Google Books And Obama Justice (full text)

[originally published on November 18 at Beyond Chron, http://www.beyondchron.org/articles/In_Google_Books_Settlement_2_0_Obama_Justice_Is_the_Great_Decider_7565.html]


In Google Books Settlement 2.0, Obama Justice Is the Great Decider

by Irvin Muchnick

An audacious global settlement of a copyright dispute between Google’s “ask forgiveness, not permission” book-scanning project and two trade groups, representing some book publishers and some authors, was sent back to the drawing board two months ago after the Justice Department filed a blistering 28-page “Statement of Interest.” The brief attacked the deal on antitrust, copyright, and class-action abuse grounds.

The parties last week emerged from a furious round of further secret negotiations to issue a revised settlement that they hope will spur quick new approval. Google Books Settlement 1.0 was cut-and-pasted, sliced, diced, pureed, processed – and, above all, triangulated in an effort to meet concerns articulated formally by hundreds of domestic creators, access and privacy advocates, and potential Google competitors, and less formally by foreign governments and constituents.

But make no mistake: It was the loud voice of Obama Justice that forced this strategic retreat and reload. And it is Obama Justice that will decide the fate of Google 2.0. The case judge, Denny Chin, has been nominated for promotion to the Second Circuit Court of Appeals. The administration already faces heavy criticism for the snail’s pace of its judicial and other appointments, despite the advantage of a lopsided Democratic majority in the Senate, which reviews them. So does anyone really think Judge Chin will call an audible after William F. Cavanaugh, the deputy assistant attorney general of the Antitrust Division, sends in a new play?

That’s why I’ve told my friends to circle February 4, 2010 on their calendars. Under the current proposed schedule, that is the deadline for Justice’s response to Google 2.0.

The new version takes one huge chop out of the old one by confining itself to books with copyrights registered in the U.S., plus those published in Britain, Canada, or Australia. This will approximately halve the universe of books digitized by Google without prior consent.

However, on the threshold provision of requiring rights holders to “opt out” if they don’t want to participate, rather than “opt in” if they do, 2.0 returns a gigantically lawyered hedge. As it stands, rather than forging full-speed ahead when rights holders cannot be located – the so-called “orphan works” scenario – Google and a proposed Book Rights Registry (which will be controlled by the named plaintiffs: the Association of American Publishers and the Authors Guild) would deputize and fund something called the Unclaimed Works Fiduciary. The UWF would more aggressively track down the authors and publishers who control the rights, and would help set terms for future use of the books that remained orphans. The settlement agreement provides for accomplishing the latter “to the extent permitted by law.”

Well, thanks a lot! James Grimmelman of the New York Law School, the most exhaustive and astute independent Google deal-watcher, has observed that what this adds up to is an invitation to Congress to wrestle with the comprehensive overhaul of copyright it hasn’t undertaken since 1976 – while private parties get a head start on their own rendition of what that reform should look like. Calling it “a clever hack,” Grimmelman doubts that it is legal.

I call it a legal tongue-twister worthy of the late, great Theodor Geisel, “Dr. Seuss.” Unlike some of my fellow writers, I think the ultimate solution is, indeed, an “opt-out” system – but one that must be established openly by Congress via “compulsory license” legislation, which would include royalty schedules fairly balancing the interests of publishers, creators, and the public. The loose model is ASCAP, which took on a similar role in the music industry with the advent of radio and recording equipment.

Zoe Lofgren, the Silicon Valley congresswoman who receives campaign contributions from CEO Eric Schmidt and other Google executives, claims the settlement achieves what those in the legislative branch “failed to achieve.” I say Lofgren should speak for herself.

In a related vein, Google is the subject of a new book by The New Yorker’s Ken Auletta entitled The Googlization of Everything. Seemingly unaware of the implications of what she was reporting, the San Francisco Chronicle’s Julian Guthrie gushed about Schmidt inviting Auletta to the Google campus for a reading, and the book’s sale at discount to company employees.

Technology and social critic Andrew Keen, for his part, read The Googlization of Everything and came away stunned by Auletta’s almost preternatural ability to write such a bland and inoffensive tome on one of the most polarizing institutions in America today.

Now Google Books Settlement 2.0 rests in the hands of Obama Justice, which will decide whether cutting this baby in half was good enough.


Irvin Muchnick (http://muchnick.net; http://twitter.com/irvmuch) is lead respondent in the current Supreme Court freelance writers’ case Reed Elsevier v. Muchnick, whose issues are similar to those of the Google case. He is also author of the new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.

