But Google is likely to carry on its battle with the authors, photographers, and other individual copyright holders. Some authors consider the fight a matter of principle. And even if Google convinced the individual named authors to settle their lawsuit, that wouldn’t prevent other authors from filing lawsuits in the future. So Google may have little choice but to seek a ruling from the courts that its scanning project is legal under copyright’s fair use doctrine.

One of the important questions is whether the authors’ lawyers can get class-action certification so they can claim to represent the interests of all authors. New York Law School copyright scholar James Grimmelmann notes this is an important question, because if they can’t get class-action status some of the plaintiffs’ lawyers will probably decide it’s not worth their while to continue representing so few clients. This is why Google is asking for the Author’s Guild to be dismissed from the suit—it will make it easier to argue against class-action certification.

If the case proceeds at its current pace, Ars Technica suggests, we can expect a decision on the question of fair use in late 2012 or 2013.

The guild argues the class should be approved because individual claimants “could not as a practical matter effectively assert alone against Google” such claims of infringement, and that “those claims are presented far more fairly and efficiently than they would be in individual actions, which would require the same issues to be litigated multiple times.”

The Authors Guild’s filing (PDF) doesn’t say anything about the fact that it really represents a considerable minority of the authors whose works would have been appropriated by Google. Google is expected to bring this up in its response and argue for multiple classes, each with its own counsel—which would mean the Authors Guild would lose a lot of control over the suit.

Although its response to this motion isn’t due until January, Google is expected to have a few things to say about it in its motion for dismissal which is due December 23rd.

(Found via GalleyCat.)

[Judge Chin] set a deadline of Dec. 23 for Google to file the dismissal motions. The plaintiffs will have until Jan. 23 to respond to the motions, and Google will have to reply to the dismissal oppositions by Feb. 3, Chin wrote in the order.

The article notes that even though most people refer to the Google Books case as a single lawsuit, there are actually three separate lawsuits from three different plaintiffs—the Authors Guild, the Association of American Publishers, and the American Society of Media Publishers. It is not clear which parts of which lawsuits Google will ask to dismiss, though TechWorld speculates Google might ask to dismiss the authors’ and photographers’ suits but not the publishers’—Google has been having better luck in settlement talks with them than with the other two groups.

It also speculates that the reason the Authors Guild filed a separate lawsuit against the HathiTrust library scanning project in September is that it saw chances of a successful settlement diminishing.

In any event, it looks as though after all these years we may finally start to see the legal issues behind the Google Books project get their day in court. I expect much of the publishing industry will be watching with great interest.

(Found via Slashdot.)

The Authors Guild, its counterparts from various Commonwealth countries, and a group of authors have filed suit to block the use of unauthorized scans of copyrighted works from the universities libraries as part of a project to build a group archive. A separate suit targets an orphaned works project which aims to sell e-versions of still-in-copyright works whose rights-holders cannot be found.

The authors’ coalition would like to see everything grind to a halt—Google and the libraries kept from any further scanning, the HathiTrust’s orphaned works project shuttered, and the digital copies on its servers impounded. The digital works wouldn’t be deleted, but it wants to see "any computer system storing the digital copies powered down and disconnected from any network, pending an appropriate act of Congress." (Note that they want them shut down and unplugged, just to be sure.)

Of course, judging from the progress in the Google lawsuit, this case might go nowhere just as fast.

IDEAS: So why not leave it to Google?

DARNTON: It became clear, as Google’s project evolved, that it would be a commercial enterprise, and in fact an enterprise attached to a gigantic monopoly. A monopoly, perhaps, with the best intentions, but that would not necessarily serve the public good, because of course Google’s primary responsibility would be to its shareholders

.[Clip]

IDEAS: So what would a digital public library be like? What would it do?

DARNTON: It doesn’t look like everybody’s image of a library with a kind of Greek temple with lots of books behind the facade. It will be in all likelihood what we call a distributed system, a network that covers all of the holdings of the greatest research libraries in the country . . . .Users won’t even have to worry about where the actual digital text is.

IDEAS: Will you have librarians?

DARNTON: We need librarians who can handle this tremendous jumble of information that is in cyberspace. People think that when you use Google you’re finding exactly what you need, but really you need expert help.

Read the Complete Interview

It’s worth mentioning that the interview doesn’t mention that Google also wanted to digitize a massive amount of historic newspapers. As you know, the plan got underway and material was being digitized and then-without warning-Google cut the entire program (5/20/11).

