Todays News: Singel-Minded: To the Whingers Go the Spoils in Google Books Decision

By Ryan Singel
March 29, 2011 |
2:28 pm |
Categories: Commentary, Intellectual Property

ANALYSIS — Last week federal court judge Denny Chin gave a thumbs down to a settlement between Google and the Authors Guild that would have paved the way for the search giant to create an online library and bookstore on a scale previously only seen in science fiction.

Judge Chin, reflecting the concerns of hundreds of commenters including the Justice Department, struck down the settlement, saying the deal went too far and would reward Google for its audacity in scanning books without getting permission.

The decision was widely praised — including by digital rights groups — perhaps in no small part because it dealt a setback to a company that often forces us, without asking first, to reconsider what it means to live in an information age. Take the project of photographing every house and every road in the world as one big example of that hubris.

But that celebration is a shame because the world will be poorer for the decision.

Here’s the benefits you won’t be getting, as enumerated by Chin himself in his decision.

Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books. Digitization will facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created. Older books — particularly out-of-print books, many of which are falling apart buried in library stacks — will be preserved and given new life.

Who won then? The copyright whingers.

Take the bloke who complained that “I do not want my books to be digitized.” (Yes, he got quoted in the decision.) Never mind that the settlement would allow the fellow to opt-out of having his books digitized, if he so liked — despite the fact that it’s very clearly fair use in the United States for Google to digitize any copyrighted book and use snippets of it in search results.

Here’s another passage from the decision:

“A 79-year old nature writer and author of 23 books illustrated with photographs of animals in the wild worries that the loss of control over her works could result in their being used to “vilif[y] the wildlife I spent my life trying to help the public come to understand and protect.”

Yes, the paranoid and the curmudgeonly get the veto over the library of the future because well it might actually get them readers.

Google’s project to digitize the world’s books began by scanning millions of books from university libraries. Some were old enough to have fallen out of copyright — making them public domain works that can be used and sold by anyone for any reason. Others were books in copyright and in print, some of them out of copyright and out of print.

Some — the so-called orphans — were copyrighted by people who could not be found.

Google Books distinguished between them. Millions of public domain books were put online, where people could read them and download them as PDFs for free.

And all of the scanned books were used in web searches — just snippets from the books. Those search results, such as this search for “economic regionalism is vanishing” include links to where to buy the quoted books online if it is in print. That’s an incredible advancement in making stored human knowledge searchable.

But that was exactly what authors sued over. Google was sued not for selling out-of-print books, but for digitizing books and then using snippets from copyrighted works in search results.

You’d think this was something authors would like.

In fact, there’s a huge business known as Search Engine Optimization that focuses on getting people’s copyrighted work — their websites — to rank higher in Google search. The math is simple: ranking highly in Google search equals income for that copyright holder.

But those who want to opt-out their website out of Google’s search can do so with a simple file known as robots.txt that tells search engines to go away. Google Books offers a similar opt-out for authors.

But authors felt that copyright meant they had total control over their work and that it was unfair that Google made money off search ads on search result pages that included snippets of their work. So they sued.

The authors would have lost in court.

Google won a court case in 2007 that made it perfectly clear that using small portions of copyrighted works in its search results — and even making copies that live on Google’s servers — is legally defensible since it is transformative, creative and publicly beneficial without significant harm to the copyright holders.

If Google had fought this suit on those grounds, as many digital rights groups hoped it would, it would have likely won and set a precedent for other innovators who often find themselves crushed by lawsuits from organizations like the MPAA and RIAA.

Google instead worked out a deal with the Authors Guild. The settlement provided hundreds of dollars each to authors whose books had been scanned and even offered a percentage of the revenue from ads that appear in Google book search. More controversially, Google got the right to sell out-of-print and orphaned works — giving a share to the copyright holders and holding the money for the unknown authors in a trust, should they come calling to claim their book.

Chin’s main objections to this agreement are procedural and anti-trust: that the settlement’s scope is bigger than the complaint and that Google could become a search monopolist.

