Hachette v. Internet Archive

I am not a lawyer, but I love constructing counterexamples. I’ve been thinking about the Hachette v. Internet Archive. The Archive scanned a bunch of books they owned, and then lent the scans to users on the Internet, making sure that for each physical book, only one scan was lent at a time. The courts ruled that this was copyright infringement.

I imagine a sequence of cases for a library (the Internet Archive is officially a library in California):

1. A user comes to the library and reads a book in the ordinary way.

2. The book is delicate and valuable, so the library puts the book in a metal box with a window, with delicate robotically controlled page flippers controlled by buttons outside the box. The user reads the book through the window while flipping pages with the buttons.

3. Same as 2, but the user wears glasses.

4. Same as 2, but the user lives across the street from the library, and the librarian has placed the box in the library window so pointed that the user, and the user alone, can read the book via an ordinary refracting telescope, with the user having buttons connected to the page flippers via long wires.

5. Same as 4, but the telescope is digital: it has an optical sensor connected electronically to a screen (basically, a CCTV system).

6. Same as 5, but the optical sensor is inside the library while the digital telescope’s screen is in the user’s home.

7. Same as 6, but the user can be arbitrarily far away, because wires are very long.

8. Same as 7, but instead of custom wiring for the connection between the sensor and the screen and the user’s button’s and the page flippers, a TCP/IP protocol over the Internet is employed.

9. Same as 8, but to reduce wear and tear on the book, the sensor caches the images, so that if the user chooses to jump to a page that has already been viewed, the flippers do not need to operate. The cache is deleted at the end of the session.

10. Same as 9, but the cache is not deleted at the end of the session, but is kept for the next session with the same user.

11. Same as 10, but the cache is kept for the next user. Only one user can access the book at once.

12. Same as 10, but a full cache is generated for all the pages once and for all users. Only one user can operate the system at once.

13. Same as 11, but the whole cache is copied to the user’s device and removed once the loan period expires.

Here, 12 is pretty much what the Archive was doing when it was letting users download books for a period, and 11 was what they were doing when it was letting users view the books via a browser.

If 11 and 12 are not allowed, at what point do things become impermissible?

If the worry is about there being copying, then there is already copying at 5: the electrical data from the sensor is copied to the screen. If the user flips through the book, the copying is of the book as a whole, though the copies are constantly deleted. But it seems to me (who am not a lawyer) that we shouldn’t make a significant distinction between a digital and an analogue telescope. Moreover, even viewing by eye involves copying. As soon as a page of a book is exposed to light, a large stream of copies of the data in the book appear in the air as patterns of light. Whether these copies are in the air or in glass (as in the case where glasses or an analogue telescope is used) does not seem significant. Is it significant if the data is in electrons rather than photons, as in 5?

Perhaps the worry is about non-evanescent copies. That sounds reasonable. When a book is exposed to light, the copies that are immediately made are evanescent (though very large in quantity), and likewise if a sensor and a screen arrangement (e.g., CCTV) is used. Thus, 1-8 might be distinguished from 9-12, and maybe the caching introduced at 9 is the problem.

However, the Internet and other electronic devices already have caching built in at various levels, so there is already some “hidden” caching introduced at 9, so the existence of caching doesn’t seem that significant. It seems like caching is just an efficiency improvement that does not significantly affect the normative issues.

Plagiarism and causation

Suppose I write a paper and you write a paper of the same length. But then I plagiarize your paper using the following procedure. I look at the first character in our papers, and if it’s different, I erase (unless it’s a space) the character in my paper and write down the character you had in its place. And then I repeat for the second, third, and so on. I then submit the paper for publication.

It seems clear that I’ve plagiarized your paper in its entirety, even though some of the letters in my paper weren’t erased as by coincidence I originally had the same letter in the same place as you did—this will happen more often with more common letters like “e”.

