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Open Internet

Google Books Case Nearing an End?

Eyes from the copyright and copyleft alike – as well as privacy advocates – were on a federal court in New York City this morning as Judge Denny Chin presided over the final fairness hearing in the Google Books case. Google and the author and publisher plaintiffs vigorously defended their second attempt at a settlement that would transform Google Books into a massive digital library and bookstore, in the face of major questions from scholars, public interest groups, Google competitors, and the U.S. Department of Justice. CDT’s own John Morris participated in the hearing, supporting approval of the settlement but strongly urging the court to add privacy safeguards to it (as we described in our amicus brief).
The sweeping settlement would grant Google the right to index, display, and sell full-text access to millions of books (to date they’ve scanned over 12 million). Many of the speakers this morning acknowledged the public benefit of such a service, but critics raised serious concerns, mostly around class action, antitrust, and copyright law and policy. Law Professor Pamela Samuelson and the DOJ, for example, questioned whether commercial authors and publishers have adequately represented the diverse interests of such a large class of copyright-holders, especially in light of the ongoing licensing the settlement contemplates. They and others, including Amazon and Microsoft, also balk at the exclusivity the settlement would grant Google. If approved, Google would be the only digital outlet with a license to scan and distribute unclaimed and “orphan” works. In addition, a significant number of authors, most famously exemplified by Arlo Guthrie, object to the breadth of the rights automatically granted to Google by the class-action mechanism.
CDT has long taken the position that, although the settlement is far from ideal, “one” is better than “zero” when it comes to comprehensive digital book repositories.  Given Congress’s track record on orphan works legislation, it is unlikely that the benefits it offers will come to pass in any fashion in the near future, other than through this settlement.  
Nonetheless, the risk to reader privacy and intellectual freedom is significant in light of the tracking Google will have to do to implement the expanded services. So in CDT’s five minutes to speak (the last of the supporters before a 2-hour parade of objections), John argued that the Court has a responsibility to ensure that the public interest in reader privacy is protected as the settlement is put into effect. While the Court’s primary consideration is whether the settlement is fair, reasonable, and adequate to the members of the class (the authors affected), it must also consider its consistency with the public interest.  CDT presented to the court a list of privacy safeguards that the Court should include as conditions on an order approving the settlement.
How receptive Judge Chin ultimately is to many of the objections presented this morning remains to be seen, but the hearing was encouraging on the privacy front.  He seemed receptive to CDT’s arguments, as well as those of the Electronic Information Privacy Center and the Electronic Frontier Foundation, and even pushed Google a bit on the issue. When Google’s attorney asserted that anonymous reading would still be possible in libraries with the settlement approved, Judge Chin asked, “and if you want to read it at home?” The attorney admitted this could be an issue.  We certainly hope Judge Chin agrees.
Many of his questions focused on whether the settlement goes farther that copyright and class action law can support, and he seemed genuinely interested how to fix it in such a case. Other observers I spoke with generally agreed that the decision will likely come down to how much weight the Justice Department’s opinion carries. If he is inclined to agree that class action and copyright cannot support a forward-looking settlement, it’s back to the drawing board for Google and the plaintiffs; if not, the settlement will be approved (followed by a certain round of appeals). He seemed eager, though, to move the case along, so I wouldn’t be surprised to see a decision relatively soon.