Library Organizations Urge DoJ To Take Proactive Role in Google Book Search Settlement

Groups express concerns about pricing, composition of Book Rights Registry

Norman Oder -- Library Journal, 8/6/2009

• Letter follows up on May meeting
• DoJ should treat settlement as consent decree
• OCA asks Google to request delay in hearing

The American Library Association (ALA), the Association of College and Research Libraries (ACRL), and the Association of Research Libraries (ARL) have ramped up their request that the Antitrust Division of the Department of Justice (DoJ) intervene in the Google Book Search settlement.

In a letter sent last week, the library groups followed up on a May 27, 2009 meeting concerning the proposed settlement. At the time, according to the letter, the library groups asked the Antitrust Division “to supervise the settlement closely, particularly with respect to the pricing of the institutional subscription and the composition of the board of the Book Rights Registry.”

Proactive role requested
“Upon further reflection, we believe that the Division itself should take a proactive role in the implementation of the settlement,” the library groups said, suggesting that the Division should treat the settlement, if approved, “as a consent decree to an antitrust action it brought.”

That would allow the DoJ to monitor compliance and request court take action when necessary. Notably, the library groups said, the Division should ask the court to review the pricing of an institutional subscription if it does not achieve the potentially contradictory settlement goals: revenue at market rates, as well as broad access by the public. Currently, only libraries that provided books for Google to scan would have the right to challenge pricing.

To perform that challenge, the library groups said, the Division “should have access to all relevant price information from Google and the Registry.” Google so far has not agreed to share such price information that broadly.

The library groups also asked the DoJ to request that the court review any refusal by the Registry to license to potential scanning groups copyrights on books according to the same terms available to Google. Similarly, given that the BRR’s board of directors would not include librarians, the DoJ should ask the court to review how board members are chosen, and evaluate whether all rightsholders are considered.

Listen to the libraries
The letter explains that academic libraries are potentially the most critical constituency: “The likely demand among academic libraries for an institutional subscription is high; faculty and students performing serious research will insist on the ability to search and read the full text of out-of-print books. This means that libraries probably will be among the primary fee-paying users of the services enabled by the settlement. Accordingly, the Division should pay special attention to the perspectives of libraries on the approval and implementation of the settlement.”

OCA calls for delay
Meanwhile, the Open Content Alliance (OCA), which has persistently challenged Google’s project, questioned Google’s support for orphan works legislation that would given everyone the protection Google gained, allowing it to scan out-of-print but in-copyright books whose authors can’t be found. 

(The OCA is administered by the Internet Archive, which has scanned fewer books than Google, but made them available more broadly.)

“At the Internet Archive, we believe that the right way to gain access to orphan books is to not break the law while you are doing it, and to work through Congress to ensure that the people’s voice in copyright is articulated the way the system was designed to work, not through a private, secret deal that we’re being assured is in our best interests by Google,” the OCA stated. “For the browsing, lending, and vending of digital books, the Archive is seeking an open and competitive market with appropriate safeguards for readers, not a monopoly bookstore created by the biggest online advertising company in the world.”

OCA asked Google to request that the October hearing regarding the settlement be delayed and that Google get orphan works legislation passed first.

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