More Catching Up With Google -- And Linking it to Reed Elsevier v. Muchnick

Blog readers may have noticed that I have failed on my promise to catch up comprehensively with the news on the beleaguered Google Books settlement. I've just been too busy on other fronts. Besides, the news has been so relentless and delivered through so many mainstream sources that my $0.02 were truly redundant.

But with thanks, again, to Anita Bartholomew, my co-objector in Reed Elsevier v. Muchnick, I want to point everyone to two developments in Google that either haven't yet been mentioned here at all or have gotten short shrift.

Scott E. Gant, a lawyer and author, has filed a devastatingly thorough set of Google objections. The New York Times reported this more than a week ago. See http://www.nytimes.com/2009/08/19/technology/internet/19google.html?scp=1&sq=Gant%20AND%20Google&st=cse.

Anita Bartholomew, closely studying the Gant filing, notes some uncanny similarities between the flaws in the Google and Freelance settlements: not just the "license by default" but also gross misstatements of foundation facts and overwhelming evidence that the plaintiff author classes have been inadequately represented. More on this later -- life permitting.

The more these two cases are understood as a package, the more, I believe, that will hasten the solution of a fair and comprehensive royalty system that includes fully negotiated (and probably legislated) compulsory licenses, rather than sneak future rights grabs by plaintiff corporations that are caught infringing.

On another note, I did link earlier to the American Society of Journalists and Authors announcement of opposition to the Google deal. But it's worth adding the following full text of ASJA's letter to its membership, which both discusses in greater depth the coalition trying to stop that settlement and has sharp language. The latter, in my humble opinion, applies with equal force to the Freelance settlement, in which ASJA (along with the National Writers Union) joined the Authors Guild as an "associational plaintiff." See below.

***************

Dear ASJA members:

Your ASJA board of directors has decided to join the Open Book
Alliance -- a coalition of librarians, rights activists, legal
scholars and yes, large corporations -- in the hope of calling
attention to what we believe are serious deficiencies in the Google
settlement plan as it now exists. All Open Book Alliance members,
including ASJA, do not see this settlement in exactly the same light.
ASJA is not endorsing the viewpoint of all alliance members, nor are
they endorsing ours. Each group will contact the court individually.

We're joining together because time is short, the settlement document
is complex and few writers -- let alone the general public -- know
what really is in this settlement.

As writers and readers, we all loved the idea of a huge digital
library, a treasure-trove of information. Then, as it began work on
the Google Library Project, Google the Good morphed into Google the
Grabby. It now has scanned 7 million books minus the permission of
copyright owners. The settlement negotiated between Google, the
Authors Guild and publishers will go before the court for approval on
October 6, 2009. As now written, it tosses writers a little hush money
-- the lawyers get more -- and if that isn't bad enough, Google walks
away owning the rights to all orphan books. (Millions of books!)
Google also would get a whopping 37% of profits from future digital
book sales. Because this will be the only game in town, writers who
want to sell digital books at all will be forced to do so on the
settlement's terms -- forever.

Major issues we see:

- Google gets to write copyright law

- If you don't opt out by a specific date and Google already has
scanned your book, never mind what the law says. Your book stays in
the Google database. Writers should control their works!

- No restrictions on Google's use of reader info

- No language forbidding censorship

- A lock-step future -- the new registry is the sole bargaining agent
for writers and publishers for digital items not yet invented or those
not named in the settlement. (The Kindle isn't named.)

- Too-narrow representation of writers and publishers alike. 32
million books in copyright yet the Authors Guild would be writer's
sole representative on the registry. Ridiculous! Similarly, four major
publishing houses would control the publisher's side of the table,
locking themselves in and every other publisher out.

Friends, I urge you to spread the word -- this settlement is NOT good
for writers!

Please visit ASJA's information page about our stand and the Google
settlement and share it with friends:
http://www.asja.org/google

The Open Book Alliance site is here:
http://www.openbookalliance.org

Salley Shannon
ASJA president for the ASJA board

Not Fit to Print in the San Francisco Chronicle

The San Francisco Chronicle had a good story last week about the Google Books settlement -- see http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/08/19/BUQH199RJU.DTL.

Here's my unpublished letter to the editor:


Thanks to James Temple for his lucid account of what many observers feel is the fatally flawed Google book-scanning settlement. Your reporter put his finger on what I think is the key problem with the deal: its incredible complexity and opacity.

I lead a slate of objectors to the proposed settlement of a somewhat similar class action by freelance writers over the reuse of previously published newspaper and magazine articles on electronic databases, without the rights holders' permission or compensation. A technical issue in that case is scheduled for an October hearing at the U.S. Supreme Court, which has named the case Reed Elsevier v. Muchnick. (The defense group includes the parent company of the Chronicle.)

