Summary of the Google Book Settlement Session at ALA Midwinter Conference

Reproduced here via OITP’s Google Books Settlement site.

ALA’s Committee on Legislation and Office for Information Technology Policy hosted a panel session Saturday at the ALA Midwinter Conference in Denver. The session was called “Google Book Settlement: What’s In It For Libraries,”   and aimed to educate librarians on the initial terms of the settlement, hear from leading a few leading library and legal experts, and offer time for audience members to pose questions to the panel participants.

As mentioned in an earlier post, panelists included Dan Clancy, Engineering Director for the Google Book Search Project, Paul Courant, Dean of Libraries at the University of Michigan, Karen Coyle, Digital Librarian and Consultant, and Laura Quilter, Librarian and Attorney at Law.

Dan kicked off the panel by giving a brief overview of the main points of the settlement. He stressed that the agreement is a compromise, and settles the class action lawsuit between Google, the Association of American Publishers, and the Authors Guild. The explained that the settlement class includes anyone with copyright interest in a book before published before January 5, 2009.

dan-clancy

Dan said that the settlement does not affect books in the public domain, and does not include journals, magazines, newspapers, and images if the rightsholder of the image in a book is different than the rightsholder of the book itself. The settlement also applies only to rightsholders in the United States.

Mr. Clancy explained that the settlement allows Google to continue to scan, index, and otherwise use non-display versions of books. This corresponds with the default status today for in print books. Currently, Google’s scan index the contents of books, allowing users to search the full text of works, but only displaying up to 3 snippets of text per work (a snippet is considered a “non-display” use).

Under the proposed settlement, the default status for out of print (also called “not commercially available”) will be that access models are turned on–rightsholders of out of print book can opt out if they wish, but the default will be to include their materials under the settlement provisions. Rightsholders of in print books need to opt in (this is how it’s always been).

Dan explained four models of access under the proposed Google Book settlement. First, there will be the online consumer purchase, where individuals can create an account with Google to purchase perpetual access to the full text of an individual in copyright, out of print book. He called this service the “digital locker.” Second, he said that all users will be able to preview up to 20% of a book (more or less, although there are some stipulations to this–see “A Guide for the Perplexed for more detail…). He said that Google will also provide links to where users can find the physical book in the library, or purchase the physical book online (such as from Amazon). Third, Dan explained briefly the concept of the “institutional subscription database” (ISD), which will include essentially the entire database of in copyright, out of print books. Universities will be able to purchase access to the full or subset portions of the ISD, depending upon the number of FTE equivalent students there, and those users will be able to access the ISD remotely. These types of users will be able to view the full text of the materials in the ISD, print 20 pages with a single command, and copy/paste 4 pages in single command. There was talk that the ISD should be able to be integrated into the ILS system within a university, making it easier for students to access, and potentially connect it with other Google services used by students and faculty. Fourth, Dan laid out the intial provisions for the “public access service” (PAS). He said that for those libraries that choose not to subscribe to the ISD (public or university), Google will provide one terminal per building which allows for full access to the contents of the ISD. Although users will be charged a per page printing fee, Dan said that Google will pay for the printing costs for 5 years or up to $3 million.

Mr. Clancy touched upon the various levels which libraries may participate under the Google Book settlement. Fully participating libraries will receive what’s called a “Library Digital Copy” (LDC), which comes with certain restrictions and provides for certain authorizations of use. For example, under the fully participating library agreement, Google can return a digital copy of a book scan to the participating library (such as University of Michigan). The library will be absolved of copyright infringement liability, but must follow particular security provisions. These libraries may also receive book scans from other participating libraries under certain conditions (see the agreement summary for more details).

Dan said that Google will set up a process to handle public domain books. He admitted that there are scaling problems in determining whether a book is in the public domain.

Paul Courant said he represents a large academic library (University of Michigan), and feels that it is the duty of his institution to take social responsibility for some pieces of the world’s cultural collection that otherwise might go away. He questioned, “if we hadn’t had the settlement, where would we be now?”Paul referenced the recent article by Bob Darnton, in which Darnton said that if universities and libraries and other organizations would have just stuck together and organized better, we could have had a large scale digitization project without private help. Courant said that this is what everyone would’ve liked, but obviously not what has happened.

paul-courant

Paul said that if we never had the settlement, we would’ve just had snippets and indexing, and not ability to actually read the books. He said that if we never had the settlement, libraries may have tried to negotiate, publisher by publisher, the right to display works. However, he assumed that under this case, the negotiations wouldn’t have gone well, and would’ve probably required libraries to pay money to the publishers for these display rights.

Before Google began its book scanning project, Paul said that this utopian vision of a large, noncommercial digitization initiative had the likeliness of success of 1 in 100,000. However, with Google at the front in the book digitization business now, Paul admitted that the same vision is probably now 1 in 1 million. Courant claimed that the settlement agreement potentially weakens fair use for libraries, since the settlement in effect creates a market for old works, and where there is a market courts are less amenable to fair uses. He said that even though the settlement claims that fair uses are not affected, on the ground, it really is.

Courant said there are many gains for libraries. First, he said that the settlement solves the negotiation problem highlighted above. He said that while class action settlements are generally not very good at solving large coordination problems, it’s what we got and better than libraries negotiating with publishers on a case by case basis. Second, Paul said, for some academic libraries, the settlement provides for a huge increase in the accessible collection. For example, Michigan gets to use materials from Stanford’s collection. For public libraries, he said, the nerdy kid who wants to read 40 year old monographs gets to do it. Third, Courant said that while Google scans are not at archival/preservation standards, there are more usable in more and more cases.

