In what Publishers Weekly aptly describes as “a stunning setback”, the judge poring over the Google Book Settlement for more than a year rejected it as “not fair, adequate, and reasonable.”

The judge, Denny Chin, said that while he recognized the importance of Google’s initiative in digitizing countless books, he also felt that Google had dealt itself an unfair advantage over the competition. ”While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far…Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.”

Of course, when Google undertook to digitize millions of printed books there was scarcely anything by way of competition, and it was only after Google brought forth its achievement that competitors appeared to cry “unfair.” (See Jealous Rivals Determined to Tank Google Settlement?) The Authors Guild among others brought a lawsuit but reached a settlement with Google that it hoped would satisfy all parties. It satisfied all of them except the one that counted – Judge Chin.

On the bright side Chin noted that a rather simple fix could persuade him to reverse his position. Instead of offering authors the negative option of optioning out of the settlement, he suggested the positive approach of letting authors choose to opt in.

“As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an opt-out settlement to an opt-in settlement. I urge the parties to consider revising the ASA accordingly.”

To read the complete decision click here.

Just as settlement of the Google copyright lawsuit seems to be coming to a head as  the judge reviews the voluminous briefs, another body of aggrieved copyright owners has staked a legal claim.  These are photographers and graphic artists whose illustrations, they claim, are not adequately provided for in the case before Judge Denny Chen.

It seems that some publishers permitted Google to include illustrated books in Google’s search program, but the photographers and artists who provided the illustrations say their interests have not been protected.

“Google’s settlement with authors and publishers largely excluded photographs and other visual works,” writes Miguel Helft in the New York Times. “Legal experts said it was not unexpected that Google would face claims from groups that were not part of the original case and are not covered by it.”

“We are seeking justice and fair compensation for visual artists whose work appears in the 12 million books and other publications Google has illegally scanned to date,” the Times article quotes the  general counsel for the American Society of Media Photographers.

We’ll be monitoring this development to see whether Judge Chen will consider folding these new claims into the existing case or rule that they must be pressed in a new and separate court action.

Read details in Visual Artists to Sue Google Over Vast Library Project

And for in-depth coverage of the author and publisher lawsuit against Google and the proposed settlement, you can click here.

Richard Curtis

Every Blogger owes a debt of gratitude to newspapers and magazines. This posting relies on original research and reporting performed by the New York Times.

Though it seems to be taking longer to adjudicate than Jarndyce v. Jarndyce, judicial review of the Google Settlement -  the compromise reached by the book industry/Authors Guild v.Google -  is still in process. Those of you whose patience has flagged need to be reminded that the stakes remain as high as ever, and if judge Denny Chin is taking his sweet time poring over the briefs, it’s because the issues and implications are nothing short of stupendous.

Forgive us then for keeping the matter in front of you. For a balanced, plain-English summary read IO9.com editor in chief Annalee Newitz’s 5 Ways The Google Book Settlement Will Change The Future of Reading. Newitz thoroughly weighs pros and cons and narrowly expresses support, concluding that “with careful regulation, the Google Book Settlement could be the first shaky step on the road that will take us” to “a future of economically-sustainable openness in the stacks.”

Familiarize yourself with the Authors Guild’s position, which we support wholeheartedly.

Richard Curtis

Yes, we’re all suffering from Settlement Fatigue Syndrome and if we read one more position paper about the proposed settlement of the Authors Guild/Association of American Publishers we’ll be tempted to watch reruns of Beavis and Butthead.

That said, try sucking it up just a little longer and read the Authors Guild statement circulated by email to its members. It essentially states that while none of the choices is thrilling, “harnessing” Google is the best way to protect authors’ interests. We agree. A ruling is imminent but the issues have not changed nor have the stakes gotten any lower. The book industry stands to suffer the same devastation that brought the music business to its knees.

From our viewpoint, harnessing Google is only where the benefits begin, not where they end. If we can impose on you to read yet one more article, look at David Drummond’s in the Guardian.”The truth,” Drummond writes, “is that readers around the world who seek the information locked in millions of out-of-print books currently have little choice other than to travel to a small number of libraries in the hope of finding what they are looking for. And if you’re an author, you have no way to make money from your work if it’s out of print.

“Imagine if that information could be made available to everyone, ­everywhere, at the click of a mouse. Imagine if long-forgotten books could be enjoyed again and could earn new ­revenues for their authors. Without a settlement it can’t happen.”

We say amen to that. Support the Settlement.

RC

“Thanks, but we’ll do it ourselves” is pretty much what France said in response to Google’s effort to digitize the nation’s library, as reported by Scott Sayare of the New York Times. And its president, Nicolas Sarkozy, put his money where his mouth is by committing almost $1.1 billion to scanning the National Library’s 14 million volume collection. The government was reacting to an outpouring of nationalist outrage over what was perceived as an invasion of the country’s literary treasure trove.

