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| UB Vienna |
There are some open issues with Grimmelmann - the tactical shortcuts to the throat.
If the law were my girlfriend I would have some serious words with her. "Honey," I would say: "How can you give me all this literal stuff about 'exclusive' and when it comes to 'limited time' then a century counts as limited time because it is not two centuries. So what is language to you anyway? If it suits you, the merest hint of 'exclusive' and you go crazy. Yet when it says 'limited time' in the same paragraph in the Constitution you say 'oh well, limited time, er, that is an ambiguous concept - could mean anything really.' Limited is no more ambiguous than exclusive." That is what I would say, and then I would want all my DVD's back and my juicer and the pressure cooker and good riddance and find someone with a respect for the logical consistency of language.
So I plan to catch up with Grimmelmann later. There was a telling entry on his blog in July. It seems Judge Chin is upset with the Authors / Publishers and Google for taking so much time to renegotiate based on his 48 half pages - it seems he has offered them some staff to move things along. That is rich. What if Google had offered him some staff in May of 2010 to help him write his opinion. You gotta love the law.
Focusing the mind with twitter
Before I proceed with my analysis around the absurd notion of walk-in-research in the 21st century, legally irrelevant as it may be, in the context of judge Chin's opinion, I would like to suggest a break. I would like to prefix a short piece, some 60 sentences, written in Twitter. The title of the piece is: "Tweets on Judge Chin's Google Ruling I Would Like to See."
I have discovered Twitter as a literary and journalistic style. ESPN uses twitter style in its game descriptions to great effect. More to the point, Twitter can be a powerful polemical style. Twitter has a peculiar power to cull out the essential elements of an argument without all the irrelevant niceties of style and focus the mind for further discursive analysis. The experience of reading tweet in sequence is at first difficult because of the relentless flood of declarative statements; keep reading, endeavor to persevere. There may be an epistemology of tweets.
Enter twitter mode!
Divided opinions make a reasoned analysis appear as only spin.
The monadic units of tweets are our only defense against tedious rhetoric buttressed by self-serving logic that wants to take us where we don't want to go.
Orphaned texts are called orphans because their authors are: 1. deceased without heirs, 2. disinterested, 3. disappeared, 4. vanished, are no more, joined the choir invisible.
Of the books covered by the copyright act of 1929, requiring a renewal after 24 years, only 15% of copyright holders renewed; the books of the 85% went into the public domain up to 1964.
Of the 13,000 items published in the US from 1790 to 1799 only slightly more than 500 were registered as copyrighted. On the federal level, I should add.
Orphans are generally unread texts on library shelves that want to be part of the great electronic kindergarten in Mountain View.
Unfeeling and uncharitable corporations and professional nay-sayers want to keep the orphaned texts stuck on pages, between cardboard, held together with glue (attrib. SV) and covered with dust.
Every author knows or thinks he or she knows how much the next royalty check will be.
Vacations are planned around the arrival of royalty checks.
Every publisher knows whether a specific title will get a second, third ... edition or not.
Publishers do not give a rats behind for out-of-print books.
Most orphans are sitting on library shelves and have been checked out only once since the Carter administration.
Orphaned texts can be bought at used book stores for a dollar or less.
Judge Chin has closed the shades of the prison house upon the poor unread texts, at least temporarily - weep.
Millions of people around the world would give the glued up page-bound texts a happy electronic home on their laptops.
It is not about scanning, it is about being in the index stupid.
Only a comprehensive index of everything can organize the knowledge of the world - is that a difficult concept to grasp?
Scanning projects, (by a consortium of foundations - Robert Darnton, by concerned government - Siva Vaidhyanathan) are pretty useless, unless they are in a comprehensive index so they can be found.
We have to find individual sentences in books.
We want to read the books or the paragraphs with the congenial or useful sentences.
The scans of the BNF - without OCR and indexing - are as useless as the paper the originals were printed on.
Multiple indexes are not to the point, but probably inevitable.
Censorship of results from index queries by the Party of a socialist paradise should not be condoned as multi-culturally anti-corporationally appropriate.
