"Make non-commercial use of the files ... we request that you use these files for personal, non-commercial purposes. ..."

but the ads on authorama make the use of these files, found on google book search, commercial right?

google also adds the following: "we request that you use these files for personal, non-commercial purposes"

I'm wondering if posting the files on a website makes the use of them "personal"?

If not then why not making a Google Book Search clone restricted to public domain book? We could make the site "non-commercial" but how should we manage to make it "personal"? Could a website be personal if thousands of people have access to it?

You'll note they 'request' it be personal and non-commercial. Which (most likely) means they can't *enforce* that request...

Some previous discussions here:
http://blogoscoped.com/archive/2006-08-30-n13.html
http://blogoscoped.com/forum/65491.html

> I'm wondering if posting the files on a website makes
> the use of them "personal"?

Alex, I hope it's not a personal use, as my website is public (the Authorama page in question happens to be non-commercial but I'd argue I have the right to add advertisement too). My point in republication is that I believe I do so rightfully because the public domain overrules the Google guidelines, not because I believe in doing so I comply with the Google guidelines.

> You'll note they 'request' it be personal and
> non-commercial. Which (most likely) means they
> can't *enforce* that request...

You say "most likely", Reto, which I think is interesting. Because I bet your knowledge on internet & copyright laws is above average – and yet even you can't ultimately decide whether or not Google's request is indeed enforceable. So for all practical purposes how is Fred, who wants to use these public domain works on his public website, able to tell if he may do so or not – unless Fred can pay a lawyer? And that's my point: by the way in which Google phrases their "introduction" to these books, "most people won’t know if the guidelines are a polite request, or legally enforceable terms." (And even if you settled for yourself that Google can't lawfully enforce their claims – I don't know – you're left asking yourself whether or not they might cancel your Google Account if they find out about republications, modifications, removal of watermark and so on.)

I think this is a way for Google to make more authors put their books in the public domain, thinking tha this way their book would still sell and be on the internet... Or Googles just trying to catch some attention http://www.trendio.com/word.php?wordid=1373&language=en

Philipp: I agree, I think Google isn't allowed to place conditions on distribution of the PD books they scan but are trying to get around this by implying to users that they can. It's sneaky, and as you say, fear of losing my Google (GMail!) account impacts how I react to their 'requests'.

My *guess* is that the very fact that they use the word 'request' is a sign that they know they can't enforce it. If they thought they could they'd just say 'it is a condition of downloading these files that you do not...'. But if we're guessing, what's average Joe going to do?

Anyway, I applaud your commitment to the public domain and fair use rights, keep up the good work! :)

Disclaimer: IANAL. That being said:

1) Of course public domain works can be used commercially – many publishers sell copies of Shakespeare's plays, or Greek drama, which is in the public domain.

2) As I parse it (IANAL! IANAL!), the initial material is a *request*, not a legal restriction.

3) It is indeed phrased that it might be mistaken for a terms-of-service contract. Whether this is intentional or not, is unclear.

4) The big legal problem is not copyright, but *contract* ("of adhesion"). Current US law is tending towards the view that contract can take away rights which you would have under copyright law. But it's a murky area. However, if Google said, "this is public domain book, but in consideration for us giving you this copy, you agree BY CONTRACT to the following restrictions ...", there's an argument that *is* enforceable.

Requesting an unenforceable condition is often a bad thing.

The spammers and scammers will ignore the "request", and the reasonable and co-operative honest folk (who could have done some really cool and worthwhile things with the content) are more likely to comply with the "request".

"Modifications to a public domain work may be protected by copyright and cannot be used without permission."

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-b.html

So unfortunately it's not quite as simple as one might hope. Whether adding a watermark is enough of a modification to allow the entire work to be copyrighted, I don't know. Perhaps simply removing that water mark would allow you to reproduce exactly the original public domain work, but I don't know if that would remain in the public domain.

I've heard stories (I don't know if they're true) that book publishers will sometimes take old public domain books and republish them with minor changes made throughout (fixing mistakes, adding new mistakes, whatever) and copyright that, so that anyone copying that modified work can be prosecuted.

