Is the legal grey area of textbook digitization more of a legal deathwish?
December 29, 2009 2:22 PM Subscribe
I'm starting up a textbook digitization business on campus which converts physical textbooks into PDFs: Is the legal grey area that this falls into more of a legal deathwish?
After a few weeks researching this idea and drafting up a business plan, my legal concerns are keeping me from getting too invested in this idea. What I'm proposing to do is to start a textbook digitization business in which students can convert their textbooks into PDFs. As a current undergraduate, I feel like I'm in a position to identify new customers rather easily and provide a service for which other students have demonstrated a need.
Here's a simplified model:
-Scan in a textbook used by a certain class using a Fujitsu ScanSnap (requires some initial investment into the destruction of a textbook)
-Find several students to purchase the PDF copy of the textbook, each one personalized for each student and offered up on a CD.
Not sure if I'm making a mountain out of a molehill here, but the copyright notice inside of most textbooks makes it explicitly clear that "derived works" constitute copyright infringement. I know that publishers would look the other way if an individual were scanning a textbook this way, but I'm not sure why it should change if a business is offering this service.
A few of my safeguards against litigation:
1. Inserting metadata into the PDFs to personally identify the customer (To discourage circulation on P2P networks of the file)
2. Including a Terms of Use .txt file on the CD which stores the PDF
3. Recording some information about each physical textbook in order to prevent two people from trying to convert the same textbook
Just looking for input / legal advice.
After a few weeks researching this idea and drafting up a business plan, my legal concerns are keeping me from getting too invested in this idea. What I'm proposing to do is to start a textbook digitization business in which students can convert their textbooks into PDFs. As a current undergraduate, I feel like I'm in a position to identify new customers rather easily and provide a service for which other students have demonstrated a need.
Here's a simplified model:
-Scan in a textbook used by a certain class using a Fujitsu ScanSnap (requires some initial investment into the destruction of a textbook)
-Find several students to purchase the PDF copy of the textbook, each one personalized for each student and offered up on a CD.
Not sure if I'm making a mountain out of a molehill here, but the copyright notice inside of most textbooks makes it explicitly clear that "derived works" constitute copyright infringement. I know that publishers would look the other way if an individual were scanning a textbook this way, but I'm not sure why it should change if a business is offering this service.
A few of my safeguards against litigation:
1. Inserting metadata into the PDFs to personally identify the customer (To discourage circulation on P2P networks of the file)
2. Including a Terms of Use .txt file on the CD which stores the PDF
3. Recording some information about each physical textbook in order to prevent two people from trying to convert the same textbook
Just looking for input / legal advice.
If you are selling anything, will you be collecting sales tax? Will you report your earnings to the IRS? Do you have a retail vendor license?
I work for a textbook publisher and I can tell you that not only will they frown upon this, there are people employed to prevent the existence of a "business model" like you have just outlined. Yes, without a contract specifically permitting this use, it's illegal.
posted by mattbucher at 2:31 PM on December 29, 2009
I work for a textbook publisher and I can tell you that not only will they frown upon this, there are people employed to prevent the existence of a "business model" like you have just outlined. Yes, without a contract specifically permitting this use, it's illegal.
posted by mattbucher at 2:31 PM on December 29, 2009
For legal advice you should talk to a lawyer.
For input ... I think this is a terrible idea without entering into an agreement with the publishers to sell digital copies of their books.
If I understand you correctly, you plan to basically buy one copy of the book and make multiple copies to sell to other people. This would be blatant copyright infringement if you used a copy machine. Why would you think scanning the book into a pdf would be any different?
If you were converting students' legally owned book into a pdf just for them, you would have an argument that this was legal. But if you really are just planning on making a bunch of pdf copies of one book you bought, and selling unauthorized copies to students, you're just asking for trouble.
posted by Arbac at 2:33 PM on December 29, 2009
For input ... I think this is a terrible idea without entering into an agreement with the publishers to sell digital copies of their books.
If I understand you correctly, you plan to basically buy one copy of the book and make multiple copies to sell to other people. This would be blatant copyright infringement if you used a copy machine. Why would you think scanning the book into a pdf would be any different?
