For Immediate Release

WASHINGTON, D.C. – The American Library Association (ALA), the Association of College and Research Libraries (ACRL) and the Association of Research Libraries (ARL) sent a letter to William Cavanaugh, Deputy Assistant Attorney General of the U.S. Department of Justice’s (DOJ) Antitrust Division yesterday, requesting the Division to advise the court presiding over the Google Book Settlement to supervise the implementation of the settlement closely, particularly the pricing of institutional subscriptions and the selection of the Book Rights Registry board members.

The letter, which was sent following a meeting the library groups had with the Antitrust Division, also recommended that the Division itself actively monitor the parties’ compliance with the settlement’s provisions.

In particular, the library groups urged the Division to ask the court to review pricing of institutional subscriptions whenever the Division concludes that the prices do not meet the economic objectives set forth in the settlement. In order to evaluate the price of an institutional subscription, the groups believe the Division should have access to all relevant price information from Google and the Registry.

The library associations assert that the Division should ask the court to review any refusal by the Registry to license copyrights in books on the same terms available to Google and to also review the selection process for the Registry Board to ensure the interests of all rightsholders are considered.

With an absence of competition for the proposed services, the settlement could compromise fundamental library values such as equity of access to information, patron privacy and intellectual freedom, according to the library associations who filed comments with the presiding judge on behalf of libraries and the public interest.

###

Contacts: Jenni Terry, Press Officer, ALA Washington Office
(202) 628-8410, jterry@alawash.org

Prue Adler, ARL Associate Executive Director
(202) 296-2296, prue@arl.org

Library Associations GBS Letter to DOJ

CONTACTS:
Jenni Terry, press officer, ALA Washington Office; (202) 628-8410; jterry@alawash.org
Prudence S. Adler, associate executive director, ARL; (202) 296-2296; prue@arl.org

WASHINGTON, DC – The American Library Association (ALA), the Association of College and Research Libraries (ACRL) and the Association of Research Libraries (ARL) today filed comments with the U.S. District Court for the Southern District of New York for the judge to consider in his ruling on the proposed Google Book Search Settlement.  The associations asked the judge to exercise vigorous oversight of the interpretation and implementation of the settlement to ensure the broadest possible benefit from the services the settlement enables.

Representing over 139,000 libraries and 350,000 librarians, the associations filed the brief as members of the plaintiff class because they are both authors and publishers of books.  The associations asserted that although the settlement has the potential to provide public access to millions of books, many of the features of the settlement, including the absence of competition for the new services, could compromise fundamental library values including equity of access to information, patron privacy and intellectual freedom.  The court can mitigate these possible negative effects by regulating the conduct of Google and the Book Rights Registry the settlement establishes.

“While this settlement agreement could provide unprecedented access to a digital library of millions of books, we are concerned that the cost of an institutional subscription may skyrocket, as academic journal subscriptions have over the past two decades,” Erika Linke, president of ACRL, said.

Under the settlement, Google, the Association of American Publishers and the Authors Guild resolved their legal dispute over the scanning of millions of books provided by research libraries.  The library associations are not asking the judge to reject the settlement.  Instead, they are requesting the judge to carefully monitor the parties’ behavior once the settlement takes effect.

Jim Rettig, president of ALA, said the proposed settlement, “offers no assurances that the privacy of what the public accessed will be protected, which is in stark contrast to the long-standing patron privacy rights libraries champion on behalf of the public.”

Although the filing deadline for comments to the judge was recently extended by four months, the associations moved forward with filing by the original deadline to help inform the public as it considers this important and complex matter.

“The filing before the court by the library associations demonstrates that the associations will be vigilant in highlighting the interests of the public in this settlement.  We have asked the court to exercise vigorous oversight to ensure that the powerful groups that control content do not leave individual researchers, libraries, other cultural organizations and the public without an effective voice,” Tom Leonard, president of ARL, said.

The library associations filing can be viewed on the ALA or ARL Web sites.

ALA, ACRL, ARL Google Book Settlement Brief

Although this is a private settlement, the result has very real implications for public policy and the way libraries of all types will operate.  The mission of libraries is to provide the broadest public access to the use of information, and the library community has a long history of advocating for laws and policies that protect the rights of library users. Because of the complexity of the agreement, its potential long-term impact on libraries, thus user interests, and the enormity of the book collection involved, many librarians have raised questions about the settlement’s impact.

