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.
UPDATE 2/22/18: The IA is pretty bad at responding to DMCA notices. A followup post on my…interesting…experience trying to get my books taken down: How the Internet Archive Infringed My Copyrights and Then Blew Me Off.
I just got a call from Dexter Williamson, whom I sent straight to voice-mail since my phone recognized it as suspected spam.
He sent me a generic email about an I query I made. I never made an I query with this company, looked into a self publishing company about 3 years ago, but not this one.
The address he provided is in Quebec, Canada near the Vermont border (1111 Boulevard DR Frederik Phillips Saint Laurent QC).
Personally it seems fishy. I'm personally going to stay away.
These days the Authorities are lenient regarding these issues as mistakes may be made.
That is why if you see that there is Copyright infringement, you can report it.
The entity perceived in committing the copyright infringement is then warned to take the offending material offline (which they do).
The same applies for many perceived types unlawful acts of copyright infringement.
Warnings are issued and the entity perceived in committing a breach of law, is given the opportunity to correct the "error".
Even if a tax evader is reported to the Tax department, the Tax department will look into it, address the person(s) involved, and the person(s) are then given the opportunity to correct any discrepancies in their tax returns rather than any charges laid.
So basically these forms of perceived breaches in copyright law are just technicalities that constitute a careless error at the most.
That is why entities such as the Internet Archive clearly states that if you find Copyright material, to report it to them so it may be taken offline.
The reason that such procedures are the "norm" is due to the ever increasing presence of the Internet, and any cross-border transactions that may be perceived as infringements.
Until there is global unified law regarding Copyright infringement, such procedures may exist that are perceived to be "loopholes" by many entities with an online internet presence.
For example, some material may only have local copyright protection, and when it crosses a border, there is no infringement of copyright.
The other side to the story is that any Judicial System these days will issue Judicial Orders to "Block" such an Entity with an online presence.
And most democratic country's will abide by the request from another country's Judicial System.
Although with the ever increasing use of VPN, the point is rather moot. And I perceive that the Judicial Systems and Countries involved know it.
Why is this so?
Because Internet traffic generates a lot of money all around, and even if true copyright infringement is the case, and the authors and publishers of the material are being robbed of income, such criminals doing the robbing still spend the money robbed on taxable items.
Thank you for the warning about YMO edition publishing. I talk to MAJESTY PEREZ claiming to be manager or supervisor. I can seriously say that she is high. She sings like she's drunk and she is forcing me to sign up with them. She asked me how much I can do like 10 times. Her accent is funny.
I never answered her call anymore and requested to be removed from their list.
Victoria, can you please check on this clone?
No, it's not true. Of course, if I were a puppet of Author Solutions, that's what I would say, right?
I'm a new author. Erin from Westpoint publishing left a voicemail. So I emailed her about my desire to publish. I told her about this blog which I found after my research about their company. She told me that Victoria Strauss is a puppet of Author Solutions and that she is paid by the company to downplay the new self-publishing businesses. They are afraid to lose the business because of these new companies. They are already losing a lot of employees and their authors are asking for refund because the new publishers are more affordable and authors are getting more results from them.
I am confused now. Is this true?
Keep away from YMO edition publishing. I received a call from them and I suspect they are scam. Can you please check on this?
Unknown 6/07,
I'm sorry to tell you that Toplink Publishing is on my list of scam publishing and marketing companies based mostly on the Philippines (despite their US addresses and phone numbers). I haven't heard anything about Toplink being shut down, but poor communication is a common complaint with these companies, and they do often vanish without notice. I just checked and its website is up and working.
Has anyone heard anything about Toplink publishing being shutdown because of the pandemic? I have published two books with Toplink, and have a contract for them to publish a third. I just finished the manuscript, and have been emailing every contact I have at Toplink, and have left phone messages for someone to contact me. No one has responded.
"…which I would assume they create from a licensed, paid-for copy."
Wrong. Large numbers of the books the IA has scanned have not been purchased by the IA, but donated by various sources (including some of mine, all in-print and commercially available; there were notations to indicate donations on the listings).
Beyond that, the concern isn't DRM protection, but the creation of an additional format without permission from the copyright holder, potentially impacting authors' book sales. Justifying this by claiming to be making available books that have fallen out of availability is hypocritical, considering the very large number of in-copyright and commercially available books that are included in the project. (Also, just based on my own books, the scans are of very poor quality.)
Here's what the Authors Guild has to say about the novel legal theory behind what the IA is doing, known as "controlled digital lending." https://www.authorsguild.org/industry-advocacy/controlled-digital-lending-is-neither-controlled-nor-legal/
"Unlike e-lending from a regular library, Open Library is not serving up licensed, paid-for copies, but their own scans."
…which I would assume they create from a licensed, paid-for copy.
The PDFs and ePubs available for download after borrowing a book are protected as loans using Adobe Digital Editions. While there are tools to remove DRM protection from purchased ADE books, there does not seem to be any library currently available that allows to remove lending limitations from ADE-protected books. Pretty much the only ADE DRM removal library out there, DeDRM, seems to explicitly exclude removing DRM from borrowed books because it is against their principle – its goal is for people who purchased copies of a book to be allowed to exercise their legitimate right to read it where and how they want, not to illegitimately turn a borrowed copy into an ownable one. The potential for removing DRM protection from books borrowed from the Internet Archive therefore seems to be a purely theoretical possibility at this time.
Some clever programming could probably be done to manually extract pages from the web reader and re-assemble them into an unprotected PDF. I do get the concern there, in the case of books that were never otherwise available in digital form. Otherwise, there are probably a hundred easier ways to get an unprotected copy of the book than trying to circumvent the Internet Archive's borrowing enforcement. ADE is a pretty tough nut.
Regarding the comment that "they wouldn't find it very profitable to stay in business": the Internet Archive is not a business, and doesn't turn a profit. It's an officially designated library and a non-profit, funded entirely through donations. Questions of copyright aside, they're not monetising their library and loans. All access is free worldwide and they don't use advertisement, either.
why not just sue the bastards because they cannot actually legally "borrow" or accept a "lended" book from anyone. In the basics of even a smashwords header page or most published books carry an optional clause that derails legal lending of an authors books. If you have this clause in your book and a person buys it or lends it or accepts a lent book with this clause in it,..technically they are breaking the law and can be pursued for damages.
if everyone followed up on this they wouldn't find it very profitable to stay in business.
Phillip
I see no way they are preventing distribution to others if the vision disabled person is unethical.
Where exactly did you post your comment? I looked for it but couldn't find it.
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.
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.
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.
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.