Michael Cairns likes books, and spreadsheets. At D is for Digitize, he gave a great presentation on his numerical analysis of how many orphan books there are. Now his consultancy, Information Media Partners, is back with another very clever settlement-themed analysis, this time of the settlement’s revenue model. A Database of Riches works through the numbers on the Institutional Subscription. By drawing on ALA numbers of various classes of libraries, by making some assumptions about how library systems will be licensed and how many will subscribe, and by making some guesses at possible prices, it produces an estimate that the Institutional Subscription could be a $260 million per year business.

That’s a whole lot of money. How much if any will filter back to Michigan, Berkeley, Wisconsin , and the other University libraries that gave Google their crown jewels to scan and make this bonanza possible?

The Universities have given Google much more than just their “crown jewels”, which in the case of the University of Wisconsin is their genealogical collection. By their actions they have told their students that Google is the place to go for information, not the University. The University of Wisconsin built their genealogical collection over many years, but will they continue to seek out genealogical works or will they leave it to Google to decide what publications are available to their students??? The University’s on-line catalogue cards (Fevens) already have a “More Information At Google Books” (Emphasis Mine) link. Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me

None of the libraries get any of the money that would be paid in subscriptions. In most cases, the libraries are actually spending money to have their books scanned. Michigan and Stanford get a free subscription from Google because of their substantial contribution, but the rest of the library partners have to purchase subscriptions (the source of this money).

Don’t worry about the libraries - they are getting exactly what they wanted when they agreed to partner with Google: namely the ability for everyone to be able to do a search in the content of the volumes in their libraries. That level of improved access made partnership worth it when all that Google was going to deliver to users was a line or two of text. The fact that the settlement to the ill-advised lawsuit allows Google and the BRR to create a product that is worth subscribing to (with 70% of that $260 million going to the rights holders) is a nice plus.

Actually, the real questions are:

What are the copyright holders getting out of this deal, and

Will Google bull ahead and sell the works of those who have not given permission, or even refused permission, to have them concluded?

Sorry, I don’t see that “the public good” and Google’s potential to make yet more more huge profits legally or morally justifies their stealing my livelihood.

Frances Grimble asks two questions:

1. What are the copyright holders getting out of this deal?

If Michael Cairns’s analysis is correct, they would be getting $182 million/year, which is $182 million more than they are getting now for these out of print books. (And of course if someone doesn’t want this money, they can opt out.)

1. Will Google bull ahead and sell the works of those who have not given permission, or even refused permission, to have them concluded?

The answer is obviously not (with the caveat that members of the settlement class have given their permission). To do so would open Google to statutory damages of up to $150,000 per work (if the works were registered or are foreign). Including unregistered US works (which are not covered by the settlement) raises the possibility of criminal copyright sanctions. No corporation would assume this risk. This is different than Google’s indexing program, which was arguably a fair use. No one thinks that selling copies of copyrighted works without the copyright owner’s permission is allowed, and I challenge you to find any statement from Google where they suggest they can.

The New Zealand experience is that publishers are keeping authors away from the negotiating table while they make deals on electronic rights with Google et al. The reference to “a new world order” being jacked up between publishers, Google, Apple and Amazon in this piece (with no mention of copyright holders) is deeply alarming.

How would one decide whether $260M is a big number or a small number for a project of this scale? Is it a lot to pay or a little?

To put the $260 million number in context, it is estimated that US publishers sold about $1.6 billion of books to libraries in 2009. Public libraries spent $934 million on print books and serials in 2007. I very much doubt that libraries would spend 16% of their acquisition budgets on the institutional subscription; one director of a major research university told me that his institution is unlikely to be interested in the institutional subscription. $50-100 million seems plausible to me.

I wrote an article on the size of the library book market in January, see http://go-to-hellman.blogspot.com/2010/01/numbers-for-libraries-and-book-market.html.

Mr Hirtle,

Google scanned an enormous number of books that are not only copyrighted, but actively in print. It is untrue that those copyright holders would all otherwise get “nothing.” Also, the amount of money spread over hundreds of thousands of books adds up to very little per copyright holder. $60 to compensate for copyright violation of each work? $15 for unlimited, perpetual use of every portion of a book declared an “insert”? It’s pathetic.
Even for out-of-print books, anyone can easily produce and sell e-editions and many authors are. They don’t need Google to do it for them.

