April 20, 2018

Harvard Slams Google Settlement; Others Reactwith Caution

  • Increased access
  • Did libraries sell out?
  • End of copyright?

If a major theme has emerged among the reactions to Google’s sweeping $125 million settlement with publishers and authors over its library scan plan, it is cautious optimism, tempered by uncertainty. As LJ noted in its initial report, most observers say that the success of the deal will be in the details—and, as of now, this broad, complex business arrangement, still seeking court approval, simply leaves many questions open—especially for libraries. LJ has put together a quick roundup of thoughtful opinions now circulating about what the settlement means:

For libraries
In today’s big news, Harvard University Library (HUL) Director Robert Darnton said that questions about the proposed settlement would make it impossible for HUL to participate. “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,” Darnton wrote in a letter to library to staff.

“The settlement provides no assurance that the prices charged for access will be reasonable,” he added, “especially since the subscription services will have no real competitors.” It was unclear at press time what Harvard’s non-participation means in practice, since it is not a party to the actual settlement or the lawsuit. Harvard, however, was one of Google’s original five partners in the library scan plan.

On his blog, University of Michigan’s Paul Courant acknowledged the settlement shifted Google Book Search from a “universal digital library” to a “universal digital bookstore” but suggested that the deal was a win, because it was the quickest path to increased access to books. “Even a win for Google would have left the libraries unable to have full use of their digitized collections of in-copyright materials on behalf of their own campuses or the broader public.” Courant blogged. “Making the digitized collections broadly usable would have required negotiations with rightsholders, in some cases book by book, and publisher by publisher. I’m confident that we would have gotten there in time, serving the interests of all parties. But ‘in time’ would surely have been many years.”

In a spirited response to the settlement on his blog, and soon-to-be book, The Googlization of Everything Siva Vaidhyanathan, who has sparred with Courant over libraries’ role in Google Book Search in the past, still wasn’t buying Courant’s argument:

“Libraries at public universities all over this country (including the one that employs me) have spent many billions of dollars collecting these books,” he wrote. “Now they are just giving away access to one company that is cornering the market on on-line access. They did this without concern for user confidentiality, preservation, image quality, search prowess, metadata standards, or long-term sustainability. They chose the expedient way rather than the best way to build and extend their collections. I am sympathetic to the claim that something is better than nothing and sooner is better than later. But sympathy remains mere sympathy. These claims are not convincing when one considers just how great an alternative system could be, if everyone would just mount a long-term, global campaign for it rather than settle for the quick fix.”

With Google and publishers now proposing a new, “central commercial clearinghouse for rights for much of the written work of the 20th century,”  Vaidhyanathan said stakeholders must now ponder implications of the potential commercialization of knowledge under a single corporate umbrella.

“At the core of this settlement is this fact that university libraries must confront: For the first time, elements of library collections will be offered for sale in widespread manner via a private contractor. Perhaps this is only a shift of degree. Perhaps it is a major mission shift. It’s worth a good argument, no?”

Fair use
At the end of the day, the core copyright disagreement that underpinned the lawsuits was not even broached in the settlement—mostly to sighs of relief, but also, to laments about what could have been.

“It is good news that the settlement does not presume to answer the question about what ‘fair use’ would have allowed,” wrote Stanford University’s Lawrence Lessig, on his blog. “The Association of American Publishers [AAP] and the Authors Guild [AG] are clear that they still don’t agree with Google’s views about fair use. But this agreement gives the public (and authors) more than what fair use would have permitted. That leaves fair use as it is, and gives the spread of knowledge more than it would have had.”

Vaidhyanathan was also relieved to avoid the great “copyright meltdown” that could have come in the wake of a Google loss in court—but he questioned the future of fair use. “Back when Google debuted the library scanning part of the Book Search program, many of my fellow copyright critics celebrated the fact that a big, rich, powerful company was taking a stand to make fair use stronger,” he noted. “Well, it looks like that never did happen. Fair use in the digital world is just as murky and unpredictable (not to mention unfair and useless) as it was yesterday.”

