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== 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!
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.
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.
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 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.
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 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?
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.