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The Internet Archive's digital lending puts the entire service at risk
Archive.org distributed Copyrighted material, and it could bring the whole archive down.
December 18, 2023
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There is, right now, a lawsuit going on which could have sweeping ramifications for The Internet Archive, content publishers (of all kinds), and the future of digital media archives.

Four book publishers -- Hachette, Wiley, Penguin Random House, & HarperCollins -- have sued The Internet Archive over the "Controlled Digital Lending" program.

As much as it pains me to say it, The Internet Archive is mostly likely going to lose this fight.  Not because The Internet Archive is fighting the unstoppable behemoth of corporate media... but because, quite simply, The Internet Archive is wrong.

And, as a result of their creation of the Controlled Digital Lending (CDL) program, there is a very real chance that the (extremely valuable and useful) services of The Internet Archive may be ultimately shut down.

Internet Archive Background (The Short Version)

The Internet Archive started back in 1996 -- with the simple goal of archiving web pages.  For multiple years, they created snapshots of absolutely massive numbers of websites (both personal and corporate), eventually leading to the public launch of "The Wayback Machine" (which allowed searching of how specific websites looked on specific dates) in 2001.

As the years went on, The Internet Archive dramatically expanded the type of material that they archived: including out of print newspapers, magazines, books, public domain music and movies, abandoned software, and more.

  • 832 Billion archived webpages.
  • 38 Million printed materials (magazines, books, etc.).
  • 2.6 Million pieces of software
  • 11.6 Million videos files.
  • 15 Million audio files.
  • 4.7 Million images.

And counting.  Absolutely massive amounts of storage and bandwidth -- not to mention the human effort put into archiving and cataloging that material.

In order to finance all of this, The Internet Archives operates on a budget that is a tiny fraction of that of other foundations -- bringing in between $20 and $30 Million per year.

From the 2021 IRS filings of The Internet Archive.

In other words: The Internet Archive, while well funded, is not a behemoth.  They don't have hundreds of Millions of dollars in monetary assets (like Wikimedia).  Comparatively, The Internet Archive, is practically on a shoestring budget.

The Legal Gray Area

All of which is important to bear in mind when you consider that much of the content hosted by The Internet Archive... is not, necessarily, completely legal to share publicly.

  • A huge quantity of the material archived is either clearly legal to share -- often within the Public Domain.
  • Yet, another large chunk of material falls distinctly into a legal gray area: stradling the line of Copyright Law and Fair Use.
  • And many other archived items (such as some software from the 1980s) is technically under copyright and, legally, should not be distributed -- but because of the fact that nobody is earning revenue from those older pieces of software, nobody objects to their availability on The Internet Archive (usually).

Could The Internet Archive be sued out of existence, should enough Copyright holders challenge the archiving and availability of some of those works?  You bet.  That is, absolutely, a very real possibility.

But, thankfully, that hasn't happened.  Thanks in large part to so much material being in that "gray area" of legality, combined with other material simply not being currently profitable for any Copyright holder.

In a way, it's a sort of stalemate.  The Internet Archive continues to publish and distribute Copyrighted works... and the Copyright holders allow it because most of those works tend to be non-profitable or out of print.

Then, in 2011, The Internet Archive began down a road that was destined to get them into legal trouble.

Enter: Controlled Digital Lending

The idea of "Controlled Digital Lending" (CDL) is simple: Take a physical book, scan it to create a digital version, then allow people to download that digital book.

We aren't just talking about extremely old, out of Copyright texts here.  Many of the books being scanned and distributed by The Internet Archive are currently being printed and sold, with authors and publishers who still retain the Copyright on them.

And this isn't simply a handful of Copyrighted books, either.  3.6 Million books, still under Copyright, are distributed digitally by The Internet Archive.

To help illustrate the problem here, imagine the following scenario:

  • You buy a DVD of a Marvel's "Avengers: Infinity War".
  • You then rip that DVD, and turn it into a digital file (such as an .MP4).
  • You then put up a website offering anyone who wants to watch it... to download it from you directly.

