Last Updated: 9/22

Official News Release from US Department of Justice

“Given the parties’ express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court, the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved. Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost.”

In its filing, the Department proposed that the parties consider a number of changes to the agreement that may help address the United States’ concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement’s ultimate scope, providing some mechanism by which Google’s competitors can gain comparable access.

Access the Full Text of the DOJ Filing (9/18/2009 via Justia)

From Search Engine Land
Danny Sullivan has a page by page review of the filing.

From The Laboratorium
Law professor James Grimmelmann offers a complete document review.

From Reuters

The U.S. Justice Department urged a New York court on Friday to reject Google’s controversial deal with authors and publishers that would allow the search engine giant to create a massive online digital library. The Justice Department said in a filing that the court “should reject the proposed settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with … copyright and antitrust laws.”

From Dow Jones Newswires/WSJ

Among its recommendations, the department said the parties should limit broad settlement provisions on future licensing that would allow Google to offer new products derived from its digital books platform.

Highlighting a number of antitrust concerns, the department said the current settlement could preclude other digital distributors from competing with Google and could allow book publishers to restrict price competition.

The department also questioned whether the settlement could impose certain copyright policy changes, and it said the agreement needed better protections for unknown copyright holders and foreign authors and publishers.

From CNN

Despite the perceived problems, the federal government in its first public comments in the case, said it believes the necessary changes could be made, and urged continued negotiations.

From Washington Post:

The Justice Department statement, posted late Friday night, did acknowledge that a “properly structured settlement agreement in this case offers the potential for important societal benefits.”

An official at Justice, who spoke on the condition of anonymity because the investigation is ongoing, said talks this week with parties involved in the agreement were “very constructive. They are motivated to come up with modifications that might address concerns we raised.”

Specifically, the Justice Department suggested limitations on the provisions for future licensing, a part of the settlement that some critics said would give Google dominant power over the licensing of digital titles. The agency also recommended adding more protections for the holders of rights to little-known books and eliminating the joint-pricing deal between publishers and authors.

Justice said that “whatever the settlement’s ultimate scope,” it should “provide some mechanism by which Google’s competitors can gain comparable access.”

From the AP

In its current form, the settlement would entrust Google with a digital database containing millions of copyright-protected books, including volumes no longer being published. The Internet search leader would act as the sales agent for the authors and publishers, giving 63 percent of the revenue to the copyright holders. Authors and publishers could either set their own prices for their books, or rely on a formula drawn up by Google — a provision that has raised fears of the partnership turning into a price-gouging cartel.

The Justice Department sided with those arguments, saying the settlement could lessen competition among U.S. publishers. The agency also expressed concern that Google would gain a monopoly on so-called “orphan works” — out-of-print books that are still protected by copyright but whose writers’ whereabouts are unknown.

[Our emphasis] The arrangement “appears to create a dangerous probability that only Google would have the ability to market to libraries and other institutions a comprehensive digital-book subscription.”

From New York Times

“As presently drafted the proposed settlement does not meet the legal standards this court must apply,” the department wrote in a 32-page legal filing. “This court should reject the proposed settlement and encourage the parties to continue negotiations to comply with Rule 23 and the copyright and antitrust laws.” Rule 23 governs procedures for class-action lawsuits.

[Snip]

The Justice Department is not a party to the case but legal experts say the judge reviewing the settlement is likely to give serious consideration to its arguments.

From Financial Times

The justice department had been expected to oppose the settlement, and its statement to the court appeared to be more of a qualified endorsement. It said it would continue to work with all sides if asked.

”The proposed settlement has the potential to breathe life into millions of works that are now effectively off limits to the public,” government lawyers wrote. But they cautioned: “The end result should be a marketplace in which consumers can be assured that they are paying competitive prices for the benefit they receive – in a marketplace in which they have multiple outlets from which to obtain access to works.”

From PC Magazine

DOJ made several suggestions for how to improve the settlement. Google should consider making the inclusion of out-of-print books opt-in rather than opt-out, just as it does for in-print books.

“This would put the out-of-print rights holders and in-print rights holders in the same situation and respond to a significant concern expressed by foreign rights holders,” DOJ said.

DOJ also urged Google to extend the amount of time rights holders had for opting out of the class and for claiming escrowed profits for orphan works. Instead of going to Google and registered rights holders, DOJ suggested the funds should be used to search for right holders. If the search was totally fruitless, Google could petition the court for permission to take the money. Another option would be to appoint a guardian of orphan works owners, DOJ said.

From the Los Angeles Times

“The brief is urging the judge against approving it outright or rejecting it outright,” said James Grimmelmann, a professor at New York Law School. “The overall message from Justice is that there are a lot of good things in this settlement. It doesn’t work in its current form, but it’s fixable.”

From Bloomberg

The U.S. Justice Department told a federal judge overseeing a settlement between Google Inc. and groups of authors and publishers that it is still negotiating with the parties and needs more time to reach an agreement.

From News.com

“The Proposed Settlement is one of the most far-reaching class action settlements of which the United States is aware; it should not be a surprise that the parties did not anticipate all of the difficult legal issues such an ambitious undertaking might raise,” the DOJ wrote in its filing.

[Snip]

But in its filing, it also raised objections over the settlement’s compliance with Rule 23 of the Federal Rule of Civil Procedure as well as copyright law in general. “In the view of the United States, each category of objection is serious in isolation, and, taken together, raise cause for concern.”

