Got a Reader Today - Some Thoughts

[bingle]

Originally Posted by NatCh

Making copies of your paper books for your own use has long been held as "fair use" in the U.S., so I think that scanning my owned paper books would likely fall under that precident. I don't see how it could be a violation of the DMCA since a p-book isn't digital in the first place!

Yeah, it's not a DMCA violation, but it might not be Fair Use, either. Copying an entire work breaks one of the Fair Use tests. It's a four-pronged thing, if I remember correctly - amount of the work copied, reason for copying (academic uses, etc), type of the work (you can copy the phone book to your heart's content), and effect on the market for the work (if there's no digital copy available to purchase, this would probably work in your favor). Of course, you'd really have to go into court to have a decision on it, I think.

I talked to an attorney involved in the RIAA cases who said that format-shifting is still in a legal gray area. There haven't been any court cases to decide whether ripping your own CD for your own use is legal or not. Books and xerox machines have been around longer, so there may be precedent in that case.

[da_jane]

But Fair Use in terms of copying applies to texts not owned by yourself. I think this more correctly falls under time shifting which is entirely appropriate (ie., recording of TV shows to be watched at a later date).

[da_jane]

And DRM doesn't apply to paperbooks, as someone rightly pointed out. DRM applies to digital copies. You aren't violating any DRM by turning the book into a digital copy.

[bingle]

Originally Posted by da_jane

But Fair Use in terms of copying applies to texts not owned by yourself. I think this more correctly falls under time shifting which is entirely appropriate (ie., recording of TV shows to be watched at a later date).

It applies to _copyrights_ not owned by yourself. Even personal copying falls under copyright law - one of the "rights reserved" to the copyright holder is the exclusive right of reproduction. Time shifting is an example of something that *is* Fair Use (still covered by copyright law, but an exemption to the absolute right of reproduction of the copyright holder). But "format shifting" hasn't been ruled on yet (at least as far as CD->MP3 goes, again, books have been around longer, so I may be wrong). It probably would be found to be legal if it were challenged. But it isn't an open-and-shut issue, sadly.

Actually, thinking about it, the law probably hasn't ruled on the issue, even for books. Prior to 1997, copyright infringement had to be for commercial gain, clearly excluding personal copying. However, the No Electronic Theft act criminalized not-for-profit infringement. There are some exemptions in there, but at the very least you're still open to a civil suit.

That's legally speaking. But practically speaking, as someone already said, you're not going to get caught, and even if you went around with a big sign telling everyone about it (or posted to an internet messageboard), you wouldn't be sued or prosecuted. However, I do think it's important that more people realize how broken our current copyright system is, so I'm going to keep harping on it ;-)

[Cthulhu]

Bingle: You beat me to most of your statements.

And regarding scanning a book not being a violation of DRM, I imagine that a crafty lawyer could press that it violates DMCA; scanning implies that you took "analog" material and made it "digital." Plus the whole things revolves around the "rights" of intellectual property which, indeed, need an overhaul and a severe shakedown cruise.

Of course, I know very little about copywright law, and could very well be talking out my waste tentacle. ;-

[da_jane]

I would think the de minimis defense would protect you. What is more harmful, converting the book to eformat or selling it a half.com?

[Cthulhu]

@Da_jane: I think we're reaching a schism; the spirit of the law versus the letter of the law.

Regarding DRM/DMCA in general, I find it interesting how many people are willing to embrace the Reader and the restrictions that go with electronic text in the hope that it will lead to more innovation, content and--with hope--freedom. I just hope we don't end up, to paraphrase Benny F. "deserving of neither content, nor freedom."
(okay, that was clunky; I hope that the current model of "renting" e-content changes for the better, as we are making good faith efforts with publishers and tech providers)

[BuddyBoy]

Originally Posted by da_jane

I would think the de minimis defense would protect you. What is more harmful, converting the book to eformat or selling it a half.com?

Bingo.

The only possible criteria for harm on converting a book to eformat would be the loss of the publisher's opportunity to sell you the book. With recording of television shows, converting of CDs to MP3s, etc as precedents, I think anyone even attempting a civil suit would be laughed out of court.

