Proposed Google Book Search Settlement Rejected

The long-awaited decision on the Google Book Search settlement came out this week, with Judge Chin rejecting the current proposal. If you recall, this is the case involving the Author's Guild and their claims of copyright infringement resulting from Google's mass scanning of library content. The story is expected to get wide-spread coverage this week. For example, see the Wall Street Journal article from yesterday afternoon.

In his decision, Judge Chin wrote:

While the digitization of books and the creation of a universal digital library would benefit many, the [Amended Settlement Agreement (ASA)] would simply go oo far. It would permit this class action—which was brought against defendant Google Inc. to challenge its scanning of books and display of “snippets” for on-line searching—to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

The question now is, "What's next?" The judge did indicate that switching from opt-out to opt-in would resolve many of the concerns. That certainly would help for books in print, and perhaps even for many of the books out of print, but what about the many orphan works that exist? Secondarily, what does this mean for bookstores signing up with Google Editions? Or more generally, what does it mean for Google?

Resource for Google Book Search Settlement info

Professor James Grimmelmann and his students at the New York Law School have created an informative website called The Public Index to study and discuss the proposed Google Book Search settlement. The website is a great resource for anyone seeking more information. It includes a document library, forums, and reports. Recently the group released a report that summarizes the latest objections and responses to the settlement.

The fairness hearing for the settlement was held in February but Judge Denny Chin has yet to rule. According to Publishers Weekly, it is not clear if he will rule due to a recent promotion. If another judge takes over the case, it will be the third judge since 2008.

Google Grant Program to study digitized books

Judge Denny Chin has yet to rule on the Google Book Search settlement but according to The Chronicle, Google is moving ahead and has initiated a grant program that will give select humanities researchers an opportunity to participate in text-mining research of the digitized books. The researchers will work on projects such as building software to track language changes and creating search functions to discover content of interest. It is not clear if the researchers will be able to access the controversial digitized volumes that are protected by copyright. However, as noted by Matthew L Jockers, a lecturer and academic-technology specialist in Stanford’s English department, even without the titles the corpus is “far, far bigger than anything we have had access to in the past.”

Details about the grant program are being kept quiet but it is thought that Google is seeking researchers from its university partners which have allowed their collections to be scanned.

6,500 authors, publishers, and literary agents opt out of Google settlement

According to recent article from Guardian UK, 6,500 authors, publishers, and literary agents have opted out of the Google Book Search settlement. Those wishing to opt out were required to do so before the fairness hearing on February 18th. As mentioned in a previous posting, the judge did not rule on the settlement due to the amount of information. The judge is planning to write an opinion of his views which could take several months. The Guardian article includes some interesting comments from authors. Science fiction author Gwyneth Jones noted, "The danger to me, and every other writer, is not that our works will be available free online (I offer most of my recent novels free online already. These 'portable document format' novels are the text as I wrote it, and they do my sales no harm at all). The danger of the digital 'publishing’ corporations is their unprecedented access to billions of tiny payments, for product that costs them effectively nothing, at their point of entry. This seems to mean they don't have to worry about any form of resistance at all. I don't like the sound of that, not from anybody's point of view."

No ruling for Google Book Search settlement

The Google Book Search fairness hearing was held yesterday and according to The Huffington Post, the judge heard from several supporters and objectors throughout the day. During the hearing, Judge Denny Chin questioned the lawyers who reached the $125 million settlement. Chin asked lawyer for authors, Michael J. Boni, why the settlement gave Google publishing rights into the future. Chin noted, “Usually it's a release of claims based on what's happened in the past. Usually you don't have a release of claims based on future conduct. Why is this case different?" Boni agreed that the case was unusual but said that the deal is fair despite objections. During the discussion about orphan works, Chin noted, “I would surmise that Google wants the orphan books and that’s what this is about.” Judge Chin noted that “there’s too much to digest” and did not rule on the settlement. According to the Wall Street Journal, Judge Chin wants to write an opinion at a later date to outline his views so the ruling could take several months.

Google defends revised settlement

As mentioned in a previous posting, several groups including the U.S. Department of Justice recently filed objections to the revised Google Book Search settlement. The U.S. Department of Justice explained on their website that despite the substantial progress reflected in the revised settlement there are still class certification, copyright, and antitrust issues. According to a new article from eSchool News, Google has issued a filing to defend its revised settlement and is not planning to withdraw the settlement to make revisions as it did in November.

