The Online Discussion of the Google Book Search Settlement

 

The project known today as Google Book Search started in 2002, when Google began to consider whether it might undertake a mass book digitalization project similar to the Library of Congress's American Memory project and Project Gutenberg.[1]  In 2004, Oxford University's Bodleian Library signed on as Google's first library partner in the project, and by the end of that year Harvard, Stanford, the University of Michigan and the New York Public Library had signed on as well, along with a number of publishers. Google Book Search began scanning books and making the digital copies available for viewing online, eventually adding a "download a PDF" option for all out-of-copyright books in the database.  For in-copyright works, Google attempts to limit the number of pages viewable and prevent printing and copying of text.  The Google Book Search website offers more detailed information about how the product works. 

 

In 2005, the Author's Guild and the Association of American Publishers filed lawsuits against Google alleging copyright violations stemming from the books scanned and made available on Google Book Search.  Three years later, following extensive settlement discussions, the parties came to an agreement.  The Google Book Search Settlement,[2] announced October 28, 2008, has spurred a great deal of debate about what the lengthy and complex agreement actually entails, and what benefits and problems it may create for the parties to the Settlement, third parties whose interests are affected but who have not been involved in settlement decisions, and for the public at large.  Because of the recency of the Settlement, much of the conversation thus far has taken place in the blogosphere rather than in more traditional academic contexts such as journals and books.  Indeed, a Westlaw search conducted on April 15, 2009, found that only six law journal articles even mention the Settlement, all but one of which refer to the Settlement only in passing;[3] only one article, published in April 2009, provides a sustained analysis of the Settlement, and that article, by Professor James Grimmelmann, is only ten pages long.[4]  Indeed, Professor Grimmelmann, who has been quite active in the discussion of the Settlement taking place online, has written more about the Settlement on his blog than in this published article.

 

Because the district court will hold a Fairness Hearing on October 7, 2009, to determine whether to approve the Settlement, it is likely that the bulk of the debate about the Settlement leading up to that decision will take place online.  In an effort to make the myriad arguments put forth on numerous blogs more readily digestible, we have undertaken the project of reviewing and cataloguing this online debate.  We have summarized the various arguments about the Settlement and organized the discussion based on the interests at issue.  Within the summarized discussion of the arguments, we have linked to the most pertinent blog postings.  We have also created a comprehensive Blog Directory that lists and links to the more than 130 postings that have discussed the Settlement thus far.  

 

 

A.    How the Settlement Effects the Public Interest and What Role the Government Should Play in Protecting That Public Interest

 

1.     The Settlement creates greater and more convenient public access to books.

 

2.     The Rights Registry created by the Settlement poses a potential antitrust problem.

 

3.     Google now holds a monopoly over digital books.

 

4.     The public would be better off if this case had gone to trial so the court could settle the fair use question.

 

5.     The Settlement fills a role the government should be playing.

 

6.     The Settlement creates huge privacy concerns.

 

7.     The Settlement establishes a scary precedent.

 

8.     There might be negative consequences if certain provisions of the Settlement do not run as smoothly as hoped, or fail altogether.

 

 

B.    How the Settlement Impacts Libraries

 

1.     The Settlement is of great benefit to libraries, in terms of both increased access to books and improved preservation options.

 

2.     Under the Settlement, libraries will pay too much for too little access.

 

3.     The digital copies libraries will be provided under the Settlement are inadequate for preservation purposes.

 

4.     Libraries' participation in the Settlement may violate their legal ethical obligations.

 

5.     Google is usurping libraries' role—libraries should have undertaken this project themselves.

 

C.   How the Settlement Impacts Rightsholders

 

1.     The Settlement is great for authors and publishers because it creates new markets, distribution channels, and other commercial opportunities for their works.

 

2.     The Settlement is not representative of all the interests at stake, and violates the rights of parties who were not represented during negotiations.

 

3.     The opt-in rights-claiming system will leave many rightsholders uncompensated.

 

4.     Concern about the Settlement's opt-out provision.

 

5.     Foreign rightsholder opposition.

 

 

D.   How the Settlement Impacts Google

 

1.     The Settlement leaves Google in a very good position.

 

2.     Google was wise to settle to avoid litigating the fair use question.

 

3.     The Google Book Search project itself may not have been a good investment, and therefore settling was not to Google's benefit.

 

4.     Although settling may have been a good idea, the terms of this particular Settlement are bad for Google.

 

5.     The Settlement does not live up to Google's mission.

 

6.     The Settlement will encourage more lawsuits against Google.

 

 

E.    How the Settlement Impacts Private Companies Not Party to the Settlement Discussions and Ultimate Agreement

 

1.     The Settlement will harm future digitizers.

                                                                                                           

2.     Google will present fierce competition to both traditional and online bookstores, and in particular to Amazon.

 

3.     Microsoft feels threatened by the Settlement, and is rumored to be working behind the scenes to undermine it.

 

 

F.    Blog Directory

 

A.  How the Settlement Effects the Public Interest, and What Role the Government Should Play in Protecting That Public Interest

 

 

A-1.  The Settlement creates greater and more convenient public access to books.

 

Because of the Settlement, the public will have greater access to both digital and physical copies of books. 

 

[I]n the absence of the settlement—even if Google had prevailed against the suits by the publishers and authors—we would not have the digitized infrastructure to support the twenty-first-century Republic of Letters. We would have indexes and snippets and no way to read online any substantial amount of any of the millions of works at stake. The settlement gives us free preview of an enormous amount of content, and the promise of easy access to the rest, thereby greatly advancing the public good (Paul Courant, 3/26/09). 

 

Anyone will be able to find and download a complete copy of any out-of-copyright book.  Additionally, with respect to in-copyright works, "20% of any work not opting out will be available freely; full access can be purchased for a fee. That secures more access for this class of out-of-print but presumptively-under-copyright works than Google was initially proposing. And as this constitutes up to 75% of the books in the libraries to be scanned, that is hugely important and good" (Lawrence Lessig, 10/29/08).  Additionally, the ability to search the text and review up to 20% of in-copyright books will help users make more informed decisions about which full texts to purchase.  Furthermore, the public will be able to locate, review, and even purchase out of print books that were previously difficult, if not impossible, to find.  "The settlement represents a far superior outcome to a simple victory by Google or the copyright owners in the litigation, in that it creates 'a transformative resource' offering access to a huge trove of copyrighted, yet out-of-print or otherwise obscure, books and anthologies."[5]

 

At local libraries, therefore, users will be able to read many more books than are physically available and accessible in their geographic area.  It is important to note, however, that this benefit may be undermined by the fact that each library only gets one free public access terminal, whereas if libraries were able to digitize their collections on their own, it might be considered fair use, and libraries could thus provide their patrons with even greater access than is available under the Settlement, including inter-library loans of digital copies.  Kristen Cichocki at K. Mara Law blog, for example, is concerned about Google monopolizing the book digitalization field, and cornering other parties, especially libraries, out of the market (10/30/08).  Nonetheless, many believe that, "the fact that the settlement itself could be improved doesn't change the fact that, even unmodified, it would be an improvement over the kinds of access we have to copyrighted books today," particularly given that libraries have the option to purchase additional subscriptions (Peter Suber, 11/6/08).  "The public as individuals get an incredibly useful book search engine, one that will come increasingly close to being genuinely comprehensive over time. We also get another convenient source of e-books, free PDF access to millions upon millions of public-domain books, and some degree of full-text library-based access to the rest" (James Grimmelmann, 11/8/08).

 

Additionally, the Settlement allows researchers open access for non-consumptive research, allowing them to run "gigantic statistical studies on the entire corpus of scanned books,. . . advancing human knowledge about algorithms, natural language, the history of publishing, and other topics" without "intrud[ing] on any author's interest in making money from having her books read by people" (James Grimmelmann, 11/8/08).  Adam Corson-Finnerty, Senior Library Administrator at the University of Pennsylvania, is concerned that this means that " the settlement represents a very significant loss to the academic community—the loss of true 'consumptive' research" (12/31/08).  However, the academic community has arguably not actually suffered a loss; researchers still have all of the same options currently available to them for undertaking consumptive research.  The Settlement only adds value here, by expanding access to conduct searches, providing free access to additional material in local libraries, and providing a more comprehensive database for non-consumptive research.

 

Despite the benefits of the Settlement touted by many commentators, others believe that the Settlement does not go far enough to allow open access, especially for orphan works.  In Wade Roush's view, for example, the Settlement falls short of the lofty concept of open access to literature that Google originally had envisioned for the project.  "Specifically, the settlement seems to put an end to hopes that the Google Library Project would result in widespread free or low-cost electronic access to books that are out of print but have not yet passed into the public domain" (10/31/08).  According to Roush, the class in the Settlement did not include representatives of the public interest, which he believes could have been represented by "readers." As a result, many bloggers consider the Settlement disappointing for the public. Roush explains that he is "saddened by the gap between the level of open access to literature that was considered possible when Google first launched its project to digitize millions of library books and what we're probably going to get as a result of this agreement" (10/31/08).

 

 

 

 

 

 

 

A-2.  The Rights Registry created by the Settlement poses a potential antitrust problem.

 

Various bloggers commented on the possible antitrust issues raised by the creation of the Book Rights Registry.  Some commentators seem to confuse the fact that the terms of the Settlement oblige Google to provide the money to set up the Registry with the idea that Google will be in control of it.  "Allowing a content registry to be controlled by a company that also exploits that content creates anticompetitive conditions" (Chris Castle, 12/31/08).  In fact, the Registry will be an independent nonprofit, which will be managed by rightsholders (see Siva Vaidhyanathan, 11/6/08; Googleblog, 10/28/08).  Even so, the set-up seems "strange" to many. 

 

That Google is doing this is in many ways a good thing—what an appalling prospect if the publishers were to try and build such a system!  But there are dangers and ironies in a situation where Google as the commercial fox, the first and prime exploiter of the distribution opportunities flowing from the settlement, is also designing the chicken wire and building the coop in which the hens will be housed.  It is a bit odd for a commercial operator to building [sic] its own regulator (Peter Brantley, 11/9/08 (quoting Adam Hodgkin, 11/9/08)).

 

Even given an independent Registry, the antitrust critique centers on the fact that "[t]he Registry is a centralized entity with the authority to negotiate on behalf of all book copyright owners.  As such, it walks and quacks like a cartel" (James Grimmelmann, 11/8/08).  One specific concern is that the Registry could unilaterally choose to negotiate only with Google.  However, because the Settlement puts a number of limits on the Registry intended to alleviate the antitrust problem, Professor Grimmelmann makes an important distinction: "while the Registry required by the settlement is not necessarily an antitrust problem, the Registry permitted by it could well be one" (11/8/08).

 

To diminish the potential antitrust issue, Grimmelmann recommends that "the Registry must be explicitly required to represent any future copyright owners who agree to its standard deal, and explicitly forbidden from offering future copyright owners any materially different deal" (11/8/08).  He also suggests that the Registry be required to sign an antitrust consent decree.  Other collective licensing organizations, such as ASCAP and BMI, operate under antitrust consent decrees and are subject to much more regulation than the Book Rights Registry (11/8/08; see also Neil Netanel, 10/28/08; Sherwin Siy, 10/28/08).[6]

 

 

 

 

 

A-3.  Google now holds a monopoly over digital books.