Criminal? Well, that would depend on your DMCA wouldn't it? If it was a DMCA violation I suppose you could be theoretically charged for violating the letter of the law while respecting the spirit of the law, but I doubt you'd find a prosecutor willing to be made a laughingstock enough to bring a case.

[Cthulhu]

BuddyBoy:

Again, we may be splitting hairs, but converting a CD to mp3 *may indeed be **technically** illegal.

I need to research the legal definition of "fair use." It's probably the same as "cheap."
;-

For the love of Katie Couric, why aren't there any lawyers in this forum?!

@BuddyBoy, Da_jane: I will conced your point that the criminality is mitigated because of the difficulty of prosecution. The RIAA had no way to address file-sharing until Napster blew up and all the kids were crazy for free mp3 files.

[da_jane]

I think the key is whether the "shifting" is done for private and non commercial use. If you buy a product (a book) and convert it to ebook and NOT uploading it and sharing it, you are doing it for private and noncommercial use. The seminal case on this issue is the Sony v. Universal Studios case from 1984.

The Copyright Act grants the copyright holder “exclusive” rights to use and to authorize the use of his work in five qualified ways, including reproduction of the copyrighted work in copies. I think you may be entitled to argue that there is no "reproduction" by converting the book from a paper to a ecopy so long as the paper copy is destroyed or not sold. After all, you are then left with only one copy.


The key points to that case include

a) Sony presented testimony from other major producers who indicated that the recording of shows was not unwanted.
b) The equitable rule of reason was applied to ascertain "the commercial or nonprofit character of an activity" and "the effect of the use upon the potential market for or value of the copyrighted work"

The purpose of the copyright is to provide incentive for "creative effort." By allowing a format shifting for private, non commerical use would not impair incentive for "creative effort" so long as the first copy was legitimately purchased.

Considering this language in conjunction with the right of resale (the first sale rule), it doesn't seem likely a court would find that format shifting is one that would find favor with the courts.

Frankly, given how sue happy RIAA is, if they thought they had a leg to stand on, companies like this one which promises to convert your existing cd collection into mp3s would be in court right now.

Further, if you read the copyright page of a book, it states that the it is a violation of the copyright to scan, upload and share not just scan.

Finally, I disagree that the DMCA would apply. I think that calliing a paper book an "analog" copy is a distortion of the meaning of analog as it is generally understood.

[NatCh]

Originally Posted by Cthulhu

For the love of Katie Couric, why aren't there any lawyers in this forum?!

Too busy eating their young, perhaps?

[Cthulhu]

@NatCh: cheap shot, my friend. Lawyers are like politicians: they take the abuse for the fact they we give them power in order to have convenience. Not all are bad, and some do good work.

da_jane: I was loathe to use "analog" & "digital," but for the sake of space I used those terms.

I think a stumbling block here is semantics. Another is the fact that none of us are copyright lawyers or judges.

Personal copying seems to be a gray area in the legal definition of "Fair use," yet another area where law has not kept pace with technology. Now, those with a vested interest in one model (i.e. RIAA, publishers) have employed politicians & lawyers to secure their rights and desires. We have not. I haven't. Save ranting to you people. ;-/

[slayda]

Originally Posted by Cthulhu

Lawyers are like politicians:

Have to agree with Nathan as well as this part of your post. BTW my lawyer father was well on his way to becoming a politician before he became a preacher (a political occupation) so I have first hand knowledge -- (luckily I was a fast youngster).

[rmeister0]

Interesting debate, but I think an important point is that the issue in the RIAA lawsuits is really not reproduction but redistribution. Whether or not ripping CDs for your own personal use is legal or not is rather a moot point; if you don't redistribute, who is going to know?

I'm sure down the road an attempt will be made to make format shifting illegal (which it already is if copy protection schemes are involved), but I also see enforcement as being extremely difficult in practice.

[bingle]

Originally Posted by da_jane

I would think the de minimis defense would protect you. What is more harmful, converting the book to eformat or selling it a half.com?

True. But doctrine of first sale explicitly protects selling the physical book, and there is no such explicit protection for format conversion. I agree that if it got into an actual legal battle, you'd have a very good chance of winning. But there are no guarantees, nor even precedent, as far as I'm aware.