Where to next for the Google Book Settlement?

This week a US judge ruled against the Google Book Settlement, the latets in a seven year legal saga that I’ve covered in some depth here.

Jerry Brito has a good explainer of the background of the case:

In mid-2005, the Author’s Guild and the American Association of Publishers filed suit to stop Google from scanning any more books. Soon the Author’s Guild’s case was certified as a class-action lawsuit, meaning that anyone who had ever published a book—millions of authors—would be part of the class represented and would be bound by the result of the case.

An Unsettling Settlement

Three years later, after extensive negotiations, the parties announced they had reached a settlement. Google would pay $125 million up front and would then be allowed to continue scanning books and making them available online. More importantly, Google would be allowed to offer not just snippets, but it would be allowed to sell entire text of books as well. The copyright holder would get about 2/3 of the revenues and Google would keep 1/3.

On its surface, the proposed settlement was a boon for all involved. Google would get to continue digitizing books, authors and publishers would get a cut of the profits, and consumers would get universal access to almost all of the world’s books. But reading between the lines, the settlement proved to be problematic.

Because it was a settlement to a class-action lawsuit, it meant that all authors who had ever published a book were bound. Google could scan any book without first asking for permission. If an author didn’t want his book to be scanned or included in Google’s database, he had to contact Google and opt-out. This would have turned copyright on its head.

As a result, many authors protested. The Author’s Guild and the publisher’s association had negotiated on behalf of millions of authors, and many felt the deal didn’t represent their wishes. Almost 7,000 authors wrote to the court asking to be removed from the lawsuit’s plaintiff class.

Saving the Orphans

Another contentious aspect of the settlement was how it treated “orphan works,” books the authors of which are unknown or can’t be found. It’s a well-known problem in copyright that members of Congress have tried to fix several times.

The problem is that if a company like Google wants to digitize a copyrighted book, and it can’t find its author to ask for permission, then its choices are 1) scan the book anyway and face heavy penalties if the author surfaces later and sues, or 2) leave the book undigitized and out of a universal library. As a result, hundreds of thousands of books are in a kind of limbo, not accessible to readers even if the author may well have been fine with digitization.

The Google Books settlement presented a solution to the problem. Because it bound all authors—-known and unknown—-Google could proceed to scan orphan works without having to worry. If an author later surfaced who didn’t want his book used, he could no longer sue Google. He could opt-out of the program and claim a check for the revenues associated with his book, but no more.

Some welcomed this solution to the problem, but others, including the Department of Justice, pointed out to the court that it would give Google a monopoly over orphan works. Because the settlement would only apply to Google, if another party like Amazon or the Internet Archive wanted to create its own digital library that included orphan works, it would not get the same protection.

And it wouldn’t be easy for other to get the same deal. Short of Congressional action, the only way a company like Amazon could get similar treatment would be to settle a class action suit of their own—a very difficult and time-consuming set of events to replicate. Additionally, because the authors and publishers who negotiated the Google deal are getting a cut of revenue, some have suggested that it would be in their interest to make sure Google remained a monopoly and would therefore not settle as easily with other parties.

What’s Next

Because class-action lawsuits can be as controversial as this one, the law requires that a court approve a settlement before it becomes binding. The court accepted over 500 briefs from various parties supporting or opposing the settlement and early last year held a hearing on the fairness of the settlement. It rejected the case yesterday.

The options available now to Google and the authors and publishers are:

  1. Continue litigating the original lawsuit, which is an unlikely scenario.
  2. Amend the settlement to make it opt-in, meaning that authors would have to give permission before their books are scanned.
  3. Appeal the judge’s decision to a higher court.

Judge Chin seemed to invite a new settlement, saying in his opinion that “Many of the concerns raised in the objections would be ameliorated if the [settlement] were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.”

In the New York Times, Robert Darnton, himself a librarian and a strident if highly-0informed critic of the deal, weighed in with this opinion piece:

This decision is a victory for the public good, preventing one company from monopolizing access to our common cultural heritage.