Google assumed a considerable risk scanning all those works in the first place, so I think it likely they would, in fact, risk also selling works opted out of the Settlement. They haven’t even set up a database that clearly tells what is in print and what is not.

“Google scanned an enormous number of books that are not only copyrighted, but actively in print. It is untrue that those copyright holders would all otherwise get ‘nothing.’”

These books are not part of the institutional subscription.

“Also, the amount of money spread over hundreds of thousands of books adds up to very little per copyright holder. $60 to compensate for copyright violation of each work? $15 for unlimited, perpetual use of every portion of a book declared an “insert”? It’s pathetic.”

If you assume, as many knowledgeable critics do assume, that the rights holders are due nothing for making a copy for indexing purposes because such a purpose is not an infringement, then this would appear to be very generous - they are paying when there is no need. But once again, it has nothing to do with the institutional subscription.

“Even for out-of-print books, anyone can easily produce and sell e-editions and many authors are. They don’t need Google to do it for them.”

If they are selling them, then they would be commercially available under the settlement and would not be included. And any author can opt-out. And most of all, the institutional subscription is separate from the consumer purchase model, and hence does not compete with sales. For the vast majority of the 5 million works in the proposed database the payments that Google proposes to make are “found money.”

“Google assumed a considerable risk scanning all those works in the first place, so I think it likely they would, in fact, risk also selling works opted out of the Settlement.”

There is a world of difference between the risk associated with indexing books for search purposes (which is also likely to lead to increased sales of those books, and thus work to the benefit of authors and rights holders) and which is arguably not an infringement of copyright, and the selling of copies of works without the authority of the copyright owner, which everyone recognizes as being an infringement. To suggest that Google would engage in clearly criminal behavior without any supporting evidence borders on slander.

“They haven’t even set up a database that clearly tells what is in print and what is not.”

For an indexing project, there was no need to do that. And since the settlement has been mischaracterized and opposed, if I was Google, I would not go public with what they have done.

If you assume, as many knowledgeable critics do assume, that the rights holders are due nothing for making a copy for indexing purposes because such a purpose is not an infringement, then this would appear to be very generous - they are paying when there is no need.—Peter Hirtel

Peter is stating, as a fact, that making a copy for indexing purposes is not an infringement of copyrights, when this is only an opinion not fact. I consider Google’s digital copy of my work digital printing plates and an infringement of my copyright. “Indexing project” my ass. Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me

Mr Hirtel

Google is using these books as ‘tool of trade’ in order to to create a commercial product; an audience that has a commercial market value. This is not a fair use it is a commercial use of these books.

Mr. Hirtle,

The Google Settlement makes it clear Google intends to sell the scanned books as e-books, as print-on-demand books, as parts of institutional library subscriptions and as “inserts.” If Google believed that copyright holders of these out-of-print works would eagerly opt into a Google book-selling program as “found money,” why did Google not set up the program first and invite everyone to join voluntarily, instead of scanning the works and then trying to push a Settlement through (which I sincerely hope is rejected by the court)? Google is setting up a voluntary e-books program with publishers now; why did they not set it up to begin with and urge copyright holders to join, instead of scanning millions of books without permission? Google has no legal or moral right to seize works for profit and then assert it is generous by giving “found money” to the copyright holders. I personally also believe that libraries offering unprotected and printable e-books to patrons will seriously cut into print sales due to patron piracy and distribution.

I don’t believe for a New York minute that the only purpose in the Libary scanning program was “indexing” works just so they could be found by readers who want to pay for them. Especially since the Settlement gives Google the right to pour the scanned books into its search engine as free content, without paying the copyright holders a cent for that use.

I don’t trust the opt-out provisions of a company that scanned millions of books first and negotiated payment afterward. Terms that were negotiated with many copyright holders who were not only not part of the original suit, Google claims both that they could not be found before scanning but somehow, they can be found after scanning. The Settlement also contains a clause saying the parties who brought suit are not bound by the terms of the Settlement—just copyright holders who were not parties to it.