It is my understanding that when I derive a product from a public domain work, that product is still mine and I can hold a copyright. An example would be if I write a song that the music is based on Pachelbel's Cannon in D (Very common). Someone can not legally strip the vocals out of that piece and put their own vocals in and sell that commercially. That could be construed

Now, Google is doing far less than that, they are simply taking the work and repackaging it. If I understand correctly, they CAN hold a copyright on that package as a whole. Being that it is public domain, there is nothing stopping you from grabbing that identical content somewhere else.

"In other words, Google imposes restrictions on these books which the public domain does not impose"

Philipp, you might be missing the point. Google is not imposing restrictions on the books but rather on the scanned copies of these books. You can go ahead and scan the books yourself but if you use Google's you may have to comply with their requests (personal and non-commercial use). Whether such a request is enforceable or not is a different matter.

Alex: There's the rub! (IANAL!) Google doesn't have the right to impose additional restrictions on the works just by scanning them. It's not the book that's out of copyright, it's the *content* that's entered the public domain.

Great cool stuff, Philipp. I look forward to move initiatives that enrich these systems than curbing them like Google books does.

Reto, if a symphony orchestra plays some work that is in the public domain, they still have the copyright on that particular representation although the "music itself" is public domain, no?

> Perhaps simply removing that water mark would allow
> you to reproduce exactly the original public domain work

Yes, and this is where it gets interesting. I agree that stripping out the Google guidelines and watermarks would make it more "public domain". I don't know how to do that with PDFs though – does anyone else? What's noteworthy here is that Google's guidelines say you're not supposed to remove the watermark.

And once the guidelines and watermarks are removed, I wonder if Google can hold any legal right to the (now modified) digital version of the scans.

Alex:
> You can go ahead and scan the books yourself but
> if you use Google's you may have to comply with
> their requests

That's part of what I want to find out. *Must* I comply (legally) or *may* I (voluntarily)?

Martin: That's true, and that's where it gets (moer) complicated. In music and theatre there's an inherent difference between 'writing' the work and 'performing' the work. That's not really the case in books. The copyright of a particular book is based on when it was first published, it's not different based on when a particular copy was printed.

Some publishers complicate this by adding forwards, or slight variations on the original work, but (and again I am not a lawyer) I doubt if copyright transfers to the authorised copier once the original copyright holder loses their rights.

If the orchestra made a recording of their performance and put it in the public domain, and I made the only copy of that recording and destroyed their original – am I now the copyright holder? I doubt it.

Philipp, almost by definition, anything said in a comment-pit is useless (self included – it's not *me* taking any legal risk here). You might get slightly better information from a lawyer list, though in areas where the law is uncertain, even they can be wrong (I've seen some very smart lawyers say some very certain things and later have the courts rule against their view – including a famous lawyer who owes me an apology for very wrong advice).

Here's two lawyer discussions on the topic.
People, READ THESE BEFORE COMMENTING FURTHER!

http://www.likelihoodofconfusion.com/?p=460

http://williampatry.blogspot.com/2005/07/photography-and-copyright-continued.html

Very interesting pointers Seth. Before I go on with those I want to clarify that independent of what the legal situation turns out to be, it remains that you cannot easily judge upon your rights in this case, confronted with Google's guideline and copyright laws, not as normal (non-lawyer) user, anyway (e.g. I don't claim to know if it's legal to republish the PDFs as I did; I merely have the hopes, and some good faith, that is may be).

And I also think we should remember there's a third level, beyond Google's guidelines and the laws of copyright, which is the issue of morals. E.g. Google often emphasized they're not content-creators but mere messengers, and in this case, that they've basically created a library/ books search engine, caching the books, saying...

<<This policy [of Google Book Search, former Google Print] is entirely in keeping with our main Web search engine. In order to guide users to the information they're looking for, we copy and index all the Web sites we find. If we didn't, a useful search engine would be impossible, and the same dynamic applies to the Google Print Library Project.>>
http://googleblog.blogspot.com/2005/10/point-of-google-print.html

These are the words of Eric Schmidt, who in the article further claimed "egalitarianism of information dispersal", and he expressively included the third world in the equation, and "rich and poor" citizens. This is contradicting the "You can go ahead and scan the books yourself" stance Alex called to Google's defence, as you can't simply book a flight to the University of California library if you're living in say the Philippines.