[Snip]

“As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement,” the DOJ wrote.

From IDG News Service

In fact, the DOJ’s Antitrust Division continues investigating the settlement, the DOJ said in Friday’s filing, which nonetheless contains “a preliminary explanation” of the agency’s antitrust concerns.

UPDATE 9/21: From the Huffington Post: DOJ Says No to Google Book Settlement

Among the most significant recommendations DOJ made for modifying the Proposed Settlement is one to ameliorate the risk of market foreclosure as to institutional subscriptions. DOJ suggests the parties should find a way to “provide some mechanism by which Google’s competitors could gain comparable access to orphan works.” That is, DOJ is recommending that Google, the Authors Guild and the publishers find a way to let firms such as Amazon.com and Microsoft get comparable licenses to out-of-print books, particularly to orphans. Google has previously denied that it was possible to include competitors in any license granted through the settlement. It will be interesting to see if the litigants want the settlement badly enough to conjure up a way to extend the license to firms other than Google.

Another significant modification proposed by DOJ concerns the “sweeping forward-looking licensing” provisions that allow Google and the BRR to commercialize out-of-print books for “unspecified future uses…, essentially authorizing…open-ended exploitation of the works of all of those who did not opt out.” DOJ has several problems with the future use provisions.

UPDATE 9/21: From the NY Times: Google Working to Revise Digital Books Settlement

Laying out a path forward, the department said some of its antitrust concerns could be mitigated by “some mechanism by which Google’s competitors’ could gain comparable access to orphan works.” And it said that concerns about the fair representation of some authors could be addressed if some rights for Google to profit from out-of-print books were granted only if their authors agreed, rather than by default.

Legal experts suggest that proposal could prove to be a sticking point, as it would not allow Google to offer a comprehensive library. But even the Justice Department suggested there could be other solutions.

[Snip]

Judge Denny Chin of the United States District Court for the Southern District of New York has given the parties until Oct. 2 to respond to the objections and has scheduled a hearing on the case for Oct. 7.

But some experts say the case is likely to be delayed well beyond that, as changes to the settlement are likely to require members of the class to be notified, a process that could take months. And even after that, a resolution may not be immediate.

UPDATE 9/21 Editorial from Library Journal: The Google Wars
Note: The editorial below, scheduled to be published in the October 1, 2009 print Library Journal, was written before the Department of Justice filed its “Statement of Interest” with the federal court on the Google settlement. We’re pleased that the DoJ has expressed its concerns about the settlement.

We call on Judge Chin (and, as [ U.S. register of copyrights Marybeth] Peters does, on Congress) to throw out the settlement—or at the very least modify and supervise its most pernicious sections—to ensure that the future of digital books, many scanned from libraries that purchased them at significant cost, not be put in the exclusive hands of Google.

Note:
Pamela Samuelson is mentioned in the LJ editorial. You can access the three articles that she wrote for the Huffington Post about the settlement here.

Comments from Organizations

From Google, Authors Guild, and AAP (via Reuters, see above)

In a statement, Google, the Authors Guild and the Association of American Publishers said the Department of Justice filing “recognizes the value the settlement can provide by unlocking access to millions of books” in the United States.”

From Google (via Washington Post, see above)

“We are considering the points raised by the Department and look forward to addressing them as the court proceedings continue.”

From Google (via Dow Jones)

A Google spokesman declined to comment on whether the parties were considering making changes.

From Open Book Alliance

The Open Book Alliance is pleased with the action taken today by the Department of Justice, which we believe will help to protect the public interest and preserve competition and innovation. Despite Google’s vigorous efforts to convince them otherwise, the Department of Justice recognizes that there are significant problems with terms of the proposed settlement, which is consistent with the concerns voiced with the Court by hundreds and hundreds of other parties.

“The members of the Open Book Alliance recognize the tremendous value that the mass digitization of books can bring to consumers, libraries, scholars and students…The current settlement proposal would stifle innovation and competition in favor of a monopoly over the access, distribution, and pricing of the largest collection of digital books in the world, and would reinforce an already dominant position in search and search advertising.

UPDATE 9/21 From The Authors Guild

Beating their midnight deadline by about 90 minutes, the Justice Department on Friday filed a brief calling for modifications to the Authors Guild’s class-action settlement with Google over Google’s scanning of millions of library books without permission. The Justice Department said the parties to the settlement should modify the settlement to address certain copyright, antitrust, and class-action concerns. While it opposes the settlement agreement as it now stands, the Justice Department “strongly supports” the settlement’s goals of creating new markets for out-of-print works and committed itself to working constructively with the parties on a revised settlement.

UPDATE: 9/22: From Open Book Alliance

Now that we’ve had a chance to review the Justice Department’s filing in more detail, we recognize that one thing is certain – the proposed Google Book Settlement, as it’s currently written, will not go through. Even Google seems to agree with this — after months of fighting against any change to the settlement, they acknowledge that the settlement must be profoundly altered. That’s good news for anyone who wants to protect innovation, competition, and the public interest as we evolve the world of books to the digital age.

[Snip]

The Justice Department acknowledges that this case effects the public interest. It’s broader than a typical class action settlement between private parties, and the process going forward must include more voices. Open Book Alliance looks forward to being an active voice among the many stakeholders in future discussions.

