"U.S. court throws out Google digital books class status"

[Ninjalawyer]

Originally Posted by speakingtohe

The copyright holders permission is implicitly given when they send the books to the store perhaps? Maybe not, as Amazon does not have peak inside without permission AFAIK and it wouldn't apply to used bookstores.

Different implied rights apply to books in a physical container such as paper though as I am sure you know.

Helen

There's no "implicit permission" required for someone pick up a book and read a few pages.

A better example would be a book review on a website. Do you think a book reviewer should need the author's permission to quote a section (say a few paragraphs) of a book they are critiquing?

The basic idea that a book is the author's and that they have total control over its contents is an incorrect understanding of copyright. Copyright is a bargain between authors and the public; It is the authors that are granted certain rights to encourage creation, it is not the public at large that are granted certain rights. The public does not need to beg each author for an indulgence each time they wish to turn a page.

Amazon gets permissions from publishers and authors to include the contents of their books in Amazon's books search and to use "Peak Inside" because Amazon has contracts and business relationships with publishers and authors, not because it is necessarily legally required by copyright law.

[speakingtohe]

Originally Posted by Ninjalawyer

There's no "implicit permission" required for someone pick up a book and read a few pages.

A better example would be a book review on a website. Do you think a book reviewer should need the author's permission to quote a section (say a few paragraphs) of a book they are critiquing?

The basic idea that a book is the author's and that they have total control over its contents is an incorrect understanding of copyright. Copyright is a bargain between authors and the public; It is the authors that are granted certain rights to encourage creation, it is not the public at large that are granted certain rights. The public does not need to beg each author for an indulgence each time they wish to turn a page.

Amazon gets permissions from publishers and authors to include the contents of their books in Amazon's books search and to use "Peak Inside" because Amazon has contracts and business relationships with publishers and authors, not because it is necessarily legally required by copyright law.

Just curious and you are the lawyer after all

Helen

[Ninjalawyer]

In no particular order (because why not?):

A book reviewer doesn't need the permission of the author or publisher to quote their book because of fair use in the U.S. (fair dealing in other jurisdictions), regardless of whether or not the reviewer was provided a copy of the book. No permission is implied because no permission is necessary.

Amazon probably doesn't just go ahead and offer Look Inside on all books because it is in their business interest to keep authors and publishers happy. However, getting permission doesn't necessarily mean you are obligated at law to get permission, it's sometimes just useful for business.

A handshake deal can still be a contract, and copyright is different from the law of contract; it's a "bargain" in the sense that the public is asked to give up something to promote creative works. My original point was that people confuse copyrightable works with regular property that they control, and that is simply not correct. Without copyright, you would lose control of any work you disseminate; with copyright, you are granted a limited monopoly to control reproduction. The 9th Circuit Appeals Court in the U.S. describes it this way:

The Copyright Act exists "'to stimulate artistic creativity
for the general public good.'" Mattel, Inc. v. MGA Entm't, Inc., -F.3d-, 2013 WL 264645, at *2 (9th Cir. Jan. 24, 2013)(quoting Twentieth Century Music Corp v. Aiken, 422 U.S.
151, 156 (1975)). It does so by granting authors a "special reward" in the form of a limited monopoly over their works. However, an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite. To avoid that perverse result, Congress codified the doctrine of fair use.

[speakingtohe]

Originally Posted by Ninjalawyer

In no particular order (because why not?):

A book reviewer doesn't need the permission of the author or publisher to quote their book because of fair use in the U.S. (fair dealing in other jurisdictions), regardless of whether or not the reviewer was provided a copy of the book. No permission is implied because no permission is necessary.

Amazon probably doesn't just go ahead and offer Look Inside on all books because it is in their business interest to keep authors and publishers happy. However, getting permission doesn't necessarily mean you are obligated at law to get permission, it's sometimes just useful for business.

