Monday, November 16, 2009

Revised Google Book Search Settlement Filed

On Friday, Google, the Association of American Publishers, and the Authors Guild filed a revised version of the Google Book Search Settlement. It's now up to Judge Denny Chin to set dates for a notice period, an objection hearing, and the final Fairness Hearing.

A brief overview of the issues that led to the revision, and a summary of some of the changes, is provided by the New York Times.

One of the major concerns of Settlement critics, and also of the Department of Justice, which has urged the courts to reject the Settlement because of anti-trust concerns, was the issue of orphan works (in-copyright works whose authors can't be found), and the fear that Google would gain a de facto digital monopoly over those works. The revision establishes the position of an "Unclaimed Works Fiduciary," or trustee, who will be responsible for all decisions about orphan works, including whether to license rights in those works to third parties. Another potential monopolizing provision, which according to the Times "was widely interpreted as ensuring that no other company could get a better deal with authors and publishers than the one Google had struck," has been dropped.

The concerns of European publishers, which have been distressed by Google's digitization of thousands of European-published books included in US libraries (despite the fact that the Book Search Settlement was supposed to pertain only to US copyright holders), have been addressed by restricting Google's database to books published in the US, Canada, UK, and Australia.

Another major change (per the Authors Guild's upbeat overview of the revision): Google's ability to monetize the database--which in the original Settlement was essentially unlimited--has been curtailed. "Future business models have been pared down to three: individual subscriptions, print-on-demand, and digital downloads. None of these business models can be implemented by Google without approval of the Registry's board, and none can be implemented without notice to all claiming rightsholders, who will have the absolute right not to participate."

Many commenters feel that substantial concerns remain.

According to Settlement critic James Grimmelman, a Google monopoly still looms. His argument is too subtle to summarize here, but he sums it up this way: "Settlement 2.0 confirms that Google will have the only game in town for the unclaimed works...The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation."

The Electronic Frontier Foundation, for which privacy was a significant issue, feels that the revision leaves those concerns unaddressed. The ACLU agrees.

The Open Book Alliance, which has formally objected to the Settlement, calls the revision "a sleight of hand." (What the OBA would have liked to see in an amended Settlement is described here.)

And as blogger Danny Sullivan points out in his coverage of the Settlement revision press conference, the copyright concerns that sparked the original lawsuit--that Google has turned copyright law on its head by requiring rightsholders to opt out of its database rather than in--remain entirely unaddressed (though it's my impression that this issue is falling ever more steadily into the background as the Settlement grinds its way toward approval).

Google's own summary of the revisions can be seen here.

Much more information, including discussions, objections, and documents, is available at The Public Index.

The deadline for claiming payment for books that were digitized without permission has been extended from January to March 31, 2010. However, given the changes, it would seem that consideration should also be given to those of us who, like me, opted out of the original Settlement, and now might want to reconsider. None of the many articles I've read address this issue.

6 comments:

agentgame said...

Addressing your last point, according to the table on page 5 of the GBS "Revised Supplemental Notice" (http://www.googlebooksettlement.com/Supplemental-Notice.pdf), there is supposed to be an "Opt-Back-In" Form appearing on the settlement site at some point.

Victoria Strauss said...

Thanks for the info--I hadn't got that far in my reading.

Frances Grimble said...

You can opt into the Settlement at any time at all. Even if you wait years, all you lose, according to the current draft, is a measly $60 per copyrighted book title (the compensation for the inutial scanning violation).

But, once you opt into the Settlement you cannot opt out for the entire copyright term of the books involved. Which ends years after you've died.

Meanwhile, the Justice Department wants further revisions, and other parties such as the Open Books Alliance want further revisions. You will be bound by the version of the Settlement approved by the courts.

In other words, if you opt in now, you will be bound by a final contract that does not yet exist. Why sign a contract you haven't seen, when you don't need to?

I think the fundamental problems with the Settlement have not changed so far, therefore I'm staying opted out.

Frances Grimble said...

If you opt into the Settlement, and opt-out specific titles from "Display" uses, there seems to be no real penalty to Google if they make a "mistake" and sell those titles in competition with you.

I think Google is capable of such "mistakes" if profitable to themselves. When the Author's Guild suit was first filed, as a PR measure, Google set up a system where you could exclude your titles from being scanned for the Library Project. You could do this as a Google Partner, or as a Non-partner. I did it as a Non-partner, to make sure I was not bound by any legal obligations to Google.

I got an account with a password, and a web page to fill in bibliographic data. I promptly filled in all the titles to which I owned rights, whether in print or not. (The only one that was OP had been superseded by a second edition with the same title.) I added my other titles before their publication dates. They are all still in print, except that first edition.

I filled in eight titles. Five of them now appear in the Google Book Search database. It is therefore likely that they have been scanned. Yet, I logged into my opt-out-of-scanning account today and they are all listed there as _not_ in Google Book Search.

If Google doesn’t honor the opt-outs they offer, why should copyright holders trust them?

Victoria Strauss said...

Judge Denny Chin has given preliminary approval to the revised settlement, and scheduled a final hearing for February 18.

It's a blow to copyright, no matter how you slice it.

Frandes Grimble said...

I am not a lawyer, but I believe that all the judge’s "preliminary approval" means, is that the legal process of the suit can carry on. The first version of the Settlement also got "preliminary approval," from the judge, and the media widely hailed it as "suit settled." Not at all. Numerous third parties objected, and after some months this second, minimally revised version was produced.

All the judge has effectively said is, now a revised Settlement is on the table for discussion. Now the Open Book Alliance (www.openbookalliance.org), the US Justice Department, the French government, and all the other parties who objected to the original Settlement, can file their objections to the revised Settlement, more hearings can be held, and so on.

I expect to see a number of other versions of the Settlement, which hopefully will improve considerably, and at best, will be restricted to the parties who are directly participating in the suit, rather than applied to every copyright holder. The revision process will probably go on for months, possibly years.

Copyright holders should definitely consult their lawyers on what I am about to say next. Which is: The Settlement as it stands is effectively a contract between the copyright holder and Google. If you do nothing now, you retain your rights to opt in later. But if you opt in now and file a claim, I believe you may be stuck with the version of the Settlement you opted into, even if it is improved later on. After all, you voluntarily accepted that contract when it was presented to you. Google did huge amounts of PR when the first version of the Settlement was filed, including holding seminars where they “explained” the Settlement to copyright holders and urged them to opt in by a deadline, even though Google must have known the Settlement would be revised later.

I suggest not giving up hope, nor being in too much of a hurry to claim your $60/ per title violated. (Which is all you could lose in the near future for not explicitly opting in.) Not only are some parties trying to increase that payment, you won't see it for years anyway. With the Settlement as it stands, the first action of the Book Registry entity will be to go through all the relevant publisher/author contracts to make sure the parties who filed claims were actually the correct ones according to those contracts, before issuing any payments. However, I could easily see Google beginning to sell the books right away, because there is a provision for Google to withhold payments to rights holders till things are sorted out. Their publishing arm, Google Editions, is supposed to start selling books in the first half of next year.