Lessig is understandably excited about this case. It relies on the little glimmer of hope that Justice Ginsburg planted in Eldred v. Ashcroft, that the First Amendment really does have something to say about what Congress can do when it tinkers with the Copyright Act, but not in most cases. She said that the case of Eldred was not one where Congress had changed the traditional contours, so the “internal safeguards” such as fair use and first sale, were sufficient to keep things kosher with the Constitution. Et voila, Eldred lost. But now the court in Golan has indicated that a law that takes works long in the public domain, works that people have likely counted on being able to use freely, and just magically grants them a copyright lasting for the term they would have had if their owners had done everything they were supposed to do to get such a copyright (copyright notice, for example), goes too far. The Uruguay Round Agreements Act (URAA) from the General Agreement on Tarriffs and Trade (GATT) is that law.

All that said, there’s still that limitation: it is unconstitutional to the extent it conflicts with reliance on public domain status taking place before the URAA was passed and/or went into effect. That isn’t quite the same as saying that it is simply unconstitutional. And this is just round 1. The decision will be appealed, no doubt. But Lessig is right. We will no doubt see more of this case. At least it suggests that there is a limit to what Congress can do for copyright owners at the expense of some, if not all members of, the public.

The January 5 NYT article by Motoko Rich, Google Hopes to Open a Trove of Little-Seen Books [sorry, I would link to it but NYT insists I register or login to access the article (it's 8:14 PM) and I don't do that kind of thing], included a really nice statistic that hints at one important aspect of the story’s ending. Or maybe it’s just a beginning. The stat carries a lot of the load for his story about tapping “a trove of information that had been locked away on the dusty shelves of libraries and in antiquarian bookstores.

According to Dan Clancy, the engineering director for Google book search, every month users view at least 10 pages of more than half of the one million out-of-copyright books that Google has scanned into its servers.

Google’s book search “allows you to look for things that would be very difficult to search for otherwise,” said Mr. Zimmer, whose site is visualthesaurus.com.

A settlement in October with authors and publishers who had brought two copyright lawsuits against Google will make it possible for users to read a far greater collection of books, including many still under copyright protection.

Read that again, the part that says that “every month users view at least 10 pages of more than half of the one million out-of-copyright books that Google has scanned into its servers.” Wow. Think about what that means for the life of most books on our “dusty shelves.” Actually, we don’t let them get dusty, at least not so far.

The overwhelming majority of our books can start up their long-silent engines and back out of the dead ends their normal commercial lives rolled them down. People are searching online, books are coming up high enough in the search results that people see them, and they are clicking on those book links and using even public domain works. I’ll dare to say, people seem to be reading public domain (ie, really, really, really old) books. At least 10 pages of over 1/2 of the million public domain books so far digitized — every month.

So, if you work in a library, take an old book off a shelf, any old book, and open its front cover and see how often it was checked out in the last 5 or 6 decades. Pick another book. And another. You can see where I’m going with this. I think these GBS “uses” are a wonderful thing for books, for their readers, their authors and, when we can get in-copyright works, their publishers or other copyright owners.

But Rich goes on to note how troubling this may be as well:

Some scholars worry that Google users are more likely to search for narrow information than to read at length. “I have to say that I think pedagogically and in terms of the advancement of scholarship, I have a concern that people will be encouraged to use books in this very fragmentary way,” said Alice Prochaska, university librarian at Yale.

Yale’s many libraries are fantastic places and all its librarians are lucky to work there. Alice, I think I understand what you are saying here, but look at those stats. People may not be reading Jane Austen cover to cover in GBS (maybe they are, maybe they are not), but isn’t the possibility that a book that rarely would have come onto the radar screen at all has such an amazing chance to be found by someone and used for something, isn’t that a good thing?

Surely Alice does not mean that books should be enjoyed a certain way or not at all. Maybe she worries that the numbers of people who read cover to cover will diminish. Or that people will “cite” a book for something that a more thorough reading might not support. But I don’t think that’s how it’s going to work. Exposing books to search brings them to the attention of a much bigger audience then they could ever have on our shelves. Among the many people who will discover a book on GBS, a percentage, let’s say a small percentage, will not just look at 10 pages. A small percentage will download the whole book and read it, or substantially all of it, cover to cover. These are people who never would have known the book existed except for having found it in a search for something else on Google. We will add these readers to the ones who come to the book from other, more traditional, perhaps scholarly, places. Scholars must stay within ethical bounds when they cite authority for other reasons besides the inability to find material with a narrow search. So, if a much larger percentage of those GBS readers who discover the book will not read it cover to cover or cite it at all, so what?