A handshake deal can still be a contract, and copyright is different from the law of contract; it's a "bargain" in the sense that the public is asked to give up something to promote creative works. My original point was that people confuse copyrightable works with regular property that they control, and that is simply not correct. Without copyright, you would lose control of any work you disseminate; with copyright, you are granted a limited monopoly to control reproduction. The 9th Circuit Appeals Court in the U.S. describes it this way:

Doesn't seem to be a bargain to me, but probably it is defined as a bargain by law.

My opinion only is that people should gain from their labour if it is useful to others, even if it is intellectual in nature.

I can understand a very important work being pre-empted or a crucial piece of property if it is deemed necessary for safety concerns for instance or will save countless lives etc.
Whether saving/distributing works of popular or non popular fiction falls under these categories, seems a bit iffy to me.

I won't trot out all of the tired arguments involving pharmaceuticals etc. as I am sure you are more knowledgeable of them than I am. I do think that authors, inventors, and other creative types will continue to write, invent etc. just as gamblers will gamble and most people will work to support their families. It is the nature of the beast. Life will not change because of copyright infringement.

But I do not approve of Google taking it upon themselves to become the keepers and archivists of everything written and being allowed to do so because they are a large entity and it is convenient for many to have them do so.
In this instance I feel that the individual rights of the artist should prevail or they are nothing but slaves to the system with no choice of their own in this particular matter. They should at the very least have recourse to takedown notices such as major movie companies have.

I also feel that the idea that giving the actual creators more 'monopolistic control' will stop creativity to be fairly ludicrous and that the vast majority of the harm that is done by not allowing access to info is much more prevalent in the corporate world, where it id being controlled, not by the creator, but by the business people who bought rights to the idea or even in some cases their lawyers.

Thanks for the interesting reply.

Helen



.

[Ninjalawyer]

Writers do gain from their labours, so there's no argument there. However, they don't get a monopoly on those labours as some natural right and I don't think they should.

Why shouldn't Google become keepers and archivists if they're not stopping anyone else from doing the same (which was an issue in a proposed settlement between Google and the Writers' Guild)? Having books searchable makes them easier to find, and providing links to where they can be bought once they are found makes them easier to buy; society is benefited by getting more access to books and authors of obscure works benefit by getting another opportunity to sell their books. Saying that this makes someone a "slave to the system" is hyperbole.

And what purpose is served by giving writers even more control? The reason they are given any control at all is to encourage creativity, but there's a law of diminishing returns to that and at some point it actually does harm the overall creativity of a culture and to writers individually. Writers are well-served if they can apply and remix the ideas of other writers, and it doesn't benefit anyone if a writer can lock up the expression of their ideas forever; think of all the great works that have resulted from people adapting the plays of Shakespeare or stories from the Bible as two easy examples. You are mistaken if you think this only affects big companies.

On this last point, I'll just end with a snippet from a 1773 case from England where Lord Kames explains the benefit of limited control:

Lastly, I shall consider a perpetual monopoly in a commercial view. The act of Queen Anne is contrived with great judgement, not only for the benefit of authors, but for the benefit of learning in general. It excites men of genius to exert their talents for composition; and it multiplies books both of instruction and amusement. And when, upon expiration of the monopoly, the commerce of these books is laid open to all, their cheapness, from a concurrence of many editors, is singularly beneficial to the public. Attend, on the other hand, to the consequences of a perpetual monopoly. Like all other monopolies, it will unavoidably raise the price of good books beyond the reach of ordinary readers. They will be sold like so many valuable pictures..... [the] booksellers, by grasping too much, would lose their trade altogether; and men of genius would be quite discouraged from writing, as no price can be afforded for an unfashionable commodity. In a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals.

The issue really is that intellectual property is not property, and people are mistaken when they start trying to import physical property rights into the world of copyright. In his judgement, Lord Kames discusses at length (and using some really great language) why intellectual property is something different entirely, and I'd recommend reading it if you have an interest (I might be able to provide).

