Google Book Search Settlement 2.0: The Latest Scorecard; Chronicle of Higher Education, Wired Campus, 1/29/10

Jennifer Howard, Chronicle of Higher Education, Wired Campus; Google Book Search Settlement 2.0: The Latest Scorecard:

"We hope you enjoyed a holiday break from news of the Google Book Search settlement. A month into the new year, though, it's time to check back in with the case. January 28 was the deadline to file objections to the revised version. Denny Chin, the federal district judge charged with reviewing the settlement, is scheduled to hold a fairness hearing on Settlement 2.0 on February 18th.

Here are some of the latest developments and reactions to catch our eye. If you have come across other useful commentary or reactions, please share those in the comments.

--A group of some 80 professors, led by Pamela Samuelson, a professor of law and information at the University of California at Berkeley, has sent Judge Chin a letter explaining some academic authors' concerns over Settlement 2.0. The letter-signers write that "whatever the outcome of the fairness hearing, we believe strongly that the public good is served by the existence of digital repositories of books, such as the GBS corpus. We feel equally strongly that it would be better for Google not to have a monopoly on a digital database of these books." The letter reiterates many of the points made by Ms. Samuelson et al. in an earlier letter sent to the court. The Daily Californian also reported that Hal Varian, a professor of economics, business, and information at Berkeley, circulated a campus memorandum in response to Ms. Samuelson's most recent letter. "The agreement is not perfect, but I believe it to be a huge improvement over the status quo for authors, publishers, scholars, and the general public," Mr. Varian said in the memo. "In my view it deserves the enthusiastic support of all Berkeley faculty."

--The author Ursula K. Le Guin submitted a petition to the court with the signatures of 367 authors who dislike the proposed deal. "The free and open dissemination of information and of literature, as it exists in our public libraries, can and should exist in the electronic media. All authors hope for that," the petition states. "But we cannot have free and open dissemination of information and literature unless the use of written material continues to be controlled by those who write it or own legitimate right in it. We urge our government and our courts to allow no corporation to circumvent copyright law or dictate the terms of that control."

--On his blog The Laboratorium, Associate Professor James Grimmelmann of New York Law School—who has been bird-dogging the settlement since the beginning—has posted a nice list of "Essential Reading for Settlement Junkies." It features the most interesting filings that came in as the January 28 deadline approached. Highlights: Amazon's brief opposing the revised settlement is "a superbly executed piece of legal advocacy"; AT&T weighs in with a brief that confirms its "intense hatred of Google"; a group of Indian publishers objects too, saying that "while the scope of the proposed revised settlement has been narrowed by excluding India, it continues to provide Google with sweeping rights to exploit works of Indian authors/publishers under copyright protection without their express permission/consent."

--the British government declined to object, noting that "the UK Publishers Association strongly supports the revised settlement."

--The Open Book Alliance, whose memberhip includes GBS opponents Amazon.com, Microsoft, and the Internet Alliance, surprised no one by filing a friend-of-the-court brief opposing Settlement 2.0. "What one of Google's founders hailed last fall in the pages of The New York Times as 'A Library to Last Forever,' a modern-day equivalent of the Library at Alexandria, now reveals itself as more likely a sham and a fraud on the public," the alliance writes in one of the more rhetorically dramatic filings in the case.

--Lawrence Lessig, the Harvard law professor of Creative Commons fame, published a long essay in The New Republic about what he sees as the urgent need to redraft U.S. copyright law. Otherwise, he fears, "we are about to make a catastrophic cultural mistake." For those short on time—or driven crazy by TNR's eye-taxing fonts—TechCrunch boils down Mr. Lessig's long argument to its essence here. See also Mr. Grimmelmann's Laboratorium analysis of Mr. Lessig's essay and reactions/rebuttals in the comments there."

http://chronicle.com/blogPost/Google-Book-Search-Settlement/20939/

[Podcast & Transcript] Google's Goal: Digitize Every Book Ever Printed, PBS NewsHour

[Podcast & Transcript] PBS NewsHour; Google's Goal: Digitize Every Book Ever Printed:

"GARY REBACK: People no longer see any big difference between Google and Google's competitors. They're in it for money. And we need to depend on the competitive system to protect us.

