Grimmelmann and Vaidhyanathan Talk Google Book Settlement at Georgetown University
On Friday, Georgetown University hosted its Eighth Scholarly Communication Symposium. The program was titled “Google and the Future of Higher Education,” and featured James Grimmelmann, Associate Professor at New York Law School, and Siva Vaidhyanathan, Associate Professor of Media Studies and Law at the University of Virginia. Grimmelmann and Vaidhyanathan discussed the proposed Google Book settlement. For a bulleted synopsis of the talk, check out the post at Blurring Borders.
Grimmelmann said that the settlement is meant to be comprehensive, since the scale of the scanning project itself makes negotiating with individual authors prohibitive. He talked about orphan works “hanging over the head of U.S. Copyright law,” and said that the settlement breaks the logjam on the orphan works problem. As we know, the settlement would enable Google to sell access to the full text of books, not only continue to scan and index books. Grimmelmann said this will make Google the “world’s largest bookseller.” Google will collect the money, store it, and distribute it to authors (and to orphaned authors if and when they show up).
By requiring authors to opt-out of the settlement class (to which they are automatically included), Grimmelmann said that Google/authors/publishers have created an “elegant solution,” and one that is “about the best we can hope for” for authors and publishers we can’t find.
However, James said that Google may become a bottleneck through which all books will flow, since they’ll be the only game in town for serious, online access to many of these works. He warns that there are no provisions for the privacy of readers. “Google can track what you read,” said Grimmelmann. “How much Marx, how much Marx Brothers.” He also said there’s no provisions for consumer rights concerns, since the settlement may be seen as a conversation between private parties. Grimmelmann generally questioned the effect the settlement may have on current copyright law.
Grimmelmann returned to the issue of orphaned authors, and challenged whether the settlement needed to use the class action device. He said that the typical class action is a settlement for wrongs done in the past, providing remedy for those affected by things like faulty drugs or products that don’t do what they claim to do. Under the Google Book settlement, everyone who owns a copyright has become one of the plaintiffs. “Did we agree to this?” asks Grimmelmann. Orphan works owners will not benefit because they can’t be found to claim their money, and can’t be found to object. In essence, the settlement class consists of group of people who do not realize that they are a part of it. At the same time, said Grimmelmann, a small group of class owners have been using orphan works as a bargaining chip in their favor.
James said that Google has a head start on digitizing and making books available, and any other competitor would need to get permission from every member of the class to do the same thing. Google and Google alone can sell access to this huge backlog. He cautioned that the settlement fine print will cause damage for society and for the way we access books. Grimmelmann was skeptical of the use of the settlement to decide such matters. “We have legislation, we have agencies that take expert testimony,” he said. “The courtroom is not the place to decide the interests of a million-member class of people…this is not the way things ought to be done in a democracy,” said Grimmelmann.
Grimmelmann said he still thinks the settlement is a net positive for society. “Good things can come from corrupt practices.” But, he said that society need not settlement for something merely better than the status quo. Just because we haven’t come up with something better by ourselves, he said, we don’t need to accept the the settlement simply because it’s better than nothing…it should be good.
Vaidhyanathan gave an overview of the history of the Google Book Search project since its beginnings only a few years ago. From his own experience of receiving minimal compensation from participating as an author in Google Book Search, Siva questioned the economic utility to authors of the project in general. The service “will allow long forgotten books to be discovered at the rate of 10 cents per year,” he said.
Siva said that fair use should continue to be a foundation principle for copyright law. While many predicted that Google would have prevailed in its fair use assertion had the infringement lawsuit gone to trial, Siva disagreed. He said there were lots of ways Google could have lost, seeing a wide gap in the potential outcomes a liberal circuit court versus the non-experimental nature of the U.S. Supreme Court, had the case progressed that far. Instead, he wished that institutions would have taken up the massive digitization project from the beginning. If libraries would’ve engaged with this, they’d have law on their side, he proffered.
Vaidhyanathan suggested that Google has lofty goals in the Book Search project, and wants to “gather the lexicon of the human experience.” He said that Google may wish to delve into semantic analysis of as many of these books as possible. He said they want to create a better understanding of how human language works so they can improve their search function. Having so much text at their disposal is part of their profit making plan down the line, he said. If Google Book Search was just about creating an index, Siva offered, Google would’ve done it through their non-profit channel.
Siva observed that Google seems to be imposing new norms on the world without the mess of legislative scrutiny. He went on to say that relying on the courts is not a healthy way to create policy. Google had the cash now, he said, and they are betting on expediency at the expense of the longer term good.
He questioned whether libraries are getting the raw end of the deal with regard to the settlement. “Are libraries contributing to corporate welfare,” he asked, “and getting back inferior quality copies?” Will public libraries have “book vending machines”? Vaidhyanathan was disappointed if this is indeed the future for public libraries, since libraries have represented for a long time a place to go and not be seduced by commercial temptations.
Siva echoed Grimmelmann’s worry about reader and consumer privacy considerations, saying that Google is the great “personal information vacuum.” He also suggested that we should know more about the principles and guidelines that place one book above another in response to a search query within Book Search. While we have a basic understanding of how Google ranks webpages, books are a different story. A book published in 1930 lacks hyperlinks, so Google’s Page Rank may not work so well. Siva called for more transparency in Google’s use of metadata around the book ranking process. “We’re entering a situation where we have diverse voices, but the gate keeping function is where the winners and losers are chosen, and that’s where we need to be careful,” he said.