Authors Guild Continues To Battle The Present; Attacks Another Legal Service As 'Infringing'
from the i-can-hardly-wait-until-it-starts-battling-the-future dept
As the world and its accompanying technology continue to hum along at the pace of life, the Authors Guild is apparently of the mindset that being firmly entrenched in the realities of yesteryear is the only rational response. If anything, the trenches should be deeper. After hearing the various frontmouths proclaim everything from text-to-speech to lending e-books to be detrimental to the interests and income of all authors everywhere, one is hardly surprised to hear it decry another new service as “violating authors' fundamental rights.”
Nate Hoffelder at The Digital Reader has the details on the latest “threat” to the Authors Guild, a scanning service that converts customers' books into PDFs:
Publisher’s Weekly is reporting the Author’s Guild, publishing’s own rearguard Luddites, is now objecting to the services provided by 1DollarScan.
1DollarScan offers a cheap book scanning service. You mail them the book and they scan it and email you the PDF. Their process usually results in a destroyed book, so it isn’t of much use for rare and valuable books. But it does offer an opportunity to get an ebook for a title that might not be available digitally.
According to the Author’s Guild, what 1DollarScan is doing is illegal. PW reached out to Author’s Guild executive director Paul Aiken, and this is what he said: “If the information on its website is accurate, this is a copyright infringement service. Their fair use defense is laughable.”
I love it when someone in power spouts off about topics they clearly don’t understand, and Paul proceeded to dig himself a deeper hole: “There are differences between digitization projects of 1DollarScan and Google and HathiTrust, but they share this: each is subverting the author’s fundamental right to choose whether or not to make a work available digitally, and under what terms. Though it makes sense for most authors to enter the digital book market, digitization has clear risks. It’s not up to unlicensed third parties to choose whether to take those risks with an author’s work.”
Laugh all you want at the “fair use defense,” Paul, but I don't even think that's the real issue. This also sounds like it might involve the “right of first sale,” which is completely out of the authors' hands. I'm pretty sure that if I buy a Scott Turow hardcover, I can then rip it from its binding, shove it through the scanner and make my own PDF. From that point on, I can paste it all back together, cross out Turow's name and write “BY TIM CUSHING” all over the cover and put it in the 25-cent bin at the next garage sale, all without fear of litigious reprisal.
And what exactly is this phrase supposed to mean: “subverting the author's fundamental right to choose whether or not to make a work available digitally?” The authors can “exercise” this “right” all they want, but it doesn't change the fact that the technology exists and is cheaply available. And I love love love the irrational fear of piracy contained in “digitization has its clear risks.” Third-party services should just stop because sometimes bad things happen. Nice.
Hoffelder points out that, despite all the Guild bluster, it's really got nothing to stand on, legally:
What’s more, I seriously doubt that any copyright infringement suit against 1DollarScan will succeed. A basic reading of the website will tell you that the customer gives up the original book in order to get the PDF. As I see it, to show that a copy was made you’d have to show the judge the original book as well as the PDF. That’s going to be a little hard, given that the original book was likely destroyed as part of being scanned.
I don’t claim to be a lawyer, but I will bet dollars to donuts that so long as 1DollarScan maintains a process that’s one to one it’s going to be rather hard to convince most judges that they’re committing copyright infringement. But more importantly, it’s going to be hard to convince most readers… After all, no one would blink if the reader did it themselves. How could a service that does the exact same thing be illegal?
Once again, the Guild's almost-willful ignorance has reduced 1DollarScan into a vehicle for piracy. At the very least, the Authors Guild has convinced itself that a service many readers would find useful is “subverting” authors' “rights.” Being completely at odds with what your customers find both useful and morally acceptable isn't going to win you any new readers. Resolutely taking a hard line against technological advances only puts you further behind the curve.
The more the Authors Guild speaks up on issues like this, the more out of touch they appear. Its batting average at this point is so low that attentive readers are having a hard time remembering the last time it made contact. From the comment threads at the Digital Reader:
Yeah. That sounds about right.
Filed Under: books, copyright, scanning
Companies: 1dollarscan, authors guild
Comments on “Authors Guild Continues To Battle The Present; Attacks Another Legal Service As 'Infringing'”
I am not clear on the concept that a third party duplication service could be considered fair use. This service certainly seems like a way for people to make money on knocking out copyright material, and of course probably retaining a copy for themselves and their friends.
You don’t think they keep a copy? I would say they almost certainly have to keep one in case the client’s copy craps out.
I don’t think you can “fair use” this one Mike, sorry!
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Do you have any proof?
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So what’s the problem if they keep a copy so the user can get it again in case he gets a HDD crash or something? I’m pretty amused at how you think that all users are simply going to make billions of copies of the file and give it to the whole world. I think you must believe every person with a car uses it to transport drugs just because they can, right? No matter what you say the service is legitimate. What the users do with the digital copies does not concern the service provider and its not liable for it.
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… all of which is moot, as this would be more of a ‘first sale doctrine’ case rather than a ‘fair use’ case, and under first sale, once the book is sold, the author, publisher, and seller no longer have the right to tell the customer what they can do with it.
They can read it, they can sell it, they can tear it up and turn it into origami, and they can scan it and turn it into a .pdf version(although the last two are probably mutually exclusive).
All this company is doing it charging a convenience fee, so the person who owns the book doesn’t have to deal with the hassle of digitizing it.
