September 4, 2009 was the deadline by which any oppositions to the Google Book Settlement were to be filed. The hearing is still scheduled to proceed on October 7, 2009, and numerous non-parties to the settlement have requested the Court’s permission to attend the hearing and present their arguments. In a docket entry from September 2, however, Judge Denny Chin’s response to one request to appear appears as follows: “As for permission to speak at the hearing, the Court will address this question in a future order. We need to see how many requests there are to speak.” Authors’ Guild v. Google, Inc., No. 05-8136, Item No. 216 (9/2/09).

There have been numerous opt-out letters filed with the Court, as well as objections and requests for approval of the settlement. In addition to the individual authors or publishers who have filed their objections, numerous other groups have similarly filed seeking outright rejection of the agreement or at least critical modifications:

* Australian Society of Authors (Item Nos. 102, 111 in the Docket)
* A Japanese publishers’ association (Ryutaikyo, Tokyo) (Item No. 116)
* “500 crime writers from Germany, Austria and Switzerland” (SYNDIKAT) (Item No. 119)
* The Federal Republic of Germany (Item No. 179)
* Amazon.com (Item No. 206)
* The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Counsel of America, North American Nature Photography Association and several individuals (Item No. 218)
* DC Comics (Item No. 238)
* Consumer Watchdog (Item Nos. 261, 263)
* Japan P.E.N. Club (Item No. 264)
* Canadian Standards Association (Item No. 272)
* Microsoft Corporation (Item No. 276)
* Connecticut Attorney General Richard Blumenthal (Item No. 278)
* Privacy Authors and Publishers (Item No. 281)
* Open Book Alliance (Item No. 282) – this is a group previously described in the docket as “a coalition of diverse organizations including Amazon.com Inc., The American Society of Journalists and Authors, The Counsel of Literary Magazines and Presses, Microsoft Corporation, The New York Library Association, Small Press Distribution, The Special Libraries Assocaition, and Yahoo! Inc., as well as the Internet Archive.” (Item No. 183)
* The French Republic (Item No. 287)
* Yahoo! Inc. (Item No. 288)
* The Internet Archive (Item No. 291)
* Lyrasis, Inc., Nylink and Bibliographic Center for Research Rocky Mountain, Inc. (Item No. 291)
* Free Software Foundation, Inc. (Item No. 293)
* Proquest LLC (Item No. 296)
* Songwriters’ Guild of America (Item No. 297)

Some have filed their requests for approval of the settlement, or at least registered their agreement with certain provisions or goals of the settlement:

* The American Association of People with Disabilities (AAPD) (Item No. 125)
* The United States Student Association (USSA) (Item No. 138)
* The United States Distance Learning Association (USDLA) (Item No. 139)
* Sony Electronics, Inc. (Item Nos. 148, 274)
* Antitrust Law and Economics Professors (Item No. 275)

** Please note that I have not read each of the submissions in depth – either oppositions or requests for approval – but have relied almost exclusively on the text in each docket entry to determine whether a party opposes or supports the agreement. I would encourage you to read the specific submissions of the parties that are of interest to you before reaching a more substantive conclusion than that they filed a letter, motion, memorandum of law or amicus brief in support or in opposition to the settlement.

Some of the submissions are very emotional and argumentative. Many are written by non-lawyers making arguments using persuasive or rhetorical language. Some have been filed in their native languages without an attached translation. (E.g., Letter from Dr. Else Maria Wischermann, filed in German at Item No. 110).

The recurring themes in these objections are: 1) the potential monopoly created in Google’s favor – at the very least with respect to orphan works, whose rights holders cannot be immediately identified; 2) the lack of any requirement of a reasonable search for the owner of an orphaned work before the scanning and distribution would occur; 3) indeterminate definitions of key terms – including those identifying which works would be covered by the agreement and the Book Rights Registry, and those that would not; 4) the blanket permission for Google to proceed with its scanning and monetizing project unless authors/publishers/other owners opt out; 5) the apparent permission given by an American court for Google to copy/scan/distribute/store digitally the works created and currently owned by foreign authors; and 6) Google’s ability to retain an apparently unreasonably high fee from each work.

