According to the Wall Street Journal, the Internet Archive and three partner libraries are launching new programs to enable “lending” of e-books. Find a book listed on Open Library and download it to your computer; the downloads come with DRM that expires after two weeks. The net result is a two-week “loan” of the digital copy.

Some of this is old(ish) hat. Open Library has already been helping readers find physical copies at libraries near them, via redirection to WorldCat’s directories. Overdrive already helps local libraries acquire the licenses and technology to “lend” e-books with the permission of the copyright holders. And the Internet Archive itself has been providing free downloads of scanned public-domain books for years.

The new twist is that, for the first time, the Internet Archive will apply the “lending” treatment to at least some books that are still in copyright. Here’s the WSJ’s summary:

And in a first, participants including the Boston Public Library and the Marine Biological Laboratory will also contribute scans of a few hundred older books that are still in copyright, but no longer sold commercially. …

The Internet Archive’s scanning effort hopes to extend digital libraries far beyond the sorts of contemporary e-books sold by Overdrive. The San Francisco-based library has been digitizing older books using 20 scanning centers around the world. Until now, those scans were mostly used to extend access to public domain works, or to give digital access to in-copyright books to the visually impaired.

“We’re trying to build an integrated digital lending library of anything that is available anywhere, where you can go and find not just information about books, but also find the books themselves and borrow them,” said Brewster Kahle, the founder and digital librarian of the Internet Archive.

With its latest project, the organization is making inroads into the idea of loaning in-copyright books to the masses. Only one person at a time will be allowed to check out a digital copy of an in-copyright book for two weeks. While on loan, the physical copy of the book won’t be loaned, due to copyright restrictions. …

Mr. Kahle said, “We’re just trying to do what libraries have always done.”

Having to receive prior permission from a copyright owner in order to scan a book is onerous, said Mr. Blake, of the Boston Library. “If you own a physical copy of something, you should be able to loan it out. We don’t think we’re going to be disturbing the market value of these items.”

This is an interesting development. The Internet Archive has been close-lipped about the precise legal basis for what they’re doing. At some of these in-copyright books are actually being loaned with permission, like Stewart Brand’s The Media Lab. Perhaps that’s the case with all 187, although the comments in the WSJ article would seem to suggest not. The Archive could be making a pragmatic risk analysis on a book-by-book basis, including only books for which it believes the chance of ever actually being sued is negligible, and thinks it can keep the number of mistakes small enough to avoid serious financial danger.

Or, most intriguingly, perhaps the Archive believes it could win a copyright lawsuit. First sale probably doesn’t work on existing precedents, since each electronic copy on a user’s computer counts as a new “copy” for copyright purposes. Neither do the library exceptions, which are narrow and quite technical. This new lending program is certainly consistent with the spirit of both provisions, and there’s a powerful argument that in a digital age, they ought to be amended to explicitly allow this kind of lending. But as written, they probably don’t authorize digital lending.

This leads me to think that the most natural argument would be fair use. The argument here would likely center on the Archive’s nonprofit purpose, the negligible harm to the market for some long-out-of-print books (quite possibly including some orphan works), and the nearby public policies of first sale and library exceptions. The natural counter-argument, however, is that distributing complete copies of books for readers to consume is so close to the core of copyright’s rights and goals that fair use simply cannot stretch that fair. These are non-transformative, substitutive, complete copies of expressive works—so while the Archive would have an argument, the fair use factors arguably tip 4-0 against it. Should it win, it would be a revolution in fair use caselaw. A good revolution, for some, but a revolution nonetheless.

I added a “GBS” tag to the title because the Archive’s actions have implications, both intellectual and practical, for the pending Google Books settlement. For one, should the Archive prove able (legally or in practice) to lend out these books, that would be a significant step in the orphan works debate—a demonstration that there’s more wiggle room under the Copyright Act than many have thought. For another, this confirms the Archive’s role as a kind of Google competitor. A non-profit one, to be sure—something that could place them on different litigation footing in a variety of ways—but still, the new lending program means that there are now two entities trying to make some kind of a play in the digital distribution of in-copyright books without individual permission from the copyright owner.

Ironically, the Archive’s gambit could help Google gain settlement approval. It was the Archive’s lawyer who made the strongest argument at the fairness hearing that the settlement’s core problem is that it works on an opt-out basis. I wouldn’t be shocked if Google brought up the Archive’s book-lending program at some point as a way of trying to discredit that argument. Also, by scanning books and distributing complete copies of them to the public, the Archive makes more credible the plaintiffs’ arguments that the Authors Guild case has always been about the complete books, not just indexing and snippets—which could undercut the objection that the settlement authorizes conduct not at issue in the underlying lawsuit.

As always, Gary Price at Resource Shelf has plenty of links with further details.

However, someone is bound to crack the encryption in short order, making “lending” these copyrighted books equivalent to giving them away. Furthermore, nothing in copyright law, as far as I know allows anyone to produce a new edition of a copyrighted book without permission, a scanned version being a new edition.

I’m seriously thinking of quitting writing and publishing entirely, as everyone sees my hard work and substantial financial investment as merely a gold mine to exploit, either for their own financial gain (Google) or the so-called public good (Internet Archive). Why ever should I bother to work at this when no one wants to pay me?

Also, I note no claim that any copyrighted books “lent” would even be so-called orphans—apparently, even the pretense that the owners cannot be located is being given up.

However, someone is bound to crack the encryption in short order, making “lending” these copyrighted books equivalent to giving them away.

Since they’re using Adobe Digital Editions, it’s likely that someone already has.

a hypothetical question; if uses such as the ‘books project’ are breaches of the law , wouldn’t the libraries be in the position of associates/beneficiaries of an illegal act?

