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Grimmelmann On Google Books Settlement Fairness Hearing

timothy posted more than 4 years ago | from the eff-v.-epic-oh-my dept.

The Courts 95

somanyrobots writes with an excerpt from New York Law School professor James Grimmelmann's cogent report from Friday's fairness hearing about the current Google Books Library Project settlement agreement. That agreement has been proposed to resolve the dispute between Google and various rights holders about Google's plan to scan and electronically distribute many written works, including "orphan" works. "I was at the courthouse from 8:30 onwards, with the team of New York Law School students who've been working on the Public Index. We didn't want to take any chances that we might not make it in. (Last time, we were among the very last people seated.) No worries there; we got great seats in the overflow room, and in the afternoon, in the courtroom itself. I'm very glad I had the student team along with me. Their observations and insights about the arguments and the lawyers were invaluable in helping me write up this post. Other than my conversation with them, I've avoided reading the press coverage; I wanted to provide a direct account of how I saw the day's events, without being influenced by others' takes."

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first? (-1, Troll)

Anonymous Coward | more than 4 years ago | (#31226334)

I surely couldn't be first on slashdot

Arr! (-1, Troll)

Anonymous Coward | more than 4 years ago | (#31226478)

Suck me cock.

Re:first? (0)

Anonymous Coward | more than 4 years ago | (#31227548)

You can if you take some of this Grimmelmann's secret gold coins.

OMG (2, Insightful)

zappepcs (820751) | more than 4 years ago | (#31226350)

I'm not sure which way to point in this issue, but there is valid discussion on both sides. All I can say is this is one well done report!

Re:OMG (4, Insightful)

AK Marc (707885) | more than 4 years ago | (#31226632)

I agree. Copyright exists to get as much into the Public Domain as soon as possible. Abandonware, whether software or books, should immediately enter the Public Domain. I have no idea how to accomplish that fairly, but I know that's best for the public and harms no creator (as they've abandoned their work already). So I can't see any argument against this idea, but I can see massive arguments against any particular implementations.

Re:OMG (4, Interesting)

seifried (12921) | more than 4 years ago | (#31226846)

Simple, you have a yearly registration and nominal fee (say $1 per work). If the copyright holder doesn't register and pay the fee within say 30 days of a new year the copyright lapses and the work enters the public domain. Optionally you have the fee increase with the value of the copyrighted material (this could be done arbitrarily by raising the fee yearly, if the copyrighted material is worth enough money the fee will continue to be registered). This is basically the same idea as property taxes (you pay a few to keep the land even if you "own" it). The money made from this fee system could be tossed into general revenue, used to pay for the arts/etc, or whatever. I think the cost of copyright should be carried by the copyright holder and not by society (as it is right now since one automatically gets copyright for an absurdly long time just by creating a work).

Re:OMG (1)

digitalchinky (650880) | more than 4 years ago | (#31226906)

You haven't thought about this very well. Everything we create is largely automatically copyrighted (I didn't make the rules) - that doodle you scrawl out on a piece of paper, the photograph you take of your dog, the short piece of prose you write to describe your neighbors sexual problem, the list is endless.

You think a good solution is to have creative types (and all of us are to one extent or another) actually pay the government for the mere privilege of creating stuff? This is absurd. What constitutes a 'work' anyway? A photograph of your family? A mindless drawing you make while talking on the telephone? Or is there some clear distinction that I am just failing to see?

Re:OMG (3, Interesting)

seifried (12921) | more than 4 years ago | (#31226950)

Last I checked under my method you'd be able to create as much as you desire, it just wouldn't be copyrighted for a very long time. I give away a lot of my work under creative commons because I believe it's in my best interests to actually make things available to people for free and allow them to re purpose it. As it turns out this is correct and I've made a living for over a decade now doing this. It's not my job to find a workable business model that you like.

Re:OMG (0)

Anonymous Coward | more than 4 years ago | (#31227940)

It is if you want to convince somebody that you're right.

Re:OMG (3, Interesting)

bit01 (644603) | more than 4 years ago | (#31227648)

actually pay the government for the mere privilege of creating stuff?

No. The privilege of stopping billions of people from making a copy, in other words restricting the free speech of billions of people, and arbitrarily enforcing artificial scarcity.

A small annual fee is chickenfeed for that huge privilege.

---

DRM is the #1 cause of software failure today.

Re:OMG (1)

Anonymous Brave Guy (457657) | more than 3 years ago | (#31228134)

A small annual fee is chickenfeed for that huge privilege.

You seem to have forgotten the parts where the creator of the work invests a potentially large amount of time and/or money to make it in the first place and then agrees to public distribution, neither of which they are under any obligation to do.

Giving up the ability to make and distribute further copies for a limited time might be considered chickenfeed compared to the huge privilege of having others' work freely available in public afterwards.

Re:OMG (1)

sdiz (224607) | more than 3 years ago | (#31228614)

when we speak of Abandonware, it means the creator no longer interested in disturbing it.

Re:OMG (1)

Anonymous Brave Guy (457657) | more than 3 years ago | (#31232934)

Sure, but if we're talking about someone paying an ongoing annual fee (and we were) then we're not talking about abandonware.

Re:OMG (1)

sh00z (206503) | more than 3 years ago | (#31229026)

A small annual fee is chickenfeed for that huge privilege.

It seems to me I remember hearing similar arguments in favor of poll taxes. The poor should enjoy the same copyright protections as the rich.

Re:OMG (0)

Anonymous Coward | more than 4 years ago | (#31227794)

Absurd? Once you accept the bizarre notion of the right of owning the intangible, how can any manner of doing this be labeled "absurd"?

Re:OMG (1)

bkr1_2k (237627) | more than 3 years ago | (#31229020)

No, what the GP said was that the current system is in place to "protect copyright" and adding fees based on value of the work wouldn't be difficult and wouldn't inhibit any kind of creativity. There is already a registration fee for officially registering your work. Making that annual or "every 5 years" or something like that wouldn't be cost prohibitive for the creators or to administer and could potentially generate a useful source of cash to be used in supporting creative works or whatever else society wants to support.

A "work" is exactly as you described. Basically anything you create on paper or print, or event sculpt is copyrighted. If you feel like you want it protected, you have to actually register the copyright and actively pursue infringement. Whether it's music, visual art, written word, or whatever.

Re:OMG (1)

JNSL (1472357) | more than 4 years ago | (#31240760)

You do not need to register your work to get or keep a copyright, however, and that is what the proposed fee would require. Besides, this suggestion violates an international treaty - which may or may not really matter, but it'd come up.

Re:OMG (3, Insightful)

esme (17526) | more than 4 years ago | (#31228016)

I think this is the only way to prevent orphan works. And this argument is simple: if your book/film/song/etc. is "intellectual property", shouldn't you have to pay "intellectual property taxes"?

Re:OMG (1)

Eivind Eklund (5161) | more than 3 years ago | (#31228198)

According to how I read TFA, this would be in violation of the Berne convention.

I also think that it in general would be a challenge for people that create stuff; a more appropriate limit might be say that you have to do this for every published work you want to keep copyright on.

Eivind.

Re:OMG (3, Interesting)

Late Adopter (1492849) | more than 3 years ago | (#31229182)

Except that over the time period since we've adopted automatic copyright, people have grown used to the right to not have their vacation pictures used by a corporate advertising department that sees them on Flickr. There's a lot of non-commercial works out there, ones that people would (rightly or wrongly) be upset to see misappropriated.