SPENCER MICHELS: Does that go for Amazon and Microsoft as well?

GARY REBACK: It absolutely does. In this case, for example, Amazon was digitizing books long before Google was. Microsoft wanted to digitize books. Neither of them got the same deal that Google got -- got secretly, but, if they had, we would be -- all be better off because of it.

SPENCER MICHELS: Questions like those are being debated around the world. At Stanford, top librarians met recently to wrestle with how to adapt to the new online book resources and whether to cooperate with digitizations of their collections.

And bookstores like Berkeley's Pegasus, already in competition with discount booksellers, have to adapt as well. This store now sells digital books through its Web site. Besides the competition from online books, store owner Amy Thomas also worries about privacy of digital book buyers.

AMY THOMAS: They have a right to read without being -- having their reading records subpoenaed for whatever reason. They have a right to this privacy. And we will hope that Google will maintain, zealously maintain, defend those rights.

SPENCER MICHELS: Pam Samuelson is equally skeptical of Google's privacy policies. She puts her trust in libraries.

For its part, Google says it has been a huge advocate for user privacy. Antitrust concerns, copyright law, competition and privacy are all at issue in a flurry of lawsuits, friend-of-the-court briefs and interest from the Department of Justice. They will come to a head in February, when a federal judge holds a hearing on the Google case in New York."

http://www.pbs.org/newshour/bb/entertainment/july-dec09/google_12-30.html

Google Books Is Not a Library; Huffington Post, 10/13/09

Pamela Samuelson, Huffington Post; Google Books Is Not a Library:

"Sergey Brin published an op-ed in the New York Times last Friday likening the Google Book initiative to the famous ancient library of Alexandria. Brin suggested that Google Books would be "a library to last forever," unlike its Alexandrian counterpart that was ravaged by fire...

Unlike the Alexandria library or modern public libraries, the Google Book Search (GBS) initiative is a commercial venture that aims to monetize millions of out-of-print books, many of which are "orphans," that is, books whose rights holders cannot readily be found after a diligent search...

If Google Books was just a library, as Brin claims, library associations would not have submitted briefs expressing reservations about the GBS settlement to the federal judge who will be deciding whether to approve the deal. Libraries everywhere are terrified that Google will engage in price-gouging when setting prices for institutional subscriptions to GBS contents. Google is obliged to set prices in conjunction with a newly created Registry that will represent commercial publishers and authors. Prices for these subscriptions are to be set based on the number of books in the corpus, the services available, and prices of comparable products and services (of which there are none). Given that major research libraries today often pay in excess of $4 million a year for access to several thousand journals, they have good reason to be concerned that Google will eventually seek annual fees in excess of this for subscriptions to millions of GBS books. This is because Google will have a de facto monopoly on out-of-print books. The DOJ has raised concerns that price-setting terms of the GBS deal are anti-competitive.

Besides, Google can sell the GBS corpus to anyone without anyone's consent at any time once the settlement is approved...

Brin and Google's CEO Eric Schmidt have also been saying publicly that anyone can do what Google did--scanning millions of books to make a corpus of digitized books. They perceive Google to have just been bolder and more forward-looking than its rivals in this respect. But this claim is preposterous: By settling a lawsuit about whether scanning books to index them is copyright infringement or fair use, Google is putting at risk the next guy's fair use defense for doing the same...

Brin forgot to mention another significant difference between GBS and traditional libraries: their policies on patron privacy. The proposed settlement agreement contains numerous provisions that anticipate monitoring of uses of GBS content; so far, though, Google has been unwilling to make meaningful commitments to protect user privacy. Traditional libraries, by contrast, have been important guardians of patron privacy...