Indeed, it is quite new for Google to claim propietary rights on the works of others which they present (and even though they're not claiming this on the book itself, they're claiming it on their "cached" version, the scan). Google once stated they're ...

<<... excited to play a part in ensuring that [these public domain books], and the knowledge they contain, will be more accessible than ever for decades to come>>
http://googleblog.blogspot.com/2005/11/preserving-public-domain-books.html

"More accessible than ever", IMO, includes not imposing more limiting rights than the public domain imposes upon these works.

But now to get back on the "legal plane" with Seth's pointers, this one from Project Gutenberg:

<<Work performed on a public domain item, known as sweat of the brow, does not result in a new copyright. This is the judgment of Project Gutenberg's copyright lawyers, and is founded in a study of case law in the United States. This is founded in the notion of authorship, which is a prerequisite for a new copyright. Non-authorship activities do not create a new copyright.

Some organizations erroneously claim a new copyright when they add value to a public domain item, such as to an old printed book. But despite the difficulty of the work involved, none of these activities result in new copyright protection when performed on a public domain item:

   * scanning and optical character recognition (OCR) (...)

   * addition of trivial new content, such as images to indicate page breaks in an HTML file, or pictures of gothic letters for the first letter in a chapter, or adding or removing a few words per chapter>>
http://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Brow_Copyright

In other words, Gutenberg's lawyers say that no, you don't own the copyright to something you scanned and slightly modified. (Whether or not Google claims this right I can't tell from their guideline, actually... I'm not even sure above Gutenberg statement applies exactly to the Google case, as Google doesn't republish the OCR'd text itself, but the scan/ the images of text... again, this uncertainty is part of the issue.)

Danny Sullivan got this statement from Google:

<<We have gotten this question in the past. The front matter of our PDF books is not a EULA [end user license agreement]. We make some requests, but we are not trying to legally bind users to those requests. We've spent (and will continue to spend) a lot of time and money on Book Search, and we hope users will respect that effort and not use these files in ways that make it harder for us to justify that expense (for example, by setting up the ACME Public Domain PDF Download service that charges users a buck a book and includes malware in the download). Rather than using the front matter to convey legal restrictions, we are attempting to use it to convey what we hope to be the proper netiquette for the use of these files.>>
http://searchengineland.com/070110-094130.php

So, it is legal for me to republish this, Google emphasizes, but I've escalated this into the select group of Google experts – like Danny – to find out about that. But how is average Google-searcher Joe gonna understand what he can do with these books? Which brings us to a second question: why is Google creating this netiquette? To me, the proper netiquette for works in the public domain is "you can read, remix, republish, commercially or non-commercially, personal or public, any of the content you find in this book", and Google can go ahead and include their additional "we'd appreciate your (voluntary) link back to Google Books if you do".

Philipp, I got to this issue at SEL first and commented there, but just wanted to repeat that this is an etiquette request on the usage of the data, not a legal request: "The front matter of our PDF books is not a EULA [end user license agreement]. We make some requests, but we are not trying to legally bind users to those requests." So it's good that you ask the question to clarify things, but I think Google had a pretty even-handed response as well.

It's an interesting situation Philipp, I understand from Google's perspective that they really do want to encourage people to obey their requests. But I have to agree with you on this one – I'd rather see an explicit statement in the Front Matter that says "The following work is in the public domain, you are free to remix, edit, republish it in any way you wish, personally or commercially. As we spend a lot of time and money making these books available, and would like to ask that you <blah, blah, etc>, but you are under no obligation to do so."

(And I think the Google quote gives a good example, bundling books with malware bundling, of reasons why Google wanted to give netiquette guidance.)

I somehow doubt that the malware-bundling Evil Corp. mentioned in the example will respect a legally non-binding netiquette.

