Hacker News Reader

Comment by ianburrell | Hacker News Reader

Traditional libraries lend out the physical copies they bought. For ebooks, they have an agreement with publisher to lend out a certain number of copies.

Owners are allowed to make digital copies for personal and archival use. They aren't allowed to transfer copies. The rights of digital ebook are in the license and most prohibit transfers. The rights of physical book are attached to the book.

Nobody notices or cares when done on personal scale. But publishers care when Internet Archive did it on large scale.

View on HN

As far as I know, IA owns the physical books they scanned, so why shouldn't they be allowed to lend them out 1-to-1 digitally the same as a physical library?

I thought the person you were responding too was saying that isn’t what physical libraries do.

Also, as far as I know that isn’t what physical libraries do. They buy licenses to share e-books. And don’t physically scan anything.

I meant that digitally lending the books out that IA owns 1-to-1 in the same way a real library lends out physical books should legally be treated the same, regardless of any ebook-specific licensing.

There was a ruling in Europe (UFC against Valve [1]) citing that, as neither e-book nor video-game deteriorate with use, the customer doesn't have a right to sell it on the second hand market as it would affect the copyright holder interest :

> To entrench its position, the CJEU first mentioned that dematerialized digital copies, unlike books on a material medium, do not deteriorate with use and are perfect substitutes for new copies.

> Furthermore, the CJEU added to its reasoning that exchanging such copies requires neither additional effort nor additional cost. A parallel second-hand market would likely affect the interest of the copyright holder – contrary to the objective of the directive and the intention of the EU legislator.

1 : https://www.lexology.com/library/detail.aspx?g=77bb2501-995c...

As I understand it, as soon as the IA makes the digital copy they want to lend (digitally or physically), they now have two copies of the book and have committed copyright infringement. As soon as they lend a copy, there are now three copies in existence (unless they delete their copy as part of the loan) which is another count of infringement.

If they had a system where every page of the original was burned as it was scanned, and when you "checked out" a book it literally deleted the original on the server as it was sending it and the person returning the book also transferred the bytes back it would be quite a show.

I'm about 95% sure a scheme like that would still find them shut down. Remember the Aereo decision? They went through similar contortions, including building an antenna farm with thousands of tiny individual antennas, and were immediately killed off by the courts because it was seen as a legal hack. Such a scheme might threaten cable TV income if it were allowed to stand. Protecting incumbents from competition is a vital role of the courts.

> a scheme like that would still find them shut down.

Indeed. Someone else in this thread mentioned [1] as doing exactly that.

> Protecting incumbents from competition is a vital role of the courts.

What's even more confusing is that the judges involved aren't paid off or anything, they really believe themselves. Not sure what that means: Money buys charisma; the status quo is 'the best we got'; or some other bias-carrying platitude.

[1] 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658

See also Peter Sunde (of Pirate Bay notoriety) and his “Kopimashin”: https://www.engadget.com/2015-12-21-peter-sunde-kopimashin.h...

Owning the physical book lets libraries lend out the physical books. Libraries can't lend out digital copies of physical books. They lend out digital copies that they have purchased.

Owning object is different that copyright. Copyright owner is only one that can license making copies. Owning a book gives no rights to make copies, with the exception of making personal copies.

It wouldn't matter if they scanned the books. As soon as it enters the digital realm the laws change. Doing it "on a computer" means the publisher owns the rights.

The decision covers that point:

"IA maintains that it delivers each Work “only to one already entitled to view [it]”―i.e., the one person who would be entitled to check out the physical copy of each Work. But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library. 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658 (“We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.”)."

This is really an issue that has to be fixed legislatively rather than in the courts.

In short, it sounds like the answer to the "why" question at the top of this thread (https://news.ycombinator.com/item?id=41447904) is: the scan is a derivative and copyright law lets you lend books, not derivative works thereof

Which seems like a nitpicky distinction to me when it's the same words on the same page and they're not shown to anyone else at the same time... but such is a judge's job as opposed to a legislator

No, because digital works aren't "sold", they're licensed. Even if the IA did the scanning themselves, the laws are written such that a scan isn't like a physical object. You can only own a revokeable license to view it and aren't allowed to do anything else. No transformative works. No transfer of the works. No fair use.

This is why local libraries are getting bled by their e-book subscriptions. They end up paying through the nose for people to check out e-books.

Reply on news.ycombinator.com