Open Access News

News from the open access movement


Monday, November 03, 2008

Comments on the Google-Publisher settlement #3

Here are some more comments from the press and blogosphere.  (This is my third collection; also see the first and second.)

From John Blossom at ContentBlogger:

Well, of course it took a long time, but at the end of the day most of the several years [it has taken to reach this settlement]...has been a matter of the book publishing industry deciding to name a reasonable price....Since the book industry was barely interested in e-books and print-on-demand a few years ago, it's understandable that the magic number was not readily at hand back then....

In many ways this enables the book industry to monetize fringe content far more effectively via Google partners such as Amazon, in essence validating the value of Chris Anderson's "long tail" theory for content that was sometimes discounted by book industry executives resistant to Google's scanning efforts. The settlement is really just a bulk licensing fee to make it easier to administer long-tail revenues....

Enter Google's new Android operating system, which will be able to power any number of mobile and handheld devices - including perhaps, Kindles [to support the newly digitized ebooks]....

So all in all this deal is likely to turn into a content industry love-fest over the next few years, a peace treaty that finally enables book publishers to leverage the vast power of Google's book scanning initiative, thus avoiding expensive or less powerful alternatives and enabling book marketers to accelerate their increasingly aggressive exploitation of online channels for their marketing efforts....

From Kenneth Corbin at InternetNews.com:

...While they praised the settlement, the university libraries noted that they each had independent cooperative agreements with Google, and that those would now have to be renegotiated.

"Any final decision to continue contributing to Google Book Search will be made after negotiation and finalization of such an amended agreement," the libraries said, adding that they expected to reach acceptable terms and continue participating in the project....

The ALA [said it] will not have an opinion on the matter until it becomes clear which libraries would be required to pay for the service, and how much it would cost....

From Deutsche Welle:

German book publishers denounced a historic accord between Google and US authors, dubbing it trick that would make the US company the master of the world's knowledge.

The Boersenverein, the German booksellers and publishers association which has bitterly opposed Google for years, rejected the accord as a "creeping takeover."

"This accord is like a Trojan Horse," Alexander Skipis, chief executive of the Boersenverein, said in a statement on Thursday, Oct. 30. "Google aims to achieve worldwide control of knowledge and culture.

"In the name of cultural diversity, this American model is out of the question for Europe," he said, adding that it contradicted "the European ideal of diversity through competition."

The Boersenverein has funded a pay-for-use book-scanning service for German-language books, Libreka....

From Georgia Harper at Collectanea:

...Google, by a landslide....

[M]y own thoughts on and feelings about the deal are a combination of heartbreak, exhilaration, relief, pride, thankfulness, and gratitude to the libraries who worked so hard to make the deal a better one for the public interest....

Heartbreak: It hit me really, really hard to realize that Google utilized fair use strategically to bring the publishers and authors to a deal. My heart was in strengthening fair use. It has been for a long, long time. I felt betrayed, really hurt. But damn it, Google was right. It is right. This deal is way better for everyone, more value, more possibility, more of everything. For fair use to cover digitizing for indexing would have been nice, but it would not have given us this (and there was the chance Google could have lost, though I firmly believed Google would have won). Maybe we could have had both....

I do hope that those who may be unhappy about the shape of the deal for the public (outside the obvious benefit to the public of discoverability, readability and the ability to buy "lost" books) won't be too quick to assume that any library could have done better. If the criticism is that none of us should have been involved at all, well, that's simply a non-starter. Libraries are not sitting the revolution out or trying to go it alone. Partnering is simply a fact of our lives....

I hope the deal gets approved and moves on to implementation....

From Fred von Lohmann at the EFF:

...First, this agreement is likely to change forever the way that we find and browse for books, particularly out-of-print books....[T]he agreement goes beyond Google's Book Search by permitting access, as well. Unless authors specifically opt out, books that are out-of-print but still copyrighted will be available for "preview" (a few pages) for free, and for full access for a fee. In-print books will be available for access only if rightsholders affirmatively opt in. The upshot: Google users will have an unprecedented ability to search (for free) and access (for a fee) books that formerly lived only in university libraries.

Second, this outcome is plainly second-best from the point of view of those who believe Google would have won the fair use question at the heart of the case. A legal ruling that scanning books to provide indexing and search is a fair use would have benefited the public by setting a precedent on which everyone could rely, thus limiting publishers' control over the activities of future book scanners. In contrast, only Google gets to rely on this settlement agreement, and the agreement embodies many concessions that a fair user shouldn't have to make.

But the settlement has one distinct advantage over a litigation victory: it's much, much faster. A complete victory for Google in this case was probably years away....

Under the agreement, Google has unrestricted, royalty-free access to this corpus. The agreement gives libraries their own copy of the corpus, and allows them to make it available to "certified" researchers for "nonconsumptive" research, but will that be enough? ...

