November 18, 2005  ·  Lessig

It was a “lively” event, or so I was told. I’m not a good judge of what it was. But I awoke this morning more resolved about the wrongness in the rhetoric around this issue. And of course, mornings after then are always mornings of regret.

The AAP and AG say they believe in “fair use.” If that’s so, then they must believe that someone has a right to make money using fairly the work of others. If that’s so, then they must believe that someone has the right to fairly use the work of others without permission. And so if that’s so, then if Google Book Search is fair use. not only is Google doing nothing wrong. Google is, from the perspective of the authors and publishers, doing something extra nice — giving them the permission to opt out of the index.

So the only question is whether Google’s use is “fair.” Now anyone who knows anything about the law knows that’s a hard question. Reasonable people may differ about it. But the frustration I consistently feel with the position of the AAP and AG is that the reasons they offer for why Google’s use is not fair would mean that practically no use would be fair.

E.g., Nick Taylor’s complaint was that Google was profiting on the work of others. But that’s true with every commercial use that’s also a fair use. If Taylor’s theory were correct, you couldn’t make money from a book that fairly quoted another author. Or a film that fairly included clips from another film. That would be a radical shrinkage of “fair use.”

Or, e.g., Allan Adler complained that Google hadn’t asked permission. But again, you don’t need to ask permission to use a work fairly. If Adler’s theory were correct, that too would mean a radical shrinkage of “fair use.”

Or finally, in the part of the session closest to the actual law of fair use, Adler said the reasons this use was not fair was that there was a “potential” market that Google was just taking. What was that market? The market in licensing the use of building a fully searchable index of books. But you can always hypothesize a “potential” market. And if that’s all that it took, again, there would be a radical shrinkage of “fair use.”

Adler’s last point made me recognize something I hadn’t seen before. Both sides of this debate have their own “potential” defense. They say this is not “fair use” because they can imagine a “potential” market within which this use could be licensed — even though there’s no such market just now, and neither had anyone thought of such a market even two years ago. (And don’t start blathering about the market to search inside a book — that’s a very different functionality from what Google is offering. Google’s is an index into the book; it doesn’t give you a book to read.)

We have our own favorite “potential” defense — a technology “capable” of substantial non-infringing uses should be free of secondary liability. So we said Grokster was a such a technology, even if less than 10% of the uses were actually non-infringing. They said that’s not enough of a potential.

Both sides might learn something from the criticism of the other. If fair use is lost just because you can imagine a market, then there is no fair, or free use, in a digital age. Every use triggers copyright law, because every use is a copy. And there’s no limit to the ability to imagine a market, so then every use would have to be with permission. That’s the same point made against Sony — if all it takes is imagining a non-infringing use, then there could be no such thing as secondary liability.

Our side, I take it, is happy with the implication that there is no secondary liability. Their side, I take it, is happy with the implication that there is very little fair use.

Both sides suggest to me that we need to rethink fundamentally how this system of speech regulation is regulating.

  • three blind mice

    The AAP and AG say they believe in “fair use.” If that’s so, then they must believe that someone has a right to make money using fairly the work of others.

    that is one hell of a leap professor. under fair use we have a right under fair use to make a phtocopy of a page of a copyrighted book. we have a right to use brief excerpts from a copyrighted work in a longer book or article.

    If that’s so, then they must believe that someone has the right to fairly use the work of others without permission.

    in certain limited instances, yes, of course.

    And so if that’s so, then if Google Book Search is fair use.

    huh? c’mon professor. that’s one huge leap of logic. you can do better than that.

    google are not making photocopies, they are not using “brief excerpts” what google are doing is making wholesale copies of entire works for commercial gain. i fthe search engine is to be effective, the ENTIRE TEXT text has to be made available to the public, even if only brief excerpts are displayed.

    not only is Google doing nothing wrong. Google is, from the perspective of the authors and publishers, doing something extra nice — giving them the permission to opt out of the index.

    giving them the permission to opt out. how nice of them. put the burden on the author instead of the company that stands to profit.

    google doing nothing wrong? they way we see it, google is doing it all wrong. instead of showing a leadership in technology development that respects the rights of authors and artists, they run roughshod over these rights in the name of maximizing shareholder vaule.

    to paraphrase al sharpton “google gets the trickle, and authors get the down.”

  • J Reid

    My girlfriend and I attended the discussion last night, and I have to say that we thoroughly enjoyed it. I’ve been following this debate since its onset, so I arrived already agreeing with your position on the matter. I was pleased that my girlfriend left with the same opinion. I have to say that I was also pleased that your applause was noticeably louder than the other side’s.

    But even though my mind had been essentially already made up, I was still able to take something away from the debate. I’m now even more firm in my position. Because if these hollow arguments are the best that the publishers/authors can advance…arguments that as you say would result in no digital-age fair-use at all…then it’s even more important that Goliath/Google actually _wins_ this battle.

  • brian thomas

    Don’t we have a “humunculus” test somewhere in patent law? I don’t fully understand it, but the idea seems to be that if there were a little man inside the device, and he could do what the device does, then the device is not patentable.

    Not a clean transfer to copyright, I admit; not that it matters. But if I, like Google, had simply read all the books in a library and could tell people where a particular combination of words could be found in all those books, quoting some of the surrounding material so as to understand its context, no one would think to accuse me of copyright infringement, even if I either charged for the service or for related advertising. Indeed, a good librarian does just that, minus the profit angle, because the library is usually supported independently of its users, as a public good.

    Of course, doing that as efficiently as Google’s machinery can is far beyond the capacity of any single human, and hiring enough people to provide such a service would be far more costly than it would be worth. Nevertheless, if someone did launch such a service, what author would be offended by the “loss of control” of his work, or have any of the other objections that have been raised?

    Would any publisher, for that matter, object to this use of their products? Considering that the costs of marketing a book are usually comparable in scale to (or even greater than) the printing costs, to the extent that many books never see print because they don’t expect to recover those costs, or they may be printed but never widely distributed because a lack of marketing support means book sellers won’t risk the inventory costs?

    That’s just a digression, though, into the question of whether anyone is actually harmed, or has any real reason to object if their motives are truly what is claimed. The question of whether this constitutes fair use probably hinges on other matters.

    So telling others details of where certain things can be found in books that I’ve read – even quoting small sections – is firmly held to be fair use in court and in public opinion.

    Because this is generally held to be beneficial to the authors and publishers, as evidenced by the large sums that they normally pay to get people to do such things for them, I don’t think that any argument that the scale of the service, or the fact that it’s a source of profit, would hold water.

    The only thing that remains is the one that has so offended the open-source software community about current patent policy – that the mere fact that the service is implemented by a computer somehow makes it different. That one is so nonsensical that there’s no reasonable doubt that a court would… oh.

    Hmmm…

  • Nick

    I tried to watch the webcast of the debate last night but it was asking me for a login and password. Oh well. I guess I will watch it once it is posted to the archive.

  • Matthew Saroff

    Someone tell me how Google is different from Bartlett’s Familiar Quotations.

