O'Brien: Scrap Google book settlement and start fresh; San Jose Mercury News, 9/2/09

Chris O'Brien via San Jose Mercury News; Scrap Google book settlement and start fresh:

"At first blush, Google's plan to digitize millions of books seemed like a grand idea, opening up the world's libraries to readers everywhere.

Unfortunately, Google's effort has been clumsy from the start. The Mountain View company bulldozed into the effort in 2005 without building consensus around its plans, and then acted surprised when its motives were questioned.

The result was years of litigation and a proposed settlement that has only antagonized critics.
By Friday, authors need to decide whether they want to accept that settlement or opt out and reserve their right to sue Google.

But before then, I think Google should scrap the whole thing and go back to square one.

The proposed settlement has the potential for creating the framework for how books are digitized for the next century. The stakes for readers, authors and libraries are high.

Unfortunately, many on the outside of this process looking in feel like Google's been throwing its weight around on this issue. Google didn't exactly help matters in this regard when a spokesman was quoted on a Wall Street Journal blog calling one opposition group the "Sour Grapes Alliance." Gee, I wonder why some folks think Google can be arrogant?

It's a shame that it's come to this, because of the amazing potential behind this idea...

No doubt the idea of starting again will elicit groans from the Googleplex. Four years of litigation probably feels like an eternity for a 10-year-old company that's used to moving at Internet speed.

But it's the kind of goodwill gesture that would go a long way toward diffusing the mounting frustration among critics and begin laying the groundwork toward an equitable solution. If Google's motives are true, and I believe they are, then patience is the best course.

It's far more important to get it right than to get it done."

http://www.mercurynews.com/breakingnews/ci_13248382

More questions than answers on Google Books; CNet News, 8/29/09

Tom Krazit via CNet News; More questions than answers on Google Books:

"Google's Dan Clancy had patiently answered question after question regarding Google's' Book Search settlement with publishers and authors until late in the afternoon Friday, when he was finally left speechless.

A young man from the University of California at Berkeley's School of Information asked Clancy what kind of message was sent when Google decided to "copy first and answer questions later." The question--for which there's no safe answer, if you're in Clancy's shoes--perhaps underscored the core of the opposition to the settlement, reached in October, after Google was sued in 2005 for scanning out-of-print works without explicit permission.

If the class action settlement is approved, Google stands to gain control of a priceless asset. Jason Schultz, acting director of UC Berkeley's Samuelson Law, Technology, and Public Policy Clinic, called it "the largest copyright-licensing deal in U.S. history:" the right to display the contents of out-of-print books that are still covered by copyright protection.

Google, however, has already scanned more than 10 million books. At the moment, it's not allowed to display more than a few snippets of copyright-protected books for which it doesn't have an explicit agreement with the rights holders. If the settlement is approved, Google will suddenly flip a switch and offer full-text searches of those books, as well as links to bookstores.

Nothing vexes Google's opponents more than the fact that the company assumed that it had the right to digitize nearly 100 years of written material without serious negotiations with those rights holders until it was sued. Authors have until Friday to decide if they want to opt out of the settlement and preserve the right to sue Google on their own for digitizing their book without their permission, though they can tell Google to remove their books from the Book Search archive, even if they remain in the class...

But taking Google at its word requires trust, and trust in corporations is in short supply at this point in American history. It's taken perhaps longer than it should have, but Google is gradually realizing that a fair portion of the public no longer sees it as a cute little Silicon Valley start-up with idealistic stars in its eyes, one that insists "you can make money without doing evil."

