legal neepery of interest only to copyright holders and their publishers

January 21, 2010 8:13 PM

The Amended Settlement filed in Authors Guild v. Google creates a non-profit Book Rights Registry governed by authors and publishers to oversee the settlement on their behalf. A Fairness Hearing has been scheduled for February 18, 2010; authors have until January 28, 2010 to opt out of the agreement. The SFWA is objecting to (among other things) Google's potential monopoly, to the opt-out clause, and to leaving the fair use dispute (pdf) unresolved. The ALA, ARL and ACRL have some similar concerns (pdf) and have released a Guide for the Perplexed (pdf). The NWU opposes it; so does the ASJA. (previously, previously).
posted by joannemerriam (49 comments total)

Theft of copyright? Well, lemme say—as a content producer—that the current terms of copyright are a theft from the public domain. BB raises good points about monopoly, but it's only really a monopoly because Google was the only entity that made this happen. In my utopia, it'd be the government and we'd all pay taxes to have access to this amazing archive of out-of-print and orphaned books (as well as all the stuff in the public domain), but as our country has stopped generally striving for public, common greatness and has instead decided that private interests will provide all for every individual, I gotta take what I can get.
posted by klangklangston at 8:44 PM on January 21, 2010 [10 favorites]

Klang - let me gues, unpublished poet?
posted by Artw at 9:36 PM on January 21, 2010 [1 favorite]

The NWU opposes it; so does the ASJA. (previously, previously).

Well, can't those groups go ahead and sue on their own? Theoretically, anyone with a book in Google can file their own lawsuit.

Anyway, these people are ridiculous. It's like Viacom trying to sue Youtube for a billion dollars. It's not a violation of your copyright to let other people host content somewhere. If it was up to the entertainment/publishing industry sites like Youtube, Veimo, Flickr and so on couldn't even exist because they could potentially be used to infringe copyright.

As far as the book thing, making it illegal to scan every book because you might theoretically own the copyright for it is insane.
posted by delmoi at 9:41 PM on January 21, 2010

Charles Stross: The monetization paradox (or why Google is not my friend)
posted by Artw at 9:41 PM on January 21, 2010 [2 favorites]

As a reader, I have to say that I like this idea. Google has the potential to be a world library and really, some sort of compulsory license is the only way to do that.

As an academic author, I'm explicitly excluded from the settlement. Most of my work is explictly licensed to one publisher, and I don't think it can be transferred. I don't own copyright on my own publications anyway, my employer does. It will be interesting to see how Google handles conference proceedings containing works with Crown copyright, for example.

And what happens to license fees for authors who can't be found? Those fund will accumulate and rapidly, if experience with similar institutions is any guide.
posted by bonehead at 9:44 PM on January 21, 2010

Next week is fraught with perils regarding books in electronic formats. Not only is the curtain being drawn by Google, but next week's expected announcement of the Apple Tablet has everyone in publishing sitting at the table trying to hash out just how the hell the money is going to work.

On the one hand, publishers are very glad that they now get to choose more than one online retailer. (And it scares Amazon enough for them to suddenly have done this two days ago.) On the other hand, Google still has them pretty scared.

E-book sales currently consist of a very small percentage of overall book sales, but everyone knows this is where the future is heading. Barnes & Noble knows it'll need to be able to transition from a big box retailer. (Hello Nook!) Authors know they need to pay attention to their rights. Agents know that they need to stake a claim on e-book royalties that won't screw over their authors. Publishers know they need to find a way to keep all of these parties happy while still continuing to make the kind of cash they rake in from hardcover sales.

It's pretty insane. These are relatively small decisions that will mean everything ten years from now. The precedents for all of these relationships, and the e-book market for years to come, are going to be set next week.

If you know someone in the industry, buy them a drink next Friday, eh?
posted by greenland at 10:05 PM on January 21, 2010 [3 favorites]

(And it scares Amazon enough for them to suddenly have done this two days ago.)

