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January 11, 2018

Alert: Copyright Infringement By the Internet Archive (and What You Can Do About It)



Posted by Victoria Strauss for Writer Beware

The Science Fiction and Fantasy Writers of America has issued an alert on copyright infringement by the Internet Archive. Other professional writers' groups taking notice include the UK's Society of Authors, which has posted an alert on its website, and the USA's Authors Guild and National Writers Union, which have alerted their members.

I've reproduced SFWA's alert below. Although this seems to be the first time widespread attention has been paid to it, IA's massive scanning project is not a new endeavor. See this 2013 article from Teleread's Chris Meadows.

I've commented on my own experience at the bottom of this post.

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From the Legal Affairs Committee:

INFRINGEMENT ALERT

The Internet Archive is carrying out a very large and growing program of scanning entire books and posting them on the public Internet. It is calling this project "Open Library", but it is SFWA's understanding that this is not library lending, but direct infringement of authors' copyrights.

We suspect that this is the world's largest ongoing project of unremunerated digital distribution of entire in-copyright books. An extensive, random assortment of books is available for e-lending—that is the “borrowing” of a digital (scanned) copy. For those books that can be “borrowed,” Open Library allows users to download digital copies in a variety of formats to read using standard e-reader software. Unlike e-lending from a regular library, Open Library is not serving up licensed, paid-for copies, but their own scans.

As with other e-lending services, the books are DRM-protected, and should become unreadable after the “loan” period. However, an unreadable copy of the book is saved on users’ devices (iPads, e-readers, computers, etc.) and can be made readable by stripping DRM protection. SFWA is still investigating the extent to which these downloadable copies can be pirated.

These books are accessible from both archive.org and openlibrary.org. If you want to find out if your books are being infringed, go to Internet Archive's search page and search metadata for your name. You have to register, log in, and "borrow" the books to see if they are there in their entirety. A secondary search on Open Library's search page may turn up some additional titles, but will also show books that are in the Open Library database that have not been infringed.

If you believe that your copyright has been violated by material available through the Internet Archive, you can provide the Internet Archive Copyright Agent with a Digital Millennium Copyright Act takedown notice. Alternatively, you can use the SFWA DMCA Notice Generator to create a DMCA notice for you. As a temporary measure, authors can also repeatedly "check out" their books to keep them from being "borrowed" by others.

A DMCA notice must include:

• Identification of the copyrighted work that you claim has been infringed;
• An exact description of where the infringed material is located within the Internet Archive collections;
• Your address, telephone number, and email address;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the copyright interest involved or are authorized to act on behalf of that owner; and
• Your electronic or physical signature.

The Internet Archive Copyright Agent can be reached as follows:

Internet Archive Copyright Agent
Internet Archive
300 Funston Ave.
San Francisco, CA 94118
Phone: 415-561-6767
Email: info@archive.org

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Here's my personal experience with the Internet Archive and Open Library.

Four of my books have been scanned and are available for borrowing. All four are in copyright, "in print", and available for purchase in digital, print, and/or audio formats.


When you borrow a book from IA or Open Library, you can either read a photographic scan of it on-screen via the Internet Archive BookReader, or download it as an EPUB or PDF. The "borrows" are said to expire after 14 days.

On January 1, to test all of this, I borrowed and downloaded Passion Blue. The PDF is the photographic scan rendered page by page (rather than double-paged, as in the on-screen reader). The EPUB is an OCR conversion and is full of errors--weird characters, garbled words, page headers and footers in the text, and the like.

I also sent a DMCA notice for Passion Blue. I emailed the notice on January 1, and a second notice on January 9. As of this writing (January 11), I've received no response.

I'll update this post as I get more info.

UPDATE 1/25/18: Internet Archive's Brewster Kahle has responded--sort of--to the controversy, offering what Nate Hoffelder at The Digital Reader dubs a "good works" defense.

According to Kahle, the IA's mission is to preserve books "for the long term". It's digitizing books "mostly from the 20th century" that "are largely not available either physically or digitally" including "many...books that libraries believe to be of historical importance such that they do not want to throw them away, but are not worth keeping on their physical shelves". For creators who object, there's "a well known 'Notice and Takedown' procedure....The Internet Archive takes prompt action and follows the procedure, generally resulting in the work being taken down."

Kahle does not address the IA's scanning of 21st century books that are in-print and commercially available. According to a recent update from the Authors Guild, feedback from members and authors' groups has "confirmed that a massive number of in-copyright books, some quite recent, are available in Open Library, as well as through the Internet Archive itself."

As for that well-known takedown procedure and the IA's "prompt action" in response...I have still not received any reply to my two DMCA notices, the first of which was sent nearly a month ago.

6 comments :

Inkling said...

A clever developer might want to create a web-based app that defeat this infringement. Authors would host it on their computers and it'd sych with the same app on other author's computers. The instant a book is checked in by one, it gets checked out by another or, if holds are permitted by Internet Archive, these apps would stack up holds for months in the future. These books would never be accessible for genuine infringement.

Keep in mind the rationale they're using. Copyright law is essentially unchanged since the late 1970s, and thus does not take into account any technology since then. Scans of printed books and OCRed text should be treated the same as new editions, abridgements, movie adaptations and the like. No one should be able to post them without the permission of the copyright holder. But copyright law needs to state that firmly and clearly.

