TeleRead: Bring the E-Books Home

Archive for the ‘Google Book Settlement’ Category

By Paul Biba

According the The Bookseller the China Written Works Copyright Society is urging writers to oppose the Google book settlement. You can find their website, in Chinese, here. The Society has said that it would fight for the authors with legal action if necessary.

According to the Society, 18,000 books from 570 Chinese writers have been scanned and included in the Google archive without permission and it is calling for China’s National Copyright Administration to push the US government on the issue.

By Paul Biba

According to The Bookseller, at the Frankfurt Book Fair one of the settlement’s chief architects said that the books may be removed. The Federation of European Publishers is saying that neither the US Authors Guild nor the Association of American Publishers has the authority to negotiate on behalf of their international counterparts.

Richard Sarnoff, of the AAP, said that the parties to the deal did not anticipate the backlash in Europe and may have to remove European works.

By Paul Biba

The European Commission has adopted a Communication on Copyright in the Knowledge Economy and according to Viviane Reding, the Commissioner in charge of information society and the media will “… seize this opportunity to take the lead and ensure that books digitization takes place on the basis of European copyright law … If we act swiftly, pro-competitive European solutions on books digitization may well be sooner operational than the solutions presently envisaged under the Google Books Settlement in the United States.”

The internal market Commissioner, Charlie McCreevy, agreed with Reding and called for a pan-European system of book registries. You can read more here. This is certainly setting up the mechanism for a conflict with the Google settlement that may have to be resolved through diplomatic means eventually.

By Paul Biba

In another blast at Google from Europe, Angela Merkel, the German Chancellor has said, in a video podcast before the opening of the Frankfurt Book Fair that :

“The German government has a clear position: copyrights have to be protected in the internet,” Merkel said, adding that there were “considerable dangers” for copyright protection in the internet.

Reuters adds the following sentence omitted by The Guardian: “That’s why we reject the scanning in of books without any copyright protection — like Google is doing. The government places a lot of weight on this position on copyrights to protect writers in Germany.”

You can read the full report at The Guardian or at the Reuters link above. In addition, as The Guardian and Reuters also mention, Google has been sued in France by an association of French publishers for violating their French copyrights in the digitization of their books. Substantial damages are requested.

No matter what we may think of the settlement, the international implications of the settlement are growing.

By Paul Biba

I’ve seen a number of comments asking me to explain my opinion on this issue and I guess that I should try to do that again ( I did it earlier but I can’t find it). Remember that I’m a lawyer and that I may come at this from a different viewpoint than many “real” people.

1. This is not the place for a class action settlement: This is my most important objection. Class actions are supposed to be an administrative method of consolidation hundreds, or thousands, of real or potential lawsuits into one for the purpose of relieving the courts of clutter and preventing inconsistent results when thousands of exactly the same issues are tried over and over again. They are often used in consumer product suits. Thousands of consumers get hurt by a defective product and since the issues are exactly the same in each case, just try it once and get it over with. Class actions are not, I repeat not, designed to change the law or make new law. What is being attempted here is to re-write copyright law through the courts and bypass congressional action. This is wrong and is not the purpose for which class action suits were designed. Let Congress do its job, and if it doesn’t I guess that’s tough. (But that’s a whole other issue.)

2. Google is very rich: It makes it easy for them. Do you know how much a suit like this costs? I do. Tens of millions of dollars in legal fees. (In most class action suits the people who benefit the most are the lawyers. You may get your $10 payment, but the lawyers involved get literally millions apiece.) This means that once the settlement is concluded Google will have an effective monopoly because it will only be someone with a very deep pocket that can defend a similar suit. Brin says that if this goes through it will be a “beacon of compromise in case of a similar lawsuit”. This is true, but disingenuous. Once the instant suit is settled it does not apply, in any way, to someone else who wants to digitize books. That means if you or I want to do the same thing we risk exactly the same lawsuit that Google is in the middle of now. The current settlement protects Google and Google only. For Google the cost of defending itself is a drop in the bucket of its cash flow. For you or me, or for any small or medium sized company, the costs of defense are prohibitive and mean, as a practical matter, that Google will be left as the last man standing, unless some other big guy, like Microsoft, wants to run the gauntlet. You can’t tell me that Google hasn’t factored this into their business plan. I would certainly advise a client of this if he came to me. Again, this is what you get when you try to settle an issue like this through a lawsuit as opposed to congressional action. Only the rich come out on top.

The two reasons above are why I’m against the settlement, even though I think the end result is necessary and laudable. It is just the wrong way to go about it.

By Paul Biba

In an Op Ed piece in the New York Times, Sergey Brin, Google co-founder and technology president, goes on for a couple of pages about how great the book settlement is for readers.