And they now have an Kindle application kit for developers (finally).
posted by Blazecock Pileon at 10:26 PM on January 21, 2010

greenland, Google won't be settled next week. Even if they were given the green light there would be years of counter-suits, until it reached the Supreme Court.
posted by stbalbach at 10:32 PM on January 21, 2010

"Klang - let me gues, unpublished poet?"

Nope. Freelance writer, mostly journalism. But ever since that NYT lawsuit in the early 2000s, pretty much everyone I've sold work to has had explicit rights-trapping contract language. I can reprint on my own, but their "first exclusive" also includes unlimited reprints in every media they can think of (and often includes the clause about all the possible media formats yet to be invented). From talking to other folks in the field, it seems pretty well standard, especially for any sort of web-primary writing.

What little I've had appear in books, well, I can't even find my copies, so if Google decides to digitize it, my only complaints will be that someone might read it. I realize that I don't speak for all content producers, as the stuff I make money from is either tied to timeliness or to client specifications (grants, research), not residual payments.

But hey, thanks for taking a niggling dig instead of talking about the article, Art. Stay classy.
posted by klangklangston at 10:45 PM on January 21, 2010 [1 favorite]

Hey, you go saying how copyright is a theft from the public domain and should therefore be dismantled to the detriment of everyone who currently makes money from it, which would even include people producing work-for-hire and the like, and back this up by implying you have some big stake in it, that big stake better be real. You better not be some bitter has-been or never was with a chip on their shoulder. Because, yes, if you are damn right people will take digs at you.
posted by Artw at 11:17 PM on January 21, 2010

He said the current terms. I really don't think copyright existing 75 years after the death of the author takes much away from writers, unless there is a thriving zombie publishing subculture I haven't heard of.
posted by zabuni at 12:23 AM on January 22, 2010 [1 favorite]

So, if the Chinese take Google's code to use, that's bad, but if Google makes money by taking your book, that's good?
posted by rodgerd at 1:23 AM on January 22, 2010 [1 favorite]

So, if the Chinese take Google's code to use, that's bad, but if Google makes money by taking your book, that's good?

I will not take the thing from your hand.
posted by Skorgu at 4:02 AM on January 22, 2010

but as our country has stopped generally striving for public, common greatness and has instead decided that private interests will provide all for every individual

This exact sentiment spawn this marginally-related comment. I'm tired of public trusts held by private interests.
posted by DU at 4:19 AM on January 22, 2010

Makes me wonder if there have been any efforts from authors to have their books removed from brick-and-mortar libraries.
posted by shemko at 5:07 AM on January 22, 2010

As far as the book thing, making it illegal to scan every book because you might theoretically own the copyright for it is insane.
posted by delmoi at 11:41 PM on January 21
I think this is a misunderstanding of what happened here. It's already illegal to scan (reproduce) an in-copyright book without the copyright holder's permission. The Authors Guild sued them on behalf of their members (real people whose work had been identifiably infringed), not theoretical people. The settlement would allow Google to continue scanning books but now they have to pay the copyright holder a portion of the profit they receive from their work. The issue most writers groups have with the settlement is its specific terms and language, not its existence.

It sounds like you would approve, so you should opt in to the agreement by January 28. (IANAL and this is not legal advice.)

Personally, even though I think this settlement is flawed (mostly for the reasons laid out by SFWA), I'm probably going to opt in because that way I'm involved, and the Book Rights Registry has a mechanism for refusing Google permission to display specific works, which gives me more control. Other writers of course feel differently.
posted by joannemerriam at 5:12 AM on January 22, 2010

Is this just about Google scanning stuff then showing snippets when people do searches, and claiming that it fair use? Some people seem to be acting like they are providing books for free online.
posted by smackfu at 5:54 AM on January 22, 2010

And they now have an Kindle application kit for developers (finally).

