Joho the Blog
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Lessig makes the following argument, which I believe David has also made:

"Think about Google's core business: It copies whatever content it finds on the Web and puts that content in an index. It doesn't ask the copyright owner first, though it does exclude content if asked. Thus, Google wants to do for books exactly what it has always done for the Web. Why should one be illegal and the other different?"

It's very simple why they are different: from the start, the process of putting things on the web included a method for identifying which web pages were NOT to be indexed by search engines (NOROBOT files and meta tags.) No similar system is in place for printed materials.

Therefore, the assumption should be that if an author put "Copyright, all rights reserved" on his or her work, then that's exactly what they meant unless they later declare otherwise. I don't think this is so hard to understand.

Sure, I'd like to have free search of any book in the library. But if some of the authors of that material say "No, I worked hard to create that, and I don't give my permission." then it is not right for me to do it.

Your trackbacks don't seem to be working...

I posted a response to this:

http://www.aquick.org/blog/2005/11/11/whats-wrong-with-the-google-print-argument/

Google Print searches return very little info if the work is copyrighted. You can't keep going back for more pages and you can't priunt out the pages displayed. GP seems to me to fall squarely under Fair Use.

Creators have never had untrammeled rights over their work in this country; copyright is limited in the Constitution. We do this because it's vital to the growth of culture and science that works enter the public domain. If there's any sacrifice really being made by authors who own copyrights, it is miniscule compared to the gain culture makes.

But I dispute that they are making any sacrifice. Indeed, GP is encouraging sales of books that otherwise people wouldn't know about.

Finally, authors can opt out. This is a question of defaults. Defaulting in favor of an author's "right" to control all access to her works kills a project that seems to me to be clearly within the public's interest.

Would you also, Mark, set up as a default the shrink-wrapping of all books in bookstores so we can't look inside them?

Finally finally, I don't understand whose rights you're sticking up for. Yes, I know, the rights of authors. But which authors? Whose interests are you protecting? Who are you thinking about as your blood goes up some number of degrees as you contemplate GP? (This is not a criticism in the form of a question. It would genuinely help me understand your point of view.)

David: Google Print searches return very little info if the work is copyrighted. You can't keep going back for more pages and you can't priunt out the pages displayed. GP seems to me to fall squarely under Fair Use.

Mark: Why should Google get to decide whether 2 lines is fair use, or 2 chapters? What about the next mega-corporation that comes along, and uses different rules? Google is going to give the scanned results to the libraries. What controls are there to protect that material?

And what controls are there on the accuracy of the OCR that they use? What if the meaning of scanned materials gets changed because of bad OCR results? Even 99% accuracy over millions of books means billions of errors.

Creators have never had untrammeled rights over their work in this country; copyright is limited in the Constitution. We do this because it's vital to the growth of culture and science that works enter the public domain. If there's any sacrifice really being made by authors who own copyrights, it is miniscule compared to the gain culture makes.

What gives Google the right to change the limits of copyright? If it were the Church of Scientology doing this, would people be supporting it the same way? Well if Google gets away with scanning millions of books, then there will be an explosion of others doing it.

But I dispute that they are making any sacrifice. Indeed, GP is encouraging sales of books that otherwise people wouldn't know about.

I suppose if someone broke into your house, and rummaged through all your books and left a nice index of them lying on your dining room table, you would not be happy about it.

Finally, authors can opt out. This is a question of defaults. Defaulting in favor of an author's "right" to control all access to her works kills a project that seems to me to be clearly within the public's interest.

I think the public value of this is exagerated. Amazon has had a similar thing for quite a few books, and I have never found it useful for anything. Most of what I want to search for is already on the web.

If they really want to help serious researchers, how about implementing a nation-wide inter-library loan system. It's hard enough to get the books one needs NOW. Having a better index is not the main problem.

Would you also, Mark, set up as a default the shrink-wrapping of all books in bookstores so we can't look inside them?

