Google Book Settlement Revised

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As we continue to discuss Robert Darnton’s excellent The Case for Books, it may be important to include a simultaneous thread on the most recent developments in the Google Book Settlement.

Google’s revised version of the Settlement was submitted on Friday. The New York Times article covering this development can be found by clicking here. It includes a number of interesting links, including links to Google’s own posting regarding the revisions and those of The Open Book Alliance.

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15 Responses to “Google Book Settlement Revised”

  1. Anna Battigelli Says:

    Though it was obviously written before Friday’s settlement, Sergey Brin’s Op-Ed piece in the New York Times (8 October 2009) provides an overview of his take on Google Books. It can be accessed by clicking here.

  2. Dave Mazella Says:

    I haven’t seen any real analysis yet of how this will impact, for example, universities and academic users. Has anyone else turned up a more detailed analysis of how this might affect us? DM

    • Eleanor Shevlin Says:

      I am sure we’ll see a flood of analysis over the next couple of days. The amended settlement was just filed and (as would be expected) lengthy.

      Here’s a link to an overview of the settlement (hosted by Google). There’s a pdf with more details attached–from which I drew some of the highlights in the my comments that appear as part of the main replies here.

      Also, here’s a link to the 173-page amended agreement. It includes clauses that allow academic courses to use the Book annotation features (if not prohibited by the rightholder) (e, p. 53) as well as information about the implementation of price increases for institutional subscriptions based on the academic year (p. 60).

  3. Eleanor Shevlin Says:

    Among the highlights of the revised settlement are

    • the creation of independent, non-profit Book Registry that will function to assist Rightholders (part of original settlement but its role and capabilities are reiterated, clarified, and enhanced in the amended agreement).

    • the settlement is restricted to Anglo-American books (i.e., books registered with the U.S. copyright office and those published in Australia, Canada, the U.K. before January 5, 2009. Also, representation on the Board of Registry will include at least one author and one publisher each from Australia, Canada, and the U.K.

    • the Registry (whose operations, such as the settlement website used to assist in claiming rights to unclaimed works, will be supported by Google) will include an independent party who will oversee the interests of Rightholders of unclaimed books and inserts. Settlement funds (up to 25%) will be used to locate rightholders of unclaimed works.

    • the limit of additional new revenue models to
    1) Print-on-Demand
    2) Downloads of PDFs (limited to books not commercially available)
    3) Consumer subscription
    These models must be approved by the Registry.

    • the Registry will be authorized to agree to expand the number of public terminals in public libraries.

    • comic books will be viewed as periodicals, and periodicals are not covered in the amended settlement. (other clarifications regarding pictorial works and books for playing music also exist)

    • the time for claiming usage fees for unclaimed works has been expanded from five to ten years.

    • rightholders can determine the pricing of their works (including setting the price at $0) and also opt to make their works available through alternative licensing agreements (including Creative Commons).

    • “Most Favored Nations’ clause removed (the source of misunderstanding and often cited as evidence of Google’s ” monopolistic tendencies.” (See LibraryLaw blog)

    I will post more highlights later.

  4. Matthew Wilkens Says:

    A quick thought on the revised settlement (of which I’ve read most but not yet all).

    The biggest issue by far, both in the amended settlement and in the original version, is whether or not the Rights Registry can legitimately make future deals on behalf of all authors and publishers included in the class. (The class is newly limited to the U.S., Canada, U.K. and Australia.) The settlement says the Registry can; if that holds up, it’s fantastic news, since it provides a mechanism through which a huge number of books—including orphan works—can be made available for search, browsing, purchase, and research computation. It’s not just Google that would benefit from this; the idea is that anyone who wants to get into the book-search-and-resale business (*see note below) now has an entity to negotiate with. Right now, they’re just plain out of luck, since there’s no single entity to talk to. As I’ve said before, I think this will produce meaningful competition in an area where there’s currently absolutely nothing. But even if there’s no competition and pricing or other terms from the Registry are absurd (and there’s a new provision for a fiduciary representative within the Registry to look out for the interests of rightsholders, which would presumably include setting terms that someone, somewhere wants to accept), we’d still be no worse off than we are at the moment.

