Google Books vs. Every Published Author, Part III

(Be sure to read parts one and two.)

The world is changing. As an author and creative person, I want as much intellectual property protection as possible. As a creator, I want as much flexibility as possible.

Here’s the summary of a very significant intellectual property case decided this month by U.S. Circuit Judge Denny Chin:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.”

On the one hand, Google is providing a substantial public service by unearthing, scanning, and distributing works in the public domain that may otherwise be forgotten. What’s more, they’re placing everything into a searchable database that can be accessed by just about everyone who wants or needs it.

On the other, Google has gone too far by scanning and distributing works that are not in the public domain, but are, instead, owned and controlled by copyright holders. (Most are authors, who typically assign publishing rights to their publishers but retain their copyrights.) Here, in my view (not a lawyer, but an author and a business person), the solution is simple, reasonable, and available. Google must ask permission of copyright holders before freely distributing their work. (Yes, this is cumbersome, but Google is a company whose cleverness is exceeded only by its resources.) Of course, authors could be pro-active in making such grants because they believe, in their sole and reasonable judgment, that their work’s inclusion in the Google Books database would be in the public interest or would benefit the author’s work from a marketing point of view.

According to Joe Crawford of Moorpark, California, you are free: to share (to copy, distribute and transmit the work, and to remix (to adapt the work)  Under the following conditions: attribution – (You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). Joe established the rules for his copyrighted property. This is reasonable, and it is now done on a massive scale.

According to Joe Crawford of Moorpark, California, you are free: to share (to copy, distribute and transmit the work, and to remix (to adapt the work). Under the following conditions: attribution – (You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). Joe established the rules for his copyrighted property. This is reasonable, and it is now done on a massive scale.

In fact, Creative Commons has done a lot of good work in this area, making it easy for copyright owners to establish rules with regard to sharing, copying and other uses of their property.

The issue is not whether Google Books should scan and distribute books, and the issue not whether this activity results in a public good. The issue is whether making full digital copies of a book in a public library that is still protected by copyright, and then distributing the digital copy without permission of a copyright holder is, under any reasonable interpretation of the law, more similar to a 21st century card catalog or more similar to copyright infringement on a massive scale.

As an author, I am strongly inclined to vote in favor of copyright protection and a requirement that Google, or any other party, affirmatively secure permission of my intellectual property prior to its distribution.

As a producer and businessperson, I could reconsider that position because the current decision may apply to future projects in some interesting ways. For example, one might contemplate an online system of recommended books that include substantial portions of copyrighted work—full chapters, perhaps, or more—as a kind of public literacy project. Or, one might translate entire works into other languages to provide greater access to those works. In both cases, if the works are scanned into a database so that researchers might use them for educational purposes, no permissions should be necessary.

Let’s take that a step further. There is so much video now available on the internet, and, for the most part, it is very difficult to search within those videos. If you were to create a database of, say, movie scripts or, in a more advanced form, movie dialogue, you might well be able to show the whole movie, perhaps in “snippets” (the term used by Google for its portions of larger works), or, at least, include these movie excerpts in a series of online documentaries that explore, for example, the mythology of the Star Wars films, or the role of animal characters in Disney or Pixar films. If it’s all for the public good, and it’s all part of a searchable database, Judge Chin’s ruling suggests that Fair Use is both a reasonable defense with regard to challenges, and, in a larger sense, that this sort of activity is to be encouraged if it serves a research need, promotes the films, and transforms the ways that people consume these films.

It’s easy to be glib or flippant about the tremendous reach of the judge’s decision, but in the end, this isn’t about books, or Google. It’s about whether creative professionals will be able to earn a living in the future. With each step into a new digital future, that future becomes just that much more murky. In doubt about that? Read this.

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Google Book Chronicles vs. Every Published Author, Part II

(Be sure to read parts one and three.)

The statement from Google:

As we have long said., Google Books is in compliance with copyright law and acts like a card catalog for the digital age, giving users the ability to find books to buy or borrow.”

Baseball pitcher Jim Bouton wrote a popular book called Ball Four. The book is out of print, but it is available through Google Books. Jim Bouton is a plaintiff in the case against Google Books because the work was used without his permission.

Baseball pitcher Jim Bouton wrote a popular book called Ball Four. The book is out of print, but it is available through Google Books. Jim Bouton is a plaintiff in the case against Google Books because the work was used without his permission.

And from the Author’s Guild:

Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works…In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”

Of course, the Author’s Guild plans to appeal the decision, but, for now, it stands.

