5 ms·

PDF link to Judge Chin's Decision Rejecting Google Books Settlement

30 points by mikecane 16y ago

anigbrowl 16y ago
Could be worse - switching from opt-out to opt-in is unlikely to make a huge difference to Google's bottom line. A bigger problem is dealing with the anti-trust issues; I'm not sure what remedies would be appropriate or how they would impact the business model. given that Google's position is built around US copyright, it may be in the company's interest to deepen its existing relationship with the Library of Congress. Theoretically I would have made $75 or so out of the existing settlement for a little-read tech book I wrote back in the 90s, but I'd rather see it become available again digitally than worry over payment. I must say I found navigating the settlement website vastly more pleasant than dealing with the publisher, who my rights in a much more invidious fashion.
- prewett 16y ago
  A switch to opt-in would make a huge difference in Google having access to works like yours. People who would be willing to have their work available may not care enough to go to the web site. Even worse, what about the authors who are not contactable for some reason. They cannot possibly opt-in.
  - anigbrowl 16y ago
    Yes, but I was talking about the difference to Google's bottom line. The unavailability of little-known or orphaned works and/or a somewhat higher payout for infringement in some of those cases, would not have a very big financial impact on Google or its book digitization project. An incomplete collection would be a shame, but Google could continue to scan the works and just abstain from exploiting or republishing them pending some future evolution of the legal environment. On the other hand, a broader rejection which made the project into a potential financial disaster for Google might have resulted in the whole venture being terminated, a much greater loss for internet readers. With few exceptions, the difficult of locating the rights-holders for obscure and orphan literary works stems from their lack of literary or commercial value: if the copyright had been worth protecting, someone would have maintained an active claim of ownership. The number of valuable works whose copyright owners cannot be located is small - in the worst case, they'll be inaccessible to internet readers in the short term but will become available later when the copyright expires. But in most cases, readers won't be missing much. The truly dedicated can still go to a physical library which has a paper copy. You seem to think I prefer the opt-in approach; in fact I was perfectly fine with the existing settlement offer, and I'm sorry that it has been rejected by the court. All I am saying is the court's rejection could have been worse, and Google may choose to live with the loss of the suggested alternative. Now it's going to go through another year or three of legal wrangling, which will limit further investment by Google, slow deployment of the technology, and reduce startup opportunities based on leveraging the Books API. Nor am I blind to the inconvenience for researchers and scholars that an opt-in or other limitations might impose. As a matter of fact I'm dealing with that exact problem right now: there is a book-length government report that I very much want to study for a personal research project, but thanks to a legislative scheduling snafu back in 1995 no funds were ever allocated to print or archive it properly (it's not classified or anything). There is one typewritten manuscript copy stored in the Library of Congress and one photocopy of that stored in an agency archive. That's it - only two publicly accessible copies exist. There's an interesting backstory, but right now my choices are to spend $150 to have someone in Washington DC photocopy the whole thing or to wait until I have time, cash and an excuse to visit DC and spend a day copying it myself at a (slightly) lower cost. Copyright isn't at issue here, but trust me, I'm keenly aware of the frustration that arises from knowing something exists but being unable to easily access it.
kmfrk 16y ago
A mod should probably add a (.pdf) after the thread title. (It's a direct .pdf link.)
vessenes 16y ago
I read 48 pages to conclude the judge would like Google to switch to opt-in for all works, rather than opt-out. This would probably need to be worded in such a way that just acknowledges authors could do such an opt-in if they chose, not putting together the final opt-in agreement in the settlement agreement. I believe he would approve such an agreement after reading through his thoughts. End story, Google probably will get to pay hundreds of millions to save the world's books from rotting; they probably won't get to own the digital advertising rights to all those books de-facto.
prayag 16y ago
Another shot in the arm for the author's guild and the copyright champions of the world. Its just frustrating how we let these arm-twisting lawsuit-happy sleezeballs become the gatekeepers of the entire body of knowledge the human race has ever produced.
- anigbrowl 16y ago