I also don’t trust the opt-out provisions of a company whose database is such a total mess that according to one letter submitted to the court, works such as The Da Vinci Code and Harry Potter books were declared both scanned and “not commercially available” in the database. And, the Settlement also contains a clause saying that Google does not in fact agree not to sell the works of those who have opted out of the Settlement entirely. And, those who opted into the Settlement but opted out specific in-print titles have lost their right to sue if Google goes ahead and sells those in-print books anyway.

How, may I ask, can you personally tell for sure whether the Google e-books soon to be launched were scanned as part of the massive Library scanning project or not?

Peter Hirtle said: “If they are selling them, then they would be commercially available under the settlement and would not be included.”

According to my reading of the settlement, self-published books do -not- count as being commercially available. There must be a publishing entity separate from the author.

Regarding “commercial availability,” Google is required to check a wide range of third-party and Internet resources. If a self-published book is included in Books in Print or in a bookseller’s database, it would count as commercially available. Most of all, any author can report to Google that her book is commercially available. If that should occur, “such Books promptly shall be classified as Commercially Available.” One would assume that an author who is selling works herself and is not interested in the extra revenue that would be generated from the institutional subscription would take the time to let Google know.

Here is the relevant text from the amended settlement:

(d) Commercial Availability, In Print/Out of Print and Public Domain Determination.

(i) Basis for Determination. Google shall determine whether a Book is Commercially Available or not Commercially Available based on its analysis of multiple third-party databases as well as its analysis of the Book’s retail availability based on information that is publicly available to it on the Internet. Google will use third-party databases from a range of United States, Canadian, United Kingdom, and Australian sources that can be obtained on fair and commercially reasonable terms. When analyzing the third-party databases, Google will use the publishing status, product availability and/or availability codes to determine whether or not the particular database being used considers that Book to be Commercially Available. When analyzing information that is publicly available to it on the Internet, Google will determine retail availability by consulting various sources to determine whether the Book is Commercially Available. Each of these sources may contain errors; Google, however, shall use commercially reasonable efforts to determine whether a Book is Commercially Available or is not Commercially Available using a methodology reasonably agreed to by Google and the Registry that is designed to minimize the overall error rate. All Books for which Google does not have information from the sources identified above will be determined to be not Commercially Available. Rightsholders may provide information directly to Google that a Book is Commercially Available when they submit their Claim Forms, through the Books Database or, at any time after such submission, to Google or the Registry. When Google receives such information from Rightsholders or the Registry or Rightsholders otherwise assert that their Books are Commercially Available, such Books promptly shall be classified as Commercially Available. If Google reasonably believes that such information or assertion is inaccurate, then Google may challenge the classification pursuant to Article IX (Dispute Resolution).

Dear Mr. Hirtle:

Then why did Google not check coyright records and industry databases before scanning the books? Why scan millions of books, craft a Settlement automatically opting in everyone who has not explicitly opted out, give poor notification to copyright holders, then put all the burden of “opting out” on them? Also, for copyright holders who opt into the Settlement but opt out specific in-print titles, the Settlement removes their right to sue if Google screws up.

I opted out of the Settlement entirely, and if Google distributes my books anyway, I am fully resolved to join the next class action suit against them, pronto, and pursue them as aggressively as I can. All I can do at this point is sincerely hope that the judge, whoever that may eventually be, rejects the Settlement.

Mr Hirtle

These are Richard Epstein’s words on the settlement as a legal contract: “Any mortal who reads the Google settlement, as I have, will be defeated by its obscurity and complexity. “

You want us all to ‘just trust’ that this settlement contract, this pile of doublespeak, made between a handfull of bewildered unrepresentative authors and Google will, somehow protect us all and make everybody feel high?

