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Google Books Controversy Heating Up:

I suspect that we're going to be hearing a lot more about the Google Books settlement over the next several months. There will be several hearings about the fairness of the settlement terms in the Fall; the Supreme Court will be hearing the case of Reed Elsevier v. Muchnick, which raises many of the thorny jurisdictional issues that are embedded in the G.B. settlement; and a number of challenges to the settlement are already being prepared and will likely be filed over the next few months (see below).

It's a very complex set of issues, and I don't have a simple or straightforward position on it myself. To begin with, it is, technically, very complicated; to my eye, the best summaries/discussions of the details come from Fred von Lohmann over at the Electronic Frontier Foundation, and James Grimmelmann at NY Law School; well worth a visit if you're interested in learning more about what's going on.

Personally, I don't have a huge amount of sympathy for those who complain about the "unfairness" to copyright holders in Google's plans [see Robert Kunstadt's rather intemperate remarks in the National Law Journal here].

"Google took from the authors first—and belatedly now seeks to legitimize its misconduct by this settlement. Instead, Google should be punished hard, to deter such schemes. Otherwise, Google will succeed where Napster failed. Respect for IP law—as well as the rule of law in general—will decline. If an enterprising homeless person pitches a tent in Google's corporate parking lot for a 'Thomas Jefferson Used Book & CD Flea Market,' will Google let it stay there (since it only occupies part of the lot)? How about for a profit percentage as sweetener to induce "settlement"?

Google's conduct fits the definition of a public nuisance, and may be enjoined as such. It imposes a small harm on a large number of authors. The harm, copying only a portion of each work, is calculated so as not to make it worthwhile for an author to incur the expense of suing for injunctive relief. Google, despite its cute slogan "Don't be evil," is like a large paper mill releasing noxious gas over a wide area, sufficiently diluted that you smell it but faintly. Like those banks that are now "too big to fail," is Google really "too big to infringe"?

That is pernicious nonsense. The Google Books project has the potential to become one of the great information-gathering activities in human history -- every book (just about), at everyone's fingertips, searchable and instantly accessible from any corner of the globe. And we want to deter that?? Because that will decrease "respect for IP laws"? Talk about putting the cart before the horse!! Because it will inflict some sort of terrible "harm" on copyright holders? I'm not terribly sympathetic. Copyright, as Jefferson stressed so long ago, is a "social right" -- given by society because we feel it serves useful ends (incentivizing authors to produce new creative works). When it ceases to serve those ends, it should be eliminated. The Google Books project is another example of how copyright interests, these days, do little more than obstruct useful innovations. There are 7 million (or more) out of print books that Google would like to place on-line where they can actually be accessed and read. I'm sorry if that infringes someone's copyright, but really -- in what way is society better off, exactly, from recognizing the copyright holder's rights in this circumstance?

But that's not to say there aren't worrisome things about the project. Grimmelmann points to some of them, particularly related to antitrust concerns, in his paper. And separately, I've joined a group of authors, organized by the EFF and Stanford's Center for Internet and Society, that is preparing to challenge the settlement on privacy grounds. As it stands, Google will be able to obtain a staggering amount of information about what you and I (and everyone else in the world) is reading, and I want to be sure that that information is destroyed before it can be misused. More on that side of the issue in a later posting.

einhverfr (mail) (www):
Great summary. Thanks.

I am generally in favor of the Google Books settlement, and I hadn't really thought about the privacy concerns. I do find those somewhat troubling as I think about them and maybe it is time for me to make another donation to the EFF....
5.7.2009 5:18pm
Roger Schlafly (www):
Yes, the Google Books project has the potential to become one of the great information-gathering activities, but so was Napster. Napster put music at everyone's fingertips.

The justification for the lawsuit was that authors shoujld have to opt-in, not opt-out. The settlement pays $30M to lawyers, and requires authors to opt-out if they want out. The settlement is a sham, and not consistent with the original complaint.
5.7.2009 5:54pm
wooga:
There seems to be a "willful ignorance" - on the part of corporate copyright holders - about the harm excessive copyright does. Mention the social benefits of works entering the public domain, of movie makers able to use old books freely, of musicians to use/play old music... and you'll get a blank stare - or any accusation that your are in favor of theft (they also ignore the distinction between theft and misappropriation - perhaps the source of their love of infinite copyright).

Copyright should expire for non-use, just like trademark does.
5.7.2009 6:02pm
Alex Blackwell (mail):
Farhad Manjoo had an article on Slate yesterday.
5.7.2009 6:07pm
UnknownNamedAgent:
Re. this:
"I've joined a group of authors, organized by the EFF and Stanford's Center for Internet and Society, that is preparing to challenge the settlement on privacy grounds ..."

