By Dan Kennedy • The press, politics, technology, culture and other passions

Tag: Internet Archive

A federal judge delivers an easily predicted rebuke to the Internet Archive

Photo (cc) 2020 by Nenad Stojkovic

Good story, bad headline. “The Internet Archive has lost its first fight to scan and lend e-books like a library,” proclaims The Verge. In fact, U.S. District Court Judge John Koeltl ruled Friday that if the Archive wants to lend e-books, it must do so like a library — by purchasing a license and thus compensating publishers and authors for their work.

The only surprise is that Koeltl acted just a few days after a hearing in his New York courtroom. Then again, maybe it shouldn’t be a surprise. When an argument is so wrong-headed as the one advanced by the Archive, there is no reason for justice not to be swift and certain. It was ludicrous for the folks at the Archive to believe they could simply scan books they own and lend them out. I mean, why didn’t the local public library think of that?

Brewster Kahle, the Archive’s founder, has this to say:

Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society — owning, preserving, and lending books.

This ruling is a blow for libraries, readers, and authors and we plan to appeal it.

Good grief. Certainly there’s a critique to be made of the restrictive manner in which publishers make e-books available to libraries. But simply ignoring the law is not a smart strategy for dealing with that. I just hope the Archive is able to survive this incredibly wrong-headed gamble.

Earlier, with more background:

Why the Internet Archive’s copyright battle is likely to come to a very bad end

The Library of Alexandria via Wikimedia Commons.

Simply as a matter of copyright law, I’m afraid that the Internet Archive — one of the most valuable corners of the internet — is about to fall off a cliff, taking with it our access to countless old websites, newspapers and other content.

Let me explain. On Monday, a federal judge in Manhattan heard opening arguments in a lawsuit brought by four major book publishers who argue that the Internet Archive is violating copyright law by digitizing books in its possession and lending them for free. Blake Brittain reports for Reuters that the proceedings did not appear to go well for the Archive, with U.S. District Judge John Koeltl asking “pointed questions.”

“You avoid the question of whether the library has the right to reproduce the book that it otherwise has the right to possess, which is really at the heart of the case,” Koeltl reportedly told the Archive’s lawyer, Joe Gratz. “The publisher has a copyright right to control reproduction.” Yikes.

The Archive ramped up its lending during the COVID-19 pandemic and has not cut back even though life has more or less returned to normal. The Archive argues that it’s doing what any library does — it’s lending books that it owns, and it’s controlling how many people can borrow a book at any given time. In other words, it’s not simply making electronic versions of its books available for mass download. That may show some desire to act responsibly on the Archive’s part, but that doesn’t make it legal.

By contrast, a library typically buys one or more hard copies of a book and lends them out, or buys the right to lend e-books to its patrons. The operative word in both cases is “buys.” Money changes hands. Publishers and authors are compensated. Buying a hard copy of a book, digitizing it without any additional payment, and then lending it out is illegal, regardless of whether the lending is controlled or not. I find it kind of stunning that the Archive would put its entire free service at risk over such an obviously wrong stand.

“If this conduct is normalized, there would be no point to the Copyright Act,” Maria Pallante, chief executive of the Association of American Publishers, told (free link) Erin Mulvaney and Jeffrey A. Trachtenberg of The Wall Street Journal. Indeed, the Journal story notes that Google won its own legal battle over Google Books only by limiting what you can find to snippets of books, not the entire text.

I should point out that the Archive is not without some powerful friends of its own. The Electronic Frontier Foundation is providing legal assistance. In addition, Inside Higher Ed published a commentary written by a number of Archive supporters who argue that the Archive is a legitimate library, and that its “controlled digital lending” system, which limits lending to one user at a time, is covered by the fair use provision of copyright law.

“The argument that the Internet Archive isn’t a library is wrong,” according to the Inside Higher Ed essay. “If this argument is accepted, the results would jeopardize the future development of digital libraries nationwide.”

Oh, and by the way: Inside Higher Ed limits users to five free articles a month before you have to pay for a subscription — which, of course, it has every right to do.

I looked up my own books and found that two of the three, “Little People” (2003) and “The Wired City” (2013), are available for borrowing. I don’t mind. Whatever economic value they had has long since expired, and if someone would like to read them for free without using a traditional library, that’s fine. But I certainly would have objected during the first couple of years after they were published. Rodale paid me a decent advance for “Little People,” which funded the time off I took in order to research and write it. “The Wired City” was published by the University of Massachusetts Press, an academic publisher that survives from sales to libraries, both in hard copy and electronic form.

The Internet Archive is a godsend. Just recently I used it to look up the original version of a New York Times editorial that prompted Sarah Palin’s unsuccessful libel suit. The Archive has also digitized nearly every print edition of The Boston Phoenix through an arrangement with Northeastern University, which holds the copyright thanks to the generosity of Stephen Mindich, the late publisher. Along with Wikipedia, the Archive is one of the last uncorrupted places on the internet.

Ideally I’d like to see the Archive work out an arrangement with the book publishers that might limit but not shut down its book-lending program. My fear, though, is that this is headed for a very bad end.

A disappeared alt-weekly highlights the challenge of saving digital archives

Paul Farhi of The Washington Post has an amazing story (free link) about The Hook, an alternative-weekly that used to publish in Charlottesville, Virginia. Its online archives disappeared after they were sold to a mystery buyer. Circumstantial evidence suggests that the buyer was a litigious deep-pockets guy who wanted to make invisible The Hook’s reporting about a sexual-assault case he was involved in years earlier.

