At End of Act II: Are We Being Played for Fools OR Building an Enlightened Digital World?

The grand and dastardly scheme was to construct an organization to control/monetize the Orphans — might they get away with it?  It seems they might — in fact everyone seems to be playing the role that was laid out for them by Google et al.   As seen in the New York Times today, they may be getting what they want:  “Laying out a path forward, the [Justice] department said some of its antitrust concerns could be mitigated by ‘some mechanism by which Google’s competitors’ could gain comparable access to orphan works.”  If so, the plan to control and monetize would be left in place.

If this happens then we are being played for fools in someone else’s play.  And that will hurt access to books and book culture — past, present, and future.

With the Justice Department objection, we are just where the Google+TradeLawyers may have hoped we would be.  The question now is: do we play the concluding Act III of this saga according to their script or do we build a competitive and rich digital world?

Please grant me a moment to explain.  Act I:  Google makes secret agreements with libraries to scan all books, calls it “search”, is greeted as a savior.  When the details come out and are quite dark, it is too late as people remember it as a good thing.

Act II: Google is sued (surprise!) and secretly negotiates for maximum rights with as small a number of lawyers as possible. Having it be a class action is the stroke of genius — the parties get to rewrite copyright law.   Google+TradeLawyers make a backroom deal — Google would get to solely control the out-of-print book world (most of the books of the 20th century) and the lawyers from the Authors Guild and the AAP would share tens of millions of dollars.  Seems like a tidy deal.  But there are two troubles — copyright and anti-trust.  They need an act of Congress or the Justice Department to bless their cabal.

So where are we?  They drafted a settlement that is completely self-serving, while short-changing authors, publishers, libraries, other countries, and Internet companies (if you don’t believe me, please read the words of hundreds of well-reasoned objections to the suit).   The Justice Department did the right thing to cry anti-trust foul about the *two* monopolies that are proposed: Google and the Books Rights Registry. But interestingly, Google could only make a settlement where they were the only beneficiary because this was done as a class-action suit.  This bizarre circumstance means they could not offer their protection to any others because the others were not party to the suit and they wanted a small room to negotiate in — you can only commit others with a law or judicial approval.   So they set out to allow their monopoly to be blown and still rule the day.   Yes, they seem to have set this up so that they win if the Justice Department objected and said “anyone has to be able to get the deal that you got.”  (This idea of non-exclusive access is consistent with the rhetoric that Google has been slathering on the media for the last several months.)  And then, voila, Google would fall back on the 2nd tier monopoly, the Books Rights Registry, to allow them to control all out-of-print books.  Justice would then look like they got something, when in fact, they did not.

Not following me?   Sorry, but let me take another shot.    Let’s say the Justice Department says “anyone else should be able to do what Google has just negotiated for itself” and allows the judge to approve this complicated mess-of-a-settlement or goes to Congress who obliges with a law to that effect.   Then, Google, with a five-year head start, and setting out the rules of how the Books Rights Registry works, gets to be the only compelling offering for libraries to subscribe to.   If you get a five-year head start AND write the rules of the game, then if you lose, you are an idiot.  And if there is something we should all be sure of, these lawyers are not idiots.

So how do we know if we are being played?  At the end of the day, if the Books Rights Registry is allowed to control and collect money for the Orphan Works, then we have been had.   Remember, this is all about controlling the Orphans, or out-of-print works.   These works are those that are too expensive to research to figure out if they are the property of publishers or authors or even if they knew they would want them accessible.  The contracts are often hard to track down and they are not making money anyway.   If an organization gets to control the orphans, then they can determine who can have a complete library and on what terms.

The Book Rights Registry that has been designed by this cabal, which would be controlled by a few of the lawyers that wrote this settlement,  would control the out-of-print/Orphan works and be able to charge whatever they wanted for them.  Google, who has said they have scanned 10 million books, is off to a healthy head start.   A subscription service of bundled services will favor those with the most books, hence Google wins.

So what should we do to change this outcome?