Confidential To Pam Samuelson: Please Add a Teaspoon of Vision to Your Abstract Critique of Google Books

Fellow Berkeleyan Pam Samuelson, the distinguished University of California law professor and director of the Berkeley Center for Law & Technology, has been commenting on the flawed Google Books settlement for The Huffington Post. Her “New Google Book Settlement Aims Only to Placate Governments” (http://www.huffingtonpost.com/pamela-samuelson/new-google-book-settlemen_b_358544.html) happened to precede by about 12 hours my own “In Google Books 2.0, Obama Justice Is the Great Decider” for Beyond Chron (http://www.beyondchron.org/articles/In_Google_Books_Settlement_2_0_Obama_Justice_Is_the_Great_Decider_7565.html).

Samuelson is somewhat more partisan on this subject, and hence more scathing. (On Reed Elsevier v. Muchnick, or "Freelance," it’s no doubt the other way ‘round: Samuelson hasn’t said anything about that case.) There are, however, some similarities in our Google Books analyses. Like me, Pam looks at the fallout of the Justice Department brief on the original settlement proposal and concludes that the changes in 2.0 owe more to international diplomacy than to thoughtful domestic policy.

But I’m also struck by Samuelson’s level of abstraction, a common trait of academics. Your humble blogger speculates on what’s going to happen next with Judge Denny Chin; Pam ends her essay with the fervent hope that the unnamed “judge who is responsible for deciding” will do the right thing.

I’m taking some liberties in referring to Samuelson as “Pam,” but we have had a sporadic and friendly correspondence over the years. In 1997 she won a MacArthur Fellowship, the so-called “genius award,” and richly deserved it. She has forgotten more about digital copyright law than I will ever know – obviously.

That said, I wish that she, like many other well-positioned observers, would connect a few of the dots and talk a little more about the solution that the Google paradigm – if substantially corrected than rather just tweaked – could go a good distance toward defining.

The first class action in which I was involved, Ryan v. CARL, against the now-defunct fax article delivery service UnCover, settled in 2000 for $7.25 million. When I became a litigation consultant, after a term on the staff of the National Writers Union, I hoped that the hammering of some of these dead-bang infringers of freelance writers’ rights would lead to a negotiated royalty system. Yet in the coverage of the UnCover settlement in the San Jose Mercury News, Pam's quote was this: “You run the risk of killing the goose that lays the golden egg.” (In fairness, the newspaper reporter might have phrased a question poorly or published an out-of-context answer.)

Today, for me, the key point about Google 2.0 is not that a huge corporation is making a power grab – which it is; nor that it deliberately released the revised settlement in the middle of the night and ducked a debate on the NewsHour with Jim Lehrer – which it did; nor even that the language about an Unclaimed Rights Fiduciary operating “to the extent permitted by law” fudges the root problem – which it does.

For me, the key point is that between Google and the Freelance case now at the Supreme Court, the courts have exposed about all there is to expose with respect to the need for Congress to step in and do its job on copyright reform. In that process, everyone will have to give up something. Publishers will have to give up their virtually no-cost (Freelance) or monopolized (Google) stranglehold on the commercialized public record. Creators will have to give up their quaint notions of complete control over what has already been published. Users will have to learn that information is not free, but has a price – what should, to be sure, be a fair price, and one that reduces rather than widens the chasms in our two-tiered society.

(P.S. to Pam: If you thought that was me ducking into the Cheeseboard in North Berkeley the other day, you were right – I was hiding from a rabid mob of pro wrestling fans.)

'In Google Books 2.0, Obama Justice Is the Great Decider' ... today at Beyond Chron

"In Google Books Settlement 2.0, Obama Justice Is the Great Decider"

http://www.beyondchron.org/articles/In_Google_Books_Settlement_2_0_Obama_Justice_Is_the_Great_Decider_7565.html

Eric Hellman on Google 2.0 -- Recommended Reading

"The Book Rights Registry Unclaimed Works Fiduciary: Powerful Regent or Powerless Figurehead?"

http://go-to-hellman.blogspot.com/2009/11/book-rights-registry-unclaimed-works.html

Form 19

Copyright law blogger Shourin Sen has a new item headlined "Form 19 and oral arguments in Reed Elesevier v. Muchnick." See http://www.exclusiverights.net/2009/11/form-19-and-oral-arguments-in-reed-el/.

The analysis is densely technical and doesn't try to connect to the larger issues in the case in a way that would lend to further comment by me. But thanks for the contribution to the scholarship of the question of whether copyright registration should be construed as mandatory or jurisdictional.

