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| Austrian National Library - Reading Room |
When verbatim pirated copies of Voltaire in the 18 c. were printed and sold on the black market, the purpose was to make profits by cutting out the author and any editorial work done by the printer. It was also done to meet the demand.
When Google makes a verbatim copy for its index and to deliver the pdf to a reader, there is no attempt to cut out the author. Any author who might feel cut out has no need to sue, there are options to achieve a "cease and desist" or to get a bit of money.
Libraries do not infringe, not when they deliver hard copies of the most recent publications and not when they deliver a pdf of a book out of print for two decades or more. Authors get good publicity from library copies. Or at least they used to, now the first look is always the preview on Amazon or the straight discount download to Kindle. Fortunately, this is strictly a business decision so there is no reason for the USDC to insinuate its view of property, thank you very much indeed, that is left to the merchants. No third parties with an agenda to disrupt electronic delivery can use that ready and willing tool. So one of the myriad ironies that there is better electronic access to a book published in 2011 than there is to an out of print book of the sixties, the investment of Google and the libraries notwithstanding.
At fault is a particularly silly theory of property: copyright maintains the monetary value of old books. No sillier thought has ever crossed the mind of a lawyer. Copyright maintains the value of Mickey Mouse. Books that are out of print have lost their value, they are not "rationally allowed to lie fallow." The market is done with them. To quote from an ad-lib of the "Dead Parrot" by John Clease: "Its metabolic process are a matter of interest only to historians." In the case of books, the "ideational processes" live on, even if no one is willing to pay cash money for them.
"The precise split between orphan works and ones whose owners are rationally allowing them to lie fallow is impossible to ascertain..." [Grimmelmann, 2009, p. 8]
Further down there will be a discussion of commercial value versus social value. It turns out that there are quite a few values other than commercial value with books. Perhaps Congress could give us a Federal Circuit Appeals Court that would be hospitable to values other than commercial.
Of course it is not possible to calculate real figures for books published after 1978 since all renewal requirements were suspended; yet Spilman above feels secure in projecting similar figures for years closer to the current. Does it seem likely that one of the living dead representing .006 of copyrights would arise and sue because the library book with his or her name on it is delivered via pdf rather than hardback? Why sue when opt-out is an option? Why does Prof. G. conjure up the 150,000 dollars in statutory fines (per book)? Spin?
First, the authors, with rare exception have kissed their work good-bye after 28 years, probably much earlier. In any case any profit from verbatim copies would seem extremely unlikely five years after publication. I doubt that the 15 percent rate of compliance with the renewal requirement would have gone much higher had the time period for renewal been shortened to 14 years or seven years. One could imagine that many authors simply do not care about copyright and would not have applied at all if the publishers did not offer the service and the Library of Congress required free books.
The rewards of authorship go way beyond revenue from book sales, (writing grants, personal satisfaction, promotion to professor etc...) but that is a guarded secret. Verbatim copying is a non-issue with books, jail-time or no, generally speaking. Revenue so large that books are worth copying and selling is limited to two or three titles per year. Revenue from book sales is limited to a small group in a small number of distribution channels. That group is vigilant protecting their rights and vociferous beyond their numbers.
For the lawyers, that is to say, for the copyright lawyers, the principle of copyright is a holy of holies that has sent their offspring to elite and expensive New England institutions of higher learning for generations. Generally, they don't deal with books but with music, DVD's, cartoon characters, stock market publications and software. Derivative products of blockbusters is their toast and jam. Their formidable array of weapons and instruments of inflicting legal pain are, however, shown to book authors and librarians and indexers and any would be scanners, although attempts to apply them to stop scanning for indexing have been turned back.
