Scanning books for personal use

[TKOne]

What is the name of your state (only U.S. law)? CA

I own boxes full of books, including textbooks, that I would like to read on my Kindle. Can I legally scan the physical books into my computer and use them in their electronic form solely for my own personal use (I don't intend to sell or distribute either version)?

 

[quincy]

Scanning for personal use only a copy of a book you have legally purchased and own is still copying and is still an infringement on the copyright holder's exclusive right to reproduce the copyrighted work.

Whether this private scanning of your personal copy of a book is something that could or would be discovered, and whether this private scanning of your personal copy of a book is something that could or would lead to action of some sort being taken against you, is a question mark. I suppose it is unlikely.

 

[wrongsometimes]

What is the name of your state (only U.S. law)? CA

I own boxes full of books, including textbooks, that I would like to read on my Kindle. Can I legally scan the physical books into my computer and use them in their electronic form solely for my own personal use (I don't intend to sell or distribute either version)?

Yes, you can. I cannot see quincy's response but I'm guessing its the opposite opinion. He's free to post it even though I see it as incorrect advice.

 

[quincy]

What wrongsometimes has posted is legally incorrect.

We generally do not advise people to break the law, wrongsometimes. And you have done just that. Way to go.

 

[TKOne]

Scanning books follow-up/points

Quincy and wrongsometimes,

Thanks for both your responses. I've noticed that there's very little agreement among people regarding this issue, so I have some follow-up questions/points.

I own boxes full of books, including textbooks, that I would like to read on my Kindle.

While I understand that merely because something is a book (or even a textbook) doesn't imply this, I should clarify that I would generally be scanning these books in for noncommercial educational research purposes. (I am currently a grad student working on my thesis, so having dozens of books around with various pages highlighted and notated is impractical.) However, not all of these books would be used for this research--particularly some of my college and grad school textbooks that aren't relevant--but I would like to digitize those since they have notes, highlights, and would serve as a good reference for the subject. Thus, some of the books would be for educational research; others, to archive for future use.

Scanning for personal use only a copy of a book you have legally purchased and own is still copying and is still an infringement on the copyright holder's exclusive right to reproduce the copyrighted work.

Maybe I'm interpreting this comment strictly, but I'd like to point out that the copyright holder's right to reproduce his work is not absolute. An obvious exception is fair use, where courts consider the four factors enumerated at 17 U.S.C. § 107, along with other factors the court deems relevant.

Section 117(a) also lists an exception for creating an archival copy of a computer program. It states that it is not infringement for a person to create an archival copy of the program provided that:

(1) ...; or​

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.​

This seems extremely relevant and a good-faith argument could be made that allowing scanned copies of books is a logical extension of this, but this argument does have some flaws:

1. Congress last amended this statute in 1998 and did not extend the language beyond computer programs, even though digital book collections existed at that time. While there could be many reasons for this, the fact that it wasn't changed doesn't help. Personally, I think it's more of an issue of "the law hasn't caught up to technology," but that's a long discussion in itself (e.g., the Digital Millenium Copyright Act didn't come about until the RIAA lobbied hard enough in the wake of Napster);
   
   
2. Some people argue that purchasing a book gives you a license to use the book in its given medium (i.e., hardback, eBook, etc.), so copying it into a different medium is a violation of the license. Personally, I don't find that argument persuasive since I can take a hardback novel into Kinko's, have them cut the covers and bindings off, and effectively turn it into a paperback.
   
   Now, if the argument is that "medium" specifically refers to either physical or digital format, it makes more sense but is still a weak argument. For example, if you purchase a Kindle book from Amazon (*.azw, a proprietary format created by Amazon) but turn it into an ePub file, you haven't changed the "medium" under this interpretation, but it would be hard to argue that you didn't breach Amazon's license agreement.

Another exception exists for libraries creating archival copies (§ 108), although the statute places a lot of restrictions on the library, how the copies should be made available, etc. (I'm not trying to imply in any way that my personal actions would qualify for this library exception, since I know it wouldn't. I'm merely trying to demonstrate that the exclusive right to reproduce is not absolute.)

