Fairness Hearing Postponed; Judge Chin Cites “Significant Issues…Fair Concerns”

As has been reported elsewhere, Judge Denny Chin granted the plaintiffs’ motion to delay the October 7 fairness hearing in the Google Book Settlement case. This has been seen by many as a clear victory for opponents to the settlement, as it acknowledges that even the parties involve recognize that the settlement, as it’s currently written, is dead, and that any chance for revival requires making serious and fundamental changes.

We were also encouraged by Judge Chin’s choice of language, in which he confirms that there is significant and widespread opposition and concern to the settlement. From his order:

“The current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors. Clearly, fair concerns have been raised.”

The National Writers Union Calls on Authors Guild to Withdraw from the Google Book Settlement

Add the National Writers Union to the growing list of organizations who demand greater transparency and openness in the effort to digitize books.  The NWU, a member of the Open Book Alliance,  called on the Authors Guild to completely withdraw from Google Book Settlement discussions, “…so that they can join in new negotiations with the many voices that have up to now been excluded.”

The NWU rightfully points out that fundamental changes are necessary to the proposed settlement, and that this can only happen with the input of all those who opposed the original deal — including authors, consumer advocates, state AGs, the Justice Department, and Congress.

You can find the entire NWU statement here.

Samuelson: “Version 1.0…is history”

Pamela Samuelson, of UC Berkeley, one of the most influential and knowledgeable voices in this debate, has another informative column today at Huffington Post.

Professor Samuelson hopes Judge Chin urges the litigants to “pay attention to all of the objections, not just to those raised by the DOJ” while walking through some of the reforms suggested by the Justice Dept.  From the piece,

“The GBS deal can’t be fixed by tweaking a few details. Reading through even a sampling of the hundreds of objections to the proposed settlement, one sees an amazingly diverse configuration of opponents and a vast array of problems that cannot be remedied by minor fixes.”

ASJA President: “Back to the Sandbox, With Supervision”

by Salley Shannon, President of the American Society of Journalists and Authors

Google, the Authors Guild and publishers have finally admitted their proposed settlement broke so many laws that expecting the court to rubberstamp it was goofy.  We’re glad they have backed off.

Hundreds of individual writers plus a varied collection of organizations, corporations, foreign governments and foreign writers all had objected, asking the parties to make changes. It took formal intervention by the Department of Justice before the parties would listen.

Now that we have your attention and, we assume, Judge Denny Chin will allow a do-over, please don’t put the second deal together the same way you did the last one.  Let your negotiations be transparent.  Give all stakeholders a seat at the table.  Put aside zealotry.  Doing less will lead only to the embarrassment of another flawed settlement plan.

Seriously, guys!  Don’t make us come out swinging again. I’d rather be writing, and I’m willing to bet all writers would chime in with me there. Same for everybody else. We’re busy people, and we dropped everything to fight you.

Speaking of that fight: the Justice Department brief is measured in tone, but it pulls no punches.  It mentions some 28 ways the settlement plan currently runs counter to the law or skirts it so closely that the DOJ is seriously concerned. Click here to see the Justice filing in full. Among the DOJ issues:

* The settlement is not a legal use of class action.

* There is no need for the proposed new registry, which likely would constrain competition.

* “The registry is effectively controlled by large commercial publishers.”

* The “opt out” provision is upends copyright law. The Justice Department encouraged switching to an “opt in.”

Justice attorneys also scoffed at the idea that Google could possibly have any competition. The parties had insisted it could happen, and even some members of Congress agreed.  All a potential competitor had to do was repeat Google’s violation of copyrights and start scanning books, get sued, then use a  court-ordered settlement to set up their business.

Shame on you. Right up until they caved, the parties were promoting this notion. Since we are writers, copyright infringement tops our list of affronts. But actively promoting lawbreaking and misuse of the justice system isn’t far behind. Everyone who parroted this idea should be ashamed of themselves, not least the folks at “don’t do evil” Google.

ASJA applauds Justice Department attorneys for offering to work with the parties so they can get righteous on anti‑trust, copyright and the requirements for a legitimate class action.  We hope for an outcome that will serve the public good without forgetting this settlement is the outgrowth of Google’s disdain for the law and the rights of many, many individual writers.

Keep that callously made promise to the blind. ASJA lauds giving the visually impaired greater access to books. Now that the possibility has been raised and publicized, we trust you will find a way to do it — without making writers pick up the check by themselves.

