Category: Search Engines and Discovery Systems

The New York Law School Law Review has published a special issue containing papers from the NYU Law School's October 2009 D Is for Digitize conference on the Google Books lawsuit and settlement.

Here are the papers:

• "D Is for Digitize: An Introduction," James Grimmelmann
• "Google Book Settlement and the Fair Use Counterfactual," Matthew Sag
• "Fulfulling the Copyright Social Justice Promise: Digitized Textual Information," Lateef Mtima & Steven D. Jamar
• "Orphan Works and the Google Book Search Settlement: An International Perspective," Bernard Lang
• "H Is for Harmonization: The Google Book Search Settlement and Orphan Works Legislation in the European Union," Katharina de la Durantaye
• "Continued DOJ Oversight of the Google Book Search Settlement: Defending Our Public Values and Protecting Competition," Christopher A. Suarez
• "Digitial + Library: Mass Book Digitization as Collection Inquiry," Mary Murrell
• "The Why in DIY Book Scanning," Daniel Reetz

| Digital Scholarship |

The ALA Washington Office has released digital videos of the Panel Discussion on Life after the Google Book Search Settlement at ALA Annual.

Here's an excerpt from the panel announcement:

The ALA Washington Office is hosting the ALA ad hoc Google Task Forces' breakout session titled "Panel Discussion on Life after the Google Book Search Settlement (GBS)" which will explore the possible court rulings – approval, denial or permutation there in – and how libraries would be impacted.. . .

Jonathan Band, intellectual property attorney and counsel for the ALA, will lead the discussion and pose questions to an expert group of panelists. Invited panelists include a representative from Google (Johanna Shelton-confirmed), a professor from the New York University Law School (James Grimmelmann-confirmed), a representative from the U.S. Copyright Office and a librarian from a GBS participating library.

Daniel J. Gervais has self-archived "The Google Book Settlement and the TRIPS Agreement" in SSRN.

Here's an excerpt:

The proposed amended settlement in the Google Book case has been the focus of numerous comments and critiques. This "perspective" reviews the compatibility of the proposed settlement with the TRIPS Agreement and relevant provisions of the Berne Convention that were incorporated into TRIPS, in particular the no-formality rule, the most-favored nation (MFN) clause, national treatment obligations, and the so-called three-step test, which constrains the ability of WTO Members to provide new exceptions and limitations to copyright rights.

BroadbandBreakfast.com has released a digital video of the Intellectual Property Breakfast Club's the Google Book Search Settlement and E-Book Licensing session on May 11, 2010.

Here's an excerpt from the announcement:

The panelists included:

• Jonathan Band, Counsel, Library Copyright Alliance
• Michael Capobianco, Vice President, Science Fiction & Fantasy Writers of America
• Sherwin Siy, Deputy Legal Director, Public Knowledge

Cynthia S. Arato, a Partner at Macht, Shapiro, Arato & Isserles, has sent an eighteen-page memo on the Google Books Settlement to the Open Book Alliance that summarizes "the objections and argument that we lodged against the proposed settlement of the 'Google Books' lawsuit on behalf of leading foreign publishing and authors' associations, foreign publishers, and foreign authors."

Here's an excerpt:

Numerous provisions of the proposed Google Books settlement would, if approved, violate the treaty obligations of the U.S. For this reason, and because of its myriad other defects, the settlement should not be approved by the court. If the settlement is approved, it may give rise to legal action against the U.S. before an international tribunal and will certainly expose the U.S. to diplomatic stress.

The Information Technology and Innovation Foundation has released a digital video of its Copyright, Content and Class Action Lawsuits: A Debate on the Google Book Search Settlement meeting.

Participants included:

• Daniel Castro, Senior Analyst, Information Technology and Innovation Foundation
• Allan Adler, Vice President of Government Affairs, Association of American Publishers,
• Peter Brantley, Director of Access, Internet Archive
• Dan Clancy, Engineering Director, Google Book Search
• Alan Inouye, Director, Office for Information Policy, American Library Association

The American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, and others have filed a copyright infringement suit against Google in the U.S. District Court for the Southern District of New York.

Here's an excerpt from the press release:

The suit, which was filed by Mishcon de Reya New York LLP, relates to Google’s illegal scanning of millions of books and other publications containing copyrighted images and displaying them to the public without regard to the rights of the visual creators. ASMP and the other trade associations, representing thousands of members, decided to file the class action after the Court denied their request to join the currently pending $125 million class action that had previously been filed primarily on behalf of text authors in connection with the Google Library Project. The new class action goes beyond Google’s Library Project, and includes Google’s other systematic and pervasive infringements of the rights of photographers, illustrators and other visual artists.

