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Legally Speaking: The Dead Souls of the Google Booksearch Settlement


Guest blogger Pamela Samuelson is the Richard M. Sherman Distinguished
Professor of Law and Information at the University of California, Berkeley, as well as a Director of the Berkeley Center for Law & Technology and an advisor to the Samuelson High Technology Law & Public Policy Clinic at Boalt Hall. She has written and spoken extensively about the challenges that new information technologies pose for traditional legal regimes, especially for intellectual property law.

This piece will appear in the July 2009 issue of Communications of the ACM. Readers may also be interested in the slides from Pam’s recent presentation, “Reflections on the Google Book Search Settlement.”

Google has scanned the texts of more than seven million books from major university research libraries for its Book Search initiative and processed the digitized copies to index their contents. Google allows users to download the entirety of these books if they are in the public domain (about 1 million of them are), but at this point makes available only “snippets” of relevant texts when the books are still in copyright unless the copyright owner has agreed to allow more to be displayed.

In the fall of 2005, the Authors Guild, which then had about 8000 members, and five publishers sued Google for copyright infringement. Google argued that its scanning, indexing, and snippet-providing was a fair and non-infringing use because it promoted wider public access to books and because Google would take out of the Book Search corpus any digitized books whose rights holders objected to their inclusion. Many copyright professionals expected the Authors Guild v. Google case to be the most important fair use case of the 21st century.

This column argues that the proposed settlement of this
lawsuit is a privately negotiated compulsory license primarily designed to
monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the “dead souls” to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.

Orphan Works

An estimated 70 per cent of the books in the Book Search
repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them.

A broad consensus exists about the desirability of making
orphan works more widely available. Yet, without a safe harbor against possible infringement lawsuits, digitization projects pose significant copyright risks. Congress is considering legislation to lessen the risks of using orphan works, but it has yet to pass.

The proposed Book Search settlement agreement will solve the
orphan works problem for books—at least for Google. Under this agreement, which must be approved by a federal court judge to become final, Google would get, among other things, a license to display up to 20 per cent of the contents of in-copyright
out-of-print books, to run ads alongside these displays, and to sell access to the
full texts of these books to institutional subscribers and to individual
purchasers.

The Book Rights Registry

Approval of this settlement would establish a new collecting society, the Book Rights Registry (BRR), initially funded by Google with $34.5 million. The BRR will be responsible for allocating $45 million in settlement funds that Google is providing to compensate copyright owners for past uses of their books.

More important is Google’s commitment to pay the BRR 63 per
cent of the revenues it makes from Book Search that are subject to sharing
provisions. The revenue streams will come from ads appearing next to displays of in-copyright books in response to user queries and from individual purchases of and institutional subscriptions to some or all of the books in the corpus. Google and the BRR may also develop new business models over time that will be subject to similar sharing.

One of the main jobs of the BRR will be to distribute the settlement revenues. The money will go, less BRR’s costs, to authors and publishers who have registered their copyright claims with BRR. Although the settlement agreement extends only to books published prior to January 5, 2009, BRR is expected to attract authors and publishers of later-published books to participate in the revenue sharing arrangement that Google has negotiated with BRR.


Class Action Settlement

By now, readers may be a bit puzzled. How can Google be getting a license to make millions of in-copyright books available through Book Search just by
settling a lawsuit brought by a small fraction of authors and publishers?

U.S. law allows the filing of “class action” lawsuits whose
named plaintiffs claim they represent a class of persons who have suffered the
same kind of harm from the defendant’s wrongful conduct as long as there are
common issues of fact and law that make it desirable to adjudicate the claims
in one lawsuit instead of many.   

The Authors Guild and three of its members sued Google, claiming to represent a class of similarly situated authors whose books Google was scanning and whose copyrights Google was violating. By bringing a class action, the Authors Guild put considerable financial pressure on Google because the winner of a class action lawsuit is entitled to compensation that equals all of the monies owed to the class, which may be exponentially higher than awards to individual
plaintiffs.

In the absence of the proposed settlement, Google would almost certainly have vigorously fought against certification of the class in the Authors Guild case. After all, the guild has only a few thousand members and most of them do not write the kinds of scholarly works that are typically found in major university research libraries. Many scholars would want their books to be scanned by the Book Search project so they would be more accessible to potential readers.

The publisher lawsuit did not start out as a class action, perhaps in part because McGraw-Hill, et al., recognized how difficult it would be for them to prove they adequately represented a class of all book publishers whose books Google had scanned.

However, the settlement agreement that Google has negotiated
with the Authors Guild and the Association of American Publishers would, if
approved, be settled as a class action on behalf of all book authors and publishers, with the Guild and AAP claiming to represent their entire respective classes. By acceding to the certification of these classes through
this settlement, Google will get a license from all authors and publishers of books
covered by the agreement (which is to say nearly every in-copyright book ever
published in the U.S.) so that it can commercialize them though Book Search.

Google’s New Monopoly

The proposed settlement agreement would give Google a
monopoly on the largest digital library of books in the world. It and BRR, which will also be a monopoly, will have considerable freedom to set prices and terms and conditions for Book Search’s commercial services. BRR is unlikely to complain that the price is too high, the digital rights management technology is too restrictive, or the terms are too onerous.

Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions. BRR will get 63 per cent of these revenues which it will pay out to authors and publishers registered with it, even as to books in which they hold no rights. (Some unclaimed orphan book funds may go to charities that promote literacy.) No author whose books are in the corpus can get paid by the BRR unless he/she has registered with it.

Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Dead Souls

The Book Search settlement brings to mind Nikolai Gogol’s story, Dead Souls. Chichikov, its main character, travels around the Russian countryside to buy “dead souls” so that he can become a wealthy and influential man. In
the early 19th century, you see, Russian landowners had to pay annual
taxes on the number of serfs (counted as “souls”) they owned as of the last census.

Chichikov offered to buy “dead souls” (i.e., serfs who had died since the last census) from the landowners. His plan was to acquire enough of these souls so that he could take out a large loan secured by his portfolio, and thereby to become a
wealthy man.

In Gogol’s story, Chichikov’s scheme falls apart. Rumors fly that the souls he owns are all dead and he flees the town in disgrace.

However, Google’s “dead souls” scheme may pay off handsomely, as the settlement would, in effect, give Google the exclusive right to
commercially exploit millions of orphan books.

Representativeness?

As galling as it is to realize that the BRR and its registered authors and publishers will derive income from millions of books they didn’t write or publish, it is even more galling that copyright maximalists will almost certain dominate the BRR governing board.

(The Authors Guild president, for example, recently complained about the “read aloud” feature of Kindle, denoting it a “swindle,” and a copyright infringement. The AAP is supporting legislation to forbid the National Institutes of Health from promoting “open access” policies for articles written under NIH grants. And of course, the Authors Guild and AAP characterized Google as a thief for scanning books from research libraries.)

If asked, the authors of orphan books in major research libraries might well prefer for their books to be available under Creative Commons licenses or put in the public domain so that fellow researchers could have greater access to them. The BRR will have an institutional bias against encouraging this or considering what terms of access most authors of books in the corpus would want.

In reviewing the settlement, the judge who is supposed to consider whether the settlement is “fair” to the classes on whose behalf the lawsuits were brought. He may assume the settlement is fair because money will flow to authors and publishers. But importantly absent from the courtroom will be the orphan book authors who might have qualms about the Authors Guild and AAP as their representatives.

Conclusion

In the short run, the Google Book Search settlement will unquestionably bring about greater access to books collected by major research libraries over the years. But it is very worrisome that this agreement, which was negotiated in secret by Google and a few lawyers working for the Authors Guild and AAP (who will, by the way, get up to $45.5 million in fees for their work on the settlement—more than all of the authors combined!), will create two complementary monopolies with exclusive rights over a research corpus of this magnitude. Monopolies are prone to engage in many abuses.

The Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a major restructuring of the book industry’s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved as is.

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  • Adam Hodgkin

    This is a very helpful piece of advocacy (also the PowerPoint). Thank you.

    Under the terms of the draft settlement the orphan books will be digitally republished/distributed by Google without their photographs and maps (and with some other elements missing), and this seems to be doing some violence to the legacy of these authors. Is this a relevant factor to consider when the judge asks himself whether the interests of these copyright holders is being fairly settled?

  • Pam Samuelson

    The settlement does not cover copyrights in photographs or other pictorial or graphic works. It only covers copyrights in books.

    You are probably right that at least some authors would prefer to have photos and maps included in Book Search, but the authors of the books may not be the authors of the photos or maps, and unless the photos and maps are clearly in the public domain, it might be risky for Google to include them in the Book Search version of the books.

    The judge may ask the Authors Guild, as representative of the class of authors, what they think about this. But I would not expect it to be a big issue in the settlement hearing.

  • bowerbird

    thank you for analyzing and publicizing this appalling rights-grab.

    it would have added strength if you would have also mentioned
    just how much google intends to charge for the books that it sells,
    sometimes up to $20 or $30, meaning that _one_ such transaction
    will cover the cost that google incurred in scanning the book.

    this is highway robbery on a grand scale, not just of dead authors,
    but of the entire public, and not just now, but also into the future.
    it might not be as astonishing as the $700 billion ripoff which
    the financial industry just pulled off, but the theft of our _culture_
    seems — on many levels — to be an equally serious violation.

    and the worst part is the so-called “leaders” — from both the
    tech and library worlds — saying “this is the best we can get”.

    um, no… this isn’t even close to “the best we can hope for”.
    it’s not even close to being not even close. it’s one big ripoff.

    -bowerbird

    p.s. and yes, tim o’reilly, you’re one of those so-called “leaders”.

  • Pam Samuelson

    It is a common practice for publishers to charge for printing books that are in the public domain. So the fact that Google might want to charge money for some books in Book Search does not seem objectionable to me.

    Google says that the prices may be as low as $1.99 and that it will price them to promote access.

    I am going to leave aside the comment about the financial crisis, as it is a different kind of problem.

    But I do agree that there is a social interest in access to books, to knowledge, to culture at stake in the Book Search settlement, and I hope that I have helped to further awareness of this.

  • http://archiv.twoday.net/stories/5625587/ Dr Klaus Graf

    I have argued in German
    http://archiv.twoday.net/stories/5625587/
    that scholarly authors should establish an own collecting society or lobby which can negotiate with Google that their works would be available worldwide “Open Access” (including CC license if author whishes that).

  • Mark Hatch

    Great analysis. Best and most balanced I’ve seen on the topic. Clearly the equivalent of music’s ASCAP is needed. Why a judge would agree to give away a monopoly on part of it to the infringing party is hard to fathom. A friend of the court brief is needed… if not congressional action.

  • Barbie

    A very interesting and enlightening piece.

    The Google Books Search Project seems, on the surface, of great value and therein admirable. It begins to turn sleazy when forced to deal with existing copyright law.

    Obviously, a great deal of copyright law has become burdensome. Action — even drastic action — seems required.

    In this case, I believe action could potentially and beneficially come from two sources. For instance, it is conceivable that the government could, in some manner, nationalize the cultural resources of orphaned books and replace the Authors Guild in negotiations. It is also conceivable that Google, given its resources and position, might choose to test copyright law more forcefully rather than to meekly accept its restrictions (as soon as Google is given the financial incentives to do so).

    Are either of these likely? No, of course not. But it is useful to keep in mind that government — and Google — posings about social values in a digital age fall far short of what actually happens — or what actually could happen given the will and courage to act decisively.

    ***

    Also, is there really a need for the captcha process — or is that a default inappropriate here?

  • davidwr

    The judge should divide the class:
    1) Active publishers
    2) Defunct publishers, including pre-bankruptcy estates of publishers that have reorganized under bankruptcy
    3) Living authors who are still producing new works or making substantial income off of completed works
    4) Living authors who are retired and no longer making substantial income from existing works but are still able to sign contracts
    5) Living authors who are mentally incompetent to agree to a contract and their personal representatives or guardians
    6) Heirs of dead authors

    For #s 1, 3, and 4 he should survey representative members of these classes to see if the proposed settlement meets their needs.

    For #2, 5, and 6 he should reject the settlement on the grounds that the named plaintiffs cannot represent these classes, and that these groups may not even be classes for the purpose of a class action lawsuit

  • Alan

    Public interest, end of story. The only reason we have copyright is to favor the dissemination of knowledge. Now we have an efficient and practically free way of distributing content, and we should thank Google for making all these works available. I cannot believe we are even letting a small group of old and lazy authors deny the public access to knowledge.

  • ocb

    Great reflection, thanks a lot.

  • Tim

    @Alan: it’s unclear to me whether you mean the Author’s Guild us denying the public access, or those complaining about and wanting to stop this deal are denying access?

  • Tim

    I’m not clear on all the details of class action lawsuits, but is it possible for an entity (heirs of an author of orphaned works, publishing company, or whatever) to file with the court challenging the establishment of the class in this case? I should think that it’s relatively easy to prove that the 8000 members of the Guild are not representative of the hundreds of thousands of authors. Since they do not constitute a majority, how can they be declared representative of the class of authors?

  • Pam Samuelson

    Tim and David raise questions about class certification issues. It is quite common for questions to be raised about whether the named plaintiffs (e.g., the Authors Guild and 3 of its members) are fair representatives of the class of persons on whose behalf they filed the lawsuit.

    Often the questions will be raised by the defendants, sometimes by the court, but it is also possible for persons who are within the proposed class that the named plaintiffs are trying to get certified to object to that class. They might argue, for instance, that the facts on which the plaintiff relies are different that the facts that pertain to them. In the AG v. G case, for instance, some authors could object that they would like for their books to be scanned.

    But this kind of objection would, as I understand it, not necessarily result in rejecting the class certification. The judge might say “if you want your books scanned, fine; opt out of the class,” but regard the class as still viable. It would take a more substantial objection that A, B, and C saying “I want to be scanned” to change the game.

    The number of named plaintiffs by comparison with the size of the class may not be as significant as you think. As long as the judge regards the named plaintiffs as adequately representing interests of members of the class, it doesn’t matter whether there are 3 of them, 15, or 8000. The question is whether the class is well formed.

    David raises questions about the possibility of dividing up the class into several different classes. There will already, if the settlement is approved, be two classes, one of authors (for which AG claims to be the class representative) and one of publishers (for which AAP claims to be the class representative). The judge could decide, if there was proper evidence before him, that there should be five classes instead of two, but I don’t think the judge has the power to reframe the classes. His role is to decide whether or not to approve the settlement that has been negotiated by the parties. Yes or no are his choices.

  • http://alevin.com Adina Levin

    Thank you for the explanation about why the settlement is a bad thing. Can you explain what avenues there are, if any, to prevent this from going through or prevent the harm from it? Who has the power to stop this? What can we readers do?

  • Pam Samuelson

    James Grimmelman has prepared a helpful issues brief about the settlement that goes into more details than I have done. You might want to look at it at http://www.acsblog.org/ip-and-tech-law-prof-grimmelmann-examines-proposed-google-book-services-settlement.html

    The judge is the person who must decide whether to approve the settlement or not. There is a procedure by which those who wish to object or intervene in the settlement can do so by May 5, but the hearing is not until mid-June.