  • http://sethf.com/ Seth Finkelstein

    Matthew: I just wrote a post about that:

    Google Print – Fair Use vs “Microsales”

    http://sethf.com/infothought/blog/archives/000937.html

    “It’s about “microsales” (really, micro-commercial use)

    What’s new, in an evolutionary sense, is that Google has found a way to make large amounts of money off accumulated small sales. … Has anyone explored that some sort of mechanical license might be better than winner-take-all?”

  • Johnny O’Neal

    It was great to attend the debate, and it definitely shook up my perspective on the issue. It was exciting to be in a room that, judging by the applause, seemed evenly split on the issue. (I was sitting next to the distinguished-looking old man who occasionally intoned “Boo!” when you were talking.)

    But if there was one argument that rang hollow for me, it was the back-and-forth between “this project contributes to the public good” and “Google’s doing this to make money.” Fair use exists to serve the public good, but plenty of things that would be good for the public shouldn’t be legal. And as you point out, making money from a use doesn’t make it unfair. Many profitable books on writing, for example, use passages of other authors’ works as a framework for providing advice. The authors of such books rely on others’ content, but they are adding more than they’re sampling. Similarly, Google’s investment in technology (and logistics) makes each Book Search its own new work.

    With that understood, Adler’s only valid argument seems to be that initial copy: after all, isn’t Google breaking the law the first time they copy and (internally) distribute a copyrighted book? It seems to me that’s a point where the law is currently on Adler’s side. “Personal copies” seem to be legal in some cases, but Google can’t really argue that the copy they’re making is personal.

    Aside from that speedbump, here’s how I’d frame things: Google isn’t copying books. Google is transforming them into information. Along the way, they are intentionally breaking books down into fragments too small to be copyrighted. As Brian Thomas points out above, Google isn’t making money off of the books; it’s making money off knowing what’s inside books. It’s hard to imagine a fairer use than that.

  • http://spaces.msn.com/members/act2 Alfred Thompson

    I think that it boils down to the publishers just not trusting Google. In their hearts they believe that some day in the future Google will make full text of their books available. Or perhaps they worry that people will hack, perhaps even with Google’s help, the search in ways that will grab snippits of books and reassemble them whole. If they trusted Google to do what they say there would not be an issue. But there is no good reason to trust Google, especially with the way they have gone about doing this so far. This strikes me as a valid concern.

  • http://www.screaming-penguin.com cooper

    is there a link to the audio anywhere?

  • http://en.wikipedia.org/wiki/User:Jamesday James Day

    Seth,

    It’s perhaps worth remembering that thee are moves to end mechanical licensing, perhaps because someone could use that to produce a work of superior quality: without copy protection, or root kits and apparently copyright infringing software as part of it.

    three blind mice,

    There’s no inherent prohibition on reproducing the whole of a work as part of a fair use situation. The Sony, cable television and player piano situations did just that. The difference here is that it’s impractical for a single reader to obtain the whole of most works, so it’s unlikely that the net effect on sales will be negative, because the snippets won’t be able to replace the original work.

    Potential markets are interesting. There’s a potential market for distribution of media via file trading networks where people use their own bandwidth and wait arbitrary times to obtain works of dubious quality which may have viruses or other attacks attached to them but it’s not being exploited today. It seems unlikely to threaten a reasonably priced and more official channel, which simply doesn’t exist today, making comparison very difficult. The nearest licensed channels seem to be of inferior quality (both resolution and copy protection presence) and unduly high price, so it’s unsurprising that they aren’t very successful.

  • Jonathan Butler

    The objection to Google Print seems to be hinged not on the use to which their work is put (enabling the fair use of copyrighted works by users of Google Print), but rather the means by which their work was created: by making an electronic “copy” of each work in order to index it. The objection, as TBM says, is that Google “is making wholesale copies of entire works for commercial gain” in this process. This is not quite correct. They made a single transient copy of an entire work, substantially transformed it (by mangling it into an index), and are now selling access to their transformed version.

    The amount of the original work used is only one of the four factors usually used to determine whether a use is “fair”; another is the degree of transformation of the original work. This is the premise by which parody survives: most parodies are transformations of whole or nearly whole works. Their degree of transformation is what makes them fair use.

    I would argue that the transformation of a collection of ink-covered pages into an electronic database that is capable of reproducing only small fragments of the original works (compatible with generally accepted standards for fair use) is a significant degree of transformation. Not only that, but this new work does not impinge upon, and in fact could increase the market for and value of the original works, satisfying a different criterion for fair use.

    We seem to have a precedent for allowing transient copies of information in the digital world, and of transforming copyrighted analog content into a convenient digital form for our own use (DVRs and sampled LPs come to mind). The only problem I have with Google Print is that they didn’t buy a copy of each book (still in print) that they indexed. Would it be a violation of fair use for me to digitize an entire LP (which I have paid for), then use a small sample of it in a recording I distribute for profit? Or to use OCR to scan in a book I’m reviewing, then to publish that review for profit, quoting only small portions of the original work?

  • http://en.wikipedia.org/wiki/User:Jamesday James Day

    Jonathan.

    We already have a better fair use situation, one subsequently endorsed by Congress in the form of the DMCA/OCILLA search engine protection, which recognises the inevitable necessity of having a copy of a work to produce an index. It also provides a removal mechanism, rather like that which Google is providing.

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

    Forget Google for a moment…

    I have a solution to the Kansas problem!

    Sorry, but I couldn’t figure out how to play the stream with my free system so I had to spend my time on other issues. Would love to read a transcript!

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

    Of course Nick Taylor is right and you are wrong under current American copyright law. The question if the use is commercial or not is one factor in deciding about fair use. It is not the only one, but you can’t very well deny that it is right there as the first factor in Section 107.

    Your objection to thinking about “potential” markets is also not compatible with factor four in Section 107, which uses exactly that language. This is not something that Allan Adler just invented at that debate.

    And the question under factor four is if you are talking only about the market for selling books or also about the market for search.

    The fact that Google is paying publishers in the legal part of their project (giving them an “undisclosed” share of their advertising revenue) clearly shows that there is some value in the search market and that Google does not mind paying copyright holders for the value they provide.

    So why again should Google have the right to get that value for free in their Library project, when they are paying for it in the Publisher program?

  • icecow

    Gooliath vs Goliath

  • icecow

    “So why again should Google have the right to get that value for free in their Library project”

    Because they scanned in all of the books and offer a service free to the public.

    Because they are moving society forward instead of locking society to a standstill by childishly bickering over intellectual ‘property’ as though it were physical property.
    ip is not the same as physical property and I think some people are going to end up with pychological problems down the road from the MPAA ‘personal property’ case.
    maybe in 200 years ip will be considered a mental illness in history books

    perhaps google should be able to profit on the sales of ALL books for 14 years! What comes around goes around. Or should it be ‘the life of the Google Company plus 7oO years’

  • anon

    You guys should check out a documentary on bittorrent called The Oil Factor.

    http://wwww.theoilfactor.com

    You can find it here:

    http://isohunt.com/torrents.php?ihq=oil+factor%2C+the&ext=&op=and

    Click on “Oil Factor, The” to download it. You should choose that one because I am hosting that file and I have a ton of bandwith here.

