Home » Copyright/Intellectual Property, Non-US » Authors Guild and Society of Authors Allege Copyright Infringement by the Internet Archive

Authors Guild and Society of Authors Allege Copyright Infringement by the Internet Archive

18 January 2019

From Publishing Perspectives:

In the same kind of solidarity they showed in calling for author contract reform from publishers, the United States’ Authors Guild and the United Kingdom’s Society of Authors are making simultaneous demands that the Internet Archive’s Open Library immediately stop lending scanned copies of physical books on their site.

Today (January 18), the Society of Authors in London has issued a media alert to its cease-and-desist open letter to the Internet Archive, and—as in previous instances in which the English-language world’s two largest author trade organizations have teamed up—the eloquence inherent in writers’ work is quickly apparent in how they’re putting across their message.

. . . .

“‘Controlled Digital Lending’ or ‘CDL’ is a recently invented legal theory that allows libraries to justify the scanning (or obtaining of scans) of print books and e-lending those digital copies to users without obtaining authorization from the copyright owners.

“A position statement on CDL, along with an accompanying white paper, was issued this past October by legal scholars, the culmination of several academic meetings on the subject.

“The statement and paper argue that it is fair use for libraries to scan or obtain scans of physical books that they own and loan those books through e-lending technologies, provided they apply certain restrictions akin to physical library loans, such as lending only one copy (either the digital copy or the physical copy) at a time and only for a defined loan period.”

As the Guild goes on to note, the Internet Archive is not the only organization to sign the CDL position statement. Library systems including the massive California State University libraries and the Boston and San Francisco public libraries, the Guild reports, “are signatories and apparently already rely on CDL to e-lend scanned copies of books.”

. . . .

What triggered the guild’s initial January 8 commentary on the matter, as its staffers write, is that the organization has seen the Internet Archive’s Open Library “start rejecting notices sent by guild members asking for unauthorized digital copies of their books to be taken down, citing that it ‘operates consistently with the Controlled Digital Lending protocol.” The guild challenges the archive in two ways:

“First, although Internet Archive managed to convince the State of California that it is a ‘library,’ as a Web site open to the whole world, it is not a library with a defined user base in any traditional sense.

“Second, copyright law does not support the practice of even true, traditional libraries offering unauthorized scans of books to its users on an e-lending basis, despite the patina of legality in the white paper.”

. . . .

The Society of Authors’ treatment of the case is laid out further this way, introducing the challenging element of the Internet’s borderless reality:

“Whatever arguments you choose to put forward in the US, you must be aware that the US fair use doctrine does not apply in the UK where all scanning and lending must be authorized by the copyright owner.

“There is no legal basis for the practice of scanning books without permission or lending them in the UK. Despite this, users in the UK are currently able to borrow scanned copies of physical books from Open Library. That is a direct and actionable infringement of copyright.

“The Internet Archive claims that Open Library is ‘honoring the rights of creators.’ However, the practice of Controlled Digital Lending does nothing of the sort. Authors are not asked for permission before their work appears on Open Library, and they do not receive any royalties.”

. . . .

“In Capitol Records v. ReDigi, the Second Circuit held that reselling a digital file without the copyright holder’s permission is not fair use because the resales competed with the legitimate copyright holder’s sales. … The same rationale applies to the unauthorized resale or lending of ebooks.”

Link to the rest at Publishing Perspectives

Copyright/Intellectual Property, Non-US

9 Comments to “Authors Guild and Society of Authors Allege Copyright Infringement by the Internet Archive”

  1. First they threw a fundraiser for themselves to move their servers to Canada because the Bad Orange Man was going to shut them down after the inauguration. Now, they’re pirating books (they really are, I’ve seen them).

    Ain’t they sweethearts?

