DoJ objects to (revised) Googlebooks pact
Um, you didn't fix our problems
The US Department of Justice is still concerned that Google's $125m book-scanning settlement conflicts with class-action, copyright, and antitrust law, even after Google and American authors and publishers negotiated changes to the pact meant to appease its critics.
"Despite the commendable efforts of the parties to improve upon the initial proposed settlement, many of the problems previously identified with respect to the original settlement remain," the DoJ said today in a court filing.
In September, the DoJ told the court to reject the original settlement if it weren't changed to address "significant problems." A little more than a month later, Google and its fellow parties filed an amended settlement - but the DoJ still sees problems, and recommends that the parties return the negotiating table.
"At this time, in the view of the United States, the public interest would best be served by direction from the court encouraging the continuation of settlement discussions between the parties and, if the Court so chooses, guidance as to those aspects of the ASA [amended settlement agreement] that need to be addressed," its filing reads.
In October 2008, Google settled a lawsuit from the US Authors Guild and the Association of American Publishers over its Book Search project, a effort to digitize texts inside many of the world's leading research libraries and make them searchable online. So far, the web giant has scanned more than 10 million titles, many still under copyright protection.
The pact creates a "Book Rights Registry" where authors and publishers can resolve copyright claims in exchange for a cut of Google's revenues. But it also gives Mountain View the unique right to digitize and make money from "orphan works," books whose rights are controlled by authors and publishers who have yet to come forward. And although other organizations could negotiate the rights to Registry titles, the Registry alone would have the power to set prices.
In essence, Google and its fellow parties are rewriting copyright law with a civil settlement.
In amending the original settlement late last year, Google proposed that for up to ten years, an independent fiduciary would retain orphan works revenues that would have gone to the rights holder. Some of these funds would be used to locate the orphans' right holders, and anything left over would eventually go to charity. But the pact would still give Google the right to digitize orphaned works - a right no one else has.
The DoJ still believes this is a problem. "The ASA suffers from the same core problem as the original arrangement: It is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court."
A court hearing is scheduled for February 18. Asked for comment, Google provided a statement on behalf of itself and the case's plaintiffs. "The Department of Justice’s filing recognizes the progress made with the revised settlement, and it once again reinforces the value the agreement can provide in unlocking access to millions of books in the U.S," it reads.
"We look forward to Judge Chin’s review of the statement of interest from the Department and the comments from the many supporters who have filed submissions with the court in the last months. If approved by the court, the settlement will significantly expand online access to works through Google Books, while giving authors and publishers new ways to distribute their works.” ®
Update: This story has been updated to show that the independent fiduciary mentioned in the revised Google Books settlement would merely retained orphan works revenues that would have gone to rights holders.
So your problem then is that they will be putting other publishers out of business? Other publishers who are presumably also not paying any rights at all for these orphan works (which they might well happily carry on distributing for all eternity and earning income from without putting a penny away should you turn up and claim your rights). My point here is that anyone else would have the same right to digitise and publish the same orphan works under the same system. Your concern over opt-out seems hollow. If you are the rights holder and object you opt-out, if you don't then you either aren't around, haven't noticed it yet or don't care. Opting-out means you get any money made that has been held in trust and retain your rights, they remove your work from distribution just as if it had been published without permission by anyone else and no financial harm is done, you just don't get any more income from that source and nobody can read it any more until you publish it yourself..
If they were claiming the exclusive rights to publish these orphan works by default then that would be different but as I understand it they aren't and it would seem ludicrous to do so - I can't believe even the Mighty G would be so arrogant and their own lawyers would certainly advise them they have no inherent right to do so under current legislation in any country I can think of. Digitising a work does not make you the owner of that work. At the moment it doesn't give you any rights at all and that is the only fundamental thing that would change. What it comes down to is they are trying to nudge the law along; to allow for anyone to exploit an orphan work unless permission is ultimately revoked and applying compensation in any such case. It does not seem to me an unreasonable change...so long as it is independantly monitored.
Obviously there are other details to be concerned about for rights holders such as; the fact that they have already started with no legal framework in place; the possibility that you might have intended your work to be entirely free and public domain; the chance that inappropriate advertising might accompany your work and you may wish to object to that if you later discover it - these things and many others spring to mind. But at the moment I can see litle difference between what they are proposing and the work that the MPRS does within the music industry. Clearly it requires oversight and regulation but let's face it that would never have happened at all if someone hadn't got the ball rolling and ultimately somebody surely has to start digitising all this stuff or it will simply be lost forever?
That's not what they say at all
The "independent fiduciary" would only hold the money that would normally go to known rights holder in trust. Google still keeps the right to digitize them and make money from them the same as a work with known rights holder. And since there system is 'opt-out' there is no one to stop them from doing what they want or object to the rates they apply.
...with them being searchable, I just object to Google granting themselves sole "permission" to do this and thereby gain any ad revenue thus generated. Apparently the DoJ objects, too.
And what does "searchable" mean? Can I go online and just read these books in their entirety, thereby depriving authors and publishers their income?