Oct 30

Tim O'Reilly

Tim O'Reilly

Google Print Debate on Farber's IP List

Over the past couple of days, there have been quite a few interesting postings about the Google Print controversy over on Dave Farber's IP List. There's a lot of the usual back and forth, but a couple of postings that give some background on possible legal precedent. Sid Karin argues that the case is the guiding precedent, while Cindy Cohn of the EFF believes that Kelly v. ArribaSoft will be the more relevant. Seth Finkelstein points to a series of legal articles over on the Scrivener's Error blog, which focuses on procedural aspects of the various legal complaints. Doug Masson points to his 1995 article on the difficulties inherent in adapting copyright law to new technologies.

Meanwhile, there are lots of us engaged in less substantial attempts at persuasion, including an opinion piece by Cindy Cohn, with a response from Lauren Weinstein; another post in favor from Julian Dibell, again rebutted by Lauren Weinstein. There are also pro-Google opinions from John Levine and David Reed, and an argument against from David Pakman, to which I replied.

Clearly this subject is generating a lot of heat. Probably time to give it a rest, since the parties are really just negotiating through lawyers and press releases, and eventually, this will get sorted out without the help of all us keyboard quarterbacks. I'll try to post on the subject in future only if there are more facts to discuss, not just more opinions. (However, radar-wise, I will say that this is one of the most important cases in copyright today, one that will have enormous implications for the future of publishing, one way or another. So it's definitely worth following.)

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Comments: 7

  Mike Perry [10.31.05 04:49 PM]

Kelly v. ArribaSoft is a weak reed to rest Google Print's case on. True, there are parallels. The thumbnails of art and photos that Arriba was indexing and posting as the case went to trial are like the short excerpts that Google Print will use and the every helpful Ariba quickly complied with opt-out requests, including that by the ill-tempered Kelly who sued.

But both the district and appeals courts stressed the service that Arriba was providing to everyone by linking to web sites where an artist/photographer had made his art available online. The thumbnail itself, the court noted, was of such poor quality as to be of no value. The artist/photographer had also chosen to post his work online, thus putting it on the market. The Arriba link took interested parties to a site where they could pay the artist/photographer for the rights to a usable image. Arriba was creating a win/win situation for everyone and, once the image was thumbnailed, the full version no longer existed at Arriba's web site.

But the Ariba/Google parallel only exists for books that are in print, being marketed and paying royalties to the copyright holder. Out of print, books that are only available used or through libraries do not fit that parallel. It is much more like sending someone with a digital camera to art galleries and museums, ignoring any wishes of the artist. Owning a copy isn't owning the copyright.

The reader may benefit. Google and whoever profits from Google's linking may benefit, but no royalties flow to the author due to the linking, nor has the author chosen (present tense) to place the book online or in the marketplace. He may, in fact, consider the earlier work so dreadful, he intends to use copyright laws to their full extent to keep down his embarassment.

Arriba is a marvelous case for defending unauthorized linking and for indexing the web itself, as Google does. And as a Ninth Circuit appeals decision for someone living in the Ninth Circuit, it was "controlling" in my successful battle with Tolkien estate lawyers over whether my chronology of a fictional work was fair use--the law in that matter having been corrupted by some dreadful Second Circuit court actions in 1998.

But Arriba is weak precisely where Google is being challenged most strongly by authors and publishers--Google's right to scan and index the entire text of books that are in library collections but are, for the most part, are out of print. For those books, Google cannot link to a website where the purchase of the book will result in income for the copyright holder. That's the key issue. Google Print may be a winning situation for Google and readers, but the copyright holder doesn't get a cent.

And I might add that I say this asa "one Mac mini" author/editor/publisher who's placed virtually every book released by Inkling Books in Google Print and Amazon's "Look Inside" program. I like the idea. I just don't think Google has a right to force all copyright holders, willing or not, into their program unless they tell Google (and anyone else who acts similarly) to the contrary. Given the size of the Internet, that could become a full-time job without a salary.

And elsewhere I've posted suggestions for changes in the law that would make the copyright of older works much more sensible. It's absurd that the law treats someone almost like a criminal for publishing something without permission, when it's often impossible to find the person who can give the proper permission. As someone who brings older works back into print, I fully understand Google's difficulties. But this isn't a life or death situation. We need to bring copyright law up to date, not simply ride roughshod over it.

