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I first heard about this story via Mike Shatzkin in a lengthy piece at his Idea Logical blog, then in a shorter piece by Mike Masnick at TechDirt. Since then, I’ve seen it crop up in a number of different places, and it’s just too beguiling an issue not to discuss.

An ethicist at the New York Times, Randy Cohen, has opened a can of worms and dumped them all over e-books with a column in which he suggests it is ethically fine to download an electronic copy of a book (in this case, a book that was not yet commercially available as an e-book) when you’ve purchased the printed copy.

Cohen compares it to the practice of copying a CD to your iPod, saying:

Buying a book or a piece of music should be regarded as a license to enjoy it on any platform. Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you’ve violated the publishing company’s legal right to control the distribution of its intellectual property, but you’ve done no harm or so little as to meet my threshold of acceptability.

Not surprisingly, many in the publishing industry have objected. Richard Curtis at E-Reads calls Randy Cohen “E-Book Enemy #1” and accuses him of “[condoning] ripping off e-books”.

Megan Halpern at Melville House Publishing writes:

As many others have pointed out since Sunday morning, buying a book does not give you license to the use of that material.  It simply makes you the owner of a beautiful hardcover that you can add to your shelves and read for a lifetime, whether or not your Kindle is charged.

Space Shifting and Music

I’m not a lawyer, but I’ve read a lot about this issue.

At issue here is the legal concept of “space shifting”, as originally laid out in the case that laid the groundwork for the coming of the iPod: RIAA vs. Diamond Multimedia. The RIAA sued over Diamond’s Rio MP3 player, and the court held that consumers have the right to “space-shift” media that they own.

In an important decision, a Federal appeals court has partially answered that question by declaring that just as television viewers have the right to time-shift, computer users have the right to “space-shift” — they can make additional copies of digital files they have obtained lawfully in order to listen to them in different places.

If you own a Metallica CD, you can legally rip it to MP3 and put it on every computer and mp3 player you own, and Metallica can’t do a thing about it.

Space Shifting and Books

If we expand the space-shifting right to other media, then yes, buying a book does give you license to the use of that material. If, that is, you do the conversion yourself.

Courts have held that there is a legal difference between ripping a CD to your hard drive and downloading or otherwise making use of unauthorized copies of the music on that CD even if you own it—that’s why Michael Robertson’s MP3.com music streaming service (which permitted people to verify they owned a CD by putting that CD in their own CD-ROM drive, then stream the music they owned from copies of the CD on Robertson’s MP3.com server) got shut down.

So legally, downloading an illicit e-copy of a book that you already own would still be a no-no. But that’s not the question Randy Cohen was addressing.

Legality vs. Ethics

Consider this hypothetical scenario: you buy a CD, but your CD-ROM drive is on the blink and you can’t rip it. So you download the music from peer-to-peer. Granted, it’s illegal, but have you done anything ethically wrong?

Whether you ripped legally or downloaded illegally, the music from the CD you own ends up in digital form on your hard drive. No money has changed hands to get you the digital copy—in fact, you’ve used up some of that “pirate” uploader’s monthly bandwidth allotment, which could cost him money if he’s charged for it.

The difference with books is that, traditionally, scanning a paper book into an e-book has taken a lot of time and effort. You can’t just “rip” an analog paper book the way you can a music CD that already has everything digitally encoded. You have to scan it, then proof it, then format it.

So to get a legal e-book copy of a paper book you already own, you generally have to pay—either in effort (to scan it) or in money (to buy it).

Generally speaking, the only ones who’ve been willing to pay in effort have been the “pirates,” because they get the dividend of egoboo from releasing their illicit (well, licit for their personal use alone, illicit for everyone else’s) e-book into the wild. The time it would take to scan, OCR, and proof a book is more valuable to the average consumer than the monetary cost of buying the e-book from an e-book store, assuming it’s available.

