Live From The Public (Library)

So I’m here at the Public Library for an intellectual-law smackdown about the whole Google Print program.

Speaking tonight will be Allan Adler, Association of American Publishers; Chris Anderson, Wired Magazine; David Drummond, Google; Paul LeClerc & David Ferriero, The New York Public Library; Lawrence Lessig, Stanford Law School; and Nick Taylor, The Authors Guild

And for the starfuckers out there, David Byrne is here, too.

There’s free champagne, too. Yummy.

Paul LeClerc is now talking about the challenges facing the library and libraries in general regarding the extraordinary rate of change and speed that the internet has forced on them. Noting that usually these changes take a long time (i.e. Gutenberg & the development of movable type); the internet is rapidcly compressing that timeline; after all the WWW is barely 10 years old.

Now speaking: David Ferrier. He’s setting the stage, and announces that Google has changed the name of Google Print to Google Book Search as of today. I didn’t know that. He notes that NYPL’s involvement with the program (and the English libraries involved) are working only with public domain materials. Libraries have a history of embracing disruptive behavior, e.g. embracing computing starting in the 1960s. Often the materials they deal with today never hit paper—they’re digital from start to finish (like, say, this blog). He closes with “We are America’s public research library.”

Turning it over to Chris Anderson, who’ll moderate tonight’s discussion.

There are about 32 million books; 3 million in print, 3 million out of copyright, and the rest of them are still in copyright but out of print; there are very few ways to get to them.

Goes through a timeline of how we got to where we are. Key points:

• Project Gutenberg
• The Internet Archive started scanning books, too
• Amazon’s searching inside the book
• Google launches Google Print (originally limited to books out of copyright and books provided by publishers)

In December of 2004, Google launches the Google Print Library project, which included books in the library’s collection that the publishers had not explicitly given permission to be included in the project.

Demonstrating that Google is displaying just a snippet of material with a giant visual aid. In August, the complaints started, and then the lawsuits started in September and October, and Google subsequently paused their scanning process; They’ve since restarted, focussing on older (public domain) books.

Now Yahoo! and Microsoft have started something called the “Open Content Alliance,” focusing on public domain materials.

Nick Taylor speaking now. “We object to the appropriation of the work that authors own without asking our permission. It’s work we own, it’s vaulable.” It’s like eminent domain, says Nick, but only without any kind of compensation. They state that inclusion in the project is stealing the material.

This is the point where the wireless cut out.

David Drummond now speaking. The purpose of the program is to help you find the books. You will not be able to actually read the books on line. And Google wants to direct searchers to where you will be able to actually buy the book. Google believes that there is a very very strong fair use argument here. Now going into a general defense of why fair use is important. “This is the power to discover that this book which is not in the local library exists. … perhaps the only way to prevent that book from falling completely into obscurity is to put it into a program like this.” Information does not want to be free, but it does want to be found.

Nick, counterpoint: This will tremendously increase the value of Google’s franchise; why doesn’t it accrue to the creators?

Lessig: Should there be any use of copyrighted works that should be free? Before the internet, there were plenty of examples where creative uses of copyrighted works were available for free. Talking about fair use. Now, in the digital age, every single use creates a copy, so why can’t the authors get a cut of the action?

But copyright law has always allowed some uses free. Berkeley joke insert here. If there are no free uses, then innovators cannot build on what came before them. It’s always been outsiders that has advanced the world. If we remove that freedom to innovate, then we have only freedom by Soviet.

Allen Adler, responding: That’s nice, but it has nothing to do with Google. In this context, in order to make the searches that they want to make, they’re making copies of all of these books in their entirety—reproducing without permission—to make a Google library that they can do whatever they want. They’re directly promoting their search engine by using the valuable property of the authors.

Lessig: brings up the used bookstore object. Now they’re going back and forth about what exactly the first sale doctrine really means.

Drummond: defending fair use, stating that fair use is entirely compatable with commercial use. And what’s up with—well, what they’re doing now is fine, but what about in the future?—argument. That seems to be a bit of a red herring. It seems that should Google start to do something that does create harm, then copyright law would prevent them.

Adler: well, why don’t you license all this stuff anyway? You did it before, and other providers (e.g. Microsoft) are doing it too.

