Open Access News

Here are some more comments from the press and blogosphere on the Google-Publisher settlement.  This is my fifth collection and will be the last, at least until there's a new development.  Also see collections 1, 2, 3, and 4.

From Andrew Albanese in Library Journal:

...One of the big questions [about how the settlement will affect libraries]: the deal’s allowance for free access at a designated terminal within public libraries. On one hand, getting every library a free access terminal for patrons to use the full Google Book Search database is a win for libraries —certainly neither Google nor publishers were obligated to consider libraries needs in their deal. On the other hand, critics note, mandating a “single terminal” is a  counterintuitive restriction in the digital age, and unfairly lumps all libraries, large and small, well-funded or not, into a single, geographic point of access.

“I strongly object to at least one aspect of the proposed Google Book Search settlement, which lets libraries offer just one terminal per library building for access to various books,” blogged Teleread’s David Rothman. “How backwards —not just the one terminal limit, but also the whole notion of linking access to your presence inside a library!” 

Digital Library Federation president Peter Brantley called the restriction “irksome” and hinted that a one-size-fits-all provision was inadequate in the face of a lingering digital divide. “I do not know where program management at Google wakes up every morning; I do not know what pretty suburbs publishing executives wake up in every morning,” Brantley blogged. “But in Richmond, CA, [Brantley’s home city] and in many cities around the country, it is heinous to suppose that one public terminal given free reign to the corpus of the world’s literature is an adequate set aside against the promise of the opportunity that Google, publishers, and authors have made possible.” ...

Of course, as public libraries are not parties to the suits, or members of the classes involved in the suit, it will be largely incumbent upon others to fight for such changes —and Brantley urged those others to revisit the issue. “This is not an economic matter, it is a social foundation,” he wrote. “A library is a refuge; you can provide solace in that refuge, and a promise for a different and better kind of future. It is morally incumbent upon you to do so.” 

From Nate Anderson in Ars Technica:

Readers who have reached a certain age —in this case, 30— might remember what it was like to hunt down an out-of-print book in the bad old days....

One area covered by the important new Google Book Search settlement is that of out-of-print books, which are now on a path to a page or screen near you. The agreement gives Google broad opportunities to sell display or print-on-demand access to out-of-print titles, potentially providing easy access to nearly the whole of human thought and knowledge when the scanning project is complete....

We've heard talk for years of POD fantasies —walking into a bookstore, selecting any book ever printed, leaving the store with a printed copy. But this sort of talk always ignored the tough question of how to get all that material into digital form....Google solved the problem by throwing cash at it....

But most of the twentieth century's work remains out-of-print but in copyright, and Google's settlement agreement may soon make it easily accessible. That might not matter to most, but even small victories in the long war for knowledge are worth heralding....

From Jonathan Band and the ARL in A Guide for the Perplexed:  Libraries and the Google Library Project Settlement:

...This paper does not explore the policy issues raised by the settlement. Rather, it outlines the settlement’s provisions, with special emphasis on the provisions that apply directly to libraries....

From Karen Coyle at Coyle's InFormation:

...Beyond the (undoubtedly hard-won by library representatives) single terminal access in each public library in the US, libraries will be asked to subscribe to the Google Book service in order to give their users access to the text of the books (not just the search capability). This is one of the more painful aspects of the agreement because it seems to ignore the public costs that went in to the purchase, organization, and storage of those works by libraries....The parallels with the OCLC mess are ironic: libraries paying for access to their own materials. So, couldn't the libraries just refuse to subscribe? Not really. Publicly funded libraries have a mission to provide access to the world's intellectual output in a way that best serves their users. When something new comes along -- films on DVD, music on CD, the Internet -- libraries must do what they can to make sure that their users are not informationally underprivileged. Google now has the largest body of digitized full text, and there will be a kind of "information arms race" as institutions work to make sure that their users can compete using these new resources....

