Publishers And Authors Misguided Freakout Over Internet Archive's Decision To Enable More Digital Book Checkouts During A Pandemic

from the get-over-it dept

It’s been said many times over that if libraries did not currently exist, there’s no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall. Last week, the Internet Archive announced what it’s calling a National Emergency Library — a very useful and sensible offering, as we’ll explain below. However, publishers and their various organizations freaked out (leading some authors to freak out as well). The freak out is not intellectually honest or consistent, but we’ll get there.

As you may or may not know, for a while now, the Internet Archive and many other libraries have been using a system called Controlled Digital Lending, which was put together to enable digital checkouts of books for which there may not be any ebooks available. Basically, the Archive helped a bunch of libraries scan a ton of books, and the libraries lend them out just as if they were lending out regular books. They keep the physical copy on the shelf and will not lend out more copies of the digital book than the physical copies they hold — basically doing exactly what a library does. There are strong arguments for why this is clearly legal. Scanning a book you own is legal. Lending out books is legal.

Of course, when CDL was first announced, publishers (mainly) and The Authors Guild (which, contrary to its name, tends to be a front group for publishers, rather than authors) completely lost their shit and whined about how this was piracy. Remember, the Authors Guild has already tried suing libraries for scanning books and failed miserably. Challenging this effort at lending scans of books would also likely fail.

One important thing to note: the scans of books that are part of the CDL effort are not great. They are images of actual book pages, and not anything like ebooks that are designed to be read nicely on a Kindle or whatnot. No one would choose a CDL book over a regular ebook if given the choice, because the experience is not nearly as good.

The big news with the National Emergency Library is basically the removal of waitlists for checking out these books. They still have DRM and you still only can access the books for two weeks, but unlike with CDL where there was a 1 to 1 ratio of which books the Internet Archive had a physical copy of and those which it would lend out, the NEL removed that limitation and made it so that more people could access those books at once. The reasoning here is sound: in the midst of this pandemic, most physical libraries are closed, so most people literally cannot get physical books. They are sitting there unlendable. To help deal with that, the Internet Archive removed the waitlists on the books it had scanned. As the Archive explained, it focused heavily on making sure books with no ebook-availability (and educational books) were available:

The Internet Archive has focused our collecting on books published between the 1920s and early 2000s, the vast majority of which don?t have a commercially available ebook. Our collection priorities have focused on the broad range of library books to support education and scholarship and have not focused on the latest best sellers that would be featured in a bookstore.

Further, there are approximately 650 million books in public libraries that are locked away and inaccessible during closures related to COVID-19. Many of these are print books that don?t have an ebook equivalent except for the version we?ve scanned. For those books, the only way for a patron to access them while their library is closed is through our scanned copy.

But, of course, almost immediately after this was announced the very same groups that already insisted that CDL was “piracy” jumped on this to scream from the heavens about “piracy” in making these books available to people stuck at home. The Authors Guild flipped out:

IA has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author. We are shocked that the Internet Archive would use the Covid-19 epidemic as an excuse to push copyright law further out to the edges, and in doing so, harm authors, many of whom are already struggling.

This is false. The Internet Archive has every right to those books — all of which were purchased or donated. And the Authors Guild already failed in its lawsuit saying that the books couldn’t be scanned, so it’s just making stuff up now to get even angrier than it was before. There is no more “harm” to authors than there is during the days when libraries are open and people could (as per normal) borrow these books. Again, the real thing the Authors Guild hates here is libraries.

The Association of American Publishers (run by fired former Copyright Office boss Maria Pallante) also freaked out:

?It is the height of hypocrisy that the Internet Archive is choosing this moment ? when lives, livelihoods and the economy are all in jeopardy ? to make a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity that it supports.?

No, it’s the height of hypocrisy for publishers to attack a basic thing that libraries have done for centuries: lending out books that they own for limited periods of time to support the spread of knowledge — especially given how stingy publishers themselves have been in embracing ebooks and easier access to knowledge.

The National Writers Union also insisted that rather than doing this, we should be spending taxpayer funds on repurchasing all these books that have already been purchased? That’s the best I can figure out from this argument.

