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Sunday, August 02, 2009

Courts - Indiana's statutory history and the dangers of the controversial Google book settlement

This editorial from the July 29th NY Times, headed "Google’s Big Plan for Books ," gives a good summary of the proposed Google book settlement:

While the Internet has transformed much of the information world, books have been a laggard. Google may change that. It has already scanned millions of out-of-print books, and it has reached an agreement with writers and publishers — which still requires judicial approval — to make them widely available.

Google’s book service raises monopoly and privacy concerns. It also holds great promise for increasing access to knowledge. Much of the information in the world’s books is not widely available. When Google began scanning out-of-print books held by major libraries its goal was to create an enormous database that Internet users could access from local libraries or homes.

Google fumbled, however, by scanning copyrighted works without the rights holders’ permission. Writers and publishers sued, and the parties have now reached a settlement. A federal court in New York has scheduled a hearing this fall on the settlement, which could be hotly contested.

Google’s effort could create new interest in millions of out-of-print books, which would be made available at no cost at public libraries. That means that a student at a community college or a freelance writer could access the same books as a Harvard professor.

At a time when publishing’s economic model is threatened, there is also an important financial upside for authors and publishers. Google would charge users for accessing copyrighted books from their own computers and sell online ads, and it would give writers and publishers 63 percent of the revenue. The settlement would create a books rights registry to distribute payments.

Google’s access to most books would not be exclusive since Microsoft or Joe’s Online Library could cut their own deal with authors and publishers and scan books as well. However, it is likely that as a result of the settlement, Google would be the only company with the right to “orphaned” works, books whose rights owners have not been located.

If that were to happen, Google could use monopoly power to price these books exorbitantly. The court reviewing the settlement and the Department of Justice should make sure adequate protections are built in.

The proposed settlement also raises privacy concerns. Google could collect data on what books people read and create a dossier of their political views and other information. Google should generally do a better job of showing how it will respect privacy, and this venture is no exception.

Google has been going through the nation's libraries, scanning books and putting them online. On a hunch one day, I looked to see if the Indiana session laws (Acts of Indiana) were among the books scanned. Sure enough, dozens of them have been.

This could cover an enormous gap in Indiana law - making freely available digitized copies of the Acts of Indiana going back to the beginning of statehood. In most case, only a few tattered versions of the original printed volumes remain. The ILB has a number of posts about how important it is to preserve this heritage. See, for instance, this entry from Feb. 7, 2007, about the Indiana Historical Bureau digitizing the Constitutional Debates. It ends:

What will be next? The ILB hopes, for starts, the Acts of Indiana from at least 1852 to the present, as well as the equivalent Journals of the Indiana House and Senate.
And this ILB entry from last week (July 31st) includes this quote:
“The history of law is disappearing; older versions of a law, amendments, show the thought process of a people and how they evolved,” observed ABA Legal Technology Research Center director Catherine Reach.
What do these Google-digitized volumes look like? Here, for instance, are the Laws of the State of Indiana, 1913, which Google digitized from the Stanford library. The volume may be read, and searched, online, or may be downloaded as a PDF document.

Many of the volumes of Indiana's laws from 1816 to 1851 have been digitized by Google. An immediate use for them would be as additions to the Historical Bureau's digital collection of Indiana's historical documents.

My interests here however are the laws that are of the basis of our current Indiana Code. These trace back to the Revised Statutes of 1852. At my last count, Google has digitized about half the 1852-1922 volumes of Indiana session laws.

At least one, from 1883, is mislabled by Google as 1888. All of these are full downloadable versions, except for 1877, 1893, 1895, 1909, 1917 and 1918, which unaccountably currently are available only in "snippet version."

What is "snippet"? It means the book has been digitized by Google, but a reader can only access its content via the search box, which returns only "snippets" of the search word in the context of a couple lines. The volume may not be read online, or downloaded. One cannot even view the title pages.

Here is what Google says, and this will begin to explain my objections to what Google is proposing:

# Why can't I read an entire Library Project book online?

Google Book Search is designed to help you discover books, not read them from start to finish. We want to make it easier for users to find and buy books while protecting the rights of copyright holders. So when you find a book that is still under copyright, you'll see the Snippet View which, like a card catalog, shows you information about the book plus a few snippets – a few sentences of your search term in context. However, there are some books that are out of copyright which means we can display the full book in the Full Book View.

# How do you determine if a book is in the public domain and therefore out of copyright?

For users in the U.S., Google Book Search currently treats all books published after 1922 as protected by copyright, except for books to which no copyright was ever attached, such as books authored by the U.S. government. For users outside the U.S., we make determinations based on appropriate local law. As with all of our decisions related to the Google Book Search content, we're conservative in our reading of both copyright law and the known facts surrounding a particular book. If we don't know for sure, you'll see the Snippet View which, like a card catalog, shows you information about the book plus a few snippets – a few sentences of your search term in context.

[Source here]

The Acts of Indiana have never been copyrighted. The 1922 demarcation cited by Google should have no relevance here.

Yet Google has arbitrarily decided not to make most post-1922 volumes it has digitized, and even some pre-1922 volumes (e.g. 1877, 1893, 1895, 1909, 1917 and 1918), available only in snippet view. Leaving out the volumes not listed at all by Google when I did the research several weeks ago, post-1922 here is what we have:

Let me emphasize again, these are volumes of the Acts of Indiana that already have been digitized, but are not available to readers.

What will be impact of the Google book settlement on the Acts of Indiana?

Google has done all the decision-making here. Anyone who might object to the classification of one of these volumes as "snippet-view only" presumably would have the burden of proving the contrary. (And where would you even start? Who would you contact? I have seen nothing on this.)

Once (or if) the settlement is approved early this fall, Google's "rights" attach to these volumes. If I understand correctly, at that point any individual who wishes to access one of these volumes of Indiana's session laws not already in "full view" will have to pay for it, and for the money will obtain only individual rights, NOT the right to make it freely available to others.

Broader implications. Finally, this analysis has been limited to volumes of Indiana session laws, but surely similar situations exist more broadly.

Posted by Marcia Oddi on August 2, 2009 08:15 PM
Posted to Courts in general | Indiana Courts | Indiana Law