Update, 6 p.m.: My present thinking: The Internet Archive is not violating the law, but the Archive’s reliance on the doctrine of first sale is still somewhat risky, long term. See the end of this post.
Created by the late Aaron Swartz, Open Library is an arm of the Internet Archive, one of my favorite places on the Net. A public library can send in a paper book for digitization for online access, with Adobe DRM used to enforce expiration and restrict the total number of readers, typically to one at a time.
No, Chris is not a lawyer. But he cites specifics—notably, unauthorized reproductions of some works by Diane Duane and Mercedes Lackey, both of whom he contacted. Chris has asked the Internet Archive for its side, and I'd love to read it. I’ve mailed Archive founder Brewster Kahle about Chris’s TeleRead commentary just to be extra certain that the Archive can respond quickly to the TeleRead piece. How will Kahle react to the threat of DMCA takedowns notices? Let's hope that if violations have occurred—Chris is a credible reporter-essayist and has made a strong case—they're exceptions in the grand scheme of things. Just a few lower-level people involved? Maybe even just one? Will the Archive or the Open Library discipline him, her or them in any way if violations have happened, deliberate or accidental? How? What precautions does the Archive now have in place against copyright violations, and are they at least as strict as Project Gutenberg's? What changes if any will the Archive make?
I'll also be curious how COSLA (Chief Officers of State Library Agencies) reacts to this latest news, considering the organization's ties with the Internet Archive. Will COSLA investigate independently? What about possible liabilities in the future from its or its members’ Open Library relationship, perhaps through distribution of illegally reproduced works under circumstances not covered by “safe harbor” provisions in federal law?
As I see it, COSLA should start its own national digital public library system under its own control. It should worry less about cutting-edge experiments and 100-year legal battles on the copyright front and more about about a possible OverDrive purchase, fund-raising and other financial matters, and scaling up as quickly as possible to meet library patrons' digital needs in areas ranging from family literacy to services for the elderly. Libraries should offer already-published content but also develop their own in partnership with interested publishers and writers, among others. They also need to establish their own ecosystem to make the content readable on a number of platforms.
What the public librarians in places like Douglas County, Colorado, have done, in attempting at least partial OverDrive and Amazon bypasses, means just as much to me as anything from the DPLA. Librarians need to retake control of libraries from suppliers of goods and services, while still treating them fairly.
Publishers themselves respect three things: audience, cash and content. U.S. public libraries so far are offering just one of the three. The $1.3 billion that America's public libraries spend annually on content is nothing compared to the book market as a whole. If public libraries can count more as customers, they'll actually gain far, far more clout than through legal battles and related Open Library-style experiments to see how far they can extend the printed book metaphor.
Regardless of my enthusiasm for Open Library's good side, I see it and even the Internet Archive as sideshows.
The Big Tent should include a national digital library endowment; separate but intertwined library systems for general public and academia; and a common technical services organization, in which Brewster Kahle ideally will be a prominent and much-valued participant while remembering that library patrons and their needs should prevail over technological and legal experimentation. Yes, the priorities overlaps. But most of all, public libraries are service organizations—created not to blaze new trails in the Open Library tradition, but rather to serve taxpayers.
Note: I founded the TeleRead site, now owned by North American Publishing, and as I recall, Chris was the first paid contributor.
Update, 10:22 a.m., July 11: I’ve emailed Brewster Kahle to see what he would think of the idea of COSLA and the Digital Public Library of America taking over IA's content-related functions (with COSLA concentrating on public library-related activities and the DPLA dealing with academic library ones). Meanwhile Brewster could focus on his huge strength, the tech side, and help with funding issues. With those changes, IA would be a lot closer to being a true public library with professional librarians vetting featured material and representing the interests of their stakeholders. It would no longer be just a sideshow. And Brewster would earn himself a very positive and durable mention in library history while making IA more attractive to the very biggest funders. In one swoop America would have separate public and academic national digital library systems, perhaps ultimately funded at least in part by a national digital library endowment. Perhaps the public library side would not be COSLA itself but an offshoot representing member libraries. If libraries ultimately could buy out OverDrive, so much the better (the reinvention of IA would give libraries somewhat more leverage in these matters).
Update, 7:24 p.m., July 11: No response so far from Brewster Kahle. Meanwhile let me share my current thoughts as a nonlawyer. If paper copies of the scanned library books were sold rather than licensed—any evidence to the contrary?—then the doctrine of “first sale” would kick in. Here’s a recent Supreme Court decision, 6-3. So unless someone can show that those paper library books were licensed rather than sold—and that the doctrine doesn’t apply—then the Internet Archive is probably in the clear. The real risk may come later on. The Obama Administration sided with John Wiley & Sons, and one wonders if in future years, not immediately, but after Obama and successors make their mark on the court, the Supremes could flip; or there could be legislation ending or weakening the first sale doctrine. Long term, it would still be safer for libraries and the Internet Archive to use another business model. If nothing else, keep in mind the small amount that U.S. public libraries are spending on paper books and e-books alike, along with other content, just $1.3B a year, as noted in the main post. So the Internet Archive is still not going to solve the real problem. Furthermore, in the future, a smaller percentage of books will be truly ownable, as paper editions—meaning that the publishers can very likely use digital licensing arrangements to maintain control unless libraries can exert business pressures to alter that.
Update, 3:05 a.m., July 15 (tweaked on August 2): Let’s distinguish between the Internet Archive’s fair use situation and somewhat similar but not identical ones. In Douglas County, Colorado, the library system correctly strives to own library e-books for real for one-patron-at-a-time use. But it obtains publishers’ permission ahead of time before it buys the books, and some might even argue that there’s no need for fair use even to come up. The U.S. Copyright Office’s explanation of fair use, including the four criteria to help determine if it applies, says: “One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords.” Notice the word "authorize"? In this case, Douglas County enjoys authorization from publishers for local patrons’ use of borrowed books.
By contrast, just because I was a member of Open Library, no other reason, OL let me check out a copy of Saul Bellows’ The Adventures of Augie March for two weeks—without requiring that I live within a certain geographical area or suffer from any disability or otherwise qualify in a special way.
Significantly, one of the U.S. Copyright Office’s four criteria is “The effect of the use upon the potential market for, or value of, the copyrighted work." Without geographical restrictions or others, the impact on the market value could be higher than otherwise. As a booklover I cherish the ability to read Saul Bellow in E for free, but, especially as more people start using Open Library, might there be too much of an impact on the market value for OL to offer this title without incurring legal risks, even if the library enforces expiration and limits each copy to one-person-at-a-time use?
A tricky question. If the borrowing period is two weeks for Adventures, that would be a maximum of only 26 checkouts per year through Open Library if just one copy is involved and patrons at the local library cannot borrow the physical book that OL scanned.
This is merely an e-version of interlibrary loan, and in my opinion at least, that in itself would not reduce the market in any noticeable way for this particular book, given the small numbers. Great!
But some authors and publishers might argue differently, especially in the case of academic works with limited markets.
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