Whether this private scanning of your personal copy of a book is something that could or would be discovered, and whether this private scanning of your personal copy of a book is something that could or would lead to action of some sort being taken against you, is a question mark. I suppose it is unlikely.

I guess this is the answer I ultimately expected, but I've always been uncomfortable with the American legal tradition of "if you think it's illegal, try it and find out" haha. The US is one of the few complex legal systems that doesn't allow courts to issue advisory opinions, which sometimes seems like bad policy. (Yes, I understand there are economic reasons, already overburdened courts, etc., but there are times it would probably promote--not hinder--judicial economy.)

What wrongsometimes has posted is legally incorrect.

We generally do not advise people to break the law, wrongsometimes. And you have done just that. Way to go.

Both Quincy and wrongsometimes, in what state(s) are you licensed to practice law?

 

[quincy]

It appears you are trying to make a legal argument in support of the scanning of your books, TKOne. You are certainly entitled to make all of the arguments you wish. To add to the ones you mentioned, there could also be a "format-shifting" (or time-shifting) argument and perhaps the use of the merger doctrine to justify scanning. These have been used in the past.

What your success with any argument in court would be, however, is something I cannot tell you. I can tell you that, as the copyright law stands right now, what you are proposing to do violates the rights of the books' copyright holders and is considered infringement.

You may wish to view the Kinko's lawsuit, and the Authors Guild lawsuits filed against Google and HathiTrust, to see additional arguments that have been bandied about (although Google agreed to settle the suit with Authors Guild for $125 million, to compensate authors and publishers for their unauthorized scanning, and Kinko's was unsuccessful with their "fair use" defense to scanning copyrighted material). The 16 "Affirmative Defenses" used by Google in the suit filed against it are certainly interesting ones to ponder - although, like the defense used by Kinko's, they do not appear to have been entirely successful ones for Google.

I see that you have already checked out my profile, TKOne. You apparently did not check out wrongsometimes (do you know him already?). I suggest you visit his profile, compare, and take from these profiles what you will. Posting histories can be informative, as well.


Edit to add: Fair use is not an excuse to use copyrighted material, by the way. It is an affirmative defense used in court. A court ultimately decides if a use is a fair one or not, should one's use of copyrighted material be challenged by the copyright holder.

 

[The Occultist]

wrongsometimes is still here? I must confess that, with the time I've been away, that comes as quite a shock to me...

 

[quincy]

Welcome back, The Occultist! You have been missed!!

And, yes, surprisingly enough, wrongsometimes is still around, spreading his words of dubious wisdom hither, thither and yon.

 

[davidmcbeth3]

Copying CDs

It’s okay to copy music onto an analog cassette, but not for commercial purposes.

-----------------------------------------

I see a similarity between copying music from a CD that you own to a cassette.

Even the crazy RIAA acknowledges this is OK.

So what's the difference between changing the media of a written book? One could read the book into a recording device and then listen to it later as well.

As long as the new format is not shared, I don't see a problem. It is not a copy -- its a transfer to new media...just like a CD to cassette.

I see it as being fine to do, for personal use only & the person owns the book.

 

[davew128]

Copying CDs

It’s okay to copy music onto an analog cassette, but not for commercial purposes.

-----------------------------------------

I see a similarity between copying music from a CD that you own to a cassette.

Even the crazy RIAA acknowledges this is OK.

So what's the difference between changing the media of a written book? One could read the book into a recording device and then listen to it later as well.

As long as the new format is not shared, I don't see a problem. It is not a copy -- its a transfer to new media...just like a CD to cassette.

I see it as being fine to do, for personal use only & the person owns the book.

I tend to agree with you and absent some case law to the contrary would do it as well.

 

[swalsh411]

Wouldn't this fall under fair use, specifically archiving? It is perfectly legal to make a copy of a Bob The Builder DVD (that you own) to give to your kid so he doesn't get peanut butter on the original and ruin it. How is this any different?