[murraypaul]

Originally Posted by Ninjalawyer

Why shouldn't Google become keepers and archivists if they're not stopping anyone else from doing the same (which was an issue in a proposed settlement between Google and the Writers' Guild)? Having books searchable makes them easier to find, and providing links to where they can be bought once they are found makes them easier to buy; society is benefited by getting more access to books and authors of obscure works benefit by getting another opportunity to sell their books. Saying that this makes someone a "slave to the system" is hyperbole.

Google's proposals gave them a quasi-governmental role.
They would have decided for themselves whether publishers or authors had rights over a particular work.
They would have decided they had the rights to sell 'orphan' works, and decided for themselves a rate to pay to a foundation they set up themselves to distribute revenues.
There is a problem with ophan works and copyright, and it should be solved by changes to copyright law, not by large corporations simply announcing that they are going to ignore it for their own benefit.

[Ninjalawyer]

Originally Posted by murraypaul

Google's proposals gave them a quasi-governmental role.
They would have decided for themselves whether publishers or authors had rights over a particular work.
They would have decided they had the rights to sell 'orphan' works, and decided for themselves a rate to pay to a foundation they set up themselves to distribute revenues.
There is a problem with ophan works and copyright, and it should be solved by changes to copyright law, not by large corporations simply announcing that they are going to ignore it for their own benefit.

Not quite.

They weren't deciding for themselves in some arbitrary way, they had set those terms via negotiations with the Writers' Guild and those terms were embodied in a settlement agreement between Google and the Writers' Guild.

There is a problem with orphan works in the U.S., and Google and the Writers' Guild had attempted to deal with what is effectively a legislative vacuum by coming to a reasonable accommodation. However, the fact that there is a legislative vacuum doesn't necessarily mean that what Google and the Writers' Guild proposed was a contravention of copyright law.

[speakingtohe]

Originally Posted by Ninjalawyer

Writers do gain from their labours, so there's no argument there. However, they don't get a monopoly on those labours as some natural right and I don't think they should.

Why shouldn't Google become keepers and archivists if they're not stopping anyone else from doing the same (which was an issue in a proposed settlement between Google and the Writers' Guild)? Having books searchable makes them easier to find, and providing links to where they can be bought once they are found makes them easier to buy; society is benefited by getting more access to books and authors of obscure works benefit by getting another opportunity to sell their books. Saying that this makes someone a "slave to the system" is hyperbole.

And what purpose is served by giving writers even more control? The reason they are given any control at all is to encourage creativity, but there's a law of diminishing returns to that and at some point it actually does harm the overall creativity of a culture and to writers individually. Writers are well-served if they can apply and remix the ideas of other writers, and it doesn't benefit anyone if a writer can lock up the expression of their ideas forever; think of all the great works that have resulted from people adapting the plays of Shakespeare or stories from the Bible as two easy examples. You are mistaken if you think this only affects big companies.

On this last point, I'll just end with a snippet from a 1773 case from England where Lord Kames explains the benefit of limited control:



The issue really is that intellectual property is not property, and people are mistaken when they start trying to import physical property rights into the world of copyright. In his judgement, Lord Kames discusses at length (and using some really great language) why intellectual property is something different entirely, and I'd recommend reading it if you have an interest (I might be able to provide).

You are right about the language being beautiful but I must disagree a bit about the Goths and vandals. I also disagree about books and other creative works being priced out of the market of the common people. A few might be, but the majority would have a hard time getting the same amount of income from selling limited amounts of copies. I am sure there are those who would be happier selling one book for $1000 or more than selling thousands for $10 each, but I personally am not going to be that interested in reading a book by someone with such an elitist attitude.

Again I am not advocating perpetual copyright, I am advocating that creative people should benefit from their labours just as anyone else. Creators more than most of us are dependent on the actual worth of their efforts to society. Many get nothing and a fortunate few strike it big. Life is not and never will be fair. I make $60+ an hour doing mindless menial work, that strangely enough I actually enjoy, and many people work a lot harder for a lot less, often creative people in creative avocations. If one of them strikes it big and his/her heirs continue to benefit for a few years after their death, I think it is far more incentive to keep people writing than telling them that they are privileged to be able to sell their works at all.

