EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
| From: | EFF Press <press-AT-eff.org> | |
| To: | presslist-AT-eff.org | |
| Subject: | EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal | |
| Date: | Tue, 08 Sep 2009 07:03:00 -0700 | |
| Message-ID: | <4AA66414.2050504@eff.org> |
Electronic Frontier Foundation Media Release For Immediate Release: Tuesday, September 08, 2009 Contact: Rebecca Jeschke Media Relations Director Electronic Frontier Foundation press@eff.org +1 415 436-9333 x125 Jason Schultz Director Samuelson Law, Technology, and Public Policy Clinic jschultz@law.berkeley.edu +1 510 642-1957 Robyn Shepherd Media Relations American Civil Liberties Union media@aclu.org +1 212 549-2666 National Coalition of Authors Urge Rejection of Google Book Search Deal Ability to Track Readers Puts Privacy at Risk New York - A coalition of authors and publishers -- including best-sellers Michael Chabon, Jonathan Lethem, and technical author Bruce Schneier -- is urging a federal judge to reject the proposed settlement in a lawsuit over Google Book Search, arguing that the sweeping agreement to digitize millions of books ignores critical privacy rights for readers and writers. The group of more than two dozen authors and publishers, represented by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and the Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, School of Law (Samuelson clinic), filed an objection to the settlement today. The coalition is concerned that Google's collection of personal identifying information about users who browse, read, and make purchases online at Google Book Search will chill their readership. "Google Book Search and other digital book projects will redefine the way people read and research," said Lethem, winner of a National Book Critics Circle Award. "Now is the moment to make sure that Google Book Search is as private as the world of physical books. If future readers know that they are leaving a digital trail for others to follow, they may shy away from important intellectual journeys." The settlement, currently pending approval from a New York federal district court, would end the legal challenges brought by the Authors' Guild over the Google Book Search project. It would give Google the green light to scan and digitize millions of books and allow users to search for and read those books online. However, Google's system could monitor what books users search for, how much of the books they read, and how long they spend on various pages. Google could then combine information about readers' habits and interests with additional information it collects from other Google services, creating a massive "digital dossier" that would be vulnerable to fishing expeditions by law enforcement or civil litigants. "I believe that the fear of tracking will create a chilling effect on my readers and reduce my readership, and therefore my revenue, from these books," said Schneier, a computer security expert. "Moreover, I write these books in order to participate in the public debate on security issues. Reduced readership negatively impacts my expressive interests as an author." In the objection filed today, the coalition asks the court to require Google to create a robust privacy policy that gives readers as much privacy in online books as they have in a library or a bookstore and to ensure that the policy is enforceable and overseen by the court on an ongoing basis. The authors and publishers present a list of privacy protections that would improve the settlement, including limiting tracking of users by requiring a court order or judge-approved warrant before disclosure of the information collected, ensuring user control of personal information stored by Google, and making the system transparent to readers. After much pressure from EFF, ACLU, the Samuelson clinic, and others, Google finally issued a privacy policy for Google Books on September 3, 2009. However, that policy doesn't guarantee that Google will require court approval before disclosing reader information, and it doesn't sufficiently limit Google's retention of that information. It is also changeable by Google at any time. A hearing on the fairness of the proposed Google Book Search settlement is set for October 7, 2009, in New York. For today's filing: http://www.eff.org/files/filenode/authorsguild_v_google/F... For more on this case: http://www.eff.org/cases/authors-guild-v-google For this release: http://www.eff.org/press/archives/2009/09/08 About EFF The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/ -end- _______________________________________________ To unsubscribe or manage your email options: https://mail1.eff.org/mailman/listinfo/presslist
Posted Sep 8, 2009 20:00 UTC (Tue)
by coriordan (guest, #7544)
[Link] (2 responses)
Here's FSF's announcement: I think their main argument is summed up in this excerpt: [...]under the proposed settlement, works released under the GFDL and similar licenses are lumped in with works under full restrictive copyright. Google would therefore be given permission to display and distribute these works without abiding by the requirement to pass the freedoms guaranteed under the GFDL[...]
Posted Sep 9, 2009 0:32 UTC (Wed)
by Requiem (guest, #51519)
[Link] (1 responses)
The only people who will have their copyright violated (long term at least) are the ones too lazy to ask for free money.
Posted Sep 9, 2009 10:40 UTC (Wed)
by mjw (subscriber, #16740)
[Link]
Posted Sep 9, 2009 1:49 UTC (Wed)
by xoddam (guest, #2322)
[Link] (20 responses)
Yes, having works available via Google will enable Google to track users who use it. As Google is able to track users who use all its existing services. But users who do not wish Google to track them are free to refrain from using Google's services altogether.