 

[quincy]

The difference between books and music and computer programs, davidmcbeth et al, is that the law and case law currently says that one (the book copying, depending on facts) is infringement and the others (with restrictions) are not. This may not seem like a BIG difference, but it is a difference that counts in the courts.

That is why the "book-scanning" suits recently and currently in the courts have been interesting to follow.

I suggest you look over the Authors Guild actions (Authors Guild v HathiTrust, and Authors Guild v Google), and the early Kinko's action (Basic Books v Kinko's), all of which deal with the scanning of books. Read over what defenses have been and are being used. Note also how successful these defenses have been so far.

You may also wish to read the Computer Software Protection Act, for a look at archival copies and what exactly that means in terms of the copyright law. The intention of this Act and others that allow for an archival copy to be made is NOT so that a person can have two copies of a copyrighted work when only having purchased one. If a purchaser of a computer program, for example, makes an archival copy of the program, the purchaser must retain both the original and the archival copy. If he sells or gives away the original, he must include the archival copy as well or destroy the archival copy. There cannot be two owners at any one time of a work that has only been purchased once.

Both TKOne and mcbeth mentioned the RIAA decision. See also the Family Entertainment and Copyright Act, that addresses the copying of copyrighted works.

There are many many other cases that have addressed the copying of copyrighted works, and the copying of books in particular. The decisions made in each case that makes it to court, of course, depend on the specific facts presented. The copying of a work in the public domain is legal (unless the public domain work has been altered and the altered work copyrighted, such as the Ted Turner colorized films), the copying of portions of a copyrighted work for educational purposes can be found a fair use (although the right to copy for educational purposes has limits), and the copying of a book in its entirety can be infringement (see the lawsuits mentioned above).

Whether you scan your own personal copy of a book or not is, of course, your decision to make. As the copyright law stands right now, however, you would (depending on the book in question) be infringing on the right-holder's copyright and you could if caught (and depending on the facts) get sued for infringement.

I advise against the book-scanning (in general, although specifics may change the legality) because I tend to think on a legal forum such as this one it is wise to advise people AGAINST breaking the law, even if the risk of getting caught breaking the law may be slim.

 

[swalsh411]

To my knowledge nobody has been successfully sued (or unsucessfully for that matter) for making scans of books for their personal use. How would a copyright holder even become aware of this? The google issue is apples and oranges..

If anybody knows of a case where this has happened by all means please share. Until then, nobody can say for sure so it's an opinion either way and I happen to agree with wrongusually that it falls under fair use just like making a copy of a DVD or CD.

 

[davidmcbeth3]

wrongsometimes, READ THE LAW (especially the suit against Google) and then, once read, TRY TO UNDERSTAND WHAT IS READ.

Until you show you are competent to do either, you have no business posting on a legal advice site.

And, yes, post all of the cites that show what you are saying is correct. I will be interested in seeing these. I have already posted what shows you're wrong. Once again.

You are the wrong one on this quincy. Why don't you just move on to another thread ... you have made your viewpoint known. Move along now.

 

[quincy]

My "viewpoint" also happens to be the law as it currently stands, davidmcbeth. It is not "opinion either way," swalsh. What it IS is the law versus the opinion that it can't be the law because it is so easy to get away with breaking it.

My feeling is that a decision coming from the court in the Authors Guild/HathiTrust suit could define the legality of book scanning better. The Google action is a bit of a confusion, but the settlement included the licensing of works and compensation for the authors/publishers involved whose works were and will be scanned. Google DID agree to settle the action for $125 million, in part to compensate the authors and publishers for the illegal scanning of their copyrighted works, but a judge has sent the Authors Guild and Google back into settlement talks.

With that said, if you care to show me now any law or case law that shows that book scanning in general is LEGAL under the copyright law, please cite these for me. Using case law that applies only to computer programs or music is not going to do it. The laws that define archival copies as it applies to computer programs and music are pretty clear in their exclusion of books.

And swalsh, I am not sure there IS any case of someone getting "caught" scanning their own personal books and being sued for infringement. I tend to doubt such a case or cases exist. But, as explained earlier, that does not make the scanning any more legal, even if it seems like it should be legal.