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Federal Judge Rejects Google Books Deal 234

Posted by timothy
from the edge-of-the-copyright-envelope dept.
14erCleaner writes "US Circuit Judge Denny Chin has rejected a $125 million settlement between Google Books and the author's guild that would have allowed Google to publish all out-of-work fiction online. Chin has previously ruled more favorably on this case."
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Federal Judge Rejects Google Books Deal

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  • by assemblerex (1275164) on Tuesday March 22, 2011 @06:24PM (#35580692)
    to represent all authors of out of print fiction? Can I install myself
    as the representative for all out of print romance?
    What a load of cowpucks
    • by blair1q (305137) on Tuesday March 22, 2011 @06:36PM (#35580810) Journal

      They sue as a class.

      The lead plaintiffs will be the guild and a few of its members. They'll extend the class to include all of the Guild's members and anyone else who's ever learned to scrape a pencil without breaking the point. Most of the class won't know they're in it until all the litigating is over.

      The rest of the members will be mailed a notification of settlement, including instructions on how to get their $0.38 share of the award (the lawyers, of course, will get about $45M off the top).

      The notification will include instructions on several ways not to get your $0.38, one of which will be to opt-out, retaining your rights to sue Google as an individual.

      Good luck spending $10 million protecting the copyright on a book you can't get anyone to print even for a fee any more.

      Oh, and dear Google, did you mispell one or more of the words in "Don't Be Evil"?

      • by hawguy (1600213) on Tuesday March 22, 2011 @06:45PM (#35580932)

        The rest of the members will be mailed a notification of settlement, including instructions on how to get their $0.38 share of the award (the lawyers, of course, will get about $45M off the top).

        Except that there's no payment for anyone (except the laywers, of course), because the judge rejected the settlement -- Google wanted to pay $125M for the ability to make out-of-print books available online, giving authors the ability to opt out. The judge suggests that opt-in would be better, but I'd guess that there are many more out-of-print books with authors that are dead, just-don't-care or would be happy that their books will be available, than those that want their out-of-print book to stay out of print because they have some grand plan to reissue it some day.

        So the opt-in model is far less valuable to public (and to Google) because it means that far fewer out-of-print books can be made available.

        • by TheRaven64 (641858) on Tuesday March 22, 2011 @07:03PM (#35581092) Journal

          So the opt-in model is far less valuable to public (and to Google) because it means that far fewer out-of-print books can be made available.

          I was a member of this class, and I'm glad this settlement got overturned. I don't have any out-of-print books, apparently the class included everyone who had a book copyright registered in the USA - Google is indexing and posting online all books that they can, not just ones that are out of print. The reason that I'm glad that the settlement was overturned is that it gives Google far too much power. After paying the token sum, Google may put any out of print books online, but anyone else doing so gets a statutory fine for wilful copyright infringement of $750-$150,000 per book.

          Google basically gambled that they could violate copyright on all books and get away with it. Rather than lobbying to make some sane changes to copyright law, they want copyright to remain overly strict, but to just apply to everyone except them. One law for Google, one law for everyone else. Of course, it's okay because Google isn't evil...

          • Re: (Score:2, Insightful)

            by Anonymous Coward

            I have to agree though I do consider it a great loss(and a failing of our current copyright system) that vast numbers of works will effectively be lost forever if the last copies expire before the copyright does.
            in the US that means forever the way things are going.
            Can't go making copies without permission from the copyright holder after all.

            If you litterally cannot find anyone to pay or ask permission from then you can't make it your own more permanent copy.

            it would be a less significant problem if you had

            • by mug funky (910186)

              you forget the library of congress...

          • Isn't that the case for anyone who owns a copyright? They can publish books, but anyone else who tries it gets slapped down? One law for the copyright holders, one law for everyone else...

            Google was essentially trying to bulk-buy limited distribution rights. The problem with this is that the vendor (the Author's Guild) doesn't actually represent all those rights holders.

          • One law for Google, one law for everyone else. Of course, it's okay because Google isn't evil...

            I get your point, but if Google was making these available for free, the evils of copyright would have been averted.

            Unfortunately it costs more than $125M to buy a law lessening restrictions. Disney bought Fritz Hollings for much cheaper, but they were increasing restrictions.

            • by PCM2 (4486)

              I get your point, but if Google was making these available for free, the evils of copyright would have been averted.

              Kinda like how open source runs on free beer.

              • Kinda like how open source runs on free beer

                If you think you have a way to vanquish copyright, I'm 100% behind you.

