Grimmelman: Google Book Search Deal Should be Approved, Could Be Improved

Andrew Albanese -- Library Journal, 11/13/2008

• Deal overall is beneficial
• Detailed suggestions for revisions
• Deal skirts "portable" fair use verdict, but also potential disastrous loss

With a full reading of the proposed Google Book Search settlement under his belt, New York University professor of law James Grimmelman says the complex proposal may not be ideal but is worthy of approval. “My starting point is that the settlement is a good thing,” Grimmelman blogged on the Laboratorium. “Everyone is better off than in a world where the alternative is no Google Book Search.”

Among the positive aspects of the settlement, according to his detailed reading of the document, are new revenues for publishers and authors; “at least some minimal all-you-can-drink privileges at the fire hose” for libraries; the ability of universities, schools, and other institutions to “subscribe to the fire hose;” and an “incredibly useful book search engine, one that will come increasingly close to being genuinely comprehensive over time.”

Revisions
While he strongly supported approval of the settlement, he also offered an array of cogent criticisms—suitable for framing in your own amicus brief, he suggested, should you so inclined, and should the court allow. Among Grimmelman’s suggestions for improvements:

• Fixing the Registry’s potential antitrust problem by, for example, putting library and reader representatives on the Registry’s board.
• Address Google’s potential antitrust problem by allowing competitors to offer the same services the settlement allows Google to offer, with the same obligations.
• Add reasonable consumer-protection standards, such as prohibiting price discrimination in individual book sales, and adding strict guarantees of reader privacy.
• Add provisions to enhance the public goods generated by the project by making the database of in-print/out-of-print information public, as well as the Registry’s database of copyright owner information.  
•  Require accountability and transparency by, for example, requiring Google to inform the public when it excludes a book for editorial reasons.

Although Grimmelman joined others in lamenting the loss of a “fair use” precedent via the settlement, the deal, he stressed, was overall very beneficial—and the least risky option. “I would rather have a definitive fair use finding than the settlement,” he conceded, “but that’s not the choice on the table.” He suggested the case was the perhaps the most “doctrinally controversial copyright issue since Grokster,” noting there was a “very strong chance” that a court would have, disastrously, found definitively against fair use had the case gone to court. “This bird in the hand definitely beats the ones in the fair use bush.”

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