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The Google Book Search Settlement: ‘The Devil’s in the Details’
by
Posted On November 3, 2008


For the last 3 years, the Google Book Search Library Project has operated under the shadow of lawsuits filed by the Authors Guild and several members in a class action suit and by the Association of American Publishers (AAP) and five of its members. The suits focused on the in-copyright books contributed by a handful of Google’s library partners—but those partners who contributed the bulk of the mass digitization collection. Now, the involved parties have come to a settlement agreement, which—if approved by the U.S. District Court for the Southern District of New York and not overturned on appeal—would resolve many of the thorny issues and release masses of book content to U.S.-based web users. Most of the interested parties expect the settlement approval to happen fairly quickly, probably by June 2009.

At present, the Google Book Search collection numbers around 7 million digitized books. According to Daniel J. Clancy, engineering director for Google Book Search, that total encompasses more than 1 million books supplied by Google’s more than 20,000 publisher partners with the rest coming from its library partners. Clancy broke the remaining 6 million books down as more than 1 million public domain and 4–5 million in-copyright books "with the vast majority out-of-print."

If the settlement agreement goes through as planned, the public domain content would continue to be treated as it is today. Users would be able to download items or read them online at will. However, the use of in-copyright material would change dramatically. Preview views, similar to the blocks of contextual displays offered for much of the publisher partner content and encompassing as much as 10%–20% of content or 4–5 page displays, would become the default display for books in-copyright but out-of-print. For many librarians and authors, this would amount to a practical solution to the problem of orphan works currently going through solutions via Congressional legislation. Publisher or author rightsholders would have the option to withdraw books from preview mode. Books that were in-copyright but in-print could receive the same preview treatment, but only if the publisher or author rightsholder approved. In other words, choosing to opt-out can stop an orphan’s chance to shine, but choosing to opt-in can get in-print items on stage.

But here’s the pot of the gold at the end of the rainbow: Online access to the full text of the in-copyright, out-of print books will become available under institutional subscriptions. No downloading. Just online at Google. There are exceptions to coverage specified in the settlement agreement, e.g., periodicals, and rightsholders can remove items if they choose. But this settlement would open up an epic quantity of curated book content, i.e., items selected by knowledgeable research librarians who are building world-class research collections. Institutional subscriptions would operate in "pricing bands" based on issues such as the size of the user group. According to Clancy, "The amount an institution pays per student, for example, would vary depending on the type of institution. For example, Stanford would pay more than Foothill Community College, but it would be open to public libraries, corporations, K–12, etc." Clancy waxed somewhat lyrical over the chance for this change "to level the playing field" and to reach the average person with a serious interest in whatever subject for whatever reason. Google has retained the right to create other subsets of the file, e.g., discipline-defined sets, which may involve different institutional subscription fees.

But that’s not all. Under the agreement, public libraries would receive limited access to the full text of in-copyright, out-of-print books (plus public domain, of course) for free. The public library would have to dedicate a computer to the Google Book Search content. Google would then supply the software to reach and navigate the collection at no charge. According to Adam M. Smith, director of product management for Google Book Search, the agreement specifies that the offer extends to each library building; branches could have their own dedicated computers.

Additional benefits include generous provisions for anyone using the Google Book Search content to serve the disabled. It also provides support for creating "research corpus" subsets of the collection for sophisticated computer analysis and research.

But What About the Authors and Publishers?

The agreement describes a number of revenue models by which rightsholders would receive as much as 100% to as little as 35% of monies collected by Google, from institutional subscriptions, advertising, book sales, etc. Flat payments for digitized content and caps for revenue gathering are included in the complex arrangements. In the case of in-copyright, out-of-print material, copyrights may have reverted to the authors, though publishers may debate the issue. Rightsholders, both publishers and authors, would also have the option to sell online access to their in-copyright books separately, including in-copyright, in-print books.

The settlement of disputes in this area will go to a new Book Rights Registry created by the settlement and funded by $45 million of the $125 million settlement fund. The registry should start operation in January 2009, even before the court has approved the settlement agreement, according to Clancy. Allan R. Adler, vice president for legal and government affairs for AAP, said that people "can start filing claims now. The Registry’s governing board has split membership between author and publisher representatives. The claims process has elaborate procedures for cases of conflicting claims. We spent a lot of time and effort to come to everyone’s satisfaction."

