Google Book Settlement

The proposed Google Book Settlement was on the agenda at the 2009 International Federation of Library Associations (IFLA) Conference that took place in Milan late last month. Various speakers contributed to a well-attended panel discussion called “The Google Book Settlement: Love it or leave it.” Jonathan Band of Policybandwidth.com gave an overview of the Google Book Settlement. Band described the Google is scanning a corpus of some 30 million book, of which 20% of these books may be in the public domain, 5% are in print, and 75% are out of print. He emphasized that the settlement focuses on the out of print, in copyright books. The 75% that are out of print is the “the twilight zone,” as it’s extremely difficult to track down many authors. Band explained that the proposed settlement routes around this transaction cost of finding authors of millions of out of print, but in copyright books.

Band explained that the proposed settlement only applies to books that have been published before January 5, 2009, therefore making it a “backward looking” agreement. He also said that the settlement doesn’t apply to periodicals, photographs or inserts. The settlement also applies only to U.S. copyrights. But, as Band clarified, foreign authors may be implicated in the settlement. For example, an Italian author may write a book in Italian and publish the book in Italy, hence an Italian copyright. But, there may also be a U.S. copyright in the book that extends under the Berne Convention.

Band described that the settlement would create a collecting society called the Book Rights Registry. The Registry would collect fees for in copyright, out of print books and distribute the monies to rightsholders who have registered under the settlement. He said that the settlement allows rightsholders to remove books from the settlement, and that the Court in the Southern District of New York still needs to approve it.

Speaking to a largely international audience, Band explained a little about the U.S. litigation device under which the settlement is being brought–the class action. In a class action, claimants bring action on behalf of themselves and others that are in similar situations. Band said that the settlement is binding on all authors and all publishers, which may be “the genius or the absurdity” of it. Perhaps most strangely, the settlement would apply to all absent rightsholders. This has been a major point of contention surrounding the settlement. Band said that the Book Rights Registry will have a board of directors that will be made up of equal parts authors and publishers.

Band went on to explain some of the services that would be enabled if the settlement is approved. These services include expanded book previews, consumer purchase, institutional subscription, and public access service. The services would only apply to U.S. users. Band clarified that the services would apply to those books in the in copyright, out of print category. The default for in print books is that none of these services would be available – only bibliographic info will be displayed, as Google figures that publishers will sign up for the partner program to display and market newly released books.

Consumers will be able to purchase perpetual online access to in copyright, out of print books under the consumer purchase service. Band said that Google will set the price of individual books algorithmically, but that the individual rightsholder can change the price of his or her book as they see fit. All services will accommodate the visually disabled with a read aloud or similar function. Band said that the institutional subscription would be the service of greatest interest to libraries. Under the institutional subscription, students, faculty, staff and other authorized persons at an institution that has purchased a subscription will be able to view the full text of all the books in the database. Band said that Google and the Registry will set the price of the institutional subscription, and that a pricing review is available to partnering libraries.

Band went on to briefly describe the public access service, which will provide access to the complete database of books at one terminal per public library building, and one terminal for each 10,000 students at the university library. He explained that the participating libraries – those libraries that provide to Google books for scanning –will a get digital copy of each book that Google scans. Upon receipt of these copies, the libraries release themselves from copyright liability, but need to implement stringent security measures so that the copies do not leak out. Also, the universities are restricted in what they can do with the copies – in essence the copies returned to the universities is almost like a dark archive. But, as the books come out of copyright, the libraries will have them in digital form and will be able to share them freely.

Another aspect of the settlement Band explained was the distribution of revenues. Under the proposed settlement, Google pays $60 per book to those rightholders that have had their books scanned by Google prior to May 5, 2009. Google would generate money through advertising, institutional subscriptions, and consumer sales. Google gets 37% of the generated revenue and the Registry gets 67%. Only rightsholders that have registered with Google will get paid.

Band reiterated that the deadline for opting out of the settlement is September 4, 2009. (The Court has extended the deadline for filing objections and comments to September 8, 2009). The Court will hold a fairness hearing on October 7, 2009. Band explained that the Court must then decide whether the settlement is “fair, reasonable, and adequate.”

Jon Orwant from spoke on the panel on behalf of Google. He said that from the get-go, Google believed that the scanning of books is fair use and legal. He said that about 10 million books have already been scanned, and that Google aims to scan around 30 million. Orwant said that Google currently partners with 42 libraries, seven of which are outside of the U.S.

Orwant explained that the Book Rights Registry is not exclusive – he said that if another group creates an alternative to the Registry, any author could take their book out of Google and give to another competitor, like Amazon. Orwant said that the goal of the Google Book Project is not to make money selling books, it’s about opening up access. He said that the settlement creates an incentive for rightsholders to come forward and say, “that book is mine.” Orwant said that the proposed settlement will give authors more control over how they market and distribute their books. Traditionally, he said, we haven’t been able to change the price of our books, but with digital books, we can.

Orwant championed the massive research corpus that would be available for researchers and under the settlement. The corpus would allow for research projects that can analyze the language across all of the scanned books. Universities would initiate such research projects, and could vouch for international uses of the research corpus.

Orwant claimed that in the end, we all need  better information and metadata about books. We need to know which are in copyright, who is the author, etc. He said that the settlement effectively decreases the number of orphan books–those books whose author can no longer be located. Orwant estimated that 10% of the books Google has scanned may be orphan books. He said the number of orphan books will be low because most of the books that Google is scanning come from libraries, and that the library has seen some utility in collecting it and preserving it’s metadata.

Jim Neal, University Librarian at Columbia University, talked about the proposed settlement from the library perspective. He said that within libraries, we see rapidly shifting user behaviors and expectations. We have redundant, inefficietnt library operations. We see increased emphasis on unique resources. He said we need to achieve scale and network effects through aggregation of content and services. As more library services are pushed into the cloud, Neal said that libraries need systemic, fundamental change.

Neal said that libraries feel repository fatigue – we have government repositories, publisher repositories, institutional repositories, personal repositories. He said we need to be concerned about the integrity and accessibility of information in this type of environment. Libraries have dealt with analog information, and now they continue to tackle digital conversion, born-digital materials, disaster preparedness, and long term insurance in access to information.

Neal argued that the Google agreement advances licensing over copyright. He said the proposed settlement affects libraries and users deeply, touching on legal, economic, political, psychological, and social issues. He also suggested that the settlement could expand arenas for collaboration between libraries and other sectors. Neal said that libraries need less hand holding, and less duplication of effort in scanning and preservation. Google has given lessons in the potential benefits of public-private partnerships.

Neal said that there are clear business interests throughout the proposed settlement–there will be ads, institutional subscriptions, individual purchases. Speaking specifically about the institutional subscription, Neal said that libraries cannot afford a repeat of how electronic journals are priced and marketed to universities. Neal also said that the Google agreement raises major public policy concerns, including fair use, orphan works, user privacy, intellectual freedom and censorship, the knowledge divide, and antitrust.