Why Google’s plan to scan every book in the world was halted

Google had plans to scan every book but the project hit some legal bumps along the way and now the company has “a database containing 25-million books and nobody is allowed to read them”:

Google thought that creating a card catalog was protected by “fair use,” the same doctrine of copyright law that lets a scholar excerpt someone’s else’s work in order to talk about it. “A key part of the line between what’s fair use and what’s not is transformation,” Google’s lawyer, David Drummond, has said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.”…

It’s been estimated that about half the books published between 1923 and 1963 are actually in the public domain—it’s just that no one knows which half. Copyrights back then had to be renewed, and often the rightsholder wouldn’t bother filing the paperwork; if they did, the paperwork could be lost. The cost of figuring out who owns the rights to a given book can end up being greater than the market value of the book itself. “To have people go and research each one of these titles,” Sarnoff said to me, “It’s not just Sisyphean—it’s an impossible task economically.” Most out-of-print books are therefore locked up, if not by copyright then by inconvenience…

What became known as the Google Books Search Amended Settlement Agreement came to 165 pages and more than a dozen appendices. It took two and a half years to hammer out the details. Sarnoff described the negotiations as “four-dimensional chess” between the authors, publishers, libraries, and Google. “Everyone involved,” he said to me, “and I mean everyone—on all sides of this issue—thought that if we were going to get this through, this would be the single most important thing they did in their careers.” Ultimately the deal put Google on the hook for about $125 million, including a one-time $45 million payout to the copyright holders of books it had scanned—something like $60 per book—along with $15.5 million in legal fees to the publishers, $30 million to the authors, and $34.5 million toward creating the Registry….

This objection got the attention of the Justice Department, in particular the Antitrust division, who began investigating the settlement. In a statement filed with the court, the DOJ argued that the settlement would give Google a de facto monopoly on out-of-print books. That’s because for Google’s competitors to get the same rights to those books, they’d basically have to go through the exact same bizarre process: scan them en masse, get sued in a class action, and try to settle. “Even if there were reason to think history could repeat itself in this unlikely fashion,” the DOJ wrote, “it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation.”

Out-of-print books with uncertain copyright status scuttle what could be one of the great treasure troves of information? This suggests we still have a ways to go until we have legal structures that can deal with the information-rich and easily accessible online realm. If a deal could eventually be worked out for books, what about older music, art, and other cultural works?

A related thought: having all those books available might indeed change the academic enterprise in several ways. First, we could easily access more sources of data. Second, we could potentially cite many more sources.

The most profitable song is “Margaritaville”

Copyrighting the words of “Margaritaville” as well as trademarking the name has been quite lucrative for Jimmy Buffett:

To think that all of this poured forth from a goofy, three-chord song—a mere 208 words, roughly half the length of this article—written about being lazy and getting drunk. But as Buffett’s Parrothead empire continues to spread, one can’t help but wonder whether a more lucrative song exists. “If there is anything on the same scale as a Margaritaville, it’s not a song—it’s a motion picture,” says Robert Brauneis, a professor of intellectual property at the George Washington University Law School and author of a research paper on Happy Birthday to You, which continues to generate upwards of $2 million a year. “When you’re talking about hundreds of millions of dollars, you have to think in terms of Star Wars, Winnie the Pooh, or Transformers. That’s probably in the same order of magnitude.”

As a recording, Margaritaville doesn’t post stratospheric numbers. After debuting on Buffett’s 1977 album Changes in Latitude, Changes in Attitude, it peaked at No. 8 on the Billboard 100 charts. According to the 2012 BBC documentary The Richest Songs in the World, Margaritaville doesn’t crack the top 10, which is populated by three Christmas songs. The two highest-ranking pop songs are You’ve Lost That Loving Feeling, by the Righteous Brothers, and Yesterday, by the Beatles. (No. 1 was Happy Birthday to You.) “If you want to get technical, there are two Margaritavilles,” says Brauneis. “There’s the copyright that protects the song, which is valuable because of the stream of income. Then there’s the trademark that has developed out of the song’s title, and legally that’s a different piece of intellectual property.”