I can't imagine that anyone thought that libraries and Google were digitizing books primarily so that people could read what are essentially photographs of book pages on a computer screen. Google initially stated that they were only interested in searching the full text of books. While interesting in itself, keyword searching of rather poor OCR text is not a killer app. What we gain by having a large number of digitized books is a large corpus on which we can do computational research. We can experiment with ideas like: can we follow the flow of knowledge through these texts? Can we create topic maps of fields of study? Can we identify the seminal works in some area? The ability to do this research is included in the agreement (section 7.2(d), The Research Corpus). There will be two copies of this corpus allowed under the agreement, although I don't see any detail as to what the "corpus" will consist of. Will it just be a huge file of digitized books and OCR? Will it be a set of services? ...

Research will NOT be limited to participants; others can request access. What I haven't yet found is anything relating to pricing for the use of the research collection, nor if being a participating library grants less expensive access for your institution. If the latter is the case, then one motivation for libraries to agree to allow Google to scan their books (at some continuing cost to the library) will be that it favors the institution's researchers in this new and exciting area....

From L. Gordon Crovitz in the Wall Street Journal:

...[C]ontent owners are finally realizing they're better off helping their customers use digital media than trying to stop the march of technology....

The most fascinating truce in the copyright wars is this month's settlement of litigation between book publishers and authors on one side and Google on the other -- at $125 million, the biggest book deal ever. Google has digitized some seven million books. Of these, one million were already covered by an agreement with publishers to allow "preview" selections of books. Another one million books are old enough that they're no longer covered by copyright.

The settlement focused on the remaining five million books, which are still under copyright but no longer in print. This sounds like a perfect application of the Web -- letting people find digital versions of books not otherwise available. But it was unclear what "fair use" meant to determine how much of a book Google could display before having to pay publishers and authors. The settlement agrees that 20% of a book can be previewed without payment. So while fair use is still undefined for other situations, this is an important precedent that benefits both consumers and content owners. It also, of course, benefits the Google colossus by letting it display for free significant excerpts of books it's already digitized....

The market solution means Google will now offer millions of books for sale, sharing the proceeds with publishers and authors. Books long out of print will be searchable and available for a fee....

This shift by Google led Peter Osnos, founder of PublicAffairs books, to wonder if the book settlement could have lessons for other owners of content. "Google has now conceded, with a very large payment, that information is not free," Mr. Osnos wrote for the Century Foundation. "This leads to an obvious, critical question: Why aren't newspapers and news magazines demanding payment for use of their stories on Google and other search engines?..."

From James Grimmelmann at The Laboratorium:

Summary of principles and recommendations (hyperlinks take you back to the section of the document that discusses them)

• P0: The settlement should be approved
  • R0: Approve the settlement.
• P1: The Registry poses an antitrust problem
  • R1: Put library and reader representatives on the Registry’s board.
  • R2: Require the Registry to sign an antitrust consent decree.
  • R3: Give future authors and publishers the same deal as current ones.
• P2 If it didn’t already, Google poses an antitrust problem
  • R4: Strike the most-favored-nations clause.
  • R5: Allow Google’s competitors to offer the same services the settlement allows Google to offer, with the same obligations.
  • R6: Authorize the Registry to negotiate on copyright owners’ behalf with Google’s competitors.
• P3: Enforce reasonable consumer-protection standards
  • R7: Prohibit Google from price discriminating in individual book sales.
  • R8: Insert strict guarantees of reader privacy.
  • R9: Protect readers from being asked to waive their rights as a condition of access.
• P4: Make the public goods generated by the project truly public
  • R10: Require that Google’s database of in-print/out-of-print information be made public.
  • R11: Require that the Registry’s database of copyright owner information be made public.
  • R12: Require the use of standard APIs, open data formats, and (for metadata) unrestricted access.
• P5: Require accountability and transparency
  • R13: Require that Google inform the public when it excludes a book for editorial reasons.
  • R14: Tighten up the definition of “non-editorial reasons” for excluding a book.
  • R15: Allow any institution ready, willing, and able to participate in scanning books to do so.

[Update, 2/11/09: Grimmelmann has expanded upon his blog post for a law review article. Here's the preprint.]

[Update, 3/25/09: Grimmelmann's article was published in the April 2009 issue of the Journal of Internet Law.]