    If you are a member of the class (that is, an author whose book is in the Book Search repository), you could let the judge know that you object and why.

    If you are not a member of the class, you can urge organizations with which you are affiliated and which would be able to offer useful insights (say, a scholarly society) to submit comments.

    Or you could urge consumer protection or antitrust authorities to raise questions about the settlement.

    Even if the settlement is approved, there will be opportunities for governmental oversight if the problems I have suggested may occur do so. But it would be desirable for this case to settle on better terms for the public. That won’t happen just because we might wish it would.

  • Bob Steel

    Come on, this is incredibly one sided and inaccurate. Google knows that the vast majority of these books will never incur a sale. Internally, Google sees this project as a loss-leader to generate more search traffic. It’s certainly not a profitable endeavor for Google. You are ridiculous in attacking Google when it is doing the world a favor by scanning these books for free and making them available. Amazon et al can surely setup their own scanning teams, but no one is as idealistic as Google and willing to look that far down the road, sacrificing short term profit.

  • judith trotsky

    The real danger of the Google book settlement is the end run it makes around copyright law.

    Instead of requiring permission from copyright holders before publishing work, online or anywhere else, the settlement requires authors to opt out.

    If they don’t, if they haven’t heard of the settlement, if they don’t know its provisions, if they don’t understand them, too bad: their property goes into the pool. It’s not theirs alone anymore.

    This tactic is also in play elsewhere: the settlement made by periodical authors with publishers also requires opt out. That settlement has been challenged by a group of objectors, me among them.

    But who is taking on Google? And who is powerful enough to win against them? The IP subcommittees in Congress have been notified. Action is nil.

  • Pam Samuelson

    This responds to Bob Steel’s comments.

    First, just because a book is out of print doesn’t mean it’s valueless. There are probably lots of books written in specialty fields whose audience will be enlarged by digital access either by Google’s Book Search or others who might scan books. I would be willing, for example, to buy a lot of out of print books about copyright and intellectual property law.

    Second, even if no one buys some obscure book on 14th century Venetian ships from Book Search, that doesn’t mean that Google and the BRR won’t get revenues from the book. Google will charge for ads displayed along side the results of this or other books that might respond to a query on Venetian shipping. Plus there are institutional subscriptions from which to earn such revenues. Research library patrons are particularly likely to find the corpus of “orphan books” a desirable resource.

    Third, I agree with you that in the short run, there is every reason to cheer Google’s Book Search initiative. What I worry about is the longer term. My main point is that Amazon, should it decide to start scanning like Google did, would not be able to get a license to the overwhelming majority of books that are in copyright but out of print because it is only through the legal jujitsu of the class action settlement that it can get a license to the orphan books. Amazon would face the same prospect Google did of getting sued without the equal likelihood of being able to settle on comparable terms.

  • Pam Samuelson

    This responds to Judith. The Authors Guild sued Google because it claimed that Google’s scanning of books infringed copyright, objecting to the opt-out system that Google had adopted for the first iteration of Book Search. (If you don’t want your book in, tell us so and we’ll take it out.)

    The AG and AAP have, however, apparently decided that opt-out isn’t so bad after all, for they have agreed to settle their lawsuit with a prominent opt-out feature, and if you think that’s a bad deal for authors or publishers, then perhaps you should file an objection to the settlement on that ground.

    Most of us probably think that it’s a good thing that more books will be more accessible if the settlement is approved, and there is the benefit for authors and publishers in the settlement’s form of Book Search that authors and publishers who register with BRR can get compensation for uses of their books. They can also take the works out of the corpus, or make deals with Google through its partner program if they prefer other terms.

    Copyright is a means to the end of promoting progress of science, that is, public access to knowledge and its ongoing evolution.

  • alsma

    Is yes/no really the judge’s only option? Can he, in effect, get the parties to renegotiate a somewhat modified agreement with the changes Grimmelman, ARL, and others have suggested?

  • Kent Fitch

    Yes, this settlement will “will unquestionably bring about greater access to books collected by major research libraries”, but perhaps not on the terms AAP and AG expect. Google are undoubtably aware that once digitised, books will circulate freely on the internet, and no DRM or legal measures can change that. But Google’s costs and risk is low compared to those of the rights holders, but their share of revenue is disproportionately high, as discussed in detail here http://ltmem.blogspot.com/2009/02/google-book-settlement-doesnt-address.html

  • bowerbird

    pamela said:
    > It is a common practice for publishers to charge
    > for printing books that are in the public domain.

    but they have to compete with others who have
    free and equal access to the very same material,
    whereas google will have a monopoly on the orphans.
    so i’m quite sure you understand the difference there.

    > So the fact that Google might want to charge money
    > for some books in Book Search does not seem
    > objectionable to me.

    well, it wouldn’t seem “objectionable” to me either,
    if the prices they were charging were within reason.

    but the prices are sky-high, and we have no recourse.

    > Google says that the prices may be as low as $1.99
    > and that it will price them to promote access.

    ok, fair enough, i picked the highest prices in the range,
    and you picked the lowest. (to make google look good?)

    but that range shows that google will charge over $10
    for half of the books. $10 or more, for books that are
    out-of-print, meaning they lived their commercial life,
    to the point they were _abandoned_ by their “owners”.

    and now — simply by virtue of having scanned them –
    we’re now letting google profit from print-on-demand.

    on a book that might cost just a couple bucks to print,
    we’re letting ‘em charge over $10 for print-on-demand?

    that’s highway robbery.

    google will make more than the book’s original publisher!

    plus they’ll be the only search engine to have the books,
    strengthening their stranglehold on the search market.

    thus they’ll be the only entity that can place ads against
    this content. (which, by the way, is something that they
    once said they would not do, _another_ broken promise.)

    > I am going to leave aside the comment about
    > the financial crisis, as it is a different kind of problem.

    it’s the _same_ problem — a violation of the public trust…

    > But I do agree that there is a social interest in
    > access to books, to knowledge, to culture at stake
    > in the Book Search settlement, and I hope that I have
    > helped to further awareness of this.

    well, as i said, your analysis is one of the best i’ve seen…

    but even you seem not to recognize the sinister nature of
    the power-play google has enacted with this “settlement”.

    these boys are very smart, and they’ve now turned greedy.

    they know the value of the assets that they are now holding,
    and they have some excellent knowledge about how they’re
    going to monetize those assets, and they can see that they
    are going to make a _ton_ of money, if they can just swing
    the legal right to capitalize on the assets, so they’re doing
    what it takes to make our heads swim and a judge say yes.

    this didn’t need to be nearly so complicated and convoluted.
    they could’ve made it as simple as their famous home-page.
    but no. they made it dense for a reason, to trip us up with
    the fine print. we don’t know how right now. but _we_will_.

    just you watch. we’re gonna wake up 5 years down the line,
    see how they’re making a ton of money of us at our expense,
    turn around, and let out a long whistle of marvel at the depth
    of the cleverness they used to snow all of us. just you watch.

    -bowerbird

  • spinoza

    When considering remuneration and the business of book publishing/selling, the current laws surrounding the industry are profoundly unfair both to authors and publishers. The culprit is not Google, but libraries, which exist solely to circumvent the selling of books to private individuals.

    Think of the effort involved in writing and publishing a book, which in the marketplace is a commercial product, only to have an organization (libraries) develop a means to disseminate the book free of charge to as many individuals as possible.

    Is this any different from BitTorrent or any of the other file sharing services? The library profits in building out its raison d’etre, and individuals profit by not having to buy the book themselves, all at the expense of authors and publishers. If copyright was devised to protect the intellectual property of authors, then libraries are the worst thief one could think of, since its circumventing is protected by law (“fair use”, a euphemism if there ever was one). Publishers are helpless to do anything about it because libraries have wrapped themselves around an untouchable (“warm and fuzzy”) cloak of social value.