But what if, by chance, your paper and my original paper were verbatim the same, and I never noticed this? Then the paper I submit for publication depends for all of its content counterfactually on the paper you wrote, but not a letter was changed from the paper that I wrote. If authorship is defined by causation, then the paper I am submitting is my own. If it’s defined by counterfactual dependence, it’s yours.

I don’t know which is the right answer.

An argument against psychological identity theories: accuracy and reliability of copying

According to the psychological identity theorist, if the contents of your mind (e.g., brain or soul) are copied into another mind (brain or soul), with the original mind destroyed, you will survive and come along with the copied contents. Now, plausibly, perfection is not needed in the copying. If one digit in the memory of your phone number is not copied over, and everything else is, then surely you will survive that, if you would survive any such copying operation at all. But some fidelity in copying is needed.

We can measure a copying operation in several ways. For any portion of the information to be copied (think of a 0/1 value or a continuously variable value, for instance), we can talk of the accuracy of the copying, which says how similar is the output of the copying procedure in fact was to the input, and the reliability of the copying, which is a measure of how likely it was that the output would have a given accuracy. (We can come up with various ways of quantifying this, but it doesn't matter.) Now, for a mind-copying to at all plausibly move a person from one mind to another, there has to be both overall accuracy and overall reliability. One won't do without the other. One could, after all, have very high reliability in copying, i.e., a high probability of accuracy, but be unlucky so that the the output is completely unlike the original. The psychological identity theorist would not say the person was moved then, since few of the memories and character traits would have survived. Nor would high accuracy with very low reliability transfer a person. Take a limiting case of low reliability where the output is entirely random and independent of the input. Nonetheless, one might be lucky, with the output by chance being just like the input. That wouldn't result in person-transfer, either. After all, if my mind is destroyed, and completely by chance a man arises randomly after lightning hits a swamp in Transylvania and that many by chance has the same mental states as I did, that man wouldn't be me.

So, we need both high accuracy and high reliability for person-transfer to occur. But now note that reliability is in part an extrinsic criterion. It measures the probability of accuracy. Suppose that you're undergoing a mind-content transfer procedure, and Dr. Black, the evil neurologist, after having starred in Frankfurt's Neurologist, XIII, happens to be sitting around in the lab. Now, almost all of the time when Dr. Black is in a lab when a mind-content procedure takes place, he hijacks the procedure, and ensures that while the subject's original mind is destroyed, the data transfered to the output mind in fact is a very poor copy of the subject--in fact, it is a copy of Dr. Black's vicious mind. This time, however, Dr. Black is distracted, and forgets to hijack the procedure, and only remembers once the operation is done. The reliability of the copying process is very low--Dr. Black was very likely to hijack it.

This leads to the following absurd conclusion. If person-transfer through copying of content is possible, then whether Dr. Black is in the room when the procedure happens determines whether the subject survives the procedure--even if Dr. Black in fact is distracted and in no way causally interacts with the process. Since this absurdity comes from psychological identity theories, we should reject psychological identity theories.

But what if one bites the bullet and says that whether Dr. Black is in the room when the procedure happens does determine whether one survives. Now I have a second move. What happens in copying is a causal process whereby an earlier mind causes a later mind to have the same content. The same thing is happening in us all the time. Our brain's having a certain neural state at t₁ (e.g., a state correlated with a belief that 2+2=4) will often cause that brain to have the same state at t₂. Our brains are always in a state of flux, and the brain's preserving of information is relevantly very much a process of copying. (Plato says something like this in the Symposium.) Suppose now that you live your ordinary life, but Dr. Black keeps on shadowing you, with his neurological equipment, and he keeps on planning to subvert your brain's data preservation processes, but whenever he is about to do so, by a very small chance, he is distracted and does not. In fact, Dr. Black does not interact with you causally. But his presence makes the reliability of the transmission of data from the past to the future in your mind be very low. By the same reasoning as above, it follows that the mere presence of Dr. Black kills you--even though he in fact does not interact with you.