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Since the question of whether Google’s activities thus far are protected by fair use has come up at some length in the comments, I thought I’d post pointers to some of the extensive academic discussion of the question:

• Jonathan Band, The Long and Winding Road to the Google Books Settlement
• Steven Hetcher, The Half-Fairness of Google’s Plan to Make the World’s Collection of Books Searchable
• Douglas Lichtman, Copyright as Innovation Policy: Google Book Search from a Law and Economics Perspective
• Matthew Sag, The Google Book Settlement And The Fair Use Counterfactual
• Hannibal Travis, Google Book Search and Fair Use: iTunes for Authors, or Napster for Books?
• Siva Vaidhyanathan, The Googlization of Everything and the Future of Copyright

Great deconstruction of the generic conventions of TV news, although the lighthouse keeper unnecessarily breaks the tone.

Restatement (Third) of Torts: Products Liability § 3 cmt. b:

Although the rules in this Section, for the reasons just stated, most often apply to manufacturing defects, occasionally a product design causes the product to malfunction in a manner identical to that which would ordinarily be caused by a manufacturing defect. Thus, an aircraft may inadvertently be designed in such a way that, in new condition and while flying within its intended performance parameters, the wings suddenly and unexpectedly fall off, causing harm.

Although the “inadvertently” is good—suggesting as it does that someone in a moment of weakness got careless and accidentally designed an aircraft—the part that cracks me up is the “causing harm.”

The pace has slowed to a crawl; there are a couple more things that I know are out there that haven’t hit the docket yet, but not much. Here are a few further important and interesting filings:

• The big one is Pamela Samuelson’s objection letter. The perspective is that of academic authors; the argument is extensive and carefully reasoned; the list of signers is impressive. If you have time to read only one filing in detail, make it this one.
• Literary agent Stuart Bernstein filed a letter objection with some further details on the difficulty of claiming and managing Inserts. His agency submitted to the parties a spreadsheet with over five thousand separate licenses for Inserts, but noted this was only a fraction of the total.
• Lewis Hyde and Eric Saltzman have short and clear letters.
• Not everyone is opposed. ProQuest, formerly an objector, has withdrawn its objection.
• The National Federation of the Blind submitted a request to speak that also gives a short and plain statement of its reasons for strongly supporting the settlement.
• Various international trade groups filed letters in support of the settlement: the Association of Canadian Publishers, the Australian Publishers Association, the Canadian Publishers’ Council, the UK Society of Authors, and the UK Publishers Association. The UK Society of Authors may be, correct me if I’m wrong, the first authors’ group other than the Authors Guild itself to come out in favor of the settlement.
• Paulina Borsook’s letter describes her journey from supporting the settlement to opposing it.

Thanks to the hard work of the dedicated team of NYLS students, the Amended Settlement and Responses page at the Public Index is up to date with the complete collection of filings thus far.

Here are some of my picks for the most interesting filings to come in yesterday. This list is far from complete, but these are the ones that I felt most had something new and interesting to say or were most fun to read:

• Amazon’s brief is really hard-hitting. Agree or disagree with its substantive points, you have to admit that this is a superbly executed piece of technical legal advocacy. The highlight is a close discussion of the Reseller program in the amended settlement: unsurprisingly, Amazon thinks that it makes the settlement worse, not better.
• The Open Book Alliance supplemental brief is more informal and more cutthroat. It works the crowd—this is a legal document also intended to be read by non-lawyers. Also, watch the brief’s tone: it’s a very carefully modulated combination of anger, contempt, sadness, pity, and soothing rationality. The argument that Google is trying to leverage the settlement into control of the search market is worth a close read.
• The non-Anglophone coalition in opposition is smaller than it used to be, but still against the settlement. The new battlefront is not just objecting to being included at all, but also attacking the difficulty of determining whether a book falls within the settlement at all. Many foreign publishers, apparently, haven’t been keeping records of their United States copyright registrations, not since the U.S. accession to Berne eliminated the registration threshold for foreign copyright owners. I thought the best brief on these issues was the one filed for an international group with lead objector Carl Hanser Verlag.
• The Arlo Guthrie objection goes over some familiar turf, but it also has a nice section on the difficulty of using the Google-supplied books database.
• The best discussion about the meaning of “fiduciary” obligations and whether the UWF will meet them comes from the state of Connecticut.
• The most interesting new objector was AT&T. The brief itself, although polished and detailed, has a sort of me-too quality: rephrasing arguments that will be familiar to close watchers of the settlement. It’s more of a confirmation of AT&T’s intense hatred of Google: whatever Google wants, we should try to stop. The proffered reason that AT&T will be harmed by the settlement: it competes with Google in online advertising and in local and mobile search.
• The second-most interesting new objector was a group of Indian publishers.
• The newly launched Fordham IP clinic, led by its newly commissioned director, Ron Lazebnik, filed a brief on behalf of the SFWA, ASJA, and NWU. It has the most detailed discussion of the Author-Publisher Procedures and the mandatory arbitration provisions of the settlement in any filing to date.
• The best of the pro se letters to the court so far is the one from U.K. author Diana Kimpton.

We’re still in the process of uploading filings to the Public Index — I’ll write a follow-up post later on.

I just submitted to the court a set of supplemental comments on the IILP amicus brief from September. Here is the introduction to the six-page letter:

Dear Judge Chin:

The Institute for Information Law and Policy at New York Law School submits these comments as an addendum to its earlier brief amicus curiae (IILP Brief). The IILP’s overriding concern is that the settlement tries to solve a legislative problem through the judicial system. The initial IILP Brief explained how this mismatch created dangers for class members and the reading public. It recommended that the Court insist on the modification of troubling provisions, seek additional sources of advice, and appoint separate counsel to represent the owners of orphan book copyrights. These recommendations were designed to repair substantive defects in the Settlement Agreement and to make the process fairer and more legitimate.

The Amended Settlement Agreement does not adequately address the IILP’s concerns. While it fixes some dangerous provisions of the Settlement Agreement, many remain ambiguous. Others are entirely untouched. It continues to pose real risks of unfairness to class members and the public. Procedurally, this haphazard response confirms the inappropriateness of using a class action settlement in this fashion. Even though the individual defects in the Amended Settlement Agreement all remain fixable in theory, their presence at this late date demonstrates that the process is flawed beyond repair.

Accordingly, this Court should reject the Amended Settlement Agreement. While the orphan works problem is serious, this massive class action settlement does not address it in a fair, just, and legitimate way. Approving the Amended Settlement Agreement would set a dangerous precedent for future cases and undermine democratic political processes.

This filing reflects the continuing evolution of my thinking on the settlement. I have gone from “Approve the settlement.” to explaining “How to Fix the Google Book Search Settlement” to being deeply concerned about the means it uses.” In September, our filing recommended further consultation and improvements to the class action process, in the hopes that sufficient oversight could keep it accountable and operating in the public interest. The letter filed today concludes that the way the settlement uses a class action is not salvageable.

I had been looking for a limiting principle: something that could justify a modified version of the settlement while also setting a clear boundary beyond which future cases could not go. But I have become convinced that no such limiting principle is likely to be apparent any time soon. Without one, there is no way to make the settlement consistent with the rule of law, and it should not be approved.