Intellectual property may not be granted the same rights under the law as so called real property, but the law is not a stagnate entity and has even been found to be wrong on occasion (finding big rock to hide behind)

Helen

[murraypaul]

Originally Posted by Ninjalawyer

There is a problem with orphan works in the U.S., and Google and the Writers' Guild had attempted to deal with what is effectively a legislative vacuum by coming to a reasonable accommodation. However, the fact that there is a legislative vacuum doesn't necessarily mean that what Google and the Writers' Guild proposed was a contravention of copyright law.

It really does.
The Writer's Guild have no legal authority to trade away the rights of authors who have not agreed to give them such authority, and Google has no authority to act as the government and reinterpret legislation.
Copyright is a bargain between the people, represented by their government, and the creator. Neither of those parties were involved in the Google/Writer's Guild negotiations.
Whatever Google and the Writer's Guild cook up between themselves can't reduce the legal rights of unconnected third parties.
Google was planning to sell copies of copyrighted works without the permission of the copyright holder. If that isn't a violation of copyright law, then what is?

[Ninjalawyer]

So if orphan works weren't part of what Google was trying to do, would you be fine with their scanning and indexing efforts?

[murraypaul]

Originally Posted by Ninjalawyer

So if orphan works weren't part of what Google was trying to do, would you be fine with their scanning and indexing efforts?

An orphan work is just one for which the copyright owner can't be found. Google aren't planning on making any effort to find copyright owners, that makes all the works 'orphan'.

I would be fine if they had the permission of the copyright owners to do what they are doing.

I would be fine if the Library of Congress allowed themselves an exception were to do what Google is doing (minus the selling part), but companies can't just ignore the law because we might like the results.

The French approach is the correct one, if the law is causing a problem, change it. The Google approach is to simply ignore it.

[Graham]

Originally Posted by murraypaul

Google was planning to sell copies of copyrighted works without the permission of the copyright holder. If that isn't a violation of copyright law, then what is?

Are they actually doing this? I've been reading wikipedia and looking at linked stories, but the best I can see is that they might be getting advertising revenue from ads placed near orphan works.

I may well have missed something though, and if you can point me to this aspect somewhere I'd appreciate it.

Graham

[pwalker8]

Copyright laws would be much less tangled if it simply recognized different tiers of protection. One level of protection for the vast financial empires such as Disney, Tolkien and Rowlings; another level for everyone else. Prior to 1978, copyright was for 28 years, with the option to renew for another 28 years. I suspect this a pretty good balance for anyone not named Disney.

It's the attempt to lock down the rights for the Disney empire (plus a handful of other artists) for eternity that has caused the real struggle. As has been pointed out by others, the real issue for most authors isn't copyright violations, it's obscurity.

[pwalker8]

Originally Posted by Graham

Are they actually doing this? I've been reading wikipedia and looking at linked stories, but the best I can see is that they might be getting advertising revenue from ads placed near orphan works.

I may well have missed something though, and if you can point me to this aspect somewhere I'd appreciate it.

Graham

Don't think so. The real issue is that it's impractical for Google to get the permission of each and every author, so they tried to set up a system where author's could opt out, i.e. If you have a problem with google selling your book, you could tell them not to. However, some seemed to think that even this small effort was way too much.

[Graham]

Originally Posted by pwalker8

Don't think so. The real issue is that it's impractical for Google to get the permission of each and every author, so they tried to set up a system where author's could opt out, i.e. If you have a problem with google selling your book, you could tell them not to. However, some seemed to think that even this small effort was way too much.

But they're not selling these books as far as I can see, are they? I thought this was about making snippets of the complete text available for search, with appropriate links to buy where there was a seller.

In many cases, where Google has the rights to sell the eBook, that seller may be Google, but I can't see where Google are accused of selling books where they don't have the rights, just of making them available for search.

Graham