8 ms·

The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook ser

The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers. It also discusses that there is a very good reason why digital libraries don't typically get to have perpetual rights to a work at the retail (or used) price for a print book. Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. The ruling points out that publishers originally sold ebooks to libraries at the same pricing as print books, but abandoned the practice because they discovered that it was not financially sustainable. And that's ultimately where the harm comes in. The IA is trying to create a loophole that subverts the income stream of all the people who work on a book by offering derivative works - which are never fair use; fair use is for transformative works - without paying the market's customary price for acquiring rights to create and distribute derivative works. (As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers".)

wbl 2y ago
IANAL but I don't think the work is legally a derivative any more than a JPEG of the Mona Lisa is. In US law those are the same for copyright. MS Word vs PDF shouldn't matter so neither should this.
- mumblemumble 2y ago
  The ruling's section on transformativeness explains the distinction. Note that "derivative works" under US copyright law works differently from how it gets defined in typical open source licenses. My understanding is that, for the purposes of determining fair use, a derivative work is substantially the same thing but in a different format. Transformative work must involve significant additional creative contribution "Changing the medium of a work is a derivative use rather than a transformative one." They cite previous case law that holds repackaging a print book as an e-book as a "paradigmatic example of a derivative work." The law also offers some paradigmatic examples of transformative work, such as criticism, commentary and scholarship. Based on all of that, I would guess that, for the purposes of copyright law, a JPEG of a painting is absolutely a derivative work and not a transformative one.
  - tptacek 2y ago
    Just to be clear: works that are transformative are a subset of derivative works. They're all derivative works.
- bryanrasmussen 2y ago
  The only way an ebook of a novel is not derivative in the same way a JPEG is not derivative of the Mona Lisa is if we are talking about the author's original handwritten version that just came up for auction on edit: actually I also think that a JPEG of the Mona Lisa is derivative, but just noting that the value we ascribe to the Mona Lisa is something like the concept of Mana for art https://medium.com/luminasticity/art-as-a-tool-for-storing-mana-69d90f1a014b https://medium.com/luminasticity/art-as-a-tool-for-storing-m...
asadotzler 2y ago
>The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers. The question was "how is this hurting authors" and your reply is to carry water for publishers?
- bryanrasmussen 2y ago
  as lousy and inefficient a system as the one we mainly have is, as a theoretical rule in this system authors get some share of the money that goes to publishers.
kmeisthax 2y ago
> Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. As someone who understands the ruling and why IA lost completely, I still hate this argument, because it gets the history backwards. When first sale was put into (case)law, ebooks didn't exist. First sale doesn't exist because "oh, well, the book wears out eventually". It exists because you have an ownership interest in that copy of the book and copyright law has to respect your physical ownership of that property. Once you have sold a copy, your rights as a copyright owner are exhausted. With digital distribution, the law decided that, no, there is no rights exhaustion whatsoever. And this is mainly because the technology was made after the law was horrifically unbalanced (or re-balanced) in favor of large publishers. CDL absolutely has no leg to stand on in the courts, but it is the sort of thing that would make sense as the legal basis for a new rights exhaustion regime that was properly legislated in Congress. > As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers". I've talked about the habit of copyright reformists / abolitionists ignoring the "creative working class" in the past. The headline artist on a work is most likely to be able to survive off non-royalty income because they have social capital that the creative working class does not. On the other hand, publishing firms don't give a shit about the creative working class either! A lot of media companies are run by people who think generative AI is going to let them eliminate entire classes of creative labor and replace it with ChatGPT prompts. I'm not entirely sure referencing the opinions of headline artists helps either. In contrast to (but not negating) what you've said, I've heard authors complain endlessly about publishers, too. Things like, oh, we don't want to fund the third book in your trilogy, but we also aren't going to let you trip the rights reversion clause in your contract, so you just can't finish the story. Shit like that. Publishers' valuations are based at least in part on their total IP catalog, so a work they don't want to touch anymore is worth more to them dead than alive.
- hilbert42 2y ago
  "the law decided that, no, there is no rights exhaustion whatsoever" Ultimately, the law will either have to change to be fairer and recognize the buyer's investment or digital copying (piracy) will overwhelm it. It's not if but when (technology almost makes that axiomatic). This will not happen immediately but as US influence in the world declines other fairer paradigms will emerge. As we've seen already, probably about one third of the planet's population pays little heed of copyright law, or it does so in name only—and that number will only increase with time (and as copying tech improves even further). The US and Western countries have a choice, be fairer and less greedy or suffer the consequences.
iggldiggl 2y ago
> Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. While physical books might indeed wear out, I think they wear out way slower than what current library e-book licenses might suggest (apparently two years or 26 lends seems to be popular in the US? – my library has tons of books older than two years, and back from when they used to stamp the return date in the back, quite a few books had hit 26 lends without falling apart yet).
- mezzie2 2y ago
  Also, physical books can be rebound/repaired. The binding is usually the point of failure, and even smaller libraries often have rebinding equipment. I worked in libraries for over a decade and I could probably count on one hand how many books (as opposed to CDs/DVDs/other materials) that were weeded due to condition versus because they simply weren't used or contained out of date/wrong information.