My thanks again to Daniel Kornstein and Mikaela McDermott at Kornstein Veisz Wexler & Pollard, who worked pro bono in helping draft, edit, and file the letter.

James Grimmelmann, The Amended Google Books Settlement Is Still Exclusive, CPI Antitrust Journal, January 2010:

The deal that Google would get under the proposed amended settlement in the Authors Guild case is exclusive in one very important sense. Many out-of-print books are so-called “orphan works”: they’re in copyright, but their copyright owners can’t be found. If you or I start printing new copies of these books, we’d be copyright infringers, subject to statutory damages of up to $150,000 a book—or even jail time. Google, on the other hand, will be authorized to sell online copies of these books. That’s exclusivity: permission to do what is forbidden to others.

Some pro-settlement commentators have challenged this view. They believe that the market for electronic editions of orphan books is open to Google’s competitors. They make three principal claims: first, that the settlement creates no new entry barriers; second, that it explicitly enables the new Book Rights Registry to issue licenses to competitors; and third, that competitors could reasonably expect to obtain class-action settlements substantially identical to Google’s. All three of these propositions are wrong. In this essay, I will explain why.

Here is an ungated PDF version for those of you who, like myself, are not subscribers to the CPI Antitrust Journal. This, by the way, is the journal formerly known as Global Competition Policy; it ran a special issue on the settlement in the fall.

FYI, as filings come in over the next few days, I’m posting the brief blow-by-blow to Twitter, which is optimized for this sort of thing. Posts here will be reserved for longer analysis.

As the January 28 deadline approaches, the first filing in the second round has arrived. Canadian author Dina Cox has opted out. Post your guesses of how many total filings there will be this time around in the comments.

Larry Lessig has a long essay on the settlement in the latest issue of the New Republic, For the Love of Google Culture. (Here’s a printer-friendly version, but be warned: it’s a little too printer-friendly.) It starts off on a surprising note: talking about the immense difficulty of clearing rights for documentary films. The result is that after their initial release, many documentary films end up in legal limbo: filled with brief clips whose licenses have expired, unable to be shown in any medium.

What does this have to do with Google Books?

So notice, then, how different our access to books is from our access to documentary films. After a limited time, almost all published books (but not all: put aside picture books, poetry, and, for reasons that will become obvious, an increasing range of relatively modern work) can be republished and redistributed. No heir of a long-dead author will stop us from accessing her published work (or at least the heart of it—some would say that the cover, the foreword, the index might all have to go). But the vast majority of documentary films from the twentieth century will be forever buried in a lawyer’s thicket, inaccessible (legally) because of a set of permissions built into these films at their creation. …

The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed. It is the opposite of the old slogan about nuclear power: every bit gets metered, because metering is so cheap. We begin to sell access to knowledge the way we sell access to a movie theater, or a candy store, or a baseball stadium. We create not digital libraries, but digital bookstores: a Barnes & Noble without the Starbucks. …

And what this means, or so I fear, is that we are about to transform books into documentary films. The legal structure that we now contemplate for the accessing of books is even more complex than the legal structure that we have in place for the accessing of films. Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.

He proposes redrafting copyright law, rather than ” rely upon special favors granted by private companies (and quasi-monopoly collecting societies) to define our access to culture.” He has three specific proposals for reforms:

The first is to make this property system more efficient. … A better solution would be to shift to the copyright owners some of the burden of keeping the copyright system up to date, by establishing an absolute obligation to register their work, at least after a limited time. … The government should not run these registries. … This maintenance requirement should apply to books alone—for now. …

The second obvious change is to build legal-thicket weed whackers. … For any compiled work—like a film, or a recording—more than fourteen years old (a nod to our Framers’ copyright term), the law should secure an absolute right to preserve the work without burden to the current owner. … Beyond preservation, however, the rule will have to be more complex. The law should enable a simple way for the compiled work to clear perpetual rights to that work alone, so that it can be made available, even commercially, forever. … It requires giving up the idea that the elements in a compiled work—the music in a film, for example—have a continuing power to block access to, or distribution of, that work. …

The third change is the most difficult … In the most abstract sense, we need to decide what kinds of access should be free. And we need to craft the law to assure that freedom. … The one extreme, pushed by copyright abolitionists, that forces free access on every form of culture, would shrink the range and the diversity of culture. I am against abolitionism. And I see no reason to support the other extreme either—pushed by the content industry—that seeks to license every single use of culture, in whatever context. That extreme would radically shrink access to our past. … Instead we need an approach that recognizes the errors in both extremes, and that crafts the balance that any culture needs: incentives to support a diverse range of creativity, with an assurance that the creativity inspired remains for generations to access and understand.

Putting his argument to one side, I’m in awe of Lessig’s skill as a rhetor. I can all but hear his voice: moral urgency in calm and measured tones.

UPDATE: Fixed the title of Lessig’s piece. That was a telling goof on my part, wasn’t it?

Interesting interview with a compulsive book uploader and downloader. Lots of interesting details, but I found the following most striking:

TM: How long does it take you to scan a physical book?

TRC: The scanning process takes about 1 hour per 100 scans. Mass market paperbacks can be scanned two pages at a time flat on the scanner bed, while large trades and hardcovers usually need to be scanned one page at a time. I’m sure that some of the more hardcore scanners disassemble the book and run it through an automatic feeder or something, but I prefer the manual approach because I’d like to save the book, and don’t want to invest in the tools. Usually I can scan a book while watching a movie or two.

Once scanned, the output needs to be OCR’d – this is a fairly quick process using a tool like ABBYY FineReader.

The final step is the longest and most grueling. I’ve spent anywhere from 5 to 40 hours proofing the OCR output, depending on the size of the book and the quality of type in the original. This can be done in your OCR tool side-by-side with the scan of the original image or separately in your final output type (RTF, DOC, HTML, etc.). If there are few errors on the first few pages of text my preference is to proof in RTF, otherwise I do the proof within Finereader itself.

That’s a lot of time.

Another Huffington Post column from Samuelson, this one on the impending opt-out/objection deadline:

January 28 is the last day on which owners of copyrights in books published in the U.S., UK, Canada, and Australia can opt out or object to the proposed settlement of the Google Book Search (GBS) class action lawsuit initiated in 2005 by the Authors Guild.

There is a huge difference between opting out and objecting, and copyright owners who dislike the settlement must choose between them.

Opt-outs will not be bound by the settlement. (This does not necessarily mean that Google will not scan your books or that it will remove them from GBS; this must be separately requested.) Although opt-outs can separately sue Google for infringement, this is probably not a sensible option for most authors because of the litigation expense. Opt-outs are not precluded from later negotiating a deal with Google to make their books available through the Google Partner Program (GPP). …

For what it’s worth, I’m objecting to the settlement, not opting out. Academics like me tend to want as many books as possible to be widely available to the public. The more opt-outs there are, the less likely GBS is to achieve the lofty ambitions of being a universal digital library to make the knowledge in books more accessible to all. My objection is aimed at making the GBS deal fairer for academic authors whose books constitute a substantial majority of books in GBS.

