Thursday, 18th February 2010
Google Book Search Settlement Fairness Hearing Has Concluded, Here Come the Reports
UPDATED: February 19, 2010
The Fairness Hearing has concluded. Judge Denny Chin heard 26* comments (21 against, 5 for). We've seen articles mentioning that 27 or 28 people spoke in front of the judge.
Perhaps the biggest news of the hearing came at the beginning when Judge Chin announced that he would not make a ruling today. It's going to take place sometime soon. We haven't seen either a date or a time frame in the press. Here are two quotes from the judge re: not making a decision today.
What follows are several articles, but by no means all of them, about what took place in the court room. The portion of the story you're seeing is just a small portion of the complete.
Selected Comments from the Google Books Court Hearing (via Main Justice)
As they review a transcript, the Main Justice team shares several quotes from today's hearing.
Judge puts off ruling on Google's proposed digital book settlement (via The Washington Post)
While [Judge] Chin did not offer clear guidance into his thinking during the hearing, several lawyers said subtle clues could be drawn from his questions. The sometimes impatient judge took many notes and asked lawyers for Google and its settlement partners -- the Authors Guild and the Association of American Publishers -- about a controversial portion of the settlement that would automatically include the holders of rights to titles unless they voluntarily opt out of the program.
"If you did an opt-in you would eliminate a lot of objections," Chin noted, reiterating arguments from the Justice Department and the nonprofit Internet Archives.
Objectors Outnumber Supporters in First Half of Google Settlement Fairness Hearing, Part 1 (via Library Journal)
Libraries were mentioned frequently, but not necessarily directly represented (only one librarian spoke). Two speakers thought privacy concerns could be fixed, but one was adamant they could not.
Paul Courant, university librarian at the University of Michigan, said that he had discussed his testimony with other librarians at Big Ten institutions, and that they were substantially in agreement with him. He contrasted the many previous digitization efforts made by libraries, in which tens of thousands of books were digitized per year, with Google, which is digitizing the same amount every week. “Broad social progress depends on being able to find, use, and re-use the scholarly record.” He said Google scans “provide part of the solution.”
He argued that the alternative is the status quo, in which the physical and institutional proximity is the only way to gain access. That provides a competitive advantage to the University of Michigan, he said, “but we are happy to forego that advantage.”
He did not mention the issue of institutional subscriptions, which has raised concerns in the library community.
Google Settlement Fairness Hearing, Part Two: DOJ Expresses Opposition; Parties Mount Vigorous Defense (via Library Journal)
Responding to concerns about privacy, Durie said that the book database would be available at public libraries for anonymous use. (She didn’t mention academic libraries, which would likely generate far more use.)
What about people looking from home, asked Chin.
“That may present an issue,” Durie acknowledged, citing the effort to balance security and privacy.
Judge Hears Arguments on Google Book Settlement (via NY Times)
Notes from the Google Books Fairness Hearing (via Go To Hellman)
I got the impression that Judge Chin would like to approve a settlement. At least twice he asked objectors how they would "fix" the settlement to remove their objections. He asked EFF's Cindy Cohn how to fix the privacy problems she called attention to, and he sounded unhappy when EPIC's Marc Rotenberg told him that privacy problems with the settlement couldn't be cured. He asked Irene Pakuscher (representing the Federal Republic of Germany) if the settlement could be fixed to satisfy Germany's concerns about treaty compliance and effective representation. He also wanted to explore with more than one questioner Hadrian Katz' suggestion that all problems would go away if the settlement shifted from being opt-out to being opt-in.
While saying that the [D]epartment [of Justice] “applauds the benefits of mass digitization,” Mr. Cavanaugh said that “our concern is that this is not the appropriate vehicle to achieve these objectives.”
Speaking in support of the settlement, Lateef Mtima, director of the Institute of Intellectual Property and Social Justice at Howard University, said the settlement would aid in the “development of a thriving, vibrant culture.”
