Last night I opened my mail to find my royalty statement for my 2004 book, The Anarchist in the Library. I was elated to find that Basic Books had sold the Korean rights to it.
And I was tickled to see that I had earned a small payment from Google for the authorized use of the book through Google Book Search. How much did Google pay? It paid Basic 10 cents. Of that, Basic pays me five cents.
Then this morning I was on an aerobic machine at my gym while CNBC played silently in front of me. Crawling across the screen came the words: "Google settles copyright lawsuit with publishers and authors." I nearly fell off the machine.
I stumbled to my locker and retrieved my Blackberry, then moved into the front lobby to read what I could find.
My good friend at Google, one of the attorneys who has been working on this case for some years now, had sent me a heads-up email with all the relevant links. I quickly read all I could. This press release from Google summarizes the settlement as well as anything I have read today.
My initial reaction remains my reaction some 12 hours later. This is a huge and complex settlement concerning a huge and complex case. I have only skimmed the 141-page settlement document. So I might have to revise some of these early observations, conclusions, and opinions.
[Oh, in case you wondered why this site did not carry my initial reaction some time earlier, it was because the site was down. Yep. Of all days ...]
Here are the basic bullet points of the settlement, which -- and I cannot emphasize this enough -- MUST be approved by the court before it takes effect:
• The members of the The Authors Guild and the Association of American Publishers (AAP) will cease pursuing damages for copyright infringement.
• Google will pay $125 million to settle the case. Much of this will fund the next bullet point.
• Google will establish and run a not-for-profit rights registry to allow rights holders to claim or establish control over out-of-print works. This registry would serve as a helpful database through which scholars and publishers may find rights holders to clear rights. As of today, there is no good database for such book rights for most of the books published in the 20th century. So this has the potential to be a major boon to research and publishing. In addition, it can help rights holders accrue royalties (meager thought they might be) by exploiting a market that currently does not work efficiently or effectively -- reprints or selections from out-of-print works. 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.
• Google will offer (with nasty digital rights management) full-text copies out-of-print books (presumably only those books published by members of the AAP, thus excluding university presses, independent and small presses, vanity presses, etc.) for sale as downloads.
• Google will offer much better access to many out-of-print works still under copyright. Right now Google offers these texts in useless "snippet" form. There would be much richer and broader access under the settlement.
• Google will provide designated terminals in U.S. libraries that will offer free (as in beer, not speech), full-text, online viewing of millions of out-of-print books. I must assume there will be no printing allowed from these terminals.
So why is it important that the court approve this settlement? Why would that not be pro forma? Two reasons. First, this is a class-action suit. So there are many plaintiffs (including me) who were not consulted when the suit was filed yet might find the terms of the settlement unsatisfactory.
So this all sounds great. And it certainly improves Google Book Search substantially. As long as we are stuck with Google Book Search as the major -- perhaps someday soon only -- source for digital book search and access, it might as well be better than what it has been.
In addition, this settlement, if it goes through, dodges that great copyright meltdown that I had feared. I did not want to see Google lose this suit in court. And I was confident it would. Google lawyers assured me that they were even more confident they would prevail. And they are smarter than I am. But clearly both sides saw real risk in continuing toward a courtroom showdown.
However, back when Google debuted the library scanning part of the Book Search program, many of my fellow copyright critics celebrated the fact that a big, rich, powerful company was taking a stand to make fair use stronger. Well, it looks like that never did happen. Fair use in the digital world is just as murky and unpredictable (not to mention unfair and useless) as it was yesterday.
But what about the problems and pitfalls of this settlement? I have asked Google folks the following questions:
• Isn't this a tremendous anti-trust problem? Google has essentially set up a huge compulsory licensing system without the legislation that usually makes such systems work. One of the reasons it took a statutory move to create compulsory licensing for musical compositions was that Congress had to explicitly declare such a consortium and the organizations that run it (ASCAP, BMI) exempt from anti-trust laws. In addition, this proposed system excludes many publishers (such as university presses) and many authors (those not in the Authors' Guild). More importantly, this system excludes the other major search engines and the one competitor Google has in the digital book race: the Open Content Alliance. Don't they now have a very strong claim for an anti-trust action? [Oh, and please note that Google CEO Eric Schmidt was out campaigning for the likely next president last week ... coincidence?]
• Isn't this a potential privacy nightmare for libraries? 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?
