Have at it.

Barbara Tuchman’s history book, The March of Folly, is essential background reading for the GBS. Oscar Wilde once famously said, it is only the superficial who do not judge by appearances, the mystery of the world is in the visible. Taking Wilde at his word, the GBS is simply an incomprehensible, circular folly.

Can anyone shed some light on the potential implications of the Skyriver antitrust suit against OCLC on GBS? I missed the case at the time (thanks, bar exam!) but have become very interested in it. Basically, Skyriver alleged anticompetitive conduct and resulting harm from OCLC’s abuse of its dominant position in the interlibrary loan, overall integrated library services, catalog management, and related markets by manipulating prices, tying, anticompetitive policies and refusal to deal with commercial firms, retaliatory and intimidating conduct to preserve its market share and more. Plaintiffs also claim OCLC is an essential facility, although this is an unfavored doctrine under antitrust law if I remember correctly. There are state law claims as well. A judge recently granted OCLC’s venue transfer motion to send the case to Ohio from California. The original complaint is available here.

A comment on this site alerted me to the change in the OCLC-affiliate exclusion in the amended GBS settlement, presumably in response to the Lyrisis rejection; however, I can’t find additional reference to OCLC in many/any other places related to the settlement, other than debate about the technological merits of Google and OCLC’s data sharing agreement. Also, if OCLC prohibits its member libraries from sharing data with for-profit entities, as the complaint alleges, then the OCLC-Google data sharing agreement seems pretty inappropriate despite its (presumed) utility. I’m wondering how the GBS settlement could/would be affected if Skyriver succeeds in enjoining OCLC’s allegedly anticompetitive conduct. Any ideas?

James you stated that under the settlement that google intended to sell “access” to the books, Is access different to ‘copies’.

“Access,” as I have been using it, means you can point your browser to books.google.com and view the pages online, one at a time, from Google’s servers. A “copy” is a physical book, or an e-book downloaded to your computer or e-reader.

However, readers could print pages off one by one. They could also get the pages out of their browser cache. My readers would do so, depend on it—and then pass the files around to everyone they know. But, keeping my books in print format only damps down piracy because then they’d have to scan it.

James

“your browser to books.google.com and view the pages online, one at a time,”

Is that- down-loading a copy , one “physical ” page at a time or is there some sort of ‘copyprotect’ to prevent the sort of things that Frances alludes to ?

Second question- It seems likely that many of the books could be already advaliable on the many academic reasearch servers and/or on servers that are in places such as India and NZ that are not parties to the contract. How would the settlement affect these alturnative ‘publishers?

Frances

All said: There is a cost/benefit aspect to this; copying one page at a time and then stitching it back into a book format is fairly, tediously, labor intensive. If you can afford a reasonable computer and broadband, the time involved might be worth more than the cost of legit purchase .

John,

I know a lot about my readers’ copying habits, considering these are frequently discussed on their special-interest e-groups, and have been discussed for years.

Most of my books are modular. They contain sewing patterns, each of which typically occupies several pages. A number of these would appear, entire, in Google’s default 20% view provided with any user search in Google Books. If someone can search for and download whatever pattern(s) they want at a given time, free, they will see no need to ever buy the book. And no need to buy separately provided portions of a book, should I ever choose to sell those. My readers are already routinely doing this with other people’s books on the current Google opt-in “Partner” site, and on Amazon’s Search Inside. They also often offer the downloaded material free of charge on their special-interest e-groups, which typically each have several hundred members. They advise each other on those same groups about where material can be pirated and how and how easy and fun it is. Not just my books—everyone’s.

Not every book is read from beginning to end. Many nonfiction works are used in a modular way, or only for lookup/reference. I may be the only person who’s read any of my books entire.

My readers do not typically stitch together e-books this way, but college students do often get together in groups and stitch together textbooks this way for the use of the group. They call it distributed downloading.

Apart from ethics, no, I’d never spend the time to do this. But in spite of all the whining about prices (books are actually a very affordable means of education and entertainment), people have other motives for piracy. It makes them feel clever—like consumers using a 25-cent-off coupon to buy toothpaste, which doesn’t do anything real for a personal economy either. They adore the feel of getting freebies. They resent authors and publishers (I hear a lot of that), and feel they are personally triumphing over those greedy, grasping creators of works. They feel justified, often arguing that “the publisher wouldn’t have put it out there if they didn’t’ want us to download it.”

So yes, people do stitch together books. Furthermore, aside from distributing copies to friends and e-groups, people upload the entire book to torrent sites.

John,

Also, my readers spend a lot of time downloading genuinely free material. For example, publicly funded museums often post photographs of exhibits in addition to a glossy color catalog, which for a large exhibit is often a rather weighty (or very weighty) book that contains solid informational essays. Most of these museum publications are of very high editorial and production quality. They can be bought online with the click of a mouse, not only from the museum, but from Amazon and other booksellers. The online photos are low resolution, and have to be downloaded one at a time. Yes, there is site ripper software out there, but my readers are not high-tech enough to know about it. They’re not even high-tech enough to use a Kindle or an iPad—every time something is issued in e-book-form only, they complain about there being no print version and do not buy it. But they will spend hours downloading online photos. Whenever one of their hard drives crashes (they’re also not high tech enough to back up), they bemoan the thousands of photos they lost.

Frances

Obsessively frugal hoarders of 25 cent coupons are nothing new. One Aunt ,when she died, had enough rubber bands and bits of string to supply several offices for decades. She had little impact on sales of rubber bands - she kept them to herself.

Selling things that can be easily copied and then freely and widely redistributed , is not a business plan.

I assume that what Google plans to sell is not really access to individual pages; Rather that it is planning to sell “access” to specialized contextual search engines that can produce cross collated results of apparently unrelated pages. (And also provide ‘author- voice’ results.) The sort of algorithm that could tell you that Edgar Allen Poe was the ghost author of a book on shellfish.

I would also assume that Google hopes to sell the very targeted audiences that this would generate to specialist advertisers.

For this to work there must not be much in the way of alternatives.

John,

Most members of my audience are obsessive hoarders of patterns and pictures, which they expect to be free because they can so often get them free, legally or not. They will spend hundreds of dollars on material for one dress, then complain publicly if they can’t find a free pattern. Like many people in our current culture, they place a low value on information.

You do not need to speculate much on how Google is likely to display books for sale. Go to www.books.google.com and click on the Advanced Search button. Click on “limited preview and full view.” Start searching on titles you know to be copyrighted. You will at some point find some with a limited preview. Search within them and see what is displayed and how much of it. See what ads are displayed next to the books. You will find that Google has mass-sold ads for companies such as Amazon, likely to be of interest to any reader no matter what the book. Google makes all the money from those ads, even if the publisher does not sell many or any books through Google Books.

The publishers have permitted these previews. The Settlement, however, would allow readers to view 20% of a book at a whack. I assume later they can come back for more.

E-books are new and publishers of many sizes are experimenting with many sales models. They currently tend to subsidize e-book sales with those of print books, but this does not work if the only or main edition is an e-book. They give away e-books to help sell other books in the same line of books, but this does not work for smaller publishers—or, I’d argue, for the authors whose books were given away. They toy with free tasters, platforms, DRM or no DRM, and a variety of author royalty and book-marketing models.

All that is natural industry evolution. A lot of it may not work. Publishers and authors will lose money on some strategies, even ones that worked well for other publishers and authors. But the important point is:

If a publisher and/or author have control over the experiment, then they can quit pursuing an avenue if it does not work for them.

But, the proposed Settlement grants Google the right to sell the book for THE REST OF ITS COPYRIGHT TERM. That means if Google sells lots of ads, and the publisher and author sell few books and even lose money through continually paying Google’s proposed Book Registry, THERE IS NOTHING THEY CAN DO. They can’t pull the book from Google display, they can’t push for a share of ad revenues, they can’t sue. If the Google Way does not work for them, tough. Google only cares if it works for Google.

One thing Google wants is to standardize books. Books are craft projects. They are not only written on a custom basis, they are edited, designed, illustrated, and marketed on a custom basis. Custom decisions are made for printing and binding, even if hundreds of thousands of copies are printed after these decisions are made. Books have different audiences. Different formats and list prices are profitable. There are plenty of marketing methods that work just fine for publishers of my size, for their books and their audiences—but not for my books and my audiences. And I’ve been doing things that work fine for me, for years, and some other publishers tell me they cannot market successfully (or at all) by my methods.

And we are all absolutely correct. You can debate all you want whether a given book is fine art. But they are all at least handmade crafts, of, when professionally done, medium to very high quality. Google sees them as mass produced and mass sold. To Google, the whole process is like churning out a million bottles of Coca-Cola all alike, all at the same price, and all marketed to the same people the same way.

You need to remember that Google is primarily a bit-pusher and an ad seller, not a creator of works. Oh, they write software, but they don’t have a clue about, or respect, the individual creation of the books and art they are so anxious to sell ads next to.

John,

Forgot to say, there is specialized “site ripper” software to get the files for a whole book off either the current Google Book Search/partial view, and (I think) Amazon Search Inside as well. The Science Fiction Writers of American submitted printouts of the websites of several sellers of these to the court, along with the SFWA’s objections to the proposed Settlement. These looked like polished little packages with slick interfaces, ran about $25, and were marketed in a professional-looking way. They could probably download a book in a few minutes with no stitching of files.

Fran

Frances The settlement is a dog of an idea and I think that just about anybody who is alive and can read has gotten out of the room.

Whilst it may be true, All of this makes little medium (let alone long term) term economic sense.

If Google was to facilitate books become freely available all over the place, would any of the bigger publishers like amazon let google any were near their product?

Whilst this would not stop Google from exploiting its opportunities with small presses and self publishing , it is hard to see the cost/benefit advantage to google.

Most thieves are conservative about property values; If its really free ,its not worth stealing.

John,

The largest US publishers have already cut special deals with Google outside the Settlement, just as Hachette is currently doing. But no one else knows what all the terms are, except they are almost certainly better than the Settlement.

Google may make most of the money off selling ads and let the publishers take any revenues from the book sales. Or the publishers may be sharing in the ad revenues. Some publishers currently think giving away e-books sells more print books, which I think unlikely to work in the long term, but some of the large ones are experimenting with that model. Google may well believe in it too—it’s always worked for them as a search engine. As long as the large publishers’ special deals allow them to pull books from free display if they want to, this may not harm them much in the long run. They are also apparently cutting their own deals for how much free text Google displays. Each large publisher may have cut a different, deal with Google.

Amazon is a bookstore, not a publisher, and Google is entering into direct competition with them. I think Amazon entered antitrust objections to the proposed Settlement.

The point is: The large publishers are not harmed by the proposed Settlement because it explicitly permits them to cut more favorable deals with Google. It is authors whose rights have reverted, their heirs, and small publishers like me who would be bound by the unfavorable terms. People like me can’t cut special deals with Google. So for example, my books (or large portions of them) could become a free Google giveaway to entice readers to the book sales site in the hope they will then buy larger publishers’ books, just as Baen is giving away the older works of some authors as free e-books to sell the new books by other authors. Look, the big publishers and Google are happy to sacrifice other peoples’ business interests to promote their own.

The terms of the proposed Settlement give Google considerable power to change their business model for the way they sell MY books, and those of other authors and small publishers, without our consent. Google can experiment with a model that works for them. It’s just that the models that make Google the most profit are unlikely to be the ones that will make small rights holders the most profit.

John,

I should add, sure it’s worthwhile to Google to give away millions of books to sell ads because Google paid nothing for them, except a few dollars apiece for scanning. I think it was less than $10/book. Google did not pay to write, edit, index, illustrate, design, or print the books. If the theft means the author and/or publisher do not make back their investment in the book, that is not Google’s problem.

And Google has only promised the copyright holders $60/title in compensation for copyright violation—to be paid at some undefined future date. That’s assuming they opt into the Settlement. Most have not, and will receive nothing. The copyright holders are not guaranteed any revenues from ads, they are not guaranteed any sales revenues if no sales are made, and as far as I recall Google made no promise to actively sell them.

So Google, a company with billions in annual revenue, paid maybe $10 apiece to scan millions of books, and is offering an additional $60 per title to the small portion of rights owners willing to sign a very unfavorable permanent contract.

If the Settlement is approved, Google will get to say they have an enormous amount of content, millions of books, that no other search engine has and no other online bookstore has—or ever will have, because most of the others can’t afford to fight all the copyright suits. Sure, many of those older books are in themselves of interest only to a handful of scholars, English Lit majors, or quirky enthusiasts. But the sheer quantity would make Google the place everyone came first for information. The value of that in ad sales would be incredible.

And, the fact that Google thinks those books are worth stealing is amply demonstrated by the fact that they’ve already done it, are currently doing it, and have announced they will continue to do it indefinitely.

John Walker: Is that- down-loading a copy , one “physical ” page at a time or is there some sort of ‘copyprotect’ to prevent the sort of things that Frances alludes to?

It will work rather like Google Books does currently. Users will be able to see images of the individual pages of the book. How many pages, and which ones, will vary from book to book. Books under copyright will be subject to some forms of protection, e.g., one can’t simply highlight words to copy them. The determined reader will be able to save permanent copies to her computer, for example. by taking a screenshot of her computer as she looks at each page.

It seems likely that many of the books could be already advaliable on the many academic reasearch servers and/or on servers that are in places such as India and NZ that are not parties to the contract. How would the settlement affect these alturnative ‘publishers?

The settlement does not purport to have any effect on them.

James,

Do you have any info about what Google plans to do in regard to the books they scanned, whose copyright owners opted entirely of out the Settlement?

Fran

I do not know. I think there are two likely possibilities:

(1) Google will treat these books as it does books under copyright currently: snippet view only unless a putative copyright owner affirmatively grants more extensive permissions.

(2) Google will treat these books as though it had received a request to make them No Display and turn off snippet view for them.

It is always possible that Google will make more or less extensive use of these books than these two possibilities. However, I haven’t heard anything from Google to suggest as much, and (1) and (2) both reflect plausible continuations of its current practices.

James,

Could a DMCA takedown notice be used effectively to have Google remove those files entirely?

Thanks,

Fran

James,

To clarity: By “snippet view” do you mean the currently “partial preview” where numerous adjacent pages are effectively available for free download? For example, one or two entire patterns from one of my books?

Fran

Frances Grimble: Could a DMCA takedown notice be used effectively to have Google remove those files entirely?

The DMCA process is neither here nor there. Google does not have a DMCA immunity in the first place for Google Books, as the content was uploaded by Google itself, not by third parties. A notice might spur Google into action, or not, but it would not be because it has any legal effect.

By “snippet view” do you mean the currently “partial preview” where numerous adjacent pages are effectively available for free download?

No. “Snippet view” and “Preview” are different. Snippet view presents only about a vertical inch of any given page: just a sentence or so before or after the occurrence of a search term in the book’s text. “Preview” is as you describe: full pages, up to 20%, as agreed between Google and a putative copyright holder. (The settlement, if approved, would let Google provide Preview for out-of-print books without specific approval from a copyright owner.)

Interesting, and thanks.

Fran

Frances

“Amazon is a bookstore not a publisher”
The boundaries are blurred in what Lessig calls a read/write society; bookshop/library/consumer and printing press can be all in one.

The determined reader will be able to save permanent copies to her computer, for example. by taking a screenshot of her computer as she looks at each page.

Is that all that different to the current situation in a bookshop/library?

How would it suit any commercial interest to make it too free and easy?

James

OCR type technology will eventually make a screen capture jpeg equate to a text file , no?

Re other digital ‘libraries’, Googles exclusive right to control access to particular books dos not look all that exclusive.

John,

The scale of piracy is a very important factor on its negative effect on sales. Just because a publisher may be financially able to withstand some photocopies made at libraries for private use, does not at all mean the publisher can withstand the entire book available and easily locatable on the net, and downloadable in a few minutes.

The ease of piracy is a very important influence on how many people do it—how much labor it takes to pirate the files and how available the material is after someone else has done the work. So, a great many people who would never take the trouble to go to a library, scan the pages one by one, and stitch the PDFs together, will happily press a “download” button and wait five minutes for their free books.

That’s the difference. Scale really counts.

Were the GBS ‘went wrong’, why it did not sort out the questions over fair use that were the starting impulse.

• It was not opt-in - it was not based in free mutual association.

• It was captured by groups that are equally hostile to both Fair use and Copyright as an individual contract.

And it corresponded to the peak period of the attempt to unify all of the EU’s very disparate approaches to copyright/transaction fees into a rather ‘code civil’ approach.( this ambition suffered from the same cart before horse drawbacks as the Ero; It in the EU lacked widespread support, It was a WE know best scheme. )

Frances

The Situation with these Giants could be a situation were Australians might opt for free mutual association.

Tom Uren was to become a respected Australian elder statesman. In 1945 he was a young British POW on a Japanese ship that was crowded with Allied prisoners . The ship was torpedoed and sank. He found himself alone, floating in a sea of wreckage, dead bodies and the odd struggling man. Then he saw a stange ‘silhouette’ on the horizon, he swam towards it, and realized that the silhouette was actually a rough raft cobbled together from bits and pieces. On this raft groups of men were organizing what they could and doing what they could for the wounded. When Tom reached the raft a man in a slouch hat reached out and helped Tom aboard, the man said to Tom: ‘Come on board mate, this is no time to be on your lonesum’

John,

Sorry, but I thought I answered your other question, about “making it too free and easy.”

If Google makes more money giving away books and selling ads next to them, and making themselves the dominant search engine because they have millions of copyrighted books’ worth of unique content no one else has, than they would selling the books:

Then it entirely suits Google’s interests to give away the material. As I’ve said, they invested nothing in its original creation, so they can’t lose.

It’s that simple. Really.

Frances Why would a commercial operation provide ” a “download” button ” . Once it had sold the ‘button’ it would be out of business. “If you sell eggs you do not sell the chickens”.

frances

No disrespect , but Google is a very big business. Orphan books and little self-publishing entities would not buy Sergi that much Pol Rodger. When the settlement seemed to cover the whole world it might have made sense. But by now?

John,

Go to www.amazon.com (the US site). They have a feature called “search inside.” Do some searches on a topic of interest and you may get a lot of free info. This is because some publishers have voluntarily allowed Amazon to upload entire books. They think giving away stuff sells stuff. I disagree, at least for most of the ways it’s done, but it’s their marketing decision for their books, not mine. And not Amazon’s either, because they do it only with consent.

More important, there are ways to pirate entire books from Search Inside and Google Previews, including inexpensive little pirate programs that have been made easy to use even for the technically clueless. As I said, the Science Fiction Writers of America submitted the advertising for several as part of their objections to the court.

You seem to expect both people and businesses to behave rationally. Often they don’t. I personally find it easier to just accept that the world is not rational and that I can’t make it rational.

Your war story is heartwarming BUT: Nobody needed Google to help them produce e-books or POD books. Any individual writer—let alone any publisher—can produce either or both kinds of books and sell them through public venues such as Amazon and others, and on their own websites. Furthermore, lots of authors are already producing and selling books that way—not just new books but those same older books that Google so often and so tiresomely asserts need the “life breathed into them.” Google got into the publishing business way late and as I said, no one actually needs Google. They did offer an opt-in service called Google Partners, which still exists. Apparently not enough people joined it for Google’s taste, so they started preemtively scanning books.

Even the publishers who are so happy to have Google’s scanning services could have scanned the books themselves, the cheap methods being probably to send the material to India or induce authors to scan their own books.

As for OCR, check out the OCR of the Google public domain books. It’s not especially accurate unless a human proofreads it. Publishers routinely use proofreaders, but Google does not want to pay individual attention to books. I’ve done OCR myself, with good software, and I find it easier overall to just type in the text.

John,

Are you asserting that Google has not scanned copyrighted books, in print and out of it, whose copyrights are owned by authors, their heirs, or micropublishers? And that Google is not continuing to scan copyrighted books? If so, could you point me to any evidence you have found that Google has not scanned so-called orphan works or has no plans to use them?

Are you asserting that Google does not think the proposed Settlement will gain them anything? If so, could you point me to any evidence you have found that Google has dropped the case?

Fran

John Walker: OCR type technology will eventually make a screen capture jpeg equate to a text file , no?

The technology is already there. The principal questions at this point are ease of use/automation and error rate.

Are you asserting that Google has not scanned copyrighted books, in print and out of it, whose copyrights are owned by authors, their heirs, or micropublishers? And that Google is not continuing to scan copyrighted books?

Assuming that they are ’ scanning whole library shelves’ It is certain that they are scanning “copyrighted books, in print and out of ..”. However Scanning a book (without consent) is not the same thing as distributing (without consent) copies of that book. It is what use(s) google actually makes (or clearly plans to make) of these scans that is for me the issue.

Re groups (and war stories) GBS has stirred up a lot of self-organising writer and right holder groups who’s main purpose has been to contest the claim that the authors guild represents anything much at all.They have been successful in their aim of denial of control; The claim of class representative status is threadbare by now. What is the contract worth to google by now?

I cant remember how much google has agreed to pay but; if it was say 300 million, normal shareholder-investor expectations are for about %10 net return on a investment. This would equate to 30 million net PA . Assuming that google works on volume and low margins, they would need these orphan and not so well known books to generate a lot of velocity. Obviously the more in demand a copyrighted book is, the less likely it is that it would be covered by the settlement contract.

The settlement has a ‘we are here because we are here’ type of folly look. The March of Folly is particularly sharp on the lead up to the American revolution. The tariffs that were the underlying cause of the revolt were very counter to the interests of Britain. The American ‘Homespun’ response caused a massive drop in the export of manufactures by Britain to the American Colonies, for every pound that the tariffs collected the manufactures of Manchester lost 10s of pounds. The tariffs also turned conservative men like Washington and Adams into arms bearing revolutionaries.

Re

The technology is already there. The principal questions at this point are ease of use/automation and error rate.

Expect it wont be long . The usual rule about computer technology applies; it is not that long ago when a SE20 was top of the range.

Both selling copies and/or exclusive access look tricky these days. Read-write cultures previously were cultures were making a copy was a laborious project. I feel there is a problem in Mr Lessig’s analysis. If “somebody keeps stealing all the eggs , then you have nothing to sell … you cant afford to buy chook food … no eggs”

The evidence that web users are willing to pay much for information is not good. Rupert Murdoch’s attempts at pay-walls have ,so far, not paid off. At the moment for the average web user Google appears to be a free service that dos no harm , attitudes could change.

John,

According to librarians I have talked to, Google is scanning whole library shelves. Google demands that its library partners submit a huge volume of books for scanning, and the librarians have no time to check copyright dates.

What matters at this point is not whether you or I think the Author’s Guild represents all or most US authors (I think they don’t), but what Judge Chin thinks.

Also, what matters right now is not what the proposed Settlement should say but what it does say.

Here’s a Google income statement:

http://investor.google.com/earnings/2009/Q1googleearnings.html

There are other income statements online, just muck around the net. Point is: Google has lots of money.

I like defined problems and plausible, practical solutions. What do you suggest as ways authors and publishers can be fairly paid for their work, with or without Google?

