9 ms·

When you buy a book, you can loan it to anyone – a judge says libraries can’t

99 points by leotravis10 4y ago

JoeAltmaier 4y ago
My author friend had to go to court to get paid royalties for audio-book rights, which she had not sold. When Kindle(?) would read any book, it became problematic. Nobody to blame here; existing contracts just didn't know what innovations were coming. And business depends upon contracts, like it or not.
chinabot 4y ago
Crazy Decision, but that's the way the world is turning. This is another reason I'm coming to believe I am eventually going to be shafted badly by being in the kindle ecosphere. I have been a user since 2010 with no issues for the first ten years. Then came the recent update the middle of last year whereby I can no longer lend my books out to my friend, this was a big blow as we used to exchange books we liked. Recently I have also noticed that the device seems to want to turn on Wi-Fi for me to open books I have downloaded already onto the device which also has sufficient memory to store them, this seems more to be the ones I haven't read for a few months. The final nail in the coffin came a few weeks ago when I wanted to re-read a book I had read and it asked me to purchase it, thinking I must have read it on kindle unlimited which I had subscribed to and cancelled a few years earlier I pressed buy now, after reading it I looked back through my purchase history and found the same book I had bought five years before. Not even sure who to call on this one but prior to this if I owned the book already it just came up with the read-now button not the buy-now! I am almost certain that sometime in the future if the kindle doesn't phone home after a period the books on it will disappear. I managed to get some books off it to epub format, but the most recent updates have somehow stopped the program that did that from working. Bottom line is I love my kindle, but I am only getting epub books, keeping them on the PC and emailing them to the device.
- galkk 4y ago
  > I am almost certain that sometime in the future if the kindle doesn't phone home after a period the books on it will disappear YouTube app video downloads work exactly that way, same for prime video, I believe
- crooked-v 4y ago
  > The final nail in the coffin came a few weeks ago when I wanted to re-read a book I had read and it asked me to purchase it, thinking I must have read it on kindle unlimited which I had subscribed to and cancelled a few years earlier I pressed buy now, after reading it I looked back through my purchase history and found the same book I had bought five years before. This is almost certainly the publisher's fault, by way of putting up a different listing for the same book. You've probably got two different versions of the book in your library now.
- alpaca128 4y ago
  > the device seems to want to turn on Wi-Fi for me to open books I have downloaded already onto the device They probably weren't downloaded. My Kindle has been doing this thing for years: it only seems to download enough metadata to show a newly purchased book in the list, but the actual book won't download until I try to read it. I don't know why because it's utterly stupid, I don't know under what circumstances it does this and when it downloads the entire book by itself, it seems to be completely random. > I managed to get some books off it to epub format, but the most recent updates have somehow stopped the program that did that from working. And 5 years later companies will whine to the media about evil piracy again.
- CobrastanJorji 4y ago
  Is it crazy? Copyright is the right to make a copy. Libraries can buy and loan books because none of that involves making a copy. Digitizing a book and loaning digital copies does involve making copies, so it's a violation of copyright. Seems very straightforward to me. Am I missing some major detail or catch or something? Sure, there's an exception for "fair use," but I don't think fair use has ever covered making a complete copy of a work and giving it to someone else. And of the four factors judging fair use, the "amount and substantiality of the portion taken" one fails completely here. Doesn't seem surprising.
  - Dylan16807 4y ago
    > Is it crazy? Copyright is the right to make a copy. Libraries can buy and loan books because none of that involves making a copy. Digitizing a book and loaning digital copies does involve making copies, so it's a violation of copyright. Seems very straightforward to me. Am I missing some major detail or catch or something? The problem is that viewing copies that way completely trashes the rights people have for their digital goods. Displaying it is technically a copy. Reselling it is technically a copy. Format shifting is technically a copy. Lending is technically a copy. If I make an ephemeral copy, and keep the original in a vault the entire time the ephemeral copy is loaned out, that should be good enough. (Maybe you want a minimum loan period, details details, but something that works just like a traditional library shouldn't be illegal for digital assets.)
