EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal

Posted Sep 9, 2009 23:08 UTC (Wed) by njs (subscriber, #40338)
In reply to: EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal by xoddam
Parent article: EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal

> But users who do not wish Google to track them are free to refrain from using Google's services altogether. This is not some exclusive licence Google has somehow tricked the court into granting, shutting down other licensed uses.

This is close to false.

In a rather breathtaking hack of class action law, if the settlement is approved, Google gets a private exception to international copyright law wherein they become the exclusive source for orphaned works (i.e., most works).

So for the books that are available through other mechanisms (unless they were published in large print runs in the last 10-20 years, I guess that's rare book auctions and university libraries?), yes, you have alternatives to Google. But it will be illegal for anyone but Google to create a complete, online library, and therefore legally impossible for anyone who wants to browse a complete, online library to do so without Google's tracking.

That's a summary, and it probably seems hyperbolic; see Pam Samuelson for more credibility and details: http://radar.oreilly.com/2009/04/legally-speaking-the-dea...

EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal

Posted Sep 9, 2009 23:36 UTC (Wed) by dlang (guest, #313) [Link] (1 responses)

right now the situation for orphaned works is that they are just plain not available from any source.

in my opinion having the ability to get them through google is better.

now the one thing that I do think could be improved would be to not make it exclusive to google, but at the same time, google is the company putting up the money to 'pay' for this. the only fair thing would be to allow any other company to join the club by paying 1/(N+1) the cost of the settlement (where N is the number of companies that have already paid, with google being the first one)

that would let things move forward, but also allow other companies to get in on this while paying google back for their investment in this.

Out of print NOT orphaned

Posted Sep 10, 2009 0:03 UTC (Thu) by tialaramex (subscriber, #21167) [Link]

Orphaned works may or may not be available. What's not available (without this settlement or one like it), and what Google is most interested in, is Out of print works, an overlapping but technically unrelated set.

The reason they got a settlement was that this is in almost everyone's interests. For the past few decades we've been saying that "eventually" print-on-demand or some similar technology will make the long tail of books accessible to ordinary people. And while we've been saying this, shelf after shelf of books goes out of print and disappears from mainstream culture. Novels, textbooks, reference works, poetry, much of it mediocre, some rather good, all vanished from sight.

Google says - all those books will be a Google search away, and they're willing to give publishers (where contractually appropriate) and authors a slice of any advertising revenue, and if the reader does more than flip through a page or two as they might in a bookshop, a price of the owner's choosing to read the whole book (and Google don't mind if you set this to $0.00 out of the kindness of your heart, or to five times the sticker price of the original book if you think books ought to weigh something).

In the cases where the book is orphaned, AIUI Google will give the money to a non-profit with the mission of finding the missing owners. My experience with other projects where _money_ was available to missing authors agrees with Google's claim that huge numbers will come forward to get their slice of the pie. Certainly schemes that reward authors for books borrowed from libraries (many of which are also out of print) don't find much of the money sits unclaimed.

EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal

Posted Sep 9, 2009 23:47 UTC (Wed) by tialaramex (subscriber, #21167) [Link] (3 responses)

Are you sure that _most_ works are orphan works?

To be clear: Any work whose rightsholders can be identified is not an orphan. If the book is published by a company that still exists, or has a successor in interest, it is probably not an orphan. If the author, or where appropriate their estate, can be found in a telephone directory, or with a bit of amateur snooping around, then it's not an orphan. Google will actively be paying for this sort of detective work to get done, as part of the settlement.

If you redefine orphan to mean "not available from my nearest bookshop" then suddenly this seems terrible. But orphan is an existing term of art, not redefined by this settlement, and it means works which don't have any identifiable rightsholder. A work ceases to be an orphan the moment anyone or anything comes forward and says "I'm the author actually" or "I'm the publisher actually".

