Today we begin to see the business model behind Google Book Search. Google announced a settlement in the lawsuit brought by the Authors Guild, the Association of American Publishers, some individual authors against Google Book Search. Amazingly enough, it not only leaves Google Book Search intact, but to my eye it seems to expand its offerings substantially. It almost appears that Google used the suit as an educational opportunity and convinced authors and publishers that the service Google could offer would be a win/win for all. Of course, they also paid $125M for the scans they made without permission (but that money goes toward setting up a Book Rights Registry which will try to determine who owns the copyright to out-of-print books so that they can be paid for any sales).

If this works, then the “snippets” will disappear from the out of print results; instead we will see full page results. Furthermore, for a (yet to be determined) price, we will be able to license access to the full books and put them on our Google “bookshelf.” That price is a key to the business model and the agreement, I’m sure. Suddenly authors and publishers have a way to “monetize” the “long tail” of the out of print catalog. That’s pretty revolutionary.

Now the urgency of Google’s effort to scan every work in some major libraries begins to make sense. With the competing Microsoft-led effort already hitting the skids it looks like Google will have some time to polish this model before the competition gets tough.

Of course, this agreement still has to be ratified by the court, so it may not be the shape of what is to come. Keep an eye on this space.

UPDATE: Harvard University Libraries opt out of the deal for many interesting reasons.

I still don’t have an iPhone or iPod touch, but if I did I’d be anticipating the arrival of Classics. This looks to be an ebook reader made for book lovers, with pages you can almost smell. Sebastian de With offers a peek into the design of Classics on his blog.

How nice to see what publicly usable texts can inspire!

Thompson owns Endnote and has decided to sue the developers of Zotero (George Mason University) for (they claim) violating the EULA (end user license agreement) for Endnote by reverse engineering the Endnote style file format (.ens). This is fascinating on so many levels. (1) Thompson really thinks the way to build a customer base for reference manager software is to sue an academically produced, open source, Firefox plugin? (2) The case seems awfully weak given that the Zotero team has shipped nothing at all derived from .ens files. (3) Just how enforceable will EULAs (those contract terms attached to ripping open a software box or clicking “I read it” on a computer program) turn out to be?

I hope Thompson rots for this kind of behavior. Between this and suing to prevent others from citing law based on the page numbers they add to legal proceedings, I have pretty much decided they are on the wrong side of the IP issues I care about.

Watching the RNC last night with Mary I wondered allowed whether the McCain campaign had bothered to clear the rights for the music they were using after McCain’s speech. There have been many cases of artists asking the McCain campaign to stop using their music without permission earlier in the campaign. Well, it turns out Ann and Nancy Wilson, authors of “Barracuda,” the song I was hearing when I asked the question, are none too happy about it’s use by McCain.

In fact, they’d sent a “cease and desist” letter before last night’s use.

I guess copyright is fine to impose on us smallfry, but just does not apply to those with enough clout. The big acts (Disney) get their long terms and the smaller acts (Wilsons) can’t even get an obvious infringing use halted. In fact, since the Wilsons probably don’t even hold the copyright to their own song, this may not even be a copyright issue. But it certainly goes to the heart of why copyright supposedly exists: to encourage creators to create. Our current warped system does not really do that anymore. Instead, it encourages corporations to profit and fans (even John McCain) to steal. How did we get here?

The EFF won the dancing baby case at the district level. As you may recall, the EFF argued in this case that Universal music should consider whether a particular use of a copyrighted work is “fair use” before they issue a DMCA “takedown” notice. The court:

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.”

Of course, it is very likely that Universal will appeal. Support the EFF!

Yesterday the United States Court of Appeals for the Federal Circuit upheld a key provision of “copyleft” licenses (PDF) by reversing a lower court ruling in the case of the Java Model Railroad Interface. For a long time we’ve been saying that licenses like the GPL or (as in this case) the Perl Artistic License are theoretical protections of freedom (free as in speech), but had yet to be tested in court. Well, the court tests are underway now, and this one was very important. As Ars Technica points out:

The Federal Circuit appears to have been heavily influenced by the Stanford brief, as it specifically cited Creative Commons, MIT, Wikipedia, and various free software projects as examples of organizations that benefit from copyleft licenses. In a short, clearly-reasoned opinion, the Federal Circuit summarized the public benefits of public licensing and found that the district court had dismissed its terms too lightly. Unlike the lower court, the appeals court seemed to understand that reciprocity lay at the heart of free software licenses. Just as traditional software firms thrive on the exchange of code for money, free software projects thrive on the exchange of code for code. The Federal Circuit recognized that “there are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.” Allowing those rules to be flaunted undermines the free software model.

