Video: Gary Reback at D Is For Digitize Conference

Open Book Alliance co-founder and noted antitrust attorney Gary Reback recently appeared at D Is For Digitize, an event hosted by Professor James Grimmelman at New York Law School. His panel, called “A Is For Antitrust”, examined the Google Book Settlement case, and the Department of Justice filing, in the context of whether it violates antitrust regulation.

The New York Law School has posted video of this panel and others on its site. Gary’s 15 minute talk is at the start of this segment. In a short and compelling presentation, Gary summarizes the “old” arguments about why the Google Book Settlement may violate antitrust law, and then moves on to other issues that aren’t getting as much attention — the impact on other markets, such as search; bundling as a way of controlling content that gets to consumers; and the fact that we somehow ended up with just one database of books content, provided by a single vendor.

Gary sums up his presentation with the following point:

“The antitrust issues in this matter are not limited to just display. There are big issues that affect a lot of markets. I think that the antitrust division is now engaged in a wide ranging investigation to calibrate the effect on those other markets. And I think the judge is going to need to give the antitrust division time to complete that investigation.”

Peter Brantley Examines the DoJ’s High Bar for Approval in HuffPo Piece

Here’s a link to the latest Huffington Post column penned by Open Book Alliance co-founder Peter Brantley. In the first of a planned three-part series, Peter takes a close look at the hurdles laid out by the Department of Justice for approval of a Google Books settlement.

This piece examines the fact that the DoJ found significant de facto exclusivity issues with the original settlement. Future columns will take on the opt-out/opt-in and class representation problems.

Open Book Alliance Joins EFF Letter to Judge Chin

The Electronic Frontier Foundation today today sent a letter to the Judge presiding over the Google Book Settlement case, urging him to ensure fairness in the hearing process. The Open Book Alliance was proud to be among many dozens of signatories to the letter.

Open Book Alliance’s position has been that whatever revised settlement Google and its partners unveil on November 9^th, it must be subject to full review and scrutiny by the vast array of voices – authors, academics, consumer advocates, privacy groups, libraries – who have spoken out against the settlement.  The parties should not be allowed to put unreasonable limits on either the substance or time that stakeholders have to comment on the revised proposal, especially one that the DOJ called “one of the most far-reaching class action settlements of which the United States is aware.”

The letter highlights that while the many objectors to the settlement have varying and sometimes different concerns, that we are all disturbed by the attempt by Google and its partners to limit the notice, time, and objections of opponents to the settlement.

In the words of the EFF:

“The Google Book Settlement is simply too important — and too complex — to be rushed through the court approval processes without sufficient opportunity for analysis and comment.”

Introducing “Ask Google” – First Up, “Are You Listening to the DoJ?”

by Peter Brantley

The November 9^th deadline for the submission of a revised book settlement is approaching rapidly. Google, the Authors Guild, and the AAP are presumably holed away in a room somewhere, trying to figure out what changes need to be made to the settlement terms to avoid a repeat of last time.

For those of us on the outside who care deeply about the future of books, but aren’t privy to those discussions, we are left with questions. And so we feel it’s important to put a voice to those questions, in the interest of the consumers, authors, publishers, and academics who could be significantly impacted by the direction this settlement debate takes.

Introducing “Ask Google”, a series of direct and public questions that the Open Book Alliance will ask of the company from time to time, in an effort to shine a light on what has been a closed and secretive process thus far. Our first question is, “Are you listening to the Department of Justice?”

We know how much Google and its partners want to push a settlement through. Yet, the Department of Justice found fundamental flaws in the original settlement, saying, “As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.” The DoJ outlined multiple areas of concern, suggesting that a revised settlement would need to include major changes in order to pass muster. But Google and its partners continue to suggest that any changes they make will be nothing more than minor amendments, with Eric Schmidt of Google saying, “We don’t want to change it unless we need to,” and Paul Aiken of Authors Guild saying, “The basic deal is not changing.”

Here’s just a sample of what the DoJ said in its brief about the settlement vs. what Google and its partners are saying right now.

Stay tuned…over the next few weeks, the Open Book Alliance will be coming up with more questions to Ask Google.

