Two cheers for Google Books

Editors' note: This is a guest column. See Larry Downes' bio below.

A month and a half after Google and the leading trade associations for publishers and authors withdrew their proposed settlement over Google Books, the parties on Friday filed a new version of the agreement.

The hope is that this new draft (now weighing in at 165 pages) will respond to the many objections to the original version, particularly those from the U.S. Department of Justice.

Significantly, the revised settlement excludes books published outside the United States, United Kingdom, Canada, and Australia. And the registry that will collect royalties on sales of out-of-print works whose copyright owners are unknown will now act independently of Google. Some privacy concerns were also clarified. But I doubt that those who screamed the loudest will be satisfied with the changed document.

What the objectors--including most of Google's competitors, regulators, and a gaggle of overwrought law professors--seemed to dislike most was Google's audacity, specifically in using technology to solve a problem created by lawmakers in the first place. New objections, more attenuated and jargon-laded, will no doubt follow, until federal judge Denny Chin grabs the reigns of this increasingly unwieldy class action and steers it to resolution.

Let's back up. In 2004, Google began to scan all of the books languishing in some of the world's leading research libraries. Today, Google Books lets anyone search the contents of these libraries for free. For books whose copyright has expired, Google makes the entire text available and downloadable.

Citing possible copyright infringement, however, Google was sued in 2005 by the leading trade associations for authors and publishers. After three years of intensive negotiations, the two sides worked out a detailed settlement. The original agreement seemed to create a cheap and elegant solution to a problem that has plagued scholars, librarians, and ordinary readers for decades: how to provide low-cost access to books no longer in print but whose copyrights have yet to expire.

But then the objections began pouring into Judge Chin's chambers. The problem, according to most of these complaints, is that the agreement gives too much market power to Google over out-of-print books. How's that again? Out-of-print books, by definition, are those for which there is no market today, nor likely to be one any time in the future.

Thanks to advances in information technology, it may now be cost-effective to offer these works to their limited, if passionate, audiences. Google Books, in any case, is investing heavily to develop these markets. The revised settlement makes it even easier for potential competitors to do the same without having to rescan the old books. But let's not kid ourselves. It will be some time before we know if there's any revenue here worth fighting about, let alone an antitrust problem.

The real problem, which no one has the guts to face directly, is the sad state of copyright law. Copyright grants authors and their publishers the exclusive right to make copies of their work in order to encourage the growth of intellectual life, from novels to research papers to songs to cookbooks.

Lawmakers are supposed to balance that powerful control--in this case, a legal monopoly--against the value to consumers of letting information flow as freely as possible. That's a goal that has become fantastically easier and cheaper with the creation of the World Wide Web, high-resolution cell phone displays and other portable reading devices, and the digitization of just about all the world's information, much of it thanks to companies like Google.

Yet even as information distribution gets cheaper, entertainment industry lobbyists have pressured lawmakers to extend the copyright monopoly to absurd levels. The "fair use" exceptions have been all but eliminated through strategic litigating. Civil and criminal penalties for infringement are regularly enhanced, as recently as last year. In the only case of thousands brought by the recording industry that actually went to trial, a file-sharing user was found liable for nearly $2 million dollars in damages for sharing 24 songs. Yet the Obama Justice Department filed a brief supporting that penalty as "rational."

Worst of all, consumers must wait longer and longer for works to enter the public domain, where they can be freely copied, adapted, and sampled. As recently as 1909, a copyright lasted only 28 years in the United States. Since then, Congress has repeatedly extended it and applied the extensions retroactively. Today, copyright runs from the moment of creation until the death of the author, plus another 70 years.

Acknowledging that the U.S. Constitution requires copyright to be for "limited times," the late Congressman Sonny Bono once proposed changing the term to forever minus a day. No copyright on work produced by Disney has ever expired. That's not a coincidence.

Since most published works never make a profit, however, millions of books still under copyright are now out of print, existing only in the ghost towns of a few dingy library stacks. The authors of a growing number of these works are long dead, having made no provision for the inheritance of their rights. Since these books cannot be copied without permission, and no one knows who can give that permission, they inhabit a kind of intellectual limbo. Copyright scholars refer to them as "orphan works."

So far, Google has scanned 10 million books. Two million are old enough to be free of copyright, and another 2 million are still in print (Google has made separate agreements with the publishers of those books). The other 6 million are in copyright but out of print, many of them orphans. Thanks to the madness of recent copyright extensions, that category is certain to get bigger all the time. Congress has tried and failed for years to pass legislation dealing with orphan works.

