Four years ago, on the old site, I wrote about how Archive.org’s OpenLibrary project was systematically violating the copyrights of a number of authors, including Diane Duane and Mercedes Lackey. Archive.org seemed to feel that making digital copies of paper books and loaning them out as if they were the paper books as long as it restricted the paper books from circulating while the digital media were out was a fair use of those books. Even though the Authors Guild had been absolutely gung-ho about chasing Google all the way to the Supreme Court just for serving up snippets, the Internet Archive checking out entire books was somehow beneath its notice.
After that, the strangest thing happened: nothing.
For four years, Archive.org has chugged right along digitizing books and setting them up for checkout, without the Authors Guild or anyone else saying one word about it. And while I will admit that, in at least one case, this let me find a long out-of-print book I’d been wanting to get my hands on, it’s still not exactly legal. (Or, at least, it hasn’t been shown to be. More on that later.) Even the X-COM novel that originally prompted me to make that discovery is still up and available.
Finally, when the Archive got all that press a couple months back about how an obscure copyright law was going to let it ignore copyright on some books published between 1923 and 1941, I couldn’t stand it any longer, and I actually emailed the Authors Guild’s contact address asking why they continued to do nothing about the Archive’s violation of copyright.
Authors Guild Executive Director Mary E. Rasenberger replied:
This is something we are actively following. We have had letter/email exchanges and conversations with the Internet Archive, and indeed offered to work with them on this project to assist in getting rights from authors of out of print books, but only if they would do it within the bounds of the copyright law. But it appears they are not. Some of what they are doing is arguably fair use under the Haiti Trust and Google Books decisions, but the notion of relying on the first sale doctrine and fair use to allow IA to provide a digital copy to any library that owns a hard copy of a book in their collections and then e-lend that digital copy is ludicrous. I believe they are relying on an argument made in an amicus brief the IA signed onto in the ReDigi case, which is not going to fly. Yes, fair use even today does have some limits.
Finally, a few days ago, mention of OpenLibrary’s putative copyright violations showed up, posted by authors I follow on Facebook—and as I learned from a reader email today, this is because the Authors Guild finally deigned to alert its members that OpenLibrary was scanning and checking out their books without permission.
I still haven’t seen any mention of this on news sites, but I did run across a post on AG sister organization The Society of Authors’s site with a few more details. Apparently OpenLibrary just posted a big new batch of book scans, including a number of in-copyright books, and the Authors Guild just found this a bridge too far. Presumably, now that the Authors Guild has put out an alert, a lot more authors and publishers will start demanding their books be removed—and possibly look into legal action as well.
I can understand why the Internet Archive is doing what it’s doing. Brewster Kahle is a long-time copyright reform activist, and one of the ways you work copyright reform—or, indeed, any kind of reform—is trying to push beyond where the laws stop, and hoping you can worm yourself the rest of the way into the tent like the proverbial camel. I can even sympathize with it somewhat, as it’s trying to pull off a kind of clever legal hack based on fair use cases we commonly take for granted. But taken as a whole, I think it has the potential to go altogether too far.
As I stated in my original post:
Most commercial e-books are not sold but licensed, whether publishers and stores say so out front or not, but library e-books are more licensed than most. Publishers set specific and often restrictive terms for libraries to be able to check out e-books, fearing that library e-books lead to cannibalization of sales. Sometimes this has been the source of controversy, as publishers elected to impose limits on how often books could be checked out, or even disallowed them to be checked out at all.
And publishers have long resisted treating book formats interchangeably—insisting, for example, that each separate format of e-book Fictionwise offered had to be treated as its own separate and distinct edition. Buying a MOBI format book didn’t entitle someone to a copy of the EPUB too, and vice versa, even though they were the exact same book with the exact same text. Are they going to let libraries treat a paper book as an e-book surrogate willy-nilly? I don’t think so.
Now, Open Library might be able to make a case for the fact that they should be able to treat a paper and electronic copy made from it as interchangeable, under fair use. There is case law supporting fair use interpretations for the ability to time-shift and format-shift media for one’s own personal use after all. (Though what Open Library is doing with these files goes a bit beyond mere “personal use.”)