Traditionally when you needed to use stuff from an orphan work, you'd pay someone to search for the owner, and then when they'd put in a reasonable amount of work without finding anything, you'd make a note that you didn't have a license to use the work, but you were going to anyway, and you'd make sure you could be contacted if somehow your work finally attracted the owner's attention and they wanted to demand that you desist. By doing this you hoped to be shielded from liability, although in practice it was impossible to be quite certain.

Now, I can understand the FSF's point about the consequences for their rather unusual licensing conditions, and I hope they obtain some type of concession, perhaps something about works which contain an integral license for reproduction, but I've seen way too many people who think this settlement is something it isn't. I don't know whether those people will be relieved or unhappy when they find out that they're wrong, but wrong they are.

EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal

Posted Sep 10, 2009 6:26 UTC (Thu) by njs (subscriber, #40338) [Link] (2 responses)

Yes, I'm aware of what "orphan" means -- sorry if that was unclear. The reason I talked about them (rather than books which are merely out-of-print) is that if the rights-holder is available, then anyone can (in principle) get a license; one of the particularly remarkable things about the settlement is that Google becomes the only one who can get a license to orphaned works.

As for "most", I'm going off Pam Samuelson's comment in the article I linked: "70 percent of the books are...in copyright, but out of print. Most of them are, for all practical purposes, 'orphan works'...". Most of 70% is probably >50%. But I'd be happy to see better statistics.

I'm confused by your comments on publishers -- in many/most cases, publishers have a license/contract to publish the work, and are not the rights-holder themselves. Depending on the contract they might have enough rights to reprint the book themselves, but it seems to me that for most of the works we're talking about, publishers are irrelevant; certainly no publishers were acquiring electronic rights before the last decade or so.

And in many cases the problem isn't finding the authors; it's working out who inherited the rights after the author died, possibly without mentioning those rights in their will, which is probably not public anyway...

EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal

Posted Sep 11, 2009 15:39 UTC (Fri) by giraffedata (guest, #1954) [Link] (1 responses)

in many/most cases, publishers have a license/contract to publish the work, and are not the rights-holder themselves.

I believe only the strongest authors retain copyright. Most are held by large publishers. I did a quick survey of a bookshelf of technical books, and about 3/4 of the copyrights are held by the publisher, and the rest were held by some other organization - none are held by the individual authors. I believe in fiction, it's about 99% publisher, 1% author.

It makes sense. An author writes; he doesn't manage copyright. It's the same reason inventors sell their patents.

EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal

Posted Sep 11, 2009 19:33 UTC (Fri) by njs (subscriber, #40338) [Link]

I was going to object to your claim about fiction, since at *most* 1% of the books that *I* read has publisher-held copyright, but, on further thought... maybe 99% of fiction is actually Harlequin romances and Star Wars tie-ins, which are works-for-hire.

The problem is that norms vary hugely between different parts of the market (and vary historically, too -- what really matters for this discussion is how things worked decades ago). I spoke too hastily, and don't know what the overall proportions really are across the whole market.

the exclusive source for orphaned works

Posted Sep 9, 2009 23:52 UTC (Wed) by xoddam (guest, #2322) [Link] (10 responses)

> the exclusive source for orphaned works

> ...

> it will be illegal for anyone but Google to create a
> complete, online library

If the settlement really does imply that, it's a travesty. The arguments made in the article and its links did not make it clear at all that the ramification of the settlement was an *exclusive* licence grant to Google.

I hope it's a misreading. The proposed settlement urgently requires clarification, but if this reading is correct, I'm wholeheartedly with the FSF and the EFF. I wouldn't want to see such a settlement in a million years.

the exclusive source for orphaned works

Posted Sep 10, 2009 0:05 UTC (Thu) by tialaramex (subscriber, #21167) [Link] (8 responses)

There's nothing exclusive about this deal. It probably wouldn't be possible to write an exclusive version of the deal without legislation, which is not forthcoming.