How about a 5-year grace period before requiring registration?

Re:OMG (1)

cpt kangarooski (3773) | more than 4 years ago | (#31240564)

Except that over the time period since we've adopted automatic copyright, people have grown used to the right to not have their vacation pictures used by a corporate advertising department that sees them on Flickr. There's a lot of non-commercial works out there, ones that people would (rightly or wrongly) be upset to see misappropriated.

How about a 5-year grace period before requiring registration?

I don't mind a 1-year grace (same as for patents) simply because some people might publish instantly upon creation, and need some time to figure out the paperwork. Nor do I mind a more substantial grace for works still being created, or which are unpublished. But ultimately, copyrights should only be granted if works would not be created and published but for a copyright, and for the least amount of time necessary. If the people who don't want their vacation photos used are serious about it, they should either 1) not publish them (e.g. by putting them on flickr), which I think is unlikely to occur, or 2) register them, which is also probably unlikely.

But have no fear: I doubt that the corporate advertising departments will care enough to use the photos. They're not interested in them, which is why, despite the fact that you probably wouldn't charge very much, they probably don't even call you to get a license.

Re:OMG (2, Interesting)

DragonWriter (970822) | more than 3 years ago | (#31237438)

Simple, you have a yearly registration and nominal fee (say $1 per work).

I think that, at a minimum, you need a reasonable (say 7-10 years) "free" period. (In order to encourage deposit, and thus discourage the loss of works, I'd consider having a strong deposit -- of a copy of the work in the form protected -- requirement, which if not complied with within (say) 1 year would result in the work losing protection, but I wouldn't associate payment with that.)

I also personally prefer that once you require paying a fee, you make it a fixed-percentage tax on the declared value of the work, with a minimum but no maximum, and allow a work to be bought into the public domain by any interested party (or combination of parties) for the declared value.

Since even most commercially viable works make the vast majority of the money they earn for their copyright holder in the first few years they exist, this would have little impact on the incentives to create new works. It would also allow creators the choice to keep works under their exclusive control -- if they were willing to pay enough to do so (and thereby compensate the public for the special privilege they would be asking to have extended to them.) And the purchase-into-the-public-domain option would prevent copyright holders from undervaluing works, but also assure that they were fairly -- at the value they themselves set on the work -- compensated for any work taken into the public domain early (short of whatever maximum limit is set on the duration of even paid copyrights.)

Re:OMG (2, Insightful)

Colz Grigor (126123) | more than 4 years ago | (#31226882)

The fastest way to get as much into the Public Domain as soon as possible is to abandon copyright, therefore I cannot agree with your premise.

I believe that Copyright exists to provide a person with the legal right of control over works which they own (and recourse should their control be usurped) up to a reasonable point, when the ownership is transferred to the state. That "reasonable point" has been debated and extended over time, complicating our current system.

Abandonware, or orphaned works, don't have a legal entity beyond works which do not have an identifiable owner, however so long as we have a date for the work's creation the work is still subject to that "reasonable point", and any time an owner can be identified, the work is no longer abandoned or orphaned.

If your principle of abandonware were instituted, how would a work be declared as abandonware, and how would you deal with the situation when the owner of an abandoned work comes forward after-the-fact?

Re:OMG (2, Interesting)

micheas (231635) | more than 4 years ago | (#31227096)

The fastest way to get as much into the Public Domain as soon as possible is to abandon copyright, therefore I cannot agree with your premise.

I believe that Copyright exists to provide a person with the legal right of control over works which they own (and recourse should their control be usurped) up to a reasonable point, when the ownership is transferred to the state. That "reasonable point" has been debated and extended over time, complicating our current system.

Abandonware, or orphaned works, don't have a legal entity beyond works which do not have an identifiable owner, however so long as we have a date for the work's creation the work is still subject to that "reasonable point", and any time an owner can be identified, the work is no longer abandoned or orphaned.

If your principle of abandonware were instituted, how would a work be declared as abandonware, and how would you deal with the situation when the owner of an abandoned work comes forward after-the-fact?

The theory is that if you have copyright protections, people will produce more, and therefore more will wind up in the public domain.

If this is not true, then why should the general populous allow copyright to exist? Being as we are not benefiting from copyright law, should we not scrap it?

Crazy Statist Talk (1)

RobotRunAmok (595286) | more than 4 years ago | (#31227728)

Let's break it down:

Take Slashdot hivemind favorite Neal Stephenson. Are you trying to tell me that I -- or better yet, some e-e-e-e-vil Hollywood studio -- should be able to make a movie today from his "Snowcrash" -- same title, characters, lift the dialogue, whole nine yards -- and not pay Stephenson a dime? Is that what you are proposing? Seriously?

Re:Crazy Statist Talk (1)

micheas (231635) | more than 3 years ago | (#31228522)

Let's break it down:

Take Slashdot hivemind favorite Neal Stephenson. Are you trying to tell me that I -- or better yet, some e-e-e-e-vil Hollywood studio -- should be able to make a movie today from his "Snowcrash" -- same title, characters, lift the dialogue, whole nine yards -- and not pay Stephenson a dime? Is that what you are proposing? Seriously?

After sixteen years, why not?

Maybe extend it to thirty two years. The current copyright law is not how things have worked for the majority of human history.

Note that Shakespeare managed to make a decent living without copyright, although he was not one of the richest people in the world, unlike J.K. Rowling.

I know a lot of struggling writers, and I really don't see how current copyright law helps them any more than lottery tickets do. Copyright does not pay you to write a book, it pays you if people like your book after all the costs and effort has been expended. Personally I favor copyright of Books, Maps, and Movies for sixteen years renewable by the aothor for a total of thirty-two, or maybe renewable twice for a total of forty-eight years.

Re:Crazy Statist Talk (1)

DragonWriter (970822) | more than 3 years ago | (#31237110)

The current copyright law is not how things have worked for the majority of human history.

Neither is the idea of participatory government, freedom of religion, freedom of speech, security of property against arbitrary deprivation by government, etc.

"The way things have worked for the majority of human history" rarely has much relationship to the way things ought to work.

Re:Crazy Statist Talk (1)

JNSL (1472357) | more than 4 years ago | (#31240804)

But copyright reduces the risks creators undertake when they author works because, as the post you quoted points out, people could otherwise jump in and take what somebody else created. And then they've expended a lot, received little, and have less incentive to keep creating. His hypo is exactly how copyright law helps them.

Re:Crazy Statist Talk (1)

micheas (231635) | more than 4 years ago | (#31242084)

I am not sure that the risks are mitigated by much.

The percentage of starving artists that can afford $80,000 to go to court with full legal representation is small enough that I cannot see the Disney's of the world being overly concerned, beyond offering a small sum for the rights to avoid litigation.

Copyright does increase the size of the jackpot if you get lucky, but that is not so much a reduction in risk as a decrease in the risk/reward ratio./p.

Re:Crazy Statist Talk (1)

JNSL (1472357) | more than 4 years ago | (#31253122)

You act like settlements aren't rational. But they are. Settlements aren't compulsory, after all. And where there's money for settlement, there's money for legal representation.

Copyright does increase the size of the jackpot if you get lucky

It increases it from 0 no matter what, not just if you're lucky. You have no recourse for somebody taking your screenplay but for recognizing intellectual property.

but that is not so much a reduction in risk as a decrease in the risk/reward ratio.

What are you trying to say here? The only think I can figure out is so far from reasonable that I won't address it because it's probably just me not understanding what you're trying to convey. Clarify?