If the Internet Archive is obtaining permission from someone (which isn’t clear), this program would present the same author-publisher problems as GBS.

Since these are described ads “older” books, I would guess that there was never any explicit assignment of electronic rights, and that those rights are retained by authors. So a key question is whether permission is being obtained (if at all) from authors or print publishers, and whether the Internet Archive is making any attempt to verify print publishers’ claims to hold the rights to electronic distribution of these works.

Brewster Kahle outlined his arguments for digital lending in 2001 in D-Lib: http://www.dlib.org/dlib/october01/kahle/10kahle.html

This is not library lending. It is creating a digital edition and then giving away an unbounded number of copies without paying the copyright holder, or holders, of the work. Anyone who claims digital editions can’t be eaily copied and distributed by anyone who gets them for “temporary” viewing is, well, probably lying. Fact is, libraries don’t seem to care if creators of works get paid. It is simply not their problem, and creating and copying digital editions saves them a lot of money on book purchases throughout a given library system. It was not suddenly legal for libraries to create and distribute free photocopies of entire books, and creating, copying, and distributing digital copies is no more legal. And it is entirely the right of the copyright holder—not the entity that wants to seize his or her work for free distribution—to declare whether a digital copy harms his or her future market for the work and to give or withhold permission for that distribution.

By the way, one of my questions is, what’s a “library”? In other words, does so-called “digital lending” enable one library in a large public or university system to buy one copy of the book, scan it, and make digital copies for all the other libraries in the system so they don’t have to buy it? If so, I see increasingly large library consortiums being formed so libraries have to buy hardly any books from publishers.

Currently there is no cultural bias in my local public library — anyone, rich or poor with a library card has equal access to library materials and to the inter-library loan services. Just as the economic gap between the rich and the poor is widening, are our societies building a “library” system that will widen the cultural gap between the rich and the poor? Will libraries continue to build their collections when a digital volume is available? A digital volume that needs an expensive machine to be read. The New York Public Library, The Toronto Public Library, The Library of Congress, and The University of Wisconsin-Madison all bought a copy of my book to add to their genealogical collections. If a central digital library had a copy would they still have bought my book to be available to all patrons of their libraries? Halifax is going to spend millions of dollars building a new central library, but why not just issue library cards from city hall and let people get their books on line? The entire library budget could be the subscription fees to online libraries. Why have library infrastructure when all of this material is available to the most influential people of our societies? As the owner of the copyrights to my books do I not have a say in establishing their digital worth? I set the price for the print edition why would I not be able to set the price for the digital editions, such as the ones that Google used for their searches?

Douglas Fevens, Halifax, Nova Scotia — The University of Wisconsin, Google, & Me

Do you think perhaps Internet Archive would qualify for the sort of DMCA safe harbor that worked for YouTube?

There is both less and more going on here than the WSJ article would suggest.

Having taken a fairly close look, I think that it is unlikely that the Internet Archive is infringing anyone’s copyrights through this scheme. (I am relieved, frankly, since I value the Internet Archive, use it quite often to access old, rare books, and would hate to see it enmired in litigation.)

Here is the Open Library’s account of this venture and here is what the Internet Archive has to say. Neither of them talk about making in-copyright books available without authorization.

It is less clear what the Boston Public Library is doing. I note that the most troubling statement in the WSJ article comes from the digital projects manager there, Thomas Blake:

Having to receive prior permission from a copyright owner in order to scan a book is onerous, said Mr. Blake, of the Boston Library. “If you own a physical copy of something, you should be able to loan it out. We don’t think we’re going to be disturbing the market value of these items.”

According to the Open Library, the books come from two sources. Most will be supplied by OverDrive, which is a company licensing e-books to libraries. To put things in perspective: OverDrive is supplying about 70,000 of the e-books being made available through this scheme. OverDrive, and how it is going to operate, is the urgent issue here for authors. I shall provide some information later, in a separate comment, since this one is already far too long.

Fewer than 200 books are being supplied directly by the Open Library. Of these, some will come from the Internet Archive, the rest from three libraries: Boston Public Library, the Marine Biological Laboratory (US) and the Biblioteca Ludwig von Mises at the Universidad Francisco Marroquin in Guatemala.

Here is an online database of the books available directly from the Open Library. It has an annoyingly fiddly graphic interface, and the programming apparently has bugs in it. This is what I have extracted so far.

The most recent book is Lawrence Lessig’s Remix: making art and commerce thrive in the hybrid economy (2008), supplied by the Internet Archive. It is currently ‘checked out’, but that is no handicap to anyone who wants it in a hurry, since all they have to do is fill in a simple form at the publisher’s website and they can download a pdf copy free of charge. I rather think the use of this book has been authorized by the author and publisher.

Most of the Internet Library’s other contributions seem to be out-of-date technical works, many published by Microsoft. Apparently the most recent of the Microsoft books is Van Wolverton’s Running MS-DOS, listed under 2003. But when you drill deeper, it turns out that the edition available as an e-book loan is the 1984 edition. Slap on the wrist for the Open Library. They shouldn’t do that. Nor should they list Digital systems: principles and applications by Ronald J. Tocci (Prentice Hall) under 2006, 2004, 1998, 1995, etc when the only edition available for borrowing as an e-book is the 1977 one; or the American Management Association’s Computer Glossary under 2000, 1998, and 1994 when it’s the 1995 edition that is being made available here. I think it is probably the result of a programming screw-up, but it gives a very misleading impression.

The most recent Microsoft books that are actually accessible here are Mobilize yourself!: the Microsoft guide to mobile technology and This Wired Home (on home networking) both published in 2002 and out of print from the publisher. Microsoft has been a good patron to the Internet Archive in the past. I am pretty sure Microsoft has authorized this arrangement. It is not losing anything financially, and it is gaining a little in gratitude from historians of technology and computing. I imagine that formal permission was also obtained from Prentice-Hall and the other technology publishers represented here.