Of course, this means the song and the brand are separate legal entities and could, in theory, be sold separately. But this isn’t the case. If you want to check Buffett’s tour dates, there’s no JimmyBuffett.com—there’s only Margaritaville.com, where his music career and the rest of his empire are seamlessly melded into one site.

“From a larger business perspective, when you combine the two and look at what the song stands for as a lifestyle and as a branding vehicle,” says Brauneis, “it’s worth far more than Happy Birthday. I can’t think of another example of a song that has that total impact.”

The key here is not really the song itself but the business opportunities the song has led to. This is spectacular branding: Buffett and others have created a sellable lifestyle out of the song and there has been a willing set of consumers willing to eat at the restaurant, buy merchandise, and go to concerts. It is hard to imagine a “Yesterday” themed restaurant – the song is really sort of sad – or one centered around “Happy Birthday” as this is an event that only comes around once a year. Indeed, it would be interesting to see how other artists have tried to capitalize on individual songs and the outcomes of those ventures. Is there any other song that could potentially lead to such financial opportunities? Is this a future source of income for musical artists?

Republicans propose copyright reform

Techdirt links to a remarkable Republican policy brief on copyright reform:

The purpose of copyright is to compensate the creator of the content: It’s a common misperception that the Constitution enables our current legal regime of copyright protection – in fact, it does not…[L]egislative discussions on copyright/patent reform should be based upon what promotes the maximum “progress of sciences and useful arts” instead of “deserving” financial compensation….

Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value.

This has the potential to mark the beginning of a huge political shift on intellectual property issues. Heretofore, most copyright reform advocates have pursued a judicial strategy, trying to persuade courts to narrowly read (or overturn) sweeping statutory language. By and large, courts have declined to limit copyright laws in this fashion. If those laws were actually changed, however, that would compel different outcomes.

A policy brief is not even a bill, let alone a law. But the conversation has started.

RIAA: all of everything are belong to us

Correction:  Techdirt is now reporting that this story is bogus and that the RIAA never threw out a number in the trillions.

The Recording Industry Association of America sued peer-to-peer filesharing service Limewire for copyright infringement years ago, and it successfully shut down that service back in 2010.  Now, the RIAA says it’s owed a few dollars in damages for those years of Limewire’s infringement.  $72 trillion, to be exact:

According to documents recently filed in the U.S. District Court for the Southern District of New York, the RIAA was asking for damages of about $72 trillion dollars, a figure that the judge in the case said is “absurd.” Judge Kimba Wood wrote in a recent decision that, “An award based on the RIAA calculations would amount to ‘more money than the entire music industry has made since Edison’s invention of the phonograph in 1877.'”

The estimated wealth of the entire world is about $60 trillion, meaning that the RIAA should have known how outlandish its claims were to begin with.

A modest quibble with the AV Club’s figures:  the CIA puts Gross World Product (the combined GDP for all countries on Earth) a bit higher, at $70.16 trillion for 2011.  But any way you slice it, the RIAA thinks that copyright infringement due to one (now defunct) company entitles it to the value of everything in the world.

Literally.

Our world: the Beatles can get $250k for the use of an original recording on a TV show

I’ve seen/heard several discussions of the use of the Beatles song “Tomorrow Never Knows” to close the most recent episode of Mad Men. Here is some of the story behind how the show was able to get permission to use the song – for $250,000:

 “It was always my feeling that the show lacked a certain authenticity because we never could have an actual master recording of the Beatles performing,” Matthew Weiner, the creator and show runner of “Mad Men,” said in a telephone interview on Monday. “Not just someone singing their song or a version of their song, but them, doing a song in the show. It always felt to me like a flaw. Because they are the band, probably, of the 20th century.”…

Near the end of the “Mad Men” episode, titled “Lady Lazarus” and written by Mr. Weiner, the advertising executive Don Draper (played by Jon Hamm) finds himself struggling to understand youth culture and is given a copy of the Beatles album “Revolver,” a new release in the summer of 1966.

