CAA News Today

With this feature on the Google Book Settlement, CAA hopes to better inform you about the issues at stake, with links to articles and editorials from authors and reporters supporting or criticizing the settlement. CAA’s constituency includes both creators and users of books, and the Committee on Intellectual Property has taken up the matter for consideration and is currently considering what position, if any, to recommend.

For nearly five years, Google has been scanning books, most still under copyright, for its Google Library Book Project. More than ten million books, including many that are out of print, have been scanned since 2004.

Proponents of Google Books, which include authors, researchers, librarians, disability-rights advocates, and more, have been enthusiastic about the possibilities it offers them. However, opponents of the project—other authors, academics, publishers, and organizations such as the Open Book Alliance (which includes Microsoft, Yahoo!, Amazon, and the Internet Archive), as well as foreign governments (Google has been scanning books in languages other than English)—have been equally fierce.

Among other individuals and groups, the Authors Guild and the Association of American Publishers protested the unauthorized copying of in-copyright books by Google. Two suits, one of them a class action, were filed against the internet company in the fall of 2005; a Copyright Class Action Settlement between Google and the author and publisher class representatives was announced in October 2008.

Objections to the settlement and statements of support were filed by September 8, 2009. The US Department of Justice launched an inquiry into the settlement and filed a statement on September 18, raising numerous concerns, including one that the agreement might violate antitrust laws. The settlement is pending before US District Judge Denny Chin, who held a status conference on October 7. At the status conference, the parties announced that they would be filing an amended settlement agreement, and Judge Chin set a November 9 deadline to do so. The parties also announced that the deadline for filing claims to receive cash payments for books that were scanned prior to May 6, 2009, has been extended to June 5, 2010.

The original settlement was complex, and parts of it will likely change during the renegotiations. One important feature was that copyright holders had the responsibility to limit previews of their out-of-print, in-copyright works, that is to say, the author or publisher would have had full rights to tell Google to remove the book if it has already been scanned or to refrain from displaying the contents of that book. Otherwise, Google could have displayed larger previews of books without the copyright holder’s permission. Unless copyright holders opted out of the settlement by September 4, 2009, their works—both in and out of print—that have already been scanned would have been subject to the settlement. As mentioned before, however, these terms may change.

The status of copyrighted images within books scanned by Google is not yet clear. Artists and photographers (except illustrators of children’s books) were excluded from the old settlement. Important questions, which may or may not be addressed in the revision, include: Will copyrighted images be reproduced in volumes available in Google Books? Will the authors or publishers who signed (sometimes limited) reproduction-rights be liable for infringement?

Recent Press and Points of View

Below are summaries of recent articles on Google Books and the settlement, which can give you a better understanding of the issue.

“Depending on one’s perspective, the landmark book-search deal represents either a literary cartel that would lead to higher prices and less competition—or a breakthrough that would make millions of hard-to-find books available to anyone online.” So writes the authors of “Google wants to be world’s librarian,” published in the October 2009 issue of eSchool News. This text is a broad account about the issues at stake and a good place to start for beginners.¹

Kenneth Crews of the Copyright Advisory Office (CAO) at Columbia University Libraries/Information Services was present at the October 7 status conference and gives an account on the CAO blog.

Alexis Madrigal, a science writer at Wired.com who is working on a book about the history of green technology, makes an impassioned case for Google Books, without which his study would have been impossible to write. He also cites online sources such as JSTOR, Proquest, arXiv, and of course Google Books as indispensable resources for twenty-first-century research, which save authors and scholars immeasurable time and money. The comments section of his article contains a useful dialogue among Madrigal and his readers; some new ideas, such having an NGO or other “profit-neutral org” take over the stewardship of Google’s initial work, have come forth in the discussion.

Miguel Helft of the New York Times addresses the prehearing issues in “In E-Books, It’s an Army vs. Google,” with a good number of objections about Google becoming too powerful, locking out competitors, and neglecting user privacy. Meanwhile in the same paper, Lewis Hyde address a subissue in the settlement, that of orphan works, whose rights Google could exploit—and profit from—in the absence of copyright holders who come forward to claim their books. “Of more than seven million works scanned by Google so far,” Hyde estimates, “four to five million. appear to be orphaned.” The settlement was “a smart way to untangle the orphan works mess, but it has some serious problems…. [P]arties to the Google settlement are asking the judge to let them be orphan guardians but without any necessary obligation to the public side of the copyright bargain.”

At the Huffington Post, Peter Brantley calls Google’s plans wrong and even dangerous in “Google Books: Right Goal, Wrong Solution.” Even though digitizing millions of books and making them searchable internationally is a laudable goal, “[a]ny settlement these parties reach will necessarily consider their own commercial gain first, trampling public rights in the process.” Congress, he feels, is the place in which the issue should be dealt.

Tim Wu at Slate writes that Google Books is “great for a researcher like me, but as a commercial venture it is almost certainly a perpetual money-loser.” With their stacks of old and unpopular books, brick-and-mortar libraries aren’t generally run for profit, and public utilities like sewer systems aren’t built “without prodding or—dare I say it—a monopoly of some kind.” Scanning books isn’t a profitable enterprise, he notes. (Even eSchool News reports that years ago Microsoft scrapped plans for a book-scanning project years ago due to unprofitability.) Wu does concede that the settlement “isn’t perfect and needs to be better to serve the public.”

November 9 Update

In addition to his own post from last week about his thoughts on the pending revision to the Google Books settlement, Kenneth Crews of the Copyright Advisory Office at Columbia University provides links to two recently published articles in the November issue of the Economist’s Voice:

• Paul Courant, “What’s at Stake in the Google Books Search Settlement”
• Pamela Samuelson, “The Google Book Settlement: Real Magic or a Trick?”

Matthew Sag of DePaul University’s College of Law has recently published a substantial essay on the settlement, “The Google Book Settlement and the Fair Use Counterfactual,” which is available for download on the Social Science Research Network.

Using Google Books

According to Google, pages from books scanned without permission are not currently displayed in Google Books. However, the company is presenting preview pages from some titles through the Google Partner Program, which is not part of this settlement. The Partner Program scans only books that are approved by their copyright holders. (Of course, public-domain books are available in their entirety.) If you believe Google is displaying pages from your book without your permission, you should contact your agent, publisher, or Google directly.

Note

1. Reprinted with permission (http://www.eschoolnews.com; info@eschoolnews.com). © 2009 eSchool News, all rights reserved.