I wonder if this means he’ll put in a surprise appearance at D is for Digitize? Probably not, but a man can hope.

On the key competition point, he writes:

Others have questioned the impact of the agreement on competition, or asserted that it would limit consumer choice with respect to out-of-print books. In reality, nothing in this agreement precludes any other company or organization from pursuing their own similar effort. The agreement limits consumer choice in out-of-print books about as much as it limits consumer choice in unicorns. Today, if you want to access a typical out-of-print book, you have only one choice — fly to one of a handful of leading libraries in the country and hope to find it in the stacks.

I wish there were a hundred services with which I could easily look at such a book; it would have saved me a lot of time, and it would have spared Google a tremendous amount of effort. But despite a number of important digitization efforts to date (Google has even helped fund others, including some by the Library of Congress), none have been at a comparable scale, simply because no one else has chosen to invest the requisite resources. At least one such service will have to exist if there are ever to be one hundred.

If Google Books is successful, others will follow. And they will have an easier path: this agreement creates a books rights registry that will encourage rights holders to come forward and will provide a convenient way for other projects to obtain permissions. While new projects will not immediately have the same rights to orphan works, the agreement will be a beacon of compromise in case of a similar lawsuit, and it will serve as a precedent for orphan works legislation, which Google has always supported and will continue to support.

I’m not going to respond to his sloppy conflation of Google’s financial and technical investments in the project with the rather more questionable legal wizardry of the settlement. Executives are rarely careful about the details, even utterly critical ones. Trying to engage with them on such things is like trying to wrestle a swamp. The op-ed is a piece of rhetoric, and has to be accepted as such. (The “unicorns” part is a nice touch; it goes up there with “broken toothpicks” and “spoiled milk” on the list of unlikely things that the orphan books have been compared to.)

What is truly strange, though, is that Brin is giving a ringing defense of the settlement as it now stands. Did no one on the Google Book Search team forward him the memo about renegotiating the settlement in light of the antitrust concerns?

Sergey Brin said:

For those books whose rights holders have not yet come forward, reasonable default pricing and access policies are assumed. This allows access to the many orphan works whose owners have not yet been found and accumulates revenue for the rights holders, giving them an incentive to step forward.

Google and their accomplice, The University of Wisconsin, did not in the least try to contact me, they stole my book, and when told to remove their illegal copy of my book from their digital library I was told that I should go to their website to opt out of their program. I still say that Google & Company are doing a “George W. Bush”, of continually proclaiming something that is illegal(e.g. waterboarding), legal in hopes that people will believe you are sincere in your beliefs. Douglas Fevens Halifax, Nova Scotia The University of Wisconsin, Google, & Me

‘Nothing in this agreement precludes any other company or organization from pursuing their own similar effort.’ - Sergey Brin

What stops other companies and organisations from doing what Google has done is their respect for copyright law.

‘Today, if you want to access a typical out-of-print book’ I personally recommend starting with www.bookfinder.com; the used books search page on www.addall.com is good too. And so too, of course, is the interlibrary loan service.

It is interesting reading the comments to Brin’s piece on the New York Times site. Even some of Google’s supporters are finding Brin’s wild exaggerations, e.g. about the unavailability of out-of-print books, rather annoying.

Though I think my absolute favourite might be this comment, which I take to be ironic:

If what Google has done is such a great idea, and so nobly motivated, then surely Se[r]gey Brin won’t object if Google’s code and data are used and redistributed, at profit, by others, without consultation or prior arrangement. If intellectual property laws are so out of date when they are applied to “old media,” aren’t they even more anachronistic when applied to new?

As for what you, James, refer to as ‘Google’s financial and technical investments in the project’: these are of course trivial compared to the accumulated investment of time, energy, imagination, creativity, research, thought, design skills, money and promotional effort that authors and publishers have put into writing, editing, designing and publishing their books: an investment that Google is now seeking to appropriate for itself at a rock-bottom rate through devices for which ‘legal wizardry’ is a very tactful description.

‘What is truly strange, though, is that Brin is giving a ringing defense of the settlement as it now stands. Did no one on the Google Book Search team forward him the memo about renegotiating the settlement in light of the antitrust concerns?’ - James Grimmelmann

Interesting, isn’t it? But since reading the reports of Brin and Schmidt’s interview earlier in the week, with all that kindergarten stuff about the ‘evil room’, I have seriously begun to wonder about the people at the top of Google.