Keeping online archives active and usable is a real challenge. Though what happened to The Hook was pretty unusual, it’s not unheard-of for valuable digital resources simply to disappear. Fortunately, the defunct alt-weekly I worked for, The Boston Phoenix, is available online through Northeastern University and the Internet Archive. You can find the Phoenix here.

It’s even more of a problem when the resource was digital-only and there was no print component that can be saved on microfilm. For instance, Blue Mass Group, a progressive political website that was a big deal in Massachusetts at one time, has been seeking a new digital home as the last of the co-founders, Charley Blandy, prepares to leave. Charley writes: “Plans are afoot for the site to be thoroughly crawled and archived. It won’t just disappear. The site will stay up, at least for a while, but for the purpose of archiving, commenting and posting will be disabled on 12/31/22.”

These resources need to be saved.

After a long delay, most of The Boston Phoenix print archives are now online

The Boston Phoenix’s archives have taken a giant step closer to becoming accessible and usable.

A few weeks ago I learned from Giordana Mecagni, the head of special collections and university archivist at Northeastern, that a deal had been struck with the Internet Archive to make print editions of the Phoenix available — and searchable — online. On Wednesday, it became official. Caralee Adams has the details at the Internet Archive’s blog.

I’m really thrilled that this has happened. I was on staff at the Phoenix from 1991 to 2005, most of that time as the media columnist, and I continued to write for the paper occasionally up until it closed in 2013. Two years later, the Phoenix’s founder and publisher, Stephen Mindich, donated the archives to Northeastern, a gift I helped arrange.

Unfortunately, Stephen died in 2018, and the hopes we all had of digitizing the collection stalled out. A couple of years ago there was talk of a grant proposal, but that didn’t go anywhere, either. So what happened? Adams explains:

As it turns out, the Internet Archive owned the master microfilm for the Phoenix and it put the full collection online in a separate collection: The Boston Phoenix 1973-2013. Initially, the back issues were only available for one patron to check out at a time through Controlled Digital Lending. Once Northeastern learned about the digitized collection, it extended rights to the Archive to allow the Phoenix to be downloaded without controls.

“All of a sudden it was free to the public. It was wonderful,” Mecagni told Adams. “We get tons and tons of research requests for various aspects of the Phoenix, so having it available online for free for people to download is a huge help for us.”

I’ve been playing with the new collection the last few weeks, and though it’s not perfect, it’s a big step forward. It encompasses papers starting in 1973, when Mindich, the publisher of a competing alt-weekly called Boston After Dark, acquired The Phoenix and renamed it The Boston Phoenix, up until the closing in March 2013.

There are some significant gaps; there appear to be no issues from 2011 or ’12, and just 33 from 2010, for instance. (I’ll bet there are ways of fixing that. I know that the Boston Public Library has the Phoenix in its microfilm collection, and perhaps it’s more complete than what the Internet Archive has.) And BAD, the pre-Mindich Phoenix and The Real Paper, founded by former staff members of The Phoenix following the 1973 acquisition, are all absent as well.

But this is a huge, huge step forward. As Carly Carioli, the last editor of the Phoenix, told Adams: “It’s a dream come true. The Phoenix was invaluable in its own time, and I think it will be invaluable for a new generation who are just discovering it now.”

Giordana Mecagni deserves huge thanks. From the beginning, she has understood the value of the Phoenix. This is a big step forward for her vision as well.

That link, once again, is right here. Enjoy!

The demise of Adobe Flash broke the 9/11 web. But it’s just the tip of a bigger issue.

This is an important story — not just because some crucial 9/11 coverage has been lost or even because the demise of Adobe Flash means that parts of the internet are now broken. Rather, it illustrates that the internet is, in many ways, an ephemeral medium, meaning that we simply can’t preserve and archive our history the way we could during the print era.

Clare Duffy and Kerry Flynn report for that The Washington Post, ABC News and CNN itself are among the news organizations whose interactive presentations in the aftermath of 9/11 no longer work properly.

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As they recount, Flash was a real advance in the early days of the web, as it was an important step forward for video and interactive graphics. But the late Steve Jobs, criticizing Flash’s security flaws, decreed that Apple’s iPhone and iPad would not run Flash. At that point the platform began to crumble, and Adobe pulled support for it at the end of 2020.

Duffy and Flynn write that some efforts are under way to use Flash emulators in order to bring some old content back to life. Adobe, which is worth $314 billion, ought to spend a few nickels to help with that effort.

More broadly, though, the problem with Flash illustrates how the internet decays over time. Link rot is an ongoing frustration — you link to something, go back a year or five later, and find that the content has moved or been taken down. Publications go out of business, taking their websites with them. Or they change content-management systems, resulting in new URLs for everything.

We’re all grateful for the work that the Internet Archive does in preserving as much as it can. Here, for instance, is the home page of The New York Times on the evening of Sept. 11, 2001.

But what’s available online isn’t nearly as complete as what’s in print. For the moment, at least, we can still go to the library and look at microfilm of print editions for publications that pay little attention to preserving their digital past. It won’t be too many years, though, before digital is all we’ve got.

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