Is Google Taking over the Government?

[wordmunger]

I thought MR readers might be interested in my latest blog post:

Is Google taking over the government?

The Washington Post has an interesting pair of articles on the Google lawsuit. One is written by the University of Michigan head librarian, defending Google. The second is by the president of the Authors Guild. Since they’re the ones doing the suing, you know where they stand.

Now neither of these articles is particularly long on substance, but I did want to clear up one bit of misinformation in Nick Taylor’s article:

Google contends that the portions of books it will make available to searchers amount to “fair use,” the provision under copyright that allows limited use of protected works without seeking permission. That makes a private company, which is profiting from the access it provides, the arbiter of a legal concept it has no right to interpret. And they’re scanning the entire books, with who knows what result in the future.

Taylor seems to be claiming that Google is taking the law into its own hands, deciding for the rest of us what “fair use” is. If you believe Taylor, by scanning books Google is usurping the role of the U.S. government itself.

I think what Taylor has done here is far more than a rhetorical sleight of hand — it’s hypocritical as well. Google has done anything but usurp the role of government, because copyright law doesn’t give government the role of determining whether a specific instance of copyrighted material falls under the fair use guidelines. The only way for that to be achieved is by filing a lawsuit. This is one of the ways copyright law was crafted by the big guys in order to crush the little guy. If an average Joe publishes an excerpt critical of a big company on his Web site, the big company can slap Joe with a lawsuit, and unless Joe can afford to hire an army of lawyers to defend himself, he has no recourse but to remove the material. That’s the way the corporate hacks who wrote the copyright laws want it (if you don’t believe this, please read Jessica Littman’s book Digital Copyright and then get back to me).

So far from usurping the role of government, Google is doing the only thing the little guy can do to challenge corporate-sponsored copyright law. The scary thing is, the law may still be on the Authors Guild’s side (and now the Association of American Publishers). No one said the publishing companies don’t have good lawyers. But as I’ve said before, I think Google’s got a better chance of winning this lawsuit than changing copyright law to allow their new version of fair use.

So here’s the prospect we’re faced with: if you don’t want easier access to published information, if you don’t want to be able to locate critical bits of knowledge — even in the 60 percent of all books that are still copyrighted but now out of print — then you should side with the authors.

But the authors themselves should also realize something. Starting up lawsuits such as this one, which stifle the ability to find their works in an increasingly electronic age, will only hasten the demise of that thing they so cherish — the printed book itself.

[tristan]

As an author, how do you think I would feel about selling exactly one copy of my next book? I am a content creator, and some of that content, I choose to put on the web for free, and other content I choose to publish with the help of a bookstore. No fair taking the content I created for sale with the financial assistance of a publisher and giving it away for free. If you do that, I will have to find other ways to distribute content that can be adequately protected, or I will just stop creating and selling it at all. How well will Google's idea work when there are no books to scan, just DRM'd eBooks everywhere?

[greatdevourer]

http://www.robinsloan.com/epic/ It has begun

[mactastic]

I'm sure there's a reasonable balance to be struck somewhere between not publishing anything online and putting writers out of business.

Print media is going to have to evolve just as digital music did. If that involves different distribution channels or a new income strategy so be it. Evolve or die.

[clayj]

I'm totally on the side of the authors/publishers on this one... Google has no legal right to scan even ONE copyrighted book without obtaining the explicit permission of the copyright holder... they'd prefer an opt-out system, where the publisher would have to tell them NOT to scan a book.

But an opt-out system would be like a burglar standing at the top of your street one afternoon, yelling "I intend to break into all of your houses and rob you!", proceeding to do so, and then acting all surprised when he gets caught by a homeowner. You can't absolve your guilt for a crime by pre-announcing your intention to commit it.

If Google wants to scan books that are copyrighted, it should be an opt-IN system: Copyright holders should have to affirmatively inform Google that they wish for their books to be scanned and accessible, for whatever period of time they agree to. (Obviously, pre-1923 books that are in the public domain may be scanned by Google, or anyone else, at any time.)

And I don't give a damn WHAT reasoning Google provides for why scanning books is a good idea... if the copyright holder says "no", that's the end of the damn argument. Screw the "public interest" or anything else... the copyright holder has the final (and ONLY) say in what is done with their books.

[wordmunger]

Originally Posted by tristan

As an author, how do you think I would feel about selling exactly one copy of my next book? I am a content creator, and some of that content, I choose to put on the web for free, and other content I choose to publish with the help of a bookstore. No fair taking the content I created for sale with the financial assistance of a publisher and giving it away for free. If you do that, I will have to find other ways to distribute content that can be adequately protected, or I will just stop creating and selling it at all. How well will Google's idea work when there are no books to scan, just DRM'd eBooks everywhere?