    But it’s this function of the Registry that’s on the shakiest legal ground, because it stands current copyright law on its head. The authors and publishers can negotiate collectively (i.e., without the explicit consent of every rightsholder) with Google as part of the class action suit (that’s the purpose of a class action, after all), but it’s less clear that they can set up such a mechanism to bypass copyright protections outside of a specific suit in the future. To be clear: I hope they can; I’m just not sure that they’ll be allowed to, and I’m sure Google’s competitors will argue that they shouldn’t be. The better solution, of course, would be to reform copyright law so that far more works fell into the public domain far more quickly, and to clarify that copying books for purposes of search and indexing is fair use. But I don’t think that’s likely to happen soon (or ever).

    Otherwise, the amended settlement seems fine to me, and it makes some minor tweaks that are for the good. But the big picture is unchanged: It was a good thing to begin with and it’s a good thing still. Oh, and it’s a welcome change that unclaimed funds now go to locating authors and to literacy charities rather than to existing rightsholders (that was always a ridiculous cash grab by the rightsholders).

    *Note: This whole mess, including the book sale provisions that are dominating the discussion, could have been avoided if it were clear that copying books in order to index them was protected by fair use. I don’t think Google much wanted top go into the bookselling business, but the publishers and authors have essentially negotiated Google setting up a new business model for them as compensation for not holding Google hostage to a massive copyright infringement lawsuit. Google decided it was cheaper (including the cost of risk to their core business) to comply than to fight. What disappoints me is that we won’t get out of all this a clear establishment of search and indexing (and related computational methods) as fair use. I fear that every company that enters the book search business will be forced to sell books, too, or to pay in some other way for something that should be a free and protected use. It’s the publishers and lawmakers who are responsible for this problem, not Google.

  5. Eleanor Shevlin Says:

    Many thanks, Matthew, for offering more details about the Registry and the legal uncertainty surrounding it. I had hoped to post more yesterday, but I didn’t have a chance (and I am still working through the whole document).

    I also appreciate your “Note.” Your remarks about Google being pretty much forced to enter the bookselling business to avoid the copyright suit match my assessment of the situation. And the potential fallout for the book search business is indeed not something for which Google bears the responsibility. I do think that Google initiated its GBS project because of an interest in harnessing technology to create new ways of working with information found in books and that they did so with much naivete about and little thought or understanding of publishing as an industry (nor of authors and publishers). In interviews Ken Auletta often makes similar points about Brin and Page and the ways their “engineering” perspective has colored and directed them.

    • Matthew Wilkens Says:

      Mostly agreed re: Google’s underestimation of big content’s willingness to fight. I presume their pile of cash buys them a whole lot of smart, legal and otherwise, but maybe they were too quick to assume that the publishers would go along with something that’s obviously good for everyone involved, but which they (the publishers) don’t control.

  6. Anna Battigelli Says:

    This is both a messy and interesting problem. Is it problematic to have copyright law changed through a class action suit? And are we now confronting a tension between the right of the individual copyright holder to profit from her or his work and the right of the public to have access to its cultural heritage?

  7. Matthew Wilkens Says:

    I agree in principle that it’s bad to make important law via business-driven litigation. But copyright is such a disaster at the moment, and *some* access to orphan works (and to the whole corpus in digital form) is such a good thing, that I’m in favor of this particular outcome. Plus, it seems to me that there’s very little chance of copyright issues changing without this settlement going through (they’ve never gotten better in the past, only steadily worse). Plus, plus there seems to me a *good* chance of orphan works reform succeeding if the settlement is approved, since there will be powerful, monied interests driving it forward rather than strictly impeding it. So: win-win, I guess, is my take, even if it’s not the ideal outcome.