Regardless of the pros and cons of the settlement reached in this case, it appears to have raised significant concerns on both sides. It is also clear that the number of parties who have requested permission to present their arguments to the Court during the hearing would be too numerous for the Court to entertain during a single day of argument. Unless the Court decides to extend the hearing over several days, the list of those attending and presenting their arguments orally undoubtedly will be limited.

Given the nature of the oppositions and support received thus far, this promises to be a very interesting hearing. One hopes that the decision the Court eventually reaches will balance effectively the equities of both the public at large (with the interest of being able to access as many creative and educational works as possible) and the copyright holders (who should be able to control the distribution and further use of their works, and be compensated reasonably for those who wish to access them). I look forward to reading the opinion.

As reported previously (Blips in Google’s Book Project Settlement (posted Aug. 26, 2009)), anyone who objects to the settlement reached in the Authors’ Guild must file their objections no later than September 4, 2009. The hearing on the settlement is currently scheduled for October 7, 2009 and would presumably consider any objections filed before the deadline.

Since the prior posting, a number of things have occurred:

* The Open Book Alliance released a statement on August 26, 2009, explaining its objection to the settlement as opposition to the potential monopolization and exclusive control by the proposed Book Registry over public access to any of the books scanned into the database. Their site has an interesting collection of resources about public objection to the Google Book Settlement.

* The German Government filed its objection on August 31, 2009, claiming that the Authors’ Guild did not represent the interests of German authors, publishers, digital libraries or citizens. (See Diane Bartz, “Germany: Google book deal violates copyright law,” Reuters, Sept. 1, 2009).

* Amazon filed its objection on September 1, 2009, claiming that the settlement will vest in Google a monopoly power in being the sole provider of digital book distribution with respect to the works included in the digital database. See Jessica E. Vascellaro and Geoffrey A. Fowler, “Amazon Objects to Google’s Books Pact,” The Wall Street Journal, Sept. 3, 2009. Moreover, in the case of works still protected by Copyright Law, but where the owner of the rights is unknown (also called “Orphan Works”), the settlement would give Google the exclusive distribution right. Since there would be no identified owner of the rights in the Book Rights Registry, presumably, Google would not have to share the revenues that it earns in connection with the Orphan Works it distributes.

* The Department of Justice’s brief opposing the settlement is currently due on September 18, 2009. See Nathan Pollard, “DOJ Opens Antitrust Investigation Into Google Book Settlement Deal,” 78 Patent, Trademark & Copyright Journal 288, July 10, 2009. In his July 2, 2009 letter to the Court, Deputy Assistant Attorney General William Cavanaugh advised that the U.S. had “opened an antitrust investigation into the proposed settlement . . . ” and had reviewed various “public comments expressing concern that aspects of the settlement agreement may violate the Sherman Act.” (Access to the links in this paragraph may be limited to BNA subscribers. Once the docket becomes available again – see below – I will try to replace what I can with publicly-accessible sources.)

* On a related topic: Europeana (a multilingual digital library collection launched by the European Commission in November 2008) has now completed the digitization of 4.6 million books, maps, photographs, film clips and newspapers in its collection, according to an August 28, 2009 press release. See European Commission’s Press Pack on Europeana.

Docket Presently Unavailable

Note that each of the objections identified in this post should be available not only through the news reports cited above, but also listed in the docket report for the Authors’ Guild v. Google case (No. 05-8136, SDNY). Unfortunately, access to the court’s electronic filing system (and presumably the public docket) has been interrupted since September 3 – and will continue to be offline until Tuesday morning (8am), September 8 – due to a scheduled system upgrade. See Notice to the Bar, Aug. 28, 2009.

Since any objections to this settlement are due to be filed no later than September 4 (today), one wonders whether many counsel for potential objectors in this case had difficulty filing their objections — or even were prevented from filing them — due solely to practical concerns.

Once access has been restored, I will try to provide links to the various filings and provide any updates/corrections that result from full access to the docket.

It appears that the settlement reached over the Google Book Project may not be as much of a “done deal” as previously thought. Indeed, it is being challenged by several competitors in the digital book industry who wish to see certain revisions put into place before the Court approves the terms. See Jessica E. Vascellaro & Geoffrey A. Fowler, “Tech’s Heavyweights Put Google’s Books Deal In Crosshairs,” Wall Street Journal, Aug. 21, 2009, at B1.