The argument is that students need e-books while they are staying home. But that?s an argument for spending public funds to purchase or license those resources for public use ? not putting the burden of providing educational materials for free on writers, illustrators, and photographers. Authors also need to eat and pay rent during this crisis.

Again, that argument makes no sense. Because that same argument applies to any library copy of a book.

For what it’s worth, the Internet Archive lets any author who is freaked out about this digital library lending out their books to opt-out of the system. And while I’m sure some authors will argue that opting out shouldn’t be on them, that’s again silly. The system works the way libraries work. Should authors also have to agree before a library can lend their book?

This is all a bunch of nonsense. As we’ve highlighted a few times in recent weeks, the pandemic has really highlighted just how insane copyright has become and how unmoored it is from its original intent of helping to further the spread of knowledge. Instead, it’s used as a giant paywall, to lock up that spread. I know that people have bought into the ever growing idea of permission culture, but take a step back and think about how totally messed up it is that people might possibly have access to the world’s knowledge, while being stuck in their homes during a pandemic… and to have people start yelling “but you don’t have permission to do that.” From an outsider’s perspective, not brought up in the myth of permission-culture, the whole concept would sound ridiculous.

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Companies: association of american publishers, authors guild, internet archive

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Comments on “Publishers And Authors Misguided Freakout Over Internet Archive's Decision To Enable More Digital Book Checkouts During A Pandemic”

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This comment has been deemed insightful by the community.
PaulT (profile) says:

"Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall"

Just a personal note – libraries are indeed the very reason I buy books today. If libraries didn’t exist, the industry would be much poorer. Although, I admit that a great many of the books I bought in my life were used, for which the authors got nothing directly, yet that was legal and no publisher or author was losing their mind over that. Strange how we seemed to have all this sorted out 30 years ago before the internet made people think they were entitled to a toll payment on every use, isn’t it?

"The argument is that students need e-books while they are staying home"

Yes. Are you saying that students don’t need books, or that you need to send physical copies for them to be valid requirements?

"Authors also need to eat and pay rent during this crisis."

Yes, and most of them have been paid an advance already, if my understanding of the publishing industry is correct. The issue is how the publisher counts contributions toward the advance, not how authors spend the money they were already paid.

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PaulT (profile) says:

Re: Re: Re:

Well, yes, it’s clearly an emotional ploy that’s not taking into account the wider picture. Typical for these kind of arguments, along the lines of the stereotypical "starving musician", who is often starving because they signed to a label for a 4 album deal who then refuse to release their 2nd one because it’s too uncommerical.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"Almost as if there were bigger issues with our economic system and social safety net than people borrowing stuff from libraries."

Well, there’s a reason i usually refer to the IP maximalists as the copyright "cult". They’re the sort of people who, when confronted with a touching story about a dying man being lent a book to read on his deathbed would have the first response of filing a lawsuit against the estate. Or as the OP has it, scream in outrage over the library lending the man that book.

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Heather M says:

Libraries and copyright issues.

As a librarian I for one welcome the Archive. In fact I was ecstatic. Our library had to close and it really bugs all of the librarians that we can’t provide services people need safely. One idea we had was to continue our storytimes on line. We can’t the biggest publishers will only let people do a live event and then we are to delete any recording we’ve made. How is this helpful how is this even reasonable? Do they think that by restricting us people are going to rush out and buy their books. Newsflash That isn’t going to happen. It didn’t happen before the new plague and it is sure not happening now. But when people ask why we can’t and we tell them why I can guarantee the names of the publishers who did this are going to linger in memory far longer than the memory of a book being read on line.

cpt kangarooski says:

While I have little sympathy for the publishers or authors here — their response to ebooks has been abysmal — what’s happening is infringing. Ebooks can’t be lent under first sale because that only applies to physical copies. Instead new copies must be made with every download and that infringes. The Archive might be ok having made scans for certain uses and having electronically ‘lent’ copyrighted works pursuant to a license, but this is pretty clearly illegal. I’m concerned with what will happen as a result.