As for your rather paranoid claims that they ‘keep a copy for themselves and friends’, either provide some proof of wrongdoing on their part, or try and remember to take your pills the next time before posting.
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I agree with you in large part. But as I said bellow, I’m not sure how the first sale doctrine would react with a format shift. If anyone has the American legal perspective on this I would love to know. It’s just that I can see an argument being made that the transformation is something exclusively within the scope of the author’s right or something to that effect.
As I said bellow, this is settled law in Canada and there would be no copyright infringement in this case if it were tried here.
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I don’t know about case law history on the topic, but this is already done in the US for people with disabilities. Educational institutions have hardware and software that scans books, does text-to-speech, highlights lines on screen for ease of reading, etc. The author or publisher have no say in this.
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I’m not sure why format shifting would magically be wrong with books but fine with the many ways its been done in the past with audio. The only holdup I know with format shifting is having to get around DRM. This is what makes ripping a MP3 off your CD just fine and dandy but ripping a video file off a DVD or BluRay illegal.
Thankfully there is no DRM on all my old paperbacks.
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Ripping video files off an optical disc is perfectly legal, its the fact the DMCA says its illegal to get past the DRM that’s the problem.
The only way the Author’s Guild could have a valid legal argument would be if the paper books that are being used in this service had some sort of DRM. They don’t. They’re made of paper. These books are sold to a customer and the publisher loses all control of those books at the time of sale.
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Guilty until proven innocent…that is the principle upon which our legal system rests.
/tard
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I don’t think you can “fair use” this one Mike, sorry!
I think they can, AC. Sorry!
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So following your tortured logic, when my 1st Edition copy of Carrie craps out the Authors Guild has a backup copy for me?
Oh they don’t?
When my Celine Dion CD (hey I use it to torture people) craps out the MPAA has a backup copy to send me again?
Oh they don’t?
*insert string of same logic over and over with each cartel.*
So then why do you make a silly claim not backed up with anything more than an assumption?
Oh because if its on the internet and involves a comptuer it can only be infringing.
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Well, not saying his whole argument is valid, but the site does keep a copy of the scan for backup if you purchase their Platinum service. It’s in their FAQ.
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So what?
Re: Unfortunate that the AC is probably correct
Given that the courts have no problem with Congress passing a law which makes it illegal (in some cases) to help someone to exercise his content-shifting rights (DMCA), I find it unlikely that they are going to suddenly make an earth-shaking precedent that making a copy for someone who, himself, could have legally made a copy, isn’t actually making a copy (or it’s fair use in some other way — there are four standard criteria by which fair use is decided, and the service in question would seem to only satisfy one of the four criteria, and even that one, perhaps, only partially).
Stupid? * Yes! * (More like mega-stupid, actually). It’s the same stupidity which causes Aereo to put up a tiny antenna for every subscriber, instead of just feeding “copies” from one central antenna.
And this is why the public is, more and more, understanding that copyright law is (in some ways) totally illogical and idiotic, and what will, in the end, undermine the public’s respect for it.
Re: Re: Unfortunate that the AC is probably correct
It’s not already undermined?
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First of all: This comment should NOT have been reported.
Now, then:
I am not clear on the concept that a third party duplication service could be considered fair use.
It is fair use to create a copy for your own personal use. But this service isn’t even allowing people to do that; it merely “format shifts” the books, and the original is destroyed in the process.
The only time it would be copyright infringement is if you distributed the format-shifted (digital) book.
This service certainly seems like a way for people to make money on knocking out copyright material, and of course probably retaining a copy for themselves and their friends.
If the service itself did that, then it would be infringing; if the people who use the service did that, they would be infringing.
But there is no allegation that the first happened. And in the second case, 1DollarScan might be held liable for contributory infringement, if it knew the customers would be distributing the books.
You don’t think they keep a copy? I would say they almost certainly have to keep one in case the client’s copy craps out.
So long as that copy isn’t distributed to the public, it isn’t infringing.
I don’t think you can “fair use” this one Mike, sorry!
The article was written by Tim, not Mike.
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“The only time it would be copyright infringement is if you distributed the format-shifted (digital) book.”
Not exactly. Unlicensed duplication, even without commercial distribution, is an issue. Calling it “format shifting” is a sneaky end run around reality – the book is damaged (and they choose not return it) because they are unbinding it. However, that does not fix the issue of commercial duplication (which is what they are charging $1 for).
Since they are duplicating things with clear copyright notices on them and doing so for a profit, well…
“But there is no allegation that the first happened. And in the second case, 1DollarScan might be held liable for contributory infringement, if it knew the customers would be distributing the books.”
The customer’s intent isn’t required here. Just making an illegal copy as part of a commercial business is an issue. They are not the owner of the book, therefore anything they do with it is outside of the license granted. That they almost certain end up retaining a copy of the scanned document is an issue (after all, they don’t send the file, they send a COPY of the file… which means they have it to).
“So long as that copy isn’t distributed to the public, it isn’t infringing.”
yes, but because the duplication is being done in public, by a for profit company, you don’t have to go all the way back to actual distribution to have an issue.
Plus, the copy is infringing in and of itself, because it’s an illegal copy made of the original work and distributed to the duplication company. You don’t have to have widespread distribution to make that part stick either.
Go back and look at the remote PVR and remote DVD player cases to get an understanding of the implications of adding a third party into the deal. It makes a lot more sense then.
