Google Book settlement faces legal assault

Corrected April 13: An earlier version of this story incorrectly characterized the source of Consumer Watchdog's revenue.

A proposed settlement in a copyright lawsuit involving Google's book search has drawn applause, envy, and from a handful of critics, an attempt to derail the deal.

The settlement covers orphan works, meaning books that are still copyrighted but whose copyright holders can't be located. Google would like to scan in and digitize those books as part of its efforts to create a digital library of impressive breadth and scale.

Millions of orphaned works are currently hidden away in library stacks, sometimes ignored because anyone who attempts to digitize them may be subject to copyright infringement. It's unclear whether the owners of these works will ever resurface.

For books, Congress has tried--and failed--to address those concerns for individuals interested in using material from copyrighted but orphan works. Now, under the terms of its settlement related to its Google Books Library Project, the Mountain View, Calif., company is essentially trying to adopt the whole orphanage.

For advocates of free online access to books, the Google Books initiative, which is digitizing the works of several major libraries, may seem like an entirely positive development. Google faced lawsuits from publishers and authors, however, for allegedly "massive" copyright infringement, and eventually agreed last year to a settlement.

While most groups concerned with Google's singular access to orphan works are considering filing briefs with the court before a June 11 hearing, at least one group, Consumer Watchdog, is asking the Justice Department to intervene and plans a meeting on Monday with department officials.

"Google's going to have an unfair advantage against any competitor because they will have already settled this issue," said Consumer Watchdog President Jamie Court. (Consumer Watchdog is a California-based advocacy group that opposes what it calls "big business" lobbyists; its budget was about $3 million in 2007.)

In addition, an article at Wired.com last month noted that a group at New York Law School that plans to file legal objections is bankrolled by Google arch-rival Microsoft.

The future of orphan works was left unsettled last year when the Orphan Works Act of 2008, which passed in the Senate, failed to make it out of committee in the House of Representatives. The bill would have enabled individuals or entities to use orphan work material under certain terms, given they made a diligent attempt to first find the rightful owner.

The issue has fallen by the wayside in Congress as politicians focus on President Obama's priorities, and the House and Senate judiciary committees focus on patent reform. The proposed settlement has made the topic timely again, though, for those interested in seeing orphan works made available for online consumption.

Complicated Terms
Because the settlement resolves a class action suit, authors have the right to "opt out" of the agreement. If the authors do not come forward, however, the terms of the settlement say Google has the right to digitize their work. So while Google will be free from liability if it chooses to digitize these works, other groups interested in using them will still face the risk of violating copyright.

For its part, Google said on Friday that it stands behind its letter to the U.S. Copyright Office from 2005, in which it laid out suggested rules for orphan works, including that a "reasonable search" for the owner should limit liability for infringement under copyright law.

"We strongly support an approach to orphan works that would truly remove legal and practical deterrents for good faith re-users to move archival treasures off of dusty shelves and into circulation for the public's benefit," Google lawyer Alex Macgillivray said in a statement Friday to CNET News. "Effective orphan works legislation should provide a clear, 'objective' standard for defining a diligent search, so that users who meet this standard can rest assured of their safe harbor without undue legal uncertainty."

The settlement still needs to receive court approval, and a number of parties may raise concerns with the court over the far-reaching, and somewhat surprising, terms of the settlement. Concerns about public access to orphan works may be of no concern to the court, however. Judge Denny Chin of the Southern District Court of New York is responsible for approving a settlement that is fair to the class that brought forth the suit--not a settlement that meets what some advocacy groups say is a more compelling, broader public interest.

"There's a deep cleverness" to the settlement, said Pamela Samuelson, a professor at the University of California at Berkeley and co-director of the Berkeley Center for Law and Technology. "Google is getting something that no one else can get."

So what does this mean for the future public access of orphan works?

A handful of scenarios could play out that would impact access to the books. Antitrust authorities could intervene in the settlement, or Congress could pass legislation to allow for other mass digitization projects.

Other companies could try to replicate Google's strategy of undertaking a digitization project and working out a settlement. Or the judge could reject the settlement, and Google could press on with its fair use case.

Consumer Watchdog is appealing to the Justice Department on the grounds that the orphan works situation, along with another provision of the settlement, both create barriers for other companies interested in digitization efforts. The group believes the department could potentially ask a court to compel Google to sub-license the orphaned works if the settlement is approved.

Could Congress interfere?
While Consumer Watchdog's Court thinks the Justice Department may be the most likely entity to intervene, he said "if Congress wants to step up, it would certainly level the playing field."

The Orphan Works Act of 2008, as well as its earlier versions, could not have been practically applied to a mass digitization project such as Google's, since it required the user to seek out the rights holder for every work in question.