Interesting. But more walled-garden bullshit:

Voice over IP functionality, advertising, offensive materials, collection of customer information without express customer knowledge and consent, or usage of the Amazon or Kindle brand in any way are not allowed. In addition, active content must meet all Amazon technical requirements, not be a generic reader, and not contain malicious code.
We will work to refine the above guidelines throughout the beta.

I can certainly understand how that works given their business model. Free wireless for life means they have to make money on content. They even charge you to read RSS feeds. But it's just more encroachment of the "Walled garden/Entertainment device" style of gadget that encroaches on the free Internet. How long before some people don't even have regular computers. I see random people go on about how they don't even use a computer, just an iPhone (a controlled device). I find it deeply problematic.
posted by delmoi at 6:00 AM on January 22, 2010

The free internet that you pay for every month.
posted by smackfu at 6:02 AM on January 22, 2010

Of course you meant the other free, it's early. But still, if someone is giving you a free service and putting limits on it, that's nothing new.
posted by smackfu at 6:03 AM on January 22, 2010

Is this just about Google scanning stuff then showing snippets when people do searches, and claiming that it fair use? Some people seem to be acting like they are providing books for free online.

I understood the issue is that there are now a load of books sitting in Google servers. They went ahead and scanned a bunch of libraries, then layed out this content distribution system, promising returns for publishers and authors.

And i think the authors, or people on behalf of them, whose work was scanned thought that they should be involved more.

And all this disagreement of clauses and terms is what happens when two massive bodies 'get together' to work on something jointly.

(This is my guess at what has been going on, not a factual summary)
posted by deticxe at 6:07 AM on January 22, 2010

Robert Darnton has written some interesting articles on this issue.

Thanks for posting this.
posted by cog_nate at 7:33 AM on January 22, 2010

"Hey, you go saying how copyright is a theft from the public domain and should therefore be dismantled to the detriment of everyone who currently makes money from it, which would even include people producing work-for-hire and the like, and back this up by implying you have some big stake in it, that big stake better be real. You better not be some bitter has-been or never was with a chip on their shoulder. Because, yes, if you are damn right people will take digs at you."

That's not what I said, Art. What I said was that the current terms of copyright were a theft from the public domain. Are you so stupid that you can only see that as copyright "should therefore be dismantled" because I'm a bitter hack? I mean, seriously, are you that dense? Because it sure seems like you're the one who has the chip on his shoulder—going out of your way to insult me, ignoring what I wrote in favor of a wrong and simplistic interpretation—and that likely, you haven't even read the linked material. If you had, you might find more to comment on than your vision of my career.
posted by klangklangston at 7:54 AM on January 22, 2010

Fight! Fight!
posted by smackfu at 8:01 AM on January 22, 2010

One reason to be concerned about this is the monopoly that Google will have on so-called orphaned works. With that monopoly, Google can pretty much determine what it will cost to access that content electronically. Sure, you'll get your snippet for free, maybe even a few pages, but access to the whole text will have a cost and that cost is determined by a company with a monopoly on that content. That should concern you. This settlement only protects Google concerning the use of orphaned works. It will be very difficult for anyone to compete with them without similar protection. Since most guesses are that 60 to 80 percent of what Google is scanning would fall under the rubric of orphaned work, it could mean that a substantial number of books will only be available in electronic format from one company.

This is not just a publisher/author issue. This settlement will have a significant effect on readers too.

The other concern readers should be aware of is section 3.7 (e) of the settlement that allows Google to choose what will be available and why. Many think there is potential for censorship with this clause.

