6 ms·

Full disclosure: I am an author, and some of my books have been lent by the IA. I strongly opposed the IA's uncontrolled digital lending at the start of the pa

by jawns 3y ago

Full disclosure: I am an author, and some of my books have been lent by the IA. I strongly opposed the IA's uncontrolled digital lending at the start of the pandemic. I thought its "Emergency Library" was very clearly illegal and tactically very stupid. On the other hand, I fully support the concept of controlled digital lending, about which the current appeal is concerned. As an author, I don't particularly care about whether a book that a library legally acquired is lent as a physical copy or a digital copy, as long as it is controlled the same way as physical copies are controlled (i.e. one person at a time can have the copy checked out). True, my publisher might consider the distinction important, because e-book licenses are a valuable revenue stream for them, but my interests are satisfied as long as the physical copy is legally acquired. Yet although I support CDL conceptually, I think more needs to be done by Congress to codify the practice; going solely by existing case law, I can see why the judge ruled against IA. In particular, the IA's argument that their CDL program was transformative, as fair-use law defines the term, is extremely shaky. What they're saying is that they employed a novel distribution method -- but that method doesn't actually transform the copyrighted work creatively; the words remain exactly the same. The term "transformative," when applied in a fair-use analysis, implies altering the material in some way, not just introducing a new transmission method.

AnthonyMouse 3y ago
> I thought its "Emergency Library" was very clearly illegal and tactically very stupid. I still don't get why people hate this so much. The most important fair use factor is the effect on the market for the original work. Obviously if the "Emergency Library" was permanent it would have a major effect, because libraries could buy one copy of a book and lend it to everybody, instead of having to buy enough that everyone who wants to borrow one at once can have a separate copy. But it was never intended to be permanent, and as a consequence it wouldn't have materially affected the number of books that libraries buy. As far as I know it hasn't even been established that the number of books they lent out was greater than the number locked away in closed libraries everywhere during COVID, and it seems intuitively likely that it wasn't (that's a lot of closed libraries). So the argument is that because it's an emergency and temporary, they can go on an approximation instead of having to do the exact accounting during the emergency situation. Which doesn't seem that crazy.
- jawns 3y ago
  Why should IA get to attribute to itself the inventories of closed public libraries that had no association with IA? What if those libraries wanted to engage in their own digital lending? It's like the difference between short selling (legal) and naked short selling (illegal). The reason the latter is illegal is because it involved acting as if you owned something that you didn't actually own. If the IA wanted to treat other libraries' books as its own for the purpose of CDL, they should have (temporarily) acquired a right to do so by entering into an agreement with those libraries. It's crazy to think that any one entity can unilaterally claim that it is the conduit for distribution of the titles of other libraries besides its own, shuttered or not. My library is closed between 5pm and 10am every night, and twice a week during the day. Should the IA be able to temporarily claim my library's inventory as its own during those periods?
  - AnthonyMouse 3y ago
