1DollarScan, Cablevision, and two reasons you can't always get what you want

Books are portable. But one company wants to make your books even more portable than they already are. So why is the Authors' Guild so angry about it, and do they have any right to be?

In an interesting deal announced last week, a service called 1DollarScan has closed a partnership with Evernote to take your physical books, scan them, drop them into your Evernote account, and then destroy the original copy you sent them (it would appear that it actually gets destroyed as part of the scanning process). 1DollarScan apparently already had deals with services like Dropbox and some others. But linking to Evernote, one of the most widely-used note-taking services out there, appears to have brought a lot of attention to 1DollarScan, including some it may wish it had never attracted.

According to Publishers' Weekly, the Authors' Guild has made some statements that 1DollarScan is violating copyright law and infringing the author's right to choose whether their book should be made available digitally. Unpacking this statement gives me a chance to look at two often-misunderstood issues around content creation: whether making copies breaks the law, and why media companies don't think like people.


Issue #1: Making copies may or may not break the law. It's actually surprisingly complex to know whether it's illegal to make a copy of entertainment content. Although time-shifting has been permitted ever since the Sony Betamax litigation in the 1970s, in that case consumers were making copies for themselves to watch later. It's another thing when you have a company making copies for someone else. But it's not the first time this has come up.

In the case of Cartoon Network v. Cablevision, Time Warner's Cartoon Network channel sued Cablevision, a large cable company in New York (and on what I'm sure is a totally unrelated note, also a competitor of Time Warner Cable). Cablevision had launched a service where its customers could ask Cablevision to record specific programs for them and then play them back later using Cablevision's "Remote Storage DVR System" or RS-DVR. After a lot of litigation the RS-DVR was found to be legal because:

• It only made copies at the request of a consumer. That is, Cablevision didn't just record the entire programming stream all day and serve up copies to whatever customer asked for them. It would wait for a consumer to ask for a specific program and it would copy that program specifically for that consumer.
• Because Cablevision was acting as an agent for the customer and not on its own, and since the consumer's own activity would be legal, so would Cablevision's.
• Cablevision was only streaming to the specific consumer who asked for it, and not to the public at large.

This may seem super-technical, and maybe it is. But I think it's going to be relevant to the 1DollarScan situation. If for whatever reason I took a book that I have bought, photocopied it, threw out the original, and only ever read the photocopy, is that infringement? If so, what changes if rather than photocopying it, I scan it instead? Under the Cablevision case, 1DollarScan seems to be my agent, so if it's not infringement for me to do this it shouldn't be for them either.


Issue #2: Media companies don't think of content the way people do. Take a close look at what the Authors' Guild is complaining about: that authors who don't want their works to be released in digital format should have the right not to have their works become digitized. And although the Authors' Guild purports to speak on behalf of authors, its language here is much more like that of a media company.

To a media company, when you bought a book, you bought a series of pieces of paper with text on them. You bought the right to a physical thing that you can put on your shelf. You didn't buy the right to have those exact same words on a computer screen. That would be a completely different thing requiring you to pay a completely different price.

This is another aspect of a theme I've raised on this blog before and will again: owners benefit by selling in small slices, purchasers benefit by selling in big chunks. When a media company buys content it tries to buy as much as it can. But when it's on the sell side, it shifts its perspective to sell as little as possible. However, the fact that a product can be sold in different iterations doesn't mean that consumers should have to pay for each of them.

In the past, no one would have developed the business model of destroying a book to photocopy it and give you back the photocopy. That made no sense. But in a digital world where now that "photocopy" can be accessed anywhere through numerous devices, that business model suddenly becomes very attractive both to companies and to consumers. The Authors' Guild may not like it. But it will be very interesting to see what, if anything, they do about it.


LINKS:
Publishers' Weekly article on 1DollarScan-Evernote partnership:
http://www.publishersweekly.com/pw/by-topic/digital/content-and-e-books/article/53661-1dollarscan-takes-service-to-cloud-authors-guild-worried.html
Cartoon Network v. Cablevision:
http://scholar.google.com/scholar_case?q=csc+holdings&hl=en&as_sdt=2,48&case=13763893657469687275&scilh=0