Pamela Samuelson and Cindy Cohn spoke. I haven’t listened to the audio, but hope to have a report on it up here … sometime.

Great fieldwork on why Google has had trouble connecting with most non-elite Chinese users: nationalism, branding, and the email/IM paradigm split all play a role.

Ed Hasbrouck links to the eBook Converter. Yours for the low, low price of $29.90, it will “Download Google Books to PDF File”:

Google books can be viewed online but there is no way to make the contents available offline easily, Google book download is tools to download parts or entire books in pdf format. it is quite easy to use like a browser, one-click to download any book available in “full view” from Google books.

The potential copyright liability of the app’s creators and users would make a good exam question in an introductory copyright course. Its implications for the settlement would make a good paper topic in a copyright seminar.

Garry Kasparov, The Chess Master and the Computer, New York Review of Books (Feb. 11, 2010

In 2005, the online chess-playing site Playchess.com hosted what it called a “freestyle” chess tournament in which anyone could compete in teams with other players or computers. Normally, “anti-cheating” algorithms are employed by online sites to prevent, or at least discourage, players form cheating with computer assistance. (I wonder if these detection algorithms, which employ diagnostic analysis of moves and calculate probabilities, are any less “intelligent” than the playing programs they detect.)

Lured by the substantial prize money, several groups of strong grandmasters working with several computers at the same time entered the competition. At first the results seemed predictable. The teams of human plus machine dominated even the strongest computers. The chess machine Hydra, which is a chess-specific supercomputer like Deep Blue, was no match for a strong human player using a relatively weak laptop. Human strategic guidance combined with the tactical acuity of a computer was overwhelming.

The surprise came at the conclusion of the event. The winner was revealed to be not a grandmaster with a state-of-the-art PC but a pair of amateur American chess players using three computers at the same time. Their skill at manipulating and “coaching” their computers to look very deeply into positions counteracted the superior chess understanding of their grandmaster opponents and the greater computational power of other participants. Weak human + machine + better process was superior to a strong computer alone, and, more remarkably, superior to a strong human + machine + inferior process.

From time to time, I’ve argued that the Google Books settlement tries launder copyright reform legislation through through a class-action settlement. In response, people often argue that Congress isn’t likely to pass copyright reform, or will foul up the task even worse if it tries. True or not, this misses the point. As outside critics, we can debate whether courts or Congress are more competent to fix copyright. But if the courts give up on Congress, then all is lost, not just for copyright, but for our constitutional democracy as well.

A little birdie sent me the text of the letter Gail Steinbeck sent announcing her decision to opt into the settlement:

Dear Andrew and my faithful Author friends,

This email is to inform you that Thomas Steinbeck on his own behalf and as the son of John Steinbeck, on behalf of John Steinbeck’s literary library, as well as Arlo Guthrie on his own behalf and on behalf of his father, Woody Guthrie and their literary and music library have chosen to opt-in to the Google Book Settlement.

First, on behalf of both families, we want to thank Andrew and his team for taking up the cause with such vigor and intellect. And secondly, I want to thank all of you, the Authors, for remaining engaged and focused upon the problems with the original settlement and for joining us as we tried to do the right thing. I think we made great strides in cleaning up some of the flaws to the original settlement and either way, we managed to bring the issue to the forefront of the debate on an international level, while creating many resolutions to some of the more glaring obstacles to a settlement.

We chose to opt-in for a number of reasons that I will discuss below. Let me start with the Guthrie family debate. Thanks to the strenuous efforts of Carl Hampe, Esq. at Baker & McKenzie and Charles Sanders, Esq., on behalf of the Songwriter’s Guild, with the help of Jan Constantine and Paul Aiken at the Author’s Guild, they were able to negotiate a major revision for musical notation excerpts in the Google database that will require Google to negotiate for these rights directly from the creators and music copyright owners that have not granted such rights. On the other hand, if the lyric writer doesn’t want their excerpted words subject to search and display, they may either opt-out or exclude the search and display of the lyrics by notifying the registry of their wishes. Most significantly, the settlement prevents Google from raising a fair use argument to avoid its duty under the settlement, which requires them to follow the lyricist’s exclusion instructions.

According to Rick Carnes, President of the Songwriters Guild, The Author’s Guild was instrumental in their negotiations and helped to carve out a settlement agreement that allowed the SGA to resolve their issues. Under these newly negotiated terms, the word “books” has been redefined to automatically exclude any work in which twenty or more percent of the pages consist of musical notations or tablature. This is a huge victory for the Songwriters and one that was clearly assisted by Arlo Guthrie stepping forward to voice his objections.

Our situation is much more complex. We have been litigating for the past seven years, and in that time, we have learned to choose our battles. Upon our discovery of Google’s infringement and the settlement talks, we decided that this was an important dispute. And though I agree with you that there are a few more issues that could be resolved in our favor, the majority of the problems that we found to be troubling have been addressed. A settlement is called a settlement for a reason, and when one happens, everyone has to give a little; otherwise, we would be battling it out in court for years to come. We have been through that and though it looks romantic on paper, there is nothing fun about litigation. It is a costly and traumatic resolution to a controversy.

The trademark issue was a huge problem for us and it has been corrected. Judge Chin agreed that the members of the class needed more time and better notice so that was a prodigious win for us. Rather than continue to swell your heads with the successes of our mission, I will continue with our reasoning behind our exercise to opt-in to the settlement.

My husband is a member of the Author’s Guild and has been for many years. In no way, do we believe that they are the enemy. After all, the staff at the Guild have nothing to gain by fighting this battle and if anything, they have lost years of their lives and have spent a small fortune to protect the rights of their members. It would have been next to impossible to independently herd a group of authors together to finance a lawsuit in objection to Google’s reprehensible acts. We are only here because The Author’s Guild led the charge, not only on behalf of their membership, but also as a spokesperson for all the creators of intellectual property worldwide. That may not have been their initial intention, but it is what ultimately happened, and when it did, Jan Constantine and Paul Aiken stepped up to the plate to try to resolve the problems, hand in glove with the Copyright office and the Department of Justice. I say, bravo to them for their efforts.

In our case, most importantly, it gave us sway over the copyrights that strangers are trying to steal from us. Our literary agents are trying to wrest away control over the works of John Steinbeck from my husband and our niece. Because the Google problem is a settlement agreement before a separate court, an agent does not have the right to make a decision on behalf of the rights owner, that reason alone carries significant weight for us. But there were other matters to consider as well. Above and beyond our personal business problems, we have always felt that a rights registry system, similar to ASCAP, is a great idea and with Google footing the bill, it will now become a reality. At this point there is more to gain than to lose by stepping up to the negotiating table to settle the issue once and for all.

We are living in the age of information. Google may have been the first to attempt a scanning operation of such breadth and in such a bold manner, but they are unlikely to be the last. It is important for us to be on the cutting edge of such business opportunities and any legislation that will protect us from the “Torrents” of the world. We will be better served by being a part of the solution than by sitting on the outside looking in. Google has agreed to negotiate with the rights holder what we consider to be a relatively reasonable fee. Sixty-three percent (63%) is more than anyone in the e-book industry has offered to date, and in this settlement, if you are positioned to negotiate a higher fee, then you have that option. If you choose to stay out, you have no recourse other than to sue.

