Category: E-Books

Pamela Samuelson: “Legally Speaking: The Dead Souls of the Google Booksearch Settlement”

Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, has posted an eprint of "Legally Speaking: The Dead Souls of the Google Booksearch Settlement" on O'Reilly Radar.

Here's an excerpt:

This column argues that the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the "dead souls" to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.

(Note: See the Wikipedia entry on Nikolai Gogol's Dead Souls.)

“The Google Book Search Settlement: A New Orphan-Works Monopoly?”

Randal C. Picker of the University of Chicago Law School has self-archived "The Google Book Search Settlement: A New Orphan-Works Monopoly?" in SSRN.

Here's an excerpt:

The settlement agreement is exceeding complex but I have focused on three issues that raise antitrust and competition policy concerns. First, the agreement calls for Google to act as agent for rights holders in setting the price of online access to consumers. Google is tasked with developing a pricing algorithm that will maximize revenues for each of those works. Direct competition among rights holders would push prices towards some measure of costs and would not be designed to maximize revenues. As I think that level of direct coordination of prices is unlikely to mimic what would result in competition, I have real doubts about whether the consumer access pricing provision would survive a challenge under Section 1 of the Sherman Act.

Second, and much more centrally to the settlement agreement, the opt out class action will make it possible for Google to include orphan works in its book search service. Orphan works are works as to which the rightsholder can't be identified or found. That means that a firm like Google can't contract with an orphan holder directly to include his or her work in the service and that would result in large numbers of missing works. The opt out mechanism—which shifts the default from copyright's usual out to the class action's in—brings these works into the settlement. . . .

Third, there is a risk that approval by the court of the settlement could cause antitrust immunities to attach to the arrangements created by the settlement agreement. As it is highly unlikely that the fairness hearing will undertake a meaningful antitrust analysis of those arrangements, if the district court approves the settlement, the court should include a clause—call this a no Noerr clause—in the order approving the settlement providing that no antitrust immunities attach from the court's approval.

National Academies Makes Over 9,000 Reports Freely Available on Google Book Search

The National Academies have made over 9,000 Reports freely available on Google Book Search.

Here's an excerpt from the press release:

The National Academies today announced the completion of the first phase of a partnership with Google to digitize the library's collection of reports from 1863 to 1997, making them available—free, searchable, and in full text—through Google Book Search. The Academies plan to have their entire collection of nearly 11,000 reports digitized by 2011. . . .

Prior to this project, the Academies digitized more than 4,000 books and made them available online through the National Academies Press; most of those can also be found in Google Book Search. However, researchers who needed to gain access to hard copies of older reports, part of a legacy collection in the library, could not always find what they wanted. Many of these reports exist as single copies, and the library feared potential damage or loss of this important collection. These older reports have been digitized and are now accessible through Google. In addition, the "digitizing of these materials will add another dimension to the preservation of our reports," said Harriston. The Academies hope that wider availability of its reports will be of use to scientists in developing countries, who often rely on the Internet to gather information.

Digital Video on Northwestern’s Mounting Books Project

The Northwestern University Library has made a digital video available about their Mounting Books Project.

Here's an excerpt from the abstract of a presentation on the project that will be given at Open Repositories 2009:

The Northwestern University Library undertook a software development project to create an automated workflow to enable files from its Kirtas book scanner to be both linked to the OPAC with a page viewer application, and ingested into its Fedora repository as archivally sustainable and reusable digital objects. The web-based Book Workflow Interface (BWI) software utilizes jBPM for management and web services for key creation components. It also features an AJAX interface to support drag-and-drop creation and editing of METS-based book structures. The BWI system ingests locally scanned texts as well as texts digitized by external partners or vendors.

Open Publication Distribution System Draft Released

Bill McCoy, General Manager of ePublishing Business at Adobe Systems, has announced the release of a draft version of the Open Publication Distribution System.

Here's an excerpt from the announcement:

Stanza, the leading iPhone eBook software, includes an excellent online catalog system that enables users to seamlessly acquire free and commercial content from within the application. The Lexcycle team built this system in an open, extensible manner using Atom. Adobe and Lexcycle have been working together on Adobe PDF and EPUB eBook support, and now we are deepening that collaboration in working together, along with the Internet Archive and others, to establish an open architecture enabling widespread discovery, description, and access of book and other published material on the open web. The Open Publication Distribution System (OPDS) is a generalization of the Atom approach used by Stanza's online catalog. I'm grateful to the Lexcycle team as well as my friend and colleague Peter Brantley for their efforts on behalf of open access and interoperability.

