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The Google Books Settlement Culture Clash, and What About Fair Use? - Updated
Monday, February 01 2010 @ 01:06 AM EST

Thursday was the deadline to file objections to the amended Google Books Project settlement agreement, and many have done so, Amazon, the Open Book Alliance (which represents Amazon, Microsoft and the Internet Archive), the usual competitors. Here's The Public Index, which has the filings, including the latest objections filed and a list of those who have requested to speak at the Fairness Hearing on February 18.

Some Authors Guild authors, like Garrison Keillor and Scott Turow are satisfied now, as are the families of John Steinbeck and Woody Guthrie, while others are not happy, and in fact, it's up to each one to decide. Except lawyers are in this, so there are now legal dustups. One author, Ursula Le Guin, has gotten hundreds of authors to sign a petition [PDF] asking the judge to exempt the US from the agreement. That would kill it, of course, but legal filings don't always tell you what a case is really all about. You may have noticed that in the SCO litigations.

The Indian Reprographic Rights Organization (IRRO), a copyright society in India is suing Google over its book scanning. They filed in New York, alleging copyright violations for scanning books without notifying the authors first. Larry Lessig has written the most thoughtful and on-point critique, and he hates aspects of it, specifically what is happening to fair use and to culture if you have to get permission now for use that was in the past not permissions-based, not that he blames Google as much as copyright law and the super-control technology now provides authors. It's well worth reading. The fair use issue was what I was unhappy about when the first version of the settlement was announced, if you recall. And I still feel the same way. But here's who I really blame: publishers. I see it as comparable to Apple trying to set up iTunes and having to deal with the music industry. Remember all that?

Let me show you something that to me is like a metaphor for what is going on. I went to Google, of course, to try to find out what was happening with the latest filings in the litigation, and I found a link that mentioned the Google objections, and it was a link to Publisher's Marketplace. So, OK. I figured I'd like to hear what publishers are saying, to give them a chance to persuade me. Here's what you see when you click on the link:

Miss the point of the Internet much? I mean, really. Why would I pay to find out what Publisher's Marketplace thinks of the Google Books Settlement? And if they want to keep it a secret for only their members, why is it on Google News blogs section? If you want a private club, send out a newsletter or block Google so the rest of us don't get misled. But if they want me to join so I can read, shouldn't they at least give me a taste of the article, so I can decide based on something other than just a title?

I'm not saying the settlement is perfect as is, and heaven only knows Lessig is persuasive. But the fundamental unmovable rock is found in that screenshot. It's a screenshot I'd like to caption: Google Books Culture Clash. I'm guessing it's generational to some extent as well. It says it all.

If you are used to selling words, it may be hard to face up to the reality that not all your words are words people will pay for. I think authors are more used to that thought than publishers, because publishers are more accustomed to making money. It's up to the customer to decide what he or she is willing to pay to read. But it's up to the publisher or author to be realistic about how it makes its offers. And that's why the books out-of-print aspect of the settlement agreement seems like a win for the authors, in that they are currently getting absolutely nothing from anyone and are unlikely to ever do so. I can see why a best selling author might wish to opt out, but out-of-print authors? Why not let the world see if they like your work? If they do, you'll surely get more gigs, and if not, what have you lost? Nothing from nothing is nothing. And it's a shot at a kind of immortality.

You might find interesting in this context a letter from the Authors Guide to its members that it has on its website. It's about a recent statement from Random House, telling its authors that they gave up electronic rights when they signed their contracts years ago. Not so fast, says the Authors Guild, and note who *they* are afraid of, and no, it's not Google:

On the second page, Mr. Dohle gets to the point. After noting that most of Random House's backlist titles grant the publisher electronic book rights (we agree, since most backlist titles are from the past ten years, a period in which authors have generally licensed electronic rights in tandem with their print rights), he writes that "there have been some misunderstandings concerning ebook rights in older backlist titles." He then proceeds to argue that older contracts granting rights to publish "in book form" or "in all editions" grant electronic rights to Random House.

