The non-profit Internet Archive ( IA ) aims to preserve digital history for generations to come.

The organization literally archives key parts of the Internet, copying older versions of websites to preserve them for future generations. This information becomes more and more valuable as time passes by.

IA has plenty of other archive projects too. For example, it operates a library that offers a broad collection of digital media, including books, which patrons can borrow upon request.

Thousands of libraries have digital lending services but IA’s approach is different. The organization doesn’t license authorized digital copies from publishers; instead, its books are scanned and digitized in-house. Each copy can only be loaned to one person at a time, to mimic the lending attributes of physical books.

Lawsuit and Appeal

Internet Archive believes that its approach falls under fair use but publishers Hachette, HarperCollins, John Wiley, and Penguin Random House disagree. They filed a lawsuit in 2020 equating IA’s controlled digital lending operation to copyright infringement.

Earlier this year a New York federal court concluded that the library is indeed liable for copyright infringement . The court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit.

IA is not letting go without a fight and in December the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment. Among other things, IA argued that its lending activity causes no financial harm is substantially different from the ebook licensing market.

Fearing a ‘Napster moment’ for books , the publishers rejected the notion that outsiders can run their own digitization programs and operate distribution platforms, without rightsholders being involved. Rightsholders should remain in control of all digital copies to be monetized on their terms.

Both sides were supported by amicus briefs from interested parties, a clear indication of what’s at stake in this dispute. Before the court case moves forward, however, IA replied to the publishers’ Napster comments and other critiques.

IA Points Out ‘Critical Misconceptions’

The Archive maintains that its lending service is fair use. The organization points out that the publishers have several misconceptions about its service.

IA points out that it doesn’t lend out digital copies without limits. For each physical book, it will only lend a single digitized copy at the time. This fixed “owned-to-loaned ratio” sets it apart from many of the copyright-infringing services mentioned by the publishers..

“Controlled digital lending is not equivalent to posting an ebook online for anyone to read or copy or to peer-to-peer file-sharing by companies like Napster. Neither practice is based on use of a library’s lawfully acquired physical copy, and neither ensures that only the one person entitled to borrow the book (or recording) can access it at a time.”

IA further notes that it has no profit motive, which differs from companies that resell digital copies without permission. In addition, the enormous work that goes into digitizing the books makes it hard for others to do the same, so fears of a flood of similar services are overblown.

“[B]ecause 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,” IA writes.

Libraries Have Broad Missions

The brief goes on to counter the publishers’ “cramped” view of what libraries are for. Libraries are not just outfits that lend physical books to people nearby; their missions are much broader.

IA says that libraries make books available to a broad public, no matter their social status or location. They also preserve books for future generations and ensure that readers can enjoy books without giving up their privacy.

“Libraries provide readers more egalitarian access to a wider range of books, overcoming socioeconomic and geographic barriers by sharing resources with other libraries through interlibrary loans.”

“They also build permanent collections to preserve books, including older editions, for future generations. And they protect reader privacy, preventing disclosure of patron records that could chill access to information,” IA adds.

IA’s lending service advances this mission and was launched, in part, because the current ebook licensing schemes are seen as too restrictive.

A “Copyright” Balancing Act

The parties broadly agree on what the lending program entails and how it operates from a technical perspective. However, it’s the purpose and consequences that mostly determine whether a service is ‘fair use’, and here they have diametrically opposing views.

The publishers have argued that IA offers digital copies of their books without permission, which directly competes with its legal licensing business.

IA, in turn, doesn’t deny that copyrights play a role but stresses that its controlled lending is fair use. The reply highlights several arguments to make this point and concludes that the scale clearly tips in its favor.

The reply brief notes that the lower court didn’t properly balance the interests required by copyright law, largely overlooking the benefits the service has to the public at large, while strongly focusing on the financial aspect of copyright instead.

“[The District Court] decision barely mentions copyright’s ultimate purpose of ‘promoting broad public availability of literature, music, and the other arts’. Publishers do not deny that IA’s use serves this purpose; instead, they ask the Court to ignore that service and focus instead on copyright’s financial incentives for creativity.”

IA cites the Warhol Supreme Court case which made clear that fair use is a balancing act between the interests of the public and rightsholders. In this case, it believes that the balance favors its lending service.

“Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The district court’s failure to consider the latter contravenes decades of precedent recognizing that rewards are a secondary consideration, while promoting availability is primary,” IA informs the court.

“Here, the record shows that the balancing act between these purposes is better served by allowing the use than by preventing it,” IA concludes.

—

A copy of the Internet Archive’s reply brief, submitted at the Second Circuit Court of Appeals, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

From a standing start in 2016, manga piracy site Mangamura (Manga Village) took just two years to become the largest site of its type and the single largest online piracy threat Japanese publishers had ever encountered.

Publishers including Shogakukan, Kadokawa, and Shueisha, and their anti-piracy partner CODA, estimated that in its relatively brief time online, Mangamura had caused a staggering $2.91 billion in losses. In April 2018, in the wake of a government announcement that detailed emergency website blocking against sites including Mangamura, the site suddenly disappeared and was never seen again. Then came the reckoning.