Nonetheless, we should not abandon Google’s dream of making all the books in the world available to everyone. Instead, we should build a digital public library, which would provide these digital copies free of charge to readers. Yes, many problems — legal, financial, technological, political — stand in the way. All can be solved.

The Chronicle of Higher Education carries a good interview with Pamela Samuelson:

It’s the only ruling really that the judge, I think, could have made. The settlement was so complex, and it was so far-reaching. With the Department of Justice and the governments of France and Germany stridently opposed to the settlement, it seems to me that the judge really didn’t have all that much choice. So the ultimate ruling, that the settlement is not fair, reasonable, and adequate to the class, is one that I think was inevitable.

The thing that surprised me about the opinion was that he took seriously the issues about whether the Authors Guild and some of its members had adequately represented the interests of all authors, including academic authors and foreign authors. That was very gratifying because I spent a lot of time crafting letters to the judge saying that academic authors did have different interests. Academic authors, on average, would prefer open access. Whereas the guild and its members, understandably, want to do profit maximization.

The EFF’s Corynne McSherry has this analysis:

On the policy front, the court recognized – as do we – the extraordinary potential benefits of the settlement for readers, authors and publishers. We firmly believe that the world’s books should be digitized so that the knowledge held within them can made available to people around the world. But the court also recognized that the settlement could come at the price of undermining competition in the marketplace for digital books, giving Google a de facto monopoly over orphan books (meaning, works whose owner cannot be located). The court concluded that solving the orphan works problem is properly a matter for Congress, not private commercial parties. Sadly, Congress has thus far lacked the will to do so. Perhaps yesterday’s decision will finally spur Congress to revisit this important issue and pass comprehensive orphan works legislation, that allows for mass book digitization.

That said, the court also got some things fundamentally wrong in its copyright analysis. For example, it states that “a copyright owner’s right to exclude others from using his property is fundamental and beyond dispute” and then proceeds to quote at length from the letters of numerous authors (and their descendants) who share the misguided notion that a copyright is, by definition, an exclusive right to determine how a work can be used. We respectfully disagree. Copyright law grants to authors significant powers to manage exploitation of creative works as a function of spurring the creation of more works, not as a natural or moral right. And those powers are subject to numerous important exceptions and limitations, such as the first sale and fair use doctrines. Those limits are an essential part of the copyright bargain, which seeks to encourage the growth and endurance of a vibrant culture by both rewarding authors for their creative investments and ensuring that others will have the opportunity to build on those creative achievements. Thus, as the Supreme Court has explained, such limits are “neither unfair nor unfortunate” but rather “the means by which copyright advances the progress of science and art.” If the legal issues raised in the underlying lawsuit are ever litigated on the merits, let’s hope this or any future judge keeps the traditional American copyright bargain firmly in mind.

Michael Liedtke of the Associated Press thinks this is a micvrocosm of the larger anti-turst and monopoly challenges facing Google:

This week’s ruling from U.S. Circuit Judge Denny Chin did more than complicate Google’s efforts to make digital copies of the world’s 130 million books and possibly sell them through an online book store that it opened last year. It also touched upon antitrust, copyright and privacy issues that are threatening to handcuff Google as it tries to build upon its dominance in Internet search to muscle into new markets.

“This opinion reads like a microcosm of all the big problems facing Google,” said Gary Reback, a Silicon Valley lawyer who represented a group led by Google rivals Microsoft Corp. andAmazon.com Inc. to oppose the digital book settlement.

Google can only hope that some of the points that Chin raised don’t become recurring themes as the company navigates legal hurdles in the months ahead.

The company is still trying to persuade the U.S. Justice Department to approve a $700 million purchase of airline fare tracker ITA Software nearly nine months after it was announced. Regulators are focusing its inquiry into whether ITA would give Google the technological leverage to create an unfair advantage over other online travel services. Google argues it will be able to provide more bargains and convenience for travellers if it’s cleared to own ITA’s technology.

