... fakat yorum yapamayacak kadar çok şey okudum.
Dava ne hakkında?
Bu dava Google Kütüphane Projesine ilişkindir. 2004 yılında Google bazı kütüphanelerle, ABD telif hakkı yasasıyla korunan kitaplar da dahil olmak üzere, bu kütüphanelerin koleksiyonlarında bulunan kitapların dijitalleştirilmesine ilişkin anlaşmalara girdiğini duyurdu. Bazı yazar ve yayıncılar izinsiz dijitalleştirmenin telif haklarını ihlal ettiğini iddia ederek Google’a karşı bu davayı açtı. Yazar ve yayıncıların telif hakkı ihlali iddialarına cevaben Google kitapları dijitalleştirmesinin ve bu kitaplardan küçük yazılar ya da bazı satırlar görüntülemesinin ABD telif hakkı yasasının "adil kullanım" ilkesine göre yasal olduğunu savundu. Google’ın kitapları dijitalleştirmesinin ve görüntülemesinin ABD yasalarına göre "adil kullanım" olarak kabul edilip edilemeyeceğine ilişkin yasal anlaşmazlığı çözmek yerine taraflar bir anlaşma üzerinde uzlaştı.
Taraflar neden bir anlaşma imzalıyor?
Davacılar ve Google tarafından yapılan uzun incelemelerin, iki yıl süren anlaşma görüşmelerinin ve Orijinal Anlaşmada yapılan değişikliklerin ardından taraflar bir Değiştirilmiş Anlaşma üzerinde uzlaşmaya vardı. Anlaşmalar hukuk davalarını davacı ya da davalı lehine karar verecek bir mahkeme ya da jüri olmadan sonuçlandırır. Anlaşmalar tarafların dava masraflarını ve riskini engellemesini sağlar.
Authors from Ursula Le Guin to Michael Chabon have spoken out against the Google Book Settlement, decrying the way it seems to wrest control of books away from authors. Both LeGuin and Chabon, along with thousands of other published authors (you can view a complete list here [PDF]), opted out of the GBS. Authors who opted out of the GBS don't want their work included in that mega-group of "all works published in the U.S." that Google has retroactively licensed. In short, they don't want to be part of Google's digital library. But why?
Le Guin told io9 via e-mail:
Google is digitizing copyrighted books without getting, or even seeking, permission from the copyright holders. How they persuaded several great libraries to allow them to do this is a question that needs answering, as libraries have always been careful about seeing that library users observe copyright law. If we go on doing it [Google's] way, we end up with a wholly-owned list of digitized books, many stolen from their owners, totally controlled, managed, opened and closed to public use, by a profit-making corporation interested in furthering its monopolistic control of information.
Like many other authors, LeGuin does not interpret the GBS as a blow struck for copyright reform. She wants to control who digitizes her books, and how they do it.
In the short term, opting out of the GBS won't affect most writers very much. But in the long term, as more people access books online, it's possible that LeGuin's books will become increasingly hard for people to learn about. You will be able to buy them online, and access plot summaries. But, unless LeGuin gives another company permission to do what she's forbidden Google, nobody will be able to "leaf through" her books virtually, the way you might in a bookstore.
In the Insurance Year Book 1880-1881, which I found on Google Books, Cornelius Walford chronicles the destruction of dozens of libraries and millions of books, in the hope that such a record will “impress the necessity of something being done” to preserve them. The famous library at Alexandria burned three times, in 48 B.C., A.D. 273 and A.D. 640, as did the Library of Congress, where a fire in 1851 destroyed two-thirds of the collection.
I hope such destruction never happens again, but history would suggest otherwise. More important, even if our cultural heritage stays intact in the world’s foremost libraries, it is effectively lost if no one can access it easily. Many companies, libraries and organizations will play a role in saving and making available the works of the 20th century. Together, authors, publishers and Google are taking just one step toward this goal, but it’s an important step. Let’s not miss this opportunity.
(This first appeared in the New York Times, available here.)
Unlike the Alexandria library or modern public libraries, the Google Book Search (GBS) initiative is a commercial venture that aims to monetize millions of out-of-print books, many of which are "orphans," that is, books whose rights holders cannot readily be found after a diligent search. David Drummond, Google's chief legal officer, has estimated that about twenty per cent of the books in the GBS corpus are orphans, but other estimates are higher. Even twenty per cent, however, equals millions of books. Under the settlement announced last October, Google and the publishers and authors who sued it for infringement agreed to hold on to the revenues made from sales and licenses of orphan books for five years, but thereafter to pay the monies out to registered rights holders--that is, to people who had neither written nor published the books in question, a pure windfall for them. The U.S. Department of Justice (DOJ) has objected to this part of the deal, as have several states.
But a Xerox machine could make the same boast; we don't give it the right to exclusively negotiate royalties with authors who may not even know their works are being reproduced. Even though Google didn't set out to hold a monopoly on millions of books, that's what it ultimately tried to acquire. And Brin's effort to minimize the barriers his rivals face to replicate Google's archive is just insulting.
