I’ve been following the Cooks Source debacle with great interest. In brief:

• Blogger posts article about history of apple pie to site about medieval cooking.
• Blogger is informed by a friend that article has appeared in Cooks Source magazine, under her name. This is first the blogger has heard of Cooks Source.
• Blogger contacts Cooks Source, is willing to let the matter go for an apology and a donation to the Columbia School of Journalism.
• Editor of Cooks Source replies, saying, among other things, “But honestly Monica, the web is considered ‘public domain’ and you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it! … We put some time into rewrites, you should compensate me!”
• Blogger blogs.
• Story is picked up by friend, then by John Scalzi, Neil Gaiman, BoingBoing, Reddit &c. &c. &c.
• Internet pores through Cooks Source Facebook page, including photos of past issues, discovers articles taken from Food Network, Martha Stewart, MyRecipes, &c. &c. &c.
• Two Minutes’ Hate.

Cooks Source has not responded since the firestorm began, although the fake Twitter accounts have been fairly amusing.

When I first saw the story, I agreed with Lisa Gold: open-and-shut copyright infringement but not, regrettably, an infringement likely to be worth pursuing at law. Because the original article was not registered with the Copyright Office before Cooks Source republished it without permission, the really powerful remedies—statutory damages and attorneys’ fees—are unavailable, making a lawsuit unlikely to pay for itself. The revelation of the widespread infringement, however, changes matters rather substantially—I would guess that at least one of the major media corporations whose articles were also copied would have registered some of them. For them, going after Cooks Source (assuming there is anything left of the magazine other than a scorched hole in the ground after the weekend) would be like swatting a fly.

This isn’t just about law, though. The article as published in Cooks Source was credited, so this isn’t about plagiarism, or about stepping on one’s moral rights to attribution or authorial integrity. I don’t even think it’s just a matter of not asking first (although that is certainly part of it). Instead, it’s the palpable condescension in the editor’s email—YOU should be thanking US—that touches a raw nerve. That’s where the anger comes from; the editor’s ignorance of copyright law just provides the outlet for expressing it.

I see the story as confirmation of my basic claim in The Ethical Visions of Copyright Law: people want and expect a basic attitude of respectful reciprocity between authors and audiences. What is at stake is not just the author’s ability to make a living or her right to control her work, but the respect owed her as a creatively engaged human being. Copying in a spirit of appreciation is one thing; copying in a spirit of condescension is quite another.

“… We put some time into rewrites, you should compensate me!”

Spoken like a true pirate! My comment to the article:

—“The pirate king’s argument: The country was experiencing a piano boom at the time, so a lot more families needed sheet music. But the major publishers catered to clientele who could pay 18 pence per song, while Willetts charged just two pence. Because the rightful owners had no hope of selling to the new audiences at those prices, Willetts testified, he did no harm to their businesses with his efforts?while bringing high culture and educational benefits to all. “Indeed, piracy might even increase the sales of the legitimate publishers, since it amounted to free advertising,” Johns writes, summarizing the pirate’s logic.—

Sounds like the same arguments Google & Company, and America are making today in their defense of their pirating. —“Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost.” (United States of America, Statement of Interest, Page 4)

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

Looks like a Society for Creative Anachronism oriented site. I don’t publish books for their time period, which is a good thing, because I’ve had numerous very nasty debates with their members on costuming e-lists regarding piracy in general. Arguments usually sparked by someone publicly offering scans or photocopies of a copyrighted work to all members of the e-list, they get extensively petted by the e-list for “sharing” and “being generous.” And then I point out that actually, it’s not their own work they are “sharing.”

Although some SCA members respect copyright, in general they have a strong pro-piracy attitude. I’ve heard the “people whose work we copy should thank us for helping them with their marketing” and “imitation is the sincerest form of flattery,” arguments many, many times, as well as a lot of very childish remarks, on the order of “we’re going to copy anyway and you can’t stop us, ha ha ha.” When I go into all the ethical and financial arguments, their own all end up with “No one will catch us, and if they do they won’t bother to do anything because it will cost them too much to sue us.”

And I have, many times, pointed out that authors put a great deal of time into creating their works, publishers put a great deal of money into them, authors deserve respect and control over the use of their works, etc.

Most people who assert that “information should be free” seem to hate or at least resent authors and publishers. People are willing to pay for what they respect.

I should mention that actually, having looked again, the article appears to have been plagiarized FROM the SCA-oriented website in this instance. As for Cooks Source, I hope someone DOES sue them.

Frances The web has a very hall of mirrors quality, caches of caches mirrored in mirrors. Do you know the story By Calvino called ‘The Spiral’ that is the last story of his book “Cosmi Comics”?

I made some ‘corrections’ to the wiki page dealing with royaltys- sub-section artist resale. By chance I recently came across a number of examples of these same changes mirrored (I expect automatically)in other sites - for example a real estate site in Chicargo.

“… copying in a spirit of condescension is quite another.”

I have long given up any hope of getting an apology from Google for the digitization of my book— they operate by cut-throat corporate rules. But the University of Wisconsin is supposed to emulate the human standards of higher ideals, not act like a school yard bully. (My letter to the editor)

“The Court‘s Eleventh Amendment jurisprudence seemingly emboldened the University of Michigan and other state universities (e.g., the Universities of California, Texas and Wisconsin) to make deals with Google to scan millions of books from their vast collections, including in-copyright books.” — Pamela Samuelson; Part I A. State University Immunity from Copyright Damages Contributed to GBS; The Google Book Settlement as Copyright Reform

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

Douglas,

While I agree entirely that massive corporate piracy should be prevented and punished if it occurs anyway, I think it is a big mistake to overlook the cumulative effect of piracy by individuals. If nothing else, I repeatedly hear amateur pirates praising Google’s actions because they believe Google scanned all those books to give them away free. Meaning, they are also likely to support any motion Google tries to push through Congress.

Douglas Fevens:

It seems peculiar to me that you can raise the hue and cry for “intellectual honesty” (while attributing the lack of it to others), yet you are unable to address (or even consider, perhaps?) any arguments I raise which contradict your world view.

By the way, since I, like the vast majority of the world, missed out on the several months during which your book appeared on Google Books, you’ll have to give us some more information about what happened so we can all judge better to what extent Google has wronged you. How exactly did your book appear there? Was the full text of the book exposed for viewing? Were some pages exposed but others concealed? Or was it only displayed using “snippet view”?

Frances

Trying to police non-commercial , freely entered into transactions between individuals is as impossible as it is undesirable . The problem is more one of thoughtlessness, lack of manners and at times open rudeness/malice). The education system that we constructed over the past forty years has a lot to answer to: “they live in a kind of sub mind” and “exercise all skills at a secondary level”

The funny thing about the web is; Its very wide in a very ‘point land’ sort of way.

Frances Grimble:

While I agree entirely that massive corporate piracy should be prevented and punished if it occurs anyway, I think it is a big mistake to overlook the cumulative effect of piracy by individuals. If nothing else, I repeatedly hear amateur pirates praising Google’s actions because they believe Google scanned all those books to give them away free. Meaning, they are also likely to support any motion Google tries to push through Congress.

Why wouldn’t one praise Google for helping libraries fulfill one of their primary functions, which is the preservation of the books in their collection (as was explained by the paper on Section 108 which Mr. Fevens found)? Why wouldn’t one assume that Google is just dying to have all that searchable information enter the public domain so that they can put it up (yes, even for free!) inside Google Books and get more hits (that’s pretty obvious, since they tried to rush things a bit via cutting a deal with the Author’s Guild, which is why most of us are here on this website). And why shouldn’t everyone have the freedom of supporting their personal views on copyright reform in Congress?

What really disappoints me, however, is that Google actually isn’t doing a good job giving the public access to works which seem to me to be in the public domain. For example, The National Garment Cutter and The Delineator. These works were published in 1886 and 1891, yet we don’t even get a snippet view, never mind the full access I would expect Google should give a public domain work. I got the impression that these are source materials for your book “Bustle Fashions 1885–1887” while perusing the web page about it. I’m curious. When you researched the copyright status of these works, as I presume you did, did you come to the conclusion that they are in the public domain, or did you have to license their use (which would explain to me why Google so restricts access)?

There are three parties to all current ‘hot’ copyright fights; The Consumer, The Producer And The Licensing industry.

The Licensing industry is equally hostile to both fair use and copyright as an individual right. The reason for their hostility is the simplest of reasons, Self-interest; For the licensing Industry there is for no money in either fair use or in free individual contracts.

For Licensing industry the settlement must involve payments , and it must not be opt-in; It must not be a matter of free individual choice . This is the reason why GBS has gone round in circles for years and years.

Ron

I do agree that easy access to” The National Garment Cutter” and “The Delineator” is a pressing national interest issue and would make everybody feel high. While we are at it, how about easier access to the riveting reading to be had in The Dunny on the Wolds Pig Breeders and Pig Fertilizer Gazette of 1795? Its one of those texts that just ‘sticks’.