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Commercial duplication and fair use aren’t mutually exclusive. Calling it ‘unlicensed duplication’ or ‘commercial duplication’ as if that’s all that’s needed for it to be infringement is a sneaky end run around the reality of the law. Every copy is not infringing a priori and all of your arguments essentially boil down to ‘well they’re making a copy and charging for it so it’s must be illegal.’
How could cases that made no sense help this hypothetical case make ‘a lot more sense?’
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” They are not the owner of the book, therefore anything they do with it is outside of the license granted. “
When was the last time you walked into a bookstore, picked up a book made of paper and then signed a licence? Were you shown a EULA/TOS after the purchase? There is NO licence to be talked about here!
” (after all, they don’t send the file, they send a COPY of the file… which means they have it to).”
Yeah…that’s how all digital communications happen. Let me guess. You’re the type of person who faxes important documents, then demands the person on the other end send them back. Once something is digital, it involves copying. End of story. There is NO way for this company to have e-mailed their customers a PDF without making a copy. The original PDF sits on the company hard-drive, a copy is transmitted to the customer.
“Plus, the copy is infringing in and of itself, because it’s an illegal copy made of the original work and distributed to the duplication company.”
So now you’re saying the guy who buys the book in the bookstore can’t now choose to give (distribute) his book to the company? That’s funny, I thought he owned it.
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My right of first sale trumps your imaginary license… I sold it to them on paper and they sold it back to me in a file. I must suck at sales because I took a loss on it… oh well.
I just realized – I don’t even need to sell it… I can just give it to them and they can give it back to me… The $1 was for postage on the digital file 🙂
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pretty sure it’s got to the point where ‘mocking tone’ plus ‘pro-current-copyright-regime-or-maximalism’ equals ‘auto-click report due to troll and/or shill like behaviour’ to a lot of people…
I bet the author’s guild would have accused Gutenberg of piracy.
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+10 internets and +10 printing presses for your insightful + funny post!
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… i’d say, all things considered, that it’s more depressing than funny…
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And Open Culture
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I’m a joke killer, I know, but I bet it was the Stationer’s Guild that wanted to take down Gutenberg. The Author’s Guild would have been pretty sparsely populated in the 1400’s because it was so expensive to produce new books; they mostly just copied the classics or scientific works. Actually the Author’s Guild probably exists because of Gutenberg.
It’s kind of interesting to contemplate the parallels and try to imagine what new organization might rise up because of ebooks like the Author’s Guild did with printing. Will they have the same attitude towards whatever develops to replace them?
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Ugh, in the process of reading more about the evolution of various Guilds I may have depressed myself more than ever about the current state of CopyrightWars?. There’s lots of great stuff about how the Stationer’s Guild objected to and then decided to control printing technology with restrictive laws. Here’s a snippet from a document on gutenberg.org:
Son-of-a… this has all been going on over and over again for the last SIX HUNDRED YEARS, maybe more. Is the Internet really so special and magical that this time we’ll be able to hammer out an arrangement where people will want to make stuff and other people will want to see it without packaging up our culture and handing it to a faceless monolithic sect? I am less than certain, especially with the disenfranchising effect money seems to have on our current legislation.
Screw it, this day sucks, I’m going to look at pictures of kittens.
I admit, on the surface, this does seem rather dodgy, but I almost wonder if it’s more comparable to format shifting music off a CD or vinyl than it is to straight Fair Use.
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I would agree with this, but in format shifting, you usually retain the origial vehicle for the content(in a useable condition). Either way, I would tend to agree that this is legal overall. As long as they can “prove” that the original is destroyed, they should be in the clear.
Does not mean the Author’s Guild(which authors actually belong to/support this group?) won’t go on another witch hunt here.
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It is not destroyed, the book can still be reassembled. You keep both the digital version and what’s left of the book.
In any case it is not illegal. Most of us nowadays have digital readers (tablets, any1?) and it’s only natural you should have free access to the digital versions of books you already own. I downloaded the e-books of all my physical copies.
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According to the site, it is destroyed. They keep the materials for 2 weeks in case you request a re-scan, and then they recycle everything.
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Thanks for the heads up, I find it weird, they could just give the paper back to the owner.
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In order to get good fast scans they would have removed all the pages. They then stick the pages into a document feeder and scan the book. Within a few minutes they would have the PDF ready to go but the book would in pieces.
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And by not sending back the disassembled book they keep their costs low. I’m willing to bet that they have a deal with a recycler who pays them for the different paper sorted out.
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Paper recycling is a zero (if not negative/subsidized) margin business. I’m sure they do recycle for PR purposes, but not likely for revenue.
I suspect that most customers don’t want the dismembered book back. They wanted the PDF in the first place.
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It’s NOT illegal to scan a book and keep it. Nobody needs to destroy his books just because he digitized it.
What is illegal is publishing this digitized book (= making it available on the internet for potentially everyone).
And as long as 1DollarScan doesn’t publish any of its scans, its perfectly legal, just about anywhere.
Copyright is not actually about making copies, but about who has the right to publish these copies. You can print as many Harry Potter books as you like, but you won’t be allowed to sell them (or even give them away in quantities). There are some specific exceptions regarding copying of software, but these don’t apply to books, movies, music or pictures.
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“Copyright is not actually about making copies, but about who has the right to publish these copies. You can print as many Harry Potter books as you like, but you won’t be allowed to sell them (or even give them away in quantities). There are some specific exceptions regarding copying of software, but these don’t apply to books, movies, music or pictures.”
