Although it is being modified, in the interest of better informing students about the Google Books Settlement, Students for Free Culture has solicited the thoughts of a variety of experts who are providing guest posts reflecting on how the settlement will likely impact students.

In this guest post, James Grimmelmann of New York Law School discusses the effects on orphan works. Interested readers should also check out the upcoming D is for Digitize Conference being hosted by NYLS.

The most important, and perhaps least appreciated, part of the Google Book Search settlement is its effects on “orphan works.”  There are hundreds of thousands (perhaps millions) of books that are in copyright but whose owners can’t be found. Anyone who wants to reprint them faces a catch-22.   Since the owner is unknown, there’s no way to get permission.  But if the new publisher just goes ahead without permission, it faces liability of up to $150,000.  No one wants to take that risk, so the orphan stays out of print.

The result is that orphan works languish in obscurity, hard to find and hard to consult.  If you’re not at a rich university with a huge library, you’ll have a tough time getting your hands on them. The orphan works problem is the Bermuda Triangle of the copyright system, where these forgotten books are lost to culture.

The Google Book Search settlement’s most exciting, and most dangerous, effect is on these orphan works.  Under the settlement, Google gets a license to sell copies of out-of-print books unless the copyright owners object.  For orphans, by definition, the owners are highly unlikely to show up and object.  The result is that most orphan works become will available again, both for individual purchase and as a bulk subscription to universities and libraries.

The downside, from a free culture point of view, is that only Google will be able to provide access to the orphans.  Instead of individual authors deciding on what terms to make their books available, that power is concentrated in Google’s hands.  If the database becomes a “must-have” item for research libraries, schools will compete against each other to have it, driving up the price until, once again, only the richest univerities have access.  (This might still be an improvement over the status quo, which privileges students who attend schools whose libraries have physical copies.)  Centralization also magnifies issues of scan quality, bad metadata, reader privacy (PDF), and censorship (PDF). These issues are all much bigger concerns if one company controls the only corpus of orphan works and can dictate the terms on which it’s provided.

Ultimately, the biggest reason to worry about the Google Book Search settlement  is its effects on the rule of law.  The class-action lawsuit by which Google is attempting to gain these rights is a complex, tempermental affair that pushes at the limits of the law and benefits one company exclusively.  A small group of large publishers and a self-appointed cabal of authors claim to speak for all authors worldwide.  And it will be enormously difficult for any other book-scanners to replicate the legal machinations that produced the settlement.  All of these precedents are bad for the integrity of the legal system and for the bottom-up processes of creativity, negotiation, and exchange that characterize a vibrant culture.

If the orphan works problem for books had been solved by Congress, at least there’d have been a place for everyone’s voices in the legislative process.  As it was, the settlement was negotiated in secret between a few parties, and its fate will be determined by judges weighing legal arguments rather making law for the public good.  The settlement is likely to be an enormous net positive for readers, but this is no way to run a culture.

– James Grimmelmann

Previous Posts in this Series

• Introduction
• Derek Slater of Google
• Rebecca Jeschke of EFF

Although it is being modified, in the interest of better informing students about the Google Books Settlement, Students for Free Culture has solicited the thoughts of a variety of experts who are providing guest posts reflecting on how the settlement will likely impact students.

In this guest post, Rebecca Jeschke of Electronic Frontier Foundation discusses the implications for student privacy.

A college student’s first job is to open his or her mind to new ideas and ways of thinking, challenging personal beliefs and assumptions.  The process of intellectual discovery demands exploration into the different, the challenging, the absurd, and even the uncomfortable.  For many scholars, artists, and scientists, a rigorous look at a broad swath of ideas and theories is the foundation for a life’s work in pushing the boundaries of knowledge.

For anyone interested in this kind of intellectual journey, Google Book Search is an intoxicating idea.  The search giant’s plan to scan and digitize millions of books — and allow users to search for and read those books online — would open up the world’s libraries and bookstores to anyone with Internet access.  But without basic privacy protections, Google Book Search will never live up to its promise to change the way students and others read, research, and explore new ideas.  That’s because the “chilling effect” of Google’s tracking could stop these important journeys in their tracks.

Google will be able to monitor and track the books you browse, even knowing how long you spent on each page, and keep a permanent log of every book you’ve ever bought and what pages you’ve read.  When you purchase access to books, Google can use that information to grow its already long dossiers of Internet users — which is bad enough — but then all of that information is vulnerable to police, the government and other third parties who can seek it with a subpoena.

In the physical world, bookstores and libraries have fought for strong privacy protections, requiring the police to get a warrant before getting access to your reading records.  These strong positions were developed precisely to respect our private, personal relationship with reading and learning, and to block any “chilling effect” violating that privacy might have on Americans’ right to explore the world of ideas. That’s why Google Book Search needs a robust, enforceable privacy policy that gives readers as much privacy in online books as we already have today.

