Why should IA get to attribute to itself the inventories of closed public libraries that had no association with IA? What if those libraries wanted to engage in their own digital lending?

It's like the difference between short selling (legal) and naked short selling (illegal). The reason the latter is illegal is because it involved acting as if you owned something that you didn't actually own.

If the IA wanted to treat other libraries' books as its own for the purpose of CDL, they should have (temporarily) acquired a right to do so by entering into an agreement with those libraries.

It's crazy to think that any one entity can unilaterally claim that it is the conduit for distribution of the titles of other libraries besides its own, shuttered or not.

My library is closed between 5pm and 10am every night, and twice a week during the day. Should the IA be able to temporarily claim my library's inventory as its own during those periods?

> Why should IA get to attribute to itself the inventories of closed public libraries that had no association with IA? What if those libraries wanted to engage in their own digital lending?

It was reasonable to expect that most of them didn't have the technical capacity to accomplish that in the available timeframe.

> It's like the difference between short selling (legal) and naked short selling (illegal). The reason the latter is illegal is because it involved acting as if you owned something that you didn't actually own.

The reason the latter is illegal is that the person you borrow the stock from is getting paid interest to compensate for the risk you become insolvent before you give it back, but the person you're selling it to isn't.

The author is at no risk of "losing principal" in any analogous way.

> If the IA wanted to treat other libraries' books as its own for the purpose of CDL, they should have (temporarily) acquired a right to do so by entering into an agreement with those libraries.

They were closed and possibly unable to be contacted (you call the phone number of a closed library and there is nobody there to answer it), and it was an unexpected event that was having immediate consequences whereas that kind of negotiating was likely to have taken longer than the duration of the emergency to complete.

> It was reasonable to expect that most of them didn't have the technical capacity to accomplish that in the available timeframe.

So what? Just because the owner can't respond in a given timeframe does not give a you (or anyone) the right to appropriate other people's property. By your argument at the height of the Covid lockdowns I would be justified in taking your car & loaning it out to people because you weren't using it and didn't "have the technical capacity to accomplish it in the available timeframe."

The fact that it was a license that IA was assigning to themselves rather than a physical object makes no difference whatsoever.

> Just because the owner can't respond in a given timeframe does not give a you (or anyone) the right to appropriate other people's property.

Inter-library loans are common. It was reasonable to think that more than enough libraries would have agreed to provide the number of books they lent out if it was feasible to contact them.

> By your argument at the height of the Covid lockdowns I would be justified in taking your car & loaning it out to people because you weren't using it and didn't "have the technical capacity to accomplish it in the available timeframe."

That would have deprived the vehicles owner of the use of the vehicle, and created a risk that it could be damaged or worn out through use. You're using an analogy that hinges on the very thing that makes copyright different than personal property.

Also, doing things like that often is permissible, even with personal property, in an emergency.

Yes, we throw a lot of the normal rules out the window in an emergency.

However, to me (and the law), an emergency is "someone is going to die or be seriously injured, and imminent intervention is needed to prevent that."

I know that it sucked that most public libraries were closed for several months.

But nobody needed a copy of my book "Experimenting With Babies: 50 Amazing Science Projects You Can Perform on Your Kid" to prevent imminent serious harm.

If reading my book could have prevented injury or starvation, sure. But there was no "literary emergency" here that required pirating copyrighted material as the only reasonable response.

> I still don't get why people hate this so much.

Because it was such an own-goal. They were obviously going to get sued for it, and they were probably going to lose. Some people might not like that it, but it is the reality of the situation. How did they think it was going to end?

> They were obviously going to get sued for it, and they were probably going to lose.

They didn't think they were going to lose. They're spending resources to appeal this right now, and it's not because they think it's completely hopeless.

There is also some strategy in the provocation, because in order to establish a precedent that the original version of controlled digital lending is allowed, they'd have to get sued and win, but they'd been doing it for a while and nobody sued them. They had to push the envelope enough to get into court and it seems weird to get mad at them for dancing near the line when doing that is inherently necessary to establish a precedent.

And your argument is essentially circular. They should lose because they'd probably lose? But why? Did any libraries stop buying books as a result, depriving publishers of revenue?

> And your argument is essentially circular. They should lose because they'd probably lose?

That's not what I said - I said they shouldn't have done what they did, because they will lose.

Which is implying that they should lose, but why should they lose?

Because they violated the law? You're expecting the courts to write new laws from whole cloth here if you want IA to win. The courts don't do that, that's the job of Congress and the Senate.

They can assemble multiple pieces of law (both actual law and prior case law) to create a new precedent (aka case law) but there's no prior case law or actual law that makes what IA did legal.

