Lunduke
News • Science & Tech
The Internet Archive's last-ditch effort to save itself
A lost lawsuit, a flimsy appeal, and misleading public statements... things aren't looking good for the Internet's archivist.
April 24, 2024
post photo preview

On April 19th, The Internet Archive filed the final brief in their appeal of the "Hachette v. Internet Archive" lawsuit (for which, judgment was handed down, against Internet Archive, last year).

What is curious, is that this final brief fails -- almost completely -- to reasonably address the core issues of the lawsuit.  What's more, the public statements that followed, by The Internet Archive, appeared to be crafted to drum up public sympathy by misrepresenting the core of the case itself.

Which suggests that The Internet Archive is very much aware that they are likely to lose this appeal.

After a careful reading of the existing public documents relating to this case... it truly is difficult to come to any other conclusion.

The Internet Archive does some critically important work by archiving, and indexing, a wide variety of culturally significant material (from webpages to decades old magazine articles).  In this work, they help to preserve history.  A extremely noble, and valuable, endeavor.  Which makes the likelihood of this legal defeat all the more unfortunate.

What is "Hachette v. Internet Archive"? 

Here's the short-short version of this lawsuit:

The Internet Archive created a program they called "Controlled Digital Lending" (CDL) -- where a physical book is scanned, turned into a digital file, and that digital file is then "loaned" out to people on the Internet.  In 2020, The Internet Archive removed what few restrictions existed with this Digital Lending program, allowing an unlimited number of people to download the digital copy of a book.

The result was a group of publishers filing the "Hachette v. Internet Archive" lawsuit.  That lawsuit focused on two key complaints:

  1. The books were "digitized" (converted from physical to digital form) -- and distributed -- without the permission of the copyright holders (publishers, authors, etc.).
  2. The Internet Archive received monetary donations (and other monetary rewards) as a result of freely distributing said copyrighted material.  Again, without permission of the copyright holders.  Effectively making the Internet Archive's CDL a commercial enterprise for the distribution of what is best described as "pirated material".

That lawsuit was decided, against The Internet Archive, in 2023 -- with the judge declaring that "no case or legal principle supports" their defense of "Fair Use".

That judgment was appealed by The Internet Archive.  Which brings us to today, and thier final defense (in theory).

What is the final defense of The Internet Archive?

Let's take a look at the final brief in The Internet Archive's bid to appeal this ruling.

In true Internet Archive form, a PDF of the final brief in their appeal has been posted to Archive.org.

The general defense of The Internet Archive is fairly simple: The Internet Archive's "Controlled Digital Lending" falls under "Fair Use".  And, therefor, is legal.

Let's look at two of the key arguments within the brief... and the issues with them.

Not "For Anyone to Read"

"Controlled digital lending is not equivalent to posting an ebook online for anyone to read"

This argument -- part of the brief's Introduction -- is quite a strange defense to make.

The "Controlled Digital Lending" program, starting in March of 2020, literally posted a massive book archive "online for anyone to read".  This was branded the "National Emergency Library".

Good intentions aside, the Internet Archive is now attempting to claim that they did not do... the exact thing that they proudly did (they even issued press releases about how they did it).

As such, I don't see a judge being swayed by this (poorly thought out) argument.

"Because of the Huge Investment"

"... because of the huge investment required to operate a legally compliant controlled lending system and the controls defining the practice, finding fair use here would not trigger any of the doomsday consequences for rightsholders that Publishers and their amici claim to fear."

Did you follow that?

The argument here is roughly as follows:

"It costs a lot of money to make, and distribute, digital copies of books without the permission of the copyright holder...  therefore it should be legal for The Internet Archive to do it."

An absolutely fascinating defense.  "Someone else might not be able to commit this crime, so we should be allowed to do it" is one of the weirdest defences I have ever heard.

Again, I doubt the judge in this case is likely to be convinced by this logic.

There are many other arguments made within this final brief -- in total, 32 pages worth of arguments.  But none were any more convincing -- from a logical perspective -- than the two presented here.  In fact, most of the arguments tended to be entirely unrelated to the core lawsuit and judgment.

