Seems that Airspeed Press has gone out of business?

[lowwall]

Taking a pirated complete PDF copy instead of buying an available hardcopy (at an ever increasing price point due to scarcity) seems to clearly fall into the commercial use definition?

You are conflating two factors. Commercial use is about what the copier is doing with it. If you download a copy for information related to your non-commercial dives, then it's not commercial. Downloading it to print and re-sell obviously would be. Other uses might fall in the middle.

The price of copies on the secondary market is relevant to another factor: "the effect upon the potential market for or value of the copyrighted work". But mitigating against that is the fact that by allowing the books to go out of print, the publisher has made its own clear determination that the potential market for and value of the work is limited. Especially in today's world where the availability of print on demand services and electronic distribution has made the cost of keeping an existing work for sale trivially low.

For anyone who is really interested in this, there's tons of info out there about making fair use determinations. Here's a trio of links to get you started. The first is a fairly compact summary which is good enough for a general understanding.

Fair Use Checklist :: NU Library

Copyright and Fair Use

The guide set forth below is available in PDF here: Copyright and Fair Use: A Guide for the Harvard Community. You may also read frequently asked questions concerning copyright and privacy for more information. Copyright and Fair Use: A Guide for the Harvard Community CONTENTS Basics of...

ogc.harvard.edu

U.S. Copyright Office Fair Use Index

The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).

www.copyright.gov

 

[ThatDogDontHunt]

You are conflating two factors. Commercial use is about what the copier is doing with it. If you download a copy for information related to your non-commercial dives, then it's not commercial. Downloading it to print and re-sell obviously would be. Other uses might fall in the middle.

The price of copies on the secondary market is relevant to another factor: "the effect upon the potential market for or value of the copyrighted work". But mitigating against that is the fact that by allowing the books to go out of print, the publisher has made its own clear determination that the potential market for and value of the work is limited. Especially in today's world where the availability of print on demand services and electronic distribution has made the cost of keeping an existing work for sale trivially low.

For anyone who is really interested in this, there's tons of info out there about making fair use determinations. Here's a trio of links to get you started. The first is a fairly compact summary which is good enough for a general understanding.

Fair Use Checklist :: NU Library

Copyright and Fair Use

The guide set forth below is available in PDF here: Copyright and Fair Use: A Guide for the Harvard Community. You may also read frequently asked questions concerning copyright and privacy for more information. Copyright and Fair Use: A Guide for the Harvard Community CONTENTS Basics of...

ogc.harvard.edu

U.S. Copyright Office Fair Use Index

The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).

www.copyright.gov

You have provided some excellent links. I suggest people read them to better understand the implications and protection afforded by copyright.

"Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports."

It is very clear that creating complete copies is considered a copyright infringement, regardless of fair use intention.

"What does a copyright authorize the copyright owner to do, or to restrict others from doing?

Subject to certain limitations, a copyright owner has the exclusive right to:

reproduce the work by making copies of it;
distribute copies of the work to the public by sale, donation, rental, or lending;
prepare new works derived from the original (for example, a novel adapted into a play, or a translation, or a musical arrangement); and
publicly perform or display the work.
Anyone who does any of these things without authorization infringes the copyright and can be liable to the copyright owner for damages. In some cases, in lieu of proving actual damages, the copyright owner can recover statutory damages of up to $30,000, or up to $150,000 if the infringement was willful, for the infringement of a work. Infringement can also be a crime, punishable by fine or imprisonment."

 

[lowwall]

It is very clear that creating complete copies is considered a copyright infringement, regardless of fair use intention.

This is not correct. There have been many cases in which courts has found that creating complete copies falls within the Fair Use doctrine. This is why individuals are allowed to record television programs without paying a fee and why Google was allowed to scan millions of books from university libraries to create the Google books site and why archive.org can display multiple copies of entire websites.

"What does a copyright authorize the copyright owner to do, or to restrict others from doing?

Subject to certain limitations, a copyright owner has the exclusive right to:

reproduce the work by making copies of it;
distribute copies of the work to the public by sale, donation, rental, or lending;
prepare new works derived from the original (for example, a novel adapted into a play, or a translation, or a musical arrangement); and
publicly perform or display the work.
Anyone who does any of these things without authorization infringes the copyright and can be liable to the copyright owner for damages. In some cases, in lieu of proving actual damages, the copyright owner can recover statutory damages of up to $30,000, or up to $150,000 if the infringement was willful, for the infringement of a work. Infringement can also be a crime, punishable by fine or imprisonment."

Yes, that's copyright. But none of this applies to copies made within the Fair Use exception.

 

[Lorenzoid]

You are conflating two factors. Commercial use is about what the copier is doing with it. If you download a copy for information related to your non-commercial dives, then it's not commercial. Downloading it to print and re-sell obviously would be. Other uses might fall in the middle.

