Responding to U.S. Department of Justice Statement of Interest Regarding Google Books Settlement

The Open Book Alliance today issued the following statement in response to the Department of Justice’s filing with the U.S. District Court:
The Open Book Alliance applauds the action taken today by the Department of Justice.  We believe that the DoJ’s Statement of Interest regarding the Google Books Settlement will help to preserve competition, promote innovation and protect the public interest.

The Department of Justice has made it crystal clear that the proposal before the court is overreaching and cannot be approved: “… the United States has reluctantly concluded that use of the class action mechanism in the manner proposed by the ASA is a bridge too far.”

We are particularly heartened that the Government identified the anti-competitive consequences this proposal would have on digital book sales and the search market, concerns that were voiced by the Open Book Alliance and its members.  The brief addressed the “exclusive access” Google would have been awarded by the settlement while also noting that, “This outcome has not been achieved by a technological advance in search or by operation of normal market forces; rather, it is the direct product of scanning millions of books without the copyright holders’ consent.”

GBS 2.0 Objection Roundup

By Gary Reback

The latest round of briefing produced yet another profound embarassment – bordering on an outright humiliation – for the parties proposing the Google Book Settlement.  Their original proposal met with a torrent of criticism so intense that Google and the publishers withdrew it and replaced it with an “amended” version.

But the amendments turned out to be more illusory than substantive, as an even more diverse array of important interests filed strong objections to the proposed settlement last week.  Individuals, groups and commercial enterprises filed more than fifty new briefs and letters opposing the amended deal.  The opposition came from every quarter:

• Canadian interests. The plaintiffs’ efforts to “buy off” Canadian opposition failed.  Hundreds of Canadian authors signed a letter to Judge Chin opposing the Settlement.  The Canadian Association of University Teachers – some 65,000 members strong – skewered the proposed deal in a separate filing (Dkt. 900).  Representative quote: “[T]he Authors Guild and the named author plaintiffs do not fairly and adequately represent the interests of CAUT members.”

• U. S. author groups. The American Society of Journalists and Authors, a professional association representing more than 1,400 freelance writers, and the Science Fiction and Fantasy Writers of America (Dkt. 864), along with the National Writers Union, an organization representing approximately 2,000 freelance and contract writers (speaking through the OBA, Dkt. 840), filed objections.  Representative quote:  The “unprecedented” Settlement “would imperil the intellectual property rights of their members and millions of other authors, as well as many publishers.” (Dkt. 864).

• International author groups. The Japanese P.E.N. Club (Dkt. 848-2), the New Zealand Society of Authors (Dkt. 867), leading organizations representing authors in Germany, Switzerland, Austria and Italy (Dkt. 868), organizations representing the interests of Indian authors (Dkt. 807), the Spanish Collective Management Organization (Dkt. 827), as well as the Dutch authors organization for authors and translators, Lira (Dkt. 891), objected.  Representative quote:  The Japanese P.E.N. Club explained that the Settlement “still fails to address the fundamental issues the writers worldwide are gravely concerned about.”

• Academic authors. University of California Professor Pamela Samuelson filed a letter of objection with 150 co-signatories (Dkt. 893).  Assucopie, an organization representing Belgian authors of academic and scientific works (Dkt. 882) objected as well.  Representative quote from Professor Samuelson:  The proposed Settlement is “fundamentally tainted” and “we feel … strongly that it would be better for Google not to have a monopoly on a digital database of these books.”

• Individual authors. More than 350 authors signed on to a petition written by Ursula K. LeGuin (Dkt. 839).  Other groups of authors filed separate objections (e.g., Dkt. 849 and 855).  Representative quote from the authors’ petition against the Settlement:  “The [Authors] Guild cannot and does not speak for all American writers.  Its settlement cannot be seen as reflecting the will or interest of any group but the Guild.”

• Commercial enterprises. Microsoft (Dkt. 874), Amazon (Dkt. 823), and AT&T (Dkt. 863) made or renewed objections.  Representative quote:  AT&T warned that in an “unprecedented maneuver,” the Settlement would “eliminate[] price competition among authors and publishers to the detriment of consumers and … entrench Google’s market power in Internet search, with potentially serious impact on the competitiveness and dynamism of the Internet ecosystem.”