Electronic texts without OCR and without a comprehensive index of the lexical items of the text serve only the class of mandarins or high priests of any or variable gender who are in charge of fanning the cultural embers.
The high priests play favorites and ignore the vast majority of the orphans.
Were an index of 12 million books available to all, the high priests of learning could fan actual fires.
Jealous relatives are trying to make sure that no unclaimed texts get to the great electronic adoption agency in Mountain View.
Lawyers, (people of limited horizon through their association with the law) who have become used to being called "Your Honor" have forgotten that not all fields of text creation have well established electronic repositories for their opinions, such as they are.
The principle of competition where there is none and the vigilance against monopolies as yet beyond the horizon have adversely affected the logic of legal opinions, such as they are.
"Concern" is an important legal principle so it seems.
Judicial activism and judicial restraint are weapons flailed about with quite arbitrarily.
Judicial restraint means killing a proposal by pitching it to our elected representatives who are too busy searching for clues to do anything sensible.
The competition of Westlaw and Lexis is a bit of a sham considering the secret licensing agreements of technology in the past.
Competition in the creation of comprehensive indexes is a fairly absurd concept.
An index of only French search terms is vraiment bete - as are the accents.
Imagine a competitor to Medline.
Spending scarce foundation resources to redo the scanning work of Google and the partner libraries is a colossal waste of money - is Robert Darnton on this tweet?
Lets get some experience how the electronic delivery of library books would work.
Spending public funds to do something that has already been done is a grotesque waste of money - is there a Siva V on this tweet?
The publishers want it, the authors want it, librarians want it (exception noted), I want it, Google is spending millions to build it, Google is spending millions to box it through the courts - "not fair" - "not reasonable" - "not adequate" - from the bench.
Saying that Google is only interested in making money for its shareholders is like saying Harvard is only interested in providing a comfortable living for its professors - wait - Harvard IS only interested in providing a comfortable living for its professors - forget that thought then.
If someone has written a book since 1923 - or if someone's great-great-grandfather has written a book since 1923 - it would not be too much to ask to go to a web site and make that fact known.
If someone or someone's ancestor has written a book since 1923 and does not bother to register or is living under a rock somewhere and does not care enough to register, then let that orphaned text be set free.
If some authors want to opt out of the comprehensive index - let them and their ideas fade from the collective memory - an undisturbed place on a library shelf will be an adequate, fair and reasonable place to mark time till the sun goes red giant.
There is no reason to coddle neglectful authors.
The proud authors who have stood by their creations although the little freeloaders have not pulled their weight for decades should get some minor compensation, sixty bucks per.
The fact is; most texts that have stayed too long in their limited temporal horizon don't really deserve a place in the great electronic kindergarten in Mountain View - but let us be generous.
Orphaned text are orphans because their authors have given up on them, their publishers have given up on them, librarians have become the refuge of last resort.
Adopt an octogenarian!
Copyright is active until 70 years after the author's death.
An author born in 1950, who writes a book in 1980 and who dies in 2030 at the age of 80, can pass on royalties on the 1980 book until the year 3000 - electronic indexes be darned till then.
It is important for contemporary texts to be part of the comprehensive electronic index.
Registered copyright holders get fair compensation, authors of orphans who are found get fair compensation, nobody who has a reasonable expectation of compensation is excluded.
The lathered up anti-voices want to make a punitive raid into the great electronic kindergarten in Mountain View and remove any files that may or may not have authors who are alive or had heirs.
Think of the book that just wants to be read - weep.
All the glued up page bound books covered with dust who have been cleaned up and made productive again by Google and restored to their authors can now romp in electronic space and try to seduce the current contemporaries with their pathetically limited temporal horizons.
Thoughts die on the shelves of libraries.
Thought can be reborn in the comprehensive index.
Even thoughts with a limited temporal horizon are witness to the limited temporal horizon of their time and thus contribute marginally.
That though is too weird for twitter!?>><<(<
Exit twitter mode!
