21 November 2010

I am Google ... sort of (continued)

An interesting response to yesterday's "I am Google ... sort of" comes in a comment from AcerOne which has had me thinking further about the implications of copying a text for my own use. He compares my scanning of a printed text into digital form to [illegal] downloading from a file sharing site of music already purchased on physical media. I'm not sure that this is a true analogy in every way, although I do agree that the immediate (not extended) moral issue is the same.

I've just spent a while discussing this with a lawyer. Not professionally, I hasten to add: just chewing the fat with a friend who happens to be a lawyer (and not one with any specific experience of copyright law), as a way of trying out thoughts.

To some extent, what I say now in response to AcerOne is playing devil's advocate. Other parts I think I probably believe. I won't try to sort out the two at this point; I'm just having an exploratory dialogue with myself, using his words as a sounding board. In no way am I implying any judgment of AcerOne, for whom (and for whose moral sense) I have the greatest respect. What you are reading here is an internal monologue on my own outlook.

AcerOne: What difference does it make to anyone, the author included, if you also own a copy of the text in a digital format?

Well ... in practice, I think that depends upon circumstances. In the case of Appleton (the text I am currently digitising), perhaps none. If the text stays out of print, then my digitisation cannot cause any loss to Jay Appleton or his estate. Even if the text is reprinted, that remains true as long as I keep my digitised copy entirely for my own use. If, on the other hand, the text is later digitised and offered for sale in that form, I have arguably deprived the author or his estate of income from the digital copy which I might have purchased.

This becomes more acute, though not different in principle, if I digitise Spirin who is still very much in print but not available in electronic form. It becomes a very live issue if I digitise a book which is available as a purchasable electronic copy.

An analogy might be this. AcerOne is, amongst other things, a visual artist who currently has on show an exhibition of his paintings. He offers for sale both those paintings and prints of them. If I go to his show, photograph them, then make prints of the resulting photographs to hang on my wall, I very definitely feel that I have behaved shabbily. I should have bought his own prints – I have deprived him of the income which he would thus have made. If I take the same photographs and use them as illustrations in a lecture, on the other hand, I feel comfortable with that provided that I give details of source: I have not replaced his work, and may through publicising it contribute indirectly to his sales income. Whether it is legal or not is a different matter; I think it comes safely within "fair use", and my friendly lawyer (without wanting to be pinned down or quoted, of course) agrees.

AcerOne goes on...

...i have on occasions used file-sharing websites to find music (both moral and copyright issues definitely breached). But [... ... ...] to download music i have already purchased and legitimately own; but on vinyl. [... ... ...] The thought of transferring it to my computer so that it can be played through my home system or on my iPod seems like a long and laborious task [...]So i have on occasions sourced and downloaded a digital version from file-sharing websites... Legally i have broken the law. But all i have done is chosen to take a simpler and far easier route to gaining the same outcome - a digital version of music i already own.

There are several issues which occur to me here. The first is a technical one: the true analogy for my digitisation of a print text is, I think, not downloading a new copy[1] but the transfer from vinyl to computer file. And that prompts me to consider the fact that I routinely buy a CD which I then do not play: I immediately "rip" it to digital form and play it from an MP3 player because most of my musical listening is done on the move. I have done the same with such vinyl or tape as I cannot replace with CD. So, I realise, my concern of digitisation of a book is somewhat hypocritical when I have done the same with in excess of two thousand albums. (Ripping is, of course, so endemic and so universally enabled by mainstream software providers as to be an unstoppable fait accompli . That's not, on the other hand, the same thing as being morally right. Nevertheless, I personally feel morally comfortable with both my and AcerOne's digital duplication of our music sources. There are other philosophically problematic issues around use of a file sharing site ... but I'll not go there as I've already bitten off more that I can chew with this topic.)

The second issue is also technical, but in an important legal sense. AcerOne does not, in fact, own the music on his vinyl; nor I the music on my CDs. We own only the physical media upon which it is recorded, and have a licence to play the music (only for our own enjoyment at that; playing it for other people is, strictly speaking, breach of the licence). Similarly, when I buy a copy of Appleton's book I do not buy the content: only the physical paper and board construct within which my single copy is encoded. Calling again on the analogy of AcerOne's paintings: if I purchase one of his prints, I do not thereby own the image itself and have no right to reproduce it – the image remains the property of AcerOne.

On the other hand ... the legal copyright breach seems to lie not in reproduction but in "publishing". Going back to the technical breach of license when I play my CD to others (previous para), the issue is that legally I thereby "publish" the work to others. Software licences work on much the same basis, but make allowance for back up; my word processor, for instance, comes with a specific proviso that it can be copied for security back up purposes, and can be installed on more than one computer provided that it is only ever in use on one of them at the same time. By analogy, it would seem that photocopying[2] or digitising a book stays within the fence so long as nobody else then sees the copy. But then again ... flipping open the nearest book to hand at this moment, I find inside the following unambiguous words: “no part of this publication may be reproduced or transmitted by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher" ... which seems pretty unambiguous.

I could go on ... but enough, already. My feeling remains that I am staying within "fair use" so far, but it's not a subject which I can afford to regard as cut and dried. For my own peace of mind it needs revisiting at intervals, and in particular every time I consider digitising a new text.

1. In my impecunious teens and student years, I regularly did deals with friends whereby one of us bought a vinyl album and the others made a tape cassette copy. Later, when my wife and I divorced amicably in our thirties, we solved the music problem by copying everything to tape cassette so that we each kept the whole collection. Both of these, it seems to me, are the true equivalents of file sharing. I wouldn't do it now, but it would be hypocritical of me to righteously condemn young people now who do it in the new ways which new technology makes available to them.

2. I do, in fact, have some photocopied texts. They were made in the days before digitisation. They were not made by me, but by the owners of print copies, as helpful gestures when I couldn't obtain a physical print copy of something to which I needed long term access. Who actually made them, however, is irrelevant here; my acceptance and retention of them is another blurring hypocrisy in the debate which I am having with myself over selfdigitisation.

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