This is indeed an ambitious project that will no doubt have a lasting and profound effect on how we use books, but does it really make sense to allow a single company the right to choose what we read and how much it will cost?
posted by Toekneesan at 8:06 AM on January 22, 2010

How can Google have a monopoly on content that they don't own where the copyright is unclear? Couldn't someone else check out the library book and scan it?
posted by smackfu at 8:08 AM on January 22, 2010

Probably not legally. What Google is doing is considered by most copyright scholars to be illegal and the settlement will retroactively exempt them from liability.
posted by Toekneesan at 9:16 AM on January 22, 2010

Artw: Hey, you go saying how copyright is a theft from the public domain and should therefore be dismantled to the detriment of everyone who currently makes money from it, which would even include people producing work-for-hire and the like, and back this up by implying you have some big stake in it, that big stake better be real. You better not be some bitter has-been or never was with a chip on their shoulder. Because, yes, if you are damn right people will take digs at you.

I have to prove my bonafides before talking about copyright online now? I sooooo missed that memo :) Anyway, here are my papers: I'm a debut novelist with a book coming out this May in Iceland with a mainstream publisher and I've had poetry published in magazines that pay for it.

Current copyright laws are kinda crazy. I'm fine with works being in copyright in the lifetime of the author but the ever-extending post-death copyright is absurd. To take one example, it's ridiculous that The Great Gatsby is still in copyright in the US (public domain in Australia and Canada), more than 80 years since it was published and long after Fitzgerald's daughter is dead. That is infringing on the public domain.

As to the Google Books Settlement, well, it doesn't affect me directly and to be honest I don't really care. It's not especially a goal of mine to live off writing. My long term goal as a novelist is to write 12 novels in my lifetime (1 down!) and have them read by as wide a readership as possible. Business conditions will change drastically over my lifetime and I don't really see how it would be of any use to me to worry how these changes will occur. Maybe in 20 years I will get less per book sold, maybe I won't. Maybe the current publishing house model will be obsolete, maybe something else will have replaced it. All this will have an effect on my profit but it doesn't profit me as an artist to think too much about it. I don't have a right to live off my art, though I'd quite like that to happen. Anyway, who knows what will happen at the fairness hearing, and the European Union will weigh in at some point and it's gonna be a mess for ages. I'll still keep writing whatever happens.
posted by Kattullus at 9:36 AM on January 22, 2010

(Congratulations, Katullus! Post something on MetaTalk or something when it comes out. Projects?)
posted by msalt at 10:34 AM on January 22, 2010

(Thanks. I translated a chapter from the novel and it was published in a webzine but I've never gotten around to making a Projects post. I should get on that actually.)
posted by Kattullus at 10:39 AM on January 22, 2010

Probably not legally. What Google is doing is considered by most copyright scholars to be illegal and the settlement will retroactively exempt them from liability.

But nothing in their settlement prevents the Author's Guild from making the same agreement with someone else. If there is money to be made, another company Will make that deal, or, as happened with the online music industry, better deals, because the gateway for negotiation was already opened.
posted by nomisxid at 2:14 PM on January 22, 2010

The difference between this and what happened with the music industry is that Apple and Amazon knew who to negotiate with to sell their mp3s—the labels. In this case the books in question are in legal limbo. They're called orphans because it is unclear who owns the rights. The Author's Guild isn't empowered to negotiate with everyone, only the company they sued, Google. Google will be the only company in the world protected from a lawsuit as a result of this settlement. Read those links above, especially those written by Harvard's Librarian, Robert Darnton. After reading those you'll see why this isn't really like napster. As Darnton points out, what is usually done with legislation (and should be done with legislation) is being done with the settlement of a lawsuit, to the benefit of only one company.
posted by Toekneesan at 3:06 PM on January 22, 2010 [1 favorite]

I have been studying the Google Books settlement for the past year. First, some replies to earlier comments. Gigantic linkdump in the next post.

klangklangston: it's only really a monopoly because Google was the only entity that made this happen.

Google is the only entity that's seriously scanning books in copyright right now. But the "monopolistic" aspects of the settlement come from the involvement of a court. The proposed settlement would give Google not just digital scans but the legal right to sell copies of them. No one else would have similar rights, because no one else is a defendant in the lawsuit. That's the "monopoly" that some settlement opponents point to.

delmoi: Well, can't those groups go ahead and sue on their own?