The Steinbeck and Guthrie families will not initiate a separate lawsuit against Google. We will continue to stay vigilant over the debate, and while we continue in our belief that what Google did was an imperious act of copyright infringement, it is time to step off the battlefield and evaluate our losses and our gains. When we look at the new conditions of the revised settlement, it meets our standards of control over the intellectual properties that would otherwise remain at risk were we to stay out of the settlement. We are much more vulnerable to piracy by remaining out of the settlement, than by opting into the settlement.

All of you have been remarkable champions of this issue and we remain eternally grateful for your efforts. If you want to talk, I am happy to further explain our position, but whatever happens, I hope you will do what is best for you and your family after taking the hard earned time we gained through our efforts, to further study the debate and your options. You have until Thursday, January 28, 2010 to opt-in.

Thank you again for your support. All of you are brave and wonderful souls and I hope that we can stay in touch.

Warmest regards,

Gail Steinbeck

Big news: the Steinbeck and Guthrie families are going to opt in to the amended settlement. The Steinbecks were the lead party in winning the four-month delay and Arlo Guthrie was the lead objector in one of the major author-side filings. This is a significant coup for the settlement’s proponents. Here’s the story from the New York Times and the Publishers Weekly version. A shiny new donkey for whoever brings me the official Authors Guild press release or the “letter shared with PW” sent by Gail Steinbeck.

Some familiar names on the list of co-signers, including Jane Yolen.

The Open Book Alliance has sent an open letter to Congress in favor of a “comprehensive digital public library” but arguing that the “current Google Book Settlement process has failed to deliver on this promise.” It advocates an “open process” that creates a “public guardian” for the resulting database. Strangely,although the letter is addressed to the members of Congress and it recommends “an open and deliberative conversation in Congress,” it doesn’t actually ask those members to do anything to further that conversation. Instead:

The OBA calls on Google to halt its current strategy, which focuses on fattening its profits and ensuring its continued domination of the Internet search market at the expense of broader social responsibilities.

Instead, Google, and the parties to the proposed settlement, must instead commit to joining this new inclusive process and engage the broad audience of advocates that share a passion for the digitization of books, promoting open competition and access to digital books for the widest number of people.

This one is hot off the presses—very hot. It makes reference to Google’s recent moves in China; that news is only a week old. Members of the of the Authors Guild’s executive board, led by Roy Blount, wrote a letter in defense of the settlement, to correct some of Robert Darton’s “fundamental errors” in his essays for the New York Review of Books:

This basic misunderstanding seems to motivate Mr. Darnton’s most sweeping warnings, such as his conjecture that the settlement “looked likely to determine the digital future for all of us.”

On the contrary, out-of-print books are not destined to shape our digital future. Lost in the discussion is one cardinal fact: the current marketplace for these books is, by definition, nil. The great promise of the settlement is to create a resource that would otherwise not exist. …

Mr. Darnton suggests that the Authors Guild will “draw income” from the settlement. Not a penny—not now, not ever. (Countless authors, however, will receive checks in the mail as their out-of-print books, some long forgotten, come back to life.)

Mr. Darnton has put forward a variety of scenarios for digitizing out-of-print books, some more realistic than others, some admittedly utopian. They tend to require acts of Congress.

The Google settlement should not be weighed against these dreamy alternative futures. It resolves a pressing legal dispute in a manner that will work a great good for readers, while protecting the rights of authors. Every college and university will have free access to a collection of English-language works matching or exceeding that of Mr. Darnton’s at Harvard. So will public libraries. Everyone concerned with the place of books in our culture should welcome that.

Darnton replies:

Because Google is a powerful monopoly, it could charge monopolistic prices, and it could abuse its exclusive control of its databases in other ways, including violations of the privacy of its customers. Even if the current directors of Google remain faithful to their slogan, “Don’t be evil,” they might be replaced in the future by businessmen without a similar commitment to the public good. My criticism of the ASA is not directed against Google. On the contrary, it is meant to make the most of Google’s entrepreneurial energy and technological wizardry while preventing abuses by subjecting Google Book Search to the control of public authorities.

According to the solution I propose, Google and the rightsholders could profit from the sale of access to a separate digital database of books currently in print. All the other books would constitute a national digital library available to everyone, free of charge. Any author of an out-of-print but in-copyright book could opt out of this arrangement, and authors who accepted it would be able to realize a goal that is the highest priority for many of them: not so much to make money as to reach readers. Instead of lying in libraries unavailable to the great majority of the reading public, their works would take on new life, thanks to free access in a democratized digital realm.

I did not accuse the Authors Guild of trying to make money from the settlement. Instead, I expressed regret that the Book Rights Registry, which is to distribute the income generated by Google Book Search, will be composed only of representatives of authors and editors, who have an interest in maximizing that income by increasing the price of the institutional subscription. The Registry will not contain anyone to represent the interests of libraries or readers. Far from being aimed at the welfare of the reading public or the public in general, the settlement is a commercial deal negotiated privately by parties with a vested interest in its outcome.

Clay Shirky, A Rant About Women

Tom Coates, Should We Encourage Self-Promotion and Lies?

danah boyd, Whose Voice Do You Hear? Gender Issues and Success

The press release is here, in French.

The National Writers Union, a vocal opponent of the settlement, is presenting two workshops next week on its implications for writers. The first, co-sponsored with the ASJA and SFWA, will be held in New York on January 20 at 2:00 PM. The two confirmed speakers so far are myself and literary agent Lynn Chu; the Authors Guild has also been invited to participate. The second will be held in Berkeley on January 22 at 7:00 PM; it will feature Edward Hasbrouck, Pamela Samuelson, and Cindy Cohn.

Due to the substantial interest in the recent French decision against Google in the case brought by members of the Martinière publishing group, we commissioned a full English translation of the decision. Both documents are now available for download from the Public Index; they’re on our page covering proceedings in Europe. We hope that the translation will promote informed discussion of the international issues raised by the lawsuits and proposed settlement in the United States.

Yesterday, I refrained from blogging a new story that Google had temporarily broken off talks with Chinese authors. It was sourced only to Chinese news agencies and was thinly reported. I wanted to see whether the U.S. press could obtain a fuller explanation.

It transpired, however, that the Google-in-China story is much larger. In a post on Google’s official blog, its chief legal officer, David Drummond, announced a “new approach to China”. Google has been a a target of significant industrial espionage whose goal appears to be obtaining information on Chinese human rights activists. As a response, due to high-level conversations within Google, the company is rethinking its business in China:

We have decided we are no longer willing to continue censoring our results on Google.cn, and so over the next few weeks we will be discussing with the Chinese government the basis on which we could operate an unfiltered search engine within the law, if at all. We recognize that this may well mean having to shut down Google.cn, and potentially our offices in China.

Decisions of this sort are the subject of my article The Google Dilemma, which closes with a discussion of the very different search results available for “tienanmen” on Google.com and Google.cn. When I wrote the article, the American version showed protesters and tanks; the Chinese version showed the Gate of Heavenly Peace itself. Now, the Chinese version also links to articles about the protests and the crackdown.

