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I previously blogged about the peculiar state of orphaned works under the proposed Google Books settlement. I have now joined with Lewis Hyde and the Open Access Trust (see below for an explanation) in asking the judge who must rule on the proposed settlement to allow our concerns to be heard. The letter speaks for itself so I simply include it below. Stay tuned.

———————–

The Honorable Denny Chin

United States District Judge

U.S. Courthouse, 300 Pearl Street

New York, NY  10007–1312

RE: Case No. 05-cv-8136-DC, The Authors Guild Inc. et al. v. Google Inc.

Dear Judge Chin:

Pursuant to your Individual Practice 2(A), we write to request a pre-motion conference in  Authors Guild v. Google.  We seek to file a motion for leave to intervene on behalf of Lewis  Hyde, Harry Lewis, and Open Access Trust Inc., a Massachusetts nonprofit corporation  dedicated to promoting access to knowledge, worldwide.

We also seek to file motions for our counsel, K.A.D. Camara of Camara & Sibley LLP  and Charles Nesson of Harvard Law School to appear pro hac vice in association with Nathan Z.  Dershowitz, a member of the bar of this Court.

Lewis Hyde, Harry Lewis, and the Open Access Trust represent the community of  readers, scholars, and teachers who use orphaned works.  Orphaned works are works under  copyright, but with a copyright holder who has died, cannot be found, or otherwise has  abandoned his work.  In the status quo, users like us and commercial users like Google can and  do use orphaned works, although we do so against a backdrop of potential legal liability should  the owner of an orphaned work later emerge.

The parties in this case propose to change this status quo by clarifying that the use of  orphaned works is, indeed, actionable copyright infringement; vesting in Google a monopoly in  the lawful use of orphaned works; and dividing between themselves the proceeds of this  monopoly.  The Authors and Publishers, with Google’s consent, purport to represent a class of  copyright holders that includes the owners of orphaned works, even though neither the Authors  nor the Publishers are such owners.  Having turned the Authors and Publishers into legal  representatives of the owners of orphaned works, Google will buy from these representatives a  global license.

The proposed settlement will make Google the only company in the world with a license  to use orphaned works.  No other company will be able to buy a similar license because, outside  the context of the proposed class-action settlement in this case, there is no one from whom to buy  such a license.  The Authors and Publishers join in this scheme because Google proposes to  divide with them, pursuant to the proposed settlement agreement, the revenue that the orphaned  works will generate.  The settling parties plot a cartel in orphaned works.

We seek intervention to defend our interest in orphaned works — to defend the public  domain’s claim to free, fair use.  The purpose of copyright is to promote authorship and learning.   Copyright does this by giving authors exclusive rights for limited times so that authors can profit  from their writing by selling licenses to others.  This mechanism breaks down in the case of  orphaned works because, with respect to these works, there is no one from whom to buy a  license.  The public can buy no license; the author can reap no reward.  Because exclusive rights  in orphaned works do not serve the ultimate purpose of copyright, the public domain has a claim to free, fair use of orphaned works.

We have the right to intervene to present the public domain’s claim to free, fair use of orphaned works.  None of the present parties will present our claim.  It is inconsistent with the settlement they propose.  If the use of orphaned works is free and fair, then there is no exclusive license to give Google and no claim on the part of Google, the Authors, and the Publishers to the proceeds of that exclusive license.  We must press our claim in this case because it is only in this case that there is a party that purports to represent the owners of orphaned works with whom we, like Google, can negotiate.  Our interest in orphaned works, put in jeopardy by the proposed settlement and adverse to the interests of the settling parties, gives us the right to intervene under Rule 24.

Our request to intervene is timely.  It comes shortly after the terms of the proposed settlement became public and made our interest concrete.  And it comes well before the June 11, 2009, fairness hearing on approval of the settlement.  The settling parties claim that class notice was mailed on January 5, although many authors did not receive notice until much later.  Lewis Hyde, for example, received notice by mail dated February 20.  Our intervention comes, at most, three months after notice.

We believe that the proposed settlement worked out by Google, the Authors, and the Publishers is a landmark achievement and an historic event.  But the settlement currently proposed cannot be approved because it does not respect the interest of the public domain in the free, fair use of orphaned works or the revenue that these works will generate — nor was it arrived at through a process in which that interest was represented.  We think that this case and the constitutional issues of national moment that it presents will be better resolved if the public domain has a seat at the table.

Lewis Hyde is Richard L. Thomas Professor of Creative Writing at Kenyon College and was formerly director of the creative-writing program at Harvard University.  Harry Lewis is Gordon McKay Professor of Computer Science at Harvard University and was formerly Dean of Harvard College.  Open Access Trust Inc. is a Massachusetts charitable corporation dedicated to the creation, encouragement, and maintenance of institutions that serve the goal of open access to knowledge, worldwide.