Besides out-of-date computer/technology textbooks, what is the Internet Archive offering to lend us? Well, I have gone back to 1970, and only found three works that fall into other categories: Lessig’s Remix, Stewart Brand’s The Media Lab, mentioned in the WSJ article, and a book about teenage mothers, now out of print. Brand, we know from the WSJ, gave permission, and I’d be surprised if that were not also the case with the other two books.

The inclusion of Professor ‘Free Culture’ Lessig’s book is, of course, studied, and the same is true of Stewart Brand’s book. It was Brand who coined the phrase ‘Information wants to be free’ in 1984.

Most of the contributions from the Boston Public Library are works of genealogy/family history, and most if not all are private or micro-press publications. Has the Library obtained permission to digitize and circulate these books and pamphlets, or is it assuming that since these are apparently ‘non-commercial’ publications, the rights-owners won’t mind if they are digitized and distributed over the Web? Is that what Thomas Blake, their digital projects manager, was driving at when he told the WSJ ‘We don’t think we’re going to be disturbing the market value of these items’? I think they should make themselves clear.

Privacy and identity protection issues may arise in the case of some of these works, which provide genealogical details of persons still living, or likely to be still living. The most recent publication of this kind, privately published in 2007, contains an appendix of ‘Last known addresses’ and is accompanied with a DVD of family videos from the 40s and 50s.

From: Douglas Fevens Sent: Wednesday, June 30, 2010 9:51 PM To: Ask The Boston Public Library Subject: Digital Genealogical Works

ATT. Thomas Blake, the digital projects manager at the Boston Public Library.

Dear Mr. Blake,

I have just read the Wall Street Journal article “Libraries Have a Novel Idea”

It states:

“We know that our users are starting their search for information online,” said Thomas Blake, the digital projects manager at the Boston Public Library, which is contributing some in-copyright genealogical titles to the new effort. “Instead of sitting back and waiting for the people to come back into the library, we want to meet our users where they’re living.”

I am the author of a genealogical work (Fevens, a family history) that was digitized by the University of Wisconsin in partnership with Google in 2008. When I was researching the book I promised contributors of current family information that the electronic data base that I used would be destroyed after the book was published, and it was. You can imagine my dismay when I found that their personal information was searchable and displayed in “snippets” at Google Books. Some family researchers have expressed the opinion that this type of service is a great boon for genealogical research. That may be true in the short term, but in the longer term I feel that it is going to make research more difficult as more people become more sensitive about sharing personal information. As an example, you only have to look to the decline in the interest in discussion groups at Rootsweb. I hold the Boston Public Library in high regard because of the help to me in my ongoing research of my grandfather, Roy Durkee and his father, John Durkee who had a restaurant in Boston c.1910. I just wanted to share with you my experience with the unauthorized digitization of my work.

Gillian,

I have worked as an editor and co-author of computer books, which often serve readers as additional or substitute software manuals if the software corporation has published an inadequate manual or none at all. After the first edition, computer books are seldom written “from scratch.” The author simply recycles all the text and illustrations that are still valid and incorporates the new material. Software corporations often leave the basic features alone for many versions and just layer on new features, therefore much of the original book often remains valid. There are also people who continue to use “old” software for many years. (I am still using versions of Microsoft Windows and Office that are about seven years old, and am only now about to switch to a new computer running Windows 7.) Such users continue to buy old editions of books suitable for the software they are currently running.

What I am getting at is, computer books do not “date” as fast or as cleanly as you may think. I also do not think that anyone other than the copyright holder should decide whether an old computer book, a genealogy, or any other kind of book is valueless and therefore, that it will harm no one if the copyright is stolen. That is exactly the kind of thinking the distributors of so-called orphan works are doing.

Having gotten that off my chest, I fully agree that the actions of the libraries involved are worrisome, both the ones involved in this project, the ones involved in the Google project, and, well, I am worried about libraries in general. The temptation of saving an enormous amount of money by buying only one book and then making free copies of it for an entire library system—including systems newly put together for this purpose, such as the Hathi trust—seems to be much too strong for some libraries. Meanwhile, their PR about how their only concern is the “public good,” is misleading the public and encouraging those who know these copies will not be technologically protected with any degree of adequacy, therefore rendering practically every book ripe for free access by everyone.

The US library system was never intended to put publishers out of business or violate authors’ copyrights. I entirely fail to see that giving the public free digital editions benefits them any more than the interlibrary loan of print books. There is also easy non-library Internet access to purchase of most copyrighted books, both new and used.

In case I did not make this clear, I believe Microsoft is a book publisher as well as publishing straightforward manuals for their software. I do not know their contractual arrangements with their authors, but many computer book publishers pay on the normal advance-and-royalty basis rather than buying all rights. In that case, Microsoft could give permission to the Internet Archive and others to publish e-books, only if Microsoft’s contracts with those authors allow it.

I was not aware of the digital media distributor OverDrive until a few weeks ago, when Canadian writer Michael Elcock kindly sent me his article on free digital downloads from public libraries.

OverDrive, a US company, briefly mentioned in Michael’s article, is a major provider of e-books to libraries. Digital Library Reserve®, one of OverDrive’s services, is described on its website as ‘The leading download service for 9,000 public libraries worldwide’.

What Open Library have done is simply to integrate OverDrive’s offerings with their database. If you search for a book on Open Library you will be told if there is an e-book available from a local library; if you click on the link you will be taken to the record on OverDrive’s site; and if you click on a link there you will be invited to choose a country, and a region. Unless your own local public library has licensed that particular title, and that title is not out ‘on loan’, you cannot access it.

