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The article doesn't seem to understand the issue. Whether a copy of a work is fair use turns on, amongst other things, the effect of the copy on the potential
by granzymes 4y ago
The article doesn't seem to understand the issue.
Whether a copy of a work is fair use turns on, amongst other things, the effect of the copy on the potential market for the original. The article acknowledges this.
Controlled Digital Lending competes directly with the licensing scheme publishers have for library ebooks. The fair use argument was always doomed to fail.
The article then completely ignores the copyright argument and tries to equate CDL with libraries loaning out their physical copies. This is completely absurd, since libraries do not distribute duplicates of their physical books and so do not even enter the realm of copyright.
If libraries were systematically distributing duplicates of their existing books they would be sued for copyright infringement.
- A4ET8a8uTh0 4y ago<< If libraries were distributing copies of their existing books they would be sued for copyright infringement. There may be a question of definition here. Do you mean that they have to lend it, but they cannot give it away?
- Borealid 4y agoThe parent post makes the unwise choice of using the word "copy" to mean "duplicate". They intend to say "libraries do not distribute duplicates of purchased books; they distribute the originals". Unfortunately the word "copy" could also mean "the books purchased by the library". Of course the library distributes purchased books. They just don't scan the books, print fascimiles of those books on new paper, and then distribute those prints they made themselves.
- granzymes 4y agoAh, thank you. Replaced "copies" with "duplicates" in my post
- zuminator 4y agoI think what GP is saying is that when lending (or for that matter giving away) print books, libraries don't copy anything, they just distribute purchased works, which they have a fundamental right to do (in the US). That's different from the IA first making a digital copy and then distributing that copy, which there is no fundamental right to do.
- granzymes 4y agoYes, exactly.
- unopened 4y agoThe market considerations for fair use concern the market for the work of authorship as a whole, not a specific format of it. I'm not convinced fair use is the strongest argument in IA's case. But the idea that lending ebook copies can't be fair use simply because it competes with publishers' ebook licensing schemes seems like a misreading of how fair use is typically applied. Of course other fair use considerations factor in, but the market impact for a specific format isn't a death blow against reproductions of a work, generally speaking.
- Mindwipe 4y agoIt's only one of the tests, but in legal terms and precident it is a very strong one that HN frequently underestimates. It's not impossible for a case to win when competing against a licensing scheme, but it is very, very, very hard.
- musicale 4y agoWhat IA is doing is removing the physical copy from circulation, making a digital copy, and lending out the digital copy. I don't see the argument that this is "distribution" any more than regular (obnoxious) ebook lending is.
- refulgentis 4y agoLaws a bit more open to interpretation and chaining rarely works, it’s humanist, and it’s at its face unreasonable that one physical copy => right to lend out digital cooy.
- grey413 4y agoIf the IA is creating their own digital copies of physical books, it could be argued that that the IA is creating and distributing derivative works. I'm not certain, but my impression is that derivative works have little in the way of legal protection.
- ac29 4y agoThe court order discusses this, and says while the first sale doctrine means IA could resell or lend their physical books, that right does not extend to unauthorized reproductions (such as making an ebook by scanning in a print book).
- Retric 4y agoThey very much do in cases of backups and even VCR/DVR recordings of live TV. The courts have gone back and forth on this issue, and I would expect this ruling to be appealed by either side if they had lost.
- dahart 4y agoChanging formats without changing content is not a derivative work; it’s just a copyright violation. A derivative work must “add new original copyrightable authorship to that work.” https://www.copyright.gov/circs/circ14.pdf https://www.copyright.gov/circs/circ14.pdf
- endisneigh 4y ago
- blincoln 4y agoDo you believe that libraries should be barred from archiving material to microfiche? How is that significantly different from format-shifting a book to electronic form, as long as they use DRM to limiy concurrent viewing?
- jhanschoo 4y agoI suppose the difference is that publishers aren't suing such libraries and such archival isn't accessible enough to harm publishers' markets.
- granzymes 4y agoThe second point is crucial. The microfiche copies of e.g. newspapers do not compete with the originals.
- leoc 4y agoIANAL but I think I recall seeing that the US libraries’ initiative to reprint some older books on non-acid-based paper was supported by an explicit carve-out in US copyright law.
- yencabulator 4y agoHonest question: Are libraries special cased in US law? (They are in many other places, and have rights beyond consumers or businesses.)