See Also: “Trinity U. Professor on: “How Google Disrespected Mexican History (7/12/2011)”

Via INFOdocket

Judge Chin had rejected the much-vaunted $125 million previous settlement back in March, feeling that it gave too much power to Google. He expressed the opinion that an opt-in system, in which authors and publishers explicitly had to allow their books to be made available, would be preferable over the opt-out system Google had previously proposed.

After the hearing, a Google spokesman said that the company was looking into “a number of options” to comply with the judge’s suggestions, and an Authors Guild lawyer said they were working toward an opt-in settlement.

If both parties have not come up with a settlement by the September deadline, the judge will set a “relatively tight schedule” to move the case forward to trial. Lest we forget, in six years of legal wrangling, the case has never managed to move past preliminary hearings and settlement talks. It’s hard to blame Judge Chin for starting to get a little impatient.

Still, it’s a little sad to see the opt-out option, which would have made orphan works available by default, go out the window. One of the parts of the original settlement that most appealed to me is that it would have meant vanished rights-holders would no longer default to being dogs in the manger.

"The parties are still considering what options are available," and everything "is on the table," Bruce Keller, a partner at Debevoise & Plimpton, who represents publishers in the settlement, said at a hearing before Circuit Judge Denny Chin in Manhattan federal court.

As we reported back in March, Judge Chin rejected the most recent settlement proposal, feeling it went too far in the concessions that it granted to Google. Apparently the 2 1/2 months that have gone by since then have not been sufficient for all sides to come up with a new proposal yet, so the judge has granted them seven more weeks. The next meeting will be on July 19.

So here we are, six years and counting since the original lawsuit. Google has had plenty of time to scan books and build its library, and publishers have had plenty of time to get annoyed about it. Some have said that Congress would be a more sensible place to impress the orphan work issue, but there have been no serious efforts in that direction to come out of Congress yet. It is anybody’s guess just how much time will go by before this issue is actually resolved.

As a private sector company, the core aim of Google is to make money. The Google Videos situation shows that in order to lower expenditure and adjust its priorities, Google was willing to delete content entrusted to it by users. Libraries have trusted Google with millions of documents: many of the books scanned by Google are not digitised or OCR-processed anywhere else and, with budgets for university libraries shrinking year after year, may not be digitised again any time in the near future. Google acted admirably by listening to users and working to save the videos but entrusting such vast cultural archives to a body that has no explicit responsibilities to protection, archiving and public cultural welfare is inherently dangerous: as the situation made clear, private sector bodies have the ability to destroy archives at a whim.

He goes on to talk about how cultural institutions and the public sector should be enabling access to digital information, bridging the digital divide, and so on, and that we should have a national digital library. While I can’t argue with that, I think it’s a little bit odd the way that he’s singling Google out.

Aside from the fact that plenty of people already didn’t trust Google with books without needing this provocation (which is why Google got sued by the Authors Guild), this really holds true for any commercial institution that has its hands on lots of user-generated content. If social-networking and blogging sites (for instance, the embattled also-ran MySpace which News Corp has just decided to try to sell to some other poor sucker) shut down, a lot of people would lose their stuff too.

And given how many recent cloud-based institutions have been failing all at once lately (speaking of losing user content, Time reports “Some Of the Data Lost in Amazon’s Cloud Outage is Gone Forever”) or getting badly hacked, it seems more and more like nothing digital is necessarily safe, Google or not.

The first question has to do with the “death of print”. O’Reilly points out that print probably won’t die, but electronic media will transform what a “book” is. He uses an example of electronic maps, such as Google Maps—no longer static things that just sit on the page, they now show you not only where to go but also how to get there, and in some cases what you can do once you are there.

So the question we need to be asking ourselves about e-books is, are there similar transformations that we can expect in what we think of as the book and it becoming electronic. That’s where the really interesting game is going to be played—in making it new. We’re already seeing this in [Rupert Murdoch’s] The Daily. It’s just too close to the current conception of a newspaper. Meanwhile, FlipBoard and news.me did something much more interesting by turning your Twitter feeds into a kind of realtime newspaper. That’s a completely different approach and angle of competition that newspapers didn’t really think about. I look at news.me instead of the New York Times in the morning. The user interface is perfect for using on a tablet, great for scanning interesting news when you want to have your cup of coffee and just see what’s happening in the world. And it’s curated out of my social network. So you know that kind of transformation is going to happen to e-books as well.

He mentions that the technical/self-help book market has changed considerably over the last few years, with reference titles waning as it became possible to find out freely online how to do a lot of the stuff that those books would have formerly covered. As for the books that do still sell, O’Reilly finds that people reading the books as PDFs on the PC are willing to pay higher prices than those who want to read them on their phones. He is still working on finding exactly the right price points.

