Google 'Requests' That We Not Copy Works That Are Already In The Public Domain

from the yeah-right dept

Computer scientist Steven Bellovin notes a troubling trend: companies that republish public domain works are increasingly trying to use contract law to place restrictions on their use. For example, Google is apparently in the habit of "requesting" that people only use the out-of-copyright works they've scanned for "personal, non-commercial purposes." Even more troubling, works like this one that were produced by the US federal government—and have therefore never been subject to copyright—come with copyright-like notices stating that any use other than "individual research" requires a license. Fundamentally, this is problematic because copyright law is supposed to be a bargain between authors and the general public: we give authors a limited, temporary monopoly over their works, in exchange for those works being created. But in this case, the restrictions are being imposed by parties—Google and Congressional Research Services, Inc., respectively—who had nothing to do with the creation of the works. The latter case is particularly outrageous because taxpayers already paid for the works once, through our tax dollars.

With that said, there are a couple of reasons to think that things aren't as bad as Bellovin suggests. It's hardly unusual for companies to claim rights they don't have in creative works—that doesn't mean those claims will stand up in court. The fact that Google "requests" that users limit how works are used doesn't mean they can stop people who ignore their requests. And especially in the case of government works, there's a strong case to be made that copyright law's explicit exemption of government works from legal restrictions should trump any rights that private companies might claim to limit the dissemination of such works. Moreover, a few courts have recognized the concept of copyright misuse, the attempt to extend a copyright holder's rights beyond those that are specified in the law. So it's not at all clear that these purported contractual restrictions would actually be binding. Companies might say that you need permission to reproduce the works, but they're unlikely to try to enforce those requirements in court. Nevertheless, government officials and librarians should do a better job of policing these kinds of spurious claims. As Bellovin says, government agencies that hire firms to manage collections of public domain works should ensure that the private firms are contractually obligated not to place additional restrictions on downstream uses of those works.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    RD, Mar 17th, 2009 @ 8:30am

    well

    So much for "do no evil."

     

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  2.  
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    :Lobo Santo, Mar 17th, 2009 @ 8:35am

    Re: well

    Evil...

    A nanny state isn't evil... it's just an insidious detriment to one's freedom and liberty.


    I keep crossing my fingers and hoping Google will get back to what it used to be...

     

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  3.  
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    interval, Mar 17th, 2009 @ 8:41am

    Re: Re: well

    @:Lobo Santo: "I keep crossing my fingers and hoping Google will get back to what it used to be..."

    Well, good luck with that...

     

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  4.  
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    harknell, Mar 17th, 2009 @ 8:46am

    What is being "copyrighted"

    I wonder, Are they attempting to dissuade people from using *their scan* of the document? How does this exactly work--If I have a document that's public domain, but I scan it (I'm not talking take the words through OCR, but literally take a photo of the document)....does this make a *new* item? Is the scan (which in many ways is like a photo) a new work in any sense of the term? So is there a right to having people not use *your* scan of the document? As opposed to using the underlying words of the document? So if Google did the work to scan things are they really trying to say "go ahead and scan the doc yourself, but our version of the scan we want to restrict. So the emphasis is now possibly off the work but on the transformation of the work into a particular file?

     

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  5.  
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    Geoffrey Kidd (profile), Mar 17th, 2009 @ 9:03am

    "Won't stand up in court."

    But... it may not matter whether the claims will stand up in court. It's still expen$ive to go to court in the first place, and while we enjoy David vs. Goliath stories, remember that God is usually on Goliath's side.

     

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  6.  
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    Kevin Donovan, Mar 17th, 2009 @ 9:05am

    First Sale Case

    What was the EFF victory against the contracts limiting the first sale doctrine? That should give some firm footing to any malfeasance by public domain limiters.

     

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  7.  
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    RD, Mar 17th, 2009 @ 9:05am

    copy of a copy

    I think (and I'm not 100% certain here) that you cant use their SCAN of it, directly. SO, you could type out, or otherwise do your own "copy" of the text (which is in the PD) but you can use THEIR (google's) copy of that PD work. The content is PD, the actual manifestation of it is google's. So, sort-of yes in answer to your question of "If I have a document that's public domain, but I scan it (I'm not talking take the words through OCR, but literally take a photo of the document)....does this make a *new* item?"

    In the sense that, whoever takes the original text and makes it into some form (book, web page, etc) then that resulting "creation" is copyright. But you cant sue someone for using the underlying text, as that is PD. You can only go after someone for using YOUR explicit expression of that text.

     

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  8.  
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    Bear Field, Mar 17th, 2009 @ 10:03am

    Congressional Research Services, Inc.

    Unfortunately for your argument, the restriction in the CRS, Inc., case is not on the uncopyrighted government document, but on the compilation of bibliographic data produced by Congressional Research Services, Inc. The compilation of bibliographic data does count as an "original work"; Congressional Research Services, Inc, is a corporation and hence NOT a government agency; thus the compilation is protected by copyright.

     

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  9.  
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    Anonymous12, Mar 17th, 2009 @ 10:33am

    @Bear Field who said : "Congressional Research Services, Inc, is a corporation and hence NOT a government agency; thus the compilation is protected by copyright"

    According to Wikipedia (source:http://en.wikipedia.org/wiki/Congressional_Research_Service)


    The Congressional Research Service (CRS) is the public policy research arm of the United States Congress. As a legislative branch agency within the Library of Congress, CRS works exclusively and directly for Members of Congress, their Committees and staff on a confidential, nonpartisan basis. CRS reports are highly regarded as in-depth, accurate, objective, and timely, but as a matter of policy they are not made directly available to members of the public...