From Consumer Watchdog

Consumer Watchdog praised the U.S. Justice Department for objecting to the proposed Google Books settlement in a brief the department filed in U.S. District Court tonight.

[Snip]

Consumer Watchdog stressed that even if Google, The Authors Guild and the Association of American Publishers agree to change their deal to overcome Justice’s antitrust objections, the settlement still should not be implemented.

“Solving the antitrust problem is only piece of the problem,” said Simpson. “Another deal-breaker should be the complete lack of privacy guarantees. Google, under pressure from the Federal Trade Commission, released a so-called ‘privacy policy’, but what’s to stop them from changing it the day after a settlement is approved on a corporate whim.

From the U.S. Department of Justice (via Dow Jones, see above)

A Justice Department official, speaking on the condition of anonymity, said it was “too early to tell” whether the types of changes the government recommended would require the parties to again notify all members of the plaintiff class about the terms of the settlement.

At End of Act II: Are We Being Played for Fools OR Building an Enlightened Digital World? (via Open Content Alliance Blog)
Brewster Kahle writes:

With the Justice Department objection, we are just where the Google+TradeLawyers may have hoped we would be. The question now is: do we play the concluding Act III of this saga according to their script or do we build a competitive and rich digital world? Please grant me a moment to explain.

From the Article:

EU regulators should look into the book settlement that Google Inc reached with a group of U.S. writers and publishers last October because the deal will create a de facto monopoly, European opponents to the book deal said on Friday.

[Snip]

A hearing held by the European Commission on the matter on September 7 and attended by interested parties and Google officials failed to answer critics’ questions, the groups said in a letter to EU Internal Market Commissioner Charlie McCreevy, Competition Commissioner Neelie Kroes and six other commissioners.

Signatories to the letter include Microsoft-sponsored lobbying group ICOMP, the German Publishers and Booksellers Association, German lobbying group SuMa and CEPIC, which represents about 1,000 picture associations, agencies and libraries in Europe.

[Snip]

Google rejected the criticism, saying it had responded to all the questions fielded at the hearing and had met numerous times with interested parties.

“To say we chose not to answer questions is simply wrong. We have always been happy to answer questions about the settlement, including from organizations like ICOMP,” the company said in a statement

Source: Reuters

Peter Brantley, Co-Chair of the Open Book Alliance Writes:

The right way to make the promise of the digitization of books a reality must follow these principles:

+ Any mass book digitization and publishing effort be open and competitive vs. exclusive and monopolistic.
+ It needs to prioritize and promote long-term benefits for consumers rather than isolated commercial interests.
+ It must be done in a way that respects authors’ rights, rather than trampling them.
+ The process of achieving this promise must be undertaken in the open, grounded in sound public policy vs. a private settlement that bypasses the rights and responsibilities of our elected officials

Read the Entire OBA Post

Source: Open Book Alliance

See Also: Google’s Schmidt To Book Settlement Critics: What’s Your Solution? (via Search Engine Land)

From the Wall Street Journal Article:

The Department of Justice is expected Friday to outline a range of concerns it has about a settlement that Google Inc. struck with book authors and publishers over the rights to distribute digital copies of certain books, according to people familiar with the matter.

[Snip]

The filing is likely to discuss the department’s concern that parts of the agreement may hurt the interests of other parties, such as Google’s potential competitors in the nascent digital-book market.

[Snip]

For example, the Justice Department is concerned that one of the agreement’s features–a “registry” that governs aspects of the agreement such as some pricing and payment distributions–could allow publishers to set prohibitively high prices for their works, said one of the people familiar with the matter.

[Snip]

The Justice Department also believes some of its concerns can be addressed through continuing negotiations that generate certain changes in the agreement, according to one of the people familiar with the matter.

Google spokesman Gabriel Stricker reaffirmed the company’s defense of the settlement as “unlocking access to millions of books in the U.S. while giving authors and publishers new ways to distribute their work.”

Access the Complete Article

Source: Wall Street Journal

See Also: Regulators raise concerns on Google book deal (via Marketwatch)

At least five state attorneys general have filed briefs raising concerns about Google Inc.’s proposed legal settlement with authors and publishers, adding to a wave of criticism lodged against the high-profile deal as it nears a public hearing.

Attorneys general from Missouri, Connecticut, Pennsylvania, Massachusetts and Washington have filed comments opposing the proposed settlement, arguing that its use of payments intended for copyright holders that can’t be located is potentially unlawful.

See Also: If You Would Like to Review the Court Docket and/or Read Any of the Court Filings in this Case, You Can Access them via Justia. The material is free and does not require a PACER account.

See Also: Google’s Schmidt To Book Settlement Critics: What’s Your Solution? (via Search Engine Land)
Danny Sullivan interviews Google CEO, Eric Schmidt.

See Also: Witness Testimony, Video, Press Review and Other Materials from U.S. Congress Hearing About Competition and Commerce in Digital Books
The hearing took place on September 10, 2009 and this compilation of resources has been updated with new material since then.

Danny Sullivan Writes:

Would Google be willing to do this? Google CEO Eric Schmidt says he’s open to ideas, but none of the critics are putting forward new solutions that would resolve the legal case that was filed against his company.

