this post was submitted on 24 Aug 2024
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“Bypass” and “Circumvent” are nearly synonymous in some uses - they both mean “avoid” - but that’s not really the point.
From a legal perspective, it’s pretty clear no circumvention of technological protection measures is taking place*. Yes, bypassing or circumventing a paywall to get to the content on the site itself would be illegal, were that content effectively protected by a technological measure. But they’re not doing that. Rather, a circumvention of the entire site is occurring, which is completely legal (an obvious exception would be if they were hosting infringing content themselves or something along those lines, but we’re talking about the Internet Archive here).
* - to be clear, I’m referring to what was detailed in the request, not the part that was redacted. That part may qualify as a circumvention.
Following the same logic, Steam could claim that a browser extension showing where you can get the same game for cheaper or free circumvents their technological protection measure. It doesn’t. It circumvents the entire storefront, which is not illegal.
That’s the same thing that’s happening here - linking to the same work that’s legally hosted elsewhere.
Yes - if they don’t want their content available, that’s what they should do. They might not want to do that, because they appreciate the Internet Archive’s mission (I wonder if it’s possible to ask that content be taken down until X date, or for content to be made inaccessible but for it to still be archived?) or they might be taking a multi pronged approach.
Good point. If so, and if their site isn’t legally compliant in the same ways, then the extension becomes a lot less legally defensible if it’s linking there. That’s still not because it’s circumventing a technological protection, though - it’s because of precedent that “One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses,” (Source), where “device” includes software. Following that precedent, plaintiffs could claim that the extension promoted its use to infringe copyright based off the extension’s name and that it had knowledge of third-party action because it linked directly to sites known to infringe copyright.
The Digital Media Law Project points out that there are two ways sharing links can violate the DMCA:
I’m not sure how the extension searches web archives. It if uses Google, for example, then it would make sense to serve Google ae DMCA takedown notice (“stop serving results to the known infringing archive.piracy domain”), but if the extension directly searches the infringing web archive, then the extension developers would need to know that the archive is infringing. Serving them a DMCA takedown (“stop searching the known infringing archive.piracy domain”) would give them notice, and if they ignored it, it would then be appropriate to send the takedown directly to their host (Github, the browser extension stores, etc) citing that they had been informed of the infringement of a site they linked to and were de facto committing contributory infringement themselves.
Given that they didn’t do that, I can conclude one of the following:
The Internet Archive has a special legal DMCA exemption that companies want removed because they want money. They have this exemption for a reason, but they shouldn't have to have one in this day and age where kids get polio in Gaza in 2024. What kind of hell is this... My grandparents mess shouldn't me mine.
Eligible libraries, archives, and museums have a few exemptions to the DMCA’s anti-circumvention clauses that aren’t available to ordinary citizens, but these aren’t unique to the Internet Archive. For example:
This exemption doesn’t allow them to publish the content, though, nor would it provide them immunity to takedown requests, if it did.
These exemptions change every three years and previously granted exemptions have to be renewed. The next cycle begins in October and they started accepting comments on renewals + proposals for expanded or new exemptions in April, so that’s why we’re hearing about companies lobbying against them now.