Court rejects Google Books settlement

[RainingLemur]

Originally Posted by kennyc

Wow. Probably a good thing. It did seem Google was trying an "end around" or some such thing.

Next up: Project Fumblerooski.

It'll be a sad day when these "orphaned" works are profited from by some company without regard to the copyright holder(s). Good on the judge.

[charleski]

Personally, I'm saddened by Google's loss, not that I'm one of their big fans. It was a bold and visionary attempt, and you can't make an omelette without breaking any eggs. This is just another in a string of failed attempts to tackle the problem of orphan works - the US Congress may be the best place to solve it, but they've had a couple of goes now without producing anything.

It's clear that the root of the problem is the nature of commercial exploitation. Private individuals being able to access orphaned, out-of-print works over the net on a non-profit basis is good, commercial entities being able to resell those works without providing compensation is bad. This is what really needs to be tackled.

[pdurrant]

Originally Posted by charleski

It's clear that the root of the problem is the nature of commercial exploitation.

Nope. The root of the problem is excessively long copyright.

[kennyc]

Charleski, I'm a very big google fan as well, but I do think what they were trying to do here pushed the boundaries a bit.

[GA Russell]

I agree that legislation rather than out of court settlements is the best answer.

And I am completely opposed to a situation that would grant permission to Google to do something that everyone else is prohibited from doing.

However, they're not called "orphan works" for nothing. I note that all of the posts here refer to copyright holders rather than authors. I shed no tears for copyright holders who are not actively promoting the works. Nowadays a work can be posted at Amazon as an eBook for little investment. Use it or lose it.

[Elfwreck]

Originally Posted by GA Russell

However, they're not called "orphan works" for nothing. I note that all of the posts here refer to copyright holders rather than authors. I shed no tears for copyright holders who are not actively promoting the works. Nowadays a work can be posted at Amazon as an eBook for little investment. Use it or lose it.

In a lot of cases, nobody knows who the copyright holder is. If the author's alive, he or she may not know what the contract status of the work is. Or may not have access to a copy of the work itself--he wrote some poems in college and submitted them to a magazine, but doesn't have a copy to re-release. Which doesn't mean he's okay with someone else selling a collection of "Best Poems From 70's Magazines" without his consent.

Orphan may not be abandoned; it may mean "rights are unclear."

If the author isn't alive, the heirs may not even know they own the copyright(s). For example--my paternal grandmother died in 1978. If, the year before she died, she published a booklet, "On being divorced in the 60's," and it was discovered today--who owns the copyright?

She had three sons, who are all still alive. They have six living children, two each. I don't know how many living grandchildren there are (I'm not in contact with my cousins in different states); I just know it's "several." Somewhere between 15 and 30 potential heirs--at least one of whom I know was given up for adoption in infancy; does he have the potential of holding that copyright? Or part of it?

If someone wanted to publish my grandmother's (hypothetical) booklet, plenty of people in the family would insist that we have the rights to profits from it. But who controls? There was no will, or if there was, it certainly didn't mention copyrights.

If it got published without permission, any of those up-to-thirty people might file a lawsuit to claim infringement, and be granted a whopping ruling. If the publisher wants to get permission first, does he need to get a signed consent form from all of them, including the children? If my uncle decides to republish it, can my father & other uncle sue him? Can I?

Copyright "Life+X" law is a MESS.

[GA Russell]

Elfwreck, I can't have any sympathy for a copyright holder who doesn't know that he is a copyright holder.

Furthermore, legislation can set a reasonable royalty. Should the copyright holder sue, he would be entitled to what the law allows, not some whopping amount.

[Elfwreck]

Originally Posted by GA Russell

Elfwreck, I can't have any sympathy for a copyright holder who doesn't know that he is a copyright holder.

In the example given--if my family comes across this hypothetical book, which of us is the copyright owner? Or is it shared among all currently-living heirs? Is there some nice simple law I'm overlooking that establishes which child or children controls copyright when there's no will?

The Life+70 rule took effect after she died; her sons had no reason to expect they'd be copyright holders until 2049. If the previous law had stayed in effect, her book would be in the public domain now, and there'd be no conflicts about it.

I have sympathy with ignorant copyright holders because the laws about who controls copyrights are dense and convoluted; they were designed for corporate interests and it all got very very weird when everything was copyrighted even if not notified.

Furthermore, legislation can set a reasonable royalty. Should the copyright holder sue, he would be entitled to what the law allows, not some whopping amount.

Legislation could set a reasonable royalty. Should, probably. However, whatever amount is decided as "reasonable" will be hotly contested; any politicians who proposed such a thing can guarantee themselves out of a job come next election.

One of the problems with the Google settlement is that it set the royalty, which would only apply to orphan works published through Googlebooks; other orphan works publishers would be subject to the full penalty of law, up to $150,000 per item or whatever the current limit is.

