Thursday’s fairness hearing was fascinating. Very little happened to substantively change where the case is going, but as a snapshot of the players and their positions, it was very revealing.

I was at the courthouse from 8:30 onwards, with the team of New York Law School students who’ve been working on the Public Index. We didn’t want to take any chances that we might not make it in. (Last time, we were among the very last people seated.) No worries there; we got great seats in the overflow room, and in the afternoon, in the courtroom itself. I’m very glad I had the student team along with me. Their observations and insights about the arguments and the lawyers were invaluable in helping me write up this post. Other than my conversation with them, I’ve avoided reading the press coverage; I wanted to provide a direct account of how I saw the day’s events, without being influenced by others’ takes.

At 10:10, the “All rise!” came through. I rose, even though I was seated in the overflow room. Call it conditioned reflex, or call it the proper reaction to having the darsan of the judge, which was no less real for being conveyed through the video link.

Judge Chin began by referencing the “voluminous materials” filed in the case, noting “We are working our way through them.” His questions illustrated familiarity with at least some of the filings, so my guess is that either his remarks referred to working out all of the issues in the filings rather than just to reading them, or that his chambers has carefully triaged the order in which they’re reading the various submissions.

He then announced that he wouldn’t be issuing a ruling at the hearing. This was completely unsurprising. None of the lawyers in the room expected a ruling then and there; judges essentially always take cases of this sort under advisement. No one will die if he waits. And given that he also announced he’ll issue a written opinion (again, wholly expected in a case this complicated), of course he’ll wait to draft it until he’s had the benefit of oral argument. After announcing that he had an “open mind,” Judge Chin then asked the speakers not to be repetitious in their remarks—advice not all of them heeded.

Lateef Mtima

First up was Professor Lateef Mtima from Howard University. He began with a stirring oration to the importance of education for society—an oration he then revealed was taken from Brown v. Board of Education. Observing that the first copyright act in the United States described itself as “an act for the encouragement of learning,” he argued that the educational goal of copyright requires broad access to copyrighted works—access that the digital divide renders “separate and decidedly” unequal for many communities. He therefore endorsed the settlement as a way of vastly expanding the knowledge available at every library, accessible to even the most disadvantaged members of society. It was an explicitly policy-based argument, more stirring oration than a set of legal claims. Other than an initial request to slow down for the sake of the poor court reporter, he drew no questions from Judge Chin.

Sony

Second, Janet Cullum from Cooley Godward argued on behalf of Sony, in favor of the settlement. Her arguments, which largely echoed the antitrust arguments made by Einer Elhauge and by the parties, were that the settlement made books more available than they would be otherwise, and would actually foster competition in the books market. There wasn’t much new in here, except for a well-delivered elbow to Amazon’s ribs: Google has made public-domain books available for download on Sony and other readers using EPUB, rather than locking them to one device. (The Kindle doesn’t speak EPUB natively; Amazon is the one making the lock-in play in that market.)

Judge Chin came alive during Cullum’s argument. He first asked why Sony, as a Google competitor, was arguing in favor of the settlement. Her reply was to point to the settlement’s overall nonexclusivity. What about orphan owners who don’t come forward, Judge Chin asked? Sony, she replied, saw that pool as shrinking over time. A couple questions down this line, he said that he was reading in some of the opposing briefs that competitors would need to invite and settle a similar lawsuit in order to get access to the orphan books. She replied that their path was made clearer by the lawsuit and by the “precedent” it would set.

That last word is potentially controversial. Pam Samuelson would later argue that one of the dangers of the settlement is precisely that it would set a precedent for future overreaching copyright class actions. In his defense of the settlement, Michael Boni would even emphasize that the present case is one-of-a-kind. While Elhauge and David Balto have used the possibility of me-too settlements to defuse any anticompetitive dangers of this one, it’s not clear that using the p-word in court actually does the settlement any favors.

National Federation of the Blind

Third, Marc Maurer of the NFB argued in favor of the settlement’s provisions for access by the disabled. His presentation was a distilled and cogent version of the NFB’s very well-argued brief. He started by noting that the NFB has 50,000 members, which led Judge Chin to crack the first joke of the day, “Many of whom are here today.” (And they were; there was also a substantial contingent of blind members of the audience in the overflow room.)

Maurer noted that there are perhaps 10 million books meaningfully out there that would be made available to the blind through the settlement’s extensive accessibility provisions. Currently, even though the blind spend a great deal of time and money trying to obtain books in accessible versions, at most 1 million are available to them at all. While digital formats would seem to solve many of these issues—with text-to-speech, large print, and assistive devices—most manufacturers have refused to help, and some publishers have refused to provide accessible formats. Google will. Like Mtima, Maurer delivered a strong policy argument strongly.

Paul Courant

Fourth, Paul Courant from the University of Michigan library system spoke in favor of the settlement. He’s a member of the author sub-class, and he said that most of his books are out of print, hard to find, and never profitable anyway. Scanning is vital to preservation, he continued, with books falling apart into cornflakes. But while preservation scans were previously proceeding at a pace of tens of thousands a year, Google is scanning at a rate of tens of thousands a week, making the Google Books project part of the solution to the preservation problem.

The alternative to the settlement, he argued, is not a utopia of access but the status quo. And while that status quo would provide UM with competitive advantages, he explained that UM was happy to forego those advantages in order to expand access for all. (He also explained, at the start, that he had conferred with the librarians at the rest of the Big Ten, who were in substantial agreement with his remarks.) His closing line was that the settlement was “a great bargain, in the best sense of the word.”

Center for Democracy and Technology

John Morris gave the fifth and final pro-settlement argument. His presentation was an interesting transition to the opponents, though, because while CDT strongly supports the settlement’s increases in access, it’s also concerned about privacy issues that he said “must” be addressed as part of the settlement. He emphasized the American Library Association code of ethics and state library privacy laws, and was starting to argue that privacy was indeed centrally related to the settlement when Judge Chin broken in to ask what the privacy concern actually was. As Morris then explained, he could go to the New York Public Library, pull a book on a controversial topic from the stacks, read it anonymously, then leave. Google can then used that information for targeted behavioral advertising. (I’m not sure that advertising was tactically the right example to lead with; Cindy Cohn from EFF would later make a different, arguably more effective choice in a similar spot.)

The remainder of Morris’ argument dealt with his right to raise these issues at all. The parties have repeatedly argued that the only issue for the judge right now is whether the settlement is fair, reasonable, and adequate to class members. Morris, however, claimed that the legal standard requires the rights of third parties to be taken into account as well; a settlement couldn’t deal with toxic waste by ordering it to be dumped into a local river.

Sarah Canzoneri

Sarah Canzoneri is a lawyer—a member of the District of Columbia bar—who has entered the world of children’s books instead. She thought the settlement was wonderful at first, but now thinks it creates a “library with no children’s room.” The exact meaning of this metaphor remains slightly obscure to me. My best guess is that it means the settlement will—due to its exclusion of illustrations—lead to a corpus of books that have text but no pictures, which is all but useless for illustrated children’s books. Canzoneri illustrated this point with a visual aid: a copy of The True Story of the Three Little Pigs. (Canzoneri: “Are you familiar with it?” Judge Chin: “I haven’t read it in a while.”) Some of the pages have illustrated text—taking out the illustrations removes the words, as well.

Chin, however, asked a very good question, one that recalls the odd situation with the American Society of Media Photographers request to intervene in the case, which Judge Chin denied. He asked why Canzoneri was objecting to being excluded from the settlement? Her reply, “This isn’t the way to get a great library!” didn’t really give Judge Chin a legal foothold to work with. The sharper version of her argument may have been that slicing text from pictures destroys the value in children’s books, so that the division makes the settlement unfair as to the authors of children’s books. My students and I weren’t sure whether that was what she was saying in court, or merely our guess at a way of turning her argument into a Rule 23-acceptable objection.

Scott Gant

The day’s second objector—and its first flop—was Scott Gant. He’s a law-firm partner who specializes in antitrust and class-action law, and he spent over 200 hours on the settlement. We know all of this because he used his time to say so, leading Judge Chin to interrupt—twice—to ask Gant why he was actually objecting. (My students calculated that although they don’t bill at partner rates, they’ve each spent upwards of 500 hours on work related to the settlement.)

Turning to the substance, Gant decided to focus on the notice issue. Reaching into the parties’ filings from last week, he pulled out Dan Clancy’s declaration that Google’s analysis of the metadata shows 174 million unique books. In contrast, Gant said, the parties have sent direct notice to only one million class members, and only a million and change have viewed the settlement website. Thus, he told Judge Chin, the court should consider allowing discovery over the notice program, or even appoint a special master to look into the notice.

This idea—a mini-trial on notice—strikes me as unlikely and unnecessary. The burden is on the plaintiffs’ lawyers to show that they’ve provided adequate notice. What they actually did is decently documented in their declarations. If Gant believes the evidence so far shows they haven’t provided sufficient notice, he can air that point perfectly well by saying that the plaintiffs’ lawyers have failed to prove adequate notice. All of the relevant damaging facts about notice are sitting out in public: so-and-so got a badly translated notice, so-and-so didn’t get one at all. I don’t see adversarial discovery telling us all that much of use.

