The Laboratorium
February 2010

Privacy as Product Safety


In non-Google news, I’ve just uploaded a draft of my latest paper, Privacy as Product Safety. I’ve been giving presentations on what I call the “Myths of Privacy on Facebook” and when I was invited to present at a symposium on Internet expression at Widener University, I decided to expand the presentation into a real essay. It’s forthcoming in the Widener Law Journal’s June issue, and the new twist is that I draw a parallel between the privacy problems facing users of Facebook and other social software with the problems of product safety facing consumers. Here’s the abstract:

Online social media confound many of our familiar expectaitons about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.

Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users’ personal information in ways they don’t expect is a defectively designed product, and many concepts from products liability law could usefully be applied to the structurally similar problem of privacy in social software. After setting the scene with a discussion of how people use Facebook and why standard assumptions about privacy and privacy law fail, this essay examines the parallel between physically safe products and privacy-safe social software. It illustrates the value of the product-safety approach by considering another ripped-from-the-headlines example: Google Buzz.

Comments are enthusiastically welcomed.

GBS: EFF on the Numbers


The Electronic Frontier Foundation has two blog posts that run through the numbers on the settlement in a very clear fashion. As an added bonus, the EFF politely asked for a clearer version of the page which had the tables of the number of claimed books by various categories, and Rust Consulting (by way of Google), politely obliged with a much clearer version.

GBS: Nesson Appeal Sputters Out


The Second Circuit just dismissed the appeal filed by Charles Nesson and his partners from the Open Access Trust. They had tried to intervene in the case, but Judge Chin denied their motion. They responded by appealing to the Second Circuit, but failed to file various forms on time. The Second Circuit issued an order to show cause—which they didn’t respond to. Result: appeal summarily dismissed.

GBS: Fairness Hearing Transcript


We now have a transcript of the fairness hearing available at the Public Index, for those seeking to dig even deeper into the presentations.

GBS: Fairness Hearing Report Part II


Due to length limits in my blogging software, I’ve had to split this post into two parts. Part I covered the arguments of settlement supporters and opponents; this post covers the arguments made by the Department of Justice and the parties, along with a few brief comments of my own.

(Continued . . .)

GBS: Fairness Hearing Report


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.

(Continued . . .)

GBS: Game Day


Tomorrow is the fairness hearing. This should be fun. There should be some outstanding lawyers speaking, a lot of contentious arguments, and some gentle clues as to Judge Chin’s thinking. If you’re at the courthouse too, please say hello.

I’ll be attending (in the overflow room, as I’m not speaking). My students and I will all be taking notes; I hope to post at least some immediate reactions tomorrow evening. But because the court restricts electronic devices, don’t expect live-blogging, tweeting, responses to phone calls, or any such out of me. Oh, and also, NYLS chose tomorrow for a major internal move, so I won’t have access to my office, possibly until next week. Basically, I’ll do what I can to push information out, but it may take a while.

GBS: Beyond Lawyerese


Out of the minor storm of paper filed last week, there are really only two documents that are a pleasure to read. Paul Aiken’s declaration is the only one of the numerous declarations to read as though it was written by the person whose name it bears. (Dan Clancy is charismatic and funny in person, but his declaration is dry as dust; the real Dan Clancy would never put quotation marks around “optical character recognition.”) His animating convictions, enthusiasm for the settlement, and occasional frustration are all evident. It’s surprisingly, and refreshingly, human.

Google’s brief is also a great piece of rhetoric. There are parts that make good sense, and parts that don’t hold up so well once you check what the cited cases actually say, but the whole thing is written with verve, and then some. I regularly lost track of where the plaintiff’s supplemental brief was going with a section and had to flip back to trace the argument; not so with the Google brief. The introduction is a model of how to write an effective summary of a legal argument, and as for the conclusion, I might as well just reproduce it in full (I’ve turned the footnotes into hyperlinks.):

In 47 B.C., Julius Caesar set fire to the ships in the harbor at Alexandria. The fire spread ashore, destroying the more than 700,000 volumes in the Library of Alexandria.

In 1952, Edward Alexander Parsons published the definitive work on the Library of Alexandria, titled The Alexandrian Library, Glory of the Hellenic World: Its Rise, Antiquities, and Destructions. That book has been out of print since the mid-1960s.

Today, Plutarch’s account of the destruction of the Library at Alexandria can be read by any internet user through Google Book Search, either in English or in the original Greek. But Parsons’ book cannot; his work is not available for sale, and those who wish to read it must travel to a major research library. At issue in this case is whether out-of-print books like The Alexandrian Library will be made accessible to readers and profitable to their authors, or whether they will be effectively lost forever.

The ASA cannot claim to create a Library of Alexandria, and no settlement can bring back the works lost to Caesar’s fire. But it is hoped that this compromise between authors, publishers, libraries, and a company willing to spend hundreds of millions of dollars to digitize so much of the printed history of humanity will be another small step toward the vision that the Alexandrian Library represents.

The ASA is fair, reasonable, and adequate. The Court should grant the motion for final settlement approval.

There’s an irony here. Plutarch reports, “[Caesar] was forced to divert that danger by setting fire to his own ships, which, after burning the docks, thence spread on and destroyed the great library.” But this is controversial; other ancient writers’ accounts suggest that the library may have been only partially damaged by Caesar, or not affected at all, and destroyed only later. I checked Lionel Casson’s Libraries in the Ancient World, Johnson and Harris’s History of Libraries in the Western World (inter-library loan gave me the 1976 third edition), and Wikipedia, none of which present Plutarch’s version as fact.

