Superb PW Analysis of the Google Books Mess

"Deal or No Deal: What If the Google Settlement Fails?"
by Andrew Richard Albanese
Publishers Weekly

http://www.publishersweekly.com/article/CA6660295.html?nid=3335

Google's Strategy: Create 'Facts on the Ground'

New-age copyright infringers are like settlers: their "ask forgiveness, not permission" m.o. is designed to create "facts on the ground" that attempt to render moot or unacceptably cumbersome a consideration of their illegality.

I've seen this movie before, and I'm seeing it again with Google Books. Weeks after a flurry of high-profile objections and news of antitrust investigations, Google is proceeding with what it does best: deal-making that leverages its technology without regard to anyone else's rights. The latest is with the University of Michigan. Check out the report in the Ann Arbor News, http://www.mlive.com/news/annarbornews/index.ssf?/base/news-32/1243348825267460.xml&coll=2.

The expanded agreement with U of M "was made possible because of Google's pending legal settlement with a broad class of authors and publishers," the story blandly says -- ignoring that the settlement is in deep doo-doo, and for good reason.

Obama Selects Judge From First Round of 'Tasini' Case

This morning's news is that President Obama is about to nominate Judge Sonia Sotomayor to the Supreme Court vacancy created by the retirement of Justice David Souter. There are several connections to our case.

Sotomayor, as a district court judge, in 1997 issued the original decision in the Tasini v. Times case: she interpreted Section 201(c) of the Copyright Act as favoring the publishers', not the freelance writers', position. In 1999, the Second Circuit Court of Appeals reversed Sotomayor. In 2001, the Supreme Court upheld the Second Circuit.

Sotomayor now herself sits on the Second Circuit, whose 2007 sua sponte ruling on jurisdiction in our case -- a position opposed by both the settlement parties and the objectors -- is at the High Court. Sotomayor was not part of the three-judge panel specifically assigned to our appeal. But even so, my guess is that, if confirmed by the Senate for the Supreme Court, she would recuse herself from consideration of Reed Elsevier v. Muchnick.

Another worthy from Obama's short list who would have had to recuse herself, had she been chosen, is Pamela S. Karlan, founder and director of the Stanford Law School Supreme Court Litigation Clinic, who is co-counseling with objectors' attorney Charles Chalmers before the Court.

Not Fit to Print in The Washington Post

Brewster Kahle's observations about the overreaching proposed court agreement for the future operations of Google Books are on the mark, and a reminder that this settlement faces widespread protests from all sides: Google's competitors, information consumers, and authors and publishers ("A Book Grab by Google," May 19, The Washington Post). But what the first two groups also should know is that another case, currently before the Supreme Court, originated with one of the same plaintiffs and attempts the same illegal process of using private class-action infringement claims to promulgate new and pernicious copyright law.

In a 2005 settlement of a consolidation of cases triggered by the Supreme Court's 2001 ruling, Tasini v. New York Times, the Authors Guild was among the associational plaintiff writers' organizations that brokered an agreement with the electronic database industry and its licensor newspaper and magazine publishers (including the parent company of The Washington Post). The case involves the unauthorized and uncompensated use, on products such as LexisNexis, of the previously published works of freelance writers.

I am one of the class members who objected to the terms of that settlement. The Supreme Court is reviewing the 2007 decision by the Second Circuit Court of Appeals to vacate the settlement on jurisdictional grounds -- a ruling with which both the settlement parties and the objectors disagree. We objectors seek the opportunity to return to the lower courts so we can argue against the settlement on its merits.

The case, now known as Reed Elsevier v. Muchnick, differs from the Google Books settlement in certain respects -- there is no prospective royalty system, for example. What the two cases share is a danger that has been identified by the Register of Copyrights, Marybeth Peters: infringement suits are supposed to redress past damages, not unilaterally create a future global rights architecture. This both would usurp Congress, which alone has the constitutional authority to revise copyright law, and would, by back-door "default" provisions, violate the rights of absent class members.

