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Google's Plan For Out-of-Print Books Is Challenged

ScuttleMonkey posted more than 5 years ago | from the time-for-yet-another-open-source-license dept.

Google 324

Death Metal writes to tell us that a growing tide of complaints are being piled at Google's feet in response to a far-reaching settlement that some feel will grant the giant too much power over the "orphan books" they have been scanning into digital format. The settlement could give Google near-exclusivity with respect to the copyright of orphan works — books that the author and publisher have essentially abandoned. They are out of print, and while they remain under copyright, the rights holders are unknown or cannot be found. "Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database. The settlement, 'takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,' said Robert Darnton, head of the Harvard University library system. 'Google will be a monopoly.'"

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The Same Old Story (5, Interesting)

eldavojohn (898314) | more than 5 years ago | (#27478051)

The settlement, 'takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,' said Robert Darnton, head of the Harvard University library system. 'Google will be a monopoly.'

Why is it that books -- of all things -- should be the last thing to be digitized [slashdot.org] ?

Your resistance is futile. It perplexes me that you -- a university librarian -- cannot see what is so obvious to me but I will spoon feed it to you. We live in a capitalistic society where supply rises to meet demand. I am a ravenous consumer of books and for sometime have desired an all-encompassing repository of books. You, the writers guilds, the publishers, the industry as a whole have failed to meet this demand for sometime now. Unfortunately for you, the early bird gets the worm. The early bird being Google, the worm being my rewarding eyeballs and possibly pocketbook. I may have been the minority of your consumers but that has changed and it is no longer you against a few nerds. It's you against the world. You will lose. Your industry has successfully prevented this. Why, I'm not quite sure. Greed? Stupidity? There are so many good words to pick from.

You will have to forgive me when I lack sympathy for your position on the books your archaic publishing system fails to make available to me. Oh no, no one will ever be able to publish them now! Alas, woe is me. Instead of being permanently unavailable to me, they will soon be available to everyone ... I'm not even going to get into the jump they see in sales when their books are digitized.

If Google's inevitable monopoly is nigh, why don't you draw up your own business plan to garner venture capital and get all the universities to back you on it? Google's taking a risk and in the end, it's going to be good for the end consumer.

Either shit or get off the toilet. You had your chance, you squandered it. This should have been started almost a decade ago and completed five years ago. I'm sick and tired of the greed factor inhibiting such a useful tool for mankind. As head of an ivy league university library, I would have guessed support for what could well be the modern digital version of Alexandria before it was burned. I'm shocked a librarian would take this stance.

re-read the section you quote (5, Informative)

Reality Master 201 (578873) | more than 5 years ago | (#27478173)

Your rant may well be spot on in terms of the general attitude of librarians. But please note what the man actually said:

The settlement, 'takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,' said Robert Darnton, head of the Harvard University library system. 'Google will be a monopoly

Given that specific bit you quote, the man is concerned about Google being the exclusive source of access to these books; he's not expressing fear that his industry is going away, but that what's replacing it will have less freedom of access. You can debate if that's the case or not, but at least address what the man's talking about.

Re:re-read the section you quote (5, Insightful)

jedidiah (1196) | more than 5 years ago | (#27478215)

There is a very simple and very obvious solution to all of this.

Let orphan works fall into the public domain.

Yeah, copyright run amok causes problems. We could have told you that before any of this business.

So add book publishers to the list of greedy idiots that handed a technology company a monopoly on a silver platter.

Re:re-read the section you quote (4, Insightful)

Blue Stone (582566) | more than 5 years ago | (#27478449)

In the UK, and a few other countries, if you have cash in a bank account and don't touch it for 15 years, the government will seize it and give it away to charity.

That's real actual CASH. Tangible (erm ... ok ... not entirely) but it's actual property. So why the hell not do that with Imaginary Property that's been 'abandoned'?

Re:re-read the section you quote (4, Insightful)

aaandre (526056) | more than 5 years ago | (#27478765)

Current IP laws do not aim for the benefit of the public or fairness or logic. They only aim for the benefit of corporations by enabling them to extort money from the public, i.e. from humanity.

The initial intention of the law, to benefit inventors, artists, scientists etc. who actually put time and money into the creation of their work has been blown out of proportion, aiming to turn IP into something similar to real estate.

Anyone can have an idea, it doesn't take that much time to do research or write a song. Implying that the products of these efforts should be property forever* is ridiculous.

*I consider 100+ years to be "forever" given that it's longer than the average lifespan.

5, 10, 15 year terms encourage artists, inventors, scientists enough.

The public is what makes a work more valuable by giving its collective attention to it. The current copyright law terms and conditions are overreaching and rob the public.

Re:re-read the section you quote (2, Informative)

MyLongNickName (822545) | more than 5 years ago | (#27478787)

[citation needed]

Re:re-read the section you quote (1)

Chaos Incarnate (772793) | more than 5 years ago | (#27478817)

It's not always up to the creator/owner of the IP whether or not the works stay available. An author is at the whim of the publishers whether or not their work will stay in print.

Re:re-read the section you quote (0)

Anonymous Coward | more than 5 years ago | (#27478891)

Woah, so much for my pension fund...

Re:re-read the section you quote (4, Insightful)

TheRealMindChild (743925) | more than 5 years ago | (#27478237)

the man is concerned about Google being the exclusive source of access to these books

There is nothing from keeping anyone from getting access to these books the same way that Google did...

Re:re-read the section you quote (1)

Cube Steak (1520237) | more than 5 years ago | (#27478289)

You mean except for the fact that they are co-opting copyrights on orphan books that would prevent others from doing this?

Re:re-read the section you quote (2, Informative)

Chyeld (713439) | more than 5 years ago | (#27478693)

They aren't co-opting anything. They don't claim copyright on the orphaned books, they simply republish them with the majority of the funds going to the copyright holder (if they can be identified).

