Hold your horses!
On 22 September the plaintiffs (the Authors Guild and publishers)
in the Google Books Settlement called for an adjournment of the hearing due on 7 October,
and Judge Denny Chin granted it. There will now be a short hearing on the status of
the case, only, with no submissions for or against the proposed Settlement.
The deadline for claiming cash if your book was scanned has been changed to
5 June 2010
Google books update
MORE details of Google's plans for the future of publishing have
emerged with the announcement of a scheme to sell printed copies of the books
it has scanned.
According to the
Financial Times report, Google's arrangement with
On Demand Books, makers of the Espresso Book Machine, "will offer two million
out-of-copyright books... The editions are likely to cost about $8, with Google
keeping $1, On Demand Books keeping $1 and the retailer keeping $3. The
remaining $3 should cover the cost of materials and labour."
So, when it's expanded to in-copyright books, what deal will be offered and
who will negotiate it?
Meanwhile, details of the US Justice Department's approach to the
proposed Google Books settlement, which would make
both out-of-copyright and in-copyright books available online, are emerging.
reports that the DoJ says the deal "could not be passed in its current form"
but urges US publishers, the Authors Guild and Google to renegotiate.
The DoJ submission (full text here) goes
to a court hearing on the fairness proposed deal, in New York on 7 October.
The DoJ submission
to the court gives some broad hints about the US government attitude. Note that it
declares itself to be a "preliminary explanation" and that the DoJ
"antitrust" investigation into whether the Settlement would create
a monopoly is not complete.
The United States strongly supports a vibrant marketplace for the electronic distribution of
copyrighted works, including in-print, out-of-print, and so-called "orphan" works. The Proposed
Settlement has the potential to breathe life into millions of works that are now effectively off
limits to the public. By allowing users to search the text of millions of books at no cost, the
Proposed Settlement would open the door to new research opportunities. Users with print
disabilities would also benefit...
The US government has, then, read Google's press releases.
Foreign rightsholders (that's us) and parents of orphans
The Proposed Settlement raises concerns about the adequacy of representation afforded to
absent class members, especially owners of "orphan" out-of-print works and foreign
rightsholders... As the filings of France and Germany make clear, some of the United
States’ trading partners have serious concerns about application of the Proposed Settlement to
Wait. Hold your horses. At least try harder to ensure that every author from Alabania to
Zimbabwe knows what's being done in their name. Probably, rewrite the settlement to
give authors (and publishers) outside the US more control over use of our works.
changing the forward-looking provisions of the current Proposed
Settlement applicable to out-of-print rightsholders from an opt-out to an opt-in
would address the bulk of the Rule 23 issues raised by the United States.
We're going to be hearing a lot about "Rule 23": it defines
what makes a "class action" settlement legitimate in US law. To
meet its terms, the DoJ suggests changing the Settlement so that Google will
not distribute your out-of-print book unless you and your publisher say so.
unclaimed profits could be devoted entirely to the search for rightsholders
of orphan works, and the Registry could be authorized to petition the court for an alternative
distribution based on a showing that search efforts had been fully exhausted. Another possibility
would be to appoint persons to the Registry to serve as guardian representatives of orphan works
The DoJ is generally opposed to the idea that income from the works of authors
who cannot be found be distributed to authors who can - which is probably a feature of
UK proposals. But DoJ would consider an independent board..
the parties contend that the Proposed Settlement’s pricing terms
should be viewed not as a form of horizontal collective action by publishers and authors
actionable under Section 1 [of the anti-monopoly Sherman Act], but simply as a unilateral offer by Google to each individual
rightsholder to contract on specified terms. The Department is not persuaded by this description.
Nor are we, if you put it like that...
Nor is it reasonable to think that a competitor could enter the market by copying books en masse
without permission in the hope of prompting a class action suit that could then be settled on terms
comparable to the Proposed Settlement. Even if there were reason to think history could repeat
itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright
It's unclear how the DoJ envisages the Settlement being revised so it does not
set up a monopoly, except that it suggests:
some mechanism by which Google's competitors could
gain comparable access to orphan works (whatever such access turns out to be assuming the
parties negotiate modifications to the settlement)
It looks as though the hearing that opens on 7 October could be quite short:
the public interest would
best be served by direction from the Court encouraging the continuation of those discussions
between the parties and, if the Court so chooses, by some direction as to those aspects of the
Proposed Settlement that need to be improved.
How long this will go on - who knows?