  • http://sethf.com/ Seth Finkelstein

    James Day: Oh, I’m under no illusion that the idea of mechanical license would be wildly accepted. I just think that as a theoretical solution – heck, even as some punditry that’s better than essentially repeating the plaintiff or defendant press releases – it’d be worth some discussion.

    General comment: See the following skeptical analysis (not by me, just passing it along) for some arguments against the application being fair use.

    I don’t know that Google is necessarily wrong – but I would say that they are far from obviously being right.

  • Pissed Off Author

    I am an author who makes money from selling my work. If google want to make money from my work, they should ask my permission. Pure and simple. Just because they are the first with the technology to build an index over all books (actually, they are not, they are just the first to have the arrogance to do it without permission), does not give them the right to steal my content for their own profit. Someone else may come along and offer me a better deal for using my content in this way. I wrote the stuff, I should get to control, within fair use, how it is used. Copying the whole thing into an index is not fair use.

    Google’s arrogance and duplicitousness is thoroughly exposed by their response to requests for an opt-in program, rather than opt-out as now: “It would be too hard to ask permission of all copyright holders”. BS – if you can scan 10 million books you can make a few thousand phone calls to copyright holders. We’re not fools google; you don’t want to ask permission because you already know what the answer will be.

    Lessig, you sit on a fat tenured salary. You don’t worry about where your next dollar is coming from. Struggling authors do worry. You’ve proven yourself to be nothing more than a sock-puppet for the wealthy corporate thieves at google. I hope they paid you handsomely for your soul.

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

    Larry,

    Could you please put this in more/different words? I’m not sure what you mean here…

    What was that market? The market in licensing the use of building a fully searchable index of books.

    “use of building” is where I’m not clear as to what you mean. Do you mean the licensing of the patents/copyright that will serve as “protection” over the technology used to access the database?

  • three blind mice

    Google isn’t copying books. Google is transforming them into information. Along the way, they are intentionally breaking books down into fragments too small to be copyrighted. As Brian Thomas points out above, Google isn’t making money off of the books; it’s making money off knowing what’s inside books. It’s hard to imagine a fairer use than that.

    what’s inside books, Johnny O’Neal is what makes books written by some authors worth more than books written by other authors: it’s certainly not the ink.

    and that’s the point: google should not be able to use the value created by authors without the permission of the author. the civilised society protects its artists and does not allow corporate predators to prey on writers of books.

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

    On a side note, TBM, you said:

    “And so if that’s so, then if Google Book Search is fair use.

    huh? c�mon professor. that�s one huge leap of logic. you can do better than that. “

    Realize that he didn’t have a leap of logic here. You missed the word “if.” He said if Google Book search is fair use…etc.

    Don’t worry, I missed it the first time I read it as well.

  • anonymous

    Professor, you are a remarkably dim shill pimping for vested interests that willfully choose to unlawfully profit from the work of American and international creators.

    Selling access, or advertising, etc., to protected works without permission or compensation is not morally superior to the same blatant copyright infringement of selling the work. These are simply new emergent digital distribution models that dramatically change markets. It is luddite in the extreme, professor, to falsely surmise that new distribution models render copyright protections obsolete. Technological advances (and abuses) do not validate stripping authors of the economic and moral rights to their works.

    Google is not “the next best thing since, well, Google.” The “best thing” is original genius and creativity, professor. Protection of authors’ rights is the foundation of knowledge and culture. Access to the fruits of intellect and creativity cannot be separated from the economic rights of authors without harming society and civilization. An enlightened culture upholds copyright protections and does not justify impoverishing producers for the benefit of users.

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

    anonymous:

    I’m curious, how is Google “impoverishing” authors?

  • http://br.endernet.org/~akrowne/ Aaron Krowne

    Three blind mice:

    Your name is exceptionally apropos, by the way.

    > > The AAP and AG say they believe in “fair use. If that’s so, then they must believe that someone has a right to make money using fairly the work of others.
    > that is one hell of a leap professor. under fair use we have a right under fair use to make a phtocopy of a page of a copyrighted book. we have a right to use brief excerpts from a copyrighted work in a longer book or article.

    Yes, and Prof. Lessig’s point was copyright has absolutely nothing to do with the right of third parties to make money from these things. I can put brief excerpts in a review and then sell the review.

    > > If that’s so, then they must believe that someone has the right to fairly use the work of others without permission.
    > in certain limited instances, yes, of course.

    And your industry sees a chance for a massive profit grab, without having done a lick of innovation or work of any kind to earn it.

    You people are going to lose, because even if you win this lawsuit, book search will exist for public domain and Creative Commons materials. And we (the creatives) will stop making all-rights reserved materials. And eventually, your copyrights will expire.

    > > And so if that’s so, then if Google Book Search is fair use.
    > huh? c’mon professor. that’s one huge leap of logic. you can do better than that.

    Did you graduate from the Bill O’Reilly school of debate?

    > google are not making photocopies, they are not using “brief excerpts” what google are doing is making wholesale copies of entire works for commercial gain. i fthe search engine is to be effective, the ENTIRE TEXT text has to be made available to the public, even if only brief excerpts are displayed.

    Every use is a copy in this age. This is a completely invalid objection.

    And you’re illegitimately defining “indexing” as “being made available”. Rhetorically very dishonest. I guess we’ll have to see what a judge thinks.

    > > not only is Google doing nothing wrong. Google is, from the perspective of the authors and publishers, doing something extra nice– giving them the permission to opt out of the index.
    > giving them the permission to opt out. how nice of them. put the burden on the author instead of the company that stands to profit.

    How soon we forget. The burden of managing copyrights is supposed to fall on the copyright holder. Copyright was never supposed to be a completely-automatic, perpetual cash machine. Since what Google is doing should be a fair use area, they arguably are being “extra nice”.

    > google doing nothing wrong? they way we see it, google is doing it all wrong. instead of showing a leadership in technology development that respects the rights of authors and artists, they run roughshod over these rights in the name of maximizing shareholder vaule.

    I think Lessig has made it clear that these rights–to restrict any kind of copy–really should not exist unqualified in the digital age. At least, he has made a compelling argument for it. Stop acting like its 1950 and there’s no reason to question the point.

    If the authors win, what prevents Google from having to seek permission and provide remuneration from the authors of every web page they index? After all, they’re copying and “making the whole content available” to searchers (in fact, for this, they even let you see the entire page from their cache). And copyright law sees no difference between web pages (some are quite substantial, you know) and books.

    But I guess you people would be ok with essentially shutting down the internet. Too much value in the commons. Nevermind the massive, unprecendented-in-human-history value to society we’ve seen created in the past 10 years.

    > to paraphrase al sharpton “google gets the trickle, and authors get the down.”


    This is nonsense fallacy ad miseracordium. Boo hoo, the poor authors… in all likelihood, authors with searchable books will earn a massive boost in sales. Again, this is an empirical question, and at the worst, some will benefit and others will see no relative loss.

