Tuesday, November 24, 2009

The Google Settlement: Why It Matters The Google Settlement: what's right, what's wrong, what's left to do
by James Grimmelmann -- Publishers Weekly, 11/23/2009

The Google Book Search Settlement, which was amended November 13, is a big document and a big deal: $125 million and a dramatic shift in copyright law. Having spent the last year studying the settlement and writing about it, I'd like to explain why it matters so much. On Google's home turf—search—what it does is almost wholly good. When search engines work right, they empower users to seek out whatever they want to learn. That's the exact opposite of broadcasting, in which a few big speakers choose what everyone else hears. In a world where everyone can self-publish, search engines turn what would otherwise be deafening cacophony into the best party ever, where every guest can instantly join the conversation that most interests them. That's good for freedom, and good for democracy. Building better search engines is a moral imperative.

That's why Google ought to prevail if the lawsuit that resulted in the settlement were ever to go to trial. Courts have treated online copying as a fair use when the purpose is to create a Web search engine. In the same way, scanning books to make a book search engine should also be a fair use. The settlement, though, goes far beyond just scanning and indexing. Selling full books is the kind of commercial transaction at the heart of copyright. It would be obviously infringing unless the copyright owner consented. Using a class action to obtain that consent—en masse—was a stroke of genius by the settlement's architects. It turned the lawsuit inside out.

My immediate reaction, as I blogged the afternoon the settlement was announced in October 2008, was “This is a Google-only deal.” The settlement would let Google sell out-of-print books unless the copyright owners objected. A competitor, however, would need to get individual permission first or be sued into oblivion. That's hard enough in general, and for orphan books it's impossible. There's no one to ask. The class action opens a door for Google, but leaves it closed for everyone else. That fact has always been the absolutely critical feature of the settlement. It makes the settlement exciting, because it means that millions of out-of-print and orphan books would become much more widely available. It also makes the settlement dangerous, because millions of copyrights would be collectively press-ganged into Google's service.

Either way, it makes the settlement important. Google cofounder Sergey Brin compared the project to the Library of Alexandria. That's thinking too small. The switch to digital is, like the switch to movable type, a paradigm shift in the technology of text. It will have similarly large repercussions, and the Google settlement is making it happen well ahead of schedule. But delete the shift to an opt-out system from the deal and what remains is a big but fairly routine settlement of a copyright lawsuit.

The original settlement has opened our eyes to some exciting new possibilities and would do remarkable things to improve access to books. Some kind of digital access for out-of-print and orphan books along these lines would be a huge step forward for literary culture, closing the digital divide, and the future of information. But the fact that the settlement gets some things very right shouldn't isolate it from searching review of the things it doesn't. And the only way to make those distinctions is to have an informed, extensive, public discussion. Broadly speaking, there are three sets of reasons to worry about the settlement.

The first is whether having a single, central source for all these millions of books is good for society. Will it drive libraries to eliminate their print collections and become dependent on Google's institutional subscription, only to see its price rise uncontrollably? Will the FBI force Google to turn over its lists of who's been reading the Qur'an? If these kinds of broad-reaching policy decisions were being made by Congress, the legislative process would in theory take everyone's interests into account. But in a settlement negotiated by a handful of lawyers, the danger is always that the “public interest” means whatever they say it does.

A second is that Google-only exclusivity is an antitrust problem. No one else will be selling access to orphan works; it would be illegal for them to. That's a government-conferred franchise, and unlike the “monopoly” of copyright itself, it would be concentrated in Google's hands. It was gratifying to see the Department of Justice agree both with my belief that the settlement would create worrisome barriers to entry and with my proposed fix: open up the settlement to any competitor on the same terms Google would receive.

A third reason for concern is inherent in the class action procedure itself. Class actions can be a powerful tool for justice, offering compensation for mass harms and deterring future wrongdoers. But because class action settlements impose a judgment on all of the class members, there's a serious risk that their own lawyers will sell them up the river for a song and make millions of dollars in legal fees for doing so. Guarding against such abuses requires looking closely at how the settlement treats different classes of copyright owners, whether class members are receiving sufficient notice of its terms, and how the Book Rights Registry will handle the money it receives from Google.

