back to article Why are scribes crying just 'cos Google copied their books? asks judge

A US Appeals Court has suggested that authors suing Google should be pleased that the advertising giant is scanning millions of books and putting them online for all. A lawsuit to halt the tome digitising effort, brought by the Authors Guild and groups representing photographers and graphic artists, is up before the lofty …

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  1. stephajn
    Thumb Down

    Seems counterproductive...

    ....to be suing someone who is trying to draw attention to your works and could be bringing you additional revenue. I could understand if the entire book was being put online and thus sales were hurting on books that an author may complain a bit. But to sue that much money from someone who is taking PART of your book and putting it online so as to help people find you? Uhhhhh did I miss something here?

    1. This post has been deleted by its author

    2. Anonymous Coward
      Anonymous Coward

      Re: Seems counterproductive...

      .. but surely the point is that it's the authors/rights-holders decision to make, not Google's (even if it is counterproductive)

      If it were some big cultural, academic, or state institution, e.g. the British Library or similar, then maybe all the "benefit to wider society/culture" arguments might hold; but Google is not in that business at all. I believe it mostly makes money by selling advertising space.

      1. Marcelo Rodrigues
        Boffin

        Re: Seems counterproductive...

        robots.txt is your friend.

        Last time I checked, Google's crawler honored this little bugger.

        Don't want your book indexed? Fine, restrict it with robots.txt.

        1. Oninoshiko
          Facepalm

          Re: Seems counterproductive...

          Last time I checked, Google's crawler honored this little bugger. Don't want your book indexed? Fine, restrict it with robots.txt.

          Where do I put that in the printed publication sold at a bookseller?

          Please tell me this was a joke, this is about books, not web sites (the clue on this was the fact we where using the word "book" not the phrase "web page").

          1. Marcelo Rodrigues
            Facepalm

            Re: Seems counterproductive...

            Well, they are complaining about Google. Is there another presence of Google than the Internet one?

            Where would Google show a book (whole or part of) that wouldn't be the web?

            Well, there's Android. But last time i checked it wasn't showing books others than returned by a Google search...

        2. sabba
          WTF?

          Re: Seems counterproductive...

          Doh!! you seem to be assuming that the book is already published on a website. Did you miss the bit where it said that Google was digitising print books. Not sure where you'd stick a robots.txt file in a print book.

          1. Marcelo Rodrigues

            Re: Seems counterproductive...

            I remember this. But, at the time, I got the idea they were doing it WITH the consent of the authors - or with books on public domain. Is it not the case?

        3. Tom 13

          Re: robots.txt is your friend.

          Scanners, that is those things that make whiring noises as the bright light goes across the page on the glass, don't give a rat's tail end about any 'robot.txt' file.

      2. Grogan

        Re: Seems counterproductive...

        No, authors and publishers don't get to decide what is fair use. That is for society to judge.

        That's exactly the problem these days and what is going to be changed and clarified. We're sick and tired of that control freak attitude. It's not even to their benefit... it's cutting off their noses to spite their faces.

        1. Oninoshiko

          Re: Seems counterproductive...

          USC 17 Ch. 1 Sec 107 (my comments are in italics):

          Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism no, comment no, news reporting no, teaching (including multiple copies for classroom use) no, scholarship no, or research no, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

          (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; Google is a for-profit entity using this to drive advertisement sales. No commentary is being made on the work itself, nor is the work being used to make a point of some kind. Fail on that point

          (2) the nature of the copyrighted work; I assume most of these are non-fiction works, which I would expect to work in Google's favor on this point

          (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and Are we talking about a full duplication of the work, or just a section? While google only SHOWs a small section, they did have to make a full unauthorized copy for searching purposes. Fail on this point

          (4) the effect of the use upon the potential market for or value of the copyrighted work. This is subjective, but If being able to read a section of a technical work online means I dont have to get the book itself, the argument could be made that it damages the market for the work. Others would say it grows the market by increasing exposure. Neither statement can be proven before the damage is done, but if it really does grow the market then Google should just be able to explain this to the authors and they'll jump on board (doing so would avoid wasting the courts time)!

          The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

          ----

          It is interesting that Google wants hundrads of little suits, rather then keeping it all together in one class action suit. One would almost think that Google thinks that by making the authors each come after them individually they can increase the costs to the individual author to the point that it's cost-prohibitive to come after them.

          That doesn't sound evil at all.

          Whatever the outcome of the fair use defense, I think it is obvious that is is appropriate for this to be a class action suit.

          1. Ian Michael Gumby Silver badge
            Boffin

            Re: Seems counterproductive...

            I think that the argument of 'fair use' doesn't pass the sniff test.

            As to Google wanting to fight many smaller suits is that without class action status, many of the authors couldn't afford to fight Google. Google has that deep of a pocket that even if found guilty of copyright infringement in all cases.. it would put a dent only in 1 qtr's earnings.

            Google is on the hook potentially for 3Billion USD. If they can win some of the cases, it would come out ahead in terms of dollars and cents.

            1. promytius
              Facepalm

              Re: Seems counterproductive...

              not some, not many, but all authors, every single one could not, by themselves face down Google. No. If Google wins everyone looses. If Google loses, then still - how does anyone win?

            2. Tom 13

              Re: many smaller suits

              Hell, at that level it's likely many of the suits couldn't even afford the court filing fees let alone the cost of lawyers prior to that.

          2. Sam Liddicott

            Re: Seems counterproductive...

            what part of "reSEARCH" is not search? Just because the search part is automated doesn't make it not research, in fact it opens up new avenues of research on texts.

      3. Mark Pawelek
        Thumb Up

        Re: Seems counterproductive...

        Go Google :-)

      4. JP19

        Re: Seems counterproductive...

        "but surely the point is that it's the authors/rights-holders decision to make"

        Authors/holders only have rights the rest of us choose to give them.

        Those rights are given for the benefit of the rest of us not them.

