Re: Note from Tim O'Reilly

[adam hodgkin <adam.hodgkin@gmail.com>]

I suspect that Tim O'Reilly was only 'taking this out of the realm of
copyright law' because he was making the point that whatever the law of
copyright now says, the circumstance in which these rights can be asserted
or defended is changed by technology innovations. Its rather probable that
Google will endeavour to remain on the right side of the law in the matter
of copyright.

== Are book publishers aware that music publishers put almost identical
warnings on CDs to the blanket prohibition on copying storing transmitting
etc that book publishers put on title pages? These printed
music-prohibitions are now almost as much observed in the breach as in the
performance. When copying print to generate electronic copies (PDF or XML)
becomes as prevalent as audio recording is now, publishers will be unable
to insist on or enforce copyright prohibitions that can now be enforced

== Joe Esposito points out that publishers do not usually own the
copyrights that they assert and whose rights they depend on. So its a
mistake to imply as he does that its only the publishers property rights
which are at issue. What is at issue is also and primarily the AUTHOR'S
property and publishers owe duties to their authors as well as to their
shareholders. I make this point because if it becomes apparent that
'knuckle-headed' publishers are not effectively exploiting electronic
rights that they commonly seek from authors their position in the market
is long term at risk -- much more at risk than by doing a deal with Google
which encourages Google to deliver revenues to publishers and authors.

Google's position is strong in the sense that they have parked their tanks
on the lawn and will be showing what can be done with out-of-copyright
material and with the in-copyright material of acquiescent publishers.

We should perhaps interpret Google's pause in the matter of processing
in-copyright books in library collections as a matter of 'reculer pour
mieux sauter'.

Adam

Adam Hodgkin

On 8/15/05, Joseph Esposito <espositoj@gmail.com> wrote:
> Tim O'Reilly is a gifted entrepreneur, who has consistently bet right on
> digital media.  His recent letter, which was posted to this list, makes
> some strategically astute comments about the current fracas over the
> Google for Libraries project, which, as everyone knows, has disconcerted
> not a few publishers.  I wish to remark on one section of that post:
> 
> "Let me take this out of the realm of copyright law for a moment, and ask
> about which side in this debate is going to provide benefit to both
> authors and readers.  Is it google, or is it the publishers?"
> 
> While O'Reilly may be strategically on target, philosophically there are
> questions about his formulation.  (Yes, let's all appreciate the irony in
> this, as when we chuckle about the Frenchman who remarked:  "That is all
> very fine in practice, but it doesn't fit the theory!")  Stepping outside
> copyright law sounds like a nifty idea.  I would also like to step outside
> the laws on recreational drugs, AMT, and the speed limit on Silicon
> Valley's Route 101.  Stepping back into the law, the question is not for
> whose benefit a particular program is but who owns the property in
> question.  Copyrights are owned by their authors at the act of creation.
> Often authors assign these copyrights, in whole or in part (the norm), to
> publishers.  If a publisher is knuckleheaded enough to insist on charging
> $10,000 for a novel, which will then sell no copies and make not a penny
> for the publisher, well, that is the publisher's right.  I once heard an
> otherwise mild-mannered librarian express outrage that a publisher would
> not permit a library to scan a work under copyright to put it on
> ereserves.  "That book is part of our heritage!" the librarian said.  I'm
> afraid it's not:  it's the publisher's property, subject to the
> deliberations of the courts on what constitutes fair use.  If it were
> truly part of the public's heritage, there would be no need to invoke fair
> use.
> 
> One perspective, and not the only one, on matters of copyright, Open
> Access, fair use, and so forth is that it is a clash between innovation
> and appropriation.  Innovation requires capital; whether it is private or
> public capital is beside the point:  someone has to put gas into the car.
> O'Reilly Media has financed the creation of copyrights and then has gone
> on to do very creative--and profitable--things with them.  I know of no
> argument that would prevent someone from financing copyrights with the
> intention of making some or all of the rights available to the public free
> of charge.  (This is why in an earlier post I commented, to the outrage of
> some publishers, that it is entirely appropriate for a funding agency such
> as the NIH to insist on Open Access publication of articles based on
> funded research.)  This is different from appropriation, where copyrights
> were financed with one set of aims (for the benefit of shareholders), but
> are now being eased into the public realm, a public, it should be said
> with the despair of an old-line Liberal, that is showing less and less
> inclination to fund civic infrastructure.  Random House, Reed Elsevier,
> John Wiley, and their ilk may all be making a big, big mistake, but it is
> their mistake to make.
> 
> A final note and anecdote on fair use.  In my view, it is unfortunate that
> so many people claim to know precisely what constitutes fair use.
>  We can argue about this all we want, but these matters get decided in the
> courts with very specific sets of facts, courts that we all pay for with
> our taxes (including AMT). The anecdote:  I have listened in on numerous
> conversations about the now-notorious judgment against McDonald's won by a
> woman who burned herself with a cup of coffee.  My Libertarian friends are
> outraged by the judgment.  My Progressive friends (there are more of
> these) are gleeful that McDonald's got its comeuppance.  What the
> Libertarians and the Progressives share is that neither of them has read
> the court transcript. -- Joe Esposito