If you were converting students' legally owned book into a pdf just for them, you would have an argument that this was legal. But if you really are just planning on making a bunch of pdf copies of one book you bought, and selling unauthorized copies to students, you're just asking for trouble.
posted by Arbac at 2:33 PM on December 29, 2009
IANAL, but, whoa, extremely iffy.
Unless, that is, the student already owns a copy of the textbook in question (still iffy, but less so)—but then what's the point?
Also, textbooks are BIG business. Publishers aren't going to give up all that easy gouging without a fight.
posted by Sys Rq at 2:34 PM on December 29, 2009
Unless, that is, the student already owns a copy of the textbook in question (still iffy, but less so)—but then what's the point?
Also, textbooks are BIG business. Publishers aren't going to give up all that easy gouging without a fight.
posted by Sys Rq at 2:34 PM on December 29, 2009
Response by poster: Understood. Like I said, I was keeping myself from getting too invested in this idea because of these obvious legal ramifications, but a part of me wanted to believe that if it were legal for individuals to digitize textbooks, it would be legal for a business to do so.
posted by gacxllr9 at 2:35 PM on December 29, 2009
posted by gacxllr9 at 2:35 PM on December 29, 2009
Not sure if I'm making a mountain out of a molehill here, but the copyright notice inside of most textbooks makes it explicitly clear that "derived works" constitute copyright infringement. I know that publishers would look the other way if an individual were scanning a textbook this way, but I'm not sure why it should change if a business is offering this service.
Really? OK, I'll bite. Why should "it" change? Well if "it" refers to publishers longer looking the other way, the answer is pretty obvious -- in the first instance you're not competing with them, in the second instance you are. If "it" refers to whether the derived work constitutes copyright infringement ...well, it doesn't change. It still does.
posted by pete_22 at 2:35 PM on December 29, 2009 [1 favorite]
Really? OK, I'll bite. Why should "it" change? Well if "it" refers to publishers longer looking the other way, the answer is pretty obvious -- in the first instance you're not competing with them, in the second instance you are. If "it" refers to whether the derived work constitutes copyright infringement ...well, it doesn't change. It still does.
posted by pete_22 at 2:35 PM on December 29, 2009 [1 favorite]
Not sure if I'm making a mountain out of a molehill here, but the copyright notice inside of most textbooks makes it explicitly clear that "derived works" constitute copyright infringement. I know that publishers would look the other way if an individual were scanning a textbook this way, but I'm not sure why it should change if a business is offering this service.
My university already offers a similar service to its students, and we regularly receive access to chapters/parts of digitized textbooks that we need for our course. The pdfs are full of copyright notices, and though tutors have intimated to us that they would love to use this model more, only certain publishers will agree to license their material in this way. I can't speak of the legal problems you'll face trying to do this, but if a large institution can only manage to do it slowly and with difficulty, I think you may not be able to do it all.
posted by Sova at 2:37 PM on December 29, 2009 [2 favorites]
My university already offers a similar service to its students, and we regularly receive access to chapters/parts of digitized textbooks that we need for our course. The pdfs are full of copyright notices, and though tutors have intimated to us that they would love to use this model more, only certain publishers will agree to license their material in this way. I can't speak of the legal problems you'll face trying to do this, but if a large institution can only manage to do it slowly and with difficulty, I think you may not be able to do it all.
posted by Sova at 2:37 PM on December 29, 2009 [2 favorites]
Response by poster: @Sys Rq: I was interested in selling the digital copies only to those students who could provide a physical copy of the textbook. Even with this stipulation in place, though, I'm pretty sure it's still considered copyright infringement. The benefit would be that the textbook could be stored on a laptop rather than in weighing down a backpack.
I should also note that I was only 5% unsure of the legality of this scheme.
posted by gacxllr9 at 2:40 PM on December 29, 2009
I should also note that I was only 5% unsure of the legality of this scheme.
posted by gacxllr9 at 2:40 PM on December 29, 2009
IANAL.