Beginning tomorrow, Google will attempt to win the judge’s approval at the fairness hearing. If approved, consumers will be able to access the millions of books that Google has scanned over the past five years. Many of the books are orphan works or those which are under copyright but out-of-print and the rights holders are unknown or can not be located. Major libraries including university libraries contain large numbers of orphan works and Google could gain exclusive rights to publish the books online and profit from them. As of our members noted several months ago, if the settlement is approved, it could be a real game changer and easily affect every community and stakeholder in the industry.

Google Book Search update

In November 2009, Google, the Authors Guild, and the Association of American Publishers submitted a revised version of the Google Book Settlement that was intended to resolve the U.S. Justice Department’s concerns that the settlement would violate copyright law and give Google an unfair advantage. Soon after, the judge presiding over the case granted preliminary approval of the amended settlement and gave groups until January 28, 2010 to file objections.

Since November, several groups have filed objections including the U.S. Department of Justice. In a statement on the U.S. Department of Justice's website, it says that despite the substantial progress reflected in the settlement there are still class certification, copyright, and antitrust issues. Postings on the Bits Blog and Wired Campus list several other groups that say that the revisions are not enough to prevent Google from having a monopoly over orphan works. Some of these groups include: Amazon; Microsoft; the Internet Archive; Open Book Alliance; Institute for Information Law and Policy at the New York Law School; and a group of 80 professors, led by Pamela Samuleson, a professor of law and information at the University of California at Berkley. In addition, an informative website called The Public Index, has a complete list of all the filings in support and opposition to the settlement.

The future for Google Book Search could be revealed within the coming weeks. The fairness hearing for the settlement is scheduled to take place on February 18, 2010.

Judge grants preliminary approval of Google Book Settlement

Earlier this month, Google, the Authors Guild, and the Association of American Publishers submitted a revised version of the Google Book Settlement. The new draft is intended to resolve the U.S. Justice Department’s concerns that the settlement would violate copyright law and give Google an unfair advantage. According to the Digits blog, Judge Denny Chin has granted preliminary approval of the amended settlement and has set the hearing for February 18, 2010. However, many groups do not believe that the revisions are enough and feel that Google could still have a monopoly on orphan works or those which are under copyright but out-of-print and the rights holders are unknown or can not be located.

According to an article from CNET news, the settlement has been revised to include only out-of-print books that were published in the U.S., U.K., Australia, or Canada due to opposition from several countries. More rules regarding the Books Rights Registry were also added. The registry will be independent of Google and authors and publishers will have seats on the registry board. The registry will also be required to search for copyright holders that have not come forward. The revision does not address the important concern that reading records will be protected from disclosure to the government and third parties.

An article from the Bookseller.com says that Amazon has already filed a memorandum asking the judge to reconsider the preliminary approval noting that the ruling was made “without the benefit of opposing viewpoints” and the settlement is “doomed from the start and fails to satisfy even the low standard for preliminary approval.” Groups will have until January 28, 2010 to file objections to the revised settlement with the court.

Google Settlement postponed

According to an article from The New York Times, the final hearing for the Google Book Settlement has been postponed indefinitely to give the parties time to re-work the agreement so that it complies with copyright and antitrust laws. A fairness hearing for the settlement was set to take place on October 7, 2009 but was officially postponed after the Authors Guild, Association of American Publishers, and other plaintiffs in the case requested more time due to the number of objections and briefs filed with the court. A posting from the Bits blog reports that more than 400 filings were received and the majority discussed issues pertaining to the agreement.

In Judge Denny Chin’s order he wrote, “The current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors. Clearly, fair concerns have been raised.”

Judge Chin also commented on the potential benefits of the settlement he noted, “On the other hand, the proposed settlement would offer many benefits to society, as recognized by supporters of the settlement as well as D.O.J. It would appear that if a fair and reasonable settlement can be struck, the public would benefit.”

Judge Chin will hold a status conference on October 7th in place of the hearing to discuss how to proceed with the case “as expeditiously as possible.”

Google’s public domain books available for printing on the Espresso Book Machine

Last Thursday, On Demand Books announced that over two million of the public domain books scanned by Google will now be available for printing on its Espresso Book Machines. The public domain books are only those which are out-of-copyright and can be viewed in their entirety on the Google Book Search website. These books differ from those which are out-of-print but in-copyright and can be partially viewed on Google’s website. It is those books which have caused much debate in the Google Book Search settlement. An article from CNET notes that it is not clear whether or not On Demand Books will have access to the additional books if the settlement is approved in October.