Has anything been put out yet? Would be curious to read about the privacy concerns in the settlement.
5.7.2009 6:07pm
Javert:

That is pernicious nonsense. The Google Books project has the potential to become one of the great information-gathering activities in human history -- every book (just about), at everyone's fingertips, searchable and instantly accessible from any corner of the globe. And we want to deter that??
So it's wrong for one person using his printer to copy my copyrighted book, without my prior consent, and give that book to a friend (or to do so 10 times) -- but somehow it's okay if Google does the same because it serves the "greater good" of the collective?

What needs to be deterred is the "pernicious" notion that you have the right to violate an author's rights and steal his work because doing so "serves useful ends."

There are 7 million (or more) out of print books that Google would like to place on-line where they can actually be accessed and read. I'm sorry if that infringes someone's copyright, but really -- in what way is society better off, exactly, from recognizing the copyright holder's rights in this circumstance?
This is a smokescreen. The project is not restricted to just out-of-print books that are still under copyright. Second, what gives you the right to dispense with an author's copyright, i.e., with his work and life, even if his book is out of print?
5.7.2009 6:14pm
einhverfr (mail) (www):

So it's wrong for one person using his printer to copy my copyrighted book, without my prior consent, and give that book to a friend (or to do so 10 times) -- but somehow it's okay if Google does the same because it serves the "greater good" of the collective?


Wrong in what sense? Morally? Legally? Factually?

Honestly if one person photocopies my book for personal archival reasons and then loans out the original to 10 friends (who each make one copy using a photocopier), that might even qualify as fair use!

Furthermore, I can go to a public library and (gasp) read all kinds of books without paying for another copy of them! I can even walk into a bookstore and read a book without buying it! Interestingly, Google Books does NOT offer the level of access one gets at a library or a bookstore.

I also think that the fair use argument becomes quite a bit stronger when a work is out of print because there is a lot less one can do to an out-of-print work that really interferes with the ability to exploit the copyright of that specific work.

The initial quote WAS pernicious nonsense because it is based on the idea that copyright should be something like intellectual real estate (which unfortunately it has become).

(I favor returning to a 28-year copyright term.)
5.7.2009 6:36pm
JHU BME:
Is this post meant to suggest that there ought not be an exclusive right to profit from one's own creative works? And that such works are protected from copying not because of any moral right of the creator but only for the good of society (whatever that means)? Should the supposed greatness of a private activity be an excuse for curtailing the rights of others (insofar as such rights are not already limited by equitable principles)? Is that Google Book Search is potentially useful enough to vindicate their infringement? Why is it "pernicious nonsense" to suggest that it is not enough?
5.7.2009 6:48pm
Soronel Haetir (mail):
einhverfr,

So how would you harmonize copyright and trademark law in an age of limited copyright?

I'm thinking specifically of illustrated works such as Wiinie the Pooh where the original illustration style was then incorporated into the animated works and the characters trademarked. If Pooh were in the public domain I could see people creating more works in that environment, it in fact seems like the sort of quintessential use of such materials.

However I have a hard time believing that the market would accept radically different illustration styles in new works, which would diminish the value of otherwise very strong marks.

Loss of copyright status is about much more than just being able to take some existing work and slapping a new lable on it.
5.7.2009 6:56pm
Soronel Haetir (mail):
JHU BME:



The reason is, that in the US at least, copyright and patents are supposed to promote the sciences and the useful arts. They are not intended to be a total right to the fruits of labor, but much more to the fruits of creativity.

And that is why things like the contents of phone books are not protected, although the pagination is covered. Which does seem somewhat silly since the pagination is likely no more than accident.
5.7.2009 7:01pm
Guest12345:
I'm curious. Does Google make available an electronic copy of the entire library? I suspect not. The skill and expense in digitizing a book has got to be several hundred times less than the original skill and cost in creating a book. If the public good of having all these books in one place overrides the public good in respecting the rights of the rights holder, then why wouldn't the same public good argument easily trump any claim Google might have of exclusivity?
5.7.2009 7:18pm
einhverfr (mail) (www):
Soronel:

Trademark protections are fundamentally different than copyright protections and are in many ways fundamentally more limited. For example, Harley Davidson can't sue me over this post, nor can SQL-Ledger's creator, Dieter Simader sue me for writing after-market documentation for his software.

I think a simple rule (which I understand to be the case anyway) that you can't use trademark to control areas outside the specific domain of trademark law to be sufficient.

