Upholding The Social Bargain: Bookshare and Copyright Compliance
Benetech's largest social enterprise is the Bookshare online library for people who are blind or otherwise disabled when it comes to reading print. We have the privilege of being able to serve people with disabilities in large part because of a generous provision in U.S. copyright law. The Section 121 copyright exception (often known as the Chafee Amendment after the Senator who introduced it in 1996) makes it possible for Benetech to scan just about any book and make it available to this community. We don't have to pay a royalty, and we don't have to ask for permission.
The publishing industry and disability organizations both agreed on this provision of copyright law. The deal was: help people with disabilities that can't access books and don't hurt the economic interests of the publishers (and authors). At Benetech, our commitment is to uphold that social deal.
How do we uphold the social bargain?
1. Ensure that only people with qualifying disabilities get access to these books.
The copyright exception is designed to help only "blind or other people with disabilities." There are more detailed regulations that explain this in (sometimes confusing) detail, but the essence is clear. Someone who has no disability, or someone who has a disability but is able to pick up a print book and read it, doesn't qualify for these services.
Bookshare's membership team knows that getting this right is important to our ability as a nonprofit to carry out our social mission of helping people with bona fide disabilities. The biggest area of our work to date is for schools in the U.S., which get Bookshare at no cost when serving students with qualifying disabilities (thanks to funding from the Office of Special Education Programs at the U.S. Department of Education). If a school sends in a list of special education students to be served by Bookshare that seems high, our team circles back to the school and asks them to double-check that they understand the qualifications. The most common error is a school signing up all of their students with visual impairments and all learning disabilities. The majority of students with a learning disability don't qualify under the copyright exception, because their learning disability doesn't have a major impact on reading. About half of the time, the school comes back with a revised roster with a smaller number of students, based on their better understanding.
2. Educate and inform schools and our users about the qualifications.
Our team makes a huge effort to explain the qualifications, because the appeal of accessible books is strong for many more people than those who qualify under the narrow copyright exception. We think that all publishers should sell accessible ebooks when they sell their books through mainstream channels, but the copyright exception leaves that decision to the publishers except for this narrow community of people who are significantly disabled when it comes to print. A professional with expertise in assessing disabilities needs to certify each Bookshare member as meeting these qualifications (the copyright law in the U.S. uses the term "Competent Authority" to describe these professionals).
3. Employ "Social Digital Rights Management" technology.
Bookshare employs our Seven-Point Digital Rights Management Plan to encourage our users to respect the rights of copyright holders. In short, we trust our users to personally commit to only using Bookshare books for the purpose of creating accessible content for people with bona fide disabilities. Unlike traditional DRM that uses strong locks to lock up content to prevent copying, we allow our users to make copies. Traditional DRM has the ironic effect of locking out people with disabilities. It doesn't know the difference between needing to access the text of the book to make an illegal copy, or to send it to a Braille notetaker/display, or a voice synthesizer program that will read the text aloud.
We embed the user's name in the downloaded ebook file, both explicitly ("This book was downloaded by Jim Fruchterman") as well as hiding the same information invisibly inside the main body of the book. We also make it clear to users in the agreements they sign when they join Bookshare that access to these books is a privilege and that bad behavior could imperil this access in the future. According to our research, and reports from publishers and authors, we see little evidence that our users are violating their commitments to respect copyright.
4. Search the Web for illegal copies of Bookshare books.
We run regular searches on the Web for Bookshare content -- much like publishers and authors do. We find fewer than ten cases per year of copyrighted Bookshare content available online for free downloading, out of the millions of downloads we supply to hundreds of thousands of people with disabilities. When we do, almost all of them are inadvertent: basically users who don't understand how technical things work. How do we know it's inadvertent? Because the names of the users who downloaded the content are almost always still in the files in plaintext! Rather than deliberate piracy, we tend to find limited technical knowledge or carelessness, such as the teacher who downloaded a book at home for one of her students and then uploaded it to the school website as a shortcut, but where that directory was viewable on the Web.
When we find these copies, we suspend the account and immediately get in touch with the user or the school, get them to take the content down from the Web, and make them promise to never do it again. We have found fewer than five cases of people over the years who were knowingly violating the terms of our social DRM, and they have lost their privilege of using Bookshare.
5. Work directly with publishers and authors.
A year before launching Bookshare, we conferred with the major publishers in the U.S. through the Association of American Publishers (AAP). We stay in regular touch with the AAP about any major changes to policies at Bookshare and review our legal agreements (for end users, schools, and volunteers) with them. Their role is not to approve what we do, it's mainly to act as a representative for publishers, to let them know what Bookshare is doing, and to let us know about issues that concern publishers. I'm writing this blog post because one of the senior people at AAP suggested it would be a good idea to share this information with the world.
We also met with the authors. Most notably, we negotiated an arrangement with the Science-Fiction and Fantasy Writers of America (SFWA), the most technically astute group of authors. We committed Bookshare to be against "ePiracy," and gave authors a privileged ability to assess the quality of their work held on the Bookshare shelves. If an author lets us know that their work on Bookshare has significant errors (from the character recognition scanning or proofreading process), we'll take it down from Bookshare and not put it back unless we've corrected the errors. SFWA also agreed to encourage their authors to voluntarily contribute their works to Bookshare.
I'm happy to say these proactive activities have paid off. Over the last couple of years, more that 75% of the thousands of new books added to Bookshare each month have come directly from publishers and authors in high-quality digital formats that eliminate the need to scan and proofread their books. Thanks to this shift, nearly half of the 160,000+ books in Bookshare come with voluntary permission from the rightsholders to share these books with people with qualifying disabilities outside the United States, something not allowed by the copyright exception!
The essence of copyright law is to help society's interest in sharing knowledge and culture, while protecting the interests of authors and publishers. Because of our commitment to the social bargain made between rightsholders and the disability community, our ability to bring accessible books to the people who need them most has been powerfully strengthened. Ethical behavior engenders trust. More trust drives improvements in social outcomes. So much more good is possible for society in the atmosphere of trust and high expectations for everybody!