    Laws do not exist in an ideal world of rigorous rules and logic, but rather play out within the conditions of complex social behavior. If we were dealing with pure legal logic, libraries would long ago be branded as the brazen thieves they really are. Yet, there is a strong tendency to apply just such idealized legal logic to Google’s actions, through its attempt to create a useful new service to society. We do not regard libraries as brazen thieves precisely because we accept them as offering a service to society, much to the detriment to authors’ and publishers’ financial bottom line.

    In a sense, as a commercial enterprise, Google is making a contribution to redress the balance in favor of authors and publishers, to aid in their gaining some additional monetary gain from their intellectual property. This is one of the reasons why I think publishers have recognized the value in working with Google. It can be hoped that the courts will recognize the benefits of Google’s actions as well, in creating a valuable new service to society (just as libraries did over the course of the last century), and thus adapt laws to foster this development.

    Is there anyone who considers the current situation with orphan books even remotely acceptable? We should be extremely grateful that a company like Google has taken the initiative to address the situation, to greatly improve both access and the commercial value of a vast treasure trove of material.

  • spinoza

    “The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world…
    Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions.”

    I’m still reading through the Settlement document, but from what I know I would strongly question the truth of this interpretation, indeed it appears very misleading.

    Google has not gained control over the copyright of these books, but it does claim ownership, understandably, over the database of scanned books *it* has created. Any other company–amazon, Microsoft, a university library consortium, et al–can create its own scanned database of orphan books, and likewise make them available in a way it deems appropriate. Of course Google has a “monopoly” on its own digital library, it created it! This is no different than claiming that GM having a monopoly over Chevrolets or Pontiacs. At the same time Google does not, however, control access over the original books or their content. There is a crucial difference here, and the attention-mongering cries of monopoly! monopoly! do not help in understanding these differences.

    If the Settlement agreement has wording to imply that would prohibit other companies from doing this, then yes, the agreement would seem to be on a very questionable footing.

    On the other hand, if my initial understanding is correct, then these claims that Google has created a “monopoly” over these books is just plain headline-grabbing hyperbole.

  • spinoza

    “Copyright is a means to the end of promoting progress of science, that is, public access to knowledge and its ongoing evolution.”

    Copyright was devised in early 18th century Britain to protect intellectual property, and in so doing to foster the exchange of intellectual products in a society based on commerce. By protecting intellectual property, and thereby providing an incentive to create intellectual products, a foundation is created for the ongoing development of new knowledge through creative activity, and thus, as a by-product, science is promoted.

    There is an ambivalent dilemma, a tension, in balancing a framework for fostering creative works while at the same time protecting it under law as a possession. The creator of a work wants to maximize his or her material gain for one’s efforts, while at the same time to disseminate it as broadly as possible. Laws should work to create as healthy a tension as possible in protecting the potential for material gain while at the same time promoting wide dissemination.

    There is no gain in not allowing truly orphan works from becoming as accessible as possible. In the past, however, having the burden of identifying whether a work is truly an orphan or not has been a prohibitive barrier to greater access. Attempts at improving the situation have been fruitless over the past couple of decades, and we can only hope Google is successful in creating a viable approach at making them more accessible.

  • Barbie

    “By protecting intellectual property, and thereby providing an incentive to create intellectual products…”

    Unjustified claim from which all manner of bs flows.

    Copyright law functions quite differently.

    Is information circumscribed by “intellectual property”? No.

    Is “intellectual property” protected by copyright law? No. In fact, non-owners of “intellectual property” are punished — different thing.

    Does copyright law provide an incentive to create “intellectual property”? No. The Big Lie.

    Copyright law provides an incentive to own “intellectual property.” Ownership of “intellectual property” is then quite different from production of information.

    If you want to talk about property, talk about property. Np. But leave information and science and progress out of it plz.

  • Jerome M. Garchik

    Prof.Samuelson

    You and Jim Grimmelmann are to be commended for taking this deeply complex and hotly contested situation seriously and publicly.

    Your effort to reply to all posted comments is truly heroic.

    I think your readers need to know that when the US Supreme Court first tackled the issues of e-publishing seven years ago, Justice Ginsburg suggested the industry parties involved try to settle these issues privately, and having done so I do not think Google, the Publishers and the Authors Guild should be so strongly criticzed for trying to take that advice from the nation’s highest judicial authority.

    I also think that the Registry modeled on ASCAP and BAMI is a very good solution created by the settlement. I know its mission and power are yet to be carefully defined: I have proposed myself as an idependent author side director, because I think I have the legal skills (35 years, Harvard Law,cum laude,etc.) to contribute to solving the problems raised by you and others, once the Registry gets going.

    I know many authors who support the Settlement and will or have filed claim forms, including one of your posted comments authors. And these are not just for the claims money, but more because of the world wide search access Google Books promises for their long out of print books. And I understand that the authors/publishers share of royaltes is more than composers/musicians now get from iTunes.

    As expected for months, it is clear that the court on June llth will have before it a broad and seriously considered array of public comments,
    interventions and amicus offerings, as much as congress would get from any public hearings.

    I am independent of the case parties and any industry participants or competitors.

    On balance, while not perfect, I think the settlement should be confirmed on June llth.

    .Jerome M. Garchik, SF Attorney

  • Jerome M. Garchik

    Prof.Samuelson

    You and Jim Grimmelmann are to be commended for taking this deeply complex and hotly contested situation seriously and publicly.

    Your effort to reply to all posted comments is truly heroic.

    I think your readers need to know that when the US Supreme Court first tackled the issues of e-publishing seven years ago, Justice Ginsburg suggested the industry parties involved try to settle these issues privately, and having done so I do not think Google, the Publishers and the Authors Guild should be so strongly criticzed for trying to take that advice from the nation’s highest judicial authority.

    I also think that the Registry modeled on ASCAP and BAMI is a very good solution created by the settlement. I know its mission and power are yet to be carefully defined: I have proposed myself as an idependent author side director, because I think I have the legal skills (35 years, Harvard Law,cum laude,etc.) to contribute to solving the problems raised by you and others, once the Registry gets going.

    I know many authors who support the Settlement and will or have filed claim forms, including one of your posted comments authors. And these are not just for the claims money, but more because of the world wide search access Google Books promises for their long out of print books. And I understand that the authors/publishers share of royaltes is more than composers/musicians now get from iTunes.

    As expected for months, it is clear that the court on June llth will have before it a broad and seriously considered array of public comments,
    interventions and amicus offerings, as much as congress would get from any public hearings.

    I am independent of the case parties and any industry participants or competitors.

    On balance, while not perfect, I think the settlement should be confirmed on June llth.

    .Jerome M. Garchik, SF Attorney

  • Pam Samuelson

    This post responds to Kent Fitch: I read the blog posting for which you provided a link, and think it was very insightful. The cost of printing physical books and of the infrastructure for getting the books into the marketplace are very high by comparison with Google’s costs of scanning and making the same content available online, so it will more easily be able to recoup its modest investment than print publishers can do. I agree with that.

    The settlement envisions that individual purchasers will only be able to get access to in-copyright books “in the cloud.” Purchasers cannot download the books, and so your assumption that all of the books in the GBS corpus will flow through the network unimpeded by DRM is questionable to me. The same will be true for subscriptions. You imply that clever students will hack the system and take the books out, but the anticircumvention laws will give Google a basis on which to challenge this kind of activity.

