The Text

 Bibliothèque Sainte-Geneviève, Paris

REV. 3/12/2013  

There are the 48 pages of Judge Chin's ruling. They are really are junior high school essay pages; that is the time when kids all over America find that with triple spacing, wide margins and a couple of pages of appendix, a fifty page paper is tantalizingly close.

In short, the ruling is barely twenty actual  pages, less in Prof. Grimmelmann's estimate. This is not really a defect, were it not that the number of pages somehow count in the strange world of the law and law reporting. Judge Chin mentions that the ASA is 160 pages long?! Divide by 2 and subtract 15.

So let us concentrate on the topic paragraphs, some 22 lines comprising the first full page of running text of which I will not quote the technical header. The text is easy to download. [Note: We are no longer in the age of the footnote. The original texts for quotations can be found by marking the text and pasting it into a Google window e.g. "question presented is whether the ASA is fair" - among the hits will be the text of the ruling.]

"The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action -- which was brought against defendant Google Inc. ("Google") to challenge its scanning of books and display of "snippets" for on-line searching -- to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied." [Chin Opinion, March 2011]

The first two lines (sentences) state that the proposed agreement is neither fair, adequate, nor reasonable, that is to say, not fair, not adequate, not reasonable.

Clear enough if one understand the code hidden in the lexical items fair, adequate, and reasonable. Our hermeneutic cannot reach that far into the viscous psyche of the law. Something about the 23rd Rule of Acquisition.

The next sentence is written in actual normal English. Despite benefits, the proposed settlement would "go too far." Clear enough, although "benefit to many" is really an understatement of such a dimension, that one can only wonder if there is any trickle of information from real-world to legal-world. Think an electronic lending library of 12 million books and counting available world-wide - a bit of benefit all right.

In the next sentence my hermeneutic feelers are tingling as "too far" is defined. The proposed settlement would allow "Google" significant rights to exploit "whole books." The distinction here is obvious in legal logic but would bring forth the red pen in the hand of any English teacher. First, why use the term "exploit" when any number of other words would give a much better feel for what Google is doing with electronic text. Google is never going to "exploit" a file to my laptop. Let the spinning begin.

In a parenthetical phrase of said sentence, Judge Chin informs us that the original case was brought to contest the quoting of snippets.

If I am allowed to speak parenthetically myself, this is really an uncontested lay-up. Legally speaking, anyone can quote snippets, legally. In an academic context, one can quote a snippet as long as it is marked and it is clear where the snippet originates.

Now there are minor quibbles since the law encourages dialectic thinking. For example, one person is upset because the Google system serves many snippets of a book to many people. One could imagine that over time the entire book will have been served, each of the several thousand recipient of snippets, having only received snippets; collectively, however, they have been served the whole book and sections of the book, repeatedly. Is law funny, or what?

The main quibble, however is that Google should not even have put itself in a position to deliver snippets - this from the squatters on rights without tangible value. The irony here is that by scanning, their rights have accrued value - without scanning their right are not worth even mentioning, are figments of the imagination. The law is a hoot and a holler.

The argument here is that a case challenging the quotation of snippets cannot bring forth a settlement allowing the delivery of entire books. To make the legalism seem more convincing the distinction of "quoting snippets" is juxtaposed to "selling books" by our judge.

A new argument has intruded. It cannot be that Google was sued for delivering snippets. Since that is perfectly legal, no court would institute a proceeding, and no prosecutor would prosecute delivering snippets. That would be a waste of time. So Google was actually sued for "scanning." There are hints of that in the text. If the crime Google committed was scanning whole books, if that is, was, what the court would like to sanction, then surely the question should turn around the scanning of whole books. To sue for delivering snippets would be bad faith, legally speaking. It would be like suing someone for driving a car - not illegal - when they actually should have been sued for stealing the car - quite illegal.

The judge turns frequently to the notion of "selling books." This may be a pretty strong argument in legal-world, it seems weird in real-world. In real-world one could imagine a case where all the books that were printed of a specific title have either been sold or taken to the dump, period. That is why the book is called out-of-print. It could also be called not-to-be-sold-ever-again or off-the-market or commercially-dead-as-a-door-nail. That book will not be sold again - all expectations of royalties for an out-of-print book have expired in the mind of the author and the publisher, else it would have been reprinted or a new edition published.

For that matter, what is to prevent an author-publisher, at this late date from putting out an electronic edition and test the market. Yea, what market? Is Judge Chin protecting a phantom future market?

Getting a pdf of a book that will never be sold (except for two dollars as used) onto my laptop screen is not really a sale, arguably. Confusing that electronic transfer of a commercially dead artifact with a "sale" for money, is simply applying principles of commercial law, which regulate the transfer of things "tangible in space" such as a printed book or things of "tangible value" such as a Kindle edition, erroneously. Scanning libraries and charging a fee for transferring the books to the screen, as per settlement, merely covers the overhead of production, storage and dissemination which includes a fee to the original producers of the "thing, tangible in space" that is no longer for sale. It covers the expense of administering and distributing that fee. Does the judge suspect there is a better deal out there, anon?

Let us consider. Defendant scans 12 million books and starts quoting snippets of some of them. Of others, the authors have agreed to allow displaying the whole book, while still others, books in the public domain, are also displayed in their entirety. For books delivered as a whole (on the basis of a search of the comprehensive index), the list of hits of the keywords in context, e.g. the snippets, are actually clickable links that take the user to the lines on the actual full page of the book. Nobody would be satisfied with only the snippets - duhh.