This mob could not lie strait in a coffin

I don’t think that I am going to be able to convince any of the passionate GBS critics of my position that the original Google library program would be of great social benefit at no cost to authors (and actually a benefit, since it would make works more widely known). I don’t believe that I can convince these same critics of my belief that the amended book settlement represents a good, but not perfect, approach to making the full text of millions of books available to the public while at the same time providing benefits (royalties where none currently exist) and protections (opt-out protections for authors, either from the settlement or from the commercial database). Those authors, like Ms. Grimble, who don’t want to be part of the settlement can decline to be part of the class and retain their ability to negotiate directly with Google as well as their right to sue for copyright infringement if they want. It is an incredibly clever compromise that provides great social benefit (access to the full text) with no measurable harm. I would love to know who first proposed this solution that makes a silk purse out of the sow’s ear of the initial lawsuit: was it Google, the Author’s Guild, or the AAP?

Nevertheless, I will make a few observations, and then revert to trying just to discuss facts.

1. Opt-in for the original search index was not an option. It just doesn’t scale. Where I work has spent hundreds of dollars per title searching for authors and/or publishers, with a less than 50% success rate and those who are contacted delighted to learn that out-of-print works were now going to be made freely available. Denise Troll Covey’s analysis of searching for copyright owners cost over $200/title, and again with a low hit rate on results. No project to index millions of volumes could afford to follow an opt-in approach to indexing - especially when it is likely not required by US copyright law.
2. I know of no statement (or even hint) from Google that it thought it could make available to users the full-text of works without the permission of the copyright owner (which they are securing through direct negotiations and through the settlement). The only group who I have ever heard say that they can deliver full-text of pre-scanned copyrighted books to users without the permission of the copyright owner is the Open Book Alliance (ironically one of the most vocal critics of the Google Book Settlement).
3. The settlement does give Google permission to market certain versions of out-of-print books (but not downloadable e-books), with the vast majority of the revenues going to the rights holders. Any rights holder is free to opt-out if they believe they can get a better deal elsewhere. What is there to complain about?
4. Whether some of the e-books that are going to be sold through Google Editions came from scans done for the indexing project is immaterial. Already some publishers let Google use library scans for the limited preview program, either because I assume they are not interested in providing their own scans or, more likely, don’t have copies of the books themselves. All that matters is that rights holder has authorized inclusion of the title in the Google Editions project.
5. I would encourage everyone to read closely the analysis done by James Grimmelmann’s students listing the objections and responses to the amended settlement. By and large, the plaintiffs and Google did a good job of addressing the concerns expressed to the court. The settlement can still be made better, but it is the only way that we are going to get digital full-text access to the 5 or 6 million titles that are likely to be part of the database.

Mr. Hirtle —

My understanding is that for a book to be deemed commercially available under the settlement, it must first be determinied to be “in print.” According to the ASA’s Appendix A: Author-Publisher Procedures, a book must have an author-publisher contract to be considered in print, thus a self-published book without a publisher contract can not be in print and, as a result, can not be commercially available.

You may be correct that a rightsholder may simply be able to claim that her book is commercially available, but Appendix A is quite explicit about what books are considered in print. This goes to the heart of my primary problem with the settlement, which is that it is so complicated that it’s difficult for authors to fully understand.

Mr. Hirtle:

I have worked in publishing, as an editor and writter, for over 25 years. I have been a self-published author for over 15 years. I have also read the proposed Settlement and many discussions on it. I am not a lawyer, but I am not entirely unfamiliar with the issues.

1. I do not want any books I have written to be issued in e-form by any party at any time. From my long-term observation of my customers, I would lose a large portion of my revenues to piracy that way. E-form includes material posted on the net as free search content, e-books sold to libraries as parts of subscriptions, and individual e-books sold to anyone. Thus, Google scanning my books and asserting they will issue them in e-form to anyone is completely unacceptable. I believe that my writing and publishing books is for the social good. However, if I cannot make back my costs, pay my consultants, etc., be paid fairly for my large amount of work and time, and earn a living, I cannot write or publish books for the social good or for any other reason. In other words, I cannot support a “social good” that destroys my livelihood. I will also observe that every book I have written is in print (except for one that went into a second edition, which is in print) and available from many vendors. The public having to pay fairly for my work does not render it “unavailable” to them.