  • spinoza

    @Barbie:

    This is taken from Wikipedia on the the Statute of Anne (1710):

    “… copyright was first created with the intention that authors might have some control over the printing of their work and to receive some financial recompense, so that this would encourage them to write more books and thus to aid the flow of ideas and learning.”

  • http://alevin.com Adina Levin

    This post has a clear description of the problems with the current settlement. Have you (or others) written descriptions of desirable alternatives. What modifications to the settlement would mitigate the harm? What would be a good longterm policy approach?

  • Pam Samuelson

    This comment responds to Barbie: In your first post, you suggest that the government might nationalize the Book Search corpus, but then say this is unlikely. I agree with you on this. Somewhat more likely (although still unlikely at present) would be legislation passed by Congress that would permit digitization of orphan works. The orphan works legislation that has been pending in Congress would not permit mass digitization. A Google spokesman has said he thinks that mass digitization legislation for orphans will be more likely if the settlement is approved than if it is not. I would like to think this is true, but at this point, I think it is probably wishful thinking.

    The other points you make about property and “intellectual property” are points that have been debated for hundreds of years. Copyright is thought by many to be property because the law gives authors a set of exclusive rights–that is, rights to exclude other people–and other forms of property also often allow exclusion. I prefer thinking of copyright as a form of unfair competition regulation. The property metaphor has some unfortunate implications when applied to works of authorship.

  • Pam Samuelson

    This comment responds to spinoza:

    Libraries have been integral parts of the copyright regime since the Statute of Anne (1710). That law required publishers to deposit copies of their works with eight specific research libraries. Today’s US copyright law requires authors and other owners of copyright to deposit copies of their works with the Copyright Office. One of the two copies of published books deposited with the Copyright Office is delivered to the Library of Congress for its collection. Apart from this, you should realize that libraries are often the best customers that publishers have. The availability of books in libraries often, although not always, leads to readership that then leads to more sales than publishers would otherwise have. Libraries do promote access to knowledge, which is what the founders intended.

    You question my assertion that Google will have a monopoly on orphan books; yet, you say that if the settlement had wording that excluded others from making available orphan books, that would bother you. I will admit that the settlement agreement does not, in so many words, give Google this kind of exclusive right, but what I’m saying is that the effect of the settlement–and indeed its specific intent, in my view–is to give Google a license to those books that no one else can get because no one else has a class action lawsuit vs. it that could be settled in this way.

    Yes, other companies, such as Amazon, or nonprofits like the Internet Archive, could start scanning orphan books and hope either that no one will sue them or that if someone sues them, they do so by a class action that can be settled on comparable terms. I’ve talked with people who work with and for firms that might want to do scanning projects akin to Google’s, and I can tell you that they feel there is a lot of risk in doing so. They could claim fair use, as Google did, but there is some debate over whether the fair use argument that Google was making will be less likely to succeed if the settlement is approved.

    I’m glad we at least agree that there is social good in providing more access to orphan books.

  • Pam Samuelson

    This responds to Jerome Garchik: The settlement, if approved, will provide benefits to authors who register with the BRR, and as you say, some authors are signing up to be beneficiaries of the settlement. One of the major concerns I have about the settlement is that the AG does not seem to me to represent the interests of millions of authors on whose behalf it purports to be acting.

    You are right that settlements of lawsuits are often good things, but mostly this is true when it just settles the disagreement between this plaintiff and this defendant. Most settlements don’t have the wide implications for society that this one does. Usually when a compulsory license issues, it is the result of legislative action. This settlement is a privately negotiated compulsory license, and its beneficiaries are Google and the BRR registrants (who do not include millions of authors of books covered by the settlement).

  • Pam Samuelson

    This responds to alsma and Adina: The judge’s job is to consider whether the settlement agreement is “fair” to the class(es) at issue. Formally, that’s a yes or no matter. I am not a class action specialist, but I have talked with one about this case, and he said that while formally judges have only a yes or no option, they can and sometimes do say something to the effect: gee, I’d really like to approve of the settlement, but I’m concerned about x or y issue, and if the agreement did something about that, I’d feel better about it. If the parties really want to settle, and x or y is something that won’t unravel the deal, then the parties will have reason to ask for a continuance (that is, some time to work things out) and come back with a revised agreement that responds to the judge’s concerns.

    James Grimmelmann has written about some alternative terms that he thinks would make the settlement better. So I’d recommend that Adina look at his writings on this. I can imagine some terms that would make the agreement more palatable to me, but those terms would not, I think, be acceptable to the parties to the settlement (e.g., others could get a comparable license to digitize and make orphan books available).

  • spinoza

    “…but what I’m saying is that the effect of the settlement… is to give Google a license to those books that no one else can get because no one else has a class action lawsuit vs. it that could be settled in this way.”

    Pam, it sounds like what you are saying is that Google will have a *de facto* license, but this simply isn’t a correct way of characterizing the situation in my view. It will not be a “license” in any legal sense, since this civil case between a group of publishers and Google is just what the document says it is, a “settlement” between two potentially contending parties.

    Google’s creation of a database of orphan books in no way lessens access to them in terms of the books themselves or their content: anyone can, at any time, go to a library and borrow an orphan book, just as they can now. And any company or organization can, at any time, decide to build a database of orphan books and take the legal steps to make them available, just as Google is doing now. Google is attempting to establish rights over its database, but in so doing it is not changing the licensing rights of current copyright holders.

    What Google’s initiative does, however, is to massively expand our access to orphan books. By leveraging the current state of information technology, Google has facilitated making the intellectual content of these materials available to a much broader audience, thus making them much more useful to society. What I see is a company that is providing a tremendous social benefit without any negatives: Google’s initiative is not taking anything away from us, the settlement as simply a means for a company to protect its investment.

    All of this is why I believe that using words like “monopoly” or “exclusive license” greatly misleads and distorts the true nature of the situation.

  • spinoza

    “That law required publishers to deposit copies of their works with eight specific research libraries. Today’s US copyright law requires authors and other owners of copyright to deposit copies of their works with the Copyright Office.”

    Copyright depositories were not intended to “promote access to knowledge”, but rather to insure, through a handful of securely protected copies, the preservation of the books for posterity.

    “Apart from this, you should realize that libraries are often the best customers that publishers have.”

    For good or ill, publishers have learned to deal with the significant presence of libraries in the book marketplace, they of course have no choice. With academic books, for example, publishers have learned to price their books high enough to return a profit for the limited number of libraries that purchase them, relatively speaking. These prices can be exorbitant: an academic book targeted for libraries today begins at around $40, and can be twice that amount for many titles in the humanities and social sciences. Now that libraries are increasingly relying on interlibrary loan to cover their needs, so that even fewer copies are being purchased, publishers have been forced to play a cat and mouse game with their prices, creating a vicious circle in terms of economics: the more the publishers charge, the more libraries rely on interlibrary loan, forcing publishers to charge even higher prices to generate enough income to justify publishing a title. Except for the relative handful of academic bestsellers, this has made the majority of academic literature too expensive for individuals to purchase themselves.

    The situation in public libraries is just as bad: for any given bestseller, a public library will purchase several copies and these will circulate hundreds of times before the title passes on in terms of public interest. Patrons know they can rely on the library for getting multiple copies, thus saving them from having to purchase the book themselves. For each library doing this, say, for every six copies that a library purchases of a bestseller, a publisher has potentially several dozen or more sales of the title.

  • bowerbird

    ok, let’s look at what the settlement itself
    says about the prices that google will charge.

    it says books will be sorted into “pricing bins”.