A criminal investigation eventually led to the arrest of the site’s operator, Romi Hoshino, in Manilla. After being deported to Japan and arrested, Hoshino faced a criminal trial and in June 2021, was handed a three-year prison sentence and financial penalties totaling around $650K.

Publishers Sue For Damages

Hoping to recoup some of their losses, in the summer of 2022 manga publishers Kodakawa, Shogakukan, and Shueisha filed a civil action against the former operator of Mangamura. Their lawsuit sought damages of 1.9 billion yen ($12.3 million at today’s rates) from Hoshino, supported by evidence obtained from Google and Cloudflare , among others.

Following his release in 2022, Hoshino hit the headlines last September when promoting the imminent release of his new book, The Truth About Mangamura , which appears to have generated mostly positive reviews on Amazon .

Publishers Handed Big Win in Tokyo

Whether Hoshino’s book was a commercial success isn’t clear. However, a decision handed down today at the Tokyo District Court in the civil action, brought against him by the publishers, carries a damages award big enough to upset even the most successful authors.

According to the publishers’ complaint, around 8,200 pirated copies of manga and magazines (73,000 volumes) were offered on Mangamura. With monthly visits of up to 100 million, totaling 538 million between April 2017 and April 2018, the publishers estimated overall damages in excess of 320 billion yen, around $2 billion at today’s rates.

The publishers’ 1.9 billion yen claim, based on a calculation that multiplied the average number of views by the sales price of each of the 17 infringed works in suit, was the largest ever claim against a pirate site in Japan. Even then, it represented just a small part of the overall damages attributable to the site, the publishers argued.

Judge Masaki Sugiura agreed that Mangamura caused damage to the publishers but awarded less than the 1.9 billion yen requested. The award of 1.7 billion yen, around $11 million, is still believed to be a record amount for a piracy case in Japan.

Hoshino and Publishers Respond to Decision

Outside the Tokyo District Court, Romi Hoshino appeared happy to answer questions about the decision. The full video is embedded below for any native speakers or those who have any confidence in the accuracy of the transcript. While the translation doesn’t feel authentic enough for us to report on directly, there’s no doubt when it comes to Hoshino’s overall opinion of the decision.

He rejects the decision, the amount, and even the result of the first trial that landed him behind bars. In the short term, Hoshino says he may appeal today’s decision. Ultimately, however, he lacks any motivation to balance the books.

“I have no intention of paying anything,” he said, effortlessly closing the loop.

A statement published on Kadokawa’s website notes that the award for damages is appropriate; it also concedes that it will be “impossible to recover all of it.”

“We believe that it is of great significance that the illegality and liability for compensation regarding ‘Mangamura’ have been recognized in the judicial arena. Copyright infringement cases are not limited to pirated sites targeting manga, but also include movies, anime, etc., and the scope of damage is wide-ranging. Our company intends to take a resolute stance in dealing with cases of rights infringement,” Kadokawa concludes.

From: TF , for the latest news on copyright battles, piracy and more.

Founded back in 2011, Uptobox rapidly gained popularity by making it easy for users to upload, store, and share files with others online. In April 2023, Uptobox received 34 million visits from users all over the world, around a third of those from France.

At several points in its dozen or so years online, Uptobox faced adversity, mostly due to copyright issues. Last May, the site was blocked by French ISPs but determined to stay online, Uptobox provided its users with advice on how blocking could be circumvented.

On September 20, 2023, not even the most sophisticated techniques allowed users to connect to Uptobox servers. After obtaining authorization from a French court, the world’s largest entertainment companies, including Columbia, Paramount, StudioCanal, Warner Bros, Disney, Apple, and Amazon, descended on two datacenters used by Uptobox.

At Scaleway and OpCore, two cloud service providers based in Vitry-sur-Seine in the southeastern suburbs of Paris, servers were unplugged and seized as evidence in support of a civil action. The Alliance for Creativity and Entertainment eventually claimed responsibility and in a statement revealed that two French nationals were operating Uptobox from Dubai. It was always inevitable that the ‘criminal operators’ would find themselves shut down, ACE said.

Uptobox Said Little Until Recently

Given the gravity of any legal measures taken by a coalition with a combined worth expressed in triple-digit billions, Uptobox hasn’t said much over the past six months. Last December, via the service’s X account, the company said that all subscriptions had been frozen and would be extended. At a minimum, it would like users to get their files back .

Then on March 7, 2024, Uptobox appeared to offer more positive news. “Our position is to do everything to recover these servers and allow our users to recover their data, and more optimistically to resume our activity. Thank you all for your support,” a post to X revealed .

Dubai-based company Genius Servers Tech Fze is said to be the operator of Uptobox. It filed an appeal in October 2023 and the first hearing was held at the Paris judicial court a few days ago.

Server Costs Running to 75,000 Euros Per Month

Marc Rees of French publication l’Informé attended the hearing and had the opportunity to speak with Thomas Chalanset, Uptobox/Genius Servers’ attorney. He was critical of the seizure and the ex parte nature of the court order behind it.

“This is the first time the operator of the Uptobox/Uptostream service, Genius Servers Tech Fze has been able to present its case. The power of the companies in front of us must not let misleading appearances win the day,” Chalanset explained.

