The Google Book Search Settlement

Topic Owners: Gwen, Lee, Jon

Topic Date: March 30

back to syllabus

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 up with the guests with questions we have prepared ourselves before turning it over to class discussion, guided by the Question Tool (see Class Participation), with an emphasis on how institutions and readers should respond to the settlement, assuming it is approved by the court.

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 being covered by the settlement 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 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.

• Browse the current incarnation of 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.

Teaching Tools

[This is what I have so far from our list of "what worked and what didn't" and notes from the speakers' introductory remarks. It is unpolished, and I'll go through it again tomorrow and edit it, and also potentially add more Lbaker 23:31, 4 April 2009 (UTC)]

Achievement of Class Objectives

The Google Book Settlement is a large, diverse, and contentious topic. Even with our decision to assume the settlement would pass in essentially its current form and the focus on concerns raised by libraries and the reading public, there was still too much material to cover in a mere two hours. One component of this difficulty is the sheer complexity of the settlement itself - at over 140 pages plus appendices, there is a lot of material that one must digest in order to evaluate potential concerns and discuss methods of alleviating them. Johnathan Band's summary does a good job of explaining the most relevant portions of the settlement, while the Grimmelmann piece explains major concerns in the context of the settlement, but neither address all details. As a result, significant time must be allotted to answering specific questions regarding the terms of the settlement before more open-ended discussion on concerns and solutions can proceed. While each of our guests brought their own unique perspective to the settlement and had very insightful things to say, three guests are likely too many to incorporate into a two-hour discussion.

Once the floor was opened for discussion, there was significant push-back on the idea that the correct metric for comparison in determining whether the settlement was a good thing was the status quo prior to the settlement. Although one view of an alternate “dream scenario” was aired, it seemed that more could have been done on this front. One suggestion that may have both helped to reduce the time spent on a descriptive discussion of the settlement and created a more lively discussion of alternatives (and how to reach a collectively agreed-upon “dream scenario”) would have been to restrict the amount of time in which our guests were available. This may have prevented monopolization of the conversation by the guests, allowing for more student input, and also create a more collegiate and unrestricted discussion. Input from a wider variety of students from different backgrounds might have allowed for some creative suggestions that may not necessarily occur to lawyers and legal academics with expertise in the field of copyright. The downside, of course, would be that there would no longer be an expert on the settlement present to answer any detailed questions of the settlement as it stands.

The minimal use of technology seemed to work well. Students discussed the questions pre-seeded on the Berkman Question Tool and proposed questions of their own, one of which was used to promote discussion.

Teaching Materials

Introductory Remarks

Despite all the concerns raised in the blogosphere and the proposals to amend the settlement, it is important to remember that this settlement is the (presumptive) result of an actual litigation between specific parties. The parties involved have negotiated with their own interests in mind, but have also taken great care to incorporate other interests into the proposed settlement. Major libraries participated in the negotiations both directly and through Google. The public interest was taken into account in a variety of ways, including the substantial provisions for access for the visually disabled, and the provision of the public access terminals to all libraries. It should also not be forgotten that copyright holders are members of the public themselves, and thus they also had an interest in ensuring the negotiations did not ignore the public interest. Furthermore, providing the public with 20% of the full text of most in-copyright but out-of-print books is much better for everyone than merely providing snippets.

In a sense, the litigation was about ensuring that the rights given to copyright holders were maintained. The Copyright Act sets up a permission-based system, with those wishing to make use of copyrighted works finding the rightsholder and negotiating for that permission. Google sought to make digital copies of books without seeking the requisite permission. Publishers were also wary about the repercussions of Google providing the digital copies it had made back to libraries without any constraints. Library users have special exemptions under the Copyright Act to copy books in the library’s collection. This exemption was carved out during an era where the library’s photocopier was the only means of producing such a copy. In today’s digital era, however, this exception for library patrons coupled with mass digitization could lead to widespread copying of library-held books without any revenue for either publishers or authors. Concerns such as these are what prompted the litigation.

From the perspective of an academic interested in libraries, there are causes for concern, even though the settlement represents an improvement over the status quo and would result in a net increase in public access to information. The provision of a free public access terminal to every library is a huge boon to small-town local libraries, but does not provide the same benefits to large libraries such as some in the New York Public Libraries system. In the latter case, the terminal may even become a hindrance rather than a help. For research libraries, there are concerns over restrictions on what users may be able to do with the information in the format in which it is provided. The digital book database produced by Google would be an invaluable corpus on which to perform various types of research. Academic libraries are rightfully concerned about power over this corpus being concentrated in the hands of a single, or small handful of, powerful private actor(s). There are concerns that this settlement effectively precludes any comparable service from being provided in the near future by a potential competitor. There is also a general criticism of deciding broadly applicable legal issues with public repercussions through private litigation. What effect will the settlement have on copyright doctrine more broadly? How will the fate of orphan works change after the settlement is enacted? More fundamentally, is it wise to create such a far-reaching system before we have even worked out, as a society, how we want the digital world to look? Many of these concerns can be addressed through three improvements to the settlement:

• Ensure the possibility of a meaningful competitive landscape, such that second-comers are not preclusively barred from success
• Construct some meaningful way for the public to have a meaningful level of control over the workings of the Book Rights Registry
• Create a system of periodic review for the settlement. This does not need to involve wholesale review of the entire settlement by the courts, but could merely involve libraries negotiating sunset provisions for individual works with publishers, authors, and other rightsholders.