James Grimmelmann, James Grimmelmann on The Google Settlement: What’s Right, What’s Wrong, What’s Left to Do, Publishers Weekly, Nov. 23, 2009:

On Google’s home turf—search—what it does is almost wholly good. When search engines work right, they empower users to seek out whatever they want to learn. That’s the exact opposite of broadcasting, in which a few big speakers choose what everyone else hears. In a world where everyone can self-publish, search engines turn what would otherwise be deafening cacophony into the best party ever, where every guest can instantly join the conversation that most interests them. That’s good for freedom, and good for democracy. Building better search engines is a moral imperative. …

A comprehensive digital books database would be a very good thing, but expediency is no substitute for the rule of law. Even if this settlement is “fair, reasonable, and adequate” to copyright owners, as the law requires, it would still be important to make sure that it doesn’t create a bad precedent for future class actions. What if Union Carbide had been able to settle the Bhopal lawsuits on terms that allowed it to keep on pumping out toxic methyl isocyanate in the future, provided it split the revenue with people living nearby? …

I had hoped that Settlement 2.0 would fix these problems, but it’s turned out to be more like Settlement 1.1: one big feature cut and a bunch of small bug fixes. The feature cut is that most foreign books—those from everywhere besides the U.S., the U.K., Canada, and Australia—are out of the settlement entirely. The new class excludes continental Europe, Japan, and New Zealand, home to the squeakiest wheels the first time around. They wanted out of the settlement, and they got it.

James, in the article you wrote:

Courts have treated online copying as a fair use when the purpose is to create a Web search engine. In the same way, scanning books to make a book search engine should also be a fair use.

I, of course, do not agree. You must take into account the intent of the creator of the work. A creator who publishes to the internet, knows that his work will be searchable around the world, hence the name World Wide Web and that with this technology by its very nature invites copyright infringement. As the creator of my work, I never intended it to be available to the masses. There were only 200 copies published and they were sold and or donated to family and friends, libraries and archives,except for four that were sold to a company that fills standing orders from libraries. I thought I could trust a library to respect my copyright. Someone would have to have a strong interest in the Fevens family to search out a copy of my book and that is the way I wanted it. I do not consider the computer files that Google created as a search database but printing plates, digital printing plates, but printing plates none the less. I not only consider my book as a “literary” work, but as a keep-sake, that I hope some members of my family will treasure, who knows maybe our next prime minister or even your next president is named in my book.
I also want to point out that there is a great deal of difference between being a willing contributer to any digitization project and having your work pillaged. Douglas Fevens, Halifax, Nova Scotia The University of Wisconsin, Google, & Me

They got your affiliation wrong. But otherwise, nice job.

Squeaky wheels make sparks fly on Beattie’s Book Blog (see comments). Fergus Barrowman is the publisher at Victoria University Press, Wellington, NZ.

Publishers Weekly has a new web site so the link to James Grimmelmann on The Google Settlement: What’s Right, What’s Wrong, What’s Left to Do, no longer works.

Yesterrday Publishers Weekly reported that in October the IFRRO (International Federation of Reproduction Rights Organizations) is meeting in Boston. [ Ken Auletta, Marybeth Peters to Address IFRRO in First U.S-based Annual Conference Since 1989 ] At the IFRRO web site I found IFRRO supports lawsuits against Google in the United States raised by the Authors Guild and the Association of American Publishers

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me

The IFRRO AGM was last week. As yet I have found no news from the meeting regarding Google.

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin Google, & Me

Douglas Fevens:

I, of course, do not agree. You must take into account the intent of the creator of the work. A creator who publishes to the internet, knows that his work will be searchable around the world, hence the name World Wide Web and that with this technology by its very nature invites copyright infringement. As the creator of my work, I never intended it to be available to the masses. There were only 200 copies published and they were sold and or donated to family and friends, libraries and archives,except for four that were sold to a company that fills standing orders from libraries. … I thought I could trust a library to respect my copyright.

It’s obvious from other posts that you would have been equally offended even if your copyright hadn’t been infringed upon —- let’s say by that curious person wanting to know the information about your family and then finding it so interesting that they would invest the work to paraphase it on their website. Yes, many, even most, laws take into consideration the intent of the parties involved (and this is possibly one of the reasons for the right of due process) but your intent that no one should publicize the facts in your book doesn’t magically cause copyright law to morph into a new form.

You compared publishing a book to giving birth to a child. This is actually a very apt analogy, because the minute a child is born, one stops having absolute control over what it does (i.e., after a work is published, the creator stops having absolute control over how it is used —- his control is limited to the various ones explicitly granted to him by copyright law).

My work was not “paraphrased” by the University of Wisconsin and Google. They were commercially exploiting unauthorized copies of my book.

§ 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

• (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• (2) the nature of the copyrighted work;
• (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

• (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

  [Section 107, Chapter 1, Title 17 of the United States Code]

The Section 108 Study Group; (“a select committee of copyright experts charged with updating for the digital world the Copyright Act’s balance between the rights of creators and copyright owners and the needs of libraries and archives.” as the group is described on their web site) 2008 report states:

“Machines read and render digital content by copying it. As a result, copies are routinely made in connection with any use of a digital file. While these copies may be temporary or incidental to the use, they are considered “reproductions” under the copyright law for which authorization is required absent an applicable exception.”—- (Introduction, Page 6, Second “bulleted” item)

Google & Company’s commercial use of my work is not an “applicable exception.”

Douglas Fevens, Halifax, Nova Scotia—- The University of Wisconsin, Google, & Me

Douglas Fevens:

My work was not “paraphrased”…

You keep avoiding answering the following simple question: if it had been paraphrased, wouldn’t you have been equally disturbed?

The question is: Was the digitization and exploitation of my work by the University of Wisconsin and Google legal? I don’t believe so. Was It Legal? (Revised)

Douglas Fevens, Halifax, Nova Scotia— The University of Wisconsin, Google, & Me

Douglas Fevens:

Answering a different question isn’t the same as answering my question. In the absence of cooperation from you, I can only assume that my analysis is correct, and the question of whether your copyright was infringed is totally incidental to your grievance against Google and the University of Wisconsin library.

By the way, thanks for the interesting link to section108.org. In the paper you cite, on page 14 it explains that

Libraries’ missions include collecting publicly disseminated materials relevant to their user communities, aggregating content from diverse creators and publishers, preserving content in their collections, and providing access to materials regardless of the ability to pay.

and on page 19 it explains that

DMCA Amendments to Subsections 108(b) and (c). Until the DMCA was enacted, copying under subsections 108(b) and (c) was limited to a single copy of a work “in facsimile form.” The DMCA changed these provisions to permit up to three copies and to allow those copies to be made in digital form, in recognition of the changing practices of libraries and archives.

This paper makes it obvious that the production itself of the digital copies (or “digital printing plates”, as you sometimes refer to them) of your work was perfectly legal. The only remaining legal question is whether it was legal for Google to license their use from the Author’s Guild in the fashion it did. Hopefully Judge Chin will rule on this shortly.

To summarize: the vast majority of the actions you are angry about were perfectly legal.