The Open Library blog sounds distinctly over-excited when it bills the service as ‘an ebook to you, anywhere in the world’.

The spin being put on all this in the interviews quoted in the WSJ is a lot more extreme than most of what appears to be happening. It is interesting to speculate why. (And why use a Murdoch organ with a paywall to break this particular story?) Of course, if the Boston Public Library really is offering to ‘loan’ books that it has digitized from its collections without permission from the rights-holders, it is dipping its toes in murky waters (and may find sharp teeth lurking in the depths).

The bigger picture here concerns the sort of library e-lending that is being facilitated by content aggregators. In the article I mentioned above, Michael Elcock raises a number of important concerns.

He found Canadian authors who had no idea their works were being offered as free e-loans from Canadian public libraries. With him, one must ask: how many authors have given contractual consent to this without realising what they were agreeing to? One must also raise the question of whether in every case publishers who strike deals with content aggregators actually possess a licence from the author for the necessary rights. I note the submission by the National Writers Union to the Intellectual Property Enforcement Coordinator in March:

The most frequent and damaging infringers of writers’ electronic rights are print publishers, who routinely publish or license “bootleg” electronic editions of works, when they don’t own the rights to reproduce or distribute those works in electronic form.

Then there is the question of how much of the money being paid out in licensing fees is finding its way back to the authors.

And what are the terms of the deals between the publishers and the content aggregators? What happens at the point when the rights revert to the author?

Michael found that the e-editions being loaned out by Canadian libraries were often US editions, even when the author was Canadian. On a very quick search I have already found one case of a UK public library offering e-loans of the US editions of books by a well-known UK author. It is possible this is an infringement; I would have expected that the original licence granted to the US publisher covered US distribution only.

Michael points out (as Frances does above) that there are huge questions over security - on a very quick search under ‘adobe drm’ I immediately stumbled across scripts that are claimed to break it. It would require some programming knowledge to use them, but plenty of people have that knowledge.

And finally there are questions over how far e-book ‘lending’ will reduce receipts from sales - including sales to libraries.

Frances,

I totally agree with you when you say ‘I … do not think that anyone other than the copyright holder should decide whether an old computer book, a genealogy, or any other kind of book is valueless and therefore, that it will harm no one if the copyright is stolen.’ I did not say anything in either of my comments that is incompatible with that view.

What I did say was that I strongly suspect that the Internet Archive has obtained permission for the books it is making available. I may be wrong about that.

Eric Hellman has also taken a close look at the books being offered directly through the Open Library. He comes to conclusions that are somewhat different from mine. (Incidentally, I am pretty sure he is wrong when he suggests that Alice James’s diary may be an ‘orphan work’. The edition being made available by Boston Public Library seems to be out of copyright.)

I think you have put your finger on an important point when you mention the anxiety of librarians to save money. Stewart Brand’s comment on libraries and librarians is mere mystification:

I figure libraries are one of the major pillars of civilization, and in almost every case what librarians want is what they should get.

Librarians are bureaucrats with targets to meet and budgets to balance. And rather few of them seem to have any understanding of the economics of authorship and book production.

They would do well to heed Michael Elcock’s warning:

If you are a librarian, you should remember that you hold the works of writers in trust, and that trust rests entirely upon concepts of fairness and balance to the writers as well as to the library’s members. … If the trust is abused then the libraries may have to consider one potential end game—which is that the lending library as we know it may well disappear. Libraries are only taking up valuable real estate after all. Who will need downtown libraries when the world’s intellectual works are available electronically in everyone’s home?

Eventually we may only need one library, not tens of thousands of them.

Gillian,

We are in agreement and I will add … no one seems to want to understand the questions of scale, yet scale has enormouns impact on publishers’ and authors’ incomes. If a publisher sells 400 copies of a book to libraries, and each library lends to 5 patrons, well, the publisher has still sold 400 copies, in ADDITION to all the direct-to-consumer sales.

If the publisher sells 5 copies, each to an aggregated library “system” that then scans the book and distributes it to hundreds of libraries in that system, each of which libraries “lends” it to 5 patrons with an easily crackable digital rights management (and there seems to be currently no other kind), and each of those readers who “borrowed” the book from the library gives an e-copy to a couple of friends, and each of those readers gives it to a couple of friends … good-bye most of the publishers’ profits and probably, good-bye most publishers and authors. Even assuming that no one along the chain uploads the book to a pirate site, and someone very well may.

And as for authors … perhaps many of them don’t make much money from their books, but it is not the business of others to determine they just won’t miss that income. Also, there is always the hope of making significant money, either from one bestseller or for those with more modest expectations, from royalties over a number of books kept in print and added to over the years. Anyone who argues that hardly any authors produce bestsellers and so almost no one can really be motivated to write a book by that hope, should ask themselves whether they personally have ever entered a sweepstakes, lottery, or raffle, or gambled in a casino.

As for “when the rights revert,” in fact e-books and print-on-demand together are making contractual reversions of rights uncommon. Making it even more urgent that authors know what is being done with their e-rights, and control such uses as much as possible, since they’ll never get a chance to find a new publisher who might market the same book more profitably.

Speaking of print-on-demand … with the Boston Public Libraries’ attitude coupled with the existence of POD machines, I expect libraries with this attitude to also argue that after all, letting patrons print out and bind an entire book at the library on a POD machine in the library is “lending” as well.

It is not just that librarians don’t know much about the economics of publishing, they don’t care. They feel they are in the business of giving knowledge away. It does not bother them a bit that it is someone else’s work they want to give away.

What the ‘aggregators’ do is sell books (or batches of thousands of books) to libraries for either single user access, or multiple user access. Increasingly, libraries are plumping for multiple user access.

