Open Access News

Barbara Quint, The Google Book Search Settlement: ‘The Devil’s in the Details’, Information Today NewsBreaks, November 3, 2008.  Excerpt:

...If the settlement agreement goes through as planned, the public domain content would continue to be treated as it is today....Preview views, similar to the blocks of contextual displays offered for much of the publisher partner content and encompassing as much as 10%–20% of content or 4–5 page displays, would become the default display for books in-copyright but out-of-print....Publisher or author rightsholders would have the option to withdraw books from preview mode. Books that were in-copyright but in-print could receive the same preview treatment, but only if the publisher or author rightsholder approved. In other words, choosing to opt-out can stop an orphan’s chance to shine, but choosing to opt-in can get in-print items on stage.

But here’s the pot of the gold at the end of the rainbow: Online access to the full text of the in-copyright, out-of print books will become available under institutional subscriptions....There are exceptions to coverage specified in the settlement agreement, e.g., periodicals, and rightsholders can remove items if they choose. But this settlement would open up an epic quantity of curated book content, i.e., items selected by knowledgeable research librarians who are building world-class research collections. Institutional subscriptions would operate in "pricing bands" based on issues such as the size of the user group. According to Clancy, "The amount an institution pays per student, for example, would vary depending on the type of institution. For example, Stanford would pay more than Foothill Community College, but it would be open to public libraries, corporations, K–12, etc." ...Google has retained the right to create other subsets of the file, e.g., discipline-defined sets, which may involve different institutional subscription fees.

But that’s not all. Under the agreement, public libraries would receive limited access to the full text of in-copyright, out-of-print books (plus public domain, of course) for free. The public library would have to dedicate a computer to the Google Book Search content. Google would then supply the software to reach and navigate the collection at no charge. According to Adam M. Smith, director of product management for Google Book Search, the agreement specifies that the offer extends to each library building; branches could have their own dedicated computers....

The agreement describes a number of revenue models by which rightsholders would receive as much as 100% to as little as 35% of monies collected by Google, from institutional subscriptions, advertising, book sales, etc....

[The] new Book Rights Registry...should start operation in January 2009, even before the court has approved the settlement agreement, according to Clancy....

Four [Google Library project] partners —the University of Michigan, the University of California, Stanford, and the University of Wisconsin–Madison— issued a press release praising the settlement—but somewhat cautiously. In conversations, both Daniel Greenstein, vice provost of the University of California, and John P. Wilkin, associate university librarian for Library Information Technology and Technical and Access Services at the University of Michigan, indicated that they would have liked it if Google could have pursued its "fair use" argument to a case law conclusion. Both Greenstein and Wilkin understood why Google and its opponents had decided to settle however, and they looked forward to the ensuing benefits, particularly as decisions unfavorable to Google could have put the library partners in legal danger too, even allowing for the indemnification clauses that Google wrote into its contracts. As Wilkin put it, "There are things we got and things we gave in this process, but hissy fits wouldn’t have helped. We could have stood on a matter of principle and said we would not sign this atrocity, but then we’d have the old agreement. Google could stop giving us the in-copyright stuff. We wouldn’t be allowed to use it. Instead, we’ve done all the work of nailing down the amendments." Both Wilkin and Greenstein expected that addenda would be added to the library partner agreements once a judge signs off on the basic settlement agreement.

However, not everyone proved as sanguine. On Halloween, 4 days after the Google Book Search settlement was announced, Harvard University, one of the earliest Google Book Search Library Partners, said it would not participate in scanning copyright materials, something it had apparently planned to do once the outcome of the lawsuits clarified the issue....Despite these concerns, a Harvard spokesman left the door open to further negotiations with Google and rightsholders....

The AAP’s Adler explained, "...Some people feel Google betrayed them by not continuing to fight for fair use. Who knows what would have been the outcome of litigation? If we won or if they won, it would go to the Supreme Court. If it got a Supreme Court ruling, the likelihood is that it would have been a split ruling and a narrow ruling applicable only to the facts before it. So then both sides try to spin the ruling to their advantage and finally—more litigation. This settlement provides more benefits to the stakeholders than would have resulted from litigation." ...