What you say makes perfect sense. But if it is so, then why do we have the kerfuffle about whether or not content in your browser cache (or cdn server, etc) constitutes a copy?
Legally there is no right to prevent your book from being viewed digitally. Certainly it is not a “fundamental right.” That is like an author saying I can’t read his book while taking a bath. If it was not part of the contract when I bought the book it is not legally enforceable.
An author or publisher has a right to decide how their book is distributed, not how it is read.
Laugh all you want at the “fair use defense,” Paul, but I don’t even think that’s the real issue. This also sounds like it might involve the “right of first sale,” which is completely out of the authors’ hands.
First sale doctrine does not include the right to make a reproduction. It’s strange that you write articles about copyright law when you clearly don’t even grasp the basics. I guess understanding that which you write about is not a prerequisite for being a TD contributing author.
And what exactly is this phrase supposed to mean: “subverting the author’s fundamental right to choose whether or not to make a work available digitally?”
The First Amendment protects the right to speak and the right not speak. An author can choose not to speak by choosing not to provide their work in digitized form. I thought you guys loved the First Amendment. Or do you only like parts of it?
I don’t normally read your pieces because you come across as an uninformed whiner. I’m sorry I read this piece because it’s more of the same from you.
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“you come across as an uninformed whiner.”
Pot, kettle, black arse. That is all.
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The first amendment has nothing to do with what people can do with your speech after you speak it.
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The first amendment has nothing to do with what people can do with your speech after you speak it.
I was responding to the claim that it doesn’t subvert an author’s right to make a work available digitally. It does subvert their copyright rights, since the owner of the right can dictate how the work is released. But there’s also a First Amendment argument as well. You’ve moved the goalposts to secondary uses, while I was referring to primary.
That said, the First Amendment does limit how you can speak works that are copyrighted. Other than fair use and idea/expression dichotomy, there is no First Amendment right to speak another’s exact work.
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Nobody’s releasing it clownshoe.
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The author or right holder is releasing it.
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Except that you are digitalizing it for your own usage.
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You seem to have difficulties grasping the concept of making a back-up copy for personal use only. This is legal in the software domain as it is in any other. If you bought a book or a piece of software, you can legally make as many copies as you like as long as you never distribute those copies to third parties.
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I understand making a backup for personal use. You say it’s legal in software, but I think that depends on the facts. Was it a sale or a license? What are the terms of the license, if there is one? The law concerning making back ups is not perfectly clear. I’m aware of no case or law that says a third-party can make a back up digital copy of a book you’ve bought. Care to cite one?
Re: Re: Re:3 see, right there!
see, right there, that. you just described the ball of yarn chaos that is copyright.
attempting to support your outdated, useless copyright maximal-ism with the first amendment is just mind blowing.
“ive got rights, IVE GOT RIGHT!!”, keep chanting..
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The situation for backing up software still has gray areas, but is reasonable well-established.
The sale vs license question doesn’t directly relate to its legality. That is, if you’ve licensed it and backed it up contrary to the license terms, that means that you’ve violated the license (a civil contractual matter), not broken the law.
Generally, courts have held that backing up software and retaining multiple copies of legally obtained software is not in violation of copyright so long as all copies are treated as if they are a single unit. In other words, if you lend, give, or sell the software, all copies must go with it.
I expect that courts would generally rule along the same lines for music, movies, or books.
In the case of this service, that they’re a 3rd party isn’t a big deal. They’re taking physical possession of the book and you could argue they are now the owners. They can legally scan it all day long, and then give it back to the original owner without fear so long as all copies are given back with it.
If they are going to get into trouble, it will be about the “treat copies as a unit” thing. They could fix that easily, however, by giving the only copy of the PDF along with the remains of the book.
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Where’s the licence? I and everyone else here have bought paper books and not once have we had to sign a licence, EULA or TOS.
So again, why blabber on about a licence? There is none.
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It does subvert their copyright rights, since the owner of the right can dictate how the work is released.
Except of course when first sale kicks in which it does. And no, the book owners are not making it available.
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First sale doctrine does not include the right to make a reproduction. It’s strange that you write articles about copyright law when you clearly don’t even grasp the basics.
You are right about copyright law as it was defined by the Berne convention. Of course technically it still says the same thing – however, if copyright law was applied to the letter then modern life would grind to a halt – since computers make multiple copies of everything they touch – and they never ask permission.
Comnsequently recent practice has been to redefine the meaning of the law to allow everyday life to be legal.
This has resulted in some grey areas, some areas of dispute and some areas where different legal decisions contradict each other. The authors guild is trying desperately to turn back the clock.
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Richard, you have to think of this situation in the same manner as the “remote DVD player” type cases.
Basically, when you add a third party into things, you change the equation. What you do at home yourself with a book and a scanner is your problem. When you add someone else, it opens a whole can of worms.
First off, the person making the duplication doesn’t have rights to duplicate. That’s an issue. Second, they duplicate the book and make at least one copy for the user, and likely retain at least one copy as a backup. Now you have three copies instead of 1, not good (the original, the copy, and the saved copy).
It gets messier and messier. Nothing stops the duplication company from also sending the file to others, or keeping it for themselves. Once they break the barrier of digitizing it, there is no limit.
What you can do in everyday life by yourself isn’t the same as what a company can charge you to do. There is just whole bunches of illegal here, not fair use.
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You keep talking about these multiple copies. Where are you getting this info?
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I believe they keep it warm inside their own ass.