On the second page of the interview, O’Reilly reiterates his stance on piracy. He finds it is not much of a problem, because most of the pirates wouldn’t have bought it anyway—but the wider-circulated the pirated material is, the more likely it is someone who will buy it will see it.

Let’s say my goal is to sell 10,000 copies of something. And let’s say that if by putting DRM in it I sell 10,000 copies and I make my money, and if by having no DRM 100,000 copies go into circulation and I still sell 10,000 copies. Which of those is the better outcome? I think having 100,000 in circulation and selling 10,000 is way better than having just the 10,000 that are paid for and nobody else benefits.

People who don’t pay you generally wouldn’t have paid you anyway. We’re delighted when people who can’t afford our books don’t pay us for them, if they go out and do something useful with that information.

He also points out (correctly) that DRM interferes with the user experience, and you don’t sell more copies by making it harder for people to use your product.

He also suggests that, by making it possible to read a Kindle e-book on almost every non-e-reader device you own in addition to the Kindle, Amazon is “effectively” dropping DRM—a barrier that isn’t a barrier isn’t a barrier. While I wouldn’t entirely agree with that, and I’m sure a number of TeleRead readers wouldn’t either, I can see his point.

When the interviewer presses him on the issue, asking what if Amazon really ditched DRM, making piracy easier, O’Reilly points out that there are a lot of people who can’t or won’t take free stuff but won’t think of paying a couple of bucks for a legitimate copy of it. He adds that there are things that can be done outside of DRM to reduce piracy—locking down accounts that see suspicious downloading activity, for instance—and that DRM has never itself been proven to work.

But to me the analogy is: yes, there are people who break into your house, and if you live in a really high-crime neighborhood, maybe you have bars on your windows. But if you live in an ordinary neighborhood you don’t put bars on your windows just because somebody could easily break the glass and get into your house, because guess what? Most of the time people don’t. And when they do, we send police after them to check it out. The whole model that says we must somehow lock things up so that no harm is possible permeates a lot of our psyche.

On the third page, he talks about the Google Books lawsuit, and suggests that in the future the lawsuit will be looked upon as a textbook case of stupidity—when Google offered an avenue for publishers to compete against Amazon, the publishers sued them instead of taking advantage of it.

Finally, he suggests reasons why people might still want to submit works to traditional publishers even in a self-publishing age.

There are several things that they’ll offer, and they’re at different levels of value. Publishers overestimate the value of some and underestimate the value of others. First off, they offer a marketing advantage. They don’t offer that today in e-books, but somebody will have to figure that out. Building a brand, having lesser-known authors draft better-known authors, building out a fanbase. It’s different for genre fiction versus professional books or even literary fiction. With genre fiction, the brand of the publisher really matters, and in literary fiction it doesn’t, at least not very much. It’s like being plugged into the network of people who share. One of O’Reilly’s advantages is that we have a network of thousands of user groups to whom we give free books, to whom we advertise our products, and they spread the word. If you don’t have that database it’s hard to get the attention of the market.

Not everybody will agree with O’Reilly’s points, but certainly nobody can accuse him of being a newcomer to the publishing business. He’s been around since the ‘80s, and is just about the only publisher of his era still around as an independent company.

As O’Reilly points out, the publishing industry is going to be changing a lot over the next few years. I can’t wait to see how it all turns out.

Reviewing my list for last year, I can’t really find a whole lot that I would change on it. Despite the onset of agency pricing, we’ve still got about a zillion DRM-free free and cheap e-books available from other sources. EPUB is still being widely adopted, even if Barnes & Noble and Apple are fragmenting the DRM on it. E-book readers are exploding more than ever, especially with the iPad and iBooks joining the fray.

My iPod Touch is gone, alas, but someday I’ll have another. Google Book Search is still up and coming. Baen’s rescued Meisha Merlin writers are cranking out even more books (including the Liaden novel fans have been awaiting for literally years, and three more following that!).

And e-reader prices are falling faster than ever, with multiple readers available this Black Friday or holiday season for under $100. Even the industry leaders are getting in on the act: Amazon is selling its G2, 3G-wireless only reader for $89 tomorrow, and Barnes & Noble has its wi-fi Nook on eBay for $99. That kind of deal has been unheard of until now.

