SPARC offered a free webinar on the Google Books settlement today, with attorney Jonathan Band. Band represented the national library associations in connection with the settlement. He has written extensively on the GBS, producing the widely used Guide to the Perplexed, and is the architect of the oft-consulted “GBS March Madness: Paths forward for the Google Book Settlement” diagram. (Thanks to SPARC for that wording.)
Here are some of my notes from the webinar…all errors, omissions, and confusion are mine!
- Basic problem: Copyright law acts as an obstacle to the mass digitization of books. About 70% of books in the Library of Congress are in copyright but out of print: orphan works. This is what the discussion is about. There’s no publisher to talk to about clearances for these books. Very large number of books + complex copyright laws creates hugely expensive problem.
- In 2004, Google proposed to sign partnerships with large research libraries to scan all their books & display snippets (a couple of sentences around a search term, no more than 3 terms per book) online. This is still what you see in Google Books unless the book is public domain or in partnership with Google.
- Also, Google was going to give libraries digital copies of the books that were scanned. Currently, a lot of those digital copies are held in the Hathi Trust. (Rather than have each library participating in the Google project have its own copy and figure out what to do with it–the Hathi Trust is the shared repository for those copies.)
- The legal theory that Google used for this was fair use. They also offered an opt-out to publishers.
Image from State Library and Archives of Florida.
- In Oct 2005, the Authors’ Guild and American Association of Publishers filed class action suits against Google. Argument: It was not fair use for Google to scan all these books into its database. Snippet display not as much of a concern as Google scanning all the books and providing copies to the libraries. (Libraries were never sued.)
- Settlement discussions started shortly after the suits were filed. Three years of quiet while discussions progressed.
Image from New York Public Library.
- In Oct 2008 the Google Books Settlement was announced, and it was a doozy. Its terms went far broader than the initial project, which were just scan and snippet display. The settlement created two subclasses for the class action suit: all authors of books with US copyright, and all publishers of books with US copyright.
- Proposed terms of the settlement for in-copyright, out-of-print (“orphan”) books: 1.) online preview display (up to 20% of the book, several pages before and after search terms) 2.) option to buy within the US 3.) institutional subscription (for an annual fee, authorized users can see the whole book) 4.) free public access at public libraries–users could access the entire book from a single computer terminal.
- Because the suit was class action, the settlement had to be approved by a judge.
- The Dept of Justice raised objections: 1.) the settlement was much broader than the original proposal; 2.) the class members were too diverse to constitute a legal class: academics, foreign rights holders, rights holders of orphan works; 3.) competition concerns: display services only available to Google, not to any other competitors.
- Dept of Justice proposed cutting back on the settlement to scan and snippet display, and all the other features on an opt-in basis only.
- After negotiation, the parties created an Amended Settlement Agreement, which eliminated foreign books from the agreement.
Image from LSE Library.
- In Feb 2010 a Fairness Hearing was held. All parties presented views to Judge Denny Chin.
- Chin deliberated for another year.
- In March 2011 Judge Chin rejected the settlement. Main reason: the settlement was opposed by many class members. (However, the vast majority did not oppose it actively.)
- Chin’s concerns included: that copyright permissions should be an opt-in process (not opt-out), and that class members have diverse interests: academics may want open access, publishers may not. Google’s monopoly over orphan works also problematic. Reader privacy was uncertain under the proposed arrangement. The settlement’s consistency with international law a concern.
- Chin’s guidance to go forward was minimal: suggested a change from opt-out to opt-in for all services except scan and snippet display.
Image from LSE Library.
- Several options for resolution from here…parties come to an agreement, settlement rejection gets appealed, more litigation and new settlement, Google abandons project (unlikely), plaintiffs throw in the towel and allow scan and snippet display without more pushback (unlikely.)
- Meanwhile, the Hathi Trust has its own set of books digitized by Google and is offering different display services–they will presumably do whatever copyright allows. (This will be up for debate between Hathi and rights holders.)
- We still have the protection of fair use, while litigation resumes.
- Open access is a way forward, which will prevent us from having these same problems in the future. People will keep writing books and sharing them in new and innovative ways. Presumably these copyright issues will not apply in the same way to future works, because of changes in publishing technology and licensing.
Image from New York Public Library.
Question & Answer
Q: Why did libraries ask for so little from the Google Books deal? Why not ask for some ongoing financial support from Google as well?
A: Not sure…at the time, libraries were excited about the project and didn’t have their own rapid digitization plans in place. Subsequently it may have seemed not such a good deal, not very cost-effective.
Q: What might a new settlement look like?
A: From the beginning Google has had an opt-in feature allowing more display access to publishers’ works. So the question is, in part, why do we need the settlement? (This is one of the proposed terms of the revised settlement.) Scan and snippet display seems like the only item still at issue. Possible that some rights holders want some more compensation for the use.
Q: How does print-on-demand affect “in/out of copyright”?
A: Settlement has cutoff date: only books published before Jan 5, 2009. But we’re starting to assume that books in the future will always be in print, because of POD. So these issues may not apply; someone will actively manage the copyright for those items.
Q: What’s a likely subscription cost for academic libraries to access the Google works database (assuming an institutional subscription is an option in the final settlement.)
A: Numbers are being floated…Google may be doing some test-marketing to see what the market will bear. But question may be moot: seems unlikely that there will be a settlement that will have an institutional subscription feature attached to it.
Q: Will this go to the Supreme Court?
A: Only if they go back to the fair use issue.
Q: Will some of this be solved by litigation, other aspects by legislation?
A: Scan & snippet display settlement, opt-in for more robust displays, and some kind of orphan works legislation to deal with those who don’t opt in. But also possible that legislation will be too hard to enact. Legislation solution could come from EU model, or around 10 years from now.
Q: Could Hathi Trust offer limited access to works by library patrons, no matter what happens with Google?
A: Hathi Trust + fair use will be a major aspect of this going forward; institutions may decide individually what access is allowable. Likely: full-text access within the Hathi Trust institution, more limited access to the public. If a rights holder steps forward with objections, Hathi Trust may have to negotiate to avoid litigation.