The Laboratorium
November 2010

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GBS: Google Editions Coming This Month

Jeffrey A. Trachtenberg, Jessica E. Vascellaro, and Amir Efrati, Google Set to Launch E-Book Venture, Wall Street Journal, Dec. 1, 2010:

The long-delayed venture—Google executives had said they hoped to launch this summer—recently has cleared several technical and legal hurdles, people close to the company say. It is set to debut in the U.S. by the end of the year and internationally in the first quarter of next year, said Scott Dougall, a Google product management director. …

Google says it is on a mission to reach all Internet users, not just those with tablets, through a program in which websites refer their users to Google Editions. For example, a surfing-related blog could recommend a surfing book, point readers to Google Editions to purchase it, and share revenue with Google. Through another program, booksellers could sell Google Editions e-books from their websites and share revenue with Google.

The Pressure of Raw Possibility

She remembered suddenly the Vienna agent she’d met in Galveston, the polite, handsome Russian who had talked about the “evil pressure in a bullet.”

Now for the first time, she was grasping what the man had meant. The pressure of raw possibility. If something was possible—didn’t that mean that somewhere, somehow, someone had to do it?

—Bruce Sterling, Islands in the Net

The Power of the Selectee

If you wish to fly in the United States, you will be scanned by a machine that produces a picture of your naked body. You may ask not to be scanned, but if you do, you will be groped by a TSA screener. This choice has been criticized as no choice at all, since both alternatives are degrading invasions of your privacy. But I disagree. There is a choice, and in that choice there is meaning.

Start again. If you wish to fly in the United States, you will be scanned. This is a degrading invasion of your privacy. But you may also choose, you may insist, to be groped instead. This too is a degrading invasion of your privacy, but it is not only that. By opting out of being scanned, you compel a TSA screener to grope you, which is also unpleasant and degrading for them.

These are the rules: be scanned or be groped. On this, the TSA is insistent. That insistence is a threat, but every threat is also a bluff. When you opt out, you call that bluff. You hold the system, the oppressive and degrading system, to its own rules. You expose the fictions, the oppressive and degrading fictions, on which that system depends, and around which it has crafted its rules. You cease to say, “I am afraid and therefore unquestioningly obedient.”

We are powerless, we who fly in the United States. We are powerless except for our human capacity of living within the truth. To opt out is to embrace the truth that the screening procedure is intrusive and degrading, and to bring another human being face to face with that truth. The choice is everything. If being groped were required for everyone, proceeding through the screening line would be just another moment of submission within a system of submission: another lie. But the choice is a truth and a form of power, the power of the powerless.

Remember your Havel, and opt out.

GBS: Hachette Livre Buries the Hatchet

The New York Times is reporting that Google and French publisher Hachette Livre have a scanning deal. The Hachette publishing family, it may be recalled, strongly objected to the proposed settlement and to the amended settlement. But now, there will be peace:

Under the agreement, which follows a landmark settlement with American publishers last year, Google will be allowed to sell the books it scans as ebooks or in other electronic formats.

But Hachette, the largest publisher in France and the No.2 trade publisher worldwide, will determine which of the books covered by the deal — those that remain under copyright but are no longer commercially available — Google has the right to scan.

Google and Hachette will share revenue from sales, as under the U.S. settlement, but declined to say how they would divide it. The deal is non-exclusive, so Hachette will be able to make the same books available for other electronic selling platforms.

So far, these terms sound very much like the ones available under the settlement itself. Perhaps the agreement differs in terms of its national scope, the settlement being confined only to the U.S. market. Hachette may also have easier-to-exercise rights to prevent specific books from being scanned, although the details are a bit thin:

The agreement differs from the proposed settlement with U.S. publishers, which has yet to receive final court approval, in that it gives Hachette greater control over which books are scanned. The companies said Google would notify Hachette on a quarterly basis of what books it planned to digitize. …

Under the U.S. settlement, publishers have to state up front whether they want to opt in or out of the deal to make their books available.

The article also says that the Bibliothèque Nationale de France “will at long last have access to works scanned by Google” and that “Hachette would turn over to the Bibliothèque Nationale, for free, books that were scanned by Google.” Whether this means the physical books or the electronic scans will be turned over, is not completely clear.

UPDATE: Here is more, in French.

GBS: Scholarship Watch: New Student Note in the Hofstra Law Review

I’ve previously remarked on the unusually high quality of the student scholarly work being done on the Google Books settlement. Many student law-review notes follow a distressingly bland format: problem statement, discussion of relevant law, synopsis of case, critique of court’s legal reasoning, proposal for change, pro forma conclusion. Like eight-legged essays, they take a complex legal issue and bludgeon it into submission.

For whatever reason, most student work on the settlement, however, has avoided this trap. Student authors, particularly on antitrust, have made novel and interesting arguments that illuminate the issues raised by the settlement. They may not always be right in every particular, but really, who in the academy is?

The latest addition to this tradition is Alessandra Glorioso’s student note in the Hofstra Law Review, Google Books: An Orphan Works Solution?. It’s unusually wide-ranging for a note, offering opinions on fair use, essential facilities doctrine, the most-favored-nation clause, and solutions to the orphan works problem. I doubt that anyone will agree with everything in it, but everyone will learn something from it.

In the midst of an otherwise hit-or-miss review of The Social Network, Zadie Smith writes:

What Lanier, a software expert, reveals to me, a software idiot, is what must be obvious (to software experts): software is not neutral. Different software embeds different philosophies, and these philosophies, as they become ubiquitous, become invisible.

Cooks Source’s Source

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

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

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

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

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

Virtual Justice Goes CC

Greg Lastowka’s new book about virtual world law, Virtual Justice, is now available for free download under a Creative Commons license. Get it here from his website. Kudos to Greg and his publisher, Yale University Press.