In any event, Gant pushed on to say that many class members didn’t receive notice they should have. He, for example, has a book published by Simon & Schuster, which is one of the publishers listed as having given its list of authors’ contacts to the parties. Judge Chin broke in to ask the obvious question, “You’re here, though?” Gant replied that he was unusual; most other class members wouldn’t have been as well-informed as him. It was a misplay, I think, because it set Gant apart from the other class members he was claiming to be looking out for. Better to have said that he was lucky.

Gant clearly had more he could have said, but his time was up. He concluded that he believed the settlement was wrong “in every fiber of my being.”

Microsoft

Tom Rubin from Microsoft then argued against the settlement, calling it “radical.” He started by waving at the Constitution, citing Sony and Eldred to say that only the legislative branch has the authority to rewrite copyright in this way. Then, he turned to the class action issues, specifically the contentious question of whether the settlement goes too far beyond the original lawsuit. He started trying to argue that the lawsuit was only about snippets, citing the settlement FAQ, but Judge Chin cut him off, pointing to the plaintiffs’ supplemental memorandum in favor of the settlement, which quoted extensively from the broader allegations in the class complaint. Rubin responded that Google never tried to display whole books without permission, only snippets—true, and important, but note quite on point with the question.

Moving on to his next main point, antitrust, he started arguing that the Registry can’t license unclaimed books, which so far comprise 173 million out of 174 million (again with the Clancy numbers). Judge Chin, however, threw a curveball, asking how Rubin would respond to Sony’s arguments about competition. The substance of the question was squarely in line with the issues Rubin was arguing, but I think the unexpected form it took, like the Stay-Puft Marshmallow Man, caught him off guard. Audibly flustered, he said the settlement doesn’t in any way facilitate competition, and that he’d defer here to the Department of Justice and the other antitrust experts. It was a notably weak response.

Rubin recovered a bit in his conclusion, however. He took on the so-called “sour grapes” argument—emphasized in Google’s papers in support of the settlement—that opposition to the settlement is being spearheaded by Google’s competitors for purely selfish reasons. Rubin’s response was that Microsoft and other competitors sought permission for their issues. Google, however, was like a trucking company that told its drivers to go 90, then tells the court that its competitors should speed, too. My students all agreed that it was a great choice of metaphor (notice how it makes the scanning competition into a kind of race) and that Rubin played his hand well by using it as his conclusion, where it would linger memorably.

Amazon

Fourth, copyright titan David Nimmer, of leading copyright treatise Nimmer on Copyright, argued for Amazon. He was the day’s first real standout; he had a gift for stringing together small, eminently clear points that seemed to lead inexorably to the conclusion that the settlement was utterly and wholly illegal. He did all of it with a tone of straightforward, confident authority—unsurprising given his stature and encyclopedic knowledge of copyright.

The first half of his argument was the copyright half. You can’t make or sell copyrighted works without permission. An order letting Google do just that would be in derogation of law. The parties, of course, have argued that the class action settlement is acceptable because each class member is “deemed” to have agreed. So, Nimmer argued, the settlement was unlawful on its face. The “permission” needed under copyright to make the settlement permissible comes from the settlement itself. So, in his words, “The settlement agreement is lawful because the settlement agreement says it is,” a claim of “complete sophistry.”

Since May 31, 1790, he continued, Congress has created a policy that gives the copyright owner complete choice of whether to grant permission or not. In 1932, the Supreme Court recognized, “The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude others from using his property.” This unbroken history of copyright law would all be “set at naught” by the settlement. Judge Chin even gave him a hand here, asking if Nimmer meant that if copyright owners sit back and don’t respond to the settlement, they’re losing their rights. Nimmer gladly agreed with this characterization, saying the Supreme Court didn’t say a party given notice could be held to have granted permission,

I don’t buy Nimmer’s copyright argument, not at least in this generality. The parties later on would give various explanations of why they disagreed. I would personally say that class actions, in general, stand in the shoes of class members, and can give legal valid consent to anything the class members could consent to (subject to the usual legal constraints on class actions). Copyright is no different; there’s nothing in the Copyright Act that would specifically override Rule 23. But it was incredibly well presented, and hard not find persuasive as he thundered along.

The second, shorter part of Nimmer’s argument was a bit of class-action analysis, focusing on the issue of whether the present settlement is impermissibly unrelated to the original lawsuit. He agreed that a settlement may contain extra releases, but only where they’re based on the “identical factual predicate” as the original lawsuit.

Judge Chin broke in here, asking about the difference between the “identical factual predicate” language, which comes from Second Circuit caselaw (directly binding on Judge Chin, since that’s the Circuit that includes New York) and the cases, like Firefighters, that talk instead about the court’s authority to enter a consensual judgment providing greater relief than the plaintiffs could have obtained at trial. (Firefighters is a Supreme Court case, and thus even more binding on Judge Chin—if it’s on point .) Nimmer responded that the parties had raised Firefighters only the previous week, so that Amazon would like to file briefing responding to it and similar cases cited by the parties. Judge Chin didn’t say “no,” but he did say “I have enough paper already.”

Returning to the substance of the judge’s question, Nimmer raised a point that would recur: Firefighters was a case about discrimination. He cited a Sixth Circuit case, Williams v. Vukovich, which held that consent decrees purporting to release a defendant from liability for future acts of discrimination are invalid. The same, he said, held true for copyright: the settlement was “absolutely against copyright law.”

Nimmer then switched back to the identical-factual-predicate line of cases, arguing that the factual predicate here was the display of snippets, whereas the settlement is “unlimited,” for the display of full books. There would have been no possible fair use argument for selling full books, and Google has never treated unlicensed display of full books as a fair use. If Google had, it would have been “the largest criminal copyright violator in the history of the Republic.” While some might say that Google really is exactly that, Nimmer’s implicit point was that this was such an absurd possibility that it showed the equal absurdity of treating this settlement as a natural extension of the original lawsuit. It was a strong end to a strong argument.

SFWA/ASJA/NWU

Ron Lazebnik, backed up by the students of the newly-founded Samuelson-Glushko Intellectual Property and Information Law Clinic at Fordham, next spoke on behalf of three writers groups opposed to the settlement: the SFWA, the ASJA, and the NWU. He highlighted an issue from the numbers in last week’s filings. 1,100,000 books have been claimed, but there are only 44,000 claimants, suggesting that most claims are by publishers. Since 620,000 of the claimed books are out of print, Lazebnik concluded that a great many books are being claimed by publishers who aren’t bothering to support the books in print.

This matters, he argued, because under their contracts, authors are the sole rightsholders for most e-books. The settlement lets publishers profit from books they have no right to. It puts a burden on authors to prove that they’re the sole rightsholder. For Insert authors, the situation is even worse, since the settlement destroys licensing potential. It was somewhere around this point in the day that Judge Chin started to show his first signs of general impatience (rather than a request that a particular attorney get to the point). I’m hearing the same points over and over, he said.

Pamela Samuelson

Next up—the sixth speaker in opposition—was Pamela Samuelson, speaking on behalf of the academic authors who signed her letter objecting to the amended settlement. The majority of books in the libraries Google is visiting, she noted, are by scholars; many of these are out of print. The Institutional Subscription will be, in large part, by scholars and for scholars. Her colleagues, however, are mystified by the details of the settlement. The one point they have all—to a one—agreed on, however, is that they want their own books available on open access terms. Since orphan books, per the Financial Times, comprise 2.8 to 5.0 million books, a default of open access would better suit academic authors’ desires.

The plaintiffs, however, have referred to open access as “parochial self-interests” and “inimical to the class.” To Samuelson, this claim is itself proof that the Authors Guild hasn’t fairly represented the class. Academics wouldn’t have sued Google in the first place, and if the case goes forward, they’ll be writing briefs on behalf of Google. I would add that the plaintiffs’ emphasis, in their supplemental briefing, that open access advocates’ views shouldn’t be allowed to interfere with the exclusively economic interests of class members doesn’t help their case for adequate representation. Samuelson’s argument is precisely that many copyright owners have strong non-economic interests in their works. As she put it later, the plaintiffs treat books as commodities; for academics, books are a slow form of dialogue.

On the orphan works issues, Samuelson emphasized that the Copyright Office’s proposed model endorsed free use for works for which no owner could be found, not an escrow model. Similarly, the legislation that Congress considered would have adopted a free use model.

Finally, as a legal scholar, Samuelson explained that she was wary about precedent. Consider other kinds of copyrighted works, not just books. Who’s next to be targeted by this “let’s make a deal” attitude? This settlement will encourage other lawsuits that will try to reshape class-wide copyrights.

Privacy Authors and Publishers

After a ten-minute recess, arguments resumed at about 11:45. Cindy Cohn from the EFF argued on behalf of her group of 28 authors and publishers worried about privacy. How is that a class concern? Well, if readers don’t have good privacy protections, they’ll be subject to a chilling effect. Reduced readership means reduced money for authors. The settlement creates a library-bookstore combination; it can track not just what books you read, but which pages, and what you scribble in the margins. No one has ever had this before. What’s more, she explained in a very clever twist, the plaintiffs agree with us; they say in their briefing that they support efforts to improve privacy for users.