Google damaged that trust when it began scanning books without permission, arguing that it was allowed to do so under fair-use laws. Publishers and author groups also harmed that trust when they turned over the key to the castle by bringing the lawsuit as a class action, suddenly making plaintiffs out of millions of authors who did not necessarily appreciate the future value of digital books in 2005, nor authorize the negotiation of the rights to their works."

http://news.cnet.com/8301-30684_3-10321371-265.html

The New Rumpelstiltskin: Google Books; San Francisco Chronicle, 8/21/09

Michelle Richmond via San Francisco Chronicle; The New Rumpelstiltskin: Google Books:

"There's a new Rumpelstiltskin in town, but he's not going after the miller's daughter. This Rumpelstiltskin has set his sights on authors, who, according to critics, may unwittingly spin him buckets full of gold. Judging from the panic issuing from home offices and cafes across the country, you'd think he was trying to steal our firstborn.

I'm talking about Google Books, and a deal negotiated between the Internet giant and the Authors Guild: the Google Books Settlement.

Maggie Shiels of the BBC writes today about the late but noisy outcry from Microsoft, Yahoo, and Amazon, who protest the settlement on the grounds that it constitutes a monopoly on digitization of books. The naysayers in the Internet industry have a point, not to mention an enormous stake in the matter. But coming purely from an author's perspective, I feel quite a bit less alarmed than some of my colleagues.
I'm of a mind to believe that the settlement may actually be advantageous for authors. For one thing, we write books in the hopes that they will be read....

There's a wee bit of money involved, but not enough, at the outset, to be a determining factor unless you're truly a starving artist. Each author will get anywhere from $60 to $300 per book that was scanned by Google without authorization. That's enough to buy a few reams of paper or a nice bottle of Scotch, but not much else. In the future, authors will share with publishers 67% of the profits gleaned from digitization of their books, with 33% going to Google (therein the spun gold). Profits will presumably come from ads listed beside any page of a book, as well as from purchases of digital copies of the book--if the author chooses to allow this type of purchase. Ultimately, this could turn out to be a lot of money, but again, it's too early to tell.

That's really not so scary, is it? Of course, Rumpelstiltskin didn't appear scary either, when he first appeared to the miller's daughter, offering to help her spin gold for the king. It wasn't until later that he showed his true colors, and tried to make off with her baby."

http://www.sfgate.com/cgi-bin/blogs/richmond/detail?entry_id=45958

Open Books Alliance calls for investigation into Google Books Settlement; Information World Review, 8/25/09

Information World Review; Open Books Alliance calls for investigation into Google Books Settlement:

"The Open Books Alliance seeks resolution on issues of copyright, access, anti-trust and privacy.

SLA chief executive Janice Lachance said: “A completely electronic, searchable, and universally accessible repository of digital books has the potential to bring untold value and knowledge to individuals, organisations and libraries, making more information available to more people around the globe. We look forward to that day. “In the meantime, we are joining this effort because we believe that the US Department of Justice (DOJ) must look into the full ramifications of this settlement on issues of copyright, access, affordability and privacy.”

SLA aims at ensuring that any mass book digitisation and distribution system addresses those extremely important issues, and that access to such valuable information remains open and competitive.

“As with any important legal decision that may threaten the accessibility of information to the public, SLA believes it should be grounded in sound public policy, be mindful of the long-term benefits for the greater good, as well as take into consideration input from the public and important stakeholders,” Lachance added.

In the coming weeks, the alliance will release information about its intent, the members, and its actions, including specific details as to its intended course of action with the DOJ."

http://www.iwr.co.uk/information-world-review/news/2248405/open-books-alliance-calls

Google's book project faces growing opposition; Guardian, 8/19/09

Ed Pilkington via Guardian; Google's book project faces growing opposition:

"The latest objection, filed with the Manhattan court today, comes from a Washington-based lawyer and writer who specialises in class-action law and monopolies. In his 47-page complaint, Scott Gant argues that potentially millions of authors in America and around the world are being coerced into accepting the deal without being fully informed about its implications.

"Anyone taking part in this project should be doing so as a conscious choice to participate knowing fully what they are doing. In fact, people are being forced to hand over to Google some of their intellectual property often with no understanding of what that means," Gant said.