“The service risks being asphyxiated by server costs and the length of the proceedings, even if Genius emerges unscathed in terms of a conviction.”

Uptobox’s server bill currently runs to 75,000 euros per month and the current process has already been running for seven months. The nature of the case, currently in the hands of the public prosecutor, features parallel criminal proceedings for infringement filed by the plaintiffs. There are fears the process could run for years.

“Blocklist Inclusion Supported Seizure Operation”

Documents seen by l’Informé indicate that the movie companies used Uptobox’s inclusion on blacklists as justification for the seizure operation to go ahead. The first, the European Commission’s Counterfeiting and Piracy Watch List , mentioned Uptobox in its 2022 edition.

However, as the service’s attorney Thomas Chalanset points out, the European Commission “does not take any position” on any of the rightsholder allegations, including those below, that appear in the report. In any event, the Commission has never contacted Uptobox, Chalanset says.

Other actions against Uptobox all involved French regulator ARCOM; in respect of the first in 2023 , Uptobox claims to have received no correspondence and is now taking action to have the decision reversed. Two other judgments that resulted in the Uptobox domain being blocked by ISPs last year, are also being appealed.

No Different to Google Drive or Dropbox, Court Hears

According to l’Informé’s report on the proceedings, Thomas Chalanset informed the court that his client’s service is no different to Google Drive or Dropbox; if a complaint is received requesting the removal of infringing content, there’s an obligation to take it down.

Lawyers for the entertainment companies rejected the comparison; Google and Dropbox sell storage space, whereas Uptobox offered premium subscriptions with “18 features, only one of which relates to storage spaces. All the others aim to unblock access, downloading, and viewing of hosted files, for example to break the waiting time limit between two downloads or for viewing files.”

As for the comment about actioning takedowns in common with Google Drive and Dropbox, the studios highlighted a feature on Uptobox that restored files following receipt of a takedown notice. A test involving 68 infringing files revealed that half reappeared within two hours.

Some Users Are Pirates, Non-Infringing Files Get No Publicity

Chalanset conceded that pirates did use Uptobox, but these were just a tiny minority who wanted to accumulate enough ‘Premium’ points to pay for their five euro per month subscription. Uptobox also called on a pair of expert reports to counter claims from rights holders that 84% of the files on the platform were infringing. As per l’Informé (translated from French)

“[T]he Dubai company also produced two reports, one written by In Code We Trust, a consulting company, the other by Hubert Bitant, a legal expert at the Paris Court of Appeal. Their analysis shows that the vast majority of files hosted on Uptobox are not downloaded or viewed. In essence, 73.5% of the hosted files were not downloaded, while the rights holders estimate that 84% of the files are infringing.”

The statistical method used by the rights holders to identify pirated content stored on Uptobox also came in for criticism. Their approach reportedly involved visiting pirate sites that typically link to files hosted elsewhere, Uptobox included. However, by visiting pirate sites, most of the content on offer would obviously be infringing and shared in public; non-infringing content that isn’t shared in public, users’ personal files and photographs, for example, by their very nature simply wouldn’t appear on a pirate platform.

Whether the court found Uptobox’s appeal credible will be revealed when its decision is handed down in two months. It’s unclear if users will be able to retrieve any family photos at any point, but a stampede to discuss the matter in person before the court seems unlikely.

From: TF , for the latest news on copyright battles, piracy and more.

Anna’s Archive is a meta-search engine for shadow libraries that allows users to find pirated books and other related sources.

The site launched in the fall of 2022 , just days after Z-Library was targeted in a U.S. criminal crackdown, to ensure continued availability of ‘free’ books and articles to the broader public.

Late last year, Anna’s Archive expanded its offering by making information from OCLC’s proprietary WorldCat database available online. The site’s operators took more than a year to scrape several terabytes of data and published roughly 700 million unique records online, for free.

This ‘metadata’ heist was a massive breakthrough in the quest to archive as much published content as possible online. However, OCLC wasn’t pleased and responded with a lawsuit at an Ohio federal court, accusing the site and its operators of hacking and demanding damages.

The non-profit says that it spent more than a million dollars to respond to Anna’s Archive’s alleged hacking efforts. Even then, it couldn’t prevent the data from being released through a torrent.

“Defendants, through the Anna’s Archive domains, have made, and continue to make, all 2.2 TB of WorldCat® data available for public download through its torrents,” OCLC wrote in its complaint.

Who’s Anna?

Following the alleged hacking efforts, OCLC tried to identify the perpetrators. This investigation led them to Maria Dolores Anasztasia Matienzo, a resident of Seattle, Washington, who was listed as the only named defendant.

The complaint mentioned that Matienzo describes herself as an “archivist” and uses the handle “anarchivist” on social media. The defendant allegedly works as a software engineer at an AI startup and previously worked as a catalog librarian at a direct competitor of OCLC.

For OCLC, these and related findings were reason enough to sue Matienzo as part of the Anna’s Archive conspiracy. However, in a motion to dismiss filed yesterday, Matienzo denies any involvement with the shadow library or the hack.