Here, Judge Chin interrupted with a question. If I order a book on Amazon, how is this different? Cohn gave the second-best answer to a question all day: unlike Amazon, Google will be able to track what you read after you buy. Chin followed up by asking she thought the problem should be fixed. Cohn then have the first-best answer to a question all day. Two reasons, she said. First, Google should be required to require a warrant or court order before turning over information to law enforcement. Google says that requiring a court order isn’t the law yet—but if were the law already, she noted, we wouldn’t have to worry about this here, they’d just need to follow the law. Second, Google should mitigate the privacy risks by keeping the data for 30 days or less. They already delete health data within two weeks.

As some of my students observed, the judge was clearly looking for practical solutions; Cohn gave him them, rather than just complaining about the settlement. What’s more, she had clear, specific examples already in mind, and her point about Google Health positioned her request as in line with something Google was already doing. Because she was able to make these points in response to a question, they were already more persuasive than they would have been as a straightforward presentation. Her whole presentation was highly effective: precise and clear, but also conversational and responsive. It was, for the ritualized and formal world of oral appellate-style advocacy, a comfortable, down-home presentation, and we all thought that it worked.

Chin then raised his repetition issue, asking how similar her requests were to CDT’s. Cohn said that their lists were similar, which showed what a strong consensus there was, that both supporters and objectors agreed on these privacy provisions.

Cohn finished her argument by talking about Google’s arguments that privacy issues aren’t part of the settlement approval balance. First, Google has argued that there’s no state action. Cohn replied that because the settlement needs federal court approval, Judge Chin, “You’re the state.” Second, she quickly dismissed the analogy between the settlement and a municipal building permit. And third, Google has asked for trust, and pointed to the FTC enforceability of its privacy policy. But that’s a far cry from this court, she responded, particularly since privacy policies can be changed at will with proper notice.

Japan P.E.N. Club

Yasuhiro Saito next argued on behalf of objectors from the Japan P.E.N. Club. Its members are still concerned—so concerned in fact that they sent a representative to attend. First, even though the settlement has been narrowed, many of its remembers remain in it. Second, the settlement contravenes fundamental values of freedom of expression and preservation of diversity by creating a single point of control. And third, it will impose continuing harm. The approval process itself has been a huge burden in time and money for class members to understand. There’s still been no Japanese translation, the scanning continues. Even with the extraordinary number of objections, they’re still a diluted view of the views of the class. Countless copyright owners remained without the time, money, or knowledge of law needed to speak up to object.

It was a decently well-presented argument, but I’m not sure there was much point to it. It didn’t add much to the P.E.N. club’s filings in the case, Saito didn’t give Judge Chin any new legal arguments to work with, and there was little he said that wasn’t said by someone else sometime during the day. The day saw a fair number of these me-too objectors. As the day wore on, Judge Chin displayed increasing impatience with them.

Germany

Irene Pakuscher, the head of the unit on copyright law in the German Federal Ministry of Justice, presented Germany’s objections. (Judge Chin thanked her for coming from Germany to the hearing.) She started by emphasizing Germany’s commitment to digital libraries, but also emphasized that Germany insists on respect for existing copyright. The settlement still impacts German rights; many books were registered “because of the history of copyright legislation in the Untied States.” (That is, it was previously necessary to avoid forfeiture of copyright, but later amendments to the law eliminated the necessity of registration, and hence, the importance of paying close attention to registration for foreign copyright owners.) The search options remain poor. Even though Google has digitize the registration recors, there are OCR errors, and no link to the digitized books.

And third, Pakuscher went on, German authors weren’t represented in the negotiations by the AG and AAP, which they’re not eligible to join. Judge Chin then asked what she would have wanted out of the settlement had they been represented. Pakuscher should have had a ready answer to the question, and didn’t. Instead, she said that European collecting societies must admit members from other countries, because it’s essential to be involved in the process. I doubt that point had much weight with Chin, whose questions showed a strong pragmatic streak.

Pakuscher turned to orphan works and the settlement’s exclusive license for them. Under German law, she said, a compulsory license of this sort would require action by the equivalent of Congress. Moreover, the settlement was contrary to the Berne Convention and the World Copyright Treaty: it imposes a formality and switches to an opt-out status. Judge Chin didn’t seem especially interested. Throughout the day, he paid more attention when the lawyers raised issues that weren’t in their filings, or when they found a way to compress a complicated filing into a focused and more compelling form. He had less patience with arguments that repeated the conclusions from briefs, rather than the reasons.

AT&T

Michael Guzman gave a me-too argument on behalf of objector AT&T. He claimed that AT&T is a class member, a competitor of Google (because AT&T is in the search market with its yellow-page listings!), and a customer. Really, though, the fact is that AT&T and Google truly hate each other to a genuinely irrational degree. What’s bad for Google is good for America, AT&T would say, and I really can’t think of another reason why AT&T is filing in this case.

That said, Guzman gave a competent, reasonably clear antitrust argument against the settlement. He emphasized that the settlement confers an “unjustified searchable-work monopoly.” And while it doesn’t erect any new barriers to entry, competitors are already precluded by copyright law. Nor, he said, is there a “public interest” exception to the copyright or antitrust laws.

Carl Hanser Verlag et al.

Cynthia Arato argued on behalf of an international array of writers’ groups and publishing trade associations. The wonderfully-named lead objector Harrassowitz is gone, but this is the same general coalition that filed the absolutely devastating first-round objections on international notice problems, including a stinging series of declarations on the poor translations of the notice. It’s hard to tell from outside, but they may single-handedly have been responsible for narrowing international scope of the amended settlement.

They’re still unhappy; Arato’s argument focused on the copyright-treaty issues. First, while the parties have argued that these treaties aren’t self-executing, that’s not the end of the matter. Yes, a claim for violation of Berne or TRIPS couldn’t be brought in a U.S. court, but that wouldn’t be the end of the matter. The USA will be called to task over the settlement if it’s approved; the court should consider our international obligations. The WTO dispute resolution procedures could be used against the United States, leading to sanctions and what Register Peters called “diplomatic stress.” (Some of my students thought this wasn’t the best way to frame the argument; it sounded a bit too much like threatening the judge. Better perhaps to tell him why Rule 23 requires taking these larger issues into account.) Judge Chin wanted to know what treaty provisions were at stake. Arato named four: that exclusive rights be honored, that formalities are prohibited, that the US can’t favor its nationals over foreigners, and that it can’t favor one foreign nation over another.

Arato took issue with the parties’ argument that the settlement isn’t a “formality” because a formality only applies when one could lose a copyright for non-compliance. She replied, instead, that Berne article 5.2 prohibits encumbering either the “enjoyment” or the “exercise” of a copyright with a formality. While the caselaw holds that a class-action claim form isn’t burdensome, those cases are, for example, insurance matters where each class member holds one or two policies. Here, however, to evaluate your rights, you need to look at all your books from 1922 on—and a publisher, agent, or collecting society may have to consult files on the rights to many thousands of books.

Her other argument took on the parties’ claim that the settlement is a permissible law of general applicability, rather than being copyright-specific. The position that rules of general applicability can’t be copyright-treaty issues, however, is based on one law review article, which gives a single example: the “formality” is the filing fee to file any lawsuit at all.

Consumer Watchdog

The twelfth argument against came from Daniel Fetterman on behalf of non-profit Consumer Watchdog. It was a me-too argument from start to finish, long on policy arguments about Congress’s role, and short on legal specifics. The one useful card Fetterman held, he misplayed. He started by trying to address the sour-grapes argument. Consumer Watchdog, he pointed out, wasn’t a competitor to Google. Its only agenda was the public interest. It had no stake in the outcome. And so on, until Judge Chin broke into complain that so many of the parties were spending so much of their time telling him who they were. What could have been a decent rebuttal to the sour-grapes point from the organization best-positioned to make it wound up going nowhere.

EPIC

Marc Rotenberg from the Electronic Privacy Information Center said he had previously believed the privacy issues in the settlement were solvable, but had concluded (unlike EFF and CDT) that they weren’t curable. After repeating previous points about library ethics, state library privacy laws, and the potential for detailed user tracking, he concluded that he didn’t see how it was possible to transfer this much information to a private corporation that already knows so much and can track users so well.

That struck me as an argument highly unlikely to make any headway with Judge Chin. To accept it is to hold not only that this settlement is flawed, but also that Google Books could never legally be offered, even on a wholly voluntary basis, under any possible set of privacy-protective laws, with perfect notice and consent. I understand the rhetorical value of saying the settlement is unfixably bad, but I doubt that Rotenberg and EPIC really want to bar Google from the online book business completely.

Open Book Alliance

Gary Reback, for the Open Book Alliance, started with a good reply to Sony’s earlier pro-competition arguments. Sony, he observed, sells devices, not books. It’s not a competitor in the market at risk from the settlement.

