Google Books: Scan First, Ask Questions Later

Posted by: Douglas MacMillan on November 14, 2009

In a revision to the Google Books Settlement filed in federal court late Friday night, Google and the Authors Guild made concessions to industry groups, regulators and others who have vocally opposed the plan. But the search giant refuses to budge on one of the agreement’s most controversial points.

So-called orphan works, millions of books for which copyright laws still apply but whose rights owner is unknown or cannot be located, will still be scanned and sold in an online registry. New revisions to the plan call for an independent trustee to collect revenues generated from orphan works for up to 10 years, or until the rights holders are found. After 10 years, that money will be donated towards the continued effort to seek out copyright owners.

In September, head of the US Copyright Office Marybeth Peters said Google’s initial “opt-out” proposal to scan orphan works before attempting to find rights owners amounted to a throwing out of “fundamental copyright principles.” Though the most recent revisions stipulate more rigorous steps for collecting and distributing money to authors and publishers, the proposed agreement is still opt-out, as Danny Sullivan pointed out in his blog Search Engine Land. Peters is still likely to object.

Other revisions which are likely to sway some critics include a new geographical limit to the the deal. Now, the Google Books Settlement applies only to U.S., Canada, U.K., and Australia. That will please the governments of France and Germany, who have objected to the plan.

In the next week, U.S. District Court Judge Denny Chin is expected to schedule a fairness hearing to hear arguments for and against the revised agreement. Expect to hear from groups like the Open Book Alliance, the coalition led by former Microsoft antitrust watchdog Gary Reback, which has already objected to the new agreement in a blog post.

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Reader Comments

James Pannozzi

November 14, 2009 03:35 PM

It seems like a spent a lifetime traveling to out of print and antiquarian books shops looking for this or that old book. Even when found, there was usually some large pricetag for something that almost nobody but I wanted to look at.

Then several years ago I discovered Google book search. For the first time in my life, I and other researchers and readers in various fields, can in a matter of minutes obtain and read difficult and/or otherwise impossible to find books. What an incredible boon to medicine, languages, sciences and untold other fields of research and interest!
This capability is but a fraction of what computer pioneer and researcher Ted Nelson dreamt up over 30 years ago and it is just now coming to be realized. Medical research that would have taken a decade is now telescoped into a matter of weeks or months, and another side effect of this easy availability is the appearance of new correlations and the identification of hitherto undiscovered trends whose implications will inevitably prove to be of major import. Many thanks to Google for identifying a long dreamt of need and for providing a timely and viable solution. We look forward to much more from Google, a company which does REAL INNOVATION instead of just talking about it.

Walter L Johnson

November 14, 2009 04:03 PM

The scanning of out of print books may seem innocent enough but here is what is wrong with it:

1) Most of what is out of print deserves to be out of print and search results pulling the information up will just complicate everyday research projects. It is a blessing only for historians.

2) Copyrights continue for something like 65 years past the death of the author, but effectively the Google proposal reduces that to 10 years by keeping any revenue earned after 10 years, which is I believe the usual renewal period.

3) Having the contents scanned radically reduces the resale value of all used books, and the amount is significant. Some business books that go in and out of fashion have used resale value of as much as $500 or more a copy when in fashion. It is impossible for any new copies not to devalue the existing copies, which also dilutes the value of a library's collection and may undermine financial support for all libraries.

4) Dead authors may not have wanted all their works to outlast them since it is likely most great authors had some really poor initial writing and many academics change positions on issues during their own lifetimes. They would not want in death to see their former position statements in books used against their final positions on grand issues like government economic intervention.

5) Works that were knowingly published with limited editions so they would return collector value will lose initial purchase value. Why buy a limited edition today if it will soon be an unlimited edition?

6) Opt-out in general should be outlawed. I can't possibly opt-out of every option that is ever in existence now and in the future, or I would.

7) The copyright ownership of some works is not exclusive.

8) Does mankind really want to preserve every substandard book every published? It seems like that would lower the quality of modern language by allowing slang from the ages to creep in to it and outdated ideas as well that have been proven totally wrong in science.

9) I would have no objections if this effort were opt-in and applied only to works published after a future date certain or if it were legislated.

10) I do question the economics of the Google book scanning project. I doubt it can ever recover its costs, and it will impose a high ongoing operational cost on Google shareholders just to maintain the files created. There is a limited demand for old writings, especially outside of universities.

11) Artists have shown broad opposition to doing the same thing with images of original art work that Google is proposing for written works, yet many books have illustrations that were done in anticipation of a finite number of copies sold.

12) Not every author or publisher is even a member of a group participating in the settlement talks. Having a few groups negotiate for everyone is like saying all doctors agree with the American Medical Association even though many are not members specifically because they disagree with positions the group has taken.