By the same token, I am not necessarily interested in "reading" the whole book or owning the book, any more than I would steal the physical copy from the library so I can "own" it when 10 minutes with the book in the stacks and a few pictures of pages taken with my smart phone is all that I need.

Here is the flow:

1. I have submitted a query in a Google window, two or three key-words;
2. I get a list of books deemed relevant to my query by the algorithm;
3. I inspect the hits (the books) and am taken to a list of snippets for each, one book at a time ;

[4. I click through to the relevant page containing a snippet and read on to the next page or back to the previous till I have understood what the author is saying about the search term.]

To stop at step three is absurd. Yet so it is. Is anyone from USDC listening.

Even if I search for and find a specific book, chances are I will not want to read the whole thing; I may want to consult the index and browse relevant chapters. I also would like to place the book on my bookshelf in the cloud [read: in my Google Book Search account], just as I put a many books on my carrel when I was in graduate school. It is troubling and puzzling that Judge Chin would default to the concept of "sale." I have a "concern" with that.

A "reasonable man" could thus conclude that the display of whole books was the purpose of scanning the 12 million whole books. Displaying snippets was merely a temporary solution, quite legal under existing protections, until a deal could be worked out, while the index could be tested and improved. The index will stand, whatever happens, even if users have to go to Ann Arbor or Stanford to read the text on the pages with the snippets. Consider that a mere proposal under a restraining order would not have been taken seriously and would not have made the cost of litigation seem worth while. The books  had to be scanned, else there would have been nothing to settle. The books simply had to be scanned or we could have forgotten the whole thing and Prof. Darnton could have enjoyed his tenure as Director of HUL sitting in his stuffed chair taking notes on Voltaire instead of arguing with lawyers.

If we were to wait until five million people were to meet at the Utah Salt Flats to agree to the wording and then to sign a licensing form, the sun will have gone red giant. Scanning to deliver snippets and above all, scanning to create the index should be legitimate, legal activities, since they are activities profoundly important and indispensable for research of all kinds. The law should find some path through its warrens to make this OK.

Even just cursory use of the "snippet view" in Google Book Search would make clear that no rights of copyright holders are violated. For a single search term, no more than three lines of text are presented. The only use, really of the snippet view is to help one to decide whether to get up, driver to campus and get the book from the library or not (or to find it on abe.com). In many cases, the snippet view is so unhelpful that one may not get any real idea about the nature of the book. Given the spotty OCR, only a percentage of the actual snippets are actually delivered. If I cannot see the table of contents and the index, I might well not bother to find the book.

This argument could be buttressed by a further point. The bookseller Amazon allows much larger snippets, not of 50 year old out-of-print relics, but of active current publications, currently on the market, generating revenue. In the Amazon system, runs of pages up to five or eight can be read, as can the entire table of contents. A random number generator determines which pages are hidden. Each launch of the viewer generates different hidden pages. Thus, it is possible to see an entire run of pages that is of interest. I am sure I am not the only one who has figured this out; I hope Amazon will continue to reseed the random number generator. It is even possible to print out page runs with a little virtuosity. Amazon is betting that most users will just buy the book rather than scam the viewer. Amazon has made a reasonable real-world business decision that could be a model for what is considered "reasonable" in legal-world of Rule 23.

Alas, Judge Chin is not a user, obviously, but he knows the legal difference difference between a snippet and a whole book. Bravo. Of course that distinction has not really changed since snippets were once called quotations and typed on a typewriter. The law could not really anticipate that snippets of a book from Stanford Library could be sent to my computer in North Carolina based on a Google query in 2 seconds.

Amazon authors, real ones with bank routing numbers, have given users significant rights to read significant portions of the latest new stuff for free, in order to lure them into buying their currently in-print books. What standard of significance would Judge Chin allow for an orphaned book published in 1960 - fifty years ago - or one published before the Second World War - five lines? Were it possible to buy the 50 year old book, I might even agree. Since the book is not to be gotten except by taking it off the library shelf somewhere, could we not come up with some legal logic that would allow the transfer of the file from Google's computer to mine, for a reasonable fee to cover everybody's troubles, including the heirs of the author into the third generation? Could we pretend that Google is merely acting as an agent for libraries, and that it is really the library that scanned the book that is delivering a copy to my laptop to spare me the trouble of getting out of my chair and spare them the expense of servicing customers unnecessarily. After all, I am not getting a brand new book - I am getting an often quite poor scan, missing folded pages and maps and worse OCR, deficiencies that I may still have to repair with a trip to the library. Could we have the book delete itself according to my borrowing privileges? Could we delete it if I have not looked at it for 4 weeks; that is the fate of many library books, they are returned unread.

There is something else that would make the English teacher put a big question mark next to the second paragraph. There is mention only of Google being granted rights. There is no mention of any number of authors and publishers who would be granted a revenue stream.  The implication, through lack of words of explanation and wildly counter factual at that, is that all books covered by the settlement would deprive impecunious authors of their rights, and that they can watch with long faces as gold coins meant for them end up in Uncle Dagobert Google's money bunker. Again, one would caution a student to mention the other side of the agreement. In real-world, an agreement is between two parties. In legal world, only one party seems to count, the party that has been sued, it seems. Only the party that has raised "concern" on the media all-star ballot is mentioned. That seem strange to one from real-world, since one could imagine that the plaintiffs would want to gain something, to have something placed into the world that is not that different from what the defendant wants, hence they sued and have tried to settle for five years, a portion of that time belonging to USDC NYSD. Why are they not mentioned? Is the assumption that Google is trying to wiggle out of a crime and must be stopped?

