As I understand it, libraries with CDL have purchased licenses for the works they allow to be checked out in this way and do not scan books and lend out their digital scans.
And those licenses expire, and are more expensive than physical books.
And of course, not every print book is available digitally, and not every ebook is available from the small number of vendors that license ebooks for borrowing to libraries.
The third party ebook vendors libraries make people use for ebooks loans can also require accounts and collect data on library patrons and what they read to use for marketing, push ads, and/or to sell. None of that bullshit happens with physical copies are loaned out either.
>And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"
No, it's a different situation. In contrast, the government public libraries legitimately purchased ebook licenses (aka "renting") from the publishers and then "loaned" out a limited # of simultaneous copies in a legal manner. The book publishers approved this arrangement.
The Internet Archive didn't do that. Instead, they "loaned" out digital scans of books they did not buy ebook licenses for and took it upon themselves to name it "Controlled Digital Lending". This method circumvents the book publishers which is the opposite of what government public libraries did.
EDIT reply to: >If they have the physical book how is this any different,
When I wrote, "different situation" , it's about the "legal difference" and not "philosophical difference".
- situation with govt public libraries: The book publishers did not sue the public libraries that legitimately purchase ebook licenses from them. The publishers receive payments from that arrangement so there's no lawsuit for "copyright violation".
- situation with Internet Archive: The book publishers sued IA for copyright violation by lending books it never purchased ebook licenses for. The circuit appeals court sided with the book publishers unanimously by a vote of 3-to-0.
Those 2 situations above are different legally such that whatever precedent that's set by IA losing the case doesn't affect govt libraries that have been purchasing legitimate ebook licenses. I was trying to clarify gp's incorrect statement which could spread misinformation: "And now there will be a legal precedent to shut down all CDLs of these "lots of libraries"
If they have the physical book how is this any different, it had to be purchased at some point or donated for them to acquire it. If anything I would argue they are doing more work for the publishers by creating an ebook from scans. I also think a sane interpretation of fair use would be that the scan is a new / derivative work that is transformative, but we'll never get there with the current legal climate. Philosophically I've always been there.
And yes, I would outright abolish copyrights if I could, so please don't try to what-if me, I won't care about the implications in the way you would want me to.
If anything, imo to be able to hold on to a copyright you should have a burden of proof that society benefits as a whole long-term from your work remaining copyrighted, and virtually nothing meets that burden of proof.
>If they have the physical book how is this any different, it had to be purchased at some point or donated for them to acquire it. If anything I would argue they are doing more work for the publishers by creating an ebook from scans
The publishers and the third party platforms libraries force people to use for digital lending can force ebook readers to create accounts and hand over their personal data and reading history and those platforms use that to push ads or sell that data to publishers and other third parties.
What the internet archive was doing didn't allow publishers to collect/sell that personal data, didn't give them the ability to limit/censor/remove titles at any time, and didn't allow them to charge excessive fees for the "privilege" of loaning the book electronically. From the stance of the publisher they risked losing a lot of money and power. From the stance of everyone else what the internet archive was doing was an improvement.
> I also think a sane interpretation of fair use would be that the scan is a new / derivative work that is transformative
The creative part being protected by copyright are the words, not the physical pages. You're not transforming the words; you're transforming the paper to bitmaps. All the words and concepts within them are the same. It's not transformative in the same way ripping a CD to an MP3 isn't transformative.
If I change the font for an ebook, have I meaningfully transformed it?
How is a single pixel of difference in potentially hundreds of pages of text a meaningful change? It isn't changing the characters or story itself in the slightest.
Please, defend that point as an actual argument that it's then somehow fair use to change one pixel of an ebook and have it be a meaningfully different work.
And those paying attention will see that the publisher-approved version of digital lending gives publishers a legal/technical off switch on the existence of libraries, to the extent libraries go digital. Is anyone here okay with this? Kahle/IA certainly aren't!
