
And the people who listen to them and buy that hooey.

Those aren't entitled to "public domain" somebody else's property just because "information wants to be free" or because they can make money off sleazy ads on a sire ful of torrents. Pirates are pirates however tbey style themselves.
Plenty of people who oppose IP produce works of note, which is what you said didn't occur. You seem to be confusing those who say "I should be able to take whatever I want for free" with those who oppose IP. They are perhaps a subset of people who oppose IP, though I also suspect that many don't oppose IP per se, they just want free stuff.
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#15  fjtorres 06-05-2020, 06:29 AM
Quote Quoth

I'm not convinced that they have reliably honoured take down requests in the past.
There is ample annecdotal evidence they don't.

Even if they did, their default opt-out approach has beeng rejected in court on this side of the pond along with the "orphan works" money grab by the Author's Guild "settlement" with Google that the judge threw out for lack of standing: the AG had no right to appoint themselves representatives of the wider class of authors, rather than the tiny part that is their membership.

IA can't claim even that.

As for the Google lawsuit, people keep misreading/misrepresenting the legal case itself. The actual legal issue being litigated was that Google, in order to provide book excerpt snippets in their search engine, created a database of scanned and indexed books. The AG position was that any use of the books other than individuals paying for the book was illegal.

After pruning away the irrelevancies and money grabs, the ruling was that inasmuch as Google's database was not distributing the scans and merely using it for internal purposes, to generate the excerpts (which are *explicitly* permitted under Fair Use legal doctrine) Google was not *distributing* anything that wasn't permitted by Fair Use.

That. Is. It.

The IA is taking the contents of *their* database and contributing entire books from it, pretending that if a <1% snippet is legal, so is 100% of the content. Disingenuos at best.

As pointed out above Fair Use is all about *limited* use. And distribution. And it applies to each individual item at issue.
There is nothing limited about the use the IA puts each copyrighted item to use. Even one user at a time, it is illegal to distribute the *entire* contents of the book without explicit permission.

The crime, as determined by the court, is the distribution, not tbe scanning.
Mass distribution = mass violation.

Everything else is just smoke and mirrors meant to obscure.
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#16  Quoth 06-05-2020, 09:01 AM
Quote fjtorres
The actual legal issue being litigated was that Google, in order to provide book excerpt snippets in their search engine, created a database of scanned and indexed books. The AG position was that any use of the books other than individuals paying for the book was illegal.

After pruning away the irrelevancies and money grabs, the ruling was that inasmuch as Google's database was not distributing the scans and merely using it for internal purposes, to generate the excerpts (which are *explicitly* permitted under Fair Use legal doctrine) Google was not *distributing* anything that wasn't permitted by Fair Use..
Except Google IS indexing the entire book and what they are doing is far beyond fair use. It's possible to download the entire book, because unlike a snippet for a review, quote or research work, the entire work is indexed and live on their servers, completely. Stupidly they also seem to use features of the client's browser. Google misrepresented what they are doing as Fair use as they are monetising the entire text with their search engine.
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#17  fjtorres 06-05-2020, 10:38 AM
Quote Quoth
Except Google IS indexing the entire book and what they are doing is far beyond fair use. It's possible to download the entire book, because unlike a snippet for a review, quote or research work, the entire work is indexed and live on their servers, completely. Stupidly they also seem to use features of the client's browser. Google misrepresented what they are doing as Fair use as they are monetising the entire text with their search engine.
No, by American law making a derivative is not by itself a crime. Particularly when it in no way diminishes the market for the original or directly competes with it. There is nothing wrong with monetizing the entire text, off-camera, as it were. The crime is, again, *distributing*.

(You familiar with "Clean Room" reverse engineering of software? Done right it is legal. There, Google didn't do it right. Different case. And they rightly lost.)

What you are used to seeing in copyright and fair dealing is not how copyright and fair use work on this side of the pond.
It has to do with the rationale for copyright on both sides.

Euro copyright is about enriching creators for their work. They create, they get paid. Period.

American copyright is about encouraging creation for the common good. It's Constitutionally established, too. The temporary monopoly on the product is just a means to that end. As a legal corollary, the Fair Use framework has naturally emerged from that intent and with it, over time, its four legal tests pointed out above.

Is google monetizing other people's creations? Yes, but they're not competing with them, taking sales and money away from them in any way. Instead they are taking the existing content and they are creating something new, something entirely different for an entirely *different* purpose.

That is *exactly* what Fair Use is for. It allows the creation of parody, pastiche, critical analysis, and yes, indexes and even abstractions. Fair use is why we have Nero Wolfe, Jules deGrandin, and other "consulting detectives" and had them while all of the Sherlock Holmes books were under copyright. They met the tests.

