Fair use prevails as Supreme Court rejects Google Books copyright case
arstechnica.com
arstechnica.com
I know this isn't an Apples to Apples comparison, but imagine where tech would be today if you were paid a royalty every time something you produced was used in any form. Every time that header bar you wrote for Google back in 2006 is reused, adapted, extended, whatever, you got a >1% royalty on. It's simply not sustainable and I feel is why these "content" industries will ultimately fail.
I'm pretty vocally negative about many things Google does, but as a long as the continue their current course with this platform, I simply can't support the author's guild's "sky falling" hyperbole.
But with current decisions that game companies own your play-trough (they were able to shutdown streams on copyright grounds - it is as if the person that supplies the paints has copyright of the painting) - and with emulator servers moving more and more into the illegal - we could enter a digital history dark age. A lot of the cultural phenomenon that was WoW is lost and unexperiancable for the future generations.
This is a great characterization of the problem, though it's not entirely clear where the issue lies.
A production company gets together a ton of money to build a film or game. Because of that they own the profits on most of the produced work.
What's really tough to understand is that they can choose to stop making profit from it, and in so doing, stop others from using it altogether.
All of these cloud-centric services suffer the same fate -- as soon as the remote part of the product disappears, the entire thing becomes unusable. If that WoW license, for example, didn't come with a "right" to run the game against an independent server, does the production company have to leave itself open to lawsuits, for example, originating through players of the game and weird things happening on even a "vanilla" independent server?
I just don't think "I paid $40 so it's mine" can cut it any more when we're really not buying many of the core or important bits of the game itself.
Yes. But I paid $40 USD and I am entitled to the profits of the art I create with it is sensible stuff. MS cannot prevent you from profiting from the word documents you create. But Bethesda can claim that video of my speed play trough of Doom II infringes their copyright (the case was with Nintendo and some of their games I think). Blizzard can claim that modifying a bits in my RAM memory infringes their copyright and so on.
Hypothetically, could Microsoft legally do that if it wanted to? I'm guessing something like that could be part of EULA.
Which, for other forms (Music, stage plays/musicals, etc.) usually requires royalties paid to the creator of the thing being performed if you perform it for profit.
I think it wouldn't be difficult to argue that the different mediums -- character on a screen vs. character on a stage -- don't really change that aspect significantly. The legal evolution around the birth and maturation of machinima is kinda interesting to dig into.
This sort of thing has implications for game design as well. If you care about your game being experienced half a century from now (which, to be fair, you probably don't), then you should attempt to provide an "offline mode"--even for games with online multiplayer--that makes a best-effort attempt to convey the spirit of the game. Dark Souls does an excellent job at this: even though much of the fun of the game is in playing online (seeing the hints that others have left on the ground, summoning allies for boss battles, fighting off invading players, seeing the ghosts of other players running around the level and the bloodstains they leave when they die), it also goes to great lengths to cater to offline players: there exists a spell that will cause developer-written messages to appear, there are summonable NPC allies and NPC invaders, all PVP reward items can technically (and laboriously) be farmed from enemy drops, etc.
I think that video games are a different enough medium that normal intuition doesn't apply, and that this example is not applicable. I think most people would be unsurprised if a live-stream reading of a novel was found to infringe copyright, but how far would you have to change things to not? Would an interpretive dance adaptation of a novel infringe copyright? Almost certainly not. What about a real-time translation into Tolkien's Elvish? That probably wouldn't either, but translations are generally considered to fall under the same copyright, so maybe.
A sufficient portion of some video games is enough like a movie that I entirely understand the logic behind not allowing live streaming of play-throughs, while others (Minecraft) are clearly centered on user content enough that they would fall on the other side of that line.
I think it's unrealistic to try and describe the situation as clearly fair use or clearly infringement.
That said, I do feel that the extension of copyright length is doing damage to the growth of culture, not least in the area of video games that will be lost to time.
