It looks like more and more "mainstream" companies are jumping on the copyright trolling/mass litigation bandwagon. The latest example is publishing giant John Wiley, suing 27 John Does for sharing various Dummies books via BitTorrent. Wiley insists that its book on Photoshop alone has been downloaded over 74,000 times. For what it's worth, Wiley's lawyers appear to have carefully tried to limit the IP addresses sued to just those in New York, where the case was filed. It's not clear if Wiley will follow the path of many other trolls to follow the lawsuit and subpoenas with shakedown threat letters. That would be unfortunate. Either way, this guarantees that I won't be buying any "Dummies" books going forward (and will try to avoid other Wiley books, if possible, as well). There's just no good reason to give support to companies who sue people like this, rather than learn to adapt.

We've discussed a lot lately how we've reached the point at which many authors have realized that self-publishing is a better deal than going with a big publisher. This is leading some to turn down huge advances from publishers to go it alone. And some are now asking if it makes any sense for authors to bother with publishing deals any more.

As with record labels, I've always thought that there are a variety of factors at play here, and for some authors, it can absolutely make sense to sign a publishing deal -- though I would be very careful to understand what's in the deal. For example, I've noted that for an author that isn't that well known, it's possible that doing a deal with a publisher can help with the marketing and getting the book in the right hands. Of course, some recent authors have pushed back on this, noting that publishers often expect authors to do much of their own marketing anyway... and that the marketing that they do contribute often is a total waste.

Indeed, it appears that some more authors are agreeing with that. Novelist Polly Courtney, who had successfully self-published a couple of books a few years back, leveraged that success into a three book contract with HarperCollins. However, now she's made the news because at the launch party for the third book... she announced that she's dropping HarperCollins and going back to self-publishing. Part of the problem? The "marketing" that HarperCollins provided. In her mind, they tried to pigeonhole her book in a category where it didn't belong.

"My writing has been shoehorned into a place that's not right for it," she said this morning. "It is commercial fiction, it is not literary, but the real issue I have is that it has been completely defined as women's fiction … Yes it is page turning, no it's not War and Peace. But it shouldn't be portrayed as chick lit."

[....]

"I'm not averse to the term chick lit," said Courtney, "but I don't think that's what my book is. The implication with chick lit is that it's about a girl wanting to meet the man of her dreams. [My books] are about social issues – this time about a woman in a lads' mag environment and the impact of media on society, and feminism."

Apparently, the issue of the covers has been going on for all three books, so she's dropping HarperCollins at the first opportunity -- and doing so in quite a public manner. The final straw was apparently the positioning on this final book.

The jacket, which displays the chick-lit staple of a pair of slender legs, misrepresents the novel, Courtney believes. "The titles and covers have been a problem with all three of my HarperCollins books, right from the start," she said. "If I had my time again I certainly wouldn't have signed with them. There's a feeling that any author should be grateful for any attention they can get from any publisher – that they should take what they can get. But I don't think they should have looked to sign me on the basis of what I'd written so far."

Her decision to publicly ditch her publisher was the result of "three years of pent–up frustration", she said. "People are looking at my books and saying 'you've turned chick lit'," she said. "The irony is that what's inside the books hasn't changed. To give Avon their due, in terms of the editorial process they didn't try to change what's inside into something different. It's the packaging. From the reader's perspective, they'll see it on the shelf and think this is chick lit, and it's not."

What this highlights is that some of the benefit of a big publisher might also be its biggest weakness. And that's scale. Book publishers can do scale well, but in order to handle scale, they try to run things through the same formula. You classify and then you follow the playbook. But that keeps you away from doing anything really creative, and creates problems when a book doesn't necessarily fall into a pre-defined area. I think if publishers are really going to serve authors usefully going forward, they're going to have to become a lot more flexible, and a lot less about marketing-by-the-numbers.

With the Authors Guild's recent move to sue a bunch of university libraries for daring to make certain works digitally available to students as "orphaned works," the latest move by the guild is to engage in a massive game of "gotcha." It started by going through the list of books that were proposed as orphaned works -- and finding one of the authors, followed by an effort that potentially found a few more.

