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I’m never going to get around to writing about the antitrust issues if I save the whole thing for one big post. Let me try hacking smaller chunks off and see if that approach works.

The question for today is whether we should be afraid that the individual e-books available through the Consumer Purchase program will be priced unfairly high. Note that I’ll be looking only at individual books, not at the all-you-can-eat Institutional Subscription, which raises very different economic issues. I’m also going to look only at books whose rightsholders have claimed them with the Registry, since the antitrust issues with unclaimed and orphan works are also subtler. In this post, I’ll be looking only at whether booksellers will take advantage of Google’s marketplace for e-books to collude in setting their prices for individual e-books above the competitive level.

My current conclusion, following the arguments made by Einer Elhauge, is that there is not an economic danger here. Any potential cartel is unstable; Google’s role in algorithmically setting prices is not likely to lead to trouble. The only potential issue is transparency; if Google successfully pulls one over on both the public and on copyright owners with its algorithm, it could put the squeeze on readers.

An Antitrust Economics Review

You can skip this section if you feel comfortable with basic antitrust economics.

The standard economic model of antitrust is that in a competitive market, sellers are forced to lower their prices to compete with each other. This drives the prices down to the point at which the sellers just barely cover their costs. The result is that the price charged will be below what many buyers are willing to pay; the difference is consumer surplus and is good for society.

In a cartel, the sellers collectively agree to raise their prices to some higher level. (I’m going to assume no price discrimination; that’s a topic for another day and another blog post.) These higher prices have two effects. First, some buyers are driven out of the market because the price is higher than they’re willing to pay. Second, the buyers who stay in the market pay more. Fewer units are sold, but at a higher price. The difference in price, times the number of buyers who stay in the market, is now money going into the pockets of the sellers, rather than benefits accruing to buyers who paid less than the value they derive from the product. That means some consumer surplus has been transformed into producer profits: good for sellers and bad for buyers.

But notice that some buyers have dropped out entirely. The consumer surplus they used to enjoy is now gone. It’s a social benefit that the cartel’s pricing has destroyed. Consumers overall have kept some surplus, given some to the producers, and watched the rest vanish into thin air. Cartel pricing causes more harm to consumers than benefit to producers, and thus, while it’s in sellers’ self-interest to cartelize if they can, it’s bad for society.

In a market with only one seller, it’s relatively easy to hold prices at a supracompetitive level. It just sets a take-it-or-leave it price. But in a market with many sellers, it takes coordination. They have to agree to charge supracompetitive prices, and they have to enforce the deal against each other. That’s because an agreement to monopolize a market doesn’t magically take away the competitive pressure to lower prices; each cartel member would love for the other suckers to set their prices high while it undercuts them and steals the whole market. That’s why cartels are more often formed when there are good ways for members to monitor each other and punish each other for cheating.

Copyrighted works are a funny kind of market for antitrust purposes. On one level, each individual work is its own, legitimate, micro-monopoly. No one but the author (or her licensees) can legitimately sell a book. Since the marginal cost of making more copies can approach zero (especially for e-books), supracompetitive pricing is actually the incentive the copyright system gives to create new books. It’s a conceptual mistake to use antitrust law to try to force that price down.

On another level, though, books clearly compete with each other. I’d say that Dan Brown is a poor substitute for Umberto Eco, but will do in a pinch—and there are others who’d say the exact opposite. That means that the availability of cheap titles exerts downward pressure on the price of other titles. Publishers can’t ignore what others are charging, as much as they’d like to, and there are many out there distressed by what they see as a downward price spiral in the digital age. (By way of comparison, note how music is effectively becoming cheaper each year.)

Specified Pricing

The settlement provides two options for pricing books. Each copyright owner is free to choose either, and to switch between them at any time. Let’s start with the first, Specified Price, which lets each copyright owner choose a price. That choice belongs solely to the copyright owner; Google has no influence over it.

I find it hard to see how pure Specified Pricing could result in cartel-like behavior. I’ll put it this way: has the publishing industry successfully cartelized physical book sales or e-book sales? The situation there is very similar to the situation under Specified Pricing: publishers set the prices at which they sell copies. There are lots of terms having to do with promotions, discounts, bulk orders, returns, and so on—but the basic reality is that books are priced to sell.

Specified Pricing through Google Books doesn’t change that reality. It adds another distribution channel (one in competition with existing ones, I might note), but provides no institution capable of coordinating prices or enforcing discipline against low-pricers. True, copyright owners can monitor each others’ prices easily, but they can do that fairly easily already. Google’s Specified Pricing adds no enforcement teeth. There’s no reason to expect that pricing under Specified Pricing will be any less competitive than the current book retail market, and thus no reason to veto the settlement on that ground.

Settlement Controlled Pricing

That leaves Settlement Controlled Pricing, in which a Google algorithm will sort books into one of twelve pricing bins ranging from $1.99 to $29.99. The Pricing Algorithm must “find the optimal such price for each Book and, accordingly, to maximize revenue for each Rightsholder.”

There are two ways of reading this provision. One is that the Pricing Algorithm must mimic the behavior of sellers in a competitive book market (or, rather, sellers in a competitive book market if they had algorithms as smart as Google’s). Each seller’s goal is to maximize revenue, so it cuts price as long as that increases its sales and market share enough to make up for the price cut. Google’s algorithm will have access to lots and lots of data, so it will presumably be very good at finding the revenue-maximizing point.

If so, then Settlement Controlled Pricing is a good deal for everyone. It will keep copyright owners from stupidly leaving money on the table by setting silly prices. Some prices will fall, others will rise. Overall, copyright incentives will more clearly match the value of books to readers. Google’s algorithm will remove inefficiencies in the market, without introducing any anticompetitive elements.

The other, scarier reading is that Google’s algorithm must try to collectively maximize the revenue of copyright owners. If so, Google might discover, from its mountains of data, that if it simultaneously raised the price of all books from $10 to $15 (to take a simplified scenario) that the increase in revenue would look a lot like the output of a cartel to raise prices. This is a point made by Randy Picker and Eric Fraser. Einer Elhauge thinks that the settlement, to avoid antitrust dangers, should simply be interpreted to require individual maximization rather than collective; I agree, but I would rather have the settlement explicitly say so than rely on a canon of construction.

But Is the Cartel Stable?

Even assuming the settlement has the dangerous, collective-maximization reading (or that Google secretly twists its algorithm to follow that rule), what will happen? The key question here is whether this new equilibrium is stable. Fraser’s simultaneity argument, in essence, is that individual copyright owners might not be able to raise prices unilaterally, but if Google does it for all of them at once, they reach a point where they’re all better off.

Elhauge, however, works through the game theory of the situation and persuasively concludes that no, each copyright owner has full incentives to defect from the collectively raised prices. That is, if Google raises the prices on all books at once, each copyright owner now has a chance to seize market share by dropping its price back down to the lower level. Everyone else looks like a sucker. Copyright owners still have the right incentives form society’s point of view; Settlement Controlled Pricing alone can’t boost them into a realm where those incentives fail to apply.

Put another way, the copyright owner’s option to switch back to Specified Pricing means that any cartel dependent on Settlement Controlled Pricing is as unstable as a cartel crated through Specified Pricing would be. It’s possible, but the instrument of conspiracy would be some kind of separate agreement, not mere participation in Google Books. And that means that the possibility of excessive pricing here is not a reason to reject the Consumer Purchase terms of the settlement.

Transparency and Algorithmic Review

There is one potential scenario in which I can see trouble: if Google implements its algorithm in a price-fixing manner and copyright owners are asleep at the switch. Perhaps Google raises prices to a supracompetitive level and most copyright owners simply don’t notice, or, lacking good information, don’t realize they could do better by cutting their prices. Google, after all, holds all the valuable information here, in its pricing algorithm.

The settlement does include an auditing provision, which allows the Registry, “to validate, through the use of a reasonable number of third-party experts, the reasonableness of the Pricing Algorithm and to verify that the conclusions it produces are statistically valid.” The audits are confidential and Google only needs to disclose details of the algorithm that are “necessary” to verify its conclusions.

This might not be sufficient oversight. Much depends on the Registry and its experts. I would note that the Registry has the right incentive to keep Google from systematically underpricing books, but not the right incentive to keep Google from systematically overpricing them in a cartel-mimicking fashion. Were I the Registry, I would simply not design my audit in a way likely to catch coordinated overpricing, I would display a studied incuriosity about the details of the algorithm, and I would not put pressure on Google to provide copyright owners with much other information for them to make pricing decisions.

The information really needs to flow either to individual copyright owners, so they can check whether their prices are right (and cut them if they aren’t), or to antitrust enforcers (so they can check the algorithm itself), or to both. Of course, one might believe for other reasons that Google’s pricing choices are too constrained to be dangerous. You could argue that these e-books must compete with all of the other usual channels of trade and that copyright owners can experiment with putting their books into Specified Pricing and gather their own data. My point is just that if you start from the hypothesis that the prices here should be set competitively, it’s not fully clear that Settlement Controlled Pricing gets copyright owners all the information they need to have the right incentives to defect from a Google-created cartel-by-default.

Conclusion

I am not very worried about pricing in the Consumer Purchase program, at least for books whose copyright owners are around to exercise control. An explicit cartel for this part of the market is not an immediate worry. The choice to name their own price, which choice is always available, is a powerful constraint on Google’s ability to impose supracompetitive prices on readers. The only risk of collusion that I see in Consumer Purchase for actively-managed consists in Google keeping secret too many of the details of its pricing algorithm for copyright owners to know when it would be in their interest to set a different price. That kind of potential dishonesty, though, can be fixed with the right kind of transparency and oversight. The Registry audit procedure provides a good starting point, even if it is not yet a sufficient guarantee.

Peter Shuck’s masterful Agent Orange on Trial: Mass Toxic Disasters in the Courts may be two decades old, but it stands as one of the best books on class-action litigation ever written. Some of the parallels to the Google Book Search case are striking. I noticed the size of the class, the difficulty of financing the case, conflicts among class lawyers based on who their clients were, the legal defenses that made proceeding to trial risky for plaintiffs, the shift from a comparatively passive judge to one exerting more control over the case, the choice-of-law problems, the view of many class members that the case was as much about vindicating their rights as about compensation, the tension between objecting and opting out, notice and deadline problems, the enormous pressures to settle, the complexity (and controversy) of the distribution plan, the press coverage and PR wars, the multiple roles of the fairness hearing, the power of innovative procedures to solve social problems, the risks of innovating procedures for legality and individual rights, and the reluctance of Congress to play a role in resolving the issues. There are many differences, as well, but the book is still quite illuminating on the present dispute. I wonder whether perhaps it is time for a theory of mass copyright torts to parallel Schuck’s theory of mass toxic torts.