Matt, I appreciate that Google is responding to this, but if I'm frank, I consider the "malware" issue to be a strawman argument in the context of this discussion. No one wants these books to be bundled with malware. Yes, that would be bad netiquette. No, this is not what this issue is about. This issue is about Google suggesting a restriction to the rights you have for works in the public domain; this "suggestion" is enough to put off anyone who tries to do the right thing and who's not a lawyer or subscribed to search blogs. (It will *not* put off a malware bundler, who doesn't care about netiquette; that's why he bundles malware.) I think there is simply no need to reinvent the netiquette for what "public domain" means, as it has a perfectly valid reason to be defined the way it is – a part of the culture that we are specifically *allowed* to remix, republish, commercial or non-commercial, public or private. Why does Google want to redefine this?

This is an expensive project for Google, and they don't want to just give the public domain works away. This is understandable, and they are well within their rights to place their trademarked logo and copyrighted 500 word notice on the top of every book. They are also well within their rights to "place technical restrictions on automated querying," a sentence taken from their notice.

Once I obtain a copy of one of their books, I am also free to not only ignore their notices, but remove all mentions of Google from the code (they include a direct link back to the book page), as well as their watermark and notice. Google's association with this work never has to be mentioned again once it leaves their servers. The ACME company that they mention is completely within their rights to resell public domain works at a fee of one dollar per download. It is a red herring to mention that they include malware in their downloads. That may be illegal, but it is an entirely separate issue.

Philipp, the easiest way to remove the notices for one book is to use Adobe Acrobat Professional. Just go to Document > Delete Pages > 1 to 1. That's it.

As to whether or not the books actually have a watermark, it would require a serious analysis in order to determine if there is a hidden watermark on the books [3]. There is a report that each page contains a small "Digitized by Google" image that is easily discarded. http://onlinebooks.library.upenn.edu/webbin/bparchive?year=2006&post=2006-09-01,4

Further reading:
-----------------------
- Technical description of the pdfs:
   * http://www.google.com/search?q=site%3Aonlinebooks.library.upenn.edu+google-books
- Watermark detection is a serious business
   * http://scholar.google.com/scholar?hl=en&lr=&q=watermark-detection
- Google Books blog
   * http://booksearch.blogspot.com/
- Stanford's book scanner
   * http://speaking.stanford.edu/Back_Issues/SOC67/library/Robotic_Book_Scanner.html
- Open Content Alliance – a.k.a Anti-Google Alliance (although at least one university is a member of both scanning programs)
   * http://en.wikipedia.org/wiki/Open_Content_Alliance
- Where the Open Content Alliance's books are available
   * http://www.openlibrary.org/
- Google's PD opinion
   * http://googleblog.blogspot.com/2005/11/preserving-public-domain-books.html
- Debate at the NYPL w/ Lawrence Lessig
   * http://www.nypl.org/research/calendar/imagesprog/anderson92806.pdf
- Response to Philipp on GBS blog
   * http://booksearch.blogspot.com/2006/11/from-mail-bag-public-domain-books-and.html
- Google and the Myth of Universal Knowledge
   * http://www.press.uchicago.edu/cgi-bin/hfs.cgi/00/216412.ctl

Seems Philipp beat me to the punch on calling Google out on their logical fallacy w.r.t ACME malware bundling =)

Yeah, a much more relevant use case in this discussion is "Susie takes 5 pages from a public domain book obtained though Google Book Search for her AdSense-financed blog, removing the Google logo because it doesn't fit in the context of Shakespeare, but linking back to Google Book Search from her blog post's credits."

