Archive for the ‘Google settlement’ Category

Google wins appeal

October 17, 2015

Google wins appeal

It’s been almost two years since I last wrote about legal challenges to Google’s book scanning activities…and I started writing about it more than four years before that.

What’s changed in those two years?

Not much…and that’s important.

According to this

Associated Press article by Larry Neumeister, reproduced in CBC News

and other sources, the 2nd U.S. Circuit Court of Appeals has upheld Judge Denny Chin’s decision that the way Google is scanning and distributing books falls under Fair Use, meaning that it does not infringe on the rightsholders’ rights.

Here is the actual


rendered today, October 16th, in the Authors Guild vs. Google, Inc.

Here’s the sum up:

“The Court of Appeals concludes that the defendant’s copying is transformative within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-585 (1994), does not offer the public a meaningful substitute for matter protected by the plaintiffs’ copyrights, and satisfies § 107’s test for fair use.”

This short excerpt, however is where I at least emotionally am in a different place than the court:

“Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”

It brings up the basic  dichotomy.

We use the term “copyright protection”, and that’s how I think of it…as protection for the authors’ intellectual property from unfair exploitation.

The other side of it is that copyright law is intended to benefit the public…and that could be at the expense of the individual.

How does enabling an author to get compensation help the public?

It does it by encouraging the creation of more works.

It also, very specifically, sets a limited time for the author to benefit from that work…and then it becomes owned by the public (it becomes part of the “public domain”).

Now, I am a reader and a writer, so I think to some extent I can see both sides.

Do I take advantage of the public domain and Fair Use?


I love being able to read free public domain “classics” for free.


I play within the rules. I like rules. I used to manage a gamestore, and rules are what make games fun.

That doesn’t mean, though, that I wouldn’t be interested in having the rules change.

More than five years ago, I wrote one of the posts that got me the most pushback:

Should copyright be permanent?

It explores the idea that copyright should be permanent, in exchange for more Fair Use.

Over this half decade, I’ve started to like the idea more.

Schools would be able to use current, copyrighted works for educational purposes without paying for them.

A hundred years from now, though, the movie of The Martian could still generate money for a rightsholder.

One immediate response to that people make: it would be a corporation making the money, not the author or the author’s descendants, in most cases.

That assumes the older model: the creator sells the rights to a publisher/distributor.

That may be less true over time with authors independently publishing, and keeping those rights for their descendants.

Regardless, my feeling is that the public doesn’t have an inherent right to a “shared culture” without recompense.

It just doesn’t feel right to me that eventually, Shakespeare belongs to everybody.

I’m sure many of my readers will disagree with that, and that’s fine with me.

I’m not saying I’m right and other people are wrong…I’m just trying to communicate how I feel about it.

It’s also important to note that this decision doesn’t say that Google can copy authors’ books and distribute them in full without the authors’ permission.

It does say they can copy them…even give a digital copy to a library.

They seem to be arguing that it is distributionright, not copyright. :)

They (it’s a three judge panel, with the decision written by Judge Pierre N. Leval) make it clear that a profit motive is not a barrier to Fair Use.

That’s also something that should be said unequivocally. When you see Saturday Night Live doing a parody, they are certainly doing it with a profit motive. That doesn’t mean that they aren’t also driven by a creative impulse, but there is nothing wrong with making a profit off Fair Use.

Could the Authors Guild appeal this to the Supreme Court?

Sure…they promote themselves as an advocatory agency, and one place advocation happens is in court. Fighting in court helps demonstrate their worth to their members.

My guess is that this won’t be the last time I write about this. :)

So,  what does this mean for you?

It means you can search using Google Books and see a “snippet” of a book under copyright protection without the author’s permission.

It may also increase the likelihood that books survive, because the digital copies Google makes and gives to libraries (the specific library that loaned them the book) is something the library might not have been able to do. Google uses special technology, and can put a lot of money into it.

I want books to survive, of course…but for me, I would rather have a book disappear forever than have it made available to the public against the author’s wishes.