Treat or Trick

One set of players with very specific interests are the library partners currently contributing in-copyright content to Google. Four such partners—the University of Michigan, the University of California, Stanford, and the University of Wisconsin–Madison—issued a press release praising the settlement—but somewhat cautiously. In conversations, both Daniel Greenstein, vice provost of the University of California, and John P. Wilkin, associate university librarian for Library Information Technology and Technical and Access Services at the University of Michigan, indicated that they would have liked it if Google could have pursued its "fair use" argument to a case law conclusion. Both Greenstein and Wilkin understood why Google and its opponents had decided to settle however, and they looked forward to the ensuing benefits, particularly as decisions unfavorable to Google could have put the library partners in legal danger too, even allowing for the indemnification clauses that Google wrote into its contracts. As Wilkin put it, "There are things we got and things we gave in this process, but hissy fits wouldn’t have helped. We could have stood on a matter of principle and said we would not sign this atrocity, but then we’d have the old agreement. Google could stop giving us the in-copyright stuff. We wouldn’t be allowed to use it. Instead, we’ve done all the work of nailing down the amendments." Both Wilkin and Greenstein expected that addenda would be added to the library partner agreements once a judge signs off on the basic settlement agreement.

However, not everyone proved as sanguine. On Halloween, 4 days after the Google Book Search settlement was announced, Harvard University, one of the earliest Google Book Search Library Partners, said it would not participate in scanning copyright materials, something it had apparently planned to do once the outcome of the lawsuits clarified the issue. At present, Harvard was only contributing out-of-copyright, out-of-print content. Harvard had thought Google’s handling of in-copyright content was legal.

According to a letter by university library director Robert C. Darnton, "The settlement provides no assurance that the prices charged for access will be reasonable, especially since the subscription services will have no real competitors." He also mentioned that "the scope of access to the digitized books is in various ways both limited and uncertain." The letter also pointed to quality issues. The settlement agreement does not cover photographs, illustrations, or other images embedded in books. Google has blanked out such pages in many cases.

Despite these concerns, a Harvard spokesman left the door open to further negotiations with Google and rightsholders.

Realistically, most experts in the area expected a settlement rather than a march through the appellate courts. For example, the Tasini case settlement hammered out with the publishers and the National Writers Guild years after the writers won the Tasini case in the Supreme Court was overturned. The AAP’s Adler explained, "Frankly, we had very few illusions of what we would get from litigation. It would be little more than leverage. It makes sense to come up with a business deal. Some people feel Google betrayed them by not continuing to fight for fair use. Who knows what would have been the outcome of litigation? If we won or if they won, it would go to the Supreme Court. If it got a Supreme Court ruling, the likelihood is that it would have been a split ruling and a narrow ruling applicable only to the facts before it. So then both sides try to spin the ruling to their advantage and finally—more litigation. This settlement provides more benefits to the stakeholders than would have resulted from litigation."

A Settlement Study Guide

Primary Documents

For a complete set of the 15 documents—the 141-page settlement agreement and the 15 attachments—go to http://books.google.com/booksrightsholders/agreement-contents.html and download a zipped folder. The most useful and readable document, as advised by Adler, is Attachment I, the Notice of Class Action Settlement. Intended for use in alerting affected and interested parties, it is both thorough (39 pages) and written in lay language. The 158 pages of attachments cover the following issues: 