There's no doubt that, as James Grimmelman pointed out, this makes the HathiTrust effort look bad. This was their first effort to show how an orphan works program might work, and the fact that their process was shown to be less-than-perfect (especially their "first" showcase effort) is definitely going to set back any orphan works project in the future -- because any time such an effort is brought up, people will point to this example.

Of course, others might reasonably argue that the system worked. After all, none of these books had been released digitally yet. The process involved the HathiTrust first trying to track down the authors, then the authors/works being put in a public list, which could be scrutinized by the public to see if any of them could show that the works weren't orphans. And that's exactly what happened. Even if you could have hoped that the original investigation was a bit better, it's hard to argue that the system didn't work here. It did.

Either way, the University of Michigan did exactly what it had to do from a PR standpoint, and suspended the program until it can refine the process to make it more effective in only releasing truly orphaned works.

However, the bigger issue to me is just how gleeful the Authors Guild seems to be that it's sticking it to universities and their libraries. The Authors Guild should be supporting the efforts of these libraries to legitimately make otherwise unavailable works available again. The Authors Guild should be partnering with these libraries to make sure the works truly are orphaned. Instead, they're jumping up and down and gloating over the fact that such works won't be accessible any more. It's really quite disgusting.

I think the best response to all of this came from Duke's Scholarly Communications Officer, Kevin Smith, who wrote an open letter to J.R. Salamanca, who was the first name on the list who was "found" by the Authors Guild, asking him to recognize that the libraries are not his enemy, as the Authors Guild is trying to claim:

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies.  We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity.  So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work.  Amazon.com shows only two used copies available for sale.  In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage.  It has not left the facility once since then, and our system shows no circulations in the prior decade, either.   One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard.  They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition.  The Authors Guild simply does not have the ability to create a new market for your book.  Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust.  Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books.  Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

It seems unlikely that the Authors Guild will understand this. But watching Scott Turow (whose books I was a fan of until all this began) and the other top brass at the Authors Guild act this way, it's hard not to be flat-out disgusted by the way the group is so gleeful about locking up knowledge.

It appears that Scott Turow is really trying to cement in place the reputation of the Authors Guild as a luddite, anti-education, anti-learning organization. What a shame. A decade ago, the Authors Guild stunningly told its authors not to link to Amazon, because Amazon dared to also show used books alongside new ones. It also freaked out when Amazon allowed people to search full text of books. Over the intervening decade, the Authors Guild has consistently come out against progress, such as when it freaked out about the text-to-speech feature on the Kindle, bizarrely claiming that this feature was infringing (it's not).

For many years, the Authors Guild has been involved in a legal dispute with Google over the Google Books scanning project. And while the two sides came to a highly questionable settlement that was thankfully rejected by the court, it appears that the Authors Guild is doubling down on a new lawsuit -- this time suing five universities for daring to try to provide access to digital scans of orphan works -- those works for which no copyright holder can be identified.

You may have heard a few months ago that the University of Michigan's libraries, sick of waiting for Congress to get its act in order and deal with the orphan works problem, said it was just going to start making such works available. Last month, some other universities joined the University of Michigan to create a consortium of universities who decided to provide access to scanned orphan works. These libraries had to know they were daring the Authors Guild to sue, and now it's happened.

The University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University, along with the overall consortium group, called the HathiTrust, has been sued. Oddly, there are a few other universities who stated they were going to take part in this effort -- including the University of Florida, Duke, Emory and Johns Hopkins. I'm not sure how they avoided being lumped in to the lawsuit.

This is related to the Google book scanning project, because these university libraries shared their collections with Google to scan, and it's just that now they've decided that they're going to make orphan works available. The universities are claiming that fair use lets them share these works. The Authors Guild, obviously, disagrees. On top of that, the universities and the HathiTrust makes it pretty clear that they're bending over backwards to make sure that these works truly are orphan works where copyright holders cannot be found:

The story starts with Google’s scanning agreements with the libraries: each time Google scans a book, it returns both the physical book and a digital copy to the library that gave it the book. The libraries then gave their scans to the HathiTrust, which functions like a digital version of a shared off-site storage warehouse. HathiTrust makes multiple copies of each file, storing versions on hard drives and tape backups at both Michigan and Indiana. It offers the public bibliographic information about the books, and provides a full-text search engine. Unlike Google Books, however, which shows “snippets” from the books as search results, HathiTrust will only tell users the page numbers where the search terms occur. If a book is in the public domain, HathiTrust turns on full view, letting users read it online. (If you’re affiliated with one the member institutions, you can also download the book as a PDF.)