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Basically, when you add a third party into things, you change the equation. What you do at home yourself with a book and a scanner is your problem. When you add someone else, it opens a whole can of worms.
Huh. I wonder when Best But will get sued. They are a third party.
http://gizmodo.com/5361973/the-geek-squads-newest-racket-cd-ripping
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err… *Best Buy
(possibly a Freudian slip there….)
Re: Re: Re: Authors have no fundemental rights.
> First off, the person making the duplication doesn’t have rights to duplicate.
The person with the physical item is the only one that has any rights. In this case, they choose to format shift the work in question.
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@AC 6:06am
Zakida and the other AC are right – your tone does indeed make you sound like an arse, and your comment about the First Amendment is a red herring. And not in the faux sense that term is so often used – as in “argument I disagree with and would rather ignore” — but in the sense of “statement that is irrelevant to the argument at hand, perhaps inserted intentionally as a distration.” The First Amendment protects the right to speak and not to speak, true. But it protects that freedom from government intrusion, not private. And although the First Amendment protects, to some degree, a right *not* to speak, as a rule it does not prevent either the government or private parties from repeating things that you actually did say, once you have chosen to say them.
But I’ll give you this – you’re right, and Mike is wrong, on the first sale issue. The first sale doctrine and its statutory provision permit a purchaser (with some important limitations) to dispose of a lawfully-made copy in the manner they wish. So the fact that these books are ripped to shreds is certainly OK, and the authors can’t complain. But first sale doesn’t permit the making of additional copies, digital or otherwise. Maybe it should recognize a digitzatione xception, but under current law, it doesn’t. The book-scanning at issue here may well be a permissible fair use (and there are many reasons it should be), but the first sale defense isn’t going to fly here.
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But I’ll give you this – you’re right, and Mike is wrong, on the first sale issue.
Interesting that you attribute this story to Mike even though it appears under ?Tim’s byline. It looks and sounds exactly like Mike’s writing and I’d bet he wrote it and published it under Tim’s name to avoid further derision as a shill.
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And I’d bet your post is the product of a mechanical Turk, to keep shilling costs under budget.
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I think it’s fairly well settled as to who the shill is.
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i’m pretty sure we have a few of them floating around here.
they mostly post under snowflake icons…
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@AC 6:06am
Zakida and the other AC are right – your tone does indeed make you sound like an arse, and your comment about the First Amendment is a red herring. And not in the faux sense that term is so often used – as in “argument I disagree with and would rather ignore” — but in the sense of “statement that is irrelevant to the argument at hand, perhaps inserted intentionally as a distration.” The First Amendment protects the right to speak and not to speak, true. But it protects that freedom from government intrusion, not private. And although the First Amendment protects, to some degree, a right *not* to speak, as a rule it does not prevent either the government or private parties from repeating things that you actually did say, once you have chosen to say them.
But I’ll give you this – you’re right, and Mike is wrong, on the first sale issue. The first sale doctrine and its statutory provision permit a purchaser (with some important limitations) to dispose of a lawfully-made copy in the manner they wish. So the fact that these books are ripped to shreds is certainly OK, and the authors can’t complain. But first sale doesn’t permit the making of additional copies, digital or otherwise. Maybe it should recognize a digitzatione xception, but under current law, it doesn’t. The book-scanning at issue here may well be a permissible fair use (and there are many reasons it should be), but the first sale defense isn’t going to fly here.
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Please note that Mike doesn’t author every post on Techdirt–this one is written by Tim Cushing, NOT Mike. 🙂
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@AC 7:12am
You’re right, my mistake. I had just assumed Mike had posted that one, but didn’t look. (But perhaps I should still insist that “Mike is wrong,” just to sound like an arse myself.)
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With a first sentence that wrong is there any reason to read the rest of the post?
And yes, clearly I just violated your 1st amendment right not to speak by quoting you…
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With a first sentence that wrong is there any reason to read the rest of the post?
And yes, clearly I just violated your 1st amendment right not to speak by quoting you…
Care to cite anything that says first sale covers making copies? You can’t, ’cause none exists.
Here's how it would go in the great white north!
So, this is actually settled law in Canada.
The only point where the Authors Guild rep was right was when he said that this is probably not a fair use (and it’s definitely not a fair dealing here in Canada). However this doesn’t matter. I’m not sure how the First Sale Doctrine would play out in the U.S. because there is a format shift in play. I’d have to look at the American case law.
Here in Canada, the Supreme Court decided in a famous decision known as “Theberge” that there is no infringement when a legally licensed or purchased copy is transformed into another format. That case dealt with post cards with the images of paintings by Quebec artist Claude Theberge.
An art gallery that has purchased the postcards and was selling them with permission decided to transform them into replica paintings. This was done using a process by which the ink from the original was actually lifted off and transposed onto canvass. Because there was no “copying” and that the original was legally purchased, the Court ruled that there was no infringement of the artists copyright.
This seems like an analogous situation. Again, the first sale doctrine also may come into play, but as I said, I’m unfamiliar with the American treatment of that doctrine when there is a format shift. Traditionally the doctrine covers resales of the same copy of the work. In fact, this would be a really interesting argument.
On the social side of things, this is ludicrous. I’m of the opinion that anyone should be able to do with an e-book what they were once able to do with paper books, such as sharing. The Authors Guild’s stance on this is just indefensible…seriously.