Karol

November 14, 2009 04:53 PM

Question for anyone who would know--I plan to buy a Toshiba mini computer and because of travel for long stays having a wy to read without luging many books would be a good thing. Will the mimnis allow that feature that Google is going to have? please email me if you have an answer. tx

Stephen Street

November 14, 2009 05:08 PM

...Many old books are not worth purchasing but have value for a one time perusal if only to become familiar with the author.
...The vocabulary used, in old books, has value simply because language is dynamic. The only way to become familiar with a culture is to understand the way the words were used in ages past.
...Ones opinion of the value of literature is never going to be shared by everyone. By keeping as much of old writings as possible no single person or group is allowed to become the world's censor.
...The great library at Alexandria was, supposedly, burnt by Christian fanatics.
That group nor any other has the right to repeat that terrible offense whether on paper or in digital form.

Jennifer West

November 14, 2009 05:18 PM

The 'scan first, ask questions later' approach is like 'take photographs first, see if anyone objects later' as far as Street View is concerned. Does anyone really want to have a photograph of their house published on the internet, without prior approval? The problem is Google's approach.

Michael

November 14, 2009 05:26 PM

In reply:
1. Typical free market junk. You imply that only books that are bought and sold in your highly unfree markets have value. No book "deserves" to go out of print.

2. Copyrights durations were extended after the lobbying efforts of the Disney company whose own works were about to go public. Interesting that a company benefiting from the short copyright span of the stories of the Brother's Grimm, would lobby to change the rules that they formerly benefited from. Google does not profit after 10 years, the money "donated towards the continued effort to seek out copyright owners." Or can't you read?
3. Authors don't benefit from resale of their works. Who are you working for now? The book resellers? To hell with your market economy. Information needs to be free and available. The original markets didn't even want us to have access to the bible.
4. Dead authors get to rest with everything they've published. Who is going to sift through what should or shouldn't remain published, you?
5. Limited editions is just a marketing ploy. Good by marketing ploy.
6. I'd like to "opt out" of your future posts.
7. And...?
8. Yes. And I wish they had. We'd know a lot more about ancient history, had they.
9. Ah the dilemma of the free marketeer who needs legislation and regulation to hold his position.
10. You question the Google's economic acumen. Ripe.
11. Anticipation is one thing, copyright law is another. "Artists" are not a group and have never organized to show broad opposition to anything. Your statement is a bold faced lie.
12. Yet legislation passes every day even though all interested parties are not at the table. Where are your tears for the public? There is the self interest of the corporations, and the interest of the public.
13. That was easy.

Pete

November 14, 2009 05:41 PM

Mr. Johnson,

Your points are a fabulous display of conjecture and argument by fallacy. Qualifiers such as "most" and "may not have" indicate your points are factually baseless and reflect your opinion.

Thank you to Google and to any that support or faciliate the spread of knowledge.

Marji Hazen

November 14, 2009 05:56 PM

Why should scanning an e-version of a rare book reduce the value of the original print copy? Looks like apples and oranges to me. Indeed, an e-version will allow readers to become aware of literary treasures heretofore unknown to them and inspire one or two to spend what it takes to own such a treasure. Scanning out-of-print books is a much better fate for the authors than having their remaindered books ground into meal and recycled into the paper industry. In all my long life, I have seen only one out-of-print non-textbook volume that deserved to be out of print. We used to be able to go to secondhand bookstores and purchase wonderful old books for next to nothing. I acquired a good half of my literary education in that way. Recently a book dealer told me that he gets want lists from dealers who are buying up old books and destroying them to increase the value of one or two copies they own or to prevent other reprint houses from having access to original texts that are out of print or in the public domain. If the dollar is so all-important to current booksellers that they would actually destroy perfectly good books to protect their own interests, then, thank God for Google and others who are scanning and then asking questions.

guess who

November 14, 2009 06:26 PM

If I did what google is doing, The Judge would call it stealing.

Ryan McSwain

November 14, 2009 06:31 PM

In my opinion, I don't see anything more than a superficial difference between what Google would like to do and what libraries have done for thousands of years: make books available for use. Do libraries hurt the used book market? Do they rob the authors and illustrators?

And if no one checks up on the status of their book for over a decade, I think it's safe to say they could care less.

Give Google some slack, they're doing this for us.

Matt Bianco

November 14, 2009 06:41 PM

As much as we love to love Google for not being Microsoft, they are now that and more.

Google has brilliantly managed to position itself to dominate many hours of our day. For many of its products it has succeeded to dominate. Does anyone sill "Map Quest", does anyone remember Alta Vista?

I find it amazing that craiglist and wikipedia have managed to stay independent from Google's claws.

Don't be fooled by funny and changing graphics of the search home-page. For all the good they have done, they are inches away from being Big Brother. They don't want to torture and control your thoughts, but they want to control all the content that will shape your thoughts.

computerpopcorn

November 14, 2009 06:43 PM

Walt,

Derrida is LAUGHING...as are Foucault...Williams...Wittgenstein...

