The University of Michigan Press has opted in to the Google Book Search Settlement.
Here's an excerpt from the announcement:
University of Michigan Press has decided to opt in to the terms of the Settlement and is beginning the process of claiming books digitized by Google under its Book Search program. We will claim all titles under copyright on behalf of our authors.
Noted copyright expert William Patry, Senior Copyright Counsel at Google and former copyright counsel to the U.S. House of Representatives Committee on the Judiciary, has published Moral Panics and the Copyright Wars with Oxford University Press. Patry is also blogging on this topic at Moral Panics and the Copyright Wars. (His well-regarded previous blog was The Patry Copyright Blog.)
Here's an excerpt from the press release:
In Moral Panics And The Copyright Wars, Patry details the path that we have taken to get to our current misunderstanding of copyright laws. The most prolific scholar of copyright in history and the author of an eight-volume treatise on copyright and a separate treatise on the fair use doctrine, Patry argues that the cause of these copyright wars throughout history can be largely attributed to words—specifically, metaphors. Patry describes different kinds of metaphors, using them to further illustrate the ways that copyright laws have come to be unnecessarily expanded and misunderstood. For example, nowadays the term "pirate" is used in many instances to describe a type of copyright violation. Patry writes that it is the repetition of the pirate metaphor that makes the term stick, although the metaphor may be used incorrectly or may even be entirely false. This repetition of such metaphors causes whatever company or individual that has come to be associated with the word "pirate" to always be attached to the negative traits associated with a "pirate." This is just one of the ways that Patry shows the influence that words have had in negatively expanding copyright laws as well as causing the public, those who the laws are meant to help, to misunderstand them.
Patry contends that it has been this metaphoric language that has led to poor business decisions and obscured copyright law's true, public purpose. He concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning—and that bring respect back to our copyright process.
The Creative Commons has released Defining "Noncommercial": A Study of How the Online Population Understands "Noncommercial Use".
Here's an excerpt:
In 2008-09, Creative Commons commissioned a study from a professional market research firm to explore understandings of the terms"commercial us" and "noncommercial use" among Internet users when used in the context of content found online.
The empirical findings suggest that creators and users approach the question of noncommercial use similarly and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. Perceptions of the many use cases studied suggest that with the exception of uses that earn users money or involve advertising—at least until specific case scenarios are presented that disrupt those generalized views of commerciality—there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial.
Uses that are more difficult to classify as either commercial or noncommercial also show greater (and often statistically significant) differences between creators and users. As a general rule, creators consider the uses studied to be more noncommercial (less commercial) than users. For example, uses by a not-for-profit organization are generally thought less commercial than uses by a for-profit organization, and even less so by creators than users. The one exception to this pattern is in relation to uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial.
The most notable differences among subgroups within each sample of creators and users are between creators who make money from their works, and those who do not, and between users who make money from their uses of others' works, and those who do not. In both cases, those who make money generally rate the uses studied less commercial than those who do not make money. The one exception is, again, with respect to personal or private uses by individuals: users who make money consider these uses more commercial than those who do not make money.
The Association of Research Libraries has released "Summary on House Committee on the Judiciary Hearing: 'Competition and Commerce in Digital Books' (Sept. 10, '09)."
Here's an excerpt:
The panel of witnesses was evenly divided on these issues, with four unequivocally in favor of the settlement, including representatives from Google and the Authors Guild. Three witnesses were unequivocally opposed, including Register of Copyrights Marybeth Peters and a representative from Amazon.com. The eighth witness, law professor Randall Picker of the University of Chicago, was ambivalent and suggested several changes that he felt would cure potential problems with the Settlement. A complete list of witnesses appears on the last page of this summary, with hyperlinks to the written testimony of each witness.
Ira S. Nathenson, Assistant Professor of Law at St. Thomas University, has self-archived "Looking for Fair Use in the DMCA's Safety Dance" at SSRN.