This is not some exclusive licence Google has somehow tricked the court into granting, shutting down other licensed uses. All existing ways of reading all the books in question -- bookshops, lending libraries, reference libraries, downloading from the authors' or publishers' websites or downloading DRM'd e-books from Amazon -- remain available.
There is no way that increased availability of this material via Google's services will *reduce* Schneier's readership via a 'chilling effect' or in any other way, nor will it reduce anyone else's readership. If it can be found with a web search, or within one click of a web search, it will inevitably get *more* readers than if it is only available offline.
There may be an economic argument to make, that if Google's service undercuts other channels then those other channels will be less economically viable than they might otherwise be. But I don't see this argument in the linked articles and I don't buy it. People who prefer real paper books will not use this service *in place* of paper, merely to better inform their purchasing decisions. Better-informed customers might reduce the margins of the publishing industry but to argue on those grounds would be pure rent-seeking.
People who don't prefer paper will be downloading their reading material online in any case, possibly preferring someone else's work because it is searchable and 'free beer' when the books in question are not, and probably in a way which is harder to measure and to monetise than the Google service.
Bottom line: if you care so much about your privacy that you don't want google to track you, *don't google*, patronise the alternatives.
Posted Sep 9, 2009 3:20 UTC (Wed)
by JoeBuck (subscriber, #2330)
[Link] (1 responses)
Posted Sep 9, 2009 17:04 UTC (Wed)
by iabervon (subscriber, #722)
[Link]
In part, because it's the organization that cares most about privacy of organizations that are inherently exposed to data (that is, the EFF cares a lot, but the EFF doesn't have access to lots of data; doctors are required by law to care a lot; many businesses don't care much; but public libraries get data, aren't supposed to care, but care anyway). But also, if I find a good source for some extensive topic, I'll want to read the whole book on paper available from a nearby physical location, which means that I want to search my library system's catalog (and, ideally, the editions of books that I can actually check out).
Posted Sep 9, 2009 23:08 UTC (Wed)
by njs (subscriber, #40338)
[Link] (17 responses)
This is close to false.
In a rather breathtaking hack of class action law, if the settlement is approved, Google gets a private exception to international copyright law wherein they become the exclusive source for orphaned works (i.e., most works).
So for the books that are available through other mechanisms (unless they were published in large print runs in the last 10-20 years, I guess that's rare book auctions and university libraries?), yes, you have alternatives to Google. But it will be illegal for anyone but Google to create a complete, online library, and therefore legally impossible for anyone who wants to browse a complete, online library to do so without Google's tracking.
That's a summary, and it probably seems hyperbolic; see Pam Samuelson for more credibility and details: http://radar.oreilly.com/2009/04/legally-speaking-the-dea...
Posted Sep 9, 2009 23:36 UTC (Wed)
by dlang (guest, #313)
[Link] (1 responses)
in my opinion having the ability to get them through google is better.
now the one thing that I do think could be improved would be to not make it exclusive to google, but at the same time, google is the company putting up the money to 'pay' for this. the only fair thing would be to allow any other company to join the club by paying 1/(N+1) the cost of the settlement (where N is the number of companies that have already paid, with google being the first one)
that would let things move forward, but also allow other companies to get in on this while paying google back for their investment in this.
Posted Sep 10, 2009 0:03 UTC (Thu)
by tialaramex (subscriber, #21167)
[Link]
The reason they got a settlement was that this is in almost everyone's interests. For the past few decades we've been saying that "eventually" print-on-demand or some similar technology will make the long tail of books accessible to ordinary people. And while we've been saying this, shelf after shelf of books goes out of print and disappears from mainstream culture. Novels, textbooks, reference works, poetry, much of it mediocre, some rather good, all vanished from sight.
Google says - all those books will be a Google search away, and they're willing to give publishers (where contractually appropriate) and authors a slice of any advertising revenue, and if the reader does more than flip through a page or two as they might in a bookshop, a price of the owner's choosing to read the whole book (and Google don't mind if you set this to $0.00 out of the kindness of your heart, or to five times the sticker price of the original book if you think books ought to weigh something).
In the cases where the book is orphaned, AIUI Google will give the money to a non-profit with the mission of finding the missing owners. My experience with other projects where _money_ was available to missing authors agrees with Google's claim that huge numbers will come forward to get their slice of the pie. Certainly schemes that reward authors for books borrowed from libraries (many of which are also out of print) don't find much of the money sits unclaimed.