The Google and freelance cases both highlight the need for "compulsory licenses" linked to the kinds of standard royalty systems developed for the music industry upon the advent of recording equipment and radio. These are good for independent creators, for information consumers and for the diversity and vitality of our culture. Such arrangements need to be negotiated fully and openly through acts of Congress. The alternative "licenses by default," crafted privately and vaguely by fee-seeking litigation lawyers, are an abuse of the class-action system and they do not get the job done.

'Google Rivals Will Oppose Book Settlement' -- NY Times

Continuing our news catch-up in no particular order, The New York Times yesterday reported: "Amazon, Microsoft and Yahoo are planning to join a coalition of nonprofit groups, individuals and library associations to oppose a proposed class-action settlement giving Google the rights to commercialize digital copies of millions of books."

See http://www.nytimes.com/2009/08/21/technology/internet/21google.html?scp=2&sq=Google&st=cse.

Catching Up With Google Books News (Good for Authors, Bad for the Settlement)

The crush of life has made me fall behind on a lot of important news in recent days.

Let's start with the formidable and lucid Edward Hasbrouck, the travel expert and author of the Practical Nomad books and blog. Brother Hasbrouck, who opted out of the freelancers' settlement (now Reed Elsevier v. Muchnick) in 2005 -- though not before first exposing some of the worst untruthful statements of the named plaintiffs' lawyers -- has now written a thorough and compelling paper about the Google Books deal and its implications for writers' rights. See http://hasbrouck.org/articles/GoogleBooks-WritersRights.pdf.

Edward's Practical Nomad blog also has just about the best set of links I've seen on all aspects of the objections to the Google settlement. See http://hasbrouck.org/blog/archives/001703.html.

That should be enough to get y'all started. More later.

Brief Defending Second Circuit Filed

A lot of news to catch up with. First, the brief supporting the Second Circuit ruling on jurisdiction was just filed by Deborah Merritt, the amicus appointed by the Supreme Court for that purpose. You can view it at http://muchnick.net/merrittbrief.pdf.

ASJA Opposes (Sort of) the Google Book Settlement

Anita Bartholomew -- my co-objector in the freelancers' settlement now at the Supreme Court, as well as a spot-on critic of the Google Books settlement -- passes along the statement "American Society of Journalists and Authors Joins Groundswell of Opposition to Google Book Settlement" (http://www.asja.org/google/).

Anita comments:

Reading the statement, ASJA's main beef may be that it's left out of the Book Rights Registry. But what may be most interesting to us is this section, as it seems a direct contradiction to the Freelance settlement where ASJA didn't believe writers should have control of their works:

"ASJA says, stop the Google-ization of copyright law. Do we really
want Google and a committee making law? Essentially, that is what 'opt out'
requirements in the proposed settlement do. The ASJA believes that if
copyright law needs to be nimbler in this digital age, it still should be
Congress calling the plays. We will ask the court to direct the removal
of deadlines for opting out of the Book Search. Copyright holders should
control their works."

Authors Guild on the Unbearable Flexibility of Opting Out

Jim Milliot of Publishers Weekly has coverage of a conference call "arranged by supporters of the Google Book settlement for Thursday afternoon after they grew alarmed by what they said was the misinformation about the deal being released by William Morris Endeavor." Authors Guild executive director Paul Aiken "took the lead in making the case why the deal is a good one for authors."

See "Authors Guild Again Touts Benefits of Google Settlement for Members," http://www.publishersweekly.com/article/CA6676787.html?nid=2286&rid=#CustomerId&source=link.

The story includes this gem:

"Using what is by now a familiar line, Aiken said the only reason an author should opt out of the settlement is to maintain his or her right to sue Google. Staying in the settlement gives authors much more control over what Google can do with their books, he said, noting, for example, that authors can change their mind as many times as they like about how they want (or don’t want) their books to be displayed in the Google database."

There are several problems with the Authors Guild's appeal. One is that it simply pleads, "Trust me." Trust the same negotiators who have been trying to give away the Tasini v. Times freelance journalists' victory in exchange for peanut shells and an eternal regime of all-rights contracts? Not so fast.

But the fundamental problem here is gross illogic. Opting out is, prima facie, a more flexible position than opting in. Only the settlement parties are asserting that they know exactly what will happen if their handiwork gets approved. Independent experts agree that it's full of loopholes. Independent non-experts don't even need experts, independent or otherwise, to know that there is such a thing as the law of unintended consequences.

So why are we being railroaded into getting on board a deal that is urgent only for Google and for the viability of the Authors Guild's Book Rights Registry?

Authors should be assessing the advantages to them of online scanning on a book-by-book basis. If it works for you for one or more of your books, you then should figure out what the settlement and the Registry accomplish for you -- Anita Bartholomew has demonstrated rather convincingly that they grant you something considerably less than most-favored-nation status.