Aren't you essentially republishing these books in a different medium, one for which you have no secured rights or permissions?
posted by mosk at 2:41 PM on December 29, 2009 [5 favorites]
Aren't you essentially republishing these books in a different medium, one for which you have no secured rights or permissions?
posted by mosk at 2:41 PM on December 29, 2009 [5 favorites]
Not a good idea. Even should you ultimately prevail on the basis of your sound legal reasoning (and you won't), you will spend a decade and millions of dollars to do so, neither of which you are likely to get back. The only way I would touch this one is if I provided a service where a student brought in a physical textbook, I scanned it individually for that student, deleted any copies, and subsequently destroyed the book itself. This would obviously be rather labor intensive and silly, but is at least more akin to "format shifting," a topic which you should research. Even then, your right to do this is far from a given. (not a lawyer, this is not legal advice)
Besides, are you certain there is a huge market for this service? Many students don't move their textbooks around a lot (depending on how the course uses the book and where they like to study) and I can't see students paying a whole lot for this service.
posted by zachlipton at 2:42 PM on December 29, 2009
Besides, are you certain there is a huge market for this service? Many students don't move their textbooks around a lot (depending on how the course uses the book and where they like to study) and I can't see students paying a whole lot for this service.
posted by zachlipton at 2:42 PM on December 29, 2009
You should also research the demise of MP3.com, which did a similar service with music, providing digital copies to those who "proved" they owned the CD by inserting it into their computer. They are very, very, very much non-existent today due to copyright issues.
posted by zachlipton at 2:43 PM on December 29, 2009
posted by zachlipton at 2:43 PM on December 29, 2009
I'm pretty sure the publishers don't even like this idea if you did it just for you with your own text books.
"He shouldn't be able to make pdfs of the books he legally owns, he should buy pdfs from us, at an additional charge. What's that? We don't sell pdfs of our books? Well then, he doesn't need a pdf copy of his book."
Doesn't that sound more like what you hear all the time?
posted by toekneebullard at 2:46 PM on December 29, 2009
"He shouldn't be able to make pdfs of the books he legally owns, he should buy pdfs from us, at an additional charge. What's that? We don't sell pdfs of our books? Well then, he doesn't need a pdf copy of his book."
Doesn't that sound more like what you hear all the time?
posted by toekneebullard at 2:46 PM on December 29, 2009
Best answer: I was interested in selling the digital copies only to those students who could provide a physical copy of the textbook.
This is what makes it interesting, and from a copyright law standpoint it's not uninteresting. Consider two different business models: In one, you send all your CDs in to the company, which rips them to whatever format you want and sends you back the CDs and a hard drive containing the digital copies (MP3s, FLAC, whatever) tagged, with album art etc. That business is entirely legal -- or at least it hasn't been challenged and probably never will be. In another, you provide proof that you own a physical CD and the business then permits you to stream the music on the CD from its pre-existing library of ripped music to whatever device you want. That business (which was called mp3.com) was challenged and (at least in part) shut down by the RIAA. From the end user's standpoint the two businesses look the same -- business gives digital access to files based upon ownership of physical media. But they aren't the same, for a host of reasons having to do with how courts read the copyright law.
If you intend to buy one copy of the text book, scan it, and offer the scans to everyone who comes in with a physical copy, you're providing a service similar to that offered by mp3.com and the publishers will come after you hammer and tongs. They'll be right, too, because everyone in his right mind will buy the book, show it to you, get the PDF, and then return it. Unless you intend to physically cut apart each copy of the book that is brought to you and scan it, relying for protection on the ever-weakening first sale doctrine, you do not want to be in this business. IAAL. IANYL. This is not legal advice.
posted by The Bellman at 2:50 PM on December 29, 2009
This is what makes it interesting, and from a copyright law standpoint it's not uninteresting. Consider two different business models: In one, you send all your CDs in to the company, which rips them to whatever format you want and sends you back the CDs and a hard drive containing the digital copies (MP3s, FLAC, whatever) tagged, with album art etc. That business is entirely legal -- or at least it hasn't been challenged and probably never will be. In another, you provide proof that you own a physical CD and the business then permits you to stream the music on the CD from its pre-existing library of ripped music to whatever device you want. That business (which was called mp3.com) was challenged and (at least in part) shut down by the RIAA. From the end user's standpoint the two businesses look the same -- business gives digital access to files based upon ownership of physical media. But they aren't the same, for a host of reasons having to do with how courts read the copyright law.
