September 22, 2005  ·  Lessig

googleprint.jpg

Google has been sued by the Authors Guild, and a number of individual authors. This follows similar threats hinted at by the American Association of Publishers. The authors and the publishers consider Google’s latest fantastic idea, Google Print — a project to Google-ize 20,000,000 books — to be “massive copyright infringement.” They have asked a federal court to shut Google Print down.

It is 1976 all over again. Then, like now, content owners turned to the courts to stop an extraordinary new technology. Then, like now, copyright is the weapon of choice. But then, like now, the content owners of course don’t really want the court to stop the new technology. Then, like now, they simply want to be paid for the innovations of someone else. Then, like now, the content owners ought to lose.

This is the best case to illustrate the story I told at the start of Free Culture. Property law since time immemorial had held that your land reached from the ground to the heavens. Then airplanes were invented — a technology oblivious to this ancient law. A couple of farmers sued to enforce their ancient rights — insisting airplanes can’t fly over land without their permission. And thus the Supreme Court had to decide whether this ancient law — much older than the law of copyright — should prevail over this new technology.

The Supreme Court’s answer was perfectly clear: Absolutely not. “Common sense revolts at the idea,” Justice Douglas wrote. And with that sentence, hundreds of years of property law was gone, and the world was a much wealthier place.

So too should common sense revolt at the claims of this law suit. I’m an academic, so this is a bit biased, but: Google Print could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible. Sure, Google will profit from it. Good for them. But if the law requires Google (or anyone else) to ask permission before they make knowledge available like this, then Google Print can’t exist. Given the total mess of copyright records, there is absolutely no way to enable this sort of access to our past while asking permission of authors up front. Or at least, even if Google could afford that cost, no one else could.

Google’s use is fair use. It would be in any case, but the total disaster of a property system that the Copyright Office has produced reinforces the conclusion that Google’s use is fair use. And for all those people who devoted years of their life to defend the right to p2p file-sharing — here’s your chance to show what this battle is really about:

Google wants to do nothing more to 20,000,000 books than it does to the Internet: it wants to index them, and it offers anyone in the index the right to opt out. If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet? The “authors’” claims, if true, mean Google itself is illegal. Common sense, or better, commons sense, revolts at the idea. And so too should you.

  • http://sethf.com/ Seth Finkelstein

    While I concur with much of what you say as a policy matter, the core of the debate is right here:

    “If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet?

    The answer can be: “Because the material on the Internet, though copyrighted, is freely made available without charge, and the vast majority of it has no commercial value. The books, by contrast, are typically never made freely available by the copyright-owner, and do represent significant commercial value”.

    That’s the reasonable answer to legal vs illegal in terms of copyright.

    I keep saying:

    Google Print: Copyright vs. Innovation vs. commercial value

    http://www.sethf.com/infothought/blog/archives/000898.html

    “… the technology company can’t be right every time, almost by
    definition. Because copyright as a limited monopoly fundamentally
    restricts innovation in some ways. That’s the trade-off.”

  • http://www.jackphelps.net jack phelps

    Scanning and indexing books is a new service, not a new technology. While I think it’d be great for information sharing to offer the index, I frankly don’t see how it damages technological innovation to stop it.

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    The books, by contrast, are typically never made freely available by the copyright-owner

    For me too it has been a while since I visited a public library.

  • Doug Lay

    To Seth:

    Of course the technology company can’t be right every time. The original Napster was wrong for instance (in my opinion, and the opinion of the courts), despite being undeniably very innovative.

    But it sure looks to me like Google is right on this one. This project will greatly enrich the culture while respecting author and publisher rights. And a project like this simply will not happen if indexing is not considered a fair use. Opt-in for works going back over 100 years, with ownership unclear? Completely impossible.

  • http://sethf.com/ Seth Finkelstein

    Branko: The library is not the copyright-owner.

    Doug: “while respecting author and publisher rights …” – that’s the problem in the first place. *Does* it violate copyright?

    Can one make extensive *permanent* complete copies of copyrighted commercial books, for the use in a commercial product, because the product itself is not a copyright violation? AS A LEGAL MATTER, this seems to me to be an exceedingly non-obvious question. I think some answers are too easy, roughly since the end product is not infringement, anything else associated with it is automatically not infringement. I’m not a lawyer, but I’m skeptical that works as an abstract matter.

  • Allison Tamer

    I happened to stumble across your blog, and this entry piqued my interest.

    I think, perhaps, this case is simply an example of a big misunderstanding between two organizations.

    While Google is scanning the entire text of these books into their system, they are not displaying these texts, in their entirety, anywhere available to the public.

    A person will be able to search for certain phrases, keywords, etc. in a number of texts, but Google will only show you the complete bilbiographical information, and perhaps the snippet of the text where your search term is mentioned, of any texts that match your search.

    Texts without copyrights may be shown freely and publicly (as noted by free e-book sites such as Project Gutenburg), but those with copyright cannot without the author’s express permission, and Google recognizes this and complies. Additionally, as you mentioned, author’s can opt out if they don’t want their works indexed.

    If this isn’t a misunderstanding, then I’m afraid it may be a simple showing of the general population’s overly litigious side. The authors see that Google is somehow gaining popularity, either directly or indirectly because of their works, and they want compensation for it, whether or not they actually understand what’s being done.

  • Sean Chitwood

    I see this from a slightly different angle. What Google intends to do is become the best indexed library in existence, they are not providing a service for these libraries. This is important because the libraries are licensed to have a copy of the copyrighted work, through the virtue of having paid for it, but Google has not, so they are not technically allowed to have a copy of the materials to index to allow the world to search.

    I see this as a valid complaint, Google doesn’t own a copy of the books to index, I think of the analogy of a person photocopying an entire book from the library, it is obvious copyright infringement and since that is almost exactly what Google is doing on a massive scale, Google is in danger, no matter what thier goal is.

    If they were indexing the catalogs of the individual libraries with the intent of turning the database over to those libraries, then they would be performing a service to the copyright licenseee and not be infringing on the copyright in my opinion.

    I think Googles plan should be this: FOr each book still in print pay the publisher that amount, For each book not in print, but with an identifiable publisher, work to find out the inflation adjusted price of the book and pay that amount, if they can’t identify the publisher/copyright holder set aside an amount of money equal to the inflation adjusted price of the book or an average cost of the book in case the copyright holder/publisher is identified at a later date.

    This would compensate everyone the amount that they deserve to be compensated, give Google the right to index the books and force the courts to rule on whether Google has done enough to protect the rights of the copyright holder and whether the service they are trying to provide falls under fair use, rather than giving them the out of saying “Google doesn’t own a copy of these works, they don’t have a right to do anything with them”, which courts do on occasion.

  • Doug Lay

    Seth:

    Point taken. I should have used the wording to “while taking steps to protect author and publisher rights” since it’s for others to determine whether those rights are actually being observed.

    Regarding the creation of a “permanent” copy – if that is an issue, it should be fairly easy to engineer the system around it. Store the scanned book in the database ONLY as a set of indexes (inverted files, hash tables, whetever tech Google uses) and give the only front-to-back original back to the library.

  • Michael J. “Orange Mike” Lowrey

    As an occasionally-published writer who has found reprints of his copyrighted material offered for sale online on at least one occasion, I can’t agree with you here. If, as is alleged, one can use this service to get the text of copyrighted material without paying for it, why on earth would I ever bother to try to sell electronic rights to anything I write in the future, either separately or bundled with other rights?

  • http://www.en-dash.com/blog Jake

    Michael:

    If, as is alleged, one can use this service to get the text of copyrighted material without paying for it

    I don’t know who’s alleging that. Google provides an excerpt only and takes measures to ensure that it’s not possible to piece copyrighted works together from those excerpts (I’m sure somebody’s going to figure out a way to work around that, but at a certain point it’s less work to just buy the book–or go to a library). So, unless my understanding of the situation is totally wrong, your copyrighted work shouldn’t be devalued by the service. If anything, the service serves to drive potential paying readers toward your text, which they mightn’t have discovered without Google Print.

  • http://www.highprogrammer.com/alan/ Alan De Smet

    Seth: That the public web is mostly full of worthless crap that is publically visible shouldn’t matter. Copyright isn’t less powerful just because it’s a page of pictures of someone’s kitten. Google clearly maintains a copy of (say) my web pages. The reproduce sections of those pages on demand for web surfers. By the standards the Author’s Guild wants, that’s clearlly illegal copyright infringement. It’s a bad idea to declare that things on the public web should receive less protection that non-web things. If I write up a political pamphlet and give it away on street corners for free, I should get more legal protection than I put a copy of the pamphlet online?

