Objectors Outnumber Supporters in First Half of Google Settlement Fairness Hearing

Federal judge indicates he won't rule today, as speakers argue for and against the revised settlement agreement

Norman Oder -- Library Journal, 02/18/2010

(Here's an update article on the afternoon's speakers, including criticisms of the settlement from the Department of Justice, and spririted defenses to the many objections from Google, the Association of American Publishers, and the Authors Guild.)

Eighteen parties spoke out against the revised Google Settlement before the lunch break today in a fairness hearing before U.S. District Court in Manhattan. Five spoke in favor. The speakers were limited to five minutes each, and generally either boiled down points made in previous submissions or responded to recently filed documents.

Libraries were mentioned frequently, but not necessarily directly represented (only one librarian spoke). Two speakers thought privacy concerns could be fixed, but one was adamant they could not.

Among the wide variety of viewpoints offered, University of California, Berkeley, law professor Pamela Samuelson reiterated her argument that academic and scholarly authors have goals that are very different than those of commercial authors, while Hadrian Katz, representing the Internet Archive, suggested that making the settlement opt-in might offer authors the most benefit.

First, those in support
Both the courtroom and the overflow courtroom were packed with representatives of the parties, organizations testiftying, and the public.

Federal judge Denny Chin opened the hearing by saying that he was working his way through the voluminous materials submitted, and concluded, “to end the suspense, I am not going to rule today.” There was simply too much material to digest before the fairness hearing, he suggested, adding, “I have an open mind.”

He then called on the five representatives speaking in support of the settlement.

Lateef Mtima, of Howard University School of Law, offered a quote—“universal access to books will help level the playing field”—and indicated that the quote came not from this case, but from Earl Warren’s opinion in Brown v. Board of Education desegregation case. “Further delay is unfair to the digitally disenfranchised.” He added that copyright should be an engine, not a brake on social development.

Perspectives from Sony, and the National Federation of the Blind
Next up, Janet Cullum, representing Sony, said that the settlement “will make available to consumers a vast quantity of books.” During her remarks, Chin began the first of several interruptions he would make in the morning’s proceedings. He noted that other Google competitors opposed the settlement, and asked why Sony felt differently. Cullum said the settlement brings many benefits to the ebook marketplace.

Chin, paraphrasing the settlement’s opponents, said that they believe Google would get a significant competitive advantage. Cullum said the agreement is non-exclusive. Chin asked about the impact on orphan works, and Cohen responded that Sony believes the settlement will shrink the unclaimed pool. Chin, again summarizing the arguments of objectors, said the other competitors would still have to invite a lawsuit to gain access to the remaining unclaimed works. Cullum simply said it would become less of an issue because the pool would be smaller.

Marc Maurer, president of the National Federation of the Blind, spoke next. (There were a number of visually impaired people in the courtroom and in the overflow room.) In his remarks, Maurer pointed to the vast gulf between the number of books available in audio and Braille form, compared to what would be made available should the settlement be approved.

Library in support, and privacy concerns
Paul Courant, university librarian at the University of Michigan, said that he had discussed his testimony with other librarians at Big Ten institutions, and that they were substantially in agreement with him. He contrasted the many previous digitization efforts made by libraries, in which tens of thousands of books were digitized per year, with Google, which is digitizing the same amount every week. “Broad social progress depends on being able to find, use, and re-use the scholarly record.” He said Google scans “provide part of the solution.”

He argued that the alternative is the status quo, in which the physical and institutional proximity is the only way to gain access. That provides a competitive advantage to the University of Michigan, he said, “but we are happy to forego that advantage.” According to Courant, the settlement greatly increases the ability of his university to share its resources, and gain from others resources. “It’s a great bargain in the best sense of the word.” (He did not mention the issue of institutional subscriptions, which has raised concerns in the library community.)

Though listed as a supporter, John Morris, of the Center for Democracy and Technology (CDT), devoted most of his comments to privacy concerns. He warned that the settlement “could transform the library … into a sweeping new source of data collection and tracking.” He quoted the ALA Code of Ethics regarding privacy, and pointed out that when patrons go to a public library, they can look at a book on a controversial subject without anyone knowing that they had did so. “We would ask the court to impose collateral terms on the settlement,” that would require Google to honor certain privacy provisions. CDT’s brief, he said, sets out 11 proposals urging safeguards for Google Books.