This action by ASMP and its sister organizations was taken in order to protect the interests of owners of copyrights in visual works from the massive and organized copying and public display of their images without regard to their contributions and rights to fair compensation. According to ASMP Executive Director Eugene Mopsik, "Through this suit, we are fulfilling the missions of our organizations and standing up for the rights of photographers and other visual artists who have been excluded from the process up to now. We strongly believe that our members and those of other organizations, whose livelihoods are significantly and negatively impacted, deserve to have representation in this landmark issue." ASMP General Counsel Victor Perlman said, "We are seeking justice and fair compensation for visual artists whose work appears in the twelve million books and other publications Google has illegally scanned to date. In doing so, we are giving voice to thousands of disenfranchised creators of visual artworks whose rights we hope to enforce through this class action."

Read more about it at "Artists and Photographers Sue over Google Book Search" and "Google a 'Brazen' Content Thief, Lawsuit Claims."

Rudolph J. R. Peritz and Marc Miller have self archived "An Introduction to Competition Concerns in the Google Books Settlement" in SSRN.

Here's an excerpt:

Google started its Google Books project in 2004 with the intent to create a digital library of the world’s books. There has not been such a grand plan since students of Aristotle began to gather the world’s knowledge in the Library of Alexandria some 24 centuries ago. The world’s knowledge has changed. And so has its political economy. Twenty-first century public policy questions have been interjected to delay and reshape Google’s project, questions that did not concern the royal sponsors of the ancient Library. This review takes up questions of competition policy raised in the United States, the corporate site for Google’s virtual Library of Alexandria.

After presenting the factual background to the Google Books project and the procedural history of the current class-action lawsuit, we examine two clusters of competition issues concerning the Google Books project: First, whether a class action settlement in litigation between private parties is an appropriate vehicle for making public policy. Second, whether Google’s actions are on balance anticompetitive under U.S. antitrust laws. Antitrust concerns will be given the lion’s share of attention.

The American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries have released "GBS March Madness: Paths Forward for the Google Books Settlement."

Here's an excerpt from the press release:

This diagram, developed by Jonathan Band, explores the many possible routes and outcomes of the Google Books Settlement, including avenues into the litigation and appeals process.

Now that the fairness hearing on the Google Books Settlement has occurred, it is up to Judge Chin to decide whether the amended settlement agreement (ASA), submitted to the Court by Google, the Authors Guild, and the Association of American Publishers, is "fair, reasonable, and adequate." As the diagram shows, however, Judge Chin’s decision is only the next step in a very complex legal proceeding that could take a dozen more turns before reaching resolution. Despite the complexity of the diagram, it does not reflect every possible twist in the case, nor does it address the substantive reasons why a certain outcome may occur or the impact of Congressional intervention through legislation. As Band states, "the precise way forward is more difficult to predict than the NCAA tournament. And although the next step in the GBS saga may occur this March, many more NCAA tournaments will come and go before the buzzer sounds on this dispute."

James Grimmelmann has self-archived "The Amended Google Books Settlement is Still Exclusive" in SSRN.

Here's an excerpt:

This brief essay argues that the proposed settlement in the Google Books case, although formally non-exclusive, would have the practical effect of giving Google an exclusive license to a large number of books. The settlement itself does not create mechanisms for Google's competitors to obtain licenses to orphan books and competitors are unlikely to be able to obtain similar settlements of their own. Recent amendments to the settlement do not change this conclusion.

A transcript of the 2/18/10 Google Book Search Settlement hearing is now available.

Read more about the hearing at "GBS: Fairness Hearing Report"; "GBS: Fairness Hearing Report Part II"; "Google Settlement Fairness Hearing, Part Two: DOJ Expresses Opposition; Parties Mount Vigorous Defense"; and "Objectors Outnumber Supporters in First Half of Google Settlement Fairness Hearing."

Also see: "Google Book Search Settlement: Updating the Numbers, Part 1."

Pamela Samuelson has self-archived "Academic Author Objections to the Google Book Search Settlement" in SSRN.