        Consideration of how the application and extent of those rights might provide the maximum benefit to the rest of us are reasonable and welcome.

    3. sabba
      FAIL

      Re: Seems counterproductive...

      I think the biggest problem is with the definition of part. Assuming I scan in your book and then remove the title page, the frontispiece, and perhaps the author's acknowledgements both I post the remainder on my web-site. The main content of the book is still complete but I have only published part of the book. So am I covered by the law? Perhaps not in the spirit of it.

      1. wowfood
        Facepalm

        Re: Seems counterproductive...

        There are so many books I bought / borrowed from the library at uni which I never would have known about had google not indexed them.

        On the one hand I can understand the whole "Wah they copied us" mentality, as far as these entities are concerned any digital media they don't make profit from must be hurting profits, rather than driving people to buy something the never normally would.

        Honestly if I were the author / publisher of the book, rather than being greedy and trying to bag $750 per book, I'd instead try to coerce google into sorting out a deal whereby their book is put into a google book store, and is purchasable, with a prominent "Buy digital edition" link somewhere on the page. And I say this simply because a lot of the books I'd have liked to buy are no longer in print, which is another reason why I get annoyed when these people complain.

        "Wah they're cutting into our profits"

        "You don't sell this book anymore..."

        "... so? You're still sharing it in a way that doesn't make us money!"

        "You aren't making money anyway!"

        "... could if we wanted to"

        *facepalm*

        1. Rich 11 Silver badge

          Re: Seems counterproductive...

          "There are so many books I bought / borrowed from the library at uni which I never would have known about had google not indexed them."

          Or you could just have asked your subject librarian...

      2. Tom 13

        Re: Seems counterproductive...

        In the specific instance you have provided you would fail on several counts, not the least of which is there is no criticism or commentary on the part copied. Even were that present, because so much of the book continues intact, you would still be guilty of infringement.

        In order to get to fair use, you need to be in the sentences or paragraphs area, not pages and pages. This is well established in case law.

    4. promytius

      Re: Seems counterproductive...

      You know, there are only two human problems; we rid ourselves of these and we will survive:

      the concept of a perceived value difference between things - let's call that MONEY

      - and OWNERSHIP.

      Rid the planet of those irrational, psychotic notions and your biggest problem will be what to do with all that inner happiness.

    5. Tom 13

      Re: Seems counterproductive...

      Except they aren't simply serving snippets they are scanning and indexing the whole book, and the fact that they actively have to engage in scanning, then using ocr to convert the book to the machine readable files moves them well outside 'fair use' coverage. In fact, it pretty much moves them into Napster territory. Well, actually beyond Napster territory because Napster at least had the fig leaf that they weren't the one uploading the unauthorized music, while Google are actively doing it.

      Once you understand the legal implications of that, you understand why Google's lawyers want the class action status resolved first. Resolve the copyright issue first and it's a slam dunk for the authors. Once that's established, class action makes perfect sense. If on the other hand you can split out all the suits into a mouse versus Goliath, the mouse is probably gonna lose, repeatedly.

  2. Steve Todd
    Stop

    Do these guys not understand copyright?

    The state grants authors the right to decide who has the right to copy their works. They can licence that right to publishers and make money. Google is copying their works without permission. They MAY get more exposure on the web, but where's the extra income comming from and who gave Google the license?

    1. El Presidente
      Unhappy

      Re: Do these guys not understand copyright?

      No, they don't.

      Or, yes they do but, hey, they have beeeelions of dollars, they don't need to care either way.

      They can and do just do as they wish.

    2. P. Lee

      Re: Do these guys not understand copyright?

      > The state grants authors the right to decide who has the right to copy their works.

      Unless of course, it decides to revoke that right. Copyright is an artificial assignment of control. It may be a good one, but if you ask for state intervention to allow you to make money, the state is in control.

      1. Robert Helpmann?? Silver badge
        Childcatcher

        Re: Do these guys not understand copyright?

        And it is not up to the judges to decide as to whether to revoke the right, at least not until it hits the SCoTUS. So the authors have the rights, Google is doing as it will and making money with it on the way, hoping that it will all pan out in the end. Unlike YouTube (seems like a good analogy with similar legal issues surrounding it), they are going out and grabbing content themselves, not directly paying content owners, and not providing an easy method for those owners to have their content taken down if they want.

        They have already established that they understand these issues and are not acting in the same manner in the two instances. This might make for interesting play in court.

        1. Tom 13

          Re: at least not until it hits the SCoTUS.

          Not even Scotus has the power to revoke the property right involved in copyright. It's power is limited to determining whether the legal rules have been followed, including the legal rules of what is constitutional.

          Invalidating the protection ought to require an act of Congress with approval from Potus.

          Where Scotus has issued a warning about copyrights is that the Constitution clearly states copyrights and patents should be for a "limited time." Recent Congressional actions have technically kept limits on the time, but that as we were rapidly approaching the point at which everyone who read/saw/heard such a work when it was first copyrighted is long dead, we might be exceeding the practical meaning of "limited time."

  3. Kevin 6

    But Circuit Judge Pierre Leval said he thought the authors would be overjoyed to have their books digitised, particularly when the works were obscure and Google led readers to where to buy them, Reuters reported.

    couldn't you say the same thing about movies, video games, and other content too?

    By his logic the movie, and music industry should be happy places like TPB bother advertising most of the crap they churn out.

    1. Syldra

      @Kevin 6

      "By his logic the movie, and music industry should be happy places like TPB bother advertising most of the crap they churn out."

      The main differences are :

      1- I'm pretty sure TPB doesn't link to where you can actually buy the stuff and

      2- TPB makes available the work in full

      I'm no writer myself and knows none to speak of, but I believe they aren't against exerpts of their books on Amazon/B&N and the likes... Google makes their work searchable so I would think it brings more customers than less...