We respectfully request leave to file our motion to intervene and motions for leave for our counsel, K.A.D. Camara and Charles R. Nesson, to appear pro hac vice, in association with Nathan Z. Dershowitz, a member of the bar of this Court.

Respectfully submitted,

____________________________________

K.A.D. Camara

Camara & Sibley LLP

Charles R. Nesson

Nathan Z. Dershowitz

Dershowitz, Eiger & Adelson PC

I strongly recommend the front page story in the NYT today about how US immigration policy is making it next to impossible for US technology companies to hire the top technical talent from abroad. The poster child is Sanjay Mavinkurve, a Harvard grad in CS who has already demonstrated himself to be a top engineer at the age of 28. He works for Google — out of Canada, since he can’t get a green card and so his wife can’t work here.

I have had many, many students from abroad who just want to be Americans. They have contributed far more jobs to the US economy than they have consumed themselves. The counter-argument — that there are unemployed US engineers who should be hired instead — is absurd. Of course an average US engineer should be hired over an average foreign engineer, but we are talking about the people who will drive the US economy in the future. America has the potential to keep doing just what it has always done, bring in the top talent from abroad and make them its own. Without them, we will stagnate in our jingoistic righteousness and wind up with a second-rate economy.

I know Lou Dobbs doesn’t agree ‚Ķ

Britain’s chief anti-terrorism officer has resigned after a newspaper printed a photo of him getting out of a car. Huh? Well, you see, he was carrying a secret document, and the text on it was clearly legible. (Some words have been redacted in the photo on the web site — they were not redacted in the original.) A round-up of terrorist suspects had to be accelerated because of the leak.

The government moved to block the Evening Standard from printing the photo, but it was too late — the image was already up on the Internet.

Which raises two interesting questions. As it happens, the photo was taken by a media photographer, but what if it had been taken by a tourist with a high-resolution camera? All the niceties about prior restraint of the press, and media self-policing, would have been irrelevant. I could have taken the photo myself and had it up on this blog within minutes. It doesn’t make sense to have the press laboring under restrictions more severe than those imposed on citizen journalists, does it?

And with high-resolution digital photography now a consumer game, there are lots of embarrassing web sites that could be created. For example, take Latanya Sweeney’s research in which she was able to capture fingerprints just by having people wave their hands in front of a camera (well, several cameras so she could get multiple views). That’s a laboratory exercise at this point, but in a few years, any clown could watch a crowd with a camera and post a web site with lots of images of fingerprints ‚Ķ with facial photos ‚Ķ with names, which could perhaps be recovered from the facial photos by searching the web using face-matching software ‚Ķ.

In a surprising vote, French legislators have defeated a bill that would monitor Internet communications and cut off from the Internet people accused of illegal downloading by the music and movie industries. The defeat resulted in cries of anguish from the industry spokespeople, and a promise from Sarkozy to bring it back after Easter, when more than a handful of legislators will actually be present to vote.

It’s surveillance, guys. If it’s legal to inspect everybody’s data packets because you are pretty sure somebody is sharing songs illegally, surely it should be legal to open everyone’s mail because we know that there are illegal acts carried out through the postal service. And to listen to everyone’s telephone calls because we know some people are doing bad things over the phone.

The French see these things differently, and the big fear is that ubiquitous Internet surveillance will establish a beachhead in Europe and then be transported stateside through international treaties. Watch this one closely.

Sarkozy, by the way, is fuming.

A couple of quick items.

1) The US has released a summary of the state of discussions about the Anti-Counterfeiting Trade Agreement, about which a FOIA request had been denied (or technically, granted) on perplexing “national security” grounds. The bad news is, the summary could have been written by pretty much anyone; it simply explains, in some detail, that they are talking about the things you’d expect them to talk about. And the most important issue, whether there will be a global system of Internet surveillance, watching for pirated music and videos but seeing all Internet communications in the process, receives very spare treatment:

This section of the agreement is intended to address some of the special challenges that new technologies pose for enforcement of intellectual property rights, such as the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the Internet. No draft proposal has been tabled yet, as discussions are still focused on gathering information on the different national legal regimes to develop a common understanding on how to deal best with these issues.

Not helpful. I would love to see the US explanation of the US legal regime relating to searches without suspicion.

2) The Associated Press is threatening to go after news aggregators (like the Huffington Post) and search engines (such as Google) who link and quote from their content without paying them. Money is being made with their content, they protest, and they want a cut. “Fair use,” cry the aggregators, pointing out that the AP stories get more visibility because the sites link to them. Apparently the AP hopes that their worries can be resolved without a court battle; we shall see.