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PaulT (profile) says:

Re: Re:

I’m sure there will be court action to see who is legally right once this has all passed. However, I’d like to see the response from the publishers about the question of how since they apparently did this because students would not have been able to access the books legally during this lockdown in another way, why their legal right to profit should trump the very purpose of the books they are selling.

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RRM says:

Re: Re: Re:

This argument would hold more water if most public libraries didn’t have extensive ebook collections that students can already access for free. My library, which is not particularly large but also isn’t tiny, offers access to roughly 165,000 ebooks. Unlike the Internet Archive, we pay quite a lot for these digital copies to ensure that authors get paid.

So in other words, students CAN access the vast majority (but not all) of books they’d need from home even without stealing from authors and publishers.

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Anonymous Coward says:

Re: Re: Re: Re:

Missed this part of the article, I take it?

As the Archive explained, it focused heavily on making sure books with no ebook-availability (and educational books) were available:

The Internet Archive has focused our collecting on books published between the 1920s and early 2000s, the vast majority of which don’t have a commercially available ebook. Our collection priorities have focused on the broad range of library books to support education and scholarship and have not focused on the latest best sellers that would be featured in a bookstore.

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PaulT (profile) says:

Re: Re: Re: Re:

"My library, which is not particularly large but also isn’t tiny, offers access to roughly 165,000 ebooks."

Cool. What if the book you need is one of the hundreds of millions you don’t have in eBook form? You know, the ones that the archive is expressly supplying?

"even without stealing from authors and publishers"

Nobody’s stealing from them.

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Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

" My library, which is not particularly large but also isn’t tiny, offers access to roughly 165,000 ebooks. Unlike the Internet Archive, we pay quite a lot for these digital copies to ensure that authors get paid."

Interestingly what is being paid by the library for each license to lend out a digital copy is usually multiple times what is paid for the privilege of lending out a physical copy.

In sweden the example is 20 times the cost.

So yes, we pay MORE for digital copies, whether we borrow or buy books, than we did when there was actual material cost associated with the manufacture of said copies.

"…even without stealing from authors and publishers."

You know how we can tell you’re a copyright maximalist shilling on behalf of the copyright cult, bro?
I’ll give you a hint – using the word "steal" when neither the language, the dictionary-definition nor the supreme courts agree can apply.

But nice try, Baghdad Bob.

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Thad (profile) says:

Re: Re: Oh Rly?

Huh?

There’s a pretty broad body of court rulings upholding EULAs. It’s fucked up, but the publishing industries have been pretty successful in establishing that yes, first sale doctrine only applies to physical goods; digital distribution is covered by license agreements, not the same ownership laws that apply to physical goods.

Can you cite any legal rulings to the contrary?

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cpt kangarooski says:

Re: Re: Oh Rly?

Well, 17 USC 109(a) (the first sale statute) says that "the owner of a particular copy … lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy."

Copies are defined in 17 USC 101 as "material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

So I’m fairly confident that an e-book is not itself a ‘copy’ for the purposes of copyright law that can be lent under first sale. It may be embedded in a material object like a flash drive, which is a copy, but then you have to physically hand off the flash drive. And you can’t copy (in the vernacular sense) the file onto a computer, because that would be reproducing the work, which is the core exclusive right of copyright under 17 USC 106(1). An infringement for sure.

Obviously, ebooks can be lent by means of a license granted by the copyright holder, but that’s not under first sale.

Now you might be thinking of 17 USC 108, which carves some exceptions out of copyright for libraries, but (a) that’s not first sale, and (b) isn’t all that applicable here as there are a lot of limitations. The Archive has opened the floodgates and gone way beyond what’s allowable under 108.

But I’m happy to be proven wrong, so please let me know what the mistake I’m making is. Cites to statutes and case law would be appreciated.

Scary Devil Monastery (profile) says:

Re: Re: Oh Rly?

"You might want to contact whatever law school you got your degree from and demand a full refund for fraud."

No, he’s unfortunately likely to be correct – strictly speaking.

First sale doctrine, introduced as a form of consumer protection, has been twisted into a pretzel by the rent-seeking copyright maximalists who went after the exact wording of First Sale to make the case that a consumer can’t really own a digital copy and therefore the publisher can screw the consumer out of their property rights.