From Georgia Harper at @collectanea:

...[One point from] the Google Book Search settlement...is a very big deal from my perspective and it doesn't appear to be getting even so much as a mention from...most observers. It's the part about pricing, specifically, the settlement controlled price and the testing that Google is entitled to do to demonstrate that more (or less) openness yields greater returns for copyright owners. These terms are contained in sections 4.2 and 4.3 of the deal respectively.

So, the deal gives Google "bins" to put books in for settlement controlled pricing. Copyright owners can opt out and set their own prices. But for those who don't opt out and who "settle" for settlement pricing, and that would include all orphan works since by definition, there's no one there to opt out, Google sets the price at a level that gives the optimal revenue. Google can adjust the price in a number of ways, but the goal is to maximize or optimize revenue.

Add to this the right Google has retained to conduct tests on books to see how much openness yields optimal revenue. Wow! Cool move. Finally, a right to test out the theories, to demonstrate for different types of books whether openness sells more or less. Wow again. Gentlemen, gentleladies, place your bets...

I my opinion about it, these two provisions can really accelerate a push to zero pricing for digital view. But how, you might wonder, could zero price for digital view return optimal revenue? I'm assuming owners sell added value, not digital view. What can added value be? Who knows. But I'm betting that, again, the stage is set to find out. Let's see, print on demand, print at all, sophisticated digital functionality, networked interactivity, right to commercially exploit, right to build services on top of, oh, gee, what else might someone who actually has the potential to make some money off these ideas come up with? We *will* see....

From Adam Hodgkin at Exact Editions:

...[The] Books Rights Registry...doesnt wait for the judge. It is already whirling into action and authors and publishers are addressing it. This agency is something that the books world needs....That Google is doing this is in many ways a good thing -- what an appaling prospect if the publishers were to try and build such a system! But there are dangers and ironies in a situation where Google as the commercial fox, the first and prime exploiter of the distribution opportunities flowing from the settlement, is also designing the chicken wire and building the coop in which the hens will be housed. It is a bit odd for a commercial operator to building its own regulator. Yes, I know that the 8 directors of the Registry are all appointed by the publishers and the authors (4 each). But directors decide the issues that haven't already been decided, its the architect and the plumbers who get the building to function. Odd, but possibly unavoidable in these strange circumstances....

[The judge who must evaluate this settlement] should really be looking very carefully at the API which the Rights system will incorporate and the principles which underline the API....These are matters of principle and public good, barely touched on in the public documents about the settlement, where we need judicial oversight. Perhaps she will spend some of her time looking at the Android constitution and I hope she will require that the commercial exploitation of literary rights is as open and at least as un-Google biased as Google has promised to make the Android playing field. Some of the Android slogans work rather well for our vision of digital books: 'Books without borders', 'Books can easily embed the web', 'Books are created equal', 'Books can run in parallel'. Digital books should do all of that....

From David Lammy in the Times Online (Lammy is the UK Minister of State for Higher Education and Intellectual Property):

...Every now and then...there is a game-changing event [in copyright law]. The recent agreement in the US between Google, the search giant, and American publishers may be just that....

The effect of this agreement will in the most part be limited to the US. And yet the announcement is of interest to users of the copyright system worldwide. Why? Because this is an agreement that, if it works as it should, will strike a middle ground between the need for public access to works and the right of authors and publishers to control and be paid for the use of their creations.

The result, if it works, will be an evolution in the way copyright licensing for printed works is administered and a revolution in the freedom of access to harder-to-find works — all within a system that will remunerate rights holders fairly and give them control over the use of their works....

From Graeme Neill at Bookseller.com:

The UK Booksellers Association has slammed Google's provisional deal with US publishers to allow users to browse and buy millions of books online. The trade body warned that the arrangement could create "a de facto monopoly" and "have a hugely damaging effect on the publishing and bookselling industry" if adopted in the UK.

