Opposition Pours In

This week was the perfect storm for opponents of the revised GBS with condemnation raining down on the flawed book grab from around the globe.

Thursday was the last day for public filings in opposition to the settlement and there was no shortage of opponents or different takes on why the GBS was destructive, unfair and beyond salvation.

Consumer groups were especially active with comments filed from Public Knowledge and Consumer Watchdog.  In its brief, Consumer Watchdog noted that not only is the settlement an unconstitutional attempt to revise copyright law, but it also continues to award Google an unlawful and anti-competitive monopoly.

From the author’s camp, filings were delivered to Judge Chin from the Science Fiction and Fantasy Writers of America and American Society of Journalists and Authors, Inc. Noted U.K. author and anti-GBS petition signer Ursula K. Le Guin also shared her case against the revised deal with the court.

And while the revised settlement cut out many non-english writing authors in an attempt to placate international objections to the deal – while also shattering the illusion of the library as being a representation of humanity’s knowledge – another round of objections sprang up from all corners of the globe.  Groups representing Japanese authors and Indian authors joined advocates from Germany, France, Italy and the U.K. in denouncing the plan.

We can only hope that Judge Chin and the settlement parties are listening to this overwhelming and varied outpouring of opposition.

AMENDED GOOGLE BOOKS SETTLEMENT IS A “PALTRY PROPOSAL” THAT DEFIES ANTITRUST LAWS

The Open Book Alliance today formally filed Amicus Curiae in opposition to the proposed settlement between the Authors Guild, Inc., Association of American Publishers, Inc. and Google, Inc.

The OBA filing states,  “The torrent of criticism to the settlement may have produced amendments to the class definition, but it has not affected Google’s conduct one iota…..All in all, little has been accomplished, save from Google’s perspective as it continues to build its lead over competitors.  …The Court’s procedures are ill-suited for resolution of what is now at stake in this matter – rewriting the copyright law, restructuring the publishing industry, and maintaining a competitive search market.”

The proposed Google book settlement is not a philanthropic effort to bring literature into the 21^st century and bridge a literary divide.  In reality, Google is focused on becoming the sole owner of an immense digital library that will improve the company’s advertising-based search business.  This de facto exclusive license will provide Google with an enormous advantage over its search competitors.

The brief explores the market importance of so-called “tail queries” – rare or obscure search requests that are hard to fulfill accurately.  The brief explains how “[d]igital rights to virtually all out-of-print books provide Google with a decisive advantage in responding to tail queries.”  The brief continues, “[i]f Google can deny its search rivals the ability to integrate the same corpus of books, Google’s lead in search will become insurmountable.”

The brief also uncovers “carefully crafted exceptions” inside the settlement regarding the Google Partner Program.  Google has signed “Partner” agreements with thousands of publishers.  Doubtless, many – if not all – of the named publishers in the settlement have their own agreements with Google that will govern the payments they receive from Google, in lieu of the provisions that were negotiated in the settlement for other class members.  The brief states, “…[this] permits the parties to negotiate secret side deals to govern the economic terms of books licensed to Google under the Settlement at any time, even after a court review of the Amended Agreement, effectively evading judicial and public scrutiny…”.

The OBA believes that the proposed settlement threatens to bottleneck the access to and distribution and pricing of the largest, private digital database of books in the world. It would do so by using the class action mechanism to not only redress past harm, but to prospectively shape the future of digital book distribution, display and search.

In the Amicus, the OBA highlights five key reasons why the amended settlement is a “paltry proposal”:

