Betrayal Makes Strange Bedfellows

As the fallout over Google’s net neutrality u-turn continues, more GBS watchers are finding common threads between how the online advertising giant approached its business strategy around books and its decision to cut a deal with Verizon, aka Verooglenet.

Earlier this week, we highlighted Prof. James Grimmelman’s brief but pointed “open letter” to Google.  Today, we are reading with interest Andrew Albanese’s aptly titled article This is Why It’s Hard to Trust Google at Publishers Weekly, who’s been covering the ups and downs of the GBS for quite a while now.  His view is summed up as follows:

“In covering the Google Books settlement I’ve always been struck by how many people seem to deeply distrust Google.  This week, the company gave those critics new ammunition.”

As a Google Book settlement “dis-truster,” we see his point and agree that a community of opposition beyond authors, the Department of Justice and the OBA are beginning to take notice.  Albanese closes the piece this way:

“It’s hard to be upset at corporations for acting like corporations, and what ultimately happens with net neutrality is still in the hands of government. But at the same time, wasn’t Google supposed to be different? Hasn’t Google has pretty much traded on the public’s faith? The Google Book Settlement, for example, was sold almost like a public works project. Yet throughout the settlement debate, critics and opponents of the deal have questioned just how deep Google’s commitment to the public runs. This kind of about-face from Google on net neutrality, and make no mistake, despite Schmidt’s support for what he calls a “public” Internet, this is a major shift, will only add fuel to the fire.

I can already hear the questions: Will the Google books database always be carried on the “public Internet?” Will an upgraded version of the GBS database be offered to premium customers, giving libraries in the well-funded suburbs yet another advantage over libraries in inner cities? If you thought the questions were complex enough for one Internet, Google is now talking about creating another.”

These are serious and even new issues to explore.  While looking at the Verooglenet u-turn’s implications on the GBS debate, a recent press release on the subject caught our eye.  The folks over at the New America Foundation – who have steadfastly promoted the proposed book settlement – had this to say about the Google-Verizon deal soon after media reports began leaking out last week:

“During the 19th century a handful of wealthy industrialists dominated steel, oil refining and railroads; striking agreements to receive favorable terms for the carriage of their goods, while subjecting farmers and competitors to unreasonable and excessive charges.

Now, over a century later, history is in danger of repeating itself. After weeks of closed-door meetings sanctioned by the Federal Communication Commission, two of the largest corporations in the communications industry have reportedly negotiated an agreement on network neutrality. Though details of the agreement are not available, its terms are immaterial. It should not be the policy of the FCC to allow the largest companies to write the regulations that will determine the future of the Internet.”

Of course, one of the unnamed corporations is Google – whose CEO Eric Schmidt sits on the Board of the New America Foundation.  We found their allegory to the robber barrons of old reminiscent of the laying out our case against the books settlement:

“In 1871, three powerful railroads secretly approached John D. Rockefeller, proposing an audacious scheme.  The railroads wanted Rockefeller to transport oil over their lines.  More than that, the railroads needed to suppress cutthroat competition among themselves, to raise prices to customers and to protect their markets against new competitive innovations. So the railroads secretly proposed that Rockefeller act as their “evener,” to ensure a stable market division among them.  Through Rockefeller, the three railroads consolidated their market positions and insulated themselves from the rigors of competition.

In aid of their own business interests, the railroads dramatically increased Rockefeller’s market power.  The railroads secretly proposed rate increases to Rockefeller’s competitors and provided hidden rebates to Rockefeller’s own company, making Rockefeller “all but omnipotent in oil refining,” according to one biographer.  Rockefeller seized the opportunity.  At the time he was only one of many competitors in the oil refining market.  But he saw that he could dramatically improve his own competitive position by helping to suppress competition in the rail industry.  …

…The parties before this Court have created in the Google Books Settlement their own modern day version of the South Improvement Company.  Google and the plaintiff publishers secretly negotiated for 29 months to produce a horizontal price fixing combination, effected and reinforced by a digital book distribution monopoly.  Their guile has cleared much of the field in the digital book distribution, shielding Google from meaningful competition.”

It’s quite something when the Google-backed New America Foundation is equating Google with Standard Oil in the same way we did in our brief.  As Albanese writes, “…the company gave those critics new ammunition.”  But the real ammunition, as GBS objectors have known all along, is the truth.

Google and the Backroom

Google and Verizon’s shared plans (Verooglenet?) for the Internet have generated a huge volume of stories and comments – many of them from shocked public advocacy groups that are startled by the search giant unveiling another backroom deal.

