GBS: Institutions, Competent and Not

From time to time, I’ve argued that the Google Books settlement tries launder copyright reform legislation through through a class-action settlement. In response, people often argue that Congress isn’t likely to pass copyright reform, or will foul up the task even worse if it tries. True or not, this misses the point. As outside critics, we can debate whether courts or Congress are more competent to fix copyright. But if the courts give up on Congress, then all is lost, not just for copyright, but for our constitutional democracy as well.

James - I agree. This is a public, political issue that has been taken over by a rag-bag of opportunists, commercial interests and pirates, squabbling over who gets the spoils. The internet has created big problems for copyright as an effective system of paying creative people for successful invention. These problems would be best solved at a policy level. The dangers of the path that we are heading down are a radical re-definition of property rights, a kind of compulsory collectivisation by gangsters and perhaps more importantly, a granting of excessive power to various sorts of cultural, scientific academies. Academies - professional groups - have their uses however, their propensity to regulate, to manage, is very anti-innovation in its effects. For creatives, solitude and silence is a necessity. Academies always produce, to quote a great French radical artist, ‘conscientious service of the art of boredom’.

Mr. Grimmelmann,

I confess to not having read much of your blog. I am running a micropublishing business more than full time, and the Google Settlement is an incredible beast to try to keep up with in addition. Also, I am not a lawyer. However, I have worked in publishing for 25 years, 10 of them for other publishers before starting my own business. I am also a serious collector of rare books in a specialized field, so I have some knowledge of the used book market. My comments are:

Copyright law does not need “reforming.” All the ballyhoo about “orphan works” is generated by businesses wanting to use those works for their own profit, not only Google but Yahoo, Microsoft, and other big businesses. This ballyhoo did not exist before the Internet.

This is because a large proportion of post-1923, but long-out-of-print books, are out of print for excellent reasons. Which are, most of them are not really very good or useful. Reprint publishers do search Copyright Office records, locate copyright holders, and reprint some good books. Locating most of these books and their copyright holders is by no means always impossible. Most post-1923 books are not all that rare on the market. (Really rare books are more likely to be in the public domain.) And they are not all that old. Many of their copyrights are owned by people who still have heirloom copies of their parents’ or grandparents’ works on the family shelves. My parents produced some “orphan works” too.

These books have largely been gathering dust in libraries and used bookstores, where the general public has not been particularly interested in them. But, with the advent of the Internet, businesses have discovered that even though it is impossible to make a profit from carefully reprinting most of these as individual books, it is possible to make a profit from making cheap scans en masse and selling ads next to them. Especially if it is legally declared unnecessary to either locate or pay any of the copyright holders.

The general public has been whipped up to care about the incredible educational value of all these second-rate novels, outdated technical books, etc., that they’ve been passing up for decades in used bookstores; which stores would be delighted to sell these same people physical copies at very reasonable per-book prices. The public thinks they will get millions of books free, and they will worry later about whether they are of any use. People are very happy to get things they don’t want, as long as these are free. All this PR has been generated to get the public to support “orphan works” acts in Congress.

I know of at least two fairly recent attempts to pass “orphan works” acts, though I’m sure you know more about them than I do. I read the latest one and wrote letters about it to members of Congress. The definition of “orphan” did not mention publication dates, and the criteria for locating copyright holders were laughable. Basically anything with a not immediately identifiable copyright holder was fair game. Groups of photographers, illustrators, textile designers, and other visual artists were up in arms because commercial art is often published without the artist’s signature or credit, but the sales of rights are, of course, how they earn their living. But the act also covered text. As far as I could tell, if a writer’s work was pirated once, posted on a website without attribution, and the person who owned the site did not bother to answer an email asking for permission to use it—bang, it was up for grabs.

Such acts are just a rights grab of everything faintly grabbable for the financial profit of parties other than the copyright holder.

I will be delighted if the Open Book Alliance manages to scotch the Google Settlement entirely. But the next thing that will happen, is that the parties who will profit from massive scanning programs of their own (I assume this will not include the writers’ groups in the coalition), will mount another “orphan works” act. Probably, yet another one that actually covers a huge number of works that are not orphan by any stretch of the imagination.

As for copyright terms—It can take many years of continuously selling one book for the writer to make any decent amount of money from it. Print-on-demand and e-books are already rendering obsolete the old megapublisher model of “sell it for two years and then put it out of print if it’s not a blockbuster.” Many midsize and small presses have long been operating on a “backlist strategy” anyway—that is, keeping books in offset print form for a long time even if sales are modest, and building up lists of solid books instead of trying to rely on ephemeral bestsellers.

Therefore, writers and their publishers have an excellent chance of keeping good books alive at reasonable cost to themselves. Considering that most writers don’t make all that much money, it is grossly unreasonable to snatch away their chances of getting as good a return as if they’d gone to work full time at some other job.

