Law Librarian Blog

Wisconsin-Madison and Texas Amend Google Books Agreements

The terms of the UW-Madison and Texas Google Books agreements reportedly follow along the lines of the University of Michigan's amended Google Books agreement [text] and are contingent upon the Google Books settlement agreement being approved by the court. See Google Book Search Blog post and press releases from UW-Madison and Texas. See also LLB's early post, The Amended Google-Michigan Agreement: Jonathan Band's Guide to the Perplexed. [JH] 

The Amended Google-Michigan Agreement: Jonathan Band's Guide to the Perplexed

Following up on his A Guide for the Perplexed: Libraries and the Google Library Project Settlement, the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries have released Jonathan Band's A Guide for the Perplexed Part II: The Amended Google-Michigan Agreement. [Press Release] The University of Michigan negotiated the amended agreement that will govern the relationship between Google and Michigan and any partner library if the proposed Google Book Search settlement is approved.

Band's analysis of the amended Google-Michigan Agreement highlights rights and responsibilities of Google and participating libraries, including the following:

• Michigan and any partner library can initiate a review of the pricing of the institutional subscription to determine whether the price properly meets the objectives set forth in the settlement agreement.

• Google must provide to partner libraries information on books, such as whether Google is treating the book as in the public domain and whether a book is being excluded from any display uses for editorial or non-editorial reasons.

• Google will provide Michigan with a free institutional subscription for at least 25 years.

• Michigan is permitted to provide digital copies of the public domain books to academic institutions and research or public libraries for non-commercial research, scholarly, or academic purposes, as long as the library uses reasonable efforts to prevent bulk downloads of the copies.

Hat tip to Digital Koans. [JH]

Product Development Thomson West-Style

Update on Rudovsky v. West Publishing Corp.

The Legal Intelligencer's Shannon P. Duffy is reporting that a federal judge has refused to dismiss a defamation suit brought by two law professors who claim that West Publishing harmed their reputations when it falsely identified them as the authors of a poorly researched treatise update. For background, see LLB's earlier post, Cold Comfort for West in "Sham" Treatise Pocket Part Ruling.

According to the product description, The Complete CAN-SPAM Act Practice Guide: Including Regulations, Case Law and Related Statutes (Thomson West, 2008) "provides an in-depth analysis and explanation of the CAN-SPAM Act, implementing regulations, and case law, presented in a clear, well-organized manner. Helpful for both experts and novices, the text will enlighten this complicated area of law. The author's extensive subject knowledge comes from having won the largest damages award ever granted under the CAN-SPAM Act..."

According to Lance Burke's (Reference/Access Services Librarian, Elon School of Law) book review on AALL Spectrum Blog, "if none of your patrons are interested in this field, it is unlikely this book will be the catalyst that sparks their interest." Burke observes that only 91 of the 422 page text contains analysis by the author, Ian C. Ballon. "The longest chapter of the book, and unfortunately, the most tedious" writes Burke, Scope of the Act’s Coverage "discusses what types of businesses and messages are covered under the act.  While this information would be invaluable to someone who was interested in learning if a particular type of business is covered by the act, it does not make for interesting reading."

Sounds like Thomson West took what would have been an OK practitioner article publishable in an ABA journal, added 331 pages of filler  -- the CAN-SPAM Act and regs, state anti-span laws and court documents from one of Ballon’s CAN-SPAM cases -- and slapped on a $79.00 price tag. In other words, nothing new in product development. For a little more on product development Thomson West-style, see the above sidebar. [JH]

DOJ Said to Focus on Google in Book Settlement Investigation

News reports are percolating with the Department of Justice's latest look at the Google book settlement deal.  That's not exactly fresh news.  The whispers, however, from the publishers are that the information the DOJ is gathering focuses on Google rather than them.  

Let me see if I get this straight.  Google began a book digitization program in cooperation with major academic library systems which drew the ire of an organized publishing industry, who sued Google through trade organizations representing publishers and authors.  Microsoft and Amazon had similar scanning programs.  Microsoft's project was aimless, as usual, because of the company's mentality that it had to duplicate Google to be like Google.  Then Microsoft figured out that digitized books were not going to get it search market share and abandoned the project.  Amazon still has its own digitization program where subscribers can peak inside a book and view excerpts before buying it.  Of course, that is in the interest of Amazon as it markets books to its customers.  I don't remember Amazon sharing this electronic content with search engines or anyone not involved with making a sale exclusively through Amazon.  If anything, Amazon gets double use from this content by selling it for its Kindle device.

