出版与作家生涯2013gigaom.com
谷歌赢得图书扫描案：法官认定“合理使用”，并列举诸多益处
Google wins book-scanning case: judge finds “fair use,” cites many benefits
导读
这篇报道谷歌图书扫描案被判“合理使用”，评论围绕版权法应机械适用还是回到立法目的、版权制度的历史与作者激励展开。对写作者来说，它提醒我们理解版权与合理使用的边界，以及作品传播与创作激励之间的张力。
可以直接用的写作要点
- 01
引用他人作品时，不能只按引用长度判断，还要看使用目的、是否替代原作品市场等综合因素。
- 02
版权制度的核心目的之一是激励创作、促进知识传播，讨论版权时别只站在“保护”一边。
- 03
面对规则先回到它要解决的问题和目的，再决定如何应用；写作中的体裁规范也一样，别机械套用。
- 04
作品被数字化传播未必损害作者，绝版书的授权扫描可能带来原本没有的收益。
HN 评论精选
法官应回到版权法促进艺术与科学的根本目的，而非机械套用法条。
法律尤其是版权法，可以机械适用，也可以基于洞见适用，结果可能差别很大。版权法里本有许多理由让法官几乎直接驳回谷歌的合理使用抗辩：谷歌擅自复制约2000万件受版权保护作品，不是为某个具体教育目的复制选段，而是整本复制，还把这些副本用于营利、增强业务和利润。综合看，法院本可认定其使用不符合合理使用。但Chin法官没有机械适法，而是回到宪法规定的版权目的——促进艺术与科学——仔细思考法律应如何适用，并围绕版权法四要素展开。
grellas查看英文原文
Law in general, and copyright law in particular, may be applied mechanically or it may be applied with insight, and the results can vary widely depending on which approach is used. There is a lot in copyright law that would have allowed a judge to reject Google's fair use defense almost out of hand, as it were. Google had the temerity to copy some 20 million copyrighted works without the authors' permission. It did not limit itself to copying select portions for some discrete educational purpose but copied every work in its entirety. And it used those copies in a for-profit enterprise to enhance its business and advance its profitability. Taken as a whole, such factors would have allowed a court to conclude that the uses Google made of the copyrighted works readily failed to meet the requirements of the fair use defense and thus left the book industry, in effect, frozen in an early 20th century analog world. Judge Chin, however, is obviously a judge who knows how to apply the law with insight and this shows him to be an outstanding jurist. Rather than applying the law mechanically, he stepped back to first principles and thought through very carefully how the copyright law ought to be applied in order to fulfill its intended purpose - that is, as set forth in the Constitution, in order to promote the arts and sciences. His decision goes through the Copyright Act's four statutory factors primarily used for determining whether a fair use defense exists or not but is grounded in something far deeper than those factors. Yes, Google's use of the copied works was "highly transformative" and this weighs heavily in favor of a finding of fair use (first factor). Yes, the nature of the copyrighted works is that they are all published works and mostly non-fiction, and this too weighs in favor of fair use (second factor). Yes, the amount of copying is of entire works but Google offers search results in carefully controlled snippets, and these factors combined weigh slightly against fair use (third factor). Yes, the effect of the copying on the market or value of the copyrighted works actually enhances the sales of books for the copyright holders by increasing their visibility and making them accessible to potential buyers, and this too favors a finding of fair use. All this is true, and is pretty carefully analyzed in the decision. But, in the end, this technical analysis is merely the backdrop for what primarily motivated the judge's decision and that was his overwhelming sense that laws must be applied in light of their intended purposes and not used to choke off the results that the very law in question was intended to further. In other words (and these are my words and my assessment and not the judge's), it is ludicrous in an increasingly technological world that society should not benefit from a project so stupendous as that of a private party investing enormous resources to transform millions of obscure works of literature into a treasure trove of searchable materials made freely available to users of all types, including those who have historically been physically impaired from using them at all, and all the while taking all reasonable steps to ensure that these materials are offered in a way that respects the legitimate concerns of the copyright holders. Copyright gives authors substantial rights to control what is done with their works. It prevents others from exploiting such works commercially without their permission. But this has never prevented others from making fair use of those works for educational goals and the like. In educational settings, it has been possible for a long time now to copy quite freely from copyrighted works for class projects and the like. Such copying is deemed fair because, while not significantly impairing the true commercial rights of copyright holders, it furthers the progress of arts and science. And that is the point of what Google is doing here with its books project. In ways for which many…