Only one thing needs to be changed: Don’t let anyone control the Orphans/Out-of-print.  Only if an owner comes forward and prove they own a work (with penalties for overreaching, and not just weak anyone-can-claim-anything-with-no-negative-consequences as it is proposed now)  then they can  negotiate for money.  Otherwise Orphan/Out-of-Print works can be used by anyone, say, for non-commercial use.   This is roughly how the Orphan Works legislation works, which almost made it through congress last session.  But it should not be surprising that these guys are trying to substitute a closed system for that open approach.

What would happen if no one controlled the orphans?  Is would be best for the industry, best for libraries, publishers, authors, and best for the general public.

  • Even Google would be better off because they would be able to make the Orphans available to everyone not just to subscribers. (Remember, they are an advertising based business.)
  • The AAP would also be serving their publishers because Google would not be the only game in town to negotiate with.
  • Libraries would be better off because they could digitize, preserve, and provide access to millions of digitized books for researchers historians scholars and the general public.
  • The Authors Guild would be better off because they could build membership by offering to negotiate on authors behalf with many parties.
  • Many author associations and registries would compete to provide good services to those that sign up with them.
  • Authors would be better off because this would help create a diverse ecology of publishers, libraries, and readers.
  • The general public would be better off because they would leverage many search engines and many reading devices to buy and borrow digital books from many different booksellers and libraries.
  • The only loser is the Books Rights Registry, but it does not even exist yet.

This would be the World Wide Web of Books that we have been dreaming of rather than a Monopoly of Books.  Google has helped build momentum — let’s take it the rest of the way without blowing it.   This could be done by Congress or the Justice Department — both of which are working on this right now.

Free the Orphans.

9 Responses to “At End of Act II: Are We Being Played for Fools OR Building an Enlightened Digital World?”

  1. Glyn Moody (glynmoody) 's status on Monday, 21-Sep-09 07:26:58 UTC - Identi.ca Says:

    […] http://www.opencontentalliance.org/2009/09/20/at-end-of-act-ii-are-we-played-for-fools-or-building-… a few seconds ago from Gwibber […]

  2. Eric Hellman Says:

    Most of the 400 responses to the settlement agreement would probably blow a gasket at your suggestion to allow full use of orphan works- they come from copyright holders who object to the opt-in nature of the settlement agreement. I’ve suggested that the states may in fact own copyrights and may be able to direct use of the orphan works- aren’t they a sort of abandoned property that fall under state laws?

  3. More coverage of Google Books hearings « Feral Librarian Says:

    […] At End of Act II: Are We Being Played for Fools OR Building an Enlightened Digital World?: The folks at Open Content Alliance wonder if Google will get away with their “grand and dastardly scheme was to construct an organization to control/monetize the Orphans”. OCA claims all that needs to be done to change this outcome a ruling that insures no one controls Orphans/Out-of-Prints. […]

  4. Free the Orphans: Are we being played for fools in Google Books play? | ZDNet Government | ZDNet.com Says:

    […] reposting an insightful piece about the pull-back of the Google Books settlement by Brewster Kahle of the Internet Archive. Brewster was among the first to cry foul over the deal […]

  5. Gillian Spraggs Says:

    ‘This is all about controlling the Orphans, or out-of-print works…’

    ‘Only one thing needs to be changed: Don’t let anyone control the Orphans/Out-of-print. Only if an owner comes forward and prove they own a work (with penalties for overreaching, and not just weak anyone-can-claim-anything-with-no-negative-consequences as it is proposed now) then they can negotiate for money. Otherwise Orphan/Out-of-Print works can be used by anyone, say, for non-commercial use. This is roughly how the Orphan Works legislation works, which almost made it through congress last session.’

    I have always had a high regard for you, Mr Kahle. I am dismayed to find you playing the game (familiar from some of the supporters of the Google Book Settlement) of obscuring the distinction between ‘orphan works’ and out-of-print works. I recommend to you the words of the US Register of Copyrights to the House Judiciary Committee: ‘As a side note, the Copyright Office would like to underscore for the Committee that out-of-print works and orphan works are not coextensive.’