The publishers and authors and their trade associations sued Google over violation of copyright, including that of out of print or generally books not available in any market save the used book market.  Google's position is that scanning the books does not violate copyright, nor does displaying snippets of these (copyrighted) titles.  It's fair use.  I don't remember much discussion leading up to the suit that Google was using this as a ploy to become a book marketer.  Google, in fact, links current limited and snippet view results to existing booksellers.

Rather than go to trial and decide whether Google's actions are indeed a violation of copyright law, the parties decided to talk settlement and came up with a scheme that turned Google into a distributor/marketer in concert with the publishers, particularly for out of print but in-copyright titles.  There are also provisions for institutional subscriptions for this vast catalog Google has assembled.  

The Justice Department now gets involved because it has a thing about the size and power of Google in the book market, or even generally (just like Microsoft before it).  Assuming the settlement goes forward, Google will have an instant and major presence in the electronic book market.  Here is where it gets dicey for me.  

Is Google's potential market power limited to the electronic book market, or is it measured against the larger market for information in "book" form?  I would argue the latter.  There are plenty of used book stores available where more current and older titles become available.  One can argue that these individual holdings are not aggregated from a single source online.  Still any serious seller of antiquarian books is likely to have an online catalog.  These are aggregated in specialized search engines.  Then there is eBay, which extends the market to books stored in attics and basements.  If someone wants a copy of an out of print book from the 1950s, eBay is the place to look.  Their own used book shop even categorizes by time period.  Though we don't know pricing for individual items, the auction market for physical copies of a title may actually work out to be less expensive than an electronic copy of a book.  Digitized copies can have rights restrictions that physical copies do not have.

One element of the settlement is that authors get a cut of the revenue from the sale of an electronic book.  The first sale doctrine prevents either the publishers or authors from seeing money from eBay or any other physical copy resale outlet.  Some may disagree with the fact that this settlement covers producers who are not part of the suit.  There are opt-out provisions and the court has extended the time for the settlement to go into effect for them to appear.  Either way, this agreement represents a revenue stream that never existed nor could easily come into existence.

If the Justice Department plans on examining this settlement closely, it should also consider the role of the publishers and authors in coming to terms.  The fact that Google was the defendant in this case didn't exactly give it a position of strength in the negotiations.  The publishers set the price for electronic books, which Google may adjust at its own expense.  The publishers and authors have as much to lose if the Justice Department blocks or alters the settlement.  Would going to trial and determining the fair use principle in this case be any less scary?  [MG]

SCOTUS Gives Chrysler Sale to Fiat Green Light; Deal Could Be Closed Today

A day after Justice Ginsburg temporarily halted the sale of the Chrysler’s assets as part of its bankruptcy proceedings, [LLB post] the Supreme Court unanimously denied the bid to block the sale to Fiat yesterday. The unsigned, 2-page per curiam order declined to address the merits of the stay petitions. In Court clears Chrysler sale, without dissent, SCOTUSblog reported yesterday that "[w]ord was circulating in Washington and New York Tuesday night that the Chrysler deal could be wrapped up as early as Wednesday morning, with the electronic transfer of funds to pay Chrysler for most of its existing assets." [JH]

SCOTUS Calls Time Out for Chrysler Sale to Fiat

In a one-sentence order, Justice Ruth Bader Ginsburg said that the rulings of the bankruptcy judge allowing the Chrysler sale “are stayed pending further order of the undersigned or of the court.” According to published reports, SCOTUS delayed the sale of Chrysler's assets to Fiat pending further review of an appeal by three Indiana state pension funds and several consumer groups. Check out SCOTUSblog's insightful post, Ginsburg temporarily blocks Chrysler deal. See also Deal Book's post and the New York Times story, Supreme Court Delays Sale of Chrysler to Fiat. [JH]

Digital Audio Recordings of Chrysler and GM Bankruptcy Proceedings on PACER

The United States Bankruptcy Court for the Southern District of New York is making digital audio recordings of court proceedings relating to Chrysler LLC, 09-50002, and General Motors Corporation, 09-50026, publicly available online on PACER. [JH]

Is the Google Books Settlement Better Than Orphan Works Legislation?