“I’m open to a better solution. You will recall, we had our solution, and we were sued over it. And we then had a-god-knows-how-many years of negotiations with 27 parties, and we’ve actually produced a deal,” Schmidt said, when I spoke to him yesterday.

[Snip]

While noting the concerns, Schmidt said Google still believes the settlement is the best way forward.

“I want to be very clear and on the record here. We are absolutely in favor of the settlement, and we would like the settlement to go through. We have not changed our view on the validity of this. I think if anything, the criticism tells you how important it is to get the settlement going because without a settlement, you will end up in a situation where people doing what Google’s doing, this will ultimately be sorted out in the courts, because the government is not going to pass any laws in this area any time soon. At least there seems to be no desire to do that, he said.

Source: Search Engine Land

See Also: If you would like to review the actual court docket for this case and read/review any of the full text filings, (no PACER account required (Free), JUSTIA makes these documents available.

See Also: Google Said to Be in Talks to Modify Online Book Settlement (via Bloomberg, Hat Tip: Library Stuff)

About three weeks ago we posted that EDUCAUSE was organizing a discussion about the Google Book scanning project on September 2nd. The event was titled, “The Google Book Scanning Project: Issues and Updates.”

The entire interactive discussion as well as PowerPoint slides (for both speakers) and a text transcript are now available online (free).

All of the material can be accessed on this web page.

Note: The interactive discussion itself is labeled “Seminar Archive” on this page. The webcast utilizes Adobe Connect Professional.

The featured presenters were:

+ Jonathan Band
Counsel
Library Copyright Alliance

and

+ Dan Clancy
Engineering Director
Google Book Search

Brief bios of both presenters can be found here.

Source: EDUCAUSE

Charles W. Bailey, Jr. from Digital Scholarship has just announced that a new version of his Google Book Search Bibliography (Version 5) is now online.

From the Description:
This bibliography presents selected English-language articles and other works that are useful in understanding Google Book Search. It primarily focuses on the evolution of Google Book Search and the legal, library, and social issues associated with it. Where possible, links are provided to works that are freely available on the Internet, including e-prints in disciplinary archives and institutional
repositories.

Source: Digital Scholarship, Charles W. Bailey, Jr.

See Also: From ResourceShelf: Prepared Testimony and News Review from the September 10, 2009 House Hearing on Competition and Commerce in Digital Books

As we said last night, a hearing (by the Judiciary Committee) was scheduled to take place this morning (DC time) to discuss competition in the digital book arena.

Most of the witnesses have posted their prepared testimony to this page. Each name is hyperlinked to their prepared statement (PDF File).

Witness List

David C. Drummond
Senior Vice President of Corporate Development and Chief Legal Officer
Google Inc.

Paul Misener
Vice President of Global Policy
Amazon.com

Marc Maurer, J.D.
President
National Federation of the Blind

John M. Simpson
Consumer Advocate
Consumer Watchdog

Paul Aiken
Executive Director
Authors Guild

Marybeth Peters
Register of Copyrights
U.S. Copyright Office

Randal C. Picker
Paul H. and Theo Leffmann Professor of Commercial Law
University of Chicago Law School

David Balto
Senior Fellow
Center for American Progress

+ A video of Mr. Drummond’s testimony
+ More Video (via Google Public Policy Blog)
+ More Video (via Open Book Alliance)

The Open Book Alliance Has Made Several Posts Yesterday and Today:

+ Cooler Heads, Prevailing

Fundamentally, Rep. [Hank] Johnson (D-GA) commented that the scope of the settlement is most troubling, with a private settlement erecting Google as a gatekeeper. He also cited the lack of consumer protections outlined by some witnesses as an area of concern.

+ Open Book Alliance Response to Google Editions Retailer Access “Concession”

“Google’s announcement today that it would give retailers access to out of print books via Google Editions is much ado about nothing.”

+ The OBA has also posted (on their blog) a seven point list of what they’ve titled, Fact v. Fiction on the Google Book Settlement.

+ A Letter (PDF) from the Open Book Alliance sent to the Judiciary Committee.

Google Book Search Hearing (Live on Twitter)

Press Review

+ U.S. Register of Copyrights Slams Google Book Search Settlement (via Publishers Weekly)

In testimony before the House Judiciary subcommittee this morning, Marybeth Peters, U.S. Register of Copyrights, in her first detailed comments on the subject, blasted the Google Book Search Settlement as “fundamentally at odds with the law.” In a blistering assessment of the deal, Peters told lawmakers that the settlement is in essence a compulsory license that would give Google the ability to engage in activities, such as text display and sale of downloads, that are “indisputable acts of copyright infringement.”

Most damaging, however, was Peters’s insistence that only Congress—not the courts—could enact such licenses, and her repeated assessments that the settlement deprived Congress of its role. “By permitting Google to engage in a wide array of new uses of most books in existence the settlement would alter the landscape of copyright law,” Peters said. “That is the role of Congress, not the courts.” She said that by allowing out-of-print works to be swept into the settlement, the deal “makes a mockery of Article I of the Constitution.” Only Congress, she stressed, after a full public debate, can set such new rules.

+ Copyright Office No Fan of Google Books Settlement (via Wall Street Journal)

A written statement released by Judiciary Committee chairman John Conyers’s office said that “it is unclear whether the settlement is truly fair to copyright owners.” However, during the hearing, he said, “The settlement has, in my view, has been fair to copyright holders.”

