Oct 21

Tim O'Reilly

Tim O'Reilly

It seems to be working for Jesus

Lovely piece over on about the latest Google Print lawsuit. It recounts a letter from an author whose publisher refused to put her book in Google Print. My favorite bit:

Someone asked me recently, "Meghann, how can you say you don't mind people reading parts of your book for free? What if someone xeroxed your book and was handing it out for free on street corners?"

I replied, "Well, it seems to be working for Jesus."

I continue to be disappointed by the reaction of my peers in the publishing industry. While they say they support Google Print and only worry about the precedent if Google Library's opt out position on being scanned is fair use, I believe they're just jealous of their prerogatives as gatekeepers of content. But they've fallen down on the job, with the vast majority of works that they claim to be seeking to protect their rights in actually left to molder in the trash heaps of memory. They say they want publishers to opt-in, but for most of the works in question, they no longer even know if they own the rights to be able to opt in. The works that are most in question are those that are likely unavailable except in libraries or used bookshops. As I've said before, Google's opt out approach is the only way to cut the Gordian knot of forgotten rights and permissions.

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Comments: 15

  DL Byron [10.21.05 06:44 AM]

This topic was debated on our local public radio station with Google present, Senator Feinstein, and an academic. Google's creative intepretation of fair use took up most of the debate and at one point the Google VP said, "authors should be paying us," which I think is the point of the concerns. Google thinks it's doing something good, and it most likely is good, but then defends Google defends itself by asserting that fair use applies to commercial use, which I think most would agree it absolutely does not.

If you've ever had a problem with Google and tried to reach them, I think you'd share a concern of authors who have to opt-out instead of opt-in.

I'm trying to understand why authors aren't getting paid for that content? Unlike a search result that's a blurb of the sites, this is the entire book.

Here's the link to the debate audio

  Brian Mingus [10.21.05 07:03 AM]

I just noticed a bunch of O'reilly books are on there. That's awesome.

  Sid Steward [10.21.05 11:07 AM]

I started writing a comment, but it turned into an article: Imminent Domain over Intellectual Property? Here's the hook:

"You might say publishers are acting like hold-out property owners who don't want to give their useless land to the developers. Yet the developers (Google) can unlock the value of their land by building a big, lovely mall complex. It's like Google wants to invoke some sort of imminent domain over publishers' property -- but pay them nothing. If it has so much potential for value, maybe Google should just pay the publishers fair value? Or maybe even share the risk somehow?"

  Anjan Bacchu [10.21.05 12:10 PM]

hi there,

I am a hindu -- so don't "get" the "works for jesus". Can anyone elaborate (for a non-christian) ?

thank you,



  Dorrian [10.21.05 01:15 PM]

AB: Letting others freely copy and distribute your book may work out in the end, and give you more exposure than you'd otherwise get than if you are fixated on rights. It's fair to say, however, that Jesus doesn't see much cash from the deal.

  Phil Atio [10.21.05 01:42 PM]

As a published author, I don't think I'm entitled to be paid extra for a reader finding a snippet of my writing through a Google search. After all, anyone could find that same snippet at the public library and I wouldn't get a dime. And that's fine with me.

Tim hit the nail on the head with "the vast majority of works that [publishers] claim to be seeking to protect their rights is actually left to molder in the trash heaps of memory." Anyone who has negotiated a book publishing contract knows that the publishing industry doesn't give a damn about an author's rights. Moreover, my publisher doesn't own my work and doesn't speak for me.

I applaud folks like Tim who are thinking about what's best for the customer. Shortsighted views may eventually lead the publishing industry's less enlightened members "to molder in the trash heaps of memory."

  Tim O'Reilly [10.21.05 02:24 PM]

DL, Sid - please read my earlier post on the subject, and Google Library's FAQ.

They are NOT exposing the full text of copyright works to be read, just building a search engine that helps people to find them, and buy them. It's just like web results -- when you see the snippet, you have to click through to get real results. And click through is to buy the book instead of to see the page.

This isn't about eminent domain. There is indeed some possibility of legitimate disagreement about whether or not it is fair use to create a searchable index, but if it isn't fair use, then what Google does on the web isn't fair use either, and the whole web search idea comes crashing down.

A much better analogy than a developer asking for eminent domain is web search itself. Imagine a world where search engines had to ask each site for permission to index them (opt in), versus sites being able to use something like robots.txt to opt out. It just wouldn't work. Either the search economy would never have gotten off the ground in the first place, or there would be this huge friction as people had to negotiate about whether or not pages could be searched.