What do you think Disney / Marvel would have to say about that?  Would you get in some level of legal trouble?  You bet your tuchus you would!

If you purchase a physical work (such as a book or movie), that simply doesn't give you the right to make a digital copy and distribute it to others.  That, right there, is "Piracy".  And every adult knows that is going to get you into hot water.

Even if you stated -- as The Internet Archive has -- that you only allow as many people to download the digital file as you have physical copies.  Irrelevant.  You'd still get in trouble.

This was, quite possibly, the biggest example of "poking the beehive with a stick" I've seen in a long, long time.  The folks running The Internet Archive had to know, from day one, that this was going to get them sued.

Then The Internet Archive Made it Worse

On March 24, 2020, The Internet Archive launched the "National Emergency Library".

This program was launched, in response to the lockdowns during the COVID pandemic, with the stated goal of providing digital copies of books to people who couldn't get to a library.  It was, in essence, the "Controlled Digital Lending" system... but without the need to wait for your turn.

Want a book?  Grab it.  For free.  It's yours.  The author or copyright holder doesn't even need to know about it.

A sample search of the National Emergency Library.

The restrictions -- as vague and difficult to enforce as they were -- that existed within the Controlled Digital Lending system were gone.  And publisheres were, obviously, not happy.

The Inevitable Lawsuit

In 2020, four publishers (Hachette, Wiley, Penguin Random House, & HarperCollins) came together to file "Hachette v. Internet Archive" -- alleging that over 33,000 different titles, of theirs, were being distributed, without their permission, by The Internet Archive.

A claim that was easy to prove with a simple search on The Internet Archive's website.  Complete with details on the number of people who downloaded each book.  The end result?  The publishers claimed hundreds of millions in damages.

Which, again, The Internet Archive had to know was coming.  It was simply too obvious.  They built a website that, in essence, stated, "We pirated your books and distributed them to exactly this number of people".

On March 26th, 2023, the judge in this case (Judge John G. Koeltl of the U.S. District Court in Manhattan) handed down his judgement.  And it was exactly what you would expect:

“At bottom, [the Internet Archive’s] fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book.  But no case or legal principle supports that notion. Every authority points the other direction.”

This was a judgement that was destined, from the moment The Internet Archive started the Controlled Digital Lending system was started, to come to pass.

Just because you buy a book, you don't -- under the current laws -- have the rights to take copyrighted material, copy it, and distribute it however you wish.  The law is both clear and well understood by... just about everyone.

The Bizarre Response from The Internet Archive

On December 15th, 2023, The Internet Archive (being represented, in part, by the Electronic Frontier Foundation), filed a brief in their appeal of that judgement.  Of that appeal, the founder of The Internet Archive, Brewster Kahle, made the following statement:

"Why should everyone care about this lawsuit? Because it is about preserving the integrity of our published record, where the great books of our past meet the demands of our digital future. This is not merely an individual struggle; it is a collective endeavor for society and democracy struggling with our digital transition. We need secure access to the historical record. We need every tool that libraries have given us over the centuries to combat the manipulation and misinformation that has now become even easier."

They are fighting for "democracy" and against "misinformation".  None of which has any relevance to the court case.

Followed by:

"The stakes of the lower court decision are high. Publishers coordinated by the AAP (Association of American Publishers), have removed hundreds of thousands of books from controlled digital lending. The publishers have taken more than 500 banned books from our lending library, such as 1984, The Color Purple, and Maus. This is a devastating loss for digital learners everywhere."

The statement that "publishers have taken more than 500 banned books from our lending library" is more than a little misleading.  Not only are the books listed readily available in libraries and book stores across the entire country... but they were not removed from the Internet Archive's "Controlled Digital Lending" system because they were "banned" or objectionable in some way.

Those books, along with many others, are under Copyright.  And The Internet Archive violated that by copying the books, and disributing digital files without consent of the publisher or author.