Re:Crazy Statist Talk (1)

micheas (231635) | more than 4 years ago | (#31255024)

What I am trying to say is that copyright does not address the sunk costs of production, which is the biggest issue for most artists I know.

While copyright does allow finished works that are fit for mass production to prosper, it does leave a lot of artists and writers below the poverty line in the U.S.

I just think that if we through out copyright, we should replace it with something that helps the unknowns, more than the successful artists. But, that is just my view

Re:Crazy Statist Talk (1)

JNSL (1472357) | more than 4 years ago | (#31255726)

Should copyright be used to hold people up who cannot make it with the work they produce, despite the value to others of that work being low or none, or at least less than it costs to produce it? Quite frankly, I've never seriously considered this as a possible justification because it's not an efficient use of resources. So, of course, my question for you is why should we encourage that amount of inefficient use of resources? Even current copyright is not perfectly efficient (after all, Disney can probably better use your screenplay than you when they steal it from you), but it's balanced against desert (at least on my view). However, I don't think the Lockean fruits of labor argument works for you. Your position seems more about people deserving to have more fruit, as opposed to deserving whatever fruit people can make.

Re:Crazy Statist Talk (1)

micheas (231635) | more than 4 years ago | (#31257050)

The reality of the artist scene is that Van Goughs works were used to patch leaky hay carts (or at least one hay cart) during his lifetime. The value of artistic works is extremely volatile and varies with the whims of fashion. Many successful artists have spent time below the poverty line, while practicing their trade.

Most artists suffer the same fate, until they become known in popular culture. It is possible, that if Disney were to use your work without compensation beyond credit, you would be in a financially better off in a year than if that did not happen. Someone with a hit is in much more demand than someone that is merely talented, due to most people's inability to judge artistic talent. There is always going to be anecdotes about how person X in situation Y did better under copyright law M. The question is what is the best compromise, and it pretty clear that a lot of people feel that the current copyright system is not in their best interests.

I don't see copyright, as it is currently implemented, helping the majority of people that try and survive off of their artistic endeavors. I suspect that a more limited copyright that is more in the spirit of academic papers, with attributing your sources, might work better for the general public and the majority of artists. Creative Commons licenses are popular for a reason, and maybe copyright should move in that direction.

Re:Crazy Statist Talk (1)

JNSL (1472357) | more than 4 years ago | (#31264170)

You entirely sidestepped my question. Should copyright be used to hold up authors of works people do not determine to be valuable?

As far as Creative Commons licenses go, do you understand that CC has no power without copyright? That the license only works because copyright provides exclusive rights to authors, and it is these rights that the CC licenses out to others? So "moving in that direction" makes no sense.

Re:Crazy Statist Talk (0)

Anonymous Coward | more than 3 years ago | (#31229062)

Also note that one of the main goals in my mind should be to make it more clear who holds copyright and how to contact them. When we buy a house, we have to pay for tax, deed, etc, but we aren't paying the state for our right to own property, we're paying for the state to have the ability to enforce our right to own that property in particular and to enforce the management or transfer of said right. I think it would benefit all if copyright worked the same way, with copyright holders paying a statutory licensing fee which would pay for a paper notification that copyright is to expire, accurate record-keeping of who owns copyright to which works, etc. That way, if someone wanted to make a movie of Snow Crash, that person would simply have to consult the Copyright Register, call the copyright holder (Stephenson) and request permission, negotiate fees, etc. Works would then pass in to the public domain by a) request of the copyright holder, b) failure to license the copyright, during the lapse of licensure, or c) not providing accurate contact information to the register, during the period the information is incorrect. I've heard a lot of arguments around intellectual property and I would say I'm more on the expire-sooner camp, but I think this idea (the statutory fee, renewable right) is the very least that should be the case. It seems like supporters of strict IP laws want all of the rights of property ownership with none of the responsibilities.

Re:Crazy Statist Talk (1)

cpt kangarooski (3773) | more than 4 years ago | (#31240690)

Take Slashdot hivemind favorite Neal Stephenson. Are you trying to tell me that I -- or better yet, some e-e-e-e-vil Hollywood studio -- should be able to make a movie today from his "Snowcrash" -- same title, characters, lift the dialogue, whole nine yards -- and not pay Stephenson a dime? Is that what you are proposing? Seriously?

Well, he published it in 1992. Rufus Pollock wrote a pretty good paper on how to determine copyright terms a few years ago, and after running through the numbers, he estimated that a term of 15 years would produce the best results. Assuming he's right, then the public would benefit from Stephenson being able to stop the 4-e's evil studio in 1992. And as late as 2007. And come 2008, then yes, the public would start to benefit more from as many studios making Snow Crash movies, tv series, ballets, etc. as they liked, then allowing Stephenson to keep sitting on it.

Remember, the public benefits not only from having the underlying work created and published, but from having all of the derivative works created and published. I for one would like to see a Snow Crash movie. Stephenson, apparently, is not so interested, or you'd think we would've had something by now. We want the copyright term to be long enough to get the underlying work created, and short enough that it doesn't last one second longer than it absolutely has to, so that unauthorized derivatives can get created.

This also might further encourage Stephenson to pursue film adaptations in a more timely manner. Zodiac at least, right?

Re:OMG (2, Interesting)

blarkon (1712194) | more than 4 years ago | (#31227928)

Given that 800 new books are published *every day* - it is fair to say that copyright does entice people to produce. The "there is not such thing as imaginary property" crowd haven't come anywhere near proving that a system without copyright would generate anywhere near this amount of new content (which, because of copyright, isn't just rehashes and remixes of existing copyrighted material). Is dismantling a system that entices authors in English speaking countries to publish 800 new books *every day* worth risking so that less-than-original works based on existing concepts can exist?

Re:OMG (1)

micheas (231635) | more than 3 years ago | (#31228378)

Given that 800 new books are published *every day* - it is fair to say that copyright does entice people to produce.

The "there is not such thing as imaginary property" crowd haven't come anywhere near proving that a system without copyright would generate anywhere near this amount of new content (which, because of copyright, isn't just rehashes and remixes of existing copyrighted material).

Is dismantling a system that entices authors in English speaking countries to publish 800 new books *every day* worth risking so that less-than-original works based on existing concepts can exist?

A good question, but considering how infrequently it is made by advocates of copyright extension, I don't believe that much over 40 years is justifiable under any model.

I would also point out that a percentage of those 800 books are not based on original content but content that is old enough to be used without credit, compendiums of Shakespeare and Dickens and derivative works of those authors among others make up a large portion of our literature, so your case is over stated, but the question is do we have more new works, or do we have cultural stagnation as the 800 books a day are prone to build off of older works?

Should J.K Rowling have had to pay a royalty to the Egyptian consulate for using a Sphinx in Harry Potter?

Ironically, the people that suffer the most from cultural stagnation are the vary ones arguing for longer copyrights.

Re:OMG (2, Insightful)

dwandy (907337) | more than 3 years ago | (#31231546)

Given that 800 new books are published *every day* ...

...you still have nothing to substantiate the claim that copyright entices people to produce. I stipulate with equal authority that the fact that there are only 800 new books and not 1000 new books makes it fair to say that copyright does not work.