So many people weighing in on this topic disapprovingly that I believe it is important to note when there is possible significant bias. I’m not an author, and as a consumer my interest is purely in works of non-fiction. So, I self-conceptualize as someone without bias with respect to this issue. I get 99% of my books from the library down the street or, when necessary, the university library (extra 15 min walk).

It is difficult to take these criticisms seriously when the arguments are made by those that seem to have significant bias and/or seemingly over react when it is their IP being made available. There is also a significant, known connection between NYU Law and Microsoft (note: MS abandoned their similar project when they realized profits for this project might not exist). The founders of Google have academic backgrounds, as do you, Grimmelmann, and I believe that have earned the respect of making any claims very specific.

Google seems to be indicating that others will not be precluded from doing just as Google has in this situation. From my outside perspective the criticisms look like, “We don’t want to do it, nobody else wants to do it, but we don’t want anyone, especially Google, to do it either.” This is like the childhood notion of ‘taking one’s ball and going home’ and none of the criticisms look to be providing solutions with a direction for the greater good.

coldbrew You would have more credibility if you signed your name and actually engaged with the arguments being made on this blog. As it is, your anonymous attack comes across as nothing more than a sorry example of the depths supporters of the GBS will go to in defending the indefensible. If you really want to understand what the authors on this blog are on about, here’s what I suggest you do. Go steal a sheep. When you get caught, explain to the farmer that your theft was part of a grand plan to provide cheap meat to the world. When he takes you to court, base your defence on the arguments that a) the farmer’s complaint should not be taken seriously because he’s biased, and b) you grand plan is “in the public interest”. See how far that gets you. Lynley Hood (New Zealand non-fiction author with no connections to NYU or Microsoft)

Please allow me to preface this comment with an off-topic response to your criticism on names: I use my ‘handle’ across the web, and it is directly tied to a domain under my ownership. I do this not in attempt to mask my legal name, but rather because of a preference not to have my name in the index of the prominent ‘web crawlers’ (e.g. Google et al). In addition, despite your claim to use a supposed “real name,” it must occur to you that I (nor anyone else) have the ability, in any reasonable capacity, to verify whether the name that you have used is “real.” Please grant me the opportunity to discuss the issues with you, but without placing my legal name in the index of the search engines.

Please refrain from using analogies of physical property because, as I hope you’ll understand, nobody that steals your copy as a writer in order to read it, will be depriving you of the right to re-read or distribute it further if someone else takes possession of an additional copy. It is critical to your ability to understand the difference between copyright infringement and theft; otherwise, if you deny there is a difference, I will be forced to question both your intelligence and objectivity.

coldbrew:

You are a non-fiction reader; I am (primarily) a non-fiction author. Ah, and I have an academic background too, since you make an issue of this. And being very specific is meat and drink to me.

To begin at the beginning: in 2005 a US authors’ organisation, the Authors’ Guild, and a group of publishers backed by the Association of American Publishers (AAP), separately began litigation against Google alleging that its digitization of in-copyright works for its index without the permission of the rights-holders was an infringement of copyright. But instead of testing this matter out in the courts, the parties jointly agreed on a settlement. Together they drafted a class action settlement agreement which

a) defines as members of the class almost every author, publisher, author’s heir or other copyright-holder anywhere in the world: now, bear in mind that some authors in the US are still finding out what is happening, and many rights-holders throughout the world not only have not the least idea about it all, they can’t even read the (very complicated) settlement agreement, which only exists in English;

b) binds all these copyright-holders, unless they opt out once and for all by a specific date (and remember, many of them don’t even know this is happening), in what amounts to a perpetual non-negotiable contract with Google under which Google can digitize any work of theirs published in book form before 5 January this year; moreover, in the case of any of those works that in Google’s opinion is not ‘commercially available’ in the US, the company is permitted to exploit it commercially within the US in a number of important ways, including running ads alongside it, giving away or selling online access to it, and potentially including selling copies outright in pdf or POD form.

If the copyright-holders sign up with a new Book Rights Registry controlled by Google and a handful of big commercial publishers some money might come their way eventually. However, they will have no audit rights.

