Take a Step

The upsetting thing about the Internet Archive situation is that they decided to bet everything - their credibility, the crucial work of preservation they've done on the net, the accessibility of materials that otherwise be legitimate lost media - on a truly idiotic proposition for the sake of either "changing bad law" or martyring themselves to it.

And now they're getting martyred for it.

And it's their own goddamn fault.

And we're still going to pay for it, as a society, either paying for their dumbfuck legal pirouette, with the loss of all the material that they claimed to be custodians of but instead endangered recklessly, or realistically, both.

It's fucking maddening.

I'm reblogging this from myself because I realized that, actually, I have Opinions and I want to express them. I'm an academic librarian, for context.

I saw the 2020 Internet Archive post about their "Emergency Library" and my immediate response was, "But isn't that a huge violation of copyright? I hope they know what they're doing." Spoiler alert: I do not think they knew what they were doing. I think they fucked around and are now finding out.

The thing which makes me the most mad about this (up to and including the potential loss of everything in their archive) is the fact that this whole court case--this court case which is really and truly the Internet Archive's fault, not an overreach on the publishers' side--has made it so, so much harder to ever even potentially get legal sanction for actual controlled digital lending.

What the Internet Archive was doing Was. Not. Controlled Digital Lending (CDL). Actual CDL is when a library takes a book out of circulation, scans it, and then makes the scan available to one person at a time while the physical copy remains non-circulating. One copy of each book to one patron at one time--that's why it's called "controlled".

CDL is most often done for materials which don't have an ebook version.* For instance, the library I worked at in 2020 used CDL to make certain course reserve textbooks available to students remotely.

Librarians are and were aware that while they consider this a Fair Use exception to copyright, CDL occupies a legal gray area.** The case for fair use rests on the arguments that such use is not (or is very minimally) impeding the market because 1) the library is not loaning out more copies than they have already paid for (just doing it in a different medium) and 2) in most cases, there is no competing product from the publisher (the libraries aren't using CDL to replace available ebooks and therefore aren't causing market harm to the publisher). This use is also argued to be parallel to making digital copies of print books to allow visually impaired readers to access them,*** which is a legally established fair use case.

So libraries (some libraries) were cautiously forging ahead with CDL, hoping that if it was ever challenged, it would be found to be fair use, and that maybe it would make the digital lending/ebook landscape just a little bit less broken, and in the meantime knowing that we were making materials more accessible to our patrons.

And then along comes the Internet Archive with their "Emergency Library" where they just make every scanned book they have available to use with no restrictions. No limits to one user per physical book at a time. No considerations based on whether or not a publisher's ebook version is available. And they called that "Controlled Digital Lending".

And in doing so they have potentially harmed actual controlled digital lending for all libraries in the US.

Now every publisher who hears "controlled digital lending" is going to think of the Internet Archive's abuse of the term. Now there's legal precedent that a thing called "controlled digital lending" is a violation of copyright (even though the substance of what's meant is different). Now CDL is forever associated with actual, clear copyright violation.

And that makes me mad because this was all so preventable and is due entirely to the Internet Archive's choices.

*Partly for copyright reasons, but also because scanning a book is actually a lot of work, so buying an ebook is a lot easier. And even with how much libraries get charged for ebooks (if you weren't aware, it's often at least 3 times as much as the retail version, and we don't always even get to keep the license in perpetuity), scanning is so much work it can be more cost-effective to buy a publisher's ebook even leaving aside copyright issues.

**Almost all fair use is technically a legal gray area. Fair use is a defense against copyright infringement (that is, it is essentially permitted infringement), so any fair use case that hasn't been litigated is a sort of Schrodinger's fair use. We (general) act on the considered belief that the use is legally fair, but until and unless it's hashed out in court, no one can know for sure whether a certain use would be considered fair or illegal infringement.

