Crowd-Finding the Orphan Books

A solution to the orphan books problem won't be delivered by a settlement of the Google Books lawsuit anytime soon, we learned on Thursday. "Orphan" works are ones subject to copyright restrictions, but for which rights holders can't be found or determined.  A proposal to open them up via settlement of a class action was rejected by Judge Denny Chin in March of this year. There was still hope, however, that a settlement between the parties would find a way to implement a "Book Rights Registry" that, while falling short of eliminating the orphan works problem, could go a long way towards making rights holders easier to find. I was present at last week's status conference where the parties met with Judge Chin to report their progress towards a new settlement addressing Judge Chins concerns, or failing that, a timetable for renewed prosecution of the lawsuit.  Although the lawyers for the publishers seemed to be optimistic about a settlement, Michael Boni, the lead attorney for the "authors" talked as though the their part of the lawsuit would go to trial.

No orphans here, just books being deeply
discounted at a Borders going-out-of-business sale.
Note the blurb on the book at the bottom.

While there are important copyright issues at stake in the lawsuit, I've been most interested in the proposed book rights registry. A book rights registry would compile and maintain a database of rights holders, making it easy (and cheap!) to contact, query and pay rights holders for uses that are would not be allowed without their permission or provided for by fair use. In the current environment, it can cost hundreds of dollars to clear the usage rights for an in-copyright book, even without paying anything to rights holders. With a publisher-only settlement and continued prosecution now likely, my guess is that the book rights registry is either dead or years from being a reality.

It's ironic that the past week demonstrated how badly a book rights registry is needed. HathiTrust, the research library consortium formed to manage the scans of library books generated by the Google Books program, announced plans to expand access to a small number of works that they deemed to be orphans. The Authors' Guild then sued HathiTrust to block the expanded access.

The legal experts thought the suit "borders on the frivolous", due to serious problems with the "standing to sue" issue. Only copyright owners have standing to sue to enforce copyrights in the US, and none of the rights holders were parties to the Authors' Guild suit.

A funny thing happened on the way to the courtroom, though. Under intense scrutiny, one of the purported orphans turned out to have easy-to-find parents. The Authors Guild gleefully reported that the day before filing the suit, they were able to locate a rights holder "with a few minutes of googling". This report seemed to indicate incompetence all around, HathiTrust for neglecting the few minutes of googling in their orphan-identification workflow, and the Authors' Guild legal team, for failing to address their "standing to sue" problem with "a few minutes of googling".

A subsequent blog post from the Authors Guild was a revelation. It turns out that the Authors' Guild didn't really need a registry to find rights holders. By asking for help from their large number of blog readers, they were able to identify rights holders for many more of the purported orphan works. It seems that when large numbers of people are interested to find a rights holder, it's not so much of a problem. Of course a rights registry would help, but even the best registry can't fix everything.

I started following the Google Books case over two years ago because I thought it was important to increase access to all sorts of in-copyright works. What I learned in the process made me realize that a cookie-cutter, one-size-fits-all solution would never work, let alone pass judicial scrutiny. An equitable arrangement for academic authors would treat authors who write for a living unfairly; and vice versa. Authors in other countries would be ill-served by a process devised with American authors in mind. I realized that access to the works most important to book lovers would only happen with lots of reader support. And that realization has led to the work at Gluejar on Unglue.it, currently in the implementation stage.

Unglue.it will address "orphan works" the same way that the Authors' Guild has done in its recent blog posts. In addition to working with rights holders that want to offer creative commons licensing of ebooks to the public (ungluing them, in our parlance), we'll give users the opportunity to "wish" for the ungluing of any book that's been published. If a lot of users wish for a book, we'll check into who owns the rights, and give them a chance to make an offering. If we can't find the rights holder, we'll ask the people doing the wishing for help. If 10,000 people ( or even a dozen, for that matter) care about J.R. Salamanca's The Lost Country, they'll do a lot more than a few minutes of googling. They'll be knocking on his door and sending him postcards from Fiji.

When a lot of people care about a book, they'll have the combined economic power to do a lot more than opening a book to snippeting and search. We'll ask the rights holders for their price to give their book as an ebook to the world under a non-commercial creative commons license (CC BY-NC-ND). That will make it possible for everyone, everywhere, now and long into the future, to use the book the way the creator always intended- to read, to learn and to enjoy.