That's why IA should lose according to the law (y'know, the terms being talked about, your own morals and views don't matter in the eyes of it), even if I think in a just world, IA should just've gotten a slap on the wrist and a warning to not do it again.

> You're expecting the courts to write new laws from whole cloth here if you want IA to win.

They're arguing that it was fair use. Fair use is pretty clearly the law, it's 17 U.S. Code § 107.

But the law sets up a balancing test with a bunch of factors, which makes it open to interpretation and means you have to make the case for your preferred interpretation to the court.

Which you can only do after doing the thing and getting sued, because otherwise there is never a court opinion establishing the law one way or the other.

Maybe that's absurd -- maybe you should be able to find out if something is illegal or not before you do it -- but now you're arguing that the law is absurd, not that the absurd mechanism isn't actually the law.

Yep. As someone who had previously donated to them, I felt betrayed that they'd jeopardize their very important and virtually one-of-a-kind internet archive in order to pull a stupid stunt where they practically admitted that they were breaking the law. How am I supposed to trust them to responsibly manage their collections and money now?

If you want to blatantly break copyright law to make a point, and hope that you'll somehow get off by asking the judge nicely, do it in some isolated org please. Not with the wallet of a major modern museum

Well said. I'm willing to overlook the copyright issues with the archive itself because it's so valuable to everyone. But when they're openly trying to destroy artists, writers and publishers I part ways.

Because it's a tactical own-goal. Fair use as a defense looks at the market factors and the Emergency Library did damage the possibility of that defense while it was active; IA suddenly was giving out unrestricted copies of books they own. I can't do that with my digitally owned music without being seen as a pirate and fined for it - what makes IA different? Sure they have standing as a library in the eyes of the US government which gives them some defenses against the DMCA, but that still requires respecting the DMCA. The Emergency Library in that regard was no different from something like LibGen or the many other book piracy sites out there. It being temporary doesn't really change that.

That aside, to my understanding the failure of IAs version of CDL was established during fact finding but I think if the IA hadn't so blatantly just decided to disable all lending restrictions, the courts would probably have been willing to chalk it up to typical organisatorial negligence and left it at that.

It's just a very stupid move on the whole and frankly actively dangerous when you consider the other main service that IA operates (the Wayback Machine). The only defense the IA really has is "we're so essential to the modern internet that we shouldn't be punished for breaking the law", which I don't think the courts are gonna look very highly at.

And mind you that I say this as someone very sympathetic to wanting a more lenient look at modern copyright. It doesn't change that the IA decided to poke a dragon and got burned. There's better ways to advocate for change than to expect the courts to not follow the law because you want them to put in a new exemption for you.

> It being temporary doesn't really change that.

Why not?

If it was permanent then one library would buy one copy of each book and everyone would be able to borrow it forever, so no library would have to buy another copy of the same book.

If it's temporary then libraries will have had enough copies for the typical number of people who borrow them at any given time, even during the period when the emergency library was operating, and would continue to buy them because a book is a decades-long investment for a library and they would reasonably expect to continue to need the same number of new books going forward as they always did before.

Essentially the emergency library would cease to exist before it had a meaningful effect on the purchasing behavior of libraries. Being temporary makes all the difference in the world.

I think this gets into the usual what's right versus what's illegal.

I think you can construct a thoughtful argument that IA's Emergency Library provided more of a service to the public than it cost publishers/authors, and that it was the right thing to do because of that. People are alone and depressed and need something to lift their spirits, kids aren't in school and need to learn, etc, etc. We all gave things up for the common good during COVID. The effects on publishers and authors weren't ideal, but no part of COVID was.

There's an orthogonal question of whether what they did was legal, and it's much harder to make a salient argument that it was.

> So the argument is that because it's an emergency and temporary, they can go on an approximation instead of having to do the exact accounting during the emergency situation.

This doesn't have any legal basis that I'm aware of. Individuals and organizations don't get to decide whether an emergency deserves loosening of laws. The intent is that Congress would do that (not that I think recent Congresses would be capable of reaching an agreement, but that's the intent). Congress would say "yep, this is an emergency and getting reading material to people is important, so we're loosening lending rules for X months".

The system is dysfunctional, but it's still not going to let IA decide how the rules apply to them.

I think the best case, and what I'm hoping for, is that the judge recognizes that IA was trying to do something good for the public and that they get a "don't do that again" slap on the wrist. Give them a fine, force them to work with publishers on some kind of auditing system for the lending, and let them get back to their work. It's important work, even if they occasionally overstep their bounds.