***They're both forms of digitizing owned physical materials to provide access in an alternate format.

I stand with the Internet Archive. Yes they’re breaking the law, but the law sucks and worth taking a large risk for taking a stand.

Technology should be used to make the world a better place. Price gorging for licenses to share digital assets, and adding artificial limitations for an infinitely shareable resource though either public libraries or a non profit service is such bullshit.

None of what you're saying is wrong.

I want to emphasize that. I agree with all the points you're making.

However, bad copyright law is not changed by purposefully breaking said bad copyright law and then offering an insustantial legal defense to it that boils down to: yeah, but the law sucks tho!

That's what the IA did.

The IA fucked over authors and libraries everywhere by poisoning the well of an actual fair use scenario, by calling blatant piracy by the same name. This has created legal precedent that attacks that fair use scenario because it has been defined as blatant piracy.

Look, I think piracy is mostly ethical under the capitalist hell scape we live in.

But the IA is not the folk hero they're pretending to be. They made a shortsighted, stupid decision that contradicts their stated purpose and endangered their core function.

They fucked up and all the lip service in the world won't change the fact that what they did was look at a clearcut law and said: but what if I don't want to?

There are actual, badass ways to challenge copyright law or to enshrine fair use scenarios. Do you know who is at the forefront of that?

Actual libraries.

You know, the ones the IA refused to work with and recklessly endangered over a stupid PR stun.

As someone who thinks the IA is deeply important and their mission crucial for the future of a free internet? Fuck the IA and everyone who looked at "let's just become a piracy site and see what happens!" This is what happens! You get sued out of existence! Just like all other piracy sites that aren't smart enough to hide!

Piracy is not risk free!

Did you know their stupidity almost got the entire organization reclassified as a commercial venture? Because that's what piracy websites are. The only good thing that came from the latest failed appeal is that at least the judge agreed they're not a for profit.

That's how stupid they've been! They risked everything and nearly lost everything, pursuing an avenue that would never yield the change they say they wanted.

That's the other thing I have to emphasize. The kind of better copyright law they insist they are trying to being about? That's not possible through the judicial system. That's the kind of thing that takes lobbying the legislative on a local level all the way up to federal, one bloody step at the time! Again, look at libraries! Look at the work they have been trying to do, to fight against misinformation, censorship and copyright overreaching.

Libraries have been doing all the heavy lifting, and then the IA fucked up and nearly fucked them over in the process too.

Is the IA important? Yes! I hope they survive this. But this is their fault. They're not hapless victims of the evil corporations.

They fucked around and now they're finding out.

@cardigarden what’s your take?

Oh man, I have so many thoughts that I actually came off mobile to type this all out on my laptop.

For those of you who don't know me, I recently had to leave my job for childcare reasons, but for the last 6 years I've been an academic librarian doing CDL on a large programmatic level with stuff on IA (no I won't say where).

I had the exact same reaction OP did when IA launched the National Emergency Library, and I knew this final judgement was coming as soon as the district court ruled in March 2023. In fact I remember telling my staff the next day "they officially girlbossed too close to the sun, but don't worry, I've been working on things to make sure none of you lose your jobs." Yep. That was a real conversation IA's choices made me have with my staff.

OP goes into fantastic detail about what CDL is, so I won't do more of that, but if anyone wants further reading, this white paper from 2018 is a great resource.

My firm belief on all of this is that things would have been very different if we had one of two different alternate realities.

Alternate Reality 1: Brewster Kahle had a little less "rich white guy with a savior complex" and a little more realism in his personality. Brewster founded IA and this is how he thinks he's gonna save the world. Look. I'm a librarian and I believe access to information is a human right. HOWEVER. I'm not about to use a global pandemic to break my own rules that to date had kept publishers from suing me. My guess is that he didn't care and actually welcomed the lawsuit because he thought he would win because he was on the side of righteousness. Given how IA's lawyer argued the case, this seems pretty plausible.

