The OBA letter also states:

Perhaps most important, it will help to bridge an information divide, enabling growing global access to an international archive of printed works.

It would seem that the OBA has no qualms about including non-American works in their “international archive.” So, I guess instead of fighting Google, us gnats will have fight the United States Government defending our rights. Douglas Fevens, Halifax, Nova Scotia, The University of Wisconsin, Google, & Me

Douglas

Yet more people in some sort of uniform, landing, sticking a flag in, and claiming ownership of a country. Either: on the basis of a hand full of shinny beads and a signature from an old and confused local. Or simply on the basis of’terra nullius’.

This newspaper article and my comment to it come to mind. Douglas Fevens, Halifax,Nova Scotia, The University of Wisconsin, Google, & Me

douglas Nice comment.

But who is who is the man in the uniform? The “uniform” is the normal garb of collectives.

Perhaps Google & the net is more; a complex symbolic structure of exchange of(of complex symbolic structures), than a uniform? It has opened up new ways for people to do things to each other that are,good and bad ,not new. But… the story right now feels more like another old story.

The whole notion of a “universal library” is counter to copyright. Copyright gives me, the writer, the power to say, “I don’t want you to publish my work at all. I don’t want you to give away free, unprotected, or weakly protected e-files that will gut my sales.” The public simply will not pay for what they can get free, whether legitimately or by piracy.

It doesn’t matter who would run this e-library. Whether it’s Google, the Open Content Alliance, or the US Government, they’d still destroy my livelihood. I work more than full time as a writer and self-publisher, and I invest (and risk) large sums of money. I simply cannot afford to do all that for free.

Nor am I motivated to do it for a public that is so contemptuous of my work that they demand it without payment. Why should everyone else expect to be paid for their own professional work and enjoy all their enlightenment and entertainment free in addition, while I’m expected to provide it to them without demur?

If a “universal library” is for the public good, then we should all have free groceries for the public good, free housing for the public good, free medical and dental care for the public good … the list goes on.

I refuse to be turned into a slave for everyone else’s benefit.

Frances - You are spot on. In common law, the right to say no, that is, the individual right of control of usage is the essence of ALL property rights. What is going on here is very simple: various kinds of ‘representative groups’ are attempting to take your individual right of control and make it a right of control of their group and then on-sell it to other third parties for a nice profit. This is an attempt to overturn the English Common Law understanding of property rights. It is disguised in lots of different ways but nevertheless, what they are trying to do is, in plain English, theft. The end buyer is not the thief; they are recipients of stolen goods and therefore parties to the crime but it is not their hand in your pocket.

The Open Book Alliance: Three Questions with Peter Brantley Third Question:

3) Is there another way besides Google Book Settlement to deliver on the promise of a digital library while also respecting copyright holder’s rights? [Emphasis mine]

Even though there is a title to question three on the recording, I did not find where Mr. Brantley answered this question.

Douglas Fevens, Halifax,Nova Scotia The University of Wisconsin, Google, & Me

” 3) Is there another way besides Google Book Settlement to deliver on the promise of a digital library while also respecting copyright holder’s rights? [Emphasis mine]”

one possible alternative

Matters involving Economic rights are questions of power. In a Civil democracy such questions are ultimately, questions for elected legitimate power because ‘rights’ are powers and thus must never be absolute. And the answer to such questions of power in a democracy, will always depend upon the circumstances; It be always be compromise, For the benefit of ‘All of the people’.

Douglas,

The Open Book Alliance (aside from the writers’ groups currently members because they themselves don’t have the money to legally fight Google) consists of entities who want to do the same things Google wants to do. They just don’t want Google to have a monopoly. If they can get the Settlement dismissed I will be delighted, but the next thing they will do is go to Congress and ask for another Orphan Works Act so they can do exactly the same things themselves.

Their mentioning “writers’ rights” is just lip service to be discarded.

If the Settlement fails and this has to be passed through Congress so everyone can equally violate the rights of US copyright holders—lucky, lucky you for not being a US citizen.

In the later part of the 18th century, Britain was in a crisis over property rights. The punishments for violations of property rights became more and more draconian. Because there was no public police force, these draconian measures became a kind of perverse incentive ‘I might as well hang or be sent to Botany Bay for the theft of a pound as hang for the theft of a handkerchief’. There was a an equal chance of being caught AND punished.