      1. foxyshadis

        @Syldra

        Amazon has to get approval to post even the first couple of pages. I've passed up buying multiple books because there was no preview, since I've been burned too many times by terrible authors that sounded great in the short summary.

        Publishers and authors need to get their asses in gear before they get left completely in the dust, especially when it comes to out of print books that should be getting new life thanks to the digital long tail. Book piracy is rampant and incredibly easy online, and has been for two decades, and if they don't heed the wakeup call soon they're going to end up where the music and movie industries were a few short years ago. You can't stop piracy, but you can make it more convenient to purchase. The small and shrinking literate population is only going to move to where they are more appreciated.

        1. promytius
          Thumb Up

          Re: @Syldra

          "small and shrinking literate population" that is the looming tragedy, and it has little to do with Google. You made an excellent point.

      2. Anonymous Coward
        Anonymous Coward

        Re: @Kevin 6

        "Google makes their work searchable so I would think it brings more customers than less..."

        I'd say not, in my experience as a reader. I've never bought a book that Google threw up as a result of a search. I *have* read a bit I was interested in and moved on a few times.

        Bottom line is that Google is making the real money out of this, which is why they did it. It's standard working practice for big Internet companies - get someone else to make the content for free and then sell it.

      3. Tom 13

        Re: 2- TPB makes available the work in full

        So are Google, only you'll have to work at it a bit. Different search terms in subsequent searches, but you can pull the whole thing out given enough time. Or maybe an automated program.

    2. promytius
      Thumb Up

      Absolutely accurate - that judge is a twit, and it is a VERY SCARY thing to hear judges expressing the ability to read the minds of others!

      I'm shocked that isn't the focus of this - that judge needs to institutionalized; he's psychotic - he thinks he can read minds! OMG!

  4. volsano

    Socialists!

    Hmm, the "enormous value" for culture trumps the rights of the individual?

    Thought I'd never live to hear that as a mainstream American view.

    Though, replace "culture" with "corporations" and I'd be less surprised.

    1. promytius

      Re: Socialists!

      As a resident, I can tell you "democracy" cannot be found here anymore; the list of lost rights grows almost daily; we even have the hubris to call the first legislation to take away our rights to privacy a "Patriot's" act - OMG - we now force our population to strip to underwear before flying; patted down in a search to talk to our representatives; we murder our own citizens without a trial by remote drones and don't give a shit if we take out a few "soft targets ( read "children") we tax the poor, hold down the underclass, redistribute the wealth so that the super rich stay that way - 2008, anyone? - and we have something referred to as a "Congress" who can only pass pay raises for themselves, bills to make their backers and themselves richer, and acts to further limit our freedoms. Don't come here thinking you'll find a democracy, and bring plenty of cash you are willing to leave with us, and a lot of paperwork to prove who you are, and I don't care who you are, take off your shoes and stand here! Insanity rules your lost colony; be glad we left.

    2. Tom 13

      Re: Socialists!

      That's what I expect statists such as yourself to say. Socialism in the US has advance precisely because we've allowed too many socialist twits to impose their views on society from the bench.

    3. Anonymous Coward
      Anonymous Coward

      Re: Socialists!

      "Hmm, the "enormous value" for culture trumps the rights of the individual?"

      Sometimes, yes. I don't think this is one of them, though.

  5. Hollerith 1

    Salaries

    I think Appeal Court judges should be overjoyed to be able to add to the great store of universal justice and to be able preserve law and justice for the future simply by having the honour of sitting on the Bench. Why should they expect salaries when the fame and respect of the centuries to come, not to mention the added value for today's society, is payment enogh?

  6. Justicesays
    Big Brother

    Google is more interested

    In adding to the body of case law that makes people unable to take class action lawsuits against companies.

    This is to go along with the "You cant take out a class-action lawsuit" and "You agree to arbitration with the independent Googlearbs corporation, which can only happen in a small office in remotest Alaska on the first Thursday after a full blue moon , before trying to sue us." which have been added to every contract ever recently. Pretty sure in the UK those terms would be entirely unenforceable.

    Its then just easier to swamp the little guys with paperwork and legal stuff, so they can no longer afford to hire a lawyer, and if one does take it on a no-win-no-fee basis they will only be able to handle a small subset of cases. Exactly the situation a class action was intended to avoid, except these days the only people who win in class actions are the lawyers, who pay themselves huge wedges of cash while passing those who "win" a small itunes voucher or whatever.

    Any right thinking Judge would not rule against a class action, as these are designed to minimize the load on the courts from cases such as these.

    1. Intractable Potsherd Silver badge

      Re: Google is more interested

      Class-action, like plea-bargaining, is an administrative tool to make things run more easily, but it stinks to high heaven.

  7. Jes.e

    In Alexandria I seem to remember..

    "One story holds that the Library was seeded with Aristotle's own private collection, through one of his students, Demetrius Phalereus. Another story concerns how its collection grew so large: By decree of Ptolemy III of Egypt, all visitors to the city were required to surrender all books and scrolls in their possession; these writings were then swiftly copied by official scribes. The originals were put into the Library, and the copies were delivered to the previous owners. While encroaching on the rights of the traveler or merchant, the process also helped to create a reservoir of books in the relatively new city."

    This is from http://www.thelivingmoon.com/43ancients/02files/Library_Alexandria.html

    Google is doing a service.

    Cory Doctorow, a SF writer here in the States claims his problem as an author is not his books being stolen, but getting them in front of peoples eyes..

    Just download any of his free ebooks and read his preface at the front (which includes copyright information):

    http://craphound.com/

    I especially recommend "Little Brother".

    The really interesting thing about Google is that I found in a National Geographic TV show on Google (available on YouTube) is that the founders had the idea of digitizing all the worlds information and making it available to anyone.

    They figured it will take them 300 years..

    That's thinking big!

    1. Oninoshiko

      Re: In Alexandria I seem to remember..

      How exactly did that turn out again?

