[A2k] Judge Chin rejects Google Book Settlement

Claude Almansi claude.almansi at gmail.com
Wed Mar 23 18:33:03 PDT 2011


Thanks for the notice and the links, Janice.
Marko, your questions as non lawyer mirror the quandary in which the 2
versions of the Settlement put non lawyer authors.
I am one, and I objected to the 1st version of the Settlement because
I was hugely pissed off that a bunch of US cowboys from the US
Authors' Guild and Association of American Publishers had the gall to
mess up things when Google Book Search, as it was originally, was such
a great project.
I was bloody delighted that Google had scanned "my" out-of-print
books. But they were not entirely mine: one was an anthology I had
co-edited with my husband (who died in 2001) in the 80's, and we'd had
to request permissions to include, for *that* publication, excerpts of
works that were copyrighted back then. Moreover, with the absurd "post
1996 WIPO treaties" extension of copyright duration to 70 years after
the death of the author, some texts we used that were in the public
domain back then might well be under copyright again. But with the
original Google Book Search scheme, dealing with these issues was
Google's headache, not mine.
Whereas with the original (and amended) Settlements, as the surviving
named rights holder, I would have to take decisions on behalf of the
authors / rights holders of the in-copyright texts used in the
anthology, and I haven't the foggiest idea what they might want.

But Judge Chin's March 22, 2011 ruling, with the proposal to go back
to a traditional "opt-in" solution, is also such a step back.

What is needed is an international treaty that makes it legal to scan
out-of-print works, and display  the digital versions so long as they
are not otherwise republished.  Even better: a whole new copyright
treaty adapted to the digital age, as Lawrence Lessig advocated at
WIPO last November (1).

That would take time, though. So some way should be found to stop the
copyright cowboys - be they US or from other countries - from messing
up things in the name of authors.



(1) Subtitled version, with transcript, of Lessig's Nov. 4, 2011
address at WIPO:

2011/3/23 Marko Loparic <marko.loparic at gmail.com>:
> Hello,
> 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.
> http://radar.oreilly.com/2009/04/legally-speaking-the-dead-soul.html
> 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?
> Cheers,
> Marko
> 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

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