--Mike Perry, Inkling Books, Seattle

  Jeroen Wenting [10.31.05 11:21 PM]

Well said Mike. Maybe if Google were to scan only a synopsis of those books, something akin to the cover flaps and maybe a paragraph or two from the foreword and first chapter, I doubt many people would think twice about it.
It would clearly be fair use and serve as a means of getting people acquainted with the works.
But Google goes way beyond that by scanning and publishing the entire works without prior permission (which they are under law required to get).
Even if each request may yield only a small section of the work, it won't be long before someone finds a way to continuously query Google for segments and recombine those to recreate the entire work automatically.
And the practice itself of simply copying an entire work without permission from the copyright holders is in itself a violation of copyright law even if that work is not then redistributed. If you go to a library and copy the latest Tom Clancy novel (for example) page by page you're in violation, but somehow Google consider themselves above the law and in their rights to do exactly that and then go further and make that copy available for all to see and copy for themselves.

  Anonymous [11.02.05 03:20 AM]

The law is an arse. The situation is that the publishing industry is not taking its responsibility. Many publications are lost from the public eye because of the lack of the current business practices and the awfull implications of disfunctional copyright laws.

Relying on a few libraries to host important works has been how we historically dealt with this problem. History is however full of libraries that burned down.

What Google is doing for library collections is insanely great. Its importantsance should be obvious. The arguments against the Google Print program that I have heard are self serving. They do not look at the big picture, the only thing I see is people hiding behind laws that do not preserve our culture. It is these same people who fail to realise that a book in hand is what people prefer, but in order to buy they need to read. Libraries have always been frequented most by people who bought the most books, the same is with file sharers, they are the people who buy the music.

It is this serious misunderstanding of who is active on the market in what way that makes for this sad situation. Self righteous people who think that business as "usual" is the only way forward, they fail to see that their usual is not appreciated by most of their public/customers.

I know of a collection of scientifically important photos that will not be digitized and made available because this scientist is dead and who now to ask. Fifty years after his death the slides will be deteriorated beyond salvage. There are people willing to digitize it now on condition that the material goes in the public domain.... Again, the law is an arse.



  O'Brien [11.02.05 11:30 PM]

This Washington Times Op/Ed is an entertaining read. I'd like to respond to it item by item, but anything from the Washington Times (Ministry of Information) just makes my blood boil too much to think straight.

No, really, read it. It accuses anyone who may differ with the opinion of being "intellectually dishonest".

War is Peace. Freedom is Slavery. Ignorance is Strength.

  Dan [12.26.05 03:40 PM]

I think that blogosphere reduces the level of feed back to the mass media. i mean those who wrote their opinion to the newspaper now simply go to the internet and write there. But it doesn't mean that the journalists and editors go to the same E-pages. [02.20.07 12:49 PM]

The Chinese blogger Isaac Mao has a three-part proposal for Google to help it get right in China. In an open letter to Google's founders he suggests: 1) Google set up a $1B venture fund to invest in leading edge companies in China. 2) "Develop anti-censorship tools and service for global Internet users." 3) "Increase the incentive to Chinese Google Adsense users."

When Google first announced that it would agree to censor certain search terms in China, I thought that it was a reasonable choice among only bad alternatives, given other steps Google took, such as hosting the Chinese service out of China so that the Chinese totalitarian government wouldn't have access to its records. I wasn't sure then, and I'm not more sure now, that Google made the right choice. Adopting Isaac's proposals would help explain why Google being in China is overall a good thing.

  kaos sesi [03.24.07 10:48 AM]

The cases against Google will depend on the court's interpretation of "fair use." David Drummond, general counsel of Google, says that Book Search was designed with fair use in mind. "We are not creating a substitute for the work by scanning the full text of a book," he says. "We are creating an electronic card catalog, and to do that, you need to copy that whole thing."

Publishers might have to resort to a similar argument should they overstep their authority, and later must answer in court for it. Any judgment against Google could come back to haunt publishers.

Zissu says that the debate over digital rights authorization won't be headlining the trial. "But this will not be a minor sideshow," he says. "It's not going to help publishers if they pick some books with all the rights tidied up. If they win, it doesn't leave them with protection against books not tidied up."
umutdolu team

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