For example... I take the original illustrations of Winnie the Pooh once they lapse into the public domain (which I don't think is the case yet) and I can reproduce them as much as I want without interfering with Disney's trademarks. Nor would Disney's trademarks be infringed by someone writing sequels once the copyrights lapse. At some point the trademarks become fairly limited to those marks in actual use and a broad view of the trademarks would be hard to defend due to generic elements.

At least that is how I think it should work.
5.7.2009 7:57pm
einhverfr (mail) (www):
Guest12345:

If the public good of having all these books in one place overrides the public good in respecting the rights of the rights holder, then why wouldn't the same public good argument easily trump any claim Google might have of exclusivity?


Google doesn't have official exclusivity. They just don't have any competition. There is a difference.
5.7.2009 7:59pm
Soronel Haetir (mail):
The problem I see in the Winnie the Pooh example is that Disney would fight hard to prevent the very first 'new' Pooh story to be published. Republishing existing works wouldn't diminish the mark but new original works would and I can see them successfully arguing that to the point of excluding any new works.

If they manage that the process of dilution would never get started.
5.7.2009 8:08pm
Guest12345:

Google doesn't have official exclusivity. They just don't have any competition. There is a difference.


You miss my point. It's that, presumably, Google won't be forced to allow copies to be made. Which is exactly the opposite of that is happening to the owner's of all the books that people are calling "orphaned."
5.7.2009 8:51pm
Ak:
"Is this post meant to suggest that there ought not be an exclusive right to profit from one's own creative works? And that such works are protected from copying not because of any moral right of the creator but only for the good of society (whatever that means)? "

You may want to take another look at that Constitution thingy.

Also, this "moral right" has mysteriously expanded hugely in the past fifty years, almost as though there were wealthy interests bankrolling legislation for it every step of the way. The ridiculous regime we have now where copyright is basically infinite and unending would boggle and horrify the people who originally designed the system. Until Disney made appropriate campaign contributions to them, I suppose.
5.7.2009 8:54pm
Soronel Haetir (mail):
AK,

The only reason I find what we have now horrid is that I feel current creators have not properly compensated society for use of prior works.

It used to be that works entered the public domain to fulfill that compensation role. That is no longer the case but nothing has come along to replace it either. If an appropriate compensation regime were instituted I would have no problem with infine copyright although the boundaries should also be tweaked some around the doctrine of first sale.
5.7.2009 9:13pm
Rosooki:
Guest12345

Actually Google does make copies of the whole library available to anyone who wants one. They do even better than that, they hold those copies until you need them, bearing the costs themselves. Someone is using a book you want? No problem, make another copy by asking for the book in your browser. As many copies of the whole library as necessary are available - on demand - free of monetary charge.
5.7.2009 9:37pm
Guest12345:

Actually Google does make copies of the whole library available to anyone who wants one. They do even better than that, they hold those copies until you need them, bearing the costs themselves. Someone is using a book you want? No problem, make another copy by asking for the book in your browser. As many copies of the whole library as necessary are available - on demand - free of monetary charge.


Well, that's all fine and good unless you care about not having Sergey Brinn fondle your privates while you read. I want to have them on my terms, just like Google is insisting on making unauthorized copies of all these books on their terms. Why should Google be special?
5.7.2009 9:50pm
A.:

I want to have them on my terms, just like Google is insisting on making unauthorized copies of all these books on their terms. Why should Google be special?


Google isn't special because they get to do something no one else gets to do, they're special because they're doing something that no one else is doing. If you want to be special, go do what Google is doing.
5.7.2009 10:10pm
Rosooki:

Well, that's all fine and good unless you care about not having Sergey Brinn fondle your privates while you read. I want to have them on my terms, just like Google is insisting on making unauthorized copies of all these books on their terms. Why should Google be special?


No problem. Cache all those books, one by one from your browser, and look at them at your leisure, without anyone looking over your shoulder. Figuring out how and actually doing the work is your job. Asking someone else to make a copy for you would be like Google asking to the author's to do the digitizations and provide them to Google.
5.7.2009 10:50pm
empty:

Google Books project has the potential to become one of the great information-gathering activities

So is the current internet, yet finding useful and relevant information is a pain. For example: finding info on Pelopponesian War.

Such an argument for Google Books makes the assumption that {public domain works + licensed works + unlicensed works} is so significantly greater than {public domain works + licensed works} that Google should be allowed to continue. I find this assertion hard to believe. Google Books is likely to be nearly as good without the licensed works, if it is good at all.

If anything, this whole project calls for a legislative solution so that all sides can have their input and the crushing demands of money for class action lawyers does not result in a sham settlement.
5.7.2009 11:49pm
Guest12345:

Google isn't special because they get to do something no one else gets to do, they're special because they're doing something that no one else is doing. If you want to be special, go do what Google is doing.