There is a long haul ahead, I am sure, in defending these licenses from folks who want to take advantage of free software for commercial gain. Our rights are being defended by organizations like the EFF and (particularly in this case) the Stanford Center for Internet and Society and Creative Commons (both founded by Larry Lessig). Please support the work of these organizations.

Last year Universal sent a “takedown notice” to YouTube claiming that this video infringed on its copyright.

(The video is back on YouTube because it was reposted, YouTube did take down the original.)

Why the takedown notice? Universal identified the music in the background as Prince. To Universal this indicated an infringing use. DMCA allows them to send takedown notices for any infringing use.

What about “fair use” you might ask? It does seem that the use of Prince in this video is about as fair as it gets. Let’s step through my own rough fair use analysis (facilitated by the University of Minnesota Libraries). It turns up a surprisingly weak, though still favorable, case for fair use. But more important, remember that fair use is a defense, not a right. In other words, the only analysis that matters is that of a judge and fair use does not really exist until a judge says so.

The Electronic Frontier Foundation is suing Universal for abusing the DMCA takedown process in this case. This kind of takedown has the effect of chilling the use of copyrighted material even when such use is “fair” enough. Universal’s point? Fair use cannot exist unless infringement exists: after all, fair use is a defense in an infringement case. Thus by claiming the use was fair, the EFF actually affirms that there was infringement. If there was infringement, then the takedown notice was, by DMCA rules, legitimate. As Wired reported an exchange with the judge in the EFF case:

“Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?” [Judge] Fogel asked [Universal lawyer] Klaus.

“I don’t think ‘fair use’ qualifies,” Klaus answered.

Quite a comfy argument, no? By this logic any use of any copyrighted material anywhere on the net is fair game for a takedown notice. You can argue fair use all you like, but you will have to argue it after your creative work has been removed from the network.

What a world, eh? Beware the backgrounds of your videos. Watch out when you put that song on the soundtrack. The studios don’t want their customers to use anything that comes out the pipe. Just open wide, let it in, don’t say a word.

I say: support the Electronic Frontier Foundation. This organization is at the heart of defending the net as it should be. It is the ACLU of our day. Become a member today.

[Update: the EFF won this case.]

If you are mashing up some video for YouTube you might want to review Code of Best Practices in Fair Use for Online Video, a report just published by the Center for Social Media at American University. ArsTechnica has a nice summary.

Did you know birthday parties were not common until the 1830s, and even then kids celebrating kids’ birthdays only emerged between 1870 and 1920? Now this is a song many of us hear and sing a few times a year. It is also a song notorious in copyright circles since it generates roughly $2M/year for a subsidiary of Warner Music. Robert Brauneis of GWU Law School took the trouble to dig into the history of the song and found some surprises.

“Happy Birthday to You” is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became “Happy Birthday to You,” originally written with different lyrics as “Good Morning to All,” was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

The case turns out to be complicated in a way that will seem all too familiar to anyone who has tried to unravel a copyright history. The difference here is that the object of this copyright is so familiar to us all.

“Happy Birthday to You” is probably one of the few songs that people in the last two generations learned through live performances in family or community settings, and many of the others were likely children’s songs – “Twinkle, twinkle, little star” and the like – that they no longer sing or hear as grown-ups. Thus, for many people — and you, dear reader, should consider whether you are among them — “Happy Birthday to You” is the only secular song passed down through an oral folk song tradition and still sung in adulthood. No wonder it’s a surprise to find that the song is not a folk song of unknown origin. But it’s not.

The article (hat tip to Andrew Sullivan) is accompanied by an impressive web page of documentation, a reminder that we need to find ways to help academics build this kind of record in the humanities as well as the sciences.

Ars Technica writes that authors need not be afraid of the net while the Times of London worries that authors will stop writing due to online piracy. Ars Technica suggests that “given the difficulty of breaking into print in the traditional way, the Internet looks to many aspiring authors like a powerful new way to distribute content and find an audience; it has promise, not peril.” What do you think?