But here Chin tips his hand — Google gets chastised for its innovation and having the guts to scan copyrighted works without getting permission — even though it’s almost certainly in the legal clear. In short, he dislikes the settlement that lets Google sell the orphan books, because he thinks Google’s innovation was naughty.

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.’”"

So here we have it. Google was naughty for not asking permission from every schmuck in the world who owns a copyright before it dared to try to create the library of the future. A library that would let anyone with a net connection — rich, poor, blind and sighted alike — search, sample, read and buy nearly any book ever published (at least those published in the U.S.).

But it’s exactly that naughtiness that allows innovation to flourish, despite copyright holder’s claims to own every aspect of their work — as we’ve seen in the development of player pianos, radio, television, cable, satellite broadcasting, as well as online search and media companies.

Chin also suggests that Google will get a search monopoly if the settlement were approved.

That’s ridiculous.

Google already has a de facto search monopoly in the U.S. because its search engine is markedly better than its competitors’. And even without the settlement, Google will continue to include in its search results snippets from the books it has scanned without permission. Blocking Google from selling and displaying orphan books won’t prevent Google from retaining 70 percent search market share.

Chin further objects that under the settlement, Google’s search competitors wouldn’t be allowed to use Google’s digital copies of these books to power their own book search engines without Google’s permission, writing, “Google’s ability to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.”

But that’s just false. Microsoft, Amazon and Yahoo are free to digitize orphan works and search through them — just as Google did. The settlement only gives Google would the ability to deny competitors the ability to search Google’s copy of orphan books.

But the big hang-up for Chin is concern for copyright holders of orphan works.

Chin frets that the settlement gives away the property rights of authors and publishers who can’t be found — and there are millions, perhaps tens of millions, of such books.

Take as a hypothetical that Google scanned a book deep from within a university’s stacks — say a novel about the battle of Guadalcanal, written anonymously in 1950, and put into print by a publishing house that folded not long after.

The settlement would allow Google to make the whole book available to read online in university and public library terminals, to show a few pages to regular searchers and to sell copies of the book.

Google would put aside 70 percent of each sale in the hands of non-profit entity, where it could be claimed by the author, should he or his heirs come find it. The book would rise from obscurity and be part of our history again (much as many out-of-copyright works indexed by Google Books helped former Wired.com writer Alexis Madrigal compose his history of green energy technology, Powering the Dream).

But Chin argues that the property rights of that long-lost author trump those public benefits — even though those property rights are worth exactly nothing.

Granted there are some good arguments against the settlement since Google does obtain legal immunity from being sued for copyright infringement for scanning, displaying and selling the orphan books. Other companies that wanted to get the same rights will have to go through the same process as Google — digitize the books, get sued and come to a settlement.

Chin, and folks like Public Knowledge, say that the settlement handles matters best left to Congress.

But Congress has already failed twice to pass a law to figure out the problem of orphan works, and Congress would be far more likely to craft a real solution, one that allows a multitude of rich online libraries of the world’s knowledge, if one already exists.

Killing off the one promising digital library at the behest of copyright maximalists and jealous competitors is no way to get a dithering Congress to make a decision that will benefit the public, especially when our Congress is more interested in partisan stupidity than social good.

Indeed, Congress’s recent record on copyright has largely been to strengthen the hand of copyright owners, such as in 1999, when copyright terms were extended again to life plus 70 years and 120 years for corporate copyrights (done to protect Disney’s Mickey Mouse franchise).

No, Congress is not going to make it so that any company can make use of copyrighted works of authors who can’t be found. At least not any time soon.

So it will likely be decades until we have a true online library for students, scholars, historians, genealogists, enthusiasts and citizens.

But at least we, through the hand of Judge Denny Chin, got to poke a stick in the eye of Google.

And even better we protected the rights of copyright curmudgeons.

Too bad we also used that stick to beat some bruises into innovation and the public good.

A photo of the Great Table in the Manchester Library before it closed for renovation. Credit: ricardo266

Todays News

Wednesday, March 30, 2011

Singel-Minded: To the Whingers Go the Spoils in Google Books Decision

Singel-Minded: To the Whingers Go the Spoils in the Google Books Decision

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