“Going to the library was the one place we got to go without asking for permission. And they let us choose what we wanted to read. It was a feeling of having a book be mine entirely.” – Rita Dove.  Unfortunately, the Authors Guild, an authors’ advocacy group, does not want library patrons to access books without its permission.  The Authors Guild filed a lawsuit against five universities and the HathiTrust last week.  Although the reasoning in its complaint is flawed, the Authors Guild successfully prevented access to numerous literary works that were set for digital release.   

If you have not had a chance to play with the Library of Congress’ new National Jukebox, stop reading this post and do it now.  The Jukebox is an amazing project that makes over 10,000 historic sound recordings from 1901 to 1925 available online.  These recordings, which span genres from opera to whistling (its own category) to novelty songs to speeches and everything in between, are fantastic examples of what is possible when you combine rich historical archives and the internet.  However, this project comes with a curious asterisk.

Today Judge Chin released his decision in the Google Books case. This is the biggest development in a while in a saga that has been unfolding since 2004. It’s great the the Judge recognized that Google and the Authors Guild (and the rest of the plaintiffs) were trying to use his court to set public policy, rather than to settle a dispute between parties. Hundreds of authors, academics, librarians, companies, and even foreign governments filed objections to the settlement, and we’re honored that the Judge agreed with us that the agreement, if approved, would give Google monopoly control of orphan works. The public deserves access to these works, but it should come through a change to the law, rather than a private agreement that locks in just one supplier.

"Orphan Works" are copyrighted works—books, music, records, films, etc—whose owner cannot be located. Works can become "orphaned" for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found ... the list goes on. This becomes a problem when a future creator wants to use that work—no future creator is willing to use the orphan work for fear that he/she will have to pay a huge amount of money in damages if the owner emerges.

For the past several days, we here at Public Knowledge have been sitting back being mildly amused by the dust-up over an ASCAP fundraising letter that sought to demonize Public Knowledge, Creative Commons and EFF as "Copyleft" organizations that want to undermine their "Copyright," and want "music to be free."  Now the President of the National Music Publishers Association is getting into the fray, giving a speech about 10 reasons why "enemies" like PK have a "extremist, radical anti-copyright agenda."  How very subtle.

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.