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.