This is inherently a political decision, whichever way it is made. Search shapes how we see and experience the world, and every decision about search engages with questions of values and the law. I think the values Google has chosen with this new decision are good ones: commitments to truth, open discussion, and democracy. It’s acting in a way consistent with its “Don’t Be Evil” motto and I salute them for it.

Others have and will say much more about this than I, but a few other important points come to mind:

First, this decision goes well beyond Google; it will have major diplomatic implications.

Second, Google’s move complicates, to say the least, the negotiations over a potential Google Books deal in China. After this move, I don’t expect either the Chinese courts (in the Mian Mian case) or the Chinese Written Works Copyright Society (in the negotiations) to be very receptive to Google positions.

And third, Siva Vaidhyanathan has been saying that the decision “nothing to do with censorship and human rights” because a move taken only on principle is “commercial malpractice” and “Google must have some good business reasons.” This view is unrealistic; it stems from the belief that because corporate managers are allowed to act solely in the interest of shareholder profit, all corporate managers do so. Google’s executives have always been clear that they take ethical principles into account in all their decisions. While many of us sometimes disagree with the specific applications, the ethical rhetoric is far too pervasive in the company not to exert a gravitational pull on its decisions. I don’t doubt that Google’s executives also weighed the commercial considerations heavily, but this is not purely a business decision.

UPDATE: Oh, yeah, one more thing. Look at one of the sources of the security vulnerabilities:

Drummond said that the hackers never got into Gmail accounts via the Google hack, but they did manage to get some “account information (such as the date the account was created) and subject line.”

That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.

“Right before Christmas, it was, ‘Holy s*, this malware is accessing the internal intercept [systems],’” he said.

In other words, a system set up to help the United States government spy on Google users turned out to also help the Chinese government spy on them, albeit in a different way.

Here’s a neat use of Google Books. The NYLS library now adds a Google Books link to its catalog web page whenever there’s an ISBN match between the title and an item in the Google Books database. That way, you can preview the book (to the extent Google allows) before visiting the library for the full thing. Here’s an example, using David Nimmer’s Copyright Illuminated: Refocusing the Diffuse US Statute. That’s $238 if you buy it direct from the publisher, so from my perspective it’s a good thing the NYLS library has a copy. When I go to the catalog page for it, there’s a link in the right margin with a Google logo that says “More about this title,” which opens the Google Books page in a frame. Very clever.

My talk last night to the Archivists Round Table went well. (We were even able to seat them at round tables!) It ended up being one of the clearer presentations I’ve given on the settlement and that the questions from the audience were outstanding. Here are my slides and here is the video.

From AFP (via ResourceShelf), France Accepts Google Role in Book Scanning:

France agreed Tuesday to work with Google to digitally scan French library books but insisted it would not surrender legal control of its cultural heritage to the US Internet giant.

Culture Minister Frederic Mitterrand said he would approach Google to discuss their involvement while also pressing on with France’s own digitisation efforts.

He approved an experts’ report published Tuesday which proposed a “partnership” with Google and its online library Google Books.

UPDATE January 23, 2010: See calimaq’s analysis (in French).

And here is a longer-format essay by Samuelson on the implications of the settlement for the future of books. From the introduction:

Part I discusses impediments to mass digitization projects, such as GBS, and how Google overcame them. It explains the litigation that challenged Google’s mass digitization project, the proposed settlement agreement, and some reasons why the settlement has become controversial. Part II contrasts some glowingly positive predictions about the future of books if the GBS deal is approved with predictions of far more negative futures for books that some critics foresee if the GBS settlement is approved. Part III considers what may happen to GBS and the future of books in cyberspace if the settlement is not approved. It recommends that major research libraries collaborate in the creation of a digital library of books from their collections as an alternative to GBS, regardless of whether the proposed settlement is approved. This digital library could greatly expand access to books, while avoiding certain risks to the public interest that the GBS settlement poses.

And from the conclusion:

This Article has shown that although there are some reasons to be optimistic about the future of books in cyberspace if the GBS settlement is approved, there are even more reasons to be worried about the settlement and its consequences for competition and innovation down the line, as well as for sustained public access to knowledge, and to doubt that the bright promise proclaimed by GBS proponents is likely to be achieved.

The future of public access to the cultural heritage of humankind embodied in books is too important to leave in the hands of one company and one registry that will have a de facto monopoly over a huge corpus of digital books and rights in them.

Google has yet to accept that its creation of this substantial public good brings with it public trust responsibilities that go well beyond its corporate slogan about not being evil.

It’s just a slide deck (I believe from this conference), but it seems like a very interesting presentation. Samuelson is no fan of the settlement, but the presentation also makes clear how many of the settlement’s issues are tied to deeper, structural problems in our dysfunctional system of copyright law.

Andrew Smith, a 2L at New York Law School and a member of the PIBSI team, filed the following report on the Federalist Society event from December 14, which featured Columbia law professor C. Scott Hemphill, University of Chicago law professor Richard Epstein, and Jonathan Jacobson of Wilson Sonsini Goodrich & Rosati. (This report is based on the video of the event, rather than in-person attendance):

Hemphill began with a short history of the Google Books project, including a discussion of its potential benefits and the main objections.

Jacobson spoke next, first laying out the mechanics of the project and noting Google’s belief that its scanning was a fair use. He then went into a few specific provisions in the settlement, describing the institutional subscription as allowing smaller universities to have access to the same library as more renowned institutions. He mentioned revenue sharing, claiming that Google’s model afforded a better percentage of revenue than Amazon’s, the ability for author’s to set their own prices, and what he sees as incentives for rightsholders to come forward.

Jacobson’s next comments drew heavy fire from a member of the crowd. He stated that Amazon and Microsoft have funded most of the objections predicated on antitrust concerns. After loud vocal displeasure from the audience, he clarified that the Department of Justice, although not funded by Amazon or Microsoft, adopted the two companies’ arguments.

As Jacobson sees it, there are two fundamental antitrust questions. One is whether consumers are better off with settlement than without it, and the other is whether the settlement will engender more literary output. According to him, the answer is yes on both accounts, because the settlement actually lowers barriers to entry, and the controversial MFN clause was removed in the revised agreement. He then dismissed concerns about potential entry barriers and orphan works. He noted that unclaimed works, if not digitized, would be lost, so the settlement actually expands the world’s body of knowledge.

After Jacobson abandoned the remainder of his presentation in the interest of time, Hemphill again took the podium to make peace, mentioning that although Microsoft and Amazon have funded objections, a key supporter of the settlement, Einer Elhauge, is funded by Google. Hemphill stated that funding shouldn’t impact the legal question, whether the settlement is better than none at all. He asked Epstein to start off by analyzing this question.

Epstein first mentioned that the settlement should be analyzed in light of alternatives, which then become the baseline by which to measure the agreement. He stated that the big issue is whether, with approval of the settlement, Google would acquire a dominant position, but he also hinted that there should be some sort of “pioneer return” on the company’s investment. He then criticized the agreement as a bad use of a class action, lumping in non-voluntary entrants, but acknowledged that it is difficult to find a better alternative. He noted that the settlement could have simply provided for an injunction and damages, but in its present form the class representatives might no longer be appropriate, and there is a potential need to find better ones.