Read more about it at “Adobe Teams Up With Stanza to Create Open EBook Catalog Standard.”

Reading Rights Coalition Protests Kindle Read Aloud Limits at Authors Guild

The Reading Rights Coalition has staged a protest demonstration at the Authors Guild's headquarters about Amazon giving author's and publishers the ability to restrict the Kindle's read aloud function for their works.

Here's an excerpt from the press release:

When Amazon released the Kindle 2 electronic book reader on February 9, 2009, the company announced that the device would be able to read e-books aloud using text-to-speech technology. Under pressure from the Authors Guild, Amazon has announced that it will give authors and publishers the ability to disable the text-to-speech function on any or all of their e-books available for the Kindle 2.

Dr. Marc Maurer, President of the National Federation of the Blind, said: "The blind and print-disabled have for years utilized text-to-speech technology to read and access information. As technology advances and more books move from hard-copy print to electronic formats, people with print disabilities have for the first time in history the opportunity to enjoy access to books on an equal basis with those who can read print. Authors and publishers who elect to disable text-to-speech for their e-books on the Kindle 2 prevent people who are blind or have other print disabilities from reading these e-books. This is blatant discrimination and we will not tolerate it." . . .

Andrew Imparato, President and Chief Executive Officer for the American Association of People with Disabilities (AAPD), said: "It is outrageous when a technology device shuts out people with all kinds of disabilities. AAPD works to remove barriers to accessibility and usability in technology, and we don’t expect to see people with disabilities singled out by having to pay more for access. New technologies, such as electronic books, should be available to everyone regardless of disability." . . .

The coalition includes: American Association of People with Disabilities, American Council of the Blind, American Foundation for the Blind, Association on Higher Education and Disability, Bazelon Center for Mental Health Law, Burton Blatt Institute, Digital Accessible Information System (DAISY) Consortium, Disability Rights Education and Defense Fund (DREDF), IDEAL Group, Inc., International Center for Disability Resources on the Internet, International Dyslexia Association, International Dyslexia Association––New York Branch, Knowledge Ecology International, Learning Disabilities Association of America, National Center for Learning Disabilities, National Disability Rights Network, National Federation of the Blind, NISH, and the National Spinal Cord Injury Association. In addition to the April 7 New York City protest, the coalition will participate in the Los Angeles Times Festival of Books on April 25-26.

Read more about it at "Disabled Group Protests Removal of Kindle's Text-to-Speech."

Consumer Watchdog Challenges Google Book Search Settlement

Consumer Watchdog has sent a letter to Attorney General Eric Holder that challenges the terms of the Google Book Search Copyright Class Action Settlement.

Here's an excerpt from the press release:

The proposed settlement announced last year creates the nonprofit Book Rights Registry to manage book digital rights issues. Here are the deal’s two most troubling aspects, Consumer Watchdog said:

—A "most favored nation" clause guarantees Google the same terms that any future competitor might be offered. Under the most favored nation clause the registry would be prevented from offering more advantageous terms to, for example, Yahoo! or Microsoft, even if it thought better terms would be necessary to enable either to enter into the digital books business and provide competition to Google. It is inappropriate for the resolution of a class action lawsuit to effectively create an "anti-compete" clause, which precludes smaller competitors from entering a market. Given the dominance of Google over the digital book market, it would no doubt take more advantageous terms to allow another smaller competitor to enter the market.

—The settlement provides a mechanism for Google to deal with "orphan works." Orphan works are works under copyright, but with the rights holders unknown or not found. The danger of using such works is that a rights holder will emerge after the book has been exploited and demand substantial infringement penalties. The proposed settlement protects Google from such potentially damaging exposure, but provides no protection for others. This effectively is a barrier for competitors to enter the digital book business.

The most favored nation provision should be eliminated to remove barriers of entry and the orphan works provision should be extended to cover all who digitize books, Consumer Watchdog said.

Open Access Publishing in European Networks Launches Newsletter

OAPEN (Open Access Publishing in European Networks) has launched a newsletter, sending the first issue out as a message on the SPARC-OAForum list.