The misunderstandings reside entirely with Random House. Random House quite famously changed its standard contract to include e-book rights in 1994. (We remember it well -- Random House tried to secure these rights for royalties of 5% of net proceeds, a pittance. We called it a "Land Grab on the Electronic Frontier" in our press release headline.) Random House felt the need to change its contract, quite plainly, because its authors did not grant those rights to it under Random House's standard contracts prior to 1994.

A fundamental principle of book contracts is that the grant of rights is limited. Publishers acquire only the rights that they bargain for; authors retain rights they have not expressly granted to publishers. E-book rights, under older book contracts, were retained by the authors....

We are sympathetic with the difficult position the publishing industry is in at the moment. The recession has been tough on book publishing, as it has been on many industries. And everyone with knowledge of the dynamics of the industry properly fears that Amazon's dominance of the online markets for traditional and especially e-books will give it a chokehold on industry profits. Difficult times, however, do not justify this attempt at a retroactive rights grab.

See that? Amazon is who they fear. There was a court case about electronic rights, the letter points out, and you can read it online, Random House v. Rosetta Books [PDF]. And here's the Authors Guild page on the Google Books settlement, where you can find many of the legal filings. In short, while I'm not crazy about what happens to fair use in this digital world, and I seriously think they should incorporate wording about that topic in the settlement, the real problem Google is dealing with isn't that. I think the Random House move makes clear that publishers aren't fighting for authors, any more than the RIAA fights for musicians. It's about the bottom line in old-fashioned business models that are now struggling to stay the way they used to be.

Exhibit A: Publishing Law Rights Center has an article all about the Rosetta Books case, which is fine, but there's no link to the decision itself. See what I mean? It's not hard to find the opinion online, thanks to Google, ironically enough, but they just didn't think of it, I guess. Because in the print world, that would not be what you would do. But online, it's just basic. It's old ways bumping into a brave new world, and it's painful for them. They don't know how to do it, and so they'd like the Internet to cut it out and stop being the way it is.

That's the dream of more than book publishers. Here's an exhibit from the Comes v. Microsoft antitrust case of a few years back, Exhibit 3590 [PDF]. It's a discussion in 1994 with Bill Gates and his executives about the Internet, and it includes an email from Nathan Myhrvold on how Microsoft could in time take over control of the Internet. Here's that part of it:

Ultimately people will solve the technical and policy issues with making the Internet capable of doing commerce -- i.e. intellectual property protection and metering, billing etc., but this is only in its earliest glimmer of comming into being. ...

When you start to assume lots of rich content and transaction services you start to act a lot more like the PC market - standards change slowly, ISV buy in is important, there is value to being a kingmaker funding major new work and evangelizing it etc. That is a role which we can play. Over time I expect to see the following trends to occur: The Internet up to this point has been the last bastion of grad students and public domain software written by academics. As a result it has also been the last bastion of platform independent software since these people wrote code for the Internet with a mindset shaped by the various random UNIX machines in academia, a high concentration of Macs, and then as an afterthought, Windows. Now that the masses are descending on the Internet they will do so with Windows machines. The 'center of gravity' for formats, protocols and so forth will shift toward Windows as the primary platform. The UNIX crowd can circle their wagons for a while and flame away in some forum called, but their time is past. 100,000,000 customers can't be wrong.

Front end software (editors, browsers) will become the key arbiter of formats. If people want to browse spreadsheets they will send Excel files. No bunch of grad students is going to write a public domain spreadsheet viewer that will compete effectively, especially if Excel makes sure that they support use as an Internet browser decently. There are still some formats that will revolve around things which are intrinsically tied to the net, but anything that relies on front end software for creation/display will be driven by that software....

The internet will tend to standardize any software product which depends on proprietary files....

This suggests that we do a lot to make our apps good citizens. This does NOT mean building a full Mosaic clone into each app -- Instead we have to focus on what we have to do to make both authoring and viewing easy....

What do we need to do to make OLE the preferred linking and embedding mechanism across Internet connections. There is a lot to do here and we should be working on it.

