Rare Book Monthly

Articles - October - 2009 Issue

Government Calls a Halt to Google Books Settlement

Govtbriefgoogle

The government files a brief opposing the Google Books settlement.


By Michael Stillman

The settlement between Google and groups representing authors and publishers that would allow the internet giant to make the text of out-of-print books available to the public has hit a snag. The settlement has had numerous opponents, including some authors and publishers, various European nations, Google competitors Microsoft, Yahoo and Amazon, certain library groups, and various others. Now add to that one more - the United States Federal Government. The Department of Justice filed an objection with the court just before the deadline of September 21. As a result, the Federal Court in New York hearing this case immediately postponed its final hearing scheduled for October 7. Instead, a status conference is planned for November 6, at which point the parties to the settlement are expected to have made changes needed to address the Department of Justice concerns.

The Open Book Alliance, a group of objectors formed to oppose the Google settlement, wasted no time in declaring the postponement a victory. "This has been seen by many as a clear victory for opponents to the settlement, as it acknowledges that even the parties involved recognize that the settlement, as it's currently written, is dead, and that any chance for revival requires making serious and fundamental changes," the Alliance posted on its website.

The settlement came out of a suit filed against Google by the Authors' Guild and Association of American Publishers. Google has been scanning millions of books from major libraries and making their digital copies available to the public through Google Books. They don't scan in-print books, and they have an unquestioned right to digitize books out of copyright, which includes anything published in America prior to 1923. However, Google had also been digitizing out-of-print books still under copyright protection. Normally the procedure would be to get permission of the copyright holder first. Unfortunately, many of these are so-called "orphan books," books legally under copyright, but the copyright holders cannot readily be found. They may be authors who died years ago, publishers that went out of business long ago. A requirement to first get their permission is tantamount to saying the book can never be digitized, its words unavailable to today's technology. So Google decided to scan first and ask questions later. The authors' and publishers' organizations sued on behalf of the copyright holders and agreed to a settlement whereby their parties would receive 63% of future sales, Google 37%.

This all sounds reasonable enough, but there are some problems. First of all, the government points out, this settlement becomes binding on all members of the "class" (copyright holders) unless those individuals opt out. However, many of those copyright holders aren't aware that their rights under copyright laws are being settled away, and the government does not believe an adequate attempt has been made to notify them. The Justice Department also expressed concerns that the rights of the unknown copyright holders are being represented by the known holders, whose interests may not be the same. Justice says that it "looks forward" to modifications to "minimize this conflict."

Justice's second objection involves potential antitrust issues. The first part of this issue is that prices are fixed through the 63%-37% formula and other factors such as to discourage price competition. The second part is that this settlement applies only to Google, and while it does not bar other would-be scanners from similar agreements, it requires they negotiate them lawfully. However, Google, to obtain this settlement, acted extra-lawfully, that is they violated copyright law by publishing these works, were sued, and then reached a settlement. The best others could hope to do is violate the law themselves and then reach a settlement after they were sued, which the settlement forbids. Additionally, the agreement provides that other scanners could not obtain a settlement with better terms than the one Google received, thereby prohibiting price negotiation.

