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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
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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

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 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,, 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.

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GNOME bans Manjaro Core Team Member for uttering "Lunduke"
"Lunduke" has become the "He Who Shall Not Be Named" of Big Tech and Open Source

The GNOME team has censored -- and deleted the account -- of the maintainer of Manjaro Linux GNOME Edition.

Why would GNOME take such a drastic action for a person so important to the packaging and distribution of GNOME software?

Because that Manjaro Linux GNOME Edition maintainer... dared to post a link to an article published by The Lunduke Journal.

How to Get Banned from GNOME in 1 Easy Step

On July 21st, The Lunduke Journal published an article entitled "GNOME Ousts Elected Board Member in Secret... and Tells Nobody for 2 Months" -- covering the expulsion and banning of GNOME Board Member, Sonny Piers.

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Screenshot of the post prior to deletion.


Within roughly 1 hour, that post was flagged and hidden...


Screenshot of the post after it was hidden.


Shortly thereafter, the post was deleted entirely... as was Mark Wagie's account.

That's right.  GNOME deleted the account of a Manjaro Team Core Member, and a GNOME package maintainer.  All because he posted a link to an article that had the name "Lunduke" on it.

From Mark Wagie:


"Today, I dared sharing your article on the GNOME Discourse forum in the Updates to the GNOME Foundation Board of Directors Roster topic. It didn't take long before my reply was flagged as spam and hidden. My account was also deleted with no communication whatsoever. I was able to take screenshots before my account was deleted.


A fellow Manjaro forum user told me he messaged the GNOME Discourse Moderators and 'questioned the wisdom of banning the Manjaro GNOME maintainer from their forums.'"


This is, without question, incredibly peculiar.  Banning a prominent contributor?  All because he posted a link to an article relevant to a topic being discussed?

An article, I might add, that nobody has objected to based on the facts.

Is the leadership of GNOME so afraid of the truth of their actions being exposed, that they resort to banning anyone who simply links to articles about GNOME?

Or, perhaps, is the GNOME leadership filled with so much hatred and fear for all things "Lunduke" that they are willing to cut off their own nose to spite their face?

He Who Shall Not Be Named

Here's something truly crazy: This isn't the only instance of people being censored (and banned) from portions of the GNOME project for uttering the name "Lunduke"... this week.  This is simply the most ridiculous example.

While it's true that the GNOME Foundation operates with a high level of secrecy -- often ignoring members of the press entirely -- they appear to reserve the bulk of their animosity for anyone who dares to mention articles or shows from The Lunduke Journal.

And they are not alone.

Leadership throughout the Big Tech and Open Source world have hard "Do not mention Lunduke" policies -- with some within the Open Source industry regularly screaming, bullying, and threatening anyone who dares to link to The Lunduke Journal.

One prominent Linux distribution even went so far as to add automatic censorship to their forum -- which instantly changed the word "Lunduke" to "violates forum rules".




Likewise, members of the Fedora (Red Hat) Linux Marketing Team speak openly about the need for hard censoring anything related to "Lunduke".  (The Fedora Marketing Team also likes to call Jewish men "Nazis", apparently.)




The fact is... they fear the word "Lunduke".

Why?  Because, when you do shady things, the truth makes you look bad.  Wikipedia, Red Hat, The Linux Foundation, Google, Microsoft, and, yes, even GNOME (and so many others).  They fear the truth.

The Lunduke Journal reports the truth.

All of which has resulted in "Lunduke" becoming the Big Tech and Open Source equivalent of "Voldemort" or "Beeltejuice".  Should that name be uttered a little too loudly -- or, perhaps, three times in a row -- Lunduke will appear and wreak havoc.

And, you know what?

I'm ok with that.

Because here's a fun secret about being "He Who Shall Not Be Named"...

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GNOME Ousts Elected Board Member in Secret... and Tells Nobody for 2 Months
Secret meetings. No transparency. Total chaos.

The chaos at the GNOME Foundation continues, as it is revealed that an elected GNOME Board member was forced out in a secret meeting... held two months ago, but withheld from the public until now.

Chaos and Secrecy within GNOME

As you may remember, GNOME recently announced that they were in dire financial circumstances... followed immediately by the resignation of their Executive Director (who had only been on the job for 9 months, with almost nothing to show for her time).

Now, the GNOME Foundation Board has announced that they have removed one of their recently elected Board Members... in a "Special Meeting"... held on May 17th.

Yet this fact was kept secret until July 17th -- two months later -- when they made the following statement:


"The GNOME Foundation Board voted to remove Sonny Piers as a member of the Board of Directors for cause, at a Special Meeting on May 17th, 2024, following the procedure outlined in the GNOME Bylaws, and remove him from all committees. Effective May 25th, 2024, his seat is now vacant, and in accordance with the Bylaws will be filled for the remainder of its term by an appointment made by the Board.


A Code of Conduct complaint was also made against Sonny Piers. The Foundation is engaged in a mediation process with him, which is still ongoing and so we are unable to share more information at this time."


Sonny Piers, first elected less than a year earlier, was forced out of his seat on the GNOME Board.  Unexpectedly.

Why?  That information is not provided.  In fact the meeting minutes for this May 17th "Special Meeting" are incredibly vague... providing almost zero information.

Almost total secrecy about the reason for this Board Member being forced out of the GNOME Foundation.


May 17th, 2024 "Special Meeeting" Minutes


This forced removal was not limited to the seat on the GNOME Board... the GNOME accounts of Sonny Piers all have (seemingly) been blocked or banned.  Including source control.


The ousted Board Member was even blocked from all source control.


Who is Sonny Piers?