Is a fine of US$2 million (or even US$60,000) for ‘stealing’ 24 recordings that different from ‘I sentence you to transportation to Australia for the term of your natural life’?

Should the real physical theft by a shoplifter of a DVD also result in a fine of US$2 million?

The problem of the orphan books looks circular. Relatively minor violations of copyright invoke draconian punitive damages. If Google was to commit a similar violation by scanning the pages of a book by an uncontactable author and then that author was found by an enterprising law firm, it could be up for a lot of punitive damages. Damages that do not reflect the actual economic value of the thing stolen don’t work. I suggest that in this case, the economic value needs to be set up the elected government.

We’re not talking about some unemployed worker who was forced by starvation to steal a loaf of bread, got caught, and was punished by being transported to Australia for life.

We’re talking about a corporation that knowingly violated millions of copyrights for profit. A corporation that made 10 billion from search in the first half of 2009, just with their current resources. Google can well afford to pay up. I have no sympathy.

And yes, John, I believe amateur pirates should also be fined. Otherwise they will keep on doing it. If someone is stealing my work, I have every right to defend myself by every legal means, and will continue to do so vigorously.

Also—forgive me for the dribble effect—aside from not believing that there is any real “orphan works” crisis, I do NOT want the US to pass legislation assigning equal commercial value to all works. Books are not even remotely all equal in the marketplace, whether they are currently in print or not. Assigning a fixed small value to each, wtithout the consent of the copyright holder, just gives everyone who wants to use the work a strong disincentive to locate the copyright holder before use. Supporting such legislation is just saying, “I don’t want Google to violate my copyrights; I ALSO want Microsoft, Yahoo, and every publisher, filmmaker, and everyone else who wants to profit from my copyrights to violate them.” It’s a much WORSE situation than the Google Settlement.

I will mention that one notable absence in the last proposed Orphan Works Act was any kind of date defining “orphan.” Dates didn’t even enter into that picture.

There’s no crisis here requiring legislation. Just greed, and corporate financial support for the legislation.

Frances - I agree with you that the orphan works crisis is complete rubbish and is a smokescreen for hidden, dark motives. Google’s behaviour, as reported, is criminal and should be dealt with appropriately - not by some commercial sweetheart deal. Why the US, British and Australian governments seem to be so gormless about Google’s behaviour, is beyond me.

It should not be dealt with by paying a lot of money to an unrepresentative small group of American authors to distribute as they see fit. The key issue is the individual author’s right to refuse consent to Google’s use of their work. Legislation is needed, I think, because many of the issues that the internet raises have new twists and because the balance of individual benefit and public benefit is a political issue. We all have rights and obligations. It is important that obligations to the group be dealt with by legitimate elected authority and not by an unrepresentative group mounting a class action. Perhaps the US government could, by law, require Google to continually publish updated lists of authors’ and their book titles before they are scanned and, require Google to accept unconditionally any refusals of consent by authors (made within a reasonable timeframe). Violations of this could be subject to criminal sanctions, not just fines.

Finally, excessive and outrageous punishments of relatively small matters brings the whole legal system into disrepute and glamorises the lawless as ‘outlaws’. Bushrangers having a go at unjust authority.

Frances “unemployed worker who was forced by starvation to steal a loaf of bread” is a romantic story made up to cover over the shame of the ‘convict stain’. Nearly all were sentenced for stealing bolts of cloth, silver knives and so on from their masters , picking pockets or if of middle class backgrounds forgery or highway robbery.

I agree that Google’s behavior is criminal and that they should not try to circumvent Congress on copyright legislation. And that the UK, Canadian, and Australian governments are astonishingly unconcerned. The US Justice Department is advising on the Settlement; and I am astonished that Google, so far, appears to be ignoring most of the issues the JD has raised.

As for the lists of books scanned: The current Google Book Search does not represent the scanned books database. Apparently some scanned books are in it and many are not. The only way to find out if Google ALREADY scanned your books is to opt INTO the Settlement and file a claim.

Rust Settlement refused to give me this information because I said I had opted out. They said they were afraid of “false claims.” However, numerous “false claims” are likely from authors who do not understand how their contracts with their publishers converge with the terms of the Settlement. Intruding the Settlement on existing publisher-author contracts will bring endless confusion on the heads of the Book Registry, authors, and publishers. They must know this. Their refusal to tell me whether my own books were scanned—I made it clear I was not interested in anyone else’s—is bogus. It’s now moot anyway, as the deadline for scanning books was taken out of the Settlement, so they can always scan them in the future.

