Is book scanning now (2018) legal?

[reedr]

I'm wondering if the legal status of book scanning by individuals has changed as a result of the 2015 ruling that Google's library project is legal. If Google can scan books for libraries, can individuals now scan their own books for personal use? Many obscure, out-of-print but not necessarily out-of-copyright books are not available as ebooks, and even after the Google project is complete, many obscure titles will not be available as ebooks. The mustiness of old books can be a significant problem for asthmatics, so I hope that individuals can now scan their own books.

Related questions:

Is scanning a book "transformative," since it can be searched electronically and print books can't?
If the owner of the print book destroys the print book after scanning, does that constitute fair use?

Thanks for your help!

 

[quincy]

I'm wondering if the legal status of book scanning by individuals has changed as a result of the 2015 ruling that Google's library project is legal. If Google can scan books for libraries, can individuals now scan their own books for personal use? Many obscure, out-of-print but not necessarily out-of-copyright books are not available as ebooks, and even after the Google project is complete, many obscure titles will not be available as ebooks. The mustiness of old books can be a significant problem for asthmatics, so I hope that individuals can now scan their own books.

Related questions:

Is scanning a book "transformative," since it can be searched electronically and print books can't?
If the owner of the print book destroys the print book after scanning, does that constitute fair use?

Thanks for your help!

reedr, you originally added your post to a thread from the FreeAdvice archives. The archived thread provides a decent background for your questions, so here is a link to that thread: https://forum.freeadvice.com/copyrights-trademarks-39/scanning-books-personal-use-574192.html

The legality of scanning books for personal use has not changed all that much since 2012. The advice I offered then has not changed with the 2nd Circuit decision in Author's Guild v. Google. I can explain why.

The copying of copyrighted works, without authorization from the copyright holders, is not now nor has it ever been legal, with limited "fair use" exceptions. Reproducing (copying) copyrighted works is an exclusive right granted copyright holders. However, with the 2nd Circuit decision in Author's Guild, the limited exceptions permitted under the Copyright Act's fair use doctrine were expanded.

With the 2nd Circuit decision, fair use was expanded to include the full-text digital scanning of books by technology companies (search engines) when the digital scans are used to preserve existing works and to provide electronic access to books for the disabled who cannot read print versions. The Court called Google's copying of whole books to create a searchable database a "transformative" fair use (a new way to use original works).

Works can be deemed transformative if new expression or meaning has been added to the original works. There has been more than a little debate over the Court's claim that Google's copying of books was transformative (the Court calling the copying of the books a "repurposing") - but the US Supreme Court declined to hear the Author's Guild suit - so it is what it is.

 

[LdiJ]

reedr, you originally added your post to a thread from the FreeAdvice archives. The archived thread provides a decent background for your questions, so here is a link to that thread: https://forum.freeadvice.com/copyrights-trademarks-39/scanning-books-personal-use-574192.html

The legality of scanning books for personal use has not changed all that much since 2012. The advice I offered then has not changed with the 2nd Circuit decision in Author's Guild v. Google. I can explain why.

The copying of copyrighted works, without authorization from the copyright holders, is not now nor has it ever been legal, with limited "fair use" exceptions. Reproducing (copying) copyrighted works is an exclusive right granted copyright holders. However, with the 2nd Circuit decision in Author's Guild, the limited exceptions permitted under the Copyright Act's fair use doctrine were expanded.

With the 2nd Circuit decision, fair use was expanded to include the digital scanning of books by technology companies for a full-text search engine when the digital scans were used to preserve existing works and to provide electronic access to books for the disabled who cannot read print versions. The Court called Google's copying of whole books to create a searchable database a "transformative" fair use (a new way to use original works).

Works can be deemed transformative if new expression or meaning has been added to the original works. There has been more than a little debate over the Court's claim that Google's copying of books was transformative (the Court calling the copying of the books a "repurposing") - but the US Supreme Court declined to hear the Author's Guild suit - so it is what it is.

I do not see how the Author's Guild vs Google applies when its someone scanning the book for purely personal use. I read through that case and it really doesn't apply. Its dealing with scanning books on an entirely different level.