Pam Samuelson on Google Books: It’s Not A Library

Pam Samuelson, UC Berkeley Professor of Law and one of the most respected and cogent voices in the Google Books debate, published a response on Huffington Post to to the New York Times op-ed column by Google’s Sergey Brin.  Samuelson helpfully points out that Brin’s self-made comparison of his company’s efforts to that of famed ancient library of Alexandria are laughable at best.

Samuelson pokes several holes in Brin’s specious argument, including:

• The Google Book initiative is a for-profit commercial effort, unlike Alexandria or public libraries;
• Library associations themselves are lining up in opposition to the settlement out of fear of price gouging coming from Google and the proposed Book Rights Registry;
• The settlement would eliminate the fair use defense and make it realistically impossible for any competitor to do what Google has done;
• There is a major gap between traditional libraries’ policies on patron privacy vs. what Google has committed to. In fact, Google has opened the door to the possibility of serving ads next to search results for even the institutional subscriptions that research libraries would be forced to buy.

Samuelson’s piece is a great read that should raise significant questions whenever Google professes its desire to create the great 21st century digital library.

It Doesn’t Add Up

One thing that clearly came out of the October 7^th court hearing was that the concerns raised by the Department of Justice alone would require substantial changes to be made to the proposed book settlement by the parties.

But it has quickly become apparent that Google, the Authors Guild, and the AAP have very little interest in addressing any of those concerns raised by the public and undertaking a substantial and fundamental revision of the settlement. Instead, they going out of their way to state that only minor, cosmetic changes, if that, are needed to the settlement.

Below is a he-said/she-said summary of the contradictions between the DoJ’s take on the settlement, and those of Google and its partners.

The bottom line is this: there is a clear directive from the Department of Justice and other stakeholders like public interest organizations, library associations, privacy advocates and leading academics, to go back to the drawing board. Google and its partners say they want to get this settlement approved in a way that benefits the public good. But they aren’t willing to make the fundamental changes needed to do so.

It doesn’t add up.

Department of Justice: “Nonetheless, the breadth of the Proposed Settlement – especially the forward-looking business arrangements it seeks to create – raises significant legal concerns.”

Richard Sarnoff, former chairman of the Association of American Publishers and co-chairman of the American unit of Bertelsmann, the parent company of Random House, on whether the amendments would be minor or more significant — “may be in the eye of the beholder.”

Department of Justice: “As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.”

Paul Aiken, Author’s Guild: “The basic deal is not changing.”

Department of Justice: “This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws.”

Eric Schmidt, Google: “We don’t want to change it unless we need to.”

Department of Justice: “Nor is it reasonable to think that a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reason to think history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation as a means of obtaining approval for licensing provisions that could not otherwise be negotiated lawfully.”

Eric Schmidt, Google: “It is possible for another company to do what we are doing.”

Sergey Brin, Google: “The companies complaining now…there would be nothing stopping them from achieving the same thing.”

Google’s Dan Clancy Opens Door to Ads on Institutional Subscriptions of Corpus?

A new, or at least largely overlooked, wrinkle just emerged earlier today at the D for Digitize conference in New York, which is being hosted by James Grimmelman to discuss the state of the Google Book Settlement.

Dan Clancy, engineering director for Google Books, apparently opened the door to the possibility of Google including ads on the institutional subscriptions they propose to sell to libraries.  He was responding to keynote panelist Pam Samuelson, who passionately took issue with yet  another revenue stream exclusively protected for Google in the settlement.  Prof. Samuelson had recently heard that the institutional subscriptions sold to research libraries would come along with advertising.  In her view, this would totally change the research experience for the academic community and is a prime example of why there needs to be more public debate about the specific details of the settlement.

Clancy did not rule out this approach, despite being given the opportunity to do so. “If we do..”, he stated, “…we would talk to…” subscription customers about an arrangement where customers would get a discounted subscription that comes with ads or pay more for no ads. When pressed by Samuelson, Clancy indicated that while Google would talk to the research library customers about these arrangements, they were not expecting to talk to the academic, research and student communities who would use the service – and be served the ads, based of course on what they were reading.

As far as we know, this is the first time this possible revenue stream has been talked about so openly, despite the months of discussions on the matter. All the more reason to have a serious and open debate about the ramifications and details of a revised settlement proposal. Who knows what else Google might be planning to do should it get a new settlement approved?

“Beacon of Compromise” Attempts to Blind Reality

We read with great interest today’s New York Times op-ed column by Google’s Sergey Brin.  Brin argues that Google is doing the world a favor by making our cultural heritage, as it exists in books, available digitally.

