Just a few hours ago Judge Chin issued a ruling that is bound to make authors, photographers, graphic artists and content creators in general happy. The ruling finds that the Author’s Guild and others representing photographers and graphic artists can sue on behalf of their membership.
Google tried to block this action by citing their own research that suggested content creators loved the idea of the search giant scanning protected works. Judge Chin wasn’t buying it, noting that these collective organizations are better suited to interpret their member’s wishes and are a more efficient vehicle for making the fight, “given the sweeping and undiscriminating nature of Google’s unauthorized copying.” Google apparently would have preferred battling authors in court one on one.
The attempt to block the Author’s Guild is especially ironic given that Google claims its proposed settlement with two other author groups did speak for the rights of all authors. So much for having your cake and eating it too.
Everyone can now look forward to a decision on the important merits of the case.
Everyone knows Google has scanned tens of millions of books, including over 3 million books in the public domain, and that it got most of these books from many different libraries, public and private.
What most don’t know is that Google forces those libraries to use technology to restrict Internet access to those digital copies, even the public domain books that are no longer copyrighted.
Under Google’s contracts, those libraries must deploy “technological measures” to prevent other libraries, digital archives, researchers, competing search engines, and others from downloading and analyzing the content of those public domain books. That’s wrong. Public domain books should always be accessible by the public, and not locked up by Google’s technology.
What are “technological measures” or TPMs? Think DRM, encryption, and other access controls typically used to protect copyrighted music and movies from piracy. TPMs like the ones Google requires are backed up by the force of law, specifically Section 1201 of the Digital Millennium Copyright Act. That law imposes civil and criminal penalties on anyone who tries to circumvent or disable TPMs without permission of the copyright owner. We believe strongly that this law should never be used by Google to threaten civil and criminal liability on users of digital public domain books, particularly where such threats could cause substantial harm to competition.
Fortunately, every three years the United States Copyright Office examines how TPMs are used to see if they are inhibiting the legitimate, non-infringing use of creative works. Today we filed comments asking the Copyright Office to make clear that Google cannot invoke the law against users of public domain books. We’ve seen Google take many tortured public policy positions throughout the GBS saga, but it is still shocking to watch the company that promotes everything “open” resort to a scheme to keep public domain books “closed.”
In what has become almost frighteningly routine, the three parties to the disgraced and rejected Google Book Settlement were in court again today to update Judge Chin on the status of their case. The news coverage is focusing on a few interesting developments – “progress” between Google and the publishers, a seeming lack of progress between Google and the Authors Guild, and a schedule for a trial on the original litigation (which some observers doubt will ever occur).
Back in March, when Judge Chin sided with the U.S. Department of Justice and rejected the proposed settlement, there was an inclination to believe that Google’s audacious attempt to unilaterally rewrite public policy had been defeated.
But as this process unfolds, it becomes more like Survivor: Google Edition – outwit, outlast, outplay. Emphasis on outlast. Google continues to scan thousands of books per month – at least 15 million unauthorized scans so far. Google continues to exclusively crawl and index these scans – for untold benefit to its dominant search engine. Google continues to wield its nearly unlimited resources to exploit a deliberative legal process so that their efforts can continue. A deal with the publishers would give Google every incentive to continue an expensive litigation track with an Authors Guild ill-equipped to take on a company that makes $2 billion per quarter in the courtroom.
It’s kind of like those Survivor seasons where one of the tribes has a well-outfitted camp with plenty of food, water and shelter while the other is left uncovered in a desert. Except that the tribe in question is inhabiting the super camp illegally.
Even so, with the Federal Trade Commission and State Attorneys General investigating every aspect of their business practices and the Senate Antitrust Subcommittee holding a hearing next week into their market power, there is hope for a fair resolution to these issues.
No offense to the producers or fans of Survivor.
The news that Google’s partners in the ill-fated Google Book Settlement at the Authors Guild have recently filed a lawsuit against HathiTrust, the consortium of university libraries that has received book scans from Google, is just one more sign of the unraveling deal. In light of the expected demise of the GBS, it appears that the Authors Guild is doubling down on the suit against Google that kicked this entire process off years ago. As the complaint states, “by digitizing, archiving, copying and now publishing the copyrighted works without the authorization of those works’ rights holders, the universities are engaging in one of the largest copyright infringements in history.”
As the GBS heads into what might be its final hearing tomorrow, Google’s friends are running for the hills. As we said earlier this week, Google’s cool factor creates a moth-to-the-flame effect where people may initially be attracted, but end up getting burned. It’s been clear to outside observers for some time that Google is all about Google – Google’s book scanning project, despite protests to the contrary, is about making Google money. While the Authors Guild may have been initially attracted to the idea of working with Google, it appears that they’ve realized that the light that they were attracted to is really a flame.
As we approach the September 15th status update which could signal the end of the road for the Google Books Settlement (especially now that the Authors Guild has filed a lawsuit against HathiTrust, which is the consortium of libraries that has received book scans from Google), it’s worth a step back to take a look at the broader picture that has emerged since we began this process almost three years ago.