Alternate Reality 2: IA existed as brick-and-mortar or some other brick-and-mortar library was the defendant. The district court judge could not wrap his head around the idea that IA counted as a library because it didn't have a building you could go to to check out books. He also had a huge problem with the fact that their "defined userbase" was The World. An academic library's userbase is limited to students and faculty and maybe the local community if they're either a state school or feeling generous. Your local library's userbase is limited either to your town or your county depending on how the library system is set up. In other words, there are limits. The judge Did Not Like that IA was for everyone on the planet. I genuinely believe that a library with a closed ecosystem that focused entirely on books that didn't have e-versions would have survived this.

Now, when I got hired, my manager at the time sat me down and said that the ultimate goal of the institutions doing CDL was to bait a lawsuit because of the legal gray area borne of the fact copyright law has not kept pace with technology, and they asked if I was okay with that. I was (and still am) because I both like being on the cutting edge of things and feel that the legal theory has merit. During my time on the job, the only books we did were titles that were either out of print, or old enough that they had been superseded by enough new editions that they could be considered "a history of [topic]" rather than current knowledge. None of these books have or will ever have an ebook version.

Which brings me back to the National Emergency Library. Not only did IA remove lending limits to books currently in print, they did it for books that had a publisher-available e-version. How could you be so stupid, I shouted daily into the void since then. Did you think the lawyers a non-profit can afford can punch in the same weight class as the in-house counsel for Harper?? The fourth of four legal tests to support a claim of fair use is "does the use cause market harm".

IA's defense boiled down to "let's not talk about the NEL, that was an aberration of the concept put in place only because of covid lockdowns and let's assess CDL on its own". This opened the door for the publishers to argue that IA has already broken the rules once and can't be trusted not to do it again. The publishers also successfully argued that the Works In Suit did not pass the transformativeness fair use test.

(IA argued that the increased efficiency made the use transformative not derivative, which.... is weak sauce honestly.)

Basically yeah. IA fucked around and now we're all finding out. What happens next depends entirely on how bad the damages are. While the Wayback Machine had no part or relevance to this suit, the monetary damages could be bad enough that they can't afford to keep it running. AND, IA is basically facing the same lawsuit over music. They either need a way better lawyer for that suit or just give up.

Brewster, buddy, you gotta let the idealism go and be a bit more pragmatic jfc

just realised the most important one didn't attach to the last post

I regret to inform you that Discord's new Terms of Service includes an arbitration clause. You can find it here https://discord.com/terms/#16. This clause includes an opt-out, which I have transcribed here:

You can decline this agreement to arbitrate by emailing an opt-out notice to [email protected] within 30 days of April 15, 2024 or when you first register your Discord account, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Discord also will not be bound by them.

These clauses are underhanded ways that corporations seek to deprive you of your right to participate in class-action lawsuits and your right to a jury trial. (This does only apply to us users ,other people still spread the word though )

#whats arbitration someone help me

Bad news, @noodelzmop. Arbitration basically means that if you want to sue Discord for whatever reason, the dispute needs to be handled in house. Specifically, in their house. If you don't get this email out, you're basically signing away your right to legal recourse if they do criminally shitty stuff to you, like with the McDonalds app.

I have been told that emailing "I am confirming that as of the date of this email, I am choosing to opt out of binding arbitration to settle disputes with Discord." With the Email you used for your discord account is enough for the notice but take this with a grain of salt as this was not said by a lawyer

[Image description: a tag that reads “my only question sis what should an opt-out notice say”. End description.]

@a-captions-blog

Surprise evidence isn't actually a thing that's allowed in American courts. Both sides are given the opportunity to know of, and verify, evidence.

This also gives both sides a chance to prepare arguments, speak to relevant parties, prepare expert testimony, etc.

Someone having the perfect evidence in their coat pocket is a contradiction, because that's not been accepted as evidence yet. There is a process. The other side must be made aware of it, and given a chance to consider its validity.