This spring, HathiTrust announced the “Orphan Works Project,” which aimed to investigate the rights status of the books still in copyright. It would investigate the author and publisher information available about the book; if they could not be located and the book was unavailable, it would be flagged as a possible orphan and put on a list of candidates. If at any time a copyright owner is identified and located (e.g. because they step forward), the book is removed from the list.

In other words, the only way a book gets displayed through this system is if no copyright holder is found after a fairly extensive process. And if the copyright holder ever shows up, the work is immediately removed. All of this makes me wonder if the Authors Guild can really prove it has standing in this case. If the actual copyright holders cannot be identified, how can the Authors Guild claim standing over these works?

Either way, this is yet another in this long line of disputes in which the Authors Guild is coming out on the wrong side. It's not helping authors, it's doing the exact opposite, by acting like a massive luddite, attacking any form of innovation or any system that encourages the reading of books and the sharing of knowledge. Shame on the Authors Guild, who seems to only be living up to the reputation of guilds from the Middle Ages, which were focused on economically-suicidal protectionism, rather than innovation.

Last year, we wrote about the Supreme Court's deadlocked tie over whether or not the "first sale doctrine" applies to goods made outside the US in the Omega v. Costco case (Justice Kagan recused herself due to her involvement in the case while she was Solicitor General). Because of that the ruling from the 9th Circuit effectively remains the law. The basic issue is that the US has long had a "first sale" doctrine when it comes to works covered by copyright. The basic idea is that if you buy a book, you can resell it. This is important, because without the first sale doctrine, any time you wanted to resell a product that had any parts covered by copyright, you'd have to go back and involve the copyright holder. That would, of course, strangle commerce in many areas. Imagine having to get permission (and probably pay a cut) every time you wanted to sell a book you had.

While the Omega case involved some additional sneakiness involving Omega figuring out a way to "copyright" a watch (don't ask), we noted at the time that this ruling could have horrifying consequences, such as making anyone who resells a book made outside the US liable for huge damages awards under copyright law.

And, now we have our first case testing that exact theory... and, indeed, the court has ruled that selling a book made outside of the US is copyright infringement and there's no first sale defense. In this case, the bookseller was found guilty of willful infringement, because he was selling textbooks legally bought in Asia in the US, and told to pay $75,000 per infringement (in this case, eight books: $600,000), though it could have been as high as $150,000.

Applying these principles to the facts of this case, we conclude that the District Court correctly decided that Kirtsaeng could not avail himself of the first sale doctrine codified by § 109(a) since all the books in question were manufactured outside of the United States. In sum, we hold that the phrase “lawfully made under this Title” in § 109(a) refers specifically and exclusively to works that are made in territories in which the Copyright Act is law, and not to foreign-manufactured works.

The court basically says, hey, that's the law, pointing to the specifics in the statute, as well as the Omega ruling and a previous Supreme Court ruling. And, technically, the court may be right, as the law is drafted in an awkward way (the court says "ambiguous," but it's really just awkward), such that you can (but don't have to) read it to apply only to works first made in the US. But it's hard to see how this is not an insane result that should be fixed by Congress as quickly as possible. In an age when books (and other products) travel over borders all the time, the fact that you could risk $75,000 punishment for selling what you legally bought... is out and out crazy.

