Lateef Mtima, of Howard University School of Law, suggested that the settlement would help the disenfranchised get access to books — and that copyright as a whole “should be an engine, not a brake on social development.” The lone librarian, from the University of Michigan, expressed a similar sentiment, arguing that “Broad social progress depends on being able to find, use, and re-use the scholarly record.”

I find this perspective compelling, as it connects with my own view that copyright’s purpose is not to permanently protect the property of rights-holders, but rather to foster innovation and creativity. Put another way, copyright serves a social purpose beyond rewarding individuals; the creativity and innovation it encourages is supposed to benefit society as a whole.

The concern expressed by the CDT representative, and others, is that there are potential privacy concerns with Google recording electronic access to books in a way that existing access methods (libraries, bookstores) do not is a potential problem, although in many ways it is an inevitable potential issue with any move to electronic texts. Still, I do share the concern that a single company (Google) stands to be the major gateway provider going forward — especially after recent missteps with regards to privacy on Google’s part.

I found other arguments less interesting, including arguments that this “turns copyright on its head” (I don’t see it) or that this doesn’t effectively represent the class because some rights-holders haven’t participated (this is a criticism applicable to most any class action).

My biggest worry is that the barrier of entry for other to scan books as Google has is simply too great, and that Google will become the de facto for-profit curator of what should belong to the public as a whole. But is that concern enough to scuttle the settlement? I’m not sure.

The judge indicated he will be taking his time ruling on this, due to the complexity involved. I would to, if I were him!

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Norman Oder of the Library Journal is covering the Google Books fairness hearing, being held today. I found the list of opponents and supporters appearing at the hearing particularly interesting.

Opponents include “Microsoft; Amazon.com; the Open Book Alliance; American Society of Journalists and Authors; Pamela Samuelson, University of California, Berkeley, law professor; Cindy Coh on behalf of the ‘Privacy Authors and Publishers;’ representatives of Japanese and New Zealand authors; representatives of France and Germany; Consumer Watchdog; and the Internet Archive.”

Oder adds:

Two of the 21 have dropped out, but two have been added. The state of Pennsylvania, also representing Massachusetts and Washington, will now be included; the states object to the provision for unclaimed funds. Also added is the literary agency Writers Representatives LLC, which objects on a wide variety of grounds.

It will be interesting to see exactly what arguments opponents make in court (they have roughly 5 minutes to present their points orally). Looking them over, it appears that, generally, opponents are invested more in the current rewards system for successful IP owners, although the inclusion of the Internet Archive and the Consumer Watchdog suggests this is not the complete story. The Internet Archive, for example, is worried about the Settlement favoring a single company (Google), as opposed to wanting to preserve the status quo — at least from what I gather so far.

Supporters include “Center for Democracy & Technology; the National Federation of the Blind; Sony; The Institute of Intellectual Property & Social Justice at the Howard University School of Law; and University of Michigan Librarian Paul Courant, who represents Google's first library scanning partner.”

It’s interesting to see Sony on this list, but then again, Sony has hardly benefited from the current publishing structure, as far as I can determine, so perhaps opening up access via Google (with whom they can partner, perhaps) would potentially benefit their e-reader plans.

The Center for Democracy & Technology generally speaks for the opening up of government and the protection of civil liberties, so it’s interesting to see that they support the settlement. The National Federation of the Blind makes sense, especially given current publishers tendencies to drag their feet on making electronic texts available, even to the blind. The only library representative, from hat I can tell, is a librarian from the University of Michigan.

I’ll be curious to see the succinct version of the arguments each makes in court — such a condensed time for oral argument generally means that only the most important points (as determined by the speaker) get highlighted.

Compare Google to other companies, like ProQuest or Elsevier. These two (among other companies) charge “exorbitant” fees to libraries for access to research materials. I think anyone who has ever worked in a library would agree that the costs of access are frustrating and increasingly impossible, and take a larger and larger chunk of library resources, even as library budgets are shrinking. Negotiating with them is an ongoing challenge, and the tools they provide — while powerful — are nowhere near the level modern technologies should allow. Contrast this with Google, which “has given us Google Scholar, Google Books, newspaper archives, and more, often besting commercial offerings while being freely accessible.”