 

(i) Monopoly in the market

 

Many bloggers believe that the Settlement, rather than merely the Registry it creates, presents an antitrust problem for Google because it sets up huge hurdles for competitors in the digital book market. 

 

The antitrust danger here is that the settlement puts Google in a highly privileged position for book search and book sales. Do you want to sell e-books of scanned out-of-print books the way Google will? Good luck with that; I hope you've put aside a lot of money for lawyers. The authors and publishers settled voluntarily with Google, but there's no guarantee they'll offer similar terms, or any terms at all, to anyone else (James Grimmelmann, 1/15/09).

 

Furthermore, because Google did not follow through with litigating the fair use question, subsequent market entrants cannot rely on a fair use finding for their digitizing activities (see Part A-4).  Thus the main barriers to competition include the Settlement's most favored nations (MFN) clause, potential licensing costs, and the risk of getting sued.

 

The most favored nations (MFN) clause requires the Registry, for the first ten years, "to offer Google any better terms [economic or otherwise] it would give to anyone using any data or resources that Google provides the registry, or that is of the type that Google provides" (Chris Castle, 12/31/08).  This is true even if offering better terms to a different company, such as Microsoft, is "necessary to enable [that company] to enter into the digital books business and provide competition to Google" (ConsumerWatchdog.org, 4/6/09).  This is effectively an anti-compete provision and, according to Grimmelmann, "this [MFN] clause alone might be enough to keep everyone else away" (11/8/08).  Both Grimmelmann and ConsumerWatchdog.org recommend that the court strike this clause from the Settlement (ConsumerWatchdog.org, 4/6/09; James Grimmelmann, 11/8/08)

 

The transaction costs of negotiating licenses with rightsholders for later market entrants that wish to digitize on a scale comparable to Google would be potentially prohibitive, or as Grimmelmann puts it, "utterly infeasible" (10/28/08).  This creates a significant barrier to entry for would-be competitors.  "A key to competition in the search market is having a comprehensive database of searchable materials; the more these need to be licensed, the less likely it is that a second comer can set up its own book archive" (Frank Pasquale, 2/4/09).

 

Additionally, the companies that forego the "utterly infeasible" route of licensing with individual rightsholders, and move forward with their own digitizing projects without rightsholder permission, will get sued like Google.  And because Google did not see the litigation through, those companies will not be able to rely on a finding of fair use to defend their activities.  "The result of the settlement will be to give Google a license to keep on doing what it's doing, while allowing the authors to use their now-sharpened knives to sue anyone else who tries to do the same" (James Grimmelman, 10/28/08).  Some bloggers argue that, furthermore, authors and publishers actually have a greater incentive to sue following the Settlement.  "Rightsholders and other potential plaintiffs might view this settlement as the model for all future relationships with digitization efforts—if Google pays for digitizing, why shouldn't everyone else?" (Sherwin Siy, 10/28/08).

 

However a basic assumption of this critique is that the relevant "market" is only digital books.  If the market is defined to include online bookstores and traditional bookstores, Google is not the first entrant to the market, but rather is entering a market with a lot of built-in competition. 

 

"There has never been more competition either in electronic books, or for books, in the broader electronic 'republic of letters.'  It is true, perhaps, in the narrow sense, that no other party will be able to do a mass digitization project on the scale of Google's—but that was already true. The barrier has always been the willingness to spend a lot of money for little return; the settlement doesn't change that. Meanwhile, the settlement provides absolutely no barrier to publishers providing their own digital copies, and this is in fact happening" (Tim O'Reilly, 1/25/09; see also Siva Vaidhyanathan, 10/28/08). 

 

Additionally, "Google is required to provide the familiar 'find it in a library' link for all books offered commercially as a result of the settlement . . . . This greatly weakens the market power of Google's product"(Paul Courant, 3/26/09).  As such, many commentators are convinced that Google will face healthy competition.  Others, however, such as Peter Brantley, are less persuaded; "Please. Give me a break. Google Book Search, libraries, Amazon, and brick and mortar booksellers are not mutually substitutable vendors in the marketplace. . . . I personally find Google's response, as represented, disingenuous and intellectually vapid. Common sense informs us differently" (11/8/08)

 

 

 

 

   

 

 

(ii) Monopoly over information.

 

Other commentators are concerned about the monopoly issue from a cultural/public interest standpoint, rather than a business/legal perspective.  Peter Brantley says the problem is not just the monopoly's impact on the digital book market, but Google's power and control over the vast swath of information it collects.  "The effect of raising the barrier to entry into this immense digital corpus of literature falls well beyond the value of the literature itself.  Instead, it resides primarily from the intelligence Google can mine from within the corpus, appliqued with the digital footprints left by individuals and organizations that browse the data, and who in many cases have purchased access to it" (Peter Brantley, 11/6/08).  Grimmelmann notes that the Settlement gives Google more power than accountability (1/15/09).  "There's the rub: we have created a monopoly player that will dominate one of the most important expressions of our cultural heritage and knowledge base—books" (Jonathan Miller, 3/31/09).  This issue is inextricably linked with privacy concerns about the Settlement (see Part A-6).

 

 

 

 

Note: On April 29, 2009, the Department of Justice initiated an inquiry into the antitrust issues raised by opponents to the Settlement.  "The inquiry does not necessarily mean that the department will oppose the settlement, which is subject to a court review.  But it suggests that some of the concerns raised by critics, who say the settlement would unfairly give Google an exclusive license to profit from millions of books, have resonated with the Justice Department."[7]

 

 

 

A-4.  The public would be better off if this case had gone to trial so the court could settle the fair use question.

 

Many bloggers are disappointed that the case settled and thus avoided the fair use question at the heart of Google's defense in the litigation.  A number of commentators blame Google directly.  Part of this comes from the idea that Google is the only player who could "bear the enormous legal costs" of standing up to authors and publishers to take on this fight (Peter Suber, 11/6/08). 

 

[T]he company positioned itself as being willing to fight certain lawsuits on principle in order to get precedent setting rulings on the books in support of openness, fair use, safe harbors and many other important issues. The company suggested that, rather than settle, it would fight these lawsuits knowing that it alone, with its big war chest of money, could fight some of these battles that tiny startups could never afford (Mike Masnick, 10/28/08).

 

Many blame Google because they consider the Settlement a purely self-interested decision.  Mike Madison criticizes the company for "back[ing] away from an interesting and socially constructive fair use fight in order to secure market power for itself" (10/29/08).  This criticism is premised on the notion that Google would have prevailed on the fair use issue.  Many commentators believe Google had a strong case and that the court would have found the company's actions to be fair use (see, e.g., Neil Netanel, 10/28/08; Peter Suber, 11/6/08; Sara Lloyd, 10/28/08; Paul Courant, 10/28/08).  However, this is a significant and risky assumption.  In Professor Grimmelmann's words,

 

[W]hile I thought that the fair use finding ought to be favorable, I don't necessarily expect that it will be.  This may be the most doctrinally controversial copyright issue since Grokster; scholars are split pretty much down the middle.  There was a very strong chance that a court would have found definitively against fair use, and the damage such a finding could do would be immense" (11/8/08 (emphasis added)).

 

Peter Suber likewise noted that, even though "[t]he settlement will harm fair use, . . . refusing to settle might have been more harmful" (11/6/08).  In agreeing to the Settlement, Google thus mitigated the risk of an adverse finding limiting the scope of fair use.

 

Further, if the case had gone to trial, Paul Courant argues, "even a win for Google would have left the libraries unable to have full use of their digitized collections of in-copyright materials on behalf of their own campuses or the broader public" (10/28/08).  Libraries "would have been able, perhaps, to show snippets, as Google has [been] doing, but it would have been a plain violation of copyright law to allow our users full access to the digitized texts" (Paul Courant, 10/28/08).  As such, a number of commentators, including Lawrence Lessig, believe that the Settlement "gives the public (and authors) more than what 'fair use' would have permitted" had Google prevailed on that point at trial (10/29/08).

 

Finally, many believe the Google Settlement may have left future parties litigating the fair use issue in "a far weaker position" (Neil Netanel, 10/28/08).  In part, this is just because Google's interests are no longer aligned with libraries (Sherwin Siy, 10/28/08) or other companies that might innovate in this field (Fred von Lohmann, 11/20/08) so that "further fair use fights for digital libraries start closer to square one than they would have otherwise" (Sherwin Siy, 10/28/08).  Additionally, because a giant like Google was willing to settle, plaintiffs in future suits may drive an even harder bargain.  However, Peter Suber makes an interesting legal distinction as to the fair use issue: If Google had agreed to compensate publishers for the right to scan works in the future, it would have effectively given up its fair use claim "that the scanning was lawful without permission or payment provided the company displayed only short snippets," which "would [have been] a serious loss and could [have] tie[d] the hands of search engines forever."  But, because Google "is merely sharing revenue, . . . it hasn't necessarily relinquished that claim" (10/28/08).  James Grimmelmann likewise emphasizes that "Google's choice to settle takes away no legal rights from anyone else; no one else loses the fair use argument because Google didn't chance it" (11/8/08).  Part D-2 discusses the effect on Google of its decision to settle is discussed in detail.

 

 

 

 

 

 

A-5.  The Settlement fills a role the government should be playing.

 

Various bloggers have commented that certain aspects of the Settlement seem to fill a role that the government should be playing.  Some consider this a positive thing—that this constitutes private gap-filling in the face of a "public failure."  Others see it as a usurpation of the government"s role, and view the Settlement as commercializing what should be provided as a public good.  Most of this discussion centers on the orphan works issue (i.e. what to do with in-copyright books whose authors cannot be found) and the Book Rights Registry.

 

Some commentators believe that the Settlement helps solve the orphan works problem via the Book Right Registry because it requires compiling huge databases of book copyright ownership, in-print/out-of-print information, and copyright claims.  According to James Grimmelmann, this definitively promotes the public interest: "These databases are all public goods.  They'll be useful to readers and researchers.  They're also going to be immensely useful to players in the book business. Th[e] in-print database will help libraries understand their rights under copyright law; the rights-owner database will help publishers gather the rights they need to publish new and exciting editions" (11/8/08).  Paul Courant calls the Settlement's orphan works fix "simultaneously its greatest achievement and among its most vexing features"—the former because Courant considers the Settlement an improvement on the now largely preempted proposed orphan works legislation which, he says, "would have imposed difficult and costly burdens on a potential user by requiring the would-be user to make substantial efforts to find any potential but unknown rightsholder"; the former because Courant dislikes that "unclaimed revenues go first to support the operations of the BRR," rather than to libraries (3/15/09). 

 

Lawrence Lessig agrees that the Settlement greatly harms the prospects of the Orphan Works legislation, and likewise considers that a good thing:

 

The biggest loser in this whole battle is the Orphan Works legislation. If anyone needed evidence to demonstrate that it is WAY TOO EARLY for Congress to be passing massive new bureaucratic overlays to copyright to deal with the important problem of "orphan works," this is the evidence. Let's let this private alternative develop, while Congress puts away its billion-factor balancing tests for regulating access to "orphan works" (10/29/08). 

