Better than Sliced Bread – Google Scholar Enters Our Lives

For those who haven’t seen it yet, Google recently launched Google Scholar.  This is huge for a number of reasons.

Google Scholar is a research search tool designed specifically for scholarly research, including legal research.  Although it does not offer everything that the giant, expensive, legal search providers have, it looks like it has a lot of very useful tools.  Check out the “How Cited” links (example), the reporter pagation in the left hand margin (example), and, for your jurisdiction specific searches, the advanced search options.

In addition to being a very useful legal tool, Google Scholar is worth attention here because it involves a number of intellectual property issues.  In the United States, case law is part of the public domain.  The inclusion of court opinions therefore poses no IP problems. However, Google Scholar also includes access to journal articles, books and such copyrighted materials.

Google Scholar seems to balance the access to these materials and protection of the copyright in a few different ways.  For some documents, Google Scholar provides a link to an outside paid service such as HeinOnline, JSTOR and even Lexis and Westlaw (links are to examples.)  These services provide you a snippet of the item and offer you ways to view the entire document.  Local libraries may provide free access to some of these databases and Google Scholar has a mechanism to help users find libraries with access.  Basically, in these cases, Google has skirted the potential copyright issues by linking to already existing services.  These services have already worked out the copyright licensing logistics for their resources.  Google just points the users to the resources and the service takes it from there.

For full text articles are also available from non-paid sites.  It appears that in these cases the articles are already available online from journal sites, publishers, and university sites (links are to examples).  Google again just points the users to the article.  In many cases, these links are to pdfs, so the user may not realize what site is providing the materials.  Some sites may not like this, or may have other reasons for desiring that their material not be included in the Google Scholar searches.  Google offers them the option of having their materials removed.

The biggest area of copyright contention in which Google Scholar seems to be involved is with regards to materials not accessible via any third party site, either paid or free.  These materials, when available, are available through Google Books.  While Google is still working through the copyright muck there, Google Scholar has done a good job of utilizing resources that are already available.

Google Scholar may be a new competitor for some of the expensive, traditional, legal research tools, but at its core it is really just a focused version of what Google does best, search.  Luckily for all the users out there, most of the copyright issues surrounding searching and linking have already been worked out.

Did You Read That?

I actually, occasionally, read the terms of service and licensing agreements before clicking “Agree” for websites and software programs.  Apparently I’m a bit odd in that sense.  Even my Intellectual Property Licensing professor said she doesn’t read them.  Sometimes I’m just curious, sometimes I really care, sometimes I don’t have the time or energy.  One of the biggest factors in my decision to read is whether there are other options for similar services or if I can tailor my use of the site to fit only the terms to which I agree.

A Little Comparison

For example, I reluctantly joined Facebook a few months ago but my only ‘picture’ is a black box.  Why?  Because this is the Facebook Terms for users’ content include:

“you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License")” (emphasis added)

Facebook has really cleaned up their terms of use (compare to prior), but I don’t like that “transferable” part in there.  Why does Facebook need the right to transfer the license I gave Facebook for my work?  If another company were to buy Facebook, it would want all the license rights to the content on the site, but I might not trust the new owner anymore than I trust Facebook.  [And, when I joined, Facebook’s terms included a provision allowing Facebook to use my content commercially.  I presume this was because Facebook runs ads on the side of the page, but it was a term with which I am not comfortable.]

I was able to choose not to post photos on Facebook because there is another option; Flickr.  The Yahoo! Terms of Service that govern for Flickr include this nice little tid bit:

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. (emphasis added)

See that nice little “solely for the purpose of…” clause.  I love that.  Yahoo! needs the mentioned license rights in order for Flickr to do what it’s supposed to do.  But, I have no desire to give Yahoo! those rights for something like handing my photos out on flyers at a conference (unless, of course, they’re cc-licensed in a way that allows this).  Yahoo! doesn’t try to grab more rights than it needs.  Beautiful.

