Objections to the Google Book Settlement
Friday, September 4th, 2009 by Harry LewisI have blogged several times about the Google Book Settlement (type “settlement” into the search window to bring up the posts). To be brief: Google started scanning books, including copyrighted works; organizations representing authors and publishers of copyrighted books sued Google for copyright infringement; the three parties have worked out their differences behind closed doors, producing a very long settlement agreement, which is now public; the matter now sits on the desk of a federal judge, Denny Chin, who must either approve or disapprove the settlement document (he cannot edit it). Because it is a class action lawsuit, members of the class are invited to tell Judge Chin what they think. The deadline for that is today. A number of objections have been filed; it appears that a group of distinguished authors and academics, including Jacques Barzun, Harold Bloom, and Harvard colleagues Steven Ozment, Mary Ann Glendon, and Ruth Wisse is also planning to file (pdf of notice here).
(There are other legal strategies for opposing the settlement. Microsoft, Yahoo, and Amazon are all lobbying the Department of Justice to oppose the Settlement, on anti-trust grounds. Amusing as it is to see Microsoft warning about the possibility of another company becoming a monopoly, it is quite correct in that fear.)
I am grateful to Lewis Hyde for permission to reproduce his eloquent objection immediately below. I have filed a brief objection myself, which I include below Lewis’s.
The Honorable Denny Chin
% Office of J. Michael McMahon, Clerk
U.S. District Court, Southern District of New York
500 Pearl Street
New York, NY  10007
August 31, 2009
Dear Judge Chin:
I write to object to some of the terms of the settlement that has been proposed by the litigants in Case No. 05 CV 8136, The Authors Guild, Inc., et al. v. Google Inc.
I am a member of the Author Sub-Class in this lawsuit.  The University of Michigan library lists eight books of mine that we may assume were digitized by Google in the course of their creation of Google Book Search.  These include The Gift (Random House, 1983), This Error is the Sign of Love (Milkweed Editions, 1988), and Trickster Makes this World (Farrar, Straus, 1998).
As an author I am also a reader, a user of libraries, and a beneficiary of the public domain.  I say this because I believe that the settlement in question amounts to a major intervention in our national cultural policy, one that will affect the U.S. knowledge ecology for generations to come.  It therefore should not be adjudicated upon the assumption that we authors (and our publishers) are rights holders only.  We are cultural citizens as well; our copyrights matter to us, but so do larger questions of how literature and knowledge circulate among us.
It is my understanding that courts hold fairness hearings in class action law suits in order to determine whether all members of the class find the proposed settlement fair, adequate and reasonable.  While I applaud many of the elements of the settlement in question, I am nonetheless troubled by several others.  To be specific:
*¬† I object to the settlement’s proposed capture of income from orphan works.¬† I can think of nothing in the history of copyright law, or in the law as currently written, that would countenance such a taking.¬† As a 1988 House of Representatives Report stated clearly:
Under the U.S. Constitution, the primary objective of copyright law is not to reward the author, but rather to secure for the public the benefits derived from the author’s labors.¬† By giving authors an incentive to create, the public benefits in two ways:¬† when the original expression is created and…when the limited term… expires and the creation is added to the public domain. [H.R. Rep. No. 100-609 at 17]
In no instance are third parties meant to benefit, as the settlement would allow.¬† The primary beneficiary of a copyright grant is the author and, as copyright expert Melville Nimmer once wrote, “the ultimate beneficiary is the public domain.” [Nimmer on Copyright III at 13]¬† To allow other parties to intervene between the author and the public would be like allowing an executor to drain an estate before distributing it to the rightful heirs.
The settling parties must therefore find some better way to dispose of the unclaimed funds that accrue from orphan works.¬† My own suggestion would be for the court to appoint a guardian or trustee charged not just with the task of representing absent owners but with a mandate to do so in the light of copyright’s traditional double focus:¬† rights holders must be given their due and, where no rights holder can be found, the public domain must be the beneficiary.
