On Publishers

NOTE: This paper was originally submitted for Spring 2009. The following is a revision on the paper. I've preserved the original comments and the response to them even though the content of this revision is substantially different from the original, which consisted of a commentary on the Google Books Settlement v.1.

-- RazaPanjwani - 03 Aug 2009

• I find this all rather puzzling. The judge is approving a class action settlement and must find that it is in the public interest. So why the doubt about whether "the Court is the appropriate body to be solving the issue for any party other than Google"? The hostility of the content industries to a default of freedom for orphan works has nothing to do with whether they think rights they hold are going to be orphaned, and everything to do with their effort to minimize the total size of the public domain, with which proprietary culture competes.

• What is the technical fact-pattern on the basis of which you believe you need Google (or any "search engine") to search inside copies of texts you already own?

• Why should we bother with all this talk about compulsory licensing? Once cheap book rippers are available everywhere, neither Google Books nor the publishing oligopoly will have any more capacity to control distribution of text than the music industry now has in its future. As there is no prospect whatever of moving the compulsory licensing legislation you say we ought to be supporting, and as there is no reason to suppose we need it anyway, what's the practical import of this argument?

Eben,

The comment about the court being the appropriate body was in reference to its power with regards to you and me. The major complaint about the settlement and orphan works (as far as I understand) is that it only releases Google from liability. As you or I are not parties to the suit, I don't think Judge Chin can alter the settlement to include us. Then again the plaintiffs did suddenly claim a class of all copyright holders in printed works at the last minute. Unless I misunderstand the procedural mechanism, I think Congress will have to alter the statute in order to free anyone who isn't a defendant to the suit from liability with regards to orphan works.

In discussing this topic with DH over the summer, he mentioned that opposition to the most recent versions of an orphan works legislative solutions have been coming from "smaller" media. While large content makers may be generally hostile to competition from "free" content in the public domain, they might also be arrogant enough to believe that they have a superior product to most things available for "free." They may even be right in that regard (a discussion I had with the guy who runs this.) And wouldn't new mashup/remix/whatever created from orphaned/public domain works be copyrighted anyway? Content companies can buy up upstarts, or the rights to their work.

As for compulsory licensing, I believe there's a need for it in order to enable competition among aspiring digital libraries. Cheap book rippers make it easy for you and I to digitize quickly (I'm curious, how accurate is the accompanying OCR?), and we can theoretically avoid notice because we'd be off the radar. The analogy to music holds if you're talking about swapping digitized print media over the net. That presents all the same problems to publishers as digital music does. But that's not what I was concerned about.

A day may come (and it may be soon) when we'll all be able to each possess, in digital format, a universal library of everything ever printed. The library will also be completely indexed and easily searchable. Until that day, aspiring digital libraries provide large moving targets for publishers to sue. If one believes that their needs to be competition in the field to spur development in OCR, indexing technology, scanning speeds (this is kind of cool, by the way), or anything else, or just that Google needs a foil, then lowering the barrier to entry is a good idea. If on the other hand Google is pursuing a goal that will soon be pointless, then there's no point to compulsory licensing.

This brings me back to the second bullet point - in context, my point regarding having a search engine search my own books was that intuitively I shouldn't have to pay anyone to digitize a book to enhance its utility (making it searchable using a computer) if I already paid for it. If I can easily replicate on my own Google's OCR and search capabilities, then wouldn't "need" them to search for me per se.

-- RazaPanjwani - 14 Aug 2009