Epstein then detailed steps by which Google could remedy these concerns. Citing the Internet’s low transaction costs, he stated that an opt-in model would work best. He then remarked that if he were the judge, he’d break the settlement into three parts, one for each type of authorship. In regards to public domain works, there is no problem with acquiring rights. With orphans, Epstein stated that Google should make a list of all unclaimed works online, give the public 6 months to examine the list, then allow for an allocation of funds to a depository. If someone comes forward, they should have rights to the funds and appropriate legal remedies. Epstein then stated that books in print, under copyright, should be included on an opt-in basis, with Google spelling out reasons for opting-in and presenting a standard contract, but at the same time allowing custom claims for the rightsholders who choose that.

Before the speakers took questions, Jacobson was afforded a rebuttal to Epstein’s points. He argued that analysts can’t parse the proposed settlement and look at it piece-by-piece, because there are trade-offs throughout negotiations. He stated that the class action device’s purpose is to aggregate claims, and in his view, everyone affected knows about the deal, and the easy process by which an individual may opt-out.

The panel then took a number of questions from the crowd. The first dealt with notification, and Jacobson stated that Rule 23 requires parties to provide the best notice available, and in this case that was publication. Epstein took minor issue with that characterization. In response to another question, Jacobson stated that the Constitution doesn’t address digital rights, and that Google shouldn’t be required to wait for Congress to address the issue. Epstein replied that an opt-in model wouldn’t require Congressional blessing at all. Jacobson then took issue with Epstein’s response, claiming that Google worked for years trying to get Congress to act on digital rights.

After more vocal disagreement by Lynn Chu, Hemphill urged everyone to step back and relax. He then referenced comparisons made to BMI, and asked the speakers if they saw similarities. Neither Epstein nor Jacobson saw it as a worthwhile comparison, for differing reasons. To Epstein, the Registry is a sufficiently powerful intermediate, and to Jacobson, this situation is not as complex.

One member of the audience questioned Google’s financial logic, noting that at $150,000 per violation, multiplied by millions of violations, the company would face financial ruin in lawsuits brought from those who opt-out. Epstein offered a guarantee that this wouldn’t be the case, without elaborating much, as the discussion was running short on time.

The panel ended with questions on institutional subscriptions and advertising that required only minor explanation by Jacobson.

Three leading anti-settlement writers groups—the NWU, the ASJA, and the SFWA—have written a letter to those members of Congress who’re also authors. The conclusion:

As fellow authors, you know the freedom to negotiate your own book contract is basic and precious. We hope you will join us in speaking in opposition to the amended settlement. The Department of Justice detailed fundamental flaws to the Court in September. A preponderance of those flaws remain.

I’m so used to seeing “preponderance of the evidence” used as a standard of proof that this last phrase struck me as odd. Putting it that way suggests, to my ear at least, that eliminating a “preponderance” of the flaws would suffice, no matter how serious the ones that remain are in absolute terms.

As you may recall, Ursula LeGuin resigned from the Authors Guild over its role in the Google Books settlement. She’s now written a follow-up on what she terms the “Google Putsch.”

How, where, can I ask writers who are unhappy with the Settlement to speak up — to stand up and be counted? We don’t have to agree on every detail, but I think there are a lot of us who see it as urgently important to let it be known that writers support the principle of copyright, and want the Copyright Office, the judges, the publishers, and the libraries to know that we intend to keep control of our work, in print or out, printed or electronic, believing that the people who do the work, rather than any corporation, should have the major voice in how it’s used and who profits from it. …

So, if you’ll give me your name as a professional writer willing to be known as opposed to the Guild Settlement and in favor of protecting copyright and authors’ rights against corporate grabs, I will –

Well, what will I do? Compile a list.

Then what?

If the list grows to a respectable size, should I post it on my web site?

Would you be willing to let me send your name as part of the list to the NWU so they’d have a list of writers opposed to the Settlement?

Anybody got a better idea? Tell!

A new page on the settlement administration site explains:

The parties are working to improve the Claim Form. We encourage Rightsholders to claim and manage their Books and Inserts online at this website, but if you have had problems doing that or prefer to claim by email or regular mail, authors, their heirs and/or agents and other Rightsholders may initiate the claiming process by sending a list of their works to the Settlement Administrator. A list of both author(s) and Book or Insert titles(s) is sufficient, although the process of claiming your works will be much easier if you are also able to provide any or all of the following information: ISBN, publisher, publication date and place of publication. All this information should be available in the book itself.

You may email your list to BookSettlement@RustConsulting.com in either the body of the email or as an attachment in Excel, Word, PDF, or any other standard electronic format, whichever is easiest for you. If you would prefer, you can mail a hard copy of your list to the Settlement Administrator at the following address:

Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 9364
Minneapolis, MN 55440-9364
UNITED STATES OF AMERICA

Please include your name, the name of the author or agency (if different) (or, for publishers, the name of the publisher), email address (if you have one), mailing address, and telephone number so that the Settlement Administrator can contact you to help you complete your claim.

If you choose this simplified procedure, please be patient, as it will likely take the Settlement Administrator several months to contact you, and you may not be contacted until after the Settlement is approved by the Court and there can be no more appeals. There is, however, no reason to worry. First, Google will not display your work under the Settlement unless and until the Settlement is finally approved. This will take a considerable amount of time. You will be notified when this occurs, and reminded that you can direct that your works not be displayed by Google, if you have not done so already. Second, although the deadline to claim a Cash Payment is March 31, 2011, your claim will be timely if you have submitted your list to the Settlement Administrator before that date, regardless of the date when your claim is actually completed.

If you have any questions about this simplified claiming procedure, please contact the Settlement Administrator.

The sentiment—make the process of responding to the settlement’s demands less onerous on copyright owners—is admirable. The implementation strikes me as quite ill-advised. Let me count the ways:

1. Why change horses in midstream? Materially altering the procedure in the middle of the response period may increase the confusion, not reduce it.
2. In fact, there are now three horses (four if you count the original and amended deadlines separately): the old claim form, the modified one, and the “send us a letter” option. Isn’t this getting to be rather a lot?
3. That new, modified claim form is currently vaporware. When will it be ready, and will preannouncing it cause some copyright owners to botch the process because they decided to wait?
4. Why couldn’t this simplified claim form have been released before the second opt-out/objection period began? The parties had plenty of time to think about problems with the old claim form, after all.
5. Given how much time has elapsed in the opt-out/objection periods and how little now remains, presumably the parties are not going to rest solely on the modified form as being sufficient to satisfy Rule 23. Why, then, introduce the modified one? Whatever changes they make are all but certain to make the old one look bad. Edits almost always do.
6. Isn’t there now a material difference between the difficulty of claiming works and the difficulty of opting out? To claim, the parties just say “send us a letter”; to opt out, they direct copyright owners to the web form. Mightn’t this be perceived as biasing the question?
7. Wait several months to be contacted after you send a letter? How will you know that it was received until it’s far too late?
8. What will happen if the claims administrator mistakes an opt-out letter for a claim letter, or vice-versa? Some of the opt-out letters the court got were at least mildly ambiguous, and this new procedure seems to open the doors to further trouble.