    As for conflict (and a bad balance) between encouraging creativity and ensuring public benefit, my take is that, alas, we passed that point long ago. There’s not perfect consensus, but the economic ideal copyright term is probably around the 14 years originally granted by the copyright act of 1790 (which was in fact 28 years, since it allowed for one renewal). The ideal duration may have come down over the years, since it’s gotten much cheaper to create imaginative works over the years. So maybe 28 years was about right at the time. But the term was extended in 1831, and we’ve never since had an economically rational regime. I think Congress has demonstrated (this was the plaintiffs’ argument in Eldred) that copyright terms will be extended infinitely from now on. This is very, very bad. If siding with an enormous corporation makes things a little better on this front (to say nothing of the other, access-related benefits)—and sets up a situation where they might get significantly better—I’m willing to side with that corporation against the other, demonstrably awful corporations.

  8. Eleanor Shevlin Says:

    One could well say that the history of 18th-century copyright in Britain is a history of business-driven legislation. France, however, offers a somewhat different case. In France the Decree of 1793, enacted by the National Assembly, invested authors with the exclusive rights to reproduce works for the duration of their life, and those rights would extend to heirs or assignees for ten years after their death. Unlike the situation in Britain the law made no provisions for registering one’s right, and depositing copies was voluntary. The law’s immediate effect on the French book trade was to render “book publishing commercially unviable” by eliminating all protection (Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789–1810 [Berkeley and Los Angeles and Oxford, 1991], p. 222). French copyright law has often been viewed as championing the droits d’auteur foremost, but too often other intentions of the law have been overlooked: The “revolutionary legislators produced a legal conception of authorial identity that did not merely consecrate, but also limited, the author’s power of self–determination, for the sake of the public good” (Hesse, 123).

    Although the U.S. followed the British tradition in many ways, in colonial America copyright was an authorial affair, with authors and not printers or booksellers initiating the movement for legislation protecting rights. From the perspective of the colonial book trade, the infrequency with which native productions might warrant reprinting and the ability to reprint British titles freely gave members little reason to pursue legal regulation. The 1790 copyright act’s fourteen-year term (with a potential renewal term for living authors) that Matt mentions above was patterned after the fourteen–year term found in the 1710 British act. While it protected charts, maps and books, it extended rights only to United States citizens and residents. The French, in contrast, extended protection to foreign works and thus was the first case of international copyright in the West. A more wholesale embracing of international copyright came about with the Berne Convention of 1886–but the US did not participate in the Berne Convention until about two decades ago–in 1989. (In 1891 the US did finally allow foreign works to be protected if certain conditions were met). We see some of these national differences still playing out today in the generally hostile attitudes toward Google by European countries, often invoking the moral rights of authors.

    Legal scholar Jane Ginsburg has written on the somewhat false binary that has been erected between Anglo–American and French traditions of copyright: Jane C. Ginsburg, “A Tale of Two Copyrights: Literary Property in Revolutionary France and America” in Carol Armbruster (ed.), Publishing and Readership in Revolutionary France and America: A Symposium at the Library of Congress, Sponsored by the Center for the Book and the European Division (Westport, CT and London, 1993), 95–114; this article has been widely reprinted. She has also written on the history of copyright as it relates to current arguments about the “public domain”; see Jane Ginsburg, “‘Une Chose Publique?’: The Author’s Domain and the Public Domain in Early British, French and US Copyright Law,” Cambridge Law Journal 65.3 (2006): 636–70 (abstract).

    Matt, your comment that the “ideal duration may have come down over the years, since it’s gotten much cheaper to create imaginative works over the years” is quite interesting, for it seems to emphasize those producing (the publishers) the work almost exclusively. Personally, I do think a term within the range of 14 to 28 years strikes the right balance. I would side for the shorter end of this period in some ways, save for concerns about “moral rights” of artists and their ability to exercise control over the uses to which their works are put (car jingles or quotes juxtaposed with an unrelated image are not typically problems academic authors have to face).

    • Matthew Wilkens Says:

      Thanks for bringing Hesse’s and Ginsburg’s work to my attention; my reading list just got a little longer :). Two thoughts:

      1. I do think that the costs of creative work have come down quite a lot over the last couple hundred years, and not just for publishers (though certainly for them, too!). Even without considering music and visual arts, where the change is maybe even more dramatic, research for a novel, say, is much faster and easier thanks to the Internet, many archives are available without travel, composition and editing are faster and easier on computers, collaboration/feedback/proofing are faster and require less effort/expense, etc. Taken together, these are pretty significant. And then there’s the fact that production and distribution of the finished product (the publisher’s direct costs) are really author’s costs, too – if they come down, the book doesn’t have to make as large a gross to return a profit, and the author makes more money for the same level of sales (or prices come down and sales go up).