I have no children, nieces, or nephews. However, I want to leave my husband money to make up for the loss of my income if I die before he does. And most people do have a younger generation of relatives, and they want to will them something. If people invest in real estate or stocks, they can leave them to their children. (My retirement income is going to come from my parents’ stock investments and my in-laws’ real estate investments, because my profession has not allowed me to earn enough money to build up much in savings.) The state does not snatch that property away for “the public good.” I fail to see why writers and other creators of works are supposed to suffer financially for “the public good,” while people with much higher incomes are supposed to get all their education and entertainment free in addition.

It is time for the public to realize that writing is a profession. It requires hard work, long hours, professional expertise, and often a significant financial investment. Publication also usually involves numerous other people who need to be paid—editors, proofreaders, indexers, illustrators, graphic artists, and others such as translators and fact checkers. Publishing is a business. It involves all the usual overhead such as office rent and supplies, computer equipment, accounting and legal services, etc. Then, the public doesn’t consider marketing necessary, but to actually make any money from a book someone has to send press releases, buy ads, and dozens of other things.

The only legal basis for writing and publishing to survive in our culture is copyright. We need a defense of our rights, not an erosion of them.

“It is time for the public to realize that writing is a profession.”

Writer is not a profession in any generally recognized sense of the term. Journalist, sure. Editor, maybe.

Thought: the very non-“professional” nature of the job, perhaps, is why the class “writer” is so ill-suited to being represented by something like the Author’s Guild?

“big problems for copyright as an effective system of paying creative people for successful invention”.

Frances, I take your point. It is careless to assume that anything that the copyright industry asserts is anything other than a lie.

We recognise instantly the pattern of behaviour that you are describing. It is worldwide; the actors change but the script is always the same.

Writing is most certainly a profession. An enormous number of corporations and publications employ people who work under titles like “technical writer,” “staff writer,” “publicity writer,” and many others. They require writing experience on the resume, and portfolio samples of same. Book authors derive all or part of their income from their books, and publishers also usually want writing credits to consider acquiring the manuscripts. Journalists sell articles to magazines by the same methods.

Even if you personally think someone else’s income is so small they wouldn’t miss it if you snatched it away by distributing their work free, they happen to be the ones paying for their own housing, groceries, the support and education of any children they have, and everything else. I assure you, I would emphatically miss the income I’ve derived from writing in the course of the last 25 years, however contemptible you may find it compared to your quite possibly better-paid profession. What gives you a right to determine whether someone else should be paid for their work, and what income they deserve?

Writing at a professional level requires significant skills and is very hard work. Sitting in front of a computer monitor trying to churn out the latest page or two a day of a 300-page book, is very often not all joy and creative inspiration. Also remember that not all writing is fiction. You may think—quite wrongly—that writing fiction is easy and all fun, but how can you really think people are writing books on making money in the stock market, computer books, and nonfiction on countless other subjects, just for fun and no money?

Writing is just like any other profession. You sit down and do it day after day. Some days it works pretty well and some days it’s like, why on earth am I doing this?

As with any other profession, the answer is, you get paid even for all the work you do on the days when it’s not fun.

“What gives you a right to determine whether someone else should be paid for their work, and what income they deserve?”

Frances: I was merely disagreeing about terminology, not how much it should pay and certainly not the value of the work.

The confusing of the difference between, ‘writer’ as an individual And ‘writer’ as in a position held in a professional field if combined with greed and moral panic makes it possible to portray the appropriation of individual writers rights as both, a much needed adaption to a threat (that is really a phantom ) and a benefit to ‘writers’.

John and Aislinn,

I don’t think the professional title is what makes the general public believe all this work is amateur, and thereby of no economic value. I think on the contrary they perceive that getting it free is of economic value to themselves (at least potentially, they can decide whether it really is after they get it), and they come up with endless justifications to support their position. Google will enable everyone to become a guilt-free, labor-free pirate.

Sorry to rant at you; I spend a lot of time trying to explain these things to the average amateur pirate.

I will say, by the way, that a few older works of the “orphan” type can turn out to make a lot of money. One example is Beryl Markham’s memoir West with the Night. She was the one of the first people to fly solo across the Atlantic—but that’s not what put her memoir back in print. She knew the writer Isak Dineson/Karen Blixen in Kenya; in fact she stole Karen Blixen’s boyfriend, who taught Beryl to fly. Blixen’s memoir Out of Africa experienced a huge, profitable revival, including a movie. Publishers therefore cast around for other memoirs from the colonial Kenya crowd, which resulted in some reprintings, and another film called (I think) White Nights. A small press reprinted West with the Night and it became a bestseller, decades after its first publication.