You are a very sophisticated fellow.

Ron,

I assume you know perfectly well that it is legal for Google to publish works that are already in the public domain, and that the class action suit is about the millions of works NOT already in the public domain that were scanned without the permission of the copyright holders. Libraries do not have the legal right to publish works without permission—which is what they’d be doing if they created e-versions and distributed them without the permission of the copyright holders. That is not merely “preserving” the works.

I also assume you know that it is legal for someone who scans a public-domain work to charge for it or not, as they please. And that it is legal for them to, as I have done, create derivative works that contain the fruits of original research, writing, organizing in an anthology, etc.

Finally, I agree that it is legal for a US citizen to express his or her political views on copyright and any other issue. I just get tired of battling entitlement arguments where people scream they should get the work of all writers, publishers, composers, artists, etc., without paying for it—while expecting to earn comfortable livings for all their own work. I can’t help seeing this as childish and selfish.

John,

I don’t think the issue is whether the work is of widespread interest, but whether its copyright was violated. I put considerable original effort into the book Ron is referring to (Bustle Fashions 1885-1887). As well as doing historical research and writing new technical instructions, I extensively researched numerous issues of publications. Then I juxtaposed clothing patterns from one set of sources with illustrations and instructions from others, to enable readers to use one pattern to create a variety of additional styles and garments via what are now called flat pattern alteration techniques. I also researched technical information from numerous publications not listed in my marketing copy and quoted that as needed. Work definitely covered by US copyright.

Google is under a moral as well as a legal obligation to obey US and international copyright laws. They are not under any kind obligation (except as specified in their contracts with the libraries) to distribute all public domain works free. Any more than is Dover Publications, or any other publisher.

Ron,

By the way, if you are assuming I have ever used Google Books (or any source of scans) as a source for any of mine, the answer is no. I buy printed, bound originals on the used book market.

Frances-

Our Ron seems to be “all smoke and no fire”. I do not doubt at all that you would be meticulous about copyright.

In Australia the only justification for compulsory licenses is overriding clear net public benefit and need. Easy access to orphan works on subjects like ‘Organisation of Byzantine Army Themes at the time of Nicephorus Porphyrogenitus the first’ is not a overriding public interest/net benefit. (I was a rather weird child , it is a subject that I once avidly read)

The ease and convenience of “certain would be commercial user-rights groups” is not an overiding public interest.

John,

I agree that Google has scanned a great many public-domain works (published in the US before 1923) of interest only to a handful of researchers, and also, a great many second-rate novels where it’s easy to see why they were not kept in print. I don’t care. Google is welcome to scan as many GENUINELY public-domain works as they want, and to charge for the scans if and as they please. I don’t have to buy or read any works of no interest to me.

My concern is the way Google has trampled on the rights of copyright holders of works still under copyright, in many cases actively in print, so even Google can have no illusion that they are so-called orphans.

Fran

Frances

These ‘orphans’ are a great excuse for a crock of piggy merde.

The ‘group’ suing Google is every bit as casual about “the rights of copyright holders” as Google. At least Google dos not pretend to be the right-holders friend.

John,

Re the so-called orphans, absolutely. They are just an excuse for scanning millions of copyrighted works without bothering to locate the copyright holders and ask permission.

And yes, as with the genuinely public domain works, there are good reasons why some of the so-called orphan works are not only out of print, but not in great demand at either the used book stores or libraries where many of them are, in fact, quite available for legitimate purchase or loan without any intervention by Google.

From Intellectual Property Watch, 5 November 2010:

Lessig Calls For WIPO To Lead Overhaul Of Copyright System

Copyright Online: What has Changed?

Reading a book in physical space is unregulated, said Lessig: reading, lending, or reselling a book is not “fair use” – it is free use. They are unregulated acts.

[ My italics ]

James is there a type of “fair use” that is not a “free use”? What is the difference in US law between “fair” and “unregulated”? Dos this involve ‘conflicts’ between common law systems and their conception of rights as essentially a right to be unregulated and the conception of rights under ‘bill of rights systems’ as rights defined by law?

Under U.S. law, the owner of copyright in a work has the exclusive right to reproduce the work, adapt the work, distribute the work to the public, perform the work publicly, and display the work publicly. “Read” is not on that list.

Thus, if I make a reproduction of a book, it may or may not be copyright infringement, depending on whether my reproduction is a fair use, which in turn depends on the circumstances.

In contrast, if I read a book, it will never be copyright infringement. Reading is simply not an act regulated by copyright law in the same way that reproduction is. This is what Lessig means by “free use.”

I’m failing to see how the existence of copyright as it stands (if enforced) could ever “stop people creating.” Copyright holders are already free to grant any permissions they want to anyone they want. If they somehow believe not being paid for certain uses, or any uses, will benefit them, then they can already give those permissions.

I also fail to see how piracy represents “kids’ [or anyone’s] creativity.”

Fact is, we’ve got an increasing number of books published every year, including an explosion in self-publishing and micropublishing. There’s not exactly a shortage of books—or music, or movies—even though the vast majority are created by people carefully obeying copyright law.

I will also add that people can already create derivative works from other peoples’ copyrighted works—as long as they get legal permission. Plenty of anthologies, screenplays, translations, etc., are produced under the current copyright system.

Actually ‘Nicephorus the first’ might not have been born in the purple. Quite a few of Byzantium’s emperors got power through illegitimate means.

James

which in turn depends on the circumstances.

So fair use might, unlike unregulated use, require permission?

John Walker:

So fair use might, unlike unregulated use, require permission?

Use with permission is never an infringement. Unregulated uses never require permission. Fair use only becomes an issue if the owner has not granted permission, it can apply, depending on the other circumstances, even where permission has been explicitly refused.

If the proposal is to divide a “free permissions” issue between “amateurs” and “professionals,” it’s a lost cause. Even most people in any given artistic field don’t agree on definitions. Almost everyone has some other job/profession in addition, comparatively few people actually make a living from any form of art, whether a work is good is often a matter of taste, few people win prestigious awards, and everyone goes through a period (usually a long one) of producing lousy work before they produce good and/or sellable work. But they may publish the lousy work on their blogs or in other people’s ‘zines anyway. Meanwhile, they may have no firm intentions of “going pro” during this apprenticeship period.

Get a bunch of people who want to one-up each other on an e-list for writers (or people pursuing any other art form) and watch the fur fly, as everybody argues “I’m legit, you’re not” and advances different reasons. And the artists’ definition of “being a pro means you always do your very best work and still strive to improve” is a great personal philosophy, but that’s all it is. It doesn’t even guarantee that your work will be any good.

I sure wouldn’t leave a categorization of amateur versus professional up to the government.

I think I sort of get the drift.

Fair use only becomes an issue if the owner has not granted permission, it can apply, depending on the other circumstances, even where permission has been explicitly refused.

In same the article Lessig went on to state:

”..online, every use is a copy. This is “not about a generation that can’t respect the rules, it’s a problem in the design of the system……” [ Design is not a job for courts]

For all of human history, Lessig said, human culture was “read-write.” That is, people participated in the creation and recreation of culture. The 20th century has been unique in human culture, because the development of technologies of broadcasting and vinyl records produced an environment which enabled “efficient consumption, but inefficient amateur production.” This created a world that was “read only,” a “passive, consuming culture.” The internet has brought back that read-write environment.”

For my profession, Culture never stopped being “read/write”. I make and sell unique copies, ‘Title’ in my profession is solely performance based, I own nothing.

But what about people who make things where a copy is as valuable/useful as the original performance; How are we to fairly pay them for their labor?

Frances

I am a pro because I have an audience of non artists who ‘buy my act’.

There is a lot of labor in actually writing, line by line, a book. There is little labor in scanning a book and there is the ‘market’ problem.

frances

“Categorization of amateur versus professional” If mandated by Government is the definition of a Official Arts Academy.

Although ‘Authors Guilds’ always dream of control of the right of definition, its not likely in a democracy.

A economic definition of Pro that is not ultimately based on sales/peformance is a bad idea. And this is the challenge facing copyright law and society in genral. A economic definition of Pro as a ‘right’ that is a matter of mandated power is an definition of ‘right’ that is attractive to people who crave authority and self identify as being the “typical artist”. In other words they are not much good in both senses of the word.

The artist collective Viscopy was seeking a compulsory right over representation of artists. When the chairman of Viscopy realized that there were artists at the meeting who did not want a bar of his economically nonsensical scheme, He with real anger thumped the table ,and spat out: “I don’t care if there is no money in it, its the right that matters” he meant these words literally.

