Talk:Hachette v. Internet Archive

What this lawsuit (and, particularly, the MSJ) is about

Just a note to be cautious about what you say this case was about. The case was about whether or not the National Emergency Library was fair use. It is not about whether CDL is inherently copyright infringement. The publishers argued that the NEL was not fair use because, among other things, they contend that CDL is inherently copyright infringement. The judge's response to the motions for summary judgement indicates to me that they are sympathetic to the view that CDL is inherently copyright infringement, but the case was about whether or not the NEL was fair use. The judge determined that the NEL was not fair use and directed the parties to discuss how the case should be resolved in light of that decision. That's it.

The IA is likely to appeal, and further litigation on this case might make a grander statement about whether or not CDL remains legal. For now, CDL remains legal because this case was not about CDL. Future cases about CDL will likely cite the judgment of this case to ask for future, more explicit precedents to be set against CDL, but those precedents have not come yet. lethargilistic (talk) 05:45, 25 March 2023 (UTC)

One more thing I should add to future-proof this. It's entirely possible that the final judgment in this case could say that CDL is copyright infringement, too. It could be that explicit precedent. My point is really just that today's reply to the MSJs was not a final judgment that ordered IA to do anything more than file the next brief required by the litigation process. It's just a little too early to conclude that courts will begin categorically ruling against CDL going forward, especially because of how jurisdictional precedent works. lethargilistic (talk) 06:06, 25 March 2023 (UTC)

It might be nice to have a section on what could happen if the Internet Archive loses the case. I'm seeing conflicting information. Relinus (talk) 02:34, 27 March 2023 (UTC)

The EFF/IA MSJ (Motion for Summary Judgment) is (primarily) about allowing IA's Open Library(OL) lending of OL, self-produced, from hard copy, ebooks (PDF or ePub), with the OL CDL one-lend/one-copy, restrictions. The short lived NEL abridged system, without waitlist and one-on-one restrictions was abandoned, as stated in the Background on June 2022, shortly after the lawsuit was filed and reverted back to the previous OL waitlist limited CDL system.

The 133 titles in the plaintiffs Works in Suit list are all available as ebooks, from the publishers (aggregator agents), with varying CDL options for libraries. The principal question is whether OL's self-generated ebook content and lending through the OL CDL system is a 'fair use' non-profit, educational competitor to the publisher's CDL options.

I'm going to edit the page to add the nuance about the OL self-generated CDL competition.

The 24.Mar.2023 Summary Judgment is archived at wikisource here: https://en.m.wikisource.org/wiki/Hachette_Book_Group_v._Internet_Archive_(2023)

LarryLACa (talk) 05:51, 4 April 2023 (UTC)

Other Hachette v. Internet Archive articles

Similar discussions of Hachette v. IA appear in other articles. Their content needs to be 'unified' with the description here. Other articles:

Open Library#Hachette v. Internet Archive - links to this Main article

Internet Archive#National Emergency Library, Publishers' lawsuit - links to this Main article

LarryLACa (talk) 21:45, 4 April 2023 (UTC)

Better summary of current status

The "Lawsuit" section currently says, "Both sides filed motions for summary judgment. ... A final judgment is still pending." It continues, "At issue is whether the lawsuit is limited to the 12 weeks of expanded lending through the NEL and whether Open Library self-generated ebook CDL lending is fair use in general", citing "OPINION" (PDF). Archived (PDF) from the original on 2023-03-30..

However, the source cited is labeled "Opinion & Order" by John G. Koeltl, District Judge", the first page of which ends with "the plaintiffs' motion for summary judgment is granted, and the defendant's motion for summary judgment is denied."

Questions

1. How is "A final judgment still pending"? The cited "Opinion & Order" sounds pretty final to me. Won't this judgment stand unless overturned following an appeal or some other comparable legal action?
2. I'm confused by the claim that, "At issue is whether the lawsuit is limited to the 12 weeks of expanded lending through the NEL and whether Open Library self-generated ebook CDL lending is fair use in general." Can someone who understands this better than I do explain this ruling in lay term, e.g., something like the following: "Judge Koeltl's ruling was limited only to the NEL, which was discontinued shortly after this suit was filed in on June 1, 2020, and does not address other issues such as the legality of CDL as otherwise practiced by Internet Archive and other libraries." THIS CLAIM MAY NOT BE ACCURATE. Might it be appropriate to replace it by a claim that is accurate?

Thanks, DavidMCEddy (talk) 16:15, 8 April 2023 (UTC).

