Open Access News

Here are some more comments from the press and blogosphere on the Google-Publisher settlement.  (This is my fourth collection; also see 1, 2, and 3.)

From AuthorLink:

...The good news [for authors] is this: authors and publishers will at last receive a small share of net online sales of their digitized work. They will also receive a share of the advertising revenues generated from the book search pages, in an amount yet determined by Google. Google will provide links to online stores such as Amazon.com where consumer can purchase hard copies of books.

The announced publisher or author share of consumer sales is 63%, while Google retains 37%. Sounds good. But there’s some fine print in the massive legal document that everyone in the industry should study....

The 63%, however is not what the author or publisher will actually take home. First, the rightsholder must pay the Book Registry a $200 “inclusion” fee for the privilege of being listed (or not listed) in the database Google uses for its searches and price setting....In addition, the Book Registry plans to take another 10-20% of the 63% to cover its “administrative costs, which whittles the publisher/author’s income down to 43%, less the inclusion fee.

The search giant also gets to charge 10% in operating costs off the top of the selling price before “net purchase revenues” are calculated....Google gets to set discounts for advertisers, which in turn affects author compensation.

So, does anyone out there know the actual cost to the author of having two “middle men” (Google and the Book Registry), each taking cuts of revenue?

Google can with the sanction of the Book Registry set discounts deeper than the author may intend. For example, a $7.99 book may not net the 63% sum of $5.03 at all (especially after all fees are deducted). If Google decides to deep discount the book, to, say $1.99 that 63% share is whittled down to $1.25. We have seen this sort of deep discounting before--on Amazon.

The point is this: We [authors] need to thoroughly understand what the publishing industry is signing authors up for as good as it may sound....

From Karen Coyle at Coyle's InFormation:

This Google/AAP settlement has hit my brain like a steel ball in a pinball machine, careening around and setting off bells and lights in all directions....Reading the FAQ (not the full 140+ page document), it seems to go like this:

Google makes a copy of a book.
Google lets people search on words in the book.
Google lets people pay to see the book, perhaps buy the book, with some money going to the rights holder.
Google manages all of this with a registry of rights.

Now, replace the word "Google" above with "Kinko's."
Next, replace the word "Google" above with "A library."

TILT! If Google is allowed to do this, shouldn't anyone be allowed to do it? Is Jeff Bezos kicking himself right now for playing by the rules? ...

Ping! Next thought: we already have vendors of e-books who provide this service for libraries. They serve up digital, encoded versions of the books, not scans of pages. These digital books often have some very useful features, such as allowing the user to make notes, copy quotes of a certain length, create bookmarks, etc. The current Google Books offering is very feature poor. Also, because it is based on scans, there is no flowing of pages to fit the screen. The OCR is too poor to be useful to the sight-impaired. And if they sell books, what will the format be?

TILT! Will it even be legal for a publicly-funded library to provide Google books if they aren't ADA compliant? ...

Ping! It looks like Google will collect fees on all books that are not in the public domain. This means that users will pay to view orphan works, even though a vast number of them are actually in the public domain. Unclaimed fees will go to pay for the licensing service. Thus, users will be paying for the service itself, and will be paying to view books they should be able to access freely and for free.

Ping! We have a copyright office run by the US government. I'm beginning to wonder what that Copyright Office does, however, since we now have two non-profit organizations in the business of managing rights, plus others getting into the game....

TILT! Rights holders can opt-out of the Google Books database. If (when) Google has the monopoly on books online, opt-out will be a nifty form of censorship. Actually, censorship aimed directly at Google will be a nifty form of censorship.

GAME OVER. All your book belong to us.

From James Gibson in the Washington Post:

...At first glance, it looks like this great champion of the free flow of information has caved to copyright interests. But in fact, Google may be better off with a settlement than an outright win....

Claims of fair use are common in the Internet age, when unauthorized copying of copyrighted materials happens all the time. Not so common are actual court rulings on such claims. Damages in copyright cases can be frighteningly high, and questions of fair use can be terribly indeterminate. This means that few defendants have the guts to see their fair use claims all the way through; once they get a little skin in the game, they frequently adopt an attitude of "license, don't litigate."