The real agenda is to be found in the last four lines of the second paragraph. With a highly rhetorical "indeed" Judge Chin bares his claws. Google is not to be rewarded for "wholesale scanning" - Google is in fact to be punished for wholesale scanning, even if only snippets were ever displayed while the scanning was done and thus staying within the letter and spirit of the law, arguably.

If opinions were a chess game, this opinion would have to search for a weak opponent. The Judge makes a big to do about the question at hand, snippets. The whole thing is about not having the settlement reach beyond snippets and expanding claims or whatever. Yet Google is to be punished for "wholesale scanning." In this context the word "wholesale" is unfortunate and points to a fuzzy understanding, or better an attempt to fuzz up understanding. Say what it is: scanning whole books. And then do not stand behind Rule 23. Say: "the litigation has always been about scanning whole books" and "the settlement has always been about delivering whole books." Of course, for the law, "time on the clock" is not wasted, legally speaking.

The impulse to "punish" Google is a widespread thought pattern that, in its mild form, manifests itself in an "expression of concern about Google" accompanied by an appropriate rolling of the eyes. Of course that expression of "concern" is generally interrupted every day by the gleeful and gratis use of Google programs.

There are two more items of "concern" in addition to the desire to punish Google's initiative, the most amazing initiative in the history of books, an initiative so profound that it would take a concerted effort by many untalented, self-satisfied monopolists, many uninspired envious persons, many authors and author's heirs who simply don't understand the importance of the index and a major Grinch sitting on the bench, to drive this initiative from the world. But don't get me started.

The next item of concern is "concern" for the "competitors" over which Google would gain a decided advantage. So who are these competitors? Well, there is Microsoft - which decided to pull the plug on its competitive project. It seems it was not thought commercially feasible. That would, if you follow me here, according to the Microsoft analysis, make the Google project pure philanthropy. In the eyes of Steve Balmer, money spent scanning books is money that could be used to strengthen the Windows monopoly, is money grotesquely wasted. Perhaps that is a bit harsh given Bill Gates' philanthropic activity. Personally I would like to be given a choice to be philanthropic, not to give money to the monopoly that then philanthropolizes. Here I am only interested in Microsoft's evaluation of scanning and its unworried appearance at dangerous competition from the scanning of library books by Google. Of course, they would rather Google not be permitted to scan; they would rather Google crawl in a hole and die, but not enough to actually allocate money to compete in scanning.

Who are these other competitors? Not Gutenberg, it is happily scanning the public domain, building a wonderful collection of classic texts and, incidentally, providing the raw material for rip-off artists trying the sell the texts of Jane Austen to clueless consumers. Gutenberg is non-profit. Not the Internet Archive, also non-profit, which has doubled its size with uploads of Google scans. The only real competitors that might suffer are abe.com and zvab.com, sellers of used books. Personally, I don't buy the "unfair advantage over competitions" when the potential competitors are Amazon and Microsoft or the not for profit leaders in the field. With the orphans, Google will not make a dent in Amazon's market of books. Microsoft has lost its competitive edge in innovation (gaming excepted) but will continue to prosper through manipulation of the Windows upgrade cycles. Bad news for Malaria and Dengue Fever in Africa and those of us trudging from Vista to 7 without printer drivers.

The third point and final "concern" in the topic paragraphs is "the releasing of claims well beyond those presented." Not just beyond, but "well beyond," beyond by a far measure. Here we have, no doubt, among other interests, the Europeans. Public interest organization in many countries have sent letters and submitted briefs. I find it somewhat unhelpful in the case at hand for Judge Chin to charge Congress with renegotiating international copyright with a dozen countries. There is nothing on Gods green earth that would move, for example the Austrians, who have been represented by especially unyielding opponents to move off the dime. The Austrian authors' association has no intention of scanning books but would under no circumstance give up their hypothetical "copyright" that may or may not have been registered in the US, a "maybe" copyright which has no monetary, only sentimental value and thus should not even be a matter of contention in court. Their chief beef is that is hard to find out if they are registered or not, coupled with an absurd overvaluation of international interest in whatever they may have published.

Prof Grimmelmann argues convincingly that this was the deal-breaker. As I tried to understand it, there is some thought that the transfer of files from Google to my computer, and any deal that would allow that, would preclude any litigation in the future, for infringements of rights not yet actually perpetrated, but vividly imagined, not in any specificity, but in complete certainty of its intolerable gravity. What are these imagined infringements? What are these future claims? Is that just a legal red herring that can be waved whenever a proceeding bogs down? Is that a "continue litigation for another six years" card?

"... the question this part of the opinion resolves is how far a court can go in approving a settlement in which a class gives up claims against a defendant for things it hasn’t done yet.

... “identical factual predicate” test makes sense here is that it is grounded in preclusion law: win or lose, a lawsuit resolves all of the plaintiffs’ claims against the defendant that are based in the same facts.

Since Google hasn’t sold complete books — and wouldn’t without the settlement — the class members couldn’t sue Google on claims connected with whole-book sales. And thus, since those claims couldn’t properly be before the court in litigation, they’re not properly before it in settlement. Q.E.D." [from Laboratorium NB: to locate any quote on the web submit a query in the form > "couldn’t sue Google on claims" grimmelmann <  e.g. mark any text and put is in quotes; adding the authors name makes the triangulation more sure. Be aware of page or line cusps.]

