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It is ultimately judgment calls by human beings that make the determinations. However, I don't see how you can read this opinion and think that the judges are j
by indigovole 2y ago
It is ultimately judgment calls by human beings that make the determinations. However, I don't see how you can read this opinion and think that the judges are just making their minds up on the spot. Every single decision point in this opinion goes back to prior cases and either explains why they apply or distinguishes this case from them to explain why they don't.
- It's not like Campbell/Rose-Acuff (2 Live Crew v Roy Orbison, the "Pretty Woman" case) because IA's ebooks are not parodies of the original works. They _are_ the original works.
- It's not like Sony (the Betamax case in which whole-work copying was found fair because it enabled time-shifting), because there's no sufficiently different use that's not supported by the original copy. You read the book, you read the IA scanned copy.
Courts have judgment, but within parameters. The Copyright Act itself spells out four factors for evaluating whether a use is fair, and both courts found that it failed on every factor. The judge can't say, "well, but I still believe that the use should be fair anyway"; that would be an instant reversal and remand, with instructions amounting to "follow what the law says, dummy."
This was never really a close call based on prior cases. Transformative use has almost never been "exactly the same work used exactly the same way, but digital." Cases that have tried to make that argument have failed again and again. The "our enforcement ensures that only one person is using the copy at a time" has been tried before as well, and has consistently failed. Back in 2020, my heart sank when I saw IA's announcement that they were doing this, because I was certain that they would be sued for it, and that they would lose if they were. I can't stress enough how obvious these rulings have been if you expect the courts to do what they ordinarily do-- find similarly in similar cases.
The Supreme Court can discard all that precedent - they've certainly made a habit of that lately - and create new case law, along with an explanation of the way that they evaluate the factors to find that way. They may in fact do so; they've done that a couple of times in recent decades. However, they don't take many cases, and this case is so clearly in line with past cases that it's hard to see why they would take this one.
- ranger_danger 2y ago>In sum, IA has not met its "burden of proving that the secondary use does not compete in the relevant market" How does this same thing not apply to physical libraries then? Even if the scope were limited to books IA itself owns (which they still denied anyways), why should one-to-one digital lending be any different than physical in-person library book lending?
- pcaharrier 2y agoBecause (at least under current law) that's not quite the same as what libraries are doing as explained here: https://news.ycombinator.com/item?id=41448376 https://news.ycombinator.com/item?id=41448376
- Aloisius 2y agoPhysical book lending doesn't involve making copies at all, so copyright law doesn't apply. That said, some libraries do lend scans of materials and libraries copying materials on microfilm has been done for ages. Interlibrary loans are done frequently with copies. Hell, the Library of Congress does it.
- deleted 2y ago[deleted]
- ghaff 2y agoI'm not sure I see the problem with one-to-one digital lending modulo the possibility of the reader potentially making copies for essentially free. However, there's a ton of legal precedent for lending out purchased physical copies of things. Certainly there's no precedent for the unlimited lending that triggered the current legal woes. Previously a lot of what the IA didn't really have a legal foundation but mostly slid under the radar because it generally seemed reasonable.
- indigovole 2y agoThe physical object can be passed around without copyright coming into play. Copyright law has special provision for interlibrary loan, and archival copies. There is nothing in the law that supports making a digital copy and and using technical safeguards to transfer it to exactly one person at a time - except licensing under the exclusive rights of the rightsholder. Congress could write something into the law to support this kind of digital lending. However, Congress has been largely unable to accomplish anything interesting or innovative for a long time now, outside of a couple of flagship goals for one party or the other. Copyright law hasn't seen a substantial revision since the Act of '75, and ... a few ... things have happened since then. [DMCA added some new provisions for anti-circumvention and for safe harbor, but it didn't add new exemptions that most people care about, or modify the exclusive rights in any way.] The entertainment/publishing industries have usually gotten what they want in past revisions, but by now the tech industry is pretty strongly on the opposite side. It would be interesting to see what kind of crazy-quilt changes got patched together in a significant revision.