Several college stores already own Espresso Book Machines and will be able to benefit from this new agreement. McMaster University and the University of Alberta were two of the first stores to purchase the machines and at least a half a dozen other stores have placed orders for, or recently installed, the POD devices. Later this year NACS Media Solutions plans to announce new programs that will make a range of POD capabilities available to stores of all sizes, so that more stores can participate in the technology and provide new services that can improve textbook affordability.

Amazon, Microsoft, and Yahoo to oppose Google Book settlement

According to an article from the Wall Street Journal, Amazon, Microsoft, and Yahoo are planning to join an alliance to oppose the Google Book Settlement. The alliance is being led by the Internet Archive and includes nonprofit groups, individuals, and library associations. Other groups planning to join the alliance include the Special Libraries Association, the New York Library Association, and the American Society of Journalists and Authors. According to Peter Brantley, co-founder of Internet Archive, the intent of the alliance is to develop public statements and documents to identify antitrust implications as well as, determine if the agreement sufficiently protects the privacy of users. The alliance is pushing for revisions to the settlement and is not planning to issue a joint filing with the court. Individual members will decide whether or not to oppose the settlement in court.

The deadline to oppose or participate in the settlement is set for Friday, September 4, 2009 with the final hearing set for October 7, 2009.

Professors at the University of California raise concerns about Google Book Search

This week it was announced that professors at the University of California are calling for reconsideration of the institution’s participation with Google Book Search and the settlement. According to a posting from the Bits blog, the professors include members from the university’s Academic Council and the chair of the Academic Senate’s Committee on Libraries and Scholarly Communication. The group has issued a letter to the court noting that they are not opposed to the settlement but they have a number of concerns including: “the settlement is not equally fair to all members of the author sub-class and does not fully address the needs of academic authors,” the settlement does not expressly protect the privacy of users, and if the settlement is approved, Google could become a monopoly and be free to raise the prices. The letter also includes suggestions on how to address the concerns.

The deadline for authors to decide whether to participate in the settlement or opt or is approaching and set for September 4, 2009 with the final hearing on October 7, 2009.

Google discusses vision for digital books

A recent posting from MediaBistro features interesting commentary from Google Books engineering director, Dan Clancy, about Google’s vision for the future of digital books. Mr. Clancy noted that the vision for the future is about new digital books and is separate from Google’s settlement which is its plan for out-of-print books. As noted in a previous posting, Google’s plan has been referred to as Google Editions which will let publishers sell in-print e-books direct to consumers.

Mr. Clancy outlined three requirements for this initiative including – digital books will be stored in the cloud (the books will be stored on a Google server and not on personal computers or devices but users will be able to access their books at anytime), the ability to read Google books on any device, and the ability for Google to partner with all interested retailers so that consumers can buy Google editions of digital books at brick and mortar bookstores and also online.

Mr. Clancy commented on the importance of the ability to buy digital books in bookstores by saying, “Right now the physical bookstores are a critical part of our book ecosystem. A huge amount of books are bought because people go into a physical bookstore and say, hey I want this, I want that. It's a mistake if we think of our future digital world as digital means online and physical means offline. Because if that happens and 10 percent of the world goes digital, that's going to be really hard for all the bookstores to sustain their business model."

An article from Book Business points out that this plan will place Google in between the publishers and the consumers potentially giving them too much control over content and pricing which is also of great concern with Amazon.

University of Texas at Austin and University of Wisconsin-Madison expand Google Book Search agreements

Last week the University of Texas at Austin and the University of Wisconsin-Madison expanded their Google Book Search agreements. This news follows the University of Michigan's recent expansion to their agreement. The final hearing for the Google Book Search Settlement is scheduled for October 7, 2009, and if approved, anyone will be able to gain access to the titles that have been scanned and digitized from these libraries.

According to a posting on the University of Wisconsin-Madison’s website, Google has also been scanning the works from the Wisconsin Historical Society in conjunction with the university library. Together, the titles make up one of the largest collections of historical materials in the United States and to date over 200,000 of the works have been digitized. Ken Frazier, Director of the University of Wisconsin-Madison Libraries commented, “Our original project with Google was undertaken in the spirit of the Wisconsin Idea - UW's commitment to making useful information and knowledge available beyond the confines of the university. Now, our new agreement will promote equitable access to knowledge even further by giving every student in the U.S. access to the same books, whether they're on campus or not."

