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The Google Books Decision (links)

The decision is in.  “Google Inc.’s six-year struggle to bring all the world’s books to the Internet suffered another big setback at the hands of a federal judge.  Judge Denny Chin, in a ruling filed in U.S. district court in Manhattan, rejected a 2008 settlement that Google forged with author and publisher groups to make millions of books available online. The 48-page decision concludes that the $125 million deal would give the Internet giant the ability to ‘exploit’ books without the permission of copyright owners.  ‘While the digitization of books and the creation of a universal digital library would benefit many,’ Judge Chin wrote, Google’s current pact would ‘simply go too far.’ The deal would ‘give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission,’ he said.  He also suggested a way to revise the deal: rather than let copyright owners of books ‘opt out’ of the settlement, copyright owners should be given the choice to ‘opt in.'” (via Wall Street Journal)

This deal would have created astonishing precedents. “The settlement is especially controversial because it uses class action law to affect the rights of a breathtakingly broad array of authors and publishers. In approving a class action settlement, a judge must determine if it fairly represents the interests of the affected parties—in this case, millions of copyright holders. And those copyright holders have not been shy about voicing their displeasure.  Most importantly, the proposed settlement was far more ambitious than the underlying legal dispute. ‘The case was about the use of an indexing and searching tool,’ Judge Chin wrote, ‘not the sale of complete copyrighted works.’ Yet the settlement gave Google broad latitude to open an online books store to sell copies of many of the books it has scanned.  And crucially, through the legal fiction of the class action mechanism, the settlement gives Google the right to sell copies of ‘orphan works’ whose copyright holders—by definition—cannot otherwise give their permission.” (via Ars Technica)

And not just for authors. “Unlike the privacy you normally experience online, Google’s current practices show it is capable of compiling ‘dossiers’ that reveal our lives in intimate detail. These dossiers may be shared across Google products or with partners, civil litigants, and law enforcement without clear standards for review. Other online bookstores raise similar concerns, but Google is the company seeking federal court approval of what may well become the world’s largest digital book repository — so it must lead the way in protecting online reader privacy and anonymity.” (via EFF)

It also highlights the need for a real ‘Orphan Works’ solution for everyone. “The effect of this was that the agreement essentially rewrote copyright law for Google and Google only. It would give Google the right to sell copies books it didn’t have the rights to—’orphan works’ that are still under copyright, but where the copyright owner can’t be found. Selling full-text copies of copyrighted works without permission is not a traditional fair use—and it’s not what Google was doing when it got sued, to begin with.  As for orphan works, Congress needs to act.  The law needs to be fixed to allow orphan works to be used in reasonable ways while respecting that they’re still under copyright.  It’s great that Google and the Guild thought creatively about how to pay any orphan works rights-holders who eventually came forward, but a situation where the orphan works problem is ‘solved’ by creating a monopoly digital library is untenable. If Google is able to exploit orphan works, then anyone else should be able to on the same terms.” (via Public Knowledge)

About Jean Cook

Jean Cook is a musician, producer and Director of Programs for Future of Music Coalition, a national nonprofit that works to improve the lives of musicians through research, education and advocacy on policy issues that directly impact the ability of musicians to make a living and reach audiences. She is a founder and director of Anti-Social Music, a New York-based new music collective, and currently records and tours with Ida/Elizabeth Mitchell, Jon Langford, and Beauty Pill. For FMC, she currently project directs initiatives to fix jazz and classical music metadata, analyze what is actually played on jazz radio (and how to improve data collection), and understand how copyright impacts indigenous artists in places like Ethiopia, Tajikistan and Australia.

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