The Google Book Search Settlement

Topic Owners: Gwen, Lee, Jon

Topic Date: March 30

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Concrete Questions of the Week

How will the Google book digitization project affect various interests, including those who were parties to the settlement between Google and the Authors Guild/American Association of Publishers and those who were not? In particular, what changes will libraries (public, private, and university) and readers face going forward, and how should they respond?

Brief Overview of the Google Book Search Settlement

History of the Settlement

In 2004, Google began to digitize books from the collections of Harvard's, Stanford's, University of Michigan's, and Oxford's library systems, as well as the New York Public Library system. Google provided a service, Google Book Search (GBS), whereby users could search within these digitized books. The service returned short "snippets" of books, containing the search term and some surrounding text. Crying foul, a class action lawsuit was initiated by the Authors Guild in September 2005, citing copyright infringement. The Association of American Publishers followed with a suit of their own in October 2005. Google claimed that its actions were covered under the doctrine of fair use. Rather than fight that battle, however, Google decided to settle with the Author's Guild and the publishers.

The parties announced the settlement on October 28, 2008. At some time after May 5, 2009, the court will conduct a hearing to consider the fairness of the settlement; the court will then accept or reject the settlement.

Content of the Settlement

The settlement creates an entirely new legal regime for book digitization. The settlement calls for the creation of a Book Rights Registry (BRR), an independent body chaired by an equal number of author and publisher representatives, which is to maintain a database of book copyrights and implement the terms of the settlement. Google will be able to continue to digitize books, free from fear of litigation (at least from those copyright owners who do not opt out of the settlement and who published a book prior to January 5, 2009). In return, 63% of revenue from advertising and book sales will be given to the BRR, to distribute to rights owners.

Users of GBS will continue to be able to search the contents of books, but instead of "snippets", what they see will depend on the type of book. For those books in the public domain, users will be able to read the entire book. For books that are in-copyright, but no longer commercially available, users will be able to view up to 20% of the book (with some restrictions). For books that are in-copyright and commercially available, GBS will display only bibliographic information and "front material" (copyright page, table of contents, index, etc.). Rightsholders can also choose to change the amount of their book that users may view from these default settings. Users will also be able to pay in order to have permanent online access to the full book contents.

Libraries also gain from the settlement. Each public library will be allowed a single terminal which will display the entire content of the Institutional Subscription Database (ISD), essentially containing all in-copyright, non-commercially available books. Academic libraries will be allowed to have multiple terminals with such access, based on number of full-time equivalent students. Institutions may also purchase subscriptions to the ISD. "Fully participating libraries" are given digital copies of any book scanned from their collection, as well as digital copies of books in their collection scanned elsewhere, provided that a sufficient proportion of their own collection is digitized.

Implications of the Settlement

What does this settlement mean for libraries and the reading public? Many have hailed it for both improving access to knowledge by creating "the long dreamed of universal library" and for avoiding a judicial resolution that might have exposed antiquated aspects of US copyright law. But is this settlement optimal for all interested groups? The ramifications of the settlement will affect not only those parties who participated in the negotiations (Google, authors, and publishers), but also libraries and the reading public, neither of whom had a voice in the settlement-drafting process. Each of these groups will likely face a different set of benefits and problems. With a focus on libraries (public, private, and academic), we aim to identify the main challenges that the Google digitization project will entail and develop means of working within the bounds of the settlement to mitigate these concerns.

Class Outline

We will be working from the assumption that the current settlement will be approved by the court. How can we then mitigate the concerns that have been raised by libraries and the public within the framework determined by the settlement?

The class will begin with a short overview of the settlement itself, after which each of our guests will have ten minutes to present their views on the settlement and begin to answer the question posed above. We will follow this up with question we have prepared ourselves before turning it over to class discussion, guided by the Question Tool (see Class Participation).

Concerns we have identified generally fall within one of the following major headings:

• Access (including cost, number of public terminals, and permitted uses)
• Privacy and Security (including surveillance and censorship)
• Antitrust and Monopoly (with respect to both the BRR and Google)
• Copyright (including substantive legal implications of the settlement, the status of orphan works, and public availability of copyright database)
• Interface (e.g. more imaginative annotation/modification options; lack of collection organizing principles; fragmentation of works)
• International Implications (with respect to both international authors publishing in the US and international access to Google Book Search)

Guests

• John G. Palfrey, Henry N. Ess III Professor of Law at Harvard Law School, Vice Dean of Library and Information Resources at Harvard Law School, and Faculty Co-Director of the Berkman Center for Internet and Society. (Blog located here.)
• Jeffrey P. Cunard (via videoconference), managing partner of the Washington, D.C. office of Debevoise & Plimpton LLP.
• Allan A. Ryan, Director of Intellectual Property at Harvard Business Publishing.

Readings

Assigned Readings

• Jonathan Band's summary of the settlement on behalf of the Association of Research Libraries and the American Library Association.

• Selected provisions from the settlement agreement.

• James Grimmelmann's article outlining potential problems with, and revisions to, the settlement.

• Robert Darnton's article in the New York Review of Books criticizing the settlement (or, for those who prefer to listen rather than read, hear Darnton's criticisms on NPR).

• Letter in response by Paul Courant, head of the University of Michigan's library (a participant in Google Book Search), challenging Darnton's criticism of the settlement.

• Darnton's Response to Courant in the New York Review of Books (skip the published version of Courant's letter here, which is a less detailed version of the letter posted on his blog at the link above, and just read Darnton's response at the bottom of the page)

Optional Readings

• Skim the full settlement agreement, focusing on Article 4 (Economic Terms for Google Book Search) and Article 7 (Obligations and Rights of Participating Libraries).

• For the highly ambitious, Walt Crawford at Cites and Insights has compiled (PDF) an enormous number of (excerpts from) blog posts, with commentary, in a 30-page newsletter. It covers the landscape up until late February.

• Peter Brantley's critique that the settlement is insufficiently imaginative, in part for failing to enable readers to be able to alter the texts of books.

• This Economist piece about Brewster Kahle and his Internet Archive as an alternative or supplement to Google Book Search.

Further Research

• The full settlement, including all of its attachments, is available here.

• For those with additional interest in this subject, Timothy Vollmer at pureinformation.org has compiled a comprehensive and regularly updated list of links to articles and blog posts about the settlement.

Class Participation

We will be using our old friend, the Berkman Question Tool! (link) Prior to the date of the class, we will be putting up some questions that we feel are particular relevant and topical. We invite everyone to check these questions out prior to the class, add your own questions, make comments, and vote up questions you find particularly interesting. We will be using this list of questions to guide the discussion, especially in the second part of the class.