*  I object to the monopoly powers that Google and the Books Rights Registry will acquire, should the court approve the orphan works elements of the settlement.  Approving the settlement as it stands will in essence grant the settling parties a compulsory license enabling them to exploit the commercial value of orphan works.  Because of the unique nature of class action litigation it will be virtually impossible for any other digital library or search service to receive such an exemption.  Google will thus be in a position to monopolize this important part of our emerging knowledge economy.
Again, history makes it clear we should be wary of such broad powers in regard to the circulation of knowledge.¬† Copyright has long been classified as a monopoly privilege and in the context of expression, as Lord Macaulay famously said, “…monopoly is an evil.¬† For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.” [Misc. Works (1880) at 233]
In our own tradition, as you may know, Thomas Jefferson believed that the Constitution ought to have prohibited monopolies in general and, if an exception were to be made for copyright, believed that it should be strictly limited.¬† In a letter to James Madison dated 28 August 1789 Jefferson suggested the following addition to the Bill of Rights:¬† “Monopolies may be allowed to persons for their own productions in literature…, for a term not exceeding ‚Äì‚Äì years, but for no longer term, and no other purpose.”¬† (As for the term, Jefferson’s usual suggestion was 19 years.)
In short, monopoly privileges in the world of public expression have been viewed with extreme skepticism ever since the first appearance of a public sphere in the eighteenth century.  It would be dangerous indeed to grant them now to the private parties who propose this settlement.
*¬† Finally, I object to the fact that no representative of libraries or of the public interest will be a voting member of the board of directors of the Books Rights Registry.¬† The Registry promises to be an important player in the nation’s cultural environment; if it is called into existence, its directors must represent the users as well as the owners of proprietary content.
In sum, while I support many elements of the settlement as currently drafted, in regard to the items I have here listed I do not consider it to be fair and reasonable.  I urge you to take these issues into account as you approach the difficult task of deciding whether or not to approve the settlement.
Yours sincerely,
Lewis Hyde
And here is my own letter to the judge.
The Honorable Denny Chin
% Office of J. Michael McMahon, Clerk
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, NY  10007
September 4, 2009
Dear Judge Chin,
I write to object to some of the terms of the settlement that has been proposed by the litigants in Case No. 05 CV 8136, The Authors Guild, Inc., et al. v. Google Inc.
I am a member of the Author Sub-Class in this lawsuit.  At least four books of mine have pesumably been digitized by Google in the course of the creation of Google Book Search: Excellence Without a Soul: How a Great University Forgot Education (PublicAffairs, 2006), Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion (co-authored by Hal Abelson and Ken Ledeen, Addison-Wesley, 2008), Data Structures and their Algorithms (co-authored by Larry Denenberg, HarperCollins, 1991), and Elements of the Theory of Computation, 2nd Edition (co-authored by Christos Papadimitriou, Prentice Hall, 1998).
I am Gordon McKay Professor of Computer Science in the School of Engineering and Applied Sciences at Harvard University. As a scholar, I am not only a writer of books but a reader, researcher, and teacher who uses books daily.
While I support many aspects of the proposed settlement, I object to the proposed settlement because it threatens to create an unregulated digital book monopoly. Specifically, it would grant to Google and the Books Rights Registry legal license to profit from orphan works (copyrighted works whose rights holders are unknown, and who therefore cannot set what the proposed settlement refers to as a “Specified Price”). It is unfair for these parties to profit from works they had no role in creating. Moreover, the proposed Settlement would grant Google the authority to set the price of orphan works without any outside review or regulation. In other commercial domains where monopolies have arisen (electric power and telecommunications, for example), some public body has overseen the pricing structure. It would be unfair for the Court to sanction the creation of a private information monopoly, in which Google could, without fear of competition or regulation, fix prices for works to which it does not hold rights.
Thank you for your attention.
Sincerely yours,
Harry R. Lewis
September 9th, 2009 at 6:23 pm
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January 30th, 2010 at 11:57 pm
[…] about the future or cultural heritage if the settlement goes through. Lewis Hyde has amended his previously filed objection, still puzzled about the treatment of orphan works. His letter speaks for itself so I include it […]