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Author: Matthew Sag

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If Cows Could Read

In my forthcoming article, Copyright and Copy-Reliant Technology, I investigate the significance of transaction costs in the context of technologies that copy expressive works for nonexpressive ends. These “copy-reliant technologies”, such as Internet search engines and plagiarism detection software do not read, understand, or enjoy copyrighted works, nor do they deliver these works directly to the public. They do, however, necessarily copy them in order to process them as grist for the mill, raw materials that feed various algorithms and indices.

Copy-reliant technologies usually, but not invariably, incorporate some kind of technologically enabled opt-out mechanism to maintain their preferred default rule of open access. For example, every major Internet search engine relies on the Robots Exclusion Protocol to prevent their automated agents from indexing certain content and to remove previously indexed material from their databases as required.  A robots.txt file at the root level of a website in the form of: User–Agent:* Disallow: / will banish all compliant search engine robots from a website.

The Robots Exclusion Protocol is pretty easy to implement and it is highly customizable. The interesting question for copyright law is “does the provision of an opt-out make any difference?”

In the Article, I argue that it opt-outs are significant in the context of a fair use analysis. The doctrinal analysis is in the paper, but the basic point is that when transaction costs are otherwise high, opt-out mechanisms can play a critical role in preserving a default rule of open access while still allowing individuals to have their preferences respected.

The notion that the rights of the property owner can be protected under permissive default rules coupled with an opt-out is hardly new.  Robert Ellickson famously describes the “fencing out” rule whereby cattle were allowed to roam freely on the property of others unless that property was fenced.  Landowners still maintained their property rights, subject to the burden of fencing out neighbors’ cattle.  Presumably, if cows could read, a sign not unlike the Robots Exclusion Protocol would have been sufficient.

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Unfriending, an experiment

Too many friends. This in not a problem that most of us would have considered before the phenomenon of social networking, but it is real enough that “unfriend” and the gerund form “unfriending” have not only made it into the New Oxford American Dictionary this year, “unfriend” was named the 2009 Word of the Year.

As my facebook network mushroomed to over 300 friends I realized that the breadth of my facebook network was limiting its depth. There were things I would like to update my friends about, but did not feel like sharing with all of my fbf’s (facebook friends, not to be confused with bff’s). Thus began the unfriending experiment, or RIF (reduction in friends) if you prefer.

My first approach was to unfriend everyone who I believed also had too many friends. Anyone with 800 fbf’s is simply not discerning enough for my liking, and I did not consider the fact that this lack of discernment may have been the only reason they were friends with me to be particularly redeeming. The first wave of unfriending was satisfying, but it left me wanting more (well less actually).

Next to go were professional acquaintances who did not seem to use facebook very much. Still too many friends, hard choices would need to be made. I unfriended several people that I genuinely like in the real world, but who use facebook in ways I don’t care for – the main one being to post links to their twitter feeds or blog posts.

By this stage I was down under 200 and I realized that if I nixed all of the spouses of friends I would be able to streamline even further. Old school acquaintances who I had never much cared for were the next victims of this online massacre. They probably should have been the first, but I was in a sentimental mood when I began. My unfriending mania reached its peak when I realized that I was in shooting distance of 100. Some arbitrary choices were made and all of a sudden I was down to a manageable 99 friends. Mission accomplished.

None of my unfriended friends have complained, I expect few have even noticed. I post more regularly to facebook now and read my remaining friend’s posts with more interest. In fact, I am so happy with my small circle of facebook friends that I am thinking of adding a few more.

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Google Books limited to “common legal heritage”

On November 13, 2009, the parties in the Google Book litigation filed an Amended Settlement Agreement and a motion for preliminary approval of the amended settlement with the District Court. The amended agreement is available here. Elinor Mills at CNET has a good summary of the revised agreement.

The most significant change appears to be the narrowing of the scope of out-of-print works. The revised settlement is limited to U.S. works registered with the Copyright Office and non-U.S. works registered with the U.S. Copyright Office, or published in Canada, the United Kingdom or Australia. According to Google’s FAQ, “After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include countries with a common legal heritage and similar book industry practices.” To sweeten the deal for Australia, Canada and the UK, their publishers and authors will have their own representation on the board of the rights registry which oversees the settlement.

The Financial Times reports that 95 per cent of all foreign works will no longer be included in Google’s digital book archive. Google will have to find a way of working with international rightsholder organizations to broaden the reach of their database.

As predicted, the revised agreement now includes greater protections for rights holders who cannot be traced before a book is scanned and made available online. Money derived from orphan works will be held for 10 years and unclaimed funds will now be distributed to charities in Australia, Canada, the UK and the US. Under the previous version of the Settlement, the Registry actually benefited from failing to locate the relevant copyright owners.

The agreement does not do anything to extend the orphan works license to Google’s competitors, that will still require legislative intervention. However the most favored nation clause which diminished the Registry’s incentives to deal with third parties if and when that legislation is forthcoming has been deleted from the agreement.

There are other significant changes worth mentioning, but they will have to wait for another day.

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What to expect on Monday (Google Book)

The now defunct version of the Google Book Class Action Settlement is a complicated document consisting of 141 pages, 160 definitions, 17 separate articles and 116 separate clauses, not including the substantial provisions contained within the 15 attachments where several important features of the deal were buried.

