Tagged: copyright


What to expect on Monday (Google Book)

The now defunct version of the Google Book Class Action Settlement is a complicated document consisting of 141 pages, 160 definitions, 17 separate articles and 116 separate clauses, not including the substantial provisions contained within the 15 attachments where several important features of the deal were buried.

The initial draft of the agreement dates back to October 28, 2008, when Google announced that it had reached a settlement of the highly publicized class-action lawsuit brought by the Authors Guild and another equally important lawsuit brought by the American Association of Publishers.

Opposition from various quarters caused the parties to reconsider the details of the settlement and a new version is due on Monday November 9, 2009. In my recent article I compared the settlement to the most likely outcome of the litigation the settlement resolves. In this post I speculate about the contents of the revised agreement.

The essential features of the old settlement agreement were:

  • Money. Google made some pretty significant financial concessions, including one-time payments of over $100 million dollars and a revenue sharing agreement.
  • Digitization, Indexing & Search. In return for these concessions Google received the right to continue to operate its book search engine, substantially in its current form which is arguably consistent with copyright law’s fair use doctrine.
  • Commodification. The settlement also gave Google the ability to explore new revenue possibilities in cooperation with authors and publishers. The highlights consisted of extensive book previews, consumer e-book purchases, institutional subscriptions to the entire Google Book database and various other “New Revenue Opportunities”.
  • New institutional arrangements. Beyond the mechanics of the agreement itself, the key elements of the new Google Book universe were to be the “Book Rights Registry” and the “Author-Publisher Procedures”. Although the Registry received more attention from critics of the settlement, the Author-Publisher Procedures appeared to be the key vulnerability from a class-action fairness perspective. These procedures determine who controls the exploitation of a work within the Google Book universe and who benefits from that exploitation. In many cases the Author-Publisher Procedures act like a standard form publishing contract that supersedes deals negotiated before the importance of digital rights was widely realized.
  • Orphan works exploitation. The treatment of orphan works pervades all aspects of the current Settlement agreement. The agreement increased public access to orphan works by presumptively including almost all works in most commercially significant uses. Orphan works could be digitized, indexed, made available for partial-previews, sold as consumer purchases and incorporated into institutional subscriptions. As well as benefiting Google, revenues attributable to these uses will flow in part to the Registry, and to registered authors and publishers.
  • Orphan works monopoly. In its current form the Settlement only solves the orphan works problem for Google.

    What should we expect on Monday?

    The most desirable change from an antitrust perspective would be to allow Google’s competitors to exploit orphan works on the same terms as Google. The problem with this solution is that it further strains the boundaries of class action law and looks more and more like private legislation. This should not, in my view, be enough to derail the deal if the parties can show that all of the relevant sub-class interests were adequately represented.

    The Author-Publisher Procedures enhance the coordinating function of the Settlement by streamlining the incorporation of existing author-publisher contractual terms into the framework of the Google Book universe. However, where an existing author-publisher contract gives both parties some control over electronic exploitation, or simply fails to make any provision for electronic rights, the Author-Publisher Procedures effectively overwrite those contracts. These new terms do not appear to systematically disadvantage either authors or publishers, but they strike me as a one size fits all solution that could be substantially improved upon.

    Finally, I expect the revenue sharing aspects of the deal to become more complicated.


    Fear of a Google Planet

    Should we fear Google? This question, unthinkable ten, maybe even five, years ago, seems to dominate internet policy discussion today. AT&T is afraid of Google Voice. Apple might be afraid of the Google Phone. Microsoft is afraid that Google Apps will make its Office suit redundant. These fears are justified, but they are also good. In most cases Googlephobia is a condition suffered by competitors. Google will probably kill off some competitors, but it will force many more to continue to innovate and provide better products to the consumer at lower prices. So, yes, some people should fear Google. But should we the public?

    “Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of sight and hearing being instantly aroused. In both cases the eyes and mouth are widely opened, and the eyebrows raised.” Charles Darwin, The Expression of the Emotions in Man and Animals.

    In its pre-settlement incarnation, the Google Book Search (GBS) project was merely an astonishing attempt to build a comprehensive search engine to allow full text searching inside millions of books. The GBS envisaged in the Settlement (before the DOJ sent the parties back to the drawing-board) was much more ambitious. Not satisfied with digitization, indexing and limited display of books consistent with copyright law’s fair use doctrine, Google, the Authors Guild and a handful of publishers struck a deal which allowed for the commoditization of digital books as direct substitutes for paper copies. Subject to an opt-out and a few other exclusions, the Settlement swept in almost all books subject to U.S. copyrights and established an entirely new institutional framework for clearing digital book rights.