Frances’ comment You are right Frances about individual piracy and I think we are losing, as James put it, “the respect owed her [the author] as a creatively engaged human being.” Google’s “do no evil” rings hollow, and the University of Wisconsin’s attitude speaks the “do as I say, not as I do” mantra to its students. If the United States (1) condones Google & Company’s infringement of copyrights, what more can we expect from individuals?

(1)United States of America, Statement of Interest, Page 4

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

I am not alone in objecting to Google & Company’s digitization and exploitation of copyrighted works. Objectors, whom are much more knowledgeable of copyright law than I, to the first Google Settlement can be found on this page of the Public Index. Objectors to the Amended Settlement Agreement are on this page. As well, here is another first person account: Connecticut: My Battle Against Google

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

John,

There are a lot of “art” and scholarly works that although of high value to our culture, never sell well. I think a definition based largely on economic performance is a very bad idea.

I think they should just leave the definition alone and enforce the copyright laws we have.

frances

I think they should just leave the definition alone and enforce the copyright laws we have.

The definition of who owns the economic ‘right’ to collect copyright payments is pretty important to copy-right. Redistributive compulsory collection collectives with transaction levy powers are not the answer to the problems currently surrounding copyright; They are the destruction of copyright.

As Lessig points out, the post ww2 world was a time when the production of culture was mostly a natural monopoly. In a bigger picture this fifty year period was the exception ,not the rule. However this has left a legacy issue; The Licensing industry grew up as a service industry/lap dog to those natural monopolies of cultural production. The Natural Monopolies are rapidly going west and the Licensing industry is looking increasingly hungry.

Frances

The collectives are happy to talk about how much they pay out. And they will talk about the commission fee that they charge. But they never reveal the gross value of their collections before they have first deducted fixed administration/transaction costs. Money that is uneconomic to deliver or is owed to a non-member is retained by the organisation and this money can add up to very large sums.

The ‘right to collect’ means so much for them because for them it is the ‘right to be paid’ before everybody else . Everybody else gets what is left over, after they have had their fill.

In light of recent comments to the Lab directed to me, some might find the discussion following this article from almost a year ago to be of interest.

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

Douglas Fevens:

Thanks for the interesting link: it really is a wonderful accomplishment!

I also found it interesting that you posted there, a year ago, exactly the same thing as you posted here. Have you been posting this verbatim all over the net for all that time? I suppose that during some of that time people actually replied to you, like on the page you linked. Yet your opinion hasn’t changed even a little from anything anyone has said to you? Could this possibly be because you’re actually ignoring what we say? Which leads me back to “the question” (which you haven’t answered yet):

If the facts about your family had been paraphrased, wouldn’t you have been equally disturbed?

Frances Grimble, john walker:

Sorry to have missed out on the conversation, I was under the weather for a few days. There’s really too much to reply to, so excuse me if it’s a bit unorganized. (I’ll use the abbreviations FG and JW for you.)

First of all, I apologize if I gave the impression that I think that FG somehow infringes on copyrights —- I do not think that this is the case. And even if I thought that FG somehow infringed on the copyrights of works published in 1886 and 1891, I would applaud it rather than condemn it, since I wouldn’t think it’s morally right for such works not to be in the public domain.

No, the truth is that I actually am interested in why Google doesn’t give us access to those public domain works, and FG didn’t at all reply about that. Other reasons, besides the copyright status being somehow hard to ascertain, might be that they contain “fold-out” pages in a large format (containing the clothing patterns) and Google doesn’t know how to scan them. But I am not familiar enough with the works themselves, and so was asking for help.

The reason I am interested is that I am rather lukewarm in my support of the legal workaround Google cooked up for Google Books, because I don’t see that Google is holding up its side of the bargain, with respect to what I feel is its responsibility to give access to more public domain works and orphaned works to society. And to reply to you, JW, when you make fun of me about the importance of those two old works —- well, it seems rather silly to me that you chide me over their lack of importance when we see that FG uses them as source material to create new, interesting creative works, and is willing to pay what I believe are significant sums of money to obtain them (I can’t believe that such old items come cheap).

As for your comment, FG, about copyright not being able to prevent people from creating: you cannot imagine someone reading your book on bustle fashion, being inspired by it and wanting to create a similar book about a niche fashion which was only current in the period 1925-1930, being blocked in this endeavor by not being able to find the rights holder to the clothing patterns?

Ron

Greater access to research materials dos not justify the ‘accidental’ breaching of existing copyright, nor dos it justify overturning ‘The full rights of copyright’ as a social/legal concept.

As FC points out access to orphan works (and to thousands boxes of personal papers) is already available through the public library system. My partner is a professional writer/historian, she is subject to human ethics codes that are very strict about consent, the stuff is there if you want to get it. Not being able to find a right-holder has not been for her a big problem - if it happens you look elsewhere, that is what research is all about; There are plenty of fish in the sea.

As to the Google holding up its side of the ‘bargain’ bargaining refers to reaching a agreement , before you take the goods home. There is no existing bargain , there is no contract. And If there was a ‘bargain’ it is definitely not a deal between Google and individual right-holders. It is a deal between Google and a group that actually has no contractual arrangements with most of the right-holders it claims to represent.

Ron,

Google should not have any problem ascertaining whether works published before 1923 in the US are in the public domain. It is not my responsibility to explain why Google does not give away, free, all the public-domain works they scanned. I assume it is because they want to charge for them. I have not seen that Google ever legally promised to give them all away, nor does Google in fact owe the general public anything that public did not pay for. Google also does not owe the general public access to illegally scanned works—its obligations are all to the copyright holders of those works.

If you think Google is turning itself into the world’s largest bookstore for altruistic reasons, you’re seriously deluded. This project is all about profits.

I have no problems with buying public-domain works on the used book market. I am experienced in searching for them and willing to take the trouble. I also have no problems buying copyrighted works on the used or new book market. Except in that case I would never use the material (except for merely reading it) without explicit, legally valid, written permission from the copyright holder or someone (such as a publisher) they have authorized to act on their behalf.

Yes, I can publish works based on ones published after 1923, or reprint works published after 1923, if I seek permissions. (And there are other people who have already done so.) Not a hardship. I have far too many project ideas to ever carry out, so if one idea does not work, many others will. That’s true for most authors and publishers. The number of books published per year is absolutely exploding, as is the number of publishers. There is no cultural bottleneck because people need to locate copyright holders to create derivative works.

I have no problem with the concept of asking other copyright holders for permission. I have no problem with their refusing that permission, for whatever reason they feel like. That is their moral and legal right, and I fully respect and support that right.

Ron,

If you want to see numerous works in my field originally published after 1923 and legally reprinted, see:

http://doverpublications.ecomm-search.com/search?keywords=costume

No one arguing there is some kind of horrible permissions bottleneck has ever produced solid statistical evidence to prove it.

And people arguing that you just can’t read copyrighted works should try interlibrary loan or the used book market. For example, I have some favorite cookbooks I’ve been replacing with legal used copies for decades, now. The most evidence I’ve ever seen presented for that was they tried to find it and couldn’t—and when they give a title, I’m often able to find it easily.

Ron, I do not respond well to —”shouts” — vague threats — or speculation as to my frame of mind. I have no intention of responding further to your posts.

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

Douglas Fevens:

Ron, I do not respond well to —”shouts” — vague threats — or speculation as to my frame of mind. I have no intention of responding further to your posts.

Why do you say “further” —- you effectively never replied at all. Your replies, like this final one, had nothing to do with the points I raised and hoped that you would consider.

So be it. I tried. I am happy that you are at least making it publicly clear that you are incapable of replying to any argument which might actually change your opinion. Your silent lack of reply to any of the points I raised, or questions I asked, was quite irritating, even if I somehow understood that it would require a Herculean effort from you to actually entertain the thought that you could be mistaken.

Frances Grimble:

If you want to see numerous works in my field originally published after 1923 and legally reprinted, see:

http://doverpublications.ecomm-search.com/search?keywords=costume

No one arguing there is some kind of horrible permissions bottleneck has ever produced solid statistical evidence to prove it.

Thanks for the link to Dover Publications. I looked at the first 100 out of the approximately 500 hits on your search, and exactly 1 seems to contain clothing patterns which might still be under copyright (if “turn of the century” extends past 1923). All of the other books only contain illustrations of people wearing clothing, or possibly patterns for clothes from before 1923. Many of the post-1923 illustrations seem to be from store catalogs, so I suspect that either such catalogs don’t qualify as creative enough to be eligible for copyright, or that their US copyrights weren’t renewed and they lapsed into the public domain (a cursory investigation concerning the Sears catalog leads me to believe that the latter is true). Other illustrations seem to be redrawn by the modern illustrator. And as I am certain you already know, fashion designs themselves do not qualify for copyright in the US.

So, no, the link you posted actually seems to shout out the value of the public domain to society, as opposed to showing the relative ease of using works which are still under copyright. On the other hand, Dover Publications has always been very centered on reusing the public domain, and if I had proposed them myself as being representative of books in general, I’d think you’d be perfectly justified to accuse me of “cherry picking”.