Objectors weigh in
Sarah Canzoneri, a children’s book author, expressed dismay that illustrators were cut out of the class included in the amended settlement agreement. She said children’s authors who remain in the class would be injured by the fact that illustrators were dropped. By way of example, she showed an edition of the Three Little Pigs, and pointed to a page written entirely in illustrative letters, saying that it would be cut out of a work that would emerge from the settlement.

Scott Gant, a class action attorney, criticized the process by which potential members of the class were given notice, and asked Chin to consider adversarial discovery–a process to discern how well the notice process worked–or to appoint a Special Master to investigate.

Snippets, market monopoly at issue
Thomas Rubin, representing Microsoft, called the settlement “radical,” saying that it would not just give Google market power over books but would entrench Google’s already dominant search engine. He cited three fundamental points. First, he said, only Congress can revise copyright. Second, he criticized the expansion of the case to include the broad-ranging digital library and bookstore envisioned by the parties. He said, “this case has always been about Google displaying snippets, not more.” He said that full display of books could never have been the subject of a lawsuit, because it could never have been considered fair use.

The third issue, he said, was antitrust. Chin asked how Microsoft would respond to Sony’s support for the settlement, and Rubin said competition is not facilitated when the vast majority of books are in Google’s hands. He added, “I defer to the Department of Justice and other antitrust experts regarding the market for books.” (The Department of Justice is expected to speak after the lunch break.)

Rubin also took aim at Google’s claim that the objections of its potential digital books competitors were little more than sour grapes. He suggested that Google failed to explain how others could compete with only scanned books that were either out of copyright or whose rights holders had given permission. “Google took a shortcut,” he said, comparing Google to a trucking company that instructs drivers to go 90 miles per hour while its competitors must respect the speed limit.

Publishers claims, and open access
David Nimmer, representing Amazon.com, said that the term used by the parties, in which Google would be permitted to “engage in particular circumscribed activities” regarding the works, “is a code word for full commercial exploitation.” Like Rubin, he pointed out that the factual predicate of the complaint concerns the display of snippets.

Ron Lazebnik spoke on behalf of the Science Fiction and Fantasy Writers of America and the American Society of Journalists and Authors. He said that the 1.1 million books claimed so far have been claimed by 44,000 people, a sign that most of the books have been claimed by publishers, not by authors. He said this suggested publishers were claiming electronic rights that were not explicitly part of the contracts they had signed before 1987.

Pamela Samuelson, law professor at the University of California, Berkeley, said that her academic colleagues would prefer to make their books available via open access, and also supported open access to orphan works. She said “the Authors Guild has not fairly represented academic authors.” Academic authors would not have brought a lawsuit based on snippets, she added. Then, in reference to the unlikely possibility that the case would continue to trial, she said, “If this case go forward, I’ll be writing briefs in support of Google, not the Authors Guild.”

“We think orphan works is a public policy issue to be decided by Congress,” she said. She mentioned that she had asked for “meaningful constraints” on pricing subscriptions. And, while not responding directly to Courant, she offered a contrasting perspective: “for plaintiffs, books are commodities. For academics, books are a slow form of social dialog.”

Finally, as a legal scholar, she said she worries very much about the precedent a settlement would set. “Not all of the world’s information is contained in books,” she concluded. “I’m wondering for some time: who’s next?”

Privacy revisited, and foreign rights
Cindy Cohn, of the Electronic Privacy Information Center, represented 28 authors and publishers concerned with privacy issues. “The court is asked to approve a library/bookstore combination that has unlimited ability to track readers.” She said that the plaintiff’s supplemental brief says they agree with Cohn’s position, but offers no specifics on what the parties would do. Chin asked for clarification, pointing to the example of when he orders a book via Amazon, saying that he gets a message that says, “if you like this book, try this one.”

“Should I get concerned?” he asked.