Re:re-read the section you quote (4, Insightful)

canajin56 (660655) | more than 5 years ago | (#27478525)

You mean just scanning 7 million of them and putting them online, then getting sued, and throwing enough lawyers at all the publishers to get a settlement where you don't allow in-print works to be accessed, and in exchange they grant you a license for all out-of-print works? That "same way that Google did"?

Re:re-read the section you quote (4, Insightful)

Chyeld (713439) | more than 5 years ago | (#27478751)

No, now that Google has put the brunt of their weight and money on the issue, I would dare to say the next person who comes along will simply need to pay for the scanning service and access to the library.

In other words, Google isn't locking anyone out of anything. The only barrier to entry will be the standard "I need money to make money" barrier that has nothing to do with Google.

Re:re-read the section you quote (0)

Anonymous Coward | more than 5 years ago | (#27478805)

Yes.

Re:re-read the section you quote (1)

johnsonav (1098915) | more than 5 years ago | (#27478567)

There is nothing from keeping anyone from getting access to these books the same way that Google did...

FTFA:

Since no such authorization is possible for orphan works, only Google would have access to them, so only Google could assemble a truly comprehensive book database.

It sounds like this settlement is what's preventing any potential competitor from getting access to these books the same way Google did.

Re:re-read the section you quote (2, Insightful)

Bill Dog (726542) | more than 5 years ago | (#27478681)

It's funny how Slashdotters completely forget what "anti-competitive behavior" means when the perpetrator is not spelled M-I-C-R-O-S-O-F-T.

Re:re-read the section you quote (1)

ClosedSource (238333) | more than 5 years ago | (#27478939)

Don't worry. In 20 years the future equivalent of the Borg will be part of the logo that the future equivalent of Slashdot will be using with articles about Google.

Re:The Same Old Story (1, Informative)

Anonymous Coward | more than 5 years ago | (#27478177)

Just like Lexis/Nexis, the Canadian-based company that has copyright notice on most online US law sources.

Re:The Same Old Story (2, Insightful)

Anonymous Coward | more than 5 years ago | (#27478251)

This is not a useful tool for mankind.

a useful tool for mankind is something like... fire.

or a wheel.

This is a database of books. It is an interesting application, but it is not one that should be awarding copyright over the books in question.

it is certainly not groundbreaking.

in any case, I say that if a given book is public domain before this project, it should remain public domain after this project, or the library of Alexandria the parent envisions this project as will become the sole repository of these books, which is both unsafe and unreasonable. Just ask the previous owners of the library of Alexandria.

The right to withold a work (2, Interesting)

IndustrialComplex (975015) | more than 5 years ago | (#27478279)

It also helps to highlight one of the major issues with the long length of copyright in the United States. Given that information is owned by the Public once it is produced and We the Public actually limit our own rights to reproduce a work for a limited period of time in the form of copyright, isn't someone witholding the work or getting this effort tangled up actually a violation of the spirit of the agreement between the creator and the Public?

In that sense, I think what google is doing is Right. In the interest of the Public their actions will do more to promote mankind than the perversion that copyright has become in the United States.

When it comes to Google's right to reproduce such works for profit, I become hesitant, but my level of fear from this sort of action only rises to a level I might call 'slight concern'. I HOPE that Google's effort succeeds. If they end up being able to charge a reasonable (w/ respect to cost) amount for the imaging, processing, storing, and production of this database, I think that would be more than fair.

Our Government should have done this years ago.

Except that... (3, Insightful)

tjstork (137384) | more than 5 years ago | (#27478511)

Those books are not yours. That's the fundamental thing. THAT PROPERTY IS NOT YOURS. If I am Joe author of a book, and Google scans it, I have every right to demand Google yank it back out. Convenience is not an excuse to violate civil rights.

Re:Except that... (4, Interesting)

0100010001010011 (652467) | more than 5 years ago | (#27478737)

Except you died. Your estate wants nothing really to do with your book and the last known publication was 20 years ago.

And now, someone actually wants to read the book...

Re:Except that... (4, Insightful)

Volante3192 (953645) | more than 5 years ago | (#27478875)

Not even that, we can't even be sure his estate holds the copyright and if we are sure his estate holds it, he didn't leave any heirs we can't find anyone with power of attorney.

Also: someone wants to read the book and the closest tangible copy is 700 miles away in a University collection.

Re:Except that... (1)

tjstork (137384) | more than 5 years ago | (#27478881)

Except you died. Your estate wants nothing really to do with your book and the last known publication was 20 years ago.

And now, someone actually wants to read the book...

Then, write the estate a check. Gee, isn't that simple!

Re:Except that... (4, Insightful)

Runaway1956 (1322357) | more than 5 years ago | (#27478819)

Well, Joe, it's kinda late now. Let's suppose that I have a boat. Speed boat, pleasure boat, party barge, sailboat, it doesn't matter. I have a boat. I somehow manage to sink the boat. It lies submerged for months, even years. The thing is ABANDONED. Some dude comes out, spends a day or a week floating my wreck off the bottom, and brings it ashore. Do you think I retain any legal right to that boat? Or, how about your car? You fail to maintain it, and it slowly rusts away, with the rain washing your rust streak onto my property. One day, I come out and shovel up all the iron (mostly iron oxide) to haul away to a scrap yard. You think you're going to get any of the salvage money?

Joe Author needs a reality check. Abandoned property is no longer "his".

Re:Except that... (0, Redundant)

tjstork (137384) | more than 5 years ago | (#27478867)

Joe Author needs a reality check. Abandoned property is no longer "his".

So, does that mean that I can go rummage through your attic and start taking all your stuff because you haven't used it in a while?

It's theft dude.

Re:Except that... (1)

mhenley (542737) | more than 5 years ago | (#27478843)

If thats the case, the work is no longer orphaned.

Re:Except that... (0)

Anonymous Coward | more than 5 years ago | (#27478987)

... as author of an orphaned book, you aren't reachable and haven't made any effort to enforce the copy-right. In fact, it is unlikely that you are even alive.

