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 digitally scan books from the university library collections of Harvard, Stanford, Oxford, and the University of Michigan, as well as from 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 copyrighted books, containing the search term and some surrounding text. Crying foul, the Authors Guild, a writers' advocacy group, initiated a class action law suit on September 20, 2005, claiming copyright infringement. The Association of American Publishers followed with a suit of their own on October 19, 2005. Google responded that its actions were lawful under the doctrine of fair use. Rather than fight that battle, however, Google decided to settle with the Authors Guild and the publishers.

The parties announced a settlement on October 28, 2008. Under the current schedule, authors have until September 4, 2009 to opt out of the settlement, and the court (the U.S. District Court for the Southern District of New York) will hold a final hearing on October 7, 2009, after which it will accept or reject the settlement. Meanwhile, the Justice Department has reportedly commenced an antitrust review of 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 channeled to the BRR for distribution to rights owners.

Users of GBS will continue to be able to search the contents of books, but instead of returning "snippets," search results will depend on the type of book. For 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.). Additionally, rightsholders may choose to deviate from these default settings and individually set the proportion of each of their books that is available for users to view. Users will have the option of paying for permanent online access to the full content of digitized books.

Libraries are also addressed by the settlement. Each public library will be allowed a single GBS terminal that will display the entire content of the Institutional Subscription Database (ISD), which essentially is comprises of all books that are in-copyright but not commercially available. Academic libraries will be allowed to have multiple terminals with such access, based on the number of full-time equivalent students enrolled at their respective schools. Institutions may also purchase subscriptions to the ISD. "Fully participating libraries" are given digital copies of any book scanned from their collections, as well as digital copies of books that are in their collection but were scanned from another library, provided that a sufficient proportion of their own collection has been 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" (or at least a "universal bookstore") and for providing more access than may have been permitted under fair use if the case had gone to trial. 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 direct 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 ways of working within the bounds of the settlement to mitigate these concerns.

Outline of Class Plan

We will be working from the assumption that the current proposed settlement will be approved by the court. Within the framework that this settlement establishes, then, how can we mitigate the concerns that have been raised by libraries and the reading public? We hope to explore the contours of these problems and produce an array of possible solutions.

Class time will be segmented as follows:

• The class will begin with a short overview of the settlement itself, provided by the student presenters responsible for this class session.
• Then, each of our three guests will be given ten minutes to present his views on the settlement and begin to answer the question posed above.
• After our guests have introduced their perspectives on the settlement, we will follow up with questions we have prepared for them. These questions are designed to ensure that all important aspects of the settlement and its expected effects are brought up.
• Finally, we will open the session to class discussion, guided by the Question Tool (see Class Participation). The discussion will be focused on normative suggestions for how institutions and readers should respond to the settlement in the wake of its (presumed) approval by the court.

Substantive concerns generally fall within one of the following categories:

• 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)
• User Interface (e.g. more imaginative annotation/modification options; lack of collection-like organizing principles; fragmentation of works)
• International Implications (with respect both to settlement coverage of international authors publishing in the U.S. and to GBS access by individuals located outside of the U.S.)

Guests

Three guests will be participating in our class session. Two of them will be joining us live, and one will join us over videoconference. All three guests will be present for the duration of the class session.

• Jeffrey P. Cunard (via videoconference), managing partner of the Washington, D.C. office of the law firm Debevoise & Plimpton LLP.
• 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.)
• Allan A. Ryan, Director of Intellectual Property at Harvard Business Publishing.

Class Participation

We will be using our old friend, the Berkman Question Tool! (The instance name for our class session is IIFGBS, and it is located here.) Before the day of our class session, we will seed the question tool with some questions that we feel are particularly relevant and topical. We encourage everyone to take a look at these questions prior to the class and to make comments, add more questions, and vote up the questions you find most interesting. We will be using this list of questions to guide the class discussion, especially in the final portion of the class.

Readings

Assigned Readings

• This summary of the settlement, prepared by Jonathan Band on behalf of the Association of Research Libraries and the American Library Association.

• These selected provisions from the settlement agreement.

• This article by James Grimmelmann, outlining potential problems with and revisions to the settlement.