The deal received a favourable response from publishers, with many in the UK believing that it was only a matter of time before a similar deal was introduced here. However, the Booksellers Association has become the first book trade body to heavily criticise the deal, claiming it a "bridge too far". "As such a dominant player in the online world, Google will now occupy a unique gateway position that, if abused, could easily create a de facto monopoly," the statement said. "A situation where competition is removed from the market place by placing the keys in the hands of one company cannot, ultimately, be good for the consumer. This is a bridge too far. Monopolies = reduced choice and higher prices."

The BA added that in the long term any deal would deny the customer a choice of retail channels and as well as the interactive experience of shopping, which can help break little known authors. "This recent agreement, if ever adopted in the UK and Ireland, would have a hugely damaging effect on the publishing and bookselling industry and, consequently, for authors and the public as well," it stated.

Last week, the Federation of European Publishers also said that books should be distributed through the widest number of channels as possible....

From Graham Reynolds at The Lawyers Weekly:

...In many ways, this settlement agreement can be seen as providing significant benefits for all of the parties involved. The U.S. public will benefit from increased access to books, particularly those that are out of print but still in copyright. Following the settlement, U.S. users will be able to preview up to 20 percent of books  currently under copyright.

Libraries benefit from the ability to provide a service to the public that they might otherwise be unable to afford to offer. Google will benefit financially from the ability to retain 37 percent of the revenue received from GBS. Authors and publishers benefit from new or expanded markets for their works. They also retain the ability to opt out of the database or limit their participation in the database.

A variety of concerns, however, may be raised with respect to the agreement, ranging from the implications of the settlement for the fair use doctrine to anti-trust concerns stemming from the creation of the book rights registry. A third concern involves the cost of purchasing institutional subscriptions to the electronic database. The lack of any assurance in the settlement that the prices charged for access would be reasonable led the Harvard University Library to decline to participate in the project....

From Eric Sherman at Technology Industry:

...Depending on the very specifics of that agreement between publishers, Google, and the Authors Guild, all three have walked into a veritable quicksand of upcoming woe, argument, and potential law suits, all because they’re forgetting a basic legal issue in most publishing....

Under [the out-of-print clause], which appears in a great many [book publishing] contracts, once a book is officially declared out of print by the publisher, all rights return to the author....You can now see where this is going. Publishers and an organization of authors...have told Google that it can create e-books for out-of-print titles. But if the titles are out-of-print, then the publishers by and large have no rights to the book at all. Only the individual author can make such a deal....

From Kevin Smith at Scholarly Communications @ Duke:

...One of the trickiest aspects of understanding this document is the definition of “books” that it uses.  Careful reading indicates that that term encompasses only works that are in copyright protection and registered with the Copyright Office as of the settlement date.  That means that this agreement deals only with works already published; it does not seem to tell us anything about how or if Google will deal with books (in the non-technical sense) published in the future.  The obvious conclusion is that publishers will be able to opt-in to all or some of the “display use” (snippets, preview, sales of institutional subscriptions or individual titles).  I wonder if such new publications will be subject to non-display uses (text mining, i.e.) when and if Google scans those works, or if those too will be opt-in only.  I also wonder what will happen when works published after the settlement go out of print.  Will publishers have to opt them out of display uses at that point, or will the original opt-in still control? ...

From Fred von Lohmann at the EFF:

For most of the decade, Silicon Valley technology startups have assumed that Google would pay their legal bills. Not literally, mind you, but rather by taking on the big, high-profile cases about fair use, interoperability, and other digital intellectual property issues that would set precedents that all disruptive innovators could rely on.

Well, Google just put the Valley on notice that the free ride is over....

Google, assisted by its expensive, top-drawer legal team, has a track record of winning these precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Google's legal investments have paid dividends for the entire Internet innovation economy.

Until now. By settling rather than taking the case all the way (many copyright experts thought Google had a good chance of winning), Google has solved its own copyright problem — but not anyone else's. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead....

But when innovators like Google cut individual deals, it weakens the Silicon Valley innovation ecology for everyone, because it leaves the smaller companies to carry on the fight against well-endowed opponents. Those kinds of cases threaten to yield bad legal precedents that tilt the rules against disruptive innovation generally....

Also see my own comments.