Wed

Sep 21
2005

Tim O'Reilly

Tim O'Reilly

Author's Guild Suit, and Google's Response: My Thoughts

The net is buzzing with the news that the Author's Guild has sued Google over its Google Library project. As you know if you read my previous post on the subject, I'm with Google.
 

I found the following publisher quote in a Technology Review article to be particularly to the point:

Publishers shouldn't have to bear the burden of record-keeping, agreed Sanfilippo, the Penn State press's marketing and sales director. ""We're not aware of everything we've published," Sanfilippo said. "Back in the 50s, 60s and 70s, there were no electronic files for those books."
That's precisely why Google's opt-out position is exactly the right one. If we were to wait for publishers to opt in, only current, in print works would get into the index. With opt out, the interests of the public, the authors, and the publishers are all protected. The public gets an amazing utility, the ability to find which books contain the desired information as easily as they can now find web content; readers, authors and publishers all get a windfall as search helps people find books that are currently completely ignored by both publishers and retailers. And if some forgotten gem gets discovered, and the copyright holder isn't convinced that Google Print's revelation of the book is enough reason to keep it in the index, and they want to monetize it in some other way, they can opt out! What more can you ask for?
 

I do think that a lot of the resistance from publishers has to do with the fear of ultimately being disintermediated by Google. And it's a legitimate fear. The publishers who don't embrace the net will be swept away by it, while those who do will surf the wave to new excitement. Print-bound intermediaries will go away, but they will be replaced by new delivery-mechanism-agnostic intermediaries and business models. The role of the intermediary will remain because it's driven by the law of large numbers. (See my essay, Piracy is Progressive Taxation.) The resistance from authors, on the other hand, can only come from ignorance about the nature of the program. Every author should be sure to read Google's response to the suit

Fred von Lohman of EFF summarizes the legal issues and points to a legal paper on the subject. Seems to me that not only common sense, but the law, is likely on Google's side.

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Comments: 17

  Jose Luis Hurtado [09.21.05 10:25 AM]

Tim,

I fully agree with the need to make books and knowledge widespread in the world.

I think authors should be grateful to Google for they will benefit the most from this initiative. Specially since out of print books or hidden gems might come out of a search term using Google Print initiative.

Publishers however should be worried, the next logical step for Google would be to become the Earth's biggest bookstore. What would stop them from taking on Amazon? Technically nothing, financially nothing, the only delay would be time... the time needed to build the thing and the values of the company.

One thing does worry me. Are we witnessing the birth of a new Microsoft? What is Google's strategic long-term goal? If Google's goal is to make knowledge available for everyone, then clearly they mean no evil. But if their goal is to make more and more money period, then truly their motto is impossible to uphold. Unlimited money is many times opposed to ethics.

For what is worth, Google has shown until today, they are not an evil company, but their future actions will show us all, who they really are.

One final thing, your link in the article is not working, I am referring to your essay on Piracy as progressive taxation.

Best Regards,

Jose Luis Hurtado
jlhurtado at trumpetcom dot com

I

  Mike Perry [09.21.05 08:27 PM]

"That's precisely why Google's opt-out position is exactly the right one. If we were to wait for publishers to opt in, only current, in print works would get into the index."

No, no, no. Google can do what everyone else does when a use isn't covered by fair use. It's quite simple. They have the book, they can ask its publisher for permission to index and display that specific book. Yes, that's a bit more trouble, but it's what authors far poorer than Google have always had to do for any quotation that's more than modest. Compare that to Google's arrogance in publishing an entire book in substantial chunks for each Internet user on the planet without so much as a "by your leave."

Also, keep in mind that the value of what Google will display--portions of a book--varies enormously. Reference works are not typically sold to people who're going to read them cover to cover not missing a word. They're sold to people who may never use more than 1-2% of the book. With Google offering 20% of the book for free, there's no incentive for anyone to buy the book. 20% of the latest Clancey novel is worthless. 20% of a pricey business, legal or medical reference work is all anyone needs. Anyone who publishes such a reference, in print or online, will be getting robbed of all the value they have created at great expense.

Publishers of such books should not have to go to Google and a thousand other websites that might pop up imitating Google and force every one of them not to carry the book. Remember, if Google gets away with "opt out," then anyone else can have the same policy and most of them won't attract the same visibility that Google gets. Notice too how Google is assuming they can do something that, if applied to anyone with a web site, would lead to disaster.