On LibraryLaw Blog, Peter Hirtle says "yes." The in-copyright but out-of-print books whose authors are "inactive rights holders" have been wrongly characterized as "orphan works." This group actually consists of two separate groups.  There are true orphan works whose copyright owners cannot be idetified or located. However, there are also rights holders who could be easily located but who have chosen not to sign up with Google or the Books Rights Registry. "Even with orphan works legislation," Hirtle writes, "these works would not be eligible for inclusion in a digitized books database since they are not true orphans." [JH]

GM Bankruptcy Information Updated

Debtor in Principal Case: General Motors Corporation

Case No.: 09-50026-reg

Venue: Bankr. S.D.N.Y., http://www.nysb.uscourts.gov/

Petition: http://www.scribd.com/doc/15995649/General-Motors-Bankruptcy-Petition

Judge: Bankruptcy Judge Robert E. Gerber

Calendar: In future, but not yet, calendar will be available at http://www.nysb.uscourts.gov/calendars/reg.pdf .

Debtor’s Counsel: Stephen Karotkin, Weil, Gotshal & Manges LLP

PACER: https://ecf.nysb-mega.uscourts.gov/ (Docket & Documents)

Update: Most documents and docket information are available free of charge from the claims agent's website.

GM Press Releases. A GM press release giving an overview of the case is available at http://bit.ly/158rCZ . GM press releases respecting the bankruptcy case are available at http://media.gm.com/ .

Press Conferences Today. “General Motors President and CEO, Fritz Henderson, will host a press conference on Monday, June 1[, 2009,] beginning immediately following President Obama’s media briefing. According to a White House media advisory, President Obama will begin his remarks at approximately 11:55 a.m. ET. Mr. Henderson will address the media separately from New York following the President, beginning at approximately 12:15 p.m. ET.

“The press conference will also be webcast at http://media.gm.com. A replay of the webcast will also be made available for 30 days."

[Robert Richards]

More Kafka Than Kafka: Representing a Gitmo Detainee

The Guantanamo Labyrinth by Tom Hundley, (Chicago Tribune) writes Bob Ambrogi, "is the best description I've read of what it is like to be a lawyer representing a Guantanamo detainee." Highly recommended. [JH]

Does the Google Book Settlement Create an Orphan-Works Monopoly?

Randal C. Picker (Chicago) address three issues that raise antitrust and competition policy concerns in The Google Book Search Settlement: A New Orphan-Works Monopoly? [SSRN]:

First, the agreement calls for Google to act as agent for rights holders in setting the price of online access to consumers.

Second, and much more centrally to the settlement agreement, the opt out class action will make it possible for Google to include orphan works in its book search service

Third, there is a risk that approval by the court of the settlement could cause antitrust immunities to attach to the arrangements created by the settlement agreement.

Hat tip to Christine Corcos (LSU), Media Law Prof Blog. [JH]

What's Your Retainer Agreement Say About Online Research Billing Practices?

The National Law Journal is reporting that a lawsuit has been filed in California state court against Chadbourne & Parke for allegedly overcharging a client for online legal research costs. Waggoner v. Chadbourne & Parke, No. BC408693 (Los Angeles Co., Calif., Super. Ct.). Plaintiff's counsel, Patricia Meyer alleges that the firm pays a flat fee for online serves which should have resulted in a $5,000 bill for costs to her client instead of the $20,000 billed.

There's appears to be nothing wrong with cost-plus billing but the plaintiff, in this case, claims that it is a violation of California ethics rules to charge the higher amount without disclosing the arrangement. According to the National Law Journal interview with Meyer "that many similar lawsuits are in the pipeline, noting that she has amassed evidence that shows at least a dozen other law firms are overcharging clients for legal research, but not telling them." (emphasis added)

It's only "overcharging" if the online billing practice isn't disclosed and time spent performing research by attorneys and law librarians is usually treated as billable hours. Sounds like firms should review and, if necessary, revise their retainer agreements. [JH]

Privacy and Goggle Book Settlement's Institutional Subscription Provisions

The Utility of Google Book Search Debate

Recently, on a mailing list associated with new media transformations, there emerged a debate on the inherent utility of Google Book Search. Involving Paul Duguid (UC Berkeley Information School), Danny Sullivan (Search Engine Land), Tim O’Reilly (O’Reilly Media), and Donald Waters (The Andrew W. Mellon Foundation), the debate drew out many of the tensions of Google Book Search. With the permission of the posters, Brantley has reproduced the debate on Knowledge Rules.

On Everyone a User Account, Peter Brantley raises important privacy issues rising from the Institutional Subscription Terms and Conditions provisions of the Google Book Settlement Agreement. Two snips:

[O]n an institutional basis, including in U.S. government agency subscriptions, it might well be the case that users have to establish Google accounts tied to institution boundaries to provide the kind of auditable transaction record and compliance regime specified by the settlement.  If that is the case, then not only will Google know what I've been reading, and what books I've been searching, but they could well correlate with certainty against my news subscriptions, my Google Map searches ... the list grows long.