The price of copies on the secondary market is relevant to another factor: "the effect upon the potential market for or value of the copyrighted work". But mitigating against that is the fact that by allowing the books to go out of print, the publisher has made its own clear determination that the potential market for and value of the work is limited. Especially in today's world where the availability of print on demand services and electronic distribution has made the cost of keeping an existing work for sale trivially low.

The bottom line, which I'm sure we who practiced copyright law can agree on, is that the decision would be up to a court, which would weigh the Fair Use factors based on the facts at hand and make a decision whether the Fair Use exception to copyright infringement applies in the particular case. Who knows what a court might decide. I agree that the fact that no new copies are being sold by the copyright owner weighs in favor of the copier, but that's just one factor. I would never advise relying on an exception to the rule--whether Fair Use or any other exception--to avoid copyright infringement. The rule is don't copy it; to avoid being found liable for infringement the burden is then on the copier to prove Fair Use. I'm not going to do legal research over this, but I'm not aware of any established precedent holding that the Fair Use exception applies to copying out of print books in their entireties for one's own use. That would be nice if it were clearly so--I'd love a site for trading out of print audio recordings a la the old Napster.

There have been many cases in which courts has found that creating complete copies falls within the Fair Use doctrine. This is why individuals are allowed to record television programs without paying a fee and why Google was allowed to scan millions of books from university libraries to create the Google books site and why archive.org can display multiple copies of entire websites.

My understanding of the so-called "Betamax cases" was that it was a very limited holding. If I recall correctly, the Supreme Court held that copying TV shows with a home VCR was Fair Use specifically because the copier was merely "time-shifting" the TV shows. It was all about "time shifting." That decision was never intended to apply more broadly, to books.

I don't know anything about the "Google books site," but I was tempted to, uh, Google it. Does not look like Fair Use has anything to do with it. Rather, you can only read a book in full if Google either got permission from the publisher or the book is in the public domain.

"If a book from the Library Project is determined to be in the public domain, Google will make it fully available to the public and you'll be able to read the book from start to finish. . . . Otherwise, you'll still be able to search through the text of the book, but Google Books will only display a few snippets of text to show you where your search term appears within the text of the book." About the Library Project - Google Search Help

 

[lowwall]

The bottom line, which I'm sure we who practiced copyright law can agree on, is that the decision would be up to a court, which would weigh the Fair Use factors based on the facts at hand and make a decision whether the Fair Use exception to copyright infringement applies in the particular case. Who knows what a court might decide. I agree that the fact that no new copies are being sold by the copyright owner weighs in favor of the copier, but that's just one factor. I would never advise relying on an exception to the rule--whether Fair Use or any other exception--to avoid copyright infringement. The rule is don't copy it; to avoid being found liable for infringement the burden is then on the copier to prove Fair Use. I'm not going to do legal research over this, but I'm not aware of any established precedent holding that the Fair Use exception applies to copying out of print books in their entireties for one's own use. That would be nice if it were clearly so--I'd love a site for trading out of print audio recordings a la the old Napster.

Agreed. You also have to weigh the likelihood of the rights holder bringing an action beyond a cease and desist letter. If I were a commercial entity, I certainly wouldn't host it on my website. But a hobbyist making it available for other hobbyists? I would suggest that's a fairly low risk activity. But don't rely on me for legal advice. My professional training is as a librarian, not a lawyer.

My understanding of the so-called "Betamax cases" was that it was a very limited holding. If I recall correctly, the Supreme Court held that copying TV shows with a home VCR was Fair Use specifically because the copier was merely "time-shifting" the TV shows. It was all about "time shifting." That decision was never intended to apply more broadly, to books.

I merely stated that courts have found circumstances under which "creating complete copies falls within the Fair Use doctrine." Not that there is a perfect match for the circumstances here.

I don't know anything about the "Google books site," but I was tempted to, uh, Google it. Does not look like Fair Use has anything to do with it. Rather, you can only read a book in full if Google either got permission from the publisher or the book is in the public domain.

They don't share the full work with the public, but they do with the donating institution. But again this was a case of a court determining that copying protected works in full was allowed under Fair Use.

Authors Guild, Inc. v. Google, Inc. - Wikipedia.

If you want to look it up. The case is: Authors Guild v. Google 721 F.3d 132 [Upheld on appeal and cert denied on subsequent Supreme Court appeal]

Decision: Since 2004, when it announced agreements with several major research libraries to digitally copy books in their collections, defendant Google Inc. (“Google”) has scanned more than twenty million books. It has delivered digital copies to participating libraries, created an electronic database of books, and made text available for online searching through the use of “snippets.” Many of the books scanned by Google, however, were under copyright, and Google did not obtain permission from the copyright holders for these usages of their copyrighted works. As a consequence, in 2005, plaintiffs brought this class action charging Google with copyright infringement.

