Speaking in Opposition:

1. Sarah Canzoneri, a member of the Children’s Book Guild
2. Scott E. Gant (author and class action specialist)
3. Microsoft
   
4. Amazon.com
5. Science Fiction & Fantasy Writers of America and the American Society of Journalists and Authors
6. Professor Pamela Samuelson, UC Berkeley
7. Cindy Cohn (EFF), on behalf of the Privacy Authors and Publishers
8. Yasuhiro Saito, on behalf of the Japanese P.E.N. Club et al.
9. The French Republic
10. The Federal Republic of Germany
11. The State of Connecticut
12. Questia Media
13. AT&T
14. Cynthia Arato, on behalf of the New Zealand Society of Authors
15. Consumer Watchdog
16. EPIC
17. Open Book Alliance
18. Andrew Devore, on behalf of Arlo Guthrie, Julia Wright, Catherine Ryan Hide, and Eugene Linden
19. Matthew Weiss, on behalf of Darlene Marshall
20. VG WORT

Speaking in Favor:

1. The Institute of Intellectual Property & Social Justice, Howard University School of Law
2. Sony Electronics
3. National Federation of the Blind
4. Paul N. Courant, University of Michigan Library
5. Center for Democracy & Technology

Each of the above parties will have only five minutes to make its case. After that, the DOJ speaks, then the parties. Should be quite a hearing!

The amended settlement attempts to address a number of the objections raised regarding antitrust issues, international copyright ownership, pricing, and access to out-of-print and/or orphaned works. It also has provisions for Open Access options for rightsholders, such as the option to put a Creative Commons license on your work. There do not seem to be any amendments to address reader privacy concerns, at least not directly.

No dates for filing objections or a fairness hearing have been set, but the parties have requested the following:

• December 14 – Supplemental Notice commences.
• January 28 – Class member Opt outs are due.
• February 4 – DOJ comment on settlement is due.
• February 11 – Plaintiffs’ motion for final settlement approval is due.
• February 18 – Final fairness hearing occurs.

Update: Judge Chin has granted preliminary approval to the amended settlement and agreed to hold the fairness hearing on February 18, 2010.

Update: The motion has been granted.

It is worth noting that the DOJ brief clearly recognizes the difficulty that the orphan works problem presents to both sides of the equation. On the one hand, the Settlement provides access to many out-of-print works that may, in fact, be orphaned and thus essentially impossible to license without some kind of massive settlement or legislative efforts. This weighs heavily in favor of approval and the pro-access benefits that would flow from it. On the other hand, it is exactly this inaccessibility that raises the class representative concern. How can a group of plaintiffs and their lawyers represent people who are impossible to find? This raises notice concerns and potential objections to approval.

In light of this and other concerns, the DOJ proposes something of a wait-and-see approach to the Settlement. Wait and see what the parties say in response to these concerns and then if they do not go far enough, reject the Settlement and force them to modify it.

There were many filings, most of them well-chronicled here and  here on Prof. James Grimmelmann’s blog. Of particular note for their entry into the debate are:

1) Several groups of European publishers who have now explicitly raised concerns about the impact of the Settlement on the Berne Convention and other international treaty obligations; and

2) Several state Attorneys General who are concerned about the legality of the Book Rights Registry administering any unclaimed funds under the states’ non-profit and charity laws.

It is also worth noting that there have been numerous amici filings in support of the Settlement, most emphasizing the profound benefits it offers in terms of increased access to information and knowledge, especially for historically disadvantaged groups and those with disabilities.

Finally, I should note that I am counsel on the brief for the Privacy Authors and Publishers (including EFF and the ACLU) and thus, this blog post (and the original in the top 10 list) are my own opinions and should not be construed as those of any of my clients in this matter.

• The Authors Guild v. Google, Inc. (S.D.N.Y.).
• The McGraw-Hill Companies, Inc. v. Google, Inc. (S.D.N.Y.).

Background:

Since 2005, Google has digitally scanned over 10,000,000 books from various libraries, indexed them in its search database, and for those books under copyright and not part of its Partner Program, displaying so-called “snippets” of their content – up to three portions each no more than 8-12 lines in length – without permission from the copyright owners. As a result, a group of authors and publishers filed suit, now as a class action, for copyright infringement. Google has responded with several defenses, including the assertion that everything it is doing is a fair use under Section 107 of the Copyright Act.

Last October, the parties announced a proposed settlement of the case. The settlement agreement is over 300 pages and quite complex. It has many supporters as well as critics. Objections to the settlement can be filed up until September 4, 2009. On October 7, 2009, Judge Denny Chin will hold a hearing on whether the proposed settlement is “fair, reasonable, and adequate” to the class members.

What’s at stake:

Initially, the key legal issue at stake was fair use. Google has cleverly designed its book search strategy to follow a line of fair use cases (Sega v. Accolade,¹ Sony v. Connectix,² Kelly v. Arriba Soft,³ Perfect 10 v. Amazon.com⁴ ) that allowed numerous unauthorized reproductions of entire copyrighted works, even for commercial gain, where the purpose of the reproductions was to assist in “information location” activities, i.e., helping increase access to knowledge, as opposed to “aesthetic” or entertainment purposes. Under the first fair use factor, these courts found such a purpose to be “highly transformative” and thus fair.

The authors and publishers, on the other hand, claim that Google infringes their copyrights because as rightsholders, they have a right to license their works for scanning and indexing purposes and thus, under the fourth fair use factor, Google is harming the market value of their works.