The Internet Archive seems to be attempting to suggest that there are some sort of anti-book activists trying to ban books from The Internet Archive.  When the real truth is... authors and publishers are making the case that The Internet Archive is stealing their property and giving it to others (in exchange for donations).  No activists or book banning involved.

In fact, the statement from The Internet Archive does not actually address the core issue within the lawsuit.  Instead it makes a number of unrelated statements that appear designed to cause fear around some sort of nonexistant war on libraries.

Such as this odd closing line:

"In the face of challenges to truth, libraries are more vital than ever."

Truly bizarre.

Especially when you consider that The Internet Archive is not representing the libraries of America in this case -- many libraries offer digital lending services that they negotiate with publishers.  What The Internet Archive is doing is for The Internet Archive.

What Happens Now?

A judge has ruled on the case (against The Internet Archive) and an appeal has been filed.

So... what happens next?  What real, practical impact will this have on The Internet Archive, Digital media, Libraries, and the like?

  1. There is no reason to believe that the first judge's decision will be reversed on appeal.  Copyright law is pretty well established and tested -- and The Internet Archive was clearly in the wrong, from a legal perspective.
  2. The more The Internet Archive spends on failed lawsuits -- and programs that cause them to get sued -- the less money they have to run the rest of their programs (such as The Wayback Machine).
  3. Every lawsuit they lose -- dealing with illegal copying and distribution of Copyrighted material -- is going to increase the odds of more lawsuits being filed against them.  The Internet Archive is, in effect, opening the floodgates of potential lawsuits across the spectrum of archived material (including music, software, and more).
  4. Because the "Controlled Digital Lending" program is part of The Internet Archive, the entire organization is liable for any damages.  And, quite frankly, they don't have the money to spare to afford those damages.
  5. None of this will have much impact on libraries -- which have a variety of digital lending systems in place (working with a variety of publishers).

All of that is fairly obvious to any outside observer.  Even someone who is a big fan of The Internet Archive (as I am), can see how the current course being followed will lead to some significant negative outcomes.

Worst case scenario?

  • The Internet Archive (including The Wayback Machine, and the entire archive of software, music, and other cultural items) will be forced to shut down due to legal liabilities (and legal defense costs) from years of Copyright infringement.
  • Other people, foundations, and companies interested in archiving culturally significant material will be increasingly hesitant to do so (they don't want to get sued out of existence either).
  • Obtaining public domain and historical material will be significantly harder going forward.

All because of the Controlled Digital Lending program -- the Internet Archive simply pushed it too far.  Far beyond the "legal gray areas" they previously operated in.

If any of those items actually come to pass, that would truly be a shame.  The Internet Achive provides a valuable service for the world -- one which I use both personally and professionally. 

How likely do I think that "worse case scenario" is?  Pretty gosh darned likely.  In large part because The Internet Archive seems determined -- from day one -- to make it happen.

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Open Source Orgs Pledge Fealty to United Nations
Linux Foundation, GNOME Foundation, others pledge to ”support the needs of the United Nations”, promote DEI discrimination & RISE.

“Who controls Open Source?” is a fascinating topic.

Some of the largest “Open Source” foundations are primarily funded by corporations which, by most estimations, have not historically been fans of “Open Source” or “Free Software”.

Case in point, The Linux Foundation — which brings in roughly a Third of a Billion dollars per year — is heavily funded by corporate sponsors such as Microsoft, Hitachi, Meta, & Tencent. All of which derive most of their revenue from proprietary systems. Likewise Mozilla (bringing in over $600 Million annually) is almost entirely funded by Google.

As the saying goes, “He who controls the purse strings, controls how the money is spent.”

And, of course, we must consider the political control (and influence) over Open Source. Many large Open Source Foundations and Organizations have deep, often financial, ties to political activism organizations — both Mozilla and Wikimedia being some of the more well known examples.

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Buckle up, Buttercup. Because all of this is about to get a whole lot worse.

