Friday, July 15, 2005

The Internet Archive continued

In response to my last post, fellow analyst James Governor speculates that perhaps libraries like the Library of Congress might not be one possible analogy.

If, for purposes of argument, we consider the Internet Archive a library, that could well grant them some exemptions to the rights conferred to content creators by copyright law. Consider this from Section 108 of the U.S. Copyright Act:
§ 108. Limitations on exclusive rights: Reproduction by libraries and archives
(a) Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if—
(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are
(i) open to the public, or
(ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section.

See also here and here for various pointers about copyright law as it applies to libraries. (By the way, nothing in there about the content creator having to give permission or being able to withdraw permission--count another strike against robots.txt having any significance in this case.

However, as with many things digital, I'm still a bit suspicious of physical world analogs. Not just because of the different nature of the media, but also the nature of the institution. We can all agree that the Library of Congress is a Library and that Widener at Harvard is a library and even little Thayer Library in my town of Lancaster is a library. And it's perhaps not too much of a stretch to see the Internet Archive as a form of library. But what if I were to declare my own little web site a library and compile Dilbert cartoons there? (I picked this as an example of content that's posted publicly but only for a limited time.) My guess is that Scott Adams might not approve. Yet, what makes the Internet Archive different in any fundamental way?
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