[Infowarrior] - Critics trash new Google Books settlement

[Richard Forno]

The sequel stinks: critics trash new Google Books settlement
By John Timmer | Last updated January 29, 2010 3:12 PM
http://arstechnica.com/tech-policy/news/2010/01/the-sequel-stinks-critics-trash-new-google-books-settlement.ars
With everyone from authors to librarians upset about the initial  
settlement of the Google Books copyright lawsuit, and the US  
Department of Justice hinting that it was likely to be illegal, the  
parties involved withdrew it from consideration. After some  
modifications, it was resubmitted to the court; the deadline for  
comments on the new version passed yesterday, and many of the same  
parties submitted new briefs. But anyone who read the initial round  
may feel like they're experiencing déjà vu when reading the new batch.  
For most of the settlement's critics, very little has changed, and  
their initial complaints remain.

To be sure, Google has now won over a number of authors groups,  
including groups from Australia, Canada, and the UK. But in the list  
of filings tracked by the public index, objections abound. Some of  
these come from the authors themselves. Ursula K. Le Guin, for  
example, organized over 350 authors who objected to the fact that the  
agreement would apply to anyone who didn't opt out of it, a condition  
that most observers consider a major change in US copyright  policy.

The Estate of Richard Wright raises an interesting issue in a filing  
that otherwise borders on a diatribe. One thing that isn't addressed  
by the settlement is Google's ability to scan works without offering  
them for view. Although this limits the knowledge of the contents to  
machine learning algorithms that are currently fairly crude, this will  
ultimately change as our computational abilities improve. Wright's  
descendants think it's better to sort out what it means for a machine  
to know about the contents of a work now, rather than when it actually  
becomes a significant issue.

Le Guin's concerns about the deal's shift from opt-in licensing to opt- 
out deals are echoed by major companies that also offered their take,  
such as Amazon and AT&T, which filed very similar objections. As  
potential Google competitors, both of these companies also focused on  
the antitrust issues involved, objecting to the fact that the revised  
settlement could still leave Google with extensive control over  
orphaned works and digitized books in general.

One of the changes to the settlement is that Google will help set book  
prices by developing an algorithm that simulates what the prices would  
be under competitive market conditions. In essence, Amazon argues,  
that's simply having a computer make a decision that would otherwise  
be made by a human; the net result would still be a fixed price  
dictated by a single entity, something that antitrust law is intended  
to prevent. "The claim that this is acceptable or well-intentioned  
price fixing," Amazon's filing reads, "because it will supposedly  
mimic the market, does nothing to save the [revised agreement]."

Amazon also argues that some of the changes made in the revised  
settlement only cover direct-to-consumer sales, and keep exclusive  
arrangements in place for subscription and institutional services. It  
also objects to clauses that provide Google protection against future  
claims, something it objected to the last time around, as well.

The Internet Archive has a similar objection, as its filing has an  
entire section titled "No Class Settlement Should Authorize Google To  
Commit Additional Wrongful Acts in the Future." It says that the  
settlement, by effectively endorsing Google's illegal activity,  
provides legal sanction to what is now an insurmountable lead over  
competitors when it comes to content—nobody is going to be able to  
scan quickly enough to catch up with where Google already is any time  
soon.

Public Knowledge, an advocacy group, takes a more nuanced view. In  
general, it finds the spirit of Google's effort—"making knowledge and  
creative works available to the general public"—in keeping with its  
mission, and doesn't think that the service itself necessarily  
violates any laws. But it wants to see the contents of orphaned works  
equally available to all, rather than made the exclusive domain of  
Google. To do that, it argues, we need changes in copyright law, not a  
settlement that is limited to two parties.

At the far end of the spectrum is the Open Book Alliance, which  
includes libraries, author groups, and some of Google's competitors,  
like Amazon and Microsoft. Its filing leaves no doubt about how it  
feels about the revisions under consideration: "The paltry proposals  
offered by the  parties for amending the Settlement—truly, a  
disdainful response to the vast outpouring of global criticism—change  
little."

Its filing reiterates many of the complaints mentioned above, but goes  
well beyond that, accusing Google of starting the book scanning  
project and structuring the deal simply as a way of maintaining its  
dominance in the search market. The deal itself is little more than a  
sham, the OBA argues, since Google has already cut a variety of side  
deals with the publishers that are parties to the settlement. Once the  
settlement goes into effect, those will dictate the structure of the  
digital book market, making the true nature of the changes impossible  
to discern.

Overall, the revisions to the settlement may have placated a number of  
parties, but some of the major objections remain: Google will have a  
significant degree of control over the future market for digitized  
works, and the settlement will require a change to how copyright is  
approached in the US, in that license holders will see some rights  
given to Google unless they act to prevent that. Although this concern  
is raised by many of Google's competitors, the US Department of  
Justice also objected to this aspect of the settlement.

The last time around, both parties in the settlement chose to withdraw  
the agreement in order to deal with the vociferous criticism. Most of  
that hasn't abated, and it doesn't seem likely to without major  
structural revisions to the deal, revisions the parties involved  
appear reluctant to make.