Shimenawa

Legislation and Litigation: Vanderbilt News and Google

In the Spring of 1971, a novel screening of recorded TV footage was held in the Senate Office Building at the request of the Republican National Committee. That congressional screening, and a few others that were conducted later, inaugurated a set of events that ultimately contributed to one of the most significant rewritings of copyright legislation in the last 50 years (the 1976 Act), and the development of important Section 108 exceptions for libraries and archives.

The screening of videotaped recordings from major TV broadcast news stations on the U.S. government supported Laos incursions by South Vietnam’s Army was compiled and produced by a then little-known initiative housed at Vanderbilt University in Tennessee called the Vanderbilt Television News Archive (VTNA).

VTNA’s story began in 1968, when its founder, Paul Simpson, began the systematic recording of the three major U.S. television networks through their local affiliates. Uninterrupted to the current day, VTNA continues to record, collect, index, and make available national news broadcasts, preserving them in a unique collection available via a lending program to anyone in the country, merely at the cost of duplication or recording onto DVDs.

Within a few years of its founding, VTNA would wind up enmeshed in a skein of litigation and legislation. Yet, VTNA’s valiant efforts to protect public access yields an accidental and instructive example for how positive legislative outcomes can emerge in a fight against attempts to leverage court rulings benefiting private parties, side-stepping Congressional engagement.

At the Internet Archive, we believe there is an opportunity for a similar and critical analogue to emerge out of the proposed class action settlement in the Authors Guild, et al v. Google case placed before the SDNY District Court concerning Google Book Search.

History Lessons

The utility of the VTNA’s recording of TV news — and in the eyes of conservative government representatives and the Nixon White House, capturing the alleged liberal biases of the New York media — was apparent even before the landmark 1971 screening. VTNA attracted several attempts to legislatively enshrine protections for its activities, ultimately inspiring two discrete bills that wound up incorporated into the later 1976 Copyright Act: a mandate for a national broadcast archive and an exemption from liability against infringement for libraries and archives recording broadcast content.

In an important new work on the history of home video, Inherent Vice: Bootleg Histories of Videotape and Copyright, Lucas Hilderbrand discusses the impact of new technology on interpretations of rights, piracy, and property. Hilderbrand includes an entire chapter on the history of VTNA’s stressful journey along the parallel tracks of litigation and legislation, observing that “Copyright became the means of both challenging and ultimately ensuring public access to television records.” (N.B.: I am working from pre-publication galleys generously provided by the author, and used here with his permission).

Contemplating VTNA’s founding in the late 1960s, Hilderbrand comments: “Thus nearly a decade before fair use (Section 107 of the copyright act) would provide the basis of the Supreme Court’s ruling that off-air recordings for private use must be permitted, off-air videotaping directly shaped legislation of the exemptions for libraries and archives. Although distinct from Section 107, Section 108 can be seen as the logical, institutional extension of fair use.”

In the 1960s and 1970s, CBS News, the most watched, revered, and influential news broadcast in the U.S., kept its own semi-public (restricted access) archive. CBS believed that VTNA was recording and collecting news broadcasts without permission or license. After several attempts to force VTNA to license its own recordings, CBS sued the archive for copyright infringement in 1973, alleging that the archive re-edited and leased its broadcasts to users, appropriating its content.

CBS maintained that a private solution was the best approach for broadcast news access; the situation did not require intrusive legislative action. As late as Congressional hearings in 1975 on the draft revisions to the copyright law, CBS vice president and general counsel Robert Evans testified, “Moreover, the problem addressed by these unusual provisions is not one that requires Congressional action because it is being resolved by private initiative.” Of course, as Hilderbrand notes, the private initiative that CBS advocated was the network’s, not the VTNA’s. Hilderbrand comments further:

Despite CBS’ efforts to establish television news collections through [its own] public archives, Vanderbilt maintained that its operations were essential to democratize user access to the tapes and to maintain the availability of the other networks’ news programs. Despite being a private university, Vanderbilt refused to cloister tapes in the ivory tower and adamantly supported the broadest feasible scenario for public access.

After a few modifications to the proposed copyright legislation before Congress, and a reconciliation in which the Senate accepted several House modifications (including in Sections 107 and 108), President Ford signed the U.S. Copyright Act of 1976 into law on October 19. In early December, CBS requested the dismissal of the lawsuit without prejudice, and the court officially dissolved the case on December 20, 1976.

Google Book Search

Today, in a case with some striking similarities, Google, the AAP, and the AG hope to rewrite copyright through a private, judicially approved agreement. As Marybeth Peters, the U.S. Registrar of Copyright, observed at the Columbia Law conference on the settlement, “The question is: When you have a private agreement, where there are private solutions, that are in the nature of legislative action … is this a good thing?” Ms. Peters also quoted Robert Clarida, then Chair, Committee on Copyright and Literary Property for the NYC Bar as stating, “The settlement in effect provides a privately legislated set of rules governing relations between an entire copyright industry and the world’s largest search engine”.