Since the proposed settlement was announced, however, a host of other issues have been raised for the court to consider. These include the privacy⁵ of book readers,⁶ the effect on competition in the market for digital books and book access,⁷ and the potential impact on fair use precedent resulting from Google’s settlement payments for its scanning, indexing, and snippet display activities. In particular, there have been strong fears expressed that the GBS settlement could determinatively shape the market for digital delivery of books before that market even gets off the ground. Add in the emergence of Amazon’s Kindle eBook reader and efforts such as the Open Book Project and the European Digital Library Project, these questions loom large. Whether or not such concerns are valid, however, has yet to be proven.

Regardless of whether or not Judge Chin approves the settlement, this case is certainly one to watch. If approved, it will dramatically impact the way books are accessed online and the copyright, competition, and privacy norms associated with such access. If rejected, there is a good chance that there will either be a revised settlement agreement for the court to consider or else a determination of a critical fair use issue affecting the future of copyright digitization efforts in the United States.

Note: Our friend and co-editor, Joseph Gratz, is counsel for Google, Inc. in this case, but took no part in writing this summary.

See also:

• Eric Goldman, Google Book Search Settlement Comments (A Little Late), Technology & Marketing Law Blog (Nov. 27, 2008).
• James Grimmelmann, Principles and Recommendations for the Google Book Search Settlement, The Laboratorium (Nov. 8, 2008).
• Fred von Lohmann, Google Book Search Settlement: A Reader’s Guide, Deeplinks Blog (Oct. 31, 2008).

Footnotes

1. Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993). [↩]
2. Sony Computer Ent’mt, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000). [↩]
3. Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). [↩]
4. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007). [↩]
5. CDT, CDT Releases Privacy Recommendations Report for Google Book Service, Center for Democracy and Technology (Jul. 27, 2009). [↩]
6. Cory Doctorow, Lethem and EFF on why Google Book Search needs privacy guarantees, Boing Boing (Aug. 12, 2009). [↩]
7. Randal C. Picker, The Google Book Search Settlement: A New Orphan-Works Monopoly?, J. of Competition L. & Econ. (forthcoming). [↩]

• Jewel v. National Security Agency (N.D. Cal.).
• In re National Sec. Agency Telecom. Records Litig. (N.D. Cal.).
• Hepting v. AT&T Corp. (N.D. Cal.).

Background:

In the fall of 2001, President Bush signed an Executive Order permitting the National Security Agency to intercept certain domestic communications of American citizens.  These interceptions were made without a warrant and without adhering to the procedures set forth in the Foreign Intelligence Surveillance Act.  These communications included a substantial amount of Internet traffic.

In 2005, the New York Times revealed the existence of this program.  Shortly thereafter, a former AT&T engineer named Mark Klein came forward with evidence that the AT&T facility at 600 Folsom Street in San Francisco contained equipment which handed off AT&T customer communications to the NSA.

Based on that evidence, in 2006, the Electronic Frontier Foundation filed a class action lawsuit against AT&T styled Hepting v. AT&T.  The United States intervened, seeking dismissal of the suit on the ground that continued litigation would reveal state secrets and harm national security.  AT&T also moved to dismiss.  In July of 2006, Judge Vaughn R. Walker of the United States District Court for the Northern District of California denied those motions.¹ In 2008, Congress enacted and President Bush signed the FISA Amendments Act of 2008, whose express purpose was to end the Hepting v. AT&T lawsuit by granting immunity to telecommunications companies who cooperated in surveillance activities.  It was successful in that aim; Judge Walker granted the government’s motion to dismiss based on that new statute on June 3, 2009.²

Soon after immunity for telecommunications companies became a real possibility, in fall of 2008, the EFF filed a new lawsuit based on warrantless Internet surveillance, this time directly against the government: Jewel v. National Security Agency. In April of 2009, the government moved to dismiss, primarily on the ground that continued litigation would reveal state secrets and harm national security.  After oral argument on that motion, the parties were ordered to submit supplemental briefing on the issue of to what extent FISA preempts the common law state secrets privilege.  That briefing is ongoing, and the motion to dismiss is currently under submission.

What’s At Stake:

Cyberlaw casebooks and treatises are full of cases dealing with intricate questions of Internet user privacy: what information may or must be provided in response to a civil subpoena, or in response to an informal law enforcement request, or in response to a search pursuant to a warrant.  But none of that matters much if the President can simply issue a secret, unreviewable order requiring telecom companies to give the government a copy of every bit that traverses the Internet, without any limits on the uses to which that information can be put.

If dragnet government surveillance is permitted, do citizens cease to have a reasonable expectation of privacy in their Internet communications? Would that open the door to a weakening or elimination of the warrant requirement even in ordinary criminal cases where the Internet is involved?  Would we ultimately circle back to one of the original cyberlaw dilemmas—the regulation of encryption technology?

In some ways, Jewel presents a classic cyberlaw problem: what do we do as a society now that the Internet makes possible something that was previously impossibly difficult?

See also:

• Greg Nojeim, Surveillance Program Overly Secret and Its Importance Overblown, PolicyBeta (Jul. 10, 2009).
• Hugh D’Andrade, News Round-Up: Jewel v. NSA Hearing, Deeplinks (Jul. 16, 2009).
• Howard Wasserman, Is retroactive telecom immunity unconstitutional? No, Prawfsblog (Aug. 15, 2008).

Footnotes

1. Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006). [↩]
2. In re National Sec. Agency Telecom. Records Litig., 2009 U.S. Dist. LEXIS 48283 (N.D. Cal. Jun. 3, 2009). [↩]