    > The initial distribution percentages of
    > Settlement Controlled Price Books that
    > Google offers for Consumer Purchase
    > in the Pricing Bins will be:
    > 5% ($1.99),
    > 10% ($2.99),
    > 13% ($3.99),
    > 13% ($4.99),
    > 10% ($5.99),
    > 8% ($6.99),
    > 6% ($7.99),
    > 5% ($8.99),
    > 11% ($9.99),
    > 8% ($14.99),
    > 6% ($19.99) and
    > 5% ($29.99)

    so we’ve got 11% of the books being priced
    at $19.99 or more.

    we’ve got 30% of the books being priced
    at $9.99 or more.

    and we’ve got 49% of the books being priced
    at $6.99 or more.

    again, on these orphans, google did nothing more
    than _scan_ the books, prepare them for sale,
    and then do print-on-demand.

    yet they’re charging these outrageous prices…

    remember, the print-on-demand machines that
    are of the type that google will use to produce
    these books have a consumables-cost of just
    one penny per page, and that cost is likely to
    go down even further in the future, certainly
    at the scale that google will be doing things…

    so these “pricing bins” are highway robbery!

    and there’s no guarantee google won’t push
    the prices up even more. the “settlement”,
    in fact, gives them the explicit legal right to
    do just that, as we see with this language:

    > Google and the Registry may agree to
    > additional or different Pricing Bins
    > between, below and above these
    > prices at any time. In any event,
    > either Google or the Registry has
    > the option to require renegotiation
    > of the number of Pricing Bins or
    > the prices of the Pricing Bins at
    > the end of the three (3)-year period
    > commencing with the Effective Date,
    > and every four (4) years thereafter.

    this collection of books is _our_ cultural heritage.

    it would be an extremely bad decision — idiotic! –
    to hand it to a private company for exploitation…

    -bowerbird

  • laserguy

    Excellent & informative article on an important public issue!

    Contrary to the claims of those who benefit from extending its reach as far as possible (like the music & movie industries), copyright is NOT a “property”, it is a “right”. It is NOT intended to protect the “possessions” of the author. More specifically, it is a TIME-LIMITED right granted to authors, not as any sort of “balancing act”, but for the specifically expressed purpose of benefiting society by promoting advancements in science and the other useful arts.

    For the purposes of U.S. law (which is what we are talking about here), the nature and purpose of copyright is explicitly defined by no less than the U.S. Constitution itself (Article I, Section 8), which states in relevant part -

    “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

    The idea was that by granting authors & inventors a limited-time exclusive right to their writings & inventions, it would provide them incentive to create, and after this comparatively short time period had lapsed (originally only 14 years for copyrights), their works would fall into the public domain and thus benefit all of society.

    Far from being “thieves”, libraries were intended to promulgate these benefits – even while the copyright or patent was still in force! These copies were not “for posterity”, writers & inventors were required to initially publish their works in order to benefit society even further, by amongst other things giving your competitors a “heads-up” on what you had created, even before they had a legal right to copy it!

    Low-cost “generic” drugs are but one example of how this sort of arrangement has benefited society.

    (As a side-note, even most students know that using “Wikipedia” as a reference source to support one’s contentions is a good way to get a failing grade!)

    With regards to the “monopoly” issue – first off, simply using a xerox machine (or it’s digital equivalent) without the author’s consent does not give one rights over a resulting collection of stolen works.

    But the claim that “Of course Google has a “monopoly” on its own digital library” is a red herring, as no one here is arguing that Google should grant it’s competitors access to it’s own systems.

    Rather, the concern is that this agreement (negotiated solely by those who would stand to benefit financially from it), would grant Google an effective monopoly over the digital distribution of ALL orphan works!

    Publishing books without the illustrations also defeats the whole purpose of copyrights, as it would make many scientific books next-to-useless! And when I can buy an actual book (with all the illustrations & pictures intact) at a used bookstore for a couple of bucks, why should I be required to pay MORE than that for nothing but a cheap digital copy sans pictures & illustrations?

    I am also concerned that the “negotiated” prices are being set artificially high, by the same folks that are benefiting from it! IMHO, rather than unjustly enriching those who had nothing to do with the authorship of these books, if you are going to allow this sort of thing at all, it would be more in following with the intended purpose of US Copyrights as expressed by our founding fathers in the Constitution, to allow free digital display & reading of orphan works, absent any objection by the author.

    There are non-profit web sites already set-up to do this sort of thing for public-domain works, and I am sure they would be more than willing to take up the mantle, thus benefiting society as a whole, rather than lining the pockets of a few!

  • http://www.google-watch.org/modify.html Daniel Brandt

    I began writing about Google’s book grab in December 2004, soon after it was announced by Google. It took some effort to even get the confidential contracts between Google and some universities into the public domain, by using freedom of information laws in Michigan, California, and Texas.

    The lawyers for the publishers, and for the Authors Guild, soon began smelling an opportunity to make some money as more information came to light. I figured out that their approach was a scam as soon as it became clear that the privacy issue was getting lost in the scramble. My main concern then, as well as now, in addition to the problem of Google’s monopoly in general, is the fact that Google will be tracking everyone who accesses a book from Google’s computers.

    I note that the word “privacy” does not appear anywhere in this otherwise excellent summary of the proposed agreement. That’s not surprising, because there’s also nothing about reader privacy in the 323-page agreement. I’ve read that the American Library Association will have a few words to say about privacy very soon. Considering that I first appealed to them over this issue on December 15, 2004, and received no response, all I can say is, “Better late than never.”

    Unless it’s too late, that is.

  • http://www.webmultimediale.it/almansi Claude Almansi

    Thank you for this great explanation: I now begin to understand how US laws about class action may make it possible for a few US publishers and US authors to take decisions like the Google Settlement for all US publishers and US authors.

    However, how come a US ruling can void the copyright agreements between non US authors and publishers as far as their out-of-print books in google-scanned libraries are concerned?

    (I don’t mind the digitized version of my out-of-print books being made available again, but I do mind the DRM limitation of what users will be able to copy or print from them, and like Dr. Graf, I’d like to have the choice of putting them under a CC license).

  • Pam Samuelson

    The Google Book Search settlement does not just affect U.S. authors. It also extends to authors of books published in the U.S. who claim copyright in these books under U.S. as well as other laws. As Google has made clear in its notice about the proposed settlement, authors and publishers from outside the US may also be affected by the settlement. See http://books.google.com/booksrightsholders/agreement-contents.html, App. I.

    The settlement, if approved, would not “void” any agreement between non-US authors and their publishers, but it does contemplate that by being a member of either the author or the publisher subclass, non-US authors and publishers will have, by virtue of being members of the class, agreed to license Google to commercialize out of print, but in copyright books for Book Search.

    Dr. Graf may be able to form a scholarly community to negotiate with Google about open licensing arrangements for access to books that fall outside this settlement (e.g., books published in German and distributed within the EU, but not in the US). But within the US, the settlement gives Google the right to commercialize books covered by the settlement without the need for further negotiations.

  • http://blog.LogicalExpressions.com James Byrd

    I enjoyed your post and the fascinating discussion that followed in the comments. Like most of the people who left comments, I have strong feelings about the concept of so-called “orphan works” myself. Although the term could be applied to any intellectual property, the subject at issue here is really books, so I’ll focus on that.

    My main contention is that there is no such thing as orphan works. Every book has a copyright holder somewhere, whether it is the author, the publisher, an heir, or the state. The term “orphan works” is a euphemism designed specifically to erode the protection granted by copyright law.

    You mention that “A broad consensus exists about the desirability of making orphan works more widely available.” That would be a concensus among whom? Certainly not the copyright holders!

    On the one hand, I applaud the potential offered by the Google Book Search and the BRR. But the only works that should be made available through it are ones where the copyright holder has specifically granted permission. Doing anything else is literally stealing from the legal copyright holder, whether you can find that person/entity or not.