Fran

Frances

Something I forgot. The US treasury is trying to ‘inflate’ its way out of the current financial problems. Expect that the Bond Market will respond to this as it has always done- it will raise bond rates- the supply of money will get dearer (as well as hard to get at any price). Even businesses as big as Google need working capital. Several hundred million tied up in orphan/minor titles that are not worth much on the open market might in the future come to be seen as a questionable asset choice.

What do you suggest as ways authors and publishers can be fairly paid for their work, with or without Google?

Good question - how to do ‘copyright’ in a read/write society? The best enemy of bad ideas is good ideas.

A very closely related question is - What is fair use in a digital age?

Frances the link dos not appear to work. It appears to be 1 am by the blog clock in the US? You should go to bed.

Google and Money! An interesting piece from the December 9, 2010 issue of The New York Review of Books.

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

John,

It’s three hours earlier where I live than where James lives.

Search the web for Google earnings statements, you will find them.

Google already spent the money to scan those orphan works. If they want that investment repaid, they need to make money from them. If approved the Settlement would give them the right to do so. There is every indication that Google is still pursuing approval of the Settlement. Google has also tried to push “orphan works” legislation through Congress. This is not just all in our imaginations.

As for the “digital age,” my aim is to earn as much as I can from the works I have already invested a huge amount of time and money in, even if piracy (Google’s and/or other people’s) puts me out of business at some point. I am not going to get gooey-eyed over reader’s “needs,” considering their aim is to get paid for their own work and not pay me for mine. In other words, I have zero interest in extending the scope of “fair use” beyond what is already in US copyright law.

Fran

James

When I first read your blog it was the GBS: Richard Epstein Weighs In piece. Exactly what is ‘the settlement’ and who it dos and dos not affect is only a bit clearer now than it was then.

I have zero interest in extending the scope of “fair use”beyond what is already in US copyright law .

The law has not been updated for some time it needs some legislative thought , not just patches upon patches. The rights of others = your own rights. Fair use is the other side of the copyright coin.

John,

Yes: The rights of others equal my own rights. I need the maximum protection for my work to get the maximum revenue from it. Other creators of works are equally welcome to the same protection for their work.

I have not suffered one iota through not being able to use other people’s copyrighted work for free. I can invariably think of numerous other things to do. When I have had to hire out work I could not do myself (such as translations from languages I do not know), I have always been willing and able to pay the going rate for it.

Of course, that may be because I do have enough professional expertise, creative impetus, and ethics to actually work on publications. But, I have not the slightest sympathy for people who are too stupid and lazy to even think up their own blogs and tweets and who whine about how copyright law should be changed to enable them to steal material for those.

It is against my economic interests to let other people use my work without paying. I will fight any and all attempts, legislative or piratical, to let them do so, to my last breath.

John,

I will add that the people I see crying out to use other copyrighted authors’ work free do not work in the profession—aside from publishers who want to use the proposed Google Settlement to obtain e-rights they did not obtain in the contracts with authors. All I see is a bunch of readers who want endless freebies. The rest of us can actually do the work and actually respect other authors’ work.

Fran

Oh yes, and for the common argument about how much the industry is suffering because writers must ask for permission to use copyrighted material, check out some statistics:

http://frankfiore.wordpress.com/2009/07/22/how-many-books-were-published-last-year/

Doesn’t exactly look like a dead industry, does it?

Fran

Frances

I need the maximum protection for my work to get the maximum revenue from it.

This involves the state- there has to be a cost benefit calculation as to how much policing we can afford.

I agree -there is no crisis big enough justify the draconian ‘solutions’ being offered.

Re Google.

Google is not an it, it is a large corporate/bureaucratic entity.

Was discussing the Viscopy business with various parties to the affair (now that the dust is settling communications are improving) Suddenly realised that all of them were saying: “I thought that it was your idea” and/or “It was some sort of incomprehensible conspiracy.” If a poor, at the design level, idea gets taken up by a bureaucratic management system , the system will endlessly try to efficiently implement nonsense; until it runs out of energy.

If you are even half right about the ease of turning access to individual pages into downloading whole books , then the only way Google can protect its ownership of the scans it has paid for is by not letting anybody look at them.

Creating Audiences and then selling them to advertisers is Google’s core business , the books are tools of trade, not trading-stock.

John,

It is governments who legislate copyright law. I certainly do not agree with everything the US government does, but it’s the best system we’ve been able to work out. At least I can vote for, and write to, the politicians who are supposed to represent my interests.

The alternative is some corporation(s) or organization(s) merely doing what they please without my getting any say. Which is definitely not in the interests of all parties, and most likely primarily in the interest of that corporation or organization.

In other words, if US copyright law is to be changed, I want it done through proper Congressional procedures.

Google doesn’t own any copyright to the scans of copyrighted books. That is exactly what it is trying to aggressively force, by means outside proper legislation. Yes, it will use the books to sell ads. There is no reason why that should be allowed outside clearly public-domain works, and works that have been opted IN for that use. Google could make plenty of money from just those, but Google very aggressively wants everything: Their “Universal Bookstore” (excuse me, they’re calling it a library).

Fran

This a bit off the Hachette so Its posted here I have read the guides; I have not seen a clear statement of what Google is paying the libraries for, what the ‘invoice’ would state- is it the supply of scans? , is it for the work involved in making the scans ?, or is it for exclusive library borrowing rights?

We have the full agreements between Google and a number of its partner libraries posted on the Public Index.

Here is a link to a report regarding the purchase and use of e-books in public libraries. It is not about the proposed Google Settlement, but I think it does show many important concerns motivating the Google Library scanning project.

http://www.cosla.org/documents/COSLA2270ReportFinal1.pdf

The link to this was accompanied by a survey asking for opinions on a proposed project for libraries to publish e-books for authors, offering as incentives:

The publisher gets editing services (but it is easy to hire freelance editors), cataloging data (which normally costs me $50-$60 per title if done by an experienced freelance cataloger), and reviews (but no guarantee of reviews in the prestigious publications that shun self-published books; if you just want any kind of review there are bloggers and newsletters everywhere).

In return, the publisher would have to donate a free copy to every public library and, apparently, allow it to circulate without any protection from unlimited copying by readers. The publisher is not guaranteed any payment whatever, except, perhaps, if there is enough reader interest, “some percentage” might go back to the publisher to “support future work.”

The person who posted this explicitly said large publishers will not agree to an arrangement to circulate unlimited free copies of e-books via libraries, so they want to turn to self-publishers.

I don’t think many self-publishers would accept this deal. They can, and do, already publish e-books and sell them on Amazon and in other Internet venues. But, it shows where libraries are at (saving money).

Fran

Thank you, James.

Thank you, James.

I had forgotten how good and clear the Elephantine piece is.

My tentative conclusion is that “me-too settlements” are highly unlikely; the procedural bars are serious and the plaintiffs in the present suit would have an incentive to fight similar settlements for others.98 Thus, taking the settlement’s practical exclusivity as a given.

It is sort of curious, feel that another reason why competitive bids are unlikely is because it looks like a dubious investment - The damage being done to copyright (and to a degree, the market value of copyrights) makes the control over what is being purchased and the value of the investment…. problematic?

One of the main libraries in the Australian National University is 5 stories high (with basements as well)has a lot of staff , if that could be largely compressed into a server somewhere in goole, it would free up a lot of real estate and reduce labor costs.

Landmark UK ruling on licensing of newspaper web content I would imagine if someone in the UK was to file a lawsuit against Google Books, this would help their case. Also, I see Gillian Spraggs has a “new” web site, Action on Authors’ Rights.

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

Actually; is Gill OK? have not herd much from her for some time.

As for the ruling , It is fair use to copy a small part of books for the purposes of review and essays -articles. Is this not the case with headlines

It is pretty obvious that the ‘unfair use’ as originally brought against Google had a real chance of derailing the plan to industrially scan all the worlds books.The supply of Money for Google is no big problem, however the individuals right to say no is a problem that money cant fix.

For the licensing industry the individuals right to say no is also a big problem. They have been trying to do away with it for years- a lot of mutuality of interest lies under the shape of GBS.

John, English copyright law functions very differently from U.S. copyright law. Among other things, it is more willing to recognize compilations of facts as being copyrightable, and it has no concept of fair use. (“Fair dealing” is the closest equivalent, but much that is fair use is not fair dealing.) It’s best not to reason by analogy or assume that what one knows about copyright in the U.S. carries over.

Isn’t that the rub?; A lot of the ‘terms’ have specific local usages, and these local usages can be mutually exclusive… but the web is global. Hence the Elephantine chimera quality?

Economically speaking ,until they came up with the idea of compulsory servicing, copyright was of no personal interest at all . Please forgive me, there are times when I cant quite take in what I am seeing.

John,

Moved from the GBS ebooks thread per James’ request: I don’t think it is a bad idea for a government to fund the creation of books or art. I don’t think they are necessarily of bad quality, and I don’t think (unless they are public structures) that the government needs to oversee their creation.

What I do think is that, at least in the US, with the federal, most state, and most city governments heavily in debt, and many services such as public transit being cut and the debts mounting anyway, the money just is not there. And is not likely to be there for a long time. And even when it was there formerly (to some extent), the public proved that it does not usually value books or works of art enough to vote for money being allotted to those instead of things like public public transit.

I don’t think it is a bad idea for a government to fund the creation of books or art.

Not against public funding.

It is not a substitute for markets were people individually freely offer to pay what they think its worth, for what they individually value. The fact that what they value is often not to the taste of some economists is one of democracies saving graces.

Public funding of the arts has a design weakness. Because there are many more applicants than available public funds it has to create a means of designating the many areas that are not qualified for funding. This process, based in the creation of selection criteria and peer review, is critical to the working of the system - it quickly became the end rather than means. Fighting over control of the right to represent the ‘arts’ at the table deciding what are the “advanced art” pre-selection criteria that pre-determine eligibility is the king maker position in the funded sector.
The right/power to set the criteria for the pre-selection of eligible entrants for public funding is a much greater power than the power to choose amongst the tiny number of entrants that make it past the initial cull . And power has its financial rewards.

The Australian Funded sector was created in great haste between 1970 and 1974 , in 1975 it was made a autonomous statutory area. It was soon realized that a mistake had been made; the reverse economies of scale applying to management in the sector were a big problem as early as 1976-7 and the rampant cronyism and corrupt practices had, by 1975-6 , resulted in two Auditor general investigations. But being a ‘hands off’ statutory area little changed , it was in the ‘too hard basket’. By now ‘management’ consumes virtually the entire budget. It has proven to be politically impossible to change, reforming the management of the sector = government interference in Art. It has been going round and round in self-referential circles for decades.

Frances regarding Googles scanning of millions of books, A -bit off topic so I have put it here

From James introduction to D is for Digitize

Sag predicts “… the likely outcome of the underlying lawsuit—a fair use ruling in favor of Google..” If hes right it raises the question why did Google go for the settlement? Is there something about the additional bits that have been added that is still, even in the opt-out version, worth all the grief? Opt-out may not be perfect , but it undermines the value of the settlement to google. I understand that that both the biggest English speaking market in the world and the culture that most values education are not parties to the deal.

India and China are big and getting bigger every day , if they are not on-board it ain’t worth the bytes its written on.

John,

I do not view arts funding as any kind of substitution for people offering their work for what the market will bear. As you said, there is a pre-selection process by government. Anyway, even in the most prosperous times there is never even remotely enough money available to support anywhere near the number of works that are constantly created on a commercial basis. I don’t mind the idea of a little money being available for scholarships and grants though. It helps a few people and is not done anywhere near often enough to create much bias toward one style or quality of work.

Frances

The experience down here is- once you create these autonomous arts things it is virtually impossible to clearly put an end to them, all you can do is put a fence around them and remain vigilant. Viscopy for example was created on a boozy lunchtime whim , it then accidentally somehow got some government backing and low and behold ; The ‘problem’ of the financial viability of a member service provider organisation that had few members and who’s services were not really needed, was created. Viscopy is still sort of going- its hard for phantoms to die , they aren’t real. Even though Viscopy lost the tender process and has spent the past year covertly trying to wreck the implementation of the Governments scheme , one branch of a government department has continued to provide financial support to Viscopy.

The argument that the current situation with copyright requires the replacement of rights with hypothecated taxes paid to the same people advocating the solution is self serving Bulls**t, nothing more. Canada has had a hypothecated tax on blank CD media for decades it has not benefited Canada’s Musicians and like all protective tariffs it has discouraged the industry from adapting to change.

The Australian High court (majority) ruling (1991?) that the the blank tapes levy was too tax-like to be part of the copyright act, put a stopper on the push by collection societies for widespread transaction tariffs on the use of things that have already been purchased.

Australia is regarded by the societies as “backward on copyright”. And it is true that many things down here are not what some might regard as “typical”. I have read that The ACTA discussions have not resulted in any actual changes to the laws of Australia. This may or may not be true but it rings true- the Department of Foreign Affairs and Trade (DEFAT) is very good at the polite masterful ‘No’.

I have not yet got to the chapter on Harmonization , expect it will be interesting. Harmonization cuts both ways.

john walker:

as long as the price is reasonable

The absurdity is that you’d already have had to pay for your DRM-protected ebook, and there is no sum of money which would enable you to legally buy a non-protected one. I, for one, would find DRM quite disruptive to my being able to use an (offline) ebook, considering that I run Linux.

There is a lot information failure in current copyright situation. It is creating a lot of anger/confusion amongst consumers (and some producers). The asymmetry of information that the double-speaking, totally impenetrable nature of the sales contract between the producer and the purchaser creates is generating a lot of anger and resentment. The contract these days can mean just about anything that suits at the time - it can be redefined anytime without consent.

Mind, Microsoft’s Xbox Kinect was totally hacked within days of its release. And according to the Guardian, MasterCard has had ” DDoS (distributed denial of service) attack on the financial site, bringing its service to a halt.” These ongoing attacks are in retaliation for MasterCard refusing to accept payments to Wikileaks. Master card is not small beer, if it can be successfully attacked who is invunerable?

Too much control can have the opposite effect, ‘the best fences are the ones that cannot be easily seen’

From Tom Rubins Copyright in a Networked World —worth reading.

…this is shown by an example from the Google Books litigation. Buried in the proposed settlement is an effort to create a registry of books that can be used by ebook sellers and others. Now, Microsoft is on record as opposing the proposed settlement for many reasons, but the idea of creating a registry for book information is a good one. Microsoft has invested substantial resources working with publishers and other content owners seeking to develop such databases. It’s the kind of infrastructure that will be necessary to allow books to be bought, sold and licensed in the Networked World.

While the private sector has a very important role to play in developing such systems, it is also important that the basic ground rules and requirements for such registries be shaped in public, multilateral fora like WIPO and its member states, rather than in settlements of class actions by private parties motivated by self interest rather than the public interest.

There are many possible ways to accomplish this. It should be open to all kinds of legal mechanisms – such as voluntary agreements, public-private partnerships, regulations and even statutory amendments – whatever might help create systems that serve the public interest in making copyright more accessible, more sensible and more effective in the Networked World.

If formalities are really needed it must be done by legitimate elected governments and not by self appointed class collectives.And it must not be a one class fits all monopoly over representation of what are after all -commercial interests.

Ron — Russell McOrmond on compulsory monopoly ‘formality’s’ and whose interests they serve.

To get a feel for what this may be about, take a look at some European countries. There composers and performers are given a choice: become a member of a collective society and get royalties from various uses like radio, or use licenses like Creative Commons licenses to pre-authorise some uses royalty-free. You are given no ability to mix and match to do what you feel will best promote your own business interests.

Collectives have been calling for extended licenses in Canada, which would allow a given collective to license all works of a given class of works. Authors are given an opt-out situation, not an opt-in. This is as legitimate as the other forms of negative option billing which have been made illegal in other contexts.

Since Collective Societies are practically defined in the copyright act as legalised cartels, we need to be far more careful when they are going after competing business models rather than simply collecting royalties in situations where royalties are appropriate. All the books, including the methods they use to calculate each royalty cheque, should be public.

Main point of this comment? Don’t assume that audiences of copyrighted works are the targets of these policies. Sometimes it is intermediaries like collectives promoting policies which harm the interests of the copyright holders they often claim to be representing.

Ron,

What, technically, does your running Linux have to do with not being able to deal with DRM?

John,

There are already several large and well-established “registries” in the US publishing world:

• The US Copyright Office

• R. R. Bowker’s Books in Print

• Large, widely used wholesaler databases such as Ingram’s and Baker & Taylor’s

The main objectives, actions, and fees of the US Copyright Office are publicly legislated. They register not only books but all other kinds of copyrightable works. Publishers voluntarily enter data for most books in Bowker’s Books in Print. Registering your data in Bowker is free. Likewise, the majority of books are listed in Ingram’s and/or Baker & Taylor’s databases. I have to list with Ingram as a condition of selling through them and they charge me a flat, one-time $50/title.

Also, the Internet makes it easier than ever before to find copyright holders.

Note that Google has set up its e-book store without any need whatever for the Book Registry proposed by the Settlement, and it would be useless for them to have that in addition to the database they are now using instead.

Frances I Do agree.

Australia actually has a public lending ‘right’ registry it is directly administered by the relevant federal government department . This is a government department which can be (and regularly is) forced to give detailed answers to the powerful (and mostly bipartisan) Senates Estimates Committees.

If there is a need for ‘registries’ they should definitely not be run by would be commercial user rights groups, and they need clear evidence that there is a pressing national need and a lack of workable alternatives.

Frances:

What, technically, does your running Linux have to do with not being able to deal with DRM?

No one supports DRM under Linux. Adobe considered doing it in 2007 but got cold feet. There are sometimes workarounds which “kind of” work using a framework for running Windows programs under Linux. Not something which gives one the kind of warm, comfortable feeling which encourages reaching for one’s wallet.

To jump into your thread with john walker, I feel that having either a fixed period for copyright starting at publication (and having any kind of commercial use of the work be defined as publication) or having a registration requirement with current contact details in a publicly open database is an extremely important part of a healthy copyright regime. Otherwise, it can become extremely difficult to discover if/when a work falls into the public domain (or becomes orphaned, in the case the law would be changed to facilitate the use of orphaned works).

BTW, Ingram’s database isn’t open to the general public; I presume Baker and Taylor’s isn’t either, as far as I can tell from perusing their website.

Ron

Fixed period for copyright starting at publication (and having any kind of commercial use of the work be defined as publication) or having a registration requirement with current contact details in a publicly open database is an extremely important part of a healthy copyright regime.

Desirable -It is easy to forget that schemes that collect lots of royalty payments for un-contactable people are intrinsically redistributive. In these situations the ‘problem’ of undeliverable royalties; ‘What to do with them’, quickly becomes the plumiest payment ‘problem’ of them all .

Ron Kaminsky Did you have a look at the piece -Protecting property rights in a digital world-

The complex inter-connected nature of the information embodied in the web of operating systems , recordings , books , publishing , hardware .. fascinates me.

Ron,

Publishers seldom have insurmountable problems locating copyright owners. It is the general public—most of whom do not actually want to reprint any works or publish any derivative works—who are making a huge fuss over it. Plus entities such as Google who are not even trying. Are you actually seeing the “Big Six” publishers ranting on the net about “orphan works” and how hard it is to find their copyright owners? Even the ones such as Dover who publish many reprints?

There IS a fixed period for copyright terms. This has varied over time in the US, but information on those terms is readily available. They have never been infinite. For detailed information on US copyrights, I suggest that you consult one of the readily available references such as attorney Stephen Fishman’s The Copyright Handbook: What Every Writer Needs to Know, published by Nolo Press.

If you are in doubt whether a work is in the public domain or do not want to bother looking for the author, you always have the very easy alternative of not using it. After all, you can always read a work, use the information, and publish critical commentary well within the bounds of copyright law.

During the period in which copyrights had to be renewed, they were renewed in the US Copyright Office, which still has the renewal records. Also, with the Internet, it is easier to find people and businesses than ever before.

Bowker’s Books In Print is available in many libraries and is more complete than the Ingram and B & T databases. However, many bookstores subscribe to the Ingram and/or B & T databases and a motivated clerk can look up information for you.

Publication, under US copyright law, does not legally need to have any commercial intent whatever. The work merely needs to be exposed to the public. Furthermore, works can be registered with the US Copyright Office before publication.

Ron,

I don’t run an Apple but I know it runs on Linux. Are you telling me there is no software than runs on the Apple that implements any kind of DRM or licensing restrictions? Somehow, I doubt it.

For many years I’ve used PCs running Windows. I run Windows Office, a lot of Adobe and Corel publishing-related software, and I have a firewall, antivirus, and a few miscellaneous programs. I run both Explorer and Firefox, and both Thunderbird and Microsoft Outlook.

Almost all these programs require me to register them. There are restrictions on the number of users (depending on the software). I have to pay for upgrades. I have to pay the software manufacturers when I need tech support from them.

I buy my software on disks if at all available that way, and I store the disks as backups.

And, so what? Big deal. I register the program when I install it, and then I don’t have to worry about that again for several years, until I upgrade. If I need more than a single-user license (two licenses maximum, so my husband can run the same program on his machine), I buy the license or another single-user copy of the software.

I’m not looking for software manufacturers (or book publishers) to apologize for insulting me by imposing licensing restrictions, and making me spend five minutes registering the stuff. I’m not looking for a warm, cozy feeling. My relationships with Microsoft, Adobe, etc. are not personal. They are businesses looking to make a profit, and I don’t care. I just want the software to have all the features I need, to run reasonably fast given the right hardware, and to be reasonably unbuggy.

Frankly, it seems completely unreasonable to complain because you cannot get infinite use out of one purchase of software, or because you have to spend a few minutes registering it.

Fan I am no teckie and could be wrong.. but Have used Macs for decades, mac OS 10+ is underpinned by unix but is not in it self the same as unix.

There has been for decades a great little 3rd party graphics utility ( as sort of ‘leatherman’ -small but can do much) for MAC that is freely available in a minimum form . The Full featured version costs about $45 , support is surprisingly direct and personal and his attitude about upgrades is fair. I have in twenty odd years never seen a hacked version of it. Speaking personally I feel a lot of respect for the author - I would not accept a hacked copy- and am happy to contribute to his work on the next improved version, I guess that many others feel much the same.

John,

Some people try to set up a moral system where the “little guy” (the author, programmer, or other creator of work) should be supported, whereas it’s OK to rip off big businesses. However, the big businesses (publishers, software companies, etc.) are paying a lot of the “little guys” and providing their essential support systems. When I worked for larger publishers, our aim was to support the authors as far as possible, to produce the best books possible, and to sell them to as many readers as possible. Now that I self-publish, my aims are exactly the same. It’s silly for pirates to rant about “publishers keeping books from readers.” The whole point of publishing is to make the information or entertainment widely available to readers. Sure, readers do have to pay to support the publication of the book. But if they think the price of one book is excessive all they need to do is buy a cheaper book from another publisher.

Frances
The moral system I was referring to was “love each other as I have loved you”.

I on the whole agree with you -though big businesses recent propensity to take big bonuses at the very same time as the biz is being bailed out by the public is not exactly endearing.