[charleski]

Originally Posted by Elfwreck

Orphan may not be abandoned; it may mean "rights are unclear."

The solution, then, is to overturn the Berne Convention and require affirmative and regular registration of copyright in order to maintain rights for the full term. The copyright belongs to the registrant.

The burden this would place on creators would have been onerous 20 years ago, but these days things are different, and such registration would be simple to handle over the net as part of any professional workflow. This is, effectively, what was proposed a couple of years ago, and was shot down amidst a cacophony of wailing.

Objections to registration in one form or another have played a key role in most of the opposition to any rationalisation of the orphan works mess. But when the creators' lobbies seem focussed purely on maintaining the status quo and refuse to offer any meaningful solution one can't help but begin to lose patience.

[charleski]

Originally Posted by pdurrant

Nope. The root of the problem is excessively long copyright.

Long terms certainly add to the problem, but I don't think they represent the core issue. Reducing copyright terms would probably be of little use in Elfwreck's example of a collection of "Best Poems From 70's Magazines", since I doubt that it's realistic to expect copyright terms to get reduced down to 1786 levels.

Let's say you chance upon a stack of small-run magazines printed on low-grade newsprint 30 years ago which are busy dissolving in their own acid. You know that these will soon be illegible, you know that the companies that published them have long since vanished, you know that only a tiny number were printed and these copies may be the last remaining ones.

Should our culture lose the contents forever? Remember that any copying of the magazines is a violation of copyright. You could put in wider exemptions for the purpose of archiving, and then term limits would determine when a compilation could be published. This would currently mean the archive gathers dust for another 120+ years before seeing the light of day. Or you could allow immediate publication on a non-profit basis for a certain length of time, following which, if no claimants come forward, the works pass into the public domain and may be exploited in any way one chooses.

[Kali Yuga]

Originally Posted by charleski

The solution, then, is to overturn the Berne Convention and require affirmative and regular registration of copyright in order to maintain rights for the full term.... The burden this would place on creators would have been onerous 20 years ago, but these days things are different....

Yes, different in a way that makes registration a total unworkable nightmare.

The US Copyright Office currently has an 18-month backlog -- for optional copyright registration. If registration becomes mandatory, the CO would be overwhelmed.

In the digital era, massive amounts of content is generated and distributed instantaneously. A photographer can crank out 500 images in a day -- and the client will want the images within hours. A blogger can post multiple entries a day, and will want to post immediately. 275,000 books were published in the US in 2008.

If registration was required, the volume of data they would need to host and index would be tremendous. And who's going to fund it? Do you genuinely believe that Congress will appropriate $500 million to the Copyright Office and increase their annual spending to build a registration website, when they are cutting funds to everything in sight?

And of course, a prospective screenwriter can send around his work to dozens of studios, and revise it during the process, without worrying about registering each and every draft at $35 a pop, or waiting a year to get the confirmation of the registration.

Automatic and immediate copyright registration is a vital right for content creators in the digital era -- and that doesn't mean just the big companies, it also means the small or independent artists who are actually doing the creative work. They aren't "clinging to the status quo" for its own sake, they're doing it because requiring registration will impose an onerous burden on the way they earn a living.

I do not see how what amounts to putting a small percentage of work into the public domain ahead of schedule -- or worse, granting Google an exclusive monopoly over those works -- justifies screwing over the content creators and increasing the bureaucracy by several orders of magnitude.


On a side note, let's keep in mind that a major problem with what Google was trying to accomplish did NOT involve orphaned works. Rather, it affected out of print books, where the copyright holder was still alive and aware of his or her work. What Google did was sweep up every book in a given library in its scanning project, and force the authors to opt out -- and if they did not opt out by a certain date, they were in whether they liked it or not. Google made zero effort to track down or find the copyright holders, did not allow any proofreading or review of the scanned book, and did not allow any sort of negotiation on rates. The Settlement also would have given Google an effective monopoly over the orphaned works -- hardly an ideal situation.

Nor, ultimately, does the Author's Guild have the authority to settle in the first place. They don't hold the copyrights, thus they can't give away someone else's rights in a legal settlement.

Like it or not, this is a job for Congress; and the solution is not going to involve shortening copyright, or requiring registration, and will need to protect the artists who are alive and working.

[8annika.yael]

Originally Posted by Elfwreck

Woot!

On the one hand, googlebooks have been a really useful thing. On the other, the settlement proposed was good for (1) Google, (2) many (not all) authors connected to the Author's Guild, (3) .... ahm, some other authors with out-of-print books that they'd like redistributed but don't want to put forth any effort in that direction.