They could get a group of their members to opt out of the current settlement and sue Google independently, yes. But that wouldn't affect this settlement itself, which gives Google the right to sell any out-of-print book whose copyright owner doesn't affirmatively object. They're upset not just on behalf of their active members, but on behalf of authors who may not find out about the settlement and assert their rights. They're also angry, among other things, at an arbitration section that could change the balance of rights and royalties between authors and publishers.

joannemerriam: I think this is a misunderstanding of what happened here. It's already illegal to scan (reproduce) an in-copyright book without the copyright holder's permission.

Subject, that is, to a fair-use defense. Google had, IMHO (and the HO of many other academics) a very strong fair use argument that reproducing books for the purpose of making them searchable is a fair use. They've won similar lawsuits brought against them on the web.

joannemerriam: The settlement would allow Google to continue scanning books but now they have to pay the copyright holder a portion of the profit they receive from their work.

Google would be allowed to keep scanning, but the settlement would go beyond what they've done in the past by authorizing it to sell books online. Until now, it's just been search. When they start selling books under the settlement, then Google will share part of the revenue with publishers and authors.

joannemerriam: The issue most writers groups have with the settlement is its specific terms and language, not its existence.

This is true for some of the writers' groups. Others object to an opt-out system at all for anything having to do with copyright. They think that copyright is inherently an opt-in system: if the author disapproves, then that's it, and you can't make the use. Because the settlement would give Google permission by default, some of the writers see it as destroying their property rights.

smackfu: Is this just about Google scanning stuff then showing snippets when people do searches, and claiming that it fair use? Some people seem to be acting like they are providing books for free online.

So far, Google has jsut scanned and shown snippets, claiming fair use. That was the basis of the original lawsuit. The settlement was surprising, and has become controversial, because it would let Google start putting full books online. Some public-interest academics think the books should be cheaper and in many cases free; some writers think the books shouldn't be there at all; others have concerns about how the prices will be set.

deticxe: I understood the issue is that there are now a load of books sitting in Google servers. They went ahead and scanned a bunch of libraries, then layed out this content distribution system, promising returns for publishers and authors.

And i think the authors, or people on behalf of them, whose work was scanned thought that they should be involved more.

And all this disagreement of clauses and terms is what happens when two massive bodies 'get together' to work on something jointly.

In 2004, Google started scanned the contents of many libraries, in a process that is still going on. It was primarily about search. Authors and publishers got upset, wanting more control,and sued Google. In 2008, the proposed settlement was announced. That was the first that this "content distribution system" was publicly discussed.

The settlement would create a new Book Rights Registry, which would be run half by authors and half by publishers; it would represent them in negotiations with Google, handle the money that Google pays, act (in some ways) on behalf of copyright owners who can't be found, be a new licensing agent for books, search for missing copyright owners, communicate pricing instructions to Google, and a bunch of other things. The Authors Guild and Association of American Publishers (who filed the original lawsuit) would pick its initial directors. They like this system. Other authors and publishers (mostly authors) distrust the propsed Registry and think it won't represent them.

Since most guesses are that 60 to 80 percent of what Google is scanning would fall under the rubric of orphaned work, it could mean that a substantial number of books will only be available in electronic format from one company.

David Drummond from Google testified to Congress that Google belives about 20% of the books it has scanned are orphans. The Authors Guild thinks that about 15% of out-of-print in-copyright books are orphans, at most. I've also seen an estimate of about 500,000. The straight truth is that no one really knows the number, so the guesses are all over the map.

Kattullus: As to the Google Books Settlement, well, it doesn't affect me directly and to be honest I don't really care.