                But I think that the alternative to this Google solution is the status-quo, where abandoned works are locked away forever for the benefit of Mickey Mouse.

            • I get your point, but if Google was making these available for free, the evils of copyright would have been averted.

              Not really - the settlement would allow Google to distribute them to you, but it would not allow you to redistribute them further (as you're not a party to that settlement).

              • Not really - the settlement would allow Google to distribute them to you, but it would not allow you to redistribute them further (as you're not a party to that settlement).

                But redistribution isn't necessary here, if everybody can get them from Google.

                We're not looking to the future as to how to license some new software - these are old works, forever trapped by copyright to benefit the Disney Corporation. Without the Google solution, we get nothing. I'd love to hear about any other options.

                • But redistribution isn't necessary here, if everybody can get them from Google.

                  Doesn't giving this kind of competitive advantage to a single for-profit corporation strike you as unfair?

                  I'd love to hear about any other options.

                  The only fair option would be to push for the same kind of deal to apply to anyone (i.e. so long as you pay the same as what Google does, you can redistribute books under the same rules).

                  Alternatively, establish a government-backed non-profit specifically for this purpose, and entrust the license to them. That would be a little bit like a library, though you'd still have to pay to get books (to cover th

                  • The only fair option would be to push for the same kind of deal to apply to anyone (i.e. so long as you pay the same as what Google does, you can redistribute books under the same rules).

                    Sure, that's fair. Is there something exclusionary in the Google contract? I sort of figured this is like when Apple did the deal with the record labels. iTunes was exclusive at first, but it cracked open the vault for all the subsequent competitors.

                    • Sure, that's fair. Is there something exclusionary in the Google contract?

                      Well, yes - it's not a contract, it's a settlement. They get to copy copyrighted works without being considered infringing copyright (since the scheme is opt-out rather than opt-in). You can't sign a contract with the guild to let you do something like that, because it wouldn't be binding on the entire class. You'd need to infringe first, same as Google did, and on a scale to make it into a class action where guild represents the entire class, and then hope that they agree to strike a similar deal with you.

                • by TheRaven64 (641858) on Wednesday March 23, 2011 @05:14AM (#35584010) Journal

                  But redistribution isn't necessary here, if everybody can get them from Google.

                  That seems to be the core of the disagreement here. You think it's fine for Google to be allowed to be the guardian of our written culture, without any copyright or oversight, and I don't.

          • Re: (Score:3, Interesting)

            by SuperKendall (25149)

            Google is indexing and posting online all books that they can, not just ones that are out of print. The reason that I'm glad that the settlement was overturned is that it gives Google far too much power. After paying the token sum, Google may put any out of print books online

            Man you are REALLY going to be pissed when you find out what they are doing in libraries.

            Way to think of future generations over yourself.

            • Huh? Nice selective editing there. Anyone can open a library, there's no law (statute or case law) that means that only a single company can do it.
          • by gmor (769112)

            Google basically gambled that they could violate copyright on all books and get away with it.

            Actually, Google was sued for digitally copying library books, making them searchable, and allowing users to see a few "snippets" in the search results. The copying is exactly analogous to the copy of every webpage that exists inside any search engine. A lot of people get confused because the Google Books project also encompasses an opt-in publisher program that allows people to read several pages of books. But for books from libraries that are still under copyright, all Google has done is make a digital in

        • by AJWM (19027)

          those that want their out-of-print book to stay out of print because they have some grand plan to reissue it some day.

          There's potentially a lot of money in the back list for authors -- or their estates -- who want to put their own stuff up in e-book format these days.

          In aggregate, probably a hell of a lot more than $125M worth.

      • by Kjella (173770) on Tuesday March 22, 2011 @06:50PM (#35580996) Homepage

        I do get the point of class actions, but it should be an essential requirement in such settlements that the defendant cease the activity hurting the plaintiffs. Just because Toyota settles a class action over faulty brakes don't mean they now have a perpetual legal indemnity to continue shipping faulty brakes. Yet Google wants to retain the right to continue using all these works, it's a licensing scheme not a damage settlement. Just because I happen to be part of a class doesn't mean that class should be able to license my work at will. That is a grant, not a settlement.

        • Re: (Score:2, Interesting)

          by blair1q (305137)

          But if you can't keep doing it, there's no reason to settle. Unless that's part of the settlement.

          Google infringed on a few books. The $125M was to make it okay for them to infringe on all books. If they were just going to stop infringing and compensate the people they've already infringed, their offer would be like $1.98.