Longtime GBS watcher James Grimmelman is not too surprised and sees lots of similarity between Google’s Net Neutrality u-turn and their attempts to rewrite copyright law.

In an August 10 blogpost, Grimmelman sent this open letter to the Google books team with tongue firmly in cheek:

Dear Google Books Team (including Dan Clancy):

When you say that Google is committed to orphan works legislation, is that in the same way it’s committed to network neutrality? When you say that reader privacy provisions don’t need to be in the Google Books settlement because Google is committed to protecting reader privacy, is that in the same way it’s committed to network neutrality? I hope you understand why your CEO has created a credibility problem for you, and will explain the matter to him at your earliest convenience.

Best wishes, James

He’s right of course.  In the case of the Verooglenet, Google got tired of listening to stakeholders and interfacing with public officials. When the going got tough (or business priorities changed) they blew off the established process and went their own way.

The same thing happened with the GBS.  What may have started as a good faith effort to share information quickly changed into an undermining of copyright law, reader privacy and the future livelihood of authors.

Instead of respecting the rule of law and traditional processes for changing them, Google has again cut a backroom, sweetheart deal that would benefit their bottom line while presenting the effort as a gift to the public.

Thankfully, Verooglenet is being met by a much more skeptical press than the GBS was.  Hopefully, the media and public will now have a better understanding of why authors, the Justice Department and others have been ringing the alarm bell.

Samuelson Highlights Fundamental Flaws of GBS

One of the leading voices and informed advocates for the public interest in the GBS debate, UC Berkeley law professor Pamela Samuelson, has just published “Google Book Search and the Future of Books in Cyberspace.”

In the piece, she covers the landscape of the current proposed settlement debate and articulately describes the fundamental flaws of the settlement – walking through the “nightmares” that the GBS poses for publishers, library and academic researchers, professional authors, and readers.

The paper also details the legal flaws with the deal, including its monopolistic results:

“…Google will have a de facto exclusive license to commercialize all out-of-print books through the class action settlement; no one else can realistically expect to obtain a comparably broad license to make out-of-print books available in the current legal environment (e.g., in the absence of orphan works legislation that would allow others to scan such books.”

Plus it includes insightful analysis on how this deal fits into Google’s larger business strategy of leveraging its market dominance in search:

“The GBS database is just that: a vast resource of additional data that Google can use to refine its search technologies and further entrench its market dominance in the search market. Yahoo! regards Google’s data advantage from GBS to be unfair because Google would be obtaining its de facto exclusive license to GBS books through a misuse of the class action procedure.”

“No other profitmaking firm will have access to GBS or a comparable database of books to make nondisplay uses that would enable them to make competing translation tools.”

Prof. Samuelson, like many stakeholders, views a public guardian alternative to be a preferred approach that will protect the public interest rather than the private commercial interests of a few:

“It would be socially desirable for there to be a digital corpus of twenty or so million books from major research libraries that would be available through institutional subscriptions at reasonable prices, which would be run by a consortium of nonprofit educational institutions, not by Google or any other for profit firm. This proposal would be desirable regardless of whether the GBS settlement is approved or disapproved. … Development of this corpus should be publicly funded—a kind of Human Genome Project-like initiative—and implemented by the major research libraries themselves working in cooperation with one another.”

We support and echo the views of the U.S. Department of Justice and advocates like Professor Samuelson that have dedicated so much passion and energy to telling the truth about the vast negative consequences of the settlement being approved.

Google’s Austrian Waltz

In short, Google’s book digitization strategy in the U.S. has focused on creating an impenetrable content monopoly that violates copyright laws and builds an unfair and legally insurmountable lead over competitors.

Ironically, last week Google struck a 30 million Euro deal with the government of Austria.   According to reports, Google will digitize 400,000 out-of-copyright books.  Google will not have exclusive use of the scanned books and Austria’s national library will provide access to the books via its own website. It’s disappointing that the stakeholder community here at home wasn’t shown even that level of respect.

After years of criticism from authors, libraries, independent publishers across the globe and even the U.S. Department of Justice, stakeholders held out hope that Google and its partners would have abandoned their go-it-alone approach and engaged the broader community of interests – including Congress – for an approach centered on the public interest.

For months, the Open Book Alliance has been calling for Google to offer a solution that allows for the digitization of books anchored in the principles of an Open Process, Public Guardian and Public Interest.