To grasp the problem, you must actually open up the 165-page-long settlement and read a bit of the language. (The first twenty or so pages are definitions, so skim those.) Very quickly, one sees that the Twitter version of this settlement sounds better than the actual document reads. For rather than a relatively simple rule about how much of a book you get for free, and when you have to pay, the actual terms are enormously complex. Whether a book is “free” depends upon the kind of book it is. Journals have a different rule from regular books. Books with pictures have a different rule again.
The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed. It is the opposite of the old slogan about nuclear power: every bit gets metered, because metering is so cheap. We begin to sell access to knowledge the way we sell access to a movie theater, or a candy store, or a baseball stadium. We create not digital libraries, but digital bookstores: a Barnes & Noble without the Starbucks.
And what this means, or so I fear, is that we are about to transform books into documentary films. The legal structure that we now contemplate for the accessing of books is even more complex than the legal structure that we have in place for the accessing of films. Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.
Whatever the advisability of government regulation, few would dispute that we need more and better competition in search to curb Google’s power. But Google is doing its best to keep that from ever happening. That’s where the Book Settlement comes in. Google intends to use the settlement to disadvantage its competitors and to bolster its own position in search.
Google announced its project to scan and digitize books in December 2004. Both commercial and not-for-profit entities started scanning books before Google did. Several other rivals started scanning books shortly after Google announced its project. All of these competitors scanned (pdf) only books in the public domain or for which they secured the rightsholder’s permission. Google, on the other hand, scanned all books in the collections of some of the nation’s leading research libraries, including those still under copyright, without securing permission from the rightsholders.
Very recent results from scientific studies of web searching explain why Google has spent enormous amounts of money to acquire the digital rights to vast numbers of old, dusty books. Most search queries are directed to popular subjects – shopping, travel, medical information, etc. Some queries, though, are directed to more obscure subject matter. These are known as “rare,” “obscure,” “esoteric,” or, sometimes, “tail” queries, in reference to the “tailing off” portion of a graph showing the frequency distribution of a population (search queries, in this case) exhibiting the Pareto principle, known to everyone who sells products as the 80-20 rule. Most queries are directed to a few (relatively speaking) popular subjects and therefore show up in the “fat” part of the frequency curve. The frequency of increasingly obscure queries “tails off” asymptotically, providing a “long tail” to the right of the “fat” part of the curve.
For a time, computer scientists thought that most obscure queries were generated by only a few users (again, speaking relatively), and, hence, search engines could ignore obscure tail queries and still serve the great bulk of the user population. But research has shown that just about everyone makes a rare query from time to time. And, people decide which engine to use for their everyday search needs based on the engine’s ability to satisfy these rare queries, just as one would expect in a world that values “one-stop shopping.” Stated more formally, satisfying demand in the tail increases consumption in the “head” or fat part of the distribution curve.
Google will get an enormous advantage over its search competitors if it can support (i.e., respond satisfactorily to) tail queries that its competitors cannot. Scientific research shows that supporting tail queries produces a disproportionately large increase in overall user satisfaction – i.e., disproportionately increases the size of the user population highly satisfied with the engine’s performance. In fact, according to the most recent study, satisfying an additional 1% tail queries increases overall user satisfaction with the engine more than 5% — this, in a market in which companies battle fiercely to wrest even a tenth of a point in market share away from Google’s control.
JONES: This is Fiction Circus! And we're here with Professor James Grimmelmann, who is a professor at the New York Law School and is writing a brief right now about the Google books settlement. I believe you went to Harvard AND Yale?
PJG: Yes, although not at the same time.
JONES: Alright, that's good.
PJG: Here's what my friends said: I also worked for Microsoft, but the Soviet Union dissolved before I ever had a chance to go there, so I couldn't get the trifecta.
PJG: So basically, we go back a few years, and Google announces this deal with the University of Michigan and a bunch of other libraries where Google is going to send people into the stacks, pull down shelfloads of books, and scan them. Google has these machines, we don't know too much about how they work, but basically people are flipping pages over one by one and they take pictures of them, and then Google takes the pictures and does some optical character recognition and has a gigantic database of page scans. Google was originally getting into this business so they could make a book searchable, the same way they make web pages searchable or news searchable, and this gave you an index of it. You type a term in and you can find your favorite book on "Google Book Search." But they weren't going to try and make the books themselves available unless the publishers said "okay," or unless the books were so old they were in the public domain. This was originally just about letting you know which books said something, and where it was out there. But even that was enough that the publishers and the authors got angry, and they sued Google for copyright infringement. So this is 5 or 10 million books, times that $150,000 dollars, and it is a lot of money.
JONES: So they're scanning these books for people to search, and they didn't have any clue that they would be facing a lawsuit, but now that they've found themselves in this situation, instead of paying the $150,000 dollars per book, they actually reached a settlement with the people who were suing them.
PJG: Google had another option there which was to fight the lawsuit and win. And a lot of law professors like me thought they had a pretty good case. We were really cheering on Google in that fight because they were making a big "fair use" stand. But yeah, like you are saying, back in October 2008, so last fall, Google and the publishers and authors come out and the announce: "We've reached a gigantic, ground-breaking settlement. We are going to now dissolve the lawsuit, Google is going to pay $125 million dollars for everything they've done so far, without admitting wrongdoing because they always say that, and then Google is now going to get the rights to put the books online and sell online ebooks. And Google collects the money and sends the money back over to the copyright owners."
