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.

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.

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.

Yesterday, Microsoft released the source code for MS-DOS 4.0... an action which I have encouraged Microsoft to take for many years (including when I worked at Microsoft).

And, while this source code release is most definitely a win for the preservation of computer history, there are some rather ridiculous issues with it.

Most notably:

• The source doesn't actually fully compile.  It is not usable in its current state.
• The source code has been modified by Microsoft -- even after the publication this week -- reducing the historical value of the code.
• Also Microsoft claims to have lost some source code.

Yeah.  You read that first bullet point right.  It does not compile.  I'll walk you through the details (including a step-by-step guide for how you can fail to compile MS-DOS 4.0 yourself).

But, first, a little backstory.

The MS-DOS 4.0 Story (The Short, Short Version)

MS-DOS 4.0, released back in 1986, was a bit of an oddity.  It was a multitasking version of DOS (similar in that way to Wendin-DOS).  And, importantly, it was not a direct continuation of the existing MS-DOS line -- in fact "MS-DOS 4.0" was released between versions "3.1" and "3.3" (almost exactly coinciding with the "3.2" release).

Fun Side Note: There are multiple multitasking variants of DOS (or ways to multitask in DOS).  Most of which were not built or supplied by Microsoft.  In case you didn't know that... now you do.

This Multitasking MS-DOS 4.0 was not commercially successful -- to put it mildly -- and that line of "Multitasking MS-DOS" was quickly abandoned.

Luckily -- or not luckily, depending on how you look at it -- IBM co-developed a completely different version of "MS-DOS 4.0" that had almost nothing to do with the multitasking version Microsoft created.  This IBM-made version, a continuation of MS-DOS 3.x, continued to be single-tasking.  But, oh-boy, was it buggy.  Legendarily buggy.

Ultimately, when it was obvious that the Multitasking "MS-DOS 4.0" was a dead-end, Microsoft took IBM's totally unrelated "MS-DOS 4.0" and released it also as "MS-DOS 4.0".  (Two different Operating Systems, same name and same version number.  Because that's not at all confusing.)  Then -- quickly -- re-worked a bunch of it -- releasing that as "MS-DOS 4.01".

That single-tasking version ("4.01") went on to have some success -- though it is widely regarded as one of the buggier releases of MS-DOS.

The MS-DOS 4.0 Source Release

Two totally different things named "MS-DOS 4.0".  So what, exactly, is Microsoft releasing the source code for?

Well.  There are two parts.

• A version of the source code for the IBM-developed, not Multitasking version of MS-DOS 4.0.
• An earlier Beta build of the Multitasking version of MS-DOS 4.0 (from 1984, long before it was even called "4.0").  No source code is available (other than for BIOS related utilities for OEMs), but there are some scanned documentation, which is nice from a historical viewpoint. 

Both are available via GitHub.  And everything is released under the MIT license.

Which means that, yes, if you can get that single-tasking 4.0 code to build... you can, in theory, fork these releases and continue developing them.  (Though you'll need to change the name, as Microsoft still holds the trademarks.)

This work was announced in a joint blog post by Jeff Wilcox (Head of Open Source Programs Office) and Scott Hanselman (Vice President of Developer Community) at Microsoft.

Fun Side Note #2: That Vice President, Scott Hanselman, is the same Microsoft executive who has previously encouraged people to commit crimes against people based on their skin color and gender.  Telling people to be ready to "go to jail" for those crimes.  While that bit of information has absolutely nothing to do with the MS-DOS 4.0 source code release... it's nice to have background on the people in the story.

What code, exactly, did we get?

This release, from Microsoft, is a valuable and interesting one.  It contains a great deal of historically significant information -- and I am absolutely filled to the brim with nerdy joy as I go through it.

Unfortunately... it does not include code for the multitasking version of "4.0".

From the announcement:

"Jeff Wilcox and OSPO went to the Microsoft Archives, and while they were unable to find the full source code for MT-DOS, they did find MS DOS 4.00, which we’re releasing today, alongside these additional beta binaries, PDFs of the documentation, and disk images. We will continue to explore the archives and may update this release if more is discovered."

As a former Microsoft employee... this is... strange.  And, quite honestly, not at all believable.

