Open Access News

Andrea Foster, Google Settlement to Pay Lawyers Up Front, Authors Eventually:  Opinions on Settlement Differ, But Negotiations Cloaked in Secrecy by Non-Disclosure Agreements, Doing the Write Thing, undated but apparently December 15, 2008.  A detailed account.  Excerpt:

...Publishers, scholars, and authors, along with Google, have hailed the agreement as a boon to book lovers and an ingenious solution to the thorny issue of how to fairly compensate authors and publishers in the digital age. Books and periodicals are quickly moving online, and the public, it seems, expects to read it all for free.

But critics say the settlement is flawed. Some are troubled that those privy to the settlement negotiations are barred from disclosing any details. Many scholars are disappointed that Google failed to defend what they see as the legality of digitizing copyrighted books. Others worry that the agreement gives Google too much power. They fear that the company will monopolize commerce around digital books, or will hide certain books from its database if it fears their distribution would threaten the company's bottom line....

Boni, the Author's Guild lawyer, said the group made the right decision to settle the case rather than argue before a judge that Google was infringing on authors' copyrights. "We have a groundbreaking book-publishing deal the likes of which the world has never seen," he said. "We could never have gotten that had we brought this case to trial."

The Association of American Publishers, which filed a separate suit against Google for scanning copyrighted works, also applauded the settlement. Jeffrey P. Cunard, the lead lawyer for the publishing group, said that if his clients brought the case to trial it might have taken many years and many appeals before the suit would have been resolved. And it was never clear whether the publishers would have prevailed, he added....

Although Google, publishers, librarians, and authors pride themselves on supporting information sharing and free expression, the public will likely never know how the agreement was reached or what the litigants learned during the negotiations. That's because anyone who offered their advice and expertise to lawyers involved in settling the suit had to sign a sign a statement saying they would keep mum about the discussions, which lasted for at least two years....

Ultimately, the librarians viewed the non-disclosure agreement as the bitter pill they had to swallow in order to achieve an outcome that would give academic institutions, public libraries, and computer users access to a vast array of out-of-print, in copyright books....

"We now have a structure which is going to allow everything that's ever been published to be available on market terms, online for individuals and educational institutions," said [Paul N. Courant, university librarian at the University of Michigan]. "This was unimaginable five years ago. It's astonishing." ...

Ideally, though, Courant and many other scholars would have preferred to see Google defend and win its controversial claim that scanning and digitizing copyrighted works and displaying snippets of the text online is allowable under copyright law's fair use exemption. Such a decision would have set a legal precedent that would have given other organizations the green light to digitize copyrighted works without fear of liability....

The settlement is non-exclusive, which means that Microsoft, Amazon, Yahoo, or any other technology company can digitize and sell in copyright, out-of-print books. But it's unlikely they will since Google will have a jump start in forging relationships with a lot of authors and publishers via the book registry, because of the millions of dollars involved in digitizing books, because of Google's access to stores of these books at university libraries, and because of the company's dominance in book digitization.

Microsoft got out of digitizing books in May of this year, cementing Google's role as the leading commercial enterprise digitizing books.  "This settlement ensures for the foreseeable future that Google will be the sole major outlet for digital access to out-of-print books," Vaidhyanthan, of the University of Virginia, said.

And remarkably, he added, it is being accomplished with the assent of librarians. "Google is going to open little bookstores in libraries all across America. It's a stunning and radical change for libraries in this country, and it's entirely dictated by Google's market power." ...

James Grimmelman, an associate professor at New York Law School, favors the settlement, but he has a number of concerns that he describes on his blog, The Laboratorium, and that he says a judge should address. For example, he says the agreement gives Google special treatment, or "most-favored nations" status since within 10 years after its approval no other group could receive more favorable economic treatment with publishers and authors than Google....

Grimmelman finds other flaws, too. He says Google could exclude a book from its database for purely editorial reasons and not inform the registry or the public. He says Google could collect private information about users and their reading habits....

Brewster Kahle, an entrepreneur and librarian who helped create the [Open Content Alliance], is disturbed by what he's heard and read about the agreement. He would have preferred to see Google offer payment to rights holders whose works the company already digitized without permission, and leave it at that.

The settlement, he says, creates "a system going forward that reinvents a new copyright office, new copyright laws, a new payment system and all revolving around a single monopoly for access to the collective books of humankind."

Assuming the settlement is adopted as is, Kahle imagines it would be relatively easy for a dictator, a politically-connected organization, or a financial powerhouse, to call up Google and have it remove a controversial book from its database or give it a low profile, effectively censoring what people read online....

Robert C. Darnton, Harvard University's library director, told his library staff members in an October letter that Harvard will allow Google to continue scanning out-of-copyright books but not in-copyright works.

"The concerns that kept us from participating in the settlement to date relate to provisions about how the public access and subscription services would work and what they would cost, what material would be included, and whether the ways in which digitized volumes are captured and shared would reduce their utility for research and education," the letter read. Darnton, through a spokesman, declined to elaborate on the letter.