Microsoft Behind the Strings Against Google
I thought maybe I could have an impact on the shape of ebooks and who owns literature in this century (a funny thing to think about, but we must) if I only studied the issue hard enough, thought about it deeply enough, and tried to stay focused on the key players and their weaknesses. But these days, it's more like watching skyscraper-high retarded mutants crawl from the sea to battle it out in a big city, using the spires of cathedrals as shivs and smashing helicopters in order to discover giant chicken dinners that will replace their health when they are weak.

According to Wired, Microsoft has finally stepped into the ring, and is currently funding the case against Google that is being researched by the New York Law School. The New York Law School intends to file an amicus brief against Google in the impending trial that will decide whether or not Google's wholesale purchase of all of forgotten literature from the "Author's Guild" (books out-of-print but still in copyright) was a legal thing to do, and not just the sort of thing that the power-mad dream up to impress old flames at high school reunions. New York Law School will also file white papers on the topic and create a website that serves as a clearinghouse for input from all frustrated parties.

Until New York Law School gets their website off the ground, the ALA has established a website that is gathering and collating all information on the subject.

The Wired article was an interesting departure point, but I wanted to know more about the person that has decided to lead this fight against Google and where he stands on the issues, professor (and former Microsoft employee) James Grimmelmann.

Jesus Christ, this guy is like, seventeen

Some sleuthing found this article for the Library Journal, where Grimmelmann was candid about his position:

"New York Law School professor James Grimmelmann called the orphan works issue absolutely central. He said books still under copyright but without findable authors or rightsholders [were] "not orphans but zombies? animated into a shambling army under the sole control of Google." He suggested that the settlement created a "concentration of power into the hands of Google and, to a lesser extent, the registry."

"Beyond threats of price-setting, Grimmelman (sic) cited Harvard University librarian Robert Darnton's concerns about a single dominant cultural source of such works. "Databases of information valuable to society hardly need to be kept exclusive to give Google and the registry incentive to create them," he said.

"While Google officials have long-maintained that the settlement would ease the problem of orphan works, Grimmelman (sic) said the settlement should encourage meaningful orphan works for all -- not just a deal for Google. "If this is a reasonable deal, it should be open to all," he said."

So here's the problem: as a result of Google's theft, we now have a new category for books, "orphan books," which are books that are no longer being printed but which somebody still owns. Google took the liberty of scanning all these books, operating under the principle that it is better to apologize than to ask permission. The rightsholders cannot be contacted, and Google has a valid point that it is in the best interest of humanity that these books be accessible and not forgotten.

We are all willing to agree that Google ought to be able to do whatever they want with public domain books, and it is clear that publishers are going to fight for the books from which they are still profiting.

But what's to be done about all these orphans?

1). The current settlement with the "Author's Guild" stipulates that all the rights will be turned over to Google unless authors "opt out" by a certain date (which will probably be subject to adjudication and near-infinite extension). If rightsholders choose to "opt in," they will receive an amount between $30 and $300 and then lose their rights forever. This is a joke. This is a meat law drafted by butchers. However, here's Grimmelmann's view of the subject at a recent talk at Georgetown University:

"By requiring authors to opt-out of the settlement class (to which they are automatically included), Grimmelmann said that Google/authors/publishers have created an "elegant solution," and one that is "about the best we can hope for" for authors and publishers we can't find."

I profoundly disagree. I think every AUTHOR with a book under consideration in this settlement would profoundly disagree. Luckily, they can't be contacted.

2). A better system would be a more legal, less precedent-shattering "opt in" system, whereby Google must sit on all these orphan books until individual rightsholders find them and agree on a specific, individual deal for the rights to their books. What is the rush? Google can sit on these books until copyright runs out, and then they may publish them online like anybody else could do. No one forced Google to violate copyright law, and they should have to deal with their grand, sweeping violation on an individual, case-by-case basis -- not by bribing an organization which had no right to speak on behalf of rightsholders in the first place and then strong-arming them into a perfect deal. If this is "prohibitively expensive," so the fuck what? If I steal fruit from a grocery store, I go to jail. I don't get to have it, SELL it, and profit by it just because I think I am a better salesman and because I know that the fruit will go rotten if no one buys it.

3). What I personally would like to see is a global, two-year-long orphan rights auction, whereby anyone can attempt to outbid Google for the rights of individual books, and then Google has to turn over the rights to the winner, and the money to the rightsholder. If the rightsholder cannot be contacted, the money is kept in an interest-gathering savings account until the copyright runs out, at which point the money will be donated to a fund dedicated to tracking down and contacting other rightsholders of other orphaned books.

I would prefer this system because here is how new publishers fight their way into becoming successful publishers: new publishers find new good books to print, and they find in-copyright, out-of-print old books that they would like to pimp and put back in circulation because these books represent the aesthetic of their publishing philosophy. They try to make these authors who were screwed the first time around famous again, while trying to fight for new authors using new energy, new tools, and new strength. If Google owns all of out-of-print literature, this method of tying old authors to new ones will be impossible, and the only people who will be able to publish at all will be Google (which will grow increasingly more powerful) and current big publishing houses (which will grow increasingly less powerful).


No matter what happens, there is still something creepy and irksome about what Google has done, the speed with which they have done it, and the disorganization and smallness of the people who have been deputized to fight against them.

You know how you get mad when you hear things like a corporation has bought the rights to a particular cut of human DNA?

Well, you get mad about that because that's somebody buying "nature," a thing which feels like it ought to be a universal right (never mind that everything is "nature," really).

But what Google is doing is worse. They are buying "nurture." And once they own it, they don't have to share unless they want to. They could take all of "orphan" human literature, select all, and "delete."

"He who can destroy a thing, controls a thing." -- Muad Dib

Perhaps they will just delete all references to Google. Or maybe just all references to panopticon, empire, and slavery.

Posted by miracle on Tue, 31 Mar 2009 12:43:25 -0400 -- permanent link

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