The real issue with his statement is that he presents it as if this blatant abuse of the law is a desirable state of affairs.

You’d think americans, above all, obsessed with the concept of "property" would be the first to scream in outrage…but they drank that glass of kool-aid with relish.

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cpt kangarooski says:

Re: Re: Re: Oh Rly?

The real issue with his statement is that he presents it as if this blatant abuse of the law is a desirable state of affairs.

First, it’s hardly an abuse of the law; it’s a straightforward reading of the statute. You might dislike the definitions at 17 USC 101, but they are a part of the statute, and the terms used in the statute have be used in the manner defined.

Second, I’m not presenting this as being a desirable state of affairs. I’d like nothing more than to rewrite US copyright law to better serve the public, and I don’t have a problem with the idea of reselling electronic files simply because it necessarily involves reproduction.

That said, I am skeptical that it could ever be done in a fashion that wasn’t simply reproduction (i.e. where the seller keeps a copy) while deterring DRM. Frankly, I think that we’d be worse off with resale and DRM than without resale or DRM, so it’s not something I’d actually support. OTOH I also support not having copyright pertain to copying and distribution amongst natural persons where there is absolutely not even a scintilla of compensation, payment, payment in kind, etc., which is a much more radical position, so I wouldn’t sweat it.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Oh Rly?

"First, it’s hardly an abuse of the law; it’s a straightforward reading of the statute. You might dislike the definitions at 17 USC 101, but they are a part of the statute, and the terms used in the statute have be used in the manner defined."

Mea Maxima Culpa. Strictly speaking you are correct. It’s more casual ineptitude by legislature that First Sale hasn’t had its wording updated to accurately reflect the principle it’s supposed to uphold.

"Second, I’m not presenting this as being a desirable state of affairs."

Again Mea maxima Culpa. My only defense here is "still being in a pissy mood over Baghdad Bob running his copyright über alles theme song in these times".

"That said, I am skeptical that it could ever be done in a fashion that wasn’t simply reproduction (i.e. where the seller keeps a copy) while deterring DRM."

It can’t. Much like you I don’t see the problem with noncommercial copying.
I personally believe the best way out would be to remove copyright as is completely and replace it with a strict commercial regulation.

I.e. the copyright holder will be the only one who gets to make copies for profit and claim they are the bona fide representative of the original creator. Anyone else involved in aiding distribution of copies – whether directly, indirectly, or deliberately abetting with no dual-use conflicts involved – is subject to the same audit profile as any other NPO.

This would simplify matters enormously. The main victims would be the long redundant middleman industry – and honestly, their time passed when the first microchip was invented.

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Anonymous Coward says:

Re: Re:

Those "copies" are constantly made anyway, as magnetic media frags things around, backs up, and stuff moves around servers…

In fact, how can the lender and borrower voth have a copy anyway, and a third copy in transit on the wire? What about the bits stored in swap and RAM while reading?

This copy argument has always been rather ridiculous, although it tends to have legal legs many times (also ridiculous).

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Federico (profile) says:

Re: Families locked down

Yes, but said families and students don’t need to read books, the Authors Guild incredibly claimed. If you don’t like the books you’ve already got from the generous publishers, just do something else, like playing videogames or something. Don’t ever think of borrowing a book they didn’t mean to provide you when you were locked at home.

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Anonymous Coward says:

Re: Re: Families locked down

Don’t ever think of borrowing a book they didn’t mean to provide you when you were locked at home.

You mean those books that have been out of print for 20 years (and only had one printing), are forgotten by used book stores, and were last seen in a box in your uncle’s attic beside the stuffed octopus and the box of 1980’s tax documents?

Jeez, I didn’t think they’d be so upset about the 1994 land survey of Maricopa County water rights, or "Flax and you: the businessman’s new threads." Both very good reads when you’re out of Ambien.

Nate (user link) says:

"Of course, when CDL was first announced, publishers (mainly) and The Authors Guild (which, contrary to its name, tends to be a front group for publishers, rather than authors) completely lost their shit and whined about how this was piracy."

CDL wasn’t formulated until 2018, yes?

Well, The Open Library has been in operation since 2011. So for many years, it was piracy.