The Alexandrian Library is in agreement, as one can tell from this excerpt posted online, which catalogues the various conflicting ancient authorities. So the “definitive work” on the Library of Alexandria (according to Google) disputes a proposition the brief presents as settled historical fact. Depending on your perspective, this either undermines or underlines Google’s point.

GBS: Yep, That’s Chutzpah


There are many acute points, and many deliberately obtuse ones, in the plaintiffs’ supplemental brief. But this one, from page 153, is easily the most brazen:

Lastly, the ASA may incentivize interested groups and Congress to enact legislation that could enable other distributors to obtain rights to use unclaimed works. A number of objectors have argued that such legislation, rather than the ASA, is the best way to address the licensing of such works. Unfortunately, previous efforts to enact orphan works legislation have been unsuccessful, and future efforts seem, at present, no more likely to succeed. With the ASA as a model, and the desire to allow other distributors to compete with Google as an added incentive, the prospects for enactment of appropriate legislation may well be improved by approval of the ASA.

GBS: Wolson v. Reed-Elsevier


Here’s a recent copyright case of note: Wolson v. Reed-Elsevier, No. 09 Civ. 4040 (S.D.N.Y. Jan 29, 2010). It’s of interest because it’s a copyright case, that touches on class actions, indeed on the Literary Works litigation now before the Supreme Court, and because it was decided by Judge Chin.

GBS: An Inauspicious Continuation


Plaintiff’s supplemental brief, at 21:

Therefore, because there is no deadline to claim one’s Books through the Settlement and given the Registry’s mission to locate Rightsholders, it is reasonable to expect that the numbers of claimed out-­of-­print Books will grow exponentially.

No, it is not reasonable to expect exponential growth, not if you know what “exponential” means. The number of claimed books may grow substantially, dramatically, or suddenly. But it is unlikely to grow exponentially.

GBS: A Gripe


I’m mildly annoyed that the parties’ briefs in support of the settlement generally cite the objections only as, e.g. “D.I. 264” — that is, by reference to their docket index number. That makes it harder to tell which objection they’re addressing, which in turn makes it harder to tell whether the response is on point.

I can understand why they did it. For one thing, it has the rhetorical effect of belittling the objections, which (implicitly) aren’t important enough to be worth identifying. But it also has the effect of obscuring the issues at stake, making it harder for the judge, the other lawyers in the case, and the public to follow the arguments. Regrettable.

Tyler Moore and Ben Edelman on Typosquatting


Good measurements, clearly presented. 80% of typosquatted sites are supported by pay-per-click advertising, but a relatively small number of players (perhaps as few as five) appear to be behind the majority of them.

GBS: An Inauspicious Beginning


Footnote 1, Part 1, Page 1 of the plaintiffs’ Memorandum of Law in support of final approval reads:

Except as set forth in this memorandum, capitalized terms have the meaning ascribed to them in the Amended Settlement Agreement.

Ascribed” is the wrong word for the job.

GBS: Ursula Le Guin NewsHour Interview


Ursula Le Guin was recently interviewed for the PBS NewsHour Art Beat blog. Audio and a transcript are available on the PBS web site. One substantial segment of the interview concerned the Google Books settlement:

JEFFREY BROWN: You recently spoke out pretty strongly on the whole situation with Google, Google’s attempt to scan and sell millions of books and you submitted a position to the judge who is looking at this.

URSULA LE GUIN: What I was objecting to was what’s called the Google Book settlement, yeah.

JEFFREY BROWN: Right. But explain, what is it that you worry about here?

URSULA LE GUIN: Oh goodness, it’s so complicated, Jeff. It’s such a huge — the settlement itself is about the length of the Holy Bible, and very few people can even read through it. I think to put it very crudely my main major objection is that a small group of writers led by the Authors Guild made a class action suit and then settled it, and then they are being allowed to speak for all writers — academic writers, journalists, freelancers like me — and the settlement they made is not satisfactory to most of us.

JEFFREY BROWN: Because?

URSULA LE GUIN: Because it will allow Google to — actually as the head of our copyright office remarked — to an end run around copyright. It also allows a corporation to kind of re-write the rules such as copyright, which ought to be controlled firmly by the government. You know how Disney got to the government and got them to re-write copyright law to the extent of extending it to 70 years so that Disney could keep Mickey Mouse? That’s what we’ve got to kind of protect, is that corporations should not be allowed to write the rules that protects both writers and readers.

JEFFREY BROWN: Of course it’s interesting, I mean, the dream here of course is an old one, right, of giving more people access to information, creating this global library, right?

URSULA LE GUIN: That’s right. And that library, that is my dream too. It should be a public library. It should be the Library of Congress extended through this immense field of digitalizing sort of everything we have, and it’s not just information. It’s art, too. What I write is not information. I write fiction. It doesn’t inform anybody of anything. But it has its value. And it gets forgotten in all this talk about information should be free, you know.

JEFFREY BROWN: Why do you think it has split the world of writers?

URSULA LE GUIN: I don’t know that it has. I’m afraid an awful lot of writers have not really informed themselves. You know, we tend to be sort of busy doing our writing and sort of feeling that if we belong to a group like Authors Guild or something, that they’ll look after it and sort of see to it that our rights aren’t infringed to the point where we can’t make a living any longer.

JEFFREY BROWN: All right, well we’ll follow that. I think the next step, I think it’s next week is the judge has the next hearing on this.

URSULA LE GUIN: The 18th.