The "there is not such thing as imaginary property" crowd haven't come anywhere near proving that a system without copyright would generate anywhere near this amount of new content

It is obviously difficult to prove what a system without copyright would produce as there are few areas where some form of intellectual monopoly has not been implemented by the incumbents. The fashion industry is one example where we can see that a complete lack of ability to prohibit others from copying you causes significant innovation and creativity. That the big fashion producers are looking for protection now is quite telling: It has nothing to do with giving incentives to create, but everything to do with monopoly profits.

It is of course not for us (who believe the system causes more harm than good) to prove that it works: the onus is on you to prove that it works as you are in favor of restricting everyone's physical property rights for imaginary ones.

One simple question to ask is for you to provide a single Monopoly that has given us more choice, better products and lower prices than competition? Former monopolies like the TelCo's of course provided the best, most varied and least expensive handsets when they had a lock on providing these handsets, right?

isn't just rehashes and remixes of existing copyrighted material

...and this is just foolishly naive. All works are built on those that came before. No author, no musician, no artist, no creator has generated their works in a vacuum. Authors read, musicians listen to music. All work is derivative. The majority (if not all) plots in modern books can be found in Shakespeare. Musical styles can be traced quite easily going back decades for modern music and for many melodies or themes going back centuries. That Disney "stole" Steamboat Willy from the public domain and now refuses to let Willy (aka: Mickey) back into the public domain demonstrates the true motives. Had we had the current copyright law in the 1800s, Dracula would not be in the public domain and we wouldn't have any of the thousands (hundreds of thousands?) of vampire movies, books, TV shows, music, paintings, jewelry etc. They would all be derivative works and most likely never have been created. Intellectual monopolies (both patent and copyright) cause holes in innovation and creativity that remain untapped: few people are going to create in a space where someone else can (at any time later) tell you that they own your creation as well.

Obviously having a way to reward creators is a good thing: we all need to eat. But there is a pile of negatives that come along with copyright and I can't agree that it is in any way obvious that granting a monopoly is ever good economic policy.

Progress is made at the speed of information. It is ironic that when information moved by foot or boat we had less artificial restrictions than now when information can move around the globe at the speed of the internet.

Re:OMG (1)

cpt kangarooski (3773) | more than 4 years ago | (#31241184)

Given that 800 new books are published *every day* - it is fair to say that copyright does entice people to produce.

No it isn't. You haven't shown that those books would not be published, but for copyright.

For example, if literacy rates dropped significantly (IIRC the literacy rate in England was around 30% in Shakespeare's day), fewer books might be published due to a lack of audience. If books could only be published on a Gutenberg-style press, using laboriously hand-set type, and requiring manual labor to fold the signatures into pages, to collate the signatures into the proper order in the book, to sew the signatures into a binding (itself hand-made), to cut the signatures so that the book can be opened, fewer books might be published due to the cost of printing them. If inks, paper, and binding materials were not made by machines on an industrial level, and to consistent levels of quality, the high cost of materials (due to the labor and skill to make them) might similarly result in fewer books being published. If we did not have bright gas or electric lights, the audience for books would diminish, because it would be impractical to read them at night (reading by the light of a fireplace sucks -- try it). If our society hadn't industrialized, so that people had spare time in which to read, and if our society hadn't liberalized, so that people could write, sell, and read whatever books they chose, the number of books would likewise diminish. Then there's medicines to keep authors and readers alive, glasses to allow people to keep reading as their vision goes, motorized vehicles of all sorts to carry books to be distributed, pens that can write for more than a brief amount without needing replacement (quill pens suck tremendously), etc.

There are, frankly, a lot of differences between when copyright did not exist, and today, which have had tremendous influences on the number of books that are created and published. Quite frankly, copyright is probably far from the most important of them. Does copyright entice (I would say incentivize) people to create and publish works? Sure. But it isn't nearly so much of an incentive as you imagine. It absolutely isn't the difference between 8 books a day and 800. But get rid of electricity, and then you'd see a big decline.

this amount of new content (which, because of copyright, isn't just rehashes and remixes of existing copyrighted material).

Content is content. Copyright doesn't care. Indeed, it mustn't care.

It is totally inappropriate for the government to grant or withhold copyrights on the basis of artistic merit, which not only subjective, but something that the government just isn't competent to judge. There are plenty of original works which are complete crap (e.g. Gigli), and plenty of derivative works which are better than their predecessors (e.g. Shakespeare's Romeo and Juliet, an unauthorized adaptation of earlier works). Perhaps I'm old fashioned, but I'd rather have Shakespeare (a brazen rehasher and remixer with few original ideas) than be stuck with the not-so-good materials he was ripping off left and right. And of course, copyright is granted to original and derivative works alike today. Are you suggesting dismantling that part of it?

Is dismantling a system that entices authors in English speaking countries to publish 800 new books *every day* worth risking so that less-than-original works based on existing concepts can exist?

If it gets us even as few as 801 new books every day, then yes. In fact, I'd say it would be imperative.

But we needn't go so far. We can massively reduce copyright without massively reducing its incentivizing effect (the incentive isn't distributed evenly -- works lose value very rapidly, which is why you don't subscribe to month-old newspapers, or pay full price at the theater to see a movie that's on broadcast tv the same day), resulting in both of us being happy.

Besides, works aren't as original and non-pre-existing as you seem to think.

Re:OMG (0)

Anonymous Coward | more than 4 years ago | (#31227802)

I believe that Copyright exists to provide a person with the legal right of control over works which they own (and recourse should their control be usurped) up to a reasonable point, when the ownership is transferred to the state.

This is incorrect. Ownership does not pass to the state, it is dissolved. Public domain is not state ownership. It is not, for example, like a park which may be used by all but is under that governments control. It is more akin to air or sunlight.

Re:OMG (1)

AndersOSU (873247) | more than 3 years ago | (#31229996)

The real trick is how you declare something "abandoned."

There are probably very few works which, if you tried hard enough, you would be unable to find the rights owner. However, no one is going to try hard enough for the 150million odd works who's ownership is unclear, this is one of the few situations where a law firm wouldn't be able to provide you all the billable hours you needed.

Re:OMG (1)

DragonWriter (970822) | more than 3 years ago | (#31237138)

The fastest way to get as much into the Public Domain as soon as possible is to abandon copyright

That's only clearly true in very short run as a one time event; GP seems to think that the purpose of copyright is to encourage the greatest long-term rate of new material entering the public domain (which, clearly, given the trend of extensions so that nothing ever enters the public domain, isn't the purpose behind present copyright policy, and also isn't the express Constitutional purpose of copyright in the US, though it might be argued as a desirable mechanism of acheiving the Constitutional purpose.)

Re:OMG (1)

DragonWriter (970822) | more than 3 years ago | (#31236998)

Copyright exists to get as much into the Public Domain as soon as possible.

That may be your opinion of what copyright should do, but the Constitutional purpose of copyright (and patent) protection is "To promote the Progress of Science and useful Arts". Getting the most into the public domain the fastest may or may not be the best way of doing that.

Abandonware, whether software or books, should immediately enter the Public Domain.

I'd certainly agree that something like that is generally desirable.

I have no idea how to accomplish that fairly

One idea I've always favored is to have a short "free" copyright period, and then afterward allow periodic renewals (requiring registration) which would involve a declared value and an ad valorem tax on the declared value, with a minimum declared value. If you aren't willing to pay the minimum tax, the work goes into the public domain. If you do pay the tax, anyone or any group of people can tender the declared value and buy the work -- not for themselves, but buy it into the public domain.