Google will own the books? (1)

lymond01 (314120) | more than 5 years ago | (#27478103)

It seems fine that Google could sell the books if the existing copyright has expired or can't be upheld. But there should be no problem with someone else downloading the material and reselling it or giving it out or copying it. Once the copyright expires, doesn't the work go into the public domain? Google can charge for access, but they can't charge for the work persay.

Please correct me if I'm wrong.

Re:Google will own the books? (4, Informative)

AKAImBatman (238306) | more than 5 years ago | (#27478161)

But there should be no problem with someone else downloading the material and reselling it or giving it out or copying it.

It's not quite that easy. The original work goes into the public domain, but only the original work. Republications obtain a new copyright on the version of the work. So if Google scanned in a bunch of public domain books and distributed in their own format, they'd probably have a copyright on those digital files.

I say *probably* because a direct scan is likely to be Yet Another Legal Gray Area(TM). The courts might decide that the digital container is sufficient transformation of the work to warrant a new copyright. Or they might decide that it's merely space shifted and deny copyright protection.

For legal advice, please contact a real lawyer. (I just play on on Slashdot. Which is much more interesting than TV. :-P)

Re:Google will own the books? (3, Informative)

Blue Stone (582566) | more than 5 years ago | (#27478487)

"So if Google scanned in a bunch of public domain books and distributed in their own format, they'd probably have a copyright on those digital files."

I don't think simply scanning something is enough to secure copyright - there has to be a creative artistic component before someone can secure copyright. I think the bar is set quite low, but it has to be there.

Re:Google will own the books? (3, Interesting)

AKAImBatman (238306) | more than 5 years ago | (#27478629)

Just because you and I believe something to be true doesn't mean that a judge will agree. There will likely be quite a few factors that would play into a judge's decision. e.g. Was the scanning process completely automated or where there manual steps? Were any changes made to the layout or format of the text? Were images and/or the cover remade? Does the digital technology count as creativity added to the work?

These questions and many others would likely play a role in any court case. How the judge decides might very well depend on the judge, the phase of the moon, and which way the wind is blowing. Thus unless you're looking to go to court, you must assume that the work is copyrighted. At least until someone is gutsy enough to prove otherwise.

Re:Google will own the books? (3, Interesting)

Bobb9000 (796960) | more than 5 years ago | (#27478941)

Actually, judges have already agreed, at least with regard to art: Bridgeman Art Library v. Corel Corp. [wikipedia.org] . While you are correct that a new court would have to apply precedent to see if scanning books counts as the same thing, everything I know about this field of law says that they don't have a chance in hell of getting a new copyright.

From a practical perspective, there is some danger, because the threat of litigation from a big company can be enough to shut down a small entity just because of the cost of going to court, even where the company doesn't have much of a chance of success. However, I think this is pretty clear-cut.

BTW, I am a law student, but I am not your lawyer. I'm not even your law student.

Re:Google will own the books? (1, Redundant)

Narpak (961733) | more than 5 years ago | (#27478205)

I would agree with this. There is nothing wrong with charging fees to access an extensive database of works. But if Google are to be given exclusive rights to those works for the foreseeable future that would be a negative as far as public domain ownership is concerned.

In fact I would say that long-term corporate ownership of works of literature (in particular after the author is dead and buried) is an abomination.

Re:Google will own the books? (1)

Samschnooks (1415697) | more than 5 years ago | (#27478209)

I'm wondering that too. If they're orphaned, then aren't they in the public domain and no one can "control" them.

I found this regarding finding orphaned works [boingboing.net] and it gives some other information. Unfortunately, when I google for orphaned works, this whole Google things comes up - surprise, surprise.

Re:Google will own the books? (1)

Xaoswolf (524554) | more than 5 years ago | (#27478357)

Gotta agree with you. Just like a Shakespeare, I can own the copy that I publish, but it doesn't stop someone else from publishing it also.

They'll own their own data base, but someone else could do the same thing.

Re:Google will own the books? (3, Informative)

Red Flayer (890720) | more than 5 years ago | (#27478375)

Sorry to nitpick:

Google can charge for access, but they can't charge for the work persay.

The phrase you are looking for is per se, it's latin.

Google will be able to provide access to the material, that almost no one else can (since the books are out of print). They are free to sell access to, or to publish, those works (since no one will make a copyright claim against them for these orphaned works).

However, Googoe does NOT have copyright on these works. Anyone else may publish them as well, and Google has no recourse against them, since copyright did not pass to Google.

This is all fine.

Someone could actually copypaste from Google, and publish on their own, and Google would have no legal recourse regarding copyright. However, Google might have recourse based upon their contract with the person who copied from Google... the license contract between Google and the User to access the content might(!) specifically forbid republication, in which case the User could be liable.

Re:Google will own the books? (1)

jimbolauski (882977) | more than 5 years ago | (#27478435)

They are talking about books that are still are under copyright but have no copyright holder(copyright lasts for 70 years after the death of an author). I didn't read the legal decision but Google should not have exclusive rights to republish these books online which the article says they have, pending review by a federal judge. Now if TFA was misleading and Google would just have rights to their scanned copies I have no problem with this as long as an attempt to find the copyright holder was made and that if said copyright holder surfaces Google would owe them two or three times the standard amount for royalties per copy sold.

Wrong (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27478561)

This is all about making it easier for Google executives to molest small children.

Look it up.

Re:Wrong (2, Funny)

Contusion (1332851) | more than 5 years ago | (#27478759)

Sorry, you'll have to try again. The standard quota is as follows:
  • Child molestation accusation: x1 (check!)
  • Racial Slurs: minimum 15% of total word count
  • Governmental Conspiracy/Incompetence: 1x - can be omitted so long as the phrase "Obama Messiah" is present in the racial diatribe.