      2. As for the moral rights of the author, I guess I’m not convinced that they exist, at least not in the sense of a necessary right to exclusive profits by way of control over copying. Intellectual property is much different from physical property. If I copy a book that you possess, you still have the book — I haven’t deprived you of anything, though I may have made it hard for you to sustain a business model that depends on that book being scarce. At bottom, it would be a great public good if everything could be copied freely. This is our baseline position: anything goes. But then we notice, as an empirical matter, that this makes it hard for writers to make a living, and that as a result there isn’t as much good work to copy as we would like. (There’s still a lot, of course; it’s not as though there was no creative work before the eighteenth century.) So we say OK, we’ll use the coercive power of the state to secure for you, the author, an artificial monopoly on something that would otherwise be freely available to everyone. We’ll forgo the short-term good of most of the people in favor of your private profit. But we’re not doing this because we like you or favor you; we’re going to get your work in return, after a fixed period. That’s the deal. Don’t like it? Well, no one says you have to take the deal; if you don’t think it’s worth it, you can always do something else. That’s all copyright is: an economic deal.

      I can see the point about car jingles and such, but I’m not sure I take it as much of a problem. When work is well and truly in the public domain, people can do with it what they want, regardless of the creator’s wishes. That strikes me as a benefit, not a drawback. I suppose there could be provisions in an ideally revised copyright regime to protect authors from having their names attached to bowdlerized versions of their work, but maybe that would fall under current versions of slander or libel?

  9. Eleanor Shevlin Says:

    I discovered Jane Ginsburg‘s work early on while working on the early history of British copyright law. . When I was checking for the online abstract to her “Une Chose” article, I discovered a reply that she and Paul Goldstein sent to the US copyright office about orphan works, but did not include it last night, for it is from 2005.

    As for your points,

    1) Your clarifications about electronic changes to authorship are helpful. Yet not all novelists or poets though are conducting research for their works. And not all, even today, are composing by computer. Neil Gaiman, for instance, uses fountain pens for writing. A.S. Byatt also writes first with pen on A4 paper she and claims to have about 200 fine, black liner pens; she has someone in Wales type it up–evidently using voice software recognition, though!

    2) While I think the arguments about moral rights often go far too far, I don’t think they should be completely discounted, so it seems that we just disagree here.

    And, yes, of course there were plenty of creative works pre-18th-century. Yet authorship as a concept has a history.

    In Britain the copyright battles during the 18th-century were not legal debates between authors and publishers-booksellers, but between publisher-booksellers and other publisher-booksellers. Authors and their need to make a living were not at the heart of 18th-copyright legislation and court cases in Britain by any means.

    • Matthew Wilkens Says:

      Good points all, and not ones that I’d disagree with, except, as you note, perhaps on the matter of moral rights. Thanks for the link to Ginsburg’s piece on orphan works. And for the amusing story of A.S. Byatt’s voice-recognized manuscripts!

      One small follow-up to 1.) above: You’re certainly right that not every author composes on a computer. Even leaving aside efficiencies in research and collaboration, though, the Marxist in me would say we’re talking about something like “socially necessary labor time,” rather than the specific practices of any individual author. If some authors choose to forgo technological efficiencies (or just write more slowly than others!), they just give up potential profit and move the (hand-wavingly defined, I’ll admit) average cost of creation a fraction higher.

      But in any case, while I find this issue of production efficiencies in the arts intriguing, I know it’s probably not critical to our larger discussion.

  10. Eleanor Shevlin Says:

    In a way this drift in discussion is a bit of digression (and an enjoyable one for me), but in another way, changes in the conditions of production and of the communication circuit as a whole are also why these discussions and lawsuits are taking place.

  11. Eleanor Shevlin Says:

    Robert Darnton’s response to the November 13th filing appears in the latest issue of The New York Review of Books (Dec. 17, 2009); a brief summary is offered in a comment on a later emob posting.

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