GBS: Reaching Out to the Bloggers


The list of blogs to receive the press release about the settlement website is exhibit 46 (pages 333–34) to the Kinsella declaration. Yes, the Laboratorium is on there (and yes, I did receive my emails as described in the declaration). I was amused to see that one of the other blogs to receive notice was joegratz.net. Joe is one of Google’s lawyers in the case; my guess is that he was already aware of the settlement website.

GBS: Some Information About the Translations


From the declaration of Belinda Bulger about the supplemental notice program:

Class Counsel advised me that, for additional assurance as to the quality of certain translations of the Supplemental Notice, they sent the Dutch, French, German, and Swedish translations to attorneys who are native speakers of those languages for their further review and they had the Japanese translation reviewed by an experienced translator, a native speaker of Japanese, who had substantial familiarity with the Settlement and its terms. These reviewers produced further edits to the five translations, which KM then incorporated into the translations as part of the process of preparing final versions of the translations of the Supplemental Notice. …

Class Counsel advised me that, on December 21, they received an email calling attention to translation errors in the French-language version of the Supplemental Notice that had been sent out in the body of emails in HTML format. Class Counsel immediately brought the matter to the attention of Rust and KM. Rust confirmed to me that the French-language version of the Supplemental Notice that had been sent via email on December 14, 2009 was not the final, approved version of the French translation of the Supplemental Notice, which, as of December 14, 2009, had been made available on the Settlement Website. Rust immediately contacted TransPerfect for a review. Rust determined that the edits to five of the translations of the Supplemental Notice (Dutch, French, German, Japanese, and Swedish) that had been provided by the attorneys (and by the Japanese translator) engaged by Class Counsel had not all been included in the versions sent through email. TransPerfect, under Rust’s direction, reviewed all translations of the email versions of the Supplemental Notice. TransPerfect determined that, due largely to a software malfunction, many of the email versions of the translations of the Supplemental Notice varied (to varying degrees) from the final, approved translations of the Supplemental Notice that appeared on the Settlement Website.

To ensure that the recipients of emails that had contained translations of the final versions of the Supplemental Notice were made aware of the final, approved versions of the translations that were available on the Settlement Website, Rust advised me that Rust sent the following email, in the appropriate language, to each of those recipients: “The Supplemental Notice for the Google Books Settlement that we sent you on December 14 contained some translation errors. Please find the correct translation at: [link to the language-specific PDF of the final Supplemental Notice on the Settlement Website].” For emails in languages with the highest number of recipients, Rust and/or KM also had the translations of the text of such email reviewed by independent native speakers of the languages, including attorneys. Rust advised me that Rust sent these emails, with the text as so reviewed and edited, on December 28, 2009.

GBS: Some Notice Statistics


From the declaration of Katherine Kinsella about the notice program:

The Notice program resulted in:

a) Distribution of more than 1.3 million pieces of direct mail; b)677 appearances of the Summary Notice in worldwide media; c)At least 5,683 print and online articles globally about the Settlement; d)At least 1,208,752 unique visitors (1,463,869 total visits) to the Settlement Website.

The Notice Program included a variety of online advertisements. To provide Class Members with millions of opportunities to view ads alerting them to the Settlement, KM used banner advertisements and text advertisements. These advertisements appeared 587 million times on websites worldwide.

KM purchased these sponsored search results on Google in 35 of the Notice Languages. (Malay is the only Notice Language in which sponsored keywords were not purchased, because they were not available through Google.) Yahoo was used in English and Japanese throughout the world and Yandex was used in Russia.

… However, despite repeated efforts, Baidu rejected KM’s request to purchase sponsored keyword search ads.

The report with both CARMA and comScore data, detailing media coverage of the Settlement through May 31, 2009, is attached as Exhibit 49. As detailed in that exhibit, earned media appearances related to the Settlement generated at least 636 million gross impressions worldwide.

… Of the hundreds of notice programs that I have been involved with or am aware of, the notice program of the Settlement is the most complex, global, and multi-faceted.

GBS: Some Statistics


These come from the declaration of Tiffaney Allen, describing Rust Consulting’s work on administering the settlement, at pages 5–6:

As of February 8, Rust Consulting receiver 6,818 timely requests for exclusion. In addition, Rust Consulting has received 13 requests for exclusion after the January 28, 2010 opt-out deadline. …

As of February 8, 2010, Rust Consulting has received 1,846 completed hard copy claim forms, and 42,604 claim forms were completed using the Settlement Website. The total number of Books claimed by those 44,450 claimants is 1,125,339. The total number of Inserts claimed by those 44,450 claimants is 21,829. In addition, Rust Consulting has received 485 lists including approximately 8,164 Books and approximately 5,536 Inserts from authors or publishers requesting assistance through the simplified claiming process.

Of the 1,107,620 Books claimed online, 619,531 are classified as out-of-print (not Commercially Available) and 488,089 are classified as in-print (Commercially Available).

Of the 44,450 claiming Rightsholders, 40,058 are members of the Author Sub-Class and 4,392 are members of the Publisher Sub-Class. Agents that may be claiming on behalf of multiple authors are, to be conservative, calculated as a single author.

Of the 44,450 claiming Rightsholders, 23,036 were located in the U.S., 3,167 in the UK, 4,035 in Canada, and 2,249 in Australia. this totals 32,487 claiming rightsholders from these four countries, or 73% of the total number of claiming Rightsholders. Location of Rightsholders was determined by the individual’s web browser environment.