“I am not affiliated in any way with Anna’s Archive and had no involvement in the alleged hacking and/or scraping of data from WorldCat.org that was allegedly orchestrated and carried out by Anna’s Archive,” Matienzo writes in an accompanying declaration.

Motion to Dismiss

The motion argues for the dismissal of the claims on several grounds. For one, it notes that the Ohio court has no jurisdiction over the defendant, who has never conducted business in the state.

Secondly, the complaint only sparsely mentions Matienzo. There are six paragraphs with individual allegations and two others where she is mentioned as part of the Anna’s Archive group. However, none of these include factual evidence, the defense argues.

“A review of these paragraphs reveals that the allegations contained therein are nothing more than conclusory statements that are unsupported by any factual evidence,” the motion to dismiss reads.

“[T]he conclusory and unsupported allegation that ‘Matienzo owns, operates, and/or controls Anna’s Archive,’ is not sufficient to state a claim against Ms. Matienzo.”

‘No Shred of Evidence’

In total, OCLC asserts twelve claims against Matienzo including breach of contract, unjust enrichment, and trespass of chattels. The defense notes that these all fail, as no claims are specifically linked to her with concrete evidence.

“OCLC does not allege that it traced any of the attacks to Ms. Matienzo, that OCLC discovered any shred of evidence demonstrating Ms. Matienzo’s alleged ties to Anna’s Archive, or that Ms. Matienzo herself committed any wrongful act against OCLC. This is because no such evidence exists.”

The defense adds that the similarity between defendant’s social media handle, ‘anarchivist’, and Anna’s Archive is insufficient to support the claims. The same applies to other facts, including her previous occupation as a catalog librarian.

Matienzo consistently denied any association with Anna’s Archive and informally cooperated with OCLC in an attempt to resolve the lawsuit before spending money on a defense. However, that didn’t lead to any agreement.

The defense therefore urges the Ohio federal court to dismiss all claims to prevent Matienzo from having to invest more time and money on the matter.

“If this case is not dismissed, Ms. Matienzo will be forced to litigate a case in which she should have never been named as a defendant in a venue thousands of miles across the country from her state of domicile,” the defense adds.

—

A copy of the full motion to dismiss, filed yesterday at the U.S. District Court for the Southern District of Ohio, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Private torrent trackers with Danish roots have long been the go-to place for file-sharers in Denmark. Not anymore.

Starting in the fall of 2020 , Danish law enforcement toppled several thriving torrent communities.

With help from local anti-piracy group Rights Alliance , DanishBits, NordicBits, ShareUniversity, Asgaard and others were systematically dismantled.

Sting Operation

When the first trackers fell, preparations for the operation had been ongoing for years. It all started when a former lawyer working for Rights Alliance went undercover at the private tracker DanishBits in 2016. As a quiet user, the infiltrator mapped the site’s internal relationships and identified key individuals in the wider Danish tracker ecosystem.

The details of this sting operation read like a film script but for many involved, it turned into a real-life drama. Not only were several trackers subsequently shut down, a number of community members were prosecuted too. More than two dozen people, from prolific uploaders to ringleaders, all had their day in court.

After the tracker dominoes fell, more than two dozen suspects were investigated and taken to court. This resulted in a wide range of sentences, with most of the tracker admins receiving conditional prison sentences of a few months. Some were ordered to carry out community service.

Conditional Prison Sentence

This week, the National Unit for Special Crimes ( NSK ) announced the final sentence related to the ‘Asgaard’ tracker. The Court in Horsens sentenced a 48-year-old man from East Jutland, who pleaded guilty to copyright infringement, to a suspended prison sentence of 60 days.

The defendant was the last of seven Asgaard tracker administrators to go before the court. The man helped to get the torrent site off the ground in 2019 and served as an admin of NordicBits before that; both offenses were accounted for in the conviction.

Asgaard became immensely popular in Denmark toward the end of 2020, after DanishBits and NordicBits shut down. The site had an estimated 1.5 million monthly visits at its height, making it the biggest pirate site in the country for a while.

Harsher Punishment Wanted

The guilty verdict is good news for Rights Alliance, but a bittersweet victory. While the crackdown effectively decimated the torrent tracker problem, the sentences handed down have been relatively ‘mild’. The tracker operator and many other “ringleaders” don’t have to serve time in prison, as the sentences are conditional.

Rights Alliance Director Maria Fredenslund notes that copyright and IP-related crimes are historically not viewed as severe crimes in Denmark, adding that a tougher sentence would be more effective.

“Sentences for IP crime are in general too low in Denmark, to have a sufficient deterrent effect. We believe the sentences in many cases should have been much harder,” Fredenslund informs TF.

“The reality is that IP crime has not been seen as a severe crime in Denmark historically, so we are starting from a low point and building from there to obtain adequate sentencing that will keep others from committing similar crimes.”

NSK prosecutor Hans Bohn Sørensen is content with the verdict, however, which marks the end of the Asgaard prosecution.

“I am satisfied with the verdict, which now ends the proceedings against the founders and administrators behind one of the largest illegal file sharing services we have had in Denmark,” Sørensen says.

Threat Neutralized?