Here's an excerpt:
Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ('DMCA') provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the 'third wheel,' the users of internet services. Even Senator John McCain—who in 1998 voted for the DMCA—wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain asked YouTube to review take-downs targeting campaign videos before removing them. Unsurprisingly, YouTube declined in fear of losing its safe harbor.
This Article does not adopt McCain's suggestion that service providers engage in individualized review of campaign take-downs. But this Article takes extremely seriously an assumption underlying McCain's request, namely, that fair use might be better protected by the DMCA as it is currently written. This Article puts forth a 'fair-use friendly' way of reading the DMCA to better protect users of online services. As a starting point, as noted by the court in Lenz v. Universal Music, copyright owners must consider fair and other non-infringing uses before sending take-down notices. Expanding upon Lenz, this Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech. Accordingly, copyright owners must "stop and think" before sending take-downs.
A digital video of David C. Drummond, Senior Vice President of Corporate Development and Chief Legal Officer at Google, testifying at the House Judiciary Committee hearing on "Competition and Commerce in Digital Books" is available on YouTube.
Version 5 of the Google Book Search Bibliography is now available from Digital Scholarship.
This bibliography presents selected English-language articles and other works that are useful in understanding Google Book Search. It primarily focuses on the evolution of Google Book Search and the legal, library, and social issues associated with it. Where possible, links are provided to works that are freely available on the Internet, including e-prints in disciplinary archives and institutional repositories. Note that e-prints and published articles may not be identical.
The following recent Digital Scholarship publications may also be of interest:
The American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries have submitted a supplemental filing regarding the Google Book Search Settlement.
Here's an excerpt from the announcement:
While the library associations' position has not changed since their initial filing, the groups believe that recent activity, such as an amended agreement reached between Google and the University of Michigan, the University of Texas-Austin and the University of Wisconsin-Madison, Google's recent public statement regarding privacy, and the library associations' communication with the Antitrust Division of the U.S. Department of Justice (DOJ) should be brought to the court's attention. In their supplemental filing, the library associations call upon the court to address concerns with pricing review, to direct Google to provide more detail on privacy issues, and to broaden representation on the Books Rights Registry.
The Federal Republic of Germany has filed a lengthy objection to the Google Book Search Settlement.
Here's an excerpt:
The proposed Settlement also attempts to characterize itself as applying to actions taken only within the United States and, hence, without impact in other countries where U.S. copyright rules do not apply. Nowhere is this more clearly incorrect than in the realm of making the books available over the Internet. . . .
Privacy is another key area of conflict. The proposed Settlement has few provisions protecting the privacy of authors, publishers or users. In sharp contrast, Germany strongly protects the privacy of individuals who use the Internet through the Federal Data Protection Act (Bundesdatenschutzgesetz or "BDSG") of 1990, as amended in 2009, and the Telemedia Act (Telemediengesetz or "TMG") of 2007, as amended in 2009. . . .
The proposed Settlement raises an even more fundamental issue of fairness, causing concern that German authors may find their own voices unheard. The plaintiff Authors Guild, representative of the author sub-class, cannot adequately and fairly represent German authors or their interests because of its limitations on membership. For an author to join the Authors Guild, he or she must have been published by an established American publisher. . . .
Similarly, the plaintiff Association of American Publishers does not adequately and fairly represent German publishers or their interests because its membership is only open to "all U.S. companies actively engaged in the publication of books, journals, and related electronic media." . . .
For the reasons summarized above [the text has more objections than those abridged here], the proposed Settlement will have an immediate impact upon German authors, publishers and digital libraries by setting a industry-changing precedent that not only gives defendant Google an unfair advantage over all other digital libraries (commercial and non-commercial) in the United States and Germany, but also will flout German laws that have been established to protect German authors and publishers, including with respect to digital copying, publishing and the dissemination of their works. The decision of this Court with respect to this Settlement will have the dramatic and long-range effect of creating a new worldwide copyright regime without any input from those who will be greatly impacted — German authors, publishers and digital libraries and German citizens who seek to obtain access to digital publications through the Google service.