This agreement promises unprecedented access to copyrighted books. But by settling for this amount of access, has Google made it effectively impossible to get more and better access? ...

The agreement apparently envisions a world where Google keeps all of the electronic books that you "purchase" on an "electronic shelf" for you....Google is also likely to keep track of which books you browse (at least if you're logged in). This is a huge change in the privacy we traditionally enjoy in libraries and bookstores....Does the agreement contain ironclad protections for user privacy?

From Jef Pearlman at Public Knowledge:

...The settlement would do two main things, one for the availability of orphan works and one for the rights holders and those who want to license the works they control. First, it would give Google the ability to safely offer these works to the public, both in searchable form and as full, purchasable copies. This is a clear win for the public, who can not only find works that they didn’t know existed, but learn what libraries the works can be found in or even read them in their entireties without leaving their living rooms. It’s also a win for Google, who was already doing a lot of this, but facing potential copyright liability.

Second, it creates the books right registry, or BRR (please hold the chilling-effects puns), which gives authors a place to go to identify themselves and receive compensation for Google’s use of their books, including a portion of purchase and ad revenues. The creation of a BRR does good both for the authors of currently-orphaned works and for those who want to use them: It provides a way for authors to effectively un-orphan their books and receive compensation, and it provides a way for users to locate previously-unknown rights holders and obtain the rights to use those works. It also provides a financial incentive for those authors to come forward, as they will receive the compensation that the BRR has collected on their behalf....

The First-Sued Advantage ...[T]his settlement only applies to Google. Even in the ideal case where the BRR offers similar rights to non-Google organizations on nondiscriminatory terms – a situation which I sincerely hope will come to pass – the BRR can only offer third parties licenses for those authors in the registry. It is only the opt-out nature of a class action law suit that allows the AAP and Authors Guild to license the rights of millions of rights holders who are not actively involved in the case and often don’t even know they have rights to defend. Short of getting sued and settling (in a non-collusive fashion), no one else can pull this off. And since the case didn’t go to judgment, anyone else who wants to make fair use of these works will face uncertain legal ground and the possibility of a massive copyright suit....

This structure effectively limits the BRR to authors represented by the AAP or the Authors Guild or those who individually register themselves. If I want to use an orphaned book, and the rights holder does not identify himself or herself in the BRR, then I’ll be no better position after the settlement than I am right now. I still will run the risk of an expensive lawsuit if the rights holder shows up, and will have no way to mitigate that risk.

The Authors Guild represents more than 8,000 authors, and the AAP has over 300 member organizations covering an unknown number of authors. On the other hand, according to Brewster Kahle, founder of the Open Library (and member of our board), the over 20 million books listed on Open Library were written by over 5 million authors. Some of these, of course, wrote works that are now in the public domain, and others are represented by the BRR.

But how many of those 5 million authors of in-copyright books are unknown to Open Library, unreachable, and unrepresented? ...

From Kevin Smith at Scholarly Communications @ Duke:

...[T]his settlement would not resolve the fair use argument that is at the heart of the lawsuit; the parties have been very clear that they still have a significant disagreement over whether Google’s activities to date infringe copyright or are authorized as fair use. A decision on that issue would have provided libraries with more guidance as we proceed (or not!) with digitization projects, but both sides in the case, I suspect, wanted to avoid getting to that point. The likely result, unfortunately, is that the next time someone considers pushing the envelope on fair use, there will be even more pressure to just pay the costs of licensing up front and not go down the fair use path at all....

For out-of-print works this [20%] would be the default availability, with the rightsholders able to opt out. For in-print books, the rightsholders would have to opt-in. So while it seems likely that, overall, there will be increased access in the Google Book Search product, some in-print works will also likely disappear, even from the snippet view, as rightsholders elect not to opt in.

The participating libraries are in an interesting “in-between” position here.They have no voice in the settlement agreement, and it appears that, for some of them, the options for using the digital scans of books that they receive from Google will be reduced....[T]here are strict limits on how those files can be used. They cannot be made available for reading even on campus, much less linked into a catalog. They cannot be used for interlibrary loan, e-reserves or in a course management system. They are essentially preservation copies, although there is a provision to allow research based on “text-mining.” ...

It will be especially interesting to see if some of the partner libraries choose to subscribe to [the] more robust version of the database to get the level of access that is denied to them with the scanned files of their own works....

Finally, there are provisions for free access to this “fuller-text” version of the Google product, via dedicated terminals. One such terminal would be offered to every public library, although it is not clear if public libraries that still lack broadband access would benefit much from this offer. A free terminal would also be available to “colleges and universities,” with one such terminal for each 10,000 FTE (one per 4,000 for community colleges)....[N]o allowance is made for free access at the K-12 level.

For all three of these approaches to “access uses,” there are pretty strict limits imposed on cutting and pasting, and on printing....

Most troubling to me, however, is that this agreement would seem to move us one more big step in the direction of per-pay-use, where every library resource would be licensed and metered.