Samuelson Says Google Book Settlement Doesn’t Reflect “Public Trust Responsibilities”

At "D is for Digitize" conference, keynoter disagrees with settlement defender Courant

Norman Oder -- Library Journal, 10/13/2009

• Courant says deal is worth it
• What if Google sells corpus to Rupert Murdoch?
• Pressure on settlement parties to get deal done

“You create a public good this substantial, guess what: public trust responsibilities come with it.” So said University of California law professor Pamela Samuelson Friday during a keynote lunch at the D is for Digitize conference, held at New York Law School.

And Google and the plaintiffs, the Authors Guild and the Association of American Publishers, have not responded sufficiently, she said, noting concerns about price-gouging for institutional subscriptions and user privacy. With Samuelson on the dais was Paul Courant, the University of Michigan library dean, a Ph.D economist and self-described “faux librarian,”whose library was the first to agree to have its works scanned by Google and supports the project.

“I think the public trust responsibilities are and ought to be widely shared,” Courant said. His bottom line: the benefits of the deal are worth the costs.

Google and the plaintiffs are in the process of revising the settlement with the intention of presenting it to a federal judge on November 7. At the conference, various academics and digital commentators debated and discussed the settlement from several angles (see LJ coverage of ads in institutional subscriptions and the future of libraries).

Benefits and costs
Moderator James Grimmelmann, the New York Law School professor and Laboratorium blogger who organized the conference, asked the duo about their current thoughts on the settlement.

Courant said it “raised the real possibility” that a large corpus of books, preserved at great cost and via a dying business model, would become broadly available in a way that was unimaginable technologically 15 years ago and distant even four or five years ago.

“And suddenly, in one fell swoop, that seems to a humble economist like a magic trick of law,” he said. “[W]e were able to get to this place that I have wanted to get to for a long time.” Now, he said, he wasn’t so sure. While he said he preferred to make policy openly, via legislation—rather than have a settlement make available to Google the out-of-print but in-copyright “orphan works” it has scanned—“my confidence in Congress could be better.”

Samuelson followed up: “I love books, and I want access to them too. I think the most important thing that Google has done is to help to persuade us it’s a public good to have a corpus of digitized books that’s searchable, that’s accessible, that offers some greater public access.”

Price gouging?
While there’s much she likes in the settlement, Samuelson said the criteria for price setting raised a red flag, given that pricing is supposed to be based on comparable products and services: “I asked [Google point man] Dan Clancy what are the comparable products and service; he said there are none. I said that doesn’t give me much comfort.”

Samuelson said she wasn’t worried about the short-term or even the next decade, but rather the longer-term. She also expressed concern about the limits on printing, as well as the printing fee. And Google’s statements about privacy, she said, weren’t enough.

“The first thing you ever said to me Dan,” she said, pointing at him, was “'we have to do it through the class action process, because Congress is broken.' Well, I have some concerns about saying, well, one branch is broken, so let’s break another branch.”

Grimmelmann asked Courant if he had similar reservations. Courant said that he thought the settlement was the best outcome. He asked the lawyers in the room: “If [Google’s] behavior down the line were egregious, don’t we have some laws we can get to after the fact?”

He also added what he called two “imperfect bits of analysis.” Though the settlement is important, out-of-print books do not constitute “a really rich market… It’s not quite market power in the buggy whip industry, there’s more to it, but it’s also not market power in the next new thing.”

“There is an enormous amount of competing product built in,” he said, noting that searching without access to the full database could still generate 20% of a book's contents.

“There are risks,” he allowed. “The benefit looked very large, the risks manageable.”

Growing market?
Samuelson disagreed somewhat with Courant’s economic analysis. Google, she said, recognized “that out-of-print books have more value to society and have more commercial value than their out-of-print status today would suggest.” Today’s small market, she said, “won’t tell us much about the market of the future.”

“I don’t think Google would be scanning all these books if they thought they were all valueless,” Samuelson added. She said she wouldn’t worry about price gouging if Clancy “could live forever and could keep to all his promises.” The settlement “gives Google the right to sell the corpus,” she said. “Suppose they sell it to Rupert Murdoch… Wal-Mart... They could sell it to China! There’s sort of a ‘too big to fail’ problem.”

 Then, in 25 years, when many universities have shed books because of their reliance on Google Book Search, “you’re stuck. Price gouging kicks in then.” And while public policy could rein in abuse of privacy, “if you have a monopoly and charge monopoly rents, you’re just a lucky stiff.”

Courant returned to his suggestion that the 20% search, along with interlibrary loan, could serve as competition. But if there are no alternative copies, and Rupert Murdoch is in control, he mused, “I think it’s an interesting story you’re telling, and I’m willing to think about it.”

Who to listen to?
Grimmelmann asked the panelists what roles they serve in the public debate, and whether, as academics, they have any influence on the court.