Keep in mind what is happening. Google has grown rich indexing other people's online intellectual property. Now they want to grow richer still with printed intellectual property. It's a bit like Microsoft using its OS dominance to take over the market for Office software. Their attitude drips with: "We're big, you're little, you can't beat us. We play by our own rules and ignore the law."

Don't forget they're not doing this out of the kindness of their heart. Alongside the text from other people's books, there'll be ads that profit Google. By not telling authors and publishers, they won't have to pay the slice of that ad revenue that they're paying those (like me) who are signing up now for Google Print under a legitimate opt in scheme.

" The publishers who don't embrace the net will be swept away by it, while those who do will surf the wave to new excitement."

Ah, yes, the old "You're a dinosaur headed for extinction" put down. But where in copyright law does it say that an author/publisher has to "surf the wave" to have rights? Is mugging someone with a cassette Walkman any different from mugging someone with an iPod? Is it OK to break into homes without a computer but not OK if they have the latest hardware and a broadband connection? I smell more than a little technological snobbery.

And that argument certainly doesn't explain my opposition to Google's plans. My one-Mac mini publishing company is based on "embracing the net" in every way possible. I've even told Google Print they can put most of our titles in their system. But that's my call as the copyright holder. It's not something they can unlaterally declare with the not-so-hidden message of "We're big, you're little. If you sue, we'll bled you dry." That, in case you've forgetten, was Microsoft's policy with respect to patent law. Google is to copyright law what Microsoft was to patent law.

Finally, don't forget that O'Reilly business model is built on selling hot today, gone tomorrow books. By the time a book reaches a unversity library (if ever) and gets scanned by Google robots, an O'Reilly book is out of date and almost worthless. Not so the academic titles released by university presses. They may take 10-15 years to recoup their investment. It's their call whether they win or lose by participating in schemes like Google Print. No one should have to participate just because a few techno-nerds like it.

And for what it is worth, I take very strong stance in favor of fair use. I fought one of the biggest literary estates on the planet for the right to do a book-length chronology of The Lord of the Rings and I effectively won when a federal court in Seattle dismissed their lawsuit "with prejudice." What Google is attempting isn't remotely close to fair use. It is not and should not be legal.

--Michael W. Perry, Inkling Books, Seattle


Author: Untangling Tolkien

  Timothy Sheehan [09.22.05 12:27 AM]

Is it possible to use Google Print in such a way that would enable you to read as much of a book (that was digitized via the Google Print Library Project) as you wanted to read (and hence avoid having to buy the book)? For example, could you perform a series of searches (carefully selecting your search terms and using Google Print's "Search within this book" feature) to continue to display the next few sentences in the book until you've read all that you wanted/needed to read?

If this is possible, then I don't think Google Print's Library Project qualifies as Fair Use under the Copyright Law.

I think Google simply needs to make Google Print opt-in (instead of opt-out) and let publishers display as much of their books as they want to. I think most publishers would opt-in.

  Nate N [09.22.05 10:54 AM]

I don't see how this could be considered to be legal. Reasons why:



1. Google has taken the entire work and copied it onto their servers, without owning any original copy of it. How would this be any different then me borrowing a DVD from the local library and burning a copy of it at home? They may only show a few lines at a time from a copyrighted work, but they are using the whole thing, and for commerical purposes.

2. Google has made not just one copy, but many copies of the work, unless they have a much different network layout then I think they do. (If they only had 1 database server I would be shocked.) How would this be any different then taking a copy of Windows and installing it on all the computers in the office?

3. On-opt in vs opt out: all books I've picked up today seem to say "All rights reserved" in the front, near the copyright. Including the books I have by O'Reilly ;-). Since the author or publisher is reserving their rights, what gives Google the right to trample over them? Opt-in is the only way to go on this one. If Google wants to scan a work, they need to get permission from the publisher. You can't steal my car just because I'm not using it. You shouldn't be able to steal someone's copyrighted work just because you feel they aren't using it right.



Don't get me wrong. I love Google. But they way they are going about this one is wrong. The best course of action would be to apologize, ask publishers for permission, and correct their behavior in the future.



Regards,

Nate

  Hideyo Imazu [09.22.05 01:05 PM]

I have a concern along the same line as Jose, though I'm for Google in the law suit.
There always is chance of error by an individual or a group of people in Google.

There was a case in Japan where a scam business successfully got Google delete web pages accusing the scam from search results by claiming their "business" was badly affected.

The greater the power of Google, the more chance of causing a bigger damage even by a temporary mistake.