As if to put le point d’exclamation on the government’s maneuver, a short time later a French court ordered Google to pay €300,000 – over $430,000 – in damages for breach of copyright stemming from litigation commenced in 2006. Google was also required to cease distributing digital copies of French books online because La Martinière Groupe, the publishers, had not authorized such use. The grounds for the French legal action, which was joined by the French Publishers Association representing some 400 publishers, were not dissimilar to those cited in the suit brought against Google by the Authors Guild and the Association of American Publishers, a suit that has eventuated in the settlement currently awaiting adjudication.

Do you think Google will get le message?

RC

Every Blogger owes a debt of gratitude to newspapers and magazines. This posting relies on original research and reporting performed by the New York Times.

Google, the Authors Guild, and publishing industry leaders have filed a revised and sweetened settlement with the court. To those who are still opposed to it despite every reasonable effort to placate them, a request:

Spare us the hypocrisy.

You can dress up your objections to the Google settlement in legal niceties and pious pleas for fairness, but the truth is you’re just jealous that Google took initiatives that you lacked the vision to take – until it looked like there was money to be made. So now you want to gut the settlement so you can get a piece of the action you didn’t raise a finger or spend a dime to earn.

Where were you when a treasure house of literary works was abandoned? And isn’t it odd that now that someone has come along with a viable plan to recover that treasure and wants to make a reasonable profit, you have suddenly become passionate bibliophiles and champions of fairness?

Google, the publishing industry, and the Authors Guild have walked an extra mile to satisfy your so-called “concerns”. A revised and sweetened settlement has been presented to the court. Do the right thing: honor the men and women of good will who have forged it, the corporate leaders who deserve to profit from it and the generations of humanity that stand to benefit from it.

Read the sweetened terms of the settlement here. For additional observations read Google Settlement Under Attack for Making Treasure Out of Trash.

Richard Curtis

Author’s Guild today filed an amended Google settlement with the court today and issued this interim statement:

Normally, we wouldn’t recommend a piece that in any way compares out-of-print books to sewage, but this piece in Slate is by Tim Wu, a Columbia Law professor and former clerk for Supreme Court Justice Stephen Breyer. Mr. Wu specializes in copyright law and telecommunications policy and is best known online as the popularizer of the net neutrality movement. He’s also chairman of the board of Free Press, a nonprofit dedicated, among other things, to combating media monopolies. For those wary of Google, his concluding paragraph is worth reading:

“But if you want to put Google in its place, the book project is the wrong way to do so. It is Google’s monopoly on Internet search that is valuable and potentially dangerous, not a quixotic project to provide access to unpopular books. So hold on to that sense of wariness, but understand that in this case, it’s misplaced. To punish Google by killing Book Search would be like punishing Andrew Carnegie by blowing up Carnegie Hall.”

Here’s Mr. Wu’s article: http://www.slate.com/id/2229391/pagenum/all

The editorial departments of some major publications found much to like in the settlement as well. Have a look–

The Economist: http://www.economist.com/opinion/displaystory.cfm?story_id=14363287
New York Times: http://www.nytimes.com/2009/07/29/opinion/29wed3.html
Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2009/08/07/AR2009080703382.html

We’re confident they’ll all find even more reasons to cheer the amended settlement. We’re holding to our core principles: lots of access to out-of-print books for readers, students and scholars; compensation and control for authors and publishers.

We’ll be back later with details on the amended settlement.

Google co-founder Sergey Brin has posted an op-ed editorial in the New York Times urging the book community not to lose what could well be a once-in-history opportunity to rescue the content of millions of book from obscurity.

“The vast majority of books ever written are not accessible to anyone except the most tenacious researchers at premier academic libraries,” he points out. “Books written after 1923 quickly disappear into a literary black hole. With rare exceptions, one can buy them only for the small number of years they are in print. After that, they are found only in a vanishing number of libraries and used book stores. As the years pass, contracts get lost and forgotten, authors and publishers disappear, the rights holders become impossible to track down.”

Inevitably, the few remaining copies of the books are left to deteriorate slowly or are lost to fires, floods and other disasters. While I was at Stanford in 1998, floods damaged or destroyed tens of thousands of books. Unfortunately, such events are not uncommon — a similar flood happened at Stanford just 20 years prior. You could read about it in The Stanford-Lockheed Meyer Library Flood Report, published in 1980, but this book itself is no longer available.

Brin recounts other tragic losses of historical and literary heritage including the library at Alexandria and, of more recent vintage, the United States Library of Congress.