wbl 2y ago

IANAL but I don't think the work is legally a derivative any more than a JPEG of the Mona Lisa is. In US law those are the same for copyright. MS Word vs PDF shouldn't matter so neither should this.

mumblemumble 2y ago
The ruling's section on transformativeness explains the distinction. Note that "derivative works" under US copyright law works differently from how it gets defined in typical open source licenses. My understanding is that, for the purposes of determining fair use, a derivative work is substantially the same thing but in a different format. Transformative work must involve significant additional creative contribution "Changing the medium of a work is a derivative use rather than a transformative one." They cite previous case law that holds repackaging a print book as an e-book as a "paradigmatic example of a derivative work." The law also offers some paradigmatic examples of transformative work, such as criticism, commentary and scholarship. Based on all of that, I would guess that, for the purposes of copyright law, a JPEG of a painting is absolutely a derivative work and not a transformative one.
- tptacek 2y ago
  Just to be clear: works that are transformative are a subset of derivative works. They're all derivative works.
bryanrasmussen 2y ago
The only way an ebook of a novel is not derivative in the same way a JPEG is not derivative of the Mona Lisa is if we are talking about the author's original handwritten version that just came up for auction on edit: actually I also think that a JPEG of the Mona Lisa is derivative, but just noting that the value we ascribe to the Mona Lisa is something like the concept of Mana for art https://medium.com/luminasticity/art-as-a-tool-for-storing-mana-69d90f1a014b https://medium.com/luminasticity/art-as-a-tool-for-storing-m...

asadotzler 2y ago

>The ruling discusses this starting on page 33. The gist is that they set up a non-transformative service that is substantially equivalent to competing ebook services and CDLs, but unlike those it is not paying the customary price to publishers. The question was "how is this hurting authors" and your reply is to carry water for publishers?

bryanrasmussen 2y ago
as lousy and inefficient a system as the one we mainly have is, as a theoretical rule in this system authors get some share of the money that goes to publishers.

kmeisthax 2y ago

> Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. As someone who understands the ruling and why IA lost completely, I still hate this argument, because it gets the history backwards. When first sale was put into (case)law, ebooks didn't exist. First sale doesn't exist because "oh, well, the book wears out eventually". It exists because you have an ownership interest in that copy of the book and copyright law has to respect your physical ownership of that property. Once you have sold a copy, your rights as a copyright owner are exhausted. With digital distribution, the law decided that, no, there is no rights exhaustion whatsoever. And this is mainly because the technology was made after the law was horrifically unbalanced (or re-balanced) in favor of large publishers. CDL absolutely has no leg to stand on in the courts, but it is the sort of thing that would make sense as the legal basis for a new rights exhaustion regime that was properly legislated in Congress. > As an aside, when I see authors speaking for themselves on these sorts of issues they will typically point out that editors and typesetters and cover artists and all the other folks who work on a book also deserve to get paid. It seems to only be people who are tokenizing authors for rhetorical purposes who want fixate on authors specifically and erase the value-adding contributions of "the publishers". I've talked about the habit of copyright reformists / abolitionists ignoring the "creative working class" in the past. The headline artist on a work is most likely to be able to survive off non-royalty income because they have social capital that the creative working class does not. On the other hand, publishing firms don't give a shit about the creative working class either! A lot of media companies are run by people who think generative AI is going to let them eliminate entire classes of creative labor and replace it with ChatGPT prompts. I'm not entirely sure referencing the opinions of headline artists helps either. In contrast to (but not negating) what you've said, I've heard authors complain endlessly about publishers, too. Things like, oh, we don't want to fund the third book in your trilogy, but we also aren't going to let you trip the rights reversion clause in your contract, so you just can't finish the story. Shit like that. Publishers' valuations are based at least in part on their total IP catalog, so a work they don't want to touch anymore is worth more to them dead than alive.

hilbert42 2y ago
"the law decided that, no, there is no rights exhaustion whatsoever" Ultimately, the law will either have to change to be fairer and recognize the buyer's investment or digital copying (piracy) will overwhelm it. It's not if but when (technology almost makes that axiomatic). This will not happen immediately but as US influence in the world declines other fairer paradigms will emerge. As we've seen already, probably about one third of the planet's population pays little heed of copyright law, or it does so in name only—and that number will only increase with time (and as copying tech improves even further). The US and Western countries have a choice, be fairer and less greedy or suffer the consequences.

iggldiggl 2y ago

> Basically, physical books wear out with use, ebooks don't, so there's a built-in mechanism for revenue recurrence that happens with print books but not ebooks. While physical books might indeed wear out, I think they wear out way slower than what current library e-book licenses might suggest (apparently two years or 26 lends seems to be popular in the US? – my library has tons of books older than two years, and back from when they used to stamp the return date in the back, quite a few books had hit 26 lends without falling apart yet).

mezzie2 2y ago
Also, physical books can be rebound/repaired. The binding is usually the point of failure, and even smaller libraries often have rebinding equipment. I worked in libraries for over a decade and I could probably count on one hand how many books (as opposed to CDs/DVDs/other materials) that were weeded due to condition versus because they simply weren't used or contained out of date/wrong information.