It's going to affect all of us. For readers, it will create a new institution with a huge supply of previously hard-to-find books. For copyright owners, it will shape the marketplace of books. This settlement has the potential to reshape the book industry, and the system of libraries and archives, and rewire how most people get access to books. In the transition from print to digital, this settlement could be the single biggest moment.

nomisxid: But nothing in their settlement prevents the Author's Guild from making the same agreement with someone else. If there is money to be made, another company Will make that deal, or, as happened with the online music industry, better deals, because the gateway for negotiation was already opened.

The Authors Guild is not the legal representative of authors in anything except the present lawsuit. In a future case, someone else might be the class action representative and unintersted in negotiating with Google. Even if it's the Authors Guild, if you thing the AG likes the Google deal because it creates a monopoly, you might think the last thing they'd want to do is give Google a competitor to drive prices down.
posted by grimmelm at 2:59 PM on January 23, 2010 [15 favorites]

I am a law professor; my primary research subject for the last year has been the Google Books settlement. In fact, my primary job has been explaining the settlement to the public. Excuse the extensive self-linking to follow, but my students at New York Law School and I have been focused on creating documents that explain the settlement clearly.

First, some overview:

The Public Index is our comprehensive collection of settlement information. We have a hyprlinked version of the settlement itself which you can comment on, section by section. We also have a comprehensive collection of settlement-related documents, including all of the briefs filed with the court for and against, all the essays and op-eds on it, tons of blog links, and an extensive news timeline. I personally blog about the the settlement at The Laboratorium and try to provide an up-to-date review of all significant developments in the case. Gary Price's Resource Shelf also has lots of quick-breaking news on the settlement.

If you want a single, complete review of the settlement from a legal perspective, Jonathan Band's The Long and Winding Road to the Google Books Settlement is the indispensible reference. Matthew Sag has a nice YouTube series that runs through the settlement, too. The official settlement site has some useful resources, including an 86-question FAQ, the complete proosed settlement agreement, the official settlement notice, and a form for copyright owners to search out their books in Google's database (in order to say, "Hey, that's mine!"). In October, we held a three-day conference on the settlement, D is for Digitize, and all of the sessions are online as video. I particularly recommend Jonathan Band's 90-minute overview of the settlement, or, if you're in a rush, his slides.

Next, some analysis:

Robert Darnton's essays in the New York Review of Books, linked above, are a decent place to start if you're interested in the literary long view. A powerful, succinct pro-settlement view is articulated by Lateef Mtima and Steven Jamar from Howard Law School; a powerful anti-settlement view by Pamela Samuelson from Berkeley Law School. Some other great letters include those from Lewis Hyde, Paul Courant, Stanford computer scientists, Gregory Crane.

If you want something meatier and more legally detailed, the briefs filed pro and con have a lot of useful analysis. The EFF, on behalf of authors like Michael Chabon and Mefi's own Jessamyn, objected on privacy grounds. I filed, for my institute at the law school, a brief detailing public-interst advantages and dangers dealing with orphan works. The National Federation of the Blind wrote a great brief arguing that the settlement will massively increase access to books for disabled users. And the Department of Justice derailed the original proposed settlement with its "statement of interest," forcing a round of revisions. We summarized all of the objections in a white paper that explains how the amended settlement, released in November, tries to deal with them.

If you're a real glutton for punishment, then the in-depth commentary has gotten quite good. The University of Chicago's Randy Picker has two good papers on the antitrust issues with the settlement; Harvard's Einer Elhauge has one great one. The aforementioned Pamela Samuelson has a long essay on the future of publishing in a post-settlement world. The aforementioned Matthew Sag has his own long general-purpose overview of the settlement, with a nice comparison between it and the fair use arguments that characterized the original lawsuit. Bernard Lang and Sam Ricketson have dueling analyses of whether the settlement is legal under international law. And I've written about whether it's appropriate to use a class action this way. We're working on a symposium issue of essays prepared for the conference, but most of those aren't ready for public sharing yet.
posted by grimmelm at 3:33 PM on January 23, 2010 [27 favorites]

Very interesting links. I guess the part I missed in all this is that the settlement itself basically results in Google getting the rights to do more than they ever planned to in the first place.
posted by smackfu at 4:31 PM on January 23, 2010

Nice.