Armed with that knowledge, you can still opt in if you want. It's the lazy writer's solution. You don't have to do anything, and you can leave your business interests in the hands of self-appointed guardians with their own agenda.

But don't try to sell us on the idea that the only alternative to doing nothing is to hire an expensive lawyer tomorrow and sue Google yourself. Ain't so.

Japanese Authors And the Google Opt-Out Bandwagon

Yukihiro Funaki of the Japan Visual Copyright Association emailed me with important information about how the proposed Google Books settlement is playing across the Pacific. JVCA, an association approved by Japan's Ministry of Culture, is both a private licensing company and a nonprofit promoting copyright awareness. JVCA represents nearly 400 poets, novelists, journalists, critics, and illustrators.

According to Funaki, about 190 individual Japanese authors have opted out of the settlement. JVCA is the only organization there to have chosen "group opt-out," which Funaki described as a brave step "because people are afraid of being ostracized." The 3,000-member Japan Writers Association announced support of the settlement.

This article in The Japan Times, "Google Books leaves Japan in legal limbo," discusses some of the reaction and authorial politics:

http://search.japantimes.co.jp/cgi-bin/nc20090722a1.html

National Writers Union Says 'No' to Google Books Settlement

"National Writers Union Opposes Settlement
of Class-Action Lawsuit Against Google
for Copyright Infringement"

http://www.nwubook.org/NWU-Google-Release.pdf

Authors Guild Opts Out of the Truth About the Google Settlement

The William Morris Agency recently advised its literary clients to opt out of the proposed Google Books settlement. Your humble blogger doesn't know if Morris was following his lead, but I came to the same conclusion for myself, and the same recommendation for others, some time ago. Opting out is the right move for most authors, for a lot of reasons.

The Authors Guild -- co-architect of the Google deal as well as of the freelance electronic database sellout (now known at the Supreme Court as Reed Elsevier v. Muchnick) -- disagrees, as you would expect. But in a letter to its membership, the Guild frames the argument dishonestly. According to the Guild, "[H]ere's the deal in one sentence: unless you want to sue Google, there's no good reason to opt out of the settlement."

Oh really?

It's not a good enough reason to opt out of the settlement because the agreement is so dense and confusing that no one can understand it?

It's not a good enough reason to opt out of the settlement because an individual author can strike a deal with Google for better terms under the existing Partners Program?

Or simply because there's little harm in kicking back and letting this whole sucker shake out a bit more? The anticipated ad-click revenue, enormous in the aggregate, is miniscule on a book-by-book basis; surely the immediate "opportunity cost" for the average author amounts to pennies, nickels, dimes, quarters, or at most a few Susan B. Anthonys.

Folks, trust me when I say that book authors aren't the parties who are desperate to close this deal. And that they don't "have" to sue in order to justify the act of opting out. Rather, it is the Authors Guild that "has" to opt in, lest it lose the funding and raison d'etre for its precious, market-strangling book rights registry.

So here's the deal in one sentence: If you want to keep your options open, opt out. Duh!

Division of Oral Argument at Supreme Court

The docket for Reed Elsevier v. Muchnick now shows that Solicitor General Elena Kagan has filed a motion asking the Supreme Court for leave to participate as an amicus curiae ("friend of the court") in the October 7 oral argument.

This is an opportunity for me to explain the breakdown of the oral argument as best I can. If I find that I have made a mistake I will quickly correct it.

The solicitor general is the No. 3 official in the Justice Department, and her job is to argue the government's position in cases before the Supreme Court. Kagan already has filed an amicus brief supporting the position of the "petitioners" (the publisher-defendants in the freelance writers' copyright class-action settlement). That position calls for the justices to overturn the spontaneous ruling by the Second Circuit Court of Appeals that the settlement is invalid because it includes the claims of both registered and unregistered copyrights.

In this case, the "respondents" (the named plaintiffs in the freelance settlement, plus the Muchnick objectors) all agree with the petitioners -- we want the Second Circuit decision reversed, though for different reasons. The petitioners, and those respondents who were parties to the settlement, want the settlement ultimately reinstated. Those respondents who were objectors want the Second Circuit reversed so that we can all go back there and argue the merits of the settlement, on which we disagree.

Since all the petitioning and responding parties are in basic agreement on the specific issue before the Supreme Court, there is no classic conflict. The justices therefore appointed an amicus, Deborah Jones Merritt, an Ohio State law professor, to defend the Second Circuit decision.

On October 7, the case for reversal will be argued, most likely, by Charles Sims of Proskauer Rose, attorney for Reed Elsevier. Solicitor General Kagan has asked for a portion of Sims' time, and such requests are almost always routinely granted.

The case for upholding the Second Circuit ruling will be argued by amicus Merritt. If any time is allotted to either the Muchnick objectors or the named plaintiffs, that time would come out of Merritt's. Such time probably would only address certain technical grounds for possible reversal of the Second Circuit. Whether those grounds will be up for discussion at all on October 7 can't be determined at this point because Merritt's brief defending the Second Circuit has not yet been filed.