Thankfully, at least one judge on the panel felt similarly. Judge Garvan Murtha dissented from the ruling, saying that first sale should apply to works made outside the US. Murtha's argument is that the judges (and other courts perhaps) are misreading the section of Copyright Law that everyone relies on here, the part that says that First Sale applies to works "lawfully made under this title." The argument that has prevailed so far is that a work made outside of the US doesn't get US copyright protection, and thus isn't "lawfully made under this title." Murtha claims that this is a misreading, and since a US copyright holder authorized the production of this work, it was legally made under US copyright law:

The statutory text does not refer to a place of manufacture: It focuses on whether a particular copy was manufactured lawfully under title 17 of the United States Code. 17 U.S.C. § 109(a). The United States law of copyrights is contained in title 17. Accordingly, the lawfulness of the manufacture of a particular copy should be judged by U.S. copyright law. A U.S. copyright owner may make her own copies or authorize another to do so. 17 U.S.C. § 106(1). Thus, regardless of place of manufacture, a copy authorized by the U.S. rightsholder is lawful under U.S. copyright law. Here, Wiley, the U.S. copyright holder, authorized its subsidiary to manufacture the copies abroad, which were purchased and then imported into the United States.

Murtha goes all the way back to the original Supreme Court ruling on the First Sale Doctrine, in pointing out that the court first allowed the First Sale Doctrine so as not to restrict trade -- which this new ruling clearly does. Furthermore, Murtha notes the ridiculous results here, in which works made outside the US now have more strict copyright controls inside the US, and that the incentive now is for publishers to make all their books elsewhere:

Economic justifications also support applicability of the first sale doctrine to foreign made copies. Granting a copyright holder unlimited power to control all commercial activities involving copies of her work would create high transaction costs and lead to uncertainty in the secondary market. An owner first would have to determine the origin of the copy -- either domestic or foreign -- before she could sell it. If it were foreign made and the first sale doctrine does not apply to such copies, she would need to receive permission from the copyright holder. Such a result would provide greater copyright protection to copies manufactured abroad than those manufactured domestically: Once a domestic copy has been sold, no matter where the sale occurred, the copyright holder’s right to control its distribution is exhausted. I do not believe Congress intended to provide an incentive for U.S. copyright holders to manufacture copies of their work abroad.

Either way this is a mess, and makes it ridiculously dangerous to sell products under the First Sale Doctrine in the US unless you're absolutely sure where the product was first made, and if it's been authorized for sale in the US. It's going to hit hard against libraries especially, who often get books whose provenance isn't entirely known. One would hope that Congress would fix the ridiculously awkward language in the Copyright Act and make it clear that First Sale applies across the board, but since when has Congress ever done anything right with copyright law?

For all the stories of doom and gloom in various entertainment industry segments due to "piracy," the deeper you look, the more you realize that each of these areas seems to be growing quite nicely, contrary to what's being claimed. Remember last week, when we showed the US Chamber of Commerce's propaganda video in favor of the PROTECT IP Act, in which various artists claimed that their industries were being "hurt" by internet piracy? It included clips of the author Tracy Deebs (who also goes by the name Tracy Wolff), claiming that "piracy" had hurt the publishing industry badly and suggesting that she might lose her deal because book publishers don't believe she can sell enough books.

Well, tragically for Deebs/Wolff, the actual data suggests she and the US Chamber of Commerce are totally full of it. FormerAC points us to some new reports showing that the publishing industry is growing thanks to the rise of digital:

BookStats, a comprehensive survey conducted by two major trade groups that was released early Tuesday, revealed that in 2010 publishers generated net revenue of $27.9 billion, a 5.6 percent increase over 2008. Publishers sold 2.57 billion books in all formats in 2010, a 4.1 percent increase since 2008.

Deebs, who it should be noted, writes young adult fiction, and who markets her own young adult fiction book as "a paranormal romance," might be most interested in this particular line:

Juvenile books, which include the current young-adult craze for paranormal and dystopian fiction, grew 6.6 percent over three years.

Deebs uses the name Tracy Wolff when publishing "adult fiction." And thus, I'm sure she's also interested in the following line:

One of the strongest growth areas was adult fiction, which had a revenue increase of 8.8 percent over three years.

So, once again, we have to ask both Deebs and the US Chamber of Commerce who is exploiting her apparently false claims, exactly how was she a "victim"? It certainly looks like the market is thriving. If Deebs isn't capitalizing on that, it's probably because either her book is no good or she's not doing a very good job selling it. Perhaps the Chamber of Commerce can help her with that, rather than having her appear in ridiculous videos in support of a bad law that promotes internet censorship.