  Me [09.23.05 12:21 PM]

How is what Google is doing any different than a library hiring a person with an eidetic ("photographic") memory to create their physical card catalog? When the eidetic person reads the book, a copy is created in their mind; then a few snippets are used to create the index in the card catalog. And, that person is doing it for commercial purposes (i.e., he is being paid for creating the index.)

  Tim O'Reilly [09.23.05 02:51 PM]

Mike, you clearly haven't read Google's FAQ. They have sorted books into three buckets:

1. Public domain: user can click through from the search results to the entire text of the book.

2. Submitted by publishers to Google Print (opted in): user can click through to a page, and to two pages on either side, and links are given to Amazon, other online booksellers, and publisher's site. Ad revenue is shared.

3. Scanned via Google Library and not in either of the above categories: no content is shown, only snippets.

What Google's "opt in" will do is allow rights holders to move books from bucket 3 to bucket 2. If there are a lot of searches on a book, and no way to see more, that becomes a great tool for discovering demand, figuring out who the rights holder is, and then solving the problem.

Turn the situation around the other way, and the vast majority of works -- which are likely in bucket 3 -- never get into the system at all. Since it's precisely those works that are sunk in obscurity, publishers will never opt them in!

With Google's approach, those works will get discovered, and those that have rights holders will eventually be able to move them into bucket 2 in order to monetize them.

  decompiler [09.26.05 09:20 AM]

In response to Mr, Sheehan's question:

Is it possible to use Google Print in such a way that would enable you to read as much of a book (that was digitized via the Google Print Library Project) as you wanted to read (and hence avoid having to buy the book)?

From what I've seen - combined with Mr. O'Reilly's bucket discussion above - you can read all of the bucket #1 stuff you want with no problem, while bucket #3 can't be read.



However, the bucket #2 stuff, if you want to go through the pain of searching for something to find the first page of the book, and then search for a phrase that occurs 2 pages later to 're-center' yourself, and then continue to 're-center' yourself with a new search every 2 pages, you could technically read the whole thing, though it would be painful.



decompiler

--

"when you have a swiss army knife of a mind, everything looks like it should be dismantled."

-danny o'brien & merlin mann, make:01 - "life hacks"

  Tim O'Reilly [09.26.05 09:44 AM]

I agree with Decompiler that yes, it's certainly possible to read an entire book by "recentering" your search -- although you'll also need to periodically change your IP address, since Google also sets limits on how many pages can be viewed from a given IP in a set time period.

But that doesn't significantly change the dynamics. Virtually any copy protection system, however strong, can be broken by determined abusers, while the stronger they are, the more inconvenient they typically are for users. That's why I'm a supporter of systems like this that are simply "moral deterrents", reminding users of the preferred behavior.

In any event, based on data from the 9 month beta, there's not a huge amount of this kind of thing happening on Google Print. And of course, we have all the same potential problems on our Safari service. But the benefits to authors and publishers far outweigh the risks.

  Wayne [09.27.05 05:18 AM]

On the opt out bit...the biggest gripe I've seen is that a publisher will have to tell everyone what books they don't want indexed if Google is allowed to continue.

Why not let them create the equivilant of a robots.txt file with the books they have rights to and the 'contract' for each one. Something simple that anyone can parse to determine if a book can be scanned and any additional info the author wants known about the book.

This way anyone that wants to fetch the file will know what the rules are for that book and the publisher will only have to create it once.

  Tim O'Reilly [09.27.05 08:19 AM]

Wayne --

While it's possible for publishers to create a file of books they don't want in the service as a kind of opt out, this isn't really analogous to robots.txt. After all, a book isn't online, being spidered. It's a physical object being scanned. So a list like this is really very close to the opt-in list that publishers want to produce.

Here's the rub: both sides are really afraid of setting a legal precedent, which is what's keeping them from compromise.

Publishers insist on opt-in, because they are afraid that if Google's position that this is fair use prevails, anyone will be able to scan books without compensation using the same defense. I think that's a stretch. If someone can make the case that the use is fair, as Google is, producing a derivative product, more power to them. I don't think that the average little guy who wants to make an online archive is going to be swept up by the same precedent.

On the other side of the issue, Google is afraid that if they give in to the publishers' demand for opt-in that they'll be unable to scan most books, because only a small fraction of the available books will be opted-in, and the rest will be left in neverland. Remember that there are millions of books that are still in copyright that nonetheless no one cares about enough to opt in. Even for books that are in print and selling, publishers aren't always clear who has the rights, and for a low volume book, they aren't going to be incented to go to the trouble of sorting it out.

