8 ms·

Ars: “Book publishers with surging profits struggle to prove IA hurt sales”

126 points by geephroh 4y ago

taeric 4y ago
Book publishers are notorious for being very whiny. One need only look into the history of paperback books to see how interesting their arguments can be. That they would want to squash lending comes as no real surprise. I swear, if they could remove second hand sales, they would. I'll also note I amusingly mixed up IA with AI, such that I was very confused on how the story was relevant to the headline here. :D
- throwanem 4y ago
  > I swear, if they could remove second hand sales, they would. You don't need to swear. Textbook publishers already have done. I'm sure conventional publishers would too, if they imagined for a moment they could get away with it. https://www.universitystar.com/opinions/opinion-textbook-access-codes-provide-few-benefits-many-hassles-for-students/article_70f68d12-82f6-11ec-9fc2-ff5de9375741.html https://www.universitystar.com/opinions/opinion-textbook-acc...
- caractacus 4y ago
  They don't want to 'squash lending'. They are delighted with public libraries who license books and lend out a discrete number of copies at any one time for a limited period of time. They don't like the Internet Archive version which is 'we shall upload any book we find and allow anyone to download it and keep it, forever'. The publishers would like the IA to stop doing that. If the IA wants to keep offering things which are out of copyright or which the copyright owners aren't going to challenge, great. Go for it. This isn't an assault on the concept of a library which is what the IA is trying to pretend. It's a challenge on the IA's pretense that they are a library and not a stock of pirated books, amongst other items.
  - thebooktocome 4y ago
    > They don't like the Internet Archive version which is 'we shall upload any book we find and allow anyone to download it and keep it, forever'. This was only true for a twelve-week period at the height of the pandemic, it hasn’t been true since then.
    - throwanem 4y ago
      The "keep" part was never true. Those "Adobe Digital Editions" expire.
      - thebooktocome 4y ago
        True, good catch.
  - blowski 4y ago
    > They are delighted with public libraries I dispute that. I did some work with a large book publisher in the UK. They hated libraries and had all sorts of tactics to work against them.
  - deleted 4y ago
    [deleted]
  - geephroh 4y ago
    Good lord...not even sure where to start with this: 1) The ebooks available through IA's Open Library are offered under a controlled lending scheme similar to a commercial service like OneDrive and Amazon. Users are limited to 10 books at a time, and can borrow the items for up to 14 days. After that period, the ebooks -- which use Adobe's DRM tech -- are disabled. 2) The number of "copies" available for lending are restricted to the actual number of physical copies that IA has in storage, permanently out of circulation. 3) Hachette, HarperCollins, Macmillan and the rest of the publishing industry is fairly hell-bent on "squashing lending" that doesn't happen through their exclusive and extremely lucrative ebook channels. The steep increases in pricing along with tightening restrictions on access have public library institutions such as the ALA concerned about the very existence of book lending in the future. 4) In their PR blitz, the publishers talk a lot about the "National Emergency Library," which did allow for unlimited lending during a 12-week period at the beginning of the pandemic; but the suit is not confined to this short-lived program.
jfengel 4y ago
I am not a lawyer, but I wouldn't have thought that was relevant. This isn't like libel, where you have to show damages. As I understand it, if I wrote a manuscript that I didn't want published at all, my rights would still be violated if you published it. I didn't lose any money; I just wanted to assert my right to control it. I could imagine this being an issue in the penalty phase, but they're not there yet. Can a lawyer explain why this is relevant here?
- thebooktocome 4y ago
  This is answered in the article. Plaintiffs are alleging that they were damaged; judge pointed out their revenues spiked during the period in question. IA is sticking to a fair use defense, so showing damage was caused would hurt their defense.
- deleted 4y ago
  [deleted]
- jchw 4y ago
  IANAL but I do believe one of the factors of Fair Use is whether you are competing with the owner of the copyrighted work(s) in question; "the effects on the potential market." So if they're trying to make a case for or against IA's use of the copyrighted material constituting fair use, this seems relevant.
- jcranmer 4y ago
