Third Party Analysis of Revised Google Books Settlement

Today, the Open Book Alliance released an extensive compilation of third party analysis of the revised Google Books Settlement. The wide-ranging consensus from a diverse chorus of voices is that the revised Settlement is barely distinguishable from the original Settlement and far from satisfying the major concerns of the Department of Justice and other objectors.

OVERALL ANALYSIS:

“So I think there are dozens and dozens of issues that were raised by objectors to the settlement agreement that are, in fact, not addressed in this revision” – Pamela Samuelson, Law professor and Director, Berkeley Center for Law & Technology, The University of California, Berkeley, “Berkeley’s Samuelson Still Not Satisfied with Google Books Settlement, Will Urge Judge Not to Approve” (BayNewser), Nov 17, 2009

So, from my standpoint, all of the reasons I had to be concerned about the settlement agreement back in September still apply, and I’m going to be urging the judge not to endorse the settlement in its current state.” – Pamela Samuelson, Law professor and Director, Berkeley Center for Law & Technology, The University of California, Berkeley, “Berkeley’s Samuelson Still Not Satisfied with Google Books Settlement, Will Urge Judge Not to Approve” (BayNewser), Nov 17, 2009

“I’m sure there will be much more to say about the amended settlement in the days, weeks, and months to come. My instant reaction is that it makes a number of meaningful, if modest, improvements, but leaves unaddressed the central issue that led me to worry about the settlement in the first place.” James Grimmelmann, Professor, New York Law School (Laboratorium Blog), November 14, 2009

“National Council did not see the amended settlement agreement before it became public; however we were able to review a list of proposed changes. After discussion we concluded that the Writers’ Union was unable to provide the requested endorsement before yesterday’s filing of the amended agreement and application for preliminary approval. We also concluded that we would not be able to assist the Authors Guild in finding an author to be the class representative of Canadian authors.” – The Writers Union of Canada Letter to Members

“The revised settlement proposal does nothing to fix these problems.” – David Wood, Legal Counsel, Initiative for a Competitive Online Marketplace (ICOMP), “Revised Google Book search deal ‘a massive disappointment’” (ComputerWeekly.com), November 17, 2009

Continuing Anti-trust Concerns:

“For the millions of volumes of orphan books that Google has already scanned in, they can offer those without risk of anyone coming forward and suing them for infringement,” – John Simpson, Consumer Advocate, Consumer Watchdog, “Antitrust concerns linger in Google Books deal” (CNET), November 16, 2009

“We have to have universal access to everything, just like a library. Do we want that under a single corporation’s control? It is openness, not corporate control, that propels capitalism.” Google, a onetime ally, is “a company run by lawyers, always out to see what they can get away with. We need more choice and competition than they want.” – Brewster Kahle, Internet Archive, “Ideas & Opinions” (Forbes), November 16, 2009

While foreign, non-Anglophone books had been taken out and the parties had made some tweaks here and there, the “heart of the settlement’s promise, peril, and problems has always been its treatment of unclaimed works—a category that contains the orphan works. Settlement 1.0 allowed Google to use and sell them on an opt-out basis, and Settlement 2.0 does the same. That gave Google exclusive access to a market segment that no one else can enter, and thus raised antitrust concerns.” – James Grimmelmann, Professor, New York Law School, “Most foreign language books out; showdown coming with Department of Justice about orphan works?” (Library Journal), November 11, 2009

“By carrying over the same language for the UWF, Settlement 2.0 confirms that Google will have the only game in town for the unclaimed works.” James Grimmelmann, Professor, New York Law School (Laboratorium Blog) November 14, 2009

“The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation.” – James Grimmelmann, Professor, New York Law School, “Most foreign language books out; showdown coming with Department of Justice about orphan works?” (Library Journal), November 11, 2009

“It’s a fine line. The book settlement is a perfect example of where there is clearly potential good for the public in this, but there is also potential for (Google) to have market power to dominate a particular activity on the web.” – Mark Cooper, Consumer Federation of America, “Google makes concessions in latest court filing” (Washington Post), November 16, 2009

“The revised agreement creates a new unclaimed works fiduciary but does so in incomplete fashion.  The UWF takes over some of the registry’s responsibilities rather than acting as a true fiduciary for orphan works holders.  Such a fiduciary would be situated to license the orphan works to third parties on a going forward basis.  That would have been an elegant solution to the competitive issues raised by the current plan to grant a license to the orphan works to Google and only to Google.  The revised settlement makes real progress on these issues only to stop short of a visible and attainable real solution.” Randal C. Picker, University of Chicago Law School, Olin Working Paper #499

“Money aside, Google will still hold an effective monopoly over scanning and marketing of orphan books.  GBS 2.0 provides for appointment of an “Unclaimed Works Fiduciary” who will have some authority to supervise the licensing of orphans.  The UWF plan looks good on paper, but James Grimmelmann has scrutinized the language and discerned that the fiduciary’s powers are either illusory (my word) or merely a continuation of the exclusive control of orphans that was part of GBS 1.0 and led to many of the antitrust challenges. “ – Kenneth Crews, Director of the Copyright Advisory Office, Columbia University, “GBS 2.0: The New Google Books (Proposed) Settlement” (www.copyright.columbia.edu), November 17, 2009