Under US class-action law, authors and publishers who do not specifically opt out of the settlement are deemed to have signed up to it. But Gant points out that as an author himself — he wrote a book on the digital information revolution called We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age — he has never received any legal notice about the case.

Google announced its plans five years ago, arguing that the project to build up an online archive of millions of books that are out of print was part of its mission to "organise the world's information". It has already scanned at least 7m books, using cameras able to convert up to 1,000 pages an hour.

Most of the books, which must have been published before 5 January this year, have come from libraries and publishers in the US. Google has so far struck partnerships with 29 of the world's biggest libraries, including those of Harvard and Stanford and the Bodleian in Oxford."

http://www.guardian.co.uk/technology/2009/aug/19/google-internet-digital-book

Tech groups join fight against Google books; London Times, 8/21/09

Mike Harvey via London Times; Tech groups join fight against Google books:

"Critics say that the deal gives Google the unimpeded ability to set prices for libraries, once they scan books and put them on the Internet. They also say that it would also allow Google — and only Google — to digitise so-called orphan works, which could pose an antitrust concern. Orphan works are books or other materials that are still covered by US copyright law, but on which ownership rights are not clear.

Google took issue with the criticism. Gabriel Stricker, a spokesman for the company said: "The agreement is not exclusive. If improved by the court, it will expand access to millions of books in the US."

http://business.timesonline.co.uk/tol/business/industry_sectors/technology/article6805993.ece

Google Rivals Will Oppose Book Settlement; New York Times, 8/21/09

Miguel Helft via New York Times; Google Rivals Will Oppose Book Settlement:

"Amazon, Microsoft and Yahoo are planning to join a coalition of nonprofit groups, individuals and library associations to oppose a proposed class-action settlement giving Google the rights to commercialize digital copies of millions of books...

Gary L. Reback, an antitrust lawyer in Silicon Valley, who is acting as counsel to the coalition, said that Amazon, Microsoft and Yahoo had all agreed to join the group, which is tentatively called the Open Book Alliance. The group, led by Mr. Reback and the Internet Archive, a nonprofit group that has been critical of the settlement, plans to make a case to the Justice Department that the arrangement is anticompetitive. Members of the alliance will most likely file objections with the court independently.

“This deal has enormous, far-reaching anticompetitive consequences that people are just beginning to wake up to,” said Mr. Reback, a lawyer with Carr & Ferrell, a firm in Palo Alto, Calif. In the 1990s, Mr. Reback helped persuade the Justice Department to file its landmark antitrust case against Microsoft.

Some library associations and groups representing authors are also planning to join the coalition, he said."

http://www.nytimes.com/2009/08/21/technology/internet/21google.html?scp=2&sq=google%20book%20search&st=cse

Major Objection to Google Book Search Settlement Is Filed; Publishers Weekly, 8/19/09

Andrew Albanese via Publishers Weekly; Major Objection to Google Book Search Settlement Is Filed:

"The Google Book Search settlement has its first significant objection. On Wednesday morning author and attorney Scott Gant filed a 50-page objection with the court that claims the sweeping deal is an illegal expansion of class-action law. In a copy of the brief shared with PW, Gant, a Harvard-educated lawyer with more than a decade of class-action litigation experience, and the author of We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in The Internet Age (Free Press), argues that the settlement is a “predominantly commercial transaction,” that “cannot be imposed through the Federal Rule of Civil Procedure 23,” the order that authorizes class action.

Among his arguments, Gant asserts that the settlement:

Fails to satisfy notice requirements imposed by Rule 23 and the Fifth Amendment’s Due Process Clause

Fails to provide putative class members with adequate compensation

Fails to satisfy the typicality and adequacy requirements of Rule 23

Would vest Google with significant market power which it could not acquire without the settlement.

Raises serious antitrust issues that must be considered as part of this Court’s review of the Proposed Settlement.