I do not expect good things to come of this change.

Hoisted from comments, two radio interviews with Canadian author Katherine Gordon on the settlement:

• On the Coast, January 7 (RAM)
• As it Happens, January 8 (WMV)

Another complaint about scan quality and metadata, with thoughts about concentrated power and transparency, this one from Phil Patton in the Design Observer Observatory.

Siobhan O’Leary, Germany Challenges Google Books at Its Own Game, Publishing Perspectives:

In fact, Germany now has a plan to challenge Google at its own game. In December, the government announced the Deutsche Digitale Bibliothek (DDB) — the German Digital Library — a plan to connect the databases of 30,000 German cultural and academic organizations and create an Internet portal that would be available to all German citizens. …

Neumann added that project would be different from Google in that it would seek the permission of publishers and copyright holders before digitizing their work, rather than using Google’s own “opt-out” approach.

Despite this clearly defined plan, not everyone is convinced that it will avoid all of the pitfalls of the original Google Settlement. Several major German publications, including Spiegel Online, the FAZ and the Tagesspiegel, object to the fact that the project is not due to launch until 2011, and argue that it poses some of the same problems as Google Books. Most notably, as long as German law continues to protect the copyright of “orphan works” (books without a clear copyright holder) for 70 years after the death of the author, the DDB will not be able to provide access to a good number of relatively recent works that are no longer available for purchase.

What has also becoming increasingly clear since the announcement was made is that many German publishers do not necessarily want a distinct alternative to Google Books, but simply to have their own agreement with Google.

German Justice Minister Lashes out at Google over Data Protection, Reuters via Deutsche Welle:

In an interview with German magazine Spiegel, Sabine Leutheusser-Schnarrenberger said the company must clearly inform users of what is happening with their data.

“If this does not occur, then perhaps we will be required to step in as lawmakers,” she said. …

“I am bothered by this kind of rushing forward, this megalomania, which is also apparent in the case of Google Book Search,” she said, adding that the US-based internet business was becoming “a monopoly, similar to Microsoft.”

Multiple venues (AP, AFP, NYT) are reporting that Google has apologized to Chinese authors whose books it scanned and promised to turn over a list of the books it has scanned. Piecing together the stories, this is my understanding of the state of affairs:

• The letter and apology went to the China Writers Association.
• Google is in talks with the China Written Works Copyright Society “to try to resolve outstanding copyright issues and agree terms for compensation” (AFP). According to the letter, Google “Google plans to work out a settlement proposal with Chinese writers by March and reach a formal agreement by June.” (NYT)
• Novelist Mian Mian is pursuing an individual civil lawsuit against Google.

As the precise legal status of the CWS and CWWCS remains unclear to me, it would be unwise for me to speculate further on how what all of this means. The CWS is an “association of 8,000 Chinese writers” (NYT) and is “one of the groups leading accusations against Google” (AFP). The CWWWCS is described by the AP as “government-affiliated” and the NYT explains that it “manages Chinese copyrights.” Further deponent sayeth not.

UPDATE: I believe that this is the website of the CWWCS. I am given to understand by correspondents that CWWCS:

• Has been approved by the Chinese government as a collecting society.
• Is the only collecting society currently in operation in China for literary works.
• Represents authors on an opt-in basis.
• Is not a member of IFRRO, and it is unclear whether it will be.

Perhaps unsurprisingly for a Chinese entity of this sort, whether it should be classed as “governmental” or “private” does not appear to be a question with a determinate answer.

Comments over at the Public Index have been quiet with the holidays and the digesting of the amended settlement. But I wanted to call out one comment of interest, by UK author Diana Kimpton, who is concerned about the quality of the links between different editions of the same work in the registry’s database. She writes:

This clause is completely unworkable. It is impossible for an automated database system such as the one at the heart of the Google Book Settlement to indentify which books contain the same Principal Work. Different editions have totally unrelated ISBNs and may not even have the same title. I have been in touch with the database people about this and been told,” The of linking editions is something that is continually being worked on. As mentioned in the last answer, when you file a claim as the rightsholder to a book, whether it be deemed commercially unavailable or available, you control the operative settings to the book. You may direct Google want display settings they are allowed to use for the book. ” (typo is theirs, not mine)

I’ve also spoken to them by phone and got the impression they don’t think that linking the editions is very important. When I quoted this clause, there was a long silence followed by a promise to find out more and phone me back. They haven’t. I suspect that’s because they haven’t got an answer.

Examining the database shows that the non-working of this clause leaves editions of some very high profile books deemed to be not commercially available although it’s easy to buy other editions in the shops.

Gillian Spraggs then adds, “Read 3.2(d)(iii) Mistakes and it’s easy to see why Google doesn’t view this as a priority matter.” That section reads, in part:

If a Book was mistakenly determined by Google not to be Commercially Available, then the Rightsholder of the Book may notify Google … of such mistaken determination. … If the Rightsholder asserts that the Book is Commercially Available, then, as Google’s sole obligation and the Rightsholder’s sole remedy … , Google promptly shall correct the determination as to whether the Book is Commercially Available within thirty (30) days.

Spraggs’s point is that this procedure arguably leaves Google with insufficient incentive either to get the edition-linking right in any particular case, or to develop better edition-linking algorithms in general. Arguments about database flaws are by now familiar, but I though that Kimpton’s personal experience added to that conversation.

The recent annual meeting of the American Historical Association featured a panel on Google Books. Dan Cohen spoke more in favor and Paul Duguid more against; they were joined by Brandon Badger from Google.

Here’s the Inside Higher Ed story; here are videos of Cohen and Duguid. Cohen has posted his remarks. Here’s a sample:

Is Google good for history? Of course it is. We historians are searchers and sifters of evidence. Google is probably the most powerful tool in human history for doing just that. It has constructed a deceptively simple way to scan billions of documents instantaneously, and it has spent hundreds of millions of dollars of its own money to allow us to read millions of books in our pajamas. Good? How about Great? …

Google is also good for history in that it challenges age-old assumptions about the way we have done history. Before the dawn of massive digitization projects and their equally important indices, we necessarily had to pick and choose from a sea of analog documents. All of that searching and sifting we did, and the particular documents and evidence we chose to write on, were—let’s admit it—prone to many errors. Read it all, we were told in graduate school. But who ever does? We sift through large archives based on intuition; occasionally we even find important evidence by sheer luck. We have sometimes made mountains out of molehills because, well, we only have time to sift through molehills, not mountains. Regardless of our technique, we always leave something out; in an analog world we have rarely been comprehensive.

I was just looking up a James Boyle article to cite it when I noticed something funny about the title:

Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property

Notice that? There’s an Oxford comma in the first part of the title, but not in the second.

The latest ASJA newsletter (that’s the American Society of Journalists and Authors) has some harsh words for the settlement. The “President’s Desk” column by Salley Shannon (starting on page 3) is titled, “Trotting into History with Google 2.0 (Horse Manure Included),” and you can imagine where it goes:

This version is still the dog’s dinner, but it has a nice tablecloth beneath it. … It matters, chickadees, because this is an attempt to strip away your rights in the guise of helping you. It could cost you major money. … How does either settlement version relate to Google’s illegal scanning? It doesn’t. Period. That’s one of the huge problems that may, if we’re lucky and our lawyers are skilled, get this festering manure thrown on the garbage heap of history.