When you get right down to it, that’s exactly what they are doing—effectively treating a paper book as if it’s interchangeable with the digital copy they made, just as you or I might treat MP3 files the same as we would the CD we ripped them from. You can sort of see the logic of it, though. It’s fair use for us to rip our CDs and listen to them on our mobile devices, as long as we keep our copy of the CD and delete the MP3s if we sell the CD. But that’s something individual people do. It just doesn’t scale up to something like a lending library.
The idea of freely checking out a digital copy as long as they lock a print copy up is more than a little disingenuous—are they even in the business of checking out print copies to anyone if they’re not setting them aside as digital placeholders? And that’s not even mentioning that, adding insult to injury, many of these books are used or even library rejects, meaning the authors didn’t even get paid for the print copy. (By the principle of First Sale, Archive.org is in the clear on that count, but it nonetheless doesn’t endear them to the authors.)
I’m somewhat sympathetic to Kahle’s goal, much as I’m sympathetic to anyone who is fed up with the clunky way in which the centuries-old institution of copyright has tried to adapt to the digital era. But letting this sort of thing fly would simply break too much of the existing ebook marketplace—especially when we get to the point where scanners are smart and fast enough that anyone can turn a print book into an ebook.
Pre-owned print books are cheap and plentiful; just look at all the well-stocked used bookstores out there, and the huge number of used titles listed for a penny plus shipping on Amazon. And ebooks don’t wear out like print books—that’s one of the reasons publishers’ library ebook programs either charge much more per ebook, or else limit them to a set number of lends before they must be purchased again.
If all you had to do was buy and scan a print book for each copy you wanted to lend out digitally as often as you wanted, it would undercut the publishers’ own library-book licensing programs. Which, in turn, would lead to them not being able to pay writers as much, which would in turn lead to them not being able to produce as much new content. By the same token, it might also lead to less income for self-publishing writers if fewer people need to buy their ebooks.
(Also, OpenLibrary’s use of easily crackable DRM on its ebooks would lead to people being able to keep any ebook they wanted for free. But this is a problem that current library ebooks also have, and nobody seems to be too worried about those. Given the terrible quality of Archive.org’s unproofed scans, that’s probably even less of a worry by comparison. But once the tech improves? That might be another story.)
If and when this ever finds its way into a court of law, I foresee it meeting with a lot less success than Google Books’s case did. One of the four important pillars of the Fair Use legal test is the effect the behavior has upon the existing marketplace. Google Books was so new and different, it had nearly no effect on any existing market—but OpenLibrary would directly compete with the publishers’ own library licensing programs, while not returning any money to the authors.
I’m not thrilled with the limitations publisher ebook programs impose on consumers, but at least they do pay the authors, which in turn leads to more books being created. Trying to “reform” copyright by replacing that with something that doesn’t pay them simply isn’t going to fly. There has to be a balance between the rights of the public and the rights of the creators—even if not everyone agrees about where it is.
I don’t believe in “need to know”. I believe that all the written words of all the world, in all of its history, should be available for everybody to access. What we need to do is figure out a way to do that and still pay authors.
Where we part ways is that you believe that paying the authors is primary, and will accept some compromise to access to make that happen. I believe that access to information is primary, and will accept some compromise to compensation to authors to make that happen. We need to work to make that compromise as small as possible, so that the two positions are closer together. But the situation that we currently have, where many works are unavailable to most people because the rights can’t be untangled, is unacceptable.
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I’m all for open access. And I’m certainly not one of those people who labors under the mistaken belief that the entire purpose of copyright is to make sure the authors get paid. Of course it’s not. The purpose of copyright is to promote the progress of arts and science, by making it possible for creators to earn a living out of their works for a while. We might disagree on how long that “while” ought to be, but incentivizing creators to create is an important part of that balance. (Which is why the post-death copyright extensions make so little sense, since you’re not going to get any more work out of a dead author by giving him another few decades of copyright.)
I think it’s a mistake to drive as hard as possible for open access without ensuring that creators still get that incentive to create. Copyright reform activists tend to focus hard on the “To promote the progress of science and useful arts” part of the copyright clause, but the rest of it—“by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”—is just as important.
I think the first principle of copyright law should be that it never deny access to anything, at least with respect to books.
Since copyright’s effect in most cases is to deny access to books whose rights holder is unknown and our out of print I find it difficult to lament the violation of those laws in those cases. Also, for the reasons Chris gave, in the cases where the author is dead.