Here's an excerpt:

This Article explains the genesis of the Google Book Search (GBS) project and the copyright infringement lawsuit challenging it that the litigants now wish to settle with a comprehensive restructuring of the market for digital books. At first blush, the settlement seems to be a win-win-win, as it will make millions of books more available to the public, result in new streams of revenues for authors and publishers, and give Google a chance to recoup its investment in scanning millions of books. Notwithstanding these benefits, a closer examination of the fine details of the proposed GBS settlement should give academic authors some pause. The interests of academic authors were not adequately represented during the negotiations that yielded the proposed settlement. Especially troublesome are provisions in the proposed settlement are the lack of meaningful constraints on the pricing of institutional subscriptions and the plan for disposing of revenues derived from the commercialization of "orphan" and other unclaimed books. The Article also raises concerns about whether the parties' professed aspirations for GBS to be a universal digital library are being undermined by their own withdrawals of books from the regime the settlement would establish. Finally, the Article suggests changes that should be made to the proposed settlement to make it fair, reasonable, and adequate to the academic authors whose works make up a substantial proportion of the GBS corpus. Even with these modifications, however, there are serious questions about whether the class defined in the PASA can be certified consistent with Rule 23, whether the settlement is otherwise compliant with Rule 23, whether the settlement is consistent with the antitrust laws, and whether approval of this settlement is an appropriate exercise of judicial power.

The U.S. Department of Justice has filed a statement of interest about the amended Google Book Search settlement with the U.S. District Court for the Southern District of New York.

Here's an excerpt from the press release:

The Department of Justice today advised the U.S. District Court for the Southern District of New York that despite the substantial progress reflected in the proposed amended settlement agreement in The Authors Guild Inc. et al. v. Google Inc., class certification, copyright and antitrust issues remain. The department also said that the United States remains committed to working with the parties on issues concerning the scope and content of the settlement.

In its statement of interest filed with the court today, the department stated, "Although the United States believes the parties have approached this effort in good faith and the amended settlement agreement is more circumscribed in its sweep than the original proposed settlement, the amended settlement agreement suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation."

On Sept. 18, 2009, the department submitted views to the court on the original proposed settlement agreement. At that time, the department proposed that the parties consider changes to the agreement that might help address the United States' concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and providing a mechanism by which Google's competitors can gain comparable access.

In today's filing, the department recognized that the parties made substantial progress on a number of these issues. For example, the proposed amended settlement agreement eliminates certain open-ended provisions that would have allowed Google to engage in certain unspecified future uses, appoints a fiduciary to protect rightsholders of unclaimed works, reduces the number of foreign works in the settlement class, and eliminates the most-favored nation provision that would have guaranteed Google optimal license terms into the future. However, the changes do not fully resolve the United States' concerns. The department also said that the amended settlement agreement still confers significant and possibly anticompetitive advantages on Google as a single entity, thereby enabling the company to be the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats.

The department continues to believe that a properly structured settlement agreement in this case offers the potential for important societal benefits. The department stated that it is committed to continuing to work with the parties and other stakeholders to help develop solutions through which copyright holders could allow for digital use of their works by Google and others, whether through legislative or market-based activities.

Read more about it at "Department of Justice Criticizes Amended Google Settlement over Copyright, Antitrust Issues"; "DOJ: Google Book Settlement Better, but Not Yet Good"; an "DOJ on Amended Google Books Settlement: Better, but Still Opposed."

Stanford University has signed the amended Google Book Search settlement agreement.

Here's an excerpt from the announcement:

Stanford’s expanded agreement, which establishes it as a Fully Participating Library under the terms of the amended settlement agreement, is a milestone in Stanford’s commitment to the program and to the provision of public access to millions of its books. . . .

University Librarian Michael A. Keller said, "We are highly supportive of the amended settlement, which offers an enormous public good, making the full text of millions of books available to the American public."

Keller added that another effect of the settlement is to respect the rights and prerogatives of authors and publishers at the same time as it increases public access. "The settlement creates a working partnership among authors, publishers, libraries and Google that will usher in a revolutionary change in access to books on library shelves, even beyond the incredibly powerful vision that Google Books first developed. It’s no longer just about finding books of potential interest; it makes them vastly more readily readable. The agreement also compensates authors and publishers for the use of works that, by virtue of being out of print, would not have earned the rightsholders any income—a novel and, for most authors, a most welcome innovation."

Over the past five years, Google has scanned over 1.7 million books owned by Stanford, and plans to scan millions more. More than two dozen other major libraries around the world are now involved in this project.

Jonathan Band has published "The Long and Winding Road to the Google Books Settlement" in The John Marshall Review of Intellectual Property Law.

