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))

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.

The brief itself is available online.

• 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.

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 …

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.

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.”

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.

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. …

The battle has been truly joined.

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.

“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.

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.

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.”