In fact, the settlement that Brin trumpets as a “beacon of compromise” ultimately benefits Google and its partners, at the expense of people everywhere.

As the Open Book Alliance has said consistently, we applaud the idea of making books searchable, readable, and downloadable. The digitization of books has the potential to unlock huge volumes of our shared cultural knowledge.

But there is a right way and a wrong way to accomplish this goal. And the proposed Google Book Settlement is clearly the wrong way. This is not just us and hundreds of other groups saying this; the Department of Justice has made it clear that the settlement does not pass muster.

Interestingly, Google and its partners acknowledged as much when they took the original settlement off the table. Now it appears that Brin and Google’s partners are saying that the previous settlement proposal was just fine, that there will be no fundamental changes that address any of the myriad significant concerns.

When Brin states that “In reality, nothing in this agreement precludes any other company or organization from pursuing their own similar effort,” he is either forgetting or blatantly disregarding the Department of Justice’s opinion on the subject. From DoJ’s brief:

“Nor is it reasonable to think that a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reason to think history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation as a means of obtaining approval for licensing provisions that could not otherwise be negotiated lawfully.”

What we can take from Brin’s column today, and other statements by Google and its partners, is that they have no intention of addressing or correcting any of the fundamental flaws found in their initial settlement agreement. Which lends credence to the belief that Google isn’t in this for the public good, but rather for its own private interests. And if you don’t agree with our assessment, you can take it directly from Google itself:

“We are not scanning all those books to be read by people …. We are scanning them to be read by [our] AI.”

–Google Engineer, quoted in Nicholas Carr, The Big Switch: Rewiring the World From Edison To Google (2008)

Brewster Kahle: Google’s Twisted Logic on Orphan Books

Yesterday, Google’s Sergey Brin and Eric Schmidt were in New York City, holding court with a handful of reporters on all things Google. The issue of Google Books came up quickly, and of course, they had a lot to say about the topic.

In particular, Brin made some outlandish claims about orphan books, including the assertion that “the companies that are making objections about out of print books are doing nothing for out of print books…”.

This caught the attention of Brewster Kahle, the co-founder of the Internet Archive (which is a member of the Open Book Alliance.) Unsurprisingly, Brewster took umbrage with this latest salvo of nonsense from Google, and penned a response on the Open Content Alliance blog.

In Brewster’s words…

“There are around 400 objections to the settlement objecting to Google’s treatment of out-of-print books– companies, libraries and even countries. And many of us are objecting because we have been working together for years on the mass scanning of out-of-print books– and have worked to get books online for far longer than Google– and Google’s “settlement” could hurt our efforts. A major part of our efforts have concentrated on changing the law so everyone would benefit.

“The Internet Archive’s effort to free “orphan works” (a name that I coined in the books context for when the rightsowner is unknown or does not negotiate for use of the work), had been an active project for years before Google announced they were scanning library books. As early as 2002 the Archive was participating in the Million Books project when we acquired a hundred thousand books for scanning. Because many of these books wound up being orphans, their digitization was partial and significantly delayed. Today, the Million Books project holds over 1.4 million books that have been scanned at public expense, but are not publicly viewable because of the lack of clarity on orphan works.”

Statement on October 7 Court Hearing in Google Book Settlement Case

The Open Book Alliance today issued the following statement from co-founder Peter Brantley in response to today’s U.S. District Court hearing on the Google Book Settlement case:

“Based on the court hearing today, one thing is clear — whatever revised settlement Google and its partners unveil on November 9th must be subject to full review and scrutiny by the vast array of stakeholders – authors, academics, consumer advocates, privacy groups, libraries, and others – who have spoken out.  By their own admission, they have taken the deeply flawed original settlement off the table. So, any revisions to the settlement that would resolve the flaws identified by the Department of Justice and other objectors must be fundamental in scope. This is inconsistent with the timeline they proposed. This is not the time for shortcuts.

“It’s also clear that the settlement partners have zero interest in creating an open process that takes input from critical stakeholders. Instead, Google and its partners are serving their private business interests and ignoring the public interest. They came to the courtroom without a single concrete recommendation of how they would address any of the problems with the original settlement. Instead, they proposed more of the same — secret, back room negotiations – rather than an open, transparent and collaborative process.”