Here are some of the legal documents connected to Google’s new eBookstore:

Terms of Service (for readers):

• eBookstore Terms of Service
• Google Terms of Service

Privacy Policy (for readers):

• eBookstore Privacy Policy
• Google Privacy Policy (English/U.S. version)

Terms and Conditions (for copyright owners):

• Parter Program Standard Terms and Conditions (November 21, 2005)
• Google Editions Addendum
• Google Books Program Policies

Please let me know if there are any I should add.

I would suggest for comparison adding contracts for the Kindle and other non-Google ebook platforms.

Best,

Fran

James:

In the eBookstore terms of service, I find the following:

Restrictions. You may not sell, rent, lease, distribute, broadcast, transfer, or assign your rights to the Digital Content or any portion of it to any third party except as expressly permitted by Google.

That would seem to be pretty clear, except that it is immediately followed by this statement:

Provided, however, that nothing in the Terms of Service shall prohibit any uses of Digital Content that would otherwise be permitted under the United States Copyright Act.

Section 109 of the Copyright Act allows the purchaser of a work to “sell, rent,lease, [or] distribute” purchased copies. And Google says at the beginning that users purchase material from them.

Do you think this second second in effect invalidates most of the restrictions specified in the first sentence?

Peter, I tend not to think so, because the terms of service say that users purchase “content” or “Digital Content,” not “copies.”

James Grimmelmann:

I tend not to think so, because the terms of service say that users purchase “content” or “Digital Content,” not “copies.”

This is all very interesting to the mathematical/legal side of me, but the reality of the situation is that, in the long term, what is important is what the consumers believe about what rights they have (or rather, believe they deserve).

[Please step in and let us know if your intention is to restrict this thread mainly to the legal intricacies and ramifications of the agreements, rather than the sociological implications. All of us here tend to move the discussion in repetitive ways, and I’m sure I’m just as guilty of that, if not more so, than most here.]

Hmmm, so the Digital Content is not a Copy of the book?

Here is how the Copyright Act defines “copy”:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

I thought that courts have determined that digital files are material objects. How can Digital Content not be a Copy?

It seems like you are reading the Terms to say that one can make use of the copyrighted Work to the extent permitted by the Copyright Act (i.e., fair use, etc.), but that one can’t take advantage of Section 109 since that applies to a Copy and not a Work. Is that right?

Their search is horrible, but raised another problem:

A magazine to which I sold first serial rights only in the 1980s, no other rights, nothing that can be construed as e-rights, is selling old issues through Google, including my articles. Or at least someone is—the magazine went out of business. I don’t want my work sold in e-form, and I don’t want it sold without my permission or paying me, and I don’t want it sold in violations of my contract. What do I do?

Fran

By the way, one reason I care about my old magazine articles is that (since I retained the legal right to do so), I included material from some of them in one of my books, more or less verbatim. Meaning, sales of those compete with sales of an in-print book I am still actively selling.

Fran

James are you going all spiritual on us . Is there some sort of disembodied “content” separate to the pattern of symbols on a page/screen ?

It seems to suggest that scanning a book and making it available of the web somehow ( in some legal sense) changes ‘it’ from being a copy of book to something else: “content” or “Digital Content,”

john walker:

separate to the pattern of symbols on a page/screen

I think that Professor Grimmelmann is pointing out that in copyright law there is a distinction between the “content” (which covers any re-expression of a particular creative work no matter the medium) and a “copy” (which is a particular, physical expression of “content”). (Please correct me, ye who know better, if I’ve gotten it wrong.)

This legal idea of “content” might seem quite bizarre to you as an painter, since it would lump together in one concept one of your paintings, a photographic postcard of your painting, a copy of your (oil) painting executed using watercolors, etc. and I could understand that you might find this totally foreign to how you relate to your creative works.

One of the big distinctions between copies and content is that the “first-sale doctrine” (which gives the right of resale to a paying customer) only applies to “copies”. In the US, of course —- I’m not at all clear what the international analogies are to that, if any.