The recent sentence and those that were handed down earlier are not the harshest on a global scale and unlikely to spook hardened criminals. However, deterrence is not solely determined by the harshness of a punishment .

Another factor that plays a key role is the likelihood of getting caught. With a multi-year crackdown on several trackers, Danish police and NSK have shown that this risk is, perhaps, higher than ever.

Commenting on this aspect, Fredenslund praises the authorities’ invaluable efforts, which helped to ensure that Danish file-sharing services no longer pose a significant threat to Danish rights holders.

Of course, new trackers will always emerge but Rights Alliance sees these as marginal problems in the grander scheme.

“The current trackers only harbor the very hardcore illegal users in Denmark. They don’t pose a threat that’s comparable to Asgaard, ShareUniversity, DanishBits, etc.,” Fredenslund notes.

With the final conviction of the last Asgaard admin, all cases related to the tracker are closed. Cases against other trackers are still pending, however. In the meantime, Rights Alliance maintains its focus on emerging threats, including those related to Artificial Intelligence.

From: TF , for the latest news on copyright battles, piracy and more.

The Internet Archive (IA) is a non-profit organization that aims to preserve digital history for generations to come.

The digital library is a staunch supporter of a free and open Internet and began meticulously archiving the web over a quarter century ago.

In addition to archiving the web, IA also operates a library that offers a broad collection of digital media, including books. Staying true to the centuries-old library concept, IA patrons can also borrow books that are scanned and digitized in-house.

Publishers vs. Internet Archive

The self-scanning service offered by the Internet Archive (IA) differs from the licensing agreements entered into by other libraries. Not all publishers are happy with IA’s approach, resulting in a major legal battle two years ago.

Publishers Hachette, HarperCollins, John Wiley, and Penguin Random House filed a lawsuit, equating IA’s controlled digital lending (CDL) operation to copyright infringement. Earlier this year a New York federal court concluded that the library is indeed liable for copyright infringement .

The court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit. However, IA is not letting this go without a fight and in December the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

High Profile Support

The importance of this legal battle is illustrated by the large number of amicus briefs that are filed by third parties. Previously, IA received support from copyright scholars and the Authors Alliance, among others.

A few days ago, another round of amicus came in at the Court of Appeals, this time to back the publishers who filed their reply last week . In more than a handful of filings, prominent individuals and organizations urge the Appeals Court not to reverse the district court ruling, arguing that this would severely hamper the interests of copyright holders.

The briefs include positions from industry groups such as the MPA, RIAA, IFPI, Copyright Alliance, the Authors Guild, various writers unions, and many others. Legal scholars, professors, and former government officials, also chimed in.

RIAA, MPA, et al.

The RIAA and MPA submitted an amicus brief together with the NMPA and the News Media Alliance. These industry groups draw a parallel between the impact Napster and BitTorrent had on music and movie sales, and the threat IA’s self-scanning library poses today.

“Digital piracy has inflicted a huge economic toll on those industries and, by extension, on their ability to invest in new creative works and the artists who make them. Internet Archive’s theory of fair use represents a threat just as grave.”

Industry groups fear that if the Internet Archive is allowed to digitize and lend books, it could set a precedent for other forms of media. For instance, if services were able to lend music, movies, or news media to the general public, these industries might face similar challenges.

“Deeming Internet Archive’s mass reproduction and distribution program to be fair use would no doubt embolden not only Internet Archive itself but also other online platforms to freely ‘lend’ all types of copyrighted works to the public in digital formats,” they write.

“That would catastrophically harm the digital markets on which the music industry, the movie and television industry, the news industry, and similar industries depend to profitably create and distribute their works—and would thereby undermine the incentive for the creation of new works that copyright law exists to protect.”

According to the amici, there is nothing fair about IA’s digital library; instead, they see it as “unambiguous copyright infringement.”

Copyright Experts, Professors, and Lawmakers

A second amicus brief is submitted by more than a dozen professors and scholars of copyright and intellectual property law. They stress that IA’s practice should not be seen as “transformative” fair use, arguing that the library offers a “substitution” for books that are legally offered by the publishers.

This sets the case apart from current legal precedents including the Google Books case , where Google’s mass use of copyrighted books was deemed fair use.

“IA’s exploitation of copyrighted books is thus the polar opposite of the copying that was found to be transformative in Google Books and HathiTrust . IA offers no ‘utility-expanding’ searchable database to its subscribers. What it does offer is access to full-text books as a clearly competing substitute for the versions licensed by book publishers,” the legal scholars write.

Another amicus brief adds more heavyweight support for the publishers. This includes former judges and two dozen government officials and lawmakers, including Lamar Smith, former Chair of the House Judiciary Committee, and Bob Goodlatte, former Chair of the House Judiciary Committee.

This brief also rejects the Internet Archive’s fair use arguments, framing the library as a threat instead.

“IA does not further the public interest, but rather undermines incentives to create and disseminate books that benefit society. Thus, its actions are decidedly not protected by fair use,” their brief reads.

IA and AI

The final amicus brief we want to highlight comes from a broad collection international and regional trade groups from outside the United States. These include the International Publishers Association, the International Video Federation, and the Association of Canadian Publishers.