DOJ Response Will Determine Fate of Google Settlement 2.0

Circle Thursday, February 4, 2010, on your calendar. Under the approval schedule proposed by the parties of the revised Google Books settlement, that is the date when the Justice Department will file its response to Settlement 2.0, which was submitted last Friday to Judge Denny Chin.

Make no mistake. After authors, librarians, privacy advocates, and Google's would-be competitors screamed bloody murder, it was the 11th hour "Statement of Interest" by the government, combined with the complaints of foreign governments, that forced the parties to punt at the October 7 fairness hearing.

The new version of Google's project, somewhat less audacious in scope, now does not encompass "orphan works" the world over, but only English-language works published in the U.S., Canada, Britain, and Australia. There are also numerous changes on the margins. However, the default of exploiting the future rights of absent class members who do not opt out is still there.

What we don’t know, of course, is what has happened behind the scenes. The process here is a kind of legislation-by-litigation: the de facto change in copyright law that it contemplates, under our system, should be deliberated by Congress. During the recent hearing by the Senate Judiciary Committee, Congresswoman Zoe Lofgren – who represents the California district in which Google is headquartered, and whose campaigns receive financial backing from Google executives – gave us the extraordinary spectacle of a legislator deferring to other branches of government on matters of legislative purview: “At this point we don’t have a role to play.... [The settlement represents] the private sector achieving what we failed to achieve.”

To extend that image, the talks between the settlement parties and the Justice Department Antitrust Division are a bad analogy to legislative mark-up sessions, or perhaps conference committees resolving different versions of a bill passed by both the Senate and the House of Representatives.

As analyst James Grimmelman alertly noted, Settlement 2.0 does not go as far as the DOJ brief tried to nudge it in fundamental areas. But did the Justice lawyers have an advance peek at the new version, and did they, with bureaucratic winks and nods, give the parties reason to believe that the government would hold further fire?

While other questions of abstract law remain, that is the question.of realpolitik. The answer, most likely, will spell whether the project gets court approval in its present form.

Edward Hasbrouck's Take on Google 2.0

Edward Hasbrouck has some good first thoughts on his reading of Google Books Settlement 2.0. See http://hasbrouck.org/blog/archives/001781.html.

Edward is harsher than I am, and he may be right. "It's still fundamentally an opt-out, license by default system, not opt in," he notes.

He also slams "a really devious catch in the revised proposed arbitration provisions." Authors cannot unilaterally choose to go to court instead of arbitration; bypassing arbitration requires mutual consent.

I don't know if we're back in the top of the first inning, or down to the bottom of the seventh, but there's obviously a lot more here to read, sift, and weigh.

Until You’ve Studied James Grimmelman on Google Settlement 2.0, Don’t Bother Me

The redoubtable James Grimmelman is first and best out of the gate with a comprehensive analysis of Google Books Settlement 2.0, which was filed late yesterday.

Before asking me what I think, go directly to Grimmelman’s “The Laboratorium” (http://laboratorium.net). Do not pass “go.” Do not collect $200, especially if you intend to deposit it with the Authors Guild’s Book Rights Registry. Pending further review, spend your money, instead, on bulk orders for my new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death. Or on a long-term subscription to Dave Meltzer’s Wrestling Observer Newsletter.

Grimmelman, the Dave Meltzer of Google Books settlement watchers, has about as much as you can say in one gulp about Settlement 2.0 in a late-night blog entry headlined “Midnight Madness.” He and his New York Law School acolytes are working feverishly on more detailed comments and resources.

My own instant analysis of Settlement 2.0 is strictly vicarious. I am not a party to the Google case, having opted out. Settlement 2.0 is as much a political document as a legal one. It is an act of triangulation attempting to address objections and comments – hundreds of objections and comments, almost all of them thoughtful, and many of them rigorous – from authors, foreign governments, the Justice Department Antitrust Division, and others.

As part of what I think is the same triangulation process, I suggested, in a letter to Attorney General Eric Holder, that Google Books be considered in tandem with the Supreme Court freelance journalists’ case, Reed Elsevier v. Muchnick. At the time, Grimmelman, among others, pooh-poohed this idea as a bit of a reach, and of course it is. So is Google!

Whatever the flaws of Settlement 1.0, I have always liked its vision of some kind of royalty system. I have wondered loudly why the same vision cannot be applied to the magazine and newspaper articles at issue in Reed Elsevier v. Muchnick. The answer, of course, is that it absolutely can, and especially since the two cases have a common plaintiff, the Authors Guild, which is playing point on the royalty system. But that doesn’t mean it will happen – mostly because freelancers lack the marketplace clout or cohesion of even the relatively powerless and uncohesive community of book authors.