So do it yourself, better.. (5, Insightful)

Anonymous Coward | more than 5 years ago | (#27478109)

Honestly, this seems like Google-bashing for its own sake. Who else is making a serious effort to get a hold of these orphan books and put them out there? Last I checked, absolutely no one.

If the choice is a monopoly over the digitized copy of these books, or letting them fade into obscurity un-digitized, do we really want to choose option B?

Re:So do it yourself, better.. (0)

Anonymous Coward | more than 5 years ago | (#27478349)

Yes, we do. Because the precedent of unilateral appropriation of copyrighted materials by a third party is far, far worse than not having them available at all.

Re:So do it yourself, better.. (1)

canajin56 (660655) | more than 5 years ago | (#27478633)

They are not appropriated, they are licensed. Since it's not an exclusive license, the only thing preventing you from getting one yourself is the reluctance of the publishers to let others use their precious IP. Though since they agreed to this license with google, they may not be so reluctant after all.

Re:So do it yourself, better.. (1)

Danny Rathjens (8471) | more than 5 years ago | (#27478749)

When did you last check? Apparently before 1971 since Project Gutenberg pretty much started back then. :)
http://www.gutenberg.org/ [gutenberg.org]

Re:So do it yourself, better.. (3, Insightful)

lfourrier (209630) | more than 5 years ago | (#27478803)

Nobody tried to get a hold of these orphan books and put them out there, because such an activity is illegal, or a bad move.
Normal companies didn't do it. It is illegal.
Publisher surely didn't want to do it, because orphan works are the best. They are not competition(like public domain), and they are not accessible(unlike public domain).
When US signed Berne convention, they stopped a very reasonnable system, where the registration obligation prevented the very existence of orphan works.
By letting Google monopolize orphan works, one give a bonus to the player that didn't follow the rules. As a society, it is usualy a very bad idea.

Re:So do it yourself, better.. (1)

ClosedSource (238333) | more than 5 years ago | (#27479003)

"Who else is making a serious effort to get a hold of these orphan books and put them out there? Last I checked, absolutely no one."

So if only a single thief is interested in ripping something off it makes it OK?

Orphaned? (5, Insightful)

BrokenHalo (565198) | more than 5 years ago | (#27478129)

If these books are truly orphaned, it would be vastly preferable if Google were able to find it in themselves to donate some of their vast resources to putting the works up on Project Gutenberg.

That would go a long way towards telling the world that their intentions are honest.

Re:Orphaned? (4, Informative)

Jared555 (874152) | more than 5 years ago | (#27478199)

If I remember correctly Project Gutenberg only accepts books that are truly in public domain. If this was the case they could just copy the text from Google and put it on their website anyway.

Re:Orphaned? (3, Interesting)

hardburn (141468) | more than 5 years ago | (#27478463)

They have a few exceptions where the copyright holder has made a deal with them, like Bruce Sterling's Hacker Crackdown.

Re:Orphaned? (0)

Anonymous Coward | more than 5 years ago | (#27478201)

That would go a long way towards telling the world that their intentions are honest.

Google is in the business of making money, why should they beat around the bush about it?

Re:Orphaned? (1)

SnarfQuest (469614) | more than 5 years ago | (#27478433)

Google usually serves raw scans of books, with raw OCR for searching. They usually limit the number of pages available for books still in copyright.

Project Gutenberg serves books in text formats that have gone through several rounds of proofreading. The only accept books that are out of copyright, or have been released by the owners.

Re:Orphaned? (2, Insightful)

PotatoSan (1350933) | more than 5 years ago | (#27478829)

But "orphaned" works are not in the public domain. They're still protected by copyright, but no one knows who holds the copyright. It may be that no living person or existing corporate entity does. Unfortunately, thanks to copyright law, they don't just enter the public domain, and thus no one can reprint or republish them.

Conflicted (5, Interesting)

Narpak (961733) | more than 5 years ago | (#27478135)

While the creation of such a database would be a good thing, in my mind, I do not think it anyone should have sole control of the works contained there in; at least not for very long. I admire and respect the financial burden such a system will cost to create and maintain, particularity during the starting phases.

However I feel that if Google are to be given any rights over works as the ones mentioned then it should be for a limited time only. Perhaps as a reward for taking the initiate and as way for them to profit from their endeavour. But as I said, only for, say 5-10 years, after that the rights to any such material should be freely available to everyone.

In any regards I would consider any sort of long-term or permanent rights given to Google would be a very bad thing.

Re:Conflicted (1)

Tim12s (209786) | more than 5 years ago | (#27478343)

They spent the money to digitize them and I am sure that someone else can digitize the same books... they did not burn the books did they? Is everyone else just lazy?

I think that the real question you pose is who has legal independent jurisdiction over the unclaimed books. Publishers will obviously complain because they have financial motivation.

Re:Conflicted (2, Insightful)

Attila Dimedici (1036002) | more than 5 years ago | (#27478603)

The actual complaint as someone further up posted seems to be that Google will have the copyright on the digitized version. If they have copyright on it, you cannot make a new digitized version without at least facing legal confrontation with Google (whether or not you win, it will still be expensive). If these works were worth the legal expense of confronting Google, they would still be in print.

Re:Conflicted (2, Insightful)

Red Flayer (890720) | more than 5 years ago | (#27478555)

However I feel that if Google are to be given any rights over works as the ones mentioned then it should be for a limited time only. Perhaps as a reward for taking the initiate and as way for them to profit from their endeavour. But as I said, only for, say 5-10 years, after that the rights to any such material should be freely available to everyone.

They should not be given any rights at all. They can enforce their control over the contents via licensing.

If I go and digitize and publish one of these orphan works myself, Google should not be able to stop me. And I don't believe they'd try. Only the legal copyright holder (or assigned designee) could try to sue me for copyright infringement.

If I try to republish orphan works that Google has digitized, that I acquired from Google -- then fine, I would be profiting from Google's work and they should have recourse against me. But, that recourse should not be enforcement of copyright, it should be violation of contract (which I would have agreed to prior to downloading the work).

