Google Books: Fairness Hearing View (Feb 18)

by Kenneth Crews on February 22, 2010

I am pleased to share (with her permission, of course) the following view of the Google Books fairness hearing prepared by one of my superb Columbia Law School students, Meghan Schubmehl.  She was able to attend that day, and the following are her observations.  I found her view to be helpful, and I hope you will too.  I will be adding my own thoughts on this blog from time to time.  Thank you for your interest,  Kenneth Crews

 

Google Books Fairness Hearing, February 18, 2010

By Meghan Schubmehl

If it was not clear before, it was clear at yesterday’s fairness hearing that Judge Denny Chin is in an unenviable position as he wrestles with the Google Books settlement.  Underscoring the difficulties of assessing the agreement, he noted—with a laugh—that both sides say the answer is “clear.”  Clearly not.

The federal courthouse in lower Manhattan saw the kickoff of a day full of objections and support regarding the settlement at 10:10 am.  The major issues involved are numerous—copyright, antitrust, class action law, privacy concerns, and international obligations under intellectual property and trade agreements—and they interact with each other in complex ways that can quickly defy understanding.  That was no deterrent for the many spectators who packed themselves shoulder-to-shoulder into Judge Chin’s courtroom to watch the action unfold.

Judge Chin, however, was not in that courtroom.  There were so many individuals speaking (five non-parties in favor of the settlement, 22 objectors, the Department of Justice, Google, and the author and publisher sub-classes) that spectators watched the proceedings on a television screen from an overflow room set-up in his usual courtroom.  And so we sat, watching birds-eye footage, from one stationary videocamera, of a courtroom scene unfolding twelve floors above us.  Judge Chin was out of sight from the camera—at times joking, at times (understandably) impatient with the speakers, acting as an effective referee and guide through the day’s proceedings.

As for the presentations themselves (each ostensibly limited to five minutes), the objectors and supporters of the settlement covered a breathless array of issues and variations on the arguments found in over 500 filings the court received in response to the settlement.  Five-hundred filings that, in fact, cited to each other, as the judge noted in his opening remarks.  While a degree of repetition was inevitable, the five hours of argument were actually quite captivating.  The objectors argued admirably (as did supporters and the settlement parties) and the judge unquestionably felt the import of their concerns.  These condensed thoughts cannot do justice to the sophisticated arguments presented, but below are reflections on two key issues—privacy concerns and the use of an opt-out regime—that highlight some of the tensions and great uncertainties presented during the fairness hearing.

Interestingly, the issue most related to libraries during the hearing was privacy.  Google has analogized to the Books project as a “great library.”  Mortar-and-brick libraries, however, are subject to state privacy laws that forbid them from releasing patron information, such as what a patron read, how much of it she read, and whether she decided to re-read it.  Google is not subject to such laws and, it is suspected, will use much information for data-tracking and search algorithm purposes.  Daralyn Durie, representing Google, responded that Google has a privacy policy in place, enforceable by the FTC.  She also noted that the settlement reflects a balance of security and privacy, such that the scanned books will not be distributed beyond the scope of the agreement. 

The broad scope of the privacy arguments should be noted.  The Center for Democracy and Technology, represented by John B. Morris, Jr., argued in support of the settlement and the Book project’s lofty goals, with the caveat that privacy concerns be addressed.  Cindy Cohn of the Electronic Frontier Foundation, representing 28 authors and publishers, objected to the settlement, but contended that amendments could be added in order to ameliorate privacy concerns.  Marc Rotenberg of the Electronic Privacy Information Center argued that the settlement should be rejected entirely based on privacy concerns.  I paused to take note of this spectrum of views because privacy concerns are not directly addressed in the settlement document, serving as but one example of the broad-reaching effects of the settlement Judge Chin must consider.

Also weighing heavily on Judge Chin—or so it appeared from his comments and questions—is the effect of the opt-out regime the settlement seeks to establish.  Arguing on Amazon’s behalf, David Nimmer attacked the settlement directly on copyright grounds—one of the few detailed forays into copyright law for the day.  He argued that copyright law gives copyright owners the right not to license their works by simply doing nothing.  That is, copyright includes the right to exclude.  The settlement, by comparison, requires a copyright owner to affirmatively opt out or, if he never finds out about the settlement, permits Google to infringe that right when the author does nothing.

Hadrian Katz, representing the Internet Archive, also provided a cogent argument that many of the settlement’s current ills would be cured by using an opt-in regime without detracting from the benefits of the project.  If Google indeed offers fair benefits to authors and publishers, there should be little problem convincing them to license their rights to the Registry.  Furthermore, an opt-in regime would incentivize Google to provide more comprehensive notice to rightsholders in order to alert them to the benefits of such a program.

The settlement parties responded that it is cost-prohibitive to seek out all rightsholders and that the great benefit of the Books project is that the financial incentives provided through the Registry will lead authors to claim their works, such that relatively few unclaimed works will be left.  Not surprisingly, the objectors and Department of Justice were skeptical of this view.  As many speakers noted, they fear Google is using an opt-out regime to gain access to unclaimed and orphan works without properly licensing them for commercial gain.  There is a real tension in this issue; it is unknown how many books are within the scope of the settlement and it is unknown how many authors will claim their works.  At points during the presentations, there was a palpable distrust of what Google is doing—largely because the non-display uses to which works may be put are not detailed in the settlement –and yet all speakers agreed that a project such as Google Books holds great benefit for everyone.

This is but the tip of the iceberg on these two issues alone, let alone the deep well of issues not touched upon here.  The day, which ended at 4:00 pm, actually felt like it flew by.  I suppose this is a simple testament to the skill with which the speakers and parties argued, as well as their concerted efforts not to repeat arguments and to highlight the specific needs of particular stakeholders.  Much should also be said for Judge Chin’s management of his courtroom and keen ability to direct speakers through consistent, but not overbearing, questioning.  Judge Chin gave no indication of when he would hand down his decision, but he did tell at the beginning that he planned to issue an opinion that addresses the many complex issues.

For More Information:

Google Fairness Hearing Report by James Grimmelmann

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

 

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