Copyright should strive to be technologically neutral. That means that regardless of whether the technology is digital or analogue, the scope and breadth of the copyright should remain constant. Technological neutrality is a guiding principle in Canadian copyright law and has been applied by the Supreme Court just recently in a case involving a copyright collective called SOCAN and the Entertainment Software Association:
http://jamesplotkin.blogspot.ca/2012/07/scc-copyright-pentalogy-1-of-5-esa-v.html
Re: Here's how it would go in the great white north!
More interesting (especially under Commonwealth Countries use of Fair dealing) is the notion that this book is actually photographed page by page (Scanned) and then maybe OCR is preformed (though the article doesn’t make this distinction) to create a PDF.
That way it is not even format shifting. And as long as it is being used for non-commercial purposed (though in the photography instance commercial purposes is even itself very specifically defined for marketing/promotion purposes only) there would be no passing off problem either.
The organisation who does the scanning is also only acting in the capacity of an agent (work for hire) so ownership still rests with the holder of the book and if they keep a copy for archival/backup purposes it is in the same vein as a photographer keeping copies of negatives or raw data images etc.
In the event of the selling of the book (new format) then I suspect the US first sale doctrine would come into it, and like software their might need to be probative proof that you have destroyed the original product if there is talk of licensing or Trademark [book title] problems especially or that you are giving both formats to the buyer therefore retaining no other copy or fascimile’s
As you state the copyright in the text (as a whole) is still transferred through each ‘format shift’ though there is also a new copyright created on the new format, especially since they are photographed (scanned).
No matter what it’s intriguing and something that is bound to be contentious no matter what the deciding law states
Re: Re: Here's how it would go in the great white north!
That is an interesting perspective!
I’m not sure the Court would get so technical. In this case, doing so would distract us from the point, that a one to one format shift has been made and that there is no final copying.
There is the question of the service retaining the copy in case you lose the PDF. Now there’s more than one copy and an exclusive right has technically been violated.
The new Canadian copyright law has a user exception for making backup copies of legally purchased works. So here, it would be a non issue (so long as the media was nto protected by a TPM…then things get “American style” again).
“The organisation who does the scanning is also only acting in the capacity of an agent (work for hire)”
Your right, but be careful. It seems like you’re making reference to works for hire that are protected by copyright in the employment law context. Here, the copyrighted material was created by the author and was not a work for hire. The copying is not a “work for hire” in that sense because they aren’t creating a new copyright protected work. If they were, it would be a derivative work and would be actionable.
I think you bring up a good point about what would happen if the digital file was eventually sold. First sale finds application in trademark law as well as copyright so if the doctrine applied int his case, I don’t think any independent trademark matters would arise. However, the doctrine wouldn’t apply unless the unique digital file was transfered, not copied as it usually would be. The seller would have to be depossessed of the property for this to apply…otherwise it is may considered a “first sale” of the new digital copy.
First sale has nothing to do with this
You write: “This also sounds like it might involve the “right of first sale,” which is completely out of the authors’ hands. I’m pretty sure that if I buy a Scott Turow hardcover, I can then rip it from its binding, shove it through the scanner and make my own PDF.”
Making your own PDF is making a reproduction – and making a reproduction is an exclusive right of the copyright owner. 1st sale only governs the distribution rights to the actual physical copy that you purchased. Read Section 109.
“From that point on, I can paste it all back together, cross out Turow’s name and write “BY TIM CUSHING” all over the cover and put it in the 25-cent bin at the next garage sale, all without fear of litigious reprisal.”
This could be considered making a derivative work, which is also one of the exclusive rights of the copyright owner. It is more likely a trademark violation (“passing off”).
An argument could be made that what 1DollarScan is a fair use, but as far as I know, no court has said that format shifting of legally-acquired material is legal. Remember, even in the Sony Betamax case, the Supreme Court only said that it was legal to time-shift. That means that after watching the time-shifted program, you have to destroy it (no library building).
Re: First sale has nothing to do with this
Yup. It’s hilarious how this blowhard seems to think he can do this without fear of litigation. Did he get his legal advice from those geniuses up at Harvard who advised Jamie Thomas?
It’s called plagiarism and piracy. I think he should set up an official business and try it. See how long he lasts in court.
Re: Re: First sale has nothing to do with this
Sorry to burst your bubble bob, but plagiarism whilst unethical (in some instances.. ethics is a funny fish) is not unlawful nor illegal. Though it could be a breach of contract (education institutions etc have this with their students)
Piracy? hmmmm. Actually this is more towards what the original piracy when dealing with copyright way back in 1700’s was about than anything else, though only in the fact it is to do with the book publishing industry. Piracy requires commercial gain, breaching of a fundamental or contrived right to obtain said commercial gain. Read the article again (even the links from the article to sources.) this is not anything to do with that.
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It’s not piracy because there is never an extra copy of the book. It’s converted from one format to another.
This is an issue of artistic megalomania rather than any real issue of justice or public policy. This group of middlemen want to exert a level of control they should never have.
The notion of “first sale” and “personal property rights” is the correct way to think about this. People with no real rights want to interfere with those that actually do have some fundemental (property) right in all of this.
Re: Re: Re:2 First sale has nothing to do with this
nor is it plagiarism.
Re: Re: First sale has nothing to do with this
It’s bob time!
Re: Re: First sale has nothing to do with this
Piracy? I don’t think so. Now this, this is piracy. And wouldn’t you just know it, it’s in the public domain! At least until they retroactively extend copyright… again.