Enter the United Nations

Back in March, the United Nations announced that 16 organizations had signed on to the “United Nations Open Source Principles”.

The “UN Open Source Principles” is a set of 8 core principles which Open Source organizations are vowing to adhere to. 5 of those 8 principles being fairly obvious and, considering the topic, not at all surprising.

Expected things like “Make Open Source the standard approach” and “Encourage active participation in Open Source”. Oh, and “Make security a priority”.

Ok. Sure. Fine.

I can understand why an Open Source organization might choose to pledge to follow such ideals. In theory, they were possibly doing those things anyway.

But three of the “UN Open Source Principles” raise significant red flags.

 

The Red Flag UN Open Source Principles

Let’s go over those three, red flag raising items. Which every signatory has agreed to.

“4. Foster inclusive participation and community building: Enabling and facilitating diverse and inclusive contributions.”

Inclusive. Diverse.

Over the last several years these have become code words for “discriminate against people we don’t like”. We’ve seen this time and time again — with companies like Red Hat and IBM building entire corporate policies around what skin color they want in their employees.

All hidden behind words like “Inclusive” and “Diverse”.

And the United Nations wants Open Source organizations to commit to that form of systemic discrimination.

Already, this is not great. But it gets far, far worse.

“7. RISE (recognize, incentivize, support and empower): Empowering individuals and communities to actively participate.”

If you don’t know what RISE is, that sentence reads like a bunch of corporate buzz word mumbo jumbo. But it has a very real, very sinister meaning.

What is “RISE”, you ask? It is a codified framework for encouraging exactly the type of discrimination we just talked about — it has become an increasingly widely used tactic among DEI advocates.

RISE is an acronym:

  • Recognize the contributions of “underrepresented or marginalized” groups. Highlight the achievements of “diverse” employees over “non diverse” employees”.

  • Incentivize “underrepresented” groups (with internships, promotions, scholarships, bonuses, etc.) to encourage “diversity”. (read: discrimination)

  • Support “underrepresented or marginalized” groups with tailored resources to ensure “equitable” outcomes. (read: no meritocracy)

  • Empower “diverse” individuals with leadership roles in order to promote DEI.

Sometimes discussion around “RISE” specifically includes language regarding “DEI” and “Diversity”. Other times that exact language is left out — but the core goals and motives remain consistently DEI focused.

It is, in essence, a corporate-speak, checklist for encouraging discrimination.

Which brings us to the last “UN Open Source Principle”. The one which, quite possibly, raises the largest red flag of all…

“8. Sustain and scale: Supporting the development of solutions that meet the evolving needs of the UN system and beyond.”

Did you catch that?

Open Source organizations, which sign on to this compact, are pledging to “support the development of solutions that meet the needs of the United Nations”.

Or, put another way, those organizations are pledging to do the bidding of the UN. Whatever that might be.

The UN is asking these Open Source organizations to pledge fealty to them.

The Open Source Orgs Pledging Fealty

Which Open Source organizations are we talking about? Quite a few of the big names — names which will be very familiar to Lunduke Journal readers — including:

  • The Linux Foundation

  • The GNOME Foundation

  • Eclipse Foundation

  • The Document Foundation (LibreOffice)

And so many others. Heck, even Nextcloud and Matrix have signed on.

 

Many of these organizations (and others) recently met, in person, at the United Nations in New York to discuss — among other things — this formal agreement. This… compact.

The UN Global Digital Compact

In June of this year, the United Nations hosted “UN Open Source Week” — and invited a who’s who of organizations which control Open Source in one form or another (along with a number of smaller organizations which are politically aligned with the UN).

This gathering was officially named “an Open Community for the Global Digital Compact”.

 

Who did the United Nations make a point of inviting to speak to those in attendance?

Let’s go down the list.

 

The Gates Foundation and Mozilla.

Of course.

 

Amazon and, I kid you not, The World Bank.

 

GitLab and Wikimedia Foundation.

