Open Access News

News from the open access movement

Tuesday, October 28, 2008

Google and publishers settle

Google and the book publishers who sued to stop the Google library project have reached a settlement.  See the AAP's settlement page and press release, as well as Google's settlement page, press release, and blog post.  The two press releases use the same text.

From the common press release  (October 28, 2008):

The Authors Guild, the Association of American Publishers (AAP), and Google today announced a groundbreaking settlement agreement on behalf of a broad class of authors and publishers worldwide that would expand online access to millions of in-copyright books and other written materials in the U.S. from the collections of a number of major U.S. libraries participating in Google Book Search.  The agreement, reached after two years of negotiations, would resolve a class-action lawsuit brought by book authors and the Authors Guild, as well as a separate lawsuit filed by five large publishers as representatives of the AAP’s membership.  The class action is subject to approval by the U.S. District Court for the Southern District of New York....

The agreement acknowledges the rights and interests of copyright owners, provides an efficient means for them to control how their intellectual property is accessed online and enables them to receive compensation for online access to their works.

If approved by the court, the agreement would provide:

  • More Access to Out-of-Print Books -- Generating greater exposure for millions of in-copyright works, including hard-to-find out-of-print books, by enabling readers in the U.S. to search these works and preview them online;
  • Additional Ways to Purchase Copyrighted Books -- Building off publishers’ and authors’ current efforts and further expanding the electronic market for copyrighted books in the U.S., by offering users the ability to purchase online access to many in-copyright books;
  • Institutional Subscriptions to Millions of Books Online -- Offering a means for U.S. colleges, universities and other organizations to obtain subscriptions for online access to collections from some of the world’s most renowned libraries;
  • Free Access From U.S. Libraries -- Providing free, full-text, online viewing of millions of out-of-print books at designated computers in U.S. public and university libraries; and
  • Compensation to Authors and Publishers and Control Over Access to Their Works -- Distributing payments earned from online access provided by Google and, prospectively, from similar programs that may be established by other providers, through a newly created independent, not-for-profit Book Rights Registry that will also locate rightsholders, collect and maintain accurate rightsholder information, and provide a way for rightsholders to request inclusion in or exclusion from the project.

Under the agreement, Google will make payments totaling $125 million. The money will be used to establish the Book Rights Registry, to resolve existing claims by authors and publishers and to cover legal fees....

Holders worldwide of U.S. copyrights can register their works with the Book Rights Registry and receive compensation from institutional subscriptions, book sales, ad revenues and other possible revenue models, as well as a cash payment if their works have already been digitized.

Libraries at the Universities of California, Michigan, Wisconsin, and Stanford have provided input into the settlement and expect to participate in the project, including by making their collections available....

It is expected that additional libraries in the U.S. will participate in this project in the future....

From the parties' joint FAQ:

1. Why did the Class Plaintiffs, the Authors Guild, Association of American Publishers (AAP), and Google come to an agreement?

This agreement will enable us to do more together than copyright owners and Google could have done alone or through a court ruling. Our agreement promises to benefit readers and researchers, and to enhance the ability of authors and publishers to distribute their content in digital form, by significantly expanding online access to works through Google Book Search. It also acknowledges the rights and interests of copyright owners, provides an efficient means for them to control how their intellectual property is accessed online and enables them to receive compensation for online access to their works. The agreement opens new opportunities for everyone - authors, publishers, libraries, Google, and readers....

12. How much will it cost to get full access to a book?

The price of purchasing online access to a book will be set in one of two ways, at the rightsholder’s option.  Google will automatically set and adjust prices through an algorithm designed to maximize revenues for the book. This algorithm will be based on multiple factors; it is not a subjective evaluation of each individual book....For the Institutional Subscription, Google will work with the Book Rights Registry to set the price based on the type of institution and the expected number of users at an institution....

13. Will advertising be shown with the books included in this project?

As with advertising currently offered through Google’s Partner Program, advertising may be displayed on webpages.  Advertising will not be overlaid on pages from a book.  Rightsholders will receive the majority of the revenue from the advertising on web pages for specific books....   

From Google's blog post on the settlement:

...[The] Book Rights Registry...will help address the "orphan" works problem for books in the U.S., making it easier for people who want to use older books. Since the Book Rights Registry will also be responsible for distributing the money Google collects to authors and publishers, there will be a strong incentive for rightsholders to come forward and claim their works....

The agreement gives public and university libraries across the U.S. free, full-text viewing of books at a designated computer in each of their facilities. That means local libraries across the U.S. will be able to offer their patrons access to the incredible collections of our library partners -- a huge benefit to the public....

It is important to note that the agreement does not affect users outside the U.S., but it will affect copyright holders worldwide because they can register their works and receive compensation for them. While this agreement only concerns books scanned in the U.S., Google is committed to working with rightsholders, governments, and relevant institutions to bring the same opportunities to users, authors, and publishers in other countries....

Comments.  I'm still digesting this.  But here are some first  impressions.

  • What looks good here? Google will continue to scan copyrighted, OP books (as well as public domain books) and make them full-text searchable.  Those searches will continue to be free of charge and may now display much more than short snippets (20% of the text by default, less if publishers individually object).  Publishers are dropping their objection to future scans, which will encourage more libraries to participate in the program and enlarge Google's book index.  Publishers of non-OA books have found a way to enter the 21st century without shunning the internet or losing money.
  • What looks bad here?  Other book scanners may have to pay to play as well, even if Google's original fair-use claim was valid.  The settlement may reduce scanning of copyrighted books by everyone except Google.
  • Some of Google's $125 million will set up the Book Rights Registry and some will be "compensation" to publishers whose books have already been scanned.  Google will also share revenues with publishers going forward.  I can't tell whether Google will "compensate" publishers for future scans or merely share revenue with them.  That may look like a fine point.  But if Google will compensate publishers for future scans, then it has relinquished its fair-use claim:  that the scanning was lawful without permission or payment provided the company displayed only short snippets.  But if Google is merely sharing revenue, then it hasn't necessarily relinquished that claim.  Giving up a valid fair-use claim would be a serious loss and could tie the hands of search engines forever.  Moreover, the claim seemed valid to a gaggle of copyright specialists including Jack Balkin, Susan Crawford, William Fisher, Lawrence Lessig, Jessica Litman, Fred von Lohmann, and William Patry (now also Google's chief copyright counsel and persumably one who signed off on the settlement).
  • See our many past posts on this lawsuit and my article from October 2005, Does Google Library violate copyright?  In that article I called the publisher lawsuit a shakedown, and so far I see no reason to change my mind.

Update. Read the full-length settlement document or Google's three page summary.

Update (10/31/08).  I just heard from Derek Slater, a policy analyst at Google.  (Thanks, Derek.)

You wondered, "I can't tell whether Google will 'compensate' publishers for future scans or merely share revenue with them." As you know, under the settlement we will be compensating rightsholders for past scans with a fixed payment of at least $60 per book (and at least $45 million total). For future scans, we will *not* be paying any such compensation, though we will have a revenue share for all the new access models (Preview, Purchase, Institutional Subscription).  Preview is free to the user, and the revenue share involves advertising on Preview pages.

Update (11/6/08). I add some second thoughts to my first impressions in a new post.