Tag: Orphan Works

Sherwin posted last week about the amended Google Books settlement and our amicus brief expressing our opposition to the settlement as written and our concern that it would lead to a monopoly on providing access to orphan works. The DOJ’s Antitrust Divison has once again weighed in on the settlment (their previous brief is here, with our analysis here). Their conclusions appear to be largely the same as ours: “Although the United States believes the parties have approached this effort in good faith and the [Amended Settlement Agreement (ASA)] is more circumscribed in its sweep than the original Proposed Settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”

Today is the last day for commenters and objectors to weigh in on the amended Google Book settlement before the district court in New York that’s overseeing the case. Yesterday, Public Knowledge filed its amicus brief in opposition to the new settlement.

Our concerns are the same as they were when the settlement deal was first announced—that, if approved, it would result in Google becoming the only company that can sell access to orphan books without risking a massive lawsuit.

Two articles in Sunday’s New York Times might appear unrelated at first, but together they illustrate some interesting points about copyright. The first discussed problems related to getting “backlist books” (books that were published a number of years ago but are still actively being sold) into an ebook format. The second had to do with zombies.

The ebook article was interesting, but it should not have surprised anyone who has been looking at digital copyright issues for the past few years. Actually, it is more of a contract issue than anything else. Before about 1994 publishing contracts did not contain any language that explicitly granted publishers the right to print books in an electronic form.

Late on Friday, a federal court in New York received a new version of the Google Book Search settlement. As with the old version, the new one was drafted jointly by Google and its erstwhile litigation opponents: the publishers and authors who sued Google for scanning their books without permission.

Substantively, the new settlement bears a great resemblance to the old one.

On Friday, the Department of Justice Antitrust Division submitted a “Statement of Interest of the United States of America” to the court about the proposed Google Book Search settlement. Its conclusion: “the Proposed Settlement does not meet the legal standards this Court must apply.” It seems the DOJ shares both our hopes for and appreciation of the Google Book Search service and many of the concerns about the settlement that we expressed in our amicus brief filed two weeks ago.

This Tuesday, Public Knowledge filed a brief asking the court not to approve the proposed Google Book Search settlement as it is currently constructed. The proposed settlement raises significant antitrust and class action procedural concerns. In plain English, these concerns are that the settlement represents an attempt to license a lot of books belonging to people who are unable to protest, set up a system to pay other people for the use of those books, and give a single party the exclusive right to use many of those books indefinitely. Read on for some more detail about our concerns.

But first, let’s be clear: We want online access to all books for everyone. We want a world without orphan works, where one can either find a copyright’s owner and seek to license use of their work, or else that work is available for use by all. We want all books to be made accessible so that the blind can read everything the sighted can. We are happy with Google’s current lawful scanning, indexing, and excerpting of all books, and the ability it provides to locate works which would otherwise lay dormant. We would like to find a way that anyone who wants to can offer the public even more complete access. And we have no doubt that whatever happens, Google will continue to offer searches of all books, offer full, accessible access to the books it has licensed, and find ways to locate as many rightsholders as possible to obtain more licenses.

But access through a single party is not true access: What we do not want is for books to be made available only through a single company that has, through judicial gymnastics, obtained the only possible license to those works. What we don’t want is a system where the books of absent authors are being sold and the unclaimed proceeds are going to those who should be finding those authors in the first place.

Public Knowledge today told a Federal court in New York that the settlement between Google and the Authors’ Guild over Google Book Search should not be approved in its present form. The brief is available here.

In particular, Public Knowledge said it is concerned about the aspects of the complicated settlement that deal with orphan works — works whose copyright holders are unknown or who cannot be found.

PK Deputy Legal Director Sherwin Siy will be speaking at the New York Law Schools “D is for Digitize”. The conference will bring together an interdisciplinary lineup of academics and practitioners to examine the Google Book Search settlement through the lenses of copyright, civil procedure, antitrust, information policy, literary culture, and the publishing industry.

New York Law School
185 West Broadway
New York, NY

The 19th annual Computers Freedom and Privacy (CFP 2009) conference will be at the Marvin Center at George Washington University in Washington, DC, June 1-4, 2009. PK Staff Attorney Sherwin Siy will participate on a panel discussing the Google Book Search settlement at 2:00pm on Tuesday, June 2nd.

George Washington University
Marvin Center & Cafritz Conference Center
800 21st Street, N.W.
Washington, DC

For additional program and registration information please visit the conference website.

This week, the Honorable Judge Chin of the Southern District of New York granted us permission to file an amicus brief regarding the proposed Google Book Search settlement. Since the proposal’s announcement back in October, we’ve been poring over the 320 pages of text and attachments, meeting with parties on all sides of the issue, and weighing the upsides and the downsides of the deal. In the end, we have some serious concerns about aspects of the proposed settlement, and plan to bring those concerns to the attention of the Court before Judge Chin makes a final ruling. On Wednesday, he granted a 4-month extension for those who wish to file, so there is still much to be done, but we thought we’d give you a preview of the issues we plan to raise.