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Comment by granzymes | Hacker News Reader

The article doesn't seem to understand the issue.

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.

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What IA is doing is removing the physical copy from circulation, making a digital copy, and lending out the digital copy.

I don't see the argument that this is "distribution" any more than regular (obnoxious) ebook lending is.

Laws a bit more open to interpretation and chaining rarely works, it’s humanist, and it’s at its face unreasonable that one physical copy => right to lend out digital cooy.

If the IA is creating their own digital copies of physical books, it could be argued that that the IA is creating and distributing derivative works. I'm not certain, but my impression is that derivative works have little in the way of legal protection.

The court order discusses this, and says while the first sale doctrine means IA could resell or lend their physical books, that right does not extend to unauthorized reproductions (such as making an ebook by scanning in a print book).

They very much do in cases of backups and even VCR/DVR recordings of live TV.

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.

Changing formats without changing content is not a derivative work; it’s just a copyright violation. A derivative work must “add new original copyrightable authorship to that work.” https://www.copyright.gov/circs/circ14.pdf

What’s stopping IA from using the physical book while it is simultaneously lending out a copy?

Nothing. Which is why losing was inevitable.

Isn't this answerable by destroying the physical copy? (not saying that IA took this action, just saying that it removes the complaint of dual use)

No, because if they destroyed the original then they would have no way of saying they have the original and that’s what’s being lent.

Then truly they would be lending only a copy, which was never legal to begin with.

In the industry the title page is often considered to be proof of ownership. E.g. when a book doesn't sell, and book stores want it off the shelves, they may be asked to destroy the books except return the title pages to the publisher, as proof.

Yep, waaaay back when I worked part time in a book store. I've stripped paperbacks.

It would be trivial to document the ownership/destruction of the original. Video the process?

Regular (obnoxious) ebook lending is done under license of the publisher, presumably with the approval of the rightsholders. It may or may not be distribution, but it's approved, so it's ok.

One of the reasons the IA has lost (at least so far) here is that the judge noted they do not really do that, and have no mechanisms in place for doing that.

I thought the IA was in a bad place before, but they got very shown up in court.

Do you believe that libraries should be barred from archiving material to microfiche? How is that significantly different from format-shifting a book to electronic form, as long as they use DRM to limiy concurrent viewing?

I suppose the difference is that publishers aren't suing such libraries and such archival isn't accessible enough to harm publishers' markets.

The second point is crucial. The microfiche copies of e.g. newspapers do not compete with the originals.

IANAL but I think I recall seeing that the US libraries’ initiative to reprint some older books on non-acid-based paper was supported by an explicit carve-out in US copyright law.

Honest question: Are libraries special cased in US law? (They are in many other places, and have rights beyond consumers or businesses.)

The market considerations for fair use concern the market for the work of authorship as a whole, not a specific format of it.

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 only one of the tests, but in legal terms and precident it is a very strong one that HN frequently underestimates.

It's not impossible for a case to win when competing against a licensing scheme, but it is very, very, very hard.

<< If libraries were distributing copies 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?

The parent post makes the unwise choice of using the word "copy" to mean "duplicate".

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.

Ah, thank you. Replaced "copies" with "duplicates" in my post

I think what GP is saying is that when lending (or for that matter giving away) print books, libraries don't copy anything, they just distribute purchased works, which they have a fundamental right to do (in the US). That's different from the IA first making a digital copy and then distributing that copy, which there is no fundamental right to do.

Yes, exactly.

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