So a month ago today I posted a post wherein I accessed a book from the Internet Archive; since I already posted something this month I hadn't been going to do so again until Saturday at the earliest (i.e. next month), but I was reading through last month's post and I realized the court decision that was handed down last week really affected like, the very medium by which I'd accessed Six Walks in the Fictional Woods, and really felt like I needed to say something. Like for one, the image I use on that post is a link hosted by archive.org and I'm not sure it's still gonna be there for long? It's part of the first free few pages accessible without logging in, I don't know exactly what the plan is, although I do know that the Archive are going to appeal the decision.
There are going to be massive repercussions all dang over. It was a fascinating case I was following closely, I saw both sides' points but I knew how I really really wanted it to end.... I'm sick and tired of these court cases being decided the wrong way; notably it's the publishers and not the authors themselves that were suing IA.
If the copies of the books existed in the metaverse then maybe the case would have gone differently! Which is absolutely ridiculous! (Caught yesterday's Folding Ideas video on Decentraland within 20 minutes of it premiering: the metaverse is just the internet only virtual reality so that it can be a metaverse instead of the internet; that's the only difference.)
Keeping this in mind gives us the tools to track the principle going from a physical library to a virtual library, and then from a virtual library to an even more virtual one: scans that can only be accessed once at a time. The lawyers managed to argue that this somehow represents a misunderstanding of how ownership works when dealing with intellectual property- the physical library loans out ebooks, but straight from the publisher, mediated by the extra step of a physical form (that is the physical library.) The Internet Archive library takes away that physical step and substitutes it for a different one: instead of representing direct beamed-to-the-libraries-from-the-publishers ebooks, the ebooks represent physical books owned by the Archive themselves and accessible without need of access to the physical library.
The court argued that the Internet Archive wasn't operating under fair use because their lending out ebooks is nontransformative- I really need people to move past fair use arguments here, because it misses the point entirely. VidAngel argued fair use when they made transformative (censored, etc) copies of copyrighted material, under much the same virtual-access-of-physical-media model that archive.org employs; I think they were missing the point there, and they of all people have much greater stake to making the transformative argument as a claim; they were also denied in court, which also sucks and is especially why it's a bad argument when dealing with this specific issue. Precedents, and all.
Getting a book from your own bookshelf isn't fair use, though. Getting a book from someone else's bookshelf either. Fair use is about fairly claiming copyright of someone else's copyright, and... well there's that word, "copy" right. The extra step there, that I was talking about up there, the mediating step of the copyrighted material being digitalized, that does represent a copy, doesn't it. You can screenshot a page from the internet archive, but that's on your end, no different from photocopying a page from a library book except for whether it exists in a physical or virtual environment. It isn't about the loaning of the ebooks, it's about having created them in the first place- or rather, it's about doing both, as surely photocopying a book you yourself own for your own personal use does fall under that nasty fair use goblin. You can lend a friend a book, you can bury that book and lend a friend your photocopy, is there a difference there, and if not, what's the difference in changing the medium to a virtual medium instead of a physical? The precise location where the "fair use" would fall shifts as the terms shift; somehow, it's not a true Ship of Theseus.
I don't know; it feels like I'm talking around it now. Fascinating on a philosophical level though! You can see why I was so keen on the case, and also why I'm so disappointed by the New York courts' siding with the publishers on this one, because it takes this complex issue and flattens it into a simple case of somebody using a, song or whatever, non-transformatively without permission. Disappointed. I didn't have much unique to say, I don't think. But I am disappointed.