Category: Mass Digitizaton

The U.S. Department of Justice has filed an objection to the Google Book Search Settlement.

Here's an excerpt:

Nonetheless, the breadth of the Proposed Settlement—especially the forward-looking business arrangements it seeks to create—raises significant legal concerns. As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome—the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status—is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 ("Rule 23") are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.

This Memorandum sets forth the concerns of the United States with respect to the current version of the Proposed Settlement; these concerns may be obviated by the parties' subsequent changes to the agreement. Commenters' objections to the Proposed Settlement fall into three basic categories: (1) claims that the Proposed Settlement fails to satisfy Rule 23; (2) claims that the Proposed Settlement would violate copyright law; and (3) claims that the Proposed Settlement would violate antitrust law. In the view of the United States, each category of objection is serious in isolation, and, taken together, raise cause for concern. . . .

This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws.

Read more about it at "Do Justice Department Objections Spell Doom for Google's Online Book Deal?," "DOJ: Court Should Reject Google Book Search Settlement," and "Government Urges Changes to Google Books Deal."

The Association of Research Libraries has released "Summary on House Committee on the Judiciary Hearing: 'Competition and Commerce in Digital Books' (Sept. 10, '09)."

Here's an excerpt:

The panel of witnesses was evenly divided on these issues, with four unequivocally in favor of the settlement, including representatives from Google and the Authors Guild. Three witnesses were unequivocally opposed, including Register of Copyrights Marybeth Peters and a representative from Amazon.com. The eighth witness, law professor Randall Picker of the University of Chicago, was ambivalent and suggested several changes that he felt would cure potential problems with the Settlement. A complete list of witnesses appears on the last page of this summary, with hyperlinks to the written testimony of each witness.

A digital video of David C. Drummond, Senior Vice President of Corporate Development and Chief Legal Officer at Google, testifying at the House Judiciary Committee hearing on "Competition and Commerce in Digital Books" is available on YouTube.

The Federal Republic of Germany has filed a lengthy objection to the Google Book Search Settlement.

Here's an excerpt:

The proposed Settlement also attempts to characterize itself as applying to actions taken only within the United States and, hence, without impact in other countries where U.S. copyright rules do not apply. Nowhere is this more clearly incorrect than in the realm of making the books available over the Internet. . . .

Privacy is another key area of conflict. The proposed Settlement has few provisions protecting the privacy of authors, publishers or users. In sharp contrast, Germany strongly protects the privacy of individuals who use the Internet through the Federal Data Protection Act (Bundesdatenschutzgesetz or "BDSG") of 1990, as amended in 2009, and the Telemedia Act (Telemediengesetz or "TMG") of 2007, as amended in 2009. . . .

The proposed Settlement raises an even more fundamental issue of fairness, causing concern that German authors may find their own voices unheard. The plaintiff Authors Guild, representative of the author sub-class, cannot adequately and fairly represent German authors or their interests because of its limitations on membership. For an author to join the Authors Guild, he or she must have been published by an established American publisher. . . .

Similarly, the plaintiff Association of American Publishers does not adequately and fairly represent German publishers or their interests because its membership is only open to "all U.S. companies actively engaged in the publication of books, journals, and related electronic media." . . .

For the reasons summarized above [the text has more objections than those abridged here], the proposed Settlement will have an immediate impact upon German authors, publishers and digital libraries by setting a industry-changing precedent that not only gives defendant Google an unfair advantage over all other digital libraries (commercial and non-commercial) in the United States and Germany, but also will flout German laws that have been established to protect German authors and publishers, including with respect to digital copying, publishing and the dissemination of their works. The decision of this Court with respect to this Settlement will have the dramatic and long-range effect of creating a new worldwide copyright regime without any input from those who will be greatly impacted — German authors, publishers and digital libraries and German citizens who seek to obtain access to digital publications through the Google service.

In "Google Book Search Settlement: A Publisher's Viewpoint," Tim Barton and Barbara Cohen of Oxford University Press discuss the Google Book Search Settlement with Mary Minow.

Here's an excerpt:

[Barton] Finally, it is also worth considering what happens if the settlement fails. The settlement offers us a vision of a world where all Americans have access—for free—via c. 20,000 public libraries and higher education institutions—to millions of works which are not now available. They would also have substantial free access to those same titles from every (online) computer in the country. Consumers could also purchase these titles (for what I believe will be a reasonable price), and institutions can subscribe to them (again for what I believe will be a reasonable price). The alternative is access to snippets, at most.

The availability of a book used to be determined either by whether a publisher could justify a print run, or by access to the specialized collections of a relatively small number of libraries. Printing technology and cost structures meant that books were put out of print long before their useful lives were over. We now live in a time when technology and the different commercial dynamics around internet search have combined to give us an unprecedented opportunity to make available again the ideas and work of millions of such books written by generations of scholars and writers. Why wouldn't we grasp that opportunity?

Jerry A. Hausman and J. Gregory Sidak have self-archived "Google and the Proper Antitrust Scrutiny of Orphan Books" in SSRN.