  • Pissed Off Author

    “If the authors win, what prevents Google from having to seek permission and provide remuneration from the authors of every web page they index? After all, they’re copying and “making the whole content available” to searchers (in fact, for this, they even let you see the entire page from their cache). And copyright law sees no difference between web pages (some are quite substantial, you know) and books.”

    This is the argument that that supposed legal genius Lessig likes to run too. Well, we’ve seen before what true legal geniuses think of Lessig – take his last spectacularly successful performance in front of the Supreme Court [sarcasm alert].

    There’s a simple counter to this argument: most web page authors want their pages indexed. If not, they can exclude robots with a robots.txt file. Apache ships with robots turned on by default, so every web author that uses apache (some 60% I believe), has to opt-in by removing the robots protection.

    And regardless of robots.txt considerations, hardly any “Terms of Use” clauses on websites prohibit indexing or other forms of robot activity, whereas most copyrights on books explicitly prohibit conversion to a digital form.

    Oh, but I forgot, Lessig is a legal genius and google only have our best interests (not profit) at heart and “information wants to be free”. Silly me. Pass the bong, man…..

  • Joseph Pietro Riolo

    To Pissed Off Author:

    You should read the U.S. copyright law before you
    accuse Google of any copyright infringement. Google
    makes electronic copies for libraries as allowed
    by Section 108. Then, Google creates indexes to
    the works in the libraries as allowed by definition
    of “supplementary work” in Section 101. Finally,
    Google shows only snippets of the works as allowed
    by Section 107.

    Authors like you are whining not because Google
    is doing copyright infringement but because
    Google is doing the legal way to earn money
    based on permissible uses of their works.
    If you don’t like what Google is doing, write
    a letter to your Congress people and tell them
    to change copyright law or whatever.

    Authors should realize that they don’t have the
    absolute monopoly on all uses of their works
    forever.

    Joseph Pietro Riolo
    <josephpietrojeungriolo@gmail.com>
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Pissed Off Author

    Joseph Pietro Riolo,

    Geez, what a devastating demolition of the case against google. Why don’t you present it to the plaintiffs? I am sure once they see the clarity of your logic they’ll drop the case like a hot potato.

    For google’s service to be useful it requires indexing the entire work, and making snippets of the entire work available (even if they restrict it so that a single user cannot access the entire work in a single session). That is clearly very different from quoting excerpts in reviews, or for scholarly purposes, or for any of the other purposes that were envisioned when the US copyright code was drafted, whatever you or the other google apologists say.

    Of course authors don’t “have absolute monopoly on all uses of their works forever”, but they have some control over how their works are used – that is the point of copyright law. Without it there is little incentive to be an author. Few of us have the privilege of a guaranteed income such as tenured faculty like Lessig, or billionaires like the folks at google, so we need to make a living from our labor.

    I don’t doubt that what google is doing will be of great public benefit. But then stealing all Picasso’s paintings and putting them in the public domain would also be of great public benefit. I also don’t doubt that it will be of massive private benefit to google. I can’t think of another supposed “fair use” of copyrighted works that has ever created such a large private benefit.

    So given that in large part “fair use” was not intended to deprive authors of a fair share in the private proceeds generated from their works, and given that electronic search indexes (and the business models based upon them) did not exist at the time the copyright laws were drafted, I will be very surprised if the court does not tell google to at least ask copyright holders for permission. Google can then follow the time-honored tradition of all corporate bullies and lobby congress to legalize their theft.

    Of course, that’s not the way google and Lessig see it, but google has become increasingly arrogant with its success, and Lessig does not seem to realise that he is being used.

    If google want to index all my works, they can come ask me. It is pretty simple. Eric, Larry and Sergey, all you have to do is pick up the phone. I’ll be reasonable – I won’t charge more than a few pennies per search hit involving my work.

  • Pissed Off Author

    “and neither had anyone thought of such a market even two years ago. (And don’t start blathering about the market to search inside a book — that’s a very different functionality from what Google is offering. Google’s is an index into the book; it doesn’t give you a book to read.)”

    Apart from being rude (who is blathering here?), this is just plain false. The idea of a global index of all books has been around at least as long as the concept of search indexes themselves (and arguably since the invention of writing). And the business model of making money from auctioned targeted ads was not invented by Google – they just stole the idea and then settled the patent violation case with overture. Just like all corporate bullies.

    And exactly how is what google doing any different at all from search inside the book?? Both are inverted indices of the books’ content, both allow querying the inverted index with a fairly standard query language, and both show excerpts in response to the queries. There is one key difference though, Amazon asks permission from copyright holders before including material in SITB

    (oh yeah, silly me, I forgot, the other difference is that google, well, you know, is just google so everything they do must somehow be new or better or well, just right, you know, because they’re not “evil”)

    You really need to do your homework Lessig, your blathering is giving open source and academia a bad name.

  • Joseph Pietro Riolo

    To Pissed Off Author:

    The U.S. copyright law does not say that I need
    to ask you for permission to index all of your
    works. I can simply create index to your works
    without your permission, sell index to companies
    and people and earn money for myself without
    sharing it with you. You are putting your own
    opinions into the law.

    The problem with your logic is that just because
    Google is able to show snippets anywhere in a
    book means that it is not fair use. That is not
    how it works. Even I have a book (in paper)
    and even I am able to share snippets anywhere
    in the book to anyone who ask for them, that does
    not mean that it is not fair use. Fair use focuses
    on the outcome. If Google turns out that it is
    careless about showing too many snippets to a
    person, it will lose the defense of fair use.
    But, if Google is very careful not to show too
    many snippets to a person, it can claim the
    defense of fair use.

    The plaintiffs in the lawsuits obviously do not
    want to talk about the role of library in the
    U.S. copyright law and index as a separate work
    in the U.S. copyright law (you don’t see them
    talking about Section 108 and meaning of
    “supplementary work” – they are hoping that
    the people will remain ignorant of them).
    We will see what arguments that the plaintiffs
    and Google will use in the court.

    Joseph Pietro Riolo
    <josephpietrojeungriolo@gmail.com>
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • http://www.ime.usp.br/~is/ Imre Simon

    I realize that the controversies around Google Print are going to be resolved by whatever interpretation will be given to the current laws in the USA.

    In spite of this I raise the question of the eventual inapproriateness of this situation. We are talking about a universal index of all books ever published to date. Technology allows us (or better, allows Google and some few other big players) to build such an index which can be made available to everybody on Planet Earth for consultation. This is a major technological advance with unpredictable consequences on many aspects of human society, not the least of which are its cultural consequences.

    In my view, we just can’t afford not to experiment how an innovation of this magnitude influences our lives.

    However, the innovation itself raises many new questions, not the least of them being whether it is fair and advisable to allow to develop a virtual monopoly over the control of such an enormous and basically stable corpus of human knowledge? Shouldn’t this corpus be considered a commons free to everybody to try to innovate on top of it? Shouldn’t we try to take measures in order to legally enable the construction of such a commons by cooperative efforts like the totality of the free open source software we have today or like the Wikipedia, which is changing the nature of the social concept of an encyclopedia?

