More comments on the Google-Publisher settlement

Here are some more comments from the press and blogosphere.

From Reyhan Harmanci at the San Francisco Chronicle:

…[Allen] Adler, of the [AAP] , compared the new independent, not-for-profit Book Rights Registry to the music industry’s American Society of Composers, Authors and Publishers (ASCAP), which monitors and compensates musicians for live and recorded performances of their music. "It’s the same concept – a central entity that protects rights holders through third-party licensing," he said….

San Francisco Electronic Frontier Foundation staff attorney Corynne McSherry said she is "still digesting" the agreement but had some early thoughts:

"I will tell you, frankly, that I kind of wish this case had gone to litigation. I think Google had a great fair-use defense," she said. "A ruling from the court would have been good for everyone. It potentially could have fostered other offerings, based on that legal certainty" if Google had won.

Brewster Kahle, founder of the Internet Archive, which is based at the Presido and has partnered with Yahoo, Microsoft and 135 libraries to create the Open Content Alliance, said the agreement moves libraries "toward a monoculture."

"One company is trying to be the library system," Kahle said, speaking of Google’s plans to create a subscription service for library collections. "This is not good for a society that is built on free speech. Let’s have the World Wide Web rather than the iTunes of books."

From Mathew Ingram at MathewIngram.com:

This settlement is a huge step forward for online and electronic access to books. As Google has repeatedly argued, this will make it substantially easier for authors and publishers to find, distribute and monetize out-of-print books — in effect, creating or enhancing a “long tail” for book publishing. It will also make it easier for people to purchase electronic books, and for libraries to provide electronic access to books in their collections for readers and researchers alike (as part of the settlement, Google will provide free access to millions of scanned books through public libraries and universities)….

From Mike Madison at Madisonian:

…Has Google backed away from an interesting and socially constructive fair use fight in order to secure market power for itself?  I wrote early on that I would be disappointed if Google didn’t see the case through to judgment, and at one level, yes, I am disappointed.

But there is a big silver lining for me.  The proposal offers a new and larger set of questions, questions that have surrounded Google generally for some time but that the proposal puts into more concrete focus:  Are we seeing the early stages of the beginning of the end of copyright law as we know it?  The “standard” account of copyright, if such a thing still exists, posits a statutory allocation of interests between authors and readers, followed by institutional arrangements in specific contexts (fair use, voluntary licensing, collective rights management, compulsory licenses) to tweak that allocation at the margin, where problems arise.  It has been my sense for some time that in many information policy debates, the default statutory arrangement no longer commands automatic attention as the presumptive center of the copyright universe.  Institutional and disciplinary interests and arrangements of various sorts (technical architectures, commercial enterprises, new institutions such as open source licensing and Creative Commons) have not displaced the statute entirely, but instead have begun to push the statute to a place where it negotiates for attention as a normative landmark.  Fighting over the scope of section 106 (the copyright owner’s exclusive rights) and section 107 (fair use) sometimes seems very 20th century.  I suspect that the Google Book Search settlement will reinforce and perhaps accelerate that trend….

From the University of Michigan in a press release (separate from the joint university press release):

Why does the University of Michigan support this settlement agreement?

On balance, we believe the agreement is consistent with the Library’s mission and serves the public interest by providing unprecedented access to these materials. The agreement offers our Library the opportunity to do the following:

  • Make it possible for our academic community to find and use the full text of millions of books online.
  • Protect our holdings against loss, damage, or deterioration. For example, in the event of a catastrophe such Hurricane Katrina, which destroyed thousands of volumes at New Orleans area libraries, we would have digital surrogates for print materials.
  • We can now more easily create a resource that academic researchers can use to perform large-scale analysis such as data mining or computational linguistics, analyses of a sort not be permitted through a generic web interface such as Google Book Search….

What does the settlement mean for the HathiTrust?

The HathiTrust has been designed first and foremost as a collaborative preservation archive for materials in libraries, and would have fulfilled this role, whether or not Google and its plaintiffs had settled their dispute. The agreement, nevertheless, permits the establishment of a library digital copy of works digitized by any or all libraries (not just Michigan) under the terms of the settlement. The HathiTrust will make it possible for libraries to collaborate in this critical work, providing a secure, stable and permanent home for digitized copies of library materials….