A legal settlement that would pave the way for Google Book Search to go forward without these privacy protections is pending approval from a New York federal district court.  But a group of more than two dozen authors and publishers, represented by the Electronic Frontier Foundation (EFF) and others, has filed an objection with the judge.  The coalition—including best-selling novelists Michael Chabon and Jonathan Lethem along with Anthony Romero of the ACLU and science fiction author Cory Doctorow—presents a list of privacy protections that would improve the settlement, including limiting tracking of users and  requiring a court order or judge-approved warrant before disclosure of the information collected, ensuring user control of personal information stored by Google, and making the system transparent to readers.

The future of books is electronic. Something like Google Book Search is what bookstores and libraries will likely look like going forward.  We can’t let reading privacy be the price we pay for opening the door to the world of knowledge.  You can learn more about the issues at stake here.  

– Rebecca Jeschke

Previous Posts in this Series

• Introduction
• Derek Slater of Google

Although it is being modified, in the interest of better informing students about the Google Books Settlement, Students for Free Culture has solicited the thoughts of a variety of experts who are providing guest posts reflecting on how the settlement will likely impact students.

In this guest post, Derek Slater of Google explains why the settlement is a boon for students and the democratization of culture.

Google Books and our proposed settlement agreement help fulfill copyright’s core objective — opening up access to knowledge and creativity. If approved by the Southern District Court of New York, the settlement will give anyone, anywhere in the U.S., access to millions of books that today are only accessible at a few large universities. Google Books can already help students and scholars track down hard-to-find books, and under this agreement they will be able to read many of those works online as well.

In this way, “[the settlement] will help tear down the geographic and socio-economic barriers that deprive many Americans of equal educational opportunities,” as the United States Students Association stated in a letter to the court. Numerous voices from the civil rights, disability, library and education communities, representing tens of millions of Americans, also strongly support the agreement because it will help equalize access to information.

You can find more specifics about the agreement and its benefits here, but these groups and individuals — the Leadership Conference on Civil Rights, National Federation for the Blind, National Association for Equal Opportunity in Higher Education, Professor Gregory Crane, and many more — explain the benefits to students better than I ever could.

I want to turn my attention to why Students for Free Culture in particular should care. SFC is among the leading voices for the born-digital generation when it comes to copyright. You have not simply pushed for legislation and hoped that Congress will eventually save the day. Instead, you’ve started campaigns to democratize culture at your own schools, and urged technology companies and content creators to build innovative, win-win solutions that meet users’ evolving values and expectations.

The settlement represents this sort of win-win, a practical way to address difficult problems. This case started when rightsholders sued Google for digitizing libraries’ collections. While Google fully believes that this is an example of fair use that would have been upheld in court (and the settlement does not compromise fair use in any way), we settled the lawsuits because it ensures greater access to out-of-print books and broad benefits for the reading public, libraries, rightsholders, and innovators. With strong privacy protections, users will be able to browse and buy digital copies of millions of books that otherwise might be left behind in the digital age.

For too long, copyright law and a thicket of legal uncertainties have locked up most out-of-print books. As copyright scholar Mark Lemley explains, the problem here is generally not that these books are “orphaned,” with rightsholders that cannot be found.  Instead, they have two findable parents – an author and a publisher – but sorting out who actually owns the rights may be hard. Because the transaction costs of licensing these books is high relative to their uncertain market value, these “neglected” works simply gather dust on libraries’ shelves.

The settlement not only enables Google to make out-of-print works accessible, but it will also make it much easier for anyone to license them. It establishes a non-profit Book Rights Registry that will actively look for rightsholders and can help resolve ownership disputes. As rightsholders come forward, the Registry will make information publicly available about which books have been claimed and by whom, and rightsholders can authorize the Registry to license third-parties, including Google’s competitors.  Over time, we believe a significant portion of books will be claimed.

Of course, a small fraction of books will remain truly orphaned. While these books will be among the least commercially valuable, there is still a strong public benefit in opening access to them, and the settlement is one step to that end.  In addition, as we said in our testimony to the House Judiciary Committee, we will let any other book retailer resell access to each out-of-print book, including orphans, that Google can provide access to under the settlement.

That said, this settlement is not a panacea for the challenge of orphan books or orphan works more generally. Google has long supported effective legislation that would make it easier for everyone to use orphan works, and this is still a top priority of ours.

Some have taken the well-intentioned position that legislative reform would be preferable to approval of the settlement. But, as David Sohn of the Center for Democracy of Technology discussed in a blogpost last week, this misconceives the settlement as a substitute for, rather than a complement to, legislation. And it would mean that these books remain locked up, as everyone waits for Congress to address not only orphans but also the far larger category of neglected books.

