Monthly Archives: March 2011

First Analyses of the Opinion


By [Tuesday, March 22nd, 2011] at 11:59 pm

First Analyses of the Opinion

We have posted a collection of articles reporting on Judge Chin’s opinion to the News page and will be adding more as they appear.

I have posted my individual analysis of the opinion to my personal blog. Kenneth Crews has posted his own shorter summary of the opinion. We will, of course, be adding links to more analysis as it comes in.

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Settlement Rejected


By [Tuesday, March 22nd, 2011] at 3:40 pm

Settlement Rejected

Judge Chin just issued an opinion rejecting the proposed settlement. He adopts the position of the United States, writing, “many of the concerns raised in the objections would be ameliorated if the ASA were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement. I urge the parties to consider revising the ASA accordingly.”

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National Federation of the Blind Files Complaint Over Google Apps Accessibility


By [Saturday, March 19th, 2011] at 11:57 pm

National Federation of the Blind Files Complaint Over Google Apps Accessibility

The National Federation of the Blind may be a strong Google supporter when it comes to the settlement and its accessibility provisions, but when it comes to Google Apps, not so much. The NFB filed a complaint with the Department of Justice, objecting to the lack of accessibility in Google Apps. The complaint targets NYU and Northwestern, both of which have adopted Google Apps for their students. The NFB’s demonstration videos give a good indication of the sorts of issues to which the NFB objects.

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Alan Story: Creating the Google Domain


By [Friday, March 11th, 2011] at 3:12 pm

Alan Story: Creating the Google Domain

Alan Story, who writes about international equity in intellectual property regimes, has written an interesting new paper, Creating the Google Domain: A Critical Assessment of Google’s Book Search Scheme as part of the papers from the third CopySuth Workshop in Rio de Janeiro. As the title promises, it’s a genuinely “critical” look at the settlement. Here is a quote, from relatively early on, which gives the flavor of the project:

What GB has done is to link together Google, which usually does not benefit directly from copyright, and publishers, which do, into a distinctly non-benevolent digital package which benefits them both. For this US imperialistic project to succeed, the Internet’s ever expanding global net provides the best marketplace yet invented to allow Google’s corporate model to generate profits.

I suspect that if you are comfortable with Marxist analyses of the “capitalist system,” you are probably nodding your head at this point, and if you are not, you are probably shaking it. On its own, this paper is unlikely to change your point of view on this more fundamental question. Story’s is the point of view that says that advertising-supported services like Google are not “free” because the advertising raises the cost of the products being advertised; contrast this with the more liberal point of view that the cost of the advertising is its manipulation of users’ autonomy to trick them into buying things, or the economic point of view that the cost is fully borne by advertisers and consumers benefit.

Whatever one’s view, though, Story’s paper puts the settlement in a different global perspective than is typically done. Most of the objections came from what would generally be called the global North: rich, industrialized countries like France and Japan. But, as Story reminds us, the original version of the settlement had deliberately global reach, including over 100 countries in the global South.

Story also engages with Gillian Spraggs‘ work on the settlement from authors’ perspective. Here again, the critique is global: “A poet from Malawi cannot match the resources available to the Murdoch-owned publisher Harper Collins.” He emphasizes the relative powerlessness of authors, even within the North.

In the end, Story argues, the settlement simply reinforces the dominance of books and culture from the North; even “open access” is an agenda that reproduces existing power relations. He pulls out a line from Robert Darnton’s proposal for a national digital library that suggests the project would increase the United States’s “soft power.” This really is a critical perspective; in a sense, it argues that the debate over whether to approve or reject the settlement misses the point entirely.

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Update on French Cases


By [Friday, March 11th, 2011] at 2:40 pm

Update on French Cases

Intellectual Asset Management has an update on litigation against Google in France. Google Books, Google Images, and Google Videos have all been targeted in separate lawsuits. The courts have been going every which way in terms of whether to apply French or United States law, and on how to analyze Google’s indexing and search services. The tl;dr version is that in the most recent case, involving Google Videos, the court applied French law and held Google not liable as a “passive” rather than an “active” actor, but that this state of affairs could change in light of pending French legislation.

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Jenna Newman Gives a Publisher’s Perspective


By [Friday, March 11th, 2011] at 2:30 pm

Jenna Newman Gives a Publisher’s Perspective

Jenna Newman’s new article, The Google Books Settlement: A Private Contract in the Absence of Adequate Copyright Law has just been published in Scholarly and Research Communication. Newman worked with the University of British Columbia Press to claim its books with Google and to formulate its strategy for dealing with the proposed settlement. Her article is an utterly invaluable look at the settlement from a publisher’s perspective.

