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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."
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.
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.
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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.
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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.
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).
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.
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.
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.
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DRM is the #1 cause of software failure today.
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"?
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?