 

I found the inclusion of Mastodon a fascinating one. While Mastodon is small (in most ways — even considering the size of their social media network), they align strongly to the political goals and views of the United Nations (promote Leftist Extremism, censor political opponents).

 

And, of course, GitHub. Aka… Microsoft.

In addition, representatives from most of the signatories of the “United Nations Open Source Principles” agreement were in attendance (including the GNOME Foundation).

Some of the presentations were about things like “Ethical” software, interoperability with United Nations systems, “Public infrastructure”, digital “cooperation” of governments, and (of course) “inclusion”.

Many presentations — by many organizations — which already raise significant concerns.

But, and this is important, what did they talk about behind closed doors? What was discussed out of the public eye at the (many) meetings and events where attendees were wined and dined?

That remains unknown.

The Lunduke Journal has asked. The UN isn’t talking. Neither are the attendees.

The Three Masters of Open Source

But we now know, with a high level of certainty, that many of the significant Open Source organizations and Foundations now serve three masters:

  1. The Corporations

  2. The Political Activists

  3. The United Nations

I don’t know about you, but I sure wouldn’t want to have those three masters.

As always, The Lunduke Journal encourages representatives and leadership from any organization involved with this story to reach out — for any reason. Corrections, clarifications, or additional information. Considering the professed commitment to “openness” of every organization mentioned in this story, there should be no reason to continue refusing to speak to journalists regarding it.

Likewise, if you would like to become a whistleblower, there are multiple ways to get ahold of The Lunduke Journal.

Sunlight is the best disinfectant.

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IBM Taking DEI “Under the Radar”
Whistleblowers provide details on how IBM & Red Hat are simply renaming “Diversity” programs, as the company continues discriminatory hiring practices.

Back in April, The Lunduke Journal broke the story of IBM “ditching DEI policies” company wide — including at their subsidiary, Red Hat. This change was announced in the wake of multiple lawsuits against IBM (for their DEI policies) and executive orders against DEI from President Trump.

At the time, activist employees at Red Hat / IBM were not happy (to say the least). Encouraging and planning protests, “raising hell”, and even “killing fascists”.

But, now that a little time has passed, let’s take a look inside at IBM and see how their “ditching DEI” change is actually going.

DEI Staying “Under the Radar”

Thanks to whistleblowers within IBM, we know that employee groups focused on DEI still, in fact, exist. They are simply changing names in order to “stay under the radar” and avoid having “a target on their back”.

 

The “diversity-inclusion” corporate Slack channel, for example, is now named “inclusion-at-ibm”. They simply dropped the word “diversity”.

The DEI Department is Still There

Employees are using that IBM DEI Slack channel to clarify corporate changes to DEI policy. Which, again, thanks to whistleblowers… we have screenshots of.

A few key items:

  • The “DEI Department” has been renamed to “Inclusion” — and now reports to Kitty Chaney Reed (the Chief Leadership, Culture and Inclusion Officer).

  • IBM is no longer part of the Human Rights Campaign — “the HRC no longer align with IBM priorities”.

  • “People can still identify their preferred pronouns in all of IBM systems.”

  • The game-ified “Allyship Badge” system has been removed.

 

As we can see, some DEI policies and programs are gone, while others remain. And IBM is making a point of renaming their DEI Department within HR.

We gain these insights thanks to Ruth Davis — an IBM Executive and who currently identifies as a “DEI Advocate”.

 

These clarifications were published by a current member of the IBM HR team… who was originally hired as a “Diversity and Inclusion Intern”.

 

In short: DEI advocates continue to control IBM HR, and DEI departments continue to exist.

IBM / Red Hat Discriminatory Quotas

Up until recently, both IBM & Red Hat had discriminatory hiring policies — including sex and skin color quotas and even rewards for executives for hiring fewer white men.

We learned, as part of the original leaks supplied to The Lunduke Journal back in April, that “diversity goals are no longer part of the executive incentive program”.

 

Which begs the question, now that a few months have passed, is IBM still discriminating against White Men?

