...[T]he very concept [of what Google had been doing in its Library Project] has created a copyright law conundrum.
From one perspective, Google is making "fair use" - the use of short extracts, allowed under copyright law - of the books. Possibly a small snippet may be shown, while the searching ability is a valuable "transformative" application. But from a competing perspective, Google is making commercial use of the entire book itself overall. Doing it in little pieces per transaction might then be akin to the "salami slicing" computer crime technique of stealing extremely small amounts from a large number of items.
There's no obvious answer as to which view is legally correct....
Perhaps the most important aspect [of the proposed settlement] is the creation of a Book Rights Registry, which will manage recordkeeping and revenue disbursement. In heaven, this will be a model of cutting the Gordian Knot, which keeps material tied down and away from view because of the desire to compensate writers. In hell, it'll just be a deal that shuffles almost all the money among large corporations, while actual authors receive a pittance that's used to justify the system.
Parallels have been drawn with the collective licensing of music, in the hopes of having a similar collective licensing of books. But if the end result also imports the creative accounting of the music business, artists will not see much benefit....
Librarians and open access advocates have not all been enthusiastic. The director of Harvard University Library has stated that "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". Brewster Kahle, who founded the Internet Archive and heads the Open Content Alliance, earlier warned of "the consequences of the consolidation of information into the hands of a few private organizations". Professor Siva Vaidhyanathan is also cautions against "corporate welfare" and of libraries "giving away access to one company that is cornering the market on online access"....
There's some value in enemy-of-my-enemy opposition, where the interests of an advertising near-monopoly are a counterweight to a content cartel. But battles between behemoth businesses should not be mistaken for friendship to libraries, authors or public interest.
OK, I'm an OA advocate, and this may be a good time to add some second thoughts to my first impressions of the settlement. Am I up in arms?
I'm deeply disappointed that Google didn't litigate the fair-use claim to the end. I have four reasons: (1) Google had a strong case, (2) almost nobody else could bear the enormous legal costs of fighting the AAP and AG, (3) the proposed settlement weakens the claim for any future litigant, if only by creating a new commercial opportunity for publishers to balance against fair use, and (4) leaving the fair-use claim unresolved is harmful to digitization projects and search engines. So yes, I'm up in arms about that aspect of it.
On the other hand, I'm not at all sure that litigating the claim to the end would have been a victory for Google and fair use. As I wrote in a 2005 article, "On the merits, it's an important question to [resolve]. But I admit that I'm not very comfortable having any important copyright question [resolved] in today's legal climate of piracy hysteria and maximalist protection...."
Google and the publishers disagreed passionately about the fair use claim, each side thought it was right on the merits, and each wanted to see the question resolved in its favor. The settlement must have been delayed by the fact that neither side could readily give up the legal claim it thought was so essential to its business. But both sides understood that fair use is vague and contestable, and neither wanted to take the risk of seeing the claim resolved the other way. Choosing to settle instead is a hard judgment but, in the end, I'm not sure it was wrong. The settlement will harm fair use, but refusing to settle might have been more harmful. This consideration vents much, but not all, of my steam.
Harvard is right that the settlement puts needless restrictions on the digitized editions of the copyrighted, OP books at the heart of the case. But we have to remember that we wouldn't have OA to these texts even if Google had not settled and had prevailed in court on every point. In that sense, the major issue isn't OA at all, but what sort of restricted access different kinds of users would have to books which are under copyright but out of print. That's an important question, for research and commerce, but it doesn't implicate OA. You might wish that OA had been an option, but the OA movement deliberately focuses on works which pay no royalties, like journal articles and public-domain books, or works with consenting rights holders. From this point of view, OA itself was not at stake in the lawsuit or the settlement.
By contrast, OA really is at stake for Google's digitization of public-domain books. But neither the lawsuit nor the settlement affects that part of Google's project, and Google plans no changes to it. On that front, btw, I've always argued that Google's form of access is a step forward which stops short of OA, and that the OCA model is superior precisely because it is OA.
I do hope that Harvard can persuade the parties or a court to tweak the restrictions on the copyrighted books at the heart of the case. But the fact that the settlement itself could be improved doesn't change the fact that, even unmodified, it would be an improvement over the kinds of access we have to copyrighted books today: 20% previews rather than short snippets, free full-text access from selected terminals in libraries, free text-mining of full-texts for some institutional users, free full-text searching of a larger rather than smaller number of books, and even the availability of priced access to full-text digital editions. If OA were an option, I wouldn't be nearly as happy with these half measures. But for these copyrighted books, it was never an option.
Peter Suber at 11/06/2008 12:38:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.