Menings | Opinion > SeminaarKamer | Seminar Room > English > Essays The Google Book Settlement

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Bertus Preller - 2010-09-15

“Was it ever reasonable to think that such a
revolutionary, unprecedented pact, negotiated in
secret over three years by people with loose
claims of representation, concerning a wide
range of stakeholders, both foreign and
domestic, involving murky issues of copyright
and the rapidly unfolding digital future, could be
pushed through as a class action settlement
within a period of months, in the teeth of a
historic media industry transition?”
(Andrew Albanese, Publishers’ Weekly)

 

Introduction

The Google Book Settlement is not only the most significant but also the most controversial development in the history of books, more so in the history of copyright. It is the largest digitisation project ever undertaken and what most people don’t realise is that it paved the way for the world's largest bookstore, offering millions of trade, technical and out-of-copyright (which would also be free) books, available on virtually any device with internet access. Google stands to present what may be the most easily accessible, most vast e-book store we've seen, Google Editions.

There are an estimated 32 million books in the world; 15 million are fiction books and 17 million are non-fiction books. Since 2002 Google has scanned close to 10 million books found in various US libraries, mostly non-fiction books, of which about 15–20 percent are in the public domain, 10 percent are in copyright and in print, and 70–75 percent are in copyright and out of print. These books were scanned without the publishers’ and authors’ consent.

One can argue that books are probably the most traditional of all copyrightable works ever developed, particularly for protecting the authors and publishers of books. Through the years, copyright haS been granted to creators of all kinds of works, from films to software. While most of these other types of copyrighted works are strongly affected by new forms of content production and distribution in the course of the so-called “digital revolution”, books seem to have been relatively immune, at least till now, to these same technological changes.

The Google Book Search has inspired intense controversies between supporters, who paint an optimistic picture of universal access to all books ever published in the world for virtually everybody, and adversaries, who fear the rise of a knowledge monopolist who exploits authors, publishers and readers alike.

The lawsuit

In 2005 two lawsuits were filed in the United States of America, the first by the American Authors Guild in a class action in September 2005, the second by five publishers. The two cases were consolidated later. The plaintiffs asserted breach of copyright, claiming that the scanning amounted to an infringement of copyright. Google, on the other hand, defended, claiming consistently that it was fair use. There was a great deal of case law that came down between the filing of the suit and the first settlement proposed.

The settlement

In 2006 the parties engaged with Google to explore how to achieve a settlement of the lawsuits. Negotiations continued for more than two years. Google brought its library partners into some of the negotiations because the litigants envisioned a settlement under which Google would provide institutional subscriptions to libraries, and the settlement agreement needed to include some provisions for that, including a price setting mechanism. The first settlement (GBS 1.0) was announced on 28 October 2008 and involved a large amount of money paid in a variety of locations, and includes the formation of a Books Rights Registry which will aggregate the royalty collection and the data base management.

In terms of the settlement, $45 million has been set aside as payouts to rights holders whose books Google have already scanned: $60 for each book, $15 for each insert, and $5 for each partial insert. The lawyers for the author and publisher subclasses will get a total of $45,5 million if the settlement is approved. The rest of the settlement funds are being used to create the Book Rights Registry, which will be created upon approval of the settlement, although $12 million has already been spent on administrative matters, such as notifying members of the class about the settlement.

Foreign publishers

Due to the immense load of objections by foreign rights holders an amended settlement was proposed. The most significant change from settlement 1.0 to settlement 2.0 was a significant narrowing of the settlement’s geographic scope and excluded some foreign works by defining covered works to include only books registered in the US or published in Canada, the UK or Australia.

The foreign rights holders objected to GBS 1.0 because under it Google would have got a licence to scan all foreign rights holders’ books and to commercialise those that were not commercially available in the US. This would have meant that Google could have commercialised virtually all foreign books (which are generally not available in US bookstores), unless their rights holders filled out complicated paperwork to protest this. As a result of these objections GBS 2.0 was proposed.

For purposes of GBS 2.0, a “Book” is a written or printed work that meets the following three conditions as of January 5, 2009:

• It was published or distributed to the public or made available for public access under the authorisation of the work’s US copyright owner or owners on sheets of paper bound together in hard copy form; and
• It is subject to a US copyright interest (either through ownership, joint ownership, or an exclusive licence) implicated by a use authorised by the Amended Settlement.
• If a “United States work”, it was registered with the US Copyright Office; and
• If not a “United States work”, it was either registered with the US Copyright Office or was published in Canada, the UK or Australia.

