Four years ago, on the old site, I wrote about how Archive.org’s OpenLibrary project was systematically violating the copyrights of a number of authors, including Diane Duane and Mercedes Lackey. Archive.org seemed to feel that making digital copies of paper books and loaning them out as if they were the paper books as long as it restricted the paper books from circulating while the digital media were out was a fair use of those books. Even though the Authors Guild had been absolutely gung-ho about chasing Google all the way to the Supreme Court just for serving up snippets, the Internet Archive checking out entire books was somehow beneath its notice.
After that, the strangest thing happened: nothing.
For four years, Archive.org has chugged right along digitizing books and setting them up for checkout, without the Authors Guild or anyone else saying one word about it. And while I will admit that, in at least one case, this let me find a long out-of-print book I’d been wanting to get my hands on, it’s still not exactly legal. (Or, at least, it hasn’t been shown to be. More on that later.) Even the X-COM novel that originally prompted me to make that discovery is still up and available.
. . . .
Authors Guild Executive Director Mary E. Rasenberger replied:
This is something we are actively following. We have had letter/email exchanges and conversations with the Internet Archive, and indeed offered to work with them on this project to assist in getting rights from authors of out of print books, but only if they would do it within the bounds of the copyright law. But it appears they are not. Some of what they are doing is arguably fair use under the Haiti Trust and Google Books decisions, but the notion of relying on the first sale doctrine and fair use to allow IA to provide a digital copy to any library that owns a hard copy of a book in their collections and then e-lend that digital copy is ludicrous. I believe they are relying on an argument made in an amicus brief the IA signed onto in the ReDigi case, which is not going to fly. Yes, fair use even today does have some limits.
Finally, a few days ago, mention of OpenLibrary’s putative copyright violations showed up, posted by authors I follow on Facebook—and as I learned from a reader email today, this is because the Authors Guild finally deigned to alert its members that OpenLibrary was scanning and checking out their books without permission.
Link to the rest at TeleRead