  It's swings and roundabouts. The bad side is the lazy rent-seeking activity, where publishers collect royalties for longer than the average human lifespan and generally pass little or none of the proceeds onto the original creator, often a starving artist. This has gotten to the point of complete regulatory capture in the US; although the very unreasonableness of the current law is the greatest factor behind technical progress designed to circumvent it, for the present it results in a huge economic waste. On the other hand, it's only very recently that the digital distribution has become universally available at negligible cost. Up to very recently, the cost of providing a single copy on demand was so high that only mass production made any economic sense, and few authors had the resources or desire to invest the required amounts of time and money. So if it wasn't for the publishers, humanity's body of knowledge would be all that large in the first place. A few centuries back, printing and publishing were the edgy disruptive industries which upset the existing model of hand-copying manuscripts for powerful patrons like the aristocracy and religious institutions. Rather than worrying about the general public downloading and copying, those gatekeepers were worried about the general public having the ability to purchase and read things for themselves, instead of being told what a priest or sheriff thought fit for them to know - and a good many publishers along the way paid for their insistence on democratizing information with liberty or even life. So their failure to adjust to near-zero marginal costs of copying over the last ~30 years other than via outsize lawsuits seems relatively mild in the historical scheme of things. I think the key to speeding this transition is to provide authors, editors, and other people whose creative work is a necessary input with better ways to make a living than working for a publisher. Up to now, marketing and distributing content or creative services (eg editing) has been too difficult and expensive for individuals to offer a good return...which is one reason that marketing often accounts for 75% of a publishing launch budget nowadays.
- dantheman 16y ago
pessimist 16y ago
If Google had indeed fought the Author's Guild on copyright/fair-use and lost I would have a lot of sympathy for them. But instead they came up with this settlement which does IMHO give them an unfair advantage and a de-facto monopoly, so I am not sad to see the settlement being thrown out of court. You should not be able to bypass copyright law (even if the law is flawed) this way.
microtherion 16y ago
As much as I personally would prefer an opt-out arrangement, I found the legal reasoning fairly compelling: The copyright status quo should be changed through legislation, rather than through a class action settlement favoring one particular party.
grellas 16y ago
Summary of judge's reasoning: 1. Class actions are meant to resolve past wrongs and not to do business deals affecting future rights of parties. 2. Therefore, the best thing to do is take this issue to Congress, which ultimately has the constitutional power to fashion copyright rights and remedies. 3. It is quite unfair to give Google default rights to exploit all works ever written as to which the copyright holders are unknown. This is unfair to the authors and it is unfair to Google's competitors. 4. Opt-out might work well in a typical class action where an individual claim might amount to a few dollars. It would work a terrible miscarriage of justice, however, to say that each of the authors who fails to take affirmative steps to protect his copyright loses such rights to Google. 5. Unlike the typical class action, the objections made by class members were numerous, articulate, and strongly asserted. If the class members in whose name this action is supposedly brought have such strong feelings that it is unfair to them, that is a very bad indicator concerning the overall fairness of the settlement. My personal view: the judge here reacted strongly to the idea that a party such as Google could engage in mass copying of copyrighted works and then use the courts and the class action as vehicles by which to foist a forced, global licensing deal on the unwilling parties affected by its actions. The only way Google could swing this through this mechanism is if the court approved the opt-out procedure. Since most parties do not get notice at all, and most do not opt out, Google would get near-universal control of all published works by this method. By declaring that this would only be fair if an opt-in procedure is used, the judge effectively killed this as an effective mechanism for Google. This means that no one is bound by the terms unless that party takes proactive steps to become bound. By definition, then, the authors who do not receive notice, and all other cases where the copyright holders are unknown, will be excluded from the settlement and Google will get no rights to their works. This is a devastating blow to Google's book project. Unless it is overturned on appeal, it will be very hard to salvage this project (at least in anywhere near the form Google hopes) given this decision.