I present Grimmelmann's summary, so nobody can say I am making all this up. It sounds better from Grimmelmann. I will however, have to deal with the repeated assumption that books are being sold, convenient and obvious to the lawyers, absurd to the librarians. Have libraries been "renting" out books for the last 3000 years and are they going to start "selling" them now? And please let us reserve the term QED for real logic, not for gossamer spun from legal platitudes about property.

So, I can make a deal to allow the quotation of snippets, perfectly legal before and still - but if I make a deal for something not in the original question about snippets, I would be saving myself a couple of years of litigation, followed by saving myself a couple of years of negotiation, followed by saving the judge a year and a half of procrastination, till the deal for delivery of whole books can be accepted or rejected. About 8 years. That would be bad. That would be counter to the 23rd Rule of Acquisition of the USDC. The court would actually want me to go through the whole nine yards; I don't really understand and don't think I am meant to. The 1st Rule of Acquisition is obviously: "No saving time allowed." That is a corollary to: "Once you have their money, you never give it back," which should really be amended to: "Once you have their money, get more."

The fact is: at any point, I as an author or heir of an author or I as a publisher who has the copyright or someone who bought a publisher, CAN OPT OUT of anything Google might want to do with MY BOOK. In the fantasy scenarios of the court this is not safety enough from "any future acts" that Google might commit with MY BOOK. I really don't get it how that could be the deal breaker except that the mere prospect "exceeding Rule 23" sets everyone into a tizzy.

It is a classic example of form over substance. Even though there is a general "out" for everyone who wants it at any time, Rule 23 still stands protecting all those too preoccupied or stupid or unwilling to find their way out of the deal. It is like taking headache pills so you don't have to have sex. There is no real reason not to have sex, but I don't want to say no; it would reduce my credibility as an alpha-male. So I open a bottle of Excedrin demonstratively and snarf down 2 - that is the function of Rule 23 in this case - to combat the headache that never was. To give shallow plausibility to the denial. It all is a bit illogical, a bit wonky wonky, tutti frutti. How could Google get around granting the "out" when they start delivering whole texts as part of the ASA. Rule 23 is irrelevant and excess, extra, redundant, spare, supererogatory, superfluous -sort of like "null and void." Does the "null" make the "void" more void. Does "part and parcel" make it any more clear. I understand about English/Latin or English/French pairs. Would six more years of litigation make the "out" more "en dehors?"

If you opt out - Google will not deliver your books. How much more "out" could you be? What is Judge Chin protecting here? I think he does not want the settlement. He suspects, he thinks he is about to make law and pulls back in a cold sweat.

Please tell me I am wrong, and there is more here than meets the eye. My concern is wasting the work of scanning and indexing 12 million books in deference to someones fear of being overturned for not considering something called Rule 23(e) fully and appropriately.

Really, let us follow this current scenario: Plaintiff: "I accuse Google of violating copyright of a book I published in 1960." Judge: "When did you last receive revenue from your book?" Plaintiff: "A check of $3.48 in 1963?" Judge: "How is Google causing you material harm?" Plaintiff: "Actually, your honor, they want to give me 60 dollars which is 43 more dollars than I ever made on the book, but for me it is a matter of principle. I just don't want other people to get at my book. Libraries are bad enough." Judge: "Have you considered opting out of the deal?" Plaintiff: "Why should I have to do that?" Judge  (should have said): "Will the bailiff please take the plaintiff from this courtroom and throw him rudely down the steps unto the sidewalk." But noooo, Judge Chin shares the "concern."

Is there no balance between the positive good to many potential users with the minor annoyance of the owner of a derelict property having to fill out a web form. Are the property rights absolutely beyond question? You tell me!

Or this future scenario: Plaintiff: "I accuse Google of turning my book into an electronic get-well card for divers recuperating from the bends. This is clearly not an action covered by the ASA as agreed to in 2011." Judge: "Have you considered clicking on a web site and opting out of your relationship with Google?"  Plaintiff: "Actually, your honor, they want to give me an extra 60 dollars which would make it a total of 103 more dollars than I ever made on the book, but for me it is a matter of principle. I just don't like divers that bend." Judge: "Have you considered opting out of the deal?" Plaintiff: "Why should I have to do that?" Judge (should say): "Will the bailiff please take the plaintiff from this courtroom and throw him rudely down the steps unto the sidewalk." But Judge Chin would share the "concern."

The concept of "releasing claims" in legal-world is a big stick; I have learned this. It takes away lucrative business. That big stick can be wielded only by Congress. But Congress is somnambulist, preoccupied and inefficient which guarantees more business than the courts can handle. Also, every engagement with the question of copyright in the last decades has been an unmitigated disaster for the public good in reference to texts as envisioned by the founding fathers who understood deeply the importance of easy access to books. So let us keep these hamfisted stick wielders as far away as possible from the scans of 12 million books. A huge chicken is about to come home to roost on the Copyright Act of 1976 wearing a "Reclaim Rights" T-shirt. That will keep the lawyers busy and make them forget all about books.

The last line of the 22 lines of the introduction (summary)  repeats that after all this time, money, effort, and fine tuning this hard-won agreement to settle, telescoped into 22 short lines, the settlement is denied. The last line promises further explanation in the following 45 half pages, not counting the appendix.

So here we have the blueprint on which this opinion rests - it may not even be necessary to look at the individual building blocks of the explanation to see what they might look like. For example there are the exercised grandchildren of a deceased author who have written an impassioned letter to the court, quoted at length, by Judge Chin, complaining of the inclusion of grandfather's work as orphan, who are not willing to fill out a web form to either opt out or collect their sixty dollars should they actually be the rightful heirs and the grandfather's book not be an orphan after all.

