IANAL: Can libraries just buy physical books and then format shift (scan+OCR) them?
Many people misunderstand and think it is just about the temporary unlimited lending. It was motivated by that, but went further.
Copyright is an artificial constraint on something that is otherwise constrained only by cost of raw inputs and machine labor (even back in the days of setting the lead by hand)... And in that sense, not very constrained at all. The whole thing is an artifice that tries to encourage creation of novel work by couching monopoly on ideas in property law.
This leaves you with a quantum beast that mostly runs on "vibes." To your example: no, illegal, because you made a copy, right there, when you format-shifted. Or yes, because you preserved the total number of instances. Or no, because you moved a tangible format that is easy to preserve singularity on to a hard-to-audit, easy-to-copy format, thus greatly increasing the risk of copyright fiolation. Or yes, because you actually recorded the fact of the position of the ink on the paper in your original copy, and you can't copyright facts ("this is a historical record of what my book looked like"). Or...
Copyright is a ball of string and chewing gum held together by a few explicit laws and many, many centuries of precedent. It's very hard to predict what the end result of a lawsuit in novel territory will be, because it really does come down to "Which faction do the judges think should have more power today?"
Currently the people putting in the bigger volume of “work” are the “we want the money” faction. Those who claim they own every concept that they touch. Because they will get more money if they win they treat it as both a war and a job.
Some legal-decision makers put in a smaller but more personally costly amount of work to fight against them in that war.
And a few in the general public put in work to try to change public opinion so that either the war can end peacefully (the “we own everything we touch” faction dwindles and get phased out) or we can get enough people to join the legal fights so that we can win the war.
Every time we become complacent they gain ground. Every time we make a stand they try to erode it from all sides. It is the active and vigilant effort despite them that makes forward progress possible.
Almost everybody this thread mistakenly believes that the lawsuit is strictly about the unlimited lending that has long since been suspended - it is not.
The lawsuit was provoked by the unlimited lending, but takes a two-pronged approach - it attacks both unlimited and 1-to-1 lending.
The law[1] makes it clear public libraries are permitted to make one digital copy and distribute it (lend it) once at a time on separate occasions. Subsection (g) outlines that distributing that one copy multiple times simultaneously forfeits the protections granted by this law.
The reason IA doesn't rely on § 108 is "When a user requests a copy of an entire work or a substantial part thereof, the library or archives must first make a reasonable effort to determine whether a copy can be obtained at a fair price. If it can, then no copy is allowed to be made." https://www.copyright.gov/policy/section108/discussion-docum...
What you're describing, "public libraries are permitted to make one digital copy and distribute it (lend it) once at a time on separate occasions," is what controlled digital lending refers to, and it would be cool if it was overtly authorized by statute, but it isn't -- the original CDL whitepaper ( https://controlleddigitallending.org/whitepaper/ ) relied on fair use instead. The trial court found that it fails that test, so unless IA wins on appeal, it doesn't exist.
Imagine a video rental service where you can go in, and they will play whatever movie you want on a DVD player in the back room. How long can that wire be between the DVD player and the person watching before it starts being copyright infringement?
Aereo was significantly different, because there was no copyrighted material being rented. They were renting out servers, and the servers made per-user recordings. Aereo got super screwed over too, because the supreme court said they were 'basically' a cable company, and then they weren't able to get cable company style mandatory licensing either.
I imagine it would be when you put a Y on the wire so that two people can watch from two different monitors.
of course this gets to the core of the problem: rights on paper are one thing, but they are easily taken away by a plaintiff with money. if you don't have the money to defend the right, you don't have the right (and in fact stand a good chance of getting the right taken away for everyone else too).
But, even after the Supreme Court said they were operating more like a cable company https://arstechnica.com/tech-policy/2014/06/supreme-court-pu... they were not allowed to actually operate like a cable company. https://arstechnica.com/tech-policy/2014/10/in-win-for-broad...
But as IA isn't to my knowledge doing controlled digital lending with broadcast television, is there any plausible argument they would be found to be a cable company?
Like this is a weird “that’s not true, weren’t they actually…” that recites all the same reasons I just said they were found to be infringing?
Let me put it this way: You should very much be able to rent a DVD from across the world and control it by wire, and the only limit we need to prevent abuse is how often that DVD can change hands, since micro-renting could cause legitimate problems.
Libraries are able to loan under the first sale doctrine, that is to say that the copyright holder exhausts their right to control the distribution of a copy after the first sale. However, they retain a monopoly on the production of copies.
For example, CDs are digital. To play a CD that you own, the player is going to create a copy of the song in memory in order to decode it into an analog signal that can be played on speakers. Then it's going to discard that temporary copy, leaving the CD as the only permanent one. It seems pretty obvious that either that sort of temporary copy doesn't count or that it should be fair use.
But then how is it any different if the temporary copy is on your tablet instead of your CD player?
I would also take issue with the "absolutely" of your assertion about OCR. For some things, yes, for crazy fonted works, no, but the devil's in the details