30 points by mikecane 16y ago

Could be worse - switching from opt-out to opt-in is unlikely to make a huge difference to Google's bottom line. A bigger problem is dealing with the anti-trust issues; I'm not sure what remedies would be appropriate or how they would impact the business model. given that Google's position is built around US copyright, it may be in the company's interest to deepen its existing relationship with the Library of Congress. Theoretically I would have made $75 or so out of the existing settlement for a little-read tech book I wrote back in the 90s, but I'd rather see it become available again digitally than worry over payment. I must say I found navigating the settlement website vastly more pleasant than dealing with the publisher, who my rights in a much more invidious fashion.

prewett 16y ago
A switch to opt-in would make a huge difference in Google having access to works like yours. People who would be willing to have their work available may not care enough to go to the web site. Even worse, what about the authors who are not contactable for some reason. They cannot possibly opt-in.
- anigbrowl 16y ago
  Yes, but I was talking about the difference to Google's bottom line. The unavailability of little-known or orphaned works and/or a somewhat higher payout for infringement in some of those cases, would not have a very big financial impact on Google or its book digitization project. An incomplete collection would be a shame, but Google could continue to scan the works and just abstain from exploiting or republishing them pending some future evolution of the legal environment. On the other hand, a broader rejection which made the project into a potential financial disaster for Google might have resulted in the whole venture being terminated, a much greater loss for internet readers. With few exceptions, the difficult of locating the rights-holders for obscure and orphan literary works stems from their lack of literary or commercial value: if the copyright had been worth protecting, someone would have maintained an active claim of ownership. The number of valuable works whose copyright owners cannot be located is small - in the worst case, they'll be inaccessible to internet readers in the short term but will become available later when the copyright expires. But in most cases, readers won't be missing much. The truly dedicated can still go to a physical library which has a paper copy. You seem to think I prefer the opt-in approach; in fact I was perfectly fine with the existing settlement offer, and I'm sorry that it has been rejected by the court. All I am saying is the court's rejection could have been worse, and Google may choose to live with the loss of the suggested alternative. Now it's going to go through another year or three of legal wrangling, which will limit further investment by Google, slow deployment of the technology, and reduce startup opportunities based on leveraging the Books API. Nor am I blind to the inconvenience for researchers and scholars that an opt-in or other limitations might impose. As a matter of fact I'm dealing with that exact problem right now: there is a book-length government report that I very much want to study for a personal research project, but thanks to a legislative scheduling snafu back in 1995 no funds were ever allocated to print or archive it properly (it's not classified or anything). There is one typewritten manuscript copy stored in the Library of Congress and one photocopy of that stored in an agency archive. That's it - only two publicly accessible copies exist. There's an interesting backstory, but right now my choices are to spend $150 to have someone in Washington DC photocopy the whole thing or to wait until I have time, cash and an excuse to visit DC and spend a day copying it myself at a (slightly) lower cost. Copyright isn't at issue here, but trust me, I'm keenly aware of the frustration that arises from knowing something exists but being unable to easily access it.

kmfrk 16y ago

A mod should probably add a (.pdf) after the thread title. (It's a direct .pdf link.)

vessenes 16y ago

I read 48 pages to conclude the judge would like Google to switch to opt-in for all works, rather than opt-out. This would probably need to be worded in such a way that just acknowledges authors could do such an opt-in if they chose, not putting together the final opt-in agreement in the settlement agreement. I believe he would approve such an agreement after reading through his thoughts. End story, Google probably will get to pay hundreds of millions to save the world's books from rotting; they probably won't get to own the digital advertising rights to all those books de-facto.

prayag 16y ago

Another shot in the arm for the author's guild and the copyright champions of the world. Its just frustrating how we let these arm-twisting lawsuit-happy sleezeballs become the gatekeepers of the entire body of knowledge the human race has ever produced.