 

Tim O'Reilly is confident that "[i]f there is significant value to be derived from these [orphan works], GBS will bring that value to the surface" (1/25/09).  Further, he believes that a government-sponsored equivalent would inhibit competition in the digital books market by "mandating that all publishers participate. . . .  As it is, we see lots of different competing approaches to bootstrapping this market.  I'd say it's opening up very nicely!" (1/25/09).

 

However, other bloggers feel strongly that this should have been accomplished through legislation (see, e.g., Peter Brantley, 3/15/09; Frank Pasquale, 10/31/08).  "This is arguably a massive re-writing of copyright for books without any legislative input" (Peter Brantley, 3/15/09).[8]  Siva Vaidhyanathan calls it a "public failure."  With respect to the rights registry, he says that "Google is doing what the U.S. Copyright Office should have done years ago.  As usual, Google is making up for public failure—the opposite of market failure" (10/28/08).  Kassia Krozser echoes Vaidhyanathan, opining that the Settlement makes Google "the new copyright office," and remarking, "call me idealistic, but it seems like we already have a government agency that, ostensibly, keeps track of this information. Unfortunately, it doesn't do so in a way that facilitates doing business in the modern world" (10/28/08).  The problem these commentators see with the Settlement's solution, as compared to legislation or other government action, is that the public interest was not explicitly represented during settlement negotiations, whereas it would be naturally represented by elected decision makers in any legislative process.  However this concern might be alleviated by the fact that the court must approve the Settlement.  In a way the public, via the court, arguably actually has the final say.  Should the court approve the Settlement, James Grimmelmann proposes adding library and reader representatives to the Registry's board to compensate for the earlier lack of representation (11/08/08).

 

A second problem of the "public failure" involves the commercialization of content that arguably should be made available as a public good.  "To digitize collections and sell the product in ways that fail to guarantee wide access would be to repeat the mistake that was made when publishers exploited the market for scholarly journals, but on a much greater scale, for it would turn the Internet into an instrument for privatizing knowledge that belongs in the public sphere" (Robert Darnton, 2/12/09).

 

Finally, according to Jef Pearlman, while it might be acceptable as a general principle that the outcome of the Settlement was achieved via private, rather than public means, the Settlement does not solve the full problem the government would address.  "While it's a step in the right direction (and has the benefits described), it's not a very big one, nor is it enough to obviate the need for Congress to step in. . . . [W]hile it helps Google index orphaned books and helps the public get access to them, it does nothing for non-book works or for anyone other than Google who wants to make use of orphaned books" (Jef Pearlman, 10/31/08).

 

 

 

   

 

A-6.  The Settlement creates privacy concerns.

 

A number of commentators have raised concerns about the privacy of Google Book Search users.  Grimmelmann calls the existing privacy protections in the Settlement (i.e. the requirement that the Registry protect rightsholders' rather than users' information) "insufficient" (11/8/08).  Specific concerns include both the tracking of users' information (e.g., demographic data, search patterns, etc.) and the use to which such information will be put (e.g., data being subject to subpoena, potentially discriminatory pricing based on collected data, and profiling by usage patterns for the purpose of targeting advertising).

 

The day the Settlement was announced, Siva Vaidhyanathan asked: "Will Google compile personally identifiable information (via a login to Google Docs or some other service) of terminal users? Will Google collect search and usage data from these library terminals to "improve" searches? Will such data be open for study by the publishers? Scholars? How long will Google retain such data, if it compiles it at all?" (10/28/08).  Vaidhyanathan later blogged about the Google legal team's response to his questions:

 

The response from Google's lawyers exhibited an openness to examine this potential problem and an indication that much about the design of the program was yet to be determined as early as November 2008. Google lawyers had not agreed in the settlement to share personal information with publishers, but the company might share aggregate data collected through the service. Although Google had not yet designed the system, the legal department predicted that users would not have to log in to Google to use the public terminals. The legal department assured me that the company would "build in privacy protections" with the guidance and assistance of the library partners (11/6/08).

 

While this response is somewhat reassuring, the fact remains that Google has discretion regarding the extent and nature of its tracking and use of users' information.  And even if Google does not require users to log in to use the search service, readers will have to create accounts in order to buy digital books and log in to read the books they have previously purchased.  "This is a huge change in the privacy we traditionally enjoy in libraries and bookstores. . . .  If Google becomes the default place to search, browse, and buy books, it will be able to keep unprecedented track of what you read, how you read it, and collate that with all the other information it has about you" (Fred von Lohmann, 10/31/08).

 

Thus Professor Grimmelmann has recommended specific restrictions that should be added to the Settlement provisions.  He suggests that it "should contain explicit privacy guarantees that user information and reading habits should be monitored only [to the] minimal extent necessary to audit for security and billing, that no such data be used for any other purpose, that all such data be promptly destroyed, and that Google not reveal any information about any user or users' reading habits to any other entity, including the Registry" (James Grimmelmann, 11/8/08).

 

 

 

   

A-7.  The Settlement establishes a scary precedent.

 

Some commentators are worried about the precedent the Settlement sets.  Specific concerns include: (i) the potential limiting effect this might have on future digitizers' chances of prevailing on the fair use question (see Part A-4); (ii) that future plaintiffs "might view this settlement as the model for all future relationships with digitization efforts," i.e., that this will incentivize rightsholders to litigate with the expectation of receiving a settlement (Sherwin Siy, 10/28/08; see also Noelle Skodzinski, 3/1/09); and (iii) that this potentially undermines traditional, statutory intellectual property rights.  "[T]he publishers and the AG have, through this negotiation, validated in a practical sense the business model of taking intellectual property of writers, making money off it, and then, if enough writers and publishers scream loudly enough, giving in just enough to keep what you established" (Erik Sherman, 10/29/08).

 

Other commentators have less specific concerns about the precedential consequences of the Settlement, but reveal a gut reaction suggesting a general sense of unease at the power the Settlement might confer on Google.  "My sense is that today, many publishers will be scratching their heads trying to work out how they feel about the news. . . . Thing is, and this is where the head scratching comes in, it still just feels plain scary that Google has taken yet another giant leap towards dominating and shaping the future of publishing" (Sara Lloyd, 10/28/08).[9]  Even if this particular settlement provides a good result for the public, and Google turns out to be a trustworthy caretaker of our cultural heritage,[10] it might not be a good thing as a matter of precedent for the public/government to allow for-profit companies to hold so much power over so much important cultural information.

 

 

 

   

A-8.  There might be negative consequences if certain provisions of the Settlement do not run as smoothly as hoped, or fail altogether.

 

A number of bloggers have questioned what will happen if the Settlement is approved, and then things fall apart, either because Google backs out of the Project (Adam Corson-Finnerty, 10/31/08: "My biggest concern about the GBS is that Uncle Google will decide it is a bad investment and back out of it. The Settlement envisions that possibility, and provides a mechanism for transferring the deal to another entity or entities, should Google back out") or because the Registry proves unequipped to deal with unanticipated issues that are sure to arise (Eric Goldman, 11/27/08: "Personally, I think this overall architecture has a high risk of failure – no matter how long the contract, it's impossible to anticipate everything by contract to ensure successful competition over time") (See also Parts D-3 and D-4).

 

Karen Coyle characterizes the issue as a question of sustainability:

 

Libraries have been in existence for thousands of years, and modern libraries in this country have a history that is measured in centuries. Google has been in existence for about 15 years. Do any of us expect that Google will be around in 200 years? What are the plans for this content should Google cease to exist, or decide it doesn't want to continue to support this product? Some libraries will have copies of scanned books, but is there a plan to place in escrow all of the scans? (1/28/09).

 

 

 

 

B.   How the Settlement Impacts Libraries

 

 

B-1.  The Settlement is of great benefit to libraries, in terms of both increased access to books and improved preservation options. 

 

Google emphasizes in its official blog that the Settlement "will further the efforts of our library partners to preserve and maintain their collections while making books more accessible to students, readers and academic researchers" (Googleblog, 10/28/08) and many commentators agree that libraries will benefit greatly from the Settlement (see, e.g., Kirk Biglione, 10/28/08; Adam Corson-Finnerty, 12/31/08; Lawline, 10/28/08; Chris Snyder, 10/28/08; John Timmer, 10/28/08; Alan Wexelblat, 10/28/08).

 

Bloggers point to a number of features of the Settlement that seem advantageous for libraries. Many focus on the provision that grants public libraries "free and unfettered access to the entire contents" of in-copyright, out-of-print books, which arguably include "the vast majority of books in existence" (John Timmer, 10/29/08; see also Kirk Biglione, 10/28/08). (Others read the provision to be less monumental, although still a boon for libraries: "Public and nonprofit libraries will get at least some minimal all-you-can-drink privileges at the fire hose" (James Grimmelmann, 11/8/08).)  Adam Corson-Finnerty explains, "Public and college libraries get one free license for one machine in each library branch (or for every 4,000–10,000 students) (12/31/08).  And, "[a]s the product develops, academic libraries will be able to license not only their own digitized works but everyone else's. Michigan's faculty and students will be able to read Stanford and California's digitized books, as well as Michigan's own" (Paul Courant, 10/28/08).

 

Many also point to the fact that "[l]ibraries that allowed their books to be scanned get back digital copies, which they can use for accessibility purposes, and to replace damaged or lost copies of physical books" (James Grimmelmann, 11/8/08; see also Susan Crawford, 10/29/08).  "While there will be usage restrictions on the in-copyright ones, the digital copies of the public-domain ones are not to be sneezed at" (James Grimmelmann, 11/8/08), and the preservation function of the digital copies has been widely lauded. 

 

Another key feature of the Settlement is that it "continues to allow the libraries to retain control of digital copies of works that Google has scanned in connection with the digitization projects" (Paul Courant, 10/28/08).  Paul Courant, the University Librarian and Dean of Libraries at the University of Michigan, emphasizes that, "[w]e continue to be responsible for our own collections. Moreover, we will be able to make research uses of our own collections. The huge investments that universities have made in their libraries over a century and more will continue to benefit those universities and the academy more broadly" (10/28/08).

 

B-2.  Under the Settlement, libraries will pay too much for too little access.

 

While many have lauded the free access to the Google Book Search database granted to participating libraries under the Settlement, others are skeptical that libraries are getting a good deal, particularly given all they have contributed to the project (for example, the huge investment in purchasing, preserving and cataloguing the books they have allowed Google to scan for free) (Karen Coyle, 12/4/08).  As Professor Grimmelmann describes it, "[t]he service is stingy by default: colleges get one terminal per 10,000 students, and public libraries get one per building, and Google isn't obligated to provide the service at all" (11/8/08).  Additionally, many lament that libraries will not have remote access to the database—rather, users must be physically present (Karen Coyle, 1/28/09).  Parties on all sides seem to agree that libraries will generally need more access than what they are granted for free under the Settlement (See, e.g., Paul Courant, 10/28/08; Wade Roush, 10/31/08).  As librarian Karen Coyle describes the problem, "[c]learly, for any medium or large libraries, one access will not be sufficient. It is also clear that 'free' has its costs, and in this case one cost will be the management of a very scarce resource" (1/28/09; see also Karen Coyle, 12/30/08).  The question up for debate is whether the price libraries will pay will be fair and affordable.