Some articles in my recent pile, from each of which I also learned:

• Susan P. Koniak & George M. Cohen, Under Cloak of Settlement, 82 Va. L. Rev. 1051 (1996)
• Alexandra Lahav, Fundamental Principles for Class Action Governance, 37 Ind. L. Rev. 65 (2004)
• William B. Rubinstein, The Fairness Hearing: Adversarial and Regulatory Approaches, 53 UCLA L. Rev. 1435 (2006)

James Grimmelmann, GBS and Students: James Grimmelmann of NYLS on Orphan Works, Students for Free Culture Blog (part of a series on the implications of the Google Book Search settlement for students):

Ultimately, the biggest reason to worry about the Google Book Search settlement is its effects on the rule of law. The class-action lawsuit by which Google is attempting to gain these rights is a complex, temperamental affair that pushes at the limits of the law and benefits one company exclusively. A small group of small group of large publishers and a self-appointed cabal of authors claim to speak for all authors worldwide. And it will be enormously difficult for any other book-scanners to replicate the legal machinations that produced the settlement. All of these precedents are bad for the integrity of the legal system and for the bottom-up processes of creativity, negotiation, and exchange that characterize a vibrant culture.

All is not quiet at the courthouse. The American Society of Media Photographers and its coalition of photographic and graphical artists have renewed their motion to intervene. That motion, you may recall, was denied by Judge Chin with his usual reason: “The case was filed four years ago and has been conditionally settled; it is simply too late to permit new parties into the case.” The ASMP objectors are upset because, as they see it:

• Google’s scanning program infringed their copyrights, not just authors’ and publishers’.
• The original complaint excluded visual works from the plaintiff class; the 2006 amended complaint included them; the settlement class excludes them.
• Being left out of the deal harms them because they don’t benefit from the Registry.
• Being left out of the negotiations harmed them because they could have pressed for greater compensation.
• Practically speaking, they can’t vindicate their rights effectively if they’re not in the settlement.

Thus, the motion to intervene has two goals. First, it’s a vehicle to make sure that Judge Chin will listen to their objections. Second, it’s a way to try and get a seat at the negotiating table. Both of these questions are intertwined with the question of whether they should be treated as in the class or out of it. In one sense, the motion is schizophrenic, because it complains about being in but also about being out. In another, this ambiguity is precisely the problem; as they see it, they’re getting the worst of both worlds.

Meanwhile, the National Writers Union has issued a statement asking the Authors Guild to withdraw from the case. The NWU’s membership, speaking through its leadership, is also upset with the negotiated terms of the settlement. Its proposed way forward, like the ASMP’s, involves “new negotiations with the many voices that have up to now been excluded.”

Also meanwhile, as I blogged yesterday, Irv Muchnick wants the Google Book Search negotiations consolidated with the Reed-Elsevier negotiations. That would bring writers with works published in periodicals to the table. It would also reduce the control that the folks who negotiated the GBS settlement version 1.0 would have over version 2.0.

See a pattern?

As I’ve been reading these various requests, I’ve been getting the sense that there’s something a little ill-formed about their procedural claims. The desire to have a seat at the table is sensible enough, but that’s not usually how class actions work. So I thought some more, and read some more, about just what it is that bothers these procedural objectors, and how to fit their concerns into a class-action framework. And here’s what I’ve come up with.

(Continued . . .)

Peter Jasco, writing in Library Journal, does for the metadata in Google Scholar what Geoffrey Nunberg did for Google Books:

False names are created from options on the seach menu, such as P Options (for Payment Options); from parts of the author affiliation (CA San Diego, C Ltd, M View for Mountain View); from Table of Contents pages on publishers’ web sites; and from section headings of articles (B Methods, D Definitions, G Assessment, H Variables, I Evaluation. (The initial varies depending on the section identifying letter or Roman numeral.)

The article is scathing on the quality of Google’s parsers, and argues that Google should be more reliant on the high-quality metadata now being made available by journal publishers.

The press and the public were so enamored of anything with the word Google in it that GS developers apparently believed they could create a parser to identify the metadata better than the human indexers at the publishers, repositories, and indexing/abstracting services who assigned metadata by listing author, title, journal name, publication year, and other metadata elements.

But note that this is the opposite of the problem with Google Books, where Jon Orwant’s response to Nunberg put much of the blame on bad metadata supplied to Google by outside cataloguers. My instant reaction is that the situation can’t be as black-and-white as Jasco claims; I’d like to know more about the data sources made available, the terms, and the history.

Irvin Muchnick, the lead objector in the Reed Elsevier case currently before the Supreme Court, has written an interesting letter to Attorney General Holder, arguing that the Elsevier case (about periodical publishers putting articles in electronic databases without explicit permission form authors) and the Google Book Search case have so much in common that they should be negotiated together. What, precisely, that means is somewhat unclear. He says:

My purpose is to advance the Government’s appreciation that the two cases are best discussed, prospectively and in the public interest, as a package.

I have no quarrel with that—I’m all about discussion in the public interest—but “discussion” of them both is already happening, and the DoJ has no particular legal role to play in pushing mere “discussion.

Muchnick then writes:

It is in that context that the Freelance respondent-objectors seek your good offices in broadening the scope of the negotiations in both cases.

If he means merging the negotiations so the two class-actions will yield a single settlement, this strikes me as a bad idea. In Fake Steve’s phrase: “It’s like taking the two guys who finished second and third in a 100-yard dash and tying their legs together and asking for a rematch, believing that now they’ll run faster.” Both settlements are intensely complex; they involve different copyrights, different media, and different uses. Smushing them into one is more likely to cause both to break down in irreconcilable differences—the exact opposite of Muchnick’s goal.

Perhaps he just means bringing more people and more perspectives into each set of negotiations. That’s probably not a bad thing, but there’s a limit to how far a class-action negotiation can go. Not to keep tooting our horn, but this is one thing that conferences like D is for Digitize can do well—air a lot of views, sort through multiple perspectives, and lay out the different issues that will need to be addressed.

Muchnick concludes:

For these reasons, the Freelance respondent-objectors request that the Government use its facilitating role in the renegotiation of the Google settlement, first and foremost, as a platform for broadening those negotiations. They should include the Freelance respondent-objectors, to be sure, but not only us; all stakeholders in the emerging copyright landscape should have their interests heard and incorporated. From a policy perspective, perhaps the most egregious lapse to date has been the disenfranchisement of librarians and information consumers in the rush to tailor litigation settlements. The resulting pastiche of proposed solutions is poorly integrated and has ill-served all parties.

I think this is a worthy goal, and I’ve said similar things about class-action negotiations versus legislation, but I’m still trying to puzzle out what exactly Muchnick wants to have happen. A negotiation in which various other stakeholders must sign off on the deal for it to be accepted? A DoJ-brokered roundtable at which Bill Cavanaugh decides whether there’s a consensus or not? An expanded fairness hearing procedure in which Judge Chin presides over a mock legislative drafting session? Note that all of these are probably beyond the DoJ’s power to order. The DoJ can, I think, negotiate over whether it objects or not—just as anyone else can—but it’s hard to see what process Muchnick wants the DoJ to use its muscle to put in place.

In short, conversation, dialogue, and negotiation are good. But I’m not clear on how Muchnick’s proposal means to get us there.

Judge Chin granted the motion to defer the fairness hearing. He’s scheduled the status conference for the time it opened up: October 7, at 10:00 AM.

The parties shall attend. The Court will not hear arguments from any objectors, supporters, or amici — including those who emailed requests to be heard — at this conference, though they are free to attend.

I’m going to have to drop offline to make slides for my evening class soon, but here are a few quick thoughts on the settling parties’ bombshell announcement that they’re renegotiating the settlement and need time to do it:

• It’s interesting that they haven’t withdrawn the motion for settlement approval, only asked for a delay in the hearing. (Leaving the door open to try again with the current settlement if negotiations fail?)
• Since last October, the settling parties have been saying that renegotiation would kill the settlement, since the original round was so contentious. Looks like the DoJ successfully called that bluff.
• I may be misreading the motion, but they seem to think that they couldn’t have new text ready by October 7, but may be able to have it by November 6. Or at least, they’ll commit to a schedule then.
• People have already made travel plans to come to New York and may not like the rescheduling. But the original purpose of the hearing—a debate over whether to approve the settlement as is—is now all but moot.
• I have a hard time seeing Judge Chin denying the motion. I could be wrong, but pretty much everyone is now telling him to wait. Trial judges don’t like to force an issue if there’s a chance it could go away by mutual agreement.

D is for Digitize is still on, for October 8–10. We won’t have the one-two with the fairness hearing, but we will offer a rare chance to be part of the conversation over what the revised settlement should look like. Come join us—there’s still space available!

The author and publisher plaintiffs filed a motion to adjourn the fairness hearing, together with a short supporting memorandum. Google does not oppose the motion. The executive summary:

• The parties are renegotiating the settlement (with each other and the DOJ).
• The issues are too complex to present a revised settlement by October 7.
• They’ve requested a status conference for November 6 to discuss a future schedule, so they may have a revised settlement by then.
• The parties don’t yet know whether the changes will require a renotice.

UPDATE: Instant commentary here.

Today, we sent Judge Chin a letter requesting that he make video of the fairness hearing available online. This case directly affects the rights of millions, the overwhelming majority of whom will be unable to be present at the hearing in person. In keeping with our principles of using technology to improve access to the legal system, we’ve asked the judge to bring them more fully into the process by making a recording of the hearing available. It’s much better that everyone can see for themselves what takes place at the hearing rather than needing to rely on the incomplete and possibly incorrect recollections of reporters and bloggers. Here’s the text of the letter:

Dear Judge Chin:

We write to request that the Court make public a video recording of the October 7 fairness hearing in the Authors Guild Inc. v. Google Inc. case. Specifically, we ask the Court to use its existing video-conferencing capabilities to prepare and make available to the public a recording of the proceedings. Indeed, if an overflow room is required to accommodate those who wish to attend the hearing, the Court will already be using those same capabilities to provide a video stream to the overflow room. If the Court is concerned about the costs and technical burdens associated with distributing the video files to a potentially large number of viewers, the Institute for Information Law and Policy at New York Law School would be willing to assume that responsibility.

We believe that there is a compelling public interest in making the hearing videos available broadly and immediately. The substantial public interest in the case has already been demonstrated by the volume of filings the Court has received and the substantial media coverage of the lawsuit and settlement. The settlement class contains millions of members worldwide, the overwhelming majority of whom will be unable to attend the hearing, but whose rights will be directly affected by what happens there. Nor is the impact of the settlement limited to class members; it will directly affect the rights and options available to thousands of libraries and billions of readers. The Court’s physical facilities cannot possibly accommodate more than a tiny fraction of interested class members; transcription will impose substantial delays. Recording is the only feasible option for enabling immediate and meaningful access for those who are interested in the settlement but cannot afford the trip to New York or fit in the courtroom.