Frances Grimble:

… I put considerable original effort into the book Ron is referring to (Bustle Fashions 1885-1887). …

Your post isn’t exactly clear, and can be interpreted to mean that your book also made an unwanted appearance on Google Books, like Mr. Fevens’ book. Is that the case? And if it did appear, how exactly was it displayed (downloadable, full text, partial text, snippet view, or only bibliographical info)?

Ron,

Dover has reprinted numerous books on costume (and on many, many other subjects) that are under copyright. Including many from the middle decades of the 20th century, the period in which so many of those so-called “orphan works” were published. If any of those copyrights were not renewed, Dover had to do just as much work to find out they were in the public domain as to find out they were not. Some Dover books are anthologies, but many are not.

Just because a book contains patterns, illustrations, and instructions for, say, clothing styles of the Middle Ages, does not mean it was written or copyrighted in the Middle Ages. The styles portrayed may be very different from the publication date of the work. People have been publishing works on making theatrical costumes and “fancy dress” (for private costume parties) for quite a long time now. Likewise, they have long been publishing less practically oriented books to inform readers on what was worn in the past and the folk costumes of other countries.

Textile garments are not copyrightable (though in some instances they are patentable). However, patterns (which are also line drawings, BTW), illustrations, and instructions for garments are. Modern home-sewing patterns are copyrighted, and so were older ones. A book of patterns can be copyrighted just like any other book. Creating a garment pattern does, in fact, involve as much creative work as writing text. And of course, garment patterns are usually accompanied by instructions, which are just a form of technical writing.

Although I am not a lawyer, I’ve worked in both historic costuming and publishing for many years. I am quite familiar with many of the books in my field, who wrote them, when, their contents, where to obtain them, and how rare older ones may or may not be. I do not expect you to be equally familiar, but I do wish you’d stop expounding on things you know nothing about.

Ron,

I do not know whether Google has scanned any of my books. If I had opted into the Settlement and filed a claim, I could have gotten a list of books scanned as of that date (but note, Google is still busily scanning). Because I opted out of the Settlement, I have no access to the database listings for any books of mine that have been scanned. I gather copyright holders can only access their own listings, so I cannot ask someone else to check this for me.

I asked Google directly if they had scanned any of my books and they refused to tell me.

Do you have any purpose in asking all these questions about “snippet view,” etc.?

Fran

Frances, anyone who has registered with the Google Settlement website can search the database and get a tentative list of titles that were digitized on or before May 5, 2009. I did a search on your name, and found only one book that had been digitized: “Fashions of the Gilded Age: Undergarments, bodices, skir…”

None of your books are currently being displayed on Google Books.

Frances Grimble:

Do you have any purpose in asking all these questions about “snippet view,” etc.?

I asked the question because I would like to understand better how the Google Books project has affected you. I do not feel it is right to base my opinion on the Google Books project solely on my biased and limited understanding of what it has done/is doing/may do in the future, and so I ask questions to be able to get more information from other sources who look at it differently and/or were affected differently.

(And thank you for your reply to my question.)

Anna,

Can you/did you find any digitized after May 5, 2009?

Fashions of the Gilded Age is a two-volume work; did Google digitize one volume or both? If only one, which?

I opted out all my books from Library Project Scanning in a timely fashion. (Yes, Google provided a soothing PR database specially for this after the Author’s Guild suit was filed, not that I believe they paid any attention to its scanning opt-outs.) I opted out Fashions of the Gilded Age from scanning before it was even sent to the printer. Google cannot possibly have scanned it before I entered it in that database.

Of course, Google’s soothing PR database also neglects to display any dates of opting out (or scanning, or any other dates) for public viewing. I printed it and wrote the dates on it, but I doubt this means anything legally.

As I have only nine books (including both volumes of Fashions of the Gilded Age, which are purchasable and usable separately), even one being scanned (and the Gilded Age books are my best sellers) would have considerable negative impact on my sales. I opted out of the Settlement entirely, but the Settlement does not guarantee Google will not sell (or give away) my books anyway. I have no intention of ever voluntarily selling through Google or joining in any of their programs. Any suggestions? I assume as the book is not publicly posted (yet), I cannot issue a DMCA takedown notice?

Fran

Frances Grimble:

With respect to your reply to my comment about Dover: we seem to not be understanding each other. I never claimed that those books were not covered by copyright, just that it appears that the primary source information for them mainly appears to be public domain. As you pointed out, I am not expert enough about the history of publishing in this area to know that a book about “illustrations of medieval fashion” is actually based on an older book on the same subject which is still in copyright. So I had to make my judgment from the subject matter itself, assuming that such a book uses out-of-copyright illustrations from the medieval period itself.

Do you know something which eludes me about the Sears catalogs? As far as I can tell, the copyrights were only renewed for the catalogs published in 1947 and 1951. Am I wrong?

I’d appreciate it if, with your greater expertise, you’d review at least the first 50 of the Dover books and let me know how many are primarily based on material which is still in copyright.

Ron,

Dover has reprinted plenty of costuming (and other) books from the middle of the 20th-century as is—except for, often, a new introduction. As for whether the copyrights for these were renewed, I do know the author of one of the books (first self-published in the 1970s) through an organization we both belong to. I have seen an article by the copyright owner of several other books Dover reprinted—she inherited a relative’s copyrights of several books first published in the mid 20th century. She discussed the Dover publication in a scholarly journal I subscribe to. Both of these copyright holders are getting royalties from Dover.

As for the rest of the Dover publications, I’d advise you to contact Dover or research their status yourself.

I should add that, Fashions of the Gilded Age contains considerable material in a new translation from German. I commissioned the translation of a German book and bought all rights to that translation from the translator.

Frances Grimble:

As I have only nine books (including both volumes of Fashions of the Gilded Age, which are purchasable and usable separately), even one being scanned (and the Gilded Age books are my best sellers) would have considerable negative impact on my sales.

I really don’t understand this statement. Why do you think the mere act of Google scanning your book is going to affect its sales? Wouldn’t Google have to distribute this scan to the public in some fashion in order for that to happen?

Maybe you can think of a reason Google would have scanned my book(s), and set up a Settlement for the purpose of selling such scans, and for distributing the scans free to not only the library that supplied the book or books but to “full partner” libraries (I’ve seen some of the contracts posted online).

without any intention of ever using the scan(s).

I can’t.

Frances Grimble:

On the one hand you state in your comment that you have expertise which would enable you to know that the authors of the ~500 Dover books have used, to a significant extent, source material which is still in copyright. Yet when I ask you to review the first 50 such books, you give me 3 examples, two of which don’t seem to be about the source material itself but rather about whether Dover is paying authors for reprinting their works (the third example, yourself, is obviously OK).

I’m sorry, but it’s not very convincing. In order to get a good estimate of the percentage of those books which are significantly based on source material which is still under copyright, we need a much larger sample, and a sample which has been selected arbitrarily (as opposed to being based on your personal knowledge) —- like, for example the first 50 books in that list (assuming they aren’t ordered in a special way).

Since you claim I don’t have the ability to judge what the source material is, and you aren’t willing to evaluate the books yourself with respect to this question, we’re left in the situation where both of us are left with our own beliefs.

Frances Grimble:

Maybe you can think of a reason Google would have scanned my book(s), and set up a Settlement for the purpose of selling such scans, and for distributing the scans free to not only the library that supplied the book or books but to “full partner” libraries (I’ve seen some of the contracts posted online).

without any intention of ever using the scan(s).

I can’t.

You’re still not being clear about how you believe this affects your sales. Do you believe the distribution to the libraries is going to or already has affected your sales? Or do you believe that your sales haven’t been affected yet, but eventually Google will start selling its scans of your book without paying you? Or they will pay you, but the fact that they will be selling the book in digital form will make it much more likely that your copyright will be infringed upon, to the detriment of your sales?

Ron,

All of the above.

Ron,

I am not even remotely clear on why you need all this information from me, specifically. Or from anyone on this forum. Or why your purpose seems to be to ask endless questions of everyone, each question leading to others. I suggest you do your own research if these questions are so pressing to you.

Frances Grimble:

I am not even remotely clear on why you need all this information from me, specifically.

I had had the impression that, since you post your opinions here, you would understand that others might be interested in why you have those opinions. I am sorry if my questioning has made you uncomfortable, and I will no longer ask you for more information.

All of the above.

Ah, so I understand you merely have a general fear that this will affect your sales. Thank you for the information.

Googles financial interest (what it gets paid for, by advertisers) is the creation of targeted audiences. Google is therefore unlikely to offer much more than a tease ; If the audience got too much of a look it would not come back. The problems inherent in GBS are in the way that the settlement links things together; Things that when viewed separately are pretty small beer when connected become pretty toxic.