In Europe and the state of Texas, antitrust regulators are looking into complaints about Google abusing its dominance of Internet search to unfairly promote its own services and drive up its advertising prices.

And Google is still trying fend off an appeal in another high-profile copyright case, one stemming from its 2006 acquisition of YouTube, the Internet’s leading video site. Viacom Inc. is seeking more than $1 billion in damages after charging YouTube with misusing clips from Comedy Central, MTV and other Viacom channels. A federal judge sided with Google, saying YouTube had done enough to comply with digital copyright laws in its early days.

One of my favourite comentators on Google is of course the one-and-only Siva Vaidhyanathan, who is quoted in this excellent Inside Higher Ed piece:

Siva Vaidhyanathan, a media studies professor at the University of Virginia and a notable Google gadfly, said the company overplayed its hand by essentially trying to rewrite the rules governing the copying and distribution of book content through a class-action settlement. “Google clearly flew too close to the sun on this one,” he wrote in an e-mail. “…This is not what class-action suits and settlements are supposed to do.”

Vaidhyanathan said that Google now faces the choice of either continuing to fight for its interpretation of copyright law in the courts or scaling back its plans for a digital bookstore. “If Google decides to take the modest way out, it can still ask Congress to make the needed changes to copyright law that would let Google and other companies and libraries compete to provide the best information to the most people,” the media scholar says. “Congress should have been the place to start this in the first place.”

 

 

 

 

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Jenna Newman on the Google book settlement

In the 1st issue for 2011 of the journal Scholarly and Research Communication comes a masterful exploration of the cultural and legal issues surrounding the Google book settlement by Jenna Newman. At 75 pages, this monograph-length essay is probably the most comprehensive and certainly the most current exploration of the issues underlying this giant experiment in digital publishing.

It’s not really possible to sum up the entire essay, so I’ll just cut to the chase and quote from her conclusion, which firstly establishes in extraordinary detail just how good the deal is for Google:

If the settlement is approved, Google can congratulate itself on a particularly excellent deal. It avoids years of uncertainty, not to mention ongoing legal fees, in litigation. It avoids prohibitive transaction costs by not having to clear rights individually for the works it has scanned already and all the works covered by the settlement and yet unscanned. It will receive a blanket licence to use a broad swath of copyrighted works, and it will enjoy an exclusive position, both as a market leader and with legal peace of mind, in the realm of digital rights: its private licence goes much further than current copyright legislation, particularly with respect to orphan works, for which rights are currently unobtainable in any market. Low transaction costs and legal certainty are key requirements for any mass digitization or digital archiving project (McCausland, 2009). The settlement offers both, to Google and Google alone. It will be years ahead of any potential competitors digitizing print works and may easily end up with an effective monopoly and a leading stake in the emerging markets for digital books. And all this costs Google only U.S.$125 million—a mere 0.53% of its gross revenue, or 1.92% of its net income, for 2009 alone (Google Inc., 2010b)

Newman suggests that th deal is far more equivocal for publishers and authors, but that given the other options on the table (including the risk of a music-industry style failure to establish a viable digital publishing platform until after piracy has eroded much of the value of the market), it may represent the “best deal available.”

But the real implications are for copyright law and communications policy:

The settlement may serve publishers’ and authors’ individual or immediate interests even as it erodes their collective and long-term ones. The public, too, has a significant vested interest in the subjects of the settlement—the books themselves, repositories to centuries of knowledge and creativity—as well as the legal and cultural environment the settlement endorses. A detailed account of the settlement’s economic and cultural costs and benefits is instructive, but more importantly the settlement highlights the structural and technological deficiencies of existing copyright law. Long copyright terms and the presumption of total rights protection have created a copyright regime that privileges the potential for commercial exploitation regardless of whether that exploitation is feasible or even desired by the creators themselves. This regime is also particularly ill equipped to recognize digital possibilities. Whatever happens to this settlement, such tensions continue to strain copyright’s rules.

