The Internet Archive has filed a brief against Google hoping to challenge Google's settlement with the "Author's Guild" on the grounds that the Internet Archive has just as much right to protection from infringement claims on out-of-print "orphan" books as Google does.

The Internet Archive was founded in 1996 by Brewster Kahle to scan public domain books and take snapshots of the internet. Kahle is an excitable, charismatic computer scientist who helped pioneer the first search engines and whose stated goal is "universal access to all knowledge."





Kahle and the Internet Archive have requested a pre-motion conference on the case, asking to intervene as a party defendant.

From the Archive's letter to Judge Dennis Chin who is presiding over the Author's Guild settlement:

"The Archive's text archive would greatly benefit from the same limitation of potential copyright liability that the proposed settlement provides Google. Without such a limitation, the Archive would be unable to provide some of these same services due to the uncertain legal issues surrounding orphan books.

"The Archive is one of many Internet content providers that have an interest in opposing the proposed Settlement Agreement because it effectively limits the liability for the identified uses of orphan works of one party alone, Google Inc., and provides for a Books Rights Registry ("BRR"), the interests of which are represented solely by identified rightsholders, to negotiate their exploitation. All other persons, including Internet content providers such as the Archive, would not be able to use orphan works broadly without being exposed to claims to infringement.

"The Archive believes that its interests and those of the public would best be served by its intervening in this case."

Internet Archive Intervention: Google Book Search

Kahle joins "Consumer Watchdog" as an interested third-party to the case, exercising their right to pile on with grievances before the May 5th deadline. "Consumer Watchdog" wrote a letter to the Justice Department earlier this month asking the JD to delay the settlement in order to give rightsholders a chance to realize that they are affected by the terms of the "Author's Guild" Settlement and to find a lawyer before they lose their rights without knowing it.

I raise a fist in "tyrant's envy" at Google for their truly spectacular bit of legal legerdemain.

First, since writers aren't organized, you have to set up a group with whom you can negotiate (the "Author's Guild"). Then you get this puppet group to sue you, and you bribe them into a settlement that is not only favorable to your aims, but actually gives you exclusive access to work that any other sane individual would merely accuse you of stealing and demand that you stop -- in addition to seeking punitive damages.

"Entrepreneurs are simply those who understand that there is little difference between obstacle and opportunity and are able to turn both to their advantage." -- Machiavelli

Kahle and the Internet Archive have been competing against Google for years, receiving a million dollars in funding from the Sloan foundation in 2006 to carry on its open-source efforts in an attempt to create a free platform that would render Google's profit-based model irrelevant.

"Google is so good at the media being their PR machine, that you would not know there was an alternative out there," Kahle said. "We have brand name institutions going open and foundations like the Sloan are funding (us). It shows that the Open Content Alliance is viable, that there is support for public interest. We don't have to privatize the library system."

In 2007, Kahle gave a TED talk at his alma mater MIT on the subject of "a digital library, free to the world" in which he details his experiments scanning and distributing all human information.



When it comes to displaying his scans, however, Kahle is Amazon's man all the way: he's a big proponent of the Kindle and he made his money in the first place by writing search software for Amazon.

Kahle's point is not that Google is doing anything unethical or potentially damaging to the current publishing world, only that the Archive ought to be able to do the same thing: namely, scan out-of-print books and give them away without legal liability.

Most small publishers only received letters from Google last week asking them to contact their out-of-print authors and let them know that soon their rights will revert to Google unless they "opt out" immediately. This gives small publishers two weeks to track down their writers, many of whom spend at least half the year in an alcoholic coma.

They will not succeed at this. Many writers will not know what is happening until it is too late.

I want to know what deal the Internet Archive will offer to rightsholders in order to compete with Google. Kahle wants everything to be free, does this mean that he will strip away even Google's meager profit-sharing deal to authors if he can?

Why can't we turn this into a two-year-long U.S. rights auction where anybody can try to outbid Google for these copyrighted works?

I think Kahle is "a good man," but his plan is essentially the same thing as solving the world's poverty problem by printing more money and then giving it away. For a few hours, everybody will be able to run out and buy food. Everything will be free!

But then the world's economy will collapse completely.

Who would write fiction without getting paid for it? Who would publicize fiction or edit it for free? Will all fiction soon only be slash fiction, fan fiction, and scripts for movies? Will this settlement mean that as soon as a book falls out of print, Google can scan it, and then they own it forever 'till the writer dies?

Too many questions. Too many uninformed stakeholders. As dishwashers everywhere like to say: "too many cooks, not enough pot."

Posted by miracle on Sat, 18 Apr 2009 18:31:24 -0400 -- permanent link