> In a brief submitted on behalf of the publishers, the Authors Guild argued that Kahle and supporters of the Internet Archive need to "recognize that rights available to owners of physical books simply did not make sense in the digital era," the Times summarized. Digital content is inherently different from print "because it is infinitely copyable and unprotectable," said copyright lawyer Mary Rasenberger, the chief executive of the guild. If "anyone could call themselves a library" and operate like the archive did when they shared copies of physical books, "writers would have absolutely no control over their work anymore," she added.
This has always struck me as a weird argument. Digital does not make copying infinite any more than the Gutenberg printing press made copying infinite. What both inventions did was make copying more democratic, and the instruments of the state and the creative industry had to spend time and money bringing it back under control. "Unprotectable" is a particularly strange argument because part of the CDL scheme literally involved wrapping all the lended-out ebooks with DRM, specifically so that they couldn't be copied further.
What IA (and ReDigi before it) wanted was a world in which copies made to effect the same rights that are associated with physical sale - and no further - were legal. The world in which the publishers and the law lives in is one where burning a book and then printing out a replacement copy is infringing. Which is stupid and petty. Publishers want to point out that the fragility of physical media was the price paid for first sale, but digital copies are similarly fragile. In fact, they're even more fragile because they die when the DRM server they're locked to gets shut down. And nobody was actually delicately balancing fragility against author's rights when first sale was put into caselaw. They were balancing author's rights against owner's rights.
Writers having absolutely no control over their work is laughable. First, because you are publishers. Your business model literally involves taking control away from writers and putting it in the hands of professional marketers and salespeople. Second, because the IA CDL theory doesn't actually take any more control away than what first sale did. You're angry that the 50-year-old campaign you mounted to completely strip everyone of ownership might have been slightly slowed by your own DRM tools.
Anyway, rant over, I'm just glad they decided not to completely burn down the Internet Archive. I can only imagine the RIAA is going to have even more mind-irritating arguments.
It’s a slightly strange article because it assumes that an equivalent of “reading” which it posits is permitted under copyright is somehow free.
It’s not. If you want to consume copyright protected content you need - unless the copyright owner allows you - to make some sort of value exchange. Often the primary application of this is that an author (or creator) licenses their content to a publisher (or distributor) and that publisher pays them a royalty for the use of the content. However, the licence that the author provides will (should) specify what uses are covered by the licence. So if an author grants a licence to a publisher then the licence may allow the publisher to print and sell books - but might exclude the right for the underlying literary work to be adapted as a screenplay. So if someone wants to make a film or TV show of that work they need to revert to the author. The publisher may or may not be cut in on that deal.
This is a primary tenet of copyright: that the copyright owner can control who does what, and only they can grant that permission, and they can sell (or exchange value) for that permission.
It’s a logical leap to say “because the copyright owner has licensed this work to a publisher for people to read it is then ok to use that content to inform composite derivative works using AI”.
To expand on the proposal of the article that a search engine “reading” an article is the same as AI “reading” an article: when a search engine “reads” copyright protected content it is creating a signpost - similar to Dewey Decimal signposting - not (generally, but see google news lawsuits) aggregating the works to create derivative works.
Addressing the google news point there is an argument that a value exchange has taken place - that the publisher is allowing (or excluding) the use based on the utility they get in terms of increased visibility/audience/ad revenue.
If an AI ingests copyright work that is fine so long as the author knowingly permits it and is compensated. However I bet if you said to screenwriters or musicians or journalists “will you licence your work and unique stylistic voice to a company that will create new works that are creatively and stylistically largely indistinguishable from yours” they would say no.
Plagiarism is plagiarism and if a human reads and regurgitates a work protected by copyright the copyright owner may (as has been seen in various song lawsuits - and other creative works related lawsuits) have a case to say their copyright has been abused, and be compensated.