(The Authors Guild’s partners in Freelance, the National Writers Union and the American Society of Journalists and Authors, have broken off and criticized the Guild for its Lone Ranger stewardship of Google Books; NWU and ASJA even joined a new coalition called the Open Book Alliance. And they objected to Google Settlement 1.0 on some of the precise grounds we objectors raised in Freelance! Go figure. Get your scorecards here, everybody. Just as Grimmelman is the eminence grise of Google Books, so is your humble blogger the go-to guy, the “eminence grease,” of the chronicle of 15 years of writers’ struggles to get a toehold on the promise of new technologies to empower them vis-à-vis corporate publishers.)

Immediately, two elements of Grimmelman’s instant analysis jump out at me. One is this:

“The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation. They’re going to try to tough this one out; the DOJ will have to decide whether to back down or to fight, as this amended settlement doesn’t give it one of the central changes it asked for.”

We shall see on that one. The other element is Grimmelman’s observation that an ambiguous provision of Settlement 2.0 authorizing the proposed Book Rights Registry to re-license works “to the extent permitted by law” leaves open the door for Congressional action to sanitize the future practices of this system. I’m not trying to put words in Grimmelman’s mouth, but I think it’s fair to say that he, like me, wonders whether these de facto royalty systems based on “compulsory licenses” blessed by the courts in private litigation are kosher.

At the end of a long day of googling, Congress must step into this mess – these messes, plural – and apply some appropriate democratic process to new information arrangements that will fairly treat the interests of publishers, authors, and the general public.

Where Are You, Congress?

This one in The Wall Street Journal says nothing about writers' rights per se -- but in a highly sophisticated way it makes the point that The Google Problem is one for Congress, not the courts. A must read:

Google and the Copyright Wars
By BRUCE W. SANFORD AND BRUCE D. BROWN
http://online.wsj.com/article/SB10001424052748704402404574523454258004332.html

Copyright Comic Relief Cross-Post (And Self-Promotion)

"Wrestling Observer Discussion Board: Into the Den of the Wolves in Sheeps' Clothing"

http://wrestlingbabylon.wordpress.com/2009/11/11/wrestling-observer-discussion-board-into-the-den-of-the-wolves-in-sheeps-clothing/

Royalties For All

While we wait four additional days for the unveiling of Google Books Settlement 2.0, a post by blogger Chris Bour takes me back, in a serious way, to my recent whimsical discovery that my first national magazine article ("The Game I'll Never Forget," by France Laux as told to Irv Muchnick, Baseball Digest, June 1970) is available on Google Books.

See "Browsing magazines in Google Books," http://chrisbourg.wordpress.com/2009/11/05/browsing-magazines-in-google-books/. (Thanks again to blogger-twitterer Eric Rumsey for the pointer.)

This area brings my work as an activist on this issue full circle. In 1994, I led a group of National Writers Union members in confronting a fledgling fax-on-demand article delivery service called UnCover, an affiliate of a for-profit spinoff of the Colorado Alliance of Research Libraries. UnCover became the first licensee of an even more fledgling collective licensing agency, called Publication Rights Clearinghouse, which I launched for the NWU during my period as its assistant director (1994-97).

In 1997 I left the NWU staff, mostly because Publication Rights Clearinghouse was going nowhere and because I felt UnCover, a dead-bang infringer that was supposed to be working with us to expand it, was instead blowing us off after milking its PR value. I became a copyright litigation consultant and packaged a case against UnCover, Ryan v. CARL, that settled in 2000 for $7.25 million.

And the rest is history.

Much more recently, with the Google Books settlement in suspense and with the Reed Elsevier v. Muchnick (or "Freelance") case at the Supreme Court on a technical jurisdictional question, I wrote to Attorney General Eric Holder to propose that the Justice Department, which had just intervened constructively in the Google case, now use its good offices to coordinate the Google and Freelance cases. The two cases involve the same root issue: the reuse, without permission or compensation, of previously published authors' works.

The news that Google Books has already begun moving seamlessly into magazine article retrieval just underscores that all this litigation, in the public-policy sense, is of one piece. And that a fair and equitable royalty system (which the Google Books settlement proposes but the Freelance settlement does not) is an obvious solution if it can overcome Constitutional hurdles. (I am among those who believe compulsory licenses are probably Congressional, not judicial, business.)

