One of the privileges of access to what we cool kids call the “back end” of Troppo is that when I write a long, long comment, in an old thread that has taken a new direction, I can make it the start of a new thread. As I’m doing here. Note that the comment originally arose from disagreeing with John Walker who supported the scuttling of Google Book Settlement. If you’re interested in that and don’t know of it, it’s fascinating and written up here.
As ever, you know the rules. Please ensure all comments are brief, well expressed and in agreement (or strong agreement) with my post. This is Troppo, AKA ClubPony where disagreement is quietly frowned upon and, if persisted with, can lead to the withdrawal of access to the cucumber sandwiches.
It’s true I don’t understand the Google Book Settlement in detail. So all my comments should be understood in that context. Perhaps if I took a month out of my life to understand it, and the options fully, I’d change my mind. Then again only professionals in the area – like Pamela Samuelson whom I met on an occasion and thought was on the side of the angels (of more openness) – can aspire to that without disrupting their lives. So I’m prepared to chance my arm, as we all do even when we think we know all there is to know.
I’m afraid I’m incensed by the pettifogging self-indulgence, self-righteous, small-mindedness, and greed for tiny morsels of financial gain of the copyright crowd.
The story from my point of view is that Larry and Sergey spent $400 mil of Google’s money with, it seems, not a great deal of thought of Google’s financial gain, in pursuit of a dream. Now the dream was a silicon valley rich boy’s dream. But it’s the same dream as Thomas Jefferson’s – to liberate the world’s knowledge for the betterment of the species and the greater glory of the creation and the creator if there is one.
I don’t even know precisely that vision in detail, but it seems to me that at that stage Google had no restrictive intent whatever. Their project was available to anyone else to copy – in whole or in part. Moreover, consistent with the ‘fair use’ legal doctrine they were relying on, they would have honoured anyone’s right to prevent it from distributing their copyright. They would have distributed orphan works, quite possibly for nothing. They may well have desisted from monetisation given their established practice of doing the same in many other areas.
But the immense and multifarious structures of commercial society – and perhaps Larry and Sergey’s desire for further riches – would have pushed them towards further monetisation. And company law would have placed that duty on Larry and Sergey as fiduciaries of their shareholders. Then another arm of commercial society reached out. Copyright owners and authors (whose involvement at least in this country is virtually always assiduously managed by corporate copyright interests and their well funded comms teams).
They stood to lose nothing from what I can make out, but they saw the opportunity to make some small bucks out of this from copyright royalties on things that had long disappeared from print. That this involved torching the possibility of a free and open database of all the books written in former centuries? Well you can’t make an omelette without breaking eggs. These are rights that would not have existed except for copyright owners successful campaigns over the decades to extend their copyright from 14 years at the beginning of the eighteenth century to lifetime plus decades more by the late twentieth century – a term that is unjustified by the justifications usually put forward for copyright – there is no ‘incentive to create’ from extending copyright well beyond the death of the author.
Because the corporate copyright lobby went after all this the result was a much more difficult set of choices in which a class action in effect made law for the country or the whole idea went back into storage indefinitely. That was a very unfortunate development. As I said at the outset it’s true I don’t know all the detail of the agreement. Nor do I expect I’d like it all. Nor am I naïve about Google’s motives or conduct – at least after the copyright lobby came after it. But at least from what I know it would have been much better to proceed with than the alternative which is bleak.
As for concern about usurping Congress’s right, one feature of the American system is that courts have had a larger role in such law making, not least in making fundamental law as they have in great constitutinal cases like Roe v Wade and Brown v Board of Education. Ancient Athenian courts too often sat in judgement on acts of the ‘legislature’ ie the Ekklesia.
So while I have some sympathy for the argument that it was Congress’s job, we all knew Congress was and is unlikely to do its job and we can at least think of this as in the spirit of Montesquieu and the founding fathers who quite liked the idea of jurisdictions overlapping and competing with each other to some extent. The other point to make is that if it really is Congress’s job, it can legislate and remake the rules after the event. (And because the money amounts are not large if compensation were involved it probably wouldn’t be a large consideration – even for a cash strapped government.)