Understand what this means. It means that the library buys a single book and can then lend it out to as many users as want to sign it out at any given time. Multiply this by the several thousand books that an ‘aggregator’ will sell in a batch to a library, then you get the picture. Why would anyone bother to buy a book? Just become a member of your local library.

The other point to make about Frances Grimble’s excellent observations, is that libraries here (in western Canada, where I live anyway - and it’s probably no different where you are) have formed mutually beneficial consortia among themselves. So it appears that only one library in the system may buy a book, and they will then distribute it to the other members of that library group. Ergo, one sale, with an absolutely minimal commission to the writer, and thousands of readers.

I know what I’m going to do in my next publishing contract. I will insist on excluding library use of any digital versions of the work.

All this isclose to the heart of the wider economic-social problem being created by what is in effect the destruction of copyright as an individual right.

Copyright is a pretty good way of paying individual ‘authors’ fairly for the transfer from private to public ownership of things that can be easily mass-copied. Logically , the out come of the direction these libraries are going in would be ; the asking sale price of a single copy of a book becoming equivalent to the total price currently paid for a thousand copies .

Copyright is a good way of arriving (over the term of copyright) at a appropriate price for things like books where the long term usefulness is , at first , very hard to tell.

The Tax-like transaction fee systems that some view as alternatives to copyright as a individual right, wont do.

Michael,

You cannot prevent libraries or aggregators from buying one copy of your e-book from any of the many wholesalers who sell to libraries and/or bookstores, or from retailers such as Amazon.com and many others.

I seriously doubt any publisher would allow you to contractually insist that no copies will be sold to wholesalers or retailers, because that is how they sell most of their books. And neither wholesalers nor retailers typically reveal exactly who their customers are for a copy of your book, so you can’t control that. I, as a publisher, have no idea who ultimately gets the copies of the vast majority of the books I sell.

If you really want control over your e-rights, do not allow an e-book to be legally produced at all. Don’t license e-rights to anyone and if you produce an e-book yourself, only do direct sales. Your book may still be pirated but at least you are not knowingly selling one e-book to an aggregator who may use that one copy to put you out of business.

I am increasingly wondering why I am bothering to write or produce books at all. If it’s only a question of amusement—that is, even the possibility of profit will be snacthed away—I can think of more interesting hobbies than I could pursue in my lifetime. Most of them cost much less time and money than writing or producing a book. They don’t provide endless freebies for the rest of the world, but why on earth should I devote any of my life to either the amusement or the edification of a piratical and parasitic public?

Michael,

Actually, now that I think of it, even if you only sell e-books direct to consumers you still cannot prevent those consumers from selling the book on the legitimate used market, as far as I know. Where a library or content aggregator could easily buy them.

Basically, e-books are, on a long-term basis, economically unviable for authors and quite possibly, also economically unviablefor publishers.

Frances I think that E-books have viable economic futures for some forms of publishing: ‘education/training manuals’, environmentally green building regulation codes, systems of classification of plants and animals (they are in flux because of our newish ability to examine the genome directly. In other words; Anything that needs constant, incremental, updating and thus the old copies fairly quickly become at least partially dated :- not so useful anymore.

I agree that the situation for authors of books that are not as prone to built in obsolescence is not so clear. People do not work hard long hours at skilled labor if they are repeatedly denied fair payment and some freedom to refuse employment. I agree that the current situation is looking like an anti-productivity / anti-innovation policy, for many authors.

There is an obvious economic need for Governments to clarify/update what is not a ‘fair use’ in the era of the web. Mutual Trust is the most important and most basic essential of all business.

There is a certain lovely logic to Brewster Kahle’s scheme. After all, a library may lend to a patron a copyrighted book that it has purchased. While the patron has the book, no other patron may read that book. Kahle’s scenario is to digitize that copyrighted book and lend it in an industry-standard protected format to a single reader. While that single reader has the book, no other user may read either a digital copy or the original physical volume. The market impact is exactly the same: one reader at a time. There is no reason why the copyright owner should care whether the patron is reading the book in print or electronic form, so long as only one person is reading it. It would be like having a copyright owner say that you can listen to a song on a cassette, but you couldn’t augment it by copying it to your MP3 player (even though you can only listen to one of them at a time).

I can also understand better the Internet Archive’s rabid hatred of the Google Book Settlement, even though the Google Books scanning project is one of the largest sources of material for the Internet Archive. The 187 books in the initial test project may have little market value. That would bolster Brewster’s fair use argument if legal action were ever brought. If the settlement were approved, however, these obscure and orphan works would suddenly have value again, and the fair use argument would be much harder for Kahle to make. Compensated access through Google Books to orphaned copyrighted works might make it impossible for IA to offer limited free access to the same works.

So long as Kahle sticks to orphan works and out-of-business publishers, it is unlikely that anyone with standing will come forward to challenge his activity. I would not have advised the Boston Public Library to jump on board with this, however. The risks associated with statutory damages are just too high and the fair use defense too weak. C.E. Petit may have said it best: “I really don’t think that just because Brewster Kahle thinks he should have a pony means that he deserves it… particularly not when getting his pony breaches the rights of others.” Nevertheless, you have to admire Kahle’s willingness to act as if copyright were rational and respectful of the interests of both authors and users, rather than what we have now.

Peter,

Except for the facts that:

There seems to be nothing to prevent a huge library consortium buying one copy and sharing it. Publishers already lose paying consumers selling to libraries doing extensive interlibrary loan, now they are likely to be in a situation where they sell only one copy.