As a result, I believe that Google's approach is the only practical one to producing what will be a public good, and a boon for authors and ultimately publishers. Once they sweep up all the forgotten works in bucket 3 (see above), the ones that are valuable will float to the top, the owners will step forward, and can either opt in to take advantage of Google Print's revenue share, or opt out. If there's no clear owner, people will be incented to sort out the ownership for the works that have enough value to make that effort worthwhile. And the rest will at least still be discoverable via search for the few who want them.

  Richard Nash [09.28.05 09:06 AM]

Tim:

I too am a publisher (Soft Skull Press) and am very much in your camp along with Google. I would love to see publishers in support of the Google Print for Libraries create some kind of alliance, if for no other reason than to encouarge our fellow publishers to see sense. I've long been an admirer of O'Reilly's approach to intellectual property and it is something we are seeking to emulate at Soft Skull.

One observation, from a legal standpoint--in copyright, unlike in trademark law--a decision not to contest another party's use of your property does not in any way diminish your rights to sue when somethign does infringe.

But I fear that the AAP and AAUP and the Authors Guild are the only voices being heard at the moment.

  A Bismark [10.02.05 08:09 AM]

If I were to write a book, what rights and incentive do I get from society to publish it? Are they of paramount importance, or can they be side tracked for the greatest convenience to the greatest number of people? Three questions on this line, supposing that I have written an obscure book lying in MIT library cupboards, which Google intends to make a copy of.

1. Has Google bought the book, and paid me for it, before making fair use whatever?

2. Will Google pay me for citing quotes from my book, even if I don't OPT-IN? It could of course get a lot of money from ads because of my books?

3. How does Google protect my probable sales, to all its employees and partners, who would have access to all the books that I have written, but who can now freely read from its database etc?

Even if you can save a trillion lives by sacrificing just one worthless one? It is not your right to do the sacrifice. As it could very well be your life which is that seemingly worthless one in question.

  T. Schotanus [10.24.05 06:30 AM]

Mr. Bismark, firsts of all if this book is collecting dust in an MIT library where are your probable sales?



And if people enter the library and borrow your book and read it from beginning to end, extract any good information from it and publish that (within fair-use rules of course)? Where are your sales then?



And Google is still bound by copyright laws like anybody else so just offering their database unrestricted to employees and partners might very well be illegal and have to be protected but that seems like a unrelated problem and finally easy to solve.



On the other hand Google will assure that if anybody in the world looking for the information that your book contains will find it not just the ones with an MIT library access pass.



And on that page will be links to you, your publisher and if possible to Amazon or other places where your book can be bought assuring you a world-wide audience and all that for free!



I don't know what could be better for your obscure book lying in an MIT library.



BTW, governments have every right to "sacrifice" a live to save trillions (think soldiers in a war) but let me say that comparing this legal fight with Google to sacrificing human lives is way beyond proportion.

  J Birch [10.26.05 12:36 PM]

How is Google's approach to indexing and returning snippets from printed copyright works any different from their approach from indexing and returning snippets from online copyright works?

In both cases Google makes an intermediate copy of the entire work. In the online scenario, Google even presents a complete (cached) copy of the work unless the author has opted out from this feature.

Would an adverse (to Google) decision in this case mean that their entire business model and that of other search engines would be put in jeopardy?

  Mark P [11.02.05 05:53 PM]

I’m all for healthy debate so long as both proponents bear in mind one simple precept, the fundamental right of the author to control the use of their intellectual property.

Clearly publishing houses would love a free advertising/marketing system to promote their back list, obscure content etc, they might even happily share profits with Google in return for sales that they otherwise wouldn't have had.

Publishing a book is an expensive and time consuming activity. Many books that are published never actually recoup the cost of editing, publishing, producing, printing, marketing and distribution.

Before a publishing house sells a book on behalf of the author, it negotiates a contract with them giving it the right to sell their intellectual property on behalf of the author and share in the profits, whether that be printed, electronic, performed etc. The terms of these contracts vary depending on the success of the author.

If I was to quote sections of another person's literature, sing someone else's song in public or broadcast their movie, I am obliged to not only credit them with the work but in addition, seek their express permission and abide by their terms of use. It's their work.

The key here is that the rights of the author/artist are paramount.