Here's an excerpt:

First meeting of the Scientific Board

The OAPEN project has installed two external bodies (External stakeholder Group and Scientific Board) to ensure that the needs of scholars, publishers, funders and universities are met by the project's findings and developments. The Scientific Board of OAPEN consists of several international renowned scholars known for their expertise in publishing. Among them are scholars promoting Open Access such as Jean Claude Guédon (University of Montreal) or Gerhard Lauer (University of Göttingen), publishers and editors making electronic publishing come true like Charles Henry (Rice University Press) or Siggi Jöttkandt (Open Humanities Press), but also representatives from funders and university associations like Sarah Porter (JISC) and Sijbolt Noorda (EUA).

The first meeting constituted the Scientific Board as an active part of OAPEN. The board members will serve as a consulting and inspiring body for OAPEN during the funding period and hopefully beyond. Conclusions from the first board meeting were for instance to account for widespread conservative publishing attitudes among HSS scholars and at the same time the need to promote new modes of publishing such as more fluid media forms. The board members emphasised the importance of publisher-organised quality control and Open Access experiments for the mentioned fields and encouraged the project partners to conduct OAPEN as planned

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Sony’s eBook Store to Offer Over a Half-Million Public Domain Books from Google

Sony's eBook store will offer over a half-million public domain e-books from Google.

Here's an excerpt from the press release:

At Sony’s eBook store (ebookstore.sony.com), a button on the front page leads to the books from Google, which people can transfer to their PRS-505 or PRS-700 Reader at no cost. The process is seamless for Reader owners who have an account at the store. Those new to the store will need to set up an account and download Sony’s free eBook Library software. To start, people can access more than a half-million public domain books from Google, boosting the available titles from the eBook Store to more than 600,000. . . .

Books from Google will feature an extensive list of traditional favorites, including "The Awakening," "A Connecticut Yankee in King Arthur’s Court," and "Black Beauty," as well as a number of items that can be more difficult for people to access. For example, literature lovers can find and read The Letters of Jane Austen in addition to "Sense and Sensibility" and "Emma." Also included are a number of titles in French, German, Italian, Spanish and other languages. People can search the full text of the collection, or they can browse by subject, author, or featured titles.

Peter Brantley on Orphan Works and the Google Book Search Settlement

In "The Orphan Monopoly," Peter Brantley, Executive Director for the Digital Library Federation, examines issues related to orphan works and the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

There is a lot to ponder: This is arguably a massive re-writing of copyright for books without any legislative input; Marybeth Peters (MBP), the U.S. Registrar of Copyrights, observed that the settlement essentially proposes a private agreement for compulsory licensing between a large class of IP holders and world’s largest search engine. The potential scope and policy ramifications are significant. MBP mentioned that there might be treaty implications under international conventions. And despite that, one of the most shocking of her statements was that the Copyright Office has not received a single inquiry from any of the 535 elected representatives of the people of the United States. Not. One.

“Google & Books: An Exchange”

In "Google & Books: An Exchange," Paul N. Courant, Ann Kjellberg, J. D. McClatchy, Edward Mendelson, Margo Viscusi, Tappan Wilder et al. have commented on Robert Darnton's "Google & the Future of Books," and Darnton has replied.

Here's an excerpt:

[Darnton] Monopolies tend to charge monopoly prices. I agree that the parallel between the pricing of digital and periodical materials isn't perfect, but it is instructive. If the readers of a library become so attached to Google's database that they cannot do without it, the library will find it extremely difficult to resist stiff increases in the price for subscribing to it. As happened when the publishers of periodicals forced up their prices, the library may feel compelled to cover the increased cost by buying fewer books. Exorbitant pricing for Google's service could produce the same effect as the skyrocketing of periodical prices: reduced acquisitions of monographs, a further decline in monograph publishing by university presses, and fewer opportunities for young scholars to publish their research and get ahead in their careers.

The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?

The Congressional Research Service has released The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?. (Thanks to ResourceShelf.)

Here's an excerpt:

The Google Book Search Library Project, announced in December 2004, raised important questions about infringing reproduction and fair use under copyright law. Google planned to digitize, index, and display "snippets" of print books in the collections of five major libraries without the permission of the books' copyright holders, if any. Authors and publishers owning copyrights to these books sued Google in September and October 2005, seeking to enjoin and recover damages for Google's alleged infringement of their exclusive rights to reproduce and publicly display their works. Google and proponents of its Library Project disputed these allegations. They essentially contended that Google's proposed uses were not infringing because Google allowed rights holders to "opt out" of having their books digitized or indexed. They also argued that, even if Google's proposed uses were infringing, they constituted fair uses under copyright law.