    My personal view is that justified astonishment at the GBS Settlement has, in too many cases, given way to unjustified fear. Google is still far from being the new Microsoft as the Department of Justice’s Christine Varney has asserted. It certainly does not act like it. Google’s track record of openness and innovation are heartening and there is very little evidence so far that they plan on abandoning their “don’t be evil” corporate culture.

    Googlephobia appears to be the foundation of some pretty wild assertions in the context of the Google Book dispute in particular. Google conceives that it is set to liberate out-of-print books from their dusty dungeons on the relatively inaccessible shelves of the worlds great libraries. Critics of the deal (and the initial more modest GBS) see plans for monopolization of hitherto non-existent markets, the destruction of libraries, universities and even the book itself.

    The Google Book Settlement was not perfect, but my own fear is that Googlephobia and the intervention of the Department of Justice have left us worse off than we would have otherwise been. The Google skeptics are right about a number of the Settlement’s shortcomings, but now that the parties renegotiating the deal we had all better hope that GBS version 3 is better, fairer, and more accessible — not just smaller and less ambitious.

    It might be naive to simply trust in Google, but the fear Google now inspires seems equally misplaced.


    Another Way to Understand Twilight and Authors

    Apparently Stephenie Meyer, the author of the Twilight series, started writing a version of the series from a different character’s (Edward’s) point of view and the early, incomplete draft was leaked onto the Internet. Jacqui Lipton’s post about Stephenie Meyer’s “reaction to the unauthorized release” of her partial draft reveals another way to think about what is going on here. I followed the link to Ms. Meyer’s post about the problem. I was quite surprised to see that Ms. Meyer has posted the draft on her web site while also expressing her view about reading the draft:

    I’d rather my fans not read this version of Midnight Sun. It was only an incomplete draft; the writing is messy and flawed and full of mistakes. But how do I comment on this violation without driving more people to look for the illegal posting? It has taken me a while to decide how and if I could respond. But to end the confusion, I’ve decided to make the draft available here (at the end of this post). This way, my readers don’t have to feel they have to make a sacrifice to stay honest. I hope this fragment gives you further insight into Edward’s head and adds a new dimension to the Twilight story. That’s what inspired me to write it in the first place.

    Why post the draft? One could simply ask readers not to read the draft floating around the Internet. Note that Ms. Meyer explicitly does not want to drive people to the unauthorized work. To me this move seems like a way to re-capture the attention that might have gone the sites with the download. In that sense, she may be using her reputation and attention power to undercut the benefits that may flow from unauthorized distribution. Of course there may be sales problems here as some may have been willing to pay even for the rough draft. But that idea probably does not cut off the usual claim that leaking will harm the final market. I would be surprised if those who read the early manuscript will not be more than happy to buy the final draft. In other words, the law often claims that the harm in such leaking or copying is that the unauthorized version is a substitute for the full work which I don’t think is the case.

    To be clear, I think Ms. Meyer doesn’t want people to read the draft. But faced with the draft being out there, her response is simply a wise strategy. She tells her fans 1) Don’t read it 2) If you have to read it, read it from my site, 3) Reading from my site is a way to stay “honest” and not “sacrifice” (I am not sure what is being sacrificed but I think it is integrity or loyalty to the author) which means not fueling those who are taking value away from her.

    There is an extra point here. When Ms. Meyer says she can’t continue with the book, she is giving honest information to her fans: certain acts (i.e., unauthorized copying and distribution of her work) upset her. In fact, they upset her enough that she will not finish the work in question. I don’t think this point is a threat. And, regardless of motivation, the move tells fans how she wants to interact with them. Insofar as there is relationship with her fans, Ms. Meyer has communicated what she expects. A Rebecca Tushnet pointed out in the comments to Jacqui’s post, there are already “over 100,000 Twilight stories–some of them from Edward’s perspective–available at fanfiction.net. How Ms. Meyer feels about those stories may differ from how she feels about her draft being distributed without permission. So as Jacqui points out this one is personal, but I think it may also be professionally wise.

    P.S. Those interested in more on how reputation and attention will be a key asset in an online world may want to read my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System.


    More Python, Fair Use, and Attribution

    So I had my iTunes open and on shuffle yesterday when Monty Python’s “Finland” came on. That was what prompted me to check YouTube for Python offerings. Now the Python chaps have offered their own channel. This video has the usual Python cheek as they talk about YouTube, being ripped off, and the open plea that viewers buy the products after they enjoy them. The clip also touts the troop’s interest in showing the clips as they wanted them to be shown and in high quality.

    Fun stuff but here is the problem. The Monty Python Channel has nowhere near the quantity of Python material one can find elsewhere on YouTube. I wonder whether the Python folks chose to leave the other posters alone and offer what they see as the best or most in demand clips in a branded area. Then again, they may have decided to go after the other posters too. And to think this train of thought all started in Finland. Finland? Yes, because I could take a CD, put into MP3 format, and listen to “Finland” as a shuffle tune. But wait. There’s more! The devil you say. No, really.