As I see it, there's a very compelling argument for restricting streaming of narrative heavy/gameplay light games. Walking sims and the like. I have no trouble believing that views of lets plays impact sales (although, not as much as that one blog post by the creator of That Dragon, Cancer claimed -- that seems more due to subject matter than anything else).
And FWIW most game publishers allow streaming. The right exists to limit it but few take advantage of it other than nintendo.
For context: I'm an ex-game programmer (admittedly, I mostly worked on strategy games, so this never really effected me or my employers) who watches a more streams and lets plays than I'd like to admit.
If there was ever an example of why gatekeepers are a big deal it was this last stretch of confederate flag hysteria where Apple was going so far as to take down historically accurate civil war games. It probably won't happen often, but it made it painfully clear just exactly how much control a few companies have over the availability of things we want just by controlling the distribution platform. On the flip side though, I do have to admit that in the middle of that my curiosity and Amazon made it possible to find and order about a dozen books about the civil war to start my new hobby (crazy interesting stuff by the way).
To do that, I decided to start with a book that made the southern case since I had no understanding of it at all. Most of the books were by southern authors and seemed emotionally invested until I came across "When In the Course of Human Events: The Case for Southern Secession" by Charles Adams.
This is the book that kick started everything for me because he's not southern and he's a professor who is an expert on global tax history. The book is extremely well cited (about 250 cites in 180 pages) and the cites annotate the paragraphs themselves. This is a huge help because thanks to the online Library of Congress and Google's effort to digitize books, every time you come across a "there's no way that's real" moment...of which there will be many...you can look up the cite and say "holy crap...that happened"
The official tome of the civil war that's a longer read is Battlecry of Freedom by McPherson.
There's a ton of material out there and as things get your attention you'll find lots of rabbit holes to dive down. The real trick of it is once you understand you'll notice so much oversimplification in internet conversations around it, even semi-official looking videos.
A couple of things that will get your attention:
- Each state had different reasons for seceding - Haiti played a HUGE part in secession - The causes of secession and the cause of war are 2 different things - Nobody died at Fort Sumter, the fort just ran out of ammo and the soldiers were saluted as they were returned to their ship. - The part that the media played in the war is extreme
For a single link that can really put you in place of what was going on at that time, the Cherokee Declaration of Causes from 6 months into the war:
http://www.cherokee.org/AboutTheNation/History/Events/Cherok...
Once you get into it you'll find a lot more. The economic side of things really got my attention. There's a lot of interesting European history around it too. In depth on slavery is The Half That's Never Been Told (not an easy read). Most of the Southern accounts are very emotional in the writing style, which may or may not appeal to you. Even with citations that negatively impacts some of the credibility for me, but still interesting to see.
There are also many collections of letters from the time period out there.
The single biggest thing that I took away from is this: every action has an equal and opposite reaction applies to history as well. If you read about something that seems like an extreme response to something small, that's because there is a piece you haven't found out about yet.
On the other hand, I've also "consumed" some book content without purchasing it. In those cases, how is it different to me reading the book in a bookshop then putting it back on the shelf?
A long time ago, I had a shareware product. I'm sure plenty of people benefited without paying (the free version was enough). Sites even benefited from distributing it. I didn't lose sleep over it, because without people being able to try it first I would have had less sales.
In fact, this is sort of like pirating music, movies and TV shows - in particular music. With these items, it was increasingly the case that you didn't know you enjoyed the work or liked the artist until you had actually experienced listening to or watching their work. Most people have a very finite supply of money, and so if they decided not to infringe copyright then they would just decide not to buy the works.
This is why the record companies were so incredibly stupid in not getting behind streaming services, instead attacking people with little resources for infringing copyright, such as suing mother of four Jammie Thomas-Rasset to the tune of $1.9 million.
Apple and Netflix have essentially eaten their lunch because they have basically freed up content for a reasonable subscription fee. Apple iTunes was great even before Apple Music launched because you were finally able to purchase individual tracks instead of having to buy the entire work - and at a price that pretty much anyone could afford.