Ron My reason for bothering is- we had nearly seven years of fighting a compulsory licensing group.

We know how truly awful these guild groups are. Google is just a business, compulsory licensing groups are authoritarian malicious mediocrity personified

John,

What you’d really love is a Google proposal, the link to which I unfortunately lost, that the prices charged for the books be based on Google-created algorithms. Meaning, I assume, only the tiny percent of the most popular books will make any money.

It is clear from the Settlement that Google is selling entire books, not just a tease. However, even teases are very harmful to the sales of modular books where users can get by with only using specific sections, and where they can just search for what they want instead of the copyright holder being able to choose what pages are displayed for free. People are already using Google Book Search and Amazon Search Inside as sources for freebies instead of buying books.

Frances, since Google was to lazy to get the permission of authors to use their works, maybe they sought and got George’s?

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

Frances , James. Is Google actually selling the books?

I understood that the settlement was about the use made of the books, by google.

If the settlement is approved, Google will sell access to electronic versions of scanned books.

An algorithm calculating individual use + an opt-in system + some sort of e-register for direct e-payments = near enough to ‘the full rights of copyright’. The copyright collectives would hate it; no more management fees , no more conferences, no more hand outs to deserving authors, no money for lobbying for more management ; it would be a rent-seekers darkest nightmare.

John,

The proposed Registry IS, I think, what you are calling a copyright collective.

When I sell to wholesalers and retailers, I set the cover/list price for each book. This price is based on my costs, and on how many copies I think I can sell. It is also based on the list prices of competitive or similar books in the marketplace, and how well my previous books have sold.

I can choose to set a lower list price than other publishers in the hope of selling more copies that way. But on the other hand I can choose to set a higher price (and I usually do) because (a) micropress books never sell as many copies as books by larger publishers, (b) I believe I am offering a better and more desirable book, and (c) I wish to create a boutique image in the marketplace.

If it is of any interest, I have found that Amazon consistently discounting each of my books as much as 37% (which loss they take out of their own pockets for their own overall marketing reasons) has not increased my sales one bit. I’m still selling the same quantity of books to the same readers, often the exact same people who have become consistent purchasers of my books. Lowering the price of a book does not inherently sell more copies. Mine are what are called “niche” (specialized interest) books, meaning only a limited number of people are interested in them no matter what the price. It is thus the best strategy for me to price each book as high as I think the market will bear.

I sell to wholesalers and retailers at a discount off the list price. They can sell the books at whatever price they choose, whether it is less than or more than my list price. BUT, since I have full control over my list price, and I have agreements with them as to the discount I give them, I know how much money I’m getting for each book, regardless of what the reader/consumer eventually pays.

Pricing a book is a matter of considerable calculation that takes a number of factors into account, and these factors are typically anxiously analyzed by the people who work for publishing houses. They can, certainly, get pricing wrong. They can, certainly, push a book as a bestseller and see it become a market flop. Overall, however, the system works pretty well.

A computer-calulated system is likely to be similar search engine results—the most popular books will float to the top and stay there, and people will not look beyond the top results. Niche books (including many scholarly books, which are typically priced quite high) are unlikely to ever float to the top. Google pricing them low would not increase their audiences. So the result would likely be, niche books will not make back their costs.

In other words, publishers need to set their own list prices.

I will add, by the way, that Google Books is highly unlikely to “level the playing field,” between large and small publishers. Amazon, meta-book-search engines such as www.addall.com, and the general search engines have been displaying books by both large and small publishers for years and years. None of them have leveled the playing field: The large publishers always win. Large publishers just have, way more clout in the industry, way more publicity, way more money, way more employees, and in general way more resources.

Google is just another huge business agressively attempting (in this case) to take over small businesses—micropresses, self-publishers, and people who have inherited the rights to so-called orphan works (I’m one of those too, by the way). I didn’t go into business for myself just to let Google to sieze my books and declare they are now my publisher.

If the settlement is approved, Google will sell access to electronic versions of scanned books.

James

Fraud was pretty rife in the past decade ; The settlement truely is a sub-prime tale.

An action about fair/unfair use, used to turn a absurd, unrepresentative, group of mediocrities into ‘official class representatives’ of virtually half the world, so as to claim right to sell rights that they don’t own = lots of “psychic wealth” creation.

Frances

By ‘copyright collective’ I mean compulsory collectivism .

By Algorithm I meant an reasonably accurate calculation of actual usage of individual books , not some variation on ‘sampling’.

By opt-in I meant ; individual choice , If You have a more competitive option take it. It is a free country is it not?

John,

This is just a big-business grab. Google wants to dominate the publishing industry, the larger publishers had the industry clout to object, so Google cut a deal that allows them to negotiate their own private terms but automatically opts in authors, micropublishers, and heirs of “orphan works.” In other words, large businesses allying to screw the small ones and the individual rights holders.

If the Settlement’s opt-out terms are approved, it’s not looking like a free country to me.

Google can I believe base their algorithms on anything they want—including whether the publisher bought expensive advertising from them. Which, guess what, the small businesses and authors will not be able to afford, at least to the same extent. Google is likely to consider their algorithms a trade secret and to change them at will.

How anyone can see any altrusim in this massive grab for assets is beyond me.

Sure, I opted out of the Settlement. But with Google trumpeting about their “universal library” (really a publishing house and bookstore), with every book in it, I suspect they’ll just sell mine anyway and not pay me. That’s why a lot of copyright holders who opted in, did so—they figured they were screwed no matter what, so they might as well get a tiny bit of potential income as opposed to none.

It goes with out saying that large corporate entities have a natural disposition that favors dealing with other corporate entities. There is a similarity to the days when large manufacturers with natural monopolies over the supply of goods formed comfy, feather bed, relationships with the managements of unions with a monopoly over the supply of labor. Plus ça change, plus c’est la…

However fraud also dosn’t change much. This group of authors claim to class representive status is in Galbraith’s phrase from ‘The Great crash 1929’ :

“psychic wealth”

There was a lot of psychic wealth in the air when GBS started , but the climate has since changed. The bubble burst :

In depression all this is reversed. Money is watched with a narrow, suspicious eye. The man who handles it is assumed to be dishonest until he proves himself otherwise. Audits are penetrating and meticulous. Commercial morality is enormously improved. The bezzle shrinks.”

Is the American legal system really going to trustingly grant ‘class representative’ status to people simply on the basis of a self description?

john walker:

My reason for bothering is- we had nearly seven years of fighting a compulsory licensing group.

We know how truly awful these guild groups are. Google is just a business, compulsory licensing groups are authoritarian malicious mediocrity personified.

Yes, I had understood this, mainly, but thanks for volunteering the information! I see that you are mentioned in two places in that government report you pointed me to. I found the first quote from your submission quite interesting:

As a mid career artist, I have no right and certainly don’t deserve a royalty on resales of the hundreds of artworks I have sold at good prices to buyers years ago; buyers who were innocent of knowledge of a future royalty. These buyers gave me bread and wine for my journey. I am grateful for the help and support they gave me.

Which reminds me… now that I’ve slogged through the 82 pages of that government report, I still have to get back to Professor Grimmelmann’s paper on ethical copyright. Your comment seems to be quite in line with his explanation of the general thrust of that paper.

Of course, you have a big advantage over Frances Grimble in that it seems to me that it’s going to take decades before copying a painting will be even 1/10 as easy as it is to copy your average book, now. So you are much less dependent on your customers also behaving ethically.

Ron

Copying a painting (and selling it )is not that hard, its just forging the signature that is a criminal matter. As for copying the movements that created the original, that is ‘beyond all attainment’ , I cant pull whales out of the ocean , I can only stand and stare.

Am intrigued that you are actually reading the stuff. (Could I ask for a disclosure of ‘interest’ from you?) Have you read the transcripts of the actual hearings? The Parliamentary committee members were , a silk , a medical specialist, a successful business woman and the chair was former head of The Australian Conference of Trade Unions. When the then head of Viscopy attempted to disparage a UK rival organisation as “twaide” the look on the face of the committee Chairwoman was priceless. The Copyright collectives look of blank incomprehension when Ms George asked them a question about ‘tax’ was another priceless moment. The response was- “that would be nice” !

They were let into the village so that they could be put to a end.

So you are much less dependent on your customers also behaving ethically.

My customers are my fans (bless their cotton socks) . Healthy resale prices increase the value of my back catalog. Reproduction of my pictures is free advertising.

These collectives love to dress up in ‘ethics’ but underneath they are against anything that is not good for them.

if you give to the world , courage generosity and right understanding your talents will be returned doubled, If you give the world, fear greed and ignorance, ’ it will all be taken away’

People can copy without plagiarizing (claiming the work is their own). Piracy (including but not limited to Google’s own) is much more common, therefore a larger concern. Digital images such as photos can easily be copied.