Things went downhill from there, though. Consistent with the OBA briefs, Reback tried to reorient the antitrust discussion away from the economics and towards a broader Google/publisher conspiracy. As one of my students observed, Reback’s frequent use of words like “conspiracy,” “secret side deal,” and “concealment” didn’t come across well. It made him sound like a conspiracy theorist, seeing Masons and Martians in every corner of the settlement.

Reback’s law-and-economics argument was devoted to telling Judge Chin not to look only at output. (Einer Elhauge’s article and brief, on which the parties’ latest briefs draw, are heavily directed to showing that the settlement increases the output of books reaching consumers.) Instead, explained Reback, the goal is try to fix a price, and then work to make sure competitors can’t drive it down. That didn’t make sense to me; the lower prices competitors would offer would draw in more buyers, which would … increase output. So the cartel is output-restricting, after all. Perhaps I misunderstood Reback’s argument, but if I am, than I doubt that Judge Chin understood it, either.

Finally, Reback argued, “We didn’t get a single seller by chance.” He pointed to the secrecy of the negotiations and to the parties’ rejection of other companies, such as Microsoft, even as they were negotiating a settlement in Google’s favor. Reback gave the timeline in substantial detail, leading Judge Chin to say, “I don’t find this terribly helpful; let’s finish up.” Ouch.

Internet Archive

Hadrian Katz, speaking for the Internet Archive, then gave, hands-down, the best argument of the day. He spoke without notes, resting on the podium, and succeeded in doing what no one else before or after had or would: transcending the narrow specifics of the many legal areas at stake to give a compelling encapsulation of the case. Plenty of others spoke in outraged generalities; Katz linked his clear vision to the issues actually facing Judge Chin.

A single condition, Katz argued, would realize all the benefits of the settlement and resolve virtually all the problems. Approve it as is, but on an opt-in basis. Nothing in the parties’ submissions explains why the settlement would need to be opt-out. He pointed to footnote 8 of Google’s brief, in which Google argued that going to opt-in would “eviscerate” the settlement. “This is about the orphans,” Katz concluded. Look at page 8 of Google’s brief, in which they argue that opt-out is vital because it makes the market for these out-of-print works possible. “They knew they couldn’t find the rightsholders,” he argued: that’s why they need an opt-out settlement.

In an opt-in world, according to Katz, notice would be dramatically better because the parties would genuinely have a full incentive to locate copyright owners. They’d get all the benefits to the class they keep talking about; the Registry would become the place all of Google’s competitors would also want to go to. The reason the defendants don’t like opt-in is that they want access to the orphan works. And that’s what’s unfair about the settlement. It gives Google these rights into the 22nd century. It doesn’t just violate Rule 23, it violates the Rule Against Perpetuities! (It’s a clever line, but it’s hyperbole—under the settlement, there aren’t any property interests that vest that far into the future.)

And as for the Firefighters case, Katz quoted the language immediately following the test quoted by the parties: “This is not to say that the parties may agree to take action that conflicts with or violates the statute upon which the complaint was based.” And he finished with a real zinger: on privacy, why has nothing been said so far today about Google Buzz, which raises some questions about how seriously Google takes privacy? It was, from start to finish, an absolutely masterful piece of oral advocacy.

Arlo Guthrie et al.

Next up was Andrew DeVore on behalf of a group of authors concerned about economic unfairness. He started with the scope of the releases of non-copyright claims, including trademark claims. He went through some of the Firefighters analysis, using his client’s trademark on PAY IT FORWARD as an example. I have to say that I don’t buy this argument—or rather, I don’t yet set quite how it would work. I read the settlement as authorizing Google to engage in certain kinds of book-sales programs, with releases of all claims against it, copyright or not, for engaging in such programs. If (big if) the core copyright claims can be released in this way, it would be absurd to block the whole thing because the trademark claims for, say, series titles can’t also be released in connection.

The same largely goes for DeVore’s argument about non-display uses. He and Judge Chin got into a colloquy over sponsored links that didn’t seem to lead anywhere in particular. I, for one, am just not worked up over the fact that Google could use the books it has scanned to improve its search algorithms; to me, that is a very strong case for a fair use. DeVore also gave a hypothetical about Google using a how-to book to create its own how-to book that never displayed expression from the original. Neither I nor my students could follow the details.

DeVore’s third issue was unfairness to Insert owners. He was running low on time, but managed his close brilliantly. I have four reasons the settlement is unfair to Insert owners, he announced, then ticked them off in a sentence each. It’s an inadequate one-time compensation. Insert owners don’t participate in advertising revenue. They can’t exclude their works from particular uses. And they can’t something something something (I’m unable to read my handwriting from his fourth point.). This clean, structured list kept Judge Chin listening, letting DeVore get in a few extra licks.

Darlene Marshall

I believe that Paul Rothstein spoke for objector Darlene Marshall. He echoed the opt-in sentiment, and advised Judge Chin to lok at the Fair Labor Standards Act, particularly as applied in a recent Wal-Mart case. According to Rothstein, it mandates opt-in. Judge Chin replied—evidently based on some familiarity with the FLSA—that he didn’t see it as an appropriate analogy. Rothstein, having made his one point, thanked Judge Chin and sat down.

VG WORT

The final speaker of a very long morning was Veronica Mullally (I think) on behalf of VG WORT, Germany’s only Reprographic Rights Association. It represents some 400,000 authors; its CEO was in attendance at the hearing. Her argument was largely a me-too, given the presentations from the German government and the international coalition represented by Cynthia Arato. Two points that Mullally made, however, stuck out. First, surely Google is picking which books it wishes to scan; can’t it send out requests with similar precision? The onus should be on Google to seek out permissions. (The problems aren’t of similar difficulty; books don’t change as much after publication as their authors and owners do. But it was cleverly put.) And second, VG WORT doesn’t want to impede progress. It would be happy to be included under the accepted principles of copyright law.

And that was it for the morning; the session ended at about 12:50 for lunch.

Pennsylvania

Norman Marden from the Pennsylvania Attorney General’s office was the first afternoon speaker. I missed most of his comments because we were informed that there were spare seats available in the main courtroom, so we left the overflow room and went upstairs. If he said anything to refute the very effective Hanna v. Plumer analysis in the plaintiffs’ supplemental memorandum (which argued that Judge Chin’s power under the Federal Rules takes precedence over state law), I missed it.

Writers Representatives

Lynn Chu has been an outspoken opponent of the settlement. Her blogging, tweeting, and op-ed-ing have been tenacious and detailed. As a law-school graduate, a veteran literary agent, and a brilliantly caustic wordsmith, she ought to be well-positioned to execute a scathing attack on the settlement. But her argument to Judge Chin, much like her filing, was rambling and ineffective, as though her overriding anger was thwarting her ability to frame a convincing argument. Even the full version conveys little more than a tone of outrage. Judge Chin was visibly bored; he cut her off mid-thought when her time expired.

Stuart Bernstein

The final presentation of the day came from another literary agent, Stuart Bernstein, and what a contrast! Wearing what appeared to be a tracksuit, this non-lawyer spoke clearly, simply, and effectively. Using his perspective as an agent who’s negotiated who knows how many contracts, he started by directly attacking Paul Aiken’s characterization of Insert contracts as standard and simple. Each Insert, Bernstein said, requires a license that restricts the duration, format, and many other aspects of the use. What’s more, these licenses are paper files: finding and claiming all of these uses will be an onerous task. Also, tellingly, in the business, these licenses are called “permissions.”

Next, Bernstein noted the irony of Google, the leading search engine, saying that it’s too hard to search for owners. He can’t think of a better entity to carry out that work. He contrasted the claims that the parties had given thorough notice with their claims that it would be too hard to negotiate individual permissions.

His third point was the difficulty of understanding the release for non-display uses. As an agent, you look for contracts your authors can understand. He can’t explain non-display uses in those terms. Someday, perhaps, we’ll have books beamed directly into our brains. That would be a non-display use. Understanding all of the complexities of the settlement, of which this is one, is just too much for authors. As a non-attorney agent, he’s done lots of research, but he needs to leave it up to his clients to decide—and for many of them, it’s hard to tell. One client has opted in; a man with many out-of-print books he’s looking to sell via the online program. But they don’t need the settlement to do this; Google already has a way to make these offers to authors. It was, on the whole, a great presentation; he played to his strengths, particularly his clear and comfortable manner and his knowledge of the book trade.

This post continues with Part II, which covers the arguments made by the United States and the parties to the settlement.

Thank you for your informative summary. Have you been given any idea of when the transcript might be available, and most especially when the transcript might be available (and posted at The Public Index)?

Thank you very much for this very useful report.

Thank you to you and your students. I believe the world benefits from the time and effort you have invested to understand the underlying issues and bringing them to a larger public.

This must have been quite a day! Heavyweights on an important issue. Thank you.

