Plus ca change, plus c’est la meme chose (GBS again) November 17, 2009
Posted by Kevin Smith in : Uncategorized , add a commentIn the brief time since the Amended Google Books Settlement was filed with the court (on Friday the 13th) and released to the public, there has been a flurry of commentary from a variety of perspectives. Two interesting themes have emerged, however, from those on both sides of the great debate over whether the Google Books project is a good thing or a bad thing. First, both sides seem to acknowledge that the changes have not been all that substantial. Second, no one seems to think that the debate and legal maneuvering is really over.
Here is a quick look at what I perceive to be the major changes.
First, and probably most significant, the Settlement is now very clear that it applies only to books registered for copyright in the US or published in the UK, Canada or Australia. This is an obvious attempt to avoid the objections and potential legal complications of including in the new Google products books subject to different copyright regimes and different author expectations; this comment on the Stanford Cyberlaw blog calls it “a policy-oriented maneuver intended to remove political pressure coming from abroad.” It is interesting to consider what this means for the actual Google Book search results. Will we continue to see snippets only of “foreign” books scanned by Google in the free database? If so, does that indicate that Google really is continuing to assert fair use in some cases? Or will these books disappear altogether? In any case, we know that under the new terms, such works from other countries will not be part of the institutional subscription database, and that fact will substantially lower the value of the product. Many of the works that will now be excluded are the very ones that research libraries have the most difficulty obtaining via interlibrary loan, so they are ones we were most counting on finding in the Google subscription database. We must expect that the pricing of that database will be adjusted to reflect a significant decrease in value offered.
The next important thing to note about the amended settlement is what it does not do. It does not address the concerns over reader privacy that have been expressed by many groups. The Electronic Frontier Foundation expresses its disappointment about this lack of a privacy plan here. In a conversation about this topic yesterday, a colleague of mine made the point that for Google to offer a privacy plan for this product would beg the question of privacy policies enterprise-wide, and that is a discussion Google, which depends on targeted advertising, does not want to have.
On the positive side, the amended settlement does clarify that rights holders can elect to allow free availability of their out-of-print but still in-copyright books, or to have them released subject to a Creative Commons license. This will be a significant benefit to academics who have retained or reclaimed copyright in their own books; unfortunately, that is a much smaller class of authors than it should be.
In many ways the heart of the settlement, its huge compulsory license to Google to commercialize orphan works and other unclaimed titles, has not changed much. There is a nice discussion of this aspect of the matter in this New York Times article. The basic change being made is some restriction on how the money generated by sales of these works can be spent, and the appointment of an independent “fiduciary” to the Books Rights Registry board to protect the interests of this immense unrepresented class The fundamental legal problem of an inappropriate use of the class action suit to create this license does not, and probably cannot, change. Without that license, there is little if any incentive for the parties to bargain at all.
The great unknown in all of this is whether the Books Rights registry will be able to license other parties to exploit orphan works in ways similar to the opportunity the settlement creates for Google. The provisions of the first settlement that had been known as the “most favored nation” clause, which said that the BRR could not give anyone else more favorable terms than Google got, has been removed — see the changes in sections 3.8(a) and 6.2(b) in the above-linked “redline” version of the settlement. So it is now the case that if the BRR can license orphan works at all, it can give favorable terms to other parties. But that is a very big “if.” As James Grimmelmann explains in this post, it is not at all clear that the BRR will have this authority until and unless Congress acts to resolve the orphan works dilemma legislatively. The NY Times article also seems to believe that this change depends on Congressional approval before the new independent fiduciary can assist with other orphan works projects. So Google likely still has its exclusive position, which could only be threatened by an unlikely combination of Congressional action and very deep pockets.
Overall, it is hard to argue with the title of this article from Library Journal which suggests that the amended settlement agreement makes only minor changes, and, as noted above, the most significant change probably decreases the overall utility of the settlement to academic libraries. The LJ article quotes a spokesman for the Open Book Alliance (which opposes the Google project) to the effect that the settlement is “sleight of hand.” Even allowing for the bias source of this quote, I think it reflects a truth, that Google and its partners (which is what they are, as opposed to opponents, at this point) wanted to change the agreement as little as was necessary to slip by the complaints raised by the Justice Department. As the NY Times article notes, that is really the only critic of the original deal that the settlement is designed to placate. Whether it has gone far enough to satisfy the DoJ is still an open question.