      Oh right the library was a central depository for all the world's information, meaning noone felt the need to independently keep track of it, and when it burned it set humanity back a century.

      Remind me to thank the Egyptians for that one.

      If our favorite caped ballon-riding blogger wants to give away his original works, that's great for him, but that is and should be HIS CHOICE. He has the copyright (which is to say, the right to make copies). Neither you nor google should be able to make copies without his permission. That he grants it is irrelevant to the fact that granting is is his sole right.

      1. Mike VandeVelde
        Mushroom

        Re: In Alexandria I seem to remember..

        "How exactly did that turn out again?

        Oh right the library was a central depository for all the world's information, meaning noone felt the need to independently keep track of it, and when it burned it set humanity back a century."

        Sort of like Napster?

    2. promytius
      FAIL

      Re: In Alexandria I seem to remember..

      In Alexandria I seem to remember.. it burnt to the ground and every one of those stolen volumes were lost!

    3. Tom 13

      Re: Cory Doctorow is full of shit

      There once was a relatively unknown sf writer who couldn't get a book published in the US because he mostly wrote short stories and was a relatively new writer. He did manage to get some stuff published in the UK where short story collections weren't so out of vogue. But he was willing to go to SF conventions. And there was this smallish but somewhat old convention held near Baltimore, MD every year. And it had some folks at it who thought he was a good author. So a few of them formed a new company. I believe they contacted one of the British publishers and contracted the right to use their proofs to publish a small press run of his works to sell at a convention the author was attending. (They might have actually had to set and proof this one, but I think they got the proofs.) Shortly thereafter the author had a contract with a major US publisher and is now reasonably well known for his works. His name is Allen Steele and that first book was Rude Astronauts published by Rare Earth Books. I know because I knew all the people involve with the creation of Rare Earth Books and had the good fortune to meet Mr. Steele at that convention and have him sign a book from one of those small print runs.

      Bottom line, if you write good stuff in SF and work on selling it, you will make it. Maybe not big, but certainly enough to support you in middle class fashion.

  8. Isn't it obvious?
    WTF?

    My Preciousssss...

    Holy crap the copyright maximalist shills are out in force today! To paraphrase, do you guys not understand US copyright law?

    Newsflash: In the US (where this legal action is, note) copyright is explicitly (if perhaps, all too often merely nominally) a quid pro quo arrangement for the betterment of society, not a "human right" like it is in Europe. And fair use explicitly trumps copyright on that basis. Thus it is perfectly germane to be arguing about the bounds of author control versus the right of society to discover -> study -> learn from -> build upon any works in question, as that is the exact balance copyright law intends to strike.

    1. sabba
      Holmes

      Re: My Preciousssss...

      Thank fuck you Yanks only **think** you rule the world then :-)

  9. btrower

    S/B class action, but authors should lose

    There is no reasonable theory whereby Google cannot digitize those books like they do. Rest assured that people objecting to this are either deluded authors who do not understand they are patsies or big rent seekers holding as much of our culture hostage as they can get their mitts on.

    There is no question that digitizing those works is to the benefit of the majority of the authors involved. A very tiny number might be adversely affected in a material way. I do not think that the (alleged) rights of this vanishingly small handful of people trump the rights of the rest of society. Google's actions in this regard have made the world a better place.

    The rent-seekers are mostly objecting to the fact that they can't act as the gatekeeper and charge rent for something that Google is doing for free. I do not think that we should be paying someone for the 'service' of blocking access to our cultural artifacts.

    If the rent-seekers claiming to be representing the poor hard done by authors of the world continue with this nonsense, I think that the rest of us who spent their entire lives contributing to the wealth of the world should insist that we also get royalties on our work. I am pretty sure that stuff written by me is in a lot more places than the average author that they are claiming to represent here. The discussion itself is taking place in a cyberspace built by people like me. The roads, buildings, bridges, power grids, factories, parks, etc, etc were built by somebody. Why don't the people who put their blood, sweat and tears into the rest of the world's wealth get a piece of the action?

    The fairest most reasonable course with respect to copyrights is to abolish them. They have no legitimate purpose in a time when, save artificial barriers put up by rent-seekers who contribute less than nothing, the entirety of the cultural artifacts of humanity is a mouse click away.

    1. Stevie Silver badge

      Re: S/B class action, but authors should lose

      I read your post three times but couldn't get any sense out of it other than free (at other people's expense)=good.

      Because you seem to have trouble grasping the point: These authors are probably quite cognizant of how to market their works - since said works are already in libraries we can assume a certain level of expertise in the publishing world - and I'm almost certain they have a very good idea of how much good will accrue from this Googlescrape.

      I imagine most of these works are the kind of reference where if one grabs a Google precis of, say, a famous quote, summary of a philosophy or fact of the physical universe, one won't need to buy the book it was scraped from.

      This isn't hard to intuit from the subtext of the article. Why is it that supposedly clever people of IT have such a problem working outside their own limited set of interests? Maybe I'll Google the answer from someone's textbook on psychology and save myself the cost of the book.

      You should know that "cyberspace" is now considered a clabby term to be avoided at all costs by the clixby set. Coincidentally, it's a term invented by an author who probably has a lot to say on the subject of Googlescraping.

      And where on Earth did you get the ridiculous idea that roads, bridges, power grids etc materialized for free so everyone could use them? Do you not understand the concept of taxation?

      1. btrower

        Re: S/B class action, but authors should lose

        @Stevie

        Tell me if you disagree with Google when they say:

        "Copyright law is supposed to ensure that authors and publishers have an incentive to create new work, not stop people from finding out that the work exists."

        The crux of their argument is that they are only supplying what is necessary to track down and verify a 'snippet' of content; that what they are doing is well within the envelope of fair use.

        Re: I read your post three times but couldn't get any sense out of it other than free (at other people's expense)=good.

        Agreed. You did not make sense of it. You are even wrong about the part you thought you got right. The fact that you do not understand something, though, is not a proof that it cannot be understood.