Google Books has revolutionized the way many students and professors approach historical research. The size of one’s local library is no longer a limitation to the kind of research work one can do. I am no longer dependent exclusively interlibrary loan to get access to books my university lacks. Even if I eventually I want to actual, physical book, with Google Books I can see if it will be useful before I waste the time  (or the very limited funds I have currently to buy it myself).

Cohen also points out, however, that for all the utility of the service, Google “remains strangely closed when it comes to Google Books.” Cohen writes, “The real problem — especially for those in the digital humanities but increasingly for many others — is that Google Books is only open in the read-a-book-in-my-pajamas way.” Google has chosen not to maximize access to public-domain books, or abandoned books. To do so would potentially revolutionize the entire sphere of intellectual property and the publishing industry — the kind of revolution Google is famous for in other spheres, but which it has not chosen to push now. The current settlement may indeed be problematic, but it is not revolutionary. Cohen notes:

We should remember that the reason we are in a settlement now is that Google didn’t have enough chutzpah to take the higher, tougher road — a direct challenge in the courts, the court of public opinion, or the Congress to the intellectual property regime that governs many books and makes them difficult to bring online, even though their authors and publishers are long gone. While Google regularly uses its power to alter markets radically, it has been uncharacteristically meek in attacking head-on this intellectual property tower and its powerful corporate defenders. Had Google taken a stronger stance, historians would have likely been fully behind their efforts, since we too face the annoyances that unbalanced copyright law places on our pedagogical and scholarly use of textual, visual, audio, and video evidence.

via Dan Cohen’s Digital Humanities Blog » Blog Archive » Is Google Good for History?.

Much as I would have liked to see the IP regime change and to see Google leading the effort, perhaps such an attempt is unrealistic. Google understands Web data. It’s engineers understand electronic sources, hyperlinks, software, and PDFs. Their approaches and algorithms have revolutionized Web searching. But the people at Google have less of an understanding of the kind of research and writing done in the humanities, the books historians write, and the articles and research we produce. Cohen writes:

Because Google Books is the product of engineers, with tremendous talent in computer science but less sense of the history of the book or the book as an object rather than bits, it founders in many respects. Google still has no decent sense of how to rank search results in humanities corpora. Bibliometrics and text mining work poorly on these sources (as opposed to, say, the highly structured scientific papers Google Scholar specializes in). Studying how professional historians rank and sort primary and secondary sources might tell Google a lot, which it could use in turn to help scholars.

Google has managed to move into new areas before, from search to building hardware and software (the Nexus One), for example. Why couldn’t they learn from the humanities and not just from other engineers? Advertising, after all, is already a combination of engineering, humanities, and business — so why couldn’t Google developers learn from history scholars to improve their search algorithms for Google Scholar and Google Books?

I’m excited to announce that starting today, Google Books will offer free downloads of these and more than one million more public domain books in an additional format, EPUB. By adding support for EPUB downloads, we’re hoping to make these books more accessible by helping people around the world to find and read them in more places. More people are turning to new reading devices to access digital books, and many such phones, netbooks, and e-ink readers have smaller screens that don’t readily render image-based PDF versions of the books we’ve scanned. EPUB is a lightweight text-based digital book format that allows the text to automatically conform (or “reflow”) to these smaller screens. And because EPUB is a free, open standard supported by a growing ecosystem of digital reading devices, works you download from Google Books as EPUBs won’t be tied to or locked into a particular device.

via Inside Google Books: Download Over a Million Public Domain Books from Google Books in the Open EPUB Format.

This kind of access shows some of the potential of the public domain to allow for innovation and reuse. Thank Google — and Google advertisers, of course — for making it free. (They could legally sell public-domain works — there is no legal requirement that such access be free and open.)

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The central question in the privacy debate that EFF and our partners at the ACLU of Northern California and the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley have been having with Google about Google Book Search is whether this exciting new digital library/bookstore is going to maintain the strong protections for reader privacy that traditional libraries and bookstores have fought for and largely won.

via Warrants Required: EFF and Google’s Big Disagreement about Google Book Search | Electronic Frontier Foundation.

I think I can safely say that I am in agreement with the ACLU and EFF on this one. Warrants, requiring judicial approval, are an important safeguard, although not perfect. They are routine for most investigations of physical locations, and, I think, ought to be so for virtual ones as well.