There are multiple things which makes this incident extremely peculiar.  Not least of which is the fact that Sonny Piers is one of the most effective and prominent members of the GNOME project: Being the creator and developer of GNOME Workbench, and one of the orchestrators of the 1 Million Euro Sovereign Tech Fund grant from late last year (one of the only pieces of positive news from GNOME in quite some time).

If you were to create a list of the 5 most important, influential, and effective people within GNOME... Sonny Piers would make that list.  Easily.

According to a July 21st statement from Sonny Piers, his ousting from the GNOME Board was a "shock" to him:

"I am no longer a member of the board of directors of the GNOME Foundation since May 2024. The process and decision shocked me. I know people are looking for answers, but I want to protect people involved and the project/foundation. It was never an interpersonal conflict for me."

While we can read between the lines on some of this statement... there are very few details here about what, exactly, transpired.

GNOME Does Damage Control

After this news began to spread within the GNOME world (and after The Lunduke Journal reached out to him for comment), the GNOME Foundation President, Robert McQueen was forced to make a public statement:

"This has also been an unprecedented situation for the Foundation. The Directors have met 15-16 times this year so far already and directed a great deal of time and attention into making this decision and trying to find the least worst outcomes, considering our legal and moral obligations to the community, the staff, and the Foundation — obligations which have sometimes felt in tension."

Least worst outcomes?  Legal and moral obligations?

A secret vote to oust an elected official.  Followed by keeping it a secret from the voters.  How is that a "moral obligation"?

While we're not getting many details from GNOME about why they ousted an elected Board member... the words chosen raise many, many additional questions.

"Regarding the Board decision; whilst the Board did receive a report from the CoCC, removal of a Director is a separate process as set out in the Bylaws and solely at the authority of the Board. The Board considered it separately and independently as we are required to do, and made our own autonomous decision by a significant majority. We took outside legal advice on the situation and the process at multiple points, and it was duly followed. For the purposes of limiting legal liability, that advice also included making the announcement very terse and factual. I appreciate this is at tension with the transparency that the community would hope to see, but Directors are also obligated to look after the Foundation’s legal requirements and financial interests."

We know that the GNOME "Code of Conduct Committee" was involved in some way. 

According to that "Code of Conduct Committee" there were only two "incidents" which were "actionable".  Based on their reporting (which is incredibly vague and secretive), that incident would be one of the two items listed in this report.


Code of Conduct Committee Report


No names.  No details.  Complete secrecy.

Likewise, outside legal counsel was saught by the GNOME Foundation on whatever this matter was.

And why did the GNOME Foundation keep all of this a secret for two months?  Their statement on the matter seems rather... weak.


"Regarding the timing; the previous Board was intentionally refraining from announcements while we made arrangements for mediation mentioned in the announcement. Subsequently during the election period we did not want to appear to be interfering in the election which runs autonomously with its own timeline, and since the election the new board has only had its first official meeting (i.e., duly notified, with quorum, able to make votes) to approve this announcement on Wednesday before GUADEC."


To be clear: The GNOME Foundation subverted the votes of the GNOME Foundation Members, by ousting an elected board member (in secret)... and the reason they didn't tell anyone about it for two months is... that they were making "mediation arrangements"?

And they only, just now, felt the need to tell people what they had done... because people would find out anyway at their annual conference (GUADEC)?


I'll be honest here... I don't buy it.  The GNOME statement, quite simply, doesn't hold water.

So Many Questions

These events raise so many questions and concerns regarding the GNOME Foundation.

  1. Why was Sonny Piers ousted from his elected seat on the GNOME Foundation Board?
  2. Why was this action done entirely behind closed doors, with absolutely zero documentation regarding this vote?
  3. Why was this undocumented vote, in this "Special Meeting", kept secret for two months?
  4. Why does GNOME only feel the need to tell people what actions they take, in secret, when their secret activities are on the verge of being discovered?
  5. Why was "legal advice" necessary?
  6. Does the ousting of Sonny Piers have anything to do with the other events happening within GNOME during the same time period (the removal of the "GNOME Shaman" Executive Director, the massive flop of the "5 Year Plan", and the announcement of financial difficulties)?

Will GNOME answer any of these questions?  If their past (and current) dedication to secrecy are any indication... probably not.  Heck.  GNOME bans critical tech journalists from even asking questions in their forums.

Thoughts From Lunduke

If I were a voting member of the GNOME Foundation, I would find this all deeply troubling.

If the GNOME Foundation can get rid of undesirable board members -- 100% in secret, without ever giving justification... and not even telling GNOME voters that they did it for multiple months -- then that means GNOME Members have absolutely no power within the Foundation.  Their votes simply do not matter.

It should be noted that The Lunduke Journal reached out to multiple people with questions and a request for comment on this story, including:

  • The entire GNOME Foundation Board
  • The GNOME Foundation Code of Conduct Committee
  • Sonny Piers

Several hours after reaching out, both Sonny Piers and the GNOME Foundation President posted the statements outlined earlier in this article.  Yet, as of the publishing of this article, not one representative from GNOME has directly responded.  And the public statements failed to answer any of the questions asked above.

GNOME is a critically important suite of software -- used by numerous prominent, consumer-focused, open source operating systems... as well as relied upon by all of the major Linux Enterprise corporations.  What happens to GNOME can have a significant impact on the entire Linux, BSD, and Open Source ecosystem.

The extreme levels of secrecy within the GNOME Foundation -- coupled with their repeated chaos and failures -- raises significant concerns.

The GNOME Chaos Timeline

There's so much going on within GNOME... it can be hard to keep it all straight.

Here is a timeline, covering roughly the last year, of some of the key events discussed within this article (along with some of the other events relating to the GNOME Foundation).

What will happen next?  More chaos, disaster, drama, and secrecy?  We'll find out.

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