    Indeed, in the case of Google Print (think of the concept and not of Google’s ownership of the knowledge base) it is not even clear (to me, anyway) whether such a corpus can be built cooperatively on an open basis. Who would be responsible for not showing more than snippets of the books under copyright?

    Anyway, I want to come back to the aspect I raised in the beginning:
    it is not fair, in my opinion, to resolve these essentially new situations just by relying on the current legislation which was made without having in mind these new possibilities. But in what other way could the controversy be arbitrated?

    Isn’t this a case of what Professor Lessig called a “latent ambiguity” in his book CODE and other laws of Cyberspace?

  • Pissed Off Author

    Joseph Pietro Riolo,

    The problem justifying google’s activities by analogy with libraries is that they are completely different beasts. I have to physically enter a library to access the items – there is no dissemination of the content of any of the works simultaneously to all people on the web. If 10 people want to simultaneously borrow a book from a library, the library has to purchase 10 copies of the book. Because of the public dissemination, publishers often charge libraries more for the same items than they do the consumer – for example, academic journals. With google print, they are not even given the option.

    The analogy from libraries to google print is very tenuous.

  • http://ddmcd.squarespace.com/display/ShowJournal?moduleId=140085&categoryId=22803 Dennis McDonald

    I’m glad to see the definition of “fair use” debated so vigorously. But I don’t understand how the public benefits of availability of information through technological means reduces the rights of the author. Nor do I understand why an author should not be given the choice of whether he or she should subsidize a for profit commercial service’s advertiser supported service.

    Also, to equate what Google is doing with what a book reviewer does in quoting individual parts of the book being reviewed is just silly.

    I would like to see a discussion of the reasons WHY Google is not seeking permission in all case before copying and indexing. Is it really because of the “orphan works” issue, or is it also because seeking prior permission is inconvenient and expensive?

    In the real world, this line of inquiry is called “following the money.” I learned long ago this was the appropriate way to frame many “copyright” arguments.

  • http://sociedadeanonimasgps.blogspot.com/ Ninocas

    Congratulations! Nice blog! Greetings from Azores Islands.

    http://sociedadeanonimasgps.blogspot.com

  • Copyright lawyer

    Mr. Riolo: Perhaps you’ve read the U.S. copyright law, but you don’t appear to have understood it. All that section 101 says about a supplementary work (besides saying what it is) is that a work may be a work made for hire when it has been specially ordered or commissioned for use as a “supplementary work” (or as one or 8 other kinds of works) and where there’s a written instrument signed by the person who created it and the person who commissioned it. What Google does is not “allowed” by the definition of “supplemental work” in section 101; whether or not Google is creating a supplemental work, its status as a supplemental work give Google no privilege whatsoever vis-a-vis the authors of the indexed works.

    And the copies Google is making for libraries are, by and large, not allowed by section 108. Section 108 allows libraries to make electronic copies of published works (and presumably all of the books Google is digitizing are published) only:

    “for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if �

    “(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and

    “(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.”

    Hardbound books aren’t (yet, anyway) an obsolete format.

  • http://www.coises.com/ Coises

    Prof. Lessing notes that:

    Nick Taylor’s complaint was that Google was profiting on the work of others.

    Only in a peculiar, strained sense would Google’s project represent “profiting on the work of others.” Certainly, a searchable index of books would have no value if books had no value; but the index does not derive its value by building on the value of particular books, the way a compilation, derivative work, etc. does. The “added value” is entirely the result of Google’s own labor, and it is an addition to the value of literature taken as a whole; it doesn’t stem from some latent but as yet untapped value of the individual, original works. It’s quite a stretch, I think, to call that “profiting on the work of others.” TV Guide, for example, depends on the technology of television broadcasting, the effective programming strategy of broadcasters and the value of television programs to the consumer: without all of these, the climate in which a TV Guide would even be possible, let alone profitable, could not exist. Nonetheless, few of us would hold that the magazine is “profiting on the work of others”: the works of others merely establish the context in which the service it provides is worthwhile.

    Adler said the reasons this use was not fair was that there was a “potential” market that Google was just taking. What was that market? The market in licensing the use of building a fully searchable index of books. But you can always hypothesize a “potential” market.

    Sometimes it is clear that existing and/or (plausible) potential markets are likely to be non-trivially disrupted by some other activity. (For example, it’s difficult to argue with a straight face that unrestrained file-sharing doesn’t have the potential for significant interference with markets that are protected under copyright law independently of the existence or legality of file-sharing itself.) In other cases, when it is not possible in practice to collect a fee for some use, or when the fees users would conceivably be willing or able to pay would be insufficient to offset the costs of administering the licensing, that activity does not constitute a potential market. Were a magazine publisher to sue a kindergarten class, claiming their collages using pictures from old magazines were “derivative works,” surely a fair use defense would prevail: the activity does not interfere with any existing or potential market, nor is it reasonable to believe the students or the school will be persuaded to pay for the privilege. Simply rendering illegal or unfeasible an activity that does not interfere with any source of reward for authors and inventors is not the intention of copyright (as it contradicts the constitutional mandate to “promote the Progress of Science and useful Arts”).

    When neither of the above conditions holds — when there is a plausible potential market, but that market consists precisely of granting a license to perform the very activity against which the reservation of privilege under copyright is sought — the assertion of the existence of a “potential market” begs the question: if law reserves the right to license the activity in question to the copyright holder, there is a potential market; otherwise there is not. There is no potential market for a license to be an “authorized reseller” of a particular book because law does not reserve the right to control resale to the copyright holder; hence, who would pay for such a license? There is a market to be the first artist to record a song because the law reserves the right to authorize the first recorded performance of a musical work to the copyright holder.

    It appears to me that while the “potential market” test may be meaningful in deciding some questions, it can be of no help in deciding this one.

  • Joseph Pietro Riolo

    To Pissed Off Author:

    Certainly, Google is not a library. What Google
    does for library is permitted by Section 108.
    However, Section 108 does not permit Google
    to retain the entire electronic copies of the
    works. So, Google decides to go through index
    and fair use to show snippets. Libraries are
    permitted to lend entire books to patrons
    but Google can’t do that.

    I don’t know if you are correct about publishers
    charging libraries more than the consumers.
    Some years ago, I wanted to donate some
    money to my local library to buy a specific
    book that I wanted it to acquire. The librarian
    there said that she could buy the book at
    cheaper price and so, I sent her a check to
    cover the cheaper price.

    To Copyright lawyer:

    What Section 101 shows is that supplementary
    work is different from derivative work. The
    authors have exclusive right to derivative
    work but do not have exclusive right to
    supplementary work. The authors do not have
    exclusive right to introduction, conclusion,
    illustration, explanation, revision, commentary,
    foreword, afterword, map, chart, table, editorial
    note, musical arrangements, answer material for
    test, bibliography, appendix, and index.

    If I write a foreword to a book and sell the
    foreword to the publisher, I can do it without
    the permission from the author.

    If I draw a map to help readers understand
    the journey in a novel, I can do it without
    the permission from the author.

