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DOJ Weighs in on Amended Google Book Settlement

WriterBeware — Tue, 09 Feb 2010 17:57:00 +0000

Posted by Victoria Strauss for Writer Beware

Last September, the US Justice Department urged the courts to reject the Google Book Settlement, citing concerns about class action, copyright, and anti-trust laws. The DOJ's brief put the Settlement's approval process on hold, and forced the parties back to the negotiating table--resulting, in November, in the filing of an Amended Settlement. New deadlines were set for authors and for the filing of objections, and the Fairness Hearing (to determine if the Settlement will stand) was postponed to February 18, 2010. On Thursday, in a statement of interest filed with U.S. District Court Judge Denny Chin in New York, the DOJ indicated that, while it continues to believe that the Settlement could provide a major public good, and acknowledges that the Amended Settlement Agreement includes "substantial" changes, it's still not satisfied. (The filing can be seen here.) The DOJ's strongly-stated concerns fall into the same areas it highlighted in its previous filing. - Copyright. Not to put too fine a point on it, the ASA violates current copyright law, by requiring rights holders to opt out rather than to opt in. "In its current form," the DOJ writes, "the ASA is inconsistent with the policy of the Copyright Act, as established by Congress, making the argument that the ASA furthers the purposes of the Act a difficult one. The ASA seeks to carve out an exception from the Act’s normal rules and presumptions, which require a rightsholder to affirmatively grant permission for the kinds of uses contemplated by the ASA. The parties claim that creating an opt-out exception would better serve the purposes of the Constitution’s Copyright Clause by promoting the progress of science and the useful arts. That, however, is a judgment better suited for legislative consideration, rather than one for courts to make in the context of approving a settlement." - Anti-trust law. The DOJ feels that the legal rights granted by the ASA "confer significant and possibly anticompetitive advantages on a single entity – Google. Under the ASA as proposed, Google would remain the only competitor in the digital marketplace with the rights to distribute and otherwise exploit a vast array of works in multiple formats. Google also would have the exclusive ability to exploit unclaimed works (including so-called 'orphan works') without risk of liability." In other words, although the ASA leaves Google competitors theoretically free to build a digital library by the same methods Google has used, it's highly unlikely that any entity would be willing to open itself to the infringement lawsuits that would surely follow. Google thus gains what amounts to a monopoly. "Nothing in the ASA," the DOJ writes, "addresses this concern." - Class action issues. "Although the United States believes the parties have approached this effort in good faith and the ASA is more circumscribed in its sweep than the original Proposed Settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation." In other words, while the original lawsuit was intended only to address Google's unauthorized scanning of in-copyright works, the ASA empowers Google to go far beyond simply scanning, enabling it also to become a dominant publisher and retailer of digital books. The DOJ is concerned that the class representatives don't have the right under existing laws to grant Google these sweeping rights. It also questions whether the class adequately represents absent members (foreign rightsholders and authors of orphan works), and whether class members received sufficient notice of the ASA and its terms. If the anti-trust concerns are resolved, and the Court decides that the class will stand, the DOJ recommends that a number of additional safeguards be incorporated into the ASA, including: - An "opt-in regime," or, if the Court approves an opt-out regime, a substantial waiting period before Google can exploit in-copyright works without permission from the rightsholders. - A delay in the acceptance of the ASA, to give the Book Rights Registry a chance to "set standards designed to further reduce the volume of unclaimed works after expiration of the waiting period"--i.e., to reduce the number of orphan works--and, to the same end, a "reasonably diligent search" for rightsholders of unclaimed works after the waiting period has expired. - Limiting Google's license to commercially exploit unclaimed works to a defined term, say five or ten years, with the option to renew. In conclusion, the DOJ reiterates the shortcomings of the ASA, but leaves the door open for continued negotiation: Despite the commendable efforts of the parties to improve upon the initial Proposed Settlement, many of the problems previously identified with respect to the original settlement remain in the ASA. The United States remains committed to working with the parties on the settlement’s scope and content. Will the parties return to the negotiating table, postponing the Fairness Hearing yet again? Stay tuned.

Dept. of Justice weighs in on Amended Settlement

Mary Robinette Kowal — Fri, 05 Feb 2010 13:06:48 +0000

by Michael Capobianco

Things look increasingly grim for the Google Books Settlement. The US Department of Justice echoes many of the problems SFWA raised with our objection (and cites our objection), in addition it raises antitrust concerns and Rule 23 problems. Rule 23 concerns the conditions for creating a class action.

What would result if the parties and the judge followed the DOJ’s recommendations would not look much the current settlement, and would require opt-in, diligent search for orphans, Unclaimed Works Fiduciaries with real power.

