The Search Elephant in the Room

Comments in this weekend’s San Jose Mercury News by the head of Google’s book search program put an end to all the high falutin’ statements that the effort is about creating the next digital Library of Alexandria.

“Obviously, we think there is value in search,” Dan Clancy, the Google executive in charge of Book Search, said, “but I think to the extent that any (competitors) feel similarly, they can invest, similarly as we have, in digitalizing books.”

Nice idea Mr. Clancy, except of course, they can’t.  That is the exact issue raised by Google’s competitors.  Google chose to flout copyright law and illegally begin scanning the works of authors.  When caught, they used the legal system as a tool to bypass the legislative process and carve out an exclusive right for digitized books.  Hardly the type of “do no evil” activities we’d like to encourage from others.

In his February 18 testimony before Judge Chin, Andew DeVore an attorney representing folk singer Arlo Guthrie and “Pay it Forward” writer Catherine Ryan Hyde, explored the search issue:

Second, your Honor, this agreement unfairly strips authors of control over and compensation for nondisplay uses of their works.  This, I submit, your Honor, is the elephant in the living room with regard to this case and what the case is really about for Google.  Google admits that this vast database of books is of enormous value for search and its continued dominance in the search market.

Google engineer Dan Clancy has said, “Google’s core business is search and find, so obviously what helps improve Google’s search engine is good for Google.”  Yet this agreement would give Google unfettered, perpetual rights to exploit and profit from nondisplay uses of authors’ works.

Your Honor, we don’t even know what those uses are. They’re undisclosed, they’re unknown, they’re unexamined in discovery by any party, by the Court, or by any author that the settlement agreement would be imposed on around the world. … Yet this agreement would deprive authors of any meaningful right to control or receive any compensation for all such uses and force them to release any claim relating to those uses.

Not surprisingly, improving the bottom line was not a highlight of Sergey Brin’s NYT Op-Ed defending the settlement. And no one can really blame him for that.  Creating a library sounds a lot better than improving the delivery of targeted advertising.

The Department of Justice gets it though.  In their February 4 filing with Judge Chin, the government’s attorneys concluded 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.

We’re happy to see that the truth is catching on.

When Google Attacks

Renowned artist Asaf Hanuka produced a creative and thought provoking piece of art to accompany a thoughtful article in California Lawyer magazine on Google’s increasingly disturbing behavior.

Hanuka chose to depict an epic battle between a voracious Google monster and heroic authors attempting to fight of its rampage.  With an appetite for 1,000 pages an hour we think he just about nailed it.

In the accompanying article Tom McNichol describes the spectacular chain of events that have brought consumer advocates, privacy watchdogs and the U.S. government together in opposition to the growing Google monster.

OBA’s own Gary Reback receives a prominent place in the article noting:

“At least with [the old] Microsoft, you knew where you stood because they were candid about their goals,” Reback reflects. “They thought it was their God-given right to do what they wanted to do, and you could engage the adversary on that basis. But with Google, they really seem to believe that they’re good guys, and that’s how they present themselves.”

McNichol also explores the exceptional audacity and growth of the settlement’s objectives:

To critics, the settlement effectively locked in the ground rules for the emerging digital books market, to Google’s considerable advantage. What initially appeared to be a class action settlement involving a set of aggrieved rights holders became a privately negotiated compulsory license designed to monetize millions of out-of-print works.

The article should be required reading for anyone interested in a succinct overview of the issue. And, as for Hanuka’s Google monster, we plan to frame a copy for our desk to remind us of just what we’re up against.

Sustained Scanning

McMaster University Book Operations Manager Mark Leslie published a thoughtful recap of the ongoing GBS issue in The Mark.

Leslie, an author himself, sums up the opinions of many authors as they wait to hear from Judge Chin.

So, as the back and forth debates continue over the possibility of a single corporate entity gaining a potential monopoly in digitized literature, authors, publishers, and creators continue to watch with baited breath, as confused about what it all means as ever.

What might be even more surprising for those authors waiting and hoping for a ruling that will protect their copyrighted work is that Google continues to scan their books even at this time.

As Google’s personal library continues to grow at more than 1,000 pages an hour, we can all agree that Judge Chin’s forthcoming ruling will be the literary event of the year.

OBA Media Wrap-up

The media went into overdrive today as Judge Chin heard closing arguments in his New York courtroom.  Overall, the message of the day is that a broad and diverse collection of stakeholders have major objections to the GBS.

A late day AP filing summed up the day, noting that Judge Chin:

(Q)uestioned whether Google and lawyers for authors and publishers went too far when they struck a deal that would let the gigantic search engine make money presiding over the world’s largest digital library.

In an earlier story, the Washington Post’s Cecelia Kang provided context for the hearing, writing:

Like Google’s forays into the cellphone, video and map markets, the book project is intended to support the company’s core business — Internet search. The more people come to the Web to search for information, the more money Google can make from online advertising.

“The proposed Google book settlement is not a philanthropic effort to bring literature into the 21st century and bridge a literary divide,” opponents Microsoft, Amazon and library groups wrote in a recent filing through the Open Book Alliance. “This de facto exclusive license will provide Google with an enormous advantage over its search competitors.”

