D is for Done

Thanks to all who organized, helped, attended, or watched.

I do not expect to be back online for some time.

Take it easy.

I look forward to seeing the video files in due course. I wasn’t able to watch the streaming.

That’s alright, we’ll stay online for you in case anything interesting happens.

Am looking for any published reports of the sessions, James, can you link us to any??

The twitter stream at #disfordigitize is pretty good, @oitp did a great job, with excellent contributions from @copyrightlibn and others.

Three of us blogged the talk by Dan Reetz, which was really something:

Would love to see any others add here.

  • And Norman Oder in Library Journal on the Samuelson keynote and one of the panels.

It took a little while, but I have finally posted my summary and comments on the conference at http://blog.librarylaw.com.

Thank you, thank you, Peter Hirtle for posting this detailed summary. I give it 5 *s and urge all those who missed the conference to read it .

“I was struck by how much of the anger and distrust directed at Google should really be directed at Authors Guild and AAP” Peter Hirtle.

Peter - oh sure we’re angry and distrustful of AG & AAP, but they haven’t stolen our intellectual property. Google has. It’s all about hubris (Hubris: Overweening pride or insolence that results in the misfortune of the protagonist in a tragedy. Hubris leads the protagonist to break a moral law, attempt vainly to transcend normal limitations, or ignore a divine warning with calamitous results). If Google didn’t know that it was copying in-copyright, in-print books without the knowledge or consent of the rights holders when it started (which, if true, could only be the result of negligence, incompetence or blind arrogance), it soon found out. Sue us, said Google, and went right on copying in-copyright, in-print books at an ever increasing rate. “We’re going full steam ahead, no matter what happens with the settlement (Dan Clancy, Boston Globe July 24, 2009). And your surprised that we’re angry! You think we should trust Google now?

Lynley, Google of course knew that it was scanning in-copyright books as part of its search operations. It also knew that there is a very strong likelihood that this is legal under American copyright law. (At least one lawyer at the “D is for Digitize” conference asserted this, even if this question was not the focus of the conference.) What, after all, is the difference between making a copy of an entire copyrighted web page in order to index it and making a copy of an entire copyrighted book in order to index it? If there was hubris, it was on the part of the AG and the AAP for asserting rights that American copyright law does not give them.

One of the fears of fair use advocates is that the settlement will make Google’s legal actions impossible for other search engines by establishing a market (which doesn’t exist now, and would never have existed if it wasn’t for Google) for the licensing of the full-text of books for indexing. The settlement makes other arguments for fair use of the material much dicier.

If Google had wanted to deliver or sell the full text of the books it scanned, then the AG and AAP would have had a strong case. But they jumped the gun and acted prematurely.

This may come as a shock to Google, but American copyright law doesn’t apply outside America. Didn’t they think of that? Haven’t they read “The Ugly American”? Copying an entire book (well actually far less than that) for any purpose is a copyright infringement under New Zealand law, and under the copyright laws of most civilised countries.

Yes, copyright isn’t extraterritorial, but that sword has two edges. Google isn’t doing its scanning of in-copyright books in New Zealand, so New Zealand copyright law simply doesn’t apply in the first place. Or are there legal proceedings in the New Zealand courts against Google for its scanning that I’m unaware of?

James Grimmelmann said “Yes, copyright isn’t extraterritorial, but that sword has two edges.”
Copyright laws may not be “extraterritorial” but there are international coventions (i.e. Berne, NAFTA [North American Free Trade Agreement]) that America is a signatory to. You can be sure that if Google was from any other country besides the USA, Americans would be hollering “Piracy” and they would be actively working to stop this infringement of their copyrights by another country. Douglas Fevens Halifax, Nova Scotia The University of Wisconsin, Google, & Me

Peter Hirtle said: “by establishing a market (which doesn’t exist now, and would never have existed if it wasn’t for Google)” I have seen this comment raised by others that Google was some how being a responsible corporate citizen when it undertook to mass digitize in-copyright works without consent of the copyright holders. To say this market would never exist if it was not for Google is a stretch, it may take longer, but at least people’s rights would not be trampled in the process. Douglas Fevens, Halifax, Nova Scotia The University of Wisconsin, Google, & Me

One of my books that Google has scanned was published exclusively in the UK and Commonwealth. It’s a poetry anthology, and the reason for this was simple: the money for clearing licences would not stretch to covering the extra sums that some of the rights-holders demanded for US territorial rights. That book was never legally sold into the US. What law applies there, James?

