|Google Books Settlement - Sergey Brin Writes a NY Times Op-Ed Article|
On October 8, 2009 the New York Times published an op-ed piece about the Google Books settlement, written by Google co-founder Sergey Brin.
== BACKGROUND ==
The Google Books settlement [googlebooksettlement.com] was reached in October 2008 between Google, the Authors Guild and five major book publishers on behalf of the Association of American Publishers - so why is Sergey writing an Op-Ed piece about it nearly a year later?
In August 2009, the Internet Archive organized a coalition to challenge the Google Books settlement [mashable.com], citing concern about unfair competition and user privacy. The coalition is said to include Amazon, Microsoft and Yahoo, who are all players in the emerging e-books market.
So the coalition got the US Department of Justice to take a look, and on September 24, United States District Court Judge Denny Chin granted an indefinite delay [bits.blogs.nytimes.com] to a scheduled October 7 hearing. It seems that the original parties are renegotiating their settlement to address the coalition's concerns, so a hearing on the old settlement makes no sense. The old settlement is apparently dead.
Judge Chin wrote, "It would appear that if a fair and reasonable settlement can be struck, the public would benefit", and this also echoes the opinion of the DOJ.
== THE PRESENT MOMENT ==
Brin's writes that he wants to dispel myths about the 2008 settlement - and he takes on the anti-trust concerns most visibly, saying "If Google Books is successful, others will follow. And they will have an easier path: this agreement creates a books rights registry that will encourage rights holders to come forward and will provide a convenient way for other projects to obtain permissions."
Once you have the background context for Brin's opinion, and you see that he is trying to pave the way for the new settlement (to be announced soon, I assume) his article is a worthwhile read: Sergey Brin's NY Times Op-Ed Article [nytimes.com]
== SIDE NOTE ==
One of the coalition's leaders is Gary Reback, a lawyer who was prominently involved in the Microsoft antitrust investigation of the 1990s. I guess Microsoft isn't holding a grudge!
Brin forgot to add that "others will follow" only if they show Google's disregard for copyright laws, and only if they have billions in the bank to indemnify the libraries that are assisting Google's scanning of in-copyright books. Google, in its secret contracts with the University of Michigan, the University of California, and the University of Texas, indemnified these libraries against any future copyright litigation. Presumably Google's contracts with other libraries contain the same clause.
U.S. copyright law, as amended in 1999, provides damages of "not less than $750 or more than $30,000" per infringement. If you are talking about hundreds of thousands of books from a particular library, it's no wonder that the libraries wanted indemnification before cooperating with Google.
Others will follow, but only if they are stinkin' rich or suicidal. The proper course of action is for Google to stop the scanning of in-copyright books, and place its current collection of in-copyright scans in a dark archive, and wait until 1) Congress or the Supreme Court clarifies whether Google's copying is legal, or 2) Google gets the "express consent" from the rightsholder that the law requires before using anything that is copyrighted.
The DoJ is not the current stumbling block. G faces Germany and France in this as well.
It is of note that the coalition's protests - the factor that has delayed an agreement - were NOT about Intellectual Property concerns. They were about anti-trust concerns and privacy protection.
I agree with tangor, some of the big stumbling blocks are international, rather than being confined to the US.
I also agree with the stated goal - not to allow the total of hard-won human knowledge to suffer any more grievous losses. If that goal were the only factor here, then even international agreement would be a lot easier. Instead, we also have the business motives of e-publishing, and the concern about any one entity pre-empting an entire market before it even emerges.
I have one client whose copyrighted books are part of this brouhaha, and their legal team is quite mixed in opinion about it. On the one hand, this is a small press whose most significant struggle is making their information known - something that the Google Books project might very well help. On the other hand, this client has had the same concerns many do about assigning some of their intellectual property rights.
The proposed settlement from Oct 2008 did seem to resolve most of their IP concerns, but these recent factors brought up by the coalition are questions worth raising. This is an issue that we need to "get right" - at least as far as the foreseeable future is concerned. If some future technology allows knowledge to be beamed directly into your gray matter, then another look may be in order.
It's not true that there is no concern about copyright in the U.S. Yes, the Electronic Frontier Foundation feels that scanning entire works for search purposes is "fair use," and so do many libertarian-oriented geeks. EFF even expressed disappointment over the Settlement because it meant that the fair use issue, which was the initial basis of the authors and publishers lawsuits filed in 2005, was completely sidetracked. The EFF feels that the fair use issue should be litigated because they think Google will win. It's also true that Europe and Japan have little or no "fair use" provisions, and they are very much concerned about the copyright issue. In the U.S., the EFF, ACLU, EPIC, and the ALA are very concerned over the privacy issue. Apparently the FTC will be carrying the ball on privacy, not the DOJ.
However, if you read the Justice Department filing with the Court, DOJ specifically recommends an opt-in procedure for the Registry, as opposed to the opt-out that Settlement 1.0 currently requires for authors and publishers. This opt-in vs. opt-out issue goes to the heart of the copyright issue. Moreover, the U.S. Copyright Office took a very strong position against the Settlement in its statement to Congress, insisting that approval of the Settlement would mean that Google will be allowed to break the law.
Congress or the Supreme Court will have to clarify the fair use issue with respect to Google's scanning entire works for the purpose of searching. There is no way a mere District Court judge can approve of Google's copying without getting challenged on appeal. Courts are supposed to interpret the law, not create law, and Congress is jealous of its turf on this issue.
One of the several criteria that defines "fair use" in Section 107 of U.S. copyright law is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." From the very beginning, Google has been open about its plans to show ads alongside the snippets of copyrighted material. The latest information is that apparently Google also intends to show ads alongside of its search results even on library terminals!
