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Google Books Settlement (Part I)

September 4th, 2009 by Chris Strauber

Image of digital scanner Today (September 4th, 2009) is the last day for authors to opt out of the proposed class action settlement between Google and publishers concerning the Google Books project. Since the settlement was announced last fall there has been a blizzard of press coverage and arguments for and against the settlement. Part I is an introduction to the project, the players, and what’s under discussion.

The Story So Far
Starting in 2004 Google, in cooperation with several libraries worldwide, including Stanford, the University of Michigan, Oxford, Harvard, and the New York Public Library, began the largest digitization project in history. The goal was to comprehensively scan and make available online the collections of these major research institutions. Google claimed that “fair use” allowed it to make copies of the millions of works involved as long as it displayed no more than brief excerpts online. Publishers disagreed, claiming that the act of making the copies was itself copyright infringement on a massive scale, and sued Google in 2005. While the case was pending a number of other libraries have joined the project, including the Bibliothèque Nationale, the Bavarian State Library, and the National Library of Catalonia. A proposed settlement was announced last fall, with a time limit for objections set by the court overseeing the case.

The Settlement
The settlement would set up a Book Rights Registry to manage royalties from the sale of digital books and advertising. Current publications and pre-1923 publications would be handled the same way they are now. A major problem with past digitization efforts has been determining who owns the copyright to large numbers of “orphan works”, those whose copyright holders cannot easily (or at all) be identified. The settlement would hold royalties in trust where copyright is unclear, and therefore provide an incentive for publishers to claim their orphan works.
Objections to the settlement largely center on monopoly power, pricing, and privacy. Robert Darnton of Harvard started the discussion of serious objections to the settlement in an article in the New York Review of Books in February. While the settlement is not an exclusive one, the path Google has taken is not one open to many others. Anyone wanting to replicate the Google Books project would have to begin scanning books, get sued by every author and publisher on the planet, and come to a settlement. Google could also abuse its monopoly position by raising prices to whatever level it wanted. Objections by the Internet Archive and Amazon say the way to do this is to change the law to make it possible, not use a court case to completely change how copyright law works to the benefit of one company. The FTC and the American Library Association have expressed concerns about the privacy implications of such a large digital library.

A second set of concerns, not related to the legalities, are concerns about the quality of the data produced by Google’s massive and rapid scanning (almost 10 million books in five years). A recent article in the Chronicle of Higher Education by Geoff Nunberg of UC-Berkeley points out a range of problems which need to be addressed to make the Google library useful for scholarship.

Additional overviews
Tome Raider (brief). By the Economist. Good coverage of the European angle, which is important but not being discussed in US publications as much, because the settlement would apply to US publishers only.
Google’s Moon Shot (lengthy). By Jeffrey Toobin, in the New Yorker.

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