Motoko Rich, Publishers Win a Bout in E-Book Price Fight, N.Y. Times (Feb. 8, 2010):

Google has been talking about entering the direct e-book market, through a program it calls Google Editions, for nearly a year. But in early discussions with publishers, Google had proposed giving them a 63 percent cut of the suggested retail price, and allowing consumers to print copies of the digital books and cut and paste segments. After Apple unveiled the iPad last month, publishers indicated that Apple would give them 70 percent of the consumer price, which publishers would set.

According to several publishers who have been talking to Google, the book companies had balked at what they saw as Google’s less generous terms, and basically viewed printing and cut-and-paste as deal breakers.

Now that both Apple and Amazon have agreed to terms more to the book companies’ liking, several publishers said that their conversations with Google have taken on a more flexible tone.

These publishers, who requested anonymity because their discussions with Google are confidential, said Google had relaxed its plans to allow customers to print or cut and paste. …

In early negotiations, the 63 percent Google had been offering publishers was based on a wholesale model, but executives briefed on the discussions said that Google was now open to talking about an agency model and was also prepared to discuss paying publishers 70 percent of each sale.

That just raises further questions!

If Google Editions goes to a 70/30 revenue split, will the settlement go there, too?

If Google Editions turns off print and copy/paste, will the settlement turn it off too? (But see § 4.2(a) (Consumer Purchase” will enable purchasers to view, copy/paste and print pages of a Book” (emphasis added)); § 4.1(d))

This, ladies and gentlemen, is why the law is not a proper subject of copyright. I’ve written about this topic before, but I had no idea that the situation could be as bad as it is in Liberia, where one man claims to have a copyright on the only codified copy of the country’s laws. He’s holding out for hundreds of thousands in dollars in what can only be described as “ransom,” leaving courts and the government guessing at what the law actually is.

I’m curious, though, how a country can have a rule of law strong enough to enforce his copyright and yet weak enough to let this happen. I suspect there is more in the way of high-level complicity and corruption than the story lets on. Copyright is the symptom, not the problem.

Good for them; the settlement stinks to high heaven. It would have provided no monetary relief for a class with a strong statutory damages claim. I considered writing a letter to the court, but I had too much else on my plate already (including another class-settlement that’s been taking up a lot of my attention). I’m glad to know that PubCit more than picked up the slack.

The brief itself is available online.

I’m doing research for a paper on privacy on social network sites. (Yes, another one. But short this time.) Along the way, one of the things I’ve done is read closely the comments in which Mark Zuckerberg supposedly declared privacy dead. He made the remarks in a videotaped interview with TechCrunch’s Michael Arrington, which was widely reported at the time. Here are some representative samples:

• Marshall Kirkpatrick, at ReadWriteWeb, uses the headline “Facebook’s Zuckerberg Says The Age of Privacy is Over.”
• Terrence O’Brien, at Switched, uses the headline, “Facebook’s Mark Zuckerberg Claims Privacy Is Dead.”
• Craig Kanalley, at the Huffington Post, writes, “If [Zuckerberg] could go back in time and build Facebook again, he would make profile data public by default.”
• Bobbie Johnson, in the Guardian, writes, “The rise of social networking online means that people no longer have an expectation of privacy, according to [Zuckerberg]. … [He] said that privacy was no longer a ‘social norm.’”
• Steven Holloman, at Associated Content, writes, “‘Make peace with it: no-one cares about privacy anymore!’ - With this line, Facebook founder Mark Zuckerberg justified security holes in this online social network.”

In reality, Zuckerberg said none of these things. Watch the video for yourself. At least the ReadWriteWeb transcript is mostly accurate:

When I got started in my dorm room at Harvard, the question a lot of people asked was ‘why would I want to put any information on the Internet at all? Why would I want to have a website?’

And then in the last 5 or 6 years, blogging has taken off in a huge way and all these different services that have people sharing all this information. People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people. That social norm is just something that has evolved over time.

We view it as our role in the system to constantly be innovating and be updating what our system is to reflect what the current social norms are.

A lot of companies would be trapped by the conventions and their legacies of what they’ve built, doing a privacy change - doing a privacy change for 350 million users is not the kind of thing that a lot of companies would do. But we viewed that as a really important thing, to always keep a beginner’s mind and what would we do if we were starting the company now and we decided that these would be the social norms now and we just went for it.