3) Added a little later: I should have mentioned yesterday’s report that the movie industry’s solution to digital piracy is to make the US ‚Ķ more like France! There they have a three-strikes law — if the industry complains multiple times to the ISP, you get disconnected, and placed on a national blacklist so you can’t move and get a connection in a new location. That would really be neat, says an industry rep at a Congressional field hearing in movieland — while acknowledging that he doesn’t know how it would work or if it would be legal. As the New York Times reported,

One of the strongest possible measures was offered by Steven Soderbergh, who testified as a vice president of the Directors Guild of America. He proposed that the entertainment industry be “deputized to solve our own problems,” under a model that is being tried in France.

Pressed later for details of the French plan, Mr. Soderbergh stumbled a bit and said he was not quite sure how it might work.

People who have worked closely on Hollywood copyright issues described a French-like solution as a plan under which those who believe their copyright has been infringed might ask an Internet service provider to send successive warnings to an illegal downloader.

If the warnings fail, the downloader might then be barred from using the provider for a time and be placed on a national registry that would block access to other providers.

To pass laws with similar steps in the United States “is going to be tricky,” Mr. Soderbergh acknowledged during the hearing.

That damned Bill of Rights again. Do any of these people understand that there is a reason why Americans can’t be searched without some reason to think they’ve done something wrong?

Though he took a bit of heat for his choice of gifts to the British royal family, I thought it was great that President Obama gave Queen Elizabeth an iPod full of music. The iPod is a great symbol of 21st century America; I am sure the Queen needs no more crystal candlesticks, even the best that American craftsmen can make. And apparently the White House staff did a bit of research on her tastes, so we know that she likes the music.

But wait. Were those songs really President Obama’s to give away?

If he downloaded them from ITunes, he had a license to use them, not the right to give another person a copy. If he bought the CDs, he can’t just go making copies and giving them to people, Xeroxing music as it were. That’s what the RIAA calls “theft” and “piracy.” Fred von Lohmann takes us through the permutations here. Including details about things presidents and queens can do that the rest of us can’t. But the question is: If every college student went out tomorrow and did just what the president did, giving their friends nice new iPods full of tunes, would the recording industry scream? And if so, doesn’t the naturalness of the President’s gesture tell us how absurd copyright law is?

When Google started the process of scanning millions of books and returning little snippets in response to search queries, the¬†Association of American Publishers and the Authors Guild cried “copyright infringement!” Google countered that the little snippets it was showing fell within “fair use,” but that begged the question of whether Google had a right to make digital copies of entire books in the first place. Eventually the two sides got together and hammered out their differences. Money will start changing hands, between people willing to pay for Google’s digitized books on the one hand, and Google and the authors and publishers on the other.

The settlement is before a federal judge in New York (the same one who dealt with Bernie Madoff, as it happens). If the judge approves it, the problem goes away — sort of. Any individual author or publisher could opt out of the agreement, and retain the right to sue Google for copyright infringement separately. It’s unlikely many will choose to go that route, since by staying in the settlement class, authors will start to realize some revenues from the scanned copies. On the other hand, if another party, Microsoft say, starts digitizing books, the authors and publishers could sue it too; the settlement is a private deal with Google, not legislation dictating how such digital copies should be regarded in the future.

A subset of copyrighted works is now getting special attention. The term of copyright is now so long that many works that are still legally copyrighted have become “orphans” — no one knows who owns the copyright. Revenues will be generated from the sale of these works too and, as the settlement now stands, split up between Google and the¬†Association of American Publishers and the Authors Guild. That doesn’t seem quite right, but it’s not clear what else should happen.

The New York Times had an excellent explanation of the muddle on the front page of Saturday’s paper. Stay tuned — there will be more action on this before the dust has settled.

James Grimmelmann, a Harvard computer scientist turned law professor, has a good analysis of the settlement here.

I went to the White House web site to download a copy of the recent financial disclosures of Lawrence Summers, formerly Harvard president and now Chief Economic Advisor to the president of the U.S. (I have a particular interest in Mr. Summers, because I have thought a lot about his Harvard years.) Before they would give it to me, they wanted some information about me: My name, addresses (postal and email), and occupation. They also asked me to affirm that I wouldn’t use the disclosure in a bad way (I paste that question below).

Any idea why this is necessary, given that public disclosures are, by nature, public information? In any case, there is no need to supply that information — DocStoc allows you to download the same document, free and with no questions asked. That’s what I did.

