What's At Stake in Google Book Case: Access to History

The issues in the convoluted Google Book case are so complex and involve so many parties -- publishers, libraries, states, foreign governments, academics, writers, readers, and the U.S. Justice Department -- that federal judge Denny Chin is essentially being asked to decide nothing less than our collective future access to our collective pre-digital literary history.
As is the case with many class-action lawsuits, there is a terrible burden put on members of the public and press just to cut through all the legal mumbo-jumbo to get at what is at stake here, but let me try.

First, for a much more detailed, in-depth coverage of last Thursday's hearing about this revised proposed settlement, please check out the excellent report posted by Professor James Grimmelmann and his students from New York Law School, which I have liberally quoted from (as noted) in what follows.

It is worth noting that while most of those testifying in the hearing oppose the settlement to create what Google envisions as a global "library to last forever," many of their arguments were repetitive or seem unlikely to prove material, so I'll focus on the main points they raised, as well as Google's rebuttals.

The opponents basically charge that the $125 million settlement would violate copyright laws, create privacy concerns, and establish a virtual monopoly for Google over the emerging market for eBooks, albeit with many other objections.

Much of their concern appears to be about damages not yet done, i.e., the future implications, if the settlement is approved as is by the judge.

"In forward-looking businesses, Google wants complete immunity," argued William Cavanaugh, the deputy assistant secretary for the antitrust division in the Justice Department.

Some of the controversy swirls around the so-called "orphan works" -- out-of-print books whose copyright holders are unknown or cannot be located.

As Grimmelmann reported:

• Google and its critics have sparred over how many books fall into that category, with estimates from a few million to tens of millions of titles. Google has said it would try to find rights-holders of these works, but critics say the deal is designed to give Google exclusive rights to these works and protect it from lawsuits from rights holders.

Pro-Google testimony later rejected the orphan works concerns as "a myth; it's a political football."

Throughout the hearing, according to eyewitnesses, Chin appeared to be looking for pragmatic ways to settle the case.

One huge stumbling block is that the current settlement is based on an "op-out" approach so common on the web, whereby rights-holders could decide not to participate in what Google and litigants have proposed as a giant rights registry that would compensate authors for the future use of the digital versions of their out-of-print work.

Opponents suggested an "opt-in" alternative, which seemed to resonate with the judge. Hadrian Katz of the Internet Archive, made the case this way: "A single condition would realize all the benefits of the settlement and resolve virtually all the problems. Approve it as is, but on an opt-in basis."

"If you did an opt-in you would eliminate a lot of objections," Chin noted at one point.

Google's lawyer, however, argued against this, stating "Opt-out is essential to the settlement, because there's no other way to create this market. The current market is small. Google has scanned two million public-domain books, of which hundreds of thousands have never been accessed."

Regarding the privacy concerns raised by opponents, who fear Google's targeted-data approach over people's reading habits could allow "Big Brother" snooping by government agencies in the future, EEF lawyer Cindy Cohn argued, according to the Grimmelmann team:

• Google should be required to require a warrant or court order before turning over information to law enforcement...(and that) Google should mitigate the privacy risks by keeping the data for 30 days or less. They already delete health data within two weeks.

In what was a mildly surprising development, the Justice Department's Cavanaugh didn't say much about the antitrust issues that have captured headlines for months in this case.

He did mention in passing that his departments investigation was "ongoing," including in the area of "search." (This struck observers as a potentially significant expansion in the known parameters of what the DoJ is looking into in the case.)

Google's attorney, Daralyn Durie, dismissed most of objectors as launching "speculative" arguments about potential future harms.

As for the specific antitrust concerns, she said, according to Grimmelmann:

• The settlement is about consumer welfare. Without the settlement, there's no way to access these works. There's no danger of monopoly by Google; its current market share is 0 percent. The Open Book Alliance is the one trying to preclude competition by keeping Google out. The settlement, however, is nonexclusive; it doesn't erect barriers, and even makes things easier for competitors.

Google's counsel also rejected all of the various foreign copyright concerns, noting that this case involves U.S. copyright interests, which are the only areas Judge Chin has any jurisdiction over.

After the hearing, Google issued this statement: "We appreciate the concerns voiced, but we believe the settlement strikes the right balance and should not be destroyed to satisfy the particular interests of the objectors."

Meanwhile, Judge Chin warned those packing his New York courtroom and an adjoining overflow seating chamber that he would not issue any ruling in the case right away.

After reading through the voluminous testimony presented in the case, which involves a revised negotiated settlement of a class-action suit brought by certain publishers and authors against Google for scanning millions of out-of-print books, I expect we will be waiting on the judge's written opinion for a while -- probably until much later this spring.

Following is an extensive library of BNET Media coverage of various aspects of this issue:
DOJ Files Against Google Book Settlement: "A Bridge Too Far" "The U.S. Department of Justice (DOJ) has once again strongly intervened in opposition to what is now the amended proposed class action settlement between the Authors Guild and the Association of American Publishers, et al., and Google..."

Sergey Brin Defends Google's "Library to Last Forever"
"A recent headline in The New York Times captured the dynamic of the Google Book Search controversy perfectly: In E-Books, It's an Army vs. Google--"

Today is the Deadline for a Revised Settlement in Google Books Case "In the end, the judge will have to weigh the concerns over who controls which rights, worries over anti-trust and privacy, etc., against the prospect that this "Library to Last Forever," might otherwise never get built at all..."