These groups also reject the fair use arguments. They stress that in addition to directly competing with the interests of publishers, IA’s library is also an indirect ‘artificial intelligence’ threat as the digitized books can be used as AI training material.

“The Internet Archive is an obvious source of high-quality works for AI training since these works have been professionally edited and improved by publishers. Entering the terms ‘Internet Archive DRM’ into any search engine results in a number of links to software tools that remove the Internet Archive’s DRM technology along with instructions on how to use it.

“Even if AI training is ultimately determined by U.S. courts to not be a fair use, Amici fear that the Internet Archive’s CDL collection has already been used as an AI training tool,” the international trade groups add.

In summary, the book publishers have plenty of external support for their legal battle. However, it remains to be seen whether any of these amici, including those in favor of IA, will influence the eventual outcome of the appeal.

—

Below is an overview of the amicus briefs that were filed over the past few days, all in support of the publishers.

– RIAA, MPA, NMPA, News Media Alliance .
– Former government officials, former judges, and intellectual property scholars .
– Copyright Alliance .
– Various organizations that represent the interests of writers and other creators .
– Professors and scholars of copyright and intellectual property law .
– International and regional trade bodies .

From: TF , for the latest news on copyright battles, piracy and more.

In 2020, publishers Hachette, HarperCollins, John Wiley and Penguin Random House sued the Internet Archive (IA) for copyright infringement, equating its ‘Open Library’ to a pirate site.

IA’s library operates as a non-profit organization that scans physical books, which can then be loaned out in an ebook format. Patrons can also borrow books that are scanned and digitized in-house, with technical restrictions that prevent copying.

Staying true to the centuries-old library concept, only one patron at a time can rent a digital copy of a physical book. These restrictions were temporarily loosened at the height of the COVID-19 epidemic when IA launched the National Emergency Library.

Publishers vs. Internet Archive

The self-scanning approach differs from the licensing deals other libraries enter into. Not all publishers are happy with IA’s service which triggered a massive legal battle four years ago.

Publishers Hachette, HarperCollins, John Wiley, and Penguin Random House filed a lawsuit, equating IA’s controlled digital lending (CDL) program to a piracy operation. Last year, a New York Federal court concluded that the library is indeed liable for copyright infringement .

The Court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit, but IA isn’t prepared to let go without a fight. Last December, the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

Publishers Respond to IA’s Appeal

IA argued that its scanning-and-lending activities amount to fair use. They cited expert witnesses who concluded that there’s no financial harm and further argued that the service is substantially different from the ebook licensing market.

Late last week, the publishers filed a redacted copy of their reply brief at the Second Circuit Court of Appeals. According to the companies, IA engaged in “massscale infringement” by making digital copies of physical books without permission from the works’ rightful owners.

The IA-digitized books are then lent to patrons instead of officially-licensed ebooks, which the publishers see as a direct threat to their rights and business.

“Controlled digital lending is a frontal assault on the foundational copyright principle that rightsholders exclusively control the terms of sale for every different format of their work – a principle that has spawned the broad diversity in formats of books, movies, television and music that consumers enjoy today,” the publishers write.

The publishers state that more than 93% of the public libraries in the US license ebooks through official channels. IA refuses to do so, arguing that making their own digital copies of legitimately purchased books amounts to fair use.

Not a VCR

IA views these digital copies as “transformative” and argues that its scan-and-digitize practice is fair use. In the appeal brief, the library equated it to the digital copies of video broadcasts, which people can legally make following the Betamax decision .

The publishers, however, maintain that IA’s lending operation is an effort to bypass official licensing channels, arguing that it has little to do with how people could use a VCR for private use.

“IA reaches far afield and twists Sony beyond recognition in an effort to manufacture some support. But Sony only held that it was fair use for users of Betamax machines to ‘time-shift’ free television programs ‘for private home use’.

“This bears no resemblance to IA’s massive book digitization project systematically distributing bootleg ebooks to the worldwide general public,” the publishers add.

The book publishers believe that IA is headed into uncharted waters, where no other library has ever gone. While IA sees its lending program as a logical and widely accepted step, the rightsholders frame it as a novel digital threat.

“Public libraries […] have never engaged in mass-digitization of millions of commercially available print books and distributed the resulting ebooks to anyone with an internet connection; they have never systematically evaded publishers’ terms of sale for specific formats like ebooks; they have never partnered with a used bookstore to funnel books to offshore scanning facilities..,” the publishers write.

All About Control

IA and several supporters , including the Authors Alliance and various copyright scholars, previously argued that publishers currently have too much power and control.

Allowing libraries to scan and digitize their books would certainly limit this control, but the publishers believe that’s clearly against the law.

“In short, IA’s practice of CDL is radical and unlawful. A decision deeming CDL fair use would have a dire impact on book publishing and all creative industries. Libraries around the country could skirt the current library ebook markets, fundamentally interfering with the Publishers’ digital strategies and destabilizing book markets,” they write.

A Napster Moment?