Content developers will try to remain platform neutral, tool neutral and format neutral, and for the most part they will fail. Once people start to compete they will increasingly become platform and tool specific if there is any advantage in doing so....

Getting new formats and protocols adopted is going to [be] no different in nature than getting them established in the PC industry. There is no strong central committee, and even if there was one now there is no reason to think it would survive any more than one would in the PC industry. Public domain software has never competed effectively with commercial software, and this will not change here.

Control freaks that they are, they thought they could control the Internet. Have they stopped trying?

Old-fashioned copyright owners want the Internet to cut it out and be about them feeding us content and we sit back and just consume what they send us. After we pay. And agree to DRM.

Of course, it's funny, what Myhrvold wrote, in that they totally missed the boat about the Internet, and about Linux, but that's a good thing. They probably could have killed Linux early on, had they tried. Their arrogance has cost them. It's too late now, hopefully, to just crush it, not that they haven't been trying. They'll have to buy community members to sell out and write their software to run on Windows instead of Linux now one by one, if they can find enough greedy types, and that takes longer even in Microsoft's best case scenario.

But what he wrote is also not so funny. Don't you see efforts to turn the Internet into something only the big corporations benefit from? Like another version of cable tv? Not all of us see entertainment as the most important thing in life. Cluebat for Hollywood. We like to *create* content and share it, not just consume yours. Like I say. It's a culture clash.

And just for the historical record, the software Myhrvold was so dismissive of isn't public domain. It's copyrighted work, but the authors chose to share its use freely with the world, and *that* is what made the Internet happen. Not that people who think in old-fashioned ways, like the publishing industry and Microsoft, ever get that.

Here's another exhibit with more details about Myhrvold's vision of the Internet, Exhibit 5705, and I hope you read the entire thing, but here are some relevant snips:

- Cross platform data only protocols like HTML are very important at the moment. I do not expect this to continue with the same degree of emphasis. Custom protocols, downloaded front end code and platform specific development are bound to occur. Some content (particularly that with low value) will continue in genetic, cross platform tools, but a lot of compelling things will start to dip into custom code and platform specific features. This trend has always occurred in similar situations in the past, when you get two competitors making a product, and you have some platforms that are more popular than others, then one of the competitors is going to succumb to the temptation to abandon cross platform approaches, limit themselves to the most popular platform, but be able to do things that can't be done in a cross platform manner.

- The world of the Internet is rapidly becoming Windows centric because Windows will be the most popular client operating system by a wide margin. This is a 180 degree shift from the historical traditions of the internet which happened to grow up in one of the few communities which is platform-diverse - namely academic computing....

Given this, our natural strategy is to try achieve a number of goals:

- Superset internet protocols and standards with our own value added extensions. As platform specific work is done on the internet, we want it to be done on our platform. As proprietary technology and protocols are used, we want them to be ours - in as many broad mainstream areas as is reasonably possible. We don't need to own every protocol in every area, but we want to be an important player. There certainly is a danger that Netscape, or another company, could establish enough APIs and proprietary protocol extensions that they would wind up owning the "Windows Internet platform". PaulMa is quite correct in comparing this situation to Novell, which sucessfully (sic) established a "sub-platform" (for a set of network services) within the context of our client operating system. This does not mean that Netscape needs to be a direct competitor - I am optimistic that we can have a positive relationship with them - but out of the many possible future directions for them and us, if we are not careful they will evolve toward being a direct competitor in this manner.

- The natural way for us to do this supersetting is using our current technological agenda in PC computing. This means using monickers, OLE objects, Forms3 forms and every other Windows technology that is applicable as part of the (sic) our extensions to the current Internet world. In addition we also have to look at developing some new things that have no equivalents in the PC world, such as security and billing, so it is not all about reworking existing stuff.

- We need to have technology at both ends of the system to make this work - i.e. both front end and server, and have them be very popular.