Re:OMG (2, Informative)

cpt kangarooski (3773) | more than 4 years ago | (#31241356)

"To promote the Progress of Science and useful Arts". Getting the most into the public domain the fastest may or may not be the best way of doing that.

Well, just science, actually, which meant knowledge, back in the late 18th century when they wrote the Constitution. The useful arts are what patents are supposed to promote. (We have more vestiges of art meaning a technical skill: prior art, state of the art technology, a person having ordinary skill in the art, etc.)

Anyway, as it happens, getting the most into the public domain the fastest is basically exactly the best way to promote the progress of science. Consider a utopia of knowledge: Everyone who can create works, and is willing to create works, does so. These works may be instantly published to everyone else in the world, who may choose to enjoy or ignore those works as they see fit. Everyone has a universal library, containing all known published works. If one person enjoys a work, he might make some copies at trivial cost in order to give them to other people he knows who, he thinks, would also enjoy it. If an old work is discovered in some ancient ruin, copies are made and made available to everyone, so that the work is no longer rare, and no longer in danger of being destroyed and lost forever. If someone wants to create a work, they can do so, whether that work is original or derivative of something else; the creative impulse is never squashed or dismissed. Works might not all be good -- in fact, most will be lousy -- but that's true of anything.

That's the ideal world: One where public knowledge is preserved and made available to everyone for every purpose and at the least or zero cost. The reason we can't really have that is because we don't have the resources to afford it. Not everyone who wants to act can spend all their time at it without concern for basic necessities. Because our resources are limited, we don't get so many works created if authors can't make money derived from those works.

Now, sometimes they can -- Shakespeare had no copyrights as we know them, but became reasonably successful financially because he got a share of the box office from his own theater company, and invested wisely. He didn't get money from other actors staging his plays, but neither did he have to pay the people he copied from when he wrote them, nor pay other playwrights when he staged their plays. And, closer to home, I used to be a professional artist, and I made a comfortable living, but that was by selling my labor (which I still do, now that I'm a lawyer). Neither I, nor any of my clients, made money based on copyrights, and a total lack of copyrights would not have made us a penny poorer. Most fine artists don't rely on copyright to make a living, not that most artists of any sort make a living from their art anyway, even with copyrights.

So if works are most valuable to the public, and most promote the progress of knowledge if they are in the public domain -- free to acquire, share with others, base more works upon, etc. -- but we might be able to increase the number of works generally by granting copyrights -- making authorship more attractive financially, though other incentives exist independently of copyright -- then surely we only want to grant copyrights for as short a period as possible, with as few restrictions as possible, in order to get the most works in the public domain the fastest.

No copyright would get works in faster, but there'd be fewer of them. More than the ideal amount of copyright would not result in as many works (the financial incentive only goes so far, is iffy to begin with, and can result in authors engaging in anti-competitive behavior against one another, rather than compete fairly), and less freedom and utility for the public.

Still, if you have an idea that would result in a greater net public benefit than copyright could ever deliver -- the current system is a bad implementation, however -- feel free to tell us about it.

Re:OMG (1)

DragonWriter (970822) | more than 4 years ago | (#31250720)

Anyway, as it happens, getting the most into the public domain the fastest is basically exactly the best way to promote the progress of science. Consider a utopia of knowledge: Everyone who can create works, and is willing to create works, does so.

Sure, if you presume perfect altruism on the part of creators, getting everything immediately into the public domain is obviously ideal. When you start dealing with trying to get the best practical results in promoting progress in the real world, when the creators are real people, that's when you get into the balancing act between incentive to create and freedom to use. The Constitution permits exclusive rights because its designed to deal with the real world and real creators, not a utopia with perfectly altruistic creators.

Settlement? (0)

TubeSteak (669689) | more than 4 years ago | (#31226392)

Why doesn't Congress act and moot these proceedings?

Re:Settlement? (0, Offtopic)

Colz Grigor (126123) | more than 4 years ago | (#31226416)

Because they're busy not doing other things.

Re:Settlement? (0, Offtopic)

Cryacin (657549) | more than 4 years ago | (#31226462)

Exactly. And busy getting paid for it, just like farmers get paid not to grow crops. :)

The system works.

Because... (0)

Anonymous Coward | more than 4 years ago | (#31226742)

...they didn't get their cut.

Re:Settlement? (1)

DragonWriter (970822) | more than 3 years ago | (#31237472)

Why doesn't Congress act and moot these proceedings?

Because that would involve taking responsibility for a result that is going to anger lots of people (whatever form it takes) when someone else (the courts) is already on the hook for it.

copying grants the right to profit from other's IP (5, Interesting)

Anonymous Coward | more than 4 years ago | (#31226626)

Google's position is that other people's property can be sold to the public by a third party without permission from the owner or creator as long as the seller has copied it. The action of copying a work then confers the right to sell or distribute, with the controlling legal test being the convenience of some user.

The opt-out takings clause pretends a nonexistant practical protection for the original owners, which becomes impossible when the courts later invalidate google's claim to monopoly rights, rights which fly in the face of equal application of the law.

Since copying, rather than creation or contract, provides a very weak claim for the seisure of monopoly rights to property, the courts will necessarily, over time, invalidate the monopoly claim, leaving the principle that copying confers distribution rights to intellectual property, as long the distribution is convenient to the public, defined as any user except the author or owner.

There is no strong reason that such a legal principle, once established in law, cannot be extended to other kinds of digital property, such as medical, financial, and legal records, given their obvious value in the marketplace to users who are well endowed to fund both legislative and court based extensions. The action necessary to obtain such rights is, according to google, copying, a convenient test for the internet age.

Remember, your privacy is not a contract, it is just a policy, subject to revocation at any time.

Re:copying grants the right to profit from other's (0)

Anonymous Coward | more than 4 years ago | (#31226810)

Google's position is that other people's property can be sold to the public by a third party without permission from the owner or creator as long as the seller has copied it. The action of copying a work then confers the right to sell or distribute, with the controlling legal test being the convenience of some user.

Sounds great. Applies to music and movies as well? So there is no such thing as copyright anymore?

Re:copying grants the right to profit from other's (5, Informative)

Colz Grigor (126123) | more than 4 years ago | (#31226836)

That's a gross misrepresentation of Google's position, which is significantly complicated such that it can't be easily distilled into two sentences.. Here's a more adequate summary of my interpretation of Google's position:

Other people's properties can be digitally distributed. When a property owner can be identified, that owner has the right to set a price for sale or opt their property out of further distribution. When a property owner cannot be identified, proceeds will be collected for each sale, and that amount less administrative costs for the distribution are held by a third party until such time as the actual property owner stakes their claim on their property. At that time, the property owner can gain the same rights over distribution of their property as anyone else who has been identified as a property owner, and all parties who make use of the unidentified property owner clearing house will be obligated to abide by the property owner's decisions.

Monopoly power doesn't exist, because any property owner may opt to use any other distribution channel for their property, and all property that is being copied and distributed by Google can also be copied and distributed by any other party who desires to take the effort to scan the original work and transmit proceeds to the third party property owner clearing house for any property which they haven't explicitly gained the right to distribute.

You're correct that this principle can be applied to any other media. I see no reason why it shouldn't.

Re:copying grants the right to profit from other's (0)

Anonymous Coward | more than 4 years ago | (#31226892)

Sweet, well in that cast I'm going to go sell some music that the RIAA has rights to. But it's alright, because I'm giving them permission to not sell it, they just have to opt-out. I mean, the RIAA never told me they DIDN'T want me to sell music and make a profit off of something they have a claim to.