Surprises

Sometimes, a license agreement or terms of service can be pleasantly surprising.  Sometimes, surprising in a not so pleasant way.  The Microsoft Terms of Use are actually pretty easy to read and navigate.  On top of that, the company does a decent job of explaining the nebulous concept of fair use, explaining that “[I]n limited situations, you can use copyrighted works without permission from the copyright holder.”  But the really great, and extremely surprising, piece in the Terms of Use is the mention of and support of Creative Commons licenses.  Creative Commons and Microsoft are usually assumed to be on opposite sides of the battlefield.  It’s great to see Microsoft recognizing the value CC licenses provide:

Creative Commons licenses are a simple way for you to let people know what uses they can make of your creative works and under what conditions.

Google Chrome, on the other hand, has a not so great surprise in its terms:

“12.2 Google may at any time, terminate its legal agreement with you if: (A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms)”

In general, the way software licenses work is that if you use the software, you’re agreeing to the licensing terms and therefore using it with permission.  If you were to use the software without permission, you would be committing copyright infringement because of the unauthorized reproductions of the copyrighted elements of the software.  So, if you breach a provision of the Terms so that you are no longer an authorized user, you are now an unauthorized user and continued use constitutes copyright infringement.  Copyright infringement is very expensive if you are found liable.

Incidentally, Creative Commons licenses have a very similar provision in them.  “This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License.”  This term makes sense in CC licenses because the license is specifically granting particular copyright rights for a copyrighted work.  If the person won’t agree to the terms for these rights, then the person who owns the rights doesn’t need to grant them.  i.e. If I’ll let you sit in my chair as long as you won’t stab it with your pocket knife and you insist you want to stab it with your knife, there’s no reason I should let you sit in it.

The license agreement for a piece of software, such as Google Chrome, contains many more issues than just copyright rights.  For example, Google’s Terms include provisions about information storage, disrupting service, removing content and protections for their software that go beyond that covered by normal IP laws.  In this case it’s like I’m saying you can sit in my chair, but only if you don’t stab it with your knife, do eat potato chips tomorrow, never step on my lawn, and only cry on Thursdays.  If you happen to cry on Wednesday, you can’t sit in my chair.  Whether or not I let you sit in my chair has a great deal to do with how you’ll treat my chair; it has nothing to do with when you cry or if you step on my lawn.

Will I still use Chrome?  Yes.  Why? Because there aren’t any terms I see myself not being able to follow.  The other terms are generally agreeable to me.  And, I find Chrome to be my best option for browsers.

The key to reviewing terms of service is to know what you are willing to accept for a specific service and what will never be acceptable no matter how great the service.  And have fun reading, you never know, you might be surprised!

Copyright War Summit Report: The Future of Google Book Search

Google Policy Analyst Derek Slater presented on Google Book Search and its future.  In addition to explaining the Google Book Settlement (discussed here, with follow-ups here and here), Slater clarified the underpinnings of Google Book Search itself.  He also provided some interesting statistics on orphan works and the public domain.

For those following the Google Book Search Settlement controversy, the most interesting part of the presentation would probably be Slater’s discussion of how the Settlement makes competition easier rather than eliminating it (one of the biggest criticisms of the Settlement Agreement).

Book Search Sources

The books contained in Google Book Search come from two different projects.  One of these projects is undisputedly legit.  It is a Partnership Program in which authors and publishers contribute to Book Search by sending copies of their works to Google for scanning.  The authors and publishers have agreements with Google where they share the revenue from any advertising displayed alongside views of the scanned books.  Slater confirmed over 1.5 million books have been added to Google Book Search in this way.

The Library Project is a partnership not with publishers and authors, but with a number of libraries around the world.  Basically, the agreement is that Google scans the books and the libraries receive digital copies of their collections.  Google separates works in this project into two subdivisions: out of copyright and in copyright.  The in copyright books scanned from the Library Project are the cause of the controversy that led to the law suit and subsequent Settlement Agreement.

Facilitating Competition

Slater argues that the Google Book Search Settlement actually facilitates competing with Google Book rather than giving Google a monopoly.  In short, this is because Google is doing all the heavy leg work.  Google is helping to fund the registry that will contain information about who is willing to license and who is not, or under what circumstances someone is willing to license (assuming the settlement is approved). 

Google’s work will lead to less orphan works problems by increasing the number of claimed works.  This will help open up access to currently orphaned works for others wishing to compete.  Google’s work will also help clarify the status of older works, works whose creation date falls into the 40 year grey period created by various changes to the US Copyright Act.  Google believes that a great number of these works are actually in the public domain.  Once the status of a book is known, possible competitors will have an easier time accessing the book.