        Re: Because you seem to have trouble grasping the point: These authors are probably quite cognizant of how to market their works - since said works are already in libraries we can assume a certain level of expertise in the publishing world - and I'm almost certain they have a very good idea of how much good will accrue from this Googlescrape.

        Maybe the point eluded my grasp because it is not a valid point. A bald assertion does not a fact or an argument make. I am familiar enough with at least a few authors of published books. As a rule, their knowledge of publishing is not great. Do most authors know much about something like Google books? It is doubtful. I won't presume to speak for Google. They do an excellent job themselves:

        http://books.google.com/intl/en/googlebooks/perspectives/

        "... some in the publishing community question whether any third party should be able to copy and index copyrighted works so that users can search through them, even if all a user sees is the bibliographic information and a few snippets of text, and even if the result is to make those books widely discoverable online..."

        I think a fortune 100 company that is in the business of knowing stuff knows a little about this after digitizing more than ten million books.

        Re: I imagine most of these works are the kind of reference where if one grabs a Google precis of, say, a famous quote, summary of a philosophy or fact of the physical universe, one won't need to buy the book it was scraped from.

        You imagine correctly, you just don't understand what it means. There is a simple word for this that children learn on the playground: fair. The word appears in copyright law as 'fair use'. Google gives billions of people easy access to millions of books. That is hardly a problem and it is not illegitimate. You are simply wrong if you think it is. You can't copyright facts or ideas. You copyright an expression. Except for large chunks of that exact expression, it is fair use; especially in the current context. The example you cite shows a complete lack of understanding of copyright law. Even advocates on your side will tell you that.

        Copyright law is a social contract. Fair use is a price you pay for being granted copyright. That price is dirt cheap. The deal is overwhelmingly to the advantage of publishers. You don't want to allow fair use? Fine. By all means, let's cancel the contract. I'm all for it.

        Google's case for 'fair use' is excellent and in keeping with both the spirit and the letter of the law.

        Re: This isn't hard to intuit from the subtext of the article.

        Agreed. It is not hard to intuit. The only one mistaken about this is you. You think you have caught someone breaking the rules. You have not. What you have caught is yourself misunderstanding the rules.

        Re:Why is it that supposedly clever people of IT have such a problem working outside their own limited set of interests?

        This is ironic since your previous sentence clearly shows that you have no idea what you are talking about. This unmannerly and incorrect generalization about 'people of IT' is typical of bigotry at odds with common sense. Substitute 'color' for IT and put a period after 'working'. Do you see any problem with that pattern?

        Re: Maybe I'll Google the answer from someone's textbook on psychology and save myself the cost of the book.

        You do that. While you're there, take a look at the other things you mention here. Maybe if you had more respect for the contents of the books rather than the gatekeepers attempting to block access to them we might not be having this conversation.

        Re: You should know that "cyberspace" is now considered a clabby term to be avoided at all costs by the clixby set.

        Huzzah! Congratulations on your linguistic currency! As of this moment, the single Google return for "clabby term" and "cyberspace" is your comment itself. I certainly cannot compete with you when it comes to the use of the latest inflammatory lingo.

        https://www.google.ca/search?q=%22clabby+term%22+cyberspace

        How delightful. Your attack on a tangential aspect of the form of the argument seems a tacit admission that you do not feel confident promoting the substance of your own argument. It is unfortunate that the term 'cyberspace' is not to your liking. Perhaps you can consult the inventors of 'clabby' and 'clixby' for a term that you feel is a little more current the next time they meet in your living room. I am afraid I will have to decline your implicit invitation to join the 'clixby set', so I will not be there.

        Re: Coincidentally, it's a term invented by an author who probably has a lot to say on the subject of Googlescraping.

        What you are saying is a little muddled. Is the aforementioned author a member of the clixby set?

        Re: And where on Earth did you get the ridiculous idea that roads, bridges, power grids etc materialized for free so everyone could use them?

        Where did you? What is that? A 'non-sequitor'? A 'straw man'? Who said anything about materialization or self assembly or people working for free? Hint: Not me. Might as well toss leprechauns in there for all the sense it makes. You are the one with the magical thinking. You believe that certain 'special' people who are no longer working on a particular thing or even who did not ever work on it should be paid over and over again, effectively forever, for work already brought to life and essentially bought and paid for. Worse, in the current argument, you are arguing on the side that says that people are not allowed to even know about the work unless advertised by a member of the publishing cartels. They are not just trying to block access to the knowledge itself, they are trying to block access to the fact that it even exists.

        Most of us get paid for working. When we stop working we stop getting paid. I am not saying that creative people should not be paid. Having worked with creative people and being something of one myself, I understand that access to the muse is spotty and if we want the magic that comes from otherwise idle incubation we have to somehow pay for the incubation. However, creating a monopoly on the world's wealth that necessarily depends upon effectively destroying that wealth can't be our best solution. It is reasonable that an author make a living. It is reasonable that an excellent author makes a good living. It is *NOT* reasonable that an author like J.K. Rowling makes enough money to become the richest person in her country and then continues to press for advantage over ordinary people using the clearly broken copyright laws.

        Re: Do you not understand the concept of taxation?

        I do. You clearly do not. Once you pay the taxes for the water delivered to your residence, that transaction is done. Snow clearance, services like sewage and garbage removal, fixing roads, taking care of local parks and keeping the city safe and peaceful require ongoing work. The taxes are to pay for that, not to pay for past work already done. A finished copy righted digitized work no longer requires ongoing maintenance. The only reason money changes hands when someone reads an electronic copy of a book is because rent seekers, by virtue of not having to work for a living, spend their time at the seat of government lobbying for perverse laws that reward them for interfering with people trying to read.

        The only marginal cost that goes into creating a digitized work is the digitization itself. That is a cost minimal enough that Google is doing it, en passant, while indexing it for search.