Here's an excerpt:

We examine the consumer-welfare implications of Google's project to scan a large proportion of the world's books into digital form and to make these works accessible to consumers through Google Book Search (GBS). In response to a class action alleging copyright infringement, Google has agreed to a settlement with the plaintiffs, which include the Authors Guild and the Association of American Publishers. A federal district court must approve the settlement for it to take effect. Various individuals and organizations have advocated modification or rejection of the settlement, based in part on concerns regarding Google's claimed ability to exercise market power. The Antitrust Division has confirmed that it is investigating the settlement. We address concerns of Professor Randal Picker and others, especially concerns over the increased access to 'orphan books,' which are books that retain their copyright but for which the copyright holders are unknown or cannot be found. The increased accessibility of orphan books under GBS involves the creation of a new product, which entails large gains in consumer welfare. We consider it unlikely that Google could exercise market power over orphan books. We consider it remote that the static efficiency losses claimed by critics of the settlement could outweigh the consumer welfare gains from the creation of a valuable new service for expanding access to orphan books. We therefore conclude that neither antitrust intervention nor price regulation of access to orphan books under GBS would be justified on economic grounds.

In "Opening the Book," Peter Brantley and Gary Reback outline the Open Book Alliance's objections to the Google Book Search Settlement.

Here's an excerpt:

The settlement is bad for libraries and schools: While a handful of large and well-funded university libraries participated in the Google book-scanning effort, many other educational institutions and libraries will be forced to pay monopoly prices for access to a wide swath of knowledge, straining already-stretched budgets and creating a system of haves and have-nots in our nation's education system. Community libraries would get at a single terminal to Google's private book database, and libraries serving our nation's children in K-12 schools would get absolutely nothing. The settlement widens the digital divide by limiting access to digital books in financially hard-hit communities that have budget-constrained libraries.

In "Unsettled: The PW Survey on the Google Book Settlement," Andrew Richard Albanese summarizes the findings of a survey of readers of Publishers Weekly newsletters about the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

If there is good news for the architects of the deal, it is that net support for court approval outweighs opposition—overall, 41% of respondents supported approval of the settlement, while 23% opposed the deal. Just weeks before the September 4 deadline for opting out or objecting to the settlement, however, it is notable that more than a third (36%) remain unsure of or indifferent to the settlement. Publishers (52%) support the settlement in the greatest numbers, followed by authors (42%) and librarians (29%).

In "PW Survey: Librarians On the Fence Regarding Google Settlement," Norman Oder summarizes the findings of a survey of 225 librarians about the settlement.

Here's an excerpt:

Regarding court approval of the settlement, 37% said they were unsure, while 29% supported the settlement and 21.5% said they opposed it.

In "Europe Divided on Google Book Deal," The New York Times reports that the German government intends to file a brief in the Google Book Search Copyright Class Action Settlement case opposing the settlement as "illegal."

The Wall Street Journal and other news sources are reporting that a powerful new coalition is being formed to fight the Google Book Search Copyright Class Action Settlement. Amazon, the American Society of Journalists and Authors, the Internet Archive, Microsoft, the New York Library Association, the Special Libraries Association, Yahoo have been named as potential participants. Antitrust lawyer Gary L. Reback will work with the coalition.

Read more about it at "Google Rivals Will Oppose Book Settlement," "Tech's Bigs Put Google's Books Deal in Crosshairs," and "Tech Giants Unite against Google."

In "Why is the Antitrust Division Investigating the Google Book Search Settlement?," noted copyright expert Pamela Samuelson examines the DOJ Antitrust Division's investigation of the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

My concerns about the competition-policy consequences of the settlement center on the market for institutional subscriptions. The settlement gives Google the right to have and make available the contents of a universal library of books. Anyone else could build a digital library with public domain books and whatever other books it could license from publishers or BRR. But no one else can offer a comparably comprehensive institutional subscription service because only Google has a license to all out-of-print books. Google's optimistic estimate is that only 10 percent of the books in the corpus will really be "orphans," but 10 percent is still roughly two million books. Suppose the real percentage of orphans is closer to 30 percent and another 20 percent of those whom BRR tries to sign up tell the BRR reps to get lost.

Members of the University of California's Academic Council and the chair of the Academic Senate’s Committee on Libraries and Scholarly Communication have submitted a letter about the Google Book Search Copyright Class Action Settlement to the U.S. District Court for the Southern District of New York.

Here's an excerpt:

We have three main concerns about the proposed settlement agreement. First, to maximize access to knowledge, prices should be reasonable. Unfortunately, the proposed settlement agreement contains inadequate checks and balances to prevent price gouging and unduly restrictive terms for purchasers of books and institutional subscribers. Second, the agreement does not contemplate or make provision for open access choices that have in recent years become common among academic authorial communities, especially with regard to out of print books. The settlement agreement only contemplates that authors would monetize their books and related metadata through the Book Rights Registry (BRR). This is especially worrisome as to the millions of out of print, and likely orphan, books. Third, the agreement contemplates some monitoring of user queries and uses of books in the Book Search corpus that negatively impinge on significant privacy interests of authors and readers and undermine fundamental academic freedom principles.

Read more about it at "U.C. Professors Seek Changes to Google Books Deal."