At the outset of the Google Books adventure, Google’s scanning efforts were talked about in a whiz-bang, what-will-Google-think-of-next, tone of voice. After all, Google’s motto is “don’t be evil,” right? Those crazy kids in Mountain View would never do anything wrong or even . . . gasp . . . illegal!
But once the delays started and people had a chance to think about what Google was really doing, they began to ask questions and peel back some of the layers, attitudes began to change. People began to realize that Google, being a public corporation, might be motivated by money, and that every time that Google moves into another vertical market (like Book Search) it’s really a new source of consumer information that it can monetize and use to strengthen its dominant position. Seven years removed, the cross section of consumer advocates, librarians, authors and publishers that have publicly opposed the settlement is indicative of how far the Google Book Search project has fallen.
If you step back even further, the downfall of the Google Book Settlement is a microcosm of Google’s macro-scale problems. Less than a week after the upcoming GBS conference, the Senate Judiciary Committee’s Subcommitte on Antitrust will hold a hearing entitled The Power of Google: Serving Consumers or Threatening Competition?” Like the GBS, over the last three or four years, law enforcement officials no longer accept Google’s “trust us” mantra at face value. To wit: just a few weeks ago, Google agreed to fork over a whopping $500 million after an investigation by the Justice Department revealed that Google had been assisting (and profiting from) illegal online pharmacies who sold drugs to Americans. And the Attorneys General of Ohio, Texas, California, and New York, as well as the Federal Trade Commission, have opened investigations into Google’s business practices. Remember, it was the Department of Justice’s devastating brief and testimony at the Fairness Hearing that captivated the legal and literary communities’ attention and took what was once thought of as a fait accompli and turned into one of Google’s most public repudiations.
The greed, audacity, and arrogance that led Google to attempt to turn copyright, class action, and antitrust law on its head with the GBS are the same motivating factors that have led to the massive increase in scrutiny of the company as a whole. It’s too early to tell what the end result will be, but the one thing that is crystal clear from both the GBS and Google’s larger troubles is that the time for blindly trusting Google is long over.
Since the beginning of this process, criticism of the Google Book Settlement fell roughly into three categories – objectors who viewed the terms of the deal as a complete abrogation of existing coptyright law, those who focused on the role that Google Book Search and the settlement terms played in Google’s continuing abuse of its market dominance in violation of antitrust laws, and those who viewed the settlement as a total misuse of the class action mechanism.
Over the last two years, the most direct blows came from those who objected on antitrust (such as the Department of Justice) and copyright grounds (e.g., the Register of Copyrights, Mary Beth Peters, testifying that GBS would “turn copyright on its head”), but it appears as though the final knockout blow will come from the class action objectors.
Professor James Grimmelman, an avid GBS watcher, noted last month that a recently decided case in the Second Circuit with striking similarities to the GBS all but ends any chance that the GBS will survive. As Professor Grimmelman writes,
“The parallels between the two lawsuits — the Google Books suit and the freelancers’ suit — are striking. Both were brought as putative class actions on behalf of copyright owners against large commercial entities that have allegedly been making infringing copies. Both were brought by a coalition including the Authors Guild, and indeed, they even used the same lawyers. Both morphed into global settlements that would have provided compensation in exchange for allowing the works to stay in the databases — and possibly be used in new ones. And both settlement classes were riven by the same, fatal fault lines.”
The long and short of it is that the proposed class is too divided with too many disparate interests to survive, and so it looks like we may be headed to trial. Stay tuned to see if the GBS can push itself up off the mat, or if it’s really down for the count. We will know much more after the parties meet again with Judge Chin on September 15th.
Law professor and copyright expert Pamela Samuelson, who we’ve written about here before, recently participated in webinar moderated by Publishers Weekly on the rejection of the Google Book Settlement. During the panel, she called on the parties involved to reach a new settlement and, more importantly, for the US Copyright Office to get involved so that fundamental copyright reforms can be had through legislation, not litigation. Noting that Judge Chin indicated a preference for a new settlement premised on opt-in, she went on to say that “the [U.S.] Copyright Office is the best entity to find out what the parties want and what may be a good model for legislation.” This jibes with what Judge Chin wrote in his opinion rejecting the GBS when he said, “… the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court. . . . The questions 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.” We’ve long argued (as has Prof. Samuelson) that the GBS represented a mechanism to sidestep Congressional authority over copyright reform, and we rejoin her call for orphan book legislation now that the flawed GBS has been rejected.
The Center for Democracy and Technology recently noted (and quite rightly, we might add), that although that Judge Chin rejected the flawed Google Books Settlement, there are still many outstanding concerns – reader privacy being an important one.
As CDT writes, Google
“is moving right along with its project to digitize and offer books licensed through its Partner program. [And] [l]imiting customer previews, facilitate lending among friends, and sync “bookmarks” across devices all require fine-grained tracking of not just what books a person buys or browses, but also what pages she’s read, what passages she’s highlighted, and with whom she’s shared which books. . . . Such a cache presents new opportunities for tracking and data mining, as well as a tempting honeypot for government or third-party litigants.”
