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

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  1. identicon
    James Plotkin, 27 Aug 2012 @ 6:38am

    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:

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