    Check out the clip for Finland below. It is a good quality stream of the music. It is funny and adds a fair amount of creativity. It attributes the visual work and the software to make the work. It also acknowledges Python as the source of the music. In addition, it has embedded ads to allow a viewer to buy the song from iTunes or Amazon. Now given all the new works, Python’s failure to offer a similar video (even if they did the video is a new work albeit one needing the song to make much sense), AND the ads is it fair use? After all YouTube and the poster probably take a cut, as would the seller, but as the Python folks acknowledge they too are giving access to and enjoyment of their clips away for free with the plea that people buy their work. As my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System argues these facts present confusing situations for intellectual property. Sharing, attribution, some control, encouraging purchases, remixing, and more can all be seen in my encounter with Finland which may be my new personal metaphor for IP. Watch the video and tell me what you think, fair use, attribution, new work, infringement, all of the above?


    Copyright Irony, Of Royalty Boards and Google Book Deals

    Earlier this week Live365 filed a law suit arguing that the Copyright Royalty Board is unconstitutional. Today is the deadline for authors to opt-out of the class in the Google Book Settlement. The idea that this Settlement ought to approved is more than suspect. Others have noted the myriad issues the settlement raises. As Pam Samuelson has put it “Exploiting an opportunity made possible by lawsuits brought by a small number of plaintiffs on one narrow issue, Google has negotiated a settlement agreement designed to give it a compulsory license to all books in copyright throughout the world forever. This settlement will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books. How audacious is that?” The nature of the class, whether class action (which I usually see as better suited to resolving tort rather than property claims) is the correct approach, the way in which this class purports to operate, and the anti-trust issues alone should make it clear that this deal, although possibly offering benefits, should be slowed down and put under further scrutiny.

    It is ironic that one one hand Live365 has been able to raise a Constitutional challenge to a copyright royalty issue, and on the other hand what is surely a turning point in copyright history and the question of how society governs access-to-knowledge is subject to a private deal between private parties who have little concern for society’s claim to access and use the works in question. To be clear, I am not arguing that it is improper to figure out a possible payment system. Samuelson’s work on mapping the public domain is clear about reasons we may need and want to have certain groups build, maintain, and charge money for information repositories. The questions that concern me are what will that system look like? Will it allow innovation and competition in the provision of the similar services or will it hinder such efforts? Is this service a natural monopoly? Will the incumbents after the deal is done be able to extract rent? What about the different uses that are conflated here (e.g., higher educational uses, research uses, social networking uses, and more)? What about the spillovers that could come from a more open system such as empirical research on the data in the works and computer science work on the way language operates?

    I have begun a close read of the 140 page contract and its appendices. I urge all of you to take a look at the contract. It reminds a little too much of entertainment deals I have read in practice. Some clauses are opaque; some bizarre. All protect one party and ignore others. In a Hollywood or other publishing arena that may be O.K. When talking about the modern Library of Alexandria, it is not.

    To whet your appetite about why one should not accept the deal at face value look at this statement of objectives:

    The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.

    My initial comments are at the Public Index in Section IV. But in brief, the assumption that the objective of market rates and the realization of broad public access are compatible is on the surface semi-plausible but facile. The following sub-clauses make it clear that broad public access is not the animating force on the deal. Intense control over access and the ability to price discriminate (including a ban on k-12 access unless the Registry (publishers) agree) are the goals. Again if others read the sections and can show where I err, I am all ears.

    As a general matter, if anyone can share why class action was wise and/or a good fit here, please share your insights.

    Last, I suggest that this deal is so important that Congress has to be involved. As private re-writing of the Copyright Act is not the correct way to proceed. It will likely take away the chance for copyright to roar into the twenty-first century with a winning solution for authors, publishers, and society at large and instead will repeat history with the system being captured and benefiting only a narrow class of stakeholders.


    Saved By A Music Contract? Artist Invokes Clause and Gets Her PhD

    As anyone who follows the music industry should know, the history of record labels, artists, and exploitation is long and a bit dirty. K.J. Greene has argued that the problems of race and music business practices should be part of the reparations debate. Today, however, it appears that a pioneer of hip-hop, Dr. Roxanne Shante, has her PhD from Cornell because of her recording contract. Now before one thinks that all was close and loving, know that Dr. Shante had to fight with the record label for quite some time before it honored the clause which stated that the label would fund her education for life. Luckily the Dean at Maymount Manhattan College allowed then Ms. Shante to attend the college while the bills were still sent to Warner Music and being debated by the company. Although there is a silver lining of sorts here, it is sad that Dr. Shante sold more than 250,000 records, saw little of the money she generated for the label, and left the business because “‘Everybody was cheating with the contracts, stealing and telling lies,’ …And to find out that I was just a commodity was heartbreaking.'”

