Open Access News

Here are some blog comments on Columbia Law School conference, Google Books Settlement: What Will It Mean for the Long Term? (March 13, 2009). 

From Peter Hirtle, Part 1:

...After an introduction from June Besek of Columbia that briefly summarized the settlement, the meeting kicked off with what was for me the highlight of the day: Mary Beth Peters, the Register of Copyrights, providing her view of the settlement. She started by noting that she had recommended against the Library of Congress participating in Google’s initial Library Partners program because she was not convinced that Google’s indexing of copyrighted books was a fair use. I believe she opened this way in order to establish that a settlement to the case might have been required (if Google's actions were indeed infringing). She is not opposed to the settlement in principle, but she is worried about the scope and the forward impact that the settlement may have. She noted that some critics (including Brewster Kahle and Robert Clarida) have suggested that the settlement may create new rules for the use of copyrighted works, and in effect institute new copyright legislation without having to go through the legislative process that in theory at least is supposed to balance private rewards with the greater public interest. Doing this is really hard – she cited the example of orphan works legislation, which still hasn’t passed. But it does ensure a level of public engagement that is different than in the settlement.

She then posed a discussed a number of issues for which she does not have the answer:

• How does this settlement affect orphan works? Will it make it harder or easier for orphan works legislation to pass?
• The settlement, she suggested, is a compulsory license for the benefit of one company. Could Congress have enacted such a license for everyone?
• Are there treaty obligations that are implicated? Probably yes, if this was legislation – but maybe not if a settlement.
• The Copyright Office sponsored a three-year long study group tasked to examine the exemptions available to libraries, archives, and museums in order to make sure that they are compatible with the digital age. Does the Google settlement obviate its work?
• What about foreign works?
• What about journals? Will journals go to Congress for a legislative solution or will they sue Google, too?
• What about libraries that are not part of the settlement?
• Does the settlement represent the interests of all authors? One would assume that legislation would have  acknowledged and addressed all types of copyright owners, but the parties in the litigation were not so constricted....

The Google settlement may make the careful balances found in copyright law (as well as the public procedures to change it) moot, replacing them with private contractual arrangements instead....

Most disturbing of all was Peters’s admission that not one member of Congress has asked the Copyright Office to comment on the settlement – even though it may fundamentally change how Americans can access and use copyrighted information....

This might be because the enormous sea-change that the Settlement represents has not sunk in with the public. For example, the Copyright Office was worried that there might be a huge rush to register works just prior to the Jan. 2009 deadline in order that they would be eligible to be included in the settlement. Only two publishers, however, sought to register their past publications. (To me, this is also more evidence of how we have to live with copyright rules that were designed to serve and protect a miniscule portion of the country’s creative output, but in the process throttle other types of creativity.) ...

Peters was followed by Randal C. Picker from the University of Chicago Law School who spoke on possible competition and anti-trust issues in the proposed settlement.

He opened with some hypothetical examples of fair and infringing uses, and the moved into what he says are the three key components of the Settlement: the creation of a collection of digital files; the scope of rights included in the license granted to Google through the settlement; and the creation of the Book Rights Registry and its relationship with rightsholders. We could if we wanted address competition in each of these three areas. Picker then looked at each in more detail....

Picker raced over the 3rd key element – the Registry – and postulated that it would be very tough to require a second, competing rightsholder registry....So if there is going to be more competition, it will have to be in the licenses that the rightsholders provide to Google and others. And there are elements in the license terms that work against competition. Foremost among these is the “Most Favored Nations” clause, 3.8(a), which benefits Google only. In the settlement agreement, only Google gets to make use of orphan works....

Picker sees to possible solutions to this antitrust problem. First, he thinks other for-profit firms should be able to use orphan works under the same term as Google (even though the Registry itself does not have the authorization of the rights holders to negotiate on their behalf). Second, he thinks that non-profits should be able to use orphan works without liability until such time as a rights holder steps forward....

And while both Peters and Picker found elements in the settlement that they found troubling, neither suggested that the settlement should not be approved.

From Peter Hirtle, Part 2:

...The fear of what these outsiders (Google and the Registry) will do to traditional practices was echoed in several other presentations.  People just don't know what this will mean for publishers: trade, STM, and academic, or even for reproduction rights organizations.  There will be new relationships between authors and publishers because of the settlement, and the Registry will reign supreme.  There seemed to be a lot of concern from the audience that the Registry has no bylaws, no public means of selecting members, no guaranteed international participants (even though all international authors and publishers are swept into the settlement).  Adler's response: NY State law will govern it and ensure that the public interest is protected.  My analysis: the upcoming wars between authors and publishers are going to be fierce.  I wish I could get into the copyright termination business - with money on the table, there is now a reason for everyone to do it....

One interesting suggestion: that an institutional subscription model for the in-copyright stuff is in the works....At one point during the day, the very interesting observation was made that there was no reason that this needed to be a class action - the aggrieved publishers could have pursued court action on their own and got a settlement.  Others pointed out that class actions are normally used for addressing past injustices - and not establishing a new business model.  Michael Boni, the lead counsel for the Authors Guild, dismissed both of these assertions.  He also maintained that the court had limited authority to alter the terms of the settlement - this is a take-it or leave-it deal....