I’d add in that context that I’m deeply uninterested in monetary measurements of the importance of this. I see it largely as a cultural, and indeed, at the risk of sounding grandiose, a spiritual matter. (Of course if you’re paying attention, you’ll know I’m cheating. If the numbers were large I’d spin that my way too ;) So let me scale it back and say that the value of this measured by money has never been a big consideration for me.)
Meanwhile CAL and it’s Chairman Kim Williams are out in force in today’s press defending, in their usual mendacious way, their outrageous purloining of $15 million from Australia’s schools, libraries and universities not to pay authors or copyright holders as is its mission, but to run political campaigns to keep up the protection racket it has built for itself out of the thicket of nonsensical rights ‘fair dealing’ as opposed to ‘fair use’ provides it.
Nicholas
No offense but your grasp of what actually happened and what the settlement actually would have done is not that good.
At the time i did spend a lot of time reading the submissions and a lot of expert commentary about the GBS ( mark 1 and mark 2). Regardless of ‘intentions’ the GBS was as real world ‘policy’ deeply flawed, a truly bad deal.
Below is the intro to Pamela Samuelson’s ( and around 65 other eminent academics) submission against the GBS:
This is from James Grimmelmann’s submission , at the time James was Associate Professor of Law New York Law School and attended most of the hearings. He, during the (lengthy proceedings) changed from a support of the GBS project to a severe critic.
:
BTW The usual ‘copyright societies ‘ hardly figure in the list of submissions against ( or for) the settlement. CAl for example only noticed the whole-shebang about 8 weeks before the opt-out deadline.
Thanks for the quotes.
All useful.
And what they demonstrate clearly is that there were clear problems with the settlement.
To be compared with the alternatives.
Which so far are clearly worse in practical terms, though of course one can’t be so cavalier about precedent value.
I’d also be interested in considered legal opinion about the capacity for Congress to revise the agreement if it ever wanted to represent the people – as opposed to the Disney Corporation which, as you know it’s recent copyright legislation has represented.
If, as I suspect, Congress retains sovereign power to undo the contents of the agreement and replace it with something else, I think that’s a very strong argument against the arguments above allowing the perfect to avoid being the enemy of the good.
The view of many was that it was more like a good looking package that contained a set of instructions that had a very suspicious feel to them.
I don’t know wether Congress could act against a contract such as GBS ( guess they could ?) .
However as you note the odds of Congress acting against the interests of a even bigger Google are , small.
There were so many serious flaws in the GBS and the process that lead up to it that it is , I think, simply impossible to say which ones were ‘the fatal flaw’.
I started to follow he GBS because it :
Involved compulsory collective licensing on a massive global scale.( CAl would be a grain of sand in comparison to the registry they proposed to set up .)
And
Because the GBS as a proposition ,was the best real world example
of ‘ Gödelian’paradox(s) that I have ever seen. Hofstader ,GEB ,as you know is a long term interest of mine.
Intrigued that the GBS incoporated Gödelian’paradox(s)
Can you elaborate?
Nicholas
James Grimmelman in an essay summing the GBS ‘story ‘ termed the GBS the “CLASSCOPYTRUSTLIPHANT”.
The GBS was a complex hybrid built out of of ,processes-procedures etc ,drawn from several , normally quite seperate, ‘kinds’ of legal areas , areas that have different ( sometimes quite opposing) basic assumptions. The result was ‘statements that are in themselves true , but are also mutually exclusive’.
A better approach to all of this might be to separate the components ( for example ‘orphans’ ) to the point where they can be reasonably understood and deal with them one at a time.