Alas, much of the law is really below the pale. It is an adversarial culture and each side uses all the tools, tricks and logical and linguistic weapons to make the other side look bad. When all else fails, at least prolong the proceeding. All the briefs are spin at best, outright filtered reality as the normal course and contumely and border-line defamation often. Citing from the briefs of interested parties is trying to weave some reasonable public good from a web of contradictory self-serving semi-truths. In this case, really, only the opponents try to make Google look bad. Google says, look, lets advance some knowledge, and lets make some very small money for authors with here-to-fore pretty commercially worthless artifacts of our culture, unread library books. We and the libraries will build it, and anyone who can substantiate a claim can get a small revenue stream, and anyone who does not want to participate can opt out and go jump in the lake at any time; the majority of authors and publishers have agreed. How great is the onus of submitting a claim for a revenue stream or to opt out and avoid heinous exploitation, I mean, legally speaking? It would be hard to take this seriously if it were not for the subtle humor of language and the endless satisfaction inherent in irony.

There may be some logic lurking somewhere; but it is a logic of envy, of wanting something destroyed. It is a sandbox playground logic: "I will not build my own sand castle because I lack the ability to concentrate on a complicated task, but I will make sure to step on yours so neither of us will have one."

In the case of the Austrians, the National Library in Vienna has signed a deal with Google to scan early modern books. A class of opponents is afraid the ONB is giving away the Austrian heritage, the right to future wealth is somehow transferred to Google. Hysterical letters appeared in the boulevard press, the only press widely read by the natives. Curiously, the scanning of some half a million books is to be done by the BSB in Munich since the Austrian bureaucrats have no interest in acquiring the technology to do their own scanning - a sad but wise move, applauded by all who know them. Fortunately, it seems that saner heads will prevail and the books will continue down the Autobahn to Munich to be scanned, quite a thrill for the average 16c. folio that has never been away from the Josephsplatz in the Center of Vienna. The authors association and other anti-Google interest groups, dizzy at their victory at present in the Chin ruling, will eventually find themselves sitting far out on a bare limb. They will however sit there forever, quite happily; I know the natives well.

Fortunately Google does have a considerable will. If they have the will to scan 12 million book, they may have the will to lawyer this through the courts.

Beyond the law.

So the US District Court has spoken in the matter of Google and the authors and publishers and the proposed settlement was rejected. The magic words in the opinion, picked from a selection of all the words in the English language were fair, reasonable, adequate, each preceded by a not.

Judges are lawyers, groan; it would be nice if one could devise a system where judgments could be made on specific questions, not on the basis of "the law" about something, but on the basis of actual expertise in the subject at hand. In this case we would like to have an author of solid reputation, of statesman- (or stateswoman)-like bearing, not motivated by narrow self-interest, who owns one or more copyrights, some actively producing revenue streams, some dormant and out-of-print to be found occasionally in a used book store for a small fraction of the original price. That person could even be the heir of some copyrights produced by an ancestor who died after 1941. Such a person might be in a better position to divide real claims and real deserved benefits from the hypothetically aggrieved who want to torpedo a settlement just to see it go boom. I am be dreaming.

Such a judge would have intimate experience with the workings of the book market.
People write books; people have written books, many millions in the last century. The number of books written is not infinite; it is not in the realm of the uncountable, it can be approximated fairly well, just as, in fact, the grains of sand in a professional beach-volleyball court can be counted. In fact, in the last thirty years, we, humanists in the persons of librarians, programmers and hardware jocks have come by a fairly complete list of the books in our major libraries and far beyond. For arguments sake, not putting too fine a point on it, certainly for books written in English, that has been achieved. If OCLC has not heard of your book, then chances are Google has not scanned it either. The result is that I can type my name into WorldCat and come up with a list of all the books I have written - had I written any - and the libraries where they can be found all over the world. Included are publications in first line journals, JSTOR, and any reviews of specific titles.

Case in point [see above] are the memoirs of C. Reginald Cooke, "Dust and Snow," (Published by Saffron Walden or in Saffron Walden in 1988 and again in 1991) whose heirs have written a pointed complaint the the court that the book of memoirs of their grandfather, deceased in 1990 is emphatically not to be considered an "orphaned" book. To them, the implication is, that an insult has occurred that must be settled to restore grandfather's honor. The word orphan carries an emotional charge that derelict property does not. Although I have been able to locate entries on the book in WorldCat along with a review from the Royal Geographical Society, attempts to find the publisher have failed because Saffron Walden also happens to be a town in Essex with lots of Google hits and any number of establishments answering to "publisher." Amazon lists the book as not available, Abe.com has no entries, nor does ZVAB. Google Books has an entry but no preview, not even snippets. There are lots of Cookes and quite a few Reginalds in the UK.

Here we have a matter of personal choice that an author might be able better to evaluate than a lawyer appointed to judge who apparently thinks this significant enough to cite. Granted that the three daughters of C. Reginald Cooke have the unassailable right to the copyright of their grandfather, at least till 2060, granted they feel their grandfather has been grievously insulted (through their misunderstanding of the technical term "orphan") and given that the book is not to be found easily on the marketplace - Amazon and the premier used book sellers - would it not have been a fitting tribute to C. R. Cooke's half a life in India to have the book available for download on Google? I personally would have given the book a peek. I have located one copy at the British Library; there are ten other copies distributed in libraries world wide.

