The countdown to the Oct. 7 court hearing on the Google Book settlement is on. The ground swell of discontent and opposition is growing stronger and louder as we approach the Sept. 4 deadline by which objections must be filed with the U.S. District Court judge who will decide the fate of the proposed settlement agreement between Google and the author and publisher groups that brought suit. It's no surprise that an official opposition coalition has now been formed, but it includes an unlikely assembly of major tech partners-Amazon, Yahoo!, and Microsoft. The just announced Open Book Alliance (www.openbookalliance.org) also includes library organizations, publishing groups, and nonprofits. Its purpose is to "counter the proposed Google Book Settlement in its current form." If the name Open Book Alliance sounds familiar it's likely because it's co-chaired by Peter Brantley, a director of the Internet Archive, the driving force behind the similarly named Open Content Alliance (www.opencontentalliance.com), a collaborative effort to build a global digital archive.
While the organizations are banding together in the Open Book Alliance for added clout and to make a case to the U.S. Department of Justice (DOJ) that the settlement is anticompetitive, the members of the alliance expect to file objections to the court separately. The DOJ is already investigating the proposed settlement.
Members of the Open Book Alliance include:
*American Society of Journalists and Authors (http://asja.org)
*Council of Literary Magazines and Presses (http://clmp.org)
*Internet Archive (www.archive.org)
*New York Library Association (http://nyla.org)
*Small Press Distribution (www.spdbooks.org)
*Special Libraries Association (www.sla.org)
Open Book Alliance co-chairs Peter Brantley and Gary Reback wrote in a blog post at www.openbookalliance.org that the settlement of the lawsuit would create an unprecedented monopoly and price-fixing cartel: "Just as Gutenberg's invention of the printing press more than 700 years ago ushered in a new era of knowledge sharing, the mass digitization of books promises to once again revolutionize how we read and discover books. But a digital library controlled by a single company and small group of colluding publishers would inevitably lead to higher prices and subpar service for consumers, libraries, scholars, and students."
The board of the American Society of Journalists and Authors (ASJA; www.asja.org/google), a group of nonfiction freelance writers, had previously voted to oppose the class action settlement. The group said it would not ask the court to scrap the entire settlement document. Rather, it would ask the court to direct changes in specific sections. "We commend our friends in the Authors Guild for suing Google, and for the thoughtful way much of this settlement is crafted," says ASJA president Salley Shannon. "That said, representation in both the writer and publisher classes needs broadening."
The ASJA is particularly concerned that the settlement does not contain language forbidding Google to censor which books and authors will be in the Book Search database, and that some provisions effectively revise copyright law. "If we have all learned one thing in the past year, isn't it that it is foolhardy to trust any corporation to regulate itself?" Shannon says.
Shannon's statement for the official press release announcement of the alliance was definitely more pointed and prickly: "We're seeing Google the Good morph into Google the Grabby in all of this. First, Google dangles the prospect of a huge, accessible, digital library in front of us. But then it shows utter contempt for the people who wrote the books, by scanning them without the approval of copyright holders. Google didn't mind stomping on authors to get this project going. If the settlement goes through as it stands, sheer marketplace domination will mean every author will have to swallow the rules set down by a cabal of a registry board or sell no digital books or future, new digital inventions."
Michael J. Borges, executive director of the New York Library Association (NYLA), says that NYLA hasn't previously taken a visible role in national issues but the organization's leadership council felt strongly about the ramifications of the settlement on its library members and their patrons, and thus felt it important to join with the alliance in expressing their concerns. And the case is being heard in New York. NYLA's members include school, academic, public, and special libraries, all of which will be impacted by the settlement, he says. "Access, affordability, and patron privacy issues are key concerns of ours that we do not believe have been adequately addressed so far."
At the end of July, The American Library Association (ALA), the Association of College and Research Libraries (ACRL) and the Association of Research Libraries (ARL) sent a letter to the DOJ's Antitrust Division, requesting it to advise the court presiding over the 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.
These library associations have not joined the newly formed alliance. According to Corey Williams, associate director for ALA's Office of Government Relations, ALA leadership worked closely with its membership to shape its position on the settlement. The three associations met for a day and a half in February 2009 and filed their comments with the federal court May 4. "We've already gone on record with the court," she says. Commenting on the formation of the alliance, she added, "ALA is delighted that others are joining the debate. We encourage everyone who cares about the issues raised by the proposed settlement to weigh in with the court."
The Urban Libraries Council (ULC) is the nonprofit membership organization serving the major public libraries located in urban and metropolitan areas throughout the U.S. On Aug. 19, the ULC submitted a statement urging the court to require that the parties involved "address the issues raised in this document before approving the proposed settlement." The ULC concerns relate to access (one terminal per public library building is "admirable but not workable), reader privacy, printing charges, and monopoly issues. CEO Susan Benton says the alliance certainly sounds of interest for the council's concerns, but the ULC had not been approached about joining.