During my time working at Microsoft, I knew of backed up copies of source code for darned near everything -- including almost every version of MS-DOS from 3.3 onward (that I, personally, saw).

Yet they were unable to find code for the Multitasking MS-DOS 4.0?  Knowing, intimately, how the various groups within Microsoft handled backing up source code and binaries for releases... this statement from Microsoft makes me highly skeptical.

Unless Microsoft completely forgot how to backup source code in the last few years, I'm going to call this claim utterly bogus.

Is it Actually MS-DOS 4.0?

Just to make everything far more confusing than it already is... this may not actually be MS-DOS 4.0.  It might be MS-DOS 4.01... or PC-DOS 4.01... or some strange combination.

Take a look at SETENV.BAT in the source code release and you will find the following line:

echo setting up system to build the MS-DOS 4.01 SOURCE BAK...

What files I have been able to build appear to exactly match the MS-DOS 4.0 (not 4.01) release images.  But, being as some of this source code release is mangled beyond use, unfortunately we can't really be sure that everything matches the actual 4.0 release.  It might be an interim build between 4.0 and 4.01.

Oh!  That's right.

Did I mention that this source code release of MS-DOS 4.0 doesn't successfully build?

The Code Does Not Compile

Allow me to repeat myself:

The code that has been supplied contains significant problems which will prohibit it from compiling a complete, working version of MS-DOS 4.0.

I attempted build under multiple environments (including on a released version of MS-DOS 4.01, MS-DOS 5, PC-DOS, and under DOSBox) -- and dug through the errors until I was confident of the issues (and, importantly, was confident that we weren't simply looking at an obvious case of user error).

Note: If you want to skip the "How To Build It" portion, simply scroll down to the "BOOM!  ERROR!" section below.

Want to unsuccessfully build MS-DOS 4.0 yourself?  Here are some super easy to follow steps.

1. Download the contents of the MS-DOS 4.0 GitHub repository.
2. Install DOSBox.  (Seriously, this works just as well in DOSBox as it does anywhere else.)
3. Within DOSBox run the following command: "MOUNT D PATH" (replace "PATH" with the path to that folder you downloaded in step 1).

If you did everything correctly, you will now -- within DOSBox -- have a D:\ drive with a directory named "SRC" in it.

The BAT and make files which build MS-DOS 4.0 expect all of the files to be in D:\SRC.  So replicating that environment will make it so you don't need to tweak any files at all.

Now we actually do the build.

1. Change to the D:\SRC directory.  "D:" then "CD SRC".
2. Now run "SETENV.BAT".  This will setup the paths and whatnot for the build environment.
3. Then simply run "NMAKE".  That will kick off the build for everything.

Easy, right?

BOOM!  ERROR!

At this point you will quickly see that several files compile cleanly.  Until you get to GETMSG.ASM and, later, USA.INF.  Both of these files are mangled.  I was able to force GETMSG.ASM to compile by commenting out some lines... but USA.INF is completely hosed.

I don't see how whoever uploaded this source could have possibly done a successful compile prior to releasing it.

Seriously.  Hosed, I say!  Hosed!

It's not all bad news, luckily.  The majority of the code does appear to be here -- and most of it builds without any catastrophic errors.  With some work (a replaced file here, some re-written code there) I am confident a variant on this MS-DOS 4.0 release will be able to be built... unfortunately, because of changes needed to make it compile, it won't be a historically perfect replica of the system.

Not without Microsoft figuring out what they did wrong and re-releasing the source code.  Which, considering how rarely Microsoft releases source code for these historical pieces of software... I won't be holding my breath.

Fun Side Note #3: After Microsoft announced the source code release of MS-DOS 4.0, a huge number of articles have popped up on a number of Tech News sites.  Tech Journalist after Tech Journalist praising the release.  Yet not one of them has reported that the code does not actually compile.  Which means that none of them even tried to verify the claims from Microsoft.  Not.  One.  Except for The Lunduke Journal, of course.  I'll let you draw your own conclusion about what that means.

The historical record has been compromised... a little.

It doesn't build.  That's a problem.