Posted Sep 9, 2009 23:47 UTC (Wed)
by tialaramex (subscriber, #21167)
[Link] (3 responses)
To be clear: Any work whose rightsholders can be identified is not an orphan. If the book is published by a company that still exists, or has a successor in interest, it is probably not an orphan. If the author, or where appropriate their estate, can be found in a telephone directory, or with a bit of amateur snooping around, then it's not an orphan. Google will actively be paying for this sort of detective work to get done, as part of the settlement.
If you redefine orphan to mean "not available from my nearest bookshop" then suddenly this seems terrible. But orphan is an existing term of art, not redefined by this settlement, and it means works which don't have any identifiable rightsholder. A work ceases to be an orphan the moment anyone or anything comes forward and says "I'm the author actually" or "I'm the publisher actually".
Traditionally when you needed to use stuff from an orphan work, you'd pay someone to search for the owner, and then when they'd put in a reasonable amount of work without finding anything, you'd make a note that you didn't have a license to use the work, but you were going to anyway, and you'd make sure you could be contacted if somehow your work finally attracted the owner's attention and they wanted to demand that you desist. By doing this you hoped to be shielded from liability, although in practice it was impossible to be quite certain.
Now, I can understand the FSF's point about the consequences for their rather unusual licensing conditions, and I hope they obtain some type of concession, perhaps something about works which contain an integral license for reproduction, but I've seen way too many people who think this settlement is something it isn't. I don't know whether those people will be relieved or unhappy when they find out that they're wrong, but wrong they are.
Posted Sep 10, 2009 6:26 UTC (Thu)
by njs (subscriber, #40338)
[Link] (2 responses)
As for "most", I'm going off Pam Samuelson's comment in the article I linked: "70 percent of the books are...in copyright, but out of print. Most of them are, for all practical purposes, 'orphan works'...". Most of 70% is probably >50%. But I'd be happy to see better statistics.
I'm confused by your comments on publishers -- in many/most cases, publishers have a license/contract to publish the work, and are not the rights-holder themselves. Depending on the contract they might have enough rights to reprint the book themselves, but it seems to me that for most of the works we're talking about, publishers are irrelevant; certainly no publishers were acquiring electronic rights before the last decade or so.
And in many cases the problem isn't finding the authors; it's working out who inherited the rights after the author died, possibly without mentioning those rights in their will, which is probably not public anyway...
Posted Sep 11, 2009 15:39 UTC (Fri)
by giraffedata (guest, #1954)
[Link] (1 responses)
I believe only the strongest authors retain copyright. Most are held by large publishers. I did a quick survey of a bookshelf of technical books, and about 3/4 of the copyrights are held by the publisher, and the rest were held by some other organization - none are held by the individual authors. I believe in fiction, it's about 99% publisher, 1% author.
It makes sense. An author writes; he doesn't manage copyright. It's the same reason inventors sell their patents.
Posted Sep 11, 2009 19:33 UTC (Fri)
by njs (subscriber, #40338)
[Link]
The problem is that norms vary hugely between different parts of the market (and vary historically, too -- what really matters for this discussion is how things worked decades ago). I spoke too hastily, and don't know what the overall proportions really are across the whole market.
Posted Sep 9, 2009 23:52 UTC (Wed)
by xoddam (guest, #2322)
[Link] (10 responses)
> ...
> it will be illegal for anyone but Google to create a
If the settlement really does imply that, it's a travesty. The arguments made in the article and its links did not make it clear at all that the ramification of the settlement was an *exclusive* licence grant to Google.
I hope it's a misreading. The proposed settlement urgently requires clarification, but if this reading is correct, I'm wholeheartedly with the FSF and the EFF. I wouldn't want to see such a settlement in a million years.
Posted Sep 10, 2009 0:05 UTC (Thu)
by tialaramex (subscriber, #21167)
[Link] (8 responses)
The argument from (some of) those against is that once Google is authorised to do this, there's no point in anyone else even trying. This is a rather peculiar argument, and I can't justify it, I will leave that to someone who believes it.
Posted Sep 10, 2009 1:16 UTC (Thu)
by gmaxwell (guest, #30048)
[Link]
This is what is meant by exclusive in this context. See my post down thread for more elaboration.
Posted Sep 10, 2009 6:44 UTC (Thu)
by njs (subscriber, #40338)
[Link] (6 responses)
To me this doesn't seem like a fair summary of Samuelson's arguments, at least, and I believe that article I linked is one of the more influential essays on the doubters side. I'd be curious to see your response to the argument itself (in particular, see section "Google's New Monopoly", and perhaps the section "Representativeness?", inasmuch as it discusses just who archive.org or whoever would have to be dealing with as they tried to duplicate this feat).
