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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)

Four Takes on Comcast + NBC Universal

Wondering about the NBC Universal-Comcast merger?  Well, Senator Al Franken and FCC Commissioner Michael Copps think it’s a complete disaster.  A lot of others are scratching their heads as they sort through the incredibly complex deal.  Here are four links to get you started.

We’ll start with FCC Commissioner Michael Copps’ statement.

The Comcast-NBCU joint venture opens the door to the cable-ization of the open Internet. The potential for walled gardens, toll booths, content prioritization, access fees to reach end users, and a stake in the heart of independent content production is now very real.

As for the future of America’s news and journalism, I see nothing in this deal to address the fundamental damage that has been inflicted by years of outrageous consolidation and newsroom cuts. Investigative journalism is not even a shell of its former self. All of this means it’s more difficult for citizens to hold the powerful accountable. It means thousands of stories go unwritten. It means we never hear about untold instances of business corruption, political graft and other chicanery; it also means we don’t hear enough about all the good things taking place in our country every day.

The slight tip of the hat that the applicants have made toward some very limited support of local media projects does not even begin to address the core of the problem. Given that this merger will make the joint venture a steward of the public’s airwaves as a broadcast licensee, I asked for a major commitment of its resources to beef up the news operation at NBC. That request was not taken seriously. Increasing the quantity of news by adding hours of programming is no substitute for improving the quality of news by devoting the necessary resources.

Make no mistake: what is at stake here is the infrastructure for our national conversation—the very lifeblood of American democracy. We should be moving in precisely the opposite direction of what this Commission approves today.

The New York Times on the basics of the deal.  Ars Technica: “The size of the deal leaves mere mortals reaching for thesauri”

Senator Al Franken (D-MN): “This is the first time the FCC has allowed discrimination on the internet” (video)

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