Of course, this prevents large-scale “data mining” activities by governments, who could conceivable flag suspicious activity for future investigation — but that, I think, is how it should be.

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I have been rereading the legislative history of the 1909 Copyright Act.  I have come to the conclusion that 100 years ago we were smarter about copyright,  about disruptive technologies, about intellectual property, monopolies and network effects  than we are today. At least, the legislative hearings were much smarter.  The hearings I am looking at took place in 1906 — thanks to the wonder of Google books you can read them yourself, if you are really nerdy.

via Were we smarter 100 years ago..? | The Public Domain.

Themes from then and now certainly recurred, but there seemed to be a better balance among the business interests as to the pros and cons of various copyright restrictions. For example, here is an argument from the representatives of the recording and player piano industries that their technologies actually encourages the dissemination and sales of music — reminiscent of arguments by many today:

The whole of the article is worth reading, if only to remember that our current system was hardly inevitable, and that many pro-business arguments can be made for a different approach.

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Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner’s permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

via Copyfraud by Jason Mazzone on SSRN.

The article on the Register describes a newer player in this scheme: Google Books.

Kessinger [a publisher] made the [public domain] document useless to scholars, to force them to purchase the full hardcopy edition for $25. Links on the Google Books page directed purchasers to the Kessinger edition on Amazon.com and other online booksellers. Scholars were outraged. These works are clearly in the public domain, dating back to the 1890s and beyond.

When questioned, Google said it “must err on the side of caution… until we have determined that the book has entered the public domain.” But with the sheer volume of ebooks being submitted by outside publishers, there are obvious delays in clearing rights. Some publishers have exploited this gap, providing copyfraud editions where no free edition was available.

via Copyfraud: Poisining the public domain from The Register.

Legally, though frustrating, the situation is not always quite as clear cut a case of “stealing” from the public domain and “defrauding” the general public. Certainly, the process outlined in the Register article is essentialy that:

Committing copyfraud is astonishingly easy and costs nothing. I can borrow a public domain book from any library and scan it, or I could download the text from Project Gutenberg. I reformat it as a PDF, mark it with a copyright date, register it as a new book with an ISBN, then submit it to Amazon.com for sale. I may not even need to print and bind any books, I can offer it through Amazon’s Booksurge print-on-demand service, or as an ebook on Kindle. Once the book is listed for sale, I can submit it to Google Books for inclusion in its index. I could easily publish thousands of books; most would never sell, but with zero up-front cost, any sale is pure profit.

The key part of the above scheme is the scanning or copying of text directly, adding nothing new (or very little new, anyway — not enough to establish a copyright anyway). With no new value added (in loose terms — copyright is more complicated than this), there is no “new” work at all. Thus, there is no valid copyright. I can still sell these works, of course, but Google should not deny full access to them.

Re-typesetting a book (and possibly editing it, fixing errors, and generally adding value) is a different story. If a publisher does enough new to the book, it’s very possible that doing so would generate a copyright on the newly typeset book — but still not on the text itself. That would remain in the public domain, free to be typeset by someone else, quoted from at any length, or otherwise shared. But copyright — at least in a “thin” form — would, I believe, likely protect against straight-up photocopying or scanning of the newly published book itself, and that would then likely include that particular edition in Google Books as well.

“Thin copyright” covers works that, for example, add only limited additional value to a public domain work. The Electronic Frontier Foundation explains:

[W]here copyright owners have a thin copyright — for instance, where they choose to release a compilation DVD with a public domain work bundled with works in which they do hold the copyright. In either case, the copyright owner would obtain, at best, a thin copyright in the non– public domain elements, but does not thereby obtain copyright in an uncopyrightable public domain work. As recognized by numerous cases, including the Supreme Court’s decisions in Harper & Row v. Nation Enterprises [471 US 539 (1981)] and Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 345 (1991), and the Ninth Circuit’s decision in Sega v. Accolade, the public continues to retain the right to access the uncopyrightable parts of the compilation. An exemption is required to allow consumers to exercise their right of access and to prevent copyright owners from using technological protection measures as a bootstrap to extend their thin copyrights over public domain works.

Remember: the law is pretty much always more complicated than it appears at first glance!

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