          • by Kjella (173770)

            Google infringed on a few books. The $125M was to make it okay for them to infringe on all books. If they were just going to stop infringing and compensate the people they've already infringed, their offer would be like $1.98.

            Nope, this is the RIAA lawsuits in reverse... 750$-150,000$ statutory damages per work. That does require your work to be registered with the US copyright office, but I imagine that even fairly obscure authors do that as part of the publishing process.

      • by wordsnyc (956034)

        The class asserted by th Authors Guild, et al., in their original complaint was never certified by the court because Google and the Guild came up with the "settlement" before it went to trial.

    • by jvonk (315830) on Tuesday March 22, 2011 @06:51PM (#35581004)

      How does some guild get authority to represent all authors of out of print fiction?

      Well, according to TFB (blurb), that's essentially the judge's rationale for rejecting the deal.

      I am torn: on one hand, I believe that copyright law no longer "promotes the progress of Science and useful Arts", so I would like to see Google have the ability to make a sweeping digital library of abandonware books (seriously, if the authors aren't selling the book, how are they harmed?)

      However, if this deal went through, it seems likely that it would have been the birth of another MAFIAA-style intellectual property racket.

      So, perhaps we are considering the situation from an artificially constrained viewpoint. The pragmatic approach to getting the digital library would have been to take the deal with this newborn devil, but we would have to live with those consequences. The idealistic approach would be to "fix" copyright law so that such a library could be created... you know, the better to "promote the Progress of Science and useful Arts".

      Does anyone else want some of what I am apparently smoking to cause me to have such fantastic & vague ideas (haha)? Maybe I got hit on the head or something.

      • by b4upoo (166390)

        I am pretty sour on the notions of copyright and patents in general. If we had a literary and music patent that expired after five year or so and could not be extended it would seem like a reasonable concept. Music is even more of an issue as music is broadcast. Broadcasting is like throwing bird seed all over town. You simply have no control of which birds get the seed or how often they make use of it. Then it gets even worse. Suppose someone writes a catchy tune for voice and I want to play that

  • I know I should be posting something serious and insightful, but I've just been reading the "Shatner's Birthday" /. thread, and misread the judge's name for a second.

  • Once again the legacy business model behemoth that is, well, anything from the USA it seems right now, stamps all over innovation. I bet there's hundreds of books that would be useful to me that could either not be found over here, out of print, or just plain overpriced that need some better system for handling them in this age.
    • by vux984 (928602) on Tuesday March 22, 2011 @06:44PM (#35580910)

      I bet there's hundreds of books that would be useful to me that could either not be found over here, out of print, or just plain overpriced that need some better system for handling them in this age.

      I bet there are too.

      However, having one corporate behemoth gain EXCLUSIVE rights to the works by paying a guild that doesn't actually necessarily even have rights to all the works in question is NOT THE SOLUTION.

      • by hawguy (1600213)

        However, having one corporate behemoth gain EXCLUSIVE rights to the works by paying

        The answer to that is to require compulsory licensing from the guild to anyone with the resources to do what Google did.

        a guild that doesn't actually necessarily even have rights to all the works in question is NOT THE SOLUTION.

        The answer to that is to require some active action to keep a work in copyright, like renewing it every 5 years - that way everyone benefits - authors that really care can keep the rights to their work, but as for the rest, they get released to the public to enjoy. Oh and make sure that only an author or direct relative can renew the copyright, otherwise companies will just buy up copyrig

        • by vux984 (928602)

          I actually agree on both points.

          Except the part about only the author or direct relative renewing. If Steven King dies and leaves no heirs that shouldn't mean the books are all public domain within 5 years. I have no issue with a company renewing copyrights.

          But it should still expire within 30 to 50 years of being published.

          • It shouldn't be based on the author's lifespan at all. It should be based on the readers' expectation lifespan, and be set to expire well before more than half of the original readers do.

            30 to 50 years is still too long, but a fixed term is much better than one that floats on the author's obituary. For one thing it lets older authors cash out to the full extent that their younger contemporaries might be able to, since the time for any companies buying their works to recoup the investment would be the same

        • by Xtifr (1323)

          The answer to that is to require compulsory licensing from the guild to anyone with the resources to do what Google did.

          That might indeed be better than what's actually proposed. By the way, this is not a hypothetical scenario. The non-profit Internet Archive has been working on a similar project for many years (albeit much more slowly), and they were one of the parties that filed to oppose the Google Books deal, precisely because they would have been cut out and their labor (and hard-to-come-by money) would have been wasted.