GBS: A Little School Pride


I was gratified to read the following in Paul Aiken’s declaration in support of the settlement, in paragraph 56, when he lists the members of the Authors Guild’s team:

Michael Gross, a 1999 graduate of New York Law School and staff attorney for the Guild since 1999, who has assisted hundreds of lawyers in contractual and copyright matters and speaks regularly to writers groups on book contract issues, provided additional legal support for the negotiating team.

GBS: A Discovery About Discovery


From the declaration of Paul Aiken in support of the motion for approval, paragraph 32:

… Under some older contracts, according to counsel for the Author Sub-Class (who had access to tens of thousands of book contracts through discovery that were not available to staff of the Authors Guild), authors had, however, granted “storage and retrieval” rights to publishers. Counsel also advised me from their review of such contracts that in the late 1980s many of the major publishing houses’ form contracts began to include electronic rights grants to the publisher.

GBS: Some Highlights of Dan Clancy’s Declaration


From the declaration of Daniel Clancy in support of the motion for approval:

Paragraph 5:

To date, Google has Digitized over twelve million books, and intends to continue Digitizing books in the future.

Paragraph 6:

To date, Library-Registry Agreements have been signed by the University of Wisconsin, Stanford University, and the University of Virginia.

Paragraph 8:

It would be technologically burdensome to implement the exclusion of Inserts on a piecemeal basis, rather than from all Display Uses, because it would require the maintenance and tracking of numerous versions of a given Book, one for each Display Use, each containing only those Inserts which may be used in that Display Use. Such piecemeal exclusion would also be frustrating to users.

Paragraphs 9–11:

Google has received metadata from 48 libraries.

Google pays approximately $2.5 million per year to license metadata from 21 commercial databases of information about books.

Google has gathered 3.27 billion records about Books, and analyzed them to identify more than 174 million unique works.

Paragraph 22:

Because of the unstructured nature of most data available on the web, it would have been infeasible to attempt to use the Google search engine to generate a list of class members to whom notice was to be sent, and such an attempt would be error-prone. Similarly, because of “optical character recognition” errors and the unstructured nature of the data, it would have been infeasible and error-prone to attempt to derive class member contact information from Google’s scans of individual books.

GBS: The Registry-to-Be


From the declaration of Jeffrey Cunard in support of the settlement, pp. 7–8:

The charter documents for the Registry, which will be a not-for-profit corporation, are being drafted in consultation with counsel having expertise in tax and issues arising under not-for-profit corporation law. These documents, which will be fully consistent with the ASA, are not yet final, but will be submitted to the Court as soon as they are.

GBS: Am I Right to Worry About This Provision?


Clause 16 of the Proposed Final Judgment:

At any time after the date of this Final Judgment and Order of Dismissal but prior to the Effective Date, Plaintiffs and Google may, by written agreement, amend the Amended Settlement Agreement without notice to or approval of the Court, but only if such amendment is not materially inconsistent with this Order and does not impair the rights of the Amended Settlement Class under the Amended Settlement Agreement. After the Effective Date, the Registry and Google may, by written agreement, amend the Amended Settlement Agreement without notice to or approval of the Court, but only if such amendment does not impair the rights of the Amended Settlement Class under the Amended Settlement Agreement.

This passage appears capable of great mischief. The Registry and Google could agree, for example, to eliminate the Public Access Service.

GBS: A Little on the Fee Motion


I am systematically digging through last week’s filings. I’ll start by giving a quick rundown of the motion for attorneys fees. Perhaps unsurprisingly, given how big this case has become, the counsel for the author sub-class are asking for the full $30 million in fees and reimbursement of their out-of-pocket costs.

As set out in their memorandum of law in support, you can get to that number in one of two ways. First, there’s the “lodestar” method: calculate how much you’d have billed if you’d been working for a normal, paying client, then multiply by some figure to reflect the uncertain chances of recovery. Under that method, they’ve invested a little over $10 million in billable time, so they’re asking for a multiplier a little under 3. Here are some salient details about how the $10 million figure was calculated:

Boni declaration in support of the motion for attorneys fees, ex. C: Michael Boni and Joanne Zack bill at $675 an hour. Boni has spent 4997.5 hours on the case; Zack has spent 3326 hours. Boni & Zack LLC as a whole has spent 9778.75 hours.

Id., ex. D: Boni & Zack has incurred $151,700.37 in out-of-pocket expenses on the case. That includes $86,511.16 on expert witnesses and consultants, and $44,742.66 on travel-related expenses.

Id., ex. F (declaration of Sanford Dumain), p.5: Milberg LLP put 4,519 hours into the case, spread out among more attorneys. One partner, two associates, and five contract attorneys worked more than a hundred hours on the case. NYU professor (and head of Milberg’s appellate practice) Arthur Miller logged 18 hours and claims a rate of $995 an hour.

Id., ex. G (declaration of Robert LaRocca), p. 6: While at Kohn, Swift & Graf, P.C., Boni worked another 1342.70 hours on the case, out of a total of 4718.80 hours of firm time.

The other method of calculation is to look at benefits to class members. Out of the $109.5 million Google is to pay (not counting the separate attorney fees for the publishers’ counsel), $30 million is about 27 percent.

GBS: UK Government Looking at GBS-Like Models


Regular commenter Gillian Spraggs attended a meeting with representatives of the UK Intellectual Property Office last month, and discussed the Google Books settlement and related issues with them. Here is her summary of the meeting:

  • From the point of view of IPO and the government, the GBS model of digital publishing is one that is ‘in principle worth looking at’.
  • ‘Improving access to digital content’ is perceived as immensely important, and there is held to be a ‘logjam’ in delivering this, which the mechanism of the GBS dislodges. (I challenged the existence of such a logjam in the meeting.)
  • There is a perception that licensing works for use is currently ‘too complicated’.
  • On the whole idea of the GBS and the way it is set up to operate: when they looked into it they found ‘nothing so offensive about it that we would unhesitatingly condemn it’.

