With Google Settlement Rejected, Library Groups Keep Eye on Access
By Josh Hadro Mar 24, 2011The rejection of the Google Settlement on Tuesday has prompted an outpouring of reaction to Circuit Court Judge Denny Chin's svelte but loaded 48-page opinion [PDF]. In the mix are a variety of takes on the effect this will have on the library access to scanned books; many are mentioned below, but for a kitchen-sink list, see librarian Gary Price's roundup on his new INFODocket report site.
What the vast majority of librarians hoped to see out of this lawsuit was a precedent-setting determination on the fair-use right to index and search copyrighted materials (recalling the scope of the initial complaint against Google). Barring that, most considered an acceptable consolation prize to be easy access to a full-text union archive of the nation's premier research collections, as the settlement would have provided.
As of Tuesday, neither of those options are in the offing. What librarians can look forward to instead: a renewed commitment from library advocates to make more content accessible to scholars and to the general public, whether via an alternative settlement agreement or legislative recourse.
Next steps
The first question following Chin's rejection of the settlement: what comes next? According to academic librarians with a legal background (including Columbia's Kenneth Crews and Duke's Kevin Smith, among others), there are three options: appeal Chin's determination, restructure of the settlement terms, or continue the trial set in motion prior to this lengthy settlement detour. Most sources take that to be the order of likelihood, though settlement watchdog and New York Law School professor James Grimmelmann maintains a revised settlement is most appealing to the suit's parties.
Helpfully, the Library Copyright Alliance (LCA)—which includes the American Library Association (ALA), the Association for College & Research Libraries (ACRL) and the Association for Research Libraries (ARL)—has released a new flowchart indicating "Paths Forward for the Google Book Settlement" [PDF], anchoring readers with a "You are here" indicator.
Jonathan Band, counsel to the LCA, also is working on what is likely to be one of the definitive pieces of library/GBS analysis, due soon, according to ARL's Policy Notes blog.
Of note, Chin's opinion directly cites University of California, Berkeley law professor Pamela Samuelson, writing on behalf of academic authors who wished to see their work widely disseminated and not restricted for license as part of a larger corpus marketed to libraries.
In an an extensive interview with the Chronicle of Higher Education, Samuelson discusses the acknowledgement:
The thing that surprised me about the opinion was that he took seriously the issues about whether the Authors Guild and some of its members had adequately represented the interests of all authors, including academic authors and foreign authors. That was very gratifying because I spent a lot of time crafting letters to the judge saying that academic authors did have different interests. Academic authors, on average, would prefer open access. Whereas the guild and its members, understandably, want to do profit maximization.
The rejection of the far-reaching settlement has essentially stalled progress on the issue of access to orphan works, at least until Congress takes up the matter, as Samuelson notes. Likewise, the LCA today issued a statement pushing for copyright reform to address orphan works:
The decision makes clear that copyright law continues to present significant barriers to libraries and other partners interested in engaging in mass digitization initiatives. Such initiatives provide broad, deep, and important public access to cultural and historical resources to users throughout the world. The library community has always supported-and worked long and hard for-constructive and practical orphan works legislation that would benefit all stakeholders.
Pushing for access
In the meantime, libraries and allied organizations are committed to pushing forward on digital access. As Grimmelmann put it, "The Google Books settlement is dead. Long live the digitized book."
Most prominently, the HathiTrust digital archive wrote a statement signaling its intentions to continue providing "full-text search" (and some viewing, based on copyright law, noted below) of materials. Its collection now covers some 8.4 million volumes, three-quarters of which are still under copyright.
Given this ruling, the HathiTrust partners will continue providing comprehensive full-text search of the repository and uses of in-copyright materials that fall under sections 107 and 108 of U.S. copyright law: access for users who have print disabilities, and lawful uses of digital copies of materials that are damaged, deteriorating, lost or stolen, and not available at a reasonable market price. In addition, we will continue to pursue our extensive review of works published in the United States from 1923 to 1963, providing access to works that did not comply with copyright formalities of the time, and our work with authors and publishers who wish to open access to their works in HathiTrust. We will continue to strive to provide as much access as legally possible to materials in the repository, for discovery, reading, and computational research. We hope that the rejection of the Settlement will lead immediately to meaningful progress towards orphan works legislation.
Besides the HathiTrust, the Digital Public Library of America, a confederation of library interests corralled by Harvard's Berkman Center for Internet & Society seems to be adopting the most confident demeanor. The public voice of that effort, Harvard University Libraries director Robert Darnton today considered the issue in an opinion piece for the New York Times:
[W]hat we really need is a noncommercial option: a digital public library.
A coalition of foundations could come up with the money (estimates of digitizing one page vary enormously, from 10 cents to $10 or more), and a coalition of research libraries could supply the books. The library would respect copyright, of course, and it probably would exclude works that are now in print unless their authors wanted to make them available. It would include orphan books, assuming that Congress passed legislation to free them for non-commercial use in a genuinely public library.
(Darnton also wrote a similar piece directed toward public librarians for LJ, published on Tuesday.)
The legislative question is now of foremost concern given the breakdown of the settlement agreement, something Samuelson addressed in the interview linked above. There, she alludes to the preparation of a "legislative package that would accomplish some of the positive goals that the Google Books settlement raises as possibilities," though Samuelson admits she's "not wildly optimistic about it."
While librarians recognize that legislative attention to the orphan works issue has the greatest potential benefits, many are wary of the long timelines involved in such endeavors and the very real danger of opposition from any number of industry interests.
