Google Book Settlement

A key change in the revised Google Books settlement submitted on Friday is that books from countries other than the United States, Canada, the United Kingdom, and Australia are no longer part of the settlement.

Which should be good news for the French and the Germans, who were some of the leading international objectors to the settlement. But it might not.

We caught up with Google Books engineering director Dan Clancy at the Commonwealth Club last night, where he was speaking on a panel on the future of books. We asked him what was going to happen to all those books that are now out of the settlement.

"For those books, we still show snippets," Clancy said. "We're still scanning them. Everything is the same as it is today."

In other words, those books are now back at square one. Google is continuing to scan them as part of its Library Project, and, of those it has scanned, it is indexing them and including a few sentences of their content in search results. This is what Google has done from the beginning and was what prompted the copyright infringement class action lawsuit resulting in the settlement.

Google has always maintained that displaying short snippets constitutes fair use. Whether the Europeans and others agree remains to be seen.

"We may be sued over that," Clancy said, "but we're saying we have fair use. You'll still see snippets. We'll still have links. And if we can find the rights-holders, and they authorize us to open it up [and show more of the content], then we'll do that.

One of the primary opponents of the Google Books settlement said yesterday that the revised settlement submitted Friday hadn't alleviated her concerns and that she would continue to urge the judge to reject the agreement.

The University of California, Berkeley's, Pamela Samuelson, a law professor and director of the Berkeley Center for Law & Technology, was one of the key figures raising concerns about the settlement in the academic community. One of the primary issues of contention, expressed in a letter opposing the original settlement and submitted to Judge Denny Chin on September 3, is that, in selling subscriptions to universities to access the collection of books Google had scanned, Samuelson and her colleagues believe "the public good of the traditional library" would be transformed into "a commercial enterprise" controlled by a "monopoly."

Yesterday, during a panel at the Commonwealth Club on the future of books, Samuelson said the revisions submitted by Google, the Authors Guild, and the Association of American Publishers hadn't addressed her concerns.

The issues that I raised in a letter that I submitted to the judge on behalf of 65 academic authors in September were numerous....

One of them had to do with some meaningful constraints on pricing of institutional subscriptions. Most of us in the academic communities are quite aware that Reed Elsevier and other journal publishers have just engaged outrageously large price hikes over the last couple of years and really made it very difficult for any other independent journals to really be able to sell.... I don't think that Google Books will charge excessive prices in the first three or five years, but what I see is that the chance is very high that there will be price gouging over time.

I also raise questions about user privacy. There are dozens of provisions in the settlement agreement that call for monitoring of what users do with books and essentially no privacy protections built into the settlement agreement.

While I think that there were some substantial changes that were made to it, it more had to do with getting foreign rights holders out of the settlement and trying to respond at least in part to issues that the Department of Justice raised. So I think there are dozens and dozens of issues that were raised by objectors to the settlement agreement that are, in fact, not addressed in this revision.

So, from my standpoint, all of the reasons I had to be concerned about the settlement agreement back in September still apply, and I'm going to be urging the judge not to endorse the settlement in its current state.

The response of Google Books engineering director Dan Clancy, after the jump.

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Today was was the deadline for the parties to the Google Books settlement to submit their revised deal. But today they asked the judge for an extension until Friday, November 13.

"The parties have been working diligently on completing and filing the Amended Settlment Agreement," wrote Authors Guild attorney Michael Boni. "At the October 7, 2009 status conference, the Court suggested a filing by November 9, and the parties advised the Court that they believed they could meet that date. At the conference, your Honor also requested that the parties inform you if more time would be required. On behalf of the parties, I write to advise the Court that the plaintiffs expect to file their motion seeking preliminary approval of the Amended Settlement Agreement by no later than this Friday, November 13, 2009."

Judge Denny Chin approved the request.

The judge overseeing the Google Books settlement has ruled that photographers and other visual artists may not join the suit as members of the plaintiff class due, in large part, to the fact that they filed too late.

The group, which includes the American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photographers Association, should have introduced their "motion to intervene" earlier, not when the suit is on the verge of being resolved, Judge Denny Chin said.

"The movants' request to intervene is untimely and the parties would be prejudiced if the movants were allowed to intervene now," Chin wrote. The case has been going on since 2005.

The decision also called attention to the implications if the artists were allowed to get involved now, when the parties are on the verge of nailing down the settlement.

"The parties to this litigation have been negotiating and renegotiating a complicated settlement agreement for several years," Chin wrote. "In the last two months, the parties have begun working with the Department of Justice to revise the agreement to attempt to avoid antitrust problems, and they are due to re-file their new settlement proposal on November 9, 2009.

"The proposed settlement... represents thousands of hours of discussion, compromise, and legal draftsmanship. Yet, the movants propose to intrude at the very end of this long process, and to add the question of millions of pictorial materials to the equation.

"Intervention could 'destroy [the parties'] settlement and send [] them bck to the drawing board,'" Chin wrote, citing a precendent.

Chin said that if the artists want to pursue grievances against Google, they can file their own suit.