  At its core, this case comes down to "is this fair use" (there's no claims that it's not copyright infringement, IIRC). And while fair use analysis considers the four factors, in actual practice, the four factors are merely a way to explain the reasoning behind the gut decision, which usually boils down to "did the copyright owner deserve to get paid?" The fourth factor is "the effect of the use upon the potential market for or value of the copyrighted work," which is where the monetary aspect is going to be considered. If the judge is pointing out that the publishers actually saw market growth as the Internet Archive expanded its lending, that could signal that they are going to find the fourth factor in favor of the Internet Archive--and that would utterly destroy the publishers' case here.
endisneigh 4y ago
I don’t see anyone can defend the internet archive. They decided to loan out digital assets without any regard to the backed licenses available. The Union of people’s thoughts on the matter is very amusing, though. People don’t want ads, or drm, or to pay. It should be totally free, effort be damned. Personally my main criticism is that in schools certain editions of text are required. Ideally all problem sets and answers would be provided without having to buy a given text, and you can consult any resource that teachers the relevant material as a supplement, rather than an issued textbook. Assuming the IA wins, though. It would be curious to setup a website where people can donate physical copies of a book and you download the ebook and can loan it out in accordance to the amount you have physically. Yes, this is a library, however unlike a regular library it’d be interesting to push this to the limit. Even per page checkout on demand.
- caractacus 4y ago
  The IA are trying to drum up support by stating that the publishers want to destroy libraries, which obviously makes them sound really awful. But publishers just want the IA to stop offering their copyrighted works for free to anyone at all times without paying any kind of license fee, which is not how a library works.
  - RustyRussell 4y ago
    You keep saying this, but it's not true: they only allow one borrower of any work at a time. This really does mirror the Library model, but on the internet.
    - ZekeSulastin 4y ago
      I thought this whole lawsuit stemmed from the brief window of time where the IA removed that restriction.
      - bentley 4y ago
        Sort of. The publishers have always hated the concept. They simply never chose to file any lawsuit until the National Emergency Library came about. The trouble with lawsuits is they might be ruled the other way, providing explicit precedent that something is allowed (such as in 2013 when the Supreme Court ruled that importing and selling international editions of textbooks is legal). Sometimes the threat of litigation has a stronger chilling effect than actual litigation. But not here—IA saw an opportunity to push the boundaries, and took it. And the publishers probably think uncontrolled digital lending is an easier battle to win than controlled digital lending.
zerocrates 4y ago
It's hard to imagine the Internet Archive winning... just CDL on its own is on pretty shaky ground, and the Archive's brief "uncontrolled" version even more so. Pushing the boundaries is kind of their thing but I think they went too far here.
celeritascelery 4y ago
This reminds me of the vidangel case[1]. The company would buy physical copies of movies and then rent a digital stream of it. Every digital stream was backed by a physical copy of the media, which is not true in the IA case. They lost the case and were found in violation of copyright. If they couldn’t win, I don’t see how IA can. [1] https://en.m.wikipedia.org/wiki/Disney_v._VidAngel https://en.m.wikipedia.org/wiki/Disney_v._VidAngel
- spondylosaurus 4y ago
  Doesn't the Internet Archive do the exact same thing, scanning a physical book that they actually own? Per the article linked above: > Although creating its own unsanctioned e-books triggered the lawsuit, Gratz argued that IA’s digital lending is fair use, precisely because it makes copies of the physical books in its Open Library collection. That, he said, is “transformative” fair use, utilizing technologies to transform millions of physical books in order to improve the efficiency of lending without encroaching on publishers’ or authors’ rights. Gratz said that IA avoids the conflict by only lending out e-books to one user at a time, causing no harm because it honors traditional lending in brick-and-mortar libraries that has been practiced for years without impacting publishers’ bottom lines. > The only exception to this one-to-one ratio was when IA launched the “National Emergency Library” for 12 weeks when the pandemic started, offering “an enormous universe of scanned books to an unlimited number of individuals simultaneously,” the plaintiff's complaint said.
  - squeaky-clean 4y ago
    The difference is VidAngel owned 1 copy for each concurrent live stream. You can rip a movie or scan a book you own and share it with a million people at once. VidAngel wasn't doing that. Every stream was 1-to-1 with a real physical copy. If they had 1000 people streaming the movies at once, it meant they had 1000 physical copies as well.