    - CobrastanJorji 4y ago
      > the rights people have for their digital goods People don't have any rights to their digital goods. Doesn't exist. They are not. It is wonderful to discuss ideas for how the system SHOULD be. I 100% support a legislated solution for digital ownership of copies of things, with a right to transfer and so on, but that's sadly a hypothetical discussion about what could be.
      - TheCoelacanth 4y ago
        That is insanity that was never envisioned when copyright was created. First-sale doctrine is well established. If you buy a book, you can give it away, sell it or lend it to anyone you want. Those rights should not simply disappear when you start dealing with a digital book.
- nebula8804 4y ago
  Sounds like someone needs to develop an alternative OS for the device that does away with all this nonsense.
tedunangst 4y ago
Did the judge actually say that all libraries everywhere are illegal? Or am I just supposed to infer that and conclude they must be crazy?
- ksherlock 4y ago
  Of course not. The ruling was that the copyright owner has exclusive rights to prepare derivative works. IA scanning and lending is creating a derivative work without transformative value. Fair use doesn't apply. End of case. https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf?fbclid=IwAR1rM4_dbpOOKJUi5fRa112PSyoEYcd1z_ePwpL4WUEgA1FVIiWuiLCRs8w https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...
  - OrvalWintermute 4y ago
    Not so fast. I think your simplification resulted in oversimplification. > The Publishers task aggregators with ensuring that a library lends its ebooks only to the library’s members. Id. ¶¶ 123, 125. The Publishers also require aggregators to employ approved “digital rights management” (“DRM”) software and other security measures to prevent unauthorized copying or distribution of ebook files. Id. ¶ 126. Demand for library ebooks has increased over the past decade. In 2012, OverDrive, the largest aggregator, processed 70 million digital checkouts of ebooks and audiobooks; by 2020, that number had risen to 430 million. Id. ¶¶ 119, 164.
- gs17 4y ago
  Nope, this is just about digitizing books and renting out the e-books as an alternative to the physical copies.
suddenclarity 4y ago
The headline isn't mentioned in the opinion piece? What the judge ruled was: > An ebook recast from a print book is a paradigmatic example of a derivative work. In other words, if a library buy a book, they can't just digitise it and share it without permission.
- tobyjsullivan 4y ago
  I'd go so far as to say the article directly contradicts the headline. The author spends an enormous amount of time explaining how the rights of "end users" have been cemented, such as the right to change formats. If a consumer lends a book, they are, by definition, no longer the "end user" and none of that precedent applies. It's probably true that anyone can lend a book but that's not an "end user" right. In fact, that allowance is the very reason libraries can exist in the first place. The case and article are about something completely different (making copies, then distributing the copies). Odd headline.
  - westurner 4y ago
    > that allowance Right to property: https://en.wikipedia.org/wiki/Right_to_property https://en.wikipedia.org/wiki/Right_to_property
- JohnFen 4y ago
  My understanding is that (in the US), it's legal to make copies of a copyrighted work you legally possess. However, all of the copies must be treated as an indivisible whole. If you sell, lend, or give the work away, you must include all copies along with it (or destroy them).
  - PaulDavisThe1st 4y ago
    The law under which the suit was bought essentially concerns format-shifting before distribution/lending.
- lupire 4y ago
  Flag the submission for misinformation trolling
wesleychen 4y ago
The author really twists logic to make her point. Her main argument against the ruling is that copyright's historical purpose is to spread knowledge, so it should not be used to block controlled digital lending. However, the history laid out in the article is that "What persuaded early state and federal government actors to establish copyright was authors’ reluctance to release their books publicly without the ability to stop the then-rampant piracy by publishers." This original application for copyright is strikingly similar to its current use to prevent digital copying and distribution. The CDL issue with the IA has been litigated multiple times on this forum by now, and the consensus seems to be that publishers weren't going to do anything about CDL until the IA started freely distributing digital copies in the early stages of the Covid pandemic. As someone who reads, I strongly support what the IA is doing, but as someone who produces content, I also want some way of controlling its usage. I wish the author would take a more nuanced approach to this topic rather than misconstruing reality to make the other side seem unreasonable.