Virginia Anderson said...

Victoria suggested that I report my interaction with Internet Archive. The post was too long to post here; see https://justcanthelpwriting.wordpress.com/2018/01/27/a-response-about-copyright-violation-from-internet-archive/

Relevant parts of my blog post:

On the Internet Archive site I found a pdf of the 1989 mass-market paperback of my novel, King of the Roses. I sent two email takedown notices using the form from Victoria’s post.

I got a response. Here’s how. On the site's blog page I posted a comment stating that I had sent takedown notices but had received no reply and that my next step would be to seek legal advice and, if necessary, take Internet Archive to court.

Within 36 hours, I received the following email:

Dear Ms. Anderson,

Thank you for your emails.

To help clarify things regarding the item you have identified (https://archive.org/details/kingofroses00virg) – blind and print-disabled patrons (verified by formal institutions including the Library of Congress) may access special electronic versions of the book that can be used with accessible software. They agree not to make copies or distribute materials. Our program to enable blind and print-disabled access has been in operation since 2010 (our original press release w/links to stories in the media can be seen here)[https://blog.archive.org/2010/05/06/over-1-million-digital-books-now-available-free-to-the-blind-and-print-disabled/].

There is no other access available to this item (lending access for general users has been disabled). Please feel free to check the links under “Download Options”. They are all inoperable or include only to metadata (i.e., catalog information about the text, not the text itself).

And of course, the Internet Archive offers these texts on a wholly non-commercial basis. Our project, organization, and mission are entirely charitable and oriented towards broad social benefit.

Again, thank you for getting in touch with us. Hoping this information is helpful.

The Internet Archive Team

So my book is no longer in their free library, but a free version is still available to disabled readers with “accessible software” who agree not to share the book with others.

My main question:
Doesn’t the decision of the Internet Archive to retain this version of my book still constitute copyright infringement, since these readers are receiving access without my permission?

In response, a blind commenter linked me to the Marrakesh Treaty, which says that actions like that undertaken by Internet Archive to supply accessible texts to print-disabled readers are completely legal. Here is a link my reader supplied: http://www.copyright.com/blog/putting-end-book-famine-blind/. The most relevant passage of the Treaty for authors is Section 4.2.a, which states:

(a) Authorized entities shall be permitted, without the authorization of the copyright rightholder, to make an accessible format copy of a work, obtain from another authorized entity an accessible format copy, and supply those copies to beneficiary persons by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve those objectives, when all of the following conditions are met:

(i) the authorized entity wishing to undertake said activity has lawful access to that work or a copy of that work;

(ii) the work is converted to an accessible format copy, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to the beneficiary person;

(iii) such accessible format copies are supplied exclusively to be used by beneficiary persons; and

(iv) the activity is undertaken on a non-profit basis;

I have written WIPO for the definition of "lawful access." My respondent, Kevin, from https://newauthoronline.com/, explained how print-disabled readers access and process texts. Feel free to follow up on what he provided.

Victoria Strauss said...

Virginia,

Thanks so much for your detailed comment.

Most trade book contracts include a clause authorizing the publisher to grant rights for free to non-profit organizations to provide versions of the book for the disabled. For instance, here's the clause in my HarperCollins contract of a few years ago (it appears under Subsidiary Rights):

"Braille, large-type and other editions for the handicapped (the Publisher may grant such rights to recognized non-profit organizations for the handicapped without charge and without payment to the author)."

I would guess there's similar language in your original contract for KING OF THE ROSES. So I think the IA is probably on fairly firm ground here. The Authors Guild agrees; it thinks the IA's encrypted Daisy editions for the print-disabled (which need a special key to decrypt) are probably fair use, and because of their specialized nature aren't likely to interfere with sales.

I noticed that another book of yours, STORM FRONT, is on Open Library: https://openlibrary.org/books/OL1547403M/Storm_front. Like KING OF THE ROSES, it has a Daisy edition--but there's also a scan of it, and it can be downloaded in PDF or EPUB form. This is the infringement that the Authors Guild and others are most concerned about. You might want to send a DMCA notice for this one.

I find it really interesting that you received a response within 36 hours, whereas I've sent three DMCA notices (for the same book) since January 1 and haven't gotten a single response. Is IA responding selectively--just to authors to whom it can legitimately refuse takedown? That would be troubling.

Virginia Anderson said...

Hi, Victoria.

From what I learned this weekend, I agree that the Marrakesh Treaty and other permissions put organizations like the Internet Archive on pretty solid ground with regard to supplying free copies to vision-impaired persons.

Storm Front also appears on the Internet Archive site. I have not planned to republish this book, although I do own the rights. I'll probably ask that it be taken down and see what happens.

I suspect that I got results because I posted that comment on their blog page. Unless they've taken it down, you can see it there, as can other visitors to the site. I'm just stubborn enough that I would have done what I threatened, taken legal action. It made me angry to receive no acknowledgment of my notice. It might be that they save time and resources by waiting to see to what lengths an author will go. They have taken KOTR out of their free lending library, but will retain it in the library for disabled readers.

Thanks for opening up this topic. It has been a learning experience for me.

Victoria Strauss said...

Where exactly did you post your comment? I looked for it but couldn't find it.

Frances Grimble said...

I see no way they are preventing distribution to others if the vision disabled person is unethical.

 
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