Diane Bartz of Reuters captured a more heated exchange between Judge Chin and Google’s attorneys, writing:

Google counsel Daralyn Durie, who had used the word “evil” to describe discrimination discussed in a class action case cited as a precedent, seemed surprised when Chin shot back at her: “Some might say that copyright infringement is evil.”

Much of today’s action was focused on Google’s standoff with the Department of Justice. Writing for Wired, David Kravits noted that:

The Justice Department claims Google’s proposition turns copyright law on its head and alters the “Copyright Act’s specific delineation of exclusive rights to authors.”

Later in the article, Kravits concludes:

Google — whether envied or vilified — already corners the online search and advertising market. Owning the written word is perhaps a Google trifecta — and maybe more worrisome than a delay to the inevitable online distribution of the world’s literature.

Norman Older of the Library Journal further captured the government’s concerns in a quote attributed to DOJ representative William Cavanaugh Jr.:

“With respect to antitrust issues,” he said briefly, “our investigation is ongoing.” He added, “We continue to investigate the impact on many products, including the search product.”

In other news, OBA’s own Peter Brantly was invited to update listeners and watchers of CNET’s Buzz Out Loud about the status of the GBS, authors’ rights and the post-GBS path towards a true digital library.

Show host Tom Merritt, an author himself, expressed disbelieve that the settlement had been allowed to progress as far as it had.  Check out the first 15 minutes of the show to catch all the incredulous details.

How Many More Books Has Google Scanned Today?

More than 25 groups representing authors, publishers, state Attorneys General, foreign governments, consumer advocates and technology companies have convened in New York City this morning to speak in opposition to the most recent Google Books Settlement at a Fairness Hearing in front of Judge Denny Chin of the United States District Court, Southern District of New York.

The broad array of objectors will cover a wide swath of legal arguments including Constitutional, copyright, class and anti-trust issues.

The OBA believes that Google has achieved a de facto exclusive license that will provide the company with an enormous advantage over its search competitors that was not achieved through the operation of normal market forces, but through Google’s disregard for copyright holders’ rights and the attempt to manipulate the class action process.

This disregard of copyright holders’ rights has led to the scanning of more than 12 million books and growing.   With books scanned by cameras capable of scanning more than 1,000 pages per hour, the Google library is growing exponentially.   Conservative estimates predict that Google will actually scan more than 5,000 books during today’s hearing.

An approved Google Books Settlement would essentially reward Google for flouting U.S. copyright laws for more than three years, while those who respected the law would be severely punished.

Le Guin Speaks Out on Authors’ Rights

I’m afraid an awful lot of writers have not really informed themselves. You know, we tend to be sort of busy doing our writing and sort of feeling that if we belong to a group like Authors Guild or something, that they’ll look after it and sort of see to it that our rights aren’t infringed to the point where we can’t make a living any longer.

That comment came from noted author and GBS objector Ursula Le Guin in her extended interview with the PBS NewsHour Art Beat Blog.

When interviewer Jeffrey Brown asked Le Guin to clarify her opposition to the GBS, she noted:

Because it will allow Google to — actually as the head of our copyright office remarked — to an end run around copyright. It also allows a corporation to kind of re-write the rules such as copyright, which ought to be controlled firmly by the government. You know how Disney got to the government and got them to re-write copyright law to the extent of extending it to 70 years so that Disney could keep Mickey Mouse? That’s what we’ve got to kind of protect, is that corporations should not be allowed to write the rules that protects both writers and readers.

Finally, Le Guin reaffirmed her support of a digital library that will share information.  Just not a library created on Google’s self-interested terms:

And that library, that is my dream too. It should be a public library. It should be the Library of Congress extended through this immense field of digitalizing sort of everything we have, and it’s not just information. It’s art, too. What I write is not information. I write fiction. It doesn’t inform anybody of anything. But it has its value. And it gets forgotten in all this talk about information should be free, you know.

A transcript of the interview can be found here.

Responding to Google’s Request for an Amended Google Books Settlement Approval

The Open Book Alliance and many other objectors, including the U.S. Department of Justice, authors, publishers, academics, libraries and privacy advocates from around the world have collectively made the case for rejection of the amended settlement agreement proposed by Google, the Association of American Publishers and the Authors Guild.

Despite this broad chorus of opposition, Google has offered only cosmetic changes to its amended settlement. The arguments it now offers to defend the amended settlement are the same arguments that have been rejected by the Department of Justice – twice.  Despite the spin from Google’s attorneys, the amended settlement will still offer the search and online advertising giant exclusive access to books it has illegally scanned to the detriment of consumers, authors and competition.

Google’s request also fails to answer concerns from consumer advocacy groups like the Institute for Information Law & Policy who fear that the amended settlement, if approved, would, “set a dangerous precedent for future cases and undermine democratic political processes.”

We continue to wholeheartedly agree with the Department of Justice’s recent characterization of the settlement as, “a bridge too far.”

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.