A number of conditions on approval could address criticisms of the settlement, but perhaps the best way to ensure Google, publishers, and authors are all treated fairly is to pursue copyright reform, not private contracts, to address the legislative problems that the settlement tries to engage. Legislative changes with respect to intellectual property rights have been slow to reflect everyday technological realities. The existence of the settlement, and much of its reception, demonstrates that private interests and public appetites are eager to move beyond the limits of the current regulations. Copyright reform will be fraught with challenges of its own, but the existing legal framework—in Canada as in the U.S.—is increasingly inadequate for accommodating common and emerging practices and capabilities: copyright law has swung out of balance. The settlement may serve as an early test bed for certain possibilities, including digital distribution and access, and the imposition of limited formalities on rights-holders. However, as a private contract, it is an insufficient guide for legislative development. The trouble with copyright does not affect Google alone. The public interest demands more broadly applicable solutions, and these will be achieved—eventually, and possibly with great difficulty—through copyright legislation. We may get copyright reform wrong, as arguably we have done in the past, but that fear should be allayed if we also recall that we have the power to revise our legislative interventions until we get them right.

 

A bunch of links: casualised higher education labour, Hollywood movie betting, collapsing business models in TV, whingeing arts administrators, Siva Vaidhyanathan lecture, and more

From around the blogosphere and the web – some links:

1. In the Chronicle of Higher Education, Peter Conn argues we need to acknowledge that “full-time tenured and tenure-track jobs in the humanities are endangered by half a dozen trends, most of them long-term.” Heading the list is casualisation, followed by older faculty who refuse to retire, the rise of for-profit higher education and a university system that continues to pump out PhDs.

2. Clay Shirky calls on the guru of complex systems theory, Joseph Tainter, to explain the current predicament of television production as a business model. Bottom-line:

The most watched minute of video made in the last five years shows baby Charlie biting his brother’s finger. (Twice!) That minute has been watched by more people than the viewership of American Idol, Dancing With The Stars, and the Superbowl combined. (174 million views and counting.)

Some video still has to be complex to be valuable, but the logic of the old media ecoystem, where video had to be complex simply to be video, is broken.

3. The high arts lobby starts to get shirty with the lack of hand-outs from Peter Garrett, as a number of arts administrators whinge to Michaela Boland in The Australian. Notice the parade of usual suspects, including a festival director, a couple of theatre company managers and the CEO of the Australian Council. Because that’s what “the arts” is for journalists like Michaela Boland.

4. Siva Vaidhyanathan is giving a lecture at Vanderbilt University, which be podcast on Thursday. I’ll post something about that this week.

5. Lyn Gardner in the Guardian profiles artist-led communities.

6. By way of Tyler Cowen, a New York Times article about Hollywood’s quest to prevent betting markets. Both the Cantor futures exchange and Veriana Networks would allow investors to buy or sell — or “short” — contracts based on a movie’s box-office receipts, in essence betting on how well a film will do when released in theaters.

The Google Book Settlement grinds on

Sherwin Siy has a post that helpfully updates us all on the latest twists and turns in Google’s attempts to license the entirety of printed publishing (or as close as it can get to that, anyway).

Late on Friday, a federal court in New York received a new version of the Google Book Search settlement. As with the old version, the new one was drafted jointly by Google and its erstwhile litigation opponents: the publishers and authors who sued Google for scanning their books without permission.

Substantively, the new settlement bears a great resemblance to the old one. There’s a large number of changes (which are conveniently marked up in a downloadable file available from the settlement site here), but while they chip away at some of the rough edges of the earlier proposed settlement, the core of our antitrust concerns seems to remain.

Why is this? Orphan works and the ability of other  players to license and sell works online remains the big issue.

That main concern is that Google should not be the sole entity able to license the display of orphan and unclaimed works.

Nothing in the new settlement agreement seems to change that dynamic.

