Archive for October, 2008

The Importance of Registries

October 31, 2008 Comments off

The Google Books case looks like it’s on its way to a settlement for a $125 million “payment”, $34.5 million of which it appears that Google is going to pay to itself to build a “registry”, and $45 million of which is a damages payment for the books that were infringed.

I don’t have a final count on how many works Google took for its “library” project, but if it were 1 million, that’s $45 per infringement.


A few other thoughts come to mind immediately.

When people talk about a copyright “registry”, that sounds like a place where any retailer could come to access digital copies of works, find out if the copyright owner wanted the work exploited and on what (wholesale) terms, and then pay the registry whatever the wholesale price was as the works were exploited.

Any retailer.


But that’s not what’s happening here. What is happening is that Google has pressed forward with its extraordinarily unpopular Google Books/Print/Library project (see, e.g., Google and the Myth of Universal Knowledge) scanned millions of books (many scans being of poor quality) and put a gun to the head of authors.

Will Amazon or other retailers be able to use the registry? Will it support DRM for Kindle, e.g.? Apparently not–this appears to be a Google-only registry. Google will not make the scanned books available to any other retailer.

So what is this “registry” exactly? It is a tool for authors and publishers to deal with Google. And only Google. Since Google has done nothing but try to assault rightsholders from its inception, it is hard to believe that this is where it ends. I assume that there will be at least as much foot dragging on building this registry as there was with the YouTube registry which is still rather anemic.

When a registry is initialized, the operator has to make some choices, such as the default switch for titles for which the owner has not come forward (for whatever reason). Is the default for any title that Google has already scanned illegally “opt out”? Meaning they can’t use the book until the author and publisher opt in to the registry?What territories are covered? This surely must be a US-only deal. Will the Registry keep track of all commercial rights, including territories and use geoblocking to keep the works from being exploited outside of cleared territories? The international book publishers are strangely silent about the deal. Could it be they were not consulted?

This registry will take some time to build (at least two years I would imagine), what happens in the meantime? Is Google prohibited from continuing to exploit Google Books?

And most importantly, perhaps–Is the settlement going to stay the litigation and toll the running of the statute of limitations provided the registry is launched on time and on budget? Does the lawsuit continue if Google fails to develop the registry?

Alrighty then. How about that Registry?

“The Registry will be a not-for-profit entity, and all funds received by the Registry will be for the benefit of Rightsholders… The Registry will be funded at first by Google’s $34.5 million payment (net of notice and claims administration expenses)…” Net of “notice” expenses. I wonder what “notice” expenses these are. DMCA notices perhaps? That will be an interesting item.

“Thereafter, the Registry will be funded by an administrative fee taken as a percentage of Rightsholders’ revenues…The Registry will have a Board of Directors composed at all times of an equal number of Author Sub-Class and Publisher Sub-Class representatives…The $34.5 million settlement payment by Google will also fund the costs of class notice, and of settlement administration until the Registry is fully operational….”

Wait, wait, don’t tell me—from the Wall Street Journal we find that:

“WSJ: Is establishing a registry for rights holders a model that Google thinks it can replicate in other areas of digital media, like video?

Brin: “Very much so. In fact, with video and our fingerprinting technology, we are essentially building the registry. We have a number of big media companies that send us their raw video files and we fingerprint that and we can attribute those videos to them.”

Now that sounds to me like Google is going to build and maintain the Registry (and presumably own the contents of the Registry) because according to the settlement document “The Registry will set up and maintain a database of Rightsholders’ contact information and information regarding Rightsholders’ Books and Inserts.” That doesn’t say anything about owning anything. We are told that “Google’s and the Participating Libraries’ authorizations under the Settlement are not transfers of copyright ownership to any Books or Inserts, and nothing in the Settlement Agreement shall operate to transfer any copyright ownership interests in any Books or Inserts.” This is pretty standard stuff and what you would expect.

Now admittedly there is no true database right in the US, but there is in other countries. There’s also other ways to get at protecting proprietary information that you would think a bunch of Harvard folks could come up with. But then I’m just a country lawyer from Texas and I’m not as smart as these city fellers.

So the way I read this settlement proposal is that Google’s going to toss the authors some share of $45 a pop and then pay itself to develop a Registry that it will use largely for its own benefit. I don’t think that the settlement ever says that the Registry could turn around and do the same deal with Amazon.

And here’s why registries are important. There are people out there (dedicated followers of Lessig) who like the idea of registries a lot. Let’s call them the “registrationistas”. The registrationistas want us to head toward a system where if you don’t register you lose your rights and your work goes into the public domain for the good of the “commons” (where you have to register is a moving target, but somewhere, and preferably somewhere controlled by you know who).

In a networked world, however, any registry controlled by Google (and if they build it, they will essentially control it) will be a different beast than a government registry (such as the Copyright Office), but it is a de facto registry nonetheless and sanctioned by the government through a judicial order in this case. Such registries are arguably prohibited by international law—however, registrationistas argue that there is no government requirement for a registry so it doesn’t violate the Berne Convention and many other treaty obligations.

However, as such registries develop, it will be increasingly easier for judges, particularly federal judges sitting in San Jose, California, to be able to side with the registrationistas and rule that a low cost alternative was available to a plaintiff instead of suing for copyright infringement—just register your work and take the king’s shilling. Although the settlement agreement contemplates authors being able to withdraw their works and block exploitation, my guess is that is going to be about as easy as cancelling an account on Facebook.

Once again, we see an extraordinarily US-centric view of the world of copyright being foisted onto the international creative community. There is a world where they don’t have breakfast at Buck’s you know.