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What's next for "Google's" Book Rights Registry?

Judge Denny Chin's order came down today; he decided NOT to approve the "Amended Settlement Agreement" (ASA) that would have ended the lawsuit between Google, the Authors Guild, and the AAP.  (The decision is only 48 pages, shorter than Chin's senior thesis.) What happens next?

There is speculation that the rejection will be appealed; apparently, Chin must give his permission for an appeal to proceed. (update: or maybe not). Another possibility is that the parties will go back and try to renegotiate a new settlement along the lines suggested by Judge Chin.

In the end, I conclude that the ASA is not adequate, fair, and reasonable. As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an "opt-out" settlement to an "opt-in" settlement. (See, e.q., DOJ SO1 23, ECF No. 922; Internet Archive Mem. 10, ECF No. 811). I urge the parties to consider revising the ASA accordingly.

I'm guessing, based on Judge Chin's fairly broad and terse rejection of the settlement's key terms, that a settlement will have to start at square one; even given the AAP statement:

While the March 22 decision of U.S. District Court Judge Denny Chin on the Google Book Settlement Agreement that was filed on November 13, 2009 is not the final approval we were hoping for, it provides clear guidance to all parties as to what modifications are necessary for its approval. The publisher plaintiffs are prepared to enter into a narrower Settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well.

One provision of the settlement that has had broad support, even from opponents of the agreement, is the Book Rights Registry. This is essentially a huge database of rights information that has been accumulated by the plaintiff's attorneys. While it's often referred to as "Google's Book Rights Registry", and it was set up with assistance from Google, it doesn't belong to Google at all.

Michael Healy, the "Executive Director Designate" of the Book Rights Registry, as been working on the registry for almost two years, writing specifications, answering inquiries from confused rights-holders, and waiting for a decision from the court before he can proceed to make it a functioning entity. What will become of this almost-there resource, now that the settlement has been rejected?

Here's one possibility: the plaintiffs could establish a book rights registry with or without Google.

Clearly, the plaintiffs and their attorneys have run up a huge legal bill for this lawsuit. They've been expecting an infusion of $34.5 million to set up the registry and another $30 million for attorney's fees. It's not clear how much has been spent on the registry so far, but it has registered claims for about 1.1 million books. This is potentially a very valuable resource, which, if put into play could greatly increase the possibilities for transactions of book rights.

One possibility is that as part of a side deal, the plaintiffs together with Google arrange to put the registry into operation, presumably with some cash from Google. I do not know if such an arrangement would be legal.  Another possibility is that the database is offered to investors who would set up a rights clearance business. The cash from the sale could help the plaintiffs continue the suit.

The opposite possibility is depressing, but not unlikely. The entanglement of the rights information with Google's proprietary information could be so deep that a functional Book Rights Registry would have to be started from scratch, and the ebook industry is locked into a continuing effort at cleaning up the rights mess.

Notes:

1. Follow all the Settlement news at The Public Index.
2. Although Gluejar's effort to unglue ebooks will be hampered by the absence of a Book Rights Registry, there will be an even greater need for efforts such as ours that offer a path to increased access to books.
3. James Grimmelmann's summary of the decision is required reading.

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Judge Denny Chin Says He's Working On It

It's been just over a year since the Fairness Hearing on the Google Books Settlement Agreement. A lot has happened since then. Google's place in the pantheon of companies that will revolutionize and/or destroy publishing has been taken by Apple. The judge presiding over the trial, Denny Chin, was elevated to the Circuit Court of Appeals, but because of the shortage of judges on the district court (Judge Chin's District is down 9 judges) caused by the political stalemate in the US Senate, Judge Chin has been forced to keep most of his cases, including the Google case.

Yesterday, Judge Chin was honored by Princeton University, his alma mater, with the Woodrow Wilson Award. This award is given every year to the alumnus or alumna of the undergraduate college  who best exemplifies Wilson's memorable phrase "Princeton in the Nation's Service". In the morning, I went to hear him speak to his fellow alumni about his career as a judge.

He talked about the confirmation process, saying "it went on far too long, and frankly it's a process that needs to be fixed." He was nominated by President Obama on October 6th, 2009. Things initially moved rather quickly. His Judiciary Committee hearing was in November, and the Committee sent the nomination to the full Senate in December. But due to a Senator's anonymous "hold" his nomination didn't get a floor vote until April of 2010. After that six and a half month wait, the vote was 98-0. Of 875 federal judgeships, approximately 12% are vacant.