I would like to pass quickly over Newman’s overview of the settlement and discussion of the larger policy issues it raises. She has spent a lot of time thinking about the settlement and is deeply versed in the literature on it. There is little here that will be new to settlement junkies, but these sections are a good synopsis of the debates for more casual settlement followers.

The heart of the article is its discussion of the settlement’s implications for publishers. Here are some of the interesting factual and analytical points Newman raises:

  • Canada already has an orphan-works scheme administered by the Canadian Copyright Board and Access Copyright. Although the settlement will cover Canadian books, it “does not refer to this Canadian scheme but instead develops its own additional layer of bureaucracy.” Nonetheless, “it is difficult to separate the commercial circumstances of Canadian and U.S. publishers.” (18)
  • Academic authors’ interest in wide distribution diverges from their publishers’ commercial interests. (20)
  • “The revenue models generate more revenues for Google than for publishers” — or for authors — although this is contingent on the exact split between authors and publishers. (21)
  • ” However, although the work to assemble and manage a claim is not trivial, opting out does not relieve a publisher of much of that work, as it must still forward to the settlement administrator a complete list of all books that the opt-out covers.” I personally doubt this, although I admit to having changed my mind on it in the past and reserve the right to change it again. I believe a simple “I opt out” statement is sufficient, and leaves the burden on Google to avoid making any uses of any books to which one holds the rights. The parties cannot put the burden of sorting that out on the copyright owner who wants nothing to do with the settlement. However, as a practical matter, for the copyright owner who doesn’t plan to bring an independent lawsuit, Google’s promise to remove claimed books is the best available option, which means one should go ahead and identify them all. (21)
  • UBC Press has been a member of the Partner Program since 2005, as it “offers many of the benefits the settlement does, but further limits uses by Google.” The direct advertising revenues are peanuts, but the traffic and provides advertising for the titles. (22)
  • UBC Press isn’t interested either in Consumer Purchase or the Institutional Subscription. It already is quite well-positioned to sell to academic libraries. Indeed, “It is therefore to UBC Press’ advantage to remain in the settlement class and participate in the Partner Program.” (22-24)
  • “As of 2010, the majority of UBC Press’ titles are included in the Partner Program, which means that even before the Press removes or excludes its list, most of its titles should not be subject to the settlement’s access and display uses anyway.” This substantially confirms the William Morris Endeavour advice that publishers are unlikely to make much uses of the settlement programs. (23-24)
  • UBC Press’ initial 2005 letter to Google objecting to the book scanning simply told Google what UBC Press’ ISBN prefix was. That’s a remarkably simple way of communicating a simple request. (23)
  • UBC Press had a difficult, tedious process for creating its complete list of titles. It involve multiple internal databases and paper records, both of which fed into a complicated Excel spreadsheet. (25)
  • In some ways, Google had better metadata than UBC Press itself did; in some ways, its metadata was much worse. Publishing is full of corner cases, such as editions with the wrong ISBN that were fixed by pasting in a correction. Newman comments, “Though these error rates may be acceptably small to Google given the database’s side, they create a more significant effect on individual rightsholders.” (25-26)
  • The database is (or was, as of the article’s last edit) still incompletely baked. Given, for example, the different ways to identify UBC Press (e.g. “University of British Columbia Press”), it is not confident that it has found all of the entries for its books. Other limitations and ambiguities remain. “The settlement administrator has not articulated how Google will reconcile hard- and softcover versions … .” (26-27)
  • When it comes to the rights, “UBC Press considers any cash payments under the settlement to be a form of subsidiary rights and proposes to split these revenues 50/50 with authors.” (27)
  • The workings of a search of the database are described in detail — with a diagram — at pages 28-29.
  • “Although it can be time-consuming to confirm individual titles’ rights status, this is not an unreasonable demand of publishers, which should already have systems to manage rights.” (33)
  • UBC Press plans to substitute itself for at least two of the settlement’s key programs. First, by withholding all titles from display uses, it keeps the books out of the Revenue Models. Second, it has little need for the Registry: “The Press is better positioned to identify and locate authors or their heirs than the Registry and can offer authors more efficient disbursements and ongoing claims management.” (33-34)
  • “UBC Press’ assertion that virtually all its books are still in print unless authors say otherwise could be cynically interpreted as an opt-out digital rights clearance strategy of its own. However, the Press maintains ongoing communication with its authors, and, unlike Google’s, UBC Press’ use of authors’ work is founded on an initial explicit grant of rights and mutual investments in the work’s content. It will keep authors informed of settlement developments, though the Press has deferred its planned author outreach until the settlement’s future is clearer following the ruling.” (35)
  • The future remains quite uncertain: “Rights-holders, however, are in the trickier position of estimating the potential value of their works in a market just barely emerging.” (35)
  • Newman is less concerned that publishers will use the settlement to grab rights from authors than that others will make unfounded claims to orphan works. Google won’t care if the wrong person claims a book, and the BRR may not be in a position to investigate. (41)
  • As of 2010, book prices couldn’t be uploaded in bulk, but had to be “entered manually, book by book.” Has this changed with the launch of the Google eBookstore? Anyone out there who has worked with the interface, let me know. (49)
  • “Publishers are not solely motivated by economic interests either. … But a publishing house is also a business … .” (52)
  • From the footnotes: “In terms of income earned, UBC Press may well see higher returns selling one or two copies of each backlist title per year than on a title’s inclusion in the institutional subscription.” (57)

