the exclusive source for orphaned works

Posted Sep 10, 2009 14:09 UTC (Thu) by tialaramex (subscriber, #21167)
In reply to: the exclusive source for orphaned works by njs
Parent article: EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal

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.