—————

The affirmation required by the White House:

I am aware that pursuant to section 105(c) of the Ethics in Government Act of 1978, as amended and 5 C.F.R. § 2634.603(f) of the implementing OGE regulations, it is unlawful for any person to obtain or use a report:

(1) for any unlawful purpose;
(2) for any commercial purpose, other than by news and communications media for dissemination to the general public;
(3) for determining or establishing the credit rating of any individual; or
(4) for use, directly or indirectly, in the solicitation of money for any political, charitable, or other purpose.

The Attorney General may bring a civil action against any person who obtains or uses a report for any such prohibited purpose as set forth above. The court may assess against such a person a penalty in any amount not to exceed $11,000. Such remedy shall be in addition to any other remedy available under statutory or common law.

A draft cybersecurity bill empowers the president to commandeer the Internet under vaguely specified circumstances:

The President … may declare a cybersecurity emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal government or United States critical infrastructure information system or network …

Now the Internet is inherently hard to control, because of its distributed architecture, and the vast numbers of private and governmental parties, spread across the globe. I wonder what would actually happen if he gave the order. The language of the bill also states that the President

may order the disconnection of any Federal government or United States critical infrastructure information systems or networks in the interest of national security,

which may sound reasonable until you recall how capacious “national security” interests can be — broad enough that allowing the American public to see the draft of an anti-music-piracy trade agreement drafted with the assistance of the RIAA is also considered a national security threat. By that standard, the President could cut off your Internet connection if he though you were a file-sharing risk.

There is, moreover, a category of “Federal government and¬†private sector owned critical infrastructure information¬†systems and networks.” These are not defined in the proposed statute — the President (surprise) gets to say which systems and networks are “critical.” The bill then gives the government complete access to everything about them:

The Secretary of Commerce shall have access to all relevant data concerning such networks without regard to any provision of law, regulation, rule, or policy restricting such access.

Now I am guessing that the Internet backbone would be critical, don’t you think? Pretty much all traffic flows through the backbone, so it seems this clause may with one stroke of a pen invalidate ALL privacy laws and protections relating to electronic communications.

There is a lot in this bill to like — it calls for important research and creates some emergency-response structures that are likely to be more good than threatening. There is also much to make one suspicious — it leads with appeals to the economic importance of the Internet, and talks about “intellectual property” long before it mentions “banks.” But the worst seems to me in these few lines, where the drafters, our elected representatives, have said, “The government can seize control of it all and can look at everything.” So much for Congress checking the power of the executive to monitor and interfere with the communications of citizens!

Harvard announced yesterday that it would no longer print the course catalog, the Handbook for Students, and a few other softcover volumes that are issued annually to students and faculty. The Admissions Office had already announced that it would cut down on the amount of printed matter it sends to high school students. The rationale is for doing less printing is, of course, cost savings — Harvard is undergoing significant budgetary contraction. It’s a bit sad — I have a collection of Harvard course catalogs going back to about 1850. The earliest ones, before Eliot abolished most curricular requirements and instituted the elective curriculum, had the course schedule printed on a single page: Hours of the day across, days of the week down, and four lines in each box, indicating which course would be taken by freshmen, sophomores, etc. at that time on that day of the week. I’m going to add this year’s, which is hundreds of pages long, as the last one in the collection.

If I can find it. I think it’s in the office somewhere, but I’ve never looked at it, since it’s generally easier to use the Web version. And that, of course, is the reason this move makes so much sense. The online catalog is searchable, and it’s also up-to-date — there are always additions and deletions to the list of courses after the catalog goes to print.

Still, books are more browsable than online text. Though user interfaces keep getting improved, there is nothing with the high bandwidth of flipping through the pages of a book, creating the opportunity for the marvelous human visual system to catch a word flashing by. And computers are still awkward to read in bed.

Harvard couldn’t have been considered dropping the printed catalog until the Internet became ubiquitous — or at least ubiquitous on campus. The fact that it’s far from ubiquitous in many parts of America poses a challenge to the electronic outreach efforts of the Admissions Office.

One of my colleagues poses an interesting question. The Registrar has always posed a strict 200-word limit on our course descriptions, to prevent our enormous course catalog from becoming gargantuan. But bits are cheap. If we hold to the 200 word limit, it will be another example of a social restriction we used to justify by economic necessity, but which we sustain because we decide that the discipline is good for us even after technology has gutted the economic justification. There are many other examples in Blown to Bits — for example, the regulation of speech on U.S. broadcast radio and television.

And then there’s the question — will some pack-rat, a century and a half from now, be able to assemble a collection of Harvard course catalogs, to compare and contrast? What confidence can we have that institutions on which we rely to provide online information will keep their archives visible forever?