GBS 2.0 Objection Roundup

By Gary Reback

The latest round of briefing produced yet another profound embarassment – bordering on an outright humiliation – for the parties proposing the Google Book Settlement.  Their original proposal met with a torrent of criticism so intense that Google and the publishers withdrew it and replaced it with an “amended” version.

But the amendments turned out to be more illusory than substantive, as an even more diverse array of important interests filed strong objections to the proposed settlement last week.  Individuals, groups and commercial enterprises filed more than fifty new briefs and letters opposing the amended deal.  The opposition came from every quarter:

  • Canadian interests. The plaintiffs’ efforts to “buy off” Canadian opposition failed.  Hundreds of Canadian authors signed a letter to Judge Chin opposing the Settlement.  The Canadian Association of University Teachers – some 65,000 members strong – skewered the proposed deal in a separate filing (Dkt. 900).  Representative quote: “[T]he Authors Guild and the named author plaintiffs do not fairly and adequately represent the interests of CAUT members.”
  • U. S. author groups. The American Society of Journalists and Authors, a professional association representing more than 1,400 freelance writers, and the Science Fiction and Fantasy Writers of America (Dkt. 864), along with the National Writers Union, an organization representing approximately 2,000 freelance and contract writers (speaking through the OBA, Dkt. 840), filed objections.  Representative quote:  The “unprecedented” Settlement “would imperil the intellectual property rights of their members and millions of other authors, as well as many publishers.” (Dkt. 864).
  • International author groups. The Japanese P.E.N. Club (Dkt. 848-2), the New Zealand Society of Authors (Dkt. 867), leading organizations representing authors in Germany, Switzerland, Austria and Italy (Dkt. 868), organizations representing the interests of Indian authors (Dkt. 807), the Spanish Collective Management Organization (Dkt. 827), as well as the Dutch authors organization for authors and translators, Lira (Dkt. 891), objected.  Representative quote:  The Japanese P.E.N. Club explained that the Settlement “still fails to address the fundamental issues the writers worldwide are gravely concerned about.”
  • Academic authors. University of California Professor Pamela Samuelson filed a letter of objection with 150 co-signatories (Dkt. 893).  Assucopie, an organization representing Belgian authors of academic and scientific works (Dkt. 882) objected as well.  Representative quote from Professor Samuelson:  The proposed Settlement is “fundamentally tainted” and “we feel … strongly that it would be better for Google not to have a monopoly on a digital database of these books.”
  • Individual authors. More than 350 authors signed on to a petition written by Ursula K. LeGuin (Dkt. 839).  Other groups of authors filed separate objections (e.g., Dkt. 849 and 855).  Representative quote from the authors’ petition against the Settlement:  “The [Authors] Guild cannot and does not speak for all American writers.  Its settlement cannot be seen as reflecting the will or interest of any group but the Guild.”
  • Commercial enterprises. Microsoft (Dkt. 874), Amazon (Dkt. 823), and AT&T (Dkt. 863) made or renewed objections.  Representative quote:  AT&T warned that in an “unprecedented maneuver,” the Settlement would “eliminate[] price competition among authors and publishers to the detriment of consumers and … entrench Google’s market power in Internet search, with potentially serious impact on the competitiveness and dynamism of the Internet ecosystem.”
  • States. Connecticut (Dkt. 851), Texas (Dkt. 887), Pennsylvania, Massachusetts and Washington (all three Dkt. 860), filed new oppositions.  Representative quote:  The Commonwealth of Pennsylvania concluded that the Settlement’s structure “violates the unclaimed property law of every state and territory of the United States.”
  • Consumer protection groups. Public Knowledge (Dkt. 895), the Center for Democracy & Technology (Dkt. 842), Consumer Watchdog (Dkt. 841), the Electronic Frontier Foundation (Dkt. 824), and the Institute for Information Law & Policy at New York Law School  (Dkt. 856) filed new objections.  Most telling was the change in position by the Institute for Information Law & Policy.  The Institute formerly recommended that the Court insist on the modification of troubling provisions in the Settlement.  After considering the proposed amendments, the Institute asked the Court to reject the proposed deal.  Representative quote:  “While the orphan works problem is serious, this massive class action settlement does not address it in a fair, just, and legitimate way.  Approving the Amended Settlement Agreement would set a dangerous precedent for future cases and undermine democratic political processes.”
  • International publishers. French and English-language publisher Hachette (Dkt. 820-2, 822-2), the Italian Publishers Association (Dkt. 869), Indian publishers (Dkt. 807), VG Wort of Germany (Dkt. 857), the French Publishers Association (Dkt. 836), and individual French publishers (Dkt. 829, 831, 828, 833, 875 and 834) filed objections.  Representative quotes:  The French Publishers Association called the Amended Settlement “illogical, unfair and discriminatory” and the Indian publishers concluded that the Settlement was “contrary to principles of natural justice and fair procedure.”
  • Sovereign nations. The Federal Republic of Germany (Dkt. 852) and the French Republic (Dkt. 853) renewed their objections.  Representative quote:  Germany referred to the Settlement as Google’s “wholesale grab for de facto compulsory license covering the display and non-display uses of worldwide digital book copyrights under the guise of an intellectual property class action.”
  • Literary agents. Writers Representatives LLC (Dkt. 862) and Jenny Darling & Associates of Australia objected.  Representative quote from Stuart Bernstein of Representation for Artists and Susan Bergholz of Susan Bergholz Literary Services:  The “long settlement document, which combines incomprehensible legalese with vaguely and undefined terms, is too complex to be understood by copyright holders and their representatives, especially because until now, copyright holders were not required to defend their rights from what amounts to a hostile appropriation of those rights.” (Dkt. 888)