Please feel free to add more...

Ken Erickson

November 14, 2009 06:49 PM

I would like to have a Gutenberg Bible. I would like to have medical books when I sail around the world.

Ron

November 14, 2009 06:54 PM

This is the first I've heard of this project by Google. It may have all of the societal benefits that you all mention above, but who is Google to decide that it can just violate someones copyright in their work? If I just started scanning books and posting them on my own website the FBI would track me down and the US Attorney would, well, throw the book at me :-) Is it just because the book is old or out of print that makes a difference? Seems to me that Google can't take the position that the copyrights have no value and at the same time offer the works online and say that the project has merit.

Cathy

November 14, 2009 07:00 PM

I hope that next Google will do a "Google Software" site where I can go and download old copies of software no longer around. Perhaps they could have Windows XP available and an old version of Miscrosoft Word or Corel Wordperfect. Of course after delivering this to me, I hope that Google will allow Microsoft and Corel to "opt out".

leonard waks

November 14, 2009 07:32 PM

Walter L. Johnson is, of course, entitled to his views. And isn't it wonderful that he can share them and we can all reflect on them for free? And isn't it even more wonderful that he can do this and we can do this regardless of the "value" of those views?

Copyright was intended to balance the public's need and desire to know against the need to feed the mouths and pockets of creators of knowledge and information for a limited period of time.

The voracious greed of the publishers, however, has extended copyright indefinitely and in ways that have absolutely no benefit for most creators of knowledge and information.

Were it not for this plainly exposed greed the public might be more sympathetic with the publishers in their battle against Google. As it is, all we have is Google; our legislators have all been swamped by bribes and have destroyed the balanced copyright regime.

In an information age we are all involves in searching and aggregating and re-arranging information and creating new knowledge products. In this process Mr. Johnson could not be more wrong in thinking a market is the best means for determining what knowledge and information "deserves" to remain available. Ever cheapening storage costs mean that all or most of it can stay around in searchable form forever.

Google may not be the best or most appropriate agency for this task, and we all worry about its accumulating information power.

But it is so welcome to have the vast aggregation of knowledge and information available to us. And that includes Mr Johnson's comments, which will be preserved forever on the Internet archive.

Sam

November 14, 2009 08:00 PM

Can I scan a book....publish it for all to see ...make money out of it..and qualify saying...if you believe this is infringing your copyrights please consult our legal department. Frivoulous claims will be prosecuted. (you have simialr statement on youtube). Google is a corporation. Corporation get merged change hands, policies over time. Whatever happened to the lofty ideals of intellectual properties of small authors against big corporations.

Conrad

November 14, 2009 08:14 PM

In a free country, people are generally free to do whatever they want with their scanners, printing presses, and web sites. The U.S. Constitution carves out an exception to this freedom by allowing Congress to pass laws: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Note the phrases "to promote progress" and "for limited times". Ideas and words are not owned; rather inventors and authors get a limited time monopoly period in which they can recoup their investment and profit, after which the knowledge becomes freely available to all. It's actually a pretty good system.

What Google is doing fits into this framework just fine. Authors are no longer profiting from out-of-print books so they are not harmed, yet Google is making sure that this information is not lost from the archives of history.

In the U.S. copyright infringement is generally a civil offense rather than a criminal offense, which means that a harmed party can sue for financial damages. So a copyright holder who spots his or her book on Google can always sue Google for copyright infringement, but in doing so he or she will have to prove damages. This is as it should be; if Google's acts don't damage any particular author, then Google has done nothing wrong, and information and knowledge have been preserved.

K from Seattle

November 14, 2009 08:34 PM

I wonder if of the critics here on this blog have ever taken the time to scan an entire rare book from cover to cover, then look at it in the new form, on a large flat panel or hand-held device?

Also I wonder if any of the critics against book scanning have ever discovered possibly on of the last books in good condition of its kind, and realize that the time capsule and treasure that it is should be shared with someone other than yourself?

Also, I wonder if any of the critics here, have any imagination at all. Good day.

Michael Jahn

November 14, 2009 08:43 PM

Wow. I still do not see how Google is a villain that did some horrible harm. The one amazing thing it did was enable me to FIND a book on Trachtenberg - a math system that I used when i was young - i didn't even remember how to spell it, but Google Books found it for me - and when it found that it was available at Abe Books and Amazon.

About a week ago, I simply wanted to see if their was anything on my grandfather friedrich jahn - again, total wow factor - there were books i could download and purchase - this one was written in 1873 and had photos !

History of the German struggle for liberty, Volume 3 - By Poultney Bigelow

how can this possibly be bad ?

Larry

November 14, 2009 08:50 PM

Books are dumb. Soon all knowledge will be available in Tweet form. If it takes more than 140 characters to say it, it must not be worth knowing.

