This ruling is not about the emergency library at all. It's a ruling that controlled digital lending (one physical copy backing each digital copy lent out) is illegal.
So, I guess you just don’t own anything you buy anymore? Like what if I want to lend a tool to someone, and the tool manufacturer wants to rent their tools out? Is that also illegal?
What if the tool contains software?
What if reasonable use of the tool requires accessing a print manual? A pdf manual?
Edit: Reading the ruling, IA should have argued they are simply format shifting a single copy that they own. I wonder if they did make this argument, and then the judge conveniently ignored it (then lied in the summary ruling, when they say IA made no other arguments in their defense), or if IA’s lawyers screwed up.
That's how you digitally send a copy of a book.
You're saying something similar to "you wouldn't download a car".
It's applying without considering it.
The digital book isn't being kept at the old location because there is no digital book in the physical book.
It's the only way to transfer a single copy of a book without destroying the physical copy.
Judges should consider stuff like this and it's a disappointing ruling.
But go on...
The technicality that they keep a copy of the book while it’s being lent isn’t really at issue here at all. It’s not because there are two copies, it’s because there are three or more copies, given to two or more parties at the same time. It has become “distribution” in the eyes of copyright law, beyond the lending analogy.
I don't know why companies keep trying this. MP3.com, Aereo, etc. The precedent is clear.
In the case of a physical object needing to temporarily go digital, it needs to be sent digitally and the records kept, and of course the physical copy has to be kept.
In the case of the GPL there's no physical copy and thus there's no need to consider how to move from one form to the other.
To require that a physical object never be used digitally is bad for society.
Isn't "fair use" restricted to (a) short portions of a work, (b) used for specific purposes, such as education or criticism?
There are practical differences between the two, which mean that the law probably should treat them differently. I expect a lot of HN have difficulty dealing with that because they think "but they both contain the same information".
It reminds me of people trying to encode books into prime numbers or the digits or pi or whatnot to "get around" copyright. Fundamentally missing the point.
Nor does IA’s promise not to lend simultaneously its
lawfully acquired print copies and its unauthorized reproductions
help its case. As an initial matter, IA has not kept its promise.
Although the Open Library’s print copies of the Works in Suit are
non-circulating, IA concedes that it has no way of verifying
whether Partner Libraries remove their physical copies from
circulation after partnering with IA. Pls.’ 56.1 ¶¶ 495-496. To
the contrary, IA knows that some Partner Libraries do not remove
the physical books from their shelves, and even if a Partner
Library puts a physical book into a non-circulating reference
collection, it could be read in the library while the ebook
equivalent is checked out. Id. ¶¶ 494, 497. IA also does not
inform Partner Libraries when an ebook in its collection is
checked out, and Partner Libraries do not tell IA when their
physical copies are circulating. Id. ¶ 498. IA admits it has
never taken action against a Partner Library that did not
suppress circulation properly. Id. ¶ 499.
But even if all those things weren’t true, or important, it’s profound that there’s enough collective incentive to go after IA, instead of say corporations violating GPL, or the hedgies who created “temporary” artificial supply of stocks (which shares a similar “overprovisioning” aspect, except they’re fraudulent at massive scale).
When IP laws existed to make sure authors could be compensated people broadly supported them. The perception has changed (for many reasons), to where people broadly see IP laws as an enabler for corporate greed more than being about fair compensation for authors. (See Disney not paying owed royalties, for example.)
We can either have "good copyright" that the public sees as reasonable, or we can have rampant piracy and the consequences thereof. The villains of the piece are those who deliberately perpetuate an unsustainable system out of greed (and I am not talking about authors and publishers trying to get paid for the work they've done).
It was always from the very beginning a way to protect profits, that was the primary intent of copyright law, to give the creator of a work the exclusive right to make the money from the work before others are allowed to take the content and sell it for their own profit. Yes the length has become crazy long, and yes the law limits free (as in beer) access to information, but that hasn’t changed the reason for it’s being at all. It’s not really a “concession” either, more like it was intentionally balanced to provide enough time for people to make profits (which is what economically encourages creative work), while being short enough to allow works to reach the public over time.
1. IA actually buying a physical copy (or as many copies as they plan on simultaneously making available to borrowers) of the book. 2. After scanning the physical copy, destroying it, and documenting same.
Then as long as they guarantee that they only loan out as many copies as they physically had (before destroying them) there's no question of simultaneous usage.
I like the IA, but I’m happy this was the screw up. It should greatly weaken the precedent this ruling creates.
Most importantly here, information falls under "means of production", so under communism it should be free.
Freedom of information under capitalism is (as everything) a discussion about money.
I admire your optimism, regarding the copyrights future. Fingers crossed.
My point being: as technology marches on the ageing concept of "owning" entirely fungible digital material becomes less and less valid. It is already at a stage meaninglessness is flirting with it in a new way daily and that will continue.
Really, we need to let it go.