Now, as we all wait for Judge Chin to release his decision on the GBS, it becomes painfully clear that the parties missed an opportunity to embrace a better solution.  Many observers believe that the flawed settlement won’t be enacted as it’s currently constructed. Perhaps that could be a catalyst towards a collaborative process.

GBS is classcopytrustliphant?

James Grimmelmann, Associate Professor at New York Law School’s Institute for Information Law and Policy has firmly established himself as an expert on the Google Books Settlement.  His blog, The Laboratorium, has provided robust analysis of Google’s lawsuit and the ongoing settlement saga.

In a post yesterday, Professor Grimmelmann has staked out a new frame through which to view the Settlement.  While his final essay is not yet available, he does share the abstract on his blog.  Essentially, he says that the Settlement cannot be viewed through the individual issues it raises.  Instead, the Professor says one must “smoosh” together the issues of class action, copyright, and antitrust in order to fully understand its depth, using an elephant to illustrate his point.

From Grimmelmann’s post:

The genius—some would say the evil genius—of the proposed Google Books settlement is the way it fuses legal categories. The settlement raises important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement is more than the sum of the individual issues it raises. These “issues” are, really just different ways of describing a single, overriding issue of law and policy—a new way to concentrate an intellectual property industry.

The Professor also invents a new adjective to describe the Settlement when properly viewed through his ‘Elphantine’ frame:

Truly pinning down the settlement, however, will require tracing the connections between these different legal areas. I will argue (Part III) that the central truth of the settlement is that it uses an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This statement fuses class action, copyright, and antitrust concerns, as well as a few others. It shows that the settlement is, at heart, a vast concentration of power in Google’s hands, for good or for ill. The settlement is a classcopytrustliphant, and we must strive to see it all at once, in its entirety, in all its majestic and terrifying glory.

Thanks to Professor Grimmelmann for helping bring both clarity and new vocabulary to the confusing world of the Google Books Settlement.

Google and Entrepreneurs: Reading Between the Lines

Google pulled out all the stops today to highlight all the great things they do for small businesses and economic growth.  It’s a nice story idea (and effective diversion from ongoing privacy concerns raised by domestic and international regulators) but we think there are quite a few entrepreneurs who’d disagree.

We’re talking of course about the thousands of small, independent writers whose works have been unilaterally and illegally Hoovered into Google’s data stash.  These are folks that depend on their writing to pay the bills and generate business.

Groups like the American Society of Journalists and Authors and the National Writers Union have fought the proposed settlement specifically because it puts their members’ livelihoods at risk.

So if Google wants to talk about what a great partner they are to small businesses, they should consider the impact on independent authors and publishers and even local libraries.  Or perhaps they could invite the hundreds of authors that signed Ursala Le Guin’s petition opposing the settlement to a fancy briefing.  We’re sure they’d love fancy notebooks and free coffee.

The GBS Makes for Angry Neighbors

Today, the Open Book Alliance released a comprehensive analysis that details how the proposed Google Books Settlement violates international laws and treaties.  A full version of the study can be found here.

Cynthia Arato, partner at the law firm of Macht, Shapiro, Arato and Isseries and a prominent litigator on intellectual property and copyright issues, finds that “numerous provisions of the proposed Google Books settlement would, if approved, violate the treaty obligations of the U.S.  If the settlement is approved, it may give rise to legal action against the U.S. before an international tribunal and will certainly expose the U.S. to diplomatic stress.”

For the first time, the proposed class action settlement between Google, the Association of American Publishers and the Author’s Guild has been fully evaluated to determine the claims and remedies that other nations may seek through the World Trade Organization (WTO) for the violations that an approved Google Books Settlement would incur.

Specifically, Arato found that:

“The settlement would (1) grant Google automatic rights to exploit digitally millions of books without requiring Google to obtain any authorization from any foreign copyright owner or author; and (2) require these foreign rights holders to jump through burdensome hoops simply to exercise a watered-down contractual right – that the settlement creates – to halt such use.”

Foreign nations that wish to challenge the U.S. over treaty violations of the settlement may do so before the World Trade Organization.  Violations can lead to financial penalties or trade sanctions against the U.S.  The governments of France and Germany have already formally objected to the proposed settlement.

But beyond financial penalties and trade disputes, we have to ask ourselves if we’re happy thumbing our nose at the rest of the world for the benefit of one company.  We suggest not.  There are alternatives to the GBS that will benefit a broader audience and welcome international partners’ contributions.