John, I suspect your art is too avant-garde for my very traditional tastes but I’d still like to see it, if you have a website.

Because my readers are highly visually oriented, I spend a great deal of time trying to select public-domain images that I think are “pretty” and then editing them to make them prettier. But especially in terms of the selection, I can’t even define what “pretty” means. I give some priority to very unusual and very typical styles of a period. Otherwise, I just successively weed out and narrow down. I suppose I really ought to be able to define it all in terms of lines and so on, but since readers seem to like my selections I don’t bother defining “pretty” even to myself.

A picture

Actually Frances I am a right Dinosaur; As Degas once said, I paint for about seven people, and they are all dead.

a bit more

Ps Frances I remember watching with wonder as my mother turned paper patterns (that had come in an envelope), into a dress for my sister. My grandfather used to get pattern books for furniture , out at the edge of the desert there are still homesteads with carefully hand made copies of regency furniture, that can be mire valuable than the ‘originals’.

Ps Frances I remember watching with wonder as my mother turned paper patterns (that had come in an envelope), into a dress for my sister. My grandfather used to get pattern books for furniture , out at the edge of the desert there are still homesteads with carefully hand made copies of regency furniture, that can be mire valuable than the ‘originals’.

[This jpg is a bit bigger

try again

John,

My knowledge of modern art movements pretty much stops with Art Nouveau. Cubism was such an outrage to my sensibilities that I was unable to proceed further in art appreciation. I love your colors, though.

Fran

John,

I’ve looked up some more of your landscapes. Had no idea you were such a prominent painter. I don’t understand abstract art very well, but I like the overall effect of yours.

Frances

Do you know Piero Dela Francesca?

Picasso was a ancient artist.

The thing about the artworks of Eugène Delacroix ,Corbet, Manet that frightened the academy was how roughly they were painted. “Order a hand painted copy of this picture”

I love your colors, though.

Thanks, color is everything.

Frances

The one thing a representation can never be is; the thing that it represents.

Color is very important to me and I wish I could work with it more. Your sense of color seems to be similar to mine.

But John, when you talk about the proposed Google Settlement, you sound like the kind of person who actually understands art critique articles. Heck, I’m a book critic and I don’t always even understand book critique articles. I figure with something like the Settlement, you have to be absolutely transparent in what you say, to the extent that you hit the reader over the head. Otherwise, the Settlement is both so arcane, and so outside the knowledge of most people who do not work in publishing (plus many authors), that they just don’t understand most of it at all.

But I really do appreciate the knowledge you have given me about compulsory licensing organizations and other issues.

the Settlement is both so arcane, and so outside the knowledge of most people who do not work in publishing (plus many authors), that they just don’t understand most of it at all.

It is intentional Mushroom treatment.

The committee ‘off the record’ asked us: “where are all the artists?” ( apart from us there were about 6 form letters and a ‘internet partition’) to which we replied ” almost nobody knows about it”. My Partner is a member of Minerva’s tribe , she can see in the dark , it was her that spotted the danger. She might also be a daughter of 303 squadron.

Most critiques would not have a clue about art as communication , they tend to talk about objects.

John,

What I want out of literature, and fine art, and music, is magic. I want to see a world other than the one I live in. I want to experience a sense of wonder.

But I figure the aim of a large part of nonfiction, including these discussions, is practicality.

Fran

The question: “where are all the artists” came from a third party connected to the hearing and not from the Committee itself.

The audience is always right. There are no rules about ‘art’.

But…. Reality is wonder.

Then the LORD answered Job out of the whirlwind, and said,

Who is this that darkeneth counsel by words without knowledge?

Gird up now thy loins like a man; for I will demand of thee, and answer thou me.

Where wast thou when I laid the foundations of the earth? declare, if thou hast understanding.

Who hath laid the measures thereof, if thou knowest? or who hath stretched the line upon it?

Whereupon are the foundations thereof fastened? or who laid the corner stone thereof;

When the morning stars sang together, and all the sons of God shouted for joy?

What immortal hand or eye

Dare frame thy fearful symmetry?

I am a modern; reality is all Ive got.

John,

I think your landscapes are magical, and show me another world.

But, I disagree with your maxim that the audience is always right. It comes perilously close to the Internet philosophy (including Google’s, I believe) that what is most popular is always best.

Flattery will get you anywhere.

The audience (over long periods of time) is always preferable to “I know whats superior/advanced art and you will just have to get used to it”. The audience like democracy;’is a pretty poor judge , until you look at the alternatives’.

Cooks Source’s Source ———— Update Blogger blogs

Douglas, thanks for the link.

James brought up a very interesting issue, that had not occurred to me: Many people who assert their right to copyright holders’ work free, or at a super-cheap price the reader somehow determines, and insist copyright holders MUST somehow continue working to produce material for them even without payment or with very little payment, do not actually put it together that this is an extremely hostile, contemptuous, and discouraging attitude toward copyright holders. To the extent that it’s making me seriously think about entering another profession. I’ll have to give up my business anyway if Google succeeds in gutting my sales. Seeing Google repeatedly insist on their right to seize control of my works (along with everyone else’s) does, and I’m not exaggerating, feel like a form of rape.

I’d think the contemptuousness of this attitude would be obvious to the people who hold it, but then, my experience in marketing has been that you have to point out the obvious to readers. So I’m not sure how much it would help to point this out to amateur pirates, but it might. With Google, of course it wouldn’t, as they are firmly convinced that they have the right to grab as much as they have the power to grab.

Frances

Ironic awareness is always in short supply, particularly in those who have been processed by the tertiary qualification industry. While they do not know what they do, they do manage efficiently.

john walker:

Could I ask for a disclosure of ‘interest’ from you?

Of course! Unfortunately I’m not that good about talking about myself, though, so I hope the following won’t be too disorganized or boring.

I’m middle-aged now, so I’ve spent my adulthood during a period where technological advances have led to enormous changes, which I have personally experienced. I’ve always had an enormous curiosity about, well, everything, but especially about mathematics, science and technology —- leading to my spending many hours in libraries as a youth, acquiring knowledge which I now use in my job as an applied mathematician in industry. The rise of the open-source movement and its ability to motivate thousands of volunteers from diverse backgrounds to cooperate in generating useful tools (i.e., computer programs and operating systems) for me led me to become interested in the basis of one “school” of the open-source movement, namely, the peculiar inversion by Richard Stallman of copyright into “copyleft”.

A second event which also focused my interest on the subject of copyright was the passage of the “Copyright Term Extension Act” in the US in 1998. By this time I was old enough to appreciate that what I was taught in school about democracy, that laws get passed because the “people” want them, wasn’t at all the reality —- I understood that this law was passed mainly because of the large economic interests which backed it (i.e., large corporations), rather than because the public at large cared about the subject or because it was thought to be beneficial to US society (as opposed to the US economy) in general.

Well, anyway, to cut this short, in the past seven years or so I’ve become utterly fascinated by how the advance of technology has caused great changes in society, and how the legal system hasn’t really “kept up” with these changes in many cases, especially in the case of “intellectual property” law. Which is why I’m here, and which is why I’ve become willing to (occasionally) read long, not-always-interesting legal briefs or government reports.

Ron,

I’ve worked in publishing for over 27 years.

I have heard the slogan that copyright has not “kept up with” technology for a long time, yet no backing for it. The fact is, copyright law has “kept up with” photocopiers, it has “kept up with” desktop publishing and the consequent explosion in self-publishing and micropublishing, and it has “kept up” with the Internet. Copyright law does not need to be altered to accommodate new technology. Just because it is technologically easier to copy material without paying for it does not mean it is legal, or that is pays the copyright holders.

I have also worked as a technical writer for various computer companies, and possibly more relevant, my husband is a programmer, with two BAs (one in mathematics) and a Phd. (Well, he was a programmer till the company where he worked for over 35 years filed Chapter 7 … but I assume he will get another programming job at some point.)

Therefore I feel in a position to assure you that the vast majority of software and books produced, are commercial. At least in the sense that people invest enormous amounts of time and money in them in the often speculative hope of a return. I couldn’t afford to write or publish books without being paid. I’ve invested 19 years of my time and several hundred thousand dollars of my money in publishing nine books so far … and I operate on the typical micropress shoestring budget. My dining-room table is covered with computer equipment and I recycle envelopes. I work well over 40 hours a week—which I could hardly do if I had another job in addition. I don’t get a salary, I don’t get health benefits, I can’t afford employees, and I have no guarantee of getting a return for my costs. Which, by the way, takes some years per book to happen, if it does happen—I’ve got one or two I’m wondering about.

