Last March the Google Books Settlement was rejected by U.S. Circuit Judge Denny Chin in Manhattan, marking another chapter in the class action lawsuit involving Google, the American Authors Guild, and the Association of American Publishers. The suit had been filed in 2005; an agreement was reached in October 2008 and was amended in November 2009. The long-awaited announcement was celebrated by many, including the Open Book Alliance, which includes members like Amazon, the American Society of Journalists and Authors, Internet Archive, Microsoft, National Writers Union, Special Libraries Association, and Yahoo! Google’s managing counsel, Hilary Ware, called the decision “disappointing” and said the company was considering its options.
Pamela Samuelson, a copyright expert and professor of law at the University of California at Berkeley, stated that it was the only decision the judge could have made as the settlement was so “complex and far-reaching” (Parry). The U.S. Department of Justice was against the settlement, as were the governments of France and Germany. The judge took into consideration the fact that the suit did not adequately represent all authors. Academic authors and guild authors have different goals: academic authors generally want their work in an open access forum while guild authors understandably want to maximize their profits.
Orphan Works
An important issue was copyright and orphan works. Samuelson estimates that 70 percent of the books in the Google Books collection are in copyright but are out of print (Samuelson). Many of these books are called orphan works because the rights holder cannot be located, for example because publishing houses have closed, gone bankrupt, or merged, or the author has passed away and quite often people or companies are not aware that they are the rights holders. (The other two types of books are those out of copyright altogether, which are accessible to anyone, and those still in copyright and still in print.)
Many institutions would like to see orphan works available but they hesitate to scan them because of the copyright risks associated with it – fines can reach up to $150,000 per book. Congress has discussed legislation but nothing has passed as of yet (Samuelson). In Canada, licenses for the use of orphan works can be applied for after there has been reasonable efforts made to locate the rights holder through the Copyright Board of Canada (“Orphan Works”). Samuelson points out that the settlement would have granted Google five different licenses that would normally be granted by Congress:
1. A license to scan and store all the books
2. A license to make non-display uses of them for purposes such as improving search technologies and automated translation tools
3. A license for non-profit researchers to engage in “non-consumptive” uses – research for academic purposes
4. A license to give “library digital copies” of the books scanned from library collections back to those libraries to make certain kinds of uses of the works
5. A license to commercialize all of the out-of-print books in the corpus (Parry)
No other company would have been granted these licenses, which would in effect give Google the “exclusive right to commercially exploit millions of orphan books” (Samuelson). Eric Fraser says that the settlement would have given Google a “treasure trove … Google will be able to scan, copy, index, display, and sell access to every orphan work.” No one has ever been able to do this. The Open Book Alliance voiced concerns over Google’s permanent competitive advantage, saying the settlement “usurps the role of Congress” by giving Google – and only Google – special rules.
Opting Out
Another issue involved in the rejection of the settlement was the opt-out model. Normally, a project like the Google Book collection would require Google to actively negotiate a contract with every rights holder and come to an agreement. Fraser states that every entity “in America lives firmly in the opt-in world.” The settlement would have flipped this model: Google would create the digital library and it would have been up to the copyright holder to opt out of the arrangement by April 2011. Fraser states this shift might cause “legions of copyright owners to unwittingly give up their rights.” He adds that no other “firm has ever been able to so dramatically flip the default position of copyright law.” An additional problem with this model was the large number of authors who were unknowingly in the system, and would therefore not even know they needed to opt out.
What’s Next?
Samuelson says there are two options: litigation or a new settlement. The publishers and the Authors Guild have made it clear that hey are interested in a new settlement and the judge was encouraging one (Parry). Last February the Department of Justice was urging an opt-in model but Google’s lawyer said that was not acceptable (Parry).
