Thursday, February 18, 2010

Settlement Lawyers Say Real Authors Don't Advocate Fair Use

Today, February 18, 2010, in the US District Court, Southern District of New York, Judge Denny Chin will hear arguments for and against approval of an agreement to settle the lawsuit against Google by a class of book rightsholders formed by the American Association of Publishers and the Author's Guild. The unlikely alliance of publishers, authors, and Google will try to push through a settlement that would provide increased access to millions of books that Google has scanned and digitized in cooperation with libraries.

You can read about the pros and cons, the benefits and controversy of the settlement on a variety of blogs, websites and news outlets, but if you want to read one paragraph (with footnote) from the thousands of pages filed with the court that embodies all the issues, contradictions and complexities of the Google Books Settlement, here it is:
Some object to the entire ASA because it does not ensure that scientific or academic works are freely accessible under “Open Access” principles.    They have claimed that if those works remain unclaimed, then they should be freely made available for use. These arguments run counter to the economic interests of members of the Class.146 That the reading public may wish to have free access to scientific and other academic works covered by the ASA, or that some academic authors may not want to exploit their works through the Revenue Models, should not supersede the economic interests of members of the Class.

146 That the interests motivating these objections runs contrary to the interests of the Class is best illustrated by their preference that Google should prevail on the merits of this litigation. See, e.g., D.I. 336 at 2-­3 (“we believe . . . that scanning books to index them and make snippets available is likely and should be considered fair use”).
This comes from the Supplemental Memorandum Responding to Specific Objections filed by lawyers for the plaintiffs in the case. This 187 page document, available from the Public Index (PDF 856 KB) presents legal arguments countering objections to the agreement filed with the court.  Just in case you've not had a chance to follow all the issues surrounding the case, I'll try to explain some of this crankiness.

In this excerpt, the "some" who object in "D.I. 336" (PDF, 287 KB) to the entire ASA (Amended Settlement Agreement) is Pamela Samuelson, Professor of Law at the University of California. Samuelson writes on behalf of a long list of academic authors, who believe that many absent rightsholders would want their books to be made as freely available as possible, and object to Google's exclusive monetization of those works.

I can speak to this belief from personal experience. My wife's father was a history professor, and wrote a small number of scholarly monographs published by university presses. These monographs, representing a significant part of his life's work, are unavailable to many scholars in his field. If he were still alive, we are sure that he would have wanted his books to be digitized and made freely available. I've advised the family that the Google settlement would allow these works to become much more available, something that would be difficult to acheive without the settlement because we have no documentation of the relevant publication contracts. Nonetheless, my father-in-law's interests would have closely aligned with those of the academics represented by Samuelson, in favor of free access, and siding with Google on the fair use arguments.

A large fraction of book authors write them for reasons other than to profit from book sales, and only a very small number of authors are able to make a living publishing books. In addition to academic authors, who publish to advance their careers, there are authors who publish to advance a political or social agenda, or as a means of personal expression. It seems bizarre to me that the legal representatives of the entire class of authors should just dismiss these motivations as running counter to the "economic interests of members of the Class".

Since the lawsuit is configured as a Class Action, the central issue that Judge Chin must consider is whether all authors and publishers are properly represented by attorneys for the class, and whether the settlement deals fairly with them. The provisions of the settlement are unusually broad, so Judge Chin will need to give detailed scrutiny to the provisions of the settlement which impact some class members differently from others.

It seems to me that footnote 146 argues too much. In attacking Samuelson and the academics she represents for siding with Google on the fair use issue, the footnote undermines the plaintiff's core argument that Boni & Zack LLC and Debevoise & Plimpton LLP, the authors of the Memorandum, are fairly representing their interests in the lawsuit.

At the fairness hearing, I won't expect to hear any new arguments or experience any legal drama (although I expect vitriolic verbal grenades from Lynne Chu). I'll mostly be looking for signs of interest, impatience, or annoyance from Judge Chin.

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