Another posting on the University of Texas at Austin website also discusses the opportunity to expand access to their works. Fred Heath, Vice Provost and Libraries Director commented, “The new agreement between the University of Texas Libraries and Google insures that our participation in the project will fulfill our initial primary goals of discovery, preservation and access. Additional provisions will enhance local access while allowing for the introduction of rich materials from our collections to a broad audience."

Meanwhile, the Justice Department’s investigation on whether or not the Google Book Search agreement violates antitrust regulations is still ongoing. In June, the Justice Department issued civil investigative demands to Google, The Association of American Publishers, the Authors Guild, and individual publishers.

Digital happenings

While the blog highlights many of the digital happenings affecting our industry, there is often more going on than we have a chance to cover. Here are some other related stories that might be of interest.

• The New Yorker recently featured Malcolm Gladwell’s review of Chris Anderson’s new book: “Free: the future of a radical price.” Gladwell captures some of the core ideas that should be of interest to booksellers and publishers.
• The Chronicle of Higher Education has an interesting article written by Tim Barton, president of Oxford University Press, Inc., that discusses Oxford University Press’ opinion of Google Book Search.
• The American Society for Training & Development website recently featured a very interesting posting about innovation.
• This week, Wattpad, an e-book sharing community that lets users create e-books for others to download, announced a new app to let users download content to Android-enabled devices, blackberry and iPhone apps already exist. About 10,000 stories are published on the site every month

Jeff Bezos reveals some Kindle enhancements and comments on Google Book Search

On Monday, at Wired Magazine’s Disruptive by Design Conference, Jeff Bezos revealed some interesting information about the Kindle, its e-book store, as well as Amazon's opinion of Google Book Search. According to a posting on the Bits Blog, Amazon is planning to expand its reach by making Kindle books available for more mobile and computing devices. Currently, the books are only available via the Kindle device or the Kindle iPhone app. Bezos also implied that support for other reading formats will be added to the Kindle but did not elaborate on what that might include. In addition, Bezos explained the rational for the price of Kindles. He said that Amazon considered offering a lower upfront cost for the device with a subscription type commitment but prefers that the two sides of the business operate independently so that neither one is subsidizing the other. Bezos commented, “My opinion, and so far the market has responded to our approach, is very simple. Instead of driving the cogitative complexity of a two-year commitment, tell people, ‘This is the actual cost of the device.’” Bezos noted that if customers prefer a lower priced device with higher operating fees he will consider the approach.

According to another posting on The Wall Street Journal’s Digits blog, Bezos said that of the 300,000 books that are available for the Kindle and in traditional format via Amazon.com, Kindle unit sales represent 35% of total Amazon book sales. Bezos commented, “Internally, we are startled and astonished by that statistic.” He went on to say, “I didn’t understand all of the failings of a physical book, because I’m inured to them. But you can’t turn the page with one hand. The book is always flopping itself shut at the wrong moment. They’re heavy. It’s had a great 500-year run. It’s an unbelievably successful technology. But it’s time to change.”

An article from CNET says that when asked about Google Book Search, Bezos commented, “We have strong opinions about that issue which I’m not going to share. But clearly, that settlement in our opinion needs to be revisited and it is being revisited.” He added, “There are many forces of work looking at that and saying it doesn’t seem right that you should do something, kind of get a prize for violating a large series of copyright.” Google responded to Bezos’ comments via a posting on their Public Policy Blog that suggests that the comments were likely motivated by its Google Edition initiative. The new initiative will let publishers sell in-print e-books direct to consumers and therefore put Amazon in direct competition with Google for control of the e-book market. Note - Some sources have referred to this initiative as “Google Edition” but it is referred to as “Google Books” in the posting.

Trouble for Google Book Search?

In April, the Google Book Search settlement was postponed until September to give authors more time to participate in the settlement or opt out. At the time, John Simpson, a consumer advocate for Consumer Watchdog, commented, “The four-month extension is a big victory for those who oppose the Google Books settlement. It's a clear recognition by the judge that there are problems with the proposed deal. The extension also gives the Justice Department more time to consider the antitrust issues that we and others have raised and discussed with them."