Google has plans for two business models: consumer purchases and institutional subscriptions. One of the pricing options for the consumer purchases would be established by a “pricing algorithm to maximize profits” (Fraser). Last December Google eBooks was launched. Publisher’s Weekly noted that it instantly became the largest e-book provider in the world. The Open Book Alliance said that efforts to monetize their digitization should dispel “any remaining notion that Google is scanning books for some higher, altruistic purpose.” Shortly after launching Google eBooks, Google purchased eBook Technologies, “a company that focuses on hardware and software distribution of e-books and e-book readers” (Parr). Parr speculates that it is not the hardware and software that Google is after – rather it is the patents that the company owns. The former president and the CEO of the company are the inventors of several e-book patents that Google needs in order to move forward.
In July Judge Chin expressed frustration that the six-year-old dispute remained unsolved and said if the parties could not come to an agreement in principle by September 15, 2011, he would set a deadline for the “parties to prepare for a possible trial” (Stempel). Michael Boni, a lawyer representing the Authors Guild, told the judge they were trying to work out an arrangement with an opt-in structure.
All stakeholders want a settlement which is fair to all involved – libraries, authors, publishers, and other e-book sellers. Ivy Anderson, Director of Collections at the California Digital Library, is torn about the settlement. On the one hand she is flabbergasted at the thought of Google creating “an artificial revenue model for works that are long out of print, books that would no longer exist at all outside of used bookstores if the libraries themselves hadn’t purchased and maintained them at great expense over decades.” However, she does add that libraries took a risk engaging in a partnership that had many unanswered questions and was entangled in legal issues. She points out that in order to digitize the CDL collection it would have required half a billion dollars and 150 years (Anderson). These funds are simply not available from the public coffers.
Google’s accomplishment should not be underestimated: they have created a public good. This is one aspect that concerns Pamela Samuelson. She call it the “too big to fail” problem: nothing in the settlement addresses the issue of what happens if Google decides they no longer want to be in the digital book industry. There is nothing to prevent them from shutting it down or selling it to the highest bidder. She says that when you create a public good this substantial, you have public trust responsibilities. There must be a mechanism in place that preserves this important piece of cultural heritage (Samuelson).
References
Anderson, Ivy. (2010) “Hurtling toward the Finish Line: Should the Google Book Settlement Be Approved?” Against the Grain 22, no. 3: 18-22.
Fraser, Eric M. (2010). “Antitrust and the Google Books Settlement: The Problem of Simultaneity.” Stanford Technology Law Review 4. Retrieved from: http://stlr.stanford.edu/pdf/fraser-antitrust-and-google-books.pdf
Open Book Alliance. (2010) “The Proposed Google Book Search Settlement: Fact vs. Fiction.” Retrieved from: http://www.openbookalliance.org/wp-content/uploads/2009/08/Google-Book-Settlement-Fact-and-Fiction.pdf
“Orphan Works.” Wikipedia. Retrieved from: http://en.wikipedia.org/wiki/Orphan_works
Parr, Ben. (2011, January 14) "Why Google Acquired eBook Technologies." USA Today. Retrieved from:
http://content.usatoday.com/communities/technologylive/post/2011/01/why-google-acquired-ebook-technologies/1
Parry, Marc. (2011, March 21) “A Copyright Expert Who Spoke Up for Academic Authors Offers Insights on the Google Books Ruling.” Chronicle of Higher Education. Retrieved from: http://chronicle.com/article/A-Copyright-Expert-Who-Spoke/126877/
Samuelson, Pamela. (2009, April 17) “Legally Speaking: The Dead Souls of the Google Booksearch Settlement.” O’Reilly Radar: Insight, Analysis, and Research about Emerging Technologies. Retrieved from: http://radar.oreilly.com/2009/04/legally-speaking-the-dead-soul.html
Stempel, Jonathan. (2011, July 19) “Frustrated Judge Pushes Google Digital Book Deal” Reuters.com. Retrieved from: http://www.reuters.com/article/2011/07/19/us-google-books-idUSTRE76I4AK20110719
Linda Ecclestone is a library technician at Lasalle Secondary School in Sudbury. She is also working part time on her masters through the University of Wisconsin, Milwaukee School of Information Studies. ecclesl@rainbowschools.ca