 

Some librarians feel that the aspect of the Settlement requiring libraries to pay anything for access beyond the single free terminal is an unfair and "painful aspect[] of the agreement because it seems to ignore the public costs that went in to the purchase, organization, and storage of those works by libraries" (Karen Coyle, 11/22/08); see also Richard K. Johnson, 12/23/08; Open Content Alliance, 11/5/08).  The Open Content Alliance echoes this view, noting that "[l]ibraries have made huge investments in the books that Google is digitizing. Not only did they purchase, process, shelve and care for the books, over many years, but they continue to carry significant overhead costs for their continued use (including Google's use!). . . .  And yet libraries receive 0% in this proposed settlement while Google gets 37%. What kind of partnership is this?" (12/6/08).  However, some bloggers have countered that Google has also spent a great deal of time and money on the project, and libraries would need to make these investments regardless of the Google Book Search project.

 

Others commentators worry that the cost of buying subscriptions sufficient to satisfy their denizens' needs will be too expensive for public libraries' already constrained budgets.  "Indeed, pricing is apparently one of the major issues that has kept several of the libraries that were initially part of the Google Library Project from endorsing the settlement" (Wade Roush, 10/31/08).  Harvard University Library Director Robert Darnton explained Harvard's reasons for ending its partnership with Google as centered on uncertainty about pricing and access: 

 

As we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher education community and by patrons of public libraries[.] . . .  The settlement provides no assurance that the prices charged for access will be reasonable, . . . especially since the subscription services will have no real competitors [and] the scope of access to the digitized books is in various ways both limited and uncertain (12/30/08; see also Robert Darnton, 2/12/09).

 

Karen Coyle seems to agree with Darnton, commenting that while the costs might seem minor to those who do not work in the library field, "[i]t isn't known what this will cost, but unless it is ridiculously cheap, it eats into the already strained budgets of the libraries. . . .  I often say that public libraries are like old-age pensioners: they're on a fixed income that doesn't keep up with inflation, much less the demand for more services" (12/30/08).

 

Nevertheless, some librarians, such as Paul Courant and Adam Corson-Finnerty, have spoken out to dispute that libraries will be charged exorbitant amounts under the Settlement (See Adam Corson-Finnerty, 12/31/08; Paul Courant, 10/28/08).  As Courant explains it,

 

I never doubted that we were going to have to pay rightsholders in order to have reading access to digitized copies of works that are in-copyright. Under the settlement, academic libraries will pay, but will do so without having to bear large and repeated transaction costs. . . .  I expect that the prices will be reasonable, both because there is helpful language in the settlement and because of my reading of the relevant markets (10/28/08).

 

Courant answers Darnton's worry that the costs of subscriptions to Google Book Search will take the path of subscriptions to medical and scientific journals, which routinely cost libraries over $25,000 a year per periodical (Robert Darnton, 2/12/09):

 

[B]ecause there are many ways of getting access to most of the books sold by Google under the settlement, rapacious pricing won't work. The settlement requires "find it in a library" and extensive free preview, as well as a free access terminal in every public library building in the country. These features could not be more different than the business practices employed by many publishers of scientific, technical, and medical journals (3/26/09).

 

Courant also insists that "[t]here is another reason to believe that prices will not be 'unfair'[:] . . . Google is far more interested in getting people to 'google' pretty much everything than it is in making money through direct sales. The way to get people to come to the literature through Google is make it easy and rewarding to do so" (2/4/09).

 

 

 

 

 

 

B-3. The digital copies libraries will be provided under the Settlement are inadequate for preservation purposes.

 

The digital copies of their books that participating libraries receive from Google have been touted by some as an excellent tool for the important preservation work libraries do (see, e.g., Googleblog; see also Paul Courant, 10/28/08; Susan Crawford, 10/29/08).  However, others have suggested that Google's scans of the books are actually not of sufficient quality to serve a serious preservation function.  As Adam Corson-Finnerty explains, "Google has not undertaken its . . . scanning project with preservation in mind. The goal is current online access. Therefore, the initial scans were considered 'good enough' if they could be easily read easily [sic] on a screen, and if 95-99% of the words could be 'recognized' by OCR software (which converts pictures of words to machine-readable—searchable—text)" (12/31/08; see also Karen Coyle, 1/28/09).  As Corson-Finnerty points out, "[t]his is a perfectly understandable decision, from a business point of view," but from the preservation perspective, the scans are deficient: they have "missed pages, pages that are blurry, pages that are cut off, foldouts that are skipped or distorted, meaningless word translations, and so on" (12/31/08; see also Siva Vaidhyanathan, 10/28/08).  Furthermore, the Settlement "is between [Google] and authors and publishers. Artists, photographers, and illustrators are not included. . . . [T]his [may] mean the images in an in-copyright book will be blanked out," which would be a great loss (Adam Corson-Finnerty, 12/31/08). 

 

In addition to quality issues, bloggers have also expressed concern about the future of the scans should the Google Book Search project be terminated, or should a particular library partnership come to an end.  Peter Brantley notes that, while "fully cooperating libraries" are permitted to retain "Library Digital Copies" (LDCs), clause 4(d) of the Settlement "states that the Library must destroy its LDC if the agreement with Google is terminated":

4(d) Termination by Library. Library may terminate this Library Agreement at any time for any reason or for no reason, upon thirty (30) days' notice to the Registry. In the event of such termination, Library shall delete or permanently render unusable its LDC, and shall certify to the Registry in writing that it has done so. This obligation shall survive termination pursuant to this Section 4(d) (Termination by Library) (Peter Brantley, 11/1/08 (emphasis added)).

Karen Coyle raises more general concerns, noting that "[l]ibraries have been in existence for thousands of years" and asks, "Do any of us expect that Google will be around in 200 years? What are the plans for this content should Google cease to exist, or decide it doesn't want to continue to support this product? . . . [I]s there a plan to place in escrow all of the scans?" (1/28/09).  Francine Fialkoff, Editor-in-Chief of the Library Journal, likewise sees "the folly of leaving the future to the marketplace" and worries that "[w]e have no guarantee that Google will support its book database indefinitely" (12/15/08).  Given these concerns and uncertainties, many commentators have concluded that the Settlement does not provide libraries with digital copies of their collections that can adequately serve libraries' important preservation function.

 

 

B-4.  Libraries' participation in the Settlement may violate their legal ethical obligations.

 

Of those commentators who have argued the Settlement actually does not represent a good deal for libraries, some have also suggested that participating libraries are potentially violating their legal and ethical obligations (see, e.g., Karen Coyle, 1/28/09; Siva Vaidhyanathan, 10/28/08).  As Karen Coyle points out, "[t]here are numerous legal requirements on libraries, especially publicly funded libraries, . . . [a] key one of [which] is privacy" (1/28/09).  The privacy issues of the Settlement are some of the most concerning to many commentators (see Part A-6).  Google's primary business model has been delivering customers to advertisers, and many commentators have noted that libraries simply "cannot participate in such a model[:] . . . public institutions are bound by state laws to ensure the confidentiality of the use of our materials, and . . . generally extend that to outside services contracted by the library" (Karen Coyle, 1/28/09).  It is thus arguably a huge problem for participating libraries that "[t]he only mention of confidentiality in the agreement is the confidentiality of rights holders" (Karen Coyle, 1/28/09).  James Grimmelmann notes that, "[e]specially for . . . institutional subscriptions, there's a real danger that readers could be identified and tracked through their precise reading habits, page by page, minute by minute" (James Grimmelmann, 11/8/08).  Indeed, Grimmelmann points out, the Settlement "explicitly requires that libraries which open up their digital copies for scholarly and classroom uses of less than five pages must "keep track of and report[] all such uses of Books to the Registry"" (11/8/08).  Siva Vaidhyanathan asks pointedly,

 

Isn't this a potential privacy nightmare for libraries? Will Google compile personally identifiable information (via a login . . .) of terminal users? Will Google collect search and usage data from these library terminals to "improve" searches? Will such data be open for study by the publishers? . . .  How long will Google retain such data . . . ? (10/28/08; see also Fred von Lohmann, 10/31/08).

 

Coyle also notes that "[p]ublicly funded institutions may be bound by the first amendment, and all libraries are champions of intellectual freedom" and worries that, given that "[w]e know that Google does censor other products, and that publishers withdraw controversial books," libraries could unknowingly violate their mission to further academic freedom (1/28/09).  Coyle also explains that library services must comply with the Americans with Disabilities Act, and infers an implicit requirement that public libraries provide equal access to all.  Coyle explains that "[t]his generally excludes any services that require payments by end-users (and . . . there is a statement in the settlement that users of the free subscription . . . available to public libraries may need to make royalty payments for any printing)" (Karen Coyle, 1/28/09).  Robert Darnton echoes this concern, noting that "[l]ibraries exist to promote a public good: 'the encouragement of learning,' . . . 'Free To All.' Businesses exist in order to make money for their shareholders . . . . [T]here is no getting around a fundamental contradiction. To digitize collections and sell the product in ways that fail to guarantee wide access would be . . . [a grave] mistake" (2/12/09).

 

 

 

B-5.  Google is usurping libraries' role—libraries should have undertaken this project themselves.

 

Given the potential problems for libraries that the Settlement presents—including uncertain pricing, insufficient access, and possible conflicts with libraries' legal and ethical obligations—some commentators have suggested that libraries would have done better to create a digital book database themselves.  Many worry, however, that the Settlement will undermine attempts by libraries to do that:

 

If. . . libraries had managed to digitize the books on their own, the outcome would have likely have [sic] been entirely different (if any lawsuit had been brought, which might not have happened). . . . Unfortunately, the concept of digitization of the contents of libraries has now been tainted with the air of commercialization and has earned the wrath of the publishers and authors. The Google/AAP settlement has created a mechanism that ignores the inherent rights of the libraries, but also makes it more difficult for them to justify undertaking their own digitization project (Karen Coyle, 12/4/08).

 

Sherwin Siy likewise suggests that "libraries and archives that may wish to provide digital services that are technologically similar to Google's efforts [will] . . . start closer to square one than they would have otherwise" (10/28/08), and Jonathan Miller concedes that "this 800lbs gorilla in the room will definitely dampen others' enthusiasm to embark on mass digitization projects" (3/31/09).  More specifically, "[p]ublic libraries currently cannot digitize their collections without a licensing agreement between it and the book's publisher. Thus, the public library has been effectively cut out of the digital revolution—Google and the publishers made the deal and will dole out digital books to public libraries for a fee" (Kristin Cichocki, 10/30/08). 

 

Others, however, dispute this characterization of the situation, arguing that libraries simply would not have dedicated the funds and manpower to undertake such a digitizing project themselves.  Chris Snyder opines that, "only Google has the will—and probably the wherewithal—to tilt at such a windmill" (10/28/08).  Tim O'Reilly likewise argues that "no other party will be able to do a mass digitization project on the scale of Google's—but that was already true. The barrier has always been the willingness to spend a lot of money . . . before the settlement, . . . no one but google was spending the money to digitize these works anyway" (1/25/09).  Paul Courant is more optimistic that libraries might have been able to complete a comparable project on their own, but concludes that it would have taken far too long to negotiate with rightsholders, "in some cases book by book, and publisher by publisher," and therefore the Settlement is preferable (10/28/08).

