February 16, 2018

Fissures Evident in Panel on Google Settlement

By Norman Oder

ALA 2009: Panelists agree deal has huge potential, but wary about pricing, privacy, and control

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  • Proponents: project lets libraries focus on strengths 
  • Critics: can Google be trusted?
  • Hearing coming in October

(For a set of links, go to LibraryJournal.com/GoogleBookSearchSettlement.)

Fissures in the library community regarding the proposed Google Book Search settlement were evident July 11 when the American Library Association (ALA) Washington Office hosted a Breakout Session at the ALA annual conference in Chicago. (Video is available on the Washington Office’s District Dispatch blog.)

“The settlement has great potential; we all agree that’s a good thing,” declared Nancy Kranich, chair of the ALA Committee on Legislation Copyright Subcommittee. However, she said ALA is concerned about the absence of competition and the potential to compromise fundamental library values such as equity of access, patron privacy, and intellectual freedom.

She contrasted the Chicago panel with another held at the ALA Midwinter Meeting in January in Denver, noting that ALA and partner organizations in May filed comments with a federal court on the pending settlement, which will be the subject of a hearing on October 7. Now, she said, “we want to hear about the implications.”

The overview
Google engineering director Dan Clancy, the project’s point man (LJ Interview), provided an overview of the $125 million class-action settlement, which involves anybody with a United States copyright interest in books published before January 5, 2009. It only concerns books used within the U.S. The plaintiffs were the Association of American Publishers (AAP) and the Authors Guild; libraries were not a party.

Rightsholders, he said, can opt out, but if they remain part of the class, they “still have a fair amount of control,” in that they can request that books be deleted, and they can turn on or off various economic models. In-print books will be scanned, but content won’t be shown if not authorized.

For books out of print but still bound by copyright—the key to the settlement—Google can scan, index, and make certain display uses of the material, such as offering a free preview of 20 percent of the book. Consumers can buy books, and Google will make available institutional subscriptions as well as limited public access service for institutions that choose not to subscribe.

In public libraries, there will be one terminal per building, while academic libraries will be given terminals based on FTE students. Public access service, he acknowledged, is not intended to meet the needs of the audience, but to provide some level of access.

The settlement creates a Book Rights Registry (BRR), run by authors and publishers independent from Google to primarily hold money for rights holders yet to be found.

Google, Clancy said, has 42 library partners, with three of them—the first being the University of Michigan—having modified their agreement to gain essentially free or discounted institutional subscriptions, their own digital copy of the database, and the capacity to challenge pricing on behalf of the library community at large. He said Google is “in discussions” with all the library partners about amending the agreement.

Without the settlement agreement, Google could only give digital copies back to libraries from which the book was originally scanned. Now, he said, Google can give libraries digital copies scanned from other institutions.

He said there’s a “reasonable chance” Google will exist in 50 years, but “I’m pretty confident the library partners will exist.” So if Google stops making a set of services available for the books, the libraries can find an alternative provider.

“We’re very open to adding additional partners,” he said, suggesting that “every library has thousands of books” no other library holds. “One challenge for us to develop a strategy to go from 40 to 400 and possibly 4000 partners,” he added, noting that the settlement allows Google to sign new partners up to two years from the effective date. 

A librarian in support
Patricia Steele, Dean of University Libraries, Indiana University, served on the negotiation team for the agreement with Google signed by the CIC (Committee on Institutional Cooperation) and is cofounder of HathiTrust, a digital repository launched by the 13 midwestern universities in the CIC and the University of California system.

“My initial reaction [to Google Book Search] was: this is the future, this is transformational, it’s a revolution that’s coming, it fits our goals,” Steele recalled. Digitization, she said, would allow “us to capitalize on investments we made” and provide online access that was being demanded.

Indiana, she said, did test whether it could do digitization itself. “It was a unmitigated disaster,” she said, calling it “very staff-intensive,” requiring “a lot of reengineering,” and high costs.