It's also important to realize that publishers have already opted in a great deal of their current catalogs. What all the fuss is about is that Google is using libraries to find works that the publishers don't really even know about, or know if they have rights to. Opt in means that these works just don't get indexed. Opt out means that they get discovered, and if they are valuable, and the content owner discovers that, and then wants to opt them out, he or she can. It's really a win-win.

Publishers are afraid of the precedent, though. What else might be considered fair use? And by whom? They are afraid they'll be playing "whack a mole" with lots of small infringers. But this problem exists anyway, and won't get any worse as a result of Google Print's library project.

  Tim O'Reilly [10.21.05 02:27 PM]

Anjan -- "seems to be working for Jesus" is a reference to the people who'll give you selections from the Bible on streetcorners, or come hand out passages from scripture (if you'll take them) after knocking on your door. This hasn't kept the Bible from being the all time bestselling book in English, with hundreds of competing editions. In fact, you'd say that this "viral marketing" is intrinsic to its success.

The same, I'm sure, is true of Hindu scriptures.

  Thomas Beutel [10.21.05 02:52 PM]

It seems to me that this case is very similar to the case, where wanted to build a database of music and make it available only to those who could prove that they purchased the music. In spite of good intentions, they ran afoul of copyright laws that plainly state that you can't copy without permission. Permission is the key.

I totally get Google's good intentions here and I hope they succeed, but I think they are on shaky legal ground.

  David Todd [10.21.05 04:39 PM]

The broader step that's needed here is for the US to adopt the system that's used for patents in many other countries: you must pay a yearly maintenance fee to maintain the patent.

If the same system were adopted for copyright, works that publishers were no longer interested in (or had forgotten), would quickly pass into the public domain, while the folks like Disney who keep the pressure on to lengthen copyright terms could pay the fees and keep them.

  Sid Steward [10.21.05 05:49 PM]


I agree about the value of search, online and elsewhere. My imminent domain analogy was supposed to show Google's ability to mine new value from existing resources and that the main issue is money. What is the publishers' property worth to them? What is it worth to Google? Google would like to pay nothing, while publishers would probably like income from Google Library.

Google can't afford to venture into anything that won't yield great returns, and I think publishers want a piece of that. Indeed, the AAP seems to say so in their press release:

"... the bottom line is that under its current plan Google is seeking to make millions of dollars by freeloading on the talent and property of authors and publishers."


"... authors and publishers should not be asked to waive their long-held rights so that Google can profit from this venture."

For Google, I think the opt-in/opt-out battle goes beyond book and into all copyrighted material. If they can establishing that indexing is fair use, then what can't they index? This might be an inevitable battle royal.

I also have doubts about the real protection of opt-out, particularly if indexing is judged fair use. Opt-out sounds more like a courtesy by Google than real legal protection.

You say: "The publishers who don't embrace the net will be swept away by it," and I agree that's a danger.

  Sid Steward [10.21.05 06:11 PM]


Regarding opt-in/opt-out and the internet, I think that the DMCA actually provides some protection to search engines. It sounds like an opt-out policy.

This description of the DMCA's Limitations on liability relating to material online says:

"Web site hosting services, Internet service providers, and search engines that link to materials on the Web are just some of the service providers that transmit materials created by others. Section 512 of the Digital Millennium Copyright Act (DMCA) protects online service providers (OSPs) from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder's complaint."

  Tim O'Reilly [10.21.05 07:46 PM]

David --

I completely agree that a "use it or lose it" policy would be great for copyright. It would solve a lot of problems. Larry Lessig had suggested this a while back, and it would be a great compromise -- much better than extending the length of copyright to protect a few valuable (and highly lobbied) works, and keeping millions of others out of the public domain.

  Mike Perry [10.21.05 08:21 PM]

How this issue is heating up.! A few weeks ago, I had no trouble making one of the early posts. This time, in what seems an eye blink, there are dozens of posts ahead of mine.

Keep in mind that I speak as a one-Mac publisher who has a lot to gain from the added visibility Google is providing. As Inkling Books, I routinely bring old works back into print.

If you go to Amazon US and search for "Victoria Woodhull" as author, you'll see that I just released, Lady Eugenist: Feminist Eugenics in the Speeches and Writings of Victoria Woodhull. Retitled as a collection of what she wrote on eugenics from the 1870s to the 1890s, it's the only book by her in print in the U.S. Since she's the first woman to run for President (1872) and, with her sister, the first woman to be a stockbroker on Wall Street, this lack of interest is astonishing. Obviously, as the only person with a book by her in print, I benefit when anyone goes hunting for information about her.