  • Attachment A, Author-Publisher Procedures—Describes how the registry will judge different classes of books, disperse funds, and resolve disputes between authors and publishers as rightsholder claimants 
  • Attachment B1, Library Registry Agreement (Fully Participating) 
  • Attachment B2, Library Registry Agreement (Cooperating) 
  • Attachment B3, Library Registry Agreement (Public Domain)—Describes conditions Google Book Search Library Partners must meet to comply fully with the settlement, in particular accepting the decisions of the registry; categorizes libraries as Fully Participating, Cooperating, or Public Domain only contributors 
  • Attachment C, Plan of Allocation—Who gets the money? How much? When? 
  • Attachment D, Security Standard—Protection requirements for all parties 
  • Attachment E, Safe Harbor Public Domain Process—Procedures Google follows to determine public domain status 
  • Attachment F, Preview Uses—Exclusions from full Preview mode (drama and fiction anthologies, poetry collections, short stories); different Preview definitions (dictionaries, drug reference guides, encyclopedias, price buyers guides, quotation collections, test prep/certification guides, thesauri) 
  • Attachment G, Approved Libraries—List of Google Book Search Library Partners in the U.S. 
  • Attachment H, [Proposed] Order Granting Preliminary Settlement Approval—Court document 
  • Attachment I, Notice of Class Action Settlement—Complete explanation for rightsholders of the background of the case and what the settlement would do 
  • Attachment J, Summary Notice of Class Action Settlement—Brief (one-page) highlights of settlement for affected parties in lay language 
  • Attachment K, Paid Media Schedule—Complete list of national and international print media read by authors and publishers where announcement of settlement will appear 
  • Attachment L, [Proposed] Final Judgment and Order of Dismissal 
  • Attachment M, Settle Agreement Between Publishers and Google—Court documents

Documentation Provided by Parties

Google 

Association of American Publishers (AAP) 

Authors Guild 


Barbara Quint is contributing editor for NewsBreaks, senior editor of Online Searcher, and a columnist for Information Today.

Email Barbara Quint
Related Articles

5/26/2009Michigan Libraries Support Google Book Search Settlement Plans
7/2/2009Update on the Google Book Settlement
11/23/2009Here We Go Again! The Revised Google Book Settlement
3/31/2011Google Book Settlement Rejected: What’s Next?
12/19/2011Class Action Filed in Google Books Case


Comments Add A Comment
Posted By PAULA HANE11/13/2008 4:59:25 PM

The Association of Research Libraries (ARL) and the American Library Association (ALA) have released "A Guide for the Perplexed: Libraries and the Google Library Project Settlement," by Jonathan Band, JD.

The guide is designed to help the library community better understand the terms and conditions of the recent settlement agreement between Google, the Authors Guild, and the Association of American Publishers concerning Google's scanning of copyrighted works. Band notes that the settlement is extremely complex and presents significant challenges and opportunities to libraries. The guide outlines and simplifies the settlement's provisions, with special emphasis on the provisions that apply directly to libraries.

"A Guide for the Perplexed: Libraries and the Google Library Project Settlement" and related materials are available from the ARL Web site at www.arl.org/pp/ppcopyright/google.
Posted By George Riddick11/3/2008 1:32:35 PM

EXPOSED - the fallacies of Google's universal search

Bravo! Congratulations authors and book publishers. I applaud you for holding your ground.

Ten (10) years ago this week, President Bill Clinton signed the revolutionary Digital Millennium Copyright Act (DMCA) into law. Since then, everything in the copyright and technology industries in this country has changed ... and not all for the better, as you might have expected. You see, in their rush to bring our laws into sync with the international community, Congress failed to write a succinct and non-ambiguous bill ... and we need a succinct and non-ambiguous bill very badly. Believe me, I know. My small graphic arts content development company, Imageline, was in the middle of a $60 million federal lawsuit regarding copyright infringement at the exact same time.

The creative copyright defense lawyers in this country have all made their fortune over the past decade, defending and confusing people based on these DMCA ambiguities in copyright law. Maybe that was the Congressional plan all along. After all, most of the folks up in Washington are lawyers and judges themselves, now, also, aren't they?

Well, the rocket scientists, investment bankers, copyright lawyers, and software engineers in Redmond and Mountain View are apparently a hell of lot smarter than the politicians ... and way more devious. We learned that lesson the hard way, as well.

You see, web-based search, aka Adwords, was just about to start its meteoric rise to top of the world in the late 1990s. And the Google engineers were the only folks who had a clue how to make all of this work. Google began to dominate web-based search, went public, and set out on the path to organize and conquer the world.

I love web-based word search and even maintained an open mind as to the value proposition it creates for our economy as a whole. Plus, it was fun in the late 90's to see several U.S.-based companies still dominant on the global stage and spreading their technologies rapidly around the world. Perhaps for the first time, the gigantic digital divide we have in this world, would start to narrow? Pretty naive thinking now that I think about it.