As I said in my article, the law may be on your side -- after all, Google must make a "copy" of the book in order to index it, and you have "copyright."

But Google is not "giving it away for free." They're allowing people to search for keywords and phrases that appear in your book. They then publish snippets of a sentence or two around that keyphrase so that individuals can decide if they need to get the whole book.

Let's take a simple example. Suppose you write a book about Macs: "Every Photographer's Guide to Macs." Now suppose I want to know if your book has anything in it about using iPhoto to archive photos on DVD. I could type "iPhoto DVD archive" into Google, and your book pops up. I can see that your book has 22 references to these terms. But I'm not going to be able to read exactly how to set up an archive, because I can only see a few sentences at a time. Fortunately, Google has a link to Amazon.com, where I can easily buy the book. Or if your book is out of print, there is a listing of the libraries where it can be found.

In the best case, I'd buy your book and you make money. In the worst case, your book is already out of print, so you're not going to make money. But if I go to the library and get your book and like it, then I might be more likely to buy your next book.

The problem with copyright law is that it governs all copying. It's based on 19th century technology, where copying was a difficult thing. Copyright law badly needs to be revised to incorporate 21st century technology, where copying is easy. A balance needs to be struck where the rights of authors are preserved and people have easy access to information. Personally, I think Google is on the right side of that balance.

[greatdevourer]

Come to think of it, according to EPIC2014, they're 5 years ahead of shedule

[wordmunger]

Originally Posted by clayj

I'm totally on the side of the authors/publishers on this one... Google has no legal right to scan even ONE copyrighted book without obtaining the explicit permission of the copyright holder... they'd prefer an opt-out system, where the publisher would have to tell them NOT to scan a book.

But an opt-out system would be like a burglar standing at the top of your street one afternoon, yelling "I intend to break into all of your houses and rob you!", proceeding to do so, and then acting all surprised when he gets caught by a homeowner. You can't absolve your guilt for a crime by pre-announcing your intention to commit it.

If Google wants to scan books that are copyrighted, it should be an opt-IN system: Copyright holders should have to affirmatively inform Google that they wish for their books to be scanned and accessible, for whatever period of time they agree to. (Obviously, pre-1923 books that are in the public domain may be scanned by Google, or anyone else, at any time.)

And I don't give a damn WHAT reasoning Google provides for why scanning books is a good idea... if the copyright holder says "no", that's the end of the damn argument. Screw the "public interest" or anything else... the copyright holder has the final (and ONLY) say in what is done with their books.

Well, you better shut down the regular Google search engine as well, because that's exactly how all Internet searching works. You see, copyright isn't just about books. It's about everything. This lawsuit won't stop with books.

As I said in my other response, the problem is that copyright law wasn't written by people who understand how the Internet works. "Making copies" is a bad way to enforce rights to access to information. I should have a right to flip through a book and glance over its content before deciding whether I need to buy a copy for myself. I can do this in a bookstore, so why not online? I even have a right to borrow a book from a friend, or check it out from the library. Copyright does not give authors the right to determine everything anyone does with their book. Surely Google's publishing a few snippets isn't going to substitute for someone buying a book -- it's an entirely different enterprise.

As I've now said several times, this does not mean the law is on Google's side. However, the only way to find out is for Google to do what it's doing. If no one ever does it, no one will ever know if it's legal, because the way fair use is enforced is through lawsuits like those of the Authors Guild and the AAP.

[clayj]

Originally Posted by wordmunger

Well, you better shut down the regular Google search engine as well, because that's exactly how all Internet searching works. You see, copyright isn't just about books. It's about everything. This lawsuit won't stop with books.

Now you're being extreme with your argument... by putting a page out where Google can link to it, you're giving tacit permission for it to be indexed. ALSO, there are ways to prevent Google from indexing a page in the first place. So, none of this will have any real effect on the natural purpose of search engines, which is to index EXISTING content on third-party web sites (not Google's own systems itself).

Originally Posted by wordmunger

As I said in my other response, the problem is that copyright law wasn't written by people who understand how the Internet works. "Making copies" is a bad way to enforce rights to access to information. I should have a right to flip through a book and glance over its content before deciding whether I need to buy a copy for myself. I can do this in a bookstore, so why not online? I even have a right to borrow a book from a friend, or check it out from the library. Copyright does not give authors the right to determine everything anyone does with their book. Surely Google's publishing a few snippets isn't going to substitute for someone buying a book -- it's an entirely different enterprise.

