1709 Blog: for all the copyright community

Tuesday, 5 April 2011

Life after Google Books (non)Settlement - a speculative post

Emily Goodhand
The 1709 Blog is delighted to host this piece by Emily Goodhand, who will be known to many readers from her contributions to the twittersphere as @copyrightgirl.
On the surface, it seemed as though it was every librarian’s dream: the mass digitisation of millions of books lying dormant on dusty shelves, unseen and unread. But once again, the librarian’s arch-nemesis, copyright, reared its (arguably) ugly head in the form of class action lawsuits brought by the Authors Guild and Association of American Publishers. In a move which sparked considerable controversy amongst authors, the parties to the lawsuit proposed a Settlement Agreement which outlined a revenue model and released Google and its library partners from liability of digitising books which were still in copyright. The Settlement would have made Google the focal point for digital access to library collections and links with retain booksellers, generating revenue from subscriptions (both individual and institutional) and advertising. However, amidst several revisions and a wave of opposition, Judge Chin rejected the Settlement Agreement in March on the fundamental basis that it was not deemed to be fair and that it exceeded the scope of the original conflict (which essentially addressed only the aspect of scanning and display of snippets). 
So where does this leave ‘Google Library’? 15 million digital books adrift in the Cloud? Google have been reasonably silent on the issue since the ruling, which has given them a number of possible options moving forward. The Judge has scheduled a status conference with the parties on April 25 to see how they want to proceed. I have speculated on the consequences of each, but an excellent overview of the possible progressions of the settlement is given in the form of a flowchart by the US Library Copyright Alliance.
Ø  All parties heed Judge Chin’s advice and revise the agreement so that rightsholders are required to opt in to the scheme rather than be automatically included in it. The consequences of this are that this agreement would vastly reduce the amount of books available in the database, and orphan works where rightsholders were not known or could not be traced would not be able to be included. The cost of a subscription could also be high and many public users may feel it was not worth it. 
Ø  All parties abandon the settlement and resume litigation of the original conflict over whether the scanning and snippet display constitutes fair use. The consequences of this route are that it is expensive (for all involved), subject to delays, and the outcome, if it goes against Google, would set a precedent restricting the fair use provisions.

Ø  Google appeals the Settlement ruling – this would incur costs to all parties, and at worst could significantly delay the process as if the Settlement is rejected at any stage and parties cannot reach agreement after modifications then litigation is resumed and costs spiral. If modifications are agreed, a new Fairness Hearing must be arranged and the process repeats. At best, the appeal is upheld, the settlement is approved, and Google continues with its Library. Given the strong objections to the settlement in its current form, this is highly unlikely.

Ø The Authors Guild and the Association of American Publishers drop the lawsuit – again, given the controversy over the Google Book Settlement, this is highly unlikely.  
But what about the public interest? What would be best for the national and international populace? For Google to strike a stronger chord with the cultural and education communities, they should (or should strongly encourage others to) lobby Congress for legislation. Where the Google Library would have been a vast commercial monopoly, legislation can invite the possibility of having numerous non-commercial databases owned by public institutions where collections could be made available to the public for free. There are already a number of such initiatives in existence (such as Europeana) with the noble desire to “make the cultural and scientific heritage of humanity available, free of charge, to all” (Digital Public Library of America, here). Sadly, no matter how altruistic their nature, little can be achieved without financial capital and technical expertise, which is why Google has been able to digitise so much more quickly than the cultural sector’s non-commercial endeavours. 
Given the current climate around copyright law, with Intellectual Property reviews happening across the globe, it is my personal feeling that orphan works legislation in the form of policy and directives will be crucial to the long-term success of any National (or International) Digital Library. Google has already indicated that it will support orphan works legislation, in which case it should develop closer links with the cultural and education sectors who also favour a solution which enables them to unlock their vault of works long out of print or whose authors have vanished without a trace. The main problem with going down the route of legislation is that it may take a long time to reach an agreement, and it will face substantial resistance from rightsholders who fear for the commercial exploitation of unclaimed works for the gain of those who are merely its conduits. 
Emily's weblog, Copyright for Education, can be accessed here

1 comment:

John R walker said...

As I understand it the legal status of search engine scanning of web pages for indexing is itself a grey area- being effectively opt out rather than opt in. ( And the protocols involving the 'robot text file' are purely a voluntary gentlewoman's understanding)

Have read an opinion that an adverse finding about scanning for indexing and snippet purposes of books , could threaten the legal basis for web indexing algorithms.


The GBS was very controversial. It was far too complex and ambitious to be understandable and it linked a settlement over past actions with imposition of serious limitations over future individual economic rights. The attempt to use the court to bypass what is clearly a matter for legitimate elected authority also guaranteed that it would be fought hard. Taxation without representation is not a very salable concept in a democracy.

A solution to the GBS in its totality is, I believe, not possible. But legislative, pragmatic , bit by bit solutions to the many components that were tied together in the bundle is possible.