  2. Every Internet Archive scan I’ve ever checked out has been useless.

  3. The Internet Archive and its Open Library are wonderful creations. I don’t know anything about the CDL other than what is in the above excerpt from the article. I’m not aware of the indentity of the “legal scholars” who attended the meeting(s) of academics. But one would expect that the legal position taken is at least an arguable one, and endorsed not only by the Archive but by “the massive California State University libraries and the Boston and San Francisco public libraries”. On its face it is not unreasonable, and perhaps represents what the law should be in any case. Only one copy is lent for a limited time. Whilst CDL may well be struck down by the Courts, almost certainly so in some countries, there seems to be zero public benefit in this happening. Even more so in cases where books have not been made available as ebooks.

    I also note that the Guild did its normal incompetent job.

    Long live CDL

  4. So funny that people are only now realizing this is an issue. I pointed out the illegality of this lending five and a half years ago.

  5. The Open Library is stealing, pure and simple. Copyright means, at its most basic level, the right to copy (obviously there are also other rights involved as well). Of course, copying for one’s own use such as on a different device is fine. Copying to give or lend to the public is not.

    This practice violates my rights as an author in several ways. First, they are directly competing with my sales of ebooks, including sales to libraries (which then have the legal right to lend out copies, one reader at a time).

    Second, they are violating my moral and artistic rights. I have chosen to retire half a dozen of my earlier books, as stated on my website, because I consider them outdated and a poor reflection on my current quality of writing, and therefore harmful to my reputation. Yes, there are used copies of these books available but they are too few to worry about.

    In addition, I have substantially rewritten many of my other books (more than 100 total) to update and improve them before issuing them as ebooks. Open Library is sending out the old, inferior copies.

    It is not some librarian or pseudo-librarian’s right to make artistic choices for me, or to steal from me. While I haven’t always agreed with the Authors Guild in every respect, they’re 100 percent on target on this one.

    • It may well be that CDL is ultimately found to breach existing copyright law. I have now had a brief look at the position statement, which seems to adopt an interpretation of US Copyright law whereby fair use and the first sale doctrine apply to format shifting for lending purposes, subject to certain conditions. I find this interpretation somewhat strained. Until the issue is decided by a court there is of course some doubt.

      Let’s say Open Library have legally acquired a single printed copy of one of your books, which it would be entitled to lend to the public. Under the CDL interpretation it can then legally make one scanned copy. It can then lend a single copy of the book for a limited time, either the hard copy or the scanned copy. No further loan may be made of either copy whilst the existing single loan continues. The scanned copy must be “protected” by DRM. If the CDL interpretation is incorrect, then the law should be amended to provide a similar specific exception, if not generally then at least when an ebook is not available.

      Personally I don’t believe that an author should have a right to withdraw a work once published. In the US the basis of copyright law is the Constitution. The goal of copyright is to “promote the Progress of Science and useful Arts”. In the case of books this amounts to encouraging the publication of more of them. The means of doing this are by way of a statutory monopoly for a limited time. This contemplates that the books will enter the public domain on expiry of the statutory monopoly. If an author withdraws a work this realistically will not happen. Alternately perhaps it is logically arguable that you should be able to withdrew a work during the term of the copyright but it must enter the public domain on its expiry.

      Certainly I think it is unconscionable to once take advantage of the copyright law for a work and then frustrate the very aims of the legislation.

      In any event, a quick search of Open Library finds that they have none of your works available at present.

      • I did not “withdraw” a work once published. I did not “take advantage” of the copyright law and then “frustrate its aims.” The books were published. The print copies remain available in used editions.

        There is no obligation for any author to continue issuing new editions, such as digital ones, or to allow anyone else to do so during the life of the copyright.

        Some authors have withdrawn books because they were deemed to be libelous or because sources proved to be dishonest or mistaken. I don’t see how this cheats anyone of anything under copyright law.

        ALL copyrights expire after their term. That includes copyrights to unpublished works, to works issued in only one edition, and even all the photographs you’ve ever taken.

  6. We’ll see.

    AG thought they had a slam dunk going after google too.

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