Justice Chins reasons for disallowing are worth reading in full http://www.thepublicindex.org/filings/ag-v-google/opinion-rejecting-the-amended-settlement
( he writes well it’s not jargony )
For example:
“Google did not scan the books to make them available for purchase, and, indeed, Google would have no colorable defense to a claim of infringement based on the unauthorized copying and selling or other exploitation of entire copyrighted books.11 Yet, the ASA would grant Google the right to sell full access to copyrighted works that it otherwise would have no right to exploit.12 The ASA would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works.13 And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions. While its competitors went through the “painstaking” and “costly” process of obtaining permissions before scanning copyrighted books, “Google by comparison took a shortcut by copying anything and everything regardless of copyright status.” (Hr’g Tr. 43 (Thomas Rubin, counsel for Microsoft)). As one objector put it: “Google pursued its copyright project in calculated disregard of authors’ rights. Its business plan was: ‘So, sue me.’” (Objection of Robert M. Kunstadt to Proposed Settlement 3, ECF No. 74).14
Applying Firefighters, I conclude that the released claims would not come within “the general scope of the case made by the pleadings.” 478 U.S. at 525.15 Applying Wal-Mart Stores, I conclude that the released conduct would not arise out of the “identical factual predicate” as the conduct that is the subject of the settled claims. 396 F.3d at 107 (citation omitted).”
What I haven’t been able to work out is why the scheme didn’t go ahead with the partial, but still valuable, project of putting online that still enormous amount of material that was clearly pre-copyright – stuff from the 1800s, say. Google Books won’t put up (say) the works of Porson, just in case he comes after them.
That’s a good question .
Part of the answer might be that checking each title for, is it out of copyright? is hard to automate, another
part of the answer might be that Googles scans were of uneven quality and its data base of titles contained too many errors : duplications, missspellings of titles and authors names etc – OCR is not that reliable and proof readers cost.
Having duly claimed my “strong agreement” with Nicholas (as he states, the necessary qualifying condition for a licence to comment at Club Troppo), John’s answer here still doesn’t explain why they didn’t just appropriate Project Gutenberg’s products. They’re free to copy and use and have already been proofread by volunteers.
It’s hard to avoid the conclusion that the reason is that there is no money in that for Google – which highlights the fact that Larry and Sergey, just like their legal opponents, are motivated by immediate self interest rather than the public interest. Yes, a great many authorial parties are unrepresented in the settlement but so are the entire mass of consumers.
Arguments about whether the GBS does in fact serve the public interest should start there, and seen that way these arguments are not about whether we are “letting the best be the enemy of the good” as Nicholas says, but whether we are letting the worst be the friend of the bad.
DD
At the time Grimmelman ,on his blog quoted one of America’s sharpest legal minds ( can’t remember his name it was about 8 years ago) saying something along the lines of ‘ there are key clauses in the GBS that are simply impossible to interpret.’
DD
It was Richard A. Epstein
“Any mortal who reads the Google settlement, as I have, will be defeated by its obscurity and complexity.”
( slightly odd phrasing ,no ?)
I forgot to mention that the Authors Guilds initial action was based on a claim that simply scanning and indexing in copyright books and displaying small snippets of those in copyright books , was in itself a breach of copyright.
It was only after the Guilds attempt to get the GBS ratified had failed, that the Guild then proceeded with their initial claim. The court rulling on that claim was that scanning, indexing, and displaying snippets is Fair Use.
Thanks – but all these sources are using property law to solve the question of how to build a global public good. Not surprisingly they don’t’ do such a good job. Entirely the wrong set of concepts to use to figure out the problem. Phlogiston anyone?
The GBS would have at the same time also built a really big (privatised )centralisation of ,power and that was what was “disturbing ” about this ‘public good’.
“Property Law ” ? You have not been paying attention ??
no troppo sports day excursion for you young master Gruen :-)
Nicholas
Coda to all of this is:
the Authors Guild were ( to the point of haplessly) unrepresentative of the class.
And if they had simply proceeded with their initial action it would have quickly failed.
In response to DD, Project Gutenberg only covers ‘classics’ and other high demand books that are out of copyright. Google was after the long tail. Not sure if they thought it was directly money making. But Sergey and Larry were probably thinking that they were going to be running a firm that was making tens of billions in revenue annually – not sure where it was when this project was running – and that there should be a range of economic prospects for the data within Google as well as erecting barriers to entry to other search engines. The thinking could have been quite like the thinking behind Android (though that was more focused on a clear and present
Appledanger.) The point is that a firm making tens of billions of revenue can afford to spend $400 mil on a one off basis if it makes it that little bit digitally stronger than its opponents without the project needing to be profitable in terms of the revenue it earns directly. (Especially with Amazon pioneering search inside books.) Google often thinks that way.Google was the only party to the GBS negotiations that was clearly not in a position of conflict of interest.
