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."

Comments

OMG

[zappepcs]

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!

Re:OMG

[AK Marc]

I agree. Copyright exists to get as much into the Public Domain as soon as possible. Abandonware, whether software or books, should immediately enter the Public Domain. I have no idea how to accomplish that fairly, but I know that's best for the public and harms no creator (as they've abandoned their work already). So I can't see any argument against this idea, but I can see massive arguments against any particular implementations.

Re:OMG

[Colz Grigor]

The fastest way to get as much into the Public Domain as soon as possible is to abandon copyright, therefore I cannot agree with your premise.

I believe that Copyright exists to provide a person with the legal right of control over works which they own (and recourse should their control be usurped) up to a reasonable point, when the ownership is transferred to the state. That "reasonable point" has been debated and extended over time, complicating our current system.

Abandonware, or orphaned works, don't have a legal entity beyond works which do not have an identifiable owner, however so long as we have a date for the work's creation the work is still subject to that "reasonable point", and any time an owner can be identified, the work is no longer abandoned or orphaned.

If your principle of abandonware were instituted, how would a work be declared as abandonware, and how would you deal with the situation when the owner of an abandoned work comes forward after-the-fact?

Re:OMG

[esme]

I think this is the only way to prevent orphan works. And this argument is simple: if your book/film/song/etc. is "intellectual property", shouldn't you have to pay "intellectual property taxes"?

Re:OMG

[dwandy]

Given that 800 new books are published *every day* ...

...you still have nothing to substantiate the claim that copyright entices people to produce. I stipulate with equal authority that the fact that there are only 800 new books and not 1000 new books makes it fair to say that copyright does not work.

The "there is not such thing as imaginary property" crowd haven't come anywhere near proving that a system without copyright would generate anywhere near this amount of new content

It is obviously difficult to prove what a system without copyright would produce as there are few areas where some form of intellectual monopoly has not been implemented by the incumbents. The fashion industry is one example where we can see that a complete lack of ability to prohibit others from copying you causes significant innovation and creativity. That the big fashion producers are looking for protection now is quite telling: It has nothing to do with giving incentives to create, but everything to do with monopoly profits.

It is of course not for us (who believe the system causes more harm than good) to prove that it works: the onus is on you to prove that it works as you are in favor of restricting everyone's physical property rights for imaginary ones.

One simple question to ask is for you to provide a single Monopoly that has given us more choice, better products and lower prices than competition? Former monopolies like the TelCo's of course provided the best, most varied and least expensive handsets when they had a lock on providing these handsets, right?

isn't just rehashes and remixes of existing copyrighted material

...and this is just foolishly naive. All works are built on those that came before. No author, no musician, no artist, no creator has generated their works in a vacuum. Authors read, musicians listen to music. All work is derivative. The majority (if not all) plots in modern books can be found in Shakespeare. Musical styles can be traced quite easily going back decades for modern music and for many melodies or themes going back centuries. That Disney "stole" Steamboat Willy from the public domain and now refuses to let Willy (aka: Mickey) back into the public domain demonstrates the true motives. Had we had the current copyright law in the 1800s, Dracula would not be in the public domain and we wouldn't have any of the thousands (hundreds of thousands?) of vampire movies, books, TV shows, music, paintings, jewelry etc. They would all be derivative works and most likely never have been created. Intellectual monopolies (both patent and copyright) cause holes in innovation and creativity that remain untapped: few people are going to create in a space where someone else can (at any time later) tell you that they own your creation as well.

Obviously having a way to reward creators is a good thing: we all need to eat. But there is a pile of negatives that come along with copyright and I can't agree that it is in any way obvious that granting a monopoly is ever good economic policy.

Progress is made at the speed of information. It is ironic that when information moved by foot or boat we had less artificial restrictions than now when information can move around the globe at the speed of the internet.

Internet Archive

[plasticsquirrel]

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.

Re:Why can Google copy books they didn't buy?

[Isaac-1]

The answer is simple, the AA's, etc. don't want to challenge the modern interpretation of copyright laws that were written a couple of centuries ago. As this modern interpretation is one they have helped shape by going after only people with shallow pockets, mainly over the last half century as duplication technologies has emerged. Before then copyright was about keeping one publisher from stealing another publishers work.

Re:Why can Google copy books they didn't buy?

[cduffy]

This is about scanning library books, not collecting PDFs -- but if this settlement passes, you'll be able to do the same thing as Google.

However, doing the same thing as Google will require that you collect revenues for any purchases of these scans (and remit them to the copyright holders should they be identified), and recognize and exclude any commercially available books, and likewise obey a huge number of other restrictions and limitations.

I'm not convinced of the legality of this settlement -- but it's outstanding public policy, and so I hope that the legality gets worked out (through act of Congress if need be, though that seems unlikely in the near future).