    AND:

    Congress created CRS in order to have its own source of nonpartisan, objective analysis and research on all legislative issues. Indeed, the sole mission of CRS is to serve the United States Congress....

    In my opinion, based on this public text, good luck having your argument stand up in Court that CRS has the same protections as a corporation, technicalities aside.

     

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  10.  
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    ChurchHatesTucker (profile), Mar 17th, 2009 @ 10:38am

    It's all good...

    ...because the threat of jail time for CEOs who sign off on false copyright claims will surely be a sufficient deterrent. I mean, if a guy can upload an album and face six months in the slammer, what kind of insane liability would *these* guys face? Logically, something quite massive.

     

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  11.  
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    Michial, Mar 17th, 2009 @ 11:04am

    Google has every right to limit how their service is used

    Actually Google has every right to limit how their services are used. Even for "public domain" content.

    They are not putting limits on how you use the content, but on how you use their bandwidth. If they want their bandwidth limited to personal use they have every right to make that request, and expect it to be honored.

     

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  12.  
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    Anonymous12, Mar 17th, 2009 @ 11:24am

    @Michial: That may be the case (you sound really anal retentive IMHO, FYI) but they probably should put that in writing, if that's the case. Thank you for arguing for a corporations restrictive limitations on data use however. You must be a blast at parties, and a winner with the ladies.

     

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  13.  
    identicon
    Anonymous Coward, Mar 17th, 2009 @ 12:02pm

    Re: Google has every right to limit how their service is used

    If they want their bandwidth limited to personal use they have every right to make that request, and expect it to be honored.

    How do they have the right to expect that request to be honored? Since we are a nation of laws, you need to cite the law for that. Your say-so just doesn't cut it.

     

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  14.  
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    Dan Zee (profile), Mar 17th, 2009 @ 12:46pm

    Bill Gates does it

    Bill Gates has been doing a similar thing with Corbis. He's been buying up the copyrights of pictures taken of great works of art that are in the public domain. Any photo taken after 1923 has a copyright on it, even if the art in the picture of is in the public domain.

    So if you need a picture of the Mona Lisa, for example, for a book or some other purpose, Corbis owns the right to a photo of that artwork. The Louvre won't let you in to take a professional picture of it. The best you might be able to do is take a snapshot through the bulletproof glass and the dim lighting. If you need a professional photo of it, the only way is to pay Corbis a fee to use their picture, despite the fact that the Mona Lisa is in the public domain. Corbis makes money on a work in the public domain, and keeps you from accessing it directly.

    Google seems to be leaning in that direction: we scanned it, we own the rights to that scan. It may be in the public domain, and we'll let you look at it, but it's our scan and you can't use it for any other purpose than looking at it.


    It also falls within the category of intellectual property rights. Google has a database of public domain material, but it did the work of collecting it, and if you copy it without permission, you're violating Google's intellectual property. If you want your own database, you have to go out and scan the books yourself.

     

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  15.  
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    avitarx, Mar 17th, 2009 @ 3:32pm

    google

    Isn't what google is doing exactly the type of thing IP is supposed to promote?

    They are making a large investment. Clearly what they are doing is benificial, and costly. Additionally, it loses value to them if someone can grab it from them and do the same thing easily. And what they are doing is new (digitizing the analog).

    I don't mean to weigh in on the reasonableness of our laws, but I do think google's massive digitization at a rapid pace is evidence of the klaws working as intended, and not against it.

     

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  16.  
    identicon
    bowerbird, Mar 17th, 2009 @ 3:43pm

    > Is the scan (which in many ways is like a photo)
    > a new work in any sense of the term?
    > So is there a right to having people
    > not use *your* scan of the document?

    a straightforward scan of a public-domain page
    is itself in the public-domain. use it _freely_...

    that's why google "asks" you to use their scans only
    for personal, non-commercial purposes. if google
    _could_ use the law to _forbid_ you, they _would_...

    you should ignore their "request". just ignore it...
    the public-domain belongs to _you_, the _public_.

    but their request in this case doesn't make them evil.
    they'd just like to protect the investment they made
    in scanning public-domain books. that's reasonable.
    but it doesn't mean you need to _grant_ their request.

    however, more recent actions by google _are_ evil...
    (i don't use that word lightly; google brought it up.)

    specifically, google's "settlement" in the recent suit
    against them by authors/publishers has turned evil.

    this "settlement" gives google control over "orphans"
    -- books whose copyright ownership is unclear --
    and it authorizes google to charge as much as $20
    for print-on-demand hard-copy of those books...

    since current p.o.d. machinery has a consumable cost
    of one penny per page, a cost that will likely drop more,
    the cost of a 250-page book should be more like $3-$5,
    not $20, or even the $10 "median-price" google charts...

    making a windfall like this over material they do not "own"
    in any sense of the word -- books that were _abandoned_ --
    is unconscionable, a rip-off of the public, plain and simple.

    -bowerbird

     

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  17.  
    identicon
    Lawrence D’Oliveiro, Mar 17th, 2009 @ 4:28pm

    I’ve said it before...

    ...they should change their slogan from “don’t be evil” to “don’t be bloody stupid”.

     

    reply to this | link to this | view in thread ]


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