It is also being investigated by the Department of Justice as a potential antitrust violation. See Jessica E. Vascellaro, “Facing Scrutiny, Google Steps Up Lobbying,” WSJ Digits Blog, July 22, 2009; see also “The Google Books Project: An Antitrust Case in the Making?,” WSJ Law Blog, July 24, 2009.

The European Commission has scheduled a hearing on September 7, 2009 to consider “the effect of the Google Book US Settlement Agreement on the European publishing sector, European authors, European consumers and society at large.” See also Reuters, EU sets hearing over Google books deal, July 20, 2009; Jessica E. Vascellaro, “EU Calls Google Books Hearing, House Ponders One,” WSJ’s Digits Blog, July 20, 2009.

There are definitely upsides to a digitizing project of this nature – public access to out-of-print works (whether still protected by copyright or not) could be a great thing. These books might not be available at your local library, and indeed you might not find out about them through your normal channels of research. If they are out of print, you might have a hard time finding them through used-book sellers or online retailers – assuming you knew to try to find them. Making these books available to the public again, along with the ability to have these books appear in search results relevant to the content of these books, would provide a great social benefit. See also William Echikson, Opinion Europe: “Reviving Lost Books,” Wall Street Journal, July 21, 2009; Philippe Colombet, “Sharing Public Domain Books,” Inside Google Books Blog, Aug. 18, 2009.

The downsides are significant, however, and should not be ignored. Principally among them is the possibility that copyright holders’ rights would be completely disregarded, eliminating their ability to control the creation of derivative works (such as a digital copy of a book previously available only in print) and the further distribution of their works. The settlement attempts to address these copyright concerns, but has yet to be approved by the Court. The Authors’ Guild Complaint makes the case for the “downsides” rather clearly. See Authors’ Guild v. Google, No. 05 CV 8136 (SDNY).

The Court apparently has rescheduled the hearing to review the settlement for October 7, 2009. See Google Book Settlement FAQs (noting that the hearing was originally scheduled for June 11, 2009). It will be very interesting to see whether the Court approves the settlement and/or whether the fair market system and pure competition will intervene to provide alternate means to access this information without having to rely solely on Google.

Background

Google originally proposed to undertake the Google Print Project (including the section now called the Google Book Project) without seeking permission from individual copyright holders, or arranging for any payment of royalties, citing the public’s keen interest in having rare and typically unavailable books digitized and accessible. In public statements – including ones made during a panel discussion before the ABA’s Intellectual Property Law Section in April 2006 – Google defended its decision to structure the plan as an “Opt Out” plan (requiring the publishers and authors to make the affirmative step to withdraw from the program, instead of seeking their permission/participation in advance) based on the significant cost involved in trying to locate in the individual rights holders and obtain their agreements to participate. For a competing viewpoint, however, see “Googling Copyrights,” Wall Street Journal, Oct. 3, 2005, at A16 (“Getting permission from all the rights-holders for such an ambitious undertaking would undoubtedly be time-consuming and bothersome, but no one said that storing and making money off someone else’s copyrighted material was or should be easy.”).

The Authors’ Guild Lawsuit

On September 20, 2005, The Authors’ Guild filed a lawsuit against Google, attempting to block Google’s efforts to launch its Library Project. Authors’ Guild v. Google, No. 05 CV 8136 (SDNY)(“Compl.”). According to the Complaint, a subset of this Project was the Print Project. Compl. ¶ 19. (This is the component now known as the Google Book Project.)

The Authors’ Guild alleged that Google was engaged in willful, “massive” copyright infringement [Compl. ¶¶ 3, 5] and sought damages, injunctive relief and declaratory relief with respect to the infringement that Google had performed prior to the filing of the suit, and declaratory and injunctive relief for “planned unauthorized commercial use of the Works” going forward after the suit was initiated. Id. ¶ 6. The commercial use at issue here was Google’s offering of advertising space on search result pages for a fee to commercial entities, while providing the search engine itself for free to Internet users. Id. ¶ 16. Thus, Google would benefit from the use of the copyrighted text through advertising revenue, but did not plan to pay copyright owners for its use of the copyrighted text. (98% of Google’s earnings at the time apparently were made up by advertising revenue. Id. ¶ 17.)