“Restrictions. You may not sell, rent, lease, distribute, broadcast, transfer, or assign your rights to the Digital Content or any portion of it to any third party except as expressly permitted by Google.”

But what does Google expressly permit? Will Google have separate sales contracts, for example with libraries, that give different permissions than under the general terms> And if so how is the publisher to find out about them?

One of the big distinctions between copies and content is that the “first-sale doctrine” (which gives the right of resale to a paying customer) only applies to “copies”. In the US, of course —- I’m not at all clear what the international analogies are to that, if any.

I think the effect is much the same here. Though issues like making backup copies, time shifting and the like do not figure much here. I am not aware of any Australian teenagers being fined 26 thousand dollars for downloading 40 pop songs— However I think there have been people extradited to US jurisdictions for prosecution.

“the big distinctions between copies and content”

They are breaking down,no? The mass printing and mass distributing of “content” used to be a natural monopoly. These days the monopoly needs a lot of added state power to maintain itself.

I understand the difference between the content of the work and a physical copy (even if that copy is digital), but like Peter, I find the use of “content” here confusing.

This is I suppose legal, but with Google encouraging the addition of “user content,” such as annotations, I suspect Google is planning to roll out some social-networking website centered around Google E-Books.

What is the test for the difference between a digital copy of a book and the ‘content’ of the book?

Peter,

It you’re concerned about restrictions to library use, what about:

“and to view, use, and display such Digital Content an unlimited number of times on your Devices or as otherwise authorized by Google as part of the Service for your personal, non-commercial use.”

I’d hardly call institutional library loans “personal.”

That, of course, is assuming Google is not going to write special addendums/contracts for the benefit of parties such as libraries.

Another issue for concern:

I see nothing to stop a large group of people who don’t want to pay for books, getting a Google account under one of their names, paying for the use of one copy of each e-book, and then the rest of the class, e-group list, business, organization, or whatever all just read it “in the cloud”/on Google on their different devices. They don’t necessarily ever have to hack the files to copy the books onto their own hardware. I see no “one user, one book” model in the user terms. The number of reading times is explicitly unlimited and the number of devices the book can be read on is currently unlimited.

james

Is it that users purchase “content” or “Digital Content,” and not the right to make “copies”?

Here is the operative clause:

Google gives you the non-exclusive right to download, subject to the restrictions set forth herein, copies of the applicable Digital Content to your Devices, and to view, use, and display such Digital Content an unlimited number of times on your Devices or as otherwise authorized by Google as part of the Service for your personal, non-commercial use.

Elsewhere, the terms of service refer to “Digital Content you purchase,” but that construction is always used to specify particular content, rather than to state what the user’s legal rights with respect to that content. In other words, it might be fair to say that in this context, “purchase” comes very close to being a term of art defined by the terms of service, rather than a pre-existing term whose meaning the terms of service refer to.

John,

Say you’re a poet. You publish an anthology/book of 30 poems. The anthology/book is the copy. The poems are your content. You can license the right for someone to, say, reprint one poem in a different anthology without selling them a copy of the book or licensing the use of all the poems in it.

You’ve painted a picture. It’s a physical object you can sell as is. Then someone says they want to photograph that painting and include it in a 2012 calendar of “Australian Landscapes.” You can sell them the rights to put your content in their calendar and still sell the painting separately.

James,

I really appreciate your analysis but is there some reason Google can’t just call it a “file” instead of “Digital Content”? Or maybe “book”? I know, you’re not responsible for writing the contract … .

My best guesses so far: “File” doesn’t work because it typically refers to a specific logical structure on a specific storage device — when it’s copied from one computer to another, there are now two “files.” “Book” is also problematic. For one thing, not everything sold this way will necessarily be a book: Google also has magazines and could plausible make other forms of content available this way. For another, “book” is ambiguous between the work (i.e. the text) and the copy (i.e. the physical object). “Digital Content” is ungainly, but doesn’t have these issues.