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

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

• This New York Review of Books piece by Darnton in response to Courant's challenges. (Skip the published version of Courant's letter here, which is less detailed than the one 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 of Cites and Insights has compiled this 30-page newsletter (PDF), which includes excerpts from an enormous number of blog posts, accompanied by his own commentary. It covers the landscape up until late February.

• Peter Brantley of shimenawa offers this blog post critiquing the settlement as insufficiently imaginative, in part for failing to enable readers more transformatively to alter the texts of books.

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

• Experiment with the current incarnation of Google Book Search.

Further Research

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

• Timothy Vollmer of pureinformation.org has compiled a comprehensive and regularly updated list of links to articles and blog posts about the settlement.

Class Session Recap

The class session was dominated largely by discussion among our three guests, punctuated by questions from the class. What follows is a thematic summary of the views that were expressed during the discussion. For a more detailed account of the class session (including diachronic notes on the guest presentations, the live discussion, and the online discussion, as well as lists of our prepared questions), see our edited class notes.

A Private Settlement With Benefits for Everyone

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 be noted that copyright holders, as members of the public themselves, had a stake in ensuring that the reading 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.

Publishers and Authors: Upholding the Copyright Regime

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; this move was a bold challenge to the existing regime. Publishers were also concerned about potential repercussions of Google’s practice of providing libraries with digital copies of the books it had scanned from their collections. Library users have special exemptions under the Copyright Act to copy books in a library’s collection, and these exemptions were 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, this exemption for library patrons coupled with mass digitization could lead to much more widespread copying of books in library collections without any revenue being generated for the rightsholders. It was these concerns that motivated publishers and authors to bring suit against Google.

Libraries: Concerned by Resource Strain and Privately Held Database

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 libraries 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, and 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 potential competitors from offering any comparable service in the near future.

(In)Appropriatness of the Settlement Mechanism as a Problem-Solving Tool

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?

Normative Suggestions

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

Teacher's Guide

Evaluation of the Class

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, however, 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. Jonathan 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 an 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 would require those leading the discussion to have a fairly good grasp of the major points of the settlement, to act as a fall-back on descriptive matters once the guests have left.

Use of Technology

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, with student voting signaling, presumably, which questions and topics they found most interesting.

The Berkman Question tool, or even an online poll, might have been used earlier in the planning process in order to determine which of the major issues the class found most interesting. This would have alleviated some of the problems mentioned in the "topic management" suggestion below, by allowing for a more narrowly focused class while ensuring that at least a plurality of students would be interested in the topic.

Videoconferencing was an effective way of communicating with a remote speaker. Appropriate camera placement should be considered in advance, in order that the remote guest is not given a shot of students' backs throughout the entire class. Videoconferencing also offers a convenient way of limiting the period of time for which the guests are available, which is less easily done with live guests.

Suggestions for Future Iterations

• Guest management - in order to help foster a lively class discussion that is neither dominated by the guests nor stuck on purely descriptive questions; potential ideas include:
  • Fewer guests - while each guest had a unique perspective on the settlement, more guests means less time for class discussion and student input, especially given the complexity of the settlement.
  • Pre-recorded material - in order to better control timing and ensure that only the most relevant and interesting bits are presented to the class, interviews with the guests and/or prepared statements by them could be created and edited. This edited final version could then be shown to the class instead of, or in conjunction with, live guests.
  • Time limit on guests - to address both timing issues and force students away from descriptive questions and toward more normative discussion, the amount of time for which the guests are available could be limited. Perhaps have the guests available for introductions and descriptive questions during the first hour, and then have student discussion during the second hour.

• Topic management - even though our topic narrowly addressed concerns raised by libraries and the reading public, and tried to determine how we might address those concerns going forward, we were only able to scratch the surface in the two hours allotted. Having a more focused topic (perhaps looking at only one or two particular concerns) would likely allow a deeper and more substantial discussion. As the topic becomes more focused, however, it may be more difficult to design it so that all students are interested and feel competent to contribute to the discussion. A class specifically addressing anti-trust concerns, for example, would likely have alienated many of the non-law students in the class.