• “Control of the Search Market is Google’s True Goal.” Google Books Director Daniel Clancy has stated that Google did not undertake the book-scanning project in order to make money through digital book sales or library subscriptions.  The court should prevent Google from using the judicial system to bolster its search monopoly.
• “Secret Side Deals Among the Parties Actually Control The Settlement Terms.” Google has signed “Partner” agreements with thousands of publishers.  Doubtless, many – if not all – of the named publishers in the settlement have their own agreements with Google that will govern the payments they receive from Google, in lieu of the provisions that were negotiated in the settlement for other class members.   The terms of partner agreements remain secret.  In addition, publishers can withdraw display rights of books they register.  As a result, notwithstanding the millions and millions of books Google claims it has digitized, the Registry’s corpus may well end up with only a few million volumes.
• “Google’s Anticompetitive Bundling Undermines Competition in Digital Book Distribution.” Google has already undermined competition by giving preference to brands such as Google Maps over competitors like MapQuest.  Concerns abound about the consequences to competition in digital book distribution by augmenting Google’s market power through a judicial grant of access to books that no other competitor can secure.
• “The Amendments Fail to Resolve Antitrust Objections.” The settlement bestows upon Google a de facto exclusive license to millions of books and continues to set a price floor for out-of-print books.  The big publishers continue to look to the settlement to dampen price competition and stabilize prices.
• “The Settlement Fails Even a Rule of Reason Evaluation.” The per se rule, rather than the rule of reason, governs horizontal price fixing schemes embedded into joint ventures. A rule of reason evaluation does not turn solely on increasing output; if it did, every joint venture for the creation of product would pass antitrust scrutiny.

And The Hits Keep Coming…

In the lead up to February’s ruling, we’ve seen an avalanche of objections from authors, unions, academics and foreign governments.  This morning we can add a tidal wave of opposition from India to the list.

In a submission to Judge Chin, Indian authors and publishers, along with the Indian Reprographic Rights Organization (IRRO) and Federation of Indian Publishers (FIP) demanded that Google be forced to uphold the principles that govern copyright law and intellectual property.

“The Google Book Settlement is contrary to every international treaty that governs Copyright laws. Google’s unilateral conduct is a brazen attempt to turn Copyright law on its head, by usurping the exclusive rights of the Copyright holder,” says Siddharth Arya, legal counsel for IRRO.

Beyond an objection to the general disregard shown for copyright holders, the opponents outlined how the ruling impacts audiences far beyond U.S. shores.

The current scope of GBS2.0 is books that are either registered with the United States Copyright Office or published in the UK, Canada and Australia. However, it as much impacts the rest of the world as any author published in the aforementioned countries is included in the settlement. In the current global economy, Indian authors like to see themselves published abroad for higher royalties and better professional services.

Bottom line, the GBS is causing the United States’ international partners to question our commitment to protecting intellectual property.  The opposition is yet another reminder of what a truly disruptive and harmful idea the GBS has become.

Authors Strike Back Against GBS

On January 22, the National Writers Union held its third and final briefing for writers still scratching their heads about the proposed Google Book Settlement. Those unable to attend in person can check out a recording of the event on NWU’s website here.

Just two days earlier, the American Society of Journalists and Authors (ASJA), the National Writers Union (NWU), and the Science Fiction and Fantasy Writers of America (SFWA) and the Internet Society’s New York Chapter (ISOC-NY) jointly sponsored a separate workshop to discuss the implications for writers.  A recording of that event can be found here.

And last week, science fiction author Ursula Le Guin and 365 other authors have announced their intention to petition Judge Chin to ask that the U.S. “be exempted from the settlement”, and that “the principle of copyright, which is directly threatened by the settlement, be honored and upheld in the United States.”

At the Berkley event, noted legal expert, Berkley professor and GBS commentator Pamela Samuelson kicked off the presentation with a fair but succinct recap of the settlement to date and options available to the professional authors gathered in the room.  A good deal of time was spent on untangling the differences between opting out of the deal and objecting.

Beyond these binary choices, the crowd of professional communicators was (not surprisingly) flummoxed when they learned that, even if they did opt out of the settlement, Google would still likely scan their works.  That the onus was on the author to file paperwork and chase after the infringer to remove their books from the database – or rather, move them into a “dark archive” – did not go over well.

Next up was Cindy Cohn, Legal Director for the Electronic Frontier Foundation and its General Council.  Cindy reiterated the reasons why the EFF had become involved in raising questions about the GBS, specifically on issues of user privacy and data retention.

