More on the Copyright Issue

This week, I received an email from a group identifying itself as COCOA (Copyright Owners' Control of Access) asking that I sign a petition opposed to Google Print's library copying project. The group is led by Andrew Burt, who began the Critters' sci-fi critique website. I do not plan to sign that petition, and this blog is about my reasons.

As you probably know by now, Google Print signed an agreement in December of last year with five of the world's libraries to begin digitizing their collections of books. This announcement was met with anger and two lawsuits by groups of authors and publishers (filed in September and October) who claimed copyright infringement. Since that time, another group calling itself the Open Content Alliance (OCA) also announced their intention to begin digitizing books, although saying that they would begin with out-of-copyright books before addressing the copyrighted works.

USA Today had three editorials/articles on 11/7 and 11/8 on this issue. The newspaper's stand can be summarized by the titles of one article and one editorial: "Critics Should Grasp Google Projects Before Blasting Them" and "Needless Fight Threatens Google's Online Library."

On Wednesday of this week, the online magazine, The Salon (www.salon.com), had a lengthy article on this subject. The article was well thought out and is worth a read. The author, Farhad Manjoo, did a good job of summarizing the three groups of books involved:

1) "Work published before 1923; copyrights on these books have expired, and the books' contents, therefore, are in the public domain, free for anyone to use in any way."
2) "Books published after 1923 that publishers have already given Google permission to include--but because these books are under copyright, Google limits their functionality in order to reduce the chance that the service will negatively affect book sales."
3) "A third category of books, those that are still under copyright but that publishers have not given Google permission to include in its library. When Google, in the course of scanning books at a library, comes upon a book published after 1923, publishers insist that the company should set it aside and get permission first."

It's that third group of books that are the causing all the fuss. "In many cases the publishers and rights-holders of these books are unknown. There is no national registry of copyright holders in the United States." Siva Vaidhyanathan, a copyright expert at New York University, says, "It's impossible for a company like Google, or a historian . . . or anyone to find out who owns what. Even publishers don't know what they own. It's just impossible."

Google wants to approach that third category of books by making a few sentences available to the searcher--just enough to let them know if the book is what they're looking for. Then Google can direct them toward the book in question. They will not permit the entire text of any work still under copyright to be viewed during a search. In addition, they have indicated that, if a rights-holder surfaces and demands to "opt out," Google will honor that request. It is this "opt out" instead of an "opt in" approach that infuriates many authors and publishers.

Remember--on Monday I suggested that you keep an eye on Tim O'Reilly? Well--lo and behold--Tim is quoted repeatedly in The Salon article. "O'Reilly is one of [the] few publishers who support Google's plan, and he likes it precisely because he thinks it will shed light on these little-known titles whose rights-holders are hard to track down. 'One of the biggest arguments for Google's approach is that it is the only solution that solves a hard problem,' O'Reilly says."

Fred von Lohmann, an attorney with the Electronic Freedom Foundation, also sides with Google. He believes that publishers have no argument. "'Google helps you find books, and if you want to read it, you have to buy the book. How can that hurt them [the publishers]?'"

Of course, Google is not doing this project out of the goodness of their hearts, although it is completely in line with their open source approach. They are the number one search engine in the world and want to retain that position by expanding the amount of material covered by their searches. Other companies, like Yahoo and Microsoft, are hot on their heels (both Yahoo and Microsoft have signed on to the new initiative with OCA).

At the same time, Google does not plan to run ads on the pages of the Google Print project--supporting their claim that they are not *directly* making money from this program (and bolstering their legal position when the pending lawsuits drag them into court).

The article contains the flip side of the argument with opponents of Google Print being quoted as well. Most of their arguments stem from a refusal to permit their work to enrich Google's value. As I read their comments, I found myself remembering my Italian grandmother shaking her finger at me and saying, "Lei taglia il suo naso per dolere la sua faccia." Rough translation: "You're cutting off your nose to spite your face." Hello??? Once your book is off the shelves of booksellers, you lose the ability to make any more money on it unless you can sell it again to a new publisher. No money from the sales of used books on the secondary market comes to you. With Google Print allowing readers to find your book on the Internet AND with POD technology, you have the potential of that book earning money for an indefinite period (This is also an excellent reason for you to pay attention to the language surrounding when rights revert back to you in your contract. Make sure that you don't give up the ability to republish the book later with a new publisher because of the language your first publisher uses to define what is "still in print" and when the rights revert).

The outcome of any legal battle is uncertain. Both sides have precedent that they can point to and both sides are fighting a public relations battle right now. I encourage you to read as much as you can on the subject because this is an important one for authors everywhere.

One of the things I find most compelling about the Google argument is the list of five partners with whom they signed that agreement last December: Harvard, Oxford, Stanford, the University of Michigan and the New York Public Library. Do you really think any of those cultural bastions would have signed on to the program if they thought it violated copyrights?

The Salon's position is summed up in the close of the article following a quote from Lawrence Lessig, a Stanford law professor and copyright expert: "'Sure Google will profit from it. Good for them. But if the law requires Google (or anyone else) to ask permission before they can make knowledge available like this, then Google Print can't exist.' And if Google Print can't exist, maybe it's time to reexamine the law."

More on this tomorrow.