    - boomboomsubban 4y ago
      That is how the IA's controlled digital lending works. For every copy lent out, there's a physical copy of the book sitting unused somewhere owned by the IA or affiliates. The only time that wasn't true was during the National Emergency Library.
toomuchtodo 4y ago
> “Free is an insurmountable competitor,” the publishers’ complaint said. At least they know what they’re up against.
AlbertCory 4y ago
IANAL but the issues seem depressingly similar to this (maybe an actual lawyer can enlighten me): https://www.theatlantic.com/technology/archive/2017/04/the-tragedy-of-google-books/523320/ https://www.theatlantic.com/technology/archive/2017/04/the-t... Once in Google Legal, I found a snippet of a book that looked promising for patent-busting. I really had to read the book to know if it was worth buying a legal copy of it. Out of 100 possibilities you run across in searching, maybe one is actually worth it. You can't tell until you read it. The same is true of scholarly articles, btw. Of course, the old Books project had it on disk, like they have almost every book ever published. They told me I could come over to the actual cubicle of one of the engineers and read it there; they could not even send me an URL. That's how tightly access was controlled. I don't remember why I didn't. Maybe the case changed, or I didn't need it after all.
smeej 4y ago
I know it's well-enshrined in law, but I don't know that I'll ever wrap my head around the bedrock principle that supposedly keeps "intellectual property" from being an oxymoron. Someone else gets to tell me that I can't arrange bits on my computer in the same pattern as the bits on someone else's computer, just because they arranged their bits in that order first? It just doesn't compute for me. Property laws exist because if I take your shoe, you don't have your shoe anymore. If I arrange bits on my computer in the same order as the bits on yours, you still have yours, and you can still do all the same things with them that you could before. I don't see why you should have a right to tell me how I can or can't use my property just because you came up with a specific way to use yours. This is especially true if we're talking about ideas and not digital copies, like with NDAs. Telling me I can't tell anybody else about the thoughts in my brain because someone else prompted me to think them just boggles my mind. I think "intellectual property" is a contradiction in terms.
- harshreality 4y ago
  It's a bad term. It's a monopoly privilege artificially granted by government to encourage more people to create useful works (hopefully actually useful, not just a theoretical possibility of being useful). That conflicts with the natural rights that people would otherwise have to do what they want with atoms or bits they possess.
  - mcv 4y ago
    > It's a bad term. It's a monopoly privilege artificially granted by government To publishers who want to equate violation of that monopoly privilege with theft, it's a very good term.
  - EntrePrescott 4y ago
    > That conflicts with the natural rights that people would otherwise have to do what they want with atoms or bits they possess not natural rights but natural possibilities - which by the way are totally disjoint from "rights" which are a legal/moral/civilizational construct/convention. And property (be it about physical or "intellectual" goods) is exactly one such right i.e. a legal/moral/civilizational construct/convention. Outside of the individual's own life and body (and very few subjects directly related to that), it quickly becomes very muddy and subjective at best to argue with "natural rights", especially when it comes to property rights. Whether or not my property claim to my PC or my garden is more justified than the property claim of some IP creator or publisher to their works, they both have in common that the property right, for as much as it exists, is a legal/civilizational norm that exists by virtue of being defined and enforced by the civilizational system we live in. So at the end of the day, like so often in legal matters when there is a conflict of interest and priorization between two rights or legal principles (i.e. legal/moral/civilizational construct/conventions), it all comes down to how the legal system is set up to balance and prioritize the conflicting principles/rights depending on the case configuration.
harshreality 4y ago
> Gratz said that IA avoids the conflict by only lending out e-books to one user at a time, causing no harm because it honors traditional lending in brick-and-mortar libraries that has been practiced for years without impacting publishers’ bottom lines. This is a bad argument. It's very likely that brick-and-mortar libaries do impact publishers' bottom lines, and they're allowed anyway. The concept of libraries fundamentally conflicts with publishers' concept of "reasonable" profit from their copyrighted material. Capitalism conflicts with socialism.
cwillu 4y ago
“Ars:” shouldn't be in the title