    You are focusing on Section 108(c). I am
    referring to Section 108(a). 108(c) allows
    libraries to have three copies in some
    limited cases while 108(a) allow libraries
    to have only one copy in more cases.

    Joseph Pietro Riolo
    <josephpietrojeungriolo@gmail.com>
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Pissed Off Author

    Joseph Pietro Riolo,

    Google does retain an entire electronic copy of the books they index; without them they can’t show snippets in response to all possible queries. That is precisely the problem: if google only retained a “fair use” portion of the work (it is 10% for example under Australian Law), their search index would be useless because they would not be able to display snippets in response to most queries, and without snippets, all they could tell you is “this book contains your query term, but we can’t show you the context” – not very useful.

    Coises – the “potential market” test should probably be applied counterfactually with reference to the historical context in which the copyright laws were originally drafted. That is, if google-style indexing had been possible at the time, would it have been prohibited? Since most public dissemination was prohibited, and considerable restrictions were placed on the allowed public dissemination (libraries), I think it is likely that google-style indexing without the copyright holder’s permission would also have been subject to strict constraints had it existed at the time.

  • http://br.endernet.org/~akrowne/ Aaron Krowne

    If the authors win, what prevents Google from having to seek permission and provide remuneration from the authors of every web page they index?

    This is the argument that that supposed legal genius Lessig likes to run too. Well, we’ve seen before what true legal geniuses think of Lessig – take his last spectacularly successful performance in front of the Supreme Court [sarcasm alert].

    With all of this ad hominem trolling from you and the rest of the “author contingent” on here, I’m not sure I ever want to be counted in your ranks, no matter how many books I write.

    And, please, dont act like the supreme court is infallible. Appeal to authority is no substitute for correct reasoning.

    There’s a simple counter to this argument: most web page authors want their pages indexed. If not, they can exclude robots with a robots.txt file.

    Oh really? So its ok because they can opt out? Where else have we heard that–oh yes! From Google Print! Make up your mind, does this excuse “copyright infringement” or not?

    Apache ships with robots turned on by default, so every web author that uses apache (some 60% I believe), has to opt-in by remving the robots protection.

    I love how you accuse Lessig of shoddy reasoning, yet you can’t even keep copyright issues separate from how a piece of software happens to be configured when it is “shipped”. No, the copyright issues are exactly the same for books and web pages. Its just that book authors aren’t used to being subjected to the same technical treatment as web page authors, and they see a chance for a profit grab.

    I have yet to see how the authors are losing anything material here except control over a new kind of use. They haven’t argued that they will do worse off financially if people can find their books via search. They haven’t successfuly argued that Google’s plans aren’t covered by fair use; indexing books is as fair as web pages, and falls within the letter of the law if the whole content is not provided. Really the most powerful “argument” as been of the form “Google is going to profit.” And that’s no argument at all.

  • http://sethf.com/ Seth Finkelstein

    The anti-Google argument is that Google is, itself, making commercial use of a large portion of the book in aggregate. See the skeptical analysis, and Karl-Friedrich Lenz’s point above. The key issue issue is do you look at the usage per-transaction, or overall? A court could go either way.

  • three blind mice

    The anti-Google argument is that Google is, itself, making commercial use of a large portion of the book in aggregate.

    as usual, seth finkelstein, boils it down to broth. this point seems undisputed.

    The key issue issue is do you look at the usage per-transaction, or overall? A court could go either way.

    that may be the key legal issue, but here again the legal debate is merely a proxy for the underlying economic debate over the future of the internets. and it’s the same old story again and again: “to what extent should ordinary commercial considerations extend into cyberspace?”

    some, it seems, believe that requiring google to engage in ordinary commericial licensing of content would amount to “shutting down the web.”

    others, like us three blind mice, believe in a radical concept called “market efficiency.” we say that the imposition/introduction of ordinary commercial obligations – such as copyright licensing – is PRECISELY what the internets needs in order that it may reach its full potential.

    it seems obvious, to us mice anyway, that requring google to follow the law and forcing them into commercial negotiations with publishers will result in a better solution on the whole than giving google an expedient non-market solution?

    and google? google sounds like general motors complaining that safety belts make their cars too expensive.

  • Joseph Pietro Riolo

    To Pissed Off Author:

    It is not necessarily true that Google retains
    the entire electronic copies of books. That
    is for court to find out but having a degree
    in computer science, I can imagine how Google
    can avoid intact electronic copies through the
    use of database of words and phrases and (again)
    index to them.

    To Three Blind Mice:

    Your abuse of analogy has not subsided. Your
    analogy between Google and General Motors is
    fallacious.

    The authors do not have right to any economic
    benefits beyond the first sale. You apparently
    want to expand the authors’ monopoly to cover
    every commercial activity. But, that is not
    surprising, given that you love monopoly more
    than freedom of engaging in commercial activities.
    Moreover, your proposal to require commercial
    negotiations means more overhead is added to
    the business and rarely, overhead makes the
    business more efficient and effective.

    Joseph Pietro Riolo
    <josephpietrojeungriolo@gmail.com>
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • three blind mice

    The authors do not have right to any economic
    benefits beyond the first sale.

    so it’s solved then. google buys one copy of a book, album, or film and loads it onto their servers and everything is available for everyone for free.

    c’mon joseph pietro riolo. you know very well that the situation is more complicated than this. an author’s rights to control over HIS work extend well beyond first sale.

    nothing about what google is doing is fair use: it is corporate theft simple and plain. no amount of bill clinton “it depends on what is is” legal rhetoric´changes this.

    it is frankly surprising that this is even the subject of debate. does no one give a damn about authors? despite the hyperbole, we all know that the world will not come to an end if google has to negotiate on commercial terms.

    the only question is why should google not have to negotiate on commercial terms for use of valuable content?

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

    Mice:

    the only question is why should google not have to negotiate on commercial terms for use of valuable content?

    No. The question is – “Why should google have to negotiate on commercial terms?”

    And there is no reasonable response. Framing the question the other way around is tricky – but unfair – as it assumes that any use is automatically taxable. The onus is on the authors to prove that they deserve compensation – clearly, they don’t. The “compensation” should be for the public, not the authors.

    Where do the patents and copyright on the technology used to create the indexing service stand? That’s what I want to know. Google clearly should be harshly regulated in this endeavor. The competition to build searchable databases should flourish. But instead of looking at ways to regulate Google, all people seem to care about is getting their take of the $$$. Trying to get $$$ out of Google is missing the point entirely. But letting them go ahead whilst ignoring the fact that Google is bound by law to act in Google’s best interest – not the interest of the public – is alarming.

    We have the pro-google camp on one side and the pro-author on the other. What about the regulation (not extortion) that should occur if the pro-google camp wins (as they should in my opinion)?

    How about a F/OSS copyright/no patent requirement put upon the related technology?

    Where do rights over the created database stand in all of this?

    I’m not sure what the answer is, but it seems so superficial to be focusing on an attempt to make Google pay someone money. There is much more at stake here, no?? Force Google to compensate the public!

