Google Books class action settlement rejected

There has been a decision in the Google Books case.  It’s a story we have blogged several times in the past. (See our past posts on the subject)

The IPKat write-up on the decision “Google takes it on the Chin” announced that:

“Federal Judge Denny Chin rejected the class action settlement which Google had painstakingly reached with a coalition of authors and publishers.”

As the NYTimes put it in their article: “Judge Rejects Google’s Deal to Digitize Books”:

“Google’s ambition to create the world’s largest digital library and bookstore has run into the reality of a 300-year-old legal concept: copyright.”

All commentary describes how the Judge has left the door open for a revised settlement so we can expect to hear more on this soon.  The issues being discussed after this latest development are still orphan works and copyright owners being required to “opt in” or “opt out”.  On the orphan works NYT said:

“Even though it is efficient for Google to make all the books available, the orphan works and unclaimed books problem should be addressed by Congress, not by the private settlement of a lawsuit,” said Pamela Samuelson, a copyright expert at the University of California, Berkeley who helped organize efforts to block the agreement.”

And on opt in/opt out IPKat said:

“One of the things which the IPKat found most unpalatable about the settlement was that it required authors to opt out if they didn’t like it, rather than getting them to opt in if they did. Judge Chin seems to think so too, so now it’s Google which is considering its options.  Hillary Ware (a managing counsel for Google) is reported as saying: “Like many others, we believe this agreement has the potential to open-up access to millions of books that are currently hard to find in the U.S. today”.  It does, but so too does the abolition of copyright.”

The court decision is here for those who prefer to hear it straight from the horse’s mouth.   http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115

Is the Google books saga nearing its end?! The DoJ, the forthcoming fairness hearing and the chances of settlement…

The much awaited Google Books settlement may be more difficult to achieve due to the recent (February 4, 2010) DoJ filing which reaffirms legal concerns.

It’s been six years now since the GBS (Google Book Search) project was launched in 2004. The fairness hearing before judge Chin scheduled for Feb 18^th could yield further surprises, following the most recent DoJ filing which is still critical of the project.

The original class action lawsuit was submitted by the Authors Guild in 2005 on the grounds of copyright infringement by Google, who was accused of having created and made available digital copies of copyrighted works without seeking rights holders’ permission. The outcome of the litigation is eagerly awaited by those (mostly library community and publishers) who are interested in pursuing mass digitization projects or who envisage Google as a viable commercial partner. The settlement is expected to clarify legal status of digitized (or to be digitized collections) and the potential application of the fair use doctrine; and to shed light on the controversial issue of the “orphan works” (a category of works whose authors cannot be located after a diligent search).

In October 2008, Google and the Author’s Guild entered a complex agreement which, among other things, created a scheme (Books Rights Registry) enabling Google to compensate the rights holders for displaying parts of their books covered by copyright. Under the same settlement, there was established a highly criticized opt-out mechanism (with deadline) ,to be used by the rightsholders who didn’t wish to be part to the settlement.

In September 2009, the DoJ first stepped in to comment on the agreement. Whilst labeling it as “one of the most far-reaching class actions statements of which the United States is aware ”, it criticized severely this “ambitious undertaking” and urged the court to reject the deal. According to the DoJ, the settlement violated the Federal rule of Civil procedure 23, the copyright law and the antitrust law. The main accusations to Google was its effort to “implement a forward-looking business arrangement”, by establishing Google’s dominant position in the digitization market, mainly thorough exploitation of the “orphan works”. Also, concerns were raised with regards to the class action mechanism (as disciplined by the Rule 23): the DoJ affirmed that the named class representatives did not represent adequately the absent class members (i.e. unknown rightholders of the orphan works). The DoJ suggested the following modifications to the agreement be made to address the existing concerns:

“ 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” (http://www.justice.gov/opa/pr/2010/February/10-opa-128.html).