For the members of Congress their staffs and their lobbyists the goal is to bring as many consumer products under copyright as feasible or not and to make the registration automatic and the period of expiration well beyond the horizon of contemporaries up to 120 years. Authors are treated like an indigent minority whose rights must be protected since they are incapable of action to help themselves. The principle of copyright, formerly a technical term used in the transmission of written ideas has become a mindless literalism applied to anything that might be copied. In 1992, Congress abolished mandatory renewals and also stopped monitoring copyright holders; good move, Nimzovitch, great play, Shakespeare. There is some muttering that the Library of Congress was not administratively capable of handling the renewals and had made a hash of the data well before 1992. The music industry was so lax in tracking its copyright that they had no idea who owned what. Congress merely towed the sinking ship to the scrap yard.
One could imagine that widespread non-renewal could have endangered the whole concept of extending copyright for books. Better to create a class of the "living dead" who may rise from their graves any moment and march ghoulishly seeking infringers. The requirement to update periodically insured that the identity of authors and their whereabouts would be on file. As it stands now, rights are active for up to 120 years or longer with no institution charged with keeping track of bank routing numbers. The reason is obvious, no money has flowed into authors accounts after five years of publication, if that, speaking generally. The notion that rights are protected for a large number of authors is a fiction. The notion that the effort of libraries to move away from hard copies to the delivery of electronic copies takes the bread out of the mouth of the authors is a reprehensible argument. The notion that authors of orphans are stalking scanners to hit them with $150,000 judgements and jail-time is merely a baiting strategy. Yet still, a legal freeze has been cast over all contemporary written expression.
There are a small number of publishing stars who are making money and passing the fruits of their labors to their heirs - they are well known, their bank routing numbers are well known, they can afford their own lawyers to send out cease and desist letters to make sure their rights are respected; they will take your $150,000 and send you to jail for statutory whatever.
There is one more thing to front load here. Copyright statutes have 2 purposes, quoth wiki: 1. give authors exclusive rights to their creation and 2. give the public the freest possible access to the work of authors. The law is to balance the competing interest. In the past, copyright was limited in time and renewal was required forcing authors to claim the continuation of protection from copying. In early days it was required that notice be published in newspapers for extended periods. The time limit was an expression of the importance of part (2.) "freest possible access." By removing all protection after 28 years, early law makers [1700's] opened the door for verbatim copies to be sold without benefit to the author one generation after publication. The ability to sell verbatim copies is the main thing not permitted for works under copyright. Expiration of copyright allows verbatim reprinting of novels and plays and scholarly works.
By moving the time limit of copyright during the last few decades way far into the mists of future time, Congress has effectively changed the notion of "freest possible." Now that arguments has been changed to: we will not copyright ideas, only the verbatim expression of the idea; that we will lock up for your and your children's lifetime and then longer. In Jefferson's time it was obvious to all who used books that a copy of a book had to be on the shelf since the trip from Monticello to the Philadelphia Library Company was a week's ride and might have killed the horse. Today that copy has to be on the lap-top since a 30 minute ride to the library in the SUV and finding a parking space is an intolerable burden, legally speaking. By removing any hope of verbatim copies within 70 years of an author's death, Congress has really expanded its authority from Article I,8,8, "... securing for a limited time ... exclusive rights ..." What did Representative Bono think was meant by limited time? 120 years? 95 years? Life plus 70? In my view, limited time would have to mean that a contemporary can still have a statistical chance to make a verbatim copy before joining the choir invisible. Else they should amend Article I,8,8 to read: "securing for forever and a day ... exclusive rights ..."
It turns out that verbatim copies are crucial - summaries of "ideas" are irrelevant. There are plenty of summaries of ideas, also copyrighted; yet, only a look at the original will do.
First, verbatim copies, preferably without OCR errors have to be created for the index. This is not a development that could have been foreseen even in 1970's when Ray Kurzweil was already perfecting scanning. Being allowed to do that seems at least temporarily secure I have been told. Secondly, verbatim copies are important to deliver increasingly rare copies to researchers, books that may be in only 5 or 10 libraries in the US.