• States. Connecticut (Dkt. 851), Texas (Dkt. 887), Pennsylvania, Massachusetts and Washington (all three Dkt. 860), filed new oppositions.  Representative quote:  The Commonwealth of Pennsylvania concluded that the Settlement’s structure “violates the unclaimed property law of every state and territory of the United States.”

• Consumer protection groups. Public Knowledge (Dkt. 895), the Center for Democracy & Technology (Dkt. 842), Consumer Watchdog (Dkt. 841), the Electronic Frontier Foundation (Dkt. 824), and the Institute for Information Law & Policy at New York Law School  (Dkt. 856) filed new objections.  Most telling was the change in position by the Institute for Information Law & Policy.  The Institute formerly recommended that the Court insist on the modification of troubling provisions in the Settlement.  After considering the proposed amendments, the Institute asked the Court to reject the proposed deal.  Representative quote:  “While the orphan works problem is serious, this massive class action settlement does not address it in a fair, just, and legitimate way.  Approving the Amended Settlement Agreement would set a dangerous precedent for future cases and undermine democratic political processes.”

• International publishers. French and English-language publisher Hachette (Dkt. 820-2, 822-2), the Italian Publishers Association (Dkt. 869), Indian publishers (Dkt. 807), VG Wort of Germany (Dkt. 857), the French Publishers Association (Dkt. 836), and individual French publishers (Dkt. 829, 831, 828, 833, 875 and 834) filed objections.  Representative quotes:  The French Publishers Association called the Amended Settlement “illogical, unfair and discriminatory” and the Indian publishers concluded that the Settlement was “contrary to principles of natural justice and fair procedure.”

• Sovereign nations. The Federal Republic of Germany (Dkt. 852) and the French Republic (Dkt. 853) renewed their objections.  Representative quote:  Germany referred to the Settlement as Google’s “wholesale grab for de facto compulsory license covering the display and non-display uses of worldwide digital book copyrights under the guise of an intellectual property class action.”

• Literary agents. Writers Representatives LLC (Dkt. 862) and Jenny Darling & Associates of Australia objected.  Representative quote from Stuart Bernstein of Representation for Artists and Susan Bergholz of Susan Bergholz Literary Services:  The “long settlement document, which combines incomprehensible legalese with vaguely and undefined terms, is too complex to be understood by copyright holders and their representatives, especially because until now, copyright holders were not required to defend their rights from what amounts to a hostile appropriation of those rights.” (Dkt. 888)

On the other hand, practically no one filed in support of the new version, which purports to limit the Settlement to books published in the U.S., the U.K., Canada and Australia.[1] The amendments drew dutiful letters of support from publisher associations in those countries, who doubtless cut a secret, sweetheart deal like members of  the Association of American Publishers (AAP) secured in the U.S.  The interested publisher associations, plus a single authors’ group from the UK (which candidly admitted that many of its members object to the deal), represented all the support the parties could muster at this stage of the proceedings.  Also, of the 400-plus parties who objected to the initial version, only one commercial enterprise withdrew its objection.

Many opponents of the deal, including the United States Government in its September 15 filing, challenged the legitimacy of the putative class representatives to serve in that capacity – because of separate side deals for the named publisher plaintiffs, the diversity of publisher and author interests not represented among the named plaintiffs, etc.  Despite what must have been a no-expenses-barred effort by the AAP to drum up publisher support for the amendments, not a single publisher – not one among the thousands and thousands of publishers in the United States – came forward to stand behind the self-appointed class reps in court.  The silence, as the saying goes, was deafening.

The Proposed Settlement is simply incomprehensible, except to the most highly trained lawyers.  Nevertheless, authors, publishers and public interest groups in overwhelming numbers took the time and effort and in many cases bore significant expense (to hire lawyers) in order to make their complaints known.  An untold number of individual authors registered their protests by opting out of the deal.  In the court of public opinion, the Proposed Settlement was soundly rejected.