Getting hard numbers on the demographics of new IBM / Red Hat employees is not likely to happen for quite some time — if ever. But here is a picture, posted yesterday, of new Red Hat interns.

That might give us some indication of where things are heading.

 

Well. Huh.

Finding the “White Guys” in this photo of Red Hat interns isn’t quite as challenging as a round of “Where’s Waldo?”… but it’s close.

Now for me, personally, I truly don’t care what the demographic ratios are of employees & interns within a company. Hire the best people for the job, regardless of their sex or ethnicity. Meritocracy is a good thing.

That said, considering the multiple pending lawsuits against IBM and Red Hat — specifically regarding their discriminatory policies towards White Men (and their previously stated goals of hiring less of them) — it is more than a little interesting that their latest crop of Red Hat interns is almost entirely… people who are not White Men.

Results Are Mixed

There are a few good signs in here of IBM dropping DEI related policies — including no longer being involved in the Human Right Campaign and the removal of the (rather repulsive, anti-White) “Allyship Badges”.

Unfortunately, most of the rest of what we’re seeing is less encouraging.

  • “DEI” groups simply being renamed to “Inclusion” in order to stay on the right side of the law.

  • What appears to be continued discriminatory hiring at Red Hat (despite lawsuits and stated policy changes).

  • Executives and HR still heavily controlled by “DEI Advocates”.

  • Corporate systems still using “preferred pronouns”.

While making significant changes to corporate policies can take time — especially across large organizations like IBM — some of these internal reports indicate an unwillingness to drop DEI policies on the part of key IBM leadership.

The Lunduke Journal will continue keeping tabs on both IBM and Red Hat.

Any employees looking to become whistleblowers can find whistleblower resources at Lunduke.com.

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LibreOffice Developer’s Hotmail Account Locked After LibreOffice Criticizes Microsoft
“Wow that looks bad,” says Microsoft employee.

Mike Kaginski, a LibreOffice developer (who works for Collabora), has had his Microsoft-hosted email account, which he uses for open source development, locked for “activity that violates our Microsoft Services Agreement”.

 

Kaginski discovered this when attempting to send an email to the LibreOffice development mailing list (hosted by FreeDesktop). It remains unclear if that specific email (which he sent via another address and was rather bland and technical) was the reason for the ban… or if attempting to send the email was simply the first time the ban was noticed by him.

This happened just days after LibreOffice officially accused Microsoft of engaging in a “Lock-in” strategy by creating “artificially complex”, XML-based office documents.

Are the two events related? Hard to say with any certainty.

To make matters worse, Kaginski has had no success in getting Microsoft to lift his locked email account — with the company making him jump through numerous, impossible hoops (such as requiring him to sign in to submit an appeal for his account being locked… but not allowing him to sign in… because his account is locked).

You got that? Sign in to fix the account you can’t sign in with.

Gotta love a good Catch-22.

Good job, Microsoft.

The Lunduke Journal reached out to a contact, within Microsoft, who made it clear that their group was not aware of the LibreOffice Developer’s locked account, but they were aware of the LibreOffice complaint article regarding “artificially complex” XML lock-in. Adding, “wow that looks bad”.

The Lunduke Journal’s Analysis

The odds of locking a LibreOffice developer’s email account being an official Microsoft corporate decision seems highly unlikely.

Microsoft, as a company, makes a lot of bad decisions — but this would just be too stupid for words. A massive PR blunder.

But could a single employee, feeling grumpy, have done it on an impulse? As some sort of revenge for LibreOffice’s “harsh” words about Microsoft? Sure. That seems entirely plausible?

Though, it’s also entirely plausible that some poorly designed AI-driven “naughty activity” detection bot flagged his account. Or, perhaps, the developer was reported by some random Open Source hooligan who likes to cause chaos (there’s a lot of those).

Either way, the fact that Microsoft requires people to log in — on accounts which cannot log in — in order to file an “appeal” is incredibly amusing. And is very, very typical Microsoft.

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