3 Count: Falling Out of Favor

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1: Internet Archive Files Final Appeal Brief in Book Scanning Case

First off, today, Andrew Albanese at Publishers Weekly reports that the Internet Archive has its final brief in its appeal against a lawsuit filed by book publishers over the site’s “controlled digital lending” policy.

For some time, the Internet Archive lent scanned copies of books it owns in an online “library,” claiming that controlled digital lending meant that it never provided more copies than it owned. However, in early 2020, in response to the pandemic, the Internet Archive removed those restrictions as part of its “National Emergency Library” initiative, which prompted the lawsuit. That lawsuit not only challenges the National Emergency Library initiative but the practice of controlled digital lending more broadly.

In the lower court, a judge found in favor of the publishers, saying both were infringements of their rights. The Internet Archive has appealed the case, with the publishers arguing that the lower court ruling should stand. On the other hand, the site argues that what they are doing is fair use and is permissible under the law. They argue that the judge misunderstood both the facts and the law and that the judgment should be reversed.

2: Games Industry Lobby Still Says No Way to Preservation Efforts, Copyright Exceptions

Next up today, Owen Good at ReadWrite reports that the Electronic Software Association (ESA) has told the United States Copyright Office (USCO) that it opposes any exceptions to copyright protections to enable the preservation of video games.

The USCO is amidst its triennial Digital Millennium Copyright Act (DMCA) exception process. Under the DMCA, circumventing digital copyright protections is unlawful. However, the USCO is tasked with creating exemptions to that blanket rule, which have to be reviewed and renewed every three years.

This time around, advocates for video game preservation are asking the USCO to carve out exemptions to enable them to keep games alive, in particular after game servers go offline. However, the ESA says that any such exemptions would enable additional piracy. The hearing is part of the ongoing public comment phase of the rulemaking process, with final decisions expected this fall.

3: People Are Getting Copyright Strikes for Sharing Fallout TV Show Memes

Finally, today, Jennifer Young at Windows Central reports that while the Fallout TV show has been a huge hit for Amazon Prime, some online fans report that their memes based on the show are getting hit with copyright notices.

The issue seems to be primarily happening on X (formerly Twitter), where user memes are being removed due to copyright complaints. Several users noted that memes and other images they had shared of the series were being removed due to a complaint by Amazon Studios.

However, after further examination, it appears not to be images from the show but behind-the-scenes images that were removed. Clips and memes from the show itself appear unaffected, though it’s unclear why Amazon is making the distinction.

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