Re: First sale has nothing to do with this
Your probably right about the fair use. I don’t see how this could be considered one. But I think that’s moot.
“Making your own PDF is making a reproduction – and making a reproduction is an exclusive right of the copyright owner. 1st sale only governs the distribution rights to the actual physical copy that you purchased. Read Section 109.”
I respectfully disagree. reproduction usually refers to manufacturing like publishing or pressing of CDs (as if people still bought those). The most salient point here is that the original is being destroyed. We begin with one copy and end with one copy. I don’t think that’s a reproduction. It’s a format shift.
“This could be considered making a derivative work, which is also one of the exclusive rights of the copyright owner. It is more likely a trademark violation (“passing off”).”
I’m not sure if I agree with you here either. Would it really be a derivative work? I suppose…The U.S. doesn’t have much in the way of moral rights otherwise it would be a clear violation of those.
Is it really passing off? I mean, the person isn’t trying to pass off their wares as the author’s, the book IS the product of the author. By using this service it’s not like I’m apposing the title of the book onto a t-shirt or lunch box.
An action in passing off requires three components:
– Goodwill or reputation of the Plaintiff (check)
– Misrepresentation (eee…debatable)
– Resulting damages (…none)
I just don’t see a publisher being successful in their passing off action.
P.S. Are you aware of any American jurisprudence dealing with format shifting, particularly when there is no additional copy made?
Re: Re: First sale has nothing to do with this
That. The company is doing nothing illegal since nothing (the physical book or the pdf) is stored in the company after the work is done.
I see your point of format shifting but it’s amusing: to do so with a DVD you must break the DRM, which is not legal in Canada as far as I know. Amusing indeed.
And one has to wonder whether it is logic to condemn making a copy for personal use. I don’t know what the law is on this specific issue in Canada but it is at least weird that one can’t make a copy for back up or other personal purposes.
Re: Re: Re: First sale has nothing to do with this
Up next: Since they can’t put “DRM” on copies of ink printed books, publishers will start printing all new books on light-sensitive exploding paper versions (to prevent unauthorized copying) which can only be read in the dark with special patented, trademarked and copyrighted reading glasses. Only “pirates and other ne’er do wells (like your grandparents) will have old- style ink-you-can-see-right-there-on-the-page books. Welcome to PRM (Paper Rights Management).
I can’t wait for another commercial sung to the tune of “Don’t copy that Floppy” based on this new “alleged” problem. I believe it will be called something like: “Don’t self-Nook that paper book!”
Re: First sale has nothing to do with this
Reproductions for non-commercial use are quite legal no matter what art galleries and authors and other like minded fools think.
Also remember that passing off needs to be for commercial purposes, and/or fiduciary gain, and that a reasonable person would be decieved. Tim’s quote of “cross out Turow’s name and write “BY TIM CUSHING” all over the cover and put it in the 25-cent bin at the next garage sale” doesn’t even come under de minimus since the major test of reasonableness (moron in a hurry) wouldn’t pass the test.
Oh and the maybe destruction after format shifting is ONLY for the original, thought I’d clarify that since others reading your statement might be confused into thinking all formats have to be destroyed (and again personal use is a de minimus)
Re: Re: First sale has nothing to do with this
As I wrote above, if only the hard copy is destroyed and not the “new original” PDF, we may have an unauthorized reproduction on our hands.
Re: Re: First sale has nothing to do with this
Let’s try to maintain the distinction between what we would prefer the law to be, and what it actually is, OK?
It might be a good idea for US fair use law to allow all reproductions for non-commercial use. But it doesn’t. It allows some such uses, but it requires a pretty complicated analysis of various factors (4 of which are spelled out in 107, but there can be others too). Some uses which are arguably non-commercial may nevertheless not be “fair” uses under US law.
In this case, we can only assume that the use to which these PDFs will be put by end users is non-commercial, but the use to which 1DollarScan is putting the PDF files is at least arguably commercial, as they charge money for generating these files. The closest analogy in earlier case law that I can think of is the Michigan Docuemnt Service case, and there, and appeals court found that generating course packs for money was commercial and not a “fair use,” even though it may have been fair use for an individual student to go to a copy shop and photocopy the thing herself.
This may not be how the law should be, or what you or I would like it to be, but the law as it stands now tends to favor the Authors Guild position. So the Authors Guild’s tactics may be deplorable for lots of reasons, but the weakness of their legal position isn’t one of them.
1DollarScan need to thank Authors Guild for the free advertisement. They just got another customer.
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Enjoy it while it lasts.
If I buy a book, scan it, and then read it on my Kindle am I breaking the law? If so, the law is stupid and needs to be changed.
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According to the Authors Guild you only purchased the paper book (retaining first sale rights to that physical copy), but you unknowingly only have a license to read the words on “their” specially recycled printed pages. I mean, it was clearly stated on their website in the EULA:
“The Authors Guild reserves the right to update and change, at any time and without notice, this EULA and all documents incorporated herein by reference. You can find the most recent version of this EULA at http://www.pay-us-eternaly-for-we-will-be-extending-copyright-on-everything-just-before-it-is-about-to-expire-see-mickey-mouse-protection-act.com/legal/terms/. Your continued reading, longing for, hearing about or touching recycled paper that may have once been an Authors Guild book after any such changes constitutes your acceptance of the new EULA.
If you do not agree to these terms, stop reading any and all books, and do not write, speak or use sign language (up to and including the middle finger) to make references to any of our books, or we will threaten to sue you in court.”
