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

[seifried]

Simple, you have a yearly registration and nominal fee (say $1 per work). If the copyright holder doesn't register and pay the fee within say 30 days of a new year the copyright lapses and the work enters the public domain. Optionally you have the fee increase with the value of the copyrighted material (this could be done arbitrarily by raising the fee yearly, if the copyrighted material is worth enough money the fee will continue to be registered). This is basically the same idea as property taxes (you pay a few to keep the land even if you "own" it). The money made from this fee system could be tossed into general revenue, used to pay for the arts/etc, or whatever. I think the cost of copyright should be carried by the copyright holder and not by society (as it is right now since one automatically gets copyright for an absurdly long time just by creating a work).

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

[seifried]

Last I checked under my method you'd be able to create as much as you desire, it just wouldn't be copyrighted for a very long time. I give away a lot of my work under creative commons because I believe it's in my best interests to actually make things available to people for free and allow them to re purpose it. As it turns out this is correct and I've made a living for over a decade now doing this. It's not my job to find a workable business model that you like.

Re:OMG

[micheas]

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?

The theory is that if you have copyright protections, people will produce more, and therefore more will wind up in the public domain.

If this is not true, then why should the general populous allow copyright to exist? Being as we are not benefiting from copyright law, should we not scrap it?

Re:OMG

[bit01]

actually pay the government for the mere privilege of creating stuff?

No. The privilege of stopping billions of people from making a copy, in other words restricting the free speech of billions of people, and arbitrarily enforcing artificial scarcity.

A small annual fee is chickenfeed for that huge privilege.

---

DRM is the #1 cause of software failure today.

Re:OMG

[blarkon]

Given that 800 new books are published *every day* - it is fair to say that copyright does entice people to produce. 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 (which, because of copyright, isn't just rehashes and remixes of existing copyrighted material). Is dismantling a system that entices authors in English speaking countries to publish 800 new books *every day* worth risking so that less-than-original works based on existing concepts can exist?

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

[Late Adopter]

Except that over the time period since we've adopted automatic copyright, people have grown used to the right to not have their vacation pictures used by a corporate advertising department that sees them on Flickr. There's a lot of non-commercial works out there, ones that people would (rightly or wrongly) be upset to see misappropriated.

How about a 5-year grace period before requiring registration?

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.

Re:OMG

[DragonWriter]

Simple, you have a yearly registration and nominal fee (say $1 per work).

I think that, at a minimum, you need a reasonable (say 7-10 years) "free" period. (In order to encourage deposit, and thus discourage the loss of works, I'd consider having a strong deposit -- of a copy of the work in the form protected -- requirement, which if not complied with within (say) 1 year would result in the work losing protection, but I wouldn't associate payment with that.)

I also personally prefer that once you require paying a fee, you make it a fixed-percentage tax on the declared value of the work, with a minimum but no maximum, and allow a work to be bought into the public domain by any interested party (or combination of parties) for the declared value.

Since even most commercially viable works make the vast majority of the money they earn for their copyright holder in the first few years they exist, this would have little impact on the incentives to create new works. It would also allow creators the choice to keep works under their exclusive control -- if they were willing to pay enough to do so (and thereby compensate the public for the special privilege they would be asking to have extended to them.) And the purchase-into-the-public-domain option would prevent copyright holders from undervaluing works, but also assure that they were fairly -- at the value they themselves set on the work -- compensated for any work taken into the public domain early (short of whatever maximum limit is set on the duration of even paid copyrights.)

Re:OMG

[cpt kangarooski]

"To promote the Progress of Science and useful Arts". Getting the most into the public domain the fastest may or may not be the best way of doing that.

Well, just science, actually, which meant knowledge, back in the late 18th century when they wrote the Constitution. The useful arts are what patents are supposed to promote. (We have more vestiges of art meaning a technical skill: prior art, state of the art technology, a person having ordinary skill in the art, etc.)

