Tuesday, July 29, 2008

google's problem with permission

Here and elsewhere, I've commented on the Google Books project, which caused some controversy and hurt feelings among the writing and publishing crowd way back in the digital yonder, all of two years or so ago. In the interest of freedom, or posterity, or something (because it couldn't have been profit) the search engine giant Google made some quick deals with some libraries, invented a page turning scanning device and proceeded to digitize every book they could get their all-consuming hands on. The discussion about copyright and permissions -- who owns what and who gets to do what with it -- seemed to come after the scanning began, and after Google Books was already established as an online feature. If you haven't seen it yet (is that possible?) go look now and discover literal tonnes of literature, free for the browsing and online reading, courtesy your benevolent friends at Google.

Why were writers and publishers upset about this amazing feature? Lots of good reasons, most of which have been retroactively worked out with lawyers talking to lawyers. It's my understanding that books still protected by copyright cannot be fully accessed through Google unless the copyright owner has given permission, though Google still scans protected books and maintains a digital file that is searchable within limits. This is a working concession to those who really should be viewed as Google's partners in their global library project. Of course, real partners are generally consulted before their stuff is grabbed and used -- which is the issue at the heart of the Google Books controversy.

Why didn't Google talk to writers and publishers before they started scanning? Why weren't these necessary partners brought into the project before lawyers started e-mailing lawyers? If the goal really is a free global library for the benefit of all, shouldn't the writers and publishers of the collection be involved? And it's probably important to remind ourselves that Google is a for-profit company, one of the most profitable for-profits out there. They can certainly afford to sit down and talk things out ahead of time, maybe even work out a deal for permissions.

On the other hand, it's a brave new digital world, and those seeking to be consulted when their stuff is used commercially can expect to be made fun of. Buggy whip manufacturers, blah, blah, blah.

Recently, I Google Mapped a friend's address in preparation for a trip. This friend lives in the United States, so instead of just the usual map and satellite imagery, I was also treated to Google Street View, a 360 degree(ish) photographic view of my friend's house and neighbourhood. I could see the post-office truck parked outside the house; I could see a neighbour walking by on the street. I could zoom in, check out car makes and models. I e-mailed my friend to let her know, and her first response was -- "My garden looks so much better now. I hate this thing. Creepy."

After a quick bit of googling, I discovered that lots of people are uncomfortable with the idea that Google has sent little cars with cameras on top of them to prowl their streets and take detailed shots of their private places. Strange that. Hey why is that car in my driveway in the middle of the day?

Does anyone remember getting a nice letter from Google saying they'd be sending their spy-car around the neighbourhood? I mean, I know this is the kind of universe-saving technology humanity has been waiting for forever (and we should all thank the great Google for their free gift of Street View), but shouldn't there at least be a conversation before the camera cars go out?


John McFetridge said...

Didn't you get the memo, Google are the good guys. Don't let that board of directors fool you, there's no conflict of interest anywhere in sight...

My favourite from the GeoImmersive site is under "Possible Applications," of the service:

"From pre-event planning to live analysis to debriefing, GeoImmersive video can be utilized in a wide range of safety and security applications including:

Crisis management and response planning

Training scenarios and simulation

Pre & post-crisis site evaluations

Live event monitoring and crowd control

Evacuation strategy."

It's a good thing I'm not in the least paranoid.

Infringer said...

Hi John. So how's the development of that shaggy dog hair buggy whip coming anyway?

It is very interesting how you can link two very different issues together in one blog entry. The privacy issue in Google's street view is completely different from the copyright issue in Google Books. The commonality between the two appears to simply be your belief that Google should have been sending out permission letters in both cases.

So, "Why didn't Google talk to writers and publishers before they started scanning?" you ask.

Well first they contend what they are doing is fair use. Fair use basically means that they don't have to get anybodies permission. That is the purpose of fair use. I have stated many times that the breadth of fair use needs to be much better defined in law. Doing so would reduce the number of instances one person says an activity is fair use and another says it isn't and the two end up fighting it out in court to see who was right.