We were told that our group was far more hostile towards and critical of the GBS than anyone else they had talked to.

She continues, after a discussion of the various UK authors and publishers groups and their positions on these issues, by summarizing some of the proposals of the Digital Economy Bill:

Provisions included in the Digital Economy Bill (Clause 42) would pave the way for this. They provide for the government to bring in regulations under a statutory instrument that would authorize ‘a licensing body’ – such as the ALCS – ‘to grant copyright licences … in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts’. In other words, this would be a default opt-in arrangement, just like the Google Book Settlement. It would be possible to opt out only ‘in respect of rights excluded by notice given by the copyright owner in accordance with the regulations’ (whatever those may be). The reference to ‘rights’ implies that, just as with the Google Book Settlement, an author who wished to stay in control of his or her copyrights would have to give details of every single publication he or she had ever licensed. (The same would apply, if course, to literary estates.)

These provisions would permit the Secretary of State for Business, Innovation and Skills (or a successor) to authorize the ALCS (or a similar company) to mass-license all British publications to Google (or another entity), except in those cases where the authors or other copyright-owners had gone to some trouble to prevent this.

GBS: Fairness Hearing Updates


A few changes to the lineup for Thursday’s fairness hearing:

Comments and Limits


I have ‘unpublished’ two recent comments that attempted to reveal the real-life identity of a commenter who preferred to use a pseudonym here. One of the two was also over the line in making a crude and apparently sexual remark about the commenter. This blog is meant to be an inclusive, welcoming space for discussion; I will not tolerate anything that might make other participants feel unsafe.

The fault here is partly my own, for not making my expectations for comments clear. I will fix that by posting a comments policy soon, which will explain what kinds of behavior are welcome and what kinds are off-limits. Until then, all comments will be held for moderation.

Class Action Woman


My favorite line from Thursday’s filings, so far, comes from page 23 of the brief filed by the plaintiffs’ attorneys in support of their motion for attorneys fees. The Writers Representative objection had said (page 7):

Boni & Zack is not a copyright firm. They appear to be class action men, out for a fee award and little more, in my estimation.

Here’s the reply:

First, Boni & Zack would be honored to be characterized as “class action men” were it not for the fact that name partner Joanne Zack is a woman.

GBS: Motion for Final Approval Posted


The plaintiffs’ motion for final approval of the settlement and its many supporting documents are now posted on the Public Index (scroll down to the end of the page). There’s a an awful lot of information here: hundreds of pages of legal briefing in reply to the objections, extensive reports on the notice program and opt-outs from the settlement program administrators, and much, much more.

Please Take Notice


In about ten minutes, I’m going to hop on a plane to go speak at a conference in Brussels on the Google Books settlement. I will be reachable only sporadically until Monday.

I hope to be back online tomorrow to write about today’s forthcoming filing from the parties asking Judge Chin to approve the settlement, but we will see. My prediction: if nothing else, it will reverse some of the gloom-and-doom mood in the media coverage of the settlement. It’s been (almost) nothing but criticism for the last few weeks; this is the parties’ best opportunity to deliver a full-on press in favor of the settlement, and I’m expecting a filing at a high level of legal and rhetorical skill. They’ve had a long time to prepare.

Please don’t call me in the next few days about anything non-urgent. Three words: international roaming charges.

Buzzes Are Often Followed by Stings


I don’t have the time to blog in detail about Google Buzz, but the privacy decisions they made are truly awful. As Siva points out this kind of public-by-default decision can get people flogged—or worse.

GBS: E-Book Terms Trending Toward Publishers


Motoko Rich, Publishers Win a Bout in E-Book Price Fight, N.Y. Times (Feb. 8, 2010):

Google has been talking about entering the direct e-book market, through a program it calls Google Editions, for nearly a year. But in early discussions with publishers, Google had proposed giving them a 63 percent cut of the suggested retail price, and allowing consumers to print copies of the digital books and cut and paste segments. After Apple unveiled the iPad last month, publishers indicated that Apple would give them 70 percent of the consumer price, which publishers would set.

According to several publishers who have been talking to Google, the book companies had balked at what they saw as Google’s less generous terms, and basically viewed printing and cut-and-paste as deal breakers.

Now that both Apple and Amazon have agreed to terms more to the book companies’ liking, several publishers said that their conversations with Google have taken on a more flexible tone.

These publishers, who requested anonymity because their discussions with Google are confidential, said Google had relaxed its plans to allow customers to print or cut and paste. …

In early negotiations, the 63 percent Google had been offering publishers was based on a wholesale model, but executives briefed on the discussions said that Google was now open to talking about an agency model and was also prepared to discuss paying publishers 70 percent of each sale.

That just raises further questions!

If Google Editions goes to a 70/30 revenue split, will the settlement go there, too?

If Google Editions turns off print and copy/paste, will the settlement turn it off too? (But see § 4.2(a) (Consumer Purchase” will enable purchasers to view, copy/paste and print pages of a Book” (emphasis added)); § 4.1(d))

Copyright in Legal Materials: Worst Case Scenario


This, ladies and gentlemen, is why the law is not a proper subject of copyright. I’ve written about this topic before, but I had no idea that the situation could be as bad as it is in Liberia, where one man claims to have a copyright on the only codified copy of the country’s laws. He’s holding out for hundreds of thousands in dollars in what can only be described as “ransom,” leaving courts and the government guessing at what the law actually is.