Re:copying grants the right to profit from other's (2, Interesting)

Kjella (173770) | more than 4 years ago | (#31226960)

But who sets the proceeds? Can a non-profit like Project Gutenberg assume that the copyright holder is making no proceeds today, so not generating any proceeds themselves is also okay? If so, then essentially they could start indexing all works in copyright or not and only halt when so ordered. That'd go a long way to limit copyright...

Re:copying grants the right to profit from other's (1)

Zerth (26112) | more than 3 years ago | (#31229044)

The same entities that force songwriters to license their songs for a set amount or force musicians to allow radio stations to play songs without negotiating individually.

Look up "mechanical licenses".

Re:copying grants the right to profit from other's (1)

Colz Grigor (126123) | more than 3 years ago | (#31229812)

That's a great question, and I suspect that the answer to this is buried somewhere in all the court paperwork. Call me lazy: I RTFA, but I didn't real all of the court documentation...

Here are some ways that it _could_ work fairly:
1.) An amount set by the clearinghouse. The clearinghouse would act on behalf of (and in the interest of) the owner and set the price.
2.) An amount set by congress.
3.) An amount determined by a long-term auction (determining how much buyers are willing to pay) by the seller.
4.) An amount determined by a long-term auction by the clearinghouse.

In the case of orphaned works, so long as "due diligence" to collect fair proceeds for the sale of the work has occurred, I'm not actually worried that the owner of the work doesn't eventually collect what they actually wanted. Chances are, the money they receive will be more than they would have received otherwise. Plus, once they register as the work's owner, they can begin to set their own price.

Re:copying grants the right to profit from other's (1)

dreampod (1093343) | more than 4 years ago | (#31227450)

While the idea that 'orphan' books could be made available to the public is very pleasent and downright helpful to scholars, the Opt-Out position Google has taken is fundamentally at odds with the copyright system. US Copyright law does not distinguish the protections it offers to properties based on their commercialization or availabilty and the 1978 changes to the copyright act extending protections to unpublished works clearly indicates that inaction does not negate the protections offered. If the US Congress and Senate wanted to make changes that would allow works that are not being made available to enter public domain or be 'adopted' by non-owners they certainly could and it would even be in line with the original spirit of the copyright (unlike the majority of copyright laws passed since 1909).

Opt-In will certainly result in less books being available and more effort on Google's part but is the only approach that is fundamentally compatible with the law. As any Slashdotter knows once something is digitized and available on the internet, it is virtually impossible to remove it should the public have even the slightest interest in it. How then can the property owner 'reclaim' their rights and remove it from distribution? An author or publisher has a right to control the availability of their works and money collected can not act as sufficient remedy, nor can legal action be pursued against Google as they have been relieved of any ongoing liability for their acts in this regard.

If this is allowed to go forward it creates a precedent that if you make even the vaguest effort to contact the original owner of a work, you may go ahead and publish (and profit) from it provided that you set aside a portion of those profits for the owner should they ever claim it. This could be anything from music, to your child's artwork, to that naughty sextape you made in college.

Re:copying grants the right to profit from other's (1)

sh00z (206503) | more than 3 years ago | (#31229196)

You are fundamentally correct, but I feel the need to make one comment. the settlement would actually lead to the following:

If this is allowed to go forward it creates a precedent that if Google make even the vaguest effort to contact the original owner of a work, Google may go ahead and publish (and profit) from it provided that Google set aside a portion of those profits for the owner should they ever claim it. This could be anything from music, to your child's artwork, to that naughty sextape you made in college.

If you wanted to do this, you would have to follow the same steps as Google: infringe, get sued, argue for a settlement permitting the infringement.

Re:copying grants the right to profit from other's (1)

oshkrozz (1051896) | more than 4 years ago | (#31227784)

"You're correct that this principle can be applied to any other media. I see no reason why it shouldn't." Amazingly enough it is .... a company (monopoly) set up with exclusive rights to collect money for any works on behalf of the copyright owners where the owners must register to receive their pay and at the same time absolves the distributor for figuring out who has the copyright. This company in the USA is called ... ah yes our friend soundexchange (Some posts a while ago were rather mean spirited towards them) but the precedent for this kind of entity has already been set. They are not required to find the copyright holders, just hold on to the money and the copyright holder has to come to them.

Re:copying grants the right to profit from other's (1)

DerekLyons (302214) | more than 3 years ago | (#31231508)

That's a gross misrepresentation of Google's position, which is significantly complicated such that it can't be easily distilled into two sentences.

Actually, it can be trivially reduced to two sentences - which the OP brilliantly did.
 

Here's a more adequate summary of my interpretation of Google's position:

Except you didn't summarize Google's position - you took the bitter core (Google wants to use other peoples content without going to the (currently) legally required trouble to obtain permission), and then heaped high fructose corn syrup and spin (Google will pay you for their thievery if you notice it has occurred*) on top.
 
It's the bitter core that people are objecting to, that Google seeks the right to violate black letter law at will. No amount of sugar or spin can make this palatable.
 

Monopoly power doesn't exist, because any property owner may opt to use any other distribution channel for their property, and all property that is being copied and distributed by Google can also be copied and distributed by any other party who desires to take the effort to scan the original work and transmit proceeds to the third party property owner clearing house for any property which they haven't explicitly gained the right to distribute.

In other words, Google magnanimously will allow other people the right to violate black letter law as well, fully knowing that saying "any other party can scan/digitize/distribute if they want to" is tantamount to saying "any can write an OS who cares to". Not to mention that we still find the same bitter core under that sugar.
 

You're correct that this principle can be applied to any other media. I see no reason why it shouldn't.

I think you grossly misunderstood the OP. He's pointing out that once one right currently enshrined in black letter law is overridden because it is inconvenient for Google to obey the law, then potentially other rights will similarly follow. Imagine Microsoft, or Bank of America, or Wal Mart finding protecting your rights inconvenient and, using the Google settlement as precedent, obtaining a ruling that they no longer need to follow laws inconvenient to them. There's potentially a great deal at stake here - and supporting Google because they dress in sheep's clothing is a grave mistake.

* This alone is a perversion of established legal principles - where I am not required to be aware of the thievery for the thief to liable for the theft.

Re:copying grants the right to profit from other's (0)

Anonymous Coward | more than 4 years ago | (#31241730)

"Taking the effort to scan" the original work is not the legal test google proposes, copying the original work is (whatever the technical manner.) The *effort and expense* meme is a public relations argument, rather than a legal one, an effort at distraction from and legitimization of, the core issue of obtaining rights by copying. There is no "expense to obtain a copy" test, nor does an opt-out mechanism provide any guarantee of sufficient search for creators, owners, or heirs, especially since minimizing cost over a vast property grab is the business model being employed.

Re:copying grants the right to profit from other's (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31226962)

[quote]Google's position[/quote]
My position is with cock n balls in your mouth.

Crowdsourcing? (1)

SEWilco (27983) | more than 4 years ago | (#31226722)

Can it be crowdsourcing when you bring your own crowd?

Overflow Post (0)

Ihmhi (1206036) | more than 4 years ago | (#31226736)

I didn't make it to the courtoom on time.

Overflow Post (0)

Ihmhi (1206036) | more than 4 years ago | (#31226744)

I didn't make it to the courtroom on time.

Re:Overflow Post (0)

Anonymous Coward | more than 4 years ago | (#31226786)

I didn't make it to the courtroom on time.

