Revised Google Settlement Offers Minor Changes on Antitrust Issue, No Response on Library Pricing
Most foreign language books out; showdown coming with Department of Justice about orphan works?
Norman Oder -- Library Journal, 11/14/2009
- More than one free terminal authorized at public libraries
- No discussion of pricing of institutional database
- Open Book Alliance: fundamental flaws not addressed
Shortly before midnight last night, Google, the Authors Guild, and the Association of American Publishers released a revised version (PDF) of the Google Book Search Settlement, with some clear concessions to foreign rightsholders (as noted by Publishers Weekly), a vague—and, to critics, fatally inadequate—concession on orphan works. There was also no response to library concerns about pricing of the potentially monopolistic institutional database—an issue that Google representatives say can't be addressed in the settlement.
The one notable response to criticisms from the library community was an agreement that, as Google representatives had already stated, more than one free public access terminal per library building may be authorized.
The revised settlement also incorporates some other concerns raised by the library community and similarly interested parties. The settlement will allow for Creative Commons licensing, which means that rightsholders—notably academics—can ensure their works are available for no cost. And Google won't "provide personally identifiable information about end users to the Registry other than as required by law or valid legal process."
"Ninety-five percent of foreign languages works are out" of the agreement, Authors Guild executive director Paul Aiken said, according to Publishers Lunch. That means "the lion's share of the potential unclaimed works are now out of the settlement."
Library concerns
The role and response of the Department of Justice (DOJ) will be crucial, since critics think that the revised settlement doesn't answer the DOJ's concerns about antitrust issues, notably access by others to orphan works—in-copyright but out-of-print—that make up a crucial part of the Google database.
Library organizations have asked the DOJ to monitor compliance with the settlement and ask the court to review the pricing of institutional subscriptions; currently, only libraries that provided books for Google to scan would have the right to challenge pricing.
Given the Book Rights Registry’s board of directors would not include librarians, library groups said the DOJ should ask the court to review how board members are chosen, and evaluate whether all rightsholders are considered. In the revised settlement, the Registry, which has equal representation of authors and publishers, was expanded to include authors and publishers from the Anglophone countries of Canada, the United Kingdom, and Australia
Criticism lodged
Peter Brantley, co-chair of the Open Book Alliance (which represents Google competitors, consumer groups, SLA, and the New York Library Association) said, “Our initial review of the new proposal tells us that Google and its partners are performing a sleight of hand; fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners. None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice [DOJ] and other critics that impact public interest."
Orphan works
New York Law School professor James Grimmelmann noted that, while foreign, non-Anglophone books had been taken out and the parties had made some tweaks here and there, the "heart of the settlement’s promise, peril, and problems has always been its treatment of unclaimed works—a category that contains the orphan works. Settlement 1.0 allowed Google to use and sell them on an opt-out basis, and Settlement 2.0 does the same. That gave Google exclusive access to a market segment that no one else can enter, and thus raised antitrust concerns."
University of Michigan Library dean Paul Courant, a settlement supporter, had recently expressed support for "a revised settlement (as suggested by the U.S. Department of Justice) that provided competitors with the ability to use the orphan works on the same terms as Google, or legislation with similar consequence."
That didn't happen. "The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation," Grimmelmann commented. "They’re going to try to tough this one out; the DOJ will have to decide whether to back down or to fight, as this amended settlement doesn’t give it one of the central changes it asked for."
Grimmelmann noted that the agreement sets up a scenario in which Google competitors could scan orphan works should Congress change copyright law. Such a speculative possibility, he observed, "doesn’t create actual competition now." And, if Congress does create a statutory licensing system, "why do we need the class action [lawsuit]?"
His conclusion: despite "meaningful, if modest improvements," the central issue has not been addressed.
Google's point man Dan Clancy issued a statement: "The changes we've made in our amended agreement address many of the concerns we've heard (particularly in limiting its international scope), while at the same time preserving the core benefits of the original agreement: opening access to millions of books while providing rightsholders with ways to sell and control their work online."
Google issued an FAQ, including the following questions and answers:
Why did you narrow the class? Why are books from the U.K., Australia, and Canada still included?
After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include countries with a common legal heritage and similar book industry practices.
Does the settlement interfere with Congress' ability to legislate? Does it limit orphan works legislation?
The settlement does not, nor could it, displace Congress' authority to legislate in this area. Congress itself created the class action settlement device, and as several Members of Congress indicated at the House Judiciary Committee hearing in September, the court process should not stop based on the future possibility of congressional action. The settlement is complementary to orphan works legislation; it will increase access to out-of-print books and locate the rightsholders of those books. The settlement in no way limits Congress from taking action on the separate issue of orphan works legislation.
