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Grimmelmann On Google Books Settlement Fairness Hearing
somanyrobots writes with an excerpt from New York Law School professor James Grimmelmann's cogent report from Friday's fairness hearing about the current Google Books Library Project settlement agreement. That agreement has been proposed to resolve the dispute between Google and various rights holders about Google's plan to scan and electronically distribute many written works, including "orphan" works.
"I was at the courthouse from 8:30 onwards, with the team of New York Law School students who've been working on the Public Index. We didn't want to take any chances that we might not make it in. (Last time, we were among the very last people seated.) No worries there; we got great seats in the overflow room, and in the afternoon, in the courtroom itself. I'm very glad I had the student team along with me. Their observations and insights about the arguments and the lawyers were invaluable in helping me write up this post. Other than my conversation with them, I've avoided reading the press coverage; I wanted to provide a direct account of how I saw the day's events, without being influenced by others' takes."
I'm not sure which way to point in this issue, but there is valid discussion on both sides. All I can say is this is one well done report!
Support NYCountryLawyer RIAA vs People
Why doesn't Congress act and moot these proceedings?
[Fuck Beta]
o0t!
http://laboratorium.net.nyud.net/archive/2010/02/20/gbs_fairness_hearing_report
Google's position is that other people's property can be sold to the public by a third party without permission from the owner or creator as long as the seller has copied it. The action of copying a work then confers the right to sell or distribute, with the controlling legal test being the convenience of some user.
The opt-out takings clause pretends a nonexistant practical protection for the original owners, which becomes impossible when the courts later invalidate google's claim to monopoly rights, rights which fly in the face of equal application of the law.
Since copying, rather than creation or contract, provides a very weak claim for the seisure of monopoly rights to property, the courts will necessarily, over time, invalidate the monopoly claim, leaving the principle that copying confers distribution rights to intellectual property, as long the distribution is convenient to the public, defined as any user except the author or owner.
There is no strong reason that such a legal principle, once established in law, cannot be extended to other kinds of digital property, such as medical, financial, and legal records, given their obvious value in the marketplace to users who are well endowed to fund both legislative and court based extensions. The action necessary to obtain such rights is, according to google, copying, a convenient test for the internet age.
Remember, your privacy is not a contract, it is just a policy, subject to revocation at any time.
Can it be crowdsourcing when you bring your own crowd?
I didn't make it to the courtoom on time.
Random Thoughts From A Diseased Mind (Not For Dummies)
...they didn't get their cut.
I didn't make it to the courtroom on time.
Random Thoughts From A Diseased Mind (Not For Dummies)
It was great to read that the Internet Archive had what was viewed as the best and most cohesive argument. However, I think they are playing a weak card by not arguing for turning the works into the public domain. In the end, these books on Google's servers are not really free, they are only free for Google to keep, and for you to look at behind glass. If they were actually turned over into the public domain, then everyone could use them and benefit. They could be hosted at the Internet Archive, or on Project Gutenberg in various formats available to everyone. This is what I would really like, not just freedom for one company to profit from a special privilege.
Systemd: the PulseAudio of init systems
Google's position is that other people's property can be sold to the public by a third party without permission from the owner or creator as long as the seller has copied it. The action of copying a work then confers the right to sell or distribute, with the controlling legal test being the convenience of some user.
Sounds great. Applies to music and movies as well? So there is no such thing as copyright anymore?
That's a gross misrepresentation of Google's position, which is significantly complicated such that it can't be easily distilled into two sentences.. Here's a more adequate summary of my interpretation of Google's position:
Other people's properties can be digitally distributed. When a property owner can be identified, that owner has the right to set a price for sale or opt their property out of further distribution. When a property owner cannot be identified, proceeds will be collected for each sale, and that amount less administrative costs for the distribution are held by a third party until such time as the actual property owner stakes their claim on their property. At that time, the property owner can gain the same rights over distribution of their property as anyone else who has been identified as a property owner, and all parties who make use of the unidentified property owner clearing house will be obligated to abide by the property owner's decisions.
Monopoly power doesn't exist, because any property owner may opt to use any other distribution channel for their property, and all property that is being copied and distributed by Google can also be copied and distributed by any other party who desires to take the effort to scan the original work and transmit proceeds to the third party property owner clearing house for any property which they haven't explicitly gained the right to distribute.