For example
This is a quotation from the open letter that was sent to members of the US Congress who were published authors by three US authors’ organisations who were protesting against the settlement; National Writers Union, American Society of Journalists and Authors, and Science Fiction and Fantasy Writers of America:
“Have you wondered why the settlement only covers out of print books? It’s because the major publishers have struck side deals with Google for their in-print books. In other words, the publishers who are negotiating for the plaintiff class have brokered a deal that will determine the digital future for books — but they want no part of it for the books that they actually are trying to sell!”
The publishers’ side was challenged in November to deny the existence of this side deal and has not done so. It was provided for in the settlement agreement under 17.9.
Nicholas
I had a moment of ‘ Christ the GBS was seven years ago’ when you posted that link to the Atlantic article. Had not thought about it for years.
My feeling is that in the end GBS only muddied the water – GBS really had too much of a taint of ‘too big and too much power ,in too few hands’. And therefore the real problems and possible solutions got obscured.
for example: questions as to what to do about the ‘orphans ‘ problem(s) continue .
Late last year Harvard Library Office for Scholarly Communication (OSC) released a report on possible legal approaches to using Orphan works.
Have only skimmed it , however it seems to be worth a few hours.
Reports on “possible legal approaches to using Orphan works” are illustrations of how, as I think Keynes may have said, a thorough legal training is a form of brain damage. Lawyers spend endless time ‘solving’ the problem. What’s wrong with allowing the copyright on orphan works – works the owner of which can’t be found?
I mean srsly am I missing something here?
Orphans – what is and what is not an orphan- can be complicated. read that report.
Its similar to the situation were books can be simultaneously in print and out of print -I’m not making that up.
Yes, it’s interesting.
If I had a thousand years of life to lead, I might add it to the list of things I’d want to know, but I doubt it.
What do you think would be wrong with a rule which said that if you’ve made reasonable simple steps to find the copyright owner, you have immunity for any copyright breaches you may have committed until they contact you?
Some jurisdictions such as the UK have implemented schemes along those lines.
Time will tell.
BTW
Why are you ‘moralising’, about something that is truly complex- when you seem almost proud that you don’t have the time to even try to understand the, many voices?
Don’t understand.
Nicholas
WK Hancock used to say to his students: History is best conducted with your boots on…
Thanks John,
Because the problem of orphan works seems trivial to me.
We could be talking about adverse possession in property, and you could point me to whole PhD theses about whether adverse possession is fair, whether it should be 21 years, 30 years, 100 years or 5 years.
It’s not that I regard myself as above such matters. It’s appropriate to talk about that stuff if you’re interested in it – intellectually, professionally or financially. But I’d be unlikely to add much to anyone else involving myself in it, and I certainly find it uninteresting.
You have an idée fixe on this stuff and strongly held views – as you do on the Artists Resale Royalty where my principles (utilitarian basically) and your concerns for your own freedom from constraint amongst other things meant that there was a meeting of minds.
Fair enough. Go for your life. You haven’t once addressed my concerns. You’ve put it all in your own terms. Which are concerns about process, legal doctrines. All entirely fair enough. But not a conversation. I am aware, I’ve made it clear, that I’m aware that there are a host of legal questions. For the avoidance of doubt, if I spent weeks making myself an expert on the subject it’s possible I’d change my mind and end up agreeing that Pam Samuelson’s intervention was the right one. But I strongly doubt it and if I did, of what significance would that be for the world.