The following blog has a very thorough discussion of the subject from a legal perspective and it indicates that the matter is much more a grey issue than has been indicated on this thread.

The bottom line of the discussion appears to be an issue of how is the author or the publisher financially harmed by a consumer scanning a copy of the book for their own personal use, assuming that they keep the original paper copy in their possession and do not give it away to someone else?

 

[quincy]

Here is a link to the US Copyright Office's summary of the Second Circuit decision: https://www.copyright.gov/fair-use/summaries/authorsguild-google-2dcir2015.pdf

And here are links to additional information for your reading enjoyment:

From MIT Libraries on using copyrighted content: https://libraries.mit.edu/scholarly/publishing/using-copyrighted-content/

From the Association of Research Libraries, a fair use "infographic:" http://fairuseweek.org/wp-content/uploads/2016/02/ARL-FUW-Infographic-r5.pdf

From Stanford on library photocopying: https://fairuse.stanford.edu/overview/academic-and-educational-permissions/library-photocopying/

Author's Guild (click on Author's Guild v. Google): https://authorsguild.org/

 

[quincy]

I do not see how the Author's Guild vs Google applies when its someone scanning the book for purely personal use. I read through that case and it really doesn't apply. Its dealing with scanning books on an entirely different level.

The Second Circuit decision was not concerned with the scanning of books for personal use so that is why what was offered in the way of advice in 2012 has not changed with the decision.

The following blog (?) has a very thorough discussion of the subject from a legal perspective and it indicates that the matter is much more a grey issue than has been indicated on this thread.

The bottom line of the discussion appears to be an issue of how is the author or the publisher financially harmed by a consumer scanning a copy of the book for their own personal use, assuming that they keep the original paper copy in their possession and do not give it away to someone else?

Fair use is ultimately determined by a court, this if a copyright holder sues an unauthorized user. There is more than financial harm that is considered. Financial harm is only one factor out of several that will be analyzed by a court in a copyright infringement suit.

 

[LdiJ]

The Second Circuit decision was not concerned with the scanning of books for personal use so that is why what was offered in the way of advice in 2012 has not changed with the decision.



Fair use is ultimately determined by a court, this if a copyright holder sues an unauthorized user. There is more than financial harm that is considered. Financial harm is only one factor out of several that will be analyzed by a court in a copyright infringement suit.

Quincy, even your own sources are not really on your side in this matter. In the fair use sections of everything I have looked at, including your own sources it is clear that the law on this matter is a very grey issue. However basically everyone agrees that there is little chance of a publisher or author prevailing in a suit where someone purchased the book and merely scanned it for their own individual use.

There is also the issue of WHY a publisher or author would have any interest at all in going after an individual who did so. It would be an expensive endeavor for them to take with little chance of prevailing and even less chance of collecting if they did prevail...and in the end all it would do would be to dismay loyal fans.

 

[quincy]

Quincy, even your own sources are not really on your side in this matter. In the fair use sections of everything I have looked at, including your own sources it is clear that the law on this matter is a very grey issue. However basically everyone agreesthat there is little chance of a publisher or author prevailing in a suit where someone purchased the book and merely scanned it for their own individual use.

There is also the issue of WHY a publisher or author would have any interest at all in going after an individual who did so. It would be an expensive endeavor for them to take with little chance of prevailing and even less chance of collecting if they did prevail...and in the end all it would do would be to dismay loyal fans.

What do you see as "my side" exactly? Where exactly do you see disagreement between what I have said and what has been said in the sources I cited?

If something is illegal but you are not caught, do you somehow think that makes the illegal legal?

Please read carefully what I have said in my posts and do not put words in my mouth that I have not said. Please read carefully what is said about fair use in the sources I linked.

Fair use is an affirmative defense to a copyright infringement claim. It is not permission to use copyrighted material. So, yes, fair use is "grey" in that every case must be evaluated individually based on the facts.

As additional notes: Saying "basically everyone agrees" is a really stupid thing to say. And copyright holders can be eligible to collect statutory damages.

 

[reedr]

Thank you for your responses Quincy and LdiJ.