We also do not believe that the usual concerns justifying limiting public access apply in this case. Unlike, for example, criminal sentencing proceedings, this civil and commercial case will not require discussion in open court of any sensitive material, nor will participants in the hearing have personal privacy interests that require protection. Similarly, the class-action nature of the case means that far more people than usual have a direct interest in the proceedings, and thus are in no sense outsiders to the case. Moreover, the far-reaching nature of the proposed settlement makes this a topic of legitimate and substantial public concern. All these factors counsel making the hearing as broadly public as possible, as quickly as possible. Distribution of video recordings of the hearing is well tailored to meet this goal.

We thank the Court for its consideration of this request.

Respectfully yours,

James Grimmelmann
Associate Professor of Law
New York Law School

Jack Kirby’s heirs are trying to reclaim his superhero copyrights from Marvel. Do we need any more confirmation of what a nightmare termination rights are? The concept is coherent (if economically and morally indefensible) when it comes to discrete works like books, But for comic series, which are continually produced by changing casts of creators, licensed into an astonishing array of derivative works, and subject to a mind-boggling degree of cross-pollination with other creative works, it’s both destructive and intellectually unworkable. Kicking a key piece of the copyright foundation out from under these vast creative enterprises does nothing for society except provide employment for copyright lawyers.

My sympathies ordinarily lie with authors over publishers, with creators over distributors. Many times, the relationship is deeply unfair or openly exploitative. But termination of transfers is a terrible solution to the problem. It’s one of the few parts of the Copyright Act that can get me to the point where the veins in my face are bulging ominously. (Usually, my attitude is more one of resigned sadness intercut with wry amusement.) That it’s also politically untouchable just adds to the pain.

It looks like the lawsuit against Facebook over its Beacon advertising system has settled. Facebook is paying $9.5 million and disabling all Beacon functionality. Two years ago December, I wrote, “Class action lawyers, start your engines.,” and they did.

The CNet news story linked above makes a very nice point. Beacon doesn’t matter very much to Facebook any more; it’s since been replaced by other programs like Facebook Connect. But those other programs are also more successful than Beacon because they’re more user-empowering. They’re also better on privacy because, being user-directed, they also have a more natural, easier-to-envision, flow of information than Beacon’s surreptitious behind-the-scenes linkage. Take note! Realistic privacy, user empowerment, and success are linked.

While you’re pondering the significance of the DoJ filing, how about registering for D is for Digitize, where all will be made clear?

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.

DoJ files “statement of interest.” I’m reading, and posting insta-updates to my twitter stream (I’m @grimmelm) as I go.

UPDATE: Okay. Got it. This is a really, really good brief. The Department of Justice appreciates both the potential and the dangers of the settlement. They’re clearly trying to lay the groundwork for a constructive way forward, while protecting copyright owners and competition.

The DoJ, speaking on behalf of the United States, has two broad areas of concern: fairness to copyright owner class members and protecting competition. It also strongly notes the public benefits from making out-of-print works more available, from creating accessible versions for the disabled, and from expanding distribution options for books. Their bottom line is that the settlement as it now stands is untenable, but that with modifications, it could be much better. It indicates that the parties are trying to negotiate (with each other and with the DoJ, it would appear) some of those changes, and the DoJ gives the court suggestions for how it ought to encourage the parties along.

On the class-action fairness side, the DoJ is concerned about whether the named plaintiffs adequately looked out for orphan owners and for foreign owners. If the settlement were flipped to opt-in for out-of-print works, that would solve a lot of the orphan issues, but the DoJ also suggests that other modifications to reduce the conflicts of interest (such as better escrowing procedures) could work, too. As for foreign owners, the DoJ’s idea is that the named plaintiffs should include class representatives who are foreign copyright owners for in-print and out-of-print books. (Note that this is a more intrusive step than saying that Registry directors include foreign copyright owners, because the class representatives have a seat at the table in the negotiations.)

The DoJ also notes the notice concerns but expresses no opinion on whether they’re sufficiently serious to warrant rejection. Their reason for not saying—that the factual record is insufficiently developed to tell—strikes me as right. That said, the factual record is pretty bad for the settling parties. But given the fact that the DoJ wants them to renegotiate a revised settlement, a re-notice seems to be nearly certain in DoJ-world, so presumably that second notice would be a chance to get everything right.

On the antitrust side, the DoJ is deliberately cautious, saying it has an open investigation. I suspect that one of the reasons for caution is to avoid committing while negotiations are still open. They raise four issues, some of which I simply hadn’t noticed. I’m not going to get into their general attempt to parry some of the parties’ arguments about the BMI case; I think specific claims of anticompetitive conduct are the right place to discuss the import of the BMI precedent.

First, they’re concerned about the fixed 63% revenue split, which they call a “price floor” in the wholesale book market. I’m not sure that this is problematic, given that publishers and authors can always remove their books from the settlement’s revenue models entirely and negotiate with Google outside of the settlement. The 63% figure is just an offer extended by Google to all copyright owners in the class. Einer Elhauge’s paper gives strong arguments that this split is unproblematic. I’ll think about it some more, but the DoJ brief leave me unconvinced here.

Second, they believe the settlement restricts Google’s ability to offer retail discounts. I totally had not thought about this issue. I’m going to need to reread the settlement to tell whether they’re right about this; I’m going to need to read the cases they cite in order to decide whether it’s economically problematic. I’ll assume that the DoJ antitrust lawyers are good at reading settlements and reading cases, making this a live, interesting issue.

Third, they think the settlement lets the Registry, in its negotiations set prices of orphan works, which compete with the works of the known rightsholders who control it. Of course it does, and this issue goes to the heart of putting all orphan books under one central managing agent’s control. I think the pricing mechanism rules for the Institutional Subscription and Consumer Purchase deal with these issues (though the settlement may be ambiguous on some details), but as to other new revenue models, the Registry is constrained only by Google’s negotiating position.

Fourth, the DoJ basically channels my views on barriers to entry and the near-impossibility of a competitor being able to obtain the orphan authorizations that Google will. I thank them for putting the case so clearly and sharply. Fascinatingly, they close out the section by saying:

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).

This is standard, so far—the settlement would be much better if competitors could get the same terms as Google. But then the DoJ moves the ball forward for a first down in two ways. They drop a footnote suggesting that the Registry could be authorized “to act as continuing agent for the rightsholders with respect to orphan works already granted to it under the Agreement,” making the case that this change would be only a smallish tweak to the settlement. And then try insert a cite to the settlement in the In re Literary Works in Elec. Databases Copyright Litigation case, citing it for the proposition that it authorizes “numerous companies beyond the named defendants allowed to obtain benefits of settlement.” Precedent! For nonexclusivity! In a copyright class action! For those of us who think that nonexclusivity is the key reform, this is huge.

Of course, the DoJ is appropriately cautious. They don’t say that this change would fix the antitrust concerns. They also warn that any changes would need to be consistent with Rule 23. But the emphasis is on finding a way to fix the antitrust concerns while staying within the limits of class action law. That’s a very constructive approach.

At the end, the bottom line is simple:

This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws.

This was a really gratifying filing to read. So many of the briefs and letters I’ve gone through in the last few weeks take a one-sided view of the settlement—wholly good or wholly evil—that it’s refreshing to read one that takes both good and bad seriously. It’s even more refreshing that they settle on the most fundamental issues and come out in basically the right place: the settlement has problems but is probably fixable. The emphasis on continued discussion is healthy, and the indications that negotiations are actively underway are very encouraging. I’m feeling more optimistic that something good will result at the end of the day than I have been in a while.

Many of the problems I highlight can be fixed in minutes. Some already have been. What is significant for this argument is the extent to which particular problems throw light on systemic issues with a process or project. It is one thing to arrest a politician for corruption. It is another to understand what it is about the political system that fosters corruption. With that analogy in mind, we should consider whether faith in the possibility of continuous fixes leaves general problems in place. (Captain Renault, after all, ordered a round up of “the usual suspects” exactly to ensure the root cause went undetected.)

—Paul Duguid, Limits of Self-Organization: Peer Production and “Laws of Quality”, First Monday, October 2006

Jessica E. Vascellaro, U.S. to File Concerns Over Google Book Pact, Wall Street Journal (Sept. 18, 2009):

The Justice Department is expected Friday to outline a range of concerns it has about a settlement that Google Inc. struck with authors and publishers over the rights to distribute digital copies of certain works, according to people familiar with the matter. …

The filing is likely to discuss the department’s concern that parts of the agreement may hurt the interests of other parties, such as Google’s potential competitors in the nascent digital-book market, the people said.

For example, the Justice Department is concerned that one of the agreement’s features — a “registry” that governs aspects of the agreement such as some pricing and payment distributions — could allow publishers to set prohibitively high prices for their works, said one of the people familiar with the matter. …

The Justice Department believes some of its concerns can be addressed through continuing negotiations, according to one of the people familiar.

Well, I guess the DoJ is going to file an antitrust opposition tomorrow, but beyond that, it’s hard to tell anything specific from this article.

Susan Decker & Christopher Stern, Google Said to Be in Talks to Modify Online Book Settlement, Bloomberg (Sept. 16, 2009):

Google Inc. and a group of authors and publishers are talking to the Justice Department about modifying a settlement to make millions of out-of-print books available online, two people familiar with the discussions said.

The discussions are aimed at easing Justice Department concerns the deal would let Google discourage other companies from competing for access to the books online, said one of the people. Both spoke on condition of anonymity.

The official line from all parties is “no comment,” so who’s the leak? Remember, Google and the named plaintiffs kept this secret for years during the initial negotiations, and DoJ has managed to keep an internal lid on its views during the investigation. That would suggest that either a deal announcement is imminent (and more people are being brought into the loop), or that this is a deliberate plant by one side. Google, as a way of defusing the impact of a powerful DoJ filing? DoJ, as a way of showing the public that there are both carrots and sticks involved? DoJ told people in the White House and they’re not as good at keeping secrets? Put your guesses in the comments.

The other fascinating signal here is that there wouldn’t be anything to negotiate over unless DoJ thought there were serious enough issues with the settlement that it would have legal grounds to oppose it and that it would be worth opposing it. I’m also trying to parse the phrase “concerns the deal would let Google discourage other companies from competing for access,” which is either a reporter’s slightly garbled description of the antitrust issues, or an indication that the DoJ is truly focused on the problem of entry barriers.

Judge Chin has just issued an order governing the procedures for appearances at the fairness hearing:

CHIN, District Judge

September 8, 2009 was the deadline by which objections and amicus curiae briefs were to be filed with the Court. The Court has received approximately four hundred submissions — objections to the proposed settlement, statements in support of the proposed settlement, and briefs from amicus curiae. All the submissions have been uploaded onto the Court’s electronic filing system.