    > Why should IA get to attribute to itself the inventories of closed public libraries that had no association with IA? What if those libraries wanted to engage in their own digital lending? It was reasonable to expect that most of them didn't have the technical capacity to accomplish that in the available timeframe. > It's like the difference between short selling (legal) and naked short selling (illegal). The reason the latter is illegal is because it involved acting as if you owned something that you didn't actually own. The reason the latter is illegal is that the person you borrow the stock from is getting paid interest to compensate for the risk you become insolvent before you give it back, but the person you're selling it to isn't. The author is at no risk of "losing principal" in any analogous way. > If the IA wanted to treat other libraries' books as its own for the purpose of CDL, they should have (temporarily) acquired a right to do so by entering into an agreement with those libraries. They were closed and possibly unable to be contacted (you call the phone number of a closed library and there is nobody there to answer it), and it was an unexpected event that was having immediate consequences whereas that kind of negotiating was likely to have taken longer than the duration of the emergency to complete.
    - g-clef 3y ago
kmeisthax 3y ago
You and your publisher do not have aligned interests. Your interest is to be read, because you being read gets you money. Your publisher wants a horde of gold to sleep on so they can rent it out. The result is that publishers have the utmost contempt for libraries, but authors love them, because the libraries can direct readers to books outside of publisher control. Codifying CDL is never going to happen because it's a loophole big enough to drive a The-Pirate-Bay-branded truck through. It would be easier to abolish copyright. With first sale on physical goods, it's obvious where the first sale rights end and infringement of copyright begins. With digital, literally everything is an infringing act of copying[0], so any rule of how many copies can be made (e.g. "one to one") needs full-supply-chain enforcement. It'd be very easy to cheat the CDL system without even generating any evidence that cheating had happened. For example, in the IA case, even when IA was enforcing their own CDL rules, the libraries they had partnered with weren't as careful. There were several libraries that were caught not taking the physical backing copies of loaned e-books out of circulation, none of whom were actually removed from the CDL program. I mean, the physical book doesn't stop existing when you loan out the e-book, you just have it on faith that we pretend it's been shoved inside the wires until that e-book copy expires. What we actually need to fix libraries' ebook programs is collective bargaining and compulsory licensing programs. We already have this for radio: there's a part of the copyright office that decides how many fractions of a penny to charge a radio station every time they play a song, and as a result, radio stations can play whatever[1]. The current way ebook lending happens with libraries is through Overdrive, a private corporation that acts as a platform for trading DRM license files around, but because it's private, it all happens with consent of the publishers. Libraries have been turned into a glorified "Netflix of books" because the publishers can play games with what parts of their collection are available for rental. Instead, what we could do[2] is the radio thing. In lieu of a formal licensing agreement with a handful of consenting publishers, you have a collection society or government office that sets the e-book rental rates and handles payment. Libraries that want to rent out e-books can do so using whatever technology works[3], even with scans of orphan works if necessary, not just one particular e-book vendor's app that only works with officially delivered files. And while I'm suggesting copyright reform ideas that might never happen, we should also ban copyright assignment. [0] Or at least the Ninth Circuit says so, and they've never been wrong about anything, right? [1] Though in practice, they only play like five songs, but that's Clear Channel's fault - the record labels don't get to say no here. [2] with the consent of Congress, yada yada [3] In practice this would almost certainly have to mandate DRM to turn the rental copies off at the end of the rental period, which is , but that's at least something that can be enforced by a third party.
iudqnolq 3y ago
One problem for IA was that it came out in this lawsuit that CDL wasn't actually controlled. They were counting paper books they didn't have control over and that people were still reading in the pool they lent out digitally. I have a lot of sympathy for the IA, but they got quite sloppy.