Being so far as in the courtroom, and trying to present something unknown on the spot, is essentially withholding evidence. It's not something you're supposed to do outside of taking dramatic liberties in fiction.

That evidence can probably still be presented, but not on the spot. There is a process.

If criticizing courtroom procedure, people shouldn't rely on what they've seen in fiction. It is inaccurate 99% of the time. They should learn about actual courtroom procedure.

It can even be fun! Did you know if a lawyer walks in the wrong place, a bailiff can tackle them?

It can happen tho, if ur defense lawyer is so bad he simply misses to check the new evidence. Didn't that happen with Alex Jones? Prosecution got to slap down a thick folder of evidence because Alex lawyer didn't do anything about it, and Alex got jumped.

Assuming we're talking about the same thing, and I have my facts right, Jones was an example of "discovery" being upheld.

He withheld things during discovery to the point that he effectively forfeited the case, but there was still the matter of determining how much he owed people.

During the process of determining that, Jones's lawyer sent EVERYTHING on Jones's cell phone to the opposition by mistake, and when given an opportunity to correct that mistake, didn't, making it all fair game.

It went through the process, but Jones was definitely surprised by this, so you're correct. Given enough incompetence, surprise evidence can effectively happen.

ty for stealing this one much appreciated

people in the notes suggesting it was "improper" for the juror to do this or that it "introduced bias" to the court proceeding 🙄 the ice agent in question accused a moc of assaulting him / resisting arrest. how is the agent being a white supremacist not relevant. what universe are you living in

As a member of the world’s SECOND oldest profession, I assure you this is just one of many ways the justice system is systematically fucked up.

For anyone who wants to know how to fact check something you are told while on jury duty without getting fined:

First, you need to understand that the rule that jurors can’t just google things is coming from a good place. Like imagine that you are on a jury that’s considering, say, a medical malpractice lawsuit and one of your fellow jurors comes into the jury room and says to you, “I think the victim’s expert was lying because WebMD totally contradicts everything they said.”

And you might be like, “But WebMD is notoriously unreliable website and the expert you’re talking about is a researcher from Mayo Clinic.” But this person cannot be swayed.

Like, we can all agree that would be bad.

So even though these rules can contribute to unjust outcomes as in the case above (and seriously, the fact that the defense attorney didn’t fact check that is probably grounds for legal malpractice), they also prevent jurors from just looking up bullshit online and taking it more seriously than the actual experts the court has put on. And I think in the era of anti-vaxxers/QAnon/COVID denial/etc., we can all understand why it’s a bad idea to trust that people can tell fact from bullshit online.

So in light of this, how do you as a juror fact check something?

The key here is that you have to ask the court for information. Jurors can ask questions of the court during deliberations, so if something you said sounds off to you, you can ask for more information.

The key term you want to use here is “credibility.”

The job of a jury is to decide what are called “questions of fact.” Long before the trial even starts, lawyers will have hashed out all the “questions of law” --- like, what the statute of limitations is; what laws, exactly, were allegedly broken; whether the court you’re in even has jurisdiction; stuff like that. Jurors are responsible for deciding which side’s version of the facts has more credibility.

For instance, if the prosecution’s witness says X and the defense’s witness says Y, the jury is responsible for deciding which is true, X or Y. And you do this by weighing which one is more credible.

So in this case, if the juror had known to, he could have told the judge, “In order to properly assess the ICE agent’s credibility, I need more information about his tattoo. I have doubts about whether he was telling the truth about it, which would impact how credible I would find his testimony. Can the agent please provide evidence that it really is what he says it is?”

There are a lot of problems with our legal system, and I think one of the biggest is that jurors aren’t educated about what they can and can’t do. Juries have a lot of power, if (and only if) they know how to use it.

Reblogging for that last post, because frankly, “what to do as a juror” is one of those things the schools should really be teaching us. Serving on a jury is one of the most powerful rights of citizenship and everyone should be educated in how to exercise it correctly.

