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The Authors Guild Is Still Wrong About Google's Book Scanning

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Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#31

Post by extra88 »

kybernetikos wrote: post #12
fapjacks wrote: post #11

Earlier quoted context omitted.

You don't have to own a copy of the copyrighted materials to have some use fall under Fair Use doctrine. Making a mixtape for your girlfriend falls under Fair Use. Making fun of the mixtape on Youtube also falls under Fair Use. Unfortunately, the big conglomerate "content" industry has pulled the wool over a lot of eyes lately.

Some use sure, but if I have an scan on my harddisk of an entire book that I don't own, are you saying that's potentially fine?

If you borrow a book from a library or a friend, scan it to a file on your computer and return the book, you've committed a distribution of a copyrighted work without the permission of the copyright holder. If the copyright holder discovered this they could sue you at which point you could attempt to present a Fair Use defense based on the four factors [0]. Assuming it's a whole published book that's available for sale, you'd need a noble use to explain why you didn't just buy a copy to scan for yourself but even if you lose, the damages could be relatively small assuming you didn't distribute the file further.

[0] https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#32

Post by jim-greer »

criddell wrote: post #27
jim-greer wrote: post #24

Earlier quoted context omitted.

Fair use allows for this kind of thing, but is fuzzy: https://en.m.wikipedia.org/wiki/Fair_use The web is a little different. One factor is that robots.txt is effectively an opt-out. But no, in general indexing a site doesn't require permission.

Right, and I'm saying that indexing a book shouldn't require permission either. Just as you can use robots.txt to opt out of indexing, so can you contact Google and tell them to remove your work from their index.

Whoops, misread your comment. Agreed.

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#33

Post by thedanfilter »

criddell wrote: post #27
jim-greer wrote: post #24

Earlier quoted context omitted.

Fair use allows for this kind of thing, but is fuzzy: https://en.m.wikipedia.org/wiki/Fair_use The web is a little different. One factor is that robots.txt is effectively an opt-out. But no, in general indexing a site doesn't require permission.

Right, and I'm saying that indexing a book shouldn't require permission either. Just as you can use robots.txt to opt out of indexing, so can you contact Google and tell them to remove your work from their index.

But they aren't just indexing the book. They are copying it completely. Then using that copy to provide a commercial service to people that reinforces the Google brand.

In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law.

However, if I go one step further, commercialising my collection of digitised books by providing them online to everyone in the world in a searchable format - but removing every few pages - that somehow makes the original copyright infringement legal?...

Does Google Books provide a useful service? I think Yes.

Do they infringe copyright to do it? I think Yes.

How could they not infringe copyright?

I suggest if they bought every book that they digitise, they would then have the right to index those books so that they could offer their fair use service to people. Optionally, publishing houses and authors could opt-in to the system by providing them with a free book or a waiver.

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#34

Post by dragonwriter »

thedanfilter wrote: post #33
criddell wrote: post #27

Earlier quoted context omitted.

Right, and I'm saying that indexing a book shouldn't require permission either. Just as you can use robots.txt to opt out of indexing, so can you contact Google and tell them to remove your work from their index.

But they aren't just indexing the book. They are copying it completely. Then using that copy to provide a commercial service to people that reinforces the Google brand. In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. However, if I go one step further, c…

> In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law.

Its, on first glance, a violation of the copyright owner's exclusive rights to create copies, sure.

Whether its actually infringement or not depends on whether it falls in one of the exceptions to the exclusive rights, such as fair use. Copying a library book and just to keep it for yourself does not seem likely to do that.

> However, if I go one step further, commercialising my collection of digitised books by providing them online to everyone in the world in a searchable format - but removing every few pages - that somehow makes the original copyright infringement legal?...

Quite possibly. Fair use is funny that way, because the boundaries are not crisply defined but anything that falls within it is an exception to the exclusive rights of copyright, transforming what would otherwise be infringement into non-infringement.

> I suggest if they bought every book that they digitise, they would then have the right to index those books so that they could offer their fair use service to people.