-brewster

I am very surprised at two big ommissions from the arguments: FIRST no mention of the ABS and amended notice claim that competitors can license the Google Book Data Base to sell e-copies, at a negotiated pro rata of the Google’s 37% revenue split. Prof.Grimmellman wrote a very detailed and incisive article on this issue rebutting the claim that the ABS required Google to grant such licenses. Maybe Rubin should have gone into this issue when Judge Chin challanged him on the anti trust issues? SECOND, you do not report on any discussion of the Registry governance and autonomy issues, and the mechanics for its creation and ongoing control. In my filed Objections, DIR 135 I suggested a court monitor to screen initial directors, to insure independent non-party directors, and to guaranty annual author voting elections, or some governance similar to BMI and ASCAP. I am pleased that Asst. A.G. Cavanagh argued that the 37-63% revenue split in the settlement is still unlawful per se price fixing, even though in the ABS the parties claim it was made negotiable. This was an issue I also first raised in my Objection for the Kay Boyle ouvre, (DIR 135) filed in August, 2009.

Thank you, Professor and students, for your thorough review. I will say again what I have in the past: the work you have done on this site is the very soul of pro bono. I cannot imagine how those of us touched by this case would have managed without you as our central reference point.

We writer-objectors are gratified that the Author-Publisher procedures are beginning to get the attention of the DOJ and we hope, Judge Chin as well. (We have long felt that writers are the true orphans in this settlement — not the “orphan books!”)

I am especially pleased the Mr. Cavanaugh made the point that the settlement should not lay an economic burden on writers caught in the maw.

Our brief, written by the new Fordham property law clinic folks, lays out some ways in which an author potentially is harmed. It certainly takes issue with Ms Durie’s claim that only good can come to authors with books in the settlement.

This is terrific — thanks so much. I think I’m finally beginning to understand the issues at stake in the GBS settlement; it helps a lot to have personalities sketched as novelistically as you’ve done here.

Is there something left off the end, though? The account ends very abruptly.

The statements about drying up the potential market of a book are correct. They also apply to library displays. If the book is displayed for patrons to copy and/or print, and/or pass files on to whoever they wish, this would definitely gut the publisher’s asles over time.

Yes, library patrons can also photocopy or scan pages of a library book. That already cuts into sales. But the publisher selling one copy of a book to a library that then displays scans all over the place, would be getting to a stage where it causes very serious harm. Google giving the scans away to numerous libraries is even worse.

Considering that books not in the public domain in the US were by definition published after 1923, and are mostly not rare but available in reasonable quantities in libraries (including interlibrary loan) and in many cases the used book market, the argument that they will all vanish before they enter the public domain, and before Google can find the copyright holders, is absurd. Paper is not immortal; but I know from the good condition of several thousand old books in my personal library, and that I see for sale on the used market, that the situation is not that dire.

Unfortunately, publishers cannot even refuse to sell books to libraries. Almost all library sales go through wholesalers, the largest of which also sell to many online and brick-and-mortar bookstores. The publisher has no control over the wholesaler’s customers, and usually cannot do without the wholesaler’s services in selling to bookstores. Most bookstores and libraries prefer to buy from wholesalers to simplify ordering and accounting.

Google gave or promised scans of their own books, to the libraries who lent those books to Google. Google also gave or promised trades of scans between the libraries who were participating partners. Google seems to want to keep adding to the list of participating partners.

Yet—someone please correct me if I am wrong—copyright holders are not compensated at all under the Settlement for any use of the traded scans, because they are not sales. Even though copyright holders release the libraries from liability under the terms of the Settlement, if I recall correctly.

And, the University of Michigan Library has listed on Amazon paperback copies of books they say were scanned from the Google Project. I bought a couple; they are paperbacks of the Google scans and likely printed by POD process. Here is a link to one:

http://www.amazon.com/works-William-Shakespeare/dp/B0038HF96W/ref=sr13?ie=UTF8&s=books&qid=1266789588&sr=1-3

and another:

tp://www.amazon.com/Extracts-Adams-diary-translated-original/dp/B002XITYZO/ref=sr19?ie=UTF8&s=books&qid=1266789588&sr=1-9

They are also available as Kindle e-books.

If you want to see more, do an advanced search on Amazon with “University of Michigan” as publisher.

It is perfectly legal for the University of Michigan Library, or any other library, to reprint public-domain books in POD, e-book, or offset form. However, it is unusual for a library to publish books as opposed to lend them. It does raise more questions as to the use of the scans of copyrighted books traded in the Google project.

Mister Grimmelmann you paint a very vivid picture, worthy of Daumier

NIce work, thank you.

“library with no children’s room.” — likely means that there’s no place that’s safe for children to browse without likelihood of them encountering adult materials.

This whole debate is covered already with much more rigor,

see:

http://media.ft.com/cms/b30682f8-8531-11db-b12c-0000779e2340.pdf

-paul

There is good reason to believe this entire suit was a collusive effort between Google and (primarily) the “Authors’ Guilde,” (herein “AG”) largely a front for a law firm. If the settlement goes through, the AG law firm will receive a payoff from Google of over $ 30 Million immediately with much more to follow. The settlement would, of course, turn copyright upside down. It is settled copyright law that a rights owner does not have to jump through any hoops, particularly Google’s, to retain control of his own work. The settlement would say just the opposite.

Google’s “steal everything” corporate ethic can also be judged by its consistently infringing activities. It’s very business model rests on attracting traffic by providing access to pirated materials, then serving up ads. As to photos, Google’s image search is the biggest infringer in history, and Google is lobbying to gut copyright via the so-called “Orphan Works” bill. In this settlement, Google seeks to gut copyright as to books, and achieve it through an illicit class action collusive lawsuit, rather than a bill in Congress.

I would like to offer an alternative or elaborated version of what was said about children’s books.

Since young children cannot read on their own, the children’s room serves a setting for and introduction to reading as well as a browsing space for many young people. If this ruling were to make parents or caregivers think they don’t need the library — or that children’s rooms in general were no longer needed — that would do much to damage the process for getting books and reading strategies out to the public.

The issue about the illustrations is even more complicated. Because children can read illustrations before they are able to decode words, the illustrations in a picture book are often used to elaborate on what is in the text, to engage children in the text, to teach strategies like critical thinking as the young reader anticipates or thinks back on the words and in some instance, as a counterpoint to the text. (In Ellen Raskin’s “Nothing Ever Happens on My Block” for instance, the words are the complaints of a very bored little boy whereas the illustrations show all sorts of exciting things happenening including a bank robbery on the last page where money is reigning down on the little complaining fellow.)In short, the illustrations do matter in children’s books.

This is not a note about the legal status of the books but rather an attempt to make the issues clearer for your readers.

Thanks for the blog.

WS

It is totally misleading the way electronic library advocates argue that a book not being available on the net, in e-form, or free constitutes being “unavailable” and cry out about all the children who will not be educated, etc.

An enormous number of out-of-print books is available in libraries—by interlibrary loan if necessary—and on the used market. The whole movement is about giving away creators’ material to people who do not really want or need it. People who really want and need books are willing to take the trouble of driving to their local library (and if necessary filling out an interlibrary loan form), or ordering online using a meta-book-search engine or an online bookstore such as Amazon Marketplace, then waiting a few days for the book to arrive. The cases in which a reader who plans ahead a little, or only needs a book for entertainment, needs a book so fast they can’t even wait for UPS two-day shipping are far too rare to justify violating copyright to produce e-copies without the prior and express permission of the copyright holders.

I am not opposed to e-books produced with the consent of the copyright holders. If they willinglg take the risk of piracy, that is their choice. I am concerned that many entities make no moves to protect them. As just one example, I saw a crack for the Kindle posted on the net a week after Amazon started selling it. But, again, massively exposing people who have not consented to the production of e-books to the loss of their sales for the sake of readers who don’t want to bother obtaining and reading a paper book is entirely unreasonable.

Fran

Wendy, Thanks for your comment about children’s books. You will be glad to know that in our letter to the judge, we talked about the importance of illustrations in children’s books in more detail. http://thepublicindex.org/docs/amended_settlement/Canzoneri_intent_to_appear.pdf Also, I think Judge Chin understands the importance of illustrations, because his comment indicated that he probably had read a number of picture books to his children. I argued that class counsel had not fairly represented all members of the class by agreeing to the changed definition of inserts because showing the books of authors who are not illustrators would make those books less attractive to Google Books customers.

Joe, you’ve got the right idea. I started my presentation by saying that when I and other members of the Children’s Book Guild of DC first looked at the original settlement we thought the idea of a Great Google Library in Cyberspace was wonderful. I said that the only objections we filed regarding the original settlement was that it did not define “children’s book” and that we wanted Google to provide free public access licenses to school libraries as well as to public libraries, with the licenses limited to children’s books. I pointed out that many children did not get to public libraries, and that even if they did, many parents would not want the kids to have access to the full Google collection because it would have adult material in it. That was why I said that it seemed like the Great Google Library would not have a children’s room.

Then, I went on to say that as we learned more about the settlement, it looked worse and worse. I haven’t looked at the transcript yet, but I’m pretty sure that is where I said the bit about this being a great bookstore, not a great library, which AP has quoted and spread around the world.

As they know, I really admire James and his students, and all the work they have done to inform so many people about the case. However, I have a somewhat different take on the day’s arguments than they do. I’ve drafted some notes but have not gotten a chance to get them written up to post here.