Quincy your links were helpful.
Ldij I don't see the link you are referring to in your post.

Do either of you know if there is anything in the works in Congress or the courts to resolve this grey area? From a commonsense perspective, it seems ridiculous that people can't digitize books they have already purchased when an ebook is not available.

 

[quincy]

Thank you for your responses Quincy and LdiJ.

Quincy your links were helpful.
Ldij I don't see the link you are referring to in your post.

Do either of you know if there is anything in the works in Congress or the courts to resolve this grey area? From a commonsense perspective, it seems ridiculous that people can't digitize books they have already purchased when an ebook is not available.

I have not seen any legislative proposals related to book scanning for personal use or expanding fair use for personal uses. I suppose it is possible that something has been introduced that I missed.

There was a bill introduced in the House in 2017 (HR 3945) that would amend the Copyright Act by establishing a small claims copyright dispute resolution program ... which I find interesting (not that it is likely to go anywhere).

You might want to reread the information in the links I provided and then you must decide on your own whether to copy a book in its entirety for your own personal use. I have provided you with the law as it currently stands but the risks are yours to balance.

 

[LdiJ]

What do you see as "my side" exactly? Where exactly do you see disagreement between what I have said and what has been said in the sources I cited?

In the original thread you were pretty adamant that scanning a book for personal use was not "fair use". You seemed to be following that same theme in this thread. You certainly did not seem to allow for any grey area.

If something is illegal but you are not caught, do you somehow think that makes the illegal legal?

See? That backs up my previous statement that you view it as a violation and do not see any possibility that it is fair use

Please read carefully what I have said in my posts and do not put words in my mouth that I have not said. Please read carefully what is said about fair use in the sources I linked.

I DID read them thoroughly.

Fair use is an affirmative defense to a copyright infringement claim. It is not permission to use copyrighted material. So, yes, fair use is "grey" in that every case must be evaluated individually based on the facts.

Fair use is not always grey. In some circumstances it is well established practice. It is grey on the issue of scanning books for personal use.

As additional notes: Saying "basically everyone agrees" is a really stupid thing to say. And copyright holders can be eligible to collect statutory damages.

That made me laugh...because it was such a childish thing for you to say that. You are not normally childish.

 

[quincy]

In the original thread you were pretty adamant that scanning a book for personal use was not "fair use". You seemed to be following that same theme in this thread. You certainly did not seem to allow for any grey area.

See? That backs up my previous statement that you view it as a violation and do not see any possibility that it is fair use

I DID read them thoroughly.

Fair use is not always grey. In some circumstances it is well established practice. It is grey on the issue of scanning books for personal use.

That made me laugh...because it was such a childish thing for you to say that. You are not normally childish.

You DO realize , don't you, that fair use is a DEFENSE to infringement? It is saying that there WAS infringement but the infringement is excusable.

The scanning of a book for personal use infringes on the rights of the copyright holder. There might be a defense available for this infringement but it is still infringement.

IF a copyright holder were to discover the copying of their book (and I have said more than once that this might be unlikely), they could sue for infringement. The copyright holder has the EXCLUSIVE right to reproduce their book.

IF a suit arose, a court would analyze four major factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole of the copyrighted work, the effect of the use on the potential market for, or value of, the copyrighted work.

Fair use is decided on a case by case basis. Here is a link to recent "fair use" case summaries and you can search out the cases online to educate yourself on fair use as a defense to infringement: https://www.copyright.gov/fair-use/fair-index.html

If "everyone agrees," there would probably be no need to have a fair use defense. Your comment remains one of the more stupid ones I have ever read on this forum.

 

[Just Blue]

Is it too early for popcorn to watch this show?

 

[quincy]

Is it too early for popcorn to watch this show?

This is like trying to explain the law to "wrongsometimes" all over again.

 

[Just Blue]

This is like trying to explain the law to "wrongsometimes" all over again.

WRONG!! Everyone knows the correct answer is : It's never too early for popcorn!!

 

[quincy]

WRONG!! Everyone knows the correct answer is : It's never too early for popcorn!!

Hahaha. You're right. Time for popcorn!