Google, library books, Usenet, and copyright

[David Farber <dave () farber net>]

_______________ Forward Header _______________
Subject:        RE: [IP] .Google, library books, Usenet, and copyright
Author: Edward Hasbrouck <edward () hasbrouck org>
Date:           14th December 2004 8:39:22 pm

On 14 Dec 2004 at 8:08, "David Farber" <David Farber <dave () farber net>> wrote:

> Author:       "Matthew T. Blackmon" <matthew () blackmon org>
>
> I am concerned that Edward has not read Harvard's own comments on Google's
> presentation of books as regards copyright...

*Harvard* is providing Google only with books out of copyright, but isn't 
the only involved. According to the NY Times, "Each agreement with a 
library is slightly different. Google plans to digitize nearly all the 
eight million books in Stanford's collection and the seven million at 
Michigan." 

Google claims it will limit the portion of each work that can be viewed 
(and saved, copied, printed, etc.) in one session.  But that's what 
Amazon.com said, and e-books assembled (apparently) from Amazon.com have 
already showed up on Kazaa and the like, as reported in the NY Times:
http://hasbrouck.org/blog/archives/000229.html

For more on Amazon.com's "copy protection" (not), see:
http://hasbrouck.org/blog/archives/000054.html

> Author:       "Perry E. Metzger" <perry () piermont com>
>
> The system is designed to let people search and find texts, not to read
> them. 

I think the system is designed to generate ad revenue for Google -- and to 
do so cheaply, since Google doesn't plan to pay the authors any portion of 
those revenues. Google is a for-profit corporation.  

> The mere placement of ads next to search results can hardly
> constitute a violation of fair use. 

I'm not objecting to "search results".  I'm objecting to full-text 
content, as is delivered by the (1) "Cached" links alongside search 
results, (2) "Google Groups" Usenet archives, and (3) e-books and excerpts 
exceeding "fair use".

> Mr. Hasbrouck also complains that Google's republication of Usenet
> archives with ads attached does not constitute "fair use", even though
> it is fairly obvious that without such a system the archives would be
> entirely unavailable 

That's not clear at all, at least to me.  I suspect that if Google and 
itsa commercial predecessors hadn't assembled a library of Usenet archives 
for its profit, a non-profit library would have done so.

> and even though there is no obvious economic loss to the people who's
> postings are made available. 

The loss is the deprivation of any potential revenue authors could make 
for themselves through advertising, licensing, or electronic distribution 
of their works.  The situation is similar for  books. See:
http://hasbrouck.org/blog/archives/000057.html

For "cached" Web content, the largest impact for freelance writers of 
content licensed for distribution on the Web may be the inability to 
generate revenue for successive time-limited licenses.

If I license an article for exclusive display on the Web for 30 days 
(actually a common clause in a print magazine contract), I should be able 
to license it to the same or another publication for a new term, after the 
original license expires.  Or add it to my own Web archive, and get some 
ad revenue from views of my archive.  But it's almost impossible to do 
that when people can simply retrieve the article from Google's "cache" 
(for whihc Google gets ad revenue, none of which does it share with me), 
even after the time-limited license for Web distribution has expired and 
it has been removed from the originally licensed Web site.

> Mr. Hasbrouck also expresses a bizarre notion of
> "fair use" in which a use is not "fair" if it makes a profit 

Whether usage is for profit is legally relevant (IMHO porperly so) as one 
of the factors in detemining what consitutes fair use.  law aside, part of 
my anger comes from the fact that Google is trying to represent this new 
program -- which it hopes and expects, if it is fulfilling its duty to its 
shareholders, will become a profit center -- as a public service, while 
making no attempot at all to share any of the potential profit with those 
who have created the content that makes it possible.

> the paramount concern must be the preservation of intellectual
> property, rather than the public interest. 

That is *not* my view.  Google is acting in its commercial interest, not 
the public interest.  There *are* successful models of collective 
licensing (including those used for distribution of a share of profits 
from music played on the radio in the USA, and in some other countries for 
sharing revenues for photocopying of books). Google has made no attempt to 
establish such a system. 

Some off-list responses have mentioned that Google won't archive Web pages 
that contain specified headers.  But this assumes that she who owns the 
copyright to the content controls the html, which is rarely the case for 
freelance writers except self-publishers.  That's one of the reasons that 
copyright law in the USA was changed from a default that required an 
affirmative copyright claim, to a default that work is copyrighted from 
creation.  "Opt-out" is fundamentally contrary to current copyright law -- 
and properly so, I believe.  

If Google provided a specification for "archive" headers on Web pages and 
Usenet posting instead of "no-archive" tages, I might include them -- 
especially if they included a "Copyright Clearance Center" type of 
specification that archiving is allowed only on condition that a specified 
amount per copy, or specified percentage any (advertising or other) 
revenues from the distribution of archived copies be paid to the owner.

I'm not a copyright absolutist. I would support a shortening of the 
current term of copyright in the USA.  And I don't support vicarious 
liability for abetment of copyright infringement.  (*Most* Napster users 
are/were copyright infringers, but IMHO that shouldn't make Napster liable 
for their infringement.) 

My primary objections are to (1) Google's substitution of an "opt-out" for 
the legally required "opt-in" system of licensing, (2) Google's failure to 
make any provision for sharing its revenue for any of these 3 programs 
(cached Web pages, Usenet archives, and books still under copyright) with 
the authors or other copyright holders, (3) the use of Usenet content in 
ways that the original posters years ago mostly never imiagined, and can't 
reasonably be construed to have implicitly licensed, and (4) Gooogle's 
self-righteous pretension to being a "public servant" when what it is 
really doing is generating profits for shareholders from stealing and 
distributing content many of whose creators and owners would be happy to 
license it for  a small fraction of Google's profit from it.
----------------
Edward Hasbrouck
<edward () hasbrouck org>
<http://hasbrouck.org>
+1-415-824-0214



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