Gillian We lawyers have an old saying: that when people say its not about the money, well, then it is about the money.You say that the many poets (or their UK publishers)in your anthology wanted too much $$ if the book was to be published in the US- well now, the GBS is offering to pay $15 per poem, i.e. insert, and 63% etc. I think the GBS money offered is too low.If your poets feel that way, then they ,their publishers or UK authors or poets assns should file objections in the U S Dist Court ASAP on that basis as the Germans, French and Swedes did and the Chinese will probably do also, soon.

So far as I recall, it was mainly some of the US publishers and agents who wanted to charge a big premium for the US territories. (As against that, certain other US rights-holders were extremely generous in their terms: even to refusing to accept payment.)

But the important point is that the book was published in the UK, on a contract under UK law signed in the UK, and it was never exposed for sale in the US. The contract between me and the publisher, and all or most of the licences obtained from the contributors, specify sale in the UK and Commonwealth only.

They also covered print publication, and nothing more. All other rights were reserved to the authors.

I have an obligation to the contributors to my anthology to use their work only to the extent permitted in the licences they issued me: viz, a print publication issued by the specified publisher and distributed only in certain territories. No agreement cooked up by third parties in a foreign court in a country where the book wasn’t even legally distributed can change that.

Nor, in my opinion, can it magic into being a pseudo-contract between Google and myself, or Google and any of the contributors, or Google and the publisher, which would enable Google legally to publish a digital edition of this UK book in the USA.

Nor can it grant me rights over the book that are not in the original contracts between myself and the authors - as GBS agreement mark one would have purported to do, in not permitting contributors to multi-author volumes to withhold their poems/stories/essays/extracts in those works from sale through Google Books, unless the editor and/or publisher should withdraw the whole collection from sale.

Anyone who argues that all this is okay because it is being done in the US, under US law, is also making the statement that international copyright law means nothing in the US any more, and also that the US will no longer respect foreign (or indeed domestic) publishing contracts. If that turns out to be really the case, we may be certain that there will be consequences.

Jerome - For authors, there are a couple of points about the GBS that trump money: fairness & moral rights.

I know lawyers and Americans (& others) struggle with the notion of moral rights, but every 3-yr-old knows about the unquenchable fury of that arises when one is treated unfairly. Do you know that psychology/economics experiment where people refused to accept money when they were offered a manifestly unfair amount? In real life the rational, self-interest model of human behaviour (offering people something instead of nothing, and expecting them to accept it gratefully) only works when people are treated fairly. If you don’t treat people fairly they will throw the offer back in your face.

Then there are moral rights. They’re non economic rights. They don’t exist in US law. Moral rights can’t be bought, sold or licensed. Their only value is in the marketplace of ideas. So why should lawyers and Americans and Google give a damn?

Moral Rights 101: When the losing party in a court case whimpers “I may not be legally right, but I am morally right”, they’re not talking about moral rights in “the author’s moral right to the integrity of the work” sense.

While most IP law is about protecting the incomes of rights holders, moral rights law is about protecting the uniqueness of individual creative self-expression.

Interestingly, lay people who have never heard the term “moral rights” know instinctively what it means. A few years back, when I complained to friends about my then publisher’s proposal to radically alter my ms, the response was always “But he can’t do that! It’s your book!”

Moral rights are about the invisible thread that connects the creator to the work. Moral rights are about all the fiercely independent, cantankerous, bloody-minded, ego-centric, argumentative authors - and their astonishing gift to the world: their ability to turn life into art. They wrote the words that fill the books that Google is pirating. It is their words that give the books their value. By riding roughshod over moral rights, by treating authors with contempt, Google is killing the goose that lays the golden egg.

Gillian, U.S. law still applies to the scanning. There could be an issue with an unauthorized importation of your book into the U.S., but (a) that would lead to liability for someone other than Google, and (b) it would still be judged under U.S. law.