Which is why I get so annoyed with rights holders dividing the globe into geographical regions. They do deals with big companies to maximise their profits, but this is perversely leading to increased copyright infringement and the bypassing of their geoblocking efforts.
In essence, these distribution companies add almost nothing to the work produced by the original creators and artists, yet take a cut anyway and inflate the price paid by the consumer of the work. Sometimes it's even more perverse - as an example, I tried to purchase the Dragon Book on compilers from Amazon in eBook format to read on my iPad 2. This was not in any way possible to purchase, so I ended up purchasing the physical book from the U.S., had it shipped to Australia and found an unencumbered PDF with the content so I could read it on my iPad.
In the printed world, this is currently the problem Elsevier and other companies are facing. They have restricted access to important research by in effect gouging the market, and so students from overseas countries (in particular in some Eastern-European nations) who could either never gain access to the material or couldn't afford it eventually just shared it and never paid for it. Then they got organised, and suddenly publishers discovered that they had a massive problem on their hands with no way of effectively countering it because those pirating the material are outside of the jurisdiction of the U.S.
1. https://en.wikipedia.org/wiki/Capitol_Records,_Inc._v._Thoma...
There are alternatives but one way might be that the bookshop have an established financial relationship with the publisher [who has rights to distribute the work via copyright] whilst Google have taken a book known to be in copyright [in many cases] have created copies and distributed copies without having such a relationship.
Before widespread music streaming, my interest in the space was barely growing and rarely ever more than a passing interest. This is largely due to the fact that discovery was inconvenient - as a comparatively niche (and vast) musical genre, it was harder to download. Buying the music was out of the question, it is prohibitively expensive to develop an appreciation for the genre - if one album costs $15, then just all of Beethoven's Symphonies alone would be $135 and only for one interpretation of each.
My total lifetime expenditure towards Classical Music is probably approaching $1000, and the rate of spending is only accelerating. I can't help but think that if it weren't for things like Spotify and YouTube making it more accessible, I would not be spending even 1% of this on it.
I wish more people could see the bigger picture when it comes to things like this...
True. But management and payment overhead were huge limitations. I've worked as a freelance, and part of the game is getting royalties in every market. But it was never easy, even with good contracts. Getting paid was a pain.
Now, however, with tons of usage data, and low-overhead blockchain payment systems, perpetual royalties are doable. They could be relatively small, context dependent, and declining over time.
Which is why it won't happen. It would kill all the industries that act as content farms, including traditional and electronic publishing, music streaming, and so on.
It's simply not part of the corporate world's DNA to allow, never mind encourage, true peer-to-peer disintermediated sales.
It would be completely practical now to build a unified global not-for-profit distribution and micropayment system. But corporate systems rely on introducing market friction so they can pretend to offer something useful as distributors and sponsors.
Taking that away and making it trivially easy for artists and creators to sell directly to audiences and users, and to self-organise into project-specific teams that would continue to be paid for work after shipping would be an unacceptable political shift.
See OpenBazaar for one. Bitcoin with changetip and payment channels. P2P search engines. Attempts at P2P forums / social networks.
It won't be quick, but eventually they're going to be bypassed entirely (I hope).
If you created something, why shouldn't you get paid every time anyone uses it? Why should anybody have any rights to a specific thing you created, other than the ones you give them?
beyond that though, even to evaluate if something is worth purchasing you need to be able to look at it and at least some of it's contents. People need to be able to talk about it. Reviewers need to be able to summarise it.
Fair use is a pre-requisite to having any kind of fair market for and social culture around books, or any media.
Now Google reaps all the rewards of the content produced.
How is this fair?
And anyone else is free to do the same thing Google is doing.
Try it. See how it goes.
You'll be just fine.
At some point, there must be an end to the rights, because otherwise they'd make life impossible for everybody else.
You can't reasonably have arbitary contracts follow the entire life of an entire class of things and ALL of their uses.
Otherwise you shouldn't be allowed to pretend you're selling anything - you're only renting it out.
