Momentum Shifts Against Google in Old Books Controversy

BNET media relates several new developments in the class action suit between Google and some authors over who will control publishing rights of millions of out-of-print books.

One of the leading legal experts on issues of intellectual property rights, UC Berkeley Professor Pamela Samuelson has written a powerful argument to the presiding judge in the case, U.S. District Judge Denny Chin. Judge Chin himself has also announced that he is extending the deadline for those wishing to oppose the settlement by four months, from May 4 to September 4.

The Justice Department is checking out the antitrust implications of the arrangements made between Google and groups representing publishers and authors, where it would be possible for millions more books to be included in Google Book Search unless the copyright holders take steps to opt out.
A larger issue to those who were not party to the deal concerns the large number of "orphan works", those whose rights holders cannot be identified.

“The proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works,” wrote Professor Samuelson. “[It] would give Google a monopoly on the largest digital library of books in the world. It and BRR, which will also be a monopoly, will have considerable freedom to set prices and terms and conditions for Book Search’s commercial services. … Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions.”

See more on this story at Good Morning Silicon Valley, Los Angeles Times, and Silicon Beat.

Google Books Rival Objects to Settlement

San Francisco's digital library Internet Archive opposes the current 125 million dollar Google settlement with authors and publishers that gives Google the rights to scan and sell books on the Internet.

Dismay at the fate of orphan works, estimated at some 70 percent of books being scanned, is mounting as the May 5 deadline for objections to the settlement nears.

UC-Berkeley School of Law professor Pamela Samuelson said the issue of orphaned works should be handled by legislators, not as a settlement in a class action.

"Usually if you want a compulsory license you have to go to Congress," she said.

Professor Samuelson favors a scenario in which the Internet Archieve as well as other digital libraries in addition to Google, would get a license to scan the boks and make them available online.

"I hadn't expected them to intervene," she said. "It's an interesting development -- it's going to be interesting to see how it turns out."

See more at Law.com .

Copyright Scholar Challenges RIAA/DOJ Position

Slashdot refers to an article in New York Country Lawyer about UC Berkeley Professor Pamela Samuelson, leading copyright law scholar, publishing a 'working paper' that argues directly against the stand taken by the US Department of Justice in RIAA cases on the constitutionality of the RIAA's statutory damages theories. The Department of Justice has argued that the Court should follow a 1919 United States Supreme Court case upholding the constitutionality of a statutory damages award that was 116 times the actual damages borne, under a statute that gave consumers a right of action against railway companies.

The paper discusses, in depth, a number of issues regarding statutory damages under the Copyright Act and also concludes that the State Farm/Gore due process test is applicable to statutory damage awards under the Copyright Act.

This position is consistent with that taken in the amicus curiae filed by the Free Software Foundation in earlier RIAA case defending the defendant's Due Process defense to the RIAA's claim for statutory damages and contradicts the Department of Justice briefs, arguing that the Gore due process test applies.

See the complete working paper, Statutory Damages in Copyright Law: A Remedy in Need of Reform, by Pamela Samuelson and Tara Wheatland .

The DOJ's intervention last month on behalf of the RIAA was covered in a Slashdot posting Obama DOJ Sides with RIAA.

Google’s Plan for Out-of-Print Books Is Challenged

Slashdot mentions an article in the New York Times about a growing tide of complaints against Google in response to an extensive settlement that some feel will grant the mammoth company too much control over the "orphan books" they have been scanning into digital format. The settlement could give Google near-exclusivity with respect to the copyright of books that the author and publisher have basically abandoned. They may be out of print but while they remain under copyright, the rights holders are unknown or cannot be found.

“No other company can realistically get an equivalent license,” said Pamela Samuelson, a professor at the University of California, Berkeley, and co-director of the Berkeley Center for Law and Technology.

Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google intends to create. Without competition, Google will be able to charge universities and others a high price for access to its database.

While most of the critics, including copyright specialists, antitrust scholars and some librarians, agree that the public will benefit, they say others should also have rights to orphan works.

See complete article in the New York Times.