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Google Books Litigation Page

Concerning the Google Books Settlement

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  • EPIC Launches "Fix Google Privacy" Campaign: In response to the recent announcement that Google has agreed to adopt a "Comprehensive Privacy Plan," EPIC has launched "Fix Google Privacy," a campaign to encourage Internet users to offer their suggestions to improve safeguards for Google's products and services. Submissions to EPIC will be forwarded to the Federal Trade Commission and considered by the agency as part of the final Privacy Plan. All comments must be sent before May 2, 2011. For more information, see EPIC - In Re Google Buzz and FTC - Analysis to Aid Public Comments. (Apr. 5, 2011)
  • EPIC Urges Court to Reject Google Books Settlement, Warns that Privacy Problems Cannot Be Fixed: In federal district court in New York, EPIC President Marc Rotenberg urged Judge Denny Chin to reject the revised settlement now before the court in Authors Guild v. Google. Mr. Rotenberg said that the settlement would "turn upside down" well established safeguards for reader privacy, including state privacy laws, library confidentiality obligations, and the development of techniques that minimize privacy intrusions. Mr. Rotenberg warned that the settlement would eviscerate legal safeguards for library patrons, commercialize access to information, consolidate Google's control of the Internet, and put in place an elaborate system of user authentication and watermarking. "A person at any library or any university in the United States that attempted to retrieve information from Google's digital library would be uniquely tagged and tracked. There is simply no precedent for the creation of such power." For more, see EPIC: Google Books and Privacy, EPIC: Google Books Litigation, and EPIC: Google Books: Policy Without Privacy, EPIC: Google Books Hearing Press Release. (Feb. 19, 2010)
  • EPIC to Defend Readers' Privacy at Google Books Hearing: On February 18, 2010, EPIC President Marc Rotenberg will appear in federal court in New York to represent readers' privacy and right to read anonymously. EPIC will urge Judge Chin to reject Google's deal with publishers, which requires readers to provide sensitive personal information to view digital books offered by Google, but fails to protect their privacy. EPIC previously moved to intervene in the case, observing that readers' interests are not represented, and warning that the settlement "threatens well-established standards that safeguard intellectual freedom," "imperils longstanding Constitutional rights," and "threatens to eviscerate state library privacy laws that safeguard library patrons in the United States." For more, see EPIC: Google Books and Privacy, EPIC: Google Books Litigation, and EPIC: Google Books: Policy Without Privacy. (Feb. 9, 2010)
  • Revised Google Books Settlement Fails to Fix Key Problems: Even after revisions, the Google Books Settlement still fails to address antitrust, privacy, and copyright concerns, according the the US Justice Department, privacy advocates, and academic authors.On February 4, the Justice Department filed a brief and issued a statement opposing the revised settlement. The Department said the revisions still ran afoul of authors' copyrights and did not fix antitrust problems. EPIC also continues to object to the settlement because it does not contain adequate privacy protections for readers. On February 4, EPIC informed the court of its intent to appear at the February 18 Fairness Hearing on behalf of users' privacy interests. For more information, see EPIC: Google Books and Privacy, EPIC: Google Books Litigation, and EPIC: Google Books: Policy Without Privacy. (Feb. 5, 2010)
  • Revised Google Books Settlement Announced, Privacy Problems Remain: The parties in the Google Books Settlement have filed an amended settlement. The Department of Justice, authors, EPIC and other privacy advocates criticized the original settlement. The revised settlement attempts to address price fixing and concerns about orphan works. However, the revised settlement does little to address privacy. Professor Pamela Samuelson stated “There are dozens of provisions in the settlement agreement that call for monitoring of what users do with books and essentially no privacy protections built into the settlement agreement.” For more information, see EPIC Google Books Settlement and Privacy, EPIC Google Books Litigation, and EPIC Google Books: Policy Without Privacy. (Nov. 17, 2009)
  • EPIC Moves to Intervene in Google Book Settlement, Cites Absence of Privacy Safeguards: Today, EPIC filed papers in federal district court on the proposed settlement between Google, authors, and publishers. The Google Books settlement would create a single digital library, operated by Google, but currently fails to limit Google's use of the personal information collected. EPIC stated that the settlement "mandates the collection of the most intimate personal information, threatens well-established standards that safeguard intellectual freedom, and imperils longstanding Constitutional rights, including the right to read anonymously." EPIC further warned that the Google Books deal "threatens to eviscerate state library privacy laws that safeguard library patrons in the United States." EPIC has previously participated as a "friend of the court" in many cases involving privacy issues. PRESS RELEASE - Media Call at 1 pm ET, Friday (9/4/09). For more information, see EPIC Google Books Settlement and Privacy. (Sep. 4, 2009)
  • Federal Trade Commission Issues Statements on Google Books Settlement and Privacy: With the Google Books Settlement now under consideration in federal court, FTC Chairman John Liebowitz today issued a statement, calling attention to privacy concerns and the vast amount of consumer information that could be collected. The Chairman expressed the Commission's commitment to evaluating the privacy issues presented by Google Books, a sentiment that was echoed by Commissioner Pamela Jones Harbour in her statement. In a separate letter, FTC Consumer Protection Director David C. Vladeck urged Google to address consumer privacy concerns and to limit the secondary use of user data. For more information, see EPIC Google Books Settlement and Privacy. (Sep. 4, 2009)
  • Privacy Opposition to Google Books Settlement Grows: Civil liberties organizations are urging Internet users to tell Google to adopt privacy protections for the Google Book Search. A judge in New York will determine later this year whether to approve the proposed settlement that would establish the service and give Google access to detailed personal information without any privacy safeguards. For more information, see EPIC Google Books Settlement and Privacy. (Jul. 23, 2009)

Introduction

In 2005, the Authors Guild filed a lawsuit against Google arising from the Google Books project. In October 2008, the parties announced a proposed settlement. Academics and rightsholders have criticized the Settlement terms on grounds ranging from antitrust to privacy. The Settlement sets forth non-privacy terms, including provisions regarding royalties and book advertising, in great detail. However, it does not contain meaningful privacy protections for readers or authors. Various entities and individuals have filed comments, objections, and amicus curiae briefs concerning the proposed settlement.

