Open Library is a project of Brewster Kahle’s Internet Archive. We’ve written about Kahle, the Archive, and Open Library a few times, including some times I’d forgotten about. Kahle’s Internet Archive was first founded as a way to keep a historical record of the ever-changing Internet for the benefit of future sociological and cultural researchers; it later expanded into archiving other media as well. More recently, Kahle started collecting print books, and scanning them as well as archiving them; it was his intention to collect and save one of every print book ever published.

These scanned books would also go into the Open Library, which was a collaborative venture with some public libraries, in which he would scan those libraries’ books and make them available for checkouts at participating libraries’ physical locations only, at least at one point. But even earlier than that, Kahle’s plans for Open Library seemed likely to draw controversy. According to an article in the Wall Street Journal, Open Library would be treating the paper book and its scanned copy as if they were one and the same item:

With its latest project, the organization is making inroads into the idea of loaning in-copyright books to the masses. Only one person at a time will be allowed to check out a digital copy of an in-copyright book for two weeks. While on loan, the physical copy of the book won’t be loaned, due to copyright restrictions.

At the time, the article acknowledged there could be legal challenges from the Authors’ Guild or others, but they don’t seem to have materialized. Which is curious, given that Open Library doesn’t seem to be restricting its checkouts to in-library locations anymore.

xcom-coverI had forgotten all about Open Library and its plans until the other day. I was searching the Internet to see what I could find out about Diane Duane’s tie-in novel for the X-COM computer game, when I happened across this page at Open Library offering it for checkout in PDF, EPUB, or screen-reader formats.

Curious, I "checked out" the EPUB version of the book. It turned out to be an apparently unproofed scan of the book–right down to including the page number/author/title footers, and a zillion errors per page. The PDF version was a photographic scan of a yellowed-page paperback edition of the book. Both were protected with Adobe Digital Editions DRM, much like a book you might check out through the Overdrive public library program, limited to one two-week check-out at a time, as with any digital library.

Further examination turned out quite a few of Duane’s other books, as well as even more books by another author I know, Mercedes Lackey. Not all, or even most, were available for checkout, but quite a few of them were.

I checked with Lackey and Duane about these books appearing on the site. Lackey confirmed that she had never been asked for permission to host her books, and she or her publishers would be filing DMCA takedown notices. Duane wrote, via Twitter direct messages:

I get real cranky when books are scanned / sold / borrowed without seeking permission. DMCAs routinely follow. I am not a monolithic corporate entity. I am a writer who might give you my stuff for free if for a good cause. I am seriously unlikely to roll over without comment if my creative output is exploited without asking me first. I make this stuff out of nothing. It costs me effort and rent and grocery money and taxes to make it. I would appreciate it if those who consume my creative output would contribute. Yes, "ideas should be free". But should art? And why are those who think so routinely not artists? Winking smile

(I also reached out to Open Library and Prima, publisher of the X-COM novel, via contact forms but have not yet received any response. I will update the article if I do.)

In a recent post on The Digital Reader, Nate Hoffelder quoted a letter from Robert Miller, Global Director for eBooks at the Internet Archive to “Archive Sponsors, Content Contributors, and Partners”. Miller wrote:

Overall, we now have 4.4 million eBooks online (Archive.org), the difference of 4.4 and 2.0 million is  from uploads of items digitized elsewhere. We also have 500,000 modern eBooks for the print disabled and 250,000 modern eBooks (OpenLibrary.org). Our next goal is to reach 10 million public domain and modern eBooks on line. We are looking for partners that wish to fund more modern books to grow our contemporary global library. By working together, I am confident we will reach this goal in the near future.

The public domain books are, of course, not the problem. Since they’re in the public domain, Open Library can do anything it wants to with them, including checking them out.

And some of those modern e-books, for the print disabled, are only available in protected DAISY format. (For example, Lackey and Piers Anthony’s If I Pay Thee Not in Gold.) These books aren’t the problem either.

DAISY is a digital talking books reader, and its protected format uses a key issued by the Library of Congress, available only to those who have been medically certified to be disabled enough to need it. There is an exemption built into US copyright law, 17 USC § 121, that permits authorized entities to reproduce copyrighted works for consumption by the blind, as long as they are distributed in protected formats that can only be used by the visually-impaired. There is also a movement to codify this sort of exception into international treaty, though some rights-holders object.