I understand that by Google having an 'opt-in' model rather than it’s ‘opt-out’ model puts the control clearly in the hands of the big publishing houses. I also know that these same groups have traditionally been singularly inflexible in regards to changing the long held business models. That said, it’s no justification for the pirates saying 'these big companies have made enough money' or 'they are behind the times and deserve it’. That’s just adopting a vigilante approach and it’s still theft.

I have some key questions we should consider before deciding on the matter:

Does an author have the right to licence the use of his/her IP to one company/person exclusively? YES.

Does doing so potentially limit the distribution of that work or allow a single company to profit grossly from it? YES

Does the fact that you don't like this business model give you the right to simply take/steal the IP? NO

Should the producer of a work have first say on how it is distributed? YES

In comparison to P2P file sharing, Google has at least acknowledged that these rights exist. It concerns me that these two systems should be raised side by side. Many people like to use arguments like “These companies make plenty of money exploiting artists anyway” to justify their theft. Another person’s success does not give you the right to steal from them. I don’t believe that at any point Google was talking about taking someone else’s work without permission and distributing it freely like P2P, that’s profiting from impropriety. Rather it proposed publishing chunks of the work and then giving authors the option to ‘buy back control’ by making an arrangement with Google. In reality this arrangement would probably be mutually beneficial, however it appears a little like stealing someone’s car then giving it back on the proviso that they allow you to advertise your company on the back. The logic is backwards.

Regardless of how ineffective it may seem, Google must do what every other publisher has had to do and seek permission first. The laws were put in place to protect the artists and authors. Several large companies have been very successful selling other peoples works and sharing in the profits. If your crusade is simply to destroy large and successful companies because they are large and successful, I suggest you go and join the queue of people waiting to catapult themselves against the walls of Microsoft. There is no such thing a general right to someone else’s property, even if you can borrow it “for free” from the library and memorise it, the library has to pay a royalty to the author, albeit indirectly via the publisher. If in fact, if your argument is that you’d rather pay the royalty to the author than have the publisher take 90% of it, I can’t see how side stepping copyright provisions could possibly make it better for an individual author who could never afford the sort of legal protection an established publishing house could afford. Stealing it is even worse.

At the end of the day, Google will open it’s book store in some form, the big companies will find a way to keep selling books and some smaller authors might be better off, but probably not. The best answer is a form of compromise. Protecting the authors rights IS in the best interest of the publishers because by doing so, they effectively protect their profits. Publishers, even those ‘old, bloated and behind the times’ won't hesitate to adopt a new distribution model if it could potentially slash marketing, distribution and production costs. That’s a given. If perhaps in fact you are arguing that all IP should be public domain, the ‘everything in life should be free argument’ you are also mistaken. You are just as obliged to pay an author/artist for their work as you are obliged to pay a plumber to fixing your tap or a mechanic for fixing your car. It’s their product, just because taxpayers fund the cost of you reading it from a public library so that you don’t see the cost directly doesn’t mean it’s free and doesn’t give you an implicit right to steal it.

Dreams of a utopian Internet where everything you could ever want is available for free are exactly that, dreams.

The world is not for free. Deal with it.

  Andrew [11.06.05 01:35 PM]

Regarding comments by Mark P:

Your comment about making the rights of the artist paramount seems utopian.

The idea of copyright law was to extend significant, but not unlimited, state protection to the producer for a limited time. This was done to benefit society, as some protection produces more material, benefiting everyone. The enforcement of copyright has never been absolute.

Some things in the world are free, some are not. Example: I can compare the current IP industry to Darth Vader without getting sued by George Lucas (or whoever has the rights to "Star Wars"). Watch this "the current IP industry is like Darth Vader".

Is this a bad thing? Well, it *is* completely free, not only in money but also in time. I don't have to write anyone's lawyer or have my lawyer do lunch with anyone elses lawyer. I don't worry about being sued or arrested.

The intent of Google's venture is NOT to provide copies of texts, it is to provide "snippets". This seems to fit within current "fair use" practice, but would add automation. I don't think most people would substitute this for actually reading the book, but I can see this encouraging book purchases - imagine a free service that exposes a few sentences of your book to billions of people.

I consider this a huge potential benefit for content producers and consumers, but I have seen some legitimate issues raised. Would it be possible to construct the whole book with many snippet searches? Maybe, but remember with modern OCR software it is easy for wrong-doers to scan now anyway. Another possible issue is that reference text snippets could be all people need, and this would prevent purchase.

Should Google have to negociate some sharing of advert revenue with authors or publishers? Heck no. I say a service such as this should be "fair use" and thus uncompensated.

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