Couple things. When Google started this, it was naïve to think it was only about the indexing. If that was it then yeah, good argument for fair use, transformative. But even early on they said they'd at least sell ads. That makes fair use a lot harder to defend. Of course selling the content was inevitable. How can you not have all that and not try and monetize it.

Yeah, this settlement has some pretty interesting incentives for publishers and authors. The irony is it's sort of bad for libraries, and it was the collaboration with libraries that made this all possible. In the end, many libraries will probably be paying Google for access to content from other libraries. Yes, there are moral reasons for authors to reject this, but the economic argument against it is much more difficult. Opting in is likely to produce new revenue. How much is impossible to determine, but all authors and publishers are likely to benefit. Readers and libraries, not so much.
posted by Toekneesan at 4:40 PM on January 23, 2010

not have all that
posted by Toekneesan at 4:45 PM on January 23, 2010

By the way, my 60 to 80% number comes from excluding books in the partner program and the public domain. Publishers have agreed to let Google scan those in the partner program so they aren't really covered by the settlement. The number from Drummand and the one the AG gave were really early in the process. Wasn't Drummand referring to what they had scanned up to that point a few years ago?

The most recent numbers I've heard are that of the 10 million they've scanned, about 1.5 million are public domain and about 3 million are in the partner program. The settlement is really about those in the middle. We'll see how many are claimed and how the rights negotiation process works, but I really doubt it's as low as 500,000. But yeah, any number at this point is a guess. I suppose we'll have to wait and see what the Rights Registry reports.

One other problem I had with the fair use argument was the copy the participating libraries got in return for giving Google access to their stacks. You can make a copy to index it, but that second copy was being used as a payment. Is that really covered by fair use? That transaction alone seemed to strain beyond the breaking point a fair use defense.
posted by Toekneesan at 5:49 PM on January 23, 2010

The claim form that grimmelm linked to (click the second tab) is pretty interesting. I recommend anyone who writes at least search for their stuff.

I found that not only did they have my out-of-print, obscure palindrome book, they have my college thesis listed!
posted by msalt at 1:01 PM on January 24, 2010

Metafilter's own John Scalzi is running for SWFA president.
posted by Artw at 10:42 AM on January 25, 2010

... the revised deal narrowed the definition of books covered under the settlement to those registered with the US Copyright Office by January 5, 2009 or published in Australia, Britain, Canada or the United States.

Why would a legal settlement in the US apply to other countries? I am not snarking, copyright and author compensation norms is by no means universal in those countries and why would an American court have jurisdiction outside its borders?
posted by saucysault at 9:03 PM on January 25, 2010

yeah I know that "is" should be "are" but I can't scroll though the comment box on the iPhone to correct it. Sorry, it bugs me too.
posted by saucysault at 9:05 PM on January 25, 2010

Why would a legal settlement in the US apply to other countries?

The Long and Winding Road doc above has a pretty good summary of the issues.

A country’s copyright law applies only within that country’s territory. This litigation concerns Google’s infringement in the United States of United States copyrights. Therefore, the settlement resolves only this litigation concerning United States copyrights. And although the settlement through the class action mechanism applies to non-United States rightsholders, the settlement applies only to their United States copyrights.

Google will provide the expanded services permitted under the settlement just to users located in the United States. Users outside of the United States will only have access to the current Library Project service, which displays three “snippets” consisting of a few sentences of text in response to each search query. Pending litigation in other countries concerning this service will continue.

For example, a Canadian author who published a book in Canada in 2000 has a copyright in the book in Canada, the United States and every other country that signed the Berne Convention. He is a member of the class of plaintiffs in the United States litigation, and the settlement applies to his United States copyright in the book.

posted by smackfu at 9:36 PM on January 25, 2010

you might think the last thing they'd want to do is give Google a competitor to drive prices down.