Gant’s most damaging argument, however, may be that the settlement fails to safeguard the due process rights of absent class members as required by law—a potentially fatal blow to the settlement, because if upheld by the court, it would remove a critical foundation of the deal, under which Google would essentially obtain a license to works without the specific consent of the copyright holder."

http://www.publishersweekly.com/article/CA6678673.html?industryid=47152

Lawyer and Author Adds His Objections to Settling the Google Book Lawsuit; New York Times, 8/19/09

Miguel Helft and Motoko Rich via New York Times; Lawyer and Author Adds His Objections to Settling the Google Book Lawsuit:

"In the latest objection, Scott E. Gant, an author and partner at Boies Schiller & Flexner, a prominent Washington law firm, plans to file a sweeping opposition to the settlement on Wednesday urging the court to reject it.

“This is a predominantly commercial transaction and one that should be undertaken through the normal commercial process, which is negotiation and informed consent,” Mr. Gant said in an interview. Google and its partners are “trying to ram this through so that millions of copyright holders will have no idea that this is happening.”

Unlike most previous objections to the project, which focused on policy issues and recommended modifications to the settlement, Mr. Gant argues that the agreement, which gives Google commercial rights to millions of books without having to negotiate for them individually, amounts to an abuse of the class-action process. He also contends that it does not sufficiently compensate authors and does not adequately notify and represent all the authors affected.

Legal experts, who had not seen the filing but heard a description of it, said it could be the most direct attack on the agreement so far.

“It may be the most fundamental challenge to the settlement yet,” said James Grimmelmann, an associate professor at the Institute for Information Law and Policy at New York Law School, a critic of the agreement whose blog tracks filings and commentary related to it...

“I opted out of the settlement just on ornery grounds,” said Christopher Buckley, author of “Thank You for Smoking” and “Losing Mum and Pup,” a memoir. He said he was suspicious of the claims by Google and the Authors Guild that the settlement would help breathe new life into out-of-print works. “I think books either stay in print or don’t pretty much on their own,” he said.

He said he was skeptical that the agreement was increasing the public good. “Whenever I hear capitalism proclaiming noble motives,” he said, “something makes me check my wallet.” "

http://www.nytimes.com/2009/08/19/technology/internet/19google.html

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

National Writers Union Opposes Google Book Settlement; Wired.com's Epicenter, 8/13/09

Ryan Singel via Wired.com's Epicenter; National Writers Union Opposes Google Book Settlement:

"Add yet another voice to the chorus of protests over a proposed settlement of a class-action copyright suit that clears Google to transform the world’s dusty library tomes into the bookstore and online library of the future.

This time, the National Writers Union — which represents some 1,500 freelance writers — described a proposed deal as “grossly unfair to writers.”...

But Google should not have digitized books without authors’ permission, said Larry Goldbetter, the president of the National Writers Union, which operates as a local of the United Auto Workers. Google argues such scanning is covered by the Fair Use provision of copyright law, which allows for transformative and partial uses of copyright material.

“[W]riters whose copyrights were violated might receive a check for between $60 and $300 for each book and $15 per article,” he added. “Compared to the number and seriousness of the violations, the amount being offered by Google to each writer is ridiculously low.”"

http://www.wired.com/epicenter/2009/08/national-writers-union-opposes-google-book-settlement/

U.C. Professors Air Google Book Search Settlement Concerns; eWeek.com, 8/17/09

Clint Boulton via eWeek.com; U.C. Professors Air Google Book Search Settlement Concerns:

"Eighteen faculty members for the University of California say they are concerned about the Google Book Search settlement. Though the professors aren't opposing the deal, they are seeking changes that will prevent price-gouging, as well as mechanisms to let academic authors of orphan books license their books to the public domain or Creative Commons. They also share the privacy concerns voiced earlier by the ACLU and EFF."

http://www.eweek.com/c/a/Search-Engines/UC-Professors-Air-Google-Book-Search-Settlement-Concerns-862110/