If the service is fair use, then whether they own physical copies or not is immaterial, since the users ownership of physical copies of the work is not one of the factors called to be considered in fair use analysis.

You don't acquire a right to fair use of a copyrighted work by purchasing a copy of the work, everyone has an inherent right to fair use (which was a judicially identified limitation of Constitutional character before being enshrined in statute) inherently.

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#35

Post by lelandbatey »

derekp7 wrote: post #21
epistasis wrote: post #3

>In the “friends of the court” brief, it says the law was never intended to “permit a wealthy for-profit entity to digitize millions of works and to cut off authors’ licensing of their reproduction, distribution, and public display rights.” This "cutoff" language is part of what makes the Author's Guild argument fall down. The authors still get all the normal licensing rights as before, so the argument appears wrong…

Basically, they are saying that if anyone makes a profit off their work, they deserve a cut of it. Makes sense on the surface of it, but let's try applying this to other categories. Take for example a food critic. He makes his living from reviewing the creative output of various chefs. Without the chefs doing what they do, the critic wouldn't have an audience and therefore no newspaper column. So do the chefs deserve…

I like your example quite a lot. I feel like if Google where providing a service that only indexed books, but did not provide any content, the authors guild would not have a leg to stand on.

In this altered Google Books service, let's say I search for the following phrase:

    Then they were looking at the familiar environs of the ISS Flight Control Room,
    which was at Johnson Space Center in Houston. The director of mission
    operations was sitting in front of the camera stroking his iPad. He didn't seem
    to be aware that the camera was on.
This "alternate universe Google Books" would present you with only the following information:

    Book: Seveneves
    Author: Neil Stephenson
    Quote is found on page: XXXX
    [ CLICK HERE TO BUY THIS BOOK! ]
The functionality of being a "Book search engine" would remain, without reproducing any copyrighted material. I imagine that this alternate version of Google Books would not incur any ire from the Authors Guild, or if they did take issue, Google's use of their books would be firmly upheld as fair use.

As it stands now, Google Books shows you some of each book you search for, and I suspect that's what the Authors Guild cares about.

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#36

Post by criddell »

thedanfilter wrote: post #33
criddell wrote: post #27

Earlier quoted context omitted.

Right, and I'm saying that indexing a book shouldn't require permission either. Just as you can use robots.txt to opt out of indexing, so can you contact Google and tell them to remove your work from their index.

But they aren't just indexing the book. They are copying it completely. Then using that copy to provide a commercial service to people that reinforces the Google brand. In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. However, if I go one step further, c…

> But they aren't just indexing the book. They are copying it completely.

Is that different than what they do with web pages? Here's their copy of this site:

https://webcache.googleusercontent.com/search?q=cache:DjfN_3...

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#37

Post by thedanfilter »

dragonwriter wrote: post #34
thedanfilter wrote: post #33

Earlier quoted context omitted.

But they aren't just indexing the book. They are copying it completely. Then using that copy to provide a commercial service to people that reinforces the Google brand. In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. However, if I go one step further, c…

> In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. Its, on first glance, a violation of the copyright owner's exclusive rights to create copies, sure. Whether its actually infringement or not depends on whether it falls in one of the exceptions to the ex…

I'm not so much disagreeing with what you have said, as obviously the various courts this has already been through hold a similar position on the matter, however, I would like to emphasise two points:

1) Google continue to possess _copies_ of books that they do not own. Hence my suggesting they purchase the books (i.e. I don't think that partnerships with libraries is enough). To offer the service of Google Books they must retain these copies, i.e. to allow you to read individual pages of the books.

2) Fair use usually entails the production of another copyrighted work that includes as a very small portion the existing copyrighted material. For example, a quote in a book. However, there are some instances such as for criticism or satire that allow a far greater amount of the original material to be used. But my main point is that a new work is created that is now distributable and is complete in and of itself, i.e. it does not rely on the maintenance of any source materials for its continued existence, e.g., a paper, a book, a video, a movie, a poster, a painting, a program, etc.

