[A2k] Judge Chin rejects Google Book Settlement

Marko Loparic marko.loparic at gmail.com
Wed Mar 23 13:46:22 PDT 2011


I wonder who is defending Google in this episode.

Someone could help me? I don't understand much about this issue or
about copyright in general. But I am convinced the indifference
towards the public interest is not a monopoly of governments and
companies, but may manifest itself in the activities of independent
actors and ngos as well. In particular concerning Google, the obvious
positive actions of this company are often downplayed or ignored in
the name of "it is good today, but could be harmful tomorrow", which
for me sounds more like "companies defending public interest don't
exist", or "should not exist".

In the last 30 minutes, I have tried to understand the arguments of
the opponents. Following the links (nyt article -> Pam Samulson
wikipedia entry -> blog entry) I get to an article which I expect to
represent well the position of the opponents.


So what are the arguments finally? Here is what I could pick up.

1. "The proposed settlement agreement would give Google a monopoly on
the largest digital library of books in the world."

Oops, this seems to be a good point. I didn't know that the settlement
established a monopoly. But does the settlement really sets an
exclusive license to Google? The sentence is ambiguous, but if I
understand correctly the answer comes later in the article itself.

"Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the
Open Content Alliance could get a comparably broad license as the
settlement would give Google would be by starting its own project to
scan books."

So, if it seems that the settlement does not establish any monopoly.
Anybody could make the same thing as Google. Of course it is unlikely
that somebody else would do this. Is this a surprise? With or without
Google it is highly unlikely that someone would do that for the simple
reason that it is an enormous investment with an unclear revenue. Just
like many other things that Google did, as buying Youtube, saving the
Usenet archive, digitalising museums, etc.

2. "Chances are also slim that the plaintiffs in such a lawsuit would
be willing or able to settle on equivalent or even similar terms."

I really don't see how the argument that the settlement would
discourage other players can be defended. What is said here is simply
that company B should have trouble to enter a market because the
product is already offered by company A. And that company B would have
the same costs to produce the product as company A.

3. "However, Google’s “dead souls” scheme may pay off handsomely, as
the settlement would, in effect, give Google the exclusive right to
commercially exploit millions of orphan books."

I try my best to save the argument from this analogy. But the only
thing I can understand from it is "bringing orphaned works to public
is like hiring dead serfs" (we see here how the public interest is
ignored, or how low the value of orphaned works is estimated) and
"Google may make lots of money" (the idea that the more money Google
can make, the worse it must be for us).

4. "As galling as it is to realize that the BRR and its registered
authors and publishers will derive income from millions of books they
didn’t write or publish, it is even more galling that copyright
maximalists will almost certain dominate the BRR governing board."

OK, it is a point. My question is: Would there be a better way to
Google to achieve its goal of bringing orphaned works to public? I
don't see how. And what about Google's constant struggle as a
copyright minimalist actor? Doesn't it count? Who else pays millions
of dollars to lawyers defend our rights to freely listen to music
concerts we upload?

5. "If asked, the authors of orphan books in major research libraries
might well prefer for their books to be available under Creative
Commons licenses or put in the public domain so that fellow
researchers could have greater access to them. "

"If asked", but we know that they would never be asked. How? by whom?
In the last argument these authors were "dead souls". Now they
resurrect to potentially "make their books available under Creative
Commons licenses". Who believes this has a chance of happening? Why
would this BRR agree? And if it can be done without the settlement,
why couldn't it be done if it is approved?

6. "In reviewing the settlement, the judge who is supposed to consider
whether the settlement is “fair” to the classes on whose behalf the
lawsuits were brought. He may assume the settlement is fair because
money will flow to authors and publishers. But importantly absent from
the courtroom will be the orphan book authors who might have qualms
about the Authors Guild and AAP as their representatives."

The notable absent in this reasoning is the public interest.
Apparently it does not count much. My question again is how could
Google bring the so-called "dead souls" to court? Again the argument
is that "the settlement is bad because something else would be
better", ignoring how unlike this something else is.

7 "In the short run, the Google Book Search settlement will
unquestionably bring about greater access to books collected by major
research libraries over the years. But it is very worrisome that this
agreement, which was negotiated in secret by Google and a few lawyers
working for the Authors Guild and AAP (who will, by the way, get up to
$45.5 million in fees for their work on the settlement—more than all
of the authors combined!), will create two complementary monopolies
with exclusive rights over a research corpus of this magnitude.
Monopolies are prone to engage in many abuses."

The same "it will be a monopoly" claim made here as above, with no new argument.

8. "The Book Search agreement is not really a settlement of a dispute
over whether scanning books to index them is fair use. It is a major
restructuring of the book industry’s future without meaningful
government oversight. The market for digitized orphan books could be
competitive, but will not be if this settlement is approved as is."

Again the claim that "the settlement is bad because something else
would be better", ignoring how unlike this something else is. Who
honestly believes that we will see a lot of competition for
digitalising orphaned works?


On 22 March 2011 21:47, Pilch, Janice T <pilch at illinois.edu> wrote:
> It was just announced that the Google Book Settlement has been rejected by Judge Chin.
> The New York Times posted a story 5 minutes ago: http://www.nytimes.com/2011/03/23/technology/23google.html?_r=1&hp
> Here is the filed ruling:
> http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115
> Janice T. Pilch
> Associate Professor of Library Administration,
> Humanities Librarian
> University of Illinois at Urbana-Champaign
> University Library
> 1408 West Gregory Drive
> Urbana, IL 61801
> Tel. (217) 244-9399
> Email: pilch at illinois.edu
> ________________________________________
> _______________________________________________
> A2k mailing list
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