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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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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Europe Pushing For An Orphan Works Law Also

from the will-it-get-done? dept

Many in the US have been pushing for an "orphan works" law for quite some time -- which would create an exception for copyright infringement if the owner of a work simply can't be found. It's difficult to find any serious reason why an orphan works exception shouldn't be included in copyright law as written, but there are always some who pop up as being against it -- usually because they don't understand what it is (there are some who seem to be purposely spreading misinformation about orphan works bills). Thus, it continually fails to move forward in the US -- even as politicians insist it's necessary. It looks like Europe may be going down the same route these days, as it's now looking at creating an orphan works law as well. Now we'll see if it faces the same misguided opposition.

Still, as William Patry notes in his book, the real shame is that the whole reason we need an orphan works bill in the first place is due to how screwed up copyright law has become since switching from a "formalities" approach to one where everything is automatically covered by copyright. Under the old system (pre-1976 Act in the US), in order to get a copyright, you had to register, and then at certain points, re-register it, to have and keep it covered by copyright. Thus, any such "orphan" works fell into the public domain after a short period of time -- and it worked fine. There was no "orphan works" problem, because those works that no longer that weren't being used for commercial purposes went into the public domain in a relatively short period of time. The most amazing thing, though, is that very few of those supporting orphan works legislation seem to recognize that the whole "problem" is one they made themselves by extending insanely long copyrights to pretty much everything.

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House Lets Orphan Works Legislation Die; Tons Of Content Remains Locked Up

from the the-death-of-culture dept

We've discussed in the past the importance of orphan works legislation, which would make it possible for people to use content on which the copyright holder cannot be found. The amount of "orphan" content out there, that simply cannot be used, is staggering. An orphan works bill makes a tremendous amount of sense. Unfortunately, some content creators whipped up supporters into a frenzy, at times by lying about what the bill actually included, leading to a push to block the legislation. Those folks should be happy: while the Senate did pass the legislation, the House is letting it die, at least until after the election this November. There is no rational argument that I can see for not allowing this legislation to pass. The argument that this allows companies to "steal" the works of various artists is clearly untrue. The legislation requires a full search for the creator, and if the creator later turns up, they can get paid. This is necessary legislation to actually put tons of locked up content back to good use, and it's a shame that it was killed by the misleading complaints from folks who prefer to limit our cultural heritage by lying about what the bill would do.

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History Locked Up... Thanks To Copyright

from the too-bad dept

And here's yet another story of important content that could be put to use, unfortunately being totally locked up thanks to copyright. A few readers sent in the story of the Brooklyn Historical Society refusing to let someone putting together a book of photographs of the Canarsie section of Brooklyn use some old, historically relevant, photographs, because of fears over copyright. The photos in question were from well over 100 years ago, and no one has any idea who owns the copyright -- but rather than risk getting sued for infringement, the Historical Society has said no to using the photos in the book. This is the sort of situation that could be solved with orphan works legislation, but there's a vocal contingent of photographers who loudly are attempting to block that legislation, often falsely stating what the orphan works bill would actually allow, claiming that companies will "steal" their photos. So, instead, we sit around, unable to see important historic photos. I'm sure that's what the framers of the Constitution had in mind.

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Orphan Works Legislation Would Be A Small But Important Step Toward Copyright Reform

from the baby-steps dept

We've long promoted the common-sense idea of orphan works legislation. Orphan works are works still under copyright whose present owners are unknown. This is a serious problem because there's no way to license orphan works and a big risk of a subsequent infringement lawsuit if they're used without a license. My co-blogger Jerry Brito has a post examining a pair of bills (one in the House, one in the Senate) that would address the problem. Under the proposal if someone is unable to find the owner of a copyrighted work after a diligent search, then the work could be used without the fear of a crippling lawsuit later. If a copyright holder comes along later, he won't be able to obtain draconian punitive damages. Rather, the court would estimate how much a reasonable licensing royalty would have cost and assign that amount to the copyright holder. One of the best things about this proposal is that it would give an incentive to copyright holders to start placing copyright notices on their works, something that was mandatory until the 1970s. If more copyright holders marked their works, that would dramatically reduce the orphan works problem going forward, because it would be easier for people to find copyright holders and negotiate licenses.

Of course, it should be said that "statutory damages" for copyright infringement -- which can be as high as $150,000 per work infringed -- are way too high across the board. It will be great if we can reduce that burden for the users of orphan works, but I'd like to see punitive damages lowered across the board so we don't see any more travesties of justice like the 2000 MP3.com case. In that case, the damages were so excessive that MP3.com couldn't even afford to appeal. Orphan works legislation is a good first step toward reforming the copyright system, but there's a lot more that needs to be done.

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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