Ooh, it hurts to say that…practically (and selfishly, as a reader), that sounds bad, but for me, ethically, it feels right.

I’m very interesting in hearing what you think. I have intelligent, compassionate readers who may be able to argue for the other side very effectively. Ideally, that’s what I want for my readers…to hear multiple viewpoints ably presented.

Feel free to tell me an my readers what you think by commenting on this post.

Update: thanks to reader Barbara Barry, whose comment helped improve this post.

Join thousands of readers and try the free ILMK magazine at Flipboard!

* I am linking to the same thing at the regular Amazon site, and at AmazonSmile. When you shop at AmazonSmile, half a percent of your purchase price on eligible items goes to a non-profit you choose. It will feel just like shopping at Amazon: you’ll be using your same account. The one thing for you that is different is that you pick a non-profit the first time you go (which you can change whenever you want)…and the good feeling you’ll get. :) Shop ’til you help! :) By the way, it’s been interesting lately to see Amazon remind me to “start at AmazonSmile” if I check a link on the original Amazon site. I do buy from AmazonSmile, but I have a lot of stored links I use to check for things. 

This post by Bufo Calvin originally appeared in the I Love My Kindle blog. To support this or other blogs/organizations, buy  Amazon Gift Cards from a link on the site, then use those to buy your items. There will be no cost to you, and a benefit to them.

Google FTW! Judge Chin rules

November 14, 2013

Google FTW! Judge Chin rules

Thanks to reader Evan for the heads-up on this!

I first wrote about the Google settlement more than four years ago (and it actually started back in 2005), and it’s been ongoing (off and on, at least) since then.

Now, according to this

Reuters article by Jonathan Stempel

and other sources, Judge Chin has now ruled that Google’s scanning of copyrighted works, and subsequent specific use of them, falls under Fair Use.

Here is the actual

opinion in PDF

I’m looking forward to reading it, but I wanted to give you a chance to see it right away.

Skimming it, and particularly the argument that what Google did is “transformative”, lets me give you a quick, preliminary sum up now:

  • What Google did transforms the works
  • It doesn’t replace the original works
  • It’s good for society
  • It doesn’t show harm, and probably helps copyright holders

Again, that’s just preliminary…I’ll read through the whole thing when I can.

The Authors Guild is likely to appeal this dismissal of the case (legal advocacy is one of the main things they do).

I think this might have far-reaching implications in terms of making things (indexes, snippets) available on line without the rightsholders’ permission, but we’ll see…

* FTW = “For The Win” (internet slang)

Update: I’ve now read through it. Judge Chin’s point by point analysis of the Fair Use application to this (and that’s the key…every point is supposed to be satisfied in Fair Use) will be the crux of any appeal, I think. Some of it feels a bit subjective to me, and that’s one of the frustrating things about copyright. It isn’t usually a simple mathematical answer…it’s fuzzy.

I could see this being used to further the idea that people can digitize their own p-books (paperbooks) for their own use. Judge Chin seems to make the point that if you already own the book, you aren’t infringing on the copyright if you make another copy for your own use. Judge Chin says:

“…the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.”

This seems to suggest to me that when you own the p-book, you can create an e-book copy for  your own use without interfering with the market for the book. That might seem obvious, but it would be great to have that established in precedent. This doesn’t do that,but it might be cited by someone trying to establish home digitizing for personal use as Fair Use.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog. To support this or other blogs/organizations, buy  Amazon Gift Cards from a link on the site, then use those to buy your items. There will be no cost to you, and a benefit to them.

Round up #117: NOOK Media spun off, Google deal…sort of

October 7, 2012

Round up #117: NOOK Media spun off, Google deal…sort of

The ILMK Round ups are short pieces which may or may not be expanded later.

Google settles with some publishers

I first wrote about a settlement between Google and groups that objected to Google’s project which involved scanning books more than three years ago. This is my eleventh article addressing it.

It’s still not over…the Authors Guild isn’t done with this, for one thing.