In light of the volume of submissions, and the apparent public interest in the case, the following procedures shall govern the fairness hearing:

1. By October 2, 2009 the parties shall respond in writing to the filings in this case.
2. The fairness hearing shall proceed as scheduled on October 7, 2009 at 10:00 a.m.
3. Any person who wishes to speak at the fairness hearing must submit a request to speak by sending an email to googlebookcase@nysd.uscourts.gov by 5:00 p.m. EDT on September 21, 2009. The request shall include a brief statement of interest. Depending on the number of people who wish to be heard in person, the Court may limit both the number of speakers and the time any particular person will be permitted to speak. Those selected to speak will be notified by the Court by September 25, 2009 by return email. The parties to the case and the United States need not submit a request to speak; they will be given an opportunity to speak. Of course, the Court will review all written submissions; objectors, supporters, and amici are not required to appear at the hearing for their views to be considered.
4. The parties shall post a copy of this order on the settlement website forthwith.
5. Details regarding courtroom seating, press access, and an overflow room will be provided in a later order.

SO ORDERED.

Dated: New York, New York
September 16, 2009

DENNY CHIN
United States District Judge

Note in particular point 1, which answers the question of how and when Google and the named plaintiffs would respond to the objections.

I continue to be impressed with Judge Chin’s work on the case. He’s been pragmatic about procedures, but rigorous about keeping the case on track and about making sure all opinions are heard. In a sense, he’s a good judge for the settling parties. If the settlement is going to stand up on appeal, it needs a searching examination and carefully prepared record at the District Court level.

It appears that the filings really are pretty much complete. Only sixteen hit the electronic docket yesterday.

• One more Dutch form letter, one more German form letter. German publisher Books on Demand, which specializes in print-on-demand, filed a familiar “we join in the objections of Scott Gant and the foreign publishers” letter, but added a few paragraphs about how it believes the settlement doesn’t appropriately treat print-on-demand. As a publisher of print-on-demand books, it’s upset that it will have to compete with Google’s ability to gain licenses by default; it also therefore worries that books available through print-on-demand will be treated as Commercially Available.
• Four authors wrote individual letters to the court asking it to insert a definition for the undefined term “children’s Book” in the settlement. (Their proposed definition: “Children’s Book means any Book that is marketed to or read by or to children under 18 and/or used in elementary, middle, or secondary schools, including textbooks.”) They also ask for the settlement to add a Children’s Public Access service, available to public school libraries, and restricted to children’s books.
• Missouri filed unclaimed-funds objections much like those of the other objecting states.
• Author Andrea Warren filed a brief letter asking the judge to “[p]lease take a look at each and every issue around this settlement and keep in mind that the livelihood of writers—the creators of the product at stake—stand to benefit the least.” Author Donna Wood sent an angry letter both to the court and to her senators and representative in Congress.
• The Washington Legal Foundation, a non-profit that advocates for strong property rights, filed an objection (it’s a publisher, so it has standing to object) on class-action due process grounds. They go through the Supreme Court precedents on notice in some depth, and also raise some familiar issues about conflicts within the plaintiff class.

A number of the objections to the settlement hit the Berne Convention issues fairly hard. They claim that the settlement institutes new formalities or discriminates against foreign copyright owners, both things expressly forbidden by Berne. Bernard Lang’s paper also expresses substantial skepticism about the settlement’s compliance with Berne.

Well, now there’s a reply, and quite a serious one. Sam Ricketson, an Australian lawyer and professor and international copyright expert, has written a Berne analysis, and his bottom line is much more favorable to the settlement:

In light of the above, it is concluded that there is nothing in the GBS that falls foul of any obligation borne by the USA in relation to the Berne Convention.

My understanding is that he was asked to supply his sixteen-page paper as an outside expert opinion by Google, and that it reflects his most considered opinion and legal judgment. Though the paper is short, it’s dense, and he responds in detail to the arguments made against the settlement.

One of his most interesting arguments is to compare the Google settlement to the national collecting societies for various media in many non-U.S. countries, in particular the Scandinavian ones. In many cases, the settlement comes off better in the comparison. If they impose similar requirements (i.e. claiming one’s works), then condemning the settlement would require condemning the collecting societies, too.

Ricketson also gives the most nuanced reading I’ve yet seen of the degree to which United States courts must give heed to Berne and vice versa. I found the following passages striking:

In most legal systems, the judiciary is independent of the legislative and executive arms of government, and the country concerned cannot be responsible for the decisions that are made by its judiciary in the exercise of their decision-making functions. This is quite unlike the case of legislative and/or administrative action that lies fully within the realm of that country’s legislature or executive government.

If the criticism is directed at Rule 23 as a piece of subordinate legislation or administrative rule that is ultimately within the control of the state to determine (which may or may not be an accurate statement as a matter of US constitutional law), it is nonetheless a rule of general application that is not directed to any specific form of dispute, and certainly not to copyright disputes. In this regard, a sharp contrast is to be drawn with respect to the specific legislative rules adopted in Scandinavian countries in relation to the extended collective licensing schemes referred to above.

I lack the background to fully evaluate Ricketson’s analysis. Much of it seems persuasive, but I thought the same thing about some of the Berne objections, too. This is an area in which I’m out of my depth. In any event, this paper will surely be interesting to settlement-watchers, and thus I pass it along for your consideration.

Andy Oram:

If people wanted control over where they’re aggregated, I supposed something equivalent to a robots.txt file could be invented. But it’s not sporting to refuse to be counted. And there’s no point in invoking privacy concerns—face it, if the NSA wants to read your tweets, they’ll find a way.

Chris Messina and Jyri Engeström:

As a user, consider how much control and security you really want over your online identity. How do you feel about leasing an identity from a web brand? Unsure about the benefits of owning your own?

These are so different from what people who are not total Web-heads mean by “privacy” and “control” that it might as well be software from another planet.

Timothy B. Lee, The Libertarian Case against the Google Book Search Deal, Cato@Liberty (Sept. 14, 2009):

I was (and still am) firmly on Google’s side on the copyright claims at issue in the lawsuit. But the proposed settlement is another matter. …

The fundamental problem with the settlement is its audacious use of class action law. As my former colleague Mark Moller has argued, the aggressive use of class action law raises fundamental issues of fairness, due process, and the separation of powers. …

This danger is especially acute in the Google Book Search case because of the incredibly broad scope of the class the plaintiffs purport to represent: all authors of books still under copyright in the United States. The settlement class doesn’t just include authors and publishers of still-in-print works, who are relatively easy to contact and can opt out of the settlement if they don’t like its terms. It also includes the copyright holders for millions of “orphan works” — works that are in copyright and whose authors cannot be located. These copyright holders are, by definition, difficult to find. The settlement effectively expropriates these absent parties for the benefit of Google and the large publishers leading the lawsuit.

I find interesting the similarity between Lee’s libertarian concerns and my own progressive concerns:

The final problem is procedural. The settlement was negotiated in strict secrecy by a small group of lawyers, and then presented to the public as a fait accompli. That would be one thing if this were a purely private settlement between a few litigants, affecting only their own rights. It’s not, though. The original lawsuit was a class action, effectively behalf of everyone who’s every written or published a book. Other than the handful of authors and publishers who were directly represented, none of the millions of other plaintiffs was in on the negotiations. Neither was the public at large.

Although I focus on the reader side of the copyright equation and Lee focuses on the author side, our points are fundamentally about the same thing: the rule of law. This emphasizes to me that, in fact, the Google Book Search settlement isn’t particularly political in the partisan sense. You can make a progressive argument that it’s good for access or bad for privacy; you can make a libertarian case that it’s bad for property rights or good for disruptive innovation. I’ve written about the settlement for the American Constitution Society and Campus Progress because they were interested, not because I felt that the issues inherently tilt left. I’d gladly also explain why my concerns should resonate with libertarians—but it looks like Lee has that angle well covered.

UPDATE: Don’t miss Tim’s follow-up post. He had a conversation with Google’s Derek Slater, and blogs about it. Both Slater’s points and Tim’s replies are interesting and important.

Well, I was wrong about the pace tailing off significantly. Eight-eight new filings today, and the clerk’s office was still uploading one every few minutes when 5:00 hit. They’re getting a less interesting, though, as there are more and more duplicates in the mix. Today, we saw:

• Twenty-seven more German publishers, two French publishers, two Dutch publishers, six New Zealand authors, two Spanish publishers, and seven more Germans signing a different (but still painfully familiar) letter. All these numbers are approximate, since some of them may be duplicate scans of the same letter.
• Proskauer Rose moved to withdraw as the attorney for the Canadian Standards Association due to a late-discovered conflict. Oops. Fortunately for the CSA, the firm of Benesch Friedlander subbed in.
• Mumia Abu-Jamal objected to the settlement, in a typewritten letter sent from death row. (The “J” on the typewriter he used is faint, so the clerk’s office put the letter online under “Mumia Abu-Tamal,” but it’s definitely him.)
• The American Psychological Association objected to the settlement. Their objection only goes to the $60 per work digitized, which they think is unfairly small. (If they’re right, then this case probably can’t be settled at all, on any terms, and it’s either fair use all the way or the lawsuit bankrupts Google.) Their most interesting specific argument is that Google willfully infringed their books, because they sent Google a letter with a list of titles not to be scanned, Google confirmed receipt of it and confirmed that the list had been uploaded, and that Google nonetheless has scanned almost a thousand of the APA’s titles. On the whole, it’s not as strong an objection as it could have been. For one thing, the APA told Google not to scan works dated as far back as 1894—works that would appear to be unambiguously out of copyright. For another, the objection is notably devoid of any claim that the works Google digitized appeared on the list sent by the APA, or that they weren’t digitized before Google received the letter. While Gillian Spraggs has noted in a comment here that the APA’s facts could be used to make a case against Google’s trustworthiness, that’s not the case the APA actually makes. Instead, the objection’s entire import is “I want my two dollars!” The APA does not come across well.
• Japanese author Takashi Yamomoto and publisher Gendaishicho-shinsha filed objections. The non-profit that owns the copyrights of the late Akiko Ikeda “express[ed] [its] rejection to the Settlement” and opted out.
• Author Regina Harris Baiocchi opted out on the web site, but, just to be sure, sent a letter to the court, as well. Robert Massie opted out via letter to the settlement administrators, but then they sent him another notice, so he sent a letter to the court as well. And oh, yeah, Massie is a former president of the Authors Guild, so while he shares their high-protectionist attitude, he’s quite willing to say that the Guild doesn’t represent all American authors.
• The Jenny Darling & Associates literary agency filed what appears to be an objection (only the last two pages were scanned), claiming that Australian authors can’t claim their $60 payments without getting taxpayer IDs from the US, which they can’t do without providing the IRS proof of their identity, which requires a Hague Convention notarization with apostille, which will run AUD $290. I don’t know whether this chain of reasoning is true, but if so, it’s a powerful point.
• Author Alex M.G. Burton objected (in a full brief) on a variety of familiar grounds—plus an argument that many members of the plaintiff class lack standing to sue, and thus can’t be included in the settlement class. The Supreme Court will pass on this one soon—in a case set for argument the same day as the fairness hearing.
• Authors Jean L. Cooper, Stephanie Golden, John Mauldin, and Jesse Rutherford filed short letters of objection. Vivian Vande Velde opted out, and then objected for good measure. Stephen Nachamovitch filed a letter with thoughts on censorship, the public domain, and writers’ rights.
• Author Lynne Finney opposes the settlement, and she filed an absolutely scathing letter that seethes with anger at Google and the Authors Guild. (Once again: great case to watch, because authors tend, yes, to be good writers.)
• Polish author Waldemar Łysiak opted out, and so did Massachusetts author G. Emil Ward.
• NSF International, which drafts safety standards, filed a brief, strange objection, complaining that the Google Books site includes outdated standards. I’m a fan of putting more teeth in the settlement (on privacy, for example), but I’m not sure that this one belongs in there. I would think that Google would be more than happy to have the NSF’s cooperation in identifying outdated standards as such.
• Sony/ATV Music went the EMI Music route and opted out its musical works, en masse, without specifically identifying the works in question.
• The Left Coast Press filed an objection concerned about the settlement’s effects on small publishers like themselves.
• Author and lawyer Holly Towle objected to the settlement in a letter that includes a photograph of the crowded computer terminals in the Seattle Public Library. (Well, I think they’re crowded; it didn’t reproduce that well in the scan.)
• The Writers Union of Canada filed a letter objecting to a few aspects of the settlement, but expressing appreciation of its plans to create the Registry.