I’m curious, though, how a country can have a rule of law strong enough to enforce his copyright and yet weak enough to let this happen. I suspect there is more in the way of high-level complicity and corruption than the story lets on. Copyright is the symptom, not the problem.

Public Citizen Objects to the Beacon Settlement


Good for them; the settlement stinks to high heaven. It would have provided no monetary relief for a class with a strong statutory damages claim. I considered writing a letter to the court, but I had too much else on my plate already (including another class-settlement that’s been taking up a lot of my attention). I’m glad to know that PubCit more than picked up the slack.

The brief itself is available online.

Things Mark Zuckerberg Has Not Said


I’m doing research for a paper on privacy on social network sites. (Yes, another one. But short this time.) Along the way, one of the things I’ve done is read closely the comments in which Mark Zuckerberg supposedly declared privacy dead. He made the remarks in a videotaped interview with TechCrunch’s Michael Arrington, which was widely reported at the time. Here are some representative samples:

  • Marshall Kirkpatrick, at ReadWriteWeb, uses the headline “Facebook’s Zuckerberg Says The Age of Privacy is Over.”
  • Terrence O’Brien, at Switched, uses the headline, “Facebook’s Mark Zuckerberg Claims Privacy Is Dead.”
  • Craig Kanalley, at the Huffington Post, writes, “If [Zuckerberg] could go back in time and build Facebook again, he would make profile data public by default.”
  • Bobbie Johnson, in the Guardian, writes, “The rise of social networking online means that people no longer have an expectation of privacy, according to [Zuckerberg]. … [He] said that privacy was no longer a ‘social norm.’”
  • Steven Holloman, at Associated Content, writes, “‘Make peace with it: no-one cares about privacy anymore!’ - With this line, Facebook founder Mark Zuckerberg justified security holes in this online social network.”

In reality, Zuckerberg said none of these things. Watch the video for yourself. At least the ReadWriteWeb transcript is mostly accurate:

When I got started in my dorm room at Harvard, the question a lot of people asked was ‘why would I want to put any information on the Internet at all? Why would I want to have a website?’

And then in the last 5 or 6 years, blogging has taken off in a huge way and all these different services that have people sharing all this information. People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people. That social norm is just something that has evolved over time.

We view it as our role in the system to constantly be innovating and be updating what our system is to reflect what the current social norms are.

A lot of companies would be trapped by the conventions and their legacies of what they’ve built, doing a privacy change - doing a privacy change for 350 million users is not the kind of thing that a lot of companies would do. But we viewed that as a really important thing, to always keep a beginner’s mind and what would we do if we were starting the company now and we decided that these would be the social norms now and we just went for it.

Zuckerberg never says that privacy is “over” or “dead.” While he says that if he were founding Facebook today, he would use the new privacy settings, he doesn’t talk about going back to 2004 and retroactively using the new settings. He says that social norms have changed, not that privacy isn’t a social norm at all. And he most decidedly never says anything about people not caring about privacy or about needing to “make peace” with this fact.

Facebook’s record on privacy is decidedly mixed. And Zuckerberg’s comments do conflate exogenous shifts in privacy norms with shifts catalyzed by Facebook itself. But beyond that, this man does not deserve the grief the Internets have been giving him over things he didn’t say. I sympathize with the Facebook representative trying to explain that, “His remarks were mischaracterised.” It’s a cliche of the PR trade, but in this case it happens to be true.

Kudos to Sebastian Anthony at Download Squad for calling BS on the reporting at the time.

GBS: David Drummond Channels Sergey Brin


David Drummond has an editorial in the Guardian, Google: We Will Bring Books Back to Life. It bears a strong resemblance to Sergey Brin’s A Library to Last Forever from the New York Times in October. How strong?

Drummond:

Google’s founders recognised the problem back when Google was just a start-up in the late 1990s. They proposed a project to digitise all the world’s books, but at that time the idea seemed so far-fetched they couldn’t persuade anyone in the company to work on it. It took a further five years before Google Books was born. Today, users can access information contained in more than 10m books.

Brin:

… Larry Page, the co-founder of Google, first proposed that we digitize all books a decade ago, when we were a fledgling startup. At the time, it was viewed as so ambitious and challenging a project that we were unable to attract anyone to work on it. But five years later, in 2004, Google Books (then called Google Print) was born, allowing users to search hundreds of thousands of books. Today, they number over 10 million and counting.

Drummond:

Yet doubts remain, and there is particular concern among authors that they are in danger of handing control of their work to Google. Let me address that concern and dispel some of the myths.

Brin:

There has been some debate about the settlement, and many groups have offered their opinions, both for and against. I would like to take this opportunity to dispel some myths about the agreement and to share why I am proud of this undertaking.

Drummond:

The settlement aims to make access to millions of books available either for a fee or for free, supported by advertisements, with the majority of the revenue flowing back to the rights holders.

Brin:

This agreement aims to make millions of out-of-print but in-copyright books available either for a fee or for free with ad support, with the majority of the revenue flowing back to the rights holders, be they authors or publishers.

Drummond:

The reality is that they can at any time set pricing and access rights for their works or withdraw them from Google Books altogether.

Brin:

The reality is that rights holders can at any time set pricing and access rights for their works or withdraw them from Google Books altogether.

Drummond:

Some have questioned the impact of the agreement on competition, suggesting it will limit consumer choice and hand Google a monopoly. In reality, nothing in this agreement precludes any other organisation from pursuing its own digitisation efforts.