On the other hand, practically no one filed in support of the new version, which purports to limit the Settlement to books published in the U.S., the U.K., Canada and Australia.[1] The amendments drew dutiful letters of support from publisher associations in those countries, who doubtless cut a secret, sweetheart deal like members of  the Association of American Publishers (AAP) secured in the U.S.  The interested publisher associations, plus a single authors’ group from the UK (which candidly admitted that many of its members object to the deal), represented all the support the parties could muster at this stage of the proceedings.  Also, of the 400-plus parties who objected to the initial version, only one commercial enterprise withdrew its objection.

Many opponents of the deal, including the United States Government in its September 15 filing, challenged the legitimacy of the putative class representatives to serve in that capacity – because of separate side deals for the named publisher plaintiffs, the diversity of publisher and author interests not represented among the named plaintiffs, etc.  Despite what must have been a no-expenses-barred effort by the AAP to drum up publisher support for the amendments, not a single publisher – not one among the thousands and thousands of publishers in the United States – came forward to stand behind the self-appointed class reps in court.  The silence, as the saying goes, was deafening.

The Proposed Settlement is simply incomprehensible, except to the most highly trained lawyers.  Nevertheless, authors, publishers and public interest groups in overwhelming numbers took the time and effort and in many cases bore significant expense (to hire lawyers) in order to make their complaints known.  An untold number of individual authors registered their protests by opting out of the deal.  In the court of public opinion, the Proposed Settlement was soundly rejected.

[1] Google said it was going to keep right on scanning books published in other countries; it just wasn’t going to pay rightsholders any consideration for its appropriation of their works.

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Important Dates

December 14, 2009
Notice begins

January 28, 2010
Deadline for authors to opt out of the settlement

January 28, 2010
Deadline to file objections and/or amicus briefs

February 4, 2010
Deadline to file notice of intent to appear at Fairness Hearing

February 4, 2010
DOJ response

February 11, 2010
Plaintiffs move for final approval

February 18, 2010
Final Fairness Hearing

March 31, 2011
Deadline to claim Books and Inserts