RE: Darnton on the Google settlement

["David Prosser" <david.prosser@bodley.ox.ac.uk>]

I'm afraid that much to Joe's exasperation, I'm sure, I still 
don't get it. Why would any publisher object to Google digitising 
books 'that literally will never be looked at'?  I really can't 
see the potential loss or harm to the publisher there.  And if 
Google wants to waste their money doing it then that's their 
problem.

I really don't understand 'copyright-squatting' either.  It 
sounds like one of those neologisms that are hysterical enough to 
imply harm while vague enough to avoid having to define that 
harm.  Technically, Google may be infringing the publishers'' 
copyrights (although this has never been tested and some felt 
there was a fair use justification for what Google was doing), 
but the idea that they are making copies available to users is 
surely wrong - that right remained with the publishers.

But to help me determine the hurt to publishers, let me describe 
a scenario. Publisher P has a distinguished history having 
publisher 10,000 titles over the past 100 years.  Google comes 
along and starts digitising these titles to allow searching 
across the entire content.  Publisher P objects and says 'for the 
8,000 titles where we know we own the rights we object', and so 
Google takes the titles out of the programme.  For the 2,000 
titles where the rights are confused Publisher P reluctantly 
keeps quiet and Google includes the full-text in their search 
engines.

Five years later the clever marketing people at Publisher P 
discover a cunning way of making money from the back-list.  They 
research the rights issues surrounding the 2,000 ambiguous titles 
and discover that they own the rights to 1500 of them, the 
remaining 500 have either past into the public domain or rest 
with others (the authors or their descendants, say). Publisher P 
writes to Google demanding the withdraw of the 1500 titles they 
have now conclusively determined that they own, Google accedes to 
the request, leaving 500 titles from Publisher P (but not owned 
by the publisher) in Google and Publisher P goes on to implement 
their cunning money-making scheme.

Under that scenario, what harm has Publisher P suffered?  It 
investigated the rights issues when it wanted to (i.e., when it 
had determined a market-driven reason to do so) and it has been 
able to reap the benefits of the back-catalogue that it owns. 
(Who knows, the presence of some of its titles in Google may even 
have generated some print-on-demand sales as readers perform 
searches over the full text, but let's leave that to one side!) 
The advantage is surely that rather than Google having to 
investigate the rights situation of 10,000 titles to get 500 
titles included, the publisher has had to investigate the 
situation of 2000 titles so as to withdraw 500 titles - and they 
have only done so when faced with a market need.  What have I 
missed?  Where is the harm?

David

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Joseph Esposito
Sent: 07 February 2009 01:14
To: liblicense-l@lists.yale.edu
Subject: RE: Darnton on the Google settlement

David has this backwards.  The question is not "what can
publishers do with a book if they don't know who owns the rights"
but "what kind of market opportunity is there that would lead me
to research the rights (or any other aspect of the publishing
process that requires time or investment)?" Publishers are
market-driven.  Since the marketplace is dynamic, publishers are
always trying to imagine what the future market will look like.
Is there a current or future market for a book that went out of
print in 1945? If the answer is yes, it's a good time to invest.
If the answer is no, the decision is likely to be to do nothing
and wait to see if the market signals change.

What Google has done is remove the market mechanism for
publishers.  Now investment has to be made not to meet a market
opportunity but to fend off copyright-squatting.

Is there a better way--better being defined as a means to meet
real user demand and not waste time and money with copyright
research and digitization for books that literally will never be
looked at?  You bet.  This is precisely what Google was doing
before it began its mass digitization project, and publishers
flocked to Google, making large and significant--and
targeted--investments in IP and digitization.  Did this method
solve all problems for all constituencies in one shot?  Of course
not.

And as for the comment that "we all lose out," who loses if no
one wants the book?  And I mean no ONE, not a big market.  There
is a place for just-in-time, and a place for just-in-case.  The
art is in making the distinction.

Joe Esposito


-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of David Prosser
Sent: Thursday, February 05, 2009 2:43 PM
To: liblicense-l@lists.yale.edu
Subject: RE: Darnton on the Google settlement

Certainly, I am being flippant.  But I do find the idea of a
cut-off rather depressing.  It sweeps into a fenced-off area of
control works that may be in the public domain, or where the
ownership can only be determined with great difficulty if at all,
or where if they knew the rights holders would be only to happy
to allow their works to be fully digitised.  So we all lose out
as we wait for the clock to tick down and for the deadline to
creep forward year-by-year.

But the opt-out option is much more interesting - I'm not going
to argue about the legalities of it all as they have been
rehashed over and over and also because I don't pretend to be an
expert in the matter.  But the concept!  The concept that we
include these works, but take them out if the rights holder
objects, that's much more exciting.  It brings more works into
the project, it respects the rights of the owners, and it allows
readers like me to find more titles that deal with topics of
interest.

If I can come down to earth with a sincere question: what can a
publisher do with a title in their list where they don't know who
owns the rights?

David


-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Sally Morris (Morris
Associates)
Sent: 04 February 2009 23:16
To: liblicense-l@lists.yale.edu
Subject: RE: Darnton on the Google settlement

David:  If I may say so, that's a rather flippant comment, coming from a
former publisher!

Google only has to determine the date of publication, which is after all
written in the prelims of the book - it's my understanding that they are
using a standard cutoff date - to determine whether or not the title is out
of copyright

The publisher, on the other hand, has to determine who currently holds the
copyright:  has it reverted to the author;  if the author has died, who is
the current holder...

Sally Morris
Email: sally@morris-assocs.demon.co.uk

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of David Prosser
Sent: 02 February 2009 23:01
To: liblicense-l@lists.yale.edu
Subject: RE: Darnton on the Google settlement

I find it amusing that Google is expected to determine the copyright status
of millions of titles before they can be digitised, but it is apparently
unreasonable to expect publishers to determine the copyright status of the
titles they publish themselves!

David Prosser
SPARC