Neither the book’s author nor the librarian who collected and protected it for decades can know what use someone not of our time, or our culture, or our values might have for a book that the author wrote to be read cover to cover. But we can take pleasure in the idea that people will use books in ways we never imagined. Isn’t anything better than being parked and forgotten by most everyone at the dead end?

I really like how nicely this ap demonstrates the value of a freely available and accessible digital public domain. All of the materials apture pulls together are in the public domain, so the barriers to its entry into this market are a lot lower than they would be if apture had to seek out and negotiate licenses to use every little shred of information about our representatives. Very good example of the idea that free can be the basis of a lot of value.

Google Book Search Example

As I commented on Collectanea at the time that the latest Congressional effort to deal with orphan works failed, now it’s time to try a process other than legislative “compromise.” Public Knowledge did a fabulous job of describing the horse trading that goes on behind the scenes to try to get legislation past the numerous barriers. PK still holds out hope that next session the bills will come to reflect the perfect combination of freedom to use orphan works and protection for the interests of those copyright owners caught in the cross-fire between new technological capabilities and old-fashioned sloppiness about attribution and keeping contact information about owners up to date. “Who cared?” “Who knew we needed to care?” “We didn’t care — we didn’t need to.” My how things have changed.

So, Google Book Search is freeing itself from the constraints of a gazillion billion dollars worth of lawsuits and walking off into the bright sunshine of ‘tomorrow’s another day,’ arm and arm with the publishers and authors who still disagree with it about whether Google’s original plan was fair use, but hey, that plan is so 2004. It’s 2008 and almost 2009 and we’ve got some books to find, browse, read and download, some to buy and download (and pretty soon maybe buy in other ways besides download). So a new approach to orphans, at least orphan books. And as PK authors point out, this is just about books. They note we may still need legislation for the other kinds of media. But I give the markets a much better chance of success than legislation. Not just success as in, “oh, you actually reached an agreement that doesn’t allow one side to purposely cripple the other,” but success as in, “oh, you actually reached an agreement that will work, in practice, to enable identification and use of orphan books.” Not that it will be easy and without fits and starts (I have expressed my own concerns about the lack of transparency in the Book Rights Registy), but I think these book guys and gals have a much better sense of the benefits for everyone than the gangs that conspired to torpedo the legislative effort (and are therefor motivated to make it work, rather than motivated to make it not work). Well, let’s see what happens. At least something will happen.

Two years ago, Representative Smith tried unsuccessfully to craft a bill that would deal with the issues. Now the effort is being undertaken anew. I blogged about it at Collectanea earlier today and would refer our readers there for links to other sites that are registering their optimism and concerns. A new bill has not yet been introduced, but it is reportedly going to be introduced as early as this week.

The text of several volumes of this series from the Bodleian and Harvard Libraries are now available online. Er…were available. Before Spring Break, an incomplete run of 23 volumes from the years between 1856 and 1908 were available in Full View. Don’t ask me what happened to these texts; maybe I just dreamt of them.

You can imagine the difficulties dealing with a series that has six formal titles. As listed in OCLC Worldcat, this series has been cataloged as “Collecção das leis do Brazil; 1808-21; Collecção das leis do Imperio do Brazil; 1822-Nov. 14, 1889; Decretos do governo provisorio da Republica dos Estados Unidos do Brazil; Nov. 15, 1889-Feb. 13, 1891; Collecção das leis da Republica dos Estados Unidos do Brazil; (varies slightly); Feb. 14, 1891-19.”

Nevertheless, in whatever manner these sets are cataloged, every one of the volumes is in the public domain. Under Law 9.610 of February 19, 1998, the most recent Brazilian legislation that fully addresses author rights, the texts of treaties, laws, decrees, regulations, judicial decisions and official enactments are EXEMPT from copyright.

The University of Texas owns a complete set of the annual publications dating back to 1808. The series consists of more than 580 volumes that now grace 75 linear feet of shelves in the Benson. Only twenty-three other libraries, most of them in research institutions, listed some of the same titles among their holdings. Wouldn’t it be nice to have all these texts available online? All the titles in the Benson Latin American Collection were sent out for digitization last October (2007) but have not year appeared on Google Book Search. Maybe it is just a matter of time until Google can sort out the complicated bibliographic information for this set of books and put them all on line. Be patient.

Do stay alert to the titles opening up on Google Book Search. Meanwhile, take a look at the Central Library of the Tribunal de Justicia do Estado da Bahia That library maintains an online database of the series but the listing does not yield full-text. Other websites also provide bits and pieces of this colossal set. An interesting group, Causa Imperial, which promotes the restoration of a Brazilian Empire, provides access to the indices for the 1831-1840 series.