It is also why we have THE WIND DONE GONE...

https://www.rcfp.org/publisher-can-release-gone-wind-parody-novel/

...among many other things.

Like Super-folks:

https://en.m.wikipedia.org/wiki/Superfolks

There are generally clear limits to Fair Use, though:

Like the convoluted and ironic history of the first, true Captain Marvel:

https://en.m.wikipedia.org/wiki/Captain_Marvel_(DC_Comics)

DC comics and Fawcett fought a ten year fight over Billy Batson's alter ego for good reason. While tbe character himself was somewhat different from Superman, the covers of some of *comics* that featured him were admitted direct copies of earlier Superman covers. That sent beyond inspiration and failed the transformation test.

(As it ended up, DC now owns the copyright to both charwcters and their published stories, but not the trademark to Captain Marvel, which Marvel squatted on in the 60's. They've kept it by publishing a steady stream of different characters with the name, all with indifferent results. But enough to keep the trademark. Trademark law is a whole different framework.)

So back to Google and the IA: Google's database passed the tests, it was ttansformative, it didn't compete with the content it was derived from, it wasn't created as a mere copy, and it didn't lead to the distribution of anything but quotes. Yet it helps people find books tbey can then buy.

Google makes money providing a new useful thing and cfdating it was not trivial.

In contrast, IA's aren't substantially transformative: today it is trivial to digitize a title into ebook form. Anybody with a scanner and a couple hours can do it.

On the other hand, they aren't distributing trivial bits of the content but the entirety of it. And by giving it away they are competing with legally licensed instances of the product and the stated intent of degrading copyright law is by implication meant to reduce the value of tbe original.

That's four for four tests that Google (love 'em or hate 'em--and I'm closer to the latter) passes and IA fails.

It's not even a pale shade of gray.
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#18  pwalker8 06-05-2020, 03:02 PM
Quote Quoth
Except Google IS indexing the entire book and what they are doing is far beyond fair use. It's possible to download the entire book, because unlike a snippet for a review, quote or research work, the entire work is indexed and live on their servers, completely. Stupidly they also seem to use features of the client's browser. Google misrepresented what they are doing as Fair use as they are monetising the entire text with their search engine.
Fair Use was an exception to the copyright law that was carved out by judges and later codified. Basically fair use is whatever the judge says it is. In this case the judge decided that indexing should be considered fair use. American copyright law is very different than European copyright law.
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#19  barryem 06-05-2020, 07:28 PM
Copyright is obviously the law and making copies of copyrighted material and distributing them without persmission is obviously illegal. But real life is rarely that simple.

Copyright law in the USA is based on the Constitution giving rights to creators for a limited time. The same people who created that constitution set that limited term at 14 years and allowed a single 14 year renewal. Given that most books stop selling after a few months, a year at most, with only very rare exceptions, that seems like overkill but it's what they set so that's that.

Of course copyright holders can make a little bit more every now and then if that's increased so they set about lobbying for those increases and they got them, over and over and over again. Unfortunately we readers don't have lobbyists.

Now we've reached the situation where books have a very good chance of being forgotten and usually are before they become public domain. Very nice for the publishers.

What the publishers did was, at least on the face of it, legal. It probably involved a lot of illegality to get it done, trips and girls and parties for congressmen and senators, but I don't actually know that. I believe it's probably true.

I like the idea of writers getting paid for their work. I love reading and I want good authors to write good books for me and for that to happen they need to make money from it. But it wasn't the authors who got the copyright terms increased. I'm sure they were happy about it but it was the publishers who got it done. It's kind of hard for me to feel sorry for the publishers or to care a lot about their rights. In the past publishers made it possible for me to have books to read but that hasn't been true for a long time.

The world of books is changing. I'm not sure it's for the better but maybe it is. And maybe it isn't. The publishers are stealing from us and from the writers. They're mostly doing it legally though not always. They cheat a lot.

Another example of cheating is the large number of new books by dead authors, or even live authors hiring ghost writers, such as James Patterson. This is terribly dishonest.

The fact that there's so much swindling in the publishing world doesn't give anyone the right to steal from them. We need more honesty, not less. But if we're going to complain about dishonestly let's complain about the big, long term dishonesty and not the good guy who's now maybe doing something wrong to make a point. Maybe he'll make his point. Maybe he'll lose everything but if he does we lose a lot more.

Barry


Barry
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#20  SteveEisenberg 06-05-2020, 09:18 PM
Quote pwalker8
Basically fair use is whatever the judge says it is.
Yes, although the publishers want a jury trial - check page 52:

https://assets.documentcloud.org/documents/6935704/4388-1.pdf

I wonder if there’s some deep significance to wanting a jury. Is that normal for a case like this?
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