The Restless Giant (Lawsuit)

The Google Book Search case appears to be gradually waking from its long summers’ nap. Objections and comments, which had slowed to a crawl in June and July, have started to pick up again. Of particular procedural interest is a filing from The Media Exchange Company, which has a pending patent application on a form of digital content exchange and would like to offer digital delivery options to copyright owners and book owners. It therefore asked the court to clarify that it would be allowed to file objections as a non-party. In what reads like a carefully worded (albeit handwritten) order, Judge Chin held:

Application GRANTED. TMEC may object as a non-class member and/or file an amicus brief. The court prefers one submission. This is without prejudice to any argument the parties may make that TMEC lacks standing to object. SO ORDERED.

Potential objectors and commenters take note. There’s also been a sudden spike of activity on the policy front. Three essays of note have crossed my radar.

First, the EFF launched today a privacy campaign targeted at Google, asking it to commit to reader privacy protections as part of implementing the settlement. They’ve sent a letter to Google’s Eric Schmidt laying out their concerns:

Google has put extensive resources into planning how it will dramatically expand its Google Book Search service, but seems to have made woefully little effort to articulate how it intends to adequately protect reader privacy as part of this giant project. Under its current design, Google Book Search keeps track of what books readers search for and browse, what books they read, and even what they “write” down in the margins. Given the long and troubling history of government and third party efforts to compel libraries and booksellers to turn over records about readers, it is essential that Google Books incorporate strong privacy protections in both the architecture and policies of Google Book Search. Without these, Google Books could become a one-stop shop for government and civil litigant fishing expeditions into the private lives of Americans.

As you know, Google seeks court approval to digitize and make available online millions of the country’s books, a great number of them belonging to libraries. As it does so, we urge you to assure Americans that Google will maintain the security and freedom that library patrons have long had to read and learn about anything from politics to health to science without worrying that someone is looking over their shoulder or could retrace their steps.

The letter continues with five specific forms of privacy protections the EFF and its co-authors want Google to provide. Some—such as disclosing reading data to third parties only on proper judicial process, are in keeping with how Google handled sensitive search query data when the government came asking. Others—such as the ability to “give” books to each other without tracking—fit with the privacy of offline reading practices, but could be more contentious.

In addition to the letter, EFF also appears to be gearing up to file with the court. The campaign page asks authors who care about privacy to sign up by August 15.

Second, Bernard Lang, a French computer scientist with an interest in digital copyright, has written a paper on the settlement from an international perspective, with special emphasis on orphan works. He assesses the settlement against the “three-step test” for assessing whether national exceptions and limitations on copyright are permissible under international copyright treaties. I don’t know enough to tell whether his conclusions are correct, but this is essential reading on the legal side. I encouraged him to join the public conversation, and I’m glad he’s been willing to share his analysis (albeit only in draft form).

Thus how could it be possible to rule in favor of a settlement that runs contrary to international treaties by allowing a clear copyright infringement, without the cover of a recognized exception or limitation? Such a limitation could only exist as some form of fair use in United States law, since there is no other explicit provision for it. However, the settlement is precisely intended to avoid having to decide on whether Google has been acting within the limits of fair use, regarding all works under copyright, including orphan ones.

It could be argued that a fair-use claim in the settlement differs from the original fair-use claim of the law suit. But the difference is mainly that fair- use is invoked only for orphan works, since the rights holders of other works are supposedly agreeing to Google’s exploitation. Thus a major part of the requested ruling would still concern the original fair-use issues, precisely for the very subclass that is not being represented. Furthermore, the settlement involves actual exploitation of the works rather than a simple book search service, and fair use can hardly be invoked to justify direct commercial exploitation,

Of course, the United States can introduce new exceptions or limitations, either by extending fair use through some ruling, which is actually what the GBS settlement tries to avoid, or though some new act in Congress, which is what the Orphan Works Act attempted without success so far. This failure can even be interpreted a contrario as indicating that there is currently no exception or limitation in the US legal system to deal with orphan works and that a court ruling on their status could well run afoul of international regulations.

Third, David Balto, a fellow at the Center for America Progress and a prominent antitrust attorney, has a long post at the American Constitution Society’s blog responding to my Issue Brief on the settlement. He critiques my analysis of the antitrust risks and praises the settlement:

In settling the litigation, the publishers, authors, and Google have pursued a sound and necessary approach to resolving a number of rights sharing problems that, until now, have posed seemingly insurmountable hurdles to making books digitally available. For example, by creating a nonprofit organization, the Book Rights Registry (“BRR” or “Registry”), to represent the interests of authors and publishers and to locate rightsholders who have been separated from their works, the settlement will significantly enhance the ability of subsequent entities to commence book scanning initiatives. As such, the settlement should be viewed in light of what it provides for the general public- increased access to the world’s written cultural heritage, particularly books that have long been out of print. The settlement is, in other words, output-enhancing and procompetitive. …

The universally accessible, searchable, digital library that will be realized by the Google Book Search settlement will provide unprecedented benefits to consumers worldwide. The settlement is an efficient and socially beneficial solution to the significant rights uncertainty that currently surrounds many books. Many of the leading critics of the settlement, such as James Grimmelmann, have failed to appreciate these procompetitive benefits while also dramatically overstating the antitrust risks. Like the critics of Columbus’ journey their speculation of concern is unfounded: the earth is not flat. The Google Book Settlement should unquestionably be approved.