There are some really important elements to this, and unfortunately, a settlement means those don’t get addressed in a way that would provide effective case law, as I understand it (I’m not a lawyer).


ReadWriteWeb article

by Antone Gonsalves talks about Fair Use in the digital world, and that’s going to make a difference in your life going forward.

What is Fair Use?

It’s basically a statement by the Copyright Office that certain uses are not protected under copyright law…that’s it’s fair to use a copyrighted work without getting permission from the righstholder if that use fits take into consideration four specific rules:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Since all four elements are supposed to be taken into account, that would suggest that it’s never okay to copy an entire work.

However, it was allowed that we can “time shift” TV programs using VCRs (videocassette recorders) and then later technologies , which record the entire program.

There are people (even companies) now that say it’s okay to scan a copy of a paperbook you own to digitize. I don’t think that’s really been finally codified…and this settlement doesn’t do that.

As to the deal, here is the AAP (Association of American Publishers) statement:

From what we are being told, the publishers seem to have solidly won…they can exempt their books if they want.

Looking at the statement, I think that Google will have to get case by case permission. That’s been one of the key points…can Google display books until somebody tells them to remove them, or do they have to get  permission first?

For me, that’s what made the original agreement unacceptable…that so-called “orphan books” (those where no one can be found to “speak for them”, even though the book is still under copyright) could be displayed without first getting permission.

I don’t think the Authors Guild will quickly follow suit here, but we’ll see.

Eventually, I do think it will be established that we can “format shift” our p-books (paperbooks) into e-books, and that we’ll get technologies that will make that fairly simple. However, I hope that orphan books can’t simply be published without permission of the author/estate, without a significant revision of copyright.

NOOK Media spins off from Barnes & Noble

When Microsoft poured hundreds of millions of dollars in to B&N, it was clear that separating the NOOK and NOOKbooks from the regular bookstores was going to be part of the deal eventually.

Well, that’s here:

B&N press release

I have to say, if I was working in on of the brick-and-mortar stores (I’m a former bookstore manager and worked other positions before that), I’d be worried.

“So, look, um…Superman…we’re splitting you into two parts. I’m taking the flight, the invulnerability, the heat vision, the x-ray vision…all the visions, really, the super hearing, and the super speed.”

“Uh…what do I get?”

“Vulnerability to Kryptonite.”


This is not a complete financial separation, and the stores will continue to sell NOOKs. I don’t know if that will give the stores enough time to evolve into something that can survive the current and near future changes in retailing paperbooks locally, but we’ll see.

Oh, by the way…NOOK Media also took the College stores. In years past, those have provided some strength, now removed from the trade (general) stores.

Photo Editor 1.3.3

I’ve found a free camera app for the

Kindle Fire HD

that I like. I haven’t figured out where it stores the pictures on the Fire (why is that so hard?), but it does e-mail them nicely and they look good. It includes a lot of effects and editing, including a “sketch” mode similar to Paper Camera.


Photo Editor

As regular readers know, I’m not that big on images, so if somebody who does really care about photo quality checks it out, I’d be interested to hear what you think about it.

I did take a picture so you can see it…this is an early 20th Century cover of the Wizard of Oz, so it’s in the public domain:

Another recent free app that I got that I like is a simple battery monitor,

GSam Battery Monitor

It does give me statistics, which interest me more than images. ;)

For example, the system app took 9.0% of my charge life, and the app Dabble took .5%. The screen took 6.4%.

It tells you how much time you have left when charging to get to complete.

I think the feature most people will like best, though, is that it can play a sound (including a music clip) when the battery hits 100%. As many people have commented in the forums, the HD doesn’t have a charging light, so you can’t really tell when it’s at 100% without powering it up and going through a few clicks. This way, I know when it’s 100% charged without doing anything active.

Kindle DX now $299

Thanks to Andrys Basten of the A Kindle World blog for the heads up on this! The

Kindle DX

the large screen RSK (Reflective Screen Kindle) was $379, so that’s a $80 price reduction. This doesn’t look like a temporary reduction, but it’s hard to tell that.