A spokesman for Rep. Conyers wasn’t immediately available for comment about the chairman’s views about the settlement.

In her written testimony, Ms. Peters said that when the Google Books settlement was first announced, the copyright office’s “initial reaction was that this was a positive development.” But as staffers met with both parties, lawyers and academics, “and began to absorb the many terms and conditions of the settlement,” she said, “we grew increasingly concerned.”

+ Copyright Office Leader Balks at Google Book Deal (AP)

[Marybeth] Peters [head of the copyright office] can’t block Google’s settlement with U.S. authors and publishers. That decision rests with U.S. District Judge Denny Chin, who has scheduled an Oct. 7 hearing in New York to review the settlement.

+ Google offers rivals a place in e-books program (via News.com)

“Any bookseller–Amazon, Barnes & Noble, Microsoft–would be able to sell the books covered by the settlement,” said David C. Drummond, Google’s chief legal officer. Under the proposed settlement, Google would get 37 percent of revenue from e-books sold through its service, and through the reseller program, the reseller would get “the significant majority” of that 37 percent, Drummond said.
[Snip]
But Amazon indicated it’s not interested after Judiciary Committee Chairman John Conyers, a Democrat from Michigan, asked the company’s reaction to this “thrilling new piece of information” from Google.

“The Internet has never been about intermediation,” said Paul Misener, Amazon’s vice president of global policy. “We’re happy to work with rights holders without anybody else’s help.”
[Snip]
The hearing revealed some representatives, including the chairman, to be allies of Google. Also generally speaking in favor of Google’s work were Zoe Lofgren and Brad Sherman, both Democrats from California.

“It is a good thing to provide millions of Americans access to published works that otherwise wouldn’t be available to them,” Conyers said. “A library available to every household with an Internet connection–this could be the greatest innovation in book publishing since the Gutenberg press.”

+ Google Books to Allow Third Parties to Sell Out-of-Print Books from the G.B. Settlement (via BayNewser)

Today’s announcement also seems in line with Google’s larger goal of becoming the world’s preeminent provider of digital books, including new in-print books, which are not part of the Settlement.

In July, Google Books engineering director Dan Clancy outlined Google’s vision for its digital books future, which involved a product called Google Editions, a mechanism for selling e-books via any retailer (Google itself, other online retailers, as well as brick-and-mortar stores).

That vision, which seems embodied in today’s statement, involves Google “hosting” copies of e-books on their servers. Purchasers would then simply access their purchases via their personal devices, rather than actually download the works to the devices themselves.

+ Lawmakers Probe Google Book Search (internetnews.com)

As it happens, Google’s settlement agreement already provided resellers access to scanned books both in and out of print. So the olive branch Drummond offered at today’s hearing, though presented as a concession, was not a modification of the terms of the settlement. Rather, it seemed aimed as a signal to lawmakers that the deal would do nothing to hinder competition.

“That’s very generous of you,” said Judiciary Committee Chairman John Conyers.

+ Amazon Scoffs at Google’s Offer to Share Book Search Sales (via Wired)

…Rep. Zoe Lofgren (D-California) said the deal should be approved, calling it a “rare truce in the copyright wars.”

Moreover, Congress was to blame for the whole mess anyhow, by failing to fix the orphan book issue in recent years.

Rep. Zoe Lofgren (D-CA) also suggested that Congress simply reduce the number of books still in copyright by repealing the 1998 Sony Bono Copyright Extension Act, which added extended copyright terms for 20 years, reportedly to keep Mickey Mouse from falling into the public domain.

Google also got powerful testimony on its behalf from Marc Maurer, the president of the National Federation of the Blind, who accused the online book industry of deliberately frustrating 1.5 million blind Americans.

“So far Google is the only company to make millions of books available to the country in ways that can be used by blind readers,” Maurer said. “We want the right to buy books. But now opponents of this settlement would like to close this market.”

Editors Note: Hey, let’s give others a bit of notice.
Yes, of course, Google has scanned millions of out of-print titles to this point and made them available a variety of ways. However, this doesn’t mean that other organizations like The Internet Archive, Project Gutenberg, ebrary, NetLibrary, and the International Children’s Digital Library are doing some great work digitizing/scanning books and other materials, often available online for free or for free via a local library. Want more free online books? The visit the Online Books Page. It contains material from a large variety of sources including Google. Just look at how much has been added in the past few days.

+ Official: Book settlement makes ‘mockery’ of copyright law (via IDG News)

But critics said the settlement gives Google an unfair advantage by allowing it blanket access to most books. The settlement rewards Google for scanning first without asking authors and publishers for permission, said Paul Misener, vice president of global policy at Amazon.com.

Amazon has scanned about 3 million books, Misener said.

“The difference is, and probably the only significant difference between their book-scanning project and ours, is we first sought permission from the rights holders,” he said. “We went to the rights holders, and one by one, negotiated deals … to be allowed, legally, to scan these books.”

+ Google May Have to Modify Book Settlement for Judge (Update3) (via Bloomberg)

The governments of Germany and France have joined authors in the U.S., Japan and Europe to oppose the settlement, saying it doesn’t give copyright owners enough choice about how their content is used.