    I think the only reason search engines get away with it is that people are used to it. The first search engines arrived early enough in the development of the web that most people producing content for the web were relatively open minded to the idea. That the early web was entirely academic certainly helped. By the time that Real Business showed up, it was pervasive. The cost of not being index was too high, people expected things to be in the index. The attitude that search engines were good and should be allowed was pervasive.

  • http://sethf.com/ Seth Finkelstein

    I don’t want to be Google’s pseudo-attorney (IANAL!), but …

    General: Again, the issue is not whether providing search-snippets is fair-use. It’s whether the underlying wholesale copying of commercial material is then justified, or again a violation of the limit monopoly rights granted the copyright-owner.

    Doug: Whatever Google does technically in terms of storage format, it boils down to keeping a complete copy. Indeed, that’s arguably the goal.

    Alan: If someone makes their material available for widespread copying, and it has no “market”, then they are in a much weaker position to object to copying, than someone who enforces their copyright and also has a market for their commercial work.

    By the way, consider that this is not Google contributing to culture. It’s Google trying to supplant the publishers as the middleman business between authors and readers.

  • James B Franks

    Allthough Google does not posess a physical copy of the books they are scanning. They are doing it with the permission and help of the Libraries that do.

  • http://gnuosphere.blogspot.com Peter Rock

    It seems plausible – if not obvious – to me that eventually (legally or not), the complete database of works will reach the internet and thus, the machines of individuals.

    If this happens, it’s like all “books” in that database immediately take on a behavioral nature more akin to CC licensing. That is, although “All Rights Reserved” is still the law on paper, in practice the distribution rights are revoked.

    In a way, this is perhaps how it should be. But I would rather see the law changed so that on paper, the database itself is under a CC style license and open to the public. A world, virtual, library.

    Regardless, I don’t see what the problem is. No matter if you gave me every single “book” in digital format that ever existed, I’m still going to go to the store or go online and actually purchase books – even if I was the “trying to get everything I can for no cost” kind of person. In fact, If I had a database like this, I’d probably spend more on actual books than my wallet would advise. I don’t see what publishers or authors should be worried about.

    Somewhere in here, the CC has to play a part. Otherwise, things will get REALLY ugly when (not if) the GooglePrint database is leaked. As long as some still try to struggle and fit “All Rights Reserved” to the digital age, we are in for some real and never-ending pain. I don’t like the idea of Google having exclusive rights to such a library but with the right kind of enlightened CC licensing forced upon that database along with a big (and appropriate) middle finger to those crying foul over airplanes flying through their “property” – we could have something really special for humanity as a whole.

  • Jeff Keltner

    Seth, it is difficult to argue that this service represents Google trying to supplant publishers as the middlemen between authors and readers. Google, in reality, is connecting readers with authors and publishers in the case of copyright-protected works. Your argument, in essence, would be like claiming Google’s internet search service was an attempt to supplant ISPs as the middleman between internet users and site publishers.

    Now, it may be that Google intends to eventually offer a service to authors that would allow them to utilize Google Print to supplant publishers. However, if authors make that choice existing publishers have only themselves to blame for not offering a similarly attractive service to authors earlier. Google may not be creating culture in any real way here, but making it more accessible is certainly a valuable service for society as a whole.

    The real question I have for this group is why they didn’t simply send an opt-out letter to Google for their works instead of deciding to file a lawsuit?

  • http://sethf.com/ Seth Finkelstein

    Jeff, what I meant is that this service is not an altruistic act where Google is merely contributing to the Commons. Rather, it’s strategic business positioning. There’s nothing wrong with that, it’s a good move, leveraging their current strengths. BUT .. that sort of maneuver isn’t one necessarily commanding huge amounts of moral rightness, in my view.

  • Michael Mitzenmacher

    I am a computer science professor, and I must admit, I had grave concerns that Google Print would make it easy for someone to piece together a complete book by doing a number of phrase searches.

    So I tried it. I am happy to announce that Google has thought of this. They explain that for every work there are a large number of pages they will never actually present in response to a query; you can’t reproduce the whole book, as they don’t make the whole book available. Also, a large number of pages will only be presented if you sign in, via for example a Google mail account. In this way they can restrict users from trying to download large parts of a book without being tracked; this will allow them to argue that they are on the watch for copyright infringement based on their search engine.

    After my experiments, my original skepticism has at least temporarily disappeared. It seems like Google has thought carefully about these problems and is doing everything reasonably possible to ensure that Google print does correspond only to fair use, and that full copying of books will not happen.

    I would also like to suggest that those who think what Google is doing is or should be a copyright violation to actually look at the product beta. I think this reaction may just be due to a lack of information. Once you try the product, and read Google’s explanations of how it works and what their view of the copyright issue, I think you might change your mind.

  • http://gnuosphere.blogspot.com Peter Rock

    Michael Mitzenmacher,

    Although one may not be able to retrieve a whole book through a collective number of GooglePrint phrase searches, there still remains a database of the entire contents in the possession of Google. When that leaks, then what?

    Or can my assumption that a leak must inevitably occur – whether it takes 1 year or 5 years or 20 years or 50 years – be questioned?

  • http://abstractfactory.blogspot.com/ Cog

    Peter: Are you saying saying Google Print is illegal because it may someday be cracked? In that case, so are libraries, because last I checked a relatively unsophisticated thief could easily steal books from a library, OCR them, and leak the results onto the Internet. It It seems pretty dubious to judge the legality of a practice by guessing the uses that malicious attackers may make of it.

  • Michael Mitzenmacher

    I’m not a lawyer, but I don’t find the argument that Google is automatically in the wrong because it is compiling a database that would allow copyright violations if it fell into the wrong hands particularly compelling. Right now, all sorts of companies have our credit card information, social security information, etc. — but there’s nothing illegal about them collecting it, even though if it gets out, it could lead to identity theft or other crimes.

    Never mind the more obvious argument that people sell guns, knives, etc. all the time, and these objects can be used in crimes. Should companies really be held responsible if other people misuse their products? Only in extreme circumstances, I believe.

    If through negligence Google allowed this database out, perhaps there would be a case after the fact, but that’s a legal issue that I would enjoy hearing more knowledgeable people discuss.

  • ACS

    Larry, now I know you have gone off the deep end. If a persons material appears on the internet it must be the result of excercise of the right to communicate that material to the public or be excused by a fair use exception. The principles applied to internet material cannot be applied to books material can only appear on the internet if the right to communicate it to the public is exercised. Books by thier nature can be concealed. On the basis of your arguments material that is secured could be copied without recourse to copyright law. DO you really think that is the case?

    It is clear that Google wants to index books that are not publicised as a result of excercise of the right communication to the public. Therefore you have to argue that publication of a book on the internet is fair use of the copyright material.

    What is the particular fair use that should apply? I dont see a reasonable response to this question on the Free Culture web site or your own.

    The fact is you are arguing that fair use should be applied becuase there is new technology. This answer is without reference to the material itself and therefore devoid of effect in law.

    If Google only publishes books regarding abuses of government or corporations then it may be fair use. Or if searches and queries were limited to material in the public interest fair use may apply. But in the current circumstances it is being argued that copyright infringement should be excused on the basis the material can be copied more efficiently.

    Fair Use is not the argument you should be making.

  • http://www.commonsmusic.com Commons Music

    Just thought I’d jump in here and say what IP-rights man James DeLong had to say about this:

    To show only the limited info described by Google would, IMHO, pretty clearly be a fair use. So the authors must be objecting to the fact that an entire book is being copied without permission, even if it is then hidden in an electronic vault. But what is the objection, if only snippets are shown? Is it a fear of Napsterization — that once the digital copy is made it could escape into the world? Or is it simply a naked assertion of right — “copyright law says no copying, so you must pay me to do it, even if it would actually be in my interest to have snippets made available.”

    Google might well win a decision that copying a whole book so that individualized snippets can be made available is itself a fair use because it greatly reduces overall transaction costs in the society. I find this argument persuasive, though it would be interesting to hear the other side.