2. Google has made statements for years about its plan to have a “universal library”—I call it the “monopoly bookstore.”

3. There is a clause in the proposed Settlement saying that Google will not guarantee not to publish the works of those who have opted out—something various foreign publishers are also complaining vigorously about. Google’s database is a complete mess—see the letter to the court from author Diana Kimpton, who verified that bestsellers such as The Da Vinci Code and Harry Potter books are entered as both scanned and not commercially available. Google has demonstrated itself as entirely willing to trample the rights of smaller entities. The Settlement removes all rights of those who opted in to sue if Google sells their in-print works and destroys the market for them. Thus, I have zero faith that Google will honor opt-outs made either inside or outside the proposed Settlement.

4. One concern is that Google Editions will contain books that were, in fact, opted out of the Settlement.

5. Lack of digital access does not mean books are “unavailable.” What many people want are not e-books but free books. However, the model of writers, editors, graphic artists, illustrators, translators, indexers, marketers, accountants, and all the other people needed to produce a book laboring without fair payment for the “good” of a public who is better paid than they are—and which public can’t even be bothered to interlibrary loan a print book—is not sustainable. I, for one, refuse to be exploited.

6. The motivation of the libraries involved seems to be mostly financial. Those who lent books to Google—including, for many partners, books the libraries knew to be under copyright—did so because Google promised them free scans of those books, plus scans from other partner libraries of books they did not own, amounting to a massive free acquisitions program, plus in some cases free institutional subscriptions. Other libraries are complaining because they think Google will charge them too much for the institutional subscriptions. The libraries don’t seem to care about the rights of authors and publishers. I, personally, will no longer support libraries in any way with contributions or votes to supply funding.

Mr Hirtle - in the interests of transparency and accountability, and to help the readers of this blog better understand your support for GBS, would you please make public Cornell University Library’s original agreement with Google, and also any amendments to the original agreement and any additional agreements made with Google subsequently. Thank you. Lynley Hood

Mr Hirtle:

I will also add, there is, in fact, absolutely no requirement for out-of-print works to be reprinted. If you can’t find the copyright holder, don’t reprint the work. Wait for the copyright term to expire. It is not the right of private corporations, or of libraries, to seize copyrights before they expire. Besides, Google is an extremely rich corporation, and, one would assume, expert in searching for information. I can’t think of any entity better qualified to both search for copyright holders and to pay them fairly when found.

The Settlement is all about Google profiting from millions of books published after 1923 that frankly, have not interested publishers enough to locate copyright holders and offer publication terms, have not interested the public enough to interlibrary loan them often, and have been gathering dust in used bookstores where many are available in legally legitimate editions for affordable sums. Rather than a crying need to benefit “the public,” what I see is Google’s desire to massively profit from search engine enrichment, ad sales, and in other ways of using the scanned files, and libraries’ desire for free acquisitions of such books.

Mr Hirtle

It is easy to be nonchalant about the danger of collateral damage to the economic situations of individuals, if you are not personally in the line of fire.

It also is easy for one to overestimate the benefit to ‘the public’ of a proposal that benefits one, or even just makes life that bit easier for one.

Every day billions of people create strings of words , so as to earn a living. It is impossible to clearly define who is not an ‘author’ and thus it is impossible to clearly define what might not be possibly covered by the settlement.

The web is ultimately part of the real world; not nearly as autonomous: (lawless) as it thinks . If the scheme is even remotely possible. It must be opt-in because the alternative would be lawless arbitrary anarchy for the whole of society.

If opt-in is unworkable then no scheme is no great loss.

In my personal capacity (and not as an employee of a Google partner library), I can speak to library motivations for their participation in the Google Books project. I can confidently assert that Frances Grimble is flat-out wrong in her interpretation of library motives. Others may wish to highlight the other areas in which she is mistaken.

She wrote: “The motivation of the libraries involved seems to be mostly financial.”

If you look at the statements from the libraries that participated, the first goal cited by all is the desire to increase access to existing collections. If you look at the statements included on the Google Library Partners page, not one library mentions financial benefit as a motivation for joining. As I wrote earlier, all have made their own financial contributions as part of participation. Libraries always hope that improvements may lead to lower costs down the road, but it is a gross overstatement to say that library motivation was primarily financial.

