If Google's Book Scanning Violates Copyright Law, What About The AP's Book Scanning?

from the hard-to-see-the-difference dept

Danny Sullivan does a great job calling out the hypocrisy of the Associated Press yet again. The organization, which has taken a very maximalist position on copyright, where fair use gets mostly ignored, apparently had no problem scanning Sarah Palin's entire book into a computer so that reporters could search it. Of course, this is no different than what Google is doing with its book scanning program (which, again, I still believe is a clear case of fair use). Yet, since the AP seems to take such a limited view on fair use (and has a habit of accusing Google of "stealing" content), it's amusing that it's now trying to defend its actions by claiming that it was legal because it was for the sake of journalism, and the scan wasn't for public consumption. Except, of course, Google's book scanning isn't for "public consumption" of the entire work either, but so people can do a search to find the relevant tidbit of info within the book. The AP's statement on the matter is laughable:

"The book, purchased several days ahead of its on-sale date by the AP, was scanned after the first spot stories moved on the wire from New York so that staffers in bureaus in Washington and Alaska with knowledge of various parts of Gov. Palin's life and political career could read those relevant sections the next day."

Yes, you can understand why they did it, and even why it seems reasonable. But that doesn't change the fact that it appears the AP made an unauthorized copy of the book, in violation of its own interpretation of copyright law. Funny how the law seems oh so different when it limits what you can do, than when it's about limiting what your competitors can do...

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New Google Book Settlement Tries To Appease Worries

from the doesn't-really-change-much dept

Late (very late) Friday, Google and groups representing publishers and authors squeaked in just under the deadline and put forth a revised Book Scanning settlement agreement, designed to address at least some of the concerns and complaints raised by people over the last one. If you want a good breakdown over the changes, check out Danny Sullivan's analysis or James Grimmelmann's. Not surprisingly, the Open Book Alliance is not happy, but seeing as it's a bunch of Google competitors, they were never going to be happy in the first place (and you know that press release was probably 95% written before the actual new terms were released).

In my mind, the biggest news is the new restrictions on countries from which it will scan books. From now on, the book scanning project will only scan books that have registered copyrights in the US, UK, Australia or Canada. This was mainly to address ridiculous concerns by some in Europe that this project -- to help make all books more accessible -- was somehow a threat to European culture. I was in Europe on Friday (well, Saturday there) when the announcement was made, and it actually pissed off the folks I talked to about it -- who felt that their politicians were doing serious harm to European books by having them excluded from such a useful resource.

Separately, a lot of the focus on this new agreement, as with the old agreement, is over how Google treats orphan works. Again, I have to admit that I think most people are making a much bigger deal of this than it warrants. The orphan works stuff really covers a very small number of works. And giving rightsholders ten years to claim their rights seems more than adequate to me. I just don't see what the big deal is here. The real issue is that we have orphan works at all. Under the old (more sensible) copyright regime, you actually had to proactively declare your copyright interest. The only reason we have orphan works at all is that we got rid of such a system in the ongoing effort of copyright maximalists to wipe out the public domain.

Anyway, I think this is all something of a sideshow. I still stand by my original feeling towards the settlement, which is that I'm upset anyone felt it was necessary at all. Google had a strong fair use claim that I would have liked to have seen taken all the way through the courts. And, of course, this settlement really has nothing at all to do with the main issue of the lawsuit (that fair use question) and is really a debate over a separate issue: how to take the books Google scans and trying to turn them into a "book store" rather than more of a "library." And, in doing so, the important fair use question gets completely buried -- which I find unfortunate.

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That's Rich: China Accuses Google Of Censorship

from the look-inward... dept

China, of course, is famous for massive censorship of the internet. Google, on the other hand, is well known for fighting censorship in many cases. Even in China, where it was required to block some searches, Google tried to take as permissive an approach as possible, even letting users know when a site was being blocked (yes, this was quite controversial, but the company did more than many other search engines). So, it does seem a bit surprising to see a headline claiming that China is accusing Google of censorship. Isn't that backwards?