Otherwise—I don’t understand why you want to bring in issues of petty theft in connection with the Google Settlement, which is grand theft. No highwayman ever cleared that many billions.

Frances- there is trick called the Prestige (basic trick of magicians and conmen). It involves dangling something rather noticeable in front of the audience so that they don’t notice what the other hand is doing. Prior to 1800, the wealthy privatised a lot of commons; they had more than their fair share.

John,

I have a degree in history; I got it a while back, but I understand a lot of what you are saying about the past. Frankly, you’re discussing too many issues at once for your arguments to be as effective as they could be. This is current law and economics, and it’s copyright law, not theft of physical property. Even regarding copyright law, in the US mentioning the 18th century brings up, from some, an argument for returning to very old laws because they were what Our Founding Fathers wanted. Times have changed. Our Founding Fathers thought slavery should be legal too.

Fran

Section 8, Item 8, of the United States Contitution states:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Since I started following and researching the Google & Company I have noticed that a lot of— most Americans only consider copyright as a monetary issue and not a human rights issue.

Douglas Fevens, Halifax, Nova Scotia, The University of Wisconsin, Google, & Me

‘Most Americans’ - Douglas, I am not sure that is necessarily true.

You cannot generalise from perceived deficiencies of US copyright law to the attitudes of ‘most Americans’.

For some thoughtful comments on creators’ rights, I commend Californian attorney Christian L. Castle’s recent post Artist’s Rights are Human Rights on his Music • Technology • Policy blog.

Douglas,

What anti-copyright-advocates like to do is bring up that clause from the Constitution, plus the term of the Copyright Act of 1790, which was for a term of 14 years and a renewal term of another 14 years, if the author was still alive at the end of the first term. They then argue that 14 years should be enough today.

Renewal requirements were eventually abolished in the 20th century. They are what created many of those so-called orphan works (in the sense of, “is it still under copyright”). The US Copyright Office still has all the physical renewal records, they have put many records online, and I think they are aiming to put them all online. Maybe they’ve even achieved it by now. I haven’t checked recently. The physical records have always been available in the Copyright Office, and there are services in Washington DC who do searches of the physical records for publishers. But Google and similar entities don’t want to bother looking up these records.

One reason renewal requirements were abolished, is that the US Copyright Office was overwhelmed with submissions. It’s far worse today. Even though they are trying for electronic efficiency, in my experience it takes anywhere from 9 months to 18 months after submitting a book, to get a certificate of registration from them. The registration coverage does extend from the date they received the submission, not when they finally got around to processing it. But you can imagine how much worse it would be if the Copyright Office had to process renewals in addition.

Also, authors of articles, essays, short stories, poetry, and other short works included in books and magazines, have traditionally relied on the copyright coverage provided by their publishers registering the collective work. As far as I can tell, Google is now claiming such registrations do not provide valid legal coverage and all those authors should have registered the works separately (years ago!), which few of them did. (Almost everybody else respected collective registrations before.) This is very important, not only in the light of the book-scanning project but Google’s more recent magazine-scanning project.

But supposing such registrations are legally declared lost and everyone is forced to register all their short works separately from now on to maintain any control over them: Full employment for the Copyright Office. Oops, I meant the “Book Registry” that’s supposed to benefit us all so. I suppose we’d all have to register our websites and blogs too, which would be really interesting considering that some people change theirs daily.

As for “human rights,” US authors, artists, composers, and so on care about their creations just as much as non-US creators of works. Furthermore, most have political and moral beliefs regarding how their own work should be used. I would find it very offensive if certain kinds of advertisements were placed next to my work. I can control that by selling articles only to magazines that do not carry such advertisements, to book publishers (who tend to advertise only their other books, if anything, within a book), and by publishing my own books. I would also find it offensive if Google declared portions of my books “inserts,” as the Settlement gives them the power to do, and freely combined them with works by other authors that I do not want to be associated with.