Orphan works legislation almost passed in the last session of Congress. It could pass in this session. As the Justice Department begins an inquiry into the settlement, we have an opportunity to consider anew the proper wisdom of a legislative cure for a problem that Google originally attempted to address in 2004: providing the greatest possible access to out of print books that are potentially in-copyright. Unfortunately, that initial effort has turned into a radically reshaped proposal: a court-approved monopoly for Google, and a bad deal for authors and publishers.

The complex issues of rights registries, access to orphan works, elaborating fair use in a digital age, and maintaining international compliance should be the province of public discussion. The goals of Vanderbilt’s archive — “the broadest feasible scenario for public access” — must be the primary consideration that drives a public and legislative solution, instead of a privately negotiated settlement for the benefit on a single corporation currently under investigation for antitrust.

At the Columbia conference, Google’s chief counsel for the Book Search project, Alex Macgillivray, loudly noted Google’s staunch support for orphan works legislation. Well, now is the time. Let’s halt the push for a court approved, private settlement that gives Google a monopoly on the largest digital library of books in the world. Instead, let’s launch a considered investigation of what the nation deserves, in a dialogue that is open and inclusive of all the sectors of our country that have a stake in defining the 21st Century of books, and the rights of readers.

ALA has questions for Google

The ALA office reports that Google has been calling members, seeking 1-1 appointments to discuss the Google Book Search settlement. Once again Google goes individually to libraries, seeking to reassure. The ALA suggests that if a library does meet with Google, it ask some hard questions, and try to get some answers beyond verbal assurances.

Since I have many Google friends, I am inviting them to respond here to these questions from the ALA, which I am reproducing below.

On the topic of equitable access to information, and more specifically pricing, the proposed settlement allows for differential pricing for different categories of institutions for subscriptions, why? The settlement states institutional subscription pricing will be “based on comparable products and services.” Since no other comparable product or service currently exists, how will Google keep from disparities in access to its product if subscription prices are, or become, too expensive? Finally, the Book Rights Registry established by the proposed settlement (and comprised of equal numbers of representatives for the authors and publishers), has been granted the oversight to settle disputes over pricing. What, if any, mechanism would be available to libraries (as primary customers of the product), and individual consumers to dispute pricing?

With respect to patron privacy — what assurances, aside from a verbal commitment, does the library community, library patrons and the public interest have that their privacy rights will be protected? The proposed settlement itself is silent on the topic of patron privacy rights, why? Were the three private entities unable to reach agreement, in their closed deliberations, on a privacy policy?

Finally, with regard to intellectual freedom, the proposed settlement allows Google to omit up to 15% of in-copyright, not commercially available books it has scanned from libraries. What criteria will Google use to determine which books are omitted from the product? Will Google identify the books omitted and provide any explanation as to why? How will Google keep from engaging in censorship as it is conceivable and even likely that both domestic and international pressure will be exerted upon them to censor books?

Hopefully, Google will provide answers to these questions. Of course, there are many more than these.

Keeping the data open

Something that I hadn’t previously considered for the proposed Books Rights Registry (BRR) in the Google Book Search settlement was the role that it might play in imposing data manipulations and metadata enrichment, and then subsequently allocating their costs — whether real or transactional — among subscribers, consumers, and other participants (including authors and publishers).

For example, theoretically, the BRR has the ability to impose ISBNs and other identifiers on orphan works that lack them. ISBNs could be provided in a special grant by EDItEUR for this purpose, with the costs apportioned among rightsholders and consumers.

Some of these data manipulations would be considered useful enhancements, but there also exists the possibility that they could be enacted without adequately broad engagement or consideration of the data flow and management issues among publishers, libraries, and consumers, particularly as they evolve into the future. A related risk is that non-traditional, but potentially higher-return options, might not be endorsed. It makes the necessity for coordinating stakeholders in metadata issues among all of these communities increasingly critical.

There is currently no mechanism in the BRR for community coordination to be imposed. There is mention in the settlement only of an advisory board, but not only has it not been named, it currently has no power of compulsion. I believe there is a default to good-will in this area, but it would be better for conversations among parties to be coordinated openly.

Additionally, these concerns strongly agitate for the continued maintenance and availability of open data for bibliographic and rights data, such as the Internet Archive’s Open Library (OL). Although OL has been poorly accessible through APIs, the necessity of encouraging the unimpeded flow of descriptive data without use restrictions is vital for maximizing the continued evolution of books and publishing, and our understanding of how and what we read. In conjunction with the OL, ensuring the availability of all known rights attributes associated with an object, particularly as a package, will be requisite. These data should be accessible in XML for easy machine consumption, and not provided only through user driven search interfaces.

One of the worries of the settlement is that there are a great many potential new sources of leverage and engagement that could leave even current stakeholders in the agreement uncomfortable with the consequences.

What about the dissertations?

As people consider the Google Book Search settlement proposal in increasing depth, more and more questions seem to crop up. Some of them do not have simple answers. Today, a colleague from a law school asked me whether dissertations would be considered as “Books” under the terms of the settlement. Good question.

I am most definitely not an expert on dissertations: I’ve always shied as far away as possible from discussions relating to ETD programs. In the context of the settlement, their presence had not really occurred to me. As someone suggested, this is probably just one of hundreds of cases of some consequence that were never explicitly thought about.

