Internet Archive sued by big publishers

[Quoth]

Originally Posted by fjtorres

The actual legal issue being litigated was that Google, in order to provide book excerpt snippets in their search engine, created a database of scanned and indexed books. The AG position was that any use of the books other than individuals paying for the book was illegal.

After pruning away the irrelevancies and money grabs, the ruling was that inasmuch as Google's database was not distributing the scans and merely using it for internal purposes, to generate the excerpts (which are *explicitly* permitted under Fair Use legal doctrine) Google was not *distributing* anything that wasn't permitted by Fair Use..

Except Google IS indexing the entire book and what they are doing is far beyond fair use. It's possible to download the entire book, because unlike a snippet for a review, quote or research work, the entire work is indexed and live on their servers, completely. Stupidly they also seem to use features of the client's browser. Google misrepresented what they are doing as Fair use as they are monetising the entire text with their search engine.

[fjtorres]

Originally Posted by Quoth

Except Google IS indexing the entire book and what they are doing is far beyond fair use. It's possible to download the entire book, because unlike a snippet for a review, quote or research work, the entire work is indexed and live on their servers, completely. Stupidly they also seem to use features of the client's browser. Google misrepresented what they are doing as Fair use as they are monetising the entire text with their search engine.

No, by American law making a derivative is not by itself a crime. Particularly when it in no way diminishes the market for the original or directly competes with it. There is nothing wrong with monetizing the entire text, off-camera, as it were. The crime is, again, *distributing*.

(You familiar with "Clean Room" reverse engineering of software? Done right it is legal. There, Google didn't do it right. Different case. And they rightly lost.)

What you are used to seeing in copyright and fair dealing is not how copyright and fair use work on this side of the pond.
It has to do with the rationale for copyright on both sides.

Euro copyright is about enriching creators for their work. They create, they get paid. Period.

American copyright is about encouraging creation for the common good. It's Constitutionally established, too. The temporary monopoly on the product is just a means to that end. As a legal corollary, the Fair Use framework has naturally emerged from that intent and with it, over time, its four legal tests pointed out above.

Is google monetizing other people's creations? Yes, but they're not competing with them, taking sales and money away from them in any way. Instead they are taking the existing content and they are creating something new, something entirely different for an entirely *different* purpose.

That is *exactly* what Fair Use is for. It allows the creation of parody, pastiche, critical analysis, and yes, indexes and even abstractions. Fair use is why we have Nero Wolfe, Jules deGrandin, and other "consulting detectives" and had them while all of the Sherlock Holmes books were under copyright. They met the tests.

It is also why we have THE WIND DONE GONE...

https://www.rcfp.org/publisher-can-r...-parody-novel/

...among many other things.

Like Super-folks:

https://en.m.wikipedia.org/wiki/Superfolks

There are generally clear limits to Fair Use, though:

Like the convoluted and ironic history of the first, true Captain Marvel:

https://en.m.wikipedia.org/wiki/Capt...vel_(DC_Comics)

DC comics and Fawcett fought a ten year fight over Billy Batson's alter ego for good reason. While tbe character himself was somewhat different from Superman, the covers of some of *comics* that featured him were admitted direct copies of earlier Superman covers. That sent beyond inspiration and failed the transformation test.

(As it ended up, DC now owns the copyright to both charwcters and their published stories, but not the trademark to Captain Marvel, which Marvel squatted on in the 60's. They've kept it by publishing a steady stream of different characters with the name, all with indifferent results. But enough to keep the trademark. Trademark law is a whole different framework.)

So back to Google and the IA: Google's database passed the tests, it was ttansformative, it didn't compete with the content it was derived from, it wasn't created as a mere copy, and it didn't lead to the distribution of anything but quotes. Yet it helps people find books tbey can then buy.

Google makes money providing a new useful thing and cfdating it was not trivial.

In contrast, IA's aren't substantially transformative: today it is trivial to digitize a title into ebook form. Anybody with a scanner and a couple hours can do it.

On the other hand, they aren't distributing trivial bits of the content but the entirety of it. And by giving it away they are competing with legally licensed instances of the product and the stated intent of degrading copyright law is by implication meant to reduce the value of tbe original.

That's four for four tests that Google (love 'em or hate 'em--and I'm closer to the latter) passes and IA fails.

It's not even a pale shade of gray.

