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.)
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