Also, CDL is a legal opinion, not a law or court ruling, yes? That means under copyright law, The Open Library was committing piracy, and until it gets a ruling in its favor, it still is committing piracy.

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Scary Devil Monastery (profile) says:

Re: Re: Re:

"Do you think people should pay for books instead of masks or food?"

The reason I usually refer to copyright adherents as cultists is because that’s what you call a group of people who believe storytelling entitles them to be guaranteed a living, and anyone who claims otherwise is a heretic.

I think, looking at prior and present history, that the publishers and distributors have been quite clear that human life, dignity, and common sense isn’t on their list of priorities.

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Scary Devil Monastery (profile) says:

Re: Re:

"And here I thought people should be paid for their labor."

Ah, the old "If people can borrow books no one will ever write books again or be able to sell them".

It wasn’t true back in the 18th century and it isn’t true now. But good on you for parroting that long-debunked assumption everywhere.

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RRM says:

Books without Digital Versions? Maybe.

I was curious about the Internet Archive’s claim that they focus mostly on books that don’t otherwise have digital editions. While there are still copyright concerns about that, making digital edition of physical-only books does do good things for accessibility, is supported by legal precedent, and would go a long way to bolster their argument that they’re making books available that are otherwise unavailable while libraries are closed down.

I don’t have time to investigate all 1.4 million books they offer, and I do think they’re right in saying that a good number of their books published between, say, 1920 and 1980 or 1990 do abide by that principle. But it’s definitely not true of their most recent books despite what they say about explicitly not focusing on the latest bestsellers.

A full 78% of the books (85 of 109) they offer that were published in 2017, 2018, or 2019 have digital editions that could have been purchased legally either by the customers or the libraries. So by making these books available for anyone to "check out" with no waitlist, they are possibly harming the salability of the licensed digital editions.

That is an obvious copyright violation that does harm authors, and I don’t think it’s justifiable based on the principles they supposedly stand for, because public libraries could simply purchase these books legally for their digital collections. That would solve the accessibility issue without harming authors.

Scary Devil Monastery (profile) says:

Re: Books without Digital Versions? Maybe.

"That is an obvious copyright violation that does harm authors"

Nope. It may or may not be a copyright violation, but the preponderance of all evidence is still on the side that copyright infringement doesn’t harm authors.

Do we have to bring up the various studies showing just how much more "pirates" spend on purchasing culture as compared to others? Again?

Not, I suspect, that you’d welcome factual reality paving a road through the narrative you keep pushing here.

Federico (profile) says:

Re: Books without Digital Versions? Maybe.

[cherry picks statistic based on 0.008 % of the data]
could have been purchased legally either by the customers or the libraries

"Could" is just a fantasy or made up hypothesis. There is no logical, economic or empirical model showing that it would actually happen. The law is not there to compensate people for imaginary potential future non-events.

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That One Guy (profile) says:

'I guess I'll spend this money on food if I really have to...'

Makes sense. I mean obviously the first thing people were going to do when they found themselves isolated at home, potentially out of a job, is to buy a bunch of books, books that they suddenly didn’t need to buy because that dastardly library made free copies available.

Idiot publishers, perfect opportunity to snag new readers by making loaned copies more easily available during a time when more people have free time to read in, and instead they lose their gorram minds when a library does what libraries do, make books available.

Scary Devil Monastery (profile) says:

Re: 'I guess I'll spend this money on food if I really have to..

"…perfect opportunity to snag new readers by making loaned copies more easily available during a time when more people have free time to read in, and instead they lose their gorram minds when a library does what libraries do, make books available."

Well, it’s been that way ever since the Guild of Stationers was created. We’re still talking about the bunch of talentless middlemen so shit-scared of actual market conditions they prefer earning money through lobbied-for red flag acts rather than actually doing business.

Scary Devil Monastery (profile) says:

Re: Re: In the world of everything should be owned.

"Who’s going to sue them? We Jews? Christians? The Bible belongs to all of us."