The only reason to assign some form of copyright to Google for these works is so that Google could use the legal copyright enforcement structure (and associated laws) to enforce their claim. I don't think that claim is valid, they have legal recourse according to contract law, and since they are not the owners of the copyright, they should be able to make no claims nuder copyright law. Ever (foir these orphaned works).

I would say.... (4, Insightful)

Nicopa (87617) | more than 5 years ago | (#27478149)

I would say that a monopoly of one is better than a monopoly of zero...

Re:I would say.... (5, Interesting)

MozeeToby (1163751) | more than 5 years ago | (#27478269)

I guess I don't see why Google has a monopoly at all. Does anyone know how Google managed to get exclusive rights to orphaned books especially when, by definition, the owners of the materials weren't present for any negotiations? Why not just open the books up to everyone, including Google. If Google decides to be evil, someone else can pay to have the books scanned and charge whatever they want for them. Alternatively, just put it in the settlement that Google cannot charge for access to the orphaned material.

It really doesn't seem like this should be that hard. There's an audience that wants access to books that no one is expecting royalties on; in an age of unlimited free copying, that should be a no brainer.

MOD PARENT UP (1)

srussia (884021) | more than 5 years ago | (#27478527)

Especially:

Does anyone know how Google managed to get exclusive rights to orphaned books especially when, by definition, the owners of the materials weren't present for any negotiations?

Re:I would say.... (1)

ckaminski (82854) | more than 5 years ago | (#27478879)

I don't think they are. I think what they're counting on is that orphaned works have no interested owner, and if one does show up, they'll address it then, perhaps with royalties on accessed material. If they make a best-effort attempt, they can (possibly) be absolved of willful infringement.

Re:I would say.... (1)

kabloom (755503) | more than 5 years ago | (#27478285)

This might be a case where we need to get to copyright reform one step at a time. To approve Google's deal would transform the way society relates to books, and transform the way people relate to dealing with orphaned copyrights. This could make the next step either be a competitor securing the same rights, or legislative changes to allow competitors to do the same thing.

GFineman (2, Interesting)

gfineman (742243) | more than 5 years ago | (#27478159)

I fail to see the problem. It is not as if Google is taking away the card catalogs or the inter-library loan system or anything else. It is simply adding to the existing access abilities. The libraries are afraid that Google will charge too much for access? Libraries do not buy the access and can continue to use what they have today.

Souls... (5, Insightful)

Extremus (1043274) | more than 5 years ago | (#27478175)

The settlement, 'takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,

Funny. It sounds like Google is going to steal the soul of these book and jail them in their databases. Hehe. There is no logic in this argument. The books are still available at the respective libraries. What is the problem in making them available at other place?

If you have a problem with this, then compete! (4, Insightful)

InsaneProcessor (869563) | more than 5 years ago | (#27478179)

Instead of bashing someone who decides to spend the money to implement a solution, why don't you just compete with them. Scan these books yourself and offer them online.

Oh, you don't have the financial resources to pull that off and you cannot get any backers? Well, I guess you really have nothing to say then.

Nothing to see here...move along.

Re:If you have a problem with this, then compete! (2, Insightful)

dkleinsc (563838) | more than 5 years ago | (#27478287)

My reaction to this was similar: We've gone from having in many cases 0 ways to get at these "orphaned" works to having 1 way to get at them. How is that not an improvement? Yes, having 2 or more would be better. But 1 is a heck of a lot better than 0.

Also good would be something similar to what Lessig et al have been arguing for years: if no one is profiting from it, why not put it under CC or into public domain?

Re:If you have a problem with this, then compete! (1)

dokhebi (89124) | more than 5 years ago | (#27478427)

I agree. Anyone who complains should put up or shut up. Also, it sounds like the complainers would rather not have the information available at all than to have Google make it available.

At least Google is doing something.

As always, just my $0.02 worth.

I don't get it. (4, Insightful)

NeutronCowboy (896098) | more than 5 years ago | (#27478185)

What's preventing others from scanning those same books again? Yes, it's a pain in the butt, but that's exactly why Google should be allowed to ask for whatever the market is willing to bear.

The only problem I can see if various ideas [ivanhoffman.com] for the copyright protection of databases come to pass. Then Google could indeed have a perpetual monopoly for their list of orphaned copies.

Re:I don't get it. (2)

TubeSteak (669689) | more than 5 years ago | (#27478405)

What's preventing others from scanning those same books again?

Google scanned all those books without asking for permission and only negotiated [license] from [book licensing people] after the fact. If someone else wants to scan those books, they're also going to have to negotiate [license] from [book licensing people].

So Google, AFAIK, is the only organization with a license to do [stuff] with all those orphaned works.

Re:I don't get it. (1, Redundant)

canajin56 (660655) | more than 5 years ago | (#27478475)

You misunderstand. Google started scanning all sorts of books, out of print and otherwise, and making them searchable. Publishers sued. Rather than go to court, Google settled. Part of the settlement package is that Google gets rights to all of these publishers orphaned works, and I think in exchange they don't let you search in-print text, or at least, they don't let you see the surrounding text, just give you a line and page number? What's preventing others from doing the same is that first you have to scan millions of books BEFORE YOU GET THE LICENSE, then get sued, then throw enough lawyers at the publisher to get them to settle and give you a blanket license to all of their out of print works...

Google wants to corner the market in orphan books (0)

Anonymous Coward | more than 5 years ago | (#27478189)

Pwning Dickens is just the start. I don't think even Annie is safe.

Interesting that a librarian should say this... (4, Insightful)

GPLDAN (732269) | more than 5 years ago | (#27478203)

Libraries often compete with one another on collections. They strive to be the foremost collection on some topic, maybe it's 17th century farming techniques, or modern optics. They compete and they gather rich alumni at major universities to donate private works and give them money to expand their very special collections.

Now along comes Google. Scanning books and keeping copyright on works that have been long abandoned. Some Universities were happy to take Google's money to be part of the scanning project, but now some want to turn and bite that hand.