It isn't "China" so much as it's the Chinese Communist Party's main newspaper (so, basically, the paper of record from the government) claiming that Google is not finding a report it put out suggesting that Google's book searching project might violate Chinese authors' copyrights. Of course, that claim is a bit amusing as well, given China's general attitude towards copyright over the last couple of decades... but that's another story.

Google claims that it did no censorship at all, and that there was an automated block put on the site via its StopBadware service, which makes sense. Google has long used StopBadware to try to protect users from malware sites, and the service does sometimes make errors. While it seems unlikely that Google would purposely block the report, that doesn't make it any less strange for a Chinese government publication to accuse Google of censorship. Given the government's happy embrace of censorship, how does it have any sort of moral claim here?

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German Chancellor Against Google Book Project... Leaves Out That Germany Tried Funding A Competitor

from the just-saying... dept

German Chancellor Angela Merkel got plenty of attention over the weekend for speaking out against the Google Book settlement, making some odd claims that suggest she's not particularly familiar with what the debate is actually about:

"The German government has a clear position: copyrights have to be protected in the Internet," Merkel said, adding there are "considerable dangers" for copyright protection in the Internet.

"That's why we reject the scanning in of books without any copyright protection -- like Google is doing. The government places a lot of weight on this position on copyrights to protect writers in Germany."

But... what Google's doing is not about scanning books "without any copyright protection." That's a fabrication. Hell, even a German court ruled that Google's book scanning project doesn't violate copyright. You would think that Merkel would be familiar with rulings in her own country. Separately, it seems worth noting that at one point, Germany was heavily involved in Quearo, a European project that was originally designed to compete with Google's book scanning project. While Germany eventually dropped out of that program, it's difficult to claim that Merkel is an unbiased party in this matter, as her government at least initially supported a project to compete with Google in scanning books.

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Google Book Settlement Off For Now... May Be Renegotiated

from the reading-the-unscanned-tea-leaves dept

With so much opposition from pretty much everyone about the "settlement" between Google and authors/publishers' representatives, it looks like the parties are looking to renegotiate the deal. It wasn't too hard to read the tea leaves on this: there was so much vocal opposition -- including from the US gov't -- that it seemed unlikely that the settlement would ever get approved. My question, though, is what would a better settlement look like? I'm still of the opinion that no settlement should be needed, and that Google has a strong case that what's it's done is protected fair use. However, it appears that Google no longer wants to fight that battle, so we'll see some other settlement (probably involving Google coughing up more money and granting more restrictions), and we'll go through this whole argument again.

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The Real Problem With The Google Book Settlement Isn't The Settlement, But Copyright Law Itself

from the fix-that-and-there's-no-problem dept

In Congressional hearings on Thursday about the Google book settlement, most of the news reports focused on two particular things: (1) the fact that Marybeth Peters, head of the US Copyright Office, spoke out against the settlement, claiming that it violates copyright law and (2) Google's "concession" in letting other booksellers offer up the "orphan works" that Google would scan. Both are interesting, if not particularly surprising developments. Indeed, the controversy over the question of orphan works in the Google books settlement is a big one. But the real issue isn't the settlement, but copyright law itself. The whole problem of "orphan works" is solely a result of the continual and ridiculous level of copyright expansion over the years that has created these so-called "orphan works." It seems that the only person who actually seemed willing to discuss that was Rep. Zoe Lofgren, who actually used the occasion to call for a repeal to the 1998 Copyright Term Extension Act, noting that it was a large part of the problem. While that has almost no shot of actually happening, it's great to see at least one person in Congress recognizing that the problem was created by Congress (at the demand -- and funding -- of the entertainment industry).

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Complaints Against Google Book Scanning Project Reach Ridiculous Levels

from the did-you-really-just-say-that? dept

There's a tremendous amount of opposition to Google's "settlement" with authors and publishers over its book scanning project. I'm on the record as being very much against the settlement, but for very different reasons than most people. Frankly, I think Google's book scanning project is an incredibly useful and culturally valuable project, that will help expand culture and knowledge sharing. It's a way to not just preserve culture, but to share it. I can't see how that's a bad thing. In effect it's really no different than Google's search engine in how it works. It's basically building a giant index so that people can search on it, and be pointed to the results that they want. Think of it as the most effective and useful card catalog you could ever have. Did people think the library card catalog violated book copyrights? Of course not...

