An underlying issue in the Google/Authors Guild/AAP settlement concerns copyright, fair use, and the concept of intellectual property. There is a widespread premise among many professionals in the library community, as well as among some publishers that while they support copyright laws for practical reasons, they do not see intellectual property as enjoying the natural protection of real property. I differ with this view.

Reviewing the basics, Jonathan Kirsch in his Handbook of Publishing Law writes, “An idea, according to the old common law, belonged to no one. And for that reason, the law simply did not recognize any ownership in mere ideas, no matter how clever, or original or marketable . . .” He quotes Louis Brandeis: “The noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become after voluntary communication to others as free as the air to common use.”

Kirsch also observes, “Still there is something deep in the heart and soul of an author that prompts her to regard her ideas as something rare and precious.”

In the early decades of the many years I have been working with “intellectual property” in some form or other of the printed word, the notion of copyright was treated by writers, publishers and courts alike with the respect accorded to something “precious” and valuable. With the advent of electronic content and the internet, the peaceful coexistence was upset between the moral underpinning for the concept of intellectual property as something “precious” and that of intellectual property as a commodity created by copyright law.

My sympathy for intellectual property as a natural and moral right is not out of disagreement with the legal and historic differences between real property and intellectual property, both in law and in fact, as highlighted by Kirsch. It has to do with our natural understandings of honesty and integrity in human relations—qualities that we do not need laws in order to recognize and to deservingly assert At the same time, while I consider that there are rights and ethics derived out of a “natural law,” I do not consider that in a civil society natural law is “above the law.”

Of course, as Kirsch points out, copyright doesn’t protect ideas as such, but “only the particular expression of ideas and information.” And the legal standing of copyright as a creature of law and not inherent right is beyond reasonable dispute.

My thinking is actually grounded in Kirsch’s passing observation about what resides “deep in the heart and soul of an author.”

We prosecute plagiarism and we shame the misappropriation of the creative works of others as much because we morally recognize those acts as the theft of something that truly belongs to someone else as we do matters of law– that is, disguising the origin of the work’s authorship and the fraudulent cashing in on someone else’s work without permission. (Of course, without law plagiarism cannot be prosecuted.)  

We all know that in the act of thinking, writing, rendering and composing, a single human being has worked at it (or several beings)—in fact we call it a “work” And we expect that such work will be compensated for, as would any form of property or labor, by agreement between a willing seller (hence, owner of the property right) and a willing buyer. To willingly do otherwise is rightly considered theft in my opinion.

As has been compellingly argued, however, there is a societal interest –the intellectual rights of others, as Brandeis described. And the law sets up a balance—one that has been abused, in my opinion, by the continued unreasonable extension of copyright law in an affront to the popular culture, composed as it is as an amalgam of the voluntarily disseminated creative expressions of all of humankind—but that is a subject for another time.

The Google settlement (yet to be affirmed by the court) addresses the societal interest in not only the access to, but the use of creative works that have entered into the culture. Of particular interest are those works that are still in copyright, but whose ownership is uncertain and untraceable—those “orphan works” that have not yet fallen out of copyright and that have come into print prior to the Google settlement. Moreover it provides for an orderly process under which digital copying and distribution of literary works can be compensated.

The premise behind the settlement in my view recognizes the “property right” that is morally attached to a literary work in providing for means of compensation and for the author or publisher to control its use during the period of copyright. At the same time it legitimizes Google’s (and any one else’s) right to build a digital search archive available to the general public, and to make money at it.

There are many details of the settlement that are subject to dispute—not the least of which is the major premise that a class action suit in court can be used as a means to do what many believe is a public policy area reserved to the legislative branch. Of course, as a practical matter the likelihood of a coherent policy coming out of the Congress in our lifetimes is not promising.

Because of the rapid adoption of electronic forms of expression and distribution, it is better that the courts mediate a rational settlement agreeable to the major interests than to have none at all. And it is the force of copyright law as well as the moral acceptance of intellectual property to back it up that Google doesn’t want to undermine, for good business reasons, that will make possible an agreement in the interest of both intellectual property owners and the general society..

Posted by: Eugene Schwartz, Editor-at-Large

The annual one day conference on May 14 of the International Digital Book Forum (IDPF), provided evidence that the latest innovations and experiments in e-book publishing, marketing and distribution have permanence in the market and in the support of new technologies. They are here to stay and on the way.

Steve Potash, CEO of Overdrive and President of IDPF, opened this year's session as he has every year, with a confident forecast that industry efforts to develop an open and common eBook platform standard would pay off for everyone. This year, he was able to announce the successful release of the standards last year, and the introduction of the common XML file extension of ".epub" for reflowable books and publications.

These standards for digitally "packaging" and providing meta data and tagging content, have been accompanied by breakthroughs in publishing strategies, digital search, browsing tools (look inside, widgets), and most critically, portable reader technology.

The Sony Reader, Amazon Kindle and iRex Iliad have replaced backlighting, and use the reflective e-Ink screen that simulates the page turning and reading experience on paper, while providing the search, bookmarking, highlighting, and variable type size features of digital technology. Moreover, e-Ink only uses power when the page is changed, and not when the new page has come to rest. And the most user-friendly bump to the market—soon to be copied by other devices—is the Kindle function that provides a one click effortless wireless download of any book out of its browsable catalog.