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[1] Google said it was going to keep right on scanning books published in other countries; it just wasn’t going to pay rightsholders any consideration for its appropriation of their works.

Reps. Gonzalez & Green Ask DOJ to Scrutinize Google Books Settlement

Congressmen Charlie Gonzalez (TX-20) and Gene Green (TX-29) today announced that they sent a letter to U.S. Attorney General Eric Holder highlighting their questions and concerns about GBS 2.0. The Congressmen were particularly focused on the fact that many authors and publishers who are not part of the class action lawsuit will be affected by the settlement.

The letter said, “Today, there are hundreds of thousands of authors who are not members of the Authors Guild and hundreds of publishers who are not part of the [Association of American Publishers] who would be most acutely affected by the Google Books Settlement.  Yet their voices have been largely excluded from the process.”

Congressmen Gonzalez and Green said that they were spurred to contact Attorney General Holder as a result of several letters they have received from minority publishers.

Opposition Pours In

This week was the perfect storm for opponents of the revised GBS with condemnation raining down on the flawed book grab from around the globe.

Thursday was the last day for public filings in opposition to the settlement and there was no shortage of opponents or different takes on why the GBS was destructive, unfair and beyond salvation.

Consumer groups were especially active with comments filed from Public Knowledge and Consumer Watchdog.  In its brief, Consumer Watchdog noted that not only is the settlement an unconstitutional attempt to revise copyright law, but it also continues to award Google an unlawful and anti-competitive monopoly.

From the author’s camp, filings were delivered to Judge Chin from the Science Fiction and Fantasy Writers of America and American Society of Journalists and Authors, Inc. Noted U.K. author and anti-GBS petition signer Ursula K. Le Guin also shared her case against the revised deal with the court.

And while the revised settlement cut out many non-english writing authors in an attempt to placate international objections to the deal – while also shattering the illusion of the library as being a representation of humanity’s knowledge – another round of objections sprang up from all corners of the globe.  Groups representing Japanese authors and Indian authors joined advocates from Germany, France, Italy and the U.K. in denouncing the plan.

We can only hope that Judge Chin and the settlement parties are listening to this overwhelming and varied outpouring of opposition.

AMENDED GOOGLE BOOKS SETTLEMENT IS A “PALTRY PROPOSAL” THAT DEFIES ANTITRUST LAWS

The Open Book Alliance today formally filed Amicus Curiae in opposition to the proposed settlement between the Authors Guild, Inc., Association of American Publishers, Inc. and Google, Inc.

The OBA filing states,  “The torrent of criticism to the settlement may have produced amendments to the class definition, but it has not affected Google’s conduct one iota…..All in all, little has been accomplished, save from Google’s perspective as it continues to build its lead over competitors.  …The Court’s procedures are ill-suited for resolution of what is now at stake in this matter – rewriting the copyright law, restructuring the publishing industry, and maintaining a competitive search market.”

The proposed Google book settlement is not a philanthropic effort to bring literature into the 21^st century and bridge a literary divide.  In reality, Google is focused on becoming the sole owner of an immense digital library that will improve the company’s advertising-based search business.  This de facto exclusive license will provide Google with an enormous advantage over its search competitors.

The brief explores the market importance of so-called “tail queries” – rare or obscure search requests that are hard to fulfill accurately.  The brief explains how “[d]igital rights to virtually all out-of-print books provide Google with a decisive advantage in responding to tail queries.”  The brief continues, “[i]f Google can deny its search rivals the ability to integrate the same corpus of books, Google’s lead in search will become insurmountable.”

The brief also uncovers “carefully crafted exceptions” inside the settlement regarding the Google Partner Program.  Google has signed “Partner” agreements with thousands of publishers.  Doubtless, many – if not all – of the named publishers in the settlement have their own agreements with Google that will govern the payments they receive from Google, in lieu of the provisions that were negotiated in the settlement for other class members.  The brief states, “…[this] permits the parties to negotiate secret side deals to govern the economic terms of books licensed to Google under the Settlement at any time, even after a court review of the Amended Agreement, effectively evading judicial and public scrutiny…”.