“Those who lent books to Google—including, for many partners, books the libraries knew to be under copyright—did so because Google promised them free scans of those books, plus scans from other partner libraries of books they did not own, amounting to a massive free acquisitions program, plus in some cases free institutional subscriptions.”

How many things are wrong with this statement? First, there is the canard about in-copyright books. That is what libraries do: loan in-copyright books to users. Since scanning for indexing purposes is arguably not an infringement, loaning books for scanning is also not a contributory copyright infringement.

Second, there is the statement that libraries participated “because” Google promised them free scans. We have here an assumption that can’t be proved. You imply that if the libraries were not offered copies of the scans, they would not have participated in the indexing program. I am not so sure. The restrictions on the use of the supplied scans are great, which suggests to me that the libraries, as they claim, were doing this primarily to increase the discoverability of titles in their collections. There are other administrative reasons why partnership with Google would have been desirable even without the provision of scans. There is, as far as I know, no evidence to support your assertion.

Third, you refer to the provision of scans from other libraries. Partner libraries can only get scans of public domain books that they do not own. (See, for example, Section 4.10 of Virginia’s amended agreement with Google.) Google is also making these scans available for free, and they are the source of many (if not most) of the scans in the Open Content Alliance’s collection. Offering to the libraries what is freely available to anyone else is not much of a deal - and not much of an acquisitions program.

Fourth, while Google did offer back to a library copies of the scans of books made in that library, the restrictions on what libraries could do with those scans were severe, and are even stricter under the settlement. It would be a mistake to think that somehow libraries are going to be making these scans freely available on their computers to their users.

Fifth, you refer to free institutional subscriptions. Of course this could not have influenced Michigan’s or Stanford’s decision to participate since no one knew at the start of the program that the Author’s Guild was going to make the ill-advised decision to sue Google or that such action would lead to the Settlement. The provision of an institutional subscription would also not be much of an incentive for continuing with the program. We don’t know what the subscription is going to cost, but I dare say that it would not come close to matching Michigan’s or Stanford’s administrative, legal, and logistical expenditures on the project (based on my knowledge of what one library has spent).

“Other libraries are complaining because they think Google will charge them too much for the institutional subscriptions.”

Almost all libraries have supported the settlement, though most hope it can be improved. There is justifiable concern over whether the two goals of the settlement - maximum revenue for rights holders and broad access - are compatible. That is why Michael Cairns’s analysis, which suggests that a relatively low subscription rate can generate substantial revenues for rights holders (when they are receiving none now) is so interesting.

“The libraries don’t seem to care about the rights of authors and publishers.”

A fundamental principle of library ethics is the respect of copyright, and the library profession has a whole has been an active supporter of author rights even when, as in the Tasini case, it works to the disadvantage of libraries. If Google had come to the partner libraries and said “we want to scan in-copyright books so that we can make them freely available for downloading and pirating,” no library would have joined them. What Google proposed initially instead, as far as I could tell from the documents released at the time, is “we want to scan in-copyright books so that we can construct an index that will help users find titles that would be of interest to them. We will then include links to libraries that have the books as well as to commercial outlets that sell the works, leading to more sales for publishers and authors.” If anything, library participation in the project is a sign of the tremendous respect that libraries have for authors and publishers.

Peter if the rights of authors were so important , as you would have us believe,(“A fundamental principle of library ethics is the respect of copyright,”) to Google’s library [commercial]partners you would think they [the libraries] would make damn sure that it was “Fair use” to make copies of works for indexing and not just take Google’s word for this alleged right(“Since scanning for indexing purposes is arguably not an infringement, loaning books for scanning…”) before giving a single copyrighted book to Google for scanning. The University of Wisconsin in commercial partnership with Google digitized my book in 2008, when even the GBS does not establish that making a copy of a printed work for indexing is legal. If “A fundamental principle of library ethics is the respect of copyright”, how come the libraries, that have the opinion that Google & Company’s digitization of copyrighted works is infringement, are not more vocal in their opposition?

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

Peter Hirtle’s citation of Stanford’s motives and efforts to advance the Google Book project must be weighed against the fact that Stanford was Google’s mother and father, its spiritual, intellectual and physical incubator, and is still a major, big- dollar shareholder of Google stock.For Stanford and for Google, L’Etat, c’est Moi!