While taking the time to clearly state her belief that a digital library would be a tremendous benefit for people all over the world (a sentiment the OBA agrees with whole heartedly) she expressed concerns about Google’s ability to track users’ reading habits and search history.

It was noted that librarians and bookstore owners have a storied past that includes fighting for patron’s privacy rights.  With a Google-operated global library, the ability to anonymously purchase or browse the book of your choice with the expectation of privacy would become a thing of the past.

Most poignant, however, was the general question of how such a thing could have happened?  How could all the authors in the room, who had never had a conversation with Google, now find themselves beholden to an agreement they were not part of and had no role in negotiating.

That Google had circumvented the normal policymaking channels and used the class action process to negotiate an exclusive deal was both frustrating and incomprehensible to the audience.

They are right to be upset.

Harvard Professor Lessig Calls GBS 2.0 “Path to Insanity”

As the January 28 deadline for GBS 2.0 public comment period quickly approaches, statements from settlement opponents are pouring in.  Today, Harvard Professor Lawrence Lessig wrote an essay in The New Republic that called the settlement a “path to insanity” that will be “culturally asphixiating.”

Lessig believes the settlement bring major copyright questions to light and calls for an overhaul to copyright law:

The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed. It is the opposite of the old slogan about nuclear power: every bit gets metered, because metering is so cheap. We begin to sell access to knowledge the way we sell access to a movie theater, or a candy store, or a baseball stadium. We create not digital libraries, but digital bookstores: a Barnes & Noble without the Starbucks.

Three Questions with Peter Brantley

OBA co-founder Peter Brantley recently sat down to answer three basic questions on the proposed Google Book Settlement.

1)   What is the proposed settlement such a big deal?

2)   What will the world look like if the proposed settlement is approved?

3)   Is there another way besides Google Book Settlement to deliver on the promise of a digital library while also respecting copyright holder’s rights?

Look for more interviews from copyright experts and digital library advocates in the weeks to come.

Has GBS 2.0 Remedied Department of Justice Objections?

As the January 28 deadline for Google Books Settlement (GBS) 2.0 public comment quickly approaches, it is an excellent time to take a step back and remember the criteria that the Department of Justice (DOJ) will use to judge the quality of the revised settlement.

The DOJ called for several specific requirements including the following:

• Any forward looking business models must not use opt-out, but use opt-in for absent rightsholders
• Foreign rightsholders should be adequately represented
• Author/publisher representatives that are parties to the settlement agreement must be bound by the settlement and not have separate deals
• Funds escrowed from unclaimed works cannot be diverted to other rightsholders
• Book rights registry should have additional obligations to find absent rightsholders to avoid conflicts among class members
• Settlement notice needs to be more robust if broad class is being used
• Settlement cannot allow horizontal pricing agreements by rightsholders
• Settlement cannot create de facto exclusive copyright license for Google
• Settlement cannot rely on additional class action litigation to ensure competition

The Open Book Alliance has thoroughly analyzed GBS 2.0 to see if it was altered to allay the DOJ objections.  While, some cosmetic alterations were made, the substance is still the same: GBS 2.0 imposes a Google monopoly and violates copyright laws and practices.    If GBS 2.0 were a home remodel, Google re-arranged the furniture and changed the drapes but neglected to fix the gaping hole in the roof and the flooding in the basement.

Our nation’s literary heritage should NOT be in the hands of one commercial entity.  The priorities needs to be  openness and access above search, advertising and profits.

Public Guardian Key to Preserving Nation’s Literary Heritage

The Open Book Alliance has been steadfast in its belief that the digitization of books is a seismic change that will help reduce the literary divide in our nation and our world, and open up new ways to more efficiently and thoroughly conduct research.

However, it is critical that the commercialization of books does not trump the benefits of their digitization.  The current Google Book Settlement does just that.

While much debate over the past nine months has focused on the flaws of the Google Books Settlement, it is time that new solutions are proposed.  Amending a flawed settlement is not an answer.  As a result, the Open Book Alliance has drafted the key parameters of a proposed solution and today sent it to leaders in the U.S. Congress and a broad audience of digital book advocates and stakeholders.

