SFWA Finally Notices Internet Archive’s Decade Old Open Library, Decides It’s Piracy

SFWA Finally Notices Internet Archive's Decade Old Open Library, Decides It's Piracy Digital Library Intellectual Property The Authors Guild

I like to stay on top of relevant news and development in the publishing industry, but sometimes I might miss a story and only find out weeks or months later. I used to kick myself for missing stuff, but in the future I will remind myself that at least I am not as bad as The Authors Guild and the SFWA.

These two august organization have just noticed that the Internet Archive is running a lending library called the Open Library where members can borrow digital copies of the print books that either the IA has archived in its warehouses, or a partner library has in its catalog. (There's also an extensive catalog of public domain titles.)

Teleread reported back in December that The Authors Guild regarded it as piracy, and this week the SFWA has weighed in. They're calling it piracy:

The Internet Archive (Archive.org)  is carrying out a very large and growing program of scanning entire books and posting them on the public Internet. It is calling this project “Open Library,” but it is SFWA’s understanding that this is not library lending, but direct infringement of authors’ copyrights. We  suspect that this is the world’s largest ongoing project of unremunerated digital distribution of entire in-copyright books. An extensive, random assortment of books is available for e-lending—that is the “borrowing” of a digital (scanned) copy.  For those books that can be “borrowed,” Open Library allows users to download digital copies in a variety of formats to read using standard e-reader software. As with other e-lending services, the books are DRM-protected, and should become unreadable after the “loan” period. However, an unreadable copy of the book is saved on users’ devices (iPads, e-readers, computers, etc.) and can be made readable by stripping DRM protection. SFWA is still investigating the extent to which these downloadable copies can be pirated. Unlike e-lending from a regular library, Open Library is not serving up licensed, paid-for copies, but their own scans.

The thing that gets me about this story is not the legal issue, although I will address it.

What surprised me about the SFWA's missive is that the Open Library is not a new endeavor.  I first wrote about it in 2010, but the program initially launched in 2007. It has been running for ten years, and the SFWA only just now noticed.

For some reason I still don't understand, few really pay attention to the activities of the Internet Archive. To name one example, I've never read stories on its status as a pirate site. (I'm not referring to its archival activities but all the pirated copies uploaded by users; search for Harry Potter, and you will understand what I mean.)

That collective blind spot means that the IA can toil along in obscurity for years before anyone other than the occasional blogger raises legal questions about its programs.

And that is unfortunate because it leaves critical legal issues unresolved.

We can't know for certain until an appeals court rules on the matter, but what the Open Library is doing is probably illegal. I could find no relevant case law on lending the digital copies of physical books. The closest is a part of copyright law that allows libraries to digitize books in its collection and let patrons use digital copies, but that only covers use when the patron is in the library building itself, while the Open Library has no such restriction.

But there have been several cases where startups have bought DVDs in order to stream the DVDs under a one copy, one stream model that is functionally very similar to the Open Library's system. All of the startups I could find were sued, lost, and either shut down or changed their business model.

It pains me to say this, but at this point it looks like the Open Library is in fact a massive piracy operation.

On the other hand, there is also a chance the IA will convince a judge otherwise when they are sued for copyright infringement. Remember, Google won the Google Books case, and had its scanning activities legalized as fair use ex post facto. The IA might have the same luck, and in fact the IA has a stronger case than Google did; the latter had a commercial interest in its scans, while the IA is a non-profit out to serve the public good.

So really, at this point the legal case is a coin toss.

image by Jan David Hanrath

Nate Hoffelder

View posts by Nate Hoffelder
Nate Hoffelder is the founder and editor of The Digital Reader: He's here to chew bubble gum and fix broken websites, and he is all out of bubble gum. He has been blogging about indie authors since 2010 while learning new tech skills at the drop of a hat. He fixes author sites, and shares what he learns on The Digital Reader's blog. In his spare time, he fosters dogs for A Forever Home, a local rescue group.

21 Comments

  1. Marion Gropen9 January, 2018

    I have always thought that Google did most of the nasty stuff that it did do with Google Books simply and only because it needed to get that ruling on the scan and index for search.

    After all, they made no big deal about terminating things like selling copies of their scans without permission.

    I can tell you that without provocations like that, none of the bigger players in the book business had ANY intention of suing them. We all knew how the search index ruling was going to come down.

    Reply
  2. DaveMich9 January, 2018

    FWIW, OpenLibrary books are one-at-a-time lends. As well, often their scans are almost unreadable.

    Reply
  3. BDR9 January, 2018

    In America, you can’t just sue somebody and win, you have to have standing. That means you have to have been personally wronged and harmed. Those associations? Nope. An individual *author* or publisher might be able to sue … maybe … if they can show harm … but not a group unless it is a business which represents a client who has been harmed. No author or publisher has stepped forward, apparently.

    It’s also not clear how the article’s author got to the whole “appeals court” thing since, in order to *get* to an appeals court there has to be a lower-court judgment; which the article makes no mention of.

    In fact, ALL that appears to have happened, thus far, are 2 groups with way too much time on their hands bitching about alleged misbehavior, without doing anything more. Whining is one thing, suing someone is a whole different matter, being able to do something about it a different matter still.