Only an experienced published author could weigh the competing interests - the potential desire of a deceased author to still be read vs. the expressed desire of the heirs that everyone keep their hands off the book except at a desks of the St. Pancreas reading rooms, fair enough. The question is existential, not legal. Judge Chin sides with those who feel the sting of the word "orphan" keenly, who potentially would want to remain unavailable except as an entry in WorldCat and in some few libraries, or at least he shares their "concern." I do abjectly fail to understand why Judge Chin chose this example to quote at length.

The argument, as I understand it is really not accessible to logic, legal or otherwise. It goes like this: I author or we the heirs have made no money on this book, only 11 libraries have a copy. I/we can live with that. We cannot live with the idea that Google, (add real loathing to your voice) filthy rich Google, world-dominating Google, master of all knowledge Google should exploit grandfather's book. Although we have not made money, we will still assert that our property have been damaged and decreased through the actions of Google, that would be our only standing before the court. The pittance of money makes it easy to say no and feel good having deflected the presumption of a corporate ogre. Potential readers even in India be darned. If that means that grandfather's book will not be read again, let that be our own monument to his work. I feel that this is sad. Animus against Google or better, someones idea of Google, trumps the effort of grandfather to build his own monument to his life and work. How can the Judge fall for this? Sniff. I am getting verklemmt; talk amongst yourselves.

Actual authors live the desire to be read and are acutely aware of the market for their ideas. Writing books is not that easy. Judge Chin may not have experienced authorship, writing and publishing, as the common print author does. A search of Denny Chin in WorldCat has not yielded actual books although there are two ambiguous entries.

When Judge Chin writes something and I am sure he writes much, or his team of clerks write much under his supervision, the text, once the Judge gives the word, is filed as an "opinion of the law." I am a little confused about the actual electronic "paper" trail, but at some point stamps are stamped, electronic texts are rescanned and I can spend an hour with the 48 generous pages till it will sit well in my indexing system. I assume the text will become available in indexed form to all subscribers of the text services dealing with the law in a more elegant form. One can subscribe to these text bases for a pretty penny, which is done by all who have to research the law, up and down the food-chain; I understand one cannot do law without these services. The only lawyers I know do real estate, and they just have a few templates on their computer.

Having never worked in the law except to write the odd amicus brief for somebody else long ago, I cannot speak with any authority on the level of competition for law text data or if consolidation has created an efficient single access point to expensive proprietary systems.

So, in cogitating this case, one could counsel Judge Chin to consider ponderously how his own work would proceed if there were:

1. Worst case: no electronic files of his or anybody else's opinions going back to Iredell and Marshall; i.e. we are back in the 60's and the likes of John Houseman rule the paper chase.

2. Less bad but still a worse case scenario: there are five competing services that have acquired opinions, should the judge be looking for a specific opinion he (or she as the case may be) must look in up to five different windows before being able to shout out bingo or eureka or whatever judges would yell, hypothetically, when they have found something.

3. Best case: key words in a window, time, place parameters, press [enter]. If it exists it is there, if it is not there it does not exist. Work can proceed.

In non-legal publishing - Medline has achieved a best case scenario through economies of scale and the cooperation of the NIH with publishers. Again, I am not a user, but I have it on good authority that medical databases are consolidated to the point that one does not have to hunt around to find what one is looking for or what is available. Of course it is much easier to deliver all of medical texts than all books.

In neither "best" case would judge Chin put on his monopoly busting spurs. Were he not a lawyer, but a professor of English literature, he would have a rather different view of a literature search: think of Houseman and paper chases in dark, cramped and dusty stacks, with missing volumes, cut pages, tight bindings and acid discolored, unreadable print. I will not go into detail; literature people have gotten used to working this way, as lawyers used to do, although the deadlines for submission in literary studies seem a bit more pressing that the deadlines of Judges of the District Courts of the United States.

Had the judge published books, he would be familiar with a publishing process where text is not born away by trusted clerks to be seen again in a Westlaw window - nooooo - copies are printed, the right to copy is protected and royalties are collected. Part of the deal is that if a book is out-of-print and no new edition or reprinting is financed, the book is dead as far as the market is concerned, its value has gone to zero minus storage costs per year. The book or the print run become paper to be recycled, unless a few copies find their way onto library shelves. The books of the libraries that Google has scanned had no commercial value at the time they were scanned. Real-world logic of business plans at the time showed no money could be made off scanning and all such efforts were securely in the realm of non-profit efforts (Thank you, Microsoft). Google's effort to scan is an accident of history, a serendipity, since Brin an Page worked on a humanities scanning project when they were grad students at Stanford. There was no business plan, that is to say "no business plan" to the degree that a budget of 100 million dollar can be said to have no business plan.  I consider it as a favor to the world for which Google should be rewarded at least by picking up operating costs and stopping the whining. The actual investment of Google and all the libraries involved will never be recouped. When Google showed that one might just be able to create a virtual digital library of fantastic, here-to-fore unsuspected proportions, the legal concept of "concern" was discovered.

I would like to posit that this "concern" has nothing to do with Google's scanning of books but rather was transferred from other fields such as retailing where it could be argued that Google could be in a position to exert great influence. Certainly, Microsoft seems to want to enter that particular niche and prefers profiling Facebook accounts so they can get into the intellectually demanding field of focused marketing, instead of developing sophisticated data mining algorithms. Bonne chance, I actually do not want to say merde!

Judges generally do not participate in the market. Their works are in electronic space, however they may have arrived there, and there they are subjected to intense scrutiny; when they are found wanting - it will not long be a secret.