126 points by geephroh 4y ago

Book publishers are notorious for being very whiny. One need only look into the history of paperback books to see how interesting their arguments can be. That they would want to squash lending comes as no real surprise. I swear, if they could remove second hand sales, they would. I'll also note I amusingly mixed up IA with AI, such that I was very confused on how the story was relevant to the headline here. :D

throwanem 4y ago
> I swear, if they could remove second hand sales, they would. You don't need to swear. Textbook publishers already have done. I'm sure conventional publishers would too, if they imagined for a moment they could get away with it. https://www.universitystar.com/opinions/opinion-textbook-access-codes-provide-few-benefits-many-hassles-for-students/article_70f68d12-82f6-11ec-9fc2-ff5de9375741.html https://www.universitystar.com/opinions/opinion-textbook-acc...
caractacus 4y ago
They don't want to 'squash lending'. They are delighted with public libraries who license books and lend out a discrete number of copies at any one time for a limited period of time. They don't like the Internet Archive version which is 'we shall upload any book we find and allow anyone to download it and keep it, forever'. The publishers would like the IA to stop doing that. If the IA wants to keep offering things which are out of copyright or which the copyright owners aren't going to challenge, great. Go for it. This isn't an assault on the concept of a library which is what the IA is trying to pretend. It's a challenge on the IA's pretense that they are a library and not a stock of pirated books, amongst other items.
- thebooktocome 4y ago
  > They don't like the Internet Archive version which is 'we shall upload any book we find and allow anyone to download it and keep it, forever'. This was only true for a twelve-week period at the height of the pandemic, it hasn’t been true since then.
  - throwanem 4y ago
    The "keep" part was never true. Those "Adobe Digital Editions" expire.
    - thebooktocome 4y ago
      True, good catch.
- blowski 4y ago
  > They are delighted with public libraries I dispute that. I did some work with a large book publisher in the UK. They hated libraries and had all sorts of tactics to work against them.
- deleted 4y ago
  [deleted]
- geephroh 4y ago
  Good lord...not even sure where to start with this: 1) The ebooks available through IA's Open Library are offered under a controlled lending scheme similar to a commercial service like OneDrive and Amazon. Users are limited to 10 books at a time, and can borrow the items for up to 14 days. After that period, the ebooks -- which use Adobe's DRM tech -- are disabled. 2) The number of "copies" available for lending are restricted to the actual number of physical copies that IA has in storage, permanently out of circulation. 3) Hachette, HarperCollins, Macmillan and the rest of the publishing industry is fairly hell-bent on "squashing lending" that doesn't happen through their exclusive and extremely lucrative ebook channels. The steep increases in pricing along with tightening restrictions on access have public library institutions such as the ALA concerned about the very existence of book lending in the future. 4) In their PR blitz, the publishers talk a lot about the "National Emergency Library," which did allow for unlimited lending during a 12-week period at the beginning of the pandemic; but the suit is not confined to this short-lived program.

jfengel 4y ago

I am not a lawyer, but I wouldn't have thought that was relevant. This isn't like libel, where you have to show damages. As I understand it, if I wrote a manuscript that I didn't want published at all, my rights would still be violated if you published it. I didn't lose any money; I just wanted to assert my right to control it. I could imagine this being an issue in the penalty phase, but they're not there yet. Can a lawyer explain why this is relevant here?

thebooktocome 4y ago
This is answered in the article. Plaintiffs are alleging that they were damaged; judge pointed out their revenues spiked during the period in question. IA is sticking to a fair use defense, so showing damage was caused would hurt their defense.
deleted 4y ago
[deleted]
jchw 4y ago
IANAL but I do believe one of the factors of Fair Use is whether you are competing with the owner of the copyrighted work(s) in question; "the effects on the potential market." So if they're trying to make a case for or against IA's use of the copyrighted material constituting fair use, this seems relevant.
jcranmer 4y ago
At its core, this case comes down to "is this fair use" (there's no claims that it's not copyright infringement, IIRC). And while fair use analysis considers the four factors, in actual practice, the four factors are merely a way to explain the reasoning behind the gut decision, which usually boils down to "did the copyright owner deserve to get paid?" The fourth factor is "the effect of the use upon the potential market for or value of the copyrighted work," which is where the monetary aspect is going to be considered. If the judge is pointing out that the publishers actually saw market growth as the Internet Archive expanded its lending, that could signal that they are going to find the fourth factor in favor of the Internet Archive--and that would utterly destroy the publishers' case here.

