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The Google Book Settlement:

The NYT reports on the controversy surrounding the proposed settlement in the lawsuit challenging Google's plan to digitize out-of-print books.

a growing chorus is complaining that a far-reaching settlement of a suit brought against Google by publishers and authors is about to grant the company too much power over orphan works.

These critics say the settlement, which is subject to court approval, will give Google virtually exclusive rights to publish the books online and to profit from them. Some academics and public interest groups plan to file legal briefs objecting to this and other parts of the settlement in coming weeks, before a review by a federal judge in June.

While most orphan books are obscure, in aggregate they are a valuable, broad swath of 20th-century literature and scholarship.

Determining which books are orphans is difficult, but specialists say orphan works could make up the bulk of the collections of some major libraries.

Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database.

The settlement, "takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google," said Robert Darnton, head of the Harvard University library system. "Google will be a monopoly."

A.:
Digitization of orphan works seems like a natural-monopoly situation. Academics&c who are worried about it would be better off arguing for shorter copyright terms.
4.4.2009 1:48pm
sureyoubet:
Brilliant strategy for Google:

While competitors respect copyrights, Google violates, gets sued, and then conspires with the plaintiffs' attorneys and few class reps to seize control of these orphan works (owners of which, by definition, can't opt out or be effectively notified beacuse they can't be readily identified and may not even realize that they own the copyright). By the terms of the settlement, these rights are effectively exclusive to Google, since no one else can negotiate with any entity for these orpahn works rights (the Rights Registry created by the settlement doesn't get the right to license these rights to anyone else unless the orphan works owners miraculously appear and opt in) and because Google carefully controls all access to the digital copies created under the settlement. And Google and these attorneys and class reps split up the monopoly profits for works that neither owns.

There is no avenue for anyone else to get the same rights or make the same offerings. Get sued? even if feasible, the incentives and liability profiles are now dramatically different, so the same settlement would not be likely or even possible...and needing to break the law is usually considered a pretty solid barrier to entry. Trespassing is usually not considered an adequate means for facilitating competitive entry.

So it's monopoly prices for access to the digital copies for libraries and consumers. And a Google monopoly on the vast swath of digital content that can feed their already dominant search engine with important information about the relationships between words and a monopoly on the ability to return information about these works in their search results...

This needs to be solved through legislation so that no one company is given control.
4.4.2009 1:56pm
common sense (www):
The problem is with the copyright regime in general. The digitization of orphan works is a net benefit, and I'm glad Google is doing it. It is sad that the only way to accomplish it is to break the law. But that isn't Google's fault, and more power to them for being willing to take the hit to make the information available. Another problem are these groups that say the represent all authors/musicians, etc. without an opt in. If no one knows the authors of these orphan works, why does anyone have standing?
4.4.2009 3:20pm
common sense (www):
The problem is with the copyright regime in general. The digitization of orphan works is a net benefit, and I'm glad Google is doing it. It is sad that the only way to accomplish it is to break the law. But that isn't Google's fault, and more power to them for being willing to take the hit to make the information available. Another problem are these groups that say the represent all authors/musicians, etc. without an opt in. If no one knows the authors of these orphan works, why does anyone have standing?
4.4.2009 3:20pm
Kirk:
A,
Digitization of orphan works seems like a natural-monopoly situation.
You seem to be confusing the term "orphan work" with the phrase "only one copy extant". Although even in that (much, much rarer) case, there's nothing difficult about Goggle scanning it and then passing it on to whoever's next in line, or vice versa. Where's the natural monopoly in that?

common sense,Who would object if Goggle were merely scanning orphan works and offering them on the web? By definition, the copyright holders aren't making any use of their rights. No, the problem here is granting Goggle any exclusive or enhanced rights as a result.
4.4.2009 4:14pm
common sense (www):
Kirk,
My understanding of the issue involves the Authors' Guild asserting rights on behalf of all authors. If they couldn't sue on behalf of the orphan works' authors, then there wouldn't be an issue. Part of the problem that brought the initial suit was how much Google was reproducing on the web for free. That practice, in part, caused the suit. In coming to a comprehensive solution to the full range of objections, the party developed this settlement, which is both long and complex. Part of the problem is that the settlement is assumed to encompass all books, with opt out provisions for authors, as long as they opt out rather soon. The exclusivity comes from the necessity of the settlement agreement applying only to parties in the suit.
4.4.2009 5:11pm
Jon Roland (mail) (www):
I haven't read the entire agreement but what I seem to get is that the "exclusive" rights are not to put the works online, but only to have their fund pay off copyright claimants on works they do put online.