The arguments of the parties and their supporters highlighted several questions of first impression. First, does an entity conducting an unauthorized digitization and indexing project avoid committing copyright infringement by offering rights holders the opportunity to "opt out," or request removal or exclusion of their content? Is requiring rights holders to take steps to stop allegedly infringing digitization and indexing like requiring rights holders to use meta-tags to keep search engines from indexing online content? Or do rights holders employ sufficient measures to keep their books from being digitized and indexed online by publishing in print? Second, can unauthorized digitization, indexing, and display of "snippets" of print works constitute a fair use? Assuming unauthorized indexing and display of "snippets" are fair uses, can digitization claim to be a fair use on the grounds that apparently prima facie infringing activities that facilitate legitimate uses are fair uses?

On October 28, 2008, Google, authors, and publishers announced a proposed settlement, which, if approved by the court, could leave these and related questions unanswered. However, although a court granted preliminary approval to the settlement on November 17, 2008, final approval is still pending. Until final approval is granted, any rights holder belonging to the proposed settlement class—which includes "all persons having copyright interests in books" in the United States—could object to the agreement. The court could also reject the agreement as unfair, unreasonable, or inadequate. Moreover, even assuming final court approval, future cases may raise similar questions about infringing reproduction and fair use.

New from Amazon: Kindle for iPhone and iPod Touch

Amazon has released the Kindle for iPhone and iPod Touch.

Here's an excerpt from the press release:

Amazon.com, Inc. (NASDAQ: AMZN) today introduced "Kindle for iPhone and iPod touch," a new application available for free from Apple's App Store that lets customers enjoy over 240,000 books, including 104 of 112 New York Times Bestsellers, on the iPhone and iPod touch using Apple's Multi-Touch user interface. Amazon's new Whispersync technology saves and synchronizes a customer's bookmark across their original Kindle, Kindle 2, iPhone and iPod touch, so customers always have their reading with them and never lose their place. Kindle customers can read a few pages on their iPhone or iPod touch and pick up right where they left off on their Kindle or Kindle 2. . . .

The Kindle application for iPhone and iPod touch lets customers bring their Kindle books with them wherever they go and takes full advantage of Apple's Multi-Touch user interface. With the new Kindle for iPhone and iPod touch application, customers can:

  • Shop for hundreds of thousands of books on their Kindle or online at http://www.amazon.com/kindlestore, and wirelessly transfer the books to their iPhone or iPod touch
  • Access their entire library of previously purchased Kindle books stored on Amazon’s servers
  • Adjust the text size of books
  • Add bookmarks and view notes and highlights

Kindle for iPhone and iPod touch is available for free from Apple’s App Store on iPhone and iPod touch or at www.itunes.com/appstore/.

"Toward the Design of an Open Monograph Press"

As part of a thematic issue on open access, The Journal of Electronic Publishing has published a paper by John Willinsky titled "Toward the Design of an Open Monograph Press."

Here's the abstract:

This paper reviews and addresses the critical issues currently confronting monograph publishing as a matter of reduced opportunities for scholars to pursue book-length projects. In response, it proposes an alternative approach to monograph publishing based on a modular design for an online system that would foster, manage, and publish monographs in digital and print forms using open source software developments, drawn from journal publishing, and social networking technologies that might contribute to not only to the sustainability of monograph publishing but to the quality of the resulting books.

ACLS Humanities E-Book XML Conversion Experiment: Report on Workflow, Costs, and User Preferences

The American Council of Learned Societies has released ACLS Humanities E-Book XML Conversion Experiment: Report on Workflow, Costs, and User Preferences.

Here's an excerpt:

In 2008, ACLS Humanities E-Book (HEB)—a subscription-based online collection of over 2,200 digital titles in the humanities—undertook an experiment to investigate the possibility of a future mass conversion of e-books preexisting in a scanned, page-image format into XML-encoded files. . . .

HEB had 20 sample page-image titles from its backlist converted to XML, using OCR-derived text files that had been created during the initial scanning process to enable searching. The books were tagged using a simplified version of HEB's standard specifications, to reduce the need for editorial intervention. . . . The cost of creating the XML titles was considerably greater than that associated with scanning (about $400 versus $170 per title).

