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The Writers’ Union of Canada Condemns The Internet Archive’s Pirate Site, "The Open Library"

Hard on the heels of news that the UK Society of Authors condemning the Internet Archive for piracy comes an announcement from The Writers’ Union of Canada expressing a similar opinion.

From the press release:

The Writers’ Union of Canada (TWUC) joins with our partner organizations, the U.S. Authors Guild (AG), the U.K.’s Society of Authors (SoA), and the International Authors Forum (IAF) in strongly condemning the unauthorized lending of books scanned for the website Internet Archive.

Web users around the world are able to access and borrow scanned books from the Open Library site. All that is required is a free membership in the online Open Library.

“TWUC has found copies of Canadian works in the Internet Archive’s Open Library,” added TWUC Executive Director John Degen. “We believe these are unauthorized scans and loans. The harm this does to the e-book market, and to genuine library sales, is incalculable.”

This story has been going for a little over a year now, and it recently flared up again about two weeks back when The Authors Guild issued a statement criticizing the legal argument the Internet Archive made in defense of its piracy, and noting that the Internet Archive was no longer responding to DMCA notices.

I read that statement at the time but didn’t really say anything because I wanted to work out my position on this issue.

While I completely support the legal argument cited by the Internet Archive, I do not support how the IA is interpreting that argument.

The Internet Archive is trying to use an as yet unproven legal argument called "controlled digital lending" as legal cover for The Open Library. CDL uses existing rulings and US copyright law to make the case that there is a fair use argument for libraries scanning the print books in their collection, and lending the scanned copies in controlled circumstances.

This is a solution to the problem of mid-20th century books that are out of print and may never be re-released; CDL gives libraries the option of sharing a digital copy while preserving their print copy. In this limited niche case CDL is a boon to the public, and furthermore it is quite similar to what the HaithiTrust and other libraries are already doing.

Let me be clear: CDL is a good thing in specific situations, and it will benefit the public as a whole. It deserves your support.

The Internet Archive, on the other hand, is trying to use CDL to justify the general case of scanning print books and lending the copies through The Open Library.

That is not the same thing.

The Internet Archive is scanning and lending books that were published as recently as three and four years ago. These books are available both in print and digital, through both retail and library channels, so there was never any concern that the books might be unavailable or were in need of rescue – not in any way, shape, or form.

You cannot make a sound argument that CDL is intended to cover what the Internet Archive is doing. If nothing else, lending copies to anyone anywhere in the world is a violation of the very concept of "controlled" digital lending.

Both the Authors Guild and the Society of Authors have created online open letters to Internet Archive about the unlicensed lending of scanned books(here and here). You should join the letters.

image by vl04 via Flickr

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Dilsia January 23, 2019 um 4:35 pm

I’ve downloaded books from the Internet Archive and they are awfully scanned, too many extraneous characters impossible to read.

Harmon January 23, 2019 um 10:21 pm

Judging from the article & links, the argument must be that if I have a print copy of a book, and make an electronic copy, I can share the electronic copy while retaining the print copy. If that’s a fair use argument, it pretty obviously fails, at least in the US. It’s not one of the listed uses permitted by 17 USC 107. (criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research)

I can make an electronic copy of a book I own without violating copyright, so long as I keep it for my own use. Besides, who would ever know. Things get gray if I send the electronic copy to family & friends. But sending a copy to an unrelated person (in the language of lawyers, to someone who is not “the natural object of my bounty”) is pretty obviously a copyright violation.

CDL itself may make some sense, but that doesn’t mean it’s legal. If I, as an author, sell a library my book & it makes a digital copy to lend, I’ll sue and I expect I’ll win, at least In the US. There’s no fair use exception for that practice.

The IA is on safe ground with orphaned books as a practical matter, but nowhere else as far as I can see.

(Full disclosure: I’m a retired & nonpracticing lawyer, and when I worked I did tax law, not IP. I took an enjoyable dive into IP law several years ago, so what I’ve written could be out of date. Or I could just be wrong…)

Nate Hoffelder January 23, 2019 um 10:59 pm

Well, there is a part of US copyright law that says a library can scan a print book it owns and let patrons use the digital copy inside the library.

CDL is one step away from that.

Harmon January 23, 2019 um 11:52 pm

Yeah, but it’s too long a step to take without legislation, I’d think

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