Another example of a writer whose work took years to “take off” is J R R Tolkien. When The Lord of the Rings became a blockbuster, adult fantasy had been nonexistent as a commercial genre. Publishers therefore revived every old fantasy for adults they could get their hands on, including Mervyn Peake’s splendid Gormenghast trilogy, which was still under copyright, as well as the works of a number of Victorian writers such as William Morris. Tolkien’s success sparked the revival of a whole genre, which is still highly active and commercially profitable, and has produced many fine books. Far fewer writers would be creating adult fantasy if the revival of Tolkien’s work hadn’t proved there was money in it.

While many “orphan works” may deserve to languish, some turn out to have significant financial value when the market is more ripe for them. Their creators deserve the resulting financial rewards. It’s unfair to tell them that if their book doesn’t make enough money within a short time frame, tough for them, because now other people should get all the financial rewards for the creator’s work.


Fran, I agree in with what you have said in your previous comments. I think your defence of copyright is absolutely spot on.

But with regard to your last comment I’d like to just note that it is dangerous to refer to a book that was simply out of print for a long time as a ‘work of the “orphan” type’. Most out-of-print books of any interest to anyone have traceable copyright-owners. The Markham book was a book of this kind.

Conflating ‘orphan works’ and ‘out of print books’ is a habit that is being encouraged by those people who want to pretend, for their own purposes, that all out of print books are abandoned properties whose owners cannot be traced. We need to watch that we don’t yield ground on this, even in a manner of speech.

As for The Lord of the Rings: I believe I am right in saying that since its first publication the book has never been out of print, at any rate in the UK. And if it had been, as the work of a well-known Oxford professor, it would not have become an ‘orphan book’, of untraceable ownership. It is, of course, a classic case of a ‘slow starter’ that became a publishing phenomenon, and there are many lessons to be learned from its publishing history.

Prof. Grimmelmann, I agree that if we give up on Congress when it comes to copyright law, we’re throwing up our hands on this democracy. No way will I do it!

The GBS has done us one favor: it’s upgraded Capitol Hill discussions of copyright law from “eyes glaze over” to “convince me.”

Historically, copyright bills make it to the leadership’s “must pass” list only when there is an uproar, or when a mighty corporation is pressing for changes. (Disney pushed hard for the last major copyright revisions.) We’re two for two.

I agree with Ms Grimble that the “orphan works issue” is being hyped because it proved a useful PR tool. However, the Copyright Office staff believed there was enough need for revision that they were behind two recent attempts at passing legislation, including a near miss in the last Congress. The House passed a bill but the Senate failed to act.

It’s generally Congressional staff members who write bills, consult with various interested parties, then revise until a workable, passable piece of legislation emerges. Of course Senators and House members instruct the professional staff and ultimately vote, but the degree of instruction varies with each member’s interest, expertise and time. The staffers who worked hardest to get the last orphan works bill through the House were sick at heart when it died. Given the two recent, good runs at such legislation, plus indications of Senate disinterest, it likely would have been years before copyright revision got serious attention from Congress again.

The GBS has changed that. I’ve asked House and Senate committee staff whether they, and their bosses, would be up for another shot. I’ve heard “yes,” and also “but not until this is decided.” (Or perhaps, on appeal.)

A conflux of GBS publicity, lobbying and staff willingness to bear the freight would give us the best chance at meaningful copyright reform, including attention to “fair use,” that we’ve had in decades. Congress is a reactive body, but once it gets rolling, it is quite good at debating the “while-you’re-at-its.”

So, put on your walking shoes after Judge Chin rules, folks! Get yourself to Capitol Hill. Yes, corporations exert a powerful force. But ordinary folks who know their stuff are heard, too, and thank God for it!

To both Gillian and Frances - It is exactly the ‘orphan works’ that are of most interest to the copyright collection societies. Many of these societies pay for much of their operating costs, in some cases nearly all, by collecting royalties for people who are not members of the society. These royalties are then after some statutory period, are then used to underwrite the operation of the society for the benefit of the actual members.

Frances - I am definitely not a pirate and I know there are a lot of people out there doing dubious stuff with p2p sites. I didn’t spend 6 years trying to prevent with reasonable success, a collection society from seizing my right of control over my own intelllectual property without learning quite a bit about the collection societies as a class. Google is an interesting proposition but unlike everyone else at that table in New York, it is not in the position of moral hazard or conflict of interest.

To Salley - you are right on the money about one very important thing: for far too long copyright has involved secretive, conflicted discussions carried on behind closed doors that exclude both the public and right holders. People need to speak out and say that these secretive organisations do not represent me, the elected congress does.

As outside critics, we can debate whether courts or Congress are more competent to fix copyright. —James Grimmelmann

I believe James, that you state the problem in the above statement. As long as we consider ourselves outsiders, our democracies are in trouble, regardless of the issues before the governing bodies or the courts.
Douglas Fevens, Halifax, Nova Scotia, The University of Wisconsin, Google, & Me


Much of the time we are placed in the position of outsider because we don’t know what’s happening until it is a done deed. It is hard to object to something if you can’t see it happening.