And now, my life is full of people who earn far more than I do, comfortably assuring me that if they don’t pay for my work, or if they snatch away years of income from it, I’ll slave away for them anyway. Or if I won’t (I’m failing to see any incentive currently), someone else will, so who needs me? Their vision seems to be to establish their own Third World right here in the US (and Canada, and Austria, and Europe, and other developed countries), with people creating software, books, and art for them free (or at least at bare cost), while they kick back and congratulate themselves on having saved a little money. Just like they enjoy the fruits of having their running shoes made in China at 50 cents an hour—presumably they don’t want to outsource all the books and art to China because so many Chinese don’t speak English.

I just got out the frequently delivered brochure for my local pizza parlor, Mozzarella di Bufala. Their pizza is pretty good, but it is not a gourmet restaurant. I can order a 16” large (10 slices), of most of their popular pizzas for about $25 (give or take a couple of bucks depending on the toppings). That’s the list price for most popular hardcovers (which are often discounted from list price on Amazon). They’ll sell me one slice of New York cheesecake for $4.50 and a liter of Coke for $2.60—if I ordered both the Coke and the cheesecake, I’d pay about as much as for a mass-market paperback.

Let’s not even get into what I’d pay to eat one dinner at Greens or Chez Panisse.

And yet I constantly encounter college students who unthinkingly plunk down the price of a couple of books at least once a week on pizza dinners, whining about the “greedy publishers and authors” who are “ripping them off” for books. What, isn’t food a necessity? And, why should farmers, grocers, etc., not labor free for the good of society, as a “collective”? Why is this one-way socialism, this privilege of doing social good for free or for fun, reserved for writers, artists, composers, and other creators of copyrightable works?

This is exactly an instance of the contemptuous attitude that is making me very seriously consider finding an entirely new profession. People are willing to pay for what they respect. I don’t mind if people do not want to buy my work for any reason they choose: They think it’s too expensive, it’s of no interest to them, they think it’s dreck. Fine. But I am completely being fed up with being told they very much want my work, but they only want it free (pirates, or people who expect me to give it all away), or they want to seize control over it to get a large part of the revenues from it (Google), or they want it at a price they think is “fair” (news flash: I can’t afford to sell it for less). I’m constantly being assured, by people who know nothing about writing or publishing, and who are just repeating slogans, things like:

I have no costs other than printing. Apparently, spending a year or two writing, editing, illustrating, indexing, etc. is unnecessary.

If I only saved my money and treated my work like a real job, I could afford a copyright term of 14 years. Of course, I’m not only not paid any salary or benefits whatever, my profits are slender and take years to arrive. Meanwhile, I have to constantly pay for my housing, groceries, dental care, etc. Why am I somehow not entitled to earn a living in addition to bare payment for my costs? Why, exactly, am I supposed to suffer while the people who demand that I work for them earn comfortable, secure salaries?

I’m just doing this for fun, so I don’t need any money. Variants, Of course I’ve got another, full-time job, so I don’t need any money. Writers earn so little money anyway, surely they won’t miss this income if it all goes away. Why, exactly, is everyone so sure they know all about my personal income and feel just fine they can allot it to themselves (by not paying for my work)?

Then there’s *Writing is fun, so writers don’t work for pay.” Many people have jobs and professions they enjoy—including many people who assert this. They still expect to be paid.

And the kicker, We know you’ll continue writing anyway, even if we don’t pay. Hello? What kind of idiot do you think I am?

By the way, Ron:

If people want to work for free, collectively or not, they are already entirely free to do so. One of the prerogatives of the copyright holder is to give away the rights.

But, it is outrageous to expect to legislate us all into working for free, or for smaller peanuts than we already get, or to appropriate our incomes or large portions of them.

When I started out 27 years ago, I really wanted to help people. I was for some reason especially good at writing various types of how-to material, and that seemed to me to offer readers a solid benefit. Of course, I also expected to be paid, just like the people doing other jobs—and people expected to pay me. But as I worked, especially when it was really hard or I was really tired, I’d have this inspiring vision of my readers. People who had been ignorant, frustrated, and/or confused—and I was going to help them!

But for the past year or so, my consistent vision of my readers has been of a bunch of selfish, greedy people who would steal my work, urge others to steal my work, scream on the net about how little it was worth, and constantly whine about us overpaid, underworked, bloated creators of works. Then when the Google scanning project came along, it was just such an incredible, massive violation of everything I’d ever done. I’ve had no children (nor wanted any): My books, my articles, my work are my children. I’ve loved them, believed in them, worried about them at night, spent anywhere from a year to seven years (in one case), thinking about each book. I’ve been depressed every time one was published, because the work for it was over. I’ve sweated over whether they’d sell, I’ve anxiously waited for reviews. They are morally as well as legally mine.

It’s dreadful for a book to fail, but at least, the success or failure is my own responsibility. That is, as long as the work is mine. But for Google to come along, scan it, sell it (as is probable), do whatever they want with it, ruin my business, and then tell me it’s all for the greater good while meanwhile, scooping up all my revenues for themselves—it’s worse than a rape, it feels like being in the sack of Rome.

Ron,

Also, re changes in technology: I started my career slightly before the era of commercial PCs sold to individuals. At that time, although a few people plagiarized, it was only about to the same percentage as people commit crimes. No ethical writer plagiarized and no ethical publisher knowingly pirated. A writer who got caught plagiarizing could pretty much kiss off his or her future job opportunities and freelance sales. Word got around, the writer’s reputation was seriously damaged, no publisher wanted to touch someone who was likely to get them sued. Also, plagiarism was the one of the worst possible things anyone could do to you, therefore, no way would you do it to another writer. Finally, plagiarism was a declaration of failure. Anyone with a modicum of skill can think of a different way to express even the same facts, and therefore, if you had to resort to plagiarism you were unworthy of being in the profession.

As for publishers and piracy—first, none wanted to face a lawsuit. Second, publishers had (and still have) many more fine manuscripts submitted (often ones carefully preselected by agents) then they could ever publish, so who needed to pirate?

One thing the Internet has done, is encourage amateurs and even professionals to publish a lot of dreck. Partly because people are now able to describe the most trivial details of their lives for members of the public willing to wade through them; but also, partly because even pros are busily churning out any old thing fast to sell their work, to keep people coming to their blogs and to keep up their search engine ranks by constant change. And if you’re asking why so many pros publish dreck on their blogs, the answer is that they need to reserve most of their time for writing material they actually get paid for. I think showing you can produce dreck is an ineffective sales tool, but many people disagree.

I don’t mind people publishing dreck and I don’t mind their giving it away. I don’t have to read the stuff. But the same motivations have also encouraged people to plagiarize and pirate … as we have just seen.

As I said, just because technology enables you to do something, does not mean that you should, or that the laws should be changed to allow it. Although, current copyright law DOES allow someone to write anything they want (as long as it is not plagiarized or pirated), post it on the net, self-publish it bound on Lulu, give it away free of charge, and circulate it any way they please. Just as long as they created the work, or licensed or bought rights from the person who did. Fine with me.

Frances and Ron

Copyright is not licensing. It is Licensing that has not ‘kept up with technology’. Licensing made sense when the means of production and distribution was pretty much a natural monopoly. In those days it was pretty easy to ‘license’ as in : group regulation of the production and distribution of copies. Would not be surprised if licensing bodies have actively suppressed the development of alternative technologies that would make licensing groups unnecessary especially in their core business area - university library lending and photocopying fees.

For a long time now compulsory licensing collectives have been trying to replace copyright with hypothecated taxes because they are no longer competitive as service providers to right holders.

Ron

In Australia these collectives were typically created between about 1970 and 1985. Their leaders are mostly about 60. Most people have long stopped listening to their bleating. The supreme courts Blank tape ruling: that the levy on blank media was too tax-like to be part of the Copyright Act, put a fence around their ambitions. But they still try. Hence their idea of a ‘right’ to which you can not say no.

I got involved in this for the simplest of reasons , self defense. Defense = attack, and that meant lots of research , planing and connecting up with a web of people who had just one thing in common: ” I want to Kill Viscopy”. And above all it involved understanding how they think/move(not Fun). That is how i learned what used to be called ‘close reading’.

GBS has gone around in circles for years; It is a perfect example of how they think.

John,

We don’t have licensing collectives in the US, except for the Copyright Clearance Center, which is entirely voluntary.

US publishers who wish to reprint a book, or to publish an element such as an essay or an illustration first published in another book, contact the copyright holder. I believe large publishers have whole departments that do this kind of work. Also, there are professional services that search for the copyright status and holders of works on behalf of publishers and authors who hire them to do this. It’s by no means an insoluble problem.

Both authors and editors are creative people who can almost always think of something else to do, something just as good or better. A different book to write or publish, a different illustration to use. A different way to do things, such as the author taking their own photos, or using drawings instead of photos. I can always think of many alternatives, and so can everyone else in the business who has a modicum of imagination and experience.

I have no problem with people voluntarily offering their work for licensing via the Copyright Clearance Center, or any similar opt-IN entity that may someday be created. I have no problem with the establishment of some registry that records the copyright holder’s current name and address—the US Copyright Office already does this at the time works are registered.