The question would be, under this arrangement, what happens if some third party, other than Google, puts a copy online, either after scanning it themselves or after making a copy of Google's online copy. This deal does not seem to create a copyright for Google such that they could sue such a third-party publisher, and if the online publication came by way of making a copy of the Google online copy, then the copyright claim would be against Google and its fund rather than the third-party publisher. If not it would be against the third-party publisher but since that entity is likely not to have any money it would be in the interest of the claimant to at least pretend the copy was taken from the Google copy.

If that is the way it would work then we may have a good solution to the problem of how to allow anyone to republish apparently orphaned works online. It would have been better to have done it through legislation, but for orphaned works there is really no one to push such a reform.

Can anyone report on whether this interpretation is correct?
4.4.2009 5:40pm
Cornellian (mail):

Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database.


I don't see competitors lining up to do this. How long are we supposed to wait for them to appear?
4.4.2009 5:45pm
einhverfr (mail) (www):
So the alternative is not to let anyone do anything with orphaned works?
4.4.2009 5:56pm
A.:

A,

Digitization of orphan works seems like a natural-monopoly situation.

You seem to be confusing the term "orphan work" with the phrase "only one copy extant". Although even in that (much, much rarer) case, there's nothing difficult about Goggle scanning it and then passing it on to whoever's next in line, or vice versa. Where's the natural monopoly in that?


I'm not confusing anything. The natural monopoly arises because it is more efficient to (a) have every orphaned work only scanned once (uncontroversial) and (b) have all the orphaned works scanned by the same party (because of unlimited efficiencies of scale and because, unlike un-orphaned works, there is no mechanism available for competitive marketing of orphaned works).

On the other hand, a market might arise after the scanning step if firms decide to buy the rights to the scans from Google. Depending on the terms of this agreement, that might be more complicated, but because of the single-monopoly theorem, no more problematic.
4.4.2009 6:37pm
sureyoubet:
Cornellian:

archive.org for one. If the rights were clear, it's ont unreasonable to assume there would be dozens of organizations and companies looking to copy and index at least portions. (Imagine WebMD copying all medical books. Law.com copying all law books, etc.) Google happens to have decided that they know better than Congress what the law should be (maybe they do), and in doing so now will have exclusive rights as a reward for being the first to flaunt the law.

Ironic too that a company that has made billions from grabbing, indexing and presenting online content created by others without asking would prevent others from indexing and presenting content when they control it. But that is precisely what they intend to do with the copies they make and the copies they provide to libraries.
4.4.2009 7:34pm
Alexia:

So the alternative is not to let anyone do anything with orphaned works?


I think a better alternative would be to allow anyone to do anything with orphaned works.
4.4.2009 7:35pm
einhverfr (mail) (www):

I think a better alternative would be to allow anyone to do anything with orphaned works.


Or at least allow compulsatory licensing of abandoned works. FWIW, I think the Google Books settlement may be a step in the right direction to at least opening a public policy dialog over how to handle this issue.
4.4.2009 7:49pm
Kirk:
A,

So your confusion is elsewhere: your notion of "natural monopoly" is so expansive it would basically swallow everything else up.

Does anybody else think "marginally more efficient" is all that you need to have a natural monopoly?
4.4.2009 7:56pm
Kirk:
einhverfr,

I quite agree that compulsory licensing for orphaned works is a good way to go, and very consonant with the Constitutional view of intellectual property. Really, my objection here is solely that Google is said to be obtaining some kind of exclusive rights; if that's not so then I would have to rethink the matter.
4.4.2009 7:59pm
einhverfr (mail) (www):
Kirk:

The argument is never that Google gained exclusive rights, which they never did as a formal matter. The argument is that giving them default rights to all orphaned works, given their current position, might foreclose competition. That is the concern that people have about this deal.

