Update on the Google Settlement

This Thursday, February 18th, is the next important date in the Google Settlement saga.

It matters to you, as someone interested in e-books, but also to people who read books in any medium.

I’ve written about the settlement before, notably in these posts:

The Right to Not Copy (September 7, 2009) 

In the Settlement (September 17, 2009) 

The Department of Justice comes down against the Google settlement (September 21, 2009) 

Flash! Revised Google settlement filed (November 15, 2009)

Flash! Publishers say no to Google on several issues (February 10, 2010) 

As you can tell from that, there has been a lot to say.

As we come up to this next step, I thought it was worth recapping this. 

Here’s the story in a nutshell.

Google was scanning paperbooks, converting them into digital books.  They even patented technology which makes it easier to do.  That, by the way, is pretty cool technology.  It has to do with adjusting for the natural curve in an open book.  If you don’t do that, it makes it hard for Optical Character Recognition (OCR) software to figure out what the letters are, especially towards the gutter (the inside edge of the two pages of the book).  What they do is project a grid on the book, and the software can figure out how much the grid is distorted by the curvature, and adjust for that for the letters.  Very clever, and it apparently works well.  One of the nice things: this means you don’t have to tear a book apart to scan it, which is what some people do.  The book can be undamaged by the scanning process.

They were doing this, at least in part, with the permission of specific libraries. 

Libraries have some legal exemptions that allow them to do things to preserve materials and the access to those materials.

It’s unclear to me whether it would be legal to scan a paperbook you own and convert it to digital for your own use only.  It seems logical that it would be…it would be akin to using your Tivo to record something.  However, copyright law varies for different media, and I don’t believe this right has been firmly established as non-infringing.

The Authors Guild objected, as did the Association of American Publisher and others.  They alleged that this scanning violated the copyright of the rights holders. 

There was a big legal back and forth on it, and the two sides came up with a plan.

Google would pay authors whose works they had already scanned without permission.  Going forward, an organization would be created that would serve as a central point for royalties.  Google would try to locate a rightsholder.  If they couldn’t, they would pay money to this repository, which would distribute it to the rightsholders (if they ever claimed it).

That sounds pretty simple, but it’s really not.  One of the key issues here is that it changes the default.  Without this, the basic argument is that you have to find somebody who is a rightsholder who has to give you permission before you can copy (and make available) something that is under copyright.

The agreement would say that you can try to find somebody, and if you can’t, you can go ahead and publish it.  If they come along and claim the royalties later, you pay it to them.

That may seem subtle, but  it’s a huge shift.  The burden of claiming the royalties switches to the rightsholder (maybe an author, maybe a previous publisher). 

If authors do not want their books to be published somehow, they have to say so to stop the publication…rather than giving permission for publication.

Now, that doesn’t mean that Google can swoop down to a library sale, buy a bunch of old paperbacks, digitize them, and start selling them.  They have to make an effort to find the rightsholder first.  Google is good at searching: if they find that a book is being offered for sale somewhere new (not used), they wouldn’t put up their scanned copy. 

So, they had this agreement.  A judge had to approve to it.  Before the judge decided, lots of people filed their statements on both sides.  That is hypothetically to help the judge in making a decision that is fair.   Amazon, not surprisingly, was against it.  Other groups were against it..and for it…which was also the case with individual authors.

Then, the Department of Justice made their statement.  They had a number of serious concerns with the agreement as it stood.

Google and the Authors Guild (and the others in the suit) asked for more time.  They went back and amended the agreement (which took some time).  They were trying to address some of the concerns raised by the DoJ.

The judge has to approve this amended settlement agreement (ASA).  That hearing is this Thursday, February 18th.

The DoJ made a statement about the amended version on February 4, 2010:

DoJ February 4 2010 statement 

The statement said in part:

“Although the United States believes the parties have approached this effort in good faith and the amended settlement agreement is more circumscribed in its sweep than the original proposed settlement, the amended settlement agreement 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.”

That’s another key point here.

The settlement should, in the opinion of the DoJ, address the original complaint.  The way it stands now, with the formation of this repository, it arguably goes considerably beyond that.

A week later, Google responded with a seventy-seven page statement saying why they were going to let it stand and why they thought they were right.

Google Statement February 11 2010

That’s right…Google did not back off on this.

One reason for that may be that they want Judge Denny Chin, who has been involved from the beginning, to be the judge on this.  He will be on Thursday, but he has been nominated to a Federal Appeals Court position by President Barack Obama.  If that nomination is approved, and the issue is not settled on Thursday, it could fall under a different judge.  That does not mean that Google thinks that Chin is likely to rule in their favor, necessarily…they may just not want to start over.  You get a sense of who a judge is, and your arguments may be written in a way that the judge is more likely to appreciate.

If the settlement is a approved, it may certainly mean that there are more books available more quickly to users of EBRs (E-Book Readers).  There are other ways the issue of “orphan works” (those with no one to speak for them, despite still being under copyright) than this agreement.  If it is not approved, my guess is that something alternative will be developed.

If it is approved, it’s also possible that the government could take further action  in opposition, but that’s unclear. 

I’ll report back after the hearing to let you know what happened…even if it’s just another delay. 

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

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