There is nothing to prevent any user from cracking the file “protection” According to Gillian the Adobe protection has already been cracked. Any new protection soon will be—I saw several cracks for the Kindle protection posted on the net within a week after the hardware was first released. Note that it may take some technical skill to crack a protection but once a crack is posted, often anyone can use it. As the Science Fiction Writers of American pointed out in regard to the Google case, there are already some sophisticated, consumer-quality “ripping” applications for Google preview files and Amazon’s Search Inside, priced at about $25. It’s a, well, steal.

Those so-called “orphan works” are not necessary abandoned by any means, nor have all authors whose publishers have gone out of business given up on the idea of making money from the books published by those publishers. Note that plenty of authors and publishers came forward to challenge the proposed Google Settlement.

If, as Gillian thinks, the copyright holders (or publishers or authors who believe they are the copyright holders) gave the Internet Archive permission for their books to be scanned and distributed this way, I do not see how this can be any kind of legal test case. I am not a lawyer, but I believe that someone needs a reasonable claim that their copyright was violated to sue. It is true that publishers may have given the Internet Archive permission to use e-works to which those publishers do not contractually own e-rights, but if so it may be those publishers who get sued, rather than the Internet Archive.

John,

There is a difference between e-books being useful (for example, for frequently updated publications), and being economically viable. If copying means the updated editions are circulated but not paid for, then those e-books will not be economically viable, any more than a novel that is never updated.

I, by the way, have considerable experience in a field that used to be economically viable and which was, essentially, pushed aside by other media. I spent over 20 years as a dancer and, in the later years of that, as a dance teacher. If you think writing makes very little money, at the cost of a great deal of hard work and also, considerable expense, well, dance makes it look good in comparison. Almost no one actually makes a living off it except a few academics teaching at universities. Even most dancers in major companies like the San Francisco Ballet, either have other jobs whose hours they have to work around the substantial demands of dance, or often, are women who are supported by their husbands. When the season ends they collect unemployment from the state till the next season.

Interestingly, dance declined as a hobby along with declining as a paying profession, because many performers were supplementing their livings by teaching. When people ceased to be interested in dance as a social skill or a hobby, teachers found much less work.

I’m sure everyone can point out a ballet company in the major city they live in, and they may have a friend or two who does some ballroom dance or folk dance. But gone are the days when everyone had to have a minimal level of skill at the fox trot and waltz for use at friends’ parties, and when little girls with no professional aspirations in dance often went to little ballet studios for several years to learn basic ballet, as a form of exercise and training in physical grace considered suitable for females. Basically, dance is an art form that did not exactly die, but became very minor and marginalized after 1960 or so.

My experience as a teacher of beginning adults was that most of them have no clue how much more work it is to dance than be in the audience. They are astonished that so much work is required to make movements look easy (and most of them drop out, of any adult class no matter who the teacher is). And, that’s exactly the attitude I see the general public take toward writing. They think no work is involved and if they don’t pay, most writers will do it just for fun. In fact, writing is no more fun and no less work than any other profession, and writers who feel they earn too little already (which is most of them) have very little incentive to do it for free. Writing is no more fun than any other hobby, and it takes a great deal of perseverance to see a book through to the end. (My last book required considerable research and translations from French to English, and it took me seven years.) Most writers are intelligent and educated people who, if they’re going to have a hobby rather than a profession, can think of plenty of other enjoyable things to do instead.

The sad fact is, if writing largely dies as a profession, and most of what is produced is aimless blogs, Twitter drivel, and unreliable group “encyclopedias,” perhaps no one will care. Having seen how little the general public understands dance or cares that they, personally, cannot do any form of it whatever, however easy, it is not at all unlikely that writing could also become a largely dead art.

Here are the “facts”:

1. The bulk of the books being made available for loan by IA are with the permission of the presumed copyright owner. There are some (187 for now) that are being made available digitally without permission via a mechanism that has the same impact as interlibrary loan (if not the legal basis for the latter).
2. Libraries sometimes purchase one physical copy to be shared among them. This is known as “cooperative collection development.” They do not share digital resources that they have purchased unless the license explicitly permits this. Some journals allow for licensing across multiple campuses (albeit at a higher subscription price), but I know of no monographic publisher that is allowing this to occur (though there are lots of discussions about it). As with GBS itself, it is important to look at what has actually been proposed, rather than what bad actors might do in the future (and who will then be punished for their actions).
3. In a world of DIY book scanners and Japanese scanners that can scan 200 pages in one minute, worrying about the IA as being a potential source of pirated scans is a waste of time. If commercial publishers are willing to let their content be made available by the IA with existing DRM protections, the danger to the most obscure books that are being made available in spite of their copyrighted status is trivial. There are lots of ways for bad actors to get content without having to hack the Adobe Digital format.
4. As I tried to make clear, I agree with James Grimmelmann that there there seems to be little legal basis for what the IA is doing. But unless they start lending books owned by an author or publisher who objects, there is no one to bring legal action. And if no one objects, then making material as easily available as possible has lots of benefits.

Peter,

I could care less about public benefits. I’ve come to see the public as a bunch of whining parasites who expect me to work 24/7 for them for free, even though many of them earn more than I do. As far as I’m concerned, they pay or I don’t bother.

Peter,

I should add, that I am continually puzzled by the general attitude that writers should be swayed by the idea of their works (or so-called orphan works they have inherited) being distributed at little or no pay to them for the “public benefit.” The so-called “revolution” is all about money—who gets to grab whatever there is to make from books, and other creative works, whether these are out of print or not. It’s a question of whether the libraries make and/or save it, whether entities such as Google make/and/or save it, and whether publishers can profit by seizing rights for their authors. It’s just a huge land grab. Everyone who is grabbing asserts “public benefit,” and makes misleading statements about “orphan” works whose owners they have not even tried to locate, “unavailablity” of works just because they are out of print (news flash: there are libraries lending print books and a used book market), and “unaffordability” of works they do not wish to pay for.

