

PDF link to Judge Chin's Decision Rejecting Google Books Settlement - mikecane
http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115

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grellas
Summary of judge's reasoning:

1\. Class actions are meant to resolve past wrongs and not to do business
deals affecting future rights of parties.

2\. Therefore, the best thing to do is take this issue to Congress, which
ultimately has the constitutional power to fashion copyright rights and
remedies.

3\. It is quite unfair to give Google default rights to exploit all works ever
written as to which the copyright holders are unknown. This is unfair to the
authors and it is unfair to Google's competitors.

4\. Opt-out might work well in a typical class action where an individual
claim might amount to a few dollars. It would work a terrible miscarriage of
justice, however, to say that each of the authors who fails to take
affirmative steps to protect his copyright loses such rights to Google.

5\. Unlike the typical class action, the objections made by class members were
numerous, articulate, and strongly asserted. If the class members in whose
name this action is supposedly brought have such strong feelings that it is
unfair to them, that is a very bad indicator concerning the overall fairness
of the settlement.

My personal view: the judge here reacted strongly to the idea that a party
such as Google could engage in mass copying of copyrighted works and then use
the courts and the class action as vehicles by which to foist a forced, global
licensing deal on the unwilling parties affected by its actions.

The only way Google could swing this through this mechanism is if the court
approved the opt-out procedure. Since most parties do not get notice at all,
and most do not opt out, Google would get near-universal control of all
published works by this method.

By declaring that this would only be fair if an opt-in procedure is used, the
judge effectively killed this as an effective mechanism for Google. This means
that no one is bound by the terms unless that party takes proactive steps to
become bound. By definition, then, the authors who do not receive notice, and
all other cases where the copyright holders are unknown, will be excluded from
the settlement and Google will get no rights to their works.

This is a devastating blow to Google's book project. Unless it is overturned
on appeal, it will be very hard to salvage this project (at least in anywhere
near the form Google hopes) given this decision.

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pessimist
If Google had indeed fought the Author's Guild on copyright/fair-use and lost
I would have a lot of sympathy for them. But instead they came up with this
settlement which does IMHO give them an unfair advantage and a de-facto
monopoly, so I am not sad to see the settlement being thrown out of court. You
should not be able to bypass copyright law (even if the law is flawed) this
way.

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anigbrowl
Could be worse - switching from opt-out to opt-in is unlikely to make a huge
difference to Google's bottom line. A bigger problem is dealing with the anti-
trust issues; I'm not sure what remedies would be appropriate or how they
would impact the business model. given that Google's position is built around
US copyright, it may be in the company's interest to deepen its existing
relationship with the Library of Congress.

Theoretically I would have made $75 or so out of the existing settlement for a
little-read tech book I wrote back in the 90s, but I'd rather see it become
available again digitally than worry over payment. I must say I found
navigating the settlement website vastly more pleasant than dealing with the
publisher, who my rights in a much more invidious fashion.

~~~
prewett
A switch to opt-in would make a huge difference in Google having access to
works like yours. People who would be willing to have their work available may
not care enough to go to the web site. Even worse, what about the authors who
are not contactable for some reason. They cannot possibly opt-in.

~~~
anigbrowl
Yes, but I was talking about the difference to Google's _bottom line_. The
unavailability of little-known or orphaned works and/or a somewhat higher
payout for infringement in some of those cases, would not have a very big
_financial_ impact on Google or its book digitization project. An incomplete
collection would be a shame, but Google could continue to scan the works and
just abstain from exploiting or republishing them pending some future
evolution of the legal environment. On the other hand, a broader rejection
which made the project into a potential financial disaster for Google might
have resulted in the whole venture being terminated, a much greater loss for
internet readers.

With few exceptions, the difficult of locating the rights-holders for obscure
and orphan literary works stems from their lack of literary or commercial
value: if the copyright had been worth protecting, someone would have
maintained an active claim of ownership. The number of _valuable_ works whose
copyright owners cannot be located is small - in the worst case, they'll be
inaccessible to internet readers in the short term but will become available
later when the copyright expires. But in most cases, readers won't be missing
much. The truly dedicated can still go to a physical library which has a paper
copy.