The chief reason one would want to look at a book 20 or 50 years old is that it has become part of the bibliography of some subject or of some literary / artistic / philosophical / historical figure. Some dissertation on Abe Lincoln's campaign for President in western Virginia or Hemingway's experience with winter sports in the Alps. Examples abound. Less interesting are novels or plays that did not sell - unless the author scored a major hit later - but then the heirs would have opted out.
Scholarship on a historical figure or subject, ideally, involves an extended study of all references of both shorter articles as well as books. The purpose of this exercise is not to pass money to the previous generation, but to make sure if someone has had an idea that is crucial for some perspective, that the idea is given a fitting citation. One should under all circumstances avoid mentioning an idea as one's own if, in fact, it has been published before. This rule does not apply to blogs. Hence some of the tedium of scholarship. It is charming for Congress to claim not to copyright ideas, only "verbatim expressions." Everyone knows that academic plagiarism is policed more thoroughly by experts in the field than copyright is by the courts. The experts in a narrow field will know when a sentence should have had a footnote.
With the articles, pdf files of just about everything are available. This allows effective note taking, storage and cut and paste while writing. Obviously this can only be done from verbatim copies.
The same applies to books. I want the book on my shelf in my Google account or in a sub-directory structure on my laptop where I store pdf's of books. It is important to read and take notes, but ultimately, I will want to take several paragraphs or sentences from the verbatim copy to paste them into my manuscript - of course with full citation. It is an academic exercise, to further the discussion about Lincoln or Hemingway; there should be no toll collectors on scholarly quotations. There never have been such toll collectors; yet, since the usual method of transferring quotes these days is cut and paste, a verbatim copy is required. This does not automatically make the book a runaway best-seller, it merely means that electronic tools facilitate manuscript preparation. Only scoundrels would try to profit from the enhanced productivity of scholarship, or worse try to prevent it.
Even the elaborate mechanism in the ASA for managing a flow of money to authors comes from this unholy alliance between lawyers and Congress, with Google acting as a bit of a patsy agreeing to absurd demands. Only the opters-in who are still making money with their current printing should get money under the ASA, the rest should either be out of the system, opters-out, or should be delivered for costs to cover the scanning and the electronic delivery - preferably handled through advertising. That would be in the public interest.
Thus, the discussion is really between the lawyers and Congress. For both parties it is convenient to have the specter of a large numbers of persons unknown over which they may throw their protective mantle. The fact that this is a complete fiction for books published before 1964 is known to Prof. Grimmelmann; yet he draws no inferences from that in his interpretation of the statutes.
Analyzing his rhetoric in the Jan. 2010 piece, [op. cit.] we see the two words "jail time" written on the wall - in the first paragraph. This is done to focus the mind. Yet the argument is circular: 1. copyright is exclusive; the right to dispose with the work rests exclusively with the holder. 2. it is a crime to copy without permission. 3. the authors / publishers via the ASA would give Google the right to copy orphans. (Actually, Grimmelmann says the sitting judge would give away that right) 4. non-Google copiers would be infringers. 5. "... exclusivity [gives] permission to do what is forbidden to others." 6. Google becomes the de facto copyright holder and can act exclusively. 7. The only competition is from reprint shops that use Amazon, Abe and E-Bay to sell reprints of public domain scans for profit. These people bet that a percentage of careless consumers will pay $39.95 for some paperback bound print of a pdf they could have for free.
All this may be true although the logic does not open any great vistas of understanding; I could imagine that after four years of incremental laproscopic law school lobotomy, I would consider this reasoning effective. That could happen only if I had already made up my mind and perform the "exclusive rights" maneuver. QED: Google - indexing on behalf of libraries - gets the "exclusive right" to deliver books for scholarship that have no economic value and never had economic value. And that is bad. Google could probably pay for this with advertising. I cannot believe there is not a sequence of "magic words" that would make this problem go away, maybe "a prima facie preponderance of unwilling suspension of disbelief" at the demands of the authors for a piece of the action. Yet my lack of understanding does not end there.