Whoopie, Susie just infringed on 3 points of Google netiquette:

1. her website is public (this goes against "we request that you use these files for personal ... purposes")
2. her website is commercial (this goes against "we request that you use these files for ... non-commercial purposes")
3. she removed the Google logo (this goes against "Please do not remove it [the Google 'watermark']")

Note that Google DOES put a copyright notice on books that are in the public domain because they are US Federal documents. See:
http://kcoyle.blogspot.com/2006/09/google-books-and-federal-documents.html

When copyright expires at the state, national and international levels on a work – and nothing that's over 100 years old in my less than humble and lay opinion should be protected by copyright at any jurisdiction – it falls into the public domain, which means that anyone and any organization, be they profit-making businesses or non-profit groups, can do whatever they want with the work. Where the waters get muddied is that more often than not cultural institutions (museums, archives, libraries, art galleries) charge a fee through a written contract for using a copy of a public domain artwork they own and do not allow the reuse of the copy without paying a further fee. While this practice helps fund these often chronically underfunded institutions, whether the contract is legally enforceable is another matter altogether. I wonder whether there's even been a court challenge. In some countries such as Canada where copyright exists only as federal legislation, provincial contract law is being used to deny the reuse of a work that's in the public domain. If anyone knows if there have been court challenges, especially in Canada, on this issue of provincial contract law vs federal copyright law and works in the public domain, please post a comment here.

I think Google's request is fair. As a fairly average person without legal training, the word "request" was enough for me to believe that it was not enforceable. I do think your concerns are not all unjustified, but how exactly will this discourage future writers or something? It's not like people are clamoring for the right to redistribute these books. People want books in order to read them, and Google's requests do nothing to block that, of course. I'm just stating my opinion on the matter, not denying anyone else's.

let me know when you get this figured out.

in the meantime...

i'll be extracting google scans from their .pdf
that contain public-domain books, and making
those scans individually accessible for remix...

for free. the public domain should be free,
in every sense of the word.

and during the entire time i am doing this,
i will continue to be thankful to google for
taking on the burden of scanning books,
a task which _should_ have been done
by the library of congress decades ago...

-bowerbird

Mysterius, I think one of the great (if not greatest) values of public domain stuff is to remix it. As an example: I often searched through this website http://gimp-savvy.com/PHOTO-ARCHIVE/ to find public domain images for use in my websites. When I want to just read, I have so much to choose from – I'll probably buy a copyrighted book from 2003 on Amazon. But when I want to have material to work with, to create new stuff out of old, I often look specifically for public domain works (or works in the Creative Commons zone).

Bowerbird, do you already have a URL to share for your project?

People don't remix books, though. They write a new one. Remixing books is also known as "plagiarism." While I don't think using text from public domain books in your new novel, what author would do that, and who would want to read a book made of scraps of other books? You can still use quotes if you want the direct text, or at least give credit in the book if you borrow their idea. You don't have to pay to borrow the same story concept, though.

I believe you can remix public domain books in a variety of ways. Thinking of a specific application is part of the creative process, so I can't hand out any blue prints. I can give you some examples: my brother-in-law remixes books into paintings, by taking larger texts from them and then painting over them. I remixed the bible into The Google Bible (http://blogoscoped.com/bible/). I also changed public domain books into accessible XHTML for online reading (http://www.authorama.com). And don't forget that many of the books include beautiful full-page illustrations that you can remix for a lot of new stuff – e.g. you can use them as "clip arts" for blog posts – so it's not just about text. Even in my own book, 55 Ways to Have Fun With Google, I remixed a fairy tale story that passed into the public domain. This only becomes plagiarism if you take "intellectual property" claiming it is "your original work", as Answers.com puts it (http://www.answers.com/plagiarism), which I believe is not the case here.

Public domain books, paintings, music, videos and more are a great source of inspiration that you can remix for new creative work, if you want to. Just think of downloading Archive.org black-and-white gov't movies from the 50s, being able to remix the original gov't message (like Duck and Cover!) into a new message, changing their original political aim... in fact this has been done by great movies like http://en.wikipedia.org/wiki/Atomic_Cafe and even the trivial ones like my http://blogoscoped.com/archive/2004_06_27_index.html#108834645937113438

I am still strugging with getting proper answer about copyright issues of google books in free domain.

I am making a website, and using part of text from these books. In no way, I am modifying these texts.

if my site is non-commericial, does it mean it is legal.

And what does it require from my side. To quote source text "name of book | taken from google books"

Now, if my site is non-commericial, does it mean i will be doing illegal things.

You can do whatever you want with the public domain books on GBS. You don't need to notify anyone.