James Re - GBS , is there some sort of ‘finish your drinks’ cut off rule for court cases in US law - In theory; Could a case like GBS still be a source of income for lawyers in a decade from now?

John,

The honor system of copyright doesn’t work any more. Respecting other people’s copyrights will not make people in general (they are often not creators of works anyway) have any more respect for yours. And giving them lots of free support and information only makes them feel entitled to get everything free, rather than encouraging them to buy, and works to devalue books for the industry as a whole.

Frances:

I don’t run an Apple but I know it runs on Linux

Er, no. Modern Apple desktop/laptop computers (as opposed to iWhatever) run an operating system called “OS X”, which is somewhat based on something called “BSD” which is a kind of Unix (not Linux, which itself is a different kind of Unix).

Apple hardware can be convinced to run Linux, but most people don’t do that.

As for why I use Linux, it’s simple. Three main reasons. First, it’s open, so I can fix things which don’t suit me or customize them if I want. Secondly, I largely don’t have to worry about viruses or other malware. Thirdly, I have the impression that it would cost me a lot of money to get the same functionality for what I do, which isn’t what most people do with computers, namely, developing programs for esoteric math calculations. I’m not totally sure about that, since there are more and more open-source tools/programs which can be used under Windows (practically all the tools can be used under OS X, but you end up paying the extra money for the hardware, then).

Frances, I heartily agree with you on something: the ever-growing wealth of free (as in beer, mainly, not speech) information and entertainment on the net will certainly “work to devalue books”, and has already started to do so, in my opinion.

I know that I, personally, read a lot less nowadays and spend a lot of my time, instead, participating in various web forums like this one.

When I was young, a library was a special place for me, and I would spend hours and hours in them. My children have no understanding of this, growing up in the era of ever and ever more immediate gratification. And to some extent, they are justified —- time is important. I also hardly ever go to libraries now, except if I want a quiet isolated work environment. If I need an journal article for my work, I can usually have my workplace buy it for download from the net, or order it via the net if not.

And yet, I sometimes feel a bit sad, for what was and is no more.

ron There is a Unix -terminal command prompt- sort of thing in the MAC OsX system I accidentally stumbled upon it , and you can run windows ( really run- not an emulation) if you want to. Curious as to what sort of esoteric math calculations?

john walker: I think this is getting much too off topic but I want to experiment with taking some of our conversation “offline” from this forum. This link leads to a Google Docs document which is editable by anyone following the link, my answer will be found there.

When reading Douglas Fevens’ last post about how he contacted the libraries to which he donated his book to try to prevent them from digitizing it, I suddenly realized something. His desire that his book should sit on the shelves of those libraries, but only in a form which makes it hard for people to find the information inside the book (i.e., they cannot find out that his book is interesting to them by using modern digital search techniques), is completely analogous to the desire of most people to be able to walk around in public places, without having just anyone (including the government, without judicial review) be able to know where they are by, for example, massively running facial recognition algorithms on surveillance camera output (in a place like England, where surveillance cameras have become pervasive).

Of course, it’s very unusual for an author to want that kind of anonymity for his book, but it gives us an interesting convergence of seemingly different societal issues caused by the advance of technology.

“Practical obscurity” also comes up in connection with criminal records and other information that may be both legally public and hard to research in practice. A common view is that technologies are threatening to eliminate that category, making information either secret or public.

In response to Peter Hirtle’s comment. I am as tired of writing “Wisconson” and “Google” as you are of reading about them from me Peter, but that is the crux of the matter isn’t it? The dispute as to whether or not Google & Company is infringing copyright has been on going for years and will not go away until there is a decision in that regard, and even the settlement, if approved, will not settle the matter. (For those new to the Laboratorium my point of view is here, here, here, and here.) Peter, if you could cite the law that gave Google & Company the right to digitize and commercialize my in-copyright work without my permission, I will stop posting to the Laboratorium. When Google & Company is in the news I remind people that not everyone is pleased that Google did not come by their complete corpus by totally honest means, in other words the foundations of their “great library” are not built on the rock of sound copyright law and international treaties, but on the sands of their and their supporter’s opinions.

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

Yes. The common thread between copyright and privacy on the Internet is a desire to control the dissemination of one’s information.

Google & Company knew before they digitized their first in-copyright work that not everyone would agree that it was fair use. If respecting the copyrights of others was so important to Google & Company in building their “Great Library” why did they not digitize just one of their supporter’s books and then get themselves charged for copyright infringement and have the courts decide if they were guilty or not? By just going ahead and digitizing in-copyright works whole-hog without the owners permission they acted like school-yard bullies, doing what they wanted and taking what they wanted, regardless to the rights of others.

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

Douglas Fevens: Why did they not digitize just one of their supporter’s books and then get themselves charged for copyright infringement and have the courts decide if they were guilty or not?

That doesn’t work; the lawsuit would be dismissed. If it really is a Google supporter suing, then the two sides of the lawsuit aren’t actually opposed to each other, so it isn’t “adversarial” and the court can’t properly hear it.

Actually James, I was thinking of Google getting charged by the US Department of Justice for willful infringement. Or perhaps there is another way to get an opinion of the court?

Douglas Fevens: Actually James, I was thinking of Google getting charged by the US Department of Justice for willful infringement.

This is very rare, in part because the courts have construed “willful” in the criminal context to mean that the defendant knew that what it was doing was unlawful. Google has a plausible fair use defense for its scanning and searching and definitely seems to believe that its interpretation of the law is right. You would disagree. But there is a disagreement to be had.

This matters, because the DoJ tends not to bring prosecutions in copyright cases when the law is in doubt in this way. Instead, they more often bring prosecutions when the law is relatively clear and the key issue is proving that the defendant actually did what it’s charged with. The very fact that you would like an opinion of the court to establish whether Google’s conduct is or isn’t legal shows why this is better sorted out in a civil lawsuit than in a criminal prosecution.

Douglas Fevens: Or perhaps there is another way to get an opinion of the court?

This is hard, for the same reasons as in my previous comment. United States federal courts are actually constitutionally prohibited from giving “advisory” opinions.

Douglas,

There are those who have argued that exactly what Google did is digitize the works under a use that might (or might not) be considered “fair”—to display “snippets—with the intent of then later negotiating a book commercialization project with the parties who sued them.

James

Google has a plausible fair use defense for its scanning and searching

Begs the question: Why did they agree to settle ? - why not just tough it out?

Severing the nexus between consent of the individual right holder and payment by the user, to that same individual right holder, introduces hypothecated tax-like qualities that are sufficient ,under our constitution, to prevent it being a part of the Copyright Act. It needs special stand alone legislation by parliament .

Just curious; What dos your constitution have to say about hypothecated taxes?

John Walker: Begs the question: Why did they agree to settle ? - why not just tough it out?

First, there are all the usual reasons to settle rather than litigate:

• To avoid risk.
• To avoid expense.
• To be able to move forward sooner.
• To build goodwill.

Then, there is the basic fact that the settlement gives Google far more than it could have won in litigation. Given your extensive participation here and commentary on the settlement, I’m surprised you didn’t already know this.

Given your extensive participation here and commentary on the settlement, I’m surprised you didn’t already know this.

James

Sorry, I was trying to think about it as though it was still in the unknown future - non ‘teleological’ . What is now known is of little value in understanding the motivations of past social behavior .

The reasons you give are are conventional reasons for settling litigation… But Google was already big , rich and very sure of the rightness of what it was doing. There are also good counter arguments against giving in to slightly opportunist litigation. With respect, the reasons you give have never been that compelling . Is it possible be that sure about Googles motivation for a settlement that effectively dodges answering the original fair use question?

the basic fact that the settlement gives Google far more than it could have won in litigation

Is the exact reason the process has hung, no? Its not not exactly resulted in :

•To be able to move forward sooner.

Prior to the widespread 1980s free market reforms and trade liberalisation, Australia had a fair bit of both compulsory trade unionism and a lot of large protected, industries. When the managements of what are effectively monopolies over the supply of labor meet up with the managements of what are effectively monopolies of capital, the talk soon turns to collusion.

john walker: Why did they agree to settle ? - why not just tough it out?

As I’ve posted here before, I still smell the same idea as Pamela Samuelson had, except my suspicion is based on second-guessing William Patry’s motives in all of this.

Sorry I have had a bad flu and my brain may have turned to mush, but — if the original ‘fair use’ action was as flimsy as is claimed , then it was a very poor foundation to stick so much of such an elaborate superstructure on. Like a leopard skin pillbox hat “it balances on your head like a mattress balances on a bottle of wine”.

I may have also asked this before but- Procedurally can a court approve a ‘settlement’ of a ‘non issue’ , when that settlement has such wide reaching consequences on things that had nothing to do with the original ‘non dispute’?

I might go back to bed.

… Deep inside my heart. I know I can’t escape.

Oh, Mama, can this really be the end.

To be stuck inside of Mobile With the Memphis blues again …

NY times September 21, 2005 “Writers Sue Google, Accusing It of Copyright Violation “

….Daniel Hoffman, a former consultant in residence at the Library of Congress and the author of many volumes of poetry, translation and literary criticism; Betty Miles, an author of children’s and young adult fiction; and Herbert Mitgang, the author of a biography of Abraham Lincoln as well as novels and plays. Mr. Mitgang is a former cultural correspondent and editorial writer for The New York Times.

All three were pretty old - two were born in the twenties -are they still alive? Is there anything much left of the original or has everything been quietly substituted.

The Authors guild are described as : “Authors Guild, a trade group “

Google is reported as saying:

“We regret that this group has chosen litigation to try to stop a [the google] program..”

Google gos on to make statements that are by now familiar in their slippery bluffing GBS quality.

“And, if they choose, authors and publishers can exclude books from the program if they don’t want their material included. Copyrighted books are indexed to create an electronic card catalog and only small portions of the books are shown unless the content owner gives permission to show more.”

Mr Aiken’s reported words were in 2005, very clear:

But Mr. Aiken said that offer turned longstanding precedents in copyright law upside down, requiring owners to pre-emptively protect rights rather than requiring a user to gain approval for use of a copyrighted work.

I think the fair use issue had real legs, and that was the reason it was worth paying for those legs to be nobbled.

Actualy I think my brain has turned to mush -trying to make sense of GBS, makes tea leaf reading look rational.

Disaster is rarely as pervasive as it seems from recorded accounts. The fact of being on the record makes it appear continuous and ubiquitous whereas it is more likely to have been sporadic both in time and place. Besides, persistence of the normal is usually greater than the effect of the disturbance, as we know from our own times. After absorbing the news of today, one expects to face a world consisting entirely of strikes, crimes, power failures, broken water mains, stalled trains, school shutdowns, muggers, drug addicts, neo-Nazis, and rapists. The fact is that one can come home in the evening, on a lucky day, without having encountered more than one or two of these phenomena. This has led me to formulate Tuchman’s Law, as follows: “The fact of being reported multiplies the apparent extent of any deplorable development by five- to tenfold (or any figure the reader would care to supply).

Barbara Tuchman

john walker:

if the original ‘fair use’ action was as flimsy as is claimed , then it was a very poor foundation to stick so much of such an elaborate superstructure on

At least one legal expert, Matthew Sag, seems to think that the original fair use justification would have had a good chance of passing muster in the courts. You can read his paper (part II deals with this issue) by downloading it from the link available at the D is for Digitize post.

john walker:

There is a new version of Tuchman’s Law, which is being promoted by Bruce Schneier. It goes something like:

If you see something dangerous in the news, you need not be afraid of it happening to you —- the mere fact of it being considered newsworthy means that it is a very rare event compared to a vastly greater number of dangerous, common events (an example he gives: being killed or injured in a traffic accident).

I hope he forgives my mashup of his idea. You can read it in his own words here.

Ron

As a counter-counter factual - if the fair use issue had gone against Google , it would have been very damaging to all of googles operations. The chances of success for the authors may have been low but the risk, the scale of potential damage to all of googles operations, if the authors got lucky, were astronomical.

Ron

Mark Lemley commented to the Wall Street Journal: “The consequences of a loss for Google are enormous. If the publishers were to actually prevail in this lawsuit, I think it would be essentially impossible to maintain a search engine.” Mike Madison, Google Print II, Madisonian.net (Oct. 20, 2005), http://madisonian.net/2005/10/20/google-print-ii/.

It might have been a very unlikely result … but… history is often a story of the unexpected.

Merry Christmas and best wishes for the New Year.

john walker: It might have been a very unlikely result … but… history is often a story of the unexpected.

And here we interestingly converge again with my other reply to you: as Bruce Schneier would point out, the risk to Google is weighted by the probability of the bad result, and therefore still very small —- and the upside, even without the settlement, was obvious to them.

Hope you’re feeling better, and Season’s Greetings to you and everyone else.

Ron

Calculations of the risks of rare but - seriously dead- results are notoriously difficult for humans to deal with.

If all of what Mr Sag is saying is true the the initial litigation looks like ; a fishing expedition, is there some initial test to filter against class actions obvious potential for use in vexatious litigation and anti competition ways?

James finishes his introduction by asking if their is a need for google?

The court room in NY is looking a lot like the court of Pope Alexander
From Les Murrays “the Quality of Sprawl”

Sprawl gets up the noses of many kinds of people

> (every kind that comes in kinds) whose futures don’t include it.

Some decry it as criminal presumption, silken-robed Pope Alexander

dividing the new world between Spain and Portugal.

If he smiled in petto afterwards, perhaps the thing did have sprawl.

Without china and India it don’t mean much.

“The Quality of Sprawl” is my favorite poem.

It ends with these lines:

Sprawl leans on things. It is loose-limbed in its mind.

Reprimanded and dismissed, it listens with a grin and one boot up on the rail

of possibility. It may have to leave the Earth.

Being roughly Christian, it scratches the other cheek

And thinks it unlikely. Though people have been shot for sprawl.

Frances

The honor system of copyright doesn’t work any more. Respecting other people’s copyrights will not make people in general (they are often not creators of works anyway) have any more respect for yours..

I can only speak for my self but my audience are my fans , I treat them with respect and they on the whole reciprocate. But it is a matter of faith.

John,

The pirate rhetoric is that they will observe copyright if they happen to feel like it—if they know and like the author, if the author “respects” them by not objecting to thefts, etc. Neither a legal nor an ethical system can work if it is only observed by parties when they happen to feel like it. Neither can any personal relationship be assumed when mass-manufactured items (books) are routinely sold to thousands of perfect strangers (readers) via numerous third parties (wholesalers and retailers).

The world is not like a little village where everyone knows you and wants to be kind to you for that reason—if you are also very nice to them, therefore generously they will not steal from you (very often). The world is like a very large city, with an enormous number of inhabitants. Most of whom are perfect strangers, most of whom are looking out for their own interests, a fair number of whom are dishonest if they can justify it to themselves and do it without repercussions, some of whom are downright criminal, and some of whom are nuts.

What keeps you from being stolen from and/or assaulted in city streets is not the fact that most of the people you pass know you or ever will know you. It’s because they are restrained by ethical systems that do not presume any personal relationship, and by legal systems that punish them if they mug you and get caught.

We have the legal systems for copyright, but the ethical ones are crumbling.

Frances I am not at all naive about ‘peace love and understanding’….. But trust is the essence of all social systems—- especially business.

Cost benefit comes into it, how much policing can we afford? Most people are not sociopaths- with respect, P2P theft is not exactly Cannibal Lector territory , what should we do with all of the thousands of them -transport them all to the antipodes ?

Personally- Mr Sags ‘fair use world ’ would have been for me ‘near enough’ - the problem with the settlement is that it goes way too far , it is too clever by half and too complicated . In the words of Les Murray’s father the Settlement is; “‘too close’ it can’t say.. ‘near enough’”

John,

“There are so many of us, we’re unstoppable” is another common pirate argument. They’re not. In order to stop them:

All creators of works need to do as much as they can, everywhere and every time they can, to assert their own right and need to get paid, and to educate the general public that they do real work requiring real expertise and that they invest real money. Publishers and those working for them (editors, etc.) need to do the same thing.

Creators of works need to be vigilant about piracy, issue takedown notices wherever they can, and sue when they can afford it.

Creators of works, and publishers, also need to be vigilant about all proposed so-called “orphan works” bills, and other bills introduced in Congress/Parliament/the equivalent to reduce copyright protection. They need to write letters to their political representatives explaining how these proposed bills will harm them.

Creators of works need to financially support reputable organizations working legally, politically, and in other ways to protect copyright.

Re comments here & here. —- Fair or Foul? The Unanswered Fair Use Implications of the Google Library Project

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

But Frances - if they keep on passing on copies to their mates, what do you do with them?— Jail, confiscate the house/car, what?

There is a need to clarify/update the boundary between ‘fair enough ’ and ‘not on’ in a way that is likely to be accepted by most as ‘something I can live with’ and something that is reasonably understandable- because otherwise it will cost more than it returns

Frances Grimble:

With my knowledge of modern technology, it seems clear to me that in the not so distant future it will be impossible to police copyright without producing a police state. Even now, most of the ideas which you propose are not very effective. One can see the writing on the wall when media publishers themselves post their content on the net while disguising it as pirated content:

In one e-mail Google highlighted, Viacom’s marketers wrote “we’ve uploaded boatloads of clips onto YouTube for distribution.” Google claimed that Viacom “regularly uses stealth marketing to get its content onto YouTube…Viacom has altered its own videos to make them appear stolen, like footage from the cutting-room floor so users feel they have found something unique.”

The only idea which I agree will have some positive effect towards your goal is educating the consumer public.

By the way, the current developments which make you bewail your business situation have nothing to do with many, if not the majority, of the features of copyright which might be reformed. Some examples: shortening the term; requiring a printed work to contain contact information for the rights holder valid at the time of publication; limiting liability for the reuse of orphaned works if a codified reasonable due diligence procedure has been followed.

By the way, the current developments which make you bewail your business situation have nothing to do with many, if not the majority, of the features of copyright which might be reformed. Some examples: shortening the term; requiring a printed work to contain contact information for the rights holder valid at the time of publication; limiting liability for the reuse of orphaned works if a codified reasonable due diligence procedure has been followed.

This is the business of Government legislators, not the biz of an unrepresentative , unelected ,’class representative’.

Something that has not gotten as much attention as it should is how the settlement is breaking down the separations of powers , between Government and the Courts, the settlement goes too far past normal case law traditions. Courts should be conservative , radical changes to law should not be done at the drop of a hat by the unelected .

Jeremy Phillips- The 1709 Blog

Friday, 24 December 2010 Artist Resale Royalty, Harmonisation and a Comment from Down Under Following Monday’s post (“Artist’s Royalty Right: not as much impact as was hoped/feared”), The 1709 Blog has received the following thoughts and observations from a pair of Australian artists, Dr Anne Sanders and John R Walker,

john walker:

radical changes to law should not be done at the drop of a hat by the unelected

I agree, in theory, but when in practice the choice is between these changes being done by the unelected and unlobbied vs. the elected and lobbied, I think I prefer them being done by the unelected.

Perhaps Americans are much easier to herd than Australians, eh?

Ron,

Actually, Ron, I’m not seeing ANY of these things (shortening the copyright term, requiring copyright holders to constantly register contact information instead of requiring the aspiring rights user to take on the trouble of a web or other search, and limiting liability for use of so-called orphan works) being “developed” at all. They are just asserted on the net by people who want to reduce copyright protection. Well, unless you count the two versions of the Orphan Works bill that failed in Congress.

As for Google, I doubt that the US court system will allow one megacorporation to reenact copyright law for its own commercial benefit.

That’s another pirate tactic—asserting there is a huge, unstoppable movement to do all these things, so copyright holders might as well give up now. These things are not actually being done.

Ron,

I will add that objecting to my customers constantly screaming about how little they want to pay for printed information is not, actually, making me “bewail my business situation.” I’m solvent, thank you very much for asking. I don’t even expect any political measures to reduce copyright protection to take place without a huge battle spearheaded by large publishers and other powerful interests.

It’s just that, I quite genuinely no longer want to do anything for readers constantly, publicly, and in-my-face asserting their entitlement. If the cultural attitude is becoming that my profession is worthless, I’m an intelligent, educated person with a number of useful skills and fully capable of pursuing another career. Why not?

Ron,

I also do not expect any of the measures you suggest to reduce piracy by a hair.

As for “modern technology”—I’m living with an artificial intelligence developer and have spent some years as a technical writer in Silicon Valley. So, I’m by no means ignorant of it. However, legal and even informal personal crackdowns are possible and could be pursued to a much greater extent.

I have almost entirely eliminated open piracy on some e-lists of which I am a member (offers of scans of copyrighted books, etc. to the e-list) by the simple measure of publicly announcing I would report such offers to the author and/or publisher. And, I have consistently followed up by doing just that. It has not, actually, proved hard to find these people/businesses in a simple net search. I then email them, saying, “So-and-so on such-and-such email list is offering free scans of your book/article/pattern. Here’s their email address. If they are doing this without your permission, you might want to contact them.” Often the author or publisher does contact them, sometimes even giving permission, often issuing a desist notice. I do the same thing for apparently pirated material I run across on websites.

Granted, private offers may still be being made, but they reach far fewer people. And, they do not lend the aura of legitimacy given by someone making a public offer to an entire list and everyone chiming in “I want one too! Thank you so much for sharing!” (Stealing is not “sharing.”)

If more authors were willing to do this for each other, it would really help.

Ron,

By the way, policing e-mail lists this way worked far better than laying out all my polite, logical arguments about how much publishing costs, why publishers and authors can’t work without pay, etc. Which was my first tactic, and sparked endless arguments where people advanced all their personal justifications for theft, over and over.

Frances Grimble:

Actually, Ron, I’m not seeing ANY of these things … being “developed” at all.

Sorry, I assumed that you wouldn’t advise people to “be vigilant” about a threat which doesn’t exist.

You also don’t address the actual point I was trying to show you: none of those reforms (which I totally agree will remain hypothetical in the foreseeable future) would actually hurt your business model directly. The greater availability of orphan works would hurt you via dilution of your market, but I don’t see this as a justification for you to complain, just as the complaints of horse-driven vehicle manufacturers against automobiles now seem silly in our eyes.

I’m solvent, thank you very much for asking.

And I’m glad to hear that. I was both afraid to ask, and (if you remember) had been given the impression that you were not amenable to being further questioned by me.

I’m an intelligent, educated person with a number of useful skills and fully capable of pursuing another career. Why not?

If you’re unhappy with the reality of current developments, I’d say it would be a lot more logical to “go for it” and try to change your career direction, rather than thinking you have any large chance that you can change the world. And whatever you choose to do, and however much we might disagree on the issues discussed here, know that I sincerely wish you the best of luck.

Ron,

What pirates want is no more “reality” or the “way of the world” or inevitable, than what copyright holders want. That’s just rhetoric designed for emotional impact.

Mid-20th-century works in my field are already widely and often cheaply available. I’ve acquired many without even trying. People pick them up at garage sales, or their dressmaker aunt dies, and they give the books to me. However, I have never wanted to use mid-20th-century titles and probably never will. Their availability, in e-form or not, does not threaten me. Didn’t I tell you this before?