“ICOMP, like many others, objected to the original settlement proposal because it would have granted Google de facto exclusive rights for the digital distribution of millions of orphan works as well as many other books. It also would have given Google a virtual monopoly over the ability to search books online, further strengthening its dominant position in online search and search advertising.” – David Wood, Legal Counsel, Initiative for a Competitive Online Marketplace (ICOMP), “Revised Google Book search deal ‘a massive disappointment’” (ComputerWeekly.com), November 17, 2009

FATE OF UNCLAIMED/Orphan Works:

“Nobody should get a license to orphans without congressional action. This is a legislative matter — you shouldn’t use a class action for that.” – Pamela Samuelson, Law professor and Director, Berkeley Center for Law & Technology, The University of California, Berkeley, “The Google-Books Settlement: A Lawsuit Ripe for . . . Congress?” (WSJ: Law Blog), November 17, 2009

“Given that everyone is so positive that you CAN find rights holders for most of these unclaimed works, why not go out and find them first, then ask if they want to be included. Surely the settlement can generate enough money from books with known authors to fund that without having to include these books at the outset?” – Danny Sullivan, Editor-in-Chief, Search Engine Land, “Antitrust concerns linger in Google Books deal” (CNET), November 16, 2009

“The Registry is trying to lay claim and charge for, monetize, works that have never been claimed and this is what causes the whole thing to be broken,” – Brewster Kahle, Internet Archive, “Antitrust concerns linger in Google Books deal” (CNET), November 16, 2009

“Substantively, the new settlement bears a great resemblance to the old one. There’s a large number of changes (which are conveniently marked up in a downloadable file available from the settlement site here), but while they chip away at some of the rough edges of the earlier proposed settlement, the core of our antitrust concerns seems to remain.

That main concern is that Google should not be the sole entity able to license the display of orphan and unclaimed works. Nothing in the new settlement agreement seems to change that dynamic.” – Sherwin Siy, Public Knowledge, “The New Google Book Settlement: First Impressions on Orphan Works” (publicknowledge.org), November 17, 2009

Copyright Infringement CONCERNS:

“The proposed revised settlement of the Google Books copyright infringement lawsuit fails to address the concerns of several writers’ organizations and many American writers, and allows Google to get away with violating writers’ constitutionally protected rights. While the new proposal might appear to answer some objections, it still offers American writers a pittance for their already-scanned books, still requires writers to ‘opt out’ of the Google Books program, and still interferes with author-publisher contractual relationships,”.- Larry Goldbetter, President, National Writers Union, “Revised Google Deal Still Disses Writers NWU Says” (nwu.org), November 16, 2009

“It’s a very complex issue but I’m against this because I feel that copyright laws have stood us in good stead for a long time. I don’t understand why we are allowing a really big company to overturn them without discussion. I think it’s fascinating though. We are at a complete change. If a Kindle becomes a thing of beauty like an iPhone we may have to rethink.” – Anthony Cheetham, Director, Atlantic Books, UK, “Google opens new chapter as millions of books go into its online library” (The Times), November 17, 2009

COMPLETE LACK OF Privacy:

“Google is poised to radically expand its book service, monitoring the digital books you search, the pages you read, how long you spend on various pages, and even what you write down in the margins. Google could then combine your reading habits with other information it has about you from other Google services, creating a massive “digital dossier” about you, your interests, and your concerns. With numerous reports of government efforts to compel online and offline booksellers to turn over records about readers, the time is now for Google to pledge to protect reader privacy.” – Cindy Cohn, Electronic Frontier Foundation, “Don’t Let Google Close the Book on Reader Privacy” (Electronic Frontier Foundation), November 14, 2009

ABUSE OF Class Action PROCESS:

“Suppose, on the other hand, that Congress does act, blesses the Registry, and creates a statutory licensing system operated by the UWF. That would be a reasonable outcome. It would create legitimate, competitive, compensated access to orphan books. But if the whole thing depends on Congress, why do we need the class action?” – James Grimmelmann, Professor, New York Law School (Laboratorium Blog), November 14, 2009

CONTINUING Foreign COMPLAINTS:

The proposals “do not mark any progress on the essential question of non-English language works pirated by Google. The SNE is maintaining its position by asking Google to respect the essential principle of prior consent by authors and publishers for use of their works.” – SNE French Publishers Association, (AFP), November 19, 2009

“Just because they are taken out of the agreement doesn’t mean Google will stop scanning their books. Google has already scanned many of their books.” – Pamela Samuelson, Law professor and Director, Berkeley Center for Law & Technology, The University of California, Berkeley, “Antitrust concerns linger in Google Books deal” (CNET), November 16, 2009

“Although some European works will technically now fall outside the scope of the settlement, Google appears intent to continue copying and engaging in “snippet” display of copyrighted European works through its existing arrangements with American libraries. To say the least, the revised settlement is a massive disappointment.” – David Wood, Legal Counsel, Initiative for a Competitive Online Marketplace (ICOMP), “Revised Google Book search deal ‘a massive disappointment’” (ComputerWeekly.com), November 17, 2009

“We should be extremely cautious about ceding rights to any organisation in this sort of default manner.” – Anthony Cheetham, Director, Atlantic Books, UK, “Google opens new chapter as millions of books go into its online library” (The Times), November 17, 2009

“It is clear that Google’s pricing in the US will also have a strong influence on the pricing of any similar digital library project that emerges in Europe.” – David Wood, Legal Counsel, Initiative for a Competitive Online Marketplace (ICOMP), “Revised Google Book search deal ‘a massive disappointment’” (ComputerWeekly.com), November 17, 2009