Overall, though, I have to offer my congratulations to both Google and the publishers. They forged a beneficial system that could make a difference to many authors, scholars, and researchers while making both Google and publishers a little money that they might otherwise never see.
This settlement is the result of some masterful lawyering among parties that were more interesting in building something than tearing something down. So bravo.
My major criticisms of Google Book Seach have always concerned the actions of the university libraries that have participated in this program rather than Google itself. Companies should always do what is best for them. But the university libraries have a different, much higher mission. And they have clear ethical obligations. So I now turn to them.
From the beginning, this has seemed to be a major example of corporate welfare. Libraries at public universities all over this country (including the one that employs me) have spent many billions of dollars collecting these books. Now they are just giving away access to one company that is cornering the market on on-line access. They did this without concern for user confidentiality, preservation, image quality, search prowess, metadata standards, or long-term sustainability. They chose the expedient way rather than the best way to build and extend their collections.
I am sympathetic to the claim that something is better than nothing and sooner is better than later. But sympathy remains mere sympathy. These 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.
Now that Google has proposed establishing and running the central commercial clearinghouse for rights to much of the written work of the 20th century, we must reflect on how complicit some universities have been in centralizing and commercializing knowledge under a single corporate umbrella.
At the core of this settlement is this fact that university libraries much confront: For the first time, elements of library collections will be offered for sale in widespread manner via a private contractor. Perhaps this is only a shift of degree. Perhaps it is a major mission shift. It's worth a good argument, no?
Ultimately, I have to ask: Is this really the best possible system for the universal spread of knowledge? I think we can do better. Watch this space to see how.
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Comments (18)
A small correction: The AAP includes most if not all university presses, and many small presses. You can see all members listed on their website: http://www.publishers.org/main/Membership/member_02.htm#16
Since this class-action settlement is an opt-out system, doesn't it effectively tie up orphan works? Orphan works by definition have noone to claim them; thus Google would claim enforceable rights to tie up those books, restrict access and retain unto itself all revenue associated with downloads. How does that serve libraries and their patrons?
Thanks! The AAP membership is a very important and helpful correction. I will not make that mistake again.
A correction regarding orphan works: Revenue generated by orphan works will not all go to Google. There are provisions in the settlement (section 6.3) for what will happen to unclaimed author funds. If funds are not claimed after 5 years, first they will go to support the operating costs of the not-for-profit registry; any money left over will go to approved charities.
Does this settlement preclude other parties from forming a registry of orphan works and distributing them? I don't see how it could. If it does I see a lot more litigation down the pike. If I were Scribd http://www.scribd.com/ or some like party I would want a shot at those orphan works as well.
I prefer this process. I think it's better than a statutorily imposed scheme. Technology and distribution methods will continue to evolve and the interested parties can hash it out as they go
You come down hard on the libraries, but, to their defense, they weren't a party to the settlement. Shouldn't they have been?
What are the avenues of protest for the parties affected by this settlement--the public, the libraries, etc? Are there any? Must we accept this as a done deal?
I find it disconcerting that the rights registry set up under this settlement would be governed only by authors' reps and publishers, who have little incentive to provide evidence of lapsed copyright. That certainly doesn't prevent efforts like OCLC's Registry of Copyright Evidence, but Google will be making decisions about access and payment based on this new registry's determinations.
It's certainly not true that the settlement excludes authors who are not members of the Authors' Guild.
Not that this is necessarily on topic, but I've often wondered why colleges and universities don't all pitch in together and create a digital repository for their books that can be used by everyone? I don't know if it'd even work but 1% (or even 1/2 of 1%) of the budget from hundreds college & university that wanted to participate would fund a lot of people going through and digitizing books. Then we wouldn't have to go through Google to access/pay for access these materials. I realize it doesn't address the settlement/lawsuit aspect, but it's been on my mind for a while and it would get information out of Google's hands.
Thank you for a very insightful summary of the problems here. In my first co-authored work ("Beyond Napster: Using Antitrust to Advance and Enhance Online Music Distribution"), there's a discussion of ASCAP/BMI and how a "celestial jukebox" could be structured to avoid some of the antitrust issues you've mentioned. This "celestial library" might benefit from some similar guidelines.
Sadly, I think that the 1978 Sup Ct case of BMI v. CBS is going to put some hurdles in front of any antitrust challenges to this settlement.
But I do hope that activists online can organize to put forward some basic conditions for this settlement. The settlement affects lots of parties other than the litigants--it has profound externalities. Some public input is essential.