I base my books on works already in the public domain, which have also widely available for a long time. Some have been reprinted by other publishers (and so have many mid-20th-century works, with proper permission). I doubt the availability of the public-domain works will pose much more competition to me than it has ever since I started my business.

However, due to the translations and other significant added value in my books, it would hurt my business if people pirated those. Let alone a large business like Google.

Again, I note a pirate hint in the attitude “If you can’t make a living from your work despite widespread piracy and reduced legal protection, your business (as writer or publisher) deserves to die anyway—and who cares?” As I said, people who want to reduce copyright protection or assert it is outmoded hate writers and publishers, and enjoy feeling they are helping to destroy part of our culture. Why should any writer or publisher want to give such people more access to books? If they hate book so much, they’re probably not reading them anyway. People are willing to pay for what they genuinely want and respect. Why * would* any writer or publisher want to keep working if most readers adopt this attitude? How could they even afford to do so?

I will add that from my observation of what people tend to post on torrent sites, etc., their tastes are pretty much the same as those of the general public. That is, they like new books, often in-print books, with perfectly locatable publishers and authors. They are not lusting after either mid-20th-century out-of-print books or public-domain works.

Google wants the so-called “orphans” because first, the Settlement sweeps in everything published before, what was it, January 5, 2009? Including a huge number of relatively new, in-print books, with rights holders Google could have easily located—if they had bothered to try. Second, Google hopes to make a huge amount of money selling not books per se, but ads next to them. However, I am noting that the many reviews of Google E-Books I have read have been decidedly lukewarm. People have been saying, “Sure, there are millions of public-domain works, but who wants them? And the interface for finding the new books people really want is not as good as Amazon’s.”

And that is why I think shortening copyright terms, legitimizing the use of mid-20th-century works without permission, etc. would not reduce piracy because actually, people don’t typically want those works all that much. Those works have been languishing in used bookstores and library stacks for decades already, with relatively little demand.

Ron,

You also need to understand that, having several hundred thousand dollars of capital invested in my books, I cannot cease selling them even if I adopt another profession. Nor, in the current Gogole-Settlement climate, do I feel it’s wise to put any book of print. There was one I was thinking of putting out of print (I have only about 30 copies left). But now, it seems safest to publish a new edition this year or next year, to strengthen my legal claims of harm if its copyright is infringed.

Once you’ve written a book, you’re pretty much tied to maintaining it, because it can take decades of sales to be paid fairly for your time and financial investment.

Which is why, it is unlikely that the anti-copyright crowd can frighten writers into just giving up and working for free—even in terms of their older books.

Since you’re apparently not involved in writing, publishing, or creating works in any way, I can see that you might not understand copyright holders’ needs and motivations. I would, however, suggest paying some attention to what these actually are before making assertions.

Frances, I never said that copyright reform would reduce piracy. Actually, what I said was that (in the long run) nothing will reduce piracy, except the general goodwill of people (or the rise of a police state).

A general goodwill which, I understand, you don’t believe in —- you seem totally traumatized by your experiences interacting with people who don’t share your views on copyright and who, in your eyes (and quite possibly in actuality), threaten your ability to make a livelihood.

I’m not all that surprised about your current experience with the effectiveness of policing email lists. I’m fairly sure this isn’t going to last very long, what with the current generation of teenagers laughing over the “I’m behind 7 proxies” meme.

As I said, people who want to reduce copyright protection or assert it is outmoded hate writers and publishers, and enjoy feeling they are helping to destroy part of our culture.

I’d be offended except for the fact that your statement makes you look, to be totally frank, delusional (or maybe paranoid —- I’m really not an expert in these things). I assure you that I both would like to reform copyright, and at the same time I do not hate you, nor all writers, nor all publishers. I am not the only person like this. No, Frances, we are not all “out to get you”.

Ron,

Oh, I get it. People who want to reduce my copyright term, evade legal penalties for piracy, complain incessantly about how they don’t want to or won’t pay for books, and assert that all works will inevitably be pirated anyway because “technology” demands it, really respect me, want to pay me, and are not opposing my interests.

Thanks so much for clearing this up. After enduring years of insults I was getting worried.

As for proxies, I don’t see them on e-lists per se because many groups have a rule that members must really be who they claim they are and prove it if necessary—or sometimes even before joining the list. I think that’s a very good idea. Passing laws against companies collecting buying browsing data, let alone selling it and/or aggregating with the data from other companies, is a very good idea. But it’s also a very good idea to prevent people using false IDs on the net wherever possible.

I do wonder about all this, i do not feel like I am surrounded by people who want to steal every thing I own. We spent weeks traveling on our own in south India and we have done the same sort of thing in The UK ,France , Spain and Italy ,all the time alone amongst complete strangers, we survived and often experienced kindness and courtesy. My partner when young lived for some months with the Bedouins in Sinai and survived, she even survived 7 years in London. Of course some places and people need caution but .. please.. a little honey and wax could be helpful.

John,

When very frequently confronted with people who directly assert their right to steal and offer stolen intellectual property, I have to conclude they really do it.

I am sure you personally are a kind and honest person. Butot everyone is. And people should obey laws and ethics, whether they think their proposed victim of theft or whatever is being nice to them or not. That’s why we have laws and ethical codes: Many times the right thing to do is not the thing that is convenient, profitable, or otherwise acceptable. That’s also why we all lock our front doors because if we don’t, face it, sooner or later someone will walk in and steal stuff. It doesn’t offend the neighbors if you lock your doors, or install a burglar alarm. Likewise, any claims of being offended by DRM are hooey.

Ron,

If you are convinced that technology not only can but will induce everyone to steal all the intellectual property they want, without any repercussions because they can use proxy servers, why do you see any need for copyright “reform”? By your lights everyone will get everything free anyway, without those tedious waits for work to fall into the public domain (which you seem to think are overly long) or the burden (which you seem to think is unreasonable) of undertaking any search for the copyright owner.

John,

If you want to see whether people really pirate intellectual property, try some Internet searches for “warez” and “bitorrent”—if you wish, in conjunction with the titles of some popular copyrighted books, DVDs, etc.

Frances a lot of the things you talk about are for the average person very abstract. It is very different to actually breaking into next door , banging the man on the head and stealing his food. Rather it involves things like sharing a movie with your circle of friends, it might be illegal (for perfectly valid and good reasons) but it dos not for many seem an immoral act.

John,

I agree that theft of intellectual property does not seem like an immoral act to many. My point is that (a) it should and (b) regardless it is an illegal act. It is stealing the income of creators of works. An assertion I have often heard made by pirates is if they personally feel it’s moral and legal, it must be. It’s not. People can make themselves feel OK about all kinds of things that harm others and/or that economically benefit themselves. That’s why we have copyright laws as well as many other kinds of laws. You cannot depend on the individual to decide whether a theft that benefits himself/herself, and/or a “gift” of others’ property that results in the nonmonetary capital of being petted by an e-group for “sharing,” is legal.

John,

I’ve also noticed that people who offer someone else’s copyrighted work for copying by hundreds or thousands of others on a public site, call it “sharing with friends.” Even the vast majority of members of a semiprivate e-group are not personal “friends.” That is not to say that copying a work for the use of five genuine personal friends is legal either, but the “friends” rhetoric is often used to excuse massive piracy.

In regards to my comments here & here.

“My sense is that … we haven’t yet thought about the fact that our students do a lot of their learning in virtual environments; that our students just as frequently come in through our virtual front door as our physical front door,” he said. “I think what we need is a design charrette to build this new, thoroughly connected system of legal information for a hybrid age, for a digital-plus era.”— Palfrey Proposes a New Digital Legal Information Environment for the Future Harvard Law School. Emphasis mine.

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

I would also, in terms of writers’ careers, like to discuss something the general public seems to be unaware of: There is a career ladder, which serious beginning writers (whether of fiction or nonfiction) all hope to ascend. Thus, they may sacrifice sleep and neglect their families to squeeze out the first book, but it’s brutal for them and they hope to quit that schedule as soon as possible. They are all dying to quit that “day job,” or at least get a reputation that enables them to get a part-time job related to writing, maybe editing or teaching at a little community college.

The career ladder is to sell that first book—maybe for only a small advance and/or to a small publisher. Then to write a second book and sell it for a larger advance and/or to a larger publisher. And so on, the writer earning more money not only as he or she gains a reputation and a sales track record with which to impress publishers, but as he or she has more books continuously in print, generating royalties, and helping to sell each other.

Which is why many established, older authors are becoming more interested in self-publishing their older books to which rights have reverted and in keeping those books “in print.” Their publishers have already done editing, layout, and so on and typically, the publishers have not come back to try and claim rights to the editing and so forth they have done. It’s a lot easier than publishing a new book.

Back to the career ladder. Some writers, especially of popular types of fiction or nonfiction, hope to someday write a bestseller. This doesn’t happen without a lot of work, and I’ve seen stories of “newly discovered” writers whose books I’ve been buying for ten years before the “discovery.” It’s just that these writers finally signed up with a large publisher willing to heavily promote their latest book, and who think “new” is a good promotional term.

Other things that can happen to writers as they ascend the career ladder is, they can sell rights to foreign-language translations, they can sell movie rights, they can license subsidiary rights to photos, excerpts, or other material in the book (to which they own the rights), etc.

The strategy is little streams of income that come together from different places and increase as more books are published. Even then, most writers don’t make a lot of money, but the bits from here and there help them to get by.

Plus the hope. The hope of finally getting a decent advance or large publisher after years of trying, the hope of hitting the bestseller jackpot, and so on.

Self-publishing works by accumulating sales of books (rather than royalties). And, some writers use it a substitute for that first publication with a small press, as a springboard to selling this book or the next one to a large publisher. In other words, for them self-publishing is the first step in the career ladder.

Does anyone descend the career ladder temporarily or permanently (perhaps because their work has gone out of style, or during a recession) to again publish with small publishers and/or accept smaller advances? Sure—just like people can descent other kinds of career ladders. But nobody wants to.

If an economic system is established where writers (even fiction writers) are not only currently earning no or little income but know they can never increase it (whether because of piracy, the copyright term has been shortened so they cannot accumulate royalties from different books, or whatever), there really is not much incentive to write.

You need to remember that most writers don’t want to just write one book. They want a writing career.

Frances I agree, culture is a complex ecosystem , there is a touch of dangerous damaging imbalance/monoculture about some developments.

Most painters like me use the services of professional representatives ‘gallerists’ , these people put a lot of time and money into nurturing new talent - it often does not pay off , the sales of the rare successful artists help underwrite the costs of developing the next generation.

There is a apparent paradox in this thread: on one hand we worry about loss of control: the threat of pirates & uncontrolled production-distribution But, on the other hand, we worry about empires such as Google getting effective monopoly of control. Can both fears be well founded?

Frances Grimble:

Since you’re apparently not involved in … creating works in any way,

Why thank you, Frances, another one of your wonderful compliments, I guess?

After enduring years of insults

I’m not surprised. You’ve certainly proven you can dish ‘em out yourself like a real pro.

If I were to be given a magic button, which if pushed would rescind the Copyright Term Extension Act of 1998 and the Copyright Act of 1976 in the US and cause the rest of the world to “harmonize” with US copyright law circa 1975, I would gladly press the button. You claim that this means I’m doing this to “feel I am helping to destroy part of our culture”. That’s a ridiculous statement, unless you actually think that nothing created before 1976 in the US qualifies as culture?

Perhaps you could stop ranting about how everyone is a pirate and out to get you, and finally address my statement that reducing the term of copyright (say back to 56 years from the date of publication as it was in 1975) would not hurt your business model in the least. As far as I can tell your first book was published in 1997, and you would be at least in your late nineties, if not older, when its 56 year term would expire. In addition, you don’t plan to have children.

The other reforms I proposed are even less likely to affect you: the second one, requiring valid contact info at the time of publication, wouldn’t be retroactive and would be easily satisfied by someone like you, and the third one only concerned orphan works, which your books are not.

Ron none of this has much bearing on the ‘Google dark-side Empire’ . Personally I can live with more ‘fair use’, its the compulsory collectivization that calls for the Spirit of Chartwell house.

Any way GBS is bad for the head , ‘go for it’ if you must, I am off to make more blackberry Jam.

Frances Grimble:

If an economic system is established where writers (even fiction writers) are not only currently earning no or little income but know they can never increase it (whether because of piracy, the copyright term has been shortened so they cannot accumulate royalties from different books, or whatever), there really is not much incentive to write.

Which is why no books were written in the US when the copyright term was shorter, like before 1976 (or even 1998). Am I missing something here?

I agree that piracy already reduces, and in the future will continue to reduce, authors’ ability to get paid for their work, but instead of assuming, like you do, that this means it will reduce that ability to practically zero, I only believe it will reduce it by some factor which I would guess would not be greater than 50% in the very worst case, and probably would be closer to, say, 20% (i.e., author/publisher income would be 80% of what it is now).

John,

Publishers also often “nurture” authors—or at least, maximize their investments in those authors—by signing the authors up to “first rights of refusal” on the next book and in genres such as fantasy and mystery, even to multiple-book series. The idea is that the first book gets the author reputation and marketing clout that will pay off for the next book. Also, the second book is usually better written. The publisher helped the author’s career, they helped train the author to write publishable books, they want a payoff. Again, this is long-term career development.

Ron,

Actually, I’ve worked in publishing since I was in my early 20s. Since my early 20s I have produced numerous works, still under copyright, other than those I have self-published. Writers do not necessarily start their careers in middle or old age, by a long shot.

Given the long lifespans and overall excellent health of both my parents (only recently deceased), it’s not unlikely that I will live into my 90s. The same with my husband’s relatives (his grandmother lived past her hundredth birthday). I expect that well before we are that old, employers will not want to hire us (they already prefer people younger than we are now), the Social Security system will be broke, we may have acquired chronic medical conditions. In short we will need money, just like many older people. So, that accumulated income from my books could be very important. That’s not to say it’s unimportant now, but if you can’t work any more, or if you have expensive conditions, any source of money becomes even more important. Why should writers be penalized just because they’ve gotten old?

And—many writers do have children to whom they want to leave money. One important reason my husband and I had none is they cost a lot of money to support. The second reason was that since we both already had to work more than full time just to support ourselves, we had no time for children. Have you considered what that delicious work schedule pirates project for writers—a full-time job to “support” a couple of hours a day writing for no or practically no pay—is like for parents?

I fail to see why you think writers would be happy about having already low incomes reduced by 50% or even 20%, no matter what their age is. Would you like to be assured that would be true not only for you, but for your entire profession? Whatever that profession may be, if it’s true for all members, that means you can’t just get another, better-paying job doing the same work.

One reason I object to so-called orphan works legislation is it removes the responsibility of the would-be user to make any real search for the copyright holder or any real attempt to identify works not clearly labeled. (Which often happens with illustrations, which I also create, and it can also easily happen to any text that’s already been pirated or quoted with no attribution.) I read the two “orphan works” bills that have already failed to pass Congress, and was appalled at the low standards proposed for a declaration of “orphaned.”

I am also amazed at those who assert the proposed Google Settlement is an attempt to solve the so-called orphan works “problem.” Neither Google nor the libraries involved made any attempt to determine in-print status, copyright status, locate copyright owners, or ask permission to scan. The proposed Settlement applies to all works published before January 5, 2008, and Google is continuing to scan new books. This is by no means a project limited to old or out-of-print works, or unlocatable authors.

The other reason I object is that a copyright term is a copyright term and should not be snatched away. There is already a provision for using old works—it’s called the public domain. Why not wait until the works just fall into it?

You also have advanced no reasons for why the pay of authors should be reduced. From my long observation, printed books overall cost LESS than in the 1980s. Hardcovers were running $20-$25 then and they still are. Trade paperbacks are running about $15, give or take a couple of dollars. They were running $10-$15 in the 1980s but have risen in popularity, in comparison to hardcovers. Mass-market paperbacks were running $5 or so in the 1980s, and they’ve risen to about $7.50.

And, this is WITHOUT the deep discounts on most books offered to consumers by Amazon and its competitors, which discounts can be as high as $37%. It’s WITHOUT considering the many books are readily, cheaply, and legally available on the used market. When my mother-in-law wanted a biography of Madeline Albright for Christmas, I bought a brand-new hardcover on Amazon Marketplace for 50 cents (one of many offered).

I also have no sympathy for people who not only cry out that books should be free, they assert it is too much trouble for them to visit their local libraries, where they can legitimately borrow and interlibrary loan printed books.

Sorry, if someone has to suffer economically, it should be the so-called reformers and the pirates. Not the creators of works. If people care so little for books they will not bother to pay for them, to shop for legitimate bargains, or go to a library, if they will not undergo the “sacrifice” of reading a print book, they can just do without.

And, you have not explained why, if everyone’s going to unstoppably pirate everything anyway, any copyright “reform” is needed.

Ron,

Yes, significantly more books are published per year than in the 1970s—read the industry articles for details.

And yes, the quantity and quality of a (type of) product declines if fewer people buy it, therefore the manufacturer (in this case publisher and author) have to invest less time and money in it. Read the financial pages for information on how this works with many other industries.

There’s nothing special in the way publishing works. It’s a career, a business, an industry, just like many, many others. And, since you don’t work in it, I understand that you might not care—just like you might not care if the real estate industry is in trouble if your profession is unrelated to it and you don’t plan to buy a house. But people who work in publishing do care (and there are many in addition to authors), and people who are really interested in books care.

Publishing is also a part of the overall economy. I don’t work in real estate, I’m not buying a house, I don’t work in finance—yet the implosion of those industries has significantly affected me and many others who never gave them a thought before the recession.

Ron,

Also, please address my ongoing question:

Why should authors, publishers, editors, illustrators, graphic artists, translators, proofreaders, indexers, and all the others who work to create books, agree to suffer economically just because you and people like you don’t want to pay the relatively small cover prices and don’t want to bother driving to a library?

By the way, Ron:

Works published before 1978 were protected for 28 years, but 47 years if the registration was renewed, adding up to 75 years. Not 56 years.

Also, although I do not think “everyone” is out to pirate my work, my readers are very prone to piracy and they are the ones that count in terms of sales. As for other books, if you think 50% of sales will be lost to piracy, and also that “technology” makes massive piracy inevitable, you also are arguing that many people pirate and also, you believe piracy will increase. You and I are in agreement there.

As for constantly reregistering my work, aside from the fact that the Copyright Office dumped registration requirements because they are barely keeping up as it is (it takes about ten months for them to process a registration these days), you know what? My contact data is all over the net and so is a lot of other people’s.

Frances and Ron: Remarkably enough, you’re both right about the renewal terms of copyright before the 1976 Act.

Under the 1909 Act, copyrights lasted for a 28-year term from the date of publication and were renewable for another 28-year term, for a total of 56 years. The 1976 Act extended the renewal term for another 19 years (for a 47-year renewal term and a total of 75 years), for those works that had already been published. Ron is right about the state of the law as it was in 1975; Frances is right as of any time between 1978 and 1998. (What happened in 1998? The Sonny Bono Copyright Term Extension Act added another 20 years, for a total of 95 years.)

Of course, all of this only applies to works published pre-1978.

James,

Yes, it’s complicated.

Another factor that is important to consider is that, each new technology has grabbed a certain amount of audience attention and income from previous technologies. I am not talking about piracy. I’m saying, radio, television, movies, computer games, and the Internet have taken market share both from book publishing and, successively, from one another. Adults only have about 16 waking hours, most of which (for most people) are spent on earning a living, housework, yard work, errands, caring for children, and other necessary tasks, rather than on entertainment or self-education. Meanwhile, the number of writers has risen along with the general population.

Result: When copyright terms were shorter, it was a lot easier for writers to earn a living in real time. In other words not so much by accumulating an increasing number of works, which is now an essential strategy for most writers. Also, lifespans have increased, meaning a longer copyright term than before is necessary just to enable the writer to derive income from the work until he/she dies.

So if you want to talk about returning to the past, we do not have the economy of the past (in terms of what writers are paid and what readers spend), the culture of the past (in terms of information/entertainment consumption), or the lifespans of the past. We do not have Victorian editors feverishly buying material from writers, however new or second-rate, so that numerous families could sit around the parlor table while one member read a magazine aloud and the rest did needlework or just listened. Which by the way, was how most middle-class family evenings were spent, unless someone played the parlor piano while the rest listened, or a neighbor dropped by to chat. There was, really, not that much else to do after dark, since most families could not afford to give lavish parties or attend them (which required giving reciprocal parties). Well, OK, there were also things like parlor games for the young people … but really, in terms of entertainment it was a simpler age. Even cards carried the onus of gambling.

James- You Quoted Mr Epstein

Here is one caveat. It might make sense to allow Google to presume provisional consent for “orphan” works, narrowly defined, say, to cover books published 60 or more years ago, which are now out print, with standard royalties paid into a fund. The fear here is that works will remain dormant because no one is around to press the right radio button. Allowing immediate use with a reverse default has a good shot at passing the fair use test because the transactions costs for reaching these unknown authors are sufficiently high to allow for a market bypass.

You went on to ask

Query: would this be in the class-action mechanism (and thus working only in Google’s favor), or would this be a general privilege that anyone could take advantage of?

Have been reading D for Digit; Whats the current thought?

I am currently reading Bernard Lang’s piece.
Not surprisingly, I agree. However personal experience of “CMO’s” makes me want to add an extra serious problem to the already serious problems that he writes of; CMO’s tend to create a circular( and rather Dostoevskian) mind in the office bearers and senior staff. A set of “dispositions” ( to use Bourdieu’s terms) that are perhaps best exemplified by the well paid full time CEO of a CMO management organisation that sincerely self described herself as an, “artist”.
It is quite common ,in CMO world, to believe that you are: “the typical artist’—conflict of interest ,let alone moral hazard, are simply and blankly inconceivable for this sort of mind.

My Partner wrote a Submission to the parliamentary committee about the problems that the CMO’s disposition to only ‘recognize’ very similar groups creates for government policy makers (and any other outsiders).

The Submission was about local issues and had to be quickly dashed off but it has some wider implications.

James -Have you read Bourdieu’s essay :”Manet and the birth of anomie”?

Mr Lang’s remark (on the last page of his piece) about the apparent strangeness of US enthusiasm for “collectives” is, I suspect, ironic.

Official Arts Academies with very real, devolved power to restrict artists assess to exhibition and thus to markets, are a historical reality in continental Europe. They have never completely gone away.

Mandated, autonomous, Collective Cultural Authority is a relatively recent development in the English speaking world.

I am looking forward to reading the chapter on “harmonization”.

‘they argued all night about Who,

would do which, with what , to whom’

Google has a plausible fair use defense for its scanning and searching and definitely seems to believe that its interpretation of the law is right. You would disagree. But there is a disagreement to be had.— James Grimmelmann

This is why I believe the University of Wisconsin is directly responsible for the digitization of my work. You would think that such an institution as the University of Wisconsin that should set the standards for integrity, would make damned sure that it was for sure fair use and not just “plausible” before giving Google a single in-copyright work.