If I can find a long since out of print book that no library has, or at least that no library would dare loan me, online and in a reproducible format - explain to me how that is different from assembling a rare collection in a library? Explain how the term monopoly is used in this context, because I do not think that word means what Senor Darnton from Hahh-vahhd thinks it means.

Google is adding to the diversity of publications in the world, and giving it to mankind. What they are doing, IN ACTUALITY, is removing the monopoly that university libraries once had. So I can see why they might be upset about it.

Re:Interesting that a librarian should say this... (1)

blahplusplus (757119) | more than 5 years ago | (#27478931)

Truth be told it's all bullshit. Many libraries never have the books you need, everytime I've needed a book I've had to send wait while using intralibrary loans, quite frankly I'm glad google is sucking back the worlds knowledge. In the digital age, I should be able to search a book, cut and paste text from a book, etc. You can't do that very easy with traditional deadtree books. They both have a place, but digitizing the worlds books can only be a boon for civilization as a whole. This is where knowledge > profits IMHO.

dastardly implication (1)

tsstahl (812393) | more than 5 years ago | (#27478257)

The implication is that Google is destroying said books after scanning. The problem is that no one nowhere has actually said this.

AFAICT there is nothing stopping another entity from creating their own copyrightable anthology of orphaned works. Simplistic solution, yet not impossible to achieve in the real world.

Re:dastardly implication (2, Insightful)

canajin56 (660655) | more than 5 years ago | (#27478509)

No, the implication is that Google has an exclusive right to these books now. And they don't, depending on how you turn the phrase. In the sense that nobody else is ever allowed to get a license, no, it's not exclusive. In the sense that nobody else DOES have one, then yes, it's exclusive. There is something stopping another entity from creating their own anthology: The fact that Google has a license now, and nobody else does. ;) Google threw a lot of lawyers and money at the publishers to get this settlement package. Not everybody can do that to a team of large corporations.

Re:dastardly implication (0)

Anonymous Coward | more than 5 years ago | (#27478679)

As someone who has been in a google book farm, let me just say that, yes, google does destroy some books. Some book are scanned by hand; the really old ones, usually owned by someone else. The destroyed, donated items have their bindings removed and are sent through a machine. So in terms of orphaned books, if they're owned by the library, they probably aren't destroyed. If they're picked up in the bargain bin somewhere, they probably are.

Similar agreement to Google? (1)

NotNormallyNormal (1311339) | more than 5 years ago | (#27478291)

What is preventing anyone from rescanning the books or getting a similar agree? Personally, I often scan important journal articles that aren't already electronic and often chapters of books that are popular amongst researchers yet hard to find.

Re:Similar agreement to Google? (1)

odin84gk (1162545) | more than 5 years ago | (#27478467)

From the article:

Proceeds from the program, including advertising revenue from Googleâ(TM)s book search service, will be split; Google will take 37 percent, and authors and publishers will share the rest. Google will also help set up a Book Rights Registry, run by authors and publishers, to administer rights and distribute payments.

Authors are permitted to opt out of the settlement or remove individual books from Googleâ(TM)s database. Google says it expects the pool of orphan books to shrink as authors learn about the registry and claim their books.

While the registryâ(TM)s agreement with Google is not exclusive, the registry will be allowed to license to others only the books whose authors and publishers have explicitly authorized it. Since no such authorization is possible for orphan works, only Google would have access to them, so only Google could assemble a truly comprehensive book database.

In other words, right now it is a mad grab for the "Orphaned" books. Once those are all taken by Google, no one else will be able to "publish" an orphaned book unless they have consent from the original author and publisher. Then again, if the author and publisher were known, the book wouldn't have been orphaned in the first place.

The only people this will really impact will be the other companies that are trying to create an Online repository of books.

Errr... (1)

palindrome (34830) | more than 5 years ago | (#27478305)

"Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database."

So is Google burning the books after they've scanned them?

Exclusive rights? (1)

PPH (736903) | more than 5 years ago | (#27478325)

To orphaned books? How exactly does Google do this? If the rights holders can't be identified, I mean? If Google thinks it can scan them and make them available (on line or otherwise), fine. That might be the only way we have to gain access to some of these works. But I don't see how Google can stop a third party from scanning a copy themselves. And making it available at competitive rates wrt Google's.

Now, I can see a problem if Google manages to obtain all (or most) of the copies of a certain work, making it impossible for others to scan it or even read it. But that will have to be addressed on a case-by-case basis. The monopolization will have to be balanced against the value of access to the public. And for extremely rare books, the access provided by Google may outweigh the monopoly. Odds are that the public was never going to get to see a hard copy anyway.

What? (4, Insightful)

Thyamine (531612) | more than 5 years ago | (#27478341)

There are books that no one is printing anymore, we all know this, and most of us have probably wanted one at some time or another. Here is Google putting together a solution, and people are bitching? I understand the general complain of 'monopoly', but as other people have stated they aren't destroying the other books out there. If it's in a library and you don't want to pay Google, go look it up in the library.

As for the other people who are complaining, again, go start a business and start digitizing them yourself. At face value I don't see a problem with this, they have the means to fill a niche that no one else wants/can. Why aren't publishers already doing all this? I should be able to go to a publisher's website and purchase/download any book they have rights to, but they don't, so let Google step in and attempt to create a new market.

... and Microsoft hates it. (1)

javilon (99157) | more than 5 years ago | (#27478363)

"Some of Google's rivals are clearly interested in the settlement's fate. Microsoft is helping to finance the research on the settlement at the New York Law School institute. James Grimmelmann, an associate professor at the institute, said its work was not influenced by Microsoft. Microsoft confirmed this but declined to comment further."

Microsoft used to grow by buying or copying what others do, but it doesn't work with Google. It didn't work trying to copy its search functionality, or its maps functionality (M$ has a negligible share of both markets) so what they do is trying to destroy google's business. They don't even try to compete anymore.