In paragraph 4, still on page one we read: "Google, however, didn't actually track down these orphans." [Grimmelmann, 2010] We have already done a head count of the orphans; further down, I shall try to summarize some of the reasons why orphan owners should probably be left unfound. Immediately following the sentence quoted above comes the sentence electric: "As a class action, the settlement rests on the fiction that the class members consent to Google's future actions. For orphan owners, the fiction is a transparent lie." [Grimmelmann, 2010]
I think there is some very bad logic going on here. In any or all class actions a large percentage of members do not become involved, correct me if I am wrong. I was once informed that I was a member of a class who had used a credit card in Europe around 2003-2004, and I would be given back overcharges if I filled out some papers on my actual bank charges or I could just make a run for it with $25 if I signed a boilerplate. My attitude was forget about it; water under the bridge. Representatives speak for the class, consent is assumed and generally not labeled as a fiction, correct me if I am wrong. The pay off is not for the class members who get $25 but for the lawyers who get a piece of the total (millions). That arguments are made on behalf of class members who are unknown and absent cannot be labeled a "lie" without raising the suspicion of extreme spin. This comes from a man who knows that 85% of pre-1964 books have fallen into the public domain with no recovery of rights for lack of action by authors. They cannot all have been on extended expeditions into the Himalayas or marooned on a remote island.
The next three sentence seem non-sequitors to the untrained eye - it is an admonishment not to give Google an unfair advantage over its competitors. Below, I shall try to summarize the competitors in the arena of scanning library books; the number is close to zero, not counting the outfits we have mentioned that are already printing bad copies of Google public domain scans and polluting abe.com and amazon.com.
Yet here is the astonishing thing, the thing electric; on page two of Judge Chin's ruling we get this argument, not verbatim, that would be infringement, but clearly recognizable: "...significant advantage ... copying ... without permission ... while releasing claims well beyond those presented ..." This is precisely Prof. G's "exclusive" argument.
"Releasing claims" seems to be big medicine. Prof. G. seems to have threatened the court that "the stroke of the District Judge's pen" would release claims. Honi soit qui mal y pense. The authors, in a settlement negotiated over years and amended extensively, set up a mechanism to collect revenue on out of print books using Google to deliver their texts. Yet, according to Grimmelmann, it would be Denny Chin who would empower Google to do that, not the authors. I think this calls for some chuckles and rolling eye-balls from us non-lawyers. Shucks-gooolly, we are just so impressed by the proceedings and all the wing-tips and all the lawyering.
Only Congress can release claims; and we, the court, cower at the prospect of doing that. There is no hint either from G. or Judge Chin what these future actions might be; one could expect a typed list if the threat is so dire. Scanning the books is not a future action [done that], indexing is not a future action [done that]; delivering the whole texts [done that with many books] is not a future action of undefined scope or the release of a claim of unimaginable consequence; delivering the whole text is what libraries do, is what authors do for a fair price should they care to step up to the pay master's table, it is what the public needs to be able to get some use of the text base, it is "freest possible access" in the modern world.
I don't know if the Grimmelmann argument is so strong that Judge Chin had to accede? It it were so strong, why did Judge Chin take 14 months to come up with a paraphrase of Grimmelmann's essay. And it is such an easy argument: [I paraphrase] anything can be made better, lets all pull together and make this better. Billable hours, January 2010 $45 million, May 2011 [?], give a guess.
Grimmelmann is teaching me; I don't like what I am learning, and I doubt I will try to be the oldest person ever to get a law degree. This has not, however, dissuaded me from starting a commentary of my own, far from hard-hitting legal reasoning and virtuosity in legal strategies, but with reasoning non-the-less, potentially even legal reasoning in a larger sense. My commentary is fueled by some considerable outrage on how dependent we have become on the arcane legal formulations embedded in antiquated conceptual structures, and how accepting, and I say this with all the respect due.
