The Right to Not Copy

“Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords…”

Copyright Basics
United States Copyright Office

There is a major legal drama going on right now that will affect what you read in the future.  It involves some of the biggest powers in the literary world: Amazon; the American Association of Publishers; and the Authors Guild.  Groups and individuals filing documents include such diverse entities as: the American Association of People with Disabilities; the Urban Libraries Council; Sony; Arlo Guthrie; David Eddings; and the Federal Republic of Germany.

The pivotal player, the one that started the whole process, is a company not associated with paper and ink, an icon of the virtual world: Google.

Google made a name for itself as a search engine for the internet.  It makes sense for it to try to extend that reach, and it has done so successfully.  With Google Earth, for example, it essentially took places (like your house), and digitized them.   It has (imperfect) translation tools, spreading the value of Google’s searches for English speakers to websites in Arabic, Hindi, and Norwegian. 

It was a logical move for Google to want to get paperbooks onto the internet, and accessible to its search services.

Google began to scan books.  It made arrangements with libraries to have access to their collections.  It patented a method of improving the Optical Character Recognition process that turns a scanned image into text.

A challenge arose to Google’s actions. 

“On the one hand information wants to be expensive, because it’s so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.”
–Reportedly said by Stewart Brand in 1984

Many people only quote this portion: “Information wants to be free.”  The dichotomy in Brand’s statement is important.  If we accept that information it is a commodity that requires human effort, skill, talent, and time to produce, it seems reasonable that it is a marketable product.  Markets imply competition.

If Google had only been scanning public domain books, that would have been one thing.  Public domain books belong to the public: anyone can reproduce them and sell them.  This is part of copyright law: for example, books first published in the United sates prior to 1923 are in the public domain in the United States.

Google was also scanning other books, ones that were still under copyright protection.  That was a much more complicated situation.  There are conditions under which scanning a book that was under someone else’s copyright could be legal, even without the rightsholder’s consent.

The Authors Guild (sic) , a group that calls itself “the nation’s leading advocate for writers’ interests in effective copyright protection…”, and the Association of American Publishers were the plaintiffs in a settlement between those groups and Google.  The Motion for Preliminary Settlement Approval which was filed on October 28, 2008 in United States District Court Southern District of New York.

Google did not admit any wrong-doing in the settlement, and agreed to pay a minimum of forty-five million dollars to authors who works were digitized prior to an opt-out deadline.  Google also agreed to pay thirty-four and one half million dollars towards a registry that would represent the interests of rightsholders, and coordinate payments to them, as well as finding information from rightsholders.

This is a complicated settlement that will allow Google to continue to scan books, and arranges for rightsholders who make claims to receive payment.

Other groups have filed statements, both supporting and opposing the settlement.

Some media articles have painted this a battle between commercial interests: among others, Google and Sony on one side, and Amazon, Microsoft, and Yahoo on the other.

Certainly, there are titanic economic forces involved, and the interpretations of the settlement and arguments for and against deserve fuller treatment in later posts.

I see this, though, as a classic social struggle.

There is the position of the societal benefit in Google making books available to readers which otherwise would not be. 

The opposing viewpoint is the right of individuals to control the uses of their creative output.

Both sides have legitimate arguments. 

To be clear, I don’t think any of the commercial entities are working solely for altruistic aims.  There is money to be made (or lost) depending on the final determination.

What the settlement does, though, is shift the burden away from the publisher to get the rights before doing the book to the author, to choose not to allow that publication.

When authors were granted copyright under copyright law, that was an agreement between the United States government and that individual writer. Yes, that agreement could be altered by law (and has been a few times).

This, though, is a proposed settlement that requires authors to say that they do not want books published by Google. It creates a registry that purports to speak on behalf of authors. This is a fundamental alteration of the current arrangement.

Before the agreement, Google would have had to find an author (or other rightsholder) to get permission to publish the book. If a person could not be found, the book might remain unpublished…which might have been the intent of the person who created the work.

Under the settlement, Google makes an effort to see if the book is in print. If not, and no one has stated an objection, Google can publish the book. Google then gives part of the money to the Registry, which holds it in case the author claims it.

