While we are deeply disappointed with the Second Circuit’s opinion in Hachette v. Internet Archive, the Internet Archive has decided not to pursue Supreme Court review. We will continue to honor the Association of American Publishers (AAP) agreement to remove books from lending at their member publishers’ requests.
We thank the many readers, authors and publishers who have stood with us throughout this fight. Together, we will continue to advocate for a future where libraries can purchase, own, lend and preserve digital books.
We agree that the court case sets a very ugly precedent for libraries like archive.org (and ours). Before you go banning and taking down tens of thousands of items in mad rush, please do seriously consider our comment made shortly before the attack that took you down for two weeks:
https://blog.archive.org/2024/09/21/lending-of-digitized-books/#comment-492068
When a publisher reprints something in 1975 that was originally published in 1885 it does not grant a new copyright on any pre-existing public-domain material. There are countless examples (many thousands) on this site of the type of thing mentioned in the above post. When a new edition of a public domain original is issued, the only thing covered by the copyright claim is the new material added which must be at least somewhat original in nature to qualify. This should be made clear in the copyright registration (though they sometimes fail to do so). It should not be solely for a new typeset (in the US and many countries) but only for new additions such as commentaries, annotations, illustrations, prefaces, afterwords and the like. If someone redacts the newly-added material the 1975 print is fine as its reduced to merely a new typesetting of the 1885 original (sometimes a publisher doesn’t even bother to produce a new typeset but literally reprints the old one) – thus with the identical content as the original.
IMSLP is of course a much smaller site in terms of the sheer number of items in our library. We’re highly specialized after all (music scores, for those who might not be familiar). We have a team dedicated to this kind of thing and we’re always busy at it. We know all about the various games played by publishers. Take a page from our book please. Archive.org has a lot of community goodwill and there are no doubt folks with time to volunteer and do some curating to redact only the kind of newly-added thing mentioned above. Hachette el al really don’t want a public domain. They just want to control everything – despite the fact that they’re clearly benefitting from things in the public domain – just take a look at this short list taken from your own list of “banned books” affected by the decision:
“The Adventures of Huckleberry Finn” by Mark Twain (first published 1884-85)
“The Awakening” by Kate Chopin (first published 1899)
“An American Tragedy” by Theodore Dreiser (first published 1925)
“Candide” by Voltaire (first published in 1759, also in English translation, again in English 1762)
“The Decameron” by Giovanni Bocaccio (written ca.1353, published in English by 1620)
All five of the originals are public domain worldwide, even the two translated into English. Yet there they are on the list. Yes there are certainly derivative works which are very much under copyright – like Bernstein and Sondheim’s “West Side Story” – based on “Romeo and Juliet” but obviously recast, transformed and adapted in such a way that it’s a work on its own. That one won’t be showing up at IMSLP for quite some time for obvious reasons.
That being said, publishers have been known to put up “scarecrow notices” on plain old reprints containing nothing at all outside the original. In the US, these are technically illegal. With all the lawfare they’ve conducted over the decades, they’ve got countless folks gaslighted into thinking every claim made is a valid one. As the lyric of a famous song goes: “It ain’t necessarily so.”
That’s a great point about the older reprints. If the publishers can claim copyright based on some transformative aspect like repagination or changing the font or whatever, wouldn’t digitizing be transformative too?
And I’d be happy to help sifting through those if needed.
I do not understand what is going on here. Is this why a lot of the books are no longer available to check out? I am truly disappointed if this is the case. I cannot use digitally printed books nor can I leave my house. And on top of that I have no income at this time so I am unable to pay for a digital subscription for books. Where does that leave someone like me being able to check out any books on-line? The Internet Archive is my go to source to check out books. I do not watch TV or movies. I read, and read, and read. or have someone read to me through your site, the Internet Archive. This makes me very sad and truly disappointed in the publishers. Why is this happening?
I love and frequently use the Internet Archive, but please remember that with a public library card, you can access thousands of books, movies, TV series, and music through apps like Hoopla, Libby, and Canopy at no charge.
Your local library likely has a subscription to an e-book service if you are located in the United States. I would try that as an alternative if Internet Archive isnt working out.
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We thank the many readers, authors and publishers who have stood with us throughout this fight.
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As one of the many readers who relies upon the Internet Archive for work and play, I wanted to thank you for taking the part of libraries around the world and speaking against corporate ignorance and greed.
Had this case been fought on the basis of facts, and the courts acknowledged that CDL does not deprive the publishers of anything, the IA would have won handily. Instead, the case was all about laws that were written by politicians wbo are clearly in the pockets of the rich and who feel no obligation to help anyone who isn’t ready to write them a large cheque.
It is the way of things. However, the Internet Archive did what it could and for that it should be lauded. No one else had either the guts or the resolve to take on the big publishers (and not just once, but *twice*).
The problem here was archive.org relying upon the ‘fair use’ exception mentioned in the US law. Courts have been setting very strict limits on fair use almost from the day the present law came into force (1978). One way to change things would be some common-sense copyright reform. This also applies to the action brought by the recording industry against archive.org. Just off the top of the head, here are some baby steps to push for:
1. Carve out some more exemptions under fair use – like digital loan of electronic copies lawfully owned. Courts have narrowed fair use to the point of absurdity.