But, as far as I know, US copyright law gives creators of works no basis for “moral rights.” In the current climate, if creators of works say, “I created that, therefore I should control its use,” they are usually told they are being selfish and the “public good” is far more important. On the other hand, if they argue that not controlling the work deprives them of the right to follow the “American work ethic” and earn an honest living just like the rest of “the public,” they have a legal and cultural basis for defending their work.

I sometimes think individual Americans are blamed for the failures of their legal and political systems, even ones those individual Americans protested and voted against. It’s bad enough to get shafted by your own government or large US corporations, and it’s even worse to then be blamed for those entities also shafting people who live in other countries. This is an international issue: We authors all need to stand together.

And we should be reaching out for alliances with visual artists, because they also have much material published in books and magazines. Even though the Settlement does not currently cover most of it (as far as I can tell), Google will reach out to seize their rights next. Google will hardly want to publish millions of illustrated books without any of the illustrations.

Thank you Gillian for the link. I guess I should have prefaced “most Americans” with “I think”. Thank you Frances for your comment as well.

I sometimes think individual Americans are blamed for the failures of their legal and political systems, even ones those individual Americans protested and voted against. It’s bad enough to get shafted by your own government or large US corporations, and it’s even worse to then be blamed for those entities also shafting people who live in other countries. —Frances Grimble

I would not be able to own my country, Canada, if I did not accept Canada as a whole, the good and the bad. There are events such as the deportation of the Acadians, Residential Schools, and the the internment of Canadians of Japanese decent during WWII that I must accept as part of my heritage. I was not responsible for these and many other terrible events, but I, as a Canadian, must own them. If the United States does not hold Google responsible for their mass infringement of the copyrights of others— if the Google Book Settlement becomes the law of the United States— it will not be just an illegal act by a large American corporation, it will then become American and part of their heritage. Douglas Fevens, Halifax, Nova Scotia, The University of Wisconsin, Google, & Me

Frances the full rights of copyright copyright are a right of individual control.

I posted this before .. But Its possibly worth posting again

The following is from the Review of Australian Copyright Collecting Societies conducted by Shane Simpson[ a well respected expert of copyright law] on behalf of the Federal Government in 1995: “The general attitude of WIPO to statutory licences is that they should be avoided wherever collective administration is feasible. In brief, it is considered that collective administration recognises that the individual copyright owner has the essential right to control usage - even though, for ease of administration, that individual may choose to license or assign that right to a representative organisation. When that right to control is taken away, all that one is left with is a ‘right to remuneration’, which is a quite different concept to the full rights of copyright” …and… “not all rights of copyright benefit from collective administration. Many exercises of the rights are best dealt with on a one-by-one basis. The most simple indicator of this is that no group of Australian copyright owners has transferred all of their rights of copyright to a society for collective administration.”

In reference to the argument that individual primary rights are obsolete in this modern digital age and should be replaced by statutory rights, Shane Simpson further states:

“It is very doubtful that this response is in the interest of the general community, although it is certainly in the commercial interest of certain commercial would-be, rights-user groups.”

John,

I don’t want “collective administration.” I want everyone else’s hands off my copyrights and off demanding a cut of my income for horning in on them. I’m doing a perfectly good job of “administering” my own copyrights. I flatly refuse to give a percentage to some “Registry,” whether run by Google or any other party. Anyone who wants to license my rights for any use can contact me, directly. I insist on the full power to refuse such offers for any economic, moral, or other reason that suits me. That is my right under copyright law. Any “Registry” would take away my rights.

Fran

Frances I run my own copyright, it is a matter of free individual choice.

Simpson assumes voluntary “collective administration.” -Australians do do a fair bit of this kind of collective — It suits some (and some situations), but its not compulsory.

The situation that you are in and well describe: “demanding a cut of my income ” is an attempted imposition of a ‘duty’ to support to them , on you. What they are after is a hypothecated tax to pay for their endless life of endless meetings and endless lobbying.

As long as the registries are voluntary, other people are welcome to join them. They are not for me.

The Google Book Registry, however, under the Settlement would charge the copyright holders for support. Considering the likely set-up costs (which the Settlement claims will include reading all those publisher-author contracts), the seed money will be used up fast, possibly costing authors more to maintain the Registry than it will ever pay them.

Why isn’t the Australian government raising hell about this?

Fran

Fran. Why isn’t the Australian government raising hell about this? Is a good Question,one along the lines of the case of the dog that did not bark. In Nz the Authors society has not been taken over , and it thus made a lot of noise.