You're correct that this principle can be applied to any other media. I see no reason why it shouldn't.
Sweet, well in that cast I'm going to go sell some music that the RIAA has rights to. But it's alright, because I'm giving them permission to not sell it, they just have to opt-out. I mean, the RIAA never told me they DIDN'T want me to sell music and make a profit off of something they have a claim to.
But who sets the proceeds? Can a non-profit like Project Gutenberg assume that the copyright holder is making no proceeds today, so not generating any proceeds themselves is also okay? If so, then essentially they could start indexing all works in copyright or not and only halt when so ordered. That'd go a long way to limit copyright...
Live today, because you never know what tomorrow brings
However, I haven't seen anyone question the fact that Google has already copied millions of entire books that they didn't purchase and don't physically own. When did this become legal, and why can't I do the same (or can I)?
Google has presumably saved $100s of millions by not having to purchase the books they are scanning, like ordinary people (in the U.S.) are expected to. (And I get the sense that ordinary people may even be taking a legal risk by scanning books they do own, because then they won't have to buy the ebook version.) What makes Google special in this regard? Why aren't they subject to a $200,000 per book (or even per chapter, if based on the RIAA model) copyright violation suit?
I have an interest in this, because I am collecting PDFs of my own library (which I have purchased and physically own). Yet it seems that I may be skirting the law, particularly if I download the PDFs from piratebay etc., risking a possible huge infringement suit.
Actually, I would pay a reasonable price for a clean, unsecured PDF of better quality and smaller file size than what I can download or scan myself, for my permanent electronic library, but publishers have chosen not to offer this. But I will never buy a DRMed ebook that in I can't read on any device I want, that will stop working when the approved reader dies or the company changes its mind or goes out of business. Just like a my physical library of fine books, I want a permanent electronic library of high-quality PDFs.
While the idea that 'orphan' books could be made available to the public is very pleasent and downright helpful to scholars, the Opt-Out position Google has taken is fundamentally at odds with the copyright system. US Copyright law does not distinguish the protections it offers to properties based on their commercialization or availabilty and the 1978 changes to the copyright act extending protections to unpublished works clearly indicates that inaction does not negate the protections offered. If the US Congress and Senate wanted to make changes that would allow works that are not being made available to enter public domain or be 'adopted' by non-owners they certainly could and it would even be in line with the original spirit of the copyright (unlike the majority of copyright laws passed since 1909).
Opt-In will certainly result in less books being available and more effort on Google's part but is the only approach that is fundamentally compatible with the law. As any Slashdotter knows once something is digitized and available on the internet, it is virtually impossible to remove it should the public have even the slightest interest in it. How then can the property owner 'reclaim' their rights and remove it from distribution? An author or publisher has a right to control the availability of their works and money collected can not act as sufficient remedy, nor can legal action be pursued against Google as they have been relieved of any ongoing liability for their acts in this regard.
If this is allowed to go forward it creates a precedent that if you make even the vaguest effort to contact the original owner of a work, you may go ahead and publish (and profit) from it provided that you set aside a portion of those profits for the owner should they ever claim it. This could be anything from music, to your child's artwork, to that naughty sextape you made in college.
I know of a situation where there has been a great demand for reprints of old (about 50 years worth) of a certain hobbyist compilation book series. The original publisher is still in business and publish a hobbyist magazine in this field, after many years of demand the publisher continue to assert that the original contracts (and therefore copyright law) with the numerous contributors to the book do not allow them to reissue the work even if they wanted to. Would anyone of the hundreds if not thousands of contributors have the right to stop the publication of these google copies? Would the "publisher" acting under the contract with the contributors? Which leads back to this reprint issue that has been going on for over 20 years, who owns it anyway?
You can if you take some of this Grimmelmann's secret gold coins.
Let's break it down:
Take Slashdot hivemind favorite Neal Stephenson. Are you trying to tell me that I -- or better yet, some e-e-e-e-vil Hollywood studio -- should be able to make a movie today from his "Snowcrash" -- same title, characters, lift the dialogue, whole nine yards -- and not pay Stephenson a dime? Is that what you are proposing? Seriously?