Why on earth are writers (and other creators of works) supposed to be either so much more altruistic, or so much more stupid, as to believe that everyone trying to profit at their expense is acting for the “public benefit” so they should meekly give their rights away? None of these parties acting for the “public good” are offering to pay for my living expenses or the expenses I incur creating those works.

“Public benefit” just means other people are profiting financially from my work, or expect to do so, without fairly compensating me. Why on earth should I foster that? Why allow myself to be exploited? Are all those readers, Google, employees, librarians, etc. working for free or living on air? I don’t think so.

And Frances, who is paying you to post repeatedly to this blog? In the US,if you are being sponsored by an outside group, it is considered good form to report the source of your support (and sometimes it is legally required).

From now on, I will assume you will only post when you are paid.

Sorry, I meant “whether publishers can profit by seizing rights FROM their authors.” I do not proof or edit my internet posts. I discovered long ago that producing professional-quality work for no pay merely detracts from the time I need to spend producing it for pay.

Peter,

I am posting for my own financial benefit even if for no direct pay. I’ve spent a great deal of time persuading writers to withdraw from the proposed Google Settlement, urging them not to become Google Partners and not to list their e-files there, pointing out the dangers of Amazon’s Search Inside, notifying writers and publishers where their works are being pirated on the net every time I run across such works, responding to published articles on copyright such as the one in the Wall Street Journal referenced above, and so on.

I’m not nearly as accomplished a political activist as Gillian, of whom I stand in awe. Nonetheless, I have persuaded and notified a fair number of people (considering that I am only one person) regarding their copyright issues. This benefits them and many of them thank me, but that is not ultimately why I do it. I do it to attempt to keep my profession alive as a real, paying, profession so that I can continue to work in it.

Peter,

Let’s set aside the potential intentions of the Internet Archive (who has not even said they do not have permission to distribute these books) and talk about the e-publishing climate in general.

I believe that it is absurd for copyright owners to “wait and see what happens.” Google, for example, has showed itself consistently to be entirely willing to violate hundreds of thousands of copyrights, even after a suit was filed. I don’t believe for a New York minute that Google is not continuing to scan more copyrighted book books. Or that Google will ever honor the provisions of a proposed Settlement that removes all power of writers to sue if Google violates the terms of that proposed Settlement.

When “cracks” for every e-book DRM currently used are widely available and posted on the net, I don’t believe that readers will not use them. Especially since all the Google and library PR about “everything should be free” and “public benefit” makes readers feel they are morally entitled to pirate.

Yes, someone in China or next door could scan all my books entire and upload them to the net tomorrow. I do not believe this is any excuse from my trying to prevent piracy on the part of other parties. Especially any piracy I know is already occurring.

What I see is Google, numerous libraries, and other parties petting, soothing, and reassuring copyright holders, urging them to wait and see, and everything will work out, and even if most of their sales disappear, surely in the new “revolutionary” climate writers can—and are even OBLIGATED to—find some other way of making money than from book sales. (Actually, most writers who can realistically make money off some sideline such as speaking tours or consulting are already doing it. But most need the income from their books as well, and well-paying sidelines are simply not viable for most books and authors.) Meanwhile, these entities are cynically exploiting an enormous number of copyrighted works for their own financial gain.

Sorry, I’m not going to see my copyrights become effectively void through widespread distribution, while I “wait and see,” soothed and petted by vague PR promises. My entire profession may be nullified within the next decade. I think it quite likely. But I personally am not going down without a fight. I am not trusting the oh-so-wise heads illegally scanning and selling my works to be acting in my benefit. I may have been foolish to become a writer instead of a lawyer, a doctor, or some other profession people feel deserves actual pay. But I’m not foolish enough to just sit back and let everyone else do what they want with my work for their own gain, and trust it all to come out for the best.

Whilst it is perfectly true that anybody could spend their days gathering together thousands of books and then scanning them and then uploading them to the web, most don’t . Most of the scanning is actually being done in libraries; The perfect place to scan thousands of books all at the same time.

The advent of things like the web and google has connected librarians with the commercial ‘for profit’ world. The web is connecting together ‘worlds’ : contextual systems of meanings, that were previously clearly separated. The results are often both chimerical and paradoxical. ‘Fair use’ in a not for profit library is not the same as ‘fair use’ in the commercial market place. And thus: fair use ≠ ‘fair use’.

As a way of encouraging hard work and innovation the current direction of copyright is not good public policy. Thus it is not ultimately a legal issue. It is an issue for legitimate elected governments to deal with.

John,

As a concerted effort such scanning takes big money, both to scan those hundreds of thousands of books, and then to fight the resulting lawsuits regarding any copyright violations. Therefore anyone investing that much expects to make big money or at least, to save big money. Not an amateur pirate, in other words. I believe that once all these e-books with crackable DRM are out there, the effects of copyright will be virtually nullified by so many readers just giving a few copies to friends. It will be just to hard for copyright holders to constantly chase such piracy and too expensive to sue all those pirates. But it will likely take a massive copyright-violation effort such as Google’s, or a massive publication effort such as that of a publisher who controls the e-rights and doesn’t care if the copyright is virtually nullified within a few years, to get those hundreds of thousands of copyrighted books available in the first place.

As for governments, it’s already a violation of US copyright law to create e-books without holding the proper rights. It’s already a violation of contract law for publishers to create such books without having contractually gained e-rights from their authors. It’s just that, I don’t know how Australian civil law works, but in the US it’s an adversarial system. Someone can violate your rights, wait for you to sue, and if they have more money than you do they are likely to win. Bye-bye your rights.

Frances

The people who are organising and actually pulling the books, off the actual shelves and then scanning them are not Google.

