Google print debate

I'm working on a paper on the economics of copyright for the World Economics journal with my colleague Mark Rogers at Oxford University's Harris Manchester College. When I mentioned the copyright complications associated with Google's decision to suspend the scanning of books for their Google Print project until November, Mark asked me to write a short piece to be included in the paper. Here's a rough first draft.

The complex issues surrounding the huge Google Print project go some way towards illustrating the point as well as throwing a light on how complicated the concept of "?fair use"? can be. Google has a mission to "organise the world'?s information" in such a way as to make it accessible via Google's Internet search engine. As part of this they have embarked on a project hoping to digitise all the books that have ever been published and to make the contents of these books searchable, in a way that would bring a book to the attention of the information searcher which they might never otherwise come across e.g. a long since out-of print title. In some ways it is a bit like the Amazon "?search inside"? feature. Google are not going to make the entire contents of the books accessible to searchers, just sufficient to enable people to figure out whether accessing (through borrowing or purchasing) that book would be useful to their endeavours. The benefits to searchers are fairly obvious. The ability to track down an old treasure of a book that may no longer be commercially available or comprehensively catalogued in a library would be of tremendous use. The benefits to publishers are also clear. Books in back catalogues suddenly become visible and commercially viable again, particularly given the availability of print production technology that allows profitable production and sales of low volumes of particular titles.

However, in scanning and digitising all these books, unless the copyright has expired, Google is engaging, prima facie, in massive copyright infringement. Google are getting the books directly from the publishers and from a number of major libraries such as Oxford University's? Bodleian Library. They have been copying millions of library books in their entirety without the publishers'? permission in some cases since the beginning of the year. Google have decided to temporarily suspend the copying of books until November to give publishers an opportunity to contact them to opt out of having their books scanned and this has led to a renewed debate in the media about the merits and otherwise of the Google project.

Under the "fair use"? doctrine is it ok for Google to copy these books without permission in order to use them for a "?transformative"? purpose i.e. to make them electronically searchable? It is not competing commercially with publishers and arguably could be enhancing the market for their books but perhaps a publisher might like to create its own comprehensive contents searchable index, drawing searchers to their own websites? What happens if Google gets into the publishing business further down the line? They could potentially bias search results towards their own material.

Reasonable people and copyright scholars, interpreting the language of the copyright statutes and the precedent setting cases, can disagree about whether the Google copying is either "transformative"? or "fair use."? Some cases in the US might point towards the Google activity being permissible e.g. Kelly v. Arriba Soft Corp./Ditto.com (decision in 2003 in a dispute over making digital thumbnail copies of images available via a Web search engine). Others e.g. the MP3.com case (in 2000, a dispute over copying thousands of CDs to make them available via the Internet to people who could prove they had a legitimately acquired copy) suggest not and Google might be held liable for copyright infringement.

In the EU, unless the activity is specified as permissible, arguably it is prohibited. Under articles 2 and 5 of Copyright Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, the Google project does not appear in the list of exceptions (art.5) of permitted activity, so is presumably not allowed.

So we will not find out whether the Google Print project is permissible in law until it gets challenged through the courts, if that ever happens.

I'd be grateful for any feedback, especially on my interpretation of how the mechanics of copyright law applies here. Although I'm fascinated by the Google Print project and I think it is an excellent initiative, I'm a technologist, not a lawyer.

UK government consultancy costs

Apparently the UK government pay "IT consultants from top global firms charge on average £1,400 per day for work on UK government contract assignments"

Finance consultants get £2000 a day. At the bottom of the pile, bog standard ICT support consultants get £750 a day.

"However, as the analysis points out, the variation in average rates could also come from the amount of senior resources needed for each project. Categories demanding more senior input would attract higher rates.

For a partner or director in a global IT consultancy, the average rate is £2,258 per day, the official figures show. Their equivalent in a 'second tier' IT consulting firm would cost £1,766. A similar comparison for the average day rate of a principal consultant is £1,532 and £1,149."