        1. Tom 13

          Re: S/B class action, but authors should lose

          An even longer, more rambling, more pointless post.

          How very Marxian of you.

        2. Ian Michael Gumby Silver badge
          Boffin

          @btrower... Re: S/B class action, but authors should lose

          I think that its poor form to criticize another poster when you yourself don't grok the basic meaning of the term 'fair use'.

          What Google is doing is theft, plain and simple. Google is not being altruistic in their actions. Actually far from it.

          First, let clarify what is meant by the term 'fair use'.

          I urge you to read the following web sites:

          http://www.copyright.gov/fls/fl102.html

          and

          http://legal-dictionary.thefreedictionary.com/Fair+use+doctrine

          In short you have four parts to the litmus test:

          "

          The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

          The nature of the copyrighted work

          The amount and substantiality of the portion used in relation to the copyrighted work as a whole

          The effect of the use upon the potential market for, or value of, the copyrighted work

          "

          Google is taking large chunks of the work and publishing it online. Note there is no commentary on the part of Google.

          Google makes money from this act even if it's 'free' to you.

          Google not only sells ads, but they also capture information as to who browsed their selection, how long and what they were interested in.

          That is to say, Google knows who you are, what you are interested in, along with other details. The more they know about you, they better they can 'target' ads. The bottom line is that they gain value from your visit, even if they don't show an ad. (The advertisements are a bonus).

          Note that none of this 'value' flows down stream to the author of the work. That is theft. They are using the work of another person to gain value for themselves.

          Note that this isn't for books no longer protected under the copyright laws but what they consider 'orphaned' books. That is to say that these books are no longer in print, yet still protected under the copyright laws.

          Google is ignoring the law, yet again. They should be fined. Not sure if the Judge's comment was taken out of context, or if he was making a comment based on what had been presented in court.

          The one thing that Google has in its favor is that the authors need to show harm which isn't a simple argument.

          1. btrower

            Re: @btrower... S/B class action, but authors should lose

            Re: I think that its poor form to criticize another poster when you yourself don't grok the basic meaning of the term 'fair use'.

            You will get no argument from me on that principle. However, I believe it is you who does not quite entirely 'grok' fair use. You have a belief that is in accord with the Author's Guild's belief about fair use. However, I think both you and they understand a caricatured version of fair use that has been advanced by those who benefit from expanding copyright so they may enrich themselves at our expense. I am with the judge I quote below from a decision on a very similar case brought by the Author's Guild about Google's digitization of books. In that case, the Author's Guild lost and the quote below is from the judgment by the Hon. Harold Baer, Jr., District Judge.

            "Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP [Mass Digitization Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts ..."

            You can find the judgment in whole here:

            https://www.eff.org/sites/default/files/HathiTrust%20decision%20copy%202.pdf

            There was a judiciable controversy in that case as to whether or not Google's digitization of about 10 million works was 'fair use'. Not only was it a bona fide controversy, contrary to what others here seem to believe, the judgment fell *against* the Author's Guild. There is no controversy now. It is by definition 'fair use' by virtue of a very clear precedent. There is, as court documents show, a similar judiciable controversy in the current case for which 'fair use' is similarly being brought as a defense.

            The notion of 'fair use' ultimately goes back to the purpose of copyright in the first place. Copyright is to essentially advance the progress of arts and sciences by providing an incentive to creators by allowing them a set of *limited* rights over their creative works for a *limited* time. The boundaries of those rights are essentially defined by the place where the incentive value conflicts with the primary goal. Nobody in their right mind would argue that digitizing and indexing all the books in the world is not a laudable goal that most certainly advances progress.

            This is net beneficial, without question, to the vast majority of us, authors included. The only ones arguably injured (and even that is not proven) are publishers who would like to control this themselves and a handful of highly paid popular authors. The have no moral right to block access to the rest of us and I am confident that the courts will establish they have no legal right either.

            I think that, although this does not have quite the moral gravitas of the first case above, Google will prevail here too.

            Google is a little bit scary, I admit it. I am skeptical that it is following its "'don't be evil" motto these days. However, I have no doubt that this digitization project is net good for all of us, including the majority of Author's whose interests the Author's Guild claims to represent. It is the right thing to do. It will make the world a better place. It is either within the rules of 'fair use' or so close that it presents a controversy worthy of review by the courts. The courts are reviewing it and we shall see how it goes. Thus far, it looks pretty good for Google.

  10. Anonymous Coward
    Anonymous Coward

    So, if someone comes along and copies all the Star War Movies

    Complete with links to places you can buy them, rather than watch them for free online does this mean that Disney too will be overjoyed? We can only hope this judge sets a precedent such that film makers, TV companies and computer game makers can all share the joy that Google so kindly grants the authors.

    1. Tom 35 Silver badge
      Facepalm

      Re: So, if someone comes along and copies all the Star War Movies

      You do know that you can go to a variety of Places online and find samples of Star wars movies, I think they call them trailers. Or IMDB where there is all kinds of searchable info about Star Wars. A lot of this info was provided by the people who created the movies. I bet you can even find out who shot first!

      You did read the story right? The part about Google only posting snippets online?

      1. John Brown (no body) Silver badge
        Thumb Down

        Re: So, if someone comes along and copies all the Star War Movies

        The difference is that places hosting trailers for movies are hosting a short, specially created clip provided by the copyright owner.

        Google are hosting the entire work in a searchable format and will create and provide a "trailer" on demand from any part of the entire work without permission. They made a whole copy. I'm not so sure Hollywood or the music industry would be quite so enamoured to have this happen to their products.

        I wonder how hard it would be to automate a Google search of a specific book and "find" the whole book by scraping all of Googles "small, fair use, selections"? You certainly could not download all of a movies trailers and re-create the whole movie. (Although in recent years, watching a couple of different trailers for a movie generally does give you the main gist of the story and pretty much all of the best bits anyway.)

  11. sgtrock
    FAIL

    As a publisher, Eric Flint has already addressed this issue...

