From my Insta-Blogging on the settlement the day it was announced last October:

I would argue that a necessary first step would be modifying the proposed settlement to offer any search engine equal ability to participate on the same terms as Google, with no prejudice to their ability to negotiate better terms if they can.

From the Department of Justice brief filed today:

This risk of market foreclosure would be substantially ameliorated if the Proposed Settlement could be amended to provide some mechanism by which Google’s competitors’ could gain comparable access to orphan works (whatever such access turns out to be assuming the parties negotiate modifications to the settlement)

My Principles and Recommendations, from last November:

My starting point is that the settlement is a good thing.

The DoJ brief:

Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost.

My revised version of Principles and Recommendations, How to Fix the Google Book Search Settlement, published this April:

The proposed settlement in the Google Book Search case should be approved with strings attached.

The DoJ brief:

The United States is heartened that the parties are actively considering modifications of the Proposed Settlement and believes the best result is a negotiated solution that can satisfy the dictates of Rule 23, the copyright law, and the antitrust laws.

My ACS Issue Brief, also from April:

This really is a Google-only deal. Suppose that Yahoo! wants to get into the business. If it starts scanning and gets sued, who’s to say that the plaintiffs—who could, by definition, be almost anyone—would file their suit as a class action, be inclined to settle, and be inclined to settle on terms comparable to those offered by Google? … Without a group of “representative” plaintiffs willing to cooperate with the way that the Authors Guild cooperated with Google, Yahoo! would be in the extremely difficult position of trying to file and settle a declaratory judgment action against a gigantic defendant class.

The DoJ brief:

Google’s competitors are unlikely to be able to obtain comparable rights independently. They would face the same problems — identifying and negotiating with millions of unknown individual rightsholders — that Google is seeking to surmount through the Settlement Proposal. Nor is it reasonable to think that a competitor could enter the market by copying books en masse without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement.

Our amicus brief, filed two weeks ago:

It is thus particularly inappropriate for this Court to waive the future claims of the members of the orphan work book copyright owner subclass without a searching examination to ensure that their rights are adequately protected.

The DoJ brief:

Third, the structural safeguards of Rule 23 must be satisfied to ensure that the rights of absent class members are fully protected. This Court should engage in a careful and searching examination of the Proposed Settlement and any revised version that may be submitted.

It’s nice to know that someone out there agrees with me about this settlement. It’s even nicer when that someone is able to take action on it.

The DOJ Brief flatly, expressly, states the GBS should be rejected by the Court in its present form.

In passing, the DOJ states its perception that the proposed Book Rights Registry will be controlled by the major publishers.

In the Objections I filed August 17th for Ian Franckenstein,son of noted author Kay Boyle, I attacked the 63%-37% revenue split as price fixing, citing Goldfarb v.Va. State Bar (l975) 421 U.S.773, a position endorsed by the DOJ in its brief.

To Mr. Garchik’s comment I add: Yes, and…

And: in this letter, the DoJ indicates that it (and, by extension, probably other parts of the Federal Government as well), doesn’t want “the opportunity or momentum” to be lost:

“Given the parties’ express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court, the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved.”

I’m a bit baffled by what seem to be contradictions in the DOJ letter. They seem to disapprove of the freedom that Google has to make un-stated future uses of the out-of-print and orphan works, yet on p. 25 they suggest that the settlement should provide a way to give access to the orphan works to other entities. However, on p. 23 they say that the Registry doesn’t have the power to license orphan works “without the consent of the copyright owner.” Throughout it seems to me that they waiver on whether the court has the right to make a determination over works whose rights holders cannot be found. Does anyone else read this into the text?

