A year ago, Google (www.google.com) and its two major litigants, The Authors Guild (www.authorsguild.org) and the Association of American Publishers (www.publishers.org) announced they had settled their differences and filed a settlement agreement with the U.S. District Court of the Southern District of New York. Since then, a flurry of amicus curiae briefs have been filed with the court from parties representing a wide range of interests-most of them negative or at least cautionary-and a Department of Justice (DOJ) Statement of Interest filed Sept. 18, 2009, focused on competition, class action, and copyright worries. The general press-The New York Times, The Wall Street Journal, The Economist, etc.-as well as trade press such as Library Journal and Publishers Weekly and blogs of all kinds and descriptions-have followed developments closely. So, last week, when Google and its someday-soon ex-litigants filed a revised settlement agreement with the court, the coverage proved equally feverish. However, closer examination of the revised settlement seems to reveal that the changes from the original settlement are not as major as some coverage has indicated. Instead, the changes are meant more to clarify and/or render explicit policies, procedures, product features, and rightsholder options already in place.
Once the settlement is finally settled, a world of content could become available to web users beyond what Google Book Search already provides. Millions of books from Google's Library Partners-including in-copyright/out of print works-would become available for accessing through institutional subscriptions and for free to dedicated terminals in public libraries. The Preview mode would replace the snippets for most of the content, enabling users to scan multiple pages.
However, the amended settlement agreement would change the content significantly. Works not published in the U.S. must have been "published by January 5, 2009 and either were registered with the U.S. Copyright Office by that date or their place of publication was in Canada, the United Kingdom (‘UK'), or Australia." Dan Clancy, engineering director for Google Book Search, confirmed reports that the removal of foreign works could reduce the available content in the post-settlement database by half. "Yes," said Clancy, "I understand that the international holdings in U.S. libraries is around 50%." However, the foreign books will still reside in the Google Books collection, and Google will continue to add them through its ongoing digitization efforts, according to Clancy. Though users will not have access to the full text or to the extended Preview mode for the bulk of foreign in-copyright works, they will still be able to search them, identify relevant items, and read the snippets. In this regard, one should remember that, independent of the settlement agreement, Google still defends its fair use rights to index content wherever it finds it.
The general coverage of the revised agreement has mostly treated it as a Google story. One Wall Street Journal headline ("Authors Guild Cheers Modified Book Settlement [Which Isn't Even Out Yet]") seemed to express some surprise at the organization's awareness. However, settlement agreements must deal with the interests and the involvement of all parties. The original agreement established a Books Rights Registry with a board of representatives from the author and publisher communities to handle most operational details, particularly those affecting the use of revenue models and dispersal of funds to class members. For example, Clancy pointed to the issue of how many free Google Book Search terminals public libraries could get. The number is up to the registry and has always been, although the revised agreement now makes that fact explicit. Under the revision, the board will be expanded to include author and publisher representatives from Australia, Canada, and the U.K.
However, concern that the registry might not offer the best approach to serving the interests of rightsholders for orphan works or unclaimed works has led to the establishment of a new role, the Unclaimed Works "fiduciary." Clancy described this role as "an independent representative. It can't be someone in the publishing industry or an author. They must have no financial interest or conflict. It's their job to look out for the interests of these rightsholders." The registry will assign funds to help track down the rightsholders for these unclaimed and orphan works.
The revision also adds three potential new revenue models-print on demand, file download (formerly PDF download), and consumer subscription. These three new options join the institutional subscription model in the original settlement agreement. The revised agreement also goes into details on who gets the money when it starts coming in.
Speaking of money, some of the library-oriented coverage bemoaned the absence of details on pricing. Clancy stated that they had "thought about it a lot in the negotiation. We spent a lot of time on it, but we're going to wait until we've got authorization. After all, right now, we don't even know the number of books we would have available." As to selling books directly to consumers, he said, "We have to figure what we can and can't sell before we start selling it. We don't have to solve that problem until we start to sell books." However, he was certain that the sale of a single book to a consumer would not be an option a library or other institution could use since it would not allow for multiple users.
So What's Next?