Anyway, as it happens, getting the most into the public domain the fastest is basically exactly the best way to promote the progress of science. Consider a utopia of knowledge: Everyone who can create works, and is willing to create works, does so. These works may be instantly published to everyone else in the world, who may choose to enjoy or ignore those works as they see fit. Everyone has a universal library, containing all known published works. If one person enjoys a work, he might make some copies at trivial cost in order to give them to other people he knows who, he thinks, would also enjoy it. If an old work is discovered in some ancient ruin, copies are made and made available to everyone, so that the work is no longer rare, and no longer in danger of being destroyed and lost forever. If someone wants to create a work, they can do so, whether that work is original or derivative of something else; the creative impulse is never squashed or dismissed. Works might not all be good -- in fact, most will be lousy -- but that's true of anything.

That's the ideal world: One where public knowledge is preserved and made available to everyone for every purpose and at the least or zero cost. The reason we can't really have that is because we don't have the resources to afford it. Not everyone who wants to act can spend all their time at it without concern for basic necessities. Because our resources are limited, we don't get so many works created if authors can't make money derived from those works.

Now, sometimes they can -- Shakespeare had no copyrights as we know them, but became reasonably successful financially because he got a share of the box office from his own theater company, and invested wisely. He didn't get money from other actors staging his plays, but neither did he have to pay the people he copied from when he wrote them, nor pay other playwrights when he staged their plays. And, closer to home, I used to be a professional artist, and I made a comfortable living, but that was by selling my labor (which I still do, now that I'm a lawyer). Neither I, nor any of my clients, made money based on copyrights, and a total lack of copyrights would not have made us a penny poorer. Most fine artists don't rely on copyright to make a living, not that most artists of any sort make a living from their art anyway, even with copyrights.

So if works are most valuable to the public, and most promote the progress of knowledge if they are in the public domain -- free to acquire, share with others, base more works upon, etc. -- but we might be able to increase the number of works generally by granting copyrights -- making authorship more attractive financially, though other incentives exist independently of copyright -- then surely we only want to grant copyrights for as short a period as possible, with as few restrictions as possible, in order to get the most works in the public domain the fastest.

No copyright would get works in faster, but there'd be fewer of them. More than the ideal amount of copyright would not result in as many works (the financial incentive only goes so far, is iffy to begin with, and can result in authors engaging in anti-competitive behavior against one another, rather than compete fairly), and less freedom and utility for the public.

Still, if you have an idea that would result in a greater net public benefit than copyright could ever deliver -- the current system is a bad implementation, however -- feel free to tell us about it.

copying grants the right to profit from other's IP

[Anonymous Coward]

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.

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:Internet Archive

[plasticsquirrel]

Why not? Books automatically have their copyrights expire after a certain period. Why shouldn't unclaimed orphaned books become part of the public domain? For example, if a book is unclaimed and has been orphaned for five years, it should be in the public domain. This would be beneficial to everyone, giving the authors some fame and prestige, giving us some rare books otherwise unavailable, and not hurting any publishers who aren't making money from them anyways. It would be good for all of society.

The Google settlement is only good for Google, and those who don't mind asking Google if they can read books through a glass window. After all, Google will not allow anyone to download these books. Their job is to hoard information, and to make it available in a way that is convenient enough for individuals, but inconvenient enough that no one could download the data and compete with them. Lazy people think it's okay because it's better than the scraps we have otherwise, but giving one company control of these books is not a solution.

Re:copying grants the right to profit from other's

[Colz Grigor]

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.

Re:copying grants the right to profit from other's

[Kjella]

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...

Why can Google copy books they didn't buy?

[ortholattice]

Here is what I am confused about. The controversy seems to be about whether Google has the right to display excerpts from books they've copied, without permission from the copyright holder.

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.

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?

[QuantumG]

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)?

It didn't and that's why there's a class action lawsuit against Google... the problem is, the class and Google have already come to an agreement, but they need permission from the state to enact the settlement. See, the way class action lawsuits work is, if you show up a year after the lawsuit is settled you can say "hey, I want a piece of that!" and they'll give you some, assuming you can prove you're a member of the class. What you can't do is say "hey, I don't agree with that!" cause the case has already been settled. As such, the state has a responsibility to make sure the settlement is fair for those slack members of the class who haven't bothered to turn up to court yet.

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).