Forget the Library of Alexandria drivel, because Google is in it for the money. Look at the confidential agreements between the libraries and Google, and you will see that they are very restrictive in terms of what the libraries can do with their own copies of the scans.
The reason that Brin is wrong about "others will follow" is because Google would have had it all locked up if Settlement 1.0 had gone through. In another couple months we will know what Settlement 2.0 proposes.
I'm not at all concerned about Google getting a monopoly. Others can scan books, even if not as efficiently (just as others can build search engines and huge server farms--although not as efficiently.)
I'm more concerned about the Author's Guild monopoly. Google can't stop someone else from building even more efficient scanners and going to work. The Author's Guild can. Google can't lock up orphan works (and, face it, the ONLY difference between opt-in and opt-out is the orphan works!)--the Author's Guild can--even though no member had any part in the creation of those works! Google won't aggressively erode "fair use" (which is, in fact, the body of copying rights legally owned by the public!). The Author's Guild can.
What really ought to be "opt-in" is membership in the Author's Guild. So long as the guild is not allowed to assume the right to represent anyone not a paying member, then there's a chance that the real members of the public won't be giving up their rights to a alleged but nonexistant owner of an orphan work.
If Brin's (and Google's) motives are as altruistic as his op-ed piece infers, why didn't Google just donate a a few million (or billion) to Project Gutenberg?
Project Gutenberg serves a very different need. I can say that Google provides (and continues to provide) valuable, much-appreciated assistance to PG. Google Books is a standard source for page scans (to be turned into e-texts at PG.) I've personally used Google book images for several books that are already posted at PG (and elsewhere). I use Google books to research authors (and have found books that otherwise might well have remained hidden.)
From my perspective as a small-to-medium contributor to Project Gutenberg, Google owes us nothing, but has given a great deal.
I could ask why anyone-in-particular hasn't contributed whatever-I'd-like to whatever-cause-motivates-me, but it's _always_ an unfair question. The whole point is, everyone gets to choose what they think is important enough to give. Otherwise, it's not a gift from a donor, it's theft/extortion from a victim. And I can absolutely say that the question you raise ("Why hasn't Google...") simply is an absolute non-issue in the Project Gutenberg Distributed Proofreaders' forum (Distributed Proofreaders, pgdp.net -- the community that has contributed over half of PG's books.) I can't imagine a sincere reason for the question.
Personally, I'd like to see Google do copyright clearances on all their books. That would help PG even more. But ... I know how much work that would be (all by itself it often takes more time than scanning the whole book); it's frequently not possible to get a conclusive positive answer; and--Google isn't really looking to irritate publishers (which it would).
I think what is at the core of this issue is the change business models have to make now that this new medium called the internet has appeared.
I appreciate how everyone against Google Books project feels that the current business model employed by book publishing companies, record label companies, movie producers, photographers, and other intellectual property right based industries are fair.
But is the law ever about what is fair? I mean, the law, intellectual property right laws included, are there to create order, protect and allow society to prosper. By society I'm referring to the masses (the majority) in any democratic society.
Now it is clear the majority of people in the US do not feel current intellectual property right laws are adequate. That is why they are breaking them.
What needs to be done, isn't a small group of people that should force the majority into certain positions, but rather vice-versa. That is why these industries need to adapt and stop wasting time clinging on to antiqued business models.
The inherent value of different types of labor, be it a singer or a biologist isn't something sent from another dimension. It is something determined by society. Society in a democratic nation being the majority. So is it fair to uphold laws that the majority are clearly against?
Google is saying the same as the pirate bay people:
If you oppress us, you will only make us stronger. If you shut us down, 10 more will pop up in the same place.
Why continue to pursue laws (including ban on some drugs and prostitution) if they clearly don't cut down on the problem? These laws only make criminals out of ordinary people.
Government and industries should adapt to their people, not the other way around. Remember copy right laws, as they exist, didn't always exists and arts prospered just fine.
In fact, if you look at other fields like biology, where practitioners rarely earn any considerable amounts of money, there is hardly a lack of participants and development.
I'm a 'pirate' (I've downloaded illegal music), yet I also buy CDs and movies when I really like them. I just download stuff to 'screen' what I buy. So should someone bust down my door for that?
|From my perspective as a small-to-medium contributor to Project Gutenberg, Google owes us nothing, but has given a great deal. |
Good enough. I wasn't aware PG got anything from Google... I kinda "assumed" Google's book related activities were defeating the mission of PG.
lexipixel, it's fair to say also, that Google is affecting the economics of Project Gutenberg, just as it's affecting the economics of other publishers. PG is trying to ADD value by its e-text giveaways. If a scanned image is available at your fingertips online, the need for a good e-text is reduced (and the economic value of our work is reduced.) And we still care about the value of our work, even if we're giving it away! (We want to give valuable gifts, not trinkets....) We want people to use our work -- but if (to take a real example) a republisher has a choice of typesetting a PG text or simply reprinting scanned Google images, some publishers may choose to print the image.
But ... that's the way optimization works. One person works to make building widgets easier; another works to reduce the number of widgets needed in manufacturing gadgets; yet another works to reduce the number of gadgets needed in the world economy. Each of these is good, valuable work--and each of these good works reduces the value of the others!
So Google makes it easier for us to do some books, and less important for us to do those same books. If the books are still important enough to do, Google has helped us -- if those books become less important, then Google has helped all the world's readers (more quickly, although not as much, for that book, as PG might have helped--eventually.)
PG adjusts, just like other publishers do. I personally look for material that Google can't yet do (because they don't do the copyright research.)
And, hey, even if you're building pro bono, you don't build for eternity. You serve your own generation -- build for 100 years -- at best. Eventually PG's work and Google's work, like everything else we can do, will be superseded. That's not a reason not to do it now, if it's worth doing now.