The Court of Public Opinion

Let's be honest: The Internet Archive looks destined to lose this court battle.  They lost once, and their appeal is, to put it mildly, weak.

Maybe you and I are on the side of The Internet Archive.  Maybe we are such big fans of Archive.org that we want to come to their defense.

But feelings don't matter here.  Only facts.  And the facts are simple.  The Archive's actions and statements (and questionable legal defense) have all but ensured a loss in this case.

So... what happens next?

What do you do when you have a profitable enterprise (bringing in between $20 and $30 million per year) that is on the verge of a potentially devastating legal ruling which could put you out of business?

Why, you turn to the court of public opinion, of course!

And you spin.  Spin, spin, spin.  Spin like the wind!

Here is a statement from Brewster Kahle, founder of The Internet Archive", who is working to frame this as a fight for the rights of Libraries:

"Resolving this should be easy—just sell ebooks to libraries so we can own, preserve and lend them to one person at a time. This is a battle for the soul of libraries in the digital age."

A battle for the soul of libraries!  Woah!  The soul?!

That's an intense statement -- clearly crafted to elicit an emotional response.  To whip people up.

But take another look at the rest of that statement.  The Internet Archive founder says that resolving this case "should be easy".  And he provides a simple, easy-to-follow solution:

"just sell ebooks to libraries so we can own, preserve and lend them to one person at a time"

Go ahead.  Read that again.  At first it makes total sense... until you realize that it has almost nothing to do with this specific case.

Let's ignore the "one person at a time" statement, which is a well established lie (the Internet Archive proudly distributed digital copies of physical books to anyone who wanted them, not "one at a time").

But take a look at this proposed resolution... note that it has very little to do with the actual case.  The case is about the digitizing of physical books, and distributing those digital copies without permission of the copyright holder.  This proposed resolution is about... selling eBooks to lenders.

Yes.  Both have to do with eBooks.  And, yes, both have to do with lending eBooks.

But that is where the similarities end.  And the differences, in this case, are absolutely critical.

Let's take a look at the actual ruling -- which The Internet Archive is attempting to appeal:

"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."

The Internet Archive's publicly proposed resolution does not address this ruling at all.  Which means that, when talking to the public, The Internet Archive is being dishonest about this case.

But they are using flowery language -- "battle for the soul of libraries" -- so they'll likely manage to convince many people that they're telling the truth and representing the facts of the case fairly and honestly.  Even if they are not.

There Are Important Disagreements Here

None of which is to say that the points which The Internet Archive is making... are necessarily wrong.

From the announcement of their appeal, the Archive states the following:

"By restricting libraries’ ability to lend the books they own digitally, the publishers’ license-only business model and litigation strategies perpetuate inequality in access to knowledge."

While this statement is designed to evoke specific feelings and responses -- among specific political demographics (see: "perpetuate inequality") -- there is an underlying set of issues here that are worth thinking about.

  • Is it important that libraries be able to lend official digital editions of books?
  • Should publishers, authors, and other copyright holders be forced to supply digital versions of their written works to libraries?
  • If digital works, borrowed from a library, are then copied and distributed more than the rights allow... who is ultimately responsible for that?  The library?  The creator of the software system which facilitated the lending?  Nobody at all?
  • Should Libraries or Publishers be able to censor or modify digital works... or should a published digital work be maintained as it is at time of publication?  (This issue comes up a lot when talking about censorship and revisions of works.)

These are legitimate questions.  And, while the answers may appear obvious, there truly are distinct disagreements among publishers, authors, and libraries.

Some of these issues are raised by The Internet Archive, BattleForLibraries.com, and others.

The "Battle for Libraries" campaign

But none of these questions -- not one -- are part of the ruling in "Hachette v. Internet Archive".

The question that has been answered in this case is simply:

  • If you buy physical media (such as a book), can that media be digitized and distributed on the Internet (without authorization or notification of the copyright owner)?

And the answer is, thus far, a resounding... "No".

The Can of Worms

What happens if the judge chooses to uphold the existing judgment against The Internet Archive?