J.A. Konrath -- whose success as a self-published e-book author has been featured on Techdirt before -- recently kicked out a post concerning the Mystery Writers of America's submission policy as proof that the more things change, the more the "old guard" increases its efforts to pretend that things are still the same.

Konrath doesn't speak too highly of the MWA, which seemed to be a rather lackluster writers' association, even back in its heyday:

The only time the MWA got in touch with me was when they needed something--I lost count of the times I was called upon to volunteer for some task or another--or when they wanted me to pay my dues. The dues notices (both email and in person) became so frequent, not only for me but for many of my peers, that it is now a long-running joke in the mystery community. (A friend of mine was even approached during his signing slot at Bouchercon to pay dues, in front of several fans.)

The MWA, an organization that was supposed to exist to help writers, seemed to exist only to sustain itself.

After a few years of this, Konrath dropped his MWA membership and joined up with the International Thriller Writers group, which shockingly ("shockingly" added for the benefit of legacy artist representation groups) doesn't need membership dues to survive. Konrath states that the ITW runs such a smart organization they actually turn a profit.

Depsite his negative experience with MWA, he was intrigued enough by its recent press release announcing changes to its submission policy to take a look. Unfortunately, nothing had changed and the MWA is still running in full "legacy mode:"

Self-published books, whether they are published in print or as e-books, still do not qualify for MWA active membership.

At this point, another leftover from a legacy industry looks the future straight in the eye and says, "Not interested." And as far as Konrath's concerned, the MWA couldn't be more wrong:

[A]ccording to these rules, someone like John Locke, who has sold close to 1 million ebooks, isn't eligible for MWA membership.

How many MWA members have sold 1 million books?

I've sold close to 300,000 self-pubbed ebooks. But apparently that doesn't equate with "professional standards" according to the MWA.

Professional standards apparently mean "You're only worthy if you're vetted by the industry."

This shouldn't bug me. I gave up on the MWA years ago... So if it shouldn't bug me, why does it?

Because I see this same casual dismissal of the future of our industry from the Big 6. They don't see the threat self-pubbing has become, and they're going to go extinct because of their denial.

Seeing a similar attitude coming from writers--folks who should know better because they've worked hard and struggled and gotten screwed over and over again--makes me shake my head in absolute amazement.

There are a lot of self-pubbed authors earning more money than a lot of MWA members. Certainly the MWA could use this new blood to teach longstanding members how to thrive in this brave, new world. And they NEED this information. MWA members have backlists and trunk novels and are getting repeatedly shafted by the Big 6.

How much could John Locke teach them about ebooks and marketing? How about 200 John Lockes, attending banquets, speaking at conventions?

If the publishing world, as it exists now, has no interest in the talents and insights of thousands of hard-working writers, it's their loss. This kind of elitist attitude is commonplace with the gatekeepers of industries whose reactions to the destruction wreaked by a digitally-leveled playing field has been a whole lot of "too little" and nearly universally "too late."

The current MWA guidelines are elitist--they only accept those who are chosen by a few dozen gatekeepers in the establishment.

The majority of writers I know got offers from a single house, rather than competing offers from multiple houses. Eliminate that one house, and they would still be unpublished. That's luck. If the publishing gatekeepers really knew quality, a truly worthy book would get bids from every major house. That never happens. In fact, many houses pass on books that go on to make millions and win awards.

The gatekeeping system has long been broken, and it's a very poor determiner of quality. The fact that I'm on track to sell more of my rejected novels than I have of my legacy pubbed novels is more proof they have no idea what people want.

It's not hard to find details of massively successful authors who also had trouble getting published initially. The self-proclaimed arbiters of what is or isn't "real writing" can't even agree on what's worth publishing and yet they still feel they can set the rules and choose which formats are "worthy" of support. That's sad and ugly and more than a little pompous.