I just deleted the final paragraph that I think is confusing but retained the reference by moving it to the end of the sentence describing the judge's decision -- that reference. If you feel this is inappropriate, please offer something better. Thanks, DavidMCEddy (talk) 16:49, 8 April 2023 (UTC)

@DavidMCEddy:

1. It was a ruling on a motion for summary judgment, not a final judgment. See the Conclusion section: "The parties should submit their respective proposals (or preferably a joint proposal) for the appropriate procedure to determine the judgment to be entered in this case. The submission or submissions should be made within fourteen (14) days of the date of this Opinion and Order." It was a judgment as to what facts are true for the case, not a final judgment as to what the parties must do to resolve the dispute. Basically, from this point on, all litigation will assume that everything in the judge's reply is correct. That is not the same thing as, for example, formally ordering the Internet Archive to remove all of the ebooks immediately. The judge has said what is true for the purposes of the proceeding and the parties have been instructed to suggest what the proper outcome of the case should be. The Internet Archive will likely either participate in that process by filing the brief and appealing after the judgment or proceed directly to an appeal of the summary judgment decision. Put another way, in case that is still unclear: what do you think the final judgment in the case was, and where do you find it in the order? The example in your question is not one because that basically says "I accept the plaintiff's version of events as true and reject the defendant's version of events."
2. I really don't think that sentence is necessary, frankly. When there is a final judgment in the case, it will say what the Internet Archive must do. And, frankly, it will say more explicitly what all of this was about, whether it matches my description or Larry's slightly different take above. lethargilistic (talk) 22:46, 8 April 2023 (UTC)

Thanks very much for this addition and clarification. I wordsmithed slightly the sentence you added. If you think that that adds more confusion than clarity, please try again. Thanks again, DavidMCEddy (talk) 23:02, 8 April 2023 (UTC)

Status as of 2023-04-15

@Lethargilistic:, et al.: I have more questions:

1. The "Lawsuit" section of this article says, "The 133 publishers' books in the suit are also available as ebooks from the publishers." However, the judge's ruling 2023-04-24 begins by saying, "The plaintiffs ... allege that the defendant ... infringed the plaintiffs’ copyrights in 127 books". What's the difference between the 133 and 127?
2. The Judge's ruling from -04-24 ends, "The parties should submit their respective proposals (or preferably a joint proposal) for the appropriate procedure to determine the judgment to be entered in this case. The submission or submissions should be made within fourteen (14) days of the date of this Opinion and Order." What's the current status of this and how can I learn more?

FYI, I'm scheduled to discuss this in a radio broadcast next Tuesday, April 18, 6-6:30 PM Central US time. I plan to fill over 2/3 of that time with excerpts from a press conference organized by the Internet Archive just before oral arguments. Between now and then I need another 5 minutes (600 words) on the current status.

Thanks, DavidMCEddy (talk) 14:18, 15 April 2023 (UTC)

@DavidMCEddy Hi David. I couldn't find 133 anywhere, so 127 is right. Not sure how that happened. As for the current status of the case, you can look it up on CourtListener. It looks like the parties have filed two joint requests for more time, claiming to be having constrictive conversations as to what to do about this. Both were just stamped as granted, but they had oral arguments again in the middle, so I think they may have explained their progress. (I don't think there was a transcript.) The latest deadline is April 19. Good luck on your radio broadcast. The case is kind of up in the air, so I'm not sure how to help you fill the time (if you're asking), but a boring way to add more minutes would be to quote from the first request for more time. lethargilistic (talk) 15:56, 15 April 2023 (UTC)

@Lethargilistic: Thanks for researching the 133 and changing it to 127.

I'm a big fan of the Free Law Project. I used it extensively in researching Fish v. Kobach and writing about it. I plan to post a tutorial to Wikiversity on how to use it, with Hachette v. Internet Archive as an example.

The press conference cited above mentioned research that supported their claims that also suggested ways the plaintiffs could actually benefit, e.g., from giving the Internet Archive license to use any out of print book or any over 5 years old, because it could allegedly boost their sales. If these claims are accurate and balanced, a win-win solution could be negotiated. Alternatively, the publishers could hope to convince this Supreme Court to outlaw most current CDL practices and block any attempts to overturn it in the US Congress, where the vast majority of elected officials have received money from publishers and where all elected officials know that the major media can destroy them with fake news and innuendos. DavidMCEddy (talk) 17:51, 15 April 2023 (UTC)

References

Final judgment

@Peacedance: I like most of your edits of 2023-05-02T03:08:30, but the last one is not accurate. You wrote:

But ultimately, Judge John G. Koeltl of the Southern District of New York ruled that Internet Archive "creates derivative e-books that, when lent to the public, compete with those authorized by the publishers." Internet Archive founder Brewster Kahle declared their intention to appeal the ruling.

In fact, the case is still pending. Text you deleted included documentation of that, which is dated 2023-03-29, four days AFTER your "CommonDreams" reference of 2023-03-25. I've just modified that text in this article, citing what seems to be the most recent document filed in this case.