Highly recommended; worth reading in detail.

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Trigona on Google Book Search Choices


By [Tuesday, March 8th, 2011] at 3:09 pm

Trigona on Google Book Search Choices

Giovanna Occhipinti Trigona has published Google Book Search Choices in the Journal of Intellectual Property Law and Practice. In the words of the abstract, it “critically analyzes Google’s proposal in the context of the Bern Convention, discussing the impact on IP rights and assessing the effect upon the position of rights-holders upon acceptance.” The key word here is “critically”; Trigona is particularly concerned with the procedures used to craft the settlement:

Neither Google’s new IP rights consent collecting system, attributing a by-default meaning to the non-action conduct, nor the by-default extension of consent to all rights-holder’s literary production correspond to the legislation in force.

She reads the Berne Convention, however, to prohibit this way of proceeding:

First, and most importantly, Article 9.2 of the Berne Convention declares ‘it shall be a matter for legislation to permit reproduction of works’, so that the signatory countries must dispose of IP rights’ matters only through the power of their respective Parliaments, and to the extent accorded by the protection principles set forth by the Convention.

This is an interesting argument. It is not the typical article 9.2 attack on the settlement; others have focused more on whether the settlement passes the so-called “three-step test” for article 9.2 (whether it is confined to “certain special cases,” whether it “conflict[s] with a normal exploitation of the work,” and whether it “unreasonably predudice[s] the legitimate interests of the author.” Instead, Trigona directly attacks the institutional choice inherent in the settlement:

The Amended Settlement is a legal consensual transaction deed and will receive the authority of judicial settlement once approved by the US District Court. Indeed, according to the hierarchy on legal sources, neither has a private deed nor a judicial act enough amending power for changing and/or introducing new legislation, as lower in hierarchical ranking. Even if the lack of action means something for the rights-holder, this, without a piece of legislation attributing a by-default meaning, can only be of denial, as it is for the silence expressed within internet practice.

The standard reply here might be that Congress has explicitly chosen to delegate certain powers to courts who apply the law, and to the private parties who draft settlements that courts approve. Thus, there would be no hierarchical conflict. This, of course, raises issues about the actual scope of that delegation under Rule 23. Trigona’s reading of article 9.2, however, might also state that such delegations are simply forbidden: this is a matter for “legislation,” not for “adjudication” or “settlement.”

Trigona also objects to Google’s “survival rights on data about the Research corpus, even when USA copyrights in a book have expired,” saying that Google will enjoy a “license expressed in a once-and-forever consent which certainly goes beyond the author’s and his heirs’ lives.” As a license matter, this seems unobjectionable: after copyright expires, of course Google should be free to do this, as that is the essence of the expiration of copyright. But this might also be an objection to Google’s de facto exclusive control over the data it has gleaned, so that this is more about Google’s ability to withhold data from others, rather than about Google’s permission to examine the data.

In conclusion, Trigona claims that the court is unlikely to bind rightsholders’ heirs and that the settlement will not bar their lawsuits, as it was “collected in breach of legislation.” I think this overstates the case; one cannot say as much without a fairly detailed analysis of United States preclusion law, which she does not undertake. She proposes the conversion of the settlement to an opt-in basis, with a few further changes included to give copyright owners more ongoing control over how Google uses their works. She seeks, that is, a “better balance,” rather than outright rejection.

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Long Extension in the Photographers’ Case


By [Tuesday, March 8th, 2011] at 10:28 am

Long Extension in the Photographers’ Case

The parties in the ASMP case have agreed to another extension. This one requests a six-month delay, until August 25. That’s a long time from now.

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