Second. Very interesting number are in that NewYorker article you link too. 20% of all books are in the public domain. 10% of all books are protected by copyright and in print. That leaves 70% of all books "protected by copyright, or of uncertain status, and out of print." That 'uncertain status' one certainly would make seeking permission rather difficult. Changing copyright law to basically remove copyright for unlocatable authors would be a terrific amendment.

It is also interesting to note the common feature the birth of this technology has to the beginning of prerecorded music, radio, cable tv, and VCRs. In all cases these technologies were accused of being copyright infringers. In all cases the content producers in the end came out much better off.

Also keep in mind that Google is treating books exactly like they treat web pages. They cache the entire thing for searching and they return small snipits to the searchers. Publishers in both cases have the ability to opt out if they want too. My question back to you is, if this system is considered fair use on the Web as most people would concur, then why should the exact same handling of the content not also be fair use in the book world? Is there any applicable clause in copyright law that treats these two mediums differently?

Gotta run, have a busy day ahead, but I'm sure I've left enough material here for you to take a lot of pot shots at me. So have fun, and I'll check in again tonight.

John said...

That's what I appreciate about you McF -- you see where a conversation is going and you add value to it by applying a working intellect. You don't just ride the same hobby horse into every discussion and drop its tired old road apples about.

I actually like a lot of what Google is up to -- its plans and projects. Who wouldn't want a universal library? I just think Google's methods need some tweaking.

Google tends to act like some kind of frontier mining conglomerate, taking whatever it wants, and only asking for permission retroactively. I mean, I guess that spirit is what made America great and all, but...

Interesting side note -- I google-mapped a very rich neighbourhood outside of Detroit and there were no Street Views available. I wanted to see what Eminem's house looks like but, for some reason I can't figure out, I'm not allowed to. I hope Google works that out soon.

The real issue, of course, is whether or not I will be able to get Street View on my iPhone here in Canada... because if I can't, I am going to throw such a fit at some MP's constituency office.

John McFetridge said...

You're right John, if that iPhone doesn't do everything it does in the "evil" America... (I keep forgetting, do we want to be the 51st State or not?)

I have to say, I'm really surprised by the attitude of the sci-fi geeks in all this. I guess we can call it the victory of Asimov and Heinlien and the defeat of Huxley and Orwell. I can see the flaws in C-61, they're worth talking about sure, but this blind faith in technology and "some" multinationals to be the good guys is just weird.

The buggy whip argument is too silly for adults to take part in. Certainly anyone who's ever taken a single course in economics or read the tiniest bit of history.

But the old west analogy, as far as analogies go, can work a little. Yes, mining companies, but it's also like the Oklahoma land rush.

First you win the Indian Wars and get rid of those pesky "squatters," (copyright holders) then move in a lot of "right-minded" people (consumers who don't care about anything but their "right" to own the fancy new gadget).

Then, when the land is all taken up, the fences come in and things tighten up.

The technology is still in its expansion phase, but the guys who own it - those guys have a long-range plan and vast amounts of capital. I wish people wouldn't be bought off so easily.

'Cause Darryl, if you think Google's objective is to make available some long-lost gems of literature, I think you're focusing too much on past works and not what Google's shareholders want to do in the future.

Infringer said...

JohnMcF, if you the old west analogy appeals to you then you might apreaciate this article. File-sharing and property rights.

It has a very different take on the popular "real property" / copyright analogy that is usually employed by the copyright maximalists.

I think you are mistaken about most geeks views of Google, and I think most geeks would be just as harsh criticizing Google if they abused their virtual monopoly as they are with any of the other multinationals.

As for me. I certainly don't expect Google to make anything available to me themselves. Believe it or not, I do still support copyright as a concept. Just not that bastard child we currently are having to deal with. I do expect Google to make it easier to find what I want though.

John McFetridge said...

Okay, I'll check out the article.

"... would be just as harsh criticizing Google if they abused their virtual monopoly as they are with any of the other multinationals."

What surprises me is the lack of vision for where this could go. I never thought of sci-fi folks as having so little ability to imagine what going down this road could lead to.