With the democratization of so much of our culture within reach, it would be tragic to turn the perfect into the enemy of the good.

– Derek Slater

Previous Posts in this Series

• Introduction

In the less than half a decade that it has existed, Google Book Search has been anything but boring. The service, that allows users to search millions of texts that Google has scanned, has revolutionized the digital information landscape. However, the viability of the service was challenged nearly immediately by authors and publishers who believed it infringed their copyright. Now, after nearly a year of commentary on the resulting settlement between Google and the Authors Guild/Association of American Publishers, the court has received nearly 400 submissions from the public that range from strong support to deep dissatisfaction.

The Google Book Search settlement runs hundreds of pages and can be confusing to the most expert of legal minds, but, in either its current or a modified form, it will have profound effects on how students around the world interact with knowledge. In the interest of better informing students about the settlement, Students for Free Culture has solicited the thoughts of a variety of experts who, over the coming days, will provide guest posts reflecting on how the settlement will likely impact students.

In the meantime, we encourage you to check out the official Google website explaining the settlement and the Public Index, an initiative of New York Law School that has an authoritative collection of information ranging from briefs to forums.

Stay tuned!

[Image Credit]

This past spring, Georgia State University was sued for copyright infringement by three massive academic publishing houses, Sage Press, Cambridge University Press and Oxford University Press. The case, which has received woefully little attention from the free culture arena, has a number of worrying implications for both universities, specifically, and fair use, in general. This Friday, I had the opportunity to attend a panel discussion at the Georgetown University Library regarding the case where Kenny Crews, Roger Skalbeck and Anthony Moretti discussed the case and it’s implications for higher education; here are some observations and commentary:

The Case at Hand

The lawsuit centers around Georgia State’s use of electronic reserves to make available digital copies of course readings. The case specifically approaches book chapters, though e-reserves are used at numerous universities for assigned readings of various types. By providing digital copies of course materials, students are able to access a wider range of information in the convenience that digital makes possible. While the publishers assert that Georgia State is part of a “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works,” the university claims that fair use clearly protects their policy.

As you may know, fair use permits the use of copyright “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It rests upon a fuzzy four factor test which will be the center of this case’s copyright dispute:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

As is evident in the statute, Congress wanted to give wide breadth to education, but the panelists at Friday’s event warned that nonprofit education, such as Georgia State, should not been seen as a “trump card” because a judge may weigh the other factors heavier than the first. So, although the first factor (in addition to the above quoted preamble) clearly support Georgia State’s use of multiple copies for education, the other factors will be addressed, as well.

Factors 3 and 4 will be the focus of the complainants. Although Georgia State is only using portions of the copyrighted works, the suit alleges that “In many cases, the distributed excerpts constitute the very heart of the work at issue.” Although a professor may only have posted a single chapter from a lengthy book, Harper & Row v. Nation Enterprises determined that if the used portion is “the heart of the work,” it can infringe, regardless of it’s length.

Finally, because course packs have been decreed a legitimate market, Georgia State is being accused of infringing that potential market of the publishers. However, for many courses, e-reserves are used because purchasing the numerous books used would be prohibitively high for many students. That is, the market doesn’t actually exist because students would be incapable of buying what is placed on e-reserve.

What’s At Stake; What To Do

Because Georgia State qualifies for soveriegn immunity, a lawsuit would only seek injunctive relief instead of damages. The implication is that e-reserves and fair use would be severely limited as a legal fact, even if Georgia State did not have to pay anything in response. In the words of Duke’s Kevin Smith,

“this is an attempt to enforce judicially a “pay-per-use” model of content distribution. The real irony is that it is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.”

The pay-per-use model is another example of the publishers seeking to grab more value from universities. Libraries spend millions of dollars purchasing and licensing material from academic publishers. In a physical world, the first-sale doctrine (through library lending and resale) mitigate “pay-per-use” but in a digital world of ubiquitous copying, the publishers want to squeeze more money out of schools.

So what can we do? Here are some ideas, but feel free to add yours in the comments:

1. Educate yourself and school. Raise awareness about fair use and its importance to scholarship and education on campus. Both faculty and students should learn about copyright and fair use. All universities have policies relating to faculty fair use and copyright; what’s yours? Georgia State says that no more than 20% should be used, but what is your school’s policy?
2. Encourage permissive options like public domain and Creative Commons. Faculty and administration need not worry about copyright lawsuits if they are using documents, images and video that is freely available without payment.
3. Support open educational resources. Encourage faculty to publish their work in open access journals. The fewer copyright bullies to sue universities, the fewer chilling effects on education. Open access is the (legal) offense against lawsuits like this one.
4. Get creative: Harvard’s Free Culture chapter created the Thesis Repository to both raise awareness about and quantity of open access scholarship.

