In Google Book Search Settlement, Readers Lose
The biggest development in the digital media world this week, by far, was the settlement of a pair of class-action copyright-infringement lawsuits brought against Google in 2005 by the Authors Guild, the Association of American Publishers, and several publishing houses. The compromise agreement, which was announced October 28 and now awaits approval by the federal courts, could eventually result in improved access to books, especially the millions of books that are no longer in print but are still covered by U.S. copyrights. It promises to free Google to move forward with its ambitious library digitization effort, which will put a vast collection of literature at the fingertips of students, researchers, and at least a few public library patrons. It should also placate the Chicken Littles in the publishing industry, who have spent years using every available means, including the Google lawsuit itself, to obstruct the sharing of knowledge enabled by the digital revolution.
But for readers—the group whose interests are closest to my own heart, and the only major class of stakeholders in the lawsuit whose interests weren’t being protected by a team of well-paid attorneys—the Book Search settlement contains some major disappointments. I should emphasize that I am not a lawyer, and I have only spent a few hours studying the settlement agreement. (It’s 323 pages long, which may explain why it took the parties more than two years to negotiate a solution.) But I’m 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.
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. These books—and there are millions of them—are in a painful state of limbo. They’re deemed commercially non-viable by their original publishers, so you can’t find them in most bookstores. Yet no one else can republish them without getting permission from the original copyright holders or their heirs or assignees—and for many so-called “orphan works,” these rightsholders can’t even be identified or located. So the only way to read one of these books is to find a copy at a used bookseller, or figure out which public or academic library owns a copy, and then physically travel there.
The 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. (Under U.S. law, the copyright on all works published before January 1, 1923, has irrevocably expired, and Google lets readers peruse and download these books for free. If you click here, for example, you can read my favorite novel of all time, E.M. Forster’s 1910 masterpiece Howards End.)
If Google had chosen to take the lawsuit to trial and prevailed, it might have been at liberty to do this, monetizing the practice (just as it monetizes all of its other services) through keyword-based advertising. Such a service would have been a great boon to readers everywhere. Indeed, when I interviewed a bunch of librarians about the Google initiative back in 2005, before the lawsuit, most of them were ecstatic: they’d been waiting for years for someone to come along and help them put their collections online. I bet Google could even have charged a little something for the service—after all, nobody else is trying to scan so many library books (7 million of them so far).
Alas, the nation’s authors and publishers organized a campaign to stop Google. Letting avarice run roughshod over common sense and the common good, the plaintiffs in Authors Guild et al. v. Google and McGraw Hill et al. v. Google argued that the very act of scanning an in-copyright book without the rightsholder’s permission is an egregious copyright violation. Even the short snippets of text that Google Book Search serves up among its search results were too much for these groups to stomach. (This despite the fact that the courts long ago ratified the inclusion of snippets in general Web search results as an example of “fair use” under copyright law.)
It quickly became clear that the plaintiffs in the lawsuits would sooner see out-of-print books remain in limbo forever than sacrifice one penny of potential profit to Google. No matter that these authors and publishers weren’t even marketing the books Google was scanning: if the rightsholders themselves couldn’t figure out how to make money on their out-of-print titles, no upstart search-gizmo company was going to, either.
It may surprise you that, as a writer, I’m on Google’s side in this dispute. But my point of view is that decent writers can always find ways to get paid for their work. They shouldn’t have to leech off the people who have the vision and the expertise to bring out the latent value in the world’s common heritage of information. More generally, I continue to be astonished by the hostility so many writers and publishers display toward Google, which, to my mind, is the best thing to happen to intellectuals since the First Amendment.
Apparently concluding that a compromise would be preferable to a risky, extended, and costly trial, Google and its opponents negotiated the settlement proposed this week. It is an exhaustive, labyrinthine document (and one you are free to download, seeing as government documents aren’t subject to copyright). The main provisions are these: The Authors Guild, the AAP, the publishing houses, and all members of the class represented in the action will drop the suit and waive all claims against Google. Google admits no wrongdoing, but will make payments totaling $125 million, including $45 million for the owners of the copyrights on the books it has already scanned—or about $60 per book, depending one how many rightsholders file claims.