Later on in the issue, there’s an interview with literary agent Lynn Chu. (See pages 6–7 and 13 of the PDF). She also has some pointed criticism of the settlement:

This is a business enterprise for the Authors Guild. The Authors Guild is delighted by the idea of a permanent fiefdom in partnership with Google. It sees no issue with intruding itself into all authors’ business affairs, commandeering their money, and taking a cut, forever, with no consent. Somebody, they think, just has to sit down and rewrite every book contract to the satisfaction of the publishing cartel; somebody just has to serve as Google’s contracts and claims department and charge authors for it. For its part, Google is desperate to have this “Registry” with its cover of faux independence. The Registry effectively exempts Google from all threat of suit based on laws such as copyright, consumer fraud, contract, property, tort, and publishing law, as to nearly everything Google might do with all books again. It blacks out all market pressure and people power demanding fairness. Competition is outlawed. In economic reality, the Registry has no function but to serve Google. This is a vision of aggregator-only total control, purged of all pesky, annoying individuals. The aggregators get to plunder the loot first, then toss their leftovers to preferred (“registered”) individuals.

More in that vein, plus an argument about unfair treatment of Inserts, at the link.

Uber-distinguished legal scholar Richard Epstein has written an op-ed for the Financial Times, Google-itis: Beware of Class Action Settlements. He comes out largely against the settlement but with plenty of idiosyncratic twists. There is something in here to delight and to infuriate almost every observer. A few interesting bits:

In mid-December the Google Books Project suffered another blow when a Paris Court rejected the fair use defence to a suit of copyright infringement. The publishing group, La Martinière, brought suit against Google’s practice of making a single copy of a published work for use in its advertisement. … Google’s rationale is catchy, but the French courts were right on the money. …

If I had to pick a single word to describe Google Book Search, “advertisement” would not be it. The virtues of searchability go far beyond merely convincing people to buy things.

The French makes good sense because a successful market transaction can supply something that a fair use doctrine negates: financial compensation for authors whose works are included in the Google Books Project.

This way of putting things presumes that authors are entitled to compensation for inclusion in the search index. I assume that Epstein believes they are; I’d like to hear his rationale.

The initial barrage of criticisms rested chiefly on antitrust grounds that my Chicago colleague Randy Picker carefully analysed both here and here. It seems fair to say these concerns are largely mitigated in the Amended Settlement.

Antitrust being among the polymathic Epstein’s many specialties, this is a significant comment.

The clean victory of the publishers in France seem to preclude the possibility of a Gargantuan settlement there.

That takes the prize for best use of a capital letter I have seen this year.

Any mortal who reads the Google settlement, as I have, will be defeated by its obscurity and complexity.

Read literally, this sentence implies that either Richard Epstein is immortal or he’s been defeated by the settlement. Both of these strike me as unlikely.

The root difficulty lies in the simple fact this proposed settlement goes far beyond the contours of the original complaint. When the Authors Guild sued Google, its members were united. Authors and publishers, who squabble over all sorts of things, both wanted to stop the future infringements and to get damages for the past ones, which they could divvy up in accordance with their individual contracts. … Unfortunately, terms of Google settlement create unnecessary conflicts of interest between authors and publishers that cannot be easily papered over.

This is a notable move; it ties the future claims issues to the conflict between authors and publishers.

One troublesome feature is the formation of the Google Registry run by the Authors Guild whose term insulate Google from the direct claims of authors, even for an accounting of individual royalties, while allowing Google very broad access to aggregated data with immense value for nondisplay uses. In addition, no author can easily figure out the consequences of opting out.

I believe that some of the regular commenters on this blog are likely to agree with Epstein on these points.

Here is one caveat. It might make sense to allow Google to presume provisional consent for “orphan” works, narrowly defined, say, to cover books published 60 or more years ago, which are now out print, with standard royalties paid into a fund. The fear here is that works will remain dormant because no one is around to press the right radio button. Allowing immediate use with a reverse default has a good shot at passing the fair use test because the transactions costs for reaching these unknown authors are sufficiently high to allow for a market bypass.

Query: would this be in the class-action mechanism (and thus working only in Google’s favor), or would this be a general privilege that anyone could take advantage of?

I’ll be speaking to the Archivists’ Roundtable of Metropolitan New York next week about the Google Books settlement. These archivists often deal with orphan works, so the conversation should be particularly interesting. The event will be held at NYLS on the evening of January 12 is free to Archivists Roundtable members and NYLS faculty, staff, and students; $6 for all others.

Sidenote: January 12, 2010 will be the first annual World Fair Use Day, not to be confused with July 11, which is just plain old Fair Use Day. Do you think the WFUD organizers got permission from the FUD people to use the name?

I see that over the winter break, the Iowa Law Review has gone live with their new online supplement, the Bulletin. I’m happy to say that the inaugural issue contains a comment by Professor Susan Freiwald of the University of San Francisco on my article Saving Facebook, along with a brief response of my own. It was great fun to take part in the exchange; in addition to the thoughtful conversation with a scholar from whose work I’ve learned a lot, about how to protect privacy, it offered a nice chance to bring back a few of my favorite one-liners that didn’t quite make the cut for the main article. The issue also contains an elegant comment by Rebecca Tushnet on a Mark McKenna article on trademarks. Congratulations to the Iowa editors on their new online venture, and my thanks to Professor Freiwald for her perceptive comments.

Like others who have been on the Web from its early days, Lanier thinks the place has “lost its flavor.” Perhaps homepages in the mid-’90s did have a folk-art quality to them, though one heavily dominated by Simpsons and Star Trek references. Perhaps our regimented Facebook selves have made things more vanilla. Perhaps you did stumble down more idiosyncratic paths of knowledge before Wikipedia dominated the top Google search results. But these are the kinds of nostalgic observations that are ridiculous to anyone young. The Web hasn’t lost flavor; you’ve lost flavor. What Samuel Johnson wrote about his hometown holds true for the Internet: “No, Sir, when a man is tired of London, he is tired of life; for there is in London all that life can afford.”

The subject is the Tuyuca language of the eastern Amazon:

Most fascinating is a feature that would make any journalist tremble. Tuyuca requires verb-endings on statements to show how the speaker knows something. Diga ape-wi means that “the boy played soccer (I know because I saw him)”, while diga ape-hiyi means “the boy played soccer (I assume)”. English can provide such information, but for Tuyuca that is an obligatory ending on the verb. Evidential languages force speakers to think hard about how they learned what they say they know.

The whole of the article, on difficult languages, is fascinating.

Gillian Spraggs, UK author and author of The Google Book Settlement: A Survival Aid for UK Authors , has posted a new, shorter guide in the same style, a guide to the settlement for Insert authors: poets, essayists, and other writers of shorter works published in collections. It’s available in HTML, PDF, DOC, and ODT.

An online campaign by writers and copyright owners to object to the settlement; 102 signatories so far.