Our book-scanning lawsuit against Google cleared a major hurdle today, as Judge Denny Chin certified the class of U.S. authors. A copy of the decision is here.
“We’re one big step closer to justice being done for U.S. authors,” said Authors Guild president Scott Turow.
The class of authors includes all U.S. authors and their heirs with a copyright interest in books scanned by Google as part of its Library Project. Google has scanned 12 million books in that project, the majority of which are believed to be protected by copyright. Books from all over the world were copied, but U.S. works predominate.
Google’s liability for copyright infringement has not yet been determined by the court. Google’s primary defense to infringement is that its actions are protected by fair use. Judge Chin is scheduled to hear summary judgment motions on the case in September.
If Google is found liable for infringement, copyright law prescribes statutory damages for willful infringement of not less than $750 and not more than $30,000 per work.
The proposed settlement is a shocking trip through the looking-glass. By allowing Amazon to resume selling most titles at a loss, the Department of Justice will basically prevent traditional bookstores from trying to enter the e-book market, at the same time it drives trade out of those stores and into the proprietary world of the Kindle. The settlement provides a gigantic obstacle to Amazon’s competitors in the e-book business by allowing Amazon to function without making a profit, something that leaves that market forbidding to anyone else who might think of entering, and a bad business for those already there.
This message was just released from John Sargent, CEO of Macmillan, in response to the Department of Justice’s filing of a lawsuit claiming publishers colluded to fix e-book prices.
Dear authors, illustrators and agents:
Today the Department of Justice filed a lawsuit against Macmillan’s US trade publishing operation, charging us with collusion in the implementation of the agency model for e-book pricing. The charge is civil, not criminal. Let me start by saying that Macmillan did not act illegally. Macmillan did not collude.
Here’s some welcome news: Barnes & Noble has agreed to our request to bring Marshall Cavendish children’s books back to their stores’ shelves. By our count, more than 250 authors and 150 illustrators have been affected.
How these books got pulled in the first place is a lesson in how exclusive content agreements have begun balkanizing the book marketplace.
In December, Amazon Publishing purchased Marshall Cavendish’s children’s book list, more than 450 children’s and young adult titles. The next month, Barnes & Noble announced that it would not be stocking any Amazon published titles in its stores. B&N released a statement from Jaime Carey, its chief merchandising officer, saying that it would not stock books published by Amazon, “based on Amazon’s continued push for exclusivity with publishers, agents and the authors they represent.”
Yesterday’s report that the Justice Department may be near filing an antitrust lawsuit against five large trade book publishers and Apple is grim news for everyone who cherishes a rich literary culture.
The Justice Department has been investigating whether those publishers colluded in adopting a new model, pioneered by Apple for its sale of iTunes and apps, for selling e-books. Under that model, Apple simply acts as the publisher’s sales agent, with no authority to discount prices.
We have no way of knowing whether publishers colluded in adopting the agency model for e-book pricing. We do know that collusion wasn’t necessary: given the chance, any rational publisher would have leapt at Apple’s offer and clung to it like a life raft. Amazon was using e-book discounting to destroy bookselling, making it uneconomic for physical bookstores to keep their doors open.
Plaintiffs filed a motion last night asking Judge Baer to rule on the fair use defense in the HathiTrust lawsuit. At issue is a mass book digitization program through which Google converted millions of copyright-protected library books into machine-readable digital files that were duplicated and distributed to university libraries and HathiTrust, an online digital repository.
This is the first motion that squarely places before a court the question of whether the unauthorized mass digitization of library books is a fair use under U.S. law.
Background on the HathiTrust Lawsuit
Authors groups from Australia, Canada, Norway, Sweden, Quebec, the U.K., and the U.S., along with twelve individual authors, brought suit against the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University and HathiTrust last fall. The lawsuit seeks impoundment of the unauthorized scans, pending appropriate Congressional action.
Last June, the University of Michigan, which oversees HathiTrust, announced plans to permit unlimited downloads by its students and faculty members of “orphaned” books (some consider works whose rights-owners cannot be found after a diligent search to be “orphans”). Michigan devised a set of procedures — including a protocol for searching for an author and posting the names of “orphan work candidates” at the HathiTrust website for 90 days – to determine whether it would deem a work an “orphan.” Several other schools joined the project in August.
By Karen Holt
It seems like 2010 all over again this week, as Amazon.com has once more banished thousands of e-books from its site. This time, the books are titles distributed by Independent Publishers Group (IPG), whose president, Mark Suchomel, informed its publishing clients of the move via an email alert sent on Tuesday, February 21st. The story was picked up the next day by Publishers Marketplace.
“Amazon.com is putting pressure on publishers and distributors to change their terms for electronic and print books to be more favorable toward Amazon,” Suchomel wrote. “Our electronic book agreement recently came up for renewal, and Amazon took the opportunity to propose new terms for electronic and print purchases that would have substantially changed your revenue from the sale of both.”
Novelist Ann Patchett discusses the closing of two large bookstores in Nashville, Tennessee, where she lives. She took action, opening Parnassus Books with a business partner in November.
Patchett invites Steve Colbert to compare Parnassus and Amazon for himself when he publishes his next book. Here’s the video clip:
|The Colbert Report||Mon – Thurs 11:30pm / 10:30c|
Our article from two weeks ago, Publishing’s Ecosystem on the Brink: The Backstory, and similar articles spur frequent comments online that Amazon is simply reaping the rewards of its innovation, that its growing dominance of book publishing is merely a demonstration that the free market is functioning as it should. This isn’t really what’s been happening.
Useful innovation should of course be rewarded, but we’ve long had laws in place (limits on the duration and scope of patent protections, antitrust laws, stricter regulation of industries considered natural monopolies) that aim to prevent innovators and others from capturing a market or an industry. There’s good reason for this: those who capture a market tend to be a bit rough on other participants in the market. They also tend to stop innovating.