The professional writers that we know of had, until we raised GBS with them, heard nothing about GBS and its implications at all.

Speaking from experience, if the move is seen and objections are raised, then there are a couple of tactics that the copyright industry advocates use to confuse and fudge.

The first is the’Us and Them’ tactic as in the Good copyright industry protecting ‘our’ poor helpless creatives against the threats of Bad commercial exploiters, which leads to insinuations of ‘if your not with us you must be on the side of the bad guys.’

Or if that did not wash, another tactic came into play which got a lot of use by the copyright industry field in Australia: You (creative) are not “typical”, WE (the copyright industry advocates) are typical and they then proceeded to admonish us with, “You will just have to get used to it”.

And best of all: You (creative) just want the right for yourself; “you selfish bastard”, “its ours”.

I am only stating my opinion that the people who live in democracies consider themselves outsiders to their governments (legislatures and courts)regardless of the issues.

[The University of Wisconsin, Google, & Me]


John: I’m not calling you a pirate! We are in agreement about everything so far, as far as I can tell.

Gillian: I try to be precise in my language but I will work harder at it because you are correct, even accidental conflation of “out of print” and “expired copyright” is very dangerous.

As for Tolkien, what I was trying to point out is that a book that does not succeed commercially fast—as some copyright so-called reformers insist it must to succeed at all—can in fact succeed years after first publication if there is then a better climate for selling it. Tolkien’s works are good examples of some which, even though not “lost” (I never said they were) succeeded spectacularly when given a rather long time to do so. Everyone knows who Tolkien is, which is why I used that example. Copyright “reformers” insist all profits from such a revival should go to third-party exploiters. I want them to go to the creators of the works and their heirs. There are works by authors more obscure than Tolkien that deserve revival, and whose copyright owners should not lose their rights just because they are a bit harder to trace than Tolkien.

So we are in agreement. And by the way, I seriously admire you. Your intellect and dedication are formidable.

Sally: The recent Orphan Works Acts have partly been financially pushed by Google. And as I mentioned, the text of the last proposed Orphan Works Act was horrifying. For one thing, it blithely claimed that images can be entered into a database and traced by image recognition. There is no such database. Image recognition is not technically good enough to create it, and from what I know, image recognition is never likely to be technically good enough to create it. Ever. One photo of “woods in autumn with maple trees,” “the Statue of Liberty at dawn,” or “young red-haired woman in T-shirt and jeans sitting on park bench near tree,” is going to be “image recognized” like several thousand others with the same subject in the database. The database can’t sort out which photo of the Statue of Liberty that someone found on the net and wants to use in their ad, is yours. As for abstract art …

The database in that proposed Act was the photo/drawing/visual image equivalent of the Book Registry. The Act did not say who was going to create this database. But I would not have been surprised, if the Act passed, that Google would then have submitted proposals to be paid to create and maintain the database.

Why, exactly, do you think copyright needs reforming? Any work not in the public domain is by definition post-1923, therefore pretty recent and in most cases, printed in commercial quantities. Do you think all those books in libraries and used bookstores will suddenly vanish, or become unavailable to the public, just because third parties who want to profit from them (not just Google but other large corporations) have declared a copyright “crisis”?

For myself, if my own government will not support my right to earn my living, I’m seriously thinking about moving elsewhere. If there is any nation beyond the long reach of Google and corporations with similar goals.


Also, Sally:

The corporate members of the Open Book Alliance are just as dangerous as Google. They want to do exactly the same thing: Seize copyrighted works without permission from the creators and profit from it. They just don’t want Google to get all the profits.

Even an altruistic desire to give away my work (and my parents’, no doubt classified as “orphan”), to the public without paying me, would destroy my power to make a living. I’m also benefiting the public with information and entertainment if they actually pay me, which is what enables me to afford to continue creating and publishing works.

Any file can be pirated. There are numerous hacks for Amazon’s Search Inside, Google Book Search, and Amazon Kindle. Re the two first, it doesn’t even take any software or technical knowledge to do “distributed downloading.” Students do a lot of it. Everyone gets a few of those “displayed free” pages, up to their download limit. They stitch together the pages and voila, an entire e-book pirated. Re Kindle, one thing people can do is eavesdrop on wireless downloads.

Which makes all those “fair use, we’ll just display a few snippets arguments” a complete shuck. Even if it’s just informational “snippets” to enrich Google’s, Microsoft’s or Yahoo’s search engine—why should I donate my work to increase their profits?

Public good my fanny.

And for you non-US citizens: This database, if assented to by the US Government, could of course not have told unattributed images under US copyright apart from unattributed images copyrighted in other countries. All would have been entered.