I'd be happy to fill in for those senior resources for, say, £2000 a day. That's an 11.4% saving. You can't say better than that.

Secure Flight reverting to CAPPSII

Bruce Schneier, who is on the working group evaluating the security and privacy implications of the US Secure Flight passenger screening program, is very critical of the expanding scope of the program is his latest Cryptogram.

He also has a perspective on the London's Metropolitan Police shoot-to-kill policy when dealing with suspected suicide terrorists.

"The London police are now sorry they accidentally killed an innocent they suspected of being a suicide bomber, but I can certainly understand the mistake. In the end, the best solution is to train police officers and then leave the decision to them. But honestly, policies that are more likely to result in living incarcerated suspects who can be interrogated are better than policies that are more likely to result in corpses, especially when most suspects will be found innocent."

Lot's more besides, Cryptogram is always a good read.

Open Source convergence with open access

John Willinsky at the University of British Columbia has an interesting article in First Monday, on open source software, open access to research and scholarship, and open science.

Are universities currently re–entering the world on the side of a greater openness among intellectual properties or are they getting in on a greater share of knowledge–based property rights? Up to this point, the universities have fostered open science, and advanced open source software, even if both originated off campus in large measure. With the more recent of these open initiatives — open access — it falls almost entirely to the universities and their faculty to take the lead. Universities "re–entering the world" with the intent to "serve the world" would do well to support faculty participation in open access archives and journals. Open access to research and scholarship would foster a global exchange of public goods. It would extend and sustain an open, alternative economy for intellectual properties. It would strengthen the links between open source software — which is vital to providing open access to research — and the university’s long–standing tradition of open science. Given the encroachments, not to mention the temptations, of the knowledge business, this is no time to take the commonwealth of learning for granted. It falls to the members of that commonwealth to recognize and support the current convergence of open initiatives that represent dedicated efforts to ensure the future of that learning.

This is no time to take the commonwealth of learning for granted. I like that.

$100 laptop

Chinese eye $100 wireless laptop

UK game mod chip seller pursued by ESA

The founder of a UK-based games console modification company has pledged to fight the US software industry's attempt to shut down his business.

Still not buying it

Donna Wenthworth is still not buying drm.

Home Office ID shopping list

William Heath has the Home Office ID shopping list.

The Home Office has come out with plans to spend our money on an ID system. It reckons it's in the market for building and maintaining a National Identity Register; recording and matching biometrics; registration processes; IT & comms; the actual cards; plus office space, FM, corporate support systems/ services, call centre, ID verification services, accreditation of user organisations, account management and marketing (all subject to the law being passed). If you want to sell such services keep an eye on the hardcore ID web site http://www.identitycards.gov.uk

Microsoft beat Apple to the iPod patent!

Pamela Jones has been thinking about the patent reform proposals proceeding through Congress that mean it will be the first to file a patent that owns an invention, not the first to invent. And about Microsoft sniggering about getting to the Patent Office before Apple to patent an element of key iPod technology.

"Now, I don't know all the ins and outs of this particular case, but let's assume that the reports are 100% accurate, although that would be a media first, and things happened just that way, and let's think about the situation under the first-to-file rule. Microsoft wins hands down, then, despite Apple being the earlier inventor. Are you sure you like that result? Not you, Microsoft. We know you are chortling. The rest of you.

The Patent Office may look deeper and realize what they've done, and hopefully justice will be done there, or in court later, but the only reason that can happen is because so far the US is a country with a law whereby a patent can be invalidated by prior art or proof of prior invention. While nothing is right about a system where Apple will have to spend maybe millions to straighten this out, at least they have the hope of being able to do so under the current system.

My question is, how could something like this happen under the current system? The Patent Office examiner never saw an iPod? And more pertinently, Microsoft didn't know about iPods, when it filed its patent? Puh-lease. And yet, do you feel 100% sure that Apple will win? The US patent system is an unholy mess, and the law in practice has become so bizarre and arbitrary and out of sync with the way the system was set up to work that you can't even predictably rely on a just outcome. Laws are supposed to at least be *trying* to bring about a just result.