The judgment was written by U.S. Circuit Court Judge Denny Chin, who has been working with Google and the Author’s Guild on the future of Fair Use as it applies to Google’s insistence upon scanning and posting intellectual property without permission of the copyright holder. (Be sure to read yesterday’s post because it sets the stage for this one.)

This wonderfully cluttered bookshop in Tenby, Wales, UK is precisely the sort of mess that Google Books tries to solve. In the bookstore, there is no search, no apparent organization whatsoever (except those lovely Penguin classics in the spinner rack). On Google Books, every word of every book is part of a searchable database. (Photo by Howard Blumenthal, all rights reserved, do not duplicate or distribute without written permission.)

This wonderfully cluttered bookshop in Tenby, Wales, UK is precisely the sort of mess that Google Books tries to solve. In the bookstore, there is no search, no apparent organization whatsoever (except those lovely Penguin classics in the spinner rack). On Google Books, every word of every book is part of a searchable database. (Photo by Howard Blumenthal, all rights reserved, do not duplicate or distribute without written permission.)

Happily, my book, The Creative Professional, has not been violated by Google, but I will borrow from my own work to review the four “prongs” of Fair Use of copyrighted material:

  •  The first is the character of the use. “The focus of this factor is ‘whether the new work merely supersedes the objects of the original creation… or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.’”
  •  The second is the “nature and copyright status of the plaintiff’s work.” A work that is factual receives more protection than a work that is imaginative. Remarkably, an unpublished work is more likely to be protected than a published work.
  •  The third Fair Use test is the amount of material used. Fair Use protection is more likely to be extended when the percentage of the original work used in the new work is comparatively small.
  •  The fourth judgment is an evaluation of market impact. If the Fair Use was allowed, how might this use impact the market for the copyrighted material? If the copyrighted material is not currently in the market, or if its sales are minor and the use was otherwise fair, this factor may lead to judgment in favor of the defendant who claims that no infringement has occurred. However, if the material is not in the market, and sales are minor, but the use, based on the above three factors, was unfair, then discussion of this fourth factor may not enter in the decision at all. This becomes complex; whether you are defendant or plaintiff, you will want a smart lawyer who is well-schooled in the subtle features of Fair Use and copyright law.

Let’s add it all up:

  • Character of the use. Google’s use adds nothing new, except the ability for anybody to read AND COPY any portion of the copyrighted work without paying for it. I can’t argue that this is not, somehow, “transformative” but I can imagine the use of the term mostly in terms of, say, opening the back of an ATM and transforming bank customers into people who can take money freely, as they wish.
  • Nature and copyright status of the plaintiff’s work. It’s factual, and it’s under copyright for a reason. Copyright provides creative people with protection against unauthorized use. (This is a more complicated idea than one would think, so I’ll leave it to the lawyers to elaborate.)
  • The amount of material used. All of it. Every word. Seriously, is this what we really want as a society?
  • An evaluation of market impact. If we define market impact in two ways: sales of books and promotion of the authors for potentially greater market value, I think I can speak as an expert with regard to my own creative work: sales of books have not been affected in any measurable way, and NOT ONE PERSON has ever told me that they bought the book because they first saw it on Google. And I am no more famous than I was on the day before Google entered my life with their interesting theories and practices about Fair Use.

And let’s have a look at what the judge wrote in his decision:

  • Character of the use. “Google’s use of the copyrighted works is highly transformative…Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books…Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it “adds value to the original” and allows for “the creation of new information, new aesthetics, new insights and understandings.”…even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes. Accordingly, I conclude that the first factor strongly favors a finding of fair use.
  • Nature and copyright status of the plaintiff’s work. “the vast majority of the books in Google Books are non-fiction. Further, the books at issue are published and available to the public. These considerations favor a finding of fair use.” (Nonpublished works are subject to greater protection.)
  • The amount of material used. “Google scans the full text of books — the entire books — and it copies verbatim expression…Here, as one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books. Significantly, Google limits the amount of text it displays in response to a search.  On balance, I conclude that the third factor weighs slightly against a finding of fair use.
  • An evaluation of market impact. Here, plaintiffs argue that Google Books will negatively impact the market for books and that Google’s scans will serve as a “market replacement” for books… a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered — whether potential readers learn of its existence. Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays…Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales. Hence, I conclude that the fourth factor weighs strongly in favor of a finding of fair use.

Clearly, this is a topic that warrants a third article. See you tomorrow.

