Internet Archive in a Court Case over Fair Use

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annise
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Post by annise »

The part of IA that is being argued is a very small part of it, nothing to do with us or the majority of what they do
It is this
https://openlibrary.org/

Anne
msfry
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Post by msfry »

The Internet has changed the whole concept of libraries buying physical copies and lending them out. That never has cut into the paying marketplace very much because they only had access to a few copies and people had to physically visit the library to get them. How well I remember the days, and the late fees!

IA's Open Library does a brisk business, lending out 461,000 digital books in the last 28 days.

Whatever the convenience aspect now, I am on the side of authors and publishers being protected and paid for their labors, whether in hard copies or ebooks. It is naïve to think their income won't be adversely affected by digital copies of copyright material being available 24/7, for free, whomever offers them, under CDL or whatever other license.

https://www.authorsalliance.org/2020/07/29/internet-archive-defends-library-digitize-and-lend-model/
TriciaG
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Post by TriciaG »

My understanding is that IA doesn't lend out books they don't physically have. I could be wrong about that, but I don't think so. They obtain the book, scan it, then lend out the scan one patron at a time (like a library lends out the physical book).

The contention of the publishers is that they aren't allowed to scan the book in the first place. Instead, they make libraries purchase time-limited licenses to lend out books - if they're even digitized. So the library has to pay, say, $100/year to lend out a book, and when that license expires, they can't lend it anymore. Whereas IA is lending out their own scan (one per physical book).

Someone may correct me if I'm wrong.
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annise
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Post by annise »

I wasn't arguing about the rights and wrongs of the Archive approach, just that it wasn't affecting us. I agree authors deserve recompense and I'm not a lawyer.

Anne
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Post by redrun »

That's right for what they're doing now - they call it Controlled Digital Lending, for precisely the reason that they only "lend" as many digital copies out at any time as they own physical books.

For a while during lockdowns, they did what I think was called the Emergency Library, where they did away with those limits for a while. I'd say the publishers have a good argument against that, even though they did make record profits at the same time.

Controlled Digital Lending really is a tough call - if you OWN a physical book, you can lend it to someone else, or give it away for free. That arguably harms the market, but it IS your book, so you can do anything but make more of it for distribution.

Technically, any lending of an ebook is making more of it. But in practice, now that they're not doing the Emergency Library, they're lending the same book just in a different form. This judge seems to say it all comes down to that technicality. But free use is a principle that has already overridden technicalities. It's a balance of concerns, which I think has been overlooked.
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Post by lightcrystal »

Surely Google Books is far worse; when I did my first DPL it was a book about Puerto Rico. It was on Google Books. I could not download it in my "region". The MC had to give me her email and attach a copy. I got it anyway.
At least IA is a good faith actor trying to bring knowledge to more people; Google is a dark forces operator trying to put even public domain books behind a restriction.
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Post by annise »

Google blocks us because it is easier/cheaper than trying to sort out the rules. And it is annoying. But this is an open forum, and we stick to copyright rules, like Ceasar's Wife :D

Anne
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Post by msfry »

annise wrote: March 27th, 2023, 8:10 pm Google blocks us because . . .

Anne
Switch to Bing, or Brave. Anything but Google. I have done identical searches on all 3 and all bring up similar but not identical URL's. But Google has overplayed its hand, IMHO, so has lost my support.
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Post by redrun »

msfry wrote: March 27th, 2023, 8:33 pm
annise wrote: March 27th, 2023, 8:10 pm Google blocks us because . . .

Anne
Switch to Bing, or Brave. Anything but Google.
The earlier comment was about Google Books blocking international folks from accessing PD works that they host... presumably because it costs more to find out if they're PD in every country than to just block donwloads outside the US.

I agree Google Search's quality has gone downhill, though.
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Post by msfry »

redrun wrote: March 27th, 2023, 8:45 pm
msfry wrote: March 27th, 2023, 8:33 pm
annise wrote: March 27th, 2023, 8:10 pm Google blocks us because . . .

Anne
Switch to Bing, or Brave. Anything but Google.
The earlier comment was about Google Books blocking international folks from accessing PD works that they host... presumably because it costs more to find out if they're PD in every country than to just block donwloads outside the US.

I agree Google Search's quality has gone downhill, though.
Ah, Google Books . . . one more thing I know almost nothing about, but it doesn't surprise me they have their hand in that too.
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Post by czandra »

Google books, according to one report about the hearing that I read, can lend because they comply with "Fair Use", which involves "transforming" the book in some way.

Libraries pay to lend books: I remember when that became law in the 1990's. That's so authors can get some scrapings of royalties (literally pennies, but we also find out that our books go out, so that's cheering).

Colophons used to carry the rejoinder "not to be borrowed or loaned or resold" along with "not to be copied without publisher's permission". If the book doesn't carry that inside it, then the case is open.

Then there's the argument about saving forests and forests of trees by digitizing. I like the point about disabled people accessing books. That includes children without their own means of transport. As a child I once cheated by stamping my own date in the back of my book (on Plato, at age 10! What was I thinking??) because it was overdue and I could not get to the library and my whole allowance that week was 1/2 the 10 cent fee.... True stories. I love you LV.