One cannot make “damned sure” that a use is a fair use. All one can do is look at the law and previous cases and decide whether one’s proposed use is plausible. Copyright law actually encourages universities not to be too cautious. Section 504(c)(2) removes all statutory damages when a university has reasonable grounds for believing that its use was a fair use. It doesn’t have to be right - just reasonable.

What Google’s library partners have done seems pretty reasonable to me. After all, any Google employee who was a resident of Wisconsin could have checked the book out and given it to Google for scanning. By partnering with Google, Wisconsin could exert some controls to protect the physical item and limit the intrusion that Google’s program might entail. Google’s snippet use of the scan could only help users identify titles of interest to them, thus potentially leading to more sales of the books, and not compete with underlying work itself. How can providing free advertising for titles not be a benefit? Most of all, what Google has done with books is no different than what it has done with the indexing of web sites: it has made electronic copies of the entirety of copyrighted works. Are we willing to conclude that the Google search engine is not a fair use?

And now I duck down before the onslaught…

All one can do is look at the law and previous cases and decide whether one’s proposed use is plausible.— Peter Hirtle

If we were talking about just one in-copyright work being copied, perhaps this statement would be sufficient to excuse the university’s actions, it is not however sufficient for such a project as undertaken by Google & Company.

Most of all, what Google has done with books is no different than what it has done with the indexing of web sites: it has made electronic copies of the entirety of copyrighted works.—Peter Hirtle

It is altogether different Peter. When Google searches a web page and makes a copy it remains in the medium of the internet with links to the original page. A creator still has control of his work, and can remove it from the internet. When the University of Wisconsin and Google digitized my work they took it out of the medium where I had placed it. They were using my work to promote their web pages, an infringement of my copyrights.

How can providing free advertising for titles not be a benefit?— Peter Hirtle I have heard this before.

Peter,

It is up to the copyright holder—and anyone to whom the copyright holder has given the power to market the work—to decide whether disseminating free information from the work will benefit or harm sales, and to therefore decide whether or not to disseminate it and if so, what information and how much of it.

But I agree, those teensy “snippets” do add a huge power of free information to the Google search engine. Note that every website already listing the book for sale at an online bookstore, or mentioning it on the author’s or publisher’s website or any magazine or blog that has posted a review, pops up in the Google search engine anyway—and in every other search engine—without giving away any portions not explicitly allowed. Therefore, the marketing benefit to the copyright holder of those snippets is negligible, while Google makes out like a bandit.

Regarding the libraries, your argument is disingenuous. I have read the contracts between Google and the “full partner” libraries that were publicly posted. Google agreed to give each of those libraries complete e-copies of all the scanned books from not only that library’s collection, but from the collections of all the other libraries “full partner” libraries as well. This amounts to an enormous windfall of (a) free e-books and (b) of free books not in a given library’s collection in any form. The libraries knew perfectly well they and the other libraries were not receiving all those books strictly for the benefit of Google’s search engine, and that they (the libraries) were financially profiting bigtime. The scanning had to be done on a massive scale to meet Gogole’s goals, and there is no way it could have been done if Google’s employees had borrowed the books one by one—as you must know. I also don’t believe the libraries want the scans of new, copyrighted books for archival purposes. By the time those copyrights expire, the file formats will have been unreadably obsolete for decades. And it is telling that the contracts also agree that Google will take care of the legal defense of any libraries in the project that are sued.

Please—we all know this is about libraries saving immense amounts of money on acquisitions. And about libraries staying in business, as it were, by trying to make themselves look relevant in an age when anyone can download any legitimate e-book merely by paying a rather small sum for it. And also, when anyone can easily buy deeply discounted print books and cheap used books all over the Internet.

Frances, every paragraph of your response proves that you have learned nothing about the scope of rights under US copyright law in spite of the many careful explications provided and referenced on this blog. You also have learned nothing about how American research libraries operate nor their reasoning for partnering with Google.

Rather than doing a point-by-point refutation of everything in your message, let me highlight just one factual flaw. You write: “Google agreed to give each of those libraries complete e-copies of all the scanned books from not only that library’s collection, but from the collections of all the other libraries “full partner” libraries as well.”

I have read all of the publicly available agreements and I do not know of one where Google says that it would have provided copies of in-copyright books to libraries that were not actually scanned at that library. Such a transfer would require the permission of the copyright owner, which is why such transfers became part of the settlement agreement. Prove me wrong. Give me a contract and a section that supports your statement.

Peter, yes I read the contracts, but the links I had to them have been taken down. I see you want to discuss this issue in depth, Since you work for one of those libraries, presumably have a current sent of links. Could you post them here, so we can discuss the contracts together?

I think just getting even a huge windfall of free PUBLIC DOMAIN e-books is a very important financial incentive for the libraries. It’s quite sufficient incentive for some libraries to join the program for their own ends and let Google worry about its own copyright problems. The scanning project is all about money, from Google’s point of view, the libraries’ point of view, and the copyright holders’ point of view.

But, since many of the libraries in the project did scan copyrighted books and receive free e-copies of at least their own books, can you tell me, exactly, how US copyright law enables them to lend and use those books? After all, e-copying is a form of publication and if those copies are distributed without permission of the copyright holder, this is a violation of copyright law. Why deliver the books to Google for scanning, and then receive copies of the scans, with no intention of ever using the scans?

And, could you tell me what the Hathi Trust is doing, with the libraries pooling their copies of the scanned books? If copyrighted books are not distributed without permission, what, exactly, does the trust plan to do with all those copyrighted files?

Are the libraries in the project, by any chance, waiting for Google to push through a Settlement to allow them to distribute their new e-copies of copyrighted books? As the current version of the proposed Settlement forces for everyone who does not explicitly opt out of it?

Are the libraries by any chance waiting for Google to fund yet another attempt to push through Congress an act providing for the free use of so-called (and very broadly defined) orphan works?

Sorry, I don’t think the partner libraries are innocent parties here. Some of them contractually refused to let Google scan copyrighted books, and the rest not only could have but should have.

Why, exactly, did the rest of the libraries not tell Google, “Please contact the publishers for permission; they are the right parties to agree or not agree to scanning copyrighted books and to Google’s use of the scans. Or if the rights have reverted, the publishers can help you to contact the authors.” After all, the Big Six have big lists. Google did not have to take books out of the libraries one by one; they could have gotten many of the scanned books currently in print via the publishers. Or, why didn’t Google set up a Partner program and wait for everyone to join? Oh that’s right, Google did—and not enough copyright holders liked Google’s terms to join up. So why, exactly, were the libraries so willing to help Google circumvent the copyright holders and their representatives (publishers and agents)?

Oh yes, another incentive for the libraries is that print books wear out and e-books don’t. Therefore, they are saving themselves large amounts of money on not only buying replacements from publishers, but on repairs and rebinding.

Frances Grimble: Peter, yes I read the contracts, but the links I had to them have been taken down.

We can help with that. The Public Index has the library agreements.

Frances and Peter

Frances - Please —-The settlement goes way beyond the original questions over ‘snippets’.

Peter -The Question over fair use was never settled and that is the rub , the settlement is, if approved, a limiting of ‘use’ (by anybody else) that gives Google a effective power of anti-competitive, restriction of trade. ( The last part of D for digitize suggests that this ‘control ’ of trade is built upon sand , but who knows)Whatever— the settlement is , it is not an extension of fair use and even if it was; good ends do not justify lawless means. And it is also if granted , a effective monopoly over the economic representation of authors that is also a serious restriction of authors terms of trade.

John Walker: my responses to this post do not address the settlement. They were sparked by an assertion that the University of Wisconsin did something wrong when it cooperated with Google in the digitization of an in-copyright book as part of the original Google Books search initiative. My point was that Wisconsin did exactly what copyright law encourages it to do, namely to act when the university has a honest belief that what it was doing constituted fair use (even if a court may later conclude that the institution was mistaken).

The University of Wisconsin could have said to Google, “Come back and talk to us about digitizing our copies of in-copyright works when you know for sure that doing so is fair use and not just an opinion.” They did not. Instead, it seems they used their copies of in-copyright works as currency to get a better deal for their subscription to the Google corpus. The University of Wisconsin is no better than a school yard bully— using their power to take what they want without regard to the rights of others.

Frances Grimble: “I see you want to discuss this issue in depth.”

Yes, I have this compunction to do research and document my assertions and conclusions prior to sharing them with the world. So let me illustrate why your posts make me wince.

Grimble: It is up to the copyright holder…to decide whether disseminating free information from the work will benefit or harm sales, and to therefore decide whether or not to disseminate it and if so, what information and how much of it.

There is nothing in the copyright law about “disseminating information” or that gives the copyright owner control over how a book is to be marketed. The limited set of monopoly rights granted by the public to the author found in Section 106 are limited primarily to reproduction and distribution of copies. In fact, Section 113(c) explicitly allows marketing of copyrighted works without the permission of the copyright owner in some cases.

But my point was that a court, when conducting a fair use analysis, would look at the market impact of the reproduction. In recent cases (most notably Campbell v. Acuff-Rose), the courts have stressed the importance of whether the use serves as a substitute for the original work. It is hard to imagine that a Google snippet would stop someone from purchasing the work.

It is true that the Napster court did not find increased sales generated through the use of unauthorized samples by itself enough to create a fair use. In that case, however, there was already an existing market for licensed advertising samples.

So to return to the context of my initial post, I was trying to argue that Wisconsin’s participation in the Google scanning project was reasonably a fair use. We now know that the copyright owner does not have an absolute right to control how a work is marketed. The Google snippets did not serve as a substitute for the original books. There was not any market for licensed downloadable samples of books. And authors could ask to have their books excluded from snippet view. As a result, it would be very hard for Wisconsin, or any library partner, to conclude that there was demonstrable market harm. If anything, Google Books could only have led to increased sales.

Grimble: …the marketing benefit to the copyright holder of those snippets is negligible, while Google makes out like a bandit.

There are two things that I believe are wrong with this statement. First, I would argue that the ability to discover that certain words appear within the full-text of a work is more likely to lead to lead to a sale. For example, I might discover that one of my Nova Scotia ancestors is mentioned in the family history of an entirely different family. I would then be tempted to purchase a copy of that work. I don’t know of any data that proves that having access to the full text of a work increases sales, but that assumption is behind much of the marketing that Amazon and Google direct at publishers, and it makes sense.

As for Google “making out like a bandit,” that is one of the most outrageous canards that I have heard about the Google Books project. There are two things wrong with. First, when the Google Print Library project started, I do not believe there was any advertising on the books in Google. Google still claims that there isn’t any advertising associated with books scanned from libraries. While it might have been reasonable to assume that Google would attempt to make money from the Google Books project through advertising (since that is how they make all of their money), I have never seen an assessment of how much money they are likely to make.

It had better be a lot, given the immense cost of this project. Google has reportedly scanned over 15 million books so far. There are widely divergent estimates as to how much it costs to scan a book, from $10/book to $30/book (which may be Google’s estimate) to up to $160/book (at the University of Michigan). At the $30/book figure, that means that Google has invested $450 million in scanning alone - just to make the books searchable via snippets and to give away those that are in the public domain.

It is hard to believe that there is a business plan that demonstrates that selling AdWords against obscure and out-of-print books could ever have recover even a portion of this capital investment, let alone the ongoing operational costs. Microsoft’s decision to get out of this field as a money-loser seems much more reasonable. You are going to have to demonstrate how Google can “make out like a bandit.”

One last point: It can be perfectly fine for Google to “make out like a bandit” by using copyrighted content in new ways, and without the permission of the copyright owner. That is called “transformative use,” and copyright law encourages such creative inventions.

Grimble: Google agreed to give each of those libraries complete e-copies of all the scanned books from not only that library’s collection, but from the collections of all the other libraries “full partner” libraries as well.

You have failed to provide evidence for this lie. I would refer you to, for example, Section 4.7 of the California Agreement, which defines the University Copy:

…the “University Digital Copy” means the digital copy of the Selected Content [from California] that is Digitized by Google…”

The other agreements I have examined use similar language. I actively await conflicting citations or a retraction.

Grimble: This amounts to an enormous windfall of (a) free e-books and (b) of free books not in a given library’s collection in any form.

I have dismissed (b) as false. It is true that the libraries get electronic copies of books they own. We could quibble over the format that Google supplies should be called an “e-book.” But it would be hard to call this a “windfall,” for what libraries may do with these books is extremely limited. Sections 4.9 and 4.10 of the California contract, for example, say that the University can use the digital copies only in compliance with copyright law — the same as with the print originals. There isn’t much that libraries can do with copies of the books. They can make limited fair uses of the material, and they can possibly provide access to versions for visually-impaired students (under Section 121), but that is about it. That is why the President of the University of Michigan stressed in her speech to the AAP, the copy that Google provides to the University “is entirely, and only, for preservation and research. …For in-copyright works, we will make certain that they remain dark until falling into the public domain. …We know there are limits on access to works covered by copyright. If, and when, we pursue those uses, we will be conservative and we will follow the law.”

Grimble: The libraries knew perfectly well they and the other libraries were not receiving all those books strictly for the benefit of Google’s search engine, and that they (the libraries) were financially profiting bigtime.

Given the high costs associated with storing items in a secure dark archive and the limited uses libraries can make of those items, I have argued that the university copy of in-copyright books is a financial albatross, rather than a windfall. Most Google librarians seem to feel that the university copy is a burden they must accept, given the profession’s commitment to preservation. How this could be “financially profitable” is beyond me.

Grimble: The scanning had to be done on a massive scale to meet Gogole’s goals, and there is no way it could have been done if Google’s employees had borrowed the books one by one—as you must know.

Apparently the Internet Archive has successfully mobilized a cadre of students to download hundreds of thousands of public domain books from Google to put in the IA’s repository. Why would it be so hard for Google to hire students and other local residents to check out books for its scanning project?

The point I was trying to make is that the collections of the universities in Michigan, Wisconsin, and California belong to the people — and organizations — of those states. Google had a right to access the books in those libraries, even without the cooperation of the libraries. I have not seen any libraries use this as a justification for participating with Google, however. They have instead stressed the positive elements of improved access to content, as I discuss below.

Grimble: I also don’t believe the libraries want the scans of new, copyrighted books for archival purposes. By the time those copyrights expire, the file formats will have been unreadably obsolete for decades.

If you had bothered reading even the brief statements from the Google partner libraries, you would have seen that they were participating primarily to improve access to the material in their holdings. So NYPL says “We see the digitization project as a transformational moment in the access to information.” Michigan: “By joining this partnership that makes our library holdings searchable through Google, UM serves as an agent in an initiative that radically increases the availability of information to the public.” Preservation was also important driving factor, but access mattered most of all.

Grimble: And it is telling that the contracts also agree that Google will take care of the legal defense of any libraries in the project that are sued.

What does this tell? Publishers make authors sign agreements that indemnify the publishers against lawsuits. Is that also telling?

Grimble: Please—we all know this is about libraries saving immense amounts of money on acquisitions.

Just like we all know that Barack Obama was not born in the US, and that he is a Muslim. I defy you to explain how having an electronic copy in a dark archive of an in-copyright book that you already own and which you can only use in the same limited ways that you could use the print original can save one single dollar in acquisition expenses. This statement demonstrates a profound failure to understand even the basics of the initial Google library project.

Thanks, James.

John, I absolutely understand that the Settlement goes far beyond snippets. However, there is every indication that Google will use the material to enrich its search engine in addition to numerous other uses described (and not explicitly described) in the Settlement. My point was that a search engine enriched with copyrighted books would not benefit the copyright holders financially, even in terms of searches because their books pop up all over other searches anyway. But this free information for users, with ad sales on the side, would benefit Google a great deal.

Peter, all the contracts posted on the Public Index speak of the libraries providing Google with copyrighted books. There’s a certain amount of language to limit legal liability for all parties, but no commitments to provide only books in the public domain.

The Google Contract with the University of Michigan library system permits the U of M, at its sole discretion, to display the scanned files on its website, and to use them in cooperation with partner research libraries such as the Digital Library Foundation.

The Google Contract with the University of California library system requires UC to provide at least 2 1/2 million books for scanning. UC is permitted to distribute up to 10% of the scanned material to other libraries.

The Google contract with the Committee on Institutional Cooperation (which includes the library systems of 12 universities) requires them to collectively provide at least 10 million volumes for scanning and enables them to contribute all the scans of public-domain works to a joint depository of files.

The Google contract with the University of California library system requires UC to provide at least 2 1/2 million books for scanning. UC is permitted to distribute up to 10% of the scanned material to other libraries.

The Google contract with the University of Texas library system requires the system to provide at least 1 million books for scanning. The U of T is permitted, at its sole discretion, to provide the files for the use of library patrons. An amendment to this contract enables the university to provide public-domain files to other research libraries.

The Google contract with the University of Virginia library system requires the system to, at its sole discretion, use the works on its website and internally. The U of V is also permitted to provide copies of public-domain works to members of the Digital Library Federation, and to the Virtual Library of Virginia.

The Google contract with the University of Wisconsin library system enables the system to, at its sole discretion, use the works on its website. The U of W is also permitted to contribute the University Digital Copy to a central depository of digital works hosted by a Member Library (no mention of any requirement that they be in the public domain).

No contracts are posted on the Public Index for the following US Google Partner libraries: New York Public Library, Cornell University, Columbia University, or Stanford University. I have not examined the contracts for the foreign libraries.

Peter,

I think Google agreed to bear the legal and financial brunt of any copyright violations committed by the universities, which explains a lot about why the universities did it. Most copyright violators don’t have someone to pay massive legal bills for them if they are sued.

Look, the libraries assisted a highly commercial enterprise because they got a huge payoff in terms of free acquisitions, and it’s a payoff whether those acquisitions are in the public domain or not. Sure, if the Settlement is not approved the libraries may have to be content with public-domain books and with pooling and exchanging the files themselves. It’s still a huge payoff.

Peter

exactly what copyright law encourages it to do, namely to act when the university has a honest belief .

Exactly what ‘copyright’ encourages is the sixty four dollar question. And as for: “Honest belief” come on now , could cover anything.

Mitterrand is quoted in D for digitize, as saying that Google is “superbly vague about copyright”, superbly vague sums the whole thing up.

Little wonder the average punter gets a bit hot; one rule for them , and whatever ‘one’ honestly - vaguely believes is best, for the big and powerful.

Peter

Many people that are a lot smarter about law than any of us, have expressed concern about the superbly vague nature of both the contract and Googles general attitude to copyright.

Libraries use a lot of valuable real estate , have significant conservation maintenance costs and need a lot of staff to ‘stack’ and retrieve books. The public sector is always under pressure to find efficiency gains , is it really that paranoid to wonder about the longer term possibilities of the contract with Google?

Just hypothetically; what if the ‘collection’ became purely (or even mostly), a data base owned by an entity like google?

It had better be a lot, given the immense cost of this project.— Peter Hirtle

Peter, The content of my book took me hundreds of man-hours and thousands of dollars to produce. The University of Wisconsin and Google were exploiting that content for what- thirty dollars?

That is called “transformative use,” and copyright law encourages such creative inventions.— Peter Hirtle

It was not as you say “transformative”, they merely changed mediums— like taking a radio show (The Lone Ranger?) and making a TV show (The Lone Ranger?) See comment.

Google had a right to access the books in those libraries, even without the cooperation of the libraries.— Peter Hirtle

Google may have had a right to borrow my book from the University of Wisconsin, but without the library’s help they could not have backed-up their tractor-trailer to the library’s back door and pillaged my work.

The University of Wisconsin, Google, & Me

Google had a right to access the books in those libraries, even without the cooperation of the libraries.— Peter Hirtle

Actually Google was given rights by the University of Wisconsin to my work that a citizen off the street does not have. In 2008, when it was digitized, it was a reference work and not eligible to be loaned out.

This family history collection is non-circulating — which means the actual books can’t be checked out and must be viewed at the Historical Society Library.— Todd Finkelmeyer, IS GOOGLE-UNIVERSITY OF WISCONSIN BOOK DEAL FAIR TO AUTHORS?

“The Google snippets did not serve as a substitute for the original books.”— Peter Hirtle

A single snippet is no substitute for a copy of my book, but the access to the complete work is.

Peter,

You say: “There is nothing in the copyright law about “disseminating information” or that gives the copyright owner control over how a book is to be marketed.”

Forgive me. I assumed you would know I mean, “disseminating free the entire work or any significant portions of it for marketing purposes.” The copyright holder DOES have a great deal of legal control over that, if not directly, through the contract signed with his/her publisher, and anyone else to whom the copyright holder has legally given any control over marketing.

I actually market books—you lend/give them away. I know that for one thing, there are people looking for free information and people who intend to buy. The ones looking for free information are usually determined to get it free and often, to get it online in preference to any other place such as a brick-and-mortar library. They often spend a great deal of time and energy looking for freebies, downloading them, and organizing them in folders on their computers. People who intend to shop look in book-buying venues such as online and brick-and-mortar stores, they read reviews, they do price comparisons, and they may ask friends or e-lists for advice on what to buy. Think: Surfers versus shoppers.

All this is by the way, as in terms of copyright protection for the work, it is absolutely the copyright owner’s decision as to how much, if anything, to give away. This is very individual to the kind of book. Just because Jane Bestselling-Author doubled sales of her print novel by giving away the first two chapters online does not mean everyone else can do it. If her book had been an anthology of short stories, this might well not have worked for her because the stories could be read independently, whereas with the novel, readers have to buy the rest of the book to see how the plot works out. I also argue that certainly the Google sample pages currently on their Partner site (yes, I know, larger than the snippets) do cut into book sales. I hear people say they use them that way all the time, instead of buying books.

Just don’t pirate my work and then tell me you’re doing me a favor because you’re actually marketing it. And I don’t mean, scan the work, then craft a 350-page Settlement that I have to hear about without being notified, and then opt out of (after hiring a lawyer to help me understand it, which I did). Especially since I have zero confidence that Google will honor any opt-outs.

As for your assertion that there is no advertising next to books scanned from libraries, I’ve been seeing it on Google Books ever since they started posting the public-domain ones. For ex ample, I just now looked up “Home Needlework” at www.books.google.com. Next to the listings for various public-domain books with those words in the title, are ads for Herrschners.com’s “needlework kits and floss,” stitchery.com, everythingcrossstich.com, Needle Nook Needlepoint, and Stitcher’s Last Stand. Even the most obscure titles usually have next to their listings for one or more general book sources such as Abe or Alibris. Sure Google makes money on Adwords. Quantity ads up.

You know I’m not any more privy to Google’s financial figures than you are. You also know that Google makes billions in profit. I am sure Google thinks their “snippets,” and the use of the material to improve their natural-language recognition software, and—oh yes, all those book sales allowed by the Settlement, including those of so-called orphan works—will be highly profitable. But wait, didn’t you libraries ask Google why it was carrying out this project before lending Google millions of books? Did you, by any chance, already know Google was crafting the proposed Settlement?

If the libraries do not plan to use the scans of copyrighted works, why did you provide the books to Google, accept copies of the scans, and stow the scans in the Hathi Trust? If you guys think the same PDF formats will be readable for decades, you’re seriously technologically unhip. Or do you envision that libraries will “stay in business,” through a continuous series of taxpayer-paid grants to transfer millions of files to new formats every few years? I have print books over 200 years old in my personal library, and I can just open them up and you know, read them.

