Many oppose Google’s book digitizing project—but why?

Here is an e-mail I sent today to New York Times reporter Miguel Helft:

Dear Mr. Helft:

I just read with interest your October 6 article on the broad coalition of people and institutions in the literary and academic world that oppose Google’s project of digitizing millions of out of print books.

The problem is, you never get around to explaining WHY all these people object to the project. The most you say (and you don’t say it until three quarters of the way through the article) is this:

At a conference at Columbia Law School in March, the outlines of the opposition began to emerge. Critics said the deal would grant Google quasi-exclusive rights to commercialize millions of orphan works, books whose rights holders are unknown or cannot be found. That would make it hard to compete with, potentially leaving Google free to raise prices.

On the face of it, this is hard to understand. If the copyrights on the books have expired, or if the right-holders are unknown, Google is simply making available books on which no rights are held. It’s like publishing a book which was first published in, say, 1850 and to which no one has the rights. The publisher who is re-publishing this old book does not acquire rights in the book; the publisher is just publishing a book that anyone is free to publish. So how would Google’s publishing project close anyone else out or give Google some kind of monopoly power?

To repeat: at present no one has rights to these books and they are out of print. So how would Google’s publishing them in digital form take anything away from anyone?

Your failure to address that point means that your long article—1,300 words long—never makes clear WHY so many people are so alarmed by Google’s project.

Couldn’t you have spared, say, another hundred words to explain this crucial point?


Lawrence Auster

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Ken Hechtman writes:

A copyright that’s expired and a copyright that’s held by an unknown owner are two very different things. Just because Google can’t find a copyright owner doesn’t mean he doesn’t exist, or that his property rights don’t exist or that the Author’s Guild has any business transferring his property to Google on an opt-out basis.

LA replies:

With real property, which may have been transferred from one owner to another many times, determining ownership can get quite tricky. But copyrights, at least in the USA, are all under the aegis of the government. So if the holder of a copyright can’t be found, if there’s no known record of his holding that copyright, in what sense does he own it?

Evan H. writes:

The Times article doesn’t contain much background detail on the Google Books Settlement—See this.

The biggest problem as I understand it is that there is a significant body of work which is out of print, but for which the copyright holder is actually known. Furthermore, for a given out-of-print work, there is no simple way to tell if it is out of print due to lack of demand, or because the rights holder is unknown. Under the settlement which is being challenged, Google would be able to scan and digitize all of these out of print works, and the two options for the copyright holder are: (1) to opt out of this process and not have his works scanned, or (2) to submit a claim to Google by January 5, 2010 to receive a one-time payment of $60 per full book, or $5 to $15 for partial works. plus 63 percent of all advertising and e-commerce revenues associated with the works.

The problem with this is that it really does turn copyright on its head. There is no other situation where a publisher gains the right to publish a book if the copyright holder does not respond quickly enough. Furthermore, no other company is covered by this settlement, so Google would essentially have a government-sanctioned monopoly over the publishing of out-of-print works.

James P. writes:

The reason liberals oppose google books is that it provides a window into a world before liberalism and even without liberalism that is instantly accessible without any professors there to lecture you on how evil and exploitative that past world was. People reading google books can gain excellent insights into just how far we have come down the path of moral, intellectual, social, cutural, and political suicide. People reading google books can also appreciate that the current status quo is not “moderate”, as liberals proclaim, but radical extremism from the perspective of past decades. All of this is anathema to the liberal elites. Who knows what might happen if people had the information they needed to think for themselves? To control the past is to control the present, after all, and easy, uncontrolled access to the past is anathema to the total system of thought and behavior that is liberalism.

Evan H. replies to James P.:
While it’s true that Google Books provides a refreshing view of the world before liberalism, I don’t think that’s why liberals oppose the project. Anything published in the United States before 1923 is in the public domain, so there would be no problem for Google if they limited their scope to those works. The legal issue is that they want to publish works which are not in the public domain, and for which they certainly do not hold the copyright. Each party in the anti-Google coalition has its own motivations, of course. Amazon doesn’t want to see Google own the ebook market for orphaned works. Traditional publishers don’t want a powerful, technologically sophisticated competitor. Authors don’t want their work being used without their permission, and some academics are worried that a later challenge to Google Books will imperil fair use.

I do see the utility of the Google Books project—I think it would be amazing if there were easier access to orphaned works, and the copyright system is a mess for anything published in the 1923-1972 period. Furthermore, applying Google’s search technology to almost every book ever written is light years beyond what is available now. I just don’t see how Google can do it in a way that placates rights holders and fits within current copyright law.

October 8

Robert S. writes:

Contrary to your statement that “copyrights, at least in the USA, are all under the aegis of the government,” I believe that under U.S. law no special action is required to obtain a copyright—the author has it automatically. Wikipedia says “Some jurisdictions have required formalities to establish copyright, but most recognize copyright in any completed work, without formal registration.”

LA replies:

You’re right, I forgot about that.

Ken Hechtman writes:

You said:

“But copyrights, at least in the USA, are all under the aegis of the government.”

Not at all. You don’t need to register anything with the government to create a copyright. It makes life easier if you do, but there’s no legal requirement. You just need to publish your work (and mailing a manuscript to yourself counts).

Have you ever heard the story of the literary rights to “Conan the Barbarian”?

Robert E. Howard wrote the Conan stories between 1931 and 1936 when he committed suicide. He sold the stories to Weird Tales Magazine for a quarter-cent a word for one-time publication. He retained the right to republish them but never imagined he could or would do so. When he died, he had a will which left all his property to his father. The literary rights weren’t specifically mentioned but were implicitly included. Howard’s father had no living relatives so he left everything to his dentist. Again, the rights weren’t specifically mentioned. The dentist left them to his niece and her aunt on the other side of the family. At this point, they were known to be worth something and were listed in the will. In the early 1950s, fantasy writer L. Sprague de Camp wanted to set himself up as the custodian of Howard’s legacy. He had to track the two women down and convince them to sell him a half-interest in the rights. He couldn’t just say “Well, I can’t figure out who owns this so I’ll just assume it’s all in the public domain.”

And that’s another problem. For all works created after 1928, we can safely assume that copyright will be extended forever. Nothing written in the last 80 years is at all likely to see its copyright expire and revert to the public domain.

Posted by Lawrence Auster at October 07, 2009 06:00 PM | Send

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