You can also have the DX shipped to a variety of countries.

Thanks, Andrys!

In case you thought I got special treatment as a blogger…

my shipping date for my Kindle Paperwhite 3G, 6″ High Resolution Display with Built-in Light, Free 3G + Wi-Fi – Includes Special Offers still hasn’t changed. ;) I’m still looking at October 16th…anxiously awaiting it, though.

What do you think? Will the brick-and-mortar Barnes & Nobles survive…and if they do, will they keep carrying paperbooks? Is it okay to digitize a paperbook book you own for your own use? Do you love your Kindle DX? Feel free to let me and my readers know by commenting on this post.

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

Round up #89: more from Judge Chin, Microsoft’s tablet

June 19, 2012

Round up #89: more from Judge Chin, Microsoft’s tablet

The ILMK Round ups are short pieces which may or may not be expanded later.

Microsoft’s tablet Surfaces

Microsoft called a big presser today…and revealed that it’s going to do two tablets…later.

They didn’t give prices, exactly, but people do seem to be impressed with what they heard.

There are two things that particularly relate to e-books and EBRs (E-Book Readers); will it compete with the Kindle Fire; and did they tie it into their deal with Barnes & Noble?

On the second one, nope.

$300 million dollar investment in Barnes & Noble…not to mention them in your tablet announcement?

Maybe that doesn’t mean anything, but it makes me a bit uneasy about B&N’s future.

As to the Fire…

It sounds to me like it will cost a lot more. I don’t think Microsoft is entering the entertablet market. I think they may actually be after the laptop market.

Here are the stats:

Oh, and it’s called the Microsoft Surface.

More from Judge Chin…

The legal issues about Google having scanned books just keep going on and on…

Publishers Weekly article

This one isn’t exactly about the Google settlement, but Judge Chin did not except Google’s request to throw out a class action suit by authors…which just keeps things going.

Really, I’m hoping that the Agency Model stuff and the Google scanning concerns get legally settled this year.

You might think that won’t be the case, because it’s an election year, but the judicial system isn’t really supposed to be influenced by that. I think many courts like to show that they aren’t waiting for an election, and may make big decisions at a time when Congress is reluctant to do so.

Update: PW thinks the DoJ trial might start next March (2013), but it is complicated:

Publishers Weekly article

Amazon tablet rumors

I have to say, if I reported every Amazon tablet rumor, I couldn’t keep this blog as varied as I like (and I think you like that way, too).

I still think we’ll get big announcements from Amazon soon, before the end of the summer. That might just be a frontlit RSK (Reflective Screen Kindle) or two or more of them. It might be big updates for existing devices (including text-to-speech for the Kindle Fire that works with Kindle store books).

My guess is still that we’ll get a new tablet announcement soon, too, but I’m not 100% confident. I also reiterate that I would expect it to be at least three tablets: a higher end one the size of the Fire; an entry-level larger device; and a high-end larger device.

Here’s one rumor:

TheNextWeb article

and here’s another:

DailyTech article

Not surprisingly, they are contradictory. :)

Honestly, we’ll just have to wait and see. I’d put a high probability on frontlit RSKs before the end of the summer, and a more than 50% chance as a guess on tablet announcements in that time frame.

I checked the

ILMK E-books Timeline

to see when product announcements had come in the past:

  • November 19, 2007: Kindle 1
  • February 9, 2009: Kindle 2
  • May 6, 2009: Kindle DX
  • July 28, 2010: Kindle 3
  • September 8, 2011: Mindle, Fire, Touch

As you can see, a summer announcement is not out of the question. They don’t just hold things for the holiday season.

recently wrote about the US State Department contracting with Amazon for Kindle services. The “justification” document for the deal includes this:

“e-Reader updates:

The Contractor shall be responsible for upgrading and phasing in updated versions of the e-Reader product at least every two years so that the technology stays up to date for users.”

