In Google Book Search Settlement, Readers Lose

10/31/08Follow @wroush

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have the vision and the expertise to bring out the latent value in the world’s common heritage of information. More generally, I continue to be astonished by the hostility so many writers and publishers display toward Google, which, to my mind, is the best thing to happen to intellectuals since the First Amendment.

Apparently concluding that a compromise would be preferable to a risky, extended, and costly trial, Google and its opponents negotiated the settlement proposed this week. It is an exhaustive, labyrinthine document (and one you are free to download, seeing as government documents aren’t subject to copyright). The main provisions are these: The Authors Guild, the AAP, the publishing houses, and all members of the class represented in the action will drop the suit and waive all claims against Google. Google admits no wrongdoing, but will make payments totaling $125 million, including $45 million for the owners of the copyrights on the books it has already scanned—or about $60 per book, depending one how many rightsholders file claims.

Google is authorized under the settlement to continue the library scanning project. What’s more, it can sell access to the full text of the books it scans, in the form of subscriptions that will be available to institutions such as libraries and corporations, and in the form of individual books that consumers can download or read online. But the bulk of the revenues Google collects—63 percent, to be exact—will go to those books’ copyright holders. Google will pay $34.5 million to set up a new, independent Book Rights Registry to track the revenues and issue the payments. If they wish, copyright owners can choose to exclude their books from any or all these arrangements. (The remaining $45.5 million of the settlement payment will apparently go to the plaintiffs’ attorneys, though I couldn’t find this spelled out anywhere in the document.)

The parties to the settlement were anxious to project harmony and sunlight, repeatedly calling the agreement a win-win. “This historic settlement is a win for everyone,” Richard Sarnoff, chair of the AAP, said in a joint press release. “The agreement creates an innovative framework for the use of copyrighted material in a rapidly digitizing world, serves readers by enabling broader access to a huge trove of hard-to-find books, and benefits the publishing community by establishing an attractive commercial model that offers both control and choice to the rightsholder.”

“While this agreement is a real win-win for all of us, the real victors are all the readers,” chimed in Google co-founder Sergey Brin. “The tremendous wealth of knowledge that lies within the books of the world will now be at their fingertips.”

Perhaps—but at what cost? While the settlement does give Google the right to offer full access to the scanned books, the problem is that it’s likely to be at sky-high prices. The agreement provides two mechanisms for setting the cost of online access to books: either rightsholders can name their own price, or Google will automatically set a price between $1.99 and $29.99 using an algorithm designed, in the words of the agreement, to “maximize revenue for each rightsholder.” Neither option sounds very palatable to me.

Indeed, pricing is apparently one of the major issues that has kept several of the libraries that were initially part of the Google Library Project from endorsing the settlement. Harvard University, for example, opted this week to cut off Google’s access to its in-copyright books (though it may continue to allow the scanning of its public domain books). “As we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher education community and by patrons of public libraries,” Harvard University Library director Robert Darnton wrote this week in a letter to library staff quoted by the Harvard Crimson. Darnton continued: “The settlement provides no assurance that the prices charged for access will be reasonable, especially since the subscription services will have no real competitors [and] the scope of access to the digitized books is in various ways both limited and uncertain.”

And there’s another provision of the settlement that spells out, to me, just how parsimonious the plaintiffs’ attitude really is. Under the agreement, the authors and publishers give Google permission to provide every public library in the United States with free access to the books database. That sounds great, on the surface. As Authors Guild president Roy Blount Jr. put it in a message to members about the settlement, “Readers wanting to view books online in their entirety for free need only reacquaint themselves with their participating local public library: every public library building is entitled to a free, view-only license to the collection.”

But the devil, again, is in the details. If you read the agreement, you’ll see that it restricts each public library to exactly one Google terminal. Tens of millions of books online—but at any given moment, no more than 16,543 people are allowed to read them without paying. (That’s how many public libraries and branches there are in the United States, according to the American Library Association—one for every 18,500 Americans.)

That, to me, about sums it up. Even in this digital age, the organizations representing authors and publishers are saying that free access to out-of-print books should be restricted to people who can a) make the physical journey to a library and b) beat their neighbors to the computer room.

There’s something fundamentally medieval about the philosophy that seems to have guided the plaintiffs through the entire Google lawsuit: namely, that profits can only be protected by imposing scarcity. One gets the sense that if they could, the authors and publishers who sued Google would do away with libraries altogether—and that the bloody Internet would be next on their list. Fie on Google, fie!

Update, January 30, 2009: The parties to the Google Book Search settlement have begun the process of notifying authors and publishers about their rights and options under the settlement. I got a note from one of the firms helping to administer the settlement asking me to update this post with a link to the court-approved website where authors can find claim forms and the like. So: http://www.googlebooksettlement.com.

Update, April 18, 2009: O’Reilly Radar has published an excellent blog post by guest blogger Pamela Samuelson, a professor of law and information at the University of California, Berkeley, and a director of the Berkeley Center for Law & Technology, analyzing the Google Book Search settlement. She calls the proposed settlement “galling” and “worrisome” and points out that by acceding to the Author’s Guild and the AAP’s claims to represent entire classes of authors and publishers, Google has gained a monopoly on digital distribution of orphan works with “considerable freedom to set prices and terms”—a monopoly which would be very difficult for any other party, even Amazon or Microsoft, to challenge. Samuelson concludes: “The Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a major restructuring of the book industry’s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved as is.” Cory Doctorow at BoingBoing has a smart commentary on Samuelson’s post.