This is not the same as saying that international copyright law means nothing. The decision has been made by the IP diplomats of the world that one is expected to sue for infringement in the country of infringement. There may be issues with the substantive rules each country applies, but territoriality itself is a basic principle of international copyright law.

The case that brings together Gillian and Lynley’s comments is Gilliam v. ABC. ABC showed significantly edited versions of Monty Python shows. The Pythons successfully argued to the court that the license they had granted to the BBC didn’t permit it to license ABC to make changes of the sort that it had. The opinion is notable for its partial embrace of moral-rights-style reasoning within the American legal framework.

James - Google is scanning in the UK, at the Bodleian Library, Oxford. I don’t think they’re scanning in NZ, but one of the NZ Society of Authors’ objections to the GBS is that the court has misapplied the Berne Convention. Berne provides for reciprocity of protection, not reciprocity of burden. The GBS erodes our rights under Berne.

Perhaps even more than the “moral rights” analysis, the Lanham Act analysis in Gilliam v. ABC would appear to be directly applicable to Google’s replacement of e-mail signatures with Google links in its bootleg republication of Usenet articles (with the additional problem in the “Google Groups” case that many articles published on Usenet contain explicit Creative Commons “attribution” licenses which this practice by Google pretty unquestionably violates).

“Moral Rights” , “Moral Panics”
Lessons learned on “moral” standards from Monty Python?

Help, I’m falling through the looking glass,

I thought the GBS involved a court case not a religious schism.

Ed, the Dastar case from 2003 doesn’t leave much room for Lanham Act claims based on failure to provide attribution. To quote the Court, “[W]e conclude that [‘origin of goods’] refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.” The reasoning may have been driven by the fact that the work there had entered the public domain, but the holding is a gloss on the Lanham Act that’s equally applicable to works still in copyright.

Thank you for the pointer, James. On first reading, I’m not entirely persuaded that the court’s analysis in Dastar is completely applicable to works in copyright, or to sale (or publication with revenue-generating advertising) of intangible electronic copies as is the case with Google’s republication of articles from Usenet. There’s also the question of how the argument would differ if, like much of the content posted on Usenet, the work in question was first published outside the USA and under different copyright (including attribution) rules that do include moral rights.

But in any case the primary objection (other than the moral one) to Google’s Usenet bootlegging is the flagrant full-text copyright infringement, without even the arguable “fair use” claim for “snippets” that Google (and you) have made for Google Book Search.

And the replacement of author e-mail signatures with links to Google (not to mention the insertion of ads from which Google keeps all the revenue, with no option for copyright holders to opt in to claim a revenue share or to opt out) would undercut any attempt to defend against such an infringement complaint with some sort of argument that Google is merely a passive conduit relaying Usenet content like any other NNTP server.

James - I personally find the indiscriminate scanning regrettable, but I am open to the idea that under certain circumstances it might possibly - though not certainly - be acceptable under US ‘fair dealing’ principles.

If Google had confined itself to indexing books, without any commercial exploitation (including serving ads against search results), that would be a whole different situation to the present one.

(It would have been better still had it invariably honoured its promise to refrain from scanning books when it was asked to do this by the relevant rights-holders [it appears that this has not always happened].)

What is certainly not defensible under copyright law - international law, and also, as I understand it, US law - is making commercial use of a work without the explicit consent of the owner(s) of the relevant rights.

That is why it would be illegal for me (or the publisher) to bring out a digital edition of my anthology: I didn’t purchase a licence to use the work of the contributors in digital form.

It hardly needs saying that neither I (nor the publisher) could license Google to bring out a digital edition, either; nor could we publish an edition of any kind in the United States of America, for reasons explained in my previous comments.

Frankly, I am not convinced that what neither I nor the publisher could license can be legally licensed on the decision of a judge at the instigation of third parties who are not connected to us as agents, partners, or any other way, through the mechanism of a civil law suit in a foreign country.

Moreover, I believe that if the settlement goes ahead in anything like its original form, and if I registered the book with the Book Rights Registry and if I permitted Google to display the work, serve ads against it, and sell digital copies, taking an editor’s cut from the proceeds: then I might very well find myself liable to multiple suits for copyright infringement in the United Kingdom. I do not see how any action by a foreign court could indemnify me against that.

