Google Book Search Settlement Discussion

This was a session organized by the ALA Washington Office. The session focused on the future rather than on describing the case. It included Jonathan Band, who provides legal advice for the Library Copyright Alliance, James Grimmelmann of NYU, Mark Sandler of the CIC, Mary Beth Peters (who will be retiring as Register of Copyrights at the end of this year) Johanna Shelton (previously a Congressional Committee staff member and now a lobbyist for Google.)

Peters described the proposed settlement as a "bridge too far." The Judge, Denny Chin, recently appointed to the 2nd Circuit Court of Appeals may provide a roadmap to a more reasonable settlement, the two parties are keen to find such a settlement.

Band laid out a series of scenarios and each of the panelists responded to those.

The first was if the settlement is rejected, litigation ensues, and Google is found to have infringed.

Shelton pointed out that the settlement addresses the legacy problem, not the future of books. Google’s future of books is their “Google Editions” in which consumers can buy and store online books in a personal account. This will be an open platform with opportunities for device developers and bookstores. Not proprietary like Kindle or iPad.

Sandler addressed what the libraries partners might do. He pointed out that we still have Hathi Trust with over 1,000,000 books in the public domain and 6,000,000 in copyright. He stated that, “It is inconceivable that anyone with a shred of a sense of social justice will suggest that those files [the 6 million in-copyright digitized books] be deleted.”

The second scenario was that we scale back to scan and snippet display.

Sandler pointed out that this would still be a substantial benefit to people, because they will use Google Books as a discovery service and come to libraries to find the print. Band pointed out that one can also just use of snippets for reference and Grimmelmann noted other fair uses like the ability to search and conduct research across the collection. Peters suggested that under these circumstances other companies could push for legislation.

Grimmelmann used that opportunity to argue for a radical revision of copyright law with shorter, fixed terms and clear notices. Peters, with long experience, pointed out the difficulty of achieving the correct balance in legislation and that Europe was proceeding with mass digitization and using licensing to manage compensation.
Sandler described the recent decision in Viacom v. YouTube as encouraging. Google’s ability to take down when notified was enough. We can do this in higher education; digitize and then take down if the owner comes forward.

My take away from this is that any definitive decision in the Google Book Search settlement is a long way off and when it does come the outcome will be more limited and lead to less radical change in library service than I had hoped. In the meantime we have to proceed to providing access to those Hathi Trust public domain titles, and pursue digital book access via licensing with individual packages and unify the search experience for users via services like Summon.

Here are a couple of unsubstantiated factoids from the presentation: the size of the existing digitized collection at GBS is around 12 million titles -- 2 million in the public domain, 2 million commercially available and under copyright in the Google partners program, and 8 million potentially in copyright scanned from library collections, 20% of those 8 million are orphaned works. About 35% of the public domain works are viewed during any month.