Braille Monitor                                                   April 2010

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The Blind Comment on Fairness of Proposed Google Settlement

by Daniel B. Frye

Marc MaurerOver fifty Federationists traveled from states along the East Coast on Thursday, February 18, to support NFB President Marc Maurer as he spoke in favor of the fairness of the proposed settlement between Google and author representatives, who have reached resolution of a lawsuit that requires court approval. The initial dispute stemmed from Google's efforts to digitize the library collection at the University of Michigan and elsewhere with the goal of creating the world's largest digital library and bookstore. Blind consumers, heartened by the fact that the proposed settlement contains far-reaching provisions guaranteeing blind people’s access to the digitized documents that Google processes, have rallied in support of this agreement since last summer. The agreement promises eventually to make at least ten million books available to our community, a record volume of accessible material that will help to level the information playing field between sighted and blind people. (See initial coverage of this story in the August/September and November 2009 issues of the Braille Monitor.)

In fairness to the almost twenty individuals and organizations invited to register their objections to the settlement during this hearing, none opposed the tentative agreement based on its accessibility provisions. Instead their objections involved concerns about deprivation of intellectual property and copyright entitlements, based on the default, opt-out structure of the proposed settlement. Issues of privacy; federally prohibited monopolies; judicial authority to interpret and change copyright law substantially; and compliance with class-action processes, including concerns about adequate notice and international language accessibility of the proposed agreement dominated the detractors' list of grievances. Conversely, supporters of the agreement focused on the value of returning millions of hard-to-get books to the reach of the general public; the sociological advantages that the copyright law originally envisioned; and the argument, advanced by some, that adoption of the settlement would result in competitive benefits.

Judge Chin declined during the hearing to rule on the fairness question, a preliminary finding that must be made before the settlement can go forward, citing the amount of material and the complexity of the issues. No deadline has been announced for completion of his deliberation. He noted that the case attracted so much interest that an overflow courtroom had been assigned to accommodate the public. Judge Chin specifically observed the conspicuous presence of members of the National Federation of the Blind. Our presence and President Maurer's remarks were also referred to in many press accounts of the hearing. The following February 18, 2010, New York Times article is representative of the coverage of the hearing and our involvement. Here it is:


Judge Hears Arguments on Google Book Settlement
by Motoko Rich

The federal judge overseeing the proposed settlement of a class-action lawsuit filed against Google by groups representing authors and publishers heard from a handful of supporters and a parade of objectors to the deal at a hearing Thursday in Manhattan. At the beginning of more than four hours of testimony in a packed courtroom, Judge Denny Chin of the Federal District Court for the Southern District of New York said he would not rule immediately on the settlement because there was “just too much to digest.”

Among the supporters of the deal, which would allow Google to create an extensive digital library and bookstore, were the president of the National Federation of the Blind, the librarian of the University of Michigan, and a lawyer for Sony Electronics, all of whom said that the agreement would make millions of hard-to-find books available to a vast audience. Opponents—who cited various concerns relating to competition, privacy, abuse of the class-action process, and the violation of copyright—included lawyers for rivals Amazon.com and Microsoft, representatives of various authors and estates, literary agents, and speakers representing Pennsylvania and Germany.

William F. Cavanaugh, a deputy assistant attorney general with the Justice Department, reiterated points the department made in a filing this month that raised legal objections to the agreement. Mr. Cavanaugh said the Justice Department was continuing its antitrust investigation into the settlement. While saying that the department “applauds the benefits of mass digitization,” Mr. Cavanaugh said that “our concern is that this is not the appropriate vehicle to achieve these objectives.”

The settlement, originally announced in October 2008, arose out of a copyright infringement suit brought by the Authors Guild and the Association of American Publishers against Google, which had been scanning millions of books from libraries. The complex agreement outlined a plan that would allow Google to make the scanned books available online for searching, as well as create new ways for authors and publishers to earn money from digital editions of works that had long been off the market in print form.

Speaking in support of the settlement, Lateef Mtima, director of the Institute of Intellectual Property and Social Justice at Howard University, said the settlement would aid in the “development of a thriving, vibrant culture.” But because the settlement would allow Google to scan and profit from copyright-protected books without the explicit permission of individual authors, the deal generated a litany of complaints. Critics also pointed out that Google would have the right to scan and sell so-called orphan works, those whose authors could not be found or whose rights owners could not be identified.