Anyone aspiring to create a modern equivalent of the Alexandrian library would not have designed it to transform research libraries into shopping malls, but that is just what Google will be doing if the GBS deal is approved as is."

http://www.huffingtonpost.com/pamela-samuelson/google-books-is-not-a-lib_b_317518.html

Samuelson Says Google Book Search Settlement Doesn’t Fully Reflect “Public Trust Responsibilities”; New York Times, 10/13/09

Norman Oder, New York Times; Samuelson Says Google Book Search Settlement Doesn’t Fully Reflect “Public Trust Responsibilities”:

"“You create a public good this substantial, guess what: public trust responsibilities come with it.” So said University of California law professor Pamela Samuelson Friday during a keynote lunch at the D is for Digitize conference, held at New York Law School.

And Google and the plaintiffs, the Authors Guild and the Association of American Publishers, have not responded sufficiently, she said, noting concerns about price-gouging for institutional subscriptions and user privacy. With Samuelson on the dais was Paul Courant, the University of Michigan library dean, a Ph.D economist and self-described “faux librarian,”whose library was the first to agree to have its works scanned by Google and supports the project.

“I think the public trust responsibilities are and ought to be widely shared,” Courant said. His bottom line: the benefits of the deal are worth the costs."

http://www.libraryjournal.com/article/CA6701727.html?desc=topstory

More Pushback Against the Google Book Search Settlement; Library Journal, 8/11/09

Norman Oder via Library Journal; More Pushback Against the Google Book Search Settlement:

"The Google Book Search Settlement, heading for a court hearing in October but also the subject of a Department of Justice antitrust inquiry, is beginning to generate more skepticism from arbiters of the public interest...

Questions of fairness

Samuelson questions whether the AAP and AG were fair representatives of the larger classes, and whether the Book Rights Registry can represent “the thousands of times larger and more diverse class of authors and publishers of books from all over the world.”

She noted, for example, that many academic authors “would much rather make their works available on an open access basis than to sign up with the Registry.”

Her subsequent column will explore why the Antitrust Division is investigating. In response, Law professor Mike Madison predicted, “The Justice Department will, in the end, facilitate a deal that gives other book scanning projects a release regarding orphan works that is comparable to what Google is getting via the settlement.”

Should authors opt out?

Meanwhile, the New York Times reports that agency William Morris Endeavor has advised authors it represents to opt out of the settlement because it would “bind copyright owners in any book published prior to January 9, 2009 to its terms.”

The Authors Guild responded that William Morris was off-base."

http://www.libraryjournal.com/article/CA6675916.html

More Seek Privacy from Google Book Search Settlement; Electronic Frontier Foundation, 8/14/09

Richard Esguerra via Electronic Frontier Foundation; More Seek Privacy from Google Book Search Settlement:

"Copyright scholar Pam Samuelson recently investigated the scope of the settlement in an editorial titled "The Audacity of the Google Book Search Settlement," noting that "...Google has negotiated a settlement agreement designed to give it a compulsory license to all books in copyright throughout the world forever."

The massive potential reach of Google's service makes the company's relative silence on privacy all the more problematic. A New York Times editorial praises the potential of more equitable, complete access to the world's knowledge, but cautions against the immense power that Google will then have:

"Google could collect data on what books people read and create a dossier of their political views and other information. Google should generally do a better job of showing how it will respect privacy, and [Google Book Search] is no exception."

Libraries are keenly familiar with the fact that intellectual freedom depends on the ability to read books privately -- there is a long-standing tradition of libraries upholding the privacy of patrons and defending against invasive requests for reading histories. The American Library Association recently participated in a panel discussion of the Google Book Search Settlement and expressed concerns about the chilling effects proliferated by a lack of privacy protections:

"[Dr. Inouye, Director of the ALA Office for Information Technology Policy,] went on to say that inadequate privacy protections could also produce a chilling effect on intellectual freedom, as users are less likely to explore particular lines of inquiry if they feel uncomfortable with uncertain information gathering techniques employed by Google or the Book Rights Registry. As a contrast to the paltry user privacy protections in the settlement, Inouye noted the extensive sections outlining cumbersome security provisions inserted to make sure rightholders content is secure.""

http://www.eff.org/deeplinks/2009/08/more-seek-privacy-google-book-search-settlement

DOJ Officially Opens Investigation Into Google Book Search; PC World, 7/2/09

Via PC World; DOJ Officially Opens Investigation Into Google Book Search:

"The U.S. Department of Justice confirmed on Thursday that it is investigating a settlement involving Google Book Search for possible antitrust violations, following months of speculation that the agency had its eye on the service.