...

Many universities have previously turned away from Google Accounts for Higher Ed due to privacy concerns, including concerns relating to liability and identification of responsible parties in cases of private, State, or Federal legal action, including subpoena.  They now face winding up entering an unexpected set of relationships through an institutional license with Google.

For much more, see Brantley's post. [JH]

Pay Student Loans If You Want to Be Admitted to the Bar or Keep Your Law License

FYI 3Ls: Mitchell Rubinstein covers recent court rulings on Adjunct Law Prof Blog. [JH]

Library Associations Have Their Say in Court on Google Book Settlement

The American Library Association (ALA), the Association of College and Research Libraries (ACRL), and the Association of Research Libraries (ARL) has filed a brief as comments in the proposed settlement between Google and publishers and authors.  My initial thought is that the library associations are doing the right thing by raising issues of fairness in pricing, access, security and privacy from the user perspectives, and other egalitarian points in promoting access to the book collection, they forget that this suit against Google was brought mostly for financial reasons by the publisher and author trade associations.  Yes, there is this big chunk of previously unavailable knowledge (or barely available), and this collection represents something unique.  But do these facts transcend the commercial aspects of the settlement between the parties and turn this database into a public service?  I don't think so. 

The comments filing covers the lack of competition aspect, something news reports have suggested that the Department of Justice has interestas well.  Consider, however, that Microsoft tried the same project and gave up, leaving the scanning field completely to Google.  With 9% or so of the search market, Microsoft wasn't going to gain additional share through a book scanning project.  It is true that a worthy competitor wouldn't want to take on Google's head start.  But were there even worthy competitors out there who would commit the funds, equipment, manpower, and legal team to do something like this?  Yahoo never tried.  Other well capitalized technology companies such as IBM weren't interested.  Even West or Lexis never bothered to distribute beyond what was in their own publications.  Librarians have questioned the cost of access to these databases, even at the subsidized institutional prices, though the academic market bears it.  Look at West and Westlaw.  Their vast collection of legal material is locked up by contract exclusively for law schools.  Pity the poor political science or business law faculty member who needs access to a range of cases or statutes.  They have to be content with LexisNexis Academic for that assuming the institution even bothers to buy access.  West via Westlaw does not compete in the broader academic market and they (cheerfully?) have no response to LexisOne.  As for privacy concerns, law librarians have already traveled that path.  Lexis and Westlaw issue passwords to students, staff and faculty.  Can they track what materials are used by the academic community?  We seem to accept that capability in return for buying the service.

Is the market for broader information any different?  I don't know, but I tend to think not.  Publishers and authors want to make money from their works, and see the Google scanning project as an avenue for that end.  The filing by the library associations wants to turn the Google scanning project into a public utility, with regulated rates and oversight.  They point to the section of the Settlement that allows Google to withhold 15% of the total scans and wonder whether the list of titles and the mechanism for withholding them will be made public.  Can they be challenged?  Will countries with different perspectives and agendas pressure Google into suppressing books that go against those agendas?  A library perspective is information for everyone.  An economic perspective suggests information for those with cash.  The majority authors and publishers know where they stand on that one, otherwise why bring a suit at all?  Why not work with Google for the public good?

I think the Court would be wise to take the concerns of the library associations seriously, but within the economic context in which the suit against Google was raised.  In this society economics tends to trump principle.  I believe it would take an act of Congress to do otherwise.  In the previously mentioned concern of other countries suppressing information, Congress held hearings and raked executives through the coals over cooperation with non-democratic governments.  No legislation was passed.  There is no groundswell now to pass legislation that affects search engine business overseas.

In summary, I can agree with the ideas of the library associations in their filing, assuming Google can be characterized somehow as a library.  It is not.  The lawsuit transformed Google into one of the largest electronic bookseller in the world, despite the fact that the source materials came mostly from large academic library collections.  While I can agree with the concerns raised in the brief, I wouldn't put a lot of money on the degree with which they will come to fruition in the final implementation. 

Sorry, I'm just cynical like that. The ARL Press Release on the brief is here.  Another analysis is in Ars Technica.  [MG]

Chrysler Bankruptcy Information

Key documents related to the bankruptcy of U.S. automaker Chrysler LLC will be available free of charge here, a website operated by Epiq Systems, Inc., apparently the claims agent in the case, according to Chrysler's April 30 press release. According to PACER, the case, no. 09-50002-ajg, has been filed in the U.S. Bankruptcy Court of the Southern District of New York, and has been assigned to U.S. Bankruptcy Judge Arthur J. Gonzalez.  According to PACER, debtors' counsel is Corinne Ball of Jones Day.  Documents respecting the case are also available from PACER. Key telephone numbers respecting the case are listed on the bankruptcy court's "Chrysler" page.

