Monday, April 20, 2009

Unless I'm missing something key ...

... this is just more useless hyperventilation over the Google book settlement.  First some relevant (fair use of course) snippets:

In the fall of 2005, the Authors Guild, which then had about 8000 members, and five publishers sued Google for copyright infringement. Google argued that its scanning, indexing, and snippet-providing was a fair and non-infringing use because it promoted wider public access to books and because Google would take out of the Book Search corpus any digitized books whose rights holders objected to their inclusion. Many copyright professionals expected the Authors Guild v. Google case to be the most important fair use case of the 21st century.


Approval of this settlement would establish a new collecting society, the Book Rights Registry (BRR), initially funded by Google with $34.5 million. The BRR will be responsible for allocating $45 million in settlement funds that Google is providing to compensate copyright owners for past uses of their books.

More important is Google's commitment to pay the BRR 63 per cent of the revenues it makes from Book Search that are subject to sharing provisions. The revenue streams will come from ads appearing next to displays of in-copyright books in response to user queries and from individual purchases of and institutional subscriptions to some or all of the books in the corpus. Google and the BRR may also develop new business models over time that will be subject to similar sharing.

One of the main jobs of the BRR will be to distribute the settlement revenues. The money will go, less BRR's costs, to authors and publishers who have registered their copyright claims with BRR. Although the settlement agreement extends only to books published prior to January 5, 2009, BRR is expected to attract authors and publishers of later-published books to participate in the revenue sharing arrangement that Google has negotiated with BRR.

By now, readers may be a bit puzzled. How can Google be getting a license to make millions of in-copyright books available through Book Search just by settling a lawsuit brought by a small fraction of authors and publishers?

and finally, a rather deceptive tidbit (I'll come to this in a moment)

If asked, the authors of orphan books in major research libraries might well prefer for their books to be available under Creative Commons licenses or put in the public domain so that fellow researchers could have greater access to them. The BRR will have an institutional bias against encouraging this or considering what terms of access most authors of books in the corpus would want.
There seem to be a few arguments against the settlement.
  1. Scanning these books for snippet display and search purposes should have been a question of fair use. I would actually agree with this, and this of course was Google's stated original intention.  But then the cold dead hand of the Author's Guild muscled its way in, and there was the predictable legal bamboozleing.   What the article misses is that the fair use trial was only part of, and really a small part of, the question -- one public good is being able to search and cite information, and another is actually providing a way for us to read all of these orphaned works and for their authors to receive some sort of compensation.  Just solving the fair use problem would not have created a market for these books. 
  2. The suit was settled as a class action lawsuit.  I don't really see the beef with this one either.  The whole point is to make these books available.  If you don't settle the whole class at once, then Google cannot make any of these works available, even on snippet or citation basis, because they face the constant threat of death by a thousand suits.  In addition, let's not get carried away with just how coercive the creation of a class is here.  They don't mention it in the op-ed, but authors and publishers can actually still opt out of the settlement until May 5, and even if they don't, the license granted to Google is non-exclusive.  So individual author's (or copyright holders) are really retaining substantial control over their works, and yet we still overcome the gridlock of negotiating with too many owners.  This is why I called the last quote deceptive; authors of orphaned works and reaserch libraries (as well as authors of explicitly claimed works) are free to offer the material under any license they want, including CC, or under no license whatsoever -- they can give it away on their website or print it on T-shirts or tatoo it on their ass if they so fancy, all perfectly legally (in most states).  Note the construction of the sentence quoted -- they don't say that author's can't offer their work for free, which would be a bald-faced lie, they say "if asked" and "might well" and then go on with the non-sequitir of how the BRR will have an "instituional bias" against this sort of arrangment.  Given that both Google and the authors controlling the BRR are for profit entities, I'm sure they will indeed have a bias against giving away their warez, however, the fact that any entreprising author can go into business giving away his own warez makes for still competition, even for a monopoly.
  3. Google will have a de facto monopoly on orphaned works.  This is probably true in a practical sense.  Someone else would have to go out and scan the same books and go through the same legal rigamarole to reproduce the database that Google has already built and try to monetize it.  I reckon it unlikely any company will make this investment.  But it's certainly possible, and eminently legal.  No on is stopping them from doing it.  Just like no one is stopping another company from indexing websites and creating a new search engine.  Yeah, I agree, it's an uphill battle almost doomed to failure, but that's only because Google is already providing a very good product.  Do you want to force them to give away paid search now too?  If internet search is a public service why is anyone going to put any effort into improving it? 
I am as suspicious as anyone of the knee-jerk defense of copyright and patent law that sneaks around under cover of "protecing innovation".  Often "protecting innovation" means protecting the comfy lifestyle of the great grandson of the guy that innovated.  This serves no public good.  But I don't really see that happening here.  Google stuck it's neck way way out on this one.  It spent a ton on scanning and took a shit-load of legal risk and it did something I am enormously happy about on a personal level.  My life will be improved by being able to access these books (if you don't beleive me, check out my rapidly expanding virtual library, much of which is difficult to find in print).  I want to encourage people to take on issues like this.  I don't want to see our society slip into a risk averse coma where we all think like lawyers.  The only way to preserve this innovation is to preserve some incentive for it (certainly the innovation is better here than in financial services).  And the incentive for large scale projects like this one almost has to be monetary.  With making music or wirting books, perhaps we can rely on the more social incentives like getting laid or being the life of the cocktail party (ie. getting laid 15 year later) respectively.  But not with scanning thousands of books or web pages.  If we want these projects to happen we have to allow someone to profit from them, at least insofar as the legitamate competition lets them.  If you take away that incentive, it seems pretty clear that nothing will happen.  Repeatedly.  Here, Google competes with other people who want to scan books as well as authors who have already been scanned.  What more do you want? 

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