Chin's talk was entertaining and full of good humor. He concentrated on his "fun" cases, including cases involving New York's "Naked Cowboy" who sued Mars Candy for trademark dilution and invasion of privacy, a toy case pitting the makers of Commando-bot against the makers of Command-a-bot, and of course the Anna Kournikova versus Penthouse case, in which he was forced to spend hours upon hours studying relevant photos. The case in which he ruled that Listerine was not as effective against gingivitis as flossing made him a hero with his dentist, and earned him the tabloid nickname of the "Listerine Judge".  Chin didn't like this except it was better the "the Pervert's Pal" moniker he had earned by ruling Megan's Law unconstitutional in part. 

His most serious remarks came in reference to the Bernie Madoff case, in which the swindler was sentenced by Chin to 150 years of prison. Symbolism played a large role in Chin's thinking, which brought him back to his law school training about the role of sentencing. "Helping the victims heal" was an important consideration in his decision, one that he never encountered in law school. After the ruling, the same journalist who had labeled him the "Pervert's Pal" started calling him the "Rockstar in Robes".

The most moving part of Chin's talk came as he talked about his heritage. He did his Senior Thesis at Princeton on the "Old Ones" of Chinatown, the elderly Chinese. A photo of his grandfather was at the front of his thesis. His grandfather lived in a building of "railroad" apartments, each of which was occupied by an old man who had been separated from his family by the exclusion laws that had severely curtailed immigration from China to the United States. His grandfather had been able to go back to China only twice, once in the '20's when he got married, and then in the '30's, when Chin's father was born. Chin's Grandfather worked as a waiter in a Chinatown restaurant for many years, and like all the other men who lived in the railroad apartments, he would go to the post office every month and buy a money order to send home to his family in China. Chin's grandfather took the oath of citizenship in 1947, in the same court where his grandson would preside as a judge. Because his grandfather had become a citizen, and because immigration laws had been relaxed, Chin and his parents were allowed to come to the US in 1956 (Chin was only 2 years old).

Chin's appointment to the Court of Appeals was important to many people, because he became the only active Asian-American federal appellate judge in the entire country. His appointment was not only important to lawyers, judges, and politicians, but also to ordinary people like those living and working everyday in Chinatown. The Federal Court in New York is located adjacent to Chinatown so when Judge Chin goes out to lunch, random strangers will recognize him and tell him how proud they are of his achievement.

Chin took a number of questions after the talk. I asked him whether, given the year long wait in the Google case, his decision in the case was going to be longer than his Senior Thesis. As this was an active case he immediately said he wasn't going to comment, "but obviously I'm working on it".

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Notes from the Google Books Fairness Hearing

The Fairness Hearing was even more interesting than I expected; every time a speaker started droning on about something we'd all heard ten times before, Judge Chin would interrupt with a snippy or pointed comment. Judge Chin definitely runs a no-nonsense courtroom.

ResourceShelf has a nice round up of the news reporting from the fairness hearing; the best summaries are from Norman Oder at Library Journal: Part One and Part Two.

Here are some of my observations.

How Many Books?

In Dan Clancy's declaration (PDF, 149 KB) in support of the settlement, there are some interesting numbers (which actually come from Google's Jon Orwant).

• Google pays approximately $2.5 million per year to license metadata from 21 commercial databases of information about books.
• Google has gathered 3.27 billion records about Books, and analyzed them to identify more than 174 million unique works.

These numbers seemed to cause a great deal of confusion at the hearing. Several speakers opposed to the settlement combined this number with the information from the Declaration of Tiffaney Allen, Settlement Administrator for Rust Consulting, (PDF, 2.1 MB) that

As of February 8, 2010, Rust Consulting has received 1,846 completed hard copy claim froms, and 42,604 claim forms were completed using the settlement website. The total number of Books claimed by those 44,450 claimants is 1,125,339. [...]

Of the 1,107,620 Books claimed online, 619,531 are classified as out-of-print (not Commercially Available) and 488,089 are classified as in-print (Commercially Available).

Some objectors subtracted 1 million claimed books from 174 million unique works to get the eye-opening number of 173 million unclaimed works supposedly being exploited by Google. This is silly math, and the use of silly math is a good indicator of speakers not doing their homework.

