Once Again, US DoJ Opposes Google Book Search

angry tapir and several other readers passed along the news that the US Department of Justice has come out against the revised agreement to settle copyright lawsuits brought against Google by authors and publishers. This is a major blow to Google's efforts to build a massive digital-books marketplace and library. From the DoJ filing (PDF): "...the [Amended Settlement Agreement] suffers from the same core problem as the original agreement: it 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. As a consequence, the ASA purports to grant legal rights that are difficult to square with the core principle of the Copyright Act that copyright owners generally control whether and how to exploit their works during the term of copyright. Those rights, in turn, confer significant and possibly anticompetitive advantages on a single entity — Google."

Comments

Opposes?

[eldavojohn]

I read the official press release this morning and it sounded somewhat optimistic:

The department continues to believe that a properly structured settlement agreement in this case offers the potential for important societal benefits. The department stated that it is committed to continuing to work with the parties and other stakeholders to help develop solutions through which copyright holders could allow for digital use of their works by Google and others, whether through legislative or market-based activities.

Seemed to me they weren't happy with Google 'ownership' of orphaned works and the fact that it's "opt out" not "opt in" for authors. I guess you could see that as opposition but basically the amended contract failed to satisfy them. That's why they're having a hearing on Feb. 18, 2010.

A deal this big is bound to have lengthy negotiations and investigations as it's truly game changing for everyone involved and the world at large.

Re:Good

[N0Man74]

You know, an 'Orphaned Work' isn't just works where the copyright holder doesn't make themselves known. There are examples of where an organization has spent a great deal of time and effort to just follow the trail of ownership of copyright where the ownership has changed hands several times, and apparently has been forgotten even by the other owner. Many times even with great effort to establish the owner, it simply can't be found.

Re:Yay!

[VertigoAce]

The objection that the DoJ and other companies have is that Google is being granted a wide license by way of a class action settlement. Normally a company can't make a licensing agreement with all copyright owners without contacting each and every one of them. But since this is a class action settlement, all members of the class are automatically opted in to the agreement. Interestingly, all the publishers who sued Google in the first place have opted out of this particular arrangement (they negotiated better deals with Google). So this settlement is being agreed to by a group of publishers who have nothing to lose.

The only way a competitor could get a similar agreement is by being sued and hoping that a similar settlement is the end result.

The proper way for something like this to occur is for Congress to modify copyright law to allow any company to set up a similar service (potentially with a single entity in charge of distributing royalties and managing any opt-in/opt-out process).

Re:I agree with the DOJ

[Adrian Lopez]

Fair use is defined, and it is not defined to include copying an entire work for your own commercial purposes ...

This is how fair use is defined by copyright law:

Notwithstanding the provisions of sections 17 U.S.C. 106 and 17 U.S.C. 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

As you can see, the law leaves a lot of room for interpretation, and nothing in the above text rules out the possibility of a successful fair use defense when books are scanned for the purpose of making them searchable (not to be confused with making it viewable) online.

Re:Good

[metamatic]

And then there are the situations where the copyright owner is known, but they have no interest in continuing to make the work available because there's insufficient profit in it.

For example, the movies "Spartacus" and "Lawrence of Arabia" were almost lost because the copyright owners decided they weren't worth the expense of maintaining, so they didn't bother to keep copies. And those were both Oscar-winning movies released only 50 years ago. If Columbia and Universal had refused to fund the belated restoration efforts, both movies would have been irretrievable by the time the copyright ran out.