    He seems to be on Larry’s side on this one (although, to be fair, professor, I have to concur with other posters that information aggregated by Google on the internet is there freely, rather than books, which must be paid for).

  • http://gnuosphere.blogspot.com Peter Rock

    Cog:

    Peter: Are you saying saying Google Print is illegal because it may someday be cracked?

    No, definitely not. I’m not commenting on any legality over that.

    I’m saying that eventually, this database will circulate. But because we are still applying the archaic All Rights Reserved model as a default to copyright, this circulated database will forever be doomed to the Darknet.

    If we really want progress in the arts and sciences, I think Google should be forced to release this database under a creative commons style license after some short period of time. Obviously, releases of this type would occur ad infinitum – and that’s where profit can be had. Perhaps Google could be given incentive by being allowed to sell early releases of an updated database before the required date of a public CC release.

    I’m not saying what Google is doing is illegal. On the contrary – I think the overall idea is great. But who owns the rights to the database? Should corporate Google have this much control over the information even if they are the ones who funded its development? Perhaps Google can still make money and the ever-evolving database itself can still be released to the public and publishers and authors can still make money.

    I just think it would be a shame if the database itself – when it is leaked – becomes a Darknet floaty when instead, a progressive system of copyright could be applied and the world could bathe in this collection of knowledge.

  • ted nelson fan

    why arent people using and crediting TED NELSON for his Xanadu project? This project was designed to solve all these problems long before any of you hacks thought up the ‘creative commons’. Its absolutely disgusting that a genius of a man worked his entire life to solve these problems only to have them rephrased by sophmoric idiots. Very depressing state of affairs. GIVE TED NELSON THE CREDIT HE DESERVES!

  • quote by ted nelson

    The Two Parody Views of Copyright
    Copyright thinking has been polarizing into two nasty and crazed views: the “we’ll steal it all” school, anticipating the destruction of all copyright and copyright law, and the “we’ll nail you for it and lock everything down” school, with pay-per-view methods and client display software that clangs shut when the user’s money runs out. These two factions — copyright hawks and anti-copyright hawks — are currently engaged in legal and illegal maneuvers throughout the world.

    Regrettably, many seem to think these polarized, harsh extremes embody the only possible copyright views.

    It is of course conceivable that copyright will be overthrown, as many youngsters hope. But my assumption is that the copyright wars will get nastier and nastier, and the polarization is likely to worsen. As bandwidth and storage increase, the kids will steal and swap more, and crackdowns and unpleasantness will become more frequent and more likely.

    The flagrant copyright violators are counting on public sentiment to keep them out of jail. But as with marijuana possesion and sale, which huge numbers of people consider no crime, copyright violators may well start getting prison sentences en masse.
    What Better Alternative?
    I would gladly live in a world without copyright, but I don’t think that is going to happen. Therefore the best objective, most beneficial to all parties — and a Xanadu proposal now for forty years — is to find some way to make copyright less painful, and to facilitate well-intentioned uses of content.

    As a rule, finding a principled basis for such a political solution can be very difficult. But by luck, Xanalogical structure directly provides such a principled basis for a win-win copyright method.

  • more ted nelson quote

    Transcopyright is a unique bargain, which any rightsholder is free to accept or reject: in return for each excerpt being tethered to its original context (connected transclusively), and therefore no quote being out of context (by inquiry), the rightsholder gives permission in advance for all transclusion in any amount, in published on-line documents, and agrees to furnish any content portions requested. For those crass enough to want to be paid — and who have some hope of massive downloading of excerpts — a gateway micropayment may be added.

    These two deals represent two levels of compromise and accommodation. The first level of acceptance means you give permission for the re-use in return for the original context being available. The second level means you want the original context available, but you also want to get paid for each downloaded excerpt.

  • http://www.turnstyle.com Scott Matthews

    Didn’t my.mp3.com go down for making copies of CDs, rather than for making those copies available to subscribers?

  • http://gnuosphere.blogspot.com Peter Rock

    From the AG site:

    The suit alleges that the $90 billion search engine and advertising juggernaut is engaging in massive copyright infringement at the expense of the rights of individual writers.

    “at the expense“?!

    I don’t see it. How do they expect to back up that claim?

  • http://gnuosphere.blogspot.com Peter Rock

    More from the AG site…

    The complaint seeks damages and an injunction to halt further infringements.

    Damages?!

    Could authors work together with GooglePrint? Cut a deal so they can receive – ad infinitum – a paycheck for every updated database subscription GooglePrint sells to individuals and organizations. Then, authors and Google get another revenue stream, and the complete (not just an index/snippets) database makes its way into the hands of the public. I’d certainly pay for a copy of the database – or a subscription to one that is updated on, say, a monthly basis. And only a fool can say that nobody will then buy books. That revenue stream could arguably increase – not decrease. And of course, any particular author could opt out. On top of this, the database itself could conceivably be released under a CC license – in fact, perhaps it should be required. With Google in position for the “first sale” every month or week (or whatever timeframe) of a new database release – they could still sell subscriptions to those wishing to pay for immediate access to new content.

    Ok, maybe that’s just a wacky idea. But its no more wacky than a claim for “damages”.

  • Adam

    Perhaps they shouldn’t index actual books, but webcontent is open domain. I think anyway.

    david_will
    Hookahshisha.com

  • http://www.google-watch.org/ Daniel Brandt

    This is a reply to those who talk about search engines scraping the web, and comparing it with book scanning, and why is one okay and the other not?

    I think that the primary reason for this situation is that webmasters have never been organized to protect their rights. Even today there are exactly zero associations of webmasters. Compare and contrast this to the Authors Guild, founded in 1912, or to various publishers associations.

    Almost everything on the web, except for government documents, is copyrighted by default. The engines started serious crawling in 1995, and the robots.txt protocol was established as an opt-out for the convenience of webmasters. It was a geek solution, primarily to protect nonpublic information, or to control bots that could slow down or a site with excessive demands on its available bandwidth.

    This initial opt-out approach of robots.txt led to mission creep. Google was the first engine to offer a link to a cache copy, which reproduces the entire page inside a Google frame, directly from Google’s servers. You can opt-out of their cache copy with an instruction on every page on every site. Even so, this opt-out doesn’t work with text files or PDF files, because they don’t have headers for this instruction like HTML files do.

    Google was the first, but they got away with it, and now Yahoo and MSN do the cache copy too.

    The robots.txt protocol should be changed to an opt-in protocol to comply with copyright law. Unfortunately, there aren’t any webmasters with the resources to push the issue. If Google loses this case and the decision looks like it might apply to the web, then it will be worthwhile to take another look at how the engines might be forced to move to an opt-in model.

    Yes, that will hurt Google’s market cap. But it would improve the quality of the web, as various small niche engines go after opt-ins for selected sites. It will also go a long way toward solving the ecommerce spam problem, the affiliate site problem, the “made for AdSense pages” problem, the scraper site problem, and the whole mess of search engine optimization and marketing.

  • Mike Chartier

    So, again, I’m thinking “a plain and brazen violation of copyright law” constitues “open and notorious” possession.

    “and commonly a new invention doth offend against many rules and reasons (as here it appeareth) of the common law; and the ancient judges and sages of the law have ever (as it appeareth in our bookes) suppressed innovations and novelties in the beginning, as soone as they have offered to creepe up, lest the quiet of the common law be disturbed ….”

    The First Part of the Institutes of the Laws of England by Sir Edward Coke

  • http://www.kcoyle.net Karen Coyle

    Something I haven’t seen mentioned, but that puzzles me: The authors are accusing Google of *intending* to copy the books. I wasn’t aware that threatening to violate copyright was actionable in this way. Shouldn’t the authors have to wait until Google actually commits to supposed crime?

  • http://commonsrights.blogspot.com/ poptones

    it will be worthwhile to take another look at how the engines might be forced to move to an opt-in model…. it would improve the quality of the web, as various small niche engines go after opt-ins for selected sites. It will also go a long way toward solving the ecommerce spam problem, the affiliate site problem, the “made for AdSense pages” problem, the scraper site problem, and the whole mess of search engine optimization and marketing.

    In what way? With “opt-in search engines” we no longer get the NYT archives. the MSNBC archives, or the thousands of small, personally constructed webpages with their narrowly focused specialty information – but we STILL get the placebo mongers, the porn indexers and the bait and switch subscription sellers filling the pot-o-swill with their anxious “opt-ins.”

    google is the new Microsoft. I do not question the value of their innovations, and the contributions they make to the way we think about data, and the legal issues they battle in defense of their own bootm line, undeniabl have value to us all.