Open collaboration that rejects exclusive deals is the best way to create a true international library.

Searching to Preserve Dominance

A smartly titled post by Devereax Chatillion on the Huffington Post explores Google’s motives for developing exclusive rights to the digital library. Chatillion, an intellectual property partner in the New York office of Sonnenschein Nath & Rosenthal LLP, calls out the search giant for attempting to lock in their search dominance via book scanning:

If the settlement is approved by the Court, Google will be the only search engine that will serve up search results that include the contents of some 5-10 million books — the books whose authors, publishers, copyright holders can’t be found or don’t want to be found. Because of the intersection of copyright and class action law woven together by the proposed settlement, no one else will be able to do that …. It means that Google’s ability to refine its algorithms for search results and its analysis of consumer behavior, interests, and needs will have a depth and a range that no one else can match.

The author is exactly right! The same point was made by the Department of Justice when the spoke of concerns over Google’s “exclusive access” to the book library and laid out in detail by the OBA’s own Gary Reback in his January filing with Judge Chin where he wrote:

Google will get an enormous advantage over its search competitors if it can support (i.e., respond satisfactorily to) tail queries that its competitors cannot.

Google itself has stated multiple times that they’re excited about the value their exclusive digital library will add to their search algorithm.

Later in the Huffington Post piece Chatillion goes further, noting that the benefits go beyond just the exclusive access to scanned books:

Google’s exclusive ability to map these books, and to observe how consumers interact with that map and the content that these books represent, would give Google a significant competitive advantage in the most profitable internet related market in which it is already dominant.

We couldn’t agree more with that or Chantillion’s closing comments that a truly private – and exclusive – digital library is not the way to deliver benefits to the public.

Google’s Shutterbug Stumble

By Peter Brantley

Given that Google is trying to secure an exclusive license to millions of books through a complex legal process in order to further feed their advertising profits, it’s not surprising that their legal troubles continue to mount.  This time it’s a lawsuit from the creative community of photographers and visual artists including:  the American Society of Media Photographers, Graphic Artists Guild, the North American Nature Photography Association, the Professional Photographers of America, and individual photographers and illustrators.

Of particular interest is whether Google’s commercialization of the digital copies of books they have scanned without rightsholder permission extends to the photos, illustrations, maps, and other visual images that appear in those books.  As I tweeted last night:

Wonder if Google utilizes digitized photos from #GBS even if it redacts them, to enhance image search algorithms. captions+images.

And…

An archive of historical images, plus associated captions scanned and ocr’d from books, is a nice data set in its own right #GBS

In response to the Amended Settlement Agreement, new attention was brought by the Open Book Alliance and the Department of Justice to the advantage a corpus of millions of books would give Google in the Internet search market.  This unfair competitive advantage would be compounded by including the images at the heart of this new lawsuit.

In the past two weeks, Google also attracted a new lawsuit from major French publishers, having already been found guilty of copyright infringement in France.  In January, authors groups filed a lawsuit in India alleging copyright violation.

This is in addition to the unprecedented show of opposition to their effort to settle their lawsuit over copyright infringement in the U.S.  That opposition included the United States government, many foreign governments, several U.S. States, authors groups, labor unions, libraries, consumer advocates, and technology companies.

It’s not difficult to envision even more legal action in the coming months.  Scott Moss, an associate professor at the University of Colorado Law School was quoted in the New York Times on this point:

Google is trying to control or expand access to virtually all information in the world.  It isn’t surprising that their settlement with written authors doesn’t end all their legal battles.

With the ever growing legal entanglements surrounding Google’s book business deal, it’s clearer than ever that Congressional action is necessary to prevent a corporate monopoly of our nation’s cultural and literary history.

French publishers to Google….”Non”

According to an article in Bookseller.com, three major French publishers are filing lawsuits against Google for the illegal scanning of their catalogue.

The action comes after extended efforts on the publisher’s part to stop the scanning:

In 2006, Gallimard was the first French publisher to demand that Google withdraw its titles from the US firm’s database. After a pause of six months, Google resumed scanning Gallimard titles and has continued ever since: “We have asked Google for a complete list of our titles it has scanned so far, but have had no reply,” Amor said.

French Culture Minister Frédéric Mitterrand will discuss the issue during a planned trip to Google’s California headquarters in July.

He’s not the first French politician to take on Google.  President Sarkozy reacted negatively to GBS 2.0 in December, stating he would block Google from digitizing “France’s heritage.”