IRVIN MUCHNICK

Plugola Central: ECW Press Releases Cover of Irvin Muchnick's 'CHRIS & NANCY,' Story of Benoit Murder-Suicide

See the new CHRIS & NANCY home page,
including pre-order information:
http://benoitbook.com


===============


ECW Press releases cover image of Irvin Muchnick’s new book “Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro-Wrestling’s Cocktail of Death”

MAY 15, 2009. Toronto. ECW Press has released the cover image of its Fall 2009 book Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death by Irvin Muchnick.

“Chris & Nancy” is expected to be in stores around September 15th, 2009. An image of the front cover, along with the text of the back-cover blurb copy, can be viewed at http://muchnick.net/benoitcover.pdf

Exploring the steroid-fueled world of professional wrestling, this riveting chronicle uses public records, interviews, and investigative analysis to produce the authoritative account of how Chris Benoit killed his wife Nancy, their 7-year-old son Daniel, and himself. Equally revealing was the prelude – an industry lifestyle responsible for the deaths of hundreds of Benoit's fellow performers, including his best friend, Eddie Guerrero. Eager for its profitable shows to continue without interruption, and desperate to head off calls for regulation, Vince McMahon's World Wrestling Entertainment, a billion-dollar multinational corporation, published contradictory and misleading timelines of what it knew and when it knew it.

New York Post reporter Phil Muschnick writes in the book’s foreword, “The Benoit murder-suicide was one of the most sensational crime stories of 2007, and it cried out for the scrutiny of someone with a longer attention span and more intellectual integrity than the local authorities, the media, and Congress brought to bear on it. If you can read what Irv has dug up and continue to turn your head, then your powers of denial exceed mine.”

Irvin Muchnick (www.muchnick.net) is author of Wrestling Babylon: Piledriving Tales of Drugs, Sex, Death, and Scandal, and co-author of Benoit: Wrestling with the Horror That Destroyed a Family and Crippled a Sport (both ECW Press, 2007).
###
Media contact:
Simon Ware,
Publicity Director
ECW Press
simon@ecwpress.com

A good one on the Google Books outrage today in The Washington Post by the Internet Archive's Brewster Kahle, headlined "A Book Grab by Google":

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051802637.html

Freelance journalists are fortunate that the Google settlement controversy exploded just as our settlement was reaching the Supreme Court on unrelated grounds. Google is getting hammered ... by competitors, by public-access guardians, by infringed authors. Any way you look at it, it's bad news.

The Google settlement and the Freelance settlement (Reed Elsevier v. Muchnick) are different in the sense that the latter involves no royalty registry and, arguably, no de facto monopoly. But one of the plaintiff players, the Authors Guild and its sellout lawyer, is the same, and so is the illegal process of binding absent class members by default to an ambitious global settlement that unilaterally widens the scope of what originally was a simple piece of litigation to redress past damages. Don't let anyone try to peddle the idea that the two cases have nothing to do with each other.

Obama And Antitrust: Not Fit to Print in The New York Times

To the Editor:

"Administration Will Strengthen Antitrust Rules" (news article, May 11) misses the key question of whether this goal will be hindered by any of President Obama's campaign contributors and supporters. The key early test will be Eric Schmidt, the chief executive of Google and a technology adviser to the President.

Google faces antitrust scrutiny on at least two fronts, according to recent reports. The Google Books class action settlement -- negotiated by the Authors Guild and the Association of American Publishers -- faces a growing chorus of objections from authors, librarians and consumers, and a federal judge has postponed the fairness hearing for four months. Meanwhile, the Justice Department is studying the settlement for alleged violations of the Sherman Act.

In addition, the Attorney General is looking at whether Schmidt's presence on the board of technology competitor Apple runs afoul of the Clayton Act's prohibition against "interlocking directorates."

If Google winds up getting lookaway passes in both scenarios, there will be justifiable skepticism that antitrust division head Christine A. Varney's strong words are being matched by the Administration's deeds.

Irvin Muchnick
Berkeley, Calif., May 11, 2009

Links to the Latest Filed Google Objections, Opt-Outs, Etc.

Again courtesy of Justia.com.

* Library Association comments: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/100/

* Spectrum Literary Agency-represented authors and estates opt out: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/101/

* Australian Society of Authors: "That the heirs of great First Amendment traditions acquiesce in this crude censorship mechanism saddens and disappoints America's friends down under." http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/102/

More Google Antitrust And Litigation -- Trademark Stuff

See "Companies Object to Google Policy on Trademarks," http://www.nytimes.com/2009/05/15/technology/internet/15google.html?_r=1&ref=technology.