    But the solutions they are offering are every bit as brittle and vulnerable as those offered by Microsoft. Why do you think Microsoft is so scared of Google? Google is building “the google desktop.” It’s OS agnostic because the OS isn’t wherte the value lies – the value is in the information available to that desktop and the way in which it can be accessed. and the solution Google offers is little more than a vast corporate library. The price of admission may now be free, but as the infrastructure is built around that library there will be ample incentive for individuals to pay “the google tax.”

    What we need is a distributed search engine. we need a secure and reliable means of allowing thousands of individuals to contribute space and computational resources to the commons and provide a trustowrthy means pof accessing that shared resource. We need every desktop to be a little piece of a vastly distributed and publicly held “googleplex.”

  • http://k.lenz.name/LB Karl-Friedrich Lenz

    The lawsuit is asking to shut down the “Google Print Library Project”, not “Google Print”.

    A large part of “Google Print” is the “Google Print Publisher Program”. There Google does ask for permission first. That shows that it can be done for many books.

    That leaves the orphans. I recall that your proposal for dealing with them was to introduce a $1 registration fee, contrary to American obligations under the Berne Convention.

    That proposal would seem to be unnecessary if anyone is free to violate orphans anyway, as you advocate in this post.

    As to Google itself being illegal, well, of course they are. What’s wrong with that? It’s about time their free pass on copyright violations expired.

  • http://www.polisource.com Barry

    Some great replies here considering how extreme the blog entry was, but I only read the first, the last, and one or two other replies, which I agree with.

    One funny part of Lawrence’s post was when he said “I’m an academic, so this is a bit biased…” Um…how about you’re an extreme left winger so you’re insane!

    Why does it say “Sorry – no comment spam here!” and nothing else when I try to reply in Internet Explorer? I had to open Firefox to reply. I’m also not sure how someone should notify you of that. There’s no email address on your contact page.

  • Barry

    Works in IE now.

    BTW look into CAPTCHA to replace the “type ‘human’” thing.

  • http://www.elitism.info/journal David

    Barry,

    CAPTCHA is very annoying for those of us who are blind. There are parallel implementations that use audio, but many pages which use CAPTCHA as antispam do not use these audio solutions as well.

    All in all I’m rather happy that Lessig isn’t using CAPTCHA as I’m not at all sure I could comment otherwise. Also consider that the web isn’t only used in desktop computers, you shouldn’t rely on mechanisms that are not universally available to any web-capable device, and the only thing that is going to work for sure is html-encoded text.

  • http://www.elitism.info/journal David

    On a different note, I think accusing Lessig of insanity is a very intellectually lazy way of responding to what clearly has the structure of an argument, whether you agree with it or not. Now I could just say that I don’t expect any better from right-wingers, as they’re all intellectually lazy and they should be sent to re-education camps, but 1) I don’t actually believe that and 2) it wouldn’t advance our understanding a single epsilon.

  • http://www.polisource.com Barry

    Yes, I was being intellectually lazy on all counts. I know the issues about CAPTCHA, but I didn’t bother getting into it. I discovered a free CAPTCHA script that uses audio a while back. I started a thread about it here, which links to another thread I that I started. You probably have to know Perl to implement CAPTCHA using the method discussed in those threads.

  • http://www.elitism.info/journal David

    Mmm, festival and sox in order to create a distorted audio stream, ingenious. I don’t know how easy it would be to do voice recognition on it, but presumably not very. I guess the only con is festival is pretty heavy software, but otherwise it’s a nice way of going about it.

  • Kai

    Seth, I humbly contest the notion that there is no market for web content just because it is “publicly available” at no charge.
    A vast number of web pages rely on advertisement revenues and thus need people to actually visit their page, so the ads get displayed.
    This is analogous to the book publishers relying on people to buy their books (the difference being only that instead of the reader being charged, an ad is displayed).
    Thus, if Google’s copies of web pages (snippets, Google cache) prevent someone from visiting the page, it hurts the web page owner’s revenue the same way a book publisher is hurt if Google’s copies of his book prevent a potential buyer from buying the book (I’m not saying that’s the case, on the contrary, I believe).
    From that one can conclude that the situations are analogous and making one illegal implies the other one is illegal as well.

  • http://www.elitism.info/journal David

    Kai,

    I think that, as much as I may wish otherwise, the Google cache has very good chances of being illegal. There are those who think indexing is in itself illegal without a licence, but I think those are misguided…

  • Michael Rogawski

    I applaud Lawrence Lessig for taking a strong stand.

    Biomedical research (and the public) has immeasurably benefited because the abstracts of copyrighted research articles are available in online indexes, such as MEDLINE/PubMed.

    Before the electronic versions of MEDLINE, no one imagined that abstracts could be made instantly available to anyone, anywhere. Journal publishers could have sued for copyright infringment. Fortunately, cooler heads prevailed–it was agreed that abstracts are covered by fair use. The availability of a transformative technology necessarily requires revision of the notions of copyright. Yes, it is true that Google Print is based on an electronic “copy” of the full text. The important point, however, is that Google Print does not violate the *spirit* of copyright.

    We are richer because the right choice was made about abstracts. Journal publishers continue to exist and do a brisk business. We will be richer if the Google Print Library Project is allowed to survive. I can’t imagine that a dispassionate observer would not conclude that the huge societal benefits, outweigh the vanishingly small risks to authors and publisher.

  • Ashwin Gupta

    You are a magnificent speaker. I just attended your seminar at the University of Michigan. I’m going to be honest, when I was informed about the lecture, I was sure I was going to be the youngest one there (being a freshmen in college) and bored out of my mind. It turns out, it was just the opposite– at least the second part. I just wanted to say that your presentation was superb!

  • http://www.polisource.com Barry

    I think Lessig’s best argument, or at least the one closest to a legal argument, is

    “Common sense revolts at the idea,” Justice Douglas wrote. And with that sentence, hundreds of years of property law was gone, and the world was a much wealthier place.

    I searched Google for more information on Justice Douglas’s ruling and found an important detail in another blog entry by Lessig, from 2003. The Justice said “The air is a public highway, as Congress has declared.” I don’t think the part about common sense revolting at the idea was an important part of the Justice’s decision. Maybe it was an important part of Congress’s declaration, but Justice’s have to follow the law, not make it.

    As demonstrated by the many comments to “Google Sued,” that express different opinions from Lessig’s, common sense doesn’t revolt at Google being guilty of copyright infringement, but even if it did, I see no evidence that it would matter in court. Anyway, I wonder how common Lessig would require “common sense” to be for it to be the basis of a valid legal decision by a Justice.

  • BSatLaw

    It’s been hinted at in some of the comments but I’m curious to hear more discussion on it, given that I think there are some very articulate intellects at work on this blog; isn’t the real issue the act of making a copy of something that you don’t own -and is copyrighted- and then using it for a commercial purpose?

    I agree that the snippets are insufficient to qualify as illegal and that they’ll fall under fair use. I also agree that the potential for the system to be cracked -which may or may not ever happen- is not a valid reason for it to be rendered illegal. I also think that, as Lessig notes above, this is strikingly similar to indexing the web for commercial purposes (as Google obviously does). And I agree with the policy argument that if this is a violation of copyright law then perhaps that law should chance in the face of immeasurable utility.

    I’ll just restate my primary inquiry: is copying something -digitally or otherwise- that you do not own the copyright to and then using it for commercial purposes illegal?

    I look forward to your thoughts.

  • http://www.polisource.com/government-publications-legal-documents.shtml Barry

    The relevant portion of the US Code says:

    In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The Four Factor Fair Use Test from the University of Texas walks you through it. Using that test, this is what I found in Google’s case:

    Factor 1 — What is the character of the use?
    Answer: “Commercial,” which appears in the right column,, tipping against fair use.

    Factor 2 — What is the nature of the work to be used?
    Answer: In many cases, it will be “Imaginative” which tips against fair use.

    Factor 3 — How much of the work will you use?
    Answer: Everything, in a way, but no single person would be able to see everything so easily. Well, I just tried Google Print for the first time, and it says something about signing in to view restricted pages. I don’t know how much you get to read if you sign in. Anyway, if the question is taken literally, the answer is everything, which tips against fair use.

