Category: Search Engines and Discovery Systems

Pamela Samuelson has published "A Perspective on the Merits of the Antitrust Objections to the Failed Google Books Settlement" in the Harvard Journal of Law & Technology Occasional Paper Series.

Here's an excerpt:

This Article responds to critics of the antitrust objections to the ASA [Amended Settlement Agreement] by making three main points. Part II explains that Judge Chin's incomplete and unpersuasive analysis of the antitrust objections to the proposed settlement agreement is best understood as an effort to encourage the settling parties to adopt more competitive terms in any revised settlement agreement. Part III points out that the DOJ did not reach definitive conclusions on antitrust issues posed by the ASA. The DOJ was, however, obliged to submit an interim analysis because Judge Chin wanted the government's input before he ruled on whether the settlement should be approved and the DOJ did a creditable job under the circumstances. Part IV contends that there was more merit to the DOJ's antitrust concerns about the proposed settlement than some commentators have recognized.

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Pamela Samuelson and David R. Hansen have self-archived "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal" in SSRN.

Here's an excerpt:

Summary of argument: Class certification was improperly granted below because the District Court failed to conduct a rigorous analysis of the adequacy of representation factor, as Rule 23(a)(4) requires. The three individual plaintiffs who claim to be class representatives are not academics and do not share the commitment to broad access to knowledge that predominates among academics. . . .

Academic authors desire broad public access to their works such as that which the Google Books project provides. Although the District Court held that the plaintiffs had inadequately represented the interests of academic authors in relation to the proposed settlement, it failed to recognize that pursuit of this litigation would be even more adverse to the interests of academic authors than the proposed settlement was. . . .

In short, a "win" in this case for the class representatives would be a "loss" for academic authors. It is precisely this kind of conflict that courts have long recognized should prevent class certification due to inadequate representation. The District Court failed to adequately address this fundamental conflict in its certification order, though it was well aware of the conflict through submissions and objections received from the settlement fairness hearing through to the hearings on the most recent class certification motions. Because of that failure, the order certifying the class should be reversed

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In a brief, Google has asked the U.S. Second Circuit Court of Appeals to reverse the class certification decision by the United States District Court for the Southern District of New York in The Authors Guild et al. v. Google Inc. case.

Here's the brief.

Read more about it at "Google Asks Court to Ax Book-Scanning Suit from Authors Guild."

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Google and the Association of American Publishers have settled the copyright lawsuit over Google Library Project. The related Authors Guild lawsuit has not been settled.

Here's an excerpt from the Google press release:

The agreement settles a copyright infringement lawsuit filed against Google on October 19, 2005 by five AAP member publishers. As the settlement is between the parties to the litigation, the court is not required to approve its terms.

The settlement acknowledges the rights and interests of copyright-holders. US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.

Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works. . . .

Google Books allows users to browse up to 20% of books and then purchase digital versions through Google Play. Under the agreement, books scanned by Google in the Library Project can now be included by publishers.

See also the AAP press release.

| Google Books Bibliography | Digital Scholarship |

Walt Crawford has published "It Was Never a Universal Library: Three Years of the Google Book Settlement" in Cites & Insights: Crawford at Large.

Here's an excerpt:

Remember the Google Books settlement? It was going to settle a four-year-old pair of lawsuits (four years old then, eight years old now) against Google (by the Association of American Publishers, AAP, and the Authors Guild, AG) asserting that Google was infringing on copyright through its two-line snippets from in-copyright books scanned in the Google Library Project—and by the scanning itself. Later, a third group representing media photographers also sued Google for the same actions. . . .

This is a long set of notes and comments (cites & insights). It strikes me that the topic and complexity deserve that length—but note that I'm offering much briefer excerpts and comments on most items than I normally would in this sort of roundup.

After two sets of general notes and overviews (one before the settlement was rejected, one after) I'm breaking the discussion down by topics rather than chronologically.

| Google Books Bibliography | Digital Scholarship |

Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the UC Berkeley School of Law, and other scholars have sent a letter ("Academic Author Objections to Plaintiff's Motion for Class Certification") to US District Court Judge Denny Chin about class certification issues in the Authors Guild v. Google Case.

Here's an excerpt:

We believe that our works of scholarship are more typical of the contents of research library collections than works of the three named plaintiffs in this case. Betty Miles is the author of numerous children's books. Jim Bouton is a former baseball pitcher who has written both fiction and nonfiction books based on his experiences as a baseball player. Joseph Goulden is a professional writer who has written a number of nonfiction books on a variety of subjects, including a book about "superlawyers." None of these three are academic authors. Their books are aimed at a popular, rather than an academic, audience. As professional writers, their motivations and interests in having their books published would understandably be different, and likely more commercial, than those of academic scholars. Hence, our concern is that these three do not share the academic interests that are typical of authors of books in research library collections. As we explain further below, the clearest indication that the named plaintiffs do not share the same priorities typical of academic authors is their insistence on pursuing this litigation.

| Google Books Bibliography | Digital Scholarship |

In "Access to the Agreement between Google Books and the British Library," Javier Ruiz of the Open Rights Group analyzes the Google Books contract between Google and the British Library (includes a link to contract).