Also, it's kind of hard to be 100% sure what this specific release even is (is it 4.0... is it 4.01... is it from IBM or MS?  An interim build?  It looks mostly like 4.0... but there's some weird bits that could use clarification.).

But what makes this even worse... is that not only has some of the code been mangled and corrupted... but some of the code comments were actively modified in the few hours after the source code was publicly posted!

Thus further destroying the historical value of this source code.  Which, to put it mildly, kinda sucks.

Brain-damaged Tim Patterson

But, as luck would have it, that source code change... is really, really amusing.  And pretty minor.

A modified comment.  "Brain-damaged Tim Patterson" becomes "Brain-damaged TP".

It's a simple change -- obscuring an insult of Tim Patterson (the original creator of Quick & Dirty DOS)... replacing his full name with his initials.  But, if this is a historical record, this change should not occur.

Here's a fun question: Who, exactly, made this change?  Microsoft is not accepting any changes to this source code repository from the outside world.  So, whoever made the change has the blessing of Microsoft.

Well, hold on to your butts!

This change was made by GitHub user "mzbik", with the simple comment "MZ is back!".

Ok.  Great.  But who the heck is "MZ"?

None other than the legendary Mark Zbikowski.  One of the early Microsoft employees (joining in 1981) -- and the programmer who took over the MS-DOS project (from Tim Patterson) starting with version 2.0... and leading DOS through version 4.0.

Clearly Mark -- who usurped Tim as the Dev Lead / Manager of MS-DOS -- did not want that little "Brain-damaged" insult of Tim to be part of the historical record.

Or, perhaps, he really wanted to call attention to it by making the change.

Either way, we now can be somewhat sure that Mark Zbikowski, himself, wrote that comment way back in the 1980s.  And, even more fascinating, Mark remembered that comment -- from the '80s -- so clearly that he knew to quickly go and change it -- almost immediately -- once the source was made public.  (I barely remember source code comments I made last week, let alone almost 40 years ago... this really stuck with him!)

And that level of irreverent whimsy -- one historically significant programmer insulting another historically significant programmer... in source code comments -- makes me smile.

Ok, sure.  That change isn't a huge deal.  In fact, I'm now glad it happened as it drew my attention to it.

But what else has been changed?  What else will be changed?  It's worth asking.  This is for the preservation of history, after all.

Lots and Lots of Questions

In fact, this release raises a lot of questions.

• Why was building of this source code not tested prior to release?
• What process caused these source code files to be mangled?
• What all was changed from the original source archive?
• Why has Microsoft only released source code for the 3 least popular versions of MS-DOS (1.25, 2.0, & 4.0)?  Microsoft does not profit from versions 3.3, 5.0, or 6.x (far more popular and/or useful releases).  Why are those being held back?
• Microsoft loves to tell people how much they love Open Source... yet they have released source code for only a very small number of products (far less than 1% of their total software releases).  Even ancient software, unsuported for decades, remains closed source.  Why?
• The last release of MS-DOS source code (versions 1.25 and 2.0) occurred 10 years ago (2014).  Why has it taken 10 years to release source code that Microsoft hasn't used since the 1980s?  Will the next release of source code be 10 years from now... in 2034?
• And, shoot, why has not one other Tech News publication actually tried to compile this code... or notice the changes being made... or look into the details at all?

I don't mean to sound like a Negative Nancy, here.  This release is, without a doubt, incredibly interesting and important.

And Microsoft is under no obligation to release the source code for these pieces of software.  No obligation whatsoever.  If they wanted to keep it all locked away in their vault, that's entirely their call.

That said, Microsoft's near constant declarations of their "love for Open Source" -- including their ownership of GitHub -- would suggest to me that they would be eager to release the source for 30 and 40 year old software that they haven't earned a penny on in decades.

If they truly loved the idea of "Open Source"... they would do it.  In a heartbeat.  But they don't.  Which tells me a lot about their actual views on "Open Source".

Some things never change...

When I worked at Microsoft -- in the late 1990s and early 2000s -- I pushed, regularly, to release code, binaries, and documentation of historicaly significant Microsoft software.  The old stuff that nobody used anymore, but which should be preserved and studied for posterity.

Back in those days, I got a lot of push-back.  To put it mildly.