Even though I don’t agree with all of James’ report of the hearing, I want to note that the only other place I’ve seen a detailed report of the hearing is at the Library Journal site http://www.libraryjournal.com/article/CA6719439.html and http://www.libraryjournal.com/article/CA6719808.html However, for some reason their reporter missed the four speakers between the Internet Archive and the agents. I think that Andrew DeVore and the woman speaking for VG Wort made some telling points.

Other reporting on the hearing, even in publications like the Washington Post was truely dismal, so James & his gang definitely deserve kudos. As for the problems with the video in the overflow room, I can attest to that. During the lunch break, I talked to several people who had been in the overflow room, and they did not recognize me — even with my being the “Three Little Pigs” lady.

Frances I agree with you. I think GBS was never ever about money or even much about Google.

Around the end of october and on into november 2008, the action involving our local version of GBS was reaching its peak . The proponents of a compulsory monopoly right for their society were getting rattled, things were not going to script. There was a meeting held in Sydney, to allow debate between these proponents and an assortment of opponents of their scheme. It got pretty hot, at one point the chairman of the ‘artist’ collecting society, thumped the table and shouted out that he did not care about whether there was any money in it; “IT was the RIGHT that mattered” … and he meant it. These societies seem to attract people who are seriously , profoundly, confused, about symbolic systems of representation. Almost every phrase they utter is of their need of society to “grant them recognition”. I think that this need for recognition was/is the real motivative force that drove GBS.

Creatives , good and bad ,are good at make-believe and .. manipulation. And the job needs an a capacity for unrelenting and ruthless focus . If these qualities are not well disciplined the results can be truly awful . Someone asked Evelyn Waugh why Evelyn Waugh , despite being a faithful & devout christian could be at times such a ’ bastard’. Evelyn replied “you don’t know what I’d be like without it ” .

“Google can then used that information for targeted behavioral advertising.” -> “… can then use that …” ?

“Chin followed up by asking she thought the problem should be fixed.” -> “… asking how she thought …”

“Cohn then have the first-best answer to a question all day.” -> “… then had the …”

“Google has digitize the registration recors” -> “Google has digitized the registration records”

“but if I am, than I doubt that Judge Chin” -> “but if I am, then I doubt that Judge Chin”

“advised Judge Chin to lok at the Fair Labor” -> “advised Judge Chin to look at the Fair Labor”

I appreciated your summary of the hearing last week, but I think you missed the key point of EPIC’s argument.

The point of my presentation (at 85-88) was to draw the court’s attention to the extensive system of user authentication and document watermarking envisaged in the settlement agreement. This is an “extra-legal” concern that is in fact critical to understanding the privacy impact of the proposed settlement, as well as whether it can be cured by the addition of legal terms.

The technologies for user access to the digital library set out in the proposed settlement stand in direct opposition to all of the techniques that have been developed to enable access to electronic information while minimizing privacy risks. The libraries were at the forefront of this effort. It is all about to be turned, as I explained to the court, “upside down.” The tracking efforts will be maximized to increase the commercial benefit to the parties, notably Google. And of course the data will be readily available to the government for datamining and dragnet surveillance.

Privacy rules, of any scope, will be quickly washed away.

This is the reason that EPIC did not say in its brief that the privacy concerns with this model of a digital library could be cured by the addition of legal terms. It must be, as I concluded, “in the design of the technology.” (In the technical community, this is sometimes described as “Privacy by Design” or the use of “Privacy Enhancing Techniques (PET)”)

It is also interesting to contrast the privacy analysis in this settlement with the privacy analysis for a non-commercial digital library or one operated by a smaller entity, say Acme Inc., that was not so extensively involved in so many other digital services and that did not derive so much revenue from knowledge of the personal interests of Internet users. Under either model, we would still need privacy terms to safeguard reader privacy and to extend the protection that currently exist in state law for physical libraries. Perhaps such a settlement could be cured with additional terms.

But that was not the settlement before the court last week.

Regards,

Marc Rotenberg

EPIC Resources on the Google Book Settlement:

EPIC: Google Books and Privacy, http://epic.org/privacy/googlebooks/

EPIC: Google Books Litigation http://epic.org/privacy/googlebooks/litigation.html

EPIC: Google Books: Policy Without Privacy http://epic.org/privacy/googlebooks/policy.html

EPIC: Google Books Hearing Press Release http://epic.org/press/EPIC_release_Google_Books.pdf

As my book was supplied to Google Inc. by the University of Wisconsin-Madison, one of the “Big Ten” referred to by Paul Courant,[Page 18- Line 1] I found his submission interesting. Since the Google Book Settlement is supposed to be about settling a copyright dispute, I doubt many works still in copyright are turning “into corn flakes”[Page 18-Line14]. He also speaks of “pulp paper that contains acids that destroy the paper over time.”[Page 18-Lines 12&13] When I contacted the Library of Congress to see if they had any intentions of digitizing my book, they informed me that they had put it through a process to remove any acids it might contain. They have no intention of digitizing it.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries [United States Constitution, Article 1, Section 8, Clause 8]

Paul Courant states:The broad social benefit that derives from the progress of science and the useful arts depend on the ability to find, use, and reuse the scholarly record. Page 18-Lines 21-23] What about the bit: by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries? The de facto commercial partnership of the University of Wisconsin-Madison and Google Inc. had no right to make digital printing plates of my Fevens,a family history! Paul Courant stated, “depend on the ability to find, use, and reuse the scholarly record”. WorldCat lists four libraries that have Fevens, a family history, but there are others. Since the Google Book Settlement limits the uses a member library (i.e. The University of Wisconsin) may apply to their digital copies of in-copyright works, it would seem that Mr. Courant is advocating that libraries defer to Google Inc. their mandate to make scholarly records available to researchers.

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

Douglas,

As a book collector, I fully agree with you about the “corn flakes” issue. Yes, it is true that a pulp paper book stored under bad conditions (such as an uninsulated home attic or damp cellar) will eventually dry up, get moldy, or be gnawed by rodents or insects. However, generally a post-1923 book stored under the same conditions in which human beings are comfortable living all day, will survive pretty well up to this date. I sincerely hope that libraries are managing this level of quality in their book storage environments. If they do not it is their own fault.

If a book wears out through patron use (or abuse) the library often has the option of buying another copy, on the used if not the new book market. Many of the catalogs I receive from used booksellers describe special terms for libraries, so I assume libraries buy some portion of their wares.

Furthermore, the library preserving a book by digitizing it does not mean they have to display the book in that form (which would expose it to patron piracy). They could archive the scan till the copyright expires. Preservation certainly does not mean that anyone needs to sell e-books or POD books as allowed by the Settlement.

If you are interested in the exaggerated claims of deterioration by libraries in order to get funding for microfilming, read Nicholson Baker’s book Double Fold. Libraries thoroughly conflated the issues of deterioration with saving shelf space—the real reason many books were microfilmed was so that the originals could be discarded. Nicholson talks about the dangers of this, especially since microfilm turned out to be a medium that deteriorated faster than paper. Anyone who thinks the current PDF or any other e-format will last for centuries, should consider how often and how fast most of their computer hardware and software has been rendered obsolete during the past 10 years. They should also consider whether a scan with blurry illustrations and images of human fingers covering parts of the pages, or an unproofed OCR job, is an adequate substitute for the well-printed book it may replace.

Fran

Residual Acid salts in paper is a conservation issue to the degree of moisture in the paper; no moisture no acid. It is an issue for low quality newsprint paper and can also be for thin paper: Less fibers to lose. Few books these days are printed on pure artist rag paper, but I would bet on them out lasting a cd/dvd , floppy, Hard-drive by decades.

A letter in the Australian from Lyn Tranter CAL not good for authors | The Australian

My other concern is that when publishers allow certain books to go out of print, the publishers still receive CAL payments when material in the books is photocopied. This is after they have abandoned their duty of care in keeping new copies of the book available.

Lyn Tranter, Literary agent, Balmain, NSW

For almost 40 years, publishers have had very nice earner from licence fees from photocopying in educational institutions and public libraries (ultimately paid for by the taxpayer). The great thing about out-of-print books from the publishers point of view, was they got to keep all of the money. I don’t know the situation in the UK, but I guess, it may not be that different from this scenario in Australia. Perhaps Gillian can fill me in.

There is a whole body of expertise for paper conservation. Did the libraries in the project call in professional paper conservationists and have reports done as to the urgent necessity for immediate scanning of copyrighted books? Did they have conservation alternatives to scanning evaluated? Did they have different storage options for the printed books evaluated? Did the libraries look into the possibility of purchasing replacement copies of specific damaged books? Did the libraries have experts identify particular books at risk? Did the libraries even make a blanket assumption that all books published before X copyright date were at risk and would have to be scanned immediately? Was this process in any way selective as to book condition?

Did the libaries contact the rights holders and ask permission for preservation scanning, or indeed, whether the rights holders might be able to supply an e-file to save the library the cost and trouble?

As far as I know, the answer to all these questions is “no.” Perhaps I have not seen some reports that were made. But, since the Settlement applies to all books published before January 5, 2009, and many recent and in-print books were scanned, I hardly think the “scan them all now or they will turn into cornflakes before the copyright expires” argument holds.