He makes the points that books written after 1923 quickly disappear into a black hole and that the vast majority of books ever written are not accessible to anyone but academics. Sergy goes on to point out how dangerous library book storage is, with normal deterioration and fires, floods and other disasters continually destroying them.

He says that, under the settlement, the majority of revenue will flow back to the rights holders and that participation is in no way compulsory. Further, rights holders can set pricing and access rights to their works, or even withdraw them, at any time.

He feels that if the settlement is successful others will follow and it will serve as a plan or precedent for orphan works legislation.

I think a number of his arguments are specious, but it is an important statement of Google’s intentions and should be read in full by anyone interested in the settlement.

By Paul Biba

That’s the premise of an article in Wired Epicenter by Kevin Poulsen. I must admit that I had forgotten about Google’s takeover of Usenet and its eventual abandonment of the archive.

Usenet contains the history of the internet and the rise of technology and Google acquired it in 2001. It morphed the Usenet archive into Google Groups and then combined the archive with Marc Spencer’s own archive of millions of posts. The two archives comprise 700 million articles from 35,000 newsgroups. I remember when this all took place and the excitement of all of us who had been a part of Usenet.

The problem, according to the article, is that the archive is broken. It is almost impossible to do a search, says Poulsen, in the Google Groups archive unless you have a direct link. It seems that Google has sort of lost interest in the archive and is making no efforts to revamp the search function, perhaps because there is no economic incentive to do so. Thus, the archive remains extant, but mostly useless.

The concluding sentence of the article is worth reading, as a caution to the hype that is surrounding the Google book settlement: In the end, then, the rusting shell of Google Groups is a reminder that Google is an advertising company — not a modern-day Library of Alexandria.

Thanks to ResourceShelf for the link.

By Paul Biba

Numerous press sources are reporting that in a hearing today the parties to the settlement said that they will file a revised settlement agreement on November 9, that objections to the changes will be allowed and that the parties hope to have a final hearing in early January.

By Paul Biba

Thanks to Michael Pastore for pointing out this New York Times article by Lewis Hyde, a professor of creative writing at Kenyon College. Professor Hyde quotes Thomas Jefferson:

“Jefferson especially believed that no generation had a right to bind those that followed. “The earth belongs . . . to the living,” he wrote to Madison in 1789; “the dead have neither powers nor right over it.” That being the case, “perpetual monopolies” in arts “ought expressly to be forbidden,” Jefferson’s own suggestion being that copyright run no more than 19 years.”

and Daniel Defoe:

“Daniel Defoe offered a memorable image for the relationship between authors and their work: “A Book is the Author’s Property, ’tis the Child of his Inventions, the Brat of his Brain.” The line comes from an essay Defoe wrote in support of the first-ever copyright act, the 1710 Statute of Anne.”

and James Madison:

“James Madison explained that copyright is best viewed as “a compensation for a benefit actually gained to the community.” There were good reasons, he wrote, to give authors a “temporary monopoly” over their work, “but it ought to be temporary” ”

in an article about the pros and cons of the Google book settlement.

By Paul Biba

Here is an excerpt from a very thoughtful analysis of the settlement by Kenneth Crews of the Columbia University Libraries/Insormation Services Copyright Advisory Office:

The filing is remarkable for its lucid dissection of select issues. It is diplomatic, and it holds out repeated hope for the continued talks among the parties to the case. But clearly the DOJ does not like what it sees. In my reading of the filing, I found my attention drawn to several excerpts that I find especially compelling. Here are a few clips from the document, with my accompanying reflections.

“As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply

This statement is powerful and diplomatically loaded. It states directly that the proposed settlement has not passed the “searching analysis” that ought to be applied. (“Rule 23” is from the Code of Civil Procedure, and it imposes the requirement of fairness in a settlement of a class action lawsuit.) The statement is also a strong hint to the court that it could reject the settlement outright on the policy grounds that Congress should have the lead. In turn, the statement is a signal to Congress that it should not retreat from its role in addressing some of the issues involved in this case..

By Paul Biba

While we reported news of the suit earlier, this is the first time that the actual damages have been specified. More details here.

French group La Martinière has become the first publisher worldwide to sue Google in court, demanding €15m (£13.8m) in damages for copyrighted books digitised by the search engine without permission.

The publisher is also seeking a penalty of €100,000 per day, and €3m for prejudice to its image. The trial opened in France on 24th September and a ruling is expected by 18th December at the latest.

La Martinière, which is backed by French publishers association Syndicat National de l’Edition (SNE) and the French Writers Union, Syndicat des Gens de Lettres, (SGDL) estimates that the search engine has illegally digitised between 6,000 and 9,000 of its titles.

By Paul Biba

With all the negative press that the Google Book settlement receives, it’s important to print the positive as well. This is by Quentin Hardy and appeared on Forbes.com.