According to an article from The New York Times, the Justice Department is in fact investigating the antitrust issues and has now issued civil investigative demands to Google, the Association of American Publishers, the Authors Guild, and individual publishers. Michael J. Boni, a partner at Boni & Zack, who represented the Authors Guild in negotiations with Google commented, “They are asking for a lot of information. It signals that they are serious about the antitrust implications of the settlement.” The article notes that the formal requests for information do not necessarily indicate that the government will oppose the settlement but it could delay the approval because the judge is no likely to approve while an investigation is pending. While several prominent library associations have already commented on the settlement, for the retail community there is still uncertainty regarding how to respond.

SharedBook launches Google Book Settlement Discussion forum

This week, custom book publisher, SharedBook Inc., launched a new Google Book Settlement Discussion forum to give policymakers, businesspeople, scholars, journalists, and others, an opportunity to come together to review and discuss the settlement. The site includes all of the relevant documents pertaining to the case and comments by users will be linked to the documents through online footnoting. Users can also purchase a printed copy of the settlement with the discussion comments. As mentioned, the site just launched so it may take a little time for the discussion to get going but within a few weeks it will likely be a great resource.

University of Michigan expands Google Book Search agreement

Last week, the University of Michigan announced an expansion to their current Google Book Search scanning agreement. An article from Inside Higher Ed provides the following summary of the new agreement:

• Universities that have made parts of their collections available for digitization will receive deep discounts on access to the collection, or -- in Michigan's case and perhaps those of others -- will pay nothing for access to the collection, which currently has about 10 million volumes and could easily double in size. Every participating library will have full free access to digitized copies of all of the books it contributed.
• For people at other institutions, a free "preview" of a book -- with about 20 percent of content -- will be available online.
• Individuals will be able to purchase full access (but not download a copy) at prices that Google said would be inexpensive compared to regular purchase prices.
• Colleges and university libraries could buy site licenses, with pricing based on Carnegie classification. While no scale was released, Google officials said that the goal of pricing would be both to provide appropriate recognition to copyright holders but also to ensure wide access to the collections.
• Any of the universities that have provided volumes for the project will have the right to seek arbitration if they feel that the pricing does not reflect both of those principles.

While the new agreement addresses the pricing issue, some of the pricing details have not been released so it is not certain that the agreement is enough to keep Google from overcharging. Corey Williams, associate director for the American Library Association’s Washington office commented that the agreement is a “step in the right direction with regard to pricing” but notes that “we think any library should have the ability to review pricing.” It is expected that the other universities participating in the digitization effort could sign similar agreements.

Google Book Search settlement delayed

On Tuesday, the Google Book Search settlement was postponed for four months to give authors more time to decide whether to participate in the settlement or opt out. The deadline to opt out is now September 4, 2009 and the final hearing will be on October 7, 2009. According to an article on CNET, the four month extension appears to have been in direct response to a request from a group of authors and not in response to Google’s request for a 60-day extension to ensure that rightholders are given enough time to respond. Gabriel Stricker, a spokesperson for Google commented, “We're excited about the proposed settlement agreement regarding Google Book Search. As we've said previously, the settlement is highly detailed, and we want to make sure rightsholders everywhere have enough time to think about it and make sure it's right for them.” Although Google was in favor of a delay, the postponement may actually benefit the parties opposed to the settlement. John Simpson, a consumer advocate with Consumer Watchdog, commented, “The four-month extension is a big victory for those who oppose the Google Books settlement. It's a clear recognition by the judge that there are problems with the proposed deal. The extension also gives the Justice Department more time to consider the antitrust issues that we and others have raised and discussed with them." As mentioned previously, if the settlement is approved, Google could gain exclusive rights to the orphan books held in university libraries which would easily affect every community and stakeholder in our industry.

The Information Technology & Innovation Foundation (ITIF) has also posted a video and a summary of the Copyright, Content and Class Action Lawsuits: A Debate on the Google Book Search Settlement event held last week at the Library of Congress. Participants in the panel included: Dr. Alan Inouye, Director of the American Library Association’s Office for Information Poicy; Dr. Daniel Clancy, Engineering Director for Google Book Search; Allan Adler, VP of Government Affairs for the Association of American Publishers; and Peter Brantley, Director of Access for the Internet Archive.