In large part, the revised Google Books settlement would bring these books back to the world of the living. How? Copyright owners who don't want to participate in the deal must opt out of it, impossible by definition for orphan works. (The opt-out, to dispel a common myth, can occur at any time, not just before the settlement is approved.) So Google would have the right to make these books available in digital form, with any revenue going to a new nonprofit registry that will attempt to locate and compensate the owners.

Tellingly, the objectors say little to nothing about the impact of the settlement on consumers, who already benefit from Google's efforts and would benefit even more, if the agreement is approved.

The interests of information users ought to be the top priority of U.S. copyright officials, but Marybeth Peters, U.S. Register of Copyrights, condemned the original agreement. She spoke on behalf of the theoretical owners of orphan works--authors and publishers, in other words, who were given a powerful monopoly and then abandoned it. Peters accused Google and the organizations who sued the company of conspiring to execute an "end-run around copyright law as we know it."

There's the real problem. Copyright "as we know it" is a disaster and an embarrassment. Rather than complain about the ingenuity, leadership, and careful diplomacy of Google in trying to clean it up, why doesn't Peters focus on the job she was hired to do: urging Congress to bring copyright law in line with the realities of the 21st century?

Congress and its enthrallment to entertainment lobbyists created this mess. Reset the balance of copyright to something fair for authors and consumers, and all the objections to the Google Books settlement evaporate.

[edenson]

As a former copyright holder on hundreds if not thousands of musical works, I have to agree that copyright law in the US is a mess, and a real obstacle to sharing knowledge and fostering intellectual development. I favor a much shorter term for copyright of written materials - possibly 10 years. Surely the song recording model, with anyone able to use the work provided that they pay the copyright holder, who gets a universally fixed rate per use, would be a good model for written materials.

[Renegade Knight]

I've heard reference to a study in other C|net articles that say the optimal lenght of copyright is short (I'm thinking 7 years but that's from memory and that would need checked). It's interesting to see that you are in general agreement with a shorter time frame.

[kgsbca]

I don't have an issue with the terms of the proposed settlement, but I am not happy that copyright law gets re-written by a settlement to a class action lawsuit. That is disturbing, as it allows two private parties to set precedent for future class action suits to effectively establish property rights. I can't really blame google for pursuing a settlement, but in the long term this may have created a vehicle for other companies, with different motives, to work around laws that are obsolete or incomplete, in a way that does not serve the best interests of the public.

A settlement should only apply to the members of the class that brought the lawsuit; the scope of this settlement includes everybody who owns a copyright. That doesn't sound like a good idea, more like expansion on the concept that the constitution is "just a ********** piece of paper" (I'm quoting a recent president here, guess which one).

[Renegade Knight]

I'm sorry but orphaned books in no way serve the interests of the public let alone their authors. This method of distribution regardless of who does it gives new life to orphaned works and serves the public interest. If the true owner of the orphan chooses to "unorphan" their work they can assert their control at any time.

It's a pragmatic solution to the problems of modern copyright.

[apple-pi]

@kgsbca

"in the long term this may have created a vehicle for other companies, with different motives, to work around laws that are obsolete or incomplete, in a way that does not serve the best interests of the public".

I would generally agree with you. However, the way I see the issue at the moment, companies are already quite successful at "work[ing] around laws that are obsolete or incomplete, in a way that does not serve the best interests of the public". I think that Copyright Term Extension Act of 1998 (also known as "Mickey Mouse Protection Act") is the best example of how must the system is broken at the moment.

Here is a wikipedia link if you are interested: http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

On the same wikipedia page you can also see a nice diagram of how copyright in the US was extended again and again. I find no other way to interpret this but as a complete lack of political will to protect public interests.

[timothywmurray]

I agree completely that this settlement should be limited to those who actually brought the lawsuit. The parties who negotiated on behalf of publishers and authors do not represent the interests of all or even most authors and publishers and are certainly not advocates for the dissemination and preservation of knowledge. In short the settlement should only apply to the members of the class defined as people in the room when the settlement was negotiated. Granting class action status to the lawsuit may have been a good idea but if this is the settlement they come up with class action status is not appropriate and should be stripped.

[CraigC2000]

This is probably the clearest and most rational article I have ever read about this subject.