But Google, and the companies that learned not to innovate, but to simply mimic the folks in Mountain View at every turn, apparently had another plan. They would expand "search" to images, video, published books, medical records, private homes, x-rays, and everything else on the planet ... and in outer space, for that matter. And now that they were so popular and successful, they wouldn't even bother to ask the disorganized and clueless creative people who own all of the copyrights for permission. Google set out to continue its Internet search and advertising dominance into image search, video search, book search, medical search, and other universal searches, including every other aspect of our lives, both public and private.

And no one had the guts to even question the Googlites, let alone try to stop them. All Microsoft, Yahoo, AOL, and Ask.com could do was either beg Google to work with them or put teams of engineers in place to try and replicate the various Google search platforms almost identically. In other words, if stealing from people, promoting illegal products and services, and walking off the cliff, was good enough for mighty Google, then doing all of these things and walking off the cliff was fine with all the rest of them, as well. Really pretty disgusting for what had previously been viewed as an innovative proud industry, with good business practices and ethics, don't you think?

And then Baidu (China), Yandex (Russia), Daum (Korea), Lycos (Europe), Rediff (India), and other international search engine companies decided they wanted a piece of the action, as well. 'Image search', and practically everything else search, would become a common tool throughout the Internet world. After all, images are the world's common denominator, aren't they? Copyright holders be damned.

In the early days, most copyright holders caved. They were afraid of Google and new technologies they did not understand. Federal judges, who didn't really have a clue what was going on, allowed Google's massive army of lawyers to convince them that the DMCA, which was originally designed to protect copyright owners, was actually intended by Congress to provide a safe haven for technology companies who wanted to infringe, and to do anything they pleased with other people's property. Even if they made billions of dollars by doing so, they could still claim that their pirate ships could sail smoothly over the rough cyber seas and then pull safely into 'safe harbors' authorized by the DMCA. NONSENSE! This has been, and continues to be, one of the grandest corporate scams and get-rich-quick scandals this country has ever witnessed.

Unfortunately, the technology scams gained even more traction, and a more extended life, once the financial industry scandals up on Wall Street, and in the mortgage lending industries, started to surface and take center stage. Perhaps now it's time to held these technologhy cmpnaies accountable for their unlawful and unethical actions, as well.

So, here we are today. Four (4) major good news events for copyright owners have just recently occurred. Could it mean the end of Google's dominant evil ways? I sure hope so. And so do millions and millions of people who create most of our jobs and produce the vast majority of our copyrighted works in this country ... our small businesses and creative individuals ... our illustrators, designers, photographers, videographers, film producers, musicians, book publishers, cartoonists, journalists, graphic programmers, comic strip artists, poets, digitizers, and animators ... you get the picture. All of the people that the Google, Microsoft, and Yahoo executives, engineers, lawyers, and finance people hide back in the corner on the 18th floor.

Here is some of the recent good news for small businesses and copyright owners:

1. This week's news that Google has to pay book publishers and authors $125 million dollars and cease its plan to digitize all books, whether the copyright owners wanted them to or not. Microsoft apparently has already abandoned its Google clone in this arena. Yahoo supports a more open industry plan.

2. Courts in Germany have followed the wisdom of courts in Belgium and France and ruled against "Google Image Search" procedures, in a huge ruling that will hopefully set the new precedent on the global stage. Google can no longer 'willfully infringe for profit' says the court.

3. Courts in China have actually ruled against its own search engine giant, Baidu, as well as Yahoo China, and found their "image search" features pointing consumers to obviously infringing web sites were, indeed, unlawful ... even in China who leads the world in piracy these days.

4. The PRO-IP Act has been signed into law (October 13, 2008) here in the U.S., placing a spotlight on this kind of crime and giving both federal, state, and local authorites far more resources to investigate and prosecute intellectual property crimes in this country, and in the countries we trade with as well. Extended jail times and financial penalties should get everyone's attention, even if out-gunned plaintiffs attorneys have not been able to do so in the past.

Courts in the United States have fallen behind the rest of the world in this area, and it is shameful, indeed, since the vast majority of the world's copyrighted works are still produced here in America. But the copyright enforcement pendulum has finally started to swing the other way ... towards the hard working people who deserve to have their copyrighted works protected by the government in the country they live in. How can anyone debate that argument with a straight face. Google executives and attorneys apparently don't know how to make a straight face anymore, I'm afraid. They all appear to be crooked, or at least hypocritical, when it comes to the protection of other people's copyrights. Isn't Google's now famous CEO an attorney as well?