The XML books were presented in the HEB collection side by side with their page-image counterparts. Despite any conversion-related flaws, our subsequent user survey indicated that readers preferred the XML format by a margin of about two to one, the most relevant factors cited in this regard being readability, accessible text, and additional features and functions not available in the page-image version.

Amazon Lets Publishers Decide on Whether Their Books Can Be Read Aloud by Kindle on Title-by-Title Basis

Amazon will let publishers determine whether their e-books can be read aloud by the Kindle on a title-by-title basis.

Here's an excerpt from the press release:

Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.

Nevertheless, we strongly believe many rightsholders will be more comfortable with the text-to-speech feature if they are in the driver's seat.

Therefore, we are modifying our systems so that rightsholders can decide on a title by title basis whether they want text-to-speech enabled or disabled for any particular title. We have already begun to work on the technical changes required to give authors and publishers that choice. With this new level of control, publishers and authors will be able to decide for themselves whether it is in their commercial interests to leave text-to-speech enabled. We believe many will decide that it is.

As reported previously, the Authors Guild was opposed to an unbridled read aloud Kindle capability. Here's an excerpt from "The Engadget Interview: Paul Aiken, Executive Director of the Authors Guild."

[Aiken] Well, the legal objections fall in a couple categories. One is the basic copyright objection which I know has been bandied about a lot online, and that objection comes in two parts. There's the unauthorized reproduction of the work which is one claim under copyright law—for that there has to be fixation of the copy and there's a legal question as to whether or not there's adequate fixation in the Kindle. The second claim is that text-to-speech creates a derivative work, and under most theories of copyright law, there doesn't have to be fixation for there to be a derivative work created.

Amazon's decision has been controversial. For example,here's an excerpt from Lawrence Lessig's "Caving into Bullies (Aka, Here We Go Again)":

We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works—Alice's Adventures in Wonderland—was marked to forbid the book to be read aloud. . . .

But the bigger trend here is much more troubling: Innovative technology company (Amazon (Kindle 2), Google (Google Books)) releases new innovative way to access or use content; so-called "representatives" of rights owners, Corleone-like, baselessly insist on a cut; innovative technology company settles with baseless demanders, and we're all arguably worse off.

We're worse off with the Kindle because if the right get set by the industry that publishers get to control a right which Congress hasn't given them—the right to control whether I can read my book to my kid, or my Kindle can read a book to me—users and innovators have less freedom. And we may be worse off with Google Books, because (in ways not clear when the settlement was first reported) the consequence of the class action mechanism may well disable users and innovators from doing what fair use plainly entitled Google to do.

Frankfurt Book Fair Survey on Digitization Impacts on the Future of Publishing

The Frankfurt Book Fair has released a press release that describes the results of a survey of over 1,000 industry professionals from over 30 countries about the impact of digitization on the future of publishing. (Thanks to HangingTogether.)

Here's an excerpt:

The survey also reveals that current opinion is divided on the future of the e-books and digital content versus the printed word. 40 per cent of respondents expect e-content to overtake traditional book sales as early as 2018—whereas a third predict that this will never happen.

Perhaps more surprisingly still, almost 60 per cent of respondents do not currently use e-books and e-readers at all, and 66 per cent of industry professionals still expect traditional books to dominate the market in five years time, with very few expecting e-books (seven per cent) or e-readers (two per cent) to be the main sources of revenue by 2013.

E-Book Duopoly?: Chairman of the Board of Association of American Publishers on the Google Book Search Settlement

Richard Sarnoff, Chairman of the Board of Association of American Publishers, discussed the Google Book Search Copyright Class Action Settlement at Princeton University's Center for Information Technology Policy last week.

Timothy B. Lee reports on his comments in "Publisher Speculates about Amazon/Google E-Book 'Duopoly'."

Walt Crawford on the Google Books Search Settlement

The latest issue of Cites & Insights: Crawford at Large is dedicated to an in-depth (30-page) look at the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

The agreement could be a lot worse. The outcome could also be a lot better. I'm sure Google would agree with both statements, as it finds itself in businesses where it has neither expertise nor much chance of advertising-level profits. At the same time, the copyright maximalists didn't quite win this round. We'll almost certainly get somewhat better access to several million OP books—and will have to hope (and work to see) that the price (monetary and otherwise) isn't too high.