GBS: A Legislative Solution?

(posted by Peter Hirtle)

Many of the critics of the proposed Google Book Settlement (GBS) have pointed out that it attempts to use the class action mechanism to effect what should be a legislative prerogative. James Grimmelmann’s amicus brief on behalf of the Institute for Information Law and Policy, for example, argues that the settlement “inappropriately attempts to solve a legislative problem through a class action settlement.”  Most recently, Pamela Samuelson has recently written that “The GBS settlement contravenes core rule of law principles of our society. To accomplish such an extraordinarily comprehensive restructuring of the future market for digitized books requires legislative action.”

I can’t speak to the issue of the harm that GBS may do to our legal system; I am an archivist, and my primary interest is in making sure that as much information is possible is publicly available.  If a legislative solution could do this, so much the better.  So the question is what would a legislative solution look like?  When one examines the alternatives, however, I don’t see much hope of agreement on an efficient solution.

Before we look at solutions, it is important to define the source of the problem.  GBS is a product of four fundamental flaws with our current copyright system: automatic copyright protection for every fixed creative work; the presumption that the grant monopoly rights to the copyright owner is total; the provision of unconscionably long copyright terms that have no empirical relationship with the incentive to create (as mandated by the Constitution); and draconian penalties if one should infringe. 

These four components of current copyright law – automatic protection, presumption of monopoly rights, long copyright terms, and draconian penalties – are deadly to any mass digitization project.  Because of them, most published items are still protected by copyright.  Furthermore, books cannot be digitized and made available without permission.  The transaction costs of identifying, locating, and securing permission to digitize works is incredibly high, and for a large percentage, no rights holder will ever be found.  Money spent on searching for these authors is just an additional tax on potential users of these works.  Yet if one risks making those works available without permission, one runs the risk of incurring ruinous damages.

A desirable legislative solution would both respect the interests of rights holders while at the same time limiting the transaction costs incurred by mass digitizers.  Those who have argued for a legislative alternative to GBS have not put forward draft legislation, but there are hints on what they would prefer in their writings.  The proposed solutions cover a wide spectrum of approaches.

At one extreme are the ideas put forward by Marybeth Peters in her testimony before Congress.  Peters notes that “the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress.”  Specifically, she notes that the settlement in effect creates a compulsory license for Google, and that “compulsory licenses in the context of copyright law have traditionally been the domain of Congress.”  (Whether a license that has an opt-out provision is truly “compulsory” is an issue for a later day…)

Critics have long noted that the Copyright Office traditionally has protected the interests of copyright owners over the public.  Perhaps as a consequence, it has traditionally opposed compulsory licenses that diminish an author’s ability to control his or her work.  Peters did not assert that a legislated (as opposed to judicial) compulsory license would be appropriate to address the GBS problem.  At most, it is “an interesting proposition that might merit Congressional consideration” (emphasis added).  Instead, she seems to think that Google should be following the procedures recommended in the proposed legislation on orphan works.  Yet the orphan works solution, which requires a diligent search for a copyright owner, just exacerbates the high transaction costs associated with a mass digitization project.  As Georgia Harper has noted, the proposed bills on orphan works “conceive of orphans as adoptable on a case-by-case basis only, not at scale, with all the in-depth investigation that the analogy to adoption suggests. Such an approach seems to me to be unworkable even case-by-case, and … no legislative proposal will accommodate the scale of operation Google has undertaken.” 

Peters also goes out of her way “to underscore for the Committee that out-of-print works and orphan works are not coextensive.”  That means that if orphan works legislation were to pass, Google could make available the full text of those books whose rights holders cannot be found after a diligent search, but most out-of-print books would still be off-limits until permission had been secured.

In summary, if we can read between the lines of her testimony, Peters’s preferred legislative solution, would bend over backwards to protect the interest of rights holders.  It would do nothing to lower the transaction costs.  Google could, if it wanted, try to convince Congress (and the Copyright Office) that “a solution that is more like a compulsory license may make sense for those engaged in mass scanning,” but the Office’s traditional opposition to compulsory licenses stands.  I don’t see anything in Peters’s testimony that suggests a likely legislative solution that would solve the four problems facing mass digitization.