Google’s project “allows us to concentrate on what we can do better,” she said. Acknowledging she’s “often accused of being Pollyanna,” Steele said she met with Google staffers and recognized a zeal to share knowledge.

The HathiTrust, she said, can take the digitized corpus and provide specialized services to researchers. She said digitization will shape how libraries use their buildings, allowing collections to be moved from central locations. And, while not offering answers specifics, she suggested the digital corpus will change interlibrary loan and pedagogy.

Some skepticism
Lee Van Orsdel, Dean of University Libraries, Grand Valley State University, Allendale, MI, began by pointing out the inadequacy of Google’s free service. Her university has 24,000 students, and with one terminal for every 10,000 FTE, that would mean three terminals, likely one on the main campus.

While users would be able to do anything with public domain books, readers, she noted, would have only limited use of the mass of books still in copyright but out of print. Only 20% can be viewed, with a printing fee set by the BRR. “There’s absolutely no copy and paste allowed,” she said. “That won’t do for most of our campuses.”

While Van Orsdel said the settlement is full of promise, she suggested that Steele’s view, coming from a contributing library, differs from most librarian. The BRR makes “some pretty powerful decisions,” such as pricing the institutional database or new services, as well as to extend remote use to libraries beyond academic libraries.

“Everybody’s represented at the table, publishers, copyright holders, authors,” she said, “but there’s no one there representing the public.” There’s no transparency in the University of Michigan’s amended agreement, she said, so “even if everything’s being done right, no way for us to perceive that.” 

She cited New York Law School professor James Grimmelmann’s proposal that an antitrust consent degree be attached to settlement.

While Van Orsdel said she was impressed by Google staffers, “what happens 15 years from now when these brilliant people are doing something else?” She noted that “it’s our cultural and intellectual legacy as well,” with books scanned from institutions supported by taxpayer dollars. “There’s a public trust issue here… I do believe there’s a greater good to be balanced against some pretty powerful rights.”

The settlement demands a balance between revenue at market rates and broad access for the public, but, as she’s said before, the example of consolidation in the journal industry led to monopolistic practices.

She also questioned the absence of any commitment to privacy in the settlement. Clancy later responded that Google would address privacy: “The reason for that is we weren’t talking with the customers in the settlement.”

Copyright issues
Duke University Scholarly Communications Officer Kevin Smith, both a librarian and an attorney, suggested that the “normal checks and balances” in an adversarial proceeding are absent in this case.

Google’s plan to use advertising “doesn’t necessarily rise to level of being evil,” he said, “but it does indicate that Google will be guided by self-interest.” Beyond that, he suggested that the shared interest by Google and the plaintiffs will lead to cramped decisions about what’s in the public domain.

Also, while in most class action suits, it’s in the interest of defendants to challenge class definition, in this case Google and the plaintiffs have a shared economic interest in the certification of the class, since both can profit from orphan works. “It’s far from clear that the plaintiffs are representative,” he said.

He also suggested the requirement that foreign authors who own U.S. copyright interests opt out to avoid seeing their rights licensed to Google may violate the international copyright agreement known as the Berne Convention. (Clancy later said that Google was comfortable it wasn’t violating the agreement.)

The Google Books settlement, he said, “represents a highly unusual, I’d say revolutionary, use of class action law to create an exclusive business model.” While great public benefit may come, he said, the courts should look very closely at the consequences.

In the Q&A, Clancy pointed out, as he has said before, that other companies could go ahead and scan books themselves. Smith responded that only Google would be able to gain the license to the orphan works. Clancy responded that the chances have increased to get national orphan works legislation passed.

Will photographs and other images be included? The settlement doesn’t authorize their use. Clancy said that only libraries getting digital versions of books they supplied will receive scans with images

Clancy suggested that libraries that don’t subscribe to the Google corpus could use the consumer purchase version as a replacement for interlibrary loan—though, he acknowledged, the book would be owned by the recipient rather than returned to the library.

Library Journal ALA Annual Conference News

Click here for more ALA 2009 Conference News coverage from Library Journal and School Library Journal.

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