Bravo to cnet for publishing this guest column from someone who is actually knowledgeable enough about the subject to explain it in such a clear and precise manner.

[Renegade Knight]

Ditto.

[gefitz]

More ditto.

[richard993]

If Google makes money off someone's article, then that person who wrote the article deserves some form of profit sharing. Google Books was not created to provide a free service to everyone, it was created to boost profits and improve search results. The problem with Google is that it uses content to make a huge profit but does not reward the content authors unless they modify their site to include Google ads. This is hard to do with print publications and "driving traffic" towards your site is not an applicable excuse for using content when it comes to print. Why should Google be allowed to scan a copyrighted book, use the words in the book for mining algorithms, and make that book available online with ads against it, without paying the author any royalties?

I'm sorry, but did you not just read the above article? It seemed quite straight-forward, to me at least, that Google pays the proper fees for offering the 2 million books that are still under copyright with clear owners and offers for free the another 2 million that have gone past copyright. The deal is mostly concerned with the handling of these so called "orphan books" which are still under copyright but have fallen out of print and have no clear owner (i.e. - the author died and left no stipulations as to who should receive further payments). It seems any profits Google makes from these books would go to a non-profit registry dedicated to locating who should receive payment for these orphan books. So Google is essentially striving to make sure each of these intellectual entities does not disappear forever. I'm not sure how you see someone is getting cheated out of that deal.

[Renegade Knight]

You are confusing two issues. Indexing the internet so we can even find an article. That's fair use. The second is scanning books that have no economic value and making them available thereby giving them at least some value for which the authors or approved agents will be paid. Remember before nobody got paid because nothing got published in any form that was viable.

[richard993]

Your both forgetting Google's original intent before they got sued. Had the publishers not sued Google, Google would have allowed users to search copyrighted text and sold ads against it. See the original story and why Google got sued in the first place on CNET. I'm with the publishers on this one, and my comments are still relevant to this article.

Ok, so just to clarify, you're upset about something that Google wanted to do but, because of this lawsuit, can't actually do anymore?

[richard993]

I'm saying that thanks to the new agreement, the rights of many authors have been protected. Unlike many web sites which are publicly accessible, books are print matter which are only accessible by the owner of the asset (not including public libraries).
There are a lot more implications which the public and authors are still not aware of. Books generally have much better quality in terms of content than the web, so it is understandable why Google would want to index the content and apply contextual algorithms on it, thus yielding much cleaner results. BUT data mining or training mining models using the content of copyrighted materials should not be allowed because it is deriving information from and profiting from them without rewarding the authors. This is a lot bigger deal than many people think, it not simply making copyrighted works available to the public, after all, Google is saying that they want to do the public a service, but deep down in Googleplex, there are a lot more interesting things happening.

[j_berman]

Well done, Mr. Downes. I couldn't agree with you more. Now let me pose a difficult question: Can I print your article, post it on the wall of my office, and send copies of this to my friends and colleagues without violating any copyright law? After all, you do not appear to be dead, yet, and this article is clearly not orphaned. (yes, this is a rhetorical question and you need not answer.)

[philbogle]

j_berman: I'm having trouble following the rhetorical point. The settlement considers orphaned works, so it wouldn't apply to the article. In any event, this being the open web, you'd certainly be free to share links to the article and discuss it freely with all your friends.

[wra13]

I find all of the controversy over old books on-line dis-heartening. I'm older, grew up reading books, but bought my first computer in 1980 with 48K of memory; type a seven page document and you hit the limits for the computer. So, I have an appreciation for the ability to store and maintain hundreds of books on-line or with current pc systems. I'm into science (math, physics, geometry, mechanics, etc.) and access to older books gives me a wealth of insight into how modern processes and industry developed. In algebra, or strict mathematics, 2 plus 2 is 4 no matter what book it's printed in, and this type of knowledge should not be copyright protected. Are we trying to keep basic and useful information from the public? There's no sense to that considering the state of our educational systems. If anything we should be advertising to let the public know where to find these books on-line. I have two advanced degrees and besides science I like to read poetry, old magazine, and almost anything historical. Over the years, by rummaging through book stores, I have collected hundreds of old books which are difficult to properly maintain and take up a lot of space. It's so much easier to have these books on line, free to access. I recently obtained information from an old on-line book from the turn of the last century on how to build an airplane and used the information to construct a model; is this the sacred information we should keep from public access with overly-restrictive laws? What I see as a public service from Google and the Guttenberg Project, and others, some people are bound to distort in meaning and intent. But, as much as possible information from these older, orphaned books should be made available to the public for little or no charge. Blame Google, you would be better off blaming the government for not copying these books for public access in the first place. There are many people like me who just enjoy reading for the purpose of self education, and I don't see that as wrong, especially with books that are 50, 80, or 100 years or more old. If there are writers or their families that have copyrights they should be paid for their writing efforts, but within reason. Allowing a copyright to last longer than the average reader will live makes no sense and there must come a reasonable end to copyright protection, especially when the written information is eclipsed by more modern text sources. I can imagine if old scrolls and historic documents through the ages were copyrighted, we would not have a constitution because so much of that document was taken from the writings of John Locke and others. Going crazy with excessive copyrights is crazy.