    Factor 4 — If this kind of use were widespread, what effect would it have on the market for the original or for permissions?
    Answer: It would compete with the original and/or avoid payment of royalties. The first two columns don’t fit at all.

    Google fails. Lessig is wrong.

  • http://commonsrights.blogspot.com/ poptones

    I do not think you can make this argument so clear cut. I do not believe Google is the internet altar boy many seem to revere it, but I do not see the inequity solely in the commercial use part.

    The database that would result from this project would be so unfathomably large it is absurd to talk of it “getting leaked to the internet” but since it would be openly accessed across the internet that may be moot. Anyway, the way Google has described this and the way it appears on their site) it very much is a corporate library – but a library without the lending. that some pages would be “off limits” means that its searches would never be completely comprehensive, and being unable to read whole pages would also be a limitation for many forms f research.

    at present, this would mean either buying the book (which they could easily do with something as simple as an amazon.com link) or going to the library and reading it there, copying the relevant pages at the copier, or just checking the book out and taking it home. There are already ways to get this information wihout engaging commerce, and that is the point – but by making the contents of the book indexed and searchable in context, the booksellers would provably benefit from each search in which their works appeared.

    If I am looking for a one line quote from Timothy Leary or Anais Nin this Google search may sate that need without any benefit to the publisher – but so what? If all I am looking for is a one line quote to insert into a blog post there’s no way in hell I’m going to stop what I’m doing, go to the library (or even to amazon.com) and obtain the entire book for want of a single quotation. Even in this case the publisher would benefit more from the Google search, since my quick and easy quotation could very well result in them getting a subtitle (and an amazon.com link) they would not have had I not been able to recall the exact source of this quote from my augmented brain.

    All of society benefits from greater access to information. There’s no logically consistent argument one can make here that publishers would not benefit from having their works indexed and searchable via automation. And it’s a certainty they are not going to attempt such a feat themselves – the value of a project like this lies in having all the information easily located in a single place and not having to fight through ten different search engines at addison, little -brown, time-warner, etc.

    The fear I have with this is only in that the information comes from a single source – there is no open competition for ideas here, because such a project is (at present) impossible to attack from a voluntary perspective. The upside in the battle, however, is that if Google wins this then the precedent is set and there’s no reason an army of volunteers couldn’t set about the same task via something like archive.org or the gutenberg project.

  • bowerbird

    i sincerely hope that — for the publishers that are opting out right now — google will charge them an arm and a leg to be included later, when they wise up… call it the idiot surcharge…

  • http://gnuosphere.blogspot.com Peter Rock

    poptones:

    The database that would result from this project would be so unfathomably large it is absurd to talk of it “getting leaked to the internet”

    “Absurd”? As far as I’ve heard, 20 million books is about 20 terabytes. I can’t say how many years it will be before individuals have storage devices that can easily hold that much information – but it would be “absurd” to deny that this scenario is well on its way. “Unfathomably large” is the perspective of someone who is not looking too far into the future. Sure, 2, 3, 5 years from now – 20 terabytes will likely still be way too large of a database for any individual to own on a home machine. But what about 10 or 20 years from now? 50 years from now, an individual may easily have 20 terabytes of information on a keychain.

    My point is, eventually the size of the database will no longer be a factor. So is the future of that database to be accessed only on the Darknet? How strange that would be. Something that may actually help authors/publishers sell books would be, through archaic All Rights Reserved copyright law, condemned to the Darknet. Oh well, I suppose the same thing can be said about p2p music file sharing.

    What a mixed-up world this is.

    I agree with Lawrence. My only worry is the extent of control corporate Google will claim over the database of books they hold. THAT should not be centrally controlled by a corporation.

  • steven

    I have many friends at Google and while they appear to retain the enthusiasm of the Internet 1.0 Dotcom company thy are slowly succumbing to what we ordinary mortals would call semantics of a corporate company. As users it is up to us to dictate their growth by speaking out whenever they cross the line. Just off on a tangent but can people stop sending me these mails. I do not want a free ipod nor do I have have many friends.
    FW:WILLY WONKA’S GOLDEN TICKETS!

    DOMEAFAVORBUDDY-the world’s first online favors community is getting ready for launch.
    To celebrate this the team has come up with a little competition we’ve called
    WILLY WONKA’S GOLDEN TICKETS.
    We believe in the “6 degrees of separation theory”
    (Google it if you are not familiar)

    The Game

    All the employees of DMAFB have set up multiple accounts with the top 10 free email providers.

    FOR YOU THERE ARE 2 STEPS

    1. Register at http://www.domeafavorbuddy.com
    2. Pass this email along to your friends with the title
    “WILLY WONKA’S GOLDEN TICKETS”

    If the theory is correct (ie everybody is connected by at least 6 people – For you lazy people out there) one or more of our employees should receive the email eventually.

    Whoever’s name appears as the ORIGINATOR of the email and is already registered at DMAFB wins an iPOD NANO, but there must be at least six people on the email list. It’s that simple!

    *DON’T PANIC! You still are eligible for other FREE PRIZES when you register at http://www.domeafvaorbuddy.com but it interesting to see how many friends some of you have.

    *[DON’T WORRY, The friends and family of DMAFB employees are exempt from this competition]!

    There’s no such thing as a free lunch you say? Who’s talking about lunch? WE’RE GIVING AWAY FREE IPODS!

    DO US A FAVOR by translating this email into your local language and passing it along.

    http://www.DOMEAFAVORBUDDY.COM ING SOON 2005…

  • http://sethf.com/ Seth Finkelstein

    Kai, regarding : Thus, if Google�s copies of web pages (snippets, Google cache) prevent someone from visiting the page, it hurts the web page owner�s revenue the same way a book publisher

    I think your reasoning is that advertising is a business model, purchasing is a business model, copying hurts purchasing, copying hurts advertising, THEREFORE if one can copy advertising-model pages, it’s exactly the same as copying purchase-model pages. The difference is that the purchase-model has a specific set of laws to enforce it (“copyright”), while the advertising model, for the most part, does not – even though they are both business models. So you can’t conclude anything based on legality just from the fact that they are business models.

  • http://www.robmyers.org/ Rob Myers

    What we need is a distributed search engine.

    Absolutely. Google are a future threat.

    A distributed Internet Archive would be good as well (no, not just the Internet itself :-) ).

    As for the legality of Google’s print operation, they are copying entire books to drive their business. That is not fair use. What they need is a robotic library that can read the books each time someone wants to search them but not cache the results, that wouldn’t infringe copyright. :-)

  • http://www.google-watch.org/ Daniel Brandt

    Anyone who claims that this Google project qualifies as fair use due to the enormous social benefit of having this material available for searching, is ignoring what’s already happening in most of the world.

    One poster above is worried about the amount of control Google will have over the material. The answer to that question is not speculative, as far as Google is concerned. Let me quote from the contract between the University of Michigan and Google ( available at http://www.google-watch.org/foia/umfoia.html ):

    ___________

    “4.6 Ownership and Control of Services. As between the parties, the Services and all content therein is, and at all times will remain, the exclusive property of Google or its partners: nothing in this Agreement implies any transfer to U of M of any ownership interest in the Services. U of M acknowledges and agrees that Google retains control of the Services, and that the design, layout, content, functions and features of the Services are at Google’s discretion. Notwithstanding anything to the contrary in this Agreement, Google is not required to make any or all of the Google Digital Copy available through the Services.”

    ___________

    “4.4.1 … U of M shall restrict access to the U of M Digital Copy to those persons having a need to access such materials and shall also cooperate in good faith with Google to mutually develop methods and systems for ensuring that the substantial portions of the U of M Digital Copy are not downloaded from the services offered on U of M’s website or otherwise disseminated to the public at large.”

    ___________

    Now consider that Google currently tracks everything that they possibly can when someone searches on their engine. They record the date and time, the IP address, the unique ID in their cookie that expires in 2038, and the search terms. Increasingly they are using redirects on their results, so that they know which results you clicked on. Yahoo and MSN also do this on their engines. Google apparently keeps all this information indefinitely; I know of no privacy policies from any search engine that specify data retention periods.

    Is the Google library project a public service, or is it a potential threat to privacy for everyone on the planet? Ask someone in China if they would be well-advised to use Google to search for books about the democracy movement. They could get ten years in prison, just like the journalist in China who used Yahoo mail. One more terrorist attack on the U.S., and we will most likely be in a similar situation with a brand new, tougher Patriot Act.