Assuring us that us that “nothing in this agreement precludes any other company or organization from pursuing their own similar effort,” Brin reminds us that “Today, if you want to access a typical out-of-print book, you have only one choice — fly to one of a handful of leading libraries in the country and hope to find it in the stacks.”

Brin concludes with the hope that destruction of significant libraries “never happens again, but history would suggest otherwise. More important, even if our cultural heritage stays intact in the world’s foremost libraries, it is effectively lost if no one can access it easily. Many companies, libraries and organizations will play a role in saving and making available the works of the 20th century. Together, authors, publishers and Google are taking just one step toward this goal, but it’s an important step. Let’s not miss this opportunity.”

Read Brin’s editorial in full in A Library to Last Forever. E-Reads supports the settlement worked out in good faith by the author and publishing community seeking to protect our precious legacy of books. And we take a dim view of the motives of some who have criticized the settlement simply because they didn’t think of it first and didn’t bestir themselves to do anything about orphaned books until Google demonstrated there’s money to be made in them. For more about that, you can click here.

Richard Curtis

Every Blogger owes a debt of gratitude to newspapers and magazines. This posting relies on original research and reporting performed by the New York Times.

Do orphaned books need a guardian, the way orphaned children do? Some commentators on the Google Books Settlement think they do. They are offering to resolve an impasse that arose when a number of parties raised second thoughts about the impending settlement, which was forged in good faith between Google and the author/publisher community.

Orphaned books are books whose copyrights are still in effect, but whose authors cannot be found – or at least have not come forward to claim their “children”. How serious is the problem? So serious that if the orphaned books were orphaned humans they would populate a city. “Of more than seven million works scanned by Google so far, four to five million appear to be orphaned,” says Lewis Hyde, a fellow of Harvard’s Berkman Center for Internet and Society.

Hyde has written an incisive analysis of the orphaned books problem for the New York Times Sunday Book Review.

Google, both as a public service and a commercial venture, took it upon itself to scan all those books (including many that have run out of copyright and entered the public domain). Google then proposed making the orphan books available for sale. That’s when the Authors Guild and Publishers Association sued, and the resulting settlement created a Book Rights Registry funded by Google, aimed at trying to “locate rights holders and create a database of their contact information and copyright interests in Books and Inserts, and to collect revenues from Google and distribute those revenues to rightsholders, and for notice and settlement administration costs.”

That solution is the crux of the position taken by the holdouts. They don’t want Google exploiting the books while the “parents” are being searched for. They don’t want Google exploiting the books at all, at least not until the authors (or their heirs) can be located and express their own volition as to what should be done with their books.

“Surely,” says Hyde in his essay Advantage Google, “there are better ways to dispose of orphan income. The Department of Justice in fact suggested one two weeks ago, when it issued a critique of the proposed settlement saying, among other things, that the court might do as we do with actual orphans: appoint a guardian to look out for them until they come of age. In this case, I believe, such a guardian would have to be charged with service to both the rights holders and the public good. He would have to try to find lost owners and pay them their due; should no owners be found, he would have to devise a way to release these works to the public domain.”

If you’re interested in delving into the Settlement, you can click on the FAQs. And for a different take on it, read Google Settlement Under Attack for Making Treasure Out of Trash.

RC

An editor told me this story and swore it was true:

Years ago he was hired by a rich and successful publisher. When he walked for the first time into the president’s office he observed a teetering pile of royalty statements and checks addressed to authors. Some of the checks were dated several years earlier.

The publisher followed his gaze. “You’re wondering about these?”

“Yes. It looks as if they’ve never been mailed out.

“That’s right. And would you like to know why?”

“Sure.”

“I’m waiting for the authors to sue me. When they sue me, I’ll mail them out.”

I was reminded of this story when I read today that an author had launched a lawsuit against Scribd, the startup document-sharing website that claims 50 million monthly users. After coming under fire for its failure to screen submissions, it made an effort to clean up its act and began turning away content of suspicious origins. Some publishers like Simon & Schuster have expressed sufficient trust to upload some of its books or excerpts.

According to cnet News, the author, Elaine Scott, “found on Scribd in July an unauthorized copy of one of her titles, ‘Stocks and Bonds: Profits and Losses, A Quick Look at Financial Markets.’” Describing Scribd as “the YouTube for documents,”her attorneys claimed that the book had been downloaded more than 100 times from Scribd.” They went on to say that Scribd seems to believe that “any business may misappropriate and then publish intellectual property, as long as it ceases to use a stolen work when an author complains.”

There is some resonance with the current Google Settlement dispute in that Google wants to digitize books that have been “orphaned” – that is, have not been claimed by the legimate copyright owners.

Read details here
For the complete court filing, click here.

Richard Curtis