Under GBS 2.0 the only foreign rights holders who remain in the GBS settlement are those from the UK, Canada and Australia. Richard Sarnoff, chairman of AAP, explained that these countries had legal cultures and publishing industries similar to those in the US. How different, though, is South Africa’s legal and publishing culture from that of Canada or Australia?

That GBS 2.0 will take foreign rights holders out of the settlement class does not necessarily mean that Google will no longer scan foreign books. Nor does it mean that foreign books already scanned by Google will be deleted from the corpus. These books will almost certainly be available for Google’s use for non-display purposes, such as the development of better automated translation tools.

Being dropped from the settlement is also no guarantee that foreign books will not be commercialised. If foreign rights holders want to be certain that Google will stop scanning their books, remove the books from the GBS corpus, or cease commercially significant uses, they may have to sue Google to achieve their objectives.

Google does, however, intend to continue scanning foreign books into its search base, and to display snippets in response to search queries. In other words, Google intends to continue the existing Library Project with respect to the foreign books. Because the GBS 2.0 does not cover these books, their rights holders could sue Google for copyright infringement for scanning and snippet display and Google presumably would defend itself by claiming that its activities fall within the fair use privilege. Google also will attempt to negotiate for permission for full text display from foreign collecting societies that have the authority to represent the copyright interests of authors and publishers in their countries.

Eliminating the foreign books from the settlement means the elimination of many of the foreign rights holders from the class of plaintiffs. The plaintiff class is defined as the holders of a US copyright interest in a book under the settlement; if a foreign book is no longer covered by the settlement, its rights holder is no longer a member of the plaintiff class. By removing foreign language books and their rights holders from the settlement, the parties have removed the source of much of the controversy concerning the settlement. At the same time, the products available under the GBS 2.0 will be far less comprehensive.

A fairness hearing on the GBS 2.0 was held in February 2010 and is currently being considered for approval by the presiding judge.

Criticism

Publishers fear the “Napsterisation” of commercially valuable books in the event that the GBS may be “hacked” and all of the books therein, including the in-print books which are not available for display uses, “liberated” by the hackers. Even more, attractive online book service providers such as the GBS could invite authors to cut out publishers as the traditional middlemen – especially as they are already being asked to perform the bulk of copy-editing, formatting and other tasks of book preparation anyway.

Some publishers criticise the suggested price-setting procedures, fearing too low digital prices. As planned, Google would set prices for institutional subscriptions to out-of-print books in the corpus in consultation with the BRR, while prices for consumer purchases would be set through an algorithm designed to optimise the market returns for each book, although rights holders remain free to set their own prices for each book. Similarly, some professional authors worry that they will not be adequately compensated for Google’s commercial use of their books in so far as Google keeps prices of GBS institutional subscriptions low.

While some publishers and professional authors are concerned that prices could be too low, library associations and academic authors share the oppositional concern that approval of the settlement could, over time, lead to price gouging for institutional subscriptions. In addition to the power derived from the de facto monopoly that the settlement would confer on Google, super-competitive prices could also result from the consultation with the BRR, whose mission is to represent rights holders who will almost certainly press for higher prices.

Users of the public access terminals at higher education and public libraries will be charged a fee for every page of every GBS book that patrons print out, and this fee will go to the BRR. While photocopying the same pages from a book taken off a library bookshelf would have been free as fair use in the US or as a private copy in Europe, this could be treated as a “precedent” by publishers for charging libraries per-page copying fees more generally.

As GBS e-books will be available only online, readers are not able to lend their books to friends, resell their books or make private copies – all these are free uses of traditional books and at least of some other e-book formats.

Similarly to libraries, consumers also run the risk of paying monopoly prices, as Google intends to sell out-of-print e-books at an average price of $8,65, a rather high price given that in-print e-books are currently selling for $9,99 and sometimes less and are not bound to internet access and server availability as in the GBS model.

Google’s unqualified right to sell the corpus to anyone without getting consent from BRR or anyone else, as well as Google’s technological monopoly, have raised doubts across stakeholder groups with regard to the quality and sustainability of GBS. Even more, Google can exclude books from GBS for editorial reasons, creating a risk of censorship. This risk is particularly salient as GBS searches cannot be conducted on removed books, even for purposes of letting a prospective reader know at which library the removed book can be found; Google is not planning to make a list of removed books available for public inspection and it does not have to say which books were left out.