The author (or the author’s heirs) or other rightsholders, now have to be vigilant, which was not part of the original agreement with the government. If you file an objection that your book is still in print, or simply that you don’t want it published, Google has thirty days to rectify the situation.

Here is one paragraph from the proposed settlement to illustrate this:

“Mistakes. If a Book was mistakenly determined by Google not to be Commercially Available, then the Rightsholder of the Book may notify Google, or may authorize the Registry to notify Google, of such mistaken determination. To verify the claim, the Registry will provide, upon Google’s reasonable request, information supporting any assertion by the Rightsholder of the Book that the Book is Commercially Available. If the Rightsholder demonstrates that the Book is Commercially Available, then, as Google’s sole obligation and the Rightsholder’s sole remedy (subject to Section 3.2(d)(iv) (Disputes)), Google shall correct the determination as to whether the Book is Commercially Available within thirty (30) days.”
–Section 3.2 (d) (iii)

In other words, if an author is selling a book, and Google scans it and doesn’t find out that the book is being sold, Google can display the book.  The author has to notify Google or the Registry of the situation.  The Registry presents the evidence to support the author’s claim.  If Google accepts the evidence, Google has thirty days to stop displaying the book.

People argue that the public benefits if a book is available to them when the rightsholder can not be located. The loss of that book (until it falls into the public domain) is seen by those people as a societal loss.

However, the book did not exist until the author wrote it. The author was granted control over that material (except in certain circumstances) by the US government. It shouldn’t be up to entities that stand to benefit from the book being published to agree that the author has to defend the choice to publish or not publish in an unprecedented manner.

If the United States government determines that there is a “must keep published” need to maintain copyright, that change should be made by the elected Congress of the United States.

As a reader, I would love it if every book I ever wanted was available to me. As an author, I don’t want that choice of availability or not taken away from me, except as defined by law.

There are many other elements of the decision that deserve discussion.  If you are interested in reading it for yourself, it is here:

The Public Index has related documents, including those filed supporting and objecting to the settlement:

I know this is a controversial issue, and one that has sparked passions on both sides.  Even though I don’t think it is the motivation of all of those submitting objections to the settlement, I think opposing it benefits individual authors.  I am interested in knowing what you think.  Please feel free to leave comments here.

Thanks to Andrys Basten of A Kindle World for proofreading and suggestions that helped this article. 

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.


4 Responses to “The Right to Not Copy”

  1. Man in the Middle Says:

    My understanding is that copyright law does not prevent copying. Rather, it requires payment for copying. Like patents, its goal is to get the information out, not hide it away, and in both cases that requires sufficient payment to the author/inventor to entice them to grant others access to their ideas.

    I have written several books that are no longer in print. If Google finds and scans them, that’s OK with me, as I was paid for that work long ago and can’t imagine anyone still being willing to pay much today to read about Commodore computers from the ’80s.

    • bufocalvin Says:

      I appreciate you posting!

      The quotation at the beginning of the article addresses copying, not payment for copying. The rights are specifically granted to “published and unpublished works”, and presumably, one is not being paid for unpublished works.

      The goal seems to me to be to protect the author’s rights, rather than “to get the information out”.

      For example, there is this quotation from FL-102:

      “Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair…”

      It doesn’t say situations under which payment is not required.

      My reading of the law (and I’m not an intellectual rights attorney, just an interested layperson) is that copying the material in and of itself (even without intent to sell) could be an infringement. There are certainly cases where copying would not be an infringement. Selling someone else’s material does increase the losses for that person, of course, but I don’t think that’s the minimum requirement.

      By the way, I had a Commodore PET! It might be nostalgic to read about it. 😉 I’m glad it would be fine with you if Google scanned the materials (and you might even get some money from it eventually). The payment could, I think, come from ads on that page, although I need to verify that. That’s your choice…but it might not be everybody’s.

      Thanks again!

  2. In the settlement « I Love My Kindle Says:

    […] the settlement By bufocalvin I wrote earlier about the Google settlement, which was reached between that company and the Authors Guild (sic) and […]

  3. The Department of Justice comes down against Google settlement « I Love My Kindle Says:

    […] The Department of Justice comes down against Google settlement By bufocalvin The Department of Justice (DoJ) has filed a statement in the Google settlement case.  […]

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