    ...over a decade ago. Baen Publishing has been selling DRM free books for almost 20 years and making a mint at it. In 2000, they went even further and introduced the Baen Free Library to drum up interest in new authors. As Eric Flint said in part in the Introduction to the BFL:

    http://www.baen.com/library/intro.asp

    "There was a school of thought, which seemed to be picking up steam, that the way to handle the problem was with handcuffs and brass knucks. Enforcement! Regulation! New regulations! Tighter regulations! All out for the campaign against piracy! No quarter! Build more prisons! Harsher sentences!

    Alles in ordnung!

    I, ah, disagreed. Rather vociferously and belligerently, in fact. And I can be a vociferous and belligerent fellow. My own opinion, summarized briefly, is as follows:

    1. Online piracy — while it is definitely illegal and immoral — is, as a practical problem, nothing more than (at most) a nuisance. We're talking brats stealing chewing gum, here, not the Barbary Pirates.

    2. Losses any author suffers from piracy are almost certainly offset by the additional publicity which, in practice, any kind of free copies of a book usually engender. Whatever the moral difference, which certainly exists, the practical effect of online piracy is no different from that of any existing method by which readers may obtain books for free or at reduced cost: public libraries, friends borrowing and loaning each other books, used book stores, promotional copies, etc."

    In Prime Palaver#6, he showed that both he and David Drake both saw INCREASED sales after putting their works up in the BFL. See

    http://www.baen.com/library/prime_palaver6.asp

    for the gory details.

    The Appeals Court judges are right. The more publicity that authors get, the better it is for the authors. This entire suit has been wrong-headed from the beginning.

    1. Stevie Silver badge

      Re: As a publisher, Eric Flint has already addressed this issue...

      And yet when REM tried an experiment in voluntary pricing they got well and truly reamed - by their fans yet.

      Perhaps the issue you are alluding to (the Baen Free Library effect) is not applicable as widely as you (and the Baen stable of authors) would like? (Disclosure: I am a fan of many of those authors and have purchased many of their works, often in hardcover at premium prices partly as a gesture of support).

      In any event, the significant point is that the BFL is an OPT-IN affair, and the Project Googlescrape is a "Let's not tell anyone and see how much we can get away with before we are caught" one.

      The Fair Use arguments are likely to be lively, since Google isn't using the excerpts themselves (to present an argument or as part of a critical review) but passing them on to others and I'm pretty sure that's a no-no, covered in black letter law. The original Fair Use statutes said I could video a movie but only so I could watch it myself. I couldn't gift it on, as that would be distributing someone else's work.

      I wonder how they will filter this for the UK market (where I understand there are no fair use laws and the Googlescrape is absolutely naughty)?

      1. graeme leggett

        Re: As a publisher, Eric Flint has already addressed this issue...

        From Standford.edu Copyright & Fair USe

        "Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission."

        Google hoping to roll over objectors by splitting them up first then making its attack on the interpretation of the law itself....?

        1. Grey Bird

          Re: As a publisher, Eric Flint has already addressed this issue...

          Yes, I think this is a (rather transparent, to me) move by Google to divide up the copyright holders first, so they can grind them up in court and get to copy the books. What Google is doing seems to fall pretty squarely outside of fair use. They are copying the works without the authors permission for use by others.

      2. Mike VandeVelde
        Go

        Re: As a publisher, Eric Flint has already addressed this issue...

        "And yet when REM tried an experiment in voluntary pricing they got well and truly reamed - by their fans yet."

        Radiohead released their album In Rainbows with voluntary pricing for the digital version. The physical CD that came out afterwards was still a chart topper.

        Nine Inch Nails released their album The Slip under a non-commercial share-alike license, and still sold physical CD copies.

        Beck released his "album" Song Reader exclusively as sheet music, obviously giving up royalties as he explicitly encourages everyone to play the songs themselves.

        Some artists are experimenting, and I think it's fabulous. There's no guarantee that just because you create art it will make you rich. Just because one artist wasn't wildly successful with a particular approach does not mean that another artist couldn't find a way to make it work well. These are heady days, and we are still figuring out how the world will work beyond the inevitable demise of yesterday's culture hoarders. GAME ON! 8D

    2. Anonymous Coward
      Anonymous Coward

      Re: As a publisher, Eric Flint has already addressed this issue...

      The real issue is that Google's motivation here is to create their own toll bridge for information.

      Just look at how Google image search now works. Previously Image search would only display a thumbnail of an image taken from a website, the user would then have to visit the content owner's website to view the original full-size image. A fair arrangement for both parties.

      Google has now changed this arrangement. Google now hotlinks directly to the full size image, so that the user does not need to visit the content creator's website to view the original full-size image.

      Google may say that they will provide a link to where the book can be purchased, however you can bet your life that Google will find a way to make a commssion out of that link. Even if it just invloves Amazon bidding against Barnes & Noble for the linka. Don't forget that Google is an advertising business and that their object is to create pages to display Ads on.

      If past performance is anything to go by, this company will seek to monopolise book search, so that they can get a toll for each book sale.

  12. Stevie Silver badge

    I say chaps...

    Isn't what Google is doing the functional equivalent of gathering one's browsing history and keeping it so they can, for example, "enrich the user experience"?

    After all, if authors should be glad their works have been copied without permission, shouldn't we *all* be glad our browsing histories are being stored by the same benevolent, well-meaning organization?

    "Accept 3rd Party Cookies" on, lads!

    Or are we all feeling a tad two-faced today?

  13. Christoph Silver badge
    Alert

    It is not their choice to make

    Yes, this field is very new. Yes, it might well be to those authors' advantage to have the books scanned. Lots of people think it would be very good for the authors.

    Lots of other people disagree. It is very new. It isn't settled yet.

    The authors might be right, they might be wrong, it might be much more complicated than that.

    But it should be the authors who choose! It is their work. It is their livelihood. It is their creation.

