Getting Ready for November 9

by Kenneth Crews on November 4, 2009

At the status conference before Judge Chin in early October, the parties to the Google Books litigation agreed to deliver to the court their renegotiated settlement agreement.  Some of the most critical issues were underscored by the U.S. Department of Justice.  Many observers of the developments, myself included, have raised concerns about the legal monopoly that Google will have with respect to orphan works, as well as a legion of other issues, large and small.

What to expect on November 9?    If you need a good refresher about the issues, pro and con, take a look at these newly posted essays:

Paul N. Courant, University Librarian at the U of Michigan writes in support of the settlement.

Pamela Samuelson, Professor of Law and Information at the U of California, Berkeley, outlines many of the problems with the settlement.

What will I be watching for on November 9?  These issues:

Privacy:  Because the settlement provides almost exclusively for online access of books, the Google database will be able to track individual reader habits.  This has been a leading concern expressed by libraries and consumer groups.  My expectations are low.  So far, Google and the publishers have been punting, telling us that privacy is a policy issue for someone else (e.g., Congress) to solve.

Orphan Works:  This issue demands reconsideration, but no way that the parties will agree to not scan and deliver orphan works.  One of my concerns has been the distribution of revenues from orphan works to all other claimants (such as to me, a claimant of a variety of materials).  I don’t deserve that money.  I have called the plan “grotesque.”  I expect to see that money redirected under the new agreement, but I can’t guess where.  We should also be worried if the funds are “reinvested” in the GBS system.  Unclaimed monies have a tendency to be consumed by administration or paid to lawyers to sue people.

Foreign Works:  The parties will likely give them some slack, maybe easing their way to opt out (or even be allowed to opt in).  Foreign rights holders have additional reasons to be concerned about the settlement, and I think those concerns have the attention of the DOJ.  The downside?  If many foreign books are not made a part of the settlement and are not in the database, libraries and other purchasers of the database will be much less enthusiastic.

Deadlines:  The “opt out” deadline of September 4 is past, and January 5, 2010 was deadline for rightsholders to claim the initial payment from the settlement.  The parties have agreed to extend that deadline to June 5.  In fairness, the opt out deadline should also be extended to give rightsholders a chance to decide their role under the new terms.

Hearing:  The parties and the judge seemed eager to have a “fairness” hearing for possible approval of the new settlement in late December or early January.  That date seems unrealistically soon.  The court could do that date, but it does not seem to give a fair chance for the public to read, learn, explore, and file comments about the new terms.  When lawyers schedule important events during holidays, you can usually expect that they are hoping the complainers will be out of town.  Everyone should demand more time.

Now we wait for November 9.  I will post my thoughts as soon as I can figure them out.

Thank you,

Kenneth Crews

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