For readers, inadequate guarantees of privacy protections could have a chilling effect on the willingness of users to read controversial materials, and consequently may diminish the ability of authors of controversial books to earn money from them.

In what new ways will this agreement enable users to access books?

The agreement significantly expands access to millions of in-copyright books through Google Books.

Specifically, readers will be able to access books through:

• Preview. This allows users to freely preview a limited number of pages of in-copyright works to help users decide if the book is right for them to buy. Generally, out-of-print books will be available for preview, and in-print books will not, unless the rights holders decide to activate previews through their participation in this settlement or through the Book Search Partner Program.
• Consumer Purchase. This offers individual users the ability to purchase access to view an entire in-copyright book online. The rights holder may set the price or allow the price to be set by a Google algorithm.
• Institutional Subscription. For academic, corporate and government organisations. Gives members of the institution full access to in-copyright, out-of-print books.
• Free Public Library Access. Authorises free, full-text, online viewing of in-copyright, out-of-print books at designated computers in US public and university libraries at no charge to the library or the reader, with added revenues to the rights holders through per-page printing fees.
• Future Services. The agreement allows for other services and uses, such as Print-On-Demand, Consumer Subscription and others, to be agreed in the future.

If approved, the settlement would provide:

• More access to out-of-print books, generating greater exposure for millions of in-copyright works, including hard-to-find out-of-print books, by enabling readers in the US to search these works and preview them online.
• Additional ways to purchase copyrighted books, building off publishers’ and authors’ current efforts and further expanding the electronic market for copyrighted books in the US, by offering users the ability to purchase online access to many in-copyright books.
• Institutional subscriptions to millions of books online, offering a means for US colleges, universities and other organisations to obtain subscriptions for online access to collections from some of the world’s most renowned libraries.
• Free access from US libraries, providing free, full-text, online viewing of millions of out-of-print books at designated computers in US public and university libraries.
• Compensation to authors and publishers and control over access to their works, distributing payments earned from online access provided by Google and, prospectively, from similar programmes that may be established by other providers, through a newly created independent, not-for-profit Book Rights Registry. The Book Rights Registry will locate rights holders, collect and maintain accurate rights holder information, and provide a way for rights holders to request inclusion in or exclusion from the project.

Conclusion

The benefits of the Google Book Settlement remove a dark cloud of liability from the heads of Google and the cooperating libraries. It will also vastly enhance public access to books and revenues will flow to authors and publishers who register with the Books Rights Registry or those who join the Google Partner Programme. Authors and publishers who do not want their books in the Google Book Settlement can ask for removal. New business models and more choices for consumers will be created, books will be accessible from virtually any device, and being in-the-cloud books can be accessed from anywhere. Google has also has committed itself to enhancing access to books for disabled persons. Public library access will promote educational opportunities for poor and minority communities.

Apart from the benefits there are also some very worrying aspects that one should keep in mind. Let’s assume that GBS is approved in modified form and works as intended for 10 to 15 years, libraries and researchers become dependent on it and shed books since they no longer seem necessary – the fact is that Google could sell GBS to Rupert Murdoch or China.

Many aspects of the settlement agreement are brilliant, but other aspects are deeply troubling, maybe even evil.

It is very worrisome that this agreement, which was negotiated almost in secret by Google and a few attorneys working for the Authors Guild in America and AAP (who will get up to $45,5 million in fees for their work – more than all of the authors combined), will create two complementary monopolies with exclusive rights over a research corpus of such a magnitude.

The Google Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a complete restructuring of the whole book industry’s future without much meaningful government oversight. Whatever Judge Chin rules, an appeal is likely. Litigation may resume, but the parties cannot be looking forward to this. The Google Book Search is one of the most significant developments for copyright and for the book industry in decades. So many objections have been raised and it is hard to believe it will ultimately be approved. But even if it isn’t approved, GBS has dramatically changed the landscape in the US and abroad.

• Bertus Preller is an attorney specialising in Publishing and IT Law at Abrahams and Gross Inc, Cape Town. Tel 021 422 1323.

 

• Read Etienne van Heerden's interview with Bertus Preller here.