If I can't have you (1)

Renegade Iconoclast (1415775) | more than 5 years ago | (#27478389)

NOBODY CAN!

Damn, and I was really looking forward to the 1939 edition of "Cooking with possums."

explain (3, Interesting)

Khashishi (775369) | more than 5 years ago | (#27478395)

So, is Google asserting copyright on the scans of the books whose copyright Google doesn't own? Could I just copy and redistribute Google's scan of the book? After all, I have as much claim to the book as Google, and the scan itself is not a creative work.

Re:explain (0)

Anonymous Coward | more than 5 years ago | (#27478929)

I don't think they are.

If you read the whole article, there's this:

While the registry's agreement with Google is not exclusive, the registry will be allowed to license to others only the books whose authors and publishers have explicitly authorized it. Since no such authorization is possible for orphan works, only Google would have access to them, so only Google could assemble a truly comprehensive book database.

So it looks like this to me: Part of Google's deal with the publishers, to allow Google to distribute 100% of the works the publishers actually own, is that a registry of orphan works gets set up. If the owners of an orphan work go through the registry, Google gets a license to digitally distribute the entire work automatically (or semi-automatically), the registry can license to people besides Google if the real owner of the orphan works allow it.

If the real owner isn't available, Google itself can't distribute a complete copy of the orphan work.

So it's not that Google is 'co-opting copyright', or anything like that - it's that Google is placing itself in a position where any owners that decide to go to the registry will be giving a license to Google.

So it's basically, other people can do it, and get licenses ... but only Google actually has access to scans of the entirety of the orphan works.

The obstacles to another company doing the exact same thing would appear to be a) getting the libraries to let them scan the books and b) cutting a similar deal with publishers for their non-orphan works.

Publishers probably aren't going to want to go for b, since they're getting money from Google, even if the libraries let someone else scan. So there's sort of a barrier to entry in place. I don't really see any co-opting of copyright going on, it's just that Google and the publishers have both committed themselves to an agreement where the interests of both parties will result in neither party wanting to cut any sort of deal with anyone else.

(I've been rereading The Strategy Of Conflict lately, so it's possible that's coloring my thinking on this. Google commits such that they can honestly say 'I can't you a copy of these orphan works to license out, you have to go through this registry', and the publishers commit such that they can honestly say 'Why would I give you a license to my works, my interest is in getting a ton of royalties from Google', so the situation locks not because of a change in the law, and not because of an assertion of copyright, but because both parties commit to agreements, and everyone else can see that they've committed to agreements, where the overall effect is no one else is likely to play. That's exactly the sort of thing Schelling talks about in the book. )

copyright law is the problem (1)

girlintraining (1395911) | more than 5 years ago | (#27478495)

People, you live under a government that believes public property is a public nuisance and liability. Ownership creates both liability and responsibility, which are critical tools to governmental use and control of a thing. If they could, they'd legislate a tax on air consumption, because air shouldn't be free (they've already done this on food and water, but air remains elusive). Even at that, we have air quality standards and emissions controls and all this talk about global warming. Even things that have no real physical counterpart (copyrights on digital copies of things) still adhere to this concept of "no public ownership".

All Google is doing is fulfilling your government's vision of having everything owned.

Go find your own manger. (1)

Cro Magnon (467622) | more than 5 years ago | (#27478513)

For some reason, I'm thinking about the story of the dog in the manger. Would they rather see the books vanish into obscurity than be digitized by Google?

Still better then universities (5, Insightful)

Urd (198177) | more than 5 years ago | (#27478531)

What a load of FUD!

- Google isn't charging for access.
- Universities do charge for access (or membership).
- Why wouldn't libraries find their own copies of orphaned books and include them in their catalog?

What is really in danger here is the university library business model: charge a premium for things that should be open to the public.

Far too many establishments seek to control access to information / and thus knowledge. I for one hope Google scans as many books/papers as possible. At least we'd be able to find them.

Why no competition? (5, Insightful)

Anonymous Coward | more than 5 years ago | (#27478559)

"no competitor will ever be able to compile the comprehensive online library Google aims to create"

Um, why not? If something is *out* of copyright entirely (not merely out of print, but actually in the public domain because the copyright term has expired) what exactly is stopping competitors from copying the same book and putting it on the web? I've seen plenty of examples of 19th-century books done that way [columbia.edu] -- people interested in those works sitting down with a scanner and laboriously scanning each page, then putting them on the web [columbia.edu] . Google a monopoly? Hardly, when every shmoe with a copy of the book and a scanner can duplicate it.

Oh, and university libraries are the *last* people that should be complaining about this, given that they're the ones with huge collections and they COULD HAVE DONE THE SAME THING decades ago, and still could now, if they wanted to serve their customers better. Years ago they should have gotten off their lazy posteriors and scanned *everything* in their library that is out of copyright. EVERYTHING. It means they could put the books in long-term storage (save money on shelf space), preserve the books better (no broken brittle paper or book bindings from further handling), and deliver copies of these old and rare works via interlibrary loan at far less expense and time (and wear-and-tear) than running them through a photocopier over and over again. At the very least they should be doing this only once, and then saving the copy digitally. It's freaking obvious.

Now they want to complain because google is doing their job for them? Sure, there's an important legal difference between "orphan works" and "copyright expired", but, really, why couldn't libraries have pushed for more flexibility with "orphan works" a long time ago? Some kind of broad, general license could have been negotiated. And why haven't they generally made all expired works available electronically, and let google walk into the market unchallenged?

There's hardly grounds for complaining about something they should have been doing a long time ago.

Re:Why no competition? (0)

Anonymous Coward | more than 5 years ago | (#27479017)

Depends on whether the scanning could be done non-destructively. Some rare books are fragile, and I would hate to see any library destroy their only copy of something, simply because our civilization has had very little success so far archiving digital information. Hell, we have managed to irretrievably lose work that was created in our own lifetimes!