          Frankly, I'd much rather see a deal that allows the Internet Archive to continue their work, becaus

        • However, having one corporate behemoth gain EXCLUSIVE rights to the works by paying

          The answer to that is to require compulsory licensing from the guild to anyone with the resources to do what Google did.

          But neither of those solutions address the underlying problem - the Guild doesn't have the authority to license those rights.

      • This wasn't an exclusive rights deal at all.
        Nothing in this deal prevents Microsoft from buying the same right from the Guild.
        Why you claim this to be the case is beyond me.

  • A Point (Score:5, Insightful)

    by DaMattster (977781) on Tuesday March 22, 2011 @06:31PM (#35580772)
    Judge Chin does make a good point. Even though the book is out of print, the author is still the copyright holder and should have say in whether or not the out of print book may go into a Google digital library. After all, maybe the publisher decided to drop the book because it wasn't selling and the author may want to look for a different publisher or attempt to self-publish. I can see the digitalization of out of print material where the author is deceased and therefore has no say in the matter.
    • > Even though the book is out of print,

      Why is the book out of print though? Not enough demand? Methinks that justifies society benefiting as a whole. The author was given his "limited time" to profit. Now it is society's turn to benefit.

      • Re:A Point (Score:5, Insightful)

        by Rockoon (1252108) on Tuesday March 22, 2011 @07:51PM (#35581470)
        So a publisher can send your book directly to the public domain by simply declining to continue printing it? Really?
    • I can see the digitalization of out of print material where the author is deceased and therefore has no say in the matter.

      The problem is that the rights don't expire with the author, but rather they survive him for some years. (Depending on when the author died/dies and when the material was created.)

  • ...is that their fonts are not clear at all, though readable. With today's technology, I expected a much better looking font regime from a powerful company like Google.

    Sadly, there is virtually no competition yet in this area.

  • by GrumpySteen (1250194) on Tuesday March 22, 2011 @07:16PM (#35581198)

    2.4 Non-Exclusivity of Authorizations.

    The authorizations granted to Google in this Amended Settlement Agreement are non-exclusive only, and nothing in this Amended Settlement Agreement shall be construed as limiting any Rightsholderâ(TM)s right to authorize, through the Registry or otherwise, any Person, including direct competitors of Google, to use his, her or its Books or Inserts in any way, including ways identical to those provided for under this Amended Settlement Agreement.

    Google was not trying to get exclusive rights to anything. Anyone and everyone else would have been free to scan in books and sell them exactly like Google wanted to do.

    Everyone posting here about how evil Google is for wanting exclusive rights to sell these books is wrong. None of them have read the proposed settlement and they have no clue what they're talking about. They're spreading FUD and you idiots are falling for it.

    • by I3OI3 (1862302) on Tuesday March 22, 2011 @07:48PM (#35581442)
      No, you're absolutely right. Absolutely anybody else who wanted to could compete by:
      * Openly commiting a massive infringement (note that non-massive infringement would not be sufficient)
      * Being sued by the Author's Guild
      * Having that suit granted a class action status
      * Having a large enough legal team you can fight the class action lawyers
      * Convincing the class action lawyers that they should settle into a business deal instead of cashing out
      * Ensuring that this deal is sweeter for the lawyers than Google's or they'll just keep monopoly rents through Google

      Yep. There's no exclusive rights here at all.

  • Google is a publishing company. It typically believes it has the right to profit from content created by other people, even without their permission. In fact, that is their entire business model -- selling ads against content created by other people. (search is how they draw in the eyeballs, or it used to be, now they also have phones, web services, etc.)

    But in this deal with the "Authors Guild" they were really overreaching. They were trying to make themselves the defacto publisher of all copyrighted wo
  • Wait... how can a judge reject a civil settlement?
    • by bws111 (1216812)

      Because it is a class action, and he feels the members of the class are getting hosed.

  • unobtainable books. (Score:5, Interesting)

    by mirix (1649853) on Tuesday March 22, 2011 @07:55PM (#35581494)

    A while back I was doing some research on vacuum tube based logic circuits (don't ask). My random googling brought up repeated mention of several books. They may even be public domain by now, I'm unsure. They dated to around WWII.

    Anyhow, regardless of copyright status, the things were absolute fucking unobtainium. It really is a shame that things like this essentially get lost to the wheel of time. Whether it be due to copyright, or just plain being out of print and public domain. It's a crime against knowledge.

