Yesterday I clicked on a link to a Forbes.com post and was greeted by a an insterstitial page that said only:

Kindness is a language which the deaf and the blind can read.

This raised a few questions:

• What was going through Forbes’ head when it decided to show us this pap? Does Forbes think that maybe we’re on the verge of kindness and just need this nudge?

• Did Twain ever actually say this?

• Why is there any question about what the deaf can read?

So I turned to Google. Herewith my findings:

1. There are a number of variations, including the more logical

“Kindness is the language which the deaf can hear and the blind can see.”

2. At Google Books, there are 1,800 results for “mark twain” kindness deaf. The ones I poked at do not provide a source for the quote, although The Gratitude Attitude footnotes it…but Google Books doesn’t show the page with the footnote.

3. If you search Google Books by author for the words “kindness,” “blind,” and “deaf”, you get nine results. None of the four that have the quote cite a source for it.

4. Google Books has an Advanced Search page: http://www.google.com/advanced_book_search. It produces a query at plain old Google of the form:

kindness deaf blind inauthor:”Mark Twain”

Two paired über-conclusions:

1. Mark Twain did not say this quote OR Mark Twain said it but it was not recorded in a work indexed by Google Books.

2. My searching skills are inadequate OR I just don’t care enough.

QuoteInvestigator.com (twitter: Quote Investigator) has taken up this case and reports the following (earliest at the top):

@john_overholt @dweinberger Prelim analysis: Probably not Twain. Version appeared 1861. Variants evolved. Version assigned to Twain by 1942

— Quote Investigator (@QuoteResearch) August 17, 2013

@john_overholt @dweinberger May 19 1942: Walter Winchell attrib Twain: Kindness is a language which the deaf can hear and the blind read

— Quote Investigator (@QuoteResearch) August 17, 2013

@john_overholt @dweinberger Feb 2 1861: New York Ledger: Anon: Kindness is a language which the dumb can speak and the deaf understand

— Quote Investigator (@QuoteResearch) August 17, 2013

@john_overholt @dweinberger Forbes Quotation database has inaccuracies derived from problematic secondary sources, I think

— Quote Investigator (@QuoteResearch) August 17, 2013

@john_overholt @dweinberger Epigrammatist Christian Bovee leading candidate for crafter. In 1862 book: Intuitions & summaries of thought

— Quote Investigator (@QuoteResearch) August 17, 2013

@john_overholt @dweinberger Bovee: Kindness. A language which the dumb can speak, and the deaf can understand. http://t.co/vsc47P1Boc

— Quote Investigator (@QuoteResearch) August 17, 2013

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Thanks to the persistence of Javier Ruiz of the British Open Rights Group, you can now read [pdf] the contract between the British Library and Google Books. Google has shrouded its book digitization contracts in non-disclosures wrapped in lead sheathing that is then buried in collapsed portions of the Wieliczka salt mines. It took a Freedom of Information Act request by Javier to get access, and Google restricts further re-distribution.

Javier points out that the contract is non-exclusive, although the cost of re-digitizing is a barrier. Also, while the contract allows non-commercial research into the scanned corpus, Google gets to decide which research to allow. “There is also a welcome clause explicitly allowing for metadata to be included in the Europeana database,” Javier reports.

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Google’s educational copyright cartoon is amusing in a Ren and Stimpy sort of way

But it’s disturbing that the cartoon purposefully makes the Fair Use “explanation” unintelligible. Presumably that’s because Fair Use is so complex and so difficult to defend that Google doesn’t even want to raise it as a possibility. Nevertheless, it seems like a missed opportunity to do some education. Worse, it’s a sign that we’ve pretty much given up on Fair Use.

Likewise, many of us were disappointed when Google Books dropped its Fair Use defense and instead came up with a settlement (since overturned) with the authors and publishers. It was another lost opportunity to provide Fair Use with some clarity and oomph.

Fair Use doesn’t need just a posse (Lord bless it). It could use a bigtime hero with some guts.

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Having written in opposition to the Google Books Settlement (1 2 3), I was pleased with Judge Chin’s decision overall. The GBS (which, a couple of generations ago would have unambiguously referred to George Bernard Shaw) was worked out by Google, the publishers, and the Authors Guild without schools, libraries, or readers at the table. The problems with it were legion, although over time it had gotten somewhat less obnoxious.

Yet, I find myself slightly disappointed. We so desperately need what Google was building, even though it shouldn’t have been Google (or any single private company) that is building it. In particular, the GBS offered a way forward on the “orphaned works” problem: works that are still in copyright but the owners of the copyright can’t be found and often are probably long dead. So, you come across some obscure 1932 piece of music that hasn’t been recorded since 1933. You can’t find the person who wrote it because, let’s face it, his bone sack has been mouldering since Milton Berle got his own TV show, and the publishers of the score went out of business before FDR started the Lend-Lease program. You want to include 10 seconds of it in your YouTube ode to the silk worm. You can’t because some dead guy and his defunct company can’t be exhumed to nod permission. Multiply this times millions, and you’ve got an orphaned works problem that has locked up millions of books and songs in a way that only a teensy dose of common sense could undo. The GBS applied that common sense — royalties would be escrowed for some period in case the rights owner staggered forth from the grave to claim them.. Of course the GBS then divvied up the unclaimed profits in non-common-sensical ways. But at least it broke the log jam.

Now it seems it’ll be up to Congress to address the orphaned works problem. But given Congress’ maniacal death-grip on copyright, it seems unlikely that common sense will have any effect and our culture will continue to be locked up for seventy years beyond the grave in order to protect the 0.0001 percent of publishers’ catalogs that continue to sell after fourteen years. (All numbers entirely made up for your reading pleasure.)

As Bob Darnton points out, this is one of the issues that a Digital Public Library of America could address.

James Grimmelmann has an excellent and thorough explanation of the settlement, and a prediction for its future.

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