>Every part of that has been deemed legal. Copyright law already has first sale rights, written directly into the law and allow for the lending or reselling of copyright-covered works without a license or permission. Similarly libraries are given explicit rights to make copies, so long as those collections are made available to the public. On top of that, courts have determined, multiple times, that book scanning itself is fair use for libraries.
>So, literally each separate component of what is happening with Controlled Digital Lending has already been deemed to be legal and exactly what we expect libraries to do.
>To counter this, publishers (and their supporters, which unfortunately include some authors) argue that (1) this interferes with the market for licensed ebooks, and (2) that there is a real difference in lending out the digital scans: that they don’t deteriorate the way that physical books do.
Whether a copy of a work is fair use turns on, amongst other things, the effect of the copy on the potential market for the original. The article acknowledges this.
Controlled Digital Lending competes directly with the licensing scheme publishers have for library ebooks. The fair use argument was always doomed to fail.
The article then completely ignores the copyright argument and tries to equate CDL with libraries loaning out their physical copies. This is completely absurd, since libraries do not distribute duplicates of their physical books and so do not even enter the realm of copyright.
If libraries were systematically distributing duplicates of their existing books they would be sued for copyright infringement.
There may be a question of definition here. Do you mean that they have to lend it, but they cannot give it away?
They intend to say "libraries do not distribute duplicates of purchased books; they distribute the originals".
Unfortunately the word "copy" could also mean "the books purchased by the library". Of course the library distributes purchased books. They just don't scan the books, print fascimiles of those books on new paper, and then distribute those prints they made themselves.
I'm not convinced fair use is the strongest argument in IA's case. But the idea that lending ebook copies can't be fair use simply because it competes with publishers' ebook licensing schemes seems like a misreading of how fair use is typically applied.
Of course other fair use considerations factor in, but the market impact for a specific format isn't a death blow against reproductions of a work, generally speaking.
It's not impossible for a case to win when competing against a licensing scheme, but it is very, very, very hard.
I don't see the argument that this is "distribution" any more than regular (obnoxious) ebook lending is.
The courts have gone back and forth on this issue, and I would expect this ruling to be appealed by either side if they had lost.
Nothing. Which is why losing was inevitable.
Then truly they would be lending only a copy, which was never legal to begin with.
I thought the IA was in a bad place before, but they got very shown up in court.
Wow, so they're arguing that the destruction of the sold good is implicit in the sale, and that preventing that is therefore illegal.
Broadly speaking, physical books last much longer than ebooks have been proven to. With preservation measures, you can get 100s of years out of a single book copy, but even without most books will last for decades unless something catastrophic happens or someone destroys them on purpose. I have several books from the 1800s that weren't cared for at all (picked up at an estate sale) and they're perfectly serviceable and would be fine if I rebound them.
So I have books from the 1860s that are still usable. Given how the digital world has developed, the odds of someone's Kindle or ePub file being viable in 2180 is exceptionally low. In the same way that playing old video games can be a hassle, I'd be shocked if we're still using the same files and formats in 160 years. (Outside of us weirdo archivists of course).
I would start a webtorrent+ipfs+i2p site in Iceland just to get around this insane perpetual monopoly on difficult-to-find, old shit that doesn't have a market but publishers keep locked away.
And you don’t need to do anything at all; all of these books have been freely available on IRC for years.
I found this chart interesting, and unexpectedly complicated: https://www.belmont.edu/legal/pdf/Public-Domain-Chart.pdf
Based on that I think a heuristic of 100 years is broadly correct.
Human knowledge remains entirely unaffected by this ruling.
Libgen?
Redbox tried this theory several years ago when they were trying to launch their film streaming service, and failed for the same reasons.
I thought Kindle/Nook/Apple books/etc completely dominated that market. Reading PDFs on computers/tablets for long form stuff never made much sense to me. I'm curious if local libraries get much traction from their digital libraries.
I could see audiobooks getting locked down being a big hit though. Audible has a monopoly on that harder than ebooks ever experienced.
Did you mean 2020? Or did they spike before the pandemic really started?
I also occasionally let him have a little bit of Libby or scratch time (which I deem "educational") before going to school or before bed. (Everything is contingent on behavior.)
Aside from minecraft/pokemon stuff, he typically reads a mix of kids graphic novels and books. Including Tristan Strong, Artimis Fowl, Wings of Fire, Dogman. He's also read Harry Potter, some Terry Pratchett, and Tolkien. He first read the Lord of the Rings in the summer between first and second grade, which blew my mind (it was middle or high school or me). So I don't really worry about stuff like the ratio of graphic novels to textual books.