If you intend to buy one copy of the text book, scan it, and offer the scans to everyone who comes in with a physical copy, you're providing a service similar to that offered by mp3.com and the publishers will come after you hammer and tongs. They'll be right, too, because everyone in his right mind will buy the book, show it to you, get the PDF, and then return it. Unless you intend to physically cut apart each copy of the book that is brought to you and scan it, relying for protection on the ever-weakening first sale doctrine, you do not want to be in this business. IAAL. IANYL. This is not legal advice.
posted by The Bellman at 2:50 PM on December 29, 2009
I'm going with legal deathwish. I think you've probably gotten the idea from other posters already, but this ain't gonna fly. As Sova was mentioning, there is a reason universities don't provide this services for their students. Academic libraries often have "e-reserves" which provides students access to excerpts of books for their course readings, and they have to be very, very, careful about providing PDF access to even just excerpts of a book the library already owns. Some have been taken to court for providing electronic copies of articles/chapters/excerpts of books they didn't buy specific permission to share in such a way, and didn't jump through other hoops the publishers wanted them too. Obviously, what these schools were doing isn't an exact parallel to you business model, but it gives you an idea about copyright laws and how serious publishers are about them. See also the U.S. Copyright Office on Fair Use.
I think it comes down the fact that you don't have the right to copy and sell (especially sell) copyrighted material - even if the people you are selling it to "own" it.
posted by radiomayonnaise at 3:29 PM on December 29, 2009 [1 favorite]
I think it comes down the fact that you don't have the right to copy and sell (especially sell) copyrighted material - even if the people you are selling it to "own" it.
posted by radiomayonnaise at 3:29 PM on December 29, 2009 [1 favorite]
Yes, I came in to tell you about mp3.com, but The Bellman beat me to it. This is not a good business model.
Sure, you might be able to run it for a little while with no hassle, but if you get big enough to make any money, you will attract lawsuits and lose a great deal more money when the judgements go against you.
posted by chrisamiller at 3:43 PM on December 29, 2009
Sure, you might be able to run it for a little while with no hassle, but if you get big enough to make any money, you will attract lawsuits and lose a great deal more money when the judgements go against you.
posted by chrisamiller at 3:43 PM on December 29, 2009
Never mind the legal aspects. You're offering a scanning service, that's all. It entails no skill or signficant investment. Your local copy shop offers it except for not scanning copright materials without license. So you're willing to do the illegal work. It's like a drug dealer working outside a pharmacy, except your drug can be had for free a hundred other places. And you want to get paid for it.
Don't go into business yet. You aren't ready. Work for a few well run businesses and learn.
posted by fourcheesemac at 4:29 PM on December 29, 2009 [5 favorites]
Don't go into business yet. You aren't ready. Work for a few well run businesses and learn.
posted by fourcheesemac at 4:29 PM on December 29, 2009 [5 favorites]
Also, virtually all textbooks will be available in only electronic form within five years. Something like the kindle will become a standardized platform. So your idea is obsolete.
posted by fourcheesemac at 4:32 PM on December 29, 2009 [1 favorite]
posted by fourcheesemac at 4:32 PM on December 29, 2009 [1 favorite]
IANAL, but I am someone who worked in the textbook industry at the time of the Kinko's lawsuit. They got slapped with $1.9 million for photocopying books for students who said they owned them.
Do you want to be in that position?
posted by Sidhedevil at 5:16 PM on December 29, 2009
Do you want to be in that position?
posted by Sidhedevil at 5:16 PM on December 29, 2009
You are not the first person to think of this.
You will note that there are no prominent similar services, even though PDF and scanners are not new technology.
There is a reason for this.
It's legal suicide.
I used to work for a publisher (editorial, not legal), and I will spare everyone the vaguely-remembered details except to say, once again: you're not the first person to think of this. The ones who came before you learned some very very expensive lessons. Are you prepared to lose thousands upon thousands of dollars? Our lawyers were perfectly willing to pursue every possible avenue of punishment, including getting you hauled in front of any disciplinary council we could track down.
It's not the grey area you seem to think it is.
posted by aramaic at 5:19 PM on December 29, 2009 [2 favorites]
You will note that there are no prominent similar services, even though PDF and scanners are not new technology.
There is a reason for this.
It's legal suicide.
I used to work for a publisher (editorial, not legal), and I will spare everyone the vaguely-remembered details except to say, once again: you're not the first person to think of this. The ones who came before you learned some very very expensive lessons. Are you prepared to lose thousands upon thousands of dollars? Our lawyers were perfectly willing to pursue every possible avenue of punishment, including getting you hauled in front of any disciplinary council we could track down.