At the Public Knowledge blog, Sherwin Siy wondered if, three years later, all the moral outrage of AAP over the scanning and the equally moral posturing of Google standing shoulder-to-shoulder with libraries in defense of fair use, was for nothing. “This settlement doesn’t go to the merits of these arguments,” he noted, “meaning that anyone else trying to do what Google did will face the same legal battle all over again. The questions of law remain unsettled, the lawsuit goes away.”

And we can’t resist including this finger-wagging statement, from Viacom, owner of plaintiff publisher Simon & Schuster, still currently suing Google for $1 billion over its YouTube service: “It is unfortunate that publishers had to spend years, and millions of dollars, for Google to honor [copyright]. We hope that Google avoids the wasted effort and comes more quickly to respect movies and television programming.”

For Google
Many observers have noted that Google is mostly a big winner in this settlement. After all, it has in theory just universally licensed a medium that has contained the whole of human history for $125 million—pocket change to the well-capitalized search giant. Nevertheless, the deal raises major questions for the future of Google.

“When Google started out, they pointed people to other people’s content,” Internet Archive and Open Content Alliance founder Brewster Kahle told the San Jose Mercury News. “Now they’re breaking the model of the Web. They’re like the bad old days of AOL, trying to build a walled garden of content that you have to pay to see.”

At popular blog Techdirt, Mike Masnick deftly pondered the shift in Google’s position from its “Do No Evil” corporate mantra, to, well, pay ‘em off.

“Specifically, [Google] positioned itself as being willing to fight certain lawsuits on principle in order to get precedent-setting rulings on the books in support of openness, fair use, safe harbors and many other important issues,” Masnick observed. “The company suggested that, rather than settle, it would fight these lawsuits knowing that it alone, with its big war chest of money, could fight some of these battles that tiny startups could never afford. It may not be surprising, but it’s safe to say those days are long gone.”

Ultimately, Masnick wondered if Google’s business deal-as-settlement may come back to haunt the company, perhaps locking it in to a model that may soon be outmoded, or encouraging a pay-me-off principle. “[The settlement] will only encourage more lawsuits against Google for trying to innovate, as more and more people hope that Google will settle and throw some cash their way,” he noted. “Furthermore, it greatly diminishes the incentives for making books more useful, and that’s damaging to our cultural heritage.”

Surprisingly, Lessig, who famously opposed a settlement in this case on very similar grounds, did not seem to agree with Masnick—nor his own initial views. “This is a good deal that could be the basis for something really fantastic,” Lessig wrote of the settlement. The terms, he added “will assure greater access to these materials than would have been the case had Google prevailed.”

For publishers and authors
Despite all the opinions, by and large, many are left questioning whether publishers have just acquired a huge rights headache—from trying to distribute the $45 million (in roughly $60 increments) to aggrieved writers to participating in yet another copyright registry, this one private. All that in addition to figuring out a way to whack up potential advertising revenue earned under the deal.

As you might guess, especially for the millions of books published pre-Internet, very few book contracts deal explicitly with allocating online advertising income—something that could lead to—you got it, even more lawsuits—from authors against their publishers. To quote one director of a large university press, speaking on background, “that’s one check I don’t want,” alluding to the potential rights problem.

In an eye-opening post, however, Mike Madison, one of LJAN’s favorite bloggers, very smartly looked beyond the niggling contract issues that are now sure to be raised, suggesting the settlement portends a broader shift for the future business of both writing and publishing.

“The proposal offers a new and larger set of questions, questions that have surrounded Google generally for some time but that the proposal puts into more concrete focus: are we seeing the early stages of the beginning of the end of copyright law as we know it?” Madison wondered. “The standard account of copyright, if such a thing still exists, posits a statutory allocation of interests between authors and readers, followed by institutional arrangements in specific contexts (fair use, voluntary licensing, collective rights management, compulsory licenses)… It has been my sense for some time that in many information policy debates, the default statutory arrangement no longer commands automatic attention as the presumptive center of the copyright universe.”