[pwalker8]

Originally Posted by Quoth

Except Google IS indexing the entire book and what they are doing is far beyond fair use. It's possible to download the entire book, because unlike a snippet for a review, quote or research work, the entire work is indexed and live on their servers, completely. Stupidly they also seem to use features of the client's browser. Google misrepresented what they are doing as Fair use as they are monetising the entire text with their search engine.

Fair Use was an exception to the copyright law that was carved out by judges and later codified. Basically fair use is whatever the judge says it is. In this case the judge decided that indexing should be considered fair use. American copyright law is very different than European copyright law.

[barryem]

Copyright is obviously the law and making copies of copyrighted material and distributing them without persmission is obviously illegal. But real life is rarely that simple.

Copyright law in the USA is based on the Constitution giving rights to creators for a limited time. The same people who created that constitution set that limited term at 14 years and allowed a single 14 year renewal. Given that most books stop selling after a few months, a year at most, with only very rare exceptions, that seems like overkill but it's what they set so that's that.

Of course copyright holders can make a little bit more every now and then if that's increased so they set about lobbying for those increases and they got them, over and over and over again. Unfortunately we readers don't have lobbyists.

Now we've reached the situation where books have a very good chance of being forgotten and usually are before they become public domain. Very nice for the publishers.

What the publishers did was, at least on the face of it, legal. It probably involved a lot of illegality to get it done, trips and girls and parties for congressmen and senators, but I don't actually know that. I believe it's probably true.

I like the idea of writers getting paid for their work. I love reading and I want good authors to write good books for me and for that to happen they need to make money from it. But it wasn't the authors who got the copyright terms increased. I'm sure they were happy about it but it was the publishers who got it done. It's kind of hard for me to feel sorry for the publishers or to care a lot about their rights. In the past publishers made it possible for me to have books to read but that hasn't been true for a long time.

The world of books is changing. I'm not sure it's for the better but maybe it is. And maybe it isn't. The publishers are stealing from us and from the writers. They're mostly doing it legally though not always. They cheat a lot.

Another example of cheating is the large number of new books by dead authors, or even live authors hiring ghost writers, such as James Patterson. This is terribly dishonest.

The fact that there's so much swindling in the publishing world doesn't give anyone the right to steal from them. We need more honesty, not less. But if we're going to complain about dishonestly let's complain about the big, long term dishonesty and not the good guy who's now maybe doing something wrong to make a point. Maybe he'll make his point. Maybe he'll lose everything but if he does we lose a lot more.

Barry


Barry

[SteveEisenberg]

Originally Posted by pwalker8

Basically fair use is whatever the judge says it is.

Yes, although the publishers want a jury trial - check page 52:

https://assets.documentcloud.org/doc...704/4388-1.pdf

I wonder if there’s some deep significance to wanting a jury. Is that normal for a case like this?

[fjtorres]

Originally Posted by barryem

The world of books is changing. I'm not sure it's for the better but maybe it is. And maybe it isn't. The publishers are stealing from us and from the writers. They're mostly doing it legally though not always. They cheat a lot.

Another example of cheating is the large number of new books by dead authors, or even live authors hiring ghost writers, such as James Patterson. This is terribly dishonest.


Barry


Barry

The book publishing/distribution business is indeed changing. It s changing from the printer-centric, middleman-controlled model of the past two centuries, to an author-centric market-driven model. The transition is not going to be instantaneous but it is well on its way and the current crisis is boosting it. How much of the boost will stick and how soon the tipping point of the transition arrives is still tbd. It might be this decade but the next is more likely.

The transition began before Kindle but Kindle and its brethren boosted it.
The aftermath of the current crisis will add another boost or two. (Hint: maybe half the bookstores won't reopen. The signs are all over.)

Oddly enough, the length of copyright the publishers lobbied for is one of the drivers for the transition: it enables books to be economically valuable over the long haul: the long tail model on small steady sales adding up over time, in contrast to the slot-based "fresh produce" model of the older, 17-year copyright that dominated until the '50's, that depended on big, fast, early sales and resulted in most books going out of print and out of the market within a very short time.

So the publishers got their way; lifelong copyrights for perennial books but it also set the stage for the ongoing transition and technology changed and production and distribution of content changed with it. Size is no longer to a publisher's benefit: focus and market responsiveness is. Niche market understanding is becoming critical. (Indeed, big size is an underappreciated handicap, as highlighted by S&S's inability to find takers. It may or not be too big to fail but it's pretty clearly too big to prosper. Their hits aren't outweighing their duds and overhead.)