Although in the case of most works published before, say, 1995, and many published after that date, the electronic/digital rights definitely belong to the author, not the publisher, in those cases where the publisher still has a licence for the print rights the settlement agreement splits the payments for Google’s use of those works between author and publisher, instead of paying it to the author, as the owner of the relevant rights.

If an author’s works are published in single-author books (as opposed to multi-author anthologies or collections) and if they are the sole owner of the rights to those books they can instruct Google, through the Book Rights Registry, to withdraw their work from sale; but under the settlement agreement as it stood in its first incarnation (it is now being revised), a poet or a short story writer or an essayist who has published work in the past in multi-author collections would be compelled to see that work offered for sale by Google whether they wanted this or not.

If a copyright holder were for any reason dissatisfied with the actions of Google or the Book Rights Registry, or if there were a dispute between an author and a publisher about the ownership of a copyright, the settlement agreement would prevent their having access to the courts: instead they would have to take their dispute to an arbitrator. The pool of arbitrators would be chosen by Google and the Book Rights Registry. Arbitrators would not be bound by previous decisions.

Under the settlement agreement, if an author has a dispute with a publisher: had a work published without their consent or knowledge, for instance, or without receiving the promised payment (both these things have happened to me in the past) they would lose their right to take the publisher to court or otherwise challenge the publisher’s actions.

In short, it is what any sensible person must consider a bad contract, coldbrew, especially for authors. And it is not being freely entered into: instead, an attempt is being made to impose it on copyright-holders (including copyright-holders who don’t even know about it) in a manner that would not be legal outside the mechanism of the class action settlement - and may not be legal in any event. Many well-informed people think it isn’t.

So, I disapprove of what is happening, coldbrew. Nor do I think it is for what you call ‘the greater good’. I think what would better serve ‘the greater good’ would be ‘a vibrant marketplace for the electronic distribution of copyrighted works’. (I quote from the statement of interest regarding the Google Book Settlement sent to the court by the US Department of Justice [p. 1].) Note that word ‘marketplace’. The Google Book Settlement agreement (version 1) is not a recipe for a marketplace. It’s a single-buyer arrangement, imposed by the coercive force of what, if it is truly law (which I doubt), is bad law. It’s a scheme that might well kill the market in electronic books, and at the very least would badly damage it.

Why do I think a marketplace is important? Because it is only in a market, with competing buyers and a diversity of outlets, that authors - creators - can hope to achieve reasonable remuneration for their work. And if you starve your authors of pay most of them will have to stop work. It takes a lot of resources to write a book: resources of time (which in some shape or form means money), and especially in the case of much non-fiction, research resources (which again come at a cost).

I think that any benefits that might conceivably be obtained through the Google Book Settlement would be outweighed by this appalling likelihood: that it would kill or greatly weaken a living culture of professional writing in the long forms (novels, biographies, full-length works of history, and so on). I do not believe that that would serve ‘the greater good’.

As a final note, I would also point out that it is only in a market that there is a major incentive for publishers to improve their products and offer competing services. Google’s scans of print pages, or its epub versions, which reputedly take the form of raw, or near raw, OCR output, are plainly not the last word in high-class e-books. Yet if other publishers are squeezed out there is a serious risk they may be all, or nearly all, we get.

Okay, coldbrew: I was nice to you before. I took you seriously and debated you politely at length, despite some private reservations about your tone. But since I started my long comment (and was called away from it a number of times) I see you have a) suggested that Lynley may be lying about who she says she is b) made another silly statement to add to one that you made in your previous comment (of which more in a moment) and c) said that if Lynley insists on using an analogy you don’t like you will be ‘forced to question both [her] intelligence and objectivity’.

a) Speaking in a ‘reasonable capacity’, I have absolutely no doubt that the comment has been made by the author Lynley Hood, with whom I have corresponded. Of course, you can conclude I may be lying about that, if you wish: that’s your problem.

b) If you are going to presume to question people’s intelligence, let me invite you to think over one of your statements in your first comment:

I’m not an author, and as a consumer my interest is purely in works of non-fiction. So, I self-conceptualize as someone without bias with respect to this issue.