So, Amazon has agreed to provide “updated versions e-Reader product” at least every two years to the government…and you can bet we’ll get them, too. Reading that language, I wouldn’t say they just mean software updates.

Are you ready to buy a new model of a Kindle every two years to stay cutting edge? I probably will…I like to be able to answer questions for people, although I haven’t owned every model (never had a DX).

What do you think? Is the Microsoft Surface a concern for Amazon? Can Microsoft compete with Apple in the tablet arena? Will any of the big legal e-book stuff settle this year? Feel free to let me and my readers know by commenting on this post.

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

Flash! Google settlement rejected by Chin…next deadline is July

September 15, 2011

Flash! Google settlement rejected by Chin…next deadline is July

I’ve written a lot about the “Google settlement”. It seems to be going on and on, and was just extended today by Judge Chin until July 2012:

Baltimore Sun article

It’s an important case, so I guess it is good they are being thorough :) The legal fight of Superman versus Captain Marvel took more than ten years to settle…

What’s it all about?

Here’s a brief summary (see those other articles for more detail):

Google was scanning paperbooks to digitize (turn them into e-books). The Authors Guild and others sued them, saying it was an infringement of their copyrights. They settled, with a complex agreement that included creation of an entity to process claims for copyrights.

The judge rejected that settlement…one of the key issues has been the need for authors to “opt out” of the settlement, or their works are included.

The two sides now have until July 2012 to present arguments again.

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

Flash! Judge rejects Google Settlement

March 23, 2011

Flash! Judge rejects Google Settlement

I’ve written quite a bit about the Google Settlement.

The last time I wrote it about significantly as April 23, 2010, when the judge in the case was confirmed to the District Court.

We’ve basically been waiting since for somebody to rule on the Amended Settlement Agreement.

For a fairly extensive overview, I’d start with this previous post.  For now, I’ll give you a basic rundown.

Google was scanning books in library collections.  They even patented (very clever, in my opinion) technology to do it.  They basically claimed they had the right to do it under Section 107 of Title 17 (US copyright law).  That’s the Fair Use section.

The Authors Guild and the Association of American Publishers said that Google did not have the right to scan copyrighted books without permission of the rightsholders.

The AG and AAP sued.

In a settlement agreement (which was amended), the three parties worked out a future arrangement that allowed Google to scan books if it could not locate the rightsholder, sell the books, and if somebody eventually showed up and proved they owned the rights, pay them. 

I wasn’t in favor of the settlement.  I don’t think a single company should have the right to print unauthorized editions.  I do understand the value of “orphan book” legislation.  Orphan books are those under copyright protection, but which have no one to speak for them.  I’d be okay with Congressionally-passed orphan law legislation that carefully protected the rights of the authors.  I’d be less okay with it if it was retroactive, but I know it might be.

We’ve been waiting for something like a year for Judge Chin to rule on the fairness of the Amended Settlement Agreement.   Amazon, Microsoft, and individual authors had offered opinions to the court.  The Department of Justice had also expressed concerns about it.

Judge Chin filed his decision today:

The key statement?

“The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far.”

I essentially agree with that statement, although I know many people will be disappointed.

If the ASA had been approved, it would probably have meant more e-books would be available to us sooner.

We will probably have to wait for some other resolution to the orphan books question before we get those books.

However, I do think it wasn’t fair to authors who didn’t participate in the ASA.  Since it was an opt out situation, it committed people to an agreement in which they hadn’t had a part.

I do think, though, that even people who don’t like this decision will be happy to see that some decision has been released.  This now means that other approaches can be tried. 

For more informaton on the Google settlement, see this category.

What do you think?  Do you agree with Judge Chin?  Do you think Google was trying to exert rights that belonged to authors, or that they were serving the public good?  Feel free to let me know.

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

Flash! Denny Chin, Google settlement judge, confirmed to District Court

April 23, 2010

Flash! Denny Chin, Google settlement judge, confirmed to District Court

We knew he was nominated, and there was speculation that he would want to complete the Google settlement question before he changed jobs.