 

Still others conclude that the Settlement should not deter libraries from creating their own databases, and indeed propose that libraries do just that.  Answering Courant's argument that it was better to settle, Siva Vaidhyanathan explains that he is "sympathetic to the claim that something is better than nothing and sooner is better than later," but "sympathy remains mere sympathy [and] [t]hese claims are not convincing when one considers just how great an alternative system could be, if everyone would just mount a long-term, global campaign for it rather than settle for the quick fix" (10/28/08).  The Open Content Alliance encourages the library community to remain open-minded and undaunted, arguing that "[r]ather than accept the Google settlement . . . as a fait accompli, or as an obligatory blueprint for the future, the appropriate response is to consider its implications for the future and take all steps to build the world we want to live in. . . . [W]e should not assume that Google Book Search is the only way, or even the best way, to organize and make available our cultural heritage" (11/5/08).  Karen Coyle also urges her library colleagues onward: "We have to be willing to throw off the past and learn to innovate. This is a new information world, and we must be full participants in it. To be visible we must embrace the Web as our data platform . . . ." (1/28/09).

 

Adam Corson-Finnerty implores his fellow librarians, "let's just do it ourselves," offering the following proposal: "That academic libraries and university presses undertake a comprehensive program to scan books of academic value that are out-of-print. The goals of this program would be preservation, access, rationalization of collection storage, electronic repurposing of content, and the creation of a research database" (4/6/09).  Corson-Finnerty puts forth that, "linked with a print-on-demand and e-publishing program, this project could be self-sustaining," and argues that while parts of the project would duplicate Google Book Search, a library-run program would solve the preservation, pricing and access problems inherent in the Settlement terms (4/6/09).  He stresses that "Google does not have the exclusive right to digitize and re-purpose public domain and out-of-print books. Any enterprise, whether for-profit or not-for-profit, can gain the same rights that Google has, through agreement with the Book Rights Registry" (4/6/09). 

 

Brewster Kahle of the Open Content Alliance echoes Corson-Finnerty's recommendation that libraries create their own digital database, arguing that such a project would not be prohibitively expensive, and libraries could do it better themselves: "building a great library of digital books the size of Harvard or the Library of Congress would require a one-time cost of $300M, for the highest quality scans. . . . As federal spending goes, it's a drop in the bucket (remember the $231 million Bridge to Nowhere?)" (3/22/09).  By Kahle's calculations, "if just 100 top libraries in the US were to put 5% of their acquisition budgets into digitizing, we could have a 10 million-book digital library done in about 5 years" (3/22/09).

 

 

C.  How the Settlement Impacts Rightsholders

 

C-1.  The Settlement is great for authors and publishers because it creates new markets, new distribution channels, and other commercial opportunities for their works.

 

Many bloggers believe that the Settlement is great for rightsholders. The primary way authors and publishers are thought to benefit (in addition to receiving a portion of the initial settlement money) is by the creation of new markets and new distribution channels for their works.  According to Richard Sarnoff, Chairman of the Association of American Publishers, "[a]s publishers, we must encourage the widest possible digital discovery for books while ensuring the best possible commercial prospects for the usage (or 'consumption') of those books across both print and electronic markets. When these two goals overlap, there is an interesting line-drawing exercise to be done, which can lead to pioneering new access and commercial models" (2/19/09).  The Settlement draws such a line.  The new "commercial models" include rightsholders' receiving a portion of the proceeds from the sale of digital books and online advertising.

 

Many commentators focus on the orphan works issue and the fact that Google will be scanning "out-of-print works we're not likely to get back into 'print' any other way" (Chris Snyder, 10/28/08).  Chris Snyder calls the Settlement outcome "a bit of a windfall for the content holders" (10/28/08).  In describing the terms of the deal, Alan Wexelblat insinuates the same, noting that the Book Rights Registry

 

would . . . remunerate part of the fees to copyright holders, in much the way that ASCAP handles rights payments for musical works.  In effect, copyright holders will make money on books that they aren't publishing, which is strangely like getting paid not to grow crops because many of these publishers deliberately let these books fall out of publication and never bothered to digitize them, even as they sat on the rights (10/28/08). 

 

And according to Jef Pearlman, "[t]he creation of a [Book Rights Registry] does good both for the authors of currently-orphaned works and for those who want to use them: It provides a way for authors to effectively un-orphan their books and receive compensation, and it provides a way for users to locate previously-unknown rights holders and obtain the rights to use those works" (10/31/08).

 

In addition to collecting money from Google's activities, rightsholders can build on those activities to take advantage of additional commercial opportunities.  "If there is significant value to be derived from these 'under copyright but out of print' books, GBS will bring that value to the surface, and will then get those works on the radar of those who own those rights (if those rightsholders still exist.) Those parties can then start to exploit those rights through other available channels" (Tim O'Reilly, 1/25/09).

 

However, a number of commentators worry that rightsholders are not receiving sufficient compensation under the terms of the Settlement (Peter Brantley, 3/15/09; Martyn Daniels, 10/29/08), or that there will be hidden costs that decrease rightsholders' proportion of the money (Authorlink, 11/08/08).  Kassia Krozser is skeptical about how much of the initial settlement money will actually reach authors, "in light of how much money has reached musicians in other settlements" (10/28/08).  Peter Brantley acknowledges that "publishers and authors see the settlement as opening the door to a new path of product distribution," however he believes "they are missing a far larger, and far more important, value that they will never be able to touch" under the Settlement: specifically, "mining this vast collection of information, unearthing its store of recorded knowledge and mapping its unseen conceptual relationships, and then integrating that knowledge across a wide range of information-based products, ultimately supporting advertising revenue" (11/6/08).  Brantley understands the Settlement to mean that "[t]hat revenue would be effectively forever prohibited to other parties" (11/6/08).  Finally, Brantley points out an underlying tension between rightsholders' interests and public access to their works: "As I understand it, rightsholders fear[] that having unhindered access to books online at libraries might (among other issues) encourage libraries to decelerate buying print books, thereby reducing royalties to authors and profits to publishers. In this equation, more public access = less revenue" (Peter Brantley, 1/29/09).

 

 

 

 

 

C-2.  The Settlement is not representative of all the interests at stake, and violates the rights of parties who were not represented during negotiations.

 

The scope of the settlement class is a specific point of criticism raised by a few bloggers, who argue specifically that the class did not represent all the parties that should have been included.  According to C.E. Petit, the Settlement should be rejected by the court because there are "gaping holes in representation" of authors and "all of the designated class representatives [for publishers] are publishing arms of multinational media conglomerates" which is "entirely unacceptable" (Oct.-Nov. 2008).  Peter Brantley also views this as a problem:

 

[T]he proposed Google Book Search settlement is embedded in a set of conceptions about books, reading, and information access which is as profoundly obsolescent as the printed Encyclopedia. This settlement was crafted by well-established actors: authors and publishers whose primary cognitive map of the world of books was established in 1965, and these days that they inhabit are only a reaction to it. . . . [L]et us call this for what it is: an appropriation of sponsorship of access to our culture that is inadequately informed by imagination, possibility, and fairness. . . . The settlement describes a world of time past, not a world of possibilities (1/29/09).

 

Petit and other bloggers assert that approval of the Settlement would violate the rights of these rightsholders and other unrepresented parties.  "This settlement was negotiated by the parties in the suit and there has been no opportunity to represent and protect the broad interests of all consumers," said a consumer advocate with Consumer Watchdog. "This deal simply furthers the relatively narrow agenda of Google, The Authors Guild and the Association of American Publishers" (ConsumerWatchdog.org, 4/6/09).

 

 

 

 

 

C-3.  The opt-in rights-claiming system will leave many rightsholders uncompensated.

 

Many commentators are concerned about the claims of authors and publishers under the opt-in rights-claiming system.  Specifically, they worry that the process will leave many rightsholders uncompensated.  "An entire group of authors that the notification will not reach are "non-active" authors of orphan works, who do not realize that they may have rights to titles digitized by Google under the proposed settlement" (Peter Brantley, 3/15/09).  Additionally, many non-author successors-in-interest to authors may not know about their rights, or may not be located for notification.  A handful of strongly anti-Settlement bloggers sees this as theft.  "[J]ust because a work is out of print and its ownership unclear, does not entitle it to be stolen . . . . Why does Google get to keep the orphan cash?" (Martyn Daniels, 11/3/08, Part 1 & Part 2).

 

However a number of bloggers believe that the opt-in system appropriately relieves Google and the Registry of the burden of affirmatively seeking out every potential rightsholder.  They believe that the Registry "provides a financial incentive for those authors to come forward, [to] receive the compensation that the BRR has collected on their behalf" (Jef Pearlman, 10/31/08).  According to Alan Wexelblat, "the existence of the Registry and its potential as a cash source should cause people to step forward and reclaim abandoned copyrights.  Definitive copyright ownership is a boon to many people; for example, those who want a simple way to find such rights holders and negotiate other forms of reuse" (10/28/08).  There is also something to be said for the argument that rightsholders who are so careless about keeping track of their rights may not care about the use to which their work is put, so their works should be made useful rather than be lost to the public.  James Grimmelmann believes that the "system will encourage some copyright owners to come forward, will enable many sensible uses of many books for which no copyright owner can be found, and will help in cleaning up the records to help track down copyright owners in general" (11/8/08).

 

 

 

C-4. Concern about the Settlement's opt-out provision.

 

Some commentators are concerned about the Settlement provision requiring dissenting rightsholders to opt out of the Settlement (or waive any related claim against Google), especially given the looming deadline.

 

[T]ime is of the essence. Because this is a class-action suit filed on behalf of authors and publishers, virtually anyone who owns copyright interest in a book is included in this settlement, unless they opt out by the May 5 deadline. . . . Those who do not opt out of the settlement will be "bound by the court's rulings" and will relinquish their rights to sue Google regarding this matter in the future" (Noelle Skodzinski, 3/1/09).[11] 

 

Other bloggers do not like the idea, regardless of time constraints.  Martyn Daniels calls the system "the opt out not opt in land grab by default" (12/18/08; see also Chris Castle, 12/31/08).  Andrew Brenneman notes that this sets an opt-out precedent for future digital content aggregators. "Therefore, any type of media or information is fair game for an aggregator to copy and serve, as long as mechanisms are in place for the original creator to alert the aggregator if he does not want his content to be included in the program" (3/1/09).  Brenneman thinks this is a slippery slope.  Comparing Google Book Search's opt-out system to You-Tube's, he says "if we are truly in an opt-out world, why wait for a consumer to upload the video? Why not take feeds directly from cable, digitize the programming, and index and serve it, as long as there is a way for rights holders to opt out?  Ridiculous, isn't it?" (3/1/09).

 

 

 

 

 

C-5.  Foreign rightsholder opposition.

 

A handful of bloggers have addressed the effect of the Settlement on foreign rightsholders, some of whom have questioned how the Settlement would impact foreign works.  "Google is in fact digitizing many non-U.S. books.  How can these books be included in this settlement (presumably they are subject to non-U.S. copyright laws and controlled by non-U.S. publishers)? Will they be excluded from the Book Search program, even to U.S. users of Google?"(Mass Law Blog, 10/29/08).