So what about dissertations? Are they covered under the settlement? The answer might be “yes” — at least, much of the time. Let’s turn quickly to the “Book” definition in the Settlement, §1.16:

“Book” means a written or printed work that (a) if a “United States work,” as defined in 17 U.S.C. § 101, has been registered with the United States Copyright Office as of the Notice Commencement Date, (b) on or before the Notice Commencement Date, was published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, and (c) as of the Notice Commencement Date, is subject to a Copyright Interest.

The quick consensus from those that I asked is that dissertations are usually considered “publications”, particularly if one assumes that UMI services satisfy the condition of public distribution. Proquest states:

ProQuest UMI Dissertation Publishing has been publishing dissertations and theses since 1938. In that time, we have published over 2 million graduate works from graduate schools around the world. We have over 700 active university publishing partners, and publish more than 70,000 new graduate works each year.

A 2000 CNI taskforce update [PDF] by the Library of Congress, discussing digital deposit of dissertations, observes:

Each year, UMI Dissertations Publishing receives over 40,000 U.S. Ph.D. dissertations and Masters’ theses for publication. As part of its services, UMI provides copyright registration through the U.S. Copyright Office for those authors desiring registration. An average of 17,000 to 20,000 authors take advantage of this service each year, making UMI the largest single contributor of copyright registration applications to the U.S. Copyright Office.

Registration is not necessary to secure copyright, but it does offer certain protections; in the settlement context, it is required to meet the definition of “Book”. Regardless of the initial registration, one would expect that at least those published up until 1963 are Public Domain (with no subsequent renewal of copyright), but they would have to be claimed as such by Google as Public Domain Works (See §3.1 Identification, Digitization and Use of Books. “Google shall identify to the Registry books that it has determined to be Public Domain Books pursuant to the process set forth in Attachment E (Public Domain) and for which Google wants the safe harbor described in Section 3.2(d)(v)(3) (Safe Harbor). For each such book, Google shall provide the supporting reasons and information that Attachment E (Public Domain) requires.”)

Some additional number of these dissertations may simply not be available (they might be withheld from public consultation for a variety of reasons). One would not necessarily know that by looking at thesis documentation, but they would not be part of the settlement presumably.

One also has to wonder if dissertations are “Commercially Available”. Those that are available through print on demand only, might not be so classified. (See §4.7 New Revenue Models. “POD copies of Books distributed by third parties. A Book’s availability through such POD program would not, in and of itself, result in the Book being classified as Commercially Available.”). However, many dissertations are available through the licensed Dissertation Abstracts service, but Google would have no way of knowing a priori which dissertations were available, unless they subscribed to the service.

There are probably many other convolutions, but I must turn to my readers for help and clarification.

Tags: copyright, dissertations, Google Book Search, Publishing

Re-thinking the (curated) book sale

Last night, my family was having dinner at a friend’s house, whose daughter attends the same school as my own. Our friends were lamenting their volunteering for the annual school book fair, held in the Fall. It is a good effort, encouraging reading among the children, with all profits are turned over for the school library’s acquisition budget. Although a long way off, however, it already seemed daunting.

Traditionally, the school has partnered with Scholastic, which makes their list available, and a set of books are physically delivered and then sold on site. If titles run short, more are Fedexed during the week in which the book sale is running.

No one wanted to replicate that again this year. Scholastic titles are usually not literary landmarks, and their commercial partners (e.g. Disney) produce overly commercialized tie-ins. The decision had already been made to partner with a Bay Area independent bookstore, but this brought up interestingly complicated logistics.

Obviously, the bookstore would have to select – curate – a set of books that would be offered to the kids across the school’s grades (K-8, in our case). How would the books get there? What if some titles ran short? Who would return the unsold? Control the inventory? Run the actual merchandising during the week? Amass the wish-lists by the school teachers so they could benefit from parental donations? Entice volunteers to staff the booths for 4 whole days? It seemed crazy.

So we began to try to re-invent it. Why not simply have display copies available on-site for people to browse? The bookstore (Hicklebee’s in San Jose) already supports rudimentary wishlists. Why not create an online ordering form? Let the kids browse the titles, generate lists of their preferred books, and then allow parents to order against the list per each family’s budget? The revenue would be collected by the bookstore, and the books could be sourced and shipped direct to the School, or alternatively collected at the bookstore and driven up to the School, for local distribution.

For this to work, the bookstore would have to support a custom ordering page against a set of chosen titles, with orders aggregated and then released to a fulfillment agent at the conclusion of the weeklong booksale. It shouldn’t be that difficult … is it? In general, the more finely granular selling of books is something that we should be trying to support by not just Amazon, or Google, but independent bookstores. Hicklebee’s is a member of IndieBound — do they provide support for this kind of merchandising?

Somewhere in this is a vision for how we “break-apart” the bookstore. For as long as it is desirable to sell paper books, we need to figure out how to take advantage of networks and the far deeper reach that point of presence can mean in a web 2.0 world. Local customization of a bookstore to a school — that should be easy.