endisneigh 4y ago

I don’t see anyone can defend the internet archive. They decided to loan out digital assets without any regard to the backed licenses available. The Union of people’s thoughts on the matter is very amusing, though. People don’t want ads, or drm, or to pay. It should be totally free, effort be damned. Personally my main criticism is that in schools certain editions of text are required. Ideally all problem sets and answers would be provided without having to buy a given text, and you can consult any resource that teachers the relevant material as a supplement, rather than an issued textbook. Assuming the IA wins, though. It would be curious to setup a website where people can donate physical copies of a book and you download the ebook and can loan it out in accordance to the amount you have physically. Yes, this is a library, however unlike a regular library it’d be interesting to push this to the limit. Even per page checkout on demand.

caractacus 4y ago
The IA are trying to drum up support by stating that the publishers want to destroy libraries, which obviously makes them sound really awful. But publishers just want the IA to stop offering their copyrighted works for free to anyone at all times without paying any kind of license fee, which is not how a library works.
- RustyRussell 4y ago
  You keep saying this, but it's not true: they only allow one borrower of any work at a time. This really does mirror the Library model, but on the internet.
  - ZekeSulastin 4y ago
    I thought this whole lawsuit stemmed from the brief window of time where the IA removed that restriction.
    - bentley 4y ago
      Sort of. The publishers have always hated the concept. They simply never chose to file any lawsuit until the National Emergency Library came about. The trouble with lawsuits is they might be ruled the other way, providing explicit precedent that something is allowed (such as in 2013 when the Supreme Court ruled that importing and selling international editions of textbooks is legal). Sometimes the threat of litigation has a stronger chilling effect than actual litigation. But not here—IA saw an opportunity to push the boundaries, and took it. And the publishers probably think uncontrolled digital lending is an easier battle to win than controlled digital lending.

zerocrates 4y ago

It's hard to imagine the Internet Archive winning... just CDL on its own is on pretty shaky ground, and the Archive's brief "uncontrolled" version even more so. Pushing the boundaries is kind of their thing but I think they went too far here.

celeritascelery 4y ago

This reminds me of the vidangel case[1]. The company would buy physical copies of movies and then rent a digital stream of it. Every digital stream was backed by a physical copy of the media, which is not true in the IA case. They lost the case and were found in violation of copyright. If they couldn’t win, I don’t see how IA can. [1] https://en.m.wikipedia.org/wiki/Disney_v._VidAngel https://en.m.wikipedia.org/wiki/Disney_v._VidAngel

spondylosaurus 4y ago
Doesn't the Internet Archive do the exact same thing, scanning a physical book that they actually own? Per the article linked above: > Although creating its own unsanctioned e-books triggered the lawsuit, Gratz argued that IA’s digital lending is fair use, precisely because it makes copies of the physical books in its Open Library collection. That, he said, is “transformative” fair use, utilizing technologies to transform millions of physical books in order to improve the efficiency of lending without encroaching on publishers’ or authors’ rights. Gratz said that IA avoids the conflict by only lending out e-books to one user at a time, causing no harm because it honors traditional lending in brick-and-mortar libraries that has been practiced for years without impacting publishers’ bottom lines. > The only exception to this one-to-one ratio was when IA launched the “National Emergency Library” for 12 weeks when the pandemic started, offering “an enormous universe of scanned books to an unlimited number of individuals simultaneously,” the plaintiff's complaint said.
- squeaky-clean 4y ago
  The difference is VidAngel owned 1 copy for each concurrent live stream. You can rip a movie or scan a book you own and share it with a million people at once. VidAngel wasn't doing that. Every stream was 1-to-1 with a real physical copy. If they had 1000 people streaming the movies at once, it meant they had 1000 physical copies as well.
  - boomboomsubban 4y ago
    That is how the IA's controlled digital lending works. For every copy lent out, there's a physical copy of the book sitting unused somewhere owned by the IA or affiliates. The only time that wasn't true was during the National Emergency Library.

toomuchtodo 4y ago

> “Free is an insurmountable competitor,” the publishers’ complaint said. At least they know what they’re up against.

