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The Google Book Search Settlement: Some Authors Still Fear It Robs Them of Power at the Bargaining Table

SAN FRANCISCO, May 10, 2010 – Science fiction author Michael Capobianco has spent much of his life writing about the futuristic subject of space exploration – nevertheless he’s not willing to become part of the new world that Google would create with its book search class- action lawsuit settlement agreement.



SAN FRANCISCO, May 10, 2010 – Science fiction author Michael Capobianco has spent much of his life writing about the futuristic subject of space exploration – nevertheless he’s not willing to become part of the new world that Google would create with its book search class- action lawsuit settlement agreement.

““Our primary objection to it is that it’s turning copyright on its head,” says Michael Capobianco, the author of five out-of-print science fiction books. “It’s creating a situation where authors must register to stop Google from doing what they’re going to do … it’ll be a really unfortunate turn of events if that kind of thinking ends up pervading our culture.”

“I’m waiting for the market to mature a bit,” says the author of five out-of-print science fiction books. “This is a priod of transition and it’s just the very beginning of the digital era for books.”

If a federal district court judge in New York approves of a proposed legal settlement between Google and two major U.S. authors’ and publishers’ groups, the search behemoth could become the world’s largest purveyor and custodian of digital books.

Google unveiled its plan to create an online database of “all the world’s books” in 2004. Publishers and authors sued, alleging that the scanning of their books infringed upon their copyrights. Google argued that its project was legal because it only made limited excerpts available to the public.

So far, Google has scanned more than 12 million books from the collections of various academic libraries both in the United States and abroad. As a point of comparison, the Library of Congress, founded in 1800, houses 32 million books.

Under the terms of the settlement, Capobianco would have received 63 percent of any of the revenues that Google would have made from having scanned his five out-of-print (but now digitized) books. Among other things, Google plans on selling subscriptions of its database to libraries, making copyrighted books available for purchase to consumers, and placing advertising against search result snippets of books. Capobianco wouldn’t have to share that revenue with publishers because he made sure that his rights reverted back to him after the books went out of print. (Google’s settlement provisions establishes revenue splits and procedures for authors who haven’t regained exclusive rights to their out-of-print books back from their publishers.)

Right now, anyone wanting to buy any of Capobianco’s books would have to find them second hand in a bookstore. That might change if Capobianco finds another publisher who wants to re-publish his work, or if he manages to publish his work as digital books through, of if he decides to sell them directly through his web site.

The point is, he wants to wait and be the one to decide where and how to publish, and on what terms. Years, ago, for example, he was able to land another publishing deal by agreeing to offer a series of books through a publisher. He was able to include a work that was previously published, but whose rights had reverted back to him. Google’s licenses are not exclusive, but Capobianco is still worried about how their availability as ebooks online might affect his ability to negotiate with publishers in the future. That’s why he has chosen not to participate in the settlement by opting-out. Capobianco is one out of 6,800 authors and their estates who have opted out of the settlement. Other big name authors who have opted out include Jeffrey Archer, Bret Easton Ellis and Ursula LeGuin, among others.

Capobianco is a vice-president of the 1,500-member group the Science Fiction and Fantasy Writers of America, which opposes the settlement — just as two other writers groups do. The groups want Google to obtain permission from individual authors and publishers first before making the books available to the public online. The groups fear that the settlement locks the writers into an agreement that they didn’t ask for, and most don’t understand, and that the settlement overrides the terms of their existing book contracts.

“Our primary objection to it is that it’s turning copyright on its head,” Capobianco says. “It’s creating a situation where authors must register to stop Google from doing what they’re going to do … it’ll be a really unfortunate turn of events if that kind of thinking ends up pervading our culture.”

Copabianco and other panelists will discuss the impact of the Google Book Search Settlement and its implications for the licensing of digital books Tuesday at the Intellectual Property Breakfast Club meeting in Washington, D.C.

Sarah Lai Stirland is the Director of Digital Community at Broadband.Money. Sarah previously worked with Breakfast Media's CEO, Editor and Publisher Drew Clark at National Journal's Technology Daily. She has covered business, technology, government and civic engagement, finance, and telecommunications and tech policy from New York, Washington and San Francisco. Her work has appeared in Personal Democracy Media's Civic Hall, Wired, Red Herring, and She's also a radio and podcast producer, and she's worked at KALW Public radio in San Francisco. She's a native of London and Hong Kong, and is currently based in the Bay Area.

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Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights



Screenshot of Gigi Sohn from Public Knowledge's 20th anniversary event

February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

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In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright



Photo of Tom Goldstein from the Peabody Award used with permission

October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

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Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee



Screenshot of Grammy-winning recording artist Yolanda Adams from the hearing

July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.

The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.

The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.

The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.

However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.

“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”

When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.

Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.

“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”

Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.

“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”

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