Fran

Hot diggety. There’s nothing like coming home after a long day and settling in for a marathon Laboratorium session. James, as always, your commentary inspires and illuminates.

America is still not getting it. Google & Company has trampled the rights of millions of people the world over and they are not being held accountable. Google does not care about other’s property, whether it is taking a persons contact list in their G-mail account for Google Buzz or taking the copyrighted works of others for Google Books. I have stated my opinion before in my reply to this article. Since Google & Company are under no obligation to honour “opt outs” of their library project, and the Google Book Settlement does not require them to do so, the settlement brings no closure. Those of us who have told Google & Company that we want no part of their library project, will have to continually look over our shoulder to make sure that Google & Company doesn’t change its mind about displaying our works.

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

Douglas,

I agree with you about Google trampling the rights of millions of copyright holders the world over. And, the US Justice Department has strongly criticized the Settlement and recommended that the judge not accept it.

Fran

Fran, in their September 18th submission to the court, America could have said, “You know what Google & Company, there have been a lot of people saying that you are violating their copyrights, and for this reason we are telling you to stop the unauthorized digitization of in-copyright works until this matter is resolved.” America did not. Instead they said, “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.” America will have a comprehensive digital “library” no matter whose rights it tramples to get it.

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

Douglas,

It is really not “America” who wants the comprehensive digital library—or rather, bookstore. It is Google, the Author’s Guild, and the Association of American Publishers. I believe the AG and the AAP, who are suing Google, could have gotten the court to issue an injunction to halt Google’s scanning till the suit was settled. As far as I know they did not even ask the court to issue such an injunction—someone please correct me if I am wrong.

I am sure there are people on this forum who can explain the relationship between the Department of Justice and the court far better than I can. I would like to know more about it myself. However, as far as I know the Department of Justice can advise Judge Chin, but they cannot give him orders. In their first submission to the court, they suggested numerous changes to the Settlement, most of which were not made. One was an opt-in Settlement, and perhaps that is what they thought would provide the societal benefits. In their second submission, they advised the judge to reject the Settlement. My guess is that it would not look good for Judge Chin if he ignored the Justice Department’s recommendations. But that is something else the lawyers on this forum probably know much more about than I do.

“America” is not a block, where all aspects of the political and legal system, let alone the general population, are in agreement. Google and other powerful corporations who would like to seize copyrights to whatever is not nailed down, and profit from these works at little cost and no legal penalty to themselves, have previously pushed for so-called orphan works acts in Congress. Google et al are likely to do so again, whether the Settlement is approved or not. Google will continue to try to use Congress to go after rights it could not seize under the Settlement. Its competitors want the same things Google does, they just want to make it legal.

However, American copyright holders are in general opposed to such movements. They are just less powerful, less wealthy, and less well organized.

This is not an issue of “foreigners” versus “Americans.” It’s one of individual copyright holders versus large, powerful, greedy corporations.

Fran, I do not personally hold individual Americans responsible for the piracy of my work. Google Books has been called “Google’s Moon Shot”. When America put a man on the moon, any American could rightly say, “We put a man on the moon.” If the United States does not hold Google & Company accountable- if the Google Book Settlement becomes law- any American will have to say, We stole the property of others to build an American comprehensive digital library.” Douglas Fevens, Halifax, Nova Scotia, The University of Wisconsin, Google, & Me

Douglas,

As it’s my property too, sorry, no.

Fran

Correction to my last post. “I do not personally hold individual Americans responsible for the piracy of my work.” should have read “I do not hold individual Americans personally responsible for the piracy of my work.” Sorry.

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

Implicit in much of the talk behind GBS and digital libraries is a conception that the ‘orphan’ books et-all are an underutilized resource and that therefore people who have the means to bring them into maximum production have an moral rightness to their cause (whatever the collateral damage).

I’m not so sure. I live in a land that shows the effects of well intended, maximal use . Near to where I live there are some surviving ancient forests (10s of millions of years old). A philosopher; Val Plumwood, bought land and lived in these plumwood forests as a way of helping to prevent their ‘maximal’ use. Val (who could be very annoying in the way philosophers are meant to be annoying) was very focused upon the intrinsic destructiveness of the walking firestick that is our species and in particular how easy it is to do awful things to things that you cant see. How dangerous dualism, ‘us’ and ‘them’, can be to us all.

She wrote well with clarity: no professional jargon.

Nature in the active voice

Ms. Grimble should familiarize herself with the statutory exceptions which allow US libraries to make and use digital copies for the purposes of preservation when unused replacement copies are not commercially available.

Ms. Canzoneri- perhaps it was the audio quality in the overflow room, but my reaction to your argument was identical to that of Prof. Grimmelman and his students. I was confused by the argument about how to make a “great Library”. By the way, Judge Chin’s two sons are in their twenties, so “not in a while” is quite a while.

I paid close attention to the Pennsylvania Argument. I remember it sounding self-contradictory. The argument was that the settlement was unfair to absent rights holders and also, state law said fund should be turned over at 5 years, not 10. Judge Chin was unimpressed. The transcript confirmed my impression.

More impressions on my blog.

Eric,

I will here quote from attorney Stephen Fishman’s The Copyright Handbook (Nolo Press), pages 263-267. “A library or archive may make up to three digital or physical copies of a published work that is lost, stolen, damaged, or stored in an obsolete format.” However, I know of no attempts to determine whether the scanned books were damaged, etc.

“The library or archive [must own] the work as part of its collection.” “Systematic copying is also prohibited … A library may not make copies available to other libraries or groups of users.” This means the trading of the scans with other partner libraries, which was specified in the Google-library contracts I saw posted, is not covered under this use—unless the library already owned the book. The Google contracts do not say the library must already own the book, and if the library lent its own book and received its own scan, it would not need a scan of the same book from another library. The traded scans are therefore a massive free acquisitions program.

Under the Sonny Bono Copyright Term Extension Act, works in the last 20 years of the 95-year copyright term may be copied under certain circumstances. However, the Settlement covers all books published before January 5, 2009 and many very recent ones were scanned, including books still in print.

As for the books in the last 20 years of their copyright terms, the work can only be copied if it “cannot be purchased from the publisher or booksellers.” However, used booksellers are booksellers, and many older books in good or excellent condition are on the market—or even in new reprint editions. The Settlement’s definition of “commercially available” is not per se the standard legal definition. Another condition simultaneously applies, that “a copy of the work cannot be obtained at a reasonable price.” Many used books are available at reasonable prices. I know of no documents where the libraries list prices for replacement copies and determined the prices were prohibitive.

All the evidence says that millions of copyrighted books were scanned wholesale and fast, without examining copyright dates, condition, or availability as replacement print copies.

Fran

…the statutory exceptions which allow US libraries to make and use digital copies for the purposes of preservation when unused replacement copies are not commercially available.—Eric Hellman

It is one thing for the institution of a not for profit library to make a digital copy of a copyrighted work it is quite another matter for that library (e.g. The University of Wisconsin) to form a de facto commercial partnership with a commercial entity (e.g. Google Books) to make digital copies of copyrighted works. The digital copies of in-copyright works that libraries hold that were obtained through their partnership with Google are tainted. [See also my comments to The Chronicle of Higher Education’s—Universities Add Their Own Search of Google Books]

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

Douglas,

Yes, I ignored the elephant in the room. If all the libraries needed was an outside scanning vendor, plenty of straightforward scanning vendors are available. For them all, together, to from a partnership with Google says that Google certainly wanted something for itself out of the partnership. Even though Google claims they initially only wanted to “give scans to libraries.” At least, I think that was one of their initial claims.

The IPEC is requesting submissions from the public on how to enforce intellectual property rights—including those in other countries, so I don’t see why non-US citizens should not submit their suggestions. See:

http://www.whitehouse.gov/omb/assets/fedreg2010/02232010ipi.pdf

Thank you, professor Grimmelmann, and your students, for this and your other insightful work on this tremendous case. It’s a bit like a modern version of Bleak House (available scanned under Google Books, naturally); I wonder if this case will also drag on so long…

John, this case will not end till Google & Company has digitized all the in-copyright works prior to January 2009 because “the United States does not want the opportunity or momentum to be lost.” [Letter of Interest, Page 4]

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

John,

Re the “underutilized resource”: There is also the kind of sentiment that many amateur pirates express. They say “the public” or “consumers” want e-books, low-priced e-books, books in lvery-low-priced bite-sized segments, copiable e-books without DRM, etc. But what they are really claiming is entitlement: The theory that because the market (or they personally) wants something, that publishers are obligated to provide it. And if the publisher does not, that they are entitled to steal it or in this case, force publishers to adopt the business model they dictate.

However, the structure of capitalism is that the business that does not supply what the public wants will be less profitable and may go out of business. However, the business that supplies what the public wants but prices it too low (and the public always wants low prices), or takes other unprofitable avenues, will also be less successful and may go out of business.

It is the right of the publisher/business to choose what products to provide and what prices and sales models will yield an acceptable profit. It is not the right of a third party, in this case Google, to force a business model on publishers—and also in this case, leave them to take all the business risks attached to it.