So my main complaint with the "settlement" is why it's needed at all. Google had a strong fair use case in how it was running the book scanning project, and I saw no reason to cave. In caving, it's only set up plenty of other copyright battles -- with music companies, the press, video companies and more -- all demanding their share of Google's profits, for no reason other than that Google has scanned their works and points more people to it. There are, certainly, other objectionable parts to the settlement, but my main objection is the idea that it's even needed at all.

However, many others are objecting to the settlement for a series of increasingly ridiculous reasons, that make little sense. Gary Reback, the famed anti-trust lawyer who helped bring the antitrust lawsuit against Microsoft a decade ago, is working with the Open Book Alliance -- a group that most certainly has admirable goals in terms of its own book scanning project, but which is clearly complaining about the "settlement" because it will give Google a leg up over its own efforts. Reback's filing over the matter makes the claim that that the agreement represents an antitrust issue:

"Google could never have achieved through free-market competition the dominant position in digital books it seeks through the proposed settlement," reads Reback's filing. "Unwilling to compete for share in the open market, Google chose instead to use court process to achieve dominance."

Really? As Danny Sullivan points out, despite Reback's claims, Google's dominant position in the digital book market was achieved via free market competition. To claim that it couldn't have been is simply wrong. It's then flat out misleading to suggest that Google "chose to use court process to achieve dominance" because it wasn't Google that used the process. Remember, it was the Authors Guild and various publishers who sued Google.

Next up, we have the Europeans, who are complaining about the Google book settlement as well. This is hardly a surprise. After all, it's been nearly five years since officials in France declared Google's book scanning project a threat to national French culture, and then got together with other European governments to dump billions of dollars into a ill-defined "competitor" that has produced little of consequence (and, indeed, seemed to have no direction). The competitor has been so useless that the French National Library -- whose boss first raised the alarm about the book scanning project five years ago -- has thrown in the towel and signed a deal with Google to allow the company to scan its books.

So, what's their complaint? Well, it's the same old complaint, that Google's book scanning project is somehow a threat to their culture:

European officials fear that if the Google project goes ahead in the US, a yawning transatlantic gap will open up in education and research.

James Boyle unleashes his wit in response:

"Oh my God! The Americans are about to create a private workaround of the enormous mess that we regulators have made of national copyright policy! They will fix the unholy legal screwups that leave most of 20th century culture books unavailable, yet still under copyright! They will gain access to their cultural heritage -- giving them a huge competitive advantage in education. This MUST BE STOPPED!! No one can be allowed to fix this for any other country because then we would be left alone stewing in our own intellectual property stupidity! We must forbid their progress in order to protect our ignorance."

Again, the settlement deal has tons of problems, and I still can't see how it's necessary or how it helps -- but many of the complaints about it are simply ridiculous.

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France Surrenders To Google?

from the headlines-that-write-themselves dept

You may recall that, nearly five years ago, folks in France sounded the alarm: Google's book scanning plan was a threat to French culture that needed to be dealt with. So, the government threw a lot of money at an ill-defined plan... and plenty of folks were quick to take the money, but not do much of consequence with it. Eventually, late last year, one small part of the project was revealed, and it looked decent. But, apparently that wasn't enough. France's national library (Bibliotheque Nationale de France (BNF)) has thrown in the towel and apparently signed up with Google to allow it to scan its collection. Of course, they could have done that five years ago and saved billions of taxpayer dollars... but what fun would that be?

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Increasing Concerns Raised Over Google's Book Search Settlement

from the a-bad-deal-for-everyone dept

When the settlement between Google and authors and publishers, over Google's book scanning project, was announced, many saw it as a big victory for everyone -- as it allowed Google to continue moving forward with plans to scan books, while also creating a "business model" for authors and publishers. However, some of us were very troubled by the implications of the settlement. It seemed clear to us that Google had a strong argument for why its actions were perfectly legal. Settling did a number of dangerous things. It failed to clear up the legal issue at all (effectively making it cost prohibitive for anyone else to work on a similar project). It set in permanent place a business model which seemed hugely bureaucratic and inefficient. That business model is basically set in stone and set by the terms of this agreement, rather than any real market mechanism. Finally, it signaled (loudly) to the world that Google was plenty willing to pay a few million dollars to settle with opponents, even when it had a strong legal position, knowing that it would make life more difficult for competitors.