The OBA believes that the proposed settlement threatens to bottleneck the access to and distribution and pricing of the largest, private digital database of books in the world. It would do so by using the class action mechanism to not only redress past harm, but to prospectively shape the future of digital book distribution, display and search.

In the Amicus, the OBA highlights five key reasons why the amended settlement is a “paltry proposal”:

• “Control of the Search Market is Google’s True Goal.” Google Books Director Daniel Clancy has stated that Google did not undertake the book-scanning project in order to make money through digital book sales or library subscriptions.  The court should prevent Google from using the judicial system to bolster its search monopoly.
• “Secret Side Deals Among the Parties Actually Control The Settlement Terms.” Google has signed “Partner” agreements with thousands of publishers.  Doubtless, many – if not all – of the named publishers in the settlement have their own agreements with Google that will govern the payments they receive from Google, in lieu of the provisions that were negotiated in the settlement for other class members.   The terms of partner agreements remain secret.  In addition, publishers can withdraw display rights of books they register.  As a result, notwithstanding the millions and millions of books Google claims it has digitized, the Registry’s corpus may well end up with only a few million volumes.
• “Google’s Anticompetitive Bundling Undermines Competition in Digital Book Distribution.” Google has already undermined competition by giving preference to brands such as Google Maps over competitors like MapQuest.  Concerns abound about the consequences to competition in digital book distribution by augmenting Google’s market power through a judicial grant of access to books that no other competitor can secure.
• “The Amendments Fail to Resolve Antitrust Objections.” The settlement bestows upon Google a de facto exclusive license to millions of books and continues to set a price floor for out-of-print books.  The big publishers continue to look to the settlement to dampen price competition and stabilize prices.
• “The Settlement Fails Even a Rule of Reason Evaluation.” The per se rule, rather than the rule of reason, governs horizontal price fixing schemes embedded into joint ventures. A rule of reason evaluation does not turn solely on increasing output; if it did, every joint venture for the creation of product would pass antitrust scrutiny.

And The Hits Keep Coming…

In the lead up to February’s ruling, we’ve seen an avalanche of objections from authors, unions, academics and foreign governments.  This morning we can add a tidal wave of opposition from India to the list.

In a submission to Judge Chin, Indian authors and publishers, along with the Indian Reprographic Rights Organization (IRRO) and Federation of Indian Publishers (FIP) demanded that Google be forced to uphold the principles that govern copyright law and intellectual property.

“The Google Book Settlement is contrary to every international treaty that governs Copyright laws. Google’s unilateral conduct is a brazen attempt to turn Copyright law on its head, by usurping the exclusive rights of the Copyright holder,” says Siddharth Arya, legal counsel for IRRO.

Beyond an objection to the general disregard shown for copyright holders, the opponents outlined how the ruling impacts audiences far beyond U.S. shores.

The current scope of GBS2.0 is books that are either registered with the United States Copyright Office or published in the UK, Canada and Australia. However, it as much impacts the rest of the world as any author published in the aforementioned countries is included in the settlement. In the current global economy, Indian authors like to see themselves published abroad for higher royalties and better professional services.

Bottom line, the GBS is causing the United States’ international partners to question our commitment to protecting intellectual property.  The opposition is yet another reminder of what a truly disruptive and harmful idea the GBS has become.

Authors Strike Back Against GBS

On January 22, the National Writers Union held its third and final briefing for writers still scratching their heads about the proposed Google Book Settlement. Those unable to attend in person can check out a recording of the event on NWU’s website here.

Just two days earlier, the American Society of Journalists and Authors (ASJA), the National Writers Union (NWU), and the Science Fiction and Fantasy Writers of America (SFWA) and the Internet Society’s New York Chapter (ISOC-NY) jointly sponsored a separate workshop to discuss the implications for writers.  A recording of that event can be found here.

And last week, science fiction author Ursula Le Guin and 365 other authors have announced their intention to petition Judge Chin to ask that the U.S. “be exempted from the settlement”, and that “the principle of copyright, which is directly threatened by the settlement, be honored and upheld in the United States.”