The question is whether Google should get a head start, not whether others should be barred as a matter of license from obtaining similar permission.
4.4.2009 8:44pm
einhverfr (mail) (www):
Jow Roland:

The question would be, under this arrangement, what happens if some third party, other than Google, puts a copy online, either after scanning it themselves or after making a copy of Google's online copy. This deal does not seem to create a copyright for Google such that they could sue such a third-party publisher, and if the online publication came by way of making a copy of the Google online copy, then the copyright claim would be against Google and its fund rather than the third-party publisher. If not it would be against the third-party publisher but since that entity is likely not to have any money it would be in the interest of the claimant to at least pretend the copy was taken from the Google copy.


IANAL... Also reading 141-page contracts is quite tedious for us laypeople so I could be getting some details wrong.

I saw the concern about exclusivity in a different way. Currently nobody else is in a position to get default permission to distribute electronic copies of orphaned works as a class of works. What this does, is essentially turn orphaned works from an opt-in system which it is for everyone else to an opt-out system for Google.

This isn't an "exclusive" arrangement AFAICS under the normal way that term is used in copyright law. However, it excludes by default anyone else trying to set up any sort of competition. Hence the question of exclusivity is much more of an antitrust-type concern rather than a copyright concern.

Think of it this way.... Through brilliant legal manuvering, Google has set itself up as a privileged party regarding all copyrights in the US of books which are no longer actively distributed. If you or I put up a copy of a work which is currently under copyright but is no longer actively distributed (say "Runes" by RVW Elliott), the rightsholder could sue us for copyright infringement. However, with Google, this class action suit would theoretically prevent such litigaton and turn it into "well you didn't tell us not to."

This is extremely significant as to where it places Google in the industry relative to copyright law. It may also be a great place to start talking about copyright reform for orphaned works. However, I think the concerns have to do with a position which nobody else occupies relative to copyright law, and is contrary to general principles of copyright law, and which has been given to Google.

Does this make sense?

That being said, I still think the settlement is a good step forward.
4.4.2009 9:02pm
einhverfr (mail) (www):
Basically I support this settlement and think the proper step forward is to try to push through orphaned works compulsatory licensing laws so that Google no longer holds such a privileged position.
4.4.2009 9:05pm
Soronel Haetir (mail):
einhverfr,

Again, how do you propose to get such a change through when some of the biggest players in the media market deliberatly use taking works off the market to drive demand?

It would be a great change from the consumer standpoint, but copyright has morphed to be very much a creator/publisher crutch, and I don't see that changing any time soon. And I'm not certain I even want that to change despite the fact that I consume much more than I produce.
4.4.2009 9:41pm
einhverfr (mail) (www):
Soronel Haetir:

Wy not exempt earlier editions from the orphaned works arrangements?

Personally I see copyright as a quid quo pro and I think that taking works off the market violates the social contract at the heart of this (btw, I spend more time producing than consuming copyrighted content).
4.4.2009 10:05pm
Soronel Haetir (mail):
Also somewhat on the same topic, the following is interesting:
http://www.scotusblog.com/wp/professor-named-to-argue/

It would be really neat for a amicus to win a case against the wishes of both parties in interest.
4.4.2009 11:17pm
davod (mail):
I have difficulty understanding how any judge can approve this if it binds parties not part of the suit.

Surly the use of copyrighted material without permision is a breach of copyright law.
4.5.2009 7:52am
Jon Roland (mail) (www):
Soronel Haetir:

It would be really neat for a amicus to win a case against the wishes of both parties in interest.

That won't happen. What this case needs is an intervenor who represents the public interest. Wait, Frothingham v. Mellon and its progeny enable the courts to deny standing to those who represent the public interest and the Constitution. So much for judicial remedies.
4.5.2009 9:07am
einhverfr (mail) (www):

I have difficulty understanding how any judge can approve this if it binds parties not part of the suit.


Don't all class-action suits bind parties not a part of the suit itself to the extent they are part of a represented class?

Of course you can opt out of the class in the Google Books settlement and reserve your right to take further action on this matter, I think but IANAL.


Surly the use of copyrighted material without permision is a breach of copyright law.


I am quite sure a lot of folk are surly over this issue :-)
4.6.2009 1:02pm

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