    In other words, all hat no cattle.

    Reply
    1. Nate Hoffelder9 January, 2018

      In America, you can’t just sue somebody and win, you have to have standing. That means you have to have been personally wronged and harmed. Those associations? Nope.

      And yet somehow The Authors Guild (and the AAP) had standing to sue over Google Books. And anyway, I didn’t say TAG would sue; you jumped to conclusions.

      As for why the appeals court matters to me, it is because the Google Books, GSU Libraries, and Kirtsaeng cases all had the appeals court reverse, revise, or reject district court rulings on copyright infringement (sometimes repeatedly). So I have good reason not to put too much weight into district court rulings.

      Reply
      1. Mike D13 January, 2018

        Having looked up the Google Books fair use ruling, the Court of Appeals Second Circuit’s October 16, 2015, decision noted that two actual authors were also suing so there was no need to bother about whether the Authors Guild also had standing.

        Reply
  4. Marion Gropen9 January, 2018

    I could be wrong, and to be honest, I’m too lazy to look it up, but I think the Google suits were class action suits. They found authors or publishers who had books that had been infringed, and who were the “representatives” of the class.

    Reply
    1. Nate Hoffelder9 January, 2018

      Yes, that is more or less what I remember, too. But the thing is, TAG (and author groups in other countries) were the face of the class action. So while they didn’t have standing, one could say they were still suing Google.

      Reply
  5. Marilynn Byerly10 January, 2018

    Regarding BDR’s comments, AG and SFWA have every right to sue for their authors. AG, in particular, has filed all kinds of legal actions for authors. For example, the Google lawsuit.

    From what I have heard from other authors, a huge flurry of recently published books began to appear last year at Open Library which got everyone in the publishing industry’s attention. When authors sent DMCA complaints, they refused to take down the offending books. Only Amazon has had the clout to make them remove books. If a site like this refuses to be DMCA compliant, that opens them up to lawsuits like this.

    Reply
    1. Nate Hoffelder10 January, 2018

      ” If a site like this refuses to be DMCA compliant, that opens them up to lawsuits like this.”

      The DMCA is not relevant here. It only protects a site from the actions of its users; it does not protect a pirate site from legal liability for its own actions.

      Reply
  6. Joseph Sanchez10 January, 2018

    I spoke w Robert of the Open Library at a number of conferences over the years. Even as someone who was sympathetic to the concept, it always amazed me that they seemed to just think they could keep on doing it without licensing the materials. I was pushing copyright boundaries, but even back in 2009 when I first met Robert I remember thinking this can’t possible stand up in court.

    Reply
  7. Barney13 January, 2018

    I discovered the Open Library about 5 years ago. The Brooklyn Library linked to it as an “online resource” or something. I remember thinking “This is awesome but how could it possibly be legal?” I use it regularly. The scans aren’t pretty but it’s great to have access to so many out of print books.

    It was very dumb of them to bring attention to themselves by scanning recent books. I really hope they’re not shut down.

    Reply
  8. Barney13 January, 2018

    I meant to add that it’s interesting that the SFWA’s statement admits that DRM is useless, as it can be easily stripped. So why aren’t they making the same complaint about Kindle, Overdrive, etc. that use ineffective DRM?

    Reply
    1. Nate Hoffelder13 January, 2018

      because the others are using legally purchased ebooks

      the OL is using scans of print books

      Reply
      1. Barney13 January, 2018

        Yes, I understand that these are unauthorized ebooks. But the SFWA is specifically complaining that OL books can be easily pirated, when that’s equally true of authorized ebooks from Amazon, Overdrive, etc.

        Reply
  9. Marion Gropen13 January, 2018

    SFWA is not complaining about DRM on purchased books, because most people who crack DRM do it to keep a copy for themselves, and to be able to move it from machine to machine, or do backups, or . . .

    But an open library user who wants to keep a copy can get a copy to keep by cracking the DRM, which makes a new copy out there.

    Very few Amazon purchasers are buying one so that they can give it to a ton of others. That’s why a lot of publishers decline to use their DRM at all.

    Reply
  10. […] of entire in-copyright books.” The Digital Reader weblog issues out one nice irony. “The program initially launched in 2007. It has been operating for ten years, and the SFWA simplest simply now spotted.” They upload […]

    Reply
  11. […] Digital Reader blog points out one great irony. “The program initially launched in 2007. It has been running for ten years, and the SFWA only just now noticed.” They add that […]

    Reply
  12. Nate Hoffelder13 January, 2018

    I have been slashdotted

    sweet

    Reply
  13. […] has been some two weeks since the SFWA identified the Internet Archive's decade-old Open Library as a pirate site, and around a month since the UK […]

    Reply
  14. […] Kahle finally released a public statement on the controversy surrounding the Internet Archive's pirate site, the Open Library, Kahle  didn't say the Open Library was shutting down, and he didn't apologize, but he did make […]

    Reply
  15. […] Late last year The Authors Guild, followed shortly by the SFWA, publicly stated what many had noticed going on for years: the Internet Archive was using the Open Library to lend scanned copies of print books to the public. Many of the books were and are available through retailers and library services like OverDrive, but rather than buy legal ebooks the Open Library shared pirated copies. […]

    Reply

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