NYC judge expresses doubts about Google books deal (AP via Boston Globe)
As the deal stands, Google would be able to use so-called "orphan works" -- out-of-print books whose writers' could not be located -- and the works of other authors who declined to opt-out of the agreement after learning about it.
"I would surmise that Google wants the orphan books and that's what this is about," Chin said.
Google book settlement draws fire in court (via CNET)
Supporters of the settlement told Chin that Google was preparing to usher in an era of free-flowing information like the world has never seen. Google could help span the digital divide and hand the public better access to information if it were allowed to create a digital archive, said Lateef Mtima, a law professor at Howard University and director of the school's Institute for Intellectual Property and Social Justice
Nothing drew more fire than the settlement's plans to force authors to "opt out" in order to prevent Google from scanning snippets of their books. Critics say that Google has everything backward here. They ask why is it that authors must go out of their way to opt out in order to prevent Google from exploiting their work?
Doesn't copyright law already require that they give their permission first before someone can license their work?
William Cavanaugh, an assistant U.S. attorney general told Chin that the publishers and the Authors Guild do not have a right to enable a third party such as Google to use an author's work without their permission. "This (settlement) has the effect of rewriting contracts," said Cavanaugh, who also told the judge that the government continues to investigate whether the agreement violates antitrust laws.
At Google Fairness Hearing, DoJ Justice Slams Settlement (via Publisher's Weekly)
The strongly argued objections of the U.S. government came after a full day of bashing by objectors, who expressed a broad range of concerns with the deal, from class action, antitrust, and copyright issue to privacy and rights issues. Those arguments, however, were vigorously countered by lawyers for Google, represented by Duralyn Durie, and plaintiffs' attorneys Michael Boni and Bruce Keller. In his remarks, Keller refuted Cavanaugh's claim that the settlement would turn copyright on its head, calling the deal fair because it settles Google's past scanning by offering a license, gives class members a chance to opt out of the deal at any time, and even gives absent class members "a place" at the table by holding money for them.
Google Defends Its Book Pact (via The Wall Street Journal)
Thomas Rubin, chief counsel for intellectual property strategy at Microsoft, said the settlement would unjustly give Google exclusive access to as many as 174 million published works.
Ms. Durie, the Google lawyer, said the settlement would actually apply to a much smaller group of out-of-print books--about 5 million. She said 174 million is closer to the number of books that exist world-wide and there are only about 42 million books in libraries in the U.S.
Mr. Rubin said the pact, as written, "will have a significant negative impact on competition" in the area of Internet search and will preclude competing search engines from linking to the unclaimed works.
"It can't possibly be good for competition when the vast majority of works are in the hands of an already dominant player," Mr. Rubin said.
Microsoft, Amazon Urge Rejection Of Google Pact (via Dow Jones Newswires)
Irene Pakuscher, a lawyer representing the German government, said foreign authors aren't represented by the Authors Guild and the settlement, if approved, should be limited to U.S. publishers and authors.
Privacy advocates also raised concerns about whether Google would be able to track which books users access and then use that for its targeted commercial advertising or other efforts. They urged the judge to include a provision that would prevent Google from tracking who accesses which books.
Google's books plan hailed, reviled; no ruling (via Reuters)
The judge seemed sympathetic to several critics who worried that Google had no specifics in its agreement to ensure reader privacy.
"How do you fix it? How is it fixable?" asked Chin.
One critic argued that Google's software was set up to allow Google to see what was actually read and to record notes that were taken. One suggested requiring Google to delete reader information after a limited time and only give it to law enforcement only on receipt of a court order.
Google's Durie acknowledged that some privacy would be lost by those who looked at the books on their personal computers.
"This service will be available at public libraries," she added, where readers would have anonymous access to the material.
Google e-library ruling is delayed (via The Telegraph, UK)
At one point in the hearing, Judge Chin asked a lawyer representing Microsoft why Sony is backing the settlement but his client is not. More than 500 written submissions have been submitted to the court.
Ahead of the hearing, Google said that Judge Chin holds the key "to the greatest library in history", and said in its filing that the agreement is a contribution to human knowledge and awareness.