Well first, this is not the same as scanning millions of books. But second, this is in fact happening in Japan already, because of the number of people with very high resolution cameras and OCR in their cellphones who are ripping off material in bookstores and newsstands. (I saw this in the Boston Globe recently, but I can't find a reference right now.)

Finally finally, I don't understand whose rights you're sticking up for. Yes, I know, the rights of authors. But which authors? Whose interests are you protecting? Who are you thinking about as your blood goes up some number of degrees as you contemplate GP? (This is not a criticism in the form of a question. It would genuinely help me understand your point of view.)

Well I guess, just like you think your position is in the public's interest, I think it is in the public's interest not to allow corporations to use their strength to force changes in long-established rights granted by law.

The Fair Use guidelines for ecucational use are being worked out by a committee that included educational institutions and publishers. Why can't Google be a good citizen and work out guidelines for fair use in indexing in a similar way, rather than the heavy-handed way they are doing it?

Fair Use is a somewhat ambiguous area. It is not obvious that what Google Print does violates Fair Use. I therefore don't think Google is deciding on its own to rewrite our current insane copyright law. I think GP i within that law. The courts will decide. Given that neither of us know what the courts will say, we still have a dispute. That is, even if the courts say it's ok, you'll still think GP is a bad thing, overall. (If not, if this is only a dispute over the law, then I concede. IANAL.)

Your analogy to someone breaking into my house seems to me to be way off base. GP is scanning libraries with the libraries' permission. I understand that you think that the victims here are the publishers and authors, not the libraries, but that little wrinkle makes your analogy inapplicable. A closer example would be: Google currently indexes copyrighted Web pages, except those that opt out via robots.txt. The courts have said that's ok. I also think that it is spectacularly socially useful that search engines do this. You, I think, disagree.

You say the shrink wrapping is happening in Japan. So, do you think that's a good thing? Do you like the idea of not being able to open books in the bookstore before you buy them in order to support the publisher's claim of copyright protection? This strikes me as a far more apt analogy than your housebreaking one.

You see Google forcing changes in long-established rights. I see Google using an existing right - Fair Use. Where's the force? If the courts say GP violates Fair Use, Google will stop.

As for the Fair Use guidelines being worked out by a committee: Fair Use is determined not by committees but by a body of court decisions. It's arguable that Fair Use is based on a Constitutional right. What gives publishers and educators the right "to use their strength to force changes in long established rights granted by law"? And where are the readers in this mix? I'm not looking to compromise with publishers, who are self-interested, when it comes to public and social rights.

Other than that, I agree with you 100%, Mark :)

I do not think GP is "a bad thing overall." What is bad is Google scanning authors' works without their permission, and requiring them to specifically contact Google to "opt out". Currently Yahoo, MSN and Amazon are doing it the right way.

Google Print supporters claim that GP is doing authors a big favor by making their books more accessible, and perhaps boosting their sales. Then they claim that there are millions of books that are out of print that will be "lost" somehow if they are not indexed, and they can't go looking for permission from all those coyright owners. Well if the books are out of print, the authors are not going to make a penny from Google's scanning them.

If Google is really so interested in helping authors, why don't they make the complete results of their scanning available to the copyright holders? No, they are not doing that. The copyright owner is not even allowed to check Google's work for accuracy.

Google's approach is "so sue me if you don't like it", the common approach of arrogant powerful corporations. If they win, then before you know it, hundreds of organizations will be scanning everything they can get their hands on.

Lessig's comments on the Authors Guild brouhaha around Google Print and copyright are of the "let's you and him fight" variety and to be expected from a lawyer trained in the adversarial arts. Certainly if Google was a mom and pop scannery making indexed versions of print publications available under fair use provisions of the copyright law, the Authors Guild would not have seen value in a lawsuit (though arguably they may have chilled mom and pop right out of business with the threat). Lessig would like to see Google defend their right to scan printed matter and make indexed information of copyrighted textual work available within the fair use guidelines of American copyright law. He seems to be afraid that they will reach a settlement with their antagonists and that the matter will be resolved without the ritual opening of purses to the Knights of the bar.