As Students for Free Culture embarks upon an ambitious project to open up institutions of higher education, we should keep in mind that universities, and especially their libraries, tend to agree with the principles of access to information, scholarly sharing and creativity. However, they are often held back by actors such as Sage Press who seek to bottle up knowledge. As students we have an important role to play in educating about and assisting the creation of a free culture at universities.

Well, crap, guys. How did we let this one slip by?

HR 4137, the College Opportunity and Affordability Act just passed Congress and is expected to be signed into law very soon.

Inside the bill is the Campus-Based Digital Theft Prevention act, a provision which requires colleges to subscribe to RIAA-approved services like the new Napster and to install software on the network which monitors and interrupt transfers which they decide they don’t like. This is a mandate for a non-neutral internet on college campuses. Students are being targeted by a cooperation between the government and the intellectual property industry to spy on us, filter our internet and the resources of our schools by spending our tuition costs on their DRM’d service. And unfortunately, we let this slip under the radar.

For the full story about the passing is available on Ars Technica, who have done a better write up than I could do. I also wrote about this on my personal site just over one year ago. It seems the bill has been watered down slightly from the original amendment, but the effect is the same.

But where was the opposition from Free Culture? I’m not trying to blame anyone but myself, but I think that we must develop a way to constantly monitor and publicly oppose this type of legislation. Otherwise, what is the point of our organization if we continue to allow things like this to happen?! We’re going to be an absolute laughing stock if we have silly events which celebrate the death of DRM when we don’t make a sound about federal legislation which requires all of our schools to purchase products which use it. There was only one blog post about the bill, 8 months ago. Not a peep since then, no page on the front page about pending legislation. So I can’t say that we missed this entirely, but a single blog post doesn’t affect anything outside of our own community, which is where the problem lies. It isn’t working because it isn’t enough.

So what are we supposed to do in the meantime?

First, I think we should develop a page (perhaps on the wiki?) and a squad to monitor the progress of legislation which could be a threat to us.

Second, we should be supporting Lawrence Lessig’s Change-Congress Movement which will stop corporations from having so much influence over Congressmen. Particularly Democratic congressmen from California.

Third, I would personally recommend that any student should be using secure protocols for all of their data transfers to prevent their being snooped on and tampered with. One such upcoming protocol is Anomos, a secure and anonymous multi-peer-to-peer file distribution platform. I’m a lead developer on this project and I will write a post on this blog about it once our alpha release candidate is announced.

Does anybody else have any ideas about steps we can take from things like this going unnoticed again? Let’s gets some discussion going in the comments.

Rich, Boston University Free Culture

I’m new to the fold, representing FreeCulture.org up in the, as Gavin and Nelson quickly discovered, still chilly city of Madison, Wisconsin. Nelson just cleared me for Blog take-off and gave me a few questions to kick things off with, so here I go!

~That’s me on the far left in the picture below~

Q: How did you get into free culture in the first place? What made you want to start a chapter?

I got interested in free culture issues long before i knew that an organization like this even existed. In 2004 I was taking a class at App State in North Carolina (my undergrad Alma Mater) called Art & Ideas that examined some of the philosophical questions pertaining to the art world. It was around this time that Dangermouse’s Grey Album came out, and i ended up framing my final paper for the class around the fair use issues that the work brought up. From there, i discovered the long-dormant illegal-art.org, John Oswald, Negativland, Fensler Films (the fine gentleman who brought us the GI JOE PSAs) and so many other mash-up artists that were creating new and challenging derivative works from the copyrighted flotsam and jetsam of pop culture. From there, i got interested in sampling laws which ended with me falling in love with hip-hop culture. I eventually wrote my undergrad thesis on the roots of that very culture, making sure to comment in the ways that DJs are recontextualizing old works for new ears.

Last month, the U.S. chapters called our representatives to let them know about a flaw in H.R. 4137 and H.R.3746, two important education bills. We let people know that in its current form, the proposed legislation to renew the Higher Education Act of 1965 includes provisions that could unnecessarily burden networked computing in academic institutions. Despite our best efforts, however, the bills made it out of committee with the troubling language intact.

To emphasize our concern, we have drafted a Students for Free Culture Open Response to H.R. 4137 and H.R. 3746 that outlines the weaknesses embedded in the bills as written. Please take a moment to read the letter and share your thoughts in the comments section of this blog post. Please share it with your fellow students. We’d love to add more chapters to the list of supporters!

In addition, the XHTML/CSS version of the open response was designed very minimally so that you can easily adapt it to the needs on your campus. Perhaps you might re-use some of the text for an article in the newspaper? Perhaps it might provide the foundation for a letter to your administration?

There is still time to ensure that Higher Education Act is renewed without language that could hinder the use of technology on college campuses in the U.S.