Cohn said the ability “to track what you read is granular and continual.” Chin asked if it was fixable; Cohn responded that Google should be required to have a court order to turn over personal information to law enforcement officials. “This is a fight libraries and bookstores have fought,” she said. Later, she suggested Google should mitigate privacy concerns by deleting user data after 30 days.

Though the amended settlement eliminated works published by foreign publishers outside of the UK, Canada, and Australia, representatives of publishing organizations as well as national governments continue to express opposition because works by foreign authors have been registered by the U.S. Copyright Office. A representative of the Federal Republic of Germany argued that the settlement should be limited to U.S. authors and publishers. She also quoted Registrar of Copyrights Marybeth Peters, who has said that compulsory licenses have traditionally been the domain of Congress.

Cynthia Arato, representing author’s organizations in several countries, warned that the Berne Convention—an international treaty governing copyright—would be violated. She also warned the settlement posed the risk that members of the World Trade Organization would initiate proceedings against the United States, and that the United States could face trade sanctions. She said that, if approved, this would be “the most controversial class-action settlement ever approved in the country.”

Public and competitor interests
Daniel Fetterman, representing Consumer Watchdog, first pointed out that his organization is independent and has no agenda beyond the public interest. “Only Congress can change copyright,” he then added. A fundamental issue like copyright, he said, deserves to be “resolved by a public debate.”

Marc Rotenberg, of the Electronic Privacy Information Center, offered a more critical take on privacy than previous speakers. “I disagree that the problem can be cured.”

The settlement parties have untethered the privacy obligations that public libraries are subject to, he said. “There is simply no precedent for tracking people in this fashion,” he argued, citing processes like user authentication and watermarking.

Chin asked why it couldn’t be fixed. “It must be in the design of the technology,” Rotenberg said.

Gary Reback, representing the Open Book Alliance (OBA), opened by mentioning only one of the Alliance’s members, the New York Public Library. He said Sony is not a competitor with Google, because it makes ereading devices; the competitors are those who supply the books. He pointed to “secret side deals” permitted by the agreement, about which no details are known. Regarding what he called “an antitrust conspiracy,” he told the court, “we got there through concealment and misdirection.”

Shifting to opt-in?
Hadrian Katz, who represented the Internet Archive, suggested that the court could impose one condition and realize all of the benefits of the settlement: limit the settlement only to those who opt in (later, he acknowledged, “it’s possible the defendant won’t like it”). He predicted that “if the court would impose opt-in,” the result would be “dramatically better notice for authors,” and more successful efforts to find authors.

In a final comment, he noted that no one had said anything about the new Google Buzz—the latest social media tool to rankle privacy advocates—“which raises questions as to how sensitive to privacy Google might be.”

Additional objectors: agents
Three additional objectors spoke after the lunch break. A representative from the state of Pennsylvania questioned the settlement's treatment of unclaimed property.

Two literay agents also criticized the settlement. "I know a bad deal, because I'm a professional deal-maker," said agent Lynn Chu.She said publishes were turning over "massive costs and liabilities" to authors.

Stuart Bernstein, another agent, expressed concerns on behalf of authors who have their works excerpted in books. "Thse inserts are their livelihood," he said, warning that "online publication will resude their value to zero."

"Each of these inserts requires a carefully negotiated license," he said. "What the settlement calls inserts are known as permissions in the publishing business."

He suggested it was ironic that Google, an expert in search, claimed it was too difficult to find rightsholders. Citing the ambiguity of the term "nondisplay uses," he said he was unable to explain the settlement adequatly to his clients.

Observing the hearing: not easy
Though the hearing concerns broad public access to information, the process was not exactly easy. It was not broadcast publicly, and there were only about 100 seats in the overflow room. The television screen set up to transmit proceedings from the courtroom is small: an impressive size for a home theater but barely adequate for the scene. 

Those watching the case were not permitted to use laptops or tape recorders. The overheard camera never moved, nor did it focus on any close-ups. Essentially, it provided a fixed picture with no detail, and Judge Chin was never visible. After lunch, enough spaces in the courtroom had opened up for those previously in the overflow room.