Here’s the whole DOJ Statement of Interest as a .pdf

SFWA’s formal objection, as .pdf

The 28th was the last day to opt out of the Google Book Settlement

Mary Robinette Kowal — Thu, 28 Jan 2010 12:47:33 +0000

The 28th was the last day to decide if you wanted to opt out of the Google Book Settlement. If you did nothing, by the terms of the settlement, you are automatically “opted” in.

Here are some links we hope might help.

Video of the NYC Google Book Settlement Workshop

Mary Robinette Kowal — Wed, 27 Jan 2010 01:51:07 +0000

The New York Chapter of the Internet Society is recorded video of the NYC Google Book Settlement Workshop. You may watch the two hour and fifteen minute workshop there or here.

With NWU President Larry Goldbetter moderating, the panel was

Paul Aiken – Authors Guild
James Grimmelmann – NY Law School
Lyn Chu – Writers’ Reps LLC

with additional input from:

Ed Hasbrouck – National Writers Union
Sally Shannon – American Society of Journalists and Authors
Michael Capobianco – Science Fiction and Fantasy Writers of America

Remember: January 28, 2010 is the last day to make a decision about opting in or out of the settlement.

Authors Guild offers phone seminars on Google Book Settlement

Mary Robinette Kowal — Sat, 23 Jan 2010 17:32:55 +0000

The Authors Guild is offering telephone seminars next week to help authors and agents who have questions about the Google Book Settlement. Remember the deadline to make a decision is January 28th.

For those still seeking more information about the Google Book Settlement, we’ll be hosting five phone-in seminars next week. These are open to all authors and agents. The seminars are free, except for your usual long-distance phone charges. We’ve expanded the capacity to accommodate many more people. We encourage you to forward this on to other authors and groups of authors.

Each seminar will provide a short, clear explanation of the settlement and will answer all questions from participants. Each seminar will last about an hour. The seminars will be conducted by Paul Aiken, Jan Constantine, and Anita Fore, the Guild’s Executive Director, General Counsel, and Director of Legal Services.

Here are the dates and times, click on a link to sign up:

Monday, January 25, 2010 at 10:00 AM Eastern Std Time

Monday, January 25, 2010 at 3:00 PM Eastern Std Time

Tuesday, January 26, 2010 at 10:00 AM Eastern Std Time

Tuesday, January 26, 2010 at 3:00 PM Eastern Std Time

Wednesday, January 27, 2010 at 10:00 AM Eastern Std Time

When a seminar is full, it will be removed from the list of options on the online registration form.

Another Google Book Search Settlement Deadline

WriterBeware — Fri, 22 Jan 2010 22:31:00 +0000

Posted by Victoria Strauss

Writers: Another Google Book Settlement deadline is fast approaching. Per the amended Settlement agreement, January 28, 2010 is the last date you can opt out of the Settlement, or opt back in if you previously opted out and have since changed your mind.

(Note: The Settlement covers only US copyright holders published on or before January 5, 2009, and only books or inserts published in the US, Canada, UK, and Australia.)

Here’s the deal:

- If you want to opt out of the amended Settlement, you can fill out this online form. Opting out means you will not be included in the Settlement and will receive none of its benefits (including cash payment for any books or inserts of yours that Google may have digitized without permission), but will retain your right to sue Google for copyright infringement and other claims related to the Settlement. Google is currently “voluntarily” promising to remove the works of opt-outers from its database, though there’s nothing in the Settlement language to hold it to that.

- If you opted out before the Settlement was amended, and have changed your mind, you can now opt back in. Again, there’s an online form you can fill out. Opting back in means your books and inserts will be included in the Settlement, that you’ll receive a small cash payment for books and inserts that Google digitized without permission, and that you’ll receive a portion of the revenue Google realizes from the commercial uses it makes of your work. You’ll also be able to control how and whether your books and inserts are displayed, and how Google will be able to offer them for sale (with some limitations). However, you give up your right to sue Google for any claims related to the Settlement.

As an alternative to the online claim forms, you can contact the Settlement Administrator directly:

Settlement Administrator

c/o Rust Consulting, Inc.

PO Box 9364

Minneapolis, MN 55440-9364

UNITED STATES OF AMERICA

BookSettlement@RustConsulting.com

- What if you do nothing? If you’ve already opted out or in, and are happy with your decision, there’s nothing you need to do. If you haven’t yet done anything, and take no action by January 28, you will automatically be part of the Settlement. US copyright holders are automatically opted in to the Settlement, even if they do nothing (a major objection among Settlement opponents, since this reverses a long-standing principle of copyright law).