(I didn't copy your post, I'm just making more copies availble for everyone)

hey guys! (-1, Troll)

Anonymous Coward | more than 4 years ago | (#31226782)

anyone want to taste my sperm?

Internet Archive (4, Insightful)

plasticsquirrel (637166) | more than 4 years ago | (#31226788)

It was great to read that the Internet Archive had what was viewed as the best and most cohesive argument. However, I think they are playing a weak card by not arguing for turning the works into the public domain. In the end, these books on Google's servers are not really free, they are only free for Google to keep, and for you to look at behind glass. If they were actually turned over into the public domain, then everyone could use them and benefit. They could be hosted at the Internet Archive, or on Project Gutenberg in various formats available to everyone. This is what I would really like, not just freedom for one company to profit from a special privilege.

Re:Internet Archive (1)

bugnuts (94678) | more than 4 years ago | (#31226828)

What? You think author's scanned book should have their copyright expired in scanned form?

You can't just randomly decide someone's work is now public domain. That is even worse than what google is trying to do.

Re:Internet Archive (3, Interesting)

plasticsquirrel (637166) | more than 4 years ago | (#31227500)

Why not? Books automatically have their copyrights expire after a certain period. Why shouldn't unclaimed orphaned books become part of the public domain? For example, if a book is unclaimed and has been orphaned for five years, it should be in the public domain. This would be beneficial to everyone, giving the authors some fame and prestige, giving us some rare books otherwise unavailable, and not hurting any publishers who aren't making money from them anyways. It would be good for all of society.

The Google settlement is only good for Google, and those who don't mind asking Google if they can read books through a glass window. After all, Google will not allow anyone to download these books. Their job is to hoard information, and to make it available in a way that is convenient enough for individuals, but inconvenient enough that no one could download the data and compete with them. Lazy people think it's okay because it's better than the scraps we have otherwise, but giving one company control of these books is not a solution.

Re:Internet Archive (1)

cpt kangarooski (3773) | more than 4 years ago | (#31240246)

Indeed. We used to have a system for this: works automatically entered the public domain if they were published without being registered, and the copyright term expired fairly quickly, requiring the author to file a renewal in order to get an additional copyright term. Most authors who created and published works did so without ever bothering to get copyrights; of those who did register, most didn't bother to renew.

Apparently, there are a lot of authors who don't care about getting copyrights, or who care enough to get them but not keep them. That's fine with me. We should reserve copyright for authors who won't create and publish works without it, and then only for the minimum time necessary. The best way I know of that we can do so is to require these authors to identify themselves by registering for copyrights, and to frequently renew those registrations.

I agree that this thing with Google isn't ideal, but I suppose it's better than the status quo, and perhaps we might even get lucky enough that it will encourage meaningful reforms to be made that lead to better results for the public generally.

Why can Google copy books they didn't buy? (5, Interesting)

ortholattice (175065) | more than 4 years ago | (#31227266)

Here is what I am confused about. The controversy seems to be about whether Google has the right to display excerpts from books they've copied, without permission from the copyright holder.

However, I haven't seen anyone question the fact that Google has already copied millions of entire books that they didn't purchase and don't physically own. When did this become legal, and why can't I do the same (or can I)?

Google has presumably saved $100s of millions by not having to purchase the books they are scanning, like ordinary people (in the U.S.) are expected to. (And I get the sense that ordinary people may even be taking a legal risk by scanning books they do own, because then they won't have to buy the ebook version.) What makes Google special in this regard? Why aren't they subject to a $200,000 per book (or even per chapter, if based on the RIAA model) copyright violation suit?

I have an interest in this, because I am collecting PDFs of my own library (which I have purchased and physically own). Yet it seems that I may be skirting the law, particularly if I download the PDFs from piratebay etc., risking a possible huge infringement suit.

Actually, I would pay a reasonable price for a clean, unsecured PDF of better quality and smaller file size than what I can download or scan myself, for my permanent electronic library, but publishers have chosen not to offer this. But I will never buy a DRMed ebook that in I can't read on any device I want, that will stop working when the approved reader dies or the company changes its mind or goes out of business. Just like a my physical library of fine books, I want a permanent electronic library of high-quality PDFs.

Re:Why can Google copy books they didn't buy? (2, Insightful)

Isaac-1 (233099) | more than 4 years ago | (#31227570)

The answer is simple, the AA's, etc. don't want to challenge the modern interpretation of copyright laws that were written a couple of centuries ago. As this modern interpretation is one they have helped shape by going after only people with shallow pockets, mainly over the last half century as duplication technologies has emerged. Before then copyright was about keeping one publisher from stealing another publishers work.

Re:Why can Google copy books they didn't buy? (2, Interesting)

QuantumG (50515) | more than 4 years ago | (#31227740)

However, I haven't seen anyone question the fact that Google has already copied millions of entire books that they didn't purchase and don't physically own. When did this become legal, and why can't I do the same (or can I)?

It didn't and that's why there's a class action lawsuit against Google... the problem is, the class and Google have already come to an agreement, but they need permission from the state to enact the settlement. See, the way class action lawsuits work is, if you show up a year after the lawsuit is settled you can say "hey, I want a piece of that!" and they'll give you some, assuming you can prove you're a member of the class. What you can't do is say "hey, I don't agree with that!" cause the case has already been settled. As such, the state has a responsibility to make sure the settlement is fair for those slack members of the class who haven't bothered to turn up to court yet.

Re:Why can Google copy books they didn't buy? (0)

Anonymous Coward | more than 3 years ago | (#31228138)

> As such, the state has a responsibility to make sure the settlement is fair for those slack members of the class who haven't bothered to turn up to court yet. ...and in this case, to protect members of the class that don't exist yet. Another in the long list of precedent-setting aspects of this case is that the settlement for a past bad action (Google's wholesale copying of others' copyrighted works) is being applied to future members of the class, and indemnifying Google against future transgressions. Let's say it again: as part of Google admitting that what they did is wrong, they get a free pass to do it forever in the future. How messed up is that.

In addition, nobody else can follow in their footsteps and compete with Google in this new space unless they also wholesale infringe others' copyrights, convince someone to file a class action lawsuit, get it certified, then manage to cut a magic deal with the class's lawyers to give them a free pass on future lawbreaking.

Re:Why can Google copy books they didn't buy? (1)

AndersOSU (873247) | more than 3 years ago | (#31230202)

yeah this is the real sticking point.

I'd like to see the judge mandate that google can scan whatever they want, but they can't hold exclusive license to them - but if google maintains exclusive control and a copyright owner later asserts his rights, as he has a right to do, google can first, pay him, and second, stop distributing his content. If google has non-exclusive rights, you can't ever put that cat back in the bag.

Re:Why can Google copy books they didn't buy? (0)

Anonymous Coward | more than 4 years ago | (#31241380)

> As such, the state has a responsibility to make sure the settlement is fair for those slack members of the class who haven't bothered to turn up to court yet. ...and in this case, to protect members of the class that don't exist yet.

Only if you have a time machine. Books published after January 5, 2009 are not included in the Amended Settlement [googlebooksettlement.com] .

Another in the long list of precedent-setting aspects of this case is that the settlement for a past bad action (Google's wholesale copying of others' copyrighted works) is being applied to future members of the class, and indemnifying Google against future transgressions. Let's say it again: as part of Google admitting that what they did is wrong, they get a free pass to do it forever in the future. How messed up is that.

Strange conclusions can come about when you start from an incorrect premise that this applies to future books.