Twitterers will know immediately that I am not one of them because I don't have command of the argot. Alas, it may be too late for me. No tricky logic hidden in complicated sentences, no web of disingenuous rhetoric, some irony, just each sentence standing on its own. Less is more. The less "merda taurorum" the better.
NOTE: The term "orphans" in this context refers to a class of out-of-print books that are still under copyright. The class of out-of-print orphans comprises titles that have no author to be found without a team of FBI agents. Remember Elvis: "She wrote upon it: Return to sender, address unknown. No such number, no such zone." To be a true orphan, bibliophilic ally speaking, the book must have an author of indeterminate whereabouts who had not died before 1941, should it be possible to determine that fact without 40 hours of research (2011-70 years of copyright protection=1941). Conversely, the books of an author who has died in 1941 will have come out of copyright this year (2011), regardless when they were published, and do not have the status of orphan, they are in the public domain. Books with registered copyright holders can generate royalties. In the past that was out of the question for the out-of-print, the not-reprinted, the not-reissued, the zombies in libraries and Internet booksellers; with digitization, some fresh wind has come into the market for the left for dead with renewed revenue flows to authors and publishers, however modest, in the offing. It is a murky area with some conflicts of perceived rights and interests that can generally be resolved in broad outline by looking at the back of the title page. Should there not be a date on the title page, or no name of a publisher still in business, the book may not be worth fighting for. The term "orphans," in this context, is a technical term. I would have preferred the term "derelict property." The term is used metaphorically and not intended to hurt feelings. Of course I am not suggesting that "orphans" and "derelict property" are in any relation to each other, other than the latter would describe the situation of out of print books with no author to be found better than the former. I have been sensitized to potential insensitivity on my part in earlier versions. My apologies and the obligatory rewriting are offered as prophylaxis and a gesture of good will in case my attempt to have some fun with the Google ruling may have touched a sensitive social problem and personal trauma, but I hope apologies will not have been necessary. My apologies also to the twitterers... - oh, they are already gone. Never mind.
Break Over!
I can usually let the litigious parts of our society be about its lucrative business with equanimity on my part. I do get exercised when my favorite oxen, one I had been counting on to move many heavy burdens, is gored.
I would like to look at the ruling not to discuss the relevant points of law, as they are deemed significant or not, nor to discuss the requirements of Rule 23(e) of the Civil Code. Rather, I would like to look at the ruling as I would any text, look at the title page, look at the topic sentences, look at the exposition, look at the spinning of the facts and then look at the implications of the conclusion for researchers actually using books. So this essay is really a quite pointless and self-indulgent exercise. The law will have its way. We should not forget, however, that this ruling puts the greatest library in the history of the world on hold, where it has been for the last year and a half while Judge Chin has been working on his 48 half pages, not to mention the years of litigation before that and the subsequent years of negotiation and re-negotiation of the settlement.
The library-in-waiting is not only large, but also accessible to people all over the world where there is Internet. In its current form with public domain books and snippets, it makes resources available in a broad democratic and universalistic manner that had previously only been available to a small, elite subset of humanity with stack access to the great libraries.
This fact has not eluded Judge Chin in a general sense; he demonstrates adequate awareness and quotes reasonably relevant sources describing the project and its dimensions fairly. Perhaps the very huge dimension gives him pause; we might have wished for a judge who would have been emboldened and not shrink from the shadow of Grimmelmann. I doubt Judge Chin fully appreciates the importance of this resource to researchers all over the world, today, as they work, now.
Any such considerations - obviously - have to be secondary to the procedural exigencies of the law. In any case, such considerations have not impressed him sufficiently to affect his ruling or to accelerate his part in the process. One need not ask if USDC Judges have wiggle room if they think something is important; they obviously do; examples abound. It puzzles me why this issue could not wiggle through the system faster. Surely by now it is fairly obvious that concern for the orphans is bogus, that electronic texts are important and that walk-in research is unreasonably inadequate. By research in this case I mean research that can be done from the combined collections of libraries, not science laboratories or "field" research.