All three of these concerns flow from that same central feature that makes the settlement what it is: the literally unprecedented way the settlement uses a class action to create an opt-out system for selling books. Here, the plaintiffs aren't just giving up the right to sue Google for scanning their books; they're also being shanghaied into a complicated commercial deal that includes a controversial allocation of electronic book rights and requires them to give up the right in the future to sue Google for plenty of things it hasn't even contemplated doing yet.

A comprehensive digital books database would be a very good thing, but expediency is no substitute for the rule of law. Even if this settlement is “fair, reasonable, and adequate” to copyright owners, as the law requires, it would still be important to make sure that it doesn't create a bad precedent for future class actions. What if Union Carbide had been able to settle the Bhopal lawsuits on terms that allowed it to keep on pumping out toxic methyl isocyanate in the future, provided it split the revenue with people living nearby?
More at PW online.


Keith Mockett said...

Excellent article. I agree that making search better is important and an honourable pursuit. I am just reading the Google Story which is an interesting read.

Near the end of the article is this quote: "The new class excludes continental Europe, Japan, and New Zealand, home to the squeakiest wheels the first time around. They wanted out of the settlement, and they got it."

Squeaky wheel!

Fergus Barrowman said...

An excellent article, yes. It sets out the potential benefits and dangers very clearly. I still believe that the former would have outweighed the latter if the settlement had gone ahead in close to its original form.

However, if "Settlement 1.1" goes ahead, the "big feature cut" which excludes New Zealand and other territories, while including our close relations Australia, Britain and Canada, will prove to be a huge handicap in our cultural, intellectual and no doubt economic future. The squeaky wheels have done us all a major disservice.

Keri Hulme said...

Fergus, you are so wrong: while some pub;ishers here *may* have benefited, authors-by & large- wouldnt have. Our control of our rights would've been subsumed by Google.

A "huge handicap in our cultural, intellectual and no doubt economic future"? Geez mate, that is a statement so limiting, so limited in pov, and so full of shit.

I'm very proud to have been one of the squeaky wheels

Fergus said...

Kia ora Keri. I'm sure we could continue to argue about this without getting any closer until the chickens come home to roost. My point is that whether you or I like it or not Google Books is going to be a big part of our digital future. Can it be good that the US, UK, Canada and Australia will have insider status, and we won't?

Lynley Hood said...

Why should NZ authors snuggle up to Google? Google has pirated hundreds of our books. The Google Book Settlement (GBS) is yet to be ratified by a Court. The final version is bound to be different from the one we have now. Most of us wouldn’t agree to having our cars repaired without knowing exactly what we’re letting ourselves in for. 
For large publishers, having hundreds of out-of-print books available online could be a nice little earner. But for small publishers - who presumably have short book lists - the attraction is difficult to understand.  
Early one morning the penny dropped. The password that allows me to determine how many books Google has in its database in my name, also allows me to determine how many books it has in the name of any publisher I care to enter.  
According to the GBS database, Longacre Press published 30 titles in 2008. All are listed on Longacre’s website. 
VUP’s website lists 21 titles published in 2008, but the GBS database tells a different story. Enter “Victoria University Press Wellington” and “2008” into the GBS search engine, the answer comes back: 424 books.  In the real world, our biggest publishers produce fewer than 150 titles per year. So what’s going on? Starting in 1960, and going through to 2008 - and on and on into the future if the GBS is approved by the Court - hundreds of titles will be added to the VUP list in the GBS database each year. 
Where do all the extra books come from? The answer is that the GBS defines just about anything printed on paper and deposited in a library as a “book”. Every year hundreds of theses, monographs, reports and course guides are deposited in the Victoria University library. All these appear in the GBS database as published by VUP. 
If NZ books were included in the GBS, VUP could claim for thousands of “books” it hasn’t actually published. I do not know whether VUP wants to take advantage of this opportunity. I do not even know whether the opportunity is a factor in Fegus’s support for the GBS. But from this author’s point of view, the perception of a potential conflict of interest is troubling.

Anonymous said...

Yes, a scandal. Searching for Victoria University Press it looks like Fergus is also claiming the Victoria Stamp Traders titles and an interesting manual from the Irrigation Branch of the Victoria Dept of Agriculture. A conspiracy so immense? No--a typical gooogle search. Lynley might want to look under the imprint information to see which books are VUP and which aren't! Even worth doing before leaping into print next time?