Here's an excerpt:

The British Library recently announced to much fanfare a deal with Google to make available online a quarter of a million books no longer restricted by copyright, thus in the public domain.

The deal is presented as a win-win situation, where Google pays for the costs of scanning the books, which will be available on both Google and BL's websites. This sounds very philanthropic from Google, however the catch is in the detail:

"Once digitised, these unique items will be available for full text search, download and reading through Google Books, as well as being searchable through the Library's website and stored in perpetuity within the Library's digital archive."

In order to find out what this really means we asked the British Library for a copy of the agreement with Google, which was not uploaded to their transparency website with other similar contracts, as it didn't involve monetary exchange.

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In "Google Books Settlement, 2008-2011," James Grimmelmann analyzes the impact of recent rulings and case resolutions on the Google Book Settlement. The rulings and resolutions are the In re: Literary Works in Electronic Databases Copyright Litigation ruling, the National Music Publishers' Association's resolution of The Football Association Premier League Limited, et al. v. You Tube, Inc. lawsuit (consolidated into Viacom v. YouTube), and the Wal-Mart Stores, Inc. v. Dukes et al. ruling.

Here's an excerpt:

The road to class-wide settlement—even to a much more modest settlement that covers only scanning and searching—now appears to be barred. What is more, in light of the freelancers' case and the Supreme Court's recent Wal-Mart case, the road to class-wide litigation also looks to be extraordinarily difficult. Google will raise many of the same adequacy of representation arguments in its opposition to class certification. It might still be more feasible for a few copyright owners holding large number of copyrights to litigate on an individual basis—but the major publishers, who best fit that bill, have all more or less made their peace with Google through its Partner Program. The odds of the authors being able to see this one through to the end have just dropped precipitously. Google is holding all the cards now, and they're all full houses.

| New: Google Books Bibliography, Version 7 | Digital Scholarship |

Frank Müller-Langer and Marc Scheufen have self-archived "Just Google It!—The Google Book Search Settlement: A Law and Economics Analysis" in SSRN.

Here's an excerpt:

Our law and economics analysis of the Book Search Project suggests that—from a copyright perspective—the proposed settlement may be beneficial to right holders, consumers, and Google. For instance, it may provide a solution to the still unsolved dilemma of orphan works. From a competition policy perspective, we stress the important aspect that Google’s pricing algorithm for orphan and unclaimed works effectively replicates a competitive Nash-Bertrand market outcome under post-settlement, third-party oversight.

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Pamela Samuelson has self-archived "Legislative Alternatives to the Google Book Settlement" in SSRN.

Here's an excerpt:

In the aftermath of Judge Chin's rejection of the proposed Google Book settlement, it is time to consider legislative alternatives. This article explores a number of component parts of a legislative package that might accomplish many of the good things that the proposed settlement promised without the downsides that would have attended judicial approval of it. It gives particular attention to the idea of an extended collective licensing regime as a way to make out-of-print but in-copyright books more widely available to the public. But it also considers several other measures, such as one aimed at allowing orphan works to be made available and some new privileges that would allow digitization for preservation purposes and nonconsumptive research uses of a digital library of books from the collections of major research libraries.

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The Library Copyright Alliance has released A Guide For the Perplexed Part IV: The Rejection of the Google Books Settlement.

Here's an excerpt from the press release:

This guide is the latest in a series prepared by LCA legal counsel Jonathan Band to help inform the library community about this landmark legal dispute.

In the Guide Part IV, Band explains why the Court rejected the proposed class action settlement, which would have allowed Google to engage in a wide variety of activities using scanned books.

As stated in the Guide, "The court concluded that the settlement was unfair because a substantial number of class members [i.e., authors and publishers] voiced significant concerns with the settlement.… However, the validity of the objections seemed less important to the court than the fact that many class members raised them."

As for the impact of the decision on libraries, Band writes that while it is too early to say what the parties will do next, "it appears that both the challenges and the opportunities presented to libraries by the settlement when it was announced in the fall of 2008 are growing narrower and more distant."

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Judge Denny Chin of the U.S. District Court Southern District of New York has denied the Amended Settlement Agreement for the Author's Guild et al. v. Google Inc. case.

Here's an excerpt from the ruling:

Before the Court is plaintiffs' motion pursuant to Rule 23 of the Federal Rules of Civil Procedure for final approval of the proposed settlement of this class action on the terms set forth in the Amended Settlement Agreement (the "ASA"). The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action—which was brought against defendant Google Inc. ("Google") to challenge its scanning of books and display of "snippets" for on-line searching—to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied. The accompanying motion for attorneys' fees and costs is denied, without prejudice.

Read more about it at "After Rejection, a Rocky Road for Google Settlement"; "GBS March Madness: Paths Forward for the Google Books Settlement"; "Google Books Settlement: Copyright, Congress, and Information Monopolies"; "Google Settlement Is Rejected"; "Inside Judge Chin's Opinion"; "Please Refine Your Search Terms"; and "Publishers Remain Committed to Expanding Online Access to Books and Upholding Copyright Despite Court Decision."

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