Don’t give ideas to the passing wannabe copyright trolls reading this forums, Sam. They’re already looking for ways to get money out of JC "stealing" loaves and fishes from the peddlers and merchants at bethsaida…

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Anonymous Coward says:

Mike Masnic is a stupid propagandist

"It’s been said many times over that if libraries did not currently exist, there’s no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall."

This just flat out wrong. For most of human history Libraries served to lock up knowledge behind pay/worthwalls and it only in the recent few centuries that they’ve become place for the spreading of knowledge to everyone. This is also about the time that copyright laws and the publishing industry started to come into being.

The publishing industry hates libraries because they represent a symbol of a centuries old loss and want to erase them for that reason. Stop buying into this part of their propaganda Mike and start talking about the victory for knowledge people like you had won back in the day.

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Anonymous Coward says:

Re: Mike Masnic is a stupid propagandist

start talking about the victory for knowledge people like you had won back in the day

Was that supposed to sound like you’re jealous of Masnick? Because if it wasn’t you fucked up…

Anonymous Coward says:

Book Burning

From the Ars Technica aritcle:

"At a minimum, the Internet Archive is taking a substantial legal risk.
The question is whether anyone will actually file a lawsuit. Authors and publishers would likely have a strong case. But lawsuits are expensive, and suing an online library distributing books in the middle of a pandemic could be a public relations nightmare."

Although I generally oppose the concept, I suggest that should an author or publisher choose a lawsuit, then the public should respond with a mass book burning of said author/publishers books (used books, don’t by new to burn). Make such a "public relations" response as public as possible (Youtube, the media, personal websites, streaming if possible). The public should show that the sociopathic levels of greed have consequences, make the nightmare come true!

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Outward (profile) says:

Isn't everyone missing the point?

I’ve been a reader of Techdirt for years. I truly believe in what Mike does here….

That being said…isn’t EVERYONE missing the point?

This is a PANDEMIC. This is not some entity trying to take advantage. This is someone trying to HELP make this experience more bearable.

Authors, and publishers are in the same boat we ALL are…it’s not just singling them out and saying ‘to bad’. You say ‘don’t they deserve to be paid?’ How about the workers in McDonalds, or hotel ppl who now can’t PAY for books while they are stuck at home let alone food.

This is a temporary solution. Publishers and authors are entitiled to the stimulus and loans that the government is putting out just like the rest of us. You’d think they’d have a little compassion about cheap, best effort scans of books being lent out for 2 weeks to ppl stuck at home rather than being a bunch of jerks out it.

Now don’t get me wrong…I won’t be using this. Not because I can’t…but because I can AFFORD to pay for my own e-books and I appreciate the fact that authors need food too….but for ppl who can’t pay right now….give them a friggin break!

Samuel Abram (profile) says:

Re: Isn't everyone missing the point?

I certainly did not miss the point that we’re in a Pandemic. In fact, the librarian whose comment is the first word didn’t miss the point that we’re in a pandemic and libraries are inaccessible. I doubt other people have missed that point either, except for people saying that the Internet Archive is somehow "stealing" from authors and publishers despite libraries being inaccessible.

Scary Devil Monastery (profile) says:

Re: Isn't everyone missing the point?

"You’d think they’d have a little compassion about cheap, best effort scans of books being lent out for 2 weeks to ppl stuck at home rather than being a bunch of jerks out it."

Authors may or may not be jerks.

The main issue is that the distribution industry consisting only of redundant middlemen is an industry where being an irrational dehumanized jerk is an absolute advantage. The ideal CEO for a copyright enforcement agency is Martin Shkreli.
Copyright enforcement has, in the past, sued the poor, sued the dying, sued the elderly, sued the dead, and sued the obviously innocent.

Bluntly put anyone trying to tell the clergy of the Cult of Copyright about humanitarian values is simply wasting his or her breath.

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Crafty Coyote (profile) says:

The Crazy Part About All of This

If copyright infringement really is theft, then that means we need a trial to go on in the middle of a quarantine, which also requires gathering people together, getting judges, lawyers, jurors, and the plaintiff himself a risk of contracting the virus. On top of all the issues with trying to enforce copyright, it’s dangerous to even hold a trial right now, so what kind of leverage do the publishers think they have? Do they think they can get an arrest warrant signed by a judge when all of society has shut down?