At the Berkley event, noted legal expert, Berkley professor and GBS commentator Pamela Samuelson kicked off the presentation with a fair but succinct recap of the settlement to date and options available to the professional authors gathered in the room.  A good deal of time was spent on untangling the differences between opting out of the deal and objecting.

Beyond these binary choices, the crowd of professional communicators was (not surprisingly) flummoxed when they learned that, even if they did opt out of the settlement, Google would still likely scan their works.  That the onus was on the author to file paperwork and chase after the infringer to remove their books from the database – or rather, move them into a “dark archive” – did not go over well.

Next up was Cindy Cohn, Legal Director for the Electronic Frontier Foundation and its General Council.  Cindy reiterated the reasons why the EFF had become involved in raising questions about the GBS, specifically on issues of user privacy and data retention.

While taking the time to clearly state her belief that a digital library would be a tremendous benefit for people all over the world (a sentiment the OBA agrees with whole heartedly) she expressed concerns about Google’s ability to track users’ reading habits and search history.

It was noted that librarians and bookstore owners have a storied past that includes fighting for patron’s privacy rights.  With a Google-operated global library, the ability to anonymously purchase or browse the book of your choice with the expectation of privacy would become a thing of the past.

Most poignant, however, was the general question of how such a thing could have happened?  How could all the authors in the room, who had never had a conversation with Google, now find themselves beholden to an agreement they were not part of and had no role in negotiating.

That Google had circumvented the normal policymaking channels and used the class action process to negotiate an exclusive deal was both frustrating and incomprehensible to the audience.

They are right to be upset.

Harvard Professor Lessig Calls GBS 2.0 “Path to Insanity”

As the January 28 deadline for GBS 2.0 public comment period quickly approaches, statements from settlement opponents are pouring in.  Today, Harvard Professor Lawrence Lessig wrote an essay in The New Republic that called the settlement a “path to insanity” that will be “culturally asphixiating.”

Lessig believes the settlement bring major copyright questions to light and calls for an overhaul to copyright law:

The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed. It is the opposite of the old slogan about nuclear power: every bit gets metered, because metering is so cheap. We begin to sell access to knowledge the way we sell access to a movie theater, or a candy store, or a baseball stadium. We create not digital libraries, but digital bookstores: a Barnes & Noble without the Starbucks.

Three Questions with Peter Brantley

OBA co-founder Peter Brantley recently sat down to answer three basic questions on the proposed Google Book Settlement.

1)   What is the proposed settlement such a big deal?

2)   What will the world look like if the proposed settlement is approved?

3)   Is there another way besides Google Book Settlement to deliver on the promise of a digital library while also respecting copyright holder’s rights?

Look for more interviews from copyright experts and digital library advocates in the weeks to come.

Has GBS 2.0 Remedied Department of Justice Objections?

As the January 28 deadline for Google Books Settlement (GBS) 2.0 public comment quickly approaches, it is an excellent time to take a step back and remember the criteria that the Department of Justice (DOJ) will use to judge the quality of the revised settlement.

The DOJ called for several specific requirements including the following:

• Any forward looking business models must not use opt-out, but use opt-in for absent rightsholders
• Foreign rightsholders should be adequately represented
• Author/publisher representatives that are parties to the settlement agreement must be bound by the settlement and not have separate deals
• Funds escrowed from unclaimed works cannot be diverted to other rightsholders
• Book rights registry should have additional obligations to find absent rightsholders to avoid conflicts among class members
• Settlement notice needs to be more robust if broad class is being used
• Settlement cannot allow horizontal pricing agreements by rightsholders
• Settlement cannot create de facto exclusive copyright license for Google
• Settlement cannot rely on additional class action litigation to ensure competition

The Open Book Alliance has thoroughly analyzed GBS 2.0 to see if it was altered to allay the DOJ objections.  While, some cosmetic alterations were made, the substance is still the same: GBS 2.0 imposes a Google monopoly and violates copyright laws and practices.    If GBS 2.0 were a home remodel, Google re-arranged the furniture and changed the drapes but neglected to fix the gaping hole in the roof and the flooding in the basement.

Our nation’s literary heritage should NOT be in the hands of one commercial entity.  The priorities needs to be  openness and access above search, advertising and profits.