Time Sensitive- Apply before August 25th, 2023 (8/25/23)!

Filing a claim takes less than ten minutes, and can be done HERE

Excerpt from article:

Please reblog to signal boost this! As many people as possible should know about this to make their claim, if you don't do anything you don't get anything. It takes less than ten minutes to file and pick your payment option including pay/pal and ven/mo .

Just to help people decide whether it's worth it: The lawyers may keep up to 25%, making it $543.7 million. There are a little over 240 million US Facebook users. If all of those users make a claim, you're going to get like $2 and possibly give up your rights to sue in some circumstances (you need to formally opt out to retain right to sue over the same issue, though).

Now, not nearly everyone is going to make a claim, but I'm sure the lawyers will be actively seeking people out, so there's going to be a significant number.

Not an expert but from personal experience this is true. Firms will also try to build a case representing multiple clients as well, which can strengthen their case and give a bigger pay out. If they win.

If your company is stealing wages from you there is a good chances their stealing from others. Talk to your coworkers about your wages (but be smart about it).

You absolutely have the power to sue their asses if you need to. You might need to take the time to do your research and talk to multiple lawyers first but don’t let the fear of lawyer fees be the Only thing that stops you.

What good is the concept of justice when most people use the word as functionally synonymous with "vengeance"?

How do we divorce justice from punishment? What does that even look like?

I just wonder if maybe healing, safety, fairness, and compassion are more useful goals than justice.

There's this pervasive idea of justice as inherently penal and vindictive. How do we dig ourselves out of this hole?

We gotta stop hurting each other.

op may already be aware of these, but other people might not be.

https://transformharm.org/ - collection of writing about all kinds of restorative, transformative, and healing justice work and theory

https://rjdtoolkit.impactjustice.org/ - a toolkit for putting RJ/TJ into practice in your community

https://healingjusticeproject.org/ - more about healing justice, focusing especially on people who have been or are incarcerated or impacted by the “criminal justice system”

http://www.brattleborocjc.org/blog/indigenous-roots-of-restorative-justice - restorative justice has been an indigenous practice for millennia. you can start to learn more about some of them here, but please don’t be afraid to read more!

https://www.beam.community/healing-justice - RJ/TJ/HJ is also a powerful tool in Black justice movements; you can read a little more about its use by Black healers and warriors here.

https://batjc.wordpress.com/resources/pods-and-pod-mapping-worksheet/ - lots of great resources on this blog, but this piece is where you can learn about pods - small circles of relationships that turn to each other to respond to violence

http://restorativejustice.org/ - an international RJ organization, tons of resources on this site

https://brownstargirl.org/care-work-dreaming-disability-justice/ - care work: dreaming disability justice by leah lakshmi piepszna-samarasinha. worth getting the book; some essays are available online if you look around, and i can probably get them to you if you’re having trouble.

while you’re at it, check out https://www.sinsinvalid.org/blog/10-principles-of-disability-justice for more about disability justice

https://www.feministes-radicales.org/wp-content/uploads/2010/11/Angela-Davis-Are_Prisons_Obsolete.pdf - pdf of are prisons obsolete? by angela davis

i love you. keep reading, keep learning, keep fighting. this is how we heal our world

reblogging because of that unexpected Kamen Rider img, I'm screaming.

(hijacking my own reblog, yes)

#this exact concept has pretty much been the backbone of kamen rider stories since 1971 btw #Kuuga and Build tackle the concept in this context the best though #Justice isn't a well defined concept it's a vauge description#in reality freedom for humanity #from opression #from hate #from prejudice #and freedom to the right every human on this planet should have which is happiness at the expense of no others#this is the goal we should always be fighting twords #I'm not reblogging this without those social activist links because those are an important resource

don’t talk to the cops! they aren’t joking when they say that anything you say can and will be used against you in a court of law. be sure to use these words exactly; no uncertainty in upholding your rights.