Thursday’s fairness hearing was fascinating. Very little happened to substantively change where the case is going, but as a snapshot of the players and their positions, it was very revealing.
I was at the courthouse from 8:30 onwards, with the team of New York Law School students who’ve been working on the Public Index. We didn’t want to take any chances that we might not make it in. (Last time, we were among the very last people seated.) No worries there; we got great seats in the overflow room, and in the afternoon, in the courtroom itself. I’m very glad I had the student team along with me. Their observations and insights about the arguments and the lawyers were invaluable in helping me write up this post. Other than my conversation with them, I’ve avoided reading the press coverage; I wanted to provide a direct account of how I saw the day’s events, without being influenced by others’ takes.
At 10:10, the “All rise!” came through. I rose, even though I was seated in the overflow room. Call it conditioned reflex, or call it the proper reaction to having the darsan of the judge, which was no less real for being conveyed through the video link.
Tom Rubin from Microsoft then argued against the settlement, calling it “radical.”...
Google, however, was like a trucking company that told its drivers to go 90, then tells the court that its competitors should speed, too. My students all agreed that it was a great choice of metaphor (notice how it makes the scanning competition into a kind of race) and that Rubin played his hand well by using it as his conclusion, where it would linger memorably.
After a ten-minute recess, arguments resumed at about 11:45. Cindy Cohn from the EFF argued on behalf of her group of 28 authors and publishers worried about privacy. How is that a class concern? Well, if readers don’t have good privacy protections, they’ll be subject to a chilling effect. Reduced readership means reduced money for authors. The settlement creates a library-bookstore combination; it can track not just what books you read, but which pages, and what you scribble in the margins. No one has ever had this before. What’s more, she explained in a very clever twist, the plaintiffs agree with us; they say in their briefing that they support efforts to improve privacy for users.
Here, Judge Chin interrupted with a question. If I order a book on Amazon, how is this different? Cohn gave the second-best answer to a question all day: unlike Amazon, Google will be able to track what you read after you buy. Chin followed up by asking she thought the problem should be fixed. Cohn then have the first-best answer to a question all day. Two reasons, she said. First, Google should be required to require a warrant or court order before turning over information to law enforcement. Google says that requiring a court order isn’t the law yet—but if were the law already, she noted, we wouldn’t have to worry about this here, they’d just need to follow the law. Second, Google should mitigate the privacy risks by keeping the data for 30 days or less. They already delete health data within two weeks.
Hadrian Katz, speaking for the Internet Archive, then gave, hands-down, the best argument of the day. He spoke without notes, resting on the podium, and succeeded in doing what no one else before or after had or would: transcending the narrow specifics of the many legal areas at stake to give a compelling encapsulation of the case. Plenty of others spoke in outraged generalities; Katz linked his clear vision to the issues actually facing Judge Chin.
A single condition, Katz argued, would realize all the benefits of the settlement and resolve virtually all the problems. Approve it as is, but on an opt-in basis. Nothing in the parties’ submissions explains why the settlement would need to be opt-out. He pointed to footnote 8 of Google’s brief, in which Google argued that going to opt-in would “eviscerate” the settlement. “This is about the orphans,” Katz concluded. Look at page 8 of Google’s brief, in which they argue that opt-out is vital because it makes the market for these out-of-print works possible. “They knew they couldn’t find the rightsholders,” he argued: that’s why they need an opt-out settlement.
In an opt-in world, according to Katz, notice would be dramatically better because the parties would genuinely have a full incentive to locate copyright owners. They’d get all the benefits to the class they keep talking about; the Registry would become the place all of Google’s competitors would also want to go to. The reason the defendants don’t like opt-in is that they want access to the orphan works. And that’s what’s unfair about the settlement. It gives Google these rights into the 22nd century.
I was impressed with Judge Chin’s demeanor. He wore his intelligence and his authority lightly. His patience with the attorneys was, generally, inversely proportional to their self-importance. He didn’t ask all that many questions, but he regularly managed to put the attorneys on the spot with exactly the right question. On the whole, he stayed far away from the details and the specific tests; he seemed to be looking to garner parties’ clearest statement of their positions. He confronted them with difficult issues, but generally didn’t keep them pinned down once it was clear they couldn’t (or didn’t want to) address a question. His attitude was, by and large, pragmatic: he was looking for concrete problems and for specific solutions. I don’t have a much stronger read on how he is leaning in the case, other than to note that he is not signaling an urgent need to move quickly to a decision, and that he clearly recognizes which issues in the case are fundamental and which are tangential.
I expect a small flurry of motion practice in the next few weeks. Scott Gant signaled an intent to seek discovery on the notice; Amazon indicated a desire to brief its responses to the new cases cited by the parties last week. Based on his comments at the hearing, I expect Chin not to open up the case, procedurally in any significant aspects. I don’t expect discovery; I could see possibly some new briefing, but if so, under very strict page and scope limits.