  • http://commonsrights.blogspot.com/ poptones

    Don’t bother, that’s lost on most. I’ve pointed out here again and again how everything we do online is already tracked and have tried pointing out the merits of a trustworthy system of peered computing, but few here seem to get it.

    The contract, however, doesn’t look at all remarkable. Google wants to make sure the database they are contracting is used in the way they deem fit (and will have to fight for in court) and, therefore, want to avoid having to fight another legal battle when/if one of their associates makes use of the data in a different way. In other words: if MSU’s raw database (ie the scanned and complete works they are making available to Google’s search engine) leaks out, Google wants their backsides covered.

  • http://www.polisource.com Barry

    More on common sense… As I pointed out in a previous comment, the Justice who Lessig claims made the world a wealthier place with a “common sense” decision as opposed to a decision based on the word of law, actually did have the word of law on his side, and the Justice quoted it. There’s no legal basis for Lessig’s assertion that “So too should common sense revolt at the claims of this law suit.” And to back that up, here’s a footnote from the Supreme Court decision in ATKINS v. PARKER, 472 U.S. 115 (1985). Note the last sentence.

    [ Footnote 29 ] It may well be true, as petitioners argue, that the computerized data in the Department’s possession made it feasible for the agency to send an individualized computation to each recipient, and that such a particularized notice would have served the Commonwealth’s interest in minimizing or correcting predictable error. What judges may consider common sense, sound policy, or good administration, however, is not the standard by which we must evaluate the claim that the notice violated the applicable regulations.

  • http://dashing-message-board Terry Jones

    It really is a tough, nasty question.

    Personally, I don’t particularly feel the original Napster was wrong. I think copyright laws are obsolete and do more harm than good. But, considering the courts’ bone-headedness in this matter, it’ll be interesting to see. Especially since authors don’t seem to have an organization as powerful as the RIAA to lobby for them.

  • http://www.polisource.com/government-publications-legal-documents.shtml Barry

    Speaking of Napster and “the right to p2p file-sharing,” Napster couldn’t get more sleazy if their owner became a lawyer and sold used cars while running for public office. When I think of p2p file sharing companies, I think of such things as criminal facilitation, swiss bank accounts, hacker conventions, and those people who teach that nobody has to pay taxes.

    In this post, Lessig says that even He can’t believe the INDUCE Act, “which will criminalize the act of inducing another to commit a copyright violation.” Heaven forbid there be such a deterrent against a violation of someone’s rights! What were lawmakers thinking of! Oh yeah, they were probably thinking of PEOPLE’S RIGHTS! And legal rights too, not just the opinion of some guy who wants mandate his version of common sense.

  • http://commonsrights.blogspot.com/ poptones

    As liberty is outlawed, those defending it become criminals.

  • ACS

    Isnt it posner who argues that without property rights there is theft. Would you display your works if there was no reward? Would an artist be famous if his works were not attributed to him?

    Liberty is not a right to theft.

  • http://commonsrights.blogspot.com/ poptones

    And restrictions on speech in the guise of “protecting rights” is not liberty.

  • http://www.polisource.com Barry

    In this case, writers know there are certain restrictions on use of their “speech” and they tend to like it like that. As for Google’s and Napster’s speech, let them create their own. Violating the law and engaging in activities for a profit that result in mass violations shouldn’t be an option.

    If Lessig wants the law to be changed, he should be honest about it instead of pretending that what he wants is already legal. I don’t think he really believes many of the things he says. With his legal background, he probably knows better. I think he’s just doing what he can to achieve what’s on his agenda. Anyone know his political affiliation? He’s a libertarian, right?

  • http://commonsrights.blogspot.com/ poptones

    I don’t think you’ve actually read any of his books. And I sure don’t think you have grasped the point of the post we are supposed to be discussing. You seem to have made an errant conclusion about the matter and then read only the words that fit your assumptions.

    Perhaps you should run for office. You seem to be born for politics.

  • http://commonsrights.blogspot.com/ poptones

    In this case, writers know there are certain restrictions on use of their “speech” and they tend to like it like that.

    One thing for sure: you don’t know a damn thing about “writers” (or “writing”). Perhaps that is why your comprehension skills seem so lacking.

    Do you have a point to make here?

  • http://www.polisource.com Barry

    You’ll have to be more specific if you want me to know what you’re referring to in your last two posts. I’ve made my points, but you never know…I might have more.

    You all could discuss whatever you want, but it shouldn’t surprise anyone that someone (me) is making specific reference to the blog entry above the “comment” button, or quoting the relevant law. I don’t believe I was off topic until I continued with Terry’s discussion of Napster…but Lessig mentioned p2p, so it’s all good. I’d already debunked Lessig on more on-topic points anyway.

  • http://memumentary.typepad.com/ meme-umary

    So, I take it that if print works are indexed, then it soon shall follow that works of film, video and photography will also be searched for using keywords.

  • http://gnuosphere.blogspot.com Peter Rock

    Would it make a significant difference – in the context of U.S. copyright law – if it was the people (i.e. the government) implementing this project instead of a private corporation?

    I still want to know what is to become of that database of digitized books.

  • http://commonsrights.blogspot.com/ poptones

    ROTFL. Barry, I think you might have “de-bunked” yourself when you were a kid… and hit your head on the way down?

    Quoting the bad laws in existence does not serve your points, as the entire point is they are bad laws and need to change. It appears this has gone completely over your head. Good thing such arguments haven’t gone over everyone’s heads.

    Let’s see you “debunk” those “socialists” at the Financial Times. Yeeha.

  • WJM

    Would you display your works if there was no reward?

    Oddly enough, thousands of artists did this before there was ever a copyright law. Thousands of writers wrote, singers sang, poets poed. How can that be?

    Copyright is the PRODUCT, not the CAUSE of, the cultural economy.

    Would an artist be famous if his works were not attributed to him?

    By definition, no: Being famous means having a name (or at least an identity; not necessarily the same thing) that is widely known. Your question is circular.

    Better question: Would an artist be famous in the absence of any legal requirement to identify him as the author of his work? Answer? OF COURSE! There are thousands of creative people who are famous because of their work, who lived, died, and created long before that legal requirement — these days, it’s called “moral rights” — ever existed.

    The US has historically been much less keen on moral rights than, say, European countries, yet, curiously enough, the US has produced thousands of famous songwriters, poets, authors, composers, journalists, sculptors, etc., etc., etc.

    How can that be?

    Liberty is not a right to theft.

    Reasonable limits to the width, breadth, and depth of copyright are not “theft”.

  • http://www.polisource.com Barry

    Poptones wrote “the entire point is they are bad laws and need to change. It appears this has gone completely over your head.”

    Nope, that wasn’t Lessig’s entire point. I made it clear what part of Lessig’s post I was responding to in my past replies, and I don’t think I misinterpreted anything. How do you explain his comment that “Google’s use is fair use. It would be in any case…”? He’s referring to the law there, as though it was on his side. Well, I quoted the law and analyzed it step by step, and Lessig is wrong. I’m not sure why this is in the “bad code” section. The first point seems to be a complaint that “content owners turned to the courts to stop an extraordinary new technology,” and the second is about the “code” being against the content owners.

    I’ll repeat this from a previous reply: “If Lessig wants the law to be changed, he should be honest about it instead of pretending that what he wants is already legal.”

    I wonder if when Lessig says “Then, like now, the content owners ought to lose” he means that they should lose their case despite the law.

  • http://commonsrights.blogspot.com/ poptones

    How do you explain his comment that “Google’s use is fair use. It would be in any case…”? He’s referring to the law there, as though it was on his side. Well, I quoted the law and analyzed it step by step, and Lessig is wrong.

    he was making an argument not asserting a fact – a fact you do not seem to grasp.

    And you didn’t “disprove” him at all. In fact, my own post after yours pointed out the many holes in your very weak argument.

    Perhaps this would help you with that comprehension problem….

  • http://www.polisource.com Barry

    He mentioned the name of a legal doctrine, saying it protects Google. I proved that incorrect, unless I missed something. Maybe your argument pointed out holes in my legal argument, but I didn’t notice. I think you’re referring to my post here. Your reply follows it.

