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

[Ninjalawyer]

Originally Posted by murraypaul

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.

I think you might be confused on the orphan works issue here.

[pwalker8]

Originally, I believe they did plan to sale books. They may still want to do so, once all the legal issues are settled, I'm not sure where all that stands.

[Ninjalawyer]

Originally Posted by Graham

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

That's essentially correct, but unfortunately a lot of authors have a knee-jerk reaction to anyone even thinking about touching "their" books.

Just to answer your question though, Google Books does provide links now to several book stores (depending on the book) including Amazon, Chapters and Google Play. When someone buys the book, Google doesn't scoop the cash, it goes through the retail store like it normally does; if that store is Google Play then Google gets whatever mark-up they charge and the publisher gets their usual cut.


If anyone is interested, here is a submission Google made to the U.S. Copyright Office. In it, Google describes what they have done to try and help with the general problem of orphan works, describes some of the issues with mass book digitization projects and advocates for the Copyright Office to do something about the orphan works problems.

[Graham]

Thanks for that, Ninjalawyer.

Graham

[murraypaul]

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.

Doing it now? No.
But it is in the proposal.
http://www.authorsguild.org/wp-conte...-Agreement.pdf

[murraypaul]

Originally Posted by Ninjalawyer

I think you might be confused on the orphan works issue here.

The settlement would only require them to take 'commercially reasonable' steps to identify rights holders. In other words, if it is too expensive to work out who owns a work, they will simply declare it to be orphaned.
I think they are confused about the orphan works issue.

[Graham]

Originally Posted by murraypaul

Doing it now? No.
But it is in the proposal.
http://www.authorsguild.org/wp-conte...-Agreement.pdf

OK, interesting read.

There are a lot of safeguards in there, so it seems to boil down to whether you consider default opt-in or default opt-out to be the one with the right balance between fair and practical.

Consider, if opt-in was the default then no orphaned works would be included. There would be no sales and no marketing of the work. Obscure work would be made no less obscure.

With opt-out, as here, a rightsholder who didn't spot that their work was included would lose out - exactly as if opt-in was the default, yet their obscure work may well become less obscure. And if, as is more likely, they realised the work was up in Google Books then they could choose to opt out or take the money.

Graham

[Ninjalawyer]

Originally Posted by murraypaul

Doing it now? No.
But it is in the proposal.
http://www.authorsguild.org/wp-conte...-Agreement.pdf

Isn't that just the settlement that was rejected by the courts ages ago? If so, I'd hardly call that the current proposal.

More recently than that old thing is the lawsuit between the Writers' Guild and Hathitrust that "concluded" in 2012 (the Writers' Guild has since appealed). HathiTrust involved Google, the University of Michigan and several libraries digitizing millions of books and making them searchable. For the purposes of this conversation, it also involved an orphan works project; basically, HathiTrust would make a diligent search for a copyrightholder, but if no holder could be found then the full digital text would be made available.

The Writers' Guild alleged massive copyright infringement. The court found for HathiTrust and company and the judge wrote:

I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts...

So it seems as though the digitization of books and making them searchable is reasonably supported by current copyright law. The orphan works issue wasn't adjudicated in the above decision.

Interestingly, reading some author Amicus briefs related to the Authors' Guild's appeal, it seems like one of the main concerns is that some rogue agent could get into the digitized books database and distribute all of the books for free, causing a piracy-pocalypse. It's rather telling that they've resorted to arguing flights of fancy.

[murraypaul]

Originally Posted by Ninjalawyer

Isn't that just the settlement that was rejected by the courts ages ago? If so, I'd hardly call that the current proposal.

Have they published a more recent one?

So it seems as though the digitization of books and making them searchable is reasonably supported by current copyright law. The orphan works issue wasn't adjudicated in the above decision.

Significant differences between this at the Google books settlement is that it had a clear sole non-commercial research purpose, which would weigh heavily in the fair use balancing act.
The 'works' being offered were the indexes of the original works, they were not selling full copies of the works.
This was a much easier case to win.

[Ninjalawyer]

That settlement proposal is dead and there may not be another one as Google has been scoring some useful court victories. Even if there is a settlement, the agreement will need to be significantly different so there's little point in discussing the old one.

The HathiTrust case is an extremely useful precedent for Google, provided it isn't overturned on appeal. That case involved the mass digitization of books, creating a searchable database of those books and providing "Look Inside" style previews for book. Many of the factors that go into a fair use determination in that case will also apply in the main Google Books action; whether or not Google is selling books is a factor but not determinative.

Just as a general comment, why do you think it is so much worse for authors if Google digitizes books and provides links to bookstores that sell that book (including Google's own bookstore)? Why should transforming paper books into searchable digital books be morally okay, but linking those books to a retail store be so repugnant?

[pwalker8]

Originally Posted by Ninjalawyer

...

If anyone is interested, here is a submission Google made to the U.S. Copyright Office. In it, Google describes what they have done to try and help with the general problem of orphan works, describes some of the issues with mass book digitization projects and advocates for the Copyright Office to do something about the orphan works problems.

Thanks for the link. That sounds like a very reasonable proposal for orphaned works. I hope that Congress acts on it.

[murraypaul]

Originally Posted by Ninjalawyer

Just as a general comment, why do you think it is so much worse for authors if Google digitizes books and provides links to bookstores that sell that book (including Google's own bookstore)? Why should transforming paper books into searchable digital books be morally okay, but linking those books to a retail store be so repugnant?

I've never said that it was.
The settlement proposed that Google themselves would directly sell ebooks based on the scans that they had made, not just link to authorised versions that the creators had already made available. That is what I have been saying is so clearly a copyright violation I'm amazed there is even a discussion about it.

[Ninjalawyer]

Originally Posted by murraypaul

I've never said that it was.
The settlement proposed that Google themselves would directly sell ebooks based on the scans that they had made, not just link to authorised versions that the creators had already made available. That is what I have been saying is so clearly a copyright violation I'm amazed there is even a discussion about it.

And as I have been saying, that settlement is irrelevant. We might as well argue about what Romney would have done as president of the U.S.

In any event, I think we can agree there's probably going to be some interesting litigation on orphan works in the future, but otherwise we've exhausted this argument.

[murraypaul]

Originally Posted by Ninjalawyer

And as I have been saying, that settlement is irrelevant. We might as well argue about what Romney would have done as president of the U.S.

The settlement isn't dead, and I don't believe Google have ever renounced it.
The case now goes back to Judge Chin to continue.

[eschwartz]

Google didn't do anything wrong, any more than you or me or anyone who quotes some book we've read. At least, until the Author's Guild did their stupid thing, and then decided bizarrely to say it's all right for Google to sell orphaned works.

It sounds to me as if they were just hoping to make free money off Google, because everyone wants to BELIEVE Google is evil, bent on world domination, and "steling ar bookz!!!11"

I wonder how much any author lost due to lost sales as a result of Google's indexing? I'm guessing somewhere between zero and nothing. That's because NOBODY GOT ANYTHING ANYWAY! Besides for the knowledge of "hey, go to this store and buy this book to learn more about that quote you just googled."

What is anyone's big fat hairy deal? Next thing you know, they will complain that Google infringed on the unique content on their website home page.