Was not good for anyone who produced book content that didn't fall under AG's preferred scope, like academic writers/publishers, music/lyrics writers, photographers, children's books authors, non-US authors, orphan-works rightsholders, and more. All of whom would be bound by the agreement if it went through, because the AG claimed they were part of the class being represented.

it's crazy how these all-encompassing laws come into play. they may be helpful to a majority, in the case the Author's Guild, Google, etc. but to those almost niche categories Elfwreck mentions as not "part of the class being represented" said law does them no good and something drastic has to happen to open up the channels for reformation. Children's books authors getting the short end of the stick?

i do enjoy Google Books, however.

[Kali Yuga]

Originally Posted by charleski

Long terms certainly add to the problem, but I don't think they represent the core issue.

I concur, it won't help. (I still think Life + 50 is better though.)

Originally Posted by charleski

Let's say you chance upon a stack of small-run magazines printed on low-grade newsprint 30 years ago which are busy dissolving in their own acid. Should our culture lose the contents forever? Remember that any copying of the magazines is a violation of copyright.

Actually, that's not quite accurate.

Libraries already have an exemption for archival uses. You as an individual are also allowed to format shift. However, you are not allowed to redistribute that content without the permission of the rights holder.

Also, let's keep in mind that Google believes only 10% of the works they scanned are actually orphaned; the rest are merely out of print (http://news.cnet.com/8301-1023_3-10300887-93.html).

So while I believe almost everyone agrees that orphan works should be handled better, that particular issue isn't really going to hold up or cripple the Google book scanning project. Fixing it certainly does not justify eviscerating active copyrights, forcing authors to publish their books through Google in digital form with zero negotiation, or requiring registration.

[Elfwreck]

Originally Posted by Kali Yuga

If registration was required, the volume of data they would need to host and index would be tremendous. And who's going to fund it? Do you genuinely believe that Congress will appropriate $500 million to the Copyright Office and increase their annual spending to build a registration website, when they are cutting funds to everything in sight?

I'd suggest leaving registration as automatic, like it is now, for ~20-30 years, and then requiring registration to renew. Those things that are still commercial viable in a couple of decades can be renewed; everything else can fall into the public domain. That doesn't drastically increase the copyright office's workload.

Also: cost of renewal should be higher than initial (optional) registration, to cover (1) CO's operating costs and (2) a penalty for denying the public use of the material--a monopoly tax.

If your work isn't worth $2,000 for 20-40 years of exclusivity, it doesn't need to be renewed. Although it's possible that a token renewal fee of $20 would be enough to let most things lapse; the requirement of registering would make most people not bother.

What Google did was sweep up every book in a given library in its scanning project, and force the authors to opt out -- and if they did not opt out by a certain date, they were in whether they liked it or not. Google made zero effort to track down or find the copyright holders, did not allow any proofreading or review of the scanned book, and did not allow any sort of negotiation on rates. The Settlement also would have given Google an effective monopoly over the orphaned works -- hardly an ideal situation.

Yep, and this is one of the reasons I opposed the settlement... nice idea, too heavily skewed towards "Google gets to do anything it wants; ignore that pesky copyright law thing and all those book contracts."

I think the Googlebooks preview function is within the range of fair use (well, mostly; a case could be made that it makes too much available, but that's the kind of hairsplitting we have courts to figure out), but the ability to sell those books, regardless of author wishes, without even allowing for authors to provide accurate-text versions, is way beyond the power of a settlement to grant.

Nor, ultimately, does the Author's Guild have the authority to settle in the first place. They don't hold the copyrights, thus they can't give away someone else's rights in a legal settlement.

Several groups pointed this out as well. They may have some arguable right to represent the interests of all authors who are members of the guild; they have no right--and made no effort--to defend the interests of copyright owners of entirely different kinds of works.

Like it or not, this is a job for Congress; and the solution is not going to involve shortening copyright, or requiring registration, and will need to protect the artists who are alive and working.

If it doesn't involve shortening copyright, we're going to have a growing digital split between corporate copyright interests and individual non-commercial use. Copyright infringement penalties are absolutely ridiculous when applied to individuals, and most people who look at the cases agree--there's no way that uploading a couple-dozen songs is a couple-million dollars worth of damage to anyone.

(My local community: several clubs have now declared that "open mic night" can only allow original songs because of copyright hassles. This is... not helping anyone. Requiring tiny bars to pay royalties for amateur performances with an audience of 20-odd people is not what copyright law was designed for.)

[avantman42]

Originally Posted by Kali Yuga

You as an individual are also allowed to format shift.

My understanding is that what you say is true in the US, but in the UK, it's illegal to format shift. You're unlikely to be prosecuted (back in 2006, the BPI said they wouldn't sue people for copying CDs to MP3 players), but it's not legal. I don't know where charleski is, so it may or may not be legal for him/her.