Google is also facilitating access for potential competitors by making copyright renewal records available for download.  Slater’s arguments address many of the concerns raised by those fearful of a monopoly of knowledge, except for one big one: competitors access to original copies of the books to scan.  Perhaps Google assumes competitors will just have to go through libraries as Google has for out-of-print works.  Will libraries be willing to partner with lesser-knowns or start-ups?

The full presentation goes into more detail and does a good job of explaining the Settlement and its perceived benefits.  If you are interested in details of the Settlement or the statistics on copyright and books, it’s worth a view.

Devlving Deeper in Google Book Search's Settlement

Back in late October, when the proposed Google Book Search Settlement Agreement was released, Ip's What's Up posted a summary of the agreement followed, in November, by some reflections on the agreement. For those readers who are still interested in the Google Book Search settlement, we would like to direct you to a very interesting (and nicely short) post by Ray Corrigan at B2fxxx.

Ray provides a neat summary of a more detailed analysis done by James Grimmelmann. The post lists six principles followed by 16 recommendations addressing these principles, with nice hyperlinks to direct you to relevant parts of Gimmelmann's article. My favorite part is principle and recommendation 0:

• P0: The settlement should be approved
  

• R0: Approve the settlement.

Kudos to both Corrigan and Grimmelmann for making this important information available and easily accessible!

What the Google Book Agreement Tells Us about Copyright

There's been quite an uproar since release of the proposed settlement agreement between Google and the Author's Guild/Association of American Publishers.  A lot of people are discussing the settlement itself (including us here at Ip's What's Up), but this settlement agreement tells us about more than just the relationship between the parties.  It also provides us a lens through which to analyze the current state of our copyright system.

Good Things

The best thing about the proposed settlement agreement is simply that it's a settlement agreement.   The parties have found a solution without going through the whole litigation process, a solution that makes each participant feel that they are coming away in a better position than if they continued with the litigation.  Page six of the settlement agreement expresses this well:

WHEREAS, Plaintiffs and Class Counsel conclude that this Settlement
Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class in
light of the risks inherent in prosecuting the Action and the benefits obtained under this
Settlement Agreement.

I'm not necessarily talking about the actual settlement being good.  There's a lot of discussion out there on whether that's the case.  [The comments section of Lessig's post has some good discussion on the merits of the agreement, as does Medialoper.]  It's encouraging just to see private parties recognizing each others' rights and sorting out their differences without getting the government involved.

One commonly recognized purpose of copyright is to create a balance between the interests of creators and consumers.  Over the past decade, there has been a lot of criticism that copyright laws have lost sight of this.  The Google settlement, by focusing on creating the right balance, shows us that the copyright system can still work towards achieving this goal.

Wendy Seltzer suggests that the registry system created by the agreement seems more like something we should expect the government to provide.  But I disagree.  It makes more sense to me for the stakeholders to create a registry like this than to lobby the government for the creation of such an entity at taxpayers' expense.  The parties involved in this settlement are going to have a better idea of what's needed and of what's important for the registry than the government would.  Google has the funds (which the settlement requires them to use) for a large venture like this.   Additionally, as Lessig remarks, this arrangement allows "anyone who wants to build a competing and complementary database."  Besides, US collecting and performance rights societies aren't government run, and they seem to work well.  It's exciting to see the willingness of private parties to invest in the future of a copyright industry.

 

Here, We Still Need Some Work

The agreement also points to one glaring problem with the current copyright system: borders and boundaries.  Everything in the agreement only affects Google Book users in the United States, even though it affects authors from around the world.  This is because copyright, despite the many treaties, is national law.

The parties involved in the agreement brought suit in the United States  (District Court for Southern District of New York, to be exact).  The court does not have jurisdiction beyond the United States, and thus cannot make rulings or approve settlements that would affect laws in other areas.  This is good; we don't want the courts of one nation being able to dictate laws for other countries.  Unfortunately, the results of this division aren't always good.

Thanks to the Berne convention, authors from nearly every country in the world have their works protected in the US by US copyright law.  The same goes for their works in many other countries under those countries' copyright laws.  All the foreign authors whose works are protected in the US are part of the class involved in this agreement (unless they choose to opt out).  Yet, this agreement has absolutely no affect in their own countries. 