anigbrowl 16y ago
It's swings and roundabouts. The bad side is the lazy rent-seeking activity, where publishers collect royalties for longer than the average human lifespan and generally pass little or none of the proceeds onto the original creator, often a starving artist. This has gotten to the point of complete regulatory capture in the US; although the very unreasonableness of the current law is the greatest factor behind technical progress designed to circumvent it, for the present it results in a huge economic waste. On the other hand, it's only very recently that the digital distribution has become universally available at negligible cost. Up to very recently, the cost of providing a single copy on demand was so high that only mass production made any economic sense, and few authors had the resources or desire to invest the required amounts of time and money. So if it wasn't for the publishers, humanity's body of knowledge would be all that large in the first place. A few centuries back, printing and publishing were the edgy disruptive industries which upset the existing model of hand-copying manuscripts for powerful patrons like the aristocracy and religious institutions. Rather than worrying about the general public downloading and copying, those gatekeepers were worried about the general public having the ability to purchase and read things for themselves, instead of being told what a priest or sheriff thought fit for them to know - and a good many publishers along the way paid for their insistence on democratizing information with liberty or even life. So their failure to adjust to near-zero marginal costs of copying over the last ~30 years other than via outsize lawsuits seems relatively mild in the historical scheme of things. I think the key to speeding this transition is to provide authors, editors, and other people whose creative work is a necessary input with better ways to make a living than working for a publisher. Up to now, marketing and distributing content or creative services (eg editing) has been too difficult and expensive for individuals to offer a good return...which is one reason that marketing often accounts for 75% of a publishing launch budget nowadays.
dantheman 16y ago

pessimist 16y ago

If Google had indeed fought the Author's Guild on copyright/fair-use and lost I would have a lot of sympathy for them. But instead they came up with this settlement which does IMHO give them an unfair advantage and a de-facto monopoly, so I am not sad to see the settlement being thrown out of court. You should not be able to bypass copyright law (even if the law is flawed) this way.

microtherion 16y ago

As much as I personally would prefer an opt-out arrangement, I found the legal reasoning fairly compelling: The copyright status quo should be changed through legislation, rather than through a class action settlement favoring one particular party.

grellas 16y ago

Summary of judge's reasoning: 1. Class actions are meant to resolve past wrongs and not to do business deals affecting future rights of parties. 2. Therefore, the best thing to do is take this issue to Congress, which ultimately has the constitutional power to fashion copyright rights and remedies. 3. It is quite unfair to give Google default rights to exploit all works ever written as to which the copyright holders are unknown. This is unfair to the authors and it is unfair to Google's competitors. 4. Opt-out might work well in a typical class action where an individual claim might amount to a few dollars. It would work a terrible miscarriage of justice, however, to say that each of the authors who fails to take affirmative steps to protect his copyright loses such rights to Google. 5. Unlike the typical class action, the objections made by class members were numerous, articulate, and strongly asserted. If the class members in whose name this action is supposedly brought have such strong feelings that it is unfair to them, that is a very bad indicator concerning the overall fairness of the settlement. My personal view: the judge here reacted strongly to the idea that a party such as Google could engage in mass copying of copyrighted works and then use the courts and the class action as vehicles by which to foist a forced, global licensing deal on the unwilling parties affected by its actions. The only way Google could swing this through this mechanism is if the court approved the opt-out procedure. Since most parties do not get notice at all, and most do not opt out, Google would get near-universal control of all published works by this method. By declaring that this would only be fair if an opt-in procedure is used, the judge effectively killed this as an effective mechanism for Google. This means that no one is bound by the terms unless that party takes proactive steps to become bound. By definition, then, the authors who do not receive notice, and all other cases where the copyright holders are unknown, will be excluded from the settlement and Google will get no rights to their works. This is a devastating blow to Google's book project. Unless it is overturned on appeal, it will be very hard to salvage this project (at least in anywhere near the form Google hopes) given this decision.