>Four major book publishers again thwarted the online repository’s defense that its one-to-one lending practices mirrored those of traditional libraries
How does it not? I don't get it... why are physical libraries in the clear if it's still a 1:1 borrow?
Because when the rules for electronic delivery were being written in congress and later legislated in the courts the publishers make damn sure to close the "library loophole" and that pesky "doctrine of first sale". The public didn't really have a seat at the table so the laws were written with a heavy deference towards the interests of the publishers. There wasn't a partisan divide either, lawmakers came together to perfect harmony to allow publishers to bend the public over and take them without lube. If you are a congressman the last people you want to anger are the ones who own the newspapers and TV stations.
This is just a bunch of fnords. 'Electronic' is not a magic word that changes what copyright protects. Copies are copies and IA distributed unlicensed copies and your local library does not distribute unlicensed copies.
Or if they do they are probably such rare books or records that there is no new commercial copies available. There is preservation of old and rare books. And then there is "preservation" of still in print with large number available.
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.
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?
"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
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.
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.
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
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.
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.
The first public libraries ever dates to at least the 4th century BCE, with one known instance begun by Clearchus in Heraclea, on what is now the Black Sea coast of Turkey.
TBH, I wasn't certain of that either, which was why I'd looked up the background. I'd be surprised if there weren't some common-law precedent or foundation cited in Straus, and should look that up.
Michael Geist might be a good source to look to for specifics of Canadian law, though AFAIU the Canadian royalties programme is defined under Public Lending Right:
Seems like most of this hinges of precedent. The courts have upheld that if you buy a book and loan out an audio recording of that book, it's not protected. Or something like that.
Well, physical lending and electronic lending are not directly comparable.
* It's challenging to copy physical items (you have to photocopy every page which few people do) and you can't do it verbatim (you can't make a 'clone' of the book, it will always be an inferior reproduction). It's more straightforward to remove DRM, and you then have a 1:1 unrestricted copy.
* Library books deteriorate with use and get lost, meaning there will always be the possibility for further revenue, particularly with popular items.
* Physical lending is not governed by software interlocks; software which may not be capable of being inspected or audited by the publisher.
How does it not? I don't get it... why are physical libraries in the clear if it's still a 1:1 borrow?