Given the current state of the internet, and given our size and resource level, we are going to bootstrap our internet service by leapfrogging the current front end technology and distributing our own front end. This is unusual, since most internet services just accept the constraints of the existing protocols and software. Given our size, and our software skill there is no reason to accept these constraints, and in fact every reason for us to break the mold by doing something really different for the bootstrap....

Initially we give away the front end, but over time I want to have features in the front end be a continued reason for people to pay us a subscription charge. The free aspects of the front end would be kept competitive, but once you get into content that uses the extended stuff it should be a lot more cool....

Everybody in this business is going to wind up trying to leverage three different sources of value:

- Software features (in front end and back end).

- Content and (particularly navigational content like index, directory, yellow pages, browsing)

- Service relationship (including basic access and other services).

...Another way to look at this is that we are going to prioritize pushing momentum in the service and content areas versus a pure software approach.
I hope the EU Commission is reading Groklaw at moments like this. The email is from 1995, but didn't they do what he suggested? I'm remembering the Microsoft extensions to HTML. I'm also thinking about OOXML. There's lots more in the exhibit about their browser plans, but are you thinking Silverlight? I am. Here's a snip from one last exhibit, Exhibit 3589 [PDF], an email thread with a memo shared with the top brass at Microsoft on how to get the Internet away from open standards bit by bit:
I recommend a recipe not unlike the one we've used with our TCP/IP efforts: embrace, extend, then innovate.

Phase I (Embrace): all participants need to establish a solid understanding of the infostructure and the community - determine the needs and the trends of the user base. Only then can we effectively enable Microsoft system products to be great Internet systems.

Phase II (Extend): establish relationships with the appropriate organizations and corporations with goals similar to ours. Offer well-integrated tools and services compatible with established and popular standards that have been developed in the Internet community.

Phase 3 (Innovate): move into a leadership role with new Internet standards as appropriate, enable standard off-the-shelf titles with Internet awareness. Change the rules: Windows becomes the next-generation Internet tool of the future.

Are you reading this Apache guys? Ubuntu Mono freaks? In the "Potential Risks" section on page 15:
Microsoft/Internet Culture Clash. - One of the biggest challenges facing Microsoft's success in the Internet community is acceptance and respect. Although we have an incredible amount of respect in the commercial software business, the Internet has been founded on public domain protocols and products which generally included source availability at no charge. It has been only recently that vendors have suggested profiting from the Internet by selling the browsing tools and technologies, and offering commercial services on the Internet itself. The information and software has been free for 15 years, we need to be careful to embrace the current technologies and community before we attempt to reshape it.
Put 'Open Source' everywhere in that snip where it says 'Internet' and you have the picture. They pretend to be with you, sharing goals, and then they win. If you are stupid enough to fall for the "let's be friends" part of their scheme.

Their concept of the Internet is that it's a strip mall. They want it to be *their* strip mall.

But, whatever their flaws, Google is at least thinking more broadly. Their concept includes the hope that knowledge will become available to people who currently have no access to it, people who in many cases can't afford to pay money for books. Don't you want people in Haiti to read?

No. Seriously. Think that over, publishers. They are not going to pay you under your current model anyway. They and millions of people in the world, including many in the United States this very day, can't. The bigger, more noble question then is, should we let them have access to at least part of the world's culture or not? That is, not to put it too starkly, the right question.

And I think authors like Ursula Le Guin need to answer that question, because it's not a question authors have ever faced before or had to think about. The Internet makes things possible that never happened before in the history of the world. So authors need to think about those possibilities, not just their personal needs and wants, and you can't escape the question by arguing that it's only natural to think about one's own interests. It is true. It is natural. But the creators of the Internet demonstrated that it's not the *only* way to think a matter through. Sometimes one has a chance to do something much bigger. Linus had choices too, you know. He could have patented Linux up the kazoo. He could have licensed it differently and gotten money every time you get a copy. Humans are not required to think only about personal gain. One can have larger dreams, dreams the Internet makes capable of fulfillment.