The Google book search program—with more than one million books on line and growing, and Windows Alive's archive—are providing point and click opportunities for readers to go from their browse to the publisher to order the book—in print or in electronic version. Not to mention Amazon's ahead of the pack point and click, Barnes and Noble, Powell's, Borders,, et al.

Publishers are beginning to innovate in their e-Book offerings. Witness Harlequin's launch of two short subject romance series (Spice) and Random House's free give away of an e-Book (Suze Orman) that stimulated a new spike in print sales. Service providers such as Overdrive, Ingram Digital (including MyiLibrary and Vital Source) and Libre Digital, are providing publishers with large-scale digital e-Book and audio archiving, distribution and re-purposing services to broaden consumer choices.

Quietly working in the trenches, the all volunteer IDPF standards committee headed by eBook veteran Garth Conboy, President of eBook Technologies, designed and put through a meticulous process of review and release in the past three years for the three container and platform standards now being adopted by publishers and device manufacturers. They laid the groundwork for interoperability of e-books in this promising new marketplace. (If you are into technology, go to http://idpf.org/specs.htm for a summary description as well as for detail on the OCF (Open Container Format), OPS (Open Publishing Structure) and OPS (Open Packaging Format) standards).

This means that the publisher will need to produce only one format (xml based), from which various applications can be converted and distributed. To the extent that device distributors accommodate the platform standards, and publishers relax their content protection barriers—the reader will be able to make one purchase and use their e-book in multiple ways in an after-market environment.

Of course this will raise a new set of identification and numbering problems. Most publishers now provide a separate ISBN for each ebook plantform for the same title (mobipocket, windows, Sony, iRex, Kindle). By publishing one open eBook formatted .epub version, the publisher can get by with one isbn and will no longer need to track the various other platform versions serviced by their distributors. So, it will fall to the distributors to create distinguishing product numbers in order, in turn, to account for their different offerings, (There is no escape!).

The continued ubiquity of the book as a reading device has distracted our attention from the breakthrough in electronic readers and books for the general public. Slow in coming, authors, publishers, distributors and retailers have remained complaisant—worried more about the decline in book readers than the uptick in electronic readers.

Well, the electronic reader—in both senses of the word—has leapfrogged out of the early adopter stage into a growing mainstream of device-equipped business travelers, immersive readers, college students, professional field workers and audio book/multimedia users (both Kindle and Sony have audio capability).

After writing about e-Book developments for the past ten years, I have acquired my first readers: a Sony and a Kindle, and I am getting used to using them. For my most recent five day trip to Chicago, I down-loaded on my Kindle in about a minute, for $9.95, Doris Kearns Goodwin's Team of Rivals, which took up no more space than a 5x7 notebook and rested in my palms with the comfort of a trade paperback

I still like to go to bed with a printed book – especially a paperback—that I can grab, flex, and earmark—my current victim is The Kite Runner—but on a flight and in a hotel room where I don’t have to take up space with the bulk of a printed book, I have to confess, I've been hooked.

Posted by: Eugene Schwartz, Editor-at-Large

A guest blog by publishing attorney Lloyd Jassin


NOTE FROM EUGENE: I have been gathering background on the recent Amazon change in POD order fulfillment policy and will be doing my own report on it next week. Meantime, I asked Lloyd Jassin, a publishing attorney and Chairman of the Executive Committee for the NY Center for Independent Publishing, for comments on the current debate concerning Amazon's new policy. He has provided the following as a private citizen-professional, and not in his capacity with the NYCIP. He can be reached at Jassin@copylaw.com.


As the market changes and we move from traditional distribution options to digital distribution options, I find Amazon's move both troubling and exciting. They want to be active all the way along the supply chain from production, to marketing to distribution. As Amazon gets more involved in digital production and distribution, it's not long before they figure out that there should be an Amazon-based publishing company. Well, on the audio side, they've already figured that out. That's the troubling part.

It's a brilliant move. You have to admit. By force of will, Amazon has become the digital asset warehouse and distributor of choice. And, how many digital asset warehouses / distributors do we need? This gives Amazon the ability to manage digital files for POD, ebooks, mobile phone devices, etc. The exciting part is that when Amazon takes this next step, it will create new revenue streams for smaller presses.

While it doesn't look like the cost of gaining access to the number one online bookstore has gone up, I'm concerned about their monopolistic tendencies. Their claim that they are not seeking exclusively (i.e., requiring POD titles be printed exclusively through Book Surge), seems to be a subtle bit of specious reasoning. Amazon's gain is the ability to monopolize the POD market. They are offering a single printer option. Your email makes that clear.

If I were a publisher, I'd look hard at the current industry model. You have the potential to get squeezed on both ends. For example, you've got the Barnes & Noble - Sterling combo with an increasing number of book sales being titles self-published by B&N. Same deal with Amazon and Audible, both of which are actively going after new product to self-publish. See Amazon's Createspace. To the extent publishers covet virtual shelf space at Amazon (with one-click ordering), Amazon's move makes them the leading POD publisher. Of course, there will also be a plethora of other digital opportunities, including e-reader, iPhone and other selling opportunities, that they should exploit for those whose files have been entrusted to them.