  • http://commonsrights.blogspot.com/ poptones

    He mentioned the name of a legal doctrine, saying it protects Google

    Really? I just read it again and I see no named doctrine. Perhaps you could point out the relevant passage for me. If you are talking about that “fair use” part, then I see nowhere that is used as a proper noun. “Fair” is used as an adjective which describes google’s method of use. But more importantly, the entire post is obviously a statement of opinion. You can no more “debunk” opinion than you can debunk God.

    Having a searchable, automated database of all written works would have immense value to us all. The real trajedy I see in this is that our federally funded Library of Congress has not taken upon itself this project. It inarguably serves (in unprecedented fashion) the foremost reason for having Copyright in the first place: to promote the progress of science and of the useful arts.

  • http://www.polisource.com/government-publications-legal-documents.shtml Barry

    Saying “fair use” in this context implies legal fair use. In text about fair use regulations, you’ll see the term used in a similar way to how Lessig used it–not as a noun. Then there’s what he said about the Justice’s decision, making it sound like it was based on the Justice’s idea of common sense, leaving out the Justice’s statement about what congress has said. Either Lessig was saying the law is on his side or he was being extremely misleading on purpose, trying to get people to believe that the law is on his side.

    I’m still curious, is Lessig a libertarian? Is he afraid to admit it because he thinks he’ll have less of a following or he won’t be able to attract as many quality guest bloggers? Are you going to make me look at his book to find out.

  • http://sethf.com/ Seth Finkelstein
  • http://www.polisource.com Barry

    I read all the sentences with “libertarian” in that, but it didn’t answer my question. I read yesterday that Lessig was one or had some libertarian beliefs until some event in his life, but I wasn’t clear on whether he’s one now.

  • http://wwwhttp://www.psupress.org/news/news_google.html Tony Sanfilippo

    I work at a university press. Four of the five libraries in the program are university libraries. Much if not all of what we have published in our 50 year history is in those libraries Google is proposing to scan. In fact, that’s probably true of almost every American university press.

    Here’s why I object to that.

    Google is making at least two digital copies of our books using one to index and giving one to the library. Those copies are payment by Google to those libraries for access to the books. Using an unauthorized copy as a payment is an infringement.

    University presses are concerned about the unrestricted and uncompensated use of our materials by university libraries in e-course reserves. Those copies Google is giving the libraries will have the potential to exacerbate that problem exponentially.

    As a university press, we’re not in the business of suing professors or libraries, and we don’t see that as useful. We do want to try and educate both professors and librarians to the fact that they too have a stake in this model. The less we publish, the less libraries have to offer, the fewer faculty members get tenure.

    Without university presses, a lot of scholarship wouldn’t get vetted, edited and designed. Do we want to chuck the whole commercial model for the production of scholarship? Perhaps we should. But as long as there is a perceived value in measuring scholarship in the marketplace, and until university administrators decide we should chuck it, we’re dependent on that model and we must abide by the rules that environment imposes. Our non-profit university press, like most, has a clear mandate from our administration–be sustainable. Make less money, then publish fewer books.

    My objection is that we will loose the opportunity to sell those digital files of our content ourselves. Each of the libraries in question probably has 70 – 90% of what we’ve published over the past 50 years. The files of our content that Google is giving each library are worth tens of thousands of dollars, if we had been allowed to sell them those files. The libraries involved have all bought or subscribed to our digital content in the past. Now they won’t need to anymore. That loss of income means many new books won’t get published. That means scholarship and the advancement of knowledge suffers much more than any advantage gained by the indices Google creates. WorldCat is already a pretty good index of most university library catalogs. Google does not need to duplicate that index at the expense of scholarship.

    I don’t buy the fair use argument. There are four factors in determining fair use. Commercial use is the first factor for a reason. Like the first amendment. Not only will Google be making money by selling ads next to the content, they are using copies of our content as payment for access to our books. I can’t understand how anyone thinks that qualifies as fair. And I hope people can understand why that might actually hurt the advancement of knowledge, not improve it.

  • http://commonsrights.blogspot.com/ poptones

    Tony, I’m not sure I completely understand the “marketing model” of youyr university press, but it sounds to me like your argument against the way Google is going about this doesn’t really have anything at all to do with the central goal of creating an indexed database of all written works. Your problem seems to be with the details of the process of creating that database, not of the database itself.

    Consider: a project distributed amongst thousands, where each individual acting as volunteer scanned their favorite works and submitted them to an index database that lived “in the cloud” – free of regulation or ownership by anyone, but accessible only in a fashion that preserves the rights of the authors against unfettered wholesale copying of protected works – IOW a public record of all written knowledge. Would you object to that? More importantly, how would you prevent it?

  • http://www.polisource.com Barry

    I was searching for the answer to whether Lessig is a Libertarian, and I’m leaning against him being one. The following is from Code V. 1. I’d ordinarily think it’s an illegal copy, but given Lessig’s views on intellectual property, I’m not so certain. Just to be safe, I won’t link to it, but here’s an excerpt:

    A certain American rhetoric supported much in this reaction. A rhetoric of libertarianism. Just let the market reign and keep the government out of the way, and freedom and prosperity would inevitably grow. Things would take care of themselves. There was no need, and could be no place, for extensive regulation by the state.

    But things didn’t take care of themselves. Markets didn’t flourish. Governments were crippled, and crippled governments are no elixir of freedom. Power didn’t disappear–it simply shifted from the state to mafiosi, themselves often created by the state. The need for traditional state functions–police, courts, schools, health care–didn’t magically go away. Private interests didn’t emerge to fill the need. Instead, needs were unmet. Security evaporated. A modern if plodding anarchy replaced the bland communism of the previous three generations: neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings by fraudulent stock deals; bankers were murdered in broad daylight on Moscow streets. One system of control had been replaced by another, but neither system was what Western libertarians would call freedom.

  • Doug Lay

    Tony:

    If you truly think the lost revenue from digital sales to three libraries will outweigh the increased revenue from exposure in the Google Print index, why not just take advantage of the opt-out provision? That way you control access to your organization’s own works, but access to a century’s worth of orphan works is not blocked.

    As for WorldCat, it isn’t a full-text index. People can argue eternally about the merits of controlled-vocabulary vs. full-text, but for a certain class of searches – those where recall is more important than precision – full-text is an undeniably better option. Certainly it is beneficial to knowledge to have full-text available as an alternative.

  • WJM

    Google is making at least two digital copies of our books using one to index and giving one to the library.

    If this is so problematic for you, why haven’t you told them not to?

    https://print.google.com/publisher/exclusion-signup?gsessionid=WQ02qhgRVP4

  • http://www.psupress.org/news/news_google.html Tony Sanfilippo

    Poptones:
    I’m not at all against the creation of the database. I am concerned with how Google or your theoretical army of volunteers might compile that database. If you want to utilize someone else’s work, you either pay for it or ask permission to use it. You do not take it and then use it as the capitol to create that database. No matter how useful that database might be.

    Doug:
    Our press was one of the early participants in the Google Print for Publishers program. All of our active books where we control the copyright are included in that program. We are already benefiting from the exposure and increased revenues that that program offers. We have licensed Google to use that content. My concern is our books that have gone out of print but where we still control the copyright. We are currently trying to digitize those books and bring them back into print, both as digital books and as print on demand paperbacks. What Google is doing undermines that. It damages the market for that content.

    Opting out seems nonsensical to me. Since when do we request the potential victim of a crime to fill out a form to opt out of that crime. The compilation of that list in and of itself would take a lot of resources. We’ve been publishing for 50 years. Johns Hopkins University Press has been publishing for over 125 years. The amount of scholarship involved is enormous. Why should it be the responsibility of the university press community to do that work? As a not for profit, we simply can’t afford it. Those resources should be spent creating new scholarly content.

    When we use someone else’s work, we ask for permission and sometimes pay for it. Google should do the same. The onus is Google’s, not ours.

  • http://commonsrights.blogspot.com/ poptones

    If you want to utilize someone else’s work, you either pay for it or ask permission to use it.

    Since when does someone have to ask permission before quoting a work? Such use is written right into law – that “fair use” bit. Google is not prpvoding the works in whole, they are providing relevant quotations. They do not need more than a single copy of a book in order to do this. What if I set up a 900 number where you call for a snippet of a book and in return I read back a relevant passage? No one is getting the entire book – but you are getting a citation which you would not have without my service. I do not need ten thousand “licenses” because I need only one book to do this. The work is not being redistributed and your “rights” remain intact.

