The Google Book Search Settlement: ‘The Devil’s in the Details’

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

http://books.google.com/booksrightsholders —Official Settlement Page
http://books.google.com/booksrightsholders/agreement-contents.html —Official documents
http://books.google.com/googlebooks/agreement/press.html —Includes links to Executive Summary (PDF) and Libraries and This Agreement (PDF)

Association of American Publishers (AAP)

http://publishers.org/main/copyright/google/faq.htm —Google, AAP, Authors Guild: Joint Public FAQ

Authors Guild

www.authorsguild.org/advocacy/articles/settlement-resources.html —Authors Guild v. Google Settlement Resources Page