It's known that one of the bibliographic databases licensed by Google is OCLC's Worldcat; it's probably not a coincidence that Worldcat currently contains 174,618,797 bibliographic records. There's a big difference between a bibliographic record and a book subject to the settlement. Later in the day, Daralyn Durie, an attorney representing Google, tried to clarify what the numbers meant. (updated February 22 with text from the transcript)

• 174 million is NOT the number of books in the settlement. 
• Google estimates that there are 42 million different books in US libraries. 
• 20% of these are in the public domain.
• About half of those left are written in foreign languages.
• Of the 42 million, less than 10 million of these works are affected by the settlement in any way. 
• Of these, about 5 million are out-of-print books implicated by the settlement. 

These numbers are in line with reality. Michael Cairns, a veteran of the book data supply chain business, has published his own estimates of the number of orphan works which more or less square with these numbers.

So what are the other 160 million works? They're duplicates (different editions of the same work), works that aren't books, and works published in countries excluded from the agreement and not registered with the US copyright office.

Update, February 20: Jon Orwant was kind enough to send me some clarifications.

The only correction I'd make is that it actually *is* a coincidence that OCLC cites 174M records and we cite 174M books. 

One thing to add to your "silly math" bit is that the 174M number also includes public domain books (hence not part of the settlement), and (this is the part that everyone messes up, and was ambiguous in Dan's declaration) 174M is a count of *manifestations*, not *works*.  Hamlet is one work but hundreds of manifestations.  The actual number of works is closer to 120M, but I haven't checked our most recent analysis.

Phrase of the Day: "Identical Factual Predicate"

It became clear at the hearing that Judge Chin's decision would turn on a determination of whether the settlement and the complaint it is meant to resolve have "identical factual predicates." I'll do my best to explain why.

A significant hurdle that the parties (i.e., Google, the Authors, and the Publishers) have to overcome is that the settlement is truly innovative and forward looking, and seeks to bind absent class members to business models that would not otherwise be allowed under copyright law. In their brief justifying the use of a class action, the parties cite a 1986 Supreme Court decision nicknamed "Firefighters", Local Number 93, Int’l Assoc. of Firefighters v. City of Cleveland. In this case, in which the petitioner tried to overturn a consent decree designed to redress past racial discrimination using ongoing obligations, the Court clarified that a judicial decree may go beyond the bounds of an original complaint.

In their filings, objectors countered with the “identical factual predicate” doctrine. This doctrine arises from a case known as "Super Spuds" in which it was held that a class action settlement could not go beyond the complaint of the original lawsuit. Judge Chin seemed interested in the apparent conflict and even asked Amazon's lawyer, famed copyright attorney David Nimmer, for his views on how to reconcile the precedents.

Nonetheless, attorneys from both sides wanted to argue whether the settlement satisfied the "identical factual predicate" test. Michael Boni, attorney for the Authors Guild, appear to be digging himself deep into a hole when Judge Chin asked him "Isn't it true that this case started out about snippets?" Boni argued that the case was really about the fears that publishers had about the scanning that Google was doing, and who knew what else? I thought to myself that publishers seem to fear much about the future of their industry, and following Boni's line of reasoning, the settlement could have included air rights because authors and publishers feared that the sky was falling.

Daralyn Durie's subsequent argument went a long way to recovering the ground lost by Boni. Of all the hot-shot lawyers making arguments at the hearing, Durie was by far the most impressive. She persuasively argued that since the original complaint included the Google's distribution of scan files to the libraries that contributed books for scanning, the settlement's provisions for selling access to scan files indeed constituted an identical factual predicate.

Judge Chin's eventual decision will turn on his evaluation of the "factual predicates".

What, Exactly, is Copyright's "Head"?

By the end of the hearing, I was sick and tired of hearing the phrase "turning copyright on its head". Even Bruce Keller, attorney for the Publishers' Association, was eager to use the phrase in its negative form. Have you ever tried repeating a word over and over again, so that its sound becomes grotesquely detached from its meaning? That's my feeling about the copyright-head phrase. It's meant to express that copyright usually means that copying requires the rightsholders permission, and the settlement would allow Google to make copies unless the rightsholder refuses permission.

On repetition, I began to ask myself: What part of copyright is the head? Are there brains in copyright? Is copyright blind? Does copyright have legs? Is there an invisible hand of copyright? When you eviscerate copyright, do copyright intestines spill out onto the floor?