Observer

November 14, 2009 09:21 PM

At the beginning of the republic, copyrights lasted twenty years. Unfortunately, this was extended to fifty years, and later Disney and others stage grand theft of the proper assets of the Public Domain by purchasing legislation from Congress to extend this time even further. We should return to the original twenty year term and be done with it. Twenty years is enough for patents, and it is enough for copyrights.

mauiman

November 14, 2009 09:25 PM

"Is it just because the book is old or out of print that makes a difference?"

Well not "just" - but if the author or his estate can't be found I think it does make a difference. Have they been earning income from the work? No. Nor are they likely too. Maybe with the Google project they stand a chance of income. We stand a chance of reading them.

What happens to abandoned vehicles or buildings? If the owner can't be found, they are scrapped or become public domain. Old copyrights are not getting in the way physically, but they may be getting in the way intellectually.

I say bravo for the Project. It's something I've dreamed of since 1994. Glad to see it happen.

john

November 14, 2009 09:25 PM

This is a fantastic idea. Props to google.........again!

Rk

November 14, 2009 09:44 PM

Re: W. L. Johnson's comment:
I disagree with your well worded points for these reasons:
1. Simply because you don't like out of print books is no reason not to have them available. Digitally, they take up no space. If Google is willing to scan them, let them. The books may be interesting to some, and can provide historically relevant information. The old saying "if we do not remember the past, we are doomed to repeat it."
2. Can't argue with your no.2 point - Google should not be able to keep any profits on material with extant copyrights, even if they cannot find the copyright owner. Either they should make a serious effort to locate the person or entity, or the money could be held in trust - perhaps used to locate such copyright owners.
3. Your point 3 is valid, but businesses change over time. No one hires scribes now en masse because we have the printing press. Printed works may go out of fashion - and if they do, we will lose that wonderful experience of holding, smelling, and seeing pages but economically, it will be for the best.
4. If deceased authors don't want their works read, they should say so in their wills. Perhaps I can rephrase your point to make it a debate: should we make available material that creators would rather have buried? The book, "A Clockwork Orange" is a book whose writer wishes banned - he believes it sparks violence. It's not banned in the US, you can get a hold of it, and you can watch the movie.
5. I believe you have a point here - either limited edition books should be allowed to prevent their works from being digitalized, they could enjoy a limited edition digital version, or we should rethink why booksellers would print "limited edition" volumes. Perhaps limited edition volumes should use expensive materials - like gold embossed leather covers - that cannot be reproduced digitally. In any case, I believe limited edition books of fine quality will remain collector's items just like original paintings do - though prints may abound.
6. Your point 6 is totally valid. The "opt-out" business model is a scam. We need to create laws to protect people, in this case authors, so that they can only "opt-in."
7. Then the specific cases will have to be worked out the same as any other contract.
8. I find your point here very weak. Who judges which books are good enough to be digitalized and which should be discarded? No, let the consumer judge - if they want to read slang, let them. Languages are fluid, they change. We no longer speak Shakespeare's language and most of us can barely read it, and while some culture has been lost, we still have a vibrant, creative culture. Your children will not speak like you, and there is nothing you can do about it - English will change.
9. My points above address this one. I agree with "opt-in" but disagree with "after a certain date." Old works should be available for free easily - that will remove the parasites in publishing that charge for works done before the 1900's.
10. This point is entirely Google's problem. If you are a Google shareholder, bring it up at the next meeting. Ask what their business model is to recoup these costs. Since they are pursuing this idea to scan books and since they are, so far, a successful company, I imagine they have a plan to profit from this enterprise.
11. I read your sentence here and think "and?" Should I draw my own conclusions from what you've written? Google can either a) not scan these books, b) use a lower quality resolution, c) come to some agreement with the creators, and d) compensate the creators fairly. There is a card game called "Magic the Gathering" that requires cards to play it. The cards are expensive, however they publish these cards on the Internet - anyone could cut and paste them onto a printed copy, yet very few people do so - "Magic" makes a massive profit despite their images being freely available, so I find point #11 not compelling.
12. You are absolutely correct here and I believe this point can be further drawn out to illuminate the dangers of monopoly control over media. Independent authors and publishing companies deserve to have their say in how their works are distributed. Either they can opt in to a ready made contract, or they should be able to negotiate their own contract with the Google library service.

jq johnson

November 14, 2009 09:52 PM

All this talk about protecting the owners (who are in some but far from all cases the authors) of orphan works is a canard. They're gone, or at least have decided not to bother to take commercial advantage of their works. Why shouldn't the works be read by people who want to read them? Why shouldn't they be part of our collective heritage?

Copyright law in the US is fundamentally broken. Its constitutional basis is "to promote the progress of science" but in fact it has become a way to create a new kind of property -- "intellectual" property -- despite the fact that knowledge is usually something that we can use usufruct -- my use of it does not diminish its value. Unlike European law our US copyright has essentially no "moral rights" for balance, and only a weak public good provision (fair use).