> If you want to consume copyright protected content you need - unless the copyright owner allows you - to make some sort of value exchange
The above claim is readily refuted, since:
1. I can easily borrow books, music, movies, etc. from public libraries, and I don't need to pay anything to the copyright holder.
2. The first sale doctrine also allows me to purchase books, music, movies, etc. without paying anything to the copyright holder.
3. Fair use (e.g. parody, criticism) permits me to use copyrighted works without paying anything to the copyright holder.
4. I can easily listen to music on FM radio without any royalties being paid to the copyright holder of the sound recording (unless they are able to collect songwriting royalties.)
> This is a primary tenet of copyright: that the copyright owner can control who does what, and only they can grant that permission, and they can sell (or exchange value) for that permission.
The above 4 examples are common situations where the copyright holder does not control "who does what."
In all of these cases except fair use, the original purchaser (library, radio station...) has already provided value to the publisher, under terms that allow you to consume it for "free."
I think you're nitpicking that you personally didn't have to provide value, someone up the chain did it for you. But that's clearly included in what OP intended, if not the letter of their words.
As I noted, when I listen to FM radio (in the US at least) there is no specific royalty paid to the copyright holder for the sound recording (such as the record company), or even to the artist – only to the songwriter (or whoever holds the songwriting rights.)
This can sometimes have surprising effects[1].
Confusingly enough, in the US at least, the same radio program will incur different royalty requirements depending on whether it is broadcast via terrestrial radio, satellite radio, or internet radio.
Pretty much none of these are true in every country in the world outside the US - broadly states pay a royalty to authors for library loans, radio stations pay literally billions to play music on FM, fair use is replaced by very specific, limited exemptions and there is often not a first sale doctrine.
>1. I can easily borrow books, music, movies, etc. from public libraries, and I don't need to pay anything to the copyright holder.
The books are provided to the libraries and the libraries lend the books out under the assumption they are for reading. Reading and feeding the contents verbatim into a computer program are two different things.
>2. The first sale doctrine also allows me to purchase books, music, movies, etc. without paying anything to the copyright holder.
You have a right to do whatever you want with the medium, but you do not have a right to do whatever you want with the contents therein.
>3. Fair use (e.g. parody, criticism) permits me to use copyrighted works without paying anything to the copyright holder.
Only under very specific conditions, chief among them being that you use only what is absolutely necessary in small amounts and nothing more.
>4. I can easily listen to music on FM radio without any royalties being paid to the copyright holder of the sound recording (unless they are able to collect songwriting royalties.)
Yes, it is, but I think you've misunderstood my point.
You give four examples that you say contest my statement that "if you want to consume copyright protected content you need - unless the copyright owner allows you - to make some sort of value exchange".
You say that this statement is "easily refuted" and give four examples - borrowing from a library; first sale doctrine; fair use; FM radio. For each of these your refutation is based on the fact that you "don't need to pay anything to the copyright holder", but you're missing the other part of my statement (I'm saying missing because it would be judgemental to think that you are deliberately ignoring this, so am saying missing to mean "possibly forgot to consider") which is that unless the copyright owner allows you. I also maybe did not make a clear enough distinction between "allows you" and "grants permission" - the difference being "an allowed use" versus "a licence".
The copyright owner of a book allows you to borrow that book for free from a library because this is part of copyright law and under first sale doctrine the library is permitted to lend out a copy of a book.
The copyright owner allows the library to do this by selling them the book (and, ipso facto cannot prevent that allowed use) and so by extension allows you to borrow that book for free.
Can they stop this taking place? Not once the book has been sold. But they can control the distribution of their book by, for example, printing a limited edition of 100 copies. Can they control whether those books are then sold to a library to be loaned out? I suspect not.
This also addresses your second point, regarding first sale doctrine more generally. It's important to realise that when we're talking about first sale doctrine it's less to do with the copyright contained within the object and more to do with the alienability of that object or "thing" - the right for one person to sell a thing that they own to another person.
