Opting out rejected, Opting in suggested

March 22, 2011 3:58 PM

Only weeks after Judge Denny Chin extended the filing deadline, and presumably a final decision, and reflecting the Department of Justice’s own opinion, the 2nd Circuit Court of Appeals has rejected the landmark class-action lawsuit settlement between the Authors Guild, the Association of American Publishers, and Google. And offers some advice for a revised resubmission.
posted by Toekneesan (22 comments total)

All right you pesky orphans, back to the orphanage for the lot of you.
posted by Toekneesan at 3:59 PM on March 22, 2011 [2 favorites]

Some excellent analysis from Mefi's own Grimmelm on his twitter feed.
posted by Toekneesan at 4:07 PM on March 22, 2011

Judge Chin is a district court judge - this has not yet been heard by the 2nd Circuit appeals court. Kind of surprised the WSJ got that wrong.
posted by MLR0608 at 4:25 PM on March 22, 2011

No, Chin is a circuit judge but the case is at the district level. Sometimes circuit judges are assigned district court cases (an example of the once-common practice of "riding circuit"), and sometimes district court judges sit on appellate panels (called "sitting by designation").
posted by jedicus at 4:31 PM on March 22, 2011

Ah I see I got this one slightly wrong. Chin was assigned the settlement case before he was appointed to the circuit court. The other parts are accurate.
posted by jedicus at 4:32 PM on March 22, 2011

Well I definitely got it wrong. And I used to know better.
posted by Toekneesan at 4:36 PM on March 22, 2011

I realize that for people who love information and books, the ASA was deeply flawed, but it seemed like it was the best we were going to get without comprehensive copyright reform to eliminate the problem of orphaned works (and loosen up the insane restrictions imposed by some content owners).
posted by klangklangston at 4:38 PM on March 22, 2011 [1 favorite]

Yes, the opinion is signed by him, "Sitting by Designation", in fact. Presumably the complexity of the case meant it was impractical to reassign. In any case, this remains a District Court decision.

... and the WSJ has already revised the text of their article to remove any reference to his Appeals Court role. That was fast.
posted by dhartung at 4:40 PM on March 22, 2011

Maybe they read the blue.
posted by Toekneesan at 5:02 PM on March 22, 2011

Google is building something between a modern Library of Alexandria and the Foundation, and the success of the proect hinges on the (completely fucked) US copyright law and it's giant orphaned works blind spot...
posted by kaibutsu at 5:11 PM on March 22, 2011 [4 favorites]

If this is opt-in only, I can't see any point to Google continuing. They might keep this up, but it rather guts the whole point of what they were trying to accomplish. They'd probably get better terms with each author or publisher the same way Apple or Amazon do; by crushing them one at a time.

Goes to show that trying to rewrite public policy by extra-political means is (still) a loser.
posted by bonehead at 5:12 PM on March 22, 2011

What bonehead said. Reminds me of Lawrence Lessig's naive and ultimately mistaken belief that he could get the Supreme Court to overturn Congressional extension of copyright period. Just because starry-eyed digirati think something is a good idea doesn't mean that others agree, including our designated interpreters of the Constitution and laws.
posted by twsf at 7:00 PM on March 22, 2011

Google is building something between a modern Library of Alexandria and the Foundation, and the success of the proect hinges on the (completely fucked) US copyright law and it's giant orphaned works blind spot...

So, because corporations have destroyed reasonable copyright law in the name of higher profits you think the solution is two parties who have no rights to the works in question should be able to create some magic monopoly and profit from that?

Here's a better idea, maybe companies like Google should use some political clout to reform the broken copyright system in a way the benefits everyone.
posted by aspo at 8:18 PM on March 22, 2011 [4 favorites]

What bonehead said. Reminds me of Lawrence Lessig's naive and ultimately mistaken belief that he could get the Supreme Court to overturn Congressional extension of copyright period. Just because starry-eyed digirati think something is a good idea doesn't mean that others agree, including our designated interpreters of the Constitution and laws.

Eldred wasn't such a ridiculous case. The Supreme Court doesn't agree to hear ridiculous cases. The Constitution says that Congress gets to grant copyrights and patents "for limited times." Lessig was merely asking whether repeated retroactive extensions still count as "limited times." The answer is that, apparently, they do. It's really not an unreasonable point to ask for clarification on.

Taking Eldred to the Supreme Court was certainly no more naive than asking the Court to overturn school segregation, affirm the right to contraceptives or an abortion, invalidate campaign finance laws, give lawyers to all who cannot afford them, ban officially sanctioned prayer ceremonies at public school graduations, or any other longshot Supreme Court case.
posted by zachlipton at 10:28 PM on March 22, 2011 [1 favorite]

What bonehead said. Reminds me of Lawrence Lessig's naive and ultimately mistaken belief that he could get the Supreme Court to overturn Congressional extension of copyright period. Just because starry-eyed digirati think something is a good idea doesn't mean that others agree, including our designated interpreters of the Constitution and laws.

After reading Lessing's "Free Culture," I walked away with the impression that he was offering a mea culpa. I'm not a big fan of his work, but to his credit he outlines his mistakes in how he guided the case along the way.

Nevertheless, I think he saw the problem as the judicial system not being able to adjust to the rapidly changing nature of publications/information. Perhaps this suggests that the courts will always be trailing behind?
posted by mrglitch at 12:01 AM on March 23, 2011

So, because corporations have destroyed reasonable copyright law in the name of higher profits you think the solution is two parties who have no rights to the works in question should be able to create some magic monopoly and profit from that?

I get the sense that we're in violent agreement here...