Google Books vs. Every Published Author, Part I

I have written several books. Perhaps you have purchased one of them. If you did, thank you. As a result of your purchase, I probably collected about $1.25 in royalties. You may have read the book, and perhaps, you lent it to a friend. You may have copied a few pages, or used the book for research, maybe even quoted from my book in your own work. That’s fine with me, and I am sure it would be fine with just about any author.

Of course, I wouldn’t expect you to make copies of the book and distribute it, for free or for a fee, and I certainly wouldn’t expect you to publish some or all of my book’s contents on the web–even if you believed that what you were doing would make the world a better place. I expect that you think about my book in much the same way.

Denny_ChinHowever reasonable, that’s no longer the way things work. Now, it seems, making the world a better place is reason enough to freely distribute copyrighted work without permission of the copyright holder. Here’s the logic and the new law of the land as set forth by U.S. Circuit Court Judge Denny Chin in a case decided this month in favor of Google (which scanned and distributed millions of books, without permission, in the public interest) and the Author’s Guild (which cried foul, lost, plans to appeal to a higher court, and may lose again).

“First, Google Books provides a new and efficient way for readers and researchers to find books. It makes tens of millions of books searchable by words and phrases. It provides a searchable index linking each word in any book to all books in which that word appears.” In short, Google Books completely transforms the use of books, especially in research, and it is currently in use in a great many research institutions.

Second, in addition to being an important reference tool, Google Books greatly promotes a type of research referred to as “data mining” or “text mining.” Google Books permits humanities scholars to analyze massive amounts of data — the literary record created by a collection of tens of millions of books. Researchers can examine word frequencies, syntactic patterns, and thematic markers to consider how literary style has changed over time.” So it’s fair to say that Google Books is a fantastic tool for scholars because it allows them to scan a lot of books quickly, identify and study patterns.

“Third, Google Books expands access to books. In particular, traditionally underserved populations will benefit as they gain knowledge of and access to far more books. Google Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices. Digitization facilitates the conversion of books to audio and tactile formats, increasing access for individuals with disabilities. Google Books facilitates the identification and access of materials for remote and underfunded libraries that need to make efficient decisions as to which resources to procure for their own collections or through interlibrary loans.” Unquestionably, placing a lot of books in a gigantic database is very useful for all sorts of reasons and provides tremendous public interest benefits.

“Fourth…Google Books helps to preserve books and give them new life. Older books, many of which are out-of-print books that are falling apart buried in library stacks, are being scanned and saved.” Absolutely right, but “out-0f-print” and “public domain” are not the same thing. Many of my books are currently out-of-print, and I plan to republish some of them because they are my property. Anything that is in the public domain should be rescued for the good of the public. Anything that’s out-of-print, but still protected by copyright, cannot be reasonably treated in the same way.

“Finally, by helping readers and researchers identify books, Google Books benefits authors and publishers. When a user clicks on a search result and is directed to an “About the Book” page, the page will offer links to sellers of the book and/or libraries listing the book as part of their collections.” That’s nice, but let’s consider whether the copyrighted work should be there in the first place.

Somewhere along the way, my books were published, and a public library purchased a copy. We all understand that the library will buy one copy of the book and then distribute that book to any of its cardholders. Neither the publisher nor I, the author, granted the library any kind of right to digitize the book’s contents. Google borrowed my book from the library, scanned its contents (without my permission) and now distributes one book in whole and another in part (without my permission). And because my book is a useful book, a Federal judge has determined that this activity is not only permissible, but in the public interest.

The judge’s justification: the Fair Use doctrine that allows certain uses of copyrighted materials for the public interest. For more about that, be sure read part two (and part three).

Thanks, Bill!

GinLane

Hogarth worked out every minute detail of even image: the angle of the robe behind the gin-soaked mother so that the eye is draw directly to her head; the leering muncher of the large bone, the position of the pawnbroker’s sign above their heads as a kind of upside down religious symbol; the distant grey of the growing city in which these denizens would never take part; so much more. That was the painter, and illustrator, William Hogarth’s intent: to tell remarkable, compelling stories through a series of images sold in a subscription series. His work was widely pirated.