    For many of them that creation is far far more than just a job of work, it is their dreams given shape.

    It is for them to choose by what they personally consider best for what they personally want to happen to their work. It is not for Google to decide by commercial force and lawyers.

    1. Intractable Potsherd Silver badge

      Re: It is not their choice to make

      I do not, and never have, agreed with the !I wrote it so it's mine" argument. If you want to keep control over what you wrote, don't put it out there. Once you have decided to [try to] monetise it, it becomes part of the world of the people who read it. You have lost control. My especial contempt goes to those that try to stop fanfiction etc because "they are *my* characters!" They aren't any longer, and there is no effective moral argument that backs it up.

  14. Don Jefe

    Tough Issue

    This is a thorny issue for sure. Everyone likes to harsh on Google (often for good reason) but in this case it seems they're actually doing something positive. Not only are they indexing information which might otherwise be inaccessible (or at least no one would know where to find it) but they're also providing a currently non existent way for interested parties to purchase the actual book.

    You can't read the whole book but you can verify that the book has pertinent information then go buy it (or request it from your library). I really don't see the difference between this and a library card catalog.

  15. Dr.S

    It is the act of making a book publicly available that is economically relevant to the author. And Google is never making any book available online without first having the author's permission. After these many years it seems this basic point is still poorly understood.

    1. Tom 13

      Re: Google is never making any book available online without first having the author's permission.

      Patently false. If it were true Google's lawyers would present the signed contracts with the authors indicating they've signed over permission and the lawsuit would be summarily dismissed, with prejudice.

      Just because you want that to be true, doesn't mean it is.

  16. Someone Else Silver badge
    WTF?

    It's clear...

    Those two judges are positioning themselves for a Supreme Court nomination, when/if the Republicans ever get control of the White House again

    1. Mike Flugennock
      Mushroom

      Re: It's clear...

      hose two judges are positioning themselves for a Supreme Court nomination, when/if the Republicans ever get control of the White House again...

      Y'ever pay attention to what Obummer's been up to the past five years?

      There is a friggin' Republican in the White House.

  17. /tmp

    fair use

    I don't see how making a complete copy of an entire work and then making money from that copy can be considered fair use. Google may only be making snippets available in search results, but the value of the search comes from that complete copy that they made. Does Google sell ads along side the search results? Do authors/publishers get a cut of the ad revenue? Shouldn't Google have to get permission from the author/publisher for something like this?

  18. Henry Wertz 1 Gold badge

    The issue to me is...

    That the authors being ostensibly represented did NOT sign up for a class action suit. This authors guild claims to represent the authors of every book under copyright. Quite a few authors HAVE in fact said "Hey, that's great!" and yet are represented in this class action suit. I would say, cases against Google may not have to be brought individually, but the individual authors who have a concern with this should form a class.

    1. Sphinx86

      Re: The issue to me is...

      I second this.

      Is is the authors who have the issue or the authors guild?

      Theoretically if authors are getting more eyeballs on their books directly (which for arguments sake = more sales), to the point where the need for a publisher is reduced, doesn't this also reduce the need to a guild to represent these authors with the publishers?

      Potentially Google are on solid legal ground with the 'this shouldn't be class action lawsuit' because if they are being sued by the Author's guild on behalf of their members, are they being sued by the one entity that is the guild, or truly by all the authors.

      I doubt that if the author's independently launched the class action suit Google would be able to make the same argument.

      In the end I am all for authors being able to control their works, but I also like the idea of Google keeping a copy for posterity's sake.

      Maybe the answer is to allow Google to hold the copy, but allow the author to decide on which snippet to show. You search for something, Google matches it to a book and the approved snippet is provided.

  19. Jay Holmes

    This seems like.....

    ......(to me anyway) that they are more bothered about the fact that Google did this without asking first. The old "It is better to seek forgiveness than permission" argument in full force.

    I dont believe any author would object to the extra advertising of their books, it would do their sales no end of good. But Google should of checked first IMHO.

  20. Brewster's Angle Grinder Silver badge

    A solution

    Google should split the advertising revenue with the authors, after deducting a sum to cover the cost of digitisation.

    EVERYBODY WINS!!

  21. Anonymous Coward
    Anonymous Coward

    I have to stand with the authors on this one. I understand however the 'fault' here lies with the 'research libraries' in question. The problem is that the majority value in research literature can easily lie in a couple of paragraphs which Google has shown to the world.

    I don't think it is any problem if the content is out of copyright, but it isn't. I am wondering however instead of suing Google, the authors can pull out of publishing/distribution deal with these research libraries and go to one that respects their rights and desires and then issuing a DMCA.

    I have searched for copyrighted research papers using Google before and I have to say, some of these 'snippets' they show does remove my need of buying them.

    1. Tom 13

      Re: the authors can pull out of publishing/distribution deal with these research libraries

      Given the economics of the research publishing industry, probably not. I expect their publishers entered into contracts with the libraries to provide them with the books/papers. And I expect that without the money associated with those contracts, the books/papers wouldn't get published.

  22. Joskers
    WTF?

    It's not just the money.

    Google will make money from this - it attracts people to use their service in turn driving advertising revenue. So they profit from the authors' works and don't seem to want to pay them a cut.

    Also, I find it hard to fathom how a commercial entity such as Google can seriously be considered as a cultural heritage site. Useful - yes. Clever - yes. Altruistic - pull the other one.

    But more importantly - how is Google choosing the snippets of the books they show? How are they determining which book results are most relevant? You could easily present a snippet of a book that totally misrepresents the authors opinion. You could easily list a book in a search that was intended to find opinions totally opposed to the author's world view. Who will bother to go buy the whole book to check the wider context when Google clearly shows Prof X is a fascist?

    It's the start of a pernicious journey. Authors start to get misrepresented. That is why curating knowledge is a tricky, academic endeavor. And in this sense Google will do actual harm to some authors and their careers.

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