    As general take away, it seems that any corporate entity that is taking on a young talent in sports, music, or any other field, ought to consider such a clause as a good thing. Agents should at least insist on it. The odds are already stacked against many of these talents. In some cases they are giving up education time to help a sports program. In others, like Dr. Shante’s, the talent may “be a teenage mom, come from the projects, and be raised by a single parent, so as the article about her put it, the clause may be “a throwaway” because no thought it would come to anything. In other words, I hope these clauses persist and even appear more often. It seems quite fair and an oddly (or really unfortunately) low-risk bet for labels and other industry players in these deals.

    You can go here to hear the entire song “Roxanne’s Revenge.” (imeem only had the 30 second clip for embedding).


    Maps and Legends

    Space the final frontier. These are the voyages of … ah, you know the rest. Exploration and the idea of frontiers seem to capture an important part of the human experience. The possibility of finding something new, of entering uncharted territories excites people. And, although one may want to keep the secret of the Northwest Passage or the Straits of Magellan a secret, sooner or later a map is created to increase the amount of benefit that can be extracted from the discovery. Yet with the world seeming to collapse into one connected place, the role of maps has changed. In short, maps are a new frontier for property and privacy.

    As Jacqueline Lipton noted Google Maps has enabled the persistence of race discrimination. Google Maps has also spawned some other curious creations and connections. For example, I wrote about the flap over what is a true IMAX screen and that folks put together a map of IMAX screens with information about the screen size. The H1N1 (aka swine) flu epidemic revealed an interesting dual use for maps. One person created a frequently updated map with information about claimed incidents. I was curious about the source and found that one person at, what else, a bitotech company focused on recombination and disease, was behind the map. In addition, a group called Health Map seeks to offers a map that connects “disparate data sources to achieve a unified and comprehensive view of the current global state of infectious diseases and their effect on human and animal health.” On the light side, Total Film has a feature that uses Google Street view to show 25 favorite film locations.

    As seems always to be the case, folks will probably soon argue about who owns what. The more interesting point might be the way maps show the malleability of information. In some hands, maps show fun things like where a film was shot. In other hands, maps provide useful epidemiological information. Yet, certain home owners may not be pleased about having tourists show up to gawk at what had been a quiet abode. Cities, counties, and even states may be upset if lay people assume that suspected or even confirmed outbreaks mean they should create a de facto or quasi-quarantine. Last, knowing where specific racial, religious, and other groups are can all too easily lead to mob behaviors.

    The information mill churns. We have to sort it out. Old tools have new impacts. Today maps pose challenges. Tomorrow it will be something else. I am never certain that the law is the best way to manage these changes. Nonetheless, we have to consider what they are and how they function in case the law is asked to do so. On that note, please share any other creative and/or challenging uses of maps of which you are aware.

    Last here is a little music for the trip:

    Maps And Legends – R.E.M.


    Comedy, Copyright, and a Virtual Symposium

    Late last year the Virginia Law Review published a provocative and entertaining article by Dotan Oliar and Christopher Sprigman (both on the Virginia law faculty) on copyright law and the social norms of stand-up comics. There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008).

    Earlier this Spring, the law review’s online supplement, In Brief, published a series of responses to that article, by me, Katherine Strandburg, Jennifer Rothman, and Henry Smith:
    Jennifer E. Rothman, Custom, Comedy, and the Value of Dissent
    Henry E. Smith, Does Equity Pass the Laugh Test?: A Response to Oliar and Sprigman
    Katherine J. Strandburg, Who’s In the Club?: A Response to Oliar and Sprigman
    Michael J. Madison, Of Coase and Comics, or, The Comedy of Copyright

    And In Brief just published Oliar and Sprigman’s great response to all of the critiques, From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create.

    The collection of pieces makes up an engaging virtual symposium on a topic that is simultaneously important (the relationship between law and social norms) and entertaining (how often do legal scholars get to dedicate professional energy to Lenny Bruce?). 

    This kind of extended public colloquy among scholars is among the best uses of the online supplements that many of the top law reviews have created.   The “virtual symposium” could be even more effective if the elements of virtual symposia were collected (tagged, perhaps) and publicized as such (“Symposium on Law and Social Norms in Stand-Up Comedy”, or something like that) in both new and traditional electronic media (Westlaw, Lexis/Nexis, CILP, the law review websites themselves and their posts to this blog and others, SSRN, etc.) 

    That suggestion is directed to all those students, librarians, indexers, and bloggers who contribute to the ecology of online information about scholarship, and it comes from the perspective of the reader.  Here’s a suggestion from the perspective of the author.  If your piece is being pitched at a journal that hosts an online supplement, consider offering to partner with the student editors in soliciting critiques and responses, and designing an issue of the supplement that constitutes, in effect, a low-cost symposium on your work.