Library Groups Step Up Criticism of Google Settlement; Some Academic Institutions Support It

Deadline for comment extended until September 8; could GBS replace ILL?

Norman Oder -- Library Journal, 09/03/2009

• Colleges say institutional subscription database would help
• Academic authors may want pricing to be low
• Antitrust battles—is GBS a "new good"?

In a flurry of comments filed with the federal court New York overseeing the proposed Google Book Search settlement, library groups have stepped up their criticism, joined by several industry heavyweights. On the other side, a variety of supporters have emerged, notably smaller academic institutions that believe that the institutional subscription database (ISD) would be a far better deal than having to try to match a major research library. Also, one library supporter suggested that GBS could essentially replace inter-library loan.

While the deadline for comment was supposed to be September 4, it has been extended until September 8.

In a supplemental filing addressing developments that have occurred since their earlier filing on May 4, the American Library Association (ALA), the Association of College and Research Libraries (ACRL) and the Association of Research Libraries (ARL) asked upon the court to address concerns with pricing review, to direct Google to provide more detail on privacy issues, and to broaden representation on the Book Rights Registry, currently limited to authors and publishers. 

Pricing issues
While an agreement with the University of Michigan allows Google’s partner libraries to challenge the price of the institutional subscription, the library groups noted that only Google’s partners can initiate the review and, given that they “expect to receive large discounts on the institutional subscription, they may not have the financial incentive” to challenge pricing.

Also, while the procedure allows the arbitrator to order Google to adjust the price downwards, the adjustment amount is limited to Google's net revenue–37% of the subscription price. The library groups said non-partner libraries “must retain the ability to request this Court to evaluate whether the pricing of the institutional subscription meets the objective of ‘the realization of broad access to the Books by the public, including institutions of higher education.’”

Privacy
While Google on July 23 issued an FAQ about privacy and the settlement, the library groups said this “positive first step” wasn’t enough, and urged that Google, prior to the fairness hearing scheduled for October, should "issue a more specific and enforceable statement concerning the privacy measures it intends to take."
 
If the settlement is approved, “Google should continue to consult on privacy issues with the Library Associations and other representatives of user interests,” they said.

Institutional subscription database
While the plaintiffs in the case are the Authors Guild (AG) and the Association of American Publishers, the library groups said that the AG, which represents mostly commercial authors, can't be representative: “based on the composition of the collections of research libraries, it is safe to assume that a very large percentage of the books in the ISD—probably an overwhelming majority—were written by scholars and specialists for other scholars and specialists"

Thus, said, the library groups, the court should consider pricing issues beyond the stated balance of revenue and access: "It is further safe to assume that these scholars and specialists are more interested in the broad availability of their out-of-print books, and their increased access to the out-of-print books of other scholars and specialists, than in maximizing their royalties from Google Book Search. In other words, these class members would want the price of the institutional subscription set well below the profit maximizing point."

Thus scholarly rightsholders should be in the BRR’s board, the library groups said, given the high demand for the ISD and the important role of libraries.

Academic supporters
The Association of Independent California Colleges and Universities (AICCU)—also representing in this case independent colleges in Arkansas, Florida, Iowa, and South Carolina—wrote that they favored the settlement because “the cost pressures facing educational institutions have limited the ability of these traditional solutions to continue to increase content available for students and scholars."

The University of Wisconsin at Madison, like Michigan a partner library, wrote in support, stating, “[a]s a contributor to the project for several years, UW-Madison is familiar with the concerns expressed about the settlement and the project overall. We remain supportive, however, of this settlement as a unique compromise providing mutual benefits to the named parties and interested groups that could not be obtained through advanced litigation.” 

Abilene Christian University endorsed the settlement, as well: “While we do not currently know the cost of this service, our expectation is that it will be significantly less than the alternatives available to us today,” the school wrote. "Without unlimited funding to purchase resources, there is truly no other way we can currently provide access to the breadth and depth of the collections in Google’s partner libraries.”

“Other parties have raised concerns about how the settlement will impact educational institutions and, since the settlement’s full impact cannot be easily predicted, we do share a sense of uncertainty,” the university said. “Nevertheless, it seems evident that the benefits of the settlement will be substantial for our institutions and, for this reason, we support the approval of the settlement agreement.”