Also I don’t think the purpose of copyright should be to insure that authors make a living. It should help them get paid for their work. That’s a very different thing. No-0ne is entitled to a living in a capitalist society.
Also copyright should give rights to authors, not to publishers. Publishers should get paid for publishing and helping protect the rights of authors but copyright shouldn’t give them any rights not assigned to them by the authors and those rights should expire when the book has been out of print for a while.
If copyright law included some provision for releasing books when they’ve been out of print for a reasonable time that would make sense. But it doesn’t.
Laws that restrict a whole society for the financial benefit of very few are bad laws. The vast majority of books under copyright benefit no-one. That is far worse, in my view, than sharing those books illegally.
I prefer to be a law-abiding person and in general I am. I obey speed limits. I refuse to rob banks even if I think I can get away with it. i hardly ever shoot anyone. If I want to read a book I’ll buy it if it’s available to buy. I’m all for buying books. I cringe at some of the prices but I pay them. If I a book that I want to read isn’t available to buy I don’t feel that I’m doing anything wrong by getting it any way I can. And that is one of the beautiful things about the internet.
What we need is a rational copyright system that fits the needs of authors without restricting the needs of our culture.
@ Shirley Marquez ” that will convince me that authors have any right to keep their published works from being read.”
No legal citation will convince you, eh?
So your fantasy with lead heavier than gold, your thriller with a plot that depends on methane being heavier than air and your historical romance that makes you cringe can’t be withdrawn?
I’m not offering an opinion on the law as it currently stands. I’m offering my opinion of what the law SHOULD be. And yes, I believe that nothing should be able to be withdrawn. Anything else smacks of 1984.
Both sides can argue all they want over legal technicalities including the first sale doctrine as applied here, but in the end the issue is sheer lack of resources for libraries. Public libraries in the U.S. can spend only $1.3 billion or so a year on content. Both libraries and writers would come out ahead with a national library endowment providing for fair compensation, with a variety of business models in use. Among other things, the endowment-funded libraries and archives could pay to unencumber old books still under copyright. Looking in the other direction, yes, we badly need to deBonoize copyright law, and if there’s a major draining of the D.C. swamp, maybe this can happen in time.
Quote: Even though the Authors Guild had been absolutely gung-ho about chasing Google all the way to the Supreme Court just for serving up snippets, the Internet Archive checking out entire books was somehow beneath its notice.
You need to refresh your memory Chris. The AG’s pursuit of Google ended with a Google book settlement than would have allowed Google to do much of what it wanted, subject only to Google funding a book database that was a pet AG project. And in that settlement AG pretended to represent the copyright interests of every author on the planet. That was obscene and was why I was one of those filing court briefs opposing that settlement. A few thousand mid-list and mostly American authors cannot represent all the authors on the planet.
And I must comment on the absurdity of this remark by a Shirley Marquez: “I believe that all the written words of all the world, in all of its history, should be available for everybody to access.”
That’s insane, even if you limit it from “all the written worlds of all the world in all its history” to merely published works. Copyright bestows on authors a full right to control the copying of anything they’ve written. They can restrict it to any extent they want, including never being published or being removed from publication. That latter would apply to an author who’s written a popular book advocating ideas he now finds abhorrent. He has a right to end any more copying, including scanned digital copies, to limit as much as possible the reading of his now loathsome book.
In a nutshell, what Shirley Marquez is claiming goes against the right of an author to ensure that his works are NOT READ. And I grow tired of those who gush over some extreme idea like that with no realization that their are countervailing rights that much be taken into account. What’s primary isn’t some silly abstraction like “access to information,” but that the authors has control of what they’ve written. That will, in turn, encourage them to write.
When I comes to libraries, I worry more about reader tastes than library funding. My small town library spends large sums to stock the latest bits of trash from James Patterson and his kin, because unfortunately that’s what many patrons want. Double its budget, and they’d simply buy twice as much of that. In case of James Patterson, that means a guy who’s halfway to his first billion will become a billionaire while a lot of fiction writers worry about meeting their next month’s rent.
So, if the AG was done with Google when the settlement failed, who was the plaintiff when the Google Books case was dismissed by the appeals court and declined by the Supreme Court?
I’m pretty sure it was still called Authors Guild vs. Google. They didn’t shrug and drop the suit when the judge threw out their settlement.
