Thursday, September 3, 2009

Opposition Growing Against Google Book Settlement

On September 1st, Germany became the first foreign government to ask a U.S. court to block the Google Book Settlement, the deal done by Google Inc. with authors and publishers that allows Google to, retroactively and in the future, scan and profit from old books and publications that may be copyrighted, out-of-print or orphaned works.

(Part of the Google Book Settlement calls for Google to pay $34.5 million to establish a rights registry.)

In an amicus brief filed with the U.S. Federal Court in Manhattan, Berlin says the settlement would deprive German and other non-American authors of their copyright ownership rights while providing Google a de facto monopoly over Internet and digital dissemination of these text-based creative works. The brief says the Google Book Settlement would “irrevocably” weaken global copyright law.

The Germans are not alone. Opposition to the Google Book Settlement which was announced 10 months ago is growing. Equally important, its outcome will indirectly impact efforts to pass Orphan Works Legislation, which is waiting in the wings.

In a court filing the next day, September 2nd, The American Society of Media Photographers (ASMP) objected to photographer exclusion in the $125 million Google Book Settlement. They were joined by the Graphic Artists Guild (GAG), the Picture Archive Council of America (PACA), the North American Nature Photography Association (NANPA), and several prominent individual photographers. ASMP Executive Director Eugene Mopsik said, "ASMP believes that the proposed settlement has far-reaching consequences for the work product and livelihoods of creators of visual images. Through this filing, we hope to stop a settlement that would hurt our members and those of our sister organizations, and to participate in obtaining a fair and equitable solution."

Microsoft, Yahoo and Amazon are spearheading the Open Book Alliance, formed in August to rally opposition to the Google Book Settlement. The Internet Archive, American Society of Journalists and Authors, The New York Library Association, The Science Fiction and Fantasy Writers of America have also joined this opposition., which has its Kindle e-book reader, has filed a 41-page brief with U.S. District Judge Denny Chin (the judge who will approve or deny the Google Book Settlement sometime this Fall) that warns that Google will stifle competition and price gouge if the deal goes through.

The U.S. Justice Department is also taking a closer look at the Google Book Settlement because it could possibly violate U.S. laws that inhibit monopolies, predatory pricing or competition. The Justice Department will voice its opinions by September 18th.

And, the most intriguing tidbit (and perhaps the most revealing, speculatively speaking) is that Alexander Macgillivray, Google's former Deputy General Counsel for Products and Intellectual Property who was the key counsel who put together the Google Book Settlement, left Google in July and joined Twitter. Why would Google's lead attorney on the project jump ship shortly before the successful completion of what would surely be a huge career high point?

If the Google Book Settlement is not approved by Judge Chin, this will almost certainly result in Google increasing its efforts to get Orphan Works Act legislation passed in the U.S. Congress. While Google Book Settlement is of great concern to authors and publishers of text, it does not impact photography, in general. The significance of all this is that photographers, stock photo agencies and rights holders in the photographic community need to get their eye back on the ball and accelerate building defenses to the theft of images in general and to The Orphan Works Act in particular. Registration of images at The Copyright Registry, which now stands at about 2.9 million images registered, is one defense.

Orphan Works Legislation is most assuredly going to resurface, despite the claims of Orphan Works supporters who want creators to believe it is "dead". Now is the time to take action that will counter the effects of the Orphan Works Act when it passes. Don't wait for the flood to crest before beginning to fill sand bags. Besides, participants in The Copyright Registry gain the greatest value right now, today, while statutory damages are still in full effect. Every copy of your images can link back to you and your web site, including from the stolen, altered and uncredited copies that creators don't even know exist. (See how The Copyright Registry works.) This flurry of activity on the Google Book Settlement is a warning sign for the photo community to begin putting in place the defenses and monetization methods necessary to reclaim at least some of the value of all the stolen intellectual property online, which is increasing at an alarming rate.

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