Zuckerberg never says that privacy is “over” or “dead.” While he says that if he were founding Facebook today, he would use the new privacy settings, he doesn’t talk about going back to 2004 and retroactively using the new settings. He says that social norms have changed, not that privacy isn’t a social norm at all. And he most decidedly never says anything about people not caring about privacy or about needing to “make peace” with this fact.

Facebook’s record on privacy is decidedly mixed. And Zuckerberg’s comments do conflate exogenous shifts in privacy norms with shifts catalyzed by Facebook itself. But beyond that, this man does not deserve the grief the Internets have been giving him over things he didn’t say. I sympathize with the Facebook representative trying to explain that, “His remarks were mischaracterised.” It’s a cliche of the PR trade, but in this case it happens to be true.

Kudos to Sebastian Anthony at Download Squad for calling BS on the reporting at the time.

David Drummond has an editorial in the Guardian, Google: We Will Bring Books Back to Life. It bears a strong resemblance to Sergey Brin’s A Library to Last Forever from the New York Times in October. How strong?

Drummond:

Google’s founders recognised the problem back when Google was just a start-up in the late 1990s. They proposed a project to digitise all the world’s books, but at that time the idea seemed so far-fetched they couldn’t persuade anyone in the company to work on it. It took a further five years before Google Books was born. Today, users can access information contained in more than 10m books.

Brin:

… Larry Page, the co-founder of Google, first proposed that we digitize all books a decade ago, when we were a fledgling startup. At the time, it was viewed as so ambitious and challenging a project that we were unable to attract anyone to work on it. But five years later, in 2004, Google Books (then called Google Print) was born, allowing users to search hundreds of thousands of books. Today, they number over 10 million and counting.

Drummond:

Yet doubts remain, and there is particular concern among authors that they are in danger of handing control of their work to Google. Let me address that concern and dispel some of the myths.

Brin:

There has been some debate about the settlement, and many groups have offered their opinions, both for and against. I would like to take this opportunity to dispel some myths about the agreement and to share why I am proud of this undertaking.

Drummond:

The settlement aims to make access to millions of books available either for a fee or for free, supported by advertisements, with the majority of the revenue flowing back to the rights holders.

Brin:

This agreement aims to make millions of out-of-print but in-copyright books available either for a fee or for free with ad support, with the majority of the revenue flowing back to the rights holders, be they authors or publishers.

Drummond:

The reality is that they can at any time set pricing and access rights for their works or withdraw them from Google Books altogether.

Brin:

The reality is that rights holders can at any time set pricing and access rights for their works or withdraw them from Google Books altogether.

Drummond:

Some have questioned the impact of the agreement on competition, suggesting it will limit consumer choice and hand Google a monopoly. In reality, nothing in this agreement precludes any other organisation from pursuing its own digitisation efforts.

Brin:

Others have questioned the impact of the agreement on competition, or asserted that it would limit consumer choice with respect to out-of-print books. In reality, nothing in this agreement precludes any other company or organization from pursuing their own similar effort.

Drummond:

We wish there were a hundred such services. But despite a number of important projects to date – and Google has helped fund some of them – none has been on the same scale simply because no one else has yet chosen to invest the time and resources required. But if there are to be a hundred services in future, we have to start with one.

Brin:

I wish there were a hundred services with which I could easily look at such a book; it would have saved me a lot of time, and it would have spared Google a tremendous amount of effort. But despite a number of important digitization efforts to date (Google has even helped fund others, including some by the Library of Congress), none have been at a comparable scale, simply because no one else has chosen to invest the requisite resources. At least one such service will have to exist if there are ever to be one hundred.

Drummond:

If we successful, others will follow. And they will have an easier path.

Brin:

If Google Books is successful, others will follow. And they will have an easier path …

He writes:

It is time to find out. There are a staggering number of objections to the ASA. These range from antitrust concerns—more on those in a second—to privacy issues, to how foreign authors and works are treated, and on and on. But we have reached a point in the process where we need to get some sense from Judge Chin on how he sees the scope of the class-action power in copyright. Whether he sees a broad power or a narrow power will determine the path forward.

I think that is exactly right. Yes, anything could happen in the next few weeks, but I agree that the next move is Judge Chin’s. Until now, he has been very hands-off in his case management. He granted the four-month delay, but since then has been trying to keep the case procedurally on track while deferring all substantive rulings. But now, the issues have been framed and sharpened.