EPIC's Court Filings

On Sept. 4, 2009, EPIC filed a motion to intervene in the Google Books Settlement. EPIC sought to represent readers' privacy interests in the lawsuit. The Court denied EPIC's motion to intervene, but invited EPIC to filed objections to the settlement highlighting threats to readers' privacy. EPIC filed its objections on Sept. 8, 2009.

The Settlement Allows Google to Collect and Store Vast Amounts of Personally Identifiable Information

The Google Books Settlement allows for the collection and storage of vast amounts of personally identifiable user information that can then be used to create detailed user profiles.

The Settlement describes three ways that users can get access to the full text of copy righted books. All of the methods laid out in the settlement require that the user identify himself in order to access these books. All of the methods also permit Google to collect, retain, and transfer personally identifiable information.

The Settlement provisions indicate that users will almost always be required to use a Google Account to use the Google Book Search database. This requirement would permit Google to create detailed user profiles that link a user's Google Book searches with her other Google account activity, including emails, internet searches, mapping services, and any other Google product she uses.

In addition, the Settlement Agreement allows Google to place advertisements on Google Book Search pages as long as those advertisements are not placed "on, behind, or over the contents of a Book or portion thereof." It is well known that Google's advertising revenue depends on its ability to target advertising to its customers, and such targeted advertising would be facilitated by a Google Account login that allows it to create a detailed profile of the user, based on all of the Google products he uses, including Google Books. The Settlement does nothing to prevent this.

The institutional subscription described in the Settlement does not allow for any more anonymity than the individual user account. The Settlement states that, for institutional subscriptions, Google will "limit access to Books to appropriate individuals within the subscriber institution." To do so, Google will need to obtain borrower data from the libraries. Google does this to authenticate and identify users, but this mechanism aids Google's collection and storage of user data by allowing Google to connect users - even those using institutional subscriptions instead of individual ones - with particular books and searches.

Additionally, when users of the institutional subscription database print out book pages, Google will include a visible watermark that "displays encrypted session identifying information provided by the subscribing institution during such session, and which could be used to identify the authorized user that printed the material or the access point from which the material was printed." In order to place this watermark, Google must necessarily collect personally identifiable information of each user. Thus, Google can collect vast records of user information, even when the user accesses Google Books at the library, through the institutional subscription.

The Settlement Does Not Guarantee that this Personally Identifiable Information Will be Protected

The settlement does not place any restrictions on Google's collection, storage, or use of personally identifiable information that is obtained from users when they access books using either consumer purchases or institutional subscriptions.

Nothing in the current Settlement terms prevents Google from requiring all users to obtain a Google Account as a condition of accessing the book search service. In fact, the Settlement explicitly authorizes Google's use of an "account login" to authenticate users.

Additionally, the settlement places no restrictions on Google's use of borrower data from libraries. Because the Settlement also does not limit Google's use of consumer purchase data, the Settlement does not prevent Google from combining a user's Borrower and Purchaser records to make connections between a particular user's borrower and purchaser history.

The Settlement also places no restrictions on Google's or the Rights Registry's use of user-created book annotation.

The Settlement also fails to restrict these entities' use of the personal information that identifies the twenty-five individuals with whom a reader may share his or her book annotations.

The Settlement places no restrictions on data that is used to create visible watermarks that are placed on institutional subscription printouts and can be used to individually identify users. The settlement does not clearly state what information would be collected to create the watermarks, the amount of this information that may be maintained by Google, and the length of time that Google or a participating library may maintain this personal information.

Finally, although the Settlement requires Google to provide the Rights Registry with usage data, it places no limitations on how specific the collected data will. It also does not limit the extent to which Google and libraries will provide readers' personally identifiable information to the Rights Registry. The settlement only restricts Google's transfer of rightsholders' personally identifiable information.

EPIC’s Interest

 The digital book system established by the Settlement will dramatically change how individuals will obtain access to information in the digital age. Readers will be required to disclose sensitive, personal information that the parties will collect and store, and link to other services that will enable the creation of detailed, secret profiles on individuals who seek access to digital works. The Settlement places no meaningful limits on how the parties obtain, use, or disclose readers’ information. Although the Settlement requires Google to provide the Rights Registry with usage data, it places no limitations on what kinds of data will be collected and reported to the Rights Registry - or how specific that data will be. It also does not limit the extent to which Google and libraries will provide readers’ personally identifiable information to the Rights Registry.

EPIC has done extensive work in the areas of consumer privacy protection. EPIC has testified before the United States Senate about online tracking and cookies, has engaged in online public information campaigns about consumer profiling, and has filed FTC complaints in a variety of consumer protection topics, including the Google/DoubleClick merger. EPIC has also represented consumer privacy interests in class action settlements. In In re DoubleClick Inc. Privacy Litigation, EPIC was granted the opportunity to address the court on the privacy impact of a proposed settlement concerning online advertising and the collection and use of personal data. As a result of Mirfasihi v. Fleet Mortgage Corp., EPIC also received a substantial cy pres award from another Federal District Court in support of EPIC’s ongoing work to address emerging consumer privacy issues.

Legal Documents

The Author's Guild et al v. Google Inc., 05-08136 (S.D.N.Y. filed Sept. 20, 2005).

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