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"You're correct that this principle can be applied to any other media. I see no reason why it shouldn't." Amazingly enough it is .... a company (monopoly) set up with exclusive rights to collect money for any works on behalf of the copyright owners where the owners must register to receive their pay and at the same time absolves the distributor for figuring out who has the copyright.
This company in the USA is called ... ah yes our friend soundexchange (Some posts a while ago were rather mean spirited towards them) but the precedent for this kind of entity has already been set. They are not required to find the copyright holders, just hold on to the money and the copyright holder has to come to them.
I think the difficulty of orphaned works is underestimated.
Gowers Review of Intellectual Property discusses in great detail
the subject of orphaned works. Here is a copy:
http://2038bug.com/gowers.pdf
If google cannot find an economical way to deal with orphaned
works, their project may not be viable.
So yes, the crux of this debate is orphaned works. But that
doesn't really help it much.
The review discusses proposed new EU legislation regarding
orphaned works.
Denying orphaned works, google can only make worthwhile availability
of works that are (a) of value, (b) clear ownership, (c) not being sold.
The set of books that satisfy all three criteria is small.
(If anyone thinks it is *not* small, than this is a point that must
be cleared up first and foremost. Katz clearly thinks it is small.)
because they have deep pockets to skirt a broken legal status quo
in other words, everyone should be able to do what google does, but only google does it, not as an abuse of their financial power, but because their financial power puts them beyond the abuse of our broken intellectual property laws
google is not the problem. our antiquated intellectual property laws are
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
The sad thing is that the ruling might make it illegal to even cite one book or article in another without asking for the permission first.
The same entities that force songwriters to license their songs for a set amount or force musicians to allow radio stations to play songs without negotiating individually.
Look up "mechanical licenses".
If you wanted to do this, you would have to follow the same steps as Google: infringe, get sued, argue for a settlement permitting the infringement.
That's a great question, and I suspect that the answer to this is buried somewhere in all the court paperwork. Call me lazy: I RTFA, but I didn't real all of the court documentation...
Here are some ways that it _could_ work fairly:
1.) An amount set by the clearinghouse. The clearinghouse would act on behalf of (and in the interest of) the owner and set the price.
2.) An amount set by congress.
3.) An amount determined by a long-term auction (determining how much buyers are willing to pay) by the seller.
4.) An amount determined by a long-term auction by the clearinghouse.
In the case of orphaned works, so long as "due diligence" to collect fair proceeds for the sale of the work has occurred, I'm not actually worried that the owner of the work doesn't eventually collect what they actually wanted. Chances are, the money they receive will be more than they would have received otherwise. Plus, once they register as the work's owner, they can begin to set their own price.
Actually, it can be trivially reduced to two sentences - which the OP brilliantly did.
Except you didn't summarize Google's position - you took the bitter core (Google wants to use other peoples content without going to the (currently) legally required trouble to obtain permission), and then heaped high fructose corn syrup and spin (Google will pay you for their thievery if you notice it has occurred*) on top.
It's the bitter core that people are objecting to, that Google seeks the right to violate black letter law at will. No amount of sugar or spin can make this palatable.
In other words, Google magnanimously will allow other people the right to violate black letter law as well, fully knowing that saying "any other party can scan/digitize/distribute if they want to" is tantamount to saying "any can write an OS who cares to". Not to mention that we still find the same bitter core under that sugar.
I think you grossly misunderstood the OP. He's pointing out that once one right currently enshrined in black letter law is overridden because it is inconvenient for Google to obey the law, then potentially other rights will similarly follow. Imagine Microsoft, or Bank of America, or Wal Mart finding protecting your rights inconvenient and, using the Google settlement as precedent, obtaining a ruling that they no longer need to follow laws inconvenient to them. There's potentially a great deal at stake here - and supporting Google because they dress in sheep's clothing is a grave mistake.
* This alone is a perversion of established legal principles - where I am not required to be aware of the thievery for the thief to liable for the theft.
"Taking the effort to scan" the original work is not the legal test google proposes, copying the original work is (whatever the technical manner.) The *effort and expense* meme is a public relations argument, rather than a legal one, an effort at distraction from and legitimization of, the core issue of obtaining rights by copying. There is no "expense to obtain a copy" test, nor does an opt-out mechanism provide any guarantee of sufficient search for creators, owners, or heirs, especially since minimizing cost over a vast property grab is the business model being employed.