This scheme would have a snowballs chance of passing our constitution. I guess that is the point. It is an utterly unlawful scheme, and one that would never get far without bypassing, sneaking under the radar.

The ‘Settlement’ is an unlawful tax tricked up as a commercial contract.

Fran

The royalty payment is not in itself a tax.

However : If usage by the individual right holder is made compulsory . Compulsion then changes the nature of the payment of management fees to the cost of the collection/distribution agent, into a tax paid by the rightholder. This is the hypothecated tax that is concealed in the settlement.

As long as joining , opting in, is not truly voluntary, the payment made to the management costs is tax-like.

John,

I meant why are the Australian, and Canadian, and UK governments not raising hell about the Settlement, as a whole. As for the French, did Google just buy them off by agreeing to help fund their national project?

Fran

Fran as to to first part of the question. God knows.
The Australian (and possibly the UK) authors societies are so intertwined with the collection societies to be virtually the same thing. These societies have grown to be so well padded and slow on a diet of statutory rights that they can barely move , perhaps they think will get some easy slices?

As for France, it is not a Common law country, the ‘code civil’ has a different , not compatible conception of commercial property rights to Common law.

There is a world wide push to foist an European understanding of commercial rights on the English speaking peoples of the world without them noticing the move.(“You will get used to it” is much used favorite by them.)

I think it is is driven by the fact that the European conception of commercial rights is not very Competitive . Hence the urgent ‘need’ for harmonization .

The Democratization of patent ownership really took of just a few weeks before the Great Exposition of 1851. Prior to that it patents were exclusively the right of the very well off and powerful. By extending a easy & free access to a right of control of ideas/machines to thousands of artisans/small shops and so on it made it possible for others to look at these ideas/machines and try to copy them for education, for national improvement. And at the same time it protected the artisans from looking copying for.. theft.

’ I’m walking backwards for christmas’ was very funny as sung by Spike. I don’t like the sound of the current interpretation at all. Compulsory rights of control held by people who are not elected sounds a bit too much like a right royal tune.

Thank you Gillian for the link. I guess I should have prefaced “most Americans” with “I think”. Thank you Frances for your comment as well.

I sometimes think individual Americans are blamed for the failures of their legal and political systems, even ones those individual Americans protested and voted against. It’s bad enough to get shafted by your own government or large US corporations, and it’s even worse to then be blamed for those entities also shafting people who live in other countries. —Frances Grimble

I would not be able to own my country, Canada, if I did not accept Canada as a whole, the good and the bad. There are events such as the deportation of the Acadians, Residential Schools, and the the internment of Canadians of Japanese decent during WWII that I must accept as part of my heritage. I was not responsible for these and many other terrible events, but I, as a Canadian, must own them. If the United States does not hold Google responsible for their mass infringement of the copyrights of others— if the Google Book Settlement becomes the law of the United States— it will not be just an illegal act by a large American corporation, it will then become American and part of their heritage.

Douglas Fevens, Halifax, Nova Scotia, The University of Wisconsin, Google, & Me

I do not hold myself personally responsible for all the actions of my country, especially those that harm me. It would be like holding the Japanese-heritage US citizens interned here during World War 2, responsible for their own internment because they were citizens.

I will continue to do what I can to oppose the Settlement and to get Congress to vote against another “orphan works” act that would also affect at least images, and possibly also text, copyrighted in other countries.

But, if my country still will not act to protect my copyrights, I’m seriously thinking of emigrating. Canada was my first choice, but so far the Canadian government has done little to protect creators’ rights regarding the Settlement, at least. New Zealand has but are there any jobs there? I am also seriously thinking of France.

Fran

Regarding the comment above: “This newspaper article and my comment to it come to mind.”

Kansascity.com has either changed their web page or moved the opinion piece to their archives, for which access requires a paid subscription. I did not keep a copy of the article but here is my comment:

Here is another comparison Mr. Marsh. When the American settlers headed West they displaced the First Nations peoples, who were there before them, usually with no compensation and very often violently. Google (read America) has digitized thousands of in-copyright works from all over the world with no compensation to the rights holders of these works. They did not even attempt to contact the owners. They stole them, just as sure as much of your West was stolen from the First Nations peoples.

Douglas Fevens, Halifax, Nova Scotia — The University of Wisconsin, Google, & Me