By the time Google - with its total monopoly and the same shareholders and board of directors as other multi-nationals, starts to tighten up and abuse that monopoly it'll be too late and the geeks will have done nothing but empower the monopoly.

Because, you know, asking people to boycott Google would just be silly.

John McFetridge said...

Sorry, the article has far too much agenda but isn't being totally honest.

"As Mike Masnick has noted, once an information good has been produced, it can be reproduced an unlimited number of times without diminishing its value."

I don't know who these people are, but I only did one year of economics at university and even I know that the value is increased or decreased not by the production of something, but by the acquisition. If no one has to pay to acquire something, its value is zero, whether there's one copy or millions of copies.

Van Gogh's Sunflowers isn't worth millions because there's only one copy of it - it's worth that much because people are willing to pay that much to acquire it. There are hundreds of thousands of unique, original, only-one-exists paintings that no one want to acquire so they have no value. Warehouses full of copies make no difference if there are no customers.

This denial that money changes hands in the acquisition of files is childish.

"The American colonies, in contrast, had an abundance of land but poorly-defined boundaries and inadequate record-keeping."

An abundance compared to England, maybe, but not limitless. And there were still those pesky Indians who actually had quite well-defined boundaries. Just not enough guns.

Now you're right, it would be great to get this stuff settled so we aren't left with the same sad legacy from this "property rights" battle - widespread racism and guns in every home to "protect" ourselves from the government (which is by now so powerless that I still say we should be more concerned about Google, but maybe I am just paranoid - and I've seen what their directors have done with other companies they've controlled).

"Customers wanting to rip their DVD collections to their computers, download music they can play on any device, or incorporate copyrighted works into original creative works find that there is no straightforward, legal way to do these things."

Once again, the denial as to why we have this situation is silly. I say again and again, when I first bought CD's in the early 80's I could copy them to every device I owned. But everyone involved knew that putting the file online and allowing an infinite number of strangers to acquire it was wrong. I must have said, oh hundreds of times in my life, "But you know this is wrong," and people would say, "I'm only ripping off the record companies, they're bad anyway," and I'd say, "Okay but you know this won't go on forever," and people always said then, as they say now, "I don't care."

Well, now they care, but frankly, they made their beds...

"But the emergence of the Internet and other digital technologies have brought the technologies of wide-scale content creation and distribution to the masses."

Right, and if they just creat and dsistribute their own material, there is no problem.

But they want to piggy-back on the work of others without recognizing - or as JohnD would say, respecting, them.

You're never going to convince me, Darryl, that this is anything more than, "I want stuff and I don't want to pay for it." Either acquiring produced stuff, or using it, saying your work was "Co-written with John Cage," to attatch yourself to his body of work without doing the work yourself. It's justifications and excuses, it's nudge-nudge, wink-wink, know what I mean. And this argument that the big bad companies and the government made it too complicated for me? Come on.

You know, part of my problem here is that I'm a professional so I don't understand the need to access other people's already created art. I have no desire to write fan fic (though I do see it as a useful tool to learn how to write, there's just no reason to show it to anyone but your closest friends). I'm more interested in creating my own work - as all artists are. Of course, there are some historical works that get updated - I actually liked the movie "Bridget Jones Diary" even though it was simply an updating of Jane Austen. It's this desire to use the artwork created last week that causes the problems because the geeks all want to make their own Lord of the Rings movies and like all kids today, they've never heard the word 'no.'

"If copyrights are a form of property right, then the history of American property rights provides clues about how the copyright system will need to evolve in the future. It suggests that Congress's current strategy of imposing ever more draconian penalties for breaking laws that lack broad public support is a recipe for failure. Congress may be forced to concede, as it did two centuries ago, that property law must accommodate the actions of ordinary Americans, and not the other way around."

This would be a much better argument if you could still squat on land and then later own it. The "concession" Congress made was to like-minded white protestants. Period. Not the best model to follow.

But, in fact, that's exactly what Google is doing, they're squatting on all this material and eventually they'll just own it - well not "own" it in the legal sense, just be the only gateway to access it. They won't restrict it in any way - other than by price, just like current copyright owners. Maybe price-fixing, there's a lot of collusion in capitalism. But this way the "law" will seem to have broad public appeal and the result will be the same.

And probably, even that little bit of copyright you say you support will disappear. Be careful what you wish for, you might just get it.

John McFetridge said...

Here, this might be fun. Now that it looks like online advertising is starting to top out:


let's start an office pool about when Google starts a "Google Gold Premium Service," you have to pay for.

I remember when the imdb was free, when most sites were free before they all went corporate.

John said...

"Sorry, the article has far too much agenda but isn't being totally honest."

McF -- standard practice as far as I can tell. I'm not advocating one way or the other; I'm just interested in getting at the truth of the matter. So, why is it greedy artists and American corporations want to enslave Canada, anyway?

My analogies will always be wrong, but the buggy whip analogy is perpetually fresh. Of course, I'm expected to assume the role of obsolete product manufacturer even as my product is more and more in demand; whereas I just think Google acts somewhat like frontier mining companies of old. I don't expect they'll actually be evicting native populations with violent force; but I am expected to go the way of the BWM.

Russell McOrmond said...

(sorry for being late, but I don't have a chance to read John's blog as often as I would like).

John McFetridge said...

"You're never going to convince me, Darryl, that this is anything more than, "I want stuff and I don't want to pay for it.""

EOD -- or should I just say "Hitler"


In the case of Google Books, this is something where asking forgiveness and moving forward is far more easy than asking permission. The rhetoric I see from publishers (as opposed to authors, even if nobody here wants to admit the perspectives are sometimes different) isn't all that different than what was seen hundreds of years ago from music composers talking about the evils of equipment capable of recording performances of music (Ya, we'll lose our vocal cords).

Sorry if you think my bringing up history somehow makes this into a buggy whip analogy..

I happen to be a fan of neighbouring rights (relatively recent rights for performers and makers of sound recordings), and I think the fact that we no longer have a compulsory license on composers in Canada indicates that these things work themselves out in the end. But we needed to do things that we weren't granted permission to do in order to create these rights in the first place!

Sometimes using a compulsory license and denying the ability of an incumbent copyright holder to say no to a socially beneficial use is the only temporary solution to get past a problem.

Google needed to do what they did to push the issue forward. Politicians won't believe that publishers would refuse to license their works until such a system is set up and we can all observe that refusal.

Everyone can now see the visible fight from some against the very existance of google books -- maybe this time we'll lose our eyes rather than just our vocal cords -- or is it our hands from not turning pages? I can never quite tell with these things which body part is allegedly under attack when the demands of incumbent copyright holders aren't being obeyed.

John McFetridge said...

"In the case of Google Books, this is something where asking forgiveness and moving forward is far more easy than asking permission. The rhetoric I see from publishers (as opposed to authors, even if nobody here wants to admit the perspectives are sometimes different)..."

Oh, I think most authors will admit that their perspective and their publisher's perspective isn't 100% aligned. But there's enough common ground that they can have a relationship.

It's that kind of common ground we're looking for with Google and with all online transactions - not a perfect relationship, but some common ground. It's always up to us to give forgiveness (and imagine if we don't?), never the other way around...

The problem as we move forward is that Google itself isn't what it was when it started this and we don't know for sure where it's headed. We know it now has a lot of shareholders who are also shareholders in other companies and a board of directors made up of members of other boards of directors and we've seen what they've done with their other companies so it's natural for us to think that some of those business models will be followed somday.

Capitalism is opportunism. It moves through stages. What we're going through now is, "denying the ability of an incumbent copyright holder to say no to a socially beneficial use," and we don't really know where it's going to lead.

The problem with the historical analogies is that people have, in fact, learned from them. Maybe this will be the dawning of a brave new world of access for everyone - or maybe this is just a transfer of ownership from one board of directors to another. Maybe this one will do no evil. Maybe not, we'll see.