There are still a lot of annoyances in the e-book market as a whole—agency pricing, territorial restrictions, obnoxious DRM—but we should probably pause for a moment and give thanks for how good we have it now, compared to, say, five years ago. E-books are on a lot of people’s minds now, and the more people read them the better they’ll get. Sooner or later we’re going to have that dirt-cheap “disposable” e-reader the way we now have dirt-cheap “disposable” cell phones.

Industry observers are pleased with the deal, which seems to have produced a similar result to the Google Books settlement without expensive, time-consuming litigation. However, the French Publishers Association is still skeptical, warning that Google "has never respected its commitments as regards intellectual property law".

And French Culture Minister Frédéric Mitterrand has reacted cautiously, expressing regret that Hachette acted unilaterally before the French book business as a whole had reached a consensus strategy, and saying he would continue consulting with the publishing industry toward that end.

Warning that the [agreement between Hachette and Google] must "respect the principles defined within the framework of these consultations", Mitterrand said he had told Google in the last few days that he attaches great importance to the issue and that his priority was for respect of authors’ and publishers’ copyright to be assured before the U.S. concern began working with major institutions like the French National Library. He "will remain attentive to the results of the (legal) procedures underway in the United States", where a settlement between authors and Google is awaiting approval by the courts.

The Bookseller’s FutureBooks reports on the settlement and posts the press release. The Bookseller itself has more backstory, noting that Hachette had filed an objection to the Google Books settlement with the US court in September. Google says that it does not currently plan to replicate the deal in other countries, but is “always talking to our publisher partners around the globe about possible collaborations."

For links to all the videos see this Resource Shelf article.

And a couple of libraries are contributing scans of a few hundred older works that are still under copyright—which is what got Google in trouble. For books that are still under copyright, the library will treat a physical book and an electronic scan of that book as the same volume: it will check out one e-copy of a book for each physical version of the book it has, and while the e-copy is out the physical one cannot be checked out, or vice versa.

A checked-out e-copy will be automatically rendered inaccessible at the end of the checkout period by DRM, just as with the Overdrive and Fictionwise lending libraries.

Brewster Kahle, founder of the Internet Archive, has been very critical of Google’s Google Books project and the associated settlement. His point of view is that Google is using the courts to seize to itself the legal ability to do the sorts of things that the Internet Archive has been trying to do. It’s not surprising that Kahle would embark upon a similar plan himself.

Of course, the Authors Guild might well challenge this plan just as it challenged Google’s. Scanning books without permission is arguably against the law, and while tying e-book checkouts to owned copies of printed books is a novel idea it is unclear whether the courts would consider it a fair use. Paul Aiken of the Authors Guild said "it is not clear what the legal basis of distributing these authors’ work would be."

On the other hand, Google went from just wanting to scan books to enable searching and showing limited snippets to having a very ambitious plan to become the next big e-bookstore competing with Amazon, Google, and Apple, just by being sued by and settling with the Authors Guild. Perhaps Kahle could be hoping for the same thing.

This is important stuff and is something that has been at the heart of my objections to the Settlement.

From the Open Book Alliance website:

Today, the Open Book Alliance released a comprehensive analysis that details how the proposed Google Books Settlement violates international laws and treaties.  A full version of the study can be found here.worldCynthia Arato, partner at the law firm of Macht, Shapiro, Arato and Isseries and a prominent litigator on intellectual property and copyright issues, finds that “numerous provisions of the proposed Google Books settlement would, if approved, violate the treaty obligations of the U.S.  If the settlement is approved, it may give rise to legal action against the U.S. before an international tribunal and will certainly expose the U.S. to diplomatic stress.”

For the first time, the proposed class action settlement between Google, the Association of American Publishers and the Author’s Guild has been fully evaluated to determine the claims and remedies that other nations may seek through the World Trade Organization (WTO) for the violations that an approved Google Books Settlement would incur.

Specifically, Arato found that:

“The settlement would (1) grant Google automatic rights to exploit digitally millions of books without requiring Google to obtain any authorization from any foreign copyright owner or author; and (2) require these foreign rights holders to jump through burdensome hoops simply to exercise a watered-down contractual right – that the settlement creates – to halt such use.”

Foreign nations that wish to challenge the U.S. over treaty violations of the settlement may do so before the World Trade Organization.  Violations can lead to financial penalties or trade sanctions against the U.S.  The governments of France and Germany have already formally objected to the proposed settlement.

But beyond financial penalties and trade disputes, we have to ask ourselves if we’re happy thumbing our nose at the rest of the world for the benefit of one company.  We suggest not.  There are alternatives to the GBS that will benefit a broader audience and welcome international partners’ contributions.