Wednesday, April 22, 2009

Slightly more coherent critique of the BRR

The Internet Archive has decided to join (some of) the complaints against the Google book settlement.  Despite its background pattern being unsafe for small children and epileptics, this site manages to provide a point of contact (and embeds the complaint via srcrib).  Take care though, should you click through, to note that the actual argument in the post is totally falacious. 

From the Archive's letter to Judge Dennis Chin who is presiding over the Author's Guild settlement:

"The Archive's text archive would greatly benefit from the same limitation of potential copyright liability that the proposed settlement provides Google. Without such a limitation, the Archive would be unable to provide some of these same services due to the uncertain legal issues surrounding orphan books.

"The Archive is one of many Internet content providers that have an interest in opposing the proposed Settlement Agreement because it effectively limits the liability for the identified uses of orphan works of one party alone, Google Inc., and provides for a Books Rights Registry ("BRR"), the interests of which are represented solely by identified rightsholders, to negotiate their exploitation. All other persons, including Internet content providers such as the Archive, would not be able to use orphan works broadly without being exposed to claims to infringement.

To me this is the only point that potentially stands up in these critiques.  An ideal version of this settlement would be identical for Google, but offer the possibility of the same settlement on the same terms for anyone else who wants to go through the effort of scanning stuff.  In some sense, this is a bit unfair, because at the time the start-up costs involved in getting these books out there was not simply the cost of scanning and providing a infrastructure for searching and downloading, but also involved the willingness to take on the large legal risks -- the Internet Archive in asking for the same settlement is asking to be spared this legal cost.  Given that I think this legal cost is partially bullshit anyhow, even if it is a real cost, I would be willing to support extending the terms to other people who want to go into this business.  Doing so makes the non-exclusivity of Google's arrangement even more apparent, and encourages them to provide the best product in order to compete with the philanthropy of the Internet Archive (I'm presuming they will basically give this stuff away, meaning that they can charge 38% less than Google -- they will still have to pay the BRR). 

The head of the Internet Archive makes a few good points:

Kahle and the Internet Archive have been competing against Google for years, receiving a million dollars in funding from the Sloan foundation in 2006 to carry on its open-source efforts in an attempt to create a free platform that would render Google's profit-based model irrelevant.

"Google is so good at the media being their PR machine, that you would not know there was an alternative out there," Kahle said. "We have brand name institutions going open and foundations like the Sloan are funding (us). It shows that the Open Content Alliance is viable, that there is support for public interest. We don't have to privatize the library system."
When it comes to displaying his scans, however, Kahle is Amazon's man all the way: he's a big proponent of the Kindle and he made his money in the first place by writing search software for Amazon.

Kahle's point is not that Google is doing anything unethical or potentially damaging to the current publishing world, only that the Archive ought to be able to do the same thing: namely, scan out-of-print books and give them away without legal liability.

It would be wonderful to promise to let others compete with Google like this.  Of course, changing the settlement in this way definitely takes away any incentive to challenge the lawyer-ly mafia that now rules America, "Okay, let's do it, but you get sued first.  No, you get sued first.  No, it was your idea, you have to take the first suit.  No, really, please, you simply must be sued first".  The incentive it provides is for everybody to ride on everybody else's coat-tails, legally speaking. 

Frankly, if I were Google I would not be super-worried about this competition from the Internet Archive.  These guys are a bunch of fucking amateurs.  More power to them, and I support their proposed modification, but I think Google will de-map them in the long-run.  I mean, they give away plenty of mp3's on the site now, and you don;t see Apple and iTunes shitting themselves with fear quite yet.

Like many, this debate has become strangely twisted by rhetorical or ideological considerations, as a glance further down that fictioncircus site will show.  These comments reveal a complete and total lack of comprehension of what is going on:

I want to know what deal the Internet Archive will offer to rightsholders in order to compete with Google. Kahle wants everything to be free, does this mean that he will strip away even Google's meager profit-sharing deal to authors if he can?

Why can't we turn this into a two-year-long U.S. rights auction where anybody can try to outbid Google for these copyrighted works?

I think Kahle is "a good man," but his plan is essentially the same thing as solving the world's poverty problem by printing more money and then giving it away. For a few hours, everybody will be able to run out and buy food. Everything will be free!

But then the world's economy will collapse completely.

Who would write fiction without getting paid for it? Who would publicize fiction or edit it for free? Will all fiction soon only be slash fiction, fan fiction, and scripts for movies? Will this settlement mean that as soon as a book falls out of print, Google can scan it, and then they own it forever 'till the writer dies?

First, Khale is not "stripping away" any rights from the authors, he is simply asking to be able to compete with Google by giving away their 38% of the settlement. 

Second, why the fuck should we wait another two years for (mostly dead) authors to get a clue so that we can read these books.  They can always sell their work on their own, through the Internet archive or through some other publisher later.  A rights auction would be a fine idea in some ideal theoretical world, but in actual fact is such a complicated, friction-filled undertaking that it would result in Google and everyone else just throwing in the towel right off the bat, and we would never see these books.  Gridlock publishing. 

Third, the vast majority of people who write fiction (and non-fiction) do it for their health and are unlikely in any case to receive much monetary compensation.  I am in fact writing non-fiction, as well as editing it (sometimes) and publishing it for free on a daily basis.  This settlement will make it much much more likely that authors can get some money out of their books because there will now be someone with a distribution platform, and an incentive to monetize even the most obscure texts. 

Finally, the settlement (if you go nuts and actually read the FAQ explaining it before ranting) explicitly states that it only applies to books written prior to 2009.  So, no, Google will not be able to scan a book when it falls out of print.  They will not own the exclusive rights to anything, and in fact, they would probably help this poor bastard a lot given that his book is unlikely to get into print in the first place.  I'm tired of hearing from people who are unwilling to actually think through what's going on here, and just resort to the same knee-jerk "Google is evil and exploiting the poor authors" when they would undoubtedly jerk the opposite knee if you phrased the question in terms of the movies or music they are pirating.

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