Thank you James for your continuing analysis of the GBS. I am not an academic so your blog helps me as a layman understand the issues surrounding the GBS. I think the Department of Justice has done nothing more than issue Google a “play nice” and they have done nothing to hold Google and their library partners that supplied them with in-copyright works accountable for, what I and many others feel, was an infringement of our legal rights to our intellectual property. I am sure that if Google were a company from any other country than the United States, Americans would be screaming “Piracy” and the U.S. would be demanding at the very least, an apology from the offending company and country. The University of Wisconsin in partnership with Google digitized my book in 2008 and I did not know this until I discovered it at Google Books by accident on May 13 of this year. In my case, they cannot use the excuse that copyright holders are hard to find as I registered it with the Canadian copyright office that has an online database of copyright holders with their contact information.
Douglas Fevens Halifax, Nova Scotia The University of Wisconsin, Google, and Me www.facebook.com/douglas.fevens

Another question: DOJ is concerned about foreign authors, and whether they were given adequate notice as members of the class. The settlement is limited to works that have been registered with the US Copyright Office. Is that correct? And I assume that many of the foreign-published books on library shelves would not have been registered in the US since they weren’t published in the US. So…. what is the status of those books, and how would they be included in the settlement? Will they be included at all in the subscription service that is provided by Google to educational institutions? Will they be included in the research corpus? What is the likely set of foreign authors with an interest in this settlement?

Karen, the registration requirement only applies to US works. Foreign works from most other countries in the world are included within the proposed settlement whether or not they’re registered with the Copyright Office.

Thanks, Philip. I have read the definition of ‘Book’ (1.16) numerous times and have no idea how it can be construed to cover non-registered foreign works, but I’ll take your word for it. There’s obviously something here that requires some underlying info of copyright law that I lack. My god this thing is complicated!

Karen, because of the 1886 Berne Conventionif I had not intervened and the GBS as it stands becomes law, than after April 5, 2011 Google Inc. would have owned the digital copyrights to my work, Fevens, a family history. The Canadian database that I mentioned in my last post can be found here.

Douglas The University of Wisconsin, Google, and Me

The Google Book Settlement Notice states:

If you are a rightsholder who is a national of, or is otherwise located in, a country other than the United States, you are likely to own a U.S. copyright interest if (a) your Book was published in the United States, or (b) your Book was not published in the United States, but your country has copyright relations with the United States because it is a member of the Berne Convention…

In an extremely dodgy manoeuvre, the Berne Convention is used to rope foreign authors into the settlement class before the settlement agreement proceeds to dismantle some of the key protections that Berne offers to authors: exercise of their rights without the requirement of formalities such as registration, and, fundamentally, their ‘exclusive right of authorizing the reproduction of [their] works, in any manner or form’.

I have discussed this here.

A number of the objections and briefs from foreign governments, authors’ bodies and publishers have argued that the settlement runs counter to the Berne Convention: see eg. objection by the New Zealand Society of Authors; amicus brief from the French Republic; objection from the German publisher Harrassowitz; etc.

Karen— the key is the word “if” in that definition (i.e., “if” a U.S. work, it has to be registered with the Copyright Office; thus by implication, if it’s not a U.S. work, as defined statutorily, it doesn’t have to be registered… even though it could still fall within the settlement b/c the U.S. grants copyright protection to foreign works b/c of Berne and TRIPS).

Professor Grimmelmann: I am an author and editor of nonfiiction books for kids 12-18, and I have concern about the Google deal that I’ve rarely if ever seen addressed. And that is this: all of the books we create for our readership use archival images (photos) — the day of commissioned art in nonfiction for older kids is long over. No author or publisher ever cleared electronic rights for those images. And yet, the heart of nonfiction for younger readers is the interplay of illustration and text. What would happen to those books if they were part of a digitized library? Certainly the author would not go to the trouble and cost of reclearing the rights. The publisher wouldn’t — since the books are OP. Would Google? No. Last week a consortium of European image rights holders objected to the settlement fearing Google would pressure them to take low paymernts. But we have the reverse problem — while the text goes OP, the rights to the images are controlled by stock houses and museums for which they are a profit center. It seems to me the concept of digitizing books is based on a model of text-only novels, or adult NF in which illustrations are occasional extras. If this digitized universal library is to be of use to the generation of readers most comfortable with using digital tools, we have to figure out an overall policy for dealing with images.