I DO seriously object to any involuntary registry that would force copyright holders to enter their work or lose their rights, whether the work has just been created or whether it was created decades ago but is still under copyright.

Another reason I think I may not want to continue writing or publishing is I spend increasing more time just defending my right to own and charge for my own work, and increasingly less time actually creating that work. My mental image for that is a B-movie one, where the guy has only one sword with which he vigorously whacks at attackers from all sides.

Frances

Actually the exact status of collectives like SoundExchange is a question I cannot answer but they sure do behave like the worst sort of compulsory ‘statutory’ licensing body.

The USA is the real ‘target’ . In the view of the collectives you are (like Australia)”backward”, you do not have have enough mandated licensing ‘services’. In Canada right now the collectives have a problem; Anything too anti-competitive and people will go over the border. Thus they are mostly reduced to making demands on things like schools and university’s , things that can not just up and move.

The point of the attempt to impose the UKs version of artist resale royalty on Australia (and Canada) was to try and influence the US.

The UK scheme came with a caveat; If you cannot get the Americans to adopt the UK scheme by 2012, we will harmonize with America. Currently the UK scheme dos not apply to dead artists. About 75% of the total resale market (by Value) is resales of dead artists . The UKs death duty’s on the transfer of title makes the forced sale of inherited pictures a common occurrence. Most of the buyers of these pictures are in America. At the moment the sales take place in the UK and support a thriving industry ; the biggest art resale market on earth. If the royalty was applied to the sale of dead artists in the UK but not in New York , the sales would move to Where the buyers are = Death of a thriving taxpaying UK industry.

John,

Wow. But the UK artist scheme lost out in Parliament, right?

Fran

John,

But for a picture, surely whether the buyer was in the UK, the US, or Europe, could the seller not take the picture across the channel to any European country, cut the deal with the buyer there, put it in a crate, and ship it to whatever country the buyer lives in?

I have no objection to taxes on the resale of art if the artist gets the proceeds, but I fail to see why the proceeds should go to an intermediary licensing agency or to any government.

You mean in Australia? We have a scheme of sorts ; it is not retrospective and it is not compulsory. Canada Is not doing it at all and New Zealand canned their scheme before it got going.

Jo Cave the CEO of Viscopy described the Australian scheme as ” completely pointless”. From the point of view of the UK collectives this is provably true. Cave was formerly CEO of the UKs Design and Artists Collection Society (DACS).

Australia’s parliament has plenty of faults and its share of self serving-for ‘hire’ type pollies . But most of our pollies are there out of a sense of public duty. The Committee Had ; A QC , A Successful business woman, A medical specialist and A professional Union rep, each one of them could earn many times more money for a lot less grief in civi street. We Felt honored by their interest in a matter that was not exactly the GFC.

surely whether the buyer was in the UK, the US, or Europe, could the seller not take the picture across the channel to any European country, cut the deal with the buyer there, put it in a crate, and ship it to whatever country the buyer lives in?

Obviously if the buyer is outside the reach of the royalty - effectively outside the EU- the resales will tend to leak. There is some sort of tariff on the re importation of art into the UK (and EU). These days there are not a lot of cashed up buyers in the EU/UK.

The EU has had resale royalty’s for decades and that is why the action moved to where the buyers where; the UK.

The European approach to ‘rights’ is very different to the common law approach. The Resale scheme involves a clash of the concepts behind the ‘code civil’ and the concepts of common law. They are not all that compatible - after all, the Code Civil was originally the creation of a dictator. Most Europeans would love to wind the scheme back ,it has done real harm to the young for years. Most of the money is paid to the grand children of Picasso and Matisse.

John,

But what is the system in the UK and how do they think they can impose it on other countries? Or do they still think they can impose it on other countries?

In the US, if you get permission to reprint a work, or part of a work, or produce a derivative work, this is sometimes called a license in the publishing industry. Generally, US publishers who want permissions contact the copyright holder directly, or the copyright holder’s literary agent if they have one, or their publisher if the publisher has the contractual power to license those rights. The copyright holder can charge whatever fee they want for permissions—anything from free to exhorbitant. I think literary agents may take a cut, and the publisher of the original work may take a cut. But whether someone takes a cut, how much, and what for, depends on the precise contracts the creator of the work agreed to with the agent, publisher, etc.

US copyright is a bundle of many different rights. The creator of the work can do things like, agree to a contract where the publisher is allowed to produce or license rights to translate the work into every language but one the copy right owner is fluent in (because the copyright holder wants to reserve the right to do that translation personally).

Stallman’s “copyleft” is merely a licensing agreement the copyright holder enters into voluntarily, to allow people to create derivative works without paying to do so. It is entirely legal under current US copyright law and has been for my entire life (probably well before that). Anyone can voluntarily permit such uses, but no one is forced to and unpermitted creation of derivative works is illegal.

Which is the way things should be. Personally, I don’t want anyone else’s paws on my stuff till after my copyright expires.

John,

I have no objection to the heirs of creators of works getting royalties. I have no children or grandchildren, but if I did, I’d want to leave them some money. If I’d invested in real estate or stocks instead of book publishing, the US government would not step in and declare those assets did not belong to my heirs (though there are US estate taxes). Generally, creators of works earn significantly less money than members of other professions, therefore allowing their heirs, as well as themselves, to earn money if they can seems only fair. Also, the heirs getting paid is a financial incentive to keep the creator’s works in print, finish their unfinished works, use their letters to write biographies, and create derivative works such as movies.

The whole so-called “copyright reform” movement seems to be about punishing writers, artists, composers, and other creators of works. Somehow, we are supposed to be less deserving of income and long-term investments (our copyrighted works) than members of all other professions. I really fail to see why I should be a slave for either corporate or individual “fat cats.”

Another facet of the pizza argument:

If you eat a dinner, go to a movie theater, or attend a concert, after a couple of hours the experience is over.

If you buy a book, you can read it as many times as you want. You can sell the used copy. The things you cannot do are copy the work, and create derivative works from it.

In spite of that, I constantly get screaming, raving, whining, and threatening entitlement arguments from readers. I normally start a new book as soon as I finish an old one: This time, I’m waiting, and looking for something else to do.

I’ve completely had it with serving these little, well, the word I want to use is probably banned on this forum. I do not want anything to do with my readers and I do not want to do anything for them.

I have no objection to the heirs of creators of works getting royalties.

Fine provided the buyer knew about the contract before they purchased .

Why the State (mandated authority) should be involved is totally beyond me. In the UK so far %50 of all the royalty money collected has been paid to just twenty individual artists. Resale royalty’s go to artists who have sold a lot of art. Resale royaltys are paid to exactly those artists most favored by the market.

Regarding copyright I agree- Its an individual right.

The copyright “debate” is clouded in a lot smoke and slippages as to what copyright is. In Much of Europe copyright has been compulsory licensing ( often explicitly redistributive) for a long time. The web is connecting together things that are not always all that compatible.

If ‘copyright’ was A picture it would have many multiple vanishing points -it would be Cubist and fugue like . The collectives keep running around trying to hide all these different view points and restore the single authoritative single view point. I dont think much of their long term chances

John,

The single authoritative viewpoint should be the copyright holder. The creator of the work, or at least the publisher or agent to whom they have assigned partial control of the work or to whom they have sold it outright.

I agree that these schemes just seem to award more money to the people who are already getting the most money. It’s one thing if a few creators of works become incredibly successful by merit. If they are that good they deserve it. I don’t grudge them sheer luck, either. But I firmly oppose any system set up to be stacked against most creators of works and in favor of a few, or their large-business representatives.

Not quite on topic (do we have a topic any more?), but the proposed Google Settlement has gotten many average readers thinking Google will give them all books free, and they are absolutely gleeful. The battles I’ve been fighting with readers for some years, have become much worse with the public awareness of the proposed Settlement.

My work has become an uphill battle against Google (who will wipe my business out as soon as they post even one of my works), my readers, everyone. There is no reason I should continue fighting it, when I could get a better-paying job with corporate benefits. Indeed, I’ve HAD several better-paying jobs with corporate benefits in the past. Work for fun? Are you kidding? It’s not fun to be constantly belittled, mocked, jeered at, threatened—and stolen from. I’m seriously tired of being on e-groups and hearing “Ha-ha-ha, we’re going to COPY anyway!” and hearing Google’s constant pronouncements about how they will take over all copyrighted works. The constant worry about when they wil post my books, the dread of seeing my readers pronounce their glee at grabbing my work because it’s been authorized by Google …

I used to love my work, every facet of it. But now I want out of publishing.

Frances Grimble:

Not quite on topic (do we have a topic any more?),

If so, it no longer bears much relationship to my original blog post up top. Per the comment policy, this thread is now closed.