Given Google's dominance and the ongoing rivalries, the unlikely allies Amazon, Microsoft, and Yahoo! likely thought it prudent to be aligned with this group, fighting a common enemy. Legal blogger J. Alex Dalessio pondered this on the LexisNexis blog (www.lexisnexis.com/Community/ideas/blogs/lexisnexis/archive/2009/08/24/ding.aspx):
What the Alliance really wants is to block Google from getting its hands on even more content. Knowing that publishing is moving online, this is a tremendous threat for companies like Amazon, who even with the Kindle may need some kind of control over content and distribution to really make it work. However, I am not sure exactly why Microsoft and Yahoo are in the mix here, beyond their likely concerns that a deeper richer Google is a larger more robust threat to their burgeoning hopes for Bing.
Drew Herdener, director of communications for Amazon, sent me this statement via email:
Amazon supports authors, publishers, and libraries in opposing the Google Books Settlement in order [to] ensure that any mass book digitization and publishing effort approved by Congress or the courts establishes an open and competitive level playing field for the benefit of consumers and all stakeholders rather than a few commercial interests.
And Jack Evans, a Microsoft representative, emailed this comment:
While we support the effort to expand access to knowledge online through the digitization of books, we share many of the concerns that have been expressed by a growing number of parties about the harmful impact this proposed settlement will have on consumers, libraries, academic institutions, online services, authors, and publishers.
In an interesting twist, Open Book Alliance co-chair Reback is in the Litigation Practice Group of Carr & Ferrell. Reback specializes in intellectual property and trade regulation litigation and counseling. He has represented many of Silicon Valley's best known companies in high profile litigation and transactions. He is generally credited with spearheading the efforts leading to the U.S. government's antitrust prosecution of Microsoft.
In Defense of Google's Efforts
While the rhetoric is definitely heated whenever these issues are discussed, many question those who throw the book at Google for its ambitious book digitization project. Many libraries, universities, authors, and groups have endorsed the project and the settlement, and stress the benefits of increased access. What's so bad about digitizing millions of books and giving them away free? Why the Google bashing? Asked for a response to the announcement, a spokesperson from Google provided the following statement. "This sounds like the Sour Grapes Alliance. The Google Books settlement is injecting more competition into the digital books space, so it's understandable why our competitors might fight hard to prevent more competition."
Industry observer Barbara Quint claims that some of the allegations against the Google Book settlement seem almost comical: " [T]hey raise the dire threat that Google's monopoly prices for the service would end up creating a system of haves and have-nots in our nation's education system-unlike, I assume, the current state of parity between every community college library and Harvard's. Actually, one of the main benefits of the post-settlement services would lie in the equality it would create, the digital divides it would eliminate, as any subscribing library would have the equivalent of a giant research library's collection and a collection available round-the-clock, 24/7."
Janice Lachance, CEO of the SLA, emphasized that the group was not necessarily opposed to the settlement. She says, "We might decide this is a wonderful thing but we don't know everything at this point. We want the details. We've gotten very polite answers [from Google] but they're inconclusive answers." She stressed that the concerns are broad-they go beyond libraries and touch on important public policy issues. There will be broader impacts on business and the economy, "and this is where our members work." She added, "We look forward to the day when a completely electronic, searchable, and universally accessible repository of digital books brings untold value and knowledge to individuals, organizations, and libraries. In the meantime, we are greatly concerned about Google's efforts here, and we believe that the U.S. Department of Justice (DOJ) must look into the full ramifications of this settlement on issues of copyright, access, affordability, and privacy."
NewsLink Spotlight, "Update on the Google Book Settlement," by Paula J. Hane, July 2, 2009:
"The Audacity of the Google Book Search Settlement," by copyright expert Pamela Samuelson:
May 4 filing with the federal court by ALA, ACRL, and ARL:
Letter July 30, 2009 to DOJ from ALA, ACRL, and ARL:
Google Book Settlement informational site, American Library Association, Office of Information Technology Policy:
Statement from the Urban Libraries Council to the Court:
Commentary by financial columnist Mark Gimein, "In Defense of Google Books":
Statement by Paul N. Courant, Dean of Libraries at the University of Michigan, Google Agreement will extend U-M libraries' accessibility:
Google Book Settlement site: http://books.google.com/booksrightsholders/
The Public Index (The Public Index is a site to study and discuss the proposed Google Book Search settlement. The Public Index is a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School. Note: The Public Index is made possible by a grant from Microsoft.): http://thepublicindex.org
"Unsettled: The PW Survey on the Google Book Settlement," A PW readership survey examines the Google Book Search Settlement, by Andrew Richard Albanese, Publishers Weekly, /24/2009:
Free seminar: EDUCAUSE Live! Sept. 2, 2009 1:00 p.m. ET (12:00 p.m. CT, 11:00 a.m. MT, 10:00 a.m. PT), "The Google Book Scanning Project: Issues and Updates," with speakers Jonathan Band (Counsel, Library Copyright Alliance) and Dan Clancy (engineering director, Google Book Search).