Judge Chin Wants to Fix It

I got the impression that Judge Chin would like to approve a settlement. At least twice he asked objectors how they would "fix" the settlement to remove their objections. He asked EFF's Cindy Cohn how to fix the privacy problems she called attention to, and he sounded unhappy when EPIC's Marc Rotenberg told him that privacy problems with the settlement couldn't be cured. He asked Irene Pakuscher (representing the Federal Republic of Germany) if the settlement could be fixed to satisfy Germany's concerns about treaty compliance and effective representation. He also wanted to explore with more than one questioner Hadrian Katz' suggestion that all problems would go away if the settlement shifted from being opt-out to being opt-in.

State Laws Aren't Relevant

In an article last year, I suggested that Judge Chin might be tempted to used state unclaimed property laws as an alternate way to unravel the Orphan Works mess. Looks like I was wrong- he expressed open skepticism at the argument of Norman Marden, representing the Commonwealth of Pennsylvania, that the settlement should be rejected because of incompatibility with state laws.

Blind People had the Best View

The National Federation of the Blind made sure to have a very visible presence at the hearing to emphasize the benefits of the settlement for the reading disabled. It worked- photographs of blind people made the New York Times.

Spectators for the hearing filled two courtrooms. For the morning, I was in the overflow room, which featured a video screen small for the room and a distorted sound system. The view of the courtroom was fixed, and omitted any view of Judge Chin. Ironically, the seats closest to the video screen were filled with people who couldn't see it. Let's hope that's not emblematic of the case.
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Settlement Lawyers Say Real Authors Don't Advocate Fair Use

Today, February 18, 2010, in the US District Court, Southern District of New York, Judge Denny Chin will hear arguments for and against approval of an agreement to settle the lawsuit against Google by a class of book rightsholders formed by the American Association of Publishers and the Author's Guild. The unlikely alliance of publishers, authors, and Google will try to push through a settlement that would provide increased access to millions of books that Google has scanned and digitized in cooperation with libraries.

You can read about the pros and cons, the benefits and controversy of the settlement on a variety of blogs, websites and news outlets, but if you want to read one paragraph (with footnote) from the thousands of pages filed with the court that embodies all the issues, contradictions and complexities of the Google Books Settlement, here it is:

Some object to the entire ASA because it does not ensure that scientific or academic works are freely accessible under “Open Access” principles.    They have claimed that if those works remain unclaimed, then they should be freely made available for use. These arguments run counter to the economic interests of members of the Class.¹⁴⁶ That the reading public may wish to have free access to scientific and other academic works covered by the ASA, or that some academic authors may not want to exploit their works through the Revenue Models, should not supersede the economic interests of members of the Class.

¹⁴⁶ That the interests motivating these objections runs contrary to the interests of the Class is best illustrated by their preference that Google should prevail on the merits of this litigation. See, e.g., D.I. 336 at 2-­3 (“we believe . . . that scanning books to index them and make snippets available is likely and should be considered fair use”).

This comes from the Supplemental Memorandum Responding to Specific Objections filed by lawyers for the plaintiffs in the case. This 187 page document, available from the Public Index (PDF 856 KB) presents legal arguments countering objections to the agreement filed with the court.  Just in case you've not had a chance to follow all the issues surrounding the case, I'll try to explain some of this crankiness.

In this excerpt, the "some" who object in "D.I. 336" (PDF, 287 KB) to the entire ASA (Amended Settlement Agreement) is Pamela Samuelson, Professor of Law at the University of California. Samuelson writes on behalf of a long list of academic authors, who believe that many absent rightsholders would want their books to be made as freely available as possible, and object to Google's exclusive monetization of those works.

I can speak to this belief from personal experience. My wife's father was a history professor, and wrote a small number of scholarly monographs published by university presses. These monographs, representing a significant part of his life's work, are unavailable to many scholars in his field. If he were still alive, we are sure that he would have wanted his books to be digitized and made freely available. I've advised the family that the Google settlement would allow these works to become much more available, something that would be difficult to acheive without the settlement because we have no documentation of the relevant publication contracts. Nonetheless, my father-in-law's interests would have closely aligned with those of the academics represented by Samuelson, in favor of free access, and siding with Google on the fair use arguments.