You think of yourself as having no bias with regard to the Google Book Settlement because you are only interested in non-fiction? The one doesn’t follow from the other at all. Think about it. And if you can’t see the problem, then you have a difficulty with logic.

And your silly statement in your second comment? It was here:

Please refrain from using analogies of physical property because, as I hope you’ll understand, nobody that steals your copy as a writer in order to read it, will be depriving you of the right to re-read or distribute it further if someone else takes possession of an additional copy.

Google has digitized Lynley’s books without her permission (which would certainly be illegal in her country, New Zealand, and in my country, the UK, and may, like it or not, be illegal even in the US) and now, using the Google Book Settlement as its authorization, an agreement negotiated with ‘representatives’ whom Lynley hasn’t appointed or had any communication with, is proposing to add insult to injury by selling access to/copies of Lynley’s books, despite the fact that they have never negotiated the right to sell them directly with her, as the law usually requires, or even had the courtesy to notify her about what they propose to do.

What Lynley was talking about was not about an individual stealing her copy to read the book, but about a giant corporation engaging in what James Grimmelmann describes above as ‘questionable legal wizardry’ in order to sell it for its own profit. And if it goes ahead with this, it will greatly damage, if not ruin, Lynley’s ability to negotiate her own price for her work on the open market, which is likely to mean that she suffers a financial loss.

c) Lynley did not, in fact, directly describe copyright infringement as theft: as you correctly said, she was using an analogy. That means a comparison. If you can’t see my point: think about it.

As to whether copyright infringement is a form of theft: that depends entirely on how theft is defined. I am not going to get into that argument. But selling intellectual property that you can only claim is yours to sell by a deal negotiated with parties who are not themselves the legal owners, nor the appointed agents of the legal owners: well, you know, under usual circumstances that’s not reckoned to be a legitimate business practice.

Hey coldbrew: I respect your strong feelings for privacy, but clearly you have not thought through the Google Book Settlement as it applies to you. Unless you surrender some of that privacy, and exit the coldbrew cocoon, you will not be able as a reader to fully enjoy the download benefits of the GBS, your google book data base usage will still be assembled and expoited by Google and its sub contractors and advertisers, your possible Google Book downloads will be tainted and tracable by the Settlement’s permitted electronic watermark/digital rights management features, all despite the walls and barriers you so have obviously erected and maintain, at some cost and inconvenience. Fortunately for you, Electronic Frontier Foundation, Prof.Grimmelmann, the contributors to this blogsite, and others are fighting and will continue to struggle,for your, and our, many precious freedoms. P.S. Maybe if you have thought this out, and figured out ways to have your cake and eat it too, i.e.you can be a full user of the proposed Google Book data base on Google’s presently specified terms, but without the serious disadvantages manifest and cited above, you certainly ought to share these ways and means with the rest of us.

I guess Sergey Brin did not read the book (neither have I) Moral Panics and the Copyright Wars by William Patry. A review is here: Copyright: metaphor and monopoly Douglas Fevens, Halifax, Nova Scotia The University of Wisconsin, Google, & Me

Dear fellow Digital and Copyright Barbarians Re: Moral Panics and the Copyright Wars I have just been surfing the web on this strangely timed book by Google’s Senior Copyright Counsel, William Patry. Before coming to Google three years ago (just after the start of the pending class action, he was Copyright Counsel to the US House of Representatives and an Advisor to the Registrar of Copyrights. A preview of the book is available on Google Book, and this includes a very strange disclaimer inserted in the front of the book.:”Google does not endorse this book” “Nor did I write it to advance Google’s interests,” he continues,”as much as I identify with and value those interests.” The previewed pages do not indicate if the GBS is itself specifically discussed in the book,although prior similar battles over video/film rights and one chapter entitled “The Barbarian as the Gate Keeper” references Associated Press. Who is the Barbarian now, one wonders, since Mark Helprin felt it was not the authors or rights holders-his book, Digital Barbarians is linked to Ken Auletta’s Googled: And the end of the world as we know it, on Amazon, but not to Patry’s book, nor is Auletta’s book linked to Patry’s book, so there we have parallel universes, by chance or design. (Alas, another failure of the metadata?) Patry’s book was published by Oxford U Press, the head of which, as we know is a big supporter of the GBS.The summary of the book on Google Book is verbatim the same on the Oxford U Press, site.Blurbs for Patry’s book on the Oxford UP site include ones by UCLA Law Professor Eugene Volokh , by Carl Melamad and David Sanger who covers the White House for the NY Times.Going back to Amazon, one sees Auletta’s book linked to “The Curse of the Moguls” “Too Big to Fail” and “Super Freakonomics” Hello, Google, is anyone listening or reading books any more? I did read the review in the Toronto Globe linked above, and the preview pages,etc and there is a lot of philosophy and history in Patry’s book. and generally it disparages the claims of authors, musicians and rights holders.It is very strange he has not yet appeared as a public spokesman for Google in the GBS. The Oxford U Press site for the book touts Patry’s high Google perch, which he distances himself from in his own disclaimer in the book itself, as I quoted above. Like the CIA, most big companies insist on vetting an employee’s manuscripts, and it is inconceivable this was not done here. But maybe, as Auletta’s New Yorker excerpt suggests, there is no grown up really in charge at Google on these vital issues and their policy and decisions are simply adrift, as the events and decisions re: the GBS in recent months seem to confirm.