And the same would, I think, potentially apply to, for instance, UK publishers who registered works with the Book Rights Registry when they did not have a licence for the digital and/or US rights: I think the authors of those works might well be in a position to sue them in the UK for infringement of copyright; also (quite possibly) over violations of their moral right of integrity (accorded to UK authors under the 1988 Copyright Act).

I am, of course, not a lawyer, and this is not a legal opinion: it might be called moderately well-educated speculation.

Jerome - If you put your hands over your ears and scream whenever anyone mentions moral rights, you will never understand why authors are so angry. And if you do not understand that, you will never understand why the GBS is in such trouble. As you rightly point out, the word moral contains a minefield of meanings, so let’s just say this: individuality matters; creativity matters. For those of us who live in a parallel universe to yours, individuality and creativity matter more than money. If you philistines would only stop trashing our values, we go quietly back to scribbling in our attics. Here is your poem for the day (reproduced with the author’s permission).


I come

from an opposite country

to yours,

where water spirals

& the moon waxes


my stars assemble

in unfamiliar patterns

& I watch often

not traffic or television

but hour by hour the huge tide

absently fingering rocks & small shells

& the wet brown kelp

where fish go sliding through.

if you were with me now

on my favourite beach,

we’d watch the distant seismograph

of silver peaks darkening to indigo

& walk to the breakwater

towards the harbour mouth,

disturbing the flocks of terns

that wheel up shrieking in slim wild voices

to land again behind us

renewing their conference.

               I would slip

my cold hand into your pocket,

you’d look at me and grin

& we would walk together quietly

right to the very end,

where big chained rocks hold back

the same Pacific ocean, lumbering in.

‘Google is scanning in the UK, at the Bodleian Library’

This is true, but I understand that the Bodleian is only permitting them to scan books that are in the public domain.

Gillian, I am delighted to learn that you, at least, are “open to the idea that under certain circumstances it [indiscriminate scanning] might possibly - though not certainly - be acceptable under US ‘fair dealing’ principles.” Thank you for your willingness to try to understand American copyright law.

You also write: “What is certainly not defensible under copyright law - international law, and also, as I understand it, US law - is making commercial use of a work without the explicit consent of the owner(s) of the relevant rights.” This is basically correct. (There are certain situations under fair use where one can make commercial use of a work without the owner’s permission, but they are not at issue with Google.) This is why Google was only going to make snippets available; it knew that for anything more, it needed permission.

The “genius” (if you want to call it that) of the class action settlement is that the class’s attorneys represent and serve as the agents for all rights owners and can therefore give permission to Google to make use of the works. So everything that Google wants to do would be legal because your representative (who is also the representative of the authors in your book as well as the representative for the publishers) has given Google permission to do it.

Now maybe you don’t like the way that the lawyers for the plaintiffs are managing your affairs, but that is an issue between you and the lawyers, not you and Google. Or maybe you don’t like the fact that your representatives have negotiated future rights rather than just getting compensation for perceived past harms. Or maybe you don’t like the idea of a class action period. I might agree with you on that. In principle, it seems like a good idea to create the fiction of a class when, in a case like this, it would be impossible to identify and locate all people who have been potentially harmed. In practice, most class actions seem to exist to benefit lawyers rather than victims. Just compare the payouts to rights holders versus lawyers in this settlement.

I have no idea why the Authors Guild and the AAP decided to make this a class action suit rather than just bringing suit on behalf of their own members. To my mind, it is a good thing because it is the only way to get permission to use works whose rights holders are unknown or can’t be located. Similarly, it addresses the thorny issue of who actually owns the digital rights in a book. At least those who don’t like the settlement can opt out, leaving the class to consist of the authors of these problematic works (as well as authors who are happy that their works will once more be available and earning money - since only works that are not commercially available are included).

Your observation about whether you would be liable in your country for following the Author-Publisher Rights Appendix is an interesting one. It seems unbelievable to me that you could be liable for actions in the US that are compatible with US law, but then I am not a lawyer, so what do I know.

Peter - I visited the Cornell University Library (CUL) website in the hope of gaining a better understanding of your enthusiasm for the GBS, and your insistence that authors should direct their wrath at AG and AAP rather than Google.

Among other things, I discovered that I am the copyright owner of a book in the CUL, so my interest in this matter is personal, as well as professional.