Now they're complaining? (2, Interesting)

sehlat (180760) | more than 5 years ago | (#27478571)

At the time the publishers and authors complained and sued Google, there were warnings about this happening. But the publishers and authors, who regard our pocketbooks as their property, were satisfied with the bribe... er... settlment Google offered. And only NOW, after the Big G fought alone on this front, are they complaining.

Just curious, is the tale of the Little Red Hen, who could find no help with planting, cultivating and harvesting the corn that everybody who hadn't helped wanted to eat when the work was done, in the public domain? Send a copy to the complainers and require reciting it verbatim from memory as a requirement for filing any complaints.

Non issue (1)

jwhitener (198343) | more than 5 years ago | (#27478597)

This is a non-issue.

"And he said that nothing prevented a potential rival from following in its footsteps â" namely, by scanning books without explicit permission, waiting to be sued and working to secure a similar settlement. "

If the library association, or other large literary institutes wants (what they feel is) a more open version of the database, by all means, get to work scanning the millions of books.

It is not like the paper copies are going to be under lock and key at Google. Google is creating a vast digital copy of them. And providing that copy in various forms as a service that is paid for by advertising, licensing the copy to universities, and FREE to local libraries on one computer.

No one is forcing anyone to pay "high prices"! (1)

Anita Coney (648748) | more than 5 years ago | (#27478643)

If you don't want to pay Google's alleged "high prices" for copies of out of print books, then go to the library and scan them yourself. Or pay someone else to do it. Problem solved. Next please!

Re:No one is forcing anyone to pay "high prices"! (1)

mrphoton (1349555) | more than 5 years ago | (#27478825)

From personal experience, when a book is out of print there is a good reason for it. I had a lecturer once recommend a book which he insisted was the clearest book on the subject (Electromagnetics). Unfortunately, he said it is out of print. When I got around to digging it out of the library, it was _his_ book. And it was unclear and sloppy. There are a great many books out there which should remain out of print. (Granted there are some exceptions)

Can someone tag this 'wakeupalready'? (0)

Anonymous Coward | more than 5 years ago | (#27478699)

Seriously, what the hell? As many posters said before me, it's not Google's fault that books like these are not more widely available...

These are lies!! (0)

Anonymous Coward | more than 5 years ago | (#27478713)

When my university library made a deal with Google Books to have everything scanned, part of the deal was that Google delivered an electronic copy of everything they scanned TO THE LIBRARY ITSELF. That way, libraries can organize the information in any way they see fit, unlike the popularity contest/keyword search that Google excels in.

Sounds like lies to me.

source of criticism .. (3, Insightful)

rs232 (849320) | more than 5 years ago | (#27478791)

"Now millions of orphan books may get a new legal guardian [nytimes.com] "

Where in the text of the settlement is ownership transferred exclusively to Google?

"Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information"

Where in this settlement does it forbid anyone else creating an online archive of orphan works, Project Gutenberg [gutenberg.org] for instance. Would one source of this spontaneous concern be out of Redmond?

'at least one party nudging its way into the settlement is an Internet-issues oriented group from New York Law School .. But what does raise an eyebrow is the source of New York Law's funding [nytimes.com] on this matter: Microsoft. The chief investigator of the New York Law School project is James Grimmelmann. In an earlier career phase, associate law professor Grimmelmann worked as a programmer for Microsoft'

Going w/ Prof. Samuelson on this one (2, Informative)

Windrip (303053) | more than 5 years ago | (#27478797)

From TFA:

While the registry's agreement with Google is not exclusive, the registry will be allowed to license to others only the books whose authors and publishers have explicitly authorized it. Since no such authorization is possible for orphan works, only Google would have access to them, so only Google could assemble a truly comprehensive book database.

"No other company can realistically get an equivalent license," said Pamela Samuelson, a professor at the University of California, Berkeley, and co-director of the Berkeley Center for Law and Technology.

Her analysis of Sony V. Universal is required reading. Other articles can be found here [eserver.org]

Hot-Air (1)

supernatendo (1523947) | more than 5 years ago | (#27478845)

How do you make the case for a monopoly when it is an emerging "industry"? That would be like Hot-Air balloon makers saying, "since no one else in our industry has the capacity or desire to make a heavier-than-air flying machine, The Wright Bros. will be a Monopoly if we don't prevent them from flying!" Besides, I doubt Google will actually charge anybody, they make their money off of advertising, and who is to say another company can't scan the same orphaned works themselves?

Confusion over the meaning of "orphaned work" (1)

russotto (537200) | more than 5 years ago | (#27478955)

There seem to be two classes of work in question here. One is out of print works for whom the rightsholders are identified. The other is what is being called "orphaned" works, for whom the rightsholders cannot be identified. The identified works are being non-exclusively licensed to Google and a new Books Rights Registry. The complaint seems to be over the non-identified works; if no one claims them, the Books Rights Registry won't sublicense them, so only Google can use them.

This wouldn't be a problem in itself; under normal circumstances, Google couldn't use those books anyway unless it was willing to risk a copyright lawsuit when the rightsholder came forward. But this _class action_ settlement changes that. Not only does it settle any claims from those authors and publishers involved in the suit, but it settles future claims from every other author and publisher who may have a complaint about those books in the future. But only for Google. So if Google wants to provide access to an orphaned work, they can do so without risk of copyright penalties. If anyone else scans and provides access to that same work, they could be hit with a copyright suit if the missing rightsholder comes forward.

Google isn't exactly being evil here. But they are solving a major problem (orphaned works) in such a way that the solution benefits only themselves. And it is, IMO, a misuse of the class action process.

Interesting Idea (2, Insightful)

Haxx (314221) | more than 5 years ago | (#27479035)

If this doesn't cause all large publishers to steal the idea and add digitized, "out of print books" to a section of thier websites, then they deserve what they get. Publishers were just handed a fantastic business plan to expand thier companies. I'll bet that they don't do anything but hire lawyers.

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