I do not often feel a lot of sympathy for large monopolistic corporations, particularly when they have some history of unilateral moves. In the case of Google Books, and all the negative attention it has received over the four years this case has gone on, I might make an exception. …

If Google’s actions seem entirely wrong, consider how we would feel if, in response to all the criticism, Google simply destroyed the 10 million-volume corpus. We would feel an almost irrevocable loss.

By Paul Biba

Wired writer Alexis Madrigal puts the case for Google Books. He is a staff writer at Wired.com, and author of a forthcoming book on the history of green technology. We haven’t heard a lot from the writer’s perspective on this issue, so I am very happy to haver found this article on the Wired Epicenter blog.

The dispute over Google Books continues to rage in the courts and op-ed pages of the country. There are legitimate questions about Google, profit sharing and privacy. But let’s not let the litigation obscure that Google Books provides an unprecedented and irreproducible service to its users

I’m a science writer at Wired.com, but I’m also working on a book about the history of (what we now call) green technology. My book puts a topic front and center that has been hidden in the footnotes of the American energy story. And without Google Books, I’m not sure it would have been possible to write it. At the very least, my contribution to the book world would have been smaller and shallower.

The searchability, accessibility and breadth of the Google Books collection do not just portend some future best-ever digital library. It’s already the best resource for research that exists.

By Paul Biba

Here’s a short interview with Peter, who is the Director of the Bookserver Project at the Archive. I’ve picked out one question and you can find the rest here:

Q. Does this set back the cause of having full-text book content on the web? If Google stops its scanning efforts while this is renegotiated, how much time have we lost? What’s the up side?

No, in fact, I think it reinvigorates it. The efforts of the Open Content Alliance, the Internet Archive, Microsoft, Yahoo!, Google, and hundreds of individual libraries around the world have indicated the strong desire to have digital books online. We are witnessing an explosion of interest in digital content, new and old, and I think the discussions around the settlement provide an opportunity for us to consider how to engender a robust, competitive, and innovative market – and not just here, but in Europe as well.

Technorati Tags:
Google, Google book settlement, Paul Biba, TeleRead, Internet Archive

By Paul Biba

It looks as if Google is in legal trouble in France as well as in the US because of its book digitization.

Another battle between Google and the publishing industry begins today, as a court case taken by France’s Publishers Association and Society of Authors kicks off in Paris.

According to AFP, the plaintiffs are contesting Google’s 2005 campaign to digitise books without the prior authorisation of publishers or authors. The complaint was first filed three years ago.

Herve de la Martiniere, whose eponymous publishing group controls the Seuil publishing house, told the newswire: “We need to be able to deal with Google on a solid legal basis . . . It is unacceptable that someone would arrogantly take your books and digitise them without asking.”

He estimated between 3,000-4,000 works published by his group had been digitised by Google without his consent.

You can find the rest of the story here.

Technorati Tags:
copyright, Europe, France, Google, Google book settlement, Paul Biba, TeleRead

By Paul Biba

Here is an excerpt from Publishing Perspectives’ Liz Bury on how the settlement may affect Europe:

But regardless of the posturing, the fact is that Google has forced Europe to look at its own record on digitization, and it has been found wanting. There is a glaring lack of any commercial rival to Google in book digitization in Europe. Without an alternative to consider, all parties must, at the very least, consider Google’s proposal.

Who else will pay to digitize, for example, the 50% to 70% of collections at the British Library estimated to be orphan works? Or, for that matter, across all of Europe’s libraries, where as much as 90% of all collections may be orphaned or out-of-print? Considering this fact alone, French Prime Minister Francois Fillon this week signaled that he will back a potential deal between Google and the French national library, Bibliothèque Nationale de France.

This may be a hint of things to come: European Commissioners Viviane Reding and Charlie McGreevy, hosts of the Brussels talks, believe that European copyright laws should be reviewed and harmonized across all EC states. A path could yet be smoothed for a European-wide settlement.

A clear policy statement from the EC would do much to push the UK and the continent further into the digital future. What’s more, not only would it pave the way for Google to proceed, but it might also create the opportunity for the creation of a European counterpart, if not a direct competitor to Google, something that could potentially benefit authors, publishers and all interested parties in the long term.

Technorati Tags:
Google book settlement, Paul Biba, TeleRead, Europe

By Paul Biba

Here is an article, in Spanish, from El Pais, which is an overview of how the settlement is being perceived. From a Google translation:

Publishers and booksellers, that depend on trade books, afraid that the emergence of giant will steal business. Antonio Avila, of the Federation of Publishers and Booksellers Guild of Spain, accused Google of violating copyright and the Berne Convention to take the initiative to scan books in America without first consulting the European rightholders. The French representative, from Hachette, reinforced the idea and said that France will go all the way for such an agreement does not affect French books and authors. For publishers, Google’s deal in the U.S. is not applicable in Europe.