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Scary Devil Monastery (profile) says:

"If copyright infringement really is theft, then that means we need a trial to go on in the middle of a quarantine…"

Good thing it’s not "theft" then. That part at least is known. Whether it’s actionable infringement is still up in the air.

"On top of all the issues with trying to enforce copyright, it’s dangerous to even hold a trial right now, so what kind of leverage do the publishers think they have?"

Copyright enforcers have always insisted Holy Copyright trumps any and all human values. This is not new. If anything their avarice these days is surprisingly subdued.

Anonymous Coward says:

Re: Re:

And how is it not theft? The unskippable "You wouldn’t steal a car" ads I saw as a high school student pounded home the message that breaking copyright was theft. It was only later that I learned about all the rights accused thieves have that I began to wonder how plaintiffs even win a single case. The confusion comes about because ideas are naturally non-exclusive, whereas cars, diamond rings, and apples are not. It seems like a tremendous waste of resources to go after pirates when you need signed arrest warrants. Judges and juries are easily swayed by "You could be in this same situation" appeals and the defendants have powerful due process rights. It’s always better to have physical property- and the means to physically defend it- then basing property rights on a legal fiction.

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PaulT (profile) says:

Re: Re: Re:

"And how is it not theft?"

Because one of the fundamental aspects of theft is that you deprive the original owner of the product. Steal a car, the owner doesn’t have a car to get him to work. Steal a DVD from a shop, the shop can no longer sell that copy. But, if you copy a digital file, you potentially lose a chance to sell an extra copy to the specific person who just copied it, but your inventory is fine.

"The unskippable "You wouldn’t steal a car" ads I saw as a high school student pounded home the message that breaking copyright was theft"

Those things just made me realise that the pirates were getting a more valuable product, since the people pirating could get straight into the movie rather than wait 10 minutes through trailers and lectures to access the product you just bought. Nobody who pirated 100% ever saw that ad.

Not that this stopped me buying discs, but I wouldn’t be surprised if such things were a large reason why the mainstream abandoned physical media as quickly as they did.

Anonymous Coward says:

Re: Re: Re: Re:

So my argument would be- in teaching people that breaking copyright was like car theft, the maximalists actually gave infringers more rights in a defendant-friendly environment, which would also require law enforcement to get involved, trial by jury, and Constitutional amendments that benefit the accused. In addition, the damage caps being set to resemble actual damages caused by loss would make a criminal trial over a $10 song, $50 game, or $6 image ridiculous. Why go to all that trouble to prosecute a few freeloaders when the bounty is set to actual loss and the defendant has so many powerful rights? And why do they stupidly think that avarice is the only motivation for creating a work of art?

That One Guy (profile) says:

Re: Re: Re:2 'You want to call it theft? We'l treat it legally AS theft then'

That would drastically cut down on their eagerness to go nuts over infringement to be sure.

‘Okay, so copyright infringement is theft? Great, punishment on accusation is right out, if you want to punish someone you’re required to take them to court and present your evidence, and speaking of court let’s talk about the potential fines you stand to get if you win…’

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"In addition, the damage caps being set to resemble actual damages caused by loss would make a criminal trial over a $10 song, $50 game, or $6 image ridiculous."

It’s beyond troubling that your argument makes some sense in comparison with the background of the unhinged "guilty until proven innocent" paradigm copyright trolling.

However, it’s still lunacy to equate copying and theft, or place it in the domain of the penal code. Because what you’ll have created is an exact analogue of medieval blasphemy law or ultraorthodox sharia – but backed by the full weight of government law enforcement.

Better by far to simply insist that it has to be the claimant who needs to offer verifiable proof of infringement and penalize groundless claims with fines.

Anonymous Coward says:

Re: Re: Re:3 Re:

And of course to prove actual damages. It’s one thing for a pirate to devalue an unreleased book or video game by releasing it to the public for free a week before its paid release date. But it’s another thing to say that an obscure book, movie, or song that would have been forgotten if not for an infringer should be subject to ridiculous fines. And its sheer lunacy to say that a song that "sounds sorta like" another song should have to be the subject of a suit.