In "Google Book Search Settlement: A Publisher's Viewpoint," Tim Barton and Barbara Cohen of Oxford University Press discuss the Google Book Search Settlement with Mary Minow.
Here's an excerpt:
[Barton] Finally, it is also worth considering what happens if the settlement fails. The settlement offers us a vision of a world where all Americans have access—for free—via c. 20,000 public libraries and higher education institutions—to millions of works which are not now available. They would also have substantial free access to those same titles from every (online) computer in the country. Consumers could also purchase these titles (for what I believe will be a reasonable price), and institutions can subscribe to them (again for what I believe will be a reasonable price). The alternative is access to snippets, at most.
The availability of a book used to be determined either by whether a publisher could justify a print run, or by access to the specialized collections of a relatively small number of libraries. Printing technology and cost structures meant that books were put out of print long before their useful lives were over. We now live in a time when technology and the different commercial dynamics around internet search have combined to give us an unprecedented opportunity to make available again the ideas and work of millions of such books written by generations of scholars and writers. Why wouldn't we grasp that opportunity?
Timothy K. Armstrong has self-archived "Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public" in SSRN.
Here's an excerpt:
Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.
These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used "open content" licensing arrangements, such as the GNU General Public License ("GPL") for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results.
Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.
In "Digital Library Europeana Said To Be Europe’s Answer to Google Books Settlement," Dugie Standeford examines Google Book Search in the European context and considers whether Europeana can compete with it.
Here's an excerpt:
Europeana has the potential to be the "Google-like service Europe needs" but as part of a broader vision, said Europeana Marketing and Communications Manager Jonathan Purday. The EC has enabled Europeana to become operational and laid the foundations for an integrated platform providing access from museums, archives, libraries and audiovisual collections. But the digital library's future "depends on countries scaling up their digitisation efforts" and unifying their fragmented legal framework, he said.
Copycense has published an editorial asking "Is Creative Commons Good for Copyright?"
Here's an excerpt:
We conclude now, as we did in 2007, that the continued use and prominence of Creative Commons licenses actually obscures the real copyright issues we face in this country, and keeps Americans from settling on the proper parameters of digital information use, access, retrieval and preservation in the 21st century.
Jerry A. Hausman and J. Gregory Sidak have self-archived "Google and the Proper Antitrust Scrutiny of Orphan Books" in SSRN.
Here's an excerpt:
We examine the consumer-welfare implications of Google's project to scan a large proportion of the world's books into digital form and to make these works accessible to consumers through Google Book Search (GBS). In response to a class action alleging copyright infringement, Google has agreed to a settlement with the plaintiffs, which include the Authors Guild and the Association of American Publishers. A federal district court must approve the settlement for it to take effect. Various individuals and organizations have advocated modification or rejection of the settlement, based in part on concerns regarding Google's claimed ability to exercise market power. The Antitrust Division has confirmed that it is investigating the settlement. We address concerns of Professor Randal Picker and others, especially concerns over the increased access to 'orphan books,' which are books that retain their copyright but for which the copyright holders are unknown or cannot be found. The increased accessibility of orphan books under GBS involves the creation of a new product, which entails large gains in consumer welfare. We consider it unlikely that Google could exercise market power over orphan books. We consider it remote that the static efficiency losses claimed by critics of the settlement could outweigh the consumer welfare gains from the creation of a valuable new service for expanding access to orphan books. We therefore conclude that neither antitrust intervention nor price regulation of access to orphan books under GBS would be justified on economic grounds.
The European Commission has published Europeana—Next Steps.
Here's an excerpt:
Europeana—Europe's online library, museum and archive—opened in November 2008 as part of the Commission's digital libraries initiative, aiming to make Europe's cultural and scientific heritage accessible to all on the internet. The European Parliament and the Council have highlighted the importance of Europeana both as a showcase of the cultural heritage of the Member States on the internet and to provide access for everyone to that heritage. At the same time they have underlined the economic potential of making our cultural treasures available online as a source for creativity and new products and services in areas such as tourism and learning.