Come on, you can’t really be asserting that it would be easy to organize, or cost effective, for Google to check the over 12 million books scanned so far out of libraries, one by one.

As for improving access to material in library holdings, it is not to my financial benefit if the libraries make e-copies of my books instead of buying replacements from me when they wear out, trading them with other libraries instead of buying them to begin with, and “lending” them to students (who know full well how to pirate them and distribute those copies). Sorry, writing is my profession, publishing is my business, and I have to make a profit. No one is supporting me with public money. No one is paying my business or living expenses because my producing books benefits humanity. So, my interests come first. If I don’t profit, I don’t give a rat’s patootie about benefiting humanity. I mean, you get paid a salary, right? I don’t. I just have my business.

As for libraries wanting to save money on acquisitions, of course they do. Could you please point me to some recent studies (say 2009-2010) saying that libraries are generally getting plenty of funding, have as much money as they want for acquisitions, have as much space as they want for storing print copies, and overall, are feeling financially plush?

Douglas brings up a couple of important point.

One is, a “snippet” is not fixed—it can come from anywhere in the work, and presumably there can be multiple snippets displayed from the same work. The access to everything that user wants to see is presumably entire.

Two, aside from the difficulty of coordination, Google could not have hired people to check books out of libraries that the libraries do not permit patrons to check out.

Three, a point Douglas did not bring up, according to the contracts the libraries also provided cataloging data for the books. This appears not to be uniform from library to library, either on Google or Worldcat. Thus, it is not as useful as it could be but still, it’s a provided freebie.

As for Peter, I would appreciate him posting links to studies on the current financial state of libraries, also to the financial benefits of having Google provide scans of a huge portion of the collection at no cost to the libraries other than transferring the books to Google (entire shelf by entire shelf, librarians have told me) and then reshelving them.

Evidently, neither Google nor the libraries is proofing the scans. And I don’t just mean all that bad OCR, I mean the pages that are blurred, not scanned, fold-outs not folded out, human fingers on the scanned pages, etc.

Frances Grimble:

One is, a “snippet” is not fixed—it can come from anywhere in the work, and presumably there can be multiple snippets displayed from the same work. The access to everything that user wants to see is presumably entire.

As someone who actually does use Google Books, I can help you here. I often receive notification from Google that my search term was found N times, but only M snippets are displayed (where M < N). So no, I’m pretty sure that Google has covered that base also, although I haven’t made statistical research into how much of the books displayed in snippet mode are blocked from display as snippets.

here’s some data to help Peter:

Google revenues

http://en.wikipedia.org/wiki/AdWords “Google’s total advertising revenues were USD $23 billion in 2009.”

http://gigaom.com/2009/07/17/where-does-google-get-97-of-its-revenue/ “A full 97 percent of its revenue comes from advertising on its various properties, including YouTube, plus partner sites through its AdSense product.”

https://jps.library.utoronto.ca/index.php/fdt/article/viewArticle/4909/1772 “Where underlying motives are concerned, Google, which is a commercial, profit-driven enterprise, obviously benefits from including book searches in its arsenal of services. So significant is the revenue from the search traffic added by this product, that Google in fact pays the libraries to gain access to the books (Hafner, 2007). Libraries that sign with the Open Content Alliance are obligated to pay the cost of scanning the books.”

I’ll leave it to Peter to provide some links to papers on the cost of buying and storing print books in a recessionary economic climate—or indeed any economic climate. Not press releases for the general public, nor necessarily documents that relate to Google scanning, but studies done by libraries and for them on costs.

Frances Grimble:

Another factor that is important to consider is that, each new technology has grabbed a certain amount of audience attention and income from previous technologies. I am not talking about piracy. I’m saying, radio, television, movies, computer games, and the Internet have taken market share both from book publishing and, successively, from one another. …. Meanwhile, the number of writers has risen along with the general population.

Result: When copyright terms were shorter, it was a lot easier for writers to earn a living in real time. …

So if you want to talk about returning to the past,

I love how this post appears to me to sum up your point of view, which is:

Anyone who is a good, talented writer deserves to be able to make as good a living in the writing profession as good writers could make in the past “golden age” for writers —- without regard to any economic or social changes which might have occurred since or might occur in the future.

An interesting point of view, I agree, but hardly one which appears to be firm ground from which one could harp endlessly about the “evils of copyright reform”.

Ron,

Writers are subject to the market pressure for their sales like everyone else. However, if so-called copyright reform means they can’t make a living no matter how good their work is, most of them won’t write. Furthermore, publishers will not publish the work, because they exist to be profit-making businesses. If no one is able to pay the editors, graphic artists, indexers, illustrators, translators, and so on who work on books, they won’t work either.

The only “need” you have demonstrated for “reform” is that you don’t feel like paying for books or driving to a library. You could just as well say that you don’t want to pay for housing, groceries, clothing, or other expenses, therefore the creators, manufacturers, and owners of all these things should give them to you for free.

Meanwhile, presumably you personally feel entitled to make a fair living from your work, no matter what you do. How, exactly, is it reasonable that other people should slave for free while you get paid? You can urge a system where they don’t get paid, then you don’t get their work, you destroy that part of the economy, end of story.

Ron, what I mean is:

It is one thing to introduce a new technology and the older ones have to “adjust.” It’s another to expect its workers to continue merrily beavering away for your benefit while you don’t pay them, instead of their getting a job doing something different. Which, realistically, is what they have to do.

I think it’s very unfortunate when important portions of our culture are economically damaged. As I said, I used to be a dancer. That pays even worse than writing. I think it’s very unfortunate that the average person cannot dance and the average audience does not understand dance performances. I don’t even mean appreciate, necessarily, I mean understand (Audiences are actually quite easy to impress because they do not understand what is and is not technically difficult.)

Now, you can tell me so what, dance and now writing are outmoded and they just have to go in favor of people chatting on the net. But, well, I actually appreciate these things.

And, I think it is incredibly self-centered and childish when people whine about how a whole industry should be destroyed because they—most of whom are earning more money than the average writer—don’t want to pay anything for books or take any trouble to either borrow or buy them.

By the way Ron, considering you do not offer any actual information or informed opinions, I’m putting you on my troll list and not bothering with your future messages.

Frances Grimble:

Writers are subject to the market pressure for their sales like everyone else. However, if so-called copyright reform means they can’t make a living no matter how good their work is, most of them won’t write. Furthermore, publishers will not publish the work, because they exist to be profit-making businesses. If no one is able to pay the editors, graphic artists, indexers, illustrators, translators, and so on who work on books, they won’t work either.

Exactly. The point is, why should writers be entitled to make a living regardless of the economic reality? This is where we differ. You obviously cannot imagine a world with much less publishing and professional writers being a worthwhile world. I have much less strong feelings in the matter, as you can imagine. Oh, and by the way, you’re constantly raising a logical fallacy called a “false dichotomy” when you claim that all writers, publishers, etc. will not work in this field. It’s rather clear from economic theory that at least some publishing will remain, as long as there is market demand for it.

The only “need” you have demonstrated for “reform” is that you don’t feel like paying for books or driving to a library. You could just as well say that you don’t want to pay for housing, groceries, clothing, or other expenses, therefore the creators, manufacturers, and owners of all these things should give them to you for free.

Maybe you could actually read and try to understand my stated position rather than constantly impugning my motives and branding me a pirate? You constantly fail at that, you know (the reading part, not the branding part). For example, when I proposed that there be a requirement that a written work contain valid contact info at the time of its publication, your reply was a rant about “constantly having to reregister”. Not exactly connected, eh? And totally missing the point, which is that this would enable people to easily distinguish between works which are meant to be protected by their creators and other works which are simply “thrown out there”.

Meanwhile, presumably you personally feel entitled to make a fair living from your work, no matter what you do. How, exactly, is it reasonable that other people should slave for free while you get paid?

Why do you think I believe others should slave for free? If they cannot make a living in publishing, slavery is the only alternative? Another whopper of a false dichotomy. Oh, and let me tell you: I have little job security, like most aging workers in high tech (and by the way, I don’t personally feel “entitled” to work at whatever I want to do for a living; like everyone, I can only earn a living doing something which the economic marketplace feels is worth paying for).

You can urge a system where they don’t get paid, then you don’t get their work, you destroy that part of the economy, end of story.

And here we return to square one. Exactly correct, except for that little problem of your fixation on false dichotomies. It’s possible that publishing might be less economically viable (not that you’ve given any definitive evidence for this being the result of the specific reforms I proposed), but unlikely that this could cause a total collapse of the whole industry. Your grasp of the mechanics of the publishing industry is certainly better than mine, but your grasp of economics seems rather less strong (to be polite). This is reflected in your constant argument from false dichotomies, showing that you are focussed on the qualitative, rather than the quantitative (hint: good economists are more quantitative than qualitative).

Ron,

When I have said, you do not feel like paying for books, that is what I said. I merely mean, apparently you want them for free, perhaps legitimately, or else, you do not read them and see a reduction in their numbers and quality as no loss.

As for the rest, let us agree to disagree.

Ron, sorry, I also did not say you felt entitled to do whatever you wanted for a living. I merely said, when you do work, presumably you also expect to be paid fairly and if you did not, you’d go elsewhere.

Frances Grimble:

By the way Ron, considering you do not offer any actual information or informed opinions, I’m putting you on my troll list and not bothering with your future messages.

Whatever. You’ve been ignoring the actual content of most of my posts anyway. I actually have to do real research in order to evaluate yours. I’ve actually found out a lot of interesting facts about the economic realities of publishing while doing so.

In fact, it might even be refreshing to be able to post something which disagrees with your position, without having to be afraid of being insulted, misrepresented, or drowned out by your voluminous replies. On the other hand, I’d kind of feel like I’m talking to myself, given that you are ignoring me. Interesting. Is anyone else listening to our interaction on this forum? Should I feel justified in replying anyway, “for the sake of NPOV”, in the jargon of Wikipedia?

Frances Grimble: I see that the cross posting time lag is really a stumbling block here. I’m happy that you are still interested in our dialog and I will try to give you more focussed arguments to reply to. And I appreciate your apology and am sorry if I was too sensitive.

For now, I am also happy to agree to disagree with you. And again, know that if I wish to reform copyright, it is not a personal attack on you or your ability to make a living. And, as you have pointed out, my opinion is of academic interest only for the immediate future, since there is no wide interest in this issue in the public eye, and no corporate interests backing it by lobbying.

But right now I have to run. I hope to be able to reply to some of your older posts in the future, with some of the information I’ve been researching.

Now, now . In a civil society the answer is always found in bargaining and compromise.

It is the lack of legislative action about copyright and fair use (in a digital age) that still is, the root problem. The vast wobbly muffin top that is the settlement, a contract so attractively perched on a ‘wafer thin mint’ cupcake of fair use, was only possible because elected legitimate authority is not doing its job.

Until recently copyright law was a neatly divided up, gentleman’s club . Entry was only for big businesses , lawyers and senior government trade mandarin type chaps . The members of this club shared a common history of understandings, usages and gentleman’s rules of engagement. It has now become a matter for the masses. If last century’s conflicts centered on economics, the 21 C ,at the moment, seems well on its way to being the century of ‘Copyright wars’.

The reason why so much of this is so perplexing and so beyond the understanding of any “mortal” is; ‘It’ is intrinsically so recursive as to be intrinsically meaningless. James prefers an elephantine metaphor , I prefer ‘chimera’. Either way the components are so dissimilar and so poorly related that when combined , they equal an impossible illusion.

Most of all, what Google has done with books is no different than what it has done with the indexing of web sites: it has made electronic copies of the entirety of copyrighted works. Are we willing to conclude that the Google search engine is not a fair use?

This is a false analogy. There is a significant difference between “Google search engines” behavior on the web and its behavior in libraries. The protocol by which a web page author can refuse consent to examination and thus to indexing ,of the content contained in that web page, is well established and honored. Indexing is up to the web-authors say so.

This is not how Google behaves in libraries.

It is provably true that error prone snippets are not great substitutes for the full authorised text. That is why ‘fair use’ is such a flimsy pretext .

As for Orphans.

Outside maths and music, child prodigies are rare; any author of any orphan book published prior to about 1960 (or even prior to 1970) must be pretty old and quite possibly past caring. Excessive protection of the individual economic rights of such ‘elderly orphans’ makes little sense. And surely the economic value to publishers of back catalogs of that sort of ‘orphan’ work cant be that much.
Paying rent to a bunch of known authors in order that they ‘represent’ unknown authors is a mad solution to this sort of problem. A mandated protocol of procedures for and mandated guidelines for evidence of sufficient searching that if followed granted a limitation on payments on the rare occasion when somebody actually turns up, might be a better way.

And as Bernard Lang succinctly points out there are good individual economic (and personal) reasons why many more recently published ‘orphan’ Authors would not wish to increase the transaction/opportunity costs involved in the wide dissemination of their writings, that come from the payment of an unknown authors rent to a known authors representative organization.

How to deal with the problem of ‘Accidentally’ confusing smaller authors and small publishing entities with people who are orphans by choice is a much bigger question.

But compulsory licensing of the individual economic rights of authors to a small group of known authors is not the way.

Compulsory licensing is also a sort of quasi-privatized socialism that seems odd in the USA.

Frances, none of the paraphrases of the Google agreements with libraries address the content that Google is obligated to provide to the libraries. If you look at the actual language defining the “University Copy” that Google provides, you will see that it consists of the “Selected Content” digitized by Google. According to the definitions, the Selected Content comes from the holdings of that library - not other libraries.

Why can’t you admit that your assertion that “Google agreed to give each of those libraries complete e-copies of all the scanned books from not only that library’s collection, but from the collections of all the other libraries “full partner” libraries as well” is not accurate?

Peter,

Because, in the contracts I quoted, the libraries got permission from Google to trade those scans with each other.

I am now leaving this thread for good. I’m tired of the troll quotient.

A common view is that technologies are threatening to eliminate that category [“Practical obscurity”], making information either secret or public.— James Grimmelmann

This came a step closer to reality today in Europe with the release of the “Europeana report”

Works that are covered by copyright, but are no longer distributed commercially, need to be brought online. It is primarily the role of rights-holders to digitise these works and exploit them. But, if rights holders do not do so, cultural institutions must have a window of opportunity to digitise material and make it available to the public, for which right holders should be remunerated.

The University of Wisconsin, Google, & Me

Frances, so now you are saying that Google authorized the distribution of the scans by 3rd parties. That is different than what you posted before (and also isn’t exactly correct).

Details matter, but clearly you are not one to let facts get in the way of your passion.

Mr Hurtle

If somebody as well schooled in Real politic as Fredric Mitterrand can describe Google as “superbly vague on copyright”, then either your blanket assertions are those of an non “mortal”…. or they are a tad too sophisticated.

“beyond a certain point, shear complexity is in itself evidence of fraudulent intent”

Douglas

The sort of public program outlined in europenana is not likely. European public programs must be radically cut for decades to come; If not, the bond market could do to Europe what it did to Argentina. Europe is under a mountain of unsustainable public debt. Its debt situation is actually worse than the private ‘sub prime’ debt of America; America can get back to being a very productive country.

Some of the problems come down to a unaccountable Bureaucracy “the Brussels ” covertly imposing major changes to national law through ‘modifications’ of economic systems. The debacle of the EURO is a prime example of what can happen when elected governments do not ultimately set the rules of the game.

The shear number of unproductive rent-seeker Quangos that already exist in the EU makes any further expansion tricky. Mind, book scanning could be a job creation scheme for unemployed authors.

Mr Hirtle

Robots.txt is the most widely used method for controlling the behavior of automated robots on your site (all major robots, including those of Google, Alta Vista, etc. respect these exclusions). It can be used to block access to the whole domain, or any file or directory within. There are a large number of resources for webmasters and site owners describing this method and how to use it.

Why one rule for web authors and another rule for book authors?

Mr Hirtle

Your words

what Google has done with books is no different than what it has done with the indexing of web sites: it has made electronic copies of the entirety of copyrighted works

This was a …. confused , confusing? statement.

If you can get it wrong about details- perhaps you could be a little more forgiving of others confusions?

Frances

I would like to run a Question by you. It is very wet here and the holiday TV fare is crap, so I have just dug out a copy of ‘a Fist full of Dollars’ for tonight. The DVD literally sits next to the DVD of Kurosawa’s film about a nameless piece of samurai trash called :”Yojimbo”. At times A fist full of Dollars is a very close copy of Yojimbo, in both plot and staging (especially the ‘tennis match umpire’ scene) - I suppose Kurosawa could have sued the pants off Sergi Leonie , but he did not. ( Kurosawa himself lifted the story from an copyrighted American book)

The way copyright is so strictly enforced these days “a fist full of dollars” possibly would have not been made.

The question: The two films have provably *helped * each others sales, and instead of one great classic we have two. Obviously some reuses/thefts are a good thing,… where would you draw the line?

Mr. Walker:

I am sorry if my statement was not clear to you. I want any post I make to be accurate and understandable, which takes time and is one reason why my posts are infrequent. I must have failed on at least the clarity front in this case.

The point I was trying to make is simple: Compare Google Search to Google Books. How does each work?

Google Search makes an entire copy of a copyrighted work (a web page), and then indexes the words in that work. (It does more, but that is enough for this argument.) Google makes this copyright without the permission of the copyright owner, though it gives copyright owners the option of opting-out of its indexing program by creating a robots.txt file on relevant pages.

Google Books makes an entire copy of a copyrighted work (a printed book), and then indexes the words in that work. (Again, it does more with relevance algorithms, but that is not germane to this argument.) Google makes this copyright without the permission of the copyright owner, though it gives gives copyright owners the option of opting-out of its indexing program by completing the exclusion form.

In both cases, Google has made copies of entire copyrighted works. It has done so for the purpose of indexing those works. One of the big differences between the two is that Google Search allows one to view the copyrighted web site via the Google Cache, whereas with Google Books, one can’t even see a whole page of a book, let alone the entire copyrighted work.

As for Yojimbo, I am one of those people who believe that it was heavily influenced by Dashiell Hammett’s Glass Key and Red Harvest, and that the Coen Brothers lifted much from the books (and possibly some of Yojimbo) in Miller’s Crossing.

Mr Hirtle- The web author is able to block google from ‘scanning’ the ‘page’ in the first place. The most a book author can sort of hope to do is retrospectively block Google from certain uses of the scans it has already made.

Are you really trying to say that there is no difference?

And whether this limited right to retrospectively opt-out is really binding on third parties that have other contractual relationships with google is ,I think, a fair question.

Just theoretically, could there be a sort of ‘robots.file’, for Books IE one that blocked scanning in the first place?

New Scientist recently estimated that the dark web ,the web that is not available for indexing, dwarfs the visible web by many orders of magnitude.

Why the libraries have so willingly handed over the one strategic asset that they had , for relatively speaking- sweet FA, is beyond me.

An open source free for all is were I come from , have not met many librarians , provably not that well adapted.

Peter Hirtle

There is two major difference that you have failed to mention.

(1) It is my understanding that all the owner of a web page has to do is place the robots.txt file on/in his web page and that page will not be copied- it is a do not enter sign to the search programs and their owners. For a work to be excluded from Google Books a copyright owner must prove that he is in fact the owner. I know this because the University of Wisconsin and Google made this very clear to me in our email correspondence, transcripts of which are available on my Facbook page, The University of Wisconsin, Google, & Me. The front matter of my book has the equivalent of a “robots.txt file”—

Copyright © 2004 by Douglas Fevens Halifax, Nova Scotia Canada

All rights reserved. No part of this book may be reproduced, or transmitted in any form or by any means, or stored in a database or retrieval system, without the prior written permission of the author.

(2) All web pages are the content of the World Wide Web— they share the same medium, whether they are Google’s home page or yours. Search engines have become a part of that medium and are recognized as such by web owners. My book on the other hand is a stand alone work, without the need of an internet connection. The University of Wisconsin and Google copied my stand alone work and exploited it in another medium for months before I was aware that they had done so.

First, please excuse my poor grammar in the above comment. At first I was going to point out just one difference, but got distracted…

If Google and their their library partners are allowed to produce and exploit unauthorized copies of in-copyright volumes, ignoring the copyright notices in those volumes, then what is to stop the from copying web pages with the robots.txt files? Oh ya I forgot, I can trust Google - Google does no evil.

John Walker:

Just theoretically, could there be a sort of ‘robots.file’, for Books IE one that blocked scanning in the first place?

Jonathan Band, “The Long and Winding Road to the Google Books Settlement,” p. 233:

If a rightsholder provided it with a list of its titles that it did not want Google to scan at libraries, Google respected that request, even if the books were in the collection of one of the participating libraries. (citation omitted)

While not explicitly comparing Google Books’ opt-out provisions to the efficacy of a robots.txt file, Matthew Sag’s analysis of the role of opt-out in Google Books is also very good. See particularly pages 9-10.

Mr Hirtle

Curious— I understood that ‘whole shelves’ were being ‘automatically’ scanned; Are you saying that they actually individually check each title against lists of ‘do not scan’ before proceeding to scan?

And when did Google start placing widespread continuing advertising about the availability of this opt-out list in the worlds mainstream media; Was before or after Google started scanning?

In Germany during the same period, publishers had plagiarizers — who could reprint each new publication and sell it cheaply without fear of punishment — breathing down their necks. Successful publishers were the ones who took a sophisticated approach in reaction to these copycats and devised a form of publication still common today, issuing fancy editions for their wealthy customers and low-priced paperbacks for the masses.— No Copyright Law; The Real Reason for Germany’s Industrial Expansion?

Sound familiar? The article reminded me of Pamela Samuelson’s brief to the court last February where she opposed the settlement.

And if this case goes forward, I will be writing briefs in support of Google, not in support of the Authors Guild. But it’s not just me and the 150 people who signed my last letter who endorse open access. Your Honor should look at the letter from last August from the UC Academic Council, which on behalf of 16,000 faculty members at the University of California, endorsed open access and were concerned that open access — concerns of academic authors would not be respected.— Official Transcript of the Fairness Hearing

And then there is the question of who gets access to the complete Google corpus (which contains works from the world over) by subscriptions— just Americans? If I remember right Pamela Samuelson is the one who brought forward (At the D is for Digitize Symposium?) the point that Google owns the corpus and could if it wanted to sell it…”even to China”. I am sure American’s would feel the same way about this as I do about American’s digitizing my work in the first place.

Mr. Walker:

I believe that whole shelves were scanned at Michigan and UC, but not at the other partner libraries. (Sorry, I don’t have a citation for this belief.) Even with “whole shelve” scanning, some books are excluded from digitization because they are oversized or bound to tightly to be digitized, so there is a weeding process. Furthermore, if someone objects after scanning has occurred, and Google agrees, then Michigan must destroy any digital scans that Google has given to them. (See Section 2.5.2.)

I can’t tell you when Google made this web page available; the Wayback Machine is having problems pulling up the pages that link to to exclusion registration form.

Mr Hirtle

if someone objects after scanning has occurred, and Google agrees, then Michigan must destroy any digital scans that Google has given to them.