    Fortunately I don't think this will be the case in the future, as most currently released books are surely digitized (legally or not) and hopefully will be around by the time they are hopelessly obsolete, out of print, lacking demand, commercially unviable, and/or enter public domain.

    • by Selanit (192811) on Tuesday March 22, 2011 @10:30PM (#35582456)

      As a librarian, this makes my head hurt.

      I guarantee you, those books are sitting on a shelf in a library someplace. Probably within a thousand miles of you. And we have this lovely thing called "interlibrary loan," an arrangement under which you can walk into your local library and borrow those books from the library that has them, either for free or for a small processing fee, depending on how badly the library's budget has fared in recent cuts. We saved those books for you. That's what we do. Please come borrow them.

      As for the future, well, digital copies are actually a LOT harder to preserve long term. I myself have files that I can no longer open, because I no longer have a copy of the word processor "Sprint" running on MS-DOS 5.0. They're less than twenty years old, and are essentially unusable.

      By contrast, I once held and read a hand-written breviary from fourteenth century Italy, a good six and half centuries old and still usable. If we could find a way to archive digital information which would guarantee its usability a mere century from now, I'd rest a lot more easily.

      • As for the future, well, digital copies are actually a LOT harder to preserve long term. I myself have files that I can no longer open, because I no longer have a copy of the word processor "Sprint" running on MS-DOS 5.0. They're less than twenty years old, and are essentially unusable.

        Well that's just short-sightedness. There are still converters for Sprint format however, and I'd be happy to convert them for you if you promise not to put them into another proprietary format.

        By contrast, I once held and read a hand-written breviary from fourteenth century Italy, a good six and half centuries old and still usable. If we could find a way to archive digital information which would guarantee its usability a mere century from now, I'd rest a lot more easily.

        Yeah, but I have more books on my cell-phone than currently exist from the fourteenth century.

  • Google is going to have to take this one on the chin.

  • I just thought of this, and hadn't seen anyone else mention it. What happens to the used book market? Instantly, a lot of people who have property of some value now will have its value erased. There's a book I want to read that's out of print but usually around $30. I'll buy it eventually. The instant it goes on the net for free, the value of a used copy goes to zero for me.

    • Instantly, a lot of people who have property of some value now will have its value erased.

      When you purchases a book, you are not entitled by law to that book having some (or any) particular resale value after a while - unless your contract with the book dealer said otherwise, in which case you may sue him.

    • Does the value of the used physical copy go to zero for you, or does the value of the book's content go to zero?

      Whether in digital form, translated to audio, or shaped with ink to form letters on a physical medium (paper), the content is the real value of a book. The physical aspect of a paper copy is separate. I love the feel of books and have trouble thinking that I would ever read anything but reference materials on a digital screen, but I can equally conceive of the physical copy being seen as useless b

    • Any time you're holding an asset, be it a security or real estate or tangible good, it's best to remember the FINRA warning: past performance is not an indication of future returns. That out of print book could just as easily lose value by the publisher printing it again (though it wouldn't go to zero), which is essentially what this is. If that never occurred to you, you have no business trading used books.

      NB- I only discuss the value of the content here, the market for first editions would be unchanged

  • by frinkster (149158) on Tuesday March 22, 2011 @09:17PM (#35582040)

    I just finished reading the entire decision. It was quite interesting but at 45 pages I doubt many people here would bother.

    The judge pointed out quite a few problems with the settlement proposal, but two of the most important are:
    1) It's pretty likely that the settlement would violate a number of US and international laws.
    2) It would contradict recent US Supreme Court decisions that say it is the job of Congress to update copyright law for changing technology.

  • What we need is better orphan works legislation.

    I'm all for copyright owners getting their due according to the law as it stands (different argument as to if that law itself needs fixing), but it's not fair for creative third parties to require navigating a mnefield to locate rightsholders who can run the gamut from "Oh I'm so happy someone is finally letting my dusty creativity see the light of day again" to "greedy I am, pay me a fortune or I sue you to hell", and some of which may pull a Rambus and hide

  • If Microsoft tried to pull this off, could you imagine the outcry?

    Google just tried to gain the rights to nearly every book ever written, for pennies on the dollar, and they almost got away with it.

    Are all geeks so blinded by reflexive anti-copyright attitudes that we can't be alarmed at the prospect of one company gaining so much power at the expensive of authors

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