Siy continues,, explaining that:

Sure, other outlets might be able to embed a sort of Google Book reader into their web pages and act as resellers of the Google database, but that doesn’t create actual competition, especially if it’s Google-controlled information and software at the back end. All that the reseller would be doing is providing different window dressing and customer support.

Bottom line:

In the end, it’s still just Google alone in that market, and that’s something that is a real cause for concern.

Elsewhere: The Googlization of Everything

The Google book settlement: delayed indefinitely?

The New York Times is reporting that the Google book settlement has been delayed by the judge, perhaps sensibly given the scale of the objections raised against it.

While most readers of this blog will be well acquainted with what Google proposes to do (scan everything it can and pay copyright holders a royalty), it’s worth quoting Miguel Helft’s article and the judge’s comments:

“The current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors,” Judge Chin wrote. “Clearly, fair concerns have been raised.”

But Judge Chin also echoed comments made by the Justice Department last week that the settlement, if properly revised, could offer great benefits, most notably, by providing broad access to to millions of out-of-print books that are largely locked up in a small group of university libraries.

“The settlement would offer many benefits to society, as recognized by supporters of the settlement as well as D.O.J.,” he wrote, referring to the Department of Justice, which filed its own brief in the case last week. “It would appear that if a fair and reasonable settlement can be struck, the public would benefit.”

This suggests that the case has a good chance of success if it can negotiate the various objections raised to it, offering a potentially dazzling new vista for literary collection agencies and the possibility of real money for authors of long out-of-print books – but also, of course, the threat of the Googlization of Everything.

“The current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors,” Judge Chin wrote. “Clearly, fair concerns have been raised.”
But Judge Chin also echoed comments made by the Justice Department last week that the settlement, if properly revised, could offer great benefits, most notably, by providing broad access to to millions of out-of-print books that are largely locked up in a small group of university libraries.
“The settlement would offer many benefits to society, as recognized by supporters of the settlement as well as D.O.J.,” he wrote, referring to the Department of Justice, which filed its own brief in the case last week. “It would appear that if a fair and reasonable settlement can be struck, the public would benefit.

Google’s book search: A “disaster for scholars”?

Geoffrey Nunberg thinks so. Writing in the Chronicle of Higher Education, he points out the many appalling errors to be found in the book search engine, in part attributable to Google’s sketchy handling of publishing meta-data:

Start with publication dates. To take Google’s word for it, 1899 was a literary annus mirabilis,which saw the publication of Raymond Chandler’s Killer in the RainThe Portable Dorothy Parker, André Malraux’s La Condition Humaine, Stephen King’s ChristineThe Complete Shorter Fiction of Virginia Woolf, Raymond Williams’s Culture and Society 1780-1950, and Robert Shelton’s biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899 comes up so often, such misdatings are spread out across the centuries. A book on Peter F. Drucker is dated 1905, four years before the management consultant was even born; a book of Virginia Woolf’s letters is dated 1900, when she would have been 8 years old. Tom Wolfe’s Bonfire of the Vanities is dated 1888, and an edition of Henry James’s What Maisie Knew is dated 1848.

But it gets worse:

Then there are the classification errors, which taken together can make for a kind of absurdist poetry. H.L. Mencken’s The American Language is classified as Family & Relationships. A French edition of Hamlet and a Japanese edition of Madame Bovary are both classified as Antiques and Collectibles (a 1930 English edition of Flaubert’s novel is classified under Physicians, which I suppose makes a bit more sense.) An edition of Moby Dick is labeled Computers; The Cat Lover’s Book of Fascinating Facts falls under Technology & Engineering. And a catalog of copyright entries from the Library of Congress is listed under Drama (for a moment I wondered if maybe that one was just Google’s little joke).

Nunberg makes some good points. As Google continues to take-over the traditional functions of bibliographic referencing, the temptations for shoddy scholars to crib from its inaccuracies will multiply.

The Googlization of Everything

Robert Darnton has written a long and interesting article about the Google books class action at the New York Reveiw of Books, entitled Google and the Future of Books.