The court started uploading scanned paper filings again today promptly at 7:30 AM. The pace is down, though—only forty so far.

Todays filings were a lot quicker to sort through than yesterday’s. For one thing, many of them were yesterday’s: I counted sixteen duplicates of previous scans. For another, many more of them fit into well-trodden templates:

• Thirty-five more German publishers, four more French publishers, two more New Zealand authors, four Swedish publishers, seven more Dutch publishers, and an Italian publisher filled objections substantively identical to ones we’ve seen before.
• Seven German, Austrian, and Hungarian publishers filed their own objections substantively identical to one I’d seen before; I think the connection is that they’re all affiliated with Westermann
• Ten more members of the Hachette publishing group filed their own versions of an objection made by other members of the group.

In terms of genuinely new filings, the day brought:

• CUNY is a real hotbed of accessibility. Two more groups affiliated with CUNY filed letters supporting the settlement for its pro-access features.
• The University of Michigan Library, another Google scanning partner, filed a letter in support, penned by Paul Courant. In addition to familiar accessibility themes, it describes preservation and curation benefits.
• Jo Tatchell, from Rookery Nook, Hazelbury Hill, Box, Wiltshire (I love these English place names!) filed a brief letter of concern about royalty rates and the international definition of “in print.” Authors Steven Cox, Ann Douglas, Susan Gordon, Diana Kimpton, and Michael Kincaid also submitted short objection letters, but from less euphonious addresses.
• The Lewis/Hyde motion to intervene—which has already been denied—showed up on the electronic docket.
• The American Association of Petroleum Geologists filed a letter objection. Among other things, they’re ticked off that even as they were in the Partner Program, Google was scanning without permission their books from library shelves.
• Avotaynu, a Jewish genealogical publisher, filed a one-page letter of objection.
• Further Japanese objections—generally similar to ones already noted here—from authors Jiro Makino and Iwao Kidokoro and publisher Kobushi Shobo.
• Author David Meininger, represented by counsel, filed an objection that targets some familiar themes: Registry oversight, subclasses of the plaintiff class, excessive attorney fees, and the inadequacy of the cash payments in comparison with the statutory damages available under copyright law.
• Author Michael Perry of Inkling Books—one of the original group of authors who asked for and won the four-month delay—filed a longer, more discursive letter to the court. It has a gentle tone (it thanks the judge for “taking time out of your busy schedule to read my remarks”) but is strongly critical of the settlement.
• A joint filing from the attorney generals of Pennsylvania, Washington, and Massachusetts raises objections to the treatment of unclaimed funds much like those raised by the AGs of Connecticut and Texas. I found this letter to be particularly clear; if you’re trying to figure out what the unclaimed-funds argument is about, start with this one.

And that brings us up to now. It’s not clear how much else is sitting in the court’s files—the uploading today stopped right on the button at 5:00, so I don’t think the end of the uploads today signifies anything other than the arrival of the weekend.

Looks like Facebook’s query API leaks more information than it ought to—and that with some clever combinations of searches you can reconstruct an awful lot of information about people even when their privacy settings are cranked to the max. Getting the platform privacy right for social software is so hard as to be impossible.

Hat tip: @cshirky

The court is busily scanning hard-copy filings. There were 200 yesterday alone. Here’s my tally:

• A fair number of already-noted electronic filings were redocketed as the clerk’s office scanned the courtesy hard copies as well. The clerks made a fair number of errors in the scanning. Some documents are unreadable, and others are misassociated with the metadata from some completely different filing. As a result, all totals in here are approximate.
• Pam Samuelson’s crackerjack letter on behalf of an all-star group of academic authors objecting to the settlement with concerns about how it “will affect the cultural ecology of public access to books” reached the electronic docket. If you read only one objection, read this one.
• Some eighty-nine German publishers filed one-page letters telling the court that they joined in Scott Gant’s objection and in the one I like to call Harrassowtiz. Somewhat ironically, the letter template noted, “not do we wish to burden this Court with duplicative filings.” Yes, they avoided submitting lengthy briefs, but I would have thought they could all have signed on to a single letter. On the upside, some of them have wonderful letterhead.
• Sixteen Swedish publishers did the same.
• The publishers associations of Denmark, Norway, Sweden, and Finland submitted letter objections—both individually and together.
• Another dozen Dutch publishers filed the same form letter in objection that fourteen already have.
• The New Zealand Society of Authors and nine individual New Zealand authors filed substantially identical letters of objection claiming standard Berne and notice problems—and also denying that the court has jurisdiction over them in the first place.
• CDT’s brief, as expected, hit the docket. It walks an interesting middle line: the settlement should be approved but the court should order that Google’s implementation of the settlement should conform to the Fair Information Practices.
• Questia’s brief in objection also hit the docket. This one raises some familiar points about competition and copyright from the perspective of a competitor that sees itself as having “played by the rules”—not using works without explicit permission.
• Remember the Media Exchange? They filed a brief that asks the court to affirm “the legal reality that an owner who has lawfully purchased a book is not committing a crime by digitizing that book for his or her own personal use and that they have the right to authorize third parties to do this on their behalf.” Their business model is to digitize physical books sent them by members, and then using DRM to ensure that only one user can access the digital copy at a time. The brief argues that the Media Exchange’s solution is all around better than Google’s.
• The state of Texas filed its own objections to the Registry’s handling of unclaimed funds under its charitable trusts law.
• The Syndicat National de l’Edition—the French national publishers’ association—filed a detailed objection with extensive complaints about Google’s power and the poor quality of its database, in addition to Berne and competition concerns. Two French publishers sent in their own letters joining its objections.
• Judge Chin denied the Open Access Trust and ASMP motions to intervene, and also denied the Harold Bloom group’s discovery request. The ground of denial in both cases was the same: this case has been going on for years and you had plenty of time before to bring this up. He did, however, indicate that he would take their concerns into account as objections.
• The court approved a number of routine procedural matters, granting pro hac status to three attorneys and letting the CCIA file its amicus brief.
• Frequent Lab commenter Ed Hasbrouck opted out by filing a letter with the court. Readers of Lab comments will be familiar with his concerns, which are also described in his Google Books and Writers’ Rights. I was particularly struck by his first point in the letter—that he’s afraid of being swept into the class (and thus bound by the settlement) but then determined not to be a “Rightsholder.” It’s a nice way of putting a sharp point on the deep discomfort some authors feel with the Author-Publisher Procedures.
• EMI Music Publishing opted out with the kind of aggressive neener-neener letter only a lawyer could write. The letter was especially pointed on a procedural issue: EMI (which owns over a million musical copyrights) simply refuses to go to the settlement website and tell Google which works in particular it’s opting out. It takes the position that it has no obligation to, and that it’s Google’s job to figure out which works it needs to steer clear of because EMI owns them. That strikes me as right, given the logic of a class-action settlement. Indeed, the detailed notice is careful to say in the fine print that the plaintiffs only “request (but do not require)” that copyright owners identify their works.
• The AAUP submitted a letter asking for an academic representative on the Registry’s board.
• The library associations’ supplemental comments hit the docket. The comments respond to developments since their initial comments in May, most notably Google’s amended agreement with Michigan. The libraries’ concerns themselves—pricing, censorship, privacy, and Registry diversity—are largely unchanged. The International Federation of Library Associations filed a letter signing on to the American librarians’ positions.
• The UK Authors’ Licensing and Collecting Society, which plays a role somewhat like the one the Registry would play, sent in a letter praising the settlement as a “pragmatic” solution to the tension between public-serving uses and authors’ rights.
• The UK Booksellers Association sent in a set of recommendations (that include an “executive summary”) generally critical of the settlement. They’re concerned, among other things, with the effects of the settlement on bookshops, and want some form of compulsory licensing. David Drummond’s announcement yesterday comes closest to satisfying their concerns, although I have trouble seeing that being a Google reseller is a viable long-term strategy for most bookshops. Their future is looking fairly bleak, whatever happens to the settlement.
• Diane Aronson, an editor, sent in a letter noting the importance of photocopying in the editing process, and asking the court to ensure that the settlement enables free downloading of passages of limited length for scholarly or critical purposes.
• The German Coalition for Copyright in Education and Society filed a letter raising open access concerns and making recommendations for improving the details of the settlement in open-access friendly ways.
• The Competitive Enterprise Insitute filed a letter arguing (contra the ALA, EFF, etc.) that the court should not mandate privacy protections in the settlement. Consistent with its free-market orientation, the CEI believes that consumers can vote with their wallets over the level of privacy protection they desire.
• More of Google’s library partners filed letters in support of the settlement. I saw new ones from Cornell, the CIC, the University of Virginia, Stanford.
• Gregory Crane, the Editor-in-Chief of the fabulous Perseus Project, wrote in support of the settlement. It’s a beautiful letter; he draws on his experience as a classicist to explain the difference that access to texts and scholarship can make. It’s not an unambiguous endorsement either; he notes the open-access concerns raised in the University of California faculty letter, but regard those concerns as issues that ought to be addressed so that the overall project can move forward.
• More groups concerned with accessibility and equality filed letters in support of the settlement: CUNY LEADS, the Leadership Conference on Civil Rights, and NAFEO. The National Grange (“the nation’s oldest national agricultural organization”) had a nice, succinct letter pointing out the benefits for rural libraries and distance learning. The best of the bunch was a letter from Lateef Mtima and Steven Jamar of Howard University’s law school, which praises the settlement’s potential to close the digital divide; they take the arguments they’re opposing seriously and respond in principled ways rooted in copyright policy.
• More objections from the Japanese: the Japan Visual Copyright Association and authors Shojiro Akashi and Motohiso Ohno. A group of Japanese publishers were kind to us settlement-watchers and filed their letters of objection as a single packet. (Unfortunately for my ability to comment, the letters were all in Japanese.) On the other side, the Japan Writers Association filed a letter in support of the settlement.
• Twenty-one literary agencies in the U.K. filed a joint letter asking the court not to certify the class with respect to foreign rightsholders. They think better notice would have been “trivial” if Google had just run ads on its heavily-trafficked sites telling potential class members to click through for information about the settlement.
• Giles Sandman-Allen submitted a one-page letter requesting a modification of the Author-Publisher Procedures to take better account of how reversion of rights works under foreign copyright law. (His example is that in the U.K., rights automatically revert to the author’s estate 25 years after his or her death.)
• The Dr. Seuss estate wrote a short letter in praise of the settlement.
• Stuart Bernstein and Susan Bergholz, literary agents, filed letters of objection. They’re concerned both about intrusions on their clients’ rights and about the practical difficulties of opting out and managing rights under the settlement’s procedures.
• Mary Lynn Cabrall, author, asked Judge Chin to reject the settlement as a matter of right and wrong: she sees Google as an obvious wrongdoer that’s now being rewarded for its “stealing.” I don’t agree with most of what she says, but her letter is charmingly written. (That’s one of the benefits of watching a major literary-copyright case: there’s lots of eloquence on display.) Other authors with highly personal letters of objection: Jesus Gonzalez, Mark Levine (also a lawyer and it shows), Salley Shannon, and Jay Starkman.
• Harry Lewis and Lewis Hyde, the prime movers behind the Open Access Trust’s intervention attempt, each filed a brief letter of objection.
• The Uniform Law Commission joined with the American Law Institute’s objection—not a broad objection to the settlement, only a focused argument that the Uniform Commercial Code should not be swept up into the settlement’s programs.
• The Science Fiction and Fantasy Writers of America (whose acronym contains only one “F”) filed objections. Some reflect their specific interests, such as the point that none of the named plaintiffs is an author of adult trade fiction, and that the settlement doesn’t adequately contemplate publishers of fiction in anthologies.
• Lawprof Raymond Nimmer and lawyer Jeff Dodd filed a letter objecting to the settlement as a kind of “eminent domain.”
• Israeli publisher Shocken Publishing House filed a letter with commentary on the settlement, primarily objections. For example, Shocken believes that in a small country such as Israel, the Public Access service alone could undermine their market. Shocken itself has opted out, but wrote the letter to advise the court to restrict the settlement’s international effect.