There seems to be a great deal of misinformation about on the proposed settlement. I would suggest one source of information (and opinion as the source is one of the parties to the agreement) can be found on the Association of American Publishers website at http://www.publishers.org/main/Copyright/CopyKey/copyKey_01_03.htm
The "Joint FAQ" was very useful to me. Please note that your comments, it is incorrect that Google will run the registry. It will be a separate, non-profit registry not controlled by Google.
Has anyone noticed yet an interesting little clause 6.3 (b), where Google spells out their obligations if they accidentally charge a fee to users for books that turn out to be in the public domain?
They don't have any-- at least to the hapless patron. They are required to distribute any ill-gotten monies to the registry, or give them away, basically to charity, if they haven't paid the "rightsholder" yet.
But what happens if they have, mistakenly, paid the claimant monies from an outright non-subscription sale of the book? Check out this sentence:
"Google will have no right to reclaim public domain funds for a book that is in the public domain under the Copyright Act of the U.S. from a person who claimed he, she, or it is a Rights holder of such book once the Registry pays such funds to such person."
Yikes! Can you imagine the bad faith situations this will create? The battles over PD status? It also doesn't give Google much incentive to properly check whether 1922-1964 books are in the PD, either, especially when they get to keep a 1/3 cut of the fees!
And where in the settlement is there the requirement that they have to provide a download capability for PD works? I can't find it-- and it doesn't exist in their U.C. agreement, either. All they have to do is provide full-view display. Right now, downloading is completely discretionary on their part.
The upshot? If google really does find that "most" 1922-1964 are indeed in the PD, as they have said elsewhere, it will only be a matter of time before they start charging for downloading PD books. It's inevitable. Viewing will still remain free under the host library agreements, but downloading, not-- unless there's a contrary clause somewhere that I haven't found yet.
Other problems with the settlement:
-- No remote access to copyrighted works unless you're part of an institutional account.
-- no downloading of in-copyright works, even if you buy them as a consumer-- you're stuck online if you want to read a book.
-- slipshod printing allowances-- and public library patrons have to pay a per-page fee for the privilege.
-- only one "free" public library terminal allowed. That's it.
The librarians that are cheering this arrangement obviously haven't done much serious work in awhile-- there's nothing more cumbersome than having to stare down into a live computer terminal all day in order to read a book. In my view, without an offline download capability, the whole thing's really only good for browsing.
A few more clarifications:
The settlement covers many more than the members of the groups who filed the complaint. It's a class action settlement, and the class is defined as anyone with a U.S. copyright interest in a print book as of Jan. 5, 2009, with some exceptions (such as textbooks).
A rights holder can opt out of Google's displaying or sale of out-of-print but in-copyright titles.
Google Book Search currently offers up to a 20% Preview of books at the rights owner's discretion, and the settlement would continue to allow but not require this. So there is nothing new there.
Any system that requires copyright holders to opt out in order to retain complete control of their copyright is to be avoided at all costs. The law requires permission to be obtained by the potential user. It does not require the creator to get in touch with the user and say "Hey, you can't take my work."
All the other legalese is unimportant. The GoogleBooks agreement is nothing less than an end run against copyright which, it seems, is soon to disappear entirely.
You raise the issue of whether the terminals in libraries will allow printing. That's a rather miniscule concern when considered next to a concern that was entirely ignored in this agreement.
The word "privacy" is found only twice in the agreement, and only in connection with the proposed registry of rights-holders. What about Google's tracking online of who reads what? Now that Google is free to pursue full-text access to out-of-print books, one might have hoped that the plaintiffs in the lawsuits would raise the issue of whether Google should safeguard the privacy of readers who access Google's collection online.
The American Library Association supported librarians who refused to hand over borrower information to the FBI without a court order. But the plaintiffs in this settlement couldn't care less about reader privacy. In a few more years, it will be much easier for the FBI to leave librarians alone, and just slap a National Security Letter on Google, and get a list of books that attracted the interest of a particular person.
The plaintiffs missed a grand opportunity to make a statement. All they cared about was more money for authors, and had no concern for the privacy of readers.
What if China tells Google that they want all the data on everyone who reads certain books about Tibet, or about democracy? Will Google turn them down and risk their market share in China by alienating the authorities? I think not.
Bottom line: Don't access any controversial books via Google unless you delete all of Google's cookies consistently, and use a proxy to hide your Internet address.