Here's an excerpt:

In its Library Project, Google is scanning millions of books from the world's leading research libraries to include in a searchable database. This scanning has occurred without the copyright owners' authorization, leading to the class action copyright infringement lawsuit, Authors Guild v. Google, Inc. The central legal issue in the litigation is whether copyright law's fair use doctrine provides Google with a defense against the authors' claims. Ultimately, the parties reached a settlement. The proposed Settlement Agreement is an extremely complex document which, if approved by the court, will govern the future of the Google Library Project. It creates a mechanism that allows Google to scan and display the full text of millions of books. In exchange, Google will pay fees to each book's rightsholder. The proposed settlement has precipitated a heated public debate over competition concerns, privacy, intellectual freedom, and the rights of authors and publishers. This article traces the history of the Google Library Project and discusses in-depth the original Google Library Project, the litigation, the original Settlement Agreement, debate concerning the approval of the Settlement Agreement, and the Amended Settlement Agreement.

Pamela Samuelson has self-archived "Google Book Search and the Future of Books in Cyberspace" in SSRN.

Here's an excerpt:

The Google Book Search (GBS) initiative once promised to test the bounds of fair use, as the company started scanning millions of in-copyright books from the collections of major research libraries. The initial goal of this scanning was to make indexes of the books’ contents and to provide short snippets of book contents in response to pertinent search queries. The Authors Guild and five trade publishers sued Google in the fall of 2005 charging that this scanning activity was copyright infringement. Google defended by claiming fair use. Rather than litigating this important issue, however, the parties devised a radical plan to restructure the market for digital books, which was announced on October 28, 2008, by means of a class action settlement of the lawsuits. Approval of this settlement would give Google—and Google alone—a license to commercialize all out-of-print books and to make up to 20 per cent of their contents available in response to search queries (unless rights holders expressly forbade this).

This article discusses the glowingly optimistic predictions about the future of books in cyberspace promulgated by proponents of the GBS settlement and contrasts them with six categories of serious reservations that have emerged about the settlement. These more pessimistic views of GBS are reflected in the hundreds objections and numerous amicus curiae briefs filed with the court responsible for determining whether to approve the settlement. GBS poses risks for publishers, academic authors and libraries, professional writers, and readers as well as for competition and innovation in several markets and for the cultural ecology of knowledge. Serious concerns have also been expressed about the GBS settlement as an abuse of the class action process because it usurps legislative prerogatives. The article considers what might happen to the future of books in cyberspace if the GBS deal is not approved and recommends that regardless of whether the GBS settlement is approved, a consortium of research libraries ought to develop a digital database of books from their collections that would enhance access to books without posing the many risks to the public interest that the GBS deal has created

The Public-Interest Book Search Initiative at the New York Law School has released Objections to the Google Books Settlement and Responses in the Amended Settlement: A Report.

Here's an excerpt:

This report collects information about the objections raised to the original proposed settlement in the Authors Guild v. Google litigation. We identified 76 distinct issues, which we grouped into 11 categories. This report briefly summarizes each issue, provides an illustrative quotation from a filing with the court, and indicates any related changes in the amended settlement. . . .

This report is descriptive, not evaluative. Inclusion of an issue means only that at least one party made the full argument in a filing to the court. It does not represent any judgment about whether the objection accurately characterizes the settlement or the underlying facts. Nor does it represent any judgment about the legal merits of the objection. Our classification and ordering of the objections are meant as an aid to the reader, not substantive commentary. Our choice of representative quotations is not meant as an endorsement of any particular filer’s arguments. Similarly, inclusion of changes from the amended settlement does not represent a judgment about whether the changes address the relevant objection.

The American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries have released A Guide for the Perplexed Part III: The Amended Settlement Agreement.

Here's an excerpt from the press release:

The guide describes the major changes in the amended settlement agreement (ASA), submitted to the Court by Google, the Authors Guild, and the Association of American Publishers on November 13, 2009, with emphasis on those changes relevant to libraries.

While many of the amendments will have little direct impact on libraries, the ASA significantly reduces the scope of the settlement because it excludes most books published outside of the United States. In addition, the ASA provides the Book Rights Registry the authority to increase the number of free public access terminals in public libraries that had initially been set at one per library building, among other changes.

Looking ahead, the Court has accepted the parties’ recommended schedule and set January 28, 2010, as the deadline for class members to opt out of the ASA or to file objections, and February 4, 2010, as the deadline for the Department of Justice to file its comments. The Court will hold the fairness hearing on February 18, 2010.

The UCLA Library has made The Google Books Settlement: Issues and Options, a digital video featuring copyright expert Jonathan Band, available on YouTube.