For many authors willing to do a bit of extra work traditional publishers are becoming optional. Mostly because of the extended copyright that allows authors to be paid long after a book's first appearance. For many established fanbase and a deep catalog are a more effective path to solvency than an industry-standard contract. Slow and steady is pushhing the tortoise ahead.

Oddly enough, two related pieces came out this week dealing with the forces driving the transition. One is creator-centric:

https://www.deanwesleysmith.com/why-...al-publishing/

The other, publisher-focused:

https://kriswrites.com/2020/06/03/bu...romotion-2020/

In both cases the long tail of an author *slowly* monetizing a book over years and decades is key. One case comds to mind where length of copyright made a big difference:

Tolkien spent the bulk of his life creating Middle Earth yet the books didn't really take off economically until decades after release. His work benefitted his children more than him and encouraged his son to shepard the family legacy and organize unpublished material so we not only got The HOBBIT and LoTR but also SILMARILLION and his other posthumous works. Not every posthumous work is a scam, though many are.

Appropos of which, Patterson is actually honest with his ghost written stories. He properly credits his co-writers and while most of his collaborators haven't established careers of their own, a couple have. And co-writers they are: the story/series concept, plot, and chapter breakdowns are his. What he farms out is the wordsmithing, which he also edits. And he makes it clear which books he writes fully and which ones he farms out. What his fans (and they are legion) need to look out for is the day when he goes all TOM CLANCY and sells off his name so that JAMES PATTERSON and XXXX becomes JAMES PATTERSON'S YYYYY BY XXXXXX.

So, anyway, the changes are happening and accelerating...

https://publishingperspectives.com/2...eport-covid19/

...and that value of extended copyright is a driver is the changing dynamics.

Technology and market forces on their own are rebalancing the book world (as well as the other media markets) without need for scammers breaking the law, either by price-fixing conspiracies or "public domain-ing" other people's property.

It'll take a while but a newer, healthier normal is on its way.
On its own.
IA's scam serves no ourpose.

[SteveEisenberg]

Originally Posted by fjtorres

Tolkien spent the bulk of his life creating Middle Earth yet the books didn't really take off economically until decades after release.

Your post applies best to timeless works of imagination requiring little real-world research. They indeed do not need a publishing infrastructure.

Originally Posted by fjtorres

Appropos of which, Patterson is actually honest with his ghost written stories.

Here I agree with you.

[fjtorres]

THE HOBBIT was released in 1937 to critical acclaim and minimal economic return.
Lord of the Rings was written on his own dime and with no external support and minds mal economic return until the mass market paperbacks and the late 60's. Tolkien didn't become TOLKIEN!!! until very nearly his death in 1973.

All credit is his and his son's.

[ZodWallop]

Originally Posted by barryem

Another example of cheating is the large number of new books by dead authors, or even live authors hiring ghost writers, such as James Patterson. This is terribly dishonest.

Originally Posted by fjtorres

Appropos of which, Patterson is actually honest with his ghost written stories... What his fans (and they are legion) need to look out for is the day when he goes all TOM CLANCY and sells off his name so that JAMES PATTERSON and XXXX becomes JAMES PATTERSON'S YYYYY BY XXXXXX.

I'm not a fan of either. I have never read a book by Patterson or Clancy. I really would prefer they don't turn their names into brands. But if they are going to do it, at least both seem honest. Even things like Tom Clancy's Op Center or Tom Clancy's Net Force credit the actual author*

Now V.C. Andrews, who died in 1985 but has continued to put out V.C. Andrews books, that's dishonest.

*There was a regrettable time where there was a Tom Clancy 'house name' David Michaels. The 'Tom Clancy's' brand didn't start that way and it's not that way now.

[fjtorres]

Originally Posted by ZodWallop

I'm not a fan of either. I have never read a book by Patterson or Clancy. I really would prefer they don't turn their names into brands. But if they are going to do it, at least both seem honest. Even things like Tom Clancy's Op Center or Tom Clancy's Net Force credit the actual author*

Now V.C. Andrews, who died in 1985 but has continued to put out V.C. Andrews books, that's dishonest.

*There was a regrettable time where there was a Tom Clancy 'house name' David Michaels. The 'Tom Clancy's' brand didn't start that way and it's not that way now.

The Tom Clancy guys weren't fooling anybody.
In fact, except for the first book or two (heavily rewritten by ghosts) Clancy worked more like Patterson. Openly selling his name was his way of doing away with even that much involvement.

That kind of branding is more common in video games, with things like Sid Meiers CIVILIZATION line, TONY HAWK, and yes, TOM CLANCY. Considering the latter never were game developers it was pure branding and everybody knew it, unlike books shere ghosting was and probably still is all over. Often with house names.