In the article, Darnton begins by describing a mythologised but historically extant “Republic of Letters” – the Enlightenment, if you like – inhabited by men like Voltaire and Rousseau, Jefferson and Madison. This Republic wasn’t always a wonderful thing, confined as it was to those rich and educated enough to gain entry, but it none-the-less represented a vision of free-and-frank intellectual exchange and discussion which has endured:

One way to understand this system is to draw on the sociology of knowledge, notably Pierre Bourdieu’s notion of literature as a power field composed of contending positions within the rules of a game that itself is subordinate to the dominating forces of society at large. But one needn’t subscribe to Bourdieu’s school of sociology in order to acknowledge the connections between literature and power. Seen from the perspective of the players, the realities of literary life contradicted the lofty ideals of the Enlightenment. Despite its principles, the Republic of Letters, as it actually operated, was a closed world, inaccessible to the underprivileged. Yet I want to invoke the Enlightenment in an argument for openness in general and for open access in particular.

Darnton argues there is a similar tension between the principles of free access and open information embodied by many libraries and educational institutions, and the money and power at stake in the information they generate, distribute and control. He points out that copyright is specifically set down in Article I of the United States Consititution ‘”for limited times” only and subject to the higher purpose of promoting “the progress of science and useful arts.”‘ In the 1780s this meant a 14 year term with one extension. Now, of course, copyright has lengethened to more than a century.

This long and interesting article is in many ways an elaboration and commentary on Lawrence Lessig’s work, but contains many fascinating observations of the contentious interface between the public and prviate spheres of knowledge. For instance, did you know that relatively obscure journals charge tens of thousands of dollarsz to public and unviersity libraries?

… the Journal of Comparative Neurology now costs $25,910 for a year’s subscription; Tetrahedron costs $17,969 (or $39,739, if bundled with related publications as a Tetrahedron package); the average price of a chemistry journal is $3,490; and the ripple effects have damaged intellectual life throughout the world of learning. Owing to the skyrocketing cost of serials, libraries that used to spend 50 percent of their acquisitions budget on monographs now spend 25 percent or less. University presses, which depend on sales to libraries, cannot cover their costs by publishing monographs. And young scholars who depend on publishing to advance their careers are now in danger of perishing.

But now, of course, one corporation is changing that business model: Google, with its ground-breaking settlement known simply as the Google Book Settlement. Although there has been some in depth commentary on this topic – most notably from Siva Vaidhyanathan – there has been suprisingly little attention paid to it in cultural and economics circles. When Darnton takes the time to read through the entire 134 page settlement, he is dumbfoudned by the scale of the settlement:

… here is a proposal that could result in the world’s largest library. It would, to be sure, be a digital library, but it could dwarf the Library of Congress and all the national libraries of Europe. Moreover, in pursuing the terms of the settlement with the authors and publishers, Google could also become the world’s largest book business—not a chain of stores but an electronic supply service that could out-Amazon Amazon.

The problem, Darnton realises, is that Google is not just creating the world’s largest library: it is also creating the world’s largest research infrastructure monopoly, one controlled in the end by the board of a for-profit corporation – for good or evil.

The money quote in Darnton’s article is this, which makes you realise the scale of the opportunities missed by the 1990’s IP gold-rush:

Looking back over the course of digitization from the 1990s, we now can see that we missed a great opportunity. Action by Congress and the Library of Congress or a grand alliance of research libraries supported by a coalition of foundations could have done the job at a feasible cost and designed it in a manner that would have put the public interest first. By spreading the cost in various ways—a rental based on the amount of use of a database or a budget line in the National Endowment for the Humanities or the Library of Congress—we could have provided authors and publishers with a legitimate income, while maintaining an open access repository or one in which access was based on reasonable fees. We could have created a National Digital Library—the twenty-first-century equivalent of the Library of Alexandria. It is too late now. Not only have we failed to realize that possibility, but, even worse, we are allowing a question of public policy—the control of access to information—to be determined by private lawsuit.