It seems strange to put geographical boundaries on something as open and location-agnostic as the internet, but it happens all the time.  Pandora isn't available outside the US.  Music fans around the world complain about not having access to the hundreds of music videos MTV posted online (and unfairly blame MTV for this).  Our laws are territorial, our communications are not. 

Unfortunately, the Google agreement does nothing to help in this area.  It's unclear if there is a forum that would have allowed the parties to come to an agreement applicable to the entire world.  Perhaps something like the International Arbitration Centre for Copyright & Image Rights (IACCI) could be utilized for this purpose.

Hopes for the Future

The Google settlement agreement leaves me with two main hopes for the future of copyright:

1. That the music industry can find a way to reach similar agreements instead of just suing the $&%* out of everyone and making the government their private task force;
2. That as agreements like this continue to be worked out in other areas of copyright, IP law, and trade, we can find some way to harmonize the world's access to information.

Getting War and Peace Peacefully

Yesterday Google announced some very exciting news: an agreement reached between them and the other side of the Google Books lawsuit.  (Press release.)  This is very exciting!  I'm not going to get into the press release because IPKat has already done a great post with a copy of the press release and some commentary.  Instead, here is some information about the nitty gritty of the proposed settlement.  (The settlement is currently awaiting approval by the US District Court for the Southern District of New York.)  Later, we'll look at what the settlement could mean for general IP law and IP policy.

For a detalied expert opinion on the settlement, see Lessig's blog.

Benefits of the proposed settlement:

For the rightsholders (i.e. authors and publishers):

• cash payments for any works that have already been digitized (from $5 to $60 depending on the work)
• a portion of the proceeds collected by Google from the Google Library Project (63/37 split)
• usage fees based on how often their particular work is accessed
• inclusion fees for allowing the book to be included in the subscription database (basically like buying a copy of the book and the rights to reproduce it digitally and display it)  (expected to range between $25 and $200)
• the creation of a registry that's sort of like a collecting society (a book version of ASCAP/BMI/SESAC) that will maintain a registry of rightsholders and facilitate payments to the proper people
• the ability to opt out of the Google Library Project in whole or in part, provided they do so by April 5, 2011 [note: there is some concern that this gives the rightsholders too much power and defeats the purpose of copyright.  This author disagrees and feels that this provision allows rightsholders to exercise the rights given to them by the copyright law over digital versions of their works in the same manner they have exercised these rights over print copies.]
• promotion of other works via hyperlinks to publisher and author webpages
• a warm fuzzy feeling that their works are being appreciated and they are being compensated

For Google:

• the right to digitize works and compile the digital library (non-exclusive and subject to some restrictions, which may include rightsholder approval)
• revenue from the sale of subscriptions of its database, sales of individual books and advertisements (split 37/63 with the rightsholders, see above)
• a warm fuzzy feeling that it is making the world a better place

For us:

• a simple and easy way to google the library - we'll be able to search through millions of books the same way we can currently search through millions of webpages, and we will be able to view a certain section of the book surrounding our search terms (basically between 10% and 20% of the book)
• the ability to access the full text of books in the Google Library Project at local institutions that subscribe to the database, similar to JSTOR or ProQuest
• the ability to purchase on-line access to copyright protected books
• free and easy access to public domain books  (I've tried this out already by googling part of the first line of my favorite book, "it is a truth universally acknowledged."  Got the whole book right on my screen; it's pretty nifty!)
• access to the complete Google Library Project database at our local public libraries
• the ability to annotate and share annotations of books with others with whom we are collaborating, limit 25 (Google is all about the sharing)
• better disability access to works held at participating libraries (participating libraries who have digitized their collections with Google are allowed to use their digital copies for a variety of things including providing access to people who cannot use the physical books)
• faster access to knowledge via hyperlinks relevant to the works found in searches
• digital backups of works and easy replacement of destroyed or deteriorated hard copies (this may help solve some of the problems with library reproduction rights under the fair use doctrine in regards to digital copies)
• a warm fuzzy feeling knowing that our laws can work for us and make everybody (pretty much) happy

Now, the question is, since all this only applies to US access, how will it affect my Google Books here in Nigeria?