What about Googles scans in the above situation, are they also erased?

The claim that the book authors wobbly ‘right’ to object after the event, is even remotely equivalent to the web authors ability to bar entry before the event, is pure sophistry.

PS Mr Hirtle

It is bloody obvious that nobody really knows what is going on , at a meta level. The terms of the GBS can mean anything at all : If ‘it’ = true , then it ≠ ‘it’

the Wayback Machine is having problems pulling up the pages that link to to exclusion registration form.

Could it be that a robot.file is the cause?

Vast areas of the web are not open to indexing. The mistake of assuming that the characteristics of a small nearby area are necessarily typical, of the whole wide picture, is called : exceptionalisum.

James forgive me If I have raised this before.

There is a bit of ‘retrospective application’ about this whole business.

We rarely do retrospective application, partly because it raises “unjust enrichment” issues in the constitution.

I came across an reference to problems of a “Fifth Amendment Taking of private property.” kind ..?

James

I sort of got cut off.. I was wondering what(if anything) does the US constitution have to say on imposed retrospective variations and “unjust enrichment”?

You stated earlier in answer to a question from Douglas

This is hard, for the same reasons as in my previous comment. United States federal courts are actually constitutionally prohibited from giving “advisory” opinions.

It is normal for the Australian tax office to issue ‘advisory rulings’. Is there no US department that could be adapted to the issuing of “advisory” opinions in these sort of matters? — it could save a lot of grief.

Earlier this week TechCrunch reported that Google had acquired eBook Technologies. The title of the Open Book Alliance’s response to this news— “Google Takes Another Step Towards Monetizing Exclusive Content” On Thursday USA Today published, “Why Google acquired eBook Technologies.”

Canadian Recording Industry To Pay $45 Million To Settle Class Action Over Copyright Infringement—Michael Geist’s Blog

I wonder if this would have implications to a lawsuit if a group decided to sue Google in Canada?

A single snippet is no substitute for a copy of my book, but the access to the complete work is.— Me

Google and their supporters insist that because Google just shows a “snippet” that their use of in-copyright works is fair use. I maintain that they use the whole volume in their enterprise so it is an infringement of my copyrights.

Here in Halifax there are to daily newspapers. One is the traditional Cronicle-Herald, the other is a relatively newcomer, the Metro. The Herald is sold through vendors and subscriptions whereas the Metro is free and distributed through street boxes and employees handing out copies to passers-by during rush-hour in the downtown core. The Metro makes their money from paid advertisements in the paper. Google makes it’s money from paid advertisements and has to use the whole book to validate their enterprise and make their advertisements relevant. This was a commercial use of my book and an infringement of my copyrights.

John Walker: The terms of the GBS can mean anything at all.

I strongly disagree with this. The settlement is not simple; it is not always easy to parse. But for the most part its provisions have reasonably well-defined meanings. Most of your questions about what the settlement actually says have clear, simple answers. For example:

John Walker: What about Googles scans in the above situation, are they also erased?

Clause 2.5.2. of the Michigan agreement, which Peter Hirtle referenced to in the comment you were replying to, addresses this issue, as well. Google will not make any use of the scans beyond keeping them in a “dark archive.” That term isn’t defined in the agreement itself, but the customary meaning is a database with no users (other than the administrators who keep the computers running and the data from disappearing).

To answer your other questions, the tax authorities can give advisory opinions, but only about their own activities. Having a governmental body give advisory opinions on copyright issues would mean giving it power to make and apply those issues of copyright law, which, I gather from your other comments, you would be fairly strongly opposed to. A “Fifth Amendment taking of private property” refers to the government exercise of eminent domain.

Peter Hirtle:

In both cases, Google has made copies of entire copyrighted works. It has done so for the purpose of indexing those works. One of the big differences between the two is that Google Search allows one to view the copyrighted web site via the Google Cache, whereas with Google Books, one can’t even see a whole page of a book, let alone the entire copyrighted work.— Comment, emphases mine

Google:

The “Cached” link will be missing for sites that have not been indexed, as well as for sites whose owners have requested we not cache their content.—— emphases mine http://www.google.com/intl/en/help/features_list.html#cached

Whether or not permission is granted automatically through web code I can not say.

Interestingly, clause 2.5.2. of the Michigan agreement only takes effect if the work is both “in print and protected by copyright.” Out of print works don’t appear to be covered even if they are still copyrighted.

It is altogether different Peter.—Me

In the same way that Internet search engines routinely, automatically, and indiscriminately copy web pages as part of the indexing process, the Google Book project requires the routine, automatic, and indiscriminate copying of printed library books whether they are likely to be protected by copyright or not.—Matthew Sag, COPYRIGHT AND COPY-RELIANT TECHNOLOGY, Page 1622

Mr. Sag, there was nothing “automatic” about the University of Wisconsin-Google digitization of my work!!!

James Thank you. The meaning issue I was referring to is what happens to the terms, when the terms are combined. I am also relying on the no ‘mortal judgment’.

What is a dark archive for?

James, the ‘government department’ I was thinking of that could be adapted to issuing ‘advice’ was the US Congress.

Me:

If I remember right Pamela Samuelson is the one who brought forward … the point that Google owns the corpus and could if it wanted to sell it…”even to China”. I am sure American’s would feel the same way about this as I do about American’s digitizing my work in the first place.

Pamela Samuelson as quoted in the Library Journal:

“I don’t think Google would be scanning all these books if they thought they were all valueless,” Samuelson added. She said she wouldn’t worry about price gouging if Clancy “could live forever and could keep to all his promises.” The settlement “gives Google the right to sell the corpus,” she said. “Suppose they sell it to Rupert Murdoch… Wal-Mart… They could sell it to China! There’s sort of a ‘too big to fail’ problem.” — emphasis mine

I think some people may be misunderstanding the nature of the robots.txt file and my original point. So let’s look at the legality of internet search engines (excluding the issue of trespass to chattels) versus the legality of the initial library books project (not the ASA).

Internet search, as Mathew Sag noted in the provided quote, “routinely, automatically, and indiscriminately copy web pages as part of the indexing process.” Since reproduction is one of the exclusive rights of the copyright owner, a search engine would normally not be able to copy a web page without explicit permission from the copyright owner. The copyright owner would have to include a file that says “index this site”; otherwise the site would be off-limits.

Search engines instead have successfully relied on arguments based on fair use. Because their use is fair, there is no infringement, and no permission is needed. And to bolster their fair use argument, they have adopted two practices. First, they have voluntarily agreed to respect a robots.txt exclusion. (Most will also respect “no cache” and “no archive” tags as well.) When a robots.txt file is present, well-behaved web crawlers will stop copying the page. This is voluntary on the part of the crawler, however; one need only look at a site’s log files to see that there are many crawlers that ignore the robots.txt restriction. Most web sites will also allow users to ask that sites be removed from an index even after they have been crawled - though note that the Internet Archive does not destroy the web pages crawled by its commercial partner Alexa when it receives a request, but rather just puts them into a “dark archive” from which they cannot be retrieved.

The default feature of Internet search, therefore, is that the search engine is presumed to have the right to reproduce the copyrighted work for indexing purposes. The copyright owner can elect to “opt-out” of the system, and most search engines will respect her wishes, because it would make their fair use argument stronger. (As far as I know, though, no court has said that they must obey a robots.txt file in order to have a fair use defense. I would happily be corrected on this.)

So now we turn to the Google Books project. Again, we have entire copyrighted works being copied for indexing purposes. And again we have a two-part system to strengthen the fair use argument. Just as with Internet search, a copyright owner can take an action prior to indexing to prevent the reproduction from occurring. Rather than preparing a robots.txt file, she must complete Google’s exclusion form. And as with Internet search, the copyright owner may request that a copyrighted item that has already been copied be removed from the index. As I said earlier, “the big difference between the two is that Google Search allows one to view the copyrighted web site via the Google Cache, whereas with Google Books, one can’t even see a whole page of a book, let alone the entire copyrighted work.”

With both Internet Search and Google Books, copyright owners must take proactive steps to opt-out of indexing. The indexer is not required by law to respect those requests, but most do because it strengthens their fair use argument.

It is always possible that a court could figure out some way to such that Internet search is a fair use while Google Books is an infringement. But at least on its surface, Google has made reasonable efforts to make the latter mirror the practices of the former.

Peter, could you or James refer me to a court case in which search engine webpage indexing (and caching, for that matter) have been held to be fair use?

Michael Capobianco: Peter, could you or James refer me to a court case in which search engine webpage indexing (and caching, for that matter) have been held to be fair use?

The main cases hare are:

• Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003)
• Field v. Google, 412 F. Supp.. 2d 1106 (D. Nev. 2006)
• Perfect 10 v. Amazon.com, 487 F.3d 701 (9th Cir. 2007)

Thanks, James. I was familiar with the Arriba Soft and Perfect 10 cases, but for some reason not Field v. Google, which is the most relevant.

Peter - Thank you.

On the assumption that in these cases the web page indexing was found to be fair use; Why were these cases not relevant to the fairness of indexing of books case?

Will the material in these dark archives, after the term of copyright, be made public?

Internet search, as Mathew Sag noted in the provided quote, “routinely, automatically, and indiscriminately copy web pages as part of the indexing process.”— Peter Hirtle

It is not “indiscriminately” because the search engines respect robots.txt files and people who design web pages know this and can prevent the copying in the first place. (As was part of the decision in one of the court cases above). The copyright holder knows that by making his web page a part of the content of the WWW it is exposed to searches and their nature.

Every major Internet search engine relies on the Robots Exclusion Protocol [Robots.txt] to prevent their automated agents from indexing certain content and to remove previously indexed material from their databases as required.— emphasis mine Matthew Sag, COPYRIGHT AND COPY-RELIANT TECHNOLOGY, Page 1667

The problem with your comparison Peter, is that you are saying that if my book was a web page it would be fair use. My book is not a web page, which brings me back to this question.

Mr Hirtle.

For what its worth, I think that “fair use world” is fair enough ( infinitely preferable to ‘Guild world’). As best as I understand it, Google respects the preemptive robot protocol. There is a difference between opt-in and opt-out.

Question about “eminent domain” An attempt (by the NSW state government) to compulsorily acquire some privately held commercial land and then transfer the title to a private shopping center developer , ran in to legal problems. In the US whats the law when it comes to the compulsory transfer of assets from one private entity to another private entity? I.e from the unknown authors to the Known Authors.

And- Could a sort of ‘adverse possession’ apply in the case of old and provably unoccupied orphans?

Thanks

The GBS, under the hood of ‘opening things up’ actually looks like an attempt to take ‘fair use’ off into the distance *and * kill it . Everything I know from years of ( reluctant) direct experience of artist ‘guilds’ and their very interlinked licensing industry makes me believe that this is the real intention and driving purpose behind the particular direction this case has taken.

PS Curious.. has there been much out of the guild world , lately?… Its the funny thing about all these Copyright things .. the first thing step is, the creatives are removed from the table, and then replaced by representatives.

No fair use, no exceptions, makes the licensing industries preferred business model; Compulsory collective monopoly the “most efficient way of managing the right”.

John Walker: Why were these cases not relevant to the fairness of indexing of books case?

If the fair use case goes to trial, these cases will form the basis for Google’s argument that its indexing is a fair use. Most of the legal commentators I read (including, I believe, James Grimmelmann) believe Google’s use would be found to be fair, but there are exceptions. But no one can say with certainty whether Google’s indexing is fair or not fair until 5 members of the Supreme Court have their say.

If you want to know more, I encourage you to read deeply in the bibliography on Google Books maintained by Charles Bailey. For a recent student article that suggests that the 2nd Circuit, at least, would not have found for Google, you can see this.

John Walker: Will the material in these dark archives, after the term of copyright, be made public?

To which “dark archives” are you referring? With Google, I assume that is the case, though I have never seen a statement from them. I have not seen an explanation for the Internet Archive’s actions.

John Walker: In the US whats the law when it comes to the compulsory transfer of assets from one private entity to another private entity? I.e from the unknown authors to the Known Authors.

I am not sure your purpose in asking this question. The only copyrights that I can think of that were ever seized and sold by the government concerned Axis copyrights and patents confiscated by the Alien Property Custodian’s Office and sold to support the war effort during World War II.

One of my major objections to the initial settlement was that the Author’s Guild demanded that unclaimed royalties on orphan works be distributed to the participants in the Books Rights Registry. It was taking money due to one private entity and giving it to a different group that had no right to it.

Mr Fevens: What is the legal difference between respecting a request not to reproduce a copyrighted work that has been created in the form of a robots.txt file versus one that has been created by completing an online form? In both cases, is not the search service deferring to the request of the rights owner (perhaps in ways that are not required by the law)?

Dark matter cannot be seen - There was some sort of slightly recursively nervous, reference to not, finding a ’ heart of darkness’, made at sometime by one of the Google spokes-persons .
Why not do like the libraries and erase ? Why the difference?

I am not sure your purpose in asking this question.

One of my major objections to the initial settlement was that the Author’s Guild demanded that unclaimed royalties on orphan works be distributed to the participants in the Books Rights Registry. It was taking money due to one private entity and giving it to a different group that had no right to it.

The money will still ultimately be redistributed to authors known to the guild(s) , these author groups are very interconnected—- so whats the difference ? Isn’t the change a pretty inadequate fig leaf? Rent is rent.

The power of law (the state) is being used to force the transfer lots of individual rights (of control of usage) to a self appointed entity -the class representative- to manage for a while . It is “Unjust enrichment”, both because the ‘compensation’ is not being paid directly to the actual individual right holder and because the amount of compensation is not directly calculated on the basis of the value of the individual title, individual title by title.

Why pay rent to Known Authors to ‘represent’ Unknown authors?

Why not just pay the remaining Authors Guild members their 6o dollars ?

Ever read “Rent seeking in the Grampian Hills”

Peter

I perhaps, was not clear enough . There is a difference between a Government resuming private property rights for public usage and the government forcing the transfer of title, over usage, from one private hand to another. Hence questions about “unjust enrichment”.

Can a web rightholder somehow detect that a robot has ignored the ‘Robots Keep Out’ sign , walked through the door and taken scans; If the resulting scans are kept in a dark place?

Peter-

The first article I read on this blog was GBS: Richard Epstein Weighs In

It contained these words from Richard Epstein:

The root difficulty lies in the simple fact this proposed settlement goes far beyond the contours of the original complaint……

And

Any mortal who reads the Google settlement, as I have, will be defeated by its obscurity and complexity.

Regarding Peter’s question, What is the legal difference between respecting a request…

If you are looking for me to quote a law or refer to legal precedence, I can not, but common sense says the a robots.txt file prevents any copying by any reputable firm in the first place where as, in my case, my work was copied and then when I found out, I had to opt out of that particular firm’s [Google & Company]enterprise that did not respect copyright notices.

The settlement doesn’t go ” far beyond the contours of the original complaint”, The settlement recursively draws the outer line of the original complaint, just about the only thing that is not inside the resulting figure is fair use.

It is what is missing , in the picture, that tells the story.

The collectives do not like fair use, no management fees .

My wife is a historian, she loves Kundera’s tale about Vladimir Clementis’s hat. History is often about what has been painted out. The man who wears the hat in the official picture is not always the person who brought it to the meeting.

Mr Hirtle

I make representations for a living. Art is the lie that tells the truth; the one thing that a representation can never be is the thing it represents.

The Guild represents ‘authors’. And the settlement represents ‘fair use’ some time in the distant future.

“Nothing like commercializing a library.”— Me

Orbis gets new look— Yale Daily News

After a recent facelift, Yale’s library search system is taking a page from another popular search engine: Google. … Google Books now provides cover images for books when available, and the system will automatically refresh and add new results as Google updates its content, Sprague said.

An Orbis library card.

Another difference.

Every search result requires both a user to contribute a search query, and websites to contribute the content to be ranked. Neither users nor websites are passive participants; both can be wildly, profoundly biased. Emphasis mine, James Grimmelmann, Some Skepticism About Search Neutrality, Page 446

I certainly was not a participant in the digitization of my work by the University of Wisconsin and Google!!

1709blogtoo-many-california-girls

For Many Music publishers using a tiny snippet is not fair use.

From the above post

The incident highlights the potential deviation of interests between writers/performers and the publishers managing the rights. The Beach Boys, when asked, responded that they love Perry’s song and appreciated the influence their own song had in the creation of California Gurls.

On the other hand

Music publishers like Rondor, by contrast, don’t appreciate imitation without remuneration.

The collectives dont like it either.

These realities make it difficult if not impossible to engage in lawful large-scale book digitization projects, thereby denying the public the full corpus of 20th century books and, perhaps, unknown benefits of future creativity and economic innovation.— United States Department of Justice, Page 3, Emphasis mine

The content of the books digitized by Google & Company cost many billions of dollars to produce. The cost to Google to obtain that same content is millions of dollars. If Google & Company was serious about respecting the copyrights of others they should be willing to pay the money necessary to secure permission to copy. The Department of Justice is just giving Google an excuse not to even try.

Regarding comment.

Leadership could have alternatively come from Canadian Heritage Minister James Moore and his department. Yet despite the fact that a national digital library would seem like a perfect fit for a department mandated to increase access and visibility of Canadian culture, the federal government has been largely missing-in-action or even hostile to proposed action.— Michael Geist’s Blog, Canada’s Grassroots National Digital Library Takes Shape

It would seem that Mr. Moore prefers foreign interests to control our access to our literary heritage.
Douglas Fevens, Halifax, Nova Scotia

If Google and their their library partners are allowed to produce and exploit unauthorized copies of in-copyright volumes, ignoring the copyright notices in those volumes, then what is to stop the[m] from copying web pages with the robots.txt files?— Me, January 12, 2011

I am still wonderin’

Oh, definitely. Libraries got used, universities got used. I think the scanning program is one of the biggest examples of corporate welfare from universities in history.— Siva Vaidhyanathan in Publishers Weekly

My response in the comments section:

I would not be so quick to let universities off the hook for their role in the Google Books Project. The commercial partnership— the University of Wisconsin-Google partnership— digitized my work in 2008. The University of Wisconsin and Google were no better than school yard bullies taking what the[y] wanted without regard to the rights of others. The university not only gave Google my book but they also gave it the university’s good name. The university could have said to Google, “Since there is no law or legal precedence that says digitizing a book and exploiting those copies on the internet is legal, come back and talk to us when you know for sure that it is.” Instead on their website the university says, “Google has designed the project to comply with copyright laws.” and “The Libraries will not violate copyright laws.”

The university has refused to apologize to me for their role in making illicit copies of my book accessible on the internet. On December 20, 2010 I wrote a letter to Mr. Kevin P. Reilly, President University of Wisconsin System, with a refund for my book and a demand that they return it to me.

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

And about twenty minutes later (there were a few hiccups) we walked out of the store with a still-warm $17 copy of Huck, complete with all the stamps and scratches of the Google Books scan it came from.— Gothamist, Dane Neller, CEO of On Demand Books

Meanwhile, I’m still wonderin’.

In regards to Canada’s copyright reform bill, the Canadian Bar Association has released Submission on Bill C-32, Copyright Modernization Act.

Google, antitrust, and the ‘Copygate’ hypocrisy— ‘We can copy. But you can’t’, Cade Metz, The Register More on the Google-Bing thing.

From IBM’s Watson Supercomputer Wins Practice Jeopardy Round in Wired Magazine: “Researchers scanned some 200 million pages of content — or the equivalent of about one million books — into the system, including books, movie scripts and entire encyclopedias.”

It seems unlikely that IBM got permission to scan one million books. Can we expect soon a lawsuit from the Author’s Guild against IBM and the producers of Jeopardy! (which, after all, is profiting from this scanning)?

US bookshop Borders Group files for bankruptcy— BBC

More at Publishers Weekly on the espresso book machine in this comment. I wonder when Google will start charging for downloading public domain works? Or, perhaps you will not be able to print off the book without printing off inserted advertisements as well??

On December 19, 2010, James Grimmelmann, an associate professor at New York Law School, and a noted expert on the Google Book Settlement, stated on his blog, The Laboratorium “Google has a plausible fair use defence for its scanning and searching and definitely seems to believe that its interpretation of the law is right. You [Douglas Fevens] would disagree. But there is a disagreement to be had.”

A quote from a comment I made in response to Bullying Can Happen in College, Too at The Chronicle of Higher Education.

Dear Peter Hirtle,

What a silly question. Do you think the human contestants have a license for all the material they “scanned” (read) to get the answers they gave? Do you think they should. Do you have a license for everything you know?

However, it appears that IBM did get a license for everything they fed into Watson.

http://www.infoworld.com/t/business-intelligenceanalytics/how-ibms-watson-hammered-its-jeopardy-foes-798 Unlike Google and its Books project, IBM chose to obey licensing rules. “If we don’t have a license, we don’t have it,” notes Chu-Carroll.

It’s unlikely that the source material fed into Watson could be recoverable. I’m just guessing, but it seems likely the data is stored as database indexes and isolated words and phrases, not complete works.

Rob: scanning, which involves making a reproduction of an item and hence may infringe on copyright, is not the same as reading.

I appreciate very much there reference you provide, and to learn that IBM engineers were at least aware of the problem. Given the complexities of copyright, I doubt if they got it right. For example, in the article you cite, the following is found: “‘We do have things from Project Gutenberg,’ explains Chu-Carroll. ‘Things like Wikipedia. But primarily free text that is available to us: dictionaries, encyclopedias, newspaper articles, things that…cover ‘Jeopardy’ topics well.’” When she speaks of “free text,” is she referring to its licensing, or to its structure? If the latter (as I suspect it may be), what is the difference then between Wikipedia free text and that found in an encyclopedia? With Wikipedia, have they followed the Attribution and Share-Alike requirements of the license? And for the information they licensed, do those licenses really allow IBM to download the entire content and reuse in a new way? Most of the licenses for databases that I have seen would not allow this in their standard terms of use. Did IBM negotiate new agreements with every provider? It is possible, but it seems unlikely.

In short, I am happy to be corrected and to learn that IBM was aware of the licensing issues associated with the content they loaded into Watson. Given the complexity of copyright licensing, however, I find it hard to believe they got it all right - even if they had a lawyer sitting at the shoulder of each scientist.

In regards to this comment.

The complaint also said Google violates web guidelines and disregards some websites’ warnings not to list their content in search results, including pages from the French senate website, France’s competition authority and the EU-backed online library Europeana. This gives Google’s search results an unfair advantage over rivals, 1PlusV said. By showing Google Books pages in its search results, the company may be violating the search engine’s own anti-spam rules, 1PlusV said. Google Competitor Files EU Antitrust Complaint Over Ads, February 22, 2011

A common view is that technologies are threatening to eliminate that category [“Practical obscurity”], making information either secret or public.— James Grimmelmann

As many of you know the work of mine that was digitized by the University of Wisconsin and Google was my family’s history and genealogy. If I had known that it was to be digitized and made searchable on the internet just four years after publication, it would not have been published at all. Google now has a database of my family, many of whom are Americans. You say what’s the problem? For one thing, this is.