Google is authorized under the settlement to continue the library scanning project. What’s more, it can sell access to the full text of the books it scans, in the form of subscriptions that will be available to institutions such as libraries and corporations, and in the form of individual books that consumers can download or read online. But the bulk of the revenues Google collects—63 percent, to be exact—will go to those books’ copyright holders. Google will pay $34.5 million to set up a new, independent Book Rights Registry to track the revenues and issue the payments. If they wish, copyright owners can choose to exclude their books from any or all these arrangements. (The remaining $45.5 million of the settlement payment will apparently go to the plaintiffs’ attorneys, though I couldn’t find this spelled out anywhere in the document.)
The parties to the settlement were anxious to project harmony and sunlight, repeatedly calling the agreement a win-win. “This historic settlement is a win for everyone,” Richard Sarnoff, chair of the AAP, said in a joint press release. “The agreement creates an innovative framework for the use of copyrighted material in a rapidly digitizing world, serves readers by enabling broader access to a huge trove of hard-to-find books, and benefits the publishing community by establishing an attractive commercial model that offers both control and choice to the rightsholder.”
“While this agreement is a real win-win for all of us, the real victors are all the readers,” chimed in Google co-founder Sergey Brin. “The tremendous wealth of knowledge that lies within the books of the world will now be at their fingertips.”
Perhaps—but at what cost? While the settlement does give Google the right to offer full access to the scanned books, the problem is that it’s likely to be at sky-high prices. The agreement provides two mechanisms for setting the cost of online access to books: either rightsholders can name their own price, or Google will automatically set a price between $1.99 and $29.99 using an algorithm designed, in the words of the agreement, to “maximize revenue for each rightsholder.” Neither option sounds very palatable to me.
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. Harvard University, for example, opted this week to cut off Google’s access to its in-copyright books (though it may continue to allow the scanning of its public domain books). “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,” Harvard University Library director Robert Darnton wrote this week in a letter to library staff quoted by the Harvard Crimson. Darnton continued: “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.”
And there’s another provision of the settlement that spells out, to me, just how parsimonious the plaintiffs’ attitude really is. Under the agreement, the authors and publishers give Google permission to provide every public library in the United States with free access to the books database. That sounds great, on the surface. As Authors Guild president Roy Blount Jr. put it in a message to members about the settlement, “Readers wanting to view books online in their entirety for free need only reacquaint themselves with their participating local public library: every public library building is entitled to a free, view-only license to the collection.”
But the devil, again, is in the details. If you read the agreement, you’ll see that it restricts each public library to exactly one Google terminal. Tens of millions of books online—but at any given moment, no more than 16,543 people are allowed to read them without paying. (That’s how many public libraries and branches there are in the United States, according to the American Library Association—one for every 18,500 Americans.)
That, to me, about sums it up. Even in this digital age, the organizations representing authors and publishers are saying that free access to out-of-print books should be restricted to people who can a) make the physical journey to a library and b) beat their neighbors to the computer room.
There’s something fundamentally medieval about the philosophy that seems to have guided the plaintiffs through the entire Google lawsuit: namely, that profits can only be protected by imposing scarcity. One gets the sense that if they could, the authors and publishers who sued Google would do away with libraries altogether—and that the bloody Internet would be next on their list. Fie on Google, fie!
Update, January 30, 2009: The parties to the Google Book Search settlement have begun the process of notifying authors and publishers about their rights and options under the settlement. I got a note from one of the firms helping to administer the settlement asking me to update this post with a link to the court-approved website where authors can find claim forms and the like. So: http://www.googlebooksettlement.com.
Update, April 18, 2009: O’Reilly Radar has published an excellent blog post by guest blogger Pamela Samuelson, a professor of law and information at the University of California, Berkeley, and a director of the Berkeley Center for Law & Technology, analyzing the Google Book Search settlement. She calls the proposed settlement “galling” and “worrisome” and points out that by acceding to the Author’s Guild and the AAP’s claims to represent entire classes of authors and publishers, Google has gained a monopoly on digital distribution of orphan works with “considerable freedom to set prices and terms”—a monopoly which would be very difficult for any other party, even Amazon or Microsoft, to challenge. Samuelson concludes: “The Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a major restructuring of the book industry’s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved as is.” Cory Doctorow at BoingBoing has a smart commentary on Samuelson’s post.
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