But instead of starting his listening experience with the album’s acerbic lead-off track, “Taxman,” Draper instead skips to its final — and, shall we say, more experimental — song, “Tomorrow Never Knows,” contemplating it for a few puzzled moments before he shuts it off. (That psychedelic song, with its signature percussion loops and distorted John Lennon vocals, also plays over the closing credits of the episode.)…

To win the company’s approval in this case, Mr. Weiner said, “I had to do a couple things that I don’t like doing, which is share my story line and share my pages.” He added that he received the approval from Apple Corps last fall, about a month before filming started on the episode.

Several thoughts:

1. Does this show that the Beatles still matter? On one hand, yes: the creator said he wanted to have an authentic Beatles song on his show. On the other hand, this is a show about the 1960s – it is a period piece, a “retro cool” show, not a show about the modern day that would show the current relevance of the Beatles. The creator suggests they are the band of the 20th century, inviting questions about who might be the artist of the 21st century.

2. Contra #1 above, the Beatles can still get $250k for the use of their song. Is this about the greatness of their work or because they have been so tight in who is able to license their music? Are the copyright holders of the Beatles music (some combo of Michael Jackson’s estate and Sony?) simply waiting for McCartney and Starr to die so they can reap a windfall from licensing?

3. The article doesn’t discuss this but the selection of “Tomorrow Never Knows” is particularly interesting. This song would never make it on a Beatles “greatest hits” album (it is not on the 1 album or the Red or Blue albums of the 1970s). It is buried at the end of the Revolver album. At the same time, many books and critics acknowledge that this song is a turning point in the group’s career. It was actually the first recorded song for Revolver, an album noted by many critics as the greatest album (or one of the top 3) of all time. It was a sharp departure from earlier Beatles music: in a few short years, the group had moved from “I Want To Hold Your Hand” to Lennon singing about ideas from The Tibetan Book of the Dead with all sorts of studio effects like backward guitar around him. My guess is that the playing of song means that Don Draper’s is about to take an interesting turn (along with the rest of the 1960s).

4. A question about copyright: will the Beatles music ever become part of the public domain? It would be a shame if it does not.

5. How long until we live in a world when nobody knows about or cares about the Beatles? I’m particularly interested in the changes that will happen when the Baby Boomer generation fades away…

Lost Star Terk episode was to feature Milton Berle as a “messianic sociologist”

I’ve noted before that sociologists are rarely featured in television shows or in movies. Alas, it looks like CBS won’t allow the creation of a new online Star Trek episode based on a long-lost script featuring Milton Berle as a “messianic sociologist.”

Last fall an unused script for the cult 1960s television show turned up after being forgotten for years. Its author, the science-fiction writer Norman Spinrad, announced that it would become an episode of a popular Web series, “Star Trek New Voyages: Phase II,” which features amateur actors in the classic roles of Capt. James T. Kirk, Mr. Spock and other crew members of the starship Enterprise.

But then another player stepped in: CBS, which said it owned the script and blocked a planned Web production of it. Trekkies were appalled. “These executives should be phasered on heavy stun,” said Harmon Fields of Manhattan, who called himself “a ‘Star Trek’ fan of galactic proportions.”…

The story begins in 1967, after Mr. Spinrad wrote an acclaimed episode of the original series, “The Doomsday Machine.” “I did ‘The Doomsday Machine’ fast,” Mr. Spinrad, 71, said by phone from his home in Greenwich Village, “and then they said: ‘We’re in a hole. Can you write something in four days?’ ”

The result was “He Walked Among Us,” which the producers envisioned as a dramatic vehicle for the comedian Milton Berle. His character is a well-meaning but messianic sociologist whose conduct threatens to destroy the planet Jugal. The crew of the Enterprise must remove him without disrupting the normal development of the culture.

Spinrad’s script was set aside and he recently made it available online.

Milton Berle as a “well-meaning but messianic sociologist” sounds very intriguing. How much did Spinrad intend this as commentary about sociologists and social policy in the late 1960s? Perhaps sociologists should be glad this show was not made as it probably doesn’t put sociologists in the best light. In fact, it sounds like it could feed into some common stereotypes of sociologists: they may care about some important issues but in the end they are academics who don’t know how things work in the real world. At the same time, how many sociologists are Star Trek fans and would love to see their discipline discussed in an episode?