I wrote this article to highlight those possibilities, so they can think about this settlement from a different angle, not just dollars and cents. It's not just Google's interests or the authors' or the publishers' interests at stake. Please will you read Ah! Google Books! Ah! and The British Library - "The world's knowledge" DRM'd and for a price before you finally decide your position on the settlement? Thank you, if you do. I wrote them to explain to librarians and authors that there are folks who won't be at the Fairness Hearing but who have an interest in what happens here. Fair use and public libraries used to protect their interest. Now, in the digital world, who will protect them? The answer cannot be nobody will. Aside from the nobility aspect, fair use is part of copyright law in the US. You can't just paper it over. The US government will be filing a brief soon. Logically, it would be they who should protect that interest and fair use.

And could authors please think about this also: in the prior dead-tree books model, a lot of us went to book stores to sample your books, to decide if we liked them and wanted to buy them or not. Were we pirates? Barnes and Noble provided a section just for that. Coffee even. Did we have to pay to read your books that way? What exactly is the difference between that and Google Books? The difference is we could read the entire book at the bookstore if we wanted to devote the time, not just a snippet. Think about it. How will we know if we want to buy your work if we can't sample it?

Here's the Amended Settlement agreement from November, which the court preliminarily approved, and the FAQ. And if you want to opt out, here you go, but don't do it if you did it already. If you want to attend the Fairness hearing on February 18, here's the info on how to do that.

Update: FSF has filed objections, and the press release is actually quite interesting. It's refreshing, in that they say they already gave Google permission to display works without paying them anything, and authors who choose to do that should not have to get into the whole Google Books Project maze. They objected in that way to the first agreement, Google altered the language, but it doesn't yet address sufficiently the original objection:

The Free Software Foundation (FSF) filed another objection in court to the proposed amended Google Book Search settlement (*The Authors Guild, Inc., et al. v. Google Inc.*). The objection notes that proposed amendments which discuss works under free licenses unfairly burden their authors with ensuring license compliance, and urges the court to reject the proposed settlement unless it incorporates terms that better address the needs of authors using free licenses like the GNU Free Documentation License (GFDL).

The GFDL is a copyright license that authors use for their works when they believe others should have the freedom to share and improve those works. It was designed primarily for use with technical documentation, but has been used for many different kinds of written works -- from print biographies to Wikipedia articles. Whereas copyright is normally used to prohibit others from distributing works, the GFDL encourages sharing, with the requirement that any such redistribution must also be under its pro-sharing terms.

But under the proposed amended settlement, Google would generally have permission to display and distribute these works without abiding by the requirements to pass the freedoms guaranteed under the GFDL on to Google Books readers. Authors who wanted to use the GFDL or another free license would be required to designate that license in a Registry -- and the Registry would determine which licenses could and could not be chosen.

"As soon as we saw this proposed amendment, we realized that it wasn't good enough," said Brett Smith, license compliance engineer at the FSF. "The GFDL and other free licenses, like the Creative Commons Attribution and Attribution-ShareAlike licenses, already grant Google permission to display and distribute covered works through the Google Book Search database. Google doesn't need permission to distribute these books under separate terms, and authors shouldn't have to ask Google to come into compliance."

The objection states, "The proposed terms... [place] an unfair burden on Rightsholders. Rather than requiring Google to respect the terms of such Free licenses, Rightsholders are responsible for notifying the Registry that the work should be made available under those terms. The FSF sees no justifiable reason to shift these administrative costs to the Rightsholders. Works distributed under Free licenses typically indicate the license terms within the work itself, so authors have already made their choice clearly known. Google should be able to use this information to classify and publish these works appropriately...."

The full text of the objection is available here. The full text of the GFDL is at here.

Like I say, it's refreshing that there is someone out there who isn't trying to get some of Google's money. And as for the issue, can't Google just come up with an algorithm that notices the GFDL or the various Creative Commons licenses? It's not asking them to beam them up to outer space or anything really hard. Maybe, despite my joke, it can't yet be done, but surely there has to be a way eventually, and if they could figure that out, it'd remove the objection and the need for notification for either side. The notice is the license.

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