This document looks ahead to the next phase of development of Europeana and its orientation for the future. It sets out the main challenges for the coming years in relation to 1) enriching Europeana’s content with both public domain and in copyright material of the highest quality and relevance to users, and 2) a sustainable financing and governance model. The objective is to ensure that Europeana and the underlying policies for digitisation, online accessibility and digital preservation give European culture a lasting visibility on the internet and turn our common and diverse heritage into an integral part of Europe's information infrastructure for the future.
In order to gather input on the best way to achieve this objective, the Commission is launching a consultation on the basis of a series of questions that can be found in the staff working paper accompanying this Communication. Interested parties are invited to submit their comments on any or all of the questions by 15 November 2009.
See also "Questions for the Public Consultation 'Europeana—Next Steps'."
Read more about it at "EU Divided over Google Books"; "EU Urges Google, Libraries to Cooperate to Put Books On-line"; "Europe's Digital Library Doubles in Size but also Shows EU's Lack of Common Web Copyright Solution"; and "Europe's Digital Library: Frequently Asked Questions."
The University of California School of Information's Google Books Settlement and the Future of Information Access Conference was held on August 28, 2009. Below is a selection of articles and posts about the conference.
In "Opening the Book," Peter Brantley and Gary Reback outline the Open Book Alliance's objections to the Google Book Search Settlement.
Here's an excerpt:
The settlement is bad for libraries and schools: While a handful of large and well-funded university libraries participated in the Google book-scanning effort, many other educational institutions and libraries will be forced to pay monopoly prices for access to a wide swath of knowledge, straining already-stretched budgets and creating a system of haves and have-nots in our nation's education system. Community libraries would get at a single terminal to Google's private book database, and libraries serving our nation's children in K-12 schools would get absolutely nothing. The settlement widens the digital divide by limiting access to digital books in financially hard-hit communities that have budget-constrained libraries.
The Berkman Center for Internet & Society has released An Evaluation of Private Foundation Copyright Licensing Policies
Here's an excerpt:
This project, a joint effort of the Berkman Center, The William and Flora Hewlett Foundation, The Ford Foundation and the Open Society Institute, with funding from Hewlett and Ford, undertook to examine the copyright licensing policies and practices of a group of twelve private foundations. In particular, it looked at the extent to which charitable foundations are aware of and have begun to use open licenses such as Creative Commons or the GPL. We surveyed foundation staff and leaders and examined a number of examples where foundations have begun to take advantage of new licensing models for materials and resources produced by their own staff, their consultants and their grantees. The complete results of our study and our comprehensive analysis and recommendations are contained in the full Report of this project.
In "Unsettled: The PW Survey on the Google Book Settlement," Andrew Richard Albanese summarizes the findings of a survey of readers of Publishers Weekly newsletters about the Google Book Search Copyright Class Action Settlement.
Here's an excerpt:
If there is good news for the architects of the deal, it is that net support for court approval outweighs opposition—overall, 41% of respondents supported approval of the settlement, while 23% opposed the deal. Just weeks before the September 4 deadline for opting out or objecting to the settlement, however, it is notable that more than a third (36%) remain unsure of or indifferent to the settlement. Publishers (52%) support the settlement in the greatest numbers, followed by authors (42%) and librarians (29%).
In "PW Survey: Librarians On the Fence Regarding Google Settlement," Norman Oder summarizes the findings of a survey of 225 librarians about the settlement.
Here's an excerpt:
Regarding court approval of the settlement, 37% said they were unsure, while 29% supported the settlement and 21.5% said they opposed it.
In "Europe Divided on Google Book Deal," The New York Times reports that the German government intends to file a brief in the Google Book Search Copyright Class Action Settlement case opposing the settlement as "illegal."
In "A Taxonomy of Articles in PubMed Central," Jim Till examines the open access characteristics of articles deposited in PubMed Central that were published between April 7, 2008 and August 7, 2008.