Orphan works continued to loom as an issue, and several participants thought that we still needed orphan works legislation in spite of the settlement.

One other bit of news: Alex Macgillivrary from Google said that Google would make public information on any title it decided it needed to pull from an institutional subscription (rather than just reporting such titles to the Registry, as the settlement demands)....

I sensed throughout the day a tremendous displeasure with the process used to reach the settlement agreement.  There were questions about whether litigation is an appropriate substitute for legislation; whether the settlement reflected the economic interests of the people at the table rather than the entire class; whether the Registry will operate to the benefit of all the members of the class or only certain types of authors and publishers; and what checks there might be on the greed of the participants.  (They have already taken for themselves the royalties due on orphan and public domain works.  Who knows what they will do with public and institutional pricing?) ...Most librarians would say...that the profession played no meaningful role in shaping the settlement....

Yes, the class may be too large and the mechanism too crude, but we created this problem when we abandoned formalities, lengthened copyrights, and started treating every copyrighted item in the world like it was a Disney movie.  Given this procrustean bed we have made for ourselves, the settlement may be our only way out.  Yes, Congress should create a compulsory license authorizing the use of out-of-print books - but don't hold your breath waiting for that.  In the interim, the settlement may be the best we can hope for - even though it has the potential to radically alter all of our worlds.

From Adam Hodgkin:

...Apparently one of the recurring themes in the conference was this mantra "What is good for Google is good for the USA." I am sure that it was said in jest/irony, but that must nevertheless have made the Google participants unhappy. Even if ironic, the comparison is wounding. Just now being compared to General Motors is nearly as bad as being compared to AIG, and is frankly worse than being compared to Microsoft (which would also be very unfair and unwelcome to Google, but the comparisons are coming...). The mantra is especially unfortunate, since it is far too close to the bone: the whole way the Google Book Search settlement is working out is far too US-centric, as though Detroit was the market, and the accessibility of digital books in the rest of the world was not a matter of importance to the US or to Google. General Motors has been building inefficient and slipshod cars which had limited appeal in the rest of the world and failed the ultimate tests of quality engineering and sustainability. Could Google fall into a similar trap of building too much, too wastefully, for local demand and national circumstance without full attention to all the factors which build quality, openness and sustainability? ...

Update (3/17/09).  Also see Paul Courant's notes on the meeting:

The most important single thing about the Google settlement, simultaneously its greatest achievement and among its most vexing features, is the treatment of orphaned works (in James Grimmelman’s witticism, “zombie” works). The problem, as we all know, is that there are millions – no one quite knows how many – of works that may or may not be in copyright and for which the rightsholder(s) may or may not exist and may or may not be aware of their rights. Our ability to use these works is thus much compromised: we run the risk that a copyright holder will appear and claim damages. As we all know, Congress’s efforts to make it easier and safer to use orphaned works have failed. Moreover, the most recent draft legislation would have imposed difficult and costly burdens on a potential user by requiring the would-be user to make substantial efforts to find any potential but unknown rightsholder.

Along comes the Google settlement, which solves at least part of the problem, for Google and the Book Rights Registry, at one fell swoop. (Only part of the problem, because works that were not registered with the copyright office will likely not be in the settlement and yet may be just as orphaned as those that are registered.) Under the settlement, revenues generated by orphaned works will be held in escrow for for five years, allowing time for a rightsholder to come forward. It’s a moving window; if the rightsholder comes forward in year 22, she gets revenues from year 17 on. Thus the products that Google sells to individuals and institutions can include, among other works, millions of orphans (zombies). Without the orphans, the great public benefit of the settlement – the ability to find and use much of the literature of the 20th century in digital form – would be much diminished.

At the same time, the disposition of the revenues attributed to orphaned works is one of my least favorite parts of the settlement. The unclaimed revenues go first to support the operations of the BRR, and then, after that, will be used for charitable purposes consistent with the interests of publishers and authors. As the head of a library that has lovingly cared for these works for decades, the notion that the fruits of our labors (and those of many others in many libraries) redound to the benefit of entities that did not write, publish, or curate these works sticks a bit in my craw. So I hope that authors, publishers, the court, and the public will be vigilant in making sure the BRR does not squander the unclaimed revenues on mismanagement, high salaries, and the like. The “charitable purposes” should be an objective, not a remainder for unclaimed funds.

The settlement also gives Google and the BRR, and no one else, the right to use the orphaned works in this way. A number of commentators, have noted problems that may arise from Google’s privileged position in this regard. But there is an obvious solution, one that was endorsed at the Columbia meeting by counsel for the Authors Guild, the AAP, and Google: Congress could pass a law, giving access to the same sort of scheme that Google and the BRR have under the Google Settlement to anyone. And they could pass some other law that makes it possible for people to responsibly use orphaned works, while preserving interests for the missing “parents” should they materialize. Jack Bernard and Susan Kornfield have proposed just such an architecture to “foster” these orphans. Google has also made a proposal that would be a huge improvement....

Also see Peter Brantley's notes, and Norman Oder's two stories in Library Journal (1, 2).