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 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.

Teachers' Guide

Achievement of Class Objectives

The Google Book Settlement is a large, diverse, and contentious topic. Even with our decision to assume the settlement would be approved and focus specifically on concerns raised by libraries and the reading public, two hours was insufficient to do more than scratch the surface. An even tighter focus for the class may have partially alleviated this difficulty, albeit at the cost of precluding discussion topics that students might have found more interesting. Such a tightening of focus would not have addressed the most significant factor contributing to the time constraint, which is the sheer complexity of the settlement itself. At over 140 pages plus appendices, there is a lot of material that must be digested before potential concerns may be formulated and discussed. Johnathan Band's summary does a good job of explaining the most relevant portions of the settlement, while the Grimmelmann article explains major concerns in the context of the settlement, but neither piece addresses all the relevant details. As a result, significant time was spent with Mr. Cunard answering specific questions regarding the terms of the settlement, before the class could proceed to a more open-ended discussion about concerns and potential solutions. Additionally, while each of our guests brought their own unique perspective to the settlement and were very insightful, we found that two hours is insufficient to appropriately accommodate three guests.

A substantial portion of the class discussion focused on the question of whether the pre-settlement status quo was the appropriate comparison against which the settlement should be judged. Although one alternative “dream scenario” was suggested as a potential foil to the settlement, it seems that more could have been done with this. A more lively discussion of alternatives to the settlement might have emerged had the guests only been present for the first hour of the class. This might have prevented monopolization of the conversation by the guests, allowing for more student input and a greater diversity of ideas and proposals. By removing the “settlement expert” after a specified period of time, the amount of time spent asking detailed descriptive questions about the settlement may have been reduced, allowing more time for a more open-ended normative discussion of concerns with the settlement and potential alternatives. Of course, if fundamental questions regarding the mechanics of the settlement remained, restricting access to the guests would impair an informed discussion of prominent concerns and potential solutions.

This class was served well by the minimal use of technology. The Berkman Question Tool was useful in providing a means for classroom backchannel discussion while not being too distracting. It also provided “fall-back” questions to use if there was a lull in the discussion. Given that some of the pre-seeded questions were voted up, it could have served as a means to steer the discussion to topic areas the class deemed most interesting, again if there was a lull in the discussion.

Teaching Materials

Introductory Remarks

Despite concerns and settlement amendment proposals raised in the blogosphere, it is important to remember that this settlement is the (presumptive) result of an actual litigation between specific parties. Although the parties have taken care to incorporate other interests into the negotiation process, at its core the settlement is designed to satisfy the concerns of publishers and authors that led them to sue Google in the first place. Nonetheless, major libraries had a presence during the negotiations, participating both directly and through Google. The public interest was also taken into account in a variety of ways, culminating in the substantial access provisions for the visually impaired and the provision of public access terminals to all libraries. It should also not be forgotten that copyright holders, as members of the public themselves, had an interest in ensuring that the public interest was not ignored during the negotiations. In any case, all three guests agreed that the settlement reflects a substantial improvement over the status quo for all.

From the publishers’ perspective, the litigation was essentially concerned with ensuring that copyright remained a permissions-based regime. When Google decided to start digitizing books on a massive scale, it did so without attempting to secure permission from rightsholders, challenging this regime. Publishers were also concerned about potential repercussions of Google’s practice of providing libraries with digital copies of the books it had digitized from their collection. Library users have special exemptions under the Copyright Act to copy books in a library’s collection, exemptions carved out during an era where photocopying a book, page by page, was the only means of producing such a copy. In today’s digital era, however, this exemption for library patrons coupled with mass digitization could lead to widespread copying of books in library collections without any revenue going to the rightsholder. It was these types of concerns that motivated publishers and authors to bring suit against Google.

Although the settlement would result in a net increase in public access to information, there are causes for concern. While the provision of a free public access terminal to every library represents a boon to small-town local libraries, it may instead act as a strain on a larger library such as those in the New York Public Library system. The digital book database that Google is amassing would be an invaluable corpus on which to perform various types of research. Research libraries are rightfully concerned about restrictions on the use of this information. Potential problems also arise due to this corpus being concentrated in the hands of a single, or small handful of, powerful private actor(s). These concerns about concentration of power over information are heightened since the settlement effectively precludes a potential competitor from offering any comparable service in the near future. Finally, there is the argument of institutional competence: are broad legal issues that so fundamentally affect the public interest best decided 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 establish such a rigid, comprehensive system for the digital book realm before we have a better idea, as a society, of how we want to structure our digital world?

Professor Palfrey suggests three improvements to the settlement that would begin to address many of these concerns:

• Ensure the possibility of a meaningful competitive landscape, such that second-comers are not barred from success
• Establish a means by which the public can 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 periodic 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