Notes on acronyms: TWUC = The Writers’ Union of Canada. The amended settlement’s acronym is ASA (Amended Settlement Agreement.) For simplicity we will refer to all versions as the Google Book Settlement (GBS).

WHAT TWUC SAID versus WHAT THE COURT DECIDED

I took a quick look at Judge Denny Chin’s judgment, alongside TWUC’s objections, and found that TWUC did not have much to do with his decision.  Our brief, on the other hand, did.   Here are the three documents:

Chin: http://thepublicindex.org/docs/amended_settlement/opinion.pdf

TWUC: http://thepublicindex.org/docs/objections/wuc.pdf

CWAG: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv08136/273913/961/

So, let us remind ourselves of TWUC’s official views of the Google Book Settlement,  compared with what Judge Chin thought of it.

Chin was first and foremost concerned that the GBS would create a virtual online publishing monopoly that would exclude competition.  He cited the anti-trust objections of the Department of Justice.  At the very least, he pointed out that the settlement  “would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission.”  TWUC was silent on this.

Chin concluded that the settlement “is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”  TWUC, however, wrote: ““We do object to certain aspects of the settlement, and request that it be modified to address these issues”.  In other words, TWUC never questioned the fundamental legitimacy of the settlement.

Chin did not like the “opt-out” provisions of the settlement, whereby Google has the right use your work unless you ask them not to:  “…many of the concerns raised in the objections would be ameliorated if the (GBS)  were converted from an opt-out settlement to an opt-in settlement.”  While asking for certain concessions regarding the time frame for removing works from view, TWUC did not actively disapprove of the “opt-out” principle in itself.

Chin had very serious questions about the right of the Authors Guild plaintiffs to represent all authors,  and also cited the number of objectors, noting that “the number and vociferousness of the objectors is a factor to consider in weighing reasonableness of proposed settlement”. On the other hand,  TWUC never questioned the right of the Authors Guild to speak for TWUC members.

Chin regarded all of Google’s digitizing as an infringement but most important (as noted above) he concluded that future sales based even on past infringement are not allowable.  On the other hand, TWUC did not object to Google using material digitized before 2009, so its objection to digitizing after that date seems pretty lame to me.   But the point to remember is this:  Chin did not care when the material was digitized, he cared about Google making money off it.

Chin was concerned about objections that the GBS violates international law.  TWUC agreed with that, which seems encouraging at first read-through.  What is not encouraging, however, is that TWUC still wanted to be part of the settlement and to allow the Authors Guild to speak for them.   This is a pretty fundamental contradiction. Chin thought that the problem of orphan works should be dealt with by Congress.  TWUC also had that position, which is good.  However, TWUC did not seem to realize that this would make the GBS into a creature completely unlike itself, and would be tantamount to demanding that the settlement be rejected.  When this suggestion was ignored in GBS 2.0, it should logically have triggered a demand from TWUC to reject the settlement.

TWUC keeps trying to justify its non-position by claiming it wanted its members to have a “choice” about opting in or opting out.  This claim is not true. In at least one letter to members, TWUC found it worthwhile to point out that no members of National Council had opted out, and the impression of TWUC members is that the TWUC executive and council supported the settlement, however reluctantly.  As noted above, Chin regarded the sheer number of objections and opt-outs as significant.   TWUC could easily have tipped the balance and saved us a lot of trouble.

In short, TWUC never demanded rejection of settlement 2.0 (despite the Quill & Quire headline “TWUC rejects amended Google settlement”  http://www.quillandquire.com/google/article.cfm?article_id=11007 All TWUC did was refuse to endorse it.  And that weakly negative stance was invisible to the court.

February 2, 2010 | 7:16 PM | By Stuart Woods, Quill & Quire

http://www.quillandquire.com/google/article.cfm?article_id=11130

Last week marked two important milestones in the Google Book Search settlement: not only was it the opt-out deadline for authors, it was also the last chance for individuals and organizations to file objections to the settlement with the New York court overseeing the case.

The Association of Canadian Publishers and the Canadian Publishers’ Council both filed briefs in support of the settlement prior to Thursday’s deadline. However, an ad hoc writers’ group, known as Canadian Writers Against Google Settlement, called on the court to reject it. The brief was signed on behalf of some 175 Canadian writers, including Susan Crean, Heather Robertson, Monique Proulx, Russell Smith, Charlotte Gray, Judy Fong Bates, and Patrick Lane.

Prepared pro bono by University of Ottawa copyright lawyer David Fewer, the brief is the first to be filed by a group directly representing Canadian content creators. (The Writers’ Union of Canada, which represents more than 1,700 writers across the country, has not taken a firm position on the issue.) “This is a fairly strong statement by a large group of Canadian authors,” says Fewer, who is the director of the Canadian Internet Policy & Public Interest Clinic. “I would expect this to be taken fairly seriously [by the court].”

The brief is only the latest in a mounting tide of opposition to the settlement, which many are now speculating may be in jeopardy. The original settlement, which was taken off the table last October in the face of mounting global opposition, applied to publishers worldwide. A revised settlement, which will be the subject of a fairness hearing scheduled for Feb. 18, applies only to rights-holders in the U.S., Canada, the U.K., and Australia.

At the very least, Fewer expects the amended settlement will have to be revised again to exclude Canadian and other foreign rights-holders. “All of the reasons for why the rest of the world got excluded apply to Canadians,” he says, “and the onus is effectively on the parties in the settlement to say why Canadians should be included.”

In particular, Fewer says, the Google settlement fails to honour the Berne Convention governing international copyright and disregards the unique trade relationship between Canada and the U.S. under NAFTA. The settlement also disregards Canadian provisions for addressing orphan works, respecting moral rights, and providing privacy protection to readers online.

“There are some pretty significant distinctions between Canadian copyright law and American copyright law,” Fewer says. “It’s a very dangerous assertion to say that … we should be bound by a class-action settlement [in the  U.S.]”