“There are some good points the court cannot ignore” while some attacks are unfair, said Terence Ross, a copyright lawyer with Gibson, Dunn & Crutcher in Washington who’s following the case and doesn’t represent either side. “He may ask the parties to go back, without rewriting the agreement from scratch, and address certain objections. Innovation often poses problems for the law and established bureaucracy.”

UPDATE (9/10) Google to allow booksellers to profit from digital library (via LA Times)

“We believe strongly in an open and competitive market for digital books,” Google said in a statement. “As part of that commitment, today we announced that for the out-of-print books being made available through the Google Books settlement, we will let any book retailer sell access to those books. Google will host the digital books online, and retailers such as Amazon, Barnes & Noble or your local bookstore will be able to sell access to users on any Internet-connected device they choose.”

The announcement did not appease some critics, who said the proposal still leaves Google in near-complete control of the digital files.

“I fail to see what’s really new here,” said Peter Brantley, a director at the Internet Archive, a San Francisco nonprofit organization that collects and makes available various publicly available content free of charge. “It’s like Macy’s telling Sears, ‘You can sell Macy’s clothing.’ There’s no fundamental change of the conditions under which Macy’s acquires those clothes. Google remains in control.

UPDATE: (9/11): Association of Research Libraries Summary of House Committee on the Judiciary Hearing on Proposed Google Book Settlement Agreement: “Competition and Commerce in Digital Books”(PDF)

UPDATE (9/11): Google Fights Book Backlash (via WSJ)

Paul Aiken, executive director of the Authors Guild, applauded Google’s decision [allowing rivals to sell access to the digital copies of millions of out-of-print books it has amassed ] saying it would generate additional book sales. “Having books available through multiple outlets directly addresses the antitrust issues,” he said.

[Snip]

In an interview, Google Chief Legal Officer David Drummond said Thursday’s measure should put to rest concerns that “Google and only Google will have the ability to get the full portfolio” of digital works.

[Snip]

The Justice Department, which has been discussing its concerns about the deal with the parties, is weighing whether to flag those concerns to the court, according to these people. Judge Chin has given the Justice Department a deadline of Sept. 18 to file a brief.

Among other measures, the department is worried that the agreement doesn’t contain enough checks and balances to prevent publishers from charging higher prices for digital book subscriptions, said these people.

Mr. Drummond said Google continues to talk to the Justice Department but “doesn’t have any plans to make any changes at this point.” A Justice Department spokeswoman declined to comment.

(Update 9/11) Google writes its own rules (via Financial Times by Christopher Caldwell, senior editor at The Weekly Standard)

Neither privacy nor competition is the main reason for scepticism about the Google books settlement. The problem is that the arrangement is a usurpation. It is a false analogy to compare Google Books, as some defenders of the settlement do, to Amazon’s Kindle system of e-books. Authors and publishers participate in Kindle by granting Amazon permission to publish in that format. Google’s system would dispense with such permission. It is thus a change in the regime of property rights. The settlement authorises a large corporation to manage the rights of authors it cannot locate, and to justify itself with vague invocations of our cultural heritage.

UPDATE (9/11) Google Book Search: Filings Roundup for Thursday, September 10, 2009 (via The Laboratorium)

UPDATE (9/16) Google Said to Be in Talks to Modify Online Book Settlement (via Bloomberg)

The discussions are aimed at easing Justice Department concerns the deal would let Google discourage other companies from competing for access to the books online, said one of the people. Both spoke on condition of anonymity.

Earlier today, U.S. District Judge Denny Chin in New York ordered Google and the other parties to the settlement to respond to an outpouring of viewpoints questioning the plan to create a digital book library.

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Chin today said he has received about 400 filings by individuals and groups who object to the deal, support it or want some legal points to be considered.

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He ordered the parties in the case to respond by Oct. 2 “in light of the volume of submissions and the apparent public interest in the case.” Chin plans to hold an Oct. 7 hearing to decide whether to approve the $125 million agreement reached by Google to establish a “Book Rights Registry,” which would identify and compensate rights holders whose books have been scanned by Google.

Update (9/16) Google’s Schmidt To Book Settlement Critics: What’s Your Solution? (via Search Engine Land)

Would Google be willing to do this? Google CEO Eric Schmidt says he’s open to ideas, but none of the critics are putting forward new solutions that would resolve the legal case that was filed against his company.

“I’m open to a better solution. You will recall, we had our solution, and we were sued over it. And we then had a-god-knows-how-many years of negotiations with 27 parties, and we’ve actually produced a deal,” Schmidt said, when I spoke to him yesterday.

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While noting the concerns, Schmidt said Google still believes the settlement is the best way forward.

“I want to be very clear and on the record here. We are absolutely in favor of the settlement, and we would like the settlement to go through. We have not changed our view on the validity of this. I think if anything, the criticism tells you how important it is to get the settlement going because without a settlement, you will end up in a situation where people doing what Google’s doing, this will ultimately be sorted out in the courts, because the government is not going to pass any laws in this area any time soon. At least there seems to be no desire to do that, he said.

Sources: House.gov / Open Book Alliance / Other Sources
Hat Tips: Teleread, Library Stuff, Digital Koans

From the Announcement:

A coalition of authors and publishers—including best-sellers Michael Chabon, Jonathan Lethem, and technical author Bruce Schneier—is urging a federal judge to reject the proposed settlement in a lawsuit over Google Book Search, arguing that the sweeping agreement to digitize millions of books ignores critical privacy rights for readers and writers.