Note that the “use” at issue in the Complaint was not only providing certain amounts of text in search results to users of Google’s search tools, but also to the scanning, OCR’ing, and maintaining the full text in its database to be searched using Google’s search engine. See id. ¶ 31; see also Opinion, “Googling Copyrights,” Wall Street Journal, Oct. 3, 2005, at A16 (“But the mere activity of digitizing and storing millions of books – many thousands of them under copyright – without buying any of them raises a serious legal question, regardless of how much of that content Google later makes available at any one time or to any one user.”). The first use of the text would be visible to the public – the second would not be, but nonetheless provides value to Google. Indeed, if Google did not have the full text copied into its database, it would not be able to identify this text as being relevant in response to a search request made by a user of the search engine. As a result, the copyrighted book would not have appeared in the search results if Google had not copied the entire text into its database.

By the time the Complaint was filed, Google had entered into contracts with University of Michigan (subject of the suit) [Compl. ¶ 23a] and Harvard, Oxford, Stanford and N.Y. Public Library (scanning had not started at the time of the filing of the Complaint, but these libraries were the subjects of the requested injunction) to digitize all books in their collections – both works in the public domain and those still protected by U.S. copyright law. Id. ¶ 32. By now, however, Google’s list of library partners has greatly expanded: Google’s site presently lists several foreign libraries as well as a few additional American ones: specifically, Columbia University, Cornell University Library, Princeton, University of California, University of Texas at Austin, University of Virginia, and University of Wisconsin – Madison.

The Settlement

On October 28, 2008, the Author’s Guild reached a settlement with Google over Google’s plans to digitize entire library collections – regardless of whether the books were still protected by copyright or had fallen into the public domain. (The Publishers also reached a settlement of their case, The McGraw-Hill Companies, Inc. v. Google Inc., 05 Civ. 8881 (JES), filed on October 19, 2005 and alleging similar allegations; their settlement agreement appears as Attachment M to the Author’s Guild Settlement Agreement.)

In connection with the settlement, the parties issued a Notice announcing the settlement. The Authors’ Guild also summarized the terms of the settlement and provided a summary of the “benefits” of the settlement relating to out-of-print books. The Settlement Administration Web Site describes the impact of the settlement on various rights holders and provides copies of the relevant filings and instructions to copyright holders of “books and in writings included in books and other works published on or before January 5, 2009” about how to participate in the settlement. Rights holders can file their claims through the site as well.

Google published its own summary of the terms of the settlement, calling it a “groundbreaking agreement with authors and publishers.”

Missing from the Settlement – Addressing Privacy Concerns

On July 27, 2009, the Center for Democracy and Technology (a public interest group focused on the Internet) released its recommendations for incorporating privacy protections into the Book Registry and the search engine that it recommends Google implement when it puts the settlement into practice. See CDT’s Report on Google Book Service.

The report recognizes that the Settlement addressed only issues of copyright and appropriate compensation/attribution to the rights holders and does not address any concerns of privacy of those people who may be using the search engine to find relevant books. However, now that the Settlement may be on the verge of finalization, thereby implementing procedures by which information about the public’s use of the database could be captured, it is critical to ensure that only the minimal necessary information is collected about users. While the technology exists to permit Google to collect substantial personal information about users (and the other sites they visit, the books they have searched and/or read online, the books they have purchased through other sites, etc.), restrictions should be put into place to protect individuals’ privacy rights.

The report is particularly illuminating and well-written. It provides an alternate view (very carefully researched and written) to the basic concept that having these works accessible in digital form to anyone around the world, without regard to whether the local library owns a printed copy, is priceless. Access is not the only consideration; privacy for those seeking to use this new medium should be protected as well.

Additional Links of Interest

Jonathan Band, “The Google Print Library Project: A Copyright Analysis,” E-Commerce Law & Policy (August 2005) at 2

“Authors Sue Google, Challenging Use of Works in Google Library,” BNA’s Patent Trademark & Copyright Journal, Sept, 23, 2005

The Authors’ Guild Google Book Settlement Resources

Google’s Legal Perspectives’ Site

Google’s Tips on Improving Search Results – how to maximize the search results using Google’s tools

The Official Settlement Site

Wikipedia’s Chronology regarding Google Book Project