“You can’t settle a claim for copyright infringement by authorizing the miscreant to continue to infringe copyright,” said Hadrian Katz, a lawyer for the Internet Archive, a nonprofit group that is scanning books for its own digitization project. Mr. Katz, along with the Justice Department and several other objectors, suggested that Google and its partners amend the settlement to require that authors choose to participate. Daralyn J. Durie, a lawyer for Google, said the deal was fair because it compensated authors and publishers for any works sold through Google. She said it would be prohibitively expensive to track down millions of authors and negotiate individual deals to display or sell their works digitally. Michael J. Boni, a lawyer for the Authors Guild, said that a rights registry that would be set up as part of the settlement would make every effort to find authors of orphan works.

 

There you have the report of the New York Times on the day's events. Here are the remarks that President Maurer delivered:


I am Marc Maurer, president of the National Federation of the Blind. The organization, which came into being seventy years ago, is composed of more than fifty thousand members from throughout the United States. Our goal is to create a climate in which the blind may be integrated within society on the basis of equality with the sighted.

The National Federation of the Blind strongly supports the proposed settlement in this case. We have heard arguments suggesting that problems exist with the proposal. However, we also understand that, within a specified time after the proposal becomes final, the books covered by it are to be available to the blind in a usable format. Estimates of the number of these books vary, but we are led to believe that ten million is not unreasonable to expect.

Blind people spend enormous amounts of time and energy hunting for ways to get at books. A few commercial establishments exist that provide recorded information that the blind and sighted can buy—mostly recent best sellers, often abridged. Three substantial specialized libraries for the blind have been created in the United States: the Library of Congress National Library Service for the Blind and Physically Handicapped, which began producing books in Braille and in audio formats in the early 1930s; Bookshare, which has recently begun to collect electronic files of books created for blind college students; and Recording for the Blind and Dyslexic, which began recording college texts in the 1940s. The total number of unduplicated titles available from these libraries is under one million. No other substantial sources of reading matter exist for the blind in the United States. Audible tells us it has sixty thousand, but Google offers ten million. The excitement of the potential to gain access to this much information is almost palpable.

Digital books are quickly becoming the norm. This should be good news for the blind. Digital information can easily be presented in auditory, large-print, or refreshable Braille formats. However, despite the simplicity of building accessibility provisions into digital management products, many of the manufacturers of the technology have refused to consider doing so. On the other hand Google will give us access to ten million books. In the process of doing this, Google will help to make the point that access to information for all is achievable and desirable.

A number of universities have established programs to offer students and professors digital books, which are often cheaper than those produced in print. Similar proposals have been made about elementary and secondary schools.

The Apple iPhone, the Apple iPad, and the Apple iTunes U application have auditory systems built into them that the blind can use, but some publishers have declared that the books loaded on such devices will not be allowed to be hearable. The blind have access to the machines but not the content.

We believe that access to the storehouse of ideas, books, is essential for participation in a free society. The ability to think, to write, to invent, and to create opportunity expands in the presence of the writings of others. If our talents are to be used, we must be able to read. Thank you, Your Honor.

 

President Maurer convincingly made our direct argument for access to information. We now print the supporting testimony of Lateef Mtima, director of the Institute for Intellectual Property and Social Justice and professor of law at Howard University, School of Law. Professor Mtima's remarks parallel our views on the social value of access to information. His statement reflects an allied spirit with the NFB and resonates with the passion of a great advocate of civil rights. The brackets in Professor Mtima’s testimony are his. Here is the full text of his remarks; Professor Mtima cautioned that time constraints prohibited him from delivering these comments verbatim to the court:

 

My name is Lateef Mtima, and I am the founder and director of the Institute for Intellectual Property and Social Justice and also professor of law at the Howard University, School of Law. I would like to thank the court for this opportunity to address the issues before the court and hopefully assist in placing proper emphasis upon the copyright social utility obligations that are at stake in this dispute.

"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities…and is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing [her] for later professional training, and in helping [her] to adjust normally to [her] environment. In these days it is doubtful that any child may reasonably be expected to succeed in life if [she] is denied the opportunity of an education. Such an opportunity, [when made available] must be made available to all on equal terms."

The significance of these concerns to the issues currently before the court is of course clear, since universal access to books will help to level the playing field of access to information, knowledge, and education. But what may come as a surprise is that these statements were neither made in connection with mass digitization of text, nor were they made by an educator, an academic, or even a social scientist. These words were written by Chief Justice Earl Warren in the landmark opinion of Brown v Board of Education in 1954. The fact that these words resonate with the present issue reminds us of the primary purpose of the copyright law.