In a filing to the judge overseeing the settlement of a lawsuit filed by The Authors Guild against Google, the DOJ informed the court that it has opened an investigation into the proposed settlement after reviewing public comments of concern. Those comments suggest that the agreement might violate the Sherman Act, a U.S. antitrust law, the DOJ said.

"The United States has reached no conclusions as to the merit of those concerns or more broadly what impact this settlement may have on competition. However, we have determined that the issues raised by the proposed settlement warrant further inquiry," the letter reads."

http://www.pcworld.com/businesscenter/article/167830/doj_officially_opens_investigation_into_google_book_search.html

What's next for Jammie Thomas-Rasset?; Ars Technica, 6/21/09

Nate Anderson via Ars Technica; What's next for Jammie Thomas-Rasset?:

"Jammie Thomas-Rasset has at least six options for moving forward after the massive $80,000 per song judgment handed down against her. We take a look at the possibility of paying the award, settling, declaring bankruptcy, reducing the award, appealing the case, and changing the law...

Judge [ Michael] Davis feels the same way and has already "implored" Congress to "amend the Copyright Act to address liability and damages in peer‐to-peer network cases such as the one currently before this Court."

University of California law professor Pam Samuelson, an expert on statutory damages and copyright law, also called for reform in a fascinating paper released in April 2009.

In reference to the first Thomas-Rasset judgment, Samuelson concluded, "Some jurors in the Thomas case wanted to award $750 per infringed song, while others argued for $150,000 per song; why they compromised on $9250 per song is a mystery. In today’s world where the average person in her day-to-day life interacts with many copyrighted works in a way that may implicate copyright law, the dangers posed by the lack of meaningful constraints on statutory damage awards are particularly acute."

One key suggestion for reform: allowing judges to revise damage awards to below the current $750 minimum threshold in such cases.

Had the amount been a "mere" $750 a song, for an $18,000 total fine, the Thomas-Rasset case would have offered little incentive to reform the law. But when the first of the RIAA's 30,000+ actions goes to trial and the plaintiffs emerge with a $1.92 million award... legislators may take notice."

http://arstechnica.com/tech-policy/news/2009/06/whats-next-for-jammie-thomas-rasset.ars

Pamela Samuelson on Copyright Reform, Bunsnip.com, 11/13/08

Via Bunsnip.com: Pamela Samuelson on Copyright Reform at Free Culture Conference, Berkeley 2008:

"I think one reason that it’s really important to think about copyright reform is because really pretty much every 40 years there has been copyright reform. So it’s time to really get that conversation started. And a lot of what we need to do is move to better principals about what a good copyright law would look like. It shouldn’t be as long – current copyright law is 200 pages long, 300 if you buy certain editions – and it’s too complicated. I can’t make my way through about half the provisions because they’re so incomprehensible. Maybe it was ok that copyright law was really abstruse at a time when the only people who needed to know anything about it were the industry lawyers who essentially were mediating these kind of inter-industry disputes. If they knew what it meant and nobody else did, who cared, as long as it just applied to them. But now that copyright law is really affecting and regulating our daily activities, we the people deserve a copyright law that’s simple, that’s fair, that’s balanced, and that gets us to a much better way of thinking about what good role copyright law can play.

Like some of the earlier speakers, I worry a lot about the implications of copyright for the activities that all of you do on a daily basis. There’s a really fun essay that was written by one of my colleagues in Copyright, John Tehranian, entitled, “Infringement Nation.” What John does in the article is go through the average day of a professor (seems to be modeled on himself)."

http://www.bunsnip.com/2008/11/free-culture-conference-2008-pamela.html