 

Commentators have also noted seemingly unanimous opposition to the Settlement from foreign parties.  The German Booksellers and Publishers Association, the French booksellers associations, the French Publishers Association, the Federation of European Publishers, the European Booksellers Federation, and the UK Booksellers Association have all spoken out against the Settlement (Authorlink, 11/08; Martyn Daniels, 12/18/08).  Foreign rightsholders' organizations seem particularly concerned about Google's potential monopoly.  

 

The British Booksellers Association, anticipating that Google will attempt to impose the registry on UK authors and publishers, agreed: "As such a dominant player in the online world, Google will now occupy a unique gateway position that, if abused, could easily create a de facto monopoly.  A situation where competition is removed from the market place by placing the keys in the hands of one company cannot, ultimately, be good for the consumer. This is a bridge too far," the British Booksellers Association noted (Chris Castle, 12/31/08). 

 

According to Authorlink, "[t]he most adamant reaction came from the German booksellers and publishers association, The Boersenverein. The group has warned that the agreement is a Trojan Horse which "will enable Google to achieve worldwide control of knowledge and cultural [sic]"" (Authorlink, 11/08).

 

 

 

 

 

D.  How the Settlement Impacts Google

 

 

D-1.  The Settlement leaves Google in a very good position.

 

The vast majority of commentators feel strongly that Google will greatly benefit if the Settlement is approved.  Indeed, Kassia Krozser echoes many bloggers when she describes the Settlement as "a big win for Google" and emphasizes that "Google is getting lots of access to books and the potential revenue increase this access means" (10/28/08).  Kirk Biglione concludes that, "[i]t's hard to overstate how important this agreement is for Google.  Google has essentially acquired the digital rights to the long tail" (10/28/08).  Indeed, Andrew Albanese of the Library Journal states that Google "has in theory just universally licensed a medium that has contained the whole of human history for $125 million—pocket change to the well-capitalized search giant" (10/20/08).  And given that "Google has mastered the art of turning arcane search phrases into money[,] . . . [i]n the future they'll have a lot more content to monetize" (Kirk Biglione, 10/28/08).  Adam Corson-Finnerty elaborates on the new revenue streams available to Google, including the sale of e-books to consumers and subscription databases to libraries, universities, print shops, and various commercial entities, as well as book search advertising revenue  (12/31/08).

 

Biglione also opines that Google will have a "huge competitive advantage" because the new content it has access to will be unavailable to other search engines (10/28/08).  Recalling some of the discussion in Parts A-2 and A-3 about monopoly and antitrust concerns, Professor James Grimmelmann describes the Settlement as a "Google-only deal," emphasizing that the structure of the agreement will effectively ensure that Google retains a competitive advantage in this field: "The result of the settlement will be to give Google a license to keep on doing what it's doing, while allowing the authors to use their now-sharpened knives to sue anyone else who tries to do the same. At that point, of course, Google would be delighted for the authors to succeed, since it keeps the competition at bay" (10/28/08).

 

 

 

 

 

D-2.  Google was wise to settle to avoid litigating the fair use question.

 

Many bloggers believe that Google would have prevailed on its fair use defense had it taken the issue to trial, and thus lament that Google agreed to settle (see Part A-4).  However, some commentators have acknowledged that the issue was not so cut and dry.  Professor Grimmelmann explains that he is unsure how a court would have decided the question, given that "[t]his may be the most doctrinally controversial copyright issue since Grokster [and] scholars are split pretty much down the middle" (11/8/08).  Professor Peter Suber echoes that concern, noting that he is "not at all sure that litigating the claim to the end would have been a victory for Google and fair use," and concluding that, while "[t]he settlement will harm fair use, . . . refusing to settle might have been more harmful" (11/6/08).

 

While many of the commentators discussing the possibility that Google might have lost on the fair use issue focus on the damage that such a result would have done to the public interest (see Part A-4), Grimmelmann and a handful of others have also discussed Google's particular interest.  Professor Grimmelmann points out that, "even if we scholars would like a fair use fight, it's not our call to make here. It's Google's. . . .  Having stepped up to the plate to risk a lawsuit—and having gotten beaned with one—Google now has the right to choose whether to settle" (11/8/08).  Furthermore, as Fred von Lohmann points out, "the settlement has one distinct advantage over a litigation victory: it's much, much faster" (10/31/08).  Even if Google would ultimately have prevailed, "[l]itigating all of those fair use questions could easily have taken a decade or more," which would arguably not be the best outcome for the public, and would certainly not be preferable from Google's perspective (Fred von Lohmann, 10/31/08).  Librarian Georgia Harper explains,

 

For fair use to cover digitizing for indexing would have been nice, but it would not have given us this (and there was the chance Google could have lost, though I firmly believed Google would have won). Maybe we could have had both. A S.Ct. win for Google might also have led to a deal, but at much greater expense, much later. Google clearly felt it wasn't worth it, strategically, to add that piece to the picture. What Google did, worked (12/31/08).

 

 

 

 

 

D-3.  The Google Book Search project itself may not have been a good investment, and therefore settling was not to Google's benefit.

 

Although the conventional wisdom among commentators is that the Settlement represents a great deal for Google, a few bloggers have considered that the Settlement may actually not be so clearly to Google's benefit.  Some have raised questions about whether Google Book Search itself is a wise investment, and therefore whether the Settlement is necessarily an obviously good thing for Google.  Adam-Corson Finnerty believes that "the Google Book Settlement is good for publishers, good for authors, good for libraries, and good for the people. . . . My biggest concern about the GBS is that Uncle Google will decide it is a bad investment and back out of it. The Settlement envisions that possibility, and provides a mechanism for transferring the deal to another entity or entities, should Google back out" (Adam Corson-Finnerty, 12/31/08).  Karen Coyle expresses similar concerns: "I see the possibility that the Google book product turns out not to be profitable, that it doesn't gain enough subscribers and it doesn't sell enough out-of-print books to make it worthwhile. Google drops the product, as it has dropped other products that just didn't pan out" (1/28/09).

 

Peter Brantley notes that under the Settlement, "Google could easily become the dominant distributor for online literature through licensing" (2/13/09).  While this might sound like a great place for Google to be in terms of revenue generation, Brantley points out that "[t]his is a novel burden Google is assuming, with which it has no prior experience, and one that inserts itself between rightsholders and consumers (never a pretty place)" (2/13/09).  Brantley elaborates on the risk inherent in Google's position, raising the possibility that "GBS traffic does not generate adequate advertising revenue via click-thrus to recoup the $200 million plus Google will expend through the settlement, plus its scanning and ingest costs, and to provide adequate income on top of that for the rightsholders to make it worth anyone's while (particularly in the near term, when people want to see returns relatively quickly)" (2/13/09). 

 

Brantley notes that, as compared to Google's typical advertising revenue model, "contextual advertising against book content is really difficult because the content comes in such bigger chunks, without significant link networks to provide external relevance valuation, and with often notably less internally provided context than web pages.   In other words, the diversity of web pages and their heterogeneity in citation graphs produces more robust evaluations for ranking. It is hard to rank large items that demonstrate significant internal consistency." (2/13/09).  Furthermore, there are added costs to other revenue generating options, such as selling database subscriptions: "the organizational and technical infrastructure to support institutional sales, even through a third party (permitted in the settlement) is a significant new cost for Google' (Peter Brantley, 2/13/09).  Professor Eric Goldman similarly questions whether Google made a good business decision to enter this expensive market, and concludes that, "if, at the beginning, Google knew that it would cost so much to enter the business, the rational decision would have been for Google to put the investment dollars in higher yielding investments"(11/27/08).

 

 

 

 

 

D-4.  Although settling may have been a good idea, the terms of this particular Settlement are bad for Google.

 

In addition to concerns about the profit potential of the underlying project, other commentators have suggested that the Settlement itself might be problematic for Google.  Adam Hodgkin, for example,

 

wonder[s] whether there is not an element of a "winner's curse" about to descend on Google. Some parts of the settlement outline a fantastically complicated and ingenious business model for our future access to digital books. Very specific mechanisms for the pricing of books and the regulation of access . . . .

A lot of this setup and this detail really needs to be established by innovation, by experiment and by markets, not by a court approved Settlement to a private dispute. Google may find itself subject to a lot more regulation and attention whilst it attempts to make these business models work . . . .  (10/29/08).

 

Professor Goldman also worries that the complicated Settlement may fail, even as it attempts to provide solutions for future problems: "I think this overall architecture has a high risk of failure—no matter how long the contract, it's impossible to anticipate everything . . . ." (11/27/08).

 

 

 

 

 

D-5.  The Settlement does not live up to Google's mission.

 

Sergey Brin, a co-founder of Google, has declared in no uncertain terms that the Settlement furthers the company's famous mission: "Google's mission is to organize the world's information and make it universally accessible and useful. Today, together with the authors, publishers, and libraries, we have been able to make a great leap in this endeavor" (The Future of Google Book Search).  Some commentators have agreed with Brin that the "project fits right in with Google's mission" (Lawline, 10/28/08).  However, others have questioned the extent to which the Settlement might actually undermine the company's stated mission.

 

A.J. Kohn explains, "Google is very keen on books and not just because it is part of their mission to help organize information. It's about revenue" (1/16/09).  Wade Roush writes that, "[t]he hope was that Google—consistent with its stated mission to "organize the world's information and make it universally accessible and useful"—would simplify access to these out-of-print but still-presumptively-copyrighted books by sharing their full text over the Internet at little or no cost to readers, the same way it does with the public-domain books it has digitized" (10/31/08).  However, Roush concludes that by settling, Google abdicated its role, rather than furthered its mission.  Indeed, "[r]ather than satisfy Google's mission of organizing the world's information, critics say, the deal gives Google and the publishing industry unrivaled power in the new market for digital books" (Farhad Manjoo, 5/6/09).

 

 

 

 

 

 

D-6.  The Settlement will encourage more lawsuits against Google.

 

One potential negative consequence for Google that most commentators have not focused on is the possibility that Google's willingness to settle this case, even when it had a decent chance of winning at trial, will encourage future lawsuits against Google.  Mike Masnick suggests that the Google Book Settlement is merely the culmination of a pattern of retrenchment from Google's previous willingness to fight certain lawsuits on principle, to make better law: "We've been seeing it time and time again, from Google's decision to pay off entertainment companies not to sue YouTube to the decision to pay off the Associated Press for including its headlines in Google News" (10/28/08).  While many, including Masnick, have criticized this change in stance for the harm it may do to the public interest, Masnick also suggests that Google may be shooting itself in the foot by agreeing to settle these cases. 

 

As was the case with Google caving on YouTube and the Associated Press, it becomes a situation where Google realizes it can throw a little cash at the problem to make it go away—while also creating a large barrier to entry for any more innovative startup. From a short-term business perspective this might make sense, but from a long-term business perspective (and wider cultural perspective) it's terrible (Mike Masnick, 10/28/08).