  • http://www.michaelbernstein.com Michael Bernstein

    “Hardbound books aren�t (yet, anyway) an obsolete format.”

    They are as far as I’m concerned. I still buy them because most publishers haven’t cottoned on to this yet, so I am forced to continue purchasing chunks of dead tree.

    If they *weren’t* obsolete, Google would index them as part of it’s normal web-crawl, and I’d be able to locate the information I need, and be able to purchase a licensed copy. Unfortunately, Google has to go to great expense to transform the works into a form that it can index.

    However, I think that Google’s opt-out is going too far. Publishers cannot ‘opt-out’ of a library, nor can they ‘opt-out’ of bowkers books-in-print, or reviews of their work. Why should they be able to opt-out of Google? I think Google put that on the table far too soon.

  • Pissed Off Author

    Joseph Pietro Riolo:

    “It is not necessarily true that Google retains
    the entire electronic copies of books. That
    is for court to find out but having a degree
    in computer science, I can imagine how Google
    can avoid intact electronic copies through the
    use of database of words and phrases and (again)
    index to them.”

    And how then would they display snippets? That is, portions of the original text that match your query? Either they can show you the portions of the book that match any query, in which case they must have (virtually) the entire book in its original form (or in a form that may rapidly be converted to the original form, which legally is the same thing), or they are missing substantial portions of the book, in which case the index will be next to useless. You don’t need a PhD in computer science (which I have) to see that.

    Of course, if google are respecting copyright and not storing and reproducing most of the work, that leaves the door open for the copyright holders to get together and set up their own search engine capable of showing snippets in response to arbitrary queries. Such a search engine will be vastly more popular than google’s broken offering and hence will allow the copyright holders to keep the revenue due to them, instead of being forced to cede that revenue to google.

    Michael Bernstein:

    “If they [books] *weren’t* obsolete, Google would index them as part of it’s normal web-crawl, and I’d be able to locate the information I need, and be able to purchase a licensed copy.”

    So you’re imagining that once books are obsolete electronic publishers will just stick them out on the web for google to crawl gratis? Dream on. There are electronic books out there on the web already, but if they’re sold through the normal publishing process, there’s no way you or google or anyone can (legally) download them without paying.

    That is the fundamental difference between books and most web content – web content wants to be found and indexed, book content does not (note – books want to be found, but not the content, or at least no more than a sniff – if copyright holders wanted the content indexed they’d have put them out there already).

  • Tim Sackton

    Pissed Off Author, in response to your comment up thread about “Google’s arrogance and duplicitousness being exposed by their response to requests for an opt-in program”:

    Google does have an opt-in program. It’s the Google Publisher Program. A large number of publishers have in fact already opted-in to Google Book Search, saving Google the cost of scanning those books, and allowing them to display more content from those books (based on the terms of service, they can display up to 20% of books provided through the publisher program). Presumably, the more publishers that opt-in, the better things are for Google.

    The problem for Google is that, from their point of view, value is determined by completeness — like any search engine, the Google Book Search gets better as the fraction of books it indexes increases. Creating a truly complete book search requires an opt-out approach, as a significant fraction of works published after 1923 are orphan works, with no identifiable copyright holder. I haven’t seen any of the proponents of an opt-in approach attempt to deal with this problem seriously (perhaps I’ve just missed it; if so, please point it out to me).

  • Pissed Off Author

    Google are not avoiding opt-in because of the orphaned works problem. If that were the case they could simply scan the orphans but obtain permission from all the easily identifiable copyright holders. Easy.

    As I said before, if you can scan and index 10 million books, you can put a bit of effort into contacting the copyright holders.
    Pretending otherwise is just treating us copyright holders like idiots.

    I look forward to joining the inevitable class-action suit against these arrogant billionaires. But I’ll settle for a copy of google’s source code and the right to use their patents. An eye for an eye.

  • Tim Sackton

    I am certainly not a copyright expert by any means, but I do know that U. S. Copyright law makes absolutely no legal distinction between works with easily identifiable copyright holders and work without easily identifiable copyright holders. If Google can legally scan and index the works in one class, they can do so for works in the other class. And if Google legally must ask for permission of easily identifiable copyright holders, well, then they must legally ask for permission from the unknown copyright holders of orphan works. I’m not trying to make it sound like this whole thing is about orphan works, but it seems clear to me that based on the way copyright law is written in the U. S., there is a significant problem here. It is at least plausible that overcoming this problem is part of the motivation for Google’s stance.

  • anonymous

    “Commoners” aren’t any different than corporate publishers in their grab for authors’ rights.

    Corporate bullies contractually demand all rights from independent authors’ rights as a condition of assignment because of the imbalance of negotiating power that authors suffer under antitrust constraints. Or, they seize these rights retroactively and prospectively by simply breaching existing contracts as lucrative new methods of distribution rights present themselves. Corporations know the benefits of infringement far outweigh the risks because few independent authors have the means to enforce their rights in Federal Court.

    “Commoners” trumpet their mob force to gut our markets by “sharing” with millions of unknown parties, justifying stealing as an entitlement, while impugning authors as “greedy”.

    Lessig eggs on both by romanticizing technological advancements as an opportunity – indeed an inevitable outcome – to render authors’ rights moot in the name of “progress”, that the copyist should steal from the creator because its too “difficult” to deal with disparate ownership (and far too difficult to actually create), and croons his silly nostalgia over our legacy as a “pirate” nation.

    We are, in fact, a culture in decline.

  • Gene MCallon

    While I don’t general harp on others, Lessig’s following statement is nothing short of arrogance: “Google is, from the perspective of the authors and publishers, doing something extra nice — giving them the permission to opt out of the index.” Out of one side of his mouth he can argue before that US Supreme Court about his intentions being in line with our constitution and our country’s Founders and out of the otherside this statement–totally 180 degrees in opposite to each other. That is the plain reality of it, taking out all of the academic rhetoric. I realize the Lessig’s ultimate goal is that all copyrights are owned by everyone, but that is the Marxist approach to copyrights and not what this country is all about. This just follows. I am all for the Google project, but not without their seeking out and getting the proper permissions where there is a valid copyright.

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

    Gene:

    Out of one side of his mouth he can argue before that US Supreme Court about his intentions being in line with our constitution and our country’s Founders and out of the otherside this statement—totally 180 degrees in opposite to each other.

    I don’t understand your “180 degrees” take on things. If Lawrence did the opposite of trying to promote the goal of US constitutional copyright, he would say the publishers and authors should win this case flat out and Google’s project should be shut down. Or in the very least, every copyrightholder should be sought out by Google and asked permission to use the works.

    After all, the constitution cleary states that the goal of copyright is to “promote progress in the arts and sciences”. What will help promote progress in arts and science more? –

    1) a global searchable index of all scientific and artistic works

    or

    2) a global searchable index of all scientific and artistic works that have been approved by copyrightholders first after Google has asked for permission

    Gene, please explain to me how option 1 is creating “two sides” to Lawrence’s mouth? I’m not seeing your reasoning here.

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

    Anonymous says:

    “Commoners” aren’t any different than corporate publishers in their grab for authors’ rights.