Unless they think they can get a better profit through higher volume of sales at a slightly reduced price. The point is, from an economics standpoint, the barrier to entry into the book scanning field is low. There are people out there selling book scanners to someone that isn't google already.

Given the existence, for years now, of the Gillian Archive, and it's fellow kin, I think the authors are missing the forest for the trees. The cat was out of the bag years ago. You can fit an author's entire life's work in the same number of bits as a single mp3. Digital cameras are cheap, OCR is amazing these days, and at least one dedicated fan will happily share the text of his ultra-rare book, eventually, without any of google's revenue stream back to the author. The cynic in me says, better something now, than nothing after you wasted money and years in court.

Who this settlement will kill is the used book store. Libraries are likely to see an upswing in donations of books that people with e-readers don't want cluttering up their house, once the prices for used books drop thru the floor.

on behalf of authors who may not find out about the settlement and assert their rights.

This objection seems strange to me. Any author who isn't aware of the google books issue at this point, doesn't seem like an author that really cares one way or another about the publishing industry as a whole, much less the fate of their own work. And they should fire their agent.

Is the idea that there is this massive untapped group of children of authors, who didn't know their parents wrote anything, so haven't been getting anything out of it all this time, and now will suddenly start objecting to getting paid? Seems like grasping at straws to me.

I'm still waiting to see if the Supreme Court ever decides that "for limited Times" can't keep extending to protect the mouse.
posted by nomisxid at 11:13 PM on January 25, 2010

Thanks smackfu! I am still working my way through the links but hadn't seen that point addressed.
posted by saucysault at 4:47 AM on January 26, 2010

Amazon's latest objection, filed just this afternoon, nicely points out why there are still market problems even with this latest version of the settlement.

"(The R)esellers provision would not foster competition, but rather install 'resellers' as weak sub-distributors of Google."..."because only Google hosts the digital copies, Amazon would be effectively referring its customers to Google. Following his first purchase, an Amazon customer would be likely to go directly to the source of the books, Google, for future purchases. Not only does this not create true competition (as Google would still control pricing, selection, and the customer experience of reading books online from its servers), it creates incentives for customers to migrate to Google faster than they otherwise would."

And about the orphaned works...

"The reason the products at issue do not now exist is because they are illegal, not because of the lack of innovation by competitors in the marketplace.... Congress has made a judgment about what is and what is not required before a product may be offered for sale: in the case of books, it is illegal to offer them for sale without the express permission of copyright holders. Avoiding that Congressional judgment is not something the courts can view as a 'pro-competitive benefit' of the PAS, much less one that 'outweighs' the price fixing and monopoly that it creates."

I don't often agree with Amazon but in this case, I think they're right.
posted by Toekneesan at 12:19 PM on January 28, 2010 [1 favorite]

Jessamyn linked to Lessig's great piece in the current New Republic. FWIW, he thinks they'll digitize 18 million, and 75% will be orphans, but that's before the registry and claiming process, as best I can tell, practically speaking (bottom of page 2). I thought I heard that figure before and it may be he mentioned it at the Educause keynote late last year.

This essay is so good that I wanted to post it on the front page, but figured it wouldn't be fair to put the mods in the uncomfortable position of having to delete from their front page the same thing Jess recently posted to Boing Boing. They'd tell me it goes in the open thread. So it goes.*
posted by Toekneesan at 5:57 PM on January 28, 2010 [1 favorite]

I went through the exact same thought process as you, Toekneesan. I thought this might merit posting but that a) there was already this thread b) it would start an almighty fight.
posted by Kattullus at 7:36 PM on January 28, 2010

Looks like the Justice department is not too happy with the revised settlement saying " the changes were not enough to placate concerns that the deal would grant Google a monopoly over millions of orphan works." The Times has a story about their concerns and their recent filing with the court.
posted by Toekneesan at 6:02 AM on February 5, 2010