So you're saying I can ignore the law and do anything I want? Awesome. You're inferring that I somehow want to digitize books. That's not what I want at all. What I want is for the law to not apply to me, just like Google apparently believes about themselves.


Asking someone else to make a copy for you would be like Google asking to the author's to do the digitizations and provide them to Google.


I'm not asking them to make a copy for me, I'm asking that I be given enough access to their content that I may use whatever method I personally choose to make a copy.

It's not about digitizing. It's about Google grubbing for money and trampling other people's rights while doing it. If that's the standard that applies to Larry Page, why not Somali pirates? Why not Bernard Madoff? Why not all the peeping toms out there? What about the US government and their wiretaps?
5.8.2009 1:15am
Gabriel McCall (mail):

Is this post meant to suggest that there ought not be an exclusive right to profit from one's own creative works? And that such works are protected from copying not because of any moral right of the creator but only for the good of society (whatever that means)? Should the supposed greatness of a private activity be an excuse for curtailing the rights of others (insofar as such rights are not already limited by equitable principles)? Is that Google Book Search is potentially useful enough to vindicate their infringement? Why is it "pernicious nonsense" to suggest that it is not enough?



In a word, yes.

Both historically and legally, patent and trademark law is not a protection of any natural right. Intellectual property is not "property" in the ethical sense; it is entirely a creature of statute, invented for specific practical reasons and only of value or validitity to the extent that it promotes those practical reasons. If society finds that more good could be done by aboloshing IP law than by maintaining it, it can and should do so, and no fundamental violation of natural rights would take place thereby.

Many people today labor under the impression that IP rights are indeed a natural ethical principle rather than a legally-created means to an end. This simply doesn't agree with the historical dialogue on the subject nor with the current state of the law.

If we consider the example of a hypothetical pre-legal society, we can easily imagine that Og would be naturally aggrieved, and justifiably so in our eyes and in the eyes of his tribemates, if Ug stole the fine club he had made. But we have a much harder time imagining that Og would be similarly aggrieved if he invented fire and then saw Ug building a fire as well.
5.8.2009 11:56am
Soronel Haetir (mail):
Gabriel McCall,

Actually, I can easily see a tribe where building a fire would be considered the special province of the shaman and that anyone else who tried would be committing a terrible tresspass and possibly risking the wrath of the gods against the entire tribe for allowing one not versed in the magic to make the attempt.

I can also see IP morphing from some degree from a statutory construction for one purpose to a more general ethical right. Just because history and current law does not support that position does not negate the possiblity of such a development.
5.8.2009 12:28pm
JB:
If Google is restricting its project to out-of-print books, then I see no reasonable objection. Indeed, given that copyright is assigned for the purpose of encouraging creators to benefit society by creating and promulgating more works, I think that "out-of-print" should mean "in public domain." Being the copyright holder should carry with it the responsibility to, within a reasonable period of time, commercially sell or freely distribute the work in question.
5.8.2009 3:16pm
einhverfr (mail) (www):
Soronel:

I can also see IP morphing from some degree from a statutory construction for one purpose to a more general ethical right. Just because history and current law does not support that position does not negate the possiblity of such a development.


Sure, and in some countries it is there.

However.... in this country, it would require a Constitutional Amendment.
5.8.2009 7:29pm
einhverfr (mail) (www):
Roosooki wrote (incorrectly):

Actually Google does make copies of the whole library available to anyone who wants one.


For works under copyright, they actually limit by default the access to 20% of the book within a 30-day period. So no....

Soronel wrote:

The problem I see in the Winnie the Pooh example is that Disney would fight hard to prevent the very first 'new' Pooh story to be published.


Fighting hard and winning are two different things. They might fight hard, but in the end, if one is legally right, losing one fight would be the end of the monopoly.
5.8.2009 8:09pm
einhverfr (mail) (www):
JB:

If Google is restricting its project to out-of-print books, then I see no reasonable objection


The controversy is specifically about the out-of-print terms regarding the settlement. I agree with you that the objections are unreasonable, but I am sure the objectors see them as reasonable.
5.8.2009 8:11pm
Soronel Haetir (mail):

Sure, and in some countries it is there.

However.... in this country, it would require a Constitutional Amendment.



This merely demonstrates that the process is harder than such shifts in language usage. Given that many people linguistically think such a change has already occured having the legal realm catch up does not strike me as impossible.

As I said earlier the only reason I find our current state to be improper is that current creators have not had to properly compensate society for any sort of expanded property right in their work. What such a compensation scheme would look like when the work itself is not the compensation I am not sure.

I've seen at least one person advocate for increasing cost as a work remains under protection but I'm not sure even that is appropriate.
5.8.2009 9:42pm

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