UPDATED (March 27, 2011, 10:30pm EDST)
Now it seems it’ll be up to Congress to address the orphaned works problem. But given Congress’ maniacal death-grip on copyright, it seems unlikely that common sense will have any effect and our culture will continue to be locked up for seventy years beyond the grave in order to protect the 0.0001 percent of publishers’ catalogs that continue to sell after fourteen years. (All numbers entirely made up for your reading pleasure.)
While Google’s approach has been flawed, it’s not too late to rescue its worthy vision of preserving these works. Instead of negotiating a new settlement, the company should work through Congress to reform copyright laws and establish a system to balance the rights of authors with the desire to create greater access to their work. In the meantime, Google should embrace its philosophy of an open Web by making the contents of the books accessible to any commercial search engine.
[Perhaps the most likely outcome is] having Congress deal with the issue of who owns the digital rights to books still under copyright protection, including “orphan books,” for which the copyright holders might be unclear. Sources close to the settlement parties said this week that Google would be amenable to congressional action, an avenue also highlighted by Chin.
Chin’s ruling may well provoke Google to pressure Congress to solve the problem so it can proceed with its own project.
But there it will face counter-lobbying by publishers, film studios and record labels. “Those content industries don’t like any proposal seen as weakening copyright,” says Peter Jaszi, an expert in copyright law at American University.
“There were many things in the settlement that were innovative and useful, and I’d be sorry to see lost,” remarks Lewis Hyde, the author of “Common as Air,” a recent book about copyright in the digital era.
From the Court Opinion:
OPINION: In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States and other objectors have noted, may of the concerns raised in the objections would be ameliorated if the ASA were converted from an “opt-out” settlement to an “opt-in” settlement. I urge the parties to consider revising the ASA accordingly. The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement. The motion for an award of attorneys’ fees and costs is denied, without prejudice. The Court will hold a status conference on 4/25/2011, at 4:30 p.m. in Courtroom 11A of the Daniel Patrick Moynihan Courthouse. (Status Conference set for 4/25/2011 at 04:30 PM in Courtroom 11A, 500 Pearl Street, New York, NY 10007 before Judge Denny Chin.) (Signed by Judge Denny Chin on 3/22/2011) (tro)
Professor James Grimmelmann (New York Law School) has been studying, discussing, and writing about the Google Book Settlement since the beginning and he has posted some analysis via his Twitter feed.
Comments and Responses
“The gift that Google brought was raising awareness that access to literature has tremendous benefits,” said Peter Brantley of the Open Book Alliance, a group of companies and organizations that has opposed Google’s plan. “And that’s something that, as a society, we can work to achieve.”
“Regardless of the outcome of our discussions with publishers and Google, opening up far greater access to out-of-print books through new technologies that create new markets is an idea whose time has come,” said Mr.Turow. “Readers want access to these unavailable works, and authors need every market they can get. There has to be a way to make this happen. It’s a top priority for the Authors Guild.”
“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,” Hilary Ware, Google’s managing counsel, said in an e-mailed statement. “Regardless of the outcome, we’ll continue to work to make more of the world’s books discoverable online through Google Books and Google eBooks.”
“For more than a decade, publishers have been making substantial investments to enable and enhance online access to content in accordance with copyright laws and we will continue to do so regardless of the outcome of the litigation.”
“He shoots down the settlement on three important grounds, which are the same three grounds that Google is under siege from around the world,” said Gary Reback, co-founder of the Open Book Alliance,
“Library Copyright Alliance Releases Statement on Google Books Settlement Rejection” (PDF)
ARL, ALA, and ACRL are members of the alliance.
Judge Denny Chin of the United States Court of Appeals for the Second Circuit issued a long-awaited ruling Tuesday afternoon, rejecting a proposed settlement between Google and publishers and authors. It is the CIC’s understanding that Google will continue scanning CIC library materials (six member libraries, in addition to Michigan and Wisconsin, are currently sending content) under the terms of the CIC’s 2007 Agreement.
HathiTrust’s ability to fulfill our mission is and has been independent of approval of the Google Books Amended Settlement Agreement. The benefits we envision—improved discovery and full text search of our vast collections, services for users who have print disabilities, computational research, and broad public availability of works that are out of copyright or otherwise released by their copyright owners—are being realized and will continue to expand.