“purchase” comes very close to being a term of art defined by the terms of service, rather than a pre-existing term whose meaning the terms of service refer to.

Color (like musical notes) is highly relational; Depending on what colors are next to a color - the same color can be both warm and cool in the same picture, ‘art’ is the lie that tells the truth.
But… Do you think that many fully realise that this contract could involve usages of commonly used terms in ways that may not be common usages?

Feel that this could be relevant to the discussion Protecting property rights in a digital world

PS This is way off topic but sightings of recursive paradoxes are, I hope, permissable .. New Scientists Feedback reports a railway stations information display that stated ” the information on this display may be incorrect”

James,

Thanks. Were I writing the contract, I’d say something like, “book, periodical, or other content.” But, I’m not writing it.

Even though this contract is much shorter than the proposed Settlement, it seems to be very confusing to most writers and self-publishers I am encountering. The relationship to the lawsuit and the Settlement is also confusing them. They do not realize it is entirely outside the Settlement and therefore, what their legal rights are. They do not even know whether the judge has ruled on the Settlement.

Frances guessed right: I am trying to figure out if a library could purchase a book from Google and then “loan” it to a patron. I have argued that libraries probably cannot do this with ebook reading devices because of the terms of service that accompany them (even though many libraries are actually doing this): see here.

I can see that Google doesn’t want to allow lending with its Terms of Service (ToS). But Google also seems to want to allow users to be able to make fair uses of ebooks (the reason that I assume they included the clause that says that legal uses found in Title 17 trump the ToS). I have to wonder whether they may have opened the door a bit wider than they anticipated. Here is my logic:

• You purchase Digital Content (i.e., it is not just licensed to you).
• Digital Content is a Copy (in copyright terms).
• Therefore, you have purchased a Copy of the work.
• Regardless of the language in the ToS, it does not prohibit uses authorized by the Copyright Act.
• The Copyright Act allows you to lend (or sell) purchased copies, and that such lending is not limited to “personal, non-commercial use.”
• Therefore, the restrictions against lending content in the ToS are moot.

Of course, if I am right, all Google would need to do to stop it would be to clear up the language that I find confusing, so I don’t know how far I would push this. But the clause that “nothing in the Terms of Service [and not just the Restrictions section] shall prohibit any uses of Digital Content that would otherwise be permitted under the United States Copyright Act” would seem to open the door pretty broadly.

I interviewed the resident computer geek (my husband), who described several ways Google could (but has not, as far as I know) prevented an enormous number of users for getting together, paying for one book, and all reading it “in the cloud.”

1. Make users log in and either log out, or time them out if they are not using the book but do not bother to log out. This would only prevent simultaneous use of the same log-in/password combination, unless the number of hours of viewing per day or week were limited to something credible.

2. Tie the book account to the MAC address (unique hardware identifier) of each device and have Google check the address each time the user logs in. This has the problem of inhibiting use if the user’s hardware dies and they have to replace it. (Though I don’t see why use of an e-book should be perpetual. Use of a print book is by no means perpetual or practical over a large number of readers, because the physical book wears out.)

3. Tie the book account to information the user will not want to reveal widely, such as their Social Security number, driver’s license number, a credit card number, or preferably, several of the above. Google probably has ways to verify whether all this information is valid for that user.

4. Use “tokens,” which are sometimes used for business licenses to software. The company licensing the software issues token numbers to the business, which the business places on a token server. Whenever an employee starts up the software, it looks for a token number on the server. If the token numbers are all taken already, the software will not start. This means that employees can be replaced but the new employee can still use the software.

Peter,

I suspect Google may not care if many readers do not pay for the book because Google plans to make most of the money off advertising and the more people who see it, the better. It is the publishers who would be opening the door too widely. On the other hand, I suspect the large publishers crafted more favorable and precise contracts for themselves than this non-negotiable contract that Google is offering to micropresses, self-publishers, etc.

Peter,

This article may or may not enlighten you:

http://www.ivanhoffman.com/saleorlicense.html