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Thursday, October 30, 2008

Harvard doesn't like the Google settlement

Laura G. Mirviss, Harvard-Google Online Book Deal at Risk, Harvard Crimson, October 30, 2008.  Excerpt:

Harvard University Library will not take part in Google’s book scanning project for in-copyright works after finding the terms of its landmark $125 million settlement regarding copyrighted materials unsatisfactory, University officials said yesterday.

Harvard had been one of five academic libraries—along with Stanford, Oxford, Michigan, and the New York Public Library—to partner with Google when the book scanning initiative was announced in October 2004. University officials said that Harvard would continue its policy of only allowing Google to scan books whose copyrights have expired....

University spokesman John D. Longbrake said that HUL’s participation in the scanning of copyright materials was contingent on the outcome of the settlement between Google and the publishers.

Harvard might still take part in the project, Longbrake said, if the settlement between Google and publishers contains more “reasonable terms” for the University.

In a letter released to library staff, University Library Director Robert C. Darnton ’60 said that uncertainties in the settlement made it impossible for HUL to participate.

“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,” Darnton wrote.

“The settlement provides no assurance that the prices charged for access will be reasonable,” Darnton added, “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.”

He also said that the quality of the books may be a cause for concern, as “in many cases will be missing photographs, illustrations and other pictorial works, which will reduce their utility for research and education.” ...

“We have said that we believe that Google’s treatment of in-copyright works is consistent with copyright law,” Longbrake said in 2005 after the lawsuit against Google was filed.

Comment.  This is not a comment so much as a careful paraphrase, if only for myself, to get clear on what happened.  Harvard is not refusing to take part in the settlement.  It's not a party to the lawsuit and couldn't be a party to the settlement.  Nor is it terminating its agreement to let Google scan books from the Harvard library.  Harvard never allowed Google to scan copyrighted books from its library, as (say) Michigan did.  Instead it limited Google-scanning to public-domain books.  Today it announces that it will continue to limit Google to public-domain books.  Google just arranged for publishers to drop their objections to the scanning of copyrighted books, provided the scans meet certain terms, and expected that libraries would leap to participate.  But Harvard doesn't like the terms, either for unpaid access and use or for paid access.  Apparently Harvard is also saying, like many others, that Google could have prevailed on its original fair-use claim and should have litigated it to the end.