[freemarket--2008]

Ever heard of paragraphs?

[apple-pi]

Thank you very much for taking your time to write this. I have been keeping track of the issue for quite a while, and I believe this is the most thoughtful article on the subject that I have encountered so far.

[reyjacobs]

This is good news. It seems like every time I go to find a book I want, its out of print. Then I look at some place like Abebooks where they're trying to sell a used copy for like $500 or more and you know it was only around $30 when it was in print.

[reyjacobs]

Nobody makes money off of out of print books still under copyright except for used book sellers, and they are NOT the copyright owners.

[QA_Tester]

Let's see what happens when third party self-publishing tools will allow to publish rights protected eBooks

[Douglas_Fevens]

Larry Downes said:
?The original agreement seemed to create a cheap and elegant solution to a problem that has plagued scholars, librarians, and ordinary readers for decades: how to provide low-cost access to books no longer in print but whose copyrights have yet to expire.?

What are copyrights? To me copyrights are a form of human rights ? the right of a creator to own the products that are produced from the labours of his brain. They protect us from intellectual slavery. Mr. Downes, is four years to long to ask for copyright protection? My ?Fevens, a family history? was published in 2004 and in 2008 Google & Company (the libraries that supply Google with in-copyright works- in the case of ?Fevens?, the University of Wisconsin) digitized it cover to cover there by creating digital printing plates. Even though I registered my copyright with the Canadian Intellectual Property Office which has an online database of copyright holders and their contact information, my consent was never sought. I found out by accident on May 13, 2009 that my work was searchable and that ?snippets? were displayed at the Google web site. ?Fair use,? you say. If I had not intervened, under the terms of the Google Book Settlement, after April 5, 2011 Google Inc. would have owned the digital rights to my book to do with as they pleased. You can be sure that after April 5, 2011 Google would have been announcing, ?Thousands more titles have been added to our Esspresso Book Machines! Come and get em!? This is the ?end-run around [of] copyright law as we know it.?, Marybeth Peters spoke of. If you consider theft ?cheap and elegant? than I guess you can consider that the Google Books Settlement a means to ?provide low-cost access to books no longer in print but whose copyrights have yet to expire.?
Douglas Fevens,
Halifax, Nova Scotia

[Douglas_Fevens]

Let me try this again-
Larry Downes said:
"The original agreement seemed to create a cheap and elegant solution to a problem that has plagued scholars, librarians, and ordinary readers for decades: how to provide low-cost access to books no longer in print but whose copyrights have yet to expire."

What are copyrights? To me copyrights are a form of human rights- the right of a creator to own the products that are produced from the labours of his brain. They protect us from intellectual slavery. Mr. Downes, is four years to long to ask for copyright protection? My "Fevens, a family history" was published in 2004 and in 2008 Google & Company (the libraries that supply Google with in-copyright works- in the case of "Fevens", the University of Wisconsin) digitized it cover to cover there by creating digital printing plates. Even though I registered my copyright with the Canadian Intellectual Property Office which has an online database of copyright holders and their contact information, my consent was never sought. I found out by accident on May 13, 2009 that my work was searchable and that "snippets" were displayed at the Google web site. "Fair use," you say. If I had not intervened, under the terms of the Google Book Settlement, after April 5, 2011 Google Inc. would have owned the digital rights to my book to do with as they pleased. You can be sure that after April 5, 2011 Google would have been announcing, "Thousands more titles have been added to our Esspresso Book Machines! Come and get em!" This is the "end-run around [of] copyright law as we know it", Marybeth Peters spoke of. If you consider theft "cheap and elegant" than I guess you can consider that the Google Books Settlement a means to "provide low-cost access to books no longer in print but whose copyrights have yet to expire."
Douglas Fevens,
Halifax, Nova Scotia

