Imminent Domain over Intellectual Property?

by Sid Steward

Related link: http://radar.oreilly.com/archives/2005/10/it_seems_to_be_working_for_jes.html



Reading Tim's post today got me thinking and raised some questions. I love the idea of searching the full text of books, but I wonder about Google's execution on Google Print Library.



Opt-In vs. Opt-Out



Tim says: "(publishers) no longer even know if they own the rights to be able to opt in." Then: "Google's opt out approach is the only way to cut the Gordian knot of forgotten rights and permissions." To understand this, I had to dwell on exactly what opt-in and opt-out means, here.



Opt-in versus opt-out almost sounds like a silly technicality. In fact, the important issues are the assumptions behind these terms. "Opt-in" means that Google can't index works without publishers' permissions. "Opt-out" means that Google can index any books it wants under fair use. The opting-out part is just a courtesy extended by Google to publishers. And "Opt-out" sounds better than "SOL."



After figuring this out, I understood Tim's position better. Under the opt-in assumptions, he argues that even publishers sometimes have their hands tied. Under the opt-out assumptions, publishers, Google, and most anybody could index, well, anything they wanted.



I can also see how this battle is bigger than books. Copyrighted magazines, newspapers, audio and video would be open for indexing under these "opt-out" assumptions. And hold the opting-out part -- that was just a temporary courtesy designed to lull publishers into a sense of control.



Where's the Money?



As to why publishers are tussling with Google, egos and precedents might be involved, but we mustn't overlook money. Google wouldn't bother with this project if it wasn't valuable to them somehow -- remember, they must answer to their shareholders. Publishers probably want a piece of that action, and there's nothing wrong with that. Google probably doesn't want to pay them, so they pay lawyers instead.



Tim notes: "The works that are most in question are those that are likely unavailable except in libraries or used bookshops." If that is so, then how could a publisher make money by allowing users to search books it can't sell? The publisher asks: "where's the money?" It must come from Google, since it won't come from selling such books.



Imminent Domain for Intellectual Property?



Rights aside, there seems to be an interesting, underlying debate over the value of old, out of print, inaccessible books. Some seem to suggest they have no value since they are inaccessible. If they have no value, then why should Google want to index them? Because Google can unlock the value and turn it into profit. That's good.



If it has potential for value, maybe Google should just pay the publishers fair value? Or maybe even allow publishers to share the risk and profit of this endeavor somehow? Such a move would fall on the better side of the good/evil spectrum.



OTOH, that could set a bad precedent for Google. When they go to index magazines, newspapers, video and audio, then all those publishers will want a piece of the action, too.



Disclaimer and Invitation



I must admit I haven't followed the Google Print Library drama blow-by-blow, so some of my premises might be off. Please feel free to correct me.


1/30/06 Update


I cleaned this up a little, so the 'imminent domain' comments to this post now appear out of context.


4 Comments

FeltzCRM
2005-10-21 11:25:21
Google isn't the Government!
Only governments can exercise imminent domain, recent Supreme Court judgements not-withstanding. There are plenty of problems with intellectual property law that have been created or cropped up in the last 20 years, but let's not make Google the stalking horse to get them fixed.
sid_steward
2005-10-21 12:31:24
Google isn't the Government!
Recent judgements (http://lookleap.com/washingtonpost.com/a10) are certainly relevant. At least when the government takes property from an owner so the developer can profit, the owner receives fair value.


Google wants to take publishers' straw to spin into gold, and not even pay for the straw.


Fair use debate aside, wouldn't it be nice for Google to compensate publishers? But then perhaps publishers want too much.

jonblock
2005-10-21 13:57:46
Minor Clarification
The comment at the end of your post suggests that one clarification is relevant: Google Print and Google Library are different (though possibly related) beasts.


One allows access to the full text of out-of-copyright works, while the other allows searches of all works. The search result shows maybe two dozen words. If the work is included in the other system, a link will take you to the text. Otherwise, you're wiser for knowing the work is out there, and perhaps you can get additional information to find the full work yourself (for sale or in a library).


The fight is over the second system, which involves scanning entire copyrighted works, even though those works are not displayed in anything near their entirety to the consumers of the system. If I read it correctly, Tim and Google maintain that the owners of the vast majority of copyrights are difficult or impossible to track down, while the publishers are basically saying, "So what? The copyrights exist, and you don't have the right to ignore them without explicit permission."


Or so I've learned from Tim's previous posts on the issue.

sid_steward
2005-10-21 14:19:23
Minor Clarification
Thanks for this important clarification and valuable backgrounder.