Before the Court are the parties' cross-motions for summary judgment with respect to Google's defense of fair use under § 107 of the Copyright Act, 17 U.S.C. § 107. For the reasons set forth below, Google's motion for summary judgment is granted and plaintiffs' motion for partial summary judgment is denied. Accordingly, judgment will be entered in favor of Google dismissing the case. [emphasis added]

Note that Google not only made complete copies of over 20 million works, they delivered the full digital copies back to the participating libraries.

 

[Lorenzoid]

You also have to weigh the likelihood of the rights holder bringing an action beyond a cease and desist letter.

That is of course the real-world question, and it seems most people who are sharing Airspeed Press books in PDF have decided they're willing to bear whatever the risk is of being sued. People have tried in vain to contact Airspeed Press or anyone related. I myself have. I think the risk is low. Nevertheless, for me the issue isn't so much about being sued as about doing the right thing. I spent a career advising people not to copy stuff they didn't create unless they have permission---the "golden rule of IP" if you will.

If I were a commercial entity, I certainly wouldn't host it on my website. But a hobbyist making it available for other hobbyists? I would suggest that's a fairly low risk activity.

Sharing PDFs by email is no doubt low risk of being discovered. I don't know about others, but fear of being discovered doing something improper isn't my main motivator for not doing it.

I believe that Google case is not that relevant. In the Wikipedia entry you linked to, it says this:

In sum, we [the Second Circuit] conclude that:

1. Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use.
2. Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement.

So, the first point relies on Google providing only snippets and search functionality. The second point says that the libraries are presumably using the copies "in a manner consistent with copyright law." Google may be providing digital copies back to the libraries, but the understanding is the libraries won't be allowing patrons to copy them wholesale any more than they would knowingly allow the wholesale copying of any other book in their collection. It seems like a thin sliver of Fair Use that applies to Google in this situation.

The Wiki entry has more interesting information that may be relevant to Airspeed Press: "The subject of the copyright of orphan works – works that may still be under copyright but with no identifiable rights holder – was a significant point of debate after both this and HathiTrust." It's looking more and more like Airspeed Press's books may be orphan works. Still, it has only been a few years since they went silent.

 

[lowwall]

I don't know about others, but being discovered doing something improper isn't my main motivator for not doing it.

If we are turning this into an ethical question, I'd be interested in Mr. Harlow's thoughts. How important was it to him that his work be available assuming that he (his estate?) isn't making any money from it either way?

Does anyone know him well enough to have an opinion?

 

[Bigbella]

I sadly know of no one who has had contact with the J.D. Salinger of the diving world, for years . . .

 

[Jcp2]

That is of course the real-world question, and it seems most people who are sharing Airspeed Press books in PDF have decided they're willing to bear whatever the risk is of being sued. People have tried in vain to contact Airspeed Press or anyone related. I myself have. I think the risk is low. Nevertheless, for me the issue isn't so much about being sued as about doing the right thing. I spent a career advising people not to copy stuff they didn't create unless they have permission---the "golden rule of IP" if you will.

Sharing PDFs by email is no doubt low risk of being discovered. I don't know about others, but fear of being discovered doing something improper isn't my main motivator for not doing it.

I believe that Google case is not that relevant. In the Wikipedia entry you linked to, it says this:

In sum, we [the Second Circuit] conclude that:

1. Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use.
2. Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement.

So, the first point relies on Google providing only snippets and search functionality. The second point says that the libraries are presumably using the copies "in a manner consistent with copyright law." Google may be providing digital copies back to the libraries, but the understanding is the libraries won't be allowing patrons to copy them wholesale any more than they would knowingly allow the wholesale copying of any other book in their collection. It seems like a thin sliver of Fair Use that applies to Google in this situation.

The Wiki entry has more interesting information that may be relevant to Airspeed Press: "The subject of the copyright of orphan works – works that may still be under copyright but with no identifiable rights holder – was a significant point of debate after both this and HathiTrust." It's looking more and more like Airspeed Press's books may be orphan works. Still, it has only been a few years since they went silent.

Seeing that there is an extensive black market for expensive textbook copies and luxury handbags that aren’t really that well hidden, I suspect that this is way down on the enforcement list. You just have to know where to look.

 

[Lorenzoid]

Seeing that there is an extensive black market for expensive textbook copies and luxury handbags that aren’t really that well hidden, I suspect that this is way down on the enforcement list. You just have to know where to look.

As I said, the likelihood of being punished has never been my main motivation in obeying the law.