Under first sale doctrine when you buy a book (or other object that contains a copyright protected work, a CD, a DVD, etc) you are not buying the copyright itself, you are buying the object which is the physical manifestation of the fixation of the copyright.
Copyright cannot exist until it has been fixed - written down or otherwise captured, because without fixation it is simply an idea.
So under first sale doctrine you are not buying the copyright itself - and when you sell a book you have bought you are not assigning any rights in the copyright; you are selling the object into which the copyright owner has fixed their copyright and which, through copyright law, they have assigned the right for the owner of that object the right to enjoy their copyright.
If you're the first purchaser of the book then yes, you have transacted with the copyright owner. If you're the second owner, then the transaction with the copyright owner has already taken place and it is their permission (exercised through copyright law) which is allowing you to enjoy their work. If you buy a painting or a photograph - also objects that are the physical manifestation of a copyright protected work - you cannot make a print of that painting and sell it, and you cannot duplicate the photographic work and sell those duplications because you have not been granted a licence to do so, but you can sell the painting or photo you've purchased.
Your argument around fair use is a more valid point - however (and at the risk of being accused of being pernickety and overly legalistic here) the fair use is only possible under copyright law, which, again, brings us back to the fact that the author has exchanged one control in return for the greater protection and greater set of controls that copyright gives.
The FM radio one is a real peculiarity of copyright law - and (as you point out) it does not actually allow for uncompensated use. When music is played on radio, there are two copyrights in play - the underlying copyright in the song, and the copyright in the recording of the song. The songwriter is, as you accurately point out, compensated for the use of their copyright. The owner of the recording was (until relatively recently) generally a record companies whose business was to drive revenue from sales of physical records, and in the US those record companies decided that the advertising value that radio play gave them meant it made sense to forgo demanding a royalty for the use of their copyright. The copyright owner in the recording is (in this case, very literally) allowing the radio stations to broadcast the recording without demanding compensation for their copyright, meaning you do not have to pay.
So, as you can see, the four examples you've quoted are - to my opinion - very much examples of situations where the copyright owner DOES control "who does what". I completely accept that my arguments are pretty legalistic in their nature - but that's what we are talking about, the fine grained application of copyright law. The original article is very much about the fine grained application of copyright law - what constitutes fair use, what falls within "controlled digital lending" and whether what the Internet Archive was doing fell within this, or whether - as the publishers argued, and the court agreed - the Internet Archive was infringing copyright by making derivative works by digitising physical books and distributing those digital copies without adhering to the "one physical copy for every digital copy loaned out".
>it assumes that an equivalent of “reading” which it posits is permitted under copyright is somehow free.
Copyright doesn’t regulate consumption. It regulates distribution. This is why all the law tackles relate to whether or not a party is allowed to give, show, sell, or otherwise provide a material to another. It’s an easy mistake to make because there’s little reason to distribute other than to consume. It’s not a read-right or a look-at-right, it’s a copyright.
>If you want to consume copyright protected content you need - unless the copyright owner allows you
This has been the desperate dream of publishers forever, and thank-goodness copyright doesn’t work this way. Though with locking up of content though DRM and legal protection for breaking that, they get pretty close.
We're all struggling to adapt rules meant for humans and books, to robots and limitless search engines.
Humans read one story at a time and imperfectly remember it; robots can read millions and remember them all.
Books contain static prose; online texts can change and adapt and be rewritten.
What is a 'reader'? What is a 'book'? What is 'one copy'? Who owns exactly what?
It'll take some time to settle on something. In the mean time expect lots of these articles arguing around words they don't define exactly, making similes that don't hold much water.
Normally you go to library and rent the book, later you return it. There are no special payments required here. No special control. Moreover you could have made photos of the books at home, and no one will see. And most marvellous thing about it is that this is fair use. I can make copies of the pages and insert them into e.g. my presentation.
Fair use in US copyright law allows for this with parameters. If your presentation was a work related presentation for a business then although you'd probably get away with it, you would probably not be covered by the provisions of fair use.