It's not the grey area you seem to think it is.
posted by aramaic at 5:19 PM on December 29, 2009 [2 favorites]
1. Inserting metadata into the PDFs to personally identify the customer (To discourage circulation on P2P networks of the file)
Ummm...you do realize that anyone can strip metadata from a PDF within seconds, right? This is hardly a deterrent.
posted by special-k at 6:11 PM on December 29, 2009
Am I the only one who immediately thinks of the right to read?
Back to the OP: First, you'd need to say you're selling a service, not the PDF. That you simply scan the books that people bring to you. But if you're planning on not rescanning a second one when the second student walks in the door, well, then you've kept a copy of the first book, one that you weren't allowed to keep since you didn't own the first book. Think of this as similar to the issues faced with time shifting and cablevision's remote DVR case. That's the closest legal issue you'll find.
(And you don't have the money or resources to file as a DBA, collect and remit sales tax, etc., let alone to pay for the lawyers for this when the lawsuit comes down.)
posted by Brian Puccio at 9:32 PM on December 29, 2009
Back to the OP: First, you'd need to say you're selling a service, not the PDF. That you simply scan the books that people bring to you. But if you're planning on not rescanning a second one when the second student walks in the door, well, then you've kept a copy of the first book, one that you weren't allowed to keep since you didn't own the first book. Think of this as similar to the issues faced with time shifting and cablevision's remote DVR case. That's the closest legal issue you'll find.
(And you don't have the money or resources to file as a DBA, collect and remit sales tax, etc., let alone to pay for the lawyers for this when the lawsuit comes down.)
posted by Brian Puccio at 9:32 PM on December 29, 2009
I haven't read the other responses here, but I work in the Higher Education division of a major publisher. If we found out you were doing this, we would take legal action. We have taken legal action against just such activities in the past. Unless you plan on being Google from day one, I'd seriously reconsider.
posted by spicynuts at 9:45 AM on December 30, 2009
posted by spicynuts at 9:45 AM on December 30, 2009
Think of this as similar to the issues faced with time shifting and cablevision's remote DVR case. That's the closest legal issue you'll find.
Actually, the closest legal issue was the Kinko's copying students' textbooks issue. Because that's what he's doing--copying students' textbooks. And that didn't turn out well for Kinko's.
posted by Sidhedevil at 11:01 AM on December 30, 2009
Actually, the closest legal issue was the Kinko's copying students' textbooks issue. Because that's what he's doing--copying students' textbooks. And that didn't turn out well for Kinko's.
posted by Sidhedevil at 11:01 AM on December 30, 2009
Actually, the closest legal issue was the Kinko's copying students' textbooks issue. Because that's what he's doing--copying students' textbooks. And that didn't turn out well for Kinko's.
I'd argue he's not copying, he's format shifting so students have easier, on demand access, much like Cablevision was format shifting so their customers would have easier, on demand access.
posted by Brian Puccio at 7:52 PM on January 7, 2010
I'd argue he's not copying, he's format shifting so students have easier, on demand access, much like Cablevision was format shifting so their customers would have easier, on demand access.
posted by Brian Puccio at 7:52 PM on January 7, 2010
Nthing the legal deathwish angle. Please do not do it.
I have just started a job with a remit to do what you are suggesting *legally* and with the full consent of publishers and licensing agencies.
It is not possible to do this on any scale without getting legal clearance and paying for it!
You might consider looking for a job in a library setting up the legal version though!
posted by KMH at 7:14 AM on January 12, 2010
I have just started a job with a remit to do what you are suggesting *legally* and with the full consent of publishers and licensing agencies.
It is not possible to do this on any scale without getting legal clearance and paying for it!
You might consider looking for a job in a library setting up the legal version though!
posted by KMH at 7:14 AM on January 12, 2010
This thread is closed to new comments.
Do you have a sufficient amount of capital to defend yourself from the inevitable lawsuits your endeavor will attract from textbook publishers?
You really need to re-think the assumptions here.
If this were a legally viable business surely someone would have entered into this business a while ago.
But at the very least you need to speak with a lawyer who can throw cold water on your idea.
posted by dfriedman at 2:27 PM on December 29, 2009