Whatever Judge Chin does after the hearing will take heavy lifting. Whether he approves the settlement, rejects it, or pushes for modifications, he’s going to have to commit some of his authority. Any of these routes will require him to reject some positions as legally wrong; particularly if he wants to see the settlement modified, he’ll need to get in the driver’s seat.

That leaves what DOJ labels Google’s de facto exclusivity. I have found that troubling all along as well, but it isn’t clear that there is an internal antitrust remedy for this. The new DOJ statement of interest cites no case law or statutes as authority for its power to resolve this issue. Instead, this seems to be a concern addressed to Judge Chin now should he approve some version of the settlement agreement in which Google gets exclusive authority vis-à-vis the orphan works. As I have argued before, this would be a decision by a governmental actor to grant a single franchise to the orphan works. This takes us back to the scope of the class-action power: if Judge Chin concludes that he has the power to grant a license to the orphan works to Google, does he also have the power to expand that license, perhaps, say, by allowing the unclaimed works fiduciary to license those works on behalf of the orphan works holders?

In a narrow sense, the answer is clearly “no.” Judge Chin can’t do anything on his own. The only way he could expand the license is to reject the settlement, indicate he’d approve it if the parties expanded the license, and wait for them to return with a redrafted settlement. In a larger sense, this issue is only on the table if, pace the Department of Justice, Judge Chin concludes that the class action issues are not a bar to the settlement.

Randy is picking up on something that’s increasingly characterizing my own view of the settlement: it’s very hard to analyze the settlement in terms only of civil procedure, antitrust, or copyright. Looking at it through any one of these lenses seems to miss something critical. There are real issues in these areas, but they aren’t quite debates about the settlement’s essence. Only at the intersection of these three areas does the settlement really come into focus.

Judge Chin has issued his order governing procedures for the conduct of the fairness hearing on February 18.

26 individuals and groups have asked to speak at the hearing. They will be allotted five minutes each. (“The Court urges parties with overlapping concerns to coordinate their remarks to avoid duplication. The Court will also, of course, review all written submissions.”) They will be followed by the United States, and then by the parties.

The hearing will be in Courtroom 23B, where seating will be reserved for those speaking. “Overflow seating will be available in Courtroom 11A, where video of the proceeding will be provided.”

Short post from the Authors Guild reacting to the Justice Department’s filing:

As you may be reading in today’s paper, the Justice Department in its filing regarding our settlement with Google continues to see legal problems with the settlement, focusing on class action law but also continuing to raise some antitrust concerns. We disagree with the Justice Department’s reading of the law. At the same time, it’s good to see the Department recognizes the settlement’s many benefits. In our view, it’s best for everyone that out-of-print library books be made available through reasonable, market-based means to readers, students and scholars. Without a settlement, that won’t happen. It’s also best that authors have direct control of the scans that Google has made, with the power to compel Google to hide, display or remove those scans. Without a settlement, authors have no such control. Google’s scanning and use of authors’ books would continue until the lawsuit was finally resolved. …

We also could’ve won. That would’ve been sweet. But here’s the thing: copyright victories tend to be Pyrrhic in the digital age. Our settlement negotiations went on with full knowledge of what happened to the music industry. The RIAA (the Recording Industry Association of America) won victory after victory, defeating Napster and Grokster with ground-breaking legal rulings. The RIAA also went after countless individuals, chasing down infringement wherever they could track it down.

It didn’t work. The infringement just moved elsewhere, in unpredictable ways. Nothing seems to drive innovation among copyright pirates as much as a defeat in the courts. That innovation didn’t truly abate until Apple came along with its iPod/iTunes model, making music easily and legally available at a reasonable price. By then, the music industry was devastated.

WASHINGTON - The Department of Justice today advised the U.S. District Court for the Southern District of New York that despite the substantial progress reflected in the proposed amended settlement agreement in The Authors Guild Inc. et al. v. Google Inc., class certification, copyright and antitrust issues remain. The department also said that the United States remains committed to working with the parties on issues concerning the scope and content of the settlement. …

The United States has filed a new Statement of Interest. The tone is balanced, but the conclusion is clear: the Department of Justice thinks the settlement is beyond the court’s authority and still problematic on antitrust grounds. It’s a careful, detailed brief, that raises fundamental objections to the settlement. These issues will not be resolved with quick patches, even if the parties were in the mood to revise and resubmit a second time.