United States privacy law is clear: there is no protectable privacy interest in preventing the disclosure of information that has already been voluntarily published by the person making the claim. Putting the information in a book and distributing copies to the public is, in privacy law, very close to the exact opposite of keeping something “private.”

Your right James, the information is public, but a person had to work to access that information and would have to work to build a database. This is why the digitization of genealogical works may be a boon to genealogists in the short term, but in the long term I feel it will discourage people from participating in future family research projects because of the fear of that easy access to all information that so many people want.

Two questions come to mind.

First: what if copies are not published for distribution to the public, but only to a family circle, or employees of a business, or members of a society or other organisation? Does the concept of a ‘private publication’ not mean anything? And if not, where does that leave, for instance, the ‘confidential’ business document? Or the ‘restricted circulation’ newsletter?

If Douglas, instead of getting an ISBN number and selling a copy of his book to Univ. of Wisconsin, had marked his book ‘For Private Circulation Only’, would that have given him and his family any better legal protection against having the work digitized and made publicly searchable worldwide?

Secondly: date of birth and mother’s maiden name are core ID elements. A work of genealogy that includes these and similar details relating to living subjects compromises their identity security. It potentially puts them at increased risk of identity theft and other kinds of swindle. What remedies, if any, do those individuals have?

Family history is a popular hobby in the UK, and I believe in other countries also. I do not know if it is usual for family historians to ask permission before recording and circulating data about their family connections. I know that not all of them have done so in the past.

About ten years ago, there was beginning to be quite a large amount of personal information relating to living subjects freely available on various genealogy sites. Then there was a debate among amateur genealogists as to the propriety of this, and much if not all of this info was pulled from the public web. It is my understanding that EC data protection legislation was a major factor in encouraging family historians to consider the privacy and data security implications of processing and publishing data on living individuals. [See Genealogy Privacy. Code of Conduct of the Amateur Genealogist.]

“[N]either birth records nor marriage records are private documents.” Ruffin-Steinback v. DePasse, 82 F. Supp. 2d 723, 734 (E.D. Mich. 2000). The basic facts of genealogy — names, birth and death dates, marriages and divorces — are all considered public information, and not subject to privacy suits.

The only exception I am aware of is adoption records, in which the identity of the parent(s) placing a child up for adoption can be sealed. That’s a confidentiality duty, though, not a general privacy right. The adoption agency is under a duty not to disclose the information, but one who learns about it through other means is, I believe, free to share it with the world.

If Douglas, … had marked his book ‘For Private Circulation Only’,— Gillian

I would not have been able to donate a copy to the local library and provincial archives, and most likely they would not have been able to accept such a donation even if offered with such a restriction. I believe I would still be responsible for sending two copies to Libraries and Archives Canada to fulfil my Legal Deposit obligations. (But I could be wrong)

Thanks for the info, James. That is rather what I suspected.

I think that Douglas is right that savvy people will be very wary in future about taking part in family history projects. And not only family history projects, but other kinds of social research as well.

I also think that digitization without permission - whether or not there is a fair use defence - is likely to mean that many people will start to think twice before offering material to archives.

Gillian There are potential conflicts with the Human Ethics Guidelines that cover all sorts of academic research involving humans. These conflicts are a bit of a threat to the trust that is essential to all research involving humans. Under Human Ethics Guide lines the consent to give personal information , be it words or blood samples , only applies to that particular research projects stated purpose. The digested results of the research can be used in other projects. But the personal information that the project was based on can not be reused for other purposes without fresh consent. Two examples - The consent given for use of a blood sample for testing for performance enhancing drugs , is not consent for future reuse of the sample for research into genetic diseases. The consent to give an interview about your practice as a sculptor (for a history thesis) is definitely not consent to being critically compared with another sculptor also being interviewed for the same history thesis.

John, if you are trying to argue that the reuse of Douglas’s genealogical information was a violation of human-subjects research ethics, then the person who committed the ethical violation would be Douglas, by publishing the information. Somehow, I don’t think that’s what you want to say.

Human-subjects research guidelines draw roughly the same line between “private” and “public” information that tort law does. Here too, putting something in a published book essentially eliminates any claim that it constitutes private information that must be protected and not reused. Publish; public: same root, same idea. The U.S. regulations, for example, simply do not apply if the research consists only of “the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publicly available.”

Gillian I believe the correct link to Genealogy Privacy. Code of Conduct of the Amateur Genealogist is http://homepages.rootsweb.ancestry.com/~mckinlay/pdfs/CodeofConductoftheAmateurGenealogist.pdf

James

If Douglas obtained consent for the use of the information for the purpose of his project , then Douglas has not breached any guidelines. For an academic to reuse any identifiably personal information contained in James paper (without fresh consent) could be an ethics issue.—- God knows, but going off the ones at The Australian National University - I would not like your chances.

“putting something in a published book essentially eliminates any claim that it constitutes private information that must be protected and not reused. ”

There are a lot of research papers in university medical, anthropology libraries, that were supplied at a time when the “public” in these libraries was not the general public, the audience was pre-filtered; they were people who were academic researchers. This is still the case with quite a number of specialist university libraries , entry is strictly by invitation only. The web keeps connecting things that were previously not connected , “public” can mean all sorts of things , depending on the context.

John, your interpretation of the limits of legal research would make publication of an unauthorized biography illegal. That alone should give you pause. If it does not, I can do nothing further for you.

(“Do nothing further for” is perhaps a little strong; let me rephrase that to say that I doubt that anything I could add would be likely to change your mind.)

james Was talking about human ethics guidelines , not public law. Nor was I saying that they are necessarily a totally good thing, simply that they are real and can not be ignored in the context of academic use of scanned information.

They do have impacts upon what is not done in Academia.
My partner Anne, was one of the few of her years masters students to attempt research about living subjects. The ethics committees are very intimidating and their powers are real; they have at times resulted in the shaming/punishment and even the dismissal of high ranking academics.

Plenty of unauthorized biography’s are lawfully publicly published in Australia- But they are not academic research publications.

There are a lot of cross, cultural understandings issues buried in this, for example there is a lot of indigenous cultural information in various academic publications libraries, museums and other data bases that was given on the understanding that it would remain “Secret Mens Business” only to be seen by a select few - not for public viewing by women, children and the initiated.

James

Please, I was reporting a ‘mind’; A mind that often reminded us of “Catch Twenty Twos” Major Major. It is not how I think.

It should have read- “women, children and the uninitiated.”

Let me try again: Genealogy Privacy. Code of Conduct of the Amateur Genealogist

Modernism was defined by the, often reluctant, acceptance of multiple view points and the realisation that all views are human constructs.

In a picture multiple view points result in multiple vanishing points- a inherently, eternally unstable ,changing picture because, the viewing point (not the picture) keeps changing.

PS I am not advocating any sort of Cultural relativism.

I am not a writer, nor researcher, and you will not find these pages particularly well written, but when I started researching our family history it was just to satisfy my own curiosity. “Where did my ancestors come from? What were their beliefs?” For the most part these questions remain unanswered, but I wish to pass on what I have learned of the Fevens family, so at the least, I hope you find my efforts readable and informative.— Douglas Fevens, Fevens, a family history, Forward, Page VIII (Emphasis added)

Does my book meet academic standards? No, not even the standards outlined in the document that Gillian referenced. A number of relatives that have the book, have told me that their copy is marked up with notations and they have added notes to the blank pages at the back of the book. This is good.

“Does my book meet academic standards? No, not even the standards outlined in the document that Gillian referenced.”

This is not meant to be a boast, just a statement of fact.

“The Google Books Settlement: A Private Contract in the Absence of Adequate Copyright Law” by Jenna Newman is a thoughtful, and in some ways the most practical, treatment of the settlement I’ve seen, from a publisher’s prespective. It’s at http://www.src-online.ca/index.php/src/article/view/29/44

As most of you folks know my work was copied by the University of Wisconsin and Google, but it is the Wisconsin Historical Society that owns the copy used. (Location: Historical Society Library Stacks) The Wisconsin Historical Society is, like the University of Wisconsin, a State agency.

Legal constraints require that all copying comply with the U.S. Copyright Act (Title 17 of the U.S. Code). According to that law, most publications issued between 1928-1977 and all works issued after 1978 are protected by copyright and can only be reproduced according to “fair use” guidelines. Fair use has been interpreted by the courts as a single copy of an article or a short portion of a book, such as an individual chapter. Reproducing an entire copyright-protected book, even for private study, is against the law. You are responsible for compliance. Consult the U.S Copyright Office for more information on the copyright law.— Obtaining Copies from the Library, Wisconsin Historical Society, Emphasis mine

the University of New South Wales (one of the top ten in australia) has begun to throw out rare old library books and newspapers, not needed in the digital age. Librarians (and libraries) take up a lot of money and space ,get in the way of efficient management practices .

www.smh.com.au/national/letters/truth-stranger-than-fiction-as-uni-pulps-books-20110308-1bmow.html

Back in 2009, a couple of weeks after I discovered that my work had been copied by the University of Wisconsin and Google I wrote to the Association of American Universities of which the University of Wisconsin-Madison is a member. I feel that like the student that gets caught cheating, the university should be confronted. I have never received a reply to my letter which I have posted to my Facebook page (The Association of American Universities) Am I overlooking an avenue to confront the university (other than the courts)? (Related: comments here and here.

“(Related: comments here and here.”

The first “here”. Sorry.

In reply to Stuart and Frances’ comments at “The Passive Virtues”

I find it interesting that Stuart’s and Frances’ comments show how their heads are still firmly entrenched in an old reality, where the vast majority of copyrighted works were published using a professional publisher, or if not that, with at least a significant investment of money and effort, which would leave a “trail” to follow.

I rather doubt that Stuart’s rightsholders-hunters have tools which would (at a reasonable cost) enable someone, say 50 years from now, to publish a book which was a mashup of excerpts from hundreds of old abandoned blogs (archived at archive.org or its ilk), many of which were hosted on long-defunct blog hosting services, either pseudonymously or by people with very common names (although I do admit that even for people with common names, social networking sites like Facebook typically do leak enough information to make locating the rightsholder feasible —- but not all of this kind of content is published at such sites). Not to mention that many countries (e.g., EU) have strict data privacy laws which could raise even greater impediments, making finding even a single rightsholder in cases like these practically impossible.

Re: Comment

The minority Government of Canada has been defeated in a non-confidence motion by the opposition. An election is expected to be called later today. The ending of this parliament also means the end of Bill-32, Canada’s copyright reform bill. (Another Copyright Bill Hits the Scrap Heap: Taking Stock of Canadian Digital Law and Policy Reform, Michael Geist’s Blog)

In China Baidu deletes 2.8m online works due to copyright tussle

Ron-

I believe my comment referred to the GBS and Google’s claim that finding rights holders would be too expensive now. The future is far less certain. But it’s coming fast. The mashup you describe, which in my old-fashioned way I would call “an anthology,” could likely be accomplished with links. And that’s already happening.

Rather than asking students to pay for educational materials—coursepacks, anthologies, textbooks—you’ll find that these days teachers are providing links to postings (very often unauthorized postings) of copyrighted material. Some instructors so poorly instructed in copyright restrictions simply post the material on the schools’ web sites. It was inevitable and it’s spreading.

I’m painfully aware of the new reality you describe. I’ve got the DMCA “take down” letters to prove it.

But I think the mash-up you propose is also very “old reality.” I expect that one day there will be an app for that. We could call it Google Anthology, though I’d rather not. And not only an app that pulls together a selection of materials into a personalized anthology or textbook, but an app that pulls together all the works by an author posted on the internet legally and illegally, thereby eliminating the necessity of an authorized copy of that author’s book. Not all authors write for the money, but it often helps provide the time required.

Perhaps it’s a function of age. Perhaps I’m a fuddy-duddy. I was taught that if I couldn’t afford something, I either had to work very hard and earn the money to buy it or live without it. Hiring a team of private investigators to track down rights holders to create the mash-up anthology you describe might be the least of it—there’s a beautifully restored vintage Mercedes-Benz 280SL I’d love to own—but I don’t feel the sense of entitlement that seems to drive these arguments in the “new reality.”

In fact, the only entitlement issue surrounding the GBS that I agree with is the point of view of the visually impaired, who turned out in force at the GBS Fairness Hearing, hoping for greater access to more books. And if Google had wanted to find a way to help them without trampling on the rights of others, the writers I represent would have been at the front of the line to authorize the scanning.

But the thwarted desire to create a mash-up?

‘I feel it would be another example of Americans defining laws to suit their own needs. “Card Catalogue” my ass.’ — Me

….despite the fact that it’s very clearly fair use in the United States for Google to digitize any copyrighted book and use snippets of it in search results.— Ryan Singel, To the Whingers Go the Spoils in the Google Books Decision (emphasis mine)

I wonder if Google’s new “+1” button is a take off of Facebooks “+1 Add as a Friend” button? (While not signed into Facebook, click on my name above and you will see Facebook’s “+1 Add as a Friend” button.)

Google’s Larry Page must mend image of firm, self, James Temple, SFGate

Larry page takes over as Google’s CEO tomorrow. Siva Vaidhyanathan is quoted in the article as saying,

“I think that with Larry Page taking over Google, it’s going to be more arrogance and more idealism, at the very moment when he should be humble and realistic, in order to get through these very real regulatory pressures,”

I, of course do not care who is in charge, for to me they just a bully that does not accept their uncaring appropriation of others property as being wrong. Judge Chin had it right:

As one objector put it: “Google pursued its copyright project in calculated disregard of authors’ rights. Its business plan was ‘So, sue me.’” — Objection of Robert M. Kunstadt to Proposed Settlement 3, ECF No. 74). — Page 27

Objection of Robert M. Kunstadt

James, will the April 25th status conference follow the same format as the October 7, 2009 conference? Thanks. (transcript)

I expect so, at least in broad strokes.

Michael Geist is reporting that the Global Information Technology Report 2010-2011 has been released. From Michael’s post:

In addition to this data, the report also includes several legal ICT [Information and communications technology]rankings including Canada ranking 10th for laws relating to ICT (ahead of the US, UK, Germany, and France) and 13th for intellectual property protection (ahead of the US, UK, and Japan).

With the settlement rejected I wonder if the parties will settle out of court? I mean if there were side deals made and those deals resemble the Hachette Livre deal is there any incentive for the plaintiffs to continue if Google covers their legal expenses? The United States has reinforced Google’s hand with their “[we do] not want the opportunity or momentum to be lost” statement but the “fair use” defence is still not a slam dunk for Google and they may want the lawsuit to just go away. They may be content to handle lawsuits such as the Israeli one as they come up. “Divide and conquer.”

Interesting that Israel and Canada would come up in the same post here. They’re two of the only countries in the world whose legal systems have recognized fair use as a consumer/human right, as opposed to merely being an affirmative defense. (Both decisions are pretty “fresh”, we’ll have to see how they hold up over time.)

Hmm, this Israeli guy Yonatan Brauner who is suing Google isn’t exactly a well-known Israeli author —- he’s published exactly one book. He seems to be, however, the Executive Vice President for Creativity at a large Israeli advertising firm (since the end of 2009, link autotranslated by Google). Hard to be sure, I don’t know how common that name is in Israel.

I have to admit, suing Google in order to get media exposure is pretty creative.

Further to this comment, a comment at the Public Index Blog (comment).

With Google Settlement in Limbo, Universities Forge Ahead With Research on Digitized Books

Indiana University and the University of Illinois plan to establish a center for computational research on millions of digitized texts, many of them scanned by Google.

James, I read on another blog that no one has filed a notice of appeal to Judge Chin’s opinion and the deadline for doing so has passed. Is this correct? Thanks, Douglas

@Douglas: I tentatively believe so, but I am not a civil litigator and have not read the applicable rules closely.

James if this is true, dos it mean that ‘it’ has ?? ended??

Google loses Copiepresse appeal

Any thoughts?

New API’s for your browser permit real-time browser-to-browser communication

Am I right to think that this could have big implications if widely adopted.

At the moment in ‘distribution’ there is a relatively small number of strategic nodes/bridges on the web - ISP’s, companies distributing software aimed at file sharing and so on. These points/bridges are big enough i.e cost their builders enough to make them adverse to loss and are relatively rare enough, to make attempts at control, at least theoretically and economically possible. If these nodes were to become much more widely distributed it would be a very different game- the big companies could be like big, powerful, expensive, battleships in the age of small cheap aircraft.

Three French publishers have filed a new suit against Google. French publisher starts second round against Google

John,

This browser-to-browser API would change little, since the communications would still be going through the infrastructure of the ISPs. The only strategic nodes who would be removed are centralized servers which are necessary for some kinds of P2P (and other communication) protocols.

Anyway, the genie isn’t going back inside the bottle. Soon storage media will so cheap that people could just send each other the information they want to exchange using regular mail, while social networking provides the necessary information to optimize the locality of exchanges (degrees of connection).

Google euthanizes newspaper archive scan plan The Register

On Thursday, The Boston Phoenix, one of the newspapers participating in Google’s program, announced that the web giant had sent an email to it and other publishers saying it is no longer accepting, scanning, and indexing microfilm and other archival material from newspapers. Google confirmed the news with The Register.

Ron thanks

But can you sue a ‘pipe’?

In the hypothetical situation we are talking about, could an ISP monitor all that traffic between millions of Minny Me P2P servers?

But can you sue a ‘pipe’?

I feel dumb giving a legal opinion here, but my impression is that some kinds of communication providers, like telephone companies, meet all the legal requirements to be considered “common carriers”, after which US law explicitly protects them from any liability for the communications they transfer for their customers. I am also under the impression that ISPs do not in general qualify as “common carriers”, but I’m not sure why.

could an ISP monitor all that traffic between millions of Minny Me P2P servers?

ISPs do not in general monitor the content of the communications they transfer for their customers; however, most P2P protocols are easily detectable via technical things like TCP port numbers and/or via analysis of the communication traffic solely on a quantitative level vs. time and origin/destination. This is (probably) how some ISPs (allegedly) “throttle” such traffic during specific hours or when their network capacity is close to being overloaded.

This week’s Chronicle of Higher Education has a series of articles called The Copyright Rebellion.

• A Professor Takes His Fight to the Supreme Court

• Institutions Lock Away Millions of Works

• Advice: What You Don’t Know About Copyright, but Should

• Forum: What’s at Stake in the Georgia State Copyright Case (Siva Vaidhyanathan is a participant)

This might involve sour grapes but there is a familiar ring to it none the less.

Google hands millions to ‘independent’ watchdogs

What do you do when a global corporation pays out millions to the watchdogs that we expect to protect us against it? It’s a fair question to ask in light of the Chocolate Factory’s legal settlement this week, over Google Buzz. The privacy class action suit has landed a windfall of millions of dollars to “privacy” groups - but not a cent to ordinary citizens, users of Google Gmail’s service whose privacy was compromised.

As James posted yesterday at the Public Index Blog, the University of Michigan plans to make what it considers orphan works available to those who have authorized access. The Chronicle of Higher Education quotes Peter Givler, executive director of the Association of American University Presses:

We all know that orphan works are a problem, and we would all benefit from a good solution. The plain fact is, though, that their orphan status isn’t determined by the elfin whimsy of private parties, but federal law. It’s up to Congress to fix it, not Google or the University of Michigan.

I wonder if Google’s appointment with the U.S. Senate on September 21st (What’s really at stake in the Google antitrust case?) will influence how they present themselves on the 15th?

James reported at the Public Index Blog awhile back:

University of Michigan to Make Orphan Works Available

Here is an update:

Major Libraries Join Controversial Project to Publish ‘Orphan’ Books Online

The plain fact is, though, that their orphan status isn’t determined by the elfin whimsy of private parties, but federal law.

Is this Peter Givler even a lawyer? Because it seems to me (a lay person merely interested in this topic) that there is no such thing as “orphan status” in current US copyright law —- if I am not mistaken, the copyright law of most countries, including the US, totally ignores the issue whether infringement of a work actually causes harm, at least with respect to defining infringement itself. He also ignores the fact that even if the law codified a special orphan status, it would be up to the courts to actually decide individual cases under contention.

Perhaps he meant “their lack of (specially treated) orphan status”?

Hmm, I’m glad I waited to post this. Now that I think about it, the fair use exception to infringement does involve the issue of whether the infringement caused harm. Givler’s comment still seems wrong, however, because as the law is currently formulated, only the courts (and not Congress, which long ago passed the law in its current form including fair use) can determine if a particular use of a work constitutes fair use.

I, of course, laud the libraries’ courageous decision to (possibly) test the judicial waters on this issue.

FYI: A Digital Public Library of America: Perspectives and Directions - Columbia University - October 11, 2011.

Page 3 of 3

4, About the Speakers

Our interest in a national digital library was initially piqued when Google self-selected itself as the agency for the conversion into electronic format of the unique book holdings of U.S. (and some other) libraries. Google converted millions of library books into e-books and presumed that the Google BookSearch Settlement resolved the issues and contention—but the Settlement was rejected by Judge Denny Chin and has left unresolved a host of issues that were supposed to have been “e;settled”e;, many of which will be taken up at this conference.

FYI: Adventures in Google’s Audacity — The Open Book Alliance

(The first two links are to the Lab)

From the Digital Public Library of America web site (list archives):

THE DIGITAL REGISTRY

Berkman Founder Charlie Nesson leads an effort to establish a Registry of digital intellectual property for personal, educational, or commercial use. The vision for the Registry is that it will encompass all copyrighted works, all orphan works, and all works in the public domain.

Further details can be found here:

http://blogs.law.harvard.edu/nesson/digital-registry/

Unlike Google et al., the DPLA seems to be getting it right with the horse before the cart.

First: what if copies are not published for distribution to the public, but only to a family circle, or employees of a business, or members of a society or other organisation? — Gillian Spraggs

I am working on a book that I intend to distribute as a PDF file on DVD.(There are just to many documents [i.e. census sheets, crew lists, etc] to be feasible in print format.) I have never claimed to be a “writer” or even “researcher” but I do value my work such as it is. This is the notice that will be on the DVD cover:

This is a personal document intended for the personal use of decedents of persons named herein. This work is not to be sold, donated, or loaned, but it or a copy of it may be freely given to an individual who is (1) a descendent of a person(s) named herein and (2) understands these conditions. In order to make a copy of this work the resulting copy can be used for personal use only and by accepting the copy you agree not sell, loan, donate, lend, or publicly display or otherwise make it available to any library, archives, university, or any other institution or corporation. If you are no longer in need of it or know of no one who qualifies to have it and wish to part with it please destroy it.

Douglas: these libraries are not corporations. — James Grimmelmann

corporation n. 1 group of people authorized to act as an individual, esp. in business —-The Oxford Dictionary of Current English

To me Google & Company is a corporation.

John E. Miller: to almost pathologically over-reach their legitimate concerns and thus end up with nothing.

Took me quite a while to figure out that he wasn’t talking about commercial content publishers, there. Seems to me that some newb German politicians would also have been confused.

I’m not at all convinced that the results of the Berlin regional election are a direct result of the kind of backlash Mr. Miller is discussing. However, no matter what the reason for the results, the topic of lack of balance (or not) in current copyright law is certainly going to get a lot more public exposure in Germany in the next few years.