By scanning and lending a book, they are reproducing a copyrighted work and transmitting it to someone else without authorization from the copyright holder.
It's not up for interpretation, the law is very clear and explicit on this point.
Their argument is logical and coherent, and it makes sense on its own, but that doesn't make it any less wrong.
There is precedent that copying to another format for the original use is not copyright infringement. Like copying your old CDs to your phone to listen the go. So the IA should have a strong case that digital lending is such legit copying for the original use of lending.
Copying as a matter of using the software or making archives of the software is legal.[1] There is also no practical way to police what happens and never leaves the inside of your home.
Distribution of copied software on the other hand is very illegal, and is what most so-called "archivists" (including the Internet "Archive") run afoul.
Internet Archive would be having no legal issues if they simply copied software they have a right to possess and then stored the copies in their own servers inaccessible to anyone but themselves, also known as archiving.
And no, archives do not need to be publically accessible.
> Distribution of copied software on the other hand is very illegal, and is what most so-called "archivists" (including the Internet "Archive") run afoul.
Clearly libraries distribute copies of copyrighted works all the time -- it's kind of their whole purpose. Lending books.
Now suppose the library owns some VHS tapes and makes one DVD out of each tape, then lends out the DVDs to patrons instead of the tapes because the patrons have DVD players but not tape players. That seems like a reasonable thing for them to do. What can you cite that says that isn't fair use?
The American Library Association addresses the VHS to DVD question in a FAQ on their website. There are more in depth discussions of how libraries can legally switch between formats linked on that page. Of course, IA thinks their use is different, but the VHS analogy doesn’t work.
> Reproducing a VHS to DVD without the prior permission of the rights-holder is an infringement of copyright. This kind of reproduction is not exempt because it is not "fair use" and it does not qualify as a lawful reproduction. However, in a situation where the VHS tape is lost, stolen or deteriorating or is in an obsolete format (a 3/4" tape is obsolete because the equipment is no longer being sold, but a VHS tape is not obsolete) and is not available in the DVD format in the market for a reasonable cost, the library can make a reproduction. But if the reproduction is in a digital format (DVD is digital), then that copy cannot leave the library premises.
> The American Library Association addresses the VHS to DVD question in a FAQ on their website.
An answer in which they cite no statutes or cases for the notion that converting VHS to DVD isn't fair use.
There is a difference between "we're recommending that you not do something that might cause you to have to establish a precedent in court" and "here's the citation to the court case where this was decided." It's only the second one that tells you the answer instead of some risk-averse institution's opinion.
Copying something in its entirety is not Fair Use. One of the requirements of Fair Use is that you copy as little as required for your purpose.
For example, copying a line or two from a book for use in a book review or citation is Fair Use. Copying entire paragraphs or even the entire book is not Fair Use.
>How much of someone else's work can I use without getting permission?
>Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See, Fair Use Index, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.
I imagine they would be expected to treat the VHS and DVD as a single item, not loaning out both at the same time. This is what CDL is, and has been practiced without major issue by digital libraries including the IA. What they did here was remove that restriction and loan out an unlimited number of simultaneous copies of a given book, something which a physical library cannot do
> What they did here was remove that restriction and loan out an unlimited number of simultaneous copies of a given book
Again: no; that's not what this appeal or the article is about. What Publisher's Weekly is reporting on here is their controlled digital lending program and the court's decision that found that was illegal—not the "National Emergency Library".
You're moving the goalposts. Your description of the present issue ("What they did here was remove that restriction and loan out an unlimited number of simultaneous copies of a given book") is inaccurate and misleading. That's not what this appeal is about.
By scanning and lending a book, they are reproducing a copyrighted work and transmitting it to someone else without authorization from the copyright holder.
It's not up for interpretation, the law is very clear and explicit on this point.
Their argument is logical and coherent, and it makes sense on its own, but that doesn't make it any less wrong.