The value of the google book settlement is that it may make millions of works available to the public -- including a 3rd world public and the common-person public who could never afford the high cost of travelling to visit the Library of Congress or the nearest Harvard -- that weren't but should have been. That is, it may offer an alternative to the over-commercialization of copyrighted books. The risk of the google book settlement is that it may further lock up these works with proprietary/commercial keys (held by a new monopolist).

The right solution is to go back to copyright law as it existed in 1975, to the days when "orphan works" became the property of the public after a few decades, and the day when there was a reasonable balance between commercial and societal interest. Given that that's not politically feasible, the google book settlement doesn't seem like a bad alternative to me.

Prof Mk

November 14, 2009 11:04 PM

Think 100-200 years from now. Not when Google eventually controls access to all information, but another entity can gain control and access. The written word en masse will be able to be edited at will. And since this digital well will be the largest source, it can be taken by the world as truth. Google's plan sounds like they want dominate the flow of all information, digitally (which already is the most efficient channel). They want to categorize and make available all information - from the written word, to mapping, to facts, to financial data. Presumably because they then can profit from the gatekeeping and analytics. But controlling, or even having such unlimited access to all this information flow might be incredibly dangerous. As innocent and profit-minded as Google's plan is, as beneficial as this would all be in our day to day life, I still worry. Without sounding like a conspiracy theorist - I think the monopolizing of information could be very bad for society in the long term. There should be long range think tank strategizing about this before so much is fully opened up and 'set free.'

George Snyder

November 14, 2009 11:46 PM

The new, revised settlement still doesn't really address the fact that business people (Google and publishers) are attempting to legislate the copyright laws without the involvement of Congress and the will of the people. After all, why should the public (the people) be forced to pay copyright fees for orphan books to authors and publishers--and foremost, Google--that are not their original creators?!

The intent of the US Constitution on the copyright and patent protection is clear: it is to protect the financial interest of the creator for a limited time. When the creator no longer benefits financially, the copyright protection is superfluous, and it does not serve the interest of the public.

What Google and publishers are trying to do is to stake a claim to the abandoned properties--the orphan books--as exclusively their own at the expense of the public while expecting the public to continue to pay for the cost of copyright enforcement on what should have been declared as public domain properties.

The best way to handle the issue of orphan books is for Congress to pass a new copyright law stipulating mandatory registration of copyrighted books and annual renewal of the registration, with a small annual fee per publication, by the original copyright holders. The book that fails to be registered within a specified period or fails to be renewed annually will then be considered as in the public domain for non-commercial online distribution by non-profit organizations.

Once the comprehensive copyright registry is established by the US patent Office under the new law, it would be easy for anyone to determine which book is still under copyright protection. With such information readily available, any non-profit public institution, such as public libraries, can undertake book scanning projects with their volunteers to enrich the nation's literary heritage (a master digital copy for each scanned book should be uploaded to the Library of Congress for universal access).

This way the millions of books that Google scanned are not going to be used as a bargaining chip to change the copyright law by Google and publishing industry through a business deal, known as the Google Books Settlement, to suit their financial interests in the name of public interest.

J Marais

November 15, 2009 12:06 AM

Information democracy is the future; transparency and openness is inevitable. The innovativeness of Google lies in understanding this and serving the 'need' by organising the world's information. There are new markets out there; nothing will protect the old-world view of old-style markets in the long run.
Go, Google, go!

Author M

November 15, 2009 12:58 AM

As an author myself, I sympathize with and understand readers who would like books to be digitized and more readily available. I do a lot of research for my books, and I've found some incredibly helpful information through Google Books already.

However, because I *am* an author (I write novels), I also see how devastating projects like this can be for those of us writing the books.

As others have said, the "opt-out" part of the settlement is insulting. It's like having someone say "I now have legal right to steal from you, unless you opt-out of my doing so." And furthermore, it's also saying, "And if you don't opt-out, and I steal from you in the future, you can't complain about it. And by the way, here's $5 to compensate you for what I stole." (In the case of the settlement, an author whose book was digitized without authorization can expect to receive about a whole $60 per book.)

Intellectual property IS important. For those of us who write fiction, poetry, or creative non-fiction, it's also a matter of art. There is a tremendous amount of time, skill, and effort that goes into writing a book. It is an art form, just like visual art or performing art. No artist wants to have his or her work reproduced and distributed without consent--and yet this is something that artists of all sorts fight against constantly.

It's discouraging to see that so many of you readers believe that somehow this incredible effort and work should be made freely available with or without my consent as the creator of the work. The Google Books settlement does not just pertain to "out of print" or antique books. It affects in-print, commercially available books as well.

We need to continually push for a balance between making books conveniently available (and I'm not opposed to digitizing books) and still respecting the author/artist who writes those books. I think the concept of a digital library is not a bad idea, but the way Google is trying to do it is exploitative and unethical.

