Authors Push Back Against Open Library Ebook Scheme

[jesse_the_k]

Last week I heard the Open Library’s announcement they were lifting limits on how many people can borrow from their extensive scanned book collection "for the duration". Today I was surprised and enlightened to read about opposition from authors.

Open Library/Internet Archive has operated their scanning on a "beg forgiveness, not ask permission" framework. In addition to the orphan works that may very well never have been digitized by publishers, Open Library has been capturing works currently available as ebooks. They’re happy to take it down if an author complains. Until very recently, they hosted JK Rowling as well as The Flight of the Heron.

Authors have been complaining! A lot! I’ve seen many individual SF writers as well as the SFWA and the Author’s Guild speak up.

NPR summarizes the arguments:
https://www.npr.org/2020/03/30/823797545/authors-publishers-condemn-the-national-emergency-library-as-piracy

From the National Writers Union:

The argument is that students need e-books while they are staying home. But that’s an argument for spending public funds to purchase or license those resources for public use — not putting the burden of providing educational materials for free on writers, illustrators, and photographers. Authors also need to eat and pay rent during this crisis.

Everyone is getting paid, except the writers, photographers, illustrators, and graphic artists who created the works that are being copied and distributed. The librarians are getting paid. The scanner operators are getting paid. The programmers are getting paid. The builders of the server farms are getting paid. The system administrators are getting paid. The authors, and only the authors, are getting nothing.

https://nwu.org/internet-archive-removes-controls-on-lending-of-bootleg-e-books/

The Copyright Clearance Center, which coordinates copyrights for everybody who cares to secure the legal permission when needed, has in fact organized scores of publishers who are willing to waive copyright restrictions to ensure that students and teachers have access to books while sheltering:

https://www.copyright.com/pardot-landing-page/education-continuity-license

Ars Technica goes deep into the legal weeds, with many links:

One of the closest analogies might be the music industry's lawsuit against ReDigi, an online service that let users "re-sell" digital music tracks they had purchased online. Copyright's first sale doctrine has long allowed people to resell books, CDs, and other copyrighted works on physical media. ReDigi argued that the same principle should apply to digital files. But the courts didn't buy it. In 2018, an appeals court held that transmitting a music file across the Internet creates a new copy of the work rather than merely transferring an existing file to its new owner. That meant the first sale doctrine didn't apply.

So it seems unlikely that the first sale doctrine would apply to book lending. Could digital book lending be allowed under fair use? ReDigi tried to make a fair use argument, but the appeals court rejected it. The court "said we won't use fair use to re-create first sale," Grimmelmann told me in a Thursday phone interview.

https://arstechnica.com/tech-policy/2020/03/internet-archive-offers-thousands-of-copyrighted-books-for-free-online/

(cross-posted from my journal)

Comments

[madfilkentist]

I've also seen quite a few complaints from authors that the "National Emergency Library" pays little attention to their rights. At first it looked a if the library had mostly out-of-copyright books, so I didn't recognize that as an issue.

[jesse_the_k]

I was shocked to learn they had Harry Potter -- while I appreciate their efforts to make texts available for print-impaired readers, there's already a robust U.S. infrastructure for this -- Bookshare.org. I'm getting wobbly vibes that they're using Marrakesh as a veil to advocate for fundamental copyright reforms.

I do want to hear about fundamental reforms that ensure creators get what's due.

[cesy]

Very interesting to compare those to the updated and clarified FAQs from the Internet Archive themselves.

[jesse_the_k]

Indeed. It seems clear to me that there's an underlying profound disagreement about the value of copyright, which yes, people can disagree. But the National Emergency Library framing seems disingenuous.

Do you know of a new, better copyright scheme that maintains (or improves) the value to creators?