The biggest question Courant wanted to know is “what’s the pricing going to be?” He said that if the pricing of the ISD is going to be like journal pricing, then it’s not going to work for most libraries. But, Paul said he thinks the price is going to be reasonable, if only for the fact that this class of books are out of print for a reason! He said most books go out of print the year they go into print. Courant said that there is a difference between the way libraries subscribe to scientific journals and the way libraries may subscribe to the ISD. The current scientific literature journals have a monopoly on recent stuff, and libraries (at least academic libraries) will continue to feel compelled to subscribe. Courant said libraries like the University of Michigan library has their hands tied here–they’ll subscribe because faculty, researchers, and students demand it. But with the price of the ISD, he claims that if the price is too high, consumers just won’t buy it.

Finally, Courant said that we’re no worse off than we were with the physical books–we just have a richer finding tool. He said that users can still get the physical book from the library or put it on interloan. He claimed that selling things at high prices has not been what Google has traditionally done, so doesn’t think they’ll start now with the price of the ISD. He concluded that there is an ongoing sense of mission at the library that we want the world to read our stuff, but right now we don’t have any other good ways to showing it to you. The Google Book settlement provisions may help with this.

Karen Coyle began by stating that she was not involved in the settlement negotiations, and said that those involved in the agreement bound by nondisclosure agreement (Clancy said this is normally required by the court of members of class action settlements). Karen said she was posing questions from the point of view of libraries that are not signing an agreement as either a participating or cooperating library.

karen-coyle

Coyle clarified that the settlement agreement is a contract between Google and the AAP, and that public libraries are bound by nothing in the settlement. She outlined many of the values that are central to libraries in their efforts to serve library users. Coyle posed several fundamental questions libraries and librarians need to ask about the settlement provisions, including:

  • Does this product serve users?
  • Do library users want to read these books online?
  • What are the collection implications for libraries going to look like 3-5 years down the road?
  • What is the quality of the scans going to be? (she said there may be some room for librarians/archivists to help educate Google on this)
  • What are the privacy implications for users of the product?
  • Will Google serve ads within the product?
  • Will the settlement properly address accessibility concerns, specifically ADA?
  • What are the implications for First Amendment rights and and intellectual freedom, especially since Google and the publishers have the ability to censor or remove controversial books?
  • What are the ways Google and the publishers will maintain transparency down the road, especially at public institutions?
  • Since the product is maintained by a private entity, is the product sustainable? Libraries have been around for thousands of years and have been experts at preservation. Can the book scans be placed into escrow in case Google goes out of business?
  • What are the associated costs to public libraries for the public access service?
  • Do the public access terminals represent a product placement for the members of the settlement (Google and publishers)?
  • Would Google drop this product if it is not profitable to them?
  • Will the settlement agreement inhibit libraries from innovating or participating in creating new technologies an services with their own data?

See more questions from Karen and her remarks.

Laura Quilter, like others, said she felt “wistful” that there would have been a good chance that Google would’ve won the copyright infringement lawsuit brought against it by the AAP and the Authors Guild. She felt there was a strong case for fair use, and that the settlement represents a compromise on behalf of Google with respect to a “permissions culture.” She said that librarians have been trying to push back on this permissions culture.

laura-quilter

Quilter questioned how the settlement is going to shape the market. While she agreed with Courant that we’re definitely a step ahead from where we would have been without a settlement, we must continue to explore where does that trail leads. She said that while librarians are among Google’s biggest fans, we need to retain our representation and autonomy without the need to rely on a private entity such as Google.

Laura said that the terms of the settlement are significantly different from the old scanning agreements that Google had with universities. In fact, she said, the old deal might actually have provided more rights to libraries than the new agreement. Under the new agreement, there is no ability for customized deals with libraries beyond the specific participation levels set out by Google and the publishers in the settlement details.

Quilter also raised several questions about the settlement, including the implications on Section 108 rights for libraries or archives to make reproductions of materials for their users. She also questioned the various ways library services may be encumbered by the settlement, including certain bans on interlibrary loan lending, restrictions on using the scanned materials in university courses, and restrictions on off site access to the books database. Quilter, like others, challenged the public access service provision for public libraries, which sets aside a single workstation for access to the ISD. She said that this access is inadequate for all but the smallest libraries.

Another issue brought up by Laura is that school libraries are left out entirely from the agreement. She also said that there may be some intellectual freedom issues–Google is not subject to information transparency regulations required of public libraries by some state statutes. Quilter again raised the issue of user privacy in relation to the provisions of the settlement, including the ability of Google to record what books users read, which pages get read, how long users spend on an individual page, and more. She contrasted this to the strong privacy protections that public libraries assure their users (Clancy said Google had not thought about this, but was not really interested in this type of data collection).

If Google may remove books for editorial reasons, Quilter advocated for stronger guarantees about what this will actually mean in practice. She also questioned the DRM on the books in the database, and said that users would be able to do what they want with the materials that they purchase. For example, the scans of the books cannot be ported to mobile devices like the Kindle.

Laura agreed with Coyle that if perpetual access is indeed promised with the consumer purchase, we need to make sure this is guaranteed by placing copies of the book scans in escrow, potentially in the care of the library community. Finally, Quilter questioned whether libraries can leverage their market power in order to make changes to the proposed settlement.

We’ll post more from the Q&A in a later post.

About Jacob Roberts

Jacob Roberts is the communications specialist for the ALA Washington Office.

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