A number of things seems possible (with some seeming like a downright certainty).

  • Publishers, authors, and copyright holders of works distributed by The Internet Archive may choose to seek damages.  Which could put The Internet Archive in a precarious financial position (to say the least).
  • The Internet Archive may be forced to remove other content of questionable copyright.  Including software, video, and audio archives.
  • Other archival projects may now come under increased scrutiny... thus making it riskier to archive and distribute various types of material.
  • And, of course, The Internet Archive could attempt to appeal the case ever higher.  Which may be tricky.

Then again... The Internet Archive could win this appeal.

Unlikely.  But, hey, weirder things have happened.

community logo
Join the Lunduke Community
To read more articles like this, sign up and join my community today
16
What else you may like…
Videos
Podcasts
Posts
Articles
December 10, 2024
Al "Slop" Bug Reports Hurting Python, Curl, & Other Open Source Projects

"Low-quality, spammy, and LLM hallucinated security reports" taking time away from real bugs and features.

00:20:58
December 09, 2024
Microsoft Lessening TPM Requirement for Windows 11?

One week after doubling down on the TPM requirement, Microsoft lightens up. A little. But... why?

00:08:32
December 09, 2024
Inaccurate Computing: AI, Quantum, & The Error-Filled Future

Traditional, binary computing is built on extreme accuracy and consistency. Quantum Computing & Al are founded in uncertainty and computational hallucinations.

What does that mean for the future of computing in general?

00:24:36
November 22, 2023
The futility of Ad-Blockers

Ads are filling the entirety of the Web -- websites, podcasts, YouTube videos, etc. -- at an increasing rate. Prices for those ad placements are plummeting. Consumers are desperate to use ad-blockers to make the web palatable. Google (and others) are desperate to break and block ad-blockers. All of which results in... more ads and lower pay for creators.

It's a fascinatingly annoying cycle. And there's only one viable way out of it.

Looking for the Podcast RSS feed or other links? Check here:
https://lunduke.locals.com/post/4619051/lunduke-journal-link-central-tm

Give the gift of The Lunduke Journal:
https://lunduke.locals.com/post/4898317/give-the-gift-of-the-lunduke-journal

The futility of Ad-Blockers
November 21, 2023
openSUSE says "No Lunduke allowed!"

Those in power with openSUSE make it clear they will not allow me anywhere near anything related to the openSUSE project. Ever. For any reason.

Well, that settles that, then! Guess I won't be contributing to openSUSE! 🤣

Looking for the Podcast RSS feed or other links?
https://lunduke.locals.com/post/4619051/lunduke-journal-link-central-tm

Give the gift of The Lunduke Journal:
https://lunduke.locals.com/post/4898317/give-the-gift-of-the-lunduke-journal

openSUSE says "No Lunduke allowed!"
September 13, 2023
"Andreas Kling creator of Serenity OS & Ladybird Web Browser" - Lunduke’s Big Tech Show - September 13th, 2023 - Ep 044

This episode is free for all to enjoy and share.

Be sure to subscribe here at Lunduke.Locals.com to get all shows & articles (including interviews with other amazing nerds).

"Andreas Kling creator of Serenity OS & Ladybird Web Browser" - Lunduke’s Big Tech Show - September 13th, 2023 - Ep 044
3 hours ago

Have you heard about YouTube's new audio dubbing? They are rolling it out now. New uploads for select creators and evrntually all creators. Will be copied to other languages, via the formerly named Aloud audio dubbing servive.

While this may help creators reach a wider audience. Who owns the rights to those new language dubbed copies? How might Google leverage that data? Might their AI in another language use creator data? YouTube is bragging about dubbing, but nothing about who owns those copies, or how they may be used.

3 hours ago

As someone who has done a fair share of wifi troubleshooting, this was pretty freaking fascinating

https://blog.apnic.net/2024/05/17/a-transport-protocols-view-of-starlink/

I spent about an hour testing Grok's image recognition feature, this morning. The results were far less than impressive... (Swipe/scroll for more images)

post photo preview
Linux Foundation Drops Linux Spending to Historic Lows in 2024
Plus: Skyrocketing revenue, and no mention of "Diversity" or "Climate Change".