The Chrysler Chapter 11 petition is available at Scribd, courtesy of the New York Times's DealBook Blog. [Robert Richards]

Google Books Deadlines Extended; DOJ Antitrust Investigation Begins

In the Google Books settlement, the authors' opt-out deadline and the deadline for objectors and amici to submit their views to the district court have been extended to September 4, 2009, according to an April 28 order issued by U.S. District Judge Denny Chin. The order also postpones the final fairness hearing respecting the proposed settlement agreement to October 7, 2009.  In addition, the U.S. Department of Justice Antitrust Division has begun an investigation respecting the settlement terms, according to Miguel Helft's April 28 article in the New York Times. If the DOJ needs more time to conduct its investigation, further postponement of the final fairness hearing would not be a surprise. [Robert Richards]

Internet Archive's Motion to Intervene in Google Book Settlement Rejected

A federal judge overseeing the Google Book litigation rejected Internet Archive's request to file a motion that would ask the court to alter the proposed settlement to give other companies that have scanned printed books the same copyright protection granted to Google for orphan works. “The proposed interveners are, however, free to file objections to the proposed settlement” according to the ruling. The deadline for filing objections and comments is May 5. Hat tip to Publishers Weekly. [JH]

Samuelson on the Google Book Settlement

Pamela Samuelson, the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, as well as a Director of the Berkeley Center for Law & Technology and an advisor to the Samuelson High Technology Law & Public Policy Clinic at Boalt Hall has uploaded a brief article entited Legally Speaking: The Dead Souls of the Google Booksearch Settlement to SSRN. The article will be published in July 2009 issue of Communications of the ACM. See also Samuelson's guest blog post on O'Reilly Radar (note the comments).

Samuelson argues the proposed settlement of the Authors Guild v. Google lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. Quoting from the abstract, "It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the “dead souls” to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus."

You can also view Samuelson's slide show from her April 14, 2009 OCLC/Kilgour Lecture on the settlement. [JH]

Cold Comfort for West in "Sham" Treatise Pocket Part Ruling

In a federal lawsuit, law profs David Rudovsky (Pennsylvania) and Leonard Sosnov (Widener Law School) claimed that the December 2008 pocket part to their book, Pennsylvania Criminal Procedure -- Law, Commentary and Forms (West Publishing) was so poorly researched that it harmed their reputations because their names were prominently displayed as authors of the pocket part. Late last week, the authors were denied their motion for a preliminary injunction by Judge Fuller of the US District Court for the Eastern District of Pennsylvania because prior to the injunction hearing West Publishing has taken sufficient steps to remedy the situation. [text of Rudovsky v. West Publishing Corp.] From the opinion:

[D]efendants informed their subscribers that the plaintiffs had not had any part in the preparation of the 2008-2009 pocket part, and that the pocket part contained errors and omissions which would be remedied in the subsequent pocket part. Subscribers were also advised, in rather small print, that upon request, they would be given a financial credit against subsequent pocket parts.

Judge Fuller took notice of the quality of the pocket part produced solely by West's editorial staff in these words:

[T]he quality of that particular pocket part was not up to standard. Few, if any, relevant court decisions were included in the publication; and the reader was not informed that some cases cited in earlier volumes had since been reversed or modified.

It sounds about par for the quality of research one would expect from 1L students and should make us all wonder about the quality of work being generated in West's information factory.

All Is Not Lost for the Law Profs. The Legal Intelligencer reports that Thomson-Reuter's spokesperson John Shaughnessy issued a one-line statement that said: "We’re pleased with today’s result" but the ruling may still be a setback for West because Judge Fuller appears to support some of the authors' claims:

On the basis of the evidence thus far available, it seems clear that plaintiffs have established a right to some form of remedy – damages to reputation come to mind – but it would seem that the harm has already been done, and that, if plaintiffs do require further injunctive relief in order to complete their remedy, such relief would be just as effective after final hearing.

Might be time for West to write Rudovsky and Sosnov checks.

What About Base Volume Sales? The law profs may be losing income from lost sales at the moment. I have heard from one Pennsylvanian law librarian that she could not even buy a replacement copy of Pennsylvania Criminal Procedure -- Law, Commentary and Forms base volume from West at this time. Her blood-stained copy (returned from a jail library) is all she has.

Hat tip to The Legal Intelligencer's report on the injunction ruling and Legal Research Plus for a link to its text. [JH]