Those books are licensed to the libraries by the publishers. The introduction of the opinion here explains how it works:
> This dispute concerns the way libraries lend ebooks. Public and academic libraries in the United States spend billions of dollars each year obtaining print books and ebooks for their patrons to borrow for free. Pls.’ 56.1 ¶ 113. Libraries usually buy their print books from publishers or wholesalers. Id. ¶ 114. Copies of ebooks, however, are typically not bought but licensed to libraries from publishers through distributors called “aggregators.” Id. ¶ 117. The Publishers task aggregators with ensuring that a library lends its ebooks only to the library’s members. Id. ¶¶ 123, 125. The Publishers also require aggregators to employ approved “digital rights management” (“DRM”) software and other security measures to prevent unauthorized copying or distribution of ebook files. Id. ¶ 126.
https://storage.courtlistener.com/recap/gov.uscourts.nysd.53..., page 3 (emphasis added).
If I rightly own a copy of a book, I don’t think any court within the bounds of absurdity would say I can’t make a digital copy for myself because that’s how I prefer to consume it. Being allowed to lend one finite form but not another equivalent one is definitely something law or license might specify, but that doesn’t mean it makes any kind of sense.
"myself" being the operative word here.
you can make 100 copies for yourself. what you can't do is make a copy that you give to someone else while simultaneously retaining access to the original (or another copy).
the way libraries work is by relinquishing posession, which replication would circumvent.
I’m pretty sure I can do that.
> the way libraries work is by relinquishing posession
I almost included that I could shred my copy, keeping only the digital equivalent, and still retain the same rights to the work and lending it.
Any individual in IA’s position could do this without fear of legal scrutiny. An organization doing it is under scrutiny not because there’s actual, meaningful copyright violation happening but because they systemized a thing no reasonable person would object to individuals doing.
Not legally.
> I almost included that I could shred my copy, keeping only the digital equivalent, and still retain the same rights to the work and lending it.
This is the part that is not true. For example, you are free to transcribe a book onto a parchement and read it that way, and store the parchment separately from the book for archival purposes, and keep the parchement even if the original book gets destroyed.
However, this is a limited exception to copyright. You are not in fact allowed, at any point before or after the original copy is destroyed, to lend or re-sell the parchment you created. That parchment will forever be an unauthorized copy, but one that you are allowed to use in certain limited ways.
The only wrinkle is that, at least in the EU, when you acquire an authorized digital copy of a work, you are allowed to lend or sell that copy as long as you don't retain access to it during the lending/after the sale. This is allowed even though technically you are technically creating a new copy of the digital work and destroying your own afterwards, but this is an exception specific to digital realms, it can't be extended to digital copies you make of a phyisical work.
Inspired by the fact that my emulation of Link's Awakening to play on a screen I could see is technically legal since we had a cartridge stuffed away in a drawer. But for 10-15 years that cartridge lived in a limbo land of 'we used to have that, it might still be around somewhere...'
Basically, the only thing you are legally allowed to sell is the exact copy you bought of a physical representation of a work, assuming it was created by an authorized entity. You do not legally own an abstract copy of the idealized work, you own a physical object which happens to represent a copy of that work.
Note that this is in fact very much how most people would think of copyright. If I buy a book and someone steals it from me, or it is there in my house and it burns down, I don't have some right to now obtain another physical representation of that novel free of charge, or to obtain a copy made by a friend with a xerox. My sole right was to that one physical copy I bought, and that no longer exists.
That's not what I read in the linked article, specifically:
Regarding "IA’s promise not to lend simultaneously": "IA has not kept its promise. Although the Open Library’s print copies of the Works in Suit are non-circulating, IA concedes that it has no way of verifying whether Partner Libraries remove their physical copies from circulation after partnering with IA…. To the contrary, IA knows that some Partner Libraries do not remove the physical books from their shelves"
As I understand it, this case exists because the IA was not keeping its promise anymore and made an error of judgement by breaking the 1:1 ratio without any legal argumentation or even a logical reason for it. It was said at the time already, but the obviousness, whether something as important as the wayback machine's owner should compete with the pirate bay for market share on illegal ebooks, and the use of (my/our) donated money on the ensuing legal nonsense, is a different discussion...
If these underlying facts and circumstances were different, such as if someone tries this concept again but keeps their promise and implements it correctly, the same ruling cannot be passed because it's not the same situation. It would have to be tried again and it might (or might not) swing the other way, at least that is my general understanding of legal systems around the world.
Perhaps it would also be different in another country whence ExampleBooks Ltd could operate legally, that will depend in part on whether the copyright alliance pact (I forgot the name) has provisions letting signatories (afaik that's every nation you might want to live in) make exceptions for things like this.
That’s not really true. One issue described explicitly in the decision is that the lending is mostly uncontrolled, and worse there’s evidence of it the defendant was aware of. The second issue is that the defendant isn’t using the first sale doctrine, their defense is fair use. Presumably the whole reason they decided to argue fair use is because they knew they weren’t adhering to the lending analogy, because they were aware they were effectively distributing copies, not just lending them.
And with only narrow exceptions that probably don't apply here, this act of circumvention violates 17 U.S.C. 1201(a)(1)(A)[1] unless the copyright owner has authorized the process (as they do with licensed playback devices and software).