The initial draft of the agreement dates back to October 28, 2008, when Google announced that it had reached a settlement of the highly publicized class-action lawsuit brought by the Authors Guild and another equally important lawsuit brought by the American Association of Publishers.

Opposition from various quarters caused the parties to reconsider the details of the settlement and a new version is due on Monday November 9, 2009. In my recent article I compared the settlement to the most likely outcome of the litigation the settlement resolves. In this post I speculate about the contents of the revised agreement.

The essential features of the old settlement agreement were:

  • Money. Google made some pretty significant financial concessions, including one-time payments of over $100 million dollars and a revenue sharing agreement.
  • Digitization, Indexing & Search. In return for these concessions Google received the right to continue to operate its book search engine, substantially in its current form which is arguably consistent with copyright law’s fair use doctrine.
  • Commodification. The settlement also gave Google the ability to explore new revenue possibilities in cooperation with authors and publishers. The highlights consisted of extensive book previews, consumer e-book purchases, institutional subscriptions to the entire Google Book database and various other “New Revenue Opportunities”.
  • New institutional arrangements. Beyond the mechanics of the agreement itself, the key elements of the new Google Book universe were to be the “Book Rights Registry” and the “Author-Publisher Procedures”. Although the Registry received more attention from critics of the settlement, the Author-Publisher Procedures appeared to be the key vulnerability from a class-action fairness perspective. These procedures determine who controls the exploitation of a work within the Google Book universe and who benefits from that exploitation. In many cases the Author-Publisher Procedures act like a standard form publishing contract that supersedes deals negotiated before the importance of digital rights was widely realized.
  • Orphan works exploitation. The treatment of orphan works pervades all aspects of the current Settlement agreement. The agreement increased public access to orphan works by presumptively including almost all works in most commercially significant uses. Orphan works could be digitized, indexed, made available for partial-previews, sold as consumer purchases and incorporated into institutional subscriptions. As well as benefiting Google, revenues attributable to these uses will flow in part to the Registry, and to registered authors and publishers.
  • Orphan works monopoly. In its current form the Settlement only solves the orphan works problem for Google.

    What should we expect on Monday?

    The most desirable change from an antitrust perspective would be to allow Google’s competitors to exploit orphan works on the same terms as Google. The problem with this solution is that it further strains the boundaries of class action law and looks more and more like private legislation. This should not, in my view, be enough to derail the deal if the parties can show that all of the relevant sub-class interests were adequately represented.

    The Author-Publisher Procedures enhance the coordinating function of the Settlement by streamlining the incorporation of existing author-publisher contractual terms into the framework of the Google Book universe. However, where an existing author-publisher contract gives both parties some control over electronic exploitation, or simply fails to make any provision for electronic rights, the Author-Publisher Procedures effectively overwrite those contracts. These new terms do not appear to systematically disadvantage either authors or publishers, but they strike me as a one size fits all solution that could be substantially improved upon.

    Finally, I expect the revenue sharing aspects of the deal to become more complicated.

    2

    Fear of a Google Planet

    Should we fear Google? This question, unthinkable ten, maybe even five, years ago, seems to dominate internet policy discussion today. AT&T is afraid of Google Voice. Apple might be afraid of the Google Phone. Microsoft is afraid that Google Apps will make its Office suit redundant. These fears are justified, but they are also good. In most cases Googlephobia is a condition suffered by competitors. Google will probably kill off some competitors, but it will force many more to continue to innovate and provide better products to the consumer at lower prices. So, yes, some people should fear Google. But should we the public?

    “Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of sight and hearing being instantly aroused. In both cases the eyes and mouth are widely opened, and the eyebrows raised.” Charles Darwin, The Expression of the Emotions in Man and Animals.

    In its pre-settlement incarnation, the Google Book Search (GBS) project was merely an astonishing attempt to build a comprehensive search engine to allow full text searching inside millions of books. The GBS envisaged in the Settlement (before the DOJ sent the parties back to the drawing-board) was much more ambitious. Not satisfied with digitization, indexing and limited display of books consistent with copyright law’s fair use doctrine, Google, the Authors Guild and a handful of publishers struck a deal which allowed for the commoditization of digital books as direct substitutes for paper copies. Subject to an opt-out and a few other exclusions, the Settlement swept in almost all books subject to U.S. copyrights and established an entirely new institutional framework for clearing digital book rights.

    My personal view is that justified astonishment at the GBS Settlement has, in too many cases, given way to unjustified fear. Google is still far from being the new Microsoft as the Department of Justice’s Christine Varney has asserted. It certainly does not act like it. Google’s track record of openness and innovation are heartening and there is very little evidence so far that they plan on abandoning their “don’t be evil” corporate culture.

    Googlephobia appears to be the foundation of some pretty wild assertions in the context of the Google Book dispute in particular. Google conceives that it is set to liberate out-of-print books from their dusty dungeons on the relatively inaccessible shelves of the worlds great libraries. Critics of the deal (and the initial more modest GBS) see plans for monopolization of hitherto non-existent markets, the destruction of libraries, universities and even the book itself.

    The Google Book Settlement was not perfect, but my own fear is that Googlephobia and the intervention of the Department of Justice have left us worse off than we would have otherwise been. The Google skeptics are right about a number of the Settlement’s shortcomings, but now that the parties renegotiating the deal we had all better hope that GBS version 3 is better, fairer, and more accessible — not just smaller and less ambitious.

    It might be naive to simply trust in Google, but the fear Google now inspires seems equally misplaced.