Just a few months ago, the Authors Guild was insisting that the text-to-voice feature in the latest Kindle had to be turned off.  After all, book contracts generally have a clause in them governing book recordings and their revenues.

We writers are kindly folks but most of us don’t make a lot of money, unlike the lawyers who were scrambling to keep their wretched settlement alive. Put the cost of keeping this promise on their tab, please.  Or Google’s.

Opt for an “opt in.” We urge all parties to take the advice of the Justice Department to heart, and make the settlement an “opt in,” rather than an “opt out” for writers, in line with copyright law.  Stop mistaking yourselves for the U.S. Congress.  Nice try, but you don’t get to change the law.

Use the Registry we have. We hope the second round will see those paltry little infringement payments to writers sent via the Authors Registry, which the Authors Guild and ASJA helped found in 1995. It has a track record for finding writers and sending checks along, and wide industry participation. ASJA never saw the need for a massive, new bureaucracy.  Now the Justice Department agrees it is unnecessary and unwarranted.

The Money. We’d love to see writers get more of the settlement money and the lawyers less.  Incidentally. Could you at least make sure we get a little more than they do, overall, in this round?

No “Orphan Book Prize,”please.   We believes orphan book rights should not be Google’s reward for massive copyright infringement and business cunning.

Lately we see that Google sought the rights to orphan books not to open them up to the world, as it maintains.  It is starting a new print‑on‑demand business. The more book copyrights it owns, the greater Google’s business advantage.

Still needed: safeguards. We hope you’ll include ways to make sure reader privacy is protected. We need that, not slogans.  After all, Google yelled “public good!”while stealing our books.  While you’re at it, throw in a public, annual audit and some outside oversight.  If you don’t, we’ll be right back asking the court to make you do both.

One more time: Thanks, Justice Department, for offing to help.  Clearly, these guys don’t belong in the sandbox by themselves.

Victory for the Public Interest – New Process Must Be Open + Transparent

The Open Book Alliance released the following statement in response to the decision by Google and its partners to postpone the October 7th Fairness Hearing and create a new proposed settlement for review:

“When the proposed Google Book Settlement came before the court, hundreds and hundreds of diverse voices raised significant objections, ranging from antitrust to copyright to privacy concerns. Clearly, Google and its partners now agree, that the settlement is dead. And any hope for revival of a settlement will require fundamental reforms. This is a huge victory for all those voices seeking to serve the public interest, protect innovation and promote competition.

“We hope that Google and its partners learn the right lessons from this fiasco and start over in an open and transparent manner.  They must create a robust process that includes input from all stakeholders, including authors, libraries, independent publishers, consumer advocates, state Attorneys General, the Justice Department, and Congress.  This opportunity cannot turn into another negotiation behind closed doors.  

“The promise of the mass digitization of books is too important to be left to another round of secret negotiations, and that promise must be realized through an open and transparent process.”

Breaking: Google Book Settlement Hearing Is Postponed

News is spreading fast that Google and its partners have filed a motion and a memo asking the Court to postpone the October 7 fairness hearing.

This is a huge victory for the many people and organizations who raised significant concerns that this settlement did not serve the public interest, stifled innovation, and restricted competition. It’s also an enormous loss for Google, which had been saying for months that no changes were necessary to the settlement. Now, that settlement, as we know it, is dead.

More from us later on this…

Today’s Reading…

Library Journal has a nice summary of the DoJ’s filing here, which summarizes the myriad of objections and concerns addressed in the brief. Library Journal also posted an editorial in which they question the wisdom of giving Google exclusive control over the world’s books. From the editorial:

“It is clearly not in the best interest of libraries or the various publics they serve. We call on Judge Chin (and, as [Marybeth] Peters does, on Congress) to throw out the settlement—or at the very least modify and supervise its most pernicious sections—to ensure that the future of digital books, many scanned from libraries that purchased them at significant cost, not be put in the exclusive hands of Google.”

Pamela Samuelson, of UC Berkeley, one of the most influential and knowledgeable voices in this debate, also weighted in with a column in the Huffington Post. 

“One thing is for certain – the proposed Google Book Settlement, as it’s currently written, will not go through.”

by Peter Brantley

Now that we’ve had a chance to review the Justice Department’s filing in more detail, we recognize that one thing is certain – the proposed Google Book Settlement, as it’s currently written, will not go through. Even Google seems to agree with this — after months of fighting against any change to the settlement, they acknowledge that the settlement must be profoundly altered. That’s good news for anyone who wants to protect innovation, competition, and the public interest as we evolve the world of books to the digital age.