Issues raised at the meeting that members believe are of key concern to libraries include:

-Access. What will the settlement mean for protecting the public’s ability to access and use digital resources from the nation’s libraries? Since the Book Rights Registry established as a condition of the settlement will represent the interests of the authors and publishers, who will represent the interests of libraries and the public? What are the financial implications of participation? Could the settlement create a monopoly that threatens the mission of libraries by raising the prices to an unreasonable level that limits public access?

-Privacy. What will reader privacy look like in a Google subscription-based world? Will the years of hard-fought effort to protect library users’ confidentiality be compromised as a for-profit company has new capabilities to monitor and track user reading habits under this settlement?

-Intellectual freedom. Are there academic freedom issues to consider? What are the implications of Google’s ability to remove works at its discretion? Will there be notification of their removal? What are the issues regarding possible access and use restrictions on the Research Corpus?

-Equitable treatment. Since not all libraries are addressed in the settlement, what impact will it have on the diverse landscape of libraries? In light of tight economic times, will this negatively affect libraries with lean budgets? Will it expand the digital divide?

-Terms of use. Under the terms of the agreement, will library users continue to enjoy the same rights to information under copyright and other laws? Will the settlement impact the legal discussions and interpretations of library exceptions that allow for library lending, limited copying and preservation?

Next, the executive boards and other leadership bodies of the library associations will consider a number of options available to them to have their voices heard in this debate. To stay posted on the latest developments of the associations’ next steps, see www.ala.org/washoff; www.arl.org; and www.ala.org/acrl.

Download this document as a PDF

As mentioned in an earlier post, panelists included Dan Clancy, Engineering Director for the Google Book Search Project, Paul Courant, Dean of Libraries at the University of Michigan, Karen Coyle, Digital Librarian and Consultant, and Laura Quilter, Librarian and Attorney at Law.

Dan kicked off the panel by giving a brief overview of the main points of the settlement. He stressed that the agreement is a compromise, and settles the class action lawsuit between Google, the Association of American Publishers, and the Authors Guild. The explained that the settlement class includes anyone with copyright interest in a book before published before January 5, 2009.

Dan said that the settlement does not affect books in the public domain, and does not include journals, magazines, newspapers, and images if the rightsholder of the image in a book is different than the rightsholder of the book itself. The settlement also applies only to rightsholders in the United States.

Mr. Clancy explained that the settlement allows Google to continue to scan, index, and otherwise use non-display versions of books. This corresponds with the default status today for in print books. Currently, Google’s scan index the contents of books, allowing users to search the full text of works, but only displaying up to 3 snippets of text per work (a snippet is considered a “non-display” use).

Under the proposed settlement, the default status for out of print (also called “not commercially available”) will be that access models are turned on–rightsholders of out of print book can opt out if they wish, but the default will be to include their materials under the settlement provisions. Rightsholders of in print books need to opt in (this is how it’s always been).

Dan explained four models of access under the proposed Google Book settlement. First, there will be the online consumer purchase, where individuals can create an account with Google to purchase perpetual access to the full text of an individual in copyright, out of print book. He called this service the “digital locker.” Second, he said that all users will be able to preview up to 20% of a book (more or less, although there are some stipulations to this–see “A Guide for the Perplexed for more detail…). He said that Google will also provide links to where users can find the physical book in the library, or purchase the physical book online (such as from Amazon). Third, Dan explained briefly the concept of the “institutional subscription database” (ISD), which will include essentially the entire database of in copyright, out of print books. Universities will be able to purchase access to the full or subset portions of the ISD, depending upon the number of FTE equivalent students there, and those users will be able to access the ISD remotely. These types of users will be able to view the full text of the materials in the ISD, print 20 pages with a single command, and copy/paste 4 pages in single command. There was talk that the ISD should be able to be integrated into the ILS system within a university, making it easier for students to access, and potentially connect it with other Google services used by students and faculty. Fourth, Dan laid out the intial provisions for the “public access service” (PAS). He said that for those libraries that choose not to subscribe to the ISD (public or university), Google will provide one terminal per building which allows for full access to the contents of the ISD. Although users will be charged a per page printing fee, Dan said that Google will pay for the printing costs for 5 years or up to $3 million.