The Linux Foundation, earlier today, released their 2024 Annual Report.  And, hoo boy, is it a doozy.

The short-short version: Massive increase in revenue (now close to $300 Million Dollars), with spending on Linux continuing to drop to historically low numbers.

And, in a dramatic departure from previous years, almost zero discussion of politically charged topics (such as Diversity, Equity, Inclusion, & Climate Change).

Let's start with the numbers.

 

Skyrocketing Revenue

 

First and foremost, it's worth pointing out that -- as of this year -- revenue for The Llinux Foundation is closing in on 1/3rd of a Billion Dollars annually.

 

While The Linux Foundation may technically be a "non profit", those numbers would make many "for profit" corporations blush.  Massive, steady income growth.

Where does the largest bulk of that revenue come from?  Corporate "membership" dues, naturally.  To the tune of over $125 Million USD.

 

With the highest paying corporate members being the likes of Meta, Microsoft, Oracle, Samsun, Red Hat (IBM), Huawei, and the like.

 

 

These corporations pay a premium to have a seat on The Linux Foundation Board of Directors.  Which, it should be pointed out, consists of over 70% GPL violators.

 

 

Spending on Linux

 

One of the peculiar facts about The Linux Foundation is how surprisingly little of their income they spend on... Linux.

And, perhaps even more peculiar still, is the fact that the percentage of their revenue spent on Linux appears to decrease every year.

In 2021, The Linux Foundation spent roughly 3.4% of their revenue on their namesake project.  As of 2024... that number appears to be down to 2.3%.

 

 

And this isn't simply a matter of overall percentages going down (while revenue rises).  Spending on the Linux Kernel is down, year on year, in terms of actual US Dollars as well.

 

 

In fact, the amount currently spent on "Corporate Operations" for The Linux Foundation... is roughly 3 times that of what is spent on the Linux kernel.

As time goes on -- and spending numbers become finalized -- we are gaining an increasingly clear picture of the spending priorities of The Linux Foundation.

 

No Diversity in 2024?

 

In the previous annual report (2023), "Diversity, Equity, & Inclusion" were a critical component.

In the 2023 report:

  • "Diversity" was mentioned 34 times
  • "Inclusion" 17 times.
  • With the general "DEI" topic -- including "LGBTQ" issues -- being a critical component throughout the report.  Page after page of DEI.

This year, in the 2024 report, the words "Diversity", "Equity", and "Inclusion" are never used.  Not once.

Well.  Once.  Barely.  On the second to the last page, in a footnote, you find the following statement: "75% of [travel] funding went to diverse community members."  That, right there is the sum total of discussion around "diversity".

In fact, the "LGBT" acronym is also never used in the most recent report (another significant change from previous years).

This appeas to mark a dramatic shift, away from "DEI", for The Linux Foundation.  At least in terms of messaging.

 

No Climate Change, Either?

 

The 2024 Linux Foundation annual report also contains absolutely no reference to "Climate Change".

"Wait, why would the Linux Foundation be talking about Climate Change," you ask?

Well.  Last year, in 2023, the annual report was filled to the brim with Climage Change -- with 37 distinct references and over 10 pages focused on the topic.

That focus appears to no longer be a priority for The Linux Foundation.

 

The Right to Fork

 

One of the most prominent new topics of the 2024 report was "the right to fork".  Something previous annual reports stayed clear of almost entirely.

 

“The right to fork open source code is at the core of open source licensing. All open source licenses grant the right to fork their code, that is to start a new development effort using an existing code as its base. Thus, code forking represents the single greatest tool available for guaranteeing sustainability in open source software.

 

In addition to bolstering program sustainability, code forking directly affects the governance of open source initiatives. Forking, and even the mere possibility of forking code, affects the governance and sustainability of open source initiatives on three distinct levels: software, community, and ecosystem.”

 

This is particularly interesting, given the stated intention for Russia to hard-fork Linux over the recent ban of Russian programmers from being official kernel maintainers.