Flipping through a book isn't copying the book. If such a functionality is to be available online, surely it's the publisher's prerogative to provide this functionality themselves OR to ask Google to do it for them. It is NOT Google's prerogative to provide this functionality without the consent of the publishers/copyright holders.

And borrowing a book, or checking it out from the library, is again NOT copying the book.

Whatever intent Google has for the contents of these books, once they've been scanned, is irrelevant. The copyright holder should have authority over what Google is, and is NOT, allowed to do with their copyrighted material.

Originally Posted by wordmunger

As I've now said several times, this does not mean the law is on Google's side. However, the only way to find out is for Google to do what it's doing. If no one ever does it, no one will ever know if it's legal, because the way fair use is enforced is through lawsuits like those of the Authors Guild and the AAP.

I agree... this is an important lawsuit. I predict that Google will lose, and lose big... they're going to be told that they must obtain EXPLICIT authorization to scan ANY book that's protected by copyright. Anything less, and we will have witnessed the beginning of the end.

[wordmunger]

Clay,

If you think the point of "copyright" is simply to prevent "copying" then your arguments are exactly true.

Personally, I believe there's something more at stake. "Copyright" was a crude, 17th century invention designed to encourage innovation. Necessitated by the invention of the printing press, it allowed people to make money by creating ideas.

We have moved so far beyond the printing press that copyright has really ceased to be about "copying." Indeed, copyright laws are so complex that most of them have nothing to do with making copies. As a teacher, I can legally make dozens of copies of a copyrighted work and distribute them to my class. But as a bartender, I can't legally read the latest NY Times editorial to the patrons of my bar. I could, however, pass my copy around to the patrons and let them read it for themselves.

As a blogger, I can copy several paragraphs of a book and put them up on my blog in a post accessible to millions of readers, where I ridicule the book and suggest that its author is an idiot, thus dissuading thousands of potential buyers.

But according your reasoning, Google can't provide a few sentences of a book and link to an online bookstore where interested readers can buy it. And according to copyright law, you may be right.

But is copyright law right? That's the bigger question, and it goes beyond just making copies. Can't you at least acknowledge that?

If the original point of copyright was to encourage people to create ideas, then what would be wrong with a provision in the law allowing something like Google Print to exist? Would I be less likely to write a book, knowing that readers could search and find one- or two-sentence snippets from it online? Maybe I'd be more likely, figuring that many readers won't realize they need my book until they can find it online.

But even if it didn't encourage any additional innovation on the part of authors, in balance, Google Print would still be desirable because it would allow so much more access, especially to out of print titles, which as I've said before, now constitute 60 percent of all books in existence. This free exchange of ideas is also part of copyright. The point is not just innovation, but letting people have access to that innovation.

If you want to limit your understanding of copyright law to the creation of copies, if you think the right to regulate creation of copies is the most important thing about copyright law, then I suppose that you can't be persuaded. Personally, I think copyright involves much, much more than that, and so I am not persuaded by your arguments.

[wordmunger]

Originally Posted by clayj

Now you're being extreme with your argument... by putting a page out where Google can link to it, you're giving tacit permission for it to be indexed.

No, you are not, any more than a book author gives "tacit permission" for his or her book to be copied or indexed

ALSO, there are ways to prevent Google from indexing a page in the first place.

These involve the active effort of site authors. How is this any different from the active effort of book authors necessary to prevent Google Print from indexing their books? In case you don't know, Google Print will remove any book from its index on request of the rightsholder.

So, none of this will have any real effect on the natural purpose of search engines, which is to index EXISTING content on third-party web sites (not Google's own systems itself).

Um.... No. The only way Google can work is for it to host the content on its OWN computers. That's why, when a site is down, you can still find it through the Google Cache.

So, you see, it's really no different from Google Print at all.

[mactastic]

Originally Posted by clayj

Now you're being extreme with your argument... by putting a page out where Google can link to it, you're giving tacit permission for it to be indexed. ALSO, there are ways to prevent Google from indexing a page in the first place. So, none of this will have any real effect on the natural purpose of search engines, which is to index EXISTING content on third-party web sites (not Google's own systems itself).

I disagree with your assertion that by putting your webpage on the internet that you have given permission for it to be copied, and also I find it odd that you would demand an opt-in feature for print media, yet be satisfied with an opt-out setup for web publishing.

Flipping through a book isn't copying the book. If such a functionality is to be available online, surely it's the publisher's prerogative to provide this functionality themselves OR to ask Google to do it for them. It is NOT Google's prerogative to provide this functionality without the consent of the publishers/copyright holders.

I'd be curious to see if Amazon has explicit permission from every copyright holder to excerpt their books online.