If consumers really wants all books to be e-books and these can be made to be profitable, then publishers will eventually develop a profitable publishing model for them, or even several. Both Google and the government should leave the market alone to develop as it needs to—while publishers still, of course, obey all the relevant laws and regulations.

Douglas,

As Google is still scanning books, in fact they probably have scanned books published after January 5, 2009.

Fran

Speaking of pirates Fran, you may find the Chronicle of Higher Education’s, Learning From Culture Pirates of interest. In responding to the article I wrote:

—“The pirate king’s argument: The country was experiencing a piano boom at the time, so a lot more families needed sheet music. But the major publishers catered to clientele who could pay 18 pence per song, while Willetts charged just two pence. Because the rightful owners had no hope of selling to the new audiences at those prices, Willetts testified, he did no harm to their businesses with his efforts—while bringing high culture and educational benefits to all. “Indeed, piracy might even increase the sales of the legitimate publishers, since it amounted to free advertising,” Johns writes, summarizing the pirate’s logic.—

Sounds like the same arguments Google & Company, and America are making today in their defense of their pirating.

—“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.”United States of America, Statement of Interest, Page 4]

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

‘As Google is still scanning books, in fact they probably have scanned books published after January 5, 2009.’ - Fran

They certainly have. Here is an example:

Intellectual Property in the Information Age, by Jeffrey C. Sun and Benjamin Baez, published, according to Amazon, on 3rd Feb 2009. It was published by an imprint of Wiley, which is one of the publisher representative plaintiffs. Date of digitization and supplying library are not given.

Then there’s Art Auctions and Dealers: The Dissemination of Netherlandish Art during the Ancien Regime, ed. Dries Lyna, Filip Vermeylen and Hans Vlieghe, published according to Amazon on 13th July 2009.

This second book is a Belgian publication and was supplied to Google by the University of Michigan. It was digitized on 19th November 2009.

Gillian Spraggs identified books published after 5 January 2009 that have been scanned by Google. Two observations:

1. It is possible that the publishers are participating in the Partnership Program for Publishers and Authors.

2. More importantly, it doesn’t matter. As many of the frequent commentators to this blog ignore, it is probably not illegal for Google to scan these books for indexing purposes. If authors and publishers want to repeat the mistake they made with their first premature lawsuits, they can sue Google again and repeat their arguments that this scanning is beyond the pale, but in the opinion of many knowledgeable legal commentators, they will lose.

Of course, if Judge Chin tries to temper the proposed settlement, as I fear is likely, we may then get a definitive legal ruling that indexing is a fair use, for I see no benefit to Google in settling.

Professor Hirtle -

1. The books I picked out are being displayed in snippet view. Google spokespersons have identified snippet view as the mark of books that have been digitized under the Library Project.

2. Whether it is legal or not for Google to digitize these books is not a question on which I expressed an opinion.

You say ‘it doesn’t matter’. I am afraid you are missing a point. Even if the digitizing for search purposes is legal, there is still the question of what Google is going to do with those scans.

Fran has pointed out above in an important comment that Google’s supply of scans to the partner libraries is, for the most part, taking place in contravention of US copyright law.

Moreover, many people, authors especially, are asking, if the GBS goes through in anything like its current form, what will Google do with the scans of books not covered under the settlement agreement? Will there be a second contentious settlement in a few years’ time?

Gillian, I am not a professor, but merely a simple archivist. I agree with you that the books you picked out are likely part of the library program rather than the publisher’s program, though I don’t think there is any way to know that for sure. I think it is useful to remind people that often Google works in partnership with rightsholders, even when their permission is not needed.

If Google does something that is beyond the boundaries of fair use with the scans, then I assume that a rightsholder will ojbect. I don’t believe that either the AG or the AAP made the transfer of the scans to the libraries that provided them as a focus of the original lawsuit. Jonathan Band, who I suspect knows a little more about American copyright law than Fran, thinks that this transfer is permissible under fair use. I would agree, though, that this issue is less clear-cut than scanning for indexing purposes and so have always been surprised that the plaintiffs did not make more of it. Perhaps it is because the libraries that have received copies of the scans (at least in the contracts that are public) can only make limited fair uses of those scans, but nothing more, thus making it hard to demonstrate that actual harm to the rightsholders had occurred.

Again, the original lawsuit was as much over what Google might do in the future as it was about what Google was actually doing. But at least so far, anticipated copyright infringement is not a crime.

Peter,

Can you explain how scanning millions of copyrighted books, many of which are available new (in print) or used at reasonable trade prices, without determining whether they are damaged, and then trading scans with other libraries who did not have all of those books in their own collections, counts as library “fair use”? The core of “fair use” is that it does not harm the market for the book. Libraries are supposed to buy replacement copies of damaged books if available at fair trade prices on the market, and they are not supposed to copy books not in their own collections. Therefore, the markets for the books will be harmed if the libraries use the scans in any way.

Fran

Douglas,

I’ve seen a lot of what I strongly suspect is piracy in 19th-century books on sewing, needlework, and pattern drafting. However, piracy has the capacity of being far more harmful, indeed I think is often far more harmful, than it was in the 19th century. (Just the same, some 19th-century creators of works, including Charles Dickens, Anthony Trollope, and Gilbert & Sullivan, were very unhappy about sales lost through piracy.)

First, distribution through the Internet has all but obliterated geographical publishing distinctions—a lot of piracy used to be from one country to another, so at least sales in the country of origin often suffered comparatively little damage. Second, piracy was more professional when it required the use of a printing press. The average person couldn’t do much more than copy by hand or later, using a typewriter, which was too labor intensive to do on a large scale. Modern technology enables the average person to be a pirate, and on a large scale, and to distribute the pirated work very quickly and anonymously.

I think piracy always harms sales, but it’s a question of scale. If the harm is on a small scale, the business is more able to survive it. If it’s a large scale, the survival of the business is far less likely.

I think it is useful to remind people that often Google works in partnership with rightsholders, even when their permission is not needed. —Peter Hirtle

Peter, needing permission or not is not a fact of American copyright law as it applies to books. Just because the courts have said that it is fair use for a company to scan web pages for search purposes, does not mean that it is fair use for a company to scan whole books for indexing. (See my comment)

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

Several of you are using the comments section of the Lab to carry on conversations with each other rather than with James and the general readership of The Lab. Might I suggest that either you communicate with each other offline or set up your own blog, perhaps a group blog? Another alternative might be to ask James to rename his blog “The Laboratorium and Lonely Hearts Club.”

Peter, my apologies for the misunderstanding.

In the account of the Library Project on Google Books, snippet view is specifically mentioned. The mark of the Partner Program book is limited preview, and usually, if not always, a notice that the book is displayed with the publisher’s permission. That is why I picked out those particular books as having been digitized as part of the Library Project.

The question of whether Google has been digitizing without permission books published more recently than 5th January last year struck me as having a general interest, whatever one’s position on the GBS.

I did not ‘[anticipate] copyright infringement’ on Google’s part in what I said. I noted that many people are asking whether there will be another settlement further down the road, relating to books published after 5th January last year.

If the whole procedure of a settlement works for Google (which I strongly hope it does not), I expect a whole series of them: Post January 5, 2009 works, works already scanned from foreign countries excluded from the Settlement, illustrations, etc.

Bringing the discussion back to the subject of the post, I would note to Peter Hirtle that in their arguments before Judge Chin, the parties are in fact trying to frame the lawsuit as being about Google sending those scans to libraries, so as to avoid tripping on the “identical factual predicate” doctrine.

Also, a clarification about scanning for preservation. I didn’t mean to suggest that Google’s program was allowed under these provisions. But note that under the language of the statute libraries need not accept used copies to replace damaged or threatened books (Title 17,108):

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if—

(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

Note that while there is no requirement for libraries to take any measures to preserve deteriorating books by methods alternative to digitization, large number of librarians would be gravely insulted by any suggestion that they were not taking good care of the books in their collections.

Eric,

However, as I mentioned, there seems to have been no effort to determine whether the books were in fact damaged, or to price them on the market, or even to scan only books that were out of print.

Fran

Frances I agree with you

Both Google and the government should leave the market alone to develop as it needs to—while publishers still, of course, obey all the relevant laws and regulations. For an australian there are two aspects of GBS that have a unpleasant echo with two very shameful things in Australia’s history. One Is the term Terra nullius : When the colony was first founded , the difficulty of negotiating with the indigenous people, the relative ease with which they could be ignored, and the temptation of just grabbing it and issuing a few pieties about the sad fate of an innocent but ’ inferior race’. Thus the notion of ’ nobodies land’ was invoked to get around the requirement for a treaty of any kind at all. The other term is “Protecter of Aborigines” because they did not legally exist they were not citizens and thus people titled “Protecter of Aborigines” were appointed to look after Aborigine interests. Some Protecters of Aborigines, tried to do a good job , others did not

Tuesday was the 11th month anniversary of the fairness hearing. It would seem that Judge Chin took the United States Department of Justice to heart:

…the United States does not want the opportunity or momentum to be lost.— September 18th submission, emphasis mine

Ever read Mikhail Bulgakov’s, Black Snow ?