Brin:

Others have questioned the impact of the agreement on competition, or asserted that it would limit consumer choice with respect to out-of-print books. In reality, nothing in this agreement precludes any other company or organization from pursuing their own similar effort.

Drummond:

We wish there were a hundred such services. But despite a number of important projects to date – and Google has helped fund some of them – none has been on the same scale simply because no one else has yet chosen to invest the time and resources required. But if there are to be a hundred services in future, we have to start with one.

Brin:

I wish there were a hundred services with which I could easily look at such a book; it would have saved me a lot of time, and it would have spared Google a tremendous amount of effort. But despite a number of important digitization efforts to date (Google has even helped fund others, including some by the Library of Congress), none have been at a comparable scale, simply because no one else has chosen to invest the requisite resources. At least one such service will have to exist if there are ever to be one hundred.

Drummond:

If we successful, others will follow. And they will have an easier path.

Brin:

If Google Books is successful, others will follow. And they will have an easier path …

GBS: Randy Picker: Moving Forward in Google Book Search


He writes:

It is time to find out. There are a staggering number of objections to the ASA. These range from antitrust concerns—more on those in a second—to privacy issues, to how foreign authors and works are treated, and on and on. But we have reached a point in the process where we need to get some sense from Judge Chin on how he sees the scope of the class-action power in copyright. Whether he sees a broad power or a narrow power will determine the path forward.

I think that is exactly right. Yes, anything could happen in the next few weeks, but I agree that the next move is Judge Chin’s. Until now, he has been very hands-off in his case management. He granted the four-month delay, but since then has been trying to keep the case procedurally on track while deferring all substantive rulings. But now, the issues have been framed and sharpened.

Whatever Judge Chin does after the hearing will take heavy lifting. Whether he approves the settlement, rejects it, or pushes for modifications, he’s going to have to commit some of his authority. Any of these routes will require him to reject some positions as legally wrong; particularly if he wants to see the settlement modified, he’ll need to get in the driver’s seat.

That leaves what DOJ labels Google’s de facto exclusivity. I have found that troubling all along as well, but it isn’t clear that there is an internal antitrust remedy for this. The new DOJ statement of interest cites no case law or statutes as authority for its power to resolve this issue. Instead, this seems to be a concern addressed to Judge Chin now should he approve some version of the settlement agreement in which Google gets exclusive authority vis-à-vis the orphan works. As I have argued before, this would be a decision by a governmental actor to grant a single franchise to the orphan works. This takes us back to the scope of the class-action power: if Judge Chin concludes that he has the power to grant a license to the orphan works to Google, does he also have the power to expand that license, perhaps, say, by allowing the unclaimed works fiduciary to license those works on behalf of the orphan works holders?

In a narrow sense, the answer is clearly “no.” Judge Chin can’t do anything on his own. The only way he could expand the license is to reject the settlement, indicate he’d approve it if the parties expanded the license, and wait for them to return with a redrafted settlement. In a larger sense, this issue is only on the table if, pace the Department of Justice, Judge Chin concludes that the class action issues are not a bar to the settlement.

Randy is picking up on something that’s increasingly characterizing my own view of the settlement: it’s very hard to analyze the settlement in terms only of civil procedure, antitrust, or copyright. Looking at it through any one of these lenses seems to miss something critical. There are real issues in these areas, but they aren’t quite debates about the settlement’s essence. Only at the intersection of these three areas does the settlement really come into focus.

GBS: Fairness Hearing Order of Battle


Judge Chin has issued his order governing procedures for the conduct of the fairness hearing on February 18.

26 individuals and groups have asked to speak at the hearing. They will be allotted five minutes each. (“The Court urges parties with overlapping concerns to coordinate their remarks to avoid duplication. The Court will also, of course, review all written submissions.”) They will be followed by the United States, and then by the parties.

The hearing will be in Courtroom 23B, where seating will be reserved for those speaking. “Overflow seating will be available in Courtroom 11A, where video of the proceeding will be provided.”

GBS: To RIAA or Not to RIAA


Short post from the Authors Guild reacting to the Justice Department’s filing:

As you may be reading in today’s paper, the Justice Department in its filing regarding our settlement with Google continues to see legal problems with the settlement, focusing on class action law but also continuing to raise some antitrust concerns. We disagree with the Justice Department’s reading of the law. At the same time, it’s good to see the Department recognizes the settlement’s many benefits. In our view, it’s best for everyone that out-of-print library books be made available through reasonable, market-based means to readers, students and scholars. Without a settlement, that won’t happen. It’s also best that authors have direct control of the scans that Google has made, with the power to compel Google to hide, display or remove those scans. Without a settlement, authors have no such control. Google’s scanning and use of authors’ books would continue until the lawsuit was finally resolved. …

We also could’ve won. That would’ve been sweet. But here’s the thing: copyright victories tend to be Pyrrhic in the digital age. Our settlement negotiations went on with full knowledge of what happened to the music industry. The RIAA (the Recording Industry Association of America) won victory after victory, defeating Napster and Grokster with ground-breaking legal rulings. The RIAA also went after countless individuals, chasing down infringement wherever they could track it down.

It didn’t work. The infringement just moved elsewhere, in unpredictable ways. Nothing seems to drive innovation among copyright pirates as much as a defeat in the courts. That innovation didn’t truly abate until Apple came along with its iPod/iTunes model, making music easily and legally available at a reasonable price. By then, the music industry was devastated.