At the other end of possible legislative solutions is an idea argued by Larry Lessig and Chris Sprigman: adding formalities back into the copyright system.  Technology makes the idea of an affordable international copyright registry conceivable.  It would make it possible to identify, locate, and negotiate with those who are concerned about the rights in their work, and make accessible all the works of those who do not care (and hence don’t register) or who don’t know that they own rights.  This approach would seem to be the ideal method of both protecting the interests of rights holders and the general public, but the legislation introduced in 2004 to enact this idea went nowhere. 

Perhaps even more radical is the approach of Brewster Kahle.  There is, Kahle argues, an alternative to GBS: orphan works legislation.  But Kahle’s vision of orphan works is different than everyone else’s.  For Kahle, all out-of-print books are orphans.  “Remember,” he writes, “this is all about controlling the Orphans, or out-of-print works” (emphasis added).  Later in the same post he speaks of “out-of-print/Orphan works.”  In this regard, Kahle flies counter to the Orphan Works report and the legislation that he extols, both of which make it clear that an out-of-print work is not necessarily an orphan work.

If not existing orphan works legislation, what is Kahle’s vision of a legislative solution?  We have some hints:

Only if an owner comes forward and prove they own a work (with penalties for overreaching, and not just weak anyone-can-claim-anything-with-no-negative-consequences as it is proposed now)  then they can  negotiate for money.  Otherwise Orphan/Out-of-Print works can be used by anyone, say, for non-commercial use.   This is roughly how the Orphan Works legislation works…

Kahle’s vision is one where “out-of-print” equals “orphan,” and anyone is able to make non-commercial use of the work unless an owner comes forward.  It is an inspiring vision, but to suggest that this is “roughly how Orphan Works legislation” works is disingenuousness worthy of Sergey Brin himself.  Under the proposed legislation, orphan and out-of-print books could be used by anyone for any purpose – but only after a reasonable search for a copyright owner had been conducted.  Out-of-print but non-orphan books could not be used, even if the purpose was non-commercial.  No one other than Kahle has dreamed of a system where failure to maintain a work in print would limit one’s copyright monopoly.

Other legislative solutions are possible, though none seem likely. Sally McCausland, for example, in an absolutely top-notch paper entitled “Googling the Archives: Ideas from the Google Books Settlement on Solving Orphan Works Issues in Digital Access Projects,” suggests that extended collective licensing as practiced in some Nordic countries might be a legislative alternative to GBS.  Given the Copyright Office’s antipathy to compulsory licensing, however, and the absence of other legislatively-enacted collective licenses, this suggestion would take years to develop.

So right into the middle of the legislative spectrum between those who worry about the rights of rights holders and those who worry about users appears Google’s judicial settlement.  It gives rights owners the ability to opt-out, compensates those rights owners who want to stay in, and minimizes the cost of locating copyright owners.  It is not perfect, and Samuelson in particular has articulated a slew of ways to improve it.  But as far as a legislative solution goes, David Sohn at the Center for Democracy & Technology has still said it best:

In short, yes, Congress should have the last word. But in the meantime, the Google Books settlement offers the chance to expand public access and increase exposure for many millions of out-of-print works in ways that generally should benefit readers and authors alike.

Comments

[Peter Hirtle]

David, your post highlights why something like GBS may be the only possible solution to the vexing issue of illustrations in books. You state that "standard stock photography contracts almost always explicitly specify rights, print runs, editions etc so the default 201(c) would hardly ever apply." Yet my recollection is that in one of the National Geographic Society cases, there were only 7 photographs that had contracts that limited NGS's future use of the illustrations. I have seen book contracts where the author was required to secure copyright transfer of all the illustrations in the book. Given the exceptionally long time that copyrights endure, one cannot also assume that what has been standard practice for the last 25 or 50 years was standard practice 75 years ago. I even just read a case in the UK that dealt with photographs in newspapers. In that case, the standard practice was for the photographer to turn over photos to the paper. The paper might decide to publish that photo in the future. If they did, the license agreement was negotiated after the photograph was published!