If we want to continue to have high-quality books--whether non-fiction or fiction, research or creative--writers like me need the reading public to respect our work and partner with us to make sure that writing books remains a viable way to spend our time.

Kay

November 15, 2009 01:11 AM

Google has a history of abuseing privacy and peoples rights. I have to agree that you need to look at google street view as an example. They drove down our street with no warning or signs in the middle of a beautiful summer day. Took pictures of all the neighborhood children playing in their own yards on private property. These pictures included my daughter who is currently protected by restraining orders and is never allowed to have her picture displayed in any media for her safety. Dispite repeated complaints that this picture is a safety risk for my daughter they refuse to remove it or at least fuzz out the faces of children.

Google does not care about people they care about money. They will sell your private information to the highest bidder without the slightest hesitation.

NO one has the right to violate copy rights PERIOD. They are there to protect intellectual property. With this allowed they will just call every book an orphan and not bother to look and unless the author steps forword they will make money.

For those people looking for a free ride in the name of academics. What do you think will happen to future academics if there is no profit to be made in publishing an academic work. Lets face it most Academics will have to find a job that pays, and that will not leave time for writing books.

Geoffrey Meyer-van Voorthuijsen

November 15, 2009 02:25 AM

I believe this settlement should be rejected. All of the benefits of this settlement could be easily had if we demanded that congress restored copyright law to its original puropse:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Authors do not own their works. They only retain copyright, and this right is not an inherent and inalienable right like say life, liberty or the pursuit of happiness.

How about a compromise? If after 10 years an author is not utilizing his right (by that I mean actually and actively making copies or having them made by others), he or she should lose copyright altogether. After all a work that is not currently available can hardly be considered to be making a current contribution to "the Progress of Science and useful Arts". To borrow a phrase from academics: publish or perish. Then anyone could freely do what Google is currently trying negotiate the right to do.

The orphaned works idea is a good one but it should be codified in law. Certainly no court should accept that any private association like the Authors Guild has any standing to negotiate on behalf of anybody except its own members. There really shouldn't even be any negotiations over copyright. We the people should simply demand that our legislators follow the letter and the spirit of the copyright clause.

Ted

November 15, 2009 05:07 AM

Well, there goes the rest of the last remaining used book stores in my town! No doubt they'll sell their inventory to Schwabe Books by the pound for mere pennies, live on that money for a while, watch their storefront be turned into the clichéd Starbucks, and then beg change outside of it from those jackasses sitting inside at tables on their laptops reading free digital copies of the once valuable books formerly available for sale in the same space. Hurray for progress, everybody wins!

cand.mag.

November 15, 2009 06:41 AM

Sorry.. I don’t know if it because allot of Americans are incredible naive, or if its because on a general scale American research institutions, and libraries are heavily dependent on external funding. (i suspect its the latter)

I really don’t mean to be condescending, but this is catastrophic.

Most European university /research libraries have refuses to work with Google, and started a non profit body “Europeana” (europeana.eu) . Why?

Because of the lack of rights…

The participating libraries gets a free copy of the work, that they allow Google to scan, but the libraries are NOT allowed to give public access to the works via their own homepages, that right only Google retains.

A lot of European libraries have been collecting and been giving public access to books for 600 years or more. Giving up that right would never be accepted in Europe, because we have funded these collections and guarded them over the centuries, should we just close everything down, because we enter the digital age? And someone offers us a supposedly free service,- And hand it over?

Google is a private enterprise, not a pro bono organization. What happens with this information if Google cracks down, or gets sold to someone else? There are no guaranties that this will be freely available 30 years from now. They might charge, plaster it with commercials.. who knows.. You Americans are selling your past, for a quick free lunch. You really should wake up.. and see things in a larger perspective.

Free information? I dont think so…

THink

November 15, 2009 09:11 AM

Prof Mk - I agree with your concept, but I was thinking about it from the opposite angle. I think with all books digitized it would be MORE difficult for 1 person or group to take control of it. It is easy to destroy a book or a printing press - it is far more difficult to erase mirrored images of websites, stored for the ages. Think of it as a BACKUP copy of all this information and knowledge. It may never be the primary source, but it could come in handy if the last original is destroyed.

random.user

November 15, 2009 11:18 AM

The copyright for a million years and lock away knowledge style will and should be phased out. Google is doing nothing wrong, book publishers should embrace this instead of running from it. They have a choice, live in the dark ages or welcome the future.

Ho Ho

November 15, 2009 01:11 PM

Okay, here is a scenario. If I register an unregistered domain name like, google.net, and I give 10 minutes Google an option to opt-out. If not, I declare that domain is legally mine. In other words, Google can't not sue me for trademark infringement. I do not see Google's argument. Google is like a 30 years old man who talks like a 10 years old kid -- steal first and bully everyone.

