Grimmelmann On Google Books Settlement Fairness Hearing 95
somanyrobots writes with an excerpt from New York Law School professor James Grimmelmann's cogent report from Friday's fairness hearing about the current Google Books Library Project settlement agreement. That agreement has been proposed to resolve the dispute between Google and various rights holders about Google's plan to scan and electronically distribute many written works, including "orphan" works.
"I was at the courthouse from 8:30 onwards, with the team of New York Law School students who've been working on the Public Index. We didn't want to take any chances that we might not make it in. (Last time, we were among the very last people seated.) No worries there; we got great seats in the overflow room, and in the afternoon, in the courtroom itself. I'm very glad I had the student team along with me. Their observations and insights about the arguments and the lawyers were invaluable in helping me write up this post. Other than my conversation with them, I've avoided reading the press coverage; I wanted to provide a direct account of how I saw the day's events, without being influenced by others' takes."
Re:copying grants the right to profit from other's (Score:5, Informative)
That's a gross misrepresentation of Google's position, which is significantly complicated such that it can't be easily distilled into two sentences.. Here's a more adequate summary of my interpretation of Google's position:
Other people's properties can be digitally distributed. When a property owner can be identified, that owner has the right to set a price for sale or opt their property out of further distribution. When a property owner cannot be identified, proceeds will be collected for each sale, and that amount less administrative costs for the distribution are held by a third party until such time as the actual property owner stakes their claim on their property. At that time, the property owner can gain the same rights over distribution of their property as anyone else who has been identified as a property owner, and all parties who make use of the unidentified property owner clearing house will be obligated to abide by the property owner's decisions.
Monopoly power doesn't exist, because any property owner may opt to use any other distribution channel for their property, and all property that is being copied and distributed by Google can also be copied and distributed by any other party who desires to take the effort to scan the original work and transmit proceeds to the third party property owner clearing house for any property which they haven't explicitly gained the right to distribute.
You're correct that this principle can be applied to any other media. I see no reason why it shouldn't.
Re:OMG (Score:3, Informative)
"To promote the Progress of Science and useful Arts". Getting the most into the public domain the fastest may or may not be the best way of doing that.
Well, just science, actually, which meant knowledge, back in the late 18th century when they wrote the Constitution. The useful arts are what patents are supposed to promote. (We have more vestiges of art meaning a technical skill: prior art, state of the art technology, a person having ordinary skill in the art, etc.)
Anyway, as it happens, getting the most into the public domain the fastest is basically exactly the best way to promote the progress of science. Consider a utopia of knowledge: Everyone who can create works, and is willing to create works, does so. These works may be instantly published to everyone else in the world, who may choose to enjoy or ignore those works as they see fit. Everyone has a universal library, containing all known published works. If one person enjoys a work, he might make some copies at trivial cost in order to give them to other people he knows who, he thinks, would also enjoy it. If an old work is discovered in some ancient ruin, copies are made and made available to everyone, so that the work is no longer rare, and no longer in danger of being destroyed and lost forever. If someone wants to create a work, they can do so, whether that work is original or derivative of something else; the creative impulse is never squashed or dismissed. Works might not all be good -- in fact, most will be lousy -- but that's true of anything.
That's the ideal world: One where public knowledge is preserved and made available to everyone for every purpose and at the least or zero cost. The reason we can't really have that is because we don't have the resources to afford it. Not everyone who wants to act can spend all their time at it without concern for basic necessities. Because our resources are limited, we don't get so many works created if authors can't make money derived from those works.
Now, sometimes they can -- Shakespeare had no copyrights as we know them, but became reasonably successful financially because he got a share of the box office from his own theater company, and invested wisely. He didn't get money from other actors staging his plays, but neither did he have to pay the people he copied from when he wrote them, nor pay other playwrights when he staged their plays. And, closer to home, I used to be a professional artist, and I made a comfortable living, but that was by selling my labor (which I still do, now that I'm a lawyer). Neither I, nor any of my clients, made money based on copyrights, and a total lack of copyrights would not have made us a penny poorer. Most fine artists don't rely on copyright to make a living, not that most artists of any sort make a living from their art anyway, even with copyrights.
So if works are most valuable to the public, and most promote the progress of knowledge if they are in the public domain -- free to acquire, share with others, base more works upon, etc. -- but we might be able to increase the number of works generally by granting copyrights -- making authorship more attractive financially, though other incentives exist independently of copyright -- then surely we only want to grant copyrights for as short a period as possible, with as few restrictions as possible, in order to get the most works in the public domain the fastest.
No copyright would get works in faster, but there'd be fewer of them. More than the ideal amount of copyright would not result in as many works (the financial incentive only goes so far, is iffy to begin with, and can result in authors engaging in anti-competitive behavior against one another, rather than compete fairly), and less freedom and utility for the public.
Still, if you have an idea that would result in a greater net public benefit than copyright could ever deliver -- the current system is a bad implementation, however -- feel free to tell us about it.