A large fraction of book authors write them for reasons other than to profit from book sales, and only a very small number of authors are able to make a living publishing books. In addition to academic authors, who publish to advance their careers, there are authors who publish to advance a political or social agenda, or as a means of personal expression. It seems bizarre to me that the legal representatives of the entire class of authors should just dismiss these motivations as running counter to the "economic interests of members of the Class".

Since the lawsuit is configured as a Class Action, the central issue that Judge Chin must consider is whether all authors and publishers are properly represented by attorneys for the class, and whether the settlement deals fairly with them. The provisions of the settlement are unusually broad, so Judge Chin will need to give detailed scrutiny to the provisions of the settlement which impact some class members differently from others.

It seems to me that footnote 146 argues too much. In attacking Samuelson and the academics she represents for siding with Google on the fair use issue, the footnote undermines the plaintiff's core argument that Boni & Zack LLC and Debevoise & Plimpton LLP, the authors of the Memorandum, are fairly representing their interests in the lawsuit.

At the fairness hearing, I won't expect to hear any new arguments or experience any legal drama (although I expect vitriolic verbal grenades from Lynne Chu). I'll mostly be looking for signs of interest, impatience, or annoyance from Judge Chin.

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Judge Chin Confronts the Scanning Problem

Although our judicial system may often seem to be prehistoric in its use of technology, there is at least one District Judge who is eager to confront the problem of turning print into digital.

Over seventy spectators, including lawyers, professors, students, publishing executives, authors, journalists, and at least one technologist coming to grips with the fact that mobile phones and laptops are not even allowed in the building, packed a lower Manhattan courtroom today to witness a "status conference" on the settlement of the lawsuit between Google, the Author's Guild, and the American Association of Publishers. The lawsuit began when Google began scanning and indexing out-of-print books without getting permissions from rightsholders.

Originally, today's hearing had been scheduled to be the fairness hearing for the settlement, which is partly explains why so many people attended such a mundane proceeding. A few even came all the way from Japan to attend. After a pointed "Statement of Interest" by the US Department of Justice, the parties to the settlement had asked for a postponement of the fairness hearing to make changes to the agreement, but Judge Denny Chin (who was just yesterday officially nominated for a seat on the court of appeals) was eager to keep the case on track and decided to schedule this "status conference".

Here are my notes; I posted them quickly (before the Phils game) and updated them later (after they crushed the Rockies, 5-1):

The judge's practical manner contrasted with the odd formality of the whole affair. He went straight to business, asked to "see where we are" and verified that the settlement agreement which had been submitted was in fact not on the table any more. He then asked for a status report on the deliberations. Michael Boni, lead attorney for the author's subclass, gave a prepared statement on behalf of all the parties. The parties have been working "assiduously", "around the clock", with the Justice department and representatives of all the parties. They intend to come up with amendments to the existing Settlement Agreement, and expect to have these ready by early November.

Although there was substantial work to do, they had the "full attention" of the Justice Department and hope to be able to satisfy its concerns. They intend to seek approval for a supplemental notice program substantially shorter than the original notice program, given that the amendments would be providing additional benefits to the settling classes. There will have to be time for class members to opt in, opt out or object, but they hoped objections could be limited to the amendments. A motion for final approval would occur in late December or early January. They acknowledge this to be an ambitious schedule. Boni noted that there is a deadline of January 5 in the current agreement for authors and publishers to claim books to be eligible for lump-sum compensation; the parties have agreed that this should be extended to June 5, 2010.

William Cavanaugh from the Justice Department then spoke briefly. He repeated that they had been in discussion with the parties, but would need to see the amendments before giving their support. He also requested that the government be given a week to 10 days after the deadline for objections to the amendments to prepare their position.

Judge Chin then said "I like this schedule. I think I agree with the concept that limited or supplemental notice is all that will be required", given that he'd received a "large body of thoughts for and against". Anything else would result in a delay of many months, which would not be acceptable to the court.

At this point, the dreary scheduling and status reporting having concluded, Judge Chin pointed out that he had not been on the case at its beginning, and hoped that the whole process could be made smoother than it had been. He complained about all the hard copies being sent around, over-burdening his staff who had access to just one small scanner. "Really. In this case of all cases, couldn't the submissions be electronic?" he suggested, to general amusement and relief. Maybe there could be an email address set up for submitting objections.

Michael Boni noted that there are requirements to "serve" the parties, and that his firm could be served via e-mail. Judge Chin interjected that no one had envisioned having over 400 objections, and expressed a desire to see only electronic documents.