Here's an excerpt:
Summary: The total number of articles published in the 4-month interval (April 7 to August 7, 2008) and contributed to PMC was 23960. The four subtypes of articles in PMC, and their estimated proportions during this 4-month interval, are: 1) Author manuscripts that are publicly accessible (7346/23960=30.7%); 2) Articles that are embargoed (378/23960=1.6%); 3) Articles that are Libre OA (3635/23960=15.2%); 4) Other articles that are publicly accessible, via Gratis OA (12601/23960=52.5%). These proportions are probably not very different for the subset of NIH-supported articles, if it's assumed that, during this 4-month interval, about 50-60% of the articles contributed to PMC were NIH-supported.
The Wall Street Journal and other news sources are reporting that a powerful new coalition is being formed to fight the Google Book Search Copyright Class Action Settlement. Amazon, the American Society of Journalists and Authors, the Internet Archive, Microsoft, the New York Library Association, the Special Libraries Association, Yahoo have been named as potential participants. Antitrust lawyer Gary L. Reback will work with the coalition.
Read more about it at "Google Rivals Will Oppose Book Settlement," "Tech's Bigs Put Google's Books Deal in Crosshairs," and "Tech Giants Unite against Google."
In "Why is the Antitrust Division Investigating the Google Book Search Settlement?," noted copyright expert Pamela Samuelson examines the DOJ Antitrust Division's investigation of the Google Book Search Copyright Class Action Settlement.
Here's an excerpt:
My concerns about the competition-policy consequences of the settlement center on the market for institutional subscriptions. The settlement gives Google the right to have and make available the contents of a universal library of books. Anyone else could build a digital library with public domain books and whatever other books it could license from publishers or BRR. But no one else can offer a comparably comprehensive institutional subscription service because only Google has a license to all out-of-print books. Google's optimistic estimate is that only 10 percent of the books in the corpus will really be "orphans," but 10 percent is still roughly two million books. Suppose the real percentage of orphans is closer to 30 percent and another 20 percent of those whom BRR tries to sign up tell the BRR reps to get lost.
Roger Clarke and Danny Kingsley have published "Open Access to Journal Content as a Case Study in Unlocking IP" in the latest issue of SCRIPTed.
Here's an excerpt:
The Internet has brought with it both means to disseminate and access content, and an enhanced expectation that content will generally be readily accessible. This has threatened entrenched for-profit activities, which have long prospered on closed, proprietary approaches to publishing, facilitated by anti-consumer provisions in copyright laws. The ePrints and Open Access (OA) movements have been complemented by the emergence of electronic repositories in which authors can deposit copies of their works.
The accessibility of refereed papers published in journals represents a litmus test of the extent to which openness is being achieved in the face of the power of corporations whose business model is dependent on the exploitation of intellectual property (IP). A specification of the requirements for "Unlocking IP" in refereed papers is presented and applied, leading to the conclusion that a great deal of progress appears to have been made. The copyright arrangements applied by most publishers enable authors to self-deposit PrePrints of their papers on their own web-sites and in open repositories; and in many cases authors can also self-deposit the PostPrint, i.e. the author's copy of the final version.
The theoretical success of the OA, ePrints and repositories movements has not – or at least not yet – resulted in success in practice. This is because only a small proportion of papers are actually self-deposited, and a large proportion of refereed papers continue to be accessible only through highly-expensive subscriptions to journals and journal-collections controlled by for-profit publishers. The unlocking of IP in refereed papers is therefore still very much a work-in-progress. Moreover, the gains may be ceded back to the for-profit publishing industry, unless concerted efforts are made within academe.
Electronic Information for Libraries has released eIFL-IP Draft Law on Copyright Including Model Exceptions and Limitations for Libraries and Consumers.
Here's an excerpt from the announcement:
The eIFL-IP Draft Law on Copyright is a practical guide to assist librarians, as well as their legal advisors and policy makers, when national laws are being updated. It contains provisions that support access to knowledge and the public interest of libraries and consumers.
The eIFL-IP Draft Law reflects contributions from international library and archive copyright experts, and amends and improves the World Intellectual Property Organization (WIPO) Draft Law On Copyright And Related Rights (version 2005), previously available online