From Neil Netanel at Balkinization:

…[C]opyright holders will have the right to opt-out of the Project for any given book, but the default rule will be that Google may display 20% of the text of copyrighted out of print books and may sell access to viewing the entire text online. Google will also continue to be able to display and make available for user download the full text off public domain books in response to user’s search queries. However, Google will no longer display short snippets of copyrighted books that remain in print without first obtaining copyright holder permission. Portions larger than short snippets of such books will also be made available for display, online viewing, and download per agreement with each copyright holder. (The settlement agreement actually uses the term "commercially available" rather than "in print," suggesting that books that are made available solely online, such as through Amazon.com’s Kindle Books service, will be deemed to be "in print" for purposes of the settlement.)…

So in many ways the proposed settlement is a win-win-win-win (for Google, the copyright holders, the libraries, and the public). But there are some causes for concern as well. Perhaps most importantly, the settlement leaves undecided the issue of whether Google’s scanning of the entire books and display of snippets is a fair use. Many observers, including me, believed that the courts would ultimately hold that it is a fair use, and thus set important precedent establishing that such "transformative uses" of copyrighted works — uses that serve the shared goals of copyright and the First Amendment — do not infringe copyright. Google’s settlement for a $125 million payment and abandonment of its fair use defense (as well as its agreement to stop displaying short snippets of copyrighted in print books without obtaining copyright holder permission), may well leave others in a far weaker position to enter the market for online book searches and digital archives and may make it more difficult to claim that such uses of books do not harm a potential licensing market, which claim carries considerable importance for successfully asserting fair use. The proposed settlement also provides that Google may not enjoy the benefit of developments in fair use doctrine that bear on its Book Search Project, so Google has no incentive to support other book archive and search services’ fair use claims….

[T]he bottom line is that Google is left with a de facto monopoly over this "universal library" service and, as I have discussed in a recent article, potential competitors face a higher barrier to entry than if Google had fought and prevailed on fair use (or if Congress enacts a statutory license for such uses)….

From Chris O’Brien at the Mercury News:

When I heard Google had settled its feud with book publishers, I knew exactly whom I wanted to call first: Brewster Kahle, the digital librarian who is the founder of the Internet Archive….

Kahle, who was also critical of the [Google] plan, helped put together the Open Content Alliance, a competing venture of libraries and tech companies such as Yahoo that sought to scan millions of books and make them available for free.  Google’s plan was to build a new kind of bookstore. Kahle and the alliance want to build a new kind of library….

[H]ad [the settlement] changed Kahle’s view of Google’s program?  Nope.

"When Google started out, they pointed people to other people’s content," Kahle said. "Now they’re breaking the model of the Web. They’re like the bad old days of AOL, trying to build a walled garden of content that you have to pay to see." …

But Kahle and the Open Content Alliance have a better vision….[It] is trying to determine how to create digital copies of in-copyright works that you can "borrow" for a limited time for free, in the same way you check out a book from the library today….

From Wade Roush at xconomy:

…[The settlement] 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’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….

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….

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….

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….But…[i]f you read the agreement, you’ll see that it restricts each public library to exactly one Google terminal….

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!

From Dugie Standeford at Intellectual Property Watch:

…The deal has implications outside the US, said UK intellectual property lawyer Laurence Kaye. It “shows that Google’s activities beyond pure search are within the boundaries of copyright and sets the scene for more licensing deals,” he said. These could be “machine-to-machine” direct licences such as those under the Automated Content Access Protocol (ACAP), arrangements between individual content owners and Google, licences granted by collecting societies, or something else, Kaye said.

“It’s a good day for copyright,” Kaye added.

ACAP Chair Gavin O’Reilly welcomed the settlement, saying it “paves the way for all rights holders, regardless of their chosen business model or rights management systems, to get the appropriate reward for their efforts – while at the same time ensuring the widest possible access.”

The agreement shows that it is possible for industries with diverging interests in the digital environment to find mutually beneficial solutions, said a spokesman for the European Commission Information Society and Media Directorate-General. Consensus is a key element of the Commission’s content online initiative, he said….

From Stanford University in a press release:

Stanford has joined with the University of Michigan and the University of California in supporting a proposed legal settlement that could allow their libraries to digitize millions of books through the Google Book Search project….

“With other libraries, those of the University of California and the University of Michigan, we have been negotiating for almost two years with Google and the plaintiffs to shape this agreement for the public good,” said Michael A. Keller, Stanford university librarian, director of academic information resources, founder and publisher of HighWire Press and publisher of Stanford University Press….

“I think this proposed settlement will break the logjam that has locked up orphan works for so many years,” said Walter Hewlett, a former trustee and member of Stanford’s ad hoc committee on the Google Book Search project….

While the universities have not unanimously agreed to all aspects of the proposed settlement, they believe it is favorable overall to the principles and intentions that led them to join the program….

The project would create a first-ever database of both in-copyright and out-of-copyright (public domain) works on which scholars can conduct advanced research (known as “the research corpus”). For example, a corpus of this sort would allow scholars in the field of comparative linguistics to conduct specialized large-scale analysis of language, looking for trends over time and expanding our understanding of language and culture.

The project also would enable the sharing of public domain works among scholars, students and institutions. Not only would scholars and students at other universities be able to read these online, but this would make it possible to provide large numbers of texts to individuals wishing to perform research….