So, let us know how you're going to justify the infinite-copyright meme you like to trot out at every opportunity, both morally and pragmatically. Explain how such a regime is fairer to everyone involved, and results in better cultural outcomes.
Because, you do cheerlead for longer copyright terms a lot. Which is fine (though obv I really disagree). But I've never seen you actually back it up.
Actually, if it was anything like today's movie/music publishing business, you wouldn't get a dime in royalties for that header bar. The benefits of copyright go to rights holders, not necessarily content creators. Maybe Google would have given you a $1000 "advance" for you to sign away your header bar. Meanwhile, they'd license the crap out of it to everyone and keep all the royalties for themselves.
This is, for me, the important bit. Previously, Google was alone in having done this, and had an effective monopoly on all the information in the whole world's books. This was (and still is) not a good situation for the rest of us to be in. Now, I would hope for Wikimedia and/or the Internet Archive to ramp up similar book scanning projects.
Equally, the original agreement between the Guild and Google would have amounted to an effective monopoly but the Guild were fine with that as their authors were getting paid.
In this case, it seems that the courts walked a line between the 2 vested interests and produced an outcome that may well lead to a greater good in the long term.
That data is what is behind https://blog.archive.org/2016/02/09/how-will-we-explore-book...
https://blog.archive.org/2016/02/09/how-will-we-explore-book...
Edit: https://www.authorsguild.org/where-we-stand/authors-guild-v-... is somewhat helpful in understanding the Author's Guild's position, particularly that they reached a settlement with Google in 2008 that was later rejected by the court
They feel threatened by just about any use of anything under their umbrella that they have not yet explicit approved. They want to be gatekeepers not just for the products, but for what you get to do with them.
They want to control the market including both discoverability and which business models that may be used.
You can see the same behavior most prominently in the movie industry and in how they treat video services and apply their "release windows", including the enforced DRM. Look up bluray licensing too, and how they handle even the patent licensing both for players and disc distributors.
I chose to keep after examining the arguments and applying my knowledge of U.S. Fair Use doctrine. Fair Use is codified in 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use [1] - basically there are four things that must be taken into consideration; purpose of work, what it is being used for (e.g. educational use, criticism that involves reproducing part of the work), the amount that is used and whether it would impact upon the market or value of the work.
If anyone is interested, my reasoning for the J. D. Salinger decision can be found in the Wikipedia archives [2].
1. https://www.law.cornell.edu/uscode/text/17/107
2. https://en.wikipedia.org/wiki/Wikipedia:Files_for_deletion/2...
Aren't we just getting back to the same deal as the people who wanted Google to pay them to link to them? They were all screaming about how Google was making money on their backs. Even passed a law about it in a couple of countries. Then Google says OK, we're not going to pay you, we'll just stop linking to you. Suddenly everybody in one of those countries strikes a "deal" with Google where Google goes back to linking to them in exchange for no money whatsoever.
The main difference with printed books is that so many of them are orphan works that nobody even knows who the copyright holder is, so the default being the opposite of what everybody actually wants means that all of those works actually disappear out of the index.
Which is why I suspect the publishers want it that way. Then they can opt-in to being indexed but without all the competition from orphan works, works with uncertain copyright status, works by smaller entities that don't know how to opt-in, etc.
Either that or it's like the news sites and they just don't realize how stupid the thing they're asking for actually is.
So you do think Google should make billions from the minds of others without compensation.
Before you accuse me of hyberbole, you used the term "screaming".
The books they scanned weren't purchased? Google broke into the publishers' offices and stole them?
> So you do think Google should make billions from the minds of others without compensation.
That is the business model of every advertising company in existence. Also mapmakers, phone companies, movie critics, etc.
Are you sure???
But your claim is what Google has offered reasoable?
Additionally, if you steal from the right person, they might just go and buy another copy.
That is correct - this is well established in US case law as the "Fist sale doctrine"[1]. Meaning once bought, the book can be lended, resold, or scanned. However, I believe the Authors Guild was going for the copyright angle, and they lost.
Intellectual territorialism is nonsensical.
Really?
Really?