The last four paragraphs of Siva's initial post are indeed worth a good argument, as he suggests, and more. They summarize nicely important issues faced by research libraries, including the one that I am responsible for.
Here, briefly, is a beginning of the argument:
1. Crucially, the libraries' agreements with Google are nonexclusive. If we can mount the energy and the resources to do better, somehow, nothing in the settlement stops us from doing so. Indeed, if the world doesn't like the Google product, we can negotiate with the Registry for better.
2. Yes, indeed, the libraries are complicit in the creation of a commercial entity that uses content for which we paid billions. But notice that the access to that content was not something that we could deliver without both mass digitization and the agreement of rightsholders. Google and the settlement produce both; without them, we had neither. And if Google had won the lawsuits, or if we had magically found the money to do mass digitization on our own, we still would not have been able to proceed without clearing rights.
2a. The settlement allows us to extend greatly the number and types of users who will have access to the content in our libraries. The public can get online access to the books we bought. The world's universities will have online access to each other's collections. The basic access that we paid for when we bought the stuff is unchanged. Walk into the University of Michigan Library and we will happily let you wander the stacks and find the books and read them. But we all agree, I think, that that's not good enough.
3. I am most hopeful that we will do even better in promoting the universal spread of knowledge, and I pledge, as Siva asks, to watch this space to learn how.
And I hope that with hard work and good will the participating libraries (or at least this participating Librarian) can restore their approval ratings on this blog to at least those of the AAP, the Authors Guild, and Google. :)
According to Pat Schroeder's comments at the Charleston Conference this past week, because this agreement covers only those parties participating in the class-action suit, illustrators and photographers have been excluded from the agreement. Therefore, all scanned materials containing photos or illustrations will contain black blocks where those would otherwise be seen in the monograph version. A major drawback in my opinion, at least for some disciplines.
Also, with regard to the comment on privacy, one could definitely say that the printing issue is irrelevant, philosophical-speaking. But fiscally, it will most definitely be an issue as materials budgets continue to evaporate for most institutions.
Overall, I do think it is a bit embarrassing for the publishing industry that it took Google's initiative to help create a registry that is decades late in coming. In my view, with regard to institutional licensing for academic research libraries, there is still some vague language that needs to be expounded upon.
According to their respective web sites the Association of American Publishers, Inc. has 300 members and the Author’s Guild represents four thousand individuals. Authors, publishers, and graphic designers, all fellow members on a listserv to which I have subscribed for many years are deeply concerned that the Google agreement would bind all publishers and authors. Yet, like Siva, none of us were consulted about the lawsuit or the agreement. Nor were the four thousand members of Independent Book Publishers of America (formerly Publishers Marketing Assoc.). According to a survey by Publishers Weekly, in 2004 there were 34 thousand mid-sized publishers and 86 thousand small publishers. Why should this agreement bind all publisher and all authors?
The fact that some works no longer are commercially available does not mean that copyrighted materials are free for taking by Google. Independent publishers often republish out-of-print books, sometimes their own--after buying back the rights, sometimes works authored by others--after obtaining the right to do so.
The payment offered is ridiculous. I have three two books available currently, and two forthcoming in 2009. One book is sold directly, by the author (a university professor) at seminars. Would that be considered "not commercially available"?
The other two books are priced are $59.95 and $250.00 because they dominate a market niche, in fact have no competition for essential information. I choose not to sell through bookstores any longer. I will not give them the huge discounts they demand, then wait months for payment.
Independent publishers put a great deal of time and effort, in addition to capital, into publishing. Unlike the large trade publishers, we do not operate on the spaghetti theory and rely on a few best sellers. Many produce books that are "Evergreens." They do not become obsolete or of no interest. One example is a series of books from Lavolta Press on women's clothing from prior centuries, complete with patterns for home sewers.
A mega-corporation like Google can do what it chooses to the works of independent publishers, pay what they choose, hold funds until they reach a certain amount, etc. Do we sue? Can any individual who is not named Warren Buffet take on Google?
Another concern we have is about opt-out. Will Google retaliate by not including our books in lists that respond to searches?
Since the agreement purports to affect all publishers and all authors, does this not mean that those who have yet to publish must comply, including authors and publishers not yet born?
Lastly, if the court approves the settlement does this not grant Google control over copyright law, thereby usurping our Constitutional rights and the power granted to Congress?