The final deadline for filing objections to the Google Books Settlement has now passed, and the District Court’s web site shows a wave of new filings, mostly objections.
The Computer & Communications Industry Associates filed a brief in support of the agreement, while new objectors include Microsoft and Yahoo, the state of Connecticut, a group of authors led by Harold Bloom, the Internet Archive, the Open Book Alliance (accusing the parties of “a trail of what can only be called misdirection”), Consumer Watchdog, 22 Japanese authors who are key members of the Japan P.E.N. Club, a coalition of authors and publishers concerned with privacy calling themselves Privacy Authors and Publishers, and the Canadian Standards Association.
Microsoft complains that “the purpose of class action is to resolve a legal dispute, not launch a ‘joint venture.’ Google and the three authors and five publishers who filed these actions ask the Court to conscript the vast majority of the world’s copyright owners in books into this ‘joint venture’ that would create a monopoly in digital books. The proposed settlement is unrelated to the narrow legal dispute before the Court and, if approved, would constitute an unprecedented misuse of the judicial system.” They add, “a class action settlement is the wrong mechanism, this Court is the wrong venue, and monopolization is the wrong means to carry out the worthy goal of digitizing and increasing the accessibility of books.
The company asserts that all five of the publisher sub-class members have “a commercial partnership with Google and its own side deal that contains terms that have not been disclosed to class members. These separate agreements are likely to be different and more advantageous than the proposed settlement negotiated for the absent class members.” And they repeat the assertion–without substantiation–made informally by William Morris in writing to its clients that “the publisher sub-class representatives that negotiated the proposed settlement are widely expected to exclude their own books from its terms. The class representatives intend to walk away from the deal that they seek to impose on millions of absent copyright owners.”
Yahoo takes a simpler approach, claiming they file “this objection not to increase that furor but to attempt to explain what it sees as three fundamental, and fatal, flaws in the Proposed Settlement.” They argue that copyright is Congress’s job; the agreement creates competitive barriers for anyone else who scans and presents books online, and the agreement “covers an unascertainable, and conflicted, group of plaintiffs, many of whom have not yet even been harmed (and provides for uses that have not yet come to pass).” And the Open Book Alliance goes further, saying that Google took very little “risk” in its library scanning “because it had already worked out the details in secret negotiations of a business arrangement that shielded it from liability, an arrangement never offered by the publishers to any of Google’s competitors.”
Attorney and agent Lynn Chu of Writers’ Representatives co-wrote a brief challenging the agreement filed on behalf of the “Bloom objectors”–fifty-seven authors including Harold Bloom, Elliot Abrams, Dick Armey, Jacques Barzun, Sherwin Nuland, Norman Podhoretz, Diane Ravitch, Harriet Rubin, Terry Teachout and Paco Underhill (all Writers’ Representatives clients)–and the American Society of Journalists and Authors, joined by the National Writers Union.
Among their assertions, they call the agreement “effectively a forced license that takes property rights away from class members unless they opt out.” They allege “substantial conflicts of interest exist within the Author subclass, especially with respect to orphan works” and complain that the settlement “does not confine itself to a straightforward release of legal claims arising from past damage, but rather creates a complex scheme that releases Google from future conduct and precludes future suits by shunting them to arbitration.”
Like others, they say the agreement goes much too far in creating a new venture rather than simply addressing the actions that provoked the original lawsuits. “An appropriate class action settlement should assess reasonable damages for a waiver of past infringement…not deal in the class’s copyrights by licensing them to the infringer on an ongoing basis.”
But perhaps the most unusual and unexpected filing was from the attorney general for Connecticut. The state asserts that “the treatment of unclaimed funds proposed in the Settlement Agreement would violate state unclaimed property laws by misappropriating unclaimed funds for the maintenance of the Book Rights Registry…and to reimburse authors and publishers by ‘topping up’ their payments under the distribution plan.” And it says that states in general (and therefore their universities, which is a key part of the settlement from the publishers’ perspective) cannot be bound by the agreement: “Connecticut, and every state, is protected by the Eleventh Amendment and the doctrine of sovereign immunity, and cannot be swept into this litigation or its proposed resolution by settlement except by express consent.”
The European Side
Also objecting today were representatives of the French government, which joined Germany as the only other government to file in opposition. European issues were in the news yesterday as well as the European Commissions convened a daylong Google Books Settlement hearing.
In advance of that meeting, Google addressed one of the complaints raised in legal briefs filed by European publishers–that books which are still on the market in Europe were being deemed “commercially unavailable” because they are not for sale in the US and thus are require opting out rather than opting in. Google told publishers in a statement that “books that are commercially available in Europe will be treated as commercially available under the settlement” and thus would not be covered unless publishers choose to opt it.
Additionally–though widely misreported as another concession from Google–the plaintiffs have decided to give two of the eight seats on the board of the Book Rights Registry to representatives from outside of the US (though not necessarily Europe). As Authors Guild executive director Paul Aiken told us, “we discussed this matter with class counsel for the authors and publishers, who decided it was appropriate to include foreign representation, on both the authors’ and publishers’ side, on the Registry board.”