Main Justice is going through the early draft transcripts of today’s hearing in federal court in New York on the Google books deal, and we’ve pulled out some choice snippets:
“To end the suspense, I am not going to rule today,” Judge Denny Chin, of the Southern District of New York, said in his early remarks. “There is just too much to digest. And however I come out, I want to write an opinion that explains my reasoning.”
The court first heard from several supporters of the agreement, then from the settlement’s opponents. The Justice Department followed, and then the parties got in the last word.
• A professor from Howard University School of Law argued that Google’s book project would open up access to books and help level the playing field. The critics’ reliance on copyright law ignored the spirit of the law, Lateef Mtima argued. ”Copyright is intended to be an engine of cultural development, not a brake on it,” she said.
• A lawyer for Sony, which makes digital book readers, argued in favor of the settlement. Janet Cullum, from the law firm Cooley Godward Kronish, said: “The settlement will make available to the consumers a vast quantity of books, including many that would otherwise likely never become available in digital format,” she said. Cullum also said that, if the settlement was approved, the mechanism designed to track down missing rights holders would be effective enough that the problem of works whose copyright holders are unknown would be limited.
• A professor from the University of Michigan who oversees the school’s libraries said the settlement would provide access to titles that might otherwise be forgotten. “The bulk of what I’ve written is now out of print, hard to find and never sold all that well in the first place,” said the University of Michigan’s Paul Courant.
The university spends millions each year maintaining old books that are falling apart, he said, and can’t provide digital access to books without the kind of comprehensive settlement Google is trying to get. “The alternative to the settlement is not a utopia of universal digital access. Rather, it is the status quo under which most of the works of the 20th century simply cannot be legally read in digital form and physical and institutional proximity to great collections is the only effective means of access,” Courant said.
• John Morris from the Center for Democracy and Technology urged the court to approve the settlement, but said that it raised privacy concerns because it would let Google track and monitor what books people read in ways that libraries do not.
Later, responding to similar concerns raised by another speaker, the judge seemed unsure what to make of the argument. “When I order something on Amazon, suddenly I’m getting an e-mail saying if you like that book, you’ll like this one. Is this different? Should I be concerned about these e-mails I’m getting from Amazon about what I’m buying?” he said.
• “It’s not going to be a great library, it’s going to be a great store,” said a children’s book author, who expressed frustration that illustrators had been dropped from the settlement.
• Author and class action lawyer Scott Gant worried about the authors who were a part of the settlement but knew nothing about it. Google estimated there are 174 million works out there. Gant estimated that there are tens of millions of absent class members, and said that Google has reached out to only about 2 million.
• Tom Rubin, Microsoft’s chief intellectual property lawyer, argued that, if the settlement was approved, other companies would be penalized for following the law. Microsoft and other competitors that had tried similar projects scanned only those books they explicitly had permission to scan. “Google by comparison took a short cut by copying anything and everything regardless of copyright status. They’re like a trucking company that instructs its drivers to go 90 miles an hour. It’s not surprising that competing companies that obey the speed limit can’t keep up,” Rubin said.
• Many critics reiterated arguments that Congress and not private parties should deal with the problem of orphan works, and said that the settlement would set a bad precedent for future copyright questions. “If this settlement agreement is approved I think it will encourage Google and possible others to go out and scan lots of other materials and then say, hey, we could litigate about this but it would be expensive and ugly, so why don’t we just reach a deal right now. And I think that would be unfortunate,” said academic Pam Samuelson.
• Gary Reback, the antitrust lawyer leading the charge for Google Books critics with the Open Book Alliance argued that, with the settlement, Google would be the sole supplier for 174 million books. “We didn’t end up with a single seller for those 174 million books, just by chance. We didn’t end up there through some pro-competitive initiative by Google. We got there through concealment and misdirection,” he said.