Lawyers interested in current issues have other sources. For English-speaking researchers interested in Brazilian law, take a look at the Legal Research Guide for Brazil provided by the Library of Congress.

The complexity of several cases has become apparent recently as we estimate the research effort that will be required to confirm public domain status of various serial sets we own so that the sets can be displayed in Full View to the public through Google Book Search.

One case we considered for follow up includes a five-volume series with extensive genealogical information about families in the state of Parana, Brazil, “Genealogia Paranaense,” compiled by Francisco Negrao. We have been able to determine from authority files and biographical sources, that Negrao died in 1937, so according to Brazilian copyright laws, his books passed into the public domain 70 years after the year of his death-in January 2008. That much is pretty straight forward.

What complicates things is that the five-volume set we own was reprinted in 1961 along with an index to the volumes prepared by Salvador de Moya. Moya, a colonel in the state military police, founded a national federation of genealogical groups in Brazil in 1949; he died in the mid-1975s, so clearly his work—unless he willed it otherwise—remains protected by copyright.

To the general reader this set may seem an irrelevant piece of antiquarianism but the reality is that to scholars the volumes offer a tantalizing insight into the military mind in countries where there are still cultural vestiges of nobility or aspirations to that world of medals, titles, and coat of arms.

The Benson Latin American Collection acquired one of the first five volumes that was discarded by the Library of Congress; later it purchased the entire reprinted set accompanied by the Index. The one volume was found to be useful and so the decision to buy the set. The series is listed in Foster Stockwell’s A Sourcebook for Genealogical Research (McFarland 2004), giving an indication that genealogists at least still are interested in this reference book. From these past actions follow the decision to make it available to the public in general. But, who to contact to get the necessary agreements? What are the chances that they will reprint the out-of-print texts?

We have not been able to determine the current address of the Instituto Genealogico Brasileiro that in 1961 was located on Rua Dr. Zuquim, 1525 in Sao Paulo, Brazil. The books were originally published between 1926 and 1930 by the State Printing Office of Parana in Curitiba and reprinted in 1946 by Impressora Paranaense, which today is a large corporation that prints commercial food packaging labels. At least we know their address. What are the chances that anyone there will know about the books or have access to the original production contracts?

The website for BrazilGenWeb, a good source for genealogical institutes in Brazil, did not have a listing for the Institute. From the University of California’s Worldwide Genealogy & Family History Research bibliographies, we gathered that in 1969  the Instituto ceased publication of the Revista genealogica brasiliera, a related series started by Moya. It’s likely that in 1969 Moya retired or could no longer keep up with the journal or the institute.

So after two hours of research, we have not much more than dead ends. What would be the most effective way of finding Moya’s family in order to clarify the status of Negrao’s original text and to obtain the required approval to display the text online? Even though the texts are in the public domain in Brazil, they are protected by U.S. law for 95 years after the date of original publication, since Negrao’s work did not go into the public domain before 1996.

We will file this one for now, and go on to the next case…

Evidence is starting to mount that the more you show, the more sales increase. This is pretty much counter-intuitive to the publishers who expect that no one will pay for what they can get for free. But that often-stated and seemingly obvious “truth” is turning out to be quite a misleading misstatement of what’s actually going on with Open Access.

What one is willing to pay for when one buys a physical copy of a book that is also available for free on the Internet is not the same thing as what’s available for free. There are other aspects of purchased object. In the case of a book, there’s the obvious, the physical thing itself, a book I can put on my shelf with all my other books. Books mean something to me and to others. They speak about me, as well as to me. There’s convenience — my definition of convenience. If it includes having a physical book to thumb through when I next want to refer to something in the book, I might be willing to pay for that. On the other hand, I might consider the digital copy more convenient if I am at my computer all the time and can access my “copy” all marked up with my notes and comments, highlights and bookmarks, any time I want for a quick word search for the exact phrase I’m looking for to quote the author. I did this just the other day with one of Lessig’s books, Free Culture. The point is that if I want convenience and my definition of convenience includes having a physical copy, I might be willing to pay for that. I might also think a physical book is more portable if I’m planning a trip to the beach. But frankly, the portability advantage might be a toss-up if we are talking about more than one book.

But whatever the shape of the “deal” we are willing to enter into instead of Open Access, or more precisely, in addition to Open Access, there is more evidence every day that enough people consider the book itself worth having, that Open Access does not impair profitability even if it does substitute for a sale in some cases. It seems to open up the possibility of more sales than it obviates. Thus, it might even improve profitability. If this possibility is widely confirmed, authors’ and publishers’ desires might be entirely compatible with respect to the decision to make a work Open Access. But until it is firmly established, we are likely to have more requests from authors that conflict with their publishers’ more constrained forays into the new world of Internet marketing.