All Books All the Time
November 21 2009
You’ve probably heard rumblings in the media about the extremely controversial Google Books Settlement proposed to U.S. District Court this past week. It’s complex—the document is itself a 300-page book. But it’s pretty radical in its effects and implications for authors, publishers, libraries, booksellers, book buyers and readers.
It’s well beyond the scope of one post to do justice to the main points, so in this one I will give you the basic history of the controversy, up to the 2008 Settlement a year ago. In my next blog I will describe the challenges to that Settlement. Then I will address the main changes in new November 2009 Settlement, and subsequently the pros and cons already being vividly expressed.
I’m not a copyright expert, and what you have here is about 1800 words I’ve edited from a series of interviews with copyright experts conducted over the past year by Chris Keneally of the Copyright Clearance Center in Boston. (These interviews themselves are 25,000 words-plus. The url for them is at the bottom of this post.)
In the last couple of years, we’ve seen e-books really start to take off. We’ve seen a proliferation of devices on which to read electronic content, from the iPhone to the Kindle to the Sony eReader and Nook, and we’re going to see more of them. We’re looking at a fairly recent phenomenon in book publishing: that the customer, the reader, wants content to be available and distributed when they want it, how they want it, combined with other materials as they want, and also priced the way they want it.
It was in 2004 that Google entered into agreements with major university libraries like the University of Michigan, Stanford, and Harvard, and began to scan books and other materials from those libraries' collections. That was the Google Library Project.
And the understanding was that these digital copies would be maintained by Google, and that a copy of the end digital version would go back to the participating library. The works in those libraries encompass the works of the world. The holdings of these libraries are obviously very, very extensive.
At the same time Google was scanning books taken from these libraries, with the permission of the libraries, Google began a separate, voluntary program for publishers and authors, known as the Partner Program, and acquired more books through that program.
A huge, searchable database existed as a result of all of the Google scanning activity. Google then made books that are a part of this database available online for various uses, including searching and snippet displays in the results. All this scanning was done without publisher permission.
Authors and publishers were quite reasonably concerned about the impact that this kind of mass digitization might have on their ability to control, to be paid, and to be paid for the uses of their works. So in 2005, the Authors Guild brought a suit against Google, and they brought that suit as a class action. Very shortly after, a group of publishers, supported by the American Association of Publishers (AAP), brought a separate suit against Google, alleging that its scanning and use of the end copyright books constituted copyright infringement.
The authors' group pointed out that unlike more typical class action settlements that deal primarily with past behavior and with measuring damages for past activities, the settlement agreement in this case has a lot of future implications. It, if approved, will authorize Google to engage in future uses of copyrighted works, potentially in perpetuity.
It's a very broad license of many rights to the books and the inserts that are covered by the settlement agreement. It has provisions for the use of those rights in the future in various forms, primarily digital, but various forms. And it establishes an entirely new entity, an entity called the Book Rights Registry, that's going to manage those rights and disburse payments received from Google in connection with the exploitation of those rights.
One of the most vocal critics of the orphaned works aspect of this has been the Internet Archive. The Internet Archive has a long history of copying and maintaining the history of the Web. Internet Archive has always been a vocal supporter of orphaned works legislation, which would permit the use of these unclaimed, unmanaged works under certain circumstances and with certain limitations on exposure for the user.
A settlement was made in October 2008. Because it was a class action those works are included in the 2008 settlement, if their owners, the rights holders associated with those works do not come forward and opt out, the works will be covered by the settlement, and their future uses will be covered by the settlement. By definition, if the work's an orphan, the rights holder isn't going to come forward. So the Internet Archive and other critics have been arguing that the settlement will functionally give Google an exclusive license to the use of orphaned works in the future, and for the uses licensed under the agreement.
The new Book Rights Registry introduces into the environment a new organization, which is really determined to give an unprecedented degree of control for authors, publishers, and others, rights holders, on how their copyrights are exploited and distributed in this new digital world.
Many millions of books have been digitized by Google and are covered by the terms of this settlement agreement -- one of the largest metadata sets of digital books ever compiled. And it is intrinsically, a complex set of data because there are multiple editions of the same work that have been digitized, there have been multiple copies of individual works that have been digitized, there are inserts within works. It’s quite clear even for a layperson to see that the management of this metadata set is going to be challenging. Now, if you layer on top of that complex metadata relating to rights holders, you complicate the situation, if you like, a further stage.
An important point of this settlement is that the Registry will be a vehicle through which rights holders can exercise control on the use made by Google and others of these digitized works. There is a lot of control given back to rights holders by virtue of this settlement agreement.
The 2008 settlement agreement gives free access to this corpus of works to every public library building in the United States. That is revolutionary because it’s effectively turning every public library building in this country into, effectively, a world-class research facility. And the settlement allows for the creation of a database available under subscription to every library in the United States. It also permits any college or any university in the US to subscribe to this same, very rich, very complex database of out of print books.
International rights holders were affected by the 2008 settlement, because the books that Google digitized from collections at Michigan and Stanford and other places included a large number of works\ that are owned by rights holders outside the United States.
The benefits of the settlement included payments for Google's past scanning of books. The agreement also included a mechanism for ongoing payments associated with Google's future uses of these works. The basic split was that Google would take revenues that it generates, and give 63% of those revenues to the Book Rights Registry as the rights holder representative, and Google would keep 37%.
The 2008 settlement has built into it provisions that would permit rights holders to manage the uses of their works under the settlement, to flick the switch on and off for certain of the specific uses that Google is authorized to make. The default positions of those switches varies according to a number of factors, whether a book is assumed to be included in a particular work, or assumed to be in a particular type of use, or is assumed to be excluded from that particular type of use.
If rights holders want to get payments for past scanning, they have to claim their works by January 5, 2010. And those payments will apply to works that were scanned prior to May 5, 2009. You're only entitled to the scanning payment if you opt in.
That's the initial fork in the road. If you've decided to participate, you need do nothing, because silence is consent. If you participate, your books and inserts will be included in the settlement agreement. Google will have a license to use them as specified in the settlement agreement. You will have a right to control those uses as specified in the settlement agreement. And you will be able to participate in the other revenue producing programs that are contemplated under the settlement agreement.
If you participate, you will be entitled to file formal objections to the agreement. If you are participating but have some concerns, you will be able to get those concerns before the court, but you would have to file those objections by September 4, 2009, in order for them to be considered by the court at the fairness hearing.
And, if you participate, you will become subject to the dispute resolution mechanisms in the agreement, which include arbitration. They're something someone should be thinking about, understanding, if they're deciding to participate.
If you want to opt out – if you've considered these factors and you decide to opt out, you will not be included in the settlement. You will not receive the benefits conferred by the settlement, but you will retain the right to sue Google and the libraries that provided works for Google in connection with the scanning.
If you opt out, you could still participate in the – on a voluntary basis, in the Google Partner Program.
This was the settlement challenged by the Authors Guild, the Association of American Publishers, Amazon.com, and Microsoft, among others.
NEXT: the substance of the challenges.
SOURCE:
Copyright Clearance Center’s Authors Guild, AAP, Google Settlement Seminar Series
http://www.copyright.com/viewPage.do?pageCode=pu18