It appears that as the details have come out, more and more people are troubled by what the settlement actually will mean in the long run. Robert Darnton, the head of the Harvard library system (which had already complained about the settlement) has written a thoughtful piece, detailing his worries about how this creates an effective monopoly, and the many, many downsides that this causes.

Prior to this settlement, we had been one of the bigger defenders of Google's book scanning program against those who worried that it was creating a de facto monopoly. That's because there were no exclusive agreements. However, with the new settlement, while again others could enter in theory, Google has effectively priced the rest of the market out. Prior to this, there was a reasonable argument to be made that anyone could scan books and create an index, so long as they weren't displaying too much of the books. Now... Google has set a market price of $115 million, plus a set-in-stone business model, as the entry price. It's pocket change to Google, but it's a big barrier to others.

This is definitely raising concerns from a variety of other sources, who were at least cautiously optimistic when the deal was announced. The EFF now points us to James Grimmelmann's worries about the deal (pdf). While Grimmelmann does support the deal and say it will be net positive for society, he then goes through a pretty detailed list of problems with the deal, almost all of which go back to the idea that this deal gives Google effective monopoly power over digitized books.

Finally, as for my initial fear that this would signal something of an "open season" on Google, with demanding money from Google for Google daring to provide the service of helping others find their works, we're already seeing some of that in the early stages. Some in the newspaper business are using the book settlement as a template for how Google should pay them too.

In the long run, I think Google is going to regret this deal. Yes, in the short term it handed Google a monopoly and removed a distracting lawsuit from the table. But, it did some very dangerous things that will harm Google in the long term. It signalled Google's willingness to pay up even when it shouldn't have to. It set in stone a business model way before anyone knows what the best business model is for online books. And, finally, in knocking all competitors out of the market, Google has taken away its own best incentive to continue innovating and serving customers at the best of their ability in the book search realm. The end result may be a worse product that isn't nearly as useful (and revenue generating for Google) as it would have been if it had real competition in the market.

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Will Others Now Line Up To Get Paid From Google?

from the bad-precedents dept

I know that many folks disagree with my view that Google's decision to settle with book authors and publishers was a huge long term strategic mistake, but it appears others are beginning to recognize the issues. Already, we've seen Harvard bail out on the deal, since it seems to work at cross purposes to Harvard's mission, but more importantly, others are realizing the implicit statement behind Google's caving: information is not free, and those who have information should line up to Google and demand to get paid. In fact, as found on Romenesko, some are wondering when newspaper and magazine execs will realize what the book scanning deal means, and start demanding the same sort of deal from Google. I would suggest it goes even further than that. If Google is setting up a pool to pay authors, and if that leads to them doing a similar thing for newspapers and magazines, why not other websites as well? Google has now set a precedent of being willing to pay in order to display works in its index, and that's going to backfire badly.

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Harvard Bails Out On Google Book Scanning Deal; Disagrees With Settlement Terms

from the and-here-come-the-problems dept

I'm on the record as being opposed to Google's decision to cave in to authors and publishers with its book scanning project. Many people I normally agree with have taken the other side, claiming that Google's agreement keeps the company out of court and creates a win-win solution. However, I still think, over the long term, this agreement is quite problematic -- and we're already seeing it at the margins. For example, Harvard has now dropped out of the scanning program, noting that it teamed up with Google because the program was going to make the library content freely and widely available. Yet, the settlement will impose charges and will greatly limit the usefulness of the library's collection. From Harvard's standpoint, this goes against what the library stands for.

I would argue that it goes directly against what Google used to stand for as well. Rather than making the world's information accessible and findable, this move is an attempt to lock up the world's information in Google's proprietary format, so that Google can charge people for it. It sets in place a forced business model that actually diminishes the potential usefulness and value of books, and sets a bad precedent for just about everyone else. It's still difficult to see any positives from this deal. It's good to see Harvard stand up for what's right, rather than giving in.