The argument from (some of) those against is that once Google is authorised to do this, there's no point in anyone else even trying. This is a rather peculiar argument, and I can't justify it, I will leave that to someone who believes it.

the exclusive source for orphaned works

Posted Sep 10, 2009 1:16 UTC (Thu) by gmaxwell (guest, #30048) [Link]

Through this agreement Google will, with one fairly inexpensive act, obtain the right to distribute almost every book, which is something that you couldn't achieve even with millions of individual costly negotiations because not all of the relevant rights holders can be found. Using this unprecedented set of permissions Google will create a library that no one else could match through anything short of replicating Google's stunt or legislative action. The internet archive tried to sign on as a plaintiff in this action but were turned away by google's strawman, so it looks like replication is out of the question and the availability of google's library may kill most of the argument for improvements in the law with respect to orphan works.

This is what is meant by exclusive in this context. See my post down thread for more elaboration.

the exclusive source for orphaned works

Posted Sep 10, 2009 6:44 UTC (Thu) by njs (subscriber, #40338) [Link] (6 responses)

> The argument from (some of) those against is that once Google is authorised to do this, there's no point in anyone else even trying.

To me this doesn't seem like a fair summary of Samuelson's arguments, at least, and I believe that article I linked is one of the more influential essays on the doubters side. I'd be curious to see your response to the argument itself (in particular, see section "Google's New Monopoly", and perhaps the section "Representativeness?", inasmuch as it discusses just who archive.org or whoever would have to be dealing with as they tried to duplicate this feat).

As I understand it, the argument is essentially that Google quite accidentally won the lottery (certainly getting settlement was not their plan when they started!), and these lottery tickets cost zillions of dollars, plus an extra zillions-squared dollars if you lose. But that's just my paraphrase.

the exclusive source for orphaned works

Posted Sep 10, 2009 14:09 UTC (Thu) by tialaramex (subscriber, #21167) [Link] (5 responses)

To the extent that I'm able to understand it at all, Samuelson's argument seems silly. It asserts that a scenario like the one we are discussing, the one which caused it to be written, is so unlikely as to be dismissed out of hand. But that makes no sense.

Suppose we rewrite the lone paragraph that discusses this (feel free to bring up the original and compare word by word):

One way that Google, Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a broad license would be by starting a project to scan books. The scanner might well then be sued for copyright infringement. The lawsuit would probably be settled for similar terms to those we're discussing. Thus competition is open to any entity with sufficient resources to make a decent fist of competing in the first place.

I've changed nothing except Samuelson's unspoken assumption that Google is a special case, and I get to a completely different conclusion. My paragraph (unlike the original) is compatible with observed reality, such a project was set up by Google, there was a lawsuit, this is the settlement.

the exclusive source for orphaned works

Posted Sep 11, 2009 19:31 UTC (Fri) by njs (subscriber, #40338) [Link] (4 responses)

The fact that something has happened once does not mean that it can easily be reproduced on demand. I just looked out my window and saw a car with license plate 7PYU801 go by -- I invite others to do the same whenever they feel like it. To argue whether something is reproducible, one has to consider at the actual events involved.

Duplicating Google's feat requires a huge pile of money (where would the Open Content Alliance get this?) to even try, then you have to convince a judge to certify this huge class again (not clear that any would be willing, given the furor raised by this case -- class action law isn't supposed to be way for defendants to write custom legislation, nor are judges really happy to see their court used for these sorts of shenanigans), and either get some sympathetic group to represent the plaintiffs or convince the Author's Guild to give them a more liberal deal than Google got. Given that the Author's Guild is the same folks who killed Kindle's read-aloud feature because it was oh so copyright infringing, and would by this point be pulling down oodles of cash from their exclusive deal with Google, why in the world would they do anything that OCA wanted?

I'm not a lawyer nor involved in the detailed negotiations here; maybe everything I just said is possible. I hope that if the settlement is approved, OCA gives it a try. But when lawyers who *do* follow these things are dismissing the possibility as essentially impossible, that doesn't make me very hopeful.

the exclusive source for orphaned works

Posted Sep 12, 2009 5:09 UTC (Sat) by tialaramex (subscriber, #21167) [Link] (3 responses)

Yes, it would be expensive to do this. But it would be expensive to do this regardless of whether it involved a lawsuit.