There's certainly a great need for change in US copyright law. Google was (perhaps misguidedly) trying to establish an opt-out approach to copyright in order to get around some of the problems in the current legal system, and in fact establish precedent which would change the way the law is applied. It's just a different direction of attack than taking on the Disney lobbyists head on.

I also don't believe that, if the approach were successful, that we'd be seeing a google monopoly. The deals with the publishers can be re-created by another entity. And more importantly, the stack of orphaned works - since google doesn't hold the copyright - wouldn't belong to them any more than anyone else. It likely wouldn't be easy, but it would be possible for someone else to start up a Second Foundation...

I absolutely understand the judge's unwillingness to allow an opt-out procedure, because then any old schmo could claim that their hard-drive full of movies was simply waiting to receive the opt-out letters back from the MPAA...

I think my ideal copyright fix would be a finite term, like, say 15 years past the death of the creator, followed by yearly renewals with a fee increasing exponentially. $1 for the 16th year, $2 for the 17th, $4 for the 18th, and so on. The transition would be interesting (and generate a good pile of revenue for the federal government over the first ten or twenty years), but we would end up with a rehabilitated public domain.
posted by kaibutsu at 1:03 AM on March 23, 2011 [2 favorites]

What bonehead said. Reminds me of Lawrence Lessig's naive and ultimately mistaken belief that he could get the Supreme Court to overturn Congressional extension of copyright period. Just because starry-eyed digirati think something is a good idea doesn't mean that others agree, including our designated interpreters of the Constitution and laws.

Lessig said before the case that he didn't expect to win. I don't really see what you think the problem is. No one lost anything because of the case, what's the problem? It helped raise awareness and it will be harder for congress to extend copyrights again.

The Google books settlement is ridiculous. Why should Google, have rights that aren't granted to anyone else, without negotiating the rights with the actual copyright owners? I mean how can you make a deal with author A and his lawyers that applies to every other author?

At the same time I don't really understand the argument allowing indexing and excerpting without permission. Without that right, search engines like Google wouldn't have ever been possible in the first place.
posted by delmoi at 2:11 AM on March 23, 2011 [1 favorite]

At the same time I don't really understand the argument allowing indexing and excerpting without permission.

It would be trivial for Google to implement a "generifier" that translated excerpts into similar text with identical meaning. Then Google would be paraphrasing, which is protected.

[run through Google Generifier]

It would be easy for Google to put into action a "generifier" that changed selected words into similar text with the exact same meaning. Then Google would be rehashing, which is shielded.
posted by Civil_Disobedient at 5:22 AM on March 23, 2011 [2 favorites]

Repost of my ddouble (pardon, Toekneesan):

Federal Judge Denny Chin ended a thirteen month consideration of Google Book's Settlement offer by rejecting it, saying it would give the company a “de facto monopoly.” [more inside]
_____________________________________

Publishers Weekly said it was a “stunning” turnaround of expectations. Chin was “troubled by the high number of people — 6,800 — who opted out of the agreement.” PW cites New York Law School professor James Grimmelmann, who said Chin “was clearly swayed by what he saw as a broad base of opposition to the settlement from a diverse group of class members.” As a New York Times report by Miguel Helft summarized “Google’s ambition to create the world’s largest digital library and bookstore has run into the reality of a 300-year-old legal concept: copyright.” On the subject of orphan works, Chin says that Congress, not Google, would be better suited to decide on a mechanism for exploiting unclaimed books.

A Financial Times report says Google released a statement saying, “This is clearly disappointing, but we’ll review the court’s decision and consider our options. Like many others, we believe this agreement has the potential to open-up access to millions of books that are currently hard to find in the US today.” The case has been going since 2005, when Google was sued for copyright infringement for scanning books without permission. What next? Most likely Google will appeal with a new settlement offer, considering it has already scanned - illegally under current law - around 12 million books.

posted by stbalbach at 9:58 AM on March 23, 2011

Hooray. I wrote a long essay about how Google should not be allowed to become an ad hoc copyright registrar as well as profiting from works licensed under that copyright. This has a built in incentive for corruption. Already Google is profiting from Copyfraud, aiding and abetting small "publishers" that illegally assert copyrights over public domain materials.

There is already a mechanism established for indexing copyrights, the US Copyright Office. It has Constitutionally mandated authority and direct government oversight, unlike Google. If Google wants to rework the copyright administration system, maybe they should be paying the US Copyright Office to do it, rather than just making up their own lists of orphaned books that they can profit by publishing.
posted by charlie don't surf at 11:36 AM on March 23, 2011 [1 favorite]

Well, it's a big win for eBay...
posted by Artw at 12:01 PM on March 23, 2011

Lessig said before the case that he didn't expect to win. I don't really see what you think the problem is. No one lost anything because of the case, what's the problem? It helped raise awareness and it will be harder for congress to extend copyrights again.

I disagree. Precedence in law is everything -- sometimes progressive groups don't push to overturn conservative rulings (and vice versa) because they know they have to wait for a turnover in the membership of SCOTUS. I don't want to go too far off-topic here (as I'm a newbie), but the Citizens United decision has already set open campaigns back into the dark ages. Conservative forces pushed the case because they knew with this court they'd likely get a favorable outcome.

I also don't believe that, if the approach were successful, that we'd be seeing a google monopoly.

Google would definitely be in the lead - far ahead of the pack. It cost them over a billion dollars to pull this thing off, and even though the Open Content Alliance has made their own efforts, it's nowhere near as efficient, advanced or advocated by the libraries. The barriers to entry are enormous.

I think the hope is actually in APIs - whether rogue or legitimate. Once developers find ways to start targeting Google's content, Google will have to start cutting deals to ensure their profitability (or just acquire like crazy). It's not just about advertising, it's also about customization.
posted by mrglitch at 3:02 PM on March 23, 2011