I presume that as senior policy advisor to CUL with a special mandate to address IP issues, and as a member of Cornell’s Large Scale Digitization Steering Committee, you were closely involved in CUL’s 2007 decision to join the Google Book Search Library Project (GBSLP).

The information available online regarding CUL’s agreement with Google indicates that it was negotiated by a library anxious to comply with (US) copyright law.

The CUL FAQ sheet states: “For books protected by copyright, users will just get basic background (such as the book’s title and the author’s name), at most a few lines of text related to their search, and information about where they can buy or borrow a book. If publishers or authors do not want to have their books digitized, Google will exclude them.”

The Fall 2008 issue of the CUL publication Manifest states: “when Google does not have an agreement with the copyright owner, then only a few lines surrounding each search term, ‘a snippet’ in Google terminology, are available for viewing.”

In the light of the above, Google’s agreement with the AG & AAP must have come as a shock to CUL. The GBS allows Google to display up to 20% of any CUL book for which it has no agreement with the copyright owner. Thus, through the GBS, Google has swept away the copyright protections in the CUL-Google agreement, and in doing so has exposed CUL to a greater risk of copyright violation charges than was the case under the CUL-Google agreement.

So what is CUL to do? Tell Google to honour its agreement with CUL, and threaten to withdraw from the GBSLP if it does not? Or sell out to the copyright thieves? Maybe the latter. After all, CUL and Google are now in this together. As the GBS FAQ sheet says, opting out of the GBS doesn’t just leave authors and publishers free to sue Google, it leaves them free to sue the participating libraries as well. If that happens, CUL will need Google’s support. All things considered, CUL cannot afford to challenge Google now.

Peter -

What is at issue in my view is not class action law: which competent legal authorities seem to think is being misapplied here in any case. What is at issue is the misapplication of class action law to a) circumvent copyright law b) lay an oppressive burden of administration on authors and authors’ estates.

If Boni and Zack were my lawyers, I would be in a position to instruct them, or sack them. The fact that I can’t shows the claim to be a legal fiction.

As to the question of who deserves the odium: just ask the old question ‘cui bono?’ [who profits?].

Gillian asks “cui bono?”. That is a great question. Here is my current opinion:

  1. The lawyers for the Authors Guild. They get the lions share of the money being distributed in the settlement.
  2. The lawyers for the AAP.
  3. The Books Rights Registry. There is no indication on how much this operation will cost, but we can bet it is not going to be a non-profit foundation that cuts its expenses to the bone.
  4. Authors of out-of-print books who actively participate in the settlement. They start getting something for their books which by definition are not being sold now. Furthermore, they get paid for uses of books by authors who do not actively participate (something that still strikes me as unconscionable).
  5. And last, maybe Google. I still find it hard to believe that these out-of-print books, which are generating no monies now, are suddenly going to generate tons of money for Google through either direct sales or advertising. If they could, don’t you think Google would be charging for public domain books rather than giving them away freely?

Lynley writes of my “enthusiasm for the GBS.” If you look at my postings on GBS over on http://blog.librarylaw.com where I can express my personal opinion, you will see that there have been lots of things that have rankled me about the settlement. In particular, I have argued that the proposed settlement is unfair to foreign authors and authors who elect not to participate in the BRR. Even the Cornell University Library’s letter to Judge Chin about the settlement expressed strong reservations about it as currently configured.

But you are wrong when you write “Google has swept away the copyright protections in the CUL-Google agreement, and in doing so has exposed CUL to a greater risk of copyright violation charges than was the case under the CUL-Google agreement.” GBS increases the protections available to partner libraries. First, it removes the slight risk that providing copies of physical books to Google for scanning as part of the pre-settlement project is a form of contributory copyright infringement. (This isn’t really that important an issue, however, because if you look at the public Google contracts, you will see that Google indemnified its library partners against this risk.)

Second, it secures the permission of all copyright owners (other than those who elect to opt out) to proceed with the full text delivery of the books. All libraries in the US want to respect copyright. If GBS is approved, everything that Google wants to do will be done with the permission of the copyright owners (via their agents, the lawyers representing them and the BRR).

Peter Hirtle writes of, “Authors of out-of-print books … which by definition are not being sold now…. these out-of-print books, which are generating no monies now.”