The group of more than two dozen authors and publishers, represented by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and the Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, School of Law (Samuelson clinic), filed an objection to the settlement today. The coalition is concerned that Google’s collection of personal identifying information about users who browse, read, and make purchases online at Google Book Search will chill their readership.

Read the Full Text of the Filing (44 pages; PDF)

Source: Electronic Frontier Foundation

See Also: An Update on Google Books and Privacy (via Google)

From the Article:

Silicon Valley antitrust lawyer Gary Reback made his case against the Google Books settlement Tuesday, arguing that the settlement is illegal but could be remedied if the Justice Department insists that Google license the books it scanned to competitors.

In a court filing (PDF) on behalf of the Open Book Alliance, a consortium that opposes the settlement, the attorney argues that the settlement between Google, the Authors Guild and the Association of American Publishers gives publishers and Google monopoly control over the pricing of digital books. Reback, who was involved in spurring the Justice Department to bring an antitrust suit against Microsoft in the 1990s, co-founded the consortium along with the Internet Archive, a nonprofit that is trying to create a digital archive of the Web, last month. Many members of the consortium, including the Internet Archive, Amazon.com, Yahoo and Microsoft, have filed their own briefs opposing the settlement too.

Much More in the Complete WSJ Article

Read the Complete Court Filing (38 pages; PDF)

Source: Wall Street Journal

From the Teleread Post:

This is from a speech given by Jim Killock, Executive Director of the Open Rights Group. You can read the full text here.

“We must not see this dispute as simply a process to deliver a compromise between two commercial interests.

“Instead we must ask how best to deliver the wealth of European and world literature – and other cultural works – to citizens.

“European literature may shortly be more widely available in the US than in Europe. This would be ironic, regrettable and damaging to European cultures. It is also unnecessary.

“We think we must now accept that there is something very wrong with EU copyright law. The incontrovertible evidence is that it needs substantial reform every time an innovative service using copyright works comes along.

“Copyright, having acted as an economic incentive to production, is now acting in Europe as a barrier to commercial and academic availability.
“We need a limitation to copyright to allow the search and indexing of copyright content.

“European economies need a much more flexible copyright regime, or we stand to lose out in culture, innovation and jobs.”

Other key points:

The public needs Google Books or services like it

We need competition between services

Source: Open Rights Group (via TeleRead)

See Also: Google Tries to Assuage EU Doubters of Its US Books Deal; France Files Objections to Deal

From the Article:

In a letter to 16 European book publishing companies, the search giant proposed giving two of the eight director positions on its proposed U.S. book registry to non-U.S. representatives, a person close to the company said Monday.

Google paid US$125 million to create the registry which will act as middleman between Google and the publishers and ensure that copyright owners are compensated.

The company also promised not to include European works in the digitizing process in the U.S. without consulting their publishers first.

Resistance to the U.S. deal is strong among some politicians, libraries and publishers, particularly in Germany and France.

Five organizations representing E.U. publishers, libraries, rights holders and businesses active in Internet commerce told the European Commission at a hearing on Monday that the proposed U.S. Google book settlement is unacceptable in its present form, because it would lead to “a de facto monopoly” in the emerging digital books market.

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“We should not let a single U.S. entity dictate an international model of rights recording,” said Peter Brantley of the Internet Archive and Open Book Alliance, one of the five organizations.

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The U.S. settlement between Google and U.S. publishers, which is still under scrutiny by a New York court, was the subject of a one-day hearing hosted by the European Commission Monday.

It will be followed Tuesday by a series of one-on-one meetings between Information Commissioner Viviane Reding and, among others, Dan Clancy, Google’s top executive responsible for the Books project.

Source: PC World

See Also: Bringing the world’s lost books back to life (Google European Public Policy Blog)
Posted by Google’s Dan Clancy.

See Also: “It is time for Europe to turn over a new e-leaf on digital books and copyright”. Joint Statement of EU Commissioners Reding and McCreevy on the occasion of this week’s Google Books meetings in Brussels

See Also: France to file objections to Google online-book deal (via Reuters)

The French government plans to file its objections to Google Inc’s (GOOG.O) plan to digitize millions of books in a New York court this week, a French Culture Ministry official said on Monday. “France will send its observations to the U.S. court today or tomorrow,” Nicolas Georges, director for books and libraries at the French Culture Ministry, told Reuters on the sidelines of a European Commission hearing on Google’s deal with U.S. authors and publisher groups struck earlier this year.

France is concerned about European authors’ rights, Georges said.

“There are lots of European works in Google’s database. Google can digitalise these works without the permission of European authors,” he said.

See Also: For More News and Analysis See Greg Sterling’s, Google Gives Some Ground In Books Row, France Moves To Protect “Orphans” (via Search Engine Land

From the Blog Post:

The Open Book Alliance keeps growing; today, we are excited to welcome the National Writers Union to the effort. The NWU press release can be found here.

There are now 11 academic, professional, and industry organizations that have united to inform policy makers and the public about the serious legal, competitive, and policy issues the settlement proposal presents.

The NWU is the nation’s only labor union and advocacy organization for freelance writers in all genres, media, and formats. In addition to print media writers, NWU represents electronic writers and editors of blogs, Web sites and e-newsletters. The NWU is affiliated with the United Auto Workers (UAW), which is a member of the AFL-CIO.