The battle has been truly joined.

The opposite of “substantially similar” is not “substantially different.”

This short paper by Russ Cox exemplifies everything I believe about theory. It takes a tool that programmers use all the time—regular expressions, which are the basis of search and replace—and shows how the standard implementation of them can fail badly at many tasks. It then walks through some basic computer science theory to derive a different implementation of regular expressions, one that performs well all the time.

This is a theoretical pearl: the mathematics are simple, well-understood, and provably correct. But it’s also profoundly practical: once you write out the theory carefully, the program follows as a matter of course. The formalism is the program. Sadly, people who ought to know better still get this one wrong.

I write law review articles and legal documents now, rather than programs and computer science papers. But the lesson is the same. Good theory is useful.

For more information, here’s Russ’s overview page, and here’s his follow-up with equally elegant implementation details. I had the pleasure of working with him years ago; he’s also an all-round nice guy and the only Free Electron I know.

Their letter to Attorney General Holder is online. In the words of the press release:

“We don’t want this settlement process to go forward if it will not protect the work of small and minority publishers,” Congressman Green said. “We are asking Attorney General Holder to evaluate the revised settlement that was filed last November, and ensure that the rights of all publishers are represented and protected during the upcoming Fairness Hearing.”

Given that the deadline for the Department of Justice to file its comments on the revised settlement is February 4, and this letter was dated February 1, it’s hard for me to imagine Holder suddenly sitting bolt upright and shouting, “Of course! They’re right! I must scrutinize this settlement closely! To the Holder-mobile!” In fact, given the size and complexity of the settlement and the extensive intra-agency coordination presumably involved in such a big issue, it’s hard to imagine that even the posturing of “Some Congressmen are skeptical about the settlement” could make much of a difference. The filing hasn’t arrived yet, but the drafting must be in its very late stages. We all wait with bated breath.

A very effective indie game, with simple play mechanics and a remarkable sense of ominous terror.

It occurs to me that the 8-bit aesthetic means something very different now than it did when 8-bit was state-of-the-art. Today, it’s s deliberate deign choice, one that embraces constraint in the name of artistic experimentation. Not coincidentally, it also brings the project back within the scope of the realistic for a single inspired auteur—a bit like a student film.

From the Stanford release:

Stanford University has affirmed its support for the recently amended Google Book Search settlement agreement, which is now before a federal court, by expanding its earlier agreement with Google Inc. to digitize its library materials.

Stanford’s expanded agreement, which establishes it as a Fully Participating Library under the terms of the amended settlement agreement, is a milestone in Stanford’s commitment to the program and to the provision of public access to millions of its books.

University Librarian Michael A. Keller said, “We are highly supportive of the amended settlement, which offers an enormous public good, making the full text of millions of books available to the American public.”

Keller added that another effect of the settlement is to respect the rights and prerogatives of authors and publishers at the same time as it increases public access. “The settlement creates a working partnership among authors, publishers, libraries and Google that will usher in a revolutionary change in access to books on library shelves, even beyond the incredibly powerful vision that Google Books first developed. It’s no longer just about finding books of potential interest; it makes them vastly more readily readable. The agreement also compensates authors and publishers for the use of works that, by virtue of being out of print, would not have earned the rightsholders any income – a novel and, for most authors, a most welcome innovation.”

The statement reads:

Philip Agre was located by LA County Sheriff’s Department on January 16, 2010 and is in good health and is self sufficient.

Substantial feature article on the current state of play. If you’re just tuning in now, this article is a good place to start. It may just reflect the news cycle, which was dominated this past week by objectors unveiling their filings, but the general tone is not particularly optimistic on the settlement:

On February 18, the Google Settlement is scheduled to have its long-awaited final fairness hearing in a Manhattan courtroom, although, court-watchers agree, it is unlikely that this next chapter, will be the last. Twice postponed in 2009, the hearing in Judge Denny Chin’s Manhattan courtroom will come after months of legal drama, and a September swoon New York Mets fans might appreciate: thought to be a lock in the spring, by mid-September, 2009, the deal was off the table, amid protests from foreign governments, authors, harsh criticism from U.S. Register of Copyrights Marybeth Peters, and a Department of Justice brief that urged the deal’s rejection.

As the January 28 deadline to object or to opt out passed last week, it’s now clear how steep a climb the amended Google Settlement faces. Opposition has swelled, and if there was any question before, there is little question now: the deal is in jeopardy.