The Google Book Case Settlement is Dead "The proposed settlement of the class-action lawsuit against Google Book Search is officially dead tonight. Just days after..."

DoJ Intervenes Against Google Book Search "The U.S. Department of Justice (DoJ) tonight has informed the federal judge overseeing a proposed class-action settlement of the Google Book Search case that it officially opposes the settlement..."

Google Acquisition Will Help Correct Errors in Scanned Works "One of the issues swirling around the Google Book Search (GBS) case is the relatively high rate of errors in the images of the millions of old books Google has scanned..."

The Bottom Line of Google Book Search "Yesterday was the filing deadline set by Denny Chin, the federal judge overseeing the Google Book Search case, so over the last few weeks the court has received letters, briefs, and other documents from hundreds of parties from around the world..."

Google's Chief Engineer Explains the Book Search Initiative "Dr. Daniel J. Clancy, PhD, is the Engineering Director for the Google Book Search Project, and he agreed to share with Bnet some of the details about how the company is approaching the problems inherent in a project of such magnitude, including the probability of errors in the scanning process--"

Google Offers Free Downloads of a Million Books
The Google Book Search Case -- for Dummies

Librarians Ask DoJ to Intervene in Google Books Case "Three prominent library groups have asked the Antitrust Division of the U.S. Department of Justice (DoJ) to "advise the court" supervising the proposed settlement of a class action suit against Google Books by several organizations purporting to represent authors--"

The New Book: An Interactive, Networked Gathering Place Writing in Humanities magazine, a bimonthly review published by the National Endowment for the Humanities (NEH), Steve Moyer has taken a detailed look at the future of books and of the act of reading itself.

Amazon's Plan to Insert Ads into e-Books "Leading up to the big holiday weekend, Amazon quietly applied for patents to insert ads into e-Books, including old and out-of-print publications, as well as in newly printed versions available via the curious phrase "on-demand printing--"

E-Books Reach a "Tipping Point," Triggering Explosive Growth "My email in-box is humming this week with people sharing anecdotes about the growth in popularity of e-books--"

The Kindle is for Old Folks "Do you know which are the top four magazines read on the Kindle, according to Amazon?"

Time to Slow Down that Google Book Search Deal "As the proposed settlement by Google of a class-action lawsuit by authors over its Google Book Search rushes toward an impending judicial resolution, it's become apparent that it's time to pull the emergency brake on this one--"

The Sweet Spot: How Print and Mobile Will Converge "If you've been struggling to imagine how newspapers, magazines and books will be able to survive the historic transformation to online digital media, one answer may be that you may have gotten stuck at the desktop and/or laptop stage of thinking--"

Eucalyptus eBook Reader: A Glimpse of the Future? "Over the past week, both out in New York and here in San Francisco, I've had dozens of conversations with people -- mainly in the publishing industry -- comparing the user experience of reading an eBook compared to the good, old-fashioned type we've all grown to love these past 554 years or so--"

Momentum Shifts Against Google in Old Books Controversy "A number of new developments in the proposed settlement of a class action suit between Google and some authors over who will control the publishing rights of millions of out-of-print books indicate that the growing opposition to the terms of that settlement are gaining momentum--"

Amazon Buys iPhone eBook App Stanza "It's a sign of our times when a small company announces on its blog that it's been acquired by a huge company, and then a New York Times blogger pushes that news out to the large audience always hungry for tech news online, especially when the way I find out about all of this is via a virtual community I recently joined that circulates info via a listserv on intellectual property issues--"

Amazon, the Kindle, and the Future of All Books New York City "--you can't turn around in this town without bumping into yet another laid off editor--

Writers, Sign Up for your Check from Google Books! "Whatever published authors may think about Google's ambitious plan to digitize more or less every book ever published, the company's recent settlement of a class-action lawsuit with publishers and authors creates a potential new revenue stream, albeit a small one, for us that I believe is worth pursuing--"

Quillp: "Where Books Find Friends" "Another intriguing experiment about how to exploit the web's search, networking, and publishing technologies to help authors, readers and publishers all find each other is on the scene--"

Digital Books Selling Like Hotcakes "Right around the time this piece posts, attendees at a panel discussion entitled "The Rise of eBooks" at O'Reilly's "Tools of Change" conference will gather in a sixth floor Manhattan venue to discuss the future--"

Will Recession Help E-Books Emerge?
Smashwords CEO Evaluates e-Book Market Regarding today's news that Amazon sold an estimated 500,000 Kindles last year, I asked Mark Coker, founder/CEO of Smashwords, the digital self-publishing company, for his reaction--

Analyst: Half a Million Kindles Sold in '08 "For reasons that have never been entirely clear, Amazon.com has not been at all forthcoming about its Kindle e-book reader. One aspect no doubt has to do with the company's choice to employ a proprietary technology in an age when open-source products are proliferating--"

Smashwords Takes eBooks Mobile "Memo to book publishers: Beware of the rejected novelist! That may prove to be the moral of the story of Smashwords, a digital self-publishing platform started by entrepreneur Mark Coker after--"

The Future of Books "As the age of print approaches its final years, its most treasured form -- the book -- stands much like Custer at the Battle of the Little Bighorn, surrounded, doomed, and all too soon to be slaughtered unmercifully--"