    Granting Google or anyone else (others, like the Internet Archive are trying to jump on this bandwagon now) protection against infringement lawsuits is just another way of “asking for forgiveness rather than permission.”

    Will preventing Google from displaying or selling “orphan works” reduce the amount of information available to the public? Maybe. But it doesn’t matter because that content was never theirs to sell in the first place.

  • bowerbird

    james said:
    > My main contention is that
    > there is no such thing as orphan works.

    please. educate yourself on the basics, ok?

    “orphans” are defined as the books for which
    their so-called “owners” cannot be located…

    there are lots and lots and lots of such books.

    many publishing companies have gone under,
    or been sold (and re-sold, and re-sold again).

    many of the companies that _claim_ to have
    rights to a book cannot _prove_ their claim…

    we _regularly_ deal with abandoned “property”
    of all types, rather than let it just sit in a lump.
    it’s called “lost and found”, and every place has it.

    is there any reason to be less concerned about
    _our_cultural_heritage_ than a left-behind scarf?

    > the only works that should be made available
    > through it are ones where the copyright holder
    > has specifically granted permission.

    fine, assuming you can _find_ that copyright holder.

    but if there’s nobody there to “grant” any “permission”,
    then it’s absolutely stupid to sit around and wait for it.

    i suppose you’d say that we should let _real_ orphans
    – you know, young humans who lost their parents –
    scrounge around the streets instead of caring for them.

    because — technically — they do have parents, or at
    least they _did_ have parents, at one time, didn’t they?

    > Doing anything else is literally stealing from
    > the legal copyright holder, whether you can
    > find that person/entity or not.

    ok, first of all, the use of the word “literally” here
    is quite a stretch. even copyright infringement is
    not “stealing” — not “literally”. so that’s incorrect.

    further…

    how can you _steal_ something from someone (or
    something) that might not even _exist_ anymore?

    believe me, once this old “property” starts churning
    up some new income, there will be all kinds of people
    coming out of the woodwork to get a chunk of the cash.

    -bowerbird

  • Kent Fitch

    @PamSamuelson:

    “Purchasers cannot download the book.” True, but people using an institutional subscription (eg, students at a subscribing university) or personal consumers are (legitimately) able to cut and paste or print the entire book (albeit print in chunks of 20 pages at a time). What “print” really means is up to the controller of the system on which printing is done – “printing” means creating a data stream which can just as easily be diverted to a file as a printer. And even if physically printed, the pages can be cheaply scanned and optionally OCR’ed. Watermarks and other identifiers will be removed/defeated and the anonymized content uploaded to file sharing networks.

    “anticircumvention laws will give Google a basis on which to challenge this kind of activity” True, but as the RIAA have found, the challenge is unlikely to be effective. And Google will have little incentive to care – unlike RIAA’s members, Google’s business model will not be threatened as they need very few sales to recoup their costs.

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  • spinoza

    Quote from laserguy: “Contrary to the claims of those who benefit from extending its reach as far as possible (like the music & movie industries), copyright is NOT a “property”, it is a “right”. It is NOT intended to protect the “possessions” of the author.”

    I’m sorry to have to correct you on this, but property itself is indeed a defined right in any given society, just ask anyone living in a communist country today. Since you seemed to appreciate my quoting from wikipedia, I shall do so again:

    “Intellectual property (IP) are legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law.[1] Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets.”

    In response to James Byrd, there are most certainly “orphan works”, both in a legal and a real sense. The copyright status of countless books have ended up in limbo, without a trace of the owner still existing. This can occur when a publisher ceases to exist (it happens much more frequently than you think), or when someone passes away without making arrangements for the transfer of ownership of one’s published work. I know from personal experience, in trying to find the copyright holders of several works I had made use of in the past, that published works can very easily end up with no identifiable copyright holder. In one case, I actually had to convince a major publisher that they were the copyright holder of an older, out-of-print book, and they didn’t want to believe me until I could demonstrate proof that they actually owned the rights.

    This is the reason why having a period of copyright last so long is ridiculous in this country, it really shouldn’t be longer that 20-25 years.

  • http://www.Inklingbooks.com/ Mike Perry

    Just this morning (Friday, April 24, 2009) the Manhattan law firm of DeVore & DeMarco, on behalf of seven authors and their representatives (including myself), hand delivered a letter to the court requesting that the various dates in the settlement be put back four months to give authors more time to study it and more time for public debate and comment about its provisions.

    You can find the letter at my website:

    http:/www.InklingBooks.com/

    The court is likely to hear arguments from all parties early next week. Those who’d like to make their own comments can find contact information here:

    http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en#q20

    –Michael W. Perry, Seattle

  • Jardineo1

    There seems to be an a priori assumption that “meaningful government oversight” is always for the good or the best. I don’t think that is always the case and there is no attempt to prove that assumption. If two or more parties agree to a deal, must it always require a legislative act, and executive action as well?

    This critique of the settlement, really, is a critique of class action suits. Yes, it’s a huge problem to allow a small minority of persons to form a class and then allow them to claim to represent all persons. Were any of the orphan works authors ever mailed an opt out letter? Talk about tyranny.

    The upshot, I suppose, is that, since the author’s guild sued their way into this deal; they and Google will find themselves being sued in the future by other persons or classes of persons who want a peice of the action as well.

  • Pam Samuelson

    In general, I have no objection to settlements of lawsuits between private parties and I agree with you that government oversight or intervention is not necessarily benign, but it is naive to think that just because a lawsuit results in settlement there is no need for any government oversight. Sometimes the settlement has third party effects–for example, settling a patent infringement lawsuit that results in market allocations that violate the antitrust laws–that make government review desirable.

    Google has made a massive effort to mail notices about the settlement to class members, but of course, to the extent that books were published 50-60 years ago, it is not easy to track down the appropriate rights holders (which is why we lawyers call these kinds of books “orphans”).

    Class actions can be an important way to ensure that consumers are protected against abuses, each of which is small as to each victim, but that add up when victims are many. But class actions can also be abused. A serious question in any class action is whether the persons or entities claiming to represent the class really share enough of the same characteristics to make them appropriate as representatives. But a settlement can happen without the class being certified by the judge prior to the settlement, and that is what is happening in the Authors Guild case.

  • Frances Grimble

    All this debate over “orphan works” ignores the issue that Google scanned approximately 2.5 million books that are in print and by locatable publishers and authors. Furthermore, the Settlement asserts Google’s right to reprint these works after they have been out of print for only one year. That is not only not “orphaned,” is it not enough time for most authors whose rights have reverted to find a new publisher and for that publisher to then reprint the book. Especially if the author needs to also revise the book for a new, updated edition (which however is probably similar enough to the previous edition for Google’s reprint of the previous edition to compete with it in the market).

    And, even furthermore, the determination of “out of print” (or more precisely, “not commercially available”) is made by Google–not the publisher or author. Print-on-demand books can be declared out of print according to the Settlement, but the criteria for doing so are completely undefined. So, the publisher can be actively selling the book, the publisher and author can be happy with the sales volume, but Google asserts the right to step in and reprint it anyway. And, the Settlement applies to the entire remaining length of the book’s copyright once Google declares it out of print.

    The Settlement is all about a huge ongpoing profit center for Google and the Author’s Guild’s Book Registry. The Book Registry is entitled by the Settlement to charge unlimited expenses taken from the payments due to the copyright holders, including reviewing the publishing contracts for every edition of every book in the Settlement. This is guaranteed to outstrip the “startup money” the Settlement says Google has to provide to the Registry. It may well end up that some copyright holders, perhaps many, have to pay more to the Registry than they receive.