Given this ruling, the HathiTrust partners will continue providing comprehensive full-text search of the repository and uses of in-copyright materials that fall under sections 107 and 108 of U.S. copyright law: access for users who have print disabilities, and lawful uses of digital copies of materials that are damaged, deteriorating, lost or stolen, and not available at a reasonable market price. In addition, we will continue to pursue our extensive review of works published in the United States from 1923 to 1963, providing access to works that did not comply with copyright formalities of the time, and our work with authors and publishers who wish to open access to their works in HathiTrust. We will continue to strive to provide as much access as legally possible to materials in the repository, for discovery, reading, and computational research. We hope that the rejection of the Settlement will lead immediately to meaningful progress towards orphan works legislation.
It’s too early to speculate with some certainty what will happen next. In the meantime the American Library Association, along with Association of College and Research Libraries and the Association of Research Libraries, are working on a brief analysis of the Judge’s decision that will be made available soon.
In a February 2010 hearing before the Court, EPIC President Marc Rotenberg explained that this settlement would “turn upside down” well established safeguards for reader privacy, including state privacy laws, library confidentiality obligations, and the development of techniques that minimize privacy intrusions. Judge Chin determined that the proposed opt-out settlement was “not fair, adequate and reasonable.”
…we are disappointed that the court has rejected the settlement. We will analyze the decision carefully and then determine our future course.
From Eric Hellman, Go To Hellman: “Simon and Schuster is Looking at Limited Lending Library eBook Models”
Also from the Healy/Reidy interview in NYC.
*** The interview took place at a Publishing Point event in NYC.
“We are disappointed by the court’s decision,” said Michael Keller, the university’s librarian. “The attraction of the project for Stanford lay in our need to preserve for long-term use the contents of books – many of which are deteriorating on the shelf – and the desire to index and otherwise analyze the contents of books in order to expose more information, generate more knowledge and foster more expression. Such knowledge and information in turn not only drive teaching, learning and research, but also drive our economy, our political and social development, and our lives in myriad ways.”
Press and Blogosphere
Google is expected to finish scanning the public domain material from the University’s library collection sometime this year, Deputy University Librarian Marvin Bielawski said, but the library had planned to start sending books under copyright once the settlement was approved.
“We’re disappointed with the judge’s decision,” Bielawski explained. “A great deal of content that has been digitized and is up on Google will now not be unlocked.”
“What we’re hoping is that Google and The Authors Guild and The Association of American Publishers will go back to the table and see if they can craft a revised settlement that the judge will approve,” he added.
Harvard Law Professor John G. Palfrey ’94, a co-director of the Berkman Center, noted that the project is “incredibly complex,” requiring page-by-page scanning of every volume. “At this point, I couldn’t even give you an accurate guesstimate of when this project is going to be completed,” Palfrey said.
“I was disappointed the Google settlement didn’t come to fruition,” Lougee said. “There was a lot of public interest served. And, while I appreciate concerns about Google and its potential hold on the book market, the agreement certainly left the door open for others to do what Google has done.”
Readers also can see small snippets of digitized, copyrighted books from the U of M and other big libraries by doing a keyword search of the text through Google.
“That’s still valuable,” Lougee said. “It’s useful just to know if the information you want is in a certain book or if it can’t be found anywhere.”
It is important to note that the position of digitization and ebooks today are vastly different than they were in 2005 when the authors and publishers first sued Google over its library digitization project. It is possible that if the question of Google’s digitizing were to be put forth for the first time today, the actions of the parties and the results would be vastly different. This is clearly a case where technology has moved forward at a rapid pace while the courts were contemplating an agreement that was standing still.
Hat Tip and Thanks: @Blank_TextField
“There’s nothing dead about the case or the settlement,” Michael J. Boni, lead attorney for the Authors Guild, told Wired.com in an interview. “We’re just considering what our next steps are. It’s gratifying that the publishers have said they’re still interested in working something out. That’s encouraging.”
“Our position is that we don’t want to grant monopoly control of orphan works to just one entity, Google,” Public Knowledge staff attorney John Bergmeyer told Wired.com. “At the same time, we recognize that some access to orphan works would be a good thing.”
Judge Chin is right that the “orphan work” problem warrants Congress’ attention. But Congress has tried and failed repeatedly to pass orphan works legislation, and for now the complaints of copyright owners—photographers in particular have fears that universal access to works could hurt them—have stalled progress on this front.
Pamela Samuelson, a professor of law at the U. of California at Berkeley, suggests what might be the next steps for the parties involved in the Google Books project.
An Alternative Remedy
One strategy, extended collective licensing, or ECL, has been generating a lot of interest among librarians and copyright reformers, says Peter Brantley, director of the Internet Archive’s BookServer project. He’s also a co-founder of the Open Book Alliance, whose members include Amazon.com and Microsoft. (The alliance weighed in against the Google settlement, filing a brief opposing it in 2009.)
