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Thursday, September 10, 2009

Google: The Fix is In. Publishers and Authors Lose

From Publisher's Lunch:

Congress Has No Questions for Publishers As Copyright Office Protests

In what could be viewed as a signal that Judge Denny Chin is ready for resolution on the Google Books Settlement case, yesterday he quickly denied two motions from opponents. In both rulings, Chin emphasized the view that there has been plenty of time for investigation and expression.

Judge Chin swatted away efforts by Lewis Hyde, Harry Lewis and the Open Access Trust to formally intervene for the second time (they were first turned down in April), writing: "This case was filed some four years ago and has been conditionally settled; it is simply too late to permit new parties into the case." He did add that "the Court will, however, consider the objections raised by the proposed interveners."

Chin also denied the "various discovery requests" of the Bloom Objectors, saying they "have had ample time to seek discovery" and adding that "the Court will not, at this late stage, allow the proceedings to be delayed."

At the least, reasonable people could conclude that this same attitude means the Judge will probably not be swayed by the many objections of publishers from other countries that notice of the settlement was inadequate.

Today the spotlight is on the House Judiciary Committee on Competition and Commerce in Digital Books. We were fascinated to see that the list of eight witnesses does not include a single publisher. (AAP vice president Tina Jordan tells us that the "AAP did in fact suggest to the judiciary committee staff that a book publisher should participate in the hearing.") Scheduled to appear were: David Drummond of Google; Paul Misener from Amazon; Paul Aiken from the Authors Guild; Marybeth Peters from the US Copyright Office; Marc Maurer at the National Federation of the Blind; John Simpson from Consumer Watchdog; Randal C. Picker from the University of Chicago Law School; and David Balto at the Center for American Progress.

You can follow glimpses of testimony via Twitter for now.

A Reuters article previewed David Drummond's argument that "We believe anyone who wants to re-use abandoned works should have a fair, legal way to do so. In our view, the settlement helps."

Early posts indicate Representative Zoe Lofgren commenting that we wouldn't be here if Congress got orphan works right--but we failed, and also saying she was distressed to receive testimony from Copyright Office only this morning. Lofgren later reportedly reiterated that Congress could solve orphan works by repealing the Sonny Bono term extension, while acknowledging that won't happen. Committee Chairman, Representative John Conyers is said to have remarked that this could be the greatest innovation in publishing since the Gutenberg press, and also noting that while the proposed settlement would give Google has exclusive access to orphan works, that can be remedied by legislation.

But Marybeth Peters at the Copyright Office is cited as complaining that "Key parts of the settlement are fundamentally at odds with the law." In a letter to the committee, Peters says in multiple ways that Congress should be concerned about the settlement's attempt to resolve issues that Congress itself has not acted on: "In the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress.... We are greatly concerned by the parties' end run around legislative process and prerogatives, and we submit that this Committee should be equally concerned." Peters reiterates the position that it "would inappropriately interfere with the on-going efforts of Congress to enact orphan works legislation in a manner that takes into account the concerns of all stakeholders as well as the United States' international obligations."

At the same time Peters goaded Congress to act, Representative Melvin Watt is said to have expressed reservations about the separation of powers issue with Congress holding a hearing about a pending court case.

Meanwhile, though the court's filing deadline has passed, their electronic document system continues to add additional papers. Among them the Center for Democracy & Technology noted their support of the settlement, while Questia filed a complaint along the lines of Google-is-ruining-our-business-and-won't -even-link-to-us.

An informal group called the Privacy Authors and Publishers--including Michael Chabon, Ayelet Waldman, Jonathan Lethem, Lawrence Ferlinghetti, Cory Doctorow, the EFF, and the ACLU and Cleis Press filed an objection, saying the settlement "fails to safeguard reader privay." Stretching their argument to fit as an objection from within the author and publisher classes, they "believe that the lack of privacy protections in the current settlement will deter readers and thereby harm their expressive and financial interests in sustaining and building a readership that browses, reviews, and purchases their works."

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