AlbertCory 4y ago

IANAL but the issues seem depressingly similar to this (maybe an actual lawyer can enlighten me): https://www.theatlantic.com/technology/archive/2017/04/the-tragedy-of-google-books/523320/ https://www.theatlantic.com/technology/archive/2017/04/the-t... Once in Google Legal, I found a snippet of a book that looked promising for patent-busting. I really had to read the book to know if it was worth buying a legal copy of it. Out of 100 possibilities you run across in searching, maybe one is actually worth it. You can't tell until you read it. The same is true of scholarly articles, btw. Of course, the old Books project had it on disk, like they have almost every book ever published. They told me I could come over to the actual cubicle of one of the engineers and read it there; they could not even send me an URL. That's how tightly access was controlled. I don't remember why I didn't. Maybe the case changed, or I didn't need it after all.

smeej 4y ago

I know it's well-enshrined in law, but I don't know that I'll ever wrap my head around the bedrock principle that supposedly keeps "intellectual property" from being an oxymoron. Someone else gets to tell me that I can't arrange bits on my computer in the same pattern as the bits on someone else's computer, just because they arranged their bits in that order first? It just doesn't compute for me. Property laws exist because if I take your shoe, you don't have your shoe anymore. If I arrange bits on my computer in the same order as the bits on yours, you still have yours, and you can still do all the same things with them that you could before. I don't see why you should have a right to tell me how I can or can't use my property just because you came up with a specific way to use yours. This is especially true if we're talking about ideas and not digital copies, like with NDAs. Telling me I can't tell anybody else about the thoughts in my brain because someone else prompted me to think them just boggles my mind. I think "intellectual property" is a contradiction in terms.

harshreality 4y ago
It's a bad term. It's a monopoly privilege artificially granted by government to encourage more people to create useful works (hopefully actually useful, not just a theoretical possibility of being useful). That conflicts with the natural rights that people would otherwise have to do what they want with atoms or bits they possess.
- mcv 4y ago
  > It's a bad term. It's a monopoly privilege artificially granted by government To publishers who want to equate violation of that monopoly privilege with theft, it's a very good term.
- EntrePrescott 4y ago
  > That conflicts with the natural rights that people would otherwise have to do what they want with atoms or bits they possess not natural rights but natural possibilities - which by the way are totally disjoint from "rights" which are a legal/moral/civilizational construct/convention. And property (be it about physical or "intellectual" goods) is exactly one such right i.e. a legal/moral/civilizational construct/convention. Outside of the individual's own life and body (and very few subjects directly related to that), it quickly becomes very muddy and subjective at best to argue with "natural rights", especially when it comes to property rights. Whether or not my property claim to my PC or my garden is more justified than the property claim of some IP creator or publisher to their works, they both have in common that the property right, for as much as it exists, is a legal/civilizational norm that exists by virtue of being defined and enforced by the civilizational system we live in. So at the end of the day, like so often in legal matters when there is a conflict of interest and priorization between two rights or legal principles (i.e. legal/moral/civilizational construct/conventions), it all comes down to how the legal system is set up to balance and prioritize the conflicting principles/rights depending on the case configuration.

harshreality 4y ago

> Gratz said that IA avoids the conflict by only lending out e-books to one user at a time, causing no harm because it honors traditional lending in brick-and-mortar libraries that has been practiced for years without impacting publishers’ bottom lines. This is a bad argument. It's very likely that brick-and-mortar libaries do impact publishers' bottom lines, and they're allowed anyway. The concept of libraries fundamentally conflicts with publishers' concept of "reasonable" profit from their copyrighted material. Capitalism conflicts with socialism.

cwillu 4y ago

“Ars:” shouldn't be in the title