Here's my next question... did Microsoft list the iPod, like they are supposed to, when they filed for their patent? You're not allowed to hide prior art. When you are applying for a patent, you have a duty of candor, as they put it, to list all prior art you know about. iPods. We're talking iPods. Is there anyone left on the planet who hasn't heard of iPods?

It's an affirmative defense in any patent infringement lawsuit, if the patent was gained by knowingly concealing prior art. It's called inequitable conduct, and it can result in a patent that isn't enforceable. What? Microsoft? Inequitable conduct?"

EU Commission to sue premier league

Looks like the European Commission are going to take legal action against the Premier League over the lack of competition in televising games. More power to them.

When my six year old excitedly told me Arsenal were playing yesterday and asked if we could watch it "on our television" (we don't have BskyB), he was a bit put out to hear we wouldn't be able to see the match.

"Aaawww. It's not right Dad. I'm very annoyed. They shouldn't do it like that. They're naughty. They should make it so that we can watch it on our television too."

I could only respond to his determined little frown by telling him he was absolutely right.

Mind you, when we sat down to watch Match of the Day (recorded from Saturday evening for Sunday morning viewing) he was less than impressed with the quality of the football served up on the opening day of the new season. At least the earlier frown was replaced by his sparkling grin when he discovered later in the day that the Gunners had secured a comforable two-nil win against Newcastle.

To ecourage creativity get rid of the suits

Jonathan Rowe wants to get rid of the suits in the creative industries.

"We’ve all heard the justifications for the emerging property police state – the copyright term extensions, the international jihad on infringers, the government mandating of anti-copying technology and the rest. It’s to protect the “creative process,”, the inspired artist laboring away in a basement or garage.

To listen to the whining from the film and recording industries, it is a wonder that a Charlie Chaplin ever bothered to pick up a camera, or Frank Sinatra to croon a song, seeing that the term of copyright was much shorter in their days than it is now...

Once in a while the truth slips out, which it did recently in GW Magazine, which is published by George Washington University in D.C. The magazine (Spring/Summer 2005) did a profile of Dan Glickman, the former Congressman and Agriculture Secretary and a G.W. alum, who has succeeded Jack Valenti as head of the Motion Picture Association of America. The piece quotes Glickman on the industry’s crackdown on copying. “The average movie today costs $103 million to make,” he says, “and six out of 10 of them don’t make that money back. Making movies has become incredibly expensive — and that’s why preventing piracy has become so crucial.”

It’s not about a creative process but rather a non-creative one, with bloated budgets and overpaid and often under-talented stars. The push in other words comes from the business side of the house – the side that often pulverizes the very talent the lobbyists in Washington are claiming to nurture."

The 2004 election conspiracy theory

Project censored have a report from an academic in California, Dennis Loo, who believes that George Bush won the 2004 election with the help of widespread fraud. There certainly were anomalies in the vote but I'm not convinced there was the kind of centrally orchestrated fraud theorised here. Some very smart evoting experts monitored the election and picked up on most of the issues mentioned and others. In spite of the problems, though, the likes of Ed Felten, Avi Rubin and Bruce Schneier have never suggested that the election was stolen, as believed by Dennis Loo.

Certainly there remain unanswered questions and the explanations thus far offered for some of the inconsistencies don't hold water. The sum of a series of unexplained difficulties does not always amount to a central conspiracy, however. Though there would seem to be plenty of merit in investigating local anomalies in order to track down the real causes. Complex processes will always exhibit complex localised problems and folks like Rubin and Felten have gone to great lengths to explain the issues with introducing electronic voting machines into the election process. Their predictions the the kind of problems we would see following the inappropriate deployment poorly designed version of these machines will to some extent have been borne out in the 2004 election. Getting to the root of the actual causes in the various localities in the live election will be important so that the process can be repaired for the next time.

Teachers first for ID cards

According to the Sunday Times, the government are considering making ID cards compulsory for teachers and childcare workers "years before they become mandatory for everyone else"