For a full list of my columns, check out the World Wide Wade Archive. You can also subscribe to the column via RSS or e-mail.

Wade Roush is a contributing editor at Xconomy. Follow @wroush

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  • http://tidbits.com/ Glenn Fleishman

    Great ferreting out of the detail about one terminal per public library. That’s a fairly critical bit. Because we don’t know what the subscription pricing will be, there’s no way to know what a public library would have to pay to “upgrade” and offer additional access.

    I disagree with you (also as a book author and journalist) on some of your fundamental points. Books that are in copyright and out of print shouldn’t magically be free, nor are all of these works orphaned.

    Rightsholder absolutely have the right, and have never given up the right, to control access and set pricing. The fact that this settlement will allow out of print books still under copyright to be set to an “opt-out” status is a tremendous benefit to the public, but it can’t come through the erosion of copyright benefits.

    I would be willing to debate all day the problems with the current extremely long terms of copyright, designed to benefit corporations generally and not many creators, but given the way the law is constructed, it’s simply unfair to suggest that rightsholders shouldn’t be allowed to set prices and decide availability, or have a reasonable price set for them if the work is truly orphaned.

  • http://www.imageline2.com George Riddick

    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 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 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), Rediif (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 originalyl 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 cyberseas 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 more life, once the financial industry scandals up on Wall Street, and in the mortgage lending industries, started to surface and take center stage.

    So, here we are today. Three 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 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 engineers, lawyers, and finance people hide back in the corner on the 18th floor.

    Here is 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.

    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 her 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, I’m afraid. They all appear to be crooked, or at least hypocritical, when it comes to 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. 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 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 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?

    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 5-10 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 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 back in in early 1980s when the Google founders were still in diapers. 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 to copy other people’s copyrighted works, buy more757s, park them in your own back yards, 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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  • Jack

    I agree the settlement agreement is not ideal from a reader perspective, mostly in terms of pricing and availability of these works. However, we should see this agreement for what it is: An important first step in an evolutionary process. What the agreement does is establish a framework to: (1) make orphaned works available (legally), (2) establish a rights repository to clarify the legal status of these millions of works, and (3) establish a financial infrastructure for rewarding rights-holders. These are the key pieces, and when this framework is in place the other details can evolve. My sense is that the publishing world needs to take this one step at a time.

    Consider digital distribution of music. When Apple first persuaded the labels to allow digital distribution, it was not under ideal terms: The tracks were more expensive than CDs, and they were protected by DRM. Over time both of these improved dramatically (look at the Amazon MP3 store, for example), as the labels came to recognize they could get a lot more people to buy if they made the terms more favorable. I.e., by liberalizing access the expanded sales overwhelm any increase in theft. At present it’s hard to say where this will all end up — whether it’s music, books, or movies. But the key first step is getting the infrastructure in place to allow access. I’m looking forward to seeing how this evolves. In the meantime, my access (and the Harvard community’s access) to these works has only improved by this deal.

  • Chris Milton
  • http://nickyoung.ky Nick Young

    George, I think you need to understand that the web is all about accessibility and information delivery. In the business of creating images, a form of digital information, you should know that it stands the chance to be seen by anyone if you host them publicly, due to the nature of the web. If you want to limit access on the web, then provide your intended audience with a way to access your copyrighted work. web is public domain unless specified as private. (If you intentionally leave cash on the sidewalk for anyone to see but not touch, I doubt you will find it there days later.)

  • Jim C,

    Check out clause 6.3(b) of the agreement. It spells out what happens if someone buys a public domain book by accident, that Google didn’t know was in the public domain.

    Answer? They still pay, and the old rights holder gets to keep the money they don’t deserve!

    A real recipe for disaster, because what incentive is there for google to adequately research the PD status of an older book? If they take the side of caution, they make money!

    Also– absolutely no guarantees of continued free downloading of PD books. At any time, Google could charge for PD books–the only free requirement is viewing only. They soon will start charging for downloads, trust me. They are turning Books into an online only model.

    Worse, no remote access unless you belong in some way to a subscribing institution. That rules out most people over the age of 22 or so.

    People who think this is a great deal obviously don’t read many books. It’s pretty useless for most people. And– this wasn’t noted– that sole library terminal will turn into a big profit center, because you can print out the book– at a per-page fee, payable to the registry!

    Add that on to the library’s own 10 cents a copy charge, and you’re talking real money after awhile.

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  • http://nullprogram.com Chris Wellons

    Hey, George Riddick, stop being a moron and learn how to use “robots.txt” sometime, so you can stop all your childish whining. Having one will keep all the search engines from indexing your precious 1990′s clipart.

    Get with the times. The robot exclusion standard has been around for 15 years now. You have no excuse to complain about anything. (Hey, maybe you just like throwing temper tantrums.)

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