Breaking Down Authors Guild's Spin on Google Books

Google Books critic (and Reed Elsevier v. Muchnick co-objector) Anita Bartholomew has posted her newest analysis, and it is compelling.

See "Authors Guild sends authors another misleading letter about Google settlement"
at http://editorialconsultant.wordpress.com.

More 'Reed Elsevier v. Muchnick' Behind-the-Scenes Trivia

Readers of this blog may have noticed how much I enjoy emphasizing that the 2001 Supreme Court vote in Tasini v. New York Times was 7-2. One of my sound bites goes something like this: "When Antonin Scalia and Ruth Bader Ginsburg are on the same side, you have consensus."

One of the two minority holdouts in Tasini was Stephen Breyer (the other was John Paul Stevens). And with the Court now taking up Tasini offshoot Reed Elsevier v. Muchnick, it is useful to take note of some of Justice Breyer's background. (It is also important to remind everyone that the question currently before the Court is jurisdiction of settlements including claims of unregistered copyrights -- not, at least as yet, the merits of the freelance writers' class-action settlement, to which I and others object.)

The mediator of the freelance settlement was Kenneth Feinberg, best known for his work with the 9/11 victims' compensation fund.

Feinberg and Breyer are old friends and colleagues. In a June article about the Sonia Sotomayor nomination, National Law Journal's David Ingram called Feinberg "a prominent defender of Breyer ... when questions arose [during Breyer's confirmation hearings] about Breyer's investment in Lloyd's of London."

Behind the Scenes at 'Reed Elsevier v. Muchnick'

Last night your humble blogger met both the sister and the mother of Jonathan Tasini, erstwhile National Writers Union president, lead plaintiff in Tasini v. New York Times, and now, I'm told, embarked on his second quixotic run for the U.S. Senate seat in New York. (Jonathan challenged Hillary Clinton in the 2006 primary.)

The place was Berkeley's Julia Morgan Young People's Performing Arts Center, and the occasion was opening night of Stagedoor Conservatory's production of Grease. Both Dina Tasini's daughter Emma and my daughter Mara are in the cast. (Come on out this weekend! Curtain time is 7:30 p.m. Saturday and 2:00 p.m. Sunday.)

I mentioned to the Tasinis that I was assistant director of the NWU when Mara was born, at a time when we were all waiting for Tasini v. Times to play out in the courts. And I added that, as life would have it, I was now leading a slate of objectors to a settlement that is, itself, before the Supreme Court.

Why do you oppose the settlement? Jonathan's mother asked. "They got millions."

At which point I gently suggested that we keep the focus on the young thespians' big night, avoid politics and religion, and discuss only the weather.

Justice Sotomayor and the Freelancers

Sonia Sotomayor has taken the oath and joined the Supreme Court. As noted here at the time of her nomination, she was the district court judge who, in 1997, made the initial ruling in the Tasini v. New York Times case that was the seed of the current Reed Elsevier v. Muchnick. Sotomayor interpreted Section 201(c) of the Copyright Act as favoring the publishers', rather than the writers', position, and she was resoundingly reversed -- by the Second District Court of Appeals in 2000 and by the Supreme Court (on a 7-2 vote, with Scalia and Ginsburg both in the majority) in 2001.

Reed Elsevier v. Muchnick turns on the technicality of the jurisdiction of the federal courts to oversee the settlement of a consolidated class action copyright infringement suit emerging from Tasini. It is also an opportunity for Sotomayor to help get right something she at first got wrong.

Copyright Comic Relief

Molly Shaffer Van Houweling, a law professor at the University of California, is my frontrunner for tortured academic writer of the year for her jargon-laden pudding of a paper entitled "Author Autonomy and Atomism in Copyright Law." You can read the abstract (and get the opportunity to download your own copy!) at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=449531#show1422016.

From the abstract:

"The power and ubiquity of personal computing and the Internet have enabled individuals - even impecunious amateurs - to create and communicate in ways that were previously possible only for well-funded corporate publishers.... In this project I aim to place contemporary copyright atomism in historical and doctrinal context by documenting copyright law’s previous encounters with proliferated, distributed, and fragmented copyright ownership. Along the way I examine how copyright law has encouraged and discouraged atomism and managed its consequences. This history demonstrates the enduring relevance of my concerns within copyright policy, highlights countervailing interests, and provides a framework for thinking about how to alleviate the unfortunate consequences of atomism - and how not to."

Library Books Advise DOJ on Proposed Google Books Settlement

See http://www.ala.org/ala/newspresscenter/news/pressreleases2009/july2009/doj_wo.cfm.

(Thanks to Anita Bartholomew)