- Dylan16807 4y ago
  > but as someone who produces content, I also want some way of controlling its usage. Nobody at this point is making an argument in favor of uncontrolled lending. And the judge is arguing against controlled lending.
  - rcoveson 4y ago
    The judge barely has to argue; the law on this seems totally clear-cut[0]. 108(c)(2) says: > ...any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives. My understanding is that controlled digital lending is its own thing, with its own procedures and licenses. What IA did here was come up with its own controlled digital lending scheme based on ownership of print copies. This doesn't look like one of those tense cases where judges add to the law with rulings that involve reading in-between the lines. This looks like a case where the judge read the law, saw that the law discussed exactly what the defendent did, and so ruled according to the law. 0. https://www.law.cornell.edu/uscode/text/17/108 https://www.law.cornell.edu/uscode/text/17/108
lxgr 4y ago
It's almost as if copyright law, tailored to a specific medium, doesn't translate effortlessly to another, newer, completely different one! Skeuomorphic reductionism has outstayed its welcome on both sides of the debate, I'm afraid.
015a 4y ago
I overall agree with the ruling against IA. And to be clear: I'm a pretty staunch open source / libre software advocate. > The IA maintained that it could, as long as it lent only the same number of copies it owned and locked down the digital copies so that a borrower could not copy or redistribute them. Let's drop the act and be real here: You cannot lock down digitally distributed files in any way which offers reasonable guarantees that someone remotely sophisticated couldn't copy them. Considering that, I think its necessary that the publishers and authors have approved and accepted (1) the distribution itself, and (2) the systems which protect the copying of their work. In the digital world, for example: they've generally approved of Kindle as a digital distribution retailer, and they've approved of the Kindle System (DRM, locked down hardware, etc). They clearly did not approve of IA distributing their work, nor I assume did they approve of whatever DRM scheme IA came up to help protect themselves from legal retribution. (sidenote: the fact that IA put DRM on it at all kind of whispers to me that they knew this lawsuit would be coming, they knew what they were doing had shaky legal foundations, and while I have an immense amount of respect for what they do and their mission, knowingly breaking the law isn't respectable even if you disagree with it). But step out of the digital world and into the physical one. The same rules apply. Publishers would generally approve of Barns and Noble distributing their books; easy enough. But to the second point, implicitly: Publishers have also accepted the inherent physical laws of our universe which protect, not wholly but significantly, works from being copied at scale. There's no DRM protecting physical books; no swipe of your ID card to unlock them; its just physically hard to copy them, its physically hard to take a book off your shelf and hand it to a friend in-person. When you view those facts relative to how easy it is to copy even DRM-protected eBooks, or how easy it would be to just "send" a digital book to anyone, anywhere on the planet, at any time, instantly; it makes a lot more sense to me why publishers are scared of allowing things like this. In other words: Applying the metaphor of a physical book to a digital one is a fundamentally misguided action because digital books are fundamentally different in the ways copyright has historically cared about. If a man in Norway messages me and asks to borrow my physical copy of Hunger Games; I'm going to say no. If he asks to borrow my digital copy, all hypothetically handled in Kindle, just enter his email, I can click a button to "get it back" at any time, instantly: I'm going to say Yes.
the_third_wave 4y ago
In that case a large enough group of people coming together, each of them buying a single book which they then lend out to others can create a library, yes? For the price of a single book you can gain access to first hundreds, then thousands, then tens of thousands, then hundreds of thousands of books. All it would take is for someone to organise those people, keeping a list of requested books, presenting potential members with a choice of books to buy to join this modern-day library. Does the law state people have to keep their books at home? If not they can be kept in a central storage facility which can be accessed by members and/or from where books can be mailed to lenders.
DueDilligence 4y ago
[dead]