In my view, once you have published a work it belongs to the public. Period. You no longer have any right to stop people from reading it. You DO have the right to make a reasonable profit off it.
We’re just going to have to disagree on this one. I don’t think there is anything you can say that will convince me that authors have any right to keep their published works from being read.
It’s not about keeping people from reading it, it’s about making sure that they do so via the legal framework that has grown up over the centuries to balance the interests of readers and authors. It’s not as if this framework makes it terribly difficult to get your hands on most works via means that are perfectly legal. There are plenty of libraries that offer a great selection of books, both digital and dead-tree, via means that do pay the author. Why do we need another one that doesn’t, and that breaks the copyright laws besides?
I see nothing in the Constitution about the right to withdraw books. It only gives exclusive rights for limited times. Withhold, maybe, withdraw, no.
Once an author publishes something it becomes part of our culture; part of who we are, and an author’s withdrawing it from is isn’t something government should enforce.
Chris wrote: “There are plenty of libraries that offer a great selection of books … Why do we need another one that doesn’t, and that breaks the copyright laws besides?”
Answer: I live abroad on limited means and don’t have access to an English-language library. Discovering Archive.org has been a godsend for me. Instead of working to shut the site down, we should work to make the site better – by figuring out how to compensate authors and revise the legal framework to fit into the digital era.
Section 108 always allowed libraries to make up to 3 copies of a published work during the last 20 years of copyright if it is not commercially available at a reasonable price.
It seems that that the author’s guild is defending the right of author estates to keep already published works out of the public eye. This is both shocking and offensive!
There is an easy way for the copyright owner or author’s estate to reclaim rights. Pay someone to digitalize something, make it commercially available for a reasonable price and send a notice to the Twenty Years project. Problem solved!
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To follow up on my last remark, ordinarily the copyright owner would want the work to be available for sale. If the Author’s Guild is claiming that the copyright holder has the right to deny a work for sale to customers, then we have to ask, what exactly is the Author’s Guild’s mission? Whose interests is the Author’s Guild trying to protect?
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I am an active user of the Open Library and solely use it for books that are out of print. I never borrow books that I can either borrow digitally from my local library or purchase new.
Yes, the books I borrow are still in copyright, but the majority of books I borrow are fiction books from the 1970s and 1980s which will most likely never be republiahed due to their subject and lack of broad appeal.
I used to buy a lot of these books from online used bookstores and it cost me a small fortune on shipping costs as I am in Australia. The Open Library has saved me a lot of money. Even when I was buying these titles, the authors saw none of that money as the books were out of print. I don’t really see the difference between doing this and borrowing out of print from the Open Library. I completely understand the situation is different when the book is still in print.
The Open Library Project seems to be nothing more than a small group of thieves getting rich off the hard work of authors. I bet the staff drive around in BMW’s and live in swank San Francisco digs. They are robbing the bank and I find it reprehensible that they have not yet been sued out of existence. As authors, we actually are owners of our work, not the library, the government nor certainly not trespassers like those at work on the Open Library Project.
Mr. Rensberry, your comment seems a bit reactionary and ignorant of some important facts.
“The Open Library Project seems to be nothing more than a small group of thieves getting rich off the hard work of authors.”
The Open Library Project is, as far as I know, a non-profit group. They aren’t selling ebooks (like what Google tried to do a few years back).
“I bet the staff drive around in BMW’s and live in swank San Francisco digs.”
This is silly and doesn’t really further the discussion.
“They are robbing the bank and I find it reprehensible that they have not yet been sued out of existence.”
Oh, yes, it would be a shame if a public institution were to loan out books for free to help expand public knowledge… Oh, wait, all libraries do that.
They seem a bit behind the curve here. The Internet Arvhive has been doing this for more than a decade now, and, like the SFWA, they only now seem to have noticed.
At any rate, it doesn’t seem to be illegal if they’re not making any money from it. They don’t sell anything. They get their support from donations. And they do acknowledge copyright.
I ended up here because I found a book on archive.org, published in 1967, which I wanted to recommend to my students. It seems not to be legal, and I’d be advocating stealing from the independent second hand booksellers on Amazon; so I won’t be going ahead with it. For books still in print, it is serious theft from the author and I certainly would avoid it.
Totally support openlibrary.org given that no multiple checkout of the same book at one time