“The Google Books settlement should teach the company humility. It won’t.” (by Siva Vaidhyanathan, Slate)
Siva Vaidhyanathan is a professor of media studies and law at the University of Virginia and the author of The Googlization of Everything and Why We Should Worry.
Novelist Nick Harkaway, author of The Gone-Away World, said he was “startled and delighted” by the US judgment. “It’s very, very strong,” he said. “Google will just have to spend money, find people, and ask them if they will allow use of their work.”
Anthony Goff, president of the Association of Authors Agents, said: “My first thought is, ‘Hooray!’ Google always said that an opt-in settlement was impossible. It’ll be interesting to see now whether they were bluffing or not.”
But by settling with the Authors Guild, Google got far more rights than it ever could have exercised under fair use, and what’s more, it set no precedent that its competition might take advantage of. Indeed, the acrimony following the settlement likely poisoned the water against any comparable future settlement from a competitor, and the terms of the settlement were extremely favorable to Google and its business model. Effectively, the settlement would have set in stone a virtual monopoly on book indexing for Google.
From Darnton’s NY Times Op-Ed:
Judge Chin invited Google and the litigants to rewrite the settlement yet again, perhaps by changing its opt-out to opt-in provisions. But Google might well refuse to change its basic commercial strategy. That’s why what we really need is a noncommercial option: a digital public library.
To dismiss this as quixotic would be to ignore digital projects that have proven their value and practicability throughout the last 20 years. All major research libraries have digitized parts of their collections. Large-scale enterprises like the Knowledge Commons and the Internet Archive have themselves digitized several million books.
A number of countries are also determined to out-Google Google by scanning the entire contents of their national libraries. France is spending 750 million euros to digitize its cultural treasures; the National Library of the Netherlands is trying to digitize every Dutch book and periodical published since 1470; Australia, Finland and Norway are undertaking their own efforts.
Robert Darnton often writes about digital libraries, Google, and related topics. Many of his columns are available online from the NY Review of Books. He recently sat down with Randall Stephens for this interview (video).
Digital Public Library of America Workshop Materials
See Also: National Digital Library Materials from LibraryCity.org
“Federal judge rejects Google book monopoly” (by Timothy Lee, Ars Technica)
Hat Tip and Thanks: Cory D.
Even as Google continues scanning materials (some 15 million books, as of December 2010), the possibility of a free Google Book Search Public Access Service terminal in every public and academic library appears to go on hold, at least until a new settlement agreement is proposed. However, many librarians have cited the public terminal provision as a potential logistical nightmare; the Urban Libraries Council said “[t]he settlement’s commitment to one free terminal per public library building is admirable but unworkable.”
Clearly, the plaintiffs and their attorneys have run up a huge legal bill for this lawsuit. They’ve been expecting an infusion of $34.5 million to set up the registry and another $30 million for attorney’s fees. It’s not clear how much has been spent on the registry so far, but it has registered claims for about 1.1 million books. This is potentially a very valuable resource, which, if put into play could greatly increase the possibilities for transactions of book rights.
Finally, in what may be his broadest conclusion, Chin agreed with the assertion of many library advocates that nonpublic stewardship of orphan works would not be in the public’s best interest: “The question of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.”
Scott Gant, a GBS objector and a class action attorney at Washington D.C.-based firm Boies, Schiller, Flexner, doesn’t think an appeal is likely to succeed. Gant told PW that Chin appears to have written a “a solid,” relatively appeal-proof decision. “In terms of errors that could help Google,” he said, “I don’t see any.”
He adds that in the coming weeks, new lawsuits could also be filed against Google, either by individuals, or by groups, as Google, after spending the better part of a decade furiously scanning library books, now finds itself sitting on millions of potential infringements, absent a settlement. And finally, despite Chin’s praise for the lawyers in his rejection, Gant says he would not be surprised if there was a challenge mounted to current counsel.
While the profit potential of the book project is not clear, the effort is one of the pet projects of Larry Page, the Google co-founder who is set to become its chief executive next month. And the project has wide support inside the company, whose corporate mission is to organize all of the world’s information.
“It was very much consistent with Larry’s idealism that all of the world’s information should be made available freely,” said Ken Auletta, the author of “Googled: The End of the World as We Know It.”
“Opt-in doesn’t look all that different from ordinary licensing deals that publishers do all the time,” said James Grimmelmann, a professor at New York Law School who has studied the legal aspects of the agreement. “That’s why this has been such a big deal — the settlement could have meant orphan books being made available again. This is basically going back to status quo, and orphan books won’t be available.”
“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.
My understanding is that Google effectively cannot appeal this settlement rejection. It would need to present a new settlement proposal to the court. The judge has offered Google and the litigants that opportunity.