As I understand it, the argument is essentially that Google quite accidentally won the lottery (certainly getting settlement was not their plan when they started!), and these lottery tickets cost zillions of dollars, plus an extra zillions-squared dollars if you lose. But that's just my paraphrase.
Posted Sep 10, 2009 14:09 UTC (Thu)
by tialaramex (subscriber, #21167)
[Link] (5 responses)
Suppose we rewrite the lone paragraph that discusses this (feel free to bring up the original and compare word by word):
One way that Google, Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a broad license would be by starting a project to scan books. The scanner might well then be sued for copyright infringement. The lawsuit would probably be settled for similar terms to those we're discussing. Thus competition is open to any entity with sufficient resources to make a decent fist of competing in the first place.
I've changed nothing except Samuelson's unspoken assumption that Google is a special case, and I get to a completely different conclusion. My paragraph (unlike the original) is compatible with observed reality, such a project was set up by Google, there was a lawsuit, this is the settlement.
Posted Sep 11, 2009 19:31 UTC (Fri)
by njs (subscriber, #40338)
[Link] (4 responses)
Duplicating Google's feat requires a huge pile of money (where would the Open Content Alliance get this?) to even try, then you have to convince a judge to certify this huge class again (not clear that any would be willing, given the furor raised by this case -- class action law isn't supposed to be way for defendants to write custom legislation, nor are judges really happy to see their court used for these sorts of shenanigans), and either get some sympathetic group to represent the plaintiffs or convince the Author's Guild to give them a more liberal deal than Google got. Given that the Author's Guild is the same folks who killed Kindle's read-aloud feature because it was oh so copyright infringing, and would by this point be pulling down oodles of cash from their exclusive deal with Google, why in the world would they do anything that OCA wanted?
I'm not a lawyer nor involved in the detailed negotiations here; maybe everything I just said is possible. I hope that if the settlement is approved, OCA gives it a try. But when lawyers who *do* follow these things are dismissing the possibility as essentially impossible, that doesn't make me very hopeful.
Posted Sep 12, 2009 5:09 UTC (Sat)
by tialaramex (subscriber, #21167)
[Link] (3 responses)
Someone remarked in one of the many other discussions I've read on this topic (coming from a very different direction, in this case research use of the metadata from the project) that Google must have spent "tens of millions" of dollars. This provoked mirth from Google employees. I guess it's quite the wrong order of magnitude.
A lawyer is qualified to know the law, and to understand procedure. If the issue was whether I understand procedure, or know the laws, I'd defer. You may not have thought about this, but the _judge_ who has all the evidence in this matter and a good deal more time to think about it, is also a lawyer. If they think the settlement is "shenanigans" they'll reject it. But it isn't "shenanigans" just because you, or Samuelson, or the FSF say so.
You moved the goalposts, perhaps accidentally, in asking for "a more liberal deal than Google got". What's wrong with the Google deal that means any possible second or subsequent deal would need to be "more liberal" ?
Posted Sep 12, 2009 12:24 UTC (Sat)
by njs (subscriber, #40338)
[Link] (2 responses)
Nonsense. If Congress passed a law saying "hey, everyone, you all get the deal Google gets -- you can scan and sell e-books and post snippets etc. for all authors not on this blacklist, just send 63% of your profits to the following address", then there are lots and lots of people and groups who could do useful and interesting things with that ability, without spending hundreds of millions of dollars up front. (Obviously making this work in practice would be much more complicated, but the basic barrier to entry is not necessary.)
> You may not have thought about this, but...
Well... we're verging on incivility here and not convincing each other, so I'll just try to clarify my earlier comment and leave it at that.
By "shenanigans" I wasn't talking about Google; I was referring to our hypothetical group who created a class-action-sized civil wrong for the exclusive purpose of getting sued and then making a deal with the class representative because that's easier than finding all the actual members of the class and negotiating with them. My strong impression is that judges don't look kindly at people who try to manipulate the court system like that. (Google did something quite different: they started the book scanning project for independently worthy purposes, intended to defend it using traditional legal arguments like fair use, and then this deal fell in their laps and they're running with it.)
And fair call on the goalposts -- here's where I'm coming from. The part I find offensive about the settlement is that we're putting a private entity with a profit motive effectively in charge of determining the pricing and availability of orphan works, in a sort of compulsory licensing scheme. I'm all for orphan works being available, compulsory licensing is a plausible approach with a long history, but there are a lot of important interests here -- including the public good! -- and they aren't all represented by this private corporation + small industry trade group setup. If we want to fix this, it isn't really helpful if, I dunno, Microsoft goes and gets their own settlement. We would need someone with a broader mandate, representing librarians and the public and who-ever else. But, by definition, their primary concern would no longer be profit, so they probably couldn't monetize a settlement as well as Google, so why would the Authors Guild even talk to them?