UPDATE: Added the actual link, which I somehow neglected to post the first time around.

Since the question of whether Google’s activities thus far are protected by fair use has come up at some length in the comments, I thought I’d post pointers to some of the extensive academic discussion of the question:

• Jonathan Band, The Long and Winding Road to the Google Books Settlement
• Steven Hetcher, The Half-Fairness of Google’s Plan to Make the World’s Collection of Books Searchable
• Douglas Lichtman, Copyright as Innovation Policy: Google Book Search from a Law and Economics Perspective
• Matthew Sag, The Google Book Settlement And The Fair Use Counterfactual
• Hannibal Travis, Google Book Search and Fair Use: iTunes for Authors, or Napster for Books?
• Siva Vaidhyanathan, The Googlization of Everything and the Future of Copyright

Great deconstruction of the generic conventions of TV news, although the lighthouse keeper unnecessarily breaks the tone.

Restatement (Third) of Torts: Products Liability § 3 cmt. b:

Although the rules in this Section, for the reasons just stated, most often apply to manufacturing defects, occasionally a product design causes the product to malfunction in a manner identical to that which would ordinarily be caused by a manufacturing defect. Thus, an aircraft may inadvertently be designed in such a way that, in new condition and while flying within its intended performance parameters, the wings suddenly and unexpectedly fall off, causing harm.

Although the “inadvertently” is good—suggesting as it does that someone in a moment of weakness got careless and accidentally designed an aircraft—the part that cracks me up is the “causing harm.”

The pace has slowed to a crawl; there are a couple more things that I know are out there that haven’t hit the docket yet, but not much. Here are a few further important and interesting filings:

• The big one is Pamela Samuelson’s objection letter. The perspective is that of academic authors; the argument is extensive and carefully reasoned; the list of signers is impressive. If you have time to read only one filing in detail, make it this one.
• Literary agent Stuart Bernstein filed a letter objection with some further details on the difficulty of claiming and managing Inserts. His agency submitted to the parties a spreadsheet with over five thousand separate licenses for Inserts, but noted this was only a fraction of the total.
• Lewis Hyde and Eric Saltzman have short and clear letters.
• Not everyone is opposed. ProQuest, formerly an objector, has withdrawn its objection.
• The National Federation of the Blind submitted a request to speak that also gives a short and plain statement of its reasons for strongly supporting the settlement.
• Various international trade groups filed letters in support of the settlement: the Association of Canadian Publishers, the Australian Publishers Association, the Canadian Publishers’ Council, the UK Society of Authors, and the UK Publishers Association. The UK Society of Authors may be, correct me if I’m wrong, the first authors’ group other than the Authors Guild itself to come out in favor of the settlement.
• Paulina Borsook’s letter describes her journey from supporting the settlement to opposing it.

Thanks to the hard work of the dedicated team of NYLS students, the Amended Settlement and Responses page at the Public Index is up to date with the complete collection of filings thus far.

Here are some of my picks for the most interesting filings to come in yesterday. This list is far from complete, but these are the ones that I felt most had something new and interesting to say or were most fun to read:

• Amazon’s brief is really hard-hitting. Agree or disagree with its substantive points, you have to admit that this is a superbly executed piece of technical legal advocacy. The highlight is a close discussion of the Reseller program in the amended settlement: unsurprisingly, Amazon thinks that it makes the settlement worse, not better.
• The Open Book Alliance supplemental brief is more informal and more cutthroat. It works the crowd—this is a legal document also intended to be read by non-lawyers. Also, watch the brief’s tone: it’s a very carefully modulated combination of anger, contempt, sadness, pity, and soothing rationality. The argument that Google is trying to leverage the settlement into control of the search market is worth a close read.
• The non-Anglophone coalition in opposition is smaller than it used to be, but still against the settlement. The new battlefront is not just objecting to being included at all, but also attacking the difficulty of determining whether a book falls within the settlement at all. Many foreign publishers, apparently, haven’t been keeping records of their United States copyright registrations, not since the U.S. accession to Berne eliminated the registration threshold for foreign copyright owners. I thought the best brief on these issues was the one filed for an international group with lead objector Carl Hanser Verlag.
• The Arlo Guthrie objection goes over some familiar turf, but it also has a nice section on the difficulty of using the Google-supplied books database.
• The best discussion about the meaning of “fiduciary” obligations and whether the UWF will meet them comes from the state of Connecticut.
• The most interesting new objector was AT&T. The brief itself, although polished and detailed, has a sort of me-too quality: rephrasing arguments that will be familiar to close watchers of the settlement. It’s more of a confirmation of AT&T’s intense hatred of Google: whatever Google wants, we should try to stop. The proffered reason that AT&T will be harmed by the settlement: it competes with Google in online advertising and in local and mobile search.
• The second-most interesting new objector was a group of Indian publishers.
• The newly launched Fordham IP clinic, led by its newly commissioned director, Ron Lazebnik, filed a brief on behalf of the SFWA, ASJA, and NWU. It has the most detailed discussion of the Author-Publisher Procedures and the mandatory arbitration provisions of the settlement in any filing to date.
• The best of the pro se letters to the court so far is the one from U.K. author Diana Kimpton.