I want to reemphasize something I've been saying a lot. The Google-as-Big-Brother image is overdrawn. Google is innovating and making money. That's what it does.

It's just that there are moments in our turbo-charged capitalist system when things get out of control and power gets dangerously concentrated, and that's why we have antitrust laws. This is such a moment in our history.

For excellent ongoing coverage on the legal aspects of all things Google, I highly recommend the commentary of Santa Rosa, California, attorney and online columnist Richard Koman (@rkoman at Twitter).

Google's Anti-Antitrust PR Offensive

Six days ago I noted that the Google Public Policy Blog had not followed up on its April 29 promise to tackle the hard questions about the now-teetering Google Books settlement. And it still hasn't.

Google Writ Large, however, did post, on May 8, a discussion headlined "Google's approach to competition." The link is http://googlepublicpolicy.blogspot.com/2009/05/googles-approach-to-competition.html. This is obviously part of a PR offensive in the face of multi-front antitrust investigations. To Google's credit, its own post links, undefensively, to a news item headlined "Google Boosts Lobbying, Media Outreach to Combat Antitrust Concerns," which even recites the company's lobbying expenditures as found on the database of the Center for Responsive Politics.

I've written a letter to The New York Times about its front-page article yesterday, which touted the Obama Administration's professed heightened commitment to antitrust enforcement, but without once uttering the six-letter word beginning with "g." If The Times passes on the letter, I'll publish it here.

Digest of Objections Already Filed

Our previous post linked to Robert Kunstadt’s beautiful filing with Judge Chin objecting to the Google Books settlement.

But that was just the first objection filed. The entire case docket, with PDF's of the documents, can be viewed online, courtesy of the website Justia.com. Go to http://news.justia.com/cases/featured/new-york/nysdce/1:2005cv08136/273913/.

On May 5, the Information Law and Policy Center at New York Law School had a deadline for filing its amicus brief addressing the orphan works issue. In asking leave to file an amicus, this party was careful not to term it an objection, but that’s what it is for all practical purposes. That brief is not yet posted. But several other less-developed objections are up:

* April 6: Author Barbara Burke wrote to the court to confirm that she opted out. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/86/. What an excellent idea. As a fellow opt-outer, I am going to write to the court myself, and I’ll post the text at this blog in case other opt-outers want to do the same and could use a template. In this unprecedented threat to creators’ rights, others are taking care of the legalistic rigor. The rest of us should be making our voices heard by the court, in numbers, by creative means.

* April 17: Author Hope Ryden objected by letter. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/84/

* April 20: Author Lee Killough objected by letter. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/90/

* April 20: Jenny Darling & Associates, an Australian literary agency, objected by letter. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/91/

* April 22: Author John Moore objected by letter. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/96/

* April 22: Author David Eddings, another opt-out letter. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/96/

* April 23: Author Shirley A. Young objected by letter. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/95/

* April 24: Author Mayer Brenner objected by letter. http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/94/

'Authors Should Not Even Be Forced to Put Pen to Paper' to Explain Google Objections to Court

I just finished posting Robert Kunstadt's article about the Google Books settlement for the National Law Journal website.

But even better is what Kunstadt directly told the court in his objection. The document can be viewed at http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/74/.

Authors, Kunstadt said, "should not even be forced to put pen to paper to explain why Google's outrageous scheme needs to be stopped."

Google Books Objector's National Law Journal Essay

"TOO BIG TO INFRINGE? Reject the Google Settlement"
The National Law Journal
by Robert Kunstadt

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202430337726&slreturn=1

Recommended Reading While We Wait For Supreme Court Briefs

I don't expect to have much to say about Reed Elsevier v. Muchnick until at least after the filing of the briefs. (The petitioners -- settlement parties -- have a May 18 deadline. We respondents -- objectors -- must file by June 1.)

During this interlude, a firestorm has engulfed the related Google Books settlement. Again, I recommend, at a minimum, opting out there, and I'm trying to point fellow authors to resources. The following are cribbed from the Twitter feed of CopyrightLaw, maintained by Professor Michael Scott of the Southwestern Law School in Los Angeles.