by jawns 3y ago

AnthonyMouse 3y ago

> I thought its "Emergency Library" was very clearly illegal and tactically very stupid. I still don't get why people hate this so much. The most important fair use factor is the effect on the market for the original work. Obviously if the "Emergency Library" was permanent it would have a major effect, because libraries could buy one copy of a book and lend it to everybody, instead of having to buy enough that everyone who wants to borrow one at once can have a separate copy. But it was never intended to be permanent, and as a consequence it wouldn't have materially affected the number of books that libraries buy. As far as I know it hasn't even been established that the number of books they lent out was greater than the number locked away in closed libraries everywhere during COVID, and it seems intuitively likely that it wasn't (that's a lot of closed libraries). So the argument is that because it's an emergency and temporary, they can go on an approximation instead of having to do the exact accounting during the emergency situation. Which doesn't seem that crazy.

jawns 3y ago
Why should IA get to attribute to itself the inventories of closed public libraries that had no association with IA? What if those libraries wanted to engage in their own digital lending? It's like the difference between short selling (legal) and naked short selling (illegal). The reason the latter is illegal is because it involved acting as if you owned something that you didn't actually own. If the IA wanted to treat other libraries' books as its own for the purpose of CDL, they should have (temporarily) acquired a right to do so by entering into an agreement with those libraries. It's crazy to think that any one entity can unilaterally claim that it is the conduit for distribution of the titles of other libraries besides its own, shuttered or not. My library is closed between 5pm and 10am every night, and twice a week during the day. Should the IA be able to temporarily claim my library's inventory as its own during those periods?
- AnthonyMouse 3y ago
  > Why should IA get to attribute to itself the inventories of closed public libraries that had no association with IA? What if those libraries wanted to engage in their own digital lending? It was reasonable to expect that most of them didn't have the technical capacity to accomplish that in the available timeframe. > It's like the difference between short selling (legal) and naked short selling (illegal). The reason the latter is illegal is because it involved acting as if you owned something that you didn't actually own. The reason the latter is illegal is that the person you borrow the stock from is getting paid interest to compensate for the risk you become insolvent before you give it back, but the person you're selling it to isn't. The author is at no risk of "losing principal" in any analogous way. > If the IA wanted to treat other libraries' books as its own for the purpose of CDL, they should have (temporarily) acquired a right to do so by entering into an agreement with those libraries. They were closed and possibly unable to be contacted (you call the phone number of a closed library and there is nobody there to answer it), and it was an unexpected event that was having immediate consequences whereas that kind of negotiating was likely to have taken longer than the duration of the emergency to complete.
  - g-clef 3y ago

kmeisthax 3y ago

You and your publisher do not have aligned interests. Your interest is to be read, because you being read gets you money. Your publisher wants a horde of gold to sleep on so they can rent it out. The result is that publishers have the utmost contempt for libraries, but authors love them, because the libraries can direct readers to books outside of publisher control. Codifying CDL is never going to happen because it's a loophole big enough to drive a The-Pirate-Bay-branded truck through. It would be easier to abolish copyright. With first sale on physical goods, it's obvious where the first sale rights end and infringement of copyright begins. With digital, literally everything is an infringing act of copying[0], so any rule of how many copies can be made (e.g. "one to one") needs full-supply-chain enforcement. It'd be very easy to cheat the CDL system without even generating any evidence that cheating had happened. For example, in the IA case, even when IA was enforcing their own CDL rules, the libraries they had partnered with weren't as careful. There were several libraries that were caught not taking the physical backing copies of loaned e-books out of circulation, none of whom were actually removed from the CDL program. I mean, the physical book doesn't stop existing when you loan out the e-book, you just have it on faith that we pretend it's been shoved inside the wires until that e-book copy expires. What we actually need to fix libraries' ebook programs is collective bargaining and compulsory licensing programs. We already have this for radio: there's a part of the copyright office that decides how many fractions of a penny to charge a radio station every time they play a song, and as a result, radio stations can play whatever[1]. The current way ebook lending happens with libraries is through Overdrive, a private corporation that acts as a platform for trading DRM license files around, but because it's private, it all happens with consent of the publishers. Libraries have been turned into a glorified "Netflix of books" because the publishers can play games with what parts of their collection are available for rental. Instead, what we could do[2] is the radio thing. In lieu of a formal licensing agreement with a handful of consenting publishers, you have a collection society or government office that sets the e-book rental rates and handles payment. Libraries that want to rent out e-books can do so using whatever technology works[3], even with scans of orphan works if necessary, not just one particular e-book vendor's app that only works with officially delivered files. And while I'm suggesting copyright reform ideas that might never happen, we should also ban copyright assignment. [0] Or at least the Ninth Circuit says so, and they've never been wrong about anything, right? [1] Though in practice, they only play like five songs, but that's Clear Channel's fault - the record labels don't get to say no here. [2] with the consent of Congress, yada yada [3] In practice this would almost certainly have to mandate DRM to turn the rental copies off at the end of the rental period, which is , but that's at least something that can be enforced by a third party.

iudqnolq 3y ago

One problem for IA was that it came out in this lawsuit that CDL wasn't actually controlled. They were counting paper books they didn't have control over and that people were still reading in the pool they lent out digitally. I have a lot of sympathy for the IA, but they got quite sloppy.