[Tex2002ans]

Also see Techdirt's fantastic article on the topic:

Major Publishers Sue The Internet Archive's Digital Library Program In The Midst Of A Pandemic

[ZodWallop]

Originally Posted by fjtorres

The Tom Clancy guys weren't fooling anybody.
In fact, except for the first book or two (heavily rewritten by ghosts) Clancy worked more like Patterson. Openly selling his name was his way of doing away with even that much involvement.

Sorry. Can you clarify what you mean?

Tom Clancy didn't write the Tom Clancy's Op Center series, or Net Force or any of the novelizations of the Tom Clancy's video games. That is known and acknowledged.

But are you saying that he didn't write, say... the books published under his name from The Cardinal of the Kremlin onwards? If so, I don't buy it. From The Teeth of the Tiger forward, the 'co-author' is listed on the cover. Why would they do that if the books were already being ghost-written?

Same think for James Patterson. Why bother listing the co-author sometimes if all the books are ghost written anyway?

[fjtorres]

Originally Posted by ZodWallop

Sorry. Can you clarify what you mean?

Tom Clancy didn't write the Tom Clancy's Op Center series, or Net Force or any of the novelizations of the Tom Clancy's video games. That is known and acknowledged.

But are you saying that he didn't write, say... the books published under his name from The Cardinal of the Kremlin onwards? If so, I don't buy it. From The Teeth of the Tiger forward, the 'co-author' is listed on the cover. Why would they do that if the books were already being ghost-written?

Same think for James Patterson. Why bother listing the co-author sometimes if all the books are ghost written anyway?

The story I heard is that his wordsmithing was poor and even on the first book "editing" amounted to a rewrite. The storytelling was excellent but the prose wasn't. A lot of newcomers have similar issues and outgrow them in later books. Clancy didn't. The core was great but the stories still needed extensive rewriting so they started crediting the ghosts.

Over time he did less and less until he could barely be listed as writing the story. But the books sold by the million. Eventually he tired of the game and sold the brand. By then the games were outproducing the books anyway.

Book credits don't always reflect the work that went into them. Sometimes they are true collaborations, sometimes they are edits turned collaboration, and sometimes the big name author only provided the concept, setting, plot, or none of the above. Just lending their name to goose sales.

Again, Patterson is honest about how he runs his book mill.
Not everybody is.

[ZodWallop]

Originally Posted by fjtorres

The story I heard is that his wordsmithing was poor and even on the first book "editing" amounted to a rewrite. The storytelling was excellent but the prose wasn't. A lot of newcomers have similar issues and outgrow them in later books. Clancy didn't. The core was great but the stories still needed extensive rewriting so they started crediting the ghosts.

Over time he did less and less until he could barely be listed as writing the story. But the books sold by the million. Eventually he tired of the game and sold the brand. By then the games were outproducing the books anyway.

The problem with your narrative is that it doesn't match reality and doesn't really make sense.

Clancy's first book, The Hunt for Red October was published by the United States Naval Institute Press, not exactly a publisher of popular bestsellers. They figured they would sell 5,000 copies, but the book was (for them) a runaway success. It sold 45,000 copies.

The book didn't really take off as a best seller until President Reagan praised it.

The point is, that doesn't sound like a book where a publisher figured they had a best seller on their hands. And at that point, Tom Clancy wasn't anyone special. If any of what you said was true, it would have made sense to team him up with a surer hand and publish them as a team.

Regarding the video games, Clancy was asked to help in the development of a video game based on his book SSN. From there, he got a few business partners and founded a small studio called Red Storm Entertainment. I'm not a Clancy expert, but I was very into video games and I do remember when LucasArts and Red Storm were independent studios.

Given all that, I don't buy Clancy (or Patterson for that matter) having ghost written works appearing solely under their byline. As I mentioned, I do remember when Teeth of the Tiger came out and it was clearly not written by Clancy. Grant Blackwood's name appeared on the cover.

They turned in to fiction factories, but not in the way you seem to think they did.

[fjtorres]

Originally Posted by ZodWallop

The problem with your narrative is that it doesn't match reality and doesn't really make sense.


They turned in to fiction factories, but not in the way you seem to think they did.

I said what I heard. That he wasn't particularly good and never had anything published without major fixingm
Clancy was a car salesman. Maybe he was the one got the "co-writer" to fix it. But remember it's not just the big outfits that "fix" books. Small specialty pubs do it too.