September 22, 2005

Cory Doctorow misses the point. Again.

Yet more of the same. This saddens me, really - it's an example of dogma overriding someone's ability to read and comprehend, much less argue. But Mr. Doctorow is at it again, this time over the Google Print lawsuit and resulting controversy. More after the jump. Mr. Sanfilippo, on the pro-Author's Guild Side, says regarding the BoingBoing coverage:
I don't think you're telling the whole story here. I'm the Tony Sanfilippo quoted in the AP story and who also appears in Google Print's FAQ here.

I have fully embraced Google Print for publishers, even wrote a study delivered at BEA and AAUP about using the Long Tail and Google Print to find new markets for scholarship, but this is entirely different.

Google Print for Libraries has two pretty major flaws. One being giving a digital copy of all of our works to the participating libraries where they will then most likely be used in e-course reserves without any compensation to ether author or publisher. University Libraries have an awful track record at compensating for e-course reserves and post our content frequently without any restrictions or security.

The second being Google will be profiting (through GoogleAds) on this content again without compensating the authors or publishers. Fair use should exclude commercial use. Even Creative Commons licenses (which I grant to my flikr account) gives you that option.

If we expect the production of good scholarship to be a viable, it has to be paid for somehow. I work hard to keep the price of our books as low as possible because I understand accessibility is directly related to cost, but until someone is willing to completely sponsor our work, we must protect our ability to break even.

Okay. I'm not sure I agree with all that, but okay. At the bottom of the post, Cory Doctorow retorts:

1. "University Libraries have an awful track record at compensating for e-course reserves and post our content frequently without any restrictions or security."

Universities already have a broad exemption to copyright under fair use doctrine. That they compensate authors at ALL for photocopying and web-posting excerpts from copyrighted represents a good-faith compromise, not a failure. And as to "restrictions" -- damned right universities don't use DRM!

2. "The second being Google will be profiting (through GoogleAds) on this content again without compensating the authors or publishers.

Fair use should exclude commercial use. Even Creative Commons licenses (which I grant to my flikr account) gives you that option."

Fair use does NOT require noncommercial use! 2Live Crew's Pretty Woman knockoff was a top-ten commercially released single that was still a fair use of the Johnny Cash Roy Orbison lick.

CC licenses may allow restriction of commercial use, but CC licenses are subordinate to fair use itself (as is stated in the second clause of every CC license). There's nothing in a CC license or the publication of a book that prevents commercial re-use per se (I'm sure that Tony's press's commercial books are themselves filled with fair use quotations).

3. "If we expect the production of good scholarship to be a viable, it has to be paid for somehow."

For starters, Google Print won't take a penny away from a publisher: what publishers are complaining about is that Google's figured out a way to make money from books and isn't proposing to cut them in for a share, but they're treating this new money that Google's making as though it comes out of their end.

As to supporting scholarship, how about our state-supported University system, then? Oh, and the new sales generated by Google Print? Both of these go a long way to supporting scholarship without requiring that universities be denied access to searachble indices of their own bought-and-paid-for collections.

4. "Google Print for Libraries has two pretty major flaws. One being giving a digital copy of all of our works to the participating libraries where they will then most likely be used in e-course reserves without any compensation to ether author or publisher."

If you support scholarship, how can you reject giving UNIVERSITY LIBRARIES searchable digital indices to their own collections because some of them might use them in a way that undermines your bottom line?

My problem with Mr. Doctorow's knee-jerk rejection of Mr. Sanfilippo's arguments boils down to one point. Mr. Sanfilippo nowhere said that he objected to universities posting *excerpts* under fair use. He said that Universities have a terrible track record at compensating authors for posting and photocopying their *content*. Which can be (and probably should be, although I won't put words in his mouth) read as 'content in its entirety.' The use of the phrase 'e-course reserves' indicates that 'excerpts' is not accurate. 'Reserves' are typically used for students to read materials in their entirety at the library. Excerpts are sometimes reserved, but typically full articles or book chapters are reserved. At that point, calling it a 'fair use excerpt' is stretching credibility; you're not 'citing' the work, and you're not offering it in support of your own scholarship. You're utilizing the work as a whole.

Mr. Doctorow's point would then have to be interpreted as 'the use of a work in a school library for the purpose of learning is fair use.' A logical conclusion of that would be that school libraries would not pay for books. This is demonstrably not true. The entire purpose of the reserve system in libraries is to conserve scarce resources - namely, the works on reserve - so that the students who need them the most (those to whom they have been assigned as reading) can be guaranteed that they will be available in the library and that no other patron has signed them out. This is because the library cannot simply make as many copies of the work as it would need to give them to every student to whom they have been assigned. Ergo, fair use, even as the libraries interpret it, does not mean that the library can duplicate these works as required. In fact, it usually doesn't even mean that the library can duplicate these works for use within the library, because I distinctly recall having to wait for others in the reserve room to finish with the reading before I could sign it out from the desk!

The problem with Google Print making complete copies of those works available to libraries is not that they are making 'indices' available. Mr. Sanfilippo may have a point; if, in fact, there are libraries that do have a bad track record at compensating publishers for reserve readings posted electronically, then making Google Print archives available to those libraries will, in fact, be offering them goods that they do not have presently (assuming that the archives include scans of books that they don't currently have in their collection, I am not sure of that). While deciding whether that is a violation is not my place, I think that would, in fact, be a concern.

"As to supporting scholarship, how about our state-supported University system, then?" Um, what about it? That's not the only source of scholarship. Authors are also scholars, Mr. Doctorow. At least, some of them are. Not all of them are privileged enough to be associated with a university with a large private endowment, or with a university supported by the state - and by the way, those latter are certainly not able to support independent research nearly as well as the better-funded in the former category. So I'm not entirely sure what the heck that throwaway comment has to do with anything.

Posted by jbz at September 22, 2005 12:47 PM | TrackBack

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