It wouldn’t change my mind about the points I’ve been most strident about. That the lawyers seemed never to consider the relative merits of different positions. When you said that I was in error because I’d mentioned “property law” or some such, I’m sure I could have spent some more time finding my error and then it would have been some other kind of law. And my points are outside that. To trip me up on my saying it was property law, without ever addressing my points. Well why should I press on? I’m not going to get any satisfaction from it other than defending my ego, but I haven’t tied my ego to my detailed appreciation of the precise legal arguments. I’ve argued that big decisions with huge economic and to use a grandiose term larger spiritual dimensions in play (would we build a digital Library of Alexandria) were discussed in terms of legal categories as if it was any old commercial copyright case.
I’m not trying to compete with you – with you on one side and me on the other. I’m interested in some arguments and not others. If you did want to collaborate in forging further meaning, you’d engage with my arguments and, rather than trip me up on my terminology, offer to help – from your knowledge of the settlement.
For the avoidance of doubt, while I admit to some frustration in my tone, it is not rancour :)
Nicholas
I agree that copyright is a mess, is frequently abused and that there are serious problems.
However the GBS was a solution that was worse than the problem.
One of the proposed measures is limiting the ‘ liability’ for scanning etc of titles that were published prior to say 1970- currently punitive damages are a big concern for libraries .
Nicholas
The frustration is mutual:-)
Where we might find common ground is : I see the GBS as an attempt to hack around a ‘governing’ status quo that is deeply, frustratingly, stuck in a rut that only gets deeper and it’s been like that for decades.
Sincerely , “property law” was not intended as point scoring;
The essence of the GBS as legal political issue, was the way it fused legal catagories ( class action, copyright and anti-trust) so as to concentrate an intellectual property industry .
As for my obsessive compulsive side :-)
yes that’s what got me interested, however it was the sheer strangeness of the GBS as a ,representation, that kept my interest going.
Nicholas
In the interests of cooperation.
Orphan works are a really big thing -they could even outnumber all the titles that are either public domain or have known owners, nobody knows.
For example: by around 2011 Google had digitised around 12 million titles , yet only around 1.2 million of those titles had been claimed by a right holder.
And in the case of titles (such as compilations, books including photographs and or cartoonsetc) where there were multiple rightholders who as it stands all need to be found, the problem is even more vexing.
Can you think of a way of improving access to all those orphan titles that does not, also effectively grant an exclusive license to exploit all those titles to just , one big big company?
What’s wrong with what I proposed?
Nicholas
Can’t follow what you are linking to ,time to start a new page
Please excuse my frivolous and definitely uninformed comment.
It sounds like capitalism trying to swallow “Western Culture” whole. I hope it has the same fate as Mr. Creosote.
Nice :-)
Nicholas
meta question : the Queen Anne Act replaced a concentrated monopoly with a decentralized monopoly, do you have a ( workable) alternative to those two options ?
You want me to discourse on the entire field now do you?
Generally speaking some major principles are, and subject to simplifications to allow relatively straightforward administration and compliance, we should have only that amount of copyright necessary to bring copyrighted works into existence.
That would mean a copyright period much shorter than the current one – and probably radically shorter for some easily identified categories – like newspapers, software. It should be as it used to be in some countries before the Berne convention, only available on prospective claim. That is if you want to claim copyright you do so prospectively by publishing material with an explicit declaration of reservation of rights as part of that publication.
Basically agree, but how do we move in that direction , that’s more your field, no?
Nicholas you tried to stick:
pettifogging self-indulgence, self-righteous, small-mindedness, and greed for tiny morsels of financial gain
On to my tail. What do expect…
You’re not the copyright crowd. You’re a painter who has shown himself to be both interested and relatively open minded about some of these issues – but not particularly this. But then I don’t regard your position on this as indefensible. It’s like we were having an argument about abortion and you thought abortion was murder. I wouldn’t think you were an idiot or unreasonable for holding that view. We come from incommensurable positions.
That’s different to the copyright crowd who are utterly untroubled by the megalomaniac greed of CAL, it’s filching money from those seeking the plans surveyors made of their homes generations ago, from schools whose teachers have the temerity to photocopy websites that are freely available on the net for their students. And those in the IP crowd who remained entirely untroubled by the fact that our patent law and the way it was administered meant that manufacturing of out of patent medicines hemorrhaged from Australia to countries with weaker IP protection like India, even though a change could have been made to it which hurt absolutely no-one that would have solved the problem. Those were the things I was thinking of when I wrote those words.