  • Pam Samuelson

    It is possible for publishers or authors who object to the settlement to opt out of the class. They can also ask Google to take their books out of the Book Search corpus.

    The BRR does not belong to the Authors Guild. The settlement calls for it to be governed by half authors and half publishers, and presumably they will feel some sense of responsibility toward the authors and publishers who register with them.

    Still your point is well taken that collecting societies are wont to spend lots of $ on administration and less than authors and other rights holders may think is appropriate.

    I don’t quite understand why you think authors or publishers will have to pay the BRR.

    There is no “ongoing profit center” as the settlement has not been approved and BRR has yet to come into existence, let alone start collecting money.

  • Pam Samuelson

    Judge Chin has issued an order extending the period for comments and objections to the proposed settlement agreement in the Book Search case to Sept. 4. (This is two months longer than the parties had been willing to agree to.)

    The judge’s order is available at:

    http://www.scribd.com/doc/14741799/SDNY-Order-Extending-Deadline-to-September-4

    My letter on behalf of sixteen scholars raising questions about the settlement can be found at:

    http://www.scribd.com/doc/14744864/Samuelson-Letter-to-Judge-Chin-42709

  • http://www.Inklingbooks.com/ Mike Perry

    As I noted above, I’m one of the seven authors (or their representatives) who sent the letter to the judge asking for the four-month extension that he granted. Others include the estate of Nobel-prize-winning author, John Steinbeck.

    As a result, I’ve been contacted by European writers who are opposed to this settlement They have good reason to be upset. International copyright treaties permit no significant distinctions between domestic and foreign authors. So, as far as U.S. copyright privileges go, the settlement applies to them precisely as it does as to U.S. authors. I suspect that many will lose their copyrights without ever hearing about, much less reading this complex, over-300-page-long agreement.

    Until a European website develops to track events there, I’ve created a webpage where I will post links to news stories in Europe.

    http://inklingbooks.com/googlesettlement/googlesettlement.html

    At the moment, most of the news stories are coming out of Germany, where over 1500 writers have asked their government to look into this settlement. That could change in the next few weeks, as word spreads about what this settlement means.

    –Michael W. Perry

  • http://www.datcha.net/orphan/#google-settlement Bernard Lang

    There are many other things to be said about this settlement, but I will limit myself to some brief remarks (and keep the rest for a more systematic document):

    - this settlement is just completely ignoring international legislation, that has been signed by the USA. Can a judge ignore treaties signed by its own country.

    - many people give the impression that Google is the bad guy here. I do fear Google (and so should you), but this is no reason not to keep my wits. The bad guys here are the authors and publishers who are trying to raise a handsome profit from the work of others : the authors of orphan works. Google was quite happy with the indexing service. And I have observed this sad pattern for publishers in several other contexts. No all of them, fortunately … else I would not be speaking on this forum. The authors, and artists in general, are too often naive and will follow the explanations of the professionals they are used to deal with, at their own expense, and that of the public.

    - the worst effect of this settlement, if accepted by the judge, will be to undermine copyright in the eyes and the brains of the public, since a good part of this scheme is based on abusing the copyrights of orphan works. It will create considerable confusion between copyright that relates to content, and ownership of digitized versions that have no legal status anywhere as far as I know.

  • Pam Samuelson

    This comment responds to Bernard Lang:

    As I recall, the class of authors affected by the settlement are those that own copyrights in books that were published in the U.S. and that have been registered with the U.S. Copyright Office. Non-US authors who have neither published their books in the US, nor registered their claims of copyright are not affected by the settlement agreement. Moreover, the settlement, as a practical matter, does not affect authors of books that are unlikely to be in the libraries of major research institutions, such as the U Michigan library.

    U.S. courts can adjudicate through class action lawsuits the rights of persons not formally before the court because the named plaintiffs have held themselves out as the representatives of the interests of the members of the class who have not been named. If some authors, including those from France, Germany, or other non-US jurisdiction believe that the Authors Guild and the other named plaintiffs do not believe that the Guild is a fair representative of the class, they can object to certification of the class. If non-US authors object on the ground that the settlement is in violation of international treaty obligations, they can try to challenge the class certification. But treaties are not self-executing in the U.S. and non-US authors who publish their works in the US are bound by US laws.

    As for who is the “bad guy” here, I think it is fair to say that Google has gotten more than its fair share of heat over the settlement, and I agree with Bernard that at least some of the terms that you and others object to in the settlement agreement are terms that the AAP and the individual publisher plaintiffs in the second suit are most likely responsible for (i.e., BRR registrants will get 63% of revenues generated from orphan books in which they own no copyright).

    As for respect for copyright, I would have thought that the agreement will breed more respect for copyright because Google so clearly makes distinctions between public domain works that are freely downloadable and in-copyright books that you can purchase or see only parts of in response to a query. Orphan book authors and publishers would seem to me largely indifferent to rights in their books or they wouldn’t be orphaned.

  • valentin

    I have the origainal copy of google the dead souls please contact me ASAP I’m for real

  • http://www.linkedin.com/pub/krzysztof-czyzewski/1/746/7b0 Krzysztof Czyzewski

    I am IP lawyer from Poland. I am the head of IP practice in LSW law firm.

    It is quite disappointing that foreign books – the same as orphans – have been used only s a vehicle to settle without paying any real attention to them.

    For foreign authors and publisher the main problem is to explain to them how the settlement applies to their books. The authors of the settlement want the settlement to apply to books all over the world but they have not put any effort in explaining the idea of „American copyright / American interest/. Of course it may be done by lawyers from each jurisdiction, however it would be better to put in details in the settlement, instead of providing the readers with simple reference to USC. (For example – as far as Poland and Polish books are concerned – 16th of February 1927 is crucial).

    Secondly, it should be expressly stated what does it mean “use on the territory of the US”. Especially having in mind the argumentation of Google’s lawyers in SAIF case in France. Will Google use “IP number” limitation? As for today Google is far from saying “yes”.

    Thirdly, the idea of “commercial availability” should take into account also foreign perspective. What does it mean to be available for consumers on the territory of the US? What is the difference in offering books on amazon.com and on foreign sites eg. empik.com or [polish publisher].pl

    It seems that the authors of the settlement want it to cover all foreign books without however showing any respect to any alternative copyright systems and foreign interests.

    krzysztof czyzewski

  • Phil Ford

    Those looking for Mr. Grimmelmann’s article might find this link useful:

    http://www.acslaw.org/node/13228

  • amy amster

    Lee and Low Books is an independent children’s book publisher specializing in diversity. They take pride in nurturing many minority authors and illustrators who are new to the world of children’s book publishing.

    For more about their history and their books, visit:
    Minority Book Publisher

  • http://www.paradigmlife.net Paradigm Life

    I dont agree with what google and BRR are doing, but with as much power as google has it is hard to stop them .

  • Attorney

    I have to agree with Paradigm Life. The big g has too much power and influence. I think it’s time for an antitrust lawsuit to be filed by the department of justice. Years ago we broke up AT&T into the baby bells, same thing needs to happen here.

    Jim

  • http://www.martincollege.edu.au/courses/travel-and-tourism-courses.aspx Janet

    I think this is a good idea from Google since not everyone has the ability to access the books that are only available in some countries. Giving out snippets or certain “allowed” chapters is fine, it’s not the entire book – if the reader is really “interested” on the book then he will have to be forced to buy it or borrow it from a library.

  • http://searchengineoptimized.co.uk Daniel Sandercock

    I think the Google Book idea is a great one and I am all for it.

  • Osman Dagdelen

    I have loved Emma Roberts since I first saw you jizz her in Aquamarine. I was about 8, and it was my dear movie. Then in Nancy Drew, and the display she had on Nickelodeon