Judge Chin’s Ruling By The Numbers

Judge Chin’s Tuesday rejection of the GBS was exceptionally thorough and detailed.  The OBA applauds judge Chin, the DOJ and many State Attorneys General for their role in holding Google to the same standards as other companies and organizations.

The OBA has long opposed the settlement because it allowed Google to operate outside the law and ultimately increase its dominance in the online search market.

A selection of key findings from Judge Chin’s ruling back the OBA’s concerns along with those raised by consumer advocates, librarians, authors and publishers.  The Court’s rejection of the Google Book Settlement is a victory for the public interest and for competition in the literary and Internet ecosystems.

The following selection of quotes from Judge Chin’s decision reflect on some of the key arguments that GBS objectors have raised over the past two years.
On Google’s control over the search market:

“Google’s ability to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.”

“The ASA would arguably give Google control over the search market.”

On anti-trust concerns:

“The ASA would give Google a de facto monopoly over unclaimed works. Only Google has engaged in the copying of books en masse without copyright permission.”

On privacy concerns:

“The privacy concerns are real.”

On the appropriation of private property without permission:

“Class members would be giving up certain property rights in their creative works, and they would be deemed – by their silence — to have granted to Google a license to future use of their copyrighted works.”

“The ASA would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works. And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions.”

“As articulated by the United States, the ASA “is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”

On the impact to competition:

“Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.”

On the undermining of Congressional authority:

“… [T]he establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court.”

“The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.”

In the end, we could hardly have said it better ourselves.

OBA Applauds Rejection of Google Books Settlement

The New York Federal District Court’s rejection of the Google Book Settlement is a victory for the public interest and for competition in the literary and Internet ecosystems.  The U.S. Department of Justice and the State Attorneys General who fought to protect consumers and competition should be applauded.  Judge Denny Chin’s reasoned and thoughtful analysis was worth the wait.

In his decision, Judge Chin confirmed that the proposed settlement “would give Google a de facto monopoly over unclaimed works” and concluded that the proposed settlement “is not fair, adequate, and reasonable.”

In his conclusion, Judge Chin gave voice to the authors and creators who have long opposed this proposed settlement by urging the parties to consider revising the settlement to an “opt-in” structure.  While opt-in is a preferred structure, the Open Book Alliance (OBA) believes it requires complex changes to the proposed settlement and would not address the severe antitrust and privacy problems that the court describes in the decision.

“The ruling ratifies the objections of a diverse cross-section of voices who stood up to Google and its partners – from the Justice Department and State Attorneys General to authors and independent publishers to consumer and privacy advocates and members of the academic and library communities,” said Gary Reback, Counsel to the OBA.  “We urge the Justice Department to remain vigilant and continue in its role as a leader in protecting consumers and competition from an entrenched monopoly in online search.”

The Open Book Alliance looks forward to participating in a collaborative process that will focus on developing an open digital public library created to serve the public interest that respects the rights of creators while promoting innovation and competition.

Where Did All of Google’s Friends Go?

According to Politico, the National Federation of the Blind is asking the Civil Rights Division of the Department of Justice to look into requirements at certain educational schools that students utilize Google products are discriminatory.  As it turns out,  many Google products do not work with applications that are used by blind students to translate text into speech, meaning that blind students are at a disadvantage if they are forced to use Google products.

As we’ve previously noted, all the negotiators of the GBS have left their positions, and over the last 10 days, there have been bipartisan calls from U.S. Senators for investigations into Google’s conduct.  Since Google now appears to be alienating NFB, one of the few third- party supporters of the Google Books Settlement, one has to ask whether Google has any friends left at all?

US Senate to Investigate Google Dominance?

Publishers Weekly posted an article yesterday about Senator Mike Lee’s (R-UT) letter to Senator Herb Kohl (D-WI) who chairs the Senate’s Antitrust Subcommittee in which Senator Lee states:

“Google also gathers an enormous amount of consumer information through its related products and services including Gmail, Google Checkout, Google Books, and Google Web History. . . . The combination of behavioral and personal information enables Google to generate consumer data that is unprecedented in scale and scope. These activities raise serious privacy concerns and may be indicative of an important market that is largely unconstrained by competition. Antitrust enforcement may unlock beneficial competition for the protection of user privacy and avert the need for additional privacy regulation.”

As we have long argued, Google’s book scanning is little more than an attempt to glean more and more personal information about search users that can be monetized through the sale of targeted ads.  And as Senator Lee, who is the highest-ranking Republican on the subcommittee, recognized, Google’s dominance of search (and the book search vertical, if the GBS is approved), is bad for competition and bad for consumers.

It seems as though Chairman Kohl may agree – on the day before Senator Lee sent his letter, Chairman Kohl released a list of the Antitrust Subcommittee’s priorities for the year, including “closely examin[ing] allegations raised by e-commerce websites that compete with Google that they are being treated unfairly in search ranking, and in their ability to purchase search advertising. We also will continue to closely examine the impact of further acquisitions in this sector.”