But that said, I have serious problems with how Google is going about this. First, I'll take up Tim O'Reilly's well-informed remarks:

"They [publishers] say they want publishers to opt-in, but for most of the works in question, they no longer even know if they own the rights to be able to opt in. The works that are most in question are those that are likely unavailable except in libraries or used bookshops."

Yes, that's a big problem. Try to keep to the law and look for a way to publish magazine articles from the 1920s or 1930s. The magazine is most likely long gone, its editors dead, and its files decaying in landfills. The author, if one is even listed, is also long dead. To who do I go for permission to republish that article, which, thanks to Disney's greed and Congress' stupidity, is still in copyright? No one knows. And yet if I publish and someone steps forth claiming ownership, the law can get nasty.

And yes, if I spend thousands of dollars trying to locate who now holds the rights to each article, the courts are likely regard that as a sufficient "good faith" effort to give me immunity from damages. But I can't afford to spend thousands for each of two dozen articles for a book that's likely to sell only a few hundred copies a year.

A David Todd offers a suggestion to this problem that's being popularized by a certain well-known law professor at UC-Berkeley:

"The broader step that's needed here is for the US to adopt the system that's used for patents in many other countries: you must pay a yearly maintenance fee to maintain the patent."

I call that suggestion the "widow's impoverishment act," and it's just the sort of thing a well-meaning law professor is likely to come up with. It's also the sort of thing that the unscrupulous sort in Hollywood are likely to exploit to enrich themselves at the expense of widows who're not as legally saavy as law professors.

Pass such an act and watch for marvelous fiction to drop into the public domain and enrich a movie maker because some widow in a nursing home forgets to pay this dastardly $1 every year fee. That's what disgusts me most about lawyers. They seem so woefully uninterested in offering ordinary people rights that don't require a lawyer in attendance.

Pay tiny nuisance fees or a work goes into the public domain isn't the answer. As a publisher who tries to be ethical, I don't want to get rich because some poor soul isn't as sharp as Disney's lawyers at renewing copyrights. I think the current copyright term is far too long, but as long as it exists, everyone has a right to it.

My objection is that the law does not require copyright holders to keep a current registration, so I know how to get in touch with them and it doesn't, when an author dies, require some legal process to pass those rights on. I don't mind paying a fair market price for rights, I just dislike a legal system that insists I acquire rights, but offers me no help in finding out who owns those rights. It's a bit like a friend of mind who was ticketed for parking in what the ticket itself called an "unmarked no-parking zone." "How," she asked, "could I know it was a no-parking zone?"

That brings up one of my chief gripes with Google. In the world of politics, Google is an 800-pound gorilla. If it insisted that Congress do something to make tracking down copyright holders easy, Congress would listen. And if contacting authors were easy, the serious problems Google and Tim O'Reilly quite rightly see with opt-in would virtually disappear. If an author or his heirs doesn't list himself in the database with descriptions and possibly a list of his writings, his legal remedy would be reduced to simply insisting that, without payment, the work (or Google database entry) be discontinued.

That said, I am glad we've begun to debate intellectual property issues and not leave them to patent attorneys and Disney lobbyists. In that there is hope and in that sense the issues Google is raising are beneficial.

--Mike Perry, Inkling Books, Seattle

  Jeroen Wenting [10.24.05 12:19 AM]

Copyright registration was abandoned for a reason, and a very good one.
It is impossible to register copyright on everything you create in every place that copyrighted work might turn up at some point.

For example, as a (non-professional, but I've sold some work) photographer who has some of his work online it would be quite impossible for me to register copyright in every single country or other administrative entity where such a registry could exist and my work can be accessed.
It would mean sending hundreds of registration notices to each of several hundred offices worldwide in likely over a hundred different languages.
Forget one and I would no longer have protection of my work anywhere. Someone in that one location could not in your world freely copy my work and spread it worldwide as his own (which it would at that stage have become because he'd of course immediately register that copyright as his own in his own location).

Google is blatantly plagiarising work for commercial purposes and reversing (or trying to) the burden of proof by requiring copyright holders to find out for their own (without Google even trying to find them to negotiate permission) that their work has been stolen.

If I find out my work is being used commercially without my permission a cease and desist letter follows quickly together with a bill for the commercial use of that work (increased according to the guidelines set for that by the local photography society to account for the use without prior permission).
Everyone I know does the same thing. If such a case were to go to trial (the few times it's happened to me it never got that far) the thief would be quickly convicted.
Google is the thief here, and i hope they burn for it.

If they don't it effectively means that copyright law has lost all meaning and intellectual property no longer exists. Anyone will be able to legally do anything with any work created by anyone for any reason, putting all authors, photographers, cinematographers, etc. etc. out of business.

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