PaulT (profile) says:

Re: Re: Re:4 Re:

"It’s one thing for a pirate to devalue an unreleased book or video game by releasing it to the public for free a week before its paid release date."

Actually, I’d argue not. If something is pirated before its release date, then the reason for that is that it was not available to obtain legally at that time. It does necessarily translate that the person who pirated did not then legally obtain the product once it was available. In fact, many people pirate a product weeks before it comes out despite having it on preorder, because they’re such big fans they can’t wait. But, they often don’t cancel the preorder as a result, they just use the pirate copy before they can use the legal one (or use it to bypass the DRM that stops them using the product they legally own)

"But it’s another thing to say that an obscure book, movie, or song that would have been forgotten if not for an infringer should be subject to ridiculous fine"

Those people deserve the money more than a major blockbuster that still sells millions of copies. But, it could be that the reason it was pirated was because it was so obscure, and therefore the person who pirated either had no other choice, or needed to confirm it was a good purchase before spending the money, especially in the current climate.

"And its sheer lunacy to say that a song that "sounds sorta like" another song should have to be the subject of a suit."

Well, of course. You show me something that does not have roots in something that came before, and I’ll show you a unique example that’s not reflected in the vast majority of art ever created.

Anonymous Coward says:

Re: Re: Re:5 Re:

"Those people deserve the money more than a major blockbuster that still sells millions of copies. But, it could be that the reason it was pirated was because it was so obscure, and therefore the person who pirated either had no other choice, or needed to confirm it was a good purchase before spending the money, especially in the current climate."

Best way to handle it- do it for free. Remove the profit motive and say that you preserved a book/movie/image/song pro bono publico; that might affect your innocence or guilt in a trial.

Anonymous Coward says:

Re: Re: Re:2 Re:

in teaching people that breaking copyright was like car theft, the maximalists actually gave infringers more rights in a defendant-friendly environment

Bullshit. If you’re trying to hang someone, making the rope longer doesn’t mean it makes the defendant’s situation better if they’re hanged all the same.

which would also require law enforcement to get involved, trial by jury, and Constitutional amendments that benefit the accused

When was the last time you saw any of those kick in? Your problem isn’t that it’s hard to convict people. Your problem is that every time a judge asks to see your proof you throw a goddamn tantrum because your standards of pinky swearing isn’t enough to convince most judges.

In addition, the damage caps being set to resemble actual damages caused by loss would make a criminal trial over a $10 song, $50 game, or $6 image ridiculous

Literally the same thing happens when you have a trial over a $10, $50 or $6 physical item. Is a full length criminal trial for the above dumb? Probably. Are the potential penalties just as damaging? Fuck no! Why are you IP fanatics so terrified of actually punishing copyright infringement like theft? You have the gumption to call it theft but piss and moan when it comes to actually paying the same kind of penalties.

Actually no, I think most people know why – it’s because putting out a shitty movie or song, claiming losses are attributable to piracy, then suing children and grandparents who can’t fight back is your fucking meal ticket, just like any other charlatan and parasite.

Why go to all that trouble to prosecute a few freeloaders when the bounty is set to actual loss

Actual theft isn’t punished based on actual loss. Someone who steals $6 isn’t going to only owe $6 in punishment, but you knew that. You’re just looking for excuses to pull in several thousand bucks as payment for wasting the courts’ time.

and the defendant has so many powerful rights?

Cry me a goddamn river. You want to ruin someone’s life, put up the evidence or shut up!

Anonymous Coward says:

Re: Re: Re:3 Re:

I hate copyright as much as you do, but I was pointing out that applying basic criminal law to copyright cases would actually give us pirates and pirate sympathizers the world. It surprises me that plaintiffs actually do win these cases, as it would only take a modicum of self-sacrifice and generosity to tie the hands of the accuser.

Anonymous Coward says:

So knowing the rights of a defendant can help you out in one of these trials, as can knowing that the penalty is capped to a reasonable amount. That’s a lot better than having to go through the "fear tactics" of dishonest lawyers talking about six-figure damages and charging $300/hour for information that I later found out for free when I took a crash course in criminal law.

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