Judge Chin wanted to cover all eventualities, and asked whether the parties had contemplated a possible breakdown in the negotiations, and asked whether discovery had occurred prior to the settlement talks. Boni reported that millions of pages of documents had been produced, but that no depositions had been done. Daralyn Durie, representing Google, reiterated that it expects that the parties will be able to present a settlement agreement.

Judge Chin then set November 9th as the date for submission of the amended settlement.

A final matter that I don't know the background of was that the American Society of Media Photographers had submitted a motion for consideration. Judge Chin would allow the parties a week to respond before he rules on the motion.

Update: The ASMP had filed a motion to intervene in the case. They represent a class that is in an odd position- they were originally part of the plaintiff class, but abruptly found themselves excluded from the settlement. So they want to have their bases covered so they can be sure to have standing to object to the settlement. Judge Chin ruled against all the motions to intervene, citing timeliness, but the ASMP asked for reconsideration, and filed an appeal. You can find all the motions at the Public Index.

More coverage:

• James Grimmelmann very knowledgeable legal perspective
• Kenneth Crews gives a great flavor for the setting
• Motoko Rich, writing for the New York Times
• more Motoko Rich
• Motoko Rich, the story that went into the print version
  
• Calvin Reid, in Publisher's Weekly
• Grant McCool, writing for Reuters

Secondary reports:

• Tom Krazit in CNet
• Clint Boulton in eWeek
• Press Roundup in ResourceShelf
  

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In Which Judge Denny Chin Becomes an Orphan Works Hero

Image via Wikipedia

In all the commentary I've read about the Google Book Search Settlement, I don't think I've seen a single article that tries to examine the issues from the point of view of the Judge who has to either approve or reject the agreement. Since the news that Judge Denny Chin is up for promotion to the Court of Appeals broke last week (and who know, in a few years, maybe to the Supreme Court) I've tried to imagine what Judge Chin's perspective might be on the Google case, especially in the context of a possible confirmation hearing. However, since I'm not a lawyer, my imaginings have focused on political angles rather than the law. Certainly, if he could come up with a way to solve the orphan works problem in the Google Books case without messing with the copyright law morass, he would emerge a hero.

To review briefly, orphan works are those that are still under copyright, but whose rightsholders cannot be found. As a result, their works cannot, under the law, be copied for most purposes, because no rightsholder can be found to authorize the use. As part of its Book Search Service, Google digitized millions of books in libraries, and were subsequently sued for copyright infringement by the the Authors Guild and the American Association of Publishers. In the proposed agreement to settle the lawsuit, Google agrees to pay rightsholders a sum of money for the release of copyright infringement claims, and also authorizes Google to make use of the digitzed books in new services and share revenue with rightsholders. Since the rightsholders to orphan works can't be found, the money they would be owed will be held for a period of time in case the rightsholders appear, after which it would be distributed to charities or to other rightsholders, depending on the source.

The treatment of orphan works in the settlement agreement has led to considerable controversy. As I discussed in a previous post, critics have pointed out that the settlement agreement would give Google an exclusive right to use orphan works in ways that would normally require the approval of a rightsholder. This sort of arrangement could result in antitrust issues, international treaty issues, and also seems to change copyright law in ways the have led the Register of Copyrights to express concern that it is impinging on an issue that should properly be the domain of Congress.

This last concern should have been be the most worrisome to Judge Chin. The Congress has to approve appointments to the federal bench, and the recent preferences of both parties have been for judges who "interpret the law" rather than "legislate from the bench". A ruling on copyright from Judge Chin that was interpreted as creating new law could doom Judge Chin's chances of being confirmed. Rulings grounded in Antitrust Law or in International Treaties could be politically controversial no matter which way they went- Americans don't like to be told what they can or can't do based on international treaties or doctrines that baffle them. Rulings based in copyright law are no safer. Try to tell a typical American that Google can't let them read a book because some 120-year-old rightsholder inconsiderately died 50 years ago without giving Google permission, and they'll look at you as if you were a lunatic. For these reasons I imagine that Judge Chin might look for a clear and uncontroversial way to avoid ruling on issues that doesn't he doesn't have to rule on.

