Re: Google Book Search and fair use

[Sandy Thatcher <sgt3@psu.edu>]

I'm puzzled by your last paragraph, Adam. By your reference to 
music, you seem to be alluding to the compulsory licensing regime 
that exists for music in certain of its uses. But that is not an 
"opt out" regime because copyright owners have no say at all in 
who uses their music; the only obligation the user has to the 
owner is to pay a mandated royalty set by a regulatory body 
established by law.

Also, there are already "scores of different ways of digitizing 
texts," yet we publishers seem to have managed just fine under an 
"opt in" procedure in dealing with them all. So, why does sheer 
volume justify switching to an "opt out" regime?

By the way, instituting a compulsory licensing regime will not 
forestall piracy: pirates will continue to do what they do and 
ignore any requirement for paying royalties, just as they now 
ignore seeking permission.

Sandy Thatcher
Penn State University Press


>Some portions of the Koehler article make it very clear that he is
>well aware that 'snippets' are not the issue:
>
>"Yet many of us are uncomfortable with the Google plan. It looks
>like an unfair taking of intellectual property. Google tells us
>that it will only serve up snippets. But we need to remember that
>Google is serving up snippets from the whole thing copied from
>the original. That "whole thing" may well be a copy of a work
>still in copyright." (from the penultimate section of his piece
>"I am not a lawyer")
>
>Perhaps the most troubling aspect of the 'opt out' solution
>proposed by Google is that it has operated as though it has the
>sole right to determine the 'opt out' procedure. That cannot be a
>fair and reasonable solution; its a nightmarish prospect for
>rights owners since there could be any number of different
>methods of secondary digitisation which involve a myriad of
>different 'opt out' protocols. At least the robots.txt (which was
>designed for web sites not for printed materials)  is a
>convention which is general and accepted by the industry.
>
>I have no doubt that there will be scores of different ways of
>digitizing texts in 20 years time and lots of digital formats.
>When digital copies are easily and trivially made from physical
>copies an 'opt in' permission has no chance of prevailing (see
>the fate of 'opt in' for recorded music in the last 30 years). In
>such circumstances an opt out procedure is going to be preferable
>for publishers and authors to an 'anything goes' principle. But
>the opt out procedure must be principled, fair and balanced.
>
>Adam
>
>
>On 8 Jul 2008, at 00:23, Sandy Thatcher wrote:
>
>>  Alas, this article perpetuates one of the myths about the
>>  publishers' suit against Google, that somehow it had something to
>>  do with those "snippets." That was never the issue. The crux of the
>>  matter was Google's attempt to substitute an "opt out" regime for
>>  the traditional "opt in" regime of copyright law.
>>
>>  It was also not the Google Book Search program as a whole that was
>>  in question, but only the Library Project. Many of us publishers
>>  joined the Google Book Search program soon after it was first
>>  announced and believe that it is definitely a Good Thing, making
>>  the functioning of the economic "long tail" possible.
>>
>>  The problem with the "opt out" approach, especially for smaller
>>  presses like ours, was that it imposed an unconscionable burden on
> > us to research all of our past titles for digital rights in order
> > to tell Google whether it could include those titles or not.
> >
> > Another issue for us was Google's donating a digital copy of each
>>  book to the participating library, thus displacing a possible sale
>>  (and thereby violating the fourth factor of fair use).
>>
>>  Whether Google will prevail in court or not depends greatly on
>>  whether the Second Circuit buys its argument that the use of its
>>  search mechanism is "transformative" (under the first factor). The
>>  Ninth Circuit has bought into this new and radical notion of a
>>  functional type of "transformative use." The Second Circuit so far
>>  has not, and there is reason to believe, from recent cases, that it
> > is continuing its tradition of interpreting what is
>>  "transformative" in a non-functional way. (This all goes back to a
>>  theory of fair use, now a classic in the field, that Judge Pierre
>>  Leval, who now serves on the Second Circuit Court of Appeals,
>>  published in the Harvard Law Review in 1990.)
>>
>>  I'm betting Google will not prevail in the Second Circuit and would
>>  have to go all the way to the Supreme Court to stand a chance.
>>
>>  For anyone interested in a more detailed argument along these
>>  lines, see my article "What Is Educational Fair Use?" in the April
>>  issue of Against the Grain, which I wrote as a reply to an ARL
>>  white paper by Jonathan Band on this subject.
>>
>>  Sandy Thatcher
>>  Penn State University Press