I want Google's work to continue more than I care about the legal jousting. Google's project has been underway for about two years. They have a program for publishers, a program that should protect the rights of authors. Google is "partnering" with four universities and the New York Public Library to digitize a lot of books. If it was strictly a cash and carry contractual relationship, a project with libraries paying a scanning and indexing company a fee for service, then the complexities of fear associated with the newly risen corporate monolith of Search would be easily dismissed. But since Google is a full partner whose shareholders have interests in some ways orthogonal to the libraries users' interests, the matter is more complicated than Larry Lessig allows.

(Disclosure: I'm a bit of a socialist with a desire to draw a bright line between private commerce and public concerns. Schools, libraries, and access to information on the net are public concerns.)

Try as I may, and read these and other comments as I may, I fail to understand authors' objections to Google Print. Mark Dionne seems to rely entirely on formalism: I have the right to control ALL copying, so this copying should not happen, and I should not have to repeat my objection.

But lots of copying is now allowed under fair use: copies for personal study, copies for citing in reviews, copies for citing in contrary arguments...

How is an author harmed in any way by GP? How is his or her market value lessened? How is his or her incentive to write and publish the next book lessened?

Authors have the right to refuse activity that is likely to benefit them in money. It seems fair to me to make them opt out of such a process expressly.

I do not read Lessig to say that he prefers litigation - let the lawyers be paid, as fp suggests. He prefers that the law be clarified that what Google wants to do is fair use, because he thinks that the Internet will benefit and users of information will benefit if it is. He fears the temptation of Google, acting as a rational corporation, to compromise its rights to save money and hassle - thus at least not defending fair use, and possbily appearing to concede that its use is not "fair" in law, thus hampering other initiatives.

It seems to me that Lessig is on the side of the libraries and promotes the public concern, and is afraid that the private interest of Google will lead to something less. In short, he and fp are on the same side here.

johng writes: How is an author harmed in any way by GP? How is his or her market value lessened? How is his or her incentive to write and publish the next book lessened?

I can think of several things that might harm authors:

• As I previously mentioned, the author may be hurt if his material is inaccuratly represented due to OCR errors etc. in the Google scanning process.
• Some materials are damaged by exposing even the smallest "snippets". This includes things like directories of information, where simply the existence or non-existence of a search pattern tells you all you need to know. E.G. is "David Weinburger" present in "Who's Who in America"?
• The presence of an index can reduce the right of an author to index his own work. For example, suppose some day David wants to create "The Authoritative Index of the Writings of David Weinberger." He won't sell many copies after Google indexes his books.
• And what if something gets in the library that the author did not intend for the public? E.G. by some error, David Weinberger's personal diary ends up in the library.

I admit these are not earth-shaking examples. But it did not take me long to come up with them, and suppose there are more significant risks I have not thought of? Why is is up to the copyright-holders to predict all the possible ways they can be harmed?

And there definitely are bigger risks. One risk is that the massive body of information that Google is generating will "leak". For a few hundred dollars you can buy enough disk storage to hold the text of a million books. In a few years, Google's entire collection will fit on a keychain. Google is giving the information to university libraries. It will leak.

And after indexing, what else is Google, and a hundred other organizations who follow their lead, going to do with all this information? What kind of data mining will be applied to it in the future? This project, and those that will follow, will put massive amounts of power in the hands of corporations. Not all of them will be as well-intentioned as Google.

Fair use is a legal defense. It only means something when a judge has said something about it. Google and the publishers and authors may all claim to know the true nature of fair use, but it is only a judge who can say who is right.

That no system similar of that of robots.txt is in place for printed materials should perhaps teach us something. Apparently, web authors sought a technological method that relied on good will, instead of using the blunt method of litigation. Once again print authors disappoint.