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.
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“‘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.”
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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.”
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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.”
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“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