99 points by leotravis10 4y ago

My author friend had to go to court to get paid royalties for audio-book rights, which she had not sold. When Kindle(?) would read any book, it became problematic. Nobody to blame here; existing contracts just didn't know what innovations were coming. And business depends upon contracts, like it or not.

chinabot 4y ago

Crazy Decision, but that's the way the world is turning. This is another reason I'm coming to believe I am eventually going to be shafted badly by being in the kindle ecosphere. I have been a user since 2010 with no issues for the first ten years. Then came the recent update the middle of last year whereby I can no longer lend my books out to my friend, this was a big blow as we used to exchange books we liked. Recently I have also noticed that the device seems to want to turn on Wi-Fi for me to open books I have downloaded already onto the device which also has sufficient memory to store them, this seems more to be the ones I haven't read for a few months. The final nail in the coffin came a few weeks ago when I wanted to re-read a book I had read and it asked me to purchase it, thinking I must have read it on kindle unlimited which I had subscribed to and cancelled a few years earlier I pressed buy now, after reading it I looked back through my purchase history and found the same book I had bought five years before. Not even sure who to call on this one but prior to this if I owned the book already it just came up with the read-now button not the buy-now! I am almost certain that sometime in the future if the kindle doesn't phone home after a period the books on it will disappear. I managed to get some books off it to epub format, but the most recent updates have somehow stopped the program that did that from working. Bottom line is I love my kindle, but I am only getting epub books, keeping them on the PC and emailing them to the device.

galkk 4y ago
> I am almost certain that sometime in the future if the kindle doesn't phone home after a period the books on it will disappear YouTube app video downloads work exactly that way, same for prime video, I believe
crooked-v 4y ago
> The final nail in the coffin came a few weeks ago when I wanted to re-read a book I had read and it asked me to purchase it, thinking I must have read it on kindle unlimited which I had subscribed to and cancelled a few years earlier I pressed buy now, after reading it I looked back through my purchase history and found the same book I had bought five years before. This is almost certainly the publisher's fault, by way of putting up a different listing for the same book. You've probably got two different versions of the book in your library now.
alpaca128 4y ago
> the device seems to want to turn on Wi-Fi for me to open books I have downloaded already onto the device They probably weren't downloaded. My Kindle has been doing this thing for years: it only seems to download enough metadata to show a newly purchased book in the list, but the actual book won't download until I try to read it. I don't know why because it's utterly stupid, I don't know under what circumstances it does this and when it downloads the entire book by itself, it seems to be completely random. > I managed to get some books off it to epub format, but the most recent updates have somehow stopped the program that did that from working. And 5 years later companies will whine to the media about evil piracy again.
CobrastanJorji 4y ago
Is it crazy? Copyright is the right to make a copy. Libraries can buy and loan books because none of that involves making a copy. Digitizing a book and loaning digital copies does involve making copies, so it's a violation of copyright. Seems very straightforward to me. Am I missing some major detail or catch or something? Sure, there's an exception for "fair use," but I don't think fair use has ever covered making a complete copy of a work and giving it to someone else. And of the four factors judging fair use, the "amount and substantiality of the portion taken" one fails completely here. Doesn't seem surprising.
- Dylan16807 4y ago
  > Is it crazy? Copyright is the right to make a copy. Libraries can buy and loan books because none of that involves making a copy. Digitizing a book and loaning digital copies does involve making copies, so it's a violation of copyright. Seems very straightforward to me. Am I missing some major detail or catch or something? The problem is that viewing copies that way completely trashes the rights people have for their digital goods. Displaying it is technically a copy. Reselling it is technically a copy. Format shifting is technically a copy. Lending is technically a copy. If I make an ephemeral copy, and keep the original in a vault the entire time the ephemeral copy is loaned out, that should be good enough. (Maybe you want a minimum loan period, details details, but something that works just like a traditional library shouldn't be illegal for digital assets.)
  - CobrastanJorji 4y ago
    > the rights people have for their digital goods People don't have any rights to their digital goods. Doesn't exist. They are not. It is wonderful to discuss ideas for how the system SHOULD be. I 100% support a legislated solution for digital ownership of copies of things, with a right to transfer and so on, but that's sadly a hypothetical discussion about what could be.
    - TheCoelacanth 4y ago
      That is insanity that was never envisioned when copyright was created. First-sale doctrine is well established. If you buy a book, you can give it away, sell it or lend it to anyone you want. Those rights should not simply disappear when you start dealing with a digital book.
nebula8804 4y ago
Sounds like someone needs to develop an alternative OS for the device that does away with all this nonsense.