If Bill Hogarth’s father, Richard, was alive today, he’d probably be writing a blog, cleaning up Wikipedia articles, and spending far too much time watching TED Talks. He was always busy writing what he hoped would be a popular play or a textbook for schoolchildren. As a boy, Bill tagged along with his father as he made the rounds from one coffee house to another, for that’s where the printers tended to meet their clients, customers, and friends. In a word, coffee houses in 1700s London were places to network. In time, Richard Hogarth managed to sell of his manuscripts to a a London printer named Curll; it would become a book that would “bring joy to learning through the playing of games” enabling (a then-radical) idea of learning without the direct assistance of a teacher. With tears of joy in his eyes, Richard Hogarth signed the publishing contract, and that, as would be inevitable in a story of this sort, was his undoing. When Curll demanded money to pay printing costs, Hogarth could not pay the bill, could not fulfill the requirements of a contract that he clearly did not understand. Richard Hogarth was placed in debtor’s prison, a nasty place where bribery could, at least, secure better living quarters for the fledgling author and his small family.

Son William was fortunate to secure an apprenticeship with an engraver, made some contacts, eventually earned some money, and became quite popular as both a painter and a storyteller. His prints, including the one pictured at the top of this article, were published in series, offered by subscription. The originals made money, but they were often copied (pirated) by unscrupulous printers throughout London. As he worked his way up London’s economic and social ladder, William Hogarth became a very popular painter, busy with commissions until the very last years of his long career. Battling syphilis (a very common theme in stories of this era), frequently lusting after young women (especially in his younger years), Hogarth often considered the fate of his father, and devoted much of his life to steering clear of any such problems.

Benefitting from his upscale connections, Hogarth began to pursue a new law, one that would protect creative people from piracy.  At the time, this was extraordinary; in London, and elsewhere, piracy was simply part of the system. Nobody much questioned the many illegal copies of an artist’s work. Printers published whatever they wanted to publish.  Standard business practices were uncommon. An artist who fought the system ran the risk of speaking truth to power, and could well end up in debtor’s prison, or worse (that is,  murders under dark bridges were extremely common at the time).

Hogarth had been painting, on commission, for a Select Committee of Parliament as they investigated gaols (now: “jails”). Hogarth painted the deliberations of the committee, made a friend of Sir Archibald Grant of Monymusk. In time, Hogarth visited the influential man in his home, and over tea and gooseberry tarts, they considered a plan. There was an act of Parliament from Queen Anne’s time that protected writers, so Sir Archibald, in his strong Scots accent, thought aloud:

The connection to the other Act is gud. They like laws that build on other laws.”

Sir Archibald wrote letters to several important people in Parliament. Hogarth hoped that James Oglethorpe would be one of them, but his London home was boarded-up. Sir Archibald explained that Oglethorpe was in the colonies, founding a new one called Georgia. A short time later, Oglethorpe returned, and Hogarth gained his support:

Of course, I’ll support you. The book trade is run by scoundrels and idle incompetents. Always has been, always will be. But we’ll fire a few shots at them, eh, Hogarth?…Show me where to sign!”

Hogarth’s Law eventually passed and became law. Of course, his very next set of prints were his poorest sellers to date–he probably made more money on the previous subscription series, even with the piracy. And then, of course, there was the matter of enforcement of the new law–uneven because there was no system to police the bookseller’s constant practices. Still, times did change, and we benefit from Mr. Hogarth’s good work today.

So: the next time you’re in London, make your way to Leicester Square (Leicester Fields in his day), and take note of the statue of the man who made the world safe for creative professionals.

And, if the story intrigues you, pick up a copy of a lovely novelization of his life entitled I, Hogarth by Michael Dean, from which this article is derived. There is much more to Hogarth’s story–a lusty one, in parts–intentionally reminiscent, in its way, of early British novels that were developing at the same time Bill Hogarth was telling his stories in pictures.

I-Hogarth-1-copy

I Want to Watch TV on My iPad (The Plot Thickens)

Here’s the original story published on March 6, 2012:

You’re looking at an array of television antennas. These antennas are used to capture local broadcast signals that you can watch, if you pay a monthly subscription fee, on your computer, tablet, or phone. Aereo (formerly Bamboom) is the company behind the scheme, and, as you might expect, they’ll be spending a lot of time in the legal system as they argue with broadcasters regarding the rights and wrongs of live retransmission (that is, if Aereo is to survive, the broadcast networks want to see monthly cash–just like they receive from the cable operators).

Ah, the free airwaves, the ones that broadcasters use for the public good. Ah, the intellectual property that broadcasters carry over those airwaves, the IP that cable service providers pay to carry. Ah, the unresolved legal gotcha!! Any company that attempts to make those signals available via a secondary distribution scheme must pay for the right, or so say the broadcast networks.

The price for the service? $12 per month. The debut date? March 12. The place: for now, the New York metropolitan area.

