Sunday, August 21, 2011

Re: Google Book Settlement is dead

Posting to Autocat

On 18/08/2011 21:53, MULLEN Allen wrote:
<snip>
Much discussed on Autocat in the past, if somewhat tangential:
http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/48401-second-circuit-rejects-freelance-settlement-.html?utm_source=Publishers+Weekly%27s+PW+Daily&utm_campaign=845ba18c35-UA-15906914-1&utm_medium=email
"New York Law School's James Grimmelmann didn't mince words. "The Google Books settlement-any settlement-is now dead," he noted. "There is no square one: this case is going back to litigation."
</snip>
Thanks for pointing this out. I have spent some time trying to understand (I am not a lawyer), but apparently, people believe that this case, in effect, "kills" the Google Books settlement because this case (i.e. Freelance) is a class action suit brought by freelance authors who sued certain publishers (New York Times etc.) along with certain electronic databases (Ebsco etc.). The authors claimed the publishers were denying them their rights to their own articles that had already been published (and paid for) in print, and that authors needed to be paid for the digitized copies sent to the Ebsco etc. databases. In other words, the authors demanded payment for the copy of their work transferred into an electronic database. This seems to be similar to Google Books in many ways.

The case was dismissed because two of the judges (of three) claimed that the authors in this suit (the plaintiffs) did not really constitute a class. The "class" that was thrown out here seems to be very similar to the "class" in the Google Book settlement, and this seems to be why people consider the Google Books settlement to be dead. Still, I am sure this judgment will be appealed (again!). There is a very interesting dissent by the third judge, stating that they actually did constitute a class. As a result, one person decided.

It is interesting that this case had been argued back in March 2007, and it took over four years to get a verdict! Plus the verdict was not even a real decision: they decided that one of the sides had no status to sue so the entire action was invalid! I am not a lawyer, but it seems that this should have been settled at the very beginning of the case (which is what the dissent appears to say). Finally, class action suits are not very popular in the judiciary right now compared to earlier times (I am thinking of the sex-bias case of Walmart vs. "female Walmart employees" case http://www.claimsjournal.com/news/national/2011/07/27/188742.htm which was rather similar: the Supreme Court ruled that the group of women suing Walmart did not constitute a class and needs to be broken up). It all reminds me of Bleak House.

This does not appear to state that there is a problem with the Google Books project itself, or with anything Google did. It is rather a problem with the *plaintiffs*, who, after this ruling, apparently will not constitute a "class" in their class action suit against Google. If it is upheld, it very well may kill the Google Books settlement because there is no valid group with which to have a settlement, and it will be difficult to see how anything can go forward. Consequently, this is one of those complex rulings that resolves nothing and stops anything positive from happening. This, in spite of the fact that everyone agrees that making these texts available would help the entire society.

With materials that are already on the web, everything is different since if Google had to get prior permission from each and every website before they could crawl any content, the web would be impossible to use. We see the value of the opt-out option very clearly, since on the web, there is the very effective opt-out that people are expected to use if they wish (the "robots.txt disallow"). Naturally, not to allow search engines to index your site necessarily hides it from 99.99% of people in the world and most authors do not want that. Thank goodness the same rulings do not apply on the web, since otherwise everything would be at a standstill!

But of course, I may be wrong in all of this....

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