Don

November 15, 2009 01:36 PM

Walter L. Johnson seems to make the most cogent argument against Google's plan but seems to be as ignorant of how to use the Internet and World-Wide Web to market intellectual property as the RIAA and its members. Rather than reduce the market for rare books the Google project will certainly INCREASE the market for rare books by making more people aware of them. Economic theorists probably don't listen to the Grateful Dead but the Dead's policy towards people taping concerts was counter-intuitively brillian: anyone can tape a concert and trade tapes as long as they don't try to profit from it (at least, that's my understanding). The result: a large number of low-quality audio recordings online. The Dead can see which are the most popular and make high-quality recordings available for profit and the people who like the low-quality enough will buy the high-quality version.

For out-of-print books there is no market because no publisher will publicize it. Google is offering free exposure that may end up generating new demand that would not have existed without it. Who can predict? It seems crazy to say "Stop this project because it's going to hurt rights holders" when most of the evidence (including the research that shows that people who download songs illegally spend more on legal recordings than people who don't - see report at http://demos.co.uk/files/DemosMusicsurvey.ppt) would indicate that the larger the audience you can reach the larger your potential market. I can't think of anyone in marketing who would choose a smaller market over a larger market if the cost was the same. And here Google is bearing the costs so the cost to the rights-holder is zero.

Tom

November 16, 2009 02:05 AM

When you don't go through proper channels and don't respect copyright laws; nevertheless copy the material,
you have committed copyright infringement.
That is theft.

An Affected Author

November 16, 2009 08:56 AM

Nobody seems to be thinking of the writers of those books, many still living, and STILL IN PRINT. They own the rights to determine what happens to material that -- NOT the publishers. And yet it's all about "corporations versus publishers" and the writers are being told "take what scraps are left over, as we dole them out, or stand in the cold."

It's all about corporate greed drowning out the creator's voice, end of story. The Authors' Guild speaks only for its members -- and yet we who do not belong/did not authorize any such negotiations are being forced to abide by what it negotiated in bad faith, or be left out entirely, and have our work taken anyway.

How any working person can say that this is acceptable boggles the mind. I suspect they might feel differently if it was control and payment of their work being stripped from them.

Theo Brinkman

November 16, 2009 11:59 AM

@Walter L Johnson
1) Most of what is out of print was first printed 2 or more years ago. Only a very small percentage of books ever get a second printing because it's not considered economically viable.

2) There *is* no renewal period for copyright. There used to be, but that was back when copyright lasted a sensible 14 years (with an optional extension of another 14).

3) Copyright was never intended to protect the resale value of used books. Having more books available at a lower cost can only *help* libraries which are chronically under-funded. Even disregarding that, those books with $500 price tags are only going to sell to a collector for that much. A collector isn't going to even consider the electronic version, so the price isn't likely to fall terribly far.

4) If an author doesn't want their works to outlast them, they shouldn't have published it in the first place. Part of the deal with copyright is that you get a temporary monopoly on publishing the work *in exchange* for the work rising into the public domain after a limited time. Once you've benefitted from copyright, you don't get to choose whether or not the rest of history gets to benefit from the public domain.

5) Covered that in my response to #3. Collectors buy limited editions. They don't buy electronic copies of things because the electronic copies don't have collectible value. Do you really think there's no difference between the printed version of the work and the electronic version?

6) Opt-out is the only sensible option when the owner of a copyright can't be found. That's a flaw with the no-registration-needed version of copyright law we've got these days.

7) True. And that fact has no bearing on anything being debated here.

8) Yes. If you 'forget' those outdated ideas that have been proven totally wrong in science, someone is going to bring it back up later because they had no way to know it had even been thought about.

9) Great, you want an opt-in effort for works whose authors cannot be located? Congratulations, you'll have an effort where nothing gets saved because those people don't *care* enough about those works to be available for queries about them in the first place. That's the status quo that is leading to many works being lost forever because the limited numbers of copies available are in horrific shape, and won't survive another 20 years. There's already hundreds of books published before WwII which have less than a dozen known copies left in existance. Do you suppose that because they aren't being constantly reprinted they have no cultural (or other) value whatsoever?

10) There's limited demand fro old writings because of the effort it takes to *locate* copies of them. Believe me, I've gone through the effort on more than one occasion, and even with inter-library loans I've only *succeeded* twice. Besides, doesn't this contradict the point you made in #3? If there's limited demand, why are prices so high? Obviously, Google sees a value in doing this. If their shareholders want to complain, they can. (I've seen no indication that they plan to.)

11) I can't say I've seen anything about this regarding other forms of art. Again, though, I don't see what the intent of doing a limited edition has to do with ensuring that the work is still available after copyright has expired.

12) That's a valid point. That's why the system has the opt-out option. If you care enough about your works to pay attention to how they are being used, you can go ahead and tell them that you *don't* want your work to survive. Congratulations. If you don't care enough about your works to pay attention, what have you lost?