 

Settling, Masnick argues, "will only encourage more lawsuits against Google for trying to innovate, as more and more people hope that Google will settle and throw some cash their way" (10/28/08).  Indeed, Peter Osnos states that, "the major point is that Google has now conceded, with a very large payment, that information is not free. This leads to an obvious, critical question: Why aren't newspapers and news magazines demanding payment for use of their stories on Google and other search engines?" (11/3/08).  Masnick believes that such entities will indeed begin to "line up to Google and demand to get paid;" as such, he concludes that the Settlement was "a huge long term strategic mistake" in that "Google has now set a precedent of being willing to pay, and that's going to backfire badly" (Mike Masnick, 11/5/08).

 

 

E.   How the Settlement Impacts Private Companies Not Party to the Settlement Discussions and Ultimate Agreement

 

 

E-1.  The Settlement will harm future digitizers.

 

This problem was discussed in detail in Part A-3, in the context of monopoly concerns raised by the Settlement.  To summarize, the basic worry is that "[r]ightsholders and other potential plaintiffs might view this settlement as the model for all future relationships with digitization efforts—if Google pays for digitizing, why shouldn't everyone else?" (Sherwin Siy, 10/28/08).  Thus, "[o]ther book scanners [and search engines] may have to pay to play as well, even if Google's original fair-use claim was valid" and would have prevailed had Google taken it to trial (Peter Suber, 10/28/08).

 

 

                                                         

 

 

E-2.   Google will present fierce competition to both traditional and online bookstores, and in particular to Amazon.

 

Many commentators have suggested that, after the Settlement, Google has effectively added "bookseller" to its repertoire—indeed, Google has become arguably the most important bookseller of the digital age.  (See, e.g., Peter Brantley, 2/13/09; Paul Courant, 3/26/09; Susan Crawford, 10/29/08; John Timmer, 10/28/08.)  As such, Google potentially presents a huge "competitive threat" to both traditional and online bookstores.  (Andrew Brenneman, 3/1/09; see Peter Brantley, 11/8/08; cf. Siva Vaidhyanathan, 11/1/08.)

 

Many have noted that Amazon in particular is likely to feel the effects of that competition.  "Google now has the ability to monetize millions of books Amazon can't," and "Amazon's 190,000 Kindle titles look puny compared to the millions of books Google now has access to" (Kirk Biglione, 10/28/08; see also Meredith Filak, 4/10/09; Timothy B. Lee, 2/23/09).  Sara Lloyd suggests that, "[m]any publishers must also be grinning to think of the impact of this announcement on Amazon.  Whilst it has carefully been building up the walls around its walled garden, Kindle, Google has quietly and cunningly been working away on a plan which makes it the gateway and the marketplace for all digitised books, and without the need for a dedicated device" (10/28/08).  Her conclusion is that, "[i]t must be good for there to be a strong competitor to Amazon, mustn't it?" (10/28/08). 

 

It seems likely that at least publishers will think so: "This agreement may make Google the eBook leader ahead of Amazon.com . . . .  That eventuality however, will be exactly what publishers will be looking for as they have become increasingly concerned about the position and power of the Amazon eBook (Kindle) offering" (PersonaNonData, 10/28/08).  However, some question whether Google is merely pacifying publishers, and will ultimately not really elect to compete with Amazon and others in the bookselling business: "'The revenue share on the books is a plus, but I think it's more to accommodate the publishers so that they can see this as a way where they're not just providing free access to their content," said Clayton Moran of Stanford Group Co. "I wouldn't really view this as a competitive threat to Amazon'" (Chris Snyder, 10/28/08).

 

Traditional bookstores are certainly not immune from competition either, particularly given that "Google has the right to sell printed copies of . . . books via print on demand" (Kirk Biglione, 10/28/08; see also Alan Wexelblat, 10/28/08).  Indeed, when combined with printing technology such as the Espresso Book Machine (EBM), Google Book Search could revolutionize, and potentially upend, the bookstore industry: 

 

The EBM does something very cool. It can print out a 300 page book, with color cover, in four minutes. The end product looks just like a "real" book—because it is a real book. Perfect bound, good paper, clear type. It's a book.  The soon-to-be-released 2.0 version has a modest footprint, something like 6 ft. by 3 ft. It will fit nicely in a bookstore, or the lobby of a library, or in a coffeeshop. The EBM has been called "an ATM for books." It is not quite that yet, but the analogy is spot-on.  The materials cost for a 300-page book is just under $3.00. Amortize the cost of the machine itself, and you have a per-book cost of at most $6.00. Hook it up to the one-million-title Internet Archive and you can publish a lot of interesting and valuable titles—all free of copyright charges, because the books are in the public domain.  Now imagine hooking the EBM up to the Google database. If Google keeps on trucking, then what you will have is the ability to print pretty much every book ever written. . . . [O]ne should expect that they would cost no more, and probably significantly less, than a book one buys at a Barnes & Noble store, or through Amazon.com (Adam Corson-Finnerty, 12/31/08).

 

Given the threat Google presents to booksellers, it is no surprise that many have spoken out against the Settlement.  Among the critics are the British Booksellers Association, The Boersenverein (the German booksellers and publishers association), French booksellers associations, and the UK Federation of Booksellers (See Authorlink, 11/08; Chris Castle, 12/31/08; Martyn Daniels, 12/18/08).  While booksellers may be anxious about Google's new status as a "tremendous bookstore" (Susan Crawford, 10/29/08), however, many, like Paul Courant, are "pretty happy about the universal bookstore" (3/26/09).

 

 

 

 

 

 

 

E-3.  Microsoft feels threatened by the Settlement, and is rumored to be working behind the scenes to undermine it.

 

A handful of bloggers have noted that Microsoft is the only other company to have pursued a project similar to Google Book Search—"and it abandoned its Live Search Books initiative earlier this year" (Chris Snyder, 10/28/08).  As Kirk Biglione points out, "[w]hile Microsoft still views web search as an important strategic goal, it is looking increasingly unlikely that Microsoft search will ever catch up to Google" (10/28/08).  Some have intimated that Microsoft is responding to Google's seemingly inevitable dominance of the field by trying to undermine the Settlement. 

 

Indeed, in a much-discussed Wired.com article entitled " Who's Messing With the Google Book Settlement? Hint: They're in Redmond, Washington," Steven Levy points out that the head of New York University Law School's Google Book Settlement Project, James Grimmelmann, is a former Microsoft employee (3/31/09).  Furthermore, his project—which has produced a brief urging the court evaluating the Settlement to "solicit the opinions of the"Anti-trust Division of the Department of Justice and the Federal Trade"Commission"—has received outside funding from a single source: Microsoft, which has contributed $50,000 (Steven Levy, 3/31/09).  Both Microsoft and Grimmelmann insist that the funding comes with no strings attached, and even Levy notes that "Grimmelmann's own stance on the Google Settlement . . . is rather nuanced[:] [h]e thinks it's a positive development, but wants significant change . . . [and] at various times, his positions on issues have been anti-Microsoft as well as anti-Google" (3/31/09).  Nonetheless, Miguel Helft concludes that "[t]here's no question that Microsoft has made it a mission to cause trouble for Google in Washington," (4/4/09) and Levy suggests that the "cleverest hacker here is Microsoft, making an academic grant that may help put some judicial heat on its rival" (3/31/09).

 

 

Blog Directory

FFFF.

Andrew Albanese, Register of Copyrights Not Asked by Congress To Weigh in on Google Book Search?, Library Journal.com, Mar 20 2009, http://www.libraryjournal.com/article/CA6645344.html?q=google+book+settlement.

Andrew Albanese, At Columbia Conference, Harvard's Darnton Asks: Is Google the Elsevier of the Future?, Library Journal.com, Mar 18 2009, http://www.libraryjournal.com/article/CA6644834.html.

Andrew Albanese, NYU's Mandel: Google Book Search Incremental, Tranformative, Worrisome, Library Journal.com, Mar 18 2009, http://www.libraryjournal.com/article/CA6644844.html?q=google+book+settlement.

Andrew Albanese, Talking About Google Settlement, Publisher Cites Monopoly, Duopoly, and New Library Sales, Library Journal.com, Feb 27 2009, http://www.libraryjournal.com/article/CA6640464.html?q=google+book+settlement.

Andrew Albanese, Library Organizations to File Amicus Brief in Google Book Search Settlement, Library Journal.com, Feb 26, 2009, http://www.libraryjournal.com/article/CA6640461.html?q=google+book+settlement.

Andrew Albanese and Norman Oder, Hurdles Await Google Settlement, Library Journal.com, Dec 15 2008, http://www.libraryjournal.com/article/CA6618858.html?q=google+book+settlement.

Andrew Albanese, European Booksellers Slam Google Book Settlement, Library Journal.com, Dec 2 2008, http://www.libraryjournal.com/article/CA6619104.html?rid=reg_visitor_id&source=link&q=google+book+settlement.

Andrew Albanese, Google Book Deal Gets "Preliminary" Court Approval; More Boosters Emerge, Library Journal.com, Nov 21 2008, http://www.libraryjournal.com/article/CA6616456.html?q=google+book+settlement.

Andrew Albanese, ALA/ARL Issues Guide to Google Settlement, Library Journal.com, Nov 19 2008, http://www.libraryjournal.com/article/CA6615546.html?q=google+book+settlement.

Andrew Albanese, Grimmelman: Google Book Search Deal Should be Approved, Could be Improved, Library Journal.com, Nov 13 2008, http://www.libraryjournal.com/article/CA6614535.html.

Andrew Andrew Albanese, One for All? As Google Deal is Evaluated, Critics Question Single Library Terminal, Library Journal.com, Nov 11 2008, http://www.libraryjournal.com/article/CA6613723.html?rssid=220.

Andrew Albanese, Lessig: In Google Settlement, Orphan Works the Big Loser?, Library Journal.com, Oct 30, 2008, http://www.libraryjournal.com/article/CA6610121.html.

Andrew Albanese, Google Settles Landmark Lawsuit Over Book Scanning, Library Journal.com, Oct 28 2008, http://www.libraryjournal.com/article/CA6609195.html?q=google+book+settlement.

Andrew Albanese, Libraries Reserve Early Comment, But Some See Bright Side in Google Book Search Settlement, Library Journal.com, Oct 28 2008, http://www.libraryjournal.com/article/CA6609159.html?rid=reg_visitor_id&source=link&q=google+book+settlement.

Andrew Albanese, Harvard Slams Google Settlement; Others React w/ Caution, Library Journal.com, Oct 20 2008, http://www.libraryjournal.com/article/CA6610115.html?&rid=reg_visitor_id&source=title.

Authorlink, Google Settlement Has A Few Unseen Wrinkles for Authors, Nov 2008, http://www.authorlink.com/news/item/1880/google settlement aap authors guild.

Kirk Biglione, The Google Book Search Deal: Winners and Losers, MediaLoper, Oct 28 2008, http://medialoper.com/hot-topics/print/the-google-book-search-deal-winners-and-losers/.

Peter Brantley, The Orphan Monopoly, Mar 15 2009, http://blogs.lib.berkeley.edu/shimenawa.php/2009/03/15/the-orphan-monopoly.

Peter Brantley, Advertising Google Book Search, Feb 13 2009, http://blogs.lib.berkeley.edu/shimenawa.php/2009/02/13/advertising-google-book-search.