But there is good news: the MWA is still reaching out in its own way to aspiring (i.e., "non-traditionally-published") writers:

MWA also mentions in its mission statement that they accept: "aspiring crime writers, and those who are devoted to the genre." Which means newbies and fans. That's fine, but these people can only get an associate membership. Which means they pay, but aren't allowed to do many of the things that regular members do.

Can you say taxation without representation?

So, there you have it: if you're self-published, MWA is more than happy to take your money, but is completely unwilling to treat you as a qualified writer. That is, unless you decide to take their chosen route to being a writer, the one that runs directly through one of several publishing houses that are already nearing irrelevance or hanging on the ropes. How pathetic.

As I'm still a relatively new parent, way too many people have forwarded me copies or links to the PDF of the suddenly viral "children's" book Go the F**k to Sleep in the last few weeks. If you haven't seen it yet (and you're a parent), it's worth checking out, as it'll probably give you a chuckle for putting into words what you've thought many times, delightfully packaged in a near-perfect replica of so many children's books. Honestly, upon seeing it, I went searching to see where I could buy a physical copy (which, don't worry, I'll keep far away from the actual stack of baby books), and was disappointed to see that it wasn't coming out until the fall. Except... the viral nature of the whole thing has turned a silly faux-children's book, with absolutely no marketing behind it, and which hasn't been released yet, into a bestseller: Because of all of this attention, the publisher, Akashic, has moved up the publication date to June, and has planned a much bigger print run. It also resulted in the movie rights (yes, the movie rights) already being sold. And it's all because of what could technically be called piracy.

And here's the really ridiculous part. Despite all of this, Akashic appears to believe that it's still in its best interests to go after those hosting copies of the PDF or graphics, and have them take it down.

And Akashic [has] been doing what they can to control distribution of the document by asking people to take down any posted PDFs. This may not be much. "As the publisher of this book, our responsibility is to tackle instances of piracy when we become aware of them," Ahmad said, "That's just doing a service to our authors, ourselves, book sellers, distributors, to everyone involved in the successful making and promotion of a book."

But, um, how is that "a service" to the author or the publisher? There appears to be a ton of evidence that the very lack of their ability to stop that is a huge part of the reason why the book is a massive success story. It seems like yet another case where people focus on the "but we must stop piracy!" without considering what that means for the bottom line.

Plenty of authors (and musicians and filmmakers) have already made this leap into recognizing that just because it's available for free, doesn't mean you can't make a ton of money with it. It just seems weird that Akashic seems to recognize the value it got from all this "piracy" on one hand, while at the very same time, talking about how it needs to stop it "as a service" to itself and its authors.

Copycense, who has done a really bangup job in pointing out some ironic ebook pricing decisions, has another one. The book "Economics in One Lesson," by Henry Hazilitt is available new from Amazon in paperback for $7.95... or at $9.99 for the Kindle. Apparently, "Economics In One Lesson" either doesn't include a section on pricing... or whoever did the pricing on the book didn't read that section...

Now that a judge has rejected the "settlement" between Google and the Authors Guild, many people are asking what will happen next. There may be appeals or alternative settlements proposed, but given my previous statements on the settlement, it'll probably come as little surprise to people that I agree with Tim Lee that Google should go back to standing up for fair use. It should take this fight on and show that its scanning of such books is fair use, and not infringement at all. It should show that it doesn't need any kind of settlement, because it's not violating copyright law. And, as we've discussed, it now has more caselaw on its side. Since the original settlement came about, Turnitin's database of the works of others was found to be legal, which many people are realizing helps Google's case quite a bit.

I think the failure of the settlement may strengthen Google's fair use argument. Fair use exists as a kind of safety valve for the copyright system, to ensure that it does not damage free speech, innovation, and other values. Although formally speaking judges are supposed to run through the famous four factor test to determine what counts as a fair use, in practice an important factor is whether the judge perceives the defendant as having acted in good faith. Google has now spent three years looking for a way to build its Book Search project using something other than fair use, and come up empty. This underscores the stakes of the fair use fight: if Judge Chin ruled against Google's fair use argument, it would mean that it was effectively impossible to build a book search engine as comprehensive as the one Google has built. That outcome doesn't seem consistent with the constitution's command that copyright promote the progress of science and the useful arts.