Microsoft management was extremely hesitant to release code -- and even free binaries -- of these historic products.  And, honestly, it looks like that situation has barely improved since then.  Shoot.  What they do release doesn't even compile.

Just the same: I applaud Microsoft for releasing this MS-DOS 4.0 code!  Truly, I do!

Now... release some more!  Preferably without mangling the code this time.

And don't give me any of that "we can't find the code for our most famous products" malarkey.  The Lunduke Journal knows better.

Over the last several months, we've learned a great deal about the racist and sexist policies within Red Hat (the largest Linux company on Earth) and parent company, IBM.

This includes corporate training which teaches that "Whiteness" is a bad thing, racist "pledge" systems, skin-color based hiring quotas, and more.

Now, thanks to whistleblowers continuing to provide leaked material to The Lunduke Journal, we have learned that Red Hat ignores reports of corporate ethics violations... when those violations are in line with Red Hat's established racist policies.

Red Hat's Ethics Violation Reporting System

Red Hat provides only one system which allows employees to anonymously report ethics violations: The "Red Hat Ethics Hotline" provided by a company named Convercent.

The "Ethics Hotline" includes this note from Tom Savage, Senior Vice President (and General Counsel) for Red Hat:  

"Whether you speak up through this Compliance and Ethics Hotline or another reporting channel, take comfort in knowing, as outlined in the Code of Business Conduct and Ethics, that Red Hat is committed to protecting associates from retaliation."

However, this statement from Red Hat's General Counsel appears to be untrue.  Or, at the very least, Red Hat employees do not believe it to be true.  As reported by whistleblowers within Red Hat, it is felt that making purely anonymous complaints is the "only safe way of reporting politically sensitive topics."

Ethics Violations Ignored by Red Hat

According to one whistleblower, reports of ethics violations are "always ignored".

Another whistleblower submitted multiple reports using the "Ethics Hotline", only to have each one "Closed" with no details or resolution of any kind.  Reports were closed "suddenly, with no notice or explanation or marking."

The following is a screenshot of one such ethics violation report, using the "Ethics Hotline", which has been "Closed" with no messages, attachments, or response of any kind.

You'll note that this ethics violation report deals directly with race and sex-based discrimination within the hiring and career advancement programs at Red Hat.  A topic which, regardless of outcome, is the type of potential "ethics violation" (with severe legal consequences) which any company would want to take seriously.

Yet this "Ethics Hotline" report -- along with several others provided to The Lunduke Journal for review -- was marked as "Closed" with not so much as a note explaining why.

Whether it be the fault of the system being used, an issue with Red Hat corporate policy, or actions of the individuals responsible for reviewing these violation reports... one Red Hat whistleblower says "there is no real way for employees to report ethics violations."

What we know:

• Red Hat (along with parent company, IBM) has multiple racist & sexist programs -- of, at best, dubious legality -- many of which would constitute clear ethics violations.
• While Red Hat provides a mechanism for employees to report such ethics violations, those reports (at least when dealing with the racist & sexist actions of individiuals within the company, and corporate policy) are ignored and "Closed" without a stated reason.
• Red Hat employees feel "unsafe" reporting such violations in any non-anonymous way.

These facts paint a highly unsavory picture of Red Hat's commitement (or lack thereof) to behaving and doing business in an ethical way.

As always, The Lunduke Journal invites Red Hat (and parent company, IBM) to respond if any information within this report is inaccurate in any way.  The Lunduke Journal prides itself on accurate, factual reporting and will publish corrections, comments, or clarifications provided by the company.

Become a Supporter

Become a Tech Whistleblower

The Lunduke Journal takes the privacy of whistleblowers incredibly seriously -- we have a firm rule of never revealing any information regarding the identidy of whistleblowers, and all leaked material is meticulously researched and scrubbed (with all possibly identifying metadata removed) prior to publication.

Do you work in the Tech industry?  Have you witnessed concerning activity, which you feel should see the light of day, but don't know how to get the information out there anonymously?  This article will walk you through the process, step by step:

• How to leak info to The Lunduke Journal (anonymously and securely)

Thank you to all of the brave whistleblowers who have already come forward.  As they say, sunlight is the best disinfectant.