Drummond: this is a card catalogue and a location finder; you certainly wouldn’t say that creating an analog card catalog would be an infringement. And you can do more with digital technology to create a better card catalogue.

Lessig: if we give you the total right, you’ll always be slow. That’s the point. You’re also promelgating all sorts of misconcpetions about copyright law. He’s dropping Section 107 of the Copyright Code.

Adler: Lessig believes that copyright represses creativity (which is a ridiculous position) and exploitation of copyright should be abolished.

Lessigs states that’s an incorrect statement of his views; stating that there’s a balance and that the position of the authors and the publishers oversteps that balance. Under the theory that they’re advancing, there are no free uses, there are no fair uses.

Nick Taylor is asked why exposing more books to readers is a bad thing. He says why should Google just take it over and exploit it for commercial gain? The exposure is valuble, but the issue here is indeed control. It’s the appropriation of material that they don’t control for a commerical enterprise.

Adler: Larry says that the whole disucssion is about control. Claims that Lessig wants authors to only be able to sell real-world physical books. Why shouldn’t the authors benefit from the new technology?

Drummond: it’s unclear how there’s any kind of taking.

Adler: the default position that they’ve taken is opt-out and that overly burdens the content creators.

Lessig: no, the position is that it’s fair use, and the opt-out is a courtesy for the creators.

Drummond: 1) it’s a fair use, and 2) the opt-out is consistent with the web search policy they use.

Adler: the web search is an implied license (which I personally disagree with).

Drummond and Adler are arguing about if the rules that apply to websites should apply to offline materials as well.

Lessig: granted that putting stuff on-line is mean to attract eyeballs, but the negative implication—that books are’t meant to attract eyeballs—is absurd. I don’t know any author who wrote to libraries and told them not to include them in the card catalogue.

What could the library do with the digital copy of the book that Google creates? Could they only buy one copy and make lots of digital copies? Lessig says that’d be a straightforward copyright violation.

Lessig is worried that Google will settle and then make it harder for non-rich entities, i.e. libraries and university and the next Google to do something similarly innovative by essentially imposing a tax.

Drummond—this enchances creativity by making a better discovery device.

Nick—I dn’t know an authro who doesn’t use Google. It’s the apprpriation of the material that’s the problem. Adler: Property owners are entitled to make their own mistakes.

Lessig—this is the most inefficient property system ever. If you force an opt-in, there is no index because it’s impossible to get all the clearences. If you ask for a piece of the pie now, you’re shutting off access to this knowledge that doesn’t advance the interest of the publishers and the authors.

Adler—what we object to is Google exploiting the value of this material and just charging ahead without getting permission. And you can certainly contact some of the copyright holders.

Lessig—but you can’t contact them all. And we can’t wait until the 22nd century for Congress to address the orphaned works problem.

Now going to the questions from the audience (not getting all of them).

Would the publishers and authors drop their objections if Google joined the Online Content Alliance? Adler—the publishers have spent much of the year just trying to start the conversation with Google and they’d welcome something like that.

Question: Thomas (Library of Congress) and the Boedlian Library are collecting this stuff anyway, so Google doesn’t need to save the world, no?

Q: How will Google impact local libraries and smaller institutions: A: they really serve different functions—you can’t pick up a physical book via Google, for example.

Q: Which is more important: Permission or compensation? Adler—probably permission. Nick—but compenstation is also important.

Q: Transactions costs question—immense costs for Google, near-zero costs for the copyright holders.

Q by Stephen Johnson: Up to now, we have our definition of fair use optimized around reading. But when you’re searching, the unit where the value is that you’re searching the entire work. Because you know as a searcher, you’re searching the whole thing. Lessig—the right to read is not a fair use, it’s a free use. Because everything digital involves making a copy, we have work with fair use which wasn’t designed for the digital era. The thing that’s produced doesn’t interefere with the underlying thing that copyright was designed to protect; there’s no substitution, so it’s fair use. Then Adler and Lessig go back and forth a bit about fair use/free use.

Q: What about abuse by the libraries? A: It’s a concern, certainly, and Google woudl think that the publishers would be happy that they’re addressing the issue.

Q: What’s the difference between making an analogue concondance/index via photocopies and Google? Adler: It’s not going to be likely repeated. Lessig: Why not change copyright law to not worry about the right to reproduce?

And that’s all folks! Thanks for tuning in…