版权史是控制与激励的双重传统，现代版权应回到激励创作而非垄断。
版权最初是一种控制人的制度，涉及金钱控制和对思想/表达的控制。金钱控制可追溯到古代：抄一本书需要昂贵且识字的奴隶，成本约等于出版；思想控制可追溯到教会审查制度，通过许可证限制出版以压制批评，后来被称为“垄断”。实践中两者结合：印刷商/出版商既被限制和许可，也被规定能印什么；这既服务教会/国家维护教义或国家法律，也服务原出版商的金钱利益。出版商与政府形成互惠 pact，牺牲普通公民。1710年《安妮法令》改变局面：打破出版垄断，并提出“保护”作品免受复制主要是激励学者继续创作——否则有学问的人为何写作？今天版权游说仍基本沿用此论证。
peterwwillis查看英文原文
Consider that copyright originated as system with which to control people. The types of control sought were those of monetary, and thought/expression of thought. Monetary control goes back to antiquity, where copying a book required expensive literate slaves to copy a book for about the same price as publishing one. Thought and expression control goes back to the censorship systems of the church, who sought to prevent critical dissent via restricting publishing using licenses - later termed a "monopoly". These two systems were then combined in practice. Not only were the printers/publishers restricted and licensed, but what they could print or reprint as well. This control over what was published not only served the church and/or state's interests in enforcing dogmatic or state law, but also the monetary interests of the original publishers of a work. In essence, the publisher and the government form a pact to ensure each other's mutual interests, at the expense of the common citizen. It wasn't until 1710 that the game changed. The Statute of Anne ushered in not only the destruction of publishing monopolies, but the argument (in form of law) that "protecting" a work from copying was primarily an incentive for scholars to keep churning out more works - the argument summarized as: "Why would learned men compose and write useful books unless there was financial incentive?" Flash forward to today, and that's basically still the same argument used by anyone lobbying for copyright of anything. If it's copied and nobody gets paid, nobody will make anything [intellectual/creative/etc] anymore. Consider how amazingly specious this argument is today. Look at Wikipedia. Look at YouTube. Look at all the works being published under all the subversive licenses that are intended to surmount the aged limitations of copyright law. Do we really care to restrict what content you can produce, or if someone gets paid for it? More and more the arguments are about simple attibution, or freedom of use, than anything else. All this decision finds is that the copying of books is by and of itself no longer a harmful act. But we've known that for decades.
作者应接受绝版书数字化带来的额外授权收入，而非一味拒绝。
这是个不错的反转。Chin早先的裁决让我以为他已判作者公会胜诉。接下来的问题是，作者们是否愿意回到谈判桌，允许谷歌为把绝版书扫描件卖给别人而付钱给他们。这本该是显而易见的“这是你原本得不到的钱！”，但如我们所见，免费的钱永远不够多。
ChuckMcM查看英文原文
That was a nice turnaround. The earlier decisions by Chin had me thinking he had already decided for the Authors Guild (so tempted to say AG there but that reads 'attorney general' sigh). Now the next question is whether or not the Authors will come back to the table in being willing to let Google give them money for selling an out of print scan of their book to someone. That should be a no brainer "hey money you would not otherwise get!" but as we've seen there is never enough free money to make it worthwhile.
起诉扫描索引类似网站主起诉搜索引擎，作者公会可能是在寻租而非保护作者利益。
我们可以无休止争论判决对错，但我有点惊讶作者公会竟起诉谷歌。这就像网站主起诉谷歌抓取、索引并提高网站曝光。谷歌所做显然有利于整个图书业。也许作者公会更想寻租，而非真正保护任何人利益；法官想必也注意到了。
tn13查看英文原文
We can endlessly argue over the correctness of this decision but I am little surprised that authors guild actually sued Google for this. It is like website owners suing Google for crawling, indexing and increasing visibility of their website. Clearly, what Google had done was beneficial for the entire book industry. May be the Authors guild was more interested in some kind of rent seeking rather than actually protecting anyone's interest. I am sure even that must have been noticed by the judge.
同类还值得读
写书：值得吗？
Writing a book: is it worth it?
Martin Kleppmann（《设计数据密集型应用》作者）复盘写书到底值不值：金钱回报低、耗时极长，但带来了可见度、信任和职业机会。
出版与作家生涯2020 · 642 分 · 287 评4 条写作要点编辑精选写书并不是个好主意
Writing books is not really a good idea
这篇文章讨论靠写书谋生的现实难度，评论区从版税数学、收入预期和写作目标三个角度补充了作者视角。
出版与作家生涯2021 · 577 分 · 609 评4 条写作要点编辑精选如何自助出版一本书：实用资源清单
How to self-publish a book: A handy list of resources
这是一份关于「如何自助出版一本书」的资源清单帖，涵盖从编辑、排版到 ISBN、销售渠道的实操工具与花费。
出版与作家生涯2018 · 558 分 · 88 评4 条写作要点编辑精选我自助出版一本Ruby on Rails书，赚了7万美元
How I Made $70k Self-Publishing a Book about Ruby on Rails
这是一篇 Ruby 开发者自述：他把一套 Rails 性能课程（书＋视频＋答疑）自出版，一年毛收入约 7 万美元，并总结了选题、定价、营销等经验。
出版与作家生涯2017 · 539 分 · 175 评4 条写作要点编辑精选石黑一雄警告年轻作家因“恐惧”而自我审查
Sir Kazuo Ishiguro warns of young authors self-censoring out of 'fear'
石黑一雄提醒年轻作者因“恐惧”而自我审查，即这条帖子讨论的核心。
出版与作家生涯2021 · 396 分 · 641 评5 条写作要点编辑精选