In the market of publishing, in which Judge Chin presumes to make rulings and admonish and reject, the rules have evolved chaotically.

Foremost, there is copyright. The NY Times, in its announcement of the Chin ruling grandiloquently states that the deal fell afoul of a 300 year old principle: copyright. Sounds good for a first sentence or a head-line; obviously this is a story everyone can understand. The court rushes, actually creeps glacially to protect 300 year old principles.

While this is technically true, to say only that is de facto disingenuous. Copyright as conceived by the founding fathers and taken from a British law of 1774, expired 14 years after publication with one 14 year renewal. It is well known that copyright infringement and fraud and theft were great problems in the early days of copyright. These limits were set because it was understood clearly that at some point, ideas move into the public domain. The renewal was added to protect wildly successful publications that still made money after 14 years. The public discussion gave the published ideas currency; for 28 years but for no more, that currency could be transferred to the bank account of the author. Thereafter the ideas belonged to the public that gave them value. In addition, after 28 years, ideas have lost their relevance, arguably, and have become part of the history of contemporary thought, belonging to the readers and the writers.

A case in point, in 1920, the German National-Socialists had 190 members. 28 years later, in 1948, having infected much of Europe with their ideas and millions of people having been killed, all major adherents of the ideas were either hanged or in prison for crimes against humanity and the ideas themselves were banned under strict penalties in Germany and Austria. That was roughly the span of a copyrighted text as envisioned by the founding fathers, 28 years and you are mere history.

Should an author want more money, that author of whatever gender or gender mix can go back to the well of inspiration and write a new book. The ideas that did not generate interest did not generate a cash flow and do not need to be protected - they migrated to libraries if they were lucky.

The legal tradition which Judge Chin used to reject the Google-Authors-Publishers settlement (if copyright were actually what flipped his switch) was not a law of yore as the NY Times writer gushing forth would like to make us believe; it was a recent extension of a principle which have re-balanced the rights of the author with the rights of the public to the total exclusion of the public, based on questions having nothing to do with books. Perhaps one could engage Judge Chin on the question of "cementing claims" rather than "releasing claims" way the hell beyond the question presented, keeping Mickey and Donald gainfully employed (Gertie the Dinosaur (1914) faces extinction). The European copyright has very little to recommend it because the notion of wide democratic dissemination of knowledge gets no takers in the operating caste system, and I say this as a matter of fact.

Hear me out: If a book is published in 1960 by an author aged 30, it will make its money from people aged roughly 20 to 80. These cohorts give value to the book. They buy it, they read it, they recommend it, they write reviews of it, they give it prizes and they quote it in their own publications. At some point, as was the intention of the founding fathers, the public, through giving value to the book, giving its only value to the book, has earned the rights to the book. The book has become part of shared history. The intrinsic value of a book, a paper and cardboard artifact of some weight is limited to fire starter or doorstop. The book moves from the proprietary domain into the public domain. There is a balance between the person who created something in mental space, sentences on bound pages, and the people who gave it value by internalizing the written thought. Without the contribution of the latter, the former gets nothing except ink-stained fingers or, more recently, carpel-tunnel syndrome.

Whether this line of argument can be applied to trivial forms of entertainment is another question. There is no great demand for images of cartoon characters to write dissertations.

With the most recent extensions of copyright, there is no chance that the cohorts that gave the book its value would ever enjoy the fruits of their labor, their discussing, reviewing, recommending etc. The book of the 30 year old author with a life expectancy of 80 will be protected until the year 3000. By that time the youngest contemporary reader of the book will have become 180 years old - good luck old-timer.

So really - in a real-world argument an intended balance enshrined in the legal history of the United States - has been upset, is no more, has joined the choir invisible, is dead, door-nail dead. Where is the "concern" for all the people, formerly called "We, the People."

It is well understood that there is a legal strategy for everything. If one wants it bad enough, it is possible to find a legal strategy to force breeders of canines to stop trimming ears or cutting tails of breeds where that has been fashion for years. This is done to represent the four-legged friend of man's right to floppy ears and wagging tails even it they get caught in the brush. Fair enough.

Is there a legal strategy to protect the public's right to have texts move into the public domain within their life-time? You say, absurd, there can be no such law, but there is a law protecting puppy-dog tails.

Let us say that I have a compelling need to put a lengthy volume into an indexing engine. Let us say, I can argue that without a word list and a search program, I would be in no position to extract the information from the text in question. Sequential reading of a hard-copy is simply not adequate given my personal work load and deteriorating verbal skills. I can get affidavits for that. The judge should appreciate the argument since every judge and every clerk uses electronic searching routinely. Given this fact, I could argue, that I could gladly wait a reasonable length of time to put a text into electronic form, let us say 14 or 28 years, but to wait for 140 years after the projected death of the last member of my cohort is an unreasonable burden on me and my contemporaries, or whatever one says for that in legalese.

So what are the implications of copyright protection lasting three generations or more. There are many, but most grievous for those of us interested in electronic text research is that contemporary texts will not be routinely indexed until the contemporary has become ancient history.

For example: Martin Heidegger died in 1986 - I cannot put Heidegger texts on my electronic workbench until 2056 - when I will be 109 years old. I would like to study the introduction of technical philosophical terms in Heidegger's lectures from his time as an assistant professor to his retirement from regular teaching in the semester cycle. Copyright prevents me from doing that work. Copyright does not prevent me from doing this work for Husserl as long as I use editions contemporary to Husserl (died: 1939).