And that’s just yesterday. As I type this, there are 108 more filings from today waiting for me to look at. My original plan was to spend the next week writing in detail about all of the filings. It appears I’m going to need to devise a new plan.

As always, the Public Index elves are hard at work uploading everything.

The video of yesterday’s fireworks-filled hearing is online at the hearing website. If you’re lazy, here’s a direct video link.

I’d be more impressed by the British government’s apology for its treatment of Alan Turing if the statement mentioned any of his contributions to computer science. Not that his code-breaking wasn’t important, too, but do the words “Turing machine” or “Turing test” ring a bell?

I didn’t catch the whole hearing today. I started out my IP class watching the live stream—I’d interrupt now and then to provide them with context—but when the committee took a vote break, I switched the class over to patentable subject matter and we never switched back.

One other thing I noticed while I was watching was a bit from the Authors Guild’s Paul Aiken. When David Drummond announced Google’s expanded reseller program, Aiken noted that it would primarily affect out-of-print books. Reuters gives this anodyne version of what he said:

The announcement would affect most of the books available through the Google book scan project since most authors with books in print would decide not to sell through Google, said Paul Aiken, head of the Authors Guild.

What I thought I heard (possibly garbled in the chaos of setting up the system for my class) was him saying that authors got such a good deal under the settlement that publishers would do anything they could to sell through the Partner program or not through Google at all, rather than split the take with authors the way that the settlement dictates. That’s why the settlement would only really matter for rights-reverted out-of-print books. If he’s telling the truth, doesn’t this confirm the main point made by William Morris in its advice to its authors—that many publishers will be removing their books en masse from the settlement programs, such that the actual economic terms of the settlement won’t matter very much much of the time? It now sounds as though the AG and WME are in agreement that the settlement is really only a big deal for out-of-print, and especially orphan books. Which would all go to confirm the intuition that started me down this road: this is about the orphans.

In his testimony before the House Judiciary Committee today, Google’s David Drummond announced that Google will sell access to books through third-party resellers, such as Amazon or Barnes and Noble. He pitched it both as a natural extension of Google’s plans to make books available in many forms, and as yet another answer to complaints that Google will be locking up the market for books. I’m having trouble getting clarity on exactly what Google plans to offer. Their blog post says only:

He announced that for the out-of-print books (including orphan works) being made available through the Google Books settlement, we will let any book retailer sell access to those books. Google will host the digital books online, and retailers such as Amazon, Barnes & Noble or your local bookstore will be able to sell access to users on any Internet-connected device they choose. Retailers can also pursue their own digitization efforts of out-of-print books in parallel.

I believe I also heard him say that Google and the resellers would “split” Google’s 37% share under the settlement, and that Google didn’t intend to take a large slice of it. So far, this resembles an affiliate marketing program; the service on offer is still fundamentally Google’s, although others may run the storefront. It is not the kind of compulsory compensated sharing of scans that, say, Gary Reback and the Open Book alliance have called for. I would love to think more carefully about the extent to which this program would meet their and similar objections—but first, I need more details! Anyone able to share more information? Googlers, this means you …

In the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress. The settlement is not merely a compromise of existing claims, or an agreement to compensate past copying and snippet display. Rather, it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come. We are greatly concerned by the parties’ end run around legislative process and prerogatives, and we submit that this Committee should be equally concerned.

As outlined below, the Copyright Office also believes that some of the settlement terms have merit and should be encouraged under separate circumstances. For example, the creation of a rights registry for book authors, publishers and potential licensees is a positive development that could offer the copyright community, the technology sector and the public a framework for licensing works in digital form and collecting micropayments in an efficient and cost-effective manner. Likewise, the promise to offer millions of titles through libraries in formats accessible by persons who are blind and print disabled is not only responsible and laudable, but should be the baseline practice for those who venture into digital publishing. The ability of copyright owners and technology companies to share advertising revenue and other potential income streams is a worthy and symbiotic business goal that makes a lot of sense when the terms are mutually determined. And the increased abilities of libraries to offer on-line access to books and other copyrighted works is a development that is both necessary and possible in the digital age. However, none of these possibilities should require Google to have immediate, unfettered, and risk-free access to the copyrighted works of other people. They are not a reason to throw out fundamental copyright principles; they are a pretext to do so.

In the testimony below, we will address three specific points. First, we will explain why allowing Google to continue to scan millions of books into the future, on a rolling schedule with no deadline, is tantamount to creating a private compulsory license through the judiciary. This is not to say that a compulsory license or collective license for book digitization projects may or may not be an interesting idea. Rather, our point is that such decisions are the domain of Congress and must be weighed openly and deliberately, and with a clear sense of both the beneficiaries and the public objective.

Second, we will explain why certain provisions of the proposed settlement dramatically compromise the legal rights of authors, publishers and other persons who own out-of-print books. Under copyright law, out-of-print works enjoy the same legal protection as in-print works. To allow a commercial entity to sell such works without consent is an end-run around copyright law as we know it. Moreover, the settlement would inappropriately interfere with the on-going efforts of Congress to enact orphan works legislation in a manner that takes into account the concerns of all stakeholders as well as the United States’ international obligations.

Finally, we will explain that foreign rights holders and foreign governments have raised concerns about the potential impact of the proposed settlement on their exclusive rights and national, digitization projects. The settlement, in its present form, presents a possibility that the United States will be subjected to diplomatic stress.

“Diplomatic stress” is a great term.

Marybeth Peters from the Copyright Office just gave her opening statement, and it is clear now that her office is deeply skeptical of the settlement. She said, “Key parts of the settlement are fundamentally at odds with the law.” In addition to the copyright issues—domestic and international—she also suggested that it may be Constitutionally problematic. In her words, it’s “making a mockery out of Article 1 of the Constitution.”

(I’m quoting on the fly, the wording may not be exact—but the sense is clear.)

This is a big deal. I would be shocked if the government’s filing next week did not incorporate many of her concerns. (Yes, it’s just the DoJ filing, but since the federal government has otherwise been silent, I expect it to represent the views of all relevant executive branch agencies.) And the opposition of the Copyright Office’s boffins would be a very serious issue for Congress and the courts.

(UPDATE: Corrected to fix Marybeth Peters’s first name, which is one name, not two. We regret the error.)

I’m seeing a flood of items hitting the court’s electronic docket this morning. It would appear that the clerk’s office is scanning all the letters and briefs filed in hard copy. We will, of course, post them all at the Public Index, but I only expect to blog here about ones that raise novel issues or are in some way surprising.

Does it ever?

James Grimmelmann, Con: Hold on. Google manipulated the legal system to get what it wanted, part of an op-ed exchange with at Campus Progress:

Progressives should be worried about the Google Book Search settlement, which may or may not be approved by a federal judge soon. That doesn’t mean they should necessarily oppose it—but rather that they should be concerned about its consequences. This isn’t a partisan political issue; there are also libertarian and conservative reasons to be worried. On the progressive side, though, the settlement raises serious issues about equality, fairness, and a participatory political process. …

My sparring partner is Jake Stillwell of the United States Student Organization, and his “Pro” is also well worth reading.

Man, tomorrow’s House Judiciary committee hearing has some real heavy hitters:

• David C. Drummond, Senior Vice President of Corporate Development and Chief Legal Officer, Google Inc.
• Paul Misener, Vice President of Global Policy, Amazon.com
• Marc Maurer, J.D., President, National Federation of the Blind
• John M. Simpson, Consumer Advocate, Consumer Watchdog
• Paul Aiken, Executive Director, Authors Guild
• Marybeth Peters, Register of Copyrights, U.S. Copyright Office
• Randal C. Picker, Paul H. and Theo Leffmann Professor of Commercial Law, University of Chicago Law School
• David Balto, Senior Fellow, Center for American Progress

Some of their testimony will be predictable, but I wouldn’t be surprised if there are surprises.