Read the Full News Release

See Also (9/3/09): Science Fiction and Fantasy Writers of America Joins Open Book Alliance

From the Article:

The Open Book Alliance announced today that the Science Fiction and Fantasy Writers of America (SFWA) has joined the coalition of librarians, legal scholars, authors, publishers, and technology companies dedicated to countering the proposed Google Book Settlement.

“We are thrilled that SFWA has joined our unique and diverse group of academic, professional, and industry organizations,” said Alliance co-chair Peter Brantley. “More and more, people across the spectrum of this issue are recognizing that the settlement as it is currently proposed is not the right way to bring about the promise of the mass digitization and distribution of books.”

Source: Science Fiction and Fantasy Writers

From the Article:

Google’s settlement with authors and publishers to gain copyright licenses over millions of books will expand the underprivileged’s access to information, a group of professors and civil rights advocates argued Thursday.

In a conference call with reporters, a broad group of professors and civil rights leaders said that the important social benefits of the settlement – which would allow Google to make millions of out-of-print books accessible online – are getting lost in the discussion of the settlement, which has drawn a fierce group of critics hoping to block a federal court from approving it.

Google helped arrange the event, which the participants said they called to bring more attention to the settlement’s benefits. The settlement is scheduled for a hearing at U.S. District Court in New York in October. Parties have until next Tuesday to file briefs for or against the settlement with the court.

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But those with a different view are now speaking out too. Lateef Mtima, a law professor at Howard University School of Law, said on the call that the settlement will “bridge the digital divide” by giving students without access to fancy libraries exposure to a broad range of texts over the Web.

See Also: (via Info Today)

Source: Wall Street Journal
Hat Tip: B.Q.

From the Article by Bill Thompson:

But whatever the detail there remains a fundamental problem. It is not that the settlement will give Google indemnity from prosecution should it be found to have scanned books that are in copyright without the copyright owner’s position, nor even that it gives Google freedom to exploit scanned content commercially.

It is, rather, that the settlement gives only Google these privileges, and places one company in a prime position to become the world’s de facto librarian instead of encouraging open access, open standards and a plurality of services and service providers.

Neither Google nor any other company should be entrusted with that responsibility, and nothing in the detail of the agreement or the funds that will be made available to authors as a consequence can change this.

If Google is given a monopoly, either explicitly in the settlement or implicitly because any other scanning project would be forced to negotiate its own multi-million dollar agreement, then the deal must be rejected.

[Snip]

For those who take that view then letting Google pay to digitise books is an uncontroversial decision, one that can deliver more digital stuff to search through without apparently costing anything.

George Santayana wrote ‘those who cannot remember the past are condemned to repeat it’, but it may also be true that those who do not care to digitise their own past will end up paying a high price to regain what they give up so thoughtlessly.

If we let Google have its settlement we will all be the poorer. Not for a while, perhaps, but one day we will need more from this new library of Alexandria than Google is willing to offer, and find that the price it demands is more than we can pay.

Source: BBC

UPDATE (9/4/09): Turning the page on Google books (via BBC)

After my criticism of the proposed Google Book Search settlement was published on the BBC News website [see post above] Google offered the opportunity to talk about my concerns with Santiago de la Mora, the company’s director of book partnerships in Europe.

From the Post:

Amazon.com has formerly registered its objection to the Google Settlement with the US court that will preside over the Fairness Hearing next month.

In a 50-page legal document, filed yesterday (1st September), Amazon said the agreement was “unfair” to other rights holders, gave Google “an effective monopoly” over scanned in works, and would create “a cartel of authors and publishers”. It also questioned the legitimacy of the “class action” and warned the court that it was being asked “to exercise powers that it does not have” stating that the agreement “restrains competition in ways that ought not be sanctioned by this court”. …

Amazon said that it recognised the “surface appeal of the proposed settlement”, and “has long supported efforts to pass copyright reform legislation that would make it easier for booksellers and the public to gain access to these books”. But it said the task of reform had in the past been performed by the United States Congress. It stated: “Class actions, though a common vehicle to challenge the infringement made possible by new technologies, have never until this case been used to set out nationwide the rules and regulations by which use of those new technologies would be determined to be lawful or unlawful.” It added: “Class actions can resolve disputes between parties and can clarify the law for others, but they cannot make changes to the rules in a way that applies evenhandedly to the entire universe of copyright holders and potential users of the new technologies.

Source: Bookseller.com (via Teleread)

Update: If you would like to read/review the full text of the filing you can find it here: Objection of Amazon.com, Inc. to Proposed Settlement

From the Column by Chris O’Brien:

By Friday, authors need to decide whether they want to accept that settlement or opt out and reserve their right to sue Google.

But before then, I think Google should scrap the whole thing and go back to square one.

The proposed settlement has the potential for creating the framework for how books are digitized for the next century. The stakes for readers, authors and libraries are high.

Unfortunately, many on the outside of this process looking in feel like Google’s been throwing its weight around on this issue. Google didn’t exactly help matters in this regard when a spokesman was quoted on a Wall Street Journal blog calling one opposition group the “Sour Grapes Alliance.” Gee, I wonder why some folks think Google can be arrogant?

It’s a shame that it’s come to this, because of the amazing potential behind this idea.

Source: San Jose Mercury News