The only real solution to our copyright problem is to roll it back significantly. Get rid of DMCA section 1201 and reduce copyright terms back to the original 14 years plus a single renewal.
Implications for generative AI aside, 14 years + single renewal for all copyrighted work seems very reasonable. The world moves at such a fast pace today that 14 years is a long time in which to monetize intellectual property.
And in the worst case, it will mean that AIs are "only" 14 years behind the times, OR, their creators only have to pay royalties for 14 years worth of human knowledge.
If they reduced the copyright term to 14 years today, they would do it as a "14 years of copyright, then the state gets an enforced perpetual paying public domain subject to royalty in use cases that apply to usual copyright royalties", not like "14 years of copyright, then free for all".
This suggestion is a fantasy and would imply leaving the Berne Convention and TRIPS ( Agreement on Trade-Related Aspects of Intellectual Property Rights ) which is part of the WTO.
Doing this only in the US would put our intellectual property in similar company as North Korea, South Sudan, and Turkmenistan.
You're right about it being a fantasy but not because the WTO has the power to overrule the US. It's because the political class of the US put those clauses in TRIPS for the benefit of the US people in aggregate - i.e. the "we're better off with draconian copyright law if it keeps China on a leash" argument that is implied when people complaining about "China stealing our IP".
If the US actually backed out of TRIPS you would see a large number of countries either following or being amenable to following them out. Most countries are net-payers into the current copyright system, which is designed to leash everyone else to rich countries, and would love not having to pay into it anymore. The biggest hold-outs would be the EU and Japan. It's important to note that the last copyright term extension was just as much Germany's fault as it was Disney's and the EU could easily propagandize[0] against a low-copyright or copyright-free US. And Japan is run by a right-wing corporatocracy called the LDP that constantly wins because nobody in Japan actually votes[1].
[0] The reason why it's easy is long and complicated, but basically, resentment of America goes back centuries and is a weird meme of the monarchy that cross-pollinated into every other political ideology of Europe.
[1] Which, to be fair, also applies to America. The difference is that the LDP's opposition is the Japanese Communist Party - which means the LDP was an American puppet while the JCP was a Soviet one.
> we're better off with draconian copyright law if it keeps China on a leash
The irony of this argument is that China is seemingly undeterred by any of these treaties. As long as China is the manufacturing hub, they can do what they want anyway.
We're so far down the absurdly long copyright duration nonsense that any proposition of a reasonable duration is labelled as "fantasy" and compared to north Korea, that's a bit scary.
This has always struck me as a weird argument. Digital does not make copying infinite any more than the Gutenberg printing press made copying infinite. What both inventions did was make copying more democratic, and the instruments of the state and the creative industry had to spend time and money bringing it back under control. "Unprotectable" is a particularly strange argument because part of the CDL scheme literally involved wrapping all the lended-out ebooks with DRM, specifically so that they couldn't be copied further.
What IA (and ReDigi before it) wanted was a world in which copies made to effect the same rights that are associated with physical sale - and no further - were legal. The world in which the publishers and the law lives in is one where burning a book and then printing out a replacement copy is infringing. Which is stupid and petty. Publishers want to point out that the fragility of physical media was the price paid for first sale, but digital copies are similarly fragile. In fact, they're even more fragile because they die when the DRM server they're locked to gets shut down. And nobody was actually delicately balancing fragility against author's rights when first sale was put into caselaw. They were balancing author's rights against owner's rights.
Writers having absolutely no control over their work is laughable. First, because you are publishers. Your business model literally involves taking control away from writers and putting it in the hands of professional marketers and salespeople. Second, because the IA CDL theory doesn't actually take any more control away than what first sale did. You're angry that the 50-year-old campaign you mounted to completely strip everyone of ownership might have been slightly slowed by your own DRM tools.
Anyway, rant over, I'm just glad they decided not to completely burn down the Internet Archive. I can only imagine the RIAA is going to have even more mind-irritating arguments.