Unknown said...

Hello from Canada, where I can assure you that not everyone is delighted with the Google Book settlement. In fact, not everyone is delighted with The Writers Union of Canada. Most of the Contracts Committee of that organization has quit in protest, starting with the Chairman. While much has been made of TWUC's reluctance to endorse 2.0 or to supply a Canadian plaintiff, the reality is that it has been pretty acquiescent to the Authors guild. In spite of regional demands to reject the settlement outright, the TWUC National Council thought the thing to do, before sending an objection letter re 1.0, was to consult with the Authors Guild. The TWUC National Chair was proud to announce to the membership that the AG had "the highest praise" for the TWUC submission. (Translation: we don't need to worry about Canada. No squeaky wheel there.)
Regarding Canada being a digital insider if it stays in the settlement, while New Zealand would be on the outside, the view of some Canadian writers is that there will soon be other digital alternatives... by which is not presumably meant "vanity presses", but cooperative online bookstores for professional writers.
The brave new electronic world is still young, and our copyrights should not be signed away for ever to Google.
David Bolt

Lynley Hood said...

For my search I used the official Google Book Settlement "Find and Claim" form. In the imprint box I entered "Victoria University Press Wellington". In the date box I entered "2008". I was presented with a list of 424 titles. Most of the titles were university theses. I'm not for a moment suggesting that Fergus would claim for work he hasn't actually published, but the GBS "find and claim" process invites him to do just that. This database flaw makes is very easy, and potentially very lucrative, for any unscrupulous publisher at any NZ university to claim for thousands of unpublished works - and the copyright owners of these works, who probably believe that the GBS relates only to published books, would be unlikely to ever find out.

Fergus said...

It's not a database flaw, Lynley, it's your poor google skills. Just put double inverted commas around "victoria university press". Still, I guess I can take comfort from your second post that you meant only to indicate an opportunity for me to be a crook, not to insinuate that I am one.

Lynley Hood said...

It is a database flaw, Fergus. The search engine is specifically designed to find imprints. Enter Longacre Press (without quotation
marks) and you get back a list of books published by Longacre Press.
Enter Victoria University Press Wellington (how many imprints are there by that name?) and you get back a list of 424 titles allegedly published in 2008. Enter the same for 1960 to 2008 and you get back over 14 thousand "publications", only 4% of which have ISBN numbers (but many of which have been "digitized without authorization" by Google. I'm confident that a NZ digital library run by real librarians would not produce such a silly (and worrying) result. So why don't do the sensible thing and treat Google like any other copyright infringer? i.e.:
* require the return of the illegally copied work (this could make a great contribution to NZ's own digital library.)
* require payment of compensation - just scale up whatever fine CLL demands of teachers who dare to copy one page without authorisation, and we should have enough to get our own national digital library off to to a flying start.

Anonymous said...

Oh give up Lynley! Longacre's a unique name. Try any other publisher who has a common word like 'Victoria' in it and you'll get all sorts of crap results. Then look under the 'imprint' column and you'll see who the actual publisher is. Too hard to understand? Too awful to consider there may be no conspiracy but actual interest in doing something for books and authors?

Lynley Hood said...

Get off your high horse, Sam (posting anonymously does you no credit). The GBS search algorithm for "publisher or imprint" does not distinguish between the modest number of books published by university presses, and the thousands of published and unpublished items created by university staff and students and deposited in university libraries. This flaw leaves the great community of scholars in tertiary institutions wide open to exploitation.

Anonymous said...

I'm a Kiwi author in Canada who has been one of the squeaky wheels here. I can assure you that Canadian authors are no better off in this ripoff because Google has oh-so-benignly allowed us to stay in this settlement. It's theft whether you are in or out. Who wants to contract with a known fraudster?
Katherine Gordon
Gabriola BC

Unknown said...

Ms. Gordon is not only a squeaky Canadian Kiwi, but is highly articulate. Also, she has a talent for grabbing the attention of the national newspapers.
I hope she squeaks just as loudly this time around and inspires more opt-outs. This is Canada's only course, given the squeaklessness of the The Writers Union (and thus the government.)
David Bolt