The publishers fear a ‘Napster moment’ for books if outsiders can run their own digitization programs and operate distribution platforms, without the involvement of rightsholders. Napster has shown that this is a viable threat and recent legal discussions surrounding the use of copyrighted works for AI training make this a very relevant issue today.

“Indeed, as technology companies ‘train’ generative AI products on vast numbers of books and other media, maintaining legal protection for derivative uses has never been more important,” the publishers note.

“The long-range disruptions in the music industry caused by Napster and other file sharers are a cautionary tale on the dangers of illicit copying that deprives rightsholders of the ability to control their markets.”

Interestingly, Napster’s existence arguably provoked the foundation of a new music industry model. It proved to be a large inspiration for innovators including Spotify’s Daniel Ek , who pioneered the music streaming business that generates most of the industry’s revenue today.

The publishers don’t elaborate on the broader implications of Napster, but they likely refer to the drastic decline in music sales that took place shortly after the service gained popularity.

The publishers ask the court to affirm the lower court’s decision, which currently prevents IA from lending out digitized copies of its books. The request is backed by a series of detailed legal arguments and citations in the full brief, which can be accessed here (pdf) .

From: TF , for the latest news on copyright battles, piracy and more.

Starting last year, various rightsholders have filed lawsuits against companies that develop AI models.

The list of complainants includes record labels, book authors, visual artists, even the New York Times. These rightsholders all object to the presumed use of their work without proper compensation.

“Books3”

Many of the lawsuits filed by book authors come with a clear piracy angle. The cases allege that tech companies, including Meta, Microsoft, and OpenAI, used the controversial ‘Books3’ dataset to train their models.

Books3 was created by AI researcher Shawn Presser in 2020, who scraped the library of ‘pirate’ site Bibliotik. The dataset was broadly shared online and added to other databases including ‘The Pile‘, an AI training dataset compiled by EleutherAI.

After pushback from rightsholders and anti-piracy outfits, Books3 was taken offline over copyright concerns. However, for many of the companies that allegedly trained their AI models on it, there are still some legal repercussions to sort out.

Authors Sue NVIDIA for Copyright Infringement

On Friday, American authors Abdi Nazemian , Brian Keene , and Stewart O’Nan joined the barrage of legal action with a copyright infringement lawsuit against NVIDIA. The company, whose market cap exceeds $2 trillion, is mostly known for its GPUs and related software and services, but also has its own AI models.

In a concise class action complaint, filed at a California federal court, the authors allege that NVIDIA used the Books3 dataset to train its NeMo Megatron language models. The models are hosted on Hugging Face where it states that they are trained on EleutherAI’s ‘The Pile’ dataset, which includes the pirated books.

Putting two and two together, the plaintiffs conclude that NVIDIA’s models were trained on pirated books, including theirs, without their permission.

“NVIDIA has admitted training its NeMo Megatron models on a copy of The Pile dataset. Therefore, NVIDIA necessarily also trained its NeMo Megatron models on a copy of Books3, because Books3 is part of The Pile,” the complaint reads.

“Certain books written by Plaintiffs are part of Books3 — including the Infringed Works — and thus NVIDIA necessarily trained its NeMo Megatron models on one or more copies of the Infringed Works, thereby directly infringing the copyrights of the Plaintiffs.”

Direct Infringement Damages

Relying on the same logic, the authors accuse the company of direct copyright infringement, noting that NVIDIA copied their books to use them for AI training purposes. Through the lawsuit, the rightsholders demand compensation in the form of actual or statutory damages.

The class action lawsuit includes three authors thus far, but more may be added to the case as it progresses. NVIDIA has yet to respond to the allegations but in light of similar cases, it will likely oppose the claims and/or argue a fair-use defense.

Last month, OpenAI managed to ‘defeat’ several copyright infringement claims from book authors in a somewhat related “Books3” lawsuit. However, the California federal court didn’t review the direct copyright infringement claims in this case, which have yet to be argued in detail at a later stage.

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A copy of the class action complaint against NVIDIA, filed by the authors in a California federal court, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Available on Windows, Linux, and since 2023, Android, Yuzu claims to be the most popular open-source Switch emulator in the world.

That’s probably why Nintendo targeted Yuzu in a major copyright complaint filed last Monday in the United States. According to the Japanese gaming giant, Nintendo games are designed for Nintendo hardware and being the most popular Switch emulator in the world isn’t an accolade, it’s a statement of global piracy and always has been.

In many respects the 41-page complaint is meticulous as it details Nintendo’s long-held position on emulation. Cracking Nintendo’s console security violates the company’s rights under the DMCA’s anti-circumvention provisions. Bypassing or otherwise evading Nintendo security, deployed to protect its videogame content from piracy, fares no better.

Everything is Illegal, Period

From this base position, Nintendo believes everything built upon those initial violations simply amounts to further breaches of its intellectual property rights. The complaint alleges that the U.S. company behind Yuzu, Tropic Haze LLC, set out to facilitate Switch videogame piracy from the start.

Lead developer Bunnei and other coders hired by the company built and maintained Yuzu; they also encouraged Yuzu users to obtain their own encryption keys, fully aware they could only be obtained from Switch consoles, in violation of the DMCA.