And what Google has proposed is to simply be allowed to 'flip through' the book online, just as you would in a library or bookstore. Since they are not putting the entire work online, you can't copy the book. I mean, I suppose if you searched it enough you could copy the thing, but you can also take a book to the copy machine in the library if you wanted.

And borrowing a book, or checking it out from the library, is again NOT copying the book.

No, after I check out a book from the library I rarely ever buy it. Why should I? Unless its a reference book, I've already gotten what I need from it. This seems like it actually has the potential to raise book sales.

Whatever intent Google has for the contents of these books, once they've been scanned, is irrelevant. The copyright holder should have authority over what Google is, and is NOT, allowed to do with their copyrighted material.

As mentioned earlier, copyright doesn't give the copyright holder TOTAL control over their work. I can't stop someone from lending my book to another person. I don't get to decide who can and who cannot purchase my book. I can't stop instructors from using my book as lecture material. I can't insist that libraries not stock my book because I'm afraid someone will make illegal copies.

I agree... this is an important lawsuit. I predict that Google will lose, and lose big... they're going to be told that they must obtain EXPLICIT authorization to scan ANY book that's protected by copyright. Anything less, and we will have witnessed the beginning of the end.

You're right, this is huge. This problem is going to have to be solved somehow. The music industry got hit first, then movies. Now print media. Apple had to drag the music industry kicking and screaming into the 21st century. But look at the success of iTMS. And how it's cut into the illegal downloading. Without a legal alternative, you just encourage the illegal ways to flourish. Take a poll of how many people here would go back to limewire if iTMS didn't exist. I'd bet many would say they'd go back to piracy, and others who wouldn't admit it would do so as well.

Intellectual property laws desperately need updating. We need to leave an incentive in place for people to continue to produce intellectual material, but we also need to acknowledge that digital systems and the internet are here to stay.

BTW, isn't this real similar to Lexis-Nexus? Except supported by advertising dollars instead of subscriptions?

[wordmunger]

Good points, Mactastic. I just wanted to respond to a couple of items, so I've done a lot of snipping.

Originally Posted by mactastic

And what Google has proposed is to simply be allowed to 'flip through' the book online, just as you would in a library or bookstore. Since they are not putting the entire work online, you can't copy the book. I mean, I suppose if you searched it enough you could copy the thing, but you can also take a book to the copy machine in the library if you wanted.

No, you actually can't even do that. I've tried repeated searches with the same book, and eventually it will tell you you've accessed it too many times (about 5 or 6, IIRC). There's no way (short of hacking, which is illegal under the DMCA) to read an entire book with this service. And with copyrighted texts, I doubt you could even "flip" through an entire page this way.

BTW, isn't this real similar to Lexis-Nexus? Except supported by advertising dollars instead of subscriptions?

Actually, I think Lexis-nexus is opt-in, as is Amazon. So Google really is doing something different in requiring authors to opt out. Not different from Google Web search, but different from anything that's been done with printed materials.

BTW, I wouldn't be opposed to publishers in the future being able to print some sort of enforceable notice in their books so that Google couldn't scan them. This is not unlike the Robots.txt file which allows web site authors to request that search engines pass them over. But I'd hate to see an opt-in requirement for the millions of books that have already been published -- especially since in many cases the authors are long-dead or unreachable and we have no idea whether they'd have chosen to opt in.

[tristan]

Originally Posted by wordmunger

But Google is not "giving it away for free." They're allowing people to search for keywords and phrases that appear in your book. They then publish snippets of a sentence or two around that keyphrase so that individuals can decide if they need to get the whole book.

If Google only publishes a couple of sentences, I guess I wouldn't be too upset. But if their system was ever "gamed" so that people could pull full pages or even chapters, I hope they're ready for Napster-style lawsuits.

BTW don't assume I'm a cheerleader for the current publishing business model - it's got a lot of problems. I would like to see some system where authors could sell a $20 book to more people and actually keep $6. (Now $3 is considered good.) Something like this is possible with Print-On-Demand + Internet.

[pseudobrit]

Originally Posted by clayj

Now you're being extreme with your argument... by putting a page out where Google can link to it, you're giving tacit permission for it to be indexed.

How so? I could just as easily say that by publishing a book, you're giving permission for critics to quote it and libraries to index it. Which seems to be what's happening here.

For years now, excerpting has been an allowable use of copyrighted material.

Why do you think iTunes will give you 30 seconds of a song without needing a copyright waiver?

What would be so different about this?

[Thomas Veil]

Originally Posted by tristan

I would like to see some system where authors could sell a $20 book to more people and actually keep $6. (Now $3 is considered good.) Something like this is possible with Print-On-Demand + Internet.

Are you talking about something like Cafepress?