Google Book Search Settlement Receiving Criticism

waderoush writes "While James Gleick, Lawrence Lessig, and other pundits have reacted positively to this week's proposed settlement of the publishing industry's lawsuit against Google over the Google Book Search project, a deeper study of the agreement turns up some worrisome provisions that could make online access to books much more costly and difficult than it needs to be. Harvard University's libraries, for example, declined to endorse the settlement over concerns that it provides no mechanism for keeping the cost of access to books reasonable. And while the parties to the settlement have made much of the clause providing public libraries with free full-text access to Google's database of over 7 million out-of-print books, Xconomy has a post pointing out that this access is restricted to exactly one Google terminal per library. So, you can read books for free — as long as you're the first person to get to your public library's computer room in the morning."

Comments

Massive parallelization of libraries?

[pfbram]

Well, maybe libraries need to build a string of tiny booths outdoors, each with a little consecutively numbered sign: Library 0, Library 1...Library N and one terminal, comfortable chair and window in each of them. It would seem to meet the letter of the agreement. ;-)

Common sense revolts

[mcgrew]

I've been reading Lessig's Free Culture (available online somewhere; I have a local copy). From the preface:

On December 17, 1903, on a windy North Carolina beach for just shy of one hundred seconds, the Wright brothers demonstrated that a heavier-than-air, self-propelled vehicle could fly. The moment was electric and its importance widely understood. Almost immediately, there was an explosion of interest in this newfound technology of manned flight, and a gaggle of innovators began to build upon it.

At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, and all the space above, to "an indefinite extent, upwards."1 For many years, scholars had puzzled about how best to interpret the idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese for their willful and regular trespass?

Then came airplanes, and for the first time, this principle of American law--deep within the foundations of our tradition, and acknowledged by the most important legal thinkers of our past--mattered. If my land reaches to the heavens, what happens when United flies over my field? Do I have the right to banish it from my property? Am I allowed to enter into an exclusive license with Delta Airlines? Could we set up an auction to decide how much these rights are worth?

In 1945, these questions became a federal case. When North Carolina farmers Thomas Lee and Tinie Causby started losing chickens because of low-flying military aircraft (the terrified chickens apparently flew into the barn walls and died), the Causbys filed a lawsuit saying that the government was trespassing on their land. The airplanes, of course, never touched the surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had said, their land reached to "an indefinite extent, upwards," then the government was trespassing on their property, and the Causbys wanted it to stop.

The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the heavens, then Congress's declaration could well have been an unconstitutional "taking" of property without compensation. The Court acknowledged that "it is ancient doctrine that common law ownership of the land extended to the periphery of the universe." But Justice Douglas had no patience for ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As he wrote for the Court,

[The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.2

"Common sense revolts at the idea."

He's no Isaac Asimov; the book isn't exactly gripping, but what he has to say is incredibly important.

Ironically, searching Google Books for Lessig's freely available book yields this: "This is a preview. The total pages displayed will be limited."

You can read/download it here at. Here is a PDF version.

Re:Common sense revolts

[cdrguru]

The idea of "property rights" is a relatively recent notion and one that is not shared by all people. To many cultures, some admittedly obsolete, the idea of some thing or some place "belonging" to anyone is utterly foreign. The Inuit and aboriginal folk in Australia have no concept of property and property rights.

Of course, while cultures that do not have property rights may have produced some interesting artwork, these cultures have virtually no other standing in the world today. They are not known for intellectual achievements, nor engineering works nor really anything at all. I would say it seems to have been necessary for the evolution of a people to actually create things and concepts of value for that people to develop the idea of personal property. Without it there seems to be a lack of motivation.

Re:Common sense revolts

[SirGarlon]

Here we have a classic case of what Republicans "legislating from the bench." Justice Douglas' argument boils down to "the past 1000 years of Anglo-Saxon legal tradition, which we the people have willingly incorporated into our jurisprudence, are inconvenient and don't make a lot of sense. I could follow the law as it is, rule in accordance with the established law of the land, and find in favor of the plaintiffs, but nah, my common sense revolts at the idea. So instead I'll redefine what property means right here in this courtroom, all by myself, without any input from the legislature or the general public."

Yes, it's nonsense to have property rights extend to the boundary of the known universe. But think for a moment if the verdict in this case had been, "Sorry, Congress, property rights haven't changed and technically overflying private property is trespass. You've got two laws, the property rights common-law definition and this new thing about airplanes, and the older law wins. Maybe you ought to change one of 'em."

Then Congress would have formally passed a new definition of property rights, and it could have come up for debate, been subject to Presidential veto, and generally gone through the whole deliberative process by which laws are supposed to get made.

Frankly, I am all in favor of the Supreme Court's power to strike down laws that violate the Constitution ... but violating "common sense" ain't the same thing.

Re:Common sense revolts

[swillden]

"Sorry, Congress, property rights haven't changed and technically overflying private property is trespass. You've got two laws, the property rights common-law definition and this new thing about airplanes, and the older law wins. Maybe you ought to change one of 'em."

That's what Congress did when it declared the airways public. If the first new law didn't beat out the old law, why would a second?

Frankly, I am all in favor of the Supreme Court's power to strike down laws that violate the Constitution ... but violating "common sense" ain't the same thing.

You're in favor of striking down the laws against libel and slander, or speech that endangers people? Much of the job of the Supreme Court is balancing the brief and non-specific words in the Constitution and amendments with the dictates of common sense and the weight of history and precedent. Lower courts also have to do the same thing when applying the law to their cases. It's necessary because it's impossible to write a legal code that is both fully specified and just. If it were possible, we could implement the law with a computer program and we wouldn't need judges.

Just did a term paper on this very subject

[SIR_Taco]

I just finished a term paper for University on this very subject, my argument and topic of discussion was why an online book resource and/or library differs from a traditional library.
If Google were to purchase a copy of a book and lend it out electronically, and a library were to purchase a copy of a book and lend it out physically how do they differ?
The main difference is that the library likely has only one copy and only one copy can be borrowed at a time. If they were to have more than one copy they could thus lend out more at one time but would thus have to pay for each additional copy. Google, on the other hand, has purchased one copy of a book which can be borrowed simultaneously by X number of people around the world without the need to purchase additional copies.
The issue of volumes being out of print should be of no direct concern to the publishing industry. They have no desire or need to republish the book, hence it being out of print, so it really should just become part of the public domain and freely available to anyone who wishes to read it.
Of course the problem with that is that the price of rare out of print book sales might be effected negatively. There is no easy answer, just a more preferable one depending on which side of the fence you are on.

Re:Just did a term paper on this very subject

[mcgrew]

I have argued that this is one way that copyright should be reformed - that once a work is out of print, it is in the public domain. Disney's habit of bringing out of print movies every seven years is IMO sleazy.

Of course, it would be a moot point if copyrights were reasonable length; say, 20 years. Can anyone argue that JRR Tolkien will ever write any more books?

Hmm...

[Troll14]

Do these 7 million out-of-print books include porno mags? I'd love to see Marilyn Monroe pop up while searching the archives!

Where to address the reading issue.

[maxume]

The reading issue is better addressed with Congress than it is the publishing industry. Sure, the publishing industry has a lot more friends in Congress than the public seems to, but ultimately, the best solution is not to hope that a large company can force the industry into favorable terms, it is reasonable terms for copyright.

Re:How is this googles fault?

[sexconker]

It's Google's fault because the program only came about AFTER being sued, for the very thing you describe.