The Authors Guild, a group representing more than 8,000 authors that was a party in the settlement, said it would likely favor legislation that would give other entities the same access to orphan works as Google will acquire in the settlement.

"It would depend on the details," said Paul Aiken, executive director of the Authors Guild. "There are a lot of things built into the Google agreement, such as security protocols, no-download rules, that protect the rights holders of orphan works."

While there's no indication any such legislation will be introduced, Aiken said it may be more easily pursued, thanks to the settlement.

"We'd have a template for a way that it can work in which rights holders' interests are protected and yet works are made available," he said.

Legislators should wait for authors to come forward, though, to claim their potential earnings from the settlement. He said the number of orphan works has already begun to shrink, thanks to the settlement.

"Eventually you wind up with a group (of books) that really are orphans, even with the incentive of the settlement," he said. "Those are the works that something may have to be done about and probably are the proper subject of legislation."

Google, not surprisingly, strongly supported orphan works legislation in the past.

However, "one has to wonder if they acquire this settlement whether or not this level of interest will continue," said Peter Brantley, the director of access for Internet Archives, a nonprofit founded to build an Internet library, which is opposed to the settlement. (Google on Friday reiterated that it has "long supported and continues to support" such a law.)

"There's a complex mix of renewed interest (in orphan works) but an attenuation of interest in major actors like Google because they got what they want," Brantley said.

Of course, there is the possibility the settlement could be rejected.

"If it were up to me, I'd rather have Google win the fair use case," said Samuelson. "Then other mass digitization efforts could happen. I think they had a pretty good shot at it."

[InklingBooks]

It reads like two people wrote this article. One did the introduction, when seems to portray the criticism as coming "from a handful of critics." A handful is five or less. Since I've long been a vocal critic of what Google is doing, do I constitute fully 20% of the critics in this country? I think not. The rest of the article makes it clear that the number of critics is far greater than that.

There's also this silly remark: "Millions of orphaned works are currently hidden away in library stacks." They're hardly "hidden away." Library databases are readily accessible online, books are easily obtained through Interlibrary loan, and the university libraries that Google wants to digitize are all in a mega-database called WorldCat. I managed to get Yale to loan me a copy of a book that's one of only two copies in the university library collections of the entire world. You can hardly get more orphaned than that.

Then there's the reporter who wrote the rest of the article, someone who explains quite well the objections to a settlement that, like many such settlements, primarily benefits the parties involved, Google and the Author's Guild. Google represents Google's shareholders, and the Author's Guild, we shouldn't forget, represents only a tiny fraction of the nation's writers. Neither represents the great bulk of authors who're the real subject of this dispute and most of those writers don't understand what this complex settlement means.

--Michael W. Perry, author of Untangling Tolkien

[FrancesGrimble]

It is a huge misconception that the Settlement applies only to "orphan works." It applies to every book published before January 2009. Google has digitized 2.5 million in-print, readily available books by locatable publishers and authors. Furthermore, if those copyright holders do not opt out of the entire Settlement, Google can publish those books after Google, not the copyright holder, has declared them to be "not commercially available" for one year. Print-on-demand books can be declared "not commercially available," by criteria that are not defined by the Settlement.

In other words, plenty of authors of recent books who need the income from those books, will hand over a considerable portion of control over those books to Google well within those authors' lifetimes, unless they opt out of the entire Settlement.

[Stufiano]

Honestly, all orphaned works should be turned over the public domain. If one cannot find the author through the telephone, physical address, business contacts or internet, how will they ever find them? This is simply making too complicated -- make orphaned books part of the public domain and be done with it already!

[Lerianis3]

Right in one! They also have to start cutting down on the amount of time that a book can be copyrighted. Lifetime plus 70 years? AS IF! Maybe,maybe....... 10 years, but that's really too long in my opinion. I'd go for 3 years max. If a book hasn't made it's money back in 3 years, it isn't going to and should fall into the public domain and be allowed to be copied to your hearts content.

[gertruded]

I agree that the copyright rules have been made outragous by the lobbying of the copyright holders, for books, for music (RIAA), Patents ( drug companies, software),etc.

We need to rein in these corporate and association interest groups that have so bought the government through campaign contributions.

Their activities are destroying the knowledge base of the country.

[ajhoughton]

Nonsense. The copyright rules are by and large exactly the same as they always were. The only changes that are questionable are the recent DMCA and EUCD changes, and frankly they are *not* as people often assume a good deal for copyright holders. The main benefactors of DMCA and EUCD are ISPs, for whom DMCA and EUCD provide a get-out-of-jail free card, often even if the ISP is directly and knowingly profiting from infringement.

So if you ask copyright holders, I'm certain that they will agree that the current copyright law is outdated and that the legislative changes that have been made so far are a bad thing.