First question: why am I reporting a judge issue in an e-book blog?

I’ve written quite a bit about the Google settlement, and that is a complex issue that will affect what you read, and potentially affect authors even more.

When the presiding judge in a case changes, it can certainly change the decision.  Not that the judge necessarily favored one side, but different judges are more convinced by different types of presentations.  Although it isn’t a surprise, it might change any additional arguments that are made.

So, although you are going to hear him called the “Bernie Madoff” judge, it’s the Google settlement part that ties into e-books.

Wall Street Journal article

Thanks to Andrys Basten of A Kindle World for the heads up on this.

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

Update on the Google Settlement

February 17, 2010

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.

Flash! Revised Google settlement filed

November 15, 2009

Haven’t had a chance to read the Amended Settlement yet…

Publishers Weekly article

I’ll comment more when I’ve looked at it.  :)

Here’s a link to a zip file of the: Amended Settement.

They are also asking for approval of this: Supplemental Notice.

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

The Department of Justice comes down against Google settlement

September 21, 2009

The Department of Justice (DoJ) has filed a statement in the Google settlement case

It’s important to note that they are not making a decision in the case, merely stating their opinion to the United States District Court, Southern District of New York, as many others have done. The latter court will have a “Fairness Hearing” about the settlement on October 7, 2009.

The thirty-two page document, authored by William F. Cavanaugh (Deputy Assistant Attorney General, Antitrust Division), Preet Bharara (United States Attorney for the Southern District of New York), and John D. Clopper (Assistant United States Attorney), will presumably carry more weight than some of the others.

In fact, my guess is that some commentators will see this as a test of the current administration’s influence.

I won’t say I’ve read a lot of Department of Justice documents ;) , but this struck me as unfailingly polite. It sort of seemed like a police officer coming up to somebody and saying:

“Gee, I hate to mention this, but your car is parked next to a fire hydrant. That appears to me to be a violation of Civic Code THX1138. If you don’t move your vehicle, it may be necessary for me to give you a ticket. I’m looking forward to you taking action to resolve the situation.”


For example, there is this early comment:

“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.”

In other words, “Even though Google has to pay up to thirty million dollars in legal fees to the other side, all those high-priced lawyers couldn’t figure it out like we can.”


I’m going to give you a rundown of the document: just my own summary, with some brief excerpts as highlights.  You can read it yourself here.

The document starts out by talking about the potential benefits of the settlement.  They say that it has “…the potential to breathe life into millions of works that are now effectively off limits to the public.”  They also talk about the advantages to those with print disabilities, and how clarifying copyright status and ownership works for out-of-print books would be a “welcome development”.

They contrast that with their concerns.  The first is one that I’ve expressed before: this is a matter that should be handled by the Congress, rather than by private parties.  They are also particularly concerned about what is called “Rule 23” (more on that later…it has to do with class action suits being fair to everybody in the class), copyright law, and antitrust laws.   They say simply:

“As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.” 

They are also concerned about the settlement affecting future activity, not just past conduct.  That’s not a deal-killer, but an important point.

They say they are guided by three principles: 

  1. Getting books digitized and out there, especially for people with print disabilities, is a good thing :)
  2. Consumers deserve a competitive marketplace
  3. Rule 23 needs to be used to make sure rightsholders who weren’t part of achieving the settlement are protected

They suggest that the best thing would be for the two parties to keep talking and come up with an improved settlement that satisfied all the concerns. They say

“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.”

They then go on to discuss their concerns.

Rule 23

The basic set-up here is that a class action suit has to take care of all the members of the class.   The main concern is that the arrangement between Google and the Registry will allow them to benefit from the works of “absent members”, unless those absent members opt out.   They are also concerned that affected people may not have been properly notified…given the number of people who have written things that still have copyright protection in the world, that’s a lot of people to send letters. 