The letter clearly outlines the way to fully maximize the potential of the mass digitization of books:

• Open Process: Only an open and deliberative conversation in Congress will appropriately weigh the concerns of all stakeholders and create bright-line laws that apply equally to all consumers, companies and stakeholders.

• Public Guardian: To ensure the widest participation by content holders and greatest public benefit, the digital book database should be entrusted to a neutral, civic, not-for-profit organization. Respected librarians, like Harvard’s Robert Darnton, have suggested a public guardian that is a not for profit or public sector library, such as the Library of Congress.  In a similar vein, the governments of France and the Netherlands have entrusted public institutions with the administration of digital libraries.

• Public Interest: Any successful digitization effort must not be exclusive to a single for-profit company as a result of legal arrangements delivering unfair monopoly.   It also must uphold the rights of authors and copyright.

It is time to start a new inclusive process that engages the broad audience of advocates sharing a passion for the digitization of books, promoting open competition and access to digital books for the widest number of people.

National Writers Union To Hold GBS 2.0 Meetings in NY and SF

The National Writers Union is organizing two public meetings, in New York and in the San Francisco Bay Area, to update local writers on the pros and cons of the revised settlement pending before the courts.

The first of these is in New York City (Wednesday, January 20, 2010, 2 p.m., at 256 W. 38th St., 12th floor) and is a collaborative effort of the NWU, the American Society of Journalists and Authors (ASJA), and the Science Fiction and Fantasy Writers of America (SFWA), three writers groups that oppose the settlement.

In addition to representatives of the three writers’ groups, the tentative speakers list includes New York Law School professor James Grimmelmann, and attorney, author and literary agent Lynn Chu, who served as co-counsel for the NWU, ASJA, and 58 individual authors who objected to the first settlement proposal. A representative of the Authors Guild has also been invited.

The Bay Area forum is in Berkeley, CA (Friday, January 22, 2010, 7 p.m., 2070 Allston Way). Along with Edward Hasbrouck, co-chair of the Book Division of the NWU, invited speakers including U.C. Berkeley law school professor Pamela Samuelson, the initiator of a joint letter to the court by academic authors who object to the settlement, and attorney Cindy Cohn, legal director of the Electronic Frontier Foundation, who represents authors who object to the proposed settlement on privacy grounds.

“All writers need to be fully aware of the settlement’s provisions in order to make informed decisions,” said NWU President Larry Goldbetter. “Writers have a second chance, regardless of whether you received official notice or what you did about the original settlement proposal. This is especially important with the new ‘opt-out’ date set for January 28.”

The Public Option

Economics columnist John Kay explored the future of a digital library in today’s Financial Times comment section.  His ultimate finding…a comprehensive digital library is too important to be entrusted to a closed legal settlement.

Kay writes:

The court case is an unsatisfactory way of deciding an important issue. The principal potential beneficiaries from the rapid extension of digital access – the public and authors struggling to get work published – are not parties to the case. The dispute, and the forum of resolution, is American, but the practical effects will be felt worldwide.

So how can we accomplish the feat without creating a Google monopoly?  Kay, like many others, proposes an open process where non-profit public sector organizations – not advertising companies – hold the keys and protect copyright holders’ valuable works.

What is needed is a public option. The great libraries of the past – from Oxford’s Bodleian Library to Andrew Carnegie’s small town facilities – have made incalculable contributions to scholarship and economic progress. These outcomes were the result of philanthropic and state action, which facilitated private enterprise. Comprehensive digitisation of printed media will cost a few hundred million dollars – large enough to constitute a commercial entry barrier, so the fear of Google is justified – but tiny relative to existing global library budgets, far less the potential economic benefits of wider reading and better scholarship. The debate should move to a larger, more international forum.

The Open Book Alliance couldn’t agree more.  International public opinion is clearly at odds with handing a single company the keys to a digital library.  As we move beyond the exclusive book settlement, we expect John Kay’s call for an independent, non-profit public library to be the ultimate resolution.