GBS: Department of Justice Press Release


WASHINGTON - The Department of Justice today advised the U.S. District Court for the Southern District of New York that despite the substantial progress reflected in the proposed amended settlement agreement in The Authors Guild Inc. et al. v. Google Inc., class certification, copyright and antitrust issues remain. The department also said that the United States remains committed to working with the parties on issues concerning the scope and content of the settlement. …

GBS: The United States Files


The United States has filed a new Statement of Interest. The tone is balanced, but the conclusion is clear: the Department of Justice thinks the settlement is beyond the court’s authority and still problematic on antitrust grounds. It’s a careful, detailed brief, that raises fundamental objections to the settlement. These issues will not be resolved with quick patches, even if the parties were in the mood to revise and resubmit a second time.

The battle has been truly joined.

A Copyright Law Tip


The opposite of “substantially similar” is not “substantially different.”

Russ Cox: Regular Expression Matching Can Be Simple And Fast


This short paper by Russ Cox exemplifies everything I believe about theory. It takes a tool that programmers use all the time—regular expressions, which are the basis of search and replace—and shows how the standard implementation of them can fail badly at many tasks. It then walks through some basic computer science theory to derive a different implementation of regular expressions, one that performs well all the time.

This is a theoretical pearl: the mathematics are simple, well-understood, and provably correct. But it’s also profoundly practical: once you write out the theory carefully, the program follows as a matter of course. The formalism is the program. Sadly, people who ought to know better still get this one wrong.

I write law review articles and legal documents now, rather than programs and computer science papers. But the lesson is the same. Good theory is useful.

For more information, here’s Russ’s overview page, and here’s his follow-up with equally elegant implementation details. I had the pleasure of working with him years ago; he’s also an all-round nice guy and the only Free Electron I know.

GBS: Representatives Gonzalez and Green Ask DOJ to Protect Minority Publishers


Their letter to Attorney General Holder is online. In the words of the press release:

“We don’t want this settlement process to go forward if it will not protect the work of small and minority publishers,” Congressman Green said. “We are asking Attorney General Holder to evaluate the revised settlement that was filed last November, and ensure that the rights of all publishers are represented and protected during the upcoming Fairness Hearing.”

Given that the deadline for the Department of Justice to file its comments on the revised settlement is February 4, and this letter was dated February 1, it’s hard for me to imagine Holder suddenly sitting bolt upright and shouting, “Of course! They’re right! I must scrutinize this settlement closely! To the Holder-mobile!” In fact, given the size and complexity of the settlement and the extensive intra-agency coordination presumably involved in such a big issue, it’s hard to imagine that even the posturing of “Some Congressmen are skeptical about the settlement” could make much of a difference. The filing hasn’t arrived yet, but the drafting must be in its very late stages. We all wait with bated breath.

Where We Remain


A very effective indie game, with simple play mechanics and a remarkable sense of ominous terror.

It occurs to me that the 8-bit aesthetic means something very different now than it did when 8-bit was state-of-the-art. Today, it’s s deliberate deign choice, one that embraces constraint in the name of artistic experimentation. Not coincidentally, it also brings the project back within the scope of the realistic for a single inspired auteur—a bit like a student film.

GBS: Stanford Signs Fully Participating Library Agreement


From the Stanford release:

Stanford University has affirmed its support for the recently amended Google Book Search settlement agreement, which is now before a federal court, by expanding its earlier agreement with Google Inc. to digitize its library materials.

Stanford’s expanded agreement, which establishes it as a Fully Participating Library under the terms of the amended settlement agreement, is a milestone in Stanford’s commitment to the program and to the provision of public access to millions of its books.

University Librarian Michael A. Keller said, “We are highly supportive of the amended settlement, which offers an enormous public good, making the full text of millions of books available to the American public.”

Keller added that another effect of the settlement is to respect the rights and prerogatives of authors and publishers at the same time as it increases public access. “The settlement creates a working partnership among authors, publishers, libraries and Google that will usher in a revolutionary change in access to books on library shelves, even beyond the incredibly powerful vision that Google Books first developed. It’s no longer just about finding books of potential interest; it makes them vastly more readily readable. The agreement also compensates authors and publishers for the use of works that, by virtue of being out of print, would not have earned the rightsholders any income – a novel and, for most authors, a most welcome innovation.”

Phil Agre is Okay


The statement reads:

Philip Agre was located by LA County Sheriff’s Department on January 16, 2010 and is in good health and is self sufficient.

GBS: Publishers Weekly on the State of the Settlement


Substantial feature article on the current state of play. If you’re just tuning in now, this article is a good place to start. It may just reflect the news cycle, which was dominated this past week by objectors unveiling their filings, but the general tone is not particularly optimistic on the settlement:

On February 18, the Google Settlement is scheduled to have its long-awaited final fairness hearing in a Manhattan courtroom, although, court-watchers agree, it is unlikely that this next chapter, will be the last. Twice postponed in 2009, the hearing in Judge Denny Chin’s Manhattan courtroom will come after months of legal drama, and a September swoon New York Mets fans might appreciate: thought to be a lock in the spring, by mid-September, 2009, the deal was off the table, amid protests from foreign governments, authors, harsh criticism from U.S. Register of Copyrights Marybeth Peters, and a Department of Justice brief that urged the deal’s rejection.

As the January 28 deadline to object or to opt out passed last week, it’s now clear how steep a climb the amended Google Settlement faces. Opposition has swelled, and if there was any question before, there is little question now: the deal is in jeopardy.

UPDATE: Added the actual link, which I somehow neglected to post the first time around.