They discuss a range of possible problems, and aren’t as concerned about some things as others.  However, their biggest concern is this:

“…essentially authorizing, upon agreement of the Registry, open-ended exploitation of the works of all those who do not opt out from such exploitations. See Proposed Settlement Agreement, dated Oct. 28, 2008 (“S.A.”) § 4.7 (allowing the Registry to authorize future business models without any class notification). Such licensing is far afield from the facts alleged in the Complaint. And the rights conferred are so amorphous and malleable that it is difficult to see how any class representative could adequately represent the interests of all owners of out-of-print works (including orphan works).”

They are also worried that rightsholders of in-print and out-of-print works are treated very differently.  Google has to work with rightholders of in-print works, but not of out-of-print works.  They point out that rightsholders for orphan works are a huge and wildly diverse group. 

“Moreover, no amount of notice is likely to protect those orphan rightsholders who are unaware of their rights or unclear how or whether they want to exploit them. Yet, if an out-of-print copyright owner does not come forward within five years, profits from the commercial use of the out-of-print work are distributed to pay the expenses of the Registry and then to the Registry’s registered rightsholders.”


“…the Registry and its registered rightsholders will
benefit at the expense of every rightsholder who fails to come forward to claim profits from Google’s commercial use of his or her work.”

So, one of the concerns is that the present rightsholders can say whether or not they want things done, but the absent ones who don’t hear about it or don’t opt out don’t control it.  The present rightsholders benefit from the exploitation of the non-present ones.

They say that the parties to the agreement say essentially that, “Hey, there will be money for people who wouldn’t have it otherwise, so they’ll want to come forward.” But, the DoJ points out that you can’t just hope that will happen. They also say that the fact that the rightsholders might be compensated for “…a fundamental alteration of their rights” doesn’t prove that the folks whose rights are staying the same (or who can easily have them stay the same) are representing the other ones…especially when they can benefit from that alteration of rights.

Secondly, they worry about international rightsholders.  They clearly weren’t represented in the settlement, and other countries have been expressing their concerns about it. 

Third, the class of rightsholders that could be affected is so broad (including foreign rightsholders who may not have even decided to publish in the US yet) that it would be really hard to give sufficient notice.  They are careful to say that they don’t know that sufficient notice wasn’t given, but that the issue should be carefully examined.

They then go on to make some suggestions that could make the settlement compatible with Rule 23.  Changing it to an “opt-in” rather than an “opt-out” would help.   They also seem to use the parties’ own words…the parties have been arguing that most people will want to join in, and won’t be as hard to find as people think.  If that’s the case, why not change to opt-in? 

Other possibilites are to extend the deadline, put other representatives in place, use the money differently, and so on.

They say they are looking forward to more ideas from the parties.


They say that there are still investigations on-going, but that they can make two main points now. 

 1. Book publishers appear to be able to “restrict price competition”.  Wholesalers aren’t allowed to dictate to retailers what their prices can be.  They can set “suggested retail prices”, but can’t fix the sale prices. 

Competitors can’t get together and set prices.  The DoJ says:

“…the parties contend that the Proposed Settlement’s pricing terms should be viewed not as a form of horizontal collective action by publishers and authors actionable under Section 1, but simply as a unilateral offer by Google to each individual rightsholder to contract on specified terms. The Department is not persuaded by this description.  Class representatives – who compete with each other – collectively negotiated these pricing terms on behalf of all rightsholders. That some individual authors or publishers might opt out of those terms does not make them any less the product of collective action by competitors.”

A comparison is then made to the music licensing groups, like BMI and ASCAP.  They explain why it isn’t the same, for a number of reasons.

The DoJ also has concerns about there being a set royalty rate.  They point out that is anti-competitive, and appears to be unnecessary, since millions of e-books are available without a set rate.   You also can’t make the deal based on the fact that it saves transaction costs: those are deemed to be worth it in most cases in retail. 

The agreement also has a price-setting algorithm and a limit on discounts, both of which are not okay. 