Courant said that the court should take into account academic practitioners, given that “a reasonably large fraction of activity [in Google Book Search] will be through and around universities.” Samuelson reminded the audience how she, in a letter to the court, had stressed that academic authors might prefer that their work go directly into public domain or be made available via a Creative Commons license.

“So one of the contributions I’ve made is that both the Authors Guild and Google have announced they’ll try to facilitate those open access preferences,” she said.

Public trust
Grimmelmann pointed out that while private companies are responsible to their shareholders, “Google has a ‘Don’t be evil’ mission.” Meanwhile, people at universities and libraries have something of a public trust. So which institutions will safeguard the public interest?

Courant said academic libraries do take that responsibility seriously, and will “make damn sure there are some secured good copies” to verify the record if there are problems with Google Book Search. “I am persuaded personally that the current [Google] leadership went into this because they want to organize world’s information.”

“Every university library I’ve spoken to [about Google Book Search] has emphasized what an enormously important resource a corpus of books from major research libraries is and what a public good it brings about,” Samuelson said. “Having said that, almost all would prefer that libraries being doing it themselves and organizing it, but various impediments exist to bringing about that vision.”

“I think Google is very good at holding themselves out as doing the public an enormous favor,” she added. “I think they want all the benefits of creating a public good without the public trust responsibility.” 

She disagreed somewhat with Clancy, who on an earlier panel had said “probably half the agreement” reflects public concerns. “I don’t think it’s half,” she said. “I don’t think we’re all the way there. So I’m going to continue to nudge until the public trust responsibilities are worn as well as the public good cape.” 

What next?
Grimmelmann asked what the parties should do in the next month.

“I think they should be doing more reaching out,” Samuelson said, reflecting the concerns of the Open Book Alliance and others that a renegotiated settlement would have to include more concerned parties. “I don’t believe that’s happening.” 

She suggested a financial spur: “There’s forty-five and a half million dollars on the line. The lawyers negotiating don’t get it unless and until the settlement is concluded. They have an enormous incentive to get the agreement done and not to change it much.”

She did predict changes in the revenue models for the settlement; for example, revenues for books whose authors can’t be found likely won’t go back to the Book Rights Registry’s “favorite charity” but instead should be used to lower the price of subscriptions. 

“That piece stuck in my craw,” Courant agreed. “One thing you could do is give it to the libraries so they could afford to buy Elsevier journals.”

Courant targeted
Antitrust attorney Gary Reback, who is part of the Open Book Alliance, went up to the microphone and threw some tough questions at Courant.

“I was astounded by your comment that there’s no money in this deal for Google, it’s a monopoly of the buggy whip market,” Reback said, distorting Courant’s statement somewhat. “I read in the press that, after the settlement was proposed, Michigan came back and negotiated a better deal.”

“We renegotiated our contract in contemplation of the settlement,” Courant agreed.

Aren’t there additional benefits to the University of Michigan, Reback asked.

Yes, Courant said, noting that prior to the settlement “there was no contemplation this product would exist.” 

“You’ve presented this as an eleemosynary deal,” Reback continued. “All I’m suggesting is there’s a little more in it for Michigan.”

“We get credit for having contributed five or six million volumes,” Courant agreed. “That will lead to a discount on our site license. It will be free for a period of years.”

Reback pointed out that Michigan has a deal with Amazon.com to reprint public domain books.

“We get a small cut of the retail,” Courant said.

“So there’s money for print-on-demand?” Reback continued. 

Grimmelmann intervened: “I think we ought to take the cross-examination off line.” 

Courant got the last word: “I didn’t say there wasn’t money [for Google]. I said there wasn’t an enormous amount of money.” 

Libraries sold short?
Another member of the audience, computer scientist and former Harvard College dean Harry Lewis, offered an observation: “The tragedy here is that the universities may have given something of enormous value away without getting enough back, not necessarily for the universities themselves but in the broadest sense.” 

“Speaking as custodians of knowledge not just for ourselves but for everybody, do you think universities did as much for the future of knowledge in exchange for what they allowed Google to get?” he asked. 

“As much as they could’ve done, who knows?” said Courant. The value to universities of having digital copies held by the library—scanning partners get copies—“is very, very large.” He cited hundreds of millions of dollars in production costs and the archival benefit of such copies. 

Samuelson said academic authors would have fought for a better deal. “I think part of what makes it difficult is that some part of the deal was cut before the libraries were brought in,” she said. “Because it’s our books that were being scanned, and we’re going to be the major users of this, it seems to me that the deal ought to work for us. In some respect it does and in some respects it may not.” 

She then brought up the issue of whether institutional subscriptions would come with advertising.

Final thoughts
Grimmelmann asked the panelists for final thoughts.

Samuelson repeated that a public good this large has public trust responsibilities. And Courant said those responsibilities “are and ought to be widely shared.”