The keys themselves are useful only when paired with Nintendo games. Indeed, the games cannot be played without them, while the games themselves can only be obtained after first violating the DMCA and then by copying, contrary to the Copyright Act, Nintendo explained.

Meticulous Technical Lawsuit, Surprisingly Thin On Basics

As previously reported , Nintendo’s complaint states that every infringing act, carried out by any ‘agent’ of Tropic Haze LLC, rendered the company liable for their conduct. Most notably, that includes the conduct of Yuzu lead developer Bunnei, without whom there would be no Yuzu.

Indeed, the complaint clearly states the importance of Bunnei, before zooming out to reveal a Switch piracy feeding frenzy on a global scale. All of this was made possible, Nintendo said, due to Yuzu’s built-in ability to pair extracted keys with pirated games. The rest of the critical development work, all of it led by Bunnei, was reportedly carried out to their specification.

Use of the possessive pronoun ‘their’ is hardly unusual but, when a lawsuit of this gravity paints a picture of a global piracy facilitator and then refers to them exclusively by their online handle, that’s somewhat unusual.

If Nintendo had drawn a blank on a real identity, that might offer an explanation. But with no Doe defendants even alluded to and not a single human mentioned by real name in the entire complaint, that raises the most important questions of them all: Who signs the check for damages when Nintendo wins, do they actually have the money, and why aren’t they here now?

Having noticed this anomaly in the complaint, we expected to have a little time to put the pieces together. Yet it appears that time has all but run out. After months or possibly years preparing for the big emulator showdown, Nintendo filed suit on February 26 and seven days later (which includes a weekend) a joint proposal was filed before the court on Monday, just a signature away from conclusion.

Joint Motion For Entry of Final Judgment and Default

Rather than put up a fight, Tropic Haze LLC’s pledge to Nintendo is to lose the case, so that Nintendo gets the big win it had hoped for, minus the inconvenience of litigation.

To ensure Nintendo isn’t troubled on the financial front, Tropic Haze LLC has consented to final judgment in favor of Nintendo and monetary relief to the tune of $2.4 million.

“Defendant and its members irrevocably and fully waive notice and service of the Final Judgment and Permanent Injunction, once issued by this Court, and understand and agree that violation of the Final Judgment and Permanent Injunction will expose the Defendant and its members to all penalties provided by law, including for contempt of Court,” the motion continues.

“Defendant and its members irrevocably and fully waive any and all right to appeal the Final Judgment and Permanent Injunction, to have it vacated or set aside, or otherwise to attack in any way, directly or collaterally, its validity or enforceability.”

“Findings of Fact”

The judgment and injunction proposed by Nintendo and Tropic Haze begin with a statement indicating that the Court will make certain ‘findings of fact’ in respect of the dispute and the details supporting its conclusion. In the event Nintendo finds another Yuzu in need of suppression, these established ‘facts’ would hold significant value.

They are summarized here but the heart of the ‘facts’ remain.

– The Nintendo Switch and Nintendo Switch video games contain technological measures that effectively control access to copyrighted works and protect rights of copyright owners, including Nintendo. Nintendo owns valid copyrights in works protected by the Technological Measures, including its video games and the Nintendo Switch operating system.

– Yuzu, a video game emulator, circumvents the Technological Measures and allows for the play of encrypted Nintendo Switch games on devices other than a Nintendo Switch. For example, Yuzu executes code that decrypts Nintendo Switch video games (including component files) immediately before and during runtime using unauthorized copies of Nintendo Switch cryptographic keys.

– Yuzu is primarily designed to circumvent and play Nintendo Switch games. In the ordinary course of its operation with those games, Yuzu requires the Nintendo Switch’s proprietary cryptographic keys to gain access to and play Nintendo Switch games.

– Developing or distributing software, including Yuzu, that in its ordinary course functions only when cryptographic keys are integrated without authorization, violates the Digital Millennium Copyright Act’s prohibition on trafficking in devices that circumvent effective technological measures, because the software is primarily designed for the purpose of circumventing technological measures. Id. § 1201(a)(2)(A) .

Permanent Injunction

The permanent injunction to which Tropic Haze has consented leaves zero room for maneuver. It restrains the company and all acting in concert or under its control from advertising, selling, distributing, cloning or even testing Yuzu, or any of its source or features. The same applies to any other software or device that circumvents Nintendo’s technical protection measures, including through the use of Nintendo’s cryptographic keys to decrypt files.

If passed as written, the injunction would restrain direct or indirect infringement of Nintendo’s intellectual property rights, including by enabling, facilitating or encouraging others to do so. Attempting to circumvent the measures laid out in the injunction through assignments or transfers, or the formation of new entities, is also ruled out.

The scope of the following section remains to be seen, but even if taken at face value, the aim is clear. Any emulator substantially similar to Yuzu should be considered immediately more vulnerable than previously understood.

And once there’s no familiar place left for the community around Yuzu to gather, the purging of the tools can begin, wherever that’s possible.

The proposed final judgment and permanent injunction have not yet been signed off by the judge but since the parties are in agreement on the details, that’s probably just a question of time. Meanwhile, a statement has appeared on yuzu-emu.org.

The documents referenced above are available here and here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.