Jerome Garchik

November 16, 2009 01:21 PM

Cand.mag makes a very good point about public library access. This project was started with the Stanford U Library, but Stanford is a big shareholder in Google.The other cooperating university libraries, Cal, Iowa, Michigan,and several others have alot to answer for, as Cand.mag points out. For his reasons and others, Harvard has stood aside and opposed the Google project. But the Oxford U library and Press supports Google in this. Even if the present version of the Google Book Settlement is approved, it will still be much criticized for years to come.

Charles

November 16, 2009 01:28 PM

It was asked above if anyone has digitized an out-of-print book. I have done so often at my own expense for my own research purposes, and the quality and utility are far superior to what Google provides. Google books' downloadable .pdf's are not searchable, they are 'image only' scans. Relevant passages to be quoted and cited can not be highlighted and copied. Any searching must be done on text versions which Google retains but such text versions are flawed and Google's filters distort what content is found, often irrelevant in fact. Google's 'vision', such as it is, is nothing like what technology and non-profit organizations are capable of providing. Compare the diversity of formats from the Internet Archive (usually digitized by MSN) against Google books. While Google books is better than literally nothing, it is marginally only just that, but further impairs readers, libraries and other groups from advancing lawful digitization and access beyond what serves Google's purposes.

As noted above, Google would restrict the rights of contributing libraries to give public access to the library's holdings. This is why Europeana and many European libraries (which have many far older holdings than do American libraries) refuse to work with Google books. Google would prevent contributing libraries from redistributing digitized works.

Google filters distort what is available, what content is relevant to a search. If Google filters out (de-ranks or low-ranks) a work you know a library must have, but libraries are precluded by agreement with Google from providing such digitized content, then for all practical purposes, Google has denied you access to what Google puports is its 'boon' to mankind. And Google is constantly tweaking its filters in increasinlgy irrelevant attempts to guess at what you 'really wanted to read'. Anyone who has attempted to interact with Google about their search results knows how futile it is to submit feedback (assuming you can find the feedback link) let alone correct them.

This agreement needs to be rejected.

Control should remain with lending/contributing libraries. If Google can make a profit digitizing a library's holdings on behalf of the library, while the library controls access to its digital holdings, fine. Regardless other organizations like the Internet Archive and Europeana should be free to digitize whatever libraries are willing to contribute, without any restrictions by Google, and without unfair competitive advantage from Google.

If this means not all books get digitized, then so be it. They are still available to be borrowed, and digitized or photocopied (in whole or in part) for personal use by those who have such interest in a particular work, without violating copyrights. If a library is reluctant to loan its hardcopy, then it can make a digital version itself (they do this now with periodicals, or subcontract to a digitizing agent (e.g. Google, MSN, Europeana), and then provide the borrower with the digital copy.

What is not acceptable, under any terms, is for Google (or any private, for-profit oganization) to gain control over access to the information, and circumvent existing copyright law and otherwise obstruct competitive improvements to such access.

Robert K

November 16, 2009 02:40 PM

Gary Reback deleted my comment to his blog post.

1. Essentially I've seen google books become a much better catalog of books to search when I want to find something at the library. Therefore but for GB I would not have read the book anyways because I would never have found it searching by author or title, etc. in a library catalog at the library. Librarians use the exact same search and are worse than I.

2. The open alliance wants more "competition" and the "public good" i.e. more money for digital books. They're just as silly as when a video clip on youtube gets 30 million views and the creator wants $30 million dollars. A view does not equal a purchased book. Plenty of people browse newsstands and bookstores without buying.

ACLU of Northern California

November 17, 2009 07:04 PM

Privacy was left out of the deal: http://www.aclunc.org/issues/technology/blog/amended_google_book_settlement_doesn%27t_deal_with_privacy_problems.shtml

Ron

November 18, 2009 04:42 AM

I think everyone in favor of this is missing the point. It doesn't matter whether it is "good for society" or "good for the author", etc. It is against the law. Who cares whether it is civil or criminal law? Who cares whether the good of allowing Google to break the law outweighs the bad? If this is a good thing, change the law and let everyone do it. If Google were some non-profit University or quasi-public entity, even then I would be against it for that reason. However, Google getting to keep a proprietary interest in the scanned image that I cannot just take and post on my own web page. And by Google's reasoning, why should I not be able to do that? Two digital copies are better than one, right? Maybe people like looking at Google's ads or maybe they just don't Google to know what they are interested in reading. My website would be a good alternative. The value of a scanned book has nothing to do with the argument. What makes Google so special that it can steal, keep for itself and profit by what it illegally took, and then offer to make amends later? Perhaps we should look to the European model mentioned above. Something like this should not be in the hands of a private corporation. We need jobs right now. Perhaps the law can be changed to reflect what you all want, free old books online, and only then a non-profit organization can be set up and perhaps funded by Google. In exchange they might be able to have exclusive rights for a few years, and then those scanned images are in the public domain. THAT would be fair and legal.

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