Their virtual warehouse of digital files can now be accessed for all manner of digital derivatives. If Amazon remains committed to the indie press segment, which has been allowed to grow to its present size due, in large part, to Amazon, that's great. Their favoritism to Book Surge, is a slippery slope that can easily decrease diversity. They are steering consumers to books that are produced by their owned and operated press.

So, as a general proposition, I think vertical integration is a bad thing. Perhaps, the market will correct itself, as publishers move over to B&N, and other digital asset distributors pop up. Likely, that won't happen. Book distribution is not sexy enough.

If I had to prognosticate, I'd say in the next 24-months Google buys Ingram (Googlegram?) and out-Amazon's Amazon, by creating the ultimate digital warehouse - distributor in the sky.

If Google were to exhibit digital favoritism, it would steer book buyers to its wholly owned Lightning Source. Amazon owns the store. Google owns the web. Amazon merchandises books. Google sells them contextually. Balance is restored to the planet.
 
-Lloyd Jasssin

Posted by: Eugene Schwartz, Editor-at-Large

Note: The impact of Google on the way we do business is really a by-product of much more significant culture change in the evolution of human society. Michael Cook, a Managing Director at AG Asset Management, a money management firm in New York City, who is also an essayist, gave me permission to share his thoughts with you. He can be contacted at mcook@ag-am.com.
—Eugene G. Schwartz, Editor at Large


Life as we know it depends on DNA to transmit information from one generation to the next. Until the appearance of the human race, this was the only way favorable adaptations were retained. Thus, only those adaptations that were genetic in nature drove the progress of evolution. With the invention of language, however, a new type of evolution could occur—what Julian Huxley termed “psycho-social” evolution. The DNA of this evolution is language, and with language came the ability for humans to transmit information from one generation to the next linguistically, as well as genetically. This meant that adaptations innovated by individuals not only could be continued and built upon, but also that individual learning could accumulate from generation to generation. This sped up the pace of evolution immeasurably.

The accumulation of social knowledge brought with it new dilemmas. After a period of time, the traditions and knowledge of the human species became so vast that storing it efficiently became difficult. Oral tradition depends upon memory, which is limited. The art of memory systems was developed by the Greeks to extend the range of human memory, and the poetry of Homer used rhythms, rhymes, and other patterns to aid the memory so that it could retain vast amounts of cultural information. But these techniques were limited: ultimately the problem of storing what we could loosely refer to as the psycho-social “genome” became serious. This problem was solved by the invention of writing systems.

However, to be useful, information must not only be stored, it must be retrieved. Fairly recently in human history it was possible to have every book ever written on your bookshelf. The invention of the printing press was a watershed event in the technology of writing, which ensured that this could not remain true for long! Nevertheless, the retrieval of information from the general store was still something that could be done in a fairly straightforward manner. Of course, centers of learning—monasteries, universities, libraries – developed to manage the growing base of human knowledge. But at some point, it started to become clear that the problem of information retrieval was becoming a roadblock to the continuing development of knowledge. It also became clear that computer technology was well suited to addressing the retrieval issue.

In 1965, J.C.R. Licklider wrote Libraries of the Future, which summarized a project he had undertaken at Bolt Beranek and Newman. In his book, Licklider predicted that all human knowledge would be available on a “fast, random access computer” by the year 2000. His vision seems to be coming true. In December 2004, Google announced a project in which the libraries of five of the world’s leading academic institutions are to be digitized and made available for search and reading online.

But still, even if everything is “available” online, how can relevant information retrieval be effectuated? This is the key problem that Google addressed, and its successful solution to it, although just a beginning, essentially created the “search” industry. Google’s initial solution is called the PageRank algorithm. It was the breakthrough that started delivering search results that are relevant to the user’s search. Before Google, this had really not been the case. Their insight was to use the link structure of the web—the fact that web documents “point” to other web documents - to measure how popular sites were, and to then trust the “wisdom of crowds” by using a site’s popularity as a measure of its relevance. This, in conjunction with the appearance of search terms on the site, proved to be a surprisingly effective ranking mechanism, and the first algorithm that consistently gave users results they found useful.

At present the search industry is evolving very fast—everybody seems to have incorporated Google’s insight into their algorithm, and the race is on to understand what users mean, and what they are intending with their searches. Google’s PageRank algorithm does not address semantic content: indeed, this is part of the genius of the solution—the way it neatly sidesteps this very difficult problem. The next generation of Web Search is yet to come! But the major breakthrough that made search results relevant was invented and engineered by Google.

So here’s the progression as I see it—the thumbnail sketch of the evolution of life on earth: DNA, language, writing, printing, computers, the Internet, Google’s search algorithm.

This is why I say that the future of search is the future of life on earth, and that Google’s algorithm represents a watershed event, analogous to the invention of writing, or the invention of the printing press.

Am I overstating my case? Perhaps. But I don’t think so.

—Michael Cook

Posted by: Eugene Schwartz, Editor-at-Large