This has been Google’s claim, but it ain’t necessarily so.

We can’t tell for sure, since neither the criteria to be used by Google and the BRR in determining which books are “commercially available”, nor the arbitration procedures or the constitution of the BRR or of the kangaroo courts that will “adjudicate” these questions, have yet been determined.

But I think it unlikely that Google or the BRR will classify as “commercially available”, for example, books the content of which authors have incorporated into their own self-published Web sites (generating revenue for the author/publisher through advertising) or books available for paid PDF download from the authors’ Web sites.

Books that aren’t available through the usual commercial print distribution suspects may not be generating any money for print publishers, but many of them are generating money — in many cases more than they would likely receive from the settlement — for their authors.

‘I still find it hard to believe that these out-of-print books, which are generating no monies now, are suddenly going to generate tons of money for Google through either direct sales or advertising. If they could, don’t you think Google would be charging for public domain books rather than giving them away freely?’ - Peter Hirtle, above

It is interesting to note the following exchange from an interview this week with Ken Auletta, author of the newly published Googled: The End of the World as We Know It:

[Q]: Google co-founder Sergey Brin told you that “people don’t buy books anymore” and that you should put your new book online for free. Your response?

Auletta: When Brin told me this I asked him a series of questions. Who, I asked him, would pay me a salary to work on the book? Who would pay for my 13 trips to Google, including airfare, hotel and car? Who would edit the book? Who would do the book tour and marketing? Who would prepare the index? Who would do the legal vetting?

By the end of my questions, Brin wanted to change the subject. The reason, I think, is that he has an innocent faith in the Internet and inadequate knowledge about how books are published.

Like Peter, Ken Auletta evidently thinks that Google, or at any rate Brin, is well-meaning. Personally, I don’t care if Brin is ‘innocent’ or as evil as they come: his comments, as reported by Auletta, are shockingly naive, and no one with his power, no one who is attempting, as he is, to restructure an entire industry, has the right to be so ignorant of how it really functions.

More: this is highly enlightening in what it reveals of Brin’s view of the book-selling trade: apparently he has so little concept of books as salable objects as to suggest that even a brand new, highly topical book should be put online ‘for free’.

It implies that Google is not really expecting or, presumably, planning to make a profitable thing out of selling books. This tends to support part of Peter’s comment.

However, I don’t think this means that the company’s intentions are in any sense altruistic.

In my paper The Google Book Settlement and European Authors I suggested that most of the money Google expects to make out of Google Books would come from advertisements served on Book Search results (Google’s Plans for Making Money, section 9). (Under the GBS agreement mark one none of that income would be payable to the rights owners.) Whether it would generate ‘tons of money’ for them is another question: one that maybe even they cannot answer.

And then there are the research uses of the book corpus: for improving machine translation and so forth. Again, probably of unquantifiable value. And again, no share of any profits would go to the rights holders.

One more point: Brin’s dismissal of book-selling in his conversation with Auletta raises the suspicion that Google’s official line, which has been repeated in more than one statement to the press, that the GBS would ‘[give] authors and publishers new ways to distribute their work’, is very carefully worded. ‘Distribute’ and ‘sell’ are not synonyms.

Brin and his Google co-owners are hypocrites, since they themselves use patent and copyright laws to hide and protect the secrets of their search algorithms and other creative technologies and intellectual properties they control, but want all the rest of the creative world to surrender their work to Google for free.Fortunately, the law applies to Google too, much as they would like it not to.

Brin appears to regard books as an obsolete form of technology, to be mined for data as one might mine for gold in a river bed - suck up all the contents, then separate the precious stuff from the dross, and sell it.

When was the last time he sat in a comfortable chair and, over a period of days or weeks, read a good book from cover to cover? Think of “The Catcher in the Rye”. Think of Edmund Morris’s wonderful “The Rise of Theodore Roosevelt”. Books like these grab readers by the lapels on page one and transport them to another world through the interweaving of words. Characters develop, plots twist and turn. Readers keep turning the pages, savouring every word and phrase, transfixed to the end.

To readers, books in their entirety are infinitely more valuable than the searchable data they contain. Anyone who wants to digitise books needs to understand this. Brin et al obviously do not.