, and not to format shift the book you already purchased and thereby deprive them of their chance to shaft the original writer out of more money.
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Yer link’s broken.
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Yer link’s broken.
So is the Authors Guild, but that won’t stop them from enforcing their imaginary made-up EULA. It’s a fundamental RIGHT as granted to them by the authors and inventors of imaginary property rights everywhere. To be eventually moved from uncodified “implied rights and laws written on the back of a napkin and slipped to a politician at a political fundraiser” (more like secret negotiations and backdoor treaties these days, TPP ring a bell?) into actual “laws on the books” (whether legal or not) in the country of their current lobbying power base they wish to influence.
It’s not like that same procedure hasn’t been working out for the MPAA and RIAA.
/downfromsoapbox
A Cunning Plan
Sending off a book to get scanned.
Getting a pdf in return.
Putting pdf on a website so that it can be downloaded for free.
Putting adverts on the website to offset any admin costs with hosting the site.
When 1000 people have downloaded the pdf and for every 1000 after that send the publisher a bill for advertising costs for promoting the book that got scanned.
This plan could not possibly fail :/
Re: A Cunning Plan
Yeah, but if you put the pdf up for free download, that’s on you, not on the scanning company.
Please, not Lendink all over again.
I hope readers are taking note of the utter disdain authors show at not being able to control every single use of their product. All because copyright law says so, but from the comments above, it seems to be unclear.
Re: Re:
Some authors.
also, the apparently not-all-that-representative Authors Guild.
“violating authors’ fundamental rights.”
Let me be clear here. Authors have NO fundamental rights.
We, as a society, granted a TEMPORARY advantage (a LIMITED monopoly) to allow them some “breathing room” for the opportunity (not a guarantee) to try to earn a reasonable wage so they can work on their next book (or song if you’re a musician, or upgrade your next generation of computer/smartphone/car if you’re an inventor, and so on) FOR THE BETTERMENT OF SOCIETY.
If the terms of this arrangement are not acceptable to you, we, as a society, don’t really care. You can go get a job at a gas station, or Walmart, or work in a factory. Demanding that the opportunity/advantage we provided you is not enough, and that somehow we OWE you is meaningless to us. We owe you nothing, and the more you demand we do so, the more we will not only ignore your demands (regardless of whether or not you try to codify those demands into law or not) but we will also ignore the opportunity/advantage we have provided for you (regardless of whether or not we have codified it into law for you) as well.
There are a few elite people throughout history who will succeed regardless of opportunity because they are simply that talented, but as R.A. Salvatore said in a lecture years ago, his success didn’t come so much from his talent (he actually knew several writers in his social circle better than him at that point in his careers) but from being at the right place at the right time to seize the opportunity that was presented him. If you do not wish the opportunity we have conferred upon you, don’t take it, there are plenty of people likely just as talented (or potentially more so) who will gladly step up to fill the void you choose to vacate.
Re: Re:
so very much this.
Authors Guild Continues To Battle The Present; Attacks Another Legal Service As 'Infringing'
Basically, to put this discussion into a ‘short and to the point’ average person view point…
Who gives a good damn what the Authors Guild thinks!
This can also be stated in common parlance as:
Go piss up a rope and see if you stay dry in the process!
Re:
Way to fail at trolling, I give you -10 out of 10.
Yes, this would be illegal, but has no bearing on the legality of the service itself (I could be using my home scanner to make copies of my books for my friends, but scanners are not illegal).
Multiple court rulings have found that just because something could be used for infringement does not make it infringing in itself. If this were not the case nothing that allowed you to copy something would be legal (say goodbye to your pen and paper).
As to them keeping a copy for you, how is this any different from the multiple cloud storage services out there.
Also, since they have been in business for at over a year (based on the registration of their domain) and have yet to be sued by anyone, I would think that the legality of this service is at least something the copyright holders are not willing to have tested in court.
Re:
..why do we have the kerfuffle about whether or not content in your browser cache (or cdn server, etc) constitutes a copy?
A good question. The answer is, it rests on case law, a decision in Mai Systems Corp v Peak Computers (9th Circuit 1993).
From Wikipedia:
The court determined that a copy of a program made from a hard drive into RAM for purpose of executing the program was, in fact, a copy under the Copyright Act. The judges utilized the criteria set forth by 17 U.S.C. ? 101, which states ‘A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.’
Based on this decision, the doctrine that any RAM copy of anything was subject to copyright was written into the DMCA in 1996.
How laws are made
“From that point on, I can paste it all back together, cross out Turow’s name and write “BY TIM CUSHING” all over the cover and put it in the 25-cent bin at the next garage sale, all without fear of litigious reprisal.”
Scott Turow: *reads the above, then immediately ‘lobbies’ his representative to sponsor a bill to make plagiarism a federal offence.*
(BTW, Tim, it’s LEGAL reprisal you needn’t fear when plagiarising others’ works, but you can still be sued for it as a civil offence.
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@ DogBreath: Fixed your link for you: http://http://www.pay-us-eternaly-for-we-will-be-extending-copyright-on-everything-just-before-it-is-about-to-expire-see-mickey-mouse-protection-act.com/legal/terms/ You’re welcome.
Re:
I’ll try again: pay-us-eternaly-for-we-will-be-extending-copyright-on-everything-just-before-it-is-about-to-expire-see-mickey-mouse-protection-act.com/legal/terms/
That should work.