Dear Mr. Hirtle,

Of course the Google and “library partner” PR/spin is different from the motives and actions of either. You’re just providing more spin.

For example, the “partner” libraries who are supposedly so concerned about copyright continued to deliver books to Google after the Author’s Guild suit for copyright infringement was filed and are still delivering them. I agree that the suit was ill advised—but only because I suspect it was a set-up to begin with, to grant Google broad rights to use copyrighted works without locating and paying copyright holders, with the Author’s Guild gaining financially by administering the proposed Book Registry and the publishers gaining financially by the Settlement granting them copyrights and revenues not included in the publisher-author contracts for those books.

I suspect the proposed Settlement will not be approved, I sincerely hope it will not be approved, and I will take every opportunity to fight Google’s seizures of copyrighted works for any and all purposes.

Mr Hirtel

If I was to ‘borrow’ (without first asking permission) the use of a car so as to drag an advertising banner around your town and If I then returned the car at the end of the day with a payment of ten dollars left on the dashboard , would that be OK with you?

Actually, John, they’re claiming the use of the car for its entire lifetime—the rest of the copyright term.

Also note that the proposed Settlement removes the ability of all those who opted into it, plus all those who did not explicitly opt out of it, to sue the libraries for assisting Google in scanning copyrighted books. Furthermore, the Google-library partner suits I have seen also push the burden of defending suits off the libraries onto Google. Therefore, the partner libraries could violate copyright law with impunity. The libraries’ concern for copyright seems to be centered around avoiding paying for legal defenses, not around obeying the law.

If the Settlement is rejected and there is another suit, I hope that the libraries are targeted as well as Google. Google may pay their legal bills but they will still get some of the negative publicity they so richly deserve.

Sorry, I meant the Google-library partner contracts (not suits) cover the libraries’ posteriors for their assistance in copyright violation.

The GBS would provably be unlawful under the Australian constitution. The transfer of individual economic rights of control of usage without either; explicit consent by that individual or direct individual compensation, compensation that was fair to that particular individuals situation, would run a high risk of being found to be be “unjust enrichment”, by the high court.

Because the scheme severs the nexus between individual consent and the payment to the individual , it is also too tax-like to be a private copyright contract.(The GBS is intrinsically highly redistributive : tax-like)

If Australia was to have such a scheme it would have to be an government run public program and the decision as to the ‘merits of the idea would be solely a matter for elected authority to debate

It is for the reasons given above that the Australian

“Resale Royalty Right for Visual Artists Bill 2008”

•dos not apply to the first resale of artworks purchased prior to the schemes inception (2010 june 8)

•The individual right holder has a, case by case, right to refuse consent/ waive collection.

•The act is ‘stand alone’ , it is not a part of copyright law

•And the operation of the scheme is by a contractor to the Commonwealth of Australia , a contractor that will be operating under a public contract that is tough. For example - If this contractor was to fail to meet obligations re financial probity and standards re honesty , the government can replace the management .

“Since 2004 a collection of universities, including my own, began donating many of millions of dollars of their rare collections of riches to one of the wealthiest companies in the world. This certainly stands as one of the most absurd cases of corporate welfare that universities have ever been involved in.” —Siva Vaidhyanathan, Associate Professor of Media Studies and Law, University of Virginia; Author of the forthcoming book The Googlization of Everything

From the Chronicle of Higher Education, Crunching Words in Great Number

Quote from historian Richard White, The Organic Machine, 1995, p.64

“Planning is an exercise of power, and in a modern state much real power is suffused with boredom. The agents of planning usually boring; the planning process is boring; the implementation of plans is always boring. in a democracy, boredom works for bureaucracies and corporations as smell works for skunk. It keeps danger away. Power does not have to be exercised behind the scenes. It can be open. The audience is asleep. The modern world is forged amidst our inner tension.”

One of the best ways for inducing inattention and boredom is the use of complex, deliberately confusing, instrumentalist jargon. The long drawn out GBS certainly smells like a skunk.

God what a recursively definitional Typo

the last sentence of the quote should read: ” The modern world is forged amidst our inattention”