Meanwhile, all of you freelance magazine writers out there can follow the growth of Google Books for yourselves, and get as creeped out as I was when I learned that an obscure 39-year-old article of mine, written when I was 15, is already part of the system.

Google Books Settlement 2.0: Four-Day Extension

The deadline was today for the settlement parties' revision of the Google Books settlement. But as you've probably already read, the parties today asked U.S. District Court Judge Denny Chin for an extension to this Friday, November 13.

What to Look for in Google Books Settlement 2.0

Kenneth Crews, director of the Copyright Advisory Office at Columbia University Libraries/Information Services, has a useful scorecard of bullet points we should be reading closely in the revised Google Books settlement. Settlement 2.0 is scheduled for submission shortly to U.S. District Court Judge Denny Chin. See Crews' blog post "Getting Ready for November 9," http://copyright.columbia.edu/google-books-getting-ready-november-9.

And while you're at it, check out Crews' September 21 post, "Justice and Google Books: First Thoughts about the Government's Brief," http://copyright.columbia.edu/justice-and-google-books-first-thoughts-about-governments-brief.

My own perspective has fewer specifics and more cynicism. I am focused on the money quote from the Justice Department's intervening "statement of interest":

As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.

Ah yes. A threshold matter. Public, not merely private, concern. The kind of policy change implemented through llegislation, not through a private judicial settlement.

It seems to me impossible to satisfy this standard in a few frenetic weeks of renegotiation -- most significantly, renegotiation by the private settlement parties themselves.

If Settlement 2.0 is a tweak rather than an overhaul, and the government either endorses it or doesn't raise a peep this time, then the initial exercise will have accomplished little, except possibly a play to the grandstands by the Antitrust Division. I hope that doesn't happen.

GoogleCreep

I am not one who gets carried away by the theme of Google's Big Brother creepiness. I realize this is a major concern for many others, whether or not they're writers, but I try to keep the focus on copyright law and policy, balanced with information enhancement. As Clarence Darrow pointed out at the Scopes Monkey Trial, with innovation and progress we often lose a little something even as we gain a lot of something else.

That said, I've had two online experiences in recent days that return me to that theme, with a vengeance. One is the discovery that my very first published national magazine article is now displayed at Google Books. It is from the June 1970 issue of Baseball Digest, when I was 15 years old. See p. 37 of http://books.google.com/books?id=dzIDAAAAMBAJ&pg=PA3&source=gbs_toc&cad=1#v=onepage&q=&f=false.

I'm not claiming infringement here. Just creepiness, down to my very bones.

The other experience was being reminded by Eric Rumsey (who is becoming one of my favorite bloggers and twitterers) of one of the most hilarious life-imitates-art parodies ever published by The Onion. See "Google Announces Plan to Destroy All Information It Can't Index," August 31, 2005: http://www.theonion.com/content/node/40076.

Google Books' Version of 'New Facts on the Ground'

We're waiting for the Supreme Court ruling in "Freelance" (Reed Elsevier v. Muchnick) and for the revised Google Books settlement in federal district court. In the meantime, blogger Eric Rumsey has posted a must-read piece, "Google Books Integrated into Google Search Results," http://blog.lib.uiowa.edu/hardinmd/2009/10/30/google-books-integrated-into-google-search-results/. I urge everyone to reflect on its implications.

Rumsey astutely notes that the settlement controversy has distracted Google-watchers from the way Google Books actually works. "Several notable improvements were made during the summer," he writes, and "that got very little recognition. Another change that seems to have gotten little recognition is that Google web searches have begun to include links to books in GBS in the last 1-2 years."

I am quick to concede that Rumsey and I seem to be approaching this news from different angles. Rumsey, a medical librarian, may see these "improvements" as a good thing. I see them as another example of what I call the corporate infringer's m.o.: creating new facts on the ground that make a mockery of the legal system.

In Freelance, we've seen the Orwellian "standstill agreement" by which one side (the plaintiffs) stood still, while another side (the defendants) continued infringing, expanded infringement, and indeed used these practices to create new and ever-more-ingenious ways to exploit writers' previously published works. These unilateral maneuvers seem to have succeeded in some measure in endearing them to naive end users, who came to see big publishers as friends, and independent creators as enemies, of access.

Not surprisingly, Google has done -- and, as "settlement" "negotiations" proceed, continues to this day to do -- the very same thing. The illusion of access, with the predatory pricing of "zero" for redistribution of pirated works, isn't just the mother's milk of the new information industry. It's the heroin. It's part of the package by which the bad guys "ask forgiveness, not permission," because they are "too big to fail."