But Google seemed like a copyright owner's worst nightmare: a risk-taking iconoclast with deep pockets, unafraid to litigate licensing issues all the way to the Supreme Court. So the copyright industry held its breath as the controversy played out, wondering if it had met its match.

Viewed in this light, the settlement looks like a setback for Google. In the game of brinksmanship, Google blinked -- losing its nerve like so many copyright defendants do. In reality, however, settling probably puts Google in a better position than it would have been if it had won its case in court.

Here's why: Google's concession has made it more difficult for anyone to invoke fair use for book searches. The settlement itself is proof that a company can pay licensing fees and still turn a profit....

By settling the case, Google has made it much more difficult for others to compete with its Book Search service. Of course, Google was already in a dominant position because few companies have the resources to scan all those millions of books. But even fewer have the additional funds needed to pay fees to all those copyright owners. The licenses are essentially a barrier to entry, and it's possible that only Google will be able to surmount that barrier....

From Georgia Harper in Library Journal:

...I frankly don’t think it is possible to fairly critique [libraries’] efforts without knowing what they were up against, how tirelessly they worked, how little the publishers and authors ever appeared to appreciate how critical their collections are to the dollars publishers and authors now expect to make....

[The participating libraries] don’t all have the same deals with Google. We don’t all value equally the things some fought to achieve. Each of us had to decide at the end of the day if it was still worth it to us, given the failure to get things we wanted but couldn’t get....

I’m excited about the potential of the deal to improve public access to orphan works and ultimately generate information about which works are, in fact, orphans. Another exciting aspect of the deal to me is Google’s ability to demonstrate to publishers and authors that more access to digital copies, and lower prices, can produce more revenues for copyright owners. Data is Google’s stock in trade. The data that this undertaking will yield has the potential to help the publishing industry, maybe not too late, find its way in the digital networked environment. The other potential, actually, is the unknown—once these books are widely, and more freely accessible, people will start thinking of neat things to do with them that we can’t even imagine right now—an explosion of business ideas built on a widely available corpus of great literature, freed from the shelves of private or even public, but relatively inaccessible, places....

From the Open Content Alliance:

Rather than accept the Google settlement with publishers and authors as a fait accompli, or as an obligatory blueprint for the future, the appropriate response is to consider its implications for the future and take all steps to build the world we want to live in....[W]e should not assume that Google Book Search is the only way, or even the best way, to organize and make available our cultural heritage.

This post will outline some of the issues.  Next step is to build an appropriate response, to which we welcome input.  Losing access and control of our cultural heritage as part of a digitization wave is not acceptable.

At its heart, the settlement agreement grants Google an effective monopoly on an entirely new commercial model for accessing books. It re-conceives reading as a billable event.  This reading event is therefore controllable and trackable.  It also forces libraries into financing a vending service that requires they perpetually buy back what they have already paid for over many years of careful collection....

Already, a collective critique is emerging....

The issues encompassed by the Google-AAP-Authors Guild Settlement extend beyond the interests of the parties to this one lawsuit. We believe that, as a society, we can do better....

From Siva Vaidhyanathan at The Googlization of Everything (updating his earlier comments with Google's reply):

Last week I asked Google's lawyers the following questions and received the following responses, which I have paraphrased:

• Isn't this a tremendous anti-trust problem? Google has essentially set up a huge compulsory licensing system without the legislation that usually makes such systems work. One of the reasons it took a statutory move to create compulsory licensing for musical compositions was that Congress had to explicitly declare such a consortium and the organizations that run it (ASCAP, BMI) exempt from anti-trust laws....More importantly, this system excludes the other major search engines and the one competitor Google has in the digital book race: the Open Content Alliance. Don't they now have a very strong claim for an anti-trust action?

The Google legal team did not see this agreement as structured in a way to actively exclude competitors from developing a competing service. The agreements with and about publishers, libraries, and the registry were all non-exclusive, as is the habit and tradition of Google’s approach to competition in the Web business. The registry will be started with Google funds, but it will be an independent non-profit that may deal with the Open Content Alliance and other services without restriction from Google.  Generally, Google’s lawyers don’t’ see this service as presenting a “typical anti-trust” problem. There are so many segments to the book market in the world, including real bookstores, online stores such as Amazon.com, and used-book outlets that no one may set prices for books (even out-of-print books) effectively. There is always a competing source – including libraries themselves....