For cord cutters, this may be a terrific deal. But it’s unclear whether the courts will block Aereo’s progress, as they have with ivi.tv and others who attempted to climb the walls of the castle without paying the required tribute (or, as I’m adding in my updated version of this article… others who attempted to challenge the current system of copyright and payments for distribution rights to intellectual property).

Slingbox? That’s okay. Over-the-air mobile TV? That’s not ready yet, except in a few markets on a test basis. Watch over-the-air TV? Sure. Watch via cable or satellite? As long as you’re paying for the privilege. Watch on another device? Nope, not yet. Or, maybe the answer is yes. We’ll find out in a few weeks.

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Here’s the update that I wrote on March 12, 2012:

From Bloomberg: Predicting a “great fight” with traditional media companies, billionaire Barry Diller said he plans to expand his new Aereo Web-based television service to 75 to 100 cities within a year, reports Bloomberg.

Diller, speaking at the South by Southwest Interactive festival in Austin, Texas, noted that efforts by Walt Disney Co. and other media companies to cite copyright violations were “absolutely predictable,” since entrenched companies always protect their turf, the story says.

Want to know more? Here’s a bunch of links:

The tech explanation:

http://www.techspot.com/news/47467-aereo-offers-tv-over-internet-with-antennas-engineered-to-comply-with-law.html

The consumer angle:

http://www.forbes.com/sites/dorothypomerantz/2012/02/29/how-much-are-you-willing-to-pay-to-cut-the-cord/

The business story:

http://online.wsj.com/article/SB10001424052970204059804577229451364593094.html?mod=wsj_share_tweet#printMode

The investment story:

http://www.bizjournals.com/sanfrancisco/news/2012/02/14/iac-l20-million-aereo-barry-diller-vc.html?s=print

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Here’s the update as of July 17, 2012

Again from Bloomberg (July 13, 2012): “A U.S. district judge this week allowed Aereo to continue operating while television networks pursue a copyright lawsuit against the company. Aereo captures broadcast signals with small antennas and streams them to devices such as Apple Inc. (AAPL)’s iPad, without paying for the programming.” As a result of the ruling, Diller is now planning a nationwide rollout.

As I pondered what all of this might mean, I read an essay on TV NewsCheck’s website, written by television executive Lee Spieckerman. I contacted him, and we spoke for a while about the ruling and its implications. In short, he believes that Judge Nathan bungled the decision:

“We see loopy rulings from Federal judges all the time, and I think this fits into that category… She misread the governing law!”

Spieckerman’s argument is based in part upon law and in part upon common industry practice. His legal argument tracks back to a 1993 law which requires operators of paid television systems to secure the necessary rights from local broadcasters. The concept is called “retransmission consent” and that ruling has proven to be something of a windfall for local broadcasters as a result of the fees paid by cable operators in exchange for this consent. According to  Spieckerman, these fees are now worth about $2 billion to the commercial broadcast network, plus an additional several billion dollars to local stations. This, plus the additional revenues from political advertising resulting from the Citizens United decision, provide the advertising base necessary for local television news to survive. (Seems to me, we should all understand the economics and consequences of this new approach to journalism funding–a worthwhile topic for a future article). Back to his other argument: “there is no tradition in this country for renting antennas–nobody rents antennas!”

Digging deeper with Mr. Spieckerman, and the real argument emerges. This is all about copyright infringement, and protection of distribution rights associated with intellectual property. Judge Nathan’s ruling begins to disrupt a system by which cable operators compensate owners of cable networks and local stations. ESPN receives $4.69 per cable subscriber–do the math and that’s about $50 per year per subscriber multiplied by 100 million subscribers, and that’s $5 billion per year in subscription fees. Spieckerman believes local broadcast station fees to be 20-50 cents, but acknowledges that these deals are confidential. (Consider that Comcast, Time Warner, and other cable operators charge consumers charge those 100 million subscribers over $1,000 per year–1o0 million x $100 = $100,0o0,000,000, or $100 billion, also good raw material for another Digital Insider article.)

Of course, the local station operators are anxious to negotiate with Diller’s Aereo. And Diller is anxious to go with the Judge’s ruling because it requires no fees. For now, according to Bloomberg,

We’re going to really start marketing… Within a year and a half, certainly by ’13, we’ll be in most major markets.”

To which Mr. Spieckerman counters:

Who is going to be next? This is a pandora’s box, and when you start circumventing and tearing down the few elements there are in the industry and inviting the destruction of an important industry. If I have any intellectual property that I want to distribute, I do not want anybody able to steal my material.”

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