The first American copyright law, enacted by the first Congress as the 1790 Copyright Act, was entitled “An Act for the Encouragement of Learning.” To the extent that significant segments of the population lack equal access to copyrighted works, however, they are unable to learn from and build upon these works and, in turn, make their own contributions to American culture.

The development of digital information technology offers great promise for the social utility goals of the copyright law as well as the aspirations enunciated in Brown, but while technology has dramatically increased the availability of literature, art, music, and information for some Americans, the poor, the elderly, the physically challenged, and many racial and ethnic minorities, stranded on the wrong side of a growing digital divide, have instead witnessed a return to the separate and decidedly unequal society of the pre-Brown era.

Whereas virtually all commentators agree that mass digitization of books is a necessary step toward satisfaction of the mandates of copyright social utility, objections have been raised to the Google initiative. Two important objections are (1) that it undermines the author permission function of the copyright law, and (2) that the benefits it seeks to achieve are best left to government.

The first objection distorts the constitutional balance between author incentives and the public interest. While American copyright is in some ways an author-centered, permission-based system, author property interests are neither inviolable nor even paramount. Unlike European systems, American copyright is not based upon natural rights but rather is positive social law. American copyright favors neither the author nor the individual user of aesthetic works, but rather holds paramount the interests of society in developing a thriving, vibrant culture. As the United States Supreme Court observed in Sony Corp. of America v. Universal City Studios Inc.:

“The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved…. private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts…. `The sole interest of the United States and the primary object in conferring the monopoly,'…`lie in the general benefits derived by the public from the labors of authors.'”

The eminent copyright scholar, the late L. Ray Patterson, cautioned that our copyright law is regulatory in nature [protecting the public interest with rules to accommodate the interests of authors, entrepreneurs, and users in a complementary way] and not proprietary, as a proprietary model can all too quickly become a device to inhibit learning rather than to promote it.

Now that mechanisms have been included in the Google initiative that address author proprietary interests, the copyright balance requires that the emphasis be shifted toward the public benefit generally and, in particular, the needs of that segment of the public that has been largely overlooked, including that of marginalized authors, as well as underserved users of copyrighted works.

This brings us to the second objection: that the balance should be achieved by Congress. First, this argument overlooks that the courts can and have addressed this kind of “new technological use problem” in the past, in cases such as Whitehall Music, the cable cases in Fortnightly and Teleprompter, Sony, and, in the digital information context, Kelly v. Arriba, etc.

Second, there is precedent for private initiatives, such as the royalty collection societies created with the advent of sound recordings, which have flourished for one hundred years, strengthened by judicial and legislative involvement.

Finally, it is the fact that many governmental and even scholarly institutions have been slow to recognize the digital divide as a problem of copyright social utility that brings us to where we are. Now that a meaningful mechanism for bridging the digital divide has been presented from the private sector, it would be unfair to stop the clock after the digitally disenfranchised have been overlooked for almost a quarter of a century.

We recognize that the proposed settlement will not cure all the deficiencies of the digital divide. But to those who say that this will provide only trivial improvement, we suggest that they may be unfamiliar with what the disenfranchised and marginalized can do with only a little. Give a slave pig intestines and she will make chitterlings; secretly provide Frederick Douglass a few books, and he will provide our nation with insight into its character; literally toss George Washington Carver peanuts, and he will produce scientific and industrial marvels from which we can benefit for generations.

I’d like to close with this final thought. Be it the heartland of the Midwest, the rural South, or the urban inner city, equal access to libraries makes the difference; and, having traveled that path from 1960’s Harlem to some of our nation’s elite institutions of higher learning, I have witnessed that difference firsthand.

In drafting the Copyright Clause, our constitution’s framers penned a broad directive of social utility, one amenable, not only to legislative and judicial interpretation and application, but also to private initiative and adaptation to the changing realities of our evolving national culture. Copyright is intended to be an engine of cultural development, not a brake on it. We have an opportunity to take an important step on behalf of copyright in the digital information age, and it is one that can’t afford to be missed.

Once again, we’d like to thank the court for this opportunity to appear before it.

Time will tell whether Judge Chin allows this version of the Google settlement to go forward, but when it is ultimately approved in some version, blind Americans will have unprecedented access to the written word. We will be able to say that the National Federation of the Blind played an active role in bringing this reality to fruition. The Braille Monitor will keep readers apprised of the status of this ongoing legal saga.

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