    The 2008 Orphan Works bill contains stringent provisions requiring diligent search for the copyright holders by those who wish to use an out-of-print work. You are leaving these provisions unmentioned and outlining a system under which rights-owners would have to come forward to claim their works: much like the proposals in the Google Book Settlement agreement, with the added highly objectionable aspect that more or less anyone (not just Google and its licensees) would be able to make unauthorized use of the out-of-print works of more or less any author, and it would be up to the copyright-holders (or their agents) to try and keep a continual (hopeless) watch. Moreover, there would apparently be no provision for terminating these uses if a work were to be republished by its legal owner(s).

    I agree that there are big problems over the provisions for claiming works set out in the GBS, but your proposal is not necessarily any fairer. It is not always possible to ‘prove’ ownership of a published work by producing, for example, old contracts. It is a fairly common practice for work in short forms – such as poems – to be published on a non-exclusive basis under mutually satisfactory verbal agreements. In such cases there is no paper trail.

    As for ‘negotiating for money': money isn’t everything. Privacy is one issue. Authors have a right to suppress, for instance, early works that they feel do not adequately represent their powers. There is also the matter of who republishes a work, in what context and and for what purpose. An author of erotic poetry may not wish to find his/her work on a website alongside crude pornography. A gay or lesbian author would have good reason to object if an anti-gay organisation hijacked his/her work for propaganda purposes.

    On the other hand, money is quite a lot. Your proposal substitutes for Google, which at least proposes to pay rights-holders something, ‘anyone’, who may or may not be in a position to pay adequate recompense (quite possibly won’t be, especially if there are very large number of works involved), and who is only required to pay at all if tracked down by the copyright-holder (or his/her agent). If these people are tracked down, they may prove uncooperative: what happens then? Will the copyright-holder be compelled to have recourse to expensive legal proceedings? (Even more expensive, if the copyright-holder is not a US national.)

    ‘Non-commercial’ sounds very fine, but it would cover the actions of unauthorized people who put in-copyright works on the web for free to ‘share’ them just as much as the activities of organisations with educational goals, like the Internet Archive. Either way, the copyright-holder sees the value of his or her property damaged or destroyed, with small likelihood of recompense.

    To sum up: there should never be a presumption against the author and in favour of the unauthorized user of other people’s copyright works: the onus should be on the users to prove that they have, at the very least, followed very strict guidelines on carrying out a diligent search for the copyright owners. Authors should never be placed in the position of having continually to prove their ownership of the rights in their work. Nor should they be compelled to spend vast amounts of valuable time tracing unauthorized uses of their works and negotiating with the publishers. Authors also have a number of perfectly legitimate reasons for wishing to control the uses made of their writings by other parties.

    I think very well of the Internet Archive; I use it for research, and prefer it to Google Books, since I find that the quality of the scanning is much more reliable. I would not like my feelings about it to sour. Google has angered a very large number of authors (including many who have opted into the Book Settlement, as in their estimation the lesser of evils) and in the process it has done, and continues to do, a great deal of damage to its public image. The Internet Archive, as a non-profit, dependent on donations of money and data, should be careful what it campaigns for, lest it tarnish its invaluable reputation.

  6. Press Review+: U.S. Department of Justice Would Like to See Changes to Google Book Settlement « ResourceShelf Says:

    […] At End of Act II: Are We Being Played for Fools OR Building an Enlightened Digital World? (via Open … Brewster Kahle writes: With the Justice Department objection, we are just where the Google+TradeLawyers may have hoped we would be. The question now is: do we play the concluding Act III of this saga according to their script or do we build a competitive and rich digital world? Please grant me a moment to explain. […]

  7. Justice and Google Books: First Thoughts About the Government’s Brief — Columbia Copyright Advisory Office Says:

    […] that the Registry will grow just enough to absorb that money?  Another proposal is simply to “free the orphans” and to make them equally available to everyone.  After all, why should anyone be collecting […]

  8. mark Says:

    what about the government policies about this kind of issues?
    I think this kind of act should be monitored.

  9. diana Says:

    I agreed with about 95% of the points you made, especially Act I, but where we differ somewhat is Orphans/Out-of-print. But all in all, I think you were dead on.