- Whatever decision you make, regard it as permanent. It’s possible that, at the Fairness Hearing on February 18, the Settlement will be amended again, or even thrown out (though I think that’s unlikely). If so, you may have to decide to opt in or out again. However, if the Settlement is approved, you will not get the chance to change your mind. Be prepared, therefore, to live with the decision you make now.

- What next? If you opt out, you’re done. If you opt in, however, you must establish how and whether Google will be able to display and sell your books and inserts. To do this, you must “claim” your works. Once again, there’s an online form, but there’s also the option of a simplified method, which involves emailing your bibliography to the Settlement administrator.

Opt-inners can claim their works at any time. However, if you want to direct Google to remove or exclude your works from its database, you must claim your works on or before April 5, 2011. (For why you might want to do this, see the next-to-last paragraph.) If you ask Google to remove or exclude your works, you may be able to change your mind later–but there are no guarantees. And if you want to receive a cash payment for works that Google digitized without permission, you must claim your works on or before March 31, 2011.

For writers who support the Settlement, it’s a simple matter of opting in and claiming your writings. For writers who oppose it and don’t want Google to display or sell their writings, things are more complicated. Is it better to opt in, giving up your right to sue but asserting control over your works? Or is it better to opt out and preserve your right to sue, with no guarantee that Google won’t someday decide to change its “voluntary” policy of removing opt-outers’ works from its database? If you’re a pragmatist, the former may make most sense, since it assures you of control (at least, as much as is possible in a hugely open-ended Settlement whose long-term implications are not even remotely clear). For those who stand on principle, however–whatever that principle may be–opting out, even with the uncertainties involved, may be the best choice.

I opted out of the original Settlement, and I will remain opted out of the amended Settlement. Although the amendments do improve the Settlement’s terms, and although I am sympathetic to the idea of a digital world library, for me the principle of copyright trumps all other considerations. By assuming permission, rather than seeking it, Google is turning copyright law on its head, and setting dangerous precedents for the future. I don’t deny that copyright law could use some changes–but this should be accomplished through legislation, not as the default result of a lawsuit.

Links for further reading:

- Google’s Settlement FAQ

- The Laboratorium is the blog of law professor James Grimmelman. He is an informed, relatively neutral observer of the Settlement, and (in my opinion) has provided some of the most intelligent and reasoned commentary on it. His article, “How to Fix the Google Book Search Settlement,” precedes the amendments, but provides a good overview of the history and issues. “The Google Settlement: Why It Matters,” written post-amendment, discusses why the changes don’t render the Settlement less problematic.

- The Public Index provides general information and links to many documents.

- Transcript of a SFWA panel discussion on the Settlement.

Webcast: Google Book Settlement Workshop – 1/20/2010

Mary Robinette Kowal — Fri, 22 Jan 2010 22:05:57 +0000

On Jan 20, the American Society of Journalists and Authors (ASJA) , the National Writers Union (NWU), Science Fiction and Fantasy Writers of America (SFWA) and the Internet Society’s New York Chapter (ISOC-NY) jointly sponsored a workshop to discuss the implications for writers of the proposed Google Books Settlement (GBS).

With NWU President Larry Goldbetter moderating, the panel was

Paul Aiken – Authors Guild
James Grimmelmann – NY Law School
Lynn Chu – Writers’ Reps LLC

with additional input from:

Ed Hasbrouck – National Writers Union
Sally Shannon – President, American Society of Journalists and Authors
Michael Capobianco – Science Fiction and Fantasy Writers of America

Special thanks to NWU for hosting, ASJA for handling registration, and Joly MacFie of ISOC-NY for recording the event.

[Audio clip: view full post to listen]

Transcript available for online Google Book Settlement panel

Mary Robinette Kowal — Thu, 21 Jan 2010 15:03:38 +0000

Today, Science Fiction & Fantasy Writers of America, Inc., hosted an online panel discussion regarding the proposed settlement between Google, Inc. and the Authors Guild, Inc., and other class action plantiffs.

The text-based panel ran for 90 minutes on the SFWA discussion forums, creating an instant transcript for writers who could not make the opening discussion. After the first 30 minutes of discussion, the floor opened for questions from the audience.

Full details about the panel

Updated to add: The panel has wrapped up, but you can read a transcript of it.

We also have a pdf of the online panel discussion as well.

SFWA Hosting Online Panel Discussion on Google Book Settlement

Mary Robinette Kowal — Tue, 19 Jan 2010 00:28:45 +0000

CHESTERTOWN, Md. – Science Fiction & Fantasy Writers of America, Inc., will host an online panel discussion regarding the proposed settlement between Google, Inc. and the Authors Guild, Inc., and other class action plantiffs.