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Short Term Profits Over Long Term Principles; Google's Caving On Book Scanning Is Bad News

from the unfortunate-reality dept

Today the tech/business press was filled with stories about how Google has settled the lawsuits from authors and publishers over its book scanning project. Google is paying $125 million, and will be changing some of how its book search system works. Authors and publishers will allow books to go online, but it locks Google in to a specific business model that might not be the most reasonable and, most importantly, it does not answer the legal question concerning the overall legality of book scanning. Pretty much any way you look at it, Google caved here -- and this is unfortunate for a variety of reasons.

Two years ago, there was a story in the NY Times about how Google's legal department saw all of these lawsuits against the company as a way to stand up on principle and make better law. Specifically, the company positioned itself as being willing to fight certain lawsuits on principle in order to get precedent setting rulings on the books in support of openness, fair use, safe harbors and many other important issues. The company suggested that, rather than settle, it would fight these lawsuits knowing that it alone, with its big war chest of money, could fight some of these battles that tiny startups could never afford.

It may not be surprising, but it's safe to say those days are long gone. We've been seeing it time and time again, from Google's decision to pay off entertainment companies not to sue YouTube to the decision to pay off the Associated Press for including its headlines in Google News. Perhaps one of the biggest legal battles, however, was over Google's book scanning project. Google took it upon itself to scan numerous books and make the results searchable online. The company put significant restrictions in place, such that it's almost impossible for someone to do a search and read the entire book that way. You can only see a few consecutive pages. You can't print. However, you can search and find new and interesting books that you might want to buy. I know I've bought dozens of books this way.

Not surprisingly, authors and publishers sued Google over this, and went around claiming how awful it was -- even though it was really not all that different than creating a much better card catalog for books. The purpose was to help people find more books that were useful, rather than to break any sort of copyright. And, in fact, studies showed that books that showed up in Google's search improved sales. In other words, it should have been a win-win situation all around. But, like so many content providers, authors and publishers falsely overvalue the content and undervalue services that make that content more valuable.

However, more important that was the simple principle of the whole thing. Last year the New Yorker ran a fantastic article explaining how having authors and publishers quibble over copyright issues while preventing the widespread archiving and sharing of information may turn out to be one of the most ridiculous arguments ever, while our culture get locked up and fades away.

So, it's quite upsetting to see Google cave on this. The settlement does not establish any sort of precedent on the legality of creating such an index of books, and, if anything pushes things in the other direction, saying that authors and publishers now have the right to determine what innovations there can be when it comes to archiving and indexing works of content. Unfortunately, this was really inevitable. As was the case with Google caving on YouTube and the Associated Press, it becomes a situation where Google realizes it can throw a little cash at the problem to make it go away -- while also creating a large barrier to entry for any more innovative startup. From a short-term business perspective this might make sense, but from a long-term business perspective (and wider cultural perspective) it's terrible.

It will only encourage more lawsuits against Google for trying to innovate, as more and more people hope that Google will settle and throw some cash their way. Furthermore, it greatly diminishes the incentives for making books more useful, and that's damaging to our cultural heritage. While it was always silly to believe that Google ever really operated on a higher principled stance, rather than a short-term business focus, this settlement is tremendously disappointing.

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Microsoft Gets Out Of Book Search, But Hands Tools Over To Libraries

from the some-good,-some-bad dept

In a somewhat unexpected move, Microsoft has announced that it's abandoning its book scanning project. While Google's book scanning project has received a lot more attention (and lawsuits) for the way it's set up, Yahoo and Microsoft teamed up with the Internet Archive to try to do something similar, though focusing mostly on public domain works and other books where they have the publishers' permission. Microsoft doesn't give an entirely lucid explanation for giving up the project, but it is handing over the scanning systems it put together to its various library partners and hoping they'll continue scanning on their own, saying:

"Based on our experience, we foresee that the best way for a search engine to make book content available will be by crawling content repositories created by book publishers and libraries."