Thanks for your support of the Wikipedia project. DavidMCEddy (talk) 15:24, 3 May 2023 (UTC)

The document you linked to has a filing date at the top of 3/24/2023, so it is prior to the Common Dreams overview. However, I don't know the fine details of the case, and you seem to, so I will leave it entirely in your hands; what you wrote seems clear.

The citations are somehow not working, however. I had to go back to the source to find the your actual link. There must be some coding error, perhaps earlier in the document, but I don't think I have the skills to find it.

I wonder why IA is delaying refiling? Peacedance (talk) 15:14, 4 May 2023 (UTC)

P.S. Figured out citation syntax problem, and moved citations that didn't refer to quote to a statement outside of it. Peacedance (talk) 15:38, 4 May 2023 (UTC)

References

DavidMCEddy (talk) 15:24, 3 May 2023 (UTC)

Thanks. By the way, I love Wikidata and Wikicite: It's more work to create a citation in Wikidata than a single in-line citation, but it's better in several ways. Most obviously, if the same source is cited in more than one article, then I think it's less work. Less obviously, any improvement in the citation is shared. If, for example, a link goes bad, AND it can be corrected, correcting it in Wikidata fixes the problem for all uses. Less obviously, if I want to cite an article by an author with a name that is not unique, Wikidata allows us to specify which John Smith, for example, wrote the particular article of interest.

I do NOT like the way Wikidata citations appear in source, so I routinely include a comment. Obviously, I failed to adequately proofread my edit.

DavidMCEddy (talk) 16:09, 4 May 2023 (UTC)

Updates planned on consent judgment?

https://archive.org/details/consent-judgment-in-hachette-v-internet-archive

@DavidMCEddy @Peacedance Karlstutzman (talk) 12:03, 15 August 2023 (UTC)

Thanks User:Karlstutzman.

This might be against WP rules, but I don't know where to go with this yet: IA is going to have to remove books, and there seems to be some good media strategy to bury this story and prevent public backlash. NYT didn't include "Internet Archive" in the title, and the long, rambling article rehashes trivia until the very end where it mentions the outcome of the case in very vague terms.

https://web.archive.org/web/20230815121049/https://www.nytimes.com/2023/08/13/business/media/internet-archive-emergency-lending-library.html

And in the meantime, the music industry has come out with a new lawsuit against IA over music that has seemed to outshine the book loss story. Going to try to spread the word some more today on Reddit, etc. Peacedance (talk) 16:21, 16 August 2023 (UTC)

I've looked at many of the court documents including especially the final decision. To me, that decision does not seem as damaging to the Internet Archive as what is described in this article.

Documentation on how to access those court documents is available in Wikiversity:Researching US federal court documents. That article is a tutorial, illustrated with this specific case. If you follow the procedure there, you should be able to get for free the latest documents (or almost any other in that case). If you have trouble understanding that article, let me know: I wrote it, and I can modify it to make it hopefully easier to understand. (I'm not eager to take the time to research that myself, but I would eagerly answer any questions you may have if you try to follow the instructions in that Wikiversity article and have difficulties understanding it.)

Also, if you have time to look for the music industry lawsuit, I'd like to know. If you can find an article that describes it, that would help. It would be easier to find court documents if we have the title of the case and the jurisdiction, or at least the name of the official plaintiff(s).

Comments? Thanks, DavidMCEddy (talk) 23:35, 16 August 2023 (UTC)

@DavidMCEddy The music labels' lawsuit is described on https://www.reuters.com/legal/music-labels-sue-internet-archive-over-digitized-record-collection-2023-08-12/ where they also link the https://fingfx.thomsonreuters.com/gfx/legaldocs/jnpwwwejopw/INTERNET%20ARCHVIE%20RECORD%20LABELS%20LAWSUIT%20complaint.pdf —Phazd (talk|contribs) 08:26, 17 August 2023 (UTC)

This article is not up to date. It's current as of March 2023, but the settlement and injunction terms are not described at all or only cursory. -- GreenC 07:36, 6 September 2023 (UTC)

According to "What the Hachette v. Internet Archive Decision Means for Our Library" which states: "The Internet Archive may still digitize books for preservation purposes, and may still provide access to our digital collections [such as] “short portions” of books as is consistent with fair use — for example, Wikipedia references as shown in the image above." None of this is mentioned in this article. Would it be a good idea to include it? -- GreenC 17:26, 23 October 2023 (UTC)

We would need a third party source for that. It's going to require some interpretation, because what IA is allowed to do is defined by negation (all the things which were not disallowed by the ruling are now sort of supported by the ruling). I think Kyle K. Courtney had an article about it recently. Nemo 06:45, 25 October 2024 (UTC)