Mr. Clancy touched upon the various levels which libraries may participate under the Google Book settlement. Fully participating libraries will receive what’s called a “Library Digital Copy” (LDC), which comes with certain restrictions and provides for certain authorizations of use. For example, under the fully participating library agreement, Google can return a digital copy of a book scan to the participating library (such as University of Michigan). The library will be absolved of copyright infringement liability, but must follow particular security provisions. These libraries may also receive book scans from other participating libraries under certain conditions (see the agreement summary for more details).

Dan said that Google will set up a process to handle public domain books. He admitted that there are scaling problems in determining whether a book is in the public domain.

Paul Courant said he represents a large academic library (University of Michigan), and feels that it is the duty of his institution to take social responsibility for some pieces of the world’s cultural collection that otherwise might go away. He questioned, “if we hadn’t had the settlement, where would we be now?”Paul referenced the recent article by Bob Darnton, in which Darnton said that if universities and libraries and other organizations would have just stuck together and organized better, we could have had a large scale digitization project without private help. Courant said that this is what everyone would’ve liked, but obviously not what has happened.

Paul said that if we never had the settlement, we would’ve just had snippets and indexing, and not ability to actually read the books. He said that if we never had the settlement, libraries may have tried to negotiate, publisher by publisher, the right to display works. However, he assumed that under this case, the negotiations wouldn’t have gone well, and would’ve probably required libraries to pay money to the publishers for these display rights.

Before Google began its book scanning project, Paul said that this utopian vision of a large, noncommercial digitization initiative had the likeliness of success of 1 in 100,000. However, with Google at the front in the book digitization business now, Paul admitted that the same vision is probably now 1 in 1 million. Courant claimed that the settlement agreement potentially weakens fair use for libraries, since the settlement in effect creates a market for old works, and where there is a market courts are less amenable to fair uses. He said that even though the settlement claims that fair uses are not affected, on the ground, it really is.

Courant said there are many gains for libraries. First, he said that the settlement solves the negotiation problem highlighted above. He said that while class action settlements are generally not very good at solving large coordination problems, it’s what we got and better than libraries negotiating with publishers on a case by case basis. Second, Paul said, for some academic libraries, the settlement provides for a huge increase in the accessible collection. For example, Michigan gets to use materials from Stanford’s collection. For public libraries, he said, the nerdy kid who wants to read 40 year old monographs gets to do it. Third, Courant said that while Google scans are not at archival/preservation standards, there are more usable in more and more cases.

The biggest question Courant wanted to know is “what’s the pricing going to be?” He said that if the pricing of the ISD is going to be like journal pricing, then it’s not going to work for most libraries. But, Paul said he thinks the price is going to be reasonable, if only for the fact that this class of books are out of print for a reason! He said most books go out of print the year they go into print. Courant said that there is a difference between the way libraries subscribe to scientific journals and the way libraries may subscribe to the ISD. The current scientific literature journals have a monopoly on recent stuff, and libraries (at least academic libraries) will continue to feel compelled to subscribe. Courant said libraries like the University of Michigan library has their hands tied here–they’ll subscribe because faculty, researchers, and students demand it. But with the price of the ISD, he claims that if the price is too high, consumers just won’t buy it.

Finally, Courant said that we’re no worse off than we were with the physical books–we just have a richer finding tool. He said that users can still get the physical book from the library or put it on interloan. He claimed that selling things at high prices has not been what Google has traditionally done, so doesn’t think they’ll start now with the price of the ISD. He concluded that there is an ongoing sense of mission at the library that we want the world to read our stuff, but right now we don’t have any other good ways to showing it to you. The Google Book settlement provisions may help with this.

Karen Coyle began by stating that she was not involved in the settlement negotiations, and said that those involved in the agreement bound by nondisclosure agreement (Clancy said this is normally required by the court of members of class action settlements). Karen said she was posing questions from the point of view of libraries that are not signing an agreement as either a participating or cooperating library.