Court Asked To Impose Privacy Terms In Google Books Settlement (via MediaPost)
Google will gain unparalleled access to people's reading habits if a controversial settlement of a lawsuit with authors and publishers goes through, Electronic Frontier Foundation attorney Cindy Cohn said this morning at a hearing in federal district court in New York.
U.S. District Court Judge Denny Chin, tasked with deciding whether to approve the settlement, asked Cohn how Google's record-keeping ability would differ from Amazon's, given that the retail giant also retains data about which books people purchase and bases recommendations on that information.
Cohn replied that Google has far more granular data than Amazon because Google retains the ability to track how people interact with books after they're purchased. "Google will know every page you read," she said. Amazon, by contrast, only knows that someone made a purchase, but doesn't know what happens after books leave its warehouse.
Marc Rotenberg, executive director of the Electronic Privacy Information Center, also criticized the deal. But unlike Cohn and Morris, he said he believed the privacy hurdles were insurmountable.
Google, Publishers, Authors Defend Book Settlement (via Bloomberg)
Much of the hearing focused on whether Google is using the settlement as a vehicle to profit from the orphan works and boost the capabilities of its search engine, and whether it is the role of Congress, not the courts, to address digital copyright issues.
Amazon.com lawyer David Nimmer called the settlement a “full-scale commercial exploitation with essentially no limits whatsoever.”
No ruling from judge on Google book case (AFP via France 24)
Judge Chin at one point pointedly asked Daralyn Durie, an attorney for Google, whose company motto is "Don't be evil," whether she considered copyright infringement to be "evil."
Durie responded that Google's book project would compensate authors and provide otherwise unobtainable revenue to many whose works are out-of-print.
"There is no other way to create a market for these out-of-print works," she said. "In the absence of this settlement there is no way to access these works. They are locked away."
Google Fights for Ophaned Books (via IDG News Service)
Google attorney Daralyn Durie argued that the opt-in approach would not work for the company, and so it is a non-negotiable part of the settlement.
Her reasoning was that Google cannot tell which of the out of print books will prove to be popular once made digitally available again, so finding each author and persuading him or her to be opt-in would be too cost-prohibitive, she said.
She added that Microsoft tried this opt-in approach and has since given up on its efforts.
Durie estimated that there are about five million books in U.S. libraries that are out of print but still under copyright. In many cases the authors cannot be located, making them orphaned books.
Google gets its day in court over digital library (via NY Post)
The Justice Department, along with Microsoft, Amazon and AT&T, were among those opposing the settlement, arguing it would give Google too much control and violate copyright laws.
Michael Guzman, a lawyer for AT&T, which is at odds with Google over other areas of online law, said the settlement "confers monopoly power on Google."
The search giant's supporters, including Sony and the National Federation of the Blind, contend the agreement would promote competition, expand educational opportunities and make millions of works accessible.
Sony, which makes e-readers that compete with Amazon's Kindle, took Google's side in the debate, saying the pact could have a positive impact on the e-book market by making available works that most readers don't have access to now.
Mark Rotenberg from EPIC Spoke in front of the Judge
The following is from a news release:
In federal district court in New York, EPIC President Marc Rotenberg urged Judge Denny Chin to reject the revised settlement now before the court in Authors Guild v. Google. Mr. Rotenberg said that the settlement would "turn upside down" well established safeguards for reader privacy, including state privacy laws, library confidentiality obligations, and the development of techniques that minimize privacy intrusions.
See Also: The Open Book Alliance (OBA) Also Has a Roundup of Stories That Can Be Found Here.
Peter Brantley, Co-Founder of the OBA is Interviewed about the court case, Google Book Search and related issues on the CNET Podcast, Buzz Out Loud.
It's show #1168. In addition to his work with the OBA, Peter is the Director BookServer Project at the Internet Archive. Previously, he was the Executive Director of the Digital Library Federation.
See Background for Fairness Hearing & the Open Book Alliance on How Many More Books Has Google Scanned Today?
This material was posted prior to the hearing.