So let us not hide behind a principle that might have once been legitimate but has been distorted by non-book-publishing licensing interests and a Congress clueless about the consequences of its hamfisted actions.

Let us move to the purported focus of Judge Chin's decision: the orphans: old, but not old enough to be free. As I understand it, books published before 1923 - 88 years ago are in the public domain - that excludes just about all cartoon characters except Gertie. There are some strange wrinkles in the music publishing business where publishers still require considerable per-performance fees for music written before 1923. No doubt there are some who find that date an impediment to their cash flow. It is in the courts awaiting some wise Solomonaic judgement.

Orphans, then, are a part of the set of books published after 1923 that are no longer being sold on the market by the publishers who originally brought them out. The reasons could be manifold: 1. the book had a limited print run, a thousand were sold, the rest taken to the dump, the book and the author forgotten. 2. The publisher went out of business in 1976 and the bankruptcy executor took all books that resellers would not take, to the dump; nobody collected the addresses of authors and heirs, who would have? 3. The book was a great hit. It sold out the first printing of 10,000 in 1980, and it sold out the second printing in 1984. In that year, the publisher changed emphasis to publishing self-help books and plans for a third printing were scrapped. The author died of grief without heirs in 1986, there was nothing of value in the estate and the copyright of no value was forgotten - the book became an orphan with 480 copies in libraries around the world. The latter is pretty much the best an orphan could hope for. There are not that many books published in the 1980's that are still reprinted or given new editions today. Those few books still reprinted obviously are not orphans.

Whatever the reason for their fate, the out-of-print orphans have found a home on the shelves of libraries and in used book stores. Unfortunately, we are losing countless orphans each year as bookstores go out of business, libraries handle off-site storage carelessly and private collections are culled by the heirs and the unwanted book are taken to the dump.

We are losing books every day - when we lose a book it is really lost. There is no cycle of birth and death as we know from life, when a book is lost, we can only hope for a bibliographic entry or a snippet quoted somewhere. The history of thought is littered with oh-if-we-only-still-had-this-book-by-Aristotle or _________ fill in your own blank. Fortunately, we now have a good critical mass that can be indexed, cleaned up, given better meta data and better file names. All those words can be statistically and lexicographically and ideationally and temporally researched. For some this is scary. I remember when there was talk of building the biggest super-collider ever somewhere in the badlands of Texas. The Texas congressional delegation was full of glee. The land was acquired, holes were dug, and the scientific super-collider community rose as one in opposition to the project. The project was abandoned. I was silly then; I assumed that everyone would actually want atoms to be cracked as they have never been cracked before. A wiser friend took me aside and asked pointedly, but what would all the scientists do at Chicago and CREN with their puny tunnels. It was a demoralizing insight at the time. Its about filling the rice bowls of physicists; taking care of spouses, children and family pets. Super-XXL science is too disruptive of careers.

Yet, today, I can use Google's N-grams to plot the co-occurrence of words through modern and early modern times. That is not exactly particle physics, but is still a fairly amazing capacity that is some decades ahead of what the general crowd of humanists knows how to handle. Frankly, it will not be easy to figure out what exactly to do with this capability sitting behind every Google window. I can plot science against beauty or truth against knowledge. At present it is a crude measure; yet, an important period in our relation to texts had made a significant breakthrough into public awareness. It is a breakthrough that many of us have been working on since the seventies, some since the fifties. Now, previously unthinkable routines are available for free as a Google app.

Judge Chin's ruling against the settlement is a set-back, but the research corpus is growing and clever people are poking around in 12 million books. I have no idea how existing large corpus research will match up their data with the 12 million books x 100,000 words/book is 1,200,000,000,000 words, approaching the debt of the State of California, numerically speaking. It is sad that Judge Chin has missed an opportunity that he will not get again now that he has been promoted to the Court of Appeals. He will become known as the judge who locked away Bernie Madoff and advanced Al Franken's careening toward the Senate. Well done. He could have been the judge who approved the greatest intellectual tool since the invention of ink. He could have been a contender. Perhaps a position on the supreme court will be a fitting tribute for inveterate almostness, in time.

As a preliminary summary, taking a look back through my last 20 pages, I will grant that my arguments are not compelling legal arguments and may be, in fact, arguments for congressional intervention to create more laws if they are not just pure wishful thinking of a computing humanist. Yet, hold on. Judge Chin found reasons to deny the settlement: Rule 23, 450 amicus briefs against, Germany, France, and Austria, the heirs of C. Reginald Cooke, and Robert Darnton, expert in chief on books, release of claims, absent class members, whatever.

Yet the rejection was never a done deal. The judge could have looked at the position of libraries, or of the authors and publishers who worked on the deal. Instead he chose to accept the fears of the anti-Google. He drew a line this side of "well beyond too far."

Yet he could have found reasons to accept the deal, or provisionally accept the deal, or put the deal under judicial supervision, whatever. Judges can do whatever they want it seems as long they give us a few small plausible sentences. He could have just accepted the deal and trusted that the opponents will regroup and be back in three years for a new ruling. As it is, the rejection increases the chances that features will be dropped, services will be curtailed, and safeguards strengthened during re-negotiations,  and we will be left with a skinny, plucked chicken.

In the mean while, the rest of us could have seen just how this library would work. We could have argued about procedures and pricing and formats of delivery and the myriad other issues about a project of this magnitude that take years to work out. So instead, we have, quoth Grimmelmann, a savvy ruling that makes no waves, does not screw up the law as such and only wasted a year and a half. Should we be thankful?