My reply does not speak to the direct issue of government documents, but rather to the broader issue of the use of contract law by private companies to use contract law to circumvent the copyright law which allows for the existence of texts outside of copyright — “public domain” texts.

To one extent or another, the claim is made that through ones use of the database that one agrees to restrictions on the use of the material even when there is no dispute that the underlying material is in the public domain.

I fully agree with your reading of Google’s “usage guidelines.” I also think it is a clear statement by its lawyers that they cannot, in fact, assert any control over the files. However, as I mention, below, it seems that they are finding ways to effectively limit ones use of their files by using contract law to control what certain printers are able to print.

1. Regarding Google, as your post points out, Google “asks” us to refrain from making commercial use of its PDF. As the post points out, asking does not seem to be the same as actually making the claim that commercial use of the PDF, i.e. offering the title for sale via an on demand printer is prohibited.

2. Google is, however, making efforts to make just such a use impossible. For example, I was told today by the owner of an Esspresso Book Machine that while Google has licensed its public domain books (or at least nearly two million of them) to on demand book printers who own the Espresso Book Machine (a new product effectively making its commercial debut this year, in 2010) this license carries restrictions. For a nominal fee, the license provides for printing public domain books from Google’s archive (with covers provided by Google) as long as the book has 500 or fewer pages.

However, I was told that the license also states that one cannot add material to the book, cannot, for example, add an introduction. As part of the license the owner of the on demand book printer is also prohibited from printing PDFs of Google Books that have been provided by anyone else. This means one cannot print a PDF on the Espresso Book Machine one has downloaded from Google. It also means one cannot alter a work by, for example, adding an introduction. It also means one cannot print any book over 500 pages (the limit imposed by the Espresso Book technology) by breaking a 900 page book into two volumes. [Note: I have not checked this with Google. As I said, this information is based on a conversation with the manager of an Espresso Book Machine.]

3. With regards Google, and all of the databases offering PDFs with restrictions, I think one must differentiate between the PDF and the text. Is Google making any claim to control of the words within the PDF? I think not.

4. Print publishers of public domain texts are always careful to make clear that the only thing that is copyright is the introduction to the text, or other material added by the publisher, but not the text itself.

5. Google specifically refers to “non-commercial use of the file.” The PDF is the file. On each book’s web page Google offers an (often poor) OCR version of the same text. While they do not offer this as a single file, a single file could be pieced together from what Google does offer. Google does not seem to make a claim regarding its OCR version of the text.

6. One implication of a text being in the public domain is that one is free to copy the text and use it for commercial purposes. One is free to check a public domain book out of a library, scan it, and then publish it. One is thus presumably free to print out a Google PDF, scan it, and then use it as one would wish, including publish it.

7. One is free to type out the text of a pubic domain book and re-set the type and publish the work. One can re-type a Google text and then it is free of any restrictions. Or, if the Google scan is good enough, one could print out their PDF and OCR that to obtain the text.

8.Google’s scan has a “water mark” that they placed there and that they say must not be removed as it is, in effect, the mark of their claim to ownership of the PDF. While a copyrighted text will, eventually, go out of copyright, and as government documents are never copyrighted, Google’s claim (and those of the owners of other databases as well) seems to be a claim with no termination clause. Even awful crimes have statutes of limitations. Can these corporate claims of control really apply for forever?

Google does not place a copyright notice on the PDF. No copy of the scanned text has been registered with the US copyright office, nor has the PDF been deposited at the US Library of Congress. That Google has put money into the project of scanning books is their business, both in the sense, literally, of their business and also in the figurative sense. In a sense, this is the essence of Google’s asking for control of the PDF’s they make available, and it is the basis for all of the claims made by the databases that make claims (all do not). In essence, the claim is, we spent money scanning texts (or in the case of Gale Research for many of their texts they spent money scanning microfilm), and we spend money making these texts available to you online and therefore we have a right to control their use.

9. Public domain images in museums are controlled by museums through their control of copyrighted reproductions of the images. The Mona Lisa is in the public domain. If you walk into the Louvre and take its picture you then control that image in ones camera. The image in ones camera is a piece of intellectual property that is protected by copyright law. Thus, museums go to great lengths to prohibit photography altogether, or photography that would be of a quality that would enable one to publish the image, hence the universal prohibition of taking photographs in museums with a tripod. Google does not seem, though, to make the claim that their PDF of the original public domain work constitutes a new copyrightable product. This cannot be said of all the other database owners.

10. JSTOR seems to take one of the more extreme views of its ownership rights. Here is what JSTOR says on its “wrapper” page to the PDF of an article published in 1868. [The US law that protects the rights of software producers mentions the use of a “wrapper”, something that is in front of whatever it is one is trying to protect and must, ideally, be clicked through to get to the product. Hence, all the “I accept” buttons that one must get through to get to software. Google’s front page to the PDF is its “wrapper” in a legal sense, as is JSTORs statement attached to each of its downloaded PDF files that, “Your use of the JSTOR archive indicates your acceptance of JSTOR’s Terms and Conditions of Use available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR’s Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use.”

Not only is a professor prohibited from printing out 12, much less 150 copies of an article, even if the underlying article is in the public domain and thus if the professor had a copy of the original journal the copies would be perfectly legal, but JSTOR seems to make claims over the actual words.

In the case of the wrapper I am quoting here, JSTOR seems to claim control over the “content” of a PDF of a text that was first published in the 19th century and is thus without doubt in the public domain.

11. In conclusion, it is my sense that few, if any, of the claims controlling the material in these databases have been tested in the courts. I hope that they are tested, and that the public domain wins. It is not just a mattter of attempting to privatize government documents, it is really an attempt to privatize as much of the the public domain as they can manage to privatize, either legally, or through intimidating langauge in legal-sounding “wrappers.”

Readers may be interested in the discussion around this aspect of Google’s scanning efforts on the website of the American Library Association – http://www.law.umaryland.edu/marshall/ .

Thanks Alix for turning your attention to this.