Yesterday, Dr. Alan Inouye, Director of the American Library Association’s Office for Information Technology Policy, participated in a panel called Copyright, Content and Class Action Lawsuits: A Debate on the Google Book Search Settlement. The talk was sponsored by the Information Technology and Innovation Foundation (ITIF), and held at the Library of Congress in Washington, D.C. Dr. Inouye offered remarks on the proposed Google Book Settlement from the library and public interest perspective. Also contributing to the panel were Dr. Daniel Clancy, Engineering Director for Google Book Search, Allan Adler, VP of Government Affairs for the Association of American Publishers, and Peter Brantley, Director of Access for the Internet Archive. Daniel Castro, Senior Analyst at ITIF, moderated the panel discussion.
Mr. Castro gave a brief overview of Google’s Book Search Project and proposed settlement agreement. Panelists then offered remarks. Dr. Clancy presented a little background information about how the settlement came about. He reiterated that Google still feels that it was OK for it to be able to scan and index copyrighted books. He said that Google didn’t start the Book Search project to pick a fight on fair use, but rather wanted to increase access to books. Clancy said he and others at Google realized that users wanted to see lots more than just the 3 “snippets” provided when queries are made on the Google Book Search database today. He said that basic search and discovery are good (and have always been central to Google’s mission), but users really want a world where they can find stuff very easily. “If kids can’t find it,” Clancy said, “they think it’s not there.” Under the terms of the settlement, he said that Google can provide better access, and that authors and publishers can be fairly compensated.
Mr. Adler said that it is important to understand the underlying context of the settlement. He said that early in the Book Search project, Google came to publishers to make individual agreements to scan and index their books. He said that the publishing industry is not naive–he claimed the community was open to exploring how and when to make books available online. But, Adler said publishers got upset when Google crossed over into making separate agreements to scan the entire collections of libraries. Under the library program, Google scanned everything in the library’s collection, switching from and opt-in “is this OK before we do it?” system to an opt-out “tell us if you don’t want to be a part of this” system. This switch in philosophy and practice is what brought about the original copyright infringement lawsuit against Google. In terms of the settlement agreement, Adler feels that authors have benefited, and that parts of the settlement benefit the public generally. He also championed how the settlement addresses issues of accessibility for disabled persons.
Dr. Inouye presented comments reflecting a coordinated position of the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. Inouye said the associations will be submitting comments to the court as members of both the author and publisher subclasses, since the associations both write and publish books. He said the the associations have been agonizing over the proposed settlement. On the one hand, said Inouye, the settlement provides unprecedented access to information. Inouye predicted that the post-settlement Book Search tool is likely to become valuable resource for library users and the public. On the other hand, he cautioned that some provisions of the settlement may compromise fundamental library values, such as privacy and intellectual freedom. Inouye said that a key concern will be the pricing of the institutional subscription that will be offered for purchase by university and public libraries. While the settlement documents indicate that the pricing of the institutional subscription will be determined by analyzing comparable products and services, Inouye questioned how this will work on the ground, since there are no real similar products to compare it to right now. He also mentioned that since the settlement is a dispute between Google, the Association of American Publishers and the Authors Guild, there was no mechanism for input from libraries and the public. Inouye said that there is little to nothing in the settlement agreement that describes protections for personally identifiable information for users participating in the consumer purchase feature, although he assumed that for the institutional subscription information would be aggregated and not tracked per individual user. He went on to say that inadequate privacy protections could also produce a chilling effect on intellectual freedom, as users are less likely to explore particular lines of inquiry if they feel uncomfortable with uncertain information gathering techniques employed by Google or the Book Rights Registry. As a contrast to the paltry user privacy protections in the settlement, Inouye noted the extensive sections outlining cumbersome security provisions inserted to make sure rightholders content is secure. He said that while the associations do not outright oppose the approval of the settlement, they will urge the court to exercise strong oversight in the application of the settlement provisions moving forward.
Mr. Brantley stated that the Internet Archive has filed a motion with the court to intervene as a party defendant. He said that unlike the library associations, the Internet Archive was not conflicted in its opposition to the proposed settlement. Brantley disclosed that he had helped negotiate the original contract between Google and the University of California when UC had joined the Library Project a few years ago. But, he suggested that the proposed agreement would give Google license to in essence privatize our nation’s libraries, and that the settlement could spawn a new and unsettling form of media consolidation. Reading from a prepared statement titled “A Future for Books?” attributed to Brewster Kahle, Brantley said that the Archive’s primary opposition to the settlement was due to the inclusion of books that are considered orphan works–in this case books whose copyright holders are not known. He said that the settlement would create a class that by definition “includes millions of people who will never come forward…[and] Google and Google alone gets an explicit, perpetual license to scan and sell access to these in-copyright but out-of-print orphans.” Brantley suggested that legislation–not a private settlement–is the best way to address orphan works. He said that since the orphans have no one to speak for them, the Archive wants to remove them from the settlement altogether.
The panel was videorecorded. We’ll post a link from ITIF once we get it.