We’re still in the process of uploading filings to the Public Index — I’ll write a follow-up post later on.

I just submitted to the court a set of supplemental comments on the IILP amicus brief from September. Here is the introduction to the six-page letter:

Dear Judge Chin:

The Institute for Information Law and Policy at New York Law School submits these comments as an addendum to its earlier brief amicus curiae (IILP Brief). The IILP’s overriding concern is that the settlement tries to solve a legislative problem through the judicial system. The initial IILP Brief explained how this mismatch created dangers for class members and the reading public. It recommended that the Court insist on the modification of troubling provisions, seek additional sources of advice, and appoint separate counsel to represent the owners of orphan book copyrights. These recommendations were designed to repair substantive defects in the Settlement Agreement and to make the process fairer and more legitimate.

The Amended Settlement Agreement does not adequately address the IILP’s concerns. While it fixes some dangerous provisions of the Settlement Agreement, many remain ambiguous. Others are entirely untouched. It continues to pose real risks of unfairness to class members and the public. Procedurally, this haphazard response confirms the inappropriateness of using a class action settlement in this fashion. Even though the individual defects in the Amended Settlement Agreement all remain fixable in theory, their presence at this late date demonstrates that the process is flawed beyond repair.

Accordingly, this Court should reject the Amended Settlement Agreement. While the orphan works problem is serious, this massive class action settlement does not address it in a fair, just, and legitimate way. Approving the Amended Settlement Agreement would set a dangerous precedent for future cases and undermine democratic political processes.

This filing reflects the continuing evolution of my thinking on the settlement. I have gone from “Approve the settlement.” to explaining “How to Fix the Google Book Search Settlement” to being deeply concerned about the means it uses.” In September, our filing recommended further consultation and improvements to the class action process, in the hopes that sufficient oversight could keep it accountable and operating in the public interest. The letter filed today concludes that the way the settlement uses a class action is not salvageable.

I had been looking for a limiting principle: something that could justify a modified version of the settlement while also setting a clear boundary beyond which future cases could not go. But I have become convinced that no such limiting principle is likely to be apparent any time soon. Without one, there is no way to make the settlement consistent with the rule of law, and it should not be approved.

My thanks again to Daniel Kornstein and Mikaela McDermott at Kornstein Veisz Wexler & Pollard, who worked pro bono in helping draft, edit, and file the letter.

James Grimmelmann, The Amended Google Books Settlement Is Still Exclusive, CPI Antitrust Journal, January 2010:

The deal that Google would get under the proposed amended settlement in the Authors Guild case is exclusive in one very important sense. Many out-of-print books are so-called “orphan works”: they’re in copyright, but their copyright owners can’t be found. If you or I start printing new copies of these books, we’d be copyright infringers, subject to statutory damages of up to $150,000 a book—or even jail time. Google, on the other hand, will be authorized to sell online copies of these books. That’s exclusivity: permission to do what is forbidden to others.

Some pro-settlement commentators have challenged this view. They believe that the market for electronic editions of orphan books is open to Google’s competitors. They make three principal claims: first, that the settlement creates no new entry barriers; second, that it explicitly enables the new Book Rights Registry to issue licenses to competitors; and third, that competitors could reasonably expect to obtain class-action settlements substantially identical to Google’s. All three of these propositions are wrong. In this essay, I will explain why.

Here is an ungated PDF version for those of you who, like myself, are not subscribers to the CPI Antitrust Journal. This, by the way, is the journal formerly known as Global Competition Policy; it ran a special issue on the settlement in the fall.

