Re: Google Book-Scanning Pact to Give Libraries a Say in Price - NYTimes.com

[David Farber <dave () farber net>]

Begin forwarded message:

From: James Grimmelmann <james () grimmelmann net>
Date: May 21, 2009 5:27:15 PM EDT
To: dave () farber net, brett () lariat net
Cc: ip <ip () v2 listbox com>
Subject: Re: [IP] Re:   Google Book-Scanning Pact to Give Libraries a  
Say in Price - NYTimes.com

> From: Brett Glass <brett () lariat net>
> Date: May 21, 2009 11:04:29 AM EDT
> To: dave () farber net, "ip" <ip () v2 listbox com>
> Subject: Re: [IP] Google Book-Scanning Pact to Give Libraries a Say  
> in Price - NYTimes.com
>
> Dave, and everyone:
>
> I am astonished by the entire Google book licensing scheme.
>
> Section 8 of the US Constitution says that I, as an author, am  
> entitled to be granted the exclusive rights to my work for a limited  
> (although constantly expanding) period of time. It does NOT  
> authorize the government to grant rights to that work to any third  
> party. Doing so would not only exceed the powers granted to Congress  
> by the Constitution (and thus be unconstitutional), but would also  
> be an unconstitutional "taking" under the 5th Amendment.
>
> I am astonished that the government would even consider granting to  
> a single corporation -- most especially Google -- the exclusive  
> right to use my works without my consent. I want companies to be  
> able to bid for that right. What's more, given that Google, since  
> its merger with DoubleClick, is the number one source of spyware  
> "cookies" on the Internet and is lobbying in DC to regulate and  
> destroy my business as an ISP, Google is the company to which I  
> would be least likely to agree to license my work.

I'm hardly a big fan of the settlement, but I do need to defend it  
from some of these charges.

The Constitution doesn't "entitle" authors to anything; it merely  
authorizes Congress to issue copyrights to authors. If we had no  
copyrights whatsoever, that would be just as constitutional as the  
system we have.  That system includes plenty of exceptions and rules  
that "grant rights" to "third part[ies]": section 108 gives of the  
Copyright Act includes special privileges for libraries, section 115  
lets musicians record cover versions, section 116 creates a compulsory  
license for jukeboxes, and so on.  There are plenty more examples, but  
let's not forget section 512, which grants ISPs like Brett's immunity  
for transmitting content at the direction of others.  The government  
has plenty of power to shape the contours of copyright to limit the  
scope of authors' rights; those limitations, by and large, are not  
takings.

As for the settlement itself, authors and publishers who, like Brett,  
don't want to license to Google, can opt out of the settlement.  (The  
new deadline is September 4 -- see the official site at http://books.google.com/booksrightsholders/ 
 for more.)  Even if they don't do anything by then and later change  
their minds, they still "exclude" their books from being displayed as  
part of Google's publishing programs.  Brett and those who feel as he  
does are still able to demand that Google and other distributors bid  
for the right to distribute their works.

Where the settlement gets problematic -- and here, we're probably in  
agreement -- is when it gets to the "orphan" works, whose copyright  
owners can't be found.  Since they can't be found, a fortiori, they  
can't object.  Google would get a license to sell their books online,  
and that license would indeed be effectively exclusive.  This aspect  
of the settlement would turn Google into a publisher without  
competition, without needing to get permission from anyone.  That's  
dangerous for competition, dangerous for authors and publishers,  
dangerous for libraries, and especially dangerous for readers' privacy  
and intellectual freedom.  The DoJ has started to pay attention to  
these issues, and Google has started to take steps (such as its recent  
agreement with Michigan) to address some of them.

James





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