A coalition of authors, publishers, tech companies, and non-profits—including Amazon, Microsoft, and Yahoo, and led by the San Francisco-based Electronic Frontier Foundation—sent a letter to the judge overseeing the Google Books settlement Thursday, asking him to ensure the notification period following the next round of revisions to the deal will be long enough for rights-holders to study the changes and submit any responses.

"Any amended settlement will add a new level of complexity, requiring careful analysis not only of the changes, but also of the way they affect all the other implications of the settlement," the letter said. "This analysis of any changes is especially difficult for the many class members who are not native English speakers or who are unfamiliar with American legal processes."

The parties to the settlement—the Authors Guild, the Association of American Publishers, and Google—are hammering out revisions to the deal following voluminous criticism of the initial version, including from the Department of Justice. A revised settlement is scheduled to be submitted by November 9.

The court will then set the schedule for the case, including how long the period will be for notifying class members of the new terms, includes the many overseas rights holders; setting a deadline for responses; and scheduling a fairness hearing, after which the court will rule whether to approve of reject the settlement.

Many of the several dozen individuals and organizations who signed the letter were among those who submitted objections or amicus briefs to the first version of the settlement. Among the signatories: Amazon, Microsoft, Yahoo, Consumer Watchdog, the Open Book Alliance, the Internet Archive, the American Society of Journalists and Authors, the National Writers Union, the estate of Richard Wright, Arlo Guthrie, the estate of Philip K. Dick, Thomas Steinbeck (son of John Steinbeck), Catherine Ryan Hyde, University of California, Berkeley professor Pamela Samuelson, Harold Bloom, Victor David Hansen, Norman Podhoretz, Elliot Abrams, Harriet Rubin, Sherwin B. Nuland, Elizabeth Wurtzel, the Japanese PEN Club, and several overseas publishing houses and associations.

Here's one more country that's not too happy about the Google Books scanning project and subsequent settlement: China.

The China Written Works Copyright Society says that Google's scanning of about 18,000 books by 570 Chinese authors violated copyright rules. It's the same contention that others, including the French and German governments, have made against Google's Library Project, which is the subject of the suit that has resulted in the Google Books settlement.

This is the first time, though, that a major Chinese body has articulated its opposition.

CWWCS is the organization responsible for collecting copyright information on written works in China. A CWWCS official told Agence France Press that his group would work with Google to "acknowledge the infringement of Chinese copyrights and seek a negotiated solution." He did not rule out a lawsuit, AFP said.

More, after the jump.

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In what the Guardian (UK) called "a remarkable intervention from a leading world politician," German Chancellor Angela Merkel jumped into the Google Books fray on Saturday, saying copyrights must be protected online.

"That's why we reject the scanning in of books without any copyright protection—like Google is doing," Reuters quotes Merkel as saying in her weekly podcast. "The government places a lot of weight on this position on copyrights to protect writers in Germany."

The podcast took place two days before the opening of the Frankfurt Book Fair. It was at that same book fair, in 2004, that Google launched Google Print, the predecessor to the Google Books service.

German publishers have been some of the most vocal of the international opponents to the Google Books settlement. Dozens of German publishers filed objections, and the German government filed an amicus brief declaring that the settlement violates German, European, and treaty law.

If you speak German, you can watch Merkel's podcast here.

New dates were set in the Google Books Settlement during a status conference today with federal judge Denny Chin in New York.

A group of civil liberties groups, library associations, and authors—including the Bay Area's Michael Chabon, Lawrence Ferlinghetti, Ayelet Waldman, Violet Blue, and Annalee Newitz—sent a letter to Google's lawyers today, asking the company to fold more rigorous privacy protections into the revised version of the Google Books settlement.

"[T]he failure of the settlement to ensure that readers using the Google Book Search services will have their privacy protected as much as readers using physical books has been a key concern for many authors, libraries and the reading public," the letter said. "We believe that it is vital that Google commit to additional privacy protections and that such commitments be enforceable by the court presiding over the settlement."

In addition to the authors mentioned above, signatories to the letter include: Jonathan Lethem, Anthony D. Romero, Bruce Schneier, Cory Doctorow, Beverly Potter, David G. Post, Wendy Chapkis, Jon Evans, Carol Queen, Julian Dibbell, Richard Glen Boire, Jessamyn West, Zak A Greant, Chris Carlsson, Debbie Nathan, Rachel Kramer Bussel, Daphne Gottlieb, Lisa Hendrix, Shannon Okey, Kim Werker, Cleis Press, the American Civil Liberties Union, and the Electronic Frontier Foundation, the Center for Democracy & Technology, the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, the Electronic Privacy Information Center, New York Law School professor James Grimmelmann, the Software Freedom Law Center, the estate of Richard Wright, Thomas Steinbeck, and Catherine Ryan Hyde.

A copy of the letter is available here.

When the deadline for filing briefs in the Google Books Settlement hit back in September, the U.S. District Court of the Southern District of New York, which is overseeing the case, was flooded with papers from around the country and around the world.

Now, thanks to the good folks at the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries, bless their hearts, we have a breakdown of who filed what: