Google Settlement, Part I: Panel at ALA Conference Discusses Potential Scenarios
By Norman Oder Jul 8, 2010[Also see coverage of an analysis by law professor Pamela Samuelson.]
A panel of experts discussed the complicated potential outcomes for the Google Books Settlement at the panel June 26 during the American Library Association Annual Conference in Washington, DC. (Video here.)
Even if the settlement is rejected, the "genie is out of the bottle," one panelist suggested, given that publishers and authors would be unlikely to tell libraries holding full-text scans to give them back.
How exactly they'd be used, however, would remain in question.
The summary up til now
New York Law School professor James Grimmelman gave a good summary of the issues raised at the fairness hearing in federal court in February.
He suggested a bit wryly that the "groundbreaking use" of a class-action strategy—with the plaintiffs Association of American Publishers and Authors Guild—to resolve the case on behalf of a much larger universe of authors and publishers "makes the copyright issues look simple, clear and straightforward by comparison."
Beyond that, antitrust issues—is this good for consumers and Google's competitors—are "outstanding and quite complicated," he said.
"We're starting to get to the point where it might be more reasonable to expect something" from the court, he said, "but who knows, because Judge [Denny] Chin has been nominated to and confirmed to a position on the Court of Appeals." It's not uncommon for judges in Chin's position to sit by designation and continue hearing the case, Grimmelmann noted.
Mixed results
What might be the result?
"I don't think most people are betting on a total yes," Register of Copyrights Marybeth Peters said, as LJ reported.
The "magic words" from the U.S. Justice Department, she noted, were "it's a bridge too far." So Chin could point out a road map for a good settlement, leaving it up to the parties, who, she suggested, would "very much want a settlement."
Peters a bit wearily said she's spent the last five years trying to bring Section 108 of the Copyright Act, the library exception for replacement and preservation copies, "up to today's digital environment." And, she declared, "We're not even moving forward on that until we see what happens with Google Books."
She's also spent her energies on orphan works legislation, trying to clear the copyright status for out-of-print but in-copyright books whose rightsholders can't be found. Now the ground rules have changed, if Google's not required to search for the rightsholders before books are scanned. "All the other players—they're saying, if Google doesn't have to do a search, why should we?" she said.
The resolution of the settlement "will very much determine whether we have an orphan works bill." All of Google's rivals, such as Microsoft and Amazon, will ask Congress "we want what they got."
Multiple scenarios
Moderator Jonathan Band, a consultant to ALA's Washington Office, offered three scenarios, in which the settlement is accepted, rejected with a road map, or rejected with the parties having to go back to 2004, with only public domain materials available.
Johanna Shelton, Senior Policy Council with Google, said "Google's very much focused on the case as it stands and where it stands."
She downplayed it's importance somewhat: "We think it's vitally important for the cultural heritage of the country... but it's really not the future of books, it's about the past." She described it as "essentially a legacy problem of how we transition books tied up by copyrights that are unclear."
What do library partners do?
Band asked Mark Sandler of the Committee on Institutional Cooperation (CIC), which includes several library partners, what they'd do in the case of Scenario 3. "They already have ten to 15 million scans that Google has given them."
"Like Johanna, we try not to contemplate Scenario 3," Sandler said. However, he noted that if it did occur, "we still have a considerable volume of content that's scanned and in the public domain, and we consider that untouchable."
There are more than one million public domain volumes in the HathiTrust digital repository, he noted, and "even if that's all that remains, it's a benefit," given that it was taking libraries a long time to do such work.
If there were some 8 million volumes, he said, with 85% in-copyright materials, "would the plaintiffs say those copies need to be destroyed?... It just seems illogical, when we've come this far down this road to identify the public benefit."
"I'd think there'd be some accommodation certainly with what academic institutions are doing," he suggested, "even if Google were pushed out of that formula... It's inconceivable to me that anyone with a shred of social responsibility that we should go back to the year 2003 and assume that this access is in the hands of the rights holders only."
Band observed that the plaintiffs could join the libraries as defendants, but suggested they hadn't been added at the beginning because "they realized that fair use argument was much stronger."
Would libraries be satisfied with a scan-and-snippet display now that they've tasted the possibility of full-text?
"I think we would all prefer to have full-text display," Sandler said, but "I think we could live comfortable with snippet display." He noted that the HathiTrust can provide page references—and "we actually have the print books in our libraries to drive users to, if in fact that discovery works."
Changing landscape
"If in fact there is a settlement, and it passes muster with the court," Peters observed, then other companies are going to push for orphan works legislation.
Shelton, commenting on the "bridge too far" language, said the settlement is "as far as I know, the only bridge that gets us across the chasm."
She said many people assume wrongly most books scanned are orphan works. Rather, that number is "at most 20 percent." The "big category is books that have two parents, an author and a publisher, and the parents are in a custody battle."
She added that, in Europe, "we are starting to have conversations about mass digitization," and cultural leaders there are moving ahead, given that they think U.S. students and researchers would get an advantage over the database.
Grimmelmann said the underlying problem needed to be solved by "deep structural changes in copyright [that] make books widely available for broad use."
In a statement that drew applause from the audience, he observed, "I sort of view all of this monkeying about as us being trapped in a political system that has made unfortunate choices... and not having the political will to confront those changes directly."
Peters said it would be tough to legislatively duplicate the Google settlement, given that it contemplates "scanning going on forever." She said another way to go is a statutory license, far more common in Europe.
As for Harvard University Librarian Robert Darnton's idea of a publicly-funded national digital library, "Congress will not move" in the current funding environment.
Band noted that any kind of legislation would be good for Google, given that it has a head start on its competitors.