So, "bravo", again to book publishers and authors ... you held your ground. You did us all proud. You stood up to mighty Google. And all of the rest of us in the copyright industries are thrilled that you did so. THANK YOU!

Your publicly recognized settlement is a step in the right direction for all copyright holders in the U.S. from my point of view. And in other countries, as well. I, for one, believe the days of Google executives, investment bankers, software engineers, copyright lawyers, and rocket scientists making up their own self-serving rules of conduct and codes of ethics in this country are finally over. How there ever was a serious debate as to the legality of Google unilaterally deciding it could make illegal copies of any copyrighted material they chose to without the copyright owners permission is beyond me.

I say we have all had enough of this corporate greed, corruption, and scandal. How about you? In fact, I believe this is yet another symptom of the kind of crooked, top-down, corporate society we have lived under here in the United States for the past 8-10 years. Enough is enough.

Don't you think it is quite a coincidence that during this exact same time period Google accumulated hundreds of billions of dollars, while never really inventing or creating much of anything new and original themselves? You could, too, if you had virtually no 'costs of goods sold'.

Apparently, when you set your own rules and start to feel so powerful that you can ignore the laws of the land, this is what happens, folks. Ask George Bush and Dick Chaney. It's that pure and simple. How many Wall Street bailouts will we need to see before the rest of us open up our eyes?

'Book search' is just tip of the iceberg where the exposure of the true Google is concerned.. From what I can tell, 'image search' is emerging as perhaps the final Waterloo for mighty Google. Why? Because Google infringes more copyrighted visual material through its image and video search operations than virtually all other technology industry players combined. Hundreds of millions of copyright violations each and every month. An no one has thus far had the guts to stop them. No competitor ... no government agencies ... no judges ... no judiciary committees ... no Congressional hearings ... no copyright industry boycotts ... no nothing! Except perhaps for Viacom, who filed a billion dollar a lawsuit against YouTube/Google well over a year ago.

But an image and/or video search engine class action lawsuit, and one that is easily 10-15 times larger than the book search suit that just settled out of court, is imminent. I know of about a dozen companies, mine included, who are busy gathering documented evidence to help bring on such a suit. Hopefully, before Google wipes out half of the legitimate copyright owners in this country as it tries to do to digital photographers, illustrators, designers, digitizers, graphic programmers, and animators what it tried to do to authors and book publishers, as well.

"We have the right to copy and organize all of your digital images whether you want us to or not", says Google either directly or through inference.

Wait a second. My little company, Imageline, invented the software category of digital graphic arts content (clip art illustrations, design templates, digital logos, conceptual cartoons, and animations) back in in early 1980s when the Google founders were still in grade school. We do not want Google to organize our proprietary copyrighted images. They are already organized. And we don't want Google making copies of our digital artwork, either. That's a direct violation of the copyright laws in this country, and the rules under which we agreed to develop and produce these works in the first place long ago. All of our copyrighted works have been registered with the U.S. Copyright Office in the exact way we were directed by Copyright Office officials.

Keep your corrupt hands off of our images, Google. Go play with your own photos, maps, or whatever it is that you produce and actually own.

In my view, the entire copyright industry, and the populous, in general, has become sick and tired of the arrogance, hypocrisy, and greed of Google. In spite of their "do no evil" mantra, Google has actually grown to compete with Microsoft for the title of the 'Supreme Evil Empire', in my opinion.

I, for one, am sick and tired of Google teaching my children that stealing is okay in the new digital age. No, it's not, Google! You are misguided and no one wants you to use the money provided by public shareholders and reputable advertsiers to copy other people's copyrighted works, buy more 757s, park them in your own back yard, explore outer space, give each other massages, or organize the world's information anymore, regardless of what your rocket scientists have to say.

The book publishers' victory is just the tip of one of the most toxic icebergs this country has ever seen. Wait and see.

Thanks for listening.

George Riddick
Chairman/CEO
Imageline, Inc.
griddick@imageline2.com

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