Friday, October 23, 2009

Objecting to GBS/AAP/AG Settlement

ALA Washington Office has posted an analysis of who filed comments/briefs to the court relating to the Google/AAP/AG settlement. Of the "class member objectors," e.g. authors and publishers, 82 US parties filed objections. Astonishingly, there were 295 objections filed by foreign "class members," including the publisher organizations in a number of countries. The objections range from the seemingly trivial (the poor quality of the translations of the notice that were provided) to concrete descriptions of how the settlement violates the rights of rights holders under the Berne Convention. I'll sum up some of these objections:

  1. The class -- members of the class were not given sufficient notice, nor were they able to read the actual settlement documents, which were not provided in translation.
  2. Moral rights -- Berne includes moral rights, that is the right of the author to control the use of ones' work. This is interpreted quite liberally in some countries, to include things like cover images used in sales, metadata, etc. While these may seem unimportant, the Italian publishers' organization AIE was horrified to find one of its newsletters listed with an author of "Fascist Federation of Publishers". This was a previous name of the organization, but was found offensive to the organization.
  3. Registration requirements -- Berne states clearly that "... exercise of these rights shall not be subject to any formality..." It was this aspect of Berne that ended the copyright registration requirement in the US. Objectors claim that the need to register with the Books Rights Registry violates this aspect of Berne. The logic being that you are the copyright holder regardless of any action you take to assert that.
  4. Definition of "out of print" -- This is probably being revised by the main parties, but the original settlement document stated that "Google will use the publishing status, product availability and/or availability codes to determine whether or not the particular database being used considers that Book to be offered for sale new through one or more then-customary channels of trade in the United States." Various objectors were able to show that Google's determination (as available in the database managed by Google today) was wrong in a majority of cases.
  5. Definition of "in print" -- This one also might be undergoing revision. The settlement defines "in print" as "be offered for sale new." Some objectors pointed out that there are books that are free, that are online for open access, etc. The argument is that these cannot be considered out of print.
  6. Representation -- None of the foreign class members consider either the AAP nor the AG to represent them. Some ask that there at least be foreign class members on the board of the Rights Registry. Others simply consider the class membership to be invalid.
  7. The burden on publishers -- The burden of identification has been placed on publishers. For a publisher with an active list of titles, this could be a considerable amount of work. Google offered that if publishers would provide ONIX metadata, they would do an automated matching against the database. Apparently this has failed to provide relief, most likely because of differences between the publishers' metadata and that of Google.
  8. The effect of secrecy -- Because Google works heavily in "trade secret mode," it is very difficult for the rights holders to find and diagnose problems relating to their works. Yet the settlement does not hold Google accountable for errors in the data.
  9. Privacy -- the EU has rather strict privacy rules. This argument is a bit contorted because at the moment there is no plan to allow EU users to access the books covered by the settlement, since the settlement is only valid in the US. But at least one objector acknowledged that users would gain access by going through US proxy servers. It isn't clear to me if one can apply local law when masquerading as someone else through a proxy.
  10. Local digitization laws -- At least one country, Germany, has made provisions for library digitization of works (and in-library access) which requires that the library obtain permission from the rights holder. This objection is a bit indirect, but it seems to be one of indignation that Google could be digitizing works that the national library of the country where the work was published cannot.
  11. Censorship -- Many are concerned that Google may eliminate books from its service "for editorial reasons" without having to justify itself. This is an interesting and difficult argument -- it's like saying you're against the service, and you're afraid it won't have everything. It makes sense, however, because if Google becomes the predominant access to books in the US and it could censor without recourse, that a single company gets a great deal of control over both information and culture. There should be more objection to this from within the US.
  12. General moral and cultural indignation -- I read about a dozen of the foreign objections. In some cases, I may have been reading into the text an undertone of moral and cultural indignation. Not in the case of Germany and France, however, who were quite clear on their objection to the monetization of their cultural heritage. Here are some quotes:
"... the proposed settlement homogenizes (or "Googlizes") and demeans those special elements that distinguish the unique cultural tradition of France by turning books into a merely industrial by-product of a computer database."

"France's concern for its authors is only heightened by the proposed settlement's shroud of secrecy and hint of an uncontrolled, autocratic concentration of power in a single corporate entity, Google, that generates more revenue than many countries."
"The Federal Republic of Germany is historically called "Das Land der Dichter und Denker" (the land of poets and thinkers). ... Germany can rightfully claim the mantle of birthplace of modern printing and publishing. ... [the settlement] will flout German laws that have been established to protect German authors and publishers... creating a new worldwide copyright regime without any input from those who will be greatly impacted -- German authors, publishers and digital libraries and German citizens who seek to obtain access to digital publications through the Google service. "

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