tedunangst 4y ago

Did the judge actually say that all libraries everywhere are illegal? Or am I just supposed to infer that and conclude they must be crazy?

ksherlock 4y ago
Of course not. The ruling was that the copyright owner has exclusive rights to prepare derivative works. IA scanning and lending is creating a derivative work without transformative value. Fair use doesn't apply. End of case. https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf?fbclid=IwAR1rM4_dbpOOKJUi5fRa112PSyoEYcd1z_ePwpL4WUEgA1FVIiWuiLCRs8w https://storage.courtlistener.com/recap/gov.uscourts.nysd.53...
- OrvalWintermute 4y ago
  Not so fast. I think your simplification resulted in oversimplification. > The Publishers task aggregators with ensuring that a library lends its ebooks only to the library’s members. Id. ¶¶ 123, 125. The Publishers also require aggregators to employ approved “digital rights management” (“DRM”) software and other security measures to prevent unauthorized copying or distribution of ebook files. Id. ¶ 126. Demand for library ebooks has increased over the past decade. In 2012, OverDrive, the largest aggregator, processed 70 million digital checkouts of ebooks and audiobooks; by 2020, that number had risen to 430 million. Id. ¶¶ 119, 164.
gs17 4y ago
Nope, this is just about digitizing books and renting out the e-books as an alternative to the physical copies.

suddenclarity 4y ago

The headline isn't mentioned in the opinion piece? What the judge ruled was: > An ebook recast from a print book is a paradigmatic example of a derivative work. In other words, if a library buy a book, they can't just digitise it and share it without permission.

tobyjsullivan 4y ago
I'd go so far as to say the article directly contradicts the headline. The author spends an enormous amount of time explaining how the rights of "end users" have been cemented, such as the right to change formats. If a consumer lends a book, they are, by definition, no longer the "end user" and none of that precedent applies. It's probably true that anyone can lend a book but that's not an "end user" right. In fact, that allowance is the very reason libraries can exist in the first place. The case and article are about something completely different (making copies, then distributing the copies). Odd headline.
- westurner 4y ago
  > that allowance Right to property: https://en.wikipedia.org/wiki/Right_to_property https://en.wikipedia.org/wiki/Right_to_property
JohnFen 4y ago
My understanding is that (in the US), it's legal to make copies of a copyrighted work you legally possess. However, all of the copies must be treated as an indivisible whole. If you sell, lend, or give the work away, you must include all copies along with it (or destroy them).
- PaulDavisThe1st 4y ago
  The law under which the suit was bought essentially concerns format-shifting before distribution/lending.
lupire 4y ago
Flag the submission for misinformation trolling

wesleychen 4y ago

The author really twists logic to make her point. Her main argument against the ruling is that copyright's historical purpose is to spread knowledge, so it should not be used to block controlled digital lending. However, the history laid out in the article is that "What persuaded early state and federal government actors to establish copyright was authors’ reluctance to release their books publicly without the ability to stop the then-rampant piracy by publishers." This original application for copyright is strikingly similar to its current use to prevent digital copying and distribution. The CDL issue with the IA has been litigated multiple times on this forum by now, and the consensus seems to be that publishers weren't going to do anything about CDL until the IA started freely distributing digital copies in the early stages of the Covid pandemic. As someone who reads, I strongly support what the IA is doing, but as someone who produces content, I also want some way of controlling its usage. I wish the author would take a more nuanced approach to this topic rather than misconstruing reality to make the other side seem unreasonable.

