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.

but the one imposed on Canadian writers by Google Inc. was disconcerting, to say the least.

Since 2004, the search engine giant has quietly gone about scanning millions of books found in American libraries, including thousands by Canadian copyright holders who were never consulted, and did not grant their permission. Having built up this digital treasure trove with a variety of commercial aims in mind, Google agreed to settle a class-action lawsuit for massive copyright infringement brought by the Authors Guild of America, offering to pay $125-million (U.S.) in “thank-you” money, for wont of a better phrase, to publishers and their authors.

A deadline of Sept. 4 was established for all those caught up in the scanning project, however involuntarily. Authors could either “opt in” to the terms of the settlement, or “opt out” – thus retaining the right to sue Google down the road.

Because American copyright law doesn’t clearly distinguish between international works published by a U.S. company and works that pop up in an American library, virtually all of world literature and scholarship has become fair game for these settlement terms. Canadian authors have been left scrambling to protect their intellectual ownership without any sense of the long-term implications.

It isn’t even clear what can be gained from “opting out,” since Google has no legal obligation to remove the books it has already scanned. The company is currently doing so merely as a matter of “good faith.” (American conservative Christopher Buckley wants none of that. “Whenever I hear capitalism proclaiming noble motives, something makes me check my wallet,” he observed recently of the settlement.) “This is a pivotal moment in the history of access to recorded information,” Susan Benton, president of the Urban Libraries Council, wrote in an Aug. 19 letter to U.S. District Judge Denny Chin, who has been tasked with reviewing the deal.

A brief filed to the court by Amazon.com is typical of the slow-dawning sense of alarm being expressed: the settlement terms, Amazon charged, “are the stuff of anti-trust nightmares.”

For one thing, Amazon and all other book sellers and libraries unassociated with Google will be precluded from digitizing out-of-print and orphaned works in the public domain. Moreover, works will be deemed to be orphaned if their authors don’t sign Google’s Books Registry. As the Writer’s Union of Canada points out in its brief to the court: “Authors should not lose control over their works because they fail to sign up in a registry in another country.”

It is unacceptable to be bossed around and held to deadlines in this fashion by foreign interests. Canadians who publish books, including everyone from the leader of the federal Liberals to business people, historians, doctors and poets, deserve more than a meagre opt in/opt out say in the future of their collective intellectual property.

Globe and Mail, Editorial Page, Monday, Sept. 07, 2009