FYI, as filings come in over the next few days, I’m posting the brief blow-by-blow to Twitter, which is optimized for this sort of thing. Posts here will be reserved for longer analysis.

As the January 28 deadline approaches, the first filing in the second round has arrived. Canadian author Dina Cox has opted out. Post your guesses of how many total filings there will be this time around in the comments.

Larry Lessig has a long essay on the settlement in the latest issue of the New Republic, For the Love of Google Culture. (Here’s a printer-friendly version, but be warned: it’s a little too printer-friendly.) It starts off on a surprising note: talking about the immense difficulty of clearing rights for documentary films. The result is that after their initial release, many documentary films end up in legal limbo: filled with brief clips whose licenses have expired, unable to be shown in any medium.

What does this have to do with Google Books?

So notice, then, how different our access to books is from our access to documentary films. After a limited time, almost all published books (but not all: put aside picture books, poetry, and, for reasons that will become obvious, an increasing range of relatively modern work) can be republished and redistributed. No heir of a long-dead author will stop us from accessing her published work (or at least the heart of it—some would say that the cover, the foreword, the index might all have to go). But the vast majority of documentary films from the twentieth century will be forever buried in a lawyer’s thicket, inaccessible (legally) because of a set of permissions built into these films at their creation. …

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. …

And what this means, or so I fear, is that we are about to transform books into documentary films. The legal structure that we now contemplate for the accessing of books is even more complex than the legal structure that we have in place for the accessing of films. Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.

He proposes redrafting copyright law, rather than ” rely upon special favors granted by private companies (and quasi-monopoly collecting societies) to define our access to culture.” He has three specific proposals for reforms:

The first is to make this property system more efficient. … A better solution would be to shift to the copyright owners some of the burden of keeping the copyright system up to date, by establishing an absolute obligation to register their work, at least after a limited time. … The government should not run these registries. … This maintenance requirement should apply to books alone—for now. …

The second obvious change is to build legal-thicket weed whackers. … For any compiled work—like a film, or a recording—more than fourteen years old (a nod to our Framers’ copyright term), the law should secure an absolute right to preserve the work without burden to the current owner. … Beyond preservation, however, the rule will have to be more complex. The law should enable a simple way for the compiled work to clear perpetual rights to that work alone, so that it can be made available, even commercially, forever. … It requires giving up the idea that the elements in a compiled work—the music in a film, for example—have a continuing power to block access to, or distribution of, that work. …

The third change is the most difficult … In the most abstract sense, we need to decide what kinds of access should be free. And we need to craft the law to assure that freedom. … The one extreme, pushed by copyright abolitionists, that forces free access on every form of culture, would shrink the range and the diversity of culture. I am against abolitionism. And I see no reason to support the other extreme either—pushed by the content industry—that seeks to license every single use of culture, in whatever context. That extreme would radically shrink access to our past. … Instead we need an approach that recognizes the errors in both extremes, and that crafts the balance that any culture needs: incentives to support a diverse range of creativity, with an assurance that the creativity inspired remains for generations to access and understand.

Putting his argument to one side, I’m in awe of Lessig’s skill as a rhetor. I can all but hear his voice: moral urgency in calm and measured tones.

UPDATE: Fixed the title of Lessig’s piece. That was a telling goof on my part, wasn’t it?

Interesting interview with a compulsive book uploader and downloader. Lots of interesting details, but I found the following most striking:

TM: How long does it take you to scan a physical book?

TRC: The scanning process takes about 1 hour per 100 scans. Mass market paperbacks can be scanned two pages at a time flat on the scanner bed, while large trades and hardcovers usually need to be scanned one page at a time. I’m sure that some of the more hardcore scanners disassemble the book and run it through an automatic feeder or something, but I prefer the manual approach because I’d like to save the book, and don’t want to invest in the tools. Usually I can scan a book while watching a movie or two.

Once scanned, the output needs to be OCR’d – this is a fairly quick process using a tool like ABBYY FineReader.

The final step is the longest and most grueling. I’ve spent anywhere from 5 to 40 hours proofing the OCR output, depending on the size of the book and the quality of type in the original. This can be done in your OCR tool side-by-side with the scan of the original image or separately in your final output type (RTF, DOC, HTML, etc.). If there are few errors on the first few pages of text my preference is to proof in RTF, otherwise I do the proof within Finereader itself.

That’s a lot of time.