OBA has voiced the same types of concerns over in the past – especially in light of some of Google’s highest ranking employees’ views on privacy, like then-CEO Eric Schmidt’s infamous statement that “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”
The aggregation of data on what people are reading is a significant break with the centuries-old American tradition of vigorous protections of reader privacy. Back in February, we blogged about a paper written by two University of Washington professors on the privacy implications of Google’s book project in which the authors write, “the fundamental goal of the American public library has for more than a century been to support the freedom of inquiry, and thereby the freedom of expression, necessary to the functioning of a free society.” Certainly, reader privacy protections are needed in the Partner program as well as additional safeguards so that Google does not push the limits on tracking and data mining the sensitive information that CDT is concerned about.
In striking contrast, Google’s primary goal is the monetization of, in this case, readers’ personal information – a goal that is fundamentally incompatible with the privacy that is required to maintain the ability of people to read what they want, when they want to without fear of reprisal or exposure.
In February, we ended our post with a quote from the paper written by the UW professors – we think that it’s worth doing so again:
“By stripping away many of the traditional safeguards on reader privacy— whether legal, ethical, or situational—shifting free-of-charge, publicly available reading from libraries to Google Books complicates the capacity of the context to support truly unfettered inquiry and knowledge diffusion. For all the reasons already noted—controversial interests, the ability of reading material to reveal other things about the reader, or pure embarrassment—a lack of privacy with regard to the selection of reading materials can significantly chill individuals’ desire and/or ability to explore as broadly as they might wish.”
Judge Chin’s Tuesday rejection of the GBS was exceptionally thorough and detailed. The OBA applauds judge Chin, the DOJ and many State Attorneys General for their role in holding Google to the same standards as other companies and organizations.
The OBA has long opposed the settlement because it allowed Google to operate outside the law and ultimately increase its dominance in the online search market.
A selection of key findings from Judge Chin’s ruling back the OBA’s concerns along with those raised by consumer advocates, librarians, authors and publishers. The Court’s rejection of the Google Book Settlement is a victory for the public interest and for competition in the literary and Internet ecosystems.
The following selection of quotes from Judge Chin’s decision reflect on some of the key arguments that GBS objectors have raised over the past two years.
On Google’s control over the search market:
“Google’s ability to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.”
“The ASA would arguably give Google control over the search market.”
On anti-trust concerns:
“The ASA would give Google a de facto monopoly over unclaimed works. Only Google has engaged in the copying of books en masse without copyright permission.”
On privacy concerns:
“The privacy concerns are real.”
On the appropriation of private property without permission:
“Class members would be giving up certain property rights in their creative works, and they would be deemed – by their silence — to have granted to Google a license to future use of their copyrighted works.”
“The ASA would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works. And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions.”
“As articulated by the United States, the ASA “is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”
On the impact to competition:
“Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.”
On the undermining of Congressional authority:
“… [T]he establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court.”
“The questions 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.”
In the end, we could hardly have said it better ourselves.
The New York Federal District Court’s rejection of the Google Book Settlement is a victory for the public interest and for competition in the literary and Internet ecosystems. The U.S. Department of Justice and the State Attorneys General who fought to protect consumers and competition should be applauded. Judge Denny Chin’s reasoned and thoughtful analysis was worth the wait.
In his decision, Judge Chin confirmed that the proposed settlement “would give Google a de facto monopoly over unclaimed works” and concluded that the proposed settlement “is not fair, adequate, and reasonable.”
In his conclusion, Judge Chin gave voice to the authors and creators who have long opposed this proposed settlement by urging the parties to consider revising the settlement to an “opt-in” structure. While opt-in is a preferred structure, the Open Book Alliance (OBA) believes it requires complex changes to the proposed settlement and would not address the severe antitrust and privacy problems that the court describes in the decision.
“The ruling ratifies the objections of a diverse cross-section of voices who stood up to Google and its partners – from the Justice Department and State Attorneys General to authors and independent publishers to consumer and privacy advocates and members of the academic and library communities,” said Gary Reback, Counsel to the OBA. “We urge the Justice Department to remain vigilant and continue in its role as a leader in protecting consumers and competition from an entrenched monopoly in online search.”
The Open Book Alliance looks forward to participating in a collaborative process that will focus on developing an open digital public library created to serve the public interest that respects the rights of creators while promoting innovation and competition.
The mass digitization of books promises to bring tremendous value to consumers, libraries, scholars, and students. The Open Book Alliance will work to advance and protect this promise. And, by...More
December 14, 2009
January 28, 2010
Deadline for authors to opt out of the settlement
January 28, 2010
Deadline to file objections and/or amicus briefs
February 4, 2010
Deadline to file notice of intent to appear at Fairness Hearing
February 4, 2010
February 11, 2010
Plaintiffs move for final approval
February 18, 2010
Final Fairness Hearing
March 31, 2011
Deadline to claim Books and Inserts