The text-based panel will be held at 11 a.m. (EST) Jan. 21 and will run for 90 minutes on the SFWA discussion forums. The text will create an instant transcript for writers who cannot make the opening discussion. After the first 30 minutes of discussion, the floor will open for questions from the audience. The online discussion is open to the public, although anyone wishing to ask questions must register at the website. Visit the SFWA discussion forums at http://www.sfwa.org/online-google-settlement-panel/ to watch the panel and to register.

Panelists include Paul Aiken, Lou Anders, Michael Capobianco, Charles Stross and Lynne M. Thomas. SFWA Secretary Mary Robinette Kowal will moderate.

The purpose of the panel is to explain what the settlement entails, what impact it may have on the future of books, publishing and copyright, and dispel any lingering confusion regarding the settlement. SFWA hopes to help people make informed decisions while recognizing that every writer will approach that choice from a different point of view.

About the panelists

Paul Aiken is a graduate of Cornell Law School and has served as the executive director of the Author’s Guild since 1993.

Lou Anders is editorial director of Pyr, an Imprint of Prometheus Books. A multiple Hugo, Philip K.Dick, Chesley and World Fantasy Award nominee, Anders has served as the executive editor of Bookface.com and worked as the Los Angeles liaison for Titan Publishing Group. He has published more than 500 articles in such magazines as The Believer, Publishers Weekly, Dreamwatch and DeathRay.

Michael Capobianco served as president of SFWA from 1996-1998 and 2007-2008. He received the Service to SFWA Award in 2004 and is currently on SFWA’s Board of Advisors. He has authored one science fiction novel, Burster, and co-authored four others.

Charles Stross is a British-born author of science fiction, fantasy and horror. His work has earned multiple nominations for an array of awards, and he won the Hugo Award in 2005 for his novelette “The Concrete Jungle.” A former computer programmer, Stross maintains an interest in online and technology issues.

Lynne M. Thomas is the head of Rare Books and Special Collections at Northern Illinois University in DeKalb, Ill., where she is responsible for popular culture special collections that the papers of science fiction authors Robert Asprin, Tamora Pierce, E.E. Knight, Kage Baker and Jack McDevitt, as well as a significant collections of dime novels and popular historical children’s literature. She is the co-author of Special Collections 2.0, a book about web 2.0 technologies and special collections in libraries.

About SFWA

Founded in 1965 by the late Damon Knight, Science Fiction and Fantasy Writers of America brings together some of the most successful and daring writers of speculative fiction throughout the world.

Since its inception, SFWA® has grown in numbers and influence until it is now widely recognized as one of the most effective non-profit writers’ organizations in existence, boasting a membership of approximately 1,500 science fiction and fantasy writers as well as artists, editors and allied professionals. Each year the organization presents the prestigious Nebula Awards® for the year’s best literary and dramatic works of speculative fiction.

From the Authors Guild: Simplified Method for Claiming Works for Google Book Search Settlement

WriterBeware — Wed, 13 Jan 2010 15:36:00 +0000

Posted by Victoria Strauss for Writer Beware

The following message was sent to Authors Guild members this week. If you’ve chosen not to opt out of the Settlement and haven’t yet claimed your works on the Settlement website, this should make things a bit easier.

—————————-

Claiming a lengthy list of your books, short stories, essays, poems and articles for Google settlement benefits just got much easier. You can now start the process by simply submitting your bibliography to the claims administrator. You need only e-mail — or send by regular mail — a list of your books and shorter literary works (poems, short stories, articles) that may appear in books covered by the settlement. When in doubt, we suggest you submit everything.

Although the author’s name and the title of the work is enough to get the ball rolling, it’s helpful to include this additional information you can find in or on your books: ISBN, publisher, place and year of publication.

E-mail your bibliography to BookSettlement@RustConsulting.com. Feel free to send it as an attachment or paste it into the body of the e-mail itself.

If you prefer to submit your bibliography by regular mail, send it to:

Settlement Administrator
c/o Rust Consulting, Inc.
PO Box 9364
Minneapolis, MN 55440-9364
USA

You may still file your claim through the regular claiming process, which our members with short lists of works have generally found easy to use. To do so, or to learn more about this simplified procedure, go to www.googlebooksettlement.com.

IMPORTANT NOTE: The Settlement Administrator will contact you to complete your claim, but it may be several months before that happens. You will be contacted before any of your works are displayed pursuant to the settlement, and you will have ample opportunity to instruct Google regarding which of your works you’d like displayed. (Remember that this is really about out-of-print books. None of your in-print books will be displayed under the settlement without your approval.)