To make his situation worse, the Department of Justice submitted its "statement of interest" last night. (For a play-by-play, read Danny Sullivan's summary, then read the expert color commentary by James Grimmelmann) The DOJ's brief displays all of the annoying competence and adroit politics that we've come to expect from the Obama administration. Grimmelmann calls it "a really, really good brief," and while I agree with that assessment, I can't imagine that it's much help to Judge Chin, apart from a few very helpful footnotes and citations (according to Grimmelmann). It is a sweeping brief which examines all the core issues in the agreement, not just those, such as antitrust, where the department's position as enforcer of the law gives it a clear role in the case. On every issue it addresses, it makes excellent sense, but when you step back and look at the filing as a whole, it doesn't do what it says it does. It first praises the benefits that would accrue from the Settlement, then recommends its rejection. It next purports to lay out a course of modifications which would allow the agreement to proceed. But when you look closer at the recommendations, it's hard to chart out a realistic chain of events where they would lead to a judge's approval any time in the near future. It's as if the DOJ had intervened in the Barry Bonds case and said "it's important to our beloved national pasttime and to baseball fans around the world that Barry be allowed to continue his assault on the record books, and we don't want this steroids matter to take away his momentum, but we feel that to comply with the law, the Court should consider stripping away any of Barry's muscles that might might have been chemically enhanced."

As an example, the DOJ has suggested that several classes of rightsholders have not been adequately represented in the settlement, and points to orphan rightsholders and foreign rightsholders as examples. Now imagine inserting two more legal teams into the negotiations. That authors and publishers were able to join in a single agreement strikes me as being a minor miracle; it goes against my scientific training to expect additional miracles. At the very least, we can expect the additional legal fees to eat up more of any settlement.

The DOJ wants Judge Chin to do a lot of searching. It says the "Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law". It also thinks the "Court should engage in a careful and searching examination of the Proposed Settlement and any revised version that may be submitted." And of course, "it believes the Court should undertake a searching inquiry to ensure both that a sufficient number of class members will be reached and that the notice provided gives a complete picture of the broad scope of the Proposed Settlement." If I were Judge Chin, I would be a bit put off by the suggestion that I need some other branch of government to tell me that I need to do a good job of analyzing the case; since I'm not Judge Chin, I just wonder how he would do all this searching without access to Google.

The objections to the agreement filed by several State Attorneys General take a rather different approach. (Here's the pdf of the Objection from Connecticut) Instead of filing sweeping briefs, they address specific concerns germane to the states. They lay out a suprisingly simple argument:

1. Orphan rights are abandoned property.
   
2. State laws, not Federal laws, govern abandoned property, often giving the state custody/ownership.
   
3. States have sovereign immunity and cannot be subject to a federal court's order.

Thus orphan rights cannot be governed by the settlement agreement approved by a federal court.

What I think Judge Chin might be able to do is rule that the states are the only ones with the right to manage the rights to orphan works. (I am not a lawyer, so take this with a grain of salt.) After all, the 10th Amendment of the US Constitution states

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The right to grant Copyrights is one of the powers given to the federal government, but inheritance of those rights is governed by state laws. While this sort of ruling would probably be a rejection of the settlement agreement, it would instruct Google and the States that they could go ahead and negotiate agreements for the use of orphan works. The States could set up an "Orphan Works Registry" and empower it to make deals with companies other than Google.

This sort of ruling would only lead to a solution to the orphan works problem if the states more eager to address the problem than Congress has been. Realistically, in 2009, Congress is fully occupied with 2 wars, a global financial crisis and figuring out how to solve health care. The states, on the other hand, are mostly trying to figure out how to close huge budget gaps; I imagine that most State Attorneys General (and state legislatures, where applicable) would love to be able to deliver both the money and the benefits that would accrue from a non-exclusive deal with Google. Another advantage of a state-run rights registry is that it might avoid some of the liability for errors that a privately run registry would have. Or this might be just an ill-informed fantasy of mine.

If Judge Chin follows DOJ's course, the big question is whether Google would be willing to continue pursuit of an agreement. Will Google think it could live with the costs and risks of the opt-in mechanisms supported by DOJ? Maybe I'll try to address that question in a future post.

Related articles

• Court urged to reject Google book deal (cnn.com)
• Feds Balk At Google Book Deal (huffingtonpost.com)
• Government Urges Changes to Google Books Deal (nytimes.com)
• DOJ: Google's book settlement needs rewrite (news.cnet.com)
• States wade into Google book deal row (theregister.co.uk)

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