Peter Brantley, A Fire on the Plain, Jan 29 2009, http://blogs.lib.berkeley.edu/shimenawa.php/2009/01/26/a-fire-on-the-plain.

Peter Brantley, Settle for Profit or Distribution, Nov 11 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/11/settle-for-profit-or-distribution.

Peter Brantley, Foxes Making Book Coop, Nov 9 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/09/foxes-making-book-coop.

Peter Brantley, GBS is Not a Bookstore, Nov 8 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/08/gbs-is-not-a-bookstore.

Peter Brantley, Class Action Monopoly, Nov 6 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/06/class-action-monopoly.

Peter Brantley, Waking Up to Books in Richmond, Nov 4 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/04/waking-up-to-books-in-richmond.

Peter Brantley, Losing What We Don't See: Translation, Nov 2 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/02/losing-what-we-don-t-see-translation.

Peter Brantley, Revenue From the Orphans, Nov 2 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/02/revenue-from-the-orphans.

Peter Brantley, Licensing...Advertising, Nov 1 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/01/licensing-advertising.

Peter Brantley, Termination by Library, Nov 1 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/11/01/termination-by-library.

Peter Brantley, An Ever Sliding Window of Access, Oct 31 2008, http://blogs.lib.berkeley.edu/shimenawa.php/2008/10/31/an-ever-sliding-window-of-access.

Andrew Brenneman, Digital Directions: The Google Settlement, Mar 1 2009, http://www.bookbusinessmag.com/article/glimpses-new-world-order-403487_1.html.

Chris Castle, Is Google's culture grab unstoppable?, The Register, Dec 31 2008, http://www.theregister.co.uk/2008/12/31/chris_castle_google_books_and_beyond/.

Kristen Cichocki, What the Google Settlement Means for Public Libraries, K. Mara Law blog, Oct 30 2008, http://www.mara-iplaw.com/what-the-google-settlement-means-for-public-libraries/.

Dan Cohen, First Impressions of the Google Books Settlement, Oct 28 2008, http://www.dancohen.org/2008/10/28/first-impressions-of-the-google-books-settlement/.

ConsumerWatchdog.org, Consumer Group Calls On Justice Department To Intervene In Google Book Settlement, Apr 6 2009, http://www.consumerwatchdog.org/corporateering/articles/?storyId=26117.

Adam Corson-Finnerty, Let's Just Do It Ourselves, Musings of Mine, Apr 6 2009, http://musingsofcorsonf.blogspot.com/2009/04/lets-just-do-it-ourselves.html.

Adam Corson-Finnerty, Google and Out of Print Books, Musings of Mine, Jan 19 2009, http://musingsofcorsonf.blogspot.com/2009/01/google-and-out-of-print-books.html.

Adam Corson-Finnerty, Google Book Settlement for Librarians, Musings of Mine, Dec 31 2008, http://musingsofcorsonf.blogspot.com/2008/12/google-book-settlement-for-librarians.html.

Paul Courant, Google & Books: An Exchange (Letter to the Editor), New York Review of Books, vol. 56, no. 5, New York Review of Books, vol. 56, no. 2, Mar 29 2009, In response to Google & the Future of Books, Feb 12 2009, http://www.nybooks.com/articles/22496.

Paul Courant, Orphan Works Legislation and the Google Settlement, Mar 15 2009, http://paulcourant.net/2009/03/15/orphan-works-legislation-and-the-google-settlement/.

Paul Courant, Google, Robert Darnton, and the Digital Republic of Letters, Feb 4 2009, http://paulcourant.net/2009/02/04/google-robert-darnton-and-the-digital-republic-of-letters/. (Note this is the original, full length letter that Courant sent to the New York Review of Books).

Paul Courant, The Settlement: From the Universal Library to the Universal Bookstore, Oct 28 2008, http://paulcourant.net/2008/10/28/the-google-settlement-from-the-universal-library-to-the-universal-bookstore/.

Karen Coyle, AAP/Google, some answers, Coyle's InFormation, Feb 11 2009, http://kcoyle.blogspot.com/2009/02/aapgoogle-some-answers.html.

Karen Coyle, Google: What's in it for the libraries?, Coyle's InFormation, Jan 28 2009, http://kcoyle.blogspot.com/2009/01/google-whats-in-it-for-libraries.html.

Karen Coyle, A Start at a Questions List, Coyle's InFormation, Jan 26 2009, http://kcoyle.blogspot.com/2009/01/start-at-questions-list.html.

Karen Coyle, The ALA Google Panel, Coyle's InFormation, Jan 25 2009, http://kcoyle.blogspot.com/2009/01/ala-google-panel.html.

Karen Coyle, Google Books and Social Responsibility, Coyle's InFormation, Jan 10, 2009, http://kcoyle.blogspot.com/2009/01/google-books-and-social-responsibility.html.

Karen Coyle, Google's Gift of Books, Coyle's InFormation, Dec 30 2008, http://kcoyle.blogspot.com/2008/12/googles-gift-of-books.html.

Karen Coyle, Google and Fair Use, Coyle's InFormation, Dec 4 2008, http://kcoyle.blogspot.com/2008/12/google-and-fair-use.html.

Karen Coyle, More on Google/AAP, Coyle's InFormation, Nov 22 2008, http://kcoyle.blogspot.com/2008/11/more-on-googleaap.html.

Susan Crawford, Google settlement: Changing Defaults, Susan Crawford Blog, Oct 29 2008, http://scrawford.net/blog/google-settlement-changing-defaults/1274/.

Martyn Daniels, The Great Book Bank Robbery – The Final Month, Brave New World, Apr 5 2009, http://bookseller-association.blogspot.com/2009/04/great-book-bank-robbery-final-month.html.

Martyn Daniels, The Great Book Bank Robbery, Part 17: The US Debate, Brave New World, Mar 16 2009, http://bookseller-association.blogspot.com/2009/03/great-book-bank-robbery-part-17-us.html.

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James Grimmelman, Principles and Recommendations for the Google Book Search Settlement, The Laboratorium, Nov 8 2008, http://www.laboratorium.net/archive/2008/11/08/principles_and_recommendations_for_the_google_book.

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Richard K. Johnson, BackTalk: Free (or Fee) to All?, Library Journal.com, Dec 23 2008, http://www.libraryjournal.com/article/CA6624784.html?rssid=220.

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[1] History of the Google Book Search, http://books.google.com/googlebooks/history.html (last visited May 13, 2009).

[2] This press release from Google announcing the Settlement offers a summary of the 141-page agreement.  The settlement administration website, where a copy of the full Settlement Agreement can be downloaded, and Google's settlement website both provide a great deal of more specific information. Google Book Search, in its current form, can be viewed at http://books.google.com/.

[3] Robert J. Kasunic, Copyright's Uneasy Transition Into the Web 2.0 Environment, 1 No. 4 Landslide 8 (Mar./Apr. 2009), available at http://www.abanet.org/intelprop/magazine/LandslideMar09_Kasunic.pdf; Robert Merges, The Concept of Property in the Digital Era, 45 Houston L. Rev. 1239, 1269 n.75 (2008), available at http://www.houstonlawreview.org/archive/downloads/45-4_pdf/07_Merges.pdf; Elizabeth Herbst Schierman, Orphan Works: Congress Considers Lessening Penalties for Copyright Infringers, 52 Apr. Advocate 16, 18 n. 27 (Mar./Apr. 2009), available at http://www2.state.id.us/ISB/advocate/PDF/08AugAdv.pdf; Hannibal Travis, The Future According to Google: Technology Policy from the Standpoint of America's Fastest-Growing Technology Company, 11 Yale J.L. Tech. 209 (2009), available at http://www.yjolt.org/files/travis-11-YJOLT-209.pdf.

[4] James Grimmelmann, How to Fix the Google Book Search Settlement, 12 No. 10 J. Internet L. 1 (2009), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1022&context=james_grimmelmann.

[5] Travis, supra note 1, at 214-15

[6] A consent decree would not immunize the Registry from antitrust liability, but would lend it legitimacy in antitrust litigation brought against it.  See Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 13 (1979), available at http://supreme.justia.com/us/441/1/case.html ("Of course, a consent judgment, even one entered at the behest of the Antitrust Division, does not immunize the defendant from liability for actions, including those contemplated by the decree, that violate the rights of nonparties. See Sam Fox Publ'g Co. v. United States, 366 U.S. 683, 690 (1961), [available at http://supreme.justia.com/us/366/683/case.html], which involved this same decree. But it cannot be ignored that the Federal Executive and Judiciary have carefully scrutinized ASCAP and the challenged conduct, have imposed restrictions on various of ASCAP's practices, and, by the terms of the decree, stand ready to provide further consideration, supervision, and perhaps invalidation of asserted anticompetitive practices.  In these circumstances, we have a unique indicator that the challenged practice may have redeeming competitive virtues and that the search for those values is not almost sure to be in vain.")

[7] Miguel Helft, Justice Dept. Opens Antitrust Inquiry Into Google Books Deal, N.Y. Times, Apr. 28, 2009, available at http://www.nytimes.com/2009/04/29/technology/internet/29google.html?_r=1&hp.; see also Jessica E. Vascellaro, Google Book-Search Pact Draws Antitrust Scrutiny, Wall St. J., Apr. 29, 2009, available at http://online.wsj.com/article/SB124095639971465549.html.

[8] An interesting point to note here comes from Sherwin Siy.  He points out that the line the Settlement draws between different types of books is "commercial availability" rather than in-print versus out-of-print texts.  This is a notable point of divergence between the Settlement and copyright law.  "As a practical matter, it seems much more reasonable to make a copy of a work if there's no way for me to obtain it from a bookstore. Yet this might not save me from being found an infringer under fair use, given a sufficiently litigious plaintiff and a sufficiently unsympathetic court.  After all, even if there are no other copies of the book available, there's a potential market in licensing the right to make a copy of the book."  Siy sees this distinction as a good thing: "This sort of arrangement can be cited as a positive feature of licensing and the power of contract—the ability to draw distinctions that matter to the parties that the law doesn't recognize."

[9] See Andrew Brenneman (3/1/09) for an interesting point about the reaction to Google's power.  Brenneman suggests that some of rightsholders' outrage may be a result of Google's "style" of dealing with these issues (as a past example, he cites Field v. Google, 412 F. Supp. 2d 1106 (D. Nev. 2006), where Google's practice of copying website content to index for its search engine was challenged).  Google's approach "consists of a presumption to rights of access to information without prior license and the use of an opt-out mechanism, which places the onus of enforcement on the rights holder."

[10] See Travis, supra note 1 (arguing that Google is not necessarily not acting in the public interest just because it has a profit motive.  "Google's position on key technology issues could be described from the standpoint of the average Internet user using the old clich", "doing well by doing good."  By constantly seeking out new sources of information to make searchable, and content partners to attract eyeballs that can be sold to advertisers, Google has vastly expanded the universe of knowledge and expression that is available to its users").

[11] Note that Judge Denny Chin of the Southern District of New York, who is overseeing the Settlement has postponed this deadline to September 2009.  Helft, supra note 6.  "The decision came in response to a request from a group of authors who were seeking more time to study the agreement."  Vascellaro, supra note 6.