Two interesting letters crossed onto the court’s electronic docket today:

• A group of Stanford computer science faculty invoked Arthur Clarke and appeals to “our collective imagination” in support of the settlement.
• Two Harvard faculty from the Program for Evolutionary Dynamics praise the settlement for the Research Corpus.

As always, the Public Index will have these soon.

I’ve also received paper courtesy copies of amicus filings from Questia Media (in opposition) and from a coalition of 21 UK literary agencies (in support of neither party), neither of which is showing up on the docket yet. My understanding through the rumor mill is that the court has been inundated with amicus letters and briefs, and that they’ll become available electronically as the clerk’s office scans them. It’s funny, you’d hope there’d be some kind of automated process for scanning a large volume of paper documents and getting them online quickly in standardized formats. Maybe someone should get on it …

Confidential to filers: If you have sent in a filing to the court in hard copy form, you can jump the line and get your document on the Public Index faster (and in higher-quality, too!) by emailing me a copy directly.

The Wall Street Journal’s Law Blog is reporting that Denny Chin is up for a Second Circuit appointment. He’s been a smart, hardworking district court judge (even if his Cablevision decision was perhaps too smart for its own good), with a great reputation, so he seems like a natural choice. But yoinks! Losing yet another judge (Chin got the case when Judge Sprizzo passed away) would sure drop a wrench into the Google Book Search case’s gears. Then again, the prospect of escaping from the mountain of paper landing on his chambers must seem like an attractive prospect this week …

Hat tip: Eric Goldman

You may have already guessed how this works.

When you put together the presentation, the logo from the previous meeting—the size you originally showed—is number 5, not number 1, and the options are all incrementally smaller, not incrementally bigger. But notice that you never claim otherwise. You say only that you’ve “changed the size ever so slightly”—true. You say, as you lay them out, “Here’s number one…two’s a little bigger…a little bigger again…” etc.—true again! Even your (admittedly cruel and perverse) advocacy for option 4 is based on an unspoken but nonetheless legitimate realization that the logo was actually too big in the first place, not too small. If you are very careful, you never have to lie at all.

The lighting-designer version of this is to tell the director that yes, you can make the lights brighter, but you’ll need to turn off the power for a few minutes while you change some of the wiring. Turn everything off, wait fifteen minutes while the director’s eyes adjust to the dark, then turn everything back on. It sure does look brighter now, doesn’t it?

Fortunately, I never had to use this one.

I haven’t always been good about this in my blogging, but let me try to clear up some terms that can be used to describe the various filings around the settlement.

I prefer to describe this as a suit between named plaintiffs (the Authors Guild, the AAP, five authors, and five publishers) and Google. The plaintiff class includes everyone who holds a copyright in a book, subject to various exclusions. I don’t like to say just “plaintiffs” because it’s ambiguous between these two possibilities. If I want to add Google to the mix, my preferred term for the named plaintiffs and Google together is settling parties, which emphasizes their role in jointly proffering the proposed settlement. Parties is the general legal term for those who are actually “in” a lawsuit and will be bound by its outcome.

The judge can either approve or reject the settlement. If he rejects it, the settling parties (and no one else) are allowed to modify it and submit it again for approval. Note that this may give the judge a practical modification power: he could reject the settlement while saying what changes would make him willing to approve it. But formally, the judge’s choice is only to approve or reject.

Members of the plaintiff class had three choices: * They could of course do nothing, which effectively meant staying in the class and being bound by whatever happens.
* They could have chosen to opt out, which removes them from the class and means they are not bound by the settlement. Note that they did not need to supply any reason for an opt-out; they could just check the appropriate boxes on a form sent directly to the settlement administrators. Some members did explain their choices, either in letters to the court or in public statements (e.g. this FAQ from Thomson Reuters Legal). * They could have filed an objection with the court. Formally, objectors are still part of the plaintiff class but disagree with the choices made by its lawyers. Objections contain legal arguments telling the court why it should reject the settlement.

Some objections took the form of letters to the court; others were briefs. A letter is just what it sounds like; it’s mailed or faxed directly to the court and is less formal. A brief is the all-purpose format for legal arguments; it has a more rigid structure and needs to be officially “filed” through the court’s electronic system. Letters tend to run between one and ten pages, briefs from ten to fifty. Briefs are more typically written and filed by lawyers, letters by individuals or organizations themselves, but there are exceptions in both directions.

Some non-class members also want to influence the judge’s decision. Most of them do so as an amicus curiae, which is Latin for “friend of the court.” An amicus is not a party, and the court is free, if chooses, to completely ignore what the amicus says. An amicus could choose to support (or be “in favor of”) either side in the suit, or neither. It’s helpful to say that some of the amici here support the settlement, while others oppose it. (It’s best not to say that they “object,” as that confuses the issue of whether they’re amici or objecting class members.) Like objectors, amici can express their views in either a letter or a brief.

The final remaining category of participants contains those non-parties who what to become parties—either because they hope to obtain benefits only available to parties, or because they want to force the judge to consider and respond to their arguments. They can file a motion to intervene in the lawsuit; if it’s granted, they become parties.

He uses two different data sets—one on books in print and another on titles published. Both give very similar answers under plausible assumptions: close to 600,000 orphan works. His number, which seems credible given the data he works from and his model, suggests there are enough orphans out there to matter, but that most books are not orphans.

UPDATE: David’s point is important. That’s an estimate of 580,388 orphan work books.

There are good reasons to worry about the Google Book Search Settlement, as I explained at length here. But of all of the reasons to oppose it, this utterly surreal statement is my favourite:

European officials fear that if the Google project goes ahead in the US, a yawning transatlantic gap will open up in education and research.

“Oh my God! The Americans are about to create a private workaround of the enormous mess that we regulators have made of national copyright policy! They will fix the unholy legal screwups that leave most of the books of 20th century culture unavailable, yet still under copyright! They will gain access to their cultural heritage — giving them a huge competitive advantage in education. This MUST BE STOPPED!! No one can be allowed to fix this for any other country because then we would be left alone stewing in our own intellectual property stupidity! We must forbid their progress in order to protect our ignorance.”

But wait, there’s more. If anyone does do it, it must be the state! (Which so far has failed completely to provide legal access to orphan works or commercially unavailable works, works that are unavailable because of… wait for it, wait for it, the state locking up our cultural heritage unnecessarily)

From Connecticut’s brief:

Connecticut concurs with the Attorney General of Pennsylvania and other State Objectors who may join with Pennsylvania with regard to its objections to the proposed treatment of unclaimed funds under the proposed § 6.3 of the Settlement Agreement.

An amazing edugame about privacy and security online, presented in the form of overlapping IM windows social network site pages. I can’t begin to list the things it does right. It’s one of the best media literacy projects I’ve ever seen.

The e-filing spigot came back on late last night. Between then and the 10:00 AM deadline today, interested parties filed about a hundred documents with the court. Here’s what’s going down:

• The Cornell University Library filed a two-page letter endorsing the settlement, whose “potential benefit … to researchers is inestimable.” It echoes some of the library associations’ concerns about excessive pricing and suggests “continued oversight,” but the overall tone is highly positive.
• Ten European members of the Hachette publishing family filed a coordinated set of objections. The objections are based in their status as European publishers who see the deal both as unfair to them and contrary to EU law.
• The Computer and Communications Industry Association filed an amicus brief in support of the settlement. The CCIA argues that the settlement is pro-competitive; its analysis is specifically focused on the kinds of high-technology issues in which the CCIA specializes. CCIA member Google is sure to be happy with the filing; CCIA members Microsoft and Yahoo!, not so much.
• Consumer Watchdog, having trimmed its amicus brief to 25 pages, filed to object, raising class action, court-Congress, Berne, and antitrust issues.
• Members of the Japan P.E.N. Club filed an objection. Their complaints echo many of those from the Europeans—abuse of Berne, notice problems, etc.—but also add a direct attack on personal jurisdiction. I think the Supreme Court’s Shutts decision (alluded to here a few days ago) eliminates the personal jurisdiction objection as to plaintiff classes—but I have never seen a case better designed to raise the question of whether Shutts itself is in error.
• The Canadian Stanards Association, filed an objection. The CSA specifically objects that the settlement doesn’t enjoin Google from scanning books published after the cut-off date of January 5, 2009—thus inviting Google to scan more books without permission and start the cycle of hate all over again.
• Sony filed its expected amicus brief in support of the settlement, citing procompetitive effects in the markets for e-books and e-book readers.
• The antitrust professors filed their amicus brief in support of the settlement. As expected, it’s a sharpened version of Elhague’s paper.
• Richard Blumenthal, the Connecticut Attorney General, filed an objection on two very interesting grounds. On the one hand, he objects to the settlement’s handling of unclaimed funds, arguing that state lost-property law applies instead. And on the other, he asserts that the court has no jurisdiction to bind the state of Connecticut.
• The EFF and its allies filed an objection on behalf of a group of authors concerned about privacy, including Michael Chabon, Jonathan Lethem, Bruce Schneier, and Jessamyn West.
• Authors Charles Weller and Dirk Sutro object to the plaintiffs’ attorneys fees and to the fact that the Registry will be supported out of authors’ and publishers’ 63%, rather than out of Google’s 37%.
• The Open Book Alliance filed a brief objecting to the settlement on antitrust grounds.
• The Harold Bloom coalition of authors filed a wide-ranging objection that cites copyright, antitrust, and class-action problems. In a tactically aggressive move, they also demanded discovery from the plaintiffs and Google on a number of points—including the secret termination agreement.
• The French Republic joined its neighbor to the east in formally objecting to the settlement (they share a lawyer but filed separate briefs). In addition to sounding some by-now-familiar European objections to the settlement, they argue that it will have harmful effects for cultural diversity.
• Yahoo! joined in the pile-on with an objection of its own. The most Yahoo!-specific argument is probably the one that the settlement will give Google an unfair advantage in the search market.
• The Internet Archive filed an amicus objection hitting the class certification issues hard.
• Lyrasis and two other library networks filed the most focused amicus objection I’ve seen: a challenge to the definition of “Institutional Consortium” in the settlement.
• The Free Software Association and Karl Fogel filed a short class-member objection that the settlement imposes unfair conditions on authors who wish to share their books freely (e.g. under the GNU Free Documentation License).
• Microsoft filed a class-member objection on court-Congress and class-action grounds.
• ProQuest filed an objection to the settlement “as a class member who has played by the rules of copyright and contract for decades and now risks being punished for that vigilance by the unintended consequences of an overly broad mass settlement.”
• The Songwriters Guild of America filed a brief class-member objection to the inclusion of printed music and lyrics in the class definition.

That’s a lot, but it’s not quite all. EPIC had its filing rejected by the clerk because they tried to file hard copy rather than electronically. (It also appears that the judge doesn’t like their desired procedural posture: intervention, rather than objection or amicus briefing.) I also didn’t see CDT’s brief on the docket, I believe there’s been a delay while their attorney is admitted pro hac vice. It’s also possible that a few other filings will crop up.