The Justice Department thoughtfully raised some very substantive and serious issues in its brief, many of which are the same issues that the Open Book Alliance and others have been talking about for months. In particular, the Justice Department recommends the option of moving from an opt-out to an opt-in for all of the books in the settlement, and it also raises significant antitrust concerns with no roadmap at all for how to resolve them.  In the words of the Justice Department’s brief:

‘As a threshold matter, changing the forward-looking provisions of the current Proposed Settlement applicable to out-of-print rightsholders from an opt-out to an opt-in would address the bulk of the Rule 23 issues raised by the United States.’

‘This de facto exclusivity (at least as to orphan works) appears to create a dangerous probability that only Google would have the ability to market to libraries and other institutions a comprehensive digital-book subscription. The seller of an incomplete database – i.e., one that does not include the millions of orphan works – cannot compete effectively with the seller of a comprehensive product. Foreclosure of newcomers is precisely the kind of competitive effect the Sherman Act is designed to address.’

It would appear that these and the other substantive concerns raised by the Justice Department and other stakeholders set a high bar for Google and their partners to meet.

The Justice Department acknowledges that this case effects the public interest. It’s broader than a typical class action settlement between private parties, and the process going forward must include more voices. Open Book Alliance looks forward to being an active voice among the many stakeholders in future discussions.

Open Book Alliance Statement on Department of Justice Filing in Google Book Settlement Case

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 is pleased with the action taken today by the Department of Justice, which we believe will help to protect the public interest and preserve competition and innovation. Despite Google’s vigorous efforts to convince them otherwise, the Department of Justice recognizes that there are significant problems with terms of the proposed settlement, which is consistent with the concerns voiced with the Court  by hundreds and hundreds of other parties.

“The members of the Open Book Alliance recognize the tremendous value that the mass digitization of books can bring to consumers, libraries, scholars and students. Making books searchable, readable and downloadable promises to unlock huge amounts of our collective cultural knowledge for a broader audience than was ever possible. But, as we’ve noted, this settlement is the wrong way to go about making this promise a reality. The current settlement proposal would stifle innovation and competition in favor of a monopoly over the access, distribution, and pricing of the largest collection of digital books in the world, and would reinforce an already dominant position in search and search advertising.

“While we will continue to study the details of the filing, the Open Book Alliance looks forward to the opportunity to inform the ongoing discussions about how to make the promise of the mass digitization of books a reality.”

New York Library Association on How to Fix the Google Book Settlement

The Open Book Alliance is made up of a wide coalition of librarians, legal scholars, authors, publishers, and technology companies dedicated to countering the proposed Google Book Settlement. From time to time, we will publish posts from members of our group. This one comes from Michael Borges, Executive Director of the New York Library Association.

“As the leader of an organization representing a diverse array of librarians and libraries – including public, k-12 school, college and special  – in New York State, part of the New York Library Association’s mission is to ensure equitable access to the highest quality library and information services. The digitization of books promises to help us in that mission, unlocking a wealth of knowledge for people everywhere. But the Google Book Settlement, as it’s currently written, threatens to break that promise by creating a monopoly that would have sole control over the largest digital database in the world.

“If approved, the settlement would give Google a monopoly on digital rights to orphaned works and other books and create a Books Rights Registry that will set subscription prices to this database of information, unrestrained by competing alternatives.  The public access provisions of the settlement are also inadequate.  The settlement only permits one free Public Access Service (PAS) terminal per public library to view digital works available exclusively through Google. Finally, the patron privacy issues are a huge concern.  There are no guarantees or provisions in the settlement that insure that patron information will not be used or sold by Google or to third parties without permission.  In fact, the ability for Google to use book search data to feed their already sophisticated marketing tools is reason enough for concern.

“A public policy issue of this magnitude should be not be handled in this matter, but by Congress in a deliberative and open format that allows for greater input from concerned parties and the public. Here are some simple steps that could be taken to fix this settlement and improve it for all people, not just the three powerful parties that negotiated it.

“First, the Book Rights Registry should include representatives of the library community and members of the public appointed by Congress to help push against the natural inclination for a monopoly to set prices high. Second, the public access provision should be expanded to include other types of libraries like K-12 school libraries, and all libraries should be protected from predatory pricing. And lastly, Google should be required to commit to a more detailed and stringent privacy policy that at least meets that of libraries around the country when it comes to protecting the privacy of their patrons.”