The problem lies in those 250,000 modern e-books. In a podcast interview with Kahle by TeleRead contributor Sue Polanka, he said he had been trying to get permission from publishers wherever possible, because that would allow checkout of “more than one copy” of a given book, but that he’d only been able to get permission for about a hundred books at the time. Which meant the vast majority then, and probably now, are scanned from library books under the principle of treating the paper and e-book editions as one and the same. And, as Miller wrote above, they’re looking for people to fund scanning even more of these modern books.

The problem is, it seems unlikely that this print-plus-scan-equals-single-copy theory is legally sound, which would mean Open Library is committing copyright violation on a massive scale.

Here, look at this, taken right off the copyright page of that X-COM PDF:

Fullscreen capture 7102013 65907 PM.bmp

I’m not sure if that quite qualifies as irony, but it seems pretty plain. Open Library is violating copyright by hosting these books. Technically, the Internet Archive is violating it by scanning them—just as Google did for its Google Books program that got the Authors’ Guild so up in arms. The weird thing is, all Google wanted to do, originally at least, was scan, index, search, and serve up snippets—and perhaps make bank by snagging a referral fee for directing people to where they could buy the book from an online store. Not make them available in their entirety (at least, except under the terms of the proposed-and-shot-down settlement that would have let them become a de-facto e-book store for orphan works). But the Authors’ Guild jumped all over them.

So why isn’t it jumping all over Open Library for actually making books available?

Most commercial e-books are not sold but licensed, whether publishers and stores say so out front or not, but library e-books are more licensed than most. Publishers set specific and often restrictive terms for libraries to be able to check out e-books, fearing that library e-books lead to cannibalization of sales. Sometimes this has been the source of controversy, as publishers elected to impose limits on how often books could be checked out, or even disallowed them to be checked out at all.

And publishers have long resisted treating book formats interchangeably—insisting, for example, that each separate format of e-book Fictionwise offered had to be treated as its own separate and distinct edition. Buying a MOBI format book didn’t entitle someone to a copy of the EPUB too, and vice versa, even though they were the exact same book with the exact same text. Are they going to let libraries treat a paper book as an e-book surrogate willy-nilly? I don’t think so.

Now, Open Library might be able to make a case for the fact that they should be able to treat a paper and electronic copy made from it as interchangeable, under fair use. There is case law supporting fair use interpretations for the ability to time-shift and format-shift media for one’s own personal use after all. (Though what Open Library is doing with these files goes a bit beyond mere “personal use.”)

But the thing is, that’s all Open Library can do: make a case. Fair use is a defense, saying “this one copyright infringement is okay because…” and like all such defenses, it has to be decided by a judge. (And frankly, I have my doubts that what Open Library is doing will pass the four-factor test. It would be nice if it did, but it seems to be stepping on too much of publishers’ own prerogatives for a court to let it pass. Though I could be wrong!) Until a court passes it, it’s still a copyright violation and, as such, is illegal and subject to prosecution.

Or maybe it’s just subject to having individual works taken down under the DMCA’s “safe harbor” provisions. But I don’t know about that. I’m not a lawyer, but it seems to me safe harbor’s meant to protect you when it’s your users uploading the copyrighted content. Do you really get to benefit from that when you’re the one who’s doing it, and you know the work is copyright-protected?

As I said before, I’m surprised the Authors’ Guild hasn’t called foul on this. When I was researching this article, I looked for any signs that anyone had complained about all these still-in-copyright books being available for checkout, and couldn’t find any. Has it just passed under their radar?

Whatever the reason, barring explicit permission from the rights-holders, these books shouldn’t be available. Even in DRM-protected and time-limited format. (Thanks to Apprentice Alf and Calibre, the Adobe Digital Editions DRM it uses is basically a joke anyway.) Open Library’s goals of increasing literacy and making books more widely available are laudable, but in doing this without permission, it is violating the authors’ rights. Even if no money is changing hands, the rights-holders have the right to decide how their books are presented.