    Anonymous (if that is in fact your REAL name), a “commoner” is not separate. Your statement implies that the commoners are separate when you say “their grab” as if they are hoarding.

    The commons is not about hoarding. The commons is simply about making the ocean of useful knowledge universally accessible. To equate that goal with corporate publishers exercising ALL RIGHTS RESERVED is erroneous and unfortunate. Their goal is to restrict the trade of knowledge (much like the philosophy of the mercantilists) in order to maximize profit for the few.

  • James Tynan

    The thing that struck me most about how the publishers would like the world to work was the idea of “potential markets”. IP owners would have the right of veto over any and all potential markets that make any use of their IP.

    I would have liked to hear more analysis of the flow on effects of such a system. Some thoughts:
    1. Most IP is owned by incumbents.
    2. Radically disruptive ideas will generally not come from incumbents who like things the way they are.
    3. Giving a veto power to the people who like things the way they are does not allow room for the next big idea.

    I think this argument was put forward by Lessig, but not adequately addressed by the publishers. One speaker glibly noted that people were developing creative works before Google and will continue to do so regardless, and so there is no need to worry about this issue.

    However this answer does not engage with the fact that the very role of IP regulation is to strike a balance that maximises the creative output of a society. I’m not sure how giving a veto over new ideas to groups who enjoy the status quo helps that aim.

  • Mansoor

    Barnes and Noble makes sense, doesn’t it?
    Barnes and Noble must be crazy. I can go to any B&N and browse hundreds of thousands of books, including the best selling ones. Heck, I can come back everyday and read more of a book until I finish it. Why does B&N do it–because I’ll buy the coffee? Partly. But, they actually do it because they know that, by letting me read snippets, I’m more likely to buy the book even if I can read the whole book there. Google is not even providing large enough snippets to make such full reading feasible. It’s just providing a similar browsing mechanism, free of charge, to every publisher in America. Anyway, I think almost everyone agrees that Google has a good idea.

    Even authors and publishers say they’re okay with it, if Google asks permission and pays.

    Pay the publishers, for the most part
    There are a couple of problems with permission, though: first, it will inevitably leave the index incomplete, thereby hurting this great advance in information sharing. And, the advancement of society is a larger goal than the profits of writers. Before anyone screams, let me just say, to ask for this kind of sacrifice in a capitalist society is a little naive. Like PO’ed Author pointed out, if the advancement of society is the largest goal, maybe Google should become open source.

    It’s too simple a perspective, anyway. Because if authors watch others make money from their work and are not fairly compensated, they won’t be encouraged to write, and again, the advancement of society is hurt. So, we have to pay the authors.

    Now, there seem to be only two methods for Google Print to co-exist with authors/publishers: opt-in or opt-out. With opt-in, Google would have to individually negotiate with every publisher over every book. PO’ed Author says if Google can scan ten million books, it can ask permission for them. But, doing one thing ten million times is not the same as doing ten million relatively different things.

    It could also mean that Google would have to pay for every book indexed. This sounds great to starving authors, but it doesn’t make good, capitalist sense. I would venture to say that more than 75% of the books out there are not earning any money, and Google Print would give them new life. Why should Google pay those publishers when Google’s work benefits the publishers? Because Google’s making money, too. That seems like the only reason. But, Google’s not going to be making very much money off of the indexes of obscure or irrelevant books. The benefit is mostly divided between the publishers of those books, and the random people who search for them. So, why should Google pay for those books?

    One way to make everyone happy
    As for the minority of books that are making money, how hard is it for their publishers to opt-out? We don’t know the opt-out process yet, but let’s speak reasonably. One intern, being paid minimum wage, could probably opt-out all of a publisher’s financially viable books in what. . .a week?

    But, then what? Publishers simply opt-out all their financially viable books and everyone’s happy? No, because then customers can’t find the book, publishers can’t promote the book, and Google’s index is incomplete. This is where the strength of the opt-out comes in. For this small minority of books, the publishers and Google would then enter into negotiations. At this point, Google will want to pay for this book because, since its a financially viable book, a fairly large number of Google searchers will read the index and see Google Ads, making Google a fair amount of money.

    The bottom line, literally
    The market can resolve this problem, but only if we let it go forward under the opt-out scenario.

  • Adam134

    James Tynan, you are an unfounded speculator and your ideas are a joke.

    Lessig, I really like your cartoons in the newspaper. They touch me.

  • http://myshela.com/index.php?do=/blog/2995/the-best-way-to-get-over-a-hang-over-best-herbal-hangover-remedies/ Raelene Bogar

    Hi there! I simply would like to offer you a huge thumbs up for your excellent information you have got here on this post. I’ll be coming back to your website for more soon.

  • http://www.bullyescape.com/blogs/entry/Will-Fda-standards-Warning-Stop-the-HCG-Diet Anette Atengco

    I absolutely love your site.. Pleasant colors & theme. Did you develop this website yourself? Please reply back as I’m trying to create my own website and would love to know where you got this from or what the theme is called. Many thanks!

  • http://https://www.virtualk.org/es/node/15339 Ardith Linander

    It’s hard to come by knowledgeable people on this subject, but you sound like you know what you’re talking about! Thanks

  • http://fit-world.biz/index.php?option=com_blog&view=comments&pid=24456&Itemid=0 Ariana Camargo

    Very good post! We will be linking to this great article on our site. Keep up the great writing.

  • http://www.facetuning.com.br/index.php?do=/blog/40362/boehners-personal-debt-ceiling-program-uncovered-not-enough-through-retaini/ Junko Hannon

    I blog frequently and I genuinely appreciate your information. This article has truly peaked my interest. I am going to take a note of your blog and keep checking for new details about once a week. I subscribed to your Feed as well.

  • http://peepaa.com/blog/view/10651/florida-loans Beatris Brierley

    A fascinating discussion is worth comment. I do believe that you ought to write more on this topic, it may not be a taboo matter but usually people do not speak about such issues. To the next! Kind regards!!

  • http://tradelinkmedianetwork.com/jcow/blogs/viewstory/28228 Barbara Twitchell

    Everything is very open with a clear description of the issues. It was really informative. Your website is useful. Thank you for sharing!

  • http://www.publicvanlines.com/content/credit-report-checks-more-and-more-prevalent-inside-pre-employment-assessment-process Yadira Froemming

    Hi there, I do think your site could possibly be having internet browser compatibility problems. Whenever I look at your blog in Safari, it looks fine however, if opening in I.E., it’s got some overlapping issues. I simply wanted to provide you with a quick heads up! Other than that, wonderful website!

  • http://www.hi2friends.com/index.php?do=/blog/71432/hsbc-slashes-fixed-rate-home-loans-while-you-actually-s-bail-out-offers-wis/ Pura Dipasquale

    Aw, this was an exceptionally good post. Taking the time and actual effort to produce a very good article… but what can I say… I procrastinate a lot and never seem to get anything done.

  • http://www.busyy.de/blogs/entry/Ways-to-get-not-in-debt-plus-save-money Katharine Aanenson

    Good post. I absolutely appreciate this site. Thanks!