Someone remarked in one of the many other discussions I've read on this topic (coming from a very different direction, in this case research use of the metadata from the project) that Google must have spent "tens of millions" of dollars. This provoked mirth from Google employees. I guess it's quite the wrong order of magnitude.

A lawyer is qualified to know the law, and to understand procedure. If the issue was whether I understand procedure, or know the laws, I'd defer. You may not have thought about this, but the _judge_ who has all the evidence in this matter and a good deal more time to think about it, is also a lawyer. If they think the settlement is "shenanigans" they'll reject it. But it isn't "shenanigans" just because you, or Samuelson, or the FSF say so.

You moved the goalposts, perhaps accidentally, in asking for "a more liberal deal than Google got". What's wrong with the Google deal that means any possible second or subsequent deal would need to be "more liberal" ?

the exclusive source for orphaned works

Posted Sep 12, 2009 12:24 UTC (Sat) by njs (subscriber, #40338) [Link] (2 responses)

> But it would be expensive to do this regardless of whether it involved a lawsuit.

Nonsense. If Congress passed a law saying "hey, everyone, you all get the deal Google gets -- you can scan and sell e-books and post snippets etc. for all authors not on this blacklist, just send 63% of your profits to the following address", then there are lots and lots of people and groups who could do useful and interesting things with that ability, without spending hundreds of millions of dollars up front. (Obviously making this work in practice would be much more complicated, but the basic barrier to entry is not necessary.)

> You may not have thought about this, but...

Well... we're verging on incivility here and not convincing each other, so I'll just try to clarify my earlier comment and leave it at that.

By "shenanigans" I wasn't talking about Google; I was referring to our hypothetical group who created a class-action-sized civil wrong for the exclusive purpose of getting sued and then making a deal with the class representative because that's easier than finding all the actual members of the class and negotiating with them. My strong impression is that judges don't look kindly at people who try to manipulate the court system like that. (Google did something quite different: they started the book scanning project for independently worthy purposes, intended to defend it using traditional legal arguments like fair use, and then this deal fell in their laps and they're running with it.)

And fair call on the goalposts -- here's where I'm coming from. The part I find offensive about the settlement is that we're putting a private entity with a profit motive effectively in charge of determining the pricing and availability of orphan works, in a sort of compulsory licensing scheme. I'm all for orphan works being available, compulsory licensing is a plausible approach with a long history, but there are a lot of important interests here -- including the public good! -- and they aren't all represented by this private corporation + small industry trade group setup. If we want to fix this, it isn't really helpful if, I dunno, Microsoft goes and gets their own settlement. We would need someone with a broader mandate, representing librarians and the public and who-ever else. But, by definition, their primary concern would no longer be profit, so they probably couldn't monetize a settlement as well as Google, so why would the Authors Guild even talk to them?

the exclusive source for orphaned works

Posted Sep 12, 2009 18:21 UTC (Sat) by dlang (guest, #313) [Link] (1 responses)

did you read google's announcement? what I saw of it didn't say that google would be setting the pricing when others access the library

the exclusive source for orphaned works

Posted Sep 12, 2009 21:55 UTC (Sat) by njs (subscriber, #40338) [Link]

It's great if Google choose to give others some of the benefits of their settlement rights -- but they still dictate the terms of that, and can always change their mind. Fortunately, Google's worry about anti-trust law means that this part of "effective copyright law" won't be determined *purely* by Google's whim, but it hardly fixes the fundamental problem.

not an exclusive deal

Posted Sep 11, 2009 16:16 UTC (Fri) by dlang (guest, #313) [Link]

google made an announcemnt yesterday saying that they would let others have access to the data, so if the result bears any resemblance to the press release anyone who is worried about the exclusive nature of the deal should be satisfied.