If you’re upset about the “Hachette” decision, blame the Internet Archive for overstepping

By | March 25, 2023

Yesterday, a federal judge ruled in favor of a four publishers in a lawsuit the filed against the Internet Archive (IA) for digitally lending their books in violation of copyright law.

Frankly, this was an obvious legal decision, amply supported by the facts and evidence and there was no way IA was going to win this case in front of any judge who actually understands copyright law. If you don’t understand this, then you either have an incomplete understanding of what IA was doing, or you have an incomplete understanding of copyright law, and I strongly encourage you to read the judge’s entire decision before publicly expressing your uninformed opinion about it. It is a master class in why IA was wrong as a matter of law.

I am not referring to whether IA should be allowed to do what they were doing as a matter of morality, or ethics, or what’s best for society, or anything so nebulous as that. I’m simply stating the simple, unequivocal fact that as a matter of law, what IA was doing was rampantly violating the copyrights of book publishers, and its arguments to the contrary were transparently bogus, as the judge demonstrated by thoroughly eviscerating them in his decision (go read it!).

When IA started its controlled digital lending (CDL) program, it was structured in such a way that the publishers never would have sued over it. It was far more arguable that the initial program was legal, and the publishers would not have wanted to risk losing a lawsuit and establishing a bad (in their eyes) precedent. However, IA repeatedly expanded their program, making the copyright case against it clearer and depriving the publishers of more revenue each time. They finally jumped the shark entirely with their “National Emergency Library” (NEL) program at the start of the COVID-19 pandemic. NEL was so clearly and unequivocally a copyright violation, and it so clearly cost the publishers a substantial amount of money, that they finally had the slam-dunk case they needed to justify a lawsuit.

If you want to blame anyone for a decision which establishes a precedent supporting problematic copyright laws that are bad for society, blame IA for going so far beyond the bounds of what the law allows that they left the publishers little choice but to sue.

But is this decision bad for society? Was what the IA was doing moral or ethical? Was it a net benefit to society? I don’t think so, at least not as long a we’re stuck with capitalism.

In a capitalist society, for there to be books in the world, authors and publishers have to get paid. Furthermore, they need to get paid more for books that more people read. These are unavoidable features of capitalism. If you don’t agree with them, your complaint is with capitalism, not with the publishers who sued IA. And while I kind of agree with you — my feelings about capitalism have been on an asymptotic approach to “burn it all down” for at least a few years now — it seems obvious to me that as long as we’re stuck with capitalism, we’re better off with a version of capitalism that has books than one without.

By the time the publishers sued IA, IA had, through various machinations, essentially disconnected how many people were borrowing their books from how much money they had paid for the publishers for them. That’s not good for society, because it’s not good for encouraging people to write books and publishers to publish them.

I am not at all a fan of how publishers sell digital books or of the conditions under which they license books to libraries for digital lending. I think there is plenty of room to change those things for the better while still allowing publishers and authors to get paid. However that’s not what IA was doing. What IA was doing was a full-on attack on capitalist book publishing. It was destined to fail in court, because you can’t beat capitalism when you’re playing by its rules.

Well, that’s not entirely true. There is one way you can beat capitalism by its own rules, at least when what you’re fighting over isn’t a fundamental requirement for survival: if you don’t like how someone is selling someone, then don’t buy it. People could stop buying ebooks with predatory DRM. Libraries could stop buying and lending ebooks with predatory licensing terms. But they don’t, which means by definition they’ve decided that what the publishers are selling is worth buying at the price the publishers are charging. I might think otherwise if there were no alternative, but you could simply… not buy ebooks. Paper books still exist, and you can still get them for free from the library.

If you fight back against predatory publishers by pirating books, good for you! I salute you, and I support your rebellion against a rigged system. But don’t steal books and tell me what you’re doing is actually legal. “Property is theft” doesn’t mean what you think it means.

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