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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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Copyfight

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August 12, 2005

Google Sells Out Users to Publishers

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As you undoubtedly recall, months ago Google launched their Google Print Library Project scanning thousands of books from the country's libraries for potential search, putting up whatever fair use or the publisher would allow.

Publishers, in typical copyright-holder paranoia fashion, worried that perhaps the two line snippets Google would be providing of their books would spell the end of the world for their entire industry. They wrote articles attacking Google for their cruelty and finally, today, Google announced it would back down.

That's right: Google won't even scan any book copyright holders ask them not to, even though doing so is perfectly legal. It's as if copyright holders got to dictate what books get placed in libraries. Their short-sighted selfishness will cost us all, depriving us of our heritage in our online Library of Alexandria.

Details at the Google Blog, under the Orwellian title Making books easier to find.

UPDATE: the EFF's Jason Schultz attacks publishers: "This is a clear example of copyright failing the public in the digital age. Google isn't selling the books; they just need to scan them to help Internet users find what they're looking for. The fact that publishers are able to hold up this process works against consumers and the marketplace, not in their favor." And copyfighter Siva Vaidhyanathan attacks me.

Comments (16) + TrackBacks (0) | Category: Misc.


COMMENTS

1. Crosbie Fitch on August 12, 2005 11:15 AM writes...

If Google can't do it, it sounds like a job for the people.

Everyone picks an ISBN number of a book they own, finds a page number that hasn't been scanned yet, scans it, OCR convert+proofs it, submits it (with their unique ID number that retains their anonymity, yet gives them a point) and ticks off that page number.

This way the entire book goes online via a p2p book storage system. That'll make the publishers much happier. Instead of being able to keep Google under their thumb, now they've let the genie of the people out.

You could have a bounty system too, i.e. N people collectively pledge to pay an equal share of a particular book to be scanned, where the resulting bounty is shared to scanners in proportion to pages submitted.

Published books belong to the people. If you don't like it, don't publish.

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2. Dr. wex on August 12, 2005 11:38 AM writes...

If Google can't do it, it sounds like a job for the people.

Sounds like a job for Amazon, which is already in the business. See A9 and "inside this book" features already in place.

I agree that Google caving is cowardly and I wish they hadn't. But the book publishers aren't going to be any more successful than the rest of the Cartel at locking up their content.

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3. Just Wondering on August 12, 2005 12:12 PM writes...

Can you explain why you believe making an unauthorized scan of a copyrighted work is "perfectly legal"?

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4. Crosbie Fitch on August 12, 2005 12:32 PM writes...

Can you explain why you believe making an unauthorized scan of a copyrighted work is "perfectly legal"?

Evidently someone from the "Photocopiers are illegal" school of thought...

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5. Aaron Swartz on August 12, 2005 1:58 PM writes...

The respected Siva Vaidhyanathan disagrees.

I don't think he's right (If the U of M can do the copying for its own patrons, why can't it hire Google to do the same? And isn't Texaco distinguishable because it's not phase-shifting?) but apparently opposition isn't limited to just the flat Earth crowd, like I thought.

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6. Just Wondering on August 12, 2005 2:10 PM writes...

Not quite the same thing, a photocopier is a machine and Google is an entity performing an act -- or are you suggesting that a person making a copy with a photocopier could never be acting illegally?

Mr. Swartz makes the legal judgment that scanning of entire copyrighted books without permission, essentially the definition of copyright infringement, is nevertheless unquestionably legal. I would simply like to understand his reasoning. My question is not an attack on the societal benefits of Google Print, just curiosity about why he feels comfortable making such an absolute statement.

I also suggest that MP3.com would need to be distinguished.

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7. Crosbie Fitch on August 12, 2005 2:20 PM writes...

Ok, first, how about if Google bought all the books, then privately scanned and indexed them all?

Is making a copy of a book you own illegal if you're not distributing it to anyone?

If you utilise your copy as an easier way of finding a couple of relevant lines, why should that suddenly make the copy you made earlier illegal?

If you provide these couple of lines to someone in response to one of their queries, why should that suddenly make the earlier copy illegal? Or should the providing of these two lines itself be illegal?

Now, last I heard, there's nothing illegal about me borrowing a book or CD from someone and copying it. The only illegal thing is if I sell that copy or distribute further copies.

However, Google is trying to be nice to publishers first....

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8. Daniel Brandt on August 12, 2005 3:03 PM writes...

What's really happening here is a minor strategic retreat by Google that serves as further spin on their plans to scan copyrighted material. This is the best way in the short term to avoid a cease and desist and court order from some rights-holder association, such as a publisher's association, or the Authors Guild, or the National Writers Union.

None of you "information wants to be free" pundits has even looked at Section 108 (library copying) of the Copyright Act. Google is trying to focus exclusively on Section 107 (fair use). If you served the U. of Michigan under Section 108, Google would be restricted to public domain works only, and they probably wouldn't even bother because there's not much of commercial interest there compared to the entire corpus of copyrighted material. And if they fought a court order up to the Supreme Court, chances are excellent that they would lose, and copyright law would be tightened rather than loosened.

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9. Just Wondering on August 12, 2005 3:53 PM writes...

"Is making a copy of a book you own illegal if you're not distributing it to anyone?"

"Now, last I heard, there's nothing illegal about me borrowing a book or CD from someone and copying it. The only illegal thing is if I sell that copy or distribute further copies."

It might be; the infringement is in the reproduction, regardless of whether it is further distributed (which would be a second infringement). Then the question is whether the copying is excused by fair use, which is where commercial motive might make the difference between legal and illegal copying. Your personal copying might be a fair use, but the same act of copying by Google for a different use might not be.

