I have a couple of comments on the new Lessig presentation on Google Book Search. I will spread those comments over several entries.
Lessig gives some figures on what percentage of books are in the public domain, in copyright but out of print, and in copyright and in print.
He then says that with books in copyright and in print, Google will only grant as much access as the copyright holder will permit.
That seems to be completely wrong. The whole lawsuit is by publishers and authors of books in print, listed in exhibit A in the publishers' complaint.
The decisive difference is not whether books are still in print or not, but whether the copyright holder has granted Google a license or not.
Not all books that Google uses without a license are out of print. One might also add that by far not all books out of print are orphans, a point confused by Randy Picker in a short reaction to Lessig's presentation. Picker writes "Google seems to working with copyright holders of books in print". However, the whole lawsuit is about whether Google is obliged to work with the publishers of the books listed in the complaint or whether they can unilaterally do whatever they want under some fair use right.
Therefore I think that dividing books in the three categories "public domain", "out of print" and "in print" only confuses the issues regarding this particular lawsuit.
However, I completely agree that it should make a big difference for the remedies available if a book is in print or not, calling this a "no sale doctrine".
Posted by Karl-Friedrich Lenz at January 14, 2006 08:13 PM