Coyle clarified that the settlement agreement is a contract between Google and the AAP, and that public libraries are bound by nothing in the settlement. She outlined many of the values that are central to libraries in their efforts to serve library users. Coyle posed several fundamental questions libraries and librarians need to ask about the settlement provisions, including:

• Does this product serve users?
• Do library users want to read these books online?
• What are the collection implications for libraries going to look like 3-5 years down the road?
• What is the quality of the scans going to be? (she said there may be some room for librarians/archivists to help educate Google on this)
• What are the privacy implications for users of the product?
• Will Google serve ads within the product?
• Will the settlement properly address accessibility concerns, specifically ADA?
• What are the implications for First Amendment rights and and intellectual freedom, especially since Google and the publishers have the ability to censor or remove controversial books?
• What are the ways Google and the publishers will maintain transparency down the road, especially at public institutions?
• Since the product is maintained by a private entity, is the product sustainable? Libraries have been around for thousands of years and have been experts at preservation. Can the book scans be placed into escrow in case Google goes out of business?
• What are the associated costs to public libraries for the public access service?
• Do the public access terminals represent a product placement for the members of the settlement (Google and publishers)?
• Would Google drop this product if it is not profitable to them?
• Will the settlement agreement inhibit libraries from innovating or participating in creating new technologies an services with their own data?

See more questions from Karen and her remarks.

Laura Quilter, like others, said she felt “wistful” that there would have been a good chance that Google would’ve won the copyright infringement lawsuit brought against it by the AAP and the Authors Guild. She felt there was a strong case for fair use, and that the settlement represents a compromise on behalf of Google with respect to a “permissions culture.” She said that librarians have been trying to push back on this permissions culture.

Quilter questioned how the settlement is going to shape the market. While she agreed with Courant that we’re definitely a step ahead from where we would have been without a settlement, we must continue to explore where does that trail leads. She said that while librarians are among Google’s biggest fans, we need to retain our representation and autonomy without the need to rely on a private entity such as Google.

Laura said that the terms of the settlement are significantly different from the old scanning agreements that Google had with universities. In fact, she said, the old deal might actually have provided more rights to libraries than the new agreement. Under the new agreement, there is no ability for customized deals with libraries beyond the specific participation levels set out by Google and the publishers in the settlement details.

Quilter also raised several questions about the settlement, including the implications on Section 108 rights for libraries or archives to make reproductions of materials for their users. She also questioned the various ways library services may be encumbered by the settlement, including certain bans on interlibrary loan lending, restrictions on using the scanned materials in university courses, and restrictions on off site access to the books database. Quilter, like others, challenged the public access service provision for public libraries, which sets aside a single workstation for access to the ISD. She said that this access is inadequate for all but the smallest libraries.

Another issue brought up by Laura is that school libraries are left out entirely from the agreement. She also said that there may be some intellectual freedom issues–Google is not subject to information transparency regulations required of public libraries by some state statutes. Quilter again raised the issue of user privacy in relation to the provisions of the settlement, including the ability of Google to record what books users read, which pages get read, how long users spend on an individual page, and more. She contrasted this to the strong privacy protections that public libraries assure their users (Clancy said Google had not thought about this, but was not really interested in this type of data collection).

If Google may remove books for editorial reasons, Quilter advocated for stronger guarantees about what this will actually mean in practice. She also questioned the DRM on the books in the database, and said that users would be able to do what they want with the materials that they purchase. For example, the scans of the books cannot be ported to mobile devices like the Kindle.

Laura agreed with Coyle that if perpetual access is indeed promised with the consumer purchase, we need to make sure this is guaranteed by placing copies of the book scans in escrow, potentially in the care of the library community. Finally, Quilter questioned whether libraries can leverage their market power in order to make changes to the proposed settlement.

We’ll post more from the Q&A in a later post.

Panelists will include Dan Clancy, Engineering Director for the Google Book Search Project, Karen Coyle, Digital Librarian and Consultant, Paul Courant, Dean of Libraries at the University of Michigan, and Laura Quilter, Librarian and Attorney at Law. The session will be moderated by Nancy Kranich, chair of the COL Copyright Subcommittee. Following brief opening remarks by each panelist, there be an opportunity for dialogue and questions from the audience.

If you’re not able to join us at Midwinter Conference and want to ask a question, please contribute your ideas in the comments section to this post! The questions will be aggregated and presented to the panelists by the session moderator.