Judge Denny Chin of the U.S. District Court of the Southern District of New York has set Feb. 18, 2010, to hear arguments as to whether the settlement agreement is "fair, reasonable, adequate" and whether to certify the class and approve the agreement. Supplemental notices about the agreement will start going out Dec. 14, 2009, with a Jan. 28, 2010, deadline for objections to the amended agreement. As far as future scheduling for rightsholders is concerned, the deadline to claim Books and Inserts for Cash Payments is now March 31, 2011. The deadline for instructing Google to remove books is now March 9, 2012, but the Removal deadline for digital copies held by Google's Library partners is still April 5, 2011.
According to Clancy, the company plans to launch "Google editions" for consumer purchase in mid-2010. He expects it to take a few months after the fairness hearing for the judge to rule, but "then we still face the possibility of appeal. So we're not holding our breath on final approval."
And, of course, further lawsuits could ensue. The Supplemental Notice Attachment N even politely informs "Rightsholders Who Are Not Included in the Amended Settlement Class," (foreign authors primarily), that "You retain all rights to sue Google for its digitization and use of your copyrighted material without your permission. If you wish to sue Google for such digitization and use, you must do so in a separate lawsuit." Though it also suggests authors join the "class" by checking out Google's offers at http://books.google.com/books-partner-options.
Nor does the agreement cover periodicals; it only covers books. Some periodicals have drifted into the Google Books collection due to the fact that many Library Partners bind and shelve past issues of periodicals with their book collections, and Google's digitizers didn't slow down as they swept through the shelves. Clancy confirmed they were legally vulnerable in this area. However, he also pointed out that Google offers to scan periodicals to any journal provider "who wants us to scan their back files and offer them open access online. Most of the participants are smaller journal publishers and their content goes into both Google Books and Google Scholar."
But let's assume that sometime before the second decade of the third millennium ends that the settlement actually settles. I asked Clancy how this settlement could accommodate change; for example, changes in attitudes by rightsholders or the impact of market forces. He responded, "Rightsholders can act through direct agreement with us for whatever they want. If they come forward wanting to authorize changes to do additional agreements, we have flexibility. For example, some rightsholders want to limit restrictions on the number of pages printed with one command, on copying and pasting, or maybe using a Creative Commons license. Even if they want to distribute it for free, we can set the price at zero. The revisions to the settlement agreement make this more explicit."
One area for future development seems particularly important, namely finding a way to bring foreign books into the service. Clancy points out, "The settlement doesn't let us sell content in those countries, but we are offering direct partnerships with rightsholders for international partnerships. We can offer the service but not through the settlement." Google has many agreements in place with foreign libraries already, but only for public domain publications, according to Clancy. "That's not affected by the agreement. Individual rightsholders and organizations representing them can explicitly authorise us worldwide."
For More Information
For coverage of the original settlement, check out my Nov. 3, 2008, NewsBreak, "The Google Book Search Settlement: ‘The Devil's in the Details,'" http://newsbreaks.infotoday.com/NewsBreaks/The-Google-Book-Search-Settlement-The-Devils-in-the-Details-51429.asp.
Then, see Paula Hane's July 2, 2009, NewsLink Spotlight, "Update on the Google Book Settlement," http://newsbreaks.infotoday.com/Spotlight/Update-on-the-Google-Book-Settlement-54998.asp.
For coverage of the furor of reactions, check out Paula Hane's Aug. 27, 2009, NewsBreak, "Anti Google Book Settlement Organizations Band Together in Open Book Alliance," http://newsbreaks.infotoday.com/NewsBreaks/Anti-Google-Book-Settlement-Organizations-Band-Together-in-Open-Book-Alliance-55861.asp.
If you want to study the revised settlement agreement yourself, I recommend you start with Attachment N, a Supplemental Notice to the Amended Settlement Agreement identifying and describing changes from the original agreement, which is available, along with the other documents, at www.googlebooksettlement.com.
Or you might look at a version redlining the differences with the original agreement, http://thepublicindex.org/docs/amended_settlement/amended_settlement_redline.pdf.