 

Other Oddities

 

A few other facts which are worth noting from the 2024 Annual Report:

  • Neither the Executive Director, nor the Board Chair -- in their several pages long opening messages -- mentions the Linux Kernel.  Nor desktop, server, or mobile Linux.  Strange, right?
  • The 2024 Annual Report is only 45 pages long.  Compared to the 2023 report, which clocks in at 160 pages.
  • There is absolutely no mention of the mass banning of Russian developers during 2024.
  • Nor of the various other developers banned from the Linux Kernel this year.

What does all of this mean?  Will the decreasing spending on Linux continue into 2025?  Will the decreased emphasis on messaging around "DEI" issues translate to real-world changes?  Will the "right to fork" emphasis continue if Russia follows through with their proposed Linux kernel fork?

Lots of questions.  Lots and lots of them.

Read full Article
December 10, 2024
The Lunduke Journal Free Show & Article Archive

The Massive Free Lunduke Journal Archive

Looking for a particular video or article?  Below you will find a sampling of Lunduke Journal content, all of which is free for the world to enjoy (subscribers and non-subscribers alike).  

The following list is nowhere near complete -- and is being added to constantly.  If you're looking for a searchable, sortable index of every article and show, you'll want to go to The Lunduke Journal Content Archive at Lunduke.Locals.com/content (which is an added benefit for Lunduke Journal subscribers).

 

Lunduke Journal Articles

(You won't find these many of these stories covered anywhere else.)

Lunduke Journal Computer History Articles

Other Very Nerdy Articles

Lunduke Journal Regular Shows

"Linux Sucks" Shows (in order)

Read full Article
December 08, 2024
$10 Off Yearly, & Discounted Lifetime Lunduke Journal Subscriptions
(Available through end of day Monday, December 9th.)

The Lunduke Journal is 100% ad-free and 100% free from the influence of Big Tech.

To pull off this feat, we run the occasional mini-fundraiser.  A couple days of fundraising and sales to keep every show and article completely free of ads.  Which is pretty sweet.

As of right now -- after 2 days of fundraising last week -- we are just a little short of hitting our December funding needs.

To help push us over the finish line -- and keep the lights on here at The Lunduke Journal -- we're running a super quick sale with two sweet deals:

These deals are available through end of the day, Monday, December 9th.

Want to support truly independent Tech Journalism?  Scroll down.  Pick the subscription deal that's best for you.  Every single penny goes directly towards keeping The Lunduke Journal running (and sticking it to Big Tech).

$10 Off Yearly Subscription

Now through end of day Monday (Dec 9), you can grab a yearly subscription with a $10 discount.

The Famous Lifetime Subscription

The "World Famous Lunduke Journal Lifetime Subscription" is exactly what it sounds like. Pay once and get full access to The Lunduke Journal (with all the perks). For life.

New Lifetime Subscriptions are available, for $200, from now through Monday, December 9th. Then this option goes "back into the vault".

Here's how to grab one of these coveted bad boys for yourself:

  • Go to Lunduke.Locals.com/support.

  • Select "Give Once".

  • Enter "200" into the amount field.

  • After checking out, Lunduke will toss you an email once your account is set to full lifetime status. (This usually happens within a few hours.)

The Famous Lifetime Subscription (with Bitcoin)

You can also obtain a Lifetime Subscription via Bitcoin.

  • Make sure you have a Lunduke.Locals.com account (a free account works just fine).

  • Send $200 worth of Bitcoin (or more) to the following address:

bc1qyjakve8fywm8pz2v99v57yhjj0vzr2vjze6fcq

  • Email "bryan at lunduke.com" with the following information: What time you made the transaction, how much was sent (in Bitcoin), and the email address you use (or plan to use) on Locals.com.

 

Every subscription is appreciated!  You amazing nerds make The Lunduke Journal possible!

-Lunduke

Read full Article
See More
Available on mobile and TV devices
google store google store app store app store
google store google store app tv store app tv store amazon store amazon store roku store roku store
Powered by Locals