Czandra
I asked my librarian about the noise, and she said, "no one would come here
if they weren't allowed to talk out loud." So I read out loud.

Je lis à haute voix car refléchir fait trop de bruit!
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Post by redrun »

czandra wrote: March 28th, 2023, 4:42 am Google books, according to one report about the hearing that I read, can lend because they comply with "Fair Use", which involves "transforming" the book in some way.

Libraries pay to lend books: I remember when that became law in the 1990's. That's so authors can get some scrapings of royalties (literally pennies, but we also find out that our books go out, so that's cheering).

Colophons used to carry the rejoinder "not to be borrowed or loaned or resold" along with "not to be copied without publisher's permission". If the book doesn't carry that inside it, then the case is open.
That may be the law and the fact in Canada, but it's not so for physical books in the US. Our libraries pay to get a copy of the book (or they have one donated from someone else who paid), but there are no ongoing royalties. The publisher is free to put "do not lend" wherever they want, but because the library owns the book, under US law they have the right to lend it, regardless of any claims of market harm by the publisher. The book is an object, and has been sold. It now belongs to someone else, and the original owner has no right to stop them from lending or giving it away. Only from making more copies, and only when that does not get a pass under a balanced assessment against Fair Use principles.

I assume Canada has a mediator for these royalty fees as well, or someone to set the price. In this case, publishers are looking not only to set the price unilaterally, but to force additional terms in a non-negotiable contract.

This is why the ebook market the publishers want to force IA into is unusual. If a library owns a copy of a book, they can lend it, but publishers want to temporarily license the right to make additional copies, and to force libraries not to do other things they can normally do with stuff they own, by making that a condition of the contract.
There's only a very limited notion of "ownership" of an ebook in this case because in order to do... well, anything at all with it, it has to be copied. Computers make copies of everything in a different format, as a routine part of just showing it on your screen. Obviously, doing so on your own computer for your own use is Fair Use, whether transformative or not. You own it, you can use it, and that includes making copies when that's a technical necessity. Often, there have to be several copies of the work, in several different stages as you read it on your computer.
The same should be said for lending - if you own it, you can lend it, and that includes making copies (even in a different format) for lending, so long as you aren't lending more than you own.

It's also not the whole story that "Free Use" is required to transform the work in some way. In US law, that's called Transformative Use, and it's understood to be one of several principles that fall under the umbrella term "Free Use".
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Post by czandra »

redrun wrote: March 28th, 2023, 5:25 am
czandra wrote: March 28th, 2023, 4:42 am

Libraries pay to lend books: I remember when that became law in the 1990's. That's so authors can get some scrapings of royalties.

Colophons used to carry the rejoinder "not to be borrowed or loaned or resold" along with "not to be copied without publisher's permission". If the book doesn't carry that inside it, then the case is open.
That may be the law and the fact in Canada, but it's not so for physical books in the US. Our libraries pay to get a copy of the book (or they have one donated from someone else who paid), but there are no ongoing royalties. The publisher is free to put "do not lend" wherever they want, but because the library owns the book, under US law they have the right to lend it, regardless of any claims of market harm by the publisher. The book is an object, and has been sold.

I assume Canada has a mediator for these royalty fees
Wow, I did not know this. Yes, in Canada, copyright and intellectual property are under federal law, and there is international law to govern it as well. Here, when the physical object book is owned by someone, the copyright (the intellectual property, referred to here by some as "knowledge") remains with the author or publisher according to the contract between author and publisher. Ownership of the physical book does not give anyone the right to give away the information etc. therein, except verbally, or if say, in teaching, using copies of less than 20% of the book, and that only with royalties attached. The note in the colophon is a non-negotiable contract indeed, which the owner agrees to by buying the book (giving consideration for it), and which most of us have for generations ignored by lending, giving, photocopying, etc.. In Canada, at least, the laws of copyright are an abject mess, and of course the internet has made it worse. I think it will never get sorted to everyone's satisfaction.

There are mediators whose responsibility it is to collect royalties and enforce them. In Quebec it's Copibec.

We may well go back to a time when authors write simply because they could not help themselves, and not from any expectation of laurels or making a living. Garret room, here we come! :D But it won't be the fault of Librivox.

Cz
I asked my librarian about the noise, and she said, "no one would come here
if they weren't allowed to talk out loud." So I read out loud.

Je lis à haute voix car refléchir fait trop de bruit!
annise
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Post by annise »

and which most of us have for generations ignored by lending, giving, photocopying, etc.
Not to mention second-hand book shops, charity shops, book exchanges .........etc. which are probably legal.
It is difficult to be fair to everyone
And what about Van Gogh - never sold a painting in his life and they now sell for millions.

Anne

Internet is appealing for donations - see heading on all their pages if people wish to help the fight.
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Post by czandra »

annise wrote: March 28th, 2023, 4:57 pm
and which most of us have for generations ignored by lending, giving, photocopying, etc.
Not to mention second-hand book shops, charity shops, book exchanges .........etc. which are probably legal.

Internet is appealing for donations - see heading on all their pages if people wish to help the fight.
Impossible de contrôler les idées!

Cz
I asked my librarian about the noise, and she said, "no one would come here
if they weren't allowed to talk out loud." So I read out loud.

Je lis à haute voix car refléchir fait trop de bruit!
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