"after April 5, 2011 Google Inc. would have owned the digital rights to my book to do with as they pleased." The Settlement is unfortunately a technical legal document, but it's simply incorrect to say that Google would ever become the owner of digital rights, at any time. The April 5th date is significant only as the deadline for copyright holders (usually the publisher, not the author, for a commercial publication anyway) to request complete removal from the database. After that date, copyright holders can at any time opt out of any or all of the various display options. Even if they don't do that, however, Google never becomes the owner of any rights, nor can they "do as they please" with their scanned copies. Revenue from use of the texts, if any, goes to the Registry and the Registry must attempt to locate the holder of the copyright for several years.

[Douglas_Fevens]

To the person who commented at 7:32 PM PST (Mr. No Name?)
You are right Mr. No Name in that the Google Book Settlement is a technical document- it is written in the manner in which permits corporations to run roughshod over copyright laws that protect creators from exploitation of their works by others. I based my comments on the published comments of respected copyright lawyers. Even though Larry Downes may believe that the digitization of my book by Google and Company, and the display of snippets by Google Inc. "Fair Use", I do not. It would seem that the American Department justice agrees with me:

"Nor is it Reasonable to think that a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reason to think history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation as a means of obtaining approval for licensing provisions that could not otherwise be negotiated lawfully. "[Letter to the Court, Re: Google Book Settlement, Pages 23-24]

Douglas Fevens,
Halifax, Nova Scotia

[mathteacher909]

Here's my view (as it relates to copyright and books):

Copyright protection should apply as long as a piece is in print.

If the piece is allowed to go out of print, then it stays under copyright protection for (let's say) 25 years.

Once a piece has been out of print for 25 years, then it passes into the public domain.

Tying copyright to an author's life in a digital age is just silly. But tying copyright to works that are in print makes complete sense. And allowing a substantial period of time for copyright to be enforced after a work goes out of print means that people who want the piece but don't want to buy it would have to wait such a long period of time as to not be worth the wait.

How hard is this to understand?

I don't know if this works for non print media, but as far as published books go, I can't see anything substantially objectionable to it. Periodicals would have to be treated differently, since by definition their shelf life is much shorter, and so the copyright on periodicals would have to be treated differently, perhaps by saying that all articles pass into the public domain 75 years after the first date of publication.

[freemarket--2008]

Periodicals typically have a much shorter useful life than most other works except for research purposes. They in no way deserve any special treatment.

[robato1234]

copyright is intellectual property rights. It has nothing to do with print shops or profits. If I paint a painting to give as a gift to my mother with no intention of selling it, what gives google the right to copy it and stick it in the middle of a page full of ads? NONE.

movies, music, paintings, peoms, books....anything you create is YOURS to do what you want, be it publish it through a printshop or just have a single copy that nobody on earth will ever get to see. Regardless, it is YOURS to do what YOU WANT, not have a trillion dollar cooperation steal it from you and churn profts from ad clicks....unless of course you give them permission to do so.

It blows my mind how little respect people have towards others hard work, just so they can get free stuff.

[QA_Tester]

@robato1234

What if got paid for it?

[robato1234]

@QA_Tester

"What if got paid for it?"

As I said, it doesnt matter about profits. Perhaps I dont WANT to sell my work to you. Perhaps I want $5 million! Google has no right to just steal the work of others so that they can simply flap up a 2 cent per click ad all over it. Its up to the author of the work to decide what price they want for their work, not what google wants to dictate after they have stolen it.

[hoconnell]

If you are thinking about the effect on consumers, it's important to note that the new settlement also fails to address any of the privacy problems present in the first proposed settlement. In a library you can browse and read anonymously, your patron records are deleted regularly, and disclosure of your patron record is controlled by state law and librarian ethics. None of these privacy-protecting controls apply to Google Book Search.

For more information check out the ACLU of Northern California?s Google Book page at: http://www.aclunc.org/issues/technology/google_don%27t_close_the_book_on_reader_privacy.shtml

Hari O?Connell
ACLU of Northern California - Technology and Civil Liberties Program

[aclu-nc]

Privacy was left out of the deal: http://www.aclunc.org/issues/technology/blog/amended_google_book_settlement_doesn%27t_deal_with_privacy_problems.shtml