Rare Book Monthly

  • <b>Swann Auction Galleries Sep 27:</b> Franklin H. Brown, <i>State Sovereignty, National Union,</i> Chicago, 1860. $6,000 to $9,000.
    <b>Swann Auction Galleries Sep 27:</b> Thomas Paine, <i>The American Crisis,</i> Fishkill, NY, December 1776. $25,000 to $35,000.
    <b>Swann Auction Galleries Sep 27:</b><br>The Aitken Bible, Philadelphia, 1781. $20,000 to $30,000.
    <b>Swann Auction Galleries Sep 27:</b> Francisco Loubayssin de Lamarca, probable first edition of the first novel set in the Spanish New World, Paris, 1617. $15,000 to $25,000.
    <b>Swann Auction Galleries Sep 27:</b> Juan de la Anunciación, <i>Sermonario en lengua mexicana,</i> first edition, first book of sermons in Nahuatl, Mexico, 1577. $30,000 to $40,000.
    <b>Swann Auction Galleries Sep 27:</b> Maturino Gilberti, <i>Thesoro spiritual en lengua de Mechuacá,</i> first edition, Mexico, 1558. $15,000 to $25,000.
    <b>Swann Auction Galleries Sep 27:</b> Commission of William O. Stoddard as secretary to the president, signed by Lincoln, Washington, 1861. $7,000 to $10,000.
    <b>Swann Auction Galleries Sep 27:</b> <i>Clay and Frelinghuysen,</i> flag banner, circa 1844. $8,000 to $12,000.
    <b>Swann Auction Galleries Sep 27:</b> Daguerreotype of a man believed to be Frederick Granger Williams Smith, son of Joseph Smith, circa late 1850s. $10,000 to $15,000.
    <b>Swann Auction Galleries Sep 27:</b> John C. Wolfe, <i>Portrait of Abraham Lincoln,</i> oil on board in period wooden frame, circa 1860s. $12,000 to $18,000.
    <b>Swann Auction Galleries Sep 27:</b> Francis W. Winton, manuscript on pow-wows with indigenous Canadians, 1881. $15,000 to $25,000.
    <b>Swann Auction Galleries Sep 27:</b> Family letters from two young daguerreotype artists, 1826-79. $10,000 to $15,000.
  • <b>Leland Little: Important Fall Auction. September 22, 2018</b>
    <b>Leland Little, Sep. 22:</b> Published Half Plate Ambrotype of a North Carolina Confederate Officer. $2,000 to $4,000
    <b>Leland Little, Sep. 22:</b> Two 19th Century Books Pertaining to Canada's Red River Settlement. $400 to $800
    <b>Leland Little, Sep. 22:</b> Two Books With Fore-Edge Paintings of British Architectual Landmarks. $400 to $600
    <b>Leland Little: Important Fall Auction. September 22, 2018</b>
    <b>Leland Little, Sep. 22:</b> Andy Warhol (American, 1928-1987), "Torte a la Dobosch" from <i>Wild Raspberries</i>. $1,000 to $3,000
    <b>Leland Little, Sep. 22:</b> Keith Haring (American, 1958-1990), <i>Pop Shop II,</i> One Plate screenprint in colors, on wove paper, 1998. $8,000 to $12,000
    <b>Leland Little, Sep. 22:</b> Thomas Rowlandson (British, 1756-1827), Twenty-Two Prints from the <i>Tours of Dr. Syntax</i>. $500 to $1,000
  • <b>19th Century Shop:</b> Charles Darwin on sexuality and the transmission of hereditary characteristics: Autograph Letter Signed to Lawson Tait. Down, 17 January [1877].
    <b>19th Century Shop:</b> MILTON, JOHN. <i>Paradise Lost. A Poem written in ten books.</i> London: 1667. A very rare example with the contemporary binding untouched and with a 1667 title page.
    <b>19th Century Shop:</b> Hamilton secures the ratification of the Constitution: <i>The Debates and Proceedings of the Convention of the State of New-York, assembled at Poughkeespsie, on the 17th June, 1788.</i>
    <b>19th Century Shop:</b> The social contract “Man is born free, and everywhere he is in chains”: ROUSSEAU, JEAN-JACQUES. <i>Principes du Droit Politique [Du Contract Social]</i>. Amsterdam: Michel Rey, 1762
    <b>19th Century Shop:</b> “The first English textbook on geometrical land-measurement and surveying”: BENESE, RICHARD. <i>This Boke Sheweth the Maner of Measurynge All Maner of Lande…</i>
  • <b>Bonhams: Exploration and Travel, Featuring Americana, Part I. September 25, 2018</b>
    <b>Bonhams, Sep. 25:</b> Shackleton, Ernest. <i>Aurora Australis.</i> Printed at the sign of 'The Penguins'; East Antarctica, 1908. $70,000 to $100,000
    <b>Bonhams, Sep. 25:</b> Shackleton, Ernest. <i>South Polar Times.</i> 1st edition, limited issue. from the library of Michael Barne. $20,000 to $30,000
    <b>Bonhams, Sep. 25:</b> General Washington's <i>Proceedings of a General Court Martial... of Major General Lee.</i> Philiadelphia, 1778. 100 copies printed for Congress. BOUND WITH: ...Court Martial... of St Clair and ...Schuyler. $25,000 to $35,000
    <b>Bonhams: Exploration and Travel, Featuring Americana, Part I. September 25, 2018</b>
    <b>Bonhams, Sep. 25:</b> <i>The Voice of the People.</i> Boston, 1754. Rare pamphlet on the Excise Tax. Nathaniel Sparhawk's copy. $4,000 to $6,000
    <b>Bonhams, Sep. 25:</b> Autograph Letter Signed ("S.L. Clemens"), offering extensive hard-earned advice on writing, 5 pp, 1881. $30,000 to $50,000
    <b>Bonhams, Sep. 25:</b> After Fra Egnazio Danti. <i>L'Ultime Parti not:e nel Indie Occid:ntli" [The last known parts of the Western Indies].</i> Painted Map of California, Western Mexico, and Japan. $70,000 to $100,000
    <b>Bonhams: Exploration and Travel, Featuring Americana, Part I. September 25, 2018</b>
    <b>Bonhams, Sep. 25:</b> Ptolemaeus, Claudius. <i>Geographie opus nouissima...</i> 1513. The most important edition of Ptolemy, containing the Admiral's Map. $250,000 to $350,000
    <b>Bonhams, Sep. 25:</b> De Arellano, Don Alonso. Manuscript, his <i>"Relación mui singular y circunstanciada... Capitán del Patax San Lucas,"</i> manuscript copy from the Sir Thomas Phillips collection. $50,000 to $80,000
    <b>Bonhams, Sep. 25:</b> Purchas, Samuel. <i>Purchas his Pilgrimes.</i> First edition. With John Simth's engraved map of Virginia. $70,000 to $100,000
    <b>Bonhams: Exploration and Travel, Featuring Americana, Part I. September 25, 2018</b>
    <b>Bonhams, Sep. 25:</b> Lewis, Meriwether. Contemporary manuscript true copy of his final power of attorney, 1809. $8,000 to $12,000
    <b>Bonhams, Sep. 25:</b> <i>A New Method of Macarony Making, as Practiced at Boston in North America.</i> Mezzotint. London, 1774. $5,000 to $7,000
    <b>Bonhams, Sep. 25:</b> <i>Scientific Base Ball Pitching: A Treatise on the Pitcher, Pitching, Origin and Philosophy of the Curve.</i> Chicago, 1897. $2,000 to $3,000

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