Posted Sep 12, 2009 18:21 UTC (Sat)
by dlang (guest, #313)
[Link] (1 responses)
Posted Sep 12, 2009 21:55 UTC (Sat)
by njs (subscriber, #40338)
[Link]
Posted Sep 11, 2009 16:16 UTC (Fri)
by dlang (guest, #313)
[Link]
Posted Sep 9, 2009 6:09 UTC (Wed)
by gmaxwell (guest, #30048)
[Link] (2 responses)
The social and economic effects of most things is dominated by the typical cases. Yes, the privacy freak can avoid Google, but the privacy freak isn't the person who needs privacy protection: the person who needs privacy protection is the one who hasn't realized the risk, hasn't yet been screwed over.
Even though the deal isn't exclusive, the authors' freedom will be significantly curtailed. "We'll consolidate almost all publishing into a single private entity who also controls almost all of the search, but don't worry you can opt out and go it alone if you wish". It's silly, no one rational will go it alone against a competitor which has 99.9999% market share. The network effects will be tremendous and only compound Google's existing might. All libraries will be Google. Taking your book out of Google's deal? You might as well bury it in a hole.
The objection isn't just to the individual direct impact on privacy or on the book market, but to the greater effect on the nature of privacy and the nature of authorship and publishing.
There is also a greater issue at play here about the power to create laws. If the Google settlement is accepted and allowed to stand, it will represent an almost unprecedented expansion of the ability for wealthy parties to effectively write their own law. Want something from the public? Find a strawman who claims to represent the public, have the strawman begin a class action lawsuit against you, settle with the the terms laid out to achieve your goal by setting the obligations you want on the public. Sure... individuals can opt out, but only will if they know they can and if the harm to them is greater than the trouble it takes to do so.
It seems that Google has figured out the mysterious second step.
Posted Sep 9, 2009 11:39 UTC (Wed)
by pboddie (guest, #50784)
[Link] (1 responses)
This is the essence of the matter for me. Those people distracted by the "free money" angle should take a few moments to understand that Google and the "strawman" in this matter are effectively revoking the rights of other people. Modern living is infuriating enough without having to track all the deceitful practices going on out of sight which might ultimately have an impact on one's own ability to earn a living, or on other fundamental rights which could be affected by "creative" applications of these practices. The "you can opt out" excuse (equivalent to "The plans were on display!") doesn't by any means justify such wrongdoing, even if apologists believe that one should give Google and their "do no evil" policy as much benefit of the doubt as a Vogon would.
Posted Sep 11, 2009 15:29 UTC (Fri)
by giraffedata (guest, #1954)
[Link]
Let's at least get the parties straight. Google and the representative plaintiff aren't revoking any rights. A court of law is (assuming, I mean, the deal goes through). And it's not because Google paid the court or threatened it -- it's because a judge really believes it's right. There's certainly room for someone to believe this is a good idea.
This does seem like an unusually legislative use of a class action lawsuit, though.
FSF suggest rejection of limited access for GFDL's works
FSF suggest rejection of limited access for GFDL's works
FSF suggest rejection of limited access for GFDL's works
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
Yeah, right. If Google can do whatever tracking they want, so can all their competitors, and network effects will drive everyone to the providers with the largest available database.
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
Out of print NOT orphaned
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
in many/most cases, publishers have a license/contract to publish the work, and are not the rights-holder themselves.
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
the exclusive source for orphaned works
> complete, online library
the exclusive source for orphaned works
the exclusive source for orphaned works
the exclusive source for orphaned works
the exclusive source for orphaned works
the exclusive source for orphaned works
the exclusive source for orphaned works
the exclusive source for orphaned works
the exclusive source for orphaned works
the exclusive source for orphaned works
not an exclusive deal
EFF: National Coalition of Authors Urge Rejection of Google Book Search Deal
Google Constructor Fleet
Want something from the public? Find a strawman who claims to represent the public, have the strawman begin a class action lawsuit against you, settle with the the terms laid out to achieve your goal by setting the obligations you want on the public.
Sure... individuals can opt out, but only will if they know they can and if the harm to them is greater than the trouble it takes to do so.
Google Constructor Fleet
Google and the "strawman" in this matter are effectively revoking the rights of other people.