* State attorneys general are beginning to examine Google Books -- this in addition to the probe by the U.S. Justice Department. See http://news.cnet.com/8301-1023_3-10236720-93.html?part=rss&subj=news&tag=2547-1_3-0-20.

* New York Law School professor James Grimmelman, one of the most articulate critics of the deal, is supervising the launch of "a web site dedicated to the Google Book Search settlement that will include discussion forums, a comprehensive archive of settlement documents and related commentary, and a tool for users to insert their own analyses and commentary on individual paragraphs of the proposed settlement." See http://www.libraryjournal.com/article/CA6656902.html.

* On a somewhat related note, I suggest that everyone read the post "Free Does Not Mean No Business Model" at techdirt, http://techdirt.com/articles/20090507/1743534788.shtml. This focuses on the misconception that many consumers and even many writers have held for years: the idea that just because there is no direct download fee for content in some for-profit models, that the content is therefore free and some kind of altruistic public service. From day one, the public education challenge for creators who are confronting corporations to get their fair share of the revenues in new technologies has been to cut through such cant.

And Google's Response Is ...?

As noted earlier, Google's Adam Smith posted on April 29 to the Google Public Policy Blog in response to the news that the Google Books settlement both was being delayed by Judge Denny Chin for four months and was being investigated by the Justice Department for possible antitrust violations. Euphemistically, Smith wrote, "Over the last few weeks we've heard a number of questions." He promised to attempt to answer them "over the coming days."

Still waiting for those answers, Adam.

The answer may be that Google has no answers -- that the company is asserting that sanctifying Google Books as a monopoly, by the irregular means of a private settlement of litigation for past infringement, "will expand access" (as the headline of Smith's post asserted), so the Sherman Antitrust Act can be damned.

Not a winning argument.

Irv Muchnick

Google Has Two Antitrust Balls in the Air

"Board Ties at Apple and Google Are Scrutinized," The New York Times headlines today. See http://www.nytimes.com/2009/05/05/technology/companies/05apple.html?_r=1&scp=3&sq=Google&st=cse.

So Google is looking at two (at least) antitrust probes. One, of course, is the Justice Department's examination of whether the proposed Google Books class action settlement runs afoul of the Sherman Act. This new one involves whether Google and Apple have "interlocking directorates," which were outlawed by the Clayton Act.

The buzz at Twitter is that Google's CEO, Eric Schmidt, is on the verge of quitting the Apple board anyway. But that speculation centers not on antitrust implications, but rather on speculation that Google and Apple are or soon will be in a bidding war for Twitter.

Canada's Robertson Case Settled

The Heather Robertson class action -- Canada's version of the Tasini lawsuit -- has been settled. In 2006, Canada's Supreme Court had ruled, 5-4, in favor of the freelance journalists and against the country's largest media companies. The Toronto Globe & Mail coverage of the settlement is at http://www.theglobeandmail.com/servlet/story/RTGAM.20090505.wsettle05art2141/BNStory/National/home.

Must Read: 'Patent System Helps Google Violate Copyright'

"Google Books powered by patented scanning technology"
by Richard Koman

http://government.zdnet.com/?p=4741

Wired.com's Google Books FAQ Is Incomplete

Wired.com has published a Frequently Asked Questions article about the Google Books Mess -- what Wired calls "The Fight over the Google of All Libraries." Go to http://www.wired.com/epicenter/2009/04/the-fight-over-the-worlds-greatest-library-the-wiredcom-faq/.

The piece is witty and readable and basically accurate, except for one incomplete answer:

===

Is the opposition to the settlement all about the so-called orphans?

Yes....

===

Wrong!

The correct answer is, "Orphan works are front and center, but there are numerous other issues from both author's rights and public interest perspectives. The settlement is a bad deal for authors who have been infringed by Google. Also, the impossibly dense and global model for Google's future practices, including an illegal license-by-default mechanism, is effectively a compulsory license that has no place in private litigation. Resolution of bedrock copyright policy problems affecting everyone are properly the province of Congress, or at the very least of industry-wide negotiations involving all the stakeholders."


Irv Muchnick