Google’s Bad Advice Redux

October 16, 2008 Comments off

It will come as a surprise to no one that Google has lost yet another copyright case outside of Northern California: Google Loses German Copyright Lawsuits

The Europeans take their artists cand culture very seriously and understand that art doesn’t scale (See Book Review: Google and the Myth of Universal Knowledge). As noted in Jim Delong’s fine piece, Google the Destroyer, at its core, Google is about hyper commercialization and the commoditization of everything that touches its network. It wants to drive prices (also known as artist royalties) down, down, down preferably to zero. This means that it will take as much as it can without paying anything, and in situations where it cannot avoid paying something, will pay only when forced to pay.

This also means that only those able to fund lawsuits ultimately will survive against Google. For every artist who sues Google succesfully, there are likely hundreds of thousands who do not have the means to sue and who may or may not benefit from those who do.

Google also takes the long-term view on these issues, so they are happy to sue and be sued and get away with paying nothing or delay payment for as long as possible in the hopes that they will luck into making some law that benefits them.

This is all done under the guise of benefiting “Internet users”–who also are citizens of their societies whose laws protect artists.

So which will it be? The 10 year old Leviathan of Mountain View crushing everyone in its path or national artists in some of the oldest societies.

EXIF and Beyond podcast/Photographers Discuss Orphan Works Legislation

October 10, 2008 Comments off

Photographer Jim Goldstein has an excellent podcast on orphan works that discusses how the Senate bill was passed during the Presidential debates while the Senate was supposed to be passing the “bail out bill” (and that has worked out sooooo well). What’s great about this podcast is that it is artists talking about issues of importance to artists, with no spin from Google’s surrogates.

Excellent article by Professor Ginsburg

October 8, 2008 Comments off

While I’m a bit late to the party on this one, Professor Jane Ginsburg of the Columbia Law School has posted an excellent article on orphan works which is, I think, pretty consistent on some points with my own view of the true exposure to America created by the current orphan works legislation:

“An orphan works regime must therefore aim to make works more widely available by reducing the exploiter’s risk with respect to truly “orphaned” works while avoiding the other extreme of thrusting “orphanage” upon works whose right holders can in fact be found. The solution adopted must also be consistent with international obligations under the Berne Convention and the TRIPs Accord. For the United States, this means that orphan works legislation should not occasion back door reimposition of formalities that condition the “enjoyment or exercise” of copyright….

An additional Berne/TRIPs constraint concerns unpublished works. Article 9.2 of the Berne Convention authorizes member states to provide exceptions and limitations to the reproduction right “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” This provision does not explicitly exclude unpublished works from the range of permissible exceptions, but the “legitimate interests of the author” almost certainly include the interest in determining whether her work shall be publicly disclosed. Berne Conv. article 10.1 supports this interpretation, because it limits the quotation right to “a work which has already been lawfully made available to the public.” It is difficult to imagine how the nonconsensual general disclosure of a living author’s work would not “unreasonably prejudice” her legitimate interest.” (see text accompanying notes 12-14)

As a wise Member of Congress once told me in explaining why he was very careful about IP legislation, it is unwise to impose laws that have an effect on foreign copyright owners because it begins to undermine our ability to enforce our own IP laws in other countries.

See Fairness in Music Licensing Act arbitration at the WTO.

Racetracks, rum, sheep, wooden arrows and the Austin Yam Jam

October 6, 2008 Comments off

Here’s something that the wooden arrow crowd in Washington probably would never think of—independent artists quietly coming together to help feed a whole bunch of people in their community. This time it’s Central Texas, and in particular Austin.

Operation Turkey started in 2000 with one guy giving one Thanksgiving dinner to one family in need. Austinite Richard Bagdonas started Operation Turkey eight years ago with one dinner, and the organization has grown to 13 cities across the country, mostly in Texas but also in California, South Dakota and Virginia.

One of the principle ways that Operation Turkey raises money in Austin is from the Yam Jam, a concert featuring local artists. One of the ways that the now dozens of turkeys are distributed is through artists donating the use of their equipment vans.

Artists and musicians always seem to have time for feeding people who fall through the Washington “safety net” despite the fact—and it is a fact—that Washington has completely and fatally failed to protect American artists from the greatest onslaught against creativity since Galileo was imprisoned by the Roman Inquisition.

We’ve already had our depression, now we get to have another. Must be nice to have tenure or a safe seat or a job with someone who has tenure or a safe seat.

Now ya’ll inside the Beltway folk think about that while you’re screwing artists. You two Gulfstream families can just waggle your wings.

And don’t take any wooden arrows.

In Cyberspace, No One Knows You’re a Highly Decorated Dog

October 1, 2008 Comments off

Another must-read, hilarious bark-cleaner from Andrew Orlowski: The Great Circular Award Ceremony.

“In recent years the EFF has found an ingenious solution to the task of finding new pioneers – by simply giving awards to EFF insiders. In 2005, we noted, the EFF marked the lifetime’s achievements of one Mitch Kapor. One of his achievements happened to be… founding the EFF. Last year, the EFF cast its net far and wide, scoured every corner of the earth… and honoured EFF Fellow Cory Doctorow.”

And in the page of history is worth a volume of logic column: The Critical Legal Studies crowd in the 70s and 80s (the Duncan Kennedy version) employed very much the same tactics as the EFFluviati–shamelessly quoting each other in a never-ending stream of law review articles that created the illusion of academic credibility. More later about these historical similarities.

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