Copyright Reform Suggestions, part 2 March 14, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Fair Use, Uncategorized , add a commentThey are almost five months old but now, and I meant to point them out a long time ago, but the six-point proposal for copyright reform released by Public Knowledge is well worth reading, studying and mailing to your local Congressman.
As has been said before on this site, it is probably passed time that our copyright law be throughly revised and made flexible enough to address new technologies that have come into existence since 1978 as well as to anticipate and accommodate those that have yet to be invented or widely-used. But there is not a lot of political will to undertake a comprehensive copyright reform these days, and the overwhelming influence the biggest content companies seem to wield with major players in Congress suggests that comprehensive reform might do more harm to the interests of consumers and, especially, educators, then good. Until we can reasonable hope for through-going reform in a positive direction, the kind of incremental changes suggested by Public Knowledge seem like the best direction to focus our energies. Although it is fair to call these proposed reforms “more modest,” some of them would be quite radical in practice.
Two of the suggestions made by Public Knowledge will be quite familiar to those who follow copyright issues — fair use reform that would make the four factor test more usable and sensible in today’s digital environment and orphan works legislation to reduce the risk of making productive, socially beneficial works that are not currently subject to commercial availability and whose rights owners are AWOL. One proposal that I have not written about before in this space, but have discussed elsewhere, is that copyright holders should be required to give notice to consumers whenever they are imposing contractual or technological restrictions on a work that takes it outside of the uses reasonable expected under copyright law with its exceptions, including fair use. The principle that consumers should know what they are buying and whether they an use it for reasonably foreseeable purposes is actually quite basic in our commercial law, and neither contracts nor DRM systems should be allowed to defeat reasonable expectations of a purchaser without prior notice.
All of these suggestions — the remaining three are limits on secondary liability, protections against copyright abuse and simplified, fairer licensing rules — deserve our attention and support, at least until a more comprehensive and fair reform of copyright seems possible.
Blogging law February 7, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing, Uncategorized , 2commentsTrying to catch up on interesting developments over the past few weeks, I note the very interesting and wide-ranging discussion going on across several blogs dealing with legal scholarship about the value of blogging in that discipline. It seems to have started with several reports (here on Balkinazation, here on the Volokh Conspiracy, and here on Law Librarian Blog) about the rapid increase in citations to blogs in the legal literature. Lots of interesting questions are raised here. Why are these citations growing? Jack Balkin writes about the assimilation of blogs into the “larger universe of legal writing.” Is there a different ethic and etiquette for citing blogs in scholarly articles? Eugene Volokh suggests that there is and provokes a fascinating chain of replies. His discussion of the ethics of citing unpublished sources continues here. And finally, is this good for scholarship, or the beginning of the end? Brian Leiter writes a long piece on “Why Blogs are Bad for Legal Scholarship.” In spite of the apparent “liar’s paradox” here – telling others not to read blogs in a blog – Leiter makes an interesting argument about the importance of mediation and some way to test and evaluate the expertise of the one whose writing is being cited.
It is also interesting to speculate on why legal scholarship seems to be the discipline in which this conversation is taking place. When I first read about it, I wondered if the unique aspects of legal scholarship, where most of the journals are edited by students rather than by full-time academics, might lead the professorate to feel less proprietary about their publications and thus more willing to experiment outside of the traditional confines of scholarship. Leiter suggests a somewhat different spin on this observation when he writes: “The problem is that reputational effects in the legal academy are mediate by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts… First, one of the major venues for legal scholarship remains the student-edited law reviews” (the second institutional problem is the “journalistic reception” of legal ideas). For Leiter, the problem to which this lack of expertise contributes is the “availability cascade” – “an opinion that appears to be informed gains credibility by virtue of being repeated and thus becoming current in discourse.” For its discussion of this phenomenon alone, Leiter’s piece is worth reading, even while recognizing that blogs are certainly here to stay and scholarship is going to have to find ways to deal with them.