2. Repeal the 1998 Sonny Bono law, or at least repeal all of the extensions applied to pre-1978 published works. If this happened, we’d be celebrating 1949 works getting out of jail instead of the 1929 ones in a couple of weeks. Adjust the obscene law passed in 2018 pertaining to pre-1972 recordings by immediately placing such sound recordings under the federal statue directly. One of the very finest congresses that money could buy pulled quite a trick by creating a federal performance right (ex nihilo) for such recordings and sneaking in a de-facto term extension of up to 105 years for some while technically leaving the copyright in the sound recordings under state laws. Sound recordings are derivative works at the end of the day and should be treated as such.
3. Enact the Rule of the Shorter Term for works of non-US origin as per the provisions of the Berne Treaty. This would help in curtailing ridiculous claims like those made on works of Voltaire, et al.
4. Amend the law so that those making false claims of copyright can be sued just the same as those sued for infringement (200K per violation, plus lawyer fees), and subject lawyers filing such bogus claims to serious financial penalties. This would discourage the lawfare crowd.
As a user for both personal research and reading (and viewing and listening), and as a volunteer for Distributed Proofreads/Project Gutenberg (who use your scans of out of copyright books to make accessible digital editions) I understand. There’s only so much non-profits can do above and beyond their core purpose, and you have certainly gone very far in the fights against idiocy and greed.
For now I am happy that Internet Archive exists at all. What you do have available for the public is still one of the best resources for information and preservation.
Why, though?
Why are you not appealing?
i guess with the cyber attack on the site i think it best for now hopefully in the future they might appell to the supreme court
That’s because the Supreme Court, with its conservative majority, will most likely quash the appeal.
As someone who is not a lawyer by any means, my guess is that this Supreme Court would rule the same way as the lower courts. And by having that highest court make a ruling makes it that much harder for the future to potentially expand the ability to digitally loan out items.
Appeal to the Supreme Court would be risky unless the Archive could be confident of success. The Second Circuit loss is very unfortunate, but defeat at the national level too would have even more far-reaching impact for many organizations all around the country, potentially for decades to come.
Maybe it’s tiring, maybe they haven’t the time or energy or resources or staff to devote to it, maybe they’re worried about setting a damaging precedent in front of the Supreme Court if they lose.
Maybe they’re worried about cyberattacks and are reasoning that many books taken off (which are generally mirrored at various pirate websites) is better than the whole site being taken down (as far as I know, the Wayback Machine is not mirrored in any significant way anywhere else).
I don’t know, but those are just a few potential reasons.
Lawyers charge insane amounts of money. Judges seem to have interpreted ‘fair use’ in the narrowest way possible. By all means charge at windmills . . . but there are more pressing issues in society at this point in time.
I will assume, Mike, that would require hiring lawyers. Filing an appeal. Because the team is busy doing archive stuff, not attorneying, so rather than hunt for probono lawyers, or waste donated funds? Giving up is always cost effective in my life. I did, i crunched the numbers, giving up saves money. Is that why no appeal? any other guesses?
> Why are you not appealing?
Not with the IA, but having watched watched the evolution of copyright law (as a bystander) for nearly 20 years, my guess is:
1) The IA’s argument was always a tough sell in light of current copyright jurisprudence, though the appellate court opinion was more harsh than I expected. While I’m partial to the IAs arguments–analytically it’s a solidly compelling legal argument, IMO–what the IA did was unprecedented. And while I think it was defensible, the vast majority of judges would have a hard time condoning it. It would represent a significant shift in the balance of power between libraries (if not the public as a whole) and publishers, notwithstanding that the status quo is the result of a significant shift toward publishers induced by technological change. I applaud the IA for taking the risk, but…
2) The IA took a big risk. Certainly the legal risk was huge. The financial risk was less than people think as there’s a little known exemption (remittitur) to statutory damages that the IA obviously was relying upon in their risk assessment. Nonetheless, given most people assumed the IA cavalierly bet the farm, I wouldn’t be surprised if some of IA’s benefactors made it clear they wanted the IA to be more risk averse going forward. The private settlement with the publishers might not have been very punitive (if at all), the appellate court never reached the statutory damages questions, and it was never 100% guaranteed the IA would have been protected.
3) Lastly, there’s little reason to think SCOTUS would save IA. While the justices’ positions on copyright issues historically have not fallen along partisan lines, it’s extremely difficult to predict how the justices would vote, or even how they might analyze the issues, especially given the number of younger justices whose ideas on copyright are even more opaque than the others’. My guess is that SCOTUS might have been one of the friendliest forums for IA, but it probably would still have been a long shot.
what about people who useprint disabled access to access the removed books
I hope those making decisions at the IA learned something from this. The IA is too important to go around kicking hornet nests.
The court decision will only drive up piracy for books, specially in developing nations.
I would like to know exactly what publishers have supported the Internet Archive, and not litigated against them. I would like to reward them by being their customer. Also, if someone has a book to which they own all the rights, how can it be made freely available to the Internet Archive, and would it be possible for the edition published on Internet Archive to have wording with in the book telling people how to purchase the printed and e-book copies of it?
The court ruling is disappointing and disheartening. There aren’t many services like this working to preserve books for future generations, and such services are needed to prevent the overwhelming majority of books from vanishing forever when their last physical copies moulder away into dust long before they reach the public domain.
Is the ruling strictly about distribution, or does it also forbid just digitizing and preserving books? I just recently started trying my hand at digitizing some of my book collection with a camera-based setup, and it’s working well so far. I’d hate to think this has now been outlawed.