One of the most important things I learned in my Language and the Law class is that law enforcement will intentionally misinterpret every type of statement asking for a lawyer as not asking for a lawyer. Even directly saying it like this “I will not speak to you without a lawyer” can be taken as a simple statement of fact rather than a request for a lawyer. You literally have to state “I am now invoking my right to a lawyer” and every time they try to proceed with an interrogation you have to answer every question with “I am invoking my right to have a lawyer present”. You can’t just tell them you won’t talk without a lawyer or that you want a lawyer. You have to state that you are invoking your rights. Otherwise they could just say “well they just said they wouldn’t speak without a lawyer present. That’s not invoking their rights to a lawyer. It’s just stating a fact.” even just stating your right to a lawyer doesn’t count!

PLEASE share this addition. I am a lawyer who works in criminal defense, and this is one of the most avoidable things that people consistently get wrong about the Miranda rights.

Here are some more “ambiguous” phrases which courts have found DO NOT invoke your right to a lawyer:

“Maybe I should speak to my lawyer first.”

“I might like a lawyer.”

“I think I should have a lawyer present for this.”

“Could I speak to my lawyer first?”

“How long until my lawyer gets here?”

And perhaps most egregiously – “Get me a lawyer, dawg – ‘cause this is not what’s up.”

Here are the magic phrases which you need to know if you want to invoke your Miranda rights:

1) “Am I free to leave?”

It’s worth asking this even if the answer is obvious. Even if the officer does not let you leave, by forcing them to admit that you are not free to leave, you are creating a record which your attorney can use to prove that you were in custody. Miranda rights only apply if the interrogation is custodial, meaning that police officers will frequently claim that their suspects were “not in custody” to get around their Miranda rights.

2) “I am invoking my right to remain silent.”

Simply staying silent will not invoke your right to remain silent. As absurd as this is, you must explicitly say that you are invoking your right to remain silent in order to invoke that right.

3) “I am invoking my right to an attorney.”

As stated above, you must be not only clear and unambiguous, but clear and legally unambiguous. Don’t get cute. Don’t get sassy. And on the flip side, don’t get intimidated and use verbal ticks to minimize your request. Say the line with those words exactly – say it clearly, and say it once, and then say nothing else.

Because even after you’ve done all this, the police can still try to get you to talk. They’re not supposed to interrogate you, but they’re allowed to make casual conversation, and if that conversation just happens to circle back around to the thing they wanted to question you about, well, that’s really your fault for talking after you said you wouldn’t, isn’t it? Can’t possibly fault the poor officers when you initiated – if you really wanted to have your rights respected, you wouldn’t have talked to them in the first place.

The police know this, and they will mercilessly exploit this loophole. So, once you’ve successfully invoked your Miranda rights, any and all conversation you have with police officers will put those rights back into jeopardy. 

Putting it all together:

Ask: “Am I free to leave?”

If they say no, say: “I am invoking my right to remain silent and I am invoking my right to an attorney.”

And then shut up and do not say a single thing to them for any reason whatsoever until you have actually spoken to an attorney. Yes, even if it takes hours. Yes, even if they start talking to you about something else.

Finally, a very important disclaimer:

I may be a lawyer, but I’m not your lawyer, and I cannot guarantee that what I’ve just laid out here will always work for every situation. We didn’t get to this bizarre and absurd place overnight – we built this ridiculous system piecemeal, by deciding on a case-by-case basis that certain phrases were “too ambiguous” or certain types of questioning weren’t actually questioning at all. The law is still in flux, and is still fundamentally out to get you, and willing to bend plain meaning beyond all recognition to do it. Even if you invoke your rights perfectly, exactly as I have specified above, there’s a chance that your invocation of rights will be disqualified on some new technicality that no one’s even thought of yet – and that’s precisely the problem.

Watch this video: “Don’t Talk To The Police”