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New York Judge Rejects Google Books Settlement

SAN FRANCISCO, March 22, 2011 — A federal judge in New York City has rejected the expansive amended settlement agreement between Google, U.S. authors and publishers more than a year after the court heard from a wide variety of interested parties in hearings on the fairness of the settlement of a class action lawsuit.

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Second Circuit Judge Denny Chin Says The Google Book Settlement Goes Too Far

SAN FRANCISCO, March 22, 2011 — A federal judge in New York City has rejected the expansive amended settlement agreement between Google, U.S. authors and publishers more than a year after the court heard from a wide variety of interested parties in hearings on the fairness of the settlement of a class action lawsuit.

“The question presented is whether is whether the [amended settlement agreement] is fair, adequate, and reasonable. I conclude that it is not,” wrote Second Circuit Judge Denny Chin, who was a federal district court judge for the Southern District of New York when the case landed in his lap.

“While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far,” said in his 46-page opinion. “It would permit this class action — which was brought against defendant Google Inc. (Google) to challenge its scanning of books and display of ‘snippets’ for on-line searching — to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. ”

The judge appeared on first glance to buy a major argument of the opponents of the settlement, namely those made by competitors, and the U.S. Justice Department.

“Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copyright of copyrighted works withgout permission, while releasing claims well beyond those presented in this case.”

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.

If it had been approved, the $125 million settlement would have created the largest collection of online books in the world, and it would have created a book rights registry that authors would have had to opt out of so that their books would not be included for sale through Google’s digital collection.

Many authors had objected to that set-up, instead asking for a system where they would have opted into the agreement instead. They feared that the settlement would have robbed them of bargaining power when it came to renegotiating their rights.

Almost 7,000 authors and their estates had opted out of the Google book settlement. Big name authors include Jeffrey Archer, Bret Easton Ellis and Ursula LeGuin, among others.

Chin suggested in his opinion that that this could be a fix the parties could make to the settlement.

A lawyer for Google said that the company was disappointed with Tuesday’s ruling.

“This is clearly disappointing, but we’ll review the Court’s decision and consider our options,” said Hilary Ware, Google’s managing counsel in a statement. “Like many others, we believe this agreement has the potential to open-up access to millions of books that are currently hard to find in the US today. Regardless of the outcome, we’ll continue to work to make more of the world’s books discoverable online through Google Books and Google eBooks.”

As of last year, Google had 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 amended settlement, some authors might have received a portion of any of the revenues that Google would have made from the scanned books. But others might not have received anything because they’d assigned all their rights to the publishers, or hadn’t negotiated the rights at all.

Among other things, Google had planned 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.

Broadbandbreakfast.com’s Intellectual Property Club held a detailed  discussion about the Google Book Settlement and its impact on authors last May.

You may access it by clicking here, or by simply clicking on the play button below.

The Intellectual Property Breakfast Club With Inaugural Event “The Google Book Search Case and E-Book Licensing” from Broadband Breakfast on Vimeo.

 

Sarah Lai Stirland was Contributing Editor for BroadbandBreakfast.com until April 2011. She has covered business, finance and legal affairs, telecommunications and tech policy for 15 years from New York, Washington and San Francisco. She has written for Red Herring, National Journal's Technology Daily, Portfolio.com and Wired.com. She's a native of London and Hong Kong, and is currently based in San Francisco.

Copyright

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

Derek Shumway

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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

Jericho Casper

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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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Copyright

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

Elijah Labby

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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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