In some ways, this is a stunning quote coming from Microsoft, admitting that a publicly available repository, created by others an which anyone can index, is better than a proprietary and controlled solution. The company is probably correct that it's better to have the content be available to any search engine rather than stuck in a silo, but there's probably much more behind this reasoning -- such as the fact that Google's book scanning project seems to be gaining a lot more traction, perhaps because Google is doing deals with libraries to scan their books for free, while the Open Content Alliance (which Microsoft's project was a part of) charges money to libraries.

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Google Book Search Critics Ignore The Non-Exclusive Nature Of Scanning Contracts

from the no-monopolies-here dept

Three years ago, Google announced an ambitious effort to scan millions of book in order to create a search engine that would do for books what the original Google search engine did for the web. The debate quickly ran into criticism from publishers who claimed the program was an infringement of the publishers' copyright. Others pointed out that Google's activities were well within the bounds of fair use. The debate has continued on and off ever since. Ars Technica points us to the latest round of this debate. On one side is economist Paul Courant, who was the provost of the University of Michigan when the University became one of Google's first library partners and is now the University's librarian. In his newly created blog, he vigorously defends Michigan's participation in the Google project, pointing out that Google will have the entire seven-million-volume collection digitized within six years, for free, while the competing Open Content Alliance charges "thousands of dollars to digitize books at a rate of tens of thousands of volumes a year." The University of Virginia's Siva Vaidhyanathan responds with a number of criticisms of the deal. In addition to copyright concerns, he's got a number of concerns about what Google will do with the digitized books. He worries about whether Google's search results will be fair, whether Google will promptly correct scanning quality problems, and whether Google will do a good enough job of preserving the files over the long term, and so forth.

These are somewhat puzzling concerns to raise at all given that Google has historically been absolutely obsessive about improving the quality of its search results and archiving useful data. But it also ignores a more fundamental point: Michigan, and Google's other library projects, aren't granting Google exclusive access to anything. Under the terms of the Google-Michigan agreement, Google returns each book after scanning it, and Michigan is free to sign up with other scanning projects, including Google's competitors. It's true that Michigan has agreed not to share the Google-created digital files with others. But the important point here is that those files wouldn't exist at all if not for the agreement. It would hardly be reasonable to expect Google to spend tens of millions of dollars to create digital files that would immediately be available to Google's competitors.

In short, Google is anything but a monopoly. There are already competing book-scanning efforts under way, and if Google's project is a success we can expect more such efforts to be launched in the future. And because Google isn't a monopoly, it doesn't make sense for universities to treat it like one by trying to micromanage every aspect of the service it ultimately offers. In the unlikely event that Google Book Search turns out to be a lousy product, consumers will punish Google by switching to the competing offerings of Microsoft, Yahoo, or others. It's pointless to try to force Google to produce a high-quality product when its competitors already give it plenty of reasons to do so.

Vaidhyanathan also characterizes the Michigan scanning program as "massive corporate welfare," but this, again, doesn't make a lot of sense. The vast majority of the books Google is scanning spend most of their time sitting on shelves unread. In principle, Google is no different from any other library patron: it checks out books, reads them, and returns them. The only difference is that it's doing it on a much larger scale than a normal library patron would. But there's no evidence that Michigan has been playing favorites. If another company approaches Michigan seeking to scan its books on the same terms, and is turned down, then people would have strong grounds for criticism. But that doesn't appear to have happened. Google's just made the best offer so far. The "corporate welfare" label just doesn't fit.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Putting Google Library Into Historical Perspective

from the information-is-a-good-thing dept

Reader Jon writes in with a link to a fascinating New Yorker article that really puts Google's book scanning project into historical perspective. While there are all sorts of ongoing legal scuffles about the efforts to scan and make books and information more widely available, when viewed in the context of history, the legal arguments look even more ridiculous. The benefits to making content more widely available and more easily accessible are so big that it almost seems crazy not to do it. The article goes through all the struggles cultures have had over the ages just trying to classify and organize all sorts of books and information to make it usable -- and here we are with the tools and ability to go beyond everything that's been possible in the past... and we're stymied by a disagreement over copyright law? That just seems sad.

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