Exactly. The broader issue here is about control -- specifically, who has the right to alter the financial arrangement, at what time.
I think everyone can agree we've seen from academic publishing what a shitshow {public need} + {extractive private IP ownership} can be.
Requesting libraries to enter into agreements with publishers in order to loan copies of their books isn't in the public interest.
Because invariably these publishers will realize they can bump rates year over year. And then private equity will realize they can buy these rights holders for a secure income stream. And then the year over year price growth will accelerate.
And contrast this with physical first sale doctrine. (1) The library bought or was donated a copy of the book. (2) As long as they could store it, no publisher could tell them a damn thing about how they could and couldn't loan it.
This comment plus the parent changed my opinion on the case. They still may have gone too far be loaning out copies, but the fight to return to physical book loaning practices is worth it. Ownership and long-term availability matter.
Yea, I don't like the whole loaning out idea either. Loaning implies ownership. Corporate propaganda has done a good job of convincing people otherwise. I came across an article that was really good at explaining the issue of ownership around digital goods that people who want to have a balanced view of the situation should read. https://linustechtips.com/topic/953835-you-own-the-software-...
The biggest piece lost in the conversation around digital/IP rights is awareness of how it worked pre-digital.
First sale doctrine (in the US) said the buyer owned the physical copy and could resell or do what they wanted with that single copy.^
Obviously, that isn't portable to a zero-copy-cost digital realm.
However, the "buyers never actually own anything digital" modern reality is vastly different than the historical norm, in favor of publishers and platforms.
What was missed was the conversation around what baseline we should establish around digital ownership.
We've nibbled around the edges (you have a right to decrypt something you've purchased, in some cases), but we never clarified it sufficiently.
And without clarity, buyers only get whatever rights publishers/platforms decide to grant them.
IMHO, we'd be better served by establishing a clear floor of digital ownership rights, that no publisher or platform had the legal right to remove or obstruct.
That's how we did it previously, and it worked well...
^ There were some exclusions around mass/public broadcasting, but those were pretty limited.
> Obviously, that isn't portable to a zero-copy-cost digital realm.
I'm not sure how you figure that. Its still a sale. You might want to read though how much case law there is all over the world that conflicts with that conclusion. Read that post, it has plenty of examples how it doesn't matter if its digital.
Here is one in particular:
In a 2016 Australian case regarding Valve's refund policy for Steam, Australia's High Court carefully examined whether computer games sold through Steam are goods (and therefore property and consumer rights apply to them) or services (and therefore no property or consumer rights or apply to them), and concluded that they are fully goods, and that Valve doesn't merely sell a license to use the software, but in-fact sells the software itself, and that whoever buys a game from Steam becomes owner of the software that they purchased. Australia's High Court concluded: "Each of Valve’s challenges to the applicability of the Australian Consumer Law fails. The conflict of laws provisions in the Australian Consumer Law did not essentially carve out an exception for conduct by foreign corporations like Valve governed by a different contractual proper law. Valve supplied goods (which are defined as including computer software)."
It's incorrect to look at the concept of ownership from solely legal or solely technical perspectives, because reality is a joint application of both simultaneously.
What point is legal prohibition if technical implementation is trivial?
And what of legal requirements if technical implementation is impossible?
The unwritten assumption girding physical ownership was "... and it's non-trivial and expensive to physically copy a book."
With digital copying, that's no longer the case. Consequently, simply to maintain the same system the law would still need to change.
Unfortunately, in the back and forth between extreme positions, publishers used this difference to argue that ownership was no longer financially possible and usher us into the realm of rent-only.
PS: Valve maintains sufficient control of Steam-distributed apps that's a defensible position. A better case would have been GoG.
And you don't think that publishers having to be involved with digital lending is a problem? Libraries don't have to seek permission to lend paper books and they are not responsible for ensuring that those books aren't copied. Same should apply to the digital world.