It is being done by quasi-public institutions many of which I would guess ,going on their Australian equivalents, enjoy publicly granted ‘not for profit, tax-free status’ as well as ‘tax-deductible gift recipient status’.

The libraries are running a risk of their collections being viewed as trading stock or tools of trade. Similar things have actually happened to public Museums in the US that attempted to fund recurrent costs by selling parts of their collections. They lost their status.

Australia of course has its fair share of people who are a bit shifty and of corporations trying on things like; well funded vexatious litigation… But Libraries?.. ‘come on , pull the other-one, its got bells on it’.

The proper functioning of Copyright is very important to the whole economy. The lawless anarchy and ‘grab what you can’ that you describe is not in the longer run, good for any business. I would be surprised if the directors & major share holders of Google or the Directors of Libraries would welcome a extension of a similarly nonchalant treatment applying directly to their own individual economic rights.

The Art Newspaper, No.213 May 2010, p.24

“Risks of deaccessioning”

Museums in the US regularly trade up by selling lesser works of art to buy better ones. But art sales to pay for operating expenses are banned by Museum Association guidelines. A few recent deaccessioning decisions that would have let museums do just that could imperil the wider museum community, in the critical but overlooked area of accounting, warned Stephen Urice, an associate professor at the University of Miami law school. The preferential accounting treatment rules could be ‘jeopardisted’ if such practices continue, he said. In 1990, the US Financial Accounting Standards Board (FASB), which sets standards for prepared financial statements, proposed new accounting rules for museums. The regime would have required museums to include the appraised value of their collections as a capital asset on their balance sheets. Museums would also have had to treat the value of art donations as income.

The American Association of Museums strenuously fought the proposal, saying it would be too costly to comply with, would overstate a museum’s assets available for capital and operating expenses, and could mask a museum’s financial difficulties. In response, the FASB scrapped the proposal but imposed certain requirements. To be able to exclude the value of art donations from income, a museum’s collections must not be held for financial gain, and must be subject to a policy that sales proceeds will be used only to buy other works. Recent deaccession decisions ‘create a risk that FASB will reconsider’ its preferential treatment of museums, Urice said, and the museum community must therefore strictly enforce deaccessioning standards. ‘The recession is not a time’ for museums to take on ‘a new lobbying effort’ against a change in accounting rule, he warned delegates. [my italics]

In Australia libraries have a special status (and exemption from many market forces) because they are promoters of books and reading for education, self improvement ;for public improvement. They do not have a mandate to make the economic struggle of authors even harder than it already is.

PS. just love “‘jeopardisted’”

John,

Setting museums aside, I get it about the libraries. I think someone should directly sue all the libraries who lent copyrighted books to Google.

Medina and Damascus were heavily fortified , the railway line connecting them was not. Lawrence understood that just taking out any small part of its long and impossible to totally defend length = train crash.

The Boston Public Library made the front page of the Boston Globe on June 22, 2010: Library closings temporarily averted

Douglas Fevens, Halifax, Nova Scotia — The University of Wisconsin, Google, & Me

Douglas re: library closings temporarily averted. The problems of small regional cultural/art/library centres and the relative decline in recurrent funding for these institutions is a very familiar one. The pressure from mayors, bean counters and their ilk upon these not-for-profit, public good, institutions to become commercially viable is acutely real. I suspect that much of the real pressure behind the GBS is as banal as a town clerk trying to balance the books and reduce expenditures by as little as $500,000.

The issue of museums and other public collections trying to turn their collections into a money-earning proposition is directly familiar to us in Australia. The issues raised in the article I posted about American museums also apply in Australia.

It is funny that the Boston Public Library never announced this service on their web site. (Database News)

Douglas Fevens, Halifax, Nova Scotia—The University of Wisconsin, Google, & Me

Books Aren’t Crucial, but Long-Form Texts Are By Diane Wachtell; The Chronicle of Higher Education; September 26, 2010

I thought this article touched on a lot of the above comments.

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me

Another digitization initiative coming out of Massachusetts, is the call by Robert Darnton, of Harvard University for the creation of an American national digital library. I first heard of it in the Chronicle of Higher Education: One Step Closer to a National Digital Library and National Digital Library Spurs Conversation About ‘Cultural Patrimony’

Tony Simpson, President of the New Zealand Society of Authors has wrote a letter to the editor for The New York Review of Books: Toward ‘the Digital Public Library of America’: An Exchange

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me

Frances Grimble:

I believe that once all these e-books with crackable DRM are out there, the effects of copyright will be virtually nullified by so many readers just giving a few copies to friends

Er, Frances, you are familiar with the history of such declarations in the US? For example, Jack Valenti’s famous

‘I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.’

You might want to inspect the Wikipedia article on “Home Taping is Killing Music”. (You might find the sewing-based parody of it especially amusing.) Music, somehow, didn’t die after the 1980’s. And, no matter what RIAA claims to the contrary, it isn’t dying now.

In regards to the “national digital library” mentioned above, some may find this item from the Lab’s archives to be of interest: GBS: An NYRB Exchange with Darnton

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me.

How Google Can Save America’s Books, Robert Darnton, The New York Review of Books. More on an American, national digital library.

Congress would have to pass legislation to protect the DPLA (Digital Public Library of America) from litigation concerning copyrighted, out-of-print books.

It seems Mr. Darnton was telling the truth when he told Tony Simpson, President of the New Zealand Society of Authors,

Nonetheless, I can assure Tony Simpson that the National Digital Library I propose would not violate copyright.

The University of Wisconsin makes the same claim about their and Google’s digitization partnership.

• “Google has designed the project to comply with copyright laws.”
• “The Libraries will not violate copyright laws. This includes taking every effort to not violate the rights of content owners to control the distribution and use of works under copyright.”

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me