In any event, I’ve got my reading cut out for me. More thoughts here as I digest it all.

UPDATE: Yep, there’s more. Harry Lewis and Lewis Hyde—the would-be public-interest representatives in the lawsuit—have filed a motion to intervene, with full briefing. It seems like a long shot, in light of the court’s denial of EPIC’s motion to intervene, but they do seem prepared to fight it out. Their lawyer: Martin Garbus.

For the curious, we have the agenda from today’s hearing. It looks like there’s a great deal of interest — the speakers are being given six minutes each.

Wasn’t this a Doonesbury plotline?

The Financial Times reports:

The company has agreed to have two non-US representatives on the governing board of the registry that will administer the settlement, according to a letter sent to 16 European Union publishers’ representatives at the weekend, a copy of which has been seen by the Financial Times.

This is, of course, a direct response to complaints from European publishing groups about the U.S.-centric nature of the settlement and the Registry. I had heard speculation that there would be an explicit European presence on the Registry’s board, so in a sense, this is just confirmation by the parties of something rumored by others.

I thought this other announcement from the letter was also striking:

A spokesperson for Google on Monday said: “The parties to the Settlement Agreement have sent a letter to several national publisher associations in Europe to clarify that books that are commercially available in Europe will be treated as commercially available under the Settlement. Such books can only be displayed to US users if expressly authorised by rights holders.”

The commercial availability point has been raised, quite strongly, in many of the European filings. Even though the commercial availability test is just a default rule, it’s a default rule with serious consequences for publishers who don’t want their books sold online.

The timing of the letter is clear enough: this is meant to assuage fears in the run-up to today’s European Commission hearing. It’s not clear to me that Google and the plaintiffs are doing themselves any favors with this approach to doling out concessions right on the eve of significant moments of oversight. It sends a signal that if you push them hard enough, they’ll give some ground—but at the same time, the tone is more “grudging favor” and less “olive branch.”

I would like very much to see the letter and to post it at the Public Index. It’s clearly intended to be part of the public debate, and, as such, should be itself available to the public. Any reader who can obtain and forward will incur my gratitude.

You know, the Settlement really pushes the jurisdictional holding of Phillips Petroleum Co. v. Shutts about as far it’s possible to go.

Article XII of the Settlement provides, in part:

[T]he Class Notice Program will consist of the following: …

(e) Settlement Website — maintenance of a website dedicated to the Settlement and through which the Notice, this Settlement Agreement, and other relevant information (translated from English whenever appropriate) will be made available

This provision is echoed in the memorandum of law the plaintiffs filed in support of the motion to approve the Settlement (at page 23):

Plaintiffs and Google will maintain a Settlement website (such as, www.googlebooksettlement.com) dedicated to the Settlement and on which the Notice, this Settlement Agreement, and other relevant information (translated into approximately 35 languages) will be displayed.

Do you think these statements constitute a promise to translate the Settlement into these 35 other languages? Or is it only the “other relevant information” that will be translated? That depends on what you think the scope of the parenthetical phrase is. Does it reaches back past the commas to modify all three items in the list (“the Notice,” “this Settlement Agreement,” and “other relevant information”), or does the last comma limit its reach, such that it only modifies the last?

The Harassowitz objection assumes the former (at pages 6-7). I think that it’s the more natural reading, but it’s not the only possible reading. This distinction may matter, as it appears the Settlement wasn’t in fact translated into other languages. Thus, whether the parties complied with the notice provisions may turn on how to scope a parenthetical phrase.

Files from today’s filings may be slow to hit the Public Index; the same computer maintenance that caused an extension of the objection deadline also means that one can’t download the documents from the court. Here’s what happened up until 2:00 PM today, when the computers were switched off:

• DC Comics filed an objection. Presumably, it centers on the ambiguous status of graphic novels, which are both textual and non-textual, and thus half in the settlement and half out of it. But really, that’s just uninformed speculation on my part until I see the brief.
• Here at NYLS, we filed our amicus brief.
• Microsoft entered an appearance, presumably in preparation for filing an objection.

It was a slowish day, partly because it was short, and partly because I’m sure that many filers are saving their thunder for Tuesday and using the long weekend to hone their arguments.

As always, the Public Index ninjas are hard at work uploading everything into our organized collection. Today:

• The big news was the extension of the objection/amicus deadline until 10:00 AM next Tuesday. The opt-out deadline remains this Friday.
• Andrew DeVore’s literary heavy hitters filed a brief in objection. Arlo Guthrie is the lead; in addition to the names on the brief itself, the Philip K. Dick and Richard Wright estates, which have opted out, filed declarations with supporting facts. The brief makes some well-argued and carefully focused objections to particular provisions that could disadvantage authors (e.g. waiving non-copyright claims, and a particular unfairness to authors of Inserts). Interestingly it includes as an appendix a list of “Proposed Solutions” that would fix many of the objectors’ concerns; this is not a fundamental objection to the very idea of the settlement itself.
• Judge Chin granted Consumer Watchdog’s request to file an amicus brief. Judicial tea-leaf readers will want to parse his handwritten annotation very carefully: “This application is GRANTED, but in light of the volume of materials being submitted to the Court, I would suggest a 25-page brief would be more effective than a 40-page brief. As for permission to speak at the hearing, the Court will address this question in a future order. We need to see how many requests there are to speak. SO ORDERED.” Judge Chin just ruined a poor law-firm associate’s weekend, since those 15 pages aren’t going to slice themselves out. The “we need to see” bit is a nice, human touch; it gives everyone a good reason for the judge’s reluctance to say anything about the hearing schedule yet.
• A coalition of professional societies, led by the American Society of Media Photograhers, and calling themselves the Visual Arts Rights Holders, filed objections. They were left out of the settlement, in that the definitions specifically excluded non-textual works, and they feel that its structures significantly disadvantage them.
• Czernin Verlag, an Austrian book publisher, is joining in the wonderfully named Harassowitz objection from European publishing groups.
• Four more Dutch publishers sent in substantially similar letters of objection.
• Freelance author Michael Banks, who originally disliked the settlement, has changed his mind. He wrote a letter to the court asking it to approve the settlement. Author Filomena Pereira agrees, in her own short letter.
• A group of antitrust professors sought (and was granted) permission to file a brief in support of the settlement. The author is Harvard’s Einer Elhauge, whose paper on the settlement has some highly persuasive points, so I expect the brief to be top-notch.
• In some housekeeping matters, the judge granted various and sundry requests for admission pro hac vice.

It’s official. The deadline has been extended until 10:00 AM on Tuesday the 8th. Note, however, that the court’s electronic filing system will be unavailable starting at 2:00 PM tomorrow (Thursday, the 3rd) until 8:00 AM on Tuesday the 8th.

IMPORTANT: The order does not mention opt-outs. (Note that those go through the official settlement site, not the court, and so wouldn’t be affected by the electronic filing system in the first place.) This is not legal advice, but do not assume that you can wait over the weekend to opt out.

A little birdie tells me that the court may extend the filing deadline until Tuesday, as the ECF system may be down tomorrow and Friday. Of course, in the exercise of prudence, anyone considering filing should treat this Friday’s deadline as definitive until any extension is announced officially.

Cheyvonne Molino, 35, who runs an auto wrecking yard with her husband, said Phillip Garrido printed their business cards and often stopped by with his daughters. After his arrest, Molino said reporters hacked into her Facebook page and stole photos she had posted of Garrido’s daughters, who had attended a party for her daughter’s 16th birthday on Aug. 15.

L.A. Times, Media outlets paying for information in Jaycee Lee Dugard kidnapping case. It’s unclear whether “hacked” here means just “They saw it and I don’t know how” or something more specific.

Not sure how I missed these. Sorry.

• Consumer Watchdog, which wrote a letter to the Justice Department this spring, now appears to be preparing to file an amicus brief and to speak at the fairness hearing opposing the settlement.
• In addition to filing as part of the Open Book Aliiance, the Internet Archive plans to file its own brief with the court. It appears that both matters are being handled by Arnold and Porter.

I’m not quite sure how to classify this one. The National Writers Union wrote an open letter to former Vice President Gore, asking him to use his influence to slow down the settlement. Here’s the press release. Why him?

Gore is a Senior Advisor to Google and is said to be a friend of Google’s co-founders, Larry Page and Sergey Brin.

You can just feel the anguished howls in the letter:

The proposed settlement would give Google monopolistic control over access to many previously published copyrighted books and materials. It would also give Google a license to reproduce a writer’s copyrighted work unless the writer specifically tells Google to remove his or her work from the program. This is grossly unfair. No corporation should be able to profit from the work of our members without first obtaining their permission in writing.

This is also a strong theme in Europe, where the tradition of automatic authorial control is even more strongly entrenched. The U.S. has fair use, which creates at least some open-ended user rights, whereas the European approach relies on carefully defined exceptions and limitations. Also, the rest of the world has a long history of no formalities, while the U.S. was late on that boat.

I will say that “without first obtaining their permission in writing” is too strong a claim. Under U.S. law, oral licenses are valid. (Oral transfers of exclusive rights aren’t, but nonexclusive licenses don’t have to be written.) There are plenty of uses for which a writing requirement gets in the way, and both corporate profit and authorial success are fully compatible with a handshake or a verbal “yes.”

• A coalition of Dutch publishers sent in letters in opposition. I haven’t read through them all, but the letters appear to be substantially the same, just written out on each publisher’s own letterhead. The themes concern the inappropriateness of the U.S.-focused settlement for European rightsholders.
• Lynne Garner, of Foxglove Close, Bishop’s Gate, Bishop’s Stortford, Hertfordshire, filed an objection stating, “The extremely low amount being offered to authors whose rights have been infringed is unfair and unjust. An on-going payment should be received by the author (or their heirs) until the copyright has lapsed as set down in US law. If this ongoing payment is not forthcoming they should not be able to use the work as such time as the law allows them to.” As the settlement does provide for ongoing payments based upon sales and advertising revenue, this is not a persuasive ground of objection.
• Scott James (a/k/a Kemble Scott), author, filed what appears to be the same letter in objection he filed on August 10.
• Andrew DeVore, the lawyer who won the four month extension on behalf of the Steinbeck estate and other authors, filed an appearance on behalf of a smaller group of authors led by Arlo Guthrie. I expect an objection soon.
• Shirley Saed, of Dickstein Shapiro, entered an appearance on behalf of four professional associations for photographers and graphic artists, plus four individuals. Their specific position remains to be seen.
• Amazon, as expected, filed in opposition. The brief is a sophisticated blend of copyright, class action, and antitrust law.

Read the whole thing (along with Geoff’s original), but the short version is that Google is making a lot of already-existing mistakes in the metadata more visible.