Actually creative people can go back to being underpaid servants like Mozart and Abel.
You create a work, and Google indexes it to make it easy for me to find.
SCOTUSblog coverage:
> The challengers, in their appeal, argued that the lower court decisions awarding Google a summary victory deviated sharply from the traditional view that one who copies a protected creative work can only claim the legal defense of “fair use” if the copying satisfies the four factors that Congress spelled out in federal law.
> What happened in this case, the challengers argued, was that lower courts permitted Google to rely upon its claim of “fair use” by inventing a new legal concept — that is, so long as the one who makes copies “transforms” the work into another, culturally useful mode, then it is legal. That, the guild and the authors asserted, “empowers judges to approve any re-use of copyrighted works that those judges deem socially beneficial.”
http://www.scotusblog.com/2016/04/googles-book-copying-proje...
The Fair Use factors:
> 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
> 2. the nature of the copyrighted work;
> 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
> 4. the effect of the use upon the potential market for or value of the copyrighted work.
https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors
From the Author's guild:
>Google argued, and still argues, that its book-search program (now called Google Books) offers great public benefits and therefore the copying should be protected under the legal doctrine of “fair use.” We do not believe that private companies should be able to make full digital copies of copyrighted books en masse for commercial purposes under the fair use doctrine—that is, without compensating the rightsholders. So the authors, publishers, and Google sat down to reach a compromise. A proper solution, we believed, would allow readers to benefit while also making sure that authors and publishers got paid for Google’s use of their work.
> After 30 months of talks, we reached an agreement in October 2008: Google would pay out $125 million. Some would go to the owners of the books that were scanned without permission; the rest would fund the Book Rights Registry, an organization that would track down and distribute fees to authors. Google would be able to display out-of-print books to users and charge licensing fees for copyrighted works. Also, the settlement required Google to provide portals in every public library and more than 4,000 colleges and universities in the U.S., allowing widespread access.
https://www.authorsguild.org/where-we-stand/authors-guild-v-...
[0] http://www.nytimes.com/2016/04/19/technology/google-books-ca...
It's weird that SCOTUSblog parrots that line from the Author's Guild so credulously. It's never been true that all four factors must be satisfied to some imagined threshold, and in fact that four factors are qualitative by design.
> We do not believe that private companies should be able to make full digital copies of copyrighted books en masse for commercial purposes under the fair use doctrine—that is, without compensating the rightsholders.
By that argument, no web search engine could practically exist either.
But what arguably might not be is Google scanning entire books en masse in order to get to the point where they can do that.
That to me is a far trickier question...
>> Unlike other forms of Google search, Google does not display advertising to book searchers, nor does it receive payment if a searcher uses Google's link to buy a copy. Google's book scanning project started in 2004.
If that changes later on that may be cause enough to for them to be challenged on fair-use again.
https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors
Many "fair use" usages lead to commercial gain.
For example, "The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair."
Using a work in its entirety surely must factor in.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2606731
TL;DR: "usage" by computer algorithm is quite different from showing a copyrighted work to a human.
There is a part re Sega v Accolade that brings up the interesting sub-topic of "intermediate copying", which is legal, but then says it's legal because it's “the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program.”
But wholesale scanning of entire works is not the only way to gain access to the ideas of books. It's also possible to purchase copies from the publishers.
Perhaps a bit more relevant- "Accolade was not using Sega’s games for their protected expressive content, but simply to extract some unprotected, functional, nonexpressive information contained within them"
I think that would be debatable in certain machine learning projects. Perhaps much of it would fall under that category, but a large part of the point would in fact be to extract the expressive information contained in them.
What I'm trying to get at is related- Google (and other machine learning giants) is making an effort to extract the expressive content of these works. That's different from what we've seen in the past.
To me, at least, it feel like it's worth asking if it's right that the people who produced that expressive content should not be compensated for it.
Also, increasing discoverability through being searchable feels like it should pass under fair use. Can't make it searchable without a digital index, and an index can't be made without scanning!
(at least on paper)