    How is this any different? That it needs to be made machine readable? Your complaints seem little different to me than those made by publishers against book scanners (which also create “a copy” in machine readable form) that allowed blind people to enjoy cheap paperback books without paying the ridiculously high prices for braille editions. I doubt you’re going to get much sympathy on that – certainly none from me.

    I just had a point I was going to make around the penniless death of Blues legend Robert Johnson. But for whatever reason we all struggle with this sort of thing from time to time, I couldn’t recall the name Johnson. So I dash into my googlebox the words “blues robert” and hit return and I get a page of citations about “Blues legend Robert Johnson.” In the time it took me to say “blues robert” I got past that mental block.

    Who should be paid for that? Robert Johnson? His archivists? The publishers who wrote about him? None of them were there to answer my question, and to do this at a conventional library would require poring over card catalogs and all sorts of nonsense – by the time I even got to the library my point would probably be forgotten.

    What if I have a quote from a passage in one of your works but I need to know the author? Are you going to provide this service? the service I require is little more than a phone book – I do not need the entire book in question, nor even a quote from it (I already have that part). All I need to know is who wrote it. Google could answer that question in one second – but it requires they know of the work. What right do you have to demand payment for such use if you do not provide the service?

    Putting these works into an indexable database is no more an infringement of your exclusive right to copy and redistribute than a phone book. Not only should anyoen willing to take on such a task be encouraged in it, they should not even acknowledge those “opt out” notices. The potential benefits to society are simply too great to do otherwise.

  • Doug Lay

    Tony:

    I hear your position, I just don’t agree with it. If opt-out is used as the standard, the project will simply not happen, at least not for the huge amount of valuable information stored in libraries for which the digital copyright owndership cannot readily be determined. This constitutes a far greater loss to the culture than the hypothetical loss of scholarship deriving from revenue losses that you talk about.

  • http://www.polisource.com Barry

    Someone wrote:

    What if I set up a 900 number where you call for a snippet of a book and in return I read back a relevant passage? No one is getting the entire book – but you are getting a citation which you would not have without my service.

    As has been mentioned more than once, there are four fair use factors (I wish this was in a full browser window so I can search for stuff more easily) and commercial use of someone else’s work is held against you according to one of them. Also, use of the entire book is held against you–if you take the fair use factors literally–whether or not you publish the entire book.

    In the particular scenario you mention, in some cases, you can call a public library that has a telephone reference service and the book and they’ll read you the citation for no charge. Otherwise search the internet, go to a bookstore, etc.

    I don’t believe a system should be created in which copyright holders have to search under every rock to see whether someone is using their (arguably entire) work for profit in a way that devalues it for the copyright owner. That’s what Google’s opt-out system creates. Luckily, I don’t think it’s legal and it probably never will be.

    Lessig wrote:

    Given the total mess of copyright records, there is absolutely no way to enable this sort of access to our past while asking permission of authors up front. Or at least, even if Google could afford that cost, no one else could.

    Nobody needs that sort of access, but why can’t Google at least take the time time to email the copyright holders printed in the books, just in case they’re able to be contacted and are able to reply? If any emails are ignored, Google could assume the material is orphaned. That would be illegal too, but it’s closer to fair and wouldn’t be impossibly expensive per book. What would it cost Google to do that per book, considering they can do it for hundreds of books per single email to a publisher? A penny? Oh, then Google might need to read a contract. Still, one contract per hundreds of books. Nothing compared to what Google would earn from Google Print.

    If it’s true that there’s “no way to enable this sort of access to our past while asking permission of authors up front,” it would probably be because Google wouldn’t get permission from the copyright holders of even the non-orphaned books, not because Google can’t afford it or because they’d need to pass impossibly high costs on to the customer after getting the permission.

    Will someone fix blockquote already! What blog software is this?

  • http://commonsrights.blogspot.com/ poptones

    …and commercial use of someone else’s work is held against you according to one of them.

    You really have to get over this “commercial use” nonsense. Commercial use or not has almost nothing at all to do with it. commercial use (opr not) didn’t matter to the girl scouts. It didn’t matter to drink or die. and it doesn’t matter here. Whether or not commerce is involved (especially since the DMCA) is essentially meaningless in any discussions of copyright infringement.

    Also, use of the entire book is held against you—if you take the fair use factors literally—whether or not you publish the entire book.

    You really need to work on those comprehension issues. I bet you didn’t even give the SRA your email address, did you?

  • http://www.polisource.com/books-magazines.shtml Barry

    Is the concept of using something for commercial purposes being disallowed unusual to you? It’s not uncommon, but interpret the law as you want. We’re talking about fair use factor number 3 below. Google wants to use people’s entire copyrighted works. They wouldn’t publish any work all at once (though we just heard that they’re giving away works as payment), but I believe their use of the entire works would be held against them. But if not, fair use law is against them anyway.

    In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

  • poptones

    You’re a bore (you can’t even read the stuff YOU quote) and I am through with you.

    Come back when you have learned to read.

  • http://www.polisource.com Barry

    You give up too soon. How about explaining it to me? I promise, I’ll try harder!

    I’m sorry for being a bore. I know the law can be boring, and that’s what I continue to get back to. Would you like me to use your style of non-legal diatribe, or should I just start with short personal attacks? I know that you combine the two, but I need to work up to that.

  • Dan Moody

    This article is really interesting, but it causes controversial opinions. Google is my favourite Search Engine, I always use it. So I think all they do, they do it right.
    I think it will be interesting and useful for its users and visitors.
    Still I consider that if they scan books, they should respect author’s and publisher’s rights at first, probably they should also consult with them and only then the book’s scanning and indexing is posiible. Otherwise it will be doubly.
    I think they should not allow to download books, because noone will buy them from the bookstores.
    But I liked it and wish Google good luck!

  • http://loan.yourmerchandise.org/index.html loan

    I agree with Justice Douglas’s point of view. We must remeber about it while producing new information for internet users and take care of google’s reputation.

  • http://www.flightschoollist.com Jack

    If you can get the books online why pay for them at the book store? I don’t thinks this is a good idea for google. They are going to put the book stores out of business.

  • Vipul Nanda

    Barry,

    I think your entire set of arguments taking away from the ‘fair use’ that is involved in the Google Print Project suffers from an understanding of the doctrine that is based on a preconceived conclusion on your part that this project is in violation of copyright laws.

    For example, a fair reading of the very site you linked to on the Four Factor test would demonstrate a more balanced view of the entire case.

    1. On the question of the ‘character’ of the use, while it is commercial, there is also the ‘otherwise transformative’ aspect of this project – clearly, Google is changing the nature of the copyrighted work, and transforming a lot in the course of this project.

    2. On the question of the nature of the work, it is clear on the website that the Google Book Project and the works involved don’t fall into the category of ‘imaginative’, but are published works, which fall on the left hand side of that column, thus weighing in Google’s favour.

    3. On the question of how much of it will be used, your ‘literal interpretation’ notwithstanding, a very small portion will be used. A snippet, irrespective of how much will be used by Google overall. Hence, again, left side of that column.

    4.On the question of its effect, it will clearly not affect the market adversely – enough and more surveys are showing a clear indication of the good Google is doing.

    All in all, Google has a strong Fair Use case. You, on the other hand, don’t. I’d also suggest reading a resource carefully before offering it as an argument.

  • http://www.amazon.com/exec/obidos/ASIN/1430208694/michaelbanks-20 Michael A. Banks

    I am compelled to echo Seth’s comment about the technology company not always being “right.”

    Just finished watching Lessig on Charlie Rose (yeah, I’m in here a long time after the fact). Some things he said about putting his work on the Web for free (and urging Charlie Rose to allow that with his shows) were pretty self-serving, and blathered from a position in which he has no vested interest in whether his work is put out free or protected by copyright and sold.

    That position is often called “moneyed.” He’s made his pile. And Charlie Rose gets paid before he even makes the programs. Lessig’s slant on copyright and making creative, scholarly, and research work avilable on the Web–particularly without the author’s permission–would be 180 degrees out of phase with his current views, were he to find himself depending entirely on the earnings of his work.

    I imagine he wouldl be monumentally and sincerely pissed off if he was flat broke and watching the incentive for people to buy his books being eroded by people who want to “share” them because it’s a cool idea. And he’d likely be producing no written work, because he’d be burning the time he might put into writing working his ass off for someone else.
    –MB