In addition, nobody else can follow in their footsteps and compete with Google in this new space unless they also wholesale infringe others' copyrights, convince someone to file a class action lawsuit, get it certified, then manage to cut a magic deal with the class's lawyers to give them a free pass on future lawbreaking.

Except they set up a non-exclusive registry: Rights granted to Google and the Participating Libraries are non-exclusive only, and Rightsholders have every right to authorize, through the Registry or otherwise, any individual or entity, including direct competitors of Google, to use their works in any way, including ways identical to Google’s and the Participating Libraries’ authorized uses [googlebooksettlement.com] .

If you want to spread FUD, please try a little harder. There is still stuff not to like in the settlement, but it's not the easily disproved stuff you bring up.

Re:Why can Google copy books they didn't buy? (1)

DerekLyons (302214) | more than 3 years ago | (#31231682)

the problem is, the class and Google have already come to an agreement, but they need permission from the state to enact the settlement

Actually, there are two problems on top of that: It's not clear that those representing the class have the legal standing to do so, and the settlement violates black letter law.
 

As such, the state has a responsibility to make sure the settlement is fair for those slack members of the class who haven't bothered to turn up to court yet.

The state also has to ensure the settlement follows the law - which is precisely what the current hearings are about. The current settlement not only fails that test, but provides Google with the special privilege of being exempt from the law.

Re:Why can Google copy books they didn't buy? (1)

TheRaven64 (641858) | more than 4 years ago | (#31227744)

Why aren't they subject to a $200,000 per book (or even per chapter, if based on the RIAA model) copyright violation suit

They should be. There is no legal reason why they are not, other than the fact that their sock puppet, the Writers' Guild, allowed a settlement for a tiny fraction of this amount in a class-action lawsuit. This leaves Google with a massive competitive advantage. Anyone else who tries to enter the same market has to risk the $200,000 fine per work for wilful commercial infringement. There's no incentive for the guild to offer a favourable settlement to anyone else.

I have an interest in this, because I am collecting PDFs of my own library (which I have purchased and physically own). Yet it seems that I may be skirting the law

Depending on where you live, this may or may not be illegal. I doubt, however, that any publisher or author would bother suing someone for downloading copies of the books that they own.

Actually, I would pay a reasonable price for a clean, unsecured PDF of better quality and smaller file size than what I can download or scan myself, for my permanent electronic library, but publishers have chosen not to offer this

Depends on the publisher. Mine offers DRM-free PDFs and so do a few others.

why does google have a competitive advantage? (1)

circletimessquare (444983) | more than 4 years ago | (#31227886)

because they have deep pockets to skirt a broken legal status quo

in other words, everyone should be able to do what google does, but only google does it, not as an abuse of their financial power, but because their financial power puts them beyond the abuse of our broken intellectual property laws

google is not the problem. our antiquated intellectual property laws are

Re:Why can Google copy books they didn't buy? (2, Insightful)

cduffy (652) | more than 4 years ago | (#31227782)

This is about scanning library books, not collecting PDFs -- but if this settlement passes, you'll be able to do the same thing as Google.

However, doing the same thing as Google will require that you collect revenues for any purchases of these scans (and remit them to the copyright holders should they be identified), and recognize and exclude any commercially available books, and likewise obey a huge number of other restrictions and limitations.

I'm not convinced of the legality of this settlement -- but it's outstanding public policy, and so I hope that the legality gets worked out (through act of Congress if need be, though that seems unlikely in the near future).

Re:Why can Google copy books they didn't buy? (1)

AndersOSU (873247) | more than 3 years ago | (#31230154)

Google can't legally do what they've done, which is why we're talking about whether or not the settlement is fair. The difference between you and google is that google was willing to dare the rights-holders to sue them so they could work something out. You don't have the balls or the wallet.

fghfgh (-1, Offtopic)

dsfgdsgw (1749962) | more than 4 years ago | (#31227346)

Be registered and win a prize!!! >>> youcan-getme. blogspot. com

How does this apply to gray copyright issues (1)

Isaac-1 (233099) | more than 4 years ago | (#31227534)

I know of a situation where there has been a great demand for reprints of old (about 50 years worth) of a certain hobbyist compilation book series. The original publisher is still in business and publish a hobbyist magazine in this field, after many years of demand the publisher continue to assert that the original contracts (and therefore copyright law) with the numerous contributors to the book do not allow them to reissue the work even if they wanted to. Would anyone of the hundreds if not thousands of contributors have the right to stop the publication of these google copies? Would the "publisher" acting under the contract with the contributors? Which leads back to this reprint issue that has been going on for over 20 years, who owns it anyway?

Re:How does this apply to gray copyright issues (1)

TheRaven64 (641858) | more than 4 years ago | (#31227766)

It's fairly common for the copyright to either be owned by the author and licensed to the publisher, or temporarily transferred to the publisher and then revert to the author when the book goes out of print. It's unusual for the publisher to own the copyright on out-of-print works, which is why you often see a new edition of books published by someone else after the first edition goes out of print for a bit.

If there are multiple authors, then they each hold the copyright on their own portion, unless they have assigned it to someone else, or died and someone else has inherited it, or unless it was produced as work for hire (magazine articles usually are, short stories, novels, and so on are usually not). To reproduce their work, you need their permission until the copyright expires. If there is really a large demand, then put some effort into finding who owns the copyright, get their permission, and do a print-on-demand run.

Re:How does this apply to gray copyright issues (1)

Anne Thwacks (531696) | more than 4 years ago | (#31227772)

going on for over 20 years, who owns it anyway?

Who has a patent on "scummy business tactics"?

Does this ruling apply outside the USA?

Re:How does this apply to gray copyright issues (1)

AndersOSU (873247) | more than 3 years ago | (#31230274)

case in point of why google want's this to be opt-out.

If this is an opt-out system, they will be able to make this out of print material available without tracking down any individual author. If this becomes an opt-in system, they won't bother and the material will languish until it properly enters the public domain (which if Disney has it's way will be never).

There are legitimate arguments on both sides, but suffice to say if copyright weren't essentially perpetual already a lot of these issues would be moot.

Difficulty of orphaned works (0)

Anonymous Coward | more than 4 years ago | (#31227820)

I think the difficulty of orphaned works is underestimated.

Gowers Review of Intellectual Property discusses in great detail
the subject of orphaned works. Here is a copy:

  http://2038bug.com/gowers.pdf

If google cannot find an economical way to deal with orphaned
works, their project may not be viable.

So yes, the crux of this debate is orphaned works. But that
doesn't really help it much.

The review discusses proposed new EU legislation regarding
orphaned works.

Denying orphaned works, google can only make worthwhile availability
of works that are (a) of value, (b) clear ownership, (c) not being sold.

The set of books that satisfy all three criteria is small.

(If anyone thinks it is *not* small, than this is a point that must
be cleared up first and foremost. Katz clearly thinks it is small.)

citations (1)

Truekaiser (724672) | more than 3 years ago | (#31228394)

The sad thing is that the ruling might make it illegal to even cite one book or article in another without asking for the permission first.

Re:citations (1)

nomadic (141991) | more than 3 years ago | (#31229250)

The sad thing is that the ruling might make it illegal to even cite one book or article in another without asking for the permission first.

No, it mightn't.

Re:citations (1)

JNSL (1472357) | more than 4 years ago | (#31240922)

There is zero chance of that happening. Thinking so is simply alarmist.
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