Thursday, April 30, 2009

Updates on Google/AAP Settlement

There have been some developments (and some non-developments) in the saga of the settlement between Google and the Author's Guild/Association of American Publishers.

First, the Internet Archive requested to intervene in the suit, saying that it, too, was digitizing books and therefore should be given the same status as Google. Judge Denny Chin, the judge deciding whether the settlement will be granted, denied the Archive's request with no additional information as to his reasoning.

Next, a group of authors and author representatives asked for an extension on the comment/intervention period, saying that they needed more time to study the agreement and how it affects their rights. Judge Chin granted a four-month extension, which now delays the opt-out period until September of 2009. This, of course, means four more months in which Google and the AAP are in limbo waiting to hear if the settlement will pass the court's test. Meanwhile, Google is going forward as if the settlement will be granted, re-negotiating contracts with the participating libraries and digitizing the files at the Copyright Office. (This latter I know from comments by Robert Kasunic of the Copyright Office at a meeting in Berkeley on the settlement.)

There is no question that it is very difficult to understand the implications of this suit. I myself thought about various books and articles that I have written that have been published and could not determine if I would be a member of the class of rights holders that the AAP and the Author's Guild claim to represent. Items of mine originally published on the Net have been reproduced in books and journals, and some items have been translated and republished. While a living popular author may have kept some control over his or her work, there are many millions more of us who have had some truck with the published word but in less clear circumstances. Anyone without an intellectual property lawyer on retainer will be hard-pressed to make a determination of their status.

The third development, and the most important, is that thanks to the efforts of some hard-working people (including the Internet Archive and Consumer Watchdog), the Justice Department has decided to take a look at antitrust implications of the settlement agreement. It's been widely noted that the agreement gives Google a monopoly over the vast number of books that are orphaned. It has also been noted that the settlement contains a "most favored nation" clause -- that is, that it contains wording that would require that Google always be afforded the most favorable terms that anyone else receives. This is another way of preventing competition, thus, the anti-trust question.

Numerous amicus briefs, originally intended to meet the May 5 deadline before the extension, are appearing. A good place to follow this is on James Grimmelmann's blog, Laboratorium.


David Fulmer said...

What did Robert Kasunic say about Google digitizing the files at the Copyright Office?

Karen Coyle said...

Simply that Google is digitizing their files representing copyright registrations. This is something the copyright office has wanted to do, but never had the funding to do. Right now, if you want to research a copyright, you have to do so at the Copyright office in Washington DC. If Google manages to digitize them, then research could be done over the Net. Obviously, Google is going to need copies of all of these files in order to fulfill the 'due diligence' requirements of the settlement.

At the ALA panel on the settlement, I met Jon Orwant of Google who is working on that project. As I recall, and I hope my memory is true, those documents will be made publicly available by Google. In many ways, the settlement could bring copyright registration and research out of the 19th century and into the 21st. At the same time, it does not make me proud that this comes about as part of a commercial settlement, and that our own copyright office was never given the support to do this itself.