Court rejects Google Books settlement

[kjk]

http://news.cnet.com/8301-13577_3-20045967-36.html

Indeed, the ASA (Amended Settle Agreement) would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."

Back to the drawing board.

[GA Russell]

Big news.

I've never read a detailed account of the proposal. I wonder if it would have been approved if 1) it did not give Google an advantage over its competitors; and 2) the copyright holder must be known and actively protecting his rights.

[pdurrant]

Best news I've heard for a while. Good for Judge Chin. There's a nice summary at Teleread

Orphan works are a problem, but giving a single commercial entity the sole right to explot them was never a good idea. (Not to mention also giving it the right to exploit any other book, until the owner objected!)

[Kali Yuga]

Yep, looks like a good ruling to me as well.

I also agree orphan works need to be addressed, but this has to be done via legislation rather than in a settlement between parties which don't hold the copyrights in the first place.

[kennyc]

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

[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.

[JeremyR]

While I pretty much view Google as a James Bond-ish Supervillain, in this case, basically it means the world is losing access to a lot of information.

Copyright was meant to enrich the world by giving authors an incentive to write in the first place, being able to profit from their labors.

Not shackle the works forever, which benefits not the original authors in most cases, but whoever bought the rights from the heirs (often rather shadily, too).

[spellbanisher]

Unfortunately, google has perhaps done irreparable damage already. When Google first made its settlement with the authors guild, there was legislation in congress that would have provided a means and a procedure for orphan works to enter the public domain. But when google and the guild settled the orphan works legislation died in the house. If our politicians were not such corporate lackeys we could have had the library of congress dealing with the orphan works, instead of a corporation and a guild whose thousands of members are trying to circumscribe the rights of millions of nonmembers.

[Elfwreck]

Much as I want to find a way for orphan works to be used, the proposed legislation had some big problems, including turning over copyright registration to private firms. It basically came down to "if you don't register your works with this for-profit firm, you'll lose copyright protection, because anyone will be able to claim they did a search for the owner/s and didn't find them."

The obvious problems with orphan works is why I think Disney won't succeed in extending the mouse-life again; too many people, including politicians, are aware that there's a lot of works that *should* be available to the public, and that giving protection to a handful of very profitable works no longer justifies locking all those other works away.

[Kali Yuga]

Originally Posted by spellbanisher

When Google first made its settlement with the authors guild, there was legislation in congress that would have provided a means and a procedure for orphan works to enter the public domain. But when google and the guild settled the orphan works legislation died in the house.

Uh... I'm not really sure how you came up with that sequence of events.

As also happened in the UK, professional photographers (far from a powerful corporate interest btw) lobbied against the bill. Photographers constantly get their work get ripped off, and they were concerned that the law as written would provide a massive loophole for art directors, ad agencies and other commercial entities.

The opposition had nothing to do with the Google Books issues, as far as I can tell. Nor did big corporations have much to do with it not passing into law.

I might add, it's not like Google has to delete the scans; they just can't use the material until copyright expires or they bother to get the rights. Most of the material was inaccessible anyway, since it's basically sitting in university libraries.

Legislators need to figure out a way to deal with orphan works that won't gut copyright or put independent content creators out of business. It's not an easy task. But it's not only better, but it's legally and constitutionally required for this to be fixed via legislation rather than in a courtroom.

[Elfwreck]

Originally Posted by Kali Yuga

Photographers constantly get their work get ripped off, and they were concerned that the law as written would provide a massive loophole for art directors, ad agencies and other commercial entities.

I remember this, and several other groups pointing out that the way the law was set up, Disney would have almost no risk in grabbing an "orphan" work, running a few internet searches, and using it if the searches turned up blank, even if the owner showed up later to demand they stop, but if John Q PublicDude grabbed something he thought was in the public domain, and it turned out to belong to Disney, Disney could still demolish him. It was very much skewed in favor of whoever had the biggest lawyers.

The opposition had nothing to do with the Google Books issues, as far as I can tell. Nor did big corporations have much to do with it not passing into law.

This is the first I'd heard of any connection to Google. Only possibility I can see, is that when the orphan works bill was shelved, its proponents might've said, "meh, Google is working out something; we'll wait for that to go through before we get on to the next phase." But there's nothing in the Google settlement that connected with the orphan works bill.

I might add, it's not like Google has to delete the scans; they just can't use the material until copyright expires or they bother to get the rights.

Sort of. If the can't reach an agreement that a judge will accept, the Author's Guild could, theoretically, seek a ruling where Google pays them or copyright owners $150,000 for each book they scanned, and has to delete them from their archives as illegal copies. But I don't see that happening; pretty much nobody wants those scans gone; they're just arguing over who has the right to use them & profit from them. (Which seems a very valid thing to argue over.)

Legislators need to figure out a way to deal with orphan works that won't gut copyright or put independent content creators out of business. It's not an easy task. But it's not only better, but it's legally and constitutionally required for this to be fixed via legislation rather than in a courtroom.

Only solution I can see is to throw out the Berne convention and require registration of copyright, perhaps after an initial free period. 25 years of "everything is copyrighted," and then you have to register it to keep your rights--that cuts the orphan work population down to a manageable amount with likely-findable rights owners.

The problem with life+70, unregistered, is trying to find someone's legal heirs up to three generations after their death, and then trying to get those heirs to understand their role in the copyright process. (My father's mother died over 35 years ago. If it turned out she wrote a poetry book in her youth, I have no idea who'd have the rights to it... her three sons? Their six children? Their unknown-number of children?)

[squawker]

I see this as a huge loss for the public. Who does it benefit to shut off online access to orphaned works? Just because no other company has the ability to provide such access doesn't mean that Google should be barred by law from providing such access.

I am so jaded about Congress ever doing anything in the public interest on the copyright front. The idea that we should leave innovation up to our Congress is just lunacy. They simply lack the ability to act in the public interest.

If Google doesn't serve this niche, no one will, and now they have their hands tied.

Perhaps if Google spreads around enough money in campaign contributions, however... And, since the Citizens United decision, there's nothing stopping them from issue advertising...

[HarryT]

Originally Posted by squawker

I see this as a huge loss for the public. Who does it benefit to shut off online access to orphaned works? Just because no other company has the ability to provide such access doesn't mean that Google should be barred by law from providing such access.

There's the small point that this is flagrant copyright violation. Google are basically scanning and selling books without the permission of the copyright holder. You just can't do that, no matter how big a company you are.

[boxcorner]

Google books agreement torpedoed by US court
BBC News : Business - 23 March 2011
bbc.co.uk/news/business-12827031

[Elfwreck]

Originally Posted by squawker

I see this as a huge loss for the public. Who does it benefit to shut off online access to orphaned works? Just because no other company has the ability to provide such access doesn't mean that Google should be barred by law from providing such access.

They're not, yet; they're just not allowed to profit from offering that access in quite the way they wanted.

For "who does it benefit"--owners of orphaned works, who might like to reclaim their rights and might not know how. The settlement allows Google to profit from their works without any requirement that Google even look for them. Who also benefits: other companies that might like to figure out a way to offer orphaned works to the public.

Yes, it'd be nice to have access to those works. But the way copyright law currently is set up, it's illegal to just start selling someone else's work without permission, even if you don't know if they'd object or not. And the settlement allows Google--but no other companies--to do exactly that.

If Google doesn't serve this niche, no one will, and now they have their hands tied.

They & the authors' guild have the option of coming up with something else, that's a bit less of an end-run around copyright law, and less close to establishing Google as an international monopoly on orphaned works.