I see by the review of “Moral Panics and the Copyright Wars” that William Patry wants to deprive authors of the only power they have - the power of words. In particular, Patry objects to the use of metaphor. True, we complain about inappropriate metaphors and ignore ineffective ones, but good metaphors are the lifeblood of communication. If someone rates his headache as nine on a scale of ten, we feel a detached sympathy. If he says, “It feels like I’m being stabbed in the eye with broken glass,” we wince, we moan. Yet none of us - the man with the headache, me, you dear reader have ever(I presume) been stabbed in the eye with broken glass. Such is the power of words.

There’s a lovely poem by Ron Koertge headed with a quote from the History of the Royal Society: “Even ornaments of speech are forms of deceit”. The poem ends: When he thinks of his beloved, he opens his notebook with a flourish. “Your lips” he writes, “are like lips.”

Jerome, I thought of your post above when I read this article:Obama & Google (a love story) Douglas Fevens, Halifax, Nova Scotia The University of Wisconsin, Google, & Me

Regrettably, I’ve been unable to participate in what seems to be a good debate with well reasoned arguments. Unfortunately, I don’t have the benefit of producing something with the idea I will be perpetually able to collect revenue from it; in fact, I must continue to produce daily or go without income. Hopefully, I can address a few of the responses I’ve read above:

From what I was able to quickly skim, I must respond first to Spraggs:

1) I didn’t say Lynley was lying, but that from my perspective her identity is as provable as mine. This is a red herring and not worth disputing.

2) I must apologize for a poor choice of wording as I never intended to suggest that my interest in non-fiction works directly made me a more objective party. Rather, my interest in this matter is purely academic, and allows for a more distanced and objective analysis of the situation. In other words, I have nothing to lose and nothing to gain. Perhaps you question my opinion on the matter, but I believe I am quite capable of arguing otherwise

I can pirate all of your works and those of every other with reckless abandon. Despite Garchik’s belief that I cannot avoid identification by Google (which is not even my goal; it is not showing in their index), it is quite simply not true. Anyone with any technical knowledge has an easy way to use proxies of all kinds including Tor, Bitblinder, or simply my webhost’s server. I don’t need your help, but thanks for the offer :)

As a person currently earning my keep by helping people and small org.s with their IT issues, and one with an aspiration to build a product usable by others, I know that getting distribution is my most difficult obstacle. I’ve previously been involved with a VC backed start-up where we often said (to justify giving away pieces of our company), “Would you rather have 80% of $200K business or 25% of a $20M business?”

Take from that what you will, but please understand that my interest is an earnest attempt to understand what the underlying concerns are surrounding the making of more info available to more people. As an undergrad, I didn’t even get listed as an author for 3 published papers I contributed to significantly as the PI and post-grads were the only ones mentioned. I would do it again because I believe more people should have access to the data we obtained from studying the enzymatic system that we were studying.

Re: “Obama & Google (a love story)”. The UK Sunday Times reported that the “love affair” is over. See: Barack Obama love affair with Google ends. “Our” James Grimmelmann is quoted in the article. Douglas Fevens, Halifax, Nova Scotia The University of Wisconsin, Google, & Me