MP3.com was whacked for having copied music onto its servers, even though only people who owned legal copies of the music could listen to it. Providing viewers with two lines might be legal, but that doesn't necessarily mean the copy of the entire work they made in order to do it is legal, too.

I like Google Print, I think it's a great tool, I would love it if every book was on it. Maybe it is a fair use (Google must have thought so or they wouldn't have started the project), but I think it's a pretty tough argument to win.

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10. Red Rat on August 12, 2005 5:06 PM writes...

The concept of a "library", at least as we have historically construed it, seems to be at odds with the current copyright laws. Historically, libraries have been able to buy books and then loan them out to individuals to freely use. Publishers appeared to have liked the idea. Indeed, public libraries continue to do this today (BTW not just books, but CDs, DVDs, tapes, etc). One book can be read by many readers. What, then, is the difference between what public libraries do currently and what Google intends to do? Yes, it scans in the material digitally and then makes the book available on a web site. However, when we read a book we certainly "scan" the book in, we can take notes, we can copy it by hand verbatim. We could pass the copied transcript around also. I would suggest that if Google cannot legally scan a book and make it available, then all libraries should be closed down. I am sure that the book publishers must logically agree with me. What exactly is the difference: Google only buys one book and libraries buy many books? It appears we are arguing over quantity and not the principle of information dissemination.

In their parlance, if you want the information, then pay for it. Certainly, authors wish to be read and honored for their ideas, but they too need to eat and hence are working for money. The argument appears to be about money grubbing, pure and simple. Since, the real issue is money grubbing, then it appears that the publishers are merely gripping about not getting their cut of the action.

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11. Branko Collin on August 12, 2005 10:18 PM writes...

"If the U of M can do the copying for its own patrons, why can't it hire Google to do the same?"

Presumably, it is not the U of M doing the copying, but the library of the U of M. IIRC (IANAL), libraries have special exemptions.

"Can you explain why you believe making an unauthorized scan of a copyrighted work is "perfectly legal"?"

It isn't necessarily, but it may not be necessary either. TV, radio, and VCR are all examples of technologies that started out as copyright infringement.

However, Googles use may be fair.

Permalink to Comment

12. cjovalle on August 13, 2005 12:36 AM writes...

This is the difference that I see between U of M doing the copying and Google doing the copying.

Google is a commercial entity performing the act for a commercial reason. U of M libraries are a non for profit entity not performing the act for a commercial reason. (These are assumptions on my part. Feel free to correct them so far.)

U of M libraries have statutory exemptions that they can rely on. They also have a stronger fair use argument then Google. Now, to be able to take advantage of those statutory exemptions they have to fulfill the statutory requirements, which limits how they can redistribute the works that they are copying (and is fairly strict for digitized works). Reportedly, the contracts with Google are nothing like that.

Now, I think that Google acting as an agent of the library (that is, if U of M hired them to do the actual digitization) might be permissible if Google's contract was as limited as U of M's statutory requirements. But it's not, so Google can't take advantage of the library exemptions in this manner.

That's one example of how Google's use and library use aren't the same.

I'm not saying that Google Prints is a bad thing- I think it's an interesting idea. I'm reminded of Brewster Kahle's response to people who send the Internet Archive C&D's:

"Dear Sir/Madam: My deepest apologies for infringing your copyright. I will now remove your work from the historical record. Enjoy oblivion."

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13. Crosbie Fitch on August 13, 2005 5:50 AM writes...

I'll just add the technical observation that Google doesn't actually need to create a copy of a book in its scanning and indexing process.

Google could simply create an exhaustive concordance, i.e. an index that's merely sufficient (and limited) to recreate a maximum of a 40 word excerpt from any scanned (but not copied) book.

Now someone can tell me that even a concordance requires authorisation from the copyright holder...

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14. Aaron Swartz on August 13, 2005 11:24 AM writes...

To Mr. Wondering: Do you believe the typical use of iTunes is illegal because it makes a copy of an entire work (a CD) without permission? I'm not making an absolute statement; I'm saying that in this case I believe it's legally permissible.

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15. Just Wondering on August 13, 2005 8:24 PM writes...

I think ripping for my personal use falls within the fair use doctrine based on Sony, Diamond Multimedia, and the legislative history of the Audio Home Recording Act -- but no case I know of says it is for sure. I think ripping the same CD to my daughter's computer so she can listen to it on her MP3 player is also a fair use. I also think giving my other daughter at college a copy of the same CD for her personal use is also a fair use. I presume, though, that the content providers cartel would beg to differ with me on some of these copies. And, I'm a little peeved that after I rip a CD through iTunes that it's protected by Apple's DRM and I can't play the song on a non-Apple device or through non-Apple software, which means if I change players I'll have to rip it all over again, even though the first digital copy was (to borrow a phrase) perfectly legal. But that was the deal I made when I got an iPod.

Have I convinced you that my earth is maybe just a wee bit convex?

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16. oldfox on August 15, 2005 8:32 AM writes...

Now, last I heard, there's nothing illegal about me borrowing a book or CD from someone and copying it. The only illegal thing is if I sell that copy or distribute further copies.

Not sure where you heard that but that is clearly not the case. Fair use looks inter alia to the impact on the market and if you are borrowing and copying cover to cover, you are clearly impacting the market by exactly one book, which is how they sell them, one at a time.


Now someone can tell me that even a concordance requires authorisation from the copyright holder...

You could copy the book in longhand and it would still be a copy.

I am for Google doing this copying, yes, and I know there are problems, but Google is very rich. My real hope is that Google takes it on and goes to court or Congress with it's deep pockets and finally defines Fair Use for all of us out here in the libraries trying to keep our customers legal.

[full disclosure: I own GOOG shares]

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