It's a shame that the anti-copyright lobby has been so effective at brainwashing the public over the past few years. All this ridiculous talk of "broken business models" and the supposed unjustice of the RIAA's lawsuit campaign (which, let us not forget, was targetted against some of the most prolific illegal distribution of RIAA artists' work that has ever been seen ? even if you include the figures for commercial piracy). Yes, it's terrible when you see a working mother on a relatively low income being stung for thousands of dollars because her teenager has been busy stealing music. But it's worth pointing out that the morally bankrupt actions of said teenager are nevertheless the fault of the parents, who should be instilling reasonable notions of right and wrong in their offspring, but who have plainly failed in that regard ? nobody can seriously claim that it is "right" to illegally download music without paying the artists.

What is broken is not business models. Copyright law is certainly broken, in that it currently allows large-scale infringement by the public while the companies providing the services that permit ? and even in some cases encourage ? this infringement are protected from any action intended to curb this behaviour, even though at the same time they directly profit from it (and as a result are uncooperative to a degree that frankly beggars belief, if and when a copyright holder complains). And the other thing that is broken is the morality and ethical values held by significant sections of the population. Indeed, it is the same moral bankruptcy that has caused the present financial crisis and the subsequent recession.

[Lerianis3]

Excuse me, ajhoughton, but the carrier do not 'allow' infringement. By their status as a COMMON CARRIER (which means that they CANNOT do peeking into what people are using their lines for without law enforcement asking them to), they have to allow EVERYTHING to go over their lines.

Not to mention, that we are coming to the point where copyright and patents are going to be moot. The world is moving towards 'digital=free' and the companies are just pissing on the Sun trying to put it out.

Secondly, the RIAA's 'crusade' against piracy? They weren't going after true pirates. They were going after mothers, teenagers, children, grandmothers, etc. Not people you want to be suing if you want your rep to be good.
They should just focus on the COMMERCIAL infringers. They are the people who are actually making them lose money, not someone using p2p from their home!
Personally, I don't think using p2p is 'morally bankrupt' in the slightest. I'm of the thinking that p2p is 'try before buy', just like FM radio is!
The courts were also starting to realize that these companies should NOT have been suing these people just because the recording they were sharing are 'high quality' considering that they are offered for free on various radio stations.

The business models of these companies are totallly broken. The CD? Going the way of the dodo, and nothing is going to stop that. DRM? Not acceptable: one purchase, I can put it on as many devices as I own, PERIOD. No argument there!
If these record companies would have EMBRACED the internet and online music selling (with lossless music and 640kbps or higher music).... they wouldn't be having the problems they are having right now.

When the 'morality and ethics' of the large part of the population is 'broken'..... IT AIN'T BROKEN! Society has just decided that the OLD morality and ethics are what is broken and therefore.... MAJORITY WINS! (sing it with me!)

[channelc]

It's absolutely ridiculous that people only look at top-grossing acts and authors and the admittedly evil RIAA when they make judgements on copyright law. For every mega-popstar or best-selling author out there, there are 20,000 bands, acts, writers and photographers whose royalties don't amount to a hill of beans. Every sale counts.

What would you do if your boss gave you a huge project that took you months to do before you got paid, and then when you went to collect your hard-earned pay, he decided that he would only pay you for 45 minutes an hour rather than the hour you worked? C'mon, 15 minutes isn't a big deal. Why would you complain about him just taking 15 minutes away from you? Because it adds up to a significant amount of money you've been cheated out of! And that's exactly the same mentality that hurts every artist, writer and musician.

And, why is it that you think that the vast majority of us that aren't nearly as commercially successful as Britney Spears or Bruce Springsteen don't deserve to get paid AT ALL for the fruits of our labor? As a semi-pro freelance photographer, I make some great money on some of my images. But 98% of my processed portfolio doesn't earn SQUAT. And, I may have to take as many as 200 photos to get one that's worth the effort of processing. So I should pick another line of work, right? What happens to the people who like my work enough to pay for it? What about the people who think that I fill niche that they can't get elsewhere? They're screwed because you think I'm not entitled to receive ANYTHING.

If you like it enough to steal it, PAY FOR IT!

[ralis002]

It seems as if Google is being punished or at least folks are attempting to punish them for creating free resources and content that they make available and accessible at no charge. Content that most would choke at just the the thought of making available the way Google has. But Google has seemed to hold at heart a value that has proven correct. they create value and help others create value that only further yields value to all including themselves. They keep faith in reward.

[janaxelson]

The settlement covers more than "orphan works." It's a class-action, "opt-out" settlement that also covers out-of-print, in-copyright works whose copyright holders are easy to find, unless the rights holder takes action to exclude the work.

In other words, a rights holder who ignores the settlement is a party to it. If you own rights to a book or "insert" published before January 5, 2009, you should become informed about this settlement so you can decide whether to "opt out" by the deadline of May 5.