To address the DoJ’s criticisms listed above, the parties came up with an amended settlement agreement, which was preliminarily approved by the Court on November 19, 2009. The amended settlement appears to have made significant progress so far as the “orphan works” and the anti-competitive behavior issues are concerned. It is proposed that a “fiduciary” be created to represent effectively the rightsholders who cannot be located, and that part of the revenue gained from the orphans work be split between further activities to locate unknown rightsholders and grants to the “literacy-based charities”. Also, the provisions that would give Google the status of the “most favored nation” are being eliminated.

So far so good!  But, yet again, the DoJ steps in at the last minute ahead of the fairness hearing and points its finger at what is considered to be most problematic issue.  Though recognizing the overall progress made by the parties in making the settlement healthier, the DoJ reaffirms that the settlement:

“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.”

The orphan works is, again, the most targeted issue and further limitations are suggested in order to address it, namely:  1) shortening the period of exploitation of the orphan works, and 2) increasing the waiting period between when an orphan work is entered in the database and when it is made publicly available. More generally, the legal scope of the agreement is restricted to the books printed in the US.  Please check this link for the extended version of the filing http://graphics8.nytimes.com/packages/pdf/technology/20100205_googlebooks.pdf.

A final question: why do we need GSB? Or rather who will benefit from it? In its earlier filing (September 2009, mentioned above), the DoJ recognized the settlement would “breath new life” into currently off-public  books, by widening up new research opportunities”,  by making accessible millions of books through institutional subscription and by clarifying (thanks to the creation of the Books Rights Register) the copyright status of out-of-print books.  Also, it is expected that printed-disabled categories would greatly benefit from the settlement, as indicated by the strong support demonstrated by US National Federal of the Blind.

To sum up, it seems that should the amended settlement come to fruition, it would bring huge social value in terms of widening access to knowledge. So, good luck for February 18^th!

Post written by Irina Curca of CAS-IP

France and Google; plans for alternative to Google Books emerging

According to CNET news, France is planning a possible rival to Google Books.  The plan includes a service initially funded by the government but hoped to be supported by online advertisements after that.

The article reports that Mitterrand (France’s culture minister) had said:

“”Google came to Europe as a conqueror, and many (publishers) have opened the door by signing agreements that I find unacceptable … based on excessive confidentiality, impossible exclusivity, and a casual, even one-sided approach to copyright.””

“France” and “Google” yield a lot of search engine returns of late.  In December a court ruled against Google in a “lengthy copyright infringement case filed by a French publisher” and more recently the so-called “Google Tax” that was recently proposed by Sarkozy.
On the same issue The Telegraph talked of “a new Gallic run-in with Google” and reported:

“Google France’s general director, Olivier Esper, called on the government to “favour co-operation” rather than “a logic of opposition between the worlds of internet and culture, for example, via the logic of taxation”.”

France’s plans have sprung from the recent government-commissioned survey which you can view here, using translation services from guess who….!

Google Books; the settlement and the saga

Apologies for being slow off the mark with this update!  There were some developments last month on the Google Books Settlement (see our previous posts HERE).

The “S” in the GBS acronym is in danger of being swapped from Settlement to Saga.  The Creative Commons news page described the Google Books Settlement as: “probably the copyright story of the year.”

Last month the Google Book Settlement site added the following update:

“On November 19, 2009, the Court granted preliminary approval of the Amended Settlement. The Court-approved Supplemental Notice will be distributed mid-December 2009”

But what does that mean??

IPKat posted an update last month.  Their post is a clarification of the situation, and also a reminder that this argument is far from simple.  I am finding that the more I read about this case, the less able I am to decide which side I am on!  All arguments are compelling.

Some of the areas that have seen revision are:
– the scope of the digitisation (only certain English speaking domains)
– the respresentation of authors rights, including the setting up of an “Unclaimed Works Fiduciary”
– further clarification of future uses by Google of scanned works

So, what’s next?  IPKat say:

“The revised settlement will again be subject to Court approval along with the opportunity of other parties submitting their briefs against or in support of the settlement.”