Impact on ILL
NY Law School Professor James Grimmelmann noted Wisconsin’s suggestion that ILL could be eliminated: “This aspect of the settlement [print-on-demand, one of the optional New Revenue Models] could also alter or eliminate the traditional interlibrary loan process. In the end, it may be more effective, in respect to both cost and time, to buy a single print copy on demand than to borrow and ship a copy from another library, resulting in additional fair compensation for the authors and publishers.”

Google point man Dan Clancy has also pointed to this impact on ILL.

Abilene Christian, somewhat in contrast, suggested that the ISD would replace ILL, saving time and money as well as more clearly indicating to searchers that the material is worthwhile.

Authors and publishers opting out
The Federal Republic of Germany has opposed the settlement, criticizing “a privately-negotiated document that is shrouded in secrecy, formulated behind closed doors by three interested parties, the Authors Guild, the Association of American Publishers and Google, Inc. ("Google"), resulting in a commercially driven document that is contrary to established international treaties and laws.”

“Even Google's seemingly benign rules on library on-premises display are at odds with the corresponding, but much more limited, rule on such displays in Germany," the brief states. 

“German and European non-commercial library projects, such as the Europeana and the [German digital library], currently in development expose the fallacy of Google's argument that the social benefits of the Google Library Project and Book Search outweigh the copyright interests of the authors and publishers,” the brief states. (Then again, Google Book Search is far larger.).

Similarly, leading book publishers located in Europe also oppose the settlement, saying it’s “fundamentally unfair to foreign rightsholders.” Those class members include Harrassowitz, Media24, Studentlitteratur AB, Norstedts Förlagsgrupp AB, Norstedts Kartor AB, Leopard Förlag AB, as well as foreign publishing associations for the Federal Republic of Germany (Börsenverein des Deutschen Buchhandels), Switzerland (Schweizer Buchhändler – und Verleger–Verband SBVV), Austria (Hauptverband des Österreichischen Buchhandels), and Sweden (Svenska Förläggareföreningen).

Other supporters
The League of United Latin-American Citizens announced support: “Additionally, while the Web has become an incredible source of information in English, Web resources in Spanish are often much less well developed, particularly when it comes to highly-specialized topics like medical information. With hundreds of thousands of Spanish-language books in its database, Book Search enhances the Web for Spanish speakers by opening up the knowledge stored in these books.”

Representatives of civil rights, disability, and education groups were today expected to announce support for the project.

Also, as Grimmelmann noted, “Sony wants to file an amicus brief in support, since they think the Google Book project will boost e-reader sales.” (Amazon, Yahoo, and Microsoft are part of the critical Open Book Alliance; the Authors Guild yesterday condemned Amazon's position, claiming "Amazon's hypocrisy is breathtaking").

The antitrust argument
Grimmelmann has also published GBS: A Reply to Hausman and Sidak, a response to two economists who argue, in Google and the Proper Antitrust Scrutiny of Orphan Books, that “Google Books will be a ‘new good’ coming on the market” and thus a benefit to both firms and consumers.

“The analysis is fine if you think of the Google Book corpus as something created ex nihilo,” Grimmelmaan responds. “It’s not. The central plaintiffs’ argument in the lawsuit was that Google was trying to assemble its corpus by violating copyright. The central feature of the settlement is that a small group of settling plaintiffs are trying to grant Google a license to the copyrights of millions of others who aren’t before the court. This, therefore, is a ‘new’ good assembled from a great many existing goods.”

While Hausman and Sidak “treat orphan works as valueless goods for which there is currently no demand,” Grimmelmann argues that the demand works already exists, while “Google is creating supply.”

Fred von Lohmann of the Electronic Frontier Foundation commented that “Google is ‘creating’ the market for orphan works in one potentially substantial way—by providing search and Preview for free, their services will stimulate new demand for orphan works. I also agree, however, that this is creating some supplemental demand, but not to the exclusion of existing demand.”

Read more Newswire stories:

Google, “The Last Library,” and Millions of Metadata Mistakes

Clues About Europe's Digital Library Future in Europeana Report

Bumps Along the Road for SMU's Bush Library

Columns:
From the Bell Tower—When Every Student Has a Kindle

Peer to Peer Review—The Last Library Is Greater than Google

Architectural Questionnaire for Academic Libraries

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