You seem to think I prefer the opt-in approach; in fact I was perfectly fine
with the existing settlement offer, and I'm sorry that it has been rejected by
the court. All I am saying is the court's rejection could have been worse, and
Google may choose to live with the loss of the suggested alternative. Now it's
going to go through another year or three of legal wrangling, which will limit
further investment by Google, slow deployment of the technology, and reduce
startup opportunities based on leveraging the Books API.

Nor am I blind to the inconvenience for researchers and scholars that an opt-
in or other limitations might impose. As a matter of fact I'm dealing with
that exact problem right now: there is a book-length government report that I
very much want to study for a personal research project, but thanks to a
legislative scheduling snafu back in 1995 no funds were ever allocated to
print or archive it properly (it's not classified or anything). There is _one_
typewritten manuscript copy stored in the Library of Congress and _one_
photocopy of that stored in an agency archive. That's it - only two publicly
accessible copies exist. There's an interesting backstory, but right now my
choices are to spend $150 to have someone in Washington DC photocopy the whole
thing or to wait until I have time, cash and an excuse to visit DC and spend a
day copying it myself at a (slightly) lower cost. Copyright isn't at issue
here, but trust me, I'm keenly aware of the frustration that arises from
knowing something exists but being unable to easily access it.

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prayag
Another shot in the arm for the author's guild and the copyright champions of
the world.

Its just frustrating how we let these arm-twisting lawsuit-happy sleezeballs
become the gatekeepers of the entire body of knowledge the human race has ever
produced.

~~~
anigbrowl
It's swings and roundabouts. The bad side is the lazy rent-seeking activity,
where publishers collect royalties for longer than the average human lifespan
and generally pass little or none of the proceeds onto the original creator,
often a starving artist. This has gotten to the point of complete regulatory
capture in the US; although the very unreasonableness of the current law is
the greatest factor behind technical progress designed to circumvent it, for
the present it results in a huge economic waste.

On the other hand, it's only very recently that the digital distribution has
become universally available at negligible cost. Up to very recently, the cost
of providing a single copy on demand was so high that only mass production
made any economic sense, and few authors had the resources or desire to invest
the required amounts of time and money. So if it wasn't for the publishers,
humanity's body of knowledge would be all that large in the first place. A few
centuries back, printing and publishing were the edgy disruptive industries
which upset the existing model of hand-copying manuscripts for powerful
patrons like the aristocracy and religious institutions. Rather than worrying
about the general public downloading and copying, those gatekeepers were
worried about the general public having the ability to purchase and read
things for themselves, instead of being told what a priest or sheriff thought
fit for them to know - and a good many publishers along the way paid for their
insistence on democratizing information with liberty or even life.

So their failure to adjust to near-zero marginal costs of copying over the
last ~30 years other than via outsize lawsuits seems relatively mild in the
historical scheme of things. I think the key to speeding this transition is to
provide authors, editors, and other people whose creative work is a necessary
input with better ways to make a living than working for a publisher. Up to
now, marketing and distributing content or creative services (eg editing) has
been too difficult and expensive for individuals to offer a good
return...which is one reason that marketing often accounts for 75% of a
publishing launch budget nowadays.

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microtherion
As much as I personally would prefer an opt-out arrangement, I found the legal
reasoning fairly compelling: The copyright status quo should be changed
through legislation, rather than through a class action settlement favoring
one particular party.

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vessenes
I read 48 pages to conclude the judge would like Google to switch to opt-in
for all works, rather than opt-out. This would probably need to be worded in
such a way that just acknowledges authors could do such an opt-in if they
chose, not putting together the final opt-in agreement in the settlement
agreement.

I believe he would approve such an agreement after reading through his
thoughts.

End story, Google probably will get to pay hundreds of millions to save the
world's books from rotting; they probably won't get to own the digital
advertising rights to all those books de-facto.

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kmfrk
A mod should probably add a (.pdf) after the thread title.

(It's a direct .pdf link.)