There is also talk of an EU alternative to Google Books which would involve the public sector.  Deutsche Welle report:

“EU ministers meeting in Brussels on Friday, November 27, said they wanted to create a bloc-wide project to digitize books, starting with the formation of a committee to work out a blueprint for the plan.”

What does seem clear is that all this wrangling is symptomatic of an industry trying to find a new way to deal with old rules in the digital age.  As the aforementioned Creative Commons news item said:

“Copyright has not kept up with the digital age — to the contrary, it has fought a rearguard action against the digital age, resulting in zero growth in the public domain, a vast number of inaccessible and often decaying orphan works, and a diminution of fair use.”

But as ARS Technica report:

“the settlement provides Google with access to copyrighted works unless their owners opt out, which is a significant change to copyright policy”

And these changes are rightly being carefully considered.  Lets see what the multitude of experts and interested parties working on this case can do to find a way forward.

To be continued….

For further information, comment and updates visit the following sites:
ARS Technica
Open Book Alliance, the Open Book Alliance have filed an amicus brief in response to the proposed GBS.
The Laboratorium
For the official documents, and to download the amended settlement in full visit the GBS site.

The hot potato of public access in the face of commercialisation

  “A Better Pencil” – Inside Higher Ed

An article about the changes both real and feared, that the electronic age might have on the way we communicate.  It is based around an interview with the writer of a book on the subject, Dennis Baron.

The interview touched on the subject of the Google Books project.
Baron said:

“First, I think it’s great to digitize as much nondigital text as possible… What I don’t like is that Google is poised to monopolize text. No one entity should have that kind of power over the word…  The sorts of operations that Google…represent are important to how we use computers, and they make a vital contribution to our economy. But while they have been important in shaping our literacy practices, they should not get to dictate them.”

This debate is fascinating.  A similar argument surrounds the commercialisation of publicly funded research in agriculture and there is a danger that we oversimplify the debate.  There is not a YES/NO answer to this issue, and the dynamics are intricate.  Free doesn’t constitute uptake and use,  but private raises another new set of considerations regarding control.  The argument for continued adequate public funding of research for sustainable agriculture to ensure food availability and empower farmers must be made in a way that is clear to every government.  Otherwise will we encourage a Google®-type organisation to hold rights for all improved seed in the future?

In fact Baron goes on to say:

“Not only does Google intend to profit from this kind of control (it answers to its stockholders, not to the public), it would have the power to manipulate the text under its control, deciding who can and cannot see it, what can be displayed, what can be erased.”

And that is an important point.  If rights are signed over completely then with them go all safeguards.  But we need to find a way to strike a balance between allowing commercialisation (where distribution of a product might not otherwise happen),  whilst not loosing sight of the ethos of public goods.  And finding that balance is not easy…. 

As guardians of public goods we have a huge responsibility to make those goods accessible.  We cannot be academically against initiatives like Google Books without actively addressing why it is there is a demand for this private service.  Public goods are doing no good at all if they sit hidden in a closed repository, or if they are transferred to 3rd parties without an obligation to disseminate results to those who need them.

More news on the Google Books debate

https://casipblog.wordpress.com/2009/08/28/the-google-books-lawsuit-and-general-issues-raised-by-google-books/
We recently blogged an item about the Google Books lawsuit.  The issue is receiving a lot of mainstream news coverage, see the Guardian and the BBC coverage on the topic:
http://www.guardian.co.uk/commentisfree/2009/sep/03/books-copyright-google
http://news.bbc.co.uk/2/hi/technology/8237271.stm
According to the Guardian article a hearing will be held this week at the European commission to “examine the impact of an agreement between American authors, publishers and Google to resuscitate millions of out-of-print, in-copyright books“.  I am keeping a look out for news on this and keep the blog updated.