And if you want an e-copy of a book that you own that’s not available for money (for example, the Harry Potter series, or the Stephen King book Cohen’s original inquirer mentioned), you can put in the effort to scan it yourself, or you can take the illegal (but possibly still ethical—after all, you have already paid for the book) shortcut.

And that’s what has the publishing industry up in arms. Because they’ve gotten used to people paying for paper and electronic formats of their books separately, publishers tend to believe that the only way to get a separate electronic format of a printed book should be to pay for it.

Planted

This attitude isn’t exactly a new thing, either. Back in 2004, on my own blog, I wrote about the “failure” of Stephen King’s self-e-pub project, The Plant. King insisted that he had to receive payment for at least 75% of downloads, and had to be paid for each separate download, even if a consumer simply wanted a copy in multiple formats for reading both on his computer and his PDA.

In a phenomenal display of missing the entire point of no-overhead digital downloads, King compared the practice of multiple downloading to saying, “Since I have the hardcover, you should give me the paperback free.”

On the other hand, I would compare King’s attitude to saying, “It’s nice that you’ve bought the CD, but you have to buy the MP3s, too.” And as RIAA vs. Diamond Multimedia shows, that simply does not wash.

Disruption on the Horizon

At the moment, owners of paper books who want the e-book version too have the choice of paying for it (if it is available at all), scanning it themselves, or downloading it illegally. Since scanning requires special equipment and more time and effort than most people find worth it (why spend several hours of hard work to get what you could get instantly for $10 instead?), most people are content to buy it (which is good) or download it illegally (which is bad).

And so the publishing industry is, as I said, used to people having to pay separately for e-books—because if you don’t, you’re probably either a pirate uploader or pirate downloader, both of which are illegal. Or if you do, legally, scan books for your own consumption with no intent to distribute to anyone else, there are by and large too few of you for them to worry about right now.

But we’re on the verge of another potentially disruptive evolution in scanning technology that could affect the e-book market in unexpected ways. A college student has created a $300 rapid e-book scanner using discarded wood and a couple of cheap digital cameras. Tokyo researchers have created a very rapid scanner that will scan a book just by riffling through it—and they foresee a future when everybody’s smartphone has one built in.

Someday, it may very well be that the first thing someone does after buying a paper book is take it home and throw it in the scanner, and end up a few minutes later with an e-book that is at least as high-quality as some of the current scanned-but-not-proofed Kindle offerings (and probably better; OCR technology gets better the faster computers get)—and unlike with those, he can correct it as he reads through it.

(I could see an e-book reader application made for this purpose that lets you flip between text and image views like with Distributed Proofing, and then enter corrections with the device’s on-screen keyboard.)

The Fate of Publishing in a Space-Shifting Future

What is the publishing industry going to do then, especially if e-books have taken up a significant portion of the market at that point?

Probably the same thing the music industry is now. Even though the music industry was aghast in the wake of the original RIAA vs. Diamond Multimedia decision—

One veteran copyright lawyer pointed out that if the Audio Home Recording Act does not apply to personal computers, which are important copying devices in the digital age, the law becomes almost meaningless and offers little or no protection to copyright holders, who worry about online music piracy.

“This leaves the record industry in trouble,” said Robert Osterberg, a New York lawyer with Abelman, Frayne & Schwab who specializes in the area of copyright and music. “Unfortunately, they have a wide gap to fill.” Osterberg said he believes the RIAA will seek to lobby Congress to have the law amended to extend to computers and computer peripherals.

—it is still perfectly legal to rip CDs, and for some strange reason digital music is still selling better and better (though CD sales are declining) and the music industry does not seem to be in any danger of dying out (as much as it continues to insist that, no, it really is).

The publishing industry had probably better get ready for the coming storm. I give it five years, ten at most, before home or phone scanning technology becomes ubiquitous. Then suddenly everyone will be making his own e-books.

Heinlein on Commercial Entitlement

In closing, I’m reminded of a Robert Heinlein quote that has often been cited in this age of digital turbulence:

There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.

The publishing industry might do well to keep that in mind as the era of the personal scanner approaches.

 
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