Dylan16807 4y ago
> but as someone who produces content, I also want some way of controlling its usage. Nobody at this point is making an argument in favor of uncontrolled lending. And the judge is arguing against controlled lending.
- rcoveson 4y ago
  The judge barely has to argue; the law on this seems totally clear-cut[0]. 108(c)(2) says: > ...any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives. My understanding is that controlled digital lending is its own thing, with its own procedures and licenses. What IA did here was come up with its own controlled digital lending scheme based on ownership of print copies. This doesn't look like one of those tense cases where judges add to the law with rulings that involve reading in-between the lines. This looks like a case where the judge read the law, saw that the law discussed exactly what the defendent did, and so ruled according to the law. 0. https://www.law.cornell.edu/uscode/text/17/108 https://www.law.cornell.edu/uscode/text/17/108

lxgr 4y ago

It's almost as if copyright law, tailored to a specific medium, doesn't translate effortlessly to another, newer, completely different one! Skeuomorphic reductionism has outstayed its welcome on both sides of the debate, I'm afraid.

015a 4y ago

I overall agree with the ruling against IA. And to be clear: I'm a pretty staunch open source / libre software advocate. > The IA maintained that it could, as long as it lent only the same number of copies it owned and locked down the digital copies so that a borrower could not copy or redistribute them. Let's drop the act and be real here: You cannot lock down digitally distributed files in any way which offers reasonable guarantees that someone remotely sophisticated couldn't copy them. Considering that, I think its necessary that the publishers and authors have approved and accepted (1) the distribution itself, and (2) the systems which protect the copying of their work. In the digital world, for example: they've generally approved of Kindle as a digital distribution retailer, and they've approved of the Kindle System (DRM, locked down hardware, etc). They clearly did not approve of IA distributing their work, nor I assume did they approve of whatever DRM scheme IA came up to help protect themselves from legal retribution. (sidenote: the fact that IA put DRM on it at all kind of whispers to me that they knew this lawsuit would be coming, they knew what they were doing had shaky legal foundations, and while I have an immense amount of respect for what they do and their mission, knowingly breaking the law isn't respectable even if you disagree with it). But step out of the digital world and into the physical one. The same rules apply. Publishers would generally approve of Barns and Noble distributing their books; easy enough. But to the second point, implicitly: Publishers have also accepted the inherent physical laws of our universe which protect, not wholly but significantly, works from being copied at scale. There's no DRM protecting physical books; no swipe of your ID card to unlock them; its just physically hard to copy them, its physically hard to take a book off your shelf and hand it to a friend in-person. When you view those facts relative to how easy it is to copy even DRM-protected eBooks, or how easy it would be to just "send" a digital book to anyone, anywhere on the planet, at any time, instantly; it makes a lot more sense to me why publishers are scared of allowing things like this. In other words: Applying the metaphor of a physical book to a digital one is a fundamentally misguided action because digital books are fundamentally different in the ways copyright has historically cared about. If a man in Norway messages me and asks to borrow my physical copy of Hunger Games; I'm going to say no. If he asks to borrow my digital copy, all hypothetically handled in Kindle, just enter his email, I can click a button to "get it back" at any time, instantly: I'm going to say Yes.

the_third_wave 4y ago

In that case a large enough group of people coming together, each of them buying a single book which they then lend out to others can create a library, yes? For the price of a single book you can gain access to first hundreds, then thousands, then tens of thousands, then hundreds of thousands of books. All it would take is for someone to organise those people, keeping a list of requested books, presenting potential members with a choice of books to buy to join this modern-day library. Does the law state people have to keep their books at home? If not they can be kept in a central storage facility which can be accessed by members and/or from where books can be mailed to lenders.

DueDilligence 4y ago

[dead]