Nicholas
CAL is a miniscule example of what you get when copyright is concentrated .
And entities like CAL are the reason why we are (metaphorically) members of fighter commands 303 squadron.
Nicholas this thread is getting too long,
Perhaps another, hoist is in order?
As for your attempts to weasel out of the implications of your frankly, insulting and ignorant description of , all objectors to the GBS :
Not worthy of you.
Not sure I was weaseling out of anything.
Was trying to clarify and be more precise about the reasons for my claims. But this is a spirited argument. I’m allowed to say things like that you know. It’s not careless, ill-considered abuse just thrown around. In the case of each of the claims I’ve lived them – I’ve witnessed precisely what I’m claiming, and I’ve discussed it with people and pressed the point, and it’s clear that, notwithstanding their lack of any reasonable response, the people I’ve talked to – like the musicians in the MCA and the IP lawyers for pharmaceutical companies, simply look blankly at me when I press them, explaining how they could support more efficient, less unfair and stupid policies that would do them no harm whatever. It’s a case of “tell someone who cares”.
Nicholas
From what I know your description of the music and pharmaceutical sectors attitude sounds right.
However its too sweeping for ‘books’ that’s because the book publishing industry has , least post 1709 , never been as concentrated as say ,the recording industry was in the 1960s.
Nicholas
BTW
Copyright – for better and for worse- affects virtually all of us. It is woven into the fabric of our lives, it should be 101 for all economics students.
Nicholas
I am taking a ‘breather ‘.
May I offer the following to both of us for reflection , its from Friedrich Schelling :
“The question is not; what view of the phenomenon should we take in order conveniently to explain it in terms of some philosophy or other? on the country, we should ask what philosophy is called for, if it is to live up to the subject and be on the same level/ not how must the phenomenon be turned,twisted,narrowed, deformed in order to be explicable at all costs according to principles ourselves have resolved never to go beyond. But rather: to what extent must we enlarge our thinking, so that it might relate adequately to the phenomenon ?”
Nicholas
If it’s ok with you I’d like to stick to the subject of orphan works. It’s big enough and it’s important for public collections, yet it’s also reasonably specific.
Do you know if the NLA has a estimate of how many orphan works it has in its collection? And if they do have a estimate, do they have a ballpark figure for what percentage of their oprpan works were printed prior to 1970?
Given the nature of the NLA collection such figures should give an indication of the scale of the number of orphan works in Australia, no?
No idea I’m afraid :(
You could write to them.
Actually now I think of it I know somebody who , might, be able to hazard a estimate.
Orphans are basically an artefact created by the current extremely long term of copyright.
Thomas Babington Macaulay in 1841 in a motion opposing the extension of the term of copyright to life plus 60 years, called for it to be :42 years or life , which ever is the longer.
Obviously it would have been better for all if Macaulay’s motion had won, but we have to work with what we have, yes?
Correction
Mccaulay did prevail in 1841, the extension to life plus sixty came a bit latter
Have you read his speech in full?
http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/commentary/MacaulaySpeeches.html
The last paragraph of Macauley’s (fairly long) speech is famous , the full speech is worth the effort ,for example he does a convincing rhetorical job of explaining the large negative cost-benefit equation of extending the term of copyright to absurd lengths .
In the U.K. term of copyright was extended to life plus 50 years in 1911.
Thanks
42 years. I’m with Thomas Babington M.
A good number of years, as good as any to anchor on, which has the advantage of also being the answer to an important question posed in The Hitchhiker’s Guide to the Galaxy.
:-)
It was; 42 years or life , which ever was the longer.
After all in those days a lot did die young leaving behind young widows and young dependents -there wasn’t a lot of social security in those days.
There were two speeches by Macaulay,
https://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H_4_0018
and
https://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H_4_0019
Still worth reading:
Both speeches are worth reading , from his first speech: