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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."
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Grimmelmann On Google Books Settlement Fairness Hearing

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  • by Anonymous Coward on Monday February 22, 2010 @02:57AM (#31226626)

    Google's position is that other people's property can be sold to the public by a third party without permission from the owner or creator as long as the seller has copied it. The action of copying a work then confers the right to sell or distribute, with the controlling legal test being the convenience of some user.

    The opt-out takings clause pretends a nonexistant practical protection for the original owners, which becomes impossible when the courts later invalidate google's claim to monopoly rights, rights which fly in the face of equal application of the law.

    Since copying, rather than creation or contract, provides a very weak claim for the seisure of monopoly rights to property, the courts will necessarily, over time, invalidate the monopoly claim, leaving the principle that copying confers distribution rights to intellectual property, as long the distribution is convenient to the public, defined as any user except the author or owner.

    There is no strong reason that such a legal principle, once established in law, cannot be extended to other kinds of digital property, such as medical, financial, and legal records, given their obvious value in the marketplace to users who are well endowed to fund both legislative and court based extensions. The action necessary to obtain such rights is, according to google, copying, a convenient test for the internet age.

    Remember, your privacy is not a contract, it is just a policy, subject to revocation at any time.

  • Re:OMG (Score:5, Interesting)

    by seifried ( 12921 ) on Monday February 22, 2010 @03:53AM (#31226846) Homepage
    Simple, you have a yearly registration and nominal fee (say $1 per work). If the copyright holder doesn't register and pay the fee within say 30 days of a new year the copyright lapses and the work enters the public domain. Optionally you have the fee increase with the value of the copyrighted material (this could be done arbitrarily by raising the fee yearly, if the copyrighted material is worth enough money the fee will continue to be registered). This is basically the same idea as property taxes (you pay a few to keep the land even if you "own" it). The money made from this fee system could be tossed into general revenue, used to pay for the arts/etc, or whatever. I think the cost of copyright should be carried by the copyright holder and not by society (as it is right now since one automatically gets copyright for an absurdly long time just by creating a work).
  • Re:OMG (Score:4, Interesting)

    by seifried ( 12921 ) on Monday February 22, 2010 @04:21AM (#31226950) Homepage
    Last I checked under my method you'd be able to create as much as you desire, it just wouldn't be copyrighted for a very long time. I give away a lot of my work under creative commons because I believe it's in my best interests to actually make things available to people for free and allow them to re purpose it. As it turns out this is correct and I've made a living for over a decade now doing this. It's not my job to find a workable business model that you like.
  • by Kjella ( 173770 ) on Monday February 22, 2010 @04:23AM (#31226960) Homepage

    But who sets the proceeds? Can a non-profit like Project Gutenberg assume that the copyright holder is making no proceeds today, so not generating any proceeds themselves is also okay? If so, then essentially they could start indexing all works in copyright or not and only halt when so ordered. That'd go a long way to limit copyright...

  • Re:OMG (Score:3, Interesting)

    by micheas ( 231635 ) on Monday February 22, 2010 @05:00AM (#31227096) Homepage Journal

    The fastest way to get as much into the Public Domain as soon as possible is to abandon copyright, therefore I cannot agree with your premise.

    I believe that Copyright exists to provide a person with the legal right of control over works which they own (and recourse should their control be usurped) up to a reasonable point, when the ownership is transferred to the state. That "reasonable point" has been debated and extended over time, complicating our current system.

    Abandonware, or orphaned works, don't have a legal entity beyond works which do not have an identifiable owner, however so long as we have a date for the work's creation the work is still subject to that "reasonable point", and any time an owner can be identified, the work is no longer abandoned or orphaned.

    If your principle of abandonware were instituted, how would a work be declared as abandonware, and how would you deal with the situation when the owner of an abandoned work comes forward after-the-fact?

    The theory is that if you have copyright protections, people will produce more, and therefore more will wind up in the public domain.

    If this is not true, then why should the general populous allow copyright to exist? Being as we are not benefiting from copyright law, should we not scrap it?

  • by ortholattice ( 175065 ) on Monday February 22, 2010 @05:46AM (#31227266)
    Here is what I am confused about. The controversy seems to be about whether Google has the right to display excerpts from books they've copied, without permission from the copyright holder.

    However, I haven't seen anyone question the fact that Google has already copied millions of entire books that they didn't purchase and don't physically own. When did this become legal, and why can't I do the same (or can I)?

    Google has presumably saved $100s of millions by not having to purchase the books they are scanning, like ordinary people (in the U.S.) are expected to. (And I get the sense that ordinary people may even be taking a legal risk by scanning books they do own, because then they won't have to buy the ebook version.) What makes Google special in this regard? Why aren't they subject to a $200,000 per book (or even per chapter, if based on the RIAA model) copyright violation suit?

    I have an interest in this, because I am collecting PDFs of my own library (which I have purchased and physically own). Yet it seems that I may be skirting the law, particularly if I download the PDFs from piratebay etc., risking a possible huge infringement suit.

    Actually, I would pay a reasonable price for a clean, unsecured PDF of better quality and smaller file size than what I can download or scan myself, for my permanent electronic library, but publishers have chosen not to offer this. But I will never buy a DRMed ebook that in I can't read on any device I want, that will stop working when the approved reader dies or the company changes its mind or goes out of business. Just like a my physical library of fine books, I want a permanent electronic library of high-quality PDFs.

  • Re:Internet Archive (Score:4, Interesting)

    by plasticsquirrel ( 637166 ) on Monday February 22, 2010 @06:36AM (#31227500)
    Why not? Books automatically have their copyrights expire after a certain period. Why shouldn't unclaimed orphaned books become part of the public domain? For example, if a book is unclaimed and has been orphaned for five years, it should be in the public domain. This would be beneficial to everyone, giving the authors some fame and prestige, giving us some rare books otherwise unavailable, and not hurting any publishers who aren't making money from them anyways. It would be good for all of society.

    The Google settlement is only good for Google, and those who don't mind asking Google if they can read books through a glass window. After all, Google will not allow anyone to download these books. Their job is to hoard information, and to make it available in a way that is convenient enough for individuals, but inconvenient enough that no one could download the data and compete with them. Lazy people think it's okay because it's better than the scraps we have otherwise, but giving one company control of these books is not a solution.
  • Re:OMG (Score:4, Interesting)

    by bit01 ( 644603 ) on Monday February 22, 2010 @07:04AM (#31227648)

    actually pay the government for the mere privilege of creating stuff?

    No. The privilege of stopping billions of people from making a copy, in other words restricting the free speech of billions of people, and arbitrarily enforcing artificial scarcity.

    A small annual fee is chickenfeed for that huge privilege.


    DRM is the #1 cause of software failure today.

  • by QuantumG ( 50515 ) * <> on Monday February 22, 2010 @07:24AM (#31227740) Homepage Journal

    However, I haven't seen anyone question the fact that Google has already copied millions of entire books that they didn't purchase and don't physically own. When did this become legal, and why can't I do the same (or can I)?

    It didn't and that's why there's a class action lawsuit against Google... the problem is, the class and Google have already come to an agreement, but they need permission from the state to enact the settlement. See, the way class action lawsuits work is, if you show up a year after the lawsuit is settled you can say "hey, I want a piece of that!" and they'll give you some, assuming you can prove you're a member of the class. What you can't do is say "hey, I don't agree with that!" cause the case has already been settled. As such, the state has a responsibility to make sure the settlement is fair for those slack members of the class who haven't bothered to turn up to court yet.

  • Re:OMG (Score:2, Interesting)

    by blarkon ( 1712194 ) on Monday February 22, 2010 @08:02AM (#31227928)
    Given that 800 new books are published *every day* - it is fair to say that copyright does entice people to produce. The "there is not such thing as imaginary property" crowd haven't come anywhere near proving that a system without copyright would generate anywhere near this amount of new content (which, because of copyright, isn't just rehashes and remixes of existing copyrighted material). Is dismantling a system that entices authors in English speaking countries to publish 800 new books *every day* worth risking so that less-than-original works based on existing concepts can exist?
  • Re:OMG (Score:4, Interesting)

    by Late Adopter ( 1492849 ) on Monday February 22, 2010 @10:47AM (#31229182)
    Except that over the time period since we've adopted automatic copyright, people have grown used to the right to not have their vacation pictures used by a corporate advertising department that sees them on Flickr. There's a lot of non-commercial works out there, ones that people would (rightly or wrongly) be upset to see misappropriated.

    How about a 5-year grace period before requiring registration?
  • Re:OMG (Score:3, Interesting)

    by DragonWriter ( 970822 ) on Monday February 22, 2010 @06:37PM (#31237438)

    Simple, you have a yearly registration and nominal fee (say $1 per work).

    I think that, at a minimum, you need a reasonable (say 7-10 years) "free" period. (In order to encourage deposit, and thus discourage the loss of works, I'd consider having a strong deposit -- of a copy of the work in the form protected -- requirement, which if not complied with within (say) 1 year would result in the work losing protection, but I wouldn't associate payment with that.)

    I also personally prefer that once you require paying a fee, you make it a fixed-percentage tax on the declared value of the work, with a minimum but no maximum, and allow a work to be bought into the public domain by any interested party (or combination of parties) for the declared value.

    Since even most commercially viable works make the vast majority of the money they earn for their copyright holder in the first few years they exist, this would have little impact on the incentives to create new works. It would also allow creators the choice to keep works under their exclusive control -- if they were willing to pay enough to do so (and thereby compensate the public for the special privilege they would be asking to have extended to them.) And the purchase-into-the-public-domain option would prevent copyright holders from undervaluing works, but also assure that they were fairly -- at the value they themselves set on the work -- compensated for any work taken into the public domain early (short of whatever maximum limit is set on the duration of even paid copyrights.)

"Oh my! An `inflammatory attitude' in alt.flame? Never heard of such a thing..." -- Allen Gwinn, allen@sulaco.Sigma.COM