There is also this:

“The Registry is effectively controlled by large commercial publishers. Allowing it to set the prices of orphan works effectively allows known rightsholders to choose the price at which their competitors’ books (those of unknown rightsholders) are offered for sale. Citizen Publ’g, 394 U.S. at 134-135 (joint sales of newspaper advertising and subscriptions by competing newspapers held to be “plain beyond peradventure” per se violations of § 1). Known rightsholders would appear to have every incentive to ensure that the orphan works will not offer effective competition.” 

2. They worry that the settlement will restrict competition.

They make a point I’ve made myself.  The settlement does allow the Registry to license the works to competitors of Google.  However, that is limited by the rights granted to them under the law, which may be insufficient.  They put it this way:

“The Proposed Settlement appoints the Registry to negotiate with Google on behalf of the entire class regarding new commercial uses of digital books, and releases Google from any copyright liability arising from those new uses. S.A. §§ 4.7, 10.1(f), 10.2(a). The Proposed Settlement does not forbid the Registry from licensing these works to others. But the Registry can only act “to the extent permitted by law.” S.A. § 6.2(b). And the parties have represented to the United States that they believe the Registry would lack the power and ability to license copyrighted books without the consent of the copyright owner – which consent cannot be obtained from the owners of orphan works. If the parties are correct, the Registry will lack the ability to provide competitors with licenses that will allow them to offer to the public anything like the full set of books Google can offer if the Settlement Proposal is approved.”

They go on to talk about how it would be prohibitively difficult for a competitor to get the same (or a better) deal.   They bring up the Sherman Act, and talk about how this could lead to “market foreclosure”, effectively preventing other folks from getting into the act. 

“Consumers may benefit from the creation of digital libraries that would not otherwise be feasible, but they should not be required to pay the price of eliminating competition among authors and publishers on the one hand and de facto exclusive control of the library by Google on the other.”

They then bring up two additional considerations.  One is that this would make books more available to the disabled…that’s specifically built into the agreement. The second (and this will please a lot of people) is that the books should be available in “multiple, standard, open” formats.

“Once these books are digitized, the format in which they are made available should not be a bottleneck for innovation.”

I say that means we should have them in a Kindle-compatible format.  ;)  I know we can convert EPUB, but a little unprotected mobi action would be nice…or even text files.

The DoJ Conclusion:

“This 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 Rule 23 and the copyright and antitrust laws.”

My Conclusion

You know, at least to this blog post.  :)  Some people are painting this as Google wanting to make books available for free, and Amazon wanting to stop them because they want to sell the books.   They make it “populist Google” on the one side, and “corporate Amazon” on the other. 

It’s nowhere near as simple as that.  A lot of us onliners like to think of the internet as “power to the people”.  After all, you don’t need a big studio to make a movie, or a record company to make a song…or a publisher to get your book out there.    With the internet, you can reach the market with no one in-between. 

However, while the DoJ clearly agrees that making books available on the internet is a good thing, they don’t think that this agreement (the way it stands) is the way to do it, because it’s got problems. 

If this settlement is not approved, I still think you’re going to get those books out there.   That 1935 self-published book on how to save the Music Hall now that radio is here?  You’ll get it.  Volume 27 of the “Adventures of the Ballyhoo Boys”?  The one that sold ten copies…and all of those to the author’s relatives?  Yep, that’s coming, too.  The 1962 “Road Atlas of Zanzibar”?  Sure, why not?

I think we just have to be careful that we don’t give up too much and create too much of a mess so we can get what we want…and what’s going to come eventually anyway.

I’ve got plenty to read…I can wait a little while for a better solution.

UPDATE: After this statement from from the DoJ, it appears that Google and the Authors Guild want more time to do a rewrite to address the above concerns.  I’m thinking that “opt-in” rather than “opt-out” is a possibility, along with some other tweaks.

UPDATE: The fairness hearing has been delayed.  No new date has been set…it may take awhile to rewrite the agreement.  It wouldn’t surprise me if it takes a year, although it could certainly be faster than that.  Presumably, more money for the lawyers: gee, I wonder if Google will have to pay more for the other side’s legal fees.  :)

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


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