I have blogged twice before on Google Book Search (Nov. 18: “Hypos for My Copyright Class” and Nov. 11: “Fair Use and Inefficient Bundling”), but having started a new quarter of antitrust today, I am now starting to use GBS more systematically. That use has quickly raised a number of questions regarding how we will work with public domain works and with government works.
Tomorrow I am teaching excerpts from the Supreme Court’s 1911 opinion in the Standard Oil case. That case resulted in the break-up of Standard and killed off the literal reading of Section 1 of the Sherman Act announced by the Court in Trans-Missouri in 1897.
The Standard Oil opinion describes the development of the English monopoly law of forestalling, regrating and engrossing. Don’t know what those are? Me either, really, but that’s where GBS comes in.
So go to books.google.com and search on “engrossing edward VI” (a search suggested by the Supreme Court’s opinion in Standard). The first item should be the “The Penny Cyclopædia of the Society for the Diffusion of Useful Knowledge” described by GBS as a public domain work from 1843.
The second item listed is Adam Smith’s The Wealth of Nations, or, more precisely, a 2000 edition of books IV and V available from Penguin Classics for $15.00. Smith has a terrific discussion of why Edward VI was wrong to limit engrossing—described by Smith as wholesaling or the buying of corn with the intent of reselling it—and Charles II’s steps towards greater freedom for middlemen.
But in GBS, we can only see five pages of Smith’s work easily. This particular edition of The Wealth of Nations is available through the Google Books Partner Program, and the material bears the legend “Copyrighted Material.” That brings with it a two-pages forward and backward limit.
Of course, the publication of Smith’s work was the second great event of 1776 (or was it the first?), so it would be surprising if the work remained subject to copyright. And indeed, if you flip over to the second page of the search results, we find an 1869 edition of The Wealth of Nations listed as in the public domain and we have full, unfettered access to that book. For now, GBS users will have to anticipate this possibility, but Google might think about linking over from restricted works to unrestricted versions of the work.
Switch from the public domain to governmental works. The fourth item to appear in the search is Trust Laws and Competition, a 1916 work authored by the U.S. Bureau of Corporations. We see only snippets from this book as presumably the Bureau of Corporations hasn’t consented to broader use.
Actually, the Bureau of Corporations doesn’t even exist anymore and hasn’t existed for more than 90 years. It came into existence while Theodore Roosevelt was president—he hoped to use the bureau to exert greater executive control over the economy—and was folded into the new Federal Trade Commission when it was created in 1914. (Dennis Carlton and I have a draft paper for a NBER volume in which we lay out some of this history.)
We can talk generally about the difficult of tracking down authors and what that means for an undertaking like GBS, but we should start with the low-hanging fruit and Trust Laws and Competition is exactly that. Under the current U.S. copyright statute, works of the U.S. government don’t enjoy copyright protection and instead become part of the public domain. I am not enough of a copyright maven to know what the rule was in 1916 (perhaps we will find out in the comments), but if nothing else, the feds should consent to the use of these works.
Perhaps the U.S. Copyright Office can jump in and offer guidance as to how this type of consent should be implemented.