So I believe that we are in agreement that identifying a clearing rights for illustrations in books would be an impossible task - even though books without illustrations or photographs are not nearly as desirable. It will be interesting to see how Google approaches this intractable problem.

[David Sanger]

Peter, standard stock photography contracts almost always explicitly specify rights, print runs, editions etc so the default 201(c) would hardly ever apply.

The Tasini decision http://j.mp/2uVNCL also affirmed that absent any specific instructions electronic right do not ensue.

It is for this reason that negotiating rights would be impossible for practical purposes. Furthermore, for out of print books, even finding the image rightsholders would be a formidable task.

As for the photo or illustrator groups coming to agreement with Google is is difficult to see that happening without legal action and some kind of settlement and statutory license and I agree with you that expectations of revenue may be unrealistic.

It is difficult to see how this may be resolved, even though from the perspective of the reader/public intact books are much, much more helpful

ref Title 17m Section 201(c)

"In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series."

[Peter Hirtle]

David, thanks for the comment. Clearly for many books not having pictures, maps, and illustrations would greatly decrease (though not eliminate) their usability. I suspect for these books, the Google database will be more like the search engine that Google originally envisioned. Users will find books for which illustrations are needed and request those books on loan from the libraries that own them. If the choose instead to purchase the bowdlerized versions and are disappointed, that is a marketing problem for Google but not of concern to libraries.

I do hope that Google can figure out a way to include illustrations. If GBS is approved, Google will be distributing the books on behalf of the copyright owners of the edition, which makes me wonder if 201(c) could be used to justify including illustrations and maps. Alternatively, Google might decide to follow those courts that concluded that registering or renewing a copyright in a book did not automatically register the copyright in all the component parts of the book - which would inject many of the illustrations into the public domain.

I do worry that photographers and illustrators may have an inflated estimation of the value of their contributions, and as a consequence attempt to throw roadblocks in the face of this desirable project. $45 million has been set aside for the rights holders in the settlement. If you assume that there are 10 million digitized books, and that copyrighted illustrations and maps constitute 1% of the pages in those books (not an unreasonable assumption, I think), then a comparable payment to all illustrators, photographers, and mapmakers would be $450,000. While this is more money then they are getting now from these titles (which is nothing), it hardly seems worth the bother. A lawsuit on behalf of illustrators would only benefit the lawyers. I hope, therefore, illustrators will opt not to shortchange readers (which I agree is what will happen), but instead be happy that their work is becoming better known (and may lead to more future commissions).

[Peter Hirtle]

Klaus, congratulations on the book. I look forward to practicing my German while reading it.

The opt-out method has worked well for web sites, and it would work well for books. Unfortunately, the plaintiffs in the Google case think otherwise.

A colleague has pointed out to me that Ken Auletta has an interesting quote on this in his new book, Googled (which I haven't read yet). He reportedly says:

"If [Google] had had a copyright lawyer among their founders, they never would have started the company. The basic business of a search engine is to copy everything. To make your copy, and then search it. The first thing that happens, arguably, is infringement of copyright law. I say 'arguably' because there's never been a case on it. From day one, Google went out and copied the whole Internet. Can you imagine a company starting in the film world and the first thing they did was make a copy of every film in existence? That company couldn't have gotten started. The Web is always about copying, but copyright law is about making copying illegal." (127)

[David Sanger]

Peter, as an archivist what is your perspective on offering books for viewing, or even for purchase, with all of the photographs, maps, illustrations and paintings redacted?

Negotiating rights for visual works, which currently are excluded from the settlement, will add multiple layers of complexity, both for out-of-print works and orphan works.

Yet until this issue is addressed, the public and the visual rightsholders will be shortchanged.

[Dr. Klaus Graf]

Great Post, Peter.

In the European context there is a clear analogy for an opt-out model which is working since years. The first search engines (Altavista etc.) have clearly violated copyright when integrating by COPYING websites in their index without asking the rights holder. There is no exception for this in European copyright legislation until now!

For my own thoughts on Google and orphans see my new book in German available for free (and CC-BY-SA) under http://www.contumax.de