The copyrighted work that Google have created is entirely their own, i.e. the source code related to the Google Books service. The copyrighted material they are using is the data used by their system. I don't think it is right to argue that each time a person accesses Google Books that the transformation from data in the database to webpage output constitutes a fair use as the content output is largely just a subset of whichever book it is. There is no extra criticism, satire, or transformation added, as you can then read the output as you would a normal book, and the entire purpose is to read the book as the author originally wrote it (albeit with some pages missing).

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#38

Post by nkurz »

dragonwriter wrote: post #34
thedanfilter wrote: post #33

Earlier quoted context omitted.

But they aren't just indexing the book. They are copying it completely. Then using that copy to provide a commercial service to people that reinforces the Google brand. In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. However, if I go one step further, c…

> In a similar way, I could _borrow_ books from the library, take them home and digitise them, then return the library book while retaining the digital _copy_. I'm pretty sure this is not allowed under copyright law. Its, on first glance, a violation of the copyright owner's exclusive rights to create copies, sure. Whether its actually infringement or not depends on whether it falls in one of the exceptions to the ex…

  > If the service is fair use, then whether they own physical
  > copies or not is immaterial, since the users ownership of 
  > physical copies of the work is not one of the factors 
  > called to be considered in fair use analysis.
I've wondered this also. Can you point to case law for this? I've seen some seemingly authoritative sites[1] suggest that owning a legal copy is a mitigating factor under "Market Effect".

Separately, I've seen some reference to opinions that say that the "Four Factors" are just a starting point, and that other factors (presumably including legal ownership) can also be considered. For example, here[2] Posner says "the four factors are a checklist of things to be considered rather than a formula for decision" and "the factors and purposes are not exhaustive".

[1] https://www.lib.purdue.edu/uco/CopyrightBasics/fair_use.html

[2] http://www.techlawjournal.com/courts2003/ty/20020530.asp

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#39

Post by derekp7 »

lelandbatey wrote: post #35
derekp7 wrote: post #21

Earlier quoted context omitted.

Basically, they are saying that if anyone makes a profit off their work, they deserve a cut of it. Makes sense on the surface of it, but let's try applying this to other categories. Take for example a food critic. He makes his living from reviewing the creative output of various chefs. Without the chefs doing what they do, the critic wouldn't have an audience and therefore no newspaper column. So do the chefs deserve…

I like your example quite a lot. I feel like if Google where providing a service that only indexed books, but did not provide any content, the authors guild would not have a leg to stand on. In this altered Google Books service, let's say I search for the following phrase: Then they were looking at the familiar environs of the ISS Flight Control Room, which was at Johnson Space Center in Houston. The director of miss…

The thing is, often times (and I'm assuming it is based on concessions with book publishers) they only show a very small amount of context for the quote -- just enough so you can make a decision if that was really what you were looking for (essentially what falls under common fair use guidelines). And they do have links to purchase the book.

Re: The Authors Guild Is Still Wrong About Google's Book Scanning

#40

Post by derekp7 »

lelandbatey wrote: post #35
derekp7 wrote: post #21

Earlier quoted context omitted.

Basically, they are saying that if anyone makes a profit off their work, they deserve a cut of it. Makes sense on the surface of it, but let's try applying this to other categories. Take for example a food critic. He makes his living from reviewing the creative output of various chefs. Without the chefs doing what they do, the critic wouldn't have an audience and therefore no newspaper column. So do the chefs deserve…

I like your example quite a lot. I feel like if Google where